IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY STATE OF DELAWARE, ) ) IK v. ) Murder in the First Degree ) JUAN J. ORTIZ, ) () ) ) Defendant. ) FINDINGS AFTER PENALTY HEARING Penalty Hearing Concluded: August 15, 2003 Decided: APPEARANCES Stephen J. Welch, Jr., Esq. and James J. Kriner, Esq., Deputy Attorney Generals, Dover, Delaware. Attorneys for the State. Lloyd A. Schmid, Jr., Esq. and Deborah L. Carey, Esq., Public Defenders. Attorneys for the defendant. VAUGHN, Resident Judge

2 BACKGROUND On August 5, 2003 the defendant, Juan J. Ortiz, was convicted by a jury of murder in the first degree, possession of a firearm during the commission of a felony, and arson in the second degree. In accordance with statute, the State then gave written notice of the aggravating circumstances upon which it intended to introduce evidence at the penalty hearing, and the defendant gave written notice of the mitigating circumstances upon which he intended to introduce evidence. follows: The aggravating circumstances of which the State gave written notice are as Statutory aggravating circumstances pursuant to 11 Del. C. 4209(e)(i) & (u): The defendant was previously convicted of... a felony involving the use of, or threat of, force or violence upon another person. The murder was premeditated and the result of substantial planning. Non-statutory aggravating factors: The victim was defenseless when she was murdered. The murder of Deborah Clay has had an adverse impact upon her family. The defendant s attempt to destroy evidence of the murder resulted in the destruction of personal property belonging to the victim and her family, and caused the 2

3 as follows: death of the family dog. The defendant was in the custody of the Department of Correction at the time of the murder. The defendant has a prior history of arrests and convictions for criminal offenses, and of violations of probation. The defendant has a history of assaultive behavior. The defendant has previously been convicted of unlawful sexual contact and is a registered sex offender. The defendant has a history of disciplinary problems and infractions in prison. The defendant has demonstrated a propensity to escape from the custody of the Department of Correction. The defendant is potentially dangerous in the future. The mitigating circumstances of which the defendant gave written notice are 1. Defendant has remorse for the death of Debbie Clay and the pain caused to her family and loved ones, including Ashley and Brock, whom he also loved. Juan Ortiz has experienced grief and a sense of loss after her death, as one would with the loss of a close loved one. 2. Defendant is remorseful for his wrongful conduct as evidenced by his voluntary statements to the police and 3

4 the testimony of such witnesses as Janet Daniels, Edwin Kuhns and Mary Favata. 3. Defendant's conduct in this situation was committed while he was under the influence of extreme emotions. The emotional turmoil included the threatened breakoff of his engagement and Debbie's rejection of him. 4. Defendant has separation anxiety/abandonment issues to be further explained by Dr. Abe Mensch. Juan Ortiz also has an emotional dependence on women as well as long-standing trust issues due to childhood and adult experiences. 5. Juan Ortiz wrote a letter to Judge Terry in November of 1998 worried over how his mental and emotional problems could hurt his family and asking for appropriate treatment to be ordered. 6. In July of 1999, Judge Goldstein ordered that Defendant, Juan Ortiz, be evaluated for emotional and/or psychological problems and follow any directions for treatment or counseling made by the Probation Officer. While in prison, Defendant did receive counseling and was on medication for mental health issues. But upon his release neither mental health or emotional counseling nor medication was continued or directed despite Probation & Parole knowing same was ordered and their responsibility for supervising it. 7. Upon re-incarceration, Defendant was diagnosed again with a need for medication to be further explained by 4

5 the testimony of Dr. Kho. 8. The nature and extent of Defendant's life history from childhood to adulthood. This includes but is not limited to the following: a. The dysfunctional nature of Defendant's family while a child. b. As an infant, Juan Ortiz suffered a life threatening condition that affected how he was subsequently treated. c. Defendant was a witness to domestic violence as a child, and thereby victimized. d. Defendant lacked appropriate role models as a child. e. Defendant had an alcoholic father. f. Defendant was physically abused as a child by his father. g. Defendant lived in various places with various persons at various times, due to his family's financial difficulties. The frequent moves and separation from family members affected his emotional development. h. Defendant's family suffered severe financial instability causing them to live at times in a small mobile home without necessary repairs being made. i. Defendant lived in unsafe environments such as Philadelphia, PA, where his father was shot in his chest but recovered after hospitalization. j. Defendant's parental employment instability. k. Defendant's parental power struggles causing 5

