Opposition Brief — Clarke v. Moore

| Supreme Court, U.S.

FI". ED

, NO. 91-1491 APR 10 1992

ClFive Or tHE Clink |

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

HAROLD W. CLARKE, DIRECTOR,

NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES,

Petitioner,

VS.

CAREY DEAN MOORE,

Respondent

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Submitted by:

Alan E. Peterson, #13295*

Shawn D. Renner, #17784

1900 FirsTier Bank Bldg.

Lincoln, NE 68508

(402) 474-6900

and

William J. Morris

1560 South 70th Street

Lincoln, NE 68505

(402) 488-0985

Attorneys for Respondent

*Counsel of Record

TABLE OF CONTENTS

TABLE OF CONTENTS

ee ere rer er ae

TABLE OF AUTHORITIES cee yas ii

STATEMENT OF THE CASE | foes

REASONS FOR DENYING WRIT i

INTRODUCTION =e

Il. |THE DECISION OF THE COURT OF APPEALS

DOES NOT CONFLICT WITH PROFFITT \

FLORIDA, WALTON V. ARIZONA. OR

LEWIS V. JEFFERS 4

Il. THE FACT THAT RESPONDENT'S DEATH

SENTENCE WAS IMPOSED BY A PANEL OF

JUDGES RATHER THAN A JURY IS NOT

RELEVANT TO THE ISSUE INVOLVED IN

THIS CASE 6

IV. THE COURT OF APPEALS DID NOT APPLY

ANY IMPROPER STANDARD IN DETERMINING

VAGUENESS .

V THE COURT OF APPEALS’ DISCUSSION OF

STATE V. PALMER WAS INVITED BY THE

ARGUMENT MADE BY PETITIONER 10

CONCLUSION 1]

TABLE OF AUTHORITIES

Clemons v. Mississippi

ee Be ee Ca cha aah Snes cia Rn bos ne a een eae 11

Furman v. Georgia

2 ER. BB RS) > | enn men eee hare a eT De oe han Mites bie 8,9

Godfrey v. Georgia

446 U.S. 420 (1980) ....... a ek ee ae ek eee 2,5,6,7,8

Gregg v. Georgia

428 U.S. 153 (1976) ear A ra 2,7,8,9

larper v. Grammer

895 F.2d 473 (8th Cir. 1990) ve , 3

Holtan v. Black

838 F.2d 984 (8th Cir. 1988 3

U.S. __, 110 S.Ct. 3092 (1990 ) teense 408,50

Maynard v. Cartwright

b

+.

486 U.S. 367 (1988 . 6,7

Mills v. Marvland

486 U.S. 367 (1988 ae ie a.

Moore v. Clarke

904 F.2d 1226 (8th Cir. 1990) ee i donee ae ae

Proffitt v. Florida

428 U.S. 242 (1976) ; tn de A Sid han, AUIS Leta SEY ly ORK, A ae 45

Shell v. Mississippi

498 US. _, 111 S.C. S19 CORO)... wo oc cc cee cece 7,10

State v. Dixon

ee ee a COE | oo nak cee ee ee ee nee 4

State v. Holtan

ae Tee, SOE, BG Is. ee Te CATE) ws 6 ces se woe Cee eee 3

ats

State v. Moore

S50 Neb, 457. 316 N.W 2G So (ISGE) 2. we cc ees eer 3,4,7

State v. Palmer

224 Neb. 282, 399 N.W.2d 706 (1986) axese BAG 41

State v. Rust

197 Neb. 528. 250 N.W.2d 867 (1977) 34

197 Neb. 549, 250 N.W.2d 881 (197% 9

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STATEMENT OF THE CASE

Respondent accepts Petitioner's Statement of the Case, subject to the following

amplification.

The statement on page 4 of the Petition that "The [sentencing panel] found no

statutory mitigating circumstances to exist and no additional evidence offered in

mitigation which would, on balance, render a sentence of death inappropriate in either

case” is misleading to the extent that it implies the existence of no mitigating

circumstances. While the sentencing panel did not find the existence of any statutory

mitigating factors, it specifically held: “The sentencing panel finds that the family

background and upbringing of the defendant are entitled to consideration as a mitigating

factor in the determination of punishment to be imposed in this case, but the panel

further concludes that this mitigating factor is not of sufficient weight to outweigh the

aggravating circumstances which have been found to exist beyond a reasonable doubt in

this case.” Petition, at 93a. As indicated by the sentencing panel’s discussion, Nebraska

isa “weighing state.” Neb. Rev Stat. §29-2522 (Reissue 1989) See Stringer v. Black, 60

U.S.L.W. 4214 (March 10, 1992)

REASONS FOR DENYING THE WRIT

I. INTRODUCTION

The issue is whether the lower courts correctly held unconstitutional Nebraska's

facially vague aggravating circumstance, “the murder was especially heinous, atrocious,

cruel. or manifested exceptional depravity by ordinary standards of morality and

intelligence,” under the Eighth Amendment. Without contest, the language is facially

vague. The United States Court of Appeals found further that the Nebraska Supreme

Ms

Court had failed to narrow it by construction to channel the sentencers’ discretion "so as

to minimize the risk of wholly arbitrary and capricious action” as required under Gregg v.

