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04/16/92 STATE DELAWARE v. JAMES ALLEN RED DOG

SUPERIOR COURT OF DELAWARE, NEW CASTLE


April 16, 1992

STATE OF DELAWARE
v.
JAMES ALLEN RED DOG, DEFENDANT.

Barron

The opinion of the court was delivered by: Barron

FINDINGS AFTER PENALTY HEARING

BARRON, Judge

On February 20, 1991, the Grand Jury, sitting in and for New Castle County, returned an indictment against James Allen Red Dog, charging him with having committed the offenses of Murder in the First Degree, *fn1 Unlawful Sexual Intercourse in the First Degree (4 counts), Kidnapping in the First Degree and Possession of a Deadly Weapon During the Commission of a Felony (3 counts). On March 12, 1992, the defendant entered pleas of nolo contendere to all counts of the indictment. Pursuant to 11 Del.C., § 4209(b), a penalty hearing was held commencing March 30, 1992 and ending April 15, 1992, to determine the sentence to be imposed with regard to the charge of Murder in the First Degree. The Court sat without a jury, the defendant having knowingly, intelligently and voluntarily waived his right to a penalty hearing jury on March 12, 1992, the day he entered his no contest pleas.

In this capital murder penalty hearing, the State has relied upon the existence of the following statutory aggravating circumstance:

The defendant was previously convicted of another murder or manslaughter or of a felony involving the use of, or threat of, force or violence upon another person. 11 Del.C., § 4209(e) (i).

The defendant was notified of this reliance prior to the hearing as well as the numerous non-statutory aggravating circumstances the State is alleging have application to this case.

Likewise, the defense notified the State prior to the hearing of the mitigating circumstances the defendant is alleging have application to this case. 11 Del.C., § 4209(c). Testimony having been taken, evidence having been introduced and arguments having been offered as to the appropriate penalty to be imposed, the Court's sentencing determination is now ripe for decision.

Delaware's death penalty statute, 11 Del.C., § 4209, established a 2-step analysis which the Court must undertake in order to make a determination of the proper sentence. Subsection 4209(d) states, in pertinent part, as follows:

(d) Determination of Sentence. (1) A sentence of death shall be imposed . . . if the Court finds:

a. Beyond a reasonable doubt at least 1 statutory aggravating circumstance; and

b. By a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, that the aggravating circumstances found by the Court to exist outweigh the mitigating circumstances found by the Court to exist.

(2) Otherwise, the Court shall impose a sentence of imprisonment for the remainder of the defendant's natural life without benefit of probation or parole or any other reduction.

11 Del.C., § 4209(d).

Under Delaware's statutory scheme then, the Court must first determine whether a statutory aggravating circumstance exists and such finding must be made beyond a reasonable doubt. If the Court finds none, the inquiry is at an end and a natural life sentence must thereafter be imposed. If the Court determines the existence of at least one statutory aggravating circumstance beyond a reasonable doubt, then the Court must engage in the weighing process as envisioned by § 4209(d) (1) b.

In light of the above, the Court will first determine whether or not the State has proved the existence of at least one statutory aggravating circumstance beyond a reasonable doubt.

I. STATUTORY AGGRAVATING CIRCUMSTANCES

A. The State has established to the Court's satisfaction beyond a reasonable doubt that the defendant was convicted of robbery, a felony, which involved the use of, or threat of, force or violence upon another person. This robbery occurred in Wolf Point, Montana on October 4, 1973.

B. The State has established to the Court's satisfaction beyond a reasonable doubt that the defendant was convicted of 2 counts of murder. These murders occurred in Cudahy, California on August 10, 1977.

The Court having concluded that there exists at least one statutory aggravating circumstance which the State has proved beyond a reasonable doubt, the Court will now consider non-statutory aggravating and mitigating circumstances.

II. NON-STATUTORY AGGRAVATING CIRCUMSTANCES

The Court finds that sufficient and substantial reliable evidence exists supportive of the following non-statutory aggravating circumstances which bear upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender.

A. The particular circumstances and details surrounding the death of Hugh Pennington.

Hours before the death of Hugh Pennington, the following conversation between the defendant and Debra Adams occurred while at the Millsboro bowling alley in the early evening of February 9, 1991:

Red Dog: Can you live with what I do?

Debra Adams: What's that?

Red Dog: Terminator.

Debra Adams: Exterminator?

Red Dog: No. Terminator. The Enforcer.

Debra Adams: The Enforcer?

Red Dog: I hurt people.