6 ineffective parenting practices. l. Juan Ortiz suffered from obesity as a child and was teased by peers. m. Defendant attempted suicide a number of different times, the first time at approximately age 10, requiring hospitalization as a result of taking an overdose of his mother's pills due to his depression. n. Defendant's parental infidelities. o. Defendant faced discrimination in the neighborhoods and schools. p. Defendant being sexually abused by older women, friends and/or lovers of his parents, including fathering a child when he himself was a minor with a woman many years his senior, double his age. q. Some of Defendant's siblings are or have been incarcerated at various times in their lives. These siblings are older than Juan, as he is the second to the youngest child in the Ortiz/Ball family and the youngest son. r. Defendant has a past history of cocaine, alcohol and other drug use. s. Defendant was diagnosed with ADHD as a child by several mental health professionals. He has experienced poor impulse control. t. Defendant never learned appropriate ways to handle conflict, stress or decision making and problem solving. u. Juan Ortiz requested help and was concerned about his behavior even as a child. v. Defendant's mother stopped his childhood medication which was helping him per the 6

7 mental health professionals. Such medication may have enabled him to learn appropriate behaviors. Mother fostered a tendency to blame others for his behavior so he never learned to take responsibility for what he does. w. Defendant's mother took Juan out of treatment against medical advice to move to Florida. This treatment, which mother disagreed with, may have been beneficial to him. x. Defendant's mother later abandoned him as an adolescent and then had little contact with him for many subsequent years. 9. Defendant has problems which can be addressed by incarceration, including the following: a. Poor problem solving skills. b. Impairments resulting from drug use that impacts judgment. c. Anger control counseling and medication. d. Defendant is capable of learning and improving. 10. Defendant has family members, immediate and extended, whom he loves and who love him. Defendant has children whom he loves and who love him. 11. Defendant has friends and acquaintances from the community who would write, phone and visit him, if incarcerated for life. 12. Defendant has performed prior good deeds and 7

8 acts and is known or helping others and has positive personality traits such as being kind to family, neighbors, associates and friends. 13. Defendant learned job skills such as construction, carpentry and mechanics. He was good at these skills and loved doing such work as was evidenced by letters entered into evidence from Deborah Clay. Juan Ortiz could teach other inmates these skills while he is incarcerated. 14. Defendant did not attend church so he was unable to benefit from any of the lessons he might have learned there. There was no other moral compass present in his life so the teaching he received as a youth only provided a vague sense of right and wrong. 15. The defendant is a member of a family, immediate and extended, whose members would continue to write, phone and visit defendant if incarcerated for the remainder of his life. 16. Defendant has been helpful in prison, even helping to create a form used by the institution in the Pre- Trial Unit. He has also held various jobs there. His intellectual abilities afford him the potential to be a productive member of society even while in prison. 17. Defendant cooperated with the police as was indicated by testimony of the various officers and his various Mirandized and voluntary statements. 18. Defendant has the ability to adjust to the 8

9 prison environment upon completion of this proceeding. 19. Defendant's life is salvageable and there is a potential for treatment versus the death penalty. 20. Defendant's family and loved ones, including his children and friends, would be seriously impacted if Defendant were executed. 21. If Juan Ortiz is executed, it will deepen his family's emotional trauma. His loss of life would not only be significant to them, but also to those who loved him for years prior to July 6, A life sentence, if imposed, will never allow Juan Ortiz to return to society but will allow him to fully reflect upon the offense and death of Deborah Clay, each and everyday, for whatever time remains of his life without the benefit of probation, parole or any other reduction of sentence. The penalty hearing commenced before the same jury on August 7. The evidence and summations, including allocution by the defendant, were completed on August 14, The Court then instructed the jury on the law and provided a Penalty Phase Interrogatory Form for the jury to use in reporting its findings and recommendation. On August 15, 2003, after a little over 10 hours of deliberation, the jury unanimously found that the evidence showed beyond a reasonable doubt the existence of the following statutory aggravating circumstance: that the defendant was 9

10 previously convicted of a felony involving the use of, or threat of, force or violence upon another person. The jury was not unanimous as to the existence of the second alleged statutory aggravating circumstance, that is, premeditation and substantial planning in the commission of the murder. On this question, the jury s vote was 9 for the existence of this statutory aggravating circumstance, and 3 against. Finally, after weighing all relevant evidence in aggravation and mitigation bearing upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, 11 jurors found by a preponderance of the evidence that the aggravating circumstances found to exist outweighed the mitigating circumstances found to exist. One juror found that the aggravating circumstances did not outweigh the mitigating circumstances. Because the jury unanimously concluded that the evidence showed beyond a reasonable doubt the existence of a statutory aggravating circumstance, the defendant is eligible for the death penalty. The law provides that if a jury has found the existence of at least one statutory aggravating circumstance beyond a reasonable doubt, the Court is to consider the findings and recommendation of the jury without hearing or reviewing any additional evidence. A sentence of death shall be imposed if the Court finds 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 10