Georgia, 428 U.S. 153 (1976); Godfrey v. Georgia, 446 U.S. 420 (1980); and Maynard v.

Cartwright, 486 U.S. 356 (1988).

Petitioner seems now to recast this familiar issue into two new claims or

propositions not ruled upon below: (1) the facially vague aggravating factor may be

excused even without a meaningful “channelling’ construction in a judicial-sentencing

state such as Nebraska; and (2) aggravating factors and their construction by state courts

should be judged constitutionally acceptable despite their containing some degree of

subjectivity. Those issues are fictional ‘straw men, and both derive from a misleading

characterization of the grounds actually relied on below. The first would distort two

decades of death penalty jurisprudence. The second may well be true in some cases, but

is utterly beside the point in this case. The two arguments are efforts to pull the focus

away from the routine, settled analysis upon which the case was correctly decided by

both the courts below.

From this case’s inception, the fundamental issue has been the Nebraska Supreme

Court’s construction of the admittedly facially vague aggravating circumstance found at

Neb. Rev. Stat. § 29-2523(1)(d) (Reissue 1989), which provides “the murder was especially

heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of

morality and intelligence.”

In its several efforts to breathe content into the generalized pejoratives announced

in the statute, the Nebraska Supreme Court has interpreted § 29-2523(1)(d) to state two

disjunctive standards which, alone or together, can operate to aggravate a first degree

SDR\6064.1 “ats

murder conviction to death eligibility. In the direct appeal from Respondent’s conviction

and sentence, the Nebraska Supreme Court said:

Aggravating circumstance (1)(d) of § 29-2523 literally, and as

interpreted by this court, describes in the disjunctive two

separate circumstances which may operate in conjunction

with or independent of one another. The first circumstance

is that the murder was especially heinous, atrocious, or cruel.

We have said that this circumstance is directed to the

“pitiless crime which is unnecessarily tortuous to the victim”

and to cases where torture, sadism, or the imposition of

extreme suffering exists. State v. Stewart, 197 Neb. 497, 250

N.W.2d 849 (1977); State v. Rust, 197 Neb. 528, 250 N.W.2d

867 (1977). In this case the sentencing panel found that

aggravating circumstance did not exist. We agree. The

second circumstance pertains to the state of mind of the actor.

In State v. Stewart, supra, we said the second instance

indicates a situation "where depravity is apparent to such an

extent as to obviously offend all standards of morality and

intelligence” (syllabus of the court), and in State v. Holtan,

197 Neb. 544, 250 N.W.2d 876 (1977), it indicates a state of

mind "totally and senselessly bereft of any regard for human

life’ (syllabus of the court). The sentencing panel found the

second circumstance did apply.

State v. Moore. 210 Neb. 457, 470, 316 N.W.2d 33, 41 (1982). See Petition at 5la-52a.

The sole. narrow issue involved in this case is whether the gloss placed on the

“manifested exceptional depravity by ordinary standards of morality and intelligence’

aggravating circumstance by the Nebraska Supreme Court as of the time Respondent

was sentenced provided sufficient definitional content to allow that circumstance to

aggravate his sentence, consistent with the Eighth Amendment. The United States

District Court for the District of Nebraska has consistently upheld the constitutionality

of the first “prong” of this aggravating circumstance, as limited by construction, and has

also consistently held unconstitutionally vague the second "prong." Moore v. Clarke, 904

F.2d 1226, 1229, n.5 (8th Cir. 1990). See also, Harper v. Grammer, 895 F.2d 473, 478

(8th Cir. 1990) afffing. 654 F.Supp. 515 (D. Neb. 1987); Holtan v. Black, 838 F.2d 984

SDR\6064.1 -3-

Sth Cir. 1988). The decision of the Court of Appeals in this case correctly affirms the

c

; _

iongstanding analysis Ol

the District Court. The writ should be denied

Il. THE DECISION OF THE COURT OF AP-

PEALS DOES NOT CONFLICT WITH

PROFFITT V. FLORIDA, WALTON _V.

