State v. Aragon, No. 14771

• Court: Idaho Supreme Court
• Writing for the Court: BAKES; DONALDSON, C.J., and SHEPARD; HUNTLEY; BISTLINE; BISTLINE
• Citation: 107 Idaho 358,690 P.2d 293
• Decision Date: 22 June 1984
• Docket Number: No. 14771
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Mark Emilio ARAGON, Defendant-Appellant.

Page 293

690 P.2d 293 107 Idaho 358 STATE of Idaho, Plaintiff-Respondent,
v.
Mark Emilio ARAGON, Defendant-Appellant. No. 14771. Supreme Court of Idaho. June 22, 1984. Rehearing Denied Nov. 26, 1984. Remittitur and Order Nov. 26, 1984.

Page 295

[107 Idaho 360] Robert Fallowfield, Ketchum, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.

BAKES, Justice.

Appellant was convicted of first degree murder in the beating death of eight month old Monique Longoria and was sentenced to death. He appeals both his conviction and his sentence. In addition, we review this case pursuant to our duty under I.C. § 19-2827 to independently review sentences imposing a penalty of death to ensure that those sentences are free from error, and are proportionate and just. We find that no reversible error was committed by the trial court, and we affirm the conviction and sentence.

Viewing the evidence in the record most favorably to the respondent, as we must on appeal, State v. Barsness, 102 Idaho 210, 628 P.2d 1044 (1981), the facts adduced at trial are as follows. In early 1982, appellant was living in Ketchum with Teresa Watson and her daughter, Monique Longoria. On April 10, 1982, Watson placed Monique in the bathtub unattended while she and appellant ate lunch. Ten minutes later, appellant went to use the bathroom. Watson testified that about five minutes later she heard a gasp from Monique and loud pounding noises. At that point, Watson[107 Idaho 361]

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went into the bathroom to investigate. She observed appellant sitting on the toilet, with "one hand in the tub like he was splashing water on her." At appellant's direction, Watson left the bathroom and returned to the living room. After a short time, appellant emerged from the bathroom and asked Watson if he should take the baby out of the bathtub. Watson replied in the affirmative. Appellant then reentered the bathroom and then called Watson, indicating something was wrong with the baby. Watson went into the bathroom and observed that the baby was not breathing. She took the baby into the bedroom and performed cardiopulmonary resuscitation. At that point she noticed injuries to the baby's head. She asked appellant to summon an ambulance, but he refused. Watson then ran to summon an ambulance. When she returned, appellant asked her, "What are you going to tell them?" She replied, "I'm going to tell them the truth."

Monique was taken to the local hospital, and, because of her critical condition, she was transferred to a Salt Lake City, Utah, hospital. Doctors there examined her and attempted to revive her, but she died on April 12, 1982. An autopsy was performed. Medical testimony at trial indicated that Monique died from blows to the head, a minimum of two and probably three blows. Testimony indicated that the blows which were inflicted were of a force equal to dropping Monique off a three- or four-story building two or three times. Testimony indicated that the injuries could not have been inflicted accidentally or by the activities of Monique herself.

I

Appellant was convicted of first degree murder by a jury and, after a presentence investigation and an aggravation/mitigation hearing, was sentenced to death. The trial court issued a detailed explanation of the factors that he had considered in mitigation and aggravation. After a detailed discussion of the mitigating circumstances, and upon finding three statutory aggravating circumstances existed beyond a reasonable doubt, the court stated: "The court is unable to find any mitigating circumstances which could overcome the aggravating circumstances and must comply with the legislature's mandate. The court must and does impose the sentence of death on the defendant Mark Emilio Aragon." Appellant asserts numerous errors on appeal.

A.

Appellant first argues that the trial court erred in its instructions to the jury defining "malice" and the elements of first degree murder. He argues that the definitions given to the jury did not sufficiently distinguish between a murder committed with malice, which may be first or second degree murder, and a murder committed with premeditation, deliberation and willfulness, which is always first degree murder. Without sufficient distinction between these elements, appellant argues, a jury may erroneously convict a person of first degree murder, for which the death penalty may be imposed, where the facts of the case support only a second degree murder conviction, with the death penalty unavailable as a form of punishment. If this were to happen, appellant argues, imposition of the death penalty would be rendered unjust and disproportionate, in violation of the eighth amendment of the United States Constitution.

