Stuart v. State

BISTLINE, Justice,

dissenting.

Stuart I refers to Stuart’s direct appeal, S.Ct. No. 14865. The opinions of the Court in Stuart I ave found at 110 Idaho 163 , 715 P.2d 833 . Stuart II, S.Ct. No. 17014, refers to the March 1989 opinions of this Court on Stuart’s appeal of the district court’s denial of post conviction relief. However, the March 1989 opinion was withdrawn, a March 1990 opinion was also issued and withdrawn, and now the October 1990 opinion stands as the Stuart II opinion for the majority. Opinion No. 28, filed March 10, 1989, can be found at 89 ISCR 245; Opinion No. 35, filed March 12, 1990, can be found at 90 ISCR 375. In both Stuart I and Stuart II, rehearings were requested and granted, and the case rear *875 gued, and in each the Court issued a first and second opinion.

It is now abundantly clear that the Court will issue its final opinion in the saga of State v. Stuart, Idaho’s first torture murder case. Such being the state of affairs, this prologue is written not for the benefit of my respected brethren, but as an aid for those judges in the federal system who will preside over Stuart’s endeavors at obtaining in those courts a more just treatment than that dealt to him in this system. My comments are offered for the purpose of enabling our federal counterparts to better wind their way through the many pages of transcript, record, and briefs. Added to that are the opinions written on the direct appeal (Stuart I), and now on denial of post-conviction relief (Stuart II).

THE VARIANCE AND PROCEDURAL DEFAULT

My opinion in Stuart I called the attention of the other four members of this Court to the highly prejudicial error in the trial court’s instructions. Unquestionably there is a fatal variance between the charge of the Amended Information and the trial court’s instruction to the jury:

The defendant was charged with the fatal striking of the boy with the intent to inflict extreme pain, or with the intent to satisfy some sadistic inclination of the defendant, but the court instructed the jury that ‘It shall also be torture to inflict on a human being extreme and prolonged acts of brutality irrespective of proof of intent to cause suffering’— language which is found in § 18-4001, but which was wholly not included in the charge upon which the defendant was put to trial.

State v. Stuart, 110 Idaho 163, 195 , 715 P.2d 833, 865 (1985) (Bistline, J. dissenting) (emphasis in original). Those justices in the majority were not in the least aroused on being alerted to the variance, which can only mean that they read what I wrote and ignored it, or, they did not bother to read it. For certain there was no response.

The opinions were issued in Stuart I, and a petition for rehearing was filed by Stuart’s counsel. A supporting brief was thereafter filed. The brief raised five issues, one of which was the variance issue just mentioned. Counsel for Stuart set out the charging portion of the Amended Information. It alleges:

That Gene Francis Stuart of Orofino, Idaho, on or about the 19th day of September 1981, at Orofino, in the County of Clearwater, State of Idaho, then and there being, did then and there unlawfully and feloniously kill a human being, with the intentional application of torture to said human being, to wit: that the said Gene Francis Stuart did strike and hit Robert Miller, a human being, repeatedly with the intent to cause suffering or to satisfy some sadistic inclination of the said Gene Francis Stuart, thereby inflicting great bodily injury upon Robert Miller and mortally wounding Robert Miller, from which wounds the said Robert Miller, a three year old boy, sickened and died in the County of Clearwater, State of Idaho, on the 19th day of September 1981.

All of which is contrary to Section 18-4001, 18-4003 of the Idaho Code.

R., 14-15, S.Ct. No. 14865 (Stuart I), Amended Information (emphasis added). Counsel made no objection to the giving of Jury Instruction 16, which was in the exact language of the charge spelled out in the Amended Information:

INSTRUCTION NO. 16

Ladies and Gentlemen of the Jury, you are instructed that the State of Idaho has filed a criminal information against the defendant, Gene Francis Stuart, charging him with First Degree Murder alleging that the crime was committed as follows:

That Gene Francis Stuart of Orofino, Idaho on or about the 19th day of September, 1981, at Orofino, in the County of Clearwater, State of Idaho, then and there being, did then and there unlawfully and feloniously kill a human being, with the intentional application of torture to said human being, to wit: that the said Gene Francis Stuart did strike and hit *876 Robert Miller, a human being, repeatedly with the intent to cause suffering or to satisfy some sadistic inclination of the said Gene Francis Stuart, thereby inflicting great bodily injury upon Robert Miller, and mortally wounding Robert Miller, from which wounds the said Robert Miller, a three year old boy, sickened and died in the County of Clearwater, State of Idaho, on the 19th day of September, 1981.

To this charge, the defendant, Gene Francis Stuart, has plead not guilty.

R., 53, Stuart I. However, the district court gave the jury another instruction in language inconsistent with the charge of the Amended Information:

INSTRUCTION NO. 18

Murder is the unlawful killing of a human being with malice aforethought or the intentional application of torture to a human being, which results in the death of a human being. Torture is the intentional infliction of extreme and prolonged pain with the intent to cause suffering. It shall also be torture to inflict on a human being extreme and prolonged acts of brutality irrespective of proof of intent to cause suffering. The death of a human being caused by such torture is murder irrespective of proof of specific intent to kill; torture causing death shall be deemed the equivalent of intent to kill.

R., 55, Stuart I (emphasis added). Counsel for Stuart aptly wrote:

As noted by Justice Bistline, this Instruction relieved the jury from any responsibility to find proof of intent to cause suffering. It also permitted a finding of guilt if the jury found extreme and prolonged acts of brutality to have existed, despite the fact that such acts were not charged in the Amended Information, nor supported by any reasonable construction of the events which occurred September 19, 1981. Appellant readily acknowledged at trial that, on September 19, 1981, he poked young ROBERT MILLER in the chest, spanked him, and struck the blow which ultimately caused his death. The primary issue, considered both at trial and on Appeal, was not Appellant’s actions, but his state of mind on September 19, 1981, the day these acts were committed. As the Trial Court indicated on pages 449-450 of the Trial Transcript, and quoted by this Court in its May 3, 1985, Opinion at pages 11-12:

‘[THE COURT ... In] this particular case, the Prosecutor must convince the trier of fact that your client was engaged in a course of torture. And produced this child’s death, not necessarily intending death but only intending torture ... And so this case, to a great extent, is going to turn upon what the jury thinks was going on in your client’s mind during that interval when he dealt with this child ... ’

As noted above, all parties were aware that the charge in question could only be supported by a showing of intent on the part of Appellant to cause suffering or to satisfy some sadistic inclination. Indeed, this element of intent was considered by the Trial Court to be so important that it allowed admittedly prejudicial evidence to be presented at Trial concerning events, unrelated to the crime charged or to its victim, and which allegedly occurred as distant as ten (10) years prior to the date of ROBERT MILLER’S death. Jury Instruction Number 18, which obviated any necessity of a finding of intent to cause suffering, if extreme and prolonged acts of brutality were found to have existed, was extremely improper given the specific language of the Amended Information. It is equally apparent that, if such intent need not be proven, the propriety of allowing admittedly prejudicial evidence for purposes establishing this intent, is seriously questioned. If intent to cause suffering need not be proven, it cannot be said that the probative value of this evidence outweighed its highly prejudicial effect.