ARIZONA, OR LEWIS V. JEFFERS

Res ; e Court of Appeals’ decis licts with Proffitt \

Flor 428 US. 24 I76) 1S | wr

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1 r ed in State v_ Dixon, 283 So.t

iM See Profhi WAR LS d The N raska Supre e ( r idopted the Dixo

construct ipproved Pr fT; St t rs p of § 29-2523 qd) in its init

tet r

review of Nebraska's post-Furman death penalty statutes. See State v. Stewart, 19

Neb. 497, 522-23, 250 N.W.2d 849, 862 (1977); State v. Rust, 197 Neb. 528, 538-39, 250

N.W.2d 867, 874 (1977). But both the original sentencing panel and the Nebraska

Supreme Court unequivocally found that “prong” not applicable in Respondent’s case

State v. Moore, 210 Neb. at 470-71, 316 N.W.2d at 41; Petition at 5la-52a. The

Petitioner has conveniently omitted that holding from the lengthy quotation contained

on page 7 of the Petition

SDR\6064.1 -4-

Thus, the limiting construction approved by this Court in Proffitt was determined

by both the sentencing panel and the Nebraska Supreme Court not to apply in

Respondent's case. For that reason, Proffitt is inapposite, and nothing in the Court of

Appeals’ opinion contravenes Proffitt.

Similarly, the decision of the Court of Appeals is wholly consistent with both

Walton and Jeffers

The original pane! opinion was filed on May 25, 1990. Petition at la. While

petitioner's petition for rehearing and suggestion for rehearing en banc was pending, this

Court decided Walton v. Arizona, _ U.S. _, 110 S.Ct. 3047 (1990) and Lewis v. Jeffers,

U.S... 110 S.Ct. 3092 (1996). Petition at 10la. The parties were directed by the

Court to brief the impact of Walton and Jeffers, on the panel's decision. Petition at 101a.

The opinion denying rehearing by the panel specifically notes, "As we are satisfied that

our earlier opinion is consistent with Walton and Jeffers, we deny the Warden's petition

for rehearing. Petition at 101la.

The opinion denying rehearing by the panel continues:

We first observe that Jeffers reasserts the requirement

that a state channel the sentencer’s discretion by ‘clear and

objective standards” that provide “specific and detailed

guidance,” and that "make rationally reviewable the process

for imposing a sentence of death.” Jeffers, 110 S.Ct. at 3099

(quoting Godfrey v. Georgia, 446 U.S. 420, 428 (1980)).

Walton defines our procedure in such cases as follows:

When a federal court is asked to review

a state court’s application of an individual

statutory aggravating or mitigating circum-

stance in a particular case, it must first deter-

mine whether the statutory language defining

the circumstance is itself too vague to provide

any guidance to the sentencer. If so, then the

federal court must attempt to determine

whether the state courts have further defined

SDR\6064.1 -5-

the vague terms and if they have done so,

whether those definitions are constitutionally

sufficient, i.e. whether they provide some

guidance to the sentencer. In this case, there is

no serious argument that Arizona’s "especially

heinous, cruel or depraved" aggravating factor

is not facially vague. But the Arizona Supreme

Court has sought to give substance to the

operative terms, and we find that its construc-

tion meets constitutional requirements.

110 S.Ct. at 3057 (emphasis in original).

Our original opinion followed precisely this formula,

examining first the question of whether the Nebraska

statute’s language was too vague to provide guidance to the

sentencer, and then determining whether the Nebraska

courts had narrowed the statutory language by construction.

Petition at 101a-102a. That analysis is correct, and counsels in favor of denying the writ.

lil. THE FACT THAT RESPONDENT'S DEATH

SENTENCE WAS IMPOSED BY A PANEL

OF JUDGES RATHER THAN A JURY IS

NOT RELEVANT TO THE ISSUE

INVOLVED IN THIS CASE

Petitioner takes the remarkable position that “the logic of Maynard and Godfrey

has no place in the context of sentencing by a trial judge.” Petition at 10. Nothing in

this Court’s capital sentencing jurisprudence so holds

Walton, in regard to this question, stands only for the proposition that judges

acting as capital sentencers ‘are presumed to know the law and apply it in making their

decisions.. 110 S.Ct. at 3057. “If the Arizona Supreme Court has narrowed the

definition of the ’especially heinous, crue] or dépraved’ aggravating circumstance, we

presume that Arizona trial judges are applying the narrower definition.” Id. (Emphasis

added.)

