State v. Creech

OPINION ON DENIAL OF PETITION FOR REHEARING

BISTLINE, Justice.

I.

My vote was to grant the rehearing, although I concede that there is not a strong likelihood that there would be any change in the votes to affirm and the votes to reverse, notwithstanding that the majority has not as yet addressed in this case the well-documented dissenting views that the Idaho Constitution guarantees that persons convicted of first degree murder in Idaho shall have their life-or-death fate decreed by jurors of their peers. In another death penalty case, State v. Sivak, 105 Idaho 900 , 674 P.2d 396 (1983) the author of that 3-2 majority opinion, who is part of the 3-2 majority in Creech’s case, has attempted to explain away the right of the Idaho Constitution, but the attempt is feeble and unconvincing. Notwithstanding that any Idaho court which has ever addressed the proposition has always held that the guarantee of Art. 1, § 7 is to be construed to apply as it existed at the date of the adoption of our Constitution, the majority opinion in the Sivak case points to convictions of second degree murder, of which it says the “sentencer was the judge, and not the jury.” A comparison is made to first degree burglary and second degree burglary. This is sophistry at its best. No one has ever contended that jury sentencing at the time of the adoption of our Idaho Constitution was ever applicable other than in criminal cases charging first degree murder. The Sivak majority declines to enter upon a discussion of People v. Walters, 1 Idaho 271 , (1869), where the jury, full well knowing that their verdict of first degree murder would send the defendant to the gallows, nevertheless so convicted him, but recommended the mercy of the Court — a futile recommendation to a judge who was without any authority to dispense mercy in going through the formality of imposing the written judgment of execution by hanging which the law required. Was the judge in People v. Walters the determiner of the sentence? Or was it the jury?

Who was the sentencer in the first degree murder following admission to statehood? Again it was the jury. Exactly as had been so in territorial days, all the part a judge played was to affix his official signature to the judgment and death warrant. State v. Perry, 4 Idaho 224 , 38 P. 655 (1894).

The Sivak majority provides no discussion of the enlightening 1911 amendment to the statutory provisions. Obviously of the belief that the responsibility for sentencing in first degree murder cases belonged to the jury, and with it the correlative right in the defendant to have his sentence so fixed, the 1911 legislature placed some discretion in the hands of the jury — with no discretion whatever entrusted to judges — who as before would simply sign the written judgments, which were the formal documentation of the decision rendered by the jury. Alive and interested in the outcome of the 1936 VanVlack trial, State v. VanVlack, 57 Idaho 316 , 65 P.2d 736 (1936), I well remember that his jury found him guilty of murder in the first degree and imposed his punishment at death, whereas in my first year of law school another jury set the defendant’s penalty for first degree murder at life imprisonment. State v. Golden, 67 Idaho 497 , 186 P.2d 485 (1947). The Sivak majority has not in Sivak , nor in this case, demonstrated how Idaho district judges, both in territorial days, and then in statehood until Furman, were invested with any discretionary authority in sentencing for first degree murder convictions. The reason is simply that the matter of determining between life and death was entirely in the hands of the jury. It was thusly so at the time our Idaho Constitution, including its Art. 1, § 7, was adopted. The author of Sivak concedes that Art. 1, § 7 “has been *413 interpreted in several of the cases as guaranteeing the right of trial by jury as it existed at the time of the adoption of the Constitution.” In what some trial attorneys may see as a deft display of judicial sleight-of-hand, the Sivak author cites for the proposition so stated by him the case of People v. Burnham, 35 Idaho 522 , 207 P. 589 (1922). 1 Contrary to indications, this was not a criminal case, but a statutory action to remove a civil officer — which the court noted as being in the nature of quo warranto, a civil and not a criminal action. The Sivak author, and those who joined that majority opinion, might have better commented on this Court’s holdings in the criminal cases of In re Dawson, 20 Idaho 178, 180 , 117 P. 696 (1911), and the earlier case of In re Prout, 12 Idaho 494 , 86 P. 275 (1906) — excerpts of both cases being prominently set forth in my Creech dissent, Part I. As matters now stand the only response by the Creech majority to the proposition that jury sentencing is constitutionally mandated must be found by resorting to Sivak , which response is neither responsive nor convincing. If it be that the majority has simply determined to overrule In re Dawson, as indicated by the judicial sleight-of-hand of citing the non-criminal cases, in preference to In re Dawson, a criminal case, it seems that a more outward stance would be more befitting a case so grave as this.