Appellant’s Memorandum in Support of Petition for Rehearing in Stuart I, 3-5 (filed July 8, 1985) (emphasis added).

*877 A rehearing was granted but limited to the issue of error in the giving of Jury Instruction 18. An appropriate order was entered directing the State to file a brief responsive to Stuart’s brief, but only to the single issue, and Stuart was allowed to file a reply brief.

The Solicitor General, Lynn E. Thomas, authored the State’s five page brief, the gist of which was that Stuart was in “procedural default:”

The failure to raise this question in the appeal was a procedural default which precludes raising the issue not only here, but in post-conviction proceedings, Watkins v. State, 101 Idaho 758 , 620 P.2d 792 (1980), and in the federal courts, Wainwright v. Sykes, 433 U.S. 72 , 53 L.Ed.2d 594 , 97 S.Ct. 2497 (1977).

Brief of Respondent in Response to Peti: tion for Rehearing in Stuart I, 4 (filed October 21, 1985). At oral argument, “procedural default” was again urged to the Supreme Court but ran into an obstacle in .the person of Justice Shepard:

[MR. THOMAS]: So, I think the Court should consider this to be a defaulted claim.

JUSTICE SHEPARD: Mr. Thomas, let me say this. I don’t want you to believe that I’m arguing it, but I want to give you my impression at the moment, and then you either comment if you think I’m wrong, or ignore what I said and go on to your next point, which I assume you’re about to do. It seems to me that the legislature in its wisdom or lack thereof has said to this Court, ‘Thou shalt review a death penalty case, whether there be an appeal or not’ Right?

MR. THOMAS: The death sentence is to be reviewed whether this is an appeal or not, but not other questions.

JUSTICE SHEPARD: The legislature has said to this Court, ‘You will examine the imposition of a death sentence and determine whether it is proportionate to other sentences imposed in other cases.’ Something that certainly we don’t expect trial courts to do and if they did it, we’d probably say they were in error in doing it. The legislature has said, ‘Death penalty cases are different,’ for whatever reason, on the finality if nothing else. / don’t really accept what I perceive your argument to be, that we are to apply procedural default rule in a death penalty case because counsel for the appellant did not raise the point in the initial briefing and hearing on it but has raised it now. Now you tell me why I shouldn’t think that way, Mr. Thomas.

MR. THOMAS: Well, in the context of the federal constitution, if I can start there, the United States Supreme Court seems to have emphasized several times that as far as the procedural rules are concerned, it doesn’t make any difference whether the case is a capital case or another kind of case. It’s important for the state to have the right to enforce its procedural rules. Otherwise, these cases can go on forever. From a procedural point of view there isn’t any difference between a capital case and another kind of case. The legislature, in capital cases, has asked the Court to review the sentence, but not the procedural niceties or the procedural aspects of the case unless an appeal is brought raising those questions specifically. I don’t the believe the legislation creates a procedural distinction or was intended to create a procedural distinction between capital cases and other kinds of cases. It is just as important in a capital case to insist that one be precluded from interminable litigation of new ideas thought up after the decision comes down adversely to the defendant. As I say, if there is a real question about the reliability of the result, the accuracy of the finding of guilt or innocence, that problem may be addressed, even under Wainwright v. Sykes and even under this Court’s procedural rules. The fundamental error rule, for example, would permit that even if it were defaulted. But the procedural rules do prevent the relitigation of claims that do not cast doubt on the reliability of the result and it seems to us that that is as it should be. Otherwise, capital cases will be carried on forever when counsel comes forward with another theory that *878 wasn’t used at trial but might be successful this time around. Allowing that kind of undermining of the finality of these cases seems to me as only one possible result, and that is to undermine public confidence in the ability of the courts to enforce the law. So, both from a legal and a policy perspective, I think it would be a bad idea.

JUSTICE BISTLINE: Mr. Thomas, would I understand from your response to Justice Shepard’s question is that if we had a defendant, like sometimes as Creech is and sometimes as he is not, says ‘okay, I’ve been convicted, I don’t want an appeal,’ we still have to do the mandatory bit under the legislative direction. We have to do our review. And if Creech did not have a lawyer and we were doing our review, are you saying that we would not, besides reviewing the sentence, look to ascertain to see that he had a fair and impartial trial?

MR. THOMAS: Oh yes, absolutely, Your Honor. Sentence review is sentence review in the context of capital cases. The Court is to determine whether, assuming that the finding of guilt is accurate, the sentence of death was proper in the facts and circumstances of the case. But I don’t believe that was an invitation to the Court to go into procedural questions or other kinds of questions relating to the admissibility of evidence of whatever that do not impact on the court’s decision to impose a particular sentence.

JUSTICE BISTLINE: I’m not sure I understand. Are you saying that we would or would not search the record of the trial proceedings to see if the defendant had had a fair trial?

MR. THOMAS: It think that’s correct. I think that the automatic review—

JUSTICE BISTLINE: What's correct? That we would or would not?

MR. THOMAS: You would not have the authority to go beyond sentence review which is the only thing specified for automatic review in the context of the capital case. It’s almost inconceivable that there’s not going to be an appeal in a capital case, but let us assume the defendant says I don’t want an appeal. I want to be executed, such as Gary Gilmore did. The Court isn’t off the hook in terms of sentence review, but it isn’t entitled in those circumstances to go into the procedural and evidentiary aspects of the trial.

JUSTICE BISTLINE: If you’re correct, then why would we require, which we do require, assuming there’s no appeal by the defendant himself, why do we require the transcript of trial proceedings?

MR. THOMAS: Well, the transcript of the trial proceedings lays out the facts, gives the factual background of the crime. It tells all the details relating to the crime and that’s an important consideration in passing sentence because the nature of the offense is, of course, a consideration under the capital aggravating factors that are set out in the aggravating list in the statute. In fact that’s the fundamental premise of those aggravating factors, how the crime was committed and the defendant’s culpability in the crime.

