# State v. Creech

> Idaho Supreme Court · May 23, 1983 · 105 Idaho 362

URL: https://www.frixlaw.com/law-library/cases/2604767

## Case

- **Full name:** STATE of Idaho, Plaintiff-Respondent, v. Thomas Eugene CREECH, Defendant-Appellant
- **Court:** Idaho Supreme Court
- **Decided:** May 23, 1983
- **Citations:** 105 Idaho 362; 670 P.2d 463; 1983 Ida. LEXIS 568
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Bakes, Bistline, Donaldson, Huntley, Shepard
- **Cited by:** 100 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed in part by Arave v. Creech, 507 U.S. 463 (1993).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2604767

## How later opinions describe it (automated extraction)

- concluding that the language of the statutory scheme is sufficiently narrow to avoid the arbitrary and capricious infliction of the death penalty
- concluding that the language of the statutory scheme is sufficiently narrow to avoid an arbitrary and capricious infliction of the death penalty

## Opinion text

670 P.2d 463 (1983)
105 Idaho 362
STATE of Idaho, Plaintiff-Respondent,
v.
Thomas Eugene CREECH, Defendant-Appellant.
Nos. 14480, 15000.
Supreme Court of Idaho.
May 23, 1983.
Rehearing Denied September 21, 1983.
*464 Rolf Kehne, Boise, Klaus Wiebe, Ada County Public Defenders Office, for defendant-appellant.
*465 David H. Leroy, Jim Jones, Attys. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.
SHEPARD, Justice.
This is an appeal from a death sentence imposed upon defendant-appellant Thomas Eugene Creech after his plea of guilty to the charge of first degree murder. The cause is before this Court pursuant to the provisions of I.C. § 19-2827, "Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Idaho," and also upon an appeal filed by Creech, asserting error in certain proceedings, actions and orders of the trial court. We hold that the sentence was validly imposed in conformity with the statutory requirements for the imposition of a death sentence and that the sentence imposed was not in violation of either the Constitution of the State of Idaho or the Constitution of the United States. We affirm.
The following facts regarding the particular offense are disclosed by the record. At the time of the offense here in question, Creech was an inmate of the Idaho State Correctional Institution, serving a life sentence for first degree murder. The victim of this offense, Dale Jensen, had been convicted of car theft and was serving a sentence in the same institution. Jensen had some years earlier sustained a gunshot wound to the head which had necessitated the removal of part of his brain and the placement of a plastic plate in his skull. His speech and motor functions were impaired to some extent. At the time of the offense, both Creech and Jensen were housed in the maximum security tier of the institution.
In the maximum security tier, only one inmate at any one time was ordinarily allowed out of his cell. Creech, however, had been made a janitor and thus, while Creech was performing cleaning duties, he might be out of his cell while another inmate was out of his cell for exercise or shower privileges.
Prior to the offense in question, Creech and Jensen had engaged in argument over television and over Jensen's littering and dirtying the floor, for which Creech, as janitor, was responsible. Apparently the two were not on good terms. Although Creech himself has given more than one version of the murder, it appears that on the day in question, while Jensen was out of his cell, Jensen approached Creech and swung a weapon at him which consisted of a sock containing batteries. Creech took the weapon away from Jensen, who returned to his cell but emerged with a toothbrush to which had been taped a razor blade. When the two men again met, Jensen made some movement toward Creech, who then struck Jensen between the eyes with the battery laden sock, knocking Jensen to the floor. The fight continued, according to Creech's version, with Jensen swinging the razor blade at Creech and Creech hitting Jensen with the battery filled sock. The plate imbedded in Jensen's skull shattered, and blood from Jensen's skull was splashed on the floor and walls. Finally, the sock broke and the batteries fell out, and by that time Jensen was helpless. Creech then commenced kicking Jensen about the throat and head. Sometime later a guard noticed blood, and Jensen was taken to the hospital, where he died the same day. There is some evidence in the record indicating that Creech had been enticed by other inmates to "do Jensen in," but the district judge did not decide or find that the murder had been performed on contract or by plan.
Creech was charged with first degree murder and initially pleaded not guilty. However, later and apparently in response to a letter from Creech, he and his counsel were brought into court to entertain Creech's request to change his plea to guilty. Over the objections of defense counsel, that guilty plea was accepted and the court set a date for a sentencing hearing. Prior to that sentencing hearing, defendant's counsel demanded a jury trial on the issue of aggravating and mitigating factors and also demanded sentencing by a jury. Defense counsel further demanded a *466 sentencing hearing formal in nature and based solely on the testimony of live witnesses, and he objected to any consideration of hearsay evidence to be used in the formulation of findings on aggravation and mitigation. All of those demands were denied.
At the sentencing hearing, testimony was offered by both the State and the defense, relating to the mental condition of Creech. A psychiatrist, testifying on behalf of the State, offered as his professional opinion that Creech did not suffer from any organic brain syndrome, did not generally depart from reality in his day to day life, and was able to appreciate the wrongfulness of his conduct and conform his acts to the requirements of the law. A psychologist, testifying for the defense, offered as his opinion that Creech, during the fight with Jensen, lost his capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law. The psychologist further testified that, in his opinion, Creech suffered from antisocial personality disorder, from a learning deficit, from schizotypal personality disorder, and from a borderline personality disorder. The district court, although not expressly ruling on the sanity of Creech, did find that the defendant was of adequate intelligence and capable of being trained and educated, and further found that the murder was an intentional and calculated act.
Following the conclusion of the sentencing hearing, the district court made its written findings and pronounced sentence of death upon Creech. [1]
The issues presented on this appeal are whether I.C. §§ 19-2515-2516 require a judge's findings in mitigation and aggravation and the imposition of sentence to be based solely on evidence adduced from witnesses personally present and testifying in open court at the sentencing hearing; whether the district judge here committed error in his weighing of the aggravating and mitigating circumstances; and finally, whether the imposition of the death penalty, under our statutory scheme which allows the imposition of the death penalty by a judge without participation or recommendation of jury, is unconstitutional. We answer all three issues in the negative and affirm the holding of the district court below.
At the outset of the sentencing hearing the State requested that the court take judicial notice of the court's entire file and of the presentence report which the district judge had ordered be prepared. Defendant objected and demanded that the entire sentencing record be produced by live witnesses testifying in open court, basing his demand on I.C. §§ 19-2515-2516 and the case law interpreting those statutes. That demand was treated as a motion, which was denied.
We note at the outset that a sentencing decision made solely on the basis of live testimony is not constitutionally mandated. Rule 32(c) of the Federal Rules of Criminal Procedure provides as a matter of course that the probation service of the court shall make a presentence investigation and report to the court before imposition of sentence. The use of the presentence report over defendant's objection has been upheld, despite the contention that the report contained hearsay. Gregg v. Georgia, 428 U.S. 153, 203-204 , 96 S.Ct. 2909, 2939-2940 , 49 L.Ed.2d 859 (1976); United States v. Tucker, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 (1972); Gregg v. United States, 394 U.S. *467 489, 89 S.Ct. 1134 , 22 L.Ed.2d 442 (1969); State v. Johnson, 101 Idaho 581 , 618 P.2d 759 (1980); United States v. Ferreboeuf, 632 F.2d 832 (9th Cir.1980), cert. denied, 450 U.S. 934 , 101 S.Ct. 1398 , 67 L.Ed.2d 368 (1981); Gelfuso v. Bell, 590 F.2d 754 (9th Cir.1978). This Court has held that the trial judge has broad discretion in deciding what evidence is admissible at the sentencing hearing, State v. Johnson, supra , and that the rules of evidence do not apply to the sentencing process, State v. Johnson, supra ; State v. Tucker, 97 Idaho 4 , 539 P.2d 556 (1975). All of the above holdings comport with the constitutional mandate "that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, at 55 , 58 S.Ct. 59, at 60 , 82 L.Ed. 43 (1937). Accord Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982); Williams v. Oklahoma, 358 U.S. 576 , 79 S.Ct. 421 , 3 L.Ed.2d 516 (1959); Williams v. New York, 337 U.S. 241 , 69 S.Ct. 1079 , 93 L.Ed. 1337 (1949). We further note that the United States Supreme Court has in several instances set aside a death sentence, where the Court deemed that the circumstances under which the sentence was imposed did not allow the proper in-depth consideration of the particular circumstances of both the offender and the offense involved. Enmund v. Florida, supra ; Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978); Roberts v. Louisiana, 431 U.S. 633 , 97 S.Ct. 1993 , 52 L.Ed.2d 637 (1977); Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976); Winston v. United States, 172 U.S. 303 , 19 S.Ct. 212 , 43 L.Ed. 456 (1899). See also, Jurek v. Texas, 428 U.S. 262, 271-273 , 96 S.Ct. 2950, 2956-2957 , 49 L.Ed.2d 929 (1976).
Thus, the argument of appellant that the matters which may be considered at a sentencing hearing must be limited to testimony adduced from witnesses there present must find its foundation, if any, in interpretation of the language of I.C. §§ 19-2515-2516. I.C. § 19-2515 provides in pertinent part:
"(a) After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral or written suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.
* * * * * *
"(c) In all cases in which the death penalty may be imposed, the court shall, after conviction, order a presentence investigation to be conducted according to such procedures as are prescribed by law and shall thereafter convene a sentencing hearing for the purpose of hearing all relevant evidence and arguments of counsel in aggravation and mitigation of the offense. At such hearing, the state and the defendant shall be entitled to present all relevant evidence in aggravation and mitigation ... Evidence admitted at trial shall be considered and need not be repeated at the sentencing hearing. Evidence offered at trial but not admitted may be repeated or amplified if necessary to complete the record." (Emphasis added.)
I.C. § 19-2516 provides:
"19-2516. Inquiry into circumstances — Examination of witnesses. — The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section. " (Emphasis added.)
*468 Here the district court accepted a presentence report compiled by a probation officer which included recitations of prior murder convictions, pending charges of first degree murder, other felonies of which Creech had been charged or convicted, the transcript from a prior trial in which Creech was convicted of first degree murder, reports of psychiatric interviews, letters from Creech, and the manuscript of an autobiographical paper written by Creech, all of which material was considered by the sentencing judge in the instant case.
Appellant asserts that any reasonable interpretation of I.C. § 19-2516 mandates that only oral testimony is to be admitted and considered in a sentencing hearing and hence the admission and consideration of the written presentence report was error, particularly where as here appellant had demanded that the hearing be limited to live testimony.
Appellant's assertion regarding the requirements of I.C. § 19-2516 has been considered and rejected by this Court in the recent case of State v. Osborn, 102 Idaho 405 , 631 P.2d 187 (1981). In Osborn it was held that the statute does not displace or exclude the discretion otherwise granted to the state as to the procedure of presenting evidence of aggravating circumstances at the sentencing hearing. There the Court stated:
"The last sentence of I.C. § 19-2516 makes it clear that we are to treat both sections as together setting forth the procedure to be followed in such hearings. The statute provides that evidence previously presented at trial need not be repeated and indeed may be amplified if desired. The parties are `entitled to present all [other] relevant evidence' they desire. The manifest intent is to place as much possible relevant information as can be provided before the sentencing court. This also serves to provide this court with as much information and as complete a record as possible for appellate review." Id., 102 Idaho at 411-412 , 631 P.2d 193 -194 (brackets in original).
In Osborn it was noted that the "unreasoning adherence to the formal requirements [of I.C. § 19-2516] would not materially add to the achievement of statutory objectives" and held that the admission of the presentence report was not error. Id., 102 Idaho at 413 , 631 P.2d 195 .
