Cartwright v. Maynard, 86-1231

• Decision Date: 22 June 1987
• Docket Number: No. 86-1231,86-1231
• Parties: William Thomas CARTWRIGHT, Petitioner-Appellant, v. Gary D. MAYNARD, Warden, Oklahoma State Penitentiary at McAlester, Oklahoma, and Robert Henry, successor to Michael C. Turpen, Attorney General of Oklahoma, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1477

822 F.2d 1477

56 USLW 2066

William Thomas CARTWRIGHT, Petitioner-Appellant, v. Gary D. MAYNARD, Warden, Oklahoma State Penitentiary at McAlester, Oklahoma, and Robert Henry, successor to Michael C. Turpen, Attorney General of Oklahoma, Respondents-Appellees.

No. 86-1231.

United States Court of Appeals Tenth Circuit.

June 22, 1987.

Mandy Welch, of Payne and Welch, Hugo, Okl., for petitioner-appellant.

David W. Lee (Robert H. Henry, Atty. Gen., with him on briefs), Asst. Atty. Gen Before HOLLOWAY, Chief Judge, and BARRETT, MCKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA and BALDOCK, Circuit Judges.

Oklahoma City, Okl., for respondents-appellees.

ON REHEARING EN BANC

TACHA, Circuit Judge.

Petitioner William Thomas Cartwright appeals from the denial of habeas corpus relief by the United States District Court for the Eastern District of Oklahoma. Cartwright was convicted of the murder of Hugh Riddle and sentenced to death following a determination that the murder satisfied two statutory aggravating circumstances and that these aggravating circumstances outweighed the mitigating evidence. Cartwright alleges that the state of Oklahoma applied the "especially heinous, atrocious, or cruel" aggravating circumstance in a unconstitutionally vague and overbroad manner in this case. We agree.

Cartwright was tried and convicted of first degree murder for the shooting of Hugh Riddle. ¹ The state argued that three of the aggravating circumstances enumerated under Oklahoma law justified the imposition of the death penalty: first, the defendant knowingly created a great risk of death to more than one person; second, the murder was "especially heinous, atrocious, or cruel;" and third, the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. See Okla.Stat.Ann. tit. 21, Secs. 701.12(2), (4), (7) (West 1983). The jury concluded that the first two aggravating circumstances were established, but that the evidence did not support the third aggravating circumstance. The jury then weighed the aggravating circumstances and the mitigating circumstances and sentenced Cartwright to death for the murder of Hugh Riddle.

The Oklahoma Court of Criminal Appeals affirmed the convictions and the sentences on appeal. Cartwright v. State, 695 P.2d 548 (Okla.Crim.App.), cert. denied, 473 U.S. 911, 105 S.Ct. 3538, 87 L.Ed.2d 661 (1985). The state courts then denied Cartwright's application for post-conviction relief. Cartwright v. State, 708 P.2d 592 (Okla.Crim.App.1985), cert. denied, --- U.S. ----, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986). The United States District Court for the Eastern District of Oklahoma denied Cartwright's petition for a writ of habeas corpus. A panel of this court affirmed the denial of the petition. Cartwright v. Maynard, 802 F.2d 1203 (10th Cir.1986). We granted rehearing en banc on the question of the application of the "especially heinous, atrocious, or cruel" aggravating circumstance. ²

There are three questions presented in this appeal. First, we must decide whether reliance upon an unconstitutionally vague or overbroad statutory aggravating circumstance requires the reversal of a death sentence where the sentencer was required to balance the aggravating circumstances with the mitigating circumstances. Second, if such reliance requires that the death sentence be vacated, we must then decide whether the Oklahoma courts in this case applied a constitutionally adequate narrowing construction of "especially heinous, atrocious, or cruel" to the facts of this case. Finally, if the state courts failed to apply a proper narrowing construction, we must decide whether this court can apply a narrowing construction of "especially heinous, atrocious, or cruel" to the facts of this case.

For the reasons stated in this opinion, we conclude that: (1) reliance upon a constitutionally invalid aggravating circumstance requires that the death sentence be vacated; (2) the Oklahoma courts failed to apply a constitutionally adequate narrowing construction in this case; and (3) this court cannot decide what narrowing construction is to be applied by the state of Oklahoma. We therefore remand to the district court with directions to enter judgment in accord with this opinion.

I.