JUSTICE BISTLINE: So you would say, in effect, that when we have an appeal in a ease where the death sentence has been imposed, that any member of the Court — and there is counsel for the defendant, and we’re making the mandatory review — that any member of the Court who concerns himself with a question as to the fairness of the trial that hasn’t been brought up by the defendant himself is just being sort of an intermeddler, a busybody? Such as myself.

MR. THOMAS: Not only that, Your Honor, but I think you are saying ‘and finally, forget what I have said, because this case is going over to the federal court and they’ll make the decision anyway.’ Because that’s really what you do when you don’t insist on adherence to the state’s procedural rules. And I don’t think that’s really a good idea, because you’ve got on a collateral review a federal court is at least twice removed from the facts. The record becomes more at *879 tenuated. The chance of factual error becomes greater and greater and obviously the interest in finality is attenuated as well.

Stuart I, 110 Idaho at 231-33 , 715 P.2d at 901-03 (Bistline, J. dissenting) (some emphasis in original; some emphasis added).

The justices who comprised the majority in Stuart I upheld both the conviction and the death sentence by relying in part on the talisman of procedural default. They have therefore yet to come to grips with the most egregious error committed by the trial court. The error may have been unintentional; however, all things considered, it more than likely was intentional. Simply put, at the end of a three week trial the court’s instructions to the jury included an alternate ground for conviction which had not been pleaded in the Amended Information.

This Court granted a rehearing after the Stuart I opinion was issued specifically to address the issue of given Jury Instruction 18. After the rehearing, the Court stood on its old opinion. Whatever might have been in the mind of the majority is still there, because the majority addressed nothing on rehearing. 3

The majority’s treatment of the Stuart I rehearing is similar to the treatment afforded the petitioners by the Arkansas Supreme Court in Cole v. State of Arkansas, 333 U.S. 196 , 68 S.Ct. 514 , 92 L.Ed. 644 (1948). In Cole , the state supreme court had affirmed the petitioners’ convictions by invoking a charge not included in the information. The Cole defendants were tried and convicted of violating § 2, but the state supreme court upheld their convictions under § 1 of Act 193 of the 1943 Arkansas legislature. To compound the error, the state court:

later denied a petition for rehearing in which petitioners argued: ‘To sustain a conviction on grounds not charged in the information and which the jury had no opportunity to pass upon, deprives the defendants of a fair trial and a trial by jury, and denies the defendants that due process of law guaranteed by the 14th Amendment to the United States Constitution.’

Cole, 333 U.S. at 200 , 68 S.Ct. at 516 .

Here, a majority of this Court has decided not to consider the merits of Stuart’s contention that Jury Instruction 18 varied substantially with the Amended Information. The majority must have also decided not to consider the important message the United States Supreme Court sent to the state supreme courts back in 1948:

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal____ It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.

Cole, 333 U.S. at 201 , 68 S.Ct. at 517 (citations omitted); quoted with approval in State v. Smith, 117 Idaho 891 , 792 P.2d 916 (1990) (Bistline, J. specially concurring).

FAILURE TO INSTRUCT AND OBJECT

As suggested above procedural default must have occupied the minds of the majority in deciding Stuart I, because that is how Stuart’s initial challenge to the jury instructions was summarily treated:

[W]e note that appellant’s counsel accepted the instructions as given by the court, and noted that he had no objection to the instructions the court intended to give. Thus, any error in failing to instruct on this charge [of a lesser included offense], if indeed one exists, was invited error and will not be considered on appeal. *880 State v. Lopez, 100 Idaho 99 , 593 P.2d 1003 (1979).

Stuart I, 110 Idaho at 170 , 715 P.2d at 840 .

Lopez , however, was discussed in my Stuart I opinion, under the section titled “FAILURE TO INSTRUCT,” 110 Idaho at 188 , 715 P.2d at 858 . See also State v. Eisele, 107 Idaho 1035, 1037 , 695 P.2d 420, 422 (1985) (“I.C.R. 30 as amended does not preclude assignment of error in instructing where the defendant in a criminal case fails to object to the instructions in question.”). Moreover, instructing the jury in lesser included offenses is not discretionary with the court, where the evidence would reasonably support such a conviction on a lesser included offense. As our Court of Appeals has made clear:

Idaho Code § 19-2132 (b) states: ‘The court shall instruct the jury on lesser included offenses when they are supported by any reasonable view of the evidence.’ In State v. Lopez, 100 Idaho 99, 102 , 593 P.2d 1003, 1006 (1979), our Supreme Court stated: ‘It is clear that I.C. § 19-2132(b) makes it the duty of the trial court to instruct the jury on lesser included offenses when they are supported by a reasonable view of the evidence, even if the court is not requested to do so.’ The same duty exists even if a defendant, for tactical reasons, expressly requests that no instruction on a lesser included offense be given.

State v. Atwood, 105 Idaho 315, 318 , 669 P.2d 204, 207 (Ct.App.1983). The perceived procedural defaults no doubt flavored the entirety of the Stuart II majority opinion, making it more difficult for the justices in the majority to be at all concerned with the variance between the jury instruction and the information.

PROPORTIONALITY TOUCHED UPON

Twenty-one years ago Justice Shepard, now recently departed, expressed the view that an appellate dissent “ordinarily occurs only when a Justice’s sense of outrage overcomes his sense of inertia.” Deshazer v. Tompkins, 93 Idaho 267, 272 , 460 P.2d 402, 407 (1969). That was his first year of occupancy of a seat on the bench of the Idaho Supreme Court. The outrage which he experienced in Deshazer had to do with civil litigation which had been protracted over seven and one-half years. The relief Deshazer sought was for injuries to his arm. Justice Shepard closed his opinion in that case by remarking that “this case demonstrates the great truth contained in that simple statement, ‘justice delayed is justice denied.’ ” Deshazer, 93 Idaho at 274 , 460 P.2d at 409 (Shepard, J. dissenting).

