Amicus Curiae Brief — Idaho v. Charboneau

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| Supreme Court, U.S.

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NO. 89-151 AUG 25 1969

JOSEPH F. SPANIOL JR,

IN THE SUPREME COURT OF THE UNITED STATES °*

October Term, 1989 9 mpeg. -n--.

_

THE STATE OF IDAHO,

Petitioner,

-vs-

JAIMI DEAN CHARBONERU,

Respondent,

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF IDAHO

BRIEF OF THE STATES OF ARIZONA,

INDIANA, MISSISSIPPI, MONTANA,

AND NEBRASKA AS AMICI CURIAE IN

SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

ROBERT K. CORBIN

Attorney General of

the State of Arizona

JESSICA GIFFORD FUNKHOUSER

Chief Counsel

Criminal Division Division

CRANE McCLENNEN

Assistant Chief Counsel

Department of Law

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602)255-4686

(Adomney 4 Lecordl)

Attorneys for Amici Curiae :

LINLEY E. PEARSON

Attorney General of Indiana

219 State Hourse

Indianapolis, Indiana 46204

MICHAEL C. MOORE

Attorney General of Mississippi

P.O. Box 220

Jackson, Mississippi 39205

MARC RACICOT

Attorney General of Montana

215 North Sanders

Helena, Montana 59620

ROBERT M. SPIRE

Attorney General of Nebraska

2115 State Capital

Lincoln, Nebraska 68509

Questions Presented

1. When the sentencing is to be

conducted by a judge rather than a

jury, and when there is present

evidence that is not relevant pursuant

to Booth v. Maryland, but the trial

court has stated that it has

endeavored to avoid anything that

might be hearsay, not pertinent, or

not supported by the evidence, is the

presence of this evidence at the

sentencing a denial of due process and

does it result in a sentencing

proceeding that violates the Eighth

Amendment's prohibition against cruel

and unusual punishment.

2. Does the Sixth Amendment

prohibit the use of hearsay evidence

at the sentencing phase, and if so, is

the admission of hearsay evidence

subject to harmless error analysis.

3. Does the Eighth Amendment

require that the sentencing authority

balance all of the mitigating

circumstances against each one of the

aggravating circumstances.

QUESTIONS PRESENTED FOR REVIEW i

TABLE OF CASES AND AUTHORITIES 1ii

INTEREST OF AMICI CURIAE 1

SUMMARY OF ARGUMENTS 3

ARGUMENTS

I

BECAUSE A TRIAL JUDGE IS INA

DIFFERENT POSITION, BY VIRTUE OF

TRAINING AND EXPERIENCE, THAN ARE

JURORS, THE PRESENCE OF

IRRELEVANT EVIDENCE, WHEN THE

TRIAL JUDGE DOES NOT CONSIDER

THAT EVIDENCE IN IMPOSING

SENTENCE, DOES NOT MAKE THE

SENTENCE CRUEL AND UNUSUAL

PUNISHMENT AND DOES NOT VIOLATE

DUE PROCESS. 5

II

THE SIXTH AMENDMENT DOES NOT PRECLUDE

THE INTRODUCTION OF HEARSAY EVIDENCE

AT THE SENTENCING PHASE OF A CAPITAL

CASE, AND IF THE SIXTH AMENDMENT

DOES PRECLUDE THIS TYPE OF EVIDENCE,

ADMISSION OF SUCH EVIDENCE IS SUBJECT

TO A HARMLESS ERROR ANALYSIS. 12

II!

FEDERAL LAW DOES NOT MANDATE THE

HIGHLY STRUCTURED BALANCING TEST

REQUIRED BY THE IDAHO SUPREME COURT. 15

CONCLUSION 16

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TABLE OF CASES AND AUTHORITIES

Case

Booth v. Maryland

482 U.S. 496 (1987)

Bullington v. Missouri

451 U.S. 430 (1981)

Delaware v. Van Arsdall

475 U.S. 673 (1986)

Green v. Georgia

442 U.S. 95 (1979)

Harris v. Pulley ;

