Stuart v. State

JOHNSON, Justice,

concurring and dissenting.

I concur with the majority concerning the use of the preliminary hearing testimony in sentencing and concerning the allegations of newly discovered evidence. I dissent from the majority’s decision to affirm the trial court’s dismissal of that portion of Stuart’s post conviction petition in which he alleges that the state offered not to recommend the death penalty if he would plead guilty to first degree murder by torture.

The majority agrees with the trial court’s conclusion that there was no merit to Stuart’s contention that, by entering into negotiations, his constitutional right to jury trial was violated. The rationale for both the trial court’s decision and the majority’s opinion is that Stuart did not accept the proposed plea bargain and that the sentencing court would not have been bound to accept the plea bargain in any event. In my view, when the prosecutor offered not to seek the death penalty, Stuart was impermissibly forced to choose between exercising his constitutional right to a jury trial and proceeding to sentencing with the prosecutor’s recommendation that he not be sentenced to death. By choosing to assert his constitutional right, Stuart was penalized when the prosecutor recommended the death penalty following his conviction.

In his affidavit in support of Stuart’s petition for post conviction review Stuart’s attorney stated that on several occasions the prosecutor offered to withdraw his request for imposition of the death penalty if Stuart would agree to plead guilty to a charge of first degree murder by torture. In his unverified response the prosecutor stated that to the best of his recollection this offer was never made. Because it was not verified or in affidavit form, this response did not controvert the allegation of the petition concerning the proposed plea bargain. The facts stated in the affidavit of Stuart’s attorney should have been considered as being true for the purpose of determining whether to dismiss the petition. Cooper v. State, 96 Idaho 542, 545 , 531 P.2d 1187, 1190 (1975).

In my view, a proposed plea bargain in which a prosecutor proposes not to seek the death penalty must be treated differently than any other proposed plea bargain. Where the state seeks the imposition of the death penalty we should impose the strictest standard of review to determine whether the state has violated the rights of the defendant. Death penalty cases impose a special duty on us. This court has held that we must review a death sentence “qualitatively different than our review of an ordinary criminal sentence.” State v. Scroggins, 110 Idaho 380, 387 , 716 P.2d 1152, 1159 (1985). Justice O’Connor of the United States Supreme Court has recently pointed out:

Under the Eighth Amendment, the death penalty has been treated differently from all other punishments. See, e.g., California v. Ramos, 463 U.S. 992, 998-999 , and n. 9, 103 S.Ct. 3446, 3451-3452 , and n. 9, 77 L.Ed.2d 1171 (1983). Among the most important and consistent themes in this Court’s death penalty jurisprudence is the need for special care and deliberation in decisions that may lead to the imposition of that sanction. The Court has accordingly imposed a series of unique substantive and procedural restrictions designed to ensure that capital punishment is not imposed without the serious and calm reflection that ought to precede any decision of such gravity and finality.

Thompson v. Oklahoma, 487 U.S. 815, 856 , 108 S.Ct. 2687, 2710 , 101 L.Ed.2d 702, 733 (1988). While these cases did not address a death penalty defendant’s rights to jury trial and to due process of law, we should apply the same degree of special care in determining whether those rights have been violated.

In United States v. Jackson, 390 U.S. 570 , 88 S.Ct. 1209 , 20 L.Ed.2d 138 (1968), the Supreme Court struck down the death penalty provision of the Federal Kidnaping *874 Act because the death penalty could be imposed only if the defendant exercised the right to jury trial and was convicted. It could not be imposed if the defendant waived the right to jury trial or pled guilty. The Court stated:

Whatever the power of Congress to impose a death penalty for violation of the Federal Kidnaping Act, Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right.

390 U.S. at 583 , 88 S.Ct. at 1217 , 20 L.Ed.2d at 147 .

In a later case not involving the death penalty the Court declined to apply Jackson to invalidate a more severe penalty imposed because the defendant chose to have a jury trial. In doing so the Court said that “the pressures to forgo trial and to plead to the charge ... are not what they were in Jackson.” Corbitt v. New Jersey, 439 U.S. 212, 217 , 99 S.Ct. 492, 495 , 58 L.Ed.2d 466 (1978). The Court focused on the fact that “the death penalty ... is ‘unique in its severity and irrevocability,’ Gregg v. Georgia, 428 U.S. 153, 187 , 96 S.Ct. 2909, 2931 , 49 L.Ed.2d 859 (1976).” Id.

In Bordenkircher v. Hayes, 434 U.S. 357 , 98 S.Ct. 663 , 54 L.Ed.2d 604 (1978), the Court held that the due process clause of the fourteenth amendment was not violated when a prosecutor carried out a threat made during plea negotiations to have the accused reindicted on more serious charges, if he did not plead guilty to the offense with which he was originally charged. The death penalty was not involved in Bordenkircher. Jackson and Corbitt convince me that if the death penalty had been involved in Bordenkircher the Court would have held that the actions of the prosecutor did violate the defendant’s rights to jury trial and due process. I would apply that principle to this case.

Following the verdict in this case the trial court requested the prosecutor to advise the court whether he would seek the death penalty at the time of sentencing. The prosecutor told the judge: “I anticipate that as a possibility, your Honor. I need to research the Statute. I had not done that prior to finding — .” Transcript at 973, State v. Stuart, No. 14865 (the direct appeal). The prosecutor subsequently filed a notice of intent to request the death penalty and sought the death penalty at the time of sentencing.

I would reverse the trial court’s dismissal of the post conviction petition as it relates to the allegation that prior to trial the prosecutor offered not to seek the death penalty if Stuart would plead guilty to first degree murder by torture. I would hold that if the trial court were to be convinced after a hearing on this allegation that the prosecutor had in fact made such an offer, the trial court should have resentenced Stuart without considering any recommendation of the prosecutor for the imposition of the death penalty.

Where the death penalty is in issue the prosecutor as an agent of the state should not be allowed to penalize the defendant by recommending death after having forced the defendant to choose between the exercise of the right to a jury trial and the opportunity to go to sentencing with the recommendation of the prosecutor for life imprisonment. To allow the prosecutor to do so would violate the defendant’s rights under both the federal and state constitutions to jury trial and to due process of law before being deprived of his life.