# Opposition Brief — Idaho v. Charboneau

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 923

## Text

4
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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.

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53, April 4, 1989, as amended April 18, 1989.

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Letter To Judge Becker From Victim's Father

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18

80

84

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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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19-5306(1)(b) & (3)

SUPREME COURT RULE

IDAHO CRIMINAL RULES

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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 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 him that he was being inadvertently escorted down the primrose path. The
defendant could have fared no worse had he been in charge of his own case. The record
makes it readily apparent that defense counsel simply was nct aware that his efforts were
bizarre, and, equally unaware that counsel’s chosen course of conduct was extremely

prejudicial to his client’s constitutional right to remain silent.

- 59 -

APP. 60

This Court has properly recognized that the Idaho Constitution, where appropriate,
can provide more protection than its federal counterpart.” However, the Idaho Supreme
Court cannot, through the magic wand of a judicial decree, disavow or disregard the sixth
amendment protections guaranteed by the Constitution of the United States. Unless and
until the federal courts in fAabeas corpus or post-conviction relief proceedings hereafter
intercedes, the ineffective assistance of counsel doctrine in this jurisdiction has today been
rendered meaningless.”

II

In addition, the majority has reacted to the well-reasoned decision of the en banc
Ninth Circuit Court of Appeals in Adamson v. Ricketts, F.2d (filed
December 22, 1988), by rejecting it even before there has been any review by the
Supreme Court of the United States. In that manner, Charboneau and other capital
defendants similarly situated are deprived of the fundamental right to jury sentencing
guaranteed by both art. 1, § 7 to the Idaho Constitution and the sixth amendment to the
Constitution of the United States. These concerns will be addressed in turn.

A. INEFFECTIVE ASSISTANCE OF COUNSEL

Initially, the majority sets the stage for this aberration by failing to understand and
utilize the proper standard of review. Under the seminal case of StricKland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 674 (1989), a criminal defendant must establish:

(a) counsel’s deficient performance, and (b) prejudice. With this much the majority is in

. See State v. Henderson, 114 Idaho 293, 756 P.2d 1057 (1988) (Idaho Constitution

prohibits use of roadblocks designed to apprehend drunk drivers absent warrant or
probable cause); State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988) (Idaho Constitution
prohibits use of pen registers on citizens’ telephones absent warrant or probable cause).

° Article 1, § 3 of the Idaho Constitution provides: "The state of Idaho is an .
inseparable part of the American Union, and the Constitution of the United States is the ws
supreme law of the land."

° I concur in Parts III, 1V, V, IX(B)(1) (with explanation), IX(B)(2), IX(C)(2), .
IX(C)(3), IX(C)(6), IX(C)(7) and dissent to Parts I, Il, VI, IX(A), IX(C)(1), IX(C)(4) and
IX(C)(5). I express no opinion as to Parts VII, VIII, X and XI, because a proper
resolution of this case would render those issues entirely moot.

- 60 -

APP. 61

accord. However, under the prejudice prong, it does not have to be shown that without
counsel’s error the defendant would have otherwise earned an acquittal. The heavy
burden of such an outcome-determinative test was specifically rejected by the Supreme
Court in Strickland. Although such a standard is appropriate for assessing a motion for a
new trial based on newly discovered evidence, in regard to ineffective assistance of counsel
claims, the defendant need only establish ".-. . that there is a reasonable probability that,
but for counsel’s unprofessional error, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” 104 S. Ct. at 2068 (emphasis added).

Thus, the majority rejects Strickland’s mandate and affixes to Charboneau the burden
of proving the result of the trial would have been different absent the replete errors of
commission and omission attributable to defense counsel, specifically placing all reliance
on the results of the seance and at the same time making not even a cursory attempt at
preparation for an extremely crucial trial!

Not only does the majority fail to comprehend the proper standard for evaluating
ineffective assistance of counsel claims, it also shows little regard for the record. Without
question, counsel Bennett relied upon the results provided from a seance in charting the
course for his representation of Charboneau. The prosecutor who originally handled this
case for Jerome County testified to his knowledge that Bennett contacted his niece in
California, a clairvoyant, that through a seance the niece was able to "contact" the victim,
Marilyn Arbaugh, that the spirit of Marilyn stated that her murderer was not Charboneau,
but her daughter Tiffnie, and that the fatal shot was from a different gun not belonging
to Charboneau. The prosecutor's testimony:

Q. Will you, please, state your full name for the record.

A. Dannis M. Adamson.

‘0 The majority opinion states: "It is Charboneau’s burden to prove that the
result would have been different, if he had not testified at the hearing on the motion to
dismiss.” Slip Op. at 12 (emphasis added). Such a burden is unrealistic. Absent a retrial,
that theorem is unsusceptible of proof. The fact is that defense counsel did make the
decision to have Charboneau testify.

tin

APP. 62

And where do you live?
I live seven north, three east of Jerome.

Okay. And your occupation, please?