692 F.2d 1189 (9th Cir. 1982)

Jackson v. Denno

378 U.S. 368 (1964)

Lockett v. Ohio

438 U.S. 586 (1978)

Poland v. Arizona

476 U.S. 147 (1986)

Proffit v. Florida

428 U.S. 242 (1976)

South Carolina v. Gathers

a ees

109 S. Ct. 2207

104 L. Ed. 2d 876 (1989)

State v. Beaty

158 Ariz. 232

762 P.2d 519 (1988)

-iii-

5,12

14

14

12

15

13

14

11

State v. Charboneau

iin Te

774 P.2d 299 (1989) 9

Tison v. Arizona

481 U.S. 137 (1987) 13

Williams v. New York

337 U.S. 241 (1949) 13

Authorities

Arizona Revised Statutes Annotated

§ 13+702(F) ll

§ 13-702(G) ll

§ 13-703(F) ll

United States Constitution

Sixth Amendment 13,14

Eighth Amendment 5,10,16

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INTEREST OF AMICI CURIAE

The States of Arizona, Montana, and

Nebraska, like the State of Idaho,

provide in a capital case that the trial

court shall make the factual finding

whether aggravating and mitigating

circumstances exist, and shall then weigh

the aggravating and mitigating

circumstances and determine the

appropriate sentence; the jurors are

therefore not involved at all in the

sentencing process. The State of Indiana

provides for the jurors to give an 4

advisory verdict, but the trial court

ultimately determines the sentence.

Accordingly, these shades have an

interest in the first issue presented in

the petition for writ of certiorari,

Since it affects all of the states that

have sentencing done by the trial court

rather than the jurors.

The States of Arizona, Mississippi,

Montana, and Nebraska provide that any

information relevant to mitigation may be

presented by either the prosecution or

the defense, without regard to the rules

governing admissibility of evidence at

the trial. Accordingly, these states

have an interest in the second issue

presented in the petition for writ of

certiorari, since it affects all of the

states that allow the introduction of

hearsay evidence.

The States of Arizona, Indiana,

Mississippi, Montana, and Nebraska

provide that the sentencing authority

shall weigh all of the aggravating

circumstances against all of the ‘

mitigating circumstances, and then

determine the proper sentence.

Accordingly, these states have an

inter@st in the third issue presented in

the petition for writ of certiorari,

since it affects all of the states that

require the sentencing authority to

balance the aggravating circumstances

against the mitigating circumstances.

SUMMARY OF ARGUMENTS

There is a presumption that a trial

court, in making a determination, will

consider only admissible evidence. Thus,

when the information at a capital

sentencing contains both admissible and

inadmissible evidence, the presumption

exists that the trial court considered

only admissible evidence. In the present

case, because the trial court stated that

it had endeavored to avoid anything that

might be hearsay, not pertinent, or not

supported by the evidence, the presence

of this information did not result in a

denial of due process and did not result

in a sentencing proceeding that violated

the Eighth Amendment's prohibition

against cruel and unusual punishment.

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This Court has held that the sentencing

authority should be aware of all relevant

facts when imposing sentence, therefore

etthae party should be allowed to

introduce reliable hearsay evidence.

Assuming that hearsay evidence is

inadmissible at the sentencing phase, the

introduction on any hearsay evidence

should be subject to a harmless error

analysis.

This Court has never held that a

formula is required in weighing

“aggravating circumstances against

mitigating circumstances. The Idaho

Supreme Court's decision that the trial

court must weigh ali the mitigating

circumstances together against each

individual aggravating circumstance is

improper.

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ARGUMENTS

I on

BECAUSE A TRIAL JUDGE IS INA

DIFFERENT POSITION, BY VIRTUE OF

TRAINING AND EXPERIENCE, THAN ARE

JURORS, THE PRESENCE OF IRRELEVANT

EVIDENCE, WHEN THE TRIAL JUDGE

DOES NOT CONSIDER THAT EVIDENCE IN

IMPOSING SENTENCE, DOES NOT MAKE

THE SENTENCE CRUEL AND UNUSUAL

PUNISHMENT AND DOES NOT VIOLATE

DUE PROCESS.

In Booth v. Maryland, 482 U.S. 496

(1987), this Court held that the

introduction of a victim impact statement

at the sentencing phase of a capital

murder trial violates the Eighth

Amendment for the reason that information

about the victim that is unknown to the

defendant, and opinions by the victim's

relatives about the proper sentence to be

imposed, is irrelevant to the sentencing

process, thus its admission creates a

constitutionally unacceptable risk that

the jurors may impose a sentence of death

in an arbitrary and capricious manner.

<

~ 482 U.S. at 502-09. The first question

presented in this petition for writ of

certiorari is whether and to what extent

this reasoning applies to a capital

sentencing procedure where the trial

court, rather than the jurors, makes the

sentencing decision.

This Court has been concerned with the

problems inherent when the jurors receive

inadmissible evidence and are told to

ignore it. In Jackson v. Denno, 378 U.S.