Instruction 23 given by the court defined murder as:

"Murder is the unlawful killing of a human being with malice aforethought.

"Malice is that state of mind manifested by the doing of an unlawful and felonious act intentionally, deliberately, and without legal cause or excuse.

"Malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."

[107 Idaho 362]

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The first sentence of the above instruction is taken directly from I.C. § 18-4001. ¹ The third paragraph is taken directly from I.C. § 18-4002. ²

Instruction 25 defined first degree murder as follows:

"Murder in the First Degree is defined in this case as all murder which is perpetrated by any kind of wilful, deliberate and premeditated killing.

"In order to prove the commission of the crime of Murder in the First Degree, each of the following elements must be proved beyond a reasonable doubt:

(a) That a human being was killed;

(b) That the killing was unlawful;

(c) That the killing was done with malice aforethought;

(d) That the killing was willful;

(e) That the killing was deliberate; and

(f) That the killing was premeditated."

Instruction 27 defined second degree murder as follows:

"Murder in the Second Degree is defined in this case as all other kinds of murder.

"In order to prove the commission of the crime of Murder in the Second Degree, each of the following elements must be proved beyond a reasonable doubt:

(a) That a human being was killed;

(b) That the killing was unlawful;

(c) That the killing was done with malice aforethought."

The court then gave the following instruction 28, distinguishing the elements differentiating first and second degree murder:

"As set forth in the preceding instructions on murder, any unlawful killing of a human being with malice aforethought is murder. If nothing further characterizes the killing, the murder is of the second degree. To constitute the higher offense of murder in the first degree, there must be wilfulness, deliberation and premeditation in addition to malice aforethought.

"Wilfulness means that there was manifested a clear intent to take life.

"Deliberation and premeditation means done with reflection and conceived beforehand and not done upon a sudden heat of passion or other condition precluding the idea of deliberation.

"Premeditation does not require an appreciable space of time between the intention to kill and the killing; they may be as instantaneous as successive thoughts of the mind."

This instruction incorporated parts of the previously mentioned instruction, and also noted the elements set out in I.C. § 18-4003. ³

An instruction to the jury that essentially follows the words of a statute normally is not error. "Ordinarily, the language employed by the legislature in defining a crime is deemed to be best suited for that purpose, and error cannot be predicated upon its use in informations and instructions." State v. Brooks, 49 Idaho 404, 409, 288 P. 894 (1930); see also State v. Anstine, 91 Idaho 169, 418 P.2d 210 (1966). Because these instructions follow the language of the statute, it was not error to give them. Furthermore, the major portion of these instructions was requested by appellant. Particularly, appellant complains of given instruction 28, claiming it gave an improper definition of the terms "deliberate" and "premeditated." However, given instruction 28 is substantially identical to [107 Idaho 363]

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defendant's requested instruction 12. Appellant cannot assert as error on appeal the giving of an instruction which he himself requested. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Daellenbach v. State, 562 P.2d 679 (Wyo.1977).

The instructions did not blur the distinction between first and second degree murder. Jury instructions must be read in their entirety, as a whole, not in their isolated parts. State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980); State v. Tisdel, 101 Idaho 52, 607 P.2d 1326 (1980); State v. Peterman, 100 Idaho 269, 596 P.2d 442 (1979). In reading the instructions as a whole, we note that they are internally consistent, and they sufficiently define for the jury the distinction between first and second degree murder. On the one hand, the jury was informed of the definition of murder, and that it involves killing with malice. Malice was defined as a "state of mind" manifested by an intentional or deliberate act. The jury was instructed that malice may be express or implied. These were proper definitions of malice and its interrelationship with the definition of murder.

Further, the jury was instructed that if nothing more than malice, or the intent to do an unlawful act, was proven beyond a reasonable doubt, then the crime could not be first degree murder. The jury was instructed that if it could find beyond a reasonable doubt three other elements--willfulness, deliberation and premeditation--then the defendant was guilty of first degree murder. Malice, the intent to act...