Q

A.

Q

A. __ I'm an attorney.
Q How long have you been an attorney?
A. Since 1979.

Q

, All right. I understand you were prosecuting attorney here in
Jerome for a while; is that correct?

A. That’s correct. For the last part of 82 and all of '83 and 84.
Q. Okay. Dan, are you familiar with the Jamie Charboneau case?
A. I certainly am.

Q. And how is it that you’re familiar with that case?

A. I was the prosecuting attorney for Jerome County representing

the State of Idaho in State of Idaho versus Jamie Charboneau; three,
three different counts: Grand theft, rape, and first-degree murder.

Q. Okay. And I understand that the Attorney General’s office
was appointed to prosecute that action sometime during the pro-
ceedings; is that right?

A. Okay. It became obvious that the trial was not going to take
place before I left office because I did not rerun for the prosecutor’s
position; and when that decision was made, that’s when the Attorney
General’s office came in, yes.

Q. All right. Dan, did you ever have any private conversations
with Golden Bennett concerning this case?

A. Yes.

Q. Okay. And when did you have these particular conversations?

-@-

APP. 63

A. Well, we had various conversations ranging from, from when
he was first appointed; but I talked with him regularly before the
preliminary hearing, before Mr. Charboneau was bound over to
District Court, conversations on a regular basis.

Q. Dan, you said there was one particular theory that he elicited
to you in a conversation. Where did it take place?

A. Well, again bits and pieces, even in the hallway, but primarily
I think in my office and, the prosecutor’s office.

Q. Who was present during that particular conversation?

A. Well, I’m almost certain [defense investigator] Mr. Coakley was
and Golden Bennett and myself.

Q. Okay. Could you relate to the court what the substance of
that conversation was?

A. Well, basically, it was: You've got to bring in the .22 revolver
pistol. You have to change the focus of your investigation and take
the heat off of my client and place it on Tiffy, Tiffnie Arbaugh,
because she’s the one that shot the, made the final shot into her
mother.

And my question was, well, how do you know all this? And
frankly, | expected him to say that his client told him so, and in fact
in some of the earlier suggestions as to how this crime had happened,
he had gotten those from Mr. Charboneau. But this particular
instance dealt with the fact that he had contacted his niece or cousin
or something like that in California, that she conducted a seance and
that she had communicated with Marilyn Arbaugh, the victim in the
case, and that Marilyn had indicated how much she loved Jamie
Charboneau, and that even though she was upset that her daughter
had shot the final shot, she also forgave her because she knew how
much she had hurt her, et cetera, et cetera, et cetera. And it was
kind of a long drawn-out statement as to what this dead person had
said through the seance, trying to convey her love to Jamie
Charboneau, and forgiving of her daughter for shooting her.

Tr., Vol. 23, Post-conviction Relief Hearing, 57-62.

_ -

APP. 64

Mr. Bennett's secretary also testified. She stated that much of the pre-trial defense
was concentrated on summoning assistance from the world of the supernatural. Her
testimony on post-conviction proceedings was corroborative of the prosecutors.

Q. Okay. Are you familiar with a Jamie Charboneau case?
A. Yes.
Q. How is it that you're familiar with that?

A. Well, | worked for Golden for about four months in ’84 and
the first part of '85 when he was defending Jamie.

Q. Okay. Golden was representing Jamie during this entire time;
is that correct?

A. Yes.

Q. Did you ever witness any conversations between Golden
Bennett and his investigator James Coakley?

A. Yes.

Q. Okay. And where were these conversations? Where did they
take place?

A. In Golden’s office.

Q. All right. And who was present at the time?

A. Golden, Jim Coakley, Golden’s daughter-in-law Jean, myself,
Peggy, I can’t tell you who was there every, you know, for every
conversation, but people that work in the office.

Q. Okay. When did these conversations take place?

A. Well, they’d -- the whole time that I was working there on
several occasions.

Q. Were they frequent, all the time? Were they now and then?
What were they?

A. They were frequent. That was the case that, Golden’s big case
he was working on when I was there. They talked about it a lot.

- 64 -

APP. 65

Q. Okay. And would you relate to the Court the substance of
these conversations?

A. Well, they were planning their strategy, what, how they were
going to try to help Jamie with the information that Jim Coakley was
ishing Goiden.

Q. And what was that? _

A. Well, he was trying to contact the deceased's spirit on several
occasions. He said that it was an unfriendly spirit. And then one
day we came to work and he said that he’d contacted her the night
before and as far as 1 know that’s what Golden was basing his
information on.

Q. Okay. Did they talk about clairvoyants during this period of

time?

A. Yes.
Q. Often?
A. Yes.

Q. Okay. And did you hear Golden Bennett talk about clair-
voyants?

A. Yes. Not as much as Jim did, but, yes.

Tr., Vol. 23, Post-conviction Relief Hearing, 163-65.

