Petition — SIVAK v. IDAHO (No. 83-6326)

Supreme Court brief1983

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IN THE

q SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

LACEY M. SIVAK,

Petitioner,

~ §3-6826

STATE OF IDAHO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF IDAHO

DAVID Z. NEVIN

SEINIGER & NEVIN

Attorneys at Law

P.O. Box 2772

623 W. Hays

Boise, Idaho 83702

(208) 342-0073

*ROLF M. KEHNE

Chief Deputy Ada County

Public Defender i

303 W. Bannock

Boise, idaho 83702

(208) 343-6466

Attorneys for Petitioner

*Attorney of Record

QUESTIONS PRESENTED

1. Can a sentencing judge impose a death sentence

based on factual findings contrary to those made by the

jury in its verdict on

guilt?

2. Can a sentencing judge in a capital case re-

ceive and consider unsworn, self-serving, extrajudicial

statements by a non-testifying co-defendant, and use

such statements as the

findings in imposing a

3. Can a capital

a trial by jury on the

to the imposition of a

facts involve the acts

basis for critical factual

sentence of death?

defendant be denied the right to

aggravating facts prerequisite

sentence of death, where those

and mental state involved in

the commission of the crime?

TABLE OF CONTENTS

Page

Questions Presented i

Authorities Cited IV-vVI

Citations to Opirions Below ]

Jurisdiction 2

Constitutional and Statutory Provisions

Involved 2

tatement of the Case 2A-C

Reason for Granting the Writ

I. This Court should grant the writ

because the sentencing court in a non-

jury cavital sentencing scheme may not

constitutionally base a ceath sentence

for murder on its own finding beyond

a reasonable doubt that the defendant

premeditated the murder when the jury

has previously acqu.tted the defendant

of murder committed by premeditation. 3

II. This Court should grant the writ because

the Idaho Courts are in conflict with

the Fleventh Circuit in failing to

recognize the right to confront and to

cross-examine in the cavital sentencing

trial. 8

III. This Court should grant the writ to

determine the constitutionality of

non-jury capital sentencing. 13

a.) Near-unanimous requirement of

jury sentencing in capital cases

among the states is

b.) Sixth and Fourteenth Amendment

right to trial by jury 17

c.) Eighth Amendment 20

d.) Conclusion 23

IV. CONCLUSION 23

Appendix A

- Opinion of the Idaho Supreme Court Al

- Order denying Petition for Rehearing A48&

- Opinion of Justice Bistline dissenting

from denial of Petition for Rehearing. A49

TABLE OF CONTENTS

Remittitur

ix B

Report of the Sentencing Judge on

Imposition of the Death Penalty

Judgment of Conviction

Order of the Idaho Supreme

Court remanding for resentencing

Order of the Sentencing Judge

setting resentencing hearing

Judgment of Conviction on

mR r aA SNH

uo “J NO

Interrogation

co-defendant

ix &E

Gaho Statutory Provisions

§i9=-2515

§18-4001

§18-4002

§18-4003

§18-4004

Appendix F

- Newspaper articles

AUTHORITIES CITED

CASES CITED

Arizona, v. Rumsey, No. 83-226

Ashe v. Swenson, 397 U.S. 436 (1970)

Backstrom v. Herold, 383 U.S. 107 (1966)

Bullington v. Missouri, 451 U.S. 430 (1981)

California v. Green, 399 U.S. 149 (1970)

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

Cole v. Arkansas, 333 U.S. 196 (1943)

iabama, 380 U.S. 450 (1965)

Douglas v.

Duncan v. Louisiana, 391 U.S. 145 (1968)

Gardner v. Florida, 430 U.S. 359 (1976)

Godfrey v. Georgia, 446 U.S. 420 (1980)

Graham v. West Virginia, 234 U.S. 616 (1912)

Gregg v. Georgia, 428 U.S. 153 (1976)

Kinsell v. Singleton, 361 U.S. 234 (1960)

Knapp v. Cardwell, 667 F.2d at 1267 (Adam, J.)

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

Massey v. United States, 281 F. 293 (8th Cir. 1922)

McGautha v. California, 402 U.S. 183 (1971) '

Morissette v. United States, 342 U.S. 246 (1952)

Mullaney v. Wilbur, 421 U.S. 684 (1974)

Pointer v. Texas, 380 U.S. 400 (1965)

Presnell v. Georgia, 439 U.S. 14 (1978)

Proffitt v. Florida, 428 U.S. 242 (1976)

Proffitt v. Wainwright, 685 F.2d 1227, cert. denied

104 S.ct. 509 (1983)

Roberts v. Louisiana, 428 U.S. 325 (1976)

CASES CITED (CONT'D) PAGE

Sealfon v. United States, 332 U.S. 575 (1948) i

Spaziano v. Florida, No. 833-259 7, 3, 23

Specht v. Patterson, 386 U.S. 605 (1967) 18

State v.. Martinez, 643 P.2a@ 555 (Id. Ct. App. 19382) 19

State v. Olin, 103 Idaho 591, 648 P.2d 203 (1982) 4

State v. Quinn, 623 P.2a 630 (Or. 1981) Lay Le

Troop v.. Dailies, 356 U.S: 86 (1958) 21

United States v. Kramer, 289 F.2d 909

(2d Cir. 1961) 19

United States v. Martin Linen Supply Co.,

Inc., 430 U.S. 564 (1977) 5

Witherspoon, v. Illinois, 391 U.S. 510 (1968) 22

Woodson, v. North Carolina, 4238 U.S. 280 (1976) £45. 23522

STATUTORY PROVISIONS

Fla. Stat. Ann. €921.141 (West Supp. 1980) 14

Idaho Code §18-4001 2

Idaho Code §13-4002 2

Idaho Code §18-4003 2, 15

Idaho Code §18-4004 15

Idaho Code §19-2827 iS

Idaho Code §19-2515 2

1973 Idaho Sess. Laws, ch. 276 (F.B. 195) 14 P

OTHER AUTHORITIES

4 Blackstone's Commentaries 350 (Louis, ed. 1900) 19

W. Forsyth, History of Trial By Jury 259 (1952) 20

Gillers, Deciding Who Dies, 129 V.Pa.L.Rev. 1 (1980) 14

Nebraska Judiciary Committee Hearing, LB 268,

pp. 29, 32-33 (February 14, 1973) 16

Scott, Trial by Jury and the Reform of Civil

Procedure, 3l Harv. L.Rev. 669 (19198) 20

OTHER AUTHORITIES (cont'd)

PAGE

Warren, New Light on the History of the Federal

Judiciary Act of 1789, 37 Harv.L.Rev. 49 (1923) 20

5 J. Wigmore, Evidence §1367 (3d. ed. 1940) ll

SUPREME COURT OCF THE UNITED STATES

OCTOBER TERM, 1983

+ ,

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TAT! E i

R rn ant

PETITIO? WRIT OF CERTIORARI TO THE

eaee a ahem sa ana

Us x |e Ri vr 4 DAHO

f PR . + +

Lacey »} Sivak, Petitioner, respectfully prays

that a Writ of Certiorari issue to review the opinion

ourt of the State of Idaho

OPINIONS BELOW

The opinion of the Idaho Supreme Court affirming the

Petitioner's death sentence, the dissenting opinions

thereto, the Court's order denying a petition for re-

hearing and the dissent to the denial, and the Court's

remittitur are set fourth in Appendix A. pp. 1-52.

These opinions have not as yet been printed in the

oficial reports.

JURISDICTION

The opinion of the Supreme Court of Idaho was filed

on August 15, 1983, App. A, pp. 1-46. Rehearing was

denied on December 27, 1983. App. A, p. 47. Jurisdiction

yf #+hi c +} 3 5 199%

fF this Court is invoked pursuant to 28 U.S.C. §1257{3),

Dat i — aving accertead he >, and accertina herein

Petitioner having erted below and asser ig he

+ + -_ + h + ~ +h ‘Qa +

eprivation of rights secured by he Constitution of j

“i - pa :

the United States. The Certificate of Mailing of n-

el of cord is forwarded t the Court under separate

AAMCINTHEMTAMAT AMA GoaminnbYy BeAuTeIT Rms TRATES

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Fifth, Sixth, Seventh, Eighth,

and Fourteenth Amendments to the Constitution of the

United States. It further involves Idaho's statutory

capital punishment scheme, which provides in pertinent

part that the death penalty decision shall be reached

the court rather than by the jury. These include

I.C. §§19-2515, 19-2827, 18-4001, 18-4002 and 18-4003.

These provisions are lengthy and are therefore included

in Appendix E.

STATEMENT OF THE CASE

Petitioner and his co-defendant Randall Bainbridge

were accused of a gas station robbery in which a clerk

was killed. The co-defendant disqualified the trial

judge and his case was severed from Petitioner's ane

assigned to a separate judge. At Petitioner's trial the

jury was instructed that under the State's Amended Infor-

rn ?

mation it might find Petitioner guilty of first degree

murder either by premeditation’or on a felony muréder

theory, or in both these ways. The jury, however, found

De ; ; . 109 vw - m Wher 5°r A 4 an" \1}

Petitioner not guilty of murder by premeditation, but

convicted him on the felony murder count. The jury also

The State's Information, the court

90)

—

“

the jury's verdicts are all discussed at leng

where in this Petition.

Following return of these verdicts Petitioner de-

manded jury trial of aggravating circumstances but the

court discharged the jury permanently. Appendix C, bd.

18. Idaho statutes and case law co not provide for jury

sentencing or jury participation in fact-findnag at the

gapital sentencing trial. See, I.C. §19-2515, Appendix

E, p. 1; State v. Creech, 670 P.2d 463 (Id. 1933).

After a sentencing hearing the trial judge issued

from chambers his Report on Imposition of the Death

Penalty, App. B, pp. 1-8, a Judament of Conviction

ordering that Petitioner be put to death, and a death

warrant. Because this sentence was imposed in the Peti-

tioner's absence the Idaho Supreme court later ordered

a resentencing, App. B®, p. ll. The resentencing occured

some sixteen months after the original sentence. The

judge nonetheless refused to hear evidence in

mitigation, and issued a Report on Imposition of the

Death Penalty which was identical to the first. App.

B, pp. 21-28.

In setting the penalty at death the trial judge

made direct findings, beyond a reasonable doubt, that

ft)

}

ated the murder in direct contravention to the

jury's accuittal on this count. These findings (that

Petitioner killed the ictim to prevent her acting as

a witness to the crime and was "cool ane collected" in

joing so are discussed in more detail elsewhere 1n this

Petition.

On direct appeal the Idaho supreme court affirmed.

It reiterated its position, reached earlier in State

v. Creech, federal Constitution coes not

ia)

guarantee jury participation in capital sentencings.

(App. A,

p. 3-7). On that appeal Petitioner also con-

i”,

tended that the inconsistency between his acquittal by

the jury of premeditated murder on the one hand, and the

sentencing court's findings on the other violated federal

constitutiofial rights found in the Sixth, Eighth and

Fourteenth Amendments. ‘The Idaho supreme court rejected

these contentions, suggesting that the sentencing judge's

findings were not inconsistent with the jury's verdict,

but were rather based on information not availabie to

the jury. (App. A, pp. 12-13).

In so ruling the Idaho Supreme Court was able to

point to only one bit of evidence which supported the

judge's contradictoiy finecings, but which was not seen

by the jury: the self-serving, unsworn, uncross-examinated

Statement given by Petitioner's co-defendant Randall

Bainbridge. This statement, given pursuant to interro-

gation shortly after the co-defencant's arrest places

primary responsibility for the crime on Petitioner.

(App. D, pp. 1-75). The co-defendant was not cross-

examined by Petitioner The sentencing court at no

time observed actual testimony given by the co-defendan

The statement was inc Jed among the police reports in

the presentence report pr red for Petitioner's sen-

tencina.

Petitioner Jid n+ ‘oe ect + entre ~ina +° inc]

S the co-defen nt” tatem a r esentence in-

Stigation report. nder Ic@aho law a failur to ohjec

oes not waive errors in capital cases. State v. Osbor

LG@2Z Idaho 405, 410, 631. 2.20 at. 193 (1932). On airecse

appeal to the Idaho supreme court Petitioner complained

that the sentencing judge's hearing procedure had faile

to put him on notice of the issues and evidence to be

considered at sentencing, and that the valid admissible

evidence adduced at hearing failed to support the sen-

tencing judge's conclusion that Petitioner was primarily,

responsible for the murder ane that he rationally and

cooly planned its commission. As noted above, the Idaho

supreme court ruled that these findings were supported

by the co-defendant's interview. On Petition for Re-

hearing Petitioner invited the Idaho supreme court to

reconsider the confrontation clause aspects of its de-

cision--the court summarily denied the petition, with

Justice Ristline again dissenting on this and other

issues. (App. A, pp. 49-31).

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT THE WRIT BECAUSE THE SEN-

TENCING COURT IN A NON-JURY CAPITAL SENTENCING

SCHEME MAY NOT CONSTITUTIONALLY BASE A DEATH

SENTENCE FOR MURDER ON ITS OWN FINDING BEYOND

A REASONABLE DOUBT THAT THE DEFENDANT PREMED-

ITATED THE MURDER WHEN THE JURY HAS PREVIOUSLY

ACQUITTED THE DEFENDANT OF MURDER COMMITTED

BY PREMEDITATION.

As noted above, the jury acquitted Petitioner of murder

committed by premeditation. The jury was presented with

two alternative theories on which it might base Petitioner's

juilt of murder. The State's Information, amedned after

jury selection but before evidence charged in Count II

that Petitioner "did wilfully, unlawfully, deliberately

with pre-meditation and with malice aforethought, murder”

the victim. Count III alleged that Petitioner was guilty

of murder because he "did in the perpetration of a robbery,

a félony,; Kill” the victim. App. ¢C; p. C4é. The eourt

instructed the jury that "[y]ou may find the Defendcant

guilty of either one or both of these counts." App. C.

p. Cl4. The jury was also instructed that Petitioner's

guilt could be premised on aider and abetter status.

App. C, p. C15. After about seven hours of deliberation

. , 4 .

the jury sent a note to the trial judge:

If we convict him of robbery and

agree that a murder took place by one

or both of the two men do we HAVE to

convict him of lst degree murder on

count III, or can we convict him of

second degree murder?

App. C, p. 17. The judge directed the jury to continue

deliberations as previously instructed.

The jury ultimately returned a guilty verdict on

Count III, felony murder. App. C, p. C9. On Count II,

however, the charge of murder by premeditation, the jury

returned a verdict of "not guilty." App. C, p. C7.

Nonetheless, in its Report on Imposition of the

Death Penalty, App. B, pp. Bl-7, the district court

found "that the defendant knew the victim. . . and realized

that she could identify him if she were left alive after

the robbery," App. B, P. B5, and that Petitioner "appar-

ently was mentally “5401 and collected, with the murder

being an intentional, rational act.” App. B, pp. B5-6.

The court does not state the certainty by which these find-

ings were made. It repeats their substance, however, in

section 6 of itg Report where statutory aggravating

circumstances are listed, and “[t]hese aggravating circum-

stances are all found by this Court to be beyond a reason-

able doubt." App. B, p. Bé. In finding "c.)" the Court

decides that the murder was one defined by Idaho Code

§18-4003(d) (murder committed during a robbery) accom-

panied by the specific intent to kill. The court then

adds that

"[a)fter the robbery commenced the

defendant realized the victim could iden-

tify him if she were left alive after

this robbery." App. B, p. B6é.

These findings amount to the dictrict court's conclu-

sion, beyond a reasonable doubt, that Petitioner was indeed

guilty of premeditated murder, since under Idaho law pre-

meditation "does not require an appreciable space of

time between the intention to kill and the killing," but

rather "may be as instantaneous as two successive thoughts

of the mind." State v. Olin, 103 Idaho, 591, 648, p. 2d

203 (1982); Carey v. State, 91 Idaho 706, 710, 429 P.2d

836, 840 (1967). The district court's finding of pre-

meditation directly clashes with the jury's acquittal.

This clash is confirmed by the decision of the Idaho

Supreme Court in Petitioner's case. At slip op. p. 13,

App. A, p. Al3, the court rejects his argument that

the judge's findings are inconsistent with the jury's

verdict with a sleight of hand which actually confirms

the presence of inconsistency. The court rules that

the trial judge's decision was based on information not

available to the jury:

Thus, the findings of the jury, and

the findings of the trial judge, are not

inconsistent; rather they are based on

different ranges of information. Id.

Contrary to its own terms this language establishes the

presence of inconsistency--its effect is rather to 2xplain

why the inconsistency is permissible. This language is

most important for what it omits. Presumably the Idaho

Supreme Court could have ruled, as a matter of state law,

that the trial court's finding that Petitioner killed

the victim after realizing she would be a witness to

the robbery was not inconsistent with a finding of pre-

meditation either in abstract, or as this jury was in-

structed. That it chose not to do so establishes its

own understanding t!.at the findings were in actual con-

flict, and that the trial judge's "override" was based

on his review of additional evidence.

This inconsistency impermissibly interferes with

Petitioner's right to a final jury verdict, and to be

free from double jeopardy.

The right to trial by jury is fundamental and designed

to protect individuals against arbitrary government rule.

Duncan v. Louisiana, 391 U:S. 145, 151, 155, 156 (1968);

United States v. Martin Linen Supply Company, 430 U.S. 564,

575-5 (1977). Under this view of the jury's function, its

role traditionally has been to stand between the accused

and the government or the court. Thus this Court in Duncan

cited with approval a study which noted that

when juries differ with the result

at which the judge would have arrived,

it is usually because they are serving

some of the very purposes for which

they were created and for which they

are now employed.

Duncan v. Louisiana, supra, 391 U.S. at 157, citing £.

