Petition — PARADIS v. IDAHO (No. 83-6653)

Supreme Court brief1983

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IN THE SUPREME CO ar yee

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ORGINAL

DONALD M. PARADIS, Petitioner,

Vv.

STATE OF IDAHO, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF

THE STATE OF IDAHO

WILLIAM V. BROWN

P. O. Box 687

Coeur d'Alene, Idaho 83814

Counsel for Petitioner

—

INDEX

Page

eg | ee ee ee ee ee ii

ae ae ar es ee ee 1

Jurisdiction 2

Questions Presented 2

Statutory Provisions Involved 2

Statement of the Case .......... 7

Reasons for Granting the Writ:

1. The decision below conflicts with

the decisions of the other state

and federal courts as to the pro-

per interpretation of the fifth

amendment double jeopardy clause

and this Court's decision in Ashe

v. Swenson, 397 U.S. 436 (1970) . 12

2. The decision below demonstrates

the conflict between two or more

states concerning the application

of the sixth amendment right of

trial by jury to the capital sen-

COUGENE MEOCNNe 1. ks th tt 18

RE. nl 6 6 6 ON 6 we ee oe ce 24

Appendix A:

Opinion of the Idaho Supreme Court A-1

Order denying Petition for Re-

Es a Me eee eee A-37

DOU. « 5 6 ee ee ee ee A-38

Appendix B:

Findings of the Court in Consider-

ing Death Penalty under section

19-2515 Idaho Code ..... B-1

Report of the Sentencing Judge on

Imposition of Death Penalty

under section 19-2837 I.C... B-19

Judgment and Sentence ...... B-21

CITATIONS

Cases: Page

Adams v. Texas, 448 U.S. 38 (1980) ..... 23

Ashe v. Swenson, 397 U.S. 436 (1970) .... 12

Fitzpatrick v. State, __Mont. ,

E38 ae See SR eae ee ee 18

Furman v. Georgia, 408 U.S. 238 (1972) ... 20, 21

Gideon v. Wainwright, 372 U.S. 335 (1963). . 21

Gregg v. Georgia, 428 U.S. 153 (1976) ... 20, 21

Jenkins v. State, 147 Ga.App. 21, 248

5.8. 20 Se Ce eee es es ee ke 16

Ladd v. State, 568 P.2d 960 (Alaska, 1977) . 16

Lockett v. Ohio, 438 U.S. 586 (1978) ... . 19, 20

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

W208 OF Cee Se So) yaaa 16

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

a es) ir eee ee 16

People v. King, 276 I1l. 138, 114 N.E. 601

CLOTS) eS EB ee ee ee 17

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

2 ye. eg er 2 16

Proffitt v. Florida, 428 U.S. 242 (1976). . 20

State v. Gretzler, 135 Ariz. 42, 659 P..- .

(1983) cert. denied a F , 103

S.C. 2008 Qaeeeeel eee eee 6 6 we 6 ll 18

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

730 CSS oe ae eae ee ee lk le 16

State v. Moore, 219 Neb. 457, 316 N.W.2d

33 (1982) cert. denied 456 U.S. 984 (1982) 18

State v. Perkins, 349 So.2d 161 (Fla., 1977) 16

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

(I908) 6 & «eee ee ae ee os 18

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

Sen (SSFee va ee eee eas ew ee 18

ii.

CITATIONS (Cont'd. )

Cases:

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

App., 1978) Se ae ae ee ee

United States v. Castro-Castro, 464 F.2d

336 (9th Cir. 1972) ae a

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

(3d Cir. 1980). oe eg ee

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

(2d Cir. 1979). ; a er ee Ge ee ee

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

Cir. 1972) pe eee Ke we ee ee

Witherspoon v. North Carolina, 391 U.S.

510 (1968) Wie en a er ee

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

(1976) SPT ee ee ee ee ae ee

Other Authorities:

Annot., Admissibility of evidence as to

other offense as aftected by

defendant's acquittal of other

offense, 56 ALE 1132 (1962,

) ie, ) ee

S. Kanter, Brief Against Death: More on

the Constitutionality of Capital

Punishment in wregon, | By Webbe ec

Rev. 629 (1981) ;

Note, Expanding Double Jeopardy: Collat-

eral Estoppel and the Evidentiary

Use of Prior Crimes of Which the

Defendant has been Acquitted, 2

Fla. St. U. L. Rev. str (1974).

iii.

Page

ka,

Eee

ry #

20,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

NO.

DONALD M. PARADIS, Petitioner,

Vv.

STATE OF IDAHO, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF

THE STATE OF IDAHO

The petitioner Donald M. Paradis 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 19,

1983, for which rehearing was denied on February 14,

1984.

OPINION BELOW

The opinion of the Idaho Supreme Court, not

yet reported, appears in the Appendix hereto.

JURISDICTION

The judgment of the Supreme Court of the

State of Idaho was entered on December 19, 1983. A

timely petition for rehearing was denied on February 14,

1984, and this petition for certiorari was filed

within 90 days of that date. This Court's jurisdic-

tion is invoked under 28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. Whether acquittal of a murder charge

bars admission of evidence concerning that murder in

the trial of the same defendant for the subsequent

murder of the first victim's companion.

2. Whether the death penalty violates the

sixth amendment and fourteenth amendment to the Consti-

tution of the United States where the jury did not

participate in the capital sentencing process.

STATUTORY PROVISIONS INVOLVED

Fifth amendment, United States Constitution:

No person shall be held to ‘

answer for a capital, or otherwise

infamous crime, unless on a pre-

sentment or indictment of a Grand

Jury, except in cases arising in

the land or naval forces, or in the

Militia, when in actual service in

time of War or public danger; nor

shall any person be subject for the

same offence to be twice put in

jeopardy of life or limb; nor shall

be compelled in any criminal case

to be a witness against himself,

nor be deprived of life, liberty,

or property, without due process of

law; nor shall private property be

taken for public use, without just

compensation.

Sixth amendment, United States Constitution:

In all criminal prosecutions,

the accused shall enjoy the right

to a speedy and public trial, by

an impartial jury of the State and

district wherein the crime shall

have been committed, which district

shall have been previously ascer-

tained by law, and to be informeé

of the nature and cause of the

accusation; to be confronted with

the witnesses against him; to have

compulsory process for obtaining

witnesses in his favor, and to have

the Assistance of Counsel for his

defence.

Fourteenth amendment, section one, United

States Constitution:

All persons born or naturalized

in the United States, and subject to

the jurisdiction thereof, are citi-

zens of the United States and of the

State wherein they reside. No State

shall make or enforce any law which

shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive

any person of life, liberty, or

property, without due process of law;

nor deny to any person within its

jurisdiction the equal protection of

the laws.

I.C. § 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 convicted

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 circun-

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 :nake imposition of

death unjust.

the death penalty may be imposed,

the court shall, after conviction,

order a presentence investigation

to be conducted according to such

procedures as are prescribed by

law and shall thereafter convene

a sentencing hearing for the pur-

pose of hearing all relevant evi-

dence and arguments of counsel in

aggravation and mitigation of the

offence. 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 forth in writing any miti-

gating factors considered and, if the

court finds that mitigating circum-

stances outweigh the gravity of any

aggravating circumstance 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 sentence 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 remumera-

tion.

(5) The murder was especially

heinous, atrocious or cruel, mainifest-

ing exceptional depravity.

(6) By the murder, or circum-

stances surrounding its commission,

the defendant exhibited ut er 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 accon-

panied with the specific intent to

cause the death of a human being.

(8) The 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.

I.C.

(9) The murder was committed

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.

§ 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 Court of

Idaho. The clerk of the trial court,

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

setting 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 questionnaire prepared and

7 lied by the Supreme Court of

Idaho.

(b) The Supreme Court of Idaho

shall consider the punishment as well

as any errors enumerated by way of

appeal.

the court shall determine:

(1) Whether the sentence of

death was imposed under the influence

of passion, prejudice, or any other

arbitrary 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

authoritys regarding correction of

errors, th@ court, with regard to re-

view of death sentences, shall be

authorized to:

(1) Affirm che sentence of

death; or

(2) Set the sentence aside and

remand the case for resentencing by

the trial judge based on the record

and argument of counsel.

(f) The sentence review shall

be in addition to direct appeal, if

taken, and the review and appeal shall

be consolidated for consideration.

(g) The Supreme Court shall

collect and preserve the records of

all cases in which the penalty of

death was imposed from and including

the year 1975.

STATEMENT OF THE CASE

This is a criminal case in which petitioner,

Donald M. Paradis, seeks reversal of his conviction of

murder in the first degree. Petitioner further questions

the imposition of a capital sentence.

Petitioner was charged with murder in the

first degree by information on December 30, 1980.

R. Vol. I, pp. 137-138. At the start of his trial,

petitioner moved to exclude evidence concerning the

murder of Scott Currier, for which he had been acquitted.

Tr. Vol. 1, p. 2, L. 10-12. The court denied the motion.

R. Vol. I, pp. 129-134; Tr. Vol. 1, p. 2, L. 12-17.

The basis of petitioner's motion in limine

was the fifth amendment to the United States Constitution

and its double jeopardy clause with its attendant collat-

eval estoppel rule. R. Vol. I, pp. 129-134; Appendix.

The trial court ruled that evidence concerning Scott

Currier's death was admissible to portray a "rational

and cohesive scenario” of the circumstances of the

charged murder. Tr. Vol. I, p. 2, L. 10-17; Appendix.

The Idaho Supreme Court affirmed the trial court's con-

clusion. State v. Paradis, 1983 Op. No. 190, slip op.

at 7-11 (Idaho, Dec. 19, 1983).

The basic facts of the instant case were ade-

quately expressed by the Idaho Supreme Court, as follows:

In June of 1980, Scott Currier

arrived in Spokane, Washington, with

his fiancee. Sometime during that

month they became acquainted with

members of a Spokane motorcycle gang,

including appellant, through a chance

meeting in a Spokane park. Currier

and the deceased, Kimberly Palmer, had

known each other for five years and

previously dated. On June 19, 1980,

Palmer and Currier left Palmer's

Spokane residence to go to Idaho on a

camping trip, driving a blue and white

van owned by Currier's fiancee.

The next evening, Friday, June

20, Currier and Palmer checked into

a motel located around the corner

from appellant's Spokane residence.

After checking in, they were observed

looking for something in the rear of

the van. Currier then went back to

the motel clerk and asked for a return

of his money, indicating several guns

had been stolen, he knew who did it,

and he was going to retrieve them.

Currier and Palmer then left the motel.

On Saturday morning, June 21, at

approximately 6:30 a.m., a blue and \

white van was observed driving up a \

steep, sparsely populated mountain \

road south of Post Falls, Idaho. In

the van were two or three men, one

wearing a gray cap. Thirty minutes

later, three men were observed on foot,

coming down the same steep mountain

road. Witnesses later identified

these three men as Donald Paradis,

appellant here, Thomas Gibson and

Larry Evans. Within the next thirty

minutes, these same three men were

seen at various locations in Post

Falls. One was carrying what some

observers believed to be a rifle roll-

ed up in a blanket. Post Falls police

received a report of a man with a gun,

and upon investigation made contact

with the three men outside a drive-in

restaurant. From identification cards

shown to police, the three were posi-

tively identified as appellant, Gib-

son and Evans.

On Sunday morning, June 22, Post

Falls police received a report of a

one-car rollover on the aforement4oned

mountain road. Upon investigation,

they discovered the van, overturned,

with various items scattered around it.

Upon closer inspection an officer dis-

covered Kimberly Palmer's body lying

face down in a creek 70 to 80 feet

away from the van. Later, Scott Currier's

body was found near the van stuffed into

a sleeping bag tied with a small piece of

terry cloth. Currier's belt was also in

the bag, with a distinctive brass buckle

missing, apparently cut off the belt.

Lying under Palmer was a distinc-

tive light blue Levi cap, identified

as belonging to Larry Evans. Currier

had been beaten severely around the

head. Palmer had been manually

strangled. There was evidence at the

trial suggesting that Palmer was still

alive when she sas placed in the stream

bed.

Early Sunday morning, June 22, be-

tween 4:30 and 5:00 a.m., appellant's

residence in Spokane, Washington, was

severely damaged by an arson fire. An

investigator, who was on the scene to

determine the cause of the fire, ob-

served a rolled-up rug, in the basement

of the house, surrounded by a reddish

fluid. In the rug were Currier's miss-

ing brass belt buckle, a blue colored

lawn dart with traces of blood on the

end, and a piece of blue terry cloth.

The lawn dart closely matched puncture

wounds in Currier's back. The piece of

blue terry cloth matched the piece of

terry cloth used to tie up the sleeping

bag where Currier's body was found.

Testimony placed appellant at the resi-

dence in the early morning hours before

the fire began.

Appellant was arrested on Monday,

June 23, at an abandoned gas station

where he had been staying since the

fire. Recovered from appellant's

vehicle was a blue blanket previously

left in the van by Currier's fiancee.

An autopsy was performed upon both

victims. A major issue at trial con-

cerned jurisdiction over the crime be-

cause, although strong physical evidence

indicated that Currier wes battered and

probably killed at appellant's house in

Washington, other evidence indicated

that Palmer was most likely killed in

Idaho. A major part of the autopsy

dealt with the differences that existed

between the two bodies. Currier's body

had decomposed significantly by the time

of the autopsy. Palmer's body had not

decomposed. This indicated to the medi-

cal examiner that Currier had been killed

some hours before Palmer. Another differ-

ence between the two bodies was that

Palmer's lungs were half filled with water.

10.

The medical examiner hypothesized

that this was because Palmer lay

face down in the creek while still

gasping for breath. Based on this

evidence, the prosecution theorized

that Palmer, a witness to Currier's

murder, was still alive when the

van was driven to Idaho and was

killed to prevent her from identify-

ing the persons who killed Currier.

Appellant was charged in Wash-

ington with the murder of Scott

Currier. After a trial, he was

acquitted. He was then extradited

to Idaho for trial in the murder of

Kimberly Palmer.

Initially, appellant filed a

motion in limine to exclude evidence

concerning he death of Scott Currier.

The trial court denied the motion,

ruling that the evidence was admiss-

ible to portray a "rational and co-

hesive scenario." Evidence of

Currier's death was introduced in

the Idaho trial over the continuing

objection of appellant.

In his brief to the Idaho Supreme Court,

petitioner asserted that a defendant is entitled to

jury participation in the capital sentencing process.