Under the established rules of statutory construction, we are required to construe the language of I.C. § 19-2515 as being consistent with the language of I.C. § 19-2516, if such construction is at all possible. As we explained in Union Pacific R. Co. v. Board of Tax Appeals, 103 Idaho 808 , 654 P.2d 901, 904 (1982):
"Statutes which are in pari materia are to be construed together to the end that legislative intent will be effected. [Citations omitted.] As stated in Meyers v. City of Idaho Falls, 52 Idaho 81, 89-90 , 11 P.2d 626, 629 (1932):
`The rule that statutes in pari materia are to be construed together means that each legislative act is to be interpreted with other acts relating to the same matter or subject. Statutes are in pari materia when they relate to the same subject. Such statutes are taken together and construed as one system, and the object is to carry into effect the intention. It is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions. For the purpose of learning the intention, all statutes relating to the same subject are to be compared, and so far as still in force brought into harmony by interpretation.' (Citations omitted.)"
Since both statutes deal with the same subject matter, i.e., sentencing procedures, we are enjoined to compare and harmonize them.
I.C. § 19-2515(c) clearly requires that, "[i]n all cases in which the death penalty may be imposed, the court shall, after conviction, order a presentence investigation to be conducted according to such procedures as are prescribed by law." Hence, *469 no discretion exists in the court, other than to order the conducting of a presentence investigation. I.C. § 20-220 sets out the scope of such investigation, requires a written report, and mandates:
"The parole and probation officer shall inquire into the circumstances of the offense, criminal record, social history and present condition of the defendant. Whenever practicable, such investigation shall include a physical and mental examination of the defendant."
A logical extension of appellant's argument would require an investigation to be completed, a written report to be submitted, but upon the demand of the defendant, the court to refrain from reading the report. Such a result would be, of course, anomalous and unnecessary. We hold that the closing language of I.C. § 19-2516 clearly and unambiguously provides an exception to the otherwise required oral testimony and that those authorizations of I.C. § 19-2515 fall within the purview of the intended exception.
Appellant argues that interpreting the presentence investigation requirements of I.C. § 19-2515 as an exception to the live witness requirement of I.C. § 19-2516 renders the live witness requirement a nullity. As noted above, we do not find the two statutes to be irreconcilable because of the exception language, but in any event, if the provisions of the two statutes could not be harmonized, then the provisions of I.C. § 19-2516 would be construed to be superseded, since I.C. § 19-2515 is the later enacted statute. Mickelsen v. City of Rexburg, 101 Idaho 305 , 612 P.2d 542 (1980).
As stated in State v. Yoelin, 94 Idaho 791, 794 , 498 P.2d 1264, 1267 (1972), the court is free to consider the results of the prehearing investigation if the reliability of the information contained in the report is insured by certain protections, i.e.,
"(1) that the defendant be afforded a full opportunity to present favorable evidence; (2) that the defendant be afforded a reasonable opportunity to examine all the materials contained in the pre-sentence report; (3) that the defendant be afforded a full opportunity to explain and rebut adverse evidence."
Accord State v. Johnson, 101 Idaho 581 , 618 P.2d 759 (1980), citing Williams v. New York, 337 U.S. 241 , 69 S.Ct. 1079 , 93 L.Ed. 1337 (1949); State v. Ballard, 93 Idaho 355 , 461 P.2d 250 (1969). Here there is no contention that the defendant was not afforded those protections, and the defendant has at no point, either here or below, challenged the truth of any of the material contained in the presentence report.
We hold that the court's admission of and consideration of the presentence report was not error.
Appellant next asserts that the district court committed reversible error in its finding of aggravating and mitigating circumstances. He asserts that the aggravating circumstances are unsupported in the record; that the court wrongly included in its weighing process non-statutory aggravating circumstances; that the statutory aggravating circumstances which the court may consider as listed in I.C. § 19-2515(f) are unconstitutionally vague; that the court unconstitutionally failed to consider the reduced capacity of the defendant at the time of the murder as being a mitigating circumstance; and that the weighing process of I.C. § 19-2515 is unconstitutional, in that it allows the imposition of a death sentence where aggravating circumstances do not outweigh mitigating circumstances beyond a reasonable doubt.
The decisions of the United States Supreme Court require that sentencing discretion be directed and limited, so as to promote consistency and to prevent a death sentence from being "wantonly" and "freakishly" imposed ( Furman v. Georgia, 408 U.S. 238, 310 , 92 S.Ct. 2726, 2762 , 33 L.Ed.2d 346 (1972) (Stewart, J., concurring)), and to provide a "meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not" ( id., at 313 , 92 S.Ct. at 2764 (White, J., concurring); Lockett v. Ohio, 438 U.S. 586, 599 , 98 S.Ct. 2954, 2962 , 57 L.Ed.2d 973 (1978) (Burger, C.J., writing for the plurality); *470 Gregg v. Georgia, 428 U.S. 153, 188 , 96 S.Ct. 2909, 2932 , 49 L.Ed.2d 859 (1976) (Stewart, J., announcing the judgment of the court and an opinion in which Powell and Stevens, JJ., join)). At the same time, the sentencing process must allow flexibility, in order that it be humane and sensitive to the individual defendant. Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982), citing Lockett v. Ohio, supra .
Thus, an almost unavoidable conflict presents itself to a legislature attempting to design a sentencing process that is both a consistent and principled system of punishment and one that is flexibly humane and cognizant of the uniqueness of each individual defendant. See, Eddings v. Oklahoma, supra . In Idaho, the aggravating circumstances which a sentencing judge may consider in pronouncing sentence in a capital case are clearly laid out in I.C. § 19-2515, and thus, to the extent possible, arbitrariness or the influence of prejudice is avoided, but the necessary individual consideration is nonetheless preserved. The open-ended allowance of mitigating evidence provides the defendant with the opportunity to present every possible justification for a sentence of less than death. Such an unlimited mitigation provision was approved in Eddings v. Oklahoma, supra . We hold, therefore, that the sentencing provisions of I.C. §§ 19-2501-2523 satisfy those guidelines, as we understand them, from the various holdings of the United States Supreme Court in death penalty cases.
We turn now to whether the sentencing judge complied with those statutory provisions. Appellant argues that the court erred in finding beyond a reasonable doubt that the defendant had previously been convicted of other murders; that the defendant had exhibited utter disregard for human life and a propensity to commit murder; that the defendant was under sentence for first degree murder at the time of his actions; and that both defendant and his victim were inmates at the state penitentiary when the crime occurred. We have reviewed the record and hold that the evidence at the sentencing hearing clearly supports the trial court's findings of aggravating and mitigating circumstances.
Appellant next asserts that the trial court erred, in that the judge weighed non-statutory aggravating circumstances against mitigating circumstances, thereby allegedly violating the strictures of I.C. § 19-2515. This contention appears to arise from the format chosen by the court in drafting its findings. The findings were organized into sections, i.e.,
"4. Facts and Argument Found in Mitigation * * *
"5. Facts and Arguments Found in Aggravation [not expressly found beyond a reasonable doubt] * * *
"6. Statutory Aggravating Circumstances Found Under Section 19-2515(f), Idaho Code [expressly found beyond a reasonable doubt] * * *." (Material in brackets added.)
The court is not limited as to the circumstances it may find in aggravation to those listed under I.C. § 19-2515(f). Thus, that section of the court's findings denominated "5. Facts and Arguments Found in Aggravation," although including circumstances not statutorily listed and not expressly found beyond a reasonable doubt, is not error. I.C. § 19-2515(a) permits the court, upon the suggestion of either party that there are circumstances which might properly be considered in aggravation or mitigation, to hear those circumstances. That language strongly suggests that a judge should hear all relevant evidence which either party desires to set forth. Such an interpretation is not contradicted by I.C. § 19-2515(f), which merely lists the statutory aggravating circumstances, at least one of which must exist beyond a reasonable doubt if the ultimate sanction of death is to be imposed. As above stated, a wide scope of evidence of the personality and background of the accused must be available to the trial judge in order for the sentence to fit the individual defendant. Williams v. New York, 337 U.S. 241 , 69 S.Ct. 1079 , 93 L.Ed. 1337 (1949). We hold that the list of aggravating factors set *471 forth in the statute is not exclusive, albeit one of those factors must necessarily be found to exist beyond a reasonable doubt for a sentence of death to be upheld. Where as here the sentencing judge formally finds, and his findings are substantiated, that there are statutory aggravating factors and those factors are not outweighed by mitigating circumstances, he has complied with the statutory directives. We find no error.
Appellant next asserts that certain factors set forth as aggravating circumstances by I.C. § 19-2515(f) are unconstitutionally vague, and he specifically challenges the findings that the appellant here had exhibited "utter disregard for human life," I.C. § 19-2515(f)(6), and a "propensity to commit murder," I.C. § 19-2515(f)(8).
In State v. Osborn, 102 Idaho 405 , 631 P.2d 187 (1981), relying on Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), and on Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980), we held that the challenged statutory language was sufficiently narrow, direct and objective to withstand a constitutional challenge of constitutional unfairness. We stated:
"A ... limiting construction must be placed upon the aggravating circumstances in I.C. § 19-2515(f)(6), that `[b]y the murder, or the circumstances surrounding its commission, the defendant exhibited utter disregard for human life.' To properly define this circumstance, it is important to note the other aggravating circumstances with which this provision overlaps. The second aggravating circumstance, I.C. § 19-2515(f)(2), that the defendant committed another murder at the time this murder was committed, obviously could show an utter disregard for human life, as could the third aggravating circumstance, I.C. § 19-2515(f)(3), that the defendant knowingly created a great risk of death to many persons. The same can be said for the fourth aggravating circumstance, I.C. § 19-2515(f)(4), that the murder was committed for remuneration. Since we will not presume that the legislative intent was to duplicate any already enumerated circumstance, thus making I.C. § 19-2515(f)(6) mere surplusage ( See, e.g., Norton v. Dept. of Employment, 94 Idaho 924 , 500 P.2d 825 (1972)), we hold that the phrase `utter disregard' must be viewed in reference to acts other than those set forth in I.C. §§ 19-2515(f)(2), (3), and (4). We conclude instead that the phrase is meant to be reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the cold-blooded, pitiless slayer." State v. Osborn, supra, 102 Idaho at 418-419 , 631 P.2d 200 -201.
We hold that, by this limiting definition, we as a reviewing court have fulfilled the requirements of Godfrey v. Georgia, supra , having thus tailored and consistently applied the law according to a principled definition that avoids the arbitrary and capricious infliction of the death penalty. We therefore hold that the statutory aggravating circumstance of I.C. § 19-2515(f)(6), that by the murder and the circumstances surrounding it defendant exhibited an utter disregard for human life, is not unconstitutionally vague.
Likewise, we reject appellant's assertion that I.C. § 19-2515(f)(8) is impermissibly vague. That statute provides, as an aggravating circumstance, that "[t]he defendant, by prior conduct or conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society." Under Gregg and Furman , that statutory language does not fail as being facially unconstitutional. Here, as contrasted with the argument in Osborn regarding the "utter disregard for human life," it cannot be asserted that the "propensity" circumstance could conceivably be applied to every murderer coming before a court in this state. We would construe "propensity" to exclude, for example, a person who has no inclination to kill but in an episode of rage, such as during an emotional family or lover's quarrel, commits the offense of murder. We would doubt that most of those convicted of murder would *472 again commit murder, and rather we construe the "propensity" language to specify that person who is a willing, predisposed killer, a killer who tends toward destroying the life of another, one who kills with less than the normal amount of provocation. We would hold that propensity assumes a proclivity, a susceptibility, and even an affinity toward committing the act of murder.
In Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976) (opinion of Stewart, J., in which Powell and Stevens, JJ., joined), a similar provision from Georgia's statutory list of aggravating circumstances was upheld, the Court noting that the Georgia Supreme Court had sufficiently narrowed its meaning to avoid its being indiscriminately applied. The Court stated, "[T]he petitioner points to § 27-2534.1(b)(3) which speaks of creating a `great risk of death to more than one person.' While such a phrase might be susceptible of an overly broad interpretation, the Supreme Court of Georgia has not so construed it." Id., 428 U.S. at 202, 96 S.Ct. at 2939.
In Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976), the Court rejected an argument that the circumstance of "a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" was unconstitutionally vague. There the appellant had contended that the provision required the court to predict the future. It was noted that such speculation on future behavior is made by courts countless times daily in every sentencing decision and in every determination of bail, and by parole authorities constantly in probation decisions. Jurek, supra, 428 U.S. at p. 275, 96 S.Ct. at p. 2957 (opinion of Stewart, J., joined by Powell and Stevens, JJ.). White, J., joined by Chief Justice Burger and Rehnquist, J., concurred in the holding that the statutory aggravating circumstances of the Texas statute were sufficiently narrow in definition to withstand a challenge for vagueness. Accord Proffitt v. Florida, 428 U.S. 242, 255 , 96 S.Ct. 2960, 2968 , 49 L.Ed.2d 913 (1976). It has also been noted that, where a uniform process of appellate review is built in by way of a statutory requirement, there is an increased likelihood of consistent, well-guided application of such statutory aggravating circumstances. Such a system "can assure consistency, fairness and rationality in the evenhanded operation of the state law ... [T]his [type of] system serves to assure that sentences of death will not be `wantonly' or `freakishly' imposed." Profitt v. Florida, 428 U.S. 242, 259-260 , 96 S.Ct. 2960, 2969-2970 , 49 L.Ed.2d 913 (opinion of Powell, J., in which Stewart and Stevens, JJ., joined). Accord Jurek v. Texas, supra, 428 U.S. at 276, 96 S.Ct. at 2958 ; Gregg v. Georgia, supra, 428 U.S. at 205, 96 S.Ct. at 2940 . Here our legislature has required that every capital sentencing decision be reviewed by this Court and has, in I.C. § 19-2827, further enhanced uniform application by requiring comparison of capital cases.
As applied to this particular defendant, the finding of propensity was clearly tailored and correct. The defendant here committed murder at least four times prior to the instant offense, twice in Idaho and also in Oregon and in California. There presently exist other pending charges of murder in the first degree against him. The testimony of an eyewitness to one of Creech's previous murders, coupled with psychiatric evidence, tends to prove that the appellant is violent and vengeful and that he experiences no remorse for his actions. Letters written by Creech to law enforcement personnel detail numerous alleged murders beyond those for which he has already been convicted and intimate his intentions to kill in the future. Creech's own statements claim responsibility for approximately 40 murders. However vague the statutory language might be argued to be in the ordinary case (which assertion we have already rejected), nevertheless, as applied in the instant case, we hold beyond any doubt whatsoever that the appellant here has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.
Appellant next asserts that the trial court erred in its findings regarding aggravation *473 and mitigation, in that the court failed to consider the reduced capacity of the defendant at the time of the murder as a mitigating circumstance. Appellant argues that since the court did not mention such evidence in its finding, it must not have considered such evidence. While I.C. § 19-2515(d) directs that "the court shall set forth in writing any mitigating factors considered," the practical effect of that statute is not to require the judge to set out each and every circumstance presented to him in mitigation, but rather, the plain language of the statute, we hold, requires the judge to list that evidence which, in his capacity as a fact finder, he has found to be valid, competent, and pertinent to the issue of whether the death penalty should be imposed. To accept appellant's contention would result in a requirement that the judge set forth in writing every consideration that has been raised or has occurred to him as a potential factor in mitigation, a requirement we deem to be unworkable, impossible, and not to be gleaned from the statutory language.
Clearly, the court heard and considered evidence of appellant's mental status from the testimony of the psychiatrist and the psychologist and from the voluminous information available in the presentence report. The court reasonably concluded that appellant was of average intelligence, that he had exhibited an excessive violent rage in committing the crime, and that he was beyond rehabilitation. The sentencing court is charged with evaluating the expert testimony and will not have its findings reversed absent a clear abuse of discretion. Simpson v. Johnson, 100 Idaho 357 , 597 P.2d 600 (1979); Roemer v. Green Pastures Farms, Inc., 97 Idaho 591 , 548 P.2d 857 (1976). This rule of evidence applies in criminal as well as in civil cases. I.C.R. 26. We hold the above findings of the trial court are amply supported by the evidence.
Appellant next asserts that the process of weighing aggravating and mitigating circumstances, as set forth by I.C. § 19-2515(b), is unconstitutional. Appellant urges us to adopt a standard that, before a death sentence may be imposed, "the sentencing authority must be persuaded beyond a reasonable doubt that total mitigation is outweighed by total aggravation, and that beyond a reasonable doubt the imposition of death is justified," and that otherwise the penalty must be less than death.
That same contention was dealt with by this Court in State v. Osborn, 102 Idaho 405 , 631 P.2d 187 (1981). Osborn is controlling and dispositive here. We there stated:
"The weighing process, in our opinion does not involve shifting the burden of persuasion but is concerned instead with the presentation of relevant information to the sentencer in order that a reasoned and considered decision can be reached. The defendant's burden is merely to raise, in the aggravation-mitigation hearing, any factors which might possibly tend to mitigate his culpability for the offense. He has full opportunity to present and argue those factors. The court below then evaluates those factors under the guidelines set forth in the statute. His decision, including his reasoning, is then set forth in detail and this court reviews the entire process. While it is possible to speak of a `burden' of persuasion on the defendant to establish why he should receive leniency, we feel that, under our sentencing process, the facts speak for themselves once presented. The completeness of the evaluative process below and the mandatory review by this court, we feel, withstands constitutional scrutiny. Tichnell v. State, 287 Md. 695 , 415 A.2d 830, 848-50 (1980); State v. Watson, 120 Ariz. 441 , 586 P.2d 1253, 1258-9 (1978), cert. den. 440 U.S. 924 , 99 S.Ct. 1254 , 59 L.Ed.2d 478 (1979)." State v. Osborn, supra, 102 Idaho at 417 , 631 P.2d at 199 .
Appellant next asserts that Idaho's death penalty provisions are unconstitutional, in that jury participation is not required in the sentencing decision, but rather the discretion to impose a death sentence is vested in a judge. At other places or at other times, juries have been given an integral *474 role in imposing the death sentence. However, we hold that jury participation in the sentencing process is not constitutionally required.
Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), and its progeny have consistently conditioned the validity of death penalty provisions upon their capacity to be consistently, specifically, and non-arbitrarily interpreted. The consensus of the holdings in death penalty cases is that a death penalty scheme fails the constitutional test if it is reasonably susceptible of irregular, wanton, or freakish application, not only as codified by the legislature but also as interpreted by the courts. We deem consistency to be a key requirement in the upholding of death penalty provisions as being constitutional.
On the subject of comparative consistency of judge or jury sentencing, it was stated in Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 (1976):
"This Court has pointed out that jury sentencing in a capital case can perform an important societal function, Witherspoon v. Illinois, 391 U.S. 510 , 519 n. 15 [ 88 S.Ct. 1770 , 1775 n. 15, 20 L.Ed.2d 776 ] (1968), but it has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases." Id., 428 U.S. at 252, 96 S.Ct. at 2966 (Stewart, J., joined by Powell and Stevens, JJ.). (Emphasis added.)
See also Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976).
We hold that there is no federal constitutional requirement of jury participation in the sentencing process and that the decision to have jury participation in the sentencing process, as contrasted with judicial discretion sentencing, is within the policy determination of the individual states. We are left to an examination of the exercise of discretion by our legislature in its adoption of policy. Even assuming that it is appropriate for this Court to examine the validity of the legislative policy determination, we would agree with our legislature that judicial control of the sentencing process is preferable to jury participation, in that the constitutionally mandated consistency of result is more probable in the case of judicial sentencing.
Our attention is drawn to no authority or data, other than the bare assertion of appellant, which indicates that judges do not reflect community norms. Contrary to what may be the case in some states, Idaho's judges are not ivory tower elitists. Although they may wear the robe and sit on an elevated bench, they nevertheless are elected from the communities in which they are required to reside. Our magistrate judges are required to stand for retention and the percentage of their retention vote is generally assumed to, in part at least, be a result of their community's evaluation of them and the extent to which they comply with the community's norms and values. Indeed, in the last election, a number were evidently not held by the electorate to represent the community norms and values and so were terminated in office. So also our district judges must stand for election every four years, with the resultant oft-contested judicial seats. The outcome of recent elections demonstrates that our district judges are not insulated from their communities and that their positions are anything but lifetime sinecures.
Further, in evaluating our legislatively mandated death penalty sentencing in Idaho, we note that the Supreme Court of the United States has often recognized that legislative enactments are a reliable gauge and "indicia of societal values." Woodson v. North Carolina, 428 U.S. 280, 288 , 96 S.Ct. 2978, 2983 , 49 L.Ed.2d 944 (1976), citing Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976). We hold that the policy judgment of our legislature, which places capital sentencing discretion in the district judges of our state with mandatory appellate review vested in this Court *475 of statewide jurisdiction, meets any test of constitutionality.
Finally, we turn to the requirements of I.C. § 19-2827, whereby in every death penalty case this Court is enjoined to review the record to ascertain whether passion, prejudice or any other arbitrary factor has influenced the determination to impose the death sentence and whether the death sentence is excessive or disproportionate to that imposed in similar cases.
We have reviewed three of the more recent cases to come before this Court which have involved the death penalty. In State v. Creech, 99 Idaho 779 , 589 P.2d 114 (1979), and State v. Lindquist, 99 Idaho 766 , 589 P.2d 101 (1979), although both Creech and Lindquist had been sentenced to death, this Court vacated the death sentences, on the basis that Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976), had effectively invalidated Idaho's then mandatory death penalty statutes. In State v. Needs, 99 Idaho 883 , 591 P.2d 130 (1979), this Court affirmed the trial court's holding that at the time defendant Needs was sentenced on her first degree murder conviction, no valid sentencing statute existed for the crime of first degree murder, and hence we affirmed the trial court's maximum sentence for second degree murder.
Since the legislative amendment in 1977 of our death sentence provisions to their present form, only one case has been presented to this Court which dealt with a first degree murder conviction or a homicide sufficiently heinous as to arguably be comparable to the circumstances here as a "similar case" under I.C. § 19-2827, i.e., State v. Osborn, 102 Idaho 405 , 631 P.2d 187 (1981). In Osborn , the Court did not find the death sentence to be disproportionately harsh, but remanded to the trial court for findings relating to the mitigating factors.
We conclude that in our consideration of the proportionality of the sentence imposed here, those "similar cases" most nearly comparable are Creech, Lindquist, Needs, and Osborn since, despite the invalidation of the sentences on other grounds, nevertheless the facts and circumstances underlying the imposition of the death penalty in those cases are worthy of consideration in weighing whether the sentence imposed in the instant case is disproportionate.
The death penalty was imposed in Creech I, which resulted from a conviction for two counts of first degree murder. The record there reveals substantially the same personal background of Creech as is shown in the instant case. The circumstances of that offense indicated that Creech was hitchhiking with a female friend and they were given a ride by two men who during the course of the trip were interpreted by Creech as attempting to flirt with his friend. Creech shot the two men in cold blood and threw their bodies off the side of the road. According to the eyewitness, Creech displayed no emotion thereafter and acted as if the killings were of no moment.
Lindquist and the victim's husband conspired to murder the victim for the purpose of collecting life insurance policies. Several attempts were made on the life of the victim and finally Lindquist, at the instance of the victim's husband, met the pregnant victim at a remote site, where he shot her several times through the windows of her car and then completed the killing by pulling her from the car and clubbing her to death.
In Osborn , the defendant had worked with and was a friend of the victim, who had threatened to inform on the defendant for a robbery offense. The victim's partially clothed body was found alongside a road. She had been extensively beaten about the head and face, and shot three times in the head, once in the shoulder, and once in the abdomen.
In Needs , the defendant had previously been convicted of homicide and on several occasions had threatened to kill the victim, who was her husband. She was convicted of the murder of her husband. The remains of the victim consisted of a partially burned torso without head or arms. Although the torso contained numerous stab wounds, they did not cause death, which probably *476 resulted from gunshots, decapitation or a slit throat. As above noted, although the death sentence may well have been justified, it was held that no valid sentencing statute then existed for the crime of first degree murder.
