Petition — GIBSON v. IDAHO (No. 83-6611)

Supreme Court brief1983

Ask Donna

What actually matters in this document.

Text

IN THE ‘

SUPREME COURT OF THE UNITED STATE 1PH 931

OCTOBER TERM, 1983

THOMAS HENRY GIBSON, Petitioner,

vs.

STATE OF IDAHO, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF

THE STATE OF IDAHO

MICHAEL J. VRABLE

307 Elder Building

Coeur d'Alene, ID 83814

Counsel for Petitioner

Authorities Cited. .

Opinion Below. ...

Jurisdiction ....

Question Presented .

INDEX

Constitutional & Statutory

Statement of the Case.

Provisions Involved

Reasons for Granting the Writ:

1. The use of evidence of another crime

of which Petitioner was acquitted violates

the principle of double jeopardy.

2. Idaho's statutory procedure for im-

posing a death sentence, by judge rather

than by jury, violates the Sixth and

Eighth Amendments of the United States

Constitution.

3. The evidence of Petitioner's involve-

ment in the murder was not sufficiently

aggravating to justify the death sentence

under the principles of Enmund v. Florida,

458 U.S. 782 (1982) and Gregg v. Georgia,

428 swe

Comeiusiee ic |... a

Appendix A:

Findings of the Court in Considering

Death Penalty Under Section 19-2515,

Idaho Code...

Appendix B:

1563 (1976).

Opinion of the Idaho Supreme Court.

Appendix C:

Remittitur. ..

Appendix D:

Order Denying Petition for Rehearing.

Appendix E:

Death Warrant Upon Remittitur .

Appendix Fr

Brief of Appellant.

A-1-20

B-1-30

CITATIONS

Cases

Adams v. Texas, 448 U.S. 38 (1980)

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

Enmund v. Florida, 458 U.S. 782 (1982)

Fitzpatrick v. State, Mont. , 638

P.2d 1002 (1981)

Furman v. Georgia, 408 U.S. 238 (1972)

Gideon v. Wainwright, 372 U.S. 335 (1963)

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

Jenkins v. State, 147 G.App. 21, 248 S.E.2d

33 (1978)

Ladd v. State, 568 P.2d 960 (Alaska, 1977)

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

People v. Atkins, 96 Mich.App. 672, 293

N.W.2d 671 (1980)

People v. Corbeil, 77 Mich.App. 691, 259

N.W.2d 193 (1977)

People v. Milano, 59 A.D.2d 852, 399 N.Y.S.

2d 226 (1977)

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

State v. Creecn, Idaho , 670 P.2d

462 (1983)

State v. Gretzler, 135 Ariz. 4

1 (1983) cert. denied U

S.Ct. 2444 (1983)

State v. Little, 87 Ariz. 295, 350 P.2za

756 (1960)

State v. Moore, 210 Neb. 457, 316 N.W.2d

33 (1982) cert. denied 456 U.S. 984

(1982)

State v. Perkins, 349 So.2d 161 (Fla. 1977)

State v. Quinn, 290 Or. 383, 623 P.2d 630

(1981)

Page

19,

CITATIONS (Cont'd.)

Cases Page

State v. Simants, 197 Neb. 549, 250 N.W.2d

881 (1977) 16

Stuart v. State, 561 S.W.2d 181 (Tex.Cr.

App., 1978) 15

United States v. Keller, 624 F.2d 1154

{3d Cir. 1980) 13, 14

United States v. Mespoulede, 597 F.2d 329

(2d Cir. 1979) 13, 14

Wingate v. Wainwright, 464 F.2d 209 (5th

Cir. 1972) 13, 14

Witherspoon v. North Carolina, 391 U.S.

510 (1968) 19, 20,

Woodson v. North Carolina, 428 U.S. 280

(1976) 18, 19

Other Authorities:

Annot., Admissibility of evidence as

to other offense as affected by

defendant's acquittal of other

offense, 86 ALR2d 1132 (1962)

Supp. 1983) 13

S. Kauter, Brief Against Death: More

on the Constitutionality of Cap-

ital Punishment in Oregon, 17

Will. L. Rev. 629 (1981) 21

Note, Expanding Double Jeopardy: Collat-

eral Estoppel and the Evidentiary

Use or Prior Crimes of Which the

Defendant has been Acquitted, 2

Fla. St. U. L. Rev. 511 (1974) 13

iii

RECEIVED

APR 23.1984

Orriut Ur tHe CLERK

IN THE | SUPREME COURT. U.S.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

NO.

THOMAS HENRY GIBSON, Petitioner,

vs.

STATE OF IDAHO, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF

THE STATE OF IDAHO

« The petitioner, Thomas Henry Gibson, respectfully

prays that a writ of certiorari issue to review the

judgment and opinion of the Supreme Court of the State

of Idaho, entered in this proceeding on December 15,

1983, for which rehearing was denied on February 14,

1984.

OPINION BELOW

The opinion of the Idaho Supreme Court appears in

the Appendix hereto, Appendix "B"1-30, ahd is reported

as State of Idaho v. Thomas Henry Gibson, 675 P.2d 33

(Idaho 1983).

JURISDICTION

The judgment of the Supreme Court of the State of

Idaho was entered on December 5, 1983. A timely peti-

tion for rehearing was denied on February 14, 1984.

This court's jurisdiction is made under 28 U.S.C.

§1257(3). Petitioner having asserted below and assert-

ing herein deprivation of rights secured by the Consti-

tution of the United States. The certificate of mail-

ing of counsel of record is forwarded to the court sim-

ultaneously herein.

QUESTION PRESENTED

1. Did the use of evidence of another crime of

which petitioner was acquitted, violate the principle

of double jeopardy?

2- Does Idaho's statutory procedure for imposing

a death sentence by judye rather than by jury violate

the Sixth and Eighth Amendments of the United States

Constitution?

Je Was the evidence of petitioner's involvement

in the murder sufficiently aggravating to justify the

death sentence under the principles of Enmund v. Flor-

ida, 458 U.S. 782 (1982) and Gregg v. Georgia, 428 U.S.

1563 (1976)?

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 statu-

tory capital punishment scheme, which provides in per-

tinent part that the death penalty decision shall be

reached by the court rather than the jury. These in-

clude:

Idaho Code §19-2515:

(a) After a plea or verdict of

guilty, where a discretion is con-

ferred upon the court as to the ex-

tent of the punishment, the court,

upon the oral or written suggestion

of either party that there are cir-

cumstances which may be properly

taken into view either in aggrava-

tion or mitigation of the punishment,

may, in its discretion, hear the

same summarily, at a specified time,

and upon such notice to the adverse

party as it may direct.

(b) Where a person is convict-

ed of an offense which may be punish-

able by death, a sentence of death

shall not be imposed unless the

court finds at least one (1)

statutory aggravating circum-

stance. Where the court finds

a statutory aggravating circum-

stance the court shall sentence

the defendant to death unless

the court finds that mitigating

circumstances which may be pre-

sented outweigh the gravity of

any aggravating circumstance «

found and make imposition of

death unjust.

the death penalty may be imposed,

the court shall, after conviction,

order a presentence investigation

to be conducted according to such

procedures as are prescribed by

law and shall thereafter convene

a sentencing hearing for the pur-

pose of hearing all relevant evi-

dence and arguments of counsel in

aggravation and mitigation of the

offense. At such hearing, the

state and the defendant shall be

entitled to present all relevant

evidence in aggravation and miti-

gation. Should any party present

aggravating or mitigating evidence

which has not previously been dis-

closed to the opposing party or

parties, the court shall, upon re-

quest, adjourn the hearing until

the party desiring to do so has

had a reasonable opportunity to

respond to such evidence. Evi-

dence admitted at trial shall be

considered and need not be repeat-

ed at the sentencing hearing. Evi-

dence offered at trial but not

admitted may be repeated or ampli-

fied if necessary to complete the

record.

(d) Upon the conclusion of the

evidence and arguments in mitiga-

tion and aggravation the court shall

make written findings setting forth

any statutory aggravating circum-

stance found. Further, the court

shall set ferth in writing any miti-

gating factors considered and, if the

court finds that mitigating circum-

stances outweigh the gravity of any

aggravating circumsances found so as

to make unjust the imposition of the

death penalty, the court shall detail

in writing its reasons for so finding.

(e) Upon making the prescribed

findings, the court shall impose

sentence within the limits fixed by

law.

(f£) The following are statutory

aggravating circumstances, at least

one (1) of which must be found to

exist beyond a reasonable doubt be-

fore a,gsentence of death can be im-

posed:

(1) The defendant was previous-

ly convicted of another murder.

(2) At the time the murder was

committed the defendant also committed

another murder.

(3) The defendant knowingly

created a great risk of death to many

persons.

(4) The murder was committed for

remuneration or the promise of remun-

eration or the defendant employed

another to commit the murder for re-

muneration or the promise of remunera-

tion.

(5) The murder was especially

heinous, atrocious or cruel, manifest-

ing exceptional depravity.

(6) By the murder, or circum-

stances surrounding its commission,

the defendant exhibited utter disre-

gard for human life.

(7) The murder was one defined as

murder of the first degree by section

18-4003, Idaho Code, subsections (b),

(c), (d), (e), or (£), and it was accom-

panied with the specific intent to

cause the death of a human being.

(8) he defendant, by prior con-

duct or conduct in the commission of

the murder at hand, has exhibited a

propensity to commit murder which will

probably constitute a continuing threat

to society.

(9) The murder was comnitted

against a former or present peace

officer, executive officer, officer

of the court, judicial officer or

prosecuting attorney because of the

exercise of official duty.

(10) The murder was committed

against a witness or potential wit-

ness in a criminal or civil legal

proceeding because of such proceed-

ing.

Idaho Code §19-2827:

Whenever the death penalty is im-

posed, and upon the judgment be-

coming final in the trial court,

the sentence shall be reviewed on

the record by the Supreme Ccirt of

Idaho. The clerk of the trial ccurt,

within ten (10) days after receiving

the transcript, shall transmit the

entire record and transcript to the

Supreme Court of Idaho and to the

attorney general together with a

notice prepared by the clerk and a

report prepared by the trial judge

seting forth the findings required

by section 19-2515(d), Idaho Code,

and such other matters concerning

the sentence imposed as may be re-

quired by the Supreme Court. The

notice shall set forth the title and

docket number of the case, the name

of the defendant and the name and

address of his attorney, a narrative

statement of the judgment, the

offense, and punishment prescribed.

The report may be in the form of a

standard questionaire prepared and

supplied by the Supreme Court of

Idaho.

(b) The Supreme Court of Idaho

shall consider the punishment as well

as any errors enumerated by way of

appeal.

the court shall determine:

(1) Whether the sentence of

death was imposed under the influence

of voassion, prejudice, or any other

arpitary factor, and

(2) Whether the evidence supports

the judge's finding of a statutory

aggravating circumstance from among

those enumerated in section 19-2515,

Idaho Code, and

(3) Whether the sentence of

death is excessive or disproportion-

ate to the penalty imposed in similar

cases, considering both the crime and

the defendant.

(d) Both the defendant and the

state shall have the right to submit

briefs within the time provided by

the court, and to present oral argu-

ment to the court.

(e) The court shall include in

its decision a reference to «those

Similar cases which it took into con-

sideration. In addition to its

authority regarding correction of

errors, the court, with regard to re-

view of death sentences, shall be

authorized to:

(1) Affirm the sentence of

death; or

(2) Set the sentence aside and

remand the case for resentencing by

the trial judge based on the record

and argument of counsel.

(f) The sentence review shall

be in addition to direct appeal, if

taken, and the review and appeal shall

be consolidated for consideration.

(g) The Supreme Court shall

collect and preserve the record of

all cases in which the penalty of

death was imposed from and including

the year 1975.

Idaho Code §18-4001:

Murder is the unlawful killing of a

human being with malice aforethought

or the intentional application of tor-

ture to a human being, which results

in the death of a human being. Torture

is the intentional infliction of ex-

treme and prolonged pain with the in-

tent to cause suffering. It shall also

be torture to inflict on a human being

extreme and prolonged acts of brutal-

ity irrespective of proof of intent to

cause suffering. The death of a human

being caused by such torture is murder

irrespective of proof of specific in-

tent to kill; torture causing death

shall be deemed the equivalent of in-

tent to xill.

Idaho Code §18-4002:

Such malice may be express or implied.

It is express when there is manifested

a deliberate intention unlawfully to

take away the lfe of a fellow creature.

It is implied when no considerable pro-

vocation appears, or when the circum-

stances attending the killing show an

abandoned and malignant heart.

Idaho Code §18-4003:

(a) All murder which is perpet-

uated py means of poison, or lying in

wait, or torture, when torture is in-

flicted with the intent to cause suffer-

ing, to execute vengeance, to extort

something from the victim, or to satisfy

some sadistic inclination, or which is

perpetuated by any kind of wilful, de-

liberate and premeditated killing is

murder of the first degree.

(b) Any murder of any peace offi-

cer, executive officer, officer of the

court, fireman, judicial officer or

prosecuting attorney who was acting in

the lawful discharge of an official duty,

and was known or should have been known

by the perpetrator of the murdr to an

officer so acting, shall be murder of the

first degree.

under a sentence for murder of the first

or second degree, including such persons

on parole or probation from such sentence,

shall be murder of the first degree.

(d) Any murder committed in the

perpetration of, or attempt to perpetrate,

arson, rape, robbery, burglary, kidnapping

Or mayhem is murder of the first degree.

(e) Any murder committed by a per-

son incarcerated in a penal institution

upon a person employed by the penal insti-

tution, another inmate of the penal insti-

tution or a visitor to the penal institu-

tion shall be murder of the first degree.

(f£) Any murder committed by a per-

son while escaping or attempting to escape

from a penal institution is murder of the

first degree.

(g) All other kinds of murder are of

the second degree.

Idaho Code §18-204:

All persons concerned in the commission

of a crime, whether it be a felony or

misdemeanor, and whether they directly

commit the act constituting the offense

or aid and abet in its commission, or,

not being present, have advised and en-

couraged its commission, and all persons

counseling, advising, or encouraging

children under the age of fourteen (14)

years, lunatics, or idiots, to commit

any crime, or who, by fraud, contrivance,

« or force, occasion the drunkenness of

another for the purpose of causing him

to commit any crime, or who, by threats,

menaces, command or coercion, compel

another to commit any crime, are princi-

pals in any crime so committed.

STATEMENT OF THE CASE

The basic facts of the instant case were adequate-

ly expressed by the Idaho Supreme Court, as follows:

The circumstances surrounding the crime

are largely without challenge except as to the

location of and who did the actual killing.

Some of themost damaging testimony came from

the defendant Gibson himself who testified at

trial. Gibson was charged with the first de-

gree murder of Kimberly Ann Palmer. Palmer

and a friend, Scott Currier, were in Spokane,

Washington, where Currier had met members of

a motorcycle group. On June 19, 1980, Palmer

and Currier left for a camping trip in a blue

and white van. On Friday, June 20, Currier

and Palmer checked into a Spokane motel which

was located a short distance from the residence

of Donald Paradis; they immediately checked

out of the motel, with Currier stating that

his guns had been stolen, that he knew who

did it, and that he was going to retrieve

them.

Gibson testified that in the early

morning hours of June 21, he, Paradis, and

Larry Evans, among others, were at the Paradis

residence when Currier and Palmer arrived. A

fight erupted and Gibson testified that he

watched Paradis beat Currier to death with a

baseball bat. Gibson testified that he left

for a short time, and upon returning found

Currier lying on the floor dead or dying.

Gibson testified that he saw Kimberly Palmer

running out of the house and “as she ran by

me I grabbed her, pulled her down to the floor

and hit her and knocked her out" because he

was afraid she would be calling for help.

Gibson testified that he then moved Palmer

to the kitchen, put her on the floor, took

her pulse, determined that she was still

alive, and related that to Larry Evans and

that Evans then choked Palmer to death.

Gibson testified that he watched the choking

and thereafter determined that Palmer was

dead.

Gibson testified that he and another

placed Currier's body in a blue sleeping bag

while Paradis and Evans placed the Palmer

body in a red sleeping bag. The bodies were

then placed in the blue and white van, which

was driven to a remote area just outside of

Post Falls,«Idaho. Other testimony indicated

that at approximately 6:30 a.m. that Saturday

morning, the blue and white van was observed

driving up a steep mountain road in a sparsely

populated area south of Post Falls, Idaho.

Two or three men were in that van, one of

whom was wearing a distinctive cap. Gibson

testified that the blue and white van stalled

going up a hill, rolled backwards and over-

turned. Gibson stated that he stayed in the

van while Paradis moved the body of Kimberly

Palmer and Evans moved the body of Scott

Currier. The van was then pushed over, aban-

doned, and Gibson, Paradis and Evans walked

back to Post Falls. Gibson stated that he

‘was carrying a rifle rolled up in a blue

blanket.

Other testimony placed three men of the

general description of Gibson, Paradis and

Evans walking down that road towards Post

Falls, Idaho that same morning. The men were

all strange to the area and one was carrying

a rolled up blue blanket. Three men of the

same description were observed entering Post

Falls that morning, and they were questioned

by the police in Post Falls. One of those

men was identified as Gibson and he was

carrying a rolled up bl blanket. Another

of the three men was identified as Paradis.

Later that day, the blue and white van

was seen turned on its side with debris

scattered just off that mountain road. Upon

investigation, the body of Kimberly Palmer

was found face down in a small stream nearby

and the body of Scott Currier was found in-

side a sleeping bag. Currier's body was

bound with pieces of terrycloth and had

been bleeding. A distinctive belt buckle

worn by Currier had been cut off. Palmer

was found to have been strangled to death.

In the early morning hours of Sunday,

June 22, the Paradis residence in Spokane

was severely damaged by a fire caused by

arson. In the basement of that house was

found a rolled up rug, in which were found

Currier's missing belt buckle, a lawn dart

with traces of blood which matched puncture

wounds in Currier's back, and a piece of

blue terrycloth which matched the terrycloth

found with the body of Currier.