Brief of Appellant, pp. 34-41; Appendix. The Idaho

Supreme Court rejected the analysis, concluding "that

there is no federal constitutional requirement of jury

participation in the sentencing process and that the

decision to have jury participation in the sentencing

process as contrasted with judicial discretion sentencing,

is within the policy determination of the individual

states."' State v. Paradis, 1983 Op. No. 190, slip op.

at 11-12 (Idaho, Dec. 19, 1983).

il.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH

THE DECISIONS OF OTHER STATE AND FEDERAL

COURTS AS TO THE PROPER INTERPRETATION

OF THE FIFTH AMENDMENT DOUBLE JEOPARDY

CLAUSE AND THIS COURT'S DECISION IN

ASHE V. SWENSON, 397 U.S. 436 (1970).

The tssue presented herein is one of constitu-

tional significance which requires this Court's resolution.

The basic question is whether evidence of an acquitted

offense may be used against a defendant in a subsequent

prosecution. In the instarmct case, the issue reaches

constitutional dimension since the prosecution's introduc-

tion of substantial evidence of the Scott Currier murder

placed the petitioner in the position of having to run

the gauntlet for the Currier murder a second time.

As this Court noted, when it applied the

doctrine of collateral estoppel to criminal proceedings

as part of the fifth amendment guarantee against double

jeopardy:

For whatever else that constitutional

guarantee may embrace, North Carolina

v. Pearce, 395 U.S. 711, /1/7, it sure-

Ty protects a man who has been acquitted

from having to “run the gantlet" 4

second time. Green v. United States,

355 U.S. 184, 190.

Ashe v. Swenson, 397 U.S. 436, 446 (1970).

Two conflicting points of view have developed

under Ashe. See generally, Annot., Admissibility of

evidence as to other offense as affected by defendant's

acquittal of that offense, 86 ALR2d 1132 (1962, Supp.

1983). The better view was best expressed by the Fifth

Circuit Court of Appeals in Wingate v. Wainwright,

12.

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 a

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 Estoppel

and the Evidentiary Use of Prior “rimes of Which the

Defendant has been Acquitted, 2 Fla. s+ J. 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 (2d Cir. 1979). ‘in Keller, a defendant

charged with conspiracy to distribute PCP had been

acquitted of participating in other drug transactions

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 undisputed." Government

Brief, page 11. 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.

13.

624 F.2d at 1160. In the case at bar, the State made

an argument quite similar to that presented in Keller.

As the Second Circuit Court of Appeals noted

with respect to Wingate v. Wainwright:

The court held that it was

irrelevant that the relitigated

issue was an "“evidentary" fact

rather than an "ultimate" fact

in the new trial. 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

permanent stigma would remain, a pall cast over his

reputation.” 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

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,

14.

thus fostering the policy which

favors the admission of evidence

while at the same time protect-

ing the defendant in instances

where the trial judge errs.

United States v. Castro-Castro, 464 F.2d 336, 337 (9th

Cir. 1972) citing Hernandez v. United States, 370 F.2d

171, 173-174 (9th Cir. 1966).

The conflict regarding the application of

collateral estoppel in instances where evidence of an

acquitted offense is presented in a subsequent prosecu-

tion would be sufficient to warrant this Court's attention.

In this instance, however, prirciples beyond the double

jeopardy clause require resolution by this Court.

In light of the general rule proscribing ad-

mission of evidence of other crimes, several jursidictions

have concluded that the fact of acquittal bars introduc-

tion of the crime previously charged. The Arizona Supreme

Court was among the first to reach this conclusion when

it concluded that the exclusion of a former offense for

which defendant was acquitted rests upon broader grounds

than res judicata or collateral estoppel:

We agree with the recognized excep-

tions to the general rule excluding

evidence of former offenses, because

that evidence is relevant, other

than as proof of the character of

the defendant, and because we be-

lieve that the need for and desirabil-

ity of such evidence outweigh any

prejudice to the defendant.

The fact of an acquittal, we

feel, when added to the tendency of

such evidence to prove the defendant's

bad character and criminal propensities,

15.

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 evidence.

See Jenkins v. State, 147 Ga.App. 21, 248 S.E.2d 33 (1978);

Ladd v. State, 568 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 value. 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).

Through the course of petitioner's trial for

Kimberly Palmer's murder, the prosecution presented evi-

dence of the Currier murder. Photographs of evidence,

seized from defendant's house relating to Currier's murder,

and of Currier's body were admitted«e Tr. Vol. 2, p. 154,

L. 8; Vol. 3, p. 346, L. 24; Vol. 3, p. 386, L. 20; Vol. 3,

p. 387, L. 53 Vol. 3, p. 389, L. 153 Vol. 3, p. 431, L. 22:3

Vol. 3, p. 482, L. 13. Investigating officers described

the evidence, concerning the Currier murder, which was

seized from defendant's home. Tr. Vol. l, p. 119, L. 3-16;

Vol. 2, p. 143, L. 13-16; Vol. 3, p. 367, L. 11; Vol. 3,

p. 369, L. 5-8. At one point, a witness referred to Scott

16.

Currier as “the victim.” Tr. Vol. 3, p. 397, L. 17-19.

As the photographs attached to the Idaho Supreme Court's

decision in this case show [State v. Paradis, 1983 Op. No.

190, slip. op. at 33-36 (Idaho, Dec. 19, 1983)], the

prejudice to petitioner is clear.

The case at bar presents this Court with the

opportunity to clarify the applicable principles--first,

whether acquittal by a court of competent jurisdiction

precludes presentation of the same evidence as presented

in the earlier tria] in a later hearing under the policy

of broad application of collateral estoppel and double

jeopardy principles; and second, whether acquittal im-

pacts the admissibility, rather than the weight, of other

crime evidence.

In light of the substantial conflict among the

various jurisdictions, it is of vital importance that

this Court resolve the question. Further, application of

either constitutional collateral estoppel or the balance

test of prejudice versus probative value reflects the

clear error of the Idaho Supreme Court's decision in

this instance.

Less presudicial means were available to the

prosecution to present its "rational and cohesive

scenario" of the charged offense. It could have shown

the fact of Currier's death and his relationship with

Kimberly Palmer but excluded the details of the event.

See People v. King, 276 I11. 138, 114 N.E. 601 (1916).

The conflicts described herein justify the

a7.

grant of certiorari to review the judgment below.

2. THE DECISION BELOW DEMONSTRATES

THE CONFLICT BETWEEN TWO OR MORE

STATES CONCERNING THE APPLICATION

OF THE SIXTH AMENDMENT RIGHT OF TRIAL

BY JURY TO THE CAPITAL SENTENCING

PROCESS.

The issue presented herein is of constitutional

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 concluded that judicial sen-

tencing 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. » 103 S.Ct. 2444 (1983)

while Mont. Code Ann. § 46-18-3011 was ruled constitutional

in Fitzpatrick v. State, Mont. , 638 P.2d 1002

(1981), after remand, Mont. » 671 P.2d 1 (1983).

Nebraska's judicial sentencing scheme has been ruled con-

stitutional 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 2 P.2d (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 sentencing

process, as contrasted with judicial discretion sentencing,

18.

is within the policy determination of the individual

states."' State v. Paradis, 1983 Op. No. 190, slip op. at

12 (Idaho, Dec. 19, 1983).

The conflict among the states which permit

judicial 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 several con-

victs awaiting administration of the death sentence in

the states of Idaho, Arizona, Montana, and Nebraska.

Further, the previous decisions 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 sen-

tencing, defendant asserts that his constitutional rights

were violaced when the trial judge determined sentence 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:

19.

[TJhis 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 this passage

from Proffitt is reduced since the Florida procedure con-

sidered in Proffitt did not completely exclude the jury

from the capital sentencing process. The jury was re-

sponsible for recommending either life imprisonment or

the death penalty, although its role was only advisory.

FSA § 921.141. As a result, the implication that no

constitutional provision mandates jury participation in

capital sentencing should be viewed 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 déath 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

sentencing is constitutionally required. Gregg v. Georgia,

20.

428 U.S. 153, 179-181 (1976); Gideon v. Wainwright, 372

U.S. 335, 345 (1963).

In 1972, this Court declared the Georgia and

Texas capital punishment statutes unconstitutional in

Furman v. Georgia, supra. The Court ruled that the proce-

dures by which the defendants were selected for the death

penalty were constitutionally inadequate because of the

jury's unfettered discretion to impose the death penalty.

Following Furman, more than two-thirds of the states re-

enacted some form of the death penalty. The Court's first

opportunity to review these new statutes came in 1976.

In Gregg v. Georgia, supra, this Court acknow-

ledged 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

to 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 com-

munity 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). The Court in Woodson described

ai.

three indicia of societal values with respect to sen-

tencing--history and traditional usage, legislative

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

important 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

fundament.? nature of the jury's involvement in capital

punishment sentencing schemes. At issue in Witherspoon

was whether a juror could be dismissed for cause after

indicating on voir dire that he might be hesitant to re-

turn a death verdict. Ruling that such a process deprived

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 conten-

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 -f society.

Witherspoon observed that less than half of the American

public believed in the death penalty. 391 U.S. at 520.

22.

As a result, a jury process which routinely 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

Witherspoon 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. 8 12.31(6) (Supp. 1980). As in

Witherspoon, the rationale for the decision was that the

lack of a representative cross-section of the community

resulting from such a procedure deprived the defendant of

his right to an impartial jury. As observed, 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 in a capi-

tal 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 defend-

ant lives or dies is made by one individual instead of

23.

twelve diverse personalities. The jury acts as "an

essential continuing barometer of scciety's willingness

to allow a death penalty statute to remain in effect."

S. Kauter, Brief Against Death: More on the Constitu-

tionality of Capital Punishment in Oregon, 17 Will. L.

Rev. 629, 658-659 (1981). All of these policy considera-

tions combine to create a strong argument under the sixth

and fourteenth amendments and the eighth and fourteenth

amendments that a defendant is entitled to jury partici-

pation in the capital sentencing process.

In light of the conflict among the states and

the absence of a direct ruling by this Court on the issue

of jury participation in capital sentencing, this Court

should grant certiorari to review the judgment below.

Further, the correctness of the decision below is open to

serious question.

CONCLUSION

For these reasons, a writ of certiorari should

issue to review the judgment and opinion of the Idaho

Supreme Court.

Respectfully submitted,

PW de N.C

WILLIAM V. BROWN

P. O. Box 687

Coeur d'Alene, Idaho 83814

Counsel for Petitioner

24.

mn APPENDIX "A'"'\

RECKiven 7

MAY 3- 1994

SUP OF IME Currx [1983 Opinion No, 190

AT, U.S,

IN THE SUPREME COURT OF THE STATE OF IDAHO

NO. 14565 |

STATE OF IDAHO, )

)

Plaintiff-respondent, ) Boise term, September

) 1983

)

v. )

) Filed: December 19, 1983

DONALD M. PARADIS, )

) Frederick C. Lyon, Clerk

Defendant-appellant. )

Appeal from the District Court of the First Judicial District of

the State of Idaho, Kootenai County, Hon. Gary M. Haman, District

Judge.

Appeal from conviction for first degree murder and the sentence

of death imposed upon that conviction. Affirmed.

William V. Brown, Coeur d'Alene, Idaho, for appellant.

Hon. Jim Jones, Attorney General; Lynn E. Thomas,

Solicitor General; Larry K. Harvey, Chief Deputy At-

torney General, Boise, Idaho, for respondent.

BAKES, J.

Appellant appeals his conviction for first degree murder and the

sentence of death imposed uron that conviction. Our review is in re-

sponse to his appeal, and, in addition, we review this case pursuant

to our duty to automatically review capital cases. I.C. § 19-2827.

In June of 1980, Scott Currier arrived in Spokane, Washington,

with his fiancee. Sometime during that month they became acquainted

with members of a Spokane motorcycle gang, including appellant,

through a chance meeting in a Spokane park. Currier and the deceased,

Kimberly Palmer, had known each other for five years and previously

dated. On June 19, 1980, Palmer and Currier left Palmer's Spokane

residence to go to Idaho on a camping trip, driving a blue and white

van owned by Currier's fiancee.

The next evening, Friday, June 20, Currier and Palmer checked

into a motel located around the corner from appellant's Spokane resi-

dence. After checking in, they were observed looking for something in

the reac of the van. Currier then went back to the motel clerk and

asked for a return of his money, indicating several guns had been

stolen, he knew who did it, and he was going to retrieve them. Cur-

rier and Palmer then left the motel. s

On Saturday morning, June 21, at approximately 6:30 a.m., a blue

and white van was observed driving up a steep, sparsely populated

mountain road south of Post Falls, Idaho. In the van were two or

three men, one wearing a gray cap. Thirty minutes later, three men

were obsecved on foot, coming down: the same steep mountain road.

Witnesses later identified these three men as Donald Paradis, appel-

lant here, Thomas Gibson and Larry Evans. Within the next thirty

minutes, these same three men were seen at various locations in Post

Falls. One was carrying what some observers believed to be a rifle

colled up in a blanket. Post Falls police received a report of a man

with a gun, and upon investigation made contact with the three men

outside a drive-in restaurant. From identification cards shown to

police, the three were positively identified as appellant, Gibson and

Evans.

On Sunday morning, June 22, Post Falls police received a report

of a one-car rollover on the ‘aforementioned mountain road. Upon

investigation, they discovered the van, overturned, with various

items scattered around it. Upon closer inspection an officer discov-

eced Kimberly Palmer's body lying face down in a creek 70 to 80 feet

away from the van. Later, Scott Currier's body was found near the van

stuffed into a sleeping bag tied with a-small piece of terry cloth.

Curcier's belt was also in the bag, with a distinctive brass buckle

missing, apparently cut off the belt. Lying under Palmer was a dis-

tinctive light blue Levi cap, identified as belonging to Larry Evans.

Curctier had been beaten severely around the head. Palmer had been

manually strangled. There was evidence at trial suggesting that Pal-

ner was still alive when she was placed in the stream bed,

irly Sunday morning, June 22, between 4:30 and 5:00 a.m., appel-

lant's residence in Spokane, Washington, was severely damaged by an

arson fire. An investigator, who was on the scene to determine the

cause of the fire, observed a rolled-up rug, in the basement of the

ise, surrounded by a reddish fluid. In the rug were Currier's

nissing brass belt buckle, a blue colored lawn dart with traces of

lood on the end, and a piece of blue terry cloth. The lawn dart

closely matched puncture wounds in Curfier's back. The piece of blue

terry clot natched the piece of terry cloth used to tie up the

sleeping, bag where Currier's body was found. Testimony placed appel-

lant at the residence in the early morning hours before he fire

began.

