Opposition Brief — Idaho v. Charboneau
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Supreme Court, U.S.
(tay FILED
fg AUG 23 1989
No. 89-151 JOSEPH F. SPANIOL, JR.
CLERK
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1989
°?¢ 8 8 8 *
THE STATE vied IDAHO,
Petitioner,
vs.
JAIMI DEAN CHARBONEAU,
Respondent.
es ehkhkeett
On Writ of Certiorari To The
Supreme Court of the United States
e® 66 2 3.8
BRIEF IN OPPOSITION
ee ee oe
Greg J. Fuller
Puller Law Offices
P. O. Box 30
Jerome, Idaho 83338
(208) 324-8193
Attorney for Respondent
i
TABLE CONTENTS
GPISLUN BEUOW » > s 6 + 6 6 6 6 2 © © %
CONSTITUTIONAL AND STATUTORY PROVISIONS
STATEMENT OF THE CASE . . « «© «© © © «© «
SUMMARY OF ARGUMENT . . . «© «© © © «© «© «
LACK OF JURISDICTION .... 2 © « «
NO CONFLICT ON FEDERAL LAW ISSUES . .
DS, 6 Oe 8 Oe Oe a ee ee
LACK OF JURISDICTION .... ++ © «
NO CONFLICT ON FEDERAL LAW ISSUES . .
ARBAUGH LETTER AND BOOTH V. MARYLAND
HEARSAY EVIDENCE IN CAPITAL SENTENCI
WEIGHING OF MITIGATING
AND AGGRAVATING CIRCUMSTANCES ...
CONCLUS ION . . . . . . . . . . . . . .
APPENDIX
State v. Charboneau, Nos. 16339/16741
Supreme Court of Idaho, 1989, Ida. Lexis No.
NG
53, April 4, 1989, as amended April 18, 1989.
pC Re FO i) a
Letter To Judge Becker From Victim's Father
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17
18
80
84
ii
TABLE OF CASES AND AUTHORITIES
CASES
Booth v. Maryland, 428 U.S. 496 (1987) ....
Cabana v. Bullock, 474 U.S. 376 (1986) ....
South Carolina v. Gathers, 109 S.Ct. 2207 (1989)
Godfrey v. Georgia, 446 U.S. 420 (1980). ...
United States v. Grayson, 438 U.S. 41 (1978) .
Green v. Georgia, 442 U.S. 95 (1979) .....
Rech ¥, ‘paceesce, 326 0.8. 117 (19465). . . » -
Lockett v. OGhie, $38 0.8. 5866 (1978) . ..e «
Michigan v. Long, 463 U.S. 1032 (1983) ....
Maynard v. Cartwright, 108 S.Ct. 1853 (1988) .
Mullaney v. Wilbur, 421 U.S. 684 (1975). ...
Muskrat v. United States, 219 U.S. 346 (1911).
State v. Osborne, 631 P.2d 187 (Idaho i981). .
Roberts v. United States, 445 U.S. 552 (1980).
State v. Thompson, 101 Idaho 430, 614 P.2d 970
United States v. Tucker, 404 U.S. 443 (1972) .
Williams v. New York, 337 U.S. 241 (1949) ..
Williams v. State, 358 U.S. 576 (1959) ....
UNITED STATES CODES
28 ¥.8.C. Section 1257(a) . . . . + . . . . ~
STATUTES
IDAHO CODES
19-2515(c) .
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19-2515(c) .
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19-5306(1)(b) & (3)
SUPREME COURT RULE
IDAHO CRIMINAL RULES
32 . . 7 + . . ~ . . . + . 7 . - . . 7 . . .
32(e)(1) See i cE SR ee a Sa Te a i * 2 @: =
IDAHO RULES OF EVIDENCE
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(1980)
10
OPINION BELOW
The Idaho Supreme Court, in 1989 Opinion Number 44
(Appendix 1 - 79), reversed Jaimi Charboneau's death sentence
for the following reasons: (1) The Rule of Booth v. Maryland,
428 U.S. 496 (1987) was violated when the sentencing Court
admitted into evidence a letter from the murder victim's father
which sets forth the family members‘ opinions and
characterizations of the crime and of the defendant. The
letter also noted the impact of the crime on ‘the victim's
daughter; (2) Hearsay evidence may not be considered by a
sentencing judge in a capital proceeding unless such evidence
has been made a part of a presentence investigation report in
strict compliance with the state's death penalty sentencing
statutes, and in death penalty cases “a strict compliance with
the procedures for sentencing is required." (Appendix 33); (3)
Pursuant to the Idaho Deatn Penalty Statute, the judge must
weigh "all the mitigating circumstances presented...against
each of the [statutory] aggravating circumstances separately."
(Appendix 42); (4) There is no evidence in the record to
support a critical portion of the sentencing Judge's Findings
of Fact. (Appendix p. 38)
The decision is still unpublished and has_ been
included in Appendix 1 - 79.
‘
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Idaho Code Section 19-2515 provides, in pertinent
part:
(c) Where a person is convicted of an offense which
may be punishable by death, a sentence of death shall
not be imposed unless the court finds at least one (1)
statutory aggravating circumstance. Where the court
finds a statutory aggravating circumstance the court
shall sentence the defendant 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.
(d) In all cases in which the death penalty may be
imposed, the court shall, after conviction, order a
presentence investigation to be conducted according to
such procedures as are prescribed by law and shali
thereafter convene a sentencing hearing for’ the
purpose of hearing all relevant evidence and arguments
of counsel in aggravation and mitigation of the
offense. At such hearing, the state and the defendant
shall be entitled to present all relevant evidence in
aggravation and mitigation. Should any party present
aggravating or mitigating evidence which has not
previously been disclosed to the opposing party or
parties, the court shall, upon request, adjourn the
hearing until the party desiring to do so has had a
reasonable opportunity to respond to such evidence.
Evidence admitted at trial shall be considered and
need not be repeated at the sentencing hearing.
Evidence offered at trial but not admitted may be
repeated or amplified if necessary to complete the
record.
Idaho Code Section 19-2516 provides as follows:
Inquiry into circumstances - Examination of witnesses.
- The circumstances must be presented by the testimony
of witnesses examined in open court, except that when
a witness is so sick or infirm as to be unable to
attend, his deposition may be taken by a magistrate of
the county, out ‘of court, upon such notice to the
adverse party as the court may direct. No affidavit
or testimony, or representation of any kind, verbal or
written, can be offered to or received by the court,
or a judge thereof, in aggravation or mitigation of
the punishment, except as provided in this and the
preceding section.
Idaho Criminal Rule 32 provides, in pertinent part:
The following standards and procedures shall govern
presentence investigations and reports in the Idaho
courts:1
(b) Contents of a presentence report. A trial judge
may request a record check and other background
information concerning the defendant prior to sentence
without conducting a full presentence investigation of
the defendant. However, whenever a full presentence
report is ordered, it shall contain the following
elements:
(1) The description of the situation surrounding the
criminal activity with which the defendant has been
charged, including the defendant's version of the
criminal act and his explanation for the act, the
arresting officer's version or report of the offense,
where available, and the victim's version, where
relevant to the sentencing decision.
(2) Any prior criminal record of the defendant.
(3) The defendant's social history, including family
relationships, marital status, age, interests and
activities.
(4) The defendant's educational background.
(5) The defendant's employment status and
capabilities.
(6) Residence history of the defendant.
(7) Financial status of defendant.
(8) Health of the defendant.
(9) The defendant's sense of values and outlook on
life in general.
(10) (e) Information which may be included in the
presentence report. (1) Content. The presentence
report may include information of a hearsay nature
where the presentence investigator believes that the
information is reliable, and the court may consider
such information. In the trial judge's discretion,
the judge may consider material contained in the
presentence report which would have been inadmissible
under the rules of evidence applicable at a trial.
However, while not all information in a presentence
report need be in the form of sworn testimony and be
admissible in trial, conjecture and speculation should
not be included in the presentence report.
(see Appendix 80 for full text).
Idaho Code Section 19-5306(1)(b) & (3) provides, in
pertinent part:
(1) Upon request, each victim of a felony offense
shall be:
(b) Consulted by the presentence investigator during
preparation of the presentence report and _ have
included in that report a statement of the impact
which the defendant's criminal conduct has had upon
the victim;...
(3) The provisions of this section shall apply
equally to the immediate families of homicide victims
or immediate families of victims of such youthful age
Or incapacity as precludes them from exercising these
rights personally.
28 U.S.C. Section 1257(a) provides in pertinent part:
Final judgments or decrees rendered by the highest
court of the state in which a decision could be had,
may be reviewed by the Supreme Court by Writ of
Certiorari...where the validity of a statute of any
state is drawn in question on the ground of it being
repugnant to the Constitution, Treaties, or the Laws
of the United States, or where any title, right,
privilege, or immunity is specially set up or claimed
under the Constitution or the Treavcies or Statutes of,
Or any commission held or authority exercised under,
the United States.
STATEMENT OF THE CASE
The Respondent, Jaimi Dean Charboneau, was convicted
of the first degree murder of his former wife, Marilyn Arbaugh.
Prior to sentencing and pursuant to I.C. § 19-2515 and
§ 19-2516 and Idaho Criminai Rule 32, a presentence
investigation was conducted and the resulting report was
provided to the Court. At the sentencing hearing, the Trial
Judge admitted into evidence a letter from the victim's
father. The letter, however, was not part of the presentence
report. It set forth the family members’ opinions and
characterizations of the crime and of the defendant. [It also
noted the emotional impact of the crime on the victim's
daughter, as well as describing the good character of the
victim, The letter went on to state:
{S]he walked past him in the barn and he
shot her in the back several times; he could
have changed his mind at this point but he
didn't. He walked up to her, yelling at
her, and shot her several more times in the
chest. (Appendix 86)
The Trial Judge found that:
..-After firing the first volly (sic) of
shots the victim,...could have been
saved... At that moment the defendant,
Jaimi Charboneau had a choice. He could
have saved the women he professed to love.
However, with at least two minutes to give
thought to the matter, the defendant...chose
to fire additional shots. (Appendix 37)
The Trial Court found the existence of aggravating
circumstances which were not outweighed by the mitigating
circumstance:s; presented, therefore, sentenced the defendant to
death.
On review of Charboneau's sentence and conviction, the
Idaho Supreme Court set aside the death sentence on four
separate grounds, the first being that the letter from the
victim's father (Arbaugh) constituted hearsay evidence which,
pursuant to Idaho statute, should only have been presented
through the presentence report.
Secondly, the Idaho Court viewed the “Arbaugh letter"
and portions of the presentence investigation report as a
Victim Impact Statement. The Court held that the letter and
portions of the presentence report, pursuant to Booth v.
Maryland, 428 U.S. 496 (1987), should not have been admitted
into evidence,
The third reason for vacating Charboneau's death
sentence is that the Trial Court had incorrectly weighed
aggravating and mitigating circumstances, pursuant to Idaho
Stacute, in reaching its decision to impose the death
sentence. I.c. § 19=-2515(c) requires that all mitigating
circumstances be weighed against each of the statutory
aggravating circumstances separately.
The final reason for which the Idaho Court vacated
Charboneau's death sentence was no evidence existed in the
record to support the Trial Judge's Finding that the victim's
life could have been saved after the first volley cf shots.
Since it was unclear whether the Trial Court would have imposed
the death penalty without having reached such a conclusion, the
sentence was vacated and remanded. *
SUMMARY OF ARGUMENT
I. LACK OF JURISDICTION
Charboneau respectfully submits that The State of
Idaho v. Jaimi Dean Charboneau is not an appropriate case for
review by the United States Supreme Court. This is true for
two reasons, the first being lack of jurisdiction. The United
States Constitution has conferred upon the Court the power to
determine actual controversy arising between adverse
litigants, Traditionally, the Court has therefore refrained
from rendering advisory opinions. A decision rendered in this
case would be a departure from that tradition for the following
reasons:
First, the decision to be reviewed is the Idaho
Supreme Court's reversal of the death sentence imposed upon
Charboneau and aeeremand of the case for resentencing.
Regardless of the Court's treatment of the issues raised by the
State, the Idaho decision will remain unchanged because only
three of the four separate grounds for the remand are before
this Court. The Idaho Court found that the actual record did
not support a crucial Finding of Fact made by the Trial Judge
and therefore remanded the case. This issue has not been
raised to this Court, and therefore, the Idaho Court's decision
to remand will remain unaltered.
Even without the fourth justification for reversal,
the Court lacks jurisdiction because there eyvists adequate and
independent State law grounds for the Idaho Court's remand
decision. Of the three issues presented for review, only the
first relating to Booth v. Maryland, supra, primarily addresses
a question of Federal law. The second issue, relating to the
use of hearsay evidence in capital sentencing proceedings, is
expressly couched in terms of interpretation of the statutes of
the State of Idaho, as is the third issue relating to the
process of weighing mitigating circumstances against
aggravating circumstances in death penalty cases. Therefore,
there exists adequate and independent State grounds for the
Idaho decision, and this Court is without jurisdiction.
II. NO CONFLICT ON FEDERAL LAW ISSUES
Charboneau further respectfully urges the Court to
deny the requested review because there are no “special” and
"important" reasons for granting such review. The Idaho
Court's decision is not in conflict with other State Courts,
Federal Courts, or the United States Constitution. The Idaho
Court's determination that the "Arbaugh letter" is an
inadmissible Victim Impact Statement is entirely consistent
with this Court's pronouncement in Booth v. Maryland, supra.
Likewise, no conflict exists as to the {idaho ruling
that hearsay evidence must be contained in the statutoriiy
recognized presentence report in order to be introduced in a
capital sentencing hearing. The decision merely interprets the
Idaho statutory scheme which specifically provides for the use
of hearsay evidence in capital sentencing hearings. The Idaho
Statutes provide that hearsay evidence that has been screened
for reliability and which has been included in a presentence
investigation report can pve considered by the sentencing judge.
Nor does the third issue represent a conflict which
would justify a review by this Court. This issue relates to
the Idaho Court's interpretation of the Idaho Statute that
regulates imposition of the death sentence. The Opinion states
that when statutory aggravating circumstances are found, each
aggravating circumstance must be weighed against any mitigating
circumstances presented. If any one of the aggravating
circumstances are found to outweigh the mitigating
circumstances, then the death sentence can be imposed.
(Appendix 42) The State has cited no authority conflicting
with the Idaho decision on this issue or on either of the other
two, and therefore, none of the “special” and “important®
reasons for review referred to in Supreme Court Rule 17, exist.
ARGUMENT
I. LACK OF JURISDICTION
The Court lacks jurisdiction to review the present
case, and Charboneau therefore respectfully urges the Court to
refrain from doing do so. Charboneau believes that the Court
lacks jurisdiction because any decision rendered by the Court
in this case would be merely advisory. Traditionally, the
Court has recognized that judicial power conferred by the
Constitution is power toc determine actual controversies arising
between adverse litigants and that the Court should not give
opinions in the nature of advice. Muskrat v. United States,
nay G.8. 346 (1911). A test for the existence of an advisory
opinion was stated in Herb v. Pitcairn, 324 U.S. 117 (1945).
We are not permitted to render an advisory
opinion, and if the same judgment would be
rendered by the State Court after we
corrected its views of Federal Law, our
review could amount to nothing more than an
advisory opinion.
Id. at 126.
On the issues presented in the State's Petition, theré
is no actual controversy, there are no adverse litigants, and
an opinion rendered by this Court would be merely advisory.
This is true because the Idaho Supreme Court vacated Jaimi Dean
Charboneau's death sentence and remanded it for resentencing on
four separate grounds. The State of Idaho brings before the
Court but three of those grounds. As the fourth ground, the
Idaho Court vacated Charboneau's death sentence because there
was no evidence in the record to support the Trial Judge's
Finding that the first volley of shots was not fatal to the
victim and that her life could have been saved with medical
attention prior to the second volley of shots. (Appendix 37-38)
The unsupported Finding of the Trial Judge
necessitated a remand for resentencing because it was unclear
from the Findings whether the Trial Court would have imposed
the death penalty without having concluded that the first
volley of shots was not fatal. This imperfection in the Trial
Court's reasoning represented a substantial justification for
vacation and remand and was totally independent from any
Federal law issues.
This case involves no adversary litigants. It has
been remanded for resentencing, and a substantial basis for
that decision has not been challenged. The parties before the
Court at this time are actually the State of Idaho vs. “a
decision of the Idaho Supreme Court" and consequently, this
Court's decision will have no effect on the fate of Jaimi Dean
Charboneau,
Since this fourth issue is not before the Court for
review, the Idaho Court's Order will stand regardless of this
Court's decision on Federal issues, thereby rendering said
Opinion advisory.
In addition to the fourth ground for reversal being
omitted from this proceeding, a decision rendered in this case
would be rendered advisory because there are adequate and
independent State grounds for the Idaho Court's decision to
vacate and remand. The only issue before the Court, which
rests squarely on the Idaho Court's determination of the
Federal law, is the first issue raised by the State dealing
with Booth v. Maryland, supra, and Victim Impact Statements.