This was not a crime of passion where jealousy may have offered some small degree of extenuation; nor was it was case where a claim of self-defense would have been even remotely supportable. Rather, the evidence showed that the murder of Hugh Pennington, a 30 year old male, was senseless, cold, deliberate and wholly conscienceless. The defendant tightly bound the victim's wrists with duct tape and his ankles with electrical wire and duct tape, rendering him totally helpless and defenseless before slitting his throat with a knife almost to the point of decapitation. *fn2 This grisly execution-style intentional murder was chillingly callous and cold-blooded. At the time of his death, the victim was made to lay on his back, his arms bound behind him, on the cold floor of his basement, clad only in pajama bottoms. The massive wound inflicted upon him caused, at the instant of his death, his blood to rush from his body, collecting in a pool above his head. The defendant left bloody footprint and fingerprint evidence at the scene which, along with a plethora of other substantial evidence, pointed conclusively to his guilt.

The defendant left the victim and drove to his house where Ailsa Pennington, the victim's mother, was visiting with the defendant's wife, Bonnie Red Dog. Claiming that he had to meet some friends nearby, the defendant accepted a ride from Ailsa who was on her way home. On the way out, the defendant picked up a length of clothesline. After leaving the Red Dog residence, the defendant told Mrs. Pennington that he really didn't want to meet anyone; rather, he wanted to talk about Lithium. Lithium had been prescribed for Hugh Pennington, on account of depression, and the defendant had asked Mr. Pennington for some. Mr. Pennington, according to Red Dog, had said "Ask my mom." When Red Dog told Mrs. Pennington that Hugh was watching television, she had the distinct impression that the defendant had been to her residence. She drove home with the defendant.

Once there, Mrs. Pennington sat down on a chair in the living room, realizing that her son was not awake and believing him to be asleep in his bed. The defendant who had been in the kitchen getting a glass of water returned to the living room carrying the rope and his knife. Suddenly, the defendant straddled her and told her that he wanted her. He took her upstairs to her bedroom, still carrying the rope which he had retrieved while exiting his home. Cutting strips of that rope with the knife he was carrying, he bound her to her own double bed and there raped her at knife point repeatedly, while, unknown to her, her son lay dead two floors below. When morning came, he compelled her to accompany him on his escape to Sussex County where he raped her again. His odyssey of death and ravagement ended only when Mrs. Pennington found a sure opportunity to flee from her forced captivity.

This propensity for violence on the part of the defendant was but the latest chapter in a series of incidents marked by a senseless indifference to human life.

B. The particular circumstances and details of the robbery and murder of William Veseth in Wolf Point, Montana in 1973. *fn3

William C. Veseth was shot and killed during the early morning hours of October 4, 1973. He was killed during the commission of an armed robbery at his place of business, Bill's Pizza Palace, in Wolf Point, Montana.

The defendant, then 18 years of age, Steven Wayne Lilley, a 17 year old juvenile, and Ralph James Clancy, a 25 year old, all had been drinking during at least the evening of October 3, 1973. They ended up at the residence of Bonnie Comes Last (Margaret Lindsey) where more drinking occurred. *fn4 While at the Comes Last residence, the defendant and Lilley engaged in a conversation in which they discussed going over to the Coast To Coast Hardware Store and breaking in to obtain weapons. There, they felt that they could hold off the authorities for quite a while, and, perhaps, Means and Banks of the American Indian Movement (AIM) would come to join them or rescue them. *fn5

After running out of beer, they decided instead to go to Bill's Pizza Palace for more beer. Each was armed with a weapon. The defendant drove. Once there, the defendant and Lilley approached the back door while Clancy remained in the car. Veseth answered the door and, after a request for beer was made, asked for identification. He tried to close the back door after telling them that he was closed for business. A shot was fired from a .22 calibre rifle. *fn6 Veseth stumbled backward and retreated to the basement. *fn7 The defendant entered the pizza parlor and told two waitresses to lie on the floor. He possessed a rifle and pointed it at Cynthia Thompson, one of the waitresses, who brushed the barrel aside. After telling the girls that "He's crazy. He's going to kill all of us", referring, apparently, to Lilley, the defendant demanded beer. Nora Walton provided him with several six packs which he took from the building and placed in the car.

The defendant drove the others east on Highway 2 out of Wolf Point and then turned north on Highway 13 and headed toward Scobey, Montana and the Canadian border. Clancy threw the guns and beer from the car as they made their way northbound. When it was determined that the Canadian border crossing was closed, they returned south eventually making their way back to Wolf Point or its environs.