Appellant was arrested on Monday, June 23, at an abandoned gas

station where he had-been staying since the fire. Recovered from ap-~

! . . .

pellant’s vehicle was a blue blanket previously left in the van by

5 . t .

irrier s fiancee.

An autopsy was performed upon both victims. A major issue at

trial concerned jurisdiction over the crime because, although strong

hysical evidence indicated that Currier was battered and probably

killed at appellant's house in Washington, other evidence indicated

that Palmer was most likely killed in Idaho. A major part of the

utopsy dealt with the differences that existed between the two bod-

ies. Currier's body had decomposed significantly by the time of the

utopsy. Palmer's body had not decomposed. This indicated to the

edical examiner that Currier had been killed some hours before Pal-

Pes Another difference between the two bodies was that Palmer's

lungs were half filled with water. The medical examiner hypothesized

that this was because Palmer lay face down in the creek while still

,asping for breath. Based on this evidence, the prosecution theorized

that Palmer, a witness to Currier's murder, was still alive when the

jan was driven to Idaho and was killed to prevent her from identify-

)

ct?

persons who killed Currier.

a ® |

Appellant was charged in Washington with the murder of Scott

Currier. After a trial, he was acquitted. He was then extradited to

Idaho for trial in the murder of Kimberly Palmer.

Initially, appellant filed a motion in limine to exclude evidence

concerning the death of Scott Currier. The trial court denied the

notion, ruling that the evidence was admissible to portray a "ra-

tional and cohesive scenario." Evidence of Currier's death was intro-

duced in the Idaho trial over the continuing objection of appellant.

Ks ‘

First, appellant alleges that the trial court erred in not giving

a certain instruction to the jury. Appellant alleges chat under

Idaho law, where a criminal case rests entirely upon circumstantial

evidence, the jury must be instructed to find the defendant guilty

only if the facts are entirely consistent with his guilt. See State

v. Davis, 69 Idaho 270, 206 P.2d 271 (1949); State v. McLennan, 40

Idaho 286, 231 P. 718 (1925); State v. Marcoe, 33 Idaho 284, 193 P.

80 (1920).

In State v. Holder, 100 Idaho 129, 594 P.2d 639 (1979), we re-

versed a defendant's conviction for failure to give the following

requested instruction:

"You are not rccmitted to find the defendant guilty of

the crime charged against him based on circumstantial

evidence unless the proved circumstances are not only

consistent with the theory that the defendant is

guilty of the crime, but cannot be reconciled with any

other rational conclusion and each fact which is es-

sential to compiete a set of circumstances necessary

to establish the defendant's guilt has been proved

beyond a reasonable doubt.

"Also, if the evidence is susceptible of two reason-

able interpretations, one of which points to the

defendant's guilt and the other to his innocence, it

is your duty to adopt that interpretation which points

to the defendant's innocence, and reject the other

which points to his guilt." 100 Idaho at 132.

he trial idge ji Holder had iven an instruction which merely

listinguished between circumstantial and direct evidence and did not

lain the effect 1f a circumstantial case. Appellant here contends

that the trial court erred in the same manner, in that he gave insuf-

ions on the effect of a circumstantial case. However,

unlike in Holder, the trial judge here gave the following instruction

+ . . ' .

at the beginning of appellant's trial:

convict the defendant, the evidence must, to your

ninds, exclude every reasonable hypothesis other than

the guilt of the defendant. If after consideration of

1 the evidence in the case, you may reasonably ex-

ain the facts wvsiven in evidence on any reasonable

ground other than the guilt of the defendant, you must

acqgul -

‘his instruction, which was not objected to, sufficiently informed

)

the jury that it could not convict the appellant nless all the facts

were consistent with suilt and excluded any veasonable hypothesis

tther than guilt. This is in effect the same type of instruction we

}

indicated should have been given in State v. Holder, supra. It in-

forms the jury of its duty in a ease involving only circumstantial

evidence. Accordingly, there was no error in failing to give any

further instructions on that issue.!

Appellant also contends thai insufficient evidence was presented

at trial to convict him of the crime charged. He argues that only

circumstantial evidence connects him to the ,scene, and that to be

convicted of the principal offense it must be shown that an aider and

vettor possessed the same intent as the principal. Appellant ar-

rues that the proof at trial failed in this respect, and that on the

evidence presented no reasonable jury could have convicted appellant.

_ 2A Pl , : P Peter 1 . : :

*Nor did the trial court err in giving this instruction at the begin-

ning of the trial rather than at the end. The court reminded the

jury at the beginning and end of trial that the instructions were to

be considered as a whole, both those given at the beginning and those

given at the end. He also indicated that all of the instructions

were to be taken into the jury room ti written form and considered

] . oe

there as a whole.

He also argues that the prosecution did not sufficiently prove beyond

a reasonable doubt that the murder was committed in Kootenai County.

Appellant's reliance upon these arguments is misplaced since a defen-

dant can be convicced solely on circumstantial evidence. State v.

Chapple, 98 Idaho 475, 567 P.2d 20 (1977); State v. Ponthier, 92

Idaho 704, 449 P.2d 364 (1969). The state presented a strong circum-

stantial case against appellant. He was placed at or near the scene

where the victim's body was found, in the company of a person, Larry

Evans, who was almost certainly in or around the scene at the time of

the murder (as indicated by the presence of his hat under Palmer's

body). The area was sparsely populated, and very few people used the

road where the van was found; thus, the presence of strangers in the

area was conspicuous. Witnesses observed a van Palmer and Currier

had been driving on that road shortly before three men, whose :iden-

tities were established, including appellant, were observed leaving

the area on foot. The presence of these men on foot left little

doubt that they had reached the area in the van. In addition, strong

evidence of motive was presented in that appellant was. strongly

linked, by evidence discovered in his house, to the death of Scott

Currier. Currier's distinctive brass belt buckle, cut off his belt,

was found at appellant's house. The belt was found on Currier's

body. A lawn dart which was used to stab Currier in the back was

found in appellant's house. Pieces of terry cloth identical to those

used to tie Currier into the sleeping bag were found in appellant's

house. There was evidence that an attempt was made to clean the house

after Currier's death, as evidenced by the bloody rug hidden in the

basement, with rags having been washed in a washing machine. An arson

caused fire had been set in appellant's house in an apparent attempt

to destroy all of this evidence. There was a strong inference that

appellant attempted to leave the area after the killings. Also, a

blue blanket that had been in Currier's fiancee's van was found in

appellant's car when he was arrested. The circumstantial evidence

presented in this case was more than sufficient to support the con-

‘

viction of appellant for aiding and ibetting the murder of Kimberly

Palmer.

As prev iously, noted, appellant was ¢t ried in Washington for the

murder of Scott Currier, and acquitted. Evidence connecting appellant

to Currier's death was introduced in the Palmer trial over appel-

bad

lant's objections. Appellant contends that the admission of this

evidence was error; thus, his conviction is tainted and‘ must be re-

versed.

Fvidence connecting appellant to the death of Scott Currier con-

stitutes evidence of another crime for which appellant was not on

trial in the present case. Generally, evidence of other crimes of a

defendant is not admissible at trial to show the defendant's criminal

propensity. State v. Needs, 99 Idaho 5535 591 P.2d 130 (1979); State

v. Wrenn, 99 Tdaho 506, 584 P.2d 1231 (1978). Such evidence may be

introduced, however, if the evidence falls within one of the gener-

ally recognized exceptions to the reneral rule.

"However, this jurisdiction will admit evidence of de-

fendant'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

commission of two or more crimes so related to each

other that proof of one tends to establish the other,

(5) the identity of the person charged with the com-

mission. of the crime on trial, and (6) other similar

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

139-40.

The evidence of the Currier death was presented not for the purpose

of showing appellant's criminal propensity, but for the purpose of

showing motive and a common scheme and especially to indicate to the

jury the entire factual situation presented in this case, as stated

by the trial judge, a "rational and cohesive scenario,'' also a use

which is 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, 91 S.Ct. 947.

However, the situation in this case is slightly different from

previous Idaho cases in that the “other crime" of which evidence is

being introduced was a crime for which the appellant has been acquit-

ted. Nevertheless, evidence of a prior acquitted crime is generally

allowed if it falls within one of the recognized exceptions already

noted. See, e.g., Hernandez v. United States, 3/0 F.2d 171 (9th Cir.

1966); Buatte v. United States, 350 F.2d 389 (9th Cir. 1965), cert.

den. 382 U.S. 984; Ladd v. State, 568 P.2d 960 (Alaska 1977); People

v. Vaughn, 455 P.2d 12? (Cal. 1969); People v. Douglas, 54 Cal.Rptr.

777 (1966); Davis v. State, 277 So.2d 311 (Fla.App. 1973); Jenkins v.

State, 248 S.E.2d 33 (Ga.App. 1978); State v. Darling, 419 P.2d 836

(Kans. 1966); People v. Bolden, 296 N.W.2d 613 (Mich. App. 1980);

State v. Schlue, 323 A.2d 549 (N.J.App. 1974}; State v. Yormark, 284

A.2d 549 (N.J.App. 1971); State v. Smith, 532 P.2d 9 (Ore. 1975);

State v. Tarman, 621 P.2d 737 (Wash. App. 1980). See also Annot.,

Admissibility of evidence as to other offense as affected by defen-

dant's acquittal of that offegse, 86 A.L.R.2d 1132 (1962).

However, appellant raises another objection to admissibility. He

contends that allowing admission of this "other crimes'' evidence,

where he has been acquitted, would violate his rights under the fifth

amendment to the United States Constitution, specifically the double

jeopardy clause with its attendant collateral estoppel rule. Ashe

v. Swenson, 397 U.S. 436, 90 S.Ct. 1189 (1970).2 After a careful

examination of this argument, we conclude that, in the context of

this case, admission of this evidence did not violate appellant's

fifth amendment rights.

2There is a question whether collateral estoppel would even apply to a

situation where the defendant is being prosecuted by two separate

sovereigns. In the present case we are dealing with two separate

offenses, one committed against one sovereign state, and another in a

different sovereign state. Thus, collateral estoppel might not even

apply here because the "same parties" requirement of collateral es-

toppel has not been met. However, for purposes of this discussion,

we choose to show why, in the context of the facts presented here,

collateral estoppel would not prevent a retrial of the defendant even

if the same sovereign were prosecuting him.

The fifth amendment's double jeopardy guarantee applies tp

states through the fourteenth amendment. Benton v. Maryland,

S. 784, 89 S.Ct. 2056 (1969). In Ashe v. Swenson, supra, the

rith six counts f robbery, for robbing

the

395

de-

six

fendant was charge n i

sarticipants in a poker game. After acquittal on one count, he was

tried 3 nd count. The question before the court in Ashe was

whether there exist&S an element f collateral estoppe!t in the fifth

amendment guarantee against double jeopardy, as applicable to the

states, that would

the ultimate issue (in Ashe, identification of a perpetrator)

already been necessarily determined at a previ

nel in the fifth amendment which would prevent the second trial.

ld preclude a state from retrying a defendant where

had

us trial. The Supreme

ourt adopted the view that there is an element of collateral estop-

federal circuit has used the rationale in Ashe to forbid

evidence of »ther rimes where a defendant h

(evidence

of those robberies, not admissible in trial on third separate

bery). However, Ashe and Wingate are distinguishable frown

case, which

as been acquitted of

Wingate v. Wainwright, 464 F.2d 209 (Sth Cir. 1972)

that defendant robbed two establishments, where acquitted

rob-

this

can best be hown by comparing the facts of the present

case to the facts in King v. Brewer, 577 F.2d 435 (8th Cir. 1978),

habeas petitioner, had been convicted

the

in state court of the robbery of a particular store. This store had

been robbed at 7:00 p.m.; another store was robbed at 4:30 a.m.

following morning. Appellant was arrested and charged with

©o ret &

heoth

cobberies. He was tried for the morning robbery first and acquitted.

At the subsequent trial for the evening robbery, testimony of appel-

! . . , . rs

lant's involvement in the mocning robbery was presented. The King

court first ruled that Ashe was not applicable.

- t

"In the Ashe case the separate charges arose out of

the same transaction or ccurrence. The critical

issue in the Ashe case was whether Ashe was a partici-

pant, with others, in the robberv of the six players.

In acquitting Ashe in the first trial, the jury found

that Ashe was not a participant in the robbery of the

six players. In the second trial the jury found that

he was a participant in the robbery of the six play-

ers. In contrast, in this case appellant was charged

with committing two separate and distinct robberies of

two different stores, separated by distance, circum-

stances, and time of about nine and one-half hours.

These facts distinguish this case from the Ashe case."

577 F.2d at 440. ae

Similarly, the present case is distinguishable from Ashe. Appellant

here was charged with committing tw separate and distinct crimes,

the murders of two separate persons, separated by time, distance and

circumstances. ?

The appellant here seeks to foreclose from consideration any

alleged connection between himself and the death of Scott Currier.

However, here, as in the King case, the evidence of Currier's death

and its connection to appellant was not introduced for the primary

purpose of showing the guilt of appellant regarding the death of

Currier, but rather ts explain to the jury a possible motive the

appellant may have had to participate in the murder of Kimberly Pal-

mer and to connect him with that murder. The jury in the Washington

case could very well have believed that appellant had a connection

with Currier's death, but that the state did not prove beyond a rea-

sonable doubt that appellant was the actual murderer of Currier.

Additionally, the Washington jury might have had a reasonable doubt

on the issue of whether Currier was killed in Washington or in Idaho,

and thus acquitted because of that doubt. A verdict of acquittal in

Sjhe court in King also considered the effect of the Fifth Circuit

cases following Wingate. See Blackburn v. Cross, 510 F.2d 1014 (Sth

Cir. 1975), “xpanding Double Jeopardy: Collateral Estoppel and the

Evidentiary Use of Prior Crimes of Which the Defendant has been Ac-

quitted, 2 Fla.State Univ. L.Rev. 511 (1974). In Wingate and

Blackburn, the two principal cases in the Fifth Circuit, the evidence

of the prior crime was primarily being introduced to prove the iden-

tity of the accused as the perpetrator of the crimes, including those

crimes of which he was acquitted. Thus, the King court noted that

those cases were also factually distinguishable from their own case.

The evidence in King was being introduced not to show guilt of the

accused in the acquitted crime, but rather to impeach the defendant's

testimony of alibi. Its primary purpose was not to establish the

defendant's guilt in the orning cobb

the previous case does not preclude all possibility of knowledge on

the part of appellant of the circumstances of the death of Currier.

