What is the legal definition of Murder Involved ''Torture'' ?
In order to find that a murder involved "torture," you must find, that while the victim was still alive and conscious, the defendant intentionally inflicted severe, unnecessary, physical or mental pain, agony, or anguish, upon him.
This could include the victim's severe mental anguish in anticipation of serious physical harm. Unnecessary pain, agony or anguish requires suffering on the part of the victim, in excess of what was required to accomplish the murder, so it does not include any physical or mental pain, agony or anguish which reasonably resulted from the victim's death or him brief anticipation of death.
Acts committed after the victim's death or while he was no longer conscious, may not be considered in determining whether "torture" was involved.
In Rhines, we considered and approved an instruction on "torture", There the instruction stated:
Torture occurs when a living person is subjected to the unnecessary and wanton infliction of severe physical or mental pain, agony, or anguish. Besides serious abuse, torture includes serious psychological abuse of a victim resulting in severe mental anguish to the victim in anticipation of serious physical harm. You would not be authorized to find that the offense of First Degree Murder involved torture simply because the victim suffered pain or briefly anticipated the prospect of death. Nor would acts committed upon the body of a deceased victim support a finding of torture. In order to find that the offense of First Degree Murder involved torture, you must find that the Defendant intentionally, unnecessarily, and wantonly inflicted severe physical or mental pain, agony or anguish upon a living victim.
Rhines, 1996 SD 55, P160, 548 N.W.2d at 451-52.
We noted in Rhines that the torture instruction included two essential limiting elements for a finding of torture:
(1) the unnecessary and wanton infliction of severe pain, agony, or anguish;
(2) the intent to inflict such pain, agony, or anguish. 1996 SD 55, P161, 548 N.W.2d at 452.
We held that such an instruction was proper because it eliminated from the pool of death-eligible murderers those who intended to kill their victims painlessly or instantly or who only intended to cause pain that was incident to death. Id.