Opposition Brief — Idaho v. Shackelford

LABLE OF AUTHORITIES

STATEMENT OF THE CASI

REASONS FOR DENYING THE PETITION

[HE QUESTIONS PRESENTED ARE PREMISED ON PETITIONER’S

MISSTATEMENT OF THE HOLDING O} EF IDAHO

Li

SUPREME COURT

A

\. [he Idaho Supreme Court applied a de facto harmless err

] . Din rror 1 " a

inalysis of the Ring errot In this case

ee. FF ja ; - j ON Er See apap

3. [he Idaho Supreme Court did not treat the Ring «

structura

L. THE DECISION OF THE IDAHO SUPREME COURT RESTS

ON AN INDEPENDENT AND ADEQUATE STATE GROUND

Hl. HOW THE IDAHO SUPREME COURT CHOOSES TO DEFINI

AND APPLY A STATE LAW AGGRAVATING CIRCUMSTANC]

LO THE PARTICULAR FACTS OF THIS CASE DOES NOT PRESENT

AN IMPORTANT CONSTITUTIONAL QUESTION WORTHY OF THI!

COURTS REVIEW

ADDENDUM CONTAINING EXCERPTS OF PI

LiN

\PPENDIX CITED HEREIN

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

titioner, the State of Idaho t Court | ( unanimo Cl on

tho Su me ( | cating Dale } onackell dea nten ind order

Shackelford hx ntenced Dy pl int to the d tes of Xp {? 36 US \4

his pet tld b 1 | :

lates the holding of the Idaho Supreme Cour

STATEMENT OF THE CASI

cl d by tl vf the n [) i

1 Uk licl nt al jul { 1 in nurd W

mM 8) ) rr apoul r tM YY \pp )

12 ol 9) ) \

iding which had bes troved i fire disco I {| nit )

\ in to the crim [her LIMONY | ICKEITO !

yf ti I rth Call Chi | 1} ’

| ( } he tri \ mu

nNulliple er a i ( ( 1 {

} } if

nla l iSOned ( in rd on il

i tf ua

For ease of reference, Resp | dd

t} Annend

multiple murder agy

nor did it exp

not asked whether.

time”.

res

ravaling circumstance,

nor was the jury provided with a

the re WaS eV idence from which (he Jury

the same day and in the same vicinity

find beyond a reasonable doubt that a |

and Fred

Idaho’s unitary system o|

was stayed pending the compl

because Shackelford

lherefore

I) > . ’ 1 '

Ring decision, it 1s undisputed

penalty phase of Shackelford’s tr

Shackellord’s Rine claim durin

that Shackellord’s death sentes

not a yudee, to weigh the mitigati

listrict court did not agree witl

voravating factors. Instead. th

murder of both Fred and Donna

pursuant to 1.C. §19-251S(h)\

| Shackelford | ruilty 1 tne |

re killed al the Same ume

1 .( Y

1 +}

Ke

ty \T

could | ivi

the Idaho Supt

|

\pp )

i iS¢ \

POs| mViIct

ect npeal Wa

yO aN

pplic

if i

VOSL-CONVICTIO

e Sel asid

lord it

cl Court [0

hed the exi

er

}

(

\ |

[

ry

lhe State appealed the district court’s ruling that Shackeltord’s death sentence be set

aside and that he be resentenced by ajury. The Idaho Supreme Court atlirmed the district

court's decision that Shackelford must be resentenced, but did so on a different ground. The

Idaho Supreme Court specifically held as follows

lherefore, we affirm the district court's decision vacating

Shackelford’s sentence and its determination that Shackelford must

he resentenced by a jury under Ring because we cannot find

heyond a reasonable doubt that a reasonable jury could find that

the State proved that Donna and Fred were killed at the same tim

Without analyzing whether Ring requires a jury to weigh

mitigating factors, this Court finds that the jury was required to

find the aggravator, and such a finding was not explicit in the first

degree murder verdicts

(App. 80). (emphasis supplied)

In reaching this conclusion, the court stated that it must “first resolve whether the error is

harmless bevond a reasonable doubt where the statutory aggravating factors, which render a

‘fendant death eligible, were neither included in the instructions to the jury nor proven beyond

delendant death e€ lgible, Were neither included in the instructions to the Jury nor proven beyond a

reasonable doubt.” (App. 77)(emphasis supplied). The court followed its decision in an earlier

Idaho pre-Ring judge sentencing case, State v. Lovelace (Lovelace Il), 140 Wdaho 73, 79, 90 P.3rd