It was this evidence of knowledge on the part of the defendant that

the prosecution sought to use to indicate to the jury a possible

motive and implication in Palmer's death. The prosecution did not

seek to prove oné¢e again that appellant was involved in Currier's

death, but only sought to show that appellant had a motive to aid in

a cover-up of the Currier murder »&* helping to eliminate Kimberly

Palmer as a witness. Regardless of his guilt or innocence in Cur-

rier's death, the evidence of that death is still highly relevant in

showing a possible motive for appellant's involvement in Paimer's

murder. Because the verdict of acquittal did not necessarily pre-

clude or decide finally the questfon of appellant's knowledge of the

circumstances surrounding Currier's death or the tie-in between Cur-

rierc's death and Kimberly Palmer's death, the doctrine of collateral

estoppel did not preclude introduction of evidence of Currier's death

at the Palmer trial.

Il.

Appellant next challenges the validity of the death penalty im-

posed on his- conviction. He asserts that the penalty is

disproportionate and excessive in this case for the following rea-

sons: (1) there was a lack of jury participation in the capital

sentencing process, which participation is constitutionally required;

(2) one of the aggravating circumstances in Idaho's death penalty law

is unconstitutionally vayzue; (3) the death penalty cannot be imposed

upon a defendant who is found guilty only of aiaing and abetting in

the murder; (4) the cire:mstances in this case do not provide a suf-

ficient. foundation for imposition f the death penalty. We will

° 3 ' . °

consider appellant's assertions in the above orcer.

ellant's first assertion is that involvement of the jury in

the sentencing process in capital cases is constitutionally required.

This assertion is disposed ff by tw recent Cases in which we have

nsidered this exact question and rejected the argument. In State

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the aid of a limiting construction placed upon it, has been upheld as

constitutional. In State v. Osborn, supra, we concluded that the

phrase under consideration here "is meant to be reflective of acts or

circumstances surrounding the crime which exhibit the highe:t, the

utmost callous disreyard for human life <@, the cold-blooded

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pitiless slayec." Id. at 419. In State v. Creech, supra, we. once

again upheld the constitutfionality of this statutory aggravating

circumstance. In light of our decisions in these two cases. further

consideration of the identical argument presented here is not neces-

sary . +

Appellant argues that a death penalty cannot be imposed in this

}

case because he was merely an aider and abettor, and no proof was

presented that aprellant was the actual killer of Kim Palmer. Appel-

lant relies on the recent United States Supreme Court case of Enmund

v. Florida, ___—iU.S. , 102 §.Ct. 3368 (1982). In Enmund, the

court considered the question of whether a person convicted only of

felony murder can be sentenced to death. Enmund was the driver of the

getaway vehicle in a planned robbery during which the two principals

killed the victims. There was no showing that Enmund intended the

kiilings, only that he was a knowing participant in the robbery,

during which the victims were killed. The court resolved the ques-

tion in Enmund's favor.

"{I]t is for us ultimately to judge whether the Eighth

Amendment permits imposition cf the death penalty on

one such as Enmund who aids and abets a felony in the

course of which a murder is committed by others but

who does not himself kill, attempt to kill, or intend

that a killing take place or that lethal force will be

employed. We have concluded, along with most legisla-

tures and juries, that it does not.

+*Since we have decided that appellant's sentence was validly imposed

because the trial court found these circumstances to exist beyond a

reasonable doubt, and the circumstances withstand constitutional

scrutiny, it is unnecessary for us to consider the state's argument

that the sentence is also warranted under I.C. § 19-2515(£)(10), a

circumstance that the trial court found existed, but ruled legally

inapplicable to this case.

-l13-

Sao”

"... The question before us is not the disproportion-

ality 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 considera-

tion as a constitutional requirement in imposing the

death sentence.'" U.S. at ___, 102 S.Ct. at

, (emphasis in orfginal).

The court held that since Enmund's criminal culpability extended only

to the robbery, imposition of the death penalty for Enmund's own

culpability was excessive and disproportionate and thus a violation

of the eighth amendment.

Enmund does not require a reversal of the sentence imposed in

this case for several reasons. First, appellant was convicted of

murder, not felony murder. Felony murder is defined as:

"Any mucdec committed in the perpetration of, or at-

tempt to perpetrate, arson, rape, robbery, burglary,

kidnapping or mayhem is murder of the first degree.

EeGe 18-4903(d).

Under the felony murder rule, a defendant who participates in a rob-

bery can be held liable for the death of any person killed during the

commission of that robbery, regardless of the individual defendant's

intent that a death occur. Appellant was convicted of aiding and

abetting in the comnission of a murder, an offense which necessarily

involves an intent on the part of a defendant that a murder take

place. We have already ruled that the evidence was sufficient to

support a conviction on this charge. Although the United States Su-

preme Court ruled out imposition of the death penalty in a felony

murder case, they did so because the felony murder offense involved

in Enmund did not require, and the facts of the case itself did not

warrant, a finding that the defendant entertained an intent that the

victims of the robbery be killed. Such an intent to kill was required

sy che offense for which appellant was convicted.?

5In addition, note:

The trial judge instructed the jury that murder of the first

degree requires a clear, deliberate intent to kill on the part of the

defendant. He further instructed the jury that:

"You are instructed that all persons concerned in the

commission of a crime, whether it be felony or misde-

meanor, and whether they directly commit the act

* constituting the offense or aid and abet in its com-

mission, are principals in any crime so committed, and

as principals are guilty of any crime so committed.

"You are instructed that to aid and abet means to

knowingly assist, facilitate, promote, encourage,

counsel, solicit or invite the commission of a crime.

(Emphasis supplied.)

Thus, the jury would necessarily have to find that the defendant

intended that a life be taken before it could find him guilty of

first degree murder. This type of moral culpability is all that the

United States Supreme Court would require under Enmund. Because such

a mecal culpability necessarily exists in the present case, imposi-

tion of the death penalty is not disproportionate and unjust.

dD.

Appellant also argues that the circumstances in the present case

are not sufficient to support the imposition of the death penalty. In

"19-2515. Inquiry into mitigating or aggravating circumstances--

Sentence in capital cases--Statutory or aggravating circumstances--

Judicial findings.--...

"(f) The following are statutory aggravating circumstances, at least

one (1) of which must be found to exist beyond a reasonable doubt

betore a sentence of death can be imposed:

(7) The murder was one defined as murder of the first degree by sec-

tion 18-4003, Idaho Code, subsections (b), (c), (d), (e) or (£), and

it was accompanied with the specific intent to cause the death of a

human being. (Emphasis added.)

The felony murder rule is contained in 1.C. § 18-4003(d); thus, it is

included in the above agyravating circumstance.

«1S«=

making this argument’) appellant essentially reiterates some of the

earlier arszuments made, including that the death penalty is excessive

in cases based on aidiny, and abettiny,, and that the ecirecumstances did

not reflect "“tter disrevard for human life.” We find that this

argument, beiny, basically a reiteration of defendant's previous argu-

ments does not merit consideration.

lil.

Finally, we reach that point where we conduct our independent

review of this case under 1.C. § 19-2827. The purpose of our rceview

is to examine the 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 evidence supports the trial

court's findings of statutory aggravating circumstances; and that the

sentence of death is not excessive or disproportionate. 1.C. § 19-

2827.

In this case, all of the procedures mandated in potential death

penalty cases, such as appellant's attendance at the pronouncement of

sentence, written findings of the trial judge on aggravating and

mitigating circumstances, etc., were followed. The state gave appel-

lant notice that it intended to ask for the death penalty and gave

notice of its intent to rely on the aggravating circumstances in I.C.

§ 19-2515(£) (6), -(8), and -(10). Appellant was also allowed to sub-

mit a document, which was considered by the court, outlining what he

felt were the mitigating circumstances that should be considered. An

aggravacion/mitigation hearing was held, evidence taken, and argu-

ments heard. I1.C. § 19-2515(d). The trial court then issued written

findings indicating the mitigating factors considered and the aggra-

vating factors found beyond a reasonable doubt.

In our independent review, we note that the trial court consid-

ered testimony given by Thomas Gibson during his separate trial for

first degree murder of the same victim, Kimberly Palmer. This tes-

timony was sworn testimony given in open court, although not in the

trial of this particular cause. The trial court took judicial notice

of the testimony because of its ruling that appellant had "agreed to

t ! t |9%- y» lf We find n error the Eria ‘ iurt

ruli thi issue, considering the fact that the defendant did

request that the trial court take notice of thi testi ny i nitiga-

1 d

tion f sentence, and the fact that the testimony itself was piven

mce . } ir s rr) "Oy! room The ’ +m , , A 4a. < rh « l-

inder at in an open courtroom. the testimony, f Gioson, Chus va

idly taken into consideration, furthec sup): rted the notion that

imberly Palmer was killed to cover up the murder e Seontt Currier.

Gibson testified that he aided in the murder of Palmer by knocking

her to the ground at the Paradis house in an effort to prevent her

from leaving the house after Currier's murder, so that she could not

inform the authorities of what she had witnessed.

The court, in its findings, found no mitigating circumstances,

and it found one statutory aggravating circumstance beyond a reasona-

ble doubt, noting that "there is nothing which outweighs the gravity

of the aggravating, circumstance.’ This is not a case like State v.

Nsborn, supra, where the trial court failed to find any mitigating

circumstances, but at the same time failed to set forth those miti-

vating circumstances which it considered. In this case, the trial

court considered all of the possible mitigating circumstances urged

by appellant, and also considered the possibility of the existence of

six additional mitigating circumstances, but after consideration

decided tnat none of the factors either suggested by appellant or

considered by the court on its own constituted a mitigating circum-

stance. We find no error in the procedure followed by the trial court

in making its findings.

We are also required under I.C. § 19-2827 to conduct a review of

the sentence imposed, and the sentences imposed in similar cases, to

assure that the sentence in this case was not excessive or dispropor-

tionate. We recently conducted an extensive review of Idaho murder

cases and find that the sentence imposed in this case is not dispro-

portionece to the sentence imposed in those cases where the death

sentenze was available as a form of punishment. We have also com-

paced this 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 proportionate to the sentences imposed

in those cases. In fact, the crime committed in the present case is

the same type of crime as that committed in State v. Sivak, supra. In

Sivak, the trial court found that one of the reasons the victim was

killed was to prevent her from identifying the defendant as the per-

petrator of a robbery. In this case, the motive for the killing of

Kimberly Palmer was identified by the trial court as a preventative

measure, i.e., to prevent her from speaking to others about the cir-

cumstances surrounding the murder of Scott Currier. We find that the

penalty imposed in this case is both proportionate and just.

The judgment of conviction and sentence imposed are affirmed.

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

«id

BISTLINE, J., dissenting, in which Huntley, J., concurs.

The record before us is literally fraught with error at

every stage of the proceedings. However, in considering that

record, I focus on but two of the more prominent errors that

mandate reversal.

As the inajority notes, the appellant was tried in Washington

for the murder of Scott Currier prior to his Idaho trial for the

murder of Kimberly Palmer. Appellant was acquitted for Currier's

murder by a Washington jury. Yespite that acquittal, however,

and over appellant's timely objection, evidence connecting

appellant to Currier's death was introduced in the Palmer trial.

Appellant contends that the admission of this evidence was error.

I agree and would, on this basis, reverse.

The evidence submitted by the prosecution linking appellant

to the Currier murder was both extensive and highly prejudicial.

The proffered evidence included the following photographs of

Currier's body, both at the site at which it was discovered and

at the autopsy; photographs of evidence seized from appellant's

house relating to Currier's murder; descriptions by investigating

officers of both the murder and the evidence seized from appel-

lant's home; a thorough desc~-iption by the coroner of the autopsy

performed on Cicrier; and even reference by a Spokane County

identification officer to Currier as "the victim." All of this

in a trial for the murder of Kimberly Palmer!

However, in view of the United States Supreme Court case of

Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469

(1970), and its progeny, it is clear that the doctrine of

collateral estoppel bars the use of such evidence. Ashe applied

the collateral estoppel to criminal proceedings as part of the

Fifth Amendment guarantee against double jeopardy. As the

Supreme Court noted:

« 29 «

"For whatever else that constitutionai yuarantee

may embrace, North Carolina v. Pearce, 395 U.S.

711, 717, it surely protects a man who has been

acquitted from having to ‘run the gauntlet’ a

second time. Green v. United States, 355 U.S.

184, 190." Dipti at

397 U.S. at 446.

Following the Supreme Court's lead in Ashe, thé Fifth Circuit

Court of Appeals applied collateral estoppel to cases such as the

one before us where the state seeks to introduce evidence of

prior acquitted criminal charges as evidence in a subsequent

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

1972), the Fifth Circuit Court stated:

"Wwe do not perceive any meaningful difference in

the quality of 'jeopardy' to which a defendant is

again subjected when the state attempts to prove

his guilt by relitigating a settled fact issue

which depends upon whether the relitigated issue

is one of ‘ultimate’ fact or merely an ‘evidenti-

ary' fact in the second prosecution. In both

instances the state is attempting to prove the

defendant guilty of an offense other than the one

of which he was acquitted. In both instances the

relitigated proof is offered to prove some element

of the second offense. In both instances’ the

defendant is forced to defend again against

charges or factual allegations which he overcame

in the earlier trial. We are in agreement with

Judge Friendly's conclusion in United States v.

Kramer, 289 F.2d 909 (2d Cir. 1961).

"'The Government is free, within the limits

set by the Fifth Amendment, . . . to charge an

acquitted defendant with other crimes claimed

to arise from the same or related conduct; but

it may not prove the new charge by asserting

facts necessarily determined against it on the

first trial, mo matter how unreasonable the

Government may consider that determination to

be.

. . « The prosecution simply may not in the

course of any subsequent trial of the same parties

relitigate an issue which was determined as an

issue of ultimate fact in an earlier prosecution.

"| h6WWe hold that under Ashe where the

state in an otherwise proper prosecution seeks for

any purpose to relitigate an issue which was

determined in a prior prosecution of the same

parties, then the evidence offered for such a

relitigation must be excluded from trial and the

state must be precluded from asserting that the

issue should be determined in any way inconsistent

with the prior determination.

"Tt is fundamentally unfair and_ totally

incongruous with our basic concepts of justice to

permit the sovereign to offer proof chat a

defendant committed a specific crime which a jury

of that sovereign has concluded he did not commit.

Otherwise a person could ever remove himself from

the blight and suspicious aura which surround an

accusation that he is guilty of a specific

crime."

