Petition — CREECH v. IDAHO (No. 83-5818)

:

RECEIVED

NOV 25 1983

Oris. oe ae LER

SUPREME Crnet y¢

83-5818 |

NO.

IN THE SUPREME COURT OF THE UNITED STATES

October Terr, 1983

THOMAS EUGENE CREECF,

Petitioner,

vs.

THE STATE OF IDAKO,

Respordent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREMF COURT OF THE STATE OF IDANC

Firm: Ada County Public Defender

Address: 303 West Sannock

City & State: Boise, Idaho 83702

Phone: (708) 343-6466 or 336-5460

ATTORNEYS FOR PETITIONER

*Counsel of Record

QUESTIONS PRESENTED*

Does a state capital defendant have a federal

constitutional right to present evidence in his behalf

at @ resentencing ordered after a State supreme court

has vacated his death sentence?

+ There are no parties to this action or in the

courts below other than those parties named in

the caption.

TABLE OF CONTENTS

Page

oT” eee ee ee ee ee et ee ee ee ee ee ee ee ee ee ee

Ce OT Ee a a a a ee 2 ee 2 ee ee ee

0 a a ee ae ee a ee ee 2 ee ee ee ee ee ee

Reasons for Granting the Petition. ........ 79

Cope lusion ae ee ©. 66 6 6 6 6 6 8 0 eo 8 6 eee

Appendix A, Idaho Supreme Court Opinion

“ (1) Opinion of Idaho Supreme Court. .... . Al-A24

(2) Dissenting opinion of J. Suntley. ... . A2S-A4é4

(3) Dissenting opinion of J. Pistline ... . A4@é5-A895

(4) Order of September 2ilst, 1983,

Geran SGmGOTERG « s we we ec ewe ee ow 8 oe Re

SP ee eee ae ee ee ee ae ee

(6) Opinion of J. Bistline of denial

of rehearing. eevee pes-«e te 0 «@ Qe

Appendix B, Pertinent proceedings in the

(jj ha « « « « «6 ¢ 6¢€ 66 8 ¢© «© © &@ 6 6 Bl

1) State supreme court order vacating

death sentence and returning for

0 ee a ee ee ee ee ee ee ee ee ee | |

(2) Resentencing

a a ae ae oe a ee ee oe ee ee ee | ll

Mimetes. «© © es es ee ee ee we wo 0 ow tl ew BBG, BIG

Ce a ee ee ee ee ee |

Death Warrant. ..+-«-cscereeecevse oc « BEF

(3) Order denying all defendant's motions .. B50

(4) Transcript of resentencing. ..... . - BS2, B82

(S) Stay of Bwecution ...<«+-<«-«c«2ee-e4t « WB

(6) Consolidating Appeals ..... + + « « « BSS

Appendix C

Opinion of Idaho supreme court, dissents

Gissent on denial of rehearing. ....... Cl, to end

ii

TABLE OF AUTHORITIES

Cases Page

Eddings v. Oklahoma, 102 U.S. 104 (1982). 4-5,

Gardner v. Florida 430 U.S. 349 (1977). ... 5

Lockett v. Ohio, 438 U.S. 586 (19786). .... 5%,

State v. Arnett, 608 P. 26 778 (Ariz. 1980) . 6

State v. Creech, Appendix A, infra

State v. Osborn, 102 Idaho 405 (1981) ... . 6

State v. Sivak, (not yet officially reported)

1983 Idaho supreme court opinion

No. 118

United States Constitution

et) Ae ee ae ee ee ee ee ee ee

Same Ampmtmeet . « = © eo. ce ec see ee eo oe wo ow aeeee

af eo ee ee ee ee ee ee er ae ee ee

Pourteemth Amendment. . «© 2+ sce ec ce eo 0 aeaeS

Idaho Code sections mentioned by the Idaho courts

§18-4001.

$18-4002.

§18-4003.

Discussed in the

BG-4006. 2. 2 « oo © © 2 State court opionions

and orders, App. A.

§18-4005.

§19-2515.

GG bite oe es

$39-2627. . «© «© © ee © «@

iii

~~,

. 83-5818

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1983

THOMAS FUGENE CREECH,

Petitioner,

vs.

THE STATE OF IDAHO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF IDAHO

Thomas Fugene Creech, petitioner, respectfully

prays that a writ of certiorari issue to review the

Opinion end order of the supreme court of the State

of Idaho which affirmed the penalty of death.

OPINIONS RELOW

The opinion of the Idaho supreme court affirming

the death sentence, the cissenting opinions, the denial

of rehearing and the dissent to the denial are all set

out in Appendix C, infra, pp. A-1-A-105. These opinions

heave sot yet been printed in the official reports.

as

JURISDICTION

The jurisdiction of this Court is invoked under

28 U.S.C. §1257(3). Petitioner was sentenced to death

after raising several federal constitutional complaints

about the Idaho sentencing statutes and procedures.

During petitioner's appeal the Idaho supreme court va-

cated petitioner's death sentence, ordered resentencing

-l-

> wk

to occur, and retained jurisdiction of the original

appeal. During resentencing the trial court refused

to allow petitioner's counsel to present any evidence,

in violation of petitioner's rights under the Fifth,

Sixth, Eighth and Fourteenth Amendments to the United

Stgtes Constitution, and petitioner was resentenced

to death. Petitioner appealed that death sentence.

The Idaho supreme court affirmed (with two of five

justices dissenting) after consolidating the two

appeals and ordering over petitioner's objection,

that petitioner could not brief or argue any issues

in the appeal from the second sentencing.

Petitioner timely filed a petition for rehearing,

which was denied over dissent on September 21st, 1983.

This Petition was filed by mailing within the ary

(60) days provided by 5 supreme Court rules.

STATEMENT OF THE CASE

A sentencing hearing was conducted January 11th,

1982. Witnesses for both the State and the petitioner

were allowed to testify at length concerning aggrava-

ting and mitigating circumstances. The State trial

judge purported to sentence petitioner to death in

writing, in the absence of petitioner and his counsel,

on January 25th, 1982. During petitioner's State

appeal the Idaho supreme court vacated the death

sentence and ordered the case back to the trial

court for resentencing by order dated February 24,

1983. { See the State supreme court opinion, infra,

APP. A» PR- A-4, m. 1).

The trial court, on one and a half (1 1/2) days

notice to petitioner and counsel, convened the second

sentencing hearing March 17th, 1983.7 The manner by

which the trial court resentenced the petitioner to

G@hth violated the federal Constitution and created

the federa) questions raised by this petition. Peti-

tioner moved to vacate and reset the hearing made

because one and a half (1 1/2) 4ays is insufficient

time to prepare a capital sentencing hearing. The

trial court denied the motion anc gave petitioner 10

more time to prepare. (App. BP, infra, op. P-15-1° and

D-50). Capital sentencing on that inadequate pre-

paration time violated petitioner's rights to the

effective assistance of counsel and due process of

law.

¥ That order, in relevant portions, reads:

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

is vacated and the cause is remanded to the Fonor-

able 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 Fugene Creech as to the

said District Judge may appear to be just and

appropriate. In the event that said Judge shall

impose a sentence of death, a warrant therefor

shall issue in accordance with I.C. §2705;

*e

IT IS FURTHER ORDERED that this Court shall

retain jurisdiction of this cause pending compli-

ance with this Order and thereafter will determine

the issues on appeal;

. -. ©]

2. The entire reporter's transcript of the resen-

tencing hearing of ‘larch 17th, 1983, copies of

petitioner's motions and the trial court's orders

on resentencing are all included in App. B to this

petition.

The trial court set resentencing denied various

other motiens filed by petitioner. Petitioner moved

for disclosure of evidence held by the State in the

form of institutional records bearing on the relative

aggressiveness and dangerousness of both petitioner

and his victim. App. B, infra, p. B29, MHewtion) and

p."B-72 (transcript). This information was important

peteuse Petitioner maintained, and the court found,

that the victim initially attacked petitioner without

provocation. App. B, infra, p.%$5,L.6. The petitioner

moved for disclosure of the whereabouts, if known to

the State, of various named individuals who were

material witnesses to the circumstances surrounding

the murder, (App. 8, pp. 8-32) and the identities of

other material witnesses (App. B, pp.®-25 ). All these

motions requested only what is cranted as a right by

the Sixth, Eighth and Fourteenth amendments to the

United States Constitution: ~@ meaningful opportunity

to present a defense in a defendant's capital sen-

tencing trial, through effective, informed and pre-

pared counsel who can produce and examine witnesses.

Those motions were all denied. App. B, p. 3-73 (tran-

script), p. B-50 (orders).

The eighth Amendment requires sentencing authori-

ties to consider all circumstances of the crime and of

the offender before choosing between death and life in

prison.

The Eighth and Fourteenth Amend-

ments require that the sentencer...

not be precluded from considering as a

mitigating factor any aspect of a defen-

Taatte seacaster or record and any of

the circumstances of the offense that

the defendant proffers as a basis for a

sentence less than death. Opinion

of Burger, C.J... in Lockett v. Ohio,

458 U.S. $86, 604 (1973) (emphasis

in original).

The court applied the above language in “ddings'v.

Oklahoma, 455 U.S. 104, 110 (1978). Eddings and

Lockett stand for the proposition that the Eighth

Amgendment forbids the States from sentencing people

to death without considering all the circumstances

of the offense and of the offender at the time of

sentencing.

At resentencing, in direct violation of Lockett

v. Ohio, 438 U.S. $86, 98 S. Ct. 2954 (1978) and

Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869

1962), the trial court specifically denied peti-

tioner an opportunity to oresent mitigation wit-

nesses. The trial court specifically rejected

petitioner's offer to prove what changes in char-

acter and circumstances had occurrec during the

fourteen (14) months since the first sentencinc

hearing.

[DEFENSE COUNSEL: )

[P)robably most importantly, we

would like the opportunity to present

evidence from Doctor Stoner [a psy-

chologist who testified at the first

sentencing hearing) and from the spirit-

ual advisers of the defendant and

* other people who have been sround his

to describe the changes in the defen-

dant's character that have occurred

since the time the last sentence was

imposed.

* ¢-

THE COURT: The motion is denied.

[App. 8, p. -

Gardner v. Florida, 430 U.S. 349 (1977), held

that the Eighth and Fourteenth Amendments were vio-

lated when « death sentence was imposed based partly

on information the defendant had no seaningful oppor-

tunity to rebut. The ~rial judge in this case violated

those amendments and the Gardner rationale by re-

fusing petitioner an opportunity to call witnesses

to disprove information in the presentence report or

to show that the specific findings made by that judge

in support of the first, vacated desth sentence in

this case were wrong initielly or were no longer true

nednuse of changed circumstances.

. Although it purports to be a review of the entire

record as required by statute and case lew,‘ the

Tdaho supreme court's opinion in this case does not

specifically discuss the federal questions createc

by the trial court's refusal to allow petitioner a

meaningful defense at resentencing. An explanation

is in order. At the time of the State supreme court

order dated Pebruary 24th, 1983, vacating the sen-

tence and ordering resentencing, that court had

issued no opinion in the case. After resentencing,

petitioner appealed the new imposition of the death

penalty. The State supreme court by order dated

April 2Jlst, 1983, prohibited petitioner from

, briefing or arguing the issues raised during the

second sentencing hearing. (App. 8B, p. B-85, infra).

Petitioner asked the Idaho supreme court to recon-

sider the order consolidating the appeals (App. B,

B-90-104) and complained of the federal errors in his

petition for rehearing. Pehearing was denied and

'. Yaaho Goode §1S-T077 Is set Gut In Full, Infra.

App. Cc, pp. 5-6 and 6-c. ,

6. The Idaho supreme court hes ruled that the legis-

lative policy of Idaho Code §19-2827 requires that

court to review the entire record of capital cases

for error. State v. Osborn, 102 Idaho 405, 631 P.

24 187 (1981). :

only the one opinion concerning the sentencings

was issued. Although the federal claims raised

in this petition were denied without discussion

by the State supreme court, they were properly

raised below and are row properly before this

Court for review.

€

REASONS FOR GRANTING THE WRIT

The effect of the position of the Idaho

courts is to deny petittoner the opportunity to

present any evidence whatever at his capital sen-

tencing trial, in flagrant violation of Lockett

v. Ohio, 438 U.S. 586 (1978) and Sddings v. Okla-

homa, 455 U.S. 104 (1982) which stand for the

proposition that no capital sentencing authority

can refuse to consider any proffered mitigation

evidence. The Idaho courts’ decision to refuse

to consider any evidence from petitioner is

clearly erroneous.

The importance of this error to the peti-

tioner is incalculably great. He was barred

from any opportunity to disprove those findings

made during the first sentencing. The trial

judge forced petitioner to endure a capital

eontenciag trial without effective assistance

of counsel by refusing discovery of informe-

tion necessary to prepare, by refusing time

necessary to prepare and by prohibiting his

attorney from summoning and examining any

witnesses with information ebout how peti-

tioner hed changed during his fourteen months

on death row.

Even if this petition presented a unique

Situation in which one court at one time allowed

4 capital sentence to be passed by mere reading

of since-vacated findings and death sentence made

and entered fourteen (14) months earlier and pro-

hibited evidence or assistance of counsel, the

pegition would be important because the situation

raised“is a serious error in procedural fairness

where the most process is due: the capital sen-

tencing trial. Unfortunately, the situation is

not.- isolated. The Idaho courts have since vacated

another death sentence and findings, end refused

to allow any evidence at the subsequent resen-

tencing. State v. Sivak, Idaho P

P.2d (Idaho Supreme Court Rerorts

1237, Opinion Number 118, (1983). In State

v. Arnett, 608 P.2¢ 778 (Ariz. 1980), the sentencing

court there simply reaffirmed the many months stale

Criginal findings at resentencing without receiving

new evidence. The Arizona supreme court disapproved

of the procedure but did not reverse because the

defendant 4id not object or request to produce

new witnesses. The same series of events has no

doubt occurred elsewhere.

Thus, the most important consideration making

this an appropriate case for review by this Court

is that the technique of the Idaho courts, described

in two opinions, which will soon be published in

the officiel reporters, is likely to become

commonpiece in State courts throughout the

country if it is not struck by this Court.

Courts are feeling pressure from the public out-

cry against lengthy litigation in capital cases.

How very tempting for courts to adopt the proce-

dure used against petitioner! Rather than take

the time-consuming and politically unpopular step

of reversing an illegal death sentence and re-

mahding the case, State courts can (according to

«

the Idaho courts) retain jurisdiction of the

appeal, vacate the sentence, and order resen-

tencing. The resentencing which takes place

almost immediately with no evidence or witnesses,

mo inquiry into present circumstances, no

effective defense, and no meaningful appeal

is fast and efficient. It is also unfeir and

unconstitutional. This is particularly so

where the State appellate court in its opinion

on review fails even to mention these issues.

Soncerns about the length of death penalty

litigation provide no excuse for denying due

process.

The Court should grant the petition for

full consideration of the problems created

by the summary death sentencing procedure em-

ployed below.

wo.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1983

THOMAS EUGENE CREECH,

Petitioner,

vs.

THE STATE OF IDAHO,

Pespondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF IDAHO

CERTIF* CATE OF MAILING

I, ROLF M. KEMNE, counsel of record for the

petitioner Thomas "ugene Creech, and a member of

the bar of this Court, do certify under oath that

the accompanying Petition:

{1) Was placed for mailing with the United

States Post Office, Main Sranch, Boise, Idaho;

(2) Properly addressed to: Clerk

Supreme Court of

the United States

Washington D.C.

mm 20543

(3) With first class postage prepaid to Wash-

ington D.C.;

(4) Within regular business hours, Movember 2lst,

1933--within the time provided by Supreme Court rules

for filing petitions for certiorari in State criminal

-10-

mate . i« ere. hs -

f

tary Pv

esicding at Boise, Idah

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af "Om issior ? " r TAahe

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198) OPINION wo. 7%

IN THE SUPREME COURT OF THE STATE CF IDAHO

No 14480 & 15000

TATE OF Al

Pisintif! -Respondent ) Twin Falls. November 196) Ters

Filed May 2). 1983

THOMAS FUCENE CREECH ) Frederick C Lyon. Clerk

}

ge fendant-Appei lant )