All three were arrested. Lilley and Red Dog were indicted together, but their trials were severed. The indictment stated as follows:

THE GRAND JURY CHARGES:

COUNT I

That on or about the 4th day of October, 1973, at Wolf Point, in the State and District of Montana, and within the exterior boundaries of the Fort Peck Indian Reservation, being Indian Country, STEVEN WAYNE LILLEY and JAMES ALLEN RED DOG, Indian persons, by force and violence and against resistance, unlawfully and wilfully did take from the person and presence of William Carl Veseth a thing of value, that is, beer, property of the said William Carl Veseth, in violation of Title 18, U.S.C., Section 2111.

COUNT II

That on or about the 4th day of October, 1973, at Wolf Point, in the State and District of Montana, and within the exterior boundaries of the Fort Peck Indian Reservation, being Indian Country, the above-named defendants, STEVEN WAYNE LILLEY and JAMES ALLEN RED DOG, Indian persons, did unlawfully kill one William Carl Veseth, a human being, committed in the perpetration of a robbery, by shooting him with a rifle, in violation of Title 18, U.S.C., Sections 1153 and 1111.

Trial was held before the United States District Court, District of Montana. Lilley went to trial on or about December 3, 1973, and was found guilty by a jury of Murder in the First Degree. He received a life sentence. The defendant went to trial on or about December 10, 1973. On December 12, 1973, a jury found him guilty of Involuntary Manslaughter as a lesser-included offense of Count II and Robbery as reflected in Count I. The trial Judge determined that the Involuntary Manslaughter verdict was inconsistent with the Court's instructions and therefore dismissed that charge, leaving the defendant with the robbery conviction only, for which he received imprisonment for a term of fifteen years. *fn8

Thereafter, the Ninth Circuit Court of Appeals reversed the Lilley murder conviction and remanded the case for a new trial. At the retrial, the defendant testified, contrary to his prior Grand Jury testimony, that he, Red Dog, was the individual responsible for shooting Veseth and that he had lied in previous Grand Jury testimony. A jury acquitted Lilley and he was released.

As a result of the United States v. Lilley retrial testimony, the defendant was indicted along with Lilley and Clancy on a seven count indictment charging, inter alia, Conspiracy and Making a False Material Declaration. The defendant pleaded guilty on September 3, 1975 in the United States District Court for the District of Montana to Making a False Material Declaration. He was sentenced to serve a term of three years incarceration to run consecutive with the fifteen years he was given for the robbery of William Veseth.

C. The particular circumstances and details of the murders of Stanley Large and Moses John which occurred in Cudahy, California in 1977 as well as the kidnapping and rape of Levi Aragon.

Levi Aragon and his first cousin, Stanley "Thumper" Large, went to a bar in or around Hollywood, California called the Moulin Rouge on the evening of August 9, 1977. It was Levi's first visit to the bar which mostly catered to American Indians. *fn9 Mr. Large had been there on prior occasions and knew Mary Cadman, who Large identified to Aragon as the owner (she was actually the manager), as well as her friend, Jackie Mason, a barmaid, both of whom were there that night. Mr. Large played pool with two strangers, both dressed identically. These two American Indians were later identified as James Allen Red Dog and Raymond Allen Tapaha, both of whom had escaped from the Lompoc Federal Correctional Institution on August 6, 1977. Mr. Aragon was talking with one Moses John, an Alaskan Indian, at the bar. When the bar closed at 2 AM, Mr. Aragon ascertained from Mr. Large that he, Mr. Large, had invited the two strangers to spend the night at his Cudahy, California apartment, located at 5210-1/2 Live Oak Street. The females, Cadman and Mason, were also invited to party with them at the Large apartment as was Moses John. The five males traveled together to the Large apartment, Mr. Large driving Levi Aragon's new 1977 Monte Carlo. The females drove separately. A third female, Shirley Ponola, had joined Cadman and Mason.

At the apartment, those present drank alcoholic beverages (mostly beer) and some, including the defendant and Tapaha, smoked marijuana laced with angel dust. *fn10 Moses John was apparently intoxicated and passed out on one of two couches in the living room. The women left at approximately 4 to 4:30 AM. Stanley Large fell asleep, while still sitting up on the other couch in the living room.

Mr. Aragon had arranged for their two visitors, Red Dog and Tapaha, to sleep on his bed in the southern most bedroom. The overnight guests wondered off in the direction of said bedroom. After watching television for 15 or 20 minutes, Levi Aragon went to check up on his guests. They were not in his bedroom. At the southern end of the bedroom there is a door which leads out to a carport on which was parked Aragon's Monte Carlo. Off the carport and separated from the apartment was a small building containing a spare bedroom. When Aragon checked that room, his night of horror began. *fn11

Raymond Tapaha stuck a knife against Aragon and ordered him to remove his clothes. Red Dog, in the meantime, had gone back into the apartment aware of Tapaha's actions. Each was armed with a knife. Tapaha made Aragon lie naked and face down on the bed in the spare bedroom and proceeded to rape him anally. Following this act of debasement, Tapaha made Aragon, who was still naked, go back into the apartment with him.