464 F.2d at 213-14.

See also Blackburn v. Cross, 510 F.2d 1014 (Sth Cir. 1975); State

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

1 Because the majority assumes for purposes of its argument

that it is in fact the same sovereign prosecuting in both cases,

I too proceed on that assumption. However, I note in passing

that the doctrine of dual sovereignty is inapplicable here and

would in no way interfere with the application of collateral

estoppel principles to the case at bar. As appellant correctly

stated in his brief to this Court:

‘The dual sovereignty rule is based upon the principle that

every citizen of the individual States or territories is

also a citizen of the United States and thus owes

‘allegience to two sovereigns, and may be liable to punish-

ment for an infraction of the laws of either.' Bartkus v.

Illinois, 359 U.S. 121, 31, 79 S.Ct. 676, 3 L.Ed.2d 684

(1959)."

Appellant's Reply Brief, p. 4.

The majority argues in response that the Washington jury

which acquitted the appellant of Currier's murder may have done

so on the basis of a reasonable doubt as to whether Currier was

killed in Washington or Idaho and thus acquitted because of that

doubt. Further, the jury "could very well have believed that

appellant had a connection with Currier's death, but that the

state did not prove beyond a reasonable doubt that appellant was

the actual murderer of Currier." And, finally, the majority says

that "a verdict of acquittal in the previous case does not

preclude all possibility of knowledge on the part of appellant of

the [relevant] circumstances."'2 Supra, at 10. I contend that we

< The Arizona Supreme Court was faced with a similar conten-

tion by the state in the case of State v. Little, 87 Ariz. 295,

350 P.2d 756 (1960). That case involved the admissibility of a

prior narcotics charge for which the defendant was acquitted in a

later narcotics prosecution on the rationale that these prior

sales evidenced a common scheme or plan which encompassed the

instant sale. The State argued that the verdict of acquittal

meant only that the State had then failed to prove beyond a

reasonable doubt all the elements of the prior offense and that,

accordingly, the verdict does not necessarily disprove the fact

of the prior sale, which is all that hte State sought to prove

for purposes of the later case. The Arizona Court responded as

follows:

"We do not agree, however, that the effect of the prior

acquittal should be determined by a strict application of

the rules of res judicata or collateral estoppel. Although

a verdict of acquittal may not necessarily mean that the

jury found that the prior sale did not in fact take place,

such a finding is a possible and indeed reasonable inference

to be drawn from the verdict. Further, the relevance of the

alleged prior sale as part of a plan or scheme may be

doubted in the absence of proof of criminality of that prior

sale. Thus, if the acquittal is based on an implied finding

that the product sold was not sufficiently proved to be a

marcotic or that defendant did not know that it was such,

the sale could not reasonably be part of a plan knowingly to

sell narcotics unless the jury in the instant action is

permitted to find, contrary to the finding of the jury in

the first action, that the defendant illegally and knowingly

sold what was in fact a narcotic.”

State v. Little, 87 Ariz. 295,

(emphasis added).

» 350 P.2d 756, 762 (1980)

need not and should not speculate as to the jury's basis of

decision. The simple fact is that twelve men and women were

asked to decide whether Scott Currier was murdered by Donald

Paradis. They reached a unanimous decision that Paradis was "not

guilty" of murdering Scott Currier. Because Donald Paradis was

put once in jeopardy of this charge and succeeded in demonstrat-

ing his innocence to a jury of his peers, he should not have been

forced to essentially redefend himself against that same murder

charge in additional proceedings.

However, the majority also claims that "the evidence of

Currier's death and its connection to appellant was not intro-

duced for the primary purpose of showing the guilt of appellant

regarding the death of Currier, but rather to explain to the jury

a possible motive the appellant may have had to parcicipate in

the murder of Kimberly Palmer and to connect him with that

murder.'' Supra, at np. 10. My rejoinder is essentially two-fold.

First, it is obvious that the evidence in yuestion could not be

used to show appellant's guilt with regard to the Currier

murder--appellant had just been acquitted of that crime, and even

the majority must agree that the double jeopardy clause precludes

actually retrying a person for the same crime.3 Thus, the

majority's reasoning that the evidence of appellant's complicity

in the Currier murder is not meant to actually show appellant's

guilt is tautological and in fact proves too much because it will

always be true. The prosecution will always want such evidence

for some other reason than to prove the defendant's guilt--either

I agree with this reasoning and find it to be especially

relevant in the present circumstance, where the majority has

likewise relied on a "common scheme" rationale to justify

admission of the prior charge.

3 The only surprising thing about the majority's pat response

is that by stating that is was not the prosecution's primar

purpose to show the appellant's guilt in the Currier me it

would seem to imply that such was perhaps a secondary purpose--a

rather startling admission.

Xr 1

for proof of motive, intent, a common scheme or plan, or even to

provide, as Judge Haman said in this case, 4 ‘rational and

cohesive scenario.' Such "primary" use of the evidence is

precisely what was considered and rejected in Wingate and

Blackburn. It should have been rejected in this case as well.

Second, if it is indeed true that the prosecution was not

attempting to show that Paradis in fact murdered Currier, I

wholly fail to comprehend the relevance of photographs depicting

Currier's mutilated corpse and other evidence relating not to the

murder of Kimberly Palmer, but to the murder of Scott Currier.4

In view of prosecution witnesses referring to Currier as "the

victim," the jury is certainly to be forgiven if it became

confused as to precisely for which crime they were trying Donald

Paradis. Even assuming, arguendo, that some modicum of truth

existed in the conclusion of the trial court that evidence of the

Currier murder was necessary to provide for the jury a "rational

and cohesive scenario," was it absolutely necessary to parade

before the jury all the gory details of a murder for which the

appellant had been acquitted? In my view, the trial court could

clearly have satisfied any such need to portray a rational and

cohesive scenario by permitting the State to show the fact of

Scott Currier's death and of his relationship with Kimberly

Palmer, while at the same time exciudiny the lurid details of the

event .° See State v. Sharp, 101 Idaho 498, 515, 616 P.2d 1034,

+ I have myself reviewed the photographs of Currier received

into evidence against the appellant while on trial for the murder

of Kimberly Ann Palmer. Although I have carefully considered

including them as an attachment hereto, I have decided that the

purpose served thereby--depicting better than any words the gore

and butchery of Scott Currier’s murder--is outweighed by a

sensitivity which tells me that such should not be published.

They are not photographs of the average murder victim.

5 We note, in this respect, that the record clearly shows that

the appellant offered to stipulate as to the fact of Currier's

murder. What the defendant objected to throughoyut the trial, as

defense counsel reiterated in oral argument, was the introduction

of the "rather gruesome and graphic photographs and pieces of

evidence from Dr. Brady,'' a forensic pathologist and the State

(1980) (bBistline, J., dissenting). Trul the etfect of the

accumulated testimony concerning Scott Currier's murder was to

seriously prejudice the appellant and force him to "run the

gauntlet a second time,’ Ashe, supra, by again retuting evidence

of a crime for which he had alreacy been acquitted.

Even if this Court were not prepared to adopt the view that

notions of collateral estoppel are sufficient to bar evidence of

prior criminal charges for which a defendant has been acquitted,

the Court, nevertheless, could and should have neld the pro-

bative value of such evidence to be outweighed by the prejudice

it created for the appellant. Previous Idaho case law in this

area has extended the rule of State v. Needs, 99 Idaho 883, 591

P.2d 130 (1979, to evidence "of other crimes for which [defen-

dants] have not been charged."' State v. Izatt, 96 Idaho 667, 534

P.2d 1107 (1975) (emphasis added). See State v. Crawford, 99

Idaho 87, 577 P.2d i135 (1978). But, before today it has never

been the law in Idaho that evidence of prior acquitted criminal

charges are admissible on any of the justifications in Needs. In

this case, the defendant had been charged--and acquitted. I

regret the Court's unfortunate decision to further extend the

Needs rule to evidence of crimes for which the defendant has been

acquitted as well as not charged, and would hold such evidence to

be inadmissible.

The majority cites 86 A.I.R.2d 1132 for the proposition

that "evidence of a prior acquitted crime is generally allowed if

it falls within one of the recognized exceptions.'' Supra, at 8.

However, the comments of that annotation's author are instructive

in this context. After noting that, indeed, "the numerical

weight of authority" had adopted the rule cited by the majority,

the author states the following:

Medical Examiner for Oregon. The prosecution, however, refused

on the basis that it had to have introduced all of the evidence.

= 25 «

° ”

"On the other hand, a few authorities take the

view that, as a yveneral proposition, evidence as

to another offense of which the defendant was

acquitted is not admissible. This view rests

primarily on the persuasive ground that de fen-

dant's acquittal of an offense should relieve him

from having to answer again, at the price of

conviction for that offense or another, evidence

which amounts to a charve of a crime of which he

has been acquitted.

"In view of the fact that some of the courts

which follow the rule under which, notwithstanding

defendant's acquittal of another offense, evidence

of the facts which were the basis of the prosecu-

tion is admissible concede that upon his introduc-

ing the record of acquittal, that record is to be

regarded as a conclusive adjudication that the

defendant did not commit the other offense, and

that the jury should be so instructed, it seems

preferable not to submit to the jury the facts

regarding the other offense, since the _ impres-

sion, unfavorable to the defendant, resulting

from his former arrest and the charge of crime at

an earlier occasion never can be erased from the

mind of the jury.

86 A.L.R.2d 1132, 1135 (1962) (emphasis added).

In addition, however, there is ample authority for the

proposition that evidence of prior acquitted crimes should be

excluded as involving undue prejudice to the defendant. State v.

Little, 87 Ariz. 295, 350 P.2d 756 (1960); Asher v. Commonwealth,

324 S.W.2d 824 (Ky. 1959); McDowell v. State, 142 Tex.Crim. 530,

155 S.W.2d 377 (1941); People v. Milano, 59 App.Div.2d 852, 399

N.Y.S.2d 226 (1977); United States v. Gurney, 418 F.Supp. 1265

(D.C. Fla. 1976); People v. Ulrich, 30 I11.2d 94, 195 N.E.2d 180

(1964); People v. Corbeil, 77 Mich.App. 691, 259 N.W.2d 193

(1977); State v. Kerwin, 133 Vt. 391, 340 A.2d 45 (1975); People

v. Atkins, 96 Mich.App. 672, 293 N.W.2d 671 (1980); Stuart v.

State, 561 S.W.2d 181 (Tex.Crim. 1978); People v. Bouton, 50

N.Y.2d 130, 428 N.Y.S.2d 218, 405 N.E.2d 699 (1980); State v.

Naranjo, 94 N.M. 407, 611 P.2d 1101 (1980); State v. Anonymous,

34 Conn. Supp. 689, 389 A.2d 1270 (1978). The majority states,

o 96 «

in justifying the admissibility of the evidence concerning the

Currier.murder, that "regardless of his guilt or innocence in

Currier's death, the evidence of that death is still highly

relevant in showing a possible motive for appeilant's involvement

in Palmer's murder.'' Supra, at ll. However, in a similar case

involving the trial court's admission of a prior criminal charge

for which the defendant was acquitted on the basis that it

evidenced a common scheme or plan encompassing the’ present

criminal charge, the Arizona Supreme Court stated the fo’ lowing:

"The theory is that evidence, though inadmis-

sible for one purpose, may be admitted if relevant

for a different purpose. We are unable to

subscribe to this formulation as it applies to the

instant situation. We agree with the recognized

exceptions to the general rule excluding evidence

of former offenses, because that evidence is

relevant, other than as proof of the character of

the defendant, and because we believe that the

need for and desirability of such evidence

outweigh any prejudice to the defendant. Relevanc

is thus not the sole test of the admissibility o

evidence; admissibility depends, rather, on a

balancing of the various effects of the admission

of such evidence, considered in the light of

recognized rules of law governing the administra-

tion of criminal justice.

"The fact of an acquittal, we feel, when

added to the tendency of such evidence to prove

the defendant's bad character and criminal

propensities, lowers the scale to the side of

inadmissibility of such evidence."

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

(enphasis added).

I, too, would hold such evidence, though perhaps relevant,

to be overly prejudicial and thus inadmissible.

In Idaho, the rule is clearly that "[t]he probative value of

the evidence linking the defendant to the commission of the crime

is to be weighed against the prejudice to the defendant and the

inclusion or exclusion of such evidence is a matter for the sound

discretion of the trial court." State v. Sharp, 101 Idaho 498,

« 33 =

501, 616 P.2d 95, —. (1980). In the present case, it is

clear that both the introduction of evidence linking the appel-

lant to the murder of Scott Currier, and the infiammatory nature

of that evidence, were unnecessary to the prosecution's case and

highly prejudicial to that of the appellant. I would therefore

hold that the trial court abused its discretion in admitting such

evidence and that appellant is entitled to a new trial free from

the prejudice which to any rational mind was created against

Paradis by introducing testimony and photographs identical to

that which had been used to try Paradis in Washington for the

murder of Scott Currier. There is simply no justification for

the refusal of the prosecutor and the trial court to allow the

stipulation which Paradis' counsel offered to make in lieu of the

testimony and photographs which both the prosecutor and the court

would completely destroy Paradis' right co a fair trial,

tt.

1.C. § 19-2827(b)(1) directs this Court that with regard to

a death sentence that we shall determine whether the sentence

was imposed under the influence of passion, prejudice, or any

other arbitrary factor. My best guess is that the drafter of

this provision, perhaps really the original drafter from whom it

was likely borrowed, forgot for the moment that the 1973 post-

Furman legislature purported to remove sentencing as a jury

function. Irrespective of the validity of any conjecture in that

6 "The Idaho Constitution, as first approved on July 3,

1890, an as it reads today, provides is Art. 1, 3 7:

"Right to trial by jury.--The shan of trial by

jury shall remain inviolate. .

That right of trial by jury as it existed at the time our

constitution was adopted provided for jury participation in

the capital sentencing process.

"At the time of Furman, I.C. § 18-4004 read:

= =

regard, the provision is there, and this Court must accept that

the clear intendment thereof is that the drafter, and in turn the

enacting legislature, were fearful that sentencing judges were

not beyond and above being influenced by passion or prejudice in

sentencing a convicted first degree murderer. I have always

thought otherwise, and in fact this provision points to a flaw in

the sentencing which yoes hand in hand with non-jury sentencing.