Kalven, Jr. & H. Zeisel, The American Jury.

This Court has also had occasion to indicate its

assessment of the proper weight to be accorded a jury's

verdict on the question of guilt in a capital case. In

Presnell v. Georgia, 439 U.S. 14 (1978), (per curiam), the

state appellate court had affirmed a death sentence on the

basis of an aggravating fact different from that found by

the jury. This Court held that the rule of Cole v.

Arkansas, 333 U.S. 196 (1948), is a "fundamental prin-

cipl[e] of procedural fairness [which] applies with no

less force at the penalty phase of a trial in a capital

case than to the guilt-determining phase of any criminal

trial." Presnell v. Georgia, supra, 439 U.S. at 16.

The actions of the state trial court here similarly

implicate those principles: it entered an area traditionally

reserved to the jury--the finding of a purely factual

element of the crime charged at a trial of guilt--and

substituted its judgment for the jury's verdict. When

a judge is permitted to ignore a jury's finding on an

issue within its province the right to trial by jury

is struck at its roots.

So too is the principle that no person should twice

be placed in jeopardy for the same offense. This Court

has previously held that Fifth Amendment Double Jeopardy

provisions apply no less at the penalty phase of a cap-

ital case than in any other kinds of criminal proceedings.

‘ ¢ i e guilt al he we

( el dentical to tl e at entencing, it 1 clear

that the entencing ye found what the iry rejected,

particularly when this Court considers the case "'in

a practical frame and viewed with an eve to all the cir-

on” ‘ }

cumstanées of the proceedings. sealfon v. United States

332 U.S. 575, 579 (1548); Ashe v. Swenson, 397 U.S. 436

J»

ie)

Although it may he, as the Idaho Suprems:

Court noted, that the trial judge had information before

him the jury did not hear, the opportunity to shore up

its case and present that information "is precisely what

the constitutional guarantee forbids." Ashe v. Swenson,

supra, 397 U.S. at 447; Bullington v. Missouri, supra,

451 U.S. at 446.

Certiorari is thus appropriate here, to resolve

the substantial, conflicts between the decision of the

state courts below and this Court's controlling prece-

dents. Certiorari is aiso appropriate because similar

issues are now pending before the Court in two cases

raising them in a slightly different context. In Spaziano

v. Florida, No. 83-259, the Court granted certiorari

in part to determine

[w]hether a trial judge's override

of a jury's factually based decision

against the imposition of the death

penalty violates, in all cases, the

Fifth, Seventh and Fourteenth Amend-

ments. Id.

If this Court resolves this question against the consti-

tutional validity of judge-override the Spaziano case

would have potentially controlling implications for

Petitioner's case. The trial court here based its de-

cision to impose the death penalty in part on findings

which the jury had rejected. Because of this the

the jury's vercict.

Similarly, because the decision overridden here is

a factual one, this case presents double jeopardy

questions which go beyond those in Spaziano, and re-

late to those in another case before the Court: Arizona

v. Rumsey, No. 83-226. Because the facts here place

these common issues in an importantly different light,

certiorari should be granted here to consider this case

along with those. At least, because the decisions in

Court should hold this case for summary disposition in

light of them.

THIS COURT SHOULD GRANT THE WRIT BECAUSE THE

IDAHO COURTS ARE IN CONFLICT WITH THE ELEVENTH

CIRCUIT IN FAILING TO RECOGNIZE THE RIGHT TO

CONFRONT AND TO CROSS-EXAMINE IN THE CAPITAL

SENTENCING TRIAL.

As is noted above, the sentencing judge's findings

and the jury's verdict are inconsistent with each other.

The Idaho Supreme Court found this inconsistency accept-

able, however, because the sentencing judge had access to

information not provided to the jury.

"Thus, the findings of the jury,

and the findings of the trial judge,

are not inconsistent; rather they are

based on different ranges of informa-

£i6n." ADD. Ay Bs LS.

In fact, only one such item bears on this issue at

all: the statement of Petitioner's co-defeidant Randall

Bainbridge, which was attached to the presentence report

Appendix D. Thus the sentencing. judge's decision to depart

from the conclusions reached by the jury turned only

his reading of the evidence presented at trial (nec-

essarily inconsistent with the jury's reading) and the

statement of the co-defendant. As argued above, United

States constitutional provisions prevent the judge from

finding facts inconsistent with those found by the jury.

But even if judge override is permissible in some

circumstances this Court should nonetheless grant the

writ to determine whether the judge may override by

relyina only on the self-serving, unsworn, unconfronted

and un-cross-examined statement of a co-defendant. By

perinitting such a procedure in Petitioner's case the

Idaho supreme court is in direct conflict with the

final decision of the United States Court of Appeals

for the Eleventh Circuit in Proffitt v. Wainwright, 685

F.2d 1227, cert. denied 104 S.Ct. 509 (1983), and

with this Court's precedents.

As noted above, Mr. Bainbridge, Petitioner's co-

defendant was extensively interviewed by police officers

in the presence of a deputy county prosecutor shortly

after his arrest. Appendix D. To no one's sur-

prise he offered an account of the killing which exon-

erated himself, and placed total blame on Petitioner.

Mr. Bainbridge did not testify either at Petitioner's

guilt or penalty trials (his own trial for murder was

pending throughout) and his statements have never been

subject to cross-examination. A transcript of his in-

terview was nonetheless attached to Petitioner's pre-

sentence report and reviewed by both the sentencing

judge and the Idaho supreme court.

to capital sentencing trials. Rut the constitutional

requirements of capital entencings have indergone sub-

stantial evolution since Furman v. Geoigia,408 U.S. 238(]972). The trendof this

Court's capital sentencing decisions has been toward more

etting, with an eye towar? reducing the risk f arbi-

trary imposition of the death penalty.

This Court's opinions establish that the Fiaghth

and Fifth Amendments require a channeling of sentencina

discretion and individualized treatment of the offender,

by means of rules of procedure to guarantee the accuarcy

of the information received as a basis for the choice

between life and death. In Gardner v. Florida, 439 y.s.359 (1976),

the Court condemned the practice of sentencing capital

defendants on the basis of undisclosed confidential

information made available only to the sentencing judge.

The principle of Gardner is that a capital defendant's

rights to due process and freedom from cruel and unusual

punishment are violated when he is sentenced on the

basis @f information he has no opportunity to explain

or to rebut. The Court stressed the value of a full

and open debate and stressed the unacceptability of the

"risk that some information accepted in confidence may

be erroneous." Id. at 359.

SS. 2. =

"[I]£ the disputed matter is of critical importance,

the time invested in ascertaining the truth would

surely be weli spent ix it makes the difference be-

tween life and death." Gardner v. Florida, 430 U.S.

«3 Bq

at 359-60 (emphasis added).

This Court's concerns expressed in Gardner are

best met by holding that the Sixth Amendment rights

of confrontation and cross-examination apply to the

admission of co-defendant's statements in the death

penalty trial. The unconfronted, un-cross-examined

self-serving statements of Petitioner's co-defendant

prsent by their irreliability a risk of error which is

intolerable in capital sentencing.

This,4Court recognized the right of state defendants

& “Ry

to confront and cross-eramine co-defendant's statements

in Douglas v. Alabama, 380 U.S. 415 (1965). Petitioner

asks the Court to apply Douglas to capital sentencing

trials. Even if the Court is unwilling to rule that

full confrontation clause rights attach at capital sen-

tencing trials the holding of Douglas should be extended

to capital sentencing as an element of due process.

See, Id. at 423 (opinion of Harlan and Stewart, J.J.).

The Constitution surely grants capital defendants in

thier life or death sentencing trials the same cross-

examination rights given misdemeanor defendants at trials

of their guilt Or,innocense. "[I]t is now clear that

[capital] sentencing process as well as the trial itself,

must satisfy the due process clause." Gardner, supra,

430 U.S. at 358 (1977). Among the fundamentai principles

of procedural fairness, cross-examination has been recog-

nized as an essential safeguard of a fair trial. Pointer

v. Texas, 380 U.S. 100 (1965). This Court has recognized

cross-examination as "the ‘greatest legal engine even in-

vented for the discovery of truth.'" California v.

Green, 399 U.S. 149, 158 (1970) (quoting 5 J. Wigmore,

Evidence §1367 (3d ed. 1940)).

aff.

The disputed matter here (which of the two cefendants

id the actual planning and killing) is critical. Indeed,

he tenor of the sentencing judge's Report on Imposition

€ the Death Penalty makes it clear that this finding

imary basis for his decision to order death.

The Eleventh Circuit recently reached the conclu-

ion sought here in Proffitt v. wairwright, 685 F.2d

: Orts = LL

9 2 Ian 4 a 7 . - ~ gf )

hei, ert. enied 104 S.Ct. 509 (1983).

irt's emphasis

-apital sen-

2 7 ¢ ne + 4

reliabilit

erlying t

impose the

ces is tnat

amine aa-

1 eS to CA i-

ee te

i1., 685 F.2d at 1254.

Thus the decision of the Idaho supreme court in

)

\@)

—

9 més seue 4 . _ c 3 . 5: s * oe "=

-leventh Circuit in Proffitt. In addition the problem

raised here is endemic to a non-jury capital sentencing

-cheme. This Court should grant the writ sought here

to resolve these conflicts and to offer guidance to

-12-

. THIS COURT SHOULD GRANT THE WRIT

TO DETERMINE THE CONSTITUTIONALI

OF NON-JURY CAPITAL SENTENCING.

In many respects the issues raised above are difficult

to resolve without considering the propriety of the entire

framework within which they appear. Because non-jury sen-

tencing contravenes Petitioner's rights under the Sixth,

Eighth and Fourteenth Amendments, because this Court has

not previously addressed the constitutionalit, of such

a scheme, and because the decision below is in conflict

’

93 + } A ~ 4 ; “3 } Gay . a a 6 + Nr 7 ~ Asc

with a decision of the Supreme Court of recon, this

” h ; - . + i +

Court should grant the writ.

As noted above, Petitioner demanded jury involvement

in the capital decision, and his motion was effectively

denied by the sentencing court. The Idaho Supreme Court

addressed this procedure and found no state of federal

constitutional defect in Idaho's death sentencing scheme.

a.) The nearly unanimous reguirement of jury sentencing

in capital cases among the states establishes that

jury involvement in the imposition of death is

constitutionally required.

It is of profound constitutional significance that

Idaho stands with only a tiny minority of American states

in wholly barring the jury from capital sentencing. Of

the 34 states with operative death penalty laws enacted

7 1 ; ‘ ;

Since Furman, 30 involve the jury to-some degree in

Le This number excludes Oregon, where the state Supreme

Court recently struck down its death penalty law under

the State Constitution. The Oregon law had permitted

the death sentence where the prosecution could prove

at the penalty phase that the defendant had acted

with a mental state more blameworthy than that proved

at the guilt phase, yet denied the defendant a jury

determination of the existence of that mental state.

State v. Quinn, 623 P.2d 630, 639-44 (Or. 1981).

capital sentencing.” and 27 give a capital defendant

the right to a binding jury determination that he receive

life imprisonment rather than death. That even four state

slatures have completely excluded the jury from capi-

tal sentencing does not, moreover, reflect a belief in

those states that jury sentencing is inappropriate or

undesirable.” Lach of these states had embraced jury

sentencing for decades before Furman, and their de-

cisions to enact all-judge capital sentencing schemes

after Furman and Gregg--including Idaho's decision in

1977--reflect nothing more than a misperception that

Furman's condemnation of unbridled jury sentencing de-

manded the complete exclusion of the jury from capital

sentencing. * The legislative decisions in these states

to bar the jury from death sentencing therefore manifest

only a misquided attempt "to retain the death penalty

in a “orm consistent with the Constitution." Woodson

vy. North Carolina, supra, 428 U.S., at 298.

Zs This number includes two states in which the jury

makes a non-binding recommendation of sentence to

the judge. Fla. Stat. Ann. §921.141 (West Supp.

1980); Ind. Code Ann. §35-50-2-9 (Burns 1980) The

states that now wholly exclude juries from capital

sentencing are Idaho, Arizona, Montana, and Nebraska.

Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. l,

14 and n.51 (1930).

Ds Except for four states that entirely abolished capital

punishment in the Nineteenth Century, every American

jurisdiction has at least at some time authorized

jury sentencing in capital cases. McGuatha v. Cal-

ifornia, 402 U.S. 183, 200 n.1l1 (1971). During a

period of over a century beginning in 1838, juris-

diction after iurisdiction that retained the death

penalty replaced its mandatory capital punishment

law with discretionay jury sentencing, Woodson

v. North Carolina, 428 U.S. 280, 291-92 (plurality

Opinion). By the time of the Furman decision in

1972, Colorado was the only state in the nation

to impose capital punishment without jury sentencing.

The Idaho Legislature responded to Furman in 1973 by

enacting H.B. 195, 1973 Idaho Sess. Laws, ch. 276.

H.B. 195 removed jury discretion from the death

penalty sentencing scheme by simply making the

death penalty mandatory for all first-degree rur-

ders. The Idaho Legislature does not record its

committee proceedings or otherwise provide a com-

plete legislative history, and in 1973 the legis-

lature had not yet instituted its present policy

of providing a "statement of purpose" for legislation.

The newspaper articles in Appendix F, then, are perhaps

the only way of gleaning legislative intent in

removing the jury from the death penalty sentencing

process. The comments of Rep. Miner, App. F, rp. Fl,

certainly suggest that the legislature was not

spontaneously seeking to remove the jury, but was

instead responding directly to what it took to be

the requirements of Furman.

In 1977, after this Court ruled that mandatory

death penalty sentencing was also unconstitutional,

the Idaho legislature repealed the mandatory

sentencing provisions to comply with Woodson and

Roberts in S. 1082, 1977 Idaho Sess. Laws, ch. 154.

The "statement of purpose" for S. 1082, which es-

tablished the present death penalty provisions

in Idaho, reads as follows:

STATEMENT OF PURPOSE

"Only a few years ago, the United States Supreme

Court made new 'rules' concerning imposition of

the death penalty for serious crimes. So that

we conformed with this U.S. Supreme Court inter-

pretation of the federal Constitution, the Idaho

Legislature enacted in 1973 our present death

penalty Sections 18-4003 and 18-4004, Idaho Code.

Then, last year, the United States Supreme Court

again changed the rules relating to capital pun-

ishment--after many states, like Idaho, had acted

in response to its previous decision. The Court,

in five cases, set forth new, more definitive

rules concerning sentencing where the death penalty

was sought to be imposed.

The purpose of this bill is to codify into Idaho

law these present requirements imposed on the states

by these more recent United States Supreme Court

decisions on capital punishment so that we will

conform with this latest expression of the law."

The comments of legislators on S. 1082 in newspaper

articles collected at Appendix F, pp. 2-5, also suggest

that the legislature was acting in response to its

perception of this Court's demands, as opposed to

expressing its own conclusion that the jury should

have no part in the capital punishment decision.

=15-

4.(Cont'd) In states with a more complete legislative history,

nt is much more clearly discernible. For ex-

ample, the author of Nebraska's 1973 death penalty

law, Attorney General Clarence Meyer, reported to

the Nebraska Unicameral that, under the proposed

statute:

“ATTORNEY GENERAL: The judges are the on

who decide shall it be life, or shall it be

Ceath.

SENATOR CARPENTER: This i8 just a further

interpretation t>. comply with what we think

the Supreme Court says.

ATTORNEY GENERAL: Tnat*s LSignkt.«”

iary Committee Hearing, LB 268, pp. 29, 32-33

ar’ ae ESTs) The Attorney General added

é ted toc re any of our procedure for

r C er ftebe« it : a good one."

Las, @t £3

-16-

b.) The Sixth and Fourteenth Amendments extend the

criminal defendant's right to a jury to capital

sentencing decisions.

Idaho's capital sentencing scheme is typical of

others in that it requires the sentencer both to decide

whether certain statutorily defined aggravating circum-

stances have been proved beyond a reasonable doubt, and

if so, to weigh aggravating and mitigating circumstances

to determine the propriety of a death sentence. The first

stage of this sentencing scheme--the establishment of the

Statutorily defined aggravating facts--invokes the de-

fendant's right to jury involvement in sentencing under

} + Amoanam ' “yy ar + ; uP 7) , - q

the Sixth Amendment's guarantee of trial by jury and the

Fourteenth Amendment's due process clause.

In recent decisions this Court has progressively

acknowledged Fifth and Sixth Amendment rights in capital

sentencing proceedings, even if those particular consti-

tutional guarantees might have no place in traditional

noncapital sentencing. This line of cases includes

Bullington v. Missouri, 451 U.S. 430 (1981), expressly

recognizing that a separate capital sentencing proceeding

at which aggravating circumstances are determined and

measured against mitigating circumstances is, for prar-

tical and constitutional purposes, a trial.

The Idaho sentencing scheme closely mirrors the

Missouri scheme declared by this Court in Bullington

to be a trial in all but name--except for the absence

of a jury. Most important, the prosecution must prove spe-

cific, legislatively defined aggravating facts going

beyond the elements proved at the guilt phase, and it

must prove those facts beyond a reasonable doubt. The

«l7-

aggravating facts defined by the statute do not differ

in any quality or kind from the statutorily defined

facts that the state must prove beyond a reasonable doubt

at the guilt phase.

Where elegibility for a certain sentence turns on

"a new finding of fact . .. that was not an ingredient

of the offense charged." Secht v. Patterson, 386 U.S.

605, 608 (1967), held that finding must be made ina

fashion consistent with due process. Since Specht, it

has been decided that due process in criminal cases

includes the right to jury trial. Duncan v. Louisiana,

391 U.S. 145 (1968). And the state cannot eliminate that

right by simply "redefin[ing] the elements that comprise

different crimes, characterizing them as factors that

bear solely on the extent of punishment." Mullaney v.