We hold that none of these recent Idaho murder decisions militates toward the granting of leniency in the present case. We find no instance in which a defendant found guilty of such previous crimes as those of Thomas Creech has been found deserving of a sentence less than death. We have examined cases dating back more than 50 years [2] and our examination fails to disclose that any such remorseless, calculating, cold-blooded multiple murderer has (with the exception of Creech I ) ever been before this Court. See however, State v. Gretzler, 135 Ariz. 42 , 659 P.2d 1 (Ariz. 1983). We hold that the death penalty imposed in this case is both proportionate and just.
Although claims of unconstitutional double jeopardy and ex post facto application of law are not raised by appellant, since resentencing has taken place as discussed supra, we have considered such possible problems. We find no constitutional violation in either regard. Knapp v. Cardwell, 667 F.2d 1253 (9th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 473 , 74 L.Ed.2d 621 (1982). See also, State v. Gretzler, supra.
In accord with the foregoing, we affirm the trial court's imposition of the death penalty.
DONALDSON, C.J., and BAKES, J., concur.
HUNTLEY, Justice, dissenting.
Despite the fact that the nature of the crime together with the aggravating factors make this case one where, if ever the death penalty is to be imposed, it should be here, I must dissent.
I would remand for utilization of proper sentencing procedures because the precedent the majority sets here, if followed in future cases, will do great violence to two very basic tenets of the criminal justice system of this state:
(1) the right to trial by jury and
(2) the right of the accused to confront the witnesses against him.
*477 I
The Idaho Constitution, as first approved on July 3, 1890, and as it reads today, provides in Art. 1, § 7:
"Right to trial by jury. — The right of trial by jury shall remain inviolate... ."
That right of trial by jury as it existed at the time our constitution was adopted provided for jury participation in the capital sentencing process. Section 17 of the Criminal Practice Act of 1864 provided in pertinent part:
"[A]nd the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree; but, if such person shall be convicted on confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and give sentence accordingly. Every person convicted of murder of the first degree, shall suffer death; and every person convicted of murder in the second degree, shall suffer imprisonment in the territorial prison for a term not less than ten years, and which may be extended to life."
In other words, the jury, by determining whether the party was guilty of either first or second degree murder, determined whether or not the death penalty would be imposed.
In Blue Note Inc. v. Hopper, 85 Idaho 152, 157 , 377 P.2d 373 (1962), we stated:
"The provisions of the constitution pertaining to the right to trial by jury are construed to apply as it existed at the date of the adoption of the constitution."
Accord: Anderson v. Whipple, 71 Idaho 112 , 227 P.2d 351 (1951); Christensen v. Hollingsworth, 6 Idaho 87 , 53 P. 211 (1898); Comish v. Smith, 97 Idaho 89 , 540 P.2d 274 (1975).
Idaho continued to employ the jury in the capital sentencing process during all of the intervening years until the Supreme Court of the United States struck down the death penalty statutes of most states through its 1972 decision in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 .
At the time of Furman , I.C. § 18-4004 read:
"Punishment for murder. — Every person guilty of murder in the first degree shall suffer death or be punished by imprisonment in the state prison for life, and the jury may decide which punishment shall be inflicted. Every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years and the imprisonment may extend to life."
In its first post- Furman session (1973), the Idaho legislature deleted the jury function from I.C. § 18-4004 and made all convictions of first degree murder subject to the death penalty. This was done in an attempt to remove the "cruel and unusual punishment" aspects disapproved in Furman . I.C. § 18-4004 was amended by striking out the words as lined out below:
"18-4004. PUNISHMENT FOR MURDER. — Every person guilty of murder in the first degree shall suffer death or be punished by imprisonment in the state prison for life, and the jury may decide which punishment shall be inflicted. Every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years and the imprisonment may extend to life."
The 1973 amendment restored the law to its 1864 standing.
After the United States Supreme Court in a series of cases declared statutes of other states which were similar to Idaho's 1973 version unconstitutional, the Idaho legislature responded in 1977 with the present statutory scheme providing for inquiry into mitigating or aggravating circumstances as set forth in I.C. § 19-2515 et seq. That amendment changed the statute back to its pre-1973 language except that it omitted restoring the jury function and added the reference to I.C. § 19-2515:
"18-4004. PUNISHMENT FOR MURDER. Every Subject to the provisions of 19-2515, Idaho Code, every person guilty *478 of murder in of the first degree shall suffer be punished by death or by imprisonment for life. Every person guilty of murder in of the second degree is punishable by imprisonment in the state prison not less than ten (10) years and the imprisonment may extend to life."
Except for four states which entirely abolished capital punishment in the nineteenth century, every American jurisdiction has at least at some time employed jury sentencing in capital cases. McGautha v. California, 402 U.S. 183 , 200 n. 11, 91 S.Ct. 1454 , 1463 n. 11, 28 L.Ed.2d 711 (1971). During a period of over a century, beginning in 1838, jurisdiction after jurisdiction that retained the death penalty replaced its mandatory capital punishment law with discretionary jury sentencing, Woodson v. North Carolina, 428 U.S. 280, 291-92 , 96 S.Ct. 2978, 2985 , 49 L.Ed.2d 944 (1976) (plurality opinion). By the time of the Furman decision in 1972, Colorado was the only state in the nation to impose capital punishment without jury involvement in the sentencing process.
Despite the long history at common law and under statutory law of the states throughout this nation of involving the jury in the capital sentencing process, the Idaho legislature in the present statute enacted in 1977 totally excluded the jury from its traditional function. The legislative history shows that the legislature was not even presented with a bill which provided for jury participation. The only bill presented, was one drafted by the attorney general, Senate Bill 1082, which was presented to the legislature with the following statement of purpose:
"RS 1954
S 1082
STATEMENT OF PURPOSE
Only a few years ago, the United States Supreme Court made new "rules" concerning the imposition of the death penalty for serious crimes. So that we conformed with this U.S. Supreme Court interpretation of the federal Constitution, the Idaho Legislature enacted in 1973 our present death penalty Sections 18-4003 and 18-4004, Idaho Code.
Then, last year, the United States Supreme Court again changed the rules relating to capital punishment — after many states, like Idaho, had acted in response to its previous decision. The Court, in five cases, set forth new, more definitive rules concerning sentencing where the death penalty was sought to be imposed.
The purpose of this bill is to codify into Idaho law these present requirements imposed on the states by these most recent United States Supreme Court decisions on capital punishment so that we will conform with this latest expression of the law." (Emphasis supplied.)
The statement of purpose is misleading insofar as it suggests that the Supreme Court decisions mandated the removal of the jury from its traditional powers and functions; the United States Supreme Court never at an earlier time or in this "latest expression of the law" required jury non-involvement.
This dissent would be incomplete without a statement of some of the reasons why jury participation in the capital sentencing process is required, not only upon the basis of historical practice, but also from the standpoint of compliance with the mandates of the constitutions of the United States and the State of Idaho. An excellent presentation of these matters is set forth in appellant's brief, at pp. 69 through 80, which I adopt by reference and affix hereto as Appendix A.
Since jury participation in the capital sentencing process is part of the right to "trial by jury" as guaranteed inviolate by Art. 1, § 7 of the Idaho Constitution, I would reverse and remand for proper sentencing and would urge the legislature to amend the statutes to provide for proper jury participation in order that future capital punishment cases will not be subject to this serious defect.
II
Idaho Code § 19-2516 requires that the hearing to determine aggravating and mitigating *479 circumstances during the sentencing process must be presented by the testimony of live witnesses, that section reading in pertinent part:
"The circumstances must be presented by the testimony of witnesses examined in open court ..."
The attorneys for Mr. Creech made timely and appropriate motion to have the proceeding conducted through the use of live witnesses. The court denied the motion and took "judicial notice" of its file. The file contained letters with no foundation, a presentence report containing a mass of information (much of which was uncorroborated or unattributed), and newspaper clippings. The court also considered a transcript of a preliminary hearing which was conducted before discovery had been completed.
The position asserted by the majority that the only way to reconcile I.C. § 19-2516 (providing for witnesses) with I.C. § 19-2515 (requiring that a presentence investigation report be ordered) is illogical and a fallacious syllogism.
The two sections can be read together with the following meaning:
(1) A presentence report shall be ordered in every capital case; § 19-2515(c);
(2) Findings of aggravating and mitigating circumstances can be based upon the presentence report and representations of counsel unless either party demands a formal hearing;
(3) If requested by either party, the court must make findings of statutory aggravating and mitigating circumstances based only on a live record. § 19-2516;
(4) All evidence and the presentence report can be relied on during the weighing process.
In Mullaney v. Wilbur, 421 U.S. 684, 698 , 95 S.Ct. 1881, 1889 , 44 L.Ed.2d 508 (1975), the United States Supreme Court stated:
"Where proof of specified facts may determine whether a defendant will live or die, the constitutional requirement for the procedure controlling the proof cannot depend on the state's choice of the stage of the litigation at which the proof is to occur. If, as here, the determination of certain statutorily defined facts `may be of greater importance than the difference between guilt or innocence for many lesser crimes,' the state cannot avoid the constitutional requirements for proof of those facts `by characterizing them as factors that bear solely on the extent of the punishment.'"
Capital sentencing is qualitatively different from other sentencing proceedings, and there is therefore a need for special reliability in the proceedings. This was recognized by the United States Supreme Court in Woodson v. North Carolina, 428 U.S. 280, 305 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976):
"[T]he penalty of death is qualitatively different from a sentence of imprisonment however long. Death, in its finality, differs more from life imprisonment than a 100 year term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."
The result flowing from the majority decision today is rather a curious anomaly in Idaho law. I know of no other proceeding in district court, presided over by a district judge, and presented by attorneys, wherein hearsay and other incompetent and unreliable evidence is permitted. The one exception we now carve out for relaxed and non-professional evidentiary standards is in capital sentencing proceedings.
Perhaps to some the capital sentencing proceeding is not as important as other matters routinely conducted in our district courts — I prefer to believe that the proceedings rank very high on the scale of importance — both to the concerned defendant and to all of those who believe that one important measure of the quality of a society is the standard of fairness and procedural safeguards provided by the criminal justice system.
*480 Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), noting that the United States Supreme Court has not directly ruled on the issue, held that the capital sentencing proceeding, even though in a hearing bifurcated from the trial on guilt or innocence, is an integral part of the trial and that therefore it is required that the defendant have a right to confront and cross-examine witnesses, Proffitt, 685 F.2d at 1253 , reading as follows:
"Although the [Supreme] Court has held capital sentencing proceedings must meet certain procedural requirements, it has not yet delineated the exact scope of constitutional procedural protection to which capital defendants are entitled. See Gardner v. Florida , 430 U.S. [349] at 358 n. 9, 97 S.Ct. [1197] at 1204 n. 9 [ 51 L.Ed.2d 393 ]. Whether the right to cross-examine adverse witnesses extends to capital sentencing proceedings has not been specifically addressed by the Supreme Court and is an issue of first impression in this Circuit. We must therefore decide this question in accord with the general principles articulated by the Supreme Court in its recent death penalty decisions.
The focus of the Court's current capital sentencing decisions has been toward minimizing the risk of arbitrary decision-making. [Citations omitted.] Whereas earlier cases had focused on the quantity of information before the sentencing tribunal, recently the Court has shown greater concern for the quality of such information. Gardner v. Florida, 430 U.S. at 359 , 97 S.Ct. at 1205 . Thus, it has recognized the defendant's interest both in presenting evidence in his favor, Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982); Lockett v. Ohio, supra , and in being afforded the opportunity to explain or rebut evidence offered against him. Gardner v. Florida, 430 U.S. at 362 , 97 S.Ct. at 1207 . Reliability in the factfinding aspect of sentencing has been a cornerstone of these decisions. Id. at 359-60, 362, 97 S.Ct. at 1205; Woodson v. North Carolina, 428 U.S. at 305, 96 S.Ct. at 2991 .