On Monday, June 23, Gibson and a friend

left the area; they were apprehended in north-

ern California on June 25. Gibson gave a

false statement to California authorities be-

fore being returned to the State of Washington

where he was charged with the murder of Scott

Currier. Following trial, he was acquitted

of that charge and extradited to Idaho for

the murder of Kimberly Palmer.

At trial, a major issue was raised con-

cerning Idaho's jurisdiction over Gibson and,

therefore, much of the State's case consisted

of autopsy evidence which showed that the

varying state of Lody decomposition indicated

that Currier had been killed some hours before

Palmer, and water in Palmer's lungs indicated

that Palmer had actually been killed in the

streambed in Idaho. That evidence, of course,

contradicted of the testimony of Gibson that

Palmer had been killed in the Paradis’ resi-

dence in the State of Washington.

The State of Washington tried Gibson for the mur-

10.

der of Scott Currier. He was acquitted. The State of

Idaho then prosecuted Gibson and Donald Paradis for the

murder of Kimberly Palmer. After separate trials, both

were convicted of first degree murder.

Under Idaho's capital punishment statute, whoever

acts as the trial judge determines whether the death

sentence is imposed. Briefly stated, the statute,

Idaho Code §19-2515, requires the trial judge to find a

statutorily defined aggravating circumstance. The find-

ing must be beyond a rea:3ionable doubt. If the judge

believes the aggravating circumstance exists, the death

sentence is to be imposed, unless the judge believes

there is a mitigating circumstance that “outweighs the

gravity of any aggravating circumstance”.

The trial judge found an aggravating circumstance

in Gibson's case. The judge believed that Gibson, "by

murder, and the circumstances surrounding its commis-

sion", exhibited utter disregard for human life. Appen-

dix "A"-1-20.

In his brief to the Idaho Supreme Court, Petition-

er asserted that a defendant is entitled to jury parti-

cipation in the capital sentence process. Appendix

"F", Brief of Appellant, pp. 18-38. The Idaho Supreme

Court rejected the analysis. "Our late cases of State

v. Sivak, Idaho , and State v. Creech,

Idaho , 670 P.2d 463 (Id. 1983), are dispositive.”

Appendix "B", p. 12.

is #

REASONS FOR GRANTING THE WRIT

1. The use of evidence of another

crime of which Petitioner was acquit-

ted violates the principle of double

jeopardy.

The issue presented herein is one of constitution-

al significance which requires this Court's resolution.

The basic question is whether evidence of an offense

the defendant was acquitted of may be used against him

in a subsequent prosecution.

Evidence of Scott Currier's murder was a major

part of the prosecutor's case against Thomas Gibson.

Physical evidence found at the Washington murder scene,

as well as photographs of Currier's body, were intro-

duced as evidence. The same evidence had been used in

the Washington trial.

Prior to trial, Gibson moved the trial judge to

exclude all evidence of Scott Currier's murder. No

ruling was made until defendant renewed it by way of an

objection at trial. The trial judge denied the motion.

Throughout the trial, objections were made relating to

the murder of Scott Currier: the admission of Plain-

-iff's Exhibits 92, 93, and 95, pictures of Currier's

body, Tr. Vol. II, p. 341, p. 581, the cloth found

around Currier's neck , Plaintiff's Exhibit 147, and

cloth found at the Dearborn residence in Spokane,

Plaintiff's Exhibit 149, Tr. Vol. IV, p. 694, hair

found at the Dearborn residence, Plaintiff's Exhibit 60

and sample of Scott Currier's hair, Plaintiff's Exhibit

145, Tr. Vol. IV, p. 697, Currier's jeans and belt,

Plaintiff's Exhibits 13 and 12, Tr. Vol. IV, p. 703,

i2.

and finally autopsy pictures of Currier, Plaintiff's

Exhibits 142, 143, and 144, Tr. Vol. IV, pp. 779-780.

Two conflicting points of view have developed

under Ashe. See, Admissibility of evidence as to other

offenses as affected by defendant's acquittal of that

offense, 86 ALR2d 1132 (1962, Supp. 1983). As express-

ed in Wingate v. Wainwright, 464 F.2d 209, 215 (5th

Cir. 1972):

It is fundamentally unfair

and totally incongruous with our

basic concept of justice to per-

mit the sovereign to offer proof

that a defendant committed 2

specific crime which a jury..

has concluded he did not commit.

Otherwise a person could never

remove himself from the blight

and suspicious aura which

Surrounds an accusation...

Cf. Note, Expanding Double Jeopardy: Collateral Estop-

pel and the Evidentiary Use of Prior Crimes of Which

the Defendant has been Acquitted, 2 Fla. St. U.L. Rev.

511 (1974).

Similarly, the Third Circuit Court of Appeals has

favored broad application of collateral estoppel in

criminal cases. United States v. Keller, 624 F.2d

1154, 1160 (3d Cir. 1980). Accord United States v.

Mespoulede, 597 F.2d 329 (2dCir. 1979). In Keller, a

defendant charged with conspiracy to distribute PCP had

been acquitted of participating in other drug trans-

actions after the end of the conspiracy. As the court

noted:

The Government contends that

collateral estoppel is inapplica-

ble because "[i]t is not the

result of the prior case that was

material, but rather the facts

which were disputed." Government

2D,

————_— se

Brief, page 1l. Thus, the Govern-

ment would have us hold that the

prior conduct is admissible not-

withstanding the determination by

the earlier fact finder that the

defendant's state of knowledge and

level of participation did not

satisfy the requirement of the

criminal law. See United States

v. Phillips, 401 F.2d at 305. We

decline to so hold since that would

eviscerate the effect of the prior

acquittal.

62% F.26 at i160. In the case at bar, the State made

an argument quite similar to that presented in Keller.

As the Second Circuit Court of Appeals west ss th

respect to Wingate v. Wainwright:

The court held that it was

irrelevant that the relitigated

issue was an "evidentiary" fact

rather than an “ultimate” fact

in the new triai. As in the

case before us, the relitigated

facts were offered into evidence

to prove that the defendant

committed a different offense,

but failure to prove the prior

criminal acts beyond a reasonable

doubt would not preclude a con-

viction. The essential point is

that the defendant must defend

against charges or factual allega-

tions that he overcame in the

earlier trial, just as if that

trial had never taken place.

United States v. Mespoulede, 597 F.2d 329, 335 (2d Cir.

1979) (citation omitted, emphasis added). As the court

also stated: "An acquittal in a criminal case would no

longer serve to clear a man's name; rather, a perman-

ent stigma would remain, a pall cast over his reputa-

tion." 597 F.2d at 335, fn. 9

The other view has been expressed by the Ninth

Circuit Court of Appeals as follows:

[W]e perceive no compelling

reason to engraft upon this rule

a limitation that would prevent

14.

the introduction of such evidence

in any instance simply because of

the added factor of acquittal.

To the contrary, we believe that

despite the acquittal the matter

of admission or rejection is and

should be addressed to the sound

discretion of the trial judge,

lowers the scale to the side of

inadmissibility of such evidence.

State v. Little, 87 Ariz. 295, 350 P.2d 756, 763 (1960).

Accord State v. Perkins, 349 So.2d 161, 163 (Fla.

1977).

Other jurisdictions have concluded that the fact

of acquittal does not impact the admissibility of the

prior offense but relates to the weight of the evi-

dence. See Jenkins v. State, 147 Ga.App. 21, 248 S.E.

2d 33 (1978); Ladd v. State, 56f P.2d 960 (Alaska,

1977). Thus, even if the evidence of a prior crime is

material to the crime charged, it must be excluded

where its prejudicial impact substantially outweighs

its probative vaiue. People v. Corbeil, 77 Mich.App.

691, 259 N.W.2d 193, 195 (1977). Accord People v.

Atkins, 96 Mich.App. 672, 293 N.W.2d 671, 675-676

(1980); People v. Milano, 59 A.D.2d 852, 399 N.Y.S.2d

226, 227 (1977); Stuart v. State, 561 S.W.2d 181, 182

(Tex.Cr.App., 1978).

In light of the conflict among various jurisdic-

tions, it is important that this Court resolve the

question.

2. Idaho's statutory procedure

for imposing a death sentence, by

judge rather than by jury, violates

the Sixth and Eighth Amendments of

the United States Constitution.

The issue presented herein is of constitutional

15.

significance and requires this Court's consideration.

Of the five states which gave the jury no formal role

in the capital sentencing scheme--Arizona, Idaho,

Montana, Nebraska, and Oregon--only Oregon has con-

cluded that judicial sentencing is unconstitutional

[State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981)]).

Ariz. Rev. Stat. Ann. §13-703 was upheld in State v.

Gretzler, 135 Ariz. 42, 659 P.2d 1 (1983) cert. denied

U.S. , £03 S.Ct. 2444 (1983) while Mont. Code

Ann. §46-18-301 was ruled constitutional in Fitzpatrick

v. State, Mont. , 638 P.2d 1002 (1982), after

remand, Mont. » €71 P.2d 1 (1983). Nebraska's

judicial sentencing scheme has been ruled constitution-

al by its state supreme court as well. State v. Moore,

210 Neb. 457, 316 N.W.2d 33 (1982) cert. denied 456

U.S. 984 (1982); State v. Simants, 197 Neb. 549, 250

N.W.2d 881 (1977).

The Idaho Supreme Court, commencing with State v.

Creech, __ Idaho ___, 670 P.2d 463 (1983), has held

"that there is no federal constitutional requirement of

jury participation in the sentencing process and that

the decision to have jury participation in the sentenc-

ing process, as contrasted with judicial discretion

sentencing, is within the policy determination of the

individual states."

The conflict among the states which permit judi-

cial sentencing is not the sole justification for this

Court's exercise of jurisdiction in this matter. The

question of extending the Sixth Amendment right to

capital sentencing is one of great importance to the

16.

several convicts awaiting administration of the death

sentence in the states of Idaho, Arizona, Montana, and

Nebraska. Further, the previous decisicns of this

Court reflect the error in reasoning of those courts

which have upheld the judicial sentencing scheme.

The Sixth Amendment to the Constitution of the

United States assures that

{T]he accused shall enjoy the right

to a speedy and public trial, by an

impartial jury,...

Since the trial is not terminated until the sentencing

process and in light of the serious nature of capital

sentencing, defendant asserts that his constitutional

rights were violated when the trial judge determined

sentencing in this capital case.

The issue of jury participation in capital sen-

tencing was raised but not addressed by the United

States Supreme Court in Lockett v. Ohio, 438 U.S. 586

(1978). Justice Rehnquist did discuss the jury's role

in his dissenting opinion, stating:

{T]his Court "has never suggested

that jury sentencing is constitu-

tionally required." No majority

of this Court has ever reached a

contrary conclusion, and I would

not do so today.

438 U.S. at 633.

Justice Rehnquist's position was based on the

Court's earlier statement that while “jury sentencing

in a capital case can perform an important societal

function...it has never [been) suggested that jury

sentencing is constitutionally required." Proffitt v.

Florida, 428 U.S. 242, 252 (1976). The significance of

17.

this passage from Proffitt is reduced since the Florida

procedure considered in Proffitt did not completely

exclude the jury from the capital sentenc}g process.

The jury was responsible for recommending either life

imprisonment or the death penalty, although its role

was only advisory. FSA §921.141l1. As a result, the

implication that no constitutional provision mandates

jury participation in capital sentencing should be

viewe< as dicta. Further, Justice Rehnquist's analysis

of the Proffitt language must be viewed in light of his

consistent dissent from the Court's close scrutiny of

death penalty legislation. See Lockett v. Ohio,

Supra; woodson v. North Carolina, 428 U.S. 280, 308

(1976); Furman v. Georgia, 408 U.S. 238, 265 (1972).

The fact that the vast majority of states require jury

participation in capital sentencing carries some weight

in the determination whether jury involvement at sen-

tencing is constitutionally required. Gregg v.

Georgia, 428 U.S. 153, 179-181 (1976); Gideon v. Wain-

wright, 372 U.S. 335, 345 (1963).

In 1972, this Court declared the Georgia and Texas

capita’ punishment statutes unconstitutional in Furman

v. Georgia, supra. The Court ruled that the procedures

by which the defendants were selected for the death

penalty were constitutionally inadequate because of the

jury's unfettered discretion to impose the death pen-

alty. Following Furman, more than two-thirds of the

states reenacted some form of the death penalty. The

Court's first opportunity to review these new statutes

came in 1976.

18.

In Gregg v.Georgia, supra, this Court acknowledged

the role of the jury in capital sentencing. As stated:

Thus, an assessment of contemporary

values concerning the infliction of

a challenged sanction is relevant

the application of the Eighth

Amendment.

428 U.S. at 173. The jury role in capital sentencing

is necessary "to maintain a link between contemporary

community values and the penal system--a link which the

determination of punishment could hardly reflect ‘the

evolving. standards of decency that mark the progress of

a maturing society.'" 428 U.S. at 190 (citation

omitted).

Since the Eighth Amendment stands to assure that

the State's power to punish is "exercised within the

limits of civilized standards," the jury is needed to

help set those standards. Woodson v. North Carolina,

428 U.S. 180, 188 (1976). In Woodson, the Court de-

scribed three indicia of societal values with respect

to sentencing--history and traditional useage, legisla-

tive enactments, and jury determinations. Id. As

Stated at page 295:

In Witherspoon v. Illinois, 391

U.S. 510 (1968), the Court ob-

served that “one of the most

impor*.ant functions any jury can

perform" in exercising its dis-

cretion to choose “between life

imprisonment and capital punish-

ment" is "to maintain a link be-

tween contemporary community

values and the penal system."

Id. at 519, and n. 15.

The reference to Witherspoon underscores the fun-

damental nature of the jury's involvement in capital

punishment sentencing schemes. At issue in Witherspoon

19.

was whether a juror could be dismissed for cause after

indicating on voir dire that he might be hesitant to

return a death verdict. Ruling that such a process de-

prived the defendant of an impartial jury, this Court

noted:

And one of the most important

functions any jury can perform

in making such a selection, [be-

tween life and death] is to

maintain a link between contem-

porary community value and the

penal system....

Witherspoon v. Illinois, 391 U.S. 510, 519, n. 15, 88

S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Witherspoon's emphasis on a maximum cross section

of community viewpoints for the jury panel was based on

the premise that the jury represents a composite of

society. Witherspoon observed that less than half of

the American public believed in the death penalty. 391

U.S. at 520. As a result, a jury process which rou-

tinely excluded all those in the majority who did not

favor capital punishment did not properly reflect the

views of the whole community.

In Adams v. Texas, 448 U.S. 38 (1980, the Wither-

spoon rationale was extended to the sentencing phase of

a bifurcated capital trial. The Court struck down a

provision which provided that a prospective juror would

be disqualified unless he stated “under oath that the

mandatory penalty of death or imprisonment for life

will not affect his deliberations on any issue of fact."

Tex. Penal Code Ann. §12.31(b) (Supp. 1980). Asin

Witherspoon, the rationale for the decision was that

the lack of a representative cross-section of the

20.

community resulting from such a procedure deprived the

defendant of his right to an impartial jury. As ob-

served, at page 49:

Despite the hypothetical existence

of the juror who believes literally

in the Biblical admonition “an eye

for an eye." See Witherspoon v.

Illinois, supra, at 536 (Black, J.

dissenting), it is undeniable, and

the State does not seriously dis-

pute, that such jurors will be few

indeed as compared with those ex-

cluded because of scruples against

Capital punishment.

Although the above-cited decisions stop short of

holding that a jury is constitutionally required at

sentencing, their import is clear. A defendant ina

capital case is entitled to the widest possible cross-

section to determine his fate. When the sentencing is

determined solely by the trial judge, the decision

whether a defendant lives or dies is made by one indi-

vidual instead of twelve diverse personalities. The

jury acts as "an essential continuing barometer of

society's willingness to allow a death penalty statute

to remain in effect." S. Kauter, Brief Against Death:

More on the Constitutionality of Capital Punishment in

Oregon, 17 Will. L. Rev. 629, 658-659 (1981). All of

these policy considerations combine to create a strong

argument under the Sixth sai Fourteenth Amendments and

the Eighth and Fourteenth Amendments that a defendant

is entitled to jury participation in the capital sen-

tencing process.

In light of the ccaflict among the states and the

absence of a direct ruling by this Court on the issue

21.

a ae

° of jury participation in capital sentencing, this Court

should grant certiorari to review the judgment below.

3. The evidence of Petitioner's

involvement in the murder was not

sufficiently aggravating to justify

the death sentence under the princi-

ples of Enmund v. Florida, 458 U.S.

782 (1982) and Gregg v. Georgia,

428 U.S. 1563 (1976).

Thomas Gibson was acquitted of murdering Scott

Currier and convicted of murdering Kimberly Palmer.

Gibson testified at his second trial that he was pre-

sent when other members of a motorcycle gang killed

Cuctier. After Currier's death, Palmer tried to run

away. Gibson grabbed her, knocked her unconscious, and

then watched as another man strangled her.

The trial judge wrote after the trial that “the

jury might weli have concluded that the events occurred

just about as the defendant [Gibson] had related them

except that they occurred in Idaho and not in Washing-

ton.” Appendix "A"-18. The trial judge also believed:

[T]he jury could have, and likely

did, find that the defendant

[Gibson] aided and abetted in

Palmer's death and, consequently,

was guilty as a principal pursu-

ant to the provisions of I.C.

18-402 [sic].

Appendix "A"-6 (emphasis added). The citation to the

Idaho Code should be I.C. 18-204, which is set forth

herein.

Sentencing Thomas Gibson to death, under these

facts, is contrary to the Court's rulings in Enmund v.

Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140

(1982) and Gregg v.Georgia, 428 U.S. 1563, 96 S.Ct.

2909, 49 L.Ed.2d 859 (1976).

ae.