SDR\6054.1 -6-

Here, the Walton presumption is irrelevant because the sentencing panel, in fact,

expressly applied the construction of the aggravator previously adopted by the Nebraska

Supreme Court. See Petition at 78a-79a; compare Moore v. State, 210 Neb. at 470, 316

N.W.2d at 41, Petition at 51a-52a. Where the sentencing judges, in fact, apply the extant

appellate gloss, the Walton presumption adds nothing to the analysis.

Rather, the question raised by this case and decided by the Court of Appeals is

whether the construction placed on the second “prong” of the aggravating circumstance

by the Nebraska Supreme Court in fact limited or narrowed the unconstitutionally vague

language set out in the statute. The Court of Appeals held that it did not: “In conclusion,

we believe that the body of law developed by the Nebraska Supreme Court construing the

challenged statute provides insufficient guidance to a sentencing body called upon to

determine whether a particular murder 'manifested exceptional depravity.” 904 F.2d at

1233: Petition at 19a. After reviewing its earlier decision in light of Walton, the Court

of Appeals reaffirmed that conclusion. Petition at 103a, 106a.

Godfrey and Maynard stand for the basic proposition, first announced in Gregg v.

Georgia, 428 U.S. 153 (1976), that the use of a vague, imprecise aggravating cir-

cumstance fails to channel a sentencer’s discretion in a meaningful way and thus results

in arbitrary and capricious application of the death penalty, in violation of the Eighth

Amendment. See Stringer v. Black, 60 U.S.L.W. 4214, 4216 (March 9, 1992). Maynard

implies, and Shell v. Mississippi, 498 U.S. __, 111 S.Ct. 313, (1990) holds, that an

appellate construction intended to limit a facially vague aggravating circumstance must

in fact narrow and give content to the vague statute. Walton affirms all of these rules,

but presumes that sentencing judges are aware of a limiting construction previously

adopted by a state appellate court.

SDR\6064.1 ay &

When Furman vy. Georgia, 408 U.S. 238 (1972), found the death penalty was

unconstitutional as then administered, it was because "Juries (or judges, as the case may

be) have practically untrammeled discretion to let an accused live or insist that he die."

Id. at 248 (Douglas, J., concurring) (emphasis added). See similar references id. at 253,

255 (Douglas, J.); 391 (White, J.) 400 (Burger, CJ., dissenting). Throughout the several

opinions, it is clear that both jury and judicial discretion was deemed unconstitutionally

“untrammeled

Ne case decided by this or any other court holds that a constitutionaliy defective

aggravating circumstance which has not been narrowed by construction in a manner

consistent with the Constitution may survive Eighth Amendment analysis merely

because the capital sentencing is performed by a judge or judges. Yet, that appears to

be petitioner's claim. That claim should be rejected and the petition denied.

IV. THE COURT OF APPEALS DID NOT APPLY

ANY IMPROPER STANDARD IN DETER-

MINING VAGUENESS

Petitioner's complaint that the Court of Appeals improperly struck the aggravating

circumstance because of the ‘subjective’ nature of the construction adopted by the

Nebraska Supreme Court mischaracterizes the actual decision of the Court of Appeals.

It is true that both the District Court and the Court of Appeals held that a state

must channel the Sentencer’s discretion by ‘clear and objective standards’ that provide

‘specific and detailed guidance,’ and that 'make rationally reviewable the process for

imposing a sentence of death.” 904 F.2d at 1232, n. 7. In so doing, however, the Court

of Appeals was merely applying the law announced by this Court in Gregg v. Georgia,

428 U.S. 153, 198 (1976), and reaffirmed in Godfrey v. Georgia, 446 U.S. 420, 428 (1980);

and Lewis v. Jeffers, US. , 110 S.Ct. 3092, 3099 (1990). See also Mills v.

-8-

Maryland. 486 U.S. 367, 374 (1988) (Sentencer’s discretion "must be guided appropriately

by objective standards ).

The Nebraska Supreme Court has likewise recognized its obligation to appiy the

standard established in Gregg. See State v. Simants, 197 Neb. 549, 563, 250 N.W.2d

881, 890 |

peat

So

-~]

]

State v. Palmer. 224 Neb. 282, 320. 399 N.W.2d 706, 732 (1986)

(adopting new definition for depravity “prong.” and noting that “both the phrase

‘especially heinous, atrocious, cruel’ and the phrase ‘manifested exceptional depravity by

ordinary standards of morality and intelligence’ provide objective standards in imposing

the death penalty

The Court of Appeals can hardly be faulted for following a legal standard

consistently adhered to by this Court. Moreover, the Court of Appeals simply did not

hold "that an appropriately defined aggravating circumstance cannot be based upon the

sentencing entity’s determination of subjective factors such as the killer's state of mind,”

as the petition misleadingly suggests. Petition at 13

As noted by the Court of Appeals, "the sole issue raised by the State in this appeal

is whether the phrase ’manifested exceptional depravity by ordinary standards of

morality and intelligence,’ contained in section 29-2523(1 Xd), is unconstitutionally vague

as written and construed by the Supreme Court of Nebraska.” 904 F.2d at 1228.

