Arave v. Creech
Opinion of the Court
delivered the opinion of the Court.
In 1981 Thomas Eugene Creech beat and kicked to death a fellow inmate at the Idaho State Penitentiary. He pleaded guilty to first-degree murder and was sentenced to death. The sentence was based in part on the statutory aggravating circumstance that “[b]y the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life. ” Idaho Code § 19 — 2515(g)(6) (1987). The sole question we must decide is whether the “utter disregard” circumstance, as interpreted by the Idaho Supreme Court, adequately channels sentencing discretion as required by the Eighth and Fourteenth Amendments.
I
The facts underlying this case could not be more chilling. Thomas Creech has admitted to killing or participating in the killing of at least 26 people. The bodies of 11 of his victims — who were shot, stabbed, beaten, or strangled to death — have been recovered in seven States. Creech has
Creech’s most recent victim was David Dale Jensen, a fellow inmate in the maximum security unit of the Idaho State Penitentiary. When he killed Jensen, Creech was already serving life sentences for other first-degree murders. Jensen, about seven years Creech’s junior, was a nonviolent car thief. He was also physically handicapped. Part of Jensen’s brain had been removed prior to his incarceration, and he had a plastic plate in his skull.
The circumstances surrounding Jensen’s death remain unclear, primarily because Creech has given conflicting accounts of them. In one version, Creech killed Jensen in self-defense. In another — the version that Creech gave at his sentencing hearing — other inmates offered to pay Creech or help him escape if he killed Jensen. Creech, through an intermediary, provided Jensen with makeshift weapons and then arranged for Jensen to attack him, in order to create an excuse for the killing. Whichever of these accounts (if either) is true, the Idaho Supreme Court found that the record supported the following facts:
“Jensen approached Creech and swung a weapon at him which consisted of a sock containing batteries. Creech took the weapon away from Jensen, who returned to his cell but emerged with a toothbrush to which had been taped a razor blade. When the two men again met, Jensen made some movement toward Creech, who then struck Jensen between the eyes with the battery laden sock, knocking Jensen to the floor. The fight continued, according to Creech’s version, with Jensen swinging the razor blade at Creech and Creech hitting Jensen with the battery filled sock. The plate imbedded in Jensen’s skull shattered, and blood from Jensen’s skull was splashed on the floor and walls. Finally, the sock broke*467 and the batteries fell out, and by thát time Jensen was helpless. Creech then commenced kicking Jensen about the throat and head. Sometime later a guard noticed blood, and Jensen was taken to the hospital, where he died the same day.” State v. Creech, 105 Idaho 362, 364, 670 P. 2d 463, 465 (1983), cert. denied, 465 U. S. 1051 (1984).
Creech pleaded guilty to first-degree murder. The trial judge held a sentencing hearing in accordance with Idaho Code § 19-2515(d) (1987). After the hearing, the judge issued written findings in the format prescribed by Rule 33.1 of the Idaho Criminal Rules. Under the heading “Facts and Argument Found in Mitigation,” he listed that Creech “did not instigate the fight with the victim, but the victim, without provocation, attacked him. [Creech] was initially justified in protecting himself.” App. 32. Under the heading “Facts and Argumen[t] Found in Aggravation,” the judge stated:
“[T]he victim, once the attack commenced, was under the complete domination and control of the defendant. The murder itself was extremely gruesome evidencing an excessive violent rage. With the victim’s attack as an excuse, the . . . murder then took on many of the aspects of an assassination. These violent actions . . . went well beyond self-defense.
“. . . The murder, once commenced, appears to have been an intentional, calculated act.” Id., at 32-33.
