State v. Van Tran

DAUGHTREY, Justice,

dissenting.

There are several aspects of this appeal that are troubling. In my judgment, the trial court’s failure to permit individual voir dire of the jury under the circumstances of this case (or to change the venue of the trial), the failure to mute the audio portion of the videotape of the crime scene when it was shown to the jury, and the failure to provide an independent, unbiased interpreter for the only eye-witness who testified at trial constitute such substantial errors that they cannot be brushed aside as merely harmless, especially in a case in which the death penalty is sought. These errors undermine confidence in the integrity of the defendant’s conviction for first-degree murder. But, the single most obvious (and prejudicial) error in the record now before us is the trial court’s faulty instruction to the jury at the sentencing phase of the trial, regarding the basis for imposition of the death penalty.

At the time of this trial, the aggravating circumstance in question, T.C.A. § 39-2-203(i)(5) (1982), encompassed a murder that was “especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.” Having correctly concluded that, under Tennessee law, the murders for which Heck Van Tran had been convicted did not involve “torture,” the trial judge truncated the statutory language of subsection (i)(5) and charged the jury that it could find as an aggravating circumstance that the murder of each victim “was especially cruel in that it involved depravity of mind.”

Many challenges for vagueness and over-breadth have been mounted against Tennessee’s “heinous, atrocious and cruel” aggravating circumstance, beginning as early as 1981. See e.g., State v. Dicks, 615 S.W.2d 126, 131-32 (Tenn.1981). None, so far, have been successful. 1 Perhaps the most complete discussion of circumstance (i)(5) to date is found in State v. Williams, 690 S.W.2d 517 (Tenn.1985), in which the Court based its interpretation of the language of circumstance (i)(5) on dictionary definitions of the terms found in that subsection of the statute, as follows:

The words of the statute must be given their ordinary and natural meaning. In determining that meaning, we refer to the *486 American Heritage Dictionary of the English Language where we find the following definitions:

Heinous — “Grossly wicked or reprehensible; abominable; odious; vile.” Atrocious — “Extremely evil or cruel; monstrous; exceptionally bad; abominable.”

Cruel — Disposed to inflict pain or suffering; causing suffering; painful.” Torture: — “The infliction of severe physical pain as a meaus of. punishment or coercion; the experience of this; mental anguish; any method or thing that causes such pain or anguish; to inflict with great physical or mental pain.” Depravity — “Moral corruption; wicked or perverse act.”

Our statute provides that it is the murder which must be especially heinous, atrocious, or cruel. The second clause of this statutory provision, viz., "... in that it involved torture or depravity of mind,” qualifies, limits and restricts the preceding words “especially heinous, atrocious or cruel.” This second clause means that to show that the murder was especially heinous, atrocious or cruel the State must prove that it involved torture of the victim or depravity of mind of the killer.

“Torture” means the infliction of severe physical or mental pain upon the victim while he or she remains alive and conscious. In proving that such torture occurred, the State, necessarily, also proves that the murder involved depravity of mind of the murderer, because the state of mind of one who willfully inflicts such severe physical or mental pain on the victim is depraved.

However, we hold that “depravity of mind” may, in some circumstances, be shown although torture, as hereinabove defined, did not occur. If acts occurring after the death of the victim are relied upon to show depravity of mind of the murderer, such acts must be shown to have occurred so close to the time of the victim’s death, and must have been of such a nature, that the inference can be fairly drawn that the depraved state of mind of the murderer existed at the time the fatal blows were inflicted upon the victim. This is true because it is “the murderer’s state of mind at the time of the killing” which must be shown to have been depraved. (Emphasis supplied.) State v. Lujan [ 124 Ariz. 365 , 604 P.2d 629 (1979)] supra; State v. Ortiz [ 131 Ariz. 195 , 639 P.2d 1020 (1981)], supra.

Williams, 690 S.W.2d at 529-30 . 2

From this discussion, it can be gleaned that there are two aspects to circumstance (i)(5) — one objective and the other subjective. In order to establish that a murder is “cruel,” it must be shown that objective conduct by the defendant resulted in “torture” to the victim. On the other hand, to demonstrate that it is “heinous or atrocious,” the proof must establish the defendant’s “depravity” as a subjective state of mind. Cf. State v. Graham, 135 Ariz. 209, 212 , 660 P.2d 460, 463 (1983), in which the Arizona Supreme Court, interpreting a similar statutory provision, held that “cruelty” involves the pain and distress visited on the victim, while the terms “depraved” and “heinous” go to the perpetrator’s mental state and attitude, as reflected in his words and actions.