Stuart is not a civil case. The stakes at issue here are somewhat higher than in Deshazer . Here, the statement Justice Shepard referred to in Deshazer may be worded thusly: “Justice denied is injustice, and injustice dealt out carelessly is outrageous enough to totally destroy all sense of inertia.” It has been conceded that Gene Francis Stuart, the defendant, was responsible for the death of Robert Miller. It has been conceded that he is guilty of the crime of manslaughter. It has been established that a jury convicted him of first degree torture murder. It has been equally well-established that the judge, now retired from such office, long ago sentenced Stuart to death. It is now a historical fact that on the direct appeal the conviction and the sentence were both affirmed. What has not been established and is not true is that Stuart had a fair trial on the issue of his conviction and on the issue of the imposed death sentence. As Justice Shepard has also written, the law does not guarantee an accused person a perfect trial, but it does guarantee a fair trial.

In Stuart I, on the direct appeal challenging the conviction and sentencing, Justice Huntley wrote a separate concurrence in order to register his view that:

[T]he Idaho capital sentencing process is unconstitutional in two respects:

(1) It does not provide for utilization of the jury, which is in violation of both the Idaho and United States constitutions; and

(2) The sentencing proceeding, as conducted by the trial courts with the approval of this court, by permitting the admission of the presentence inves *881 tigation report and other hearsay evidence over objection of the accused deprives the accused of the right to cross-examine and confront witnesses.

Stuart I, 110 Idaho at 177 , 715 P.2d at 847 (Huntley, J. concurring specially) (emphasis added). The second of Justice Huntley’s constitutional views should have been everyone’s concern.

Following the rehearing in Stuart I a second opinion for the Court was issued, the full text of which was these two sentences: “A petition for rehearing in this matter was granted and the cause reargued. The Court has reviewed the record and considered the arguments presented by counsel, and continues to adhere to the views expressed and the conclusion reached in the earlier opinion.” Stuart, 110 Idaho at 227 , 715 P.2d at 897 (on rehearing February 20, 1986). There was no discussion whatever of the variance, which issue the Court had deemed of sufficient importance to merit being reheard and reconsidered.

In that one year interval which produced nothing in Stuart’s case, two more death penalty decisions emanated from this Court, namely State v. Windsor, 110 Idaho 410 , 716 P.2d 1182 (1985); and State v. Scroggins, 110 Idaho 380 , 716 P.2d 1152 (1985). In each case, the death penalty was reversed and remanded for resentencing of a penalty less than death. The majority, however, saw no reason to reconsider the proportionality of Stuart’s sentence in light of those two decisions. That is a sad commentary, because:

The Court’s reasoning in its Windsor and Scroggins opinions is equally applicable in Stuart . In Scroggins the child killed was but a few years older than the child killed by Stuart. The victim, by the very reason of being older, was not only killed in a manner more brutal than in Stuart , but was kidnapped, raped, and robbed of any vestige of human dignity before she was murdered. Worse yet, the helpless handcuffed girl was made to suffer the knowledge that she was going to be killed. Obviously, where there is such a crime as torture murder, it was more in appearance in Scroggins than it was here.

Similarly with the Windsor case. Here the distinction between Scroggins and Windsor is only in the fact that the victim in the latter was not a child, but an older man who had befriended his captors, torturers, and killers.

Because the legislature has insisted on proportionality, and the Court heretofore made its proportionality analysis in this case without having the benefit of the proportionality analysis it would shortly thereafter make in Windsor and Scrog-gins, and the district court at sentencing in Stuart also was without the benefit of those opinions, my vote was tendered to treat Stuart as evenhandedly as the Court dealt justice to Scroggins and to Windsor.

Stuart I, 110 Idaho at 228, 715 P.2d at 898 (Bistline, J. dissenting).

The Court’s initial opinion in Stuart II, issued on March 10, 1989, denied any post-conviction relief. Today’s opinion, for whatever reason, and I know of none, withdraws that opinion of one year ago. 4 The majority now has the benefit of the views of two dissenting opinions (Justice Johnson and myself), and an excellent brief by Stuart’s attorney (Robert E. Kinney).

THE FACADE THAT THE DEFENDANT STIPULATED

In Part IIA of the March 1990 and today’s Stuart II opinion for the Court, the majority has taken note of Stuart’s contention that the trial court erred in considering *882 preliminary hearing testimony at the sentencing hearing, but continues to deny any relief in post-conviction proceedings:

The trial court denied Stuart’s claim of error in the use of preliminary hearing testimony at sentencing, specifically pointing out that in Stuart’s original direct appeal to this Court, State v. Stuart, 110 Idaho 163, 176 , 715 P.2d 833, 846 (1985), that this Court had held that ‘[i]t was stipulated at the sentencing hearing that when sentencing the defendant the court would consider evidence presented at the preliminary hearing and trial along with the presentence investigation report.’

March 1990 Stuart II (emphasis added). There is no doubting that this accurately describes Judge Schilling’s 5 ruling, which was based on what Judge Schilling had read in the Stuart I opinion issued by this Court, and which was written by Chief Justice Bakes for the majority. Finally the majority comes face to face with what it declared to be so, but concerning which nothing could have been further from the truth:

It was stipulated at the sentencing hearing that when sentencing the defendant the court would consider evidence presented at the preliminary hearing and trial along with the presentence investigation report

Stuart I, 110 Idaho at 176, 715 P.2d at 847 (emphasis added). This misstatement did not go unnoticed, but was immediately questioned in my dissent to the March 1989 Stuart II. However, in the March 1990 Stuart II majority opinion Chief Justice Bakes now, and much belatedly, attributes the misstatement to Judge Schwam. Judge Schwam’s findings in sentencing Stuart to the penalty of death are contained in the record. The excerpt from Judge Schwam’s findings now relied upon in the March 1990 edition of the majority opinion in Stuart II is this: 6

3. That a sentencing hearing was held on December 1st, 1982, pursuant to notice to counsel for the defendant and in the presence of the defendant the Court heard relevant evidence in aggravation and mitigation of the offense and arguments of counsel. Further, it was agreed and understood by both the State and the defendant that the Court would rely upon, as part of the sentencing hearing, the testimony at the preliminary hearing and the trial.

R., 220-21, Findings of the Court in Considering the Death Penalty {Stuart I). For certain Judge Schwam wrote that finding, and in doing so was perpetrating, and apparently perpetuating, what may well be the most insidious untruth in the history of Idaho criminal jurisprudence. There was no such stipulation.

Much effort and much time were expended in pointing out to the other members of the Court 7 in the March 1989 Stuart II opinions, that at the sentencing hearing:

After the State had put on one witness, the jailer, who testified that he had observed no remorse on defendant’s part, Judge Schwam ruled that he would discount [it] completely and did so by striking all of the jailer’s testimony. The State presented no more witnesses. The following then took place:

THE COURT: Does the defense have any witnesses?

