Billy Ray Nibert was convicted of first-degree murder for stabbing Eugene Snavely seventeen times with a knife. The issue on appeal is simply determining the appropriate sentence for the crime.

. . . The jury voted seven to five to recommend the death sentence. The trial court imposed the death sentence upon finding one aggravating circumstance: that the murder was committed in an especially heinous, atrocious, or cruel manner. The trial court found no statutory mitigating circumstances, expressly rejecting the claims that Nibert lacked the capacity to conform his conduct to the requirements of the law, and that Nibert was under the influence of extreme emotional or mental disturbance. As to nonstatutory mitigation, the trial court found “possible” mitigation in that Nibert “had an abused childhood; however, at the time of the murder the Defendant was twenty-seven (27) years old and had not lived with his mother since he was eighteen (18).”

Initially, we find that the trial court did not err in concluding that the murder was heinous, atrocious, or cruel. The Court reached the same conclusion in Nibert’s first appeal on the same aggravating evidence, reasoning that “[t]he victim was stabbed seventeen times. There was testimony that some of his wounds were defensive wounds and that the victim remained conscious throughout the stabbing.”

However, we agree with Nibert’s claim that the trial court should have found additional mitigating circumstances, and, in light of all the mitigating evidence, the sentence of death was disproportional when compared with other capital cases where this Court has vacated the death sentence and imposed life imprisonment.

A mitigating circumstance must be “reasonably established by the greater weight of the evidence.” Where uncontroverted evidence of a mitigating circumstance has been presented, a reasonable quantum of competent proof is required before the circumstance can be said to have been established. Thus, when a reasonable quantum of competent, uncontroverted evidence of a mitigating circumstance is presented, the trial court must find that the mitigating circumstance has been proved. A trial court may reject a defendant’s claim that a mitigating circumstance has been proved, however, provided that the record contains “competent substantial evidence to support the trial court’s rejection of these mitigating circumstances.”

Nibert presented a large quantum of uncontroverted mitigating evidence. First, Nibert produced uncontroverted evidence that he had been physically and psychologically abused in his youth for many years. The trial court found this to be “possible” mitigation, but dismissed the mitigation by pointing out that “at the time of the murder the Defendant was twenty-seven (27) years old and had not lived with his mother since he was eighteen (18).” We find that analysis inapposite. The fact that a defendant had suffered through more than a decade of psychological and physical abuse during the defendant’s formative childhood and adolescent years is in no way diminished by the fact that the abuse finally came to an end. To accept that analysis would mean that a defendant’s history as a victim of child abuse would never be accepted as a mitigating circumstance, despite wellsettled law to the contrary. Nibert reasonably proved this nonstatutory mitigating circumstance, and there is no competent, substantial evidence to support the trial court’s refusal to consider it.

Questions:

1. List all of the aggravating and mitigating factors found in relation to Billy Ray Nibert.
2. Should voluntary alcohol and/or drug use prior to a crime count as a mitigating factor when determining the appropriate sentence? Why or why not?