The judge then found beyond a reasonable doubt five statutory aggravating circumstances, including that Creech, “[b]y the murder, or circumstances surrounding its commission,... exhibited utter disregard for human life.” Id., at 34. He observed in this context that “[a]fter the victim was helpless [Creech] killed him.” Ibid. Next, the judge concluded that the mitigating circumstances did not outweigh the aggravat
After temporarily remanding for the trial judge to impose sentence in open court in Creech’s presence, the Idaho Supreme Court affirmed. The court rejected Creech’s argument that the “utter disregard” circumstance is unconstitutionally vague, reaffirming the limiting construction it had placed on the statutory language in State v. Osborn, 102 Idaho 405, 631 P. 2d 187 (1981):
“ ‘A .. . limiting construction must be placed upon the aggravating circumstances in I. C. § 19 — 2515[g] (6), that “[b]y the murder, or the circumstances surrounding its commission, the defendant exhibited utter disregard for human life.” To properly define this circumstance, it is important to note the other aggravating circumstances with which this provision overlaps. The second aggravating circumstance, I. C. § 19 — 2515[g](2), that the defendant committed another murder at the time this murder was committed, obviously could show an utter disregard for human life, as could the third aggravating circumstance, I. C. § 19-2515[g](3), that the defendant knowingly created a great risk of death to many persons. The same can be said for the fourth aggravating circumstance, I. C. § 19-2515[g](4), that the murder was committed for remuneration. Since we will not presume that the legislative intent was to duplicate any already enumerated circumstance, thus making [the “utter disregard” circumstance] mere surplusage, we hold that the phrase “utter disregard” must be viewed in reference to acts other than those set forth in I. C. §§19-2515[g](2), (3), and (4). We conclude instead that the phrase is meant to be reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i. e., the cold-blooded, pitiless slayer.’” Creech, supra, at 370,*469 670 P. 2d, at 471 (quoting Osborn, supra, at 418-419, 681 P. 2d, at 200-201) (citation omitted).
After independently reviewing the record, the Idaho Supreme Court also held that the evidence clearly supported the trial judge’s -findings of aggravating and mitigating circumstances, including the finding that Creech had exhibited “utter disregard for human life.” 105 Idaho, at 369, 670 P. 2d, at 470. Then, as required by Idaho law, see Idaho Code § 19-2827(c)(3) (1987), the court compared Creech’s case to similar cases in order to determine whether his sentence was excessive or disproportionate. The court emphatically concluded that it was not: “We have examined cases dating back more than 50 years and our examination fails to disclose that any such remorseless, calculating, cold-blooded multiple murderer has . . . ever been before this Court.” 105 Idaho, at 375, 670 P. 2d, at 476 (footnote omitted).
Creech filed a petition for writ of habeas corpus in the United States District Court for the District of Idaho. The District Court denied relief. See Creech v. Arave, No. 86-1042 (June 18, 1986). The Court of Appeals for the Ninth Circuit, however, agreed with Creech that the “utter disregard” circumstance is unconstitutionally vague. 947 F. 2d 873 (1991). The court first considered the statutory language itself and concluded that the phrase “utter disregard” does not adequately channel sentencing discretion. Id., at 882-883. The court then considered the Osborn narrowing construction and found it unsatisfactory as well. Explaining what “utter disregard” does not mean, the Court of Appeals reasoned, does not give the phrase content. 947 F. 2d, at 883, n. 12. Nor do the words “ ‘the highest, the utmost, callous disregard for human life’ ” clarify the statutory language; they merely emphasize it. Id., at 883-884 (citing Maynard v. Cartwright, 486 U. S. 356, 364 (1988)). The phrase “cold-blooded, pitiless slayer” also was deemed inadequate. The Court of Appeals construed our precedents, including Walton v. Arizona, 497 U. S. 639 (1990), to
Three judges dissented from an order denying rehearing en banc. The dissenters argued that the panel had misconstrued both the “utter disregard” factor and this Court’s prior decisions. Whether a defendant is a “cold-blooded, pitiless slayer,” they said, is not a subjective inquiry; it is an evidentiary question to be determined from facts and circumstances. Id., at 890 (opinion of Trott, J.). The dissenters found the Osborn limiting construction indistinguishable from the construction this Court approved in Walton. 947 F. 2d, at 890. We granted certiorari, limited to the narrow question whether the “utter disregard” circumstance, as interpreted by the Idaho Supreme Court in Osborn, is unconstitutionally vague. See 504 U. S. 984 (1992).
