# Petition — SIVAK v. IDAHO (No. 83-6326) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1776%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text 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 ii 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) iv 20 22 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 vi SUPREME COURT OCF THE UNITED STATES OCTOBER TERM, 1983 + yy a + , Se = a ee ; r , 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 er ae 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 hy ~~ y 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 (t a 90) — “ 1) | 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 2A 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 rh made direct findings, beyond a reasonable doubt, that " ft) } D ~ ct 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 Wn G ro if fw fx = Y ot ct eg 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 z considered at sentencing, and that the valid admissible Q 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 , Z 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). 2c REASONS FOR GRANTING THE WRIT Ls 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 nD D 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 i > J» ~ ie) ~ a . , 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 ct i) 3 ct » “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 n 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>» 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. C. 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 AT 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 AY 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. D. 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 3 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. AY 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. II 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. A. 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. B 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: ae 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. C. 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. AZ 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. IV 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 AS "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 a As 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 - A] 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. (c) Although he had the opportunity and the 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. (c) Such victim was murdered in an extremely 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. (c) By circumstances surrounding the commission 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. ee 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. » $. a ocUhClc OUlhC COCOhUCTr FH 26 27 3 32 pur said h ro M 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 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 e 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 os oo 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 = 22 ! 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 13 sentence unon the defendant, the Court noted the presence of 14 Jim C. Harris, Prosecuting Attorney of Ada County, Idaho, 1S Lace’ 14. Sivak, the defendant, and Rolfe Kohne and Klaus Weibe, 16 attorneys for the defendant, in court. 17 The defendant was duly informed as follows: 18 Le Nf the Information filed against the defendant for the 19 crimes of ROBBERY, 1.C. 18-6501, MURDER IN THE FIRST DEGREE, 20 I.C. 18-4901, 93 (d), and POSSESSION OF A FIREARM DURING THE 21 COMMISSION OF BOTH CRIMES, I.C. 19-2520, committed on or about 22 April 6, 1981. 23 z Of the defendant's conviction, by a jury, on these 24 charres, Seotember 29, 1981. 25 The Court, then, after these convictions, ordered a >re- 26 sentence investigation, and convened a sentencing hearing for the 27 Durpose of hearing all relevant evidence and arguments of counsel 28 " agpravation and mitigation of the offenses, in accordance with 29 | 19-2515 of the Idaho Code, and Rule 33.1 of the Idaho Criminal 30 | tte and the Court having entered written findings setting forth 31 - 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, 1 Law, the State on January 26, 1982 at 9:00 a.m., in fe) Qe 4 5 a rv? - - and that he be remanded to the be delivered the ry 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, 11 12 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, 7 22 ” ROBERT C. 4 District Judge 25 . 26 27 28 29 30 3 32 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. 2. . 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 23 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 ~" . 103 Courthouse , ae ’ Boise, Idaho 83702 ‘ili o- Telephone: 384-8750 "me (7) 4 CO. i 7 NA, IGyNm er AE 17. Prtny = frm Or , IN THE DISTRICT COURT OF THE FOURTH JUDICIAL CISTRICT OF THE STATE OF IDARD, IN AND FOR THE COUNTY OF ADA 76182 Plaintiff, ) ase No. INFORMATION, PART iI IMC. HARRIS, Prosecuting Attorney 1n and for the County of Ada, State Idano, who, in the name of and by the authority of said State, prosecutes in its behalf, in proper person, comes now before the District Court of the Fourth Judicial District of tne State of Idahi, in and for nt f Ada, and gives tne Court to understand and to be further informed that, as Part II of the Information on file herein, the defenaant, ACEY IVAK, 18 &@ persistent violator of the law, in that the defendant as heretofore been convicted of the following felonies, to-wit t the said defendant, LACEY M. SIVAK, on or about the 14th day of November, 1977, was convicted of the crime of Burglary in the First