Wilbur, 421 U.S. 684, 698 (1974).

This is particularly clear for those "aggravating"

facts--such as the issue of premeditation presented in

Petitioner's case--which involve questions of mens rea.

See, Knapp v. Cardwell, supra, 667 F.2d at 1267 (Adams,

J.). "Where the intent of the accused is an ingredient

of the crime charged, its existence is a question of fact

which must be submitted to a jury." Morrissette v.

United States, 342 U.S. 246, 274 (1952). The Oregon

Supreme Court invalidated its death penalty statute, on

alternate state and federal constitutional grounds, for

precisely this reason. See, State v. Quinn, 623 P.2d

630 (Or. 1981). The decision in Petitioner's case thus

stands in stark contrast to that of the Supreme Court of

Oregon on this point.

-18-

Even where as aggravating allegation involves the

defendant's prior record, there is substantial constitu-

tional authority indicating that the Sixth Amendment re-

gQuires a jury trial as to its truth. See, Graham v.

West Virginia, 224 U.S. 616, 630 (1912); Massey v.

United States, 281 Fed. 293, 297 (8th Cir. 1922). Idaho

law itself entitles all criminal defendants to a jury

determination of the truth of the allegation of a prior

conviction, State v. Martinez, 643 P.2€ 555 (Idaho Ct.

App. 1982)--except in capital cases. Fven if the Sixth

Amendment Gid not apply to such findings, the selective

denial of a jury trial on the truth of such facts, only

in capital cases, would raise serious equal protections

questions under the Fourteenth Amendment. See, Baxtrom

v. Herold, 383 U.S. 107 (1966).

As Judge Friendly has stated, where an aggravating

circumstance is not "an element of the crime but rather

a fact going only to the degree of punishment" and in-

creases the severity of the sentence, "the Sixth Amend-

ment entitles the defendant to have that fact determined

by the jury rather than a sentencing judge." United States

Vi. Kraner, 289 F.24.909 (2a Cir. 1961).

In fact, the principle that factual questions in

criminal cases :.ust be decided by a jury is even more

ancient than the Sixth Amendment itself.

[T]he founders of the English law have

with excellent forecase contrived ...

that the truth of every accusation...

should afterwards be confirmed by the

unanimous suffrage of twelve of his

equals and neighbors indifferently

chosen and superior to all suspicion.

4 BLACKSTONE'S COMMENTARIES 350 (Louis Ed. 1900). In

1670, Lord Coke summarized a settled principle of English

=19«

jurisprudence: Ad. quaestionem facti non respondent

judices, ad quaestionem juris non respondent juratores."

W. FORSYTH, HISTORY OF TRIAL BY JURY, 259 (1852).

The distinction between the provence of

the judge and that of the jury is, in the

Fnglish law, clearly defined, and observed

with jealous accuracy. The jury must in

all cases determine the value and effect

of evidence. .. . The law throws upon

them the whole responsibility of assertain-

ing facts in dispute, and the judge does

not attempt to interfere with the exercise

of their unfettered discretion in this respect.

Id. at 282.

It may safely be said that at the time of

the American Revolution the general princinle

was well established in English law that

“juries must answer to questions of fact

anc judges to questions of law. This is

the fundamental maxim acknowledcacece by the

constitution."

Scott, Triai by Jury and the Reform of Civil Procedure,

31 HARV. L. REV. 669, 679 (1918). That maxim underlay

the "insistence on jury trial" in the first Congress,

which led to the Bill of Rights. See, Warren, New Light

on the History of the Federal Judiciary Act of 1789, 37

HARV.L.REV. 49, 74-5 (1923).

c.) The Eighth Amendment's principle that death sentences

must satisfy evolving standards of decency and the

dignity of man requires jury participation in cap-

ital sentencing.

In view of the "awesome finality of a capital case,"

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

J., concurring and dissenting), this Court has repeatedly

recognized the crucial rule juries play in the determina-

tion whether a capital defendant merits the death sentence.

Gregg v. Georgia, 428 U.S. 153, 181-82, 190-92 (1976) ; : see,

Duncan v. Louisiana, 391 U.S. 145, 156 (involvement of

jury in capital cases reflects a "reluctance to entrust

plenary powers over .. . life [and death] .. . to one

judge or a group of judges."

-20-

The Eighth Amendment requires at least some jury

participation in cipitel sentencing can best be apprecia-

ted by reference to the substantive Eighth Amendment

standards this Court has invoked in holding that the death

penalty ic not invariably cruel and unusual punishment.

A particular punishment is not cruel and unusual if

it satisfies two criteria. First, the penalty must

accord with contemprary moral and social values by re-

flecting "the evolving standards of decency that mark

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

Supra, 428 U.S. at 173, quoting trop v. Dulles, 356

U.S. 86, 101 (1958) (plurality opinion) Second, the

punishment must respect "the dignity of man" by serving

legitimate penological goals and by bearing a reasonably

proportionate relationship to the crime for which it is

imposed. Gregg v. Georgia, supra, 428 U.L., ut 173.

An essential medium of these concepts is the jur:.

To support its conclusion that imposition of the

death penalty in some circumstances could ac ord with

"evolving standards of decency," the Gregg plurality

looked to the two most reliable sources of responsible

public attitudes and values: ,legislatures and juries.>

Thus, even with respect to the general question whether

the death penalty comports with evolving social and moral

. The plurality noted that a majority of the state

legislatures had reenacted the death penalty after

the Court's 1972 Furman decision, Gregg v. Georgia,

428 U.S. 153, 179-81 (1976) (plurality opinion),

and that since Furman American juries, theugh im-

posing the death penalty infrequently, had done so

often enough to suggest that they did not categor-

ically disapprove of the penalty. Id., at 181-82.

~2j-

standards, the plurality found it necessary to rely on

patterns cf jury behavior. ‘The plurality's emphasis on

evolving standards, id. at 172-73, suggests that the

courts cannot rely on legislatures alone as reflectors

of reponsible community values, since a statute is static,

and, as public valves chance, it may become a less reliable

indicator than the judgment of a jury.

The Eighth Amendment also demana@s individualized

consideratior. of the propriety of the death sentence in

every capital case. Lockett v. Ohio,438 U.S. 586,605

(1978) (plurality opinion). Given "(t]he need for treat-

ing each defendant in a capital case with that decree of

respect due the uniqueness of the individual," Ibid.,

state capital sentencing schemes must ensure that in-

dividual death sentences satisfy the moral demands of

evolving standards of decency. See, Woodson v. North

Carolina, 428 U.S. 280, 303-305 (1976) (plurality

opinion); Godfrey v. Georgia, 446 U.S. 420, 427-28 (1980)

(plurality opinion). Whatever partial role the legisla-

ture can play in reflecting responsible public sentiment

on the general validity of the death penalty, only a

jury can ensure that a particular death sentence meets

this Eighth Amendment command. "“'One of the most import-

ant functions any jury can perform in making ...a

selection [between life imprisonment and death for a

defendant convicted in a capital case] .. . is to main-

tain a link between contemporary community values and

the penal system.'" Gregg v. Georgia, supra, 428 U.S.

at 181 (plurality opinion), quoting Witherspoon v.

Illinois, 392 U.S<=°510'/517,n-15 (1966): see, PEGEELCt

v. Florida, 428 U.S. 242, 252 (1976) (plurality opinion).

-22-

ad.) Conclusion

The prior décision of this Court and that of the

Supreme Court of Oregon establish that Petitioner is

constitutionally entitled to have i jury decide two

issues: first, whether the crime he committed is of

the type for which a death sentence may be imposed, anc

second, whether a death sentence is warranted under the

circumstances of his particular case. Idaho denied him

both these rights. Petitioner's case thus goes beyond

even the issues in Spaziano, supra, in which the jury

resolved the first issve. This Court should grant the

writ to resolve these lower-court conflicts and to

declare that non-jury sentencing cannot stand constitu-

tional scrutiny.

IV. CONCLUSION

The Petition for Writ of Certiorari should be

branted.

Respectfully Submitted,

ROLF TR—KEHNEY

DAVID Z. NEVIN

Seiniger & Nevin

Attorneys at Law

P.O. Box 2772

623 W. Hays

Boise, Idaho 383702

(208) 243-0073

*ROLF M. KEHNE

Chief Deputy Ada

County Public Defender

303 W. Bannock

Boise, Idaho 823702

(208) 343-646€

Attorneys for Petitioner

*Attorney of Record

o23e

awe, Ypanion 0. 440

IN THE SUPREME COURT OF THE STATE OF IDAHO

Nos. 14435 - 15022

STATE OF IDAHO,

Plaintiff-respondent, Boise Special Term, February 1983

Vv. Filed:

August 15, 1983

LACEY M. SIVAK, Frederick C. Lyon, Clerk

Defendant-appellant.

Appeal from the District Court of the Fourth Judicial

District of the State of Idaho, Ada County. Hon. Robert

Newhouse, District Judge.

Appeal from sentence of death imposed on convictions of

first degree murder, robbery, and possession of a firearm in

the commission of a felony. Judgment of conviction and sen-

tence affirmed.

Klaus Wiebe and David Z. Nevin, Boise, Idaho,

for appellant.

Jim Jones, Attorney General, and Lynn E. Thomas, te

Solicitor General, Boise, Idaho, for respondent.

BAKES, J.

Appellant appeals from a sentence of death imposed by

the trial court on convictions of first degree murder,

robbery, and possession of a firearm during the commission

of a felony. Our review is not only in response to the

1. We note that this case arrived at the appellate level under the

Same circumstances as State v. Creech, Idaho , P.2d

(issued May 23, 1983). The district judge filed written findings of

fact and conclusions of law which were delivered to Sivak and his

counsel, without benefit of an open court hearing. Because I.C. §

19-2503 and I.C.R. 43(a) require that a defendant's sentence be given

in open court with the defendant and counsel present, this Court, by

order issued on March 24, 1983, vacated the sentence of death and

remanded to the district court for imposition of a sentence in open

court. The district judge then convened court on April 4, 1983, and

in open court sentenced the defendant to death. Defendant's appeal

from that sentence was consolidated with his previous appeal, and the

present opinion disposes of all issues now present in the consolidated

cases.

appeal, but also pursuant to = review of death

sentences mandated by I.C. § 19-2827.

On April 6, 1981, Dixie Wilson, an attendant at a self

service gas station, was discovered near death by a customer.

She had been stabbed numerous times and shot several times.

Evidence indicated she had also been sexually molested. She

later died from her wounds.

Witnesses saw two men inside the station with Wilson

shortly before the murder, one they identified as Russell

Bainbridge. Appellant and Bainbridge were seen together

before and after the killing.

Appellant admitted being present during the robbery and

murder, but claimed he was merely an innocent bystander. He

claimed he did not participate in the robbery and murder and

did not carry a firearm. However, appellant's fingerprint

was found on the murder weapon.

Evidence indicated appellant had previously worked at

the station, was known to the victim, had expressed animosity

toward her, and had called to inquire who would be on duty

at the station on April 6, 1981. The gun used in the attack

was found in a storage shed rented by appellant.

Appellant was convicted and sentenced to death. He

appeals from his conviction for possession of a firearm, and

from the sentence of death imposed on conviction for murder,

robbery and possession of a firearm. ‘

2. 1.C. § 19-/827 reads as follows:

"19-2827. REVIEW OF DEATH SENTENCES--PRESERVATION OF

RECORDS.--(a) Whenever the death penalty is imposed, and

upon the judgment becoming final in the trial court, the

sentence shall be reviewed on the record by the Supreme

Court of Idaho.

"(b) The Supreme Court of Idaho shall consider the punish-

ment as well as any errors enumerated by way of appeal.

Initially, appellant argues that Idaho's death penalty

statute, I.C. § 19-2515, is unconstitutional. We first note

that a capital sentencing scheme substantially similar to

Idaho's was upheld by the United States Supreme Court in

Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909 (1976).

However, appellant makes specific objection to several areas

of Idaho's statute which we consider separately.

Appellant first argues that the involvement of a jury

in the capital sentencing process is mandated by the United

States Constitution. He asserts that since Idaho's death

penalty scheme fails to include a jury in the sentencing

procedure, it is unconstitutional. The same argument was

made and rejected by this Court in State v. Creech,

Idaho : P.2d (issued May 23, 1983). We again

reject appellant's argument for the same reason we rejected

it in Creech.

In making this argument, appellant directs our attention

to those United States Supreme Court cases that require

death penalty schemes be consistent with “evolving standards

of decency."" Gregg v. Georgia, supra; Trop v. Dulles, 356

U.S. 86, 78 S.Ct. 590 (1978). He argues that only the

involvement of a jury can ensure that the impositdon of the

death penalty remains true to societal standards of decency.

However, the United States Supreme Court has never

decided the question of which authority is required to

decide what sentence to impose in capital cases - judge or

jury. The specific question of the constitutionality of a

scheme not involving a jury in the sentencing process has

never been decided by that court. Indeed, the Supreme Court

has recognized, in dicta, that judge sentencing should lead

to greater consistency in sentencing, which is one of the

ultimate goals in the capital sentencing scheme.

oan

“This Court has pointed out that jury sentencing

in a capital case can perform an important societal

funccion, ... but it has never suggested that jury

sentencing is constitutionally required. And it

would appear that judicial sentencing should lead,

if anything, to even greater consistency in the

imposition at the trial court level of capital

punishment, since a trial judge is more experienced

in sentencing than a jury, and therefore is better

able to impose sentences similar to those imposed

in analogous cases." Proffitt v. Florida, 428

2. 242, 96 S.Ct. 2960 (1976), reh. den. 429 U.S.

75. a

The values possessed by a particular community, which

should somehow be reflected in a capital sentencing scheme,

are adequately represented by the elected representatives of

the community, who enact the local death penalty statutes.

Their representative status, coupled with the considered

judgment of an elected trial judge as the sentencer, should

assure both consistency in the application of the death

sentence and adequate reflection of community values. We

see no reason why a sentencing scheme not involving the jury

should be declared unconstitutional under the United States

Constitution. See Barclay v. Florida, __ U.S. ___ss (issued

July 6, 1983) (where jury recommended life sentence, trial

judge fully justified in overruling jury and imposing death |

sentence).

Although not alleged by appellant here, an argument has

been made that Idaho's present sentencing scheme, excluding

the jury, violates the Idaho Constitution. While normally

we would not consider arguments not raised by the parties,

capital cases present an exception to that rule in that we

are required by law to conduct an independent review of

cases where the death penalty has been imposed. I.C. § 19-

2827. We now proceed to consider whether the present I.C. §

18-4004 and I.C. § 19-2515, as a sentencing scheme, violate

the Idaho Constitution.

ole

ur state constitution was drafted August’ 6, 1889, and

adopted by the people in November of 1889. Art. 1, § 7, of

that constitution reads: "§ 7. RIGHT TO TRIAL BY JURY.--

‘

The right of trial by jury shall remain inviolate

This section has been interpreted in several of our cases as

guaranteeing the right ‘o trial by jury as it existed at the

time of the adoption of the Constitution. See People v.

Burnham, 35 Idaho 522, 207 P. 589 (1922); Christiansen v.

Hollingsworth, 6 Idaho 87, 53 P. 21l (1898). Thus, to

cetermine what right is preserved, it is necessary to determine

what right existed at the time of enactinent of the Constitution.

The tracing of the sentencing function in capital cases

Degins with the 1864 Criminal Practice Act, which, although

not in effect at the time of enactment of the Constitution,

was an immediate predecessor of the section in effect in

1889. The 1864 section read:

[T]he jury before whom any person indicted for

murder shall be tried, shall, if they find such

person guilty thereof, designate by their verdict,

whether it be murder of the first or second degree

vy Every person convicted of murder of the

first degree, shall suffer death i

Under the 1864 section, the jury, in determining the

crime committed, in effect chose the sentence to be imposed.

A similar procedure existed in the 1887 enactment, 1887 R.S.

§ 6563. It read:

"Every person guilty of murder in the first degree

shall suffer death, and every person guilty of

murder in the second degree is punishable by im-

prisonment in the Territorial prison not less than

ten years, and the imprisonment may extend to

Lite.”

Thus, if a person was found guilty of first degree murder,

the penalty was death. However, if a person was found

guilty of second degree murder, the sentencer was invested

with the discretion to set a term of imprisonment from ten

years to life. That sentencer was the judge, and not the

«Ss

“

ury. See 1887 R.S. § 7992 (where discretion is conferred

upon the court, the court will hear evidence in aggravation

or mitigation of the punishment).

Under the scheme that existed at the time of the adoption

of the Idaho Constitution, the jury determined whether a

person was guilty of first cr second degree murder. Once

the degree of crime was determined, the jury's factfinding

function was completed. It is certainly true that the

jury's decision had an impact on the sentence which was

imposed. Thus, if the jury determined that the defendant

was guilty of only the crime of second degree murder, no

death penalty could be imposed. However, that is only an

incidental consequence which is true in every case where a

jury tinds a defendant guilty of a lesser included cffense

from that with whicn the defendant is charged. Thus, if a

Gefendant is cherged with first degree burglary, and the

ury finds him guilty of second degree burglary or perhaps

petit larceny, the jury's determination will have a substan-

tial impact upon the sentence which is imposed upon the

defendant. However, that does not. mean that under our

Constitution a defendant is entitled to have a jury impose

the sentence. While the jury's determination of the crime

or which the defendant was guiity affects the sentence which

may necessarily be imposed, that incidental effect does not

mean that the jury is an integral part of the sentencing

process. The argument that is made that R.S. § 6563, in

effect in 1889 when the Idaho Constitution was adopted,

constitutionalized a right. to be sentenced by a jury in

capital cases, basically misconstrues the distinction be-

tween the factfinding function of determining the degree of

crime of which the defendant is guilty performed by the

jury, and the sentencing function which is to be performed

ee ee ee “~.% oe ee weet we see . >>» Fos ve

ws +8 - “+ ~ - - O-J

the Idaho Constitution does not require the participation of

a jury in the sentencing process in a capital case.