II.

When the Court heard oral argument at Twin Falls last fall the Solicitor General was adamant in his belief that the presence of the defendant at the pronouncement of sentence was a formality that could be dispensed with, notwithstanding the clear language of a statute requiring his presence. Oral argument in that vein paralleled the State’s brief:

“No proceeding was conducted for the purpose of orally announcing the sentence imposed upon the appellant, and that circumstance is the basis of appellant’s claim of error.

“The complaint made here by appellant relates to a highly formalistic defect (if it is a defect at all) of the kind which the court is enjoined to ignore. Rule 52, I.C.R. Appellant was given every conceivable opportunity to present evidence, to argue, and to speak personally at the sentencing stage of the action against him. The long-standing test for determining whether the defendant’s absence at a particular point in the proceedings amounted to constitutional error was set forth in Snyder v. Massachusetts, 291 U.S. 97 , 54 S.Ct. [330] 3340, 78 L.Ed. 674 (1934), and was reaffirmed in Faretta v. California, 422 U.S. 806 [ 95 S.Ct. 2525 ], 45 L.Ed.2d 562 (1975), and State v. [Carver] Carter, 94 Idaho 677 , 496 P.2d 676 (1972).

“The central purpose of the due process clause, as it applies to criminal cases, is to secure to the defendant the right to be fairly treated in the proceedings taken against him. Faretta v. California, supra; Snyder v. Massachusetts, supra; State v. Carver, supra. ‘Fundamental fairness,’ as far as the concept is relevant to the appellant’s argument, required only that the appellant be afforded every reasonable opportunity to present evidence and argument in mitigation, to make a personal statement, and to make appropriate legal objections. Faretta v. California, supra; Snyder v. Massachusetts, supra; State v. Carver, supra; State v. Higley, 621 P.2d 1043 (Mont.1980); State v. Walker, 536 P.2d 657 (1975); People v. Coyle [ 88 Cal.App.2d 967 ], 200 P.2d 546 (Cal.1948), cert. denied, 337 U.S. 909 [ 69 S.Ct. 1042 , 93 L.Ed. 1721 ], reh. denied 337 U.S. 934 [ 69 S.Ct. 1485 , 93 L.Ed. 1740 ],

“Clearly, these considerations do not bear materially on the facts of appellant’s case. Appellant was not denied any opportunity to be heard on any matter of mitigation or defense. The only ‘proceeding’ he missed was the judge’s personal *414 deliberations about the sentence. Appellant could not have participated further than he did, even if the court had brought the appellant into the courtroom and read the opinion in open court. Thus, the privilege of presence sought by appellant ‘would be useless, or the benefit but a shadow,’ Snyder v. Massachusetts, supra, and the defendant’s absence in such circumstances had no constitutional significance. Nor, for the same reason, could a rule or statutory violation of no consequence be the basis for setting aside the appellant’s sentence on the theory that it was a violation of state statute and rule. Rule 52, I.C.R.

“Appellant, without the support of any authority whatever, argues that due process of law is tested by the application of factors other than the potential of absence to frustrate the fairness of the proceedings.

“He argues that fundamental fairness requires that the prisoner be ‘looked in the eye’ at the time of sentencing, that person to person confrontation at the time sentence is announced is necessary because it may induce the judge to be more ‘humane’ in passing sentence, and that fundamental fairness as an element of the due process clause requires that closed, secret proceedings at sentencing be prevented.

