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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1706%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983

## Text

:
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 ... 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

af
{) ay
“a 4
wma il Ahr _ -
af "Om issior ? " r TAahe

an GB an

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
‘ ~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 ‘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 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?: seat is juscified
" erwise pena.t Must be .ess a ceat
7 ame 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
-
~

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
(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
’ | . , (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

«
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 — 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

»*

)

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., ® 48 ['S Littl 2A

p= , 4 , - oss
/é 4 fy ae fe , od? S 2 ele
/ bene 4 P
ae ae -
/ / :
Mh! - hMiak Sukd.
L fs
\ 4 yy) F ty é
a : /
pH AIT £7) 84, (Me hie
; £ tof / f_
“ 4 / ‘Ly tm“,

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

52" sunday, September 20; 1981
raed “A Part of Life in Idaho” .... -

“Execution for Creech

ted weaiie Wd tialt cdeiastnnedinaitiy en tithes ben v0 sis
them for ks own protection. Thomas Creech, who has

Eugene
been convicted of five murders, is one of those people. He should ..
be

sentenced to death for the most recent of his murders, the

May 13 slaying of fellow Idaho Penitentiary inmate David Jen-

sen. + - agi s tN be
Longtime readers of this editorial page will recognize that this
stance is a turnaround for The Statesman. The ‘of posi-

changes in

‘the beliefs of some members. (For an explanation of why the po-
sition was changed, see the Dear Reader column on the opposite

) *.
P Joc qunerel ghiicenghical position th Saver of the death pen-
alty ts based upon the belief that society must protect itself, and
that-ip an imperfect world there is no way to protect against
Sone people so dangerous and so irredeemabie except to end

lives. Creech is the example that proves the point.
Sanigm, Creech was sentenced to death for the 1974 murders of
twp-men near Donnelly. That sentence was reduced to two

rerras of life when the Idaho Supreme Court de .
clered the state's 1973 mandatory death penalty law unconstitu-
tional

~The court's decision was a good one, It followed a U.S. Su-
Court ruling that mandatory death penalties are arbi-

trary. and capricious because they do not allow judges to con-
mitigating factors in cases. The Idaho law was rewritten in
197-t9 include a list of factors to guide sentencing and meet the
Comstimtional op ape onan laid conn in the U.S. Supreme Court

oie, Creech pleaded guilty to ‘énother murder that took
in 1974, this one the shooting death of a Portland man.
Creech again escaped the death penalty. neers cage pew
ighinent law also had been de-lared unconstitutiona
~Dp Friday, a California state appeals court are Creech’s
murder conviction in 1980 for the 1974 slaying of a
Sacramento man. That crime, like the others, preceded a ruling
that the state death-penalty law in effect at the time was uncon-

- Then, last May, Creech beat Jensen to death with a sock full of
flashlight batteries while the two inmates were incarcerated to-

gether during an exercise period.
Jensen was no model citizen; at age 23 he had been in and out

~ By all accounts Jensen was a wayward but unviolent young
who never should have been locked up with someone like

Mf steps can be taken to end the possibility that mistakes will
result in harm to members of society, then those steps must be
taken. Obviously, there is at least one such step — to put to death

..To take the step involves a terrible responsibility . Capital pun-
Ehment must be used sparingly and with ever: alot tbs hear
tg the convicted murderer. Yet, if society is to protect itself ab-
solutety agamst the tikes of Thomas Creech. then such peuple

ey

Pa

_ APPENDIX A79

By ROD SANDEEN
‘editor
Support or oppose capital
ies an examination of one’s deepest
ictions. 0
it Was whi. The Statesman editoria!

oT

:

-
ba
~~
™
z
o
-
bad
ad
x
°

mote control while the condemned person
hes strapped to a stretcher.
The Stetesman

rs ~ Aatiew seyy bn payent Bape
mes

But three years later, as an editorial In to
day's paper says, The Statesman ts endors-
ing the death penalty.

The decision was made after the issue was
Gebated at a board meet
the death penalty is
ciety. Some people, the ma
have no redeeming qualities.
threat to society as long as they are alive.

Frustration was expressed at our permis-
sive legal system, which seems to turn crim-
inals loore while they remain a threat to oth-
ers. The a was made that if
Creech's Geath sentence had been

carried out, he would not have killed Jensen,

~

ive

.e IDAHO STATESMAN, Boise, Sunday, September 38, 1981

Vhy- The Statesman now favors the. death penalty,

i@,J)' These whe epposed the editorial position
Dear . Made sirong arguments, too.