Narre ieemnninitaeeie

In Gregg, this Court upheld Georgia's capital

punishment statute and ruled that the death penalty

does not invariably violate the United States Constitu-

tion, 428 U.S. at 170, 96 S.Ct. at — _, 49 L.Ed.2d at

872. The Gregg decision also said that capital punish-

ment "is an extreme sanction, suitable to the most

extreme crime." Id. at 188, 96 S.Ct. at, 49 L.Ed.

2d at 882.

The holding in Enmund v. Florida, is that an

accomplice in a felony murder, who did not kill or

attempt to kill, and who did not intend the death of

the victim, cannot be sentenced to death. 458 U.S. 782

at 802, 102 S.Ct. 3368 at 3379, 73 L.Ed.2d 1140 at 1154

(1982). While the facts in Enmund are not identical to

those in Thomas Gibson's case, the issue is similar.

The question before us is not

the disproportionality of death

as a penalty for murder, but

rather the validity of capital

punishment for Enmund's own con-

duct. The focus must be on his

culpability, not on that of those

who committed the robbery and shot

the victims, for we insist on

"individualized consideration as

a constitutional requirement in

imposing the death sentence...

Id at 799, 102 S.Ct. at 3377, 73 L.Ed.2d at 1152 (cita-

tions omitted).

Contrary to the principles of Enmund and Gregg,

the trial judge imposed the death sentence on Thomas

Gibson. The judge believed that Gibson showed utter

disregard for life "by his actions, by the murder, and

by the circumstances surrounding its commission.”

Appendix "A"-10. But the individual actions of Thomas

aos

Gibson are not extreme, and the judge's consideration

of the other actors and the other murder denied

Gibson's right to "individualized consideration."

CONCLUSION

For these reasons, a writ of certiorari should

issue.

Resvectfully submitted,

mA 1 VASO

MICHAEL J. VRABLE

307 Elder Building

Coeur d'Alene, ID 83814

Counsel for Petitioner

24.

IN. THE DISTRICT COURT OF THE J IRST JUDICIAL DISTRICT OF THE

STATE OF IDAHO, IN AND FOR TNE COUNTY OF KOOTENAI

STATE OF IDAHO,

Plaintiff, Case No.F29470

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515,

IDAHO CODE

‘So .

THOMAS HENRY GIBSON ;

Pefendant.

SN NO Oa wae we aa aes

The above defendant having been found fullty by a jury by

verdict rendered on June 30, 1981, of the crime of MURDER IN

THE FIRST DEGREE, an offense for which the law authorizes tne

tmposition of ine death penalty; and the court having ordered

« presentence investigation and thereafter having held a sen-

tencing hearing for the purpose of hearing all relevant evidence

and argument of counsel in aggravation and mitigation of the

offense;

NOW, THEREFORE, the court hereby makes the following

findings:

1. Conviction. That the defendant, while represented

by court appointed counsel, was found guilty of the offense of

Murder In The First Degree by jury verdict rendered on June 30,

1981.

a. Presentence Report. That a presentence report, in-

cluding a report of mental evaluation of the defendant, was pre-

FINDINGS OF THE CouRT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 1

APPENDIX "A"-]

} bite ! i pote thereof were

i~@iivered to the defendant r nuais ounse]) a well as to counsel]

he plaibtifs rt east seven (7) d | rr to the sentencing

arings pursuant to section 19-2515, 1] ho Code, and the Idaho

Criminal Rules thal both plairutiff and the defendant have

f 1 Gd herein wi Ten a Wiercdypneut of h rec. ipt of COP res

Of said presentence repore and all portion thereof.

2. rtrves Pia nt To Re vonad Deatn Penalty That,

irsuant to Order entered hereia on Septemoer 15, 1981, plaintiff

filed here:n a written notice of its intent to seek ane re-

commend tue Jmposition of the death penaity; that a true and

correct copy of said notice was timely served upon counsel for

the defendant.

4, Notice of Aperavating C jreumstances. That, pursuant.

to Order entered werein on September 12, 1851, plaintiff filed

herein a written enumeration of aggravating circumstances

which it intended to prove pursuant to the provisions of Idaho

Code Section 19-2515 in order to justify its recommendation of

the death penalty; that a truce and correct copy of said notice

Was timely served upon counsel) for the defendant.

5. Notice of Mitigating Circumstances. That, pursuant

to Order entered herein on September 15, 198], defendant filed

herein a pre-sentence statement enumerating mitigating factors

and circumstances which defendant intended to rely upon in

opposing imposition of the death penalty.

6. Sentencing ilearing. ‘That, pursuant to Order eatered

September 15, 1981], a true und correct copy of which was timely

served upon counsel for piaintiff and for the defendant,

sentencing hearing commenced to be heard on October 13, 1981,

and was concluded on October 15, 1981; that, at said hearing,

court heard relevant

in the presence of the defendant,

the

FINPINGS OF Ti

CONSIDERING

UNDER SECTION

ane

COURT

DEATH PENALTY

19-2515

APPENDIX "A'-2

IDAHO CODE/ 2

weet ‘aos ase ges. ‘

ae 3 Lage ‘s €:4°9.-; o bas a On 5 wpe . ; . ee ary

: el ew es 8 wigs ete eee 82. = $b. t. tales Se

7 Fact ind Aryrur t Found in Mitigation. The de-

fencgant has filed with “he court u list of those mitigating

factors which the defendant contends preclude imposition of the

th penaity. These are considered herein below in the order

presented by the defendant.

a. Lack of previous felony convictions. It is

specifically found that the defendant has not previously been

‘onvicted of a crime amounting to a felony. The defendant's

prior crimimaa reeort consists of a considerable number of con-

victicns for crimes which are commonly classified as "traffic

offenses". Y¥hniie ihéne are ua number of reported erieinal

charges for offenses of a more serious nature, including crimes

relating to unlawful use of controlled substances, the actual

record of prior convictions for other than minor offenses is

non-existent. There is, therefore, no significant history of

prior criminal activity disclosed by official records, and this

is deemed by the court tu be a mitigating factor in considering

the imposition of the death penalty.

It should be noted, however, that, while the defendant

was found not guilty of Murder In The First Degree in the State

of Washington on a charge relating to the death of one Scott

Currier (and arising out of facts and circumstances very closely

related to the fucts und circumstunces involved herein), the

defendant admitted during the trial held herein that "e was

present at the time one Donald Paradis, together with others,

killed Scott Currier in a very brutal manner. The defendant

denies participation in such act, however.

b. Age. Tne defendant is 30 years old. This fact,

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDALO CODE/ 3

APPENDIX "A'"'-3

! ind of atsell Is HAromarkable and ois not found to be a

mitieraicingg Carcumstance,

‘ Military reeord. The defendant enlisted in the

(ted states Marine Corps on Augusi 2, 14908, and was honorably

giaseharged therefrom at the expiration af vie atin ion on

luiy SO. 1971. Initoatiy, the defendant did well in the military

Service, advancing: qGuite rapidly ino rank. Following the death

of the defendant's father in September of 1969 », and during a

time when his inother's health was Cceleriorating, the defendant

unsuccessfully sought a hardship discharge. The defendant's

military records contain under a notation entitled “inental

status" a judgment of "passive anuressive personality” und re

ferences to a considerable dislike for the military service. The

court finds that the defendant's military record is not a miti-

gating factor in considering whether or not the death penalty

Shoutd be imposed in this case.

d. Family background. As reported in the presentence

report, the defendant has an older brother and sister and two

yournser sisters, non of whom are reported to have any prior signi-

ticant criminal record, and all of whom are supportive of the

defendunt. The defendant's father diced in September of 19689;

the defendant's mother died in March of 1570. While the de-

fendant describes his chiidnood as being very good and the family

is described as being "close-knit", it is apparent that the de-

fendant suffered a certain wnount of emetional deprivation,

particularly with respect to his relationships with his futher

and with his peer group. The defendant ultimately became in-

volved in numerous minor juvenile problems, run away situations,

involvement with controlicd substances, and, tinally dropped

out of school and joined the Marine Corps at aye 17. The

court finds nothing in the defendant's family backyreund which

FINDINGS OF Till) COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDANO CODE/ 4

——--.- ----------

IL considers to be a mitigating circumstance which would render

unjust the imposition of the death penalty in the event that

a Stututory aggravating cireumstance shouid be subsequently

found.

€. Defendant's trial testimony. During the trial,

the defendant elected ta testify on his own behalf. The de-

fendant testified that on June 2), 1980. he was present at a

certain house located in Spokane, Washington, which house was

then being rented by Donald Paradis. Also present were Paradis

a Charles Amacher, a Larry Evans and two females. Scott Currier

and Kimberly Palntwer (the victim involved herein) came to the

house. Currier accused Parudis of stealing a pgzun, which resulted

in a fight between Currier, on the one side, und Paradis, Amacher

. and Evans, on the other. The "fight", in turn, resulted in the

killing of Currier. . . he was viciously beaten to death. The

defendant denicd any involvement in the death of Currier, testi-

fying that he was trying to get his girlfriend (now wife) out

of the house. Subsequently, the defendant went into the base-

ment where he observed the body of Curricr who was either dead

or ‘dying. He returned uUpStairs and, at this point, Kimberly

Palmer came running by trying to get out of the house. The

defendant hit her with his fist, knocking her unconscious. He

drug her into the kitchen and felt for a pulse. At this pointe

the defendant said that he advised Larry Evans that "She's

still alive". Larry Evans then procecded to strangle the un-

conscious Palmer.

In sum, the defendant testified that, although he struck

Paliner, rendering her unconscious, he did not kill] her; further-

more, Palmer died in Washington and not in Idaho.

Clearly, the jury had to disroyard al teast that portion

of the defendant's testimony which related to the pluce of death

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 5

APPENDIX "A"-5

—_———-.

in order for it to have returned its verdict herein. The court

IS not unmindful that the Jury mjght not have been nearly as

concerned with the jurisdictional aspects of the situation as

would be the court. Nevertheless, 14 is apparent that the jury

did render its verdict in accordance with the plaintiff's

argued theory of the case, i.e., that the strangulation and

bench of Palmer occurred in Iduho and nog in Washington.

Having concluded that the incident occurred in Idaho,

the jury might then have determined that the defendant did in-

deed strike Palmer, rendering her unconscious os he said he did,

followed by her sédranruluation by Evans (the evidence at trial

waS to the effect that a hat ideniified as belonging te Evans

was found beneath Palmer's body). In short, the Jury could

nave, and Jikely did, find that the defendant aided and abetted

in Palmer's death mae consequently, was guilty as a principal

pu.suant to the provisions of I. C. 18-402.

In any event, the testimony of the defendant can hardly

be considered as a mitigating factor and it is not found tu be

such.

° f. Polyrraph examination. No cvidence or argument

was Dresented by the defendant at the hearing to support this

listed mitigating circumstance.

&. Testimony of C. Gordon Rdgren, M.D... FAPA. Dr.

—

Edgren conducted a mental evaluation of the defendant pursuant

to the court order and as a part of the presentence investigation.

He also testified on behalf of the defendant at the aggravation <

mitigation hearing. The court has considered the report of Dr.

Edgren submitted us a part of the presentence report, and, of

course, heard his testimony. While Dr. Edgren's findings and

opinicn certainly go far to explain why the defendant came to

become involved in the situntion witich has Jed to his conviction

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAIO CODE/ 6

APPENDIX "A"-6

ae Ses ~——r

for the crome charywed, the court finds neciing therein which

can be considered a mitigating: circumstance,

h. Testimony of Cal Henderson, No such testimony

WwaS presented to the court.

In addition to the mitigating circumstances urged by the

defendunt and Giscussed thove, the court bas cons:stdered the

following potential mitigating CUrCUMs LANces :

a. Mental or emotional staie at the time of the

murcer, There is no evidence tu sugyest that the defendant was

influenced by any extreme mental or emotionul disturbance at,

the time of the murder.

b. Capac ity _to appreci ate cr} minalit y of conduct or

to conform conduct to the requirements of law. There is no

evidence to sSsugrest that the defendant's cupuecity to appreciate

the criminality of bis conduct or to conform nis conduct to the

requirements of law was in any way impaired by mental disease

or defect or by intoxication. There is a reference in the pre-

sentence report to the etfect that the defendant's use of con-

trolled substances may have contributed to his involvement in

the’ situation leading to his conviction, but there has been no

evidence presented tu the court to the effect that the defendant

was @ither intoxicated or using controlled substances at the

time of the commission of the murder,

c. Extent of cooperation with police. There jis no

evidence that the defendant has cooperated with the police. At

the time of the trial held in the State of Washington and in-

volving the death of Scolt Currier, the defendunt considered

testifying for the prosecution. Such testimony quite likely

would have chonged the result of that trial; the defendant elected

not to testify.

FINDINGS OF THE COURT IN

CONSIDERING DEATIL PENALTY

UNDER SECTION 19-2515, IDANO CODE/ 7

APPENDIX "A"-7

6. Facts and Argument Found in Aggravation. Pursuant

to Order enters:d on September 15,- 198), the plaintiff has filed

herein a document stating which of the AauUgravaling circumstances

enumerated in Idaho Code Section 19-2515(f) upon which it was

relying to justify the imposition of the death penalty. That

document, which was filea prior to the holding of the ugfravation

mitigation hearing, states that the State relies tpon and intends

to prove the statutory aggravating circumstances set forth in

subsections (6), (8), and (10) of Idahe Code Section 19-2515(f).

At the time of the hearing, the State orally advised in open

court that it was* withdrawine any contention that the evidence

would sustain a finding under Idaho Code Section 19-2515 (£)(10),

and, consequently, no further consideration will be piven to any

such claims,

It is the plaintiff's position that the evidence shows

beyond a reasonable doubt, that:

(1) By the murder, or the circumstances Surrounding its

commission, the defendant exhibited utter disreyard for human

life; (1.C. 19-2515(f)(6), and,

; (2) The defendant, by prior conduct or conduct in the

commission of the murder at hand, has exhibited a propensity to

commit a murder which will probably constitute a continuing

threat to society. (I.C. 19-2515(f)(8).

In suppert of its position, the plaintiff has set forth in

its written enumeration of such claimed aggravating circumstances

a brief statement of the reasons for the contention that such

aggravuting, Circumstances should be found by the court. The

State aupmented such statements by arguuwent at the hearing.

The court chooses to first address the contention that

the evidence shows, beyond a reasonable doubt, that the de-

fendant's prior conduct, or conduct in the coinmission of the

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY °

UNDER SECTION 19-2515, IDAHO CODE/ 5

APPENDIX "A"-8

ee ee ee “

turder at hand, eahibits a propensity to comnic murder which

will probably constitute uw eontinuing threat to seciety. The

State argues that the defendant's involvement in the killing

of Scott Currier followed by the murder of Miss Palmer shows a

propensity to comait murder. "hile there is no doubt that the

defendant was present in the same house when Currier was killed,

there 3s no evidence to support any finding that the defendant

was actually involved in his death, however. .

The State aiso argues that the fact that the evidtice

shows that the defendant kept Palmer from Jeaving the residence

after the killing of Currier exhibits a propensity to conmnit

murder, The only evidence of that comes from ihe cdefendant's

testimony and vers ion Ot how and when Kimberly Palmer was

killed. The obvicus, problem with finding such tustimony to be

factual is that it clearly weuld also require the court to find

that Kimberly Paimer was kiiled in the State of Washineton and

would be contrary to the verdict of the jury in this.case. This

courl ennnot find, beyond a reasonable doubt, thet the defendant

kept Kimberly Palmer from leaving the residence in the State of

Sewiinahaa:

It is further arpued by the State that the killing of

Kimberly Palmer ‘for such a smal] reasen" by the defendant and

others in and of itsglf exhibits a propensity to comnit murder.

The court does not agree that the reason was small. The evidence

shows that Kimberly Palmer had only minimal contact with the

defendant or his associates prior to the continuing series of

events which immediately preceeded her murder. She did not

provoke any quarre], figshtl, or any other altercation but became ©

involved only because she was with Scott Currier. The sole and

only motive for her murder which was argued al trial, or for

that matter has been suprested by anyone at any time, was to

FINDINGS OF THE COURT Ii :

CONSIDERING DEATIL PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 9

APPENDIX "A'"'-9

eliminate forever the possibility that she would reveal the

cirenmstances concerhing the killing of Scott Currier to police

authorities or te persons who would make such revelations to the

authoritiés.

It seems te the court that this) argument would be better

made by the Stute in support of its contention that the evidence

supports a finding of an agyravaliog cavcumstance moder Tdaho

Code Section 19-2515(f) (6) rather than Section 19-2515(1f)(&).

While it can be argued that the exhibition of utter disregard

for human Jife in and of itsell revenls a propensity to commit

surder, it cannot be presumed that the leyislature intended to

duplicate subsection (6) by its enactinent of subsection (8).

State v. Osborn, Idaho Supreme Court Opinion No. 13400, riled

July 9, 198i. It is, this court's: opinion that T. C. 19-2515 (69 C2

is directed toward the situation where the defendant's prior

record and/or the circumstances surrounding the commission of the

murde:. exhibit uw strong likelihood or even 2 probability that

the defendant wi!l again commit murder, regardless of the ciT=

cumstances. The facts of this case, as revealed by the evidence,

do not permit a finding, beyond a reusonuble doubt, that the de-

fendant has a propensity to commit murder within the meaning of

I. C. 19-2515(1f)(8).

With respect to Idaho Cod@ Section 19-2515(f)(6), the

State argues that the evidence as revealed during the trial

proves, beyond a reasonable doubt, that the defendant exhibited

utter disregard for human life. It is argued that such is

shown by the murder itself and by the Circumstances surrounding

its commission. The State points to the holding of State v._

Osburn, supra, to the effect that, "the phrase, ‘utter disre-

gard’ .. . 3s meant to be reflective of acts or circumstances

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 10

APPENDIX "A''-10

surrounding the crime whicn exhibit the Highest, the utmost,

callous disregard tor human life » 2.0., the cold-blooded,

pitiless slayer."