“The suggestion that the due process clause requires the judge to look the defendant in the eye at the time sentence is pronounced in order to influence the judge to be more ‘humane,’ smacks of an argument that somehow the due process clause requires that the sentencing judge be intimidated by the magnitude of the task before him and thereby frightened away from a death sentence. Respondent has found no case supporting this theory, and the appellant cites none. In fact, guided discretion at sentencing requires that the judge be influenced only by objective factors related to the offender and his crime. Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976).

“Appellant also argues that because the sentence was not orally announced he was not given the opportunity to state whether there was any ‘legal cause’ why sentence should not be pronounced.

“The defendant’s right to be heard before sentence is pronounced is undisputed. Rule 33(1), I.C.R.; State v. Goodrich, 97 Idaho 472 , 546 P.2d 1180 (1976). However, the right of allocution requires only that ‘a trial judge before sentencing must directly address the defendant, and offer him personally a clear opportunity to make a statement in his own behalf, and to present any information in mitigation of punishment... ’ State v. Goodrich, 97 Idaho at 480 [ 546 P.2d 1180 ]. Appellant was not only offered the right to speak several times, but he took advantage of the right of allocution and made a lengthy statement to the court before sentencing. The right of allocution does not contemplate that the defendant may continue to speak forever, or that his counsel may do so. Orderly process requires that at some time the proceeding come to an end and the judge announce the sentence.”

Respondent’s Brief, pp. 13-18.

Notwithstanding this strong contention from the State, the Court, some three and one-half months after hearing argument, entered its order vacating the death sentence which the district judge had imposed on Creech:

“In the above-entitled cause, defendant Creech entered a plea of guilty to a charge of first degree murder and in accordance with I.C. § 19-2515, the district court conducted a hearing into mitigating or aggravating circumstances and thereafter on the 25th day of January, 1982, the district court purported to impose the death sentence upon the defendant; and

“The cause being before this Court both on appeal by the defendant and also pursuant to the automatic review of death sentences mandated by I.C. § 9— 2827; and

“It appearing from the record, without any contention otherwise by the respon *415 dent State of Idaho, that contrary to the requirements of I.C. § 19-2503 and I.C.R. 43(a), the trial judge purported to impose sentence in the absence of defendant and his counsel and without the presence of defendant and his counsel in open court, but rather by means of a written imposition of a sentence of death;

“NOW, THEREFORE, IT IS HEREBY ORDERED that the sentence of death imposed upon the defendant in the absence of the defendant and his counsel be and the same hereby is vacated and the cause is remanded to the Honorable Robert Newhouse, District Judge of the Fourth Judicial District of the State of Idaho, Ada County, who shall within fourteen (14) days from the date of this Order, in open court and in the presence of defendant and his counsel, enter a judgment of conviction and impose such sentence upon the defendant Thomas Eugene Creech as to the said District Judge may appear to be just and appropriate. In the event that said shall impose a sentence of death, a warrant therefor shall issue in accordance with I.C. § 19-2705; and

“IT IS FURTHER ORDERED that on the completion of said proceedings a transcript thereof shall be immediately prepared, delivered and lodged with this Court not later than five (5) days from the completion of said proceedings; and

“IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this cause pending compliance with this Order and thereafter will determine the issues on appeal; and

“IT IS FURTHER ORDERED that this Order be served upon the Honorable Robert G. Newhouse, District Judge of the Fourth Judicial District, the Office of the Attorney General, and counsel for the defendant.”