298, 304 (2004) in which the court had applied a de facto harmless error analysis to a Ring claim

REASONS FOR DENYING THE PETITION

|. THE QUESTIONS PRESENTED ARE PREMISED ON PETTTIONER’S

MISSTATEMENT OF THE HOLDING OF THE IDAHO SUPREME COURT

Question Presented Number | states in pertinent part

Because statutory aggravating factors are the functional equivalent of a greater

offense and the failure to instruct the jury regarding the multiple murder

aggravator did not vitiate all of the jury’s findings, did the Idaho Supreme Court

an eariier ida

err by concluding Ring error ts not subject to harmless error analy

Petition at t-. The Idaho Supreme Court did not conclude that “Ring

to harmless error analysis”. To the contrary, in holding that the Ring error

required resentencing by a jury, the Idaho Supreme Court did apply a ¢

inalysis to the error. Nor did the [daho Supreme Court treat the Ring error as s

\. The Idaho Supreme Court applied a de facto harmless error

analysis of the Ring error in this case

lhe holding of the Idaho Supreme Court 1 lo

[he holding of the Idaho Supreme Court ts as follows

Vheretore, we affirm the district court’s decision vacating

Shackelford’s sentence and its determination that Shackelford must

be resentenced by a jury under Ring because we cannot find

heyond a reasonable doubt that a reasonable jury could find that

{ in hy } ! ) ] ;

the State proved that Donna and Fred were killed at the same time

Without analyzing whether Ring requires a jury to weigh

mitigating factors, this Court finds that the jury was required to

find the aggravator, and such a finding was not explicit

devree murder verdicts

(App. 80). (emphasis supplied). In reaching this conclusion, the Idaho Su

ndeed conduct harmless error review. lhe court stated that it must “first re

the t I

preme Court did

. ey } j , my r > tha. { mr { )

r IS HarmesS DEVONA Q reasonable GOubvl where the statutory av¢eravaling lactors, whiel

render a defendant death eligible, were nether included in the instructions

beyond a reasonable doubt.” (App. 77)(emphasis supplied). The court to

lahn nre-Rino wd Cite au Tawalate A

a Ringe claim

to the yurv nor proven

lowed tts decision in

i LONG h VE ( t prov erent n

) i \ CITCU Alt ld ) ) Id |

B. [he Idaho Supreme Court did not treat the Ring erro

iS structural

Petitioner begins the argume ction of the Petit vit tion th

Supreme Cour 0 on that Ring error tructul nd ca t be { il

rror 1s an important federal constitutional question and pon which t OW aco

ind siynificant controversy.” (Pet. at 8). However, Petitioner is una to cite to exactly Ww

he « on of wo Supre Cou ound th are yn that Ain ctu

cause the Idaho Supreme Ct lid no sucht No tair rea ( ed

he Idaho Sup ( rt reveals that Court w Ri ror in this ¢ ctu

l ( {] a Si | conuo ised by l Idal Su ] \

( b S ( 1ot trea Ri

HE DECISION OF THE IDAHO SUPREME COURT RESTS

UPON AN INDEPENDENT AND ADEQUATE STATE GROUNI

1daho Sut Court m if Ci

lhe decision ot tl

1¢ Idaho Supreme

of the district court’s finding that because

the same location, the murders necessari]

wy Wer - ¢ |

hy Were Con mitted

Idaho multiple murder aggravating circumstanc

[he Idaho Supreme Ci

facts of this case 1s an independent and adequate state ground for the dec

Accordingly, this court lacks jurisdiction to review

Hl, HOW THE IDAHO SUPREME COURT CHOOSES TO DEFINI

AND APPLY A STATE LAW AGGRAVATING CIRCUMSTANCI

lO THE PARTICULAR FACTS OF THIS CASE DOES NOT PRESENT

AN IMPORTANT CONSTITUTIONAL QUESTION WORTHY OF THI

REVIEW

tor the Idaho Supre

Idaho's multiple murder aggray

[he Idaho Supreme Court found

ele yond d TC sonable doubt {

Phis Court does

VV

Te 1e sion ot the Idal » SU Tem)

\

ca

CONCLUSION

IDAHO v. SHACKELFORD

ADDENDUM TO BRIEF IN OPPOSITION

[O PETITION FOR WRIT OF CERTIORARI

EXCERPTS FROM PETITIONER’S APPENDIX

App. 2

BURDICK, Justice

Dale Carter Shackelford appeals from his judg-

ment of conviction, based upon jury verdicts finding

him guilty of the first-degree murders of Donna

Fontaine and Fred Palahniuk, conspiracy to commit

first-degree murder, first-degree arson, conspiracy to

commit first-degree arson, and preparing false evi-

dence. He also appeals from his sentences of death for

first-degree murder, as well as the partial denial of

his claims for post-conviction relief. The State cross-

appeals, challenging the district court’s grant of post-

conviction relief, which set aside Shackelford’s death

sentences and requires resentencing. We find that

any error committed by the district court was harm-

less, and we therefore affirm on all issues. We affirm

the district court’s order for resentencing on different

grounds.