Inside, Red Dog repeatedly asked Aragon for the keys of Aragon's Monte Carlo. Aragon told him he didn't have the keys. (Stanley Large had driven the Monte Carlo home.) The defendant said, "I'll ask you one more time, where are your keys?" When Aragon again demurred, the defendant, who was armed with a knife and was standing in front of Mr. Large, stabbed Stanley Large in the chest. Red Dog pulled Large off the couch and on to the floor. Large was moaning and saying, "Wait. Stop."

The defendant stated to Tapaha that Large needed to be tied up. Tapaha cut the telephone cord, and Red Dog, after ordering Aragon to do the tying and then finding Aragon's attempts at compliance to be deficient, bound Large's hands behind his back with the cord. The defendant then approached Moses John on the other couch and retrieved John's wallet from his pants pocket. John's watch was also removed. *fn12 The defendant started searching the apartment for 8-track tapes. *fn13

Tapaha made Aragon accompany him to the middle bedroom which is just south of the living room. On the way, Aragon saw Red Dog stab Moses John in the side. Once in the bedroom, Tapaha forced Aragon to endure another round of anal intercourse, after which Aragon was made to perform fellatio upon Tapaha.

Thereafter, Tapaha made Aragon put on his pants. Tapaha and Red Dog took Aragon out to the Monte Carlo. At this point, the keys had been retrieved. Aragon got in the back seat with Tapaha. Red Dog returned to the apartment saying, "I'm going to make sure they're dead." *fn14

The defendant returned to the car and drove to Las Vegas, Tapaha and Aragon seated in the back seat. While in route, Tapaha made Aragon perform fellatio upon him two more times. Also, during the trip, Aragon learned from Red Dog that he had been in prison "for killing a guy."

After several hours in Las Vegas, Aragon finally found an opportunity to escape when both Red Dog and Tapaha had fallen asleep. *fn15 Based upon Aragon's statements to the police, both Tapaha and Red Dog were arrested and charged with murder. *fn16 On April 10, 1978, in the Superior Court of the State of California for the County of Los Angeles, the defendant pleaded guilty to the following two counts of second degree murder: Count I alleged that "on or about the 10th day of August, 1977, at and in the County of Los Angeles, State of California, James Allen Red Dog did willfully, unlawfully and feloniously with malice aforethought murder Moses Alex John, a human being." Count II alleged that at the same time and place, "James Allen Red Dog did willfully, unlawfully and feloniously with malice aforethought murder Stanley Large, Jr., a human being."

On May 8, 1978, the defendant was sentenced to serve 9 years of incarceration with 270 days of credit for time served for the murders of Stanley Large and Moses John, time to be served concurrently with his federal sentence. *fn17

D. The particular circumstances and details of the murder of Joseph Ortega which occurred in Marion, Illinois in 1983.

During his confinement at the Marion Federal Penitentiary, a maximum security facility located in Marion, Illinois, the defendant was involved in the death of one Joseph Ortega who died from an overdose of heroin on February 23, 1983.

Ortega had been a member of the Mexican Mafia (EME), a prison gang involved at Marion in narcotics, assaults, extortion and gambling. The defendant was associated with this prison gang. In fact, he admitted to having been a "mule" or conduit for the smuggling of drugs into the prison at the request of the EME.

Red Dog apparently had a problem with Ortega at some date prior to his death when Ortega had stolen an item belonging to Red Dog. The Mexican Mafia characterized Ortega as a "locker thief" who had become an embarrassment to EME. Red Dog suggested to members of EME that Ortega be given a "hot shot", or, in other words, a lethal dose of heroin. EME had come to the same Conclusion. The "hot shot" was delivered to Red Dog through a prison visitor. He knew it was the package (actually, a balloon) by its distinctive color, lime green. He "keistered" the balloon, *fn18 and it later found its way to members of EME.

After Ortega's death, the defendant apparently started to fear for his own safety and, thus, decided to talk with the federal authorities. In part because of the information he provided, certain members of the Mexican Mafia who were in Ortega's cell when the lethal dose was administered were indicted in connection with Ortega's death. There were, however, no convictions.