My vote was against this piecemeal procedure; my reasons are readily stated. First of all, there was no precedent for vacating (in essence reversing) the district court judgment without this Court issuing the supporting opinion which has forever been the procedure and has basis in statutory law. There was also no precedent for this Court’s order commanding the district judge to enter judgment of conviction and impose sentence within fourteen days. There was likewise no precedent for this Court in reversing the judgment to retain jurisdiction. This part of the order was tantamount to an instruction to the district judge to again impose a sentence of death. It readily follows, as night follows day, that if the district judge held a sentencing hearing and imposed a life sentence, there would be no automatic review as is provided where the sentence is death. It is of little wonder that the district judge on reading the order of this Court declared to the press that it was so much nit-picking, and that he would bring Creech into his court and read him the judgment imposing the death sentence which had not theretofore been read to Creech in open court.

Secondly, the action taken by the Court certainly bore out the contentions of the Solicitor General as above set forth. If the attorney general was correct, then the Court erred in vacating the death sentence which was first imposed. If the solicitor general was incorrect, the office was entitled to a written opinion passing upon the contention. Such was not forthcoming. Instead, the rather serious break in precedent was handled by a footnote:

“The district judge executed a written document which imposed the death sentence upon Creech. That document was served upon Creech and his counsel. I.C. § 19-2503 and I.C.R. 43(a) require sentence to be pronounced in open court with a defendant and his counsel being present. The district judge did not conform with those requirements. This Court, therefore, by order of the 24th day of February, 1983, vacated said sentence of death and remanded the cause to the district court for imposition of such sentence as the district judge might find just and appropriate to be imposed upon Creech in open court with Creech and his counsel present. Consistent with that order of remand, the district judge convened the court on the 17th day of March, *416 1983 and in the presence of Creech and his counsel, imposed the death penalty upon Creech. The execution of that death penalty was stayed pending these proceedings before this Court.”

[See maj. opin., at p. 365 n. 1.]

The footnote is accurate, other than that it implies that the district judge conducted a sentencing hearing to determine a “just and appropriate” sentence. There was no hearing. The district judge merely brought the defendant into his courtroom and read to him his former judgment imposing the death sentence. From this judgment Creech again appealed to this Court, where it was assigned Supreme Court No. 15000. The first appeal resulting in the order above set forth was No. 14480. After that order was entered, Creech was no longer under any sentence of death, and so remained until March 17, 1983, at which time the district judge carried out the mandate of this Court’s order as the district judge read that order. The district judge read it as simply requiring the formality of having Creech present in court for imposition of the same death penalty previously imposed. In that regard the view of the district judge was amply sustained by a “press release” which the Court prepared and issued along with its order, which was as follows:

“The Idaho Supreme Court issued an Order today remanding the death sentence of Thomas Eugene Creech to the district court.

“The Court pointed out in its Order that the trial judge had imposed the death sentence by a written document rather than imposing the sentence in open court in the presence of Creech and his attorney as required by statute and court rule. Therefore, the Court vacated the death sentence and remanded the case to the district court with instructions that it again impose a sentence upon Creech in open court in the presence of Creech and his attorney.

“The Order indicated that the Supreme Court would retain jurisdiction of the case and that the district court, after resentencing, should immediately furnish the Supreme Court with a transcript of the proceedings.”

If there was any uncertainty in the order itself, the press release clearly told the district judge that the Supreme Court was, notwithstanding the vacating of the death sentence, continuing to lay hold of the case. In other words, the district judge was all at one time being told to conduct a sentencing hearing and arrive at a “just and appropriate” sentence and also to reimpose the death sentence. This is exactly what the judge did, and as I have said there was no hearing. Although the district court cannot be faulted for obeying a clear mandate from this Court, there simply was no authority or precedent whereby and where-under this Court could reverse and remand for resentencing and yet retain jurisdiction of the case. Better that this Court would have agreed with the solicitor general than to have created such a convoluted situation as the one remanded to the district court. Other than for the language of the order and the press release it is hardly to be doubted that a district judge on reversal or vacation of a judgment imposing sentence should not in a capital case conduct the type of a hearing which is statutorily mandated, or as was so in another recent case, flatly defy the mandate of this Court. State v. Osborn, 102 Idaho 405 , 631 P.2d 187 (1981), and State v. Osborn, 104 Idaho 809 , 663 P.2d 1111 (1983).

