Free Motion to Strike - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Action No. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant.
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William Sablan's Motion to Strike "Heinous or Depraved"Statutory Aggravating Factor _______________________________________________________________________ William Sablan, through undersigned court-appointed counsel, respectfully requests this Court to strike the alleged statutory aggravating factor that "the defendant committed the murder of Joey Jesus Estrella in an especially heinous or depraved manner in that it involved serious physical abuse to the victim" on the grounds that the government's evidence is based upon post-mortem abuse. (Document # 868; filed 7/21/03). Background 1. The Second Superseding Indictment ("SSI") includes a "Notice of Special Findings." It states that "[t]he Grand Jury further finds that: 1. . . . g. [William Sablan]
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committed the murder of Joey Jesus Estrella in an especially heinous or depraved manner in that it involved serious physical abuse to the victim." (Document # 868; filed 7/21/03) This is an abbreviated version of 18 U.S.C. § 3592(c)(6). 1 2. The Third Amended Notice of Intent to Seek the Death Penalty ("NOI") similarly alleges that the offense was committed "in an especially heinous or depraved manner in that it involved serious physical abuse to the victim." (Document # 1849; filed
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7/28/06). The government's NOI further describes that factor, including the statement

that: Significant injury and damage was inflicted upon the victim's body above and beyond what was necessary to commit the murder thereby constituting "serious physical abuse" of the victim. Serious physical abuse may be inflicted either before or after death and does not require that the victim be conscious of the abuse at the time it was inflicted. Id. at 5. 2 3. On August 29, 2005, William Sablan filed two motions to strike the `heinousor-depraved" aggravating factor as part of his Phase II motions. (a) The first motion to strike asserted that the factor, particularly as alleged
The Federal Death Penalty Act sets out the following statutory aggravating factor: "the defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim." 18 U.S.C. § 3592(c)(6).
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The Court has ruled that the NOI will not be provided to the jury for use during its deliberations. (Document # 1784). This order was issued in response to a motion by William Sablan that was conceded by the government. (Documents ## 1690; 1726). 2

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in its abbreviated form, was vague and overbroad in violation of the Eighth Amendment. (Document ## 1512; 1598). (b) The second motion to strike asserted that the NOI's allegations relating to the aggravating factor substantively amended the SSI in violation of the Fifth Amendment, and that if serious physical abuse is so broadly defined as to include postmortem abuse, the factor would violate the Eighth Amendment's requirement that aggravating factors genuinely narrow the class or persons eligible for the death penalty and reasonably justify the imposition of a more severe sentence on a defendant compared to others found guilty of murder. (Document ## 1511; 1599). One of Mr. Sablan's arguments was that such a broad definition would be inconsistent with the focus of the other statutory aggravating factors, which relate to the defendant's actions preceding, or resulting in, the death of another person. 4. On April 18, 2006, this Court denied both motions. (Document # 1760). As to the alleged factor's inconsistency with other statutory aggravating factors, the Court noted "that it is premature and improper to speculate what the evidence will be, i.e., the Government may present evidence that the serious physical abuse occurred both before and after death." (Document 1760 at 60). Argument 5. The government's evidence on whether William Sablan committed the murder in "an especially heinous or depraved manner in that it involved serious physical abuse to

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the victim" is now squarely before the Court. Dr. Michael Baden, a pathologist who testified as a government witness, testified that the victim "was still alive when the neck was cut" . . . "that then caused the bleeding, the hemmorhaging that eventually led to his death." (2/27/07 Tr. at 51; 52). "And then when the abdomen was cut, [Mr. Estrella's] already dead. He doesn't feel any pain, he doesn't feel any suffering, and whatever is done is essentially mutilating the dead body." (2/27/07 Tr. at 54). 6. The Court should rule before the opening statements of the penalty phase on whether that evidence is constitutionally relevant and is sufficient to support the alleged factor beyond a reasonable doubt. See United States v. Roman, 371 F.Supp.2d 36, (D. Puerto Rico 2005) (excluding aggravating factors that were not supported by sufficient evidence prior to the penalty phase rather than at its conclusion because the weighing process might be impermissibly skewed if the sentencing jury considered invalid factors, and the aggravating factors at issue related to the defendant's conduct during the commission of the offense and were therefore addressed at the liability trial). Such a prepenalty phase ruling would be particularly appropriate here because the government is proposing jury instructions that include the statement that "[s]erious physical abuse may be inflicted either before or after death." (Gov.'s Revised Proposed Instruction.) Thus, it may fashion its opening statements accordingly. 7. William Sablan reiterates his argument that defining heinous or depraved so broadly as to include post-mortem abuse would be inconsistent with the focus of the

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other statutory aggravating factors, which relate to the defendant's actions preceding, or resulting in, the death of another person. See e.g., 18 U.S.C. § 3592(c)(2), (3), (4), (10), (12), and (15) (relating to prior felony convictions of the defendant and (1), (7), (8), and (9) (relating to the death occurring during the defendant's commission of another felony; the defendant procuring the murder; the defendant murdering for pecuniary gain; and the defendant murdering after substantial planning and premeditation). See also People v. White, 870 424, 448 (Colo. 1994) (after considering the focus of other statutory aggravators, the Colorado Supreme Court held that the trial court had improperly considered the defendant's disposal of the victim's body under the "especially heinous, cruel, or depraved manner" factor). 8. The Tenth Circuit pattern instruction on this statutory aggravator does not include "[s]erious physical abuse may be inflicted either before or after death." as proposed by the government. The government has otherwise relied heavily upon the pattern instructions. 9. Sand, Reiss, Loughlin & Batterman Modern Jury Instructions (Criminal Set), Vol. 3 Instr. 9A-8 & Note (2003), upon which the defense relies, adapted its instruction on this factor from the charge in United States v. Jones, 132 F.3d 232, 250 n.12 (5th Cir. 1998), ­ a case upon which the government relies ­ but specifically excluded the statement that serious physical abuse may include abuse perpetrated after the death of the victim. It Notes state:

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Our recommended instruction differs from that delivered by Judge Cummings in two significant respects. First, it does not instruct the jury that "serious physical abuse" may include abuse perpetrated after the death of the victim. For various reasons, we do not believe that post-mortem abuse to a murder victim's body constitutes "serious physical abuse" within the meaning of 18 U.S.C. 3592(c)(6). . . . In support of its position it cites United States v. Pitera, 795 F. Supp. 546, 558 (E.D.N.Y 1992), aff'd. 986 F.2d 499 (2d Cir. 1992) which suggests that such an instruction is inappropriate in the context of the identically-worded provision of the ADDA, and United States v. Pretlow, 779 F. Supp. 758, 773 (D.N.J. 1991) which upheld the use of "serious physical abuse" in the ADDA to limit "heinous, cruel or depraved" aggravator so long as the "serious physical abuse" to the victim occurred prior to his death (citing Godfrey v. Georgia, 446 U.S. 420, 431 (1988)). 10. In denying Mr. Sablan's motions to strike this factor, this Court relied upon United States v. Chanthadara, 230 F.3d 1237 (10th Cir. 2000), cert. denied, 534 U.S. 992 (2001). Chanthadara does not constitute a solid foundation for the Court's earlier rulings, as the Court itself acknowledged. In denying Mr. Sablan's first motion, the Court stated: "I agree with Defendant that this case is not necessarily controlled by Chanthadara and the other cases cited above because the Government deleted certain words from § 3592(c)(6) in connection with the charging documents in this case." (Document # 1760 at 50). Moreover, in relation to the second motion, the Court stated that "[w]hile Chanthadara did not involve a constitutional challenge, as here, the constitutional issue
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was addressed and rejected in [United States v.] Hall, 152 F.3d 381 (5th Cir. 1998). Because Hall was cited with approval by the Tenth Circuit in Chanthadara, it seems likely that the Tenth Circuit would reject a constitutional challenge." Id. at 58. Mr. Sablan submits that at this point in these proceedings, the Court should decide this matter squarely on its merits, rather than on what the Tenth Circuit "seems likely" to do with his constitutional arguments, particularly because the Chanthadara Court specifically noted that the defendant's challenge to a jury instruction including post-mortem abuse was only one of statutory construction and was not a constitutional challenge. (Sand et. al. make the same observation of Chanthadara.) 11. Moreover, the underlying facts of Jones and Hall do not involve post-mortem serious physical abuse. In Jones the victim was kidnapped from an air force base, taken to the defendant's home where she was sexually assaulted, she was then transported to a bridge outside the city where shw was "repeatedly struck in the head with a tire iron until she died," . . . [t]he blows of such severe force that . . . large pieces of her skull had been driven into her cranial cavity or were missing." Jones, 527 U.S. at 376. The victim in Hall was abducted from her apartment, repeatedly raped first in a car and in a motel, taken to a freshly dug grave where she was repeatedly hit on her head with a shovel, and was then placed in the grave and covered with gasoline and dirt. Hall, 152 F.3d at 12. Many state courts have held that serious physical abuse to the victim's body must occur while the victim is conscious. Rhode v. State, 547 S. 2d 1201, 1205 (Fla.

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1989) (holding that prosecutor misled jury by asking them to consider that the victim was transported after death in a dump truck to dumpster was evidence of heinousness because a defendant's actions after the victim's death cannot be used to support this aggravating factor); State v. Hunt, 371 N.W. 2d 708, 726 (Neb. 1985) (holding that serious physical abuse must occur while victim is conscious and prior to death in context of comparable aggravating factor); State v. Hamlet, 321 S.E. 2d 837, 846 (N.C. 1984) (same); Hayes v. State, 845 P.2d 890, 892 (Okl. Cr. App. 1992 (same). Conclusion The Court should strike the "heinous or depraved" aggravating factor. Postmortem serious physical abuse is insufficient to support this statutory aggravating factor, which serves a critical role in the eligibility portion of the penalty phase. Furthermore, it is not a constitutionally relevant basis upon which to decide who should live and who should die. This ruling should come now, prior to penalty phase, so the jury is not exposed to an invalid aggravating factor. In the alternative, if the Court would like to defer ruling until our penalty phase jury instruction conference, William Sablan requests the Court to prohibit the government from commenting on the statutory aggravating factor, or at least the serious physical abuse aspect of it, in opening statements.

Dated: March 16, 2007

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Respectfully submitted, Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan CERTIFICATE OF SERVICE I hereby certify that on March 16, 2007 I electronically filed the foregoing William Sablan's Motion to Strike "Heinous or Depraved" Statutory Aggravating Factor with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] By: /s/Susan L. Foreman Nathan Chambers Chambers, Dansky & Mulvahill 1601Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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