Contrary to Petitioner's claim, the Court of Appeals understood its ‘task’ to be:

to determine whether the Supreme Court of Nebraska has

construed the “exceptional depravity” language in a manner

which directs and limits the discretion of the sentencing body

"so as to minimize the risk of wholly arbitrary and capricious

action,” [Gregg] at 189, 96 S.Ct. at 2932, and provides a

"meaningful basis for distinguishing the few cases in which

[the death penalty] is imposed from the many cases in which

it is not.” id. at 188, 96 S.Ct. at 2932 (quoting Furman, 408

U.S. at 313, 92 S.Ct. at 2764 (White, J., concurring)).

SDR\6064.1 -9-

904 F.2d at 1229. Indeed, the Court of Appeals expressly disclaimed any intent to decide

the claim Petitioner accuses it of deciding wrongly. See 904 F.2d at 1232, n. 7 ("We

believe that this is an issue which we need not explore”). In considering the Petitioner's

rehearing request in light of Walton and Jeffers, the Court of Appeals adhered to its

earlier analysis and decision. Petition at 104a.

The constitutional defect inherent in the construction of this aggravator at the

time Respondent was sentenced is not that it focused on the defendant’s state of mind;

rather, the defect is that the aggravator was not focused at all. The “construction” was

every bit as vague and imprecise as the statutory language itself. See Shell v. Missis-

sippi, 498 U.S. at__, 111 S.Ct. at 313. The issue resolved by the Court of Appeals, while

important to the parties, is one this Court has reviewed a half-dozen times over the last

16 years. The Court need not revisit it

i THE COURT OF APPEALS’ DISCUSSION

OF STATE V. PALMER WAS INVITED BY

THE ARGUMENT MADE BY PETITIONER

The final complaint Petitioner advances against the Circuit Court's decision relates

to the Court’s consideration of the construction of the ‘exceptional depravity’ aggravating

circumstance adopted in State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).

Such consideration was invited by the Petitioner. The Petitioner's brief in the

Circuit Court argued that the Palmer construction was constitutionally sufficient and

controlled reselution of this case, despite the fact that the Palmer construction was not

adopted until more than six years after Respondent’s sentence was imposed. See 904

F.2d at 1231. This “troubling” argument led the Circuit Court to consider the Palmer

decision. Compare, Stringer v. Black, 60 U.S.L.W. 4214, 4218 (1992) ("It is a fiction for

the State to contend that in 1984 its courts relied on a 1988 decision”). That con-

SDR\6064 1 -10-

sideration merely reinforced the Court’s decision that the construction of the aggravator

in existence at the time Respondent was sentenced was insufficiently precise. Id.

In its brief on rehearing, the State revamped its approach to Palmer. Instead of

arguing merely that Palmer cures all vagueness problems, the Petitioner took the

position that Palmer’s oblique reference to Respondent’s case amounted to a reweighing

under Clemons v. Mississippi, 494 U.S. 738 (1990). The Circuit Court implicitly rejected

this cynical claim, and again reaffirmed its previous conclusion that Palmer's

abandonment of the construction under which the "exceptional depravity’ aggravator was

founa to apply to Respondent’s case buttressed the conclusion that such original

construction was unconstitutionally vague. See Petition at 104a. The Circuit Court did,

however, note that “any remand will require consideration of Clemons Petition at

105a

The Circuit Court’s response to Petitioner’s Palmer-based argument is correct and,

given Petitioner's position before the Circuit Court, unavoidable. That Petitioner is

dissatisfied with the resolution of an issue he injected into the case provides no basis for

granting a writ of certiorari

CONCLUSION

The petitioner has offered no good reason for this Court to review the decision of

the Court of Appeals. The Petition for Writ of Certiorari should be denied.

ans

SDR\6064.1

-12-

CAREY DEAN MOORE, Respondent

By:

Alan E. Peterson, #13295

Shawn D. Renner, #17784

1900 FirsTier Bank Bldg

Lincoln, NE 68508

(402) 474-6900

and

William J. Morris

1560 South 70th Street

Lincoln, NE 68505

(402) ees oP.

_ We, 7 a.” Ae

Alan E. Peterson

Counsel of Record