The other issues raised in this proceeding are issues of
construction of State statutes and not of Federal law.
In determining whether the Idaho Court's reference to
State law constitutes an adequate and independent State ground
for its decision, the Court should not look beyond the Opinion
itself. Michigan v. Long, 463 U.S. 1032 (1983). Beginning on
Page 31 of the Idaho Court's Opinion (Appendix 31), the Idaho
Court addresses the issue of whether hearsay, in the form of a
letter from the victim's father should have been admitted into
evidence at the sentencing hearing.
In its discussion, the Idaho Court resorts exclusively
to an analysis of the Idaho sentencing statutes. The Idaho
Court reasoned’ that TC. § 19-2516 requires that’ the
circumstances in aggravation or mitigation of punishment must
be presented by live testimony, except as provided in §
19-2515. I.C. § 19-2515(d) provides for a _ presentence
investigation in all death penalty cases. The Idaho Court went
on to interpret said statute as allowing the Sta.e and the
defendant to present all relevant evidence in aggravation and
mitigation at the sentencing hearing, that would otherwise be
admissible,
The Court also interpreted the death penalty statutes
in light of Idaho Criminal Rule 32(e):l1) and Idaho Rule of
Evidence 101l(e)(3). Rule 32(e)(1) allows a presentence report
to contain hearsay only where the presentence investigator
believes that the information is reliable, Idaho Rule of
Evidence 10l(e)(3) provides that the Idaho Rules of Evidence do
not apply to sentencing hearings. (Appendix 33) The Idaho
Opinion shows a concerted effort to construe the Idaho Statutes
consistently with one another, while at the same time providing
for the admission of reliable hearsay at the sentencing hearing.
There is no citation of Federal law in this section of
the Opinion. Given the Idaho Court's overriding concern with
construction of Idaho Statutes and Criminal Rules, it is
obvious that this part of the decision addresses the manner in
which reliable hearsay is to be presented at a capital
sentencing hearing. It does not address the Federal law issue
of whether hearsay evidence is admissible. Since State Courts
are the ultimate expositors of State Law, Mullaney v. Wilbur,
421 U.S. 684 (1975), and since no Federal issue was addressed,
the Court lacks jurisdiction to review this claim.
Likewise, the "interpretation of state statutes
argument* applies to the Idaho Court's determination that
mitigating circumstances must be weighed against each statutory
aggravating circumstance individually prior to imposition of
the death penalty. Beginning on page 41 of it's Opinion
(Appendix 41), the Idaho Court cited State v. Thompson, 101
Idaho 430, 614 P.2d 970 (1980), for the proposition that
criminal statutes must be strictly construed. The Idaho Court
then went on to interpret the plain meaning of the words
contained in the Idaho death penalty’ statute, I.C. 5
19-2515(c). The Court stated:
I.C. § 19-2515(c) refers to ‘mitigating
circumstances*” that are to be weighed
10
against "any aggravating circumstance
found". If the legislature had intended the
mitigating circumstances to be weighed
against all the aggravating circumstances
found as a group, it would have referred to
"the aggravating circumstances found". The
plain meaning of the statute dictates our
conclusion on this issue. (Appendix 42)
The quotation set out above evidences a "plain
statement" that the Court's decision rests upon the adequate
and independent state ground of interpretation of the wording
of a state statute. Consequently, the Court is without
jurisdiction on this issue,
The Petitioner argues that, although the Idaho Opinion
relating to the ‘hearsay issue* and the ‘weighing of
circumstances issue" refers only to Idaho law, the Idaho Court
necessarily decided these two issues based on Federal law
because the statutory constructions were interwoven with
Federal concerns. It is true that in State v. Osborne, 631
P.2d 187 (Idaho 1981), the Idano Court ceéecognized that the
Idaho legislature enacted [Idaho's present death penalty
statutes in response to the United States Supreme Court's
mandate that:
{t]he sentencing authority must be given
specific and detailed guidance to assist
them in deciding whether to impose a death
penalty in order to assure that the death
penalty will not be imposed in an arbitrary
Or capricious manner. Id. at 191.
However, this recognition of legislative purpose does not
transform every interpretation of the legislative enactment
into a determination of Federal law. The Idaho Court clearly
recognized that the Idaho legislature had attempted to give
specific and detailed guidance in death penalty cases, and in
the present case, the Idaho Court proceeded to interpret the
guidance that had been given. No question of Federal law was
addressed,
ll
II. NO CONFLICT ON FEDERAL LAW ISSUES
Even if the Court finds that there is a jurisdictional
basis on which to review this case, Charboneau urges the Court
to deny the requested review because there are no “special® and
*important®” reasons for granting said review. More
specifically, the Idaho Court's decision is not in conflict
with the decisions of other State Courts, Federal Courts, or
the United States Constitution.
A. ARBAUGH LETTER AND BOOTH V. MARYLAND
The Idaho Court's decision that the “Arbaugh letter"
was an inadmissible "Victim Impact Statement" pursuant to Booth
v. Maryland, supra, is consistent with this Court's Opinion in
that case. In South Carolina v. Gathers, 109 S.Ct. 2207
(1989), the Court described Booth as follows:
We address the question whether use of
‘victim impact statements’ in capital
sentencing proceedings violated this
principal that a sentence of death must be
related to the morai culpability of the
defendant. We held that such statements
introduced factors that might be ‘wholly
unrelated to the blameworthiness of a
particular defendant’. (citation omitted)
The statements placed before the jury in
Booth included descriptions of the victim's
personal characteristics, statements
concerning the emotional impact of the crime
on the victim's family, and the family
members’ opinions about the crime and the
defendant. Id. at 2210.
The hearsay statement addressed in Gathers concerned the
personal characteristics of the victim. The Court held that
said statement should not have been made part of the sentencing
considerations.
In the present case, the lengthy letter written by the
victim's father (Appendix 84) sets forth the family members'
opinions and characterizations of the crime and the defendant.
Por that reason, the Idaho Court held that the letter should
12
not have been considered by the Trial Court in sentencing
(Appendix 33-36).
The Idaho Court's reasoning and decision are not in
conflict with the Court's pronouncements in either Booth or
Gathers; nor are they in conflict with Lockett v. Ohio, 438
U.S. 586 (1978), as inferred in the Petition.
The Lockett case dealt with a state statute which
limited the range of mitigating circumstances which could be
considered by the sentencing court. The Court held that the
sentencer in capital cases must be allowed to give independent
mitigating weight to “aspects of the defendant's character and
record and to circumstances of the offense proffered in
mitigation". Id. at 605. The case did not involve issues of
Victim Impact Statements.
Furthermore, the Court's Opinion in Lockett actually
tends to support the Idaho Court's decision that the Booth
rule, at least in Idaho, will apply, regardless of whether the
capital sentencer was a judge or a jury. The Idaho Court held
that since the risk of arbitrary and capricious decisions
exists, regardless of whether the sentence is rendered by a
judge or a jury, the Booth rule would apply to death penalty
sentences rendered by Idaho judges. The Court in Lockett also
recognized that "this qualitative difference between death and
other penalties calls for a greater degree of reliability when
the death sentence is imposed". Id. at 604.
The Petitioner attacks the Idaho Court's ruling on the
Booth issue on grounds that the Idaho Court impermissibly
applied a “reversible error per se" approach to the admission
of the Victim Impact Statement. In support of this
proposition, Petitioner cites Maynard v. Cartwright, 108 S.Ct.
1853 (1988). In Maynard, a death penalty was overturned by a
state appeals court because one of two aggravating
circumstances found by the jury had been struck down. The
13
State argued that since one aggravating circumstance would
sustain the sentence, the United States Supreme Court should
not allow the sentence to be automatically reversed. The Court
held that where State law did not provide for curing the
sentencer's consideration of an invalid aggravating
circumstance, the United States Supreme Court would not
interfere. This Court had no problem with the “reversible
error per se" approach in Maynard. Therefore, the Idaho
decision does not conflict with Federal law. -
The Petitioner goes on to infer that the consideration °
of the "Arbaugh letter" was harmless error and that the Idaho
Supreme Court concluded that the Trial Court's Findings were
not based upon said letter. Said inference is simply not
true. On this issue, the Idaho Court stated as follcws:
We are not dissuaded from our conclusion on
this issue by the statement of the Trial
Court in the written sentencing findings
that he hac “endeavored to avoid anything
that might be hearsay, not absolutely
pertinent or not totally supported by the
evidence" (citation omitted)...Even a well
intentioned and conscientious effort by the
Trial Court to avoid considering the hearsay
contained in the letter does not suffice.
(Appendix 33)
In fact, Charboneau submits that the Trial Judge did
rely on statements contained in the “Arbaugh letter". Please
note the similarity between the statements of the victim's
father:
{S]he walked past him in the barn and he
shot her in the back several times; he could
have changed his mind at this point but he
didn't. He walked up to her, yelling at
her, and shot her several more times in the
chest. (Appendix 86)
and the unsupported Finding of the Trial Court that:
...after firing the first volly (sic) of
shots the victim Marilyn Arbaugh was wounded
but her life could have been saved...At that
moment the defendant, Jaimi Charboneau had a
choice. He could have saved the women he
professed to love, However...Jaimi Dean
Charboneau, chose to fire additional shots
into the wounded and helpless body of
Marilyn Arbaugh. (Appendix 37 )
14
Evidence that the victim's life could have been saved
after the first volley of shots appears in the record in one
Place only. That place is the letter of the victim's father
(Appendix 84 - 88).
The Idaho Court's decision relating to Booth, supra,
is consistent with Federal law. Furthermore, the Trial Court's
reliance on assertions contained in the ‘"“‘Arbaugh letter"
demonstrates the necessity for application of the Booth rule in
capital sentencings that are conducted by a judge.
B. HEARSAY EVIDENCE IN CAPITAL SENTENCING
The Idaho Court ruling that hearsay evidence in
capital sentencing proceedings is admissible if made part of a
presentence report is consistent with Federal law and with the
United State's cases cited by Petitioners. The Idaho approach
provides for a wide variety of informational sources in order
that the sentencer can gain a realistic view of the defendant's
character, propensities and culpability. It provides for a
presentence investigation, conducted by trained probation
officers, I.C. § 2515(d). These officers provide the sentencer
with a report of their investigation which can be considered at
the sentencing hearing, I.C. § 2516 (Appendix 31-33). Hearsay
evidence can be presented at the sentencing hearing through the
presentence report. The investigator however, is required to
screen said hearsay evidence for reliability prior to
including it in his report, I.C.R. 32(e)(1).
In United States v. Grayson, 438 U.S. 41 (1978), the
Court recognized the importance and utility in using trained
probation officers to conduct presentence investigations and to
submit investigative reports to the sentencing judge (Grayson
did not address issues of hearsay).
In Williams v. New York, 337 U.S. 241 (1949), the
15
Court confirmed the appropriateness of the sentencing judge's
reliance on evidence presented at trial, and.on a wide range of
hearsay information contained in the presentence report. The
Court held that:
Under the practice of individualizing
punishments, investigational technics have
been given an important role. Probation
workers making reports of their
investigations...have been given a high
value by conscientious judges who want to
sentence persons on the best available
information..the probation report draws on
information concerning every aspect of a
defendant's life. Id. at 250.
In Willians v. state, 358 U.S. 576 (1959), the
defendant objected to the State's attorney making a _ sworn
statement to the Court relating the details of the “etitioner's
past criminal record. The defendant objected to the statement
as being contrary to an Oklahoma statute which required that
information be entered by the testimony of witnesses examined
in open court. The Court held that the defendant waived his
right to a formal hearing pursuant to the Oklahoma statute
because he failed to request it.
Green v. Georgia, 442 U.S. 95 (1979), also cited by
the Petitioner, was found not to involve the exclusion of
relevant hearsay. This Court held that the excluded testimony
was highly relevant to a critical issue of punishment. The
evidence was corroborated, and was later used to procure a
conviction of a co-defendant. Additionally, the statement was
against interest and constituted a confession to a crime, and
therefore, the statement was not hearsay under Georgia law.
Under these circumstances, the exclusion of the statement
constituted a violation of the defendant's right to Due Process,
Godfrey v. Georgia, 446 U.S. 420 (1980), likewise
involved no hearsay issues. However, the Court in that case
did recognize that if the State authorizes capital punishment,
it must tailor and apply its law in a way that channels the
16
sentencer's discretion and which will make the sentencing
process rationally reviewable. This is what the Idaho
Legislature and the Idaho Supreme Court has attempted to do.
The propriety of acceptance of hearsay evidence at a
sentencing hearing was not addressed by this Court in United
States v. Tucker, 404 U.S. 443 (1972), nor was it addressed in
Roberts v. United States, 445 U.S. 552 (1980).
The Petitioner has cited absolutely no United States
authority which conflicts with the Idaho Court's interpretation
of the Idaho death penalty sentencing statutes. Therefore,
Charboneau urges the Court to decline review of this matter.
C. WEIGHING OF MITIGATING AND AGGRAVATING CIRCUMSTANCES
Again, Petitioner fails to cite even one decision of
this Court which is in conflict with the Idaho Court's
interpretation of I.C. § 19-2515(c). It is true that the Idaho
legislature enacted the present death penalty statutes in
response to relevant Opinions of this Court. However, all
states have discretion to structure their system of death
sentence imposition in their own way. Cabana v. Bullock, _474
U.S. 376 (1986). The Idaho legislature has complied with the
mandate of this Court and has structured a system by which
mitigating circumstances must be weighed against each
aggravating circumstance individually prior to imposition of
the death sentence. I.C. § 19-2515(c), (Appendix 42).
The Idano Court's interpretation and application of
the Idaho death sentence statute does not conflict with the
ruling of this Court. The fact that the Petitioner speculates
that it will be difficult to weigh mitigating circumstances
against each aggravating circumstance does not constitute a
"special and important" reason for the Court to review this
decision.
17
CONCLUSION
For the above stated reasons, Jaimi Dean Charboneau
respectfully requests that the Court deny the State's Petition
for Writ of Certiorari.
RESPECTFULLY SUBMITTED ThisAY day of August, i989.
LLER
Law Offices
Box 30
Jerome, ID 83338
(208) 324-8193
18
APP. 1
APPENDIX
1989 Opinion No. _44.
IN THE SUPREME COURT OF THE STATE OF IDAHO
Nos. 12329 and 16741
THE STATE OF IDAHO,
Plaintiff-Respondent. Boise, November 1988 Term
v. Filed: April 4, 1989
JAIMI DEAN CHARBONEAD, Frederick C. Lyon, Clerk
Defendant-Appeliant,
ee ee ee Ne ee ee ee ee ee
Appeal from the district court of the Fifth Judicial District
of the State of Idaho, in and for the County of Jerome. Honorable
Phillip M. Becker, District Judge.
Review of death sentence and appeals from conviction of first
degree murder and from denials of applications for post-conviction
relief. Conviction affirmed; sentence vacated; remanded for
resentencing.
Greg J. Fuller, of Jerome, Idaho, attorney for
appellant.
Hon. Jim Jones, Attorney General; Lynn E. Thomas,
Solicitor General, of Boise, Idaho, attorneys for
respondent. Mr. Thomas argued.
JOHNSON, J.
This is a first degree murder case that comes to us for review
of a death sentence pursuant to I.C. § 19-2827 and on appeal from
= APP. 2
the conviction and from denial of applications for post-conviction
relief. We affirm the conviction but vacate the sentence and
remand the case to the trial court for resentencing.
L
THE BACKGROUND AND PRIOR PROCEEDINGS.
Jaimi Dean Charboneau (Jaimi) was convicted of the first
degree murder of his former wife, Marilyn Arbaugh (Marilyn). Jaimi
was sentenced to death for this crime. The trial court twice
denied post-conviction relief.
Jaimi and Marilyn lived together for approximately two years
before they were married in June 1983. Marilyn had two teenage
daughters, Tiffnie and Tira. The relationship between Jaimi and
Marilyn was stormy. There is evidence that Jaimi physically abused
Marilyn. In August 1983 Marilyn shot Jaimi with a .22 caliber
pistol during a dispute. An aggravated battery charge was filed
against Marilyn but was subsequently dismissed on the motion of the
prosecuting attorney. In the spring of 1984 Marilyn filed for
divorce. A default judgment was granted on June 13, 1984. There
is evidence that Jaimi and Marilyn continued to see each other and
were sometimes intimate after the divorce.
On June 21, 1984, Jaimi went to the cafe where Marilyn worked.
They left in Marilyn’s car. There is some dispute whether Marilyn
went with Jaimi voluntarily. The next day Marilyn reported to the
police that Jaimi had kidnapped and raped her and had stolen her
car. There is evidence that Jaimi travelled to Nevada after June
21. ##The burned remains of Marilyn’s car were found in southern
Idaho in late June 1984. On June 25, 1984, Jaimi was charged in
Jerome County, Idaho with first degree kidnapping of Marilyn and
grand theft of her car.
