Sivak v. State

SHEPARD, Justice,

concurring and dissenting.

I concur in the majority opinion except as to Part I wherein the majority holds that the trial court erred in refusing to hear evidence of Sivak’s behavior while an inmate at the penitentiary during the 18 months following the pronouncement of the original death sentence. It is asserted by the majority that evidence of such behavior may constitute a mitigating circumstance which must be considered and ruled upon by the trial court prior to the pronouncement of sentence. Hence, the second sentence of death, the majority holds, must be vacated, and the matter again remanded to the trial court where presumably Sivak will argue that he is entitled to present evidence that he has also been a model inmate of the penitentiary during the period beginning at the pronouncement of the death sentence and until he appears for his third sentencing. From that portion of the majority opinion I respectfully dissent.

I.C. § 19-2515 specifies the procedure to be followed in cases in which the death penalty may be imposed. It provides for a sentencing hearing “for the purpose of hearing all relevant offense and arguments of counsel in aggravation and mitigation of the evidence.” Such a hearing was convened followed the conviction of Sivak, testimony and argument of counsel was presented by both sides, and there was no complaint or indication in the record that Sivak was denied the opportunity to present any evidence or testimony in mitigation. Following that hearing the trial court, as also required by the statute, made detailed findings as to both mitigating and aggravating circumstances. He concluded that the mitigating circumstances did not outweigh the gravity of the aggravating circumstances which he found beyond a reasonable doubt, so as to make unjust the imposition of the death penalty, and hence imposed upon Sivak the death penalty. Those findings, conclusion and imposition of the death penalty were entered by the court on December 16, 1981. They were reiterated in the proceedings which are the subject of this case on Monday, April 4, 1983.

The facts which were found by the trial court in mitigation included that at that *237 time Sivak was 22 years of age, a likely subject to some type of rehabilitation which, however, would be extremely difficult because it had been tried; that Sivak was readily employable and capable of being further trained and educated, ambitious and of normal intelligence; that Sivak was a good member in his church organization, was very active therein, and had the good will of the membership; that although Sivak had been convicted of three previous felonies on December 12, 1977, he had received indeterminate sentences of five years which were to be served concurrently. Sivak served a portion of that sentence at the Cottonwood minimum security facility and was paroled on June 27, 1979, and discharged from parole on September 25, 1980.

At the last sentencing hearing on October 4, 1983, the record reveals that counsel for Sivak offered testimony that Sivak had been “subject to rather remarkable and extreme forms of harassment in the hands of other death row inmates____” I fail to apprehend how such testimony would constitute a mitigating circumstance. Also offered by Sivak’s counsel at that hearing was the testimony of four ministers “concerning [Sivak’s] present spiritual condition” and “his condition which has changed since the court last heard testimony regarding it.” Finally, the testimony was offered of Sivak’s mother who it was stated would testify substantially in accord with the four ministers. Also offered was testimony of how certain “psychological evaluations” were obtained in alleged violation of the psychologist-patient privilege. I fail to see how that testimony could be considered mitigation evidence. In brief, I find nothing tendered as evidence which had not been the subject of testimony at the prior mitigation-aggravation hearing, considered by the court and set forth in his findings as mitigating factors. I find no testimony proffered from guards, prison officials, or inmates except as to his religious beliefs and spiritual well being, and the alleged abuse from other inmates to which Sivak was subjected.

On the other hand, the trial court found aggravating circumstances beyond a reasonable doubt which were not outweighed by the above set forth mitigating circumstances, i.e., that the murder was committed during the commission of a robbery which was planned by Sivak, along with his co-defendant, in part because of Sivak’s ill will toward his ex-employer; that Sivak dominated his co-defendant, and Sivak was primarily responsible for all that occurred; that Sivak knew the victim, bore her animosity, and realized she could identify him if she were left alive; that Sivak and his co-defendant were large, strong, powerful men and the victim was completely under their physical domination; that Sivak was apparently mentally cool and collected with the murder being an intentional rational act; that the murder was especially heinous, attrocious or cruel, manifesting exceptional depravity in that Sivak participated in stabbing the victim approximately 20 times, shooting her approximately five times while sexually molesting her at the same time, and that the victim tragically remained alive for a long period of time thereafter. The trial court characterized the crime as a “brutal savage slaying and sexually molesting of a woman while at the same time butchering her alive.”