If a jury imposed a sentence infected with passion or prejudice,

who is the best positioned to know that it has happened? Is it

five appellate judges some six to twelve months later on reading

a cold record? Or is it the trial judge who, immediately and at

the time the sentence is imposed, has fresh in his mind all of

the evidence, all of the trial proceedings, and has personally

'Punishment for murder.--Every person guilty of

murder in the first degree shall suffer death or

be punished by imprisonment in the state prison

for life, and the jury may decide which punishment

shall be inflicted. Every person guilty of murder

in the second degree is punishable by imprisonment

in the state prison not less than ten years and

the imprisonment may extend to life.’

In its first post-Furman session (1973), the Idaho legisla-

ture deleted the jury function from I.C. § 18-4004 and made

all convictions of first degree murder subject to the death

penalty. This was done in an attempt to remove the "cruel

and unusual punishment' aspects disapproved in Furman."

"After the United States Supreme Court in a series of

cases declared statutes of other states which were similar

to Idaho's 1973 version unconstitutional, the Idaho legisla-

ture responded in 1977 with the present statutory scheme

providing for inquiry into mitigating or aggravating

circumstances as set forth in I.C. 19-2515 et seq. That

amendment changed the statute back to its pre-1973 language

except that it omitted restoring the jury function... .

State v. Creech, —_ Idaho _, _» 670 P.2d 463, 477

(1983) (Huntley, J., dissenting).

% +

pbserved the jurors and their reactions all through the crial

and at oral summation? The answer is so self-evident as to not

need the saying. But, under the present scheme the legislature's

judgment is that five appellate judges on a_ voluminous cold

record can deduce whether a sentencing judge has performed his

function under the influence of passion, or of prejudice, or of

both, or some other undefined "arbitrary factor." It is to

expect too much that all members of a busy Court will painstak-

ingly peruse those records and at the same time competently

attend to other matters as well. Trial judges, historically,

have been the first-hand arbiters who initially determine whether

a jury's verdict at the guilt phase of a trial has been’ improp-

erly tainted. Similarly, the jury should be the sentencer, and

the trial judge, not this Court, should be the initial overseer.

Today we necessarily labor under the legislative philosophy

that trial judges, as sentencers, may be arbitrary, and they may,

while under the influence of passion or prejudice, impose

sentences of death.

With that mind, although possessed of the highest regard for

the sentencing judge in this case, I am brought to the conclusion

that he may, as with many of us, have little or no regard for

motorcycle gangs. I am brought to the conclusion that such is

reflected in his refusing to accept the proffered stipulation,

and forcing Paradis into a trial which could not be fair. I am

brought to the conclusion that the photographs of the murdered

Scott Currier, brought into this case where the charge was the

murder of Kimberly Palmer, are so gruesome that the judge in all

likelihood was himself affected thereby--even though perhaps not

conscious that this was so. In all candor, I admit that had I

been a juror in this case, the photographs of Scott Currier's

body would have done far more than prove that he was dead, and

that Paradis had a motive for killing Kimberly Palmer or having

- 30 -

her killed. Had I been a sentencing judge, I do not believe that

I could have ceased being, a person at the same time, and would

again concede that those photoyraphs might very well have

affected my judgment.

For these reasons, contrary to what I have previously stated

in footnote 4, and mindful that my obligation as a member of this

Court must outweigh any notions of sensitivity, I have concluded

to append hereto a random sampling of the photographs. It is

true that one picture has the worth of a thousand words. Here,

indeed, words cannot adequately portray the inflammatory nature

tf the osav photographs of the murdered Scott Currier.

', J., dissenting

yi ‘ase presents a very difficult dilemma for an appellate

court, in that the facts tend to indicate that the defendant

committed a horrible crime in a manner which fully entitles him to

suffer the death penalty.

However, the trial was conducted in a manner which violates all

reasonable concepts of due process and by permitting the decision

to stand the majority is doing great violence to the procedural

protection to which our citizens are entitled, in order to sustain a

result in one case.

However costly and inconvenient it might be, I would think it

better that we remand this case for a new and proper trial rather

than to permit the prostitution of those safeguards of individual

liberties which make it possible for this democracy to function.

I join the dissent of Justice RBistline, and in addition I

remain of the opinion that the Idaho capital sentencing process is

uneonstitutional in two respects, both of whith could be readily

corrected by rather simple legislative amendment:

(1) It does not provide for utilization of the

jury, which violates both the Idaho and

linited 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-

» 31 «

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 Tdaho v. Creech, __ Idaho __, 670 P.2d 463

(1983), and State of Idaho v. Sivak, _ | Idaho __ , __ P.2d

(1983).

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ors

“uae,

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. ©

STATE OF IDAHO,

Vv.

DONALD M. PARADIS,

IDAHO SUPREME COURT/COURT OF APPEALS

Plaintiff-Respondent, ORDER

NO. 14565

aw?

Defendant-Appellant.

COUNSEL:

The Court has ORDERED that Appellant's PETITION FOR REHEAR-

ING filed January 9, 1984, of the Court's Opinion issued December 19,

1983, be, and hereby is, DENIED.

cc:

DATED this Pte aay of February, 1984.

By Order of the Supreme Court

Frederic - Lyon, C

Supreme Court/Court of Appeals

State of Idaho

Counsel of Record

APPENDIX "A" 37

IN THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE

STATE OF IDAHO, IN AND FOR THE COUNTY OF KOOTENAI

STATE OF IDAHO,

Case No. F 29468

Plaintiff,

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515,

IDAHO CODE

vs.

DONALD MANUEL PARADIS,

Defendant.

ee ee ee ee

The above defendant having been found guilty by a jury

by verdict rendered December 10, 1981, of the crime of

MURDER IN THE FIRST DEGREE, an offense for which the law

authorizes the imposition of the death penalty; and the

court having ordered a presentence investigation and there-

after having held a sentencing hearing for the purpose of

hearing all relevant evidence and argument of counsel in

aggravation and mitigation of the offense;

NOW, THEREFORE, the court hereby makes the following

findings:

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

December 10, 1981.

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

cluding a report of mental evaluation of the defendant, was

prepared pursuant to orders of the court and copies thereof

were delivered to the defendant or his counsel, as well as to

counsel for the plaintiff, at least seven (7) days prior to

the sentencing hearing pursuant to Section 19-2515, Idaho

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 1

APPENDIX B B-1l

Code, and the Idaho Criminal Rules. That both plaintiff and

the defendant have filed herein written acknowledgments of

such receipt of copies of said presentence report and all

portions thereof.

3. Notice of Intent To Recommend Death Penalty: That,

pursuant to order entered herein on January 15, 1982, plaintiff

filed herein a written notice of its intent to seek and re-

commend the imposition of the death penalty; that a true and

correct copy of said notice was timely served upon counsel

for the defendant.

4. Notice of Aggravating Circumstances: That, pur-

suant to order entered herein on January 15, 1982, plaintiff

filed cca a written enumeration of aggravating circumstances

which it intended to prove in accordance with Idaho Code Section

19-2515 in order to justify its recommendation of the death

penalty; that a true 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 January 15, 1982, defendant filed

herein a pre-sentence statement enumerating mitigating factors

and circumstances which defendant intends to rely upon in

opposing imposition of the death penalty; such statement is

entitled, "Bill of Particulars as to Mitigating Circumstances"

and a true and correct copy of the same was timely served

upon counsel for the plaintiff.

6. Sentencing Hearing: That, pursuant to order entered

January 15, 1982, a true and correct copy of which was timely

served upon counsel for plaintiff and for defendant, sentencing

hearing commenced to be heard on February 22, 1982, and, after

being continued, was had and concluded in the presence of the

defendant on February 24, 1982; that, at said hearing the court

heard relevant evidence in mitigation of the offense, arfu-

ments of counsel, and a statement by the defendant. That the

plaintiff presented no evidence at such hearing but advised

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 2

the court that it was relying upon the evidence admitted at

trial.

7. Facts and Argument Found in Mitigation: The defendant

has filed herein a document entitled, "Bill of Particulars as

to Mitigating Circumstances", listing and commenting upon miti-

gating factors which the defendant contends preclude imposi-

tion of the death penalty. These are considered in the order

that they have been presented by the defendant.

a. That there is no evidence of the defendant's

guilt. In large part, the document filed by the defendant

simply reiterates his contention that he is not guilty. Thus,

the defendant states that there is no evidence that the de-

fendant killed Kimberly Ann Palmer, was present when she was

killed, or in any way participated in her killing. The de-

fendant further contends that the testimony of Aera Beaver

during the trial, coupled with the testimony of Roseanna Moline

heard during hearing upon motion for new trial, and the testi-

mony of Thomas Henry Gibson, related during the trial of State

v. Gibson, Kootenai County Case No. F 29470 } all support his

claim of innocence. While the defendant is correct in his

assertion that Ms. Moline, Ms. Beaver, and Mr. Gibson all

testified that the defendant was not present when Kimberly

Palmer was killed, the testimony is contradictory and, at

least with respect to that given by Ms. Moline, nearly in-

credible as was more fully addressed in the court's opinion

relating to the motion for new trial.

The most significant problem concerning the claim made by

the defendant that there is no evidence of his guilt is that

the jury found to the contrary. In any event, such contention

} Since the defendant has referred to the testimony of Ms.

Moline and Mr. Gibson, the court will take judicial notice of

such testimony despite the fact that such evidence was not re-

ceived during the aggravation-mitigation hearing, but was re-

ceived during the course of other proceedings. The court deems

that the defendant has impliedly agreed to consideration of

such testimony and to dispense with formal application of I.C.

19-2516 as to the same.

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 3

of lack of guilt is not found to be a mitigating factor re-

lating to possible punishment.

b. Evidenc@wconcerning death of Scott Currier: The

defendant's "Bill of Particulars" contains an objection to

consideration of any evidence concerning the death of Scott

Currier, whose body wam found together with that of Kimberly

Ann Palmer in Kootenai County, Idaho, but who was killed at

the Spokane residence of the defendant according to the con-

tentions of both the defendant and the plaintiff.2_ The court's

rulings concerning the admission of such evidence during trial

may be the subject of allegations of error on appeal, but such

evidence will be considered insofar as it relates.jp possible

imposition of the death penalty. In any event, the evidence

relating to the death of Scott Currier is certainly not a miti-

gating factor with re@fpect to punishment. am

c. Defendant's prior record: The defendant comments

upon his prior record as disclosed by the presentence report.

In effect, the defendent states that it is not ag pad as it

might appear to be; it is stated that the record shows only

nineteen convictions, only two of which involve felonies. The

court considers thatesxtatement to be accurate, but does not

find that the defendant's prior record in any way is a miti-

gating factor.

d. Defendaat's religious convictions: The defendant

submits that his religious convictions should be considered as

a mitigating factor in considering whether or not the death

penalty should be ia@licted. There is little deubt that at

times during the defendant's life he has expressed a sincere

interest in religion or that, while incarcerated awaiting trial

_-= ss

2 The defendant was found not guilty of the crime of Murder

In The First Degree relating to the death of Currier as the

result of trial had in the State of Washington.

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 4

has successfully completed courses in Bible study. The pre-

sentence report, the psychological evaluation, testimony and

exhibits adduced during the aggravation-mitigation hearin,

and the statements of the defendant himself all support such

conclusion. But it appears to the court from these same sources

that the defendant has not at all times during his life had such

religious convictions, or, at least he has on a number of

occasions conducted himself in a manner which would conflict

with the tenets of such convictions. When the defendant is

good, he appears to be very good; when he is bad, he has been

very bad. His life seems to have vacillated between the two

extremes.

It does not appear that the defendant was involved in any

religious activity during the events leading to the death of

Kimberly Palmer, or that he was leading the life of a reli-

gious person at the time or during the year or so before then.

The court does not find that the defendant's past or present

religious convictions are mitigating factors to be considered

with respect to imposition of the death penalty.

In addition to the possible mitigating circumstances

urged by the defendant and discussed above, the court has

considered the following potential mitigating circumstances:

a. Age: The defendant is 32 years old. This fact,

in and of itself, is unremarkable and is not found to be a

mitigating circumstance.

b. Family background: As reported in the presentence

report, the defendant is an adopted child. His adoptive father

is deceased. His adopted mother, who is not in good health,

continues to reside in Massachusetts. There are no siblings.

The defendant has not kept in particularly close contact with

his mother or other relatives in recent years.

The court finds nothing in the defendant's family back-

ground which it considers to be a mitigating circumstance.

c. Marital status/children: The defendant was

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 5

married while incarcerated awaiting trial. He has one minor

child by a prior marriage whose whereabouts he does not know.

The court finds nothing in-this which would constitute @ miti-

gating circumstance.

d. Mental or emotional state at the time of the

murder: There is no evidence to suggest that the defendant was

influenced by any extreme mental or emotional disturbance at

the time of the murder.

e. Capacity towppreciate criminality of cewmduct

or to conform conduct to the requirements of law: There is

no evidence to suggest that the defendant's capacity to ap-

preciate the criminality #f his conduct or to conforms

conduct to the requirements of law was in any way impaired by

mental desease or defect or by intoxication, and, in fact, the

report pertaining to the -psychological evaluation ind#eates to

the contrary. There has been no evidence submitted to the

effect that the defendant was under the influence of any con-

trolled substance at the™time of the commission of the-murder.

f. Extent of cooperation with police: There is no

evidence that the defendant has cooperated with the police in

any way concerning the derth of either Kimberly Ann Pertmer or

Scott Currier.

8. Facts and Argument Found In Aggravation: Pursuant

to order entered on JanuatTy 15, 1982, the plaintiff hs filed

herein a document stating which of the aggravating 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 filed prior to the holding of the aggrava-

tion-mitigation hearing, states that the plaintiff relies upon

and intends to prove the~statutory aggravating circumstances

set forth in subsections (6), (8), and (10) of Idaho Code

Section 19-2515(f).

It is the plaintiff’s position that the evidenee shows

beyond a reasonable doubt that:

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 6

(1) By the murder, or the circumstances surrounding

its commission, the defendant exhibited utter disregard for

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

(2) That 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), and,

(3) The murder was committed against a witness or

potential witness in a criminal or civil legal proceeding be-

cause of such proceeding.

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

its written enumeration of such claimed aggravating circum-

stances a brief statement of the reasons for the contention

that such aggravating circumstances should be found by the court.

The State argmented such statements by argument at the hearing

and, by sentencing brief filed herein, asks that the court

consider the testimony of Thomas Henry Gibson related during

the trial of State v. Gibson, Case No. F 29470, as well as

a statement made by Cynthia hinewe to police authorities which

statement is contained in the presentence report.