On June 28, 1984, Jaimi purchased a .22 caliber rifle froma
hardware store in Gooding, Idaho. About mid-morning on Sunday,
July 1, 1984, Marilyn returned to her residence on a ranch near
Jerome, after being gone since the evening before. Some time after
11:00 o’clock that morning Marilyn went out to check some horses
in a corral near her home. Shortly after that Marilyn’s daughter
Tiffnie heard shots outside, grabbed Marilyn’s .22 pistol, and went
-2-
to see what had happened. She found her mother sitting on the
ground in the barn with blood on her. Jaimi was standing close to
Marilyn with a .22 caliber rifle pointed at Marilyn. Tiffnie asked
Jaimi to leave and told him she was going to call the police.
Jaimi told Tiffnie that he would take Marilyn to the doctor. Both
Marilyn and Jaimi told Tiffnie to leave.
At 11:38 that morning Tiffnie called the Jerome County
Sheriff’s office and said that Jaimi had shot her mother. Tiffnie
then told her sister Tira about the shooting, and they both got
dressed. They heard more shots and ran outside where they hid
behind a sheep wagon and called to their mother. Tiffnie had her
mother’s .22 caliber pistol with her, and it accidentally
discharged behind her. She ran into the house, hid the gun,
returned to the sheep wagon, and then ran to the barn. Tira
followed close behind. Marilyn was lying on her back with her arms
over her head. The girls ran back to call for an ambulance. At
11:42 a.m. Tira telephoned for assistance and reached the Jerome
County Sheriff’s office. She told them to get an ambulance and
that her mother was dying. When the sheriff’s deputies arrived at
the scene, they found Marilyn’s body in the barn and located Jaimi
in a field near the barn with a .22 caliber rifle lying nearby.
Jaimi was arrested and charged with first degree murder. At the
time of his arrest, Jaimi acknowledged that he had shot Marilyn,
although he stated that he did so because she was going to shoot
hin.
The Jerome County public defender (the public defender) was
appointed to represent Jaimi on the murder, kidnapping, and grand
theft charges. Prior to a preliminary hearing on these charges,
Jaimi’s mother employed a private defense attorney (the defense
attorney) to represent him. Following the preliminary hearing,
Jaimi was bound over for trial on all three charges.
Jaimi told the defense attorney that he had not kidnapped or
raped Marilyn and that he had not stolen her car. He stated that
he and Marilyn had maintained a close and intimate relationship
after their divorce, that she had been with him voluntarily on June
21 and 22, 1984, and that they had had consensual sexual
intercourse on that occasion. He said that he had purchased the
.22 caliber rifle as a present for Tira and on June 28, 1984, had
taken it with him to the ranch-where Marilyn and her daughters
lived. He told the defense attorney that he and Marilyn had
reconciled and were going to live together again, but that she
wanted him to stay in the barn until she broke the news to her
daughters.” He said that he and Marilyn had sexual relations on the
evening of June 30, 1984, and that she then left the ranch and did
not return until the next morning.
Initially, Jaimi told the defense attorney that on the morning
of July 1, 1984, Marilyn had taken the .22 caliber rifle he had
purchased for Tira into the house to remove a scope sight from it.
He said that when she returned to the barn she loaded the rifle,
pointed it at Jaimi, and pulled the trigger, but that it did not
fire. Jaimi told the defense attorney that he grabbed the rifle
from Marilyn and pulled the trigger several times while the rifle
was on his hip and Marilyn was running away. He said that he
closed his eyes while shcoting. He said that after the shooting
he took the rifle and fled to the nearby field.
Later, but prior to August 22, 1984, Jaimi told the defense
attorney that after he fired the shots at Marilyn, instead of
running directly out into the field, he had stayed around the end
of the barn. He told the defense attorney that he heard Tiffnie
talking to her mother and had looked around the corner. He said
he saw Tiffnie holding a pistol in both hands pointed at Marilyn.
Jaimi said that Tiffnie told Marilyn that Marilyn had screwed up
their lives, ruined Tira’s life, and was ruining Jaimi. He stated
that he saw Tiffnie fire a shot from the pistol and saw Marilyn’s
hair fly up.
The defense attorney contends that based on this second
version of the events of July 1, 1984, he tried to convince the
prosecuting attorney to reinvestigate the crime. On August 23,
1984, he also discussed this version in a telephone conversation
with his niece who was a psychic. Shortly after August 23, 1984,
the defense attorney received a letter from his niece in which she
reported having made contact with Marilyn through clairvoyance.
APP. 5
The letter reported Marilyn’s version of how she was killed. Among
other things, the letter intimated that Marilyn’s daughter had shot
Marilyn after Jaimi had, because she couldn’t stand to see her
mother suffer.
The defense attorney was unable to convince the prosecuting
attorney to dismiss the kidnapping and grand theft charges and to
pursue the “second gun" theory. The defense attorney then filed
a motion to dismiss the charges. At a hearing on this motion, the
defense attorney called Jaimi to testify. The district judge
carefully advised Jaimi that he could not be required to testify
and gave the defense attorney an opportunity to explain fully to
Jaimi his right to remain silent. Jaimi confirmed to the district
judge that he understood that he had the right not to testify and .
that anything he said might be used as evidence against him. Jegimi
was then sworn and testified.
In his testimony in support of the motion to dismiss Jaimi
related fully the events concerning the alleged kidnapping and
theft on June 21 and 22, 1984, as well as the events of July 1,
1984, surrounding Marilyn’s death. He testified that when Marilyn
came to the barn that morning she picked up the .22 caliber rifle
and took it into the house to remove a scope sight that had come
with it. He said that Marilyn told him that she was going to tell
the girls that day that Jaimi was there and would let Tira take the
gun to the gun range and let her sight it in. Jaimi told the court
that when Marilyn came back to the barn she had a handful of
bullets and loaded the rifle. He said that after going out to the
corrals to move some horses, he and Marilyn returned to the barn.
He said he asked Marilyn where she had been all night, and that she
told him he thought she was sleeping with every guy in the valley.
He stated that Marilyn picked up the rifle, pointed it at him, and
told him that he was dead and that no other woman was going to have
him. He said he heard a click, grabbed the barrel of the rifle and
wrestled it away from her. Jaimi testified that Marilyn screamed
for Tiffnie to bring Marilyn’s shotgun to her, and that when-he got
the rifle away from Marilyn, she turned around and ran. He said
that he saw Tiffnie coming from the house, that he had the rifle
APP. 6
at his hip, and that he thought Marilyn might be going to run
around and get another gun. He said that he closed his eyes and
that the gun went off several times. He opened his eyes and
Marilyn was on her knees and bleeding. He said that Marilyn told
Tiffnie to leave and that he told Tiffnie to call an ambulance.
He testified that as he knelt beside Marilyn, Tiffnie came running
toward them with a pistol saying, "I hate both of you guys." He
said that Tiffnie fired the pistol two or three times and that he
ran out of the barn. He stated that when he realized that Tiffnie
was not coming after him he eased back to the barn and heard
Tiffnie talking to her mocher. He testified that he saw Tiffnie
standing above her mother, heard the pistol go off, and saw
Marilyn’s hair fly up.
After the district judge denied the motion to dismiss, the
defense attorney wrote a letter to the deputy attorney general who
had been appointed as a special prosecutor in the case. In this
letter the defense attorney set forth Jaimi’s version of the events
involved in the charges against him. He also sought to have the
special prosecutor arrange for Jaimi to be given a polygraph
examination and to make his own investigation of the charges.
Subsequently, the defense attorney revealed to the special
prosecutor all the evidence and information he had regarding the
case and arranged for Jaimi to be interrogated by an investigator
from the attorney general’s office, without the defense attorney
being present. This interrogation took place and lasted over two
hours. Jaimi divulged a great many more particulars concerning
the alleged kidnapping, theft and murder.
On the motion of defense counsel venue was changed to Ada
County and the three charges were consolidated for trial. The
trial was scheduled to begin in Boise on April 15, 1985. On March
13, 1985, Jaimi indicated that he did not want the defense attorney
to continue to represent him. The trial court allowed the defense
attorney to withdraw and reappointed the public defender. Jaimi
contended that the defense attorney had delegated too much of the
investigation in the case to an investigator whom he described as
“living in some kind of a fantasy world.” Jaimi confirmed that it
APP. 7
had been his desire to testify at the hearing on the motion to
dismiss, that the decision to do so was a joint decision between
him and the defense attorney, and that he agreed that was the best
thing to do. Jaimi said he understood that if a new attorney was
appointed to represent him, the trial would begin on April 15,
1984. He told the trial court that he wanted the trial to begin
on that day. The trial court agreed that the defense attorney
would be allowed to sit at counsel table with the public defender
during the trial.
The trial began as scheduled on April 15, 1985. Before any
evidence was received, the public defender moved to preclude the
prosecution from using in any fashion Jaimi’s statements during
his testimony at the hearing on the motion to dismiss and during
his interrogation by the investigator from the attorney general’s
office. The trial court denied the motion.
At the conclusion of the prosecution’s case, the public
defender moved to dismiss the kidnapping and theft charges on the
ground that the court lacked jurisdiction, since there was no proof
that the crimes occurred in Jerome County. The trial court agreed
and dismissed the charges. The public defender then moved to
strike all of the evidence that had been admitted relating to the
kidnapping and theft cases. The court denied the motion on the
ground that the evidence would have been admissible in the murder
case in any event. The trial court informed the jury that the
charges had been dismissed. The trial then proceeded on the murder
charge.
Jaimi did not testify at the trial. The public defender chose
not to call him. The public defender felt that Jaimi’s testimony
would be “nit picked" by the prosecution, because of the
availability of Jaimi’s version of the events surrounding Marilyn’s
death provided by Jaimi’s testimony at the hearing on the motion
to dismiss, by the defense attorney’s letter to the special
prosecutor, and by Jaimi’s interrogation by the investigator for
the attorney general. The defense presented on Jaimi’s behalf was
designed to convince the jury that Jaimi shot Marilyn but did not
kill her, or, that if he did kill her, he did not intend to. The
defense argued that the killing did not amount to first degree
murder.
Among the instructions given to the jury by the trial court
was one concerning lesser included offenses. This instruction
included a provision that the jury “should consider the included
offenses only in the event the state has failed to convince you
beyond a reasonable doubt of the guilt of the accused with respect
to the crime charged."
Following the jury’s verdict that Jaimi was guilty of first
degree murder, a presentence report was prepared and the trial
court conducted sentencing hearings. At the time of these
hearings, Jaimi was represented by another private defense attorney
(the second defense attorney). At one of these sentencing hearings
a letter written to the trial judge by Marilyn’s father was
admitted in conjunction with the father’s testimony. This letter
described the relationship between Jaimi and Marilyn, including
Jaimi’s physical abuse of Marilyn and the circumstances surrounding
Marilyn’s shooting Jaimi in August 1983. The letter also discussed
Jaimi’s violent nature, his harassment of the Arbaugh family after
Marilyn’s death, the lack of any likelihood that Jaimi could be
rehabilitated, and hearsay statements that were adverse to Jaimi.
The letter had not been submitted with the presentence report, but
the presentence report contained some of the same information in
the form of statements from Marilyn’s parents. Mr. Arbaugh adopted
the letter as part of his testimony at the sentencing hearing. The
trial court admitted the letter and added, “taking into
consideration that probably great portions of it may be hearsay and
stimulated by some prejudice and sympathy, and I will take that
into consideration when reviewing it." The prosecutor asked Mr.
Arbaugh the following question: “Mr. Arbaugh, is there anything
else you would like to say to the Court as to what you think ought
to happen to Mr. Charboneau in view of the damage caused to your
family by his actions?” In response, Arbaugh stated:
Well, I think anyone that’s been around him that,
the last two years that he was loose, knows if he
was ever on the street again that the Arbaugh
family would be going through the same thing again.
He’s vowed to destroy the Arbaugh family, and you
see what he done to start with. There’s no doubt
in my mind that he wouldn’t try to kill the rest of
us.
He gave his opinion that Jaimi should be put to death or given a
fixed life sentence. The second defense attorney was given an
opportunity to cross-examine Mr. Arbaugh.
Following the sentencing hearings, the trial court made
findings concerning aggravation and mitigation and sentenced Jaimi
to death. Among the facts found by the trial court was that at the
time Tiffnie went to the barn after she heard the first shots fired
on July 1, 1984, Marilyn’s lite “probably could have been saved if
she had received the necessary medical attention." The trial court
also found that within not less than two minutes after leaving the
barn Tiffnie heard more shots. The trial court concluded:
That after firing the first volly (sic) of shots
the victim Marilyn Arbaugh was wounded but her life
could have been saved if she had received necessary
medical attention. At that moment the defendant, 5
Jaimi Charboneau had a choice. He could have saved
the woman he professed to love. However, with at
least two minutes to give thought to the matter,
the defendant, Jaimi Dean Charboneau, chose to fire
additional shots into the wounded and helpless body
of Marilyn Arbaugh. It appears from the facts that
Jaimi Dean Charboneau’ acted _ intentionally,
methodically and violently while he erased from the
face of this earth the life of a human being.
The trial court found “beyond a reasonable doubt that the facts
establish the statutory aggravating circumstances set forth in
Idaho Code Section 19-2515 (g)(5) and 19-2515 (g)(6)." The trial
court was “unable to find any mitigating circumstances which would
overcome or outweigh the aggravating circumstances."
The second defense attorney filed an application for post
conviction relief, including claims of ineffective assistance of
counsel. Following a hearing on this application, the trial court
denied the post conviction relief.
APP. 10
Following the appointment of the second defense attorney to
become a district judge, he was allowed to withdraw as Jaimi’s
attorney. The trial court then appointed another attorney (the
segond public defender) to represent Jaimi. The second public
defender filed another application for post-conviction relief
alleging, among other things, newly discovered evidence relating
to ineffective assistance of counsel. The hearing on this
application dealt with a claim that the defense attorney had relied
on “supernatural, clairvoyant phenomena to dictate his strategy in
defending Jaimi." The trial court found that the letter the
defense attorney had received from his niece shortly after
August 23, 1984, did not influence the manner in which the defense
attorney defended the case. The trial court denied post-conviction
relief.
This Court has before it the mandatory review of Jaimi’s death
sentence, together with appeals from his conviction and from the
denials of post-conviction relief. There are a plethora of issues
involved in this case. We will address each of them in turn.
7]
DID CHARBONEAU RECEIVE EFFECTIVE ASSISTANCE
OF COUNSEL?
A. The standards.
1. Federal.
This Court has recently restated the test for determining
whether a defendant has been denied effective assistance of counsel
under the Constitution of the United States: "First, a claimant
must’ prove that counsel’s performance was deficient. Second, a
claimant must show that this deficient performance prejudiced his
or her case. [Citing Strickland vy. Washington, 466 U.S. 668, 680,
104 S.Ct. 2052, 2064, 80 L.Ed. 674, 686 (1984)]}" Aragon v. State,
114 Idaho 758, ___, 760 P.2d 1174, 1176 (1988).
In Aragon this Court also pointed out that “there is a strong
presumption that counsel’s performance falls within the ‘wide range
of professional assistance,’" and that "the defendant bears tne
- 10 -
ee wee:
APP. il
burden of proof to show that ‘counsel’s representation fell below
an objective standard of reasonableness.’" Id. at __. Unless
prejudice is presumed, “the defendant must affirmatively prove
prejudice." Jd. at __—.~=o Prejudice is presumed only in cases such
as “where the defendant is denied counsel altogether, or where
counsel represents conflicting interests." Jd. at.
2. State.
In Aragon this Court cited Gibson v. State, 110 Idaho
631, 635, 718 P. 2d 283, 287 (1986) for the proposition that "‘the
Idaho Constitution potentially can be read to afford a broader
right to effective counsel than does the federal Constitution.’"
The Court then opined:
To date that has not taken place. However, as
noted in Gibson, we have not yet been -~required to
define the differences between the rights afforded
by federal and state constitutions. [Citation
omitted.}] Nor are we required to do so here. Our
review of the record persuades us that the district
court did not err in concluding that Aragon failed
to establish that counsel’s conduct contributed to
the conviction.
114 Idaho at , 760 P..2da at 1177.
From Aragon we are bound to conclude that it remains the
burden of one claiming ineffective assistance of counsel under the
Idaho Constitution to prove that “counsel’s conduct contributed to
the conviction."
The starting point in evaluating counsel’s conduct under
the state constitution remains the American Bar Association’s
standards entitled "The Defense Function." (The ABA standards).
Aragon, 114 Idaho at __, 760 P.2d at 1177.
B. The issues.
i. Jaimi’s testimony at the motion to dismiss hearing.
Reviewing Jaimi’s testimony at the hearing on the motion
to dismiss does not convince us that this testimony proves that he
was denied effective assistance of counsel. While any of us in
hindsight might conclude that Jaimi should not have testified at
-ii1-
APP. 12
the hearing and given the prosecution five months to investigate
the story he told, looking at the case as a whole, we cannot say
that Jaimi has proved that the reliability of the result at trial
would have been different if he had not testified at the hearing.