Appesl from the Disctrice Court of che Fourth Judiciel

District of the State of Idaho, Ada County Honorable Robert CG

Newhouse, District Judge

Appeal from sentence of death imposed on conviction of

irst degree surder ffirmed

Rolf Kehne. Boise, for appellant

David H. Leroy, Attorney General, and Lynn E

Thomas. Solicitor General, State of Idaho,

Boise. for respondent

SHEPARD. J

This is an appeal ftom a death sentence imposed upon

defendant-appellant Thomas Eugene Creech after his plea of guilty

the charge of firse degree surder The cause is before this

urt pursuant to the provisions of IC. § 19-2827, “Whenever the

Geath penalty is imposed, and upon che judgment becoming final in

the trial court, che sentence shall be reviewed on the record by

the Supreme Court of Idaho,” and also upon an appeal filed by

Creech, asserting error in certain proceedings, actions and orders

of the trial court We hold char the sentence was validly imposed

in conformity with che statutory requirements for the imposition

f a death sentence and that the sentence imposed was not in

violation of either the Consticution of the State of Idaho or the

Constitution of the United States. We affirm

APPENDIX Al

The following fects regarding the paerticuler offense

are disciosed by the recore A the ti@e of the offense here in

2ues reech was «4 inmate ' the iga State orrectione,

3 eer g 4 te se ence ! . ‘spree murder

‘ z f this tens« a.e enset ad bee ed [

4 et ana wes ser g 4 Sente e i ‘e axe 4 ion

ensen hed some veers earlier sustained « guns? wound ¢ the

head which hed necessitetec the remova. [ part f his brain end

¢

the placemenyof a plastic place in Mi skull His speech end

sotor fumctions were impaired to some extent Ac the time of the

offense. both Creech and Jensen were housed in the maxigum security

In the maximum security tier, oniy one inmate et any

sne time was ordinarily allowed out of his ceil Creech, however,

leaning duties, he might be st of his cell while another inmate

was out of his cell for exercise or shower privileges

Prior to the offense in questior Creech and Jensen had

engaged in ergument over television and er Jensen's littering

and dirtying the floor, for which Creech, as janitor, was responsible

Apparently the two were not ng i$ terms Although Creech

imself has given more than one version f the murder it appears

thet on the day in question, while Jensen was out of his ceil

Jensen approached Creech and swung a weapon at his which consisted

of a sock containing batteries Creech cook the weapon away from

Jensen, who returned to his cell but emerged with a toothbrush to

which had been taped a razor blade When the two men again met,

Jensen wade some movement toward Creech, who then struck Jensen

between the eyes wich che battery laden sock, knocking Jensen to

the floor The fight continued, according to Creech's version,

with Jensen swinging the razor blade at Creech and Creech hitting

APPENDIX A2

LO

——eeo—“‘OSOSCSC;™~O”~~CS™

Jensen with the bettery filled sock The plate iabedded in

jensen's skull shattered. end blood from Jensen s skull was splashed

the floor end walis Finally. the sock broke end the betteries

fell owt, end by that time Jensen was heipiess Creech ther

mmenced kicking Jensen about the threat end head Some ( ise

later «a guard noticed blood. and Jensen was taken to the hospicel,

where he died the same day There is some evidence in the record

indicating that Creech hed been enticed by other inmates to “do

lensen in# but the district judge did not decide or find chat the

murder hed been performed on contrect or by plan

Creech was charged with first degree murder and initielly

pleaded not guilty However, later and apparently it. ~esponse to

a letter froe Creech, he and his counsel were brought into court

to entertain Creech s request to change his plea to guilty Over

the objections of defense counsel, that guilty plea was eccepted

and the court set a date for a sentencing hearing Prior to that

sentencing hearing, defendant's counsel demanded « jury trial on

the issue of apgravating anc mitigating factors and also demanded

sentencing by a jury Defense counsel further demanded « sentencing

hearing formal in nature and based solely on the testimony of live

Witnesses. and he objected to any consideration of hearsay evidence

to be used in the formulation of findings on aggravation and

mitigation All of those demands were denied

Ac the sentencing hearing, testimony was offered by both

the State and the defense, relating to the mental condition of

Creech A psychiatrist, testifying on behalf of the Stare. offered

as his professional opinion that Creech did not suffer froe any

organic brain syndrome, did not generally depart from realiry in

his day to day life, and was able to appreciate the wrongfulness

of his conduct and conform his acts to the requirements of the

}

law A psychologist, testifying for the defense, offered as his

APPENDIX A3

———— LL

opinion that Creech. during the fight wich Jensen, lost his capacity

to appreciate the wrongfulness of his conduct and to conform his

comduct to the requirements of the lew. The psychologisc further

testified that. in his opinion. Creech suffered from antisociel

persomality disorder. from e learning deficit, from schizocypel

personality disorder, and from a borderline personality disorder.

The district court, although not expressly ruling on che sanity of

Creech. did find that the defendant was of adequate intelligence and

capable of being trained and educated, and further found that the

murder wes wa intentional and calculated act

Following the conclusion of the sentencing hearing, the

district court made its written findings and pronounced sentence of

;

+

death upon Creech

The issues presented on this appeal are whether I.C. §§

19-2515 - 2516 require a judge's findings in mitigation and aggra-

vation and the imposition of sentence to be based solely on evidence

adduced from witnesses personally present and cescifying in open

court at the sentencing hearing, whether the district judge here

committed error in his weighing of che aggravating and micigating

circumstances, and finally, whether the imposicion of che death

penalty, under our statutory scheme which allows che imposicion of

the death penalty by a judge without participation or recommendation

of jury, is unconscitutional We answer all three issues in che

negative and affirm the holding of the district court below.

1

The district judge executed a written document which imposed

the death sentence upon Creech. That document was served upon

Creech and his counsel 1.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 districe 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 the imposition of such sentence

as the disctricc 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, 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.

APPENDIX A4

At the outset of che sentencing hearing the State requested

that the court take judicial notice of the court's entire file and

of the presentence report which the district judge had ordered be

prepared. Defendant objected and demanded that the entire sencencing

record be produced by live witnesses tescifying in open court,

basing his demand on I.C. §§ 19-2515 - 2516 and the case law

interpreting those statutes That demand was treated as 4 motion,

which was denied.

gle mote at che outset chat a sentencing decision made

solely on the“Basis of live testimony is noc constitutionally

mandated. Rule 32(c) of the Federal Rules of Criminal Procedure

provides as a matter of course that the probation service of the

urt shall make a presentence investigation and report to the

court before imposition of sentence The use of che presentence

report over defendant's objection has been upheld, despite che

contention that the report contained hearsay Gregg v. Georgia,

428 U.S. 153, 204-206 (1976); United Staces v. Tucker, 404 U.S

443 (1972). Gregg v. Uniced Scactes, 394 U.S. 489 (1969). State v

Johnson. 101 Idaho 581, 618 P.2d 759 (1980). Uniced States v

Ferreboeuf, 632 F.2d 832 (9th Cir. 1980). cert denied, 450 U.S

934 (1981); Gelfuso v. Bell, 590 F.2d 754 (9th Cir. 1976) This

Court has held chat the trial judge has broad discretion in deciding

what evidence is admissible ac the sentencing nearing. State v

Johnson, supra, and chat the rules of evidence do not apply to the

sentencing process, Stete v. Johnson, supra; State v. Tucker, 97

Idaho 4, 539 P.2d 556 (1975). All of the above holdings comporc

with the constitutional mandate “that chere be taken into account

the circumstances of the offense together with the character and

propensities of che offender.” Pennsylvania ex rel Sullivan v

Ashe, 302 U.S. 51, at 55 (1937). Accord Enmund v. Florida,

v.S. _, 102 S.Ce. 3368 (1982); Williams v. Oklahoma, 358 U.S.

576 (1959), Williams v. New York, 337 U.S. 241 (1949). We further

APPENDIX AS

a ' -

note that the Uniced States Supreme Court has in several instances

set aside « death sentence, where che Court deemed that the circum-

stances under which the sentence was imposed did not allow the

proper in-depth consideration of the particular circumstances of

both the offender and the offense involved Engund v. Florida,

supra, Eddings v. Oklahoma, =SsU.S. _, 102 S. Ce. 869 (1982).

Lockett v. Ohio, 438 U.S. 586 (1978), Roberts v. Louisiana, 431

U.S. 633 (1977); Woodson v. North Carolina, 428 U.S. 280 (1976);

Winston ¥. United States, 172 U.S. 303 (1899). See also, Jurek

v. Texas, 428 S. 262, 271-273 (1976).

Thus, the argument of appellant chat the matters which

may be considered at a sentencing hearing gust be limited to

testimony adduced from witnesses there present must find its

foundation, if any, in interpretation of the language of [1.C

$$ 19-2515 - 2516 I.C. § 19-2515 provides in pertinent parc

“(a) After a plea or verdict of guilcy.

where a discretion is conferred upon the court

as to the extent of che punishment, the court,

upon the oral or written suggestion of either

party thac there are circumstances which may be

properly taken into view either in aggravation

or mitigacion of the punishment, may, in its

discretion, hear the same summarily. at «a

specified cime, and upon such notice to the

adverse party as it may direct

“(c) In all cases in which the death

penalty way be imposed, che court shall, after

conviction, order a presentence investigation

to be conducted according to such procedures

as are prescribed by law and shall thereafter

convene a sentencing hearing for the purpose of

hearing all relevant evidence and arguments of

counsel in aggravation and mitigation of the

offense. At such hearing, the state and the

defendant shall be entitled to present all

relevant evidence in aggravation and mitigation

: Evidence admitted at trial shall be con-

sidered and need not be repeated at the sentencing

hearing. Evidence offered at crial but nor

admitted may be repeated or amplified if

necessary to complete che record.” (Emphasis

added. )

1.C. § 19-2516 provides

APPENDIX Aé

: "19-2516. Inquiry into circumstances --

Examination of witnesses. one circumstances

must be presented b wet testigony of

witnesses examined court, except that

when a witness is s s or infirm as to be

unable to attend, his denenteton 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 @ judge thereof, in aggravation or

mitigation aia ao punishment. except as

se in this and che preceding section

Wieshoste'a “ae;

Tiere the district court accepted « presentence reporc

oa

compiled by « probation officer which included recitations of prior

murder convictions, pending charges of first degree murder, other

felonies of which Creech had been charged or convicted, the transcript

a a prior trial in which Creech was convicted of first degree

murder, reports of psychiatric interviews, letters from Creech. and

the manuscript of an autobiographical paper written by Creech, all

>9f which material was considered by the sentencing judge in che

Appellant asserts that any reasonable interpretation of

iC § 19-2516 gandates that only oral testimony is to be adwicced

anc consicerec in a sentencing hearing and hence the admission and

- - wir ne

siderati f the w ten presentence report was error, particularly

here appellant had demanded that the hearing be limiced to

ive testimony

Appellant's assertion regarding the requirements of I.C

§ 19-2516 has been considered and rejected by this Court in the

recent case of State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981)

In Osborn it was held that the statute does not Cisplace or exclude

the discretion otherwise granted to the state as to the procedure

of presenting evidence of aggravating circumstances at the sentencing

hearing There che Courc stated

APPENDIX A?

“The last sentence of I.C. § 19-2516 makes

it clear that we are to treat both sections as

together setting forth the procedure to be

Sol ieued in such hearings. The statute pro-

vides that evidence previously presented at

trial need not be repeated and indeed may be

amplified if desired. The parties are ‘entitled

to present all [other] relevant evidence they

desire. The manifest intent is to place as

much possible relevant information as can be

provided before the sentencing court. This

also serves to provide this court with as such

information and as complete a record as possible

for appellate review.” Id... 102 Idaho at 411-412,

631 P.2d 193-194 (brackets in original).

7 In Osborn it was noted that the “unreasoning adherence to

the formal réquirements fof I1.C. § 19-2516] would not materially

add to the achievement of statutory objectives” and held that the

adzission of the presentence report was not error. Id., 102 Idaho at

413, 631 P.2d 195

Under che established rules of statutory construction,

we are required to construe the language of I. C. § 19-2515 as being

,

consistent with the language of I.C. § 19-2516, if such construction

is at ali possible As we explained in Union Pacific R. Co. v. Board

of Tax Appeals, 103 Idaho . 654 P.2¢ 901, 904 (1982)

“Statutes which are in pari materia are to

be construed together to the end that legislative

intent will be effecced. [Citations omitced.] As

stated in Meyers v. City of Idaho Falls, 52 Idaho

Bi, 39-90. IC ¥ 24-6 , 629 (932):

“The rule chat statutes in pari materia

are to be construed together means that

each legislative act is to be interpreted

with other acts relating to the same matter

or subject. Statutes are in pari materia

when chey relate to the same s ect. Such

statutes are taken together and construed

as one system, and the object is to carry

into effect the intention. Ic is to be

inferred that a code of statutes relating

to ome subject was governed by one spiric

and policy, and was intended cto be consistent

and harmonious in its several parts and pro-

visions. For the purpose of learning the

intention, all statutes relating to the same

subject are to be compared, and so far as

still in force brought into harmony by

interpretation.’ (Citations omitted.)”

APPENDIX A®

Since both statutes deal with the same subject matter, i.e.

sentetcing procedures, we are enjoined to compare and harmonize

thea.

I.C. §6 19-2515(c) clearly requires that. "(ijn

all cases in which the death penalty say be imposed, the court

shall, after conviction, order @ presertence investigation

to be conducted according to such procedures as are prescribed by

law.” Hence, no discretion exists in the court, other than to

order therconducting of a presenctence investigation I.c.

§ 20-220 secé out the scope of such investigation, requires a

written report, and gsandactes

“The parole and probation officer shall inquire

into the circumstances of che offense, criminal

record, social history and present condicion of

the defendant. Whenever practicable, such invesci-

gation shali include a physical and mental exami-

nation of the defendanc.”

A logical extension of appellant's argument would require

an investigation to be completed,'a written report to be submicted,

it upon the demand of the defendant, the court to refrain fros

reading the report Such a result would be f course, anonsalous

a 3 mine esg¢at we > id tha tne l Sine A4NRUEZC OF ‘ . 4 19-

16 cleariy and unambiguously provides an exception to the other-

wise required oral testimony and chat those authorizations of I.C

§ 19-2515 fall within the purview of the intended exception

Appellant argues chat interpreting the presentence

investigation requirements of I.C. § 19-2515 as an exception to the

live witness requirement of I.C. § 19-2516 renders the live witness

requirement a nullity As noted above, we do not find the two

statutes to be irreconcilable because of che exception language,

but in any event, if che provisions of the ctwo.statutes could not

be harmonized, then the provisions of I.C. § 19-2516 would be

construed to be superseded, since I.C. § 19-2515 is the later

enacted statute. Mickelsen v. City Of Rexburg, ii scanc

30S, 612 P.2d $42 (19860).

As stated in State v. Yoelin, 94 Idaho 791, 794,

498 P.24 1264, 1267 (1972), the court is free to consider

the results of the prehearing investigation if the reliabilicy of

the information contained in che report is insured by certain

protections, i.e..

"(1) chat the defendanc be afforded a full

w OT chet the dotendent be afforded @ reence-

able opportunity to examine all che materials

‘ contained in the pre-sentence report, (3) that

the defendant be afforded a full opportunity to

explain and rebut adverse evidence

Accord State v. Johnson, 101 Idaho 581, 618 P.2d 759 (1980).

citing Williams v. New York, 337 U.S. 241 (1949), Scace v. Ballard,

93 Idaho 355, 461 P.2d 250 (1969) Here there is no contention

thet the defendant was not afforded chose protections, and the

defendant has at no point. either here or below, challenged che

truth of any of che material contained in the presentence reporc.

We hold that the court's admission of and consideration

of the presentence report was not error

Appellant next asserts chat the disirict court coomiccted

reversible error in its finding of aggravating and mitigating

circumstances He asserts that the aggravating circumstances are

unsupported in the record, that the court wrongly included in its

weighing procese non-statutory aggravating circumstances; that

the statutory aggravating circumstances which the court may

consider as listed in I.C. § 19-2515(f) are unconstitutionally

vague, that the court unconscitutionally failed to consider the

reduced capacity of the defendant at the time of the gurder as

being a mitigating circumstance; and chat the weighing process of

I.C. § 19-2515 is unconsticucional, in that it allows the imposition

of a death sentence where aggravating circumstances do not outweigh

micigacing circumstances beyond a reasonable doubc.

-10-

APPENDIX Al1O

The decisions of the United States Supreme Court require

that sentencing discretion be directed and limited, so es to

promote consistency and to prevent «4 death sentence from being

‘wantonly” and “freakishly” imposed (Furman v. Georgia, 408 U.S

238. 310 (1972) (Stewart, J., concurring)). and to provide «a

ul basis for distinguishing the few cases in which ic is

imposed from the many cases in which ic is not” (id., at 313

(White, J., comcurring); Lockett v. Ohio, 438 U.S. 586, 599 (1978)

(Burger, ©.J., writing for the plurality). Gregg v. Georgia, 428

7

U.S. 153, 188 (1976) (Stewart, J.. announcing the jJudgmenc of the

court and an opinion in which Powell and Stevens, JJ., join)). At

the same tise, the sentencing process must allow flexibility, in

mrder that it be humane and sensitive to the individual defendant.

4 a - ‘

Eddings Oklahoma U.S 102 S$.Ce. 869 (1982), citing

cmectt v JNio, upra

Thus. an. almost wmavoidable c@mfilic presents itself tec

is flexibly humane and cognizant of the uniqueness of each individual

defendant See, Eddings v. Oklahoma, supra In Ida the

aggravating circumstances which a sentencing judge say consider in

pronouncing sentence in a capital case are clearly laid out in

1C. § 19-2515, and thus, to che extent possible, arbitrariness or

°

he influence of prejudice is avoided, but the necessary individual

re

consideration is nonetheless preserved The open-ended allowance

mitigating evidence provides the defendanc with the opportunity

)

ms

co present every possible justification for a sentence of less

than death Such an unlimited micigaction provision was approved

in Eddings v. Oklahoma, supra. We hold, therefore, that che

sentencing provisions of 1.C. §§ 19-2501 -2523 satisfy those

guidelines, as we understand them, from the various holdings of

the Uniced States Supreme Court in death penalty cases.

-ll-

APPENDIX All

We turn now to whether the sentencing judge complied

with those statutory provisions Appellant argues chat the court

erred in finding beyond « reasonable doubt that the defendant had

previously been convicted of other @urders, chat the defendant

{ exhibited ucter disregard for human life and « propensity to

commit murder, that the defendant was under sentence for first

degree murder at the time of his actions, and that both defendant

and his victim were inmates at the state penitentiary when che

rime oc®urred We have reviewed the record and hold that the

evidence at the sentencing hearing clearly supporcs che trial

court's findings of aggravating and micigating circumstarices

Appellant next asserts chac the trial court erred,

in that the judge weighed non-statutory aggravating circumstances

againse mictigeting circumstances, thereby allegedly violating the

trictures of IC. § 19-2515 This contention appears to arise

from the format chosen by the court in drafting ics finding

“ Facts and Argument Found in Mitigation

Facts and Arguments Found in Aggravatior

inot expressly found beyond a reasonable

gravating Circumstances Found

nm 19-2515(£). Idaho Code

found beyond « reasonable doubr)

Material in brackets added. )

y Ag

io

.

