Loving v. Hart
| Decision Date | 26 February 1998 |
| Docket Number | No. 96-8022,96-8022 |
| Parties | Dwight J. LOVING, Private U.S. Army, Appellant v. William L. HART, Colonel, Commandant, United States Disciplinary Barracks; and The United States, Appellees |
| Court | United States Court of Appeals, Armed Forces Court of Appeals |
Argued December 17 1996.
Military Judge Stephen V. Saynisch
For Appellant John H. Blume (argued); Teresa L. Norris.
For Appellee Major Lyle D. Jentzer (argued); Colonel John Smith and Lieutenant Colonel Eva M. Novak.
A general court-martial convicted appellant, contrary to his pleas, of premeditated murder, felony murder, attempted murder, and robbery (5 specifications), in violation of Articles 118, 80 and 122, Uniform Code of Military Justice, 10 USC §§ 918, 880, and 922, respectively. The court-martial sentenced appellant to a dishonorable discharge, total forfeitures, and to be put to death. On direct appeal appellant raised 70 issues. After specifically addressing each issue, our Court affirmed the decision of the Court of Military Review,[1] which had affirmed the findings and sentence. 41 MJ 213, 229 (1994), modified on reconsideration, 42 MJ 109 (1995). The Supreme Court affirmed our decision. 116 S.Ct. 1737 (1996).
After the Supreme Court’s decision, appellant filed a petition for extraordinary relief in the nature of a writ of mandamus with the Court of Criminal Appeals, electing to raise only one issue: that he was entitled to extraordinary relief because his death sentence was based in part on a conviction of felony murder that was unsupported by a unanimous finding of intent to kill or reckless indifference to human life. The Court of Criminal Appeals summarily denied relief in an unpublished order dated September 9, 1996. Appellant then filed a writ-appeal petition with this Court, which we granted on November 5, 1996, and set the petition for oral argument. For the reasons set out below, we affirm the decision of the Court of Criminal Appeals denying the petition for extraordinary relief.
At appellant’s court-martial the members unanimously found that the following three aggravating factors were proved beyond a reasonable doubt:
41 MJ at 301. In accordance with RCM 1004(b)(4)(C), Manual for Courts-Martial, United States (1995 ed.),[2] the members also unanimously found that any extenuating and mitigating circumstances were substantially outweighed by any aggravating circumstances. 41 MJ at 302.
In our direct review of this case, we agreed with the Court of Military Review’s conclusion that the number of aggravating factors did not affect the decision of the court-martial to impose the death sentence. 41 MJ at 268.
During oral argument before the Supreme Court, Justice Scalia questioned the constitutional validity of Article 118(4) because it is punishable by death but does not require an intent to kill. Tr. Oral Arg. at 8-14. In its decision, the Supreme Court said:
Article 118(4) by its terms permits death to be imposed for felony murder even if the accused had no intent to kill and even if he did not do the killing himself. The Eighth Amendment does not permit the death penalty to be imposed in those circumstances. Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378-3379, 73 L.Ed. 2d 1140 (1982). As a result, additional aggravating factors establishing a higher culpability are necessary to save Article 118.
Appellant now argues that felony murder under Article 118(4) is constitutionally infirm as a capital offense because it does not require an intent to kill. He argues further that the second aggravating factor -- that he was the actual perpetrator of the killing in the felony murder of Mr. Fay -- is constitutionally defective, because it is unsupported by a unanimous finding of intent to kill or reckless indifference to the value of human life. He argues that the errors were prejudicial because the court members were told that there were two death-eligible offenses when in fact there was only one and that there were three aggravating factors when there were only two. Defense Reply at 8. Appellant asks our Court for "a writ of habeas corpus or other appropriate extraordinary relief setting aside the death penalty . . . and ordering" a sentencing rehearing. Writ-Appeal Petition at 5.