In view of the plaurntaiff's arguments, and based upon the

evidence adduced at the trial, the court makes the following

findings of fack concerning the Gercumstances Surroundings the

commission Of the murder, it is found, Iweyond a reasonable

doubt, that:

is On June 21, 1950, Kimberly Ann Palmer was 2 fomate

human boing, weighing apprexim

pounds and being ap-

proximately 5'4" .in heighi

b. Prior to June 2), 1980, Kimnte rly Ann Palmer was only

Slightly ucquainted with the defendant, having only met him

once or twice before during the preceding few weeks.

c. That, shertly atter 12:45 o'clock a.m. on June ai,

1980, Kimberly Ann Palmer accompanied one Scott Currier to a

certain residence located ut South 44 Dearborn Street in Spokane

Washington, which residence was then being rented by one Donald

Paradis.

d. That, present at said residence at the time stated

were the defendant, Donald Paradis, Charles Amacher, Larry Evans

and two females, one of whom is now the wife of the defendant.

e. That an altercation then and there ensued between

Curricr, on one side, and Paradis, Amacher and Evans on the

other.

f. That, as the result of such alter@ation, Currier was

brutally beaten, receiving massive inead injuries from which he

dicd at said residence during the carly morning hours of June 21,

1980.

gm. That, following the death of Currier, and at some

time between 12:45 o'clock a.m. and 6:45 o'clock a.m. on June 2),

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 1)

APPENDIX "A‘“-11

Js0, Currier'’s body was put into a sleepinue bay which, in turn,

Was placed inte Currier's Volk ween van which kad been parked

Gutside the residence.

h. That the defendant, Paradis and Evans then pro-

eecded to drive said venicle to a location on Mileck Road,

south of the City of Post Falls in Kootenai County, ldaho,

1. That the character of such J Qcation is wooded and

tsOlated from any hearby dwelling houses or other inhabited

structures.

J. That Kimberly Ann Palmer was also transported in such

vehicle to such location at the same time, and was ajlive at

Uurrier was removed from the vehicle ond,while still inside the

Sleeping bug, was drug into the bushes and undergrowth a short

distance off Mileck Noad.

1. That, at approximately the same time that Currier's

body was Beit disposed of, Kimberly Ann Palmer was killed at

a location approximately 90 feet off Mileck Road, which location

was across an old barbwire fence from the road and near a smaj]

stream,

m. That during the carly morning hours of June 21, 1980,

Kimberly Ann Palmer was killed by means of manual strungulation

and her body was left face down in said stream.

n. That cither the defendant, Donald Paradis or Larry

Evans actually killed Kimberly Ann Palmer.

Oo. That the defendant either directly committed the act

constituting the premeditated murder of Kimberly Ann Palmer or

aided and abetted in its commission.

p. That Kimberly Ann Palmer did nothing to provoke acts

resulting in her death. :

FINDINGS OF THE COURT IN :

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ i2

APPENDIX "A''-12

gq. That the reason and motive for the killing of Kimberly

Ann Palmer wes to permanently Insure that she would not reveal) to

anyone the circumstances resulting in the death of Scott Currier.

The gist of the State's argument, based upon the fore-

mnoing factual Circumstances, is that the killing of Kimberly Ann

Palmer was Gone in a manner which esbibits that the defendant, as

well as his accomplices, were cold blooded and pitiless in aec-

complishing the murder. Thus, tie State argues that this is

a case Ino whieh the vietin had nothing, whatsoever to do. with

the defendant, did not provoke or do w.iything to incite the acts

’

leading to her killing, and was, in effeet, simply an innecent

bystander who hugs ened to be tn the wrong place at the wrong

time. In addition, the State points to the fact that the defendant,

and his accomplices, hac ample time to otrans upon the situation,

but nevertheless clected to take the life of Kimberly Ann

Palmer for the sole reason of protecting themselves against the

possibility of her reveuling to others the circumstances leading

to the death of Scott Currier.

The primary arguments raised by the defendant in opposi-

tion to any finding that the killing was accomplished in a manner

exhibiting an utter disregard for human life are, first, that the

defendant is not guilty,i.e., that he did not kill Kimberly Ann

Palmer, and, second, that there is no cvidence that the defendant

actually filled Miss Palmer. |

The problem with the first of these arguments is that the

jury found to the contrary. The second argument is essentially

an argument that, even though the defendant has been convicted

as a principal jin the murder, in order to sentence him to death

for such crime, there must be evidence that ho actually was the

one who directly committed the manual strangulation of Kimberly

Ann Palmer.

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY :

UNDER SECTION 19-2515, IDANO CODE/ 13

APPENDIX ad a 13

atutory Ayuravat j me Circumstances Found Under

9-2515( LE li is the finding of the court that the

evidence adduced at trial, and relicd ipon by the State during:

the aupravation-mi. Mgution hearing, Shows, beyond a reasonable

double, that by the murder

hue in life

ait

st K rly

less }

‘

Ul Lt (Cu

a2 Merci

LO conlure

» and the circumstances surrounding:

ton, the defendant exhibited ulter disregard for

Within the weaning of Tdaho Code Section 19-2515(f)(6).

ret fGuRnaG hereinabove leave no doubt. that the killing

f ' inou mead killing of wa defense-

being plished in a ce laly remeditated fashion

ric 1! | “, utter a regard for Jmman

wd and "pitiless", then it is difficult

up a Mtuaidon gn which the taking of a human life

could be greatly more "cold blooded" Or "pitiless". The court

believes th

at the term, "cold blooded" means that, after having

considerable time to rejlect upon the situation and consider

available options, the perpetrator cooly and deliberately de-

cides to take a human life. That is the Situation presented in

thts case.

Even

The term, "pitiles: adds little, if anything.

though, as has been mentioned. the State has with-

drawn its contention that the circumstances Show the existence

Of a Statutory agperavatlung circumstance under Idaho Code Section

“2910 (f£)(10), th- applicability of that subsection to the

case at hand has not been lost. Subsection (10) provides that

lt iS a statutory aperavaling cinceumstance if the murder was

committed against a witness or potential witness in a criminal

Or Civili ie

added). The State recognized that it could not prove the existence

Of such an

vious thut

gul procceding because of such procecding (omphasis

aggravating circumstance, but only hecause it was eb-

there was no criminal or civii proceeding commenced

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY :

UNDER SECTION 19-2515, IDalo CODFR/ 14

APPENDIX "A"-14

at the time of the acis tavolved, and, therefore, it could not

be shown that the murder was committed Hpyainst a witness or

potential witnes.; becuuse of suclt pros ceding.

However, there is little ques jon that the legislative

intent in enacting I. C. 19-2515(f)(10) was aimed at essentially

the same socictal objectives us are presented by the factual

Situation in this case. Thus, a murder committed to prevent

one from becoming a wilness in a future criminal proceeding, or

for the purpose of climinating the possibility of such a pro-

ceeding, or simply to prevent a person from reporting a crime

to the police, differs from a murder committed because of a

pending proceeding only by reason of the stage at which the

processes of the criminal justice system have moved the matter.

It igs doubtful thut the victim or a potential victim would deem

that to be significant, and the csscntial motive in the mind of

the perpetrator 1s the same. And, while the legislature, in

enacting subsection (10) cannot be presumed to have simply re-

peated subsee¢tion (G6) of I. C. 19-2515(f), it is clear that there

is a relationship among all of the subsections and an inescapable

overlapping.

, Thus, the killing of a witness, or potential witness,

exhibits the same type of cool, calculated, deliberate, and un-

provoked taking of a human Jife as would be necessary to sustain

a finding under 1. C. 19-2515(f)(G), und, while there was no

ponding civil or criminnl procecding yet involved at the time of

the murder of Kiinberly Ann Palmer, it is the finding of this

Court that the motive for the killing of Kimberly Ann Palmer in

and of itself iss substantial evidence that the commission of her

murder was accomplished for reuysons, and under circumstances

which exhibit an utter disregard for human life pursuant to

rE. €.. BO-2915( £66).

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515. IDAHO CODE/ 15

APPENDIX "A"-15

With respect to the dePendant's wd umene that the evidence

must show that the defgndant direetly committed the offense

charged, there is no doubt that no such finding can ve made.

It can be found beyond a reasonable doube, and the jury did so

find, that the defendant either dircetly conmitted the act or

wided and abetted mn oats commission. The court has been provided

with no authority which holds that the general law applicable to

persons convicted as a principal for « criminal offense (Idaho

Code Section 18-204) is allereuoin any manner because the po-

‘

tential penalty tnvolved is death. hus, it requires no cita-

tion of authority to state that the Inw in Tdaho has long been

that a person who aids and abets in the commission of a crime

is equally guilty as one who directly commits the act; and, of

course, is subject to receiving tie maximum punishment allowed

by Taw. The crime of Murder In The First Degree can be punished

by death. ldaho Code Section 18-4004. Neither that section of

the code nor the sentencing provisions of JI. C. 19-2515 provides

for any different penalty in the event the conviction was had

upon the basis that the defendant only aided and abetted in the

commission of the crime,

It must, therefore, be concluded that the legislature in-

tended that a person who aided and abetted in the commission of

the crime of Murder In The First Degree could be sentenced to

death providing that the circumstances were such that the im-

position of the death penalty was warranted pursuant to the pro-

visions of Idaho Code Section 19-2515.

Undoubtedly, not every case involving a person convicted

of the crime of Murder In The First Degree for aiding and abetting

in a killing would involve circumstances which would justify the

finding of an aggravating circumstance pursuant to Idaho Code

Section 19-2Z515(f£). lt is apuarent in this case, however, that,

FINDINGS OF ‘THE COURT Lt.

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 16

APPENDIX "'A''-16

should the other two individuals who were aenlwod be convicted

of the same crime, they could make exactly the same claim as

ithe defendant 1s making in this case. Thus, even though the

murder, or the circumsiances surrounding: 1tS comeission, would

warrant the finding of a Statulory apgeravaling Circumstance,

the mere fact that there was more (link one perpetrator would

prevent such a finding in many cases 2) the defendant's argument

It is not diificull 16° imupine analogous siluations,

Assume that three individuals ure convictsd of Murder In The

First Degree for jhe Killing of an cxeculise officer because of

the exercise of his officiai Juty. One is convicted solely as

woprincipal because. be planned aed oncouraced the assassination,

The other two beth fireua bullets into the body of the victim,

but onlv one bullet was fatal and there is no evidence which would

permit a determination us to which person fired the fatal shot,

Obviously, the murder would justify the finding of a statutory

aggravating circumstance under IT. C. 19-2515(f)(9). However,

if, as defendant here argues, such a findings can only be made as

against the person who directly ncecomplished the act of killing,

no such findings could be bed as ayaetast any of those involved,

rerardless of the Gegree of culpabiltiy.

With respect to the culpability of the defendant in this

‘

case, the court is aware that he continues to deny that hoe

killed Kimberiy Ana Palmer. The defendant's own version of the

killing shows cleardy that bis actions directly produced the

sjluation which iead the to strangulation of Miss Palmer. Ie

noring the jurisdictional aspects of the testimony, it is still

revealing to examine the defendant's version of the events,

The defendant has admitted that he struck Miss Palmer with

sufficient foree to render her unconsc1rodas. He has admitted

FINDINGS OF THR COURT IS

CONSIDFRIPG DEATIE PENALTY .

UNDER SECTION 19-2515, IDAHO CODE/ 17

APPENDIX "A"'-17

that this ict was done for the sole purpose of preventing her

escape and probable revelation of. the eveuts leading to the

Killings of Scott Currier. Oncstion - why'did the defendant be-

lieve it necessary to use such force for such purpose? The

defendant hes admitted that he then dragged the unconscious Miss

Palmer onto the aitchen.., Question - why did he drag her into

wnolher room? The detendani hues admittesi that he then felt for

her pulse and ascertained that she was still alive, Qucstion -

Why did the deteondant teohreve that dt wie. necessary to determine

Whether or not Miss Palier was stall) alive? The defendant states

that he then turned to Larry Evans, who was in the kitchen, and

advised him that Miss Paimer was still alive. Question -

Why did the defendant believe it Was necessury to so advise Hr.

Evans? Was it just a Sponlancous remark or was it, in effect,

a statement to Evans that something: further would have to be

dene? The defendant then states that Larry Evans proceeded to

Strangle the uneconsesous Miss Palmer, but the defendant swdmits

that he did novhing tu attompt to prevent the final act which

produced death. Question - Why did the defendant not at least

attempt to prevent the strangulation? In that regard, one

also wonders what the defendant would have done had

Evans not delivered the coup de grace.

At the least, the defendant's own version of the events

show that he aided and abetted in the killing of Kimberly Ann

Palmer in a very direct manner, Admittedly, and as stated,

any determinations made vin an examination of the defendant's

testimony must ivnore the jurisdictional aspect of the situation,

Dut, as before stated, the jury migght well have concluded that

the events oecurred just about uss the defendant had related them

except that they occurred in Tdaho and not in Washington. The

svidence relating to the site where the bodies were found coupled

FINDINGS OF Til COURT 1N

CONSIDERING DEATH PENALTY ;

UNDER SECTION 19-2515, IDAIO CODE/ 18

APPENDIX "A''-18

with the testimony of Dro rade certainty would sustaie sueh a

cone listo, Ihowy event, the defendant "ss baci imeny contradiets

his stulementi that he gs nob purity

Ptoas thee findray of ibe court that be his wetion, by

the murder, and Ly the circumstances sit rounding its conmission,

the dedondant tamsedt Gandtosted ulter disregard for human Life.

lO, RersvSevss Whey Peeset he Pe Halty Wie Tinposeod, As iss set

: ag Ad A. 4 nid Heeadtad

forth hereinabove, the court Bass found one (1) statutery ameravating

circumstance lO exISL., fduho Code Section 19-25)5(b) provides

that, "Where the court Cinds a statutory apgeravaling circumstance

the court sha)l sentenee the defendant to death unless the ceurt

finds that mitigating Cireumstunces which may be presented out-

weigh the gravity of any ajgrruvating cireumstance found und make

ImpoSItion of denuth unjust.

he court has found one mi tipaat inyz circumstance, to-wit:

the facet that the defendant has no substantial prior criminal

record. However, the court does not find that such mitigatiny

factor outweighs the pravityol? the ayeravating circumstance

found. Mitigating circumstances has been defined as "such as

do Nol constitute a justificulion or excuse of the offense in

question, but which, in fairness and mercy, may be considered as

extenuating or reducing the degree of moral culpability", State v

Osborn, Supra. It is the finding of the court that the fact that

the defendant has no significant history of criminal activity

docs not oulweigh tie fact that by the murder committed, and the

circumstances surrounding the conmissieon, the defendant has

exhibited an utter disreyard for human bite as has also been .

found by the coure.

The murder committed in this cuse was nol what might

7 ‘oamurder, or what pas sometimes been

be called a “commonplace’

described as a “normal” wurder (Cif there can be such a thine).

FINDINGS OF THE COURT IN

CONSIDERING DEATIE PENALTY

UNDER SECTION 19-2515, IDAHO COnk/ 12

APPENDIX "A"-19

Jt did not invotwe family members or perso who were peeviously

closely associated as do che majority of murders. It, vas come

mitted wilhout even a hint that rt resulted from aguy omotiona)

Wohewval gs is offen the situation. There jis no evidence that

the use or abuse of aicohol or any controlled substance contri-

buted to the murder as is usually the situation iD the so-called

"common" murder, As ae boon found, if was a murder comnj tted

Ina COOL, deliberate manner toe a specifie PUrpPOsSe, Joe Lo

} % 1C., &

cover Up a prior killing,

It G8 the opinion and finding of this court, after much

considered thowrbt and soul- eared, tlasst lve MMposilion of the

death penalty in thas case would wot be MN USt, and that the

Lapses PLION G2 wer, Cher penably woudse! sicit MOU EVY Gepreeate the

SOrsousSNess Gf che crime comnicted,

That the death penalty should be imposed on the defendant

jor the cupitabl offense of which he was convicted,

The ees haveng made Che gdhbove findings in necordance

with Idaho Code Section t9-2515 and Rule 39.1 of the Idabo

Criuinad Rules, wow therefore,

iT oOES MEREDY ORDERED that the above-named defendant appear

before the court at 3:00 ofc tock pom. on Thursday, November °,

POST, for pronouncement of Judgment and Sentence herein.

ENTERED this Aw, day Of Novenitesr, LOBL.

“

Be lh

MOE ¥ oy, an

wire a? uman, District Judge

UL“

Copies Lo:

Mare Haws, Chief Depuly Prosecuting Attorney

Michael Vrable, Attorney’ for Defeucdant

District Judves (First Judicial Distriet)

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SLCTION 19-2515, IDAHO COD / 20

APPENDIX "A''-20

APK 23,1984

Otrice ue tHe CLERK

SUPREME Conor YS

MICHAEL J. VRABLE

Attorney at Law

307 Elder Building

Coeur d'Alene, ID 83814

Telephone: (208) 667-5415

ATTORNEY FOR PETITIONER

: 83-6611

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

THOMAS HENRY GIBSON,

Petitioner,

vs.

STATE OF IDAHO,

Respondent.

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

ON PETITION FOR CERTIORARI IN FORMA PAUPERIS

I, THOMAS HENRY GIBSON, being first duly sworn, deposes and

Says that I am the .etitioner in the above-entitled case; that in

Support of my motion to proceed on Petition for Certiorari with-

out being required to Prepay fees, costs or give security there-

for,g@I state that because of my poverty I am unable to pay the

costs of said proceeding or to give security therefor; that I be-

lieve I am entitled to redress; and that the issues which I de-

sire to present on certiorari are the following:

1. The death sentence imposed by the State of Idaho was

done in violation of the United States Constitution.

AFFIDAVIT...

2. The evidence used at my trial, to obtain a conviction,

was introduced in violation of the double jeopardy clause of the

United States Constitution.

I further swear that the responses which I have made to the

questions and instructions below relating to my ability to pay

the cost of prosecuting the Petition for Certiorari are true.