At the last sentencing proceeding before the court Sivak was granted and exercised the right of allocution during which time he asked for a new trial on the basis of new evidence, claiming mind altering effects of a pain killer; stated that Sivak’s co-defendant had attempted to kill people before and would again kill, and since the co-defendant had been incarcerated, had shown he could not obey the law; complained that he was not getting adequate medical care because he was on death row; and finally, he accused his attorneys of misconduct and requested a new attorney at a new trial. At no time did he claim to have been a model prisoner during the 18 months, nor indicate the existence of any mitigating evidence to show he was rehabilitated.

Even assuming that the record was adequate to support the contention that Sivak had somehow undergone a total personality *238 change during the 18 months immediately prior to the second sentence proceeding, I find nothing in the decisions of the United States Supreme Court which would require such evidence to be considered in circumstances such as are presented in the instant case. I find nothing in the order of this Court of May 24, 1983, which would authorize, much less require, the trial judge to reopen the previous hearing on mitigating or aggravating circumstances. At the time of the issuance of that order a mitigation-aggravation hearing had been held as required by our statutes and the decisions of the United States Supreme Court. There is no assertion that Sivak was denied the right to present any testimony or evidence in mitigation, and the record discloses that substantial evidence was so presented.

The majority opinion relies on a series of United States Supreme Court cases as requiring the trial judge to hear the tendered evidence allegedly in mitigation of the death sentence. I believe that reliance is misplaced since the circumstances of those cases are substantially different than the case at bar.

In Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976), North Carolina had chosen to enact a mandatory death statute giving the sentencer (there, the jury) no discretion. In Woodson the Court held that “individualizing sentencing determinations generally reflects simply enlightened policy” and that “in capital cases there is required, consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson, supra, at 304 , 96 S.Ct. at 2991 .

In Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), the Ohio statute provided that if at least one of seven aggravating circumstances enumerated was found, the death penalty must be imposed unless one of three mitigating circumstances were found, i.e., inducement by the victim, coercion, or that the act was primarily the effect of psychosis or mental deficiency. It was argued that since only three mitigating circumstances set forth in the statute could be considered, the constitutional rights of the defendant were violated. The Supreme Court agreed, holding, “The sentencer, in all but the rarest kind of capital case, [should] not be precluded from considering as a mitigating factor any aspect of a defendant’s character or record in any circumstance of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, supra, at 604 , 98 S.Ct. at 2964-65 .

In Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982), the Oklahoma statute provided that “evidence may be presented as to any mitigating circumstances or as to any aggravating circumstances enumerated in this act.” Seven aggravating circumstances were defined, but nowhere were mitigating circumstances defined. The trial court sentenced Ed-dings to death, refusing to consider evidence of the defendant’s troubled and turbulent upbringing, asserting that he was precluded from considering that evidence as a matter of law. The Court held that Eddings’ background and character, as well as his youth, were relevant mitigating circumstances and the trial court was required to at least listen to and consider such evidence.

In Skipper v. South Carolina, 476 U.S. 1 , 106 S.Ct. 1669 , 90 L.Ed.2d 1 (1986), the defendant was convicted of capital murder and rape, and the state sought the death penalty. South Carolina’s statute required a bifurcated trial procedure, and at the sentencing hearing the defendant sought to introduce testimony of his good behavior in jail while awaiting trial. In his closing argument for the imposition of the death penalty the prosecutor argued that Skipper would commit further crimes of violence in prison in the absence of the imposition of the death penalty. The Supreme Court held that the good behavior of the defendant in jail while awaiting trial was relevant on the issue of mitigation. However, stated as an alternative ground was the defendant’s right to due process which required he be given the opportunity *239 to rebut the contention of the prosecutor. Three justices concurred only on that narrow ground.

In sum, I view the decisions of the United States Supreme Court as holding that mandatory sentencing is improper (Wood son), and the defendant must be able to introduce evidence in mitigation; that the sentencer cannot preclude evidence of the defendant’s character and record (Lockett ); evidence of mitigation must be weighed by the sentencer (Eddings); and finally, evidence of the defendant’s conduct in jail, between arrest and trial, cannot be excluded (Skipper).

In the case at bar, the trial court would have been better advised to allow Sivak’s presentation of the proffered testimony of the ministers and Sivak’s mother. However, such testimony would have only buttressed the previously entered findings of the trial court relating to mitigating circumstances. The record demonstrates that the trial court’s findings as to mitigation were favorable to Sivak and the proffered testimony could not have made them more favorable. What the majority ignores is the conclusion of the trial court that no matter how favorable the mitigating factors may be, they are overridden and outweighed by the exceptional depravity exhibited by this heinous crime.

I would affirm the entire trial court decision.