The court is not limited as cto che circumstances ic may

find in aggravation to those listed under I.C. € 19-2515(f£)

Thus, that section of the court's findings denominated "5. Facts

and Arguments Found in Aggravation,” although including circumstances

mot statutorily listed and not expressly found beyond « reasonable

doubt. is not error 1.C. § 19-2515(a) permits che court, upon che

suggestion of eicher party that chere are circumstances wi.ich might

APPENOIX Al2

properly be considered in aggravation or mitigation, to hear those

circumstances. That language strongly

hear all relevant evidence which eithe

contradi

Such an interpretation is noc

which merely lists the statutory agera

one of which must exist beyond a reaso

sanction of death is to be imposed A

evidence of the personality and backgr

available®to the trial judge i rder

individuak defend ne Williams v. New

We hold that the list of aggravating £

is mot exclusive, albeit vw of chose

found ¢ exist be a reasonabie

to be upheld Where as here e sence

his findings are ubstantiate at

sting factors and those factors are n

circumstances ne nas compiiec w c

we find no error

Appellant next asserts that

@S aggravating circumstances by i 5

sticutionally vague, and he specifical

that the appellant here had exhibited

life, I.¢ § 19-2515(£)¢¢ and a "pr

1.C. § 19-2515(£) (8)

In State v. Osborn, 102 Ida!

relying on Cregg v. Georgia, 42 Ss

Georgia, 446 U.S. 420 (1980), we held

language was sufficiently narrow, dire

a challenge of unconscicutional fairne

“A limiting const

placed upon the aggravating

I.C. § 19-2515(€)(6). char

or the circumstances surrouwn

mission. the defendant exhib

regard for human life To

properly

suggests chat a judge should

r party desires to set £

}

‘

cted by I1.C. § 19-2515(£).

vating circumstances, at least

‘

~*

a

‘<

nable do the ulti

ve ated, a Wide

1e accused au

ntence

ve

o-

18?

+

i

‘ voc

challenged sc

- ‘ - aw

c to withstand

jective

‘

.

s state

be

ruction must

circumstances

[b)y che murder

ding its com

utter dis-

lefine

ited

APPENDIX Ai}

this circumstance, it is important to note

the other aggravating circumstances with which

this provision overlaps The second aggravating

circumstance. C. § 19-2515¢f)(2), that che

defendant c ‘ nother murder at the cise

obviously could

ter d f human life, as

i=

could the third aggravating circumstanc

I.c. § 19-2515(£)43). thact the ye ne te

knowingly created a great risk of death to

many persons The seme can be said for the

fourth aggravating circumstance, I

§ 19-2515(£)(4 that the murder was con-

Bpicted — remumeration Since we will not

resume th the legislative intent was to

uplicate any already enumerated circun-

aU

7 stance, thus making i.‘ § 19-2515(£) (6)

me surplusage (See. e.g Norton v. Depr

aa TYdaho 9 S00 PF 7d 7

Employment . 94 idaho ‘ ) P id 825

“~ a Sa ’

T9 77} we hold chat che phrase stter dis-

re gang ll must be viewed in reference acts

ther than those set forth in I §§ 19-

£) (2 and (4 we nclude inscead

at the phrase is mear t é efile ive {

a r ircumsta es gurrouncing ne rice

* exhidic che ighes e utmos ai.ous

teregard for human 1:1%« ‘ the ic-dbioodcec

> ~i.“0ss >.ave ace ¥ 5 “ a

Ga a‘ ¢,.5-%i9 c ;

” 4 Ga ‘ ve as a

‘ c* J a Sulfirie« € ‘ si reme Ss woctirey v

‘ ,-4 > rt rY Ts ,5 Sis c A 53.5 er . a4pp.iec tne

iw A ‘ , 3 < 2@7ini a ayvoics me arbitrary

4 " pt i i e cea penai.cy we Cthereiore

: ‘ statu avyvPravating at 2S © at ‘ : I 5 |} ae

f ac it e murder and che circumstances surrounding

efendat exhibited an utter disregard for human life, is not

4 ict Qisay ¥apue

Likewise, we re tc appellant's assertion that I.C

§ 19 5 is impe issibly vague That statute provides

a ne . ° ao a , , 4 . | aa bs « nr .

as 4 aggravating circumstance, tha 4 e cetenda Dy prior

Su r 3u i the coumaissior f the murcer at anc, has

exhibited a pensity ¢ omsir murder which will probably

} ‘ s tinuvuing tnreat ft % et nce sTeRZ and

: that statutory language does not fail as being facial!

APPENDIX Alé4

unconstitutional. Here, as contrasted with the argumenc in

Osborn regarding the “utter disregard for human life,” ic cannot

be asserted that the “propensity” circumstance could conceivably

be applied to every murderer coming before a court in this state

We would construe “propensity” to exclude, for example. a person

who has no inclination to kill but in an episode of rage, such as

juring an emotional family or lover's quarrel, commits the

ffense of surder We would doubt that most of those convicted

of murder@would again commit surder, anc rather we construe the

propensity fanguage to specify chat person who is a willing, pre-

disposed killer, a killer who tends toward destroying the life of

another, one who kills wich less than the normal emount of provo-

: we would |t that propensity assumes a proclivity. a

susceptibilis and even an affinity toward committing che act of

rce

rege v. Georgia, 428 S$. 153 (1976 pinion of

ewat in which Powell and Stevens, J joined), a similar

isi from Ceorgia’s statutor lisc of aggravating circun-

es was upheld, the Courr noting that che Ceorgia Supreme Courte

ad sufficiently narrowed its meaning co avoid ics being indis-

ace applied The Court tated T]he pecticioner points

‘ ; b)(3) which speaks of creating a ‘great risk of

more than one persor While such a phrase might be

susceptible of an overly broad incerpretation, the Supreme Court

{ Georgia has not so construed it.” Id., 428 U.S. at 202

Jurek v. Texas, 428 U.S. 262 (1976). the Coure

-<

rejected an argumenc chat the circumstance of “a probability chat

the defendant would commic criginal acts of violence that would

sticute 4a continuing threat to society” was unconstitutionally

(azure apere che appellant had contended that the provision

required the urt to predict the future Ic was noted that such

APPEWOIX ALS

daily in every sentencing decision and in every determination of

bail, and by parcle authorities constantly in probstion decisions.

Jurek. supra. 428 U.S. at p.275 (opinion of Scewarc, J., joined by

Burger and Rehnquist. concurred in the holding that the statutory

aggravating circumstances of the Texas statute were sufficiently

arrow in definition to withstand a challenge for vagueness

Accord Proffit v. Florida, 426 S. 242, 255 (1976) Ic has also

spellate review is

~s

been notgd chet, where a unifors process of a

built in by way of a statutory requirement, there is an increased

likelihood of consistent. well-guided application of such statutory

uch « syste an assure consistency,

1 a)

aggravating circumstances

fairness and rationality in the evenhancec operation of the state

¢

law Tihis [type of] system serves assure that sentences of

; ob ‘ , > ‘esa? mis’ aA "te y 4 + - 4 Pra fé r. vw

fa. wWisa . oe warn. tia} ’ ~reank.s a* awe sec rt aa ¥

Florida, 425 Ss ‘ 259-26 pini f well in which

‘ewatl " ‘evens ; cnec A rc Jsren Vv .@xas Supra,

- - —_—4

¢. 5 4 C ré ; ¥ ,e ‘ Supra 4 a é

— he

@e Out ‘ ~8ia € i r ‘ c a e ry ap. a. SemtCencing

wf ab. @e rev.iewesu tnis wrt inc Has . ‘ 5 sy- 20a

Sur ‘ ‘ ; e bes forma a pescati c eQguiring Compara. Oo;

@p.ita. case

As applied to this particular defendant, che finding of

propensity was clearly tailored and correct The defendant here

omitted murder at least four times prior to the instant offense,

twice in Idaho and also in Oregon and in California There

resently exist other pending charges of murder in che first

4 aS | s < =: : Yr ing = 2 ge > a a aii e rst

weetee apelis j i@ (@ellimony Of at eyewlliivas , thie

i : r ' fe,

‘ s r 48 ” ers ap+@u were ys clhilet é ‘ . ‘ ae ils

Drove a e appellant is violent and vengeful and chat he

experiences remorse for his actions Letters written by Creech

io

APPENDIX Alé

to law enforcement personnel detail numerous alleged murders

beyond those for which he has already been convicted and intimate

his intentions to kill in the future Creech's own statements

claim responsibility for approximately 40 surders However vague

the statutory language might be argued to be in the ordinary case

(which assertion we have already reiected), nevertheless, as

applied in the instant case, we hold beyond any doubt whatsoever

that the appellant here has exhibited a propensity to commic

rr

murder which will probably constitute a continuing threat to

ll

society.

Appellant next asserts th ial courc erred in

findings regarding agrravac

failed to consider the rec

as

finder, he has

competent, and percinent to th ue of whether the

lcy should be imposed To accept appellant's contention

result in a requirement chac the judge set forth in wricing

every consideration that has been raised or has occurred to him

as a potential factor in mitigation, a requirement we deem to be

unworkable, impossible, and not to be gleaned from the statutory

langua

Clearly, the court heard and considered evidence of

appellant's mental status from che cestimony of the psychiatrist

APPENDIX Al?

and the peychologisct end from the voluminous information svailable

in the presenctence report The court reasonably concluded chat

appellant was of average intelligence, that he had exhibited an

excessive violent rage in committing the crime, and that he was

.

~s*ee

beyond rehabilitation The. sentencing court is charged with

evaluating the expert cestimony and will noc have its findings

’.

reversed absent a clear abuse of discretion. Simpson v. Johnson,

100 Idaho 357. 597 P.2d 600 (1979); Roemer v. Green Pastures

Farms, If 97 Idaho 591, 548 P. 2d 857 (1976). This rule of

“ 5

» 7

e ence applies in criminal as well as in civil cases I.C.R. 26

we hold the above findings of the trial court sre amply supported

Appellant next asserts chat the process of weighing

appravacti and micigating ircumstances, as set forth by I.C. §

, t 1s ur stictcutionail Appe.iant urges us Co edopt 4

standard that. before a death sentence may be imposed, “the

.

sentencing authority must be persuaded beyond a reasonable doub

at al micigatc is utweighed by total aggravation, and that

‘ “a eas aDd.e ud?<t ‘ i Fae! >: seat is juscified

" erwise pena.t Must be .ess a ceat

7 ame < enti was dealt with by this yurt i

‘ ; r l Lda bOS, 631 P.2 lg 1981) Osborn is

Lling and dispositive here We there stated

e shifting che burden of persuasion bur is

concerned instead with the presentation of

relevant information to the sentencer in order

that a reasoned and considered decision can be

reached The defendant's burden is merely to

raise, in the aggravacion-mitigation hearing, any

factors which might possibly tend cto mitigate his

culpabilicy for che offense. He has full

Opportunity to present and argue those factors.

The court below then evaluaces chose factors

under che guidelines set forth in the statute

His decision, including his reasoning, is then

The weighing process, in our opinion does not

: al } Vv

sec forth in detail and this court reviews che

entire process While ic is possible cto speak

of a ‘burden’ of persuasion on the defendant

co establish why he should receive leniency,

-18-

APPENDIX AlS&

we feel that. wider our sentencing process the

facts speak for themselves once presented The

completeness of the evaluative process beiow

and the mendatory review by this court we fee)

withstands constitutionai scrutiny sichme.s

. . — 4 ai _. =a

cate. 28)? Md 69 415 A.2d 8 «

TORR) State v watson i20 Ariz “*. 566 P ld

. Tr as -

12355 ’ 5 = cer coer “«“ . 92%

7 rr -

. 12> ad 4 ed 2 ~ 5 719 , s2té ? 7

" supre 102 Ida at 41 631 P 2d 199

Appellent nest esserts that idah s dea penalty

provisi 6 are wumconstituttonai, in thet jury participation is

not required in the sentencing decision, but rather the discretion

impose a geath sentence is vested in a jucge Ac other places

yy at other times, juries have been given an integral role in

imposing the death sentence However. we hold that jury partici-

pation in the sentencing process is not constitutionally required.

Furman v. Georgia, 406 U.S. 238 (1972). and its progeny

ave piste ly « Jicioned the val tv f death penalty

i su thei capacity ¢t e comsisctemt. pecitica@ia

‘ a rari i erpreted The nsensus ©: the heldings

ea uses is a a deat enai $ eme faiis che

5 : tes t 3 ~S reagsona y ssceptcio.e f irregular

= ST@aAKish appiicati not y a8 cocifiedc dy the

egis < aiso as interpreted t the srts we deem

ns e e@ a2 Key requiremen im the upholding of death

enality provisions as being constitutiona]

yn the subjecct of comparative consistency of judge or

jury sentencing, it was stated in Proffic v. Florida. 428 U.S

s Court has pointed out chat jury sentencing

apical case can perform an important societal

in c

function, Witherspoon v. Illinois, 391 U.S 10,

519 n.15 (1568), = it has never suggested that

fur

y sentencing is constitutionally required. And

c would appear that judicial sentencing should lead,

if anything, to even greater consistency in the

imposition at che trial court level of capital

punishment, since a trial judge is more experienced

in sentencing than a jury, and therefore is better

able to impose sentences similar to those imposed

in analagous cases.” Id., 428 U.S. at 252 (Stewarc, J.,

yined by Powell and Stevens, JJ.) (Emphasis added.)

-~19-

APPENDIX Al?

See aiso Gregg v. Georgia, 428 US 153 (1976)

We hold chat there is no federal constitutional require-

men t f sty participation in che sentencing process and that the

lecision to have jury perticipetion in che sentercing process, as

ntrasted with sGicial discretion sentencing, is within the

i jetermination f the individual states we are left to ar

examinati yf the exercise of discretion t our legisleture in

its adoption of policy Even assuming that it is appropriate for

this srt tq.examine the validity of the legislative policy

c

a

~

ie

>

-

~

determination, we would agree with our legislature chet

ntrol of the sentencing process is preferable to jury parctici-

sci in that the constitutionally mandated consistency of

esult is more probable in che case of judicial sencencing

Sur attention is drawn to r authority or data ther

an the bare assertion of appellant, which indicates that judges

$o not reflect commmic norss mtrary ¢t what may be the case

some states ica? s scpes are or wer @iictists

Ait? jg? taney Gay wear tne rove anc 8:it r an elevatec bench.

‘ neve eless are electé fr é emunicies in which they

ire ré are 4 re ‘ 5 ee ™ Fae trace are arte requ rec to

tand for retenti anc the percentage ft their retention vote is

generally assumec ¢ in parc at least be a result of cheir

Ganun i s evaluation of them and the extent to which they

aply with che cogmmmity s norms and values Indeed, in the

electorate

(es

<

al

rx

e

a number were evidently noc hel<

,

=

4

®

,

e

4

to represent the cogsmumity norms and values and so were terminated

in office So also our districe judges must stand for election

every four years, with che resultant oft-contested judicia]

seats The outcome of recent elections demonstrates that our

jistrict judges are not insulated from their communities and that

their positions are anything buc lifetime sinecures

APPENDIX A20

Further, in evaluating our legislatively sandated death

penalty sentencing in Idaho, we note that the Supreme Court of

a

the United States has often recognized that legislative enactments

are a reliable gauge and “indicia of societal values." Woodson

v. North Carolina, 428 U.S. -28 288 (1976), citing Gregg v

peorgia, 428 S. 153 (1976 We hold chat the policy jJudgmenc

f ix legislature, which places capital sentencing discretion in

the district judges of our state with mandatory appellate review

vested in this Court of statewide jurisdiction, meets any test of

«<

sticutionalitcy

Finally, we turn to the requirements of I § 19-282?

where i every death penalty case this st is enitoined to

View che ‘ r ascertain whethe ass. re'uciceée Or eny

er «ar " factor as infiuvence the determwinati t impose

he eath sentence ar whetnhe the cea ente t excessive r

5 ate ‘ a’ So se 3 Bi.miia ise

ne ave reviewer cnHree ’ the more recent asses come

e! é ixrt whicl ave nvolve the death penalt Ir

a ree 99 [dat 5 ‘ iys/¥ anc tate d

Ida 6¢ 589 d 101 19/79 alchoug bot

ree anc Lindquist had been sentenced ¢t seach this Court

vacate the death sentences on the basis that Woodson v Norct

arolina,. 428 S. 280 (1976 had effectively invalidaced ‘

Idaho s then mandatory death penalty statutes In State v

rial court's holding that at the time defendant Needs was

sentenced on her first degree murder conviction, no valid sentencing

‘

statute existed for the crime of first degree murder, and hence

we affirmed the trial court's maximum sentence for second degree

ince the legislative amendmence in 1977 of our death

sentence provisions to their present form, only one case has been

°2i-

APPENDI* A2l

presented to this Court which dealt with « first degree surder

conviction or «a homicide sufficiently heinous as to arguably be

comparable to the circumstances here as a “similar case” under

3 ’

I. < § 19-2827, i.e., State v. Osborn, 102 Idaho 405. 631 P.2¢d

.

c

> (1981) In Osborn. the Court did not find the death sentence

.

or

~

.

.

isproportionately harsh, but remanded to the trial court

wwe &

we conclude that in our consideration of the proportionality

f the segcence imposed here, those “similar cases’ most nearly

mparable are Creech Lindguist Needs, and Osborn since, despite

' oe : io =

the invalidation of the sentences on other grounds, nevertheless

e facts and circumstances underlying che imposition of the death

aut : 7 ases are wortny : Sideration in weighing

whether the sentence imposed in the instant case is disproportionate

The death penalty was imposed in Creech I, which resulted

: ’ ion for two coumts of first degree murder The record

ere re al sbstantially the same personal background of Creech

wn in the insta ase The circumstances of that offense

Locate the re¢ was hh hiking wich a female friend and they

wer ,ve " ice ’ ~ ne wh suring the course of Che trip were

reech as attempting to flire with his friend Creech

¢ e two men in cold blood and threw their bodies off the side

the : According ¢t the eyewitness reech displayed no emotion

hereafter and acted as if che killings were of no momenc

the victim for the purpose of collecting life insurance policies

_

‘

“

c

%

ry

%

go

-

¢

®

a

»

>

®

1

e

=

®

aq

»~

2)

»~

B

and finally

indguist, at che instance of the victim's husband, mec the pregnant

:ctim at a remote site, where he shor her several times through the

wi ws of her car and then completed the killing by pulling her froa

APPENDIX A22

In Osborn. the defendant had worked with and was « friend

of the victim. who had threatened to inform on the defencant for «

robbery offense The viccia’s partially clothed body was found

alongside « road. She had been extensively beaten about che head

.

