# Amicus Curiae Brief — Idaho v. Charboneau

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0052%3A3

## Record

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

## Text

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| Supreme Court, U.S.
~ FILE®@

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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6 5, Ce. Gaeet ci, oe WSs OS Ye
(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

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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

at@.

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

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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
0646D map

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0052%3A3. Public record. Not legal advice.