In Gardner v. Florida supra , the Supreme Court held that a judge's reliance, in imposing the death penalty, on information not disclosed to the defendant or his attorney violated the defendant's rights to due process and freedom from cruel and unusual punishment. Gardner is premised on the principle that death sentences may not constitutionally be imposed on the basis of information that the capital defendant has been afforded no opportunity to rebut. [ [1] ] See id. at 362, 97 S.Ct. at 1206. The holding in Gardner narrowly viewed, simply prohibits the use of `secret information'; the Court did not in that case address the scope of the capital defendant's procedural rights in attempting to rebut information that has openly been presented to the sentencing tribunal. In reaching its decision in Gardner, however, the Court emphasized the unacceptability of the `risk that some information accepted in confidence may be erroneous, or may be misinterpreted, by the ... sentencing judge.' Id. at 359, 97 S.Ct. at 1205. Moreover, the Court expressly recognized the importance of participation by counsel and adversarial debate to eliciting the truth and `evaluating the relevance and significance of aggravating and mitigating' evidence. Id. at 360, 97 S.Ct. at 1205. The Supreme Court's emphasis in Gardner and other capital sentencing cases on the reliability of the factfinding underlying the decision whether to impose the death penalty convinces us that the right to cross-examine adverse witnesses applies to capital sentencing hearings. The Supreme Court has recognized the cross-examination as `the "greatest legal engine ever invented for the discovery of truth"' California v. Green, 399 U.S. 149, 158 , 90 S.Ct. 1930, 1935 , 26 L.Ed.2d 489 (1970) (quoting 5 J. Wigmore, Evidence § 1367 (3d ed. 1940)). *481 `The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the custodial right of confrontation, and helps assure the "accuracy of the truth-determining process." It is, indeed, "an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accomodate other legitimate interests in the criminal process. But its denial or significant dimunition calls into question the ultimate "`integrity of the fact-finding process'" [emphasis in original] and requires that the competing interest be closely examined.' Chambers v. Mississippi, 410 U.S. 284, 295 , 93 S.Ct. 1038, 1045 , 35 L.Ed.2d 297 (1973) (citations omitted).
Where expert witnesses are employed, cross-examination is even more crucial to ensuring accurate fact-finding. Since, as in this case ... information submitted by an expert witness generally consists of opinions, cross-examination is necessary not only to test the witness's knowledge and competence in the field to which his testimony relates but also to elicit the facts on which he relied in forming his opinions.
Finally, we note that the decision of the former Fifth Circuit in Smith v. Estelle, 602 F.2d 694 (5th Cir.1979), aff'd, 451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981), buttresses our conclusion that appellant had a constitutional right to cross-examine Dr. Sprehe before the doctor's report could be used in determining sentence. In Smith, we reversed a death sentence that was based in part on the testimony of a psychiatrist whose name the prosecution had intentionally omitted from its witness list. A primary basis for the decision in that case was that the prosecution's failure to disclose its intent to call the doctor prevented the defendant's counsel from conducting effective cross-examination. See id. at 699-701 & n. 7. Although the court did not specifically address whether the defendant had a constitutional right to cross-examine the psychiatrist, it concluded that his testimony, `not effectively cross-examined by the [defense attorneys,] carries no assurance of reliability whatever,' id. at 701, and hence that its use in sentencing the defendant violated the principles set forth in Gardner v. Florida . The reasoning in Smith clearly supports the view that the right to cross-examine adverse witnesses applies to capital sentencing proceedings, at least where necessary to ensure the reliability of the witnesses' testimony."[ [2] ] (Emphasis supplied.)
Since the sentencing procedure is an integral part of the trial, the defendant should be entitled in Idaho to both the participation of a jury and the right to confront and cross examine witnesses. This case should be remanded for a hearing which provides those two fundamental constitutionally mandated elements of due process and fair trial.
The magnitude and numerosity of Creech's crimes makes it unpopular and therefore difficult for me to urge any further proceedings and delay in bringing this saga to its ultimate conclusion. Nevertheless, I think more important than any one case is the preservation of our judicial process.
APPENDIX A
P. THE EIGHTH AMENDMENT'S PRINCIPLE THAT DEATH SENTENCES MUST SATISFY EVOLVING STANDARDS OF DECENCY AND THE DIGNITY OF MAN REQUIRES JURY PARTICIPATION IN CAPITAL SENTENCING.
In view of the "awesome finality of a capital case," Kinsella v. Singleton, 361 U.S. *482 234, 249 [ 80 S.Ct. 297, 305 , 4 L.Ed.2d 268 ] (1960) (Harlan, J., concurring and dissenting), the Supreme Court has repeatedly recognized the crucial role juries play in the determination whether a capital defendant merits the death sentence. Gregg v. Georgia, supra, 428 U.S. at 181-82, 190-92 [ 96 S.Ct. at 2928-2929, 2933-2934 ]; see, Duncan v. Louisiana, 391 U.S. 145, 156 [ 88 S.Ct. 1444, 1451 , 20 L.Ed.2d 491 ] (involvement of jury in capital cases reflects a "reluctance to entrust plenary powers over ... life [and death] ... to one judge or a group of judges." [25]
That the Eighth Amendment requires at least some jury participation in capital sentencing can best be appreciated by reference to the substantive Eighth Amendment standards the Court has invoked in holding that the death penalty is not invariably cruel and unusual punishment.
Basically, The Court has explained that a particular punishment is not cruel and unusual if it satisfies two criteria. First, the penalty must accord with contemporary moral and social values by reflecting "the evolving standards of decency that mark the progress of a maturing society." Gregg v. Georgia, supra, 428 U.S. at 173 [ 96 S.Ct. at 2925 ], quoting Trop v. Dulles, 356 U.S. 86, 101 [ 78 S.Ct. 590, 598 , 2 L.Ed.2d 630 ] (1958) (plurality opinion). Second, the punishment must respect "the dignity of man" by serving legitimate penological goals and by bearing a reasonably proportionate relationship to the crime for which it is imposed. Gregg v. Georgia, supra 428 U.S. at 173 [ 96 S.Ct. at 2925 ]. In holding that the penalty of death for murder does not necessarily violate these standards, the Gregg plurality's unmistakable theme was that, under the Eighth Amendment, imposition of the death penalty on a defendant must find validation in the responsible moral and social values of the community that condemns him. An essential medium of those values is the jury.
To support its conclusion that imposition of the death penalty in some circumstances could accord with "evolving standards of decency," the Gregg plurality looked to the two most reliable sources of responsible public attitudes and values: legislatures and juries. [26] Thus, even with respect to the general question whether the death penalty comports with evolving social and moral standards, the plurality found it necessary to rely on patterns of jury behavior. The plurality's emphasis on evolving standards, id. at 172-73 [96 S.Ct. at 2924-2925], suggests that this Eighth Amendment principle is organic, requiring the courts to continually refer to the moral development of American society. The courts cannot rely on legislatures alone as reflectors of responsible community values. Legislators confront capital punishment abstractly. They determine whether a society is willing to have a law permitting capital punishment, not whether the society, through the instrument *483 of the jury, is willing to carry out that law. Lockett v. Ohio, 438 U.S. 586, 625 [ 98 S.Ct. 2954, 2983 , 57 L.Ed.2d 973 ] (1978) (White, J., concurring and dissenting). [27] Moreover, a statute is static, and, as public values change, it may become a less reliable indicator than the judgment of a jury. Therefore, unless juries, one of the two essential barometers of social values, play some role in capital sentencing, the courts cannot confidently determine whether capital punishment does indeed continue to comport with responsible public views. [28]
The Eighth Amendment demands more, however, than general social approval of the death penalty as a permissible means of punishment. Because the death penalty is "so profoundly different from all other penalties," Lockett v. Ohio, supra, 438 U.S. at 605 [ 98 S.Ct. at 2965 ] (plurality opinion), the Eighth Amendment also demands individualized consideration of the propriety of the death sentence in every capital case. Ibid. Given "[t]he need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual," Ibid., state capital sentencing schemes must ensure that individual death sentences satisfy the moral demands of evolving standards of decency. See Woodson v. North Carolina, 428 U.S. 280, 303-305 [ 96 S.Ct. 2978, 2990-2991 , 49 L.Ed.2d 944 ] (1976) (plurality opinion); Godfrey v. Georgia, 446 U.S. 420, 427-28 [ 100 S.Ct. 1759, 1764-1765 , 64 L.Ed.2d 398 ] (1980) (plurality opinion). Whatever partial role the legislature can play in reflecting responsible public sentiment on the general validity of the death penalty, only a jury can ensure that a particular death sentence meets this Eighth Amendment command. As the Gregg plurality stressed, "`one of the most important functions any jury can perform in making ... a selection [between life imprisonment and death for a defendant convicted in a capital case] ... is to maintain a link between contemporary community values and the penal system.'" Gregg v. Georgia, supra 428 U.S., at 181 [ 96 S.Ct., at 2929 ] (plurality opinion), quoting Witherspoon v. Illinois, supra, 391 U.S. at 519 n. 15 [88 S.Ct. at 1775 n. 15]; see Proffitt v. Florida, 428 U.S. 242, 252 [ 96 S.Ct. 2960, 2966 , 49 L.Ed.2d 913 ] (1976) (plurality opinion).
In testing the death penalty against the second substantive Eighth Amendment requirement, the "dignity of man," Gregg stated that one of the two legitimate penological goals justifying execution was retribution. Gregg v. Georgia, supra, 428 U.S. at 183 [ 96 S.Ct. at 2929 ]. Gregg thereby reinforced the principle that the proper infliction of the death penalty is an essentially communal decision requiring a reflection of responsible communal values. [29] "Indeed, *484 the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." Gregg v. Georgia, id., at 184 [96 S.Ct. at 2930] (footnote omitted) (emphasis added). Here again, jury involvement in capital sentencing is necessary to ensure as a general matter that the death penalty properly reflects the attitude of society toward a given class of crime. But as the same plurality noted on the same day in Woodson v. North Carolina, supra 428 U.S. at 304 [ 96 S.Ct. at 2991 ], "the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." (emphasis added). Thus, a prevailing social belief in retribution must justify not only the general permissibility of the death penalty but also the infliction of the death sentence in particular cases. In this regard, the jury is indispensable in ensuring that society does indeed seek retribution against the particular defendant: "[A] jury that must choose between life imprisonment and capital punishment can do little more — and must do nothing less — than express the conscience of the community on the ultimate question of life or death." Witherspoon v. Illinois, supra, 391 U.S. at 519-20 [ 88 S.Ct. at 1775-1776 ].
Q. JUDGES ALONE CANNOT ADEQUATELY REFLECT COMMUNITY VALUES IN THE SENTENCING PROCESS
The "qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed." Lockett v. Ohio, supra, 438 U.S. at 604 [ 98 S.Ct. at 2964 ] (plurality opinion) (emphasis added). A death penalty procedure is unconstitutional if it is so unreliable that it "creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty." Id. at 605 [ 98 S.Ct. at 2965 ]. Since the Court has held that death sentences must comport with the community's sense of evolving standards of decency and its legitimate desire for moral retribution, an essential question is whether judges alone can reliably reflect the communal values that are the source of the constitutionality of capital punishment.