.

and face. and shot three times in the head, once in the shoulder, and

In Needs. the defendant had previously been convicted of

homicide end on several occasions had chreatened to kill the victia,

a

who was her hysband She was convicted of the murder of her husbend.

The remains of the victim consisted of a partially burned torso with-

st head or arus Alchough the torso contained numerous stab wounds,

they did r use death, which probably resulted from gumshots

f

eca at r a slit chroaet As above te alchoug? he deat

ente e Ga wii Nave hee 53 ¢ ie was € tha aiic

é enci atute en exisced for the me { first degree murder

we ld tha me of these rece Ida murder decisions

itates ward the grea ing f lenie y mn the prese Case we

i : a e i ~ - a celenca f 4 guilcy of suc previous

imes as ' { Thomas ce has been found deserving of a

S¢ é e less tha tea we have examined ase acing

ack more chat years and our examination fails ¢ disclose

I § 19-2827(g¢) instructs chis Court to “collect and

preserve the records of all cases in which the penalty of

Jeath was imposed from and including the year 1975 Further,

we are charged with determining in each case “[wjhether che

sentence of death is excessive or disproportionate to the

enalty imposed in similar cases, considering both che crime

and the defendant.” I1.C. § 19-2827(c)(3) Alchough we read

these provisions as requiring a comparison of the capital

cases from 1975 to the present, we have deemed it appropriate

to conduct en extensive and thorough review of Idaho murder

ases tur survey has included the following

State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981);

State v. Garcia, 102 Idaho 378, 630 P.2d 665 (1981);

State v. Otto, 102 Idaho 250, 629 P.2d 646 (1981),

Watkins v. State, 101 Idaho 758, 620 P.2d 792 (1980);

State v. Fuchs, 100 Idaho 341, 597 P.2d 227 (1979).

State v. Lopez, 100 Idaho 99, 593 P.2d 1003 (1979); ;

State v. Warden, 100 Idaho 21, 592 P.2d 836 (1979);

-23-

APPENDIX A23

that any such remorseless, calculating. cold-blooded multiple

murderer has (with che exception of Creech |) ever been before

Gretzler, P.2¢ (Ariz.

this Court See however, State v

january 6. 1983) We hold that the deatii penalty isgposed in chis

case is both proportionate and just

A ugh claims of umconstitutional double jeopardy and

ex post fa application of law are not raised by appellant, since

resentencing has taken place as discussed supra, we have considered

such poss#Ble probleags We find constitutional violation in

- . > c ‘

either regard Knapp v ardweil 66/ F.2 4a5 (3 -ir cer

Jenie U (Nov. 1982 See alsc State v sretzier,

supra

accord with e foregoing, we affirs e trial court's

mposition of che death pene

ONALDSON ; and BAKE 4

; State v. Needs 19 Lda B83, 591 P.2d 130 (1979)

State v. Creech, 99 Ida 79, 589 P.2¢ 114 (1979)

State = Lindquist, ed Ldah 66 589 F 2d 101 19 9)

State v. Ward, 98 Idaho $71, $69 P.2d4 916 (19

tate v Beaso ; Ida e Jt é 340 (1973)

tate v. Foley ; jah 2, 50¢ 2d 119 (1973

tate Vv Atwe 3 y carn a” 504 P.2d 39 (1972

State v. Come 944 Idaho 323, 487 P 2d 686 (1971)

state v Racabaugz! 93 Idahc 4 471 P.2¢d 582 aviv

State v illor ; aho 698, 471 P.2d $53 (1970

er c denice dc. > 946 i 97 i

King v ate, 53 Idaho 8 456 P 2d 254 (1969)

ate Gonzales, 92 Idaho i152, 438 P.2d 897 (1968).

arey v. State, 91 Idaho 706, 429 P.2d 836 (1967);

State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963).

State v. Clokey, 83 Idaho 322, 364 P.2d 159 (1961);

State v. Burris, 80 Idaho 395, 331 P.2d 265 (1958),

State v. Snowden, 79 Idaho 266, 313 P.2d 706 (1957);

State v. Owen, 73 Idaho 394, 253 P.2d 203 (1953).

State v. Buchanan, 73 Idaho 365, 252 P.2d 524 (1953).

State v. Golden, 67 Idaho 497, 186 P.2d 485 (1947).

State v. Boyatc, $9 Idaho 771, 87 P.2d 992 (1939),

Scate v. Van Vlack, 58 Idaho 248, 71 P.2d 1076 (1937),

State v. Reding, 52 Idaho 260, 13 P.2d 253 (1932);

State v. Wilson, 41 Idaho 616, 243 P. 359 (1925).

State v Hoagland, 39 Idaho 405, 228 P. 314 (1924),

State v. Ramirez, 34 Idaho 623, 203 P. 279 (1921)

APPENDIX A24

HUNTLEY. J Dissenting

oa

the death penalty is to be impose it s + be here, I gust

issent

r tT would remand for utilization of proper sentencing

©

procedures because the precedent the majority sets here. if

~

-

followed in future cases, will do great violence to two very

basic tenets of the criminal justice system of this state

1) che right to trial by jury and

2) the right of the accused to confront the witnesses

41> &

The tat c itu as £1 ipprove i] }

Bs it rea tocay r { A ] 4

g ¢ t ry t 3 y f

raaea : ‘ A. ;.¢

g ‘ ° " , ° " . ex ted , € , ne + -

i was adopted provided for ry participation in the

apita entencing process Secei l f che Criminal Practice

A »f 1864 provided in pertinent part

[Alnd the jury before whom any person indicted

for murder shall be cried, shall, if they find

such person guilty thereof, designate by their

verdict, whether it be murder of the first or

second degree; but, if such person shall be

convicted on confession in open court, the

court shall proceed, by examination of wit-

nesses, to determine the degree of the crime,

APPENDIX A25

" and give

murder in the second degree,

imprisonment

An

. —_

~€re Hot

‘

extencec

Eve

convicted of murder of the first degree, shall

uffer death, and every person convicted of

sentence accordingly

shail

orial pri

and

the territ

ten years,

in

less than

to life

which

ry person

suffer

‘

som .OF

Bay

Ir ther words, the jury, by determining whether the

WAS § it f icher first or second degree murder

‘ nine whethe r not the death penalt a ld be mposed

Blue Note Inc. v. Hopper. 85 Ida! 15 15 b

196). we stated

«

The provisions of the constitut ertai 5

to the right to trial by jury are nstrued

t at as it existed at the date of the

adoptior ‘ the constitcutior

’ | . < <*

Ander Whipple 1 Ida Ll2. « d >, (1951

‘ ‘ ne — tr c I ,a ° soy 0

5 Lda av . } d . ‘

sed to employ the r ‘ at al s

R ec g ai ‘ he intervening year cre

om "ited ite tr r 10 seat? ena.icy

: ite cM: . i I/6 ; : bo»

‘ ‘ a ’ t 2 Pa. . a

‘ . 4 4 , -- § ls . . ea

ent for turde Rvery pe: .

f ‘ the first degree ha | te

c ef ishe imprisonment in the

rate t for life a the jur may

‘ ‘ Wh ehmaen et ase ff ‘ . ;

‘ le w : ae shall be ir icte

ery person guilty of murder in the second

egres is punishable by imprisonment in the

state prison not less than ten years and the

impriscnment may extend to life

first post-Furkwan session (1973), the Idaho legislature

elected the tury function from 1.C. § 18-4004 and made all

t f first degree murder subject to the death penalty

~a e in an attempt to remove the “cruel and unusual

hmenct’’ aspects disapproved in Furman IC. § 18-4004 was

pnende y striking out the words as lined out below

APPENDIX A26

"18-4004. PUNISHMENT FOR MURDER -- Every

person guilty of murder in the first degree

shall suffer death er be puntehed by impri-

sonment in the estate prisen fer itfe. and

the jury may decide whieh puntehment shaii

be infiteted Every person guilty of murder

in the second degree is punishable by in-

prisonment in the state prison not less than

ten years and the imprisonment may extend to

life.”

The 1973 amendment restored the law to its 1864 standing

After the United States Supreme Court in @ series of

cases declared statutes of other states which were similar to

Idaho's 1973 wersfion unconstitutional, the Idaho legislature

responded in 1977 with the present statutory scheme providing

for inquiry into mitigating or aggravating circumstances as set

forth in I.C. § 19-2515 et seq That amendment changed the

statute back to its pre-1973 language except that it omitted

restoring the jury function and added the reference to I.C. §

19-2515

“18-4004 PUNISHMENT FOR MURDER Rvery

Subject to the provisions of 19-2515, Idah

» —— -- = . ey em - -

Code. every person guilty of murder tn of the

firse degree shall suffer be punished by

death or by imprisonment for life Every

— ~* - al 7 *

person guiity i murcer 6 rt the ¢c

jegree is punishabie by imprisonment tr the

state priser mot less than ten (1 year

nd the {mprisonment may extend to life

Except for four states which entirel abolished capital

punishment in the nineteenth century, every American jurisdiction

has at least at some time employed jury sentencing in capital

cases McGautha v. California, 402 US. 183, 200 (n. 11), 91

S. Ce. 1454, 1463 (1971) During a period of over a century,

beginning in 1838, jurisdiction after jurisdiction that retained

the death penalty replaced its mandatory capital punishmenc law

with discretionary jury sentencing, Woodson v. North Carolina,

428 U.S. 280, 291-92, 96 S Ce. 2978, 2985 (1976) (plurality

opinion) By the time of the Furman decision in 1972, Colorado

was the only state ‘n the nation to impose capitai punishment

without jury involvement in the sentencing process

APPE@DIY AD?

%

Despite the long history at common law and under

statutory lew of the states throughout this nation of involving

the jury in the capital sentencing process. the Idaho legislature

in the present statute enacted in 1977? totally excluded che jury

from its traditional funcet _ The legislative history shows

that the legislature was not even presented with a bill which

provided for jury participation The only bill presented, was

one drafted by the attorney general. Senate Bill 1082, which was

presented t& the legislature with the following statement of

«<

purpose

"RS 1954

S 1082

TATEMENT OF PURPOSE

nly a few years ago, the United States

Supreme Court made new “rules” concerning the

imposition of the death penalty for serious

crimes So that we conformed witch this US

Supreme Court in sneee retation of the federal

Constitution. the aho Legisiature enacted in

1973 our present deat h penalty Sections I5-

L053 and I “Tdaho Code

Then, last year, the United States Supreme

Court again changed the rules relating to

= punishment -- after many states, like

Idaho, had acted in response to its previous

decision The Court, in five cases, set forth

new, more definitive rules concerning sen-

tencing where the death penalty was sought Co

be imposed

The purpose of this bill is to codify

to Tdaho aw these aaa requirements

posed o on the iy thane Present most recent

ited States Supreme Routt daclaloos on

Capital punishment so that we will conform

ith this latest expression of the law.”

(Emphasis supplied. )

J per>

15] | -

The statement of purpose is misleading insofar as it suggests

that the Supreme Court decisions mandated the removal of the

jury from its traditional powers and functions, the United

States Supreme Court never at an earlier time or in this “latest

expression of the law” required jury non-involvemenc

This dissent would be incomplete without a statement

of some of the reasons why jury participation in the capircal

sentencing process is required, not only upon the basis of

= 28 =

APPENDIX A28

ee .C(itititit#w#wweseseseeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

nistorical practice, but also from the standpoint of compliance

with the mandates of the constitutions of the United States and

the State of Idaho An excellent presentation of tlese matters

is set forth in appellant's brief, at pp 69 through 80, which I

adopt by reference and affix hereto as Appendix A

Since jury participation in the capital sentencing

process is part of the right to "trial by jury” as guaranteed

inviolate by Art. 1, § 7? of the Idaho Constitution, I would

reverse and@emand for proper sentencing and would urge the

legislature @o apend the statutes to provide for proper jury

participation in order that future capital punishment cases will

not be subiect to this serious defect

Ida? Code § 19-2516 requires chat the hearing to

fetermine aggravating and mitigating circumstances during the

sentencing process must be presented by the testimony of live

witnesse chat section reading in pertinent part

The ircumutances must be presented by the

é mony of witnesses examined in open court

he attorneys for Mr reech made timely and appropriate motion

ave the proceeding conducted through the use of live wit-

nesses he court denied the motion and took “judicial notice”

file The file contained letters with no foundation, a

presentence report containing a mass of information (much of

which was uncorroborated or unattributed). and newspaper clip-

ping: The court also considered a transcript of a preliminary

hearing which was conducted before discovery had been completed

The position asserted by the majority that the only

way to reconcile I.C. § 19-2516 (providing for witnesses) with

C § 19-2515 (requiring that a presentence investigation

cot

report be ordered) is illogical and.a fallacious syllogisa

APPENDIX A29

a a rr eS” 1 — nn UE EEE —<" = EE =

lowing seaning

(1) A presentence report shall be ordered in

every capital case. § 1%-2515(c)

(2) Findiags aggravating and mitigating

circwastances <a be twsed upon the presen-

tence report ani representations of counsel

unless either party demands a formal hearing.

(3) I¢ requested by ei“her rt tne court

must make {findings of Stal utory poravating

and citigating circumstances base!’ only on a

live record § 19-2516

¢

(4) All evidence and the present: © report

can be @elied on during the weighing process

In Mullaney v Wilbur. “«.: t 6*., 698, 95 S Cr

1381. 1889 (i975 the ‘ t nreme Court stated

’ f ‘ ‘ . ’ i . ‘

Where proof f speciti« determine

whether a deterdant wis. sive r dic the

constitutional requirement for the procedure

controlling the proef cannot cepend on tne

state's choice Ee t f the Litigation

at which the proof i t t as here

the determinatin: ert tatutorily

defined facts may be o: greate importance

than the differer ce ecen ¥ ile 4 anne

cence for Many .e@ssct t ime the state

cannot avoid the « itutional requirements

for procf of those facts ‘by characterizing

them as factor ct? eo ely » the

exten* g tne pu

Capita. seniencing a: -uulitative.y different from

ether sentencing proceedings, and there is therefore a need for

special reliability in the proceesings This was recognized by

the United States Supreme Court in Woodson v North Carolina, 428

US 280. 305. 96 S.Ct. 2978. 2991 (1975)

“{T)he penalty of deach is qualitatively

different from a sentence of imprisonment

however long Death, in its finality, dif-

fers more from life imprisonment than a 100

year term differs from one of only a year or

two Because of that qualitative difference,

there is a corresponding difference in the

need for reliability in the determination

that death is the appropriate punishment in a

specific case

The result flowing from the majority decision today is

rather 4 curious anomaiy in Idaho law i know of no other

> 3D «

APPENDIX A30

“+ proceecing in Gistrict court, presicec over oy & Gssrrict jucge.

and presented by attorneys. wherein hearsay and other incompe-

tent and unreliable evidence is permitted The one exception we

now carve out for relaxed and non-professional evidentiary

standards is in capital sentencing proceedings

Perhaps to some the capital sentencing proceeding is

not as important as other matters routinely conducted in our

district courts -- I prefer to believe that the proceedings rank

very high onethe scale of importance -- both to the concerned

defendant an@ to“pll of those who believe that one important

measure of the quality of a society is the standard of fairness

and procedural safeguards provided by the criminal justice

system

Proffict v. Wainwright. 685 F 2d 1227 (llth Cir

1982), noting that the United States Supreme Court has not

directly ruled on the issue, held that the capital sentencing

proceeding. even though in a hearing bifurcated from the trial

) guilt or innocence, is an integral part «f the trial and that

erefore it is required that the defendant have a right to

confront and cross-examine witnesses. Proffite, 685 F 2d at

1253, reading as follows

“Although the [Supreme] Court has held

capital racy eae proceedings must meet

certain procedural requirements, ict has not

yet delineated the exact scope of consti-

tutional procedural protection to which

capital defendants are entitled See

Gardner v. Florida, 430 U.S. at 358 1.9, 97

5 tc. at 1202 n 9. Whether che right to

cross-examine adverse witnesses extends to

capital sentencing proceedings has not been

specifically addressed by the Supreme Court

and is an issue of first impression in this

Circuit. We must therefore decide this

question in accord with the general principles

articulated by the Supreme Court in its

recent death penalty decisions

The focus of the Court's current capital

sentencing decisions has been toward mini -

mizing the risk of arbitrary decisionmaking

[Citations omitted ] Whereas earlier cases

had focused on the quantity of information

31

APPENDIX AJL

before the sentencing tribunal. recently the

Court has shown greater concern for the

quality of such information Gardner v

Florida, 630 US. at 359. 97 S Cer. at 1205

"hus. it has recognized the defendant's

+.

interest both in presenting evidence in his

favor. Eddings v. Oxlahoma us. _, 102

S$ Ce 869, 11 L Ed 2d I (1982). Lockett v

Ohio, supra, and in being afforded the oppor-

tunity to explain or rebut eviden-e offered

against his Gardner v. Florida, 430 US at

462 97 $.Ce. at 1207 Reliabilicy in che

factfinding aspect of sentencing has been a

cornerstone of these decisions id at 35%-

60, 362, 97 $.Ce. at 1205, Woodson v North

Cafelina. 628 US at 305. 95 Ce. at T95T

Yo Gardner v Florida supra. the Supreme

Court Fe that a \adee’s reliance, in im-

posing the death penalty. on information not

disclosed to the defendant or his attorney

violated the defendant's rights to due process

and freedom from cruel and unusual punish-

ment Gardner is premised on che principle

that death sentences may not constitutionally

Se Imposed on the basfs of Information that

the apital defendant gas been afforded no

pportunity to redu* T"see id at 362, 3?

we at 1906 4 The holding in Gardner

tcwecd simply pr - Wihbits the sse of

formation’. the Court did not in

address the scope of the capital

5s

.

procedural rights in attempting

ressiv recognized the importance of

on by yunsel and adversarial

4ebate to eliciting the truth anc ‘evaluating

the relevance and significance of aggravating

and mitigating’ evidence Id at 360, 97

S Ct. at 1205. The Supreme Court's emphasis

in Gardner and other capital seitencing cases

on the reliability of the factfinding under-

lying the decision whether to impose the

death penalty convinces us that the ri ht to

cross-examine adverse witnesses a. lfes to

capital sentencing hearings The Supreme

Court has recognized the cross-examination as

‘the “greatest legal engine ever invented for

the discovery of truth” California v

Green, 399 US. 149. 158. TS Ce 1930

T3575. 26 L Ed 24 489 (1970) (quoting 5 J

Wigmore, Evidence § 136? (3d ed 1940))

7 — } y+ | aniyvine et 6 hy ~ sentence “Infor-

ince the persam $y} peyote ™. $° oO; rhe pre oe

s

mation were not in cout Creech could not “rebut” through the

jevice of cross examination The presentence report was thir-

een pages long with attachments f hearsay measuring 2 5/8 in-

mes in dept?