Appellant also asserts that I.C. § 19-2515(£) (8) is,

unconstitutionally vague. Again, somewhat the same argument

was made by the appellant in State v. Creech, supra. In

Creech, the appellant argued that I.C. § 19-2515(f)(8) was

unconstitutionally vague. In that case, this Court construed

"propensity" in such a way as to narrow its meaning so that

it could not possibly be interpreted to apply to every

murder coming before a state trial court.

"We would construe ‘propensity’ to exclude, for

example, a perscn who has no inclination to kill

but in an episode of rage, such as during an

emotional family or lover's quarrel, commits the

offense of murder. We would doubt that most of

those convicted of murder would again commit

murder, and rather we construe the ‘propensity’

language to specify that person who is a willing,

pre-disposed killer, a killer wio tends toward

destroying the life of another, one who kills with

less than the normal amount of provocation. We

would hold that propensity assumes a proclivity, a

susceptibility, and even an affinity toward commit-

ting the act of murder." State v. Creech, supra

at R

Thus, appellant can no longer claim that (f)(8) is

unconstitutionaliy vague because of this limiting construction

placed on it by this Court. See Godfrey v. Georgia, 446

U.S. 420, 100 S.Ct. 1759 (1989). However, he does attempt

to make a somewhat different argument concerning the constitu-

tionality of this section. He argues that the presence of

the word "probably" allows a trial judge to find an aggravating

circumstance based on less than a reasonable doubt, in

contravention of our opinion in State v. Osborn, 102 Idaho

405, 631 P.2d 187 (1981).

I1.C. § 19-2515(£)(8) reads:

«Ke

19-2515. INQUIRY INTO MITIGATING OR AGGRAVATING

CIRCUMSTANCES--SENTENCE IN CAPITAL CASES--

STATUTORY AGGRAVATING CIRCUMSTANCES --JUDICIAL

FINDINGS.--...

(f£) The following are statutory aggravating

circumstances, at least one (1) of which must be

found to exist beyond a reasonable doubt before a

sentence of death can be imposed:

(8) The defendant, by prior conduct or conduct in

the commission of the murder at hand, has exhibited

a propensity to commit murder which will probably

cerstitute a continuing threat to society."

or 2 triai judge to rely on (£)(&) as an aggravating

circumstance in the imposition of the death penaity, he must

find beyond a reasonable doubt, that the defendant exhibits

such propensity.

Reading (£)(8) in its entirety, we fail to see how it

can be reasonubly argued that the statute could be interpreted

to require only a finding based on the preponderance of the

evidence, rather than beyond a reasonable doubt, as it

expressly states. Furthermore, the trial judge expressly

stated that he found the circumstance to exist beyond a

reasonable doubt. He also noted:

"The defendant, both by prior conduct and conduct

in the commission of the murder at hand. has ex-

hibited a propensity te commit murder which will

probably constitute a continuing threat to society.

It is impossible for this court to believe that

. society will ever be safe while this defendant re-

mains mobile and active."

The interpretation that appellant urges is contrary to

the clear wording of the statute. I.C. § 19-2515(f) (8)

merely requires a finding, beyond a reasonable doubt, of the

existence within a defendant of a propensity to commit

murder likely to cause a threat to society. Thus read,

(£)(8) is not unconstitutionally vague.

Appellant also argues that I.C. § 19-2515(£)(5) and

(£) (6) are unconstitutionally vague. In State v. Osborn,

vie

supra, and State v. Creech, supra, we considered these

aryuments and placed limiting constructions oan these sect Pons

so as to eliminate any possible vagueness. We need not

consider those arguments again here.

Appellant also argues that I.C. § 19-2515(d) is unconsti-

tutional because it does not require the trial judge to find

that the aggravating circumstances outweigh the mitigating

circumstances beyond a reasonable doubt. Again, a similar

argument was considered and rejected in State v. Creech,

supra. Appellant confuses the standard applicable to proof

of an aggravating circumstance with the weighing process

that must occur whenever any sentence is imposed. As noted

by the Eleventh Circuit recently:

"{Appeliant's argument] ... seriously confuses

proof of facts and the weighing of facts in senten-

cing. While the existence of an aggravating or

mitigating circumstance is a fact susceptible to

proof under a reasonable doubt or preponderance

standard, ... the relative weight is not. The

process of weighing circumstances is a matter for

judge and jury, and, unlike facts, is not susceptible

to proof by either party." Ford v. Strickland,

676 F.2d 804 (11th Cir. 1983).

The "beyond a reasonable doubt" standard applies to the

existence of aggravating circumstances, not to the process

of weighing them against the mitigating circumstances, which

must occur before sentence is imposed. Gray v. Lucas, 677

F.2d 1086 (Sth Cir. 1982), reh. den. 685 F.2d 139 (1982).

See Zant v. Stephens, | U.S. (Slip Op. released

June 22, 1983) (where United States Supreme Court upheld the

Georgia sentencing scheme which provided that, by a finding

3. We note that in State v. Wood, 648 P.2d 71 (Utah 1982), the

Utah Supreme Court held that the trial judge must find aggravating

circumstances outweigh the mitigating circumstances beyond a reason-

able doubt. However, they so ruled in interpreting their own

statutory scheme and not on the basis of federal or state constitu-

tional principles. Id. at 82. We note that Utah's capital sentencing

scheme is somewhat different from Idaho's. We find the reasoning

in that case to be unpersuasive.

of a statutory aggravating circumstance beyond a reasonable

doubt, the defendant was eligible for the death penalty, and

theretere all ev dalernees baa Cav deer ctemnsa bales tiecal, capeel G0 tea wl Olytnn

sentencer's discretion to balance aggravating and mitigating

circumstances, not pursuant to any special standard. Slip

Op. pp. 10-11); Barclay v. Florida, supra (where Florida

statute provided for weighing statutory aggravating circum-

stances against mitigating circumstances not purstant to any

special standard for the weighing process, statutory «scheme

approved). Appellant's argument has no merit.

Appellant also makes several assertions concerning the

findings and conclusions of the trial court. He asserts

that the court relied on non-statutory aggravating circum-

stances,” that some of the findings were unsupported by the

evidence, that some of the findings are inconsistent with

the jury's verdict, and that some are incomplete under State

v. Osborn, supra. We will consider each of these assertions

separately.

Appellant argues that the court erred in its consideration

of non-statutory aggravating circumstances. It appears that

the trial court used the same type of format in its written

sentencing decision as that used in State v. Creech, supra.

The findings of the court are divided into sections, with

the individual sections labeled differently:

"4. Facts and Argument Found in Mitigation.

"5S. Facts and Argument Found in Aggravation.

4. 1.C. § 19-2515(f£) sets out the statutory aggravating circum-

stances to be considered by a trial judge in sentencing.

«10-

Alo

"6. Statutory Aggravating Circumstances Found

Under Section 19-2515(f), Idaho Code. These

aggravating circumstances are all found by this

court to be beyond a reasonable doubt."

Appellant argues that a trial court's consideration of non-

statutory aggravating circumstances creates both statutory

and constitutional problems. We previously ruled in Creech

that a trial court is not limited as to the aggravating

circumstances it may consider. It is also clear from our

opinions in both Creech and Osborn, supra, that a trial

court, while it may consider all relevant circumstances in a

particular case, must find at least one statutory aggravating

circumstance to exist beyond a reasonable doubt. This

satisfies the constitutional requirement of notice. Since

the trial court expressly found four of the statutory aggra-

vating circumstances to exist beyond a reasonable doubt, the

sentence was not imposed in viclation of any of appellant's

constitutional rights.

Appellant cites two of the trial court's findings and

argues that they are not supported by the evidence. The al-

legedly objectionable findings are:

a. ... The defendant dominates his co-

defendant, and is primarily responsible for all

that occurred.

"d. The defendant, both by prior conduct and con-

duct in the commission of the murder at hand, has

exhibited a propensity to commit murder which will

probably constitute a continuing threat to society."

The evidence before the trial court was more than sufficient

to sustain both of these findings. An in-depth interview of

appellant's accomplice was conducted, and was included in

atte

All

the presentence report. It contains references to the

relationship between the two, lending support to finding 5a.

Finding 6d is supported by evidence of the brutal murder

committed by this defendant, by his lack of remorse, willing-

ness to participate in the crime, and by testimony of his

prior offer to do violence to and, inferentially, to kill

another person other than Dixie Wilson. Because these

findings are supported by the evidence, we will not disturb

them.

The jury instructions given in the present case, taken

from the information, set forth two alternatives for the

jury. In Count II, the state alleged that appellant should

be found guilty of first degree murder because the crime was

committed with premeditation and malice aforethought. Count

III alleged that appellant was guilty of first degree murder

because the crime was committed during the course of a

robbery. The jury, in returning its verdict, acquitted

appellant of Count II and convicted him of Count III.

Appellant now alleges that several of the district court's

findings are inconsistent with the jury's verdict. The

findings cited by appellant are:

"That the defendant knew the victim ... and realized

that she could identify him if she were left alive

“after this robbery.

"He apparently was mentally cool and collected,

with the murder being an intentional rational act.

"After the robbery commenced the defendant realized

the victim could identify him if she were left

alive after this robbery."

The findings of the trial judge in sentencing are based not

only on what he has heard during the trial, but also on the

information he gathers from many other sources. A trial

«32.

court's duty to tailor a sentence to an individual defendant

necessitates access to a wide range of information about

that defendant. State v. Johnson, 101 Idaho 581, 618 P.2d

759 (1980). This is especially true in cases involving the

possible imposition of the death penalty, wherein the United

States Supreme Court requires that the sentence be determined

according to the requirements of each individual case. See

Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978

(1976). The trial judge in the present case received an

abundance of information during the sentencing portion of

defendant's trial concerning the character of the defendant

and his possible inclination. The trial judge thus issued

his findings based on his access to this broad range of

information. The jury did not have access to the same

emount of information in returning its verdict. Thus, the

findings of the jury, and the findings of the trial judge,

are not inconsistent; rather, they are based on different

ranges of information. We see no error in the trial judge's

findings on this issue.

dD.

Appellant also argues that the findings of the district

judge were incomplete and inconsistent in light of our

opinion in State v. Osborn, supra. In Osborn, we placed

limiting constructfons on I.C. § 19-2515(£)(5) and -(6).

Appellant argues that the trial judge's findings do not

affirmatively show that he used those limiting constructions

in making his findings on those specific circumstances.

Appellant seems to argue that a trial judge should be required

to specifically set forth findings on the limiting construc-

tions themselves. Trial judges are required by I.C. § 19-

2515 to find at least one statutory aggravating circumstance

beyond a reasonable doubt. The limiting constructions

it.

4/3

placed upon these statutory circumstances in Osborn were set

forth to provide a definitional aid to trial judges attempting

to apply the circumstances to the particular facts of the

case they are considering. There is no directive in either

the statute or Osborn requiring a trial court to set out the

specific language used in Osborn before this Court will

uphold that court's findings. The findings made by the

trial court in this case sufficiently comply with the standards

set out in I.C. § 19-2515(f), State v. Osborn, supra, and

State v. Creech, supra.

Ill

Appellant asserts error in the inclusion in the presen-

tence report of a psychiatric evaluation. This evaluation,

drawn up by Dr. John Stoner, resulted from a pretrial meeting

between Dr. Stoner and appellant, arranged by appellant's

counsel, during the investigation of the propriety of a

defense based on mental disease or defect. The evaluation

was paid for by appellant's family, and never offered in

evidence during trial. Appellant argues that the evaluation

formed the basis of the presentence investigator's report,

but was used in violation of appellant's attorney/client

privilege, his psychologist/patient privilege, and his

fifth, sixth and fourteenth amendment rights. Without

deciding whether use of such wieanbich would violate any of

appellant's rights, we note that upon motion by defense

counsel the trial judge expressly refused to consider the

evaluation in his sentencing decision, and references to the

evaluation were stricken from the presentence report. The

record shows that the trial judge made the following comments:

"And the Court, for the record, has had all the

reports sanitized by recovering this psychiatry

report, so none of the three of us have read these

particular items.

~14-

AMY

"I will order thac the presentence report remain

sanitized as done so that the Court and both

counsel are not aware of the report of Dr. Stoner.

And I will not take the report of Dr. Stoner into

account in the course of this sentencing. Motion

granted."

Thus, the trial court specifically said that he had not

read the report or references to it, and specifically declined

to take the report into consideration in sentencing. We

will not presume error when the record, on its face, militates

against such a conclusion. Appellant's argument, that the

presentence investigator took the report into consideration

in preparing the presentence report, and that it affected

the report and thus influenced the sentencing judge, is

without merit.

Appellant also argues that he was improperly convicted

of the crime of possession of a firearm during the commission

of a felony, and that a death penalty entered in conjunction

with such a conviction cannot stand where the possession

conviction was obtained based on instructions which did not

comport with this Court's decision in State v. Thompson, 101

Idaho 430, 614 P.2d 970 (1980).

In Thompson, which was released prior to appellant's

trial, we ruled that a person could not be convicted under

I.C. § 19-2520, the possession statute, umless it is shown

that the defendant is the person who actually used the gun.

The statute cannot be used to convict a person who was

merely an aider or abettor. Appellant urges that, upon

proper instructions, the jury could have found that he was

merely an aider or abettor, and never actually possessed the

weapon.

The trial judge gave the following instruction concerning

the possession charge:

nSSu

"If you find the defendant guilty of any of these

crimes it then will become your duty to determine

whether or not, in that crime, the defendant

carried, displayed, used, threatened, or attempted

to use a firearm or other deadly weapon while com-

mitting the crime."

We feel that this instruction adequately informed the

jury that, to convict the appellant, he must have "carried,

displayed, used, threatened, or attempted to use" a firearm

in the commission of a felony. There was sufficient competent

evidence upon which to base a finding of actual possession

by the appellant. The instruction being adequate, we will

not disturb the conviction on that charge.

Pursuant to our independent review in death penalty

cases, I.C. § 19-2827 requires us to conduct a review of the

record to determine if this particular death sentence resulted

from any arbitrary factors, such as passion or prejudice.

That section also requires us to determine if the sentence

imposed in this particular case is excessive or dispropor-

tionate to sentences imposed in similar cases. Our independent

review of this case does not reveal any indication of existence

of arbitrary factors. Our review of similar cases involving

the death penalty, while necessarily limited by the lack of

such cases, as noted in State v. Creech, supra, does not

reveal the presence of any particular excessiveness or dis-

proportionality in this particular case. The heinous nature

of the crime committed in this case, and the nature and

character of the defendant, makes the imposition of the

death penalty in this case both proportionate and just.

The judgment of conviction and seitence imposed are

affirmed.

DONALDSON, CJ., and SHEPARD, J., concur.

Hie

Alb

BISTLINE, J., dissenting.

In State v. Creech, _— Idaho _, __ P.2d

(Opinion No. 74, Sup. Ct. Nos. 14480 & 15000, petition for

rehearing filed May 23, 1983), I expressed a strong concern

with a majority opinion which refused to discuss the view of

Justice Huntley who in dissent pointed out that our Idaho

Constitution guarantees that no person shall be executed ex-

cept on direction of a jury. In today's opinion the same

majority, now deigning to discuss that issue, and completely

ignoring that written by Justice Huntley and by myself in

Creech, rationalizes around the research which we there pre-

sented by noting the absurdity that it was the judge who was

the sentencer where the jury convicted an accused of second

degree murder--but at the same time facetiously conceding

"that the jury's decision had an impact on the sentence which

was imposed.'' This is pure sophistry at its best. The jury,

if it convicted the accused of first degree murder thereby

sent the accused to the gallows. That is an impact indeed. As

stated in my Creech dissent:

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

the defendant was charged with murder in the

first degree. The jury, knowing that a first

degree conviction required execution, recom-

mended the mercy of the court.

"'We the jurors in the above entitled cause

find the Deft guilty as charged in the

Indictment and recommend him to the mercy

of the court.

L. Jackson

Foreman of Jury'"'

It cannot in good conscience be argued that from 1869 until

Furman it was not the jury which made the life or death deci-

sion. Any lingering doubt as to the intention of the

legislature should be dispelled by simply observing that fol-

lowing the 1911 Amendment to I1.C. § 18-4004! the courts of

lAs amended in section 18-4004, the legislature showed its

understanding that the jury had been and would continue as the

Idaho, including this Supreme Court, continued to acknowledge

the jury's function as sentencer, as was carefully documented

in my dissenting opinion in Creech wherein were set forth

verbatim the jury verdicts in Hoagland, Redding, VanVlack,

Golden, Owen, Clokey, Gonzales, and Buckley--which latter was

the last first degree murder to be reviewed in this Court

under the law as it existed prior to Furman's advent.

Regrettably one must conclude that the author of to-

day's opinion for the Court has yet to read my Creech dissent.

Nothing in today's majority opinion supports its bald conclu-

sion "that Art. 1, section 7, of the Idaho Constitution does

not require the participation of a jury in the sentencing

process in a capital case." The best that can be said for the

majority opinion is chat it does recognize that where the jury

convicts of second degree murder, "'no death penalty could be

imposed," but this is said to be an incidental effect. Some

may consider it a deplorable state of affairs that in a matter

of such grave moment the majority does not even attempt to

comment upon the proceedings of the Constitutional Convention

and the remarks of Mr. Heyburn, Mr. Claggett, and Mr. Ainslie

in the drafting of Art. 1, section 7--which was thereafter

adopted by the people. Instead the majority digresses into

the wholly irrelevantse field of the judge's discretion where

the jury's verdict was to convict of murder in the _ second

sentencer:

"Punishment for murder.--Every person guilty

of murder in the first degree shall suffer

death or be punished by imprisonment in the

state prison for life, and the jury may de-

cide which punishment shall be inflicted.