While it is clear that the defendant played no direct role in Ortega's death, he did provide the means by which the murder was carried out.

E. The particular circumstances and details surrounding the defendant's 1986 Possession of a Firearm arrest and conviction.

Dale Doornek was on duty at the "Get 'N Go", a gas station/convenience store located on Highway 2 approximately a quarter of a mile east of Bill's Pizza Palace in Wolf Point, Montana. It was June 3, 1986. *fn19 He observed the defendant and a female customer purchasing hot dogs and other food items. He noticed what appeared to be a bulge underneath the defendant's jacket in the left shoulder area. Doornek suspected that the defendant had shoplifted an item of merchandise. He approached the defendant and asked him if he could see what was under the jacket. The defendant took his left hand and opened the jacket, partially revealing a handgun in a make-shift shoulder holster. With his right hand he made a gesture as if to reach for the gun and stated, "Do you really want to see it?"

Doornek, feeling threatened and intimidated by the defendant's actions as well as by the cold stare given to him by the defendant, backed off and returned to his position behind the counter. The defendant and his female companion left the store and Doornek noticed them get in a silver Nova with license plate number VAUGHN.

Officer William Buzzell of the Roosevelt County Sheriff's Office stopped by the store about 7:30 to 8:00 PM. Doornek told him what had happened. Concerned, Officer Buzzell left in search of the silver Nova, making contact with same at the residence of defendant's cousin.

The defendant was behind the wheel of the parked vehicle with 2 or 3 other persons inside. Buzzell approached the vehicle and observed a bulge in the defendant's left shoulder area. After receiving a very intimidating stare from the defendant and detecting an odor of alcohol, he asked the defendant, whom he did not know, to step from the vehicle. Instead, the defendant reached for his concealed weapon. Buzzell drew his service revolver and ordered Red Dog not to move his hands. Buzzell thought he was going to be shot.

The defendant, faced with Buzzell's weapon, became compliant and exited the vehicle. He was arrested and handcuffed. The weapon, a .22 calibre Ruger semi-automatic pistol, and shoulder holster were seized. The officer noted that the safety of the pistol was off, one round was already chambered and seven rounds were in the magazine. The holster was homemade, fashioned out of what looked like duct tape.

An indictment was returned against the defendant in the United States District Court for the District of Montana for Possession of a Firearm. On July 10, 1986, the defendant pleaded guilty to the charge and received a two year sentence of incarceration.

F. The defendant's involvement in illegal activities as a prisoner within the federal prison system.

At the Lompoc Federal Correctional Institution, Red Dog was written up on April 10, 1975 when a shank was found under the mattress of his cell. He denied involvement. ("I don't know a thing about any sharpened knife.")

On August 19, 1979, at Lompoc, Red Dog refused to return to general population after having been placed in segregation. The defendant stated that he would stab someone if returned to general population. The Discipline Committee recommended that the defendant be transferred to another federal facility. Prior to his transfer to the United States Penitentiary at Leavenworth, Kansas, Red Dog was housed in A-Block under the following conditions: "RED DOG, James Allan (sic) - Holdover enroute to USP Leavenworth. Assaultive and violent toward staff and inmates. Is in a feud with inmate HAWK 14753 who is housed in A-Block and inmate HAWK has vowed to get inmate RED DOG. He must be celled in a single cell, showered and exercised alone, and three (3) officers must be present whenever his cell door is opened." The January 12, 1979 memorandum quoted above advised the use of extreme caution in the handling of, among others, inmate Red Dog. Later, in deposition testimony, the defendant explained the reason for his administrative transfer from Lompoc to Leavenworth as follows:". . . I had too much pull within the institution. I controlled too much of the guards, drugs, prostitution. I had too much influence with the gangs."

Red Dog was transferred to Leavenworth and on December 10, 1979, was transferred again, this time to the United States Penitentiary at Marion, Illinois. This was a disciplinary transfer caused by Red Dog's alleged introduction of contraband (drugs) into Leavenworth. Marion was the only maximum security facility within the federal prison system. Red Dog enjoyed it. In his deposition taken in connection with the case of Bruscino, et al. v. Carlson, et al. filed in the United States District Court for the Southern District of Illinois, Red Dog explained, "You didn't have to work. . . . You had a lot of free time. Like I said, there was a lot of drugs and . . . a lot of gambling, stuff like that, that you could get into. It was the best time possible. . . ." Later in the deposition, he reiterated that "There was a lot of money to be made, a lot of drugs."

He admitted to being a bookkeeper for a member of the Mexican Mafia and that he brought in drugs for them. He also kept books for a member of the Aryan Brotherhood. He admitted to being personally involved with extortion.