APPENDIX A}2

‘The right of cross-examination is sore thar

a desirable rule of trial procedure. Ie is

implicit in the custodial right of confronta-

tion, and helps assure the “accuracy of the

truth-detersining pecans “ Te is, indeed.

“an essential an undamental requirement for

the kind of fair trial which is this country's

constitutional goal " Of course, the right

to confront and to -ross-examine is not

absolute and may, in appropriate cases. bow

to accomodate other legitimate interests in

the criminal process Buc its denial or

significant dimuniction calls into question

the ultimate inte rity af the Fact -findin

process” femphasis in Griginal) and requires

shat the competing interes® be closely ex-

aminedr’ CGhambers v Mississippi, 410 US

284. 295, FE 5 ct O35. TOZ5 “ERs L Ed 2d 297

(1973) (ct®ations omitted)

Where expert witnesses are employed,

cross-examination is even more crucial to

ensuring accurate fact-finding Since, as if

this case information submitted by an

expert witness generally consists of opinions

cross-examination is necessary not only to

crest the witness s knowledge and competence

in the field to which his testimony relates

hut also to elicic the facts on which he

relied in torming his opinions

Finally, we note that the decision ot

the former Fifth Circust 4n Smith v. Estelle

602 F 24 694 (Sth Circ 1979). at: 4. E51 v5

254. 101 S$ Ce. 1866, 68 L.Ed 27 TS9 (1981)

hurtresses our conclusion that appellanc had

a corstitutional right to cross-examine Dr

prehe dbeftore the doctor's report could be

ced in determining sentence In Smith, we

reversed s death sentence that was based in

rr on the testimony of a psychiatrist whose

name the prosecut.on had intentionally mmicted

from its witness list A primary basis for

the decision in that case was that the

rosecution's failure to disclose its intent

call the oe or preventer che defendant's

vunsel from conducting ettective cross-

examinat Lon “See 1d at 699-701 &n 7

Kithough the courte did not specifically

address whether the defendant had a consti-

tutional right to cross-examine the psychi-

atrist, it concluded that his testimony, ‘not

effectively cross-examined by the [defense

attorneys,] carries no assurance of reli-

ability whatever,’ id at 701, and hence that

its use in sentencing the defendant violated

the principles set forth in Gardner v Florida

The reasoning in Sa@ich clearly supports the

view that the right to cross-examine adverse

witnesses applies to capital sentencing

proceedings, at least where necessary to

ensure the ge)iability of the witnesses’

testimony ‘“? (Emphasis supplied )

reech presentence report contained reports of severa:

APPENDIX A33

0 OOO)

g Since the sentencing procedure is an integral part of

the trial, the defendant should be entitled in Idaho to both the

participation of a jury and the right to confront and cross

examine witnesses This case should be remanded for a hearing

which provides those two fundamental constitutionaliy mandated

elements of due process and fair trial

The magnitude and numerosity of Creech's crimes makes

it unpopular and therefore difficult for me to urge any further

proceeding@ and delay in bringing this saga to its ultimate

»*

<

conclusion Nevertheless. I think more important than any one

Idaho psychiatrists and psychologists, a presentence report

with attachments from Ohio, including psychiatric evaluations

from Ohio physicians and An peng chee numerous newspaper

stories, psychiatric evaluations from Oregon doctors and

numerous other materials supplied by persons not presented

for cross-examination.

APPENDIX A34

jie oy

P THE EIGHTH AMENDMENT'S PRINCIPLE THAT

DEATH SENTENCES MUST SATISFY EVOLVING

STANDARDS OF DECENCY AND THE DICNITY OF

MAN REQUIRES JURY PARTICIPATION IN CAP-

ITAL SENTENCING

In view of the “awesome finality of a capital case,”

Kinsella v. Singleton, 361 US 234, 249 (1960) (Harlan,

concurring and dissenting). the Supreme Court has repeatedly

recognized the crucial role juries play in the determination

whethem a capital defendant merits the death sentence Gregg v

Georgia, s@pra. 428 U.S. at 181-82, 190-92. see, Duncan v

Louisiana. 391 U.S. 145, 156 (involvement of jury in capital

cases reflects a “reluctance to entrust plenary powers over

25

14 ¢ aA jnaek! . 5 3d . sUD 5 & 4 d °

life (anc ceat! to one judge or a group of jucges

sat the Eighth Amendment requires at least some jury

participation in capital sentencing can best be appreciated by

reference to the substantive Eighth Amendment standards the

Court has invoked in holding that the death penalty is not

invariably cruel and unusual punishment

Basically, The urt has explained that a particular

. shment is not cruel and unusual if if satisfies two criteria

First. the penalty must accord with contemporary moral and

social values by reflecting “the evolving standards of decency

mark the progress of a maturing society " Gregg v. Georgia,

r

~

-

Dictum in Proffitt v. Florida, 4260 U.S. 242, 252 (1996) (plur-—

ality opinion), notes that the Court has never expressly stated

that the Constitution recuires jury sentencing in capital cases

Proffitt, however, approved a capital sentencing scheme very

different fre Iaho's. In contrast to the complete exclusion

of the jury in Icaho, the Florida scheme entitles the

defendant to an advisory jury verdict on penalty, id., at 249

251-53, and the sentencing judge must abide by a jury

recommendation of mercy unless “the facts suggesting a death

sentence [are] .. . so clear and convincing that virtually

no reasonable person could differ.” Tedder v. State, 322 Se.

24 908, 910 (1975), quoted in Proffitt v. Florida, supra, 428

u.S., at 249. Plainly, Proffitt in no way resolved the con-

stitutionality of all-judge capital sentencing: indeed, in

two post-Proffitt cases a ~ajority of the Supreme Court has

expressly reserve. any decision on that issue. Sell v. Ohio,

438 U.S. 637, 642 mn. __ (1978); Lockett v. Ohio, 438 U.S.,

Ȥ Ba. 46.

Page 1- appendix A]

APPENDIX A35

supra a7gus et 173. quoting +tor gullies. 356 US. 8. iol

(1953) (plurality opinion) Second, the punishment @ust respect

“the dignity of nan” by servings legitimate penc .ogical goals ane

by bearing 4 reasonably proportionate rejationship to the crime

for which it +58 imposed Crees ¥ Georgia. supr4 423 US at

173 In holding that the penalty of death for murder does not

necessarily violate these standards, che Cregg plurality’s

unaistakable theme was thar. under the Eighth Amendment. impo-

sition of the death penalty om 4 defendant must find validation

in the responsible moral and social values of the community that

condemns hite An essential medium of those values is the jury.

To support its conclusion that imposition of the death

penalty in sone circumstances could accord with “evolving stan

dards of decency.” the Gregy plurality lookes to the two most

reliablé sources of responsidie public attitudes and valves

legislatures and juries Thus, even with respect to the general

question whether che death penalty comports with evolving social

and moral standards, the piurality found if nécessary to rely on

patterns of jury behavior The plurality’s emphasis on evolving

standards, id. at 172-73. suggests that this Eighth Amendment

principle is organic. requiring the courts to continually refer

to che moral developaent of American society The courts cannot

rely on legislatures alone as reflectors of responsible community

values Legislators confront capital punishment abstractly.

Brey deternine whether a society is willing to have a law per-

mitting capital punisiment, not whether the society. through the

instrument of the jury. is willing co carry out that law.

Lockett Vv. Ohio, 438 U.S. 586, 625 (1973) (White. J.. concurring

56. The piurality noted that 4 majority of the state Tegisiatures

had reenacted the death penalty after the Court's 1972 Furman

decision, Greg9 *¥- Georgia, 428 v.S. 153, 179-81 (1976) (plurality

opinion). and that since Fureant American juries, though imposing

—

the death penalty infrequently: had done so often enougn to

suggest that they did not categorically disapprove of the venalty

Id., at 181-82. °

page 2 - APPENDIX A

APPENDIX A36

Sa

and

27

dissent ing) Moreover. « statute is static, and, a8 public

values change. it mar become a less reliable indicator than the

‘udgment

jury Therefore, unless juries. one of the two

essential barometers f social values. play some role in capital

gene r

determine whether

encing. the courts cannot confident)

shment does indeed ntinue to comport with respon-

- . ary re » sever

The Eighth Amendment demands more, however

‘ ‘ vw nerm: +)

al social approval of the death penalty as a permissioie

. —. { "sn oma i

means of punishment Because the death penaity is ‘so profoundly

different fwwm all other penalties.” Lockett v. Ohio. supra,

temands individualized consideration of the propriety o

28

S at 605 (plurality opinion), the Eighth Amendment also

’ ‘ wean " lh 4

sentence in every capita. case Ibid Given itihe need

treating each defendant in a capital case with that cegree

resent t © luti f mMunity sentament in criminal

Ving cha jury behavior in such cases sO aS tO Minimize

ct} increase. “ess, The "eutralization of Severe

Penalties: Some Traffic Studies, 10 L. § Soc. “ev. 403, 416

1976) nc &S8 Sentiment against the Vietnam War rose fror

$63 to 1971, so dic jury acquittals in draft-evasion cases.

tzer, Enforcing the Selective Service Act: Deterrrence of

mtaal Violators, 30 Stan. L. Rev. 1149, 1156 n. 3 (1978).

Indeed, in the last 9 years, 8 of the Justices have written

Of joined opinions that look to the pattern of jury verdicts

in support of a conclusion about the constitutionality of the

death penalty, either generally, or for particular crimes.

ockett v. OnMio, 438 U.S. 586, 624-25 (1978) (White, J.

concurring end dissenting): Coker v. Seorgia, 433 U.S. 584

996 (1977) (White, J., joined by Stewart, Blackmun, 6 Stevens

~J.); Hoodson v. “North Carolina, Supra, 428 ".S., at 293

(Stewart, Powell & Stevens JJ.): Furman v. Georgia, supra, 428

U.S., at 181 (Stewart, Powell & Stevens JJ.): Purman v Georgia

me ‘

supra, 408 U.S. at 439-40 (Powell, J. dissenting, joined by

Burger, C.J., and Blackrun %& Rehnquist, JJ.);

(Brennan, J.). ; -); ad., at 299-300

Page 3 - APPENDIX A

APPENDIX A}?

capital sentencing schemes must ensure that individual death

sentences satisfy the moral demands of evolving standards of

decency See, Woodson v North Carolina, 428 U.S. 280, 303-305

(1976) (plurality opinion) ; Godfrey v. Georgia, 446 us 420,

427-28 (1980) (plurality opinion) Whatever partial role the

legislature can play in reflecting responsible public sentiment

ity of the death penalty only a jury can

ensure that 4 particular death sentence meets this Eighth

Amendment command As the Gregg plurality stressed, “"one of

the mest important functions any jury can perform in making

a selectidh [between life imprisonment ane death for a defendant

convicted in a capital case} is to maintain a link between

contemporary community values and the penal system ‘" Gregg v

Georgia, supra 428 U.S at 181 (plurality opinion, quoting

. * ou, 5 = ‘ r r ‘ -~.

witherspoon v. Illinois, supra 4991 US at 519 0 15, see

roffite v. Florida, 4<5 U.S. 242, 252 v7e (plurality op-

resting the ceat penait against the seconec §&

stantive Eight Amencment req rement, tne tignit f ma

regg stated that e of the two legitimate penologicas goais

ustiftying exec tion was retrit ti reve st TRia Supra

-

+25 at i155 ‘rege thereby reinforcec tne pri iple that

the proper inflictior of the death penalty is af essential.iy

communal decision requiring 4 reflection of responsible communal

29

values “Indeed, the decision that capita: punishment may be

the appropriate sanction in extreme cases is an expression of

the community's belief that certain crimes are themselves so

39. the plurality Stressed that “capital ounishment 18 an ex~

pression of society's moral outrage at particularly offensive

conduct,” and that ‘‘(t)he instinct for retribution is mart of

the nature of man, and channeling that instinct in the admin-

istration of criminal justice serves an important purpose in

promoting the stability of a society governed by law'” Grego

v. Georgia, 428 .S. 153, 183 (1976) (plurality opinion),

quoting Furran v. Georgia, 408 U.S.., at 308 (Stewart, J.,

concurring).

Page 4 - APEERDIA & APPENDIX A38

grievous an affront to humanity chat e only adequate response

may be the penalty of death ” Gregg v Georgia, id., at 184

(footnote omitted) (emphasis added Here again, jury involve-

ment in capital sentencing is necessary tc ensure as a general

matter that the death penalty properly reflects the attitude of

society toward a give lass of crime But as the same plu-

rality noted on the same day in Woodson v North Carolina, supra

425 at 304, “the fundamental respect for humanity underlying

the Eigh Amendment requires msideration of the character

a re 4 of the individua f fende a the circumstances f

«

the pat plar offense as a « sctituti ally indispensabie part

f che { ess ¢ nflicting the pena f deatt emphasis

ade 7 ‘ a prevailing s& Lai he ef retriduti mus

. the genera. perm i C . tne 2€ at penarity

i e int s : tne eat ence e in particuiaét

th regard, the t spensable in ensuring

< c see seen retri t against the particular

efe c 5 that must é etween iife impris vent

: 5 ishment " ittie more nd t ad nothing

‘ Y express tne mscience s tne OmmMuNn iC c tne

bs est ite r ceat? withers} c lilinoi

pra at 19-2

JUDGE Al 14 ANNOT ADEQUATELY REFLECT

COMMUNITY VALUE IN THE SENTENCING PROCES

The rualitative difference between death and other

penaltie alls for a greater degree of reliability when the

feath sentence is imposed." Lockett v. Ohio, supra, 438 US. at

604 (plurality opinion) (emphasis added) A death penalty

procedure is unconstitutional if it is so umreliable that it

reates the risk that the death penaitry will be imposed in

actors which may call for a iess severe penalty.” Id

at 605 Since the Court has held that death sentences must

tc with the community's sense of evolving standards of

Page 5 - APPENDIX A

APPENDIX A39

Seca y Gne st8 segitimate desire for moral retribution, an

essential question is whether judges alone can reliably reflect

the communal values that are the source of the constitutionalicy

of capital punishment

By definition, juries. not judges. are “the cross-

section of the community,” reflecting community values Duren

v Missouri, 439 U.S. 357, 389 (1979) Only a representative

jury assures “meaningful community participation.” Ballew v

Georgia, 435 US 223, 235 (1978) (plurality opinion) Jurors,

unlike judges. are selected to enhance the likelihood that they

¢

represent the whole range of community beliefs and backgrounds,

Tayiow v. Louisiana, 419 U.S 522, 531-33 (1975). the different

segments of the community bring to the representative jury

‘perspectives and values that influence both jury deliberation

anc resuit,” id, at 532 n_ 12 see. Humphrey v. Cady, 605 U.S.

504, 509 (1972) Moreover the sheer difference in size between

a twelve-member jury panel and a single judge may bear signifi-

cantiv on the validity of a sentencing decision under the Eighth

Amendment Canvassing expert empirical studies, the United

states supreme Court has concluded that the likelihood that a

Gecision in a criminal case correctly applies “the cowmon sense

of the community to the facts" increases with the number of

30

decisionmakers. Ballew v. Georgia, supra. 435 U.S at 232.

Twelve individuals are obviously more vetine ¥ reflect the

prevailing views of society than one person

A jury need not engage in questionable speculation to

30. Ballew aiso amassed considerable empirical evidence to prove

——— -

that reducing the number of decisionmakers in a criminal case

impairs the accuracy, fairness, thoroughness and consistency

of the decision, generally to the detrimentof the defendant.

Ballew v. Georgia, 435 U.S. 223, 232-39 (1978) (plurality

opinion).

31. Significantly, every state Authorizing jury involvement in

capital sentencing appears to require a jury of twelve

persons. Gillers, supra rote 22, at 63 n. 298.

~~

Page 6 - APPENDIX A APPENDIX A40

~

detearmine what community sentiment would say in a particular

case Its very function is to bespeak that community sentiment

by exercising its own tudgment The jury's response is so-

ciety's response Witherspoon v. Illinois, supra, 391 U.S. at

519-20 “The jury is a significant and reliable objective

index of contemporary values because it is so directly involved,”

. - - 32 ’ comeras Sud

Gregg v Georgia Supra Gis . a i py 6 Y contrast, jucges

cannot themselves speak for community sentiment If they are to

5 _ - ,s* “Age wr ) a

fulfill the demands of the Eighth Amendment by bringing evolving

standefts of decency and principles of retribution to bear in a

¢ . 1. ‘ di > )

capital punishment case, they can do so only indirectly since

“(C)ourts are not representative bodies They are not designed

to be a good reflex of a democratic society Their judgment is

best informed. and therefore most dependable, within narrow

limits." Dennis v. United States, 341 US 494, 525 (1951)

(Frankfurter. J oncurring) Unable to represent community

sentiment. a judge must undertake to ascerfCain it That is

necessarily a difficult tas made even more difficult because

judges -- whether consicerec in terms of race, sex, or economic

class -- do not reflect the wide range of backgrounds or beliefs

within che community "“'Tjhe reluctance of juries in many cases

32. Judges may te retical), have access to community sentivent

Mrough social contact, as well as through such sources as polls

editorials, *‘ournals, an* newspaper reports. Cook, Public

Opinion and Foceral sucicial Policy, 21 Am. J. Pol. Se. 567,

576 (1977). nfortunatei,, these sources greatly overstate the

Willingness of s.embe:s of the community to impose the death

penalty on scecific cefendants for specific crimes. search

On jury beha..or reveals that jurors are substantially sore

lenient when trying cn actual case and sitting throuch del4-

Derations then they will otherwise indicate. Zeisel 4 Dianrond,

The fffect of pererptor:’ | cnallenges on Jury and Verdict: An

Experiment ire Feccrai istrict Court, 30 Stan. 1. Rev. 49]

$11-12 (15978) (shadow juries drawn randomly and not Subject to

peromptory challenges vote guilty far more often than real

juries; probahly because the defendant's liberty was not in

their hands). People who favor the death penalty in the

Abstract are more lenient when presented with descrivtions of

ectual cases.