According to Williams , the “apples” of objectivity can be mixed with the “oranges” of subjectivity, but only to a limited extent: torture can be used to establish depravity of mind, on the theory that one must be depraved to engage in the torture of another human being. But there is nothing in Williams that would authorize the specific instruction given the jury in this case, i.e., that cruelty could be shown by nothing more than “depravity of mind.” In this convolution of subsection (i)(5), the subjective state of mind would be used to establish the existence of an objective result, cruelty, and would thus, proverbially, “mix apples with oranges.”

Such a result is clearly improper. Cruelty, as defined in Williams , requires the infliction of pain and suffering, or torture. It is not *487 defined by Williams in- the same terms as depravity of mind, although heinousness and atrocity are. Moreover, in legislative action that appears to concede the vague nature of the tenn “depravity,” the Tennessee General Assembly eliminated that element of circumstance (i)(5) in 1989 and reworded the subsection so that it now reads: “The murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.” T.C.A. § 39-13-204(i)(5) (Supp.1990) (emphasis added). Thus, an entirely subjective standard may no longer be used as the basis for imposition of the death penalty in Tennessee.

The new, wholly objective standard is obviously an improvement, in terms of clarity and rationality. But it may do no more than restate what has been the law in Tennessee since the Court first passed on the constitutionality of circumstance (i)(5) in 1981, in State v. Dicks. In that case, the Court noted that Tennessee’s “heinous, atrocious and cruel” circumstance was similar to those in Florida and Georgia that had been approved by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), and Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 (1976). Going farther, we specifically “approved” the construction placed on the Florida statute by the Florida Supreme Court in State v. Dixon, 283 So.2d 1, 9 (Fla.1973), to the effect that this type of aggravating circumstance was directed at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” Dicks, 615 S.W.2d at 131-32 .

There was no proof of “unnecessary torture” or excessive physical abuse of the victims in this ease. The proof shows that Amy Lee was shot once in the head, “execution style”; Kai Yin Chuey suffered a potentially fatal wound to her throat and at about the same time was fatally shot in the back of the head, “execution-style,” by the defendant. The two women were rendered immediately unconscious by these wounds. Arthur Lee suffered eight bullet wounds as the result of his attempts to seize his assailants’ guns. The defendant admitted shooting Lee point blank in the head, which would have rendered Lee immediately unconscious. Hence, the killing of Arthur Lee does not involve “depravity of mind” beyond that found in any first-degree murder. Indeed, the fact that the defendant told Bounnam not to kill Ging Sam Lee and the fact that the shooting may have been precipitated by Arthur’s struggle are both factors against a finding of “depravity.”

As previously noted, the facts in this record do not establish “cruelty,” as that term is defined in Williams to require the infliction of pain and suffering. Certainly they do not meet the test of State v. Dixon. Rather, in this case, where there was no “torture” shown (and thus the sole basis for an instruction under subsection (i)(5) was the defendant’s alleged “depravity of mind”), and where the victims did not suffer pain beyond that experienced in any death by gunfire, the more applicable terms in (i)(5) would have been “heinous” and “atrocious,” rather than “cruel.” By truncating the instruction as he did, the trial judge may have confused the jury. Certainly, this flawed instruction, coupled with Dr. Smith’s testimony, may well have directed the jurors’ attention away from the state of the defendant’s mind at the time of the murders, which was ostensibly the relevant aspect of the charge, and directed it toward the physical effect of murder on the victims, which, strictly speaking, was not relevant.