368 (1964), this Court condemned the

practice of having the jurors both hear a

confession and determine whether it is

voluntary, and then instructing them to

disregard the confession if they

determine that it was involuntary. 378

U.S. at 377. The reason for this is the

danger that the jurors, even after

finding a confession involuntary, may not

be able to disregard it in reaching their

verdict. 378 U.S. at 388. This Court

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has not, however, expressed that same

fear with respect to the trial court.

When a defendant moves to suppress

physical evidence or a confession, the

trial court must hold a hearing to

determine the admissibility of the

evidence. Jackson v. Denno, 378 U.S. at

376-77. Often at such a hearing, the

trial court hears evidence showing that

the defendant is guilty of the charges;

this does not, however, preclude the

trial court from presiding at the trial

and indulging in the presumption of

innocence when making various rulings

that affect the outcome of the case.

This is based on the presumption that the

trial court will consider only admissible

evidence in reaching a determination.

This Court has further recognized that

there is a difference between judge

sentencing and jury sentencing, observing

that “it would appear that judicial

sentencing should lead, if anything, to

even greater consistency in the

imposition at the trial court level of

Capital punishment, since a trial judge

is more experienced in sentencing than a

jury, and is therefore better able to

impose sentences similar to those imposed

in analogous cases." Proffit v. Florida,

428 U.S. 242, 252 (1976). This Court

therefore seems to have accepted the

presumption that a trial court will

disregard inadmissible evidence in making

a required determination.

In the present case, the trial court

received a letter from the victim's

father giving information about the

victim and giving an opinion about the

proper sentence to be imposed. The trial

court, however, took no account of the

letter in its sentencing findings. Even

though the trial court stated that it had

endeavored to avoid anything that might

be hearsay, not pertinent, or not

supported by the evidence, the Idaho

Supreme Court set aside the sentence,

apparently concluding that the presence

of such information was a per se

violation of the defendant's rights.

State v. Charboneau, ____ Idaho , P

774 P.2d 299, 319 (1989). Certainly, if

the trial court had relied upon such

information in sentencing the defendant,

the sentencing procedure would have been

a violation of the Eighth Amendment's

prohibition against cruel. and unusual

punishment. In this case, however,

because the trial court did not rely-upon

this information and stated that it had

disregarded the information, the question

is whether presence of this information

before the trial court “so infected the

entire proceedings with unfairness as to

render the resulting sentence a denial of

due process." South Carolina v.

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Gathers, ___ U.S. , , 109 S. Ct.

2207, 2216, 104 L. Ed. 2d 876, 890 (1989)

(O'Connor, J., dissenting). For the

reason that there should be no

presumption that the trial court was

either mistaken or untruthful when it

stated that it had not considered the

information from the victim's family,

Amici Curiae urge this Court to grant

certiorari and hold that the presence of

this information did not result in a

denial of due process and did not result

in a sentencing proceeding that violated

the Eighth Amendment's prohibition

against cruel and unusual punishment.

Amici Curiae are concerned by this

issue because their sentencing procedures

are similar to that of Idaho. For

example, in Arizona, like Idaho, the

trial court makes the sentencing

determinations, and may consider in

aggravation only those factors listed in

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the statute. Arizona Revised Statutes

Annotated § 13-703(F). In Arizona, like

Idaho, the victim of a felony or the

family of a victim who has died has the

right to appear at sentencing and give

their views; however, unlike Idaho, this

provision only applies in non-capital

cases. Arizona Revised Statutes

Annotated § 13-702(F) & (G). Thus, when

the trial court sentences a defendant for

both a capital offense and a noncapital

offense, the trial court often will have

victim impact evidence presented to it.

The Arizona courts, however, indulge in

the presumption that the trial court, in

making the sentencing determination in a

capital case, will consider only that

evidence that is relevant and admissible

at the sentencing proceeding. State v.

Beaty, 158 Ariz. 232, 244, 762 P.2d 519,

531 (1988), cert, denied, 3.8. 0!

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(1989). Amici Curiae therefore urge this

Court to grant the petition for writ of

certiorari and determine whether it is

constitutionally permissible, in a

capital sentencing, to accept the

presumption that a trial court will not

consider evidence that is irrelevant and

inadmissible under Booth v. Maryland. or

whether the presence of such evidence is

error per se, as the Idaho Supreme Court

has held.

II

THE SIXTH AMENDMENT DOES NOT

PRECLUDE THE INTRODUCTION OF

HEARSAY EVIDENCE AT THE SENTENCING

PHASE OF A CAPITAL CASE, AND IF

THE SIXTH AMENDMENT DOES PRECLUDE

THIS TYPE OF EVIDENCE, ADMISSION

OF SUCH EVIDENCE IS SUBJECT TO A

HARMLESS ERROR ANALYSIS.