33. As of 1979 judges in stare courts of general trial jurisdiction

earned salaries ranging from $24,400 in Oklahoma to $54,205

in California, with a mean of approximately $41,000. Nat'l

Center for St. Cts., Survey of Judicial Salaries 1 (Sent. 1979).

- 6] «

Page 7 - APPENDIX A

APPENDIX A41

SE ae ee cee se ie

to impose the sentence |

death] may well reflect the humane

feeling that this most irrevocable sanction should be reserved

for a small mumber of extreme cases, rege v Georgia, supra,

428 S. at 182 For a variety of reason judges appear less

14

tke t reflect that seme reluctance

As of 19 i ese general jurisdiction courts, only 2.5 percent

f the $,155 Iges were women, and 20 states had no women at

211 these rts. x, vome: ige The "nd of “*okenisn,

me in ¢t ourts, 84, 97-88 inNat'l Center for St. Ces.

978 le aroears that as of 1977 only 2.6 percent of the

iges on these general trial courts were black. 4.7. Crockett,

umber and iastribution of Plack Judges (March 1977) (un-

sbPishe@ charts on file with "let'l Center for St. Cts.)

inally,. the rigorous educational requirements for admission

to the Bar mexe it inevitable that the average educational

tainment of xiges will far exceed that of the community

in gencral

14 Kalven and Zeisel's classic report shows that judges ard juries

lisagree in a substantial number of cases. In a study of 3576

trials, judge and jury reached the same decision about a

iminal defendant only 72 percent f the tine ! Kalven &

Zeisel, ora t 2 at 68 In their scecific study of

the death peraity, the thors report that 4ge and jury dis-

s} t the in i f a deat ntence in 19 oercent

the ases : at 436 TO view the results yet another

a those e: : ¢ or th re emerdecd death judge

: di reed t f ¢? time. In the sseS i

. either ¢e* t th would have vot for

t feath t : t : anc : agjrecd, and

4 ere . lv the o ' " Sted for the death

sit yet rce f the ases w ic the ry

. . . : " > “> > ‘ . 4 T re

f all t» t the scges I>ic ,

at ; port OF de

"{a)rong the leading authorities in cenal

ience, the supoorters of abolition aporeciahbly

itnumbher those wh favour the retention of

@pital punishment. The specialists of the

nocial sciences, penologists, doctors and writers

on sccial science or criminology are, in their

great majority, abolitionists. The supporters

of capital punishment, apart from a number of

polatical figures and persons holding high public

office, are generally jurists with a traditional

training and judges.”

United Nations, Dept. of “conomic and Social Affairs, Capital

Punishment (ST/SOA/SD/9-10-64 (1968).

The reason for these differences may lie in the greater reluc-

tance of judces to depart from what they perceive to be the

letter of the law. See, e.g., ®<dings v. Orlahona, U.S.

», 102 S. Ct... 669 (1982). “Xalven anc Zcise] discovered

in more than one judge “a kind of envy of the freedom of the

jury to reach a decision which he as a judge could not reach*

The judge's role as a strict

Page 8 - APPENDIX A

As a means of reliably reflecting community sentiment

on capital punishment, bringing lay jurors into the sentencing

process “'places the real direction of society in the hands of

the governed and not in the government

Powell, Jury

Trial of Crimes, 23 Wash. & Lee L Rev 1, 5 (1966) quoting De

Tocqueville, Democracy in America 282 (Reeve Tran. 1948)

sintessentially, the right to a jury “is granted to criminal

defendants in order to prevent oppression by the government,”

Duncan v. Louisiana, 591 U.S. 145, 155 (1968). and to protect

agaigs< “arbitrary” action by the complaint, biased, or eccentric

sdge.* d., at 156 It “reflects a fundamental decision about

judg id

the exercise of official power -- a reluctance to entrust plenary

power er the life and liberty of the citizens to one judge or

35

to a group of judges.” Ibid These concerns are even more

"e 39. Weere that discretion would seen to be wholly lawful. s X

ne judge said of draft ev: yn Cases: "I am opposed to con-

r tior I lso belicve that the war in Vietnam is both

smmoral and impractical ‘ty gentencing policies are based usor

the fact that as long as law ewists, it should be imposed to

ffectuate its intent and curpose.” Cook, Sentencing Behavior

( Federal Judaes: Draft Cases--1972, 42 Cinn. L. rev. 597, 623

1973). At the same time, Cook's study also reveals that as

judges (unlike indavidusl jurors) accrue experience in @

javen type of case, their sentencing settles into digtinct

wnd regular patterns of severity or leniency, 1a at 602-03,

so that the judge's first decision whether a person lives or

lies may inspire far more deliberation and consideration than

subsecuent ¢ecisions. for individual jurors, however, the

jravity with which they aporoach their decisions in canital

cases will rarely be affected by such routinization.

Florida studies cited in Gillers, supra note 22, at 67-63 n.

318, report that sentencing judges were significantly more

inclined to impose death than the juries that recormenced

sentences to them. The studies also show that the judges’

decisions seem to correlate with the race, sex, and social

background of the defendant and victim, while the juries

showed no evidence of any such biases. °

38. The Proffitt plurality's speculation that “judicial sentencin

should lead, if anything, to even greater consistency in the

imposition at the trial court level of capital pcenishment, si:

a trial judge is more experienced in sentencing than a jury

and therefore is better able to impose sentences similar to

those imposed in analogous cases,” Proffitt v. Fiorica, supre

note 25, 428 U.S., at 252, must, of course, be read in the

context in which it was made: 18 a statement of the probable

result of the Florida system in which an advisory jury senten

may bh: mitigated at the discretion of the trial judge, or

> 48 <

Page 9 - APPENDIX A

compelling where life stands immediately in the balance

35 cone

increased from life imprisonment to death only where a life

sentence would be manifestly unreasonable. I3., at 249-50;

See, rote 25, supra. ‘“tcrecver, empirical evidence suggests that

incividual state trial judces are not likely to achieve con-

Sistency among death sentences meted out across the statc.

Gillers, supra note 22, at 52-59; Cook, supra note 32 , at 623.

Rather the state can better take advantage of the ourported

ability of judqes to ensure consistency in capital sentencing,

at no cost to the defendant's right to jury sentencing, by

relying on the automatic acoveal procedure by which this Court

must review each death sentence in comparison to other cases

involving similar crimes or defendants. I1.C. §19-2728. ‘See,

Gregg v. Georgia, 428 ''.S., at 204-06; id., at 211-12 (white,

J., concurring).

e 64 «

Page 10 - APPENDIX A

APPENDIX A 44

BISTLINE, J.. dissenting

PART 1

CONSTITUTIONAL RIGHT TO JURY

Travesty Such is my view of a majority opinion which

chocses to answer a dissenting view by ignoring it In the ordinary

case it is pretty much a matter of choice to disdeign comment on a

contrary view, but in @ death sentence case ic is a travesty, and

especially is this so where this Court can as a collegial group

not only a@cerctain and apply precedent. but edd saving graces to

legislative enA&ctments.

In this year of 1983, as cto the constitutional right to

have a jury make the determination between life and death, the

majority contentedly declares chat "At other places or at other

times juries have been given an integral rule in imposing the

death sentence.” “Other times” are in most recent times Since

creation of Territorial Idaho in 1863 and passage of the 1864

riminal Practice Act, and continuing through the time of Idaho's

admittance to the Union in 1890 and until 1973 when the first

post-Furman legislature thought ic was by Furman required to

provide an automatic death penalty on every first degree murder

conviction, death sentencing was a jury determination The

accused participated in the selection of the jury who would

determine his fate. That has purportedly been taken away from the

convicted murder, and his fate falls to'one solitary person--who,

if it were to be known, would undoubtedly rather see the question

back where ic always was--with a jury of twelve. This has been

well documented in the dissenting opinion of Justice Huntley

wherein on the strength of history and precedent he illustrates

that for over 110 years it was the jury who made the decision of

death or life. His assertion chat the right of an accused to have

a jury impose the sentence of death flows from the Idaho Consticu-

tion is beyond conscionable dispute. A majority of the Courr,

-45-

obviously unable to mount a tenable attack on that assertion, say

only that that eliminatior the jury function is a mere matter

“of che legislative policy,”--from which point their opinion

quickly digresses into an exaltation of the cogmon qualities of

Idaho trial judges who, unlike cheir federal counterparts, realize

“that their positions are anything buc lifetime sinecures.” A

position of vulnerability to popular emotions is not necessarily a

plus.

eo Having Joined Justice Huntley's opinion, there is liccle

reason for @urther espousing that which he had laid before the

maforicy But, having read in the majority opinion chat they have

“conducted an extensive and thorough review of Idaho murder

cases," 1, too, have deemed it appropriate to review those cases

listed in footnote 2 of the majority opinion, and I have gone back

to include in my survey some of those early cases which wholly

substantiate Justice Huntley's declaration that it was ever, both

prior to statehood and afterward, clearly the right of che people

and of the adcused to have a jury determination.

In People v. Walters, 1 Idaho 271 (1869), the defendance

was charged with murder in the firse degree The jury, knowing

that a first degree conviction required execution, recommended the

mercy of the Court

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In 1870 a cerritorial jury convicted the defendant of

firsc degree murder, and accordingly he was executed People v.

Ah Choy, 1 Idaho 317 (1870). In 1874 another territorial jury

convicted another defendant of first degree murder, and he, too,

suffered judgment of death. People v. Waters, 1 Idaho 560 (1874).

Three years later four defendants charged with first degree murder

escaped the noose upon jury convictions of second degree murder.

People v. Ah Hop, Yung Sing, Ah Pong, and Hung Chu. 1 Idaho 698

(1878).

In 1877 the territorial legislature in recodifying

statutory law, revised the statute declaring the penalty for

murder to read as it did until a 1919 amendmenc,. other than for

designation of the “Territorial Prison” instead of "Stace Prison.”

In 1901, in enacting the Idaho Code Annocated, following admission

to the Union, the language was then changed to “Srate Prison’--but

all this time there was no change in the penalty for first degree

murder, which was death, and it was mandatory

So, in the transition from territory to statehood,

alchougb the typewriter had by then replaced the pen, it was scill

che jury that made the determination Conviction of firse degree

murder meant death A jury not so disposed could circumvent the

death penalty only by returning a verdice of guilty of second

degree murder Thus, in ate Perr * Idaho 224, 39 P. 655

1894 following admissi into the Unitor che jury's verdict

was

we, the jury in the above entitled

action, find che defendant guilty of murder

f ghe firsce degres

And, as before statehood, the penalty was deat

"*That. whereas, the said Charles Perry,

having been duly convicted of the crime of

murder of the first degree,

“Ic is therefore ordered, adjudged and

decreed that the said Charles Perry be taken

from this Courtroom to the County Jail of chis,

Bannock County, State of Idaho, and that he be

there held until che 28th day of September,

A.D., 1894, and chat upon said day, between che

hours of nine o'clock A.M., and four o'clock

P.M., within the walls of said jail, or at some

convenient private place within the said Bannock

County, and in the manner made and provided by

the Scatues of this Scate in such case, he, the

said Charles Perry, be hung by the neck unril

he is dead.’ And the Sheriff of Bannock

County, Idaho, is hereby directed cto enforce

the execution of this judgmenrc D. W. Standrod,

Judge."

In 1911 the statute governing the penalty for first

degree murder was changed to read as it continued to read until

-48-

a ~

knowledge is chac trial judges in Idaho have properly instructed

the jury. An example which is preserved in our Idaho Reports by

reason of a challenge to such instructions is State v. Clokey,

supra The trial court instructed the jury that certain evidence

had been admitted “not for the puroose of establishing or tending

co establish che guile or ‘innocence of this defendanr but

is relevant and may be considered by you only as it may assist you

im arriving at the ounishment to be inflicted upon che defendant

should you find him guilty of murder in che firse degree

The Court used the opportunity of Clokey to remind the trial bench

te

and bar that in such cases, where there is exercisable discretion

in sencencing, evidence should be admitced in nmirigation and

aggravation--solely going to the determination of punishmenc

“The first paragraph of said instruction

informs the jury that in the event they find

the defendant guilty of ourder of the first

degree they may then determine whether the

penalty to be imposed shall be death or con-

finemenct in the state penitentiary for life

Such instruction is in conformity with I.C

§ 18-4004 Said instruction then calls atten-

tion to the evidence which was adduced during

the trial regarding the background and history

of the defendant and his experiences and

behavior in matters noc related to the alleged

‘

rime for which he was beinr tried

“In this connection evidence was intro-

duced by and on behalf of appellant showing

appellant's place and date of birth; thac his

father died when he was between five and

seven years old; that he was mistreated when

a boy ac home; thac in 1929 he was found guilty

of first degree robbery and as punishment

therefo: served three years and seven months

in San Quentin prison; during the years that

followed he worked at four or five differenc

trades or occupations; that he suffered a

serious accidental injury while working in

the mines; that he had been convicted of

reckless driving and drunken driving during

the past two years and that he had a hic and

run charge pending at the time of chis trial;

thac his son became involved in trouble and

was committed in the Industrial Training

School at St. Anthony, Idaho; chat after the

son returned to the home aopellant and his

son got into a fight, shortly after which

his wife, Betty Clokey, obtained a divorce

-62-

4

-

ey

amended after Furman. The penalty now became either death or life

imprisonment, and the jury continued to make that decision Had

it so read in 1864, with discretion in the jury, Simeon Walters

would not have been executed In 1910, Fred Gruber, too, was

executed, the last person whose fate was decided by a jury which

had no discretion where it did render a verdict of murder in the

irst degree. The jury's verdict in Gruber's case

“We, the jury, duly empaneled and sworn to

try the above encitled cause, for our verdicr

ge say

e “That we find the defendant, Fred Gruber,

guilcy of the crime of murder of che first

degree as charged in the information.

T. J. McAndrew, Foreman."

udgment of the Court

“that the said defendant, Fred Gruber. be taken

hence to the County Jail of the Country of

Kootenai, State of Idaho, and from there forth-

with conveyed and taken to the Scare Penitentiary

of the State of Idaho, in the County of Ada,

State of Idaho, and that on the 20th day of

May, A. D. 1910, between che hours of eight

o*clock in the forenoon and two o'clock in the

afternoon of said day, within the walls of the

said State Penitentiary of the State of Idaho.

the said defendant, Fred Gruber shall by the

warden of the State Penitentiary of the Stare

of Idaho, be hanged by the neck until he, the

said Fred Gruber shall be dead, and may che

Lord have mercy on your soul.”

The Gruber execution may have been unpopular At any

race, che next legislature amended the statute to provide that che

jury could decide between punishment by death or by life impri-

ecnment.” The statute remained unchanged until after Furman, and

ic is helpful to note the manner in which the jury continued to

administer its sentencing function as part and parcel of the

defendant's right to such determination.

Vicente Ramirez appears to be the first defendant

convicted of first degree murder after the jury was given the

Tt The statute as amended in 1911 is sec forth in the opinion

*

of Justice Huncley.

-49-

4

alternative between a life sentence or death In his case, in

their own language the jurors fixed his penalty at execution

State v. Ramirez, 33 Idaho 803, 199 F 1376 1921) .° The jury did

mot co so with his co-defendant whom they also convicted of first

degree murder.

State v. Hoagland, reviewed in the majority's survey,

was tried in early 1923. The jury's verdice

“we, the jury, duly sworn and empanelled

in the above entitled cause. find the defendant

@ David L. Hoagland guilty of murder in the first

degree, as charged in the information, and fix

the penalty at death

J. W. Potctenger, Foreman '

In accordance therewith he was executed

Other first degree murder verdicts after 1911 in cases

cited in the majority's review are, in inverse order. but in

chronclogical order forward

“We, the jury, duly impanelled and sworn to trv

the above encicled cause, for our verdict say

that we find the defendant guilty of the crime

of murder in the first degree, as charged in

the information on file herein, and fix his

punishment as imprisonment in the State prison

for life.

}. A. Stoner, Foreman.”

State v. Redding, 52 Idaho 260. 13 P.2d 253

(1932).

“We, the jury, empanelled in the above enticled

cause, find the defendant, Douglas Van Vlack.,

guilcy of murder in the first degree, as charged

in the information, and fix his punishmenc art

death.

W. S. McGowen, Foreman.”

Stace v. Van Vilack, 57 Idaho 316, 65 P.2d 736

(1936).

“We, the Jury in the above entitled cause,

find the defendant, Ralph Golden, guilty of

murder of the first degree, and we decide that

the punishment to be inflicted shall be impri-

sonment in the state prison for life.

2 This Is not the same opinion as that cited in the majoricy's

survey, State v. Ramirez, 34 Idaho 623, 203 P. 279 (1921).

ae fy a

7 Fay H. Rose, Foreman.”

State v. Golden, 67 Idaho 497, 186 P.2d 485

(194?)