Degree, a felony, in the County of Ada, State of Idano, by virtue of that certain ment of Conviction made and entered by Judge Robert M. Rowett. ’T si Tnat tne said defendant, LACEY 4. SIVAK, on or about the 12th day of December, 1977, was Convicted of the crime of Burglary in the First Degree, a felony, in the County of Ada, State of Idano, by virtue of that certain Judgment of Conviction made and entered by Judge Robert M. Rowett Il. That the said defendant, LACEY M. SIVAK, on or about the 12th day of December, 1977, was convicted of the crime of Burglary in the First Degree, a felony, in the County of Ada, State of Idaho, by virtue of that certain Judgment of Conviction made and entered by Judge Robert ™. Rowett. INFORMATION, PART II -20- c2 Piled Hay 7, 1981 WHEREOFRE, the said defendant, having been convicted previously of three felonies, should be considered a persistent violator of the law, and should be sentenced accordingly, pursuant to 19-2514, upon conviction of the charge contained Information. NATED this _ day of May, 1981 - y"( JIM C. HARRIS” INFORSATIO.N:, FART II -21- cs i f{ Idaho Code, Section in Part I of the | - / £8 Set Ada County Pro \ secuting Attorney IN THE DISTRICT COURT OF THE FOURTH JUDICIAL “DISTRICT OF THE STATE OF IDAHO IN AND FOR es T Y OF ADA Ae FP! o> HE COUNTY OF AD ~Z..377 te Stn fy sill THE STATE OF IDAHO. * . IYO Plarntiff, - TI oO w = to-wit: a .22 caliber revolver, in the commission of the crimes alleged in Counts I, il or III above. AMPNDENH TNWRPORMATTON BA ae > we N IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA Py, ee Ld Ly! a of oh THE STATE OF IDAHO er ridlida Cherqolicee Criminal Case No. 191834 VERDICT Defendant. Ne Ne NN Be MURDER IN THE FIRST DEGREE, Count II We, the jury in the above entitled case, find the defendant Not Guilty. i Oe ee ee ¢ + oe oe ee ee = OF TRICT - DIS o E r u JUDICIAI oie c~ x ~ ( oa em Q vA - nm f . - , tz. O t a ° f + ba, t - ) b ts Q t t «L } _ aJ > J Sard ¥ i 4 ~ \, 4, ~ ¥ a) - a & 4 t ba > a) rh) ( + C vD t io 8) “4 Q) €3) be WV) “> ae 4 TY t bu 7 18) © a r m 4 ~ ‘ a. be Qn. “RDICT, COUNT ai VE —_—=ae = « Filed September 29, 4981 cs -1G3- : : YY { l IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF 2 THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA | 3 ee, | Fucd adie “AY ane pa reren 4 | aa: ae 5 || SEP 2. i9et | | ! 6 } ( JON a 7 ' By wlbLe. th die ae Ha pitiac + ; 7 || THE STATE OF IDAHO ) | ) 8 Plaintiff ) : ) | 9 Il vs ) Case No. 101834 ) 10 |] LACEY M. SIVAK, ) VERDICT ) 11 ) Defendant ) ; 12 | ) | | 13 MURDER IN THE FIRST DEGREE, Count III 14 We, the jury in the above entitled case, find the defendant | 15 Guilty. 16 | wi | ! t { } 18 |! ; } | 2 ( {,.e¢ Fan \ -{ 19 | Foreman a 20 | G-29-S | | Date ‘ | 21 || : 22 23 |) 24 | 25 | 26 | 27 | 28 29 ; | 31 | wi VERD rc COUNT y I -lG0- Filed September 29, joo c9 ' ! ‘ | 4 THE DISTRICT COURT OF TI WRI JUDICIAL DISTRICT OF wP mare + j } ' 2 a _ i died iain ae | Pus oa ) DAS AND JR THE COUNTY F ADA a ee | —— | 4 jj [Lic | ' ee ' > I i } 31 32 | VERDICT") | | COUNT 5 MAT ase Filed September 29, + 1 IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND "OR THE COUNTY OF ADA 2 3 | Mo 4 Peg a { vw tf ay = ' “ } or = ~ | 5 ad A *) | MS DBI 6 5 | a wes Fe aes hes ie ses 5 pera ~~ . a wk Bale 7 || THE STATE OF IDAHO ) NET Ree & 8 Plaintiff ) ) 9 vs ) Case No. 101834 | 10 LACEY M. SIVAK, ) Special Findines ) ' “ | ll; ) ’ Defendant ) ! ' 12 i} ) | [ | ade | POSSESSION OF A FIREARM DURING THE COMMISSION OF A CREE, to-wit: 14 | Murder in the First Derree, Coint ITI e, the jury in the above entitled case, find the defendant speciny FINDINGS -1G:i- cll Filed September 29, 4982 or: a ee ee en — eee eet > ~ . * 17 OS nay - INSTRUCTION Murder is the unlawful killing of a human being with malice aforethought. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. All murder which is perpetrated by any kind of wilful, deliberate and _ premeditated killing is murder of the first degree. Any murder conmitted in the perpetration of, or attempt to perpetrate cobbery, is murder of the first degree. All other kinds of murder are of the second degree. Should you find the defendant guilty of the crime of murder, you must determine the degree thereof, and place that determination in an appropriate verdict. STRUCTIONS e -ll- 1 INSTRUCTION 2 3 If you are not satisfied beyond a reasonable doubt that the defendant 4 is guilty of the offense of either first or second degree murder he may, 5 however, be found guilty of any lesser included offense, the commission of 6 which is necessarily included in such offense, if the evidence is sufficient 7 to establish his guilt beyond a reasonable doubt. 8 The offense of either first or second degree murder necessarily in- 9 cludes the lesser included offense of manslaughter. 10 Should you find the defendant guilty of either first or second degree 11 murder you need not consider whether or not he is puilty of the lesser 12 included offense of manslaughter. JURY INSTRUCTIONS -12- OO Se ee ee ee ee JURY nifrmvcrroxs -13- eneeinaas et ot tee INSTRUCTION The State has charged the defendant with the First Degree Murder of one verson, namely, Dixie Bell Wilson. It has done that by alleging in Counts II and III distinct and separate theories as to how that murder was committed. In Count II the State alleges the First Degree Murder was committed by wilfully, unlawfully, deliberately, with premeditation and with malice aforethought murdering one Dixie Bell Wilson. In Count III the State alleges the Murder was committed in the perpetration of a robbery. You may find the Defendant guilty of either one or both of these counts. You may