1. Are you presently employed? No. I have been incarcer-

ated continuously since June 26, 1980 in the states of Califor-

nia, Washington and Idaho.

2. Have you received within the past twelve months any in-

come from a business, profession, or other form of sel f-employ-

ment, or in the form of rent payments, interest, dividends, or

other source? No.

3. Do you own any cash or checking or savings account? No.

4. Do you own any real estate, stocks, bonds, notes, auto-

mobiles, or other valuable Property (excluding ordinary household

furnishings and clothing)? No.

5. List the persons who are dependent upon you for support

and state your relationship to those persons. My wife, Cindy

Gibson and my minor daughter. Due to my incarceration, I have

been unable to provide any support since June 26, 1980.

I understand that a false statement or answer to any ques-

tions in this affidavit will subject me to penalties for perjury.

sos | PO 1a. Iv Alike,

THOMAS HENRY GIBSON

SUBSCRIBED and SWORN to before me this 23 day of March,

1984.

a. 0.8 Vio

Notary Public for Idaho

Residing at Coeur d'Alene

Let the applicant proceed with prepayment of costs or fees

or the necessity of giving security therefor.

Justice

AFFIDAVIT...

1983 OPINION NO. 189

IN THE SUPREME COURT OF THE STATE OF IDAHO

No. 14425

STATE OF IDAHO, )

Plaintiff-Respondent, Boise, September 1983 Term

Vv. Filed: December 15, 1983

THOMAS HENRY GIBSON, Frederick C. Lyon, Clerk

Defendant-Appellant. 5

Appeal from the District Court of the First Judicial District

of the State of Idaho, Kootenai County. Honorable Gary Haman,

District Judge.

Appeal from sentence of death imposed on conviction of first

degree murder. Judgment of conviction and sentence affirmed.

Michael J. Vrable, Coeur d'Alene, for appellant.

Honorable Jim Jones, Attorney General; Lynn E.

Thomas, Solicitor General, and Larry K. Harvey,

Chief Deputy Attorney General, State of Idaho,

Boise, for respondent.

SHEPARD, J.

This is an appeal from a conviction of first degree murder and

from the sentence of death imposed upon that conviction, together

with our review of the death sentence pursuant to I.C. § 19-2827. We

affirm.

The circumstances surrounding the crime are largely without

challenge except as to the location of and who did the actual

killing. Some of the most damaging testimony came from the defendant

Cibson himself who testified at trial. Gibson was charged with the

first degree murder of Kimberly Ann Palmer. Palmer and a friend,

Scott Currier, were in Spokane, Washington, where Currier had met

members of a motorcycle group. On June 19, 1980, Palmer and Currier

left for a camping trip in a blue and white van. On Friday, June 20,

Currier and Palmer checked into a Spokane motel which was located a

]

APPENDIX "'B"'-1}

short distance from the residence of Donald Paradis; they immediately

checked out of the motel, with Currier stating that his guns had been

stolen, that he knew who did it, and that he was going to retrieve

then.

Gibson testified that in the early morning hours of June 21,

he, Paradis, and Larry Evans, among others, were at the Paradis

residence when Currier and Palmer arrived. A fight erupted and

Gibson testified that he watched Paradis beat Curriér to death with a.

baseball bat. Cibson testified that he left for a short time, and

upon returning found Currier lying on the floor dead or dying. Gibson

testified that he saw Kimberly Palmer running out of the house and

"as she ran by me I grabbed her, pulled her down to the floor and hit

her and knocked her out'’ because he was afraid she would be calling

for help. Gibson testified that he then moved Palmer to the kitchen,

put her on the floor, took her pulse, determined that she was still

alive, and related that to Larry Evans and that Evans then choked

Palmer to death. Gibson testified that he watched the choking and

thereafter determined that Palmer was dead.

Gibson testified that he and another then placed Currier's

body in a blue sleeping bag while Paradis and Evans placed the Palmer

body in a red sleeping bag. The bodies were then placed in the blue

and white van, which was driven to a remote area just outside of Post

Falls, Idaho. Other testimony indicated that at approximately 6:30

a.m. that Saturday morning, the blue and white van was observed

driving up a steep mountain road in a sparsely populated area south

of Post Falls, Idaho. Two or three men were in that van, one of whom

was wearing a distinctive cap. Gibson testified that the blue and

white van stalled going up a hill, rolled backwards and overturned.

Gibson stated that he stayed in the van while Paradis moved the body

of Kimberly Palmer and Evans moved the body of Scott Currier. The

van was then pushed over, abandoned, and Gibson, Paradis and Evans

walked back to Post Falls. Gibson stated that he was carrying a

rifle rolled up in a blue blanket.

APPENDIX "'B"-2

Other testimony placed three men of the general description of

Gibson, Paradis and Evans walking down that road toward Post Falls,

Idaho that same morning. The men were all strange to the area and

one was carrying a rolled up blue blanket. Three men of the same

description were observed entering Post Falls that morning, and they

were questioned by the police in Post Falls. One of those men was

identified as Gibson and he was carrying a rolled up blue blanket.

Another of the three was identified as Paradis.

Later that day, the blue and white van was seen turned on its

side with debris scattered about just off that mountain road. Upon

investigation, the body of Kimberly Palmer was found face down in a

small stream nearby and the body of Scott Currier was found inside a

sleeping bag. Currier's body was bound with pieces of terrycloth and

had been bleeding. A distinctive belt buckle worn by Currier had

been cut off. Palmer was found to have been strangled to death.

In the early morning hours of Sunday, June 22, the Paradis

residence in Spokane was severely damaged by a fire caused by arson.

In the basement of that house was found a rolled up rug, in which

were found Currier's missing belt buckle, a lawn dart with traces of

blood which matched puncture wounds in Currier's back, and a piece of

blue terrycloth which matched the terrycloth found with the body of

Currier.

On Monday, June 23, Gibson and a friend left the area; they

were apprehended in northern California on June 25. Gibson gave a

false statement to California authorities before being returned to

the State of Washington where he was charged with the murder of Scott

Currier. Following trial, he was acquitted of that charge and extra-

dited to Idaho for the murder of Kimberly Palmer.

At trial, a major issue was raised concerning Idaho's juris-

diction over Gibson and, therefore, much of the State's case con-

sisted of autopsy evidence which showed that the varying state of

body decomposition indicated that Currier had been killed some hours

before Palmer, and water in Palmer's lungs indicated that Palmer had

APPENDIX "B"-3

actually been killed in the streambed in Idaho. That evidence, of

course, contradicted of the testimony of Gibson that Palmer had been

killed in the Paradis' residence in the State of Washington.

Gibson asserts that at the preliminary hearing stage the

information should have been dismissed for lack of probable cause,

citing I.C.R. 5.1(e):

"If from the evidence the magistrate does not deter-

mine that a public offense has been committed or that

there is not probable or sufficient cause to believe

that the defendant committed such _ offense, the

magistrate shall dismiss the complaint and discharge

the defendant."

The standard @f review for probable cause findings at the

preliminary hearing stage was stated in State v. Owens, 101 Idaho

632, at 636, 619 P.2d 787, at 791 (1979):

"At the preliminary hearing the state is not required

to prove the accused's guilt beyond a _ reasonable

doubt; it need only prove that a crime was committed

and that there is probable cause to believe the

accused committed it. [Citations]. The decision of a

magistrate that there exists probable cause to bind a

defendant over to district court for trial on the

charges should be overturned only on a showing that

the committing magistrate abused his discretion.’

It is also stated that probable cause exists when the court

has before it ''such evidence as would lead a reasonable person to

believe the accused party has probably or likely committed the

offense charged.'' Carey v. State, 91 Idaho 706, at 709, 429 P.2d

836, at 839 (1967); Martinez v. State, 90 Idaho 229, at 232, 409 P.2d

426, at 427 (1965).

Without reciting the testimony, it is sufficient to state that

the evidence produced by the State at the preliminary hearing estab-

lished that a crime had been committed and a reasonable person would

helieve that Gibson had probably or likely participated in the conm-

mission of the offense charged. We find no abuse of the discretion

of the magistrate in his finding of probable cause.

At one point in time, Gibson was represented by the office of

public defender for a period of approximately ten days, but during

that time no member of that office so much as contacted Gibson. A

APPENDIX "'B"-4

member of that public. defender's office joined the Kootenai County

Prosecutor's Office during the time that it was prosecuting Gibson.

That attorney was ordered by the prosecutor's office and by the trial

court to speak to no one in the prosecutor's office regarding the

Gibson case and that attorney faithfully maintained the silence.

Nevertheless, Gibson asserts that the mere appearance of impropriety

is sufficient to require reversal. We disagree. Gibson has failed

to even allege, much less show, any actual prejudice. Annau v. -

Schutte, 96 Idaho 704, 535 P.2d 1095 (1975); see State v. Hobbs, 101

Idaho 262, 611 P.2d 1047 (1980); State v. Wolfe, 99 Idaho 382, 582

P.2d 728 (1978); Mahaffey v. State, 87 Idaho 233, 392 P.2d 423

(1964). See also Young v. State, 465 A.2d 1149 (Md. Ct. App. 1983).

Gibson asserts that the trial court should have excluded a

statement made by him to a California district attorney since there

was no compliance with I.C. § 19-853 in the obtaining of that state-

ment. I.C. § 19-853, in essence, requires that Miranda warnings

under certain circumstances be given in writing or otherwise recorded

and that the person questioned acknowledge in writing that he has

received the Miranda warnings. There is no contention that Gibson

did not receive the Miranda warnings or that the actions of the

California authorities did not comport with constitutional standards

set forth by the United States Supreme Court.

Hence, we restate the issue: should an Idaho court exclude

from evidence a statement taken in another jurisdiction admittedly in

compliance with the United States constitutional standards but not

obtained in compliance with an Idaho statute?

The major purpose behind the exclusionary rule is to assure

that police act properly in obtaining evidence from suspects by

removing the incentive to do otherwise. Michigan v. DeFillippo, 443

U.S. 31 (1979); United States v. Peltier, 422 U.S. 531 (1975); United

States v. Calandra, 414 U.S. 338 (1974); Mapp v. Ohio, 367 U.S. 643

(1961); E. CLEARY, McCORMICK ON EVIDENCE § 166 (2d ed. 1972).

"The deterrent purpose of the exclusionary rule neces-

sarily assumes that the police have engaged in will-

ful, or at the very least negligent, conduct which has

deprived the defendant of some right. By refusing to

APPENDIX '"'B"'-5

admit evidence gained as a result of such conduct, the

courts hope to instill in those particular irvestigat-

ing officers, or in their future counterparts, a

greater degree of care toward the rights of an

accused. Where the official action was pursued in

complete good faith, however, the deterrence rationale

loses much of its force.'' Peltier, supra, at 539;

Michigan v. Tucker, 417 U.S. 433, 447 (1ovGy:

It has also been stated that the Court would "simply decline

to extend the court-made exclusionary rule to cases in which its

deterrent purpose would not be served." Desist v. United States, 394

U.S. 244, 254 n.24 (1969); see also United States v. Calandra, supra;

Michigan v. DeFillippo, supra; United States v. Peltier, supra.

In the instant case, the California authorities acted validly

within the constraints of the United States Constitution and, insofar

as we are informed, followed the laws of their jurisdiction. We

find no basis to assume that excluding probative evidence validly

obtained by the California authorities in their jurisdiction would

deter their future conduct or the conduct of their counterparts in

other jurisdictions. Put simply, in a case of this type, there is no

rationale whatever for the application of the exclusionary rule and

since we deal here with the asserted violation of a state statute

rather than a violation of a constitutional right, we refuse to

invoke the exclusionary sanction to the statements made to the

California authorities.

Gibson next asserts that the trial court erred in admitting

evidence connecting Gibson with the death of Scott Currier since it

constituted evidence of another crime for which appellant was not on

trial. Generally, evidence of other crimes of a defendant is not

admissible at trial to show the criminal propensity of the defendant.

State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979); State v. Wrenn, 99

Idaho 506, 584 P.2d 1231 (1978). Evidence of other crimes may be

introduced, however, if that evidence falls within one of the

generally recognized exceptions to the general rule.

"However , this jurisdiction will admit evidence of

defendant s past criminal activity to prove: (1)

motive, (2) intent, (3) the absence of mistake or

accident, (4) a common scheme or plan embracing the

APPENDIX "'B"'-6

commission of two or more crimes so related to each

other that proof of one tends to establish the other,

(S) the identity of the person charged with the

commission of the crime on trial, and (6) other simi-

lar issues."' State v. Needs, supra at 892-3, 591 P.2d

at 139-40.

In the instant case, the evidence of the Currier death was not

presented for the purpose of showing Gibson's criminal propensity,

but rather for the purpose of showing motive and common scheme, and

to present, as stated by the trial judge, a "rational and cohesive’

which uses are permissible. State v. Izatt, 96 Idaho 667,

534 P.2d 1107 (1975); State v. Dayley, 96 Idaho 527, 531 P.2d 1172

(1975); State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert.

denied 401 U.S. 942 (1971).

Gibson argues, nevertheless, that the "other crime" rule dif-

scenario,"

fers in this case since the evidence being introduced related to a

crime for which Gibson had been acquitted. We disagree. See, e.g.,

Hernandez v. United States, 370 F.2d 171 (9th Cir. 1966); Buatte v.

United States, 350 F.2d 389 (9th Cir. 1965) cert. denied, 385 U.S.

856 (1966); Ladd v. State, 568 P.2d 960 (Alaska 1977) cert. denied,

435 U.S. 928 (1978); People v. Vaughn, 455 P.2d 122 (Cal. 1969);

People v. Douglas, 54 Cal.Rptr. 777 (1966); Davis v. State, 277 So.2d

311 (Fla. Ct. App. 1973); Jenkins v. State, 248 S.E.2d 33 (Ga.Ct.

App. 1978); State v. Darling, 419 P.2d 836 (Kan. 1966); People v.

Bolden, 296 N.W.2d 613 (Mich. Ct. App. 1980); State v. Schlue, 323

A.2d 549 (N.J. Ct. App. 1974); State v. Yormark, 284 A.2d 549 (N.J.

1971); State v. Smith, 532 P.2d 9 (Ore. 1975); State v. Tarman, 621

P.2d 737 (Wash. Ct. App. 1980). See also, Annot., Admissibility of

evidence as to other offense as affected by defendant's acquittal of

that offense, 86 A.L.R.2d 1132 (1962).

In the instant case, Gibson has not been charged with the

murder of Scott Currier. Hence, we are not required to decide

whether Gibson could be charged by a different sovereign, Idaho, for

a crime committed in its jurisdiction for which he had previously

been acquitted in Washington. Rather, Gibson stands charged with the

murder of Kimberly Palmer in Idaho. Hence, the double jeopardy

APPENDIX "B"-7

clause of the Fifth Amendment to the United States Constitution is

not specifically applicable to the case at bar. Nevertheless, it is

argued that the attendant collateral estoppel rule under Ashe v.

Swenson, 397 U.S. 436 (1970), precludes the trial of Gibson since the

ultimate issue has already necessarily been determined at a previous

trial. We disagree.

In Ashe, the defendant had been charged with robbing one of

six people who were engaged in a poker game. He was acquitted of.

robbing that one participant and acquitted. Thereafter, he was

charged and convicted of robbing a second participant. It was held

that the acquittal of robbing the first participant necessarily es-

tablished that he was not the gunman at the holdup and hence could

not be convicted for robbing the second participant.

The Ashe rationale is clearly distinguishable from the case at

bar. Gibson's acquittal of murdering Scott Currier in the State of

Washington does not necessarily establish that he did not participate

in the murder of Kimberly Palmer in Idaho. The Washington jury in the

Currier trial could have acquitted Gibson on any of a number of de-

fenses, including lack of jurisdiction. On the other hand, the Idaho

jury in the Kimberly Palmer trial could well have believed on the

evidence submitted that, while someone else killed Currier, Gibson

prevented Kimberly Palmer's escape from the scene of the Currier

murder, beat her unconscious, transported her into Idaho and there

participated in her murder. See King v. Brewer, 577 F.2d 435 (8th

Cir. 1978).

Regardless of Gibson's guilt or innocence of Currier's murder,

the evidence of that death is highly relevant as a motive for

Gibson's participation in the murder of Palmer. Hence, the doctrine

of collateral estoppel did not preclude introduction of the evidence

of Currier's death during the trial of Gibson for the murder of

Palmer.

Gibson next asserts prosecutorial misconduct in the calling of

one Colis to the stand during Gibson's trial. We disagree. The

State called Colis as a witness, who stated his name and address. He

APPENDIX "'B''-8

then was asked if he owned any kind of a vehicle. Before Colis could

answer, an attorney representing Colis, introduced himself and stated

that he had discussed the matter with Colis. At that point, upon the

request of Gibson's attorney, the jury was excused. It was only

after the jury left the courtroom that Colis' attorney informed the

court that he was instructing Colis to invoke the Fifth Amendment and

refuse to answer any questions. Colis affirmed that he was invoking

the Fifth Amendment privilege. At that point, the State offered to

extend immunity to Colis and offered to obtain a grant of immunity

from the State of Washington. The court held that the State could

not show Washington had extended immunity to Colis, therefore, Colis

was allowed to invoke the Fifth Amendment. Colis was then dismissed

and the jury recalled and instructed that they were not to draw or

make any inference or*draw any conclusion concerning the appearance

of Colis.

It is asserted that those facts merit reversal of the convic-

tion of Gibscn under a standard set forth in Namet v. United States,

373 U.S. 179 (1963). We disagree. In Namet it was stated that when

the prosecution calls a witness knowing that the witness would invoke

the Fifth Amendment and refuse to testify, no constitutional question

is involved, but merely a claim of evidentiary trial error, and that

such claim of error would have to be based either upon a "conscious

and flagrant attempt" of the prosecutor to build his case upon infer-

ences arising from that refusal to testify or a showing that

"inferences from a witness' refusal to answer added critical weight

to the prosecutor's case in a form not subject to cross examination

and thus unfairly prejudiced the defendant."' At pp. 185-187. Here,

neither of the two prongs of Namet are applicable.

