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State v. Biegenwald3/5/1987
unds for the excusal for cause in the presence of jurors.
For these reasons, I conclude that defendant did not obtain a trial before a fair and impartial jury. His conviction of murder and death sentence must be reversed.
II.
The Court reverses the defendant's death sentence. It determines that there were several errors that seriously prejudiced the sentencing proceedings which mandate a reversal of the death penalty. It nevertheless concludes that defendant may be retried as to sentence and that he again may be exposed to the imposition of the death penalty. The Court, in my opinion, neglects to apply constitutional principles of double jeopardy and precepts of fundamental fairness, which under the circumstances presented, bar a retrial for purposes of seeking the imposition of the death penalty.
At the penalty phase of the trial, the prosecutor sought to have the jury consider whether two aggravating factors had been established by the evidence. One aggravating factor was defendant's prior conviction for murder, section c(4)(a); the other was that the murder was outrageously or wantonly vile, horrible or inhuman, section c(4)(c). With respect to the aggravating factor under c(4)(a), the prosecutor submitted in evidence a certified copy of defendant's 1959 murder conviction. The prosecutor offered no additional evidence to establish the aggravating factor under c(4)(c), relying upon the evidence that had been adduced at the guilt-phase of the trial. In support of aggravating factor c(4)(c), the prosecutor in summation argued that four bullet wounds to the head constituted an aggravated battery.
At the sentencing phase of the trial, the defense focused entirely on establishing mitigating factors. Defendant presented a forensic psychiatrist who had made a complete evaluation and diagnosis of defendant during three visits in October and November, 1983. He testified that defendant suffered from a severe personality disorder known as anti-social personality
with paranoid traits. He stated that as a result of this disorder, defendant lacked the capacity to appreciate the wrongfulness of his acts or to conform his conduct to the requirements of the law. On summation, the defense counsel stressed defendant's mental illness as well as his personal history.
In its charge to the jury, the trial court explained that aggravating factors must be found beyond a reasonable doubt, but that the jury had only to be "satisfied" that a mitigating factor existed. The court further instructed the jury, over the prosecutor's objection, that all of the mitigating factors had to be weighed against each aggravating factor proved. However, the court did not instruct the jurors that in order for the death penalty to be imposed they must find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. As the majority points out, the trial court's charge with respect to the burden of proof and the weighing of aggravating and mitigating factors was in error, requiring a reversal of defendant's death sentence. Ante at 53-67.
The prosecutor, as noted, took the position that defendant was guilty of capital murder deserving the death penalty because he committed an aggravated battery in the course of murdering his victim, thereby satisfying c(4)(c). The trial court instructed the jury that to find this aggravating factor, the jury must conclude that the murder "involved either torture or conduct indicating a depraved mind or . . . was so savagely outrageously cruel and violent that the adjectives wantonly, vile or horrible or i
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