Every person guilty of murder in the second

degree is punishable by imprisonment in the

state prison not less than ten years and the

imprisonment may extend to life."

—' 2

AIG

With equal facility the majority facilely avoids dis-

cussing the teaching of State v. Miles, 43 Idaho 46, 248 P.

442 (1926), or attempting to explain away the words and wisdom

of Justice Ailshie in In re Prout, 12 Idaho 494, 86 P. 275

(1906). Instead the majority opinion speaks of the sentencing

discretion in, of all things, burglary cases. It gives us the

remarkable pronouncement that the jury's determination of

whether the defendant is guilty of first or second degree

murder, or perhaps the included offense of petit larceny,

"will have a substantial impact upon the sentence... ," and

that such "does not mean that under our Constitution a defen-

' No one

dant is entitled to have a jury impose the sentence.’

has ever contended that it did in other than murder cases; the

statement of the majority only serves to show no knowledge of

the documentation of the Creech dissenting opinions, at the

best, or, at the worst, a complete disregard for the irrefut-

able teaching of that documentation. In an ordinary case this

would be thought regrettable. In a case where we review the

imposition of a death sentence, it may well be regarded as

unpardonable.

Most disturbing is the knowledge that prior to Furman

the capital death sentencing procedures in Idaho were within a

small percentage of being those which the Woodson Court would

later prescribe. Basically all that was needed, prior to

Furman, was a bifurcation so that a person accused of first

degree murder would not be prejudiced by attempting at a sia-

gle trial to prove both that he did not deserve the death

penalty and that he was not guilty of first degree murder--a

Catch 22 situation if ever there was one. For example, see

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

v. Owens, 73 Idaho 394, 253 P.2d 394 (1953), both discussed in

my Creech dissent. Those cases, and others, make it clear

- 19 -

that this Court earlier, and absent legislative involvement,

recognized that the trial courts should properly instruct the

jury in a capital case to the end that the jury did not arbi-

trarily or capriciously invoke the penalty of death.

Following Woodson the legislature set guidelines to

follow, and, unfortunately believing (as the Statement of Pur-

pose to the dein 1977 amendment shows, set out in the

Creech dissenting opinion of Justice Huntley) that the Supreme

Court of the United States had barred juries from continuing

as sentencing authorities, made those guidelines for the bene-

fit of judges. Nonetheless, the guidelines are there, and all

that is required now, primarily, is for this Court to legiti-

mize the 1977 Death Penalty Act by declaring that a sentence

of death will constitutionally be imposed as the judgment of

twelve jurors--in whose selection the defendant played a large

part--instead of being imposed by a single individual who

holds the office of district judge. Alternatively, if this

Court fails to follow that route, which simply encompasses a

holding that wherever in I.C. § 19-2515 the word "court" ap-

pears, “court'' shall be construed to mean the jury and not the

judge .2 To do so would comport with an earlier court's under-

standing that '"[i]n all cases triable by a jury, the court is

made up of the judge and the jury." State v. Ramirez, 34

Idaho 623, 203 P. 279 (1921) (not to be confused with State v.

Ramirez, 33 Idaho 803, 199 P. 376 (1921)). As to the problem

which I just mentioned in footnote 2, the Ramirez Court also

noted that "[t]he words 'judge' and ‘court’ are frequently

used as convertible terms . .. ."" 34 Idaho at 634. This

Court today would do a service to its people were it to thus

put a saving gloss on the 1977 legislation. My own view,

21 am not unaware of the use of the words "Judge" and "trial

judge" in I.C. section 19-2827(c)(2) and (e)(2).

« 20 «

420

however, is that this Court will not do so--as evidenced by

the illogical reasoning of the three-member majority which

brings it to the conclusion that our Idaho Constitution does

not give a capital defendant the right to have his fate de-

cided by a jury. In the long-run it would be preferable if

the legislature attended to the matter.3 Meanwhile, one may be

certain, a bare majority of this Court will continue to uphold

judge-imposed death sentences.

Another defect in the present scheme for capital sen-

tencing is found in I.C. § 19-2827, mentioned in my separate

opinion in State v. Osborn, 104 Idaho _, _—sSiPw2d ~——_s (1983)

(Supreme Court No. 14333), wherein I pointed out, as applica-

ble herein reviewing § 19-2827:

"(T)here is a defect in I.C. § 19-2827 (g)

wherein and whereunder it is only required

that ‘The supreme court shall collect and

preserve the records of all cases in which

the penalty of death was imposed from and

including the year 1975.'

"Collecting such records is not a difficult

task, because of the automatic review provi-

sicns of 1I.C. § 19-2827(a). Preservation is

also no problem, because the Court does keep

one copy of ell appellate review proceedings.

My own conclusion is that the drafter had in

mind a separate collection of death penalty

findings and conclusions in all cases, read-

ily available on request to district courts,

prosecutors, and defense counsel. Such a

collection, which we do not presently main-

tain as such, will indeed be a helpful tool,

but I see it as virtually meaningless unless

the collection includes all sentencing hear-

ings held following a conviction of first

degree murder. Only in this manner will this

Court in making its review be able to deter-

mine ‘whether the sentence of death is

excessive or disproportionate to the penalty

imposed in similar cases, considering both

the crime and the defendant.' T.C.

19-2827 (c)(3).2 Only in this manner will

sentencing authorities have established

guidelines as to the state-wide norm in in-

posing the penalty for murder in the first

3In his Creech opinion, Justice Huntley urged the legislature

"to amend the statutes to provide for proper jury participati-

on in order that future capital punishment cases will not be

subject to this serious defect." Hopefully, the 1984 legisla-

ture will respond when it convenes in January.

- 21 -

A2/

degree. Only in this manner can prosecuting

attorneys and defense attorneys be adequately

informed as to the pulse of Idaho's people--

from among whom come the jurors who decide

guilt or innocence, and who constitutionally

should even now be determining the sentence

to be imposed. When we have provided for a

proper collection, and when we have required

jury sentencing--both of which are within the

Court's authority to provide for--thus put-

ting a saving gloss upon the~ entire

procedure--the entire citizenry may profit

from a sentencing procedure which is consti-

tutionally sound.

2The tenor of the statute is such that I do

not hesitate to express a belief that the

drafter thereof intended the collection to

include all dispositions of first degree

murder convictions."

The majority in today's opinion properly states that § 19-2827

requires of our review that we determine whether "the sentence

imposed in this case is excessive or disproportionate to sen-

tence imposed in similar cases.'' This is as it should be.

But, because of the defect in the statute above described, the

majority wholly ignores the facts and circumstances in the

extremely similar case of State v. Major, 104 Idaho .

P.2d (1983). Major too involved a first degree murder

conviction, and there the weapon was a knife only--which is

considered by many more brutal and sadistic than being shot to

death. The district judge in Major made the findings in

aggravation, and mitigation which are statutorily required:

oe Aggravation The court finds, from the

evidence, that a heinous, atrocious attack

occurred upon a human being. As the state

proved at the trial, and reiterated at the

hearing, the killing of Tony Mesa involved

injuries inflicted prior to his death, then

the death injury, and brutal aggravation of

the death wound. The Court finds no possible

justification for the nature of the attack,

and finds no evidence that the victim was

armed or able to defend himself in any way.

"The Court further finds that the accused

has a criminal record which extends back to

1962, and involves at least seventeen narcot-

ics offenses. The Court further finds that,

within ten years prior to this offense, the

accused was convicted of a felony, second

degree burglary. The defendant himself ad-

mitted commission of a felony, and _ the

« 92 «

A22r

pre-sentence report shows the conviction

occurred in June, 1975, in San Bernardino

County, California. The Court also finds

that the accused has twice been convicted of

some sort of assault on another person.

6. Statutory Aggravating Circumstances The

court finds beyond a reasonable doubt that

two of the statutory circumstances set forth

in Idaho Code, § 19-2515 exist. The murder

was, in the opinion of the court, ‘especially

heinous, atrocious or cruel, manifesting

exceptional depravity.’ The testimony of the

autopsy pathologist graphically depicted the

brutal, destructive knife attacks which were

inflicted upon the victim. The nature of the

wounds made it apparent that the attack vir-

tually amounted to a series of torturing

wounds which finally culminated in the mas-

sive cutting of the victim's throat. The

evidence made it clear that after inflicting

the throat wound, the assailant then made

ripping motions with the knife which were

simply mutilating in nature. There was enough

bleeding from the early wounds to make it

clear that the victim was seriously injured

and no doubt in great pain before the final,

brutal attack was made. The nature of the

attack, taken in stages as it was, also

clearly, and beyond a reasonable doubt, shows

that the defendant, at the time of the at-

tack, ‘exhibited utter disregard for human

life.' The Court therefore finds, that the

circumstances set forth in Idaho Code 19-2515

(£) (5) and (6) have been established beyond

a reasonable doubt."

R., pp- 150-51.

Major is exactly one of the "similar cases" referred

to in I.C. § 19-2827(c)(3), and yet the majority of the Court

in making their review does not consider it. How, one must

ask, can a reviewing court determine whether a sentence of

death “is disproportionate to the penalty imposed in similar

cases" if it does not collect, preserve and refer to all capi-

tal cases? The majority apparently sees the — in a

different light. The statute, however, is clear that "the

penalty involved in similar cases'' may be the death penalty,

or it may be a life sentence. Again, no argument to the con-

trary can in good conscience be made. Nor should it. Should

the members of this Court, regardless of how § 19-2817 is

» 33 »

17.3

read, shut their eyes to the penalty that the stabbing, slash-

ing murderer in Major received? It was not a sentence of

death:

"7. Why The Death Penalty Is Not Being In-

posed This Court is of the opinfon that the

statutes providing for imposition of the

death penalty, and for imposition of the

death penalty by lethal injection are consti-

tutional,.and are necessary in our society.

And, even though the Court finds the exis-

tence of two of the statutory aggravating

circumstances in this case, the death penalty

is not here being imposed. The line which

must be crossed before the extreme penalty is

imposed is a fine one, and ultimately the

decision which the Court must make is a very

subjective one. Here, the Court has deter-

mined that the victim was not an innocent

member of society whose death grew out of no

criminal conduct on his part. The court

truly believes that the victim was a drug

supplier who for some reason had cut off the

supply to the accused. During the negotia-

tions to resume that supply line, something

went wrong, and the violence of the drug

sub-culture erupted. Every person who lives

in that sub-culture risks the same violent

end which befell the victim here. The Court

believes that this accused would again repeat

his actions if confronted with the same set

of circumstances, and thus is a danger to

other human beings. But the Court also be-

lieves that the danger to innocent members of

society can be avoided by incarcerating the

defendant for the rest of his life. And, the

sentence which the Court imposes today will

accomplish such incarceration if allowed to

run its proper length.

"THEREFORE the death penalty should not be

imposed on the defendant for the capital

offense of which he was convicted."

R., p- 152.

This is not any criticism of the trial court's conclusion in

Major. Nor is there intended any criticism of the trial

court's conclusion in Lacey Sivak's case. Nor is it to point

out that the two cases standing side by side are difficult of

reconciliation. It is to point out, as I intimated in compar-

ing LePage with Osborn, as I did in Osborn II, that this

Court, not just a minority thereof, needs to do its part in

completing the death sentencing procedures so as to achieve

just and impartial death sentences which conform with notions

of constitutionality.

There is, of course, yet another first degree murder

case which bears even a stronger similarity to Sivak than

Major. That case is State v. Bainbridge, Ne. 14544. It is in-

conceivable that the Court today reviews the death penalty

imposed upon Sivak without any consideration of the penalty

imposed upon Bainbridge. The majority opinion, while it gives

mention of Sivak's co-defendant, Bainbridge, in connection

with the trial court's § 19-2515 findings of aggravating and

mitigating factors, Part II B of the majority opinion, wholly

and, perhaps deliberately, avoids any mention of the penalty

meted out to Bainbridge or to the judge's § 19-2515 findings

in Bainbridge. Keeping in mind that the district judge who

presided at Bainbridge's trial and at his sentencing was not

the same district judge who presided at Sivak's trial (a point

to which I will later return, time permitting), and firmly

convinced that one sentence can not be reviewed without con-

sideration of the other, following is the disposition made at

Bainbridge's sentencing:

"The above defendant having been found guilty by

a jury of the criminal offense of First Degree Mur-

der which under the law authorizes the imposition of

the death penalty; and the court having ordered a

presentence investigation of the defendant and

thereafter held a sentencing hearing for the purpose

of hearing all relevant evidence and argument of

counsel in aggravation and mitigation of the of-

fense;

NOW THEREFORE the court hereby makes the follow-

ing findings:

1. Conviction. That the defendant while repre-

sented by court appointed counsel was found guilty

of the offense of First Degree Murder by jury ver-

dict.

2. Presentence Report.- That a _ presentence

report was prepared by order of the court and a copy

delivered to the defendant or his counsel at least

—

A2s-

seven (7) days prior to the sentencing hearing pur-

suant to section 19-2515, Idaho Code, and the Idaho

Criminal Rules.

3. Sentencing Hearing.- That a sentencing hear-

ing was held on March 5, 1982, pursuant to notice to

counsel for the defendant; and that at said hearing,

in the presence of the defendant, the court heard

relevant evidence in aggravation and mitigation of

the offense and arguments of counsel.

4. Facts and argument found in mitigation.

(a) Defendant has no previous conviction for

the crime of murder, or any crime of violence. His

prior offenses are property related.

(b) Defendant has demonstrated a propensity to

being manipulated and used by other criminals; and

although he participated in these crimes, he would

be unlikely to initiate or perpetrate such crimes on

his own.

encouragement of the co-defendant to do so, defen-

dant did not himself inflict any death threatening

wounds on the victin.

5. Facts and Argument Found in Aggravation.

(a) The defendant Bainbridge was in agreement

with the co-defendant Sivak relative to the purpose

and intent of the crimes of robbery and murder as

committed here.

(b) The defendant, along with his co-defendant,

acted in utter disregard of human life, knowing the

victim Dixie Wilson would have to die to prevent her

identification of the persons who robbed her.

cruel, atrocious and heinous manner, manifesting

exceptional depravity; and this defendant, by his

willing presence, and participation in the robbery,

aided, abetted and encouraged the commission of the

murder; and made no effort to discourage or dissuade

such co-defendant in the means or manner of its

execution.

(d) Although only one person was murdered, the

circumstances attending such murder created a threat

to the lives of others, including other employees of

Baird Oil Company, customers of the station robbed,

and other potential witnesses of the robbery who

might otherwise happen to be in its vicinity.

(e) Defendant has been previously convicted of

two felony crimes.

6. Statutory Aggravating Circumstances Found

Under Section 19-2515(£), Idaho Code.

(a) The defendant knowingly created a great

risk of death to many persons, for the reasons ex-

plained in paragraph 5(a), (b) and (d) above.

-—

A2lé

(b) The murder was especially heinous, atro-

cious and cruel, manifesting exceptional depravity,

as discussed in paragraph 5(c) above.

of the robbery and murder here, the defendant exhib-

ited utter disregard for human life, as discussed in

paragraph 5(c) above.

(d) The murder was one defined as murder of the

first degree by 18-4003(d), Idaho Code, and was

accomplished by the specific intent to cause the

death of a human being as discussed in paragraph

S(a) above.

7. Reasons why death penalty was not imposed.

I find that the mitigating circumstances, par-

ticularly that defendant did not himself deliver any

death threatening blows to the victim, outweigh the

gravity of the aggravating circumstances here so as

to make unjust the imposition of the death penalty

on this defendant.

Conclusion

That the death penalty should not be imposed on

the defendant for the capital offense of which he

was convicted."

It is difficult, if not impossible, to reconcile the

two sentences. One murderer dies; the other lives. This is a

classic case of the disparity in sentencing which produced

Furman and in turn led to the second series of cases four

years later wherein the Supreme Court declared that Furman had

been misunderstood, while Idaho in the interim destroyed death

penalty sentencing procedures which would today be entirely

valid according to my own reading of the "threshold theory"

which the Supreme Court now retreats to in Zant v. Stephens,

U.8. (June, 1983). I am not critical of Justice

Stephens' opinion--which was expected. At the same time I

agree with the view of Justice Marshall that "the States may

as well be permitted to re-enact the statutes that were on the

books before Furman." U.S. at - For, as I have stated

and written even prior to receiving Zant, Idaho's procedures

in capital sentencing did not lead to arbitrary and capricious

imposition of death sentences. Well instructed juries would

o 2? -

427

hear evidence offered in mitigation and aggravation, and

would decide between life or death. Bifurcation of the guilt

phase from the penalty phase would serve to avoid undue preju-

dice to a defendant charged with first degree murder.

In Godfrey v. Georgia, 446 U.S. 420, 427 (1980), the

Supreme Court reaffirmed that "the penalty of death may not be

imposed under sentencing procedures that create a substantial

risk that the punishment will be inflicted in an arbitrary and

capricious fashion," and at 428, "'if a State wishes to au-

thorize capital punishment it has Aa constitutional

responsibility to tailor and apply its law in a manner that

avoids the arbitrary and capricious infliction of the death

penalty.'"

Constitutionality is not merely adhering to that

which is spelled out in the Constitution, Art. 1, section 7,

but includes notions of fair trial and due process. This

brings me to again join Justice Huntley in decrying, as we did

in Creech, the wholesale use of a presentence investigator's

report. Nothing is to ve gained by repeating that which was

written in dissent in Creech. It will, however, lift the

spirits of those who believe in a fair trial and due process

to be told that in Major the district judge, although he ob-

tained and delivered te defense counsel a pre-sentence report,

at the sentencing hearing, "heard relevant evidence in aggra-

vation and mitigation of the offense par arguments of

counsel."' There is contained in the Major findings nothing to

intimate a belief that a trial judge is at liberty to use a

pre-sentence report as admissible evidence in reaching the

determination that a convicted defendant will suffer death.