With regard to weapons, Red Dog boasted, ". . . I brought in some twenty-two's and some thirty-eight shells. There was a lot of zip guns around. I made six of them, and there was a lot of shanks floating around." With regard to drugs, Red Dog admitted introducing into the prison "everything from heroin to barbiturates to amphetamines, grass."

In brief, the evidence supports a finding that the defendant was the antithesis of the model prisoner with a bent for rehabilitation. Prison walls have not suppressed his criminal inclinations.

G. The defendant's record while in the military.

The defendant joined the United States Marine Corp on February 8, 1972 for a term of four years. His military career lasted for just over 18 months. He was absent without leave (AWOL) from June 7, 1972 until August 21, 1972 and again from November 1, 1972 to March 21, 1973. The Staff Judge Advocate recommended to the Commanding Officer of the Camp Pendleton Marine Corp Base in California that, as a result of the defendant's record, he be separated from the Marine Corp with an undesirable discharge for the good of the service. The recommendation was adopted and the defendant received a discharge under other than honorable conditions. *fn20 He was mustered out on or about August 17, 1973. Approximately 6 weeks later, Red Dog drove Steve Lilley and Ralph Clancy down to Bill's Pizza Palace to get some more beer.

H. The defendant's criminal history record.

James Allen Red Dog's criminal history spans 2 decades. It is appropriate to summarize his felony convictions which include the following:

1. Robbery, Wolf Point, Montana, October 4, 1973. Sentenced on December 17, 1973 to 15 years of incarceration.

2. Making a False Material Declaration, Billings, Montana, May 20, 1975. Sentenced on September 4, 1975 to 3 years of incarceration.

3. Escape from a Federal Correctional Facility, Lompoc, California, August 6, 1977. Sentenced on August 23, 1977 to 6 months of incarceration.

4. Murder (2 counts), Cudahy, California, August 10, 1977. *fn21 Sentenced on December 12, 1977 to 9 years of incarceration to be served concurrently with federal sentence.

5. Possession of a Firearm, Wolf Point, Montana, June 3, 1986. Sentenced on or about July 10, 1986 to 2 years of incarceration.

6. Murder in the First Degree, Unlawful Sexual Intercourse in the First Degree (4 counts), Kidnapping in the First Degree and Possession of a Deadly Weapon During the Commission of a Felony (3 counts), Wilmington, Delaware, February 10, 1991 (the instant offenses).

The record set forth above is cited simply to demonstrate the incorrigibility of the defendant. He constitutes a dangerous threat to civilized society.

I. Victim impact.

Sage Pennington Taylor, sister of the late Hugh Pennington, testified as to the emotional trauma which his death has caused her. Such evidence is admissible in a penalty hearing because it does not violate the Eighth Amendment of the United States Constitution. Payne v. Tennessee, U.S. , 111 S.Ct. 2597 (1991). The Payne Court found that there is nothing unfair in allowing the factfinder to bear in mind the harm caused by the victim's death as an aggravating circumstance at the same time that it considers the mitigating evidence introduced by the defendant. Id. at 2608-09.

The Delaware Supreme Court has concluded that under Delaware's death penalty statute, there is no reason to treat victim impact evidence any differently than other relevant evidence is treated, and that the Delaware capital punishment statute requires the merits of admitting such evidence to be considered by the Superior Court. See Petition of State of Del., Del.Supr., 597 A.2d 1 (1991).

This Court has done so and concludes that such evidence is clearly relevant and does not so infect this proceeding as to render it fundamentally unfair. Payne, 111 S.Ct. at 2612 (O'Conner, J., Concurring). The Court considers this evidence as bearing upon the particular circumstances of the offense of Murder in the First Degree for which the appropriate sentence must be imposed. See 11 Del.C., § 4209(d) (1) (b); See also 11 Del.C., § 4331.

While the Court has considered the testimony of Mrs. Taylor, the Court feels that such evidence must be placed in its proper perspective. Her grief is real and the Court in no way means to diminish the tragic fact of her obvious suffering. Yet any violent criminal act committed against a person will evoke a sorrowful and distressful response by that person's loved ones. In the case of homicide, the trauma suffered by the victim's loved ones is bound to be great. And so it is with Sage Pennington Taylor. She has had to undergo counseling to help her cope with her handling of her brother's death. She has trouble sleeping and misses her brother, with whom she was very close, terribly. While the Court fully appreciates the consequences which the circumstances of Hugh Pennington's death have had on her sister, and considers such testimony as an aggravating factor, the Court will not give undue weight to such testimony.