I. FACTUAL AND PROCEDURAL BACK-

GROUND

Dale Shackelford was convict<d of the murders of

his ex-wife, Donna Fontaine, and her boyfriend, Fred

Palahniuk, which occurred near the Latah County

town of Kendrick, Idaho, in May 1999. The State

alleged that Shackelford conspired with Martha

Millar, Bernadette Lasater, Mary Abitz, Sonja Abitz,

and, John Abitz.’ Millar and Lasater worked for

l | ‘

The charges against John Abitz were eventually di:

i t ;

missed

¥

Shackelford’s trucking business, Shackelford Enter

prises, in Missouri. The Abitz family lived near the

residence where the bodies of Donna and Fred were

found. Sonja Abitz was Shackelford’s fiancée at the

time of the murders, and John and Mary Abitz are

Sonja’s parents. The alleged conspirators eventually

led guilty to charges related to the murder

f . :

Shackelford and Donna married in Missour1

Detember 1995 and the relationship ended in

summer of 1997, with the couple divorcing in

vember of that year. Donna accused Shackelford of

raping her in July 1997, and charges were filed in

1998. In the spring of 1999, Donna developed a rela

tionship with Fred and, on May 28, 1999, the two

visited Donna’s brother, Gary Fontaine, at the home

Gary and Donna’s daughter owned together outside of

Kendrick. The morning of May 29, Donna, Fred, and

Gary went the Locust Blossom Festival in

Kendrick, where y met John, Mary, and Sonja

After leaving the festival, Gary

Abitz’s house, but he left around dark, returnec

home, noticed Donna’s pickup in the driveway, and

melled smoke. Gary called the Abitz’s house and

reported that his two-story garage was on fire. Mary,

Sonja, Ted Meske (Mary’s brother), and Shackelford

arrived at the fire and various individuals |

xtinguish it, but were unsuccessful

At 7:40 p.m., Latah County Sheriff Patrol Deputy

Richard Skiles was called LO inve tigate the fire Al

App. 4

2168 Three Bear Road. When Skiles arrived at the

scene, nearly an hour later, he observed several

persons ~— including Gary Fontaine, Mary Abitz, Sonja

Abitz, Brian Abitz (Sonja’s brother), Ted Meske, and

Shackelford — standing near the garage that was

completely engulfed in flames. Based upon infor-

mation obtained from Ted and Shackelford, Deputy

Skiles contacted dispatch to have an on-call! detective

sent “because there was a possibility there could be a

suicide victim in the fire.” By the time the fire de-

partment arrived, the garage had been utterly de-

stroyed. Several hours later, after the fire had been

extinguished, two bodies were found in the rubble.

The bodies were subsequently identified as the re-

mains of Donna and Fred. At trial, a state fire inves-

tigator testified as to his opinion that the fire was

arson.

Doctor Robert Cihak conducted autopsies of the

remains, which were severely burned. Shotgun pel-

lets were found in Donna’s right chest region and a

bullet was found in the back of her neck. Dr. Cihak

opined that the bullet wound was fatal and was

inflicted when Donna was still alive. A bullet was also

found in Fred’s body behind the upper breastbone,

which Dr. Cihak concluded was the cause of death.

Dr. Cihak offered his opinion that Donna and Fred

were dead at the time of the fire.

Shackelford was indicted on February 11, 2000,

and charged with two counts of first-degree murder,

first-degree arson, conspiracy to commit first-degree

murder, conspiracy to commit arson, and preparing

App. 5

false evidence. Trial began on October 16, 2000, and

concluded December 22, 2000. The jury returned

guilty verdicts on all counts charged in the Indict-

ment. Sentencing commenced on August 27, 2001,

and, on October 25, 2001, the district court read its

Findings of the Court in Considering Death Penalty.