' 2 ee eee

above many other nations ts value i puts

Rea er em human life, they said. In Ei Saivedor,
--vgl irae and many other countries, the disre

pay ae : ff pee py te Sy
——s __——_—————— . cans purposefully to a human being, no
the 23-year-old inmate from Pocatello who » matter what the circumstances, the

had the misfortune to be alone with C
during an exercise period.
No members of the board thought

Fi fe

death penalty served as a deterrent. The Supporters of the death penahy
lief wns that people who plot and carry out a .? ake cami to ine
Se eee ee ee ee eee Ms
death penalty is applied — don’t plan to ted * murderers. J

caught. The board also reasoned that .. ‘The subject of the death penalty came be

cause most murders are crimes of
capital punishment doesn't serve as a
rent. Those killings are committed in a fu

ii

ni
ie
ites

t
Ht

!

rehtl
i
i
ig
YY

:
i

hi

ti
;
WAAL
hitFt

Ordinarily such articles would noc find their way into

an appellate opinion. But, ordinarily such articles are not part
of an appellate record. Here, sad to say, they are part of the
appeliiace record which we review Ordinarily, if in an sppellate
court record, they are found as exhibits to motions for change of
venue prior to a trial or motions directed at excessive publicity
which allegedly deprived an accused of a fair trial. Such is noe
so here.

The articles are part of che appellate record because
they were in the presentence report submitted to and considered by
the trial courc in reaching its sentencing cecision, concerning

which Justice Huntley has written separately, and co which I will

hereinafter turn, infra, time permicting

In addition to the public favor whi might reasonably
be expected by yielding to the views of the local newspaper, just
chree weeks prior to that publication, a tost highly respected
districe judge at a resentencing hearir ina pical case scaced
on the record at chat hea his fire Tha he
present makeup of the members of the Supreme Court of che Scate of

Idaho would not affirm a death sentence,

under any circumstances, factual circumstances, that were pre-

-

sented to thes.” Upon thac basis, but also noting the Court's
agonizing on having previously imposed a death sentence on that
defendant, noting also che defendant's agony in two or three years
incommunicado on death row while the Idaho Supreme Court reviewed

his findings of fact and conclusions, the court said: "And for

this reason, I refuse to follow the mandate of the Supreme Court

and make findings in mitigation." State of idaho v. Osborn,
Idaho __—sC (No. 13400, May 1983)
The trial court's remarks, being newsworthy, were given
prominent statewide dissemination. So thusly ict has been made

evident that a decision from this Court upholding any death

-$l-

sentence, and especially one for Mr. Creech, was hailed as popular
even before “Mr. Creech came before the districe court for sen-
tencing

Shunning such influences, and agreeing with Justice
Huntley that no person shall be puc to death without due process
of law, no spatter how deserving of that penalty, and regardless of
his own desire for such an execution, for reasons expressed by
Justice Huntley, I must also conclude thac in this case che sen-
tencing procedure was a total failure of due process under both
the Constitutions of the United Scates and of the Stace of Idaho,

a

specifically alluding to the remarkable use of a presentence

report comprised almost exclusively of hearsay, without any right

f any cros-xamination. Obvious in the extreme, and with
constitutional due process concerns put asice, the statutory pro-
re selecte yy the legislature for hi ve decision

between a sentence of life and dé N was ft wed

i? legislature spe ca required that where
moos 1of £ cea is a s¢ ence ; nay c m sec the only
alcernaci eing a life sentence, there will be a sentencing
hearing, the purpose of which is for HEARING relevant evidence and
argument of counsel. z.C. § 19-2515 (e) While “relevant evidence”

is a term which may, perhaps, be open for discussion, the word
hearing’ is not Since statehood, and before, this Court has
steadfastly distinguished between evidence which a trier of an
issue hears live from the witnesses, and evidence which, like on
appellate review, is by affidavits, documents; or, otherwise put,
a “cold record.
Thac the trial judge made use of the presentence reporc,
perhaps almost exclusively, is not to his discredit--not according
to a three member majority who experience no trouble in secing

that resolution of a life or death issue may be determined "from

e

the voluminous information available in the presentence report.”