But even if this confusion of terms in the instruction could be overlooked, as the majority proposes, there remains a serious constitutional question about reliance on a defendant’s “depravity of mind” as a circumstance supporting imposition of the déath penalty. As noted previously, we have defined depravity in only the vaguest of terms, as conduct evincing “moral corruption” or constituting a “wicked or perverse act.” Williams, 690 S.W.2d at 529 . We have developed no standards for determining the existence of a depraved, morally corrupt, wicked or perverse act, other than to say that it is necessarily proven whenever the state proves torture of the victim, and that it “may, in some circumstances, be shown although torture, as here-inabove defined, did not occur.” Id. (empha *488 sis added). Based on Tennessee case law, that is all we know about what is legally required to prove “depravity,” except for the ruling in Williams that depraved acts occurring after death “must be shown to have occurred so close to the time of the victim’s death, and must have been of such a nature, that the inference can be fairly drawn that the depraved state of mind of the murderer existed at the time the fatal blows were inflicted upon the victim.” Id. at 530 . Of course, this latter restriction governs the timing of a “wicked act” alleged to reflect depravity, but it adds nothing that would help a fact-finder determine whether the murder in question was actually the product of a depraved mind, that is, whether it was “morally corrupt” or “wicked.”

Because the “depravity of mind” prong of aggravated circumstance (i)(5) is so vague, the instruction given in this case allowed the jury to exercise the sort of unguided discretion condemned by the United States Supreme Court in Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980), and Maynard v. Cartwright, 486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988). In Godfrey , the defendant murdered his wife and mother-in-law with single shotgun blasts. The prosecutor did not allege that torture occurred, yet sought the death penalty under Georgia’s statute permitting it when a murder is “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or. an aggravated battery to the victim.” The jury sentenced the defendant to death based on a truncated version of the statute, stating that the murders were “outrageously or wantonly vile, horrible and inhuman.” In its review, the United States Supreme Court found that the jury’s version of the statute was an unconstitutional basis for imposing the death penalty, because there is “nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence.” Id. at 428 , 100 S.Ct. at 1765 . Holding that Godfrey’s “crimes cannot be said to have reflected a consciousness materially more ‘depraved’ than that of any person guilty of murder,” the Court reversed the death sentence. Id. at 443 , 100 S.Ct. at 1772 . The Court concluded that “[tjhere is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not.” Id.

In Maynard v. Cartwright, another shotgun murder not involving torture or aggravated battery of the victim, the Court found Godfrey -to be “very relevant” as it reviewed Oklahoma’s statute allowing a death sentence to be imposed for murders that are “especially heinous, atrocious, or cruel.” The Court observed that Furman v. Georgia, 408 U.S. 238, 313 , 92 S.Ct. 2726, 2764 , 33 L.Ed.2d 346 (1972), requires “the channeling and limiting of the sentencer’s discretion in imposing the death penalty.” See Maynard, 486 U.S. at 362 , 108 S.Ct. at 1858 . It further noted that Godfrey “rejected the submission that a particular set of facts surrounding a murder, however shocking they might be, were enough in themselves, and without some narrowing principle to apply to those facts, to warrant the imposition of the death penalty.” Id. at 363, 108 S.Ct. at 1859 . The Court in Maynard ultimately held that the Oklahoma statute “gave no more guidance than the ... language that the jury returned in its verdict in Godfrey,” and that appellate review of the facts “did not cure the constitutional infirmity of the aggravating circumstance.” Id. 486 U.S. at 364 , 108 S.Ct. at 1859 .

It is true that since the release of Maynard , we have reviewed and upheld the constitutionality of circumstance (i)(5) against challenges for vagueness, distinguishing the Tennessee statute on the theory that it, unlike the Georgia and Oklahoma statutes, qualified the terms “heinous, atrocious or cruel” by requiring a finding of “torture or depravity of mind” to support the existence of the circumstance. See, e.g., Williams, 690 S.W.2d at 527 ; State v. Teel, 793 S.W.2d 236, 251 (Tenn.), cert. denied, 498 U.S. 1007 , 111 S.Ct. 571 , 112 L.Ed.2d 577 (1990); State v. Henley, 774 S.W.2d 908, 918 (Tenn.1989), cert denied, 497 U.S. 1031 , 110 S.Ct. 3291 , 111 L.Ed.2d 800 (1990); and State v. Thompson, 768 S.W.2d 239, 252 (Tenn.1989), cert. denied, 497 U.S. 1031 , 110 S.Ct. 3288 , 111 L.Ed.2d 796 (1990). This distinction may be sound, to the extent that “torture” can be defined in terms that will guide the jury in making a subsection (i)(5) determination. It is not val *489 id in a ease, like the one now before us, in which the jury is asked to determine only whether the record reflects “depravity of mind” and in which that term is defined for the jury in the amorphous terms of Williams, ie., “wickedness,” “perversity,” and “moral corruption.” Such undefined (and apparently indefinable) terms, without explication of what factor or factors must be present in order to establish depravity, renders the Tennessee capital punishment scheme unconstitutionally vague, to the extent that a sentence is based on circumstance (i)(5).