MR. KINNEY: Your Honor, in light of the fact that the State has presented no witnesses in aggravation in addition to, of course, the trial testimony, we tend to also rely on the trial and argument.

THE COURT: Okay. I gather it’s the State’s position that it has a right to and intends to rely upon all the cross-examination testimony elicited either *883 at the Preliminary Hearing or the trial; is that correct?

MR. CALHOUN: Yes, sir, that is correct.

THE COURT: Okay.

MR. KINNEY: Just a moment, please?

THE COURT: Yes.

MR. CALHOUN: I believe I’ve so stated in the paperwork that I filed.

The prosecutor’s statement that the State would rely upon preliminary testimony was just that, the State’s position. For certain it was not the stipulation which this Court’s opinion elevated it to on the direct appeal — apparently on the sole basis of Judge Schwam’s finding of such a stipulation, and without anyone on this Court making an independent examination of the record in order to ascertain the validity of Judge Schwam’s finding. 8

March 1989 Stuart II, (Bistline, J. dissenting) (emphasis in original; footnote added).

The author of the Court’s majority opinion has wondered and speculated as to why it appears that the issue of Judge Schwam’s utilization of the preliminary hearing transcript was not raised on the appeal in Stuart I. He surmises in the March 1990 Stuart II majority opinion that:

The reason for not raising the issue on direct appeal was no doubt because this Court, at the time of sentencing, had previously held in State v. Osborn, 102 Idaho 405 , 631 P.2d 187 (1981), that the use of a preliminary hearing transcript at the sentencing/aggravation/mitigation hearing was not in error, and that no formal sentencing hearing as provided in I.C. § 19-2516 had been requested.

March 1990 Stuart II. This mirrors the majority’s statement in today’s Stuart II opinion. (See my discussion on this point in my opinion dissenting on the denial of petition for rehearing, which follows immediately after this opinion.) When one examines State v. Osborn, however, this conjecture becomes of highly doubtful validity. One only need turn to 102 Idaho at 408 , 631 P.2d at 190 , to discover that: .

After submission of a presentence report, an aggravation-mitigation hearing was held. I.C. § 19-2515. At that hearing, neither prosecution nor defense called any witnesses. The state advised the court that ‘because I think we do have a — a good record of what transpired in the preliminary hearing instead of calling witnesses today, [I choose] to rely on the testimony presented at the preliminary hearing____’ Similarly, appellant’s counsel relied upon the facts brought forth in the preliminary hearing and in the reports to the court, and called no additional witnesses, although the appellant did address the court in his own behalf.

Osborn, Id. (insertion and deletion in original). Osborn had plead guilty to first degree murder. The most that can be made of Osborn is that counsel for the defendant and for the state entertained the same thought — that some favor might be gained from the sentencing judge if he were not burdened with having to hear live witnesses regarding the commission of the crime. 9

A holding, said to be attributable to Osborn “that no formal sentencing hearing as provided in I.C. § 19-2516 had been requested” was not a holding, but was only a reason for purporting to justify what was the holding in Osborn that the use of a preliminary hearing transcript was not, under the circumstances there present, preju *884 dicial error. 10 Nevertheless, utilizing Osborn , the majority rules Stuart out of court:

Stuart’s claim now, that he did not stipulate at the sentencing hearing for the use of preliminary hearing testimony, comes too late. Stuart should have raised the issue by petitioning for rehearing of our decision in Stuart I, the direct appeal. The trial court did not err in rejecting Stuart’s post conviction claim on the issue of the use of preliminary hearing testimony at sentencing.

March 1990 Stuart II (emphasis added; footnote omitted).

The majority no longer insists that there was such a stipulation. That is understood. Instead the majority’s author perforce switches to holding that Stuart forfeited that issue by not requesting a rehearing of the initial Stuart I opinion released on May 3, 1985:

Our holding in Stuart I that the parties had ‘stipulated’ to the use of the preliminary hearing testimony in the sentencing proceeding was based upon the finding of the trial court in the December 1, 1982, sentencing hearing in which the trial court found, ‘Further, it was agreed and understood by both the state and the defendant that the court would rely upon, as part of the sentencing hearing, the testimony at the preliminary hearing and the trial.’ There is nothing in the record to demonstrate that Stuart ever questioned the finding, either before the trial court by way of motion for reconsideration, or on appeal to this Court in Stuart I. After the issuance of our opinion in Stuart I in which we held, based upon the trial court’s finding, that the parties had stipulated to the use of the preliminary hearing testimony in the sentencing proceeding, the defendant Stuart did not petition this Court for rehearing in order to question either the trial court’s finding or this Court’s holding that Stuart had stipulated to the use of the preliminary hearing testimony at the sentencing hearing. March 1990 Stuart II n. 1 (emphasis added). Quaere, will this cause wonderment among the trial judges and the experienced practitioners of criminal law? First, it was initially declared that defense counsel had so stipulated, but when that thought was discarded, the claim became that Stuart should have moved for a rehearing on first seeing in the May 1985 opinion that he had so stipulated. This is manifestly unfair, because Chief Justice Bakes was the first Supreme Court Justice ever to write that Stuart’s counsel had stipulated. First, Judge Schwam’s misstatement had been accepted by Chief Justice Bakes at face value, with no showing of any resort to the court reporter’s transcript. Second, the record is voluminous and somewhat convoluted, but it is not all that difficult to peruse. And third, why is it that the reader has been left with the inference from the majority opinion that Stuart did not petition for a rehearing, said to be the proper remedy? The answer is that Stuart did do so, and he raised the very issue Chief Justice Bakes later asserts should have been raised. (See Appendix A.)

It now appears that the Court’s March 1989 Stuart II opinion has been withdrawn in order to erase from sight the glaring untruth of the stipulation which never was. But withdrawing an opinion cannot strike or erase from memory the apparent, indifferent carelessness with which the opinion was written. This is not fun time, but serious business. While to some these thoughts may come across as being a bit on the strong side, one cannot help but stand wholly aghast at what would be happening here if Bistline, J., too, were gone from the appellate scene along with Justices Shepard, Donaldson, and Huntley.