Defense counsel was preoccupied with using the results of a seance in preference
to utilizing the traditional measures relied upon by defense lawyers: fact investigation
coupled with legal research. Moreover, rather than independent investigation of the
circumstances of the case, defense counsel approached the Attorney General's office in
an attempt to persuade the State to investigate. As defense counsel explained in his
deposition:

My purpose in going to Boise was to convince the attorney
general’s office that an independent investigation was needed, and
that it wouldn’t be done properly in Jerome County, and I had

- T

APP. 66

. i and it just
seemed like the appropriate way to go at the time.

ee of Golden Bennett at 27 > mond Tine. estan of. seneating the

ton seijetiindl iid adie dictate The lack of investigation and
preparation for trial is also shown by the testimony of Randy Stoker, the attorney who
ultimately, and on short notice, represented Charboneau at trial:

I picked up that case in a posture where there had been virtually no
investigation done, there were no readable, credible witness state-

ments in the file. There were no jury instructions prepared. Jaimi
had never been examined by a psychiatrist or psychologist. There was
ballisti hired, TI hological testi

from a defense standpoint. There was nothing in terms of what I

would consider assistance to me at that point in the file that I was
handed from his previous counsel.
Vol. II, Post-conviction Relief Hearing at 27 (emphasis added).
The American Bar Association’s "Defense Function" upon which the majority heavily
relies, provides that:

ott 0 ie)

It is the duty of the lawyer to conduct prompt investigation of
the circumstances of the case and to explore all avenues leading to
facts relevant to the merits of the case and the penalty in the event

of conviction. The investigation should always include efforts to

secure information in the possession of the prosecution and law
enforcement authorities. The duty to investigate exists regardless of

the accused’s admissions or statements to the lawyer of facts con-
stituting guilt or the accused’s stated desire to plead guilty.
Standard 4-4.1 (1982) (emphasis added). While the standard makes clear that the defense
attorney should try to secure information and evidence through discovery, an independent
investigation is also required. Otherwise, if it be true that the prosecution can properly
be reli fe) i igati o adv: i
of our criminal system of justice breaks down. As observed in Strickfa , "The benchmark
for judging any claim of ineffectiveness must be whether counsel's conduct so undermined
the proper functioning of the adversarial process that the trial cannot be relied on as

_ having produced a just result." 466 U.S. at 686, 104 S. Ct. at 2064 (emphasis added).

‘a.

hor |

APP. 67

In Kimmebnan v. Morrison, 106 S. Ct. 2574 (1986), the Supreme Court was asked
whether a defense counsel’s failure to file a timely suppression motion, due to a lack of
investigation, constitutes ineffective assistance of counsel. The Court held that it did:

The justifications Morrison’s attorney offered for his omission
betray a startling ignorance of the law -- or a weak attempt to shift

blame for inadequate preparation. ‘[Cjounsel has a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.’ [citations] Respondent’s lawyer
neither investigated, nor made a reasonable decision to investigate,
the State’s case through discovery. Such a complete lack of pretrial
preparation puts at risk both the defendant’s right to an “ample
opportunity to meet the case of the prosecution,” [citations] and the

106 S. Ct. at 2588-89 (citations omitted) (emphasis added).

Defense counsel not only failed to investigate, but he also subjected his client to
examination by the State for no legally recognizable purpose. Moreover, at defense
counsel’s invitation the State was allowed to interrogate Charboneau for two hours, without
defense counsel being present. The scope of the questioning was not limited and
Charboneau was left to fend for himself. The majority readily and properly concedes that
"Charboneau divulged a great many more particulars concerning the alleged kidnapping,
theft and murder." Slip Op. at 6.

Defense counsel also called Charboneau to the stand to testify at the preliminary
hearing, thereby waiving the constitutional right to remain silent. The majority says of this
strange affair, "[w]hile 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." Slip Op.
at 12. The majority is only half right in stating that premise. True, unsuccessful but
reasonable tactical decisions should not be the basis for finding ineffective assistance of
counsel, but only so long as the strategic choices have some plausible basis in the record.
As this Court’s opinion in Aragon v. State (Aragon 11), 114 idaho 758, 761, 760 P.2d 1174,
1177 (1988) stated: "When counsel’s trial strategy decisions are made upon the basis of
inadequate preparation, ignorance of the applicable law, or other shortcomings capable

- 67-

APP. 68

of objective evaluation, the defendant may very well have been denied effective assistance
of counsel" (quoting State v. Tucker, 97 Idaho 4, 10, 539 P.2d 556, 562 (1975) (emphasis

added in Aragon II)).
This case stands in stark contrast to Aragon 11, where the ineffective assistance

contention lay in failing to call witnesses io bolster the accused’s character. The decision
not to call character witnesses was reasonable, so it was held, because counsel, associate
counsel and an investigator had interviewed Aragon’s family and people that knew him;
thereafter, counsel made the informed decision that the defense would not be helped by
calling such persons. 114 P.2d at 763, 760 P.2d at 1179. Unlike Aragon 11, however,
defense counsel in the instant case engaged in no independent factual investigation upon
which to base principled strategic decisions.