By definition, juries, not judges, are "the cross-section of the community," reflecting community values. Duren v. Missouri, 439 U.S. 357, 359 [ 99 S.Ct. 664, 666 , 58 L.Ed.2d 579 ] (1979). Only a representative jury assures "meaningful community participation." Ballew v. Georgia, 435 U.S. 223, 235 [ 98 S.Ct. 1029, 1036 , 55 L.Ed.2d 234 ] (1978) (plurality opinion). Jurors, unlike judges, are selected to enhance the likelihood that they represent the whole range of community beliefs and backgrounds, Taylor v. Louisiana, 419 U.S. 522, 531-33 [ 95 S.Ct. 692, 698-699 , 42 L.Ed.2d 690 ] (1975); the different segments of the community bring to the representative jury "perspectives and values that influence both jury deliberation and result," id, at 532 n. 12 [95 S.Ct. at 698 n. 12]. See Humphrey v. Cady, 405 U.S. 504, 509 [ 92 S.Ct. 1048, 1052 , 31 L.Ed.2d 394 ] (1972). Moreover the sheer difference in size between a twelve-member jury panel and a single judge may bear significantly on the validity of a sentencing decision under the Eighth Amendment. Canvassing expert empirical studies, the United States Supreme Court has concluded that the likelihood that a decision in a criminal case correctly applies "the common sense of the community to the facts" increases with the number of decisionmakers. Ballew v. Georgia, supra, 435 U.S. at 232 [98 S.Ct. at *485 1035]. [30] Twelve individuals are obviously more likely to reflect the prevailing views of society than one person. [31]
A jury need not engage in questionable speculation to determine what community sentiment would say in a particular case. Its very function is to bespeak that community sentiment by exercising its own judgment. The jury's response is society's response. Witherspoon v. Illinois, supra, 391 U.S. at 519-20 [ 88 S.Ct. at 1775-1776 ]. "The jury ... is a significant and reliable objective index of contemporary values because it is so directly involved," Gregg v. Georgia, supra, 428 U.S. at 181 [ 96 S.Ct. at 2928 ]. By contrast, judges cannot themselves speak for community sentiment. If they are to fulfill the demands of the Eighth Amendment by bringing evolving standards of decency and principles of retribution to bear in a capital punishment case, they can do so only indirectly since "[C]ourts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits." Dennis v. United States, 341 U.S. 494, 525 [ 71 S.Ct. 857, 875 , 95 L.Ed. 1137 ] (1951) (Frankfurter, J., concurring). Unable to represent community sentiment, a judge must undertake to ascertain it. That is necessarily a difficult task, [32] made even more difficult because judges — whether considered in terms of race, sex, or economic class — do not reflect the wide range of backgrounds or beliefs within the community. [33] "[T]he reluctance of juries in many cases to impose the sentence [of death] may well reflect the humane feeling that this most irrevocable sanction should be reserved for a small number of extreme cases," Gregg v. Georgia, supra, 428 U.S. at 182 [ 96 S.Ct. at 2929 ]. For a variety of reasons, judges appear less likely to reflect that same reluctance. [34]
*486 As a means of reliably reflecting community sentiment on capital punishment, bringing lay jurors into the sentencing process "`places the real direction of society in the hands of the governed ... and not in ... the government.'" Powell, Jury Trial of Crimes, 23 Wash. & Lee L.Rev. 1, 5 (1966) quoting De Tocqueville, Democracy in America 282 (Reeve Tran. 1948). Quintessentially, the right to a jury "is granted to criminal defendants in order to prevent oppression by the government," Duncan v. Louisiana, 391 U.S. 145, 155 [ 88 S.Ct. 1444, 1450 , 20 L.Ed.2d 491 ] (1968), and to protect against "arbitrary action" by the complaint, biased, or eccentric judge. Id., at 156 [88 S.Ct. at 1451]. It "reflects a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizens to one judge or to a group of judges." Ibid. [35] *487 These concerns are even more compelling where life stands immediately in the balance.
BISTLINE, Justice, dissenting.
PART I
CONSTITUTIONAL RIGHT TO JURY
Travesty. Such is my view of a majority opinion which chooses to answer a dissenting view by ignoring it. In the ordinary case it is pretty much a matter of choice to disdain comment on a contrary view, but in a death sentence case it is a travesty, and especially is this so where this Court can as a collegial group not only ascertain and apply precedent, but add saving gloss to legislative enactments.
In this year of 1983, as to the constitutional right to have a jury make the determination between life and death, the majority contentedly declares that "At other places or at other times juries have been given an integral rule in imposing the death sentence." "Other times" are in most recent times. Since creation of Territorial Idaho in 1863 and passage of the 1864 Criminal Practice Act, and continuing through the time of Idaho's admittance to the Union in 1890 and until 1973 when the first post- Furman legislature thought it was by Furman required to provide an automatic death penalty on every first degree murder conviction, death sentencing was a jury determination. The accused participated in the selection of the jury who would determine his fate. That has purportedly been taken away from the convicted murder, and his fate falls to one solitary person — who, if it were to be known, would undoubtedly rather see the question back where it always was — with a jury of twelve. This has been well documented in the dissenting opinion of Justice Huntley wherein on the strength of history and precedent he illustrates that for over 110 years it was the jury who made the decision of death or life. His assertion that the right of an accused to have a jury impose the sentence of death flows from the Idaho Constitution is beyond conscionable dispute. A majority of the Court, obviously unable to mount a tenable attack on that assertion, say only that that elimination of the jury function is a mere matter "of the legislative policy," — from which point their opinion quickly digresses into an exaltation of the common qualities of Idaho trial judges who, unlike their federal counterparts, realize "that their positions are anything but lifetime sinecures." A position of vulnerability to popular emotions is not necessarily a plus.
Having joined Justice Huntley's opinion, there is little reason for further espousing that which he had laid before the majority. But, having read in the majority opinion that they have "conducted an extensive and thorough review of Idaho murder cases," I, too, have deemed it appropriate to review those cases listed in footnote 2 of the majority opinion, and I have gone back to include in my survey some of those early cases which wholly substantiate Justice Huntley's declaration that it was ever, both prior to statehood and afterward, clearly the right of the people and of the accused to have a jury determination.
In People v. Walters, 1 Idaho 271 (1869), the defendant was charged with murder in the first degree. The jury, knowing that a first degree conviction required execution, recommended the mercy of the Court.
*488
Notwithstanding the jury's recommendation, the Court followed the mandate of the law.
*489 In 1870 a territorial jury convicted the defendant of first degree murder, and accordingly he was executed. People v. Ah Choy, 1 Idaho 317 (1870). In 1874 another territorial jury convicted another defendant of first degree murder, and he, too, suffered judgment of death. People v. Waters, 1 Idaho 560 (1874). Three years later four defendants charged with first degree murder escaped the noose upon jury convictions of second degree murder. People v. Ah Hop, Yung Sing, Ah Pong, and Hung Chu. 1 Idaho 698 (1878).
In 1877 the territorial legislature in recodifying statutory law, revised the statute declaring the penalty for murder to read as it did until a 1919 amendment, other than for designation of the "Territorial Prison" instead of "State Prison." In 1901, in enacting the Idaho Code Annotated, following admission to the Union, the language was then changed to "State Prison" — but all this time there was no change in the penalty for first degree murder, which was death, and it was mandatory.
So, in the transition from territory to statehood, although the typewriter had by then replaced the pen, it was still the jury that made the determination. Conviction of first degree murder meant death. A jury not so disposed could circumvent the death penalty only by returning a verdict of guilty of second degree murder. Thus, in State v. Perry, 4 Idaho 224 , 38 P. 655 (1894), following admission into the Union, the jury's verdict was:
"We, the jury in the above entitled action, find the defendant guilty of murder of the first degree.
H.L. Beeroft, Foreman."
And, as before statehood, the penalty was death:
"`That, whereas, the said Charles Perry, having been duly convicted of the crime of murder of the first degree;
"`It is therefore ordered, adjudged and decreed that the said Charles Perry be taken from this Courtroom to the County Jail of this, Bannock County, State of Idaho, and that he be there held until the 28th day of September, A.D., 1894, and that upon said day, between the hours of nine o'clock A.M., and four o'clock P.M., within the walls of said jail, or at some convenient private place within the said Bannock County, and in the manner made and provided by the Statutes of this State in such case, he, the said Charles Perry, be hung by the neck until he is dead.' And the Sheriff of Bannock County, Idaho, is hereby directed to enforce the execution of this judgment. D.W. Standrod, Judge."
In 1911 the statute governing the penalty for first degree murder was changed to read as it continued to read until amended after Furman . The penalty now became either death or life imprisonment, and the jury continued to make that decision. Had it so read in 1864, with discretion in the jury, Simeon Walters would not have been executed. In 1910, Fred Gruber, too, was executed, the last person whose fate was decided by a jury which had no discretion where it did render a verdict of murder in the first degree. The jury's verdict in Gruber's case:
"We, the jury, duly empaneled and sworn to try the above entitled cause, for our verdict say:
"That we find the defendant, Fred Gruber, guilty of the crime of murder of the first degree as charged in the information.
T.J. McAndrew, Foreman."
The judgment of the Court:
"that the said defendant, Fred Gruber, be taken hence to the County Jail of the County of Kootenai, State of Idaho, and from there forthwith conveyed and taken to the State Penitentiary of the State of Idaho, in the County of Ada, State of Idaho, and that on the 20th day of May, A.D. 1910, between the hours of eight o'clock in *490 the forenoon and two o'clock in the afternoon of said day, within the walls of the said State Penitentiary of the State of Idaho, the said defendant, Fred Gruber shall by the warden of the State Penitentiary of the State of Idaho, be hanged by the neck until he, the said Fred Gruber shall be dead, and may the Lord have mercy on your soul."
The Gruber execution may have been unpopular. At any rate, the next legislature amended the statute to provide that the jury could decide between punishment by death or by life imprisonment. [1] The statute remained unchanged until after Furman , and it is helpful to note the manner in which the jury continued to administer its sentencing function as part and parcel of the defendant's right to such determination.
Vicente Ramirez appears to be the first defendant convicted of first degree murder after the jury was given the alternative between a life sentence of death. In his case, in their own language the jurors fixed his penalty at execution. State v. Ramirez, 33 Idaho 803 , 199 P. 376 (1921). [2] The jury did not do so with his co-defendant whom they also convicted of first degree murder.
State v. Hoagland, reviewed in the majority's survey, was tried in early 1923. The jury's verdict:
"We, the jury, duly sworn and empanelled in the above entitled cause, find the defendant David L. Hoagland guilty of murder in the first degree, as charged in the information, and fix the penalty at death.
J.W. Pottenger, Foreman."
In accordance therewith he was executed.
Other first degree murder verdicts after 1911 in cases cited in the majority's review are, in inverse order, but in chronological order forward:
"We, the jury, duly impanelled and sworn to try the above entitled cause, for our verdict say that we find the defendant guilty of the crime of murder in the first degree, as charged in the information on file herein, and fix his punishment as imprisonment in the State prison for life.
J.A. Stoner, Foreman."
State v. Redding [ Reding ], 52 Idaho 260 , 13 P.2d 253 (1932).
"We, the jury, empanelled in the above entitled cause, find the defendant, Douglas Van Vlack, guilty of murder in the first degree, as charged in the information, and fix his punishment at death.
W.S. McGowen, Foreman."
State v. Van Vlack, 57 Idaho 316 , 65 P.2d 736 (1936).
"We, the Jury in the above entitled cause, find the defendant, Ralph Golden, guilty of murder of the first degree, and we decide that the punishment to be inflicted shall be imprisonment in the state prison for life.
Fay H. Rose, Foreman."
State v. Golden, 67 Idaho 497 , 186 P.2d 485 (1947).
"We, the jury in the above entitled cause, find the defendant William Lawrence Owen guilty of murder of the first degree. We decide that the punishment to be inflicted shall be death.
D.L. BUSH, Foreman."
State v. Owen, 73 Idaho 394 , 253 P.2d [203] 394 (1953).
"We, the jury in the above entitled action, find the defendant Robert Clokey GUILTY OF MURDER OF THE FIRST DEGREE, as charged in the Information, and recommend as punishment therefor the DEATH PENALTY.
Chet Moulton, Foreman."
*491 State v. Clokey, 83 Idaho 322 , 364 P.2d 159 (1961).
"WE, THE JURY, duly impaneled in the above-entitled action, find the defendant Guilty of Murder of the First Degree, and fix the punishment as imprisonment in the State Prison for life.
JAMES F. CAREY, Foreman."
State v. Gonzales, 92 Idaho 152 , 438 P.2d 897 (1968).
"We, the Jury in the above entitled case, find the defendant guilty of Murder in the First Degree as charged in the Information.
"We further find that the defendant shall be punished by imprisonment in the Idaho State Penitentiary for life.
James W. Buckley"
State v. Foley, 95 Idaho 222 , 506 P.2d 119 (1973).