Chief Justice Bakes has, by lot, inherited all of the Stuart appeals. It is disheartening to be placed in the position of telling an experienced and capable appellate justice that he should have had more regard for the record. By comparison, no practicing *885 attorney handling criminal defenses could have done any more (at great personal and financial cost) than did Robert Kinney in his attempts at seeing that Stuart was at least dealt with fairly. Mr. Kinney attempted to get the Court concerned about Judge Schwam’s misuse of the preliminary hearing testimony but was turned away empty handed. Continuing that same effort, Mr. Kinney in post-conviction relief proceedings presented to the district court the absolutely irrefutable assignment of error that Stuart had not, in person or by counsel, stipulated to the use of the preliminary hearing transcript. Again defense counsel was turned away. Judge Schilling read that Chief Justice Bakes, with three justices joining his opinion, had ruled in Stuart I that Stuart had so stipulated. .Because of the doctrine of the law of the case, the district court was powerless to say otherwise, 11 even though the fact of the matter was as plain to see as the proverbial nose on Dooley’s face. Attached hereto as Appendix A is Part III of Mr. Kinney’s brief supporting the petition for rehearing in Stuart I, which he did timely file. Appendix B is a true copy of my March 1989 opinion wherein an attempt was made to dissuade the other members of the Court from heaping as much or more error on Mr. Stuart than was visited upon him by the district court. It is in augmentation of my response to today’s October 1990 opinion for the Court, and contains an analysis which is equally pertinent to this day’s opinion for the Court. Attached as Appendix C is my dissent to this Court’s March 1990 opinion. Attached as Appendix D are excerpts from the majority opinions of March 1989, March 1990, and October 1990, which have been removed from sight by the questionable expediency of withdrawing the entire opinions, and then reissuing the same as modified.

APPENDIX A

[Being an excerpt from appellant’s brief in support of his petition for rehearing of Stuart I. Rehearing was granted, but only in part.]

Ill

THE SENTENCING JUDGE IGNORED THE CLEAR MANDATE OF IDAHO CODE SECTION 19-2516 IN UTILIZING HEARSAY EVIDENCE AS A BASIS FOR IMPOSING THE DEATH PENALTY.

Idaho Code Section 19-2515(f) states:

(f) The following are statutory aggravating circumstances, at least one (1) of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed: ... (emphasis added)

Idaho Code 19-2516 provides as follows:

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)

It is clearly the duty of the sentencing Court in capital cases to receive testimony in open Court concerning aggravating or mitigating circumstances under Idaho Code Section 19-2515. At the Sentencing Hearing held December 1, 1982, the State presented one (1) witness, who was the Clearwater County Jail Administrator. His testimony was presented in an attempt to demonstrate that the defendant had not *886 shown remorse while incarcerated and awaiting Trial. In striking all testimony of this witness, the sentencing Judge deemed his testimony irrelevant and improper. (Transcript of Sentencing Hearing, page 27). Thereafter, Appellant was called by the defense as a witness, in an attempt to illustrate that he had cooperated with the police in the investigation of ROBERT MILLER’S death. There were no other witnesses who testified at the Sentencing Hearing held December 1, 1982.

After the Court had stricken the testimony presented by the State’s only witness, the defense indicated clearly its understanding that the State would rely only upon Trial testimony and argument presented at the sentencing in support of its claim that statutory aggravating circumstances existed. This understanding is reflected in the transcript of the December 2, 1982, Hearing on page 28 as follows:

MR. CALHOUN: In light of that, your Honor, the State has no further witnesses.

THE COURT: Does the Defense have any witnesses?

MR. KINNEY: Your Honor, in light of the fact that the State has presented no witnesses in aggravation in addition to, of course, the Trial testimony, we tend to also rely on the Trial and argument.

At the direction of the Sentencing Judge, Appellant’s counsel argued first, in an effort to persuade the Court against imposing the Death Penalty. (Transcript of December 1, 1982, Hearing, pages 34 and 35). Appellant’s attorney argued that testimony taken outside that introduced at Trial could not be used as aggravation at the Sentencing Hearing. (Transcript of December 1, 1982, Hearing, page 46 lines 7, 8, 9, 10, and 11). The Prosecuting Attorney, however, insisted upon arguing incidents alleged to have occurred at the Preliminary Hearing, and not admitted at Trial. (Transcript of December 1, 1982, Hearing page 70).

After arguments of counsel were completed, the Court indicated that it would not consider hearsay evidence unfavorable to defendant in determining whether a statutory aggravating circumstance had been proven beyond a reasonable doubt. The sentencing Judge’s comments concerning use of hearsay evidence at this stated of the proceedings, are set forth as follows:

THE COURT: I would like to make one comment at this time before we recess. This report does contain — a Pre Sentence report contains a hearsay statement from the defendant’s natural child. I am convinced that because I must find any aggravating circumstance to be demonstrated beyond a reasonable doubt it would be inappropriate for me to resort to that kind of unchallengeable hearsay in determining an aggravated circumstance ... When determining the existence or nonexistence of a particular mitigating circumstance that often involves the consideration of negative information, negative to the defendant as well as positive information. But I think it is inappropriate even in those circumstances for me to consider damaging negative information produced in a hearsay fashion in this report for the purpose of determining this question which is supposed to be determined beyond a reasonable doubt. And that is the facts necessary to support the imposition of the Death Penalty. (Transcript of December 1, 1982, Hearing, Pages 88 and 89).

Despite his clear statement that negative hearsay comments could not and would not be used to support imposition of the Death Penalty, the Sentencing Judge acted exactly opposite to his own comments. The Transcript reflects clearly this change of attitude on the part of Judge Schwam after he had determined two (2) aggravating circumstances to be applicable:

Now, defense has raised some interesting questions which I think I should address. Defense has raised the fact that much of the testimony which gives me insight into this defendant’s background was legitimately admitted at Trial for a limited purpose. And defense has argued that I should only use that testimony with the same limitation for a demonstration of intent on the part of the defendant at the time of the offense in *887 question. I disagree with the defense. And I have not limited my use of that testimony____ And I don’t feel that it is inappropriate or that it is illegal for me to use that evidence for all purposes in considering these aggravating circumstances and the mitigating circumstances. Furthermore, I observed those witnesses testify once myself, I, of course, read this testimony at the preliminary hearing, and it would be utterly cruel for this justice system to require those women to return a third time to testify. And I would not make ruling that would require such a result. (Transcript of December 1, 1982, Hearing pages 108 and 109).

The Sentencing Hearing Transcript reflects with cold arrogance the fact that defendant was misled into believing that hearsay evidence would not be used in aggravation of sentence, and that the Court totally ignored the mandate of Idaho Code Section 19-2516 which does not permit aggravating circumstances to be shown other than through testimony presented in Open Court.

Memorandum in Support of Petition for Rehearing, 9-12, filed July 8, 1985, S.Ct. No. 14865 (Stuart I) (emphasis added).