11 found by the Court to exist. Otherwise, the Court shall impose a sentence of imprisonment for the remainder of the defendant s life without benefit of probation or parole or any other reduction. THE NATURE AND CIRCUMSTANCES OF THE OFFENSE On July 6, 2001, Deborah Clay arrived at her mobile home on Still Pond Circle, near Harrington, sometime around 3:00 p.m. Shortly after she arrived home, she then began taking a shower. After she stepped in the shower, the defendant positioned himself in the hallway facing a common wall between the hallway and the shower stall. He placed pillows, which he had rolled up and bound together with tape, on a washer and dryer which were immediately in front of him as he faced the wall. He then aimed and fired a slug from a 12 gauge shotgun through the pillows and the wall, striking Deborah Clay in the abdomen as she stood in the shower. He then worked the bolt of the shotgun to prepare it for another shot, entered the bathroom or its doorway, and, upon seeing Deborah Clay still alive, fired a second shot into the side of her head, causing her instant death. He then set fire to the mobile home. He did so by lighting a fire at the bed in the bedroom of Ashley Clay, the victim s daughter. He left the shotgun at the place where he set that fire. He set a second fire in the bedroom which he and Deborah Clay had shared, but the fire in Ashley s room ultimately engulfed the mobile home, causing substantial damage. After setting the fires, he fled the scene. As a result of their deteriorating relationship, Deborah Clay told the defendant several days prior to the 6 th that he would have to move out of her mobile home. This 11

12 presented the defendant with a serious problem because he was on house arrest and, due to a sex offense, did not have another residence that could qualify for house arrest. Several months before, the defendant and Deborah Clay had left the 12 gauge shotgun and another gun with a friend for safe keeping. The guns belonged to the victim s son. On Tuesday, July 3, the son informed the defendant that he would like to get the guns back. The defendant retrieved the guns from the friend s house at about 7:00 a.m. on Thursday, July 5 th. Later that same day, the son stopped by the defendant s residence after work, at about 5:00 p.m. and asked about the guns. The defendant told him that he had not yet been able to get up with the friend who had them, thereby clearly implying that he did not have the guns. THE AGGRAVATING CIRCUMSTANCES As mentioned above, the jury gave an answer of 9 yes and 3 no on the question as to whether the evidence showed beyond a reasonable doubt that the murder was premeditated and the result of substantial planning. Therefore, that alleged statutory aggravating factor was not established for purpose of qualifying the defendant for the death penalty. However, it is appropriate to examine that factor to determine whether the evidence supports its consideration as an aggravating factor in the sentencing decision. I find that premeditation and substantial planning were established as an aggravating factor at least by a preponderance of the evidence. The proof of this is in such evidence as the making of the pillow roll, referred to during trial as a homemade silencer, the defendant s untruthfulness to Brock the day before in saying he 12

13 hadn t been able to get up with the friend to get the guns, when in fact he already had them; and the fact that the murder occurred only a few minutes after the victim arrived home that afternoon. factors. I find that the evidence established the following additional aggravating The victim was defenseless when she was murdered. The murder of Deborah Clay had an adverse impact on her family. In his statement to the police, the defendant stated that he set the fire to spare Ashley Clay from finding her mother in the mobile home. I find that he did so, however, in an attempt to destroy evidence of his crime. The destruction of the victim s residence, which was also the residence of Ashley, is a substantial aggravating factor. The defendant was on probation at the time of the murder. This aggravating factor is given greater weight by the fact that he was on house arrest and murdered his house arrest host. This is a substantial aggravating factor. The defendant has an extensive criminal record including felony and misdemeanor convictions and violations of probation. His criminal record establishes a history of assaultive behavior, as evidenced by his three felony convictions for assault in the second degree. He has a fourth felony conviction for unlawful sexual contact in the second degree. His convictions in this case make him an habitual criminal under 11 Del. C This is a substantial aggravating factor. The defendant has a history of violation of prison rules. Many of these are 13