Gibson admits the prosecutor made no "conscious and flagrant

attempt'' to build his case upon impermissible inferences and the

record is clear that the appearance of Colis added no "critical

weight" to the prosecution's case. See Douglas v. State of Alabama,

380 U.S. 415, 420 (1965); Cota v. Eyman, 453 F.2d 691 (9th Cir.

1971), cert. denied, 406 U.S. 949 (1972). Here, the jury saw Colis

APPENDIX ''B"-9

only identify himself. It can hardly be said that testimony or

presence added "critical weight" or any weight to the case of the

prosecution.

As above indicated, the jury was not present when Colis

invoked the Fifth Amendment privilege. See United States v. Edwards,

366 F.2d 853 (2d Cir. 1966), cert. denied, 386 U.S. 908 (1967). We

further note that when the jury reentered the courtroom, they were

instructed, "You are not to draw or make any inference or draw any °

conclusion concerning the appearance of Mr. John V. Colis in this

courtroom.'' Hence, even assuming that Gibson was somehow prejudiced

by the mere appearance of Colis in the courtroom, it was dissipated

by the court's instruction. See Namet v. United States, supra;

United States v. Edwards, supra.

Gibson also asserts that the trial court erred in its failure

to give the circumstantial evidence instruction approved in State v.

Holder, 100 Idaho 129, 594 P.2d 639 (1979). Here the record indicates

that the court adequately instructed the jury pursuant to the Holder

requirement, albeit at the beginning of the trial. We find no error.

We further note that the Holder ruling is required when "the evidence

linking the defendant with the [crime] was entirely circumstantial."

Holder at 133, 594 P.2d at 643, Here the evidence was far from

“entirely circumstantial.'' We find no error.

Gibson argues that during the closing argument the prosecutor

made two improper remarks which require the reversal of the convic-

tion. First, the ‘prosecutor utilized a "link in a chain" argument

stating that all of the other links had performed their duties and it

was now time for the jury to perform its duty. We find no error. See

State v. Larsen, 81 Idaho 90, 99, 337 P.2d 1, 6 (1959); Horn v.

State, 376 N.E.2d 512 (Ind. Ct. App. 1978); Fulgham v. State, 386

So.2d 1099 (Miss. 1980); see also Sparks v. State, 275 S.W.2d 494

(Tex. Ct. Cr. App. 1955).

Error is also asserted in the prosecutor making reference to

Gibson's silence during his trial for Scott Currter's murder in

Washington, i.e., "It's very strange that we have waited until a year

APPENDIX "'B"-10

has gone by, that the defendant has already been once in jeopardy in

the State of Washington and acquitted, and then now he wants to tell

the whole story, that of course he says [both murders] happened over

there [in Washington]. Why didn't he say this a year ago?" The

general rule governing such remarks is stated in State v. Hodges, _

Idaho _—,,_ _—_——~wPw2d ~ —S—é‘«(Octtce 19, 1983):

"It is clearly erroneous for a prosecutor to intro-

duce evidence of the defendant's postarrest silence

for the purpose of raising an inference of guilt. ..

- It is likewise erroneous for a prosecutor to comment

to ae, OP on the defendant's failure to testify at

trial.

Nevertheless, that general rule is otherwise when the defen-

dant himself takes the stand. As stated by the United States Supreme

Court, "{t]he interests of the other party in regard for the

function of courts of justice to ascertain the truth become relevant,

and prevail in the balance of considerations determining the scope

and limits of the privilege against self-incrimination." Jenkins v.

Anderson, 447 U.S. 231, 238 (1980); Brown v. United States, 356 U.S.

148, 156 (1958).

In Raffel v. United States, 271 U.S. 494 (1926), which was

relied upon and reaffirmed in Jenkins, supra, it was held that once a

defendant takes the stand in a second trial, after remaining silent

in his first trial, he may be cross examined as to why he remained

silent in the prior trial, his waiver of his Fifth Amendment right to

remain silent is total, and the permissible scope of cross examina-

tion is bounded only by the applicable rules of evidence. Jenkins,

supra, reaffirmed that, having waived his Fifth Amendment right to

remain silent by taking the stand, a defendant in a state trial may

be impeached by his silence in accordance with that state's

applicable rules of evidence. Under the standards set by Raffel and

Jenkins, it is permissible to impeach a defendant regarding his ear-

lier silence if the defendant takes the stand. However, we need not

base our decision upon Raffel and Jenkins here Gibson not cnly took

the stand, but commented upon his earlier silence. The rule under

these circumstances has been stated:

APPENDIX "B''-11

"The rule would seem to be well settled that where a

defendant in a criminal trial voluntarily takes the

witness stand in his own behalf he is subject to the

same rules applicable to other witnesses and may be

cross-examined in regard to all matters to which he

has testified on his direct examination or connected

therewith." State v. Larsen, 81 Idaho 90, 99, 337

P.2d 1, 5, 6 (1959); State v. Hargraves, 62 Idaho 8,

19, 107 P.2d 854, 858 (1940).

Once Gibson himself commented upon his earlier silence, he was

subject to prosecutorial cross-examination and comment upon that —

testimony. See Lockett v. Ohio, 438 U.S. 586 (1978); Bontemp v.

Fenton, 692 F.2d 954 (3d Cir. 1982), cert. denied, 103 S.Ct. 1506

(1983).

Gibson next asserts that the imposition of the sentence of

death is unconstitutional since here it was imposed by a judge rather

than a jury. Our late cases of State v. Sivak, ____ Idaho 2

P.2d ss (1983), and State v. Creech, /O5 Idaho 6/0 _P.24 Ye 3

(1983), are dispositive of this question.

Gibson next asserts that the trial court in its sentencing

procedure failed to comply with I.C. § 19-2515, and that those

failures of the trial court mandate resentencing. We disagree.

Gibson asserts that the trial court improperly weighed the mitigating

and aggravating circumstances in that the court grouped mitigating

circumstances into categories, i.e., lack of previous felony convic-

' "military record,"etc., and determined within each

tions," "age,'

category whether there were sufficient circumstances to mitigate the

actions of Gibson. That assertion misstates the facts. Gibson filed

with the court a "pre sentencing statement" in which he listed eight

items which he contended should be considered as mitigating: 1)a)

"Lack of previous felony convictions; b) Age - 30; c) Military

Record; and d) Family background. 2) Defendant's trial testimony; 3)

Polygraph Examination; 4) Testimony of C. Gordon Edgren, M.D., FAPA;

5) Testimony of Cal Henderson."

Each of those factors set forth by the defendant were examined

by the trial court and the court discussed why each, in turn, should

or should not be considered mitigating. The trial court then also

APPENDIX "B"~-12

considered factors not listed by the defendant which could possibly

be considered as mitigating. After considering each of those

possible mitigating circumstances, the trial court determined, in its

findings

"in considering death penalty under section 19-2515,

Idaho Code, the court has found one mitigating circunm-

stance, to-wit: the fact that the defendant has no

substantial prior criminal record. However, the court

does not find that such mitigating factor outweighs

the gravity of the aggravating circumstance found."

The trial court properly enumerated and considered mitigating

circumstances as required by I.C. § 19-2515, and State v. Osborn, 102

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

Gibson next asserts that the trial court erroneously, under

I.Cc. § 19-2515, improperly held his silence against him in

considering whether Gibson's cooperation with police should be

considered as mitigating. Again, that assertion misstates_ the

actions of the trial court. The court merely found that there was

nothing mitigating in the way Gibson dealt with the police since he

found there was no evidence that Gibson had cooperated with the

police. There was no showing that Gibson's silence in the Currier

murder trial was held against him in the sentencing process.

Gibson next asserts that the trial court erroneously found

that Gibson "aided and abetted in the killing of Kimberly Ann Palmer

in a very direct manner."' Although Gibson argues that the evidence

does not support the finding, we disagree. Gibson's own testimony

clearly established that he very directly aided and abetted in the

murder of Palmer. As noted previously, the jury was free to accept

any part of Gibson's testimony as true and any part of it as false.

Lono v. State, 629 P.2d 630 (Hawaii 1981); Hopkinson v. State, 632

P.2d 79 (Wyo. 1981), cert. denied, 455 U.S. 922 (1982). The jury

could, and apparently did, believe that Gibson beat Palmer

unconscious and participated in her transportation to the scene of

the murder in Idaho where she was strangled to prevent her from

APPENDIX "B''-13

telling of the murder of Scott Currier. Whichever version of the

evidence the jury chose to believe, it is clearly established therein

that Gibson intended that Kimberly Palmer die.

Gibson next asserts that persons who are mere aiders and

ebettors in a killing may not suffer the death penalty. Enmund v.

Florida, __—*%U.S. ___, 102 S.Ct. 3368 (1982), clearly indicates that

the death penalty is not an unduly severe punishment for an aider and

abettor to a murder when that person intends that a killing take -

place. As above noted, there can be no doubt from the evidence that

Gibson intended that Kimberly Palmer be killed in order to conceal

the circumstances of the death of Scott Currier.

I.C. § 19-2827 requires that we now conduct an independent

review of this cause and examine the total proceedings in the trial

court to ensure that the sentence of death was imposed without resort

to passion or prejudice or any other arbitrary factor, that the evi-

dence supports the trial court's findings of aggravating circum-

stances, and that the sentence of death is not excessive or dispro-

portionate.

We find that all of the procedures mandated in potential death

penalty cases were followed. Gibson was in attendance at the pro-

nouncement of sentence and written findings of the trial judge on

aggravating and mitigating circumstances were made. Gibson was given

notice that the State intended to ask for the death penalty and was

given notice of the State's intent to rely on the aggravating circum-

stances set forth in I.C. § 19-2515(£)(6) - (8), and (10). Gibson

was allowed to submit a document to the court setting forth what

Gibson felt were the mitigating circumstances that should be consid-

ered, and that document and its contents were considered by the trial

court. An aggravation/mitigation hearing was held, evidence was

taken, and arguments heard thereon. The trial court issued written

findings setting forth the mitigating factors he considered and the

aggravating factors he found beyond a reasonable doubt. One mitigat-

ing circumstance was found, i.e., the lack of significant previous

APPENDIX ''B"'-14

criminal convictions, and that circumstance was weighed against the

aggravating circumstance and found insufficient to stay the death

penalty. We find no error.

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

imposed in this case in comparison with the sentences imposed in

similar cases to ensure that the sentence in the instant case was not

excessive or disproportionate. We recently in State v. Creech,

supra, conducted an extensive review of Idaho murder cases. We find:

that the sentence imposed in the instant case is not disproportion-

ate to the sentence imposed in those cases reviewed in Creech where

the death sentence was available as a form of punishment. We also

have compared the instant case with our recent death penalty cases in

State v. Creech, supra, and State v. Sivak, supra, and find that the

sentence imposed in the present case is not disproportionate to the

sentences imposed in those cases. We note that the murder committed

in the instant case is similar to that committed in State v. Sivak,

supra, in that in Sivak the trial court found that one of the reasons

the victim was killed was to ensure the silence of the victim and

prevent her from identifying the defendant as the perpetrator of the

robbery. In the instant case, the trial court identified the motive

for killing Kimberly Palmer as insuring her silence about the circunm-

stances surrounding the murder of Scott Currier. We find the death

penalty imposed in the instant case to be both proportionate and

just.

The judgment of conviction and the sentence of death are

affirmed.

DONALDSON, C.J., and BAKES, J., concur.

APPENDIX "B"-15

e e@

HUNTLEY, J., concurring specially

I concur in the majority opinion with the caveat and reserva-

tion that I remain of the opinion that the Idaho capital sentencing

process is unconstitutional in two respects:

(1) It does not provide for utilization of the

jury, which violates both the Idaho and

United States constitutions; and

(2) The sentencing proceeding, as conducted by the

trial courts with the approval of this court,

deprives the accused of the right to cross-

examine and confront witnesses at the sentenc-

ing hearing and permits the admission of the

presentence investigation report and _ other

hearsay evidence.

My reasoning in this regard is set forth in detail in my dissenting

opinions in State of Idaho v. Creech, __ Idaho __, 670 P.2d 463

(1983), and State of Idaho v. Sivak, ___ Idaho : P.2d

(1983).

° 16 «

APPENDIX "B''-16

BISTLINE, J., dissenting.

Constitutionality of the Sentencing

Under the Idaho Constitution

Not in Creech, ! not in Sivak, 2 and again not in Gibson, has

the State presented any argument and authority to refute the

considered and substantiated views of Justice Huntley and myself

that a defendant convicted of first degree murder in Idaho is

possessed of a right guaranteed by the Idaho Constitution to have

a jury determine whether he shall live or die. While it is true

that justice Bakes attempted a refutation in his Sivak opinion,

it did not meet the documented history which establishes that at

the time of the adoption of our Idaho Constitution, and thereaf-

ter until the advent of Furman, a jury of a defendant's peers

made the awesome decision. The views of Justice Bakes are always

entitled to considerable deference, but in this particular area

it seems abundantly clear that the Justice simply has declined to

have a head-on confrontation with history. At some point in time

it behooves the State to address the issue. At the present time

it is apparently content to ride on the coattails of the Court's

Sivak opinion. As I have said before, the High Court's interven-

tion in the death penalty area of state law, while it may have

been needed in some of the southern states, as mentioned just

recently in the oral argument of the Attorney General in the

Aragon? case, was not needed in Idaho, the net result being the

legislature's passage of a statutory scheme that did not conform

1 State v. Creech, 105 Idaho ___, 670 P.2d 463 (1983).

2 State v. Sivak, Idaho ; P.2d __—s (1983) (1983

Opinion No. 118, released August 15, 1983).

3 State v. Aragon, Supreme Court No. 14771.

—)

APPENDIX "B"'-17

to the Constitution. The legislature, of course, can correct the

situation and cure this Court's inaction. Meanwhile Justice

Huntley and I remain unable to join any opinion of the Court's

where a jury has not been the sentencer.

Il.

Proportionality

Recent cases from the High Court make it abundantly clear

that that Court has decided to abandon the field, and has just

about completed its evacuation. The State of Louisiana v.

Williams is about to play out its last act in a drama extending

ten years. Maggio, Warden v. Williams, U.S. ___, November 7,

1983. With that opinion the High Court erased any requirement of

statewide proportionality, which issue of proportionality is

about all that remains of the High Court's prestigious opinions

of the seventies in death penalty cases. Proportionality may

well be discarded altogether in Pulley v. Harris, review granted

in 460 U.S. __, to examine the challenge that "the California

Supreme Court in Pulley had wholly failed to compare applicant's

case with other cases to determine whether his death sentence was

disproportionate to the punishment imposed on others." Maggio

v. Williams, U.S. at __. But, however the High Court's

opinion in that case may go,4 it should little affect the con-

ducting of the business of this Court in the area of proportion-

ality. The Idaho legislature in directing our automatic review

of death penalty sentences, I.C. § 19-2827, amongst other

provisions, requires that this "court shall determine ... (3)

whether the sentence of death is excessive or disproportionate to

the penalty imposed in similar cases, considering both the crime

and the defendant."

4 The California Supreme Court's opinion is reported at 623

P.2d 240 (1981). It contains no discussion of proportionality in

examining the penalty phase.

» 16 -

APPENDIX "B''-18

In Sivak it was appropriate for this Court to compare his

sentence with that of Bainbridge, his co-defendant who was by

some unexplained mishap accorded a separate trial. (The sen-

tences were death to Sivak, life for Bainbridge--both convicted

of first degree murder for killing the same woman.) The Court

did not do so, however. In Creech it was in order for the Court

to compare his sentence with the recent similar cases of Osborn

Court footnoted a string of citations, some of which were first

degree murder convictions, and a good many of which were not.

For instance, in State v. Otto, 102 Idaho 250, 629 P.2d 646

(1981), the conviction was of attempted first degree murder.

Otto was charged with contracting for a murder, but, mistakenly

dealing with a police officer, no murder took place. In State v.

Lopez, 100 Idaho 99, 593 P.2d 103, the crime of which defendant

was convicted was assault with intent to commit murder, and the

sentence was five years. The defendant in State v. Garcia, 102

Idaho 378, 630 P.2d 665 (1981), was convicted only of conspiracy

to commit murder. It is difficult to accept that the three

justices who comprised the Creech majority made the "extensive

and thorough review of Idaho murder cases" which it proclaimed in

footnote 2, p. 476 of 670 P.2d, and at p. __ of 105 Idaho.” More

important is the question as to whether the Court is following

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

6 State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981).

7 Basing its holding on this Creech language, the Sivak

majority said as to proportionality:

"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 dispropor-

tionality in this particular case."

State v. Sivak, Idaho , P.2d __—s- (1983) (1983 Opinion

No. 118, released August 15, 1983).

APPENDIX "'B''-19

* ee .

the mandate of I.C. § 19-2817(3)--which requires the proportion-

ality review to be of the penalties imposed in similar cases. To

date, other than the declaration in the Creech footnote, I do not

see the Court as demonstrating that it has considered at all

those cases where the penalty of life imprisonment was imposed.

In Creech, Osborn II, and in Sivak, the dissenting opinions have

suggested a considerable number of current first-degree murder

cases where the death penalty was not imposed. As has been

pointed out, district judges are required to transmit to this

Court and to the attorney general copies of their § 19-2515

findings in all first degree murder sentencings whenever the

death penalty has been imposed. An obvious shortcoming of the

statute, I.C. § 19-2827(a) is the omission to require the

transmission of the § 19-2515(d) findings where the death penalty

has not been imposed. Any respectable proportionality review has

to include findings made in all cases where the sentencing court

decides between life and death. Although I have previously

brought attention to this shortcoming, and believe that for the

most part no one disagrees, the Court has done nothing. Other

than for my own attempt at collecting all of such cases, and

other than where there have been appeals from first degree murder

convictions and imposed life sentences, the Court does not

operate with a full deck. The legislature clearly contemplated

that the Court would rise to its responsibility, as noted by

language to that effect contained in § 19-2827(a). Two recent

cases where the sentence was not death have been forcibly brought

to the attention of the Court by the State's petition for our

review from decisions of the Court of appeals. State v. Kelly

Wilson, ___ Idaho » P.2d _—s-« (1983) (Supreme Court No.