-82-

Defense counsel's request for a hearing (by @ jury)
where the aggravating and mitigating factors would be decided
on the basis of live testimony of witnesses should have been
honored Whatever may be the law under the Federal Rules cf
Civil Procedure, relied upon by che majoricy, although I.C
§ 19-2515(c)} direces the trial judge to “order a presentence

ad

investigation to be conducted, the statute does not, nor does

-
‘

it purporce to, nor could ic when viewed under a due process

challenge, declare that the report of that investigation, or

any parc of it, may become the evidence upon which a judge

properly a jury) may render a death sentence Ic will serve as
a source of informati to prosecutors and defense counsel, but
4 is a yuld e tne extent f i permissidie use wnere
s defe : as bet tied y a if ar , vicced of first
pres ‘ evicd e : rice is reac efore the sen-
te er : ; Rg e sat = ré ered the verdict
eta ‘ ‘ gnize his 2 r cha idence admitted
the rial shall not be cons re ind need not be repeated
a he sentencing hearing leari r tr stature contem-
places that where there has not been a trial, that evidence will
necessarily have to be presented to the sentencing authority--
ye it judge or jury. The majority in this case are of a different
view, obviously. Hence it borhers them not chat the facts of

the homicide were laid before the trial judge in the form of
newspaper articles and editorials, and in garbled reports of

a number of taped interviews with the sheriff's department con-
ducted with Creech--the first of which in my reading of the
presentence report discloses to have taken place with a complete
absence of any Miranda warnings

The majoricy'’s reliance on some recent Idaho cases

for the wholesale admission of such hearsay (The presentence

report consists of 13 pages To ic are attached various documents
-8}-
APPENDIX AB}

a

shadow,’ Snyder v. Massachusetts, supra, and the
defendant's absence in such circumstances had no
constitutional significance. Nor, for the sase
reason, could a rule or statutory violation of no
consequence be the besis for setting aside the
appellant's sentence on the theory that it was «
violation of state statute and rule. Rule 52,
z.CR.

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

“He argues that fundamental fairness re-
quires that the prisoner be ‘looked in the eye'
at the time of sentencing, that person to person
confrontation at the tise sentence is announced
is necessary because {it say induce the judge to
be sore ‘humane’ in passing sentence, and that
fundasental fairness as an elesent f the due
process clause requires that closed
ceedings at sentencing be 3.

» Secret pro-

f re ven re

“The suggestion that the due process clause
requires the judge to look the defendant in the
eye at the tise sentence is pronounced in order
te influence the judge to be sore ‘husane,'

smacks of an argument that somehow the due proc-
ess clause requires that the sentencing judge be
intimidated by the magnitude of the task before
hie and thereby frightened away from a death
sentence. Respondent has found no case support-
ing this theory, and the appellant cites none. In
fact, guided discretion at sentencing requires
that the judge be influenced only by objective

factors related tet the ffender and his criee.
Crepe v. Georgia, 428 U.S. 153, 96 §.Ce. 2909, 49
L.Ed.2d B59 (1976).

“Appellant als argues that because the
sentence was not orally announced he was not
given the opportunity ¢t state whether there was

’ ’
any legal cause why sentence should not be

pronounced.

“The defendant's right to be heard before
sentence is pronounced is undisputed. Rule
33(1), I.C.R.,; State v. Goodrich,97 Ideho 472,
546 P.2¢ 1180 (T5976). However, che right of
allocution requires only that ‘a trial judge
before sentencing must directly address the de-
fendant, and offer him personally a clear oppor-
tunity to make a statement in his own behalf, and
to present any inforsation in mitigation of pun-

« ish@ent. . . State v. Goodrich, 97 Idaho at
480. Appellant was not only offered the right to
speek several times, but he took advantage of the ~
right of allocution and made a lengthy statesent
to the court before sentencing. The right of
allocution does not contemplate that the defen-
dant may continue to speak forever, or that his
counsel may do so. Orderly process requires thet

