State v. Card

*460 BISTLINE, Justice

dissenting.

1. THE REPEAL OF THE INSANITY DEFENSE VIOLATES DUE PROCESS.

Even though a majority of this Court, as presently constituted, entertains the view that the legislative abolition of the insanity defense violates constitutional due process, this Court reaffirmed the opposite holding in State v. Searcy, 118 Idaho 632 , 798 P.2d 914 (1990). The doctrine of stare decisis does not allow such a result.

Stare decisis is not a confining phenomenon but rather a principle of law. And when the application of this principle will not result in justice, it is evident that the doctrine is not properly applicable.

Smith v. State, 93 Idaho 795, 801 , 473 P.2d 937, 943 (1970). Stated bluntly, it appears that not everyone who accepts and adheres to stare decisis perceives that allowing the defendant to be executed in violation of the constitution will result in justice. If it is so perceived, then I submit that the well-reasoned views so recently expressed in Searcy, 118 Idaho at 639-53 , 798 P.2d at 921-35 , (Johnson, J. dissenting, McDevitt, J. dissenting), should rule in Card’s case.

A more “compelling and cogent reason” to depart from an unconstitutional legislative rule which is less than a year old does not readily come to mind. With three members of the Court being of the same view, there is no basis for not putting the state of the law back where it was prior to Searcy . It appears that three other cases will be affected: one case currently pending before this Court, one well-publicized trial just concluded, and Searcy’s case. Furthermore, Justice Johnson’s Searcy dissent served to put the trial bench and bar on notice that the issue was not permanently concluded by the Searcy decision:

I am aware that there are other death penalty cases that will be argued before this Court within a matter of days that will again raise the issue of the unconstitutionality of the abolition of the insanity defense. Because the insanity defense is fundamental and because of the awesomeness of death penalty cases, I announce to my brethren on this Court today that I will be prepared to address this issue again in these future death penalty cases, despite the ruling of the Court in this case.

Searcy, 118 Idaho at 640 , 798 P.2d at 922 . The overruling of Searcy will simply return the criminal law to the status which it has forever had since this nation was founded.

2. THE EIGHTH AMENDMENT FORBIDS THE EXECUTION OF AN INSANE PERSON

Moreover, Card raises an issue that was not addressed in Searcy . Card argues that it is a violation of the eighth amendment to abolish the insanity defense because as the law now stands an insane person could be sentenced to death. It is established that the eighth amendment bars the execution of someone who, by reason of mental illness, cannot comprehend the reason for the penalty or its implications. Ford v. Wainwright, 477 U.S. 399, 417 , 106 S.Ct. 2595, 2606 , 91 L.Ed.2d 335 (1986). Moreover, the Supreme Court has strongly suggested that executing those unable to appreciate the wrongfulness of their actions would violate the eighth amendment. 16 Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934, 2954 , 106 L.Ed.2d 256 (1989):

The common law prohibition against punishing ‘idiots’ for their crimes suggests that it may indeed be ‘cruel and unusual’ punishment to execute persons who are profoundly or severely retarded and wholly lacking the capacity to appreciate the wrongfulness of their actions. Because of the protections afforded by the insanity defense today, such a person is not likely to be convicted or face the prospect of punishment.

Of course, Card was not given the protections of the insanity defense.

The majority holds that the eighth amendment is not offended because “Idaho Code § 19-2523 specifically requires the *461 sentencing court to consider ‘the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law at the time of the offense charged.’ ” The flaw in the majority’s logic is that I.C. § 19-2523 only requires the trial court to consider the effect of the defendant’s mental illness. It does not require the court to spare the life of a mentally ill offender, unable to appreciate the wrongfulness of his actions. Under the provisions of I.C. § 19-2515(c), the court may order the execution of someone unable to appreciate the wrongfulness of his actions or to conform his conduct to the law, if the court considers that fact and finds that it does not outweigh the aggravating factors. This statutory scheme violates the eighth amendment. Penry, 492 U.S. at 332 , 109 S.Ct. at 2954 , Ford, 477 U.S. at 417 , 106 S.Ct. at 2606 .

But, assuming arguendo that Searcy was decided correctly and should remain the law, we nevertheless should hold that an individual who could not appreciate the wrongfulness of his actions or could not conform his conduct to the requirements of the law at the time of the offense charged may not be executed.

3. THE COURT’S CONSIDERATION OF THE VICTIM IMPACT STATEMENT IS REVERSIBLE ERROR.

There are two problems with the majority’s analysis in the discussion of the victim impact statement. First, Payne v. Tennessee, 498 U.S. -, 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991), should not apply to this case, even in part, because that case was not the law at the time of sentencing here. Second, the error in considering the statement was not harmless.

Payne does not apply here.

The Court today applies the rule in Payne to this case in an attempt to partially excuse the trial court’s violation of clearly established law. Payne was issued on June 27, 1991, well after the imposing of sentence in Card’s case. It is undisputed that State v. Charboneau, 116 Idaho 129 , 774 P.2d 299 (1989), and Booth v. Maryland, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987), were the controlling cases at the time of Card’s sentencing. The opinion in Payne , overruling Booth in part, was completely unforeseeable. Until Payne was issued it was clear that victim impact statements could not be considered at a capital sentencing hearing. Both parties at trial and the judge knew that. So too, every member of this Court as well as the Solicitor General concedes that at the time of the sentencing hearing such evidence could not be properly considered.