The majority concludes that defense counsel’s performance was effective because
nothing contained in the American Bar Association’s standards prohibits counsel from
placing the accused on the stand as a witness at the preliminary hearing. However, as the

High Court made clear in Strichtand:

Prevailing norms of practice as reflected in American Bar Association
standards and the like, eg, ABA Standards for Criminal Justice 4-1.1

to 4-8.6 (2d ed. 1980) (‘The Defense Function’), are guides to
determining what is reasonable, but they are only guides. No
particular set of detailed rules for counsel’s conduct can satisfactorily
take account of the variety of circumstances faced by defense counsel
or the range of legitimate decisions regarding how best to represent
a criminal defendant.
104 S. Ct. at 2065 (emphasis added). Indeed, a case may arise where it is in the
defendant's interest to testify at the preliminary hearing. However, in the case at bar no
reason for calling Charboneau to testify has surfaced, other than as it might somehow
induce the Attorney General to investiga ¢ the case with the thought in mind that the
murderer was not Charboneau.
Subiecting the unrepresented defendant to the State’s questioning on two occasions

\
was not enough. Defense counsel also put Charboneau on the stand when the Motion to

APP. 69

Dismiss was heard. Defense counsel, however, was certain that the Motion to Dismiss
would not be granted. His purpose was only to embarrass the prosecution into conducting
a more thorough investigation along the aforesaid avenues. However, anything
Charboneau might say in such circumstance later could then be used to impeach him at
trial if he were to testify. One expert witness, practicing attorney and formerly a judge,
Lloyd Webb, stated that defense counsel's decision to place Charboneau on the stand in
order to embarrass the prosecution was: ‘

ert

M)“4tiiat

ncompetency an nderstand M Be
conviction Hearing at 56 (emphasis added).
Thus, Charboneau was denied effective assistance by the defense counsel's:
(a) placing unbridled reliance on the report given to him as to the results of the seance
in formulating the "defense" which he conducted; (b) failure to investigate the facts of the
case, proceed with discovery, and generally make the necessary preparations for trial -- as
against merely relying on the prosection to investigate the case along the lines defense
counsel outlined, thereby undermining the adversarial nature of the criminal justice system;
and (c) allowing the state the unfettered opportunity to interrogate Charboneau without
counsel being present; and (d) calling Charboneau as a witness at the preliminary hearing
and hearing on the motion to dismiss absent any plausible basis for so doing.

: B. FAILURE TO STRIKE EVIDENCE OF
GRAND THEFT AND KIDNAPPING CHARGES

The majority holds that evidence of the felony charges of kidnapping and grand
theft was properly not stricken, even though both charges were dismissed at the close of
the prosecution’s case for lack of jurisdiction. It is said that such evidence shows
Charboneau’s motive or intent under I.R.E. 404(b). The majority opinion supplies the trial
court’s reasoning for not granting the motion: "The court denied the motion on the ground
that the evidence would have been admissible in the murder case in any event." Majority
Slip Op., p.7. On page 24 of the Majority Slip Opinion is added to the foregoing this

sentence: "This thing occurred over a period of some ten or twelve days and I think the

- 69 -

APP. 70

jury needs the benefit of all that testimony in order to properly arrive at a decision,
whichever way they decide."

The majority then disposes of this extremely crucial evidence by recounting the facts
of an earlier (1979) case which -- wholly unlike this case -- was in large part based on
circumstantial evidence. A burned torso, minus head and legs, was discovered, and
authorities made a tentative identification that the corpse was the remains of one Ron
Needs. This led to the arrest of Sally Needs, and thereafter a trial on a clarge of murder.
The prosecution proved the identity of the corpse to the satisfaction of the jury by
circumstantial evidence.

Sally Needs was convicted based on the testimony of a witness who in mid-June
saw Sally Needs arm herself with two butcher knives, and brandish them at Ron Needs,
who disarmed her. The witness testified that Mrs. Needs threatened that she was going
to get him -- also then throwing gasoline on him. On appeal Sally Needs contended that
the trial court erred in allowing in the testimony of the assault, which was established as
having been two weeks prior to Ron Need’s death. This Court held that it was noi error
to allow the testimony, the rationale being that "[s]uch evidence is clearly relevant to her
motive and intent as well as to shed considerable light on her mental attitude towards Ron
Needs." 99 Idaho 883, 893, 591 F.2d 130, 140 (1979). Although that language is somewhat
overbroad, it met with my approval then, and continues to. That was an unusual set of
circumstances.

Here we have a homicide which took place with witnesses in the area. What I
remember best in the Ngeds case is the statement that "Idaho courts do follow the general

rule that evidence of other unrelated criminal activity is inadmissible at trial to show

criminal propensity on the part of the accused." 99 Idaho 883, 892, 591 P.2d 130, 139
(1979) (emphasis added).