As previously noted herein, the Defendant has also asked

that Mr. Gibson's testimony be considered with respect to the

aggravation-mitigation hearing, and, by such request, it is

the opinion of the court that the defendant has impliedly

agreed to dispense with the formal requirements of I. C. 19-

2516 with respect to such testimony.

However, the defendant has not in any manner agreed to a

consideration of the statment of Ms. Simera, and, in fact, has

objected to the court doing so. I. C. 19-2516 specifically

mandates that:

"The circumstances must be presented by the

testimony of witnesses examined in open court,

x x x No affidavit or testimony, or representation

of any kind, verbal or written, can be offered to

or be received by the court, or a judge thereof,

in aggravation or mitigation of the punishment,

except as provided in this and the preceding

section.

I. C. 19-2516

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 7

The preceding section mandates that a presentence report

must be ordered and provides that,:

"Evidence admitted at the trial shall be considered

and need not be repeated at the sentencing hearing."

I. C. 19-2515

The Idaho Supreme Court has held that:

"Where the defendant expressly or impliedly agrees

to dispense with the formality possible under the

statute, i.e., the presentation of all statements

orally and under oath, and instead allows pre-

sentation of the facts through prior evidence,

presentence reports, argument of counsel, and the

like, we find no prima facie error due to such

use.”

State v. Osborn, 102 Idaho (1982)

Thus, it seems that where, as here, the defendant asks

that the court consider matters which have not been presented

in open court via "live" testimony as required by I. C.

19-2515, (such as the prior trial testimony of Mr. Gibson),

such testimony can be considered. However, where the de-

fendant does not so agree, the court is limited by the mandate

of I. C. 19-2516 to the trial testimony and to such testimony

as is presented by witnesses at the hearing (albeit, the

normal rules of evidence obtaining at trial may not be strictly

applicable).° .

Thus, in considering the question of whether or not there

are aggravating circumstances in this case, the court can look

to the following:

1. The evidence admitted at trial.

2. The testimony of Thomas Henry Gibson admitted during

the trial had in Kootenai Case No. F 29470.

3. The testimony of Roseanna Moline received during the

hearing concerning the motion for new trial.

3 Seemingly, and despite the fact that I. C. 19-2515 mandates

that a presentence investigation be had, the normal report re-

sulting from such investigation could well be considered a

"representation" which could not be considered unless the de-

fendant impliedly or expressly agreed thereto.

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 8

4. Those portions of the presentence report not ob-

jected to by the defendant, including the report of psycholo-

gical evaluation.

5. Arguments of counsel.

6. Oral statement of the defendant.

Based upon the foregoing, and in order to properly

evaluate the contentions of the plaintiff concerning aggrava-

ting circumstances, the court makes the following findings of

fact concerning the circumstances surrounding the commission

of the murder; it is found, beyond a reasonable doubt, that:

a. On June 21, 1980, Kimberly Ann Palmer was a female

human being, weighing approximately 100 pounds and being

approximately 5'4" in height.

b. Prior to June 21, 1980, Kimberly Ann Palmer was only

slightly or not at all acquainted with the defendant, having

only seen and possibly met the defendant once or twice before

during the preceding few weeks.

ec. Shortly after 12:45 o'clock a.m. on June 21, 1980,

Kimberly Ann Palmer accompanied one Scott Currier to a certain

residence located at South 24 Dearborn Street in Spokane,

Washington, which residence was then being rented by the de-

fendant, Donald Manuel Paradis, who also resided there at the

time.

d. Present at said residence at the time stated were

Thomas Henry Gibson, Charles Amacher, Cindy Simera and Roseanna

Moline; that the defendant and one Larry Evans were also

present at least at certain times during the days of June 20

and June 21, 1980. While it is probable that both Evans and

the defendant were present at the residence at times when

Scott Currier and Kimberly Ann Palmer were present, the court

cannot so find such fact beyond a reasonable doubt based upon

the evidence which it can consider pursuant to I. C. 19-2516.

e. Sometime after 12:45 o'clock a.m. and 6:45 o'clock

a. m. on June 21, 1980, at the Dearborn Street residence

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 9

an altercation ensued involving Scott Currier, on one side,

and the male persons who were present at the residence, on the

other.

f. As the result of such altercation, Currier was

brutally beaten, receiving massive head wounds from which he

died at such residence during the early morning hours of

June 21, 1980.

g. Following the death of Currier, and at some time be-

tween 12:45 o'clock a.m. and 6:45 o'clock a.m. on June 21,

1980, Currier's body was put into a sleeping bag which, in

turn, was placed into Currier's Volkswagen van which had been

parked outside the residence.

h. The Volkswagen van was then driven to a location on

Mileck Road, south of the City of Post Falls in Kootenai

County, Idaho.

i. That the defendant, Gibson, and Evans were in the

van (with one of them driving it) at the time it arrived at

such location. That Gibson was an occupant of the van from

the time that it left the Dearborn Street residence; that it

is highly likely that Evans and the defendant were also in the

van from that point, but the court cannot find that fact be-

yond a reasonable doubt. It is found beyond a reasonable doubt,

that either Evans and the defendant accompanied Gibson from

the residence, or, that they joined Gibson enroute to the

Mileck Road location.

j. Kimberly Ann Palmer was also transported in such

vehicle from the Dearborn Street residence to the Mileck

Road location at the same time as was the body of Scott Currier.

k. Kimberly Ann Palmer was alive at the time.

1. The character of the Mileck Road location is wooded

and isolated from any nearby dwelling houses or other inhabited

structures,

m. After reaching said location, the body of Scott

Currier was removed from the vehicle and, while still inside

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 10

the sleeping bag, was drug into the bushes and undergrowth a

short distance off Mileck Road.

n. At approximately the same time that Currier's body

was being disposed of, Kimberly Ann Palmer was killed at a

location approximately 90 feet off Mileck Road, which loca-

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

small stream.

o. That during the early morning hours of June 21, 1980,

Kimberly Ann Palmer was killed by means of manual strangulation

and her body was left face down in said stream.

p. That either the defendant, Thomas Henry Gibson, or

Larry Evans actually killed Kimberly Ann Palmer.

q. That the defendant either directly committed the act

constituting the premeditated murder of Kimberly Ann Palmer

or aided and abetted in its commission.

r. Kimberly Ann Palmer did nothing to provoke the acts

resulting in her death.

s. The sole reason and motive for the killing of Kimberly

Ann Palmer was to permanently insure that she would not reveal

to anyone the circumstances resulting in the death of Scott

Currier.

In making such findings, the court has considered the

argument of the defendant that two individuals who were present

at the Dearborn Street residence during the early morning

hours of June 21, 1980, have testified that the defendant,

Donald Paradis, was not present at the time when Kimberly Ann

Palmer was killed, and that these same individuals testified

that she was killed at the Dearborn Street residence in

Spokane, Washington.

Thomas Henry Gibson testified during his trial. Ac-

cording to Mr. Gibson, the defendant, Paradis, was present at

the residence and did participate in the killing of Scott

Currier; however, Gibson says that Paradis then left and that

Kimberly Palmer was strangled by Larry Evans after Gibson had

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 11

knocked Miss Palmer unconscious as she attempted to escape

from the house.

Roseanna Moline says that, while she can't be absolutely

certain, to the best of her knowledge, Mr. Paradis was not

present when Currier was killed. Furthermore, she says that

Gibson strangled Miss Palmer and that she (Moline) observed

Gibson engaging in sexual intercourse with a dead or un-

conscious Miss Palmer on the kitchen floor of the residence

shortly prior to 7:00 o'clock a.m. on June 21, 1980. Ms.

Moline doesn't mention Mr. Evans as being present.

The court has also considered the fact that another wit-

ness, Aera Beaver, says that the defendant was with her during

the times in question, and, in fact, until nearly the same

time when the defendant was, according to Gibson, with Gibson

and Evans dumping the bodies of Currier and Palmer at the

Mileck Road location (a distance of perhaps 20 miles from the

residence).

The defendant also states that he was not present when

Miss Palmer was killed.

So, Gibson says Evans did it, Moline says Gibson did it,

Evans has never been apprehended, Beaver says Paradis was with

her and couldn't have done it, and Paradis says the same.

Against this contradictory evidence, the State produced cir-

cumstantial evidence which, when buttressed by the opinion

testimony of forensic pathologist William Brady, convinced

each member of two juries, beyond a reasonable doubt, that

Kimberly Ann Palmer was indeed killed in Idaho and at least

by Mr. Gibson and Mr. Paradis acting as principals.

9. Statutory Aggravating Circumstances Found Under

Section 19-2515(f): It is the finding of the court that the

evidence adduced at trial, and relied upon by the State during

the aggravation-mitigation hearing, shows, beyond a reasonable

doubt, that the murder and the circumstances surrounding its

commission, that the defendant exhibited utter disregard for

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 12

human life within the meaning of Idaho Code Section 19-

2515(f)(6).

In explaining such finding, the court cannot improve upon

its explanation set forth in its Findings Of The Court In

Considering Death Penalty rendered in State v. Gibson, Kootenai

Case No. F 29470. There the court stated:

"The facts found hereinabove leave no doubt

that the killing of Kimberly Ann Palmer was an

unprevoked killing of a defenseless human being

accomplished in a coldly premeditated fashion

for the sole reason of insuring her silence

concerning the death of Scott Currier. If

the phrase, “utter disregard for human life"

means "cold-blooded" or"pitiless", then it is

difficult to conjure up a situation in which the

taking of a human life could be greatly more

"cold-blooded" or "pitiless". The court believes

that the term, "cold-blooded" means that, after

having considerable time to reflect upon the situa-

tion and consider available options, «he perpe-

trator coolly and deliberately decides to take a

human life. That is the situation presented in

this case. The term, "pitiless" adds little, if

anything.

Even though, as has been mentioned, the State

has withdrawn its contention that the circum-

stances show the existence of a statutory ag-

gravating circumstance under Idaho Code Section

19-2515(f)(10), the applicability of that sub-

section to the case at hand has not been lost.

Subsection (10) provides that it is a statutory

aggravating circumstance if the murder was com-

mitted against a witness or potential witness in

a criminal or civil legal proceeding because of

such proceeding (emphasis added). The State

recognized that it could not prove the existence of

such an aggravating circumstance, but only be-

cause it was obvious that there was no criminal

or civil proceeding commenced at the time of the

acts involved, and, therefore, it could not be

shown, that the murder was committed against a wit-

ness or potential witness because of such proceeding.

However, there is little question that the

legislative intent in enacting I. C. 19-2515(f)(10)

was aimed at essentially the same societal ob-

jectives as are presented by the factual situa-

tion in this case. Thus, a murder committed to

prevent one from becoming a witness in a future

criminal proceeding, or for the purpose of elimin-

ating the possibility of such a proceedings, 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 is

doubtful that the victim or a potential victim

would deem that to be significant, and the es-

sential motive in the mind of the perpetrator is

the same. And, while the legislature, in enacting

subsection (10) cannot be presumed to have simply

repeated subsection (6) of I. C. 19-2515(f), it

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 13

is clear that there is a relationship among all

of the subsections and an inescapable overlappine.

Thus, the killing of a witness, or potential

witness, exhibits the same type of cool, calculated,

deliberate, and unprovoked taking of a human life

as would be necessary to sustain a finding under

I. C. 19-2515(f)(6), and, while there was no

pending civil or criminal proceeding yet involved

at the time of the murder of Kimberly Ann Palmer,

it is the finding of this court that the motive

for the killing of Kimberly Ann Palmer in and of

itself is substantial evidence that the commission

of her murder was accomplished for reasons, and

under circumstances which exhibit an utter dis-

regard for human life pursuant to I. C. 19-2515(f)(6).

With respect to the defendant's argument that

the evidence must show that the defendant direct-

ly committed the offense charged, there is no doubt

that no such finding can be made. It can be

found beyond a reasonable doubt, and the jury did

so find, that the defendant either directly

committed the act or aided and abetted in its

commission. The court has been provided with no

authority which holds that the general law ap-

Plicable to persons convicted as a principal for

a criminal offense (Idaho Code Section 18-204) is

altered in any manner because the potential penalty

involved is death. Thus, it requires no cita-

tion of authority to state that the law in Idaho

has long been that a person who aids and abets

in the commission of a crime is equally guilty as

one who directly commits the act; and, of course,

is subject to receiving the maximum punishment

allowed by law. The crime of Murder In The First

Degree can be punished by death. Idaho Code

Section 18-4004. Neither that section of the

Code nor the sentencing provisions of I. C.

19-2515 provides for any different penalty in the

event the conviction was had upon the basis that

the defendant only aided and abetted in the com-

mission of the crime.

It must, therefore, be concluded that the

legislature intended that a person who aided and

abetted in the commission of the crime of Murder

In The First Degree could be sentenced to death

providing that the circumstances were such that

the imposition of the death penalty was warranted

pursuant to the provisions of Idaho Code Section

19-2515.

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 pur-

Suant to Idaho Code Section 19-2515(f). It is

apparent in this case, however, that, should the

other two individuals who were involved be con-

victed of the same crime, they could make exactly

the same claim as the defendant is making in this

case. Thus, even though the murder, or the cir-

cumstances surrounding its commission, would warrant

the finding of a statutory aggravating circumstance,

the mere fact that there was more than one per-

petrator would prevent such a finding in many cases

if the defendant's argument is valid.

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 14

It is not difficult to imagine analorous

situations. Assume that three individuals are

convicted of Murder In The First Degree for the

killing of an executive officer because of the

exercise of his official duty. One is convicted

solely as a principal because he planned and en-

couraged the assassination. The other two both

fired bullets into the body of the victim, but

only one bullet was fatal and there is no evidence

which would permit a determination as to which

person fired the fatal shot. Obviously, the

murder would justify the finding of a statutory

aggravating circumstance under I. C. 19-2515(f)(9).

However, if, as defendant here argues, such a

finding can only be made as against the person

who directly accomplished the act of killing, no

such finding could be had as against any of those

involved, regardless of the degree of culpability.

In this case the plaintiff has not withdrawn its con-

tention that the circumstances surrounding the commission

of the murder show the existence of a statutory aggravating

circumstance under Idaho Code Section 19-2515(f)(10). Thus,

in this case the State is maintaining that the murder was

committed against a witness or potential witness in a criminal

or civil proceeding because of such proceeding.

It is the conclusion of the court that the existence of

the phrase, "because of such proceeding" precludes such a

finding. As noted in the Gibson findings (and as there con-

ceded by the State), there was no proceeding commenced at the

time the murder was committed. Thus, it cannot be found that

the murder was committed because of it .. . it was com-

mitted, rather, in order to preclude the commencement of such

a proceeding.

