People v. White

Justice MULLARKEY

concurring in part and dissenting in part:

I agree with the majority that the trial court’s use of the “especially heinous, cruel, or depraved” aggravator set forth in section 16-11-103(6)<3), 8A C.R.S. (1986), was improper. Maj. op. at 447-448. This is not a case like People v. Rodriquez, 794 P.2d 965 (Colo.1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991) (victim died of multiple stab wounds, among which were shallow cuts indicating she was tortured), or like People v. Davis, 794 P.2d 159 (Colo. 1990), cert.0 denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991) (victim raped, beaten and then shot multiple times in the head and chest), in which the victims’ bodies were mutilated and abused during the perpetration of their murders. In such cases, all wounds are properly considered under the “especially heinous, cruel, or.depraved” ag-gravator as indicators of the way in which death was inflicted on the victim.

In the case before us, however, a full day passed between the victim’s death by gunshot wound to the head and the mutilation of the body. Moreover, such mutilation occurred not during the murder itself but rather during the defendant’s subsequent efforts to dispose of the corpse. I agree with the majority that, under these circumstances, the defendant’s mutilation of the victim’s corpse does not constitute evidence that the murder was committed “in an especially heinous, cruel, or depraved manner.” Therefore, the trial court erred when it found that this statutory aggravator was applicable.

I dissent because I am not certain beyond a reasonable doubt that the trial court would have imposed a sentence of death if it had not considered the “especially heinous, cruel, or depraved” aggravator but rather had relied solely on White’s two other convictions for first degree murder under the “prior violent felony” aggravator. § 16 — 11— 103(6)(b), 8A C.R.S. (1986). I would vacate the death sentence and remand the case for resentencing to life imprisonment.

The record clearly shows that the trial court emphasized those facts which it erroneously considered relevant to the “especially heinous, cruel, or depraved” aggravator, such *460as the evidence as to corpse mutilation.1 The prosecution’s portion of the sentencing hearing makes up 145 pages of the trial transcript. Proof of the prior violent felony ag-gravator consumes only two pages of the transcript, consisting of the introduction into evidence of self-authenticating documents under C.R.E. 902 to prove White’s previous murder convictions. By contrast, highly prejudicial testimony regarding the dismemberment of the corpse permeated the entire sentencing hearing.

A coroner testified, for example, that severing Vosika’s head and hands “would be a slow, tedious process.” Police officers also testified that White dismembered the corpse and had sex with someone soon after killing Vosika. Roger Gomez testified at length as to what White told him about the disposal of the corpse. Several recorded interviews were introduced into evidence which delved into the gory details of the post-mortem mutilation.

The transcript of the prosecution’s closing argument in the sentencing hearing reflects this same erroneous focus. While only one paragraph deals with the prior violent felony aggravator, the prosecution spends five pages on the “especially heinous, cruel, or depraved” aggravator. As the majority concedes, maj. op. at 448, this testimony should have been disregarded for sentencing purposes. The record leads to the inevitable conclusion, however, that in fact such evidence played an integral part in the trial court’s decision to impose the death penalty.

The trial court’s death sentencing order is 28 pages in length. Only three of those pages discuss the prior violent felony aggra-vator. By contrast, discussion of the invalid “especially heinous, cruel, or depraved” ag-gravator covers eight pages of the same order. The trial court reviewed the defendant’s four interviews, as well as a number of letters White wrote to the district attorney and law enforcement officials, and White’s testimony and demeanor. The trial court considered the relationship between the defendant and Vosika (“a friendship founded upon mutual drug use and involvement in drug transactions” — one and one half pages of the order), the manner in which Vosika was killed (a single gunshot to the back of the head, without any physical torture — just under one page), and the disposal of the body (one page). As to the facts of the disposal of the body, the trial court stated:

After defendant shot and killed Vosika he immediately wrapped the body in a shower curtain and placed it in the trunk of his Mazda automobile. At this time the defendant noticed the next door neighbor driving into her garage, and because White’s garage windows were dirty, confused the brake lights with the emergency equipment of a police car. Therefore, he abandoned further efforts to dispose of the body that night. The next day, in the early afternoon, defendant drove his Mazda vehicle to the Rye/Colorado City area to dispose of the body. Defendant’s intent was to bury the body, and he therefore brought a shovel. After removing the body from the trunk and while defendant was pulling Vosika’s body through a fence he was interrupted by the appearance of a red pickup truck. Although the pickup truck drove away, defendant was convinced he had been discovered. This fear caused him to strike Vosika’s corpse in the face with the shovel as retribution for the consequences of the presumed discovery. Defendant then hid the body, returned to Pueblo and purchased a fine tooth saw in order to dismember Vosika’s body. He immediately returned to the burial site and severed Vosika’s head and hands and buried the torso separate from the hands and head, which were buried together in a *461trash bag. Defendant washed the saw in nearby water and abandoned it, as well as the shovel, in the area and returned to Pueblo disposing of all incriminating evidence in various trash bins around the city. Subsequently, he moved from the Bonny-mede address.

In light of the above, I cannot agree with the majority that the trial court would have imposed the death penalty absent its erroneous consideration of highly prejudicial evidence. The record fails to support the majority’s view that the error committed in this ease was harmless beyond a reasonable doubt. See Clemons v. Mississippi, 494 U.S. 738, 753-54, 110 S.Ct. 1441, 1451, 108 L.Ed.2d 725 (1990) (“Under these circumstances [that is, where one of the two aggra-vators found by the jury was held to be invalid], it would require a detailed explanation based on the record for us possibly to agree that the error in giving the invalid ‘especially heinous’ instruction was harmless.”).

Furthermore, in performing the third step of the sentencing analysis, the trial court stated:

The Court has considered not only the mitigating factors listed above but all mitigation of record and has weighed these factors against only the proven statutory aggravating factors and no others.
The Court, having considered the matter as required by law, is convinced beyond a reasonable doubt that all mitigating factors of record do not, beyond a reasonable doubt, outweigh proven statutory aggravating factors.

Such purported “weighing” gives this court no basis upon which to determine what weight the trial court afforded each aggravator, or the combined weight of the mitigating evidence found, or that, if the trial court had not considered the invalid aggravator, it nonetheless would have imposed a death sentence. Although the weighing mandated by statute is not a mechanical process, but rather “a profoundly moral evaluation of the defendant’s character and crime,” People v. Tenneson, 788 P.2d 786, 791 (Colo.1990) (quoting Satterwhite v. Texas, 486 U.S. 249, 261, 108 S.Ct. 1792, 1800, 100 L.Ed.2d 284 (1988) (Marshall, J., concurring in part and concurring in the judgment)), it is important to note that the trial court had only two aggravators which it placed on the scales against the thirteen mitigators that it found. The assessment changes completely when one of those aggravators is removed. See Stringer v. Black, — U.S. -, -, 112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992) (“[Wjhen the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death’s side of the scale.”). The record is simply devoid of any indication that the trial court would have reached the same conclusion had it correctly weighed the single applicable aggravator against the extensive list of mitigators.

In reaching a different conclusion, the majority commits the same mistake for which it rebukes the trial court, that is, it relies almost exclusively upon the facts underlying the invalid “especially heinous, cruel, or depraved” aggravator. The voluminous testimony regarding that aggravator seems to have inspired a degree of morbid fascination in the events following the murder of Vosika. Even the majority cannot resist the temptation to dwell on such highly prejudicial facts. For example, the majority sets forth in detail the post-mortem abuse and grisly mutilation of Paul Vosika’s body. Maj. op. at 427-430 (statement of the facts) & 449-450 (sentencing analysis). Such information is simply irrelevant, however, to a determination as to the prior violent felony aggravator. See Clemons v. Mississippi, 494 U.S. at 753, 110 S.Ct. at 1450 (finding the Mississippi Supreme Court’s decision to uphold the death penalty “very difficult to accept” in light of its repeated emphasis upon and analysis of the invalid “especially heinous” aggravator in its death sentence order).