Here, the two charges of kidnapping and a grand theft, neither related to the
homicide, were both alleged to have taken place when Charboneau on June 21, 1984,
entered his former wife’s car and drove off with her and the car allegedly keeping her

captive until she escaped. The car was alleged to be valued at over $150.00.

«

APP. 71

Those two unrelated charges were not filed in connection with the July 1 homicide
charge which was later file? on July 2, 1984. It was defense counsel who conceived that
strategic “tactic” of promoting a single trial of all three charges. As pointed out in Mr.
Fuller’s opening brief in this Court, the district court attempted to dissuade defense
counsel from such foolishness:

[T]he Court acknowledged that it was improper to consolidate the
three criminal trials and that Jaimi was going to be prejudiced. He
stated:

And I might further add, if Mr. Charboneau will recall, I did
my level best and _with counsel to separate these
trials. I didn’t want them all held together; I wanted to
separate the one from the other. And Mr. Charboneau and
counsel wanted it held together. So that’s one of the
problems we run into by holding it together. Objection
overruled.

Trial Tr., Vol. II, p. 375, L. 4-11 (emphasis added).

Upon the State resting its case, Mr. Stoker moved to dismiss
the kidnapping and grand theft charges on jurisdictional grounds that
had been discussed early in the trial with the trial court judge. Both
charges were dismissed because jurisdiction was wholly lacking. Then
Mr. Stoker attempted to strike the evidence concerning the issues
involved in the grand theft and kidnapping counts that he had tried
to exclude earlier. In response to Mr. Stoker's Motion to Strike, the
Court stated:

There is no evidence whatsoever that all or any part of the
crime occurred in Jerome County, and that would -- jury
would have to speculate as to that, it would be pure
speculation. That’s why I’m taking it away from them .. . I
am concerned about the defense’ motion to instruct the jury.
(Motion to Strike) I think that 1 would have to so instruct
them, because -- and here is another part -- this is the thing

I turned down that Motion I don’t know on how many
occasions. Finally, at the last session when you were together
where the state joined and the defense joined, | allowed it to

go through. [t bothers me that the jury does have in their
minds ail of the other evidence. . . and I don’t know if I can

~ o

APP. 72

Trial Tr., Vol 6, p. 1361, LL. 20-25, p. 1352, LL. 1-15.

When one considers all of the facts, the bottom line is that the
defendant was prejudiced and could have received a verdict other
than first degree murder. in fact, there was an extremely good
possibility that the defendant could have been convicted of voluntary
manslaughter.
Appellant's Brief at 247-50 (emphasis added).
C. JURY DETERMINATION OF LIFE OR DEATH
The majority continues to repudiate the mandate of art. 1, § 7 of the Idaho
Constitution, thereby robbing the capital defendant of the right to a jury trial. The life
or death decision had always been within the exclusive province of the jury in Idaho, until
the legislature in 1977 passed the current version of LC. § 18-4004, drafted and sponsored
by the Attorney General. The steady stream of dissents from Justice Huntley and later
myself beginning with State v. Creech, 105 Idaho 363, 670 P.2d 463 (1983), have failed to
persuade a majority of this Court, or the legislature, that the Idaho Constitution requires
jury participation in capital sentencing.
Today the majority takes on bigger game and now rejects the sound reasoning of
the en bane Ninth Circuit Court of Appeals in Adamson v. Ricketts, _ F.2d ___ (filed

December 22, 1988), holding that the Arizona capital sentencing scheme -- remarkably
similar to Idaho’s -- violates the sixth amendment right to a jury determination of each
element of the offense charged.

In Adamson the Ninth Circuit stated:

Under Arizona’s revised code, all murder is not capital murder.
Since 1973, Arizona has required that before a death sentence may
be imposed the trial judge must find beyond a reasonable doubt that
at least one statutory aggravating circumstance exists. While Arizona
has formally. subdivided murder into at least four categories -- first
degree murder, second degree murder, manslaughter and negligent
homicide -- it appears that aggravating circumstances in fact operate
to create an additional category of murder. While the statute’s
nomenclature (‘aggravating circumstances’) suggests they are mere
factors guiding the judge in his or her determination of the appro-

- 72-

APP. 73

priate penalty, all other indicators confirm that aggravating circum-
- stances are additional elements necessary for a finding that a

defendant is guilty of the distinctive offense of capita] murder.

Finding aggravating circumstances results in the only crime in Arizona

for which a defendant may receive a death sentence.
_. F.2d at ___ (filed December 22, 1988) (emphasis and parentheses in original;
footnotes omitted). Like Arizona’s aggravating circumstances, Idaho’s capital sentencing
statute, I.C. § 19-2515, constitutes elements of the crime of capital murder. Simply put,
an Idaho citizen cannot be put to death unless the evidence establishes an aggravating
circumstance, the sine qua non of capital murder. Accordingly, when the presence of such
an element is determined by a trial judge -- and not a jury -- the right to a jury trial
guaranteed by the Idaho and federal constitutions is violated.