Recent rulings by the United States Supreme Court indicate that when a capital case is submitted to a jury on alternative theories, the unconstitutionality of any of the theories requires that the conviction or verdict be set aside where the reviewing court is uncertain as to which theory was relied on by the jury in reaching its verdict. See e.g., Shell v. Mississippi 498 U.S. 1, 3 , 111 S.Ct. 313, 314 , 112 L.Ed.2d 1 (1990) (Marshall, J., concurring); Mills v. Maryland, 486 U.S. 367, 376-7 , 108 S.Ct. 1860, 1866 , 100 L.Ed.2d 384 (1988); Leary v. United States, 395 U.S. 6, 30-32 , 89 S.Ct. 1532, 1545-46 , 23 L.Ed.2d 57 (1969); Stromberg v. California, 283 U.S. 359 , 51 S.Ct. 532 , 75 L.Ed. 1117 (1931).

Except for the discussion in Williams , this Court has never expressly set forth any standards for what must be shown to establish depravity of mind. Other than abuse of the body close to the time of death, State v. O’Guinn, 709 S.W.2d 561, 567-568 (Tenn.), cert. denied, 479 U.S. 871 , 107 S.Ct. 244 , 93 L.Ed.2d 169 (1986); State v. Williams, 690 S.W.2d at 529-530 , the Court, in determining if depravity of mind has been proved, has referred to “vicious and massive stab wounds” to the body, State v. Miller, 771 S.W.2d 401, 405 (Tenn.1989), cert denied, 497 U.S. 1031 , 110 S.Ct. 3292 , 111 L.Ed.2d 801 (1990); repeated striking of the victim, State v. Melson, 638 S.W.2d 342, 367 (Tenn.1982), cert. denied, 459 U.S. 1137 , 103 S.Ct. 770 , 74 L.Ed.2d 983 (1983); the senselessness of the killing, State v. Thompson,' 768 S.W.2d 239, 252 (Tenn.1989), cert. denied, 497 U.S. 1031 , 110 S.Ct. 3288 , 111 L.Ed.2d 796 (1990); and the gratuitous infliction of violence and needless mutilation of a fatally wounded and helpless victim, State v. Zagorski 701 S.W.2d 808, 814 (Tenn.1985), cert. denied 478 U.S. 1010 , 106 S.Ct. 3309 , 92 L.Ed.2d 722 (1986), as evidence of depravity. The Oklahoma court’s similar description of the killing, however, was found not to cure the constitutional infirmity of the aggravating circumstance in Maynard v. Cartwright, 486 U.S. 356 , 108 S.Ct. 1853 .

The majority in this case refers to the botched (i)(5) jury instruction as harmless error. However, it is apparent from the United States Supreme Court decisions that the sentencer in a capital trial (the jury in Tennessee) must be adequately informed of the constitutionally limiting construction of a vague term used as a capital aggravator. See Shell v. Mississippi 498 U.S. 1 , 111 S.Ct. 313 ; Maynard v. Cartwright 486 U.S. 356 , 108 S.Ct. 1853 ; Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 . Where a sentencer in a “weighing” state, one that requires the weighing of aggravating and mitigating factors, weighs an invalid circumstance, the Eighth Amendment is violated. Espinosa v. Florida, - U.S. -, -, 112 S.Ct. 2926, 2928 , 120 L.Ed.2d 854 (1992); Clemons v. Mississippi 494 U.S. 738, 752 , 110 S.Ct. 1441, 1450 , 108 L.Ed.2d 725 (1990). An aggravating circumstance is invalid if its description is so vague as to leave the sentencer without sufficient guidance for determining the presence or absence of the factor. Stringer v. Black, — U.S. -, -, 112 S.Ct. 1130, 1140 , 117 L.Ed.2d 367 (1992).