II
This case is governed by the standards we articulated in Walton, supra, and Lewis v. Jeffers, 497 U. S. 764 (1990). In Jeffers we reaffirmed the fundamental principle that, to satisfy the Eighth and Fourteenth Amendments, a capital sentencing scheme must “ ‘suitably direc[t] and limi[t]’ ” the sentenced discretion ‘“so as to minimize the risk of wholly arbitrary and capricious action.’ ” Id., at 774 (quoting Gregg v. Georgia, 428 U. S. 153, 189 (1976) (joint opinion of Stewart,
In Walton we set forth the inquiry that a federal court must undertake when asked to decide whether a particular aggravating circumstance meets these standards:
“[The] federal court.. . must first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentences If so, then the federal court must attempt to determine whether the state courts have further defined the vague terms and, if they have done so, whether those definitions are constitutionally sufficient, i. e., whether they provide some guidance to the sentences” 497 U. S., at 664 (emphasis in original).
Where, as in Idaho, the sentencer is a judge rather than a jury, the federal court must presume that the judge knew and applied any existing narrowing construction. Id., at 653.
Unlike the Court of Appeals, we do not believe it is necessary to decide whether the statutory phrase “utter disregard for human life” itself passes constitutional muster. The Idaho Supreme Court has adopted a limiting construction, and we believe that construction meets constitutional requirements.
Contrary to the dissent’s assertions, see post, at 481-485, the phrase “cold-blooded, pitiless slayer” is not without content. Webster’s Dictionary defines “pitiless” to mean devoid of, or unmoved by, mercy or compassion. Webster’s Third New International Dictionary 1726 (1986). The lead entry for “cold-blooded” gives coordinate definitions. One,
In ordinary usage, then, the phrase “cold-blooded, pitiless slayer” refers to a killer who kills without feeling or sympathy. We assume that legislators use words in their ordinary, everyday senses, see, e. g., INS v. Phinpathya, 464 U. S. 183, 189 (1984), and there is no reason to suppose that judges do otherwise. The dissent questions our resort to dictionaries for the common meaning of the word “cold-blooded,” post, at 482, but offers no persuasive authority to suggest that the word, in its present context, means anything else.
The Court of Appeals thought the Osborn limiting construction inadequate not because the phrase “cold-blooded, pitiless slayer” lacks meaning, but because it requires the sentencer to make a “subjective determination.” We disagree. We are not faced with pejorative adjectives such as “especially heinous, atrocious, or cruel” or “outrageously or wantonly vile, horrible and inhuman” — terms that describe a crime as a whole and that this Court has held to be unconstitutionally vague. See, e. g., Shell v. Mississippi, 498 U. S. 1 (1990) (per curiam); Cartwright, 486 U. S., at 363-364; God-
Determining whether a capital defendant killed without feeling or sympathy is undoubtedly more difficult than, for example, determining whether he “was previously convicted of another murder,” Idaho Code § 19-2515(g)(l) (1987). But that does not mean that a State cannot, consistent with the Federal Constitution, authorize sentencing judges to make the inquiry and to take their findings into account when deciding whether capital punishment is warranted. This is the import of Walton. In that case we considered Arizona’s “especially heinous, cruel, or depraved” circumstance. The Arizona Supreme Court had held that a crime is committed in a “depraved” manner when the perpetrator “‘relishes the murder, evidencing debasement or perversion,’ or ‘shows an indifference to the suffering of the victim and evidences a sense of pleasure’ in the killing.” Walton, supra, at 655 (quoting State v. Walton, 159 Ariz. 571, 587, 769 P. 2d 1017, 1033 (1989)). We concluded that this construction adequately guided sentencing discretion, even though “the proper degree of definition of an aggravating factor of this nature is not susceptible of mathematical precision.” 497 U. S., at 655; accord, Jeffers, 497 U. S., at 777; cf. Proffitt v. Florida, 428 U. S. 242, 260 (1976) (White, J., concurring in judgment) (approving Florida statutory aggravating circumstances that, “although .. . not susceptible of mechanical ap
The language at issue here is no less “clear and objective” than the language sustained in Walton. Whether a defendant “relishes” or derives “pleasure” from his crime arguably may be easier to determine than whether he acts without feeling or sympathy, since enjoyment is an affirmative mental state, whereas the cold-bloodedness inquiry in a sense requires the sentencer to find a negative. But we do not think so subtle a distinction has constitutional significance. The Osborn limiting construction, like the one upheld in Walton, defines a state of mind that is ascertainable from surrounding facts. Accordingly, we decline to invalidate the “utter disregard” circumstance on the ground that the Idaho Supreme Court’s limiting construction is insufficiently “objective.”