14 minor, but some are significant, such as unauthorized possession of a razor, which could be used as a weapon. The State alleged as an aggravating factor that the defendant has demonstrated a propensity to escape from the custody of the Department of Correction. I am not persuaded by the evidence that this factor has been established as an aggravating factor for sentencing purposes. The final aggravating factor alleged by the State is that the defendant is potentially dangerous in the future. The evidence established that the defendant, if provoked, is subject to intense rage during which he can become dangerous. As mentioned, his criminal history includes a history of assaultive behavior. For these reasons, I find that the defendant is potentially dangerous in the future. THE MITIGATING FACTORS The mitigating factors offered by the defense which directly relate to the particular circumstances or details of the commission of the offense are the defendant s alleged extreme emotion at the time of the offense, including the threatened break off of his relationship with Deborah Clay, and separation anxiety/abandonment issues which include an emotional dependence on women and long-time trust issues due to childhood and adult experiences. The preponderance of the evidence does not support a conclusion that the defendant was acting under extreme emotional distress in any legal sense at the time of the offense. While the defendant was no doubt distressed at being told that he must move out of the mobile home, the crime was planned and calculated. Deborah 14

15 Clay s rejection of the defendant is a mitigating circumstance of little weight. It was her mobile home and she was entirely within her rights to tell him to leave. In addition, while separation abandonment may explain the offense as a phenomenon, I find that it has little weight as a mitigating factor. Of the remaining mitigating factors, there are only two that I find were not established, in part, as mitigating factors by a preponderance of the evidence. One is the allegation that the teaching which the defendant received as a youth only provided a vague sense of right and wrong. This concept was included in the defense s written notice of mitigating factors but was not forcefully presented to the jury as a separate mitigating factor during the hearing. However, to the extent that it is an alleged mitigating factor, I find that it was not established by the evidence. The record does not support a conclusion that the defendant did not understand the difference between right and wrong in connection with the murder of Deborah Clay. The other is the allegation that the defendant cooperated with the police as evidenced by testimony of the various officers and his voluntary statement. While it is true that the defendant did not resist arrest when in the presence of the police officers, his statement to the police as to how Deborah Clay s death occurred was clearly untruthful. I do not find that his statement to the police is a mitigating factor. I find that all other mitigating factors alleged by the defendant were established by the evidence. The defendant, during his allocution, did express remorse for his crime. The defendant wrote to Judge Terry in November 1998 expressing concern 15

16 about how his mental and emotional problems could hurt his family and asking that appropriate treatment be ordered. In July, 1999 Judge Goldstein ordered that the defendant be evaluated for emotional and/or psychological problems and follow recommended treatment. While serving the Level V portion of this sentence, the defendant received counseling and was on medication for mental health issues. Upon his release from Level V to community supervision, however, further treatment or medication was not included as part of his probation despite the special condition that treatment be provided. After he was incarcerated for this case, he was again diagnosed as requiring medication. The defendant suffered a disadvantaged childhood and upbringing as detailed in the defense s notice of mitigating factors. Several of the mitigating factors presented by the defense relate to the defendant s relationship to his family and friends. The defendant has family members, including children, whom he loves and who love him, and friends and acquaintances, who could write, phone and visit him in prison. He has performed prior good deeds and has shown a willingness to help others. He has shown some positive personality traits such as being kind to family, neighbors, associates and friends. His execution would cause emotional trauma to his family and loved ones. Several of the alleged mitigating factors address the defendant s life in prison. They include arguments that he can address his various problems in prison, that he has some job skills, such as construction, carpentry and mechanics, which he may be able to teach to other inmates, and that he has intellectual abilities which will allow 16

17 him to become a productive member of prison society. While I find that these mitigating factors do exist, I find that they are offset by his history of prison rule violations. CONCLUSION During jury selection, the jurors were informed that if a penalty hearing became necessary, the Court would give their recommendation great weight in the sentencing decision. After the jury was selected, an amendment to the death penalty statute was signed into law which provided that the Court should give the jury s recommendation such consideration as it deems appropriate in light of the particular circumstances or details of the commission of the offense and the character and propensities of the offender as found by the Court to exist. In this case, after hearing and considering the evidence, I believe it appropriate to give the jury s recommendation great weight. I do so recognizing that I am not bound by the jury s recommendation if the evidence leads me to a different conclusion. In this case the aggravating factors are serious and substantial. While there are mitigating factors which have been proved, they are not substantial when compared to the aggravating factors. After carefully 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, I agree with the 11 jurors and I find that the aggravating circumstances found to exist outweigh the mitigating factors found to exist. Accordingly, I will impose a sentence of death. 17

18 IT IS SO ORDERED. /s/ James T. Vaughn, Jr. Resident Judge oc: cc: Prothonotary File 18