State v. Foley , involving a pre- Furman crime, appears to have been the last murder case where the jury had the discretion to decide between life imprisonment or death. Furman then intervened, following which the legislature returned to the law as it was prior to 1911 — a mandatory death penalty upon conviction of first degree murder. As pointed out in the majority opinion, some death sentences were imposed, but were set aside upon the authority of Woodson v. North Carolina, 428 U.S. 280 [ 96 S.Ct. 2978 , 49 L.Ed.2d 944 ] (1976). The legislature responded by returning to the law as it was following the 1911 amendment. The penalty was set at either death, or, imprisonment for life. I.C. § 18-4004 as amended by Ch. 154, § 3, Sess. Laws 1977. The legislature, however, was unmindful of the constitutional right to a jury determination, and passed the Act as presented to it by the attorney general. [3]
Since the passage of the 1977 Act the Court has received eight appeals from imposed death sentences. The case now before us is the second. The first was State v. Osborn, 102 Idaho 405 , 631 P.2d 18 (1981), wherein Osborn's judge-imposed sentence, as per the 1977 Act, was reversed and the cause remanded for resentencing in accordance with the views expressed in the Court's opinion — an opinion which I did not join. The district court, the Honorable Arthur P. Oliver, flatly refused to again consider the imposition of a death penalty, for reasons which I shall shortly lay out and discuss. The attorney general acquiesced in the district court's refusal by not challenging it, and in that first application of the 1977 Death Penalty Act, precedent has been set which strongly suggests the desirability of the pre- Furman statute which placed the death or life determination upon the shoulders of twelve jurors.
Osborn, after initially pleading not guilty, moved the trial court to withdraw that plea, and enter a plea of guilty to first degree murder. His attorney did not at any time, either in the trial court or on the appeal, express any thought that Osborn was constitutionally entitled to a jury determination as to his guilt, and, if guilty, then as to his fate. Hence there was no consideration of that issue in the Osborn opinions. The right to jury involvement at sentencing has been raised for the first time in this case, and even as I pen my views, counsel for Mr. Creech has filed in this Court a motion for an order vacating the sentence and judgment *492 herein, and at the same time moving this Court to allow him to withdraw his guilty plea. [4]
Concluding my views on the constitutionality of the present statutory scheme under which Mr. Creech was sentenced to death without proper regard for the Idaho Constitution which declares in Article I, Declaration of Rights, that "The right to trial by jury shall remain inviolate, ..." § 7 (the major portion of which deals with criminal actions), I pause to say that I, as one person, and most likely Mr. Creech and his counsel as others interested, would be grateful in the extreme were the majority to, in their opinion, explain the error they find in Justice Huntley's proposition that:
"The provisions of the constitution pertaining to the right to trial by jury are construed to apply as it existed at the date of the adoption of the constitution. "
Justice Huntley did not create and then advocate the proposition, but rather simply stated it as a well-entrenched principle in our Idaho jurisprudence. To my understanding it is a general rule recognized in all jurisdictions.
If that were not enough persuasion to at least evoke a response from the majority, there is also the teaching of State v. Miles, 43 Idaho 46 , 248 P. 442 (1926) where a unanimous Court, a bare 36 years after statehood, stated:
"The rule is well established that the guaranty of right of trial by jury secures that right as it existed under the common law and territorial statutes in force at the date of the adoption of our Constitution." 43 Idaho at 49 , 248 P. at 442 (citations mooted).
The proposition involved had been earlier examined in an opinion by Justice Ailshie, regarded by many as Idaho's foremost Justice, in a case wherein it was contended by the attorney general that the Board of Pardons, as established in the 1899 Constitution, could "impose any conditions whatever upon the granting of a parole." Art. 4, § 7 (since amended). In passing on the question presented, the Court observed the delineations of governmental power:
"There can be no doubt but that, under the Constitution and statute as above cited, the board of pardons may, upon the granting of a pardon, commutation or parole, attach such conditions as they see fit, so long as they are not immoral, illegal or impossible of performance, provided they are to be kept and performed or complied with during the term for which the prisoner was sentenced by the judgment of the court. Under our Constitution it is the duty and prerogative of the legislative department to define crimes and fix the maximum and minimum penalty that may be imposed for the commission thereof. It is the duty of the judicial department to try offenders against those laws, and, upon conviction, to sentence them under the statute. Under the laws of this state, there is no such thing as an indefinite or indeterminate sentence as is provided for in many of the states from which authorities have been cited by the Attorney General. In this state the sentence and judgment of the court must be specific, certain, and definite. The board of pardons belongs to the executive department of the state, and its privilege and prerogative is that of granting clemency. It is a board of clemency, rather than a punitive body. Instead of pronouncing judgment and sentence, and imposing punishment, its prerogative and authority is that of forgiving offenses and remitting penalties, wiping out judgments and sentences of conviction either in whole or in part." (Emphasis added.) In re Prout, 12 Idaho 494, 498-99 , 86 P. 275, 276 (1906).
In the interim between Prout (1906) and Miles (1926), there was yet another case, In re Dawson, 20 Idaho [178] 180, 117 P. 696 (1911), wherein our predecessors on this *493 Court again paused to dwell upon our criminal justice system and the function of a jury under the Idaho Constitution. It was not a capital case, but a felony charge of larceny, to which the defendant pleaded guilty five days after he was charged, whereupon he was sentenced to the penitentiary — wherefrom by habeas corpus petition he sought his release on two grounds, one of which was that the right to jury trial provision found in the Idaho Constitution precluded the court's jurisdiction to commit him to the penitentiary on a guilty plea. In passing upon that contention, the Court made these observations:
"The language used in sec. 7 of article 1 of the Constitution was no doubt intended to preserve to the citizens of the state the right of trial by jury as it existed under the common law, and such right is retained in all cases which were triable by jury at common law... . `[W]herever a right to this trial is guaranteed by the Constitution without qualification or restriction, it must be understood as retained in all those cases which are triable by jury at common law, and with all the common-law incidents to a jury trial so far at least as they can be regarded as tending to the protection of the accused. '"
Id. at 182, 117 P. at 697 (quoting Cooley, Constitutional Limitations, 7th ed., p. 453) (emphasis added).
The Court in Dawson further elaborated that:
"[T]he right of every one to have his cause tried or to be tried himself if accused of crime by a jury is guaranteed and established beyond the power of the Legislature to abridge it... . `The trial by jury, secured to the subject by the Constitution, is a trial according to the course of the common law, and the same, in substance, as that which was in use when the Constitution was formed. '"
Id. at 184, 117 P. at 698 (quoting East Kingston v. Towle, 48 N.H. [57] 64) (emphasis added).
It is clear, then, that the right to trial by jury must be examined in light of the practices at common law and the statutes of Idaho when our constitution was adopted and approved by the citizens of Idaho. In territorial Idaho and in statehood until 1911, as at common law, the uniform practice was to make death the exclusive and mandatory sentence for certain specified offenses. Woodson v. North Carolina, [ 428 U.S. 280 ], 96 S.Ct. 2978, 2983 [ 49 L.Ed.2d 944 ] (1976) (citing H. Bedau, The Death Penalty in America, 5-6, 15, 27-28 (rev. ed. 1967)). A jury in the Territory of Idaho by convicting a person of first degree murder therefore also determined the punishment to be imposed — death. The judge's role was merely to pronounce the judgment, a matter in which he had no discretion. Such was the statutory law since 1864, and even with some non-capital cases, the legislature placed "a duty upon the court ... to impose the punishment prescribed." R.S. 1877, § 6306 — now I.C. § 18-106. ( See In re Erickson, 44 Idaho 713 , 260 P. 160 (1927).) Idaho followed the common-law practice of giving the jury the role of sentencer in capital cases — the jury being statutorily given the exclusive power to determine when the death penalty would be imposed. As has been seen, Section 17 of the Idaho Criminal Practice Act of 1864, set forth in Justice Huntley's dissent, provided that:
"[T]he jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree; ... Every person convicted of murder of the first degree, shall suffer death; and every person convicted of murder in the second degree, shall suffer imprisonment in the territorial prison for a term not less than ten years, and which may be extended to life." (Emphasis added.)
In 1887, a mere three years before the Idaho Constitution was adopted and approved, the Idaho Revised Statutes provided that:
"Sec. 6563. Every person guilty of murder in the first degree shall suffer death, and every person guilty of murder in the second degree is punishable by *494 imprisonment in the Territorial prison not less than ten years, and the imprisonment may extend to life."
Idaho Revised Statutes, Title VII, ch. 1, § 6563 (emphasis added).
At that same time the trial jury's function was set out thus:
"Sec. 3938. A trial jury ... is a body of men . .. sworn to try and determine by a unanimous verdict a question of fact. "
Idaho Revised Statutes, Title VII, ch. 1, § 3938. (Emphasis added.)
It was a question of fact whether a person was guilty of murder in the first or the second degree. This determination could only be made by a jury and it could only be made by a unanimous jury. Since the time the Territory was created, it took a unanimous vote of twelve jurors to determine that a person was to die.
The 1887 Revised Statutes of the Territory specifically distinguished between those cases in which the judge could exercise his discretion in meting out punishment and those in which the punishment was determined by the jury as a result of its verdict of guilty for a specified crime. [5] See R.S. 1877, §§ 6306, 6307 (now I.C. §§ 18-106, 18-107. R.S. 6307 was amplified by R.S. 7992.)
"Sec. 7992. After a plea or verdict of guilty, where a discretion is conferred upon the court, as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct." (Emphasis added.)
Now I.C. § 19-2515 (amended in 1977.)
The common-law practice of England, and the practice codified in 1864 and 1887, of requiring jurors to determine whether a sufficient crime was committed to warrant the imposition of the death penalty, was preserved by the Idaho Constitution, art. 1 § 7 and also by art. 21, § 2, as readily confirmed by reading the Proceedings of the Idaho Constitutional Convention.
The Proceedings of the Constitutional Convention revolving around art. 1 § 7 shed further insight as to the intent of the framers, leaving no doubt as to the verity of the above statements of the Court in Miles, Prout, and Dawson. It was proposed by Mr. Claggett that a verdict could be rendered by a majority of 5/6 of the jurors "in all criminal actions except where the death penalty is imposed by law." Idaho Constitutional Convention Proceedings and Debates, p. 151. The framers rejected his proposal and ultimately adopted the provision now in force which allows for less than unanimous verdicts only in non-felony cases.
In reviewing their recorded considerations of that issue, we are fortunate today to have irrefutable evidence that those public leaders, of whom nearly one-half were practicing lawyers (Vol. I, Idaho Constitutional Convention, p. 160), were acutely aware that § 7 of Article I would guarantee forever that the legislature could not impinge upon the right of an accused to have a jury of his fellow men make the death penalty decision. Mr. Heyburn said it with an eloquence befitting a Thomas Jefferson or a James Madison:
"Mr. Chairman, I cannot agree with the gentleman in regard to the wisdom of changing entirely the system that is as old as government itself, that no man shall be deprived of his rights, of his liberty or his life, except by a unanimous verdict of a jury of his fellow citizens who have no interest other than to see that justice is done him. This principle has been deemed so important that at one time the demand that man should be protected by right of trial by jury revolutionized the civilized world... . It is the strong arm of the law that stands between the weak and the strong, between *495 rich and poor, between oppressed and oppressor... . [I]t is still not necessary for us to say that less than a unanimous verdict shall deprive any man of either his liberty or his personal rights. We cannot afford in the interest of economy nor in the interest of speedy justice — or of speedy trial, more properly speaking — to lessen by one hair's breadth the safeguard, the insurance every man has that his property or his rights will not be taken away from him, unless it is clear, beyond a reasonable doubt that they do not belong to him, and that that reasonable doubt is to be determined by a unanimous verdict. "
Id. at 152-53 (emphasis added).
