Moore v. Clarke

• Decision Date: 25 May 1990
• Docket Number: 88-2679,Nos. 88-2584,s. 88-2584
• Citation: 904 F.2d 1226
• Parties: Carey Dean MOORE, Appellee, v. Harold W. CLARKE, Appellant. Carey Dean MOORE, Appellant, v. Harold W. CLARKE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1226

904 F.2d 1226

Carey Dean MOORE, Appellee, v. Harold W. CLARKE, Appellant.

Carey Dean MOORE, Appellant, v. Harold W. CLARKE, Appellee.

Nos. 88-2584, 88-2679.

United States Court of Appeals,

Eighth Circuit.

Submitted June 16, 1989.

Decided May 25, 1990.

William L. Howland, Lincoln, Neb., for appellant.

Alan E. Peterson, Lincoln, Neb., for appellee.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The Warden of the Nebraska State Penitentiary appeals from the district court's ¹ order granting a writ of habeas corpus to Carey Dean Moore. Moore was convicted on two counts of first-degree murder and sentenced to death on each count after the sentencing panel applied the Nebraska statute dealing with aggravating and mitigating circumstances, Neb.Rev.Stat. Sec. 29-2523 (Reissue 1985). Nebraska statute permits the sentencing panel to consider, in determining if the death penalty should be applied, whether the murder "manifested exceptional depravity by ordinary standards of morality and intelligence." Id. Sec. 29-2523(1)(d). The district court, adopting the Report and Recommendation of the United States Magistrate, ² held that this statutory provision was unconstitutionally vague as written and as construed by the Nebraska Supreme Court. While this is a difficult issue requiring careful consideration, we are satisfied that the district judge correctly analyzed the constitutionality of this statutory aggravating circumstance and, therefore, we affirm the order granting the writ of habeas corpus.

Carey Dean Moore was charged with two counts of first-degree murder stemming from the deaths of two cab drivers in August 1979. Both murders were committed in the perpetration, or the attempted perpetration, of a robbery. Moore waived his right to a trial by jury and was found guilty on both counts by the state trial court. A panel of three judges, including the trial judge, held a sentencing hearing and, pursuant to section 29-2523, ³ determined that the following aggravating circumstances existed: (1) Moore had a "substantial history of serious assaultive or terrorizing criminal activity" in regard to the second murder because it followed only four days after the first murder; (2) Moore committed both murders "in an apparent effort ... to conceal the identity of the perpetrator;" and (3) the murders "manifested exceptional depravity by ordinary standards of morality and intelligence." See Neb.Rev.Stat. Sec. 29-2523(1)(a), (b), and (d).

The sentencing panel then discussed each of the statutory mitigating circumstances recognized by section 29-2523(2) and found none to exist in Moore's case. The panel also considered whether nonstatutory mitigating circumstances existed and specifically focused on Moore's family background. The panel acknowledged that Moore's childhood had been disadvantaged and that his family background was entitled to consideration as a mitigating factor; the panel nevertheless decided that this mitigating factor did not outweigh the aggravating circumstances found to exist beyond a reasonable doubt in Moore's case.

The sentencing panel then analyzed "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases," as required by section 29-2522(3). The panel found that sentencing Moore to death was neither excessive, nor disproportionate, to the sentences imposed in similar cases, and therefore sentenced him to death on both counts of murder.

The convictions and sentence were affirmed by the Supreme Court of Nebraska. State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). The United States Supreme Court denied certiorari in Moore v. Nebraska, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982). The state trial court denied Moore's motion to vacate his conviction filed pursuant to the Nebraska Postconviction Proceedings Act, Neb.Rev.Stat. Secs. 29-3001 to -3004 (Reissue 1985). The denial was affirmed by the Supreme Court of Nebraska, State v. Moore, 217 Neb. 609, 350 N.W.2d 14 (1984), which also denied Moore's request for a rehearing.

Moore then filed a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 (1982). The United States Magistrate recommended that Moore's petition for a writ of habeas corpus be granted with respect to his claim that the "exceptional depravity" language of section 29-2523 was unconstitutionally vague. The magistrate denied Moore's remaining claims, and recommended that Moore be resentenced to life imprisonment unless the State initiated capital resentencing proceedings within a reasonable time after judgment became final. Since the Nebraska death penalty statute requires that aggravating and mitigating circumstances be weighed against each other, Neb.Rev.Stat. Sec. 29-2522, and the Nebraska Supreme Court does not apply a harmless error analysis in cases where an aggravating circumstance is found to have been invalidly applied, ⁴ Moore's sentence would have to be vacated for new sentencing proceedings.

The district court adopted the analysis and conclusions of the magistrate. It held that the "exceptional depravity" language was unconstitutionally vague but denied all other claims. Accordingly, the court granted the writ of habeas corpus. This appeal followed.

I.

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)(d), is unconstitutionally vague as written and construed by the Supreme Court of Nebraska. In the seminal case on this issue, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam), the Supreme Court held that standardless discretion vested in a sentencing body considering the death penalty violated the Eighth and Fourteenth Amendments of the Constitution. Id. at 239-40, 92 S.Ct. at 2727. "Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976). It "is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980) (quoting Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977)).

A.

The Supreme Court of Nebraska, in affirming Moore's death penalty, discussed in detail the statutory provision being challenged here, which reads:

The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence....

Neb.Rev.Stat. Sec. 29-2523(1)(d). The court stated that this aggravating circumstance "describes in the disjunctive two separate circumstances which may operate in conjunction with or independent of one another." Moore, 210 Neb. at 470, 316 N.W.2d at 41. The court agreed with the sentencing panel that the first circumstance, that the murder was especially heinous, atrocious, or cruel, did not exist in this case. Id. The court then discussed the second circumstance as follows:

The second circumstance pertains to the state of mind of the actor. In State v. Stewart, [197 Neb. 497, 250 N.W.2d 849 (1977) ], 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" ... 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".... The sentencing panel found the second circumstance did apply. We agree that the following circumstances exhibit a state of mind exceptionally depraved and totally and senselessly bereft of regard for human life: (1) The murders here were coldly planned as a part of the robberies. (2) The evidence clearly supports the conclusion that the murders were to be repetitive, i.e., the defendant intended to continue on his selected course of conduct so long as his needs required. (3) The victims were selected on the basis of certain characteristics which made it easier for the defendant to shoot them, namely, their ages. His unstated conclusion was that a human life in the middle years is less valuable than a younger life.

Id. at 470-71, 316 N.W.2d at 41. Thus, the sentencing panel based Moore's death penalty, in part, upon a finding of "exceptional depravity," referring to the defendant's state of mind, and this was affirmed by the Nebraska Supreme Court.

Moore argues that the "exceptional depravity" language is unconstitutionally vague in violation of the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the states through the due process clause of the Fourteenth Amendment. The district court found this language to be facially unconstitutional ⁵ because it offered nothing objective as an "inherent restraint on the arbitrary and capricious infliction of the death sentence," Godfrey, 446 U.S. at 428, 100 S.Ct. at 1765, and was not "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action," Gregg, 428 U.S. at 189, 96 S.Ct. at 2932.

We agree with the district court's conclusion that the text of the statute, standing alone, is not constitutionally sufficient. Our examination, however, must extend beyond this conclusion because a state supreme court may salvage a facially-vague statute by construing it to provide the sentencing body with objective criteria for applying the statute. See Godfrey, 446 U.S. at 423, 100 S.Ct. at 1762; Gregg, 428 U.S. at 201, 96 S.Ct. at 2938. Thus, our...