Cronin, Margie --- "James Hudson Savage v State of Florida" [1992] AboriginalLawB 39; (1992) 1(57) Aboriginal Law Bulletin 15

• James Hudson Savage V State Of Florida

---

James Hudson Savage v State of Florida

Supreme Court of Florida, October 1, 1991

Casenote by Margie Cronin

James Hudson Savage (also known as Russell Moore) has successfully appealed against a death sentence imposed on him by the State of Florida on the 23 February, 1990. The State had indicted Savage for first-degree murder, robbery with a deadly weapon, and sexual battery. The jury convicted him as charged and recommended that he be sentenced to life imprisonment. The trial court, however - Judge Lawrence Johnston - sentenced him to death, prompting this appeal.

Apart from, a number of arguments relating to his arrest (which was initially for allegedly violating parole) and questioning, the appeal court heard an argument relating to the defences request, at the trial stage, for an instruction to the jury on voluntary intoxication. The trial court heard the parties several times regarding this instruction, but eventually refused to give it. Counsel for Savage claimed in the appeal that the trial court erred in refusing to give the intoxication instruction.

Voluntary intoxication has been recognized as a defence in Florida for the last century and:

"[a] defendant is entitled to an instruction on the theory of the defence if the evidence supports giving such an instruction ... Robinson v State, 574 So.2d 108 (Fla.1991). However, 'where the evidence shows the use of intoxicants but does not show intoxication, the ... instruction is not required.' Linehan, 476 So.2d [1262 (F1a.1985)] at 1264." (at p.9)

The appeal court found that, contrary to Savage's argument, there was insufficient evidence of intoxication in his case and that Savage's own statements concerning his consumption of both alcohol and crack were unsupported by any evidence as to the quantity he had consumed or for how long he had been consuming them. The appeal court thus found that the sentencing court had not erred in refusing to give the instruction and further, that the several other issues raised by Savage, in relation to the guilt phase of his trial, had no merit. It stated in summary that:

"Our review of this record discloses competent, substantial evidence to support Savage's conviction of first-degree murder, and we affirm that conviction." (at p.9)

Regarding Savages sentence, however, it held that the trial court should not have overridden the jury's recommendation of life imprisonment. In reaching this conclusion it looked at the testimony of various witnesses at Savages trial.

Savage was taken from his young Aboriginal mother shortly after birth, pursuant to the then-existent Australian policy, followed by all State governments, of coerced adoptions as well as outright removal of Aboriginal children from their families (e.g., in NSW under the Aborigines Protection Board). Unknown to his Aboriginal family, when only four days old, he was, placed with the Savages, a white Australian couple, who subsequently adopted him and then moved to California when Savage was six and to Florida several years later. His adoptive family returned to Australia when Savage was seventeen, leaving him to fend for himself in the United States. By the time of his murder conviction he already had a considerable adult and juvenile record dating back to his early teens, as well as a drug and alcohol problem.

Savage’s natural mother testified on his behalf at sentencing. His adoptive father was a minister, and members of his adoptive father's churches who knew Savage as a child in Australia and in Florida testified that Savage was disciplined more than his adopted brother and sister, that he seemed afraid of his adoptive father, and that he seemed out of place as a black person among whites. A psychiatrist concluded, based on what Savage had told him and on his own examination of Savage, that drug and alcohol abuse combined with an organic brain syndrome produced a personality disorder that substantially impaired Savage's capacity to appreciate the criminality of his acts. This expert was adamant in his opinion that Savage was substantially impaired emotionally. A pharmacologist who examined Savage concurred with the psychiatrist's assessment. (see p.10)

The appeal court's determination was that "[t]he testimony outlined above could have persuaded the jury to recommend life imprisonment." (at p.11) The court explained that, as per Tedder v State, 322 So.2d 908, 910 (FIa.1975), `[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ."' (at p.11) They found that here, however, reasonable people could differ as to the propriety of the death sentence. It disagreed with the trial court that the facts requiring the death sentence were sufficiently clear and convincing in this case.

Their final order was thus that:

"...we vacate Savage's death sentence and direct the trial court to resentence him to life imprisonment with no possibility of parole for twenty-five years." (at p.11)

The case of James Savage/Russell Moore is illustrative of the devastating effects of the breaking up of Aboriginal families and kin networks that took place in Australia, under various government policy guises, from the time of British invasion through to the 1960's. Children removed from their families were raised in alien non-Aboriginal communities and consequently became the victims of discrimination and a confused sense of identity. As adults they very often lead lives of drug and alcohol dependence and social alienation, leading in many instances to criminality.

Ironically, it is often as a result of tragic circumstances - in Savages case the robbery and murder of a southern white woman in the United States - that these displaced people become aware of their Aboriginal families and background.

Perhaps, in light of his past treatment, James Savage is not the only one who has committed an indictable offence!

Margie Cronin