APPENDIX A96

o
‘
.
which go to a depth of 2 5/8 inches.) is misplaced. Those cases,
Stace v. Johnson, 101 Idaho 581, 618 P.2d 759 (1980), Scate vy.
Tucker, 97 Idaho 4, 539 P.2d 556 (1975), to which might have
been added State v. Coutts, 101 Idaho 110, 609 P.2d 642 (1980),
and Ybarra v. Dermice, Idaho __, 657 P.2d 14 (1983),
did not involve sentencing for first degree murder Nor does
Scare v. Osborn, 102 Idaho 405, 631 P.2d 18 981) suscain the
Osbor majority opir t r ts ¢ , ng che se of wholesale,
random. hearsay In Osborn that defendanc, ¢ . pleaded guilcy
: first d ee murder T? shorn ( ta sith which 1
ic } aggre cna ’ wa ct? re perm, sible ‘ iS cr l
3 of a prelim iry hearing trans live testi-
pres r evid ce r er rift - and gy the manda-
c a aR : ) ; : = that issue. and
ies alone . . on . ‘ co a
: v re ‘ t part of
‘ we : ‘ f ‘ ‘ +?
‘ « ‘ irs ‘ aopre
. ge could
1 ; : , st-c icti t ; f the rt ire of
r¢ —_ 3 ar the nature f his and of his
pccte The ma ity sin choose t is re that m Osborr
‘ f the defendant not only pleaded s clie guilty
d mot. in the face of the 1977 Act, claim a right to jury
crial at sentencing, and did himself rely upon the preliminary
testimony and material in the presentence report in presenting
matters in mitigation lI can understand a majority opinion
which in Osborn thus theorized that che error in not following
statute was Waived even ¢ houg! it is get erally believed
a alic death sente e ca be imposed only when the statu
? e ‘ sely adhered ts but I mmmot « nrehend
; pjoric pinion which allows rampant hearsay at he sentencing
-~6*
APPENDIX AG4
ee - ~ -*
SS Sf

et sose tise the proceec g cog t am end and
the judge announce the sentenc:

Respondent's Brief, 13-18
Notwithstanding this strony content Lor froe the state, the
Court, some three and one-half sonths after hearing arguaent,
entered its order vacating the death sentence which the district
judge had iaposed on Creec?

“In the above-entitled cause de ftendant Creech
entered a plea of guiity ¢t a charge of first degree
eurder and in accordance with I.C. § 19-2515, the
district court conducted a hearing into esitigating or
aggravating circumstances and thereafter on the 25th
day of January, 1982, the district court purported to

‘

impose the death sentence wpon the defendant; and
r ’

"The cause being before this Court both on appeal
by the defendant and als pursuant ¢t the autosatic
review of death sentences sandated + 1.c. § 99-2827;
and

“It appearing fros the record, without any con-
tention otherwise by the res; lent tate f Idaho,
that contrary et the requi!irements 4 § 19-25
and 1.C.R. 43(a), the trial judge pur rted ¢ ispose
sentence in the absence f defendant and his counse
and without the presence of defendant and his counsel
in open court, but rather by sean f a written isgpo-

sition of a sentence of death;

“NOW, THEREFORE, IT | (ERERY RDERED chat the
sentence of death isposed upon the defendant in the
absence of the defendant and his counsel be and the

same hereby is vacated and the cause is remanded to
the Honorable Robert Newhous:
Fourth Judicial District of the State f Idaho, Ada
County, sho 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 {spose such sentence upon the defendant
Thomas Eugene Creech as to the said District Judge may

appear to be just and appropriate. In the event that
said shall ispose a sentence of death, a warrant
therefor shall issue in accordance with I.C. § 19-
2705; and

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

"IT IS FURTHER ORDERED that this Court shall
retein jurisdiction of this cause pending compliance
with this Order and chereafter will determine the
issues on appeal; and

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

APPENDIX A9?7 —

trial, but noc at guile trials. Ic would seem that the second
trial is considerably more important chan is che firsr.

The majority ignore the highly singular fact chat
today's presencence investigation and report are of rather recent
origin, and, from sy own study, came into existence where a
defendant nocified che trial judge of his intent cto ask for
leniency, usually some form of withheld judgment or suspended
sentence, coupled with a term of probation. This Courc, however,
has cisused the procedure to the detriment of those who were
supposed to benefit therefrom As suggested reading I submit

my dissents in Coutts, Johnson, and Ybarra

For my part, with what I consider proper and due defer-

ence to the holdings of the Supreme Courc of the United States,

in matters of death sentencing, I cannot in pood conscience
x away when the statutory procedures are not followed Nor
‘ ~ . rh °s> 4 - «- ?
‘ i ‘ el ‘ * ‘ ses ai
™ hace an“ , a r ‘ ‘ ‘ teé ‘ ‘ bron he
A g ha Le ear . r R far? er . " that
° ef re 7 4 ’ ‘ |
A j a “« . ve e ©, I ;
té tn fA

In the Supreme Court of the State of Idaho

Reference N 82-92
TATE OF IDAHO,
Plaintiff-Respondent,

Supreme Co

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1706%3A1. Public record. Not legal advice.