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Whitesides v. State4/2/2004
obert Glenn's death was apparently unexpected, and, based on the medical examiner's preliminary findings (which revealed a blood alcohol level of 0.19), Glenn's death may have been partly due to his consumption of alcohol at the time he took the heroin. The State does not contend that Whitesides should be held criminally responsible for that death. Nevertheless, a reasonable judge might conclude, echoing the words of the sentencing judge in Martin, that it would be "impossible to ignore that [death] or to separate it out, since [Glenn's death] was part of the circumstances" of Whitesides's offense.
We do not decide this issue now - for Whitesides has not had the opportunity to analyze these cases and respond to this argument. However, we conclude that Judge Stephens should at least be allowed to consider, if he wishes, the question of whether the circumstance of Glenn's death makes aggravator (c)(10) applicable to Whitesides's case.
Conclusion
The decision of the superior court regarding aggravator (c)(1) is REVERSED, and this case is REMANDED to the superior court so that Whitesides can be resentenced. If Judge Stephens wishes, he is authorized to consider the applicability of aggravator (c)(10) to Whitesides's case.
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