Depravity of Mind Definition
In order to find that this offense involved depravity of mind, you must find that the Defendant, as a result of an utterly corrupt, perverted or immoral state of mind, and with an indifference to the life or suffering of the victim, committed an aggravated battery or a torture upon a living victim, or subjected the body of a deceased victim, to mutilation, serious disfigurement, or sexual abuse, or that he relished or gained a sense of pleasure from the murder.
Depravity of mind requires a corrupt, perverted or immoral state of mind on the part of the Defendant in excess of what was required to accomplish the murder, so it is not enough for the state to merely show that he participated in the victim's death without more.
If acts occuring after the death of the victim are relied upon by the State to show the Defendant's depravity of mind, such acts must be shown to have occurred so close to the time of the victim's death, and must have been of such a nature, as to satisfy you beyond a reasonable doubt, that the depraved state of mind of the Defendant existed at the time the Defendant took the actions which resulted in the death of the victim.
In comparison, the United States Supreme Court approved a limiting instruction that required evidence of some kind of torture or physical abuse to define "especially heinous, atrocious or cruel" in Maynard, 486 U.S. at 364-65, 108 S. Ct. at 1859, 100 L. Ed. 2d at 382.
It also held that the phrase, "cold-blooded pitiless slayer" sufficiently limited "utter disregard for human life," because it described a murderer's state of mind and was a question of fact that could be inferred from the surrounding circumstances. Arave v. Creech, 507 U.S. 463, 471-73, 113 S. Ct. 1534, 1541-42, 123 L. Ed. 2d 188, 198-99 (1993).
Additionally, the Georgia Supreme Court approved use of the specific phrase "age and physical characteristics of the victim," as a limiting instruction for "depraved mind" in West v. State, 252 Ga. 156, 313 S.E.2d 67 (Ga 1984).
When compared to other challenged phrases, we do not think "age and physical characteristics of the victim" is overly broad in defining depravity of mind.
Phrases nearly identical to "with an indifference to the life or suffering of the victim" and "relished or gained a sense of pleasure from the murder" were approved by the United States Supreme Court in Walton v. Arizona, 497 U.S. 639, 655, 110 S. Ct. 3047, 3058, 111 L. Ed. 2d 511, 529 (1990) (refusing to fault state's limiting instruction for "depraved manner" which included the phrases "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).
The phrases used in the limiting instructions in the instant case are so similar to those approved in Walton as to furnish sufficient guidance to the jury.
Finally, use of the words "corrupt, perverted or immoral" in the instruction are not overly vague. As we stated in State v. Bullis: "Unless words of such seeming generality as 'moral' and 'immoral' were valid in statutes or jury instructions, government itself would become impossible." 89 S.D. 212, 214, 231 N.W.2d 851, 852 (1975) (citation omitted).
In that case we additionally held that the use of the word "corrupt" was not so vague as to violate a criminal defendant's right to due process. Id. at 214-15, 231 N.W.2d at 852.
The word "perversion," a variant of "perverted" was also approved as adequately narrowing a depraved mental state in Walton, 497 U.S. at 655, 110 S. Ct. at 3058, 111 L. Ed. 2d at 529 and in Arave, 507 U.S. at 473-74, 113 S. Ct. at 1542, 123 L. Ed. 2d at 199-200.