J. The defendant was on parole status at the time of the Pennington homicide.

The defendant was granted parole by the United States Parole Commission on June 27, 1990. *fn22 At the time of his release on parole, the defendant had a total of 1,454 days remaining to be served; that is, until June 20, 1994. Seven and one-half months after Red Dog was released, Hugh Pennington would be viciously murdered.

III. MITIGATING CIRCUMSTANCES

The Court must consider any relevant evidence in mitigation in determining the appropriateness of a life or death sentence. Throughout the penalty hearing, the Court listened carefully for reliable evidence of any nature which could be fairly characterized as a mitigating circumstance. With the above in mind, the Court concludes that sufficient and substantial reliable evidence exists which support the following mitigating circumstances which bear upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender.

A. Defendant's intoxication prior to and at the time of the murder of Hugh Pennington.

In the afternoon and evening of the Pennington homicide, the defendant ingested an amount of alcohol which caused him to be under the influence. It was at least inferred that he also snorted cocaine while at the Millsboro bowling alley in the early evening of February 9, 1991. I will assume that he did.

The Court accepts the testimony of several witness who testified that the defendant had been drinking for most of the day leading up to the murder of Hugh Pennington which occurred shortly after midnight on February 10, 1991. The exact amount was unclear but the Court accepts that it was a fairly substantial amount. *fn23 Such a factor has been recognized as constituting a mitigating circumstance. See Fead v. State, Fla.Supr., 512 So.2d 176 (1987); Norris v. State, Fla.Supr., 429 So.2d 688 (1983).

Such ingestion, however, did not, in the Court's view, render him unable to exercise control over his mental faculties. The evidence showed that one Odette Wright conversed with the defendant sometime around 8 PM on the evening of February 9, 1991. While she felt he had been drinking, she noticed no weaving or wobbling nor any slurred speech. She felt the defendant was sober enough to drive safely. The evidence showed that he, in fact, did drive his pickup truck thereafter from Millsboro to the Pennington's house in Wilmington where he murdered Hugh Pennington in cold blood. Even after Red Dog returned to his residence with a half bottle of Jim Beam in his hand, Ailsa Pennington was unable to tell whether the defendant had been drinking.

In any event, I find that while the defendant was under the influence of alcohol and/or drugs on the evening of the homicide, *fn24 he was not intoxicated to the point of being unable to exercise control over his mental faculties. *fn25 Nevertheless, I will view his being under the influence of alcohol and/or drugs on the night of the homicide as a mitigating circumstance.

B. The defendant's history of alcohol and/or drug dependence.

According to the January 20, 1991 discharge summary of the Bowling Green Treatment Center, the defendant suffers from alcohol and cocaine dependence. The records offered in evidence substantiate this diagnosis. Substantial evidence of a defendant's long history of alcohol and/or drug abuse has been recognized as a mitigating circumstance which the Court must consider in the weighing process. See Hall v. State, Fla.Supr., 541 So.2d 1125 (1989); Amazon v. State, Fla.Supr., 487 So.2d 8 (1986). I accept the evidence suggestive of Mr. Red Dog's many years of alcohol and drug usage and dependence.

The Court notes that alcohol and/or drugs were involved in not only the instant case but also in the robbery of William Veseth in 1973 and the murders of Stanley Large and Moses John in 1977. *fn26 Further, the defendant had been drinking at the time of his arrest for possessing a firearm in 1986.

Prison didn't thwart the defendant's craving for alcohol. On July 20, 1974, while at the Lompoc Correctional Institution, he was written up for fighting with another inmate. He was, in the words of the investigator, "definitely under the influence of something. When questioned as to what, he stated he had been drinking rubbing alcohol all day to the amount of 3 pitchers full." The investigator concluded, "Red Dog was indeed out of sorts and staggering considerably but was no problem at any time."

On April 10, 1975, again at Lompoc, Red Dog was found in possession of a pitcher full of what appeared to be home brew. His excuse was that, "I was going to have a little party by myself."

On June 25, 1979, Red Dog was again written up for using intoxicants, this time at the United States Penitentiary at Leavenworth, Kansas. Two correctional officers detected "booze" on the defendant's breath. Upon a shakedown, approximately 7 gallons of "booze" were found nearby. It was determined that the defendant was intoxicated.