Of course, it is not enough for an aggravating circumstance, as construed by the state courts, to be determinate. Our precedents make clear that a State’s capital sentencing scheme also must “genuinely narrow the class of persons eligible for the death penalty.” Zant v. Stephens, 462 U. S. 862, 877 (1983). When the purpose of a statutory aggravating circumstance is to enable the sentencer to distinguish those who deserve capital punishment from those who do not, the circumstance must provide a principled basis for doing so. See Jeffers, supra, at 776; Godfrey, 446 U. S., at 433. If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm. See Cartwright, supra, at 364 (invalidating aggravating circumstance that “an ordinary person could honestly believe” described every murder); Godfrey, supra, at 428-429 (“A person of ordinary sensibility could fairly characterize almost every murder as ‘outrageously or wantonly vile, horrible and inhuman’ ”).
We acknowledge that, even within these broad categories, the word “pitiless,” standing alone, might not narrow the class of defendants eligible for the death penalty. A sentencing judge might conclude that every first-degree murderer is “pitiless,” because it is difficult to imagine how a person with any mercy or compassion could kill another human being without justification. Given the statutory scheme, however, we believe that a sentencing judge reason
Creech argues that the Idaho courts have not applied the “utter disregard” circumstance consistently. He points out that the courts have found defendants to exhibit “utter disregard” in a wide range of cases. This, he claims, demonstrates that the circumstance is nothing more than a catchall. The dissent apparently agrees. See post, at 485-487. The State, in turn, offers its own review of the cases and contends that they are consistent. In essence, the parties and the dissent would have us determine the facial constitutionality of the “utter disregard” circumstance, as construed in Osborn, by examining applications of the circumstance in cases not before us.
As an initial matter, we do not think the fact that “[a]ll kinds of... factors,” post, at 486, may demonstrate the requisite state of mind renders the Osborn construction facially invalid. That the Idaho courts may find first-degree murderers to be “cold-blooded” and “pitiless” in a wide range of circumstances is unsurprising. It also is irrelevant to the question before us. We did not undertake a comparative analysis of state court decisions in Walton. See 497 U. S., at 655 (construing the argument that -the aggravating circumstance “has been applied in an arbitrary manner” as a challenge to the state court’s proportionality review). And in Jeffers we stated clearly that the question whether state
A comparative analysis of state court cases, moreover, would be particularly inappropriate here. The Idaho Supreme Court upheld Creech’s death sentence in 1983 — before it had applied Osborn to any other set of facts. None of the decisions on which the dissent relies, or upon which Creech asks us to invalidate his death sentence, influenced either the trial judge who sentenced Creech or the appellate judges who upheld the sentence. And there is no question that Idaho’s formulation of its limiting construction has been consistent. The Idaho Supreme Court has reaffirmed its original interpretation of “utter disregard” repeatedly, often reciting the definition given in Osborn verbatim. See, e. g., State v. Card, 121 Idaho 425, 435-436, 825 P. 2d 1081, 1091-1092 (1991) (citing cases), cert. denied, 506 U. S. 915 (1992). It also has explained that “utter disregard” differs from Idaho’s “heinous, atrocious or cruel” aggravating circumstance, Idaho Code § 19-2515(g)(5) (1987), because the Osborn construction focuses on the defendant’s state of mind. State v.