Although Mr. Claggett, the sponsor of the proposed 5/6 majority rule proposal contended that the requirement of unanimous verdicts in criminal cases paralyzed the law enforcement power of the state, even he recognized that capital cases are unique:
"MR. CLAGGETT... . We all know the defendant has every benefit from reasonable doubt. We all know he has a double advantage in impaneling the jury. We all know that when there has once been a verdict of acquittal he cannot be called in question again, no matter how wrong the verdict may be. And we all know in addition that the court has power to suspend judgment on the verdict after conviction, in order that application may be made to the governor for pardon in any case which may arise now and then, where the conviction is wrong, or where, if not wrong, the punishment is too severe, so that there is ample opportunity given before the execution of the judgment of the court for a review of the case by the governor or board of pardons. Now I ask whether all these things taken together, one and all, do not constitute too much advantage on the part of the defendant, and whether the strong arm of the state, which is stretched out and whose function is to protect the people, is not paralyzed by this system of a unanimous verdict.
"Mr. BATTEN. I will ask you, why make an exception in capital cases?
"Mr. CLAGGETT. Out of mere tenderness to human life, and because if the death penalty is once inflicted you can never rectify the error, but on the question of imprisonment you have the entire term of his imprisonment to correct it."
Id. at 251 (emphasis added).
....
"Mr. AINSLIE ... I say it is legitimate in civil proceedings that a jury of three-fourths should find a verdict. I believe it will facilitate litigation and dispatch many suits a great deal quicker than by having a unanimous verdict. But when we come to the life and liberty of the citizen, whether it means imprisonment in the county jail or ninety and nine years in the penitentiary, I say we should pause and be governed to a large extent by the experience of those who have gone before us... . [A]nd you will find that they have never yet undertaken to advocate the doctrine that five-sixths of a jury should find a verdict in a criminal case. Therefore I oppose the motion made by the gentleman from Shoshone, and I hope this body will not adopt it." Id. at 258.
Clearly the right, indeed the safeguard, to have a jury of fellow citizens make the decision of death was foremost in the minds of the framers when they assembled in the year 1899 and drafted the Constitution of Idaho which was accepted by the people and the Union.
From 1864 until 1977 imposition of the death penalty in Idaho has not been a function of trial judges. During that period of time the legislature set the penalty and the judge merely pronounced judgment accordingly. If the jury returned a verdict of guilty of first degree murder, the judge was under a duty to pronounce a judgment that the defendant suffer the death penalty. This is exemplified nicely in People v. Walters, supra , where the Territorial judgment on the verdict of guilty of first degree murder stated "The Judgment of this court and the sentence of the law is ..." Nor was there any room for discretion in the *496 court. Although the Revised Statutes of 1877 § 639 provided for an aggravation-mitigation hearing, it had no applicability where the verdict in a first degree murder case was guilty of first degree murder. Obviously that procedure would not have withstood scrutiny under decisions of the United States Supreme Court which were handed down in 1972 and 1977.
A forerunner in many areas of criminal law, in 1911 the legislature did give the jury some leeway in capital sentencing, and from that time on until the legislature acted again in 1972, the jury, as a component part of the court ( see State v. Ramirez, 34 Idaho 623 , 203 P. 279 (1921),
"the jury, in a case triable by a jury, is as much a part of the court as the judge. Each has certain legal duties and functions, and the combined action of the jury and the judge makes up and merges in the final judgment. The action of the jury in imposing the death penalty merged in the judgment and became a part of the decision of the court." (Emphasis added.)
34 Idaho at 634 , 203 P. at 283 .
became vested with the same discretion that judges had in non-capital cases where the legislature had not set a mandatory penalty. So, and as has been now well pointed out, from and after 1911 the jury, upon convicting a defendant of first degree murder would decide between imposing a sentence of death or a sentence of life imprisonment. Done away with, at that early time, then, was the mandatory death sentence which would over fifty years later in the seventh decade of the twentieth century be held offensive as violative of the Constitution of the United States.
Becoming then applicable were those provisions enacted in 1877 and now codified as I.C. § 19-2515(a), which, prior to 1977 read exactly as it had read for 110 years, and provided for the presentation of evidence on circumstances both mitigation or aggravation of the punishment. In this manner the Idaho procedure governing the death penalty had all of the requisite features which the Supreme Court of the United States would later require — other than, perhaps guidelines.
But even there, although the legislature did nothing toward providing criteria for the juries to consider in deciding between life sentences and death sentences, the courts of Idaho were not remiss.
Time constraints in meeting the rules of this Court for issuing opinions — with death penalty cases in no way distinguished from run-of-the-mill monetary judgments in small claims court — prevent an exhaustive review, but suffice it to say that my personal knowledge is that trial judges in Idaho have properly instructed the jury. An example which is preserved in our Idaho Reports by reason of a challenge to such instructions is State v. Clokey, supra . The trial court instructed the jury that certain evidence had been admitted "not for the purpose of establishing or tending to establish the guilt or innocence of this defendant ... but is relevant and may be considered by you only as it may assist you in arriving at the punishment to be inflicted upon the defendant should you find him guilty of murder in the first degree." The Court used the opportunity of Clokey to remind the trial bench and bar that in such cases, where there is exercisable discretion in sentencing, evidence should be admitted in mitigation and aggravation — solely going to the determination of punishment:
"The first paragraph of said instruction informs the jury that in the event they find the defendant guilty of murder of the first degree they may then determine whether the penalty to be imposed shall be death or confinement in the state penitentiary for life. Such instruction is in conformity with I.C. § 18-4004. Said instruction then calls attention to the evidence which was adduced during the trial regarding the background and history of the defendant and his experiences and behavior in matters not related to the alleged crime for which he was being tried.
"In this connection evidence was introduced by and on behalf of appellant *497 showing appellant's place and date of birth; that his father died when he was between five and seven years old; that he was mistreated when a boy at home; that in 1929 he was found guilty of first degree robbery and as punishment therefor served three years and seven months in San Quentin prison; during the years that followed he worked at four or five different trades or occupations; that he suffered a serious accidental injury while working in the mines; that he had been convicted of reckless driving and drunken driving during the past two years and that he had a hit and run charge pending at the time of this trial; that his son became involved in trouble and was committed in the Industrial Training School at St. Anthony, Idaho; that after the son returned to the home appellant and his son got into a fight, shortly after which his wife, Betty Clokey, obtained a divorce.
"Such evidence is unrelated to the crime here charged and it is such evidence of biographical facts that the court refers to in said instruction No. 16. It is evidence regarding the background and history, the experiences and behavior of appellant which the jury may consider only as it may assist them in arriving at the punishment in the event the jury finds defendant guilty of murder of the first degree.
"One of the reasons for permitting the introduction of evidence of biographical facts where such facts are unrelated to the offense charged is that the law recognizes that previous good or bad conduct should be considered in fixing punishment for crime. Our statute provides the court with discretionary power to consider circumstances in aggravation or mitigation of punishment as follows:
"`After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.' I.C. § 19-2515.
"I.C. § 19-2516 requires that the hearing be had in open court.
"This Court has considered the language used in I.C. § 19-2515 and has stated that:
"`It may be open to debate as to whether the "circumstances" mentioned in § 19-2515, I.C., refer particularly to circumstances surrounding the commission of the crime and tending to aggravate or mitigate the character of the conduct involved, or whether such circumstances include also the convict, himself, as an individual, which would include his background, his age, upbringing and environment or any other matter appropriate to a determination of the degree of culpability. We think that the statute should be given the broader interpretation, particularly in a capital case. James v. State, 53 Ariz. 42 , 84 P.2d 1081 .' State v. Owen, 73 Idaho 394 , 253 P.2d 203, 207 .
"This Court has also determined that in cases where the jury may fix the punishment it should have opportunity, under proper instructions, to consider circumstances in aggravation or mitigation of the punishment.
In State v. Owens, supra, this Court said:
"`It, therefore, appears that the law contemplates that in fixing the penalty, the court, when requested by either party, may and should hear and consider circumstances in aggravation or mitigation of the punishment. It logically follows that if it is proper for the court to hear and consider such evidence, the jury where it is called upon to fix the punishment, should have the opportunity to consider such proof, subject, of course, to a proper instruction limiting the jury's consideration *498 of such evidence to the determination of punishment, and cautioning that it is not to be considered in determining guilt or innocence, or be allowed to influence the determination of that question.'"
State v. Clokey, 83 Idaho at 327-28 , 364 P.2d at 162-63 .
In State v. Owen, supra , quoted in the above excerpt from Clokey , the trial court sustained the State's objection to the defendant's evidence offered "to show facts and circumstances of defendant's age, upbringing and environment for the purpose of mitigating punishment." 73 Idaho at 401 , 253 P.2d at 207 . The ruling of the trial court was held to be error, but on a four-one decision of this Court, a new trial was not ordered; instead, by a three-two split of the Court, which held that there had been a fair trial on the issue of guilt, the death penalty sentences of the jury were commuted to life imprisonment. 73 Idaho at 420-21 , 253 P.2d at 219-20 . The Owen court's opinion should have made it clear to the trial bench and bar that charges of first degree murder would encompass, at the same time, a trial of the guilt issue and a trial of the punishment issue:
"However, the law does recognize that previous good or bad conduct should be considered in fixing the punishment for crime. Such is the underlying principle of the persistent violator statute. § 19-2514, I.C. The courts have long recognized that the first offender should be accorded more lenient treatment than the habitual criminal. In addition to considerations of humanity, justice and mercy, the object is to encourage and foster the rehabilitation of one who has for the first time fallen into error, and whose character for crime has not become fixed. State v. O'Dell, 71 Idaho 64 , 225 P.2d 1020 .
"Our statute also provides the court with discretionary power to consider circumstances in aggravation or mitigation of punishment, as follows:
"`After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.' § 19-2515, I.C.
"And § 19-2516, I.C., requires that the hearing be had in open court. It may be open to debate as to whether the `circumstances' mentioned in § 19-2515, I.C., refer particularly to circumstances surrounding the commission of the crime and tending to aggravate or mitigate the character of the conduct involved, or whether such circumstances include also the convict, himself, as an individual, which would include his background, his age, upbringing and environment or any other matter appropriate to a determination of the degree of culpability. We think that the statute should be given the broader interpretation, particularly in a capital case. James v. State, 53 Ariz. 42 , 84 P.2d 1081 .
"It, therefore, appears that the law contemplates that in fixing the penalty, the court, when requested by either party, may and should hear and consider circumstances in aggravation or mitigation of the punishment. It logically follows that if it is proper for the court to hear and consider such evidence, the jury where it is called upon to fix the punishment, should have the opportunity to consider such proof, subject, of course, to a proper instruction limiting the jury's consideration of such evidence to the determination of punishment, and cautioning that it is not to be considered in determining guilt or innocence, or be allowed to influence the determination of that question. The offer of proof in behalf of the defendant Owen is as follows:
"`Mr. Doane: Comes now the defendant William Lawrence Owen and *499 offers to prove by the present witness that the defendant William Lawrence Owen was born in Tannover, California, on October 2, 1911, in a family consisting of his mother and father, one sister and one twin brother; that his father's occupation was that of a railroad foreman; that his nationality was Welsh and half-breed American Indian; that his mother was a full-blooded American Indian of the Wylacki tribe in northern California; that in the year 1917 when the defendant was of the age of six years his mother died; that the defendant had no real home life in the ordinary meaning of the term, and lived from time to time with his siter and other relatives; that he completed his formal schooling at the age of fourteen and thereupon proceeded to provide for himself, and his first major occupation was that of deck boy on a sailing vessel, upon which vessel he served for two and a half to three years; that since that experience at sea the defendant learned foundary moulding as his trade and has followed that trade ever since that time, and just prior to his coming to the State of Idaho, approximately two weeks before the date of September 7, 1951, was so engaged in his occupation.'
"The offer made by defendant Hastings consists of a lengthy recital of his military service in the United States Army commencing with his voluntary enlistment on July 9, 1940, and ending with his discharge in July, 1945. It contains a detailed statement of the different periods and places of service, engagements in which he or his unit participated, time, place and manner of wounds suffered and of decorations conferred, and also as to decorations and citations conferred upon the regiment, battalion and division in which he served. Except for his military record, he offered

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2604767. Public record. Not legal advice.