In Green v, Georgia, 442 U.S. 95

(1979), this Court vacated the sentence

of death because the trial court had

preciuded the defendant from introducing

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hearsay evidence that potentially

mitigated the sentence to be imposed.

The second question presented is whether

the Sixth Amendment applies to the

sentencing phase of a capital offense,

and if it does, whether the introduction

of such evidence is subject to a harmless

error analysis.

This Court has previously stated that

the sentencing authority should be aware

of all the relevant facts when imposing

sentence. E.g., Lockett v. Ohio, 438

U.S. 586 (1978); Tison v. Arizona, 481

U.S. 137 (1987). In Williams v. New

York, 337 U.S. 241 (1949), this Court

held that the introduction of hearsay

evidence at the sentencing phase of a

Capital case did not violate due

process. This Court has yet to determine

whether the introduction of hearsay

evidence at the sentencing phase violates

«Be

the Sixth Amendment. This Court has held

that, although the sentencing phase is

similar to the trial phase in some

respects, it is not identical. Compare

Bullington v. Missouri, 451 U.S. 430

(1981), with Poland v. Arizona, 476 U.S.

147 (1986). Amici Curiae therefore

request that this Court grant the

petition for writ of certiorari. and hold

that such evidence is admissible at the

sentencing phase.

Further, this Court has held that a

violation of the right of confrontation

at the trial stage is subject to a

harmless error analysis. Delaware v. Van

Arsda}hi, 475 U.S. 673, 684 (1986). The

Idaho Supreme Court refused to apply a

harmless error analysis to the

introduction of such evidence, and thus

in effect held that the introduction of a

letter from the victim's father was error

-14-

per se. 774 P.2d at 319. It would

appear from this Court's reasoning in Van

Arsdall that a harmless error analysis

would apply with the same force to the

sentencing phase as it does to the trial

phase. Amici Curiae therefore request

that this Court grant the petition for

writ of certiorari and hold that a

harmless error applies to the sentencing

phase.

III

FEDERAL LAW DOES NOT MANDATE THE

HIGHLY STRUCTURED BALANCING TEST

REQUIRED BY THE IDAHO SUPREME

COURT.

This Court has yet to require that the

aggravating circumstances outweigh the

mitigating circumstances beyond a

reasonable doubt, and has yet to impose

any system of weighing on the state

courts. See Harris v. Pulley, 692 F.2d

1189, 1195 (9th Cir. 1982), vacated on

other grounds, 465 U.S. 37 (1984). The

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Idaho Supreme Court held that the trial

court erred in failing to weigh all of

the mitigating circumstances against each

individual aggravating circumstance in

determining the sentence. 774 P.2d 324.

Because there is no support in any of

this Court's decisions for such a

requirement, Amici Curiae request that

this Court grant the petition for writ of

certiorari and hold that the United

States Constitution imposes no such

requirement.

CONCLUSION

Because the trial court stated that it

had endeavored to avoid anything that

might be hearsay, not pertinent, or not

supported by the evidence, the presence

of inadmissible evidence at the

sentencing did not result in a denial of

due process and did not violate the

Eighth Amendment's prohibition against

=" a

cruel and-unusual punishment. Further,

the introduction of the letter from the

victim's father was admissible, and if

not, was subject to a harmless error

analysis. Finally, the Idaho Supreme

Court erred when it held that the trial

court must weigh all the mitigating

circumstances together against each

individual aggravating circumstances.

This court should therefore grant the

petition for writ of certiorari and

reverse the decision of the Idaho Supreme

Court.

Respectfully submitted,

ROBERT K. CORBIN

Attorney General

JESSICA GIFFORD FUNKHOUSER

Chief Counsel

Criminal Divisign

Assistant Chief Counsel

Criminal Division

(Attorney of Record)

Attorneys for AMICI CURIAE

atQe

CERTIFICATE OF SERVICE

THREE COPIES of this Brief were mailed

August 25, 1989, to:

LYNN E. THOMAS

Solicitor General

Statehouse, Room 210

Boise, Idaho 83720

Attorney for PETITIONER

GREG J. FULLER

P.O. Box 30

Jerome, Idaho 83338 ‘

Attorney for RESPONDENT

SOLICITOR GENERAL

Department of Justice |

Washington, D.C. 20530

Assistant/Chi¢éf Counsel

Criminal Mivi6Sion

1275 West Washington

Phoenix, Arizona 85007

Attorneys for AMICI CURIAE

CRM89-1277

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