HH > — (
Creech argues alternatively that the “utter disregard’ circumstance, even if facially valid, does not apply to him. He suggests — as did the Court of Appeals and as does the dissent, post, at 488 — that the trial judge’s findings that he was provoked and that he exhibited an “excessive violent rage” are irreconcilable with a finding of “utter disregard.” The Idaho Supreme Court, Creech claims, did not cure the error on appeal. There also appears to be some question whether the other murders that Creech has committed, and the self-defense explanations he has offered for some of them, bear on the “utter disregard” determination. See Tr. of Oral Arg. 5-7, 18-21; cf. post, at 488, n. 15.
These are primarily questions of state law. As we said in Jeffers, a state court’s application of a valid aggravating circumstance violates the Constitution only if “no reasonable sentencer” could find the circumstance to exist. 497 U. S., at 783. The Court of Appeals had no occasion to decide the Jeffers issue in this case, since it found the “utter disregard” circumstance facially vague. The posture of the case, moreover, makes it unnecessary for us to reach the remaining arguments. The Court of Appeals granted Creech relief on two other claims: that the trial judge improperly refused to allow him to present new mitigating evidence when he was resentenced in open court, and that the judge applied two aggravating circumstances without making a finding required under state law. See 947 F. 2d, at 881-882. On the
It is so ordered.
Dissenting Opinion
with whom Justice Stevens joins, dissenting.
Confronted with an insupportable limiting construction of an Unconstitutionally vague statute, the majority in turn concocts its own limiting construction of the state court’s formulation. Like “nonsense upon stilts,”
I
I discuss the applicable legal standards only briefly, because, for the most part, I agree with the majority about what is required in a case of this kind. As the majority acknowledges, ante, at 474, “an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U. S. 862,
II
The Idaho Supreme Court has determined that under our cases Idaho’s statutory phrase, “utter disregard for human life,” requires a limiting construction, see State v. Osborn, 102 Idaho 405, 418, 631 P. 2d 187, 200 (1981); Sivak v. State, 112 Idaho 197, 209, 731 P. 2d 192, 204 (1986), and petitioner does not challenge the Court of Appeals’ conclusion that the phrase, unadorned, fails to meet constitutional standards. This is understandable. Every first-degree murder will demonstrate a lack of regard for human life, and there is no
Under Osborn, an offense demonstrates “utter disregard for human life” when the “acts or circumstances surrounding the crime . . . exhibit the highest, the utmost, callous disregard for human life, i. e., the cold-blooded, pitiless slayer.” 102 Idaho, at 419, 631 P. 2d, at 201. Jettisoning all but the term, “cold-blooded,” the majority contends that this cumbersome construction clearly singles out the killing committed “without feeling or sympathy.” Ante, at 476. As an initial matter, I fail to see how “without feeling or sympathy” is meaningfully different from “devoid of . . . mercy or compassion” — the definition of “pitiless” that the majority concedes to be constitutionally inadequate. See ante, at 471.
Even if there is a distinction, however, the “without feeling or sympathy” test, which never has been articulated by any Idaho court, does not flow ineluctably from the phrase at issue in this case: “cold-blooded.” I must stress in this regard the rather obvious point that a “facial” challenge of this nature — one alleging that a limiting construction provides inadequate guidance — cannot be defeated merely by a dem
I begin with “ordinary usage.” The majority points out that the first definition in Webster’s Dictionary under the entry “cold-blooded” is “‘marked by absence of warm feelings: without consideration, compunction, or clemency.’” Ante, at 472, quoting Webster’s Third New International Dictionary 442 (1986). If Webster’s’ rendition of the term’s ordinary meaning is to be credited, then Idaho has singled out murderers who act without warm feelings: those who act without consideration, compunction, or clemency. Obviously that definition is no more illuminating than the adjective “pitiless” as defined by the majority. What murderer does act with consideration or compunction or clemency?