Cartwright was sentenced to death after two statutory aggravating circumstances were established. If Cartwright's death sentence can rest on the unchallenged aggravating circumstance of creating a great risk of death to more than one person, we need not reach the constitutional challenge to the "especially heinous, atrocious, or cruel" aggravating circumstance. See, e.g., Superintendent, Massachusetts Correctional Inst. v. Hill, 472 U.S. 445, 450, 105 S.Ct. 2768, ---, 86 L.Ed.2d 356 (1985) (a federal court will address a constitutional question only when it is necessary to the resolution of the case before the court). Thus, we must first decide whether the unchallenged aggravating circumstance supports the death sentence even if the challenged aggravating circumstance were found to be invalid.

The validity of a death sentence based in part on consideration of an invalid aggravating circumstance "depends on the function of the jury's finding of an aggravating circumstance under [a state's] capital sentencing statute, and on the reasons that the aggravating circumstance at issue ... was found to be invalid." Zant v. Stephens, 462 U.S. 862, 864, 103 S.Ct. 2733, 2736, 77 L.Ed.2d 235 (1983); see also Barclay v. Florida, 463 U.S. 939, 951, 103 S.Ct. 3418, 3425, 77 L.Ed.2d 1134 (1983); accord Andrews v. Shulsen, 802 F.2d 1256, 1263 (10th Cir.1986). The Supreme Court has addressed this question under Georgia law in Zant and under Florida law in Barclay and Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1984). We are presented with the same question under the law of Oklahoma.

Under the Georgia statute reviewed in Zant, first degree murder is not necessarily a capital offense. The death penalty can be imposed for first degree murder only if at least one statutory aggravating circumstance is established. A statutory aggravating circumstance is used simply to cross the threshold dividing first degree murders that are not eligible for the death penalty and first degree murders that are eligible for the death penalty. It does not matter how many statutory aggravating circumstances are present--only one is needed to cross the threshold. Therefore, as long as one valid aggravating circumstance remains, the murder is a capital offense even if other aggravating circumstances are subsequently found invalid.

Moreover, an aggravating circumstance under the Georgia statute is used only to determine which first degree murders are capital offenses. An aggravating circumstance does not play the additional role of guiding the sentencer in the exercise of its statutory discretion in deciding whether to sentence a particular murderer to life imprisonment or to death. No particular aggravating circumstance is afforded special weight. There is no requirement that aggravating circumstances be balanced against mitigating circumstances. See Zant, 462 U.S. at 873-74, 103 S.Ct. at 2740-41.

The Zant Court held that two valid aggravating circumstances served the constitutionally required function of narrowing the class of persons eligible for the death penalty even though a third aggravating circumstance--that the defendant had "a substantial history of serious assaultive criminal convictions"--had been held unconstitutionally vague. Id. at 878-79, 103 S.Ct. at 2743-44. Once the class of persons eligible for the death penalty has been determined, "the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death." Id. at 878, 103 S.Ct. at 2743 (footnote omitted). The Court then held that the evidence of the defendant's prior criminal record, while not a valid statutory aggravating circumstance, could be considered by the sentencer in selecting the proper punishment. Thus, although the defendant's prior criminal record was improperly considered as a statutory aggravating circumstance, the Court allowed the jury to consider such evidence in deciding whether to impose the death penalty. Labeling the evidence of a prior criminal record as a statutory aggravating circumstance "arguably might have caused the jury to give somewhat greater weight to respondent's prior criminal record than it otherwise would have given," but that possibility did not rise to the level of constitutional error. Id. at 888-89, 103 S.Ct. at 2749.

The purpose of an aggravating circumstance in the Oklahoma statute is decidedly different from the purpose of an aggravating circumstance in the Georgia statute considered in Zant. An aggravating circumstance under the Oklahoma scheme does not establish a threshold that distinguishes capital murders from other first degree murders. In Oklahoma any first degree murder is punishable by life imprisonment or death. Okla.Stat.Ann. tit. 21, Sec. 701.9 (West 1983). Therefore, the Oklahoma statute is unlike the statutes in those states in which aggravating circumstances are employed to narrow the class of first degree murderers that are eligible for the death penalty. See Zant, 462 U.S. at 875, 103 S.Ct. at 2741 (Georgia); Andrews, 802 F.2d at 1263 (Utah); Welcome v. Blackburn, 793 F.2d 672, 677 (5th Cir.1986) (Louisiana). Cf. Johnson v. Thigpen, 806 F.2d 1243, 1248 (5th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987) (Mississippi).

Oklahoma uses an aggravating circumstance to guide the discretion of the sentencer in determining whether the death penalty should be imposed for a particular murder. Okla.Stat.Ann. tit. 21, Sec. 701.10 (West 1983). The sentencer must balance all of the statutory aggravating...