That issue was further addressed by Stuart’s counsel in support of another petition for rehearing after Stuart’s petition for post conviction relief was denied without an evidentiary hearing. In this Court’s opinion affirming that denial was said to be properly based upon a stipulation, Mr. Kinney, in May 1990, laid out nicely how the stipulation that never was came to be:

Appellant readily acknowledges that, on direct appeal, the finding of Judge Schwam that appellant had stipulated to use of preliminary hearing testimony at the time of sentencing, was not specifically phrased as an issue. Although appellant challenged the use of hearsay testimony by the sentencing Court in his opening brief, the specific question of a purported ‘stipulation’ was not therein raised as an issue. In its initial Decision, issued May 3, 1985, this Court addressed the issue of proportionality of the Sentence imposed in this case, both in response to Mr. Stuart’s contentions that the Sentence imposed violated the provisions of the Eighth Amendment to the United States Constitution, and in accordance with the duty imposed by Idaho Code Section 19-2827. In so doing, this Court adopted the Trial Court’s finding that a stipulation was entered into between the parties concerning use of the preliminary hearing testimony at sentencing (State v. Stuart, 110 Idaho 163, 176 [ 715 P.2d 833 ] (1985)).

Following the Decision of this Court in Stuart I, issued May 3, 1985, appellant filed a Petition for Rehearing. Subsequently, on July 8, 1985, a Memorandum in Support of Appellant’s Petition for Rehearing was filed. That Memorandum set forth five separate issues which appellant requested that the Court consider on rehearing. As noted in Appendix A to the Dissenting Opinion of Justice Bistline in the most recent Decision of this Court issued March 12, 1990, Appellant’s Memorandum in Support of Petition for Rehearing, filed after the decision in Stuart I, directly addressed the alleged ‘stipulation’ concerning use of preliminary hearing testimony at sentencing. The Memorandum in Support of Petition for Rehearing, filed by appellant on July 8, 1985, stated:

After the court had stricken the testimony presented by the state’s only witness, the defense indicated clearly its understanding that the state would rely only on trial testimony and argument presented at the sentencing in support of its claim that statutory aggravating circumstances existed. This understanding is reflected in the transcript of the December 1,1982, hearing on page 28 as follows:

MR. CALHOUN: In light of that, your honor, the state has no further witnesses.

THE COURT: Does the defense have any witnesses?

MR. KINNEY: Your honor, in light of the fact that the state has presented no witnesses in aggravation in addition *888 to, of course, the trial testimony, we (in)tend to also rely upon the trial and argument.

{Appellant’s Memorandum in Support of Petition for Rehearing, filed July 8, 1985 — p. 10).

Appellant’s July 8, 1985, Memorandum, filed in support of his Petition for Rehearing, directed this Court’s attention to portions of the sentencing hearing transcript wherein counsel for Mr. Stuart contended that testimony taken outside trial could not be used as aggravation at the sentencing hearing (Memorandum in Support of Petition for Rehearing, filed July 8, 1985 — p. 11). This memorandum also referred to excerpts from the sentencing hearing transcript wherein Judge Schwam initially indicated that he would not consider hearsay evidence unfavorable to defendant in determining whether a statutory aggravating circumstance had been proven beyond a reasonable doubt. Also noted were excerpts from the sentencing hearing transcript indicating that the Court subsequently acted exactly opposite to Judge Schwam’s earlier comments, and considered preliminary hearing testimony over the objection of the defense (Appellant’s Memorandum in Support of Petition for Rehearing, filed July 8, 1985 — pp. 11-12).

As the Record in this case will illustrate, Mr. Stuart indeed did file a Petition for Rehearing challenging the purported ‘stipulation’' concerning use of preliminary hearing testimony at sentencing. The Petition for Rehearing filed by appellant also noted the fact that the Court relied upon preliminary hearing testimony over the objection of the defense, in finding beyond a reasonable doubt that two statutory aggravating circumstances had been proven. As further illustration of the fact that no such stipulation occurred the Court’s attention is also directed to the following words of Judge Schwam, at the time of sentencing:

I think the prosecutor is correct that I must consider the evidence at the preliminary hearing and at the trial. (Transcript of December 1, 1982, Sentencing Hearing, p. 102, Is. 16-18).

After the Memorandum in Support of Petition for Rehearing had been filed, this Court granted Rehearing under an Order dated September 20, 1985, concerning only the issue of jury instruction number 18. The issue raised on Rehearing concerning the alleged ‘stipulation’ to the use of preliminary hearing testimony at sentencing, and the Trial Court’s reliance upon hearsay evidence in finding beyond a reasonable doubt that statutory aggravating circumstances existed, was not permitted to be argued on Rehearing in Stuart I.

As earlier noted, appellant acknowledges that the nonexistent ‘stipulation’ was not precisely phrased as an issue on direct appeal. It was, however, directly referred to in the Memorandum in Support of Petition for Rehearing filed by Mr. Stuart on July 8, 1985. To maintain now that this issue was not raised on direct appeal is to exalt form over substance in direct violation of well established rules providing for ‘qualitatively different’ review of death penalty cases. State v. Scroggins, 110 Idaho 380, 387 , 716 P.2d 1152, 1159 (1985); State v. Osborn, 102 Idaho 405, 410-11 , 631 P.2d 187 (1981); State v. Sivak, 105 Idaho 900, 903 , 674 P.2d 396 (1983).

In its Decision entered March 12, 1990, the majority of this Court erred in concluding that Mr. Stuart had not raised, in his Petition for Rehearing from Stuart I, an issue concerning improper use of preliminary hearing testimony by the Sentencing Court. As hereinbelow noted, even if this issue were raised for the first time on post conviction relief proceedings, Idaho Code Section 19-4901, as presently written, is inapplicable to this case. The fact remains, however, that appellant not only addressed the purported ‘stipulation’ in his Rehearing Memorandum filed July 8,1985, but was denied an opportunity to present an argument in support of this issue at the Rehearing ultimately held.

*889 II

APPELLANT IS NOT PRECLUDED FROM ADDRESSING THE ISSUE OF IMPROPER USE OF PRELIMINARY HEARING TESTIMONY BY THE SENTENCING COURT IN POST CONVICTION RELIEF PROCEEDINGS.