The court continues to adhere to its views expressed in

the Gibson findings concerning the relationship of subsections

6 and 10 of I. C. 19-2515(f), however.

With respect to the contention of the plaintiff that the

defendant, by prior conduct, or conduct in the commission of

the murder at hand, has exhibited a propensity to commit

murder which will probably constitute a continuing threat to

society, the court cannot find, beyond a reasonable doubt,

that such an aggravating circumstance exists under the evidence

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 15

which can be considered.

Such contention is grounded almost entirely upon the

State's contention that the defendant was involved in the

murder of Scott Currier. The only evidence of that which

the court can consider is from the testimony of Thomas

Gibson (together with the fact that Currier was killed in

the defendant's residence). While such a finding could be

sustained if the test were a preponderance of the evidence,

the court cannot find from the evidence which it can con-

sider that the defendant participated in the killing of

Currier "beyond a reasonable doubt."

10. Reasons Why Death Penalty Was Imposed: As set

forth hereinabove, the court has found one (1 ) statutory

aggravating circumstance to exist. Idaho Code Section 19-

2515(b) provides that, "Where the court finds a statutory

aggravating circumstance the court shall sentence the de-

fendant to death unless the court finds that mitigating

circumstances which may be presented outweigh the gravity

of any aggravating circumstance found and make imposition of

death unjust."

The court has found no mitigating circumstances; therefore,

there is nothing which outweighs the gravity of the aggra-

vating circumstance.

As was stated in the Gibson findings, the murder that

was committed in this case was not what might be called a

"commonplace" murder, or what has sometimes been described

as a "normal" murder (if that can be possible). It did not

involve an interfamilial situation or persons who were pre-

viously closely associated as do many, if not most, murders,

There was not even a hint of any emotional upheaval as is

often the case. There is no evidence that the use or abuse

of alcohol or any controlled substance contributed to the

situation as is usually the situation in the so-called "common"

murder. It was a murder committed in a cool, deliberate

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 16

manner for a specific purpose, i.e., to cover up a prior

murder.

The court is aware that the defendant, just as was the

case with Mr. Gibson, denies involvement in the murder of

Kimberly Ann Palmer, and further contends, as did Gibson,

that Miss Palmer was killed in Washington in any event. With

respect to the latter contention, two juries have found to

the contrary on literally the same evidence, that is, they

found, beyond a reasonable doubt that Kimberly Ann Palmer was

killed in Kootenai County, Idaho.

Having found that fact beyond a reasonable doubt, the

rhetorical question is raised: who did the evidence show to

be at the scene of her death at the time of her death? The

answer, of course, is Donald Manual Paradis, Thomas Henry

Gibson, and Larry Evans. One fact is known to an absolute

certainty . . . Kimberly Ann Palmer is dead and she died on

June 21, 1980. Somebody killed her as the result of manual

strangulation. Given the motive and the transporting of Miss

Palmer and the body of Scott Currier to Miieck Road, it is

preposterous to think that Larry Evans acted alone and that

Mr. Gibson and the defendant did not at least aid and abet

in the murder.

It is the opinion of the court, that the imposition of

the death penalty in this case would not be unjust, and that

the imposition of any other penalty would seriously depreciate

the seriousness of the crime committed.

CONCLUSION

That the death penalty should be imposed on the de-

fendant for the capital offense of which he was convicted.

The court having made the above findings in accordance

with Idaho Code Section 19-2515 and Rule 33.1 of the Idaho

Criminal Rules, now therefore,

IT IS HEREBY ORDERED that the above-named defendant

appear before the court at 1:30 o'clock p.m., on_ Thursday,

FINDINGS OF THE COURT IN -

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/ 17

April 8 , 1982, for pronouncement of Judgment

and Sentence herein.

ENTERED this 2S day of April, 1982.

Sy ee

Gary MW Haman, District Judge

I hereby certify that I hand delivered a true

and correct copy of the foregoing FINDINGS OF THE

COURT IN CONSIDERING DEATH PENALTY UNDER SECTION

19-2515, IDAHO CODE, to:

Mr. Marc Haws, Chief Deputy Prosecuting Attorney

Kootenai County, Idaho

Mr. William V. Brown, Attorney for Defendant

206 Elder Bldg., Coeur d' Alene, Idaho

this ZA/D day of April, 1982.

CAROL DEITZ,

Clerk of the District Court

Ye ae

By: a2) | ja

Deputy Cler,

Copies to:

Hon. James Towles

Hon. Dar Cogswell

Hon. Watt E. Prather

FINDINGS OF THE COURT IN

CONSIDERING DEATH PENALTY

UNDER SECTION 19-2515, IDAHO CODE/18

Bia”

plit i

IN THE SUPREME COURT OF THE STATE OF IDAHO

STATE OF IDAHO,

REPORT ON IMPOSITION

DEATH PENALTY

UNDER SECTION 19-2837,

IDAHO CODF.

Plaintiff,

vs.

DONALD MANUFL PARADIS,

Defendant.

The court having sentenced the above defendant to

death for the conviction of the offense of MURDER IN THE

FIRST DEGREE,

NOW THEREFORE, the court hereby makes a report to the

Idaho Supreme Court pursuant to section 19-2827, Idaho Code,

as follows:

1. Facts regarding defendant:

fa) te: Ss

(b) Sex: Male

(d) Marital Status: Married

(e) Family Relationships: Adoptive father deceased,

adoptive mother, no siblings

(f) Dependants: Wife, one daughter from common-law

relationship

(g) Occupation or Trade: Equipment operator,

laborer, cook (see attached Presentence Report )

(h) Educational Background: GFD, one year of

Bible College (see attached Presentence Report)

(i) Relationship to Victim of Offense: None

REPORT ON IMPOSITION OF

DEATH PENALTY UNDER SECTION

19-2827, IDAHO CODE/ 1

APPENDIX B B-19

Name and Address of Counsel Representing Defendant:

William V. Brown, 206 Elder Bldg, P. O. Box 687,

Coeur d' Alene, Idaho, 83814

Summary of any Prior Convictions of Defendant:

See attached Presentence Report

Findings in Support of Imposition of Death Penalty

Made Pursuant to Section 19-2515, Idaho Code. A

copy is attached.

Date Set in Sentencing for Execution:

May 26 1982.

DATED: April Le , 1982,

Pa rT A =

/Gary/M,Maman, District Judge

\ Z

REPORT ON IMPOSITION OF

DEATH PENALTY UNDER SECTION

19-2827,

IDAHO CODE/ 2

B- 20

“~

“a Pa

elles Me ia

IN THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE

STATE OF IDAHO, IN AND FOR THE COUNTY OF KOOTENAI

STATE OF IDAHO,

Plaintiff, Case No. F 29468

vs. JUDGMENT AND SENTENCE

DONALD MANUEL PARADIS,

Defendant.

Nee ee ee

The above-entitled matter came on to be heard before the

Honorable Gary M. Haman,one of the Judges of the above-

entitled Court, on Wednesday, April 7, 1982, pursuant to

previous order of the Court entered April 5, 1982. The

Plaintiff, State of Idaho, was represented by Marc Haws,

Deputy Prosecuting Attorney for Kootenai County, Idaho; the

Defendant was personally present in court and was represented

by William V. Brown, Attorney-at-Law.

WHEREUPON, the presentence report previously ordered

having been filed herein, and the Court at a previous hearing

held February 24 and 25, 1982, having ascertained that the

Defendant had had an opportunity to read said report, and all

parts thereof, and the Defendant having been given an opportunity

to explain, correct, or deny parts thereof, and the Court having

heard the same as well as having heard testimony and argument

in mitigation and aggravation pursuant to Idaho Code Section

19-2515, and the Defendant at such hearing having advised the

Court that he had no legal cause to show why judgment and

sentence should not be pronounced against him, and the Court

JUDGMENT AND SENTENCE/ 1

APPENDIX B B-21

thereafter having entered Findings of the Court in Considering

Death Penalty Under Section 19-2515, Idaho Code, the Court did

then pronounce its Judgment and Sentence in accordance with said

Findings and as follows:

With respect to the charge stated in the Information on

file herein, and pursuant to the verdict of the jury rendered

herein as set forth in the Order of the Court entered December

10, 1981, a copy of which is attached hereto and, by reference,

incorporated herein,

IT IS HEREBY ORDERED, AND IT IS THR JUDGMENT OF THIS

COURT THAT YOU, DONALD MANUEL PARADIS, ARI GUILTY OF THE CRIME

OF MURDER IN THE FIRST DEGREE as charged in said Information

and as found by the unanimous verdict of the jury; and,

IT IS HEREBY FURTHER ORDERED, ADJUDGED AND DECREED that

you be, and you hereby are, sentenced to suffer death in ac-

cordance with the provisions of Idaho Code Section 18-4004

and in the manner prescribed by Chapter 27 of Title 19, Idaho

Code, said sentence to be executed on Mh, 2b . £9S2 ,

at the Idaho State Penitentiary, Boise, Ada County, Idaho.

IT IS HEREBY FURTHER ORDERED that you be, and hereby

are, remanded to the custody of the Kootenai County Sheriff,

there to be held until such time as demand is made for delivery

to the duly authorized guard of the Idaho State Department

of Corrections and for transportation by said guard to the

said Idaho State Penitentiary.

ENTERED at Coeur d' Alene, Kootenai County, State of

F nl

Idaho, this / day of April, 1982.

Ga YHaman, District Judge

——

JUDGMENT AND SENTENCE/ 2

B- 22

I hereby certify that I have mailed a copy of the foregoing

JUDGMENT AND SENTENCE to the following:

Marc Haws, Chief Deputy Prosecuting Attorney

Kootenai County, Idaho (placed in interoffice mailbox)

William V. Brown, Attorney for Defendant

P., O. Box 687, Coeur d' Alene, Idaho 83814

this 7/4 day of April, 1982.

CAROL DEITZ,

Clerk of the District Court

JUDGMENT AND SENTENCE/ 3

® . _

—6§B838-6653 ‘ECEIVED

APpw

\ ly 1984

IN THE SUPREME Coys ;

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

NO.

DONALD M. PARADIS, Petitioner,

Vv.

STATE OF IDAHO, Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

The petitioner, Donald M. Paradis, who is

now held in an Idaho State penitentiary, asks leave

to file the attached Petition for a Writ of Certiorari

to the Supreme Court of the State of Idaho without

prepayment of costs and to proceed in forma pauperis

pursuant to Rule 53.

The petitioner's affidavit in support of

this motion is attached hereto.

William V. Brown

Counsel for Petitioner

P. O. Box 687

Coeur d'Alene, Idaho 83814

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

Supreme Court No.

DONALD M. PARADIS, Petitioner,

Vs.

STATE OF IDAHO, Respondent.

PETITION FOR WRIT OF CERTIORARI

AFFIDAVIT OF DONALD M. PARADIS

STATE OF IDAHO

oath, depose and say that:

i I am the Petitioner in the attached Petition

for Writ of Certiorari;

Y I have no income nor prospect of income due

to my incarceration in the Idaho State Penitentiary under

sentence of death;

Je I have no bank accounts or assets other than

my personal effects which are worth less than SIQO0. OY total

value;

4. All_the State courts below found me to be an

indigent person unable to afford counsel or costs;

oe My financial position is no better now than

when the Idaho courts appointed counsel for me;

AFFIDAVIT P.1

6. Because of my poverty I am unable to pay fees

Or costs or give security therefor; and

‘ My motion to proceed in forma pauperis and

my accompanying Petition for Writ of Certiorari are made in

good faith upon my belief I am entitled to relief from the

sentence of death.

DATED this day of March, 1984.

STATE OF IDAHO )

) ss

County of Ada )

On the Ye day of March, 1984, before the undersigned

Notary Public in and for the State of Idaho, personally ap-

”

peared DONALD M. PARADIS, known to me to be the person wi

name is subscribed to the foregoing Affidavit, and he acknow-

ledged to me that he executed the same as his free and vol-

untary deed.

- ~~

Notary Public in and for

the State of Idaho

Residina at: Post Falls

Commission expires: Life

83-6652

ORG RAS — [RECEIVED

&QUib ss

SUPREME COURT OF THE UNITED STATES APR 30 1984

OCTOBER TERM, 1983 OFfice OF THE CLERK

SUPREME COURT, U.S.

DONALD M. PARADIS, Petitioner,

STATE OF IDAHO, Respondent.

PETITION FOR WRIT OF CERTIORARI

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

IN FORMA PAUPERIS

I, DONALD M. PARADIS, being first duly sworn, depose

and say that I am the Petitioner in the above-encitled

case; that in support of my motion to proceed on appeal

without being required to prepay fees, costs or give se-

curity therefor, I state that because of my poverty I am

unable to pay the costs of said proceeding or to give se-

curity therefor; that I believe I am entitled to redress;

and that the issues which I desire to present on appeal

are the following:

AFFIDAVIT P.i

Whether a prior acquittal bars admission

of evidence concerning the prior murder,

and whether imposition of the death pen-

alty violates the 6th Amendment and the

14th Amendment to the Constitution of

the United State where the jury did not

participate in the imposition of the ca-

pital sentencing process in violation of

my constitutional rights.

I further swear that the responses which I have

made to the questions and instruction below relating

to my ability to pay the cost of prosecuting the ap-

peal are true.

: Are you presently emplcyed?

NSWER: No, I am not. I was last employed in

summer of 1980 as a motorcycle mechanic on a self-

employed basis.

ms Have you received within the past twelve months

any income from a business, profession or other form

of self-employment, or in the form of rent payments,

interest, dividends, or other source?

ANSWER: No, I have not.

: Do you own any cash or checking or savings ac-

count?

ANSWER: Yes, I have a little less than $1,000.00

in a prison account.

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

automobiles, or other valuable property?

ANSWER: No, I do not.

, Fe List the persons who are dependent upon you for

support and state your relationship to those persons.

ANSWER: The only dependent I have is myself.

afin

AFFIDAVIT P.2

I understand that a false statement or answer to

any questions in this affidavit will subject me to pen-

alties for perjury.

DATED this »@_ day of April, 1984.

DONALD M. PARADIS

Petitioner

5/7 rir

Subscribed and Sworn To before me this ~¢ __ day of

April, 1984.

LOO ,°

ign -) oA

Notary Public in and

Aor the State of Idaho

(/ Residing at: 641s<, = DO7U

Commission expires: rvb< |

AFFIDAVIT P.3

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