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

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 ...


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