At the hearing Jaimi testified that Tiffnie had shot Marilyn
with Marilyn’s pistol after Jaimi had left the barn. Jaimi has
continued to assert this version even after his conviction and even
after his sentencing. Presumably this is the version that he would
have told, if he had testified at trial. It was Jaimi’s choice
whether to testify at trial. The public defender advised him not
to, and Jaimi accepted this advice. We can only speculate whether
his testimony would have been impeached and whether the jury would
have believed his testimony. It is Jaimi’s burden to prove that
the reliability of the result has been affected because he
testified at the hearing on the motion to dismiss. We are not
convinced that the celiability of the result was affected.
The premise of the claim of ineffective assistance of counsel
with regard to Jaimi’s pretrial testimony is that the defense
attorney placed Jaimi on the stand without any legitimate reason
or purpose. While it may not have been the game plan that other
attorneys would have followed, we may not second guess counsel’s
strategic and tactical choices. Aragon, 114 Idaho at ___, 760 P.2da
at 1177. The defense attorney testified in conjunction with the
post-conviction relief proceedings that he knew the murder case was
going to trial. He said that his objective in having Jaimi
testify at the hearing on the motion to dismiss was to “embarrass
the prosecutor into looking to the true facts" of the kidnapping
and grand theft cases. The defense attorney disavowed any
anticipation that the murder charge would be dismissed. Despite
this stated lack of anticipation during the hearing on the motion
to dismiss, the defense attorney questioned Jaimi in detail about
the -events leading to Marilyn’s death on July 1, 1984. He also
argued to the district judge that the murder charge should be
dismissed on the ground that there was not sufficient evidence
submitted at the preliminary hearing to support a finding of
probable cause. While this inconsistency is troubling to us, we
- 12 -
~ i
APP. 13
are unable to conclude that the defense attorney failed to render
effective assistance of counsel to Jaimi concerning the pretrial
testimony. ;
When confronted with the defense of serious felony charges
such as those in this case, defense counsel may have to rely on
creative and sometimes risky tactics to secure the best possible
result for a defendant. We are not prepared to say that the
decision to have a defendant testify in a pretrial proceeding is
sufficient to indicate ineffective assistance of counsel. We find
nothing in the American Bar Association’s standards relating to
“The Defense Function" that would indicate a deficiency of the
defense attorney in calling Jaimi as a witness at the hearing on
the motion to dismiss.
Three experienced and respected criminal defense attorneys
testified at the first post-conviction proceeding that it was not
competent representation for the defense attorney to have called
Jaimi as a witness at the hearing on the motion to dismiss. These
attorneys also testified that other actions of the defense attorney
constituted incompetent representation. While we are respectful
of the opinions of these attorneys, it is for us to determine in
each case whether the constitutional mandate of effective
assistance of counsel has been fulfilled. The question is one of
law and not one of fact.
2. Divulging information and evidence to special prosecutor.
The letter of the defense attorney to the special
prosecutor that was written after the hearing on the motion to
dismiss, together with the conversation of the defense attorney
with the special prosecutor, divulged all of the information and
evidence that the defense attorney and his investigator had
developed about the case. While other attorneys might not have
pursued this course, we are not persuaded that this constituted a
violation of Jaimi’s right to effective assistance of counsel.
The defense attorney’s stated purpose in divulging the
information and evidence was to convince the special prosecutor to
conduct an independent investigation. The defense attorney
believed that if the special prosecutor and his investigators would
- 13 <=
ae
APP. 14
pursue this investigation they would conclude that Jaimi was
telling the truth and the cases would be resolved favorably. This
may seem like a naive plan to those looking back now, but it is
apparent that at the time, the.defense attorney was convinced that
this was the best course of action. He testified later that he
wanted a polygraph examination of Jaimi and hoped that the special
prosecutor would be persuaded by the investigation to give Jaimi
the examination at state expense. He stated that resources were
not available to him to have the examination otherwise. He stated
that he did not believe that the district judge would have granted
Jaimi the right to have a polygraph examination at county expense.
Even though divulging this information and evidence by the
defense attorney did not produce the result the defense attorney
wanted, we are not persuaded that it was ineffective assistance for
the defense attorney to have tried this tactic. There is no
portion of the ABA standards that prohibits disclosures such as
these by a defense attorney. It is true that Standard 4-3.1
requires that "the lawyer should explain the obligation of
confidentiality which makes privileged the accused’s disclosures
relating to the case." Here, Jaimi had already testified to his
actions in relationship to the charges. The defense attorney
divulged nothing new about Jaimi’s version. The other information
and evidence divulged by the defense attorney was the result of
investigation by the defense attorney and his investigator, not
what Jaimi had told then.
3, Jaimi’s interrogation by the investigator.
The interrogation of Jaimi by the investigator from the
attorney general’s office was merely an extension of the plan that
the defense attorney had initiated by divulging the information and
evidence that were contained in his letter to the special
prosecutor and his conversation with the special prosecutor and his
investigators. We are not persuaded that allowing Jaimi to be
interrogated by the investigator without counsel being present
constituted ineffective assistance of counsel.
The defense attorney testified in the first post-conviction
proceeding that he discussed the interrogation with Jaimi before
- 14 -
APP. 15
it occurred, that he explained Jaimi’s right to remain silent, and
that Jaimi agreed that he should submit to the interrogation.
4. Failure to apply for funds to assist in the defense and
failure to employ experts.
The defense attorney did not apply to the trial court for
funds to investigate or to employ experts. No facts are asserted
that would have been discovered by additional investigation. No
expert testimony is offered that could have been produced if funds
had been sought from the trial court. In the absence of this
proof, we find no evidence of ineffective assistance of counsel on
these grounds.
5. Inadequate investigation.
The defense attorney employed an investigator whom the
defense attorney later described as a "flake." Jaimi now complains
that the defense attorney did not investigate the charges
thoroughly enough. Standard 4-4.1 of the ABA standards sets out
the defense attorney’s duty to investigate the circumstances of
Jaimi’s case. Jaimi has not presented any evidence in order to
substantiate that an inadequate investigation affected the outcome
of the case.
6. Inadequate preparation for trial and failure to request
continuance.
The public defender was appointed to replace the defense
attorney approximately three weeks prior to trial. The public
defender testified at the rirst post-conviction proceeding that he
found that the case was not prepared for trial. He stated that he
should have requested that the trial court vacate the trial to
allow him to investigate the case further and to prepare for trial.
No evidence has been offered as to what new facts or defenses could
have been developed if the trial had been continued and further
preparation conducted.
7. Consolidation of cases.
The defense attorney sought and obtained the
consolidation of the trials on the three charges on the premise
that it would be to Jaimi’s advantage to have all the facts
concerning the events from June 21 through July 1, 1984, presented
- 15 -
bis
APP. 16
to the jury. Although many defense attorneys might not agree with
this approach, we are not prepared to say that this choice amounted
to ineffective assistance of counsel.
In his testimony at the first post-conviction proceeding the
defense attorney described his reason for seeking’ the
consolidation:
Well, ... they were all so interrelated that the
only way that we could show that it was really the
intent of Marilyn to murder Jaimi, rather than the
other way around, that and from what Jaimi had told
us that he had wrestled the gun, that she pointed
the rifle at him and pulled the trigger, but it
didn’t go off, and that he took the gun away from
her, and then is when she went dancing down the
hall and when he shot her, and none that of (sic)
would have had any meaning to the jury at all
unless they had the whole scenario which would
include the phoney (sic) rape allegation and the
phony kidnap allegation.
He also testified that he discussed the motion with Jaimi before
it was made.
Standard 4-5.2 of the ABA standards provides that the only
decisions that must be made by the accused after full consultation
with counsel are what plea to enter, whether to waive jury trial,
and whether to testify. This standard states:
(b) The decisions on what witnesses to call,
whether and how to conduct cross-examination, what
jurors to accept or strike, what trial motions
should be made, and all other strategic and
tactical decisions are the exclusive ~~ovince of
the lawyer after consultation with the client.
There was no obligation for the defense attorney to leave the
decision on whether to request consolidation to Jaimi. We will not
second guess the decision.
8. Reliance on clairvoyance.
In the decision on the second application for post-
conviction relief the trial court found that none of the evidence
directly established that the letter the defense attorney received
- 16 =
, alk a
APP. 17
from his niece about her clairvoyant contact with Marilyn had any
influence on the manner in which the defense attorney defended the
case. Our review of the record confirms this finding. Jaimi
claims that the defense attorney relied upon his niece’s
clairvoyant contact with MHarilyn and, therefore, did not
investigate any alternative defenses. Standard 4-4.1 of the ABA
standards sets out the defense attorney’s duty to investigate the
circumstances of Jaimi’s case. We conclude that this standard was
not violated. The discussion of the defense attorney with his
niece concerning Tiffnie’s participation in the death of her mother
occurred after Jaimi had related his new version of the facts to
the defense attorney. There is no evidence to support the
supposition that Jaimi’s new version implicating Tiffnie was
provoked by the clairvoyance of the defense attorney’s niece or the
defense attorney’s belief in it. In the absence of such evidence
we are not prepared to use reliance on clairvoyance as a basis for
ineffective assistance of counsel.
9. Failure to have psychological or psychiatric examination.
Jaimi asserts that the public defender or the defense
attorney should have advised him about being examined by a
psychiatrist or a psychologist before trial. No evidence is
vuffered that would establish any defense for Jaimi through such
expert testimony. The psychologist who examined Jaimi after his
conviction and who testified in conjunction with the sentencing did
not offer any opinion that would excuse the killing. His testimony
indicated only that there was some possibility that Jaimi could be
rehabilitated. We are unable to conclude that the failure to have
Jaimi examined before the trial constituted ineffective assistance
of counsel.
10. Excessive use of alcohol.
Jaimi contends that the defense attorney came to his cell
on many occasions when the defense attorney was under the influence
of alcohol. Even if we assume these allegations are true, no
evidence is offered to show in what way this affected the defense
attorney’s representation of Jaimi.
-17-
APP. 18
11. Failure to object to evidence and to request mistrial.
The prosecutor referred in his opening statement to two
"hot" checks that Jaimi had reportedly written in Battle Mountain,
Nevada. When the checks were offered, the public defender
objected, and the checks were not admitted. Jaimi argues that the
failure of the public defender to object to the statement of the
prosecutor and to move for a mistrial constituted ineffective
assistance of counsel. We cannot agree. No ection is made
between the checks and the murder. We must assume that the jury
followed the instructions of the trial court and made its judgment
in the case based on the evidence presented and not on statements
of counsel concerning evidence that was not connected with the
homicide.
12. Failure to request a new trial.
Jaimi asserts that the public defender should have moved
for a new trial. Ne basis for such 4 motion is suggested. We find
no basis for supporting an ineffective assistance of counsel claim
on this ground.
AS TO PART II: SHEPARD, C.J., BAKES and HUNTLEY, JJ., concur.
BISTLINE, J., dissents.
Il.
WAS THE LESSER INCLUDED OFFENSE INSTRUCTION
ERRONEOUS?
Jaimi asserts that the trial court erred in giving the jury
Instruction No. 15, concerning lesser included offenses. Tais
instruction stated:
The law permits the jury to find the defendant
guilty of any lesser offense which is necessarily
included in the crime charged in the Information,
whenever such a course is consistent with the facts
found by the jury from the evidence in the case,
and with the law as given in the instructions of
the Court.
When you are deliberating with respect to each
count, you should first consider the crime charged.
You should consider the included offenses only in
the event the State has failed to convince you
- 18 -
APP. 19
beyond a reasonable doubt of the guilt of the
accused with respect to the crime charged.
The jury will bear in mind that the burden is
always upon the Prosecution to prove beyond a
reasonable doubt every essential element of any
lesser offense which is necessarily included in any
crime charged in the Information; the law never
imposes upon a defendant in a criminal case the
burden or duty of calling any witnesses or
producing any evidence.
Jaimi argues that the second sentence of the second paragraph
of this instruction required the jury to agree unanimously to
acquit Jaimi of first degree murder before they could consider any
lesser included offenses. In support of this position Jaimi
presents the instruction given by the trial court which states:
"The verdict reached in this case must be unanimous, that is, you
must agree unanimously as to whether the defendant is guilty or not
guilty as regards any offense." State v. Korbel, 231 Kan. 657, 647
P.2a 1301 (1982) is cited as a basis for Jaimi’s position on the
error asserted. We find no error in the instruction given on
lesser included offenses.
The major premise of the argument that Instruction No. 15 was
erroneous is that the words “failed to convince you beyond a
reasonable doubt" would be interpreted by the jury to mean “if you
unanimously agree." The fallacy in this major premise is that the
words "failed to convince you beyond a reasonable doubt" could
reasonably only be interpreted by the jury to mean "if you cannot
; agree." These are precisely the words that the Kansas Supreme
Court found to cure any problem with the instruction that was at
issue in Korbel.
Instruction No. 15 allowed the jury to consider lesser
included offenses if they could not agree that Jaimi was guilty of
first degree murder. That was a correct statement of the law. We
note that in State v. Gilman, 105 Idaho 891, 673 P.2d 1085, (Ct.
App. 1983) rev. den. (1984) our Court of Appeals considered an
instruction relating to lesser included offenses. The comparable
language in the instruction at issue there was: “If you are not
satisfied beyond a reasonable doubt that the defendant is guilty
- 19 -
APP. 20
of (the offense charged], you may still find him guilty of any such
lesser offense ...." Id. at 897, 673 P.2d at 1091. While the
point at issue in Gilman was not the same as presented here, our
Court of Appeals did not question the propriety of this portion of
the instruction. We denied review of the case. We are reinforced
in our conclusion here by the implicit approval of this similar
language in the instruction in Gilman.
AS TO PART III: SHEPARD, C.J., BAKES, BISTLINE and HUNTLEY,
JJ., concur.
IV.
FAILURE TO SUPPRESS USE OF JAIMI’S TESTIMONY AT
THE HEARING ON THE MOTION TO DISMISS AND HIS
STATEMENTS IN THE INTERVIEW WITH THE
INVESTIGATOR FOR THE ATTORNEY GENERAL.
Jaimi asserts that the trial court erred when it refused to
suppress the use of the testimony he gave at the hearing on the
motion to dismiss and the statements he made in his interview with
the investigator for the attorney general’s office. The motion to
suppress was presented to the court before the receipt of any
evidence in the trial of this case. In denying the motion the
trial court stated:
Well, my ruling will be as follows, and for
the record I want to make it clear why I am rvling
the way I am. As I related to you last evening at
the conclusion of your motion, at the time we had
the motion to dismiss hearing and at which time Mr.
Charboneau did testify, I was very careful, I feel,
in admonishing the defendant and advising him of
his right to remain silent, that he did not have to
testify, that if he did testify that anything he
may say, that he would say, may later be used
against him. We went into a second day on that
hearing, and again on the second day I admonished
him. I don’t know what else you can do. I think he
has the right if he so desires to waive his right
to remain silent. He has the right to take the
witness stand. He has the right to give testimony.
In this motion he wants me to suppress it because
he waived his right to remain silent and made a
statement.
- 20 -
APP. 21
And it’s interesting for the record to note
that Mr. Charboneau through counsel filed a lawsuit
in Jerome County in a habeas corpus action alleging
that we were violating his First Amendment right to
freedom of speech. And a similar action involving
Mr. Charboneau against the Sheriff of Jerome County
is pending in Federal Court again alleging that
he’s violated Mr. Charboneau’s right to freedom of
speech, his First Amendment right. So it’s a
little inconsistent when on one hand you’re
complaining that his rights to remain silent were
violated because he waived that right and took the
stand, and then on the other hand he’s complaining
because we are violating his rights to freedom of
speech. Inconsistent.
That’s a lengthy way to get to my ruling, but
I want it as a matter of this record so that in
review of this matter the higher court will know
why I am ruling the way I an. The motion is
denied. The State has the right to use the
testimony from that hearing on the motion to
dismiss, and the State has the right to use the
interview between the defendant and Mr. Carr in all
respects.
The record of the hearing*on the motion to dismiss indicates
that Jaimi was given ample advice both by the district judge and
by the defense attorney of his right to remain silent. The
interview between Jaimi and the investigator for the attorney
general’s office tcok place at the request of the defense attorney.
Jaimi consented to talk with the investigator, was advised of his
constitutional rights before the interview, and waived those
constitutional rights.
To the extent that the State relied at the trial on any of
Jaimi’s testimony at the hearing on the motion to dismiss or his
statements to the investigator for the attorney general’s office
there was no violation of Jaimi’s rights. In fact, the record
indicates that at trial the State did not attempt to rely on
Jaimi’s testimony at the hearing and used only a very minor portion
of his statements to the investigator.
AS TO PART IV: SHEPARD, C.J., BAKES, BISTLINE and HUNTLEY,
JJ., concur.
- 21 -
WAS PREJUDICIAL EVIDENCE ADMITTED ENTITLING
JAIMI TO A NEW TRIAL?
Jaimi asserts that the trial court admitted inadmissible
prejudicial evidence entitling Jaimi to a new trial. While it is
not entirely clear from the brief filed on Jaimi’s behalf, the
following are apparently the items of evidence that are referred
to in this issue:
Pictures of Marilyn’s two children.
Pictures of Marilyn’s vehicle showing the vehicle
identification numbers had been either totally or partially
removed.