This, too, may pass if that district judge, and all district

‘judges, abide by the declaration of today's majority that

there was no wrong in giving consideration to an ex parte in-

— .

42S

terview of Sivak's accomplice--which was included in the

presentence report, and by the majority is said to support

finding 5(a).

It may be that I do not fully understand what is

meant by "the arbitrary and capricious infliction of the death

penalty."' But, if I have not seen it exemplified in comparing

the penalty Sivak may pay to the penalty Bainbridge will pay,

then for certain I do not know what the phrase means.

Two men, Sivak and Bainbridge, were found guilty of

first degree murder which was committed in the course of a

planned robbery of a gas station attendant who was acquainted

with both and who could have identified both individuals. The

attendant, a woman but a few years older than the defendants,

was stabbed twenty times and shot three times--a brutal murder

if ever there was one. The two were jointly charged, as they

should have been, given a preliminary hearing, and held to

answer. A single information was filed charging them jointly

with armed robbery, premeditated murder, and murder in commit-

ting a felony of robbery, as they should have been charged.

Neither made a motion for separate trial, apparently being

unable to.show the prejudice required by our case law, and

they should have been tried together .4 But they were not so

tried. One. defendant, Bainbridgt, filed an affidavit of dis-

qualification against | Judge Newhouse, who thereupon

disqualified himself as to Bainbridge only, for which there

may or may not be precedent in some other jurisdiction. In

any event, Judge Newhouse assigned Bainbridge's trial to Judge

Rowett. In that strange manner the co-defendants were not

Huskinson, 71 Idaho 82, 226 P.2d 779 (1951); State v.

Robinson, 71 Idaho 82, 226 P.2d 779 (1951); State v. Oldhan,

92 Idaho 124, 438 P.2d 275 (1968). See I.C. § 19-2106, as

modified by I.C.R. 14, requiring a showing of prejudice to

avoid being jointly tried.

» 2 «

129

tried together as they should have been for the crimes the two

of them committed, but the results of the guilt trials came

out the same, as both were convicted of first degree murder.

There is little doubt in my mind, after reviewing the facts

and circumstances of the crimes, that had they been tried

jointly and had a jury been the sentencer both would have

suffered the same fate. But they were not tried together for

their jointly committed crimes as they should have been, and a

jury was not the sentencer as should have been the case. As

it stands now, one dies and one lives. If this is not dispa-

rate sentencing, then I do not expect to ever see it.

The two co-defendants were not only bungling crimi-

nals and inept, and thus brutal murderers, but also not loyal

to each other. Sivak, who testified at his trial, claimed

that Bainbridge did all of the robbing and murdering while he,

Sivak, was merely in the company of Bainbridge at a poor time.

Bainbridge, who did not testify at his trial, gave taped

statements to the investigating officers which, on his turn to

talk, blamed the entire criminal activity on Sivak, Bain-

bridge by misadventure merely happening to be with him at the

wrong time and place, as it turned out. There were no other

witnesses to the crime of murder than these two defendants.

The two different juries convicted both of first degree murder

and robbery, Sivak testifying to his innocence, Bainbridge not

taking the stand. Neither testified at the other's trial.

Notwithstanding like jury verdicts the district judges in-

volved imposed the drastically different sentences for the

same crime of murder. As acknowledged in the majority opinion

in Part II B, Judge Newhouse in Sivak's case made a § 19-2515

finding that "[t]he defendant dominates his co-defendant and

is primarily responsible for all that occurred." The major-

ity, notwithstanding the provisions of I.C. § 19-2827, makes

» 2 «

430

no mention of the penalty imposed in Bainbridge, and strangely

does not mention the complementing findings of Judge Rowett in

Bainbridge's case that "'[a]lthough he had the opportunity and

the encouragement of the co-defendant to do so, defendant did

not himself inflict any death threatening wounds on the vic-

tim," and "that defendant did not himself deliver any death

threatening blows to the victim a

Now, a large difficulty with these two cases and the

disparity in penalties imposed, is an inability to see how it

would make any genuine difference which of the two defendants

delivered the more telling blows, knife wounds, or _ shots

against and into their helpless victim. The cold inescapable

fact is that they murdered her, and that the two district

judges, neither of whom ever heard Bainbridge testify as to

the circumstances of the crime, and only one who heard Sivak

testify, could both to a degree exonerate Bainbridge at

Sivak's fatal expense is regrettably to my mind unacceptable.

Moreover, it highlights the bizarre results of having two

separate trials where there should have been a single trial,

and drives home the importance of adhering to jury death sen-

tencing as is a defendant's right under the Idaho

Constitution.

As briefly mentioned in the majority opinion

¥ rare &§2

C, "(t]he jury . . . acquitted appellant [Sivak] of Count II

As mentioned both defendants had been’ charged

jointly. On the morning of Sivak's trial, the prosecutor

filed an amended information five minutes before court con-

vened. This amended information named Sivak as the only

defendant. The four counts remained the same except that it

deleted any mention of Bainbridge. The amended information

was read to the jury:

"THE CLERK: (Reading.) In the District

Court of the Fourth Judicial District of the

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

Amended Information. The State of Idaho,

plaintiff, versus Lacey M. Sivak, defendant.

Jim C. Harris, prosecuting attorney in and

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

the name and by the authority of said State

prosecutes in its behalf in proper person,

comes now into said District Court of the

County of Ada and gives the Court to under-

stand and be informed that Lacey M. Sivak is

accused by this information of the crime of

Count 1, robbery, felony, Idaho Code 18-6501;

Count 2, murder in the first degree, felony,

Idaho Code 18-4001, 03(A); Count 3, murder in

the first degree, felony, Idaho Code 18-4001,

03(D); and Count 4, possession of a firearm

during the commission of a crime, felony,

Idaho Code 19-2520, which said crimes were

committed as follows to wit:

"Count 1, that the said defendant, Lacey

Sivak, on or about the 6th day of April, 1981

in the county of Ada, State of Idaho, did

feloniously and by means of apparent force

and fear take from the immediate presence of

Dixie Wilson, an employee of the Phillips 66

gas station, certain personal property, to

wit, cash money, U.S. currency, the property

of the Baird Oil Company which was accon-

plished against the will of the said Dixie

Wilson, and that the defendant pointed a gun

at the said Dixie Wilson, then shot and

stabbed the said Dixie Wilson to death, and

taking said cash money from the said Phillips

66 gas station.

"Count 2, that the said defendant, Lacey M.

Sivak, on or about the 6th day of April, 1981

in the County of Ada, State of Idaho, did

willfully, unlawfully, deliberately with

premeditation and with malice aforethought

murder one Dixie Wilson, a human being, by

shooting and stabbing the said Dixie Wilson

in the head and torso thereby mortally wound-

ing the said Dixie Wilson from which she

sickened and died in the County of Ada, State

of Idaho, on the 6th day of April, 1981.

"Count 3, that the said defendant, Lacey M.

Sivak, on or about the 6th day of April, 1981

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

the perpetration of a robbery, a felony, kill

one Dixie Wilson, a human being, by shooting

and stabbing the said Dixie Wilson in the

head and torso thereby mortally wounding the

said Dixie Wilson from which she sickened and

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

the 6th day of April, 1981.

"Count 4, that the said defendant, Lacey M.

Sivak, on or about the 6th day of April, 1981

in the County of Ada, State of Idaho, did

carry and use a firearm, to wit, a .22 cali-

= $8 «

A3Z

ber revolver in the commission of the crimes

alleged in Counts 1, 2, or 3 above, all of

which is contrary to the form, force and

effect of the statute in such case made and

provided and against the peace and dignity of

the State of Idaho.

"Jim C. Harris, Ada County prosecuting

attorney. (End reading.)"

Sivak testified that it was Bainbridge who was the

actual murderer. The jury while deliberating sent this note

to the court:

"If we convict him of robbery and agree

that a murder took place by one or both of

the two men do we HAVE to convict him of lst

degree murder on count III, or can we convict

him of second degree murder?"

R., Supp. Volume, p. 26.

thereafter returned verdicts which found Sivak not guilty as

charged in count II, but guilty as charged in counts I, III

and IV.

Following that verdict, the prosecutor amended the

information in Bainbridge's case to two counts only, Robbery,

Count I, and murder in the commission of a felony, Count II.

Thus, the prosecutor for reasons of his own, not disclosed on

the record, did not give the jury any opportunity to pass upon

Bainbridge's guilt on the charge of premeditated murder. Sivak

had been acquitted of that charge, apparently because the jury

believed his testimony. The judge, however, at sentencing on

"a different range of information'' nevertheless held him

guilty of being the actual murderer. In my view this is not a

tolerable result, something that could not have happened in

Idaho in pre-Furman times, and should not happen today even

with the present system of sentencing. If a court can do as

was here done, the legislature might as well abolish the jury

function entirely--in which effort it might find some support

on this Court.

A33

For reasons stated by Justice Huntley and myself in

our Creech opinions, which have been herein reaffirmed, I

vehemently dissent from Part II C of the majority opinion

which announces and embraces the theory of "different ranges

of information."

This novel doctrine, said to be based upon

Woodson v. North Carolina, 428 U.S. 280 (1976), opens the

doors to anything that a prosecutor can persuade a presentence

investigator to incorporate into his report. Here, in Sivak's

case, the majority with blatant candor approves of the "in-

depth interview" of Sivak's accomplice and its inclusion in

the report. This "in-depth interview" of Bainbridge, who had

not yet been tried at the time Sivak was being sentenced, was

not an interview but a taped police and prosecutor's interro-

gation of Bainbridge just three days after the murder. This

interrogation occurred while Bainbridge was in custody, having

been interrogated the evening before by Mr. Pfeiffer and Mr.

Killeen until about 8:25 p.m. at which time he was arrested,

given his Miranda rights and booked into the Ada County Jail.

Presentence Report, pp. 9-10, Police Report.

The "in-depth interview'' of Bainbridge found in the

presentence report took place on April 9th and was conducted

by Mr. Vaughn Killeen, Mr. Dee Pfeiffer from the Ada County

Prosecutor's Office, John Dutcher, deputy prosecutor for Ada

County, and Officer Collins of the Garden City Police Depart-

ment. The transcript of the tape is 75 pages long. No

purpose would be served by setting it out, other than to den-

onstrate the skills of the interrogators. It suffices to say

that Bainbridge did, as might be expected, attempt to exoner-

ate himself from both the robbery and the murder, and fix all

blame on Sivak.> In the same presentence report is a four-

5 As mentioned, Bainbridge did not testify at either trial.

At his trial the prosecution did not offer his statement in

evidence--perhaps because he denied any complicity, and per-

haps because of what appears to be a Miranda violation.

» $<

L3¢$¢

page unsigned and uninitialed document entitled DEFENDANT'S

VERSION, following which is the following direction and admo-

nition:

"Use this page to tell in your own words what

happened before, during and after the crime.

Include how you felt at the time, if you had

been drinking or using any drugs, and any

other factors that may have caused you to

commit the crime.

"This section is VERY IMPORTANT as it will be

included in the report to give the Judge and

the court an opportunity to understand your

side."

Following, then, is that which presumably is Sivak's post-

conviction account of what transpired at the murder scene--

appearing to be consistent with his testimony, and just as

equally self-serving as Bainbridge's unsworn answers to police

questioning. How a district judge could divine from the two

sources of evidence, to wit, the sworn and unsworn statements

of Sivak as against the unsworn statements of Bainbridge, who

was telling the truth, if either, is beyond my powers of con-

prehension. As I have said, the two should have been tried at

one time, and a jury should have decided their fate. I find

it intolerable that for the same brutal murder which juries

have found were committed by both, our system of criminal jus-

tice results in vastly differing penalties for the two

offenders. .

I am also greatly troubled by some of the testimony

that was offered and accepted at the "live" portion of Sivak's

sentencing hearing. In particular, there was little reason or

justification for the prosecutor to put on the stand a Mr.

Frank Sattler. His testimony, in my view, transgresses beyond

that which a sentencing jury, or judge, shovld hear--having

nothing to do with the circumstances of the crime, or the

character of the defendant. If any one private citizen can

6 "FRANK SATTLER,

« 9% «

43S5—

be allowed to advise the sentencer to impose the death pen-

produced as a witness at the instance of the State, hav-

ing been first duly sworn, was examined and testified as

follows:

"DIRECT EXAMINATION

BY MR. HARRIS:

"Q. Frank, would you state your full name, please,

and spell your last name?

"A. Frank Sattler, S-a-t-t-l-e-r.

"Q. Mr. Sattler, how are you employed?

"A. I'm a director of the Oil Heat Institute for

Southern Idaho and Eastern Oregon.

"Q. Okay. You reside here in Ada County, do you?

“A. I do.

"Q. Can you describe what that association is?

"A. It is an association of all the dealers in

Southern Idaho in which markets petroleum products.

" Were you employed in that capacity on and after

April 6th of this year, 1981?

"A. I was.

"Q. Do you recall the incidents as reported in the

press that occurred on April 6th, 1981 at a gas station

owned by Claud Baird here in Boise?

“A, ZOO.

"Q. What I would like you to do, Mr. Sattler, if you

would, is just describe the ramifications throughout your

industry that were felt based upon that criminal act on

that day.

"A. I didn't bring my notes. I don't recall the ‘

exact dates, but shortly thereafter we had a meeting at -

my home concerning the murder of Dixie Wilson.

"Q. What kind of people attended that meeting?

"A. Well, the Stinker service chain was represented,

the Shell service station, the Husky, the American Oil--I

think all the major service station owners were at the

meeting.

"Q. All right. Go ahead.

"A. And at the meeting Mr. Baird briefed the people

that were there on what he had found at his particular

station.

"Obviously, the emotions were quite high. And the

meeting progressed as to what action, if any, we could

» 2 «

436

alty, then why not fifty such witnesses? Or five hundred, or

take to prevent future occurrences and just how we could

protect our people, frankly.

"Q. What kind of feelings resulted from that crime

as were evidenced by the retail dealers in Ada County at

that time?

"A, Well, several of the people that were there

had--their employees had expressed to them the desire to

take weapons to work with them. We discussed that at

length and ruled it out with the obvious intent that

somebody innocent would get hurt.

"We went to the manuals to find whatever safety de-

vices were available to us, which some have _ been

installed, like, bullet-proof glass and the like in those

stations when the teller is inaccessible to the people.

"But where the teller is accessible, we can't use

that, obviously.

"Q. All right. What kind of people generally are

tellers in gas stations in this community?

"A, The cashier types are primarily housewives try-

ing to make a few extra dollars.

"Q. Would you say that they are vulnerable to this

type of criminal activity?

"A. Totally vulnerable.

"Q. Mr. Sattler, if you were in a position to pass

down a sentence in this case, what would that sentence

be?

"A. My personal opinion?

"Q. Yes.

"A, I'd hang hin.

'MR. HARRIS: That's all I have Judge."

"CROSS -EXAMINATION

BY MR. KEHNE:

"Q. Mr. Sattler, do you know anything about the

facts of the case other than what was reported in the

press?

"A. Nothing.

"Q. You don't know who actually killed Dixie Wilson,

do you?

"A, I do not. Other than what was reported in the

press and what the Court found.

"Q. Were you aware that the jury acquitted Mr. Sivak

for premeditated murder?

» $F «

227

the entire ere And, here, is it not to be legitimately

presumed that the prosecutor called this particular witness

knowing or believing that the witness could and would be the

deciding factor when the judge made his determination. Who is

to say it was not the swinging factor?

And, was it proper to place the victim's husband,

Harry Wilson’ on the stand and beseech of the judge the death

"A. Was I aware of that?

"Q. Yes.

"A. No, I don't recall reading that.

"Q. Would that change your opinion?

"A. Negative.

"Q. You don't think it is something that should be

considered?

"A, I wouldn't--I don't consider taking a human life

as something that just--

"Q. He was acquitted of that, Mr. Sattler.

"MR. HARRIS: I object, Your Honor. He wasn't ac-

quitted of that.

"THE COURT: Well, it's cross-examination. You may

proceed, Mr. Kehne.

"Q.- BY MR. KEHNE: About how many robberies have

there been in gas stations around this valley in, say,

the last three years?

"A. I don't keep the statistics on that.

"Q. How often does it happen; can you give me an

approximation?

"A, I think we probably average about two a month.

I think Mr. Harris probably has the statistics on that.”

7 "HARRY R. WILSON

produced as a witness at the instance of the State, hav-

ing been first duly sworn, was examined and testified as

follows:

"DIRECT EXAMINATION

BY MR. HARRIS:

"Q. Mr. Wilson, try to make yourself as comfortable

as you can there, and would you state your full name for

the record.

"A. Harry R. Wilson.

penalty? I believe that it was totally wrong, and here again

"Q. Do you reside in Ada County, Mr. Wilson?

"A. Yes.

"Q. How long have you lived in Ada County?

"A. Since '69.

"Q. And how are you employed?

"A. For Baird Oil.

"Q. What do you do for them?

"A. I drive delivery truck.

Are you the same Harry Wilson who testified in

the trial of this defendant, Lacey Sivak, in September?

"A. Yes.

"Q. Could you describe for the Court, please, Mr.

Wilson, your family setting and general family life prior

to April 6th, 1981?

"A. It was a pretty happy family life. Everything

went pretty smooth. We had our disagreement, which any-

body does, but it was a happy life.

"Q. How many children did you reside with at your

residence with Dixie?

"A. Three.