find the defendant not guilty of either one or both of these counts. If you find the defendant not guilty of both counts of First Degree Murder as charged in Counts II and III you must then decide if the defendant is guilty of the crime of Murder in the Second Degree, a lesser included crime under Count II. C14 All persons concerned in the commission of a crime, and whether they directly commit the act constituting the offense or aid and abet in its commission, or, not being present, have advised and encouraged its commission, are principals in any crime so committed, and are equally guilty thereof. JURY INSTRUCTIONS -15- C15 No: i eo a a a ee ee ee ee ee ana wn & YB NY —- SO 17 INSTRUCTION In a crime, or crimes, such as that charged, there must exist a union or joint operation of act or conduct and criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violaté the law. Where a person intentionally does that which the law declares to be a crime, he is acting with criminal intent, even though he may not know that his act or conduct is unlawful. JURY INSTRUCTIONS -18- C16 GY we oruet Kor af tae igen ag ere ay oa i one av Meth. ghey, Live Contret- tir? Y pt Bab a ong yniurdiv On pp pnp ily of wrond Ugur nuded = fe SC pm Dileet 8/244 -26- Dated September 28, 198 IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA HON. ROBERT G. NEWHOUSE September 29, 1981 DISTRICT JUDCE DATE COURT MINUTES ) The State of Idaho, Dial ee ) Plaintifé vs. Case No. 101834 ) LACEY M. SIVAK, Defendant. Appearances: Tape No. 0337 0159 thr 0231 Jim C. Harris Counsel for State Ada County Prosecuting Attomey Rolf Kehne, Klaus Weibe Counsel for Defendant Ada County Public Defenders 9:10 a.m Jury present in courthouse to continue deliberations. 10:30 a.m. Jury informs bailiff, Earl Cohick, they have reached a verdict. 11:24 a.m. Court convened. Jury present, roll call waived. Defendant present, in custody. atIite lawn buy a new starter. Yeah. And you, you mean your van needed a new starter put into it before it would even go? Yeah. «$ i . Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Fainbridge: Killeen: Bainbridge: was that your motivation , morning, to buy the new starter? And so, Yeah, I was going to go get one. Okay. Where did you... I was going to see what the trade-in was on the old one; that's why I took it with me. Okay. Where did you g0? That 1 couldn't recall. I have the receipt at home. Why don't you describe where you went. Okay.... To the best of you ability... It was over; I can't. Garden City? Boise? I don't think it was in Garden City. Which direction did you go on Chinden? To go to this place? We went to the right; we went away from Boise. Okay, you went to the right, down Chinden? Yeah. was at. What church? The church that he went to. Oh, the church that he went to? Yeah. Are we talking about Cole Village? A little shoppin center? No, it isn't a shopping center there, just a little store where you buy used parts, stufr like that. ah~ D6 | Where that church was at. Over by where that church There was an auto place over there, a few blocks. (107) Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbrige: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Maybe ='s on Ustick. Well, right by my front door, going out the front door, there are those lights by the door...weil behind one of them is that yellow little slip of paper sitting right there. Oh, out front; not even inside the house’? Well, it was inside the iiouse, but I'm saying, in the house; going outside, by the light there is a little... How much did that item cost? It was about thirty-seven, is the best I can remember. Who paid for it? He give me the money to put in it, put on it, Where did he get the money? I don't know, he had it, he had it with hin. He had it with him? That's what I presumed he got from the gas station. Part of the money he took fromthe register? (indiscernible) Did he take all of the money out of the register? Or did you? Well, see, we've got a lot of Latent prints and we are in the process right now of checking them. Ain't none of mine on there. And that's... I didn't do nothing. Well, that's what I want to find out from you right now because if it comes back later on. Well prints, I ain't got no prints. I didn't want to be involved. I wasn't even, intentionally, I didn't even know what was going on so I never touched nothing. You never touched nothing. Are you sure of that? . D7 Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: I'm 8 & Are you positive you never touching anything? I'm positive cause if you find any prints, it's pretty accidental cause I didn’t do nothing. Okay. Cause I didn't even know what was going on. You say. What is the closest you ever got to her?...to Dixie that day? A good 2 - 2 feet. I didn't even come near her. Did you ever touch her? Not that day, no. When he was stabbing her and shooting her, what was the closest you ever came to her? I was about 4 - 5 feet away from her. Four or five! I wasn't even close to her cause the thought that was going through my mind wasn't even good cause I liked the lady. How would you explain the blood on your clothing? On my clothing? Yeah. I don't think I got any. What if we said that there was blood on your clothing and it was hers. I would ask you where cause I don't, I didn't even touch her. I didn't have no blood. So if we did find out, this is what I am asking, if we did find blood on your clothing, there would be no way you could figure out how it got there? of. Dt Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen: Bainbridge: Killeen [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1776%3A1. Public record. Not legal advice.