In the opinion of this Court issued March 10, 1989, subsequently withdrawn and replaced by the Opinion entered March 12, 1990, the majority of this Court indicated that Mr. Stuart’s allegations concerning improper use of preliminary hearing testimony by the Sentencing Court were forfeited under the provisions of Idaho Code Section 19-4901(b) {Stuart v. State, No. 17014, Slip Op. No. 28 (Sup.Ct. March 10, 1989, p. 8). Incorporating what appears to be the same reasoning, the majority of this Court in the most recent Decision entered March 12, 1990, indicated that ‘Stuart is foreclosed from raising the issue of the use of preliminary hearing testimony at sentencing because of our decision in Stuart I’ (Stuart v. State, No. 17014, Slip Op. No. 35 (Sup.Ct., March 12, 1990, p. 6).

As previously noted, appellant did indeed raise the issue of improper use of preliminary hearing testimony by the Sentencing Court, in seeking rehearing of the Decision in Stuart I. As hereafter illustrated, however, even if the issue had never been raised, Mr. Stuart is not procedurally barred from raising this issue in post conviction proceedings.

Idaho Code Section 19-4901 was initially enacted in 1967. It has thereafter been amended effective July 1, 1975, and July 1, 1986. Until July 1, 1986, Idaho Code Section 19-4901(b) read as follows:

19-4901. REMEDY — TO WHOM AVAILABLE — CONDITIONS.

(b) This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of appeal from the sentence of conviction. Except as otherwise provided in this act, it comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the validity of the conviction or sentence. It shall be used exclusively in place of them.

On July 1, 1986, the present amendment of Idaho Code Section 19-4901(b) took effect. As presently written, the statute contains the following language:

19-4901. REMEDY — TO WHOM AVAILABLE — CONDITIONS.

(b) This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of an appeal from the sentence or conviction. Any issue which could have been raised on direct appeal, but was not, is forfeited and may not be considered in post conviction proceedings, unless it appears to the court, on the basis of a substantial factual showing by affidavit, deposition or otherwise, that the asserted basis for relief raises a substantial doubt about the reliability of the finding of guilt and could not, in the exercise of due diligence, have been presented earlier. Except as otherwise provided in this act, it comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the validity of the conviction or sentence. It shall be used exclusively in place of them, (emphasis added).

As the Record will reflect, Mr. Stuart was arrested on September 19, 1981, and subsequently charged with the crime of murder by torture on October 1, 1981. After his trial and conviction, Mr. Stuart was sentenced to death on December 1, 1982. His direct appeal was then taken to the Supreme Court and, on May 3, 1985, the conviction and ultimate sentence of death were affirmed on appeal. His Petition for Post Conviction Relief, which included an allegation concerning improper use of preliminary hearing testimony by the Sentencing Court, was filed June 3, 1986. Accordingly, the Record well illustrates that Mr. Stuart was charged, convicted, sentenced, his direct appeal decided, and post conviction *890 relief petition filed, all prior to the time I.C. 19-4901(b), as presently written, took effect.

Appellant’s Memorandum in Support of Petition for Rehearing, filed May 11, 1990, 8-14.

APPENDIX B

The Bistline, J., dissent in the 1989 Opinion No. 28, filed March 10, 1989, deals with (a) the use made by the district court at sentencing of the preliminary hearing testimony of defendant’s abuse of women in Washington state over ten years earlier; (b) the actual circumstances and events in State v. Coutts, 101 Idaho 110 , 609 P.2d 642 (1980), and State v. Osborn, 104 Idaho 809 , 663 P.2d 1111 (1983), did not establish the precedent that there were no limits on what a district court could consider at sentencing; and (c) a chronicle of the systematic efforts of the district court which consisted of inappropriate conduct making extremely difficult the efforts of Stuart’s counsel at obtaining a fair trial, i.e., no investigator, no money, penurious monetary reward, and grossly wrong orders and rulings:

The judgment of the district court denying and dismissing the petition for post conviction relief is affirmed.

SHEPARD, C.J., and HUNTLEY, J., concur.

JOHNSON, J., concurs in Part I, Part 11(A) and Part 11(C), and dissents as to Part 11(B).

. The full text of the majority opinion which issued following rehearing is this: "A petition for rehearing in this matter was granted and the cause reargued. The Court has reviewed the record and considered the arguments presented by counsel, and continues to adhere to the views expressed and the conclusion reached in the earlier opinion." Stuart I, 110 Idaho at 227, 715 P.2d at 897 .

. Most of my attention and effort has been directed at confronting the opinions which have been issued in this Court, which opinions, by a whim of the majority can be withdrawn. But although the majority perhaps cannot withdraw my opinion, a point upon which I am uncertain, it can withdraw what I have successfully assailed, and thus render my writings into utteranees made in a vacuum. My March 1989 opinion represents considerable effort, and, in one view at least, it opened for display the fallacies of the majority opinion which has now been withdrawn. So that the opinions in Stuart II are more readily understood, I have attached as Appendix B my March 1989 opinion.

. Judge Schwam presided over the trial and sentencing. Judge Schilling presided over the post-conviction proceedings.

. Explicit reliance is placed on this passage. See footnote 1 to the March 1990 Stuart II opinion for the Court.

.The membership a year ago did not include Justices Boyle and McDevitt.

. As stated in footnote 3 to my dissent in the March 1989 Stuart II:

By the nature of things we naturally rely upon the justice who has drawn the case to correctly portray the record. Otherwise, all five of us would have to painstakingly read all of the appeal records and transcripts — an exercise which time constraints do not allow.

It may have been noted that on occasion, of which this is one, I do so notwithstanding that the responsibility is not mine in the first place. When one perceives gross prejudicial misstatements in a majority opinion, the only answer is either to get to work or get out of the kitchen.

. The defendant, in addressing the court in his own behalf, did so in the exercise of his traditional right of allocution and not as a witness. The right of allocution is now contained in the Court promulgated Idaho Criminal Rule 33.

. Osborn at best stands for little. An aberration, there has not been a second such case where counsel at sentencing implicitly stipuIated to the admission of a preliminary hearing transcript.

. See Ada County Highway Dist. v. Smith, 113 Idaho 878, 880 , 749 P.2d 497, 499 (Ct.App.1988), citing with approval to Suitts v. First Sec. Bank of Idaho, N.A., 110 Idaho 15, 21-22 , 713 P.2d 1374, 1380-81 (1985). The operation of the doctrine requires that (in further proceedings in a case which after appeal has been remanded) the lower courts are not at liberty to disregard the answer to any question upon which the higher court has spoken and ruled. The higher court itself is not so constrained. A district court cannot be so independent and thoughtful.