Thirdly, there could not be, and was not, an orderly administration of justice — important in all eases, but especially critical in capital sentencing cases — with this court vacating the judgment and its imposed death sentence, and at the same time declaring that it somehow retained the jurisdiction acquired when the first appeal was taken on the initial sentencing. Defense counsel was aware that Creech, who had been first sentenced to death on the 25th day of January, 1982, was entitled to the same statutory hearing which this Court directed in Osborn I, but, also saw that this Court was strangely insisting that it had continuing jurisdiction after vacating the *417 judgment the appeal from which gave this Court jurisdiction — along with the statutory provisions for automatic review. Accordingly, made aware that the district judge read this Court’s order and press release as merely requiring the formality of Creech’s presence, defense counsel — faced with a duality of jurisdiction, and aware of the deadline that this Court’s order imposed upon the district court, and with Creech’s main counsel not available, moved this Court for a stay of the order insofar as it directed the district court to act within fourteen days. Responsive thereto this Court ordered that the time for the hearing on remand was extended — “shall be conducted on or after March 14,1983,” and on or before April 4, 1983. This order was entered on the 3rd day of March, 1983. The opening paragraph of the order contained a recitation the language of which could not but have fortified the district judge’s view that he was not to actually accord Creech a second sentencing hearing:

“The Court having entered an ORDER herein on February 24, 1983, temporarily remanding this case to the District Court for the purpose of requiring District Judge Robert G. Newhouse to announce and impose sentence upon the defendant Thomas Eugene Creech in open court and in the present of said defendant and his counsel; ....”

The district court, thus having been granted on the 3rd day of March, 1983, a span of time from the 14th day of March, 1983, until the 4th day of April, 1983, ordered, on the 15th day of March, 1983, that Creech and his counsel appear before the court two days later on the 17th day of March at 9:00 a.m. “so that this court may conduct a hearing and carry out all of the directives of the Idaho Supreme Court.” R., No. 15000, p. 14. Defense counsel immediately filed post-remand motions which included:

(1) Motion (of March 16, 1983).to vacate and reset the sentencing hearing, based on the grounds that one and one-half days of actual preparatory time was insufficient.

(2) Motion (of March 16, 1983) to compel discovery of institutional (state penitentiary) jackets of Creech and the inmate who was killed by Creech.

(3)Motion (of March 16, 1983) to compel State’s disclosure of witnesses (former prison inmates) who by supporting affidavit were alleged to possess knowledge relative to aggravating and mitigating circumstances.

When court convened at 9:15 a.m. on March 17, 1983, with Creech present, the district court proceeded to read aloud the written findings in aggravation and mitigation which he had previously entered, adding that “For the record, at the time I do affirm and reiterate these findings as of today.” The court then took up the pending motions, including those above alluded to, and denied each and every one, and also denied objections to some of the previous and reiterated findings in aggravation. A further objection that a sentencing hearing under I.C. § 19-2516 required inquiry by live sworn testimony was also denied. Defense counsel requested and was granted permission to file with the court motions for jury sentencing and a motion for appointment of a designated medical examiner to evaluate Creech’s ability to intelligently comprehend the proceedings. ' These motions were all denied. Of significance, in the process there was this exchange between defense counsel and the court:

“MR. KEHNE: If the Court reads the Supreme Court’s order as authorizing the Court to do only as it already has done— in other words, read the findings and also read the sentence of death in open court — then I suppose there is no point in me having time to prepare a sentencing review.

“I had actual notice of this hearing Tuesday night, and that simply is not time for me to prepare a series of witnesses to come in and try to prove mitigating circumstances surrounding the crime.