14472); State v. David Wilson, | Idaho, __—sSP«2d ss (1983)

(Supreme Court No. 14466). Continuing with my own effort at

providing the trial bench and the district courts with at least

as much knowledge as have I in regard to proportionality, I have

appended the trial judge's § 19-2515 findings in those two cases.

—

APPENDIX "'B"-20

This case is much like that of Bainbridge, 8 which was

discussed in Sivak. The sentencing judge here observed in his

I.C. § 19-2515 findings that “the jury could have, and likely

did, find that the defendant aided and abetted in Palmer's death

and, consequently was guilty as a principal pursuant to the

provisions of I.C. § 18-402." R., p. 689. The judge

"found, beyond a reasonable doubt, that:

"(n) That either the defendant, Donald

Paradise, or Larry Evans actually killed Kimberly

Ann Palmer.

(o) That the defendant either directly

committed the act constituting the premeditated

murder of Kimberly Ann Palmer or aided and abetted

in its commission."

R., pp. 695-96.

The sentencing judge reflected upon the defendant's contrary

argument:

"The primary arguments raised by the defen-

dant in opposition to any finding that the killing

was accomplished in a manner exhibiting an utter

disregard for human life are, first, that the

defendant is not guilty, i.e., that he did not

kill Kimberly Ann Palmer, and, second, that there

is no evidence that the defendant actually killed

Miss Palmer.

"The problem with the first of these argu-

ments is that the jury found to the contrary. The

second argument is essentially an argument that,

even though the defendant has been convicted as a

principal in the murder, in order to sentence him

to death for such crime, there must be evidence

that he actually was the one who directly commit-

ted the manual strangulation of Kimberly Ann

Palmer."

8 State v. Bainbridge, Supreme Court No. 14544, scheduled for

oral argument January 14, 1984.

« 2s

APPENDIX "B''-21

Elaboration is unnecessary. Under any reasonable propor-

tionality review of similar cases, and Bainbridge is one, the

death penalty imposed on Gibson is extremely questionable. More

flagrant murderers were those in Osborn II and LePage, both of

whom were unquestionably the actual murderers. Gibson, on the

other hand, according to the trial court, may or may not have

been the person out of three possibles who attended to the

strangling of the victim, or was but an aider and abettor. Thus,

the case is seen to bear enough resemblance to Enmund v. Florida,

102 S.Ct. 3368 (1982), to require some comment. Enmund was the

driver of the getaway vehicle in a planned robbery during which

two principals killed the victims. There was no showing that

Enmund intended the killings, only that he was, as here, a

participant in the affair leading to the death of the victim.

The court resolved the question in Enmund's favor.

"(I]t is for us ultimately to judge whether the

Eighth Amendment permits imposition of the death

penalty on one such as Enmund who aids and abets a

felony in the course of which a murder is commit-

ted by others but who does not himself kill,

attempt to kill, or intend that a killing take

place or that lethal force will be lr ps We

have concluded, along with most legislatures and

juries, that it does not.

", . . The question before us is not the

disproportionality of death as a penalty for

murder, but rather the validity of capital

punishment for Enmund’s own conduct. The focus

must be on his culpability, not on that of those

who committed the robbery and shot the victims,

for we insist on ‘individualized consideration as

a constitutional requirement in imposing the death

sentence.'"

U.S. at ., 102 §.Ce. at (emphasis

added).

The court held that since Enmund's criminal culpability extended

only to the robbery, imposition of the death penalty for Enmund's

own culpability was excessive and disproportionate and thus a

APPENDIX "B"-22

violation of the eighth amendment. Whether Gibson was in fact an

aider or abettor was also an issue, and one upon which the court

below found it necessary to give instructions requested by the

prosecutor:

"YOU ARE INSTRUCTED that to aid and abet

means to knowingly assist, facilitate, promote,

encourage, counsel, solicit or invite the commis-

sion of a crime.

"YOU ARE INSTRUCTED that all persons con-

cerned in the commission of a crime, whether it be

felony or misdemeanor, and whether they directly

commit the act constituting the offense or aid and

abet in its commission, are principals in any

crime so committed, and as principals are guilty

of any crime so committed."

The majority opinion accurately sets forth damaging testimony

which Gibson himself gave, omitting only that Gibson added that

he left the room after ascertaining that Palmer was alive, and

returned to find "Larry Evans was straddled over her choking her

. . I saw Kimberly Palmer choked, she turned blue."--and

admitted making no attempt to stop him because he was afraid to.

Gibson's testimony as to his complicity is extremely damaging,

and clearly he was an aider and an abettor, and perhaps solely

responsible for the detention of the victim which but for such

might have allowed her to escape being murdered.

I do not say that Enmunds requires this Court to eutomatic-

ally set aside the death penalty. But I do say ‘hat Enmunds,

coupled with the sentencing judge's findings and remarks, do

require discussion and consideration. Does the record sustain

this Court, an appellate court, in concluding that Gibson

intended that a killing take place, Enmunds, supra, where the

sentencing court made no such finding? It is readily apparent

from the Findings that the district court believed there was no

distinction whatever between finding a defendant guilty as an

aider and abettor as against executing an aider and abettor:

o 23 «

APPENDIX "B''-23

"The court has been provided with no authority

which holds that the general law applicable to

persons convicted as a principal for a criminal

offense (Idaho Code Section 18-204) is altered in

any manner because the potential penalty involved

is death. Thus, it requires no citation of

authority to state that the law in Idaho has long

been that a person who aids and abets in the

commission of a crime is equally guilty as one who

directly commits the act; and, of course, is

subject to receiving the maximum punishment

allowed by law. The crime of Murder In The First

Degree can be punished by death. Idaho Code

Section 18-4004. Neither that section of the code

nor the sentencing provisions of I.C. 19-2515

provides for any different penalty in the event

the conviction was had upon the basis that the

defendant only aided and abetted in the commission

of the crime.

"It must, therefore, be concluded that the

legislature intended that a person who aided and

abetted in the commission of the crime of Murder

In The First Degree could be sentenced to death

providing that the circumstances were such that

the imposition of the death penalty was warranted

pursuant to the provisions of Idaho Code Section

19-2515."

R., p- 699.

Enmunds seems to be to the contrary.

—' oe

APPENDIX ''B''-24

APPENDIX "A"

IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE

STATE OF IDAHO, IN AND FOR THE COUNTY OF CANYON

STATE OF IDAHO

Plaintiff, FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY,

UNDER SECTION 19-515

IDAHO CODE

Vv.

DAVID ZYNN WILSON,

Defendant.

ee a ee a a

Criminal #C-4906

The above-named defendant having been convicted of the

criminal offense of First Degree Murder, a felony, Idaho Code

Sections 18-4001/18-4003, which under the law authorizes the

imposition of the death penalty; and the Court having Ordered a

pre-sentence 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 offense;

NOW THEREFORE the Court hereby makes the following findings:

l. CONVICTION. That the defendant while represented by

Court-appointed counsel was found guilty of the offense of First

Degree Murder, a felony, Idaho Code Sections 18-4001/18-4003,

pursuant to a plea of guilty.

2. PRE-SENTENCE REPORT. That a pre-sentence report was

prepared by Order of the Court, and a copy delivered to the

defendant or his counsel pursuant to Section 19-2515, Idaho Code,

and the Idaho Criminal Rules.

3. SENTENCING HEARING. That a sentencing hearing was held on

December 3 and 4, 1981, 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.

1) Defendant was not the trigger man and was, in fact,

outside the building when the killing occurred.

2) No evidence that David had instructed Kelly to kill any

of the victims if anything went wrong.

5. FACTS AND ARGUMENT FOUND IN AGGRAVATION.

A-1l

APPENDIX "B''-25

1) Not able to cope with pressure and may act out against

society again.

. 2) Background includes extensive use of drugs and/or

alcohol.

3) Nothing parents of defendant have done in the past has

served as a deterrent.

4) Extensive prior criminal record.

5) Capable of manipulation and remorse is questionable.

6) Moral character is undesirable.

7) Dishonorable discharge from service.

8) Uncooperative while on probation and under supervision

in the past.

9) Acknowledged he has been a bad example and does not

desire to be a good example even for his own family members.

6. STATUTORY AGGRAVATING CIRCUMSTANCES FOUND UNDER SECTION

19-2515(4), IDAHO CODE

1) The murder was especially heinous, atrocious or cruel,

manifesting exceptional depravity.

2) By the murder, or circumstances surrounding its

commission, the defendant exhibited utter disregard for human

life.

3) The murder was one defined as murder of the first

degree by Section 18-4003, Idaho Code, Subsection (d), and it was

accompanied with the specific intent to cause the death of a

human being.

7. REASONS WHY DEATH PENALTY WAS NOT IMPOSED. Defendant did

not pull the trigger and had left the building when gun was

fired; no competent evidence that he advised or suggested that

Kelly use the gun if anything went wrong; Prosecution recommenda-

tion would increase the costs of appeal and lend weight to the

defendant's arguments that the death penalty should not have been

imposed.

CONCLUSION

That the death penalty should not be imposed on the defen-

dant for the capital offense of which he was convinced.

A-2

APPENDIX "B''-26

Dated this 7th day of December, 1981.

/s/ Edward J. Lodge

District Judge

A-3

APPENDIX "B''-27

» IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE

STATE OF IDAHO, IN AND FOR THE COUNTY OF CANYON

STATE OF IDAHO,

Plaintiff, FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-515,

IDAHO CODE

Vv.

KELLY BRIAN WILSON,

Defendant.

ws SS SO

Criminal #C-4906

The above-named defendant having been convicted of the

criminal offense of First Degree Murder, a felony, Idaho Code

Sections 18-4001/18-4003, which under the law authorizes the

imposition of the death penalty; and the Court having Ordered a

pre-sentence 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 offense;

NOW THEREFOR the Court hereby makes the following findings:

l. CONVICTION. That the defendant while represented by

Court-appointed counsel was found guilty of the offense of First

Degree Murder, a felony, Idaho Sections 18-4001/18-4003, pursuant

to a plea of guilty.

2. PRE-SENTENCE REPORT. That a pre-sentence report was

prepared by Order of the Court, and a copy delivered to the

defendant or his counsel pursuant to Section 19-2515, Idaho Code,

and the Idaho Criminal Rules.

3. SENTENCING HEARING. That a sentencing hearing was held on

December 3 and 4, 1981, 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.

1) The defendant was 19 years old when the offense was

committed.

2) The defendant has no prior record (including no

misdemeanors).

3) Defendant comes from a loving family that continues to

support Kelly.

A-4

APPENDIX "B"-28

4) Defendant expresses remorse and is receptive to

: punishment.

“ 5) The defendant pled guilty.

6) Prosecuting Attorney recommended against the death

penalty...

7) Testimony supports a finding that the crime was out of

character for Kelly and would not have happened but for the

influence of his older brother and the fact that they had been

drinking.

8) The defendant is not likely to commit a similar crime

in the future.

5. FACTS AND ARGUMENT FOUND IN AGGRAVATION. The crime fit all

the material requirements of First Degree Murder, i.e. -inten-

tional - malicious - deliberate and premeditated - no provocation

for the offense.

6. | STATUTORY AGGRAVATING CIRCUMSTANCES FOUND UNDER SECTION

T9-2512(f), IDAHO CODE.

1) The murder was especially heinous, atrocious or cruel,

manifesting exceptional depravity.

2) By the murder, or circumstances surrounding its

commission, the defendant exhibited utter disregard for human

life.

3) The murder was one defined as murder of the first

degree by Section 18-4003, Idaho Code, Subsection (d), and it was

accompanied with the specific intent to cause the death of a

human being.

7. REASONS WHY DEATH PENALTY WAS NOT IMPOSED. The defendant's

age and the fact that he did not have any prior record of any

kind were persuasive in my decision that the crime was out of

character for the defendant, and similar conduct would not likely

occur in the future. The defendant was intoxicated and under the

influence of his brother. Prosecution recommendation would lend

weight to the defendant's arguments on appeal and increase the

expense to the county.

CONCLUSION

That the death penalty should not be imposed on the defen-

dant for the capital offense of which he was convicted.

A-5

APPENDIX '"'B"'-29

Dated this 7th day of December, 1981.

/s/ Edward J. Lodge

District Judge

A-6

APPENDIX ''B"-30

In the Supreme Court of the State of Idaho

STATE OF IDAHO, aaah

NO. 14425 “RE > 1984

Plaintiff-Respondent,

REMITTITUR

THOMAS HENRY GIBSON,

Defendant-Appellant.

TO: FIRST JUDICIAL DISTRICT COURT, COUNTY OF KOOTENAI.

The Court having announced its Opinion in this cause

December 15, 1983, which has now become final; therefore,

IT IS HEREBY ORDERED that the District Court shall

forthwith comply with the directive of the Opinion, if any

action is required.

DATED this 14th day of February, 1984.

hihi

STATE OF IDAHO

record in my office.

WITHERS my hand end the Seal of the Cour.Z/1/3 4 |

FREDERICK C. LYON i

APPENDIX "'C"

IDAHO SUPREME COURT/COURT OF APPEALS

STATE OF IDAHO,

Plaintiff-Respondent, ORDER

Vv. NO. 14425

THOMAS HENRY GIBSON,

SS SY SY SY SS SS SS 8S SS

Defendant-Appellant.

COUNSEL:

The Court has ORDERED that Appellant's PETITION FOR REHEAR-

ING filed January 3, 1984, of the Court's Opinion issued December 15,

1983, be, and hereby is, DENIED.

DATED this HE aay of February, 1984.

By Order of the Supreme Court

7 4

se LIN 2

cc: Counsel of Record Frederick C. Lyon; erk

Supreme Court/Cour€ of Appeals

State of Tdaho

APPENDIX ''D"

| LOPY

IN THE DISTRICT COURT OF THE FIRST -JUDICIAL DISTRICT OF THE

STATE OF IDAHO, IN AND FOR THE COUNTY OF KOOTENAT

STATE OF IDAHO,

)

) Supreme Court No. 14425

Plaintiff/Pespondert, )

)

District Court No. F 29470

THOMAS HENRY GIBSON , ) LPON REMETTITUR

efendant /Aopel lant )

\ i | \ ‘ ( ( i! DARROY

IRDNER, Warden. Idano State Penitentiar:

REAS, the above-named Defendant, THOIAS HENRY GIBSON,

was found bv a urvy of twelve persons to be GUILTY of MURDER

N THE FIRST DEGREE as so stunted in their verdict rencered

June 380, 1LOSl: and,

on November 5, 1981, the above-entitled Court

aid enter its Judgment and Sentence based upon said verdict

and uvnon its Findings of the Court in Consicering Death Penalty

Under Section 19-2515, Idaho Code, that the Defendant is

GUILTY cf MURDER IN THE FIRST DEGREE and snould be punished

by infliction of death in accordance with Idaho Code Section

19-2716: and,

WINEREAS. on November 5, 1981, the Court issued a Death

DEATH WARRANT

UPON REMITTITUR: 1 PY

APPENDIX "E"'-1l Q

‘arrant commandiag that said purishamert be bas lietcd on

SAS. rhereafter appeal was naa to tne, Tdaho Sunreme

Court from the Jtucdement o° Conviction resvltins in stay of

execution pursuant to Tdaho Code Section 19.2802: anc,

UVEEREAS, said appeal Ras pow beet, decided, with Petition

For Rehearing being Genica, resultine in oaffirmarce of sare

coprvietion ard sentence imposed, and Remittitur Ravr1ie- yee.

repdered on February 14, 1°84, orcering the above-ert it le!

Court to comply with the Crreetive of tas brio unon appeal

iO1 BEPCFORE. YOu ABU HERERV COMUANPED to rine tae

;

i ;

~(}! : : } ! ‘ ’ COT: # ’ | litt I t I ( «) Sect 1¢

O77 16 ad the Judpment ang Orcet Crs Cour’ tuat oO

: ! ‘ ; ‘ } re ee i +4 \t Tye ’ ( Te) ' (

risnmert oft daeathy lnm, tne ane? prescrie a) 1 eratutee

less the execution Of Cals warrant te? Tso accord iE To

law: thereafter, return upon Ces warrant sSnall ve made it

actordanece with Idaho Code Section lees Ley.

DATED this /é: day of February, 1984.

wig

y, re DI a ee

‘cea Mh ee

Gary). Maman. District cucre

APPENDIX "“E"-2

ann ae eet

—-

IN THE SUPREME COURT OF THE STATE OF IDAHO

STATE OF IDAHO,

Plaintiff/Respondent, No. 14425

vs.

THOMAS HENRY GIBSON,

Defendant/Appellant.

BRIEF OF APPELLANT

Appeal from the District Court of the First

Judtctal District of the State of Idaho,

tn and for the County of Kootenai

HONORABLE GARY HAMAN

District Judge

MICHAEL J. VRABLE DAVID H. LEROY

307 Elder Building Attorney General,

Coeur d'Alene, ID 83814 State of Idaho

Statehouse

Boise, ID 83720

Attorney for Attorney for

Defendant /Appellant Plaintiff/Respondent

EXHIBIT "F"

ES, FOF ee eS FR i ae ne Pe et ee ee

OE EE Oe I NE SET | REO a ts A ES ET EN a OI LG, TE tian, Oi OO eT i cet lls al lo.

TABLE OF CONTENTS

ey a | PRT ES See TT eee ee 2

eg | a ere

Argument

oe ee ee ee eS ee ee ee es ee ne ee a ee ee ee a

UE eo le a on cl op Ove aie ny ee 54

Ee ve 6) aval “al asd bra aN ye ioe ee Ales a aa eae 59

RC i org te Ns aan Aes tate 62

PI ee oy Ore 5 be tenn ake ode oar es ea 70

I oN a I ee he ae a ee ee NO 2 ee 75

STATEMENT OF THE CASE

(i)

This is an appeal from a conviction for first degree murder

and an imposition of the death sentence.