There is no doubt that the defendant's dependence on alcohol and drugs has. significantly affected him adversely throughout his adult life. I consider and accept this as a mitigating circumstance. *fn27

C. The defendant's personality disorder.

While the evidence was conflicting, the Court accepts the evidence supportive of a Personality Disorder as credible and reliable. *fn28

Dr. Alan M. Seltzer, a Board Certified psychiatrist, in his January 16, 1991 HMO Progress Report made a diagnosis of, inter alia, Antisocial Personality Disorder. Dr. Kutas Tavlan-Dogan, a Board Certified psychiatrist, in her Psychiatric Evaluation Report dated April 30, 1991, made a diagnosis of, inter alia, Personality Disorder with narcissistic and antisocial traits. *fn29

In the defendant's Bowling Green of Brandywine Biopsychosocial History And Assessment dated January 1, 1991, the following verbalizations of the defendant are representative of his antisocial personality: "Thinks about killing cops that will lead to his death. Methodically plotting to kill; always an option to kill a cop to make money."

The defendant's Personality Disorder could well have resulted from the circumstances surrounding his early life. He was raised in relative poverty on the Fort Peck Sioux Indian Reservation in Montana. He has claimed, and the Court accepts, that his father drank heavily and supported his family through gambling and that his mother who also drank heavily helped support the family through prostitution. *fn30 He had 2 half-brothers and 8 sisters and, as such, lacked an identity of his own. He turned to alcohol at a young age.

There is every indication that as he grew older, he became aware of his noble heritage and the circumstances surrounding the emasculation and decimation of a once proud Indian nation. *fn31

The Court acknowledges the deprivations to which the defendant has been exposed and the maladaptive personality traits resulting therefrom which the Court considers as a mitigating circumstance in this case. *fn32

IV. THE WEIGHING PROCESS

Under Delaware law, a sentence of death shall be imposed if the Court finds:

a. Beyond a reasonable doubt at least 1 statutory aggravating circumstance; and

b. By a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, that the aggravating circumstances found by the Court to exist outweigh the mitigating circumstances found by the Court to exist.

11 Del.C., § 4209(d) (1).

The weighing process is, of course, contingent upon the Court's finding of at least 1 statutory aggravating factor beyond a reasonable doubt. Here, since such a finding has been rendered, the Court now undertakes the second prong of the equation, mindful that:

The procedure to be followed by the trial Judges . . . is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present.

Delaware v. Cohen, et al., Del.Supr., A.2d , No. 412, 1991 (decided Feb. 14, 1992) (citing State v. Dixon, Fla.Supr., 283 So.2d 1, 10 (1973)).

Moreover, the weighing of aggravating and mitigating circumstances involves a "qualitative" rather than a "quantitative" approach so as to ascertain the appropriate punishment. Commonwealth v. Holland, Pa.Supr., 543 A.2d 1068 (1988).

When so viewing the totality of the circumstances present in this case and the quality of the evidence supportive of same, the Court concludes that the aggravating circumstances which this Court has found to exist clearly outweigh the mitigating circumstances which this Court has also found to exist. *fn33

James A. Red Dog has traversed an often gruesome trail of violence for his entire adult life. He was involved in the murder of four other persons prior to the death of Hugh Pennington. Even while incarcerated, his criminal pursuits have gone unabated. His propensities for violence span two decades.

I can discern not a spark of redemption which might release the defendant from his sordid and destructive nature. The evidence of the defendant's violent past is a predictive indicator of what his future holds, even if separated from decent society.

With solemn recognition that "death as a punishment is unique in its severity and irrevocability," Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) (Stevens, J., Concurring), the Court nonetheless concludes that the death penalty is eminently justified under the circumstances of this case. *fn34 James Allen Red Dog has forfeited his right to life; surely, his life is no more sacred than that of his innocent 30 year old victim, Hugh Pennington.

V. Conclusion

The Court concludes that as to Count I of the indictment, the sentence shall be death by lethal injection.

It Is So ORDERED.

Sentencing Order to Follow.

NORMAN A. BARRON, Judge

DEATH SENTENCE

AS TO IN91-02-1495:

In accordance with the laws of the State of Delaware as enacted by the General Assembly, it is the sentence of the Court that you shall be kept in the custody of the Department of Correction until Friday, the 17th of July, 1992, and on that date, between the hours of 10:00 in the forenoon and 12:30 in the afternoon, shall be taken to some convenient place of private execution within the prison enclosure of the Delaware Correctional Center and then and there, in the presence of ten witnesses summoned for that purpose, be injected intravenously with a substance or substances in a lethal quantity sufficient to cause death until you are dead, such procedure to be determined and supervised by the Commissioner of the Department of Correction.

You are hereby committed to the custody of the Department of Correction for the purpose of carrying out this sentence.

NORMAN A. BARRON, Judge

Date: April 16, 1992


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