Supreme Court Upholds Death Sentence

The state Supreme Court upheld the death penalty Thursday for a Lassen County man convicted of a machine gun-slaying of a college student who was abducted with his girlfriend as they were driving to school.

In a 6-1 ruling, the court affirmed the death sentence of Benjamin Wai Silva, 36, for the murder and kidnaping of Kevin Thorpe, 21, of Ridgecrest. Silva was acquitted in the murder of Laura Craig, 20, who with Thorpe was kidnaped by the defendant and two others in January, 1981.

The trial judge in the case said he had never seen any crime “more heartless or coldblooded.” According to testimony, Thorpe, terrified and crying, was chained by the neck and riddled with at least 32 bullets before his body was dismembered with an ax and the remains buried.

Charges Brought Improperly

In an opinion by Chief Justice Malcolm M. Lucas, the court found that three of the four capital charges against Silva--special circumstances that authorize the death penalty--were brought improperly but had not affected the outcome of the case.

Silva was properly charged with the remaining special circumstance--murder during commission of a felony, kidnaping for robbery--and thus the death sentence was permissible, the court said.

Although invalid in this case, the other special circumstances--murder for financial gain, murder that is “heinous, atrocious and cruel” and murder of a witness--played little role in the jury’s verdict because of the lack of evidence favorable to Silva, the court said.

“We conclude that a reasonable juror would not have been swayed by abstract concepts . . . but would instead have focused on the actual circumstances of the offense which formed the foundation for finding those special circumstances to be true,” Lucas wrote for the majority.

In dissent, Justice Allen E. Broussard said that while Silva’s conviction should be upheld, the sentence should be set aside.

Broussard said there was a “reasonable possibility” that the jury’s consideration of the invalid special circumstances, along with the improper admission of testimony that Silva threatened to kill a police officer in prison, had tipped the verdict to death rather than life without parole.

Ruling ‘Appropriate’

State Deputy Atty. Gen. Robert M. Foster called the ruling “appropriate, given the heinous crimes that were committed by the defendant.” He also said the decision will improve the prospect that death sentences will be upheld in other pending cases where capital charges were improper but had no effect on the verdict.

Foster noted that such charges were presumed valid when Silva’s case went to trial and it was not until later that they had been struck down or limited in their application in rulings by the state high court.

Emry J. Allen of Sacramento, the attorney representing Silva on appeal, said he will ask the justices to rehear the case and, if that fails, seek review by the U.S. Supreme Court.

“My greatest concern is that three special circumstances were found invalid in this case and yet the sentence was upheld,” Allen said. “It’s hard to conceive that this is just a ‘so what?’ issue.”

Thursday’s ruling marked the 21st time the court has upheld a death sentence in 29 capital cases decided since the defeat of Chief Justice Rose Elizabeth Bird and two other court members in the November, 1986, election.

According to testimony in the trial, Silva and two associates, Joe Shelton and Norm Thomas, used a red light to simulate a police car to stop Thorpe and Craig on U.S. 395 near Madeline.

Accomplice’s Testimony

Thomas, testifying for the prosecution, said Silva used an M-11 machine gun--capable of firing 32 rounds in less than two seconds--to shoot Thorpe at close range. Thomas, at Silva’s direction, then dismembered the body.

The young woman was held prisoner for several days--during which she was forced to commit sex acts--and then was killed.

In other actions Thursday, the court let stand an appeal court ruling prohibiting a group of topless nightclubs in San Diego from barring patrons wearing the insignias of local motorcycle clubs. The state Court of Appeal held such policies violated state civil rights law. However, the high court, while leaving the ruling intact, said it could not not be used as a legal precedent.