A majority of the Court, however, shuns Adamson on the basis of the Supreme
Court’s decision in Spaziano v. Florida, 104 S. Ct. 3154 (1984), which held that judge-
sentencing in capital cases does not violate the eighth ameadment prohibition against cruel
and unusual punishment. However, in Adamson the Ninth Circuit convincingly demonstrates
that the

[Supreme] Court’s examination in Spaziano was limited to the
constitutionality of judicial ‘sentencing’ and evaluation of ‘the
appropriate punishment to be imposed.’ 468 U.S. at 458-59.

Aur ddressec

coo

element of the offense. Thus the Court never reached the particular
contention Adamson 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. Sentencing, or the ultimate determination
of an appropriate penalty, involves the weighing of factors. Such
weighing is completely distinct from threshold findings of whether
requisite elements even exist from which the trier-of-fact draws
conclusions on guilt or innocence.

7 ladies ie os it_lefi

io i j ial where the aggravat-
ing circumstances of a state’s death penalty statute are elements of
a capital offense.

se

APP. 74

___ F.2d ___ (footnote omitted) (emphasis added). The ultimate outcome is, of course,
up to the Supreme Court of the United States, but whatever it may be, that Court surely
will address the issue as one of first impression, and not "inherently" mandated by Spaziano

as the majority of this Court today erroneously concludes.
D. THE HEARSAY LETTER FROM THE VICTIM’S FATHER

The majority holds that the letter written by the victim's father and admitted at the
penalty phase of the trial was inadmissible hearsay. With that much I agree. However,
a majority of this Court adheres to the view that hearsay contained in a presentence
investigation report can properly be considered by a trial judge when weighing aggravating
against mitigating circumstances.

Idaho Code § 19-2516 provides:

Inquiry into circemstances -- 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.

(Emphasis added.) I remain convinced that the mandate of the legislature expressed in
1.C. § 19-2516 and that of the founding fathers expressed in the due process clauses of the
state and federal constitutions prohibits the admission of presentence investigation reports
obtained by hearsay and containing hearsay. As stated on an earlier occasion:

[T]he Court simply cannot in any show of conscience continue to let
capital sentencing be hinged on unsworn statements and other forms
of hearsay. It is now clear that a capital case involves two trials.
The first is to try the issue of the accused’s guilt. If convicted, the
second is to try the issue of the circumstances of his crime and the
facets of his character. Common sense dictates that the second trial
for his life is the defendant’s more important trial. Can it be then
that in Idaho we have a rule that while due process obtains at the
guilt trial, anything goes at the second trial which determines the
issue of life and death? Until recently, I had thought that removing

~*~

APP. 75

the element of due process from the second trial was such a
monstrous proposition as to be undeserving of discussion or comment.

State v. Sivak, 105 Idaho 900, 920-21, 647 P.2d 396, 416-17 (1983) (Bistline, J. dissenting).

It seems exceptionally clear to me that unless the system has broken down to the
point where it is permissible to allow a jury -- as the sentencing authority -- to have placed
before it anything and everything which a presentence investigator comes across or can stir
up, then, and only then, should a district judge as sentencing authority likewise be so
influenced.

E. VAGUENESS OF AGGRAVATING CIRCUMSTANCES

The cruel and unusual punishment prohibitions of the state and federal constitutions
require that the sentencer’s discretion in imposing the death penalty limited to "minimiz{«]
the risk of wholly arbitrary and capricious action." Maynard v. Cartwright, 108 S. Ct. 1853
(1988). The Supreme Court has held that the statutory aggravating circumstances, such
as those in I.C. § 19-2515, must be given a limiting construction if the state is to meet its
constitutional obligation “to tailor and apply its law in a manner that avoids the arbitrary
and capricious infliction of the death penalty." Godfrey v. Georgia, 446 U.S. 420, 428, 100
S. Ct. 1759, 1764, 64 L. Ed.2d 398, 406 (1980).

Idaho Code § 19-2515(g) provides:

The following are statutory aggravating circumstances, at least one (1)
of which must be found to exist beyond a reasonable doubt before a
sentence of death can be imposed.

(5) The murder was especially heinous, atrocious or cruel, manifest-
ing exceptional depravity.

(6) By the murder or circumstances surrounding its commission, the
defendant exhibited utter disregard for human life.
(Emphasis added.) In regard to the (g)(5) aggravating circumstance, the majority
concludes that the following limiting construction passes constitutional muscer:
It is our interpretation that heinous means extremely wicked or
shockingly evil; that atrocious means outrageously wicked and vile;

3 -

APP. 76

and, that cruel means designed to inflict a high degree of pain with
utter indifference to, or even enjoyment of, the suffering of others.

. . .
u s ati 20 th? » £ . 2) whet ay! 4: 3 ,
+e: .