It is possible for an appellate court in a weighing state like Tennessee to affirm the death penalty, but it can do so only by constitutional harmless error analysis or a reweighing of aggravating and mitigating circumstances at the trial or appellate level. Stringer v. Black, — U.S. at -, 112 S.Ct. at 1137; Clemons v. Mississippi 494 U.S. at 750-3 , 110 S.Ct. at 1449-51 . 3 The appellate *490 court must make a thorough analysis of the role the invalid aggravating circumstance played in the sentencing process and may not automatically assume that the invalid factor has not infected the weighing process. Stringer v. Black, — U.S. at -, 112 S.Ct. at 1136-7. At the present time, the United States Supreme Court has indicated that it will require that the process by which the appellate court in a weighing state examines a death sentence skewed by an invalid mitigator must be clearly stated and explained. See Richmond v. Lewis, — U.S. -, 113 S.Ct. 528 , 121 L.Ed.2d 411 (1992) (reweighing); Sochor v. Florida, — U.S. -, -, 112 S.Ct. 2114, 2123 , 119 L.Ed.2d 326 (1992) (appellate court must clearly indicate that harmless error analysis is being made); see also Clemons v. Mississippi, 494 U.S. at 753 , 110 S.Ct. at 1451 (under certain circumstances “it would require a detailed explanation based on the record” for the Court to agree that the error in giving the “especially heinous” instruction was harmless). To the extent that Williams appears to have defined “torture” in specific terms that can be explained to a jury, circumstance (i)(5) may be upheld as constitutional. But where, as here, “depravity of mind” is the only basis submitted to the jury to support a finding under subsection (i)(5), the constitutional validity of the resulting sentence is highly doubtful, in the absence of a consistent standard that can be applied to determine whether the murder resulted from “depravity.” None has been developed by the Court to date — certainly none was supplied to the jury in this case — and given the fact that the “heinous, atrocious or cruel” circumstance was submitted on the “depravity of mind” prong only, the sentence in this case should not be permitted to stand.

As pointed out above, the Tennessee General Assembly has implicitly recognized the uncertainty inherent in the “depravity” language formerly found in subsection (i)(5), and has substituted a new, objective standard, as follows:

The murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.

T.C.A. § 39 — 13—204(i)(5) (Supp.1990) (emphasis added). This change constitutes sound policy, and I believe that it should be recognized as a constitutional mandate by this Court and applied in this ease.

The result would be a remand for resen-tencing under a proper subsection (i)(5) instruction, at least as to those counts in which the proof is arguably sufficient to support the death penalty. Otherwise, the proper procedure would be for the Court to set aside the sentences of death set in the trial court and impose life sentences against the defendant.

For these reasons, I respectfully dissent from the majority opinion.

. This uniform result in Tennessee should not be taken as a signal that such statutory provisions are uniformly accepted by courts or commentators. For a full analysis, see Rosen, The "Especially Heinous” Aggravating Circumstance in Capital Cases — the Standardless Standard, 64 N.C.L.Rev. 941 (1986). But see Arave v. Creech, - U.S. -, 113 S.Ct. 1534 , 123 L.Ed.2d 188 (1993).

. The specific issue in Williams was whether mutilation of the victim’s body committed after death occurred could be considered "heinous, atrocious or cruel" and thus qualify Williams for the death penalty.

. In Clemons , the Supreme Court appeared to approve two harmless error analyses. The first would ask whether it was beyond a reasonable doubt that the sentence would have been the same even if there had been no “especially heinous” instruction at all and only the valid aggravating circumstance was to be balanced against the mitigating circumstances. The second in *490 volves an inquiry as to whether beyond a reasonable doubt the result would have been the same had the especially heinous aggravating circumstance been properly defined in the jury instructions, 494 U.S. at 753-4 , 110 S.Ct. at 1451 . In Sochor v. Florida,-U.S.-,-, 112 S.Ct. 2114, 2123 , 119 L.Ed.2d 326 (1992), the Supreme Court reiterated that the appellate court must conclude beyond a reasonable doubt that the constitutional error did not contribute to the sentence obtained.