In its eagerness to boil the phrase down to a serviceable core, the majority virtually ignores the very definition it cites. Instead, the majority comes up with a hybrid all its own — “without feeling or sympathy” — and then goes one step further, asserting that because the term “cold-blooded” so obviously means “without feeling,” it cannot refer as ordinarily understood to murderers who “kill with anger, jealousy, revenge, or a variety of other emotions.” Ante, at 476. That is incorrect. In everyday parlance, the term “coldblooded” routinely is used to describe killings that fall outside the majority’s definition. In the first nine weeks of this
In legal usage, the metaphor “cold blood” does have a specific meaning. “Cold blood” is used “to designate a willful, deliberate, and premeditated homicide.” Black’s Law Dictionary 260 (6th ed. 1990). As such, the term is used to differentiate between first- and second-degree murders.
Finally, I examine the construction’s application by the Idaho courts. The majority acknowledges the appropriateness of examining “other state decisions when the construction of an aggravating circumstance has been unclear,” such as where state courts have not adhered to a single limiting construction. Ante, at 477. Here, however, the majority believes such an inquiry is “irrelevant,” ante, at 476, because “there is no question that Idaho’s formulation of its limiting construction has been consistent,” ante, at 477. The majority misses the point. Idaho’s application of the Osborn formulation is relevant not because that formulation has been inconsistently invoked, but because the construction has never meant what the majority says it does. In other words, it is the majority’s reconstruction of the (unconstitutional) construction that has not been applied consistently (or ever, for that matter). If, for example, a State declared that “jaberwocky” was an aggravating circumstance, and then carefully invoked “jaberwocky” in every one of its capital cases, this Court could not simply decide that “jaber-wocky” means “killing a police officer” and then dispense with any inquiry into whether the term ever had been understood in that way by the State’s courts, simply because the “jaberwocky” construction consistently had been reaffirmed.
An examination of the Idaho cases reveals that the Osborn formulation is not much better than “jaberwocky.” As
The futility of the Idaho courts’ attempt to bring some rationality to the “utter disregard” circumstance is glaringly evident in the sole post-Osborn case that endeavors to explain the construction in any depth. In State v. Fain, 116 Idaho 82, 774 P. 2d 252, cert. denied, 493 U. S. 917 (1989), the court declared that the “utter disregard” factor refers to “the defendant’s lack of conscientious scruples against killing
Petitioner in his brief embraces Fain’s broad construction. “In every case in which the Idaho Supreme Court has upheld a death sentence based wholly or in part on a finding of utter disregard for human life, the defendant had acted without conscientious scruple against killing.” Brief for Petitioner 25. Petitioner cites this reassuring fact as the “best evidence that Idaho’s utter disregard factor is not so broad that it operates simply as a catch-all for murders not covered by other aggravating circumstances.” Id., at 24. This “best evidence” is not very good evidence, especially when viewed against the fact that the Idaho Supreme Court never has reversed a finding of utter disregard.