Slip Op. at 38 (quoting State v. Osborn, 102 Idaho 405, 418, 631 P.2d 187, 200 (1981)
(emphasis in original).//

The limiting construction given to the (g)(5) aggravating circumstance by Osborn and
reaffirmed today by the majority, is wholly insufficient to guide the sentencer’s discretion
in limiting the application of the death penalty consistent with constitutional mandates.
Terms beget terms. What is the “norm” of capital felonies? Who sets this “norm”?
Indeed, all first degree murders involve the unlawful killing of another with malice
aforethought. What sets this particular murder apart -- not from other crimes -- but from
the "norm" of first degree murder? In a domestic dispute husband kills wife with a gun.
Do all such murders now warrant execution? If so, it can hardly be said discretion is
limited./? 7

Also, the Osborn “limiting” definition of the (g)(5) circumstance provides that the
murder must be “unnecessarily torturous to the victim." Clearly, however, this definition
is simply duplicative of the (g)(7) circumstance which subjects defendants to death for

murder by torture.!9 In the final analysis, all first degree murders are "especially heinous,

" The Osbom majority adopted this limiting construction to a very similar

aggravating circumstance of the Florida Supreme Court in State v. Dixon, 283 So.2d 1 (Fla.
1973), cert. den., 416 US, 943, 94S. Ct. 1951, 40 L. Ed.2d 295 (1974).

2 The Adamson court, reviewing Arizona cases applying similar “heinous and/or

depraved" language convincingly demonstrated that the words themselves are empty vessels
capable of being filled by a court as it chooses with any facts at hand. Adamson, Slip Op.
at 15676, F.2d at ,

3 Idaho Code § 19-2515(g)(7) provides: "The murder was one defined as
murder of the first degree by section 18-4003, Idaho Code, subsections (b)(c)(d)(e) or (f),
and it was accompanied with the specific intent to cause the death of a human being.”

- 76 -

me
iii
:

APP. 78

atrocious or cruel, manifesting exceptional depravity." Nothing in the majority’s
interpretation restricts the broad brush with which the subsection is drawn.

The (g)(6) aggravating circumstance, which requires that the defendant exhibit “utter
disregard for human life," suffers from similar infirmities. Today the majority reaffirms the
“limiting” construction enunciated in Osborn:

We conclude instead that the phrase is meant to be reflective of acts
or circumstances surrounding the crime which exhibit the highest, the

Hlous di ‘for } life, i.¢., the cold-blooded, pitil
slayer.

Slip Op. at 39 (emphasis added) (quoting Osborn, 102 Idaho at 419, 631 P.2d at 201).
What first degree murderer fails to show "callous disregard for human life"? I suppose
this would be the “pitiful” slayer, who, prior to delivering the fatal blow, tells the victim:
“Excuse me, pardon me, I know it’s inconvenient, but I must now take your life.”

Furthermore, the (g)(5) and (6) aggravating circumstances are duplicative. Every
murderer who exhibits "utter disregard for human life" commits a crime which is “especially
heinous, atrocious or cruel manifesting exceptional depravity." Today, however, the
majority in State v. fain (1989 Opinion No. ___), concludes that the aggravating factors
describe two "quite different kinds of culpability.". The majority states:

The particularly cold-blooded killer need not act sadistically
or in a particularly outrageous fashion in order to commit a killing
with utter disregard for human life. One who commits a crime in an

especially heinous way is punished for the heinousness of his crime,
not because he acted with utter disregard for human life, although it
may be expected that most especially heinous, atrocious or cruel
murders will have been committed with utter disregard for human
life.
Fain, Slip Op. at 32 (emphasis added).
Thus, according to the majority, a “cold-blooded killer need not" act in an
“outrageous fashion” to commit a murder “with utter disregard for human life.” I cannot
fathom a first degree murder which is not carried out in an “outrageous fashion." Every

premeditated murder is outrageous.

Idaho Code § 18-4003(a) is the murder by torture statute.
+

APP. 78

The (g)(5) and (6) subsections are nothing more than kitchen sink aggravating
circumstances which enable the state to make every first degree murderer not just a
candidate for, but an actual recipient of, the harshest and most final of all criminal
penalties. As a result, the mandate to narrow the class of death-eligible murders is

abandoned.

- 78 -

2

en

Tae State or [paHzo

Supreme Govrt
BOISE scrso

BYRON 1 JOHNSON

April 18, 1989

Mr. Brian L. Johnson
Assistant Managing Editor
West Publishing Company
P.O. Box 64526

St. Paul, MN 55164-0526

RE: STATE v. CHARBONEAU
1989 Slip Opinion No. 44
Filed: 4/4/89
Idaho Supreme Court Nos. 16339 and 16741

Dear Mr. Johnson:

Please correct the following typographical errors in the
above-captioned slip opinion:

Page 7 -- 5th line from the top, 1984 should be corrected to
read 1985.

Page 42 -- 13th line from the top, reads: “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."

