# Petition — GIBSON v. IDAHO (No. 83-6611) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1805%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text IN THE ‘ SUPREME COURT OF THE UNITED STATE 1PH 931 Pi 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. 12 15 24 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) 2 ri Ye . *. e oO Ww 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) ii Page 16 15 16 15 16 23 19, 23 18 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. (c) In all cases in which 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. (c) With regard to the sentence 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. 6. (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. (c) Any murder committed by a person 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 aD ane COURT DEATH PENALTY 19-2515 APPENDIX "A'-2 iN 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 f. 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 co 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 A 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), be FINDINGS OF THE COURT IN CONSIDERING DEATH PENALTY UNDER SECTION 19-2515, IDAHO CODE/ 1) APPENDIX "A‘“-11 q 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- me 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- al ' ‘ 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 1 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, te 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 te 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. t 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. w 2 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 3 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 4 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 5 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 6 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 7 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 8 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 9 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 10 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: ll 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 12 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 13 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 14 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. 15 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. I. 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 II5 and LePage.© The Court did not do so. Instead, the Creech 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). © 19 « 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 case [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1805%3A1. Public record. Not legal advice.