Ultimately, it hardly seems necessary to look beyond the record of this case to determine that either the majority’s construction is inadequate, or that there was insufficient evidence to support the “utter disregard” factor here. The record, which the majority takes pains to assure us “could not be more chilling,” ante, at 465,
Ill
Let me be clear about what the majority would have to show in order to save the Idaho statute: that, on its face, the Osborn construction — “the highest, the utmost, callous disregard for human life, i. e., the cold-blooded, pitiless slayer” — refers clearly and exclusively to crimes that occur “without feeling or sympathy,” that is, to those that occur
There is, of course, something distasteful and absurd in the very project of parsing this lexicon of death. But as long as we are in the death business, we shall be in the parsing business as well. Today’s majority stretches the bounds of permissible construction past the breaking point. “ ‘Vague terms do not suddenly become clear when they are defined by reference to other vague terms,’ ” Walton v. Arizona, 497 U. S., at 693-694, n. 16 (dissenting opinion), quoting Cartwright v. Maynard, 822 F. 2d 1477, 1489 (CA10 1987), nor do sweeping categories become narrow by mere restatement. The Osborn formulation is worthless, and neither common usage, nor legal terminology, nor the Idaho cases support the majority’s attempt to salvage it. The statute is simply unconstitutional and Idaho should be busy repairing it.
I would affirm the judgment of the Court of Appeals.
J. Bentham, Anarchical Fallacies, in 2 Works of Jeremy Bentham 501 (1843).
Of course, even if the phrase “utter disregard” were narrowing and clear, a purported limiting construction from the State’s high court that actually undid any narrowing or clarity would render the statute unconstitutional. For example, if the statute allowed the death sentence where the murder was committed for pay, but an authoritative construction from the State Supreme Court told trial courts that the statute covered every murder committed for “bad reasons,” the state scheme would be unconstitutional. In the present case, any clarity that may be imparted, and any channeling that may be done by the phrase, “utter disregard for human life,” is destroyed by the boundless and vague Osborn construction adopted as the authoritative interpretation of the statute.
Cf. State v. Charboneau, 116 Idaho 129, 172, 774 P. 2d 299, 342 (1989) (Bistline, J., dissenting) (“What first degree murderer fails to show ‘callous disregard for human life’? I suppose this would be the ‘pitiful’ slayer, who, prior to delivering the fatal blow, tells the victim, ‘Excuse me, pardon me, I know it’s inconvenient, but I must now take your life’ ”).
See Kuczka, Self-Defense Claimed in Murder Trial, Chicago Tribune, Feb. 3,1993, p. 5 (“To prosecutors, Eric Moen is a cold-blooded killer who gunned down his wife’s former boyfriend in a Streamwood restaurant parking [lot] during a quarrel over visitation rights to the ex-boyfriend’s infant daughter”).
See Caba, Friedman Prosecutor Rebuffed, Philadelphia Inquirer, Feb. 19,1993, p. B3 (“The prosecution contends she killed Edwards in cold blood because he was leaving [her] to return to his wife in Texas”).
See McMahon, Dad Does Everything Right, But Son Goes Wrong, Chicago Tribune, Mar. 7, 1993, p. 1 (youth who, according to charges, killed victim after saying “he was going to kill him in retaliation for something [the victim] had done” is, “the state reminds, a cold-blooded killer”).
See Gorman, Millionaire Guilty of Killing Ex-Wife, Chicago Tribune, Feb. 3, 1993, p. 1 (“Assistant State’s Atty. Robert Egan portrayed Davis as a ‘manipulative,’ cold-blooded killer .... Egan depicted Davis as a man so filled with hatred that he killed Diane Davis two weeks after an Illinois Appellate Court had ruled ... that he must turn over $1.4 million of his inherited money to his former spouse”).
See Burns, U. N. to Ask NATO to Airdrop Supplies for Bosnians, N. Y. Times, Jan. 12, 1993, p. A10 (shooting of Bosnian Deputy Prime Minister by Serbian soldier was described by State Department spokesman Richard A. Boucher as “cold-blooded” murder).
See Man Gets Life For Double Murder, Toronto Star, Mar. 4, 1993, p. A12 (the prosecution “called it ‘a cold-blooded killing’ spurred by [the defendant’s] ‘humiliation and hate of these people,’ with whom he had squabbled during the 1991 mayoralty campaign”).