"Q. How old are they now?

"A. 13, 12 and 9.

"Q. Who was the mother of those three children?

"A. Dixie B. Wilson.

"Q. I would like for you now to describe you family

circumstances since April 6th, 1981.

"A. It has been a hard go. It's--we started out the

day of the funeral.

"Their original father, of the two boys that we had,

that was hers from a previous marriage, he stuck me with

a custody suit. We was in court right after that, and I

have been in court four--or five times over that.

"Q. Are those children still residing with you,

however?

"A. Yes. I won my case with them; I've got them.

And I've got one daughter that has been in psychiatric

treatment ever since.

"Q. How old is she?

« % -

ASG

may have been the single precipitating factor which tipped the

scales. Did Harry Wilson know, any better than the judge, who

it was, Bainbridge or Sivak, who was the sole heartless our-

derer? Or, whether it was both who struck, stabbed, and shot

her to death. I am at a loss to see from this record how

Harry Wilson could know that. He would learn eventually, but

not then, that a second jury at a later trial would also con-

vict Bainbridge of that same murder--but Bainbridge at the

time that the prosecutor placed Harry Wilson on the stand was

yet presumably innocent. Whether Harry Wilson would later ask

Bainbridge's judge to execute him, too, is another question,

as is so with whether the prosecutor would exercise his dis-

cretion to call Harry Wilson and Mr. Sattler to the stand in

order to urge the death penalty.

Although it is again disturbing to peruse a presen-

tence report which again, as in Creech includes accounts of

"A. She is nine.

Is that the natural daughter of both you and

"A. Yes, that's our natural daughter.

"Q. Tell me about those problems. What kind of

problems is she having?

"A. Well, she just -- she couldn't accept it --this.

And then she's had other problems; she has been molested

twice since then.

"Q. Okay.

"A. She's just -- too many things; she can't accept

it.

"Her grades -- schoolwork; everything has went down.

All the kids went down.

"Q. Harry, if you were in a position to pass sen-

tence on Lacey Sivak, what would that sentence be?

"A. Death.

"MR. HARRIS: That's all I have, Judge.

"MR. KEHNE: We have nothing. Thank you."

- 40 -

AY¥0

trial proceedings, there is not present here, as there was in

Creech, an editorial encouraging the death penalty, This

Court, which has assumed the right to dictate that which shall

be included in presentence reports, see I.C.R. 33, Idaho

Judge's Sentencing Manual part V, pp. 5.1l-1 to 5.2-32, should

take proper steps to keep out extraneous matter, and should

reconsider State v. Moore, 93 Idaho 14, 454 P.2d 51 (1969),

with a concerned view to the remarks of Justice Huntley in

Part II of his Creech opinion.

In State v. Moore, a non-capital case, where a defen-

dant was seeking probation, this Court considered the extent

to which it would allow the use of hearsay found included in

presentence reports, and held in favor of such use on the

basis that “even though it would not be admissible under the

rules of evidence [it] might be of great benefit to a defen-

dant. We hesitate to apply unduly strict procedural

requirements which would operate equally to prevent defendants

from marshalling hearsay and other evidence favorable to them-

selves." Id., p. 18 (emphasis added). It was a compassionate

judgment when rendered. Fourteen years have since gone by,

and recently the Court, differently constituted, has forgotten

that the reason for the rule was to benefit defendants hoping

for probation and rehabilitation. I very much doubt that any

defendants convicted of first degree murder have ever sought

probation. In non-capital cases the rule of State v. Moore

has been used to the disadvantage of defendants--who would in

my experience generally be better off if presentence investi-

gation and reports were done away with. There has always been

and remain yet our statutory procedure providing for the pres-

entation of evidence in aggravation and evidence in

mitigation. This has been so in pre-Furman cases, as docu-

mented in my Creech opinion. Whatever the Court decides to do

e he

ALZ/

in non-capital cases, and a return to the beneficent inten-

Pte ol tate ve Mere Tea ter cerslee y the Cenert atmply caused

in any show of conscience continue to let capital sentencing

be hinged on unsworn statements and other forms of hearsay.

It is now clear that a capital case involves two trials. The

first is to try the issue of the accused's guilt. If con-

victed, the second is to try the issue of the circumstances of

his crime and the facets of his character. Common sense dic-

tates that the second trial for his life is the defendant's

more important trial. Can it be then that in Idaho we have a

rule that while due process obtains at the guilt trial, any-

thing goes at the second trial which determines the issue of

life and death? Until recently, I had thought that removing

the element of due process from the second trial was such a

monstrous proposition as to be undeserving of discussion or

comment. Today I find myself aligned with Justice Huntley in

an effort to so convince today's unyielding majority who

harken back to State v. Moore as authority for abolishing due

process.

It is true that State v. Moore, in addition to safe-

guarding defendant's rights, relied on Williams v. New York,

337 U.S. 241, 69 S.Ct. 1079 (1949), but it is also true that

thirty-four years have passed, and much has changed, particu-

larly in the area of death penalty sentencing. If the Supreme

Court of the United States, as presently constituted, can now

say that it little matters that a defendant is deprived of

constitutional due process when his life is the issue stake,

then a great many state judges and justices are going to be

both disappointed and surprised. Whatever the outcome when

the validity of Williams is closely scrutinized, we who sit on

the Idaho Supreme Court will strike a sound blow for good

government and good criminal justice administration when we

A¥Z

remember that we are also sworn to uphold the Idaho Constitu-

tion and its senchouiatie of due process and . fundamental

fairness. Today, as a Court, we do not do so. Presently,

insofar as the United States Constitution is concerned, I

believe that under it, and the many many death penalty cases

of the Supreme Court, the validity of Williams has wholly

eroded-- insofar as it denied that due process was involved in

sentencing a man to death.

HUNTLEY, J., concurs.

HUNTLEY, J., dissenting.

I would reverse and remand for the conduct of a con-

stitutionally proper sentencing procedure.

The sentencing procedure utilized violates both the

United States Constitution and the Idaho Constitution in failing

to involve the jury in the sentencing process.

The Idaho Constitution, as first approved on July 3,

1890, and as it reads today, provides in Art. l, § 7:

"Right to trial by jury. -- The right of

trial by jury shall remain inviolate ...."

That right of trial by jury as it existed at the time our con-

stitution was adopted provided for jury participation in the

capital sentencing process. Section 17 of the Criminal Practice

Act of 1864 provided in pertinent part:

“[A]nd the jury before whom any person indi-

cted for murder shall be tried, 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 witnesses, to determine the degree of the

crime, and give sentence accordingly. Every

person convicted of murder of the first degree,

shall suffer death; and every person convicted

of murder in the second degree, shall suffer

imprisonment in the territorial prison for a

term not less than ten years, and which may be

extended to life.”

In other words, the jury, by determining whether the

party was guilty of either first or second degree murder,

e 63 «

AY3

lt = _ Nee

determined whether or not the death penalty would be imposed.

In Blue Note Inc. v. Hopper, 85 Idaho 152, 157, 377

P.2d 373, (1962), we stated:

“The provisions of the constitution pertain-

ing to the right to trial by jury are con-

strued to apply as it existed at the date of

the adoption of the constitution."

Accord: Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351 (1951);

Christensen v. Hollingsworth, 6 Idaho 87, 53 P. 211 (1898);

Comish v. Smith, 97 Idaho 89, 540 P.2d 274 (1975).

A detailed analysis of the reasons jury participation

is mandated under both the Idaho and United States Constitutions

is set forth in the separate dissenting opinions of Justice

Bistline and myself in State v. Creech, __ Idaho __, P.2d

(1983), which dissents I hereby adopt as though fully set

forth herein.

BISTLINE, J., concurring in the opinion of Huntley, J. a

Lockett v. Ohio, 98 S.Ct. 2954 (1978), teaches in

footnote 16 that the Supreme Court specifically did not ad-

dress, and so reserved for another diy, Sonrsentons that the

federal Constitution requires jury sentencing and that Ohio's

death penalty statutory procedures impermissibly deny a defen-

dant's right to be tried by a jury. 98 S.Ct. at 1967. Hence,

it is with some concern that today I read a majority opinion

of this Court which declares that "the Supreme Court has rec-

ognized, in dicta, that udge sentencing should lead to

greater consistency in sentencing . .. Proffit v. Florida,

428 U.S. 242, 96 S.Ct. 2960 (1976)... ." It is, perhaps,

excusable to confuse remarks of obiter dictum with remarks of

a three-member plurality. I am equally concerned that today's

AYY

2 majority opinion intimates that Barclay v. Florida, U.S. ‘

a , (1983), is also authority which should persuade us that

jury sentencing is not mandated by the federal Constitution.

My reading of that case discloses only that in Florida the -

—. - as

jury's function is simply to recommend and the trial judge,

who is the sentencer, is not bound by the recommendation. The

Florida procedure is neither like our pre-Furman Idaho proce-

dure nor like our post-Furman Idaho procedure. Rather

obviously the majority's reliance on Barclay for the particu-

lar point is a grasp at something, anything, to support a

declaration that "(w]e see no reason why a sentencing scheme

not involving the jury should be declared unconstitutional

under the United States Constitution."! In time the Supreme

Court will recognize, as it did in Lockett, its obligation to

provide guidance. ("The States now deserve the clearest guid-

ance that the Court can provide; .. . ." Lockett at 2963.)

Meanwhile, given the meaningless and misleading intimations of

today's majority opinion on an issue which this Court should

meet in response to Justice Huntley's well-documented Creech

opinion, and given the invalidity of our Idaho statute remov-

ing the jury as sentencer--as measured against our Idaho

Constitution--I have again joined the opinion of Justice

. Huntley in this case as I did in Creech. The Supreme Court,

however, cannot continue to reserve the question if it is to

live up to the promise of Lockett. Ultimately it, and only it

can make the final decision that something is basically wrong

where a nation is divided amongst itself as to the use and

~-<—8—<— “<<< 8-8 ee = «= «=

1 Today's majority again, as in Creech, offers no response

of any substance.

—' a

hes”

utility of capital punishment. Can it be and should it be that

in one nation a murderer in one state will be executed, whilst

murderers in another state are not? Is a line the purpose of

which is to define geographic boundaries of states to forever

be the determining factor in determining whether a convicted

murderer will live or suffer death? If that be so, then many

will see that in and of itself as arbitrary and capricious if

one considers the question as the national issue, which in

reality it is. And assuming that it is wrong on a national

basis that the punishment meted out to murderers differs ac-

cording to State law, then where two murderers are convicted

of the same crime committed in one state, is it not arbitrary

and capricious that each is sentenced by a different judge?--a

proposition to which I shall turn in my own dissenting opinion

time permitting. It should be carefully noted that Judge

Newhouse in sentencing Sivak could not consider the Bainbridge

sentence--which had not been imposed. This Court, however,

does have both, and is obligated to consider any dispropor-

tionality in Sivak's sentence as compared to that imposed in

Bainbridge.

« £6 =

ALG

ESS ’'’'S'5e~ se

IN THE SUPREME COURT OF THE STATE OF IDAHO

NOS. 14435 and 15022

STATE OF I: AHO,

Ple.inctiff-Respondent,

Vv.

ERRATA

1983 Opinion No. 118

LACEY M. SIVAK,

Defendant-Appellant.

In 1983 Opinion No. 118, filed August 15, 1983, the

following corrections should be made:

Page 21, paragraph 2, line 5 reads: “herein reviewing

§ 19-2827."' SHOULD READ: "here in reviewing § 19-2827."

Page 25, paragraph 2, line 11 reads: “out to

Bainbridge or to the judge's § 19-2515 findings.'' SHOULD READ:

“out to Bainbridge or of the judge's § 19-2515 findings."

Page 27, last paragraph, line 11 reads: "Stephens'

opinion--which was expected.'' SHOULD READ: ''Stevens' opinion--

which was expected."

Page 33, paragraph 6, line 1 reads: ‘Thereafter re-

turned verdicts which found Sivak not guilty as.'' SHOULD READ:

“and thereafter returned verdicts which found Sivak not guilty

as.

A¥7

In the Supreme Court of the State of Idaho

STATE OF IDAHO, . )

) ORDER

Piaintiff-Respondert, )

)

Vv. ) NO. 14435 and 15022

)

LACEY M. SIVAK, i

Defendant-Appellant. )

WHEREAS, on September 2, 1983, the Appellant filed a PETI-

TION FOR REHEARING of the Court's Opinion in this appeal issued Au- i

gust 15, 1983; therefore, after due consideration, [

IT IS HEREBY ORDERED that Appellant's PETITION FOR REHEARING

filed September 2, 1983 be, and hereby is, DENIED and the dissent on

DENIAL OF PETITION FOR REHEARING by Bistline, J., shall be released as

an Addendum to the principal Opinion.

IT IS FURTHER ORDERED that, inasmuch as the Court's Opinion

in this appeal has become final, the Clerk of this Court shall issue a

Remittitur of this appeal to the Fourth Judicial District Court, Ada

County, Idaho.

DATED this 27# say of December, 1983.

For the Supreme Court

Saal vf

(- ’ \ ft

., 2 . \ ‘~ ‘ae? aoe pe

Charles R. Donaldson

Chief Justice

ATTEST:

Cler

1, Frederick C. Lyon, Clerk of the Bupreme Court

of the State of idsha, de hereby thet

scowe 2 8 true and eurvect copy of

entered in the sheve entitled esuse and now on

record in my effies.

UATNESS ony hand ond the Seat of thie CourtlZ<2T- 85

FREDERICK C. LYON

‘

IN THE SUPREME COURT OF THE STATE OF IDAHO

NOS. 14435 and 15022

STATE OF IDAHO, }

Plaintiff-Respondent,

Vv. } ON DENIAL OF PETITION

FOR REHEARING

LACEY M. SIVAK,

December 27, 1983

Defendant-Appellant. )

BISTLINE, J., dissenting from denial of petition for rehearing.

Counsel for Lacey Sivak, in his Petition for Rehearing,

presents several compelling reasons why this Court should grant

the petition. Among the issues presented in his petition are the

following:

(1) Whether the Idaho Supreme Court has denied Sivak the

opportunity to raise important constitutional questions by

consolidating Case No. 15022, which appealed the refusal of the

trial judge to allow Sivak the opportunity to present additional

evidence in mitigation of sentencing, with Case No. 14435, which

appealed a decision denying Sivak the opportunity to submit

additional briefing or arguments in Case No. 15022.

(2) Whether the trial court erred in refusing to hear

evidence in mitigation of Sivak's sentence on resentencing in

contravention of the United States Supreme Court's decision in

Lockett v. Ohio, 438 U.S. 586 (1978) an@ Eddings v. Oklahoma, 102

S.Ct. 869 (1982).

(3) Whether this Court's procedure of vacating and remand-

ing for resentencing, while purporting to retain jurisdiction, a

procedure absolutely without precedent, and not provided for in

rule or statute, was proper.

(4) Whether this Court's proportionality review was

incomplete and constitutionally defective as the majority opinion

contains no specific reference to particular cases it examined.

Of discussion, there is none.

(5) Whether I.C. § 19-2827 is constitutionally defective in

that it apparently only requires the Court to compare death

sentences with other death sentences rather than considering

those cases in which an intentional killing was involved but

which did not result in imposition of death.

(6) Whether I.C. § 9-255(£)(8) which this Court narrowly

construed in State v. Creech in order to preserve its constitu-

tionality could have been properly applied in Sivak's sentencing

which occurred before this Court's decision in Creech.

(7) Whether a death sentence can be premised on a condition

found to exist with a certainty less than beyond a reasonable

doubt as I.C. § 19-2515(£)(8) allows as an aggravating circum-

stance that "The defendant .. . has exhibited a propensity to

commit murder which will probably constitute a continuing threat

to society.

(8) Whether the jury instruction on criminal liability for

aiding and abetting was improper when it implied that Sivak could

be found guilty thereunder for possession of a firearm which is

not in and of itself a crime.

(9) Whether Sivak's constitutional right to confrontation

and cross-examination of witnesses was violated by the use of the

ungworn and uncross-examined statement of Randall Bainbridge in a

pre-sentence report for the district court's finding that "[tJhe

defendant dominates his co-defendant, and is primarily responsi-

ble for ali that occurred,"' which served as a basis for the trial

court's imposition of the death penalty.

(10) Whether Sivak may be punished for both robbery and for

murder premised on a felony murder theory when the robbery count

did not require proof of an additional fact which the murder did.

A 50

EEE EE Ee

Fnough of these issues are presented with excellent briefing

and argument so as to at least meric considerat

fon and discussion

by the Court, and better yet,

reargument. '

SS ee @ [ Sp: ee<

In the Supreme Court of the State of Idaho

STATE or WHO, )

)

Pitintilflekesy nedente, )

Vv ) NOS. 14435 and 15022

LACEY M. SIVAR REMITTITUR

Defondant-Apped lant,

and

RANDALL W. BAINBRIDGE,

i ee ee ee

Defendant.

TO: FOURTH JUDICIAL DISTRICT COURT, COUNTY OF ADA.

The Court having announced its Opinion in this cause

August 15, 1983, which has now become final; therefore,

IT IS HEREBY ORNDPRED that the District Court shall

forthwith comply with the directive of the Opinion, if any

aetion 25 required.

DATED this 27th day of December, 1983.

oo OY

Clerk of the Supre Court

STATE OF IDAHO

'. Frederick C. Lyon, Clerk of the Supreme Court

of the State of idaha, de hevahy thet

above is # true end carvest eapy of “\

2ntered In the above entitied esuse and new on

record in my office, - 2/27/93

WITNESS my hand end the Seed ef tats Courttz2 7!”