Testimony of Marilyn’s boyfriend as to statements Marilyn made
on June 30, 1984, regarding Jaimi.
The record indicates that the only motion for new trial filed
on behalf of Jaimi related to newly discovered evidence. In the
absence of a motion for new trial on the basis of the allegedly
inadmissible prejudicial evidence, there is no proper basis to
bring this issue before this Court. In any event, we see no error
in the trial court’s admission of the evidence questioned in this
issue. The only portion of this evidence that raises any question
of impropriety is the testimony of Marilyn’s boyfriend who was out
with her the night before her death. The defense offered evidence
of the relationship of Marilyn and Jaimi up to the time of her
death. In rebuttal the State offered the testimony of the
boyfriend as to statements made to him by Marilyn the night before
her death about her relationship with Jaimi. The boyfriend’s
testimony indicated that Marilyn told him she was worried because
she did not know where Jaimi was. That testimony was admissible
under I.R.E. 803, as evidence of her existing state of mind.
AS TO PART V: SHEPARD, C.J., BAKES, BISTLINE and HUNTLEY,
JJ., concur. .
= 22 =<
_*
APP. 23
VI.
FAILURE TO STRIKE EVIDENCE OF GRAND THEFT AND
KIDNAPPING AFTER DISMISSAL OF THOSE CHARGES.
Jaimi asserts that the trial court erred by failing to strike
from the record all evidence pertaining to the grand theft and
kidnapping charges after those charges had been dismissed for lack
of jurisdiction. At the time the trial court denied the motion to
strike this evidence, the district judge stated that the evidence
pertaining to the grand theft and kidnapping would have been
admissible, even if those charges had not been filed and
consolidated with the first degree murder charge. The district
judge stated: "This thing occurred over a period of some ten or
twelve days and I think the jury needs the benefit of all of that
testimony in order to properly arrive at a decision, whichever way
they decide." We agree.
I.R.E. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in
order to show that he acted in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plen, knowledge,
identity, or absence of mistake or accident.
In State v. Needs, 99 Idaho 883, 892-93, 591 P.2d 130, 139-40
(1979) this Court approved the admission of evidence that two weeks
prior to the homicide the defendant assaulted the victim with a
butcher knife on the grounds that the evidence of this assault
tended to show the defendant’s motive or intent. We believe the
same is true of the evidence of the kidnapping and grand theft
here. The circumstances of these acts indicated the hostility of
Jaimi toward Marilyn.
AS TO PART VI: SHEPARD, C.J., BAKES and HUNTLEY, JJ., concur.
BISTLINE, J., dissents.
APP. 24
Vil.
WAS THE EVIDENCE SUFFICIENT
TO SUPPORT THE VERDIUiI?
Jaimi asserts that there was not sufficient evidence to
Bupport the verdict of the jury. We disagree.
As this Court has pointed out in another recent first degree
murder case where this same issue was presented:
In analyzing appellant’s contention, the
appropriate standard of review is whether there is
substantial competent evidence to support the
jury’s verdict. (citations omitted) Our function
on uppeal is to examine the supporting evidence,
not to place ourselves in the jury’s position or
reweigh the significance of evidence as it relates
to specific elements. (Citations omitted. ] On
appeal, all facts, and inferences to be drawn from
those facts, are construed in favor of upholding
the lower court decision.
State v. Aragon, 107 Idaho 358, 366, 690 P.2d 293, 301 (1984).
The evidence in this case, together with the inferences that
the jury could have drawn from that evidence, provide a sufficient
basis for the verdict of the jury. Jaimi had previously
perpetrated several acts of violence toward Marilyn. He had also
made threats to kill her. He purchased the rifle a few days before
Marilyn’s death. Shortly before Marilyn’s death Tiffnie heard
shots. When she went to the barn to investigate, Tiffnie observed
Jaimi holding a rifie pointed at Marilyn as Marilyn sat wounded on
the ground. A short time later, Tiffnie and Tira heard more shots
and found their mother apparently dead. Jaimi was found by the
investigating officers in a nearby field with the rifle lying
nearby. At the time of his apprehension Jaimi acknowledged to tne
arresting officers that he had shot Marilyn. These facts and the
inferences were sufficient for the jury to find that Jaimi
unlawfully killed Marilyn with malice aforethought, wilfulness,
deliberation, and premeditation. State v. Warden, 100 Idaho 21,
592 P.2d 836 (1973).
- 24 -
AS TO PART VII: SHEPARD, C.J., BAKES and HUNTLEY, JJ.,
concur.
BISTLINE, J., expresses no opinion.
Vill.
POST-CONVICTION HEARINGS.
A. The first hearing. -
Jaimi asserts that the findings of fact and conclusions
cf law of the trial court after the first post-conviction hearing
were erroneous. This hearing dealt with the alleged ineffective
assistance of counsel. We have reviewed the findings cf fact in
light of the evidence submitted at the hearing and find that these
findings were supported by substantial competent evidence. The
conclusions of law announced by the trial court are consistent with
our conclusions here as to the ineffective assistance of counsel
based on the facts submitted at the hearing. We find no error in
then.
B. The second hearing.
1. Failure to consider evidence.
At the second post-conviction hearing the trial court limited
the evidence to matters that were not presented on the original
application for post-conviction relief. At the hearing the primary
issue that was addressed was the purported reliance of the defense
attorney on clairvoyance in preparing Jaimi’s defense. The public
deZender also testified regarding his state of preparation before
trial and how the errors of the defense attorney prejudiced his
ability to defend Jaimi. Jaimi asserts that the trial court failed
to consider the testimony of the public defender at this hearing.
The transcript of the second post-conviction hearing reveals
that the trial court allowed testimony of the public defender
relating to matters that were considered at the first hearing “for
foundation purposes in order to make more clear [the] testimony in
this matter." The trial court stated definitely that it was not
going back and adjudicating any of those issues that it had already
ruled on in the original application. The second defense attorney
stated to the trial court that he did not intend to relitigate
- 25 -
-_
APP. 26
those issues, “but rather to show how those issues affected the
trial stage of this case." The trial court then commented:
For guidance, counsel, I will agree with you, that
if you are going to proceed on this amended
application for post-conviction relief, alleging
that the defendant’s Sixth Amendment rights were
violated, you do have to show not only that they
were violated but how they affected the trial of
this case, so I would allow you to show that and,
likewise, go back into it. ... But I’m not going
to relitigate any of those other issues.
In the findings of fact and conclusions of law rendered by
the trial court after the second post-conviction hearing, the trial
court stated that the only new issue raised concerned a claim that
the defense attorney relied “on supernatural, clairvoyant phenomena
to dictate his strategy in defending Jaimi Charboneau and,
therefore, allegedly rendered ineffective the assistance of counsel
provided by [the defense attorney])."
We conclude from this record that the trial court did not
intend to consider the testimony of the public defender that went
beyond this new issue, except by way of background. We agree that
this was proper. Essentially, Jaimi contends that the trial court
failed to consider the effect that the defense attorney’s reliance
on clairvoyance had on the public defender’s ability to render
effective assistance to Jaimi in the trial. The fallacy in this
position is that in its findings and conclusions after the second
post-conviction hearing the trial court concluded that clairvoyance
played no part in the strategy for Jaimi’s defense developed by the
defense attorney. Therefore, we conclude that there was no basis
for the trial court to rule that this strategy affected the public
defender’s defense of Jaimi.
2. Were the findings and conclusions erroneous?
Jaimi asserts that the findings of fact and conclusions
of law rendered by the trial court after the second post-conviction
hearing were erroneous. We have reviewed those findings and
conclusions. The findings of fact are supported by substantial
competent evidence. The conclusions of law are in concurrence with
- 26 -
mm -
App. 27
our own conclusions contained in this opinion concerning the
relationship of clairvoyance to the effective assistance of
counsel.
AS TO PART VIII: SHEPARD, C.J., BAKES and HUNTLEY, JJ.,
concur. mn
BISTLINE, J., expresses no opinion.
rx.
SENTENCING.
A. Participation of jury.
Jaimi asserts that the imposition of the death penalty
with no participation by the jury in the sentencing process
violates the sixth, eighth, and fourteenth amendments to the
Constitution of the United States. He also contends that the
sentence was unconstitutional because he was denied a jury
determination of the aggravating circumstances enumerated in I.C.
§ 19-2515(g).
In 1983 this Court 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, is within the policy determination of the individual
states." State v. Creech, 105 Idaho 362, 373, 670 P.2d 463, 474
(1983) cert. den. 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722
(1984). See also State v. Sivak, 105 Idaho 900, 902, 674 P.2d 396,
398 (1983) cert. den. 458 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d
8&7, (1984); State v. Fetterly, 109 Idaho 766, 710 P.2d 1202
(1985) cert. den., 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 164
(1986); State v. Fain, Slip Op. No. (released today). In 1984
the United States Supreme Court upheld death sentencing by trial
judges. Spaziano vy. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82
L.Ed.2d 340 (1984).
This Court has also held “that Art. 1, § 7, of the Idaho
Constitution does not require the participation of a jury in the
sentencing process in a capital case." Sivak, 105 Idaho at 904,
674 P.2d at 400. See also Fain, Slip Op. No. __—s (released today).
= 27 <-
a SaaS SaaS
2515(g) “Linke |
factual findinga,' “ ;
deciding wnetner thief a 34 Us.
1323, 98 S.Ct, @, 5¢:h. Bg. 34° U8, O42, 98°
S.Ct. 49, $4 L. 8d, PY i 6q° 1 Ray ‘ ie $f, .eisting as a
circuit justice,” ‘denied’ bei Pel tengion to Ghepbnsicn of an order |
denying certiorari oF, in thea} Sena tiiice,. der ata ¥ Of execution.
8
Applicant solens b
for rehearing chat was Pe.
Arizona Supreme Court er in ua pas zt tion
for certiorari. A Oo aeh, ay FDA: 2 pizgna
statute violates a th
Amendments in Aa " Ky
into the deterninat 3
mitigating circumsts ¢ cs ch
jury input would oat Y: az
this Court’s decision in | i
U.S. 242, 96 S.Ct. 2960, 9@
yay
434 U.S. at 1325, 98 U.S. at 9, 8a" a
Jaimi correctly points out that SH
the entire Supreme Court, but oply WR
argues that McM an enr aia! i
91 L.Ed.2d 67 (1986) supports his pa tig by
interesting that Justice
Court in McMillan, including SPS. gh
Amendment right to jury ef
on specific findings of fact.4 : Y Or
91 L.Ed.2d at 76. In his detail 9
for the proposition: “Sentenci F,
circumstances of an oftang citys ab aa ‘ Meter iat
RBS te Leh Rog ik tag
punishment, and we have cons Laanedy fre :
that mandate consideration of + akatind Say ae” ey -
477 U.S. at 88, 106 S.Ct. at 2420, 9} L.Ed. alae 76. TRA erux of
the decision in MceMillan was the eppelugion Shale she foqtiag isgue
there -- visible possession of a fireays “r Wag Rat aw elagent af
the crimes for which the defendants! were cepvicted, but were
- 28 - a
APP, 29
instead “a sentencing factor that comes into play only after the
defendant has been found guilty ...." McMillan, 477 U.S. at 84, 106
S.Ct. at 2416, 91 L.Ed.2d at 72. That is how we view the
aggravating circumstances listed in I.C. § 19-2515(g).
To accept Jaimi’s argument that the jury must be involved in
determining whether aggravating circumstances exist, we would have
to conclude that the aggravating circumstances listed in I.c. § 19-
2515(g) are elements of first degree murder. We are unable to
reach that conclusion. The circumstances listed in the statute are
clearly circumstances to be considered in sentencing and not
elements of first degree murder. It is not unconstitutional for
a judge, instead of a jury, to determine whether any of the
aggravating circumstances listed in the statute exist.
Our opinion in this aspect of the case is not changed by the
décision of the Ninth Circuit in Adamson v. Ricketts, 865 F.2d 1011
(9th Cir. 1988}. In Adamson the Ninth Circuit held Arizona’s death
penalty sentencing statutes to be in violation of the sixth
amendment. During ceargument of this case to determine what impact
Adamson might have on our opinion here, the solicitor general for
the state of Idaho acknowledged that there is no significant
difference between the Arizona death penalty sentencing statutes
and those of Idaho. Nevertheless, we are not convinced that
Adamson correctly states the requirements of the sixth amendment
on this issue.
Judicial sentencing in capital cases does not violate the
sixth amendment. Spazianc vy. Florida, 468 U.S. 447, 104 §&.Ct.
3154, 82 L.Ed.2d 340 (1984). Adamson attempts to distinguish
Spazgiano on the ground that in Spaziano “the Court never reached
the particular contention Adamson has raised: that Arizona’s
capital sentencing statute requires the judge to determine elements
of the offense charged, thereby taking this factual element out of
the jury’s hands in violation of the Sixth Amendment." 865 F.2d
at 1028. We disagree.
In Spaziano the Court noted that the Florida capital
sentencing statute that was at issue directed the sentencing judge
“to determine whether statutory aggravating circumstances were
= 29 -
APP, 30
outweighed by statutory mitigating circumstances." 468 U.S. 450
n.4, 104 S.Ct. at 3157 n.4, 82 L.Ed.2d at 343 n.4. The Florida
statute was similar in the important aspects to those portions of
I.C. § 19-2515 relating to death penalty sentencing. The Florida
statute provided that the sentencing judge should weigh the
aggravating and mitigating circumstances. If the judge imposed a
sentence of death, the judge was required to set forth in writing
“findings upon which the sentence of death is based as to the
tracts: (a) That sufficient aggravating circumstances exist as
enumerated in subsection (5), and (6) That there are insufficient
mitigating circumstances to outweigh the aggravating
circumstances.” 1972 Fla. Laws, ch. 72-724, Sec. 921.141(3)(b).
The aggravating circumstances enumerated in the Florida law at
issue in Spaziano were similar in some respects to those contained
in I.C. § 19-2515(g). Significantly, one of the aggravating
circumstances in Florida was: “The capital felony was especially
heinous, atrocious, or cruel." 1972 Fla. Laws, ch. 72-724,
Sec. 921.141(6)(h). This is substantially the same as I.C. § 19-
2515(g)(5) that is at issue here, except thet our statute adds the
qualifying phrase, “manifesting exceptional depravity."
The Florida Supreme Court noted in its decision “the trial
judge found that the circumstances of the offense were especially
heinous, atrocious, and cruel, and secondly, found that the
defendant was previously convicted of felonies involving the use
or threat of violence to the person." Spazgiano v. State, 393 So.2d
1119 (Fla. 1981). On certiorari the United States Supreme Court
held:
The fact that a capital sentencing is like a trial
in the respects significant to the Double Jeopardy
Clause, however, does not mean that it is like a
trial in respects significant to the Sixth
Amendment’s guarantee of a jury trial. ... The
sentencer, whether judge or jury, has a
constitutional obligation to evaluate the unique
circumstances of the individual defendant and the
sentencer’s decision for life is final.
» (467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d
164 (1984}]. More important, despite its unique
aspects, a capital sentencing proceeding invoives
the same fundamental issue involved in any other
- 30 -
APP. 31
sentencing proceeding--a determination of the
appropriate punishment to be imposed on an
individual. [Citations omitted, except) Williams
» 337 U.S. 241, 247-249, 69 S.Ct. 1079,
1083-1084, 93 L.Ed. 1337 (1949). The Sixth
Amendment never has been thought to guarantee a
right to a jury determination of that issue.
468 U.S. at 454, 104 S.Ct. at 3161, 82 L.Ed.2d at 347.
These comments were made by the Court in considering death penalty
sentencing by a judge under a statute substantially similar to our
statute and with findings of aggravating circumstances similar to
those here. This convinces us that the Court inherently considered
and rejected the premise of the Ninth Circuit in Adamson: that a
capital sentencing statute that requires the judge to determine
aggravating circumstances takes this factual element out of the
jury’s hands in violation of the sixth amendment.
AS TO PART IX(A): SHEPARD, C.J., and BAKES, J., concur.
BISTLINE and HUNTLEY, JJ., dissent.
B. The letter from Marilyn’s father.
1. Hearsay.
Jaimi asserts that it was a violation of the hearsay rule
for the trial court to admit the letter written by Marilyn’s
father. We agree.
Prior to the sentencing hearings, the second defense attorney
filed a motion “for a formal sentencing hearing in accordance with
the provisions of Idaho Code §§ 19-2515, 19-2516, and that the
defendant be afforded all of the rights, both procedural ard
substantive, therein provided." I.C. § 19-2516 states:
The circumstances [in aggravation or mitigation of
punishment) must be presented by the testimony of
witnesses examined in open court, except that when
a witness is so sick or infirm as to be unable to
attend, his deposition may be taken by a magistrate
of the county, out of court, upon such notice to
the adverse party as the court may direct. No
affidavit or testimony, or representation of any
kind, verbal or written, can be offered to or
received by the court, or a judge thereof, in
aggravation or mitigation of the punishment, except
as provided in this and the preceding section.