“I think the Supreme Court’s order leaves a little bit to be desired in the amount of direction it gives. On the one hand it sounds like it empowers the Court only to read the findings and the death *418 sentence in open court and follow the statutes on arraignment for sentence.

“On the other hand, the order authorizes the Court to impose any sentence which it feels to be just and appropriate under all the circumstances, which I would suggest gives us the authority to start from Square One and put on evidence and try to convince the Court to impose a sentence other than death.

“And if we are to have such hearing, I have to have more notice in advance to get people here in a day and a half.

“THE COURT: Thank you, Mr. Kehne.

“Mr. Bower, do you have any comments you would like to make in that regard?

“MR. BOWER: No.

“THE COURT: Very well. I am going to deny the motion. I will state why. The Idaho Supreme Court in my opinion has, by their statements, gone along with all the hearings I have had in regard to sentencing.

“I can’t see that there is any more required in this particular proceeding other than an argument. I don’t intend to let the witnesses all come back and al the presentence people brought in and go back clear through farther than that point before I made these findings.

“And I have also been given a deadline, I do note for the record, that I have to have this done. And I might add, this is about the only time I have. I have solid cases that should be heard between now and the deadline.

“So I am going to deny the motion to continue the motion vacating sentencing hearing and reset.

“MR. KEHNE: Just to clarify the record so I’m not charged with a waiver that I didn’t intend, would the Court’s ruling be the same if I secured from the Supreme Court an order extending the deadline?

“THE COURT: Oh, yes, I think we ought to get this matter going. I think it’s up to the Supreme Court to control this matter. If you get an order, you are welcome to do so, Mr. Kehne, and I will abide by the same.

“MR. KEHNE: But as the order reads now, even if the Court had more time, the Court would rule that we are not to start all over again with witnesses?

“THE COURT: Well, not without cause. You haven’t given me any cause. Tr., Vol. 4, pp. 22-25.

All motions being denied, the district court concluded the hearing of March 17, 1983, by again sentencing Creech to death.

III.

As a natural by-product of the unprecedented manner in which this appeal has been processed, we now have pending before us yet a third appeal, which is relevant to that which I wrote in Part III of my opinion released in April of this year. There I mentioned Creech’s letter to the district judge advising of his desire to enter a plea of guilty of the charge of first degree murder, and the alacrity with which he was ordered brought before the judge so he could do so. Effective assistance of counsel was rendered meaningless, but even so, counsel was not allowed to withdraw. At that point, and again at the resentencing under this Court’s mandate, aid of counsel was useless to Creech. That is ground which has been well-ploughed. I mention it only in connection with Creech’s change of mind and his motion to withdraw that guilty plea. Under the dual jurisdiction that this Court created, Creech made a supported motion in both this Court and the district court. This Court denied the motion as inappropriately made in an appellate court. Ordinarily this would be so had this Court not retained a jurisdiction apparently concurrent with the district court. Creech has since presented his motion in the district court, where it was denied, and now that will be before us on appeal when the briefs are in. This Court has indeed woven a tangled web. While it may be, as some say, that Thomas Creech should be helped along in his quest for self-destruction, it is a pity that the orderly administration of *419 criminal justice has broken down in the process.

IV.

On the issue of lack of due process at a sentencing trial to determine whether a person will live or die, it surely must be the law that such a trial is as deserving of due process as the trial at which guilt or innocence is determined. I incorporate here the additional views which are set forth in my opinion in State v. Sivak, 105 Idaho 900 , 396 P.2d 674 , (1983) time constraints under the rules of the Court so dictating. Rather obviously, the majority in this case have now ignored two opportunities to explain away the fundamental error in destroying Creech’s constitutional right to the effective assistance of counsel.

. An additional case cite is Christensen v. Hollingsworth, 6 Idaho 87 , 53 P. 211 (1898). The trial bench and bar may well be surprised to see a citation to a civil case which was brought to reform a mortgage — purely an equitable non-jury type of action.