FREDERICK C. LYON Cork

W aN Bsa Se’ -_ Sat Deputy

SSS Ss Ss = "is ee ° TEE TF etre

83-6326

APPENDIX B

; ed

25 | ' | r :

26 | r ¢ Je ee

28 | Pre-sentence Report That a pre-sentence report was

| pre ( € »9€ the t and delivered to the defendant or

30 s sé ; eas la Yr re rne sentencin near

a | rsuant to 19-2515 Idaho Code, and the Idaho Criminal a&ules

;

32 sen et -ing in”? That

a sentencine hearine was

FINDINGS OF TIT

COURT IN CONSIDERING

THE DEAT! PENALTY “154- an Filed December 16, 1981

wv a>. a

ocUhClc OUlhC COCOhUCTr FH

pur

said h

Suant

earing, in

notice to

the

counsel for the

presence of the

the court heard relevant evidence in areravation and

ation of the offense, and arguments of counsel.

acts and Argument Found in Mitigation

a That the defendant is a young man, 22 years

f ace likely subject to some type of rehabilitation

This rehabilitation will be extremel difficnir It

soc ypneen “ried

> That the defendant is readily emplovable and

is capable of being further trained and educated He

is ambitious and is of normal intelligence

C That the defendant is a ezood member in his

church organization, was very active in this church. and az

the pcod will of the membership

3 That the defendant, by the findings of the iury,

s not rpuiltv of oremeditated murder

2 That, after the defendant was paroled from prison,

ne received no nerative carole reports, was then placed

nm minimum parole supervision. and S a result, received

m™ early discharge from parole on August 25, 1980

~ facts and Argument ound in Aggravation

the commission of a gas-s

done with co-detendant

be ; . : te -4 ? -~

the detencant'’s prior plac

}

h 4 ; } ert ?

ao iihk Wild

toward his e

co-defendant, and is

rhat occurred

t#=tion

ye Randall

x-employer.

primarily

employment

The defendant

dominates

responsible for all

b That the defendant plannec committing serious

crimes, such as robberv.

as shown by his stealing a pistol

from his mother's employer at her place of employment.

FINDINGS OF THE

—. +

1 Cc. That the defendant knew the victim, bore her

2 animosity, and realized she could identify him if she

3 were left alive after this robbery.

4 d. That the defendant himself used this pistol in

5 the commission of this murder After the robbery, and

6 the killing, the defendant hid the pistol in a mini-

7 warehouse, in his car, both being under his control.

8 e. That both this defendant, and his co-defendant,

9 were large strong powerful men, and the victim, a woman,

10 was completely under their physical domination. She had

ll no chance!

12 c Nat the defendant was previously convicted of

13 three felonies, to-wit:

14 Date felony was committed Description of Crime

15 August 16, 1977 Burglary

September 2, 1977 Receiving Stolen Property

16 September 2, 1977 First Degree Burglary

17 for which he was sentenced, on each charge, on Necember 12,

18 1977, to 5 years, indeterminate sentences to be served

19 concurrently, with the court retaining jurisdiction of these

20 sentences for 120 days. The defendant was initially placed

21 at the North Idaho Correctional Institute at Cottonwood,

22 Idaho, a minimum security facility. The defendant failed

23 to respond to this program, and was subsequently removed on

24 January 27, 1978, to the mainsite in Ada County, Idaho. On

25 . April 11, 1978, jurisdiction was excrended for an additional

26 sixty days. The defendant was ultimately paroled on

27 June 27, 1979, and placed under the supervision of Arlene

28 Baldwin, Probation and Parole. His discharge from parole

29 was August 25, 1980, a few months before this brutal robbery

30 and murder

31 Fe That the defendant was not under the influence of any

32 | mine controlling substance during this incident He apparently

FINDINGS OF THE

COURT IN CONSIDERING

THE DEATH PENALTY -156-

intentional rational act.

6. Statutory Aggravating Circumstances F

19-2515(£), Idaho Code.

These aggravating circumstances are all found by chi

be beyond a reasonable doubt

a. The murder was especially heinous, at

yr crue manifesting exceptional depravity. (s

#5) The defendant actively participated in con

Oo .e) oo ~ fea) wv > w N

approximately twenty times,

was mentally cool and collected, with the murder being an

und Under

S €ourt

rocious

ub-paragraph

tinually

and shooting

11 her, approximately five times, white sexually molesting her

12 at the same time The victim tragically remained alive,

13 ring this torturous ordeal a lone veri »9f time

14 thereafrer

15 b. By the murder, or circumstances surrounding its

16 commission, the defendant exhibited utter disregard for

17 uman life (sub-paragraph #6) No one could have killed

er and had any vossible

life of Dixie Wilson.

Cc. The murder was one defined as

First Degree by Section 18-4003, Idaho Code, (d)

riurder of

recard for

the

, to-wit:

in the perpetration of a robbery, and it was

accomnanied with

a human being.

realized the vic

alive after this

d. The de

in the commissio

a continuine thr

believe

court to

remain

lefendanr

FINDINGS OF THE

COURT Iti CONSIDERING

THE DEATH PENALTY

the specific intent to cause the death of

After the robbery. commenced the defendant

tim could identify him if she were left

robbery

fendant, both by prior conduct and conduct

n of the murder at hand, has exhibited a

propersitytco-commit murder which will probably constitute

@at to gncriery It is impossible for this

that society will ever be safe while this

s mobile and active

= — 282 G&G. -@o Bw ee

i ae. ee a a, a

_ oOo ons awun sk. ~*~ N =

FINDINGS

7. Reasons Why Death Penalty “las Imnosed.

This defendant actively participated in the brutal savage

slaying and sexually molesting of a woman while at the same

time butcherine her alive. By so doing Lacey M. Sivak has

forfeited his rights to life, society must be protected, and

his peace should be made with his maker - not with this Court.

The Court finds that the mitigating circumstances do not

outweich the gravity of the aggravating circumstances so as to

make unjust the imposition of the death penalty.

That the death penalty should be imposed on the defendant

for the capital offense of which he was convicted.

Dated this 16th day of December, 1981.

“CME XK ZL CEB LLLELE

‘HON. PORERT 3. NEWHOUSE

District Judge

OF THE

COURT IN! CONSIDERING

THE DEATH PEWALTY “-liid-

| E

1 IN THE SISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF

2 THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

3 ,

Vi We @ Ale

4 rot aaa in FSA

5 , -

he ie

6 ) on

7 || THE STATE OF IDAHO, w Lizerste Hrigsttore

Plaintiff, ) f

° )

9 I VS: ) Case No. 10183 A

)

10 ) JUDGMENT OF CONVICTION

LACEY “M. SIVAK, )

11 Defendant.

12 | ,

This being the time fixed by the Court for pronouncing

sentence unon the defendant, the Court noted the presence of

Jim C. Harris, Prosecuting Attorney of Ada County, Idaho,

Lace’ 14. Sivak, the defendant, and Rolfe Kohne and Klaus Weibe,

attorneys for the defendant, in court.

The defendant was duly informed as follows:

Le Nf the Information filed against the defendant for the

crimes of ROBBERY, 1.C. 18-6501, MURDER IN THE FIRST DEGREE,

I.C. 18-4901, 93 (d), and POSSESSION OF A FIREARM DURING THE

COMMISSION OF BOTH CRIMES, I.C. 19-2520, committed on or about

April 6, 1981.

z Of the defendant's conviction, by a jury, on these

charres, Seotember 29, 1981.

The Court, then, after these convictions, ordered a >re-

sentence investigation, and convened a sentencing hearing for the

Durpose of hearing all relevant evidence and arguments of counsel

" agpravation and mitigation of the offenses, in accordance with

| 19-2515 of the Idaho Code, and Rule 33.1 of the Idaho Criminal

| tte and the Court having entered written findings setting forth

- the statutory aggravating circumstances found, and the mitigating

circumstances considered; and the Court having found that che

JUDGMENT OF CONVICTION -1:9- Filed December 16, 1981

1 ||) micigating circumstances found do not outweigh the aggravating

2 jj circumstances found so as to make unjust the imposition of the

3 || death penalty; and the Court having found no legal cause or

4 || reason why judgment and sentence should not be pvronounced against

5S |jthe defendant at this time; does render its judgment of conviction

6 Ijas follows, to-wit:

7 That, whereas, the defendant having been convicted in this

8 |} Court of the crimes of Robbery, I.C. 18-6501, Murder in the First

9 |] Degree, I1.C. 18-4001, 03 (d), and Possession of a Firearm During

10 ithe Commission of Both Crimes, I.C. 19-2420,

11 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED That the

12 |i}defendant, Lacey M. Sivak, is guilty of the crimes of Robbery,

13 jj) 1.C. 18-6501, and Possession of a Firearm During the Commission

14 fiof this crime, I.C. 19-2520, and that he be sentenced to the

IS |) Idaho State Board of Correction, under the provisions of

16 |} 19-2513 A of the Idaho Code, for the crime of Robbery, to the

17 || custody of the State Board of Correction for a fixed period of

18 jj} cime for the rest of his natural life, and for the crime of

19 |} Possession of a Firearm Durine the Commission of this Crime, in

20 || addition to the sentence imposed for Robbery, to be served

21 |i consecutively, to the custody of the State Board of Corrections, for

22 ||a fixed period of time of not more than 15 years; and that he be

23 || remanded to the custody of the Sheriff of this County to te

24 || delivered to the proper agent of the State Board of Correction in

25 |}execution of this sentence. The defendant is to receive credit

26 || for the 205 days spent in the Ada County Jail prior to entry of

27 |ithis Judgment. Any bail is exonerated.

28 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED That the

2 | defendane Lacey M. Sivak, is guilty of the crime of Murder in the

30 || First Degree, I.C. 18-4001, 03(d), and Possession of a Firearm

31 || During the Commission of this Crime, I.C. 19-2520, and that he be

32 || sentenced on these charges to be punished by death by the Idaho

JUDGMENT OF CONVICTION ~lad- ‘

1 State Board

JUDGMENT OF

2 the manner prescribed by

3 custody of the

4 || proper agent of

his sentence.

Dated this

CONV ICTION

of Correction,

Law,

the State

on January 26, 1982 at 9:00 a.m., in

fe)

rv?

and that he be remanded to the

be delivered the

Correction in execution o

of December, 1981

7« di

LE LLL

HON. ROBERT NEWHOUSE

District Judge

———_

In the Supreme Court of the State of Idaho

STATE OF IDAHO,

/O/83 4

Supreme Court No. 144%

Plaintiff-respondent,

Vv.

ORDER

LACEY MN. SIVAK,

ws SS SS SS

Defendant-appellant.

In the above-entitled cause, defendant Sivak was

convicted by a jury of a charge of first degree murder, a

charge of robbery, and a charge of possession of a firearm

during the commission of a felony. In accordance with I.C.

§ 19-2515, the district court conducted a hearing into

mitigating or aggravating circumstances and thereafter on

the 16th day of December, 1981, the district court purported

to impose the death sentence upon the defendant; and

The cause being before this Court both on appeal by the

defendant and also pursuant to the automatic review of death

sentences mandated by I.C. § 19-2827; and

It appearing from the record, without any contention

otherwise by the respondent State of Idaho, that contrary to the

requirements of I.C. § 19-2503 and I.C.R. 43(a), the trial judge

purported to impose sentence in the absence of defendant and his

counsel and without the presence of defendant and his counsel in

open court, but rather by means of a written imposition of a

sentence of death,

NOW, THEREFORE, IT IS HEREBY ORDERED that the sentence

of death imposed upon the defendant in the absence of the defendant

ORDER FOR SENTENCING -8- Filed March 24, 1983

Pa SS

and his counsel be and the same hereby is vacated and the cause is

remanded to the Honorable Robert Newhouse, District Judge of the i

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 Lacey M. Sivak 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. § 19-2705; and |

IT IS FURTHER ORDERED that on the completion of said i

proceedings a transcript thereof shall be immediately prepared,

delivered and lodged with this Court not later than five (5) days |

from the completion of said proceedings; and

IT IS FURTHER ORDERED that this Court shall retain

jurisdiction of this cause pending compliance with this Order and

thereafter will determine the issues on appeal; and

IT IS . FURTHER ORDERED that this Order be served upon

the Honorable Robert G. Newhouse, District Judge of the Fourth

Judicial District, the Cffice of the Attorney General, and counsel '!

for the defendant.

DATED this 24th day of March, 1983.

By Order cf the Supreme Court

eo LiLh. a ie ZZ

Chief Justice

1 IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE

2 STATE OF IDAHC, IN AND FOR THE COUNTY OF AOA

3 ——

eee

4 MAR 1g 1989

, * EMI om

6 |! {THE STATE OF IDAHO ‘ ec)

7 Plaintiff, ) Case No. 10183

8 vs. ORDER

9 LACEY M. SIVAK

10 Defendant,

13 It appearing to this court that the court's prior

14 attempted sentencing of the defendant requires a further

15 hearings in open court, and good cause appearing therefore:

16 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the

17 defendant, Lacey M. Sivak, and his counsel, appear in front

18 of this court on Monday, April 4, 1983, at 9:00 A.M. for

19 sentencing in accordance with newly enunciated law.

20 Dated this 18th day of March, 1983.

21 ae,

” ROBERT C.

4 District Judge

25 .

OPDER FOR APPEARANCE -7- Filed March 18, 1983

FOR SENTENCING

uo oN Dn A

IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF

THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

Ww.

. Rivet /200

hOR4- 1983

“= g2

Deru

THE STATE OF JDAHO,

Plaintiff,

vs. Case No. 10183 A

LACEY M. SIVAK,

JUDGMENT OF CONVICTION

Defendant.

Se Ne NS Ne NS SS SS SO SY OS

This being the time fixed by the Court for pronouncing

sentence upon the defendant, the Court noted the presence of°

iGreg Bower, Prosecuting Attorney for Ada County, Idaho,

Lacey M. Sivak, the defendant, and David Niven, attorney for

the defendant, in court.

The defendant was duly informed as follows: °

1. Of the Information filed against the defendant for the

crimes of ROBBERY, I.C. 18-6501, MULDER IN THE FIRST DEGREE,

I.C. 18-4001, 93 (d), and POSSESSION OF A FIREARM DURING THE

COMMISSION OF BOTH CRTMES, 1.C. 19-2520, committed on or about

April 6, 1981.

2. Of the defendant's conviction, by a jury, on these

charges, September 29, 1981.

The Court, then, after these convictions, ordered a pre-

sentence investigation, and convened a sentencing hearing for the

purpose of hearing all relevant evidence and arguments of counsel

in aggravation and mitigation of the offenses, in accordance with

19-2515 of the Idaho Code, and Rule 33.1 of the Idaho Criminal

Rules; and the Court having entered written findings setting forth

the*statutory aggravating circumstances found, and the mitigating

IMENT OF CONVICTION -18- Filed Avril 4, 1983

e@ eo ws @ « @ w& we ow

~ BB =e wef = — lhlUrflrllU

- Oo CO oN DH B&B YW VY K& OC

JUDG

| Idaho State Board of Correction, under the provisions of

bas OF CONVICTION -19-

circumstances considered; and the Court having found that the

mitigating circumstances found do not outweigh the aggravating

circumstances found so as to make unjust the imposition of the

death penalty; and the Court having found no legal cause or

reason why judgment and sentence should not be pronounced against

the defendant at this time; does render its judgment of conviction

as follows, to-wit:

That, whereas, the defendant having been convicted in this

Court of the crimes of Robbery, I.C. 18-6501, Murder in the First

Degree, I.C. 18-4001, 03 (d), and Possession of a firearm during

the commission of both crimes, I C. 19-2420.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED That the~~--

defendant, Lacey M. Sivak, is guilty of the crimes of Robbery,

I.C. 18-6591, and Possession of a Firearm during the commission

of this crime, I.C. 19-2520, and that he be sentenced to the

19-2513 A of the Idaho Code, for the crime of Robbery, to the

custody of the State Board of Correction for a fixed period of

time for the rest of his natural life, and for the crime of

Possession of a Firearm during the commission of this crime, in

addition to the sentence imposed for Robbery, to be served

consecutively, to the custody of the State Board of Corrections,

for a fixed period of time of not more than 15 years; and that he

be remanded to the custody of the Sheriff of this County to be

delivered to the proper agent of the State Board of Correction in

execution of this sentence. The defendant is to receive credit

for the 205 days spent in the Ada County Jail prior to entry of

this Judgment. Any bail is exonerated.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED That the

defendant, Lacey M. Sivak, is guilty of the crime of Murder in the

First De ree, I.C. 18-4001, 03(d), and Possession of a Firearm

during the commission of this crime, I.C. 19-2520, and that he be

B15

a w WN

JUD

sentenced on these charges to be punished by death by the Idaho

State Board of Correction, on May 20, 1983 at 9:00 A.M., in

the manner prescribed by law, and that he be remanded to the

custody of the Sheriff of this county to be delivered to the

proper agent of the State Board of Correction in execution of

this sentence.

1983.

Dated this 4th day of April,

iON. ROBERT G.

District Judge

ENT OF CONVitTION -20-

B16

~"<°

— wry -

APPENDIX C

IN THE DISTRICT COURT OF THE FOURTH JUDICJAL DISTRICT *’

OF THE STATE OF IDAHO IN AND FOR

THE COUNTY OF ADA

AM shes

THE STATE OF IDAHO. )

)

Plaintiff. )

)

vs. ) INFORMATION

LACEY MN. SIYAK and

RANDALL W. BAINBRIDGE, )

)

Defendants.

JIM C. HARRIS, Prosecuting Attorney in and for the County of Ada, State of Idaho,

who in the name and by the authority of said State, prosecutes in its behalf, in proper person

comes now into said District Court of the County of Ada, and gives the Court to understand and

be informed that _LACEY M. SIVAK and RANDALL W. BAINBRIDGE

XXs) (are) accused by this Information of the crime of Ct.1-R

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