“We, the jury in the above encitled cause,

find the defendanc William Lawrence wen guilty

of murder of the firse degree We decide chat

the punishment tq be inflicted shall be death

D. L. BUSH, Foreman

v. Gwen, 73 Idaho 394, 253 P.2d 394

"We, the jury in above entitled action,

* find the defendant Rob Clokey GUILTY OF

MUBDER OF THE FRIST DECREE, as charged in the

Information, and recommend as punishment

therefor the DEATH PENALTY

Chet Moulton, Foreman

State v. Clokey, 83 Idaho 322, 364 P 2d 159

- THE JURY, duly impaneled in the above-

entitled action, find the defendant Gui! f

Murder of the Firsct Degree, and fix the punish

ment as imprisonment in the Scacte Prison ¢

JAMES F. CAREY, Foreman

State v. Gonzales, 92 Idaho 152, 438 P.2d 897

"We, the Jury in the above entitled case,

find the defendant guilty of Murder in the

First Degree as charged in the Information

“We further find chat the defendant shall

be punished by imprisonmenc in the Idaho Srate

Penitentiary for life

James W. Buckley”

State v. Foley, 95 Idaho 222, 506 P.2d 119

(1973)

State v. Foley, involving a pre-Furman crime, appears to

have been the last murder case where the jury had the discretion

to decide between life imprisonment or death. Furman then intcer-

vened, following which che legislature returned to the law »-

was prior to 19ll--a mandatory death penalty upon e~-

first degree murder. As pointed ouc in the majc

death sentences were imposed, but were sect aside

“ile

of Woodson v. North Carolina, 428 U.S. 280 (1976) The legisla-

cure responded by returning to the law as ic was following the

1911 amendment The penalty was set at either death, or, impri-

sonme for life I.C. § 18-4004 as amended by Ch. 154, § 3,

Sess. Laws 197? The legislature, however, was unmindful of che

nstitutional right to a jury determination and passed the Act

as presented to it by the attorney general

Since the passage of the 197? Act the Court has received

eight @ppeals from imposed death sentences The case now before

—_

us is the second The first was State v. Osbor: 102 Idaho 405,

631 P.2d 18 (1981), wherein Osborn's judge-imposed sentence, as

ser the 197? Act, was reversed and the cause remanded for resen-

cencing in accordance with che views expressed in the Court's

i n--an opinion which I did not join The district court, the

| rable Arthur P. Oliver. flatly refused to again consider the

imposici of a death penalty, for reasons which I shall shorcly

lay 3t and discuss The attorney general acquiesced in the

district irt's refusal by not challenging ic, and in chac firse

application of the 19727 Death Penalty Act, precedenc has been set

wht strongly suggests the desirabilicy >f che pre-Furman

statute which placed the ceath or lite determination upon the

shoulders of twelve jurors

Osborn. after initially pleading not guilty, moved the

trial court to withdraw that plea, and enter a plea of guilty to

J Ar Oral argument In this case we were advised by the Honor-

able Lynn Thomas, Solicitor General for the State of Idaho, that

the 1977 Act was attributable to his personal efforts. Justice

Huntley has pointed out in his opinion chac the statemenc of

purpose clearly, but erroneously, misled the legislature into the

belief that enactment of che biti as presented was mandated by the

United States Supreme Court I very much doubt that there was any

intentional thought directed toward omiccing the jury function.

In other cases the solicitor general has been adamant chac, uncil

a 1982 constitutional amendment, the right of jury trial in felony

cases was mandatory and could not be waived by a defendant, with

or without the State’s consent. State v. Hightower, 101 Idaho

749, 620 P.2d 783 (1980); State v. Davis, Idaho

P.2d S.Ct. No. 13239 released March 30, 1983.

-$2-

APPENDIX AS2

Ais attorney did not at any time. either in

firsc degree surder

the trial court or on the appeal, express any thought thac Osborn

was constitutionally enticled to a jury determination as to his

guile, and, if guilcy, then as to his fate Hence there was no

consideration of that issue in the Osborn opinions The right to

jury involvement at sentencing has been raised for the firsc time

mn this case. and even as 1 pen my views. counsel for Mr. Creech

has filed in this Court a motion for an order vacating the sen-

tence and judgment herein, and at the same Cime moving this Court

nd

to allew hjm to withdraw his guilty plea

Concluding my views on the constitutionalicy of che

present statutory scheme under which Mr. Creech was sentenced to

Jeath without proper regard for the Idaho Constituticn which

Jeclares in Article I, Declaration of Rights, that “The right to

rial by jury shall remain inviolate, “ § 7? (the major porcion

which deals with criminal actions) I pause to say that I, as

one person, and most likely Mr Creech and his counsel as others

incerested, would be grateful i the extreme were the majority to,

in their opinion, explain the error they find in Justice Huntley's

t i tha

‘The provisions of the const

to the right to trial by jur

apply as it existed act the d

»f the constitution

ction pertaining

re construec to

a

te of the adoption

— — — —_—_— — + -—-—.

Justice Huntley did not create and then advocate the

roposicion, but rather simply strated it as a well-entrenched

principle in our Idaho jurisprudence To my understanding it is a

general rule recognized in all jurisdiccions

If that were not enough persuasion cto at least evoke a

response from the majority, there is also the teaching of State v.

Miles. 43 Idaho 46, 248 P. 442 (1926) where a unanimous Court, 4

4 Prior to receipt of this motion I have already written one

portion of this dissent wherein the procedure whereby Mr. Creech

was allowed to enter a guilty plea against the advice of counsel

comes under discussion. To that I will presencly turn.

-$3-

bare 36 years after statehood stated

“The rule is well established chat the guarancy

of right of terial by jury secures that right as

it existed under the common law and territorial

statutes in force at the date of the adoption

of our Constitution.”

43 Idaho at 49, 248 P. at 442 (citations

motted). :

The proposition involved had been earlier examined in an

opinion by Justie Ailshie, regarded by many as Idaho's foremost

Justice, in a case wherein it was contended by the attorney

genera@® chat che Board of Pardons, as established in the 1899

Constitution, could “impose any condicions whatever upon the

granting of @ parole.” Art. 4, § 7? (since amended). In passing

on the question presented, the Court observed the delineations of

governmental power,

“There can be no doubt but that, under the

Constitution and statute as above cited, the

board of pardons may, upon the granting of a

pardon, commmutacion or parole, attach such

conditions as they see fit, so long as they are

not immoral, illegal or impossible of per-

formance, provided they are to be kepc and

* performed or complied with during che term for

which the prisoner was sentenced by the judz-

ment of the court. Under our Constiturion irc

is the duty and prerogative of the legislative

department to define crimes and fix the maximun

and minimum penalrty that may be Ag+ ys for the

commission thereof. It is the du of the

judicial department co try offenders against

those laws, and, upon conviction, to sentence

them under the statute. Under the laws o

sere State, there is no such thing as an indefi-

nite or Indeterminate s Seatiace be as is prov

For in many of the states from which author-

ities have been cited by the Attorney Ceneral.

In chis state the sencence and jevegey of che

court must be specific, certain, and definite.

The board oF paeione belongs to the executive

\ department of che state, and its privilege and

prerogative is that of grancing clemency. It

is a board of clemency, rather chan a punitive

body. Instead of pronouncing judgmenc and

sentence, and imposing punishmenc, its preroga-

tive and authority is thac of forgivin offenses

and remiccing penalties, wiping out judgmencs

and sentences of conviction either in whole or

in parc.” (Emphasis added.)

In re Prout, 12 Idaho 494, 498-99, 86 P. 275,

276 (1906).

there was yet another case,

(1911),

In the interim between Prout (1906) and

In re Dawson, 20 Idaho

wherein our predecessors on this Court aga

Miles (1926),

160, 117 P. 696

in paused to

dwell upon our criminal justice system and the function of a jury

under the Idaho Cons:itution It was not a capital case, but ~@

* lar nv . hich

felony charge of larceny, to which the defendant pleaded guilty

five days after he was charged, whereupon he was sentenced to the

penitenctisry--wherefrom by habeas corpus petition he sought his

releasg on two grounds, one of which was that the right to jury

trial provigion found in the Idaho Constitution precluded the

courct’@® jurisdiction to commit hia

to the penitentiary on a guilty

plea. In passing upon that contention, the Court made these

observations

“The language used in

of the Constitution was no doubt intended

preserve to the citizens of the state the righre

s 7 = rw 4 . .

of triai by Ty as it existed under the common

, nae: Re -. ta sasha te AT” ee

law, anc such right is retained in all cases

which were triable by jury at common law

» fant : .

i\Wijherever a right ¢ this trial is guaranteed

by the Constitution witho qualification or

restriction, it must be understood as retained

in all those cases which are triable by jury a

Com law, and with all the common-law inci

dents a jury trial so Far at Teast as they

can be regarded as tending to the protection of

——— rw - - Snes: Sf Ss BEVesce 2

che ac sec

7 a> > a, ¢ . 7 . . -

Id. ac 182, ll P. at 697 (quoting Cooley

Constitutional Limitations, 7th ed., p. 453

(emphasis added)

The Court in Dawson further elaborated chat

“[T)he right of every one to have his cause

tried or to be tried himself if accused of

crime by a jury is guaranteed and established

beyond the power of che Legislature to abridge

ic. .. . ‘The trial by jury, secured to che

subjecc by che Constitution, is a trial accord-

ing to the course of the common law, and che

same, in substance, as that which was in use

when the Cconstitution was formed.*”

Id. ac 184, 117 P. at 698 (quoting East Kingston

v. Towle, 48 N.H. 64) (emphasis added).

Ic is clear, then, that the right co trial by jury must

be examined in light of the practices at common law and the

a ne a _

i Eee eS ie ——_—-—

<>

place his life in the hands of a jury who would decide his fate

if he went to trial on the issue of guilt or innocence, which

was upon the advice of counsel that only a jury could sentence

him to death under Idaho law, he pleaded guilty and was by the

judge sentenced to death four days later. The facts and circum-

stances, succinctly laid out in the dissenting opinion of Justice

William A. Lee, are:

“The affidavit of appellant, which is not con-

troverted as to the principal facts, states that

following his arrest and prior to his arraign-

ment and plea he was taken by the sheriff from

the jail where he was being held awaicing trial,

into the country and was seized by a mob, blind-

folded and hanged, after which he was let down

and required by the mob to give information

about the commission of the alleged crime and

the whereabouts of his alleged accomplice, in

the nature of a confession of guilt; that when

he was brought before the trial court and stated

that he was without means with which to employ

counsel to represent him the court appointed

counsel to do so, and such counsel advised him

that public sentimenc in the community was so

high against him that if he entered a plea of

noc og and stood trial he would more than

likely be given the death penalty, but that if

he entered a plea of guilty the judge would not

have authority to impose the death penalty upon

him;* and that when he entered a plea of guilty

the judge did ask him if he realized chat the

death sentence might be pronounced against him

on such plea and that he was so frightened he

did not answer but relied upon the advice of

counsel which the state had furnished him, and

believed that the confession which the mob had

extorted from him could be used if he stood

trial, and so allowed the plea of guilty to

stand, but that had he believed the judge had

authority to sentence him to death upon his plea

of guilty he would not have entered such plea.

The plea of

of September, 1923, and the judgment of the

court that appellant should suffer the death

penalty was entered on the 15th of September

thereafter. Upon securing additional counsel

appellant, on October 8, 1923, moved that the

j t be vacated and that he be permitted to

withdraw his plea of guilty and enter a plea of

not lty, which motion was denied.” State v.

Arnold, 39 Idaho 604, 605 (1924), Lee, Justice,

dissenting.”

State v. Arnold, 39 Idaho at 604-05, 229 P.

at 753.

~—s was entered on the llth

statutes of Idaho when our constituticn was adopted and approved

by the citizens of Idaho. In territorial Idaho and in statehood

until 1911, as at cogmon law, the uniform practice was to make

death the exclusive and mandatory sentence for certain specified

offenses. Woodson v. North Carolina, 96 S.Cc. 2978, 2983 (1976)

(citing H. Bedau, The Death Penalty in America, 5-6, 15, 27-28

(rev. ed. 1967)). A jury in the Territory of Idaho by convicting

a person of first degree murder therefore also determined the

punishalenc to be imposed--death The judge's role was merely to

all

pronounce the judgment, a matter in which he had no discretion.

Such was the statutory law since 1864, and even with some non-

capital cases, the legislature placed “a duty upon the court

to impose the punishment presscribed."” R. S. 1977, § 6306--

now I1.C. § 18-106. (See In re Erickson, 44 Idaho 713, 260 P.

160 (1927).) Idaho followed the common-law practice of giving the

tury the role of sentencer in capital cases--the jury being

statutorily given che exclusive power to determine when the death

penalty would be imposed. As has been seen, Section 17 of che

Idaho Criminal Practice Act of 1864, sec forth in Justice Huntley's

dissent, provided chat

“{T)he jury before whom any person indicted for

murder shall be cried, shall, if a find such

person guilty thereof, designate by their

verdict, whether it be murder of the first or

second de ree; . Every person convicted of

murder of the first degree, shall suffer death;

and every person convicted of murder in the

second degree, shall suffer imprisonmenc in the

territorial prison for a term noc less than ten

years, and which may be extended to life.”

(Emphasis added.)

In 1887, a mere three years before the Idaho Conscitu-

tion was adopted and approved, the Idaho Revised Sracutes provided

that

; "Sec. 6563. Every > guilcy of murder

n the first degree shall suffer death, and

every person a * of murder in the second

degree is punishable by imprisonment in the

Terricorial prison not less than ten years, and

the imprisonment may extend to life.”

/

Idaho Revised Statutes, Title VII, ch. 1,

§ 6563 (emphasis added)

At that same time the trial jury's function was set out thus

"Sec. 3938. A crial jury .. . is a body

of men . . . sworn to try and determine by a

uflanimous verdict a question of Fact.”

Idaho Revised Statutes, Title VII, ch. l,

§ 3933. (Emphasis added.)

It was a question of fact whether a person was guilty of murder in

the first or the second degree. This determination could only be

made byga jury and ic could only be made by a unanimous jury.

Since the ct@™e che Territory was created, it took a unanimous vote

of cwelve jurors to determine chat a person was to die.

The 1887 Revised Statutes of the Territory specifically

distinguished between those cases in which the judge could exer-

cise his discretion in meting out punishment and those in which

the punishment was determined by che jury as a resulc of its

5

verdict of guilty for a specified crime See R. S. 1877, §§

6306, 6307 (mow I.C. §§ 18-106, 18-107. R. S. 6307 was amplified

by R. S. 7992.)

"Sec. 7992 Afcer a plea or verdict of

guilcy, where a discretion is conferred upon

the court, as to the extenc of the punishmenc,

the court, upon the oral suggestion of either

party chac chere are circumstances which may be

properly taken into view either in aggravation

or mitigation of che punishmenc. may, in its

discretion, hear the same summarily, at a

specified cime, and upon such notice to the

adverse party as it may direct.” (Emphasis

added.)

Now 1.C. § 19-2515 (amended in 1977.)

The common-law practice of England, and the practice

codified in 1864 and 1887, of requiring jurors to determine

whether a sufficient crime was committed to warrant the imposition

of the death penalty, was preserved by the Idaho Constcicution,

5 To my reading of the 1887 Penal Code, capital offenses were

the only offenses in which che sentencing discretion rested not

with the court but with the jury.

-57-

A —

art. 1 § 7? and also by art. 21, § 2, as readily confirmed by

reading the Proceedings of the Idaho Constitutional. Convencion.

The Proceedings of the Constitutional Convencion revelv-

ing around art. 1 § 7? shed further insight as to the intent of the

framers, leaving no doubt as to the verity of the above statements

of the Court in Miles, Prout, and Dawson It was proposed by Mr.

Claggectt that a verdict could be rendered by a majority of 5/6 of

the jurors “in all criminal actions except where the death penalty

is impesed by law." Idaho Conscitutional Convention Proceedings

and Debates. p. 151. The framers rejected his proposal and

ultimately adopted the provision now in force which allows for

less than unanimous verdicts only in non-felony cases.

In reviewing their recorded considerations of chat

issue, we are fortunate today to have irrefutable evidence chat

those public leaders, of whom nearly one-half were practicing

lawyers (Vol. I, Idaho Constitutional Convencion, p. 160), were

acutely aware that § 7? of Article I would guarantee forever that

the legislature could not impinge upon the right of an accused to

have a jury of his fellow men make the death penalty decision.

Mr. Heyburn said it with an eloquence befitting a Thomas Jefferson

y

or a James Madison

“Mr. Chairman, I cannot agree wich the gencle-

man in regard to the wisdom of changing en-

tirely che system that is as old as government

—— that no man ehall be de rived of aa

ts, of his liberty or exce)

= us verdict of a Tiros “His ‘fe cee 8

citizens who have no eRe tthe, thee “than to see

chat justice Is done him. This principle has —

Seen deemed so _ Ttant that at one cime the

demand that man uld be protected b ~ a of

trial by jury soviatieniand the civitiz

world. .. . It is the strong arm of the law

that stands between che weak and the strong,

between rich and poor, between oppressed and

oppressor. .. . [I]t is still not necessary

for us to say that less than a unanimous ver-

dict shall deprive any man of either his

liberty or his personal rights. We cannot

afford in the interest of economy nor in the

Interest of speedy justice--or of speedy

trial, more properly speaking--to lessen by one

SI cin pion

* st

ST eee a rensenable | doube apiess ey do

not 7 to him, and that chat Seateser

F soues is, ts "to be determi ned by « unanimous

verd: ct.” ;

Id. at 152-53 (emphasis added).

Although Mr. Claggett, the sponsor of che proposed 5/6

majoricy rule proposal contended that che requirement of unanimous

verdicts in criminal cases paralyzed the law enforcement power of

the state, even he recognized that capital cases are unique:

al “MR. CLAGCETT . . We all know the

defendant has every benefit from reasonable

dowbt. We all know he has a double advantage

in impaneling the jury We all know that when

there has once been a verdict of acquittal he

cannot be called in question again, no matter

how wrong the verdict may be. And we all know

in addition that the court has power to suspend

judgment on the verdict after conviction, ir

order that application may be made to the

governor for pardon in any case which may arise

now and then, where the conviction is wrong, or

where, if not wrong, the punishmenc is too

severe, so that there is ample opportuniry

given before the execution of the judgmenr of

the court for a review of the case by the

governor or board of pardons Now I ask

whether all these things taken together, one

and all, do not constitute too much advantage

on the part of the defendant, and whether the

strong arm of che state, which is stretched out

and whose function is to protect the people, is

not paralyzed by this system of a unanimous

verdict.