See McKay, Koresh “Smiled Defiantly” Before Ambush, Agent Says, Houston Chronicle, Mar. 5, 1993, p. A1 (“‘These people aren’t religious. These people are cold-blooded killers who were shooting at us from every window in that place’ ”).
See Milling, Man Charged in 2 Slayings, Crime Spree, Houston Chronicle, Mar. 5,1993, p. A23 (“ ‘I’d describe him as a psychopath who gets his gratification by hurting other people,’ Carroll said. ‘He’s not your typical serial killer. He just likes to pull the trigger and watch people die.’. . . ‘We knew this guy was a cold-blooded killer,’ Carroll said”).
See Longenecker, Penalizing Convicts, Chicago Tribune, Mar. 4,1993, p. 28 (letter) (“[LJegislation to expand the death penalty to include all convicted murderers is long needed. . . . [I]f an individual commits coldblooded murder he should be removed from our society”).
The line between the “ordinary” and the “legal” meaning 'of coldblooded, however, is not always obvious. On the one hand, judges sometimes casually use the phrase in a variety of senses. In those circumstances, contrary to the majority’s assumptions, the term regularly is applied to crimes committed “with anger, jealousy, revenge, or a variety of other emotions.” See, e. g., McWilliams v. Estelle, 378 F. Supp. 1380, 1383 (SD Tex. 1974) (“It was the theory of the prosecution that the store owner refused to serve petitioner, that he became angry, went to his hotel room, returned with a pistol, and shot the owner in cold blood”), appeal dism’d, 507 F. 2d 1278 (CA5 1975); People v. Sullivan, 183 Ill. App. 3d 175, 180, 538 N. E. 2d 1376, 1380 (1989) (the defendant “exhibited repeatedly a very jealous, violent nature.... The trial court concluded that if the situation were to arise again, defendant in all probability would kill in cold blood again”); People v. Yates, 65 Ill. App. 3d 319, 325, 382 N. E. 2d 505, 610 (1978) (“This record reveals a concerted, deliberate attack by Shirley and Emma Yates against them victim, motivated ... by cold-blooded revenge”). On the other hand, in ordinary parlance the term “cold-blooded” sometimes is used to mean “premeditated.” See, e. g., Reward Offered in Slaying of 2 Women in Shadow Park, Los Angeles Times, Jan. 21, 1993, p. J2 (quoting mayor’s statement: “‘This was one of those in-cold-blood killings, not just a drive-by or random shooting. It was premeditated’ ”).
The State suggests in its brief that on one occasion the Idaho Supreme Court found that the evidence did not support an utter disregard finding. Brief for Petitioner 27, citing State v. Charboneau, 116 Idaho 129, 774 P. 2d 299 (1989). It is not at all clear, however, that that is what occurred in Charbaneau. The court there vacated a sentence because it was “unclear from the [trial court’s] Findings whether the trial court would have imposed the death penalty without having [mistakenly] concluded that [the victim] was not mortally wounded until the second volley of shots was fired.” Id., at 151, 774 P. 2d, at 321. There is no mention in this part of the opinion of the “utter disregard” factor, nor any suggestion that the erroneous finding tainted the “utter disregard” factor rather than the “heinous, atrocious, and cruel” circumstance that was at issue in that case.
I note that much of the majority’s discussion of the “facts underlying this case” centers on Creech’s other crimes — which obviously do not bear on whether “[b]y the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life” — and on the argument, repeatedly rejected by the state courts, that Creech engineered the fight with Jensen in order to create a pretext for killing him. The Idaho Supreme Court explicitly noted that the trial court did not “find that the murder had been performed on contract or by plan.” State v. Creech, 105 Idaho 362, 364, 670 P. 2d 463, 465 (1983), cert. denied, 465 U. S. 1051 (1984). In fact, the trial court not only found that Jensen’s attack was “unprovoked,” but it went further and found that the unprovoked nature of the attack actually constituted a mitigating factor. See App. 52.
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