-31-
ROLE ak EE
APP. 32
I.C. § 19-2515(d) provides for a presentence investigation in all
death penalty cases anc states that c<fter the investigation the
court shall “convene a sentencing hearing for the purpose of
hearing all relevant evidence and arguments of counsel in
aggravation and mitigation of the offense. At such hearing, the
state and the defendant shall be entitled to present all relevant
evidence in aggravation and mitigation."
This Court has approved the consideration by a sentencing
judge in a death penalty case of the presentence investigation
report provided for in I.C. § 19-2515(d), despite the requirement
for live testimony in I.C. § 19-2516. State v. Creech, 105 Idaho
362, 670 P.2d 463 (1983). In reaching its decision in that case
this Court stated: “We hold that the closing language of I.C.
§ 19-2516 clearly and unambiguously provides an exception to the
otherwise required oral testimony and that those authorizations of
I.C. § 19-2535 fall within the purview of the intended exception."
105 Idaho at 368, 670 P.2d at 469. We note that in Creech the
defendant had “demanded that the entire sentencing record be
produced by live witnesses testifying in open court, basing his
demand on I.C. §§ 19-2515 -2516 and the case law interpreting those
statutes." 105 Idaho at 365, 670 P.2d at 466. Cf. State y.
Coutts, 101 Idaho 110, 609 P.2d 642 (1980) and State v. Osborn, 102
Idaho 405, 631 P.2d 187 (1981) (no demand for a formal sentencing
pursuant to I.C. § 19-2516).
The letter in question here was not part of a presentence
report. Even if it had been, the hearsay could only have been
included “where the presentence investigator believes that the
information is reliable." I.C.R. 32(e)(1). Although the letter
was offered and admitted at the time Mr. Arbaugh was testifying,
permitting cross-examination of Mr. Arbauvgh as to the statements
made in the letter, this did not cure the hearsay nature of the
statements. We construe I.C. § 19-2515(d) to permit the parties
in a formal sentencing hearing to present all relevant evidence
that would otherwise be admissible. Under Creech the contents of
presentence investigation reports are an exception to this
- 32 -
APP. 33
requirement. The State would have us also except from the
requirement for live testimony under I.C. § 19-2516 “all relevant
evidence" as referred to in I.C. § 19-2515(d). This interpretation
would make relevant hearsay admissible in a sentencing hearing,
even though it was not included in a presentence investigation
report.
We note that the Idaho Rules of Evidence, except those with
respect to privileges, do not apply to sentencing proceedings.
I.R.E. 101(@)(3). Therefore, there is no conflict between I.C. §
19-2515(d) and these rules that would render the statute of no
force or effect under I.R.E. 1102. However, if we were to allow
all relevant hearsay to be admitted in formal death penalty
sentencing hearings we would destroy the requirement of I.C.R.
32(e)(1) that hearsay included in presentence reports be only that
which the presentence investigator believes is reliable. The
practice would quickly become for hearsay to be offered at the
hearing rather than through the presentence report. Therefore, we
hold that the letter should not have been admitted.
We are not dissuaded from our conclusion on this issue by the
statement of the trial court in the written sentencing findings
that he had “endeavored to avoid anything that might be hearsay,
not absolutely pertinent or not totally supported by the evidence."
(FINDINGS OF THE COURT IN CONSIDERING DEATH PENALTY UNDER I.C. 19-
2515, p. 13) In a matter as awesome as the decision whether to
impose the death penalty, a strict compliance with the procedures
for sentencing is required. Even a well intentioned and
conscientious effort by the trial court to avoid considering the
hearsay contained .in the letter does not suffice.
AS TO PART IX B(1): HUNTLEY, J., concurs.
BAKES, and BISTLINE, JJ., concur in the result.
SHEPARD, C.J., dissents.
Victim impact statement.
Jaimi also asserts that Mr. Arbaugh’s letter should not
have been admitted because it was a victim impact statement (VIS),
prohibited in death penalty cases by Booth v. Maryland, 428 U.S.
- 33 -
APP. 34
496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). We agree. We also
take this opportunity te advise the trial court on resentencing to
apply Booth to the VIS contained in the presentence report.
In Booth the Court held that the introduction of a VIS at the
sentencing phase of a capital murder case violates the eighth
amendment to the United States Constitution. The Court held
invalid a Maryland statute that requires consideration of a VIS
describing the effect of the crime on the victim and the victim’s
family. Here, the State filed a motion for the crial court to
receive Mr. Arbaugh’s letter into evidence pursuant to I.C. § 19-
5306(1)(b) and (3). That statute provides:
(1) Upon request, each victim of a felony offense
shall be:
(b) Consulted by the presentence investigator
during preparation of the presentence report and
~ have included in that report a statement of the
impact which the defendant’s criminal conduct has
had upon the victim;
(3) The provisions of this section shall apply
equally to the immediate families of homicide
victims or immediate families of victims of such
youthful age or incapacity as precludes them from
exercising these rights personally.
This statute is similar to the Maryland statute considered by the
Court in Booth.
The presentence report contains an indication that the
investigator received both written and oral comments from Marilyn’s
parents. These comments were included in the report as a VIS.
This VIS refers to the relationship between Marilyn and Jaimi,
assaults on Marilyn by Jaimi on several occasions, pleas by Marilyn
to Jaimi that he stay away from Marilyn and her children,
statements by Marilyn to her father about threats made toward
Tiffnie and Mr. Arbaugh by Jaimi, and a handwritten will by Marilyn
naming her daughters as beneficiaries as a result of her
- 34 -
a ° Se
hi.
APP. 35
expectation of the outcome of the threats by Jaimi. The report
also indicates that Marilyn’s mother told the presentence
investigator that Tira seemed to have withdrawn into herself after
Marilyn’s death. Marilyn’s parents are reported by the presentence
investigator to have a deep fear of Jaimi and to have expressed the
hope that the trial court would take measures to insure the safety
of themselves and Marilyn’s two daughters.
Mr. Arbaugh’s letter to the trial judge was written almost
five months after the presentence report was submitted. Much of
the information contained in the letter had already been included
in the VIS portion of the presentence report. We note that the
second defense attorney moved to strike the VIS portion of the
presentence report.
In Booth the Court found that two types of information were
included in the _ VIS: “First, it described the personal
characteristics of the victims and the emotional impact of the
crimes on the family. Second, it set forth the family members’
opinions and characterizations of the crimes and the defendant."
482 U.S. at 500, 107 S.Ct. at 2533, 96 L.Ed.2d at 444. The Court
found that "this information is irrelevant to a capital sentencing
decision, and that its admission creates a constitutionally
unacceptable risk that the jury may impose the death penalty in an
arbitrary and capricious manner." 482 U.S. at 500, 107 S.Ct. at
2533, 96 L.Ed.2d at 444. The letter did not contain the first type
of information described in Booth, but did contain the second type.
The VIS portion of the presentence report contained both types of
information.
While sentencing in death penalty cases in Idaho is by a judge
and not by a jury, as is the case in Maryland, we do not consider
this to be a distinction that makes Booth inapplicable to a VIS in
a death penalty case in Idaho. Although we have upheld sentencing
by district judges in death penalty cases, we are not prepared to
interpret the eighth amendment to give judges more latitude than
juries in making their decisions as to whether a defendant should
be executed. The risk of arbitrary and capricious decisicns exists
whether the sentence is determined by a jury or a judge.
- 35 -
APP. 36
Therefore, we hold that the letter should not have been considered
by the trial court in the sentencing. We advise the trial court
that when resentencing Jaimi, as provided below, Booth should also
be applied to the VIS contained in the presentence report. We also
declare that I.C. § 19-5306(1)(b) and (3) are unconstitutional
under the eighth amendment insofar as they allow the two types of
information proscribed in Booth to be considered in a death penalty
case.
AS TO PART IX B(2): BAKES, BISTLINE and HUNTLEY, JJ., concur.
SHEPARD, C.J., dissents.
c. Findings. :
1. Did the trial court improperly consider aggravating
circumstances not listed in I.C. § 19-2515?
Jaimi asserts the in its FINDINGS OF THE COURT IN
CONSIDERING DEATH PENALTY UNDER I.C. 19-2515 (the Findings) the
trial court improperly considered circumstances not listed in the
statute. Secondarily, he asserts that he was gravely prejudiced
because when the trial court considered these circumstances, he was
denied notice that the trial court would predicate its sentence on
these circumstances. We disagree with both of these assertions.
As an example of the findings that he argues were
objectionable, Jaimi cites the portion of the Findings which states
that at the time Tiffnie left the barn after finding her mother
bleeding and wounded with Jaimi standing over her, “the life of
Marilyn Arbaugh probably could have been saved if she had received
the necessary medical attention." He argues that if he had been
notified that the trial court intended to consider this
circumstance, he would have contested the issue vigorously. He
also contends that the consideration of these "non-statutory
aggravating circumstances" violated the cruel and unusual
punishment clause of the eighth amendment and permits circumstances
not found beyond a reasonable doubt to enter the sentencing
decision.
This Court has previously rejected all these arguments except
_ the one based on the eighth amendment. Creech, 105 Idaho at 369-
- 36 -
gree ee
mS ee
[we
APP. 37
70, 670 P.2& at 470-71; Sivak, 105 Idaho at 905, 674 P.2d at 401. —
With regard to the eighth amendment ciaim, we note that the trial
court concluded the Findings by stating:
This Court finds beyond a reasonable doubt that the
facts establish the statutory aggravating
circumstances set forth in Idaho Code Section 19-
2515 (G)(5) and 19-2515 (G)(6). This murder was
especially heinous, atrocious and cruel thereby
manifesting exceptional depravity. Further by this
murder and the circumstances surrounding its
commission, Jaimi Dean Charboneau exhibited utter
disregard for human life.
Through this portion of the Findings the trial court made clear
that its decision was not based on non-statutory aggravating
circumstances. Therefore, we need not address the eighth amendment
argument.
AS TO PART IX C(1): SHEPARD, C.J., BAKES, and HUNTLEY, JJ.,
concur.
BISTLINE, J., dissents.
2. Findings not supported by evidence.
Jaimi asserts that there was not sufficient evidence to
support a critical portion of the Findings. He challenges the
following statement of the trial court:
That after firing the first volly (sic) of shots
the victim Marilyn Arbaugh was wounded but her life
could have been saved if she had received necessary
medical attention. At that moment the defendant,
Jaimi Charboneau had a choice. He could have saved
the woman he professed to love. However, with at
least two minutes to give thought to the matter,
the defendant, Jaimi Dean Charboneau, chose to fire
additional shots into the wounded and helpless body
of Marilyn Arbaugh. It appears from the facts that
Jaimi Dean Charboneau acted intentionally,
methodically and violently while he erased from the
face of this earth the life of a human being.
Jaimi relies on the testimony of the State’s pathologist to rebut
the trial court’s statement that Marilyn could have been saved, if
- 37 -
APP. 38
she had received necessary medical attention before the final shots
were fired. The pathologist testified that the cause of death was
gunshot wounds of the chest that severed arteries to the heart and
lungs. He stated that he had no opinion as to which of the bullets
caused the fatal wounds and that it was beyond the expertise of a
pathologist to give an opinion as to the order in which the wounds
occurred. There is no other evidence in the record that
contradicts this testimony. Therefore, we agree that there is no
evidence in the record that supports the trial court’s statement.
It is unclear from the Findings whether the trial court would
have imposed the death penalty without having concluded that
Marilyn was not mortally wounded until the second volley of shots
was fired. For that reason, together with others expressed above
and below, we vacate the sentence and remand for resentencing.
AS TO PART IX C(2): BISTLINE and HUNTLEY, JJ., concur.
SHEPARD, C.J. and BAKES, J., dissent.
3. Mitigating factors.
Jaimi asserts that the trial court failed to list in the
Findings all the mitigating factors that were presented. He argues
particularly that the trial court failed to consider significant
family information contained in the presentence report. We have
compared the trial court’s statement of mitigating factors with the
presentence report and are unable to agree with Jaimi on this
issue. All of the material mitigating information contained in
the report is reflected in the Findings.
AS TO PART IX C(3): SHEPARD, C.J., BAKES, BISTLINE and.
HUNTLEY, JJ., concur.
4. Vagueness of I.C. § 19-2515(g)(5) and (6).
Jaimi asserts that I.C. § 19-2515(g)(5) and (6) are
unconstitutionally vague and that their use in determining Jaimi’s
sentence violates the eighth amendment. He argues that Maynard v.
Cartwright, 486 U.S. ___, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)
and Adamson v. Ricketts, 865 F.2d 1011 (1989) support his position
with regard to I.C. § 19-2515(g)(5). He argues that the meaning
- 38 -
APP. 39
given to I.C. § 19-2515(g)(6) in State vy. Osborn, 102 Idaho 405,
631 P.2d 187 (1981) was inadequate. We disagree.
In Maynard the Supreme Court held that the “especially
heinous, atrocious, or cruel" aggravating circumstance of the
Oklahoma death penalty statute was unconstitutionally vague under
the eighth amendment because it did not offer sufficient guidance
to the jury in deciding whether to impose the death penalty. The
decision of the Tenth Circuit Court of Appeals that was affirmed
in Maynard (Cartwright v. Maynard, 822 F.2d 1477 (10th Cir. 1987))
noted that the Oklahoma courts had not “adopted a limiting
construction that cured the [vagueness] infirmity." 486 U.S. at
__,» 108 S.Ct. at 1857, 100 L.Ed.2d at 376. In its opinion the
Supreme Court also distinguished the situatior. in Maynard from that
in Proffitt v. Florida, 428 U.S. 242, 254-56, 96 S.Ct. 2960, 2972-
73, 49 L.Ed.2d 913, 925-26 (1976).
In Qsborn this Court adopted the definition of "heinous,
atrocious and cruel" of the Florida Supreme Court that was approved
in Proffitt. This court quoted the following interpretation of the
Florida court:
“It is our interpretation that heinous means
extremely wicked or shockingly evil; that
atrocious means outrageously wicked and vile; and,
that cruel means designed to inflict a high degree
of pain with utter indifference to, or even
enjoyment of, the suffering of others.
the crime apart from the norm of capital felonies-
~the conscienceless or pitiless crime which is
." [Citation
omitted.}) (Emphasis added.)
102 Idaho at 418, 631 P.2d at 200.
This Court also adopted the definition of “exceptional depravity"
of the Nebraska Supreme Court in State v. Simants, 197 Neb. 549,
250 N.W.2d 881, 891 (1977) cert. den., 434 U.S. 878, 98 S.Ct. 231,
54 L.Ed.2d 158, reh. den., 434 U.S. 961, 98 S.Ct. 496, 54 L.Ed.2d
322 (1977). This Court quoted the following definition of the
Nebraska court:
- 39 -
APP. 40
"In interpreting this portion of the statute, the
key word is ‘exceptional.’ It might be argued that
every murder involves depravity. The use of the
word ‘exceptional,’ however, confines it only to
those situations where depravity is apparent to
such an extent as to obviously offend all standards
of morality and intelligence."
102 Idaho at 418, 631 P.2d at 200.
We find that these definitions remove the vagueness from I.C. § 19-
2515(g)(5) that would cause us to hold the use of it to be in
violation of the eighth amendment according to Maynard.
In Osborn this Court also construed the “utter disregard for
human life" provision of I.C. § 19-2515(g) (6):
(Wje hold that the phrase “utter disregard" must be
viewed in reference to acts other than those set
forth in I.C. §§ 19-2515(f)(2), (3), and (4) [now
§§ 19-2515(g)(2), (3), and (4)}. We conclude
instead that the phrase is meant to be reflective
of acts or circumstances surrounding the crime
which exhibit the highest, the utmost, callous
disregard for human life, i. e.; the cold-blooded,
pitiless slayer. With such an interpretation, it
is our conclusion that this aggravating
circumstance meets the constitutional requirements
set forth by the United States Supreme Court.
102 Idaho at 419, 631 P.2d@ at 201.
We agree.
Our opinion as to this issue is not changed by Adamson vy.
Ricketts. In Adamson the Ninth Circuit held that’ the
interpretation by the Arizona Supreme Court of the portion of
Arizona’s death penalty sentencing statute that is similar to I.C.
§ 19-2515(g)(5) was not sufficient “to provide satisfaction of
Godfrey’s (Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64
L.Ed.2ad 398 (1980)]} mandate that aggravating circumstances
objectively guide discretion and narrow application of the death
penalty." 865 F.2d at 1033. We note that Godfrey cited Proffitt
vy. Florida without distinguishing its rationale or its result. 446
U.S. at 425, 100 S.Ct. at 1764, 64 L.Ed.2d at 403. As we have
- 40 -
APP. 41
indicated above, the definition of “heinous, atrocious and cruel"
adopted by this Court in Osborn was that of the Florida Supreme
Court that was approved in Proffitt. Therefore, we are convinced
that whatever validity there may be to the decision in Adamson
concerning the Arizona definitions of their statutory terms, the
definitions contained in Osborn remain constitutionally sufficient.
AS TO PART IX C(4): SHEPARD, C.J., BAKES and HUNTLEY, JJ.,
concur.