“Mr. BATTEN. I will ask you, why make an

exception in capital cases?

“Mr. CLAGGETT. Ouce of mere tenderness to

human life, and because if the death penalty is

once inflicted oy can never rectity the error,

but on the quest of imprisonment you have

the entire term of. his imprisonment to correct

is.”

Id. at 251 (emphasis added).

“Mr. AINSLIE. .. 1 say it is legitimate

in civil proceedings that a jury of chree-

fourths should find averdicc. I believe ic

will facilitate litigation and dispatch many

suits a great deal quicker than by having a

unanimous verdice. But when we come to the

-59-

life and liberty of the citizen, whether ic

weans imprisonment in che county jail or ninety

and nine years in the penicentiary, I say we

should pause and be governed to a large extent

by the experience of those who have gone before

. «4% 2 oe = will find chac they have

never yet undertaken to advocate the doctrine

that five-sixths of a jury should find a ver-

dict in a criminal case. Therefore I oppose

the motion made by the gentleman from Shoshone,

and I hope this body will not adope ic.”

Id. ac 258.

*

Clearly the right, indeed the safeguard, to have a jury

of fellow citizens make the decision of death was foremost in the

minds uf che framers when they assembled in che year 1899 and

<

drafted the Constitucion of Idaho which was accepted by the people

and the Union.

From 1864 until 1977 imposition of the death penalry in

Idaho has not been a function of trial judges. During that period

of cime the legislature sec the penalty and the judge merely

pronounced judgment accordingly. If the jury returned a verdict

of guilcy of firse degree murder, the judge was under a duty to

pronounce a judgment thac the defendant suffer the death penalry.

This is exemplified nicely in People v. Walters, supra, where the

Territorial judgment on the verdict of guilty of first degree

murder stated “The Judgmenc of this courc and che sentence of the

law is Nor was there any room for discretion in the

court. Although the Revised Statutes of 1877 § 639 provided for

an aggravation-mitigation hearing. it had no applicabilit where

the verdic in a first degree murder case was guilty of firsrc

degree murder. Obviously that procedure would not have withstood

scrutiny under decisions of the United States Supreme Court which

were handed down in 1972 and 1977.

A forerunner in many areas of criminal law, in 1911 che

legislature did give the jury some leeway in capital sentencing,

and from that time on until the legislature acted again in 1972,

the jury, as a component part of the court (see State v. Ramirez,

¢

w 7 -

re 34 Idaho 623, 203 P.2d 279 (1921),

“che jury, in a case triable by a jury, is as

much a pare of che court as the judge. Each

has certain legal duties and functions, and the

combined action of the jury and the judge makes

up and merges in the final judgment. The

action of the jury in imoosing the death

judgment

penalty merged In the and became a

parc of the decision cf the courc.” (Emphasis

added.)

34 Idaho at 634, 203 P. ac 283.

became vesced with the same discretion that judges had in non-

capital cases where the legislature had not set a mandatory

penalty, So, and as has been now well pointed out, from and afcrer

1911 che jumy, upon convicting a defendant of first degree curder

would decide between imoosing a sentence of death or a sentence

of life imprisonment. Done away with, at that early time, then,

was the mandatory death sentence which would over fifcy years

later in the seventh decade of the twentieth century be held

offensive as violative of che Constitution of the United States.

Becoming then applicable were ($074 nrowteinne erected

in 1877 and now codified as I.C. § 19-2515(a), which, prior to

1977? read exactly as it had read for 110 years, and provided for @

the presentation of evidence on circumstances both mitigation or

aggravation of the punishment. is this manner che Idaho procedure

governing the death penalty had all of the requisite features

which the Supreme Court of the United States would later require--

ocher than, perhaps guidelines

But even there, although the jegislature did nothing

toward providing criceria for the jurics to consider in deciding

between life sentences and death sentences, the courts of Idaho

were not reniss.

Time constraints in meeting the rules of this Court for

issuing opinions--with death penalty cases in no way distinguished

from run-of-the-mill monecary judgments in small claims court--

prevent an exhaustive review, but suffice it to say that my personal

-61-

. APPENDIX A61

2

“Such evidence is unrelated to the crime

here charged and it is such evidence of bio-

gtaphical facts that the court refers co in

said instruction No. 16. at is evidence re-

arding the background an istory, the experi-

ona ad behavior of appellant wich the ai

may consider only as ic may assist chem in

arriving at the punishment in the evenc the

ury finds defendant guilty of murder of the

irsc degree.

"Ome of che reasons for permitting the

introduction of evidence of biographical facts

where such facts are unrelated to the offense

charged is that che law recognizes chart pre-

vious good or bad conduct should be considered

in fixing punishment for crime. Our statute

provides the court with discretionary power co

consider circumstances in aggravation or miri-

gation of punishment as follows

“*afcer a plea or verdice of guilicy,

where a discretion is conferred upon the

court as to the extent of the punishmenrc,

the court, upon che oral suggestion of

either party thac there are circumstances

which may be properly taken into view

eicher in aggravation or mitigation of

the punishment, mav, in ics discretion,

hear the same summarily, at a specified.

time, and upon such notice to the adverse

party as it may direcr.* ‘1.C. § 19-2515.

"1.C. § 19-2516 requires that che hearing

be had in open court

“This Courc has considered the language

used in I1.C. § 19-2515 and has stated chat

“"Ie may be open to debate as to

whether che “circumstances” mentioned

in § 19-2515, 1.C., refer particularly

to circumstances surrounding the cormmris-

sion of the crime and tending to aggra-

vate or mitigate the character of the

conduct involved, or whether such cir-

cumstances include also the convicc,

himself, as an ingividual, which would

include his background, his age, upbring-

ing and environment or any other macter

appropriate to a determination of the

degree of culpability. We think thac

the statute should be given the broader

interpretation, particularly in a capical

case. James v. State, 53 Ariz. 42, 84

P.2d 1081.° State v. Owen, 73 Idaho 394,

253 P.2d 203, 207.

“This Court has also determined chat in

cases where the jury may fix the punishment

ic should have opportunity, under proper in-

structions, to consider circumstances in

aggravation or mitigation of the punishment.

In State v. Owens, supra, this Court said:

"*Ic. therefore, appears that che

law contemplates that in fixing the penalty,

the court, when requested by either party,

may and should hear and consider circun-

stances in aggravation or mitigation of

the punishment. Ic logically follows thar

if ic is proper for the courte co hear and

consider such evidence, the jury where ic

is called upon to fix the punishmenc,

should have the opportunity to consider

such proof, subject, of course, to a

proper instruction limicing the jury's

consideration of such evidence to the

determination of punishment, and caution-

ing that ic is not co be considered in

determining guilt: or innocence, or be

allowed to influence the determination

of thac question

State v. Clokey, 83 Idaho at 327-28, 364

P.2d at 162-63

In Scate v. Owen, supra, quoted in the above excerpt

supers

Slokey, the trial court sustained the State's objection to

efendant's evidence offered “to show facts and circumstances

fefendant's age, upbringing and environment for the pnurpose

igating punishmenc.” 73 Idaho at 401, 253 P.2d ac 207.

of the trial court was held to be error, but on a

tision of this Court, a mew «trial was not ordered;

stead, by a three-two split of che Court, which held that

P id been a fair trial on the issue of guilt, the death

sentences of the jury were commitred to life imprison-

73 Idaho act 420-21, 253 P.2d at 219-20 The Owen

rt's opinion should have made it clear to the trial bench and

r

bar that charges of first degree murder would encompass, at the

time, a trial of the guilt issue and a trial of the punish-

issue

“However, the law does recognize chat

previous good or bad conduct should be con-

sidered in fixing the punishment for crime.

Such is the underlying principle of the per-

sistent violator statute. § 19-2514, I.C.

The courts have long recognized that the first

offender should be accorded more lenient

treatment than the habitual criminal. In

addition to considerations of humanity,

justice and mercy, the object is to encourage

in

and foster the rehabilicacion of one who

has for the first time fallen into error, and

whose character for crime has not become fixed.

State v. O'Dell, 71 Idaho 64, 225 P.2d 1020.

“Our statute also provides che court with

discretionary power to consider circumstances

in aggravation or mitigation of punishment, as

follows:

“*afcer a plea or verdict of guilty,

where a discretion is conferred upon the

court as to che extent of the punishmenc,

the court, upon che oral suggestion of

eicher party thac there are circumscances

which may be properly taken into view

either in aggravation or micigaction of the

punishment, may, in its discretion, hear

the same summarily, act a specified cime,

and upon such notice to the adverse party

as ic may direce." § 19-2515, I.C.

“And § 19-2516, I.C., requires chat che

hearing be had in open court. Ic may be open

to debate as to whether the ‘circumstances’

mentioned in § 19-2515, I.C., refer parcticu-

larly to circumstances surrounding che comis-

sion of the crime and tending to aggravate or

mitigate the character of che conduct involved,

or whether such circumstances include also the

convicc, himself, as an individual, which would

include his background, his age, upbringing and

environment or any other matter appropriate to

a determination of the degree of culpability

We think that che statute should be given the

broader interpretation, particularly ina

capical case. James v. State, 53 Ariz. 42, 84

P.2d 1081.

“Ic, therefore, appears that the law

contemplates chat in fixing the penalty, the

court, when senesees by either party, may and

should hear and consider circumstances in

aggravation or mitigation of the punishmenc.

Ic logically follows that if ic is proper for

the court to hear and consider such evidence,

the jury where ic is called upon to fix the

punishment, should have the opportunity to

consider such proof, subject, of course, to a

proper instruction limiting the jury's con-

sideration of such evidenve to the determina-

tion of punishment, and cautioning that it is

not to be considered in determining guilt or

innocence, or be allowed to influence the

determination of that question. The offer of

proof in behalf of the defendant Owen is as

follows:

“*'Mr. Doane: Comes now the defendant

William Lawrence Owen and offers to prove

by the present witness that the defendanc

William Lawrence Owen was born in Tannover,

California, on October 2, 1911, in a

family consisting of his mother and

father, one sister and one twin brother;

that his father's occupation was chat of

a railroad foreman; that his nationality

was Welsh and half-breed American Indian;

thac his mother was a full-blooded

Americas Indian of the Wylacki tribe in

northern California, that in the year

1917 when the defendant was of the age

of six years his mother died. that the

defendant had no real home life in the

ordinary meaning of the term, and lived

from time to time with his siter and other

relatives; chat he completed his formal

schooling at the age of fourteen and

thereupon proceeded cto provide for hin-

self, and his first major occupation was

thac of deck boy on a sailing vessel,

upon which vessel he served * two and

a half co three years; chat since chat

experience at sea the defendant learned

foundary moulding as his trade and has

followed chat trade ever since chat time,

and just prior to his coming to the

State of Idaho, approximately cwo weeks

before the date of September 7. 1951,

was so engaged in his occupation.’

“The offer made by defendant Hastings con-

sists of a lengthy recital of his milicary ser-

vice in the United States Army commencing

wich his voluntary enlistment on July 9, 1940,

and ending with his discharge in July, 1945.

It contains a detailed statement of the differ-

ent periods and places of service, engagements

in which he or his unit parcicipatced, cime,

place and manner of wounds suffered and of

decorations conferred, and also as to decora-

tions and citations conferred upnon the regiment,

battalion and division in which he served.

Except for his military record, he offered no

evidence as to age, upbringing, and environmenc,

which was not admitted. Such a detailed

statement of milicary exploits, engagements,

wounds and medals, would have a natural ten-

dency to prejudice the jury in the defendant's

favor, and the nature of the offer here would

suggest that that was perhaps its purpose.

However, we think a briefer statement of

milicary service would be a proper part of

a background sketch.

“Ic is the general practice, at least

in important criminal trials, to permit any

witness to cestify briefly and nonge ag as

to his ap gree a ey such facts as date

and place of birth, fami relationship and

occupation, to better poses the jury cto

appraise the general character of the witness.

Each of the defendants was a witness in his

own behalf and should have been permitted to

testify to such general biographical facts

in his capacity as a witness, if for no other

purpose. Owen was permicted to cesctify only to

the date and place of his birch. Hastings was

permitted to testify co che date of his birth.

thac in 1932 when he was ten years of age his

father died, and that his mother had remarried.

The court should have admitted the evidence

offered by Owen and anything of a like character

which Hascings may have desired to introduce

70 C.J., Witnesses, § 919.

“However, since the offers were expressly

limited to mitigation of punishment. and since

the question of guilt is free from doubc. and

since the error can be expunged by a corsuta-

tion of the sentence, we hold that it does not

require reversal of the judgmenc.”

State v. Owen, 73 Idaho at 402-04, 253 P.2d ac

207-909.

Ic is, then, abundantly clear that for at least thircy

years, as documented by Stace v. Owen, Supra, chere was a sen-

tencing scheme in Idaho chat very nearly comporcted with che

requirements the United States Supreme Court would in the 1970's

requ;re as mandated by the Uniced States Constitution. The death

penalty was not mandatory, but left wich the jury, upon hearing

evidence in witigation or aggravation. the discretionary choice

between inflicting che death penalty or life imprisonment. An

element probably lacking was the requirement of a specific

instruction to the juries of Idaho defining aggravating circum-

Stances, the existence of one or more of which would juscify and

dictate the imposition of the death penalty and che requirement

chat the jury sec out in writing the requisite ageravacing factor(s)

proven beyond a reasonable doubt--in which respect, other than

for a bifurcation of crials with the second stage to follow and

hinge upon there being in the first stage a conviction of first

cegree murder, the Idaho procedure was much like that in Missouri,

as outlined in Bullington v. Missouri, 451 U.S. 430 (1981).

When, in 1973, the legislature (apparently acting at

the behesc of Idaho's attorney general, as was for certain the

situation in 1977) returned to the mandatory death sentence,

although che jury was indeed the sentencer even as it was prior

o$7J-

co che 1911 amendment which allowed for the exercise of discre-

cion, a step was taken in the wrong direction insofar as was

concerned the mandate of the Supreme Court of the Uniced Scaces.

Then, when che legislature passed the sweeping provisions of the

1977 Act, although it came close to meeting the requirements of

Woodson, it misperceivec Woodson's content to the extent that

it believed icself behooved to abolish che jury funccion (as

evidenced by the Statement of Purpose set our in the opinion of

Justice Huntley) which is mandaced by our Idaho Conscicution,

guaranteeing chat the right to trial shall remain inviolace.

Had che majority of the Court engaged in any meaningful

review of the history of death sentencing in Idaho, “at other |

times," while it would be hard pressed co affirmacively show chac

until Furftan the jury in Idaho was noc in facet che sentencer in

nearly all capical cases, ic could point co Stace v. Arnold, 39

Idaho 589, 229 P. 748 (1924), as authoricy for a judge to sub-

scitute himself as the court sentencer in place of the jury when a

defendant enters a plea of guilty to a charge of first degree

t Arnold had the misfortune to be che first person in Idaho

ever enter a plea of guilty to first degree murder, and,

lchough it doesn't appear in the Court's four-to-one opinion,

Arnold also had che misfortune to be a black man charged with

firse degree murder. Arnold's case recently came under study by a

class of approximately fifty law students, most of chem in their

third year, at the same time they were reviewing another sore

famous case of that era, namely Powell v. Alabama, 287 U.S. 45,

$3 S.Ce. 55, 77 L.Ed. 158 (1932) Every person in that class was

of the opinion that Arnold was not only wrongly decided, but a

tragedy in che history of Idaho jurisprudence--not on any thought

that Arnold wasn't guilcy, but on the misfeasance of the crininal

justice system. The main point of concern with Arnold is that,

being an indigent for whom counsel was appointed, and fearing to

-68-

ed — %. ae

The four member majority, not only upheld the trial

judge's ruling that he could impose the sentence upon a plea of

guilty to first degree murder, but also upheid the ruling below

that Arnold, whose plight had attracted the attention of illus-

6

trious counsel of experience (the appointed attorney who had

pleaded Arnold guilty had been admitted to the bar just a month or

‘so before--another travesty) was not entitled to withdraw his

guilty plea and enter a plea of not guilty. Regarding the latter

use the Court was content to assume that the lower court "In

denying the motion . . . evidently concluded that, upon the showing

made, it did not appear that the appellant had entered a plea of

guilty in ignorance of his rights, or because he had been misled

by erroneous advice of counsel.” 39 Idaho at 603, 229 P. at

752.

As to the authority of the judge to impose the death

sentence, concerning which issue there was no precedent in Idaho,

‘this appearing to be the first such case where an accused pleaded

guilty to murder in the first degree, 39 Idaho at 594, 229 P. at

749, the Court relied upon two propositions which were said to

uphold the validity of a judge-imposed death sentence:

(1) It being the duty of the court to pronounce judg-

ment, where there is a guilty plea to first degree

murder, “the court must do so." 39 Idaho at 597,

citing State v. Ramirez, 34 Idaho, supra, and State

v. Hoagland, 34 Idaho, supra, mentioning also two cases

from California.

(2) The requirement of § 9024, Compiled Statutes,

which provided that "Upon a plea of guilty of a crime

distinguished or divided into degrees, the court must

before passing sentence, determine the degree." 39

Idaho at 595, 229 P. at 750.

6 two of the attorneys who volunteered their services on

behalf of Noah Arnold would themselves later serve on the

Court which turned awry their contentions, namely the Honorable

E. B. Smith and the Honorable Will M. Morgan.

ae - v

The second ground was absolutely untenable. In two

places the Arnold majority recognized that Arnold had pleaded.

| guilty to murder in the first degree. So long as that plea was

allowed to stand, the degree of the crime had already been

determined.

The first ground is likewise on unsound footing. Fol-

lowing Arnold the Idaho cases are replete with expressions recog-

nizing that the jury must on a first degree murder conviction

imp

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