Although the majority seems to assume that Payne applies here, such is not necessarily the case. We have refused to apply federal decisions retroactively before and should do so in this case. See, e.g., Ratkowski v. Ratkowski, 108 Idaho 355 , 699 P.2d 1369 (1985), and Nieman v. Nieman, 105 Idaho 796 , 673 P.2d 396 (1983). The prospective or retroactive application of a decision is a discretionary determination of judicial policy made by this Court after balancing certain criteria. The Court must weigh:

1. The purposes of the new rule;

2. Reliance on prior decisions by the Court; and

3. The effect of the new rule on the administration of justice.

State v. Whitman, 96 Idaho 489, 491 , 531 P.2d 579, 581 (1975).

Here, the new rule does not serve a particular purpose. The Supreme Court merely noted that victim impact statements might be considered relevant by some and held there was no absolute constitutional bar.

We do not hold today that victim impact evidence must be admitted, or even that it should be admitted. We hold merely that if a State decides to permit consideration of this evidence, “the Eighth Amendment erects no per se bar.” [Payne v. Tennessee, 498 U.S. at-, 111 S.Ct. at 2609 ] If, in a particular case, a witness’ testimony or a prosecutor’s remark so infects the sentencing procedure xas to render it fundamentally unfair, the defendant may seek relief *462 under the Due Process Clause of the Fourteenth Amendment.

Payne , 498 U.S. at-, 111 S.Ct. at 2615 (emphasis added) (O’Connor, J. concurring joined by White, J. and Kennedy, J.).

It is also noted that the state does not claim it needed such evidence in order to obtain a death sentence. Rather, it asserts the error was harmless. Thus, the state admits that limiting the application of the rule would not disadvantage it; there is no other compelling reason to apply the rule retroactively.

The second Whitman factor also favors limiting the application of Payne . Card had the right to rely on the clear rulings of the United States Supreme Court and this Court. At the time of Card’s sentencing, we had already clearly announced that victim impact statements were prohibited in Idaho. Charboneau, 116 Idaho at 149-50 , 774 P.2d at 319-20 . That holding was mandated by the Supreme Court’s earlier decision in Booth v. Maryland. The trial court was aware of the law, but chose to ignore it to Card’s detriment. The State should not be rewarded, nor Card punished, for the trial court’s indifference to controlling precedent.

As to the third factor, there will be an adverse effect on the administration of justice if Payne is applied retroactively. If Card’s defense counsel could have predicted that the Supreme Court would partially overrule its then only two year old decision in Booth less than two years later, he could have taken steps to militate the emotional effect of the victim impact statement. Application of the Payne rule to this case would work an injustice because Card has not had an adequate opportunity to address the implications of the case before any court. 17 On the other hand, it is not unjust to require the state and the trial court to adhere to controlling precedent until it is overruled. To the contrary, it is their sworn duty to do exactly that.

The error is not harmless.

It is claimed by the majority that the error was harmless because the trial court did not consider the improper evidence. The court’s comments indicate otherwise. (The comments are set forth again for the reader’s convenience.)

I find it interesting, but an apparently factual part of the law in the State of Idaho today, and not only the State of Idaho but under the Federal Court edict through the Federal system, that when something like this occurs, they take the position that the survivors or family members of the victim are not permitted to make statements or testify to the Court concerning the effect upon the family that this homicide has had.

They say that would prejudice the judge or jury in those states where the jury is involved and cause that person or group of persons to make an irrational decision, to reach conclusions that would be based solely on emotion rather than a review of the facts. However, it is perfectly appropriate for the perpetrator of the crime to have his family’s support and members come forth and speak in his behalf. There is not a prohibition against that. I find that strange myself, but that seems to be the state of the law.

There can be no spokesman here for Eugene and Shirley Morey. The silence is deafening where they are concerned.

Although the court correctly notes that the victim impact statements could not be considered, the comments of the court as to the correctness of the decisions and the proper role of the federal judicial system rather clearly portray that it was in fact influenced by the statements of the family members. Not in the least doubting the court’s sincerity and integrity, seemingly the court, out of kindness and sympathy for the bereaved, was brought to seeing himself as a panacea for the Moreys who undoubtedly perceived that they should have been allowed to speak. Heretofore, and over a long period of time, both former *463 Justice Huntley and myself have argued the unfairness of placing on one single individual, the trial judge, the responsibility of imposing the death penalty. Far better, we have said, that the awesome responsibility should be . placed where it was when Idaho evolved from a territory into a state, namely, in the hands of a jury of twelve who are the peers of the defendant.

In State v. Paz, 118 Idaho 542 , 798 P.2d 1 (1990), this Court adopted a harmless error test which stated simply, “the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt.” Paz, 118 Idaho at 557 , 798 P.2d at 15 , quoting Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 (1967). We also warned that:

This decision should not be interpreted in any fashion to condone or permit victim impact statements in capital cases. Victim impact statements are clearly proscribed by Booth v. Maryland and State v. Charboneau. It is a rare capital case where the inclusion of a victim impact statement will not fatally flaw the entire sentencing procedure.

Paz, 118 Idaho at 558 , 798 P.2d at 17 . In the very next year following that statement of judicial policy, we thrice held the same error was harmless. State v. Rhoades, 120 Idaho 795 , 820 P.2d 665 (1991); State v. Pizzuto, 119 Idaho 742 , 810 P.2d 680, 701 (1991); State v. Fain, 119 Idaho 670 , 809 P.2d 1149, 1152 (1991); see also Searcy, 118 Idaho at 637 , 798 P.2d at 919 (no error for the court to consider victim impact statement where the eventual sentence was life imprisonment). Where are we today? District courts may well question the law as announced by this Court, and be hesitant to apply it full well knowing that this Court has done likewise.

. The lack of a substantial ability to appreciate the wrongfulness of an act was part of the definition of legal insanity prior to the passage of I.C. § 18-207. State v. White, 93 Idaho 153, 158-60 , 456 P.2d 797, 802-04 (1969).

. Oral argument in this case was heard on March 13, 1991. Payne was not issued until June 27, 1991.