BISTLINE, J., dissents.
5. No duplication of aggravating circumstances.
The trial court found that the aggravating circumstances
referred to in both I.C. § 19-2515 (g) (5) and (6) were present in
this case. Jaimi asserts that it was improper for the trial court
to use both of these aggravating circumstances in determining his
sentence, because they duplicate each other. Today, this Court has
held that these two factors are not duplicative. State v. Fain,
1989 Slip Op. No. ___. Therefore, we reject Jaimi’s assertion.
AS TO PART IX C(5): SHEPARD, C.J., BAKES and HUNTLEY, JJ.,
concur.
BISTLINE, J., dissents.
6. Weighing mitigating circumstances against I.C. § 19-
2515(g)(5) and (6) separately.
I.C. § 19-2515(c) states:
{c) Where a person is convicted of an offense
which may be punishable by death, a sentence of
death shall not be imposed unless the court finds
at least one (1) statutory aggravating
circumstance. Where the court finds a statutory
aggravating circumstance the court shall sentence
the defendant to death unless the court finds that
mitigating circumstances which may be presented
=é@l1-<-
APP. 42
outweigh the gravity of any aggravating
circumstance found and make imposition of death
unjust.
Jaimi asserts that this statute requires the trial court to
weigh all the mitigating circumstances presented against each
aggravating circumstance found, separately. He argues that if the
trial court finds that all the mitigating circumstances presented
outweigh any one of the aggravating circumstances found, then the
sentence of death may not be imposed. He contends that this
required weighing was done incorrectly by the trial court in this di
case. We agree that all the mitigating circumstances presented
must be weighed against each of the aggravating circumstances
separately. We hold that the trial court may not sentence the
defendant to death, unless the trial court finds that all the
mitigating circumstances outweigh the gravity of each of the
aggravating circumstances found and make imposition of death
unjust.
Criminal statutes must be strictly construed. State v.
Thompson, 101 Idaho 430, 437, 614 P.2d 970, 977 (1980). I.C. § 19-
2515(c) refers to "mitigating circumstances" that are to be weighed
against “any aggravating circumstance found." If the legislature
had intended the mitigating circumstances to be weighed against all
the aggravating circumstances found as a group, it would have
referred to “the aggravating circumstances found." The plain
meaning of the statute dictates our conclusion on this issue.
We are unable to accept Jaimi’s argument that the statute
requires the trial court not to impose the death penalty, if the
mitigating circumstances outweigh any one of the aggravating
circumstances found. The plain meaning of the statute is that the
mitigating circumstances must outweigh “any" of the aggravating
circumstances. The word “any" means “whichever one chance may
select." Webster’s Third New International Dictionary, (1969).
For the mitigating circumstance in this case to outweigh “any”
aggravating circumstances found, the mitigating circumstances must
outweigh each of the aggravating circumstances, since chance may
select either one.
- 42 -
APP. 43
In its findings the trial court quoted I.C. § 19-2515 as
stating:
Where the court finds a statutory aggravating
circumstance the court shall sentence the defendant
to death unless the court finds that mitigating
circumstances which may be presented outweigh the
gravity of any aggravating circumstances found and
make imposition of death unjust. (Emphasis added).
In making its decision as to the appropriate sentence to impose,
the trial court said:
After due consideration to all the facts contained
herein, the Court is unable to find any mitigating
circumstances which would overcome or outweigh the
aggravating circumstances and must therefore comply
with the legislature’s mandate. (Emphasis added).
It appears to us that the trial court weighed all the
mitigating circumstances against the two aggravating circumstances
found, collectively rather than separately. For this reason also,
we vacate the sentence and remand for resentencing in accordance
with our decision.
AS TO PART IX C(6): SHEPARD, C.J., BAKES, BISTLINE and
HUNTLEY, JJ., concur.
7. Presumption of death.
Jaimi asserts that I.C. § 19-2515 violates the eighth and
fourteenth amendments because it places the burden on a defendant
to prove the existence of mitigating circumstances that outweigh
any aggravating circumstance that is found. We disagree.
I.C. § 19-2515(c) presumes that a life sentence is the
sentence for first degree murder. Only if at least one of the
aggravating circumstances listed in I.c. § 19-2515(g) is found to
exist beyond a reasonable doubt may a sentence of death be imposed.
It is only then that a defendant has the burden of coming forward
with mitigating circumstances. To the extent that Adamson reaches
a contrary result, we disagree with the Ninth Circuit.
AS TO PART IX C(7): SHEPARD, C.J., BAKES, BISTLINE and
HUNTLEY, JJ., concur.
- 43 -
APP. 44
AUTOMATIC REVIEW UNDER L.C. § 19-2827.
A. Was the sentence imposed under the influence of passion,
prejudice, or any other arbitrary factor?
Jaimi asserts that the sentence of death in this case was
arbitrary because there was no evidence tc support portions of the
Findings that we have reviewed above. To the extent of our
holdings above that there was not sufficient evidence to support
portions of the Findings, we agree. We disagree that there was
arbitrariness because mitigating factors concerning Jaimi’s family
background were not considered. We also disagree that there was
arbitrariness because this was an act of passion rather than a case
involving malice aforethought. That question was submitted to the
jury, and the jury found otherwise.
B. Did the evidence support the findings of a statutory
aggravating circumstance under I.C. § 19-2515?
We have held above that there was no evidence in the
record to Bupport the trial court’s statement that Jaimi could have
saved Marilyn’s life, if he had sought medical attention for her.
We have also held that it was a violation of Booth v. Maryland and
the hearsay rule for the trial court to admit and consider the
letter written by Marilyn’s father. Therefore, it is unnecessary
for us to consider at this time whether the evidence supports a
finding of either statutory aggravating circumstance under I.C.
§ 19-2515(g)(5) and (6). This review can be made following
resentencing, if it is necessary.
c. Was the sentence excessive or disproportionate to the
penalty imposed in similar cases?
In light of our decision to vacate the sentence, this
review is also unnecessary.
AS TO PART X: HUNTLEY, J., concurs.
SHEPARD, C.J., concurs in result.
BAKES, J., concurs in all of Part X, except that part. which
incorporates the analysis of Part IX(C)(2), with which he
disagrees.
BISTLINE, J., expresses no opinion.
- 44 -
CONCLUSION.
For the reasons stated above, we affirm the conviction, vacate
the sentence, and remand for resentencing.
SHEPARD, C.J. concurring in part and dissenting in part.
I concur in the majority opinion except parts IX B and IX C(2), and as to those
portions I disagree and therefore dissent.
The majority holds that during the sentencing procedure a letter written by the
father of the victim was improperly “admitted” in violation of the hearsay rule. This,
although the report of the presentence javestigator, is also hearsay and in fact hearsay
upon hearsay. I believe the focus of the majority opinion, the hearsay rule, is inapplicable.
In my view the letter, while "hearsay," was at worst only duplicative of the oval testimony
of that same witness at the sentencing hearing. That oral testimony taken in open court
was subject to cross-examination. Hence the admission of the letter written by the father
of the victim was at most harmiess error.
The testimony of that witness, both oral and written, in essence related the well
justified fear of the remaining members of the family of defendant Charboneau. In my
view such evidence was particularly relevant since, as indicated by the majority opinion,
the defendant Charboneau had accused his stepdaughter of the killing.
I also disagree with the majority holding that Booth v. Maryland, __ U.S. __ (1987),
requires the exclusion of the Arbaugh letter, and portions of the presentence report as
being a “victim impaci statement." Booth was a jury setting death penalty case rather than
a court setting death penalty case. That alone, in my view, makes Booth distinguishable
from the instant case. Further, Booth was a 5-4 decision by the then membership of the
then Court. In view of the vigorous dissents to Booth and the now changed member-
ship of that Court, I am not persuaded that the now constituted
United States Supreme Court would continue the view espoused in
Booth.
+ eS
APP. 46
LC. § 19-5306 requires a sentencing court to consider the impact of the crime upon
the immediate families of homicide victims. I perceive no corstitutional invalidity of that
statutory scheme since here we consideronly Idaho's mandated court setting of the death
penalty. ;
I disagree with the conclusion of the majority in IX C(2). -In my view the majority
opinion, in its recitation of the facts, supports the language of the trial court in its
sentencing. The testimony of Tiffnie supports the statement of the trial court.
I would affirm the conviction and the imposition of the death penalty.
HUNTLEY, J., concurring and dissenting.
While I support the death penalty and concur in the bulk of the majority opinion,
I respectfully suggest that Idaho's present capital sentencing procedure is unconstitutional
because it removes the jury from its constitutional fact-finding role. Our process violates
the federal constitution for the reasons stated in Adamson v. Ricketts, (Ct. App. 9th Cir.,
December 22, 1988) and violates the Idaho Constitution for the reasons I have articulated
in State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983) and State v. Sivak, 105 Idaho 900,
674 P.2d 396 (1983). I will discuss each analysis in turn.
I.
The Jury as Fundamental to Preserving Democracy
The determination of the issue presented on appeal should be made in the context
of the history and purposes of the right to trial by jury. Our forefathers wisely provided
in Article 1, Section 7 of the Idaho Constitution: "The right to trial by jury shall remain
inviolate ..." They so provided because they recognized that the jury system is the single
most important guardian of the people's right to be protected from oppressive and
overreaching government.
Few Americans realize that the right to jury trial in civil cases has almost been lost
in England. English judges, with the acquiescence of a compliant bar, have totally
eliminated the right to trial by jury in civil cases, except in cases of libel or slander, The
APP. 47
English themselves seem to have forgotten the words of their eminent jurist, Blackstone,
who wrote that trial by jury is:
. the glory of the English law . . . [ijt is the most
transcendent privilege which any subject can enjoy, or wish for,
that he cannot be affected in his property, his liberty, or his
person but by the unanimous consent of twelve of his
neighbors and equals.
Blackstone Commentaries 79.
Some American judges and legislators have similarly lost touch with the following
language in our Declaration of Independence:
[George III] has combined with others to subject us to a
jurisdiction foreign to our Constitution, and unacknowledged
by our laws; giving his assent to their acts of pretended
legislation: . . . For depriving us, in many cases, of the benefits
of trial by jury. . .
The French philosopher and essayist, de Tocqueville, who understood and
appreciated democracy in America with keener insight than any other observer of the
Nineteenth Century, ‘ated that the jury system in America:
. . . places the real direction of society in the hands of the
governed .. . and not in. . . the government... He who
punishes the criminal . . . is the real master of society. All the
sovereigns who have chosen to govern by their own authority
and to direct society, instead of obeying its direction, have des-
troyed or enfeebled the institution of the jury.
Those who believe in strict construction of our Constitution recognize that the
judiciary’s oath to "support and defend the Constitution" requires that we resist the
temptation to enhance judicial power through encroachment into the provinces constitu-
tionally delegated to the jury.
Il.
The Federal Right to Jury Fact Finding in Capital Cases
In Adamson vy. Ricketts, the 9th Circuit stated the issue:
-47-
APP. 48
Adamson also contends that the Arizona statutory scheme for
imposing the death penalty erroneously lists elements of the
offense as factors to be determined by the sentencing judge,
thus depriving him of his right to a jury decision on the
elements of the crime in violation of the Sixth and Fourteenth
Amendments. We agree.
The Idaho sentencing procedure under I.C. § 19-2515 is virtually identical in all
material respects to the defective Arizona statutory scheme. Noteworthy is the fact that
Idaho and Arizona are two of only four states which have the death penalty which have
taken the jury out of the fact-finding process of making the ultimate determination as to
whether the death penalty is appropriate. The fact that thirty-one of the thirty-five states
which have the death penalty utilize the jury in making that determination speaks volumes
as to what our Anglo-American traditions and constitutions require.
As the Adamson court noted:
An aggravating "circumstance" which elevates a murder to a
“death-eligible" murder in the penalty phase, remarkably
mirrors the attributes of an essential element of the offense
during the guilt phase of a trial. . Like an element of a crime,
an aggravating circumstance in the Arizona scheme informs the
prosecutor what facts must be proven to obtain a convicticn.
The circumstance must be proven beyond a reasonable doubt.
The hearing is adversarial, with oral argument and the prose-
cution’s presentation of evidence governed by the usual rules
of evidence. The presiding trial judge must make findings on
the existence or nonexistence of each of the statutory aggravat-
ing and mitigating circumstances. If the judge finds an
aggravating circumstance, the burden then shifts to the
defendant who must put on sufficient evidence of mitigation
or the death penalty will be imposed. A.R.S. § 13-703; see
also Arizona v. Rumsey, 467 U.S. 203, 21 (1984). If the
prosecution is unable to prove the existence of a single
aggravating circumstance, like not proving an essential element,
the defendant cannot be put to death. Cf. Poland v. Arizona,
106 S.Ct. 1749, 17454 (1986) (Court framed the relevant [*39]
inquiry as "whether the sentencing judge or the reviewing court
has “decid[ed] that the prosecution has not proved its case for
the death penalty and hence has ‘acquitted’ petitioners");
Rumsey, 467 U.S. at 212 (where findings of fact at sentencing
hearing were all favorable to defendant, he was "acquitted" of
the death penalty).
pe —
a
APP. 49
Although Idaho's majority in Charboneau, similarly to the judiciary in Arizona and
the prosecutors in both states, urge that a trial court in finding facts as to aggravating
circumstances is exercising a "sentencing determination" as distinguished from finding the
elements of a death-eligible murder, their use of the language in justifying that position
frequently results in Freudian slips which indicate otherwise. In fact, to rule for the state’s
position it is necessary to do exactly what the majority did in this case, that is, engage in
a circular argument, the majority reasoning at pages 28-29:
To accept Jaimi’s argument that the jury must be involved in
determining whether aggravating circumstances exist, we would
have to conclude that the aggravating circumstances listed in
LC. § 19-2515(g) are elements of first degree murder. We are
unable to reach that conclusion. The circumstances listed in
the statute are clearly circumstances to be considered in
sentencing and not elements of first degree murder. It is not
unconstitutional for a judge, instead of a jury, to determine
whether any of the aggravating circumstances listed in the
Statute exist.
The sentence I have underscored is totally circular. Of course, if one can
pronounce that the circumstances are part of sentencing and not part of the elements of
a death penalty crime, then they are not elements of a death penalty crime.
The plain fact is, before a person is eligible to be executed, a finding must be
made that the aggravating circumstance existed. That finding is typically a jury finding,
it was a jury function in Idaho from territorial days through 1977, and is a fact to be
found by the jury in all but four of the states which have the death penalty.
It could of course be argued that my position is circular if I were to take the
underscored sentence from the majority opinion, supra, and restate it as follows:
The circumstances listed in the statute are not circumstances
to be considered in sentencing but are elements of death-
eligible murder.
However, I would submit that the issue is best resolved by recognizing that it is traditional
and accepted jurisprudence that every factor required to prove a crime is considered an
element of that crime. One cannot be sentenced to death without the finding of the
aggravating circumstances having taken place and, thus, they would appear to be essential
APP. 50
elements of the crime rather than some less important procedural matters occurring
during sentencing.
The United States Supreme Court has not passed directly upon the issue presented
in this case, but what it has written about the jury and its function in death penalty cases
indicates that the process would be best served by bringing the four states in line at this
time. ‘
Since the Court has held that death sentences must comport with the community’s
sense of evolving standards of decency and its legitimate desire for moral retribution, an
essential question is whether judges alone can reliably reflect the communal values that
are the source of the constitutionality of capital punishment.
By definition, juries, not judges, are “the cross-section of the community," reflecting
community values. Duren v. Missouri, 439 U.S. 357, 359 99 S.Ct. 664, 666, 58 L-Ed.2d
579 (1979). Only a representative jury assures “meaningful community participation."
Ballew v. Georgia, 435 U.S. 223, 235 98 S.Ct. 1029, 1036, 55 L-Ed.2d 234 (1978) (plurality
opinion). Jurors, unlike judges, are selected to enhance the likelihood that they represent
the whole range of community beliefs and backgrounds, Taylor v. Louisiana, 419 U.S. 522,
531-33 95 S.Ct. 692, 698-699, 42 L.Ed.2d 690 (1975); the different segments of the
community bring to the representative jury “perspectives and values that influence both
jury deliberation and result," id. at 532 n. 12 95 S.Ct. at 698 n. 12. See Humphrey v,
Cady, 405 U.S. 504, 509 92 s.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972). Moreover the sheer
difference in size between a twelve-member jury panel and a single judge may bear
significantly on the validity of a sentencing decision under the Eighth Amendment.
Canvassing expert empirical studies, the United States Supreme Court has concluded that
the likelihood that a decision in a criminal case correctly applies "the common sense of
the community to the facts" increases with the number of decisionmakers. Ballew v.
APP. 51
Georgia, supra, 435 U.S. at 232 98 S.Ct. at 1035.! Twelve individuals are obviously more
likely to reflect the prevailing views of society than one person.
= A jury need not engage in questionabie speculation to determine what community
sentiment would say in a particular case. Its very function is to bespeak that community
sentiment by exercising its own judgment. The jury’s response is society’s response.
