# Opposition Brief — Clarke v. Moore

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 930

## Text

| 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
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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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i t

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
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-~]

]

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0358%3A2. Public record. Not legal advice.