(ii)

The Defendant was arrested on June 25, 1980, and tried in

‘the State of Washington for the murder of Scott Currie. He

was acquitted of that crime, following a jury trial, on

September 22, 1980.

On November 25, 1980, Defendant was arrested, on an Idaho

warrant, for the murder of Kimberly Palmer. The trial on that

charge was held on June 22-30, 1981. The jury returmed a

verdict of guilty of murder in the first degree.

The trial court, on November 2, 1981, sentenced the

Defendant to death.

(iii)

The evidence at trial showed that the bodies of Scott

Currie and Kimberly Palmer were found on June 22, 1980, in

aremote area about 2-1/2 miles south of Post Falls, Idaho.

Physical evidence found with the two bodies and inside a

Spokane, Washington, resident tended to show Scott Currie's

death had occurred in Washington.

The Prosecutor's theory, which was supported only by

circumstantial evidence, was that Kimberly Palmer was killed

in Idaho.

ISSUES PRESENTED ON APPEAL

A-I.

THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY IN FAILING

TO COMPLY WITH THE REQUIREMENTS OF IDAHO CODE §19-2515

A-II,

DEFENDANT'S DEATH SENTENCE, IMPOSED UNDER IDAHO CODE §19-2515

WITH NO PARTICIPATION BY A JURY IN THAT SENTENCING CHOICE, VIOLATES

THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION

EVIDENCE TENDING TO SHOW DESENDANT'S COMMISSION OF AN UNRELATED

CRIME SHOULD NOT HAVE BEEN ADMITT1D

Cc.

THE TRIAL COURT ERRED IN NOT INCLUDING IN ITS INSTRUCTION ON

CIRCUMSTANTIAL EVIDENCE DIRECTIONS TO THE JURY THAT, WHEN CIRCUM-

STANTIAL EVIDENCE IS SUSCEPTIBLE OF AN INTERPRETATION POINTING TO

THE DEFENDANT'S INNOCENCE, THE JURY MUST ADOPT THAT INTERPRETATION

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF DEFENDANT'S

STATEMENT, MADE IN CALIFORNIA, IN VIOLATION OF IDAHO CODE §19-2515

THE TRIAL COURT ERRED IN NOT GRANTIIG A MISTRIAL WHEN A

PROSECUTION WITNESS REFUSED TO TESTIFY

THE TRIAL COURT ERRED IN NOT DISQUALITYING THE KOOTENAI

COUNTY PROSECUTOR'S OFFICE BECAUSE OF AN A?PEARANCE OF IMPROPRIETY

;

}

PROSECUTOR'S IMPROPER CLOSING ARGUMENT DENIED DEFENDANT

A FAIR TRIAL

THE TRIAL COURT ERRED IN NOT DISMISSING THE INFORMATION FOR

LACK OF PROBABLE CAUSE AT THE PRELIMINARY HEARING

POINTS AND AUTHORITIES

1. Mitigating circumstances are those things that, in

fairness and mercy, may be considered as extenuating or reducing

a defendant's culpability.

Black's Law Dictionary (5th Ed. 1979)

State v. Osburn, 102 Idaho 187, 631 P.2d 196 (1981)

2. Mitigating circumstances include a defendant's background,

his age, upbringing and environment or any other matter appropriate

to a determination of the degree of culvability.

State v. Owen, 73 Idaho 394, 403 253 P.2d 203 207-208 (1953)

3. The Fifth Amendment right of a defendant to remain silent

applies to sentencing proceedings.

Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68

L.Ed.2d 359 (1981)

Due process applies to sentencing proceedings.

Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51

L.Bba. 333 (A977)

Evidence of unrelated criminal acts is not admissible.

State v. Wrenn, 99 Idaho 506, 510, 584 P.2d 1231,

1235 (1978)

5. The requirement that an informati-n specifically state

the offense charged so that a defendant can vroperly vrepare his

defense is a constitutional right.

U.S. Const. amend, VI

Idaho Const., art. I, §13

State v. Gumm, 99 Idaho 549, 551, 585 P.2d 959, 961

(1978)

6. For the Prosecution to use evidence of a defendant's

unrelated criminal acts, for which the defendant has been acquitted,

is inconsistent with the notions of a fair trial.

McMichael v. State, 638 P.2d 402 (Nev. 1982)

State v. Perkins, 349 S.2d 161 (Fla. 1977)

State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960)

7. The doctrine of collateral estoppel is embodied within

the double jeopardy clause of the United States Constitution.

Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29

L.Ed.2d 549 (1971)

Ash v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25

L.Ed.2d (1970)

8. The double jeovardy claus¢ of the United States

Constitution is binding on a state through the Fourteenth

émendment.

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23

L.Ed.2d 707 (1969)

9. Collateral estoppel prevents the admission of all

evidence of a criminal act of which a tlefendant has been acquitted.

United States ‘v. Keller, 624 ¥.2d 1154 (3d Cir. 1980)

United States v. Mock, 604 F.2d 341 (5th Cir. 1979)

United States v. Day, 591 F.2d 861 (D.C. Cir. 1979)

State v. Funkhower, 30 Wash. A»opv. 617, 637 P.2d 974

(1981)

10. A state Supreme Court may interpret the state constitution's

double jeopardy clause as according greater protection than that

accorded by the double jeopardy clause of the United States

Constitution.

People v. Belcher, 113 Cal. Rptr. 1, 520 P.2d 385 (1974)

11. In a criminal prosecution based upon circumstantial

evidence, it is error to not include an instruction in circum-

stantial evidence that says:

You are not permitted to find the

defendant guilty of a crime...based

on circumstantial evidence unless

proved circumstances are not only

consistent with the theory that the

defendant is guilty... but cannot

be reconciled with any other rational

conclusion...

[Il]£ the evidence is susceptible of

two reasonable interpretations, one

of which points to the defendant's

guilt and the other to his innocence,

it is your duty to adopt the inter-

pretation which points to the

defendant's innocence...

State v. Holder, 100 Idaio 129, 594 P.2d 639 (1979)

State v. Davis, 69 Idaho 290, 206 P.2d 271 (1949)

State v. Curry, ____ Idaho App. ____, 647 P.2d 788 (1982)

12. The Supreme Court will review an issue presented on

appeal, even absent objection at trial, if fundamental error

is involved.

State v. LePage, 102 Idaho 387, 630 P.2d 674, 677 (1981)

State v. White, 97 Idaho 708, 714, 551 P.2d 1344,

1350 n. 8 (1976)

State v. Cariaga, 95 Idaho 900, 904 523 P.2d 32, 35

(1974)

13. Error that goes to basis of a defendant's rights or

to the foundation of the case, or that detracts from a defendant's

defense is fundamental error.

Smith v. State, 94 Idaho 469, 475, 491 P.2d 733,

739, n. 13 (1971)

State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459, 462

(1942)

14. Failure to give the prover instruction on circumstantial

evidence when the prosecution's case consists solely of circunm-

stantial evidence is fundamental error, and conviction should be

reversed, even if defendant failed to request the instruction.

State v. Love, 106 Ariz. 215, 474 P.2d 806, 807 (1970)

15. The trial court, on its own, must give all instructions

that correctly inform the jury of the nature and elements of the

crime and of the essential legal principles applicable to the

evidence in the case.

State v. Benson, 95 Idaho 267, 275, 506 P.2d 1340, 1348

(1973)

16. If a person is detained by a law enforcement officer

on a charge of a serious crime, the officer shall clearly inform

that person of his right to counsel; that information shall be

in writing or otherwise recorded; and the officer shall record

the detained person's acknowledgement »f receipt of that information.

Idaho Code §19-853

17. The constitutional right to assistance of legal counsel

applies to extrajudicial interrogation by the police of an

accused person.

Miranda v. Arizona, 384 U.S. 43¢, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966)

Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12

L.Ed.2d 977 (1964)

Messiah v. United States, 377 U.3. 201, 84 S.Ct. 1199,

12 L.Ed.2d 246 (1964)

State v. LePage, 102 Idaho 387, 630 P.2d 674, 679 (1981)

18. Suppression is the proper sanction for evidence obtained

in violation of a statutory right.

State v. Rauch, 99 Idaho 586, 586 P.2d 671 (1978)

19. Absent evidence of the law of a foreign jurisdiction,

that jurisdiction's law will be »resumed the same as Idaho's.

Barthel v. Johnston, 92 Idaho 94, 96, 437 P.2d 366, 368

(1968)

Reynolds v. Continental Mortgage Co., 85 Idaho 172,

178, 377 P.2d 134, 137-138 (1962)

20. The violation of the right to legal counsel occurs when

a statement of a defendant, taken in absence of counsel, is used

in trial against the defendant.

Brulay v. United States, 383 F.2d 345, 349, n. 5 (1967)

21. The calling of a witness who the Prosecutor knows will

refuse to testify is reversible error if the inference from the

witness' refusal unfairly prejudiced tie defendant.

Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151,

10 L.Ed.2d 278 (1963)

22. Once the Prosecutor has benefited from a witness's

refusal to testify the burden of showing the defendant was not

prejudiced is on the State.

State v. Vega, 85 N.M. 269, 511 P.2d 755 (1973)

23. A Prosecutor's comment on a defendant not testifying

at trial or at a previous proceeding is furdamental error.

State v. Haggard, 94 Idaho 249, %51-52, 486 P.2d 260,

262-63 (1974)

Griffith v. California, 380 U.S. 309, 85 S.Ct. 1229,

14 L.Ed.2d 106 (1965)

me ee ee Ss i a a rs | ne nw ee

24. A Prosecutor's use of a defendant's silence to raise an

inference of guilt is fundamental error.

State v. White, 97 Idaho 708, 714-15, 551 P.2d 1344,

1350-51 (1976)

25. A Prosecutor's use of arguments calculated to anpeal

to hte jury's passions and vrejudices is error.

State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980)

State v. Spense, 74 Id2ho 173, 258 P.2d 1147 (1953)

State v. Givens, 28 Idzho 253, 152 P. 1054 (1915)

26. The State has the burden of proving that misconduct

during closing argument did not contribute to the jury's verdict.

State v. Smoot, 99 Idaho 855, 590 P.2d 1001 (1978)

27. A Prosecutor's comment to the jury suggesting that the

Prosecutor and the Judge are on the came team is error.

State v. Woodward, 21 Ariz. App. 133, 516 P.2d 589 (1973)

28. The Prosecutor's Office should be disqualified when an

attorney, who represented the defendant, goes to work for the

Prosecutor.

People v. Shinkle, 51 N.Y.2d 417, 415 N.E.2d 909 (1980)

State v. Chambers, 86 N.M. 383, 524 P.2d 999 (1974)

State v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (1972)

29. Only if probatle or sufficient cause to believe a

defendant committed an offense is shown at a vreliminary hearing

can he be bound over to district court.

Idaho Criminal Rule 5.1

30. For there to be probable or sufficient cause the evidence

must be such as to lead a reasonable man to believe the defendant

probably or likely committed the offense.

Martinez v. State, 90 Idaho 229, 232, 409 P.2d 426,

427 (1965)

31. Unless a defendant is properly bound over in a

preliminary hearing, the district court lacks jurisdiction

to try him.

State v. Ruddell, 97 Icaho 436, 439, 546 P.2d 391,

394 (1976)

» ie

A-I

THE TRIAL COURT ERRED IN IMPOSING THE DEATH

PENALTY IN FAILING TO COMPLY WITH THE

RECUIREMENTS OF IDAHO CODE SECTION 19-2515

Following the jury's verdict, the trial court made written

findings under Idaho Code §19-2515. R. Vol. III, pp. 684-703.

In those findings, the court considers eleven possible mitigating

factors. Only one factor was found to be mitigating -- the

Defendant had "'no significant history of criminal activity”.

R. Vol. III, p. 686.

The trial court then found that the Defendant, in his crime,

had "exhibited an utter disregard for human life". R. Vol. III,

p. 702. This finding was based, in part, on the Defendant's

trial testimony.

In stating its reason for imposing the death penalty,

the court said that mitigating factor did not outweigh the

gravity of the aggravating circumstances. R. Vol. III, p. 702.

Under Idaho Code §19-2515(d) a trial court is supposed

to "set forth in writing any mitigating factors" it considers

and to balance them against any "aggravating circumstances".

If the mitigating circumstances outweigh the aggravation, "so

as to make unjust the imposition of the death penalty" then

sentence can not be imposed.

Although at first appearance the court complied with

Code Section 19-2515, a closer look at its findings shows

ofha

three faults.

(1)

The first fault is that the trial court, by considering

mitigating factors grouped under several headings, eliminated

genuine mitigating circumstances that should have been balanced

against the aggravating circumstances.

For example, even though the trial court stated that

Defendant's family was supportive whichimplies a favorable

factor towards rehabilitation, found his "family background" was

not a mitigating circumstance. R. Vol. III, pp. 687-88.

Even though the Defendant's military record shows his having

obtained his G.E.D., earned the rank of E-5, and had been

honorly discharged, R. Vol. III, p. 732 (psychiatric evaluation)

the Court found it, on the vhole, not mitigating. R. Vol. III,

p. 687.

Similarly, Dr. Edgren's psychiatric evaluation suggests

Defendant had "significant emotional devrivation during his

early childhood". R. Vol. III, p. 733. Nevertheless, the

trial court found nothing mitigating in that report. R. Vol.

III, pp. 689-690.

It seems clear that the trial court determined the

existence of mitigating circumstances by first looking at a set

of factors grouped under a particular heading ("family

background" e.g.). If the bad outweighed the good within that

group, there was nothing mitigating.

~12-

against his negative background, thereby eliminating them

as mitigating circumstances.

The trial court found only one mitigating circumstance --

lack of any significant criminal record -- to balance against

the aggravating circumstances. But other mitigating circum-

stances clearly existed. Those too should have been balanced

against the aggravation before the trial court decided to

impose the death penalty.

(2)

The second fault with the trial court's sentencing findings

is its use of the Defendant's silence at his Washington trial.

The Defendant testified that, after his arrest in Idaho,

he talked to the Spokane police. He told the Spokane police

about the killing of Currie and Palmer. T. Vol. V, pp. 975-977.

The trial court apparently felt that odenetattie with the

police after the trial was not important.

There is no evidence that the defendant has

cooperated with the police. At the time

of the trial held in the State of Washington...

the defendant considered testifying for the

prosecution. Such testimony quite likely

would have changed the result of that trial;

the defendant elected not to testify.

R. Vol. III, p. 690 (emphasis added).

Cooperating with the Spokane police, the trial court implied,

would have meant testifying at trial. The Defendant, of course,

had a right not to testify.

The Defenda.::'s exercise of his constitutional right

ott

Using this method the trial court omitted Defendant's

supportive family, his military achievements during the

Vietnam war, and the psychiatric explanation of Defendant's

emotions from the balancing requirement of Code Section

19-2515(d).

Idaho court decisions dealing with mitigation in death

sentencing clearly indicate the trial court should have used

these omitted circumstances.

In State v. Osburn, 102 Idaho 405, 631 P.2d 187 (1981),

the Supreme Court quoted Black's Law Dictionary's definition

of mitigating circumstances as something not justifying the

crime but something

in fairness and mercy, may be considered

as extenuating or reducing the degree

of moral culpability.

Id. at 415, 631 P.2d at 197.

Much of what Dr. Edgren states in his report reduces

the "degree of culpability" of Defendant's act. Those

things should have been balanced against the aggravating

circumstances.

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

the Court implied a defendant's "background, his age, upbringing

and environment" should be used to determine the degree of

his culpability. Id. at 403, 253 P.2d at 207-208. The positive

background of the Defendant, his supportive family, and his achieve-

ments in the Marine Corps -- these should not have been offset

to remain silent was used against him. His election not

to testify offset his post-trial cooperation with the police.

It is clear that the Fifth Amendment of the United States

Constitution applies to criminal sentencing proceedings.

Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L,Ed.2d

359 (1981). Use of the Defendant's silence at his Washington

trial to offset a mitigating circumstance was wrong.

The Defendant's post-trial cooperation with the Spokane

police, however insignificant “he trial court felt it was,

should have been a mitigating circumstance balanced against

the aggravation.

(3)

The third fault in the trial court's sentencing findings

is its conclusion that the Defendant "aided and abetted in

the kiling of Kimberly Ann Palmer in a very direct manner”.

R, Vol. III, p. 701 (emphasis added).

The court conceded it could not f*~* Seyond a reasonable

doubt, that the Defendant directly committed the murder. R. Vol.

III, p. 699. And although it stated the law to be that an aider

and abetter is as guilty as the one who directly commits

the offense, R. Vol. III, p. 699, the court felt compelled

to find the degree of Defendant's aiding and abetting. It felt

this way because

not every case involving a person convicted

of the crime,..for aiding and abetting...

would involve circumstances which would

justify the finding of an aggravating

circumstance pursuant to Idaho Code

Section 19-2515(f).

R. Vol. III, p. 699.

In determining the degree of the Defendant's aiding and

abetting, the court analyzed the Defendant's testimony.

R. Vol. III, pp. 700-701. From this analysis the court

concluded that the Defendant's aiding and abetting was

"very direct".

But the analysis of the Defendant's testimony does not

support the conclusion. It begins at the bottom of page 700

of the clerk's record and covers most of page 701. It recounts

each step of Defendant's ections, asking rhetorical questions

but not answering them. At the end of the analysis the

court wonders ''what the Defendant would have done had

Evans [a co-defendant] not delivered the coup de grace [by

strangling the victim]."" R. Vol. III, p. 701.

Using this analysis of the Defendant's testimony -- that

he, upon finding that his companions had killed Currie,

impulsively struck the victim as she tried to flee and

dragged her into the kitchen; that he determined she was

alive; that immediately another man jumped on top of the

victim and strangled her -- the court found the Defendant

very directly involve

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.