Witherspoon v. Illinois, supra, 391 U.S. at 519-20 88 S.Ct.at 1775-1776. “The jury . . . is
a significant and reliable objective index of contemporary values because it is so directly
involved," Gregg v. Georgia, supra, 428 U.S. at 181 96 s.Ct. at 2928. By contrast, judges
cannot themselves speak for community sentiment. If they are to fulfill the demands of
the Eighth Amendment by bringing evolving standards of decency and principles of
retribution to bear in a capital punishment case, they can do so only indirectly since
"{Cjourts are not representative bodies. They are not designed to be a good reflex of a
democratic society. Their judgment is best informed, and therefore most dependable,
within narrow limits." Dennis v. United States, 341 U.S. 494, 525 71 S.Ct. 857, 875, 95
L.Ed. 1137 (1951) (Frankfurter, J. concurring). Unable to represent community
sentiment, a judge must undertake to ascertain it. That is necessarily a difficult task,?
: also amassed considerable empirical evidence to
prove that reducing the number of decisionmakers in a criminal case
impairs the accuracy, fairness, thoroughness and consistency of the
decision, generally to the detriment of the defendant. Ballew v.
, 435 U.S. 223, 232-39 (98 S.Ct. 1029, 1035-38, 55 L.Ed.2d
234) (1978) (plurality opinion).
: Significantly, every state authorizing jury involvement
in capital sentencing appears to require a jury of twelve persons.
, Deciding Who Dies, 129 U.Pa.L.Rev. 63, n. 298.
Judges may theoretically have access to community
sentiment through social contact, as well as through such sources
as polls, editorials, journals, and newspaper reports. Cook,
Public Opinion and Federal Judicial Policy, 21 Am.J.Pol.Sci. 567,
576 (1977). Unfortunately, these sources greatly overstate the
willingness of members of the community to impose the death penalty
on specific defendants for specific crimes. Research on jury
behavior reveals that jurors are substantially more lenient when
trying an actual case and sitting through deliberations than they
will otherwise indicate. Aeisel & Diamond, The Effect of Peremp-
tory Challenges on Jury and Verdict:
-51-
APP. 52
made even more difficult because judges--whether considered in terms of race, sex, or
economic class--do not reflect the wide range of backgrounds or beliefs within the
community.4 "[T]he reluctance of juries in many cases to impose the sentence [of death]
may well reflect the humane feeling that this most irrevocable sanction should be reserved
fora small number of extreme cases," Gregg v. Georgia, supra, 428 U.S. at 182 96 S.Ct.
at 2929. For a variety of reasons, judges appear less likely to reflect that same reluc-
tance.»
District court, 30 -Stan.L.Rev. 491, 511-12 (1978) (shadow juries
drawn randomly and not subject to peremptory challenges vote guilty
far more often than real juries; probably because the defendant's
liberty was not in their hands). People who favor the death
penalty in the abstract are more lenient when presented with
descriptions of actual cases.
: As of 1979 judges in state courts of general trial
jurisdiction earned salaries ranging from $24,000 in Oklahoma to
$54,205 in California, with a mean of approximately $41,000. Nat'l
Center for St. Cts., Survey of Judicial Salaries 1 (Sept. 1979).
As of 1977 in these general jurisdiction courts, only 2.5 percent
of the 5,155 judges were women, and 20 states had no women at all
on these courts. Cook, Women Judges: The End of Tokenism, in Women
in the Courts, 84, 87- 88 (Nat'l Center for St. Cts. 1978). It
appears that as of 1977 only 2.6 percent of the judges on these
general trial courts were black. G.W. Crockett, Number and
Distribution of Black Judges (March 1977) (unpublished charts on
file with Nat'l Center for St. Cts.). Finally, the rigorous
educational requirements for admission to the bar make it in-
evitable that the average educational attainment of judges will far
exceed that of the community in general.
’ Kalven and Zeisel's classic report shows that judges and
juries disagree in a substantial number of cases. In a study of
3576 trials, judge and jury reached the same decision about a
criminal defendant only 72 percent of the time. H. Kalven & H.
Zeisel, , 68 (1966). In their specific study of
the death penalty, the authors report that judge and jury disagreed
about the imposition of a death sentence in 19 percent of the
cases, id, at 436. To view the results yet another way, in those
cases where one or both recommended death, judge and jury disagreed
60 percent of the time. In those cases in which either the judge
or jury or both would have voted for the death penalty, in 40
percent, judge and jury agreed, and in 40 percent only the judge
would have voted for the death penalty, yet in only 20 percent of
the cases would the jury but not the judge vote for execution.
Thus, the juries were essentially twice as lenient as the judges.
Ibid. As a United Nations Report concludes:
-52-
APP. 53
As a means of reliably reflecting community sentimeni on capital punishment,
bringing lay jurors into the sentencing process "places the real direction of society in the
hands of the governed . . . and not in. . . the government.” Powell, Jury Trial of Crimes,
23 Wash. & Lee L.Rev. 1, 5 (1966) quoting de Tocqueville, Democracy in America 282
“(Aj)mong the leading authorities in penal
science, the supporters of abolition appreci-
ably outnumber those who favour the retention
of capital punishment. The specialists of the
social sciences, penologists, doctors and
writers on social science or criminology are,
in their great majority, abolitionists. The
supporters of capital punishment, apart from
a number of political figures and persons
holding high public office, are generally
jurists with a traditional training and jud-
ges."
United Nations, Dept. of Economic and Social Affairs, Capital
Punishment (ST/SOA/SD/9-10-64) (1968).
The reason for these differences may lie in the greater
reluctance of judges to depart from what they perceive to be the
letter of the law. See, e.g., Eddings v. Oklahoma, 455 U.S. 104,
102 S.Ct. 869 71 L.Ed.2d 1 (1982). Kalven and Zeisel discovered
in more than one judge “a kind of envy of the freedom of the jury
to reach a decision which he as a judge could not reach" Kalven
, at 428. The judge's role as a strict enforcer
even restricts his discretion in sentencing decisions where that
discretion would seem to be wholly lawful. As one judge said of
draft evasion cases: “I am opposed to conscription. I also believe
that the war in Vietnam is both immoral and impractical. My
sentencing policies are based upon the fact that as long as law
exists, it should be imposed to effectuate its intent and purpose."
Cook, Sentencing Behavior of Federal Judges: Draft Cases--1972, 42
Cinn.L.Rev. 597, 623 (1973). At the same time, Cook's study also
reveals that as judges (unlike individual jurors) accrue experience
in a given type of case, their sentencing settles into distinct and
regular patterns of severity or leniency, id., at 602-03, so that
the judge's first decision whether a person lives or dies may
inspire far more deliberation and consideration than subsequent
decisions. For individual jurors, however, the gravity with which
they approach their decisions in capital cases will rarely be
affected by suck routinization.
Florida studies cited in Gillers, supra, note 2, at 67-68 n.
318, report that sentencing judges were significantly more inclined
to impose death than the juries that recommended sentences to then.
The studies also show that the judges' decisions seem to correlate
with the race, sex, and social background of the defendant and
victim, while the juries showed no evidence of any such biases.
-53-
APP. 54
(Reeve Tran.1948). Quintessentially, the right to a jury “is granted to criminal defendants
in order to prevent oppression by the government," Duncan v. Louisiana, 391 U.S. 145,
155 88 S.Ct. 1444, 1450, 20 L-Ed.2d 491 (1968), and to protect against “arbitrary action"
by the compliant, biased, or eccentric judge. Jd. at 156 88 S.Ct. at 1451. It “reflects a
fundamental decision about the exercise of official power--a reluctance to entrust plenary
powers over the life and liberty of the citizens to one judge or to a group of judges."
Ibid. ® These concerns are even more compelling where life stands immediately in the
balance.
Il.
The Idaho Constitutional Mandate
The Idaho Constitution, as first approved on July 3, 1890, and as it reads today,
provides in Art. 1, § 7:
“Right to trial by jury. -- The right of trial by jury shall remain inviolate .. . ."
That right of trial by jury as it existed at the time our constitution was adopted, provided
* . The Profitt plurality's speculation that “judicial
sentencing should leei, if anything, to even greater consistency
in the imposition ~° che trial court level of capital punishment,
since a trial judge is more experienced in sentencing than a jury
and therefore is better able to impose sentences similar to those
imposed in analogous cases," Proffitt v. Florida, 428 U.S. 242, 252
96 S.Ct. 2960, 2966, must, of course, be read in the context in
which it was made: as a statement of the probable result of the
Florida system in which an advisory jury sentence may be mitigated
at the discretion of the trial judge, or increased from life
imprisonment to death only where a life sentence would be mani-
festly unreasonable. Id. at 249-50 96 S.Ct. at 2965-2966.
Moreover, empirical evidence suggests that individual state trial
judges are not likely to achieve consistency among death sentences
meted out across the state. Gillers, supra, note 2, at 58-59.
Cook, , 21 Am.J.Poli.Sci.
567, 623 (1977). Rather the state can better take advantage of the
purported ability of judges to ensure consistency in capital
sentencing, at no cost to the defendant's right to jury sentencing,
by relying on the automatic appeal procedure by which this Court
must review each death sentence in comparison to other cases
involving similar crimes or defendants. I.C. § 19-2827. See,
, 428 U.S., at 204-06 96 S.Ct. at 2939-2940; id,
at 211-12, 96 S.Ct. at 2942-2943 (White, J., concurring).
-54-
Se > a
APP. 55
for jury participation in the capital sentencing process. Section 17 of the Criminal
Practice Act of 1864 provided in pertinent part:
[A]nd the jury before whom any person indicted for murder
shall be tried, shall, if they find such person guilty thereof,
designate by their verdict, whether it be murder of the first or
second degree; but, if such person shall be convicted on
confession in open court, the court shall proceed, by
examination of witnesses, to determine the degree of the
crime, and give sentence accordingly. Every person convicted
of murder of the first degree, shall suffer death, and every
person guilty of murder in the second degree is punishable by
imprisonment in the territorial prison for a term not less than ~
ten years, and which may be extended to life.
Section 17 was carried over verbatim into Revised Statute § 6563 (1887) enacted two
years before the adoption of the Constitution.
In other words, the jury, by determining whether the party was guilty of either first
or second degree murder, determined whether or not the death penalty would be
imposed.
In Blue Note Inc yv. Hopper, 85 Idaho 152, 157, 377 P.2d 373 (1962), we stated:
The provisions of the constitution pertaining to the right to
trial by jury are construed to apply as it existed at the date of
the adoption of the constitution.
Accord. Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351 (1951); Christensen v.
Hollingsworth, 6 Idaho 87, 53 P. 211 (1898); Comish v. Smith, 97 Idaho 89, 540 P.2d 274
(1975).
Idaho continued to employ the jury in the capital sentencing process during all of
the intervening years until the Supreme court of the United States struck down the death
penalty statutes of most states through its 1972 decision in Furman v. Georgia, 408 U.S.
238, 92 S.Ct. 2726, 33 L.Ed.2d 346.
At the time of Furman, I.-C. § 18-4004 read:
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
-55- —
APP. 56
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 legislature deleted the jury function from
LC. § 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. I.C. § 18-4004 was amended by striking out the words
as lined out below:
18-4004. PUNISHMENT FOR MURDER.-- Every person
guilty of murder in the first degree shall suffer death erbe
; 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.
The 1973 Amendment restored the law to its 1864 standing.
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
legislature 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 and added the reference to I.C. § 19-2515:
18-4004. PUNISHMENT FOR MURDER. Every Subject to
the provisions of 19-2515, Idaho Code, every person guilty of
murder ie of the first degree shall suffer be panished by death
or by imprisonment for life. Every person guilty of murder in
of the second degree is punishable by imprisonment inthe
stete-prison not less than ten (10) years and the imprisonment
may extend to life.
Except for four stares which entirely abolished capital punishment in the nineteenth
century, every American jurisdiction has at least at some time employed jury sentencing
in capital cases. McGautha v. California, 402 U.S. 183, 200 n. 11, 91 S.Ct. 1454, 1463 n.
11, 29 L.Ed.2d 711 (1971). During a period of over a century, beginning in 1838,
jurisdiction after jurisdiction that retained the death penalty replaced its mandatory capital
punishment law with discretionary jury sentencing, Woodson v. North Carolina, 428 U.S.
-56-
APP. 57
280, 291-92, 96 S.Ct. 2978, 2985, 49 L.Ed.2d 944 (1976) (plurality opinion). By the time
of the Furman decision in 1972, Colorado was the only state in the nation to impose
capital punishment without jury involvement in the sentencing process.
Despite the long history at common law and under statutory law of the states
throughout this nation of involving jury in the capital sentencing process, the Idaho
legislature in the present statute enacted in 1977 totally excluded the jury from its tradi-
tional function. The legislative history shows that the legislature was not even presented
with a bill which provided for jury participation. The only bill presented, was one drafted
by the attorney general, Senate Bill 1082, which was presented to the legislature with the
foliowing statement of purpose:
RS 1954
S 1082
STATEMENT OF PURPOSE
Only a few years ago, the United States Supreme court made
new "rules" concerning the imposition of the death penalty for
serious crimes. So that we conformed with this U.S. Supreme
Court interpretation of the federal Constitution, the Idaho
Legislature enacted in 1973 our present death penalty Section
18-4003 and 18-4004, Idaho Code.
Then, last year, the United States Supreme court again
changed the rules relating to capital punishment--after many
states, like Idaho, had acted in response to its previous
decision. The Court, in five cases, set forth new, more
definitive rules concerning sentencing where the death penalty
was sought to be imposed.
The _purpose_of _this_bill_is_to_codify into Idaho _law these : by tl
Court decisions on capital
punishment so that we will conform with this latest expression
of the law. (Emphasis supplied.)
The statement of purpose is misleading insofar as it suggests that the Supreme Court
decisions mandated the removal of the jury from its traditional powers and functions; the
United States Supreme court never at an earlier time or in this “latest expression of the
law" required jury non-involvement.
-57-
APP. 58
Since jury participation in the capital sentencing process is part of the right to “trial
by jury" as guaranteed inviolate by Art. 1, § 7 of the Idaho Constitution, | would reverse
and remand for proper sentencing and would urge the legislature to amend the statutes
to provide for proper jury participation in order that future capital punishment cases will
not be subject to this serious defect.
IV.
Interim Solution by District Judges
Since this Court has not seen fit to bring the Idaho sentencing process into a
constitutional posture, and since the curren’ ~*ssion of the Idaho Legislature has not even
formally taken up the effect of Adamsor we are undoubtably going to be faced with a
year or more of uncertainty while we await the review of Adamson by the United States
Supreme Court on Certiorari. Should the 9th Circuit be affirmed, then all death sentence
cases in Idaho which have been imposed in that interim period will have to be reversed
and remanded for resentencing, if not a total new trial. I believe there is a method
whereby our Idaho district judges, exercising their intelligence and their plenary power,
can bring order to this chaos and validly complete capital cases. It has always been the
law of Idaho that district judges have the power to call for advisory juries in cases where
juries are not mandated by statute or common law. Our district judges could, Gn their
own motion, adopt the procedures of the thirty-one other states by bifurcating the trial
and bringing the jury in as an advisory jury at the sentencing phase. So that the jury
would be fully apprised of the seriousness of its undertaking, the district judge would
inform the jury that he would not impose the death penalty unless they so recommended.
The district judge would, of course, retain his traditional power under Idaho law to
impose a sentence less than death if he deemed such reduction appropriate. By engaging
in this procedure, a district judge would not only be doing a service to the taxpayers by
way of judicial economy in obviating the need for retrials or resentencing, but additionally
the court would be properly serving both society and the defendant by protecting the
constitutional right to trial by jury.
- 58 -
APP. 59
BISTLINE, J. dissenting. :
In this capital murder case, where the guilt of the accused would be determined
by a jury, and where a guilty verdict might be of murder in the first degree, murder in the
second degree, or voluntary manslaughter, defense counsel's first strategic tactic was to
utilize the results of a SEANCE conducted by a spiritualist; from the report of this seance
counsel unquestionably believed that he had received the “true facts" concerning the
homicide caused by gun shot wounds. Armed with the “true facts," counsel then devoted
his talents toward convincing the prosecutors that the real culprit was not defendant, but
the deceased’s daughter. Having wholly succumbed to relying entirely on that hypothesis,
counsel not only forewent making any of the ordinary preparations for a defense, but,
even more damaging to the defendant, exposed him for uncounseled interrogation by
prosecuting authorities. :
Generally, a person’s willingness to learn life’s past or future secrets from a
spiritualist, fortune-teller, a seer or even a Ouija board, would be of no concern.
However, if Charboneau’s then counsel was rendering “effective assistance of counsel," as
the majority today holds, then the sixth amendment’s guarantee of right to counsel has
flown the coop. As Chief Justice Shepard has written, there is no insurance that
defendants will receive a perfect trial -- there is only the guarantee of a fair trial. A fair
trial cannot be had if a defendant is precluded from being represented by counsel who is
knowledgeable and competent. Such was not the circumstance here. Worse yet, the
defendant appears to have had no outside counselling or advice of any kind which would
have informed
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