The majority compounds this error by considering the facts underlying the murders of Victor Woods and Raymond Garcia. Maj. op. at 427, 432-433, 449-450. Unlike the trial court, which considered certain facts concerning White’s prior convictions for the limited purpose of determining whether they *462involved crimes of violence,2 the majority erroneously emphasizes other highly prejudicial testimony, such as White’s alleged lack of remorse in killing Garcia or his “toying with [Woods] for half an hour” prior to stabbing him. Id. Any evidence other than the fact that one crime was committed with a knife and the other with a gun was correctly disregarded by the trial court, and incorrectly considered by the majority, because such information was irrelevant to determining whether White had been previously convicted of a class 1 or 2 felony involving violence. § 16-ll-309(2)(a)(I).

The majority also fails to give appropriate consideration to the mitigating factors found by the trial court. Despite the fact that the invalidation of an aggravating factor necessarily renders any evidence of mitigation “weightier” or more substantial, the majority simply ignores several important mitigating factors. For example, the majority does not discuss the fact that, while in prison serving two life sentences for other crimes, White voluntarily brought this crime to the authorities’ attention and confessed. As the majority correctly notes, the Vosika murder investigation was inactive when White confessed his involvement. Maj. op. at 428. Vosika’s body had been found and identified in May 1988, but no charges had been filed as of late November 1989 when White first approached the correctional officer. Apparently White was not a suspect, nor was there any physical evidence specifically connecting White to the Vosika homicide, and without his confession, White would not have been prosecuted for this crime. Until White came forward, the prosecution had nothing more than another unsolved crime on its hands.

The majority’s failure to address this miti-gator, much less to give this mitigator its due weight, converts the death penalty weighing process into a meaningless exercise. By its failure to acknowledge White’s essential role in developing the prosecution’s ease, the majority provides a powerful disincentive to every individual who is considering whether to confess and cooperate with the police. When the General Assembly included “cooperation with law enforcement officers or agencies” among the statutory mitigators, it clearly intended to encourage and reward voluntary efforts to come forward with information regarding criminal conduct that may have been committed by a defendant. § 16 — 11— 103(5)(h), 8A C.R.S. (1986). The majority opinion undermines this policy by providing no analysis of the relevance of White’s confession to its decision as to whether the trial court would have imposed the death penalty if it had only considered the one valid aggra-vator.

Finally, although the majority grudgingly mentions that White claimed to seek the death penalty as a means of escaping brutal prison conditions, id. at 450, it fails to discuss the factual support for such a claim. That is, in addition to several inmates testifying to having seen White being severely beaten by prison guards, White appeared for a trial court proceeding in the present case so severely injured that the trial court ordered emergency medical treatment for him.3 By abstracting this mitigator from its factual underpinnings, the majority minimizes its significance and avoids dealing with what may have been White’s greatest incentive to exaggerate the lurid details of Vosika’s murder.

In conclusion, I believe that the prosecution failed to carry its burden of showing that the trial court’s consideration of the invalid aggravator constituted harmless error beyond a reasonable doubt. To the contrary, the record indicates that the testimony surrounding the “especially heinous, cruel, or depraved” aggravator was essential to the trial court’s determination to impose the death sentence. Accordingly, I would vacate *463the sentence of death and remand the case for resentencing to life imprisonment.

KIRSHBAUM, J., joins in this concurrence and dissent.

. In Davis and Rodriguez, the "especially heinous, cruel, or depraved” aggravator was not properly narrowed when the jury was instructed. One factor which we noted as supporting our decision to uphold the death verdict was that the use of the improper aggravator did not permit the jury in either case to consider any improper evidence. All of the evidence admitted in the Davis and Rodriguez penalty phases related to another valid aggravator. Davis, 794 P.2d at 180 n. 14; Rodriguez, 794 P.2d at 983. Here, however, the trial court considered a great deal of extremely prejudicial evidence at the sentencing hearing about how White treated Vosika's corpse, even though such information is entirely irrelevant to the only aggravator applicable in this case.

. Although two police officers, Kenneth Fiorillo of the Colorado Springs Police Department, and Daniel Snell of the City of Pueblo Police Department, testified as to the details of the murders of Victor Lee Woods and Raymond Garcia, respectively, the trial court stated in its death penalty order that "references to underlying circumstances of defendant’s prior first-degree murder convictions and other convictions ... have been disregarded and not considered for any purpose.”

. White was incarcerated continuously both before and during the ,pendency of this case.