This Court has jurisdiction to act on appellant’s petition for extraordinary relief and to issue a writ under the All Writs Act, 28 USC §1651(a). See Noyd v. Bond, 395 U.S. 683, 695 n. 7 (1969); Dettinger v. United States, 7 MJ 216 (1979); United States v. Frischholz, 16 USCMA 150, 152, 36 CMR 306, 308 (1966).
The aggravating factor at issue in appellant’s case is the so-called "triggerman" factor. The version in effect at the time of appellant’s trial read as follows: "That only in the case of a violation of Article 118(4), the accused was the actual perpetrator of the killing." RCM 1004(c)(8), Manual for Courts-Martial, United States, 1984 (Change 2, 1986).[3] The members specifically found that appellant was the "actual perpetrator of the killing." 41 MJ at 301.
When analyzing an appellant’s assertion that an aggravating factor is invalid, "it is essential to keep in mind the sense in which . . . [it] is ‘invalid.’" Zant v. Stephens, 462 U.S. 862, 885 (1983). Some Supreme Court decisions on "invalid" aggravating factors involve procedural or evidentiary errors resulting in erroneous admission of aggravating evidence or exclusion of mitigating evidence. See, e.g., Tuggle v. Netherland, 116 S.Ct. 283 (1995) (). In this writ appeal appellant does not assert that inadmissible evidence was considered on sentencing or that mitigating evidence was erroneously excluded.
Some Supreme Court cases involve aggravating factors that are too vague. See, e.g., Maynard v. Cartwright, 486 U.S. 356 (1988) (). Appellant does not assert that the "actual perpetrator" factor is too vague.
Instead, appellant asserts that the term, "actual perpetrator of the killing," is too broad and thus fails to "genuinely narrow the class of persons eligible for the death penalty." Writ-Appeal Petition at 7, 12; see Zant, 462 U.S. at 877; see also Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980) (). Quoting the Ninth Circuit in United States v. Cheely, 36 F.3d 1439, 1443 n. 9 (1994), he argues that "[t]he least culpable mental state the Supreme Court has held death-eligible is reckless indifference to human life during commission of a felony." Writ-Appeal Petition at 8.
In assessing the impact of a factor alleged to be invalid, it is necessary to determine where in the sentencing process the alleged error occurred. We recognized in our direct review of this case that the various jurisdictions where capital punishment is authorized fall into two general categories: "weighing" and "nonweighing" jurisdictions. We explained:
A "weighing" state balances extenuating and mitigating circumstances against statutory aggravating factors. A "nonweighing" state requires that a statutory aggravating factor be found in order to adjudge a death sentence, but does not require that it be weighed against extenuating and mitigating circumstances.
41 MJ at 248 ().
The military capital sentencing procedure set out in RCM 1004 and 1006 establishes four "gates" to narrow the class of death-eligible offenders. The first two gates parallel nonweighing jurisdictions in that the members must convict by unanimous vote (RCM 1004(a)(2)) and then find at least one aggravating factor by unanimous vote (RCM 1004(b)(4)(A)). Only after these two gates are passed does the weighing process begin. The third gate is a "weighing" gate, where the members must all "concur" that extenuating and "mitigating circumstances are substantially outweighed by any aggravating circumstances," including the aggravating factors under RCM 1004(c). See RCM 1004(b)(4)(C). Only after these three gates are passed does an accused become "death eligible."
The fourth and final gate is the sentencing decision itself under RCM 1006. Even if all members concur that extenuating and mitigating circumstances are substantially outweighed by aggravating circumstances, they must separately consider whether to impose the death sentence. A death sentence requires the unanimous vote of all members. RCM 1006(d)(4)(A).
The pivotal issue in this case is whether there was any error at the second gate, in connection with the court-martial’s finding with respect to the second aggravating factor: that appellant was "the actual perpetrator of the killing." Accordingly, we first consider whether there was any error at this gate and then evaluate whether any error tainted the death sentence.
Several general principles guide us in determining whether capital sentencing procedures pass constitutional muster. First, sentencing standards "must genuinely narrow the class of persons eligible for...
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