This should read: “We hold that the trial court may sentence
the defendant to death, only if the trial court finds that all the
mitigating circumstances do not outweigh the gravity of each of the
aggravating circumstances found and make imposition of death
unjust."

Thank you for your attention to this matter.

Sincerely,

Ken Dba

Justice

cc: (fax) Judges Becker, Haman, Michaud & Woodland

—_

APP. 80
Idaho Criminal Rule 32

Rule 32. Standards and procedures governing
presentence investigations and reports. -
The following standards and procedures shall
govern presentence investigations and
reports in the Idaho courts:

(a) When presentence investigations are to
be ordered. The trial judge need not
require a presentence investigation report
in every criminal case. The ordering of
such a report is within the discretion of
the court. With respect to felony
convictions, if the trial court does not
require a presentence investigation and
report, the record must show affirmatively
why such an investigation was not ordered.
(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) The presentence investigator's
analysis of the defendant's condition. That
analysis of the defendant's condition
contained in the presentence report should

include a complete summary of the
presentence investigator's view of the
psychological factors surrounding the
commission of the crime or regarding the
defendant individually which the

investigator discovers. Where appropriate,
the analysis should also include a specific
recommendation regarding a psychological
examination and a plan of rehabilitation.

(c) Recommendations concerning’ sentence.
The presentence report may recommend

|

App. 81

incarceration but it should not’ contain
specific recommendations concerning the
length of incarceration, the imposition of a
fine or the amount of a fine, or the length
of probation or other matters which are
within the province of the court. Provided,
however, the presentence report may comment
generally on the probability of the
defendant's successfully completing the term
of probation or the defendant's financial
ability to pay a fine imposed by the court.
(d) Psychological evaluations. The
presentence investigator may recommend a
psychological evaluation, but the decision
as to whether to order a_ psychclogical
evaluation is to be made by the sentencing
judge.

(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.

(2) Previous charges against defendant. It
is permissible for the sentencing judge to
consider information in a presentence report
regarding a previous charge against’ the
defendant which been dismised after a
successful probation period.

(f£) Additional report may be ordered. The
sentencing judge may order an additional
investigation of the case if he deems it
necessary and use such results in
considering the disposition.

(g) Access to presentence report. (1)
Disclosure of report, exceptions. Full
disclosure of the contents of the
presentence report shall be made to the
defendant, his counsel, and the prosecuting
attorney prior to any hearing on the
sentence except as hereinafter provided.
The defendant and his attorney shall be
given a full opportunity to examine the
presentence investigation report so that, if
the defendant desires, he may explain and
defend adverse matters therein. The
defendant shall be afforded a full
opportunity to present favorable evidence in
his behalf during the proceeding involving
the determination of sentence. Provided,
however, the trial court may withhold from
disclosure parts cf the presentence report
which contain diagnostic opinion which might
seriously disrupt a program of
rehabilitation, or information which in the

App. 82

court's discretion may prove harmful to an
individual not a party in the proceeding.

(2) Explanation of non-disclosure. Where
the trial court chooses to withhold from
disclosure to the defendant information in
the presentence report, the court must state
for the record the reasons for its action,
inform the defendant and his attorney that
information has not been disclosed, and
explain the general nature of the
information being withheld. Further, if
requested, the defendant's attorney, if the
defendant is represented by counsel, shall
be allowed to review any information in the
presentence report which is so withheld from
disclosure so as to allow the attorney a
full opportunity to explain and rebut the
information contained therein.

(3) Time of disclosure. Disclosure of the
information contained in the presentence
report under the conditions mentioned above
shall be made at a sufficient time prior to
the imposition of sentence so as to afford a
reasonable opportunity for the defendant or
his attorney to verify or rebut any
information contained in the report.
Reasonable requests for a continuance of the
sentence proceeding, when based on lack of
sufficient time to examine or offer rebuttal
to information contained in the presentence
report, may be granted by the sentencing
judge.

(h) Disclosure of presentence’ reports.
(1) Custody ‘of presentence report. Any
presentence ‘report shall be available for
the purpose of assisting a_ sentencing
court. After use in the sentencing
procedure, the presentence report shall be
sealed by court order, and thereafter cannot
be opened without a court order authorizing
release of the report or parts thereof to a
specific agency or individual. The
presentence investigator's own copy of the
presentence report similarly is restricted
from use by all but = authorized court
personnel. Neither the defendant, his
counsel, the prosecuting attorney nor any
person authorized by the sentencing court to
receive a copy of the presentence report
shall release to any other person or agency
the report itself or any information
contained therein. Any violation of this
rule shal) be deemed contempt of court and
subject to appropriate sanctions.

(2) Availability of presentence report to
third parties. With the permission of the
sentencing judge, the presentence report may
be available to persons or agencies having a
legitimate professional interest in the
information likely to be contained therein,
if it appears that such availability will
further the plan or rehabilitation of the
defendant or further the interests of public
protection, and that appropriate safegu

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0052%3A2. Public record. Not legal advice.