As to Donna’s murder, the court found that the State

had proven beyond a reasonable doubt two statutory

aggravating factors: IC. § 19-2515(h)(2) (2000) and

ILC. § 19-2515(h)(10) (2000).? As to Fred’s murder, the

court found the statutory aggravating factor under

LC. § 19-2515(h)(2) (2000). After weighing the miti-

gating factors against the individual statutory ag-

gravating factors, the court concluded that the miti-

gating factors were not sufficiently compelling to

render the death penalty unjust, and sentenced

Shackelford to death for both first-degree murders.

Shackelford was also given prison sentences for the

other felony offenses. The judgment of conviction was

filed November 1, 2001. Shackelford appeals from his

convictions.

On April -8, 2005, the district court addressed

the parties’ motions for summary disposition regard-

ing Shackelford’s petitions for post-conviction relief.

The court granted Shackelford sentencing relief,

concluding that Ring v. Arizona, 536 U.S. 584 (2002),

mandated that the jury conduct the weighing of

* The statutes are currently codified at I.C. §§ 19-2515(9)\b)

and (9k) and consist of identical language.

App. 56

5. ata grand jury proceeding in Latah

County which was authorized by

law.

If you find any of the above have not been

proven beyond a reasonable doubt, you must

find the defendant not guilty of Preparing

False Evidence. If each of the above has been

proven beyond a reasonable doubt, you must

find the defendant is guilty of Preparing

False Evidence.

We find that the term “produced” was not ambiguous

in the jury instruction. The jury instruction itself

answers the question of what the term “produced”

meant because it provides that the evidence was

produced “at a grand jury proceeding.” Thus, Shackel-

ford’s argument that “produced” may have meant

actually making the tape or giving the tape to some-

one or bringing it to someone’s attention is invalid

because the evidence had to be produced as genuine

or true at the actual grand jury proceeding. There is

nothing ambiguous about the jury instruction when

read in its entirety. Therefore, we find that the jury

was properly and adequately instructed.

3. Post-Conviction Issues

Shackelford raises a number of post-conviction

issues dealing with the effectiveness of his counsel

during the guilt phase of his trial, as well as a Brady

claim. He maintains that the district court erred in

summarily dismissing his claims that he was de-

prived the right to counsel of choice, and that his

App. 57

counsel was ineffective due to lack of qualifications,

in impeaching State’s witnesses, and in preparing

defense expert witnesses.

a. Standard of Review

An application for post-conviction relief under the

Uniform Post Conviction Procedure Act (UPCPA) is

civil in nature. Workman v. State, 144 Idaho 518, 522,

164 P3d 798, 802 (2007). The applicant for post-

conviction relief must prove by a preponderance of

evidence the allegations upon which the application

for post-conviction relief is based. Jd. Unlike the

complaint in an ordinary civil action, however, an

application for post-conviction relief must contain

more than “a short and plain statement of the claim”

that would suffice for a complaint under I.R.C.P.

8(a)(1). Id. Rather, an application for post-conviction

relief must be verified with respect to facts within the

personal knowledge of the applicant. Jd. “The applica-

tion must present or be accompanied by admissible

evidence supporting its allegations, or the application

will be subject to dismissal.” State v. Payne, 146 Idaho

048, 561, 199 P.3d 123, 136 (2008); see also I.C. § 19-

4903.

b. The district court did not err in

denying Shackelford’s Brady claim.

Shackelford asserts that the State failed to

disclose material that would have undermined the

testimony of Dr. Robert Cihak in the form of peer

i=

App. 58

review notes provided by Dr. John Howard. The State

contends that Shackelford failed to establish that the

State was required to disclose Dr. Howard’s notes or

that the notes would have resulted in a different

verdict.

The United States Supreme Court held in Brady

v. Maryland, 373 U.S. 83, 87 (1963), that the sup-

pression by the prosecution of evidence favorable to

an accused upon request violates due process where

the evidence is material] either to guilt or to punish-

ment, irrespective of the good faith or bad faith of the

prosecution. Subsequent to Brady, the Supreme

Court expanded the duty to include volunteering

exculpatory evidence never requested, or requested

only in a general way. United States v. Bagley, 473

U.S. 667, 682 (1985). However, the prosecution need

volunteer evidence only when suppression of the

evidence would be “of sufficient significance to result

in the denial of the defendant’s right to a fair trial.”

United States v. Agurs, 427 U.S. 97, 108 (1976).

Showing that the prosecution knew of an item of

favorable evidence unknown to the defense does not

amount to a Brady violation, without more. Kyles uv.

Whitley, 514 U.S. 419, 437 (1995).

To prove a Brady violation, three components

must be shown: “The evidence at issue must be favor-

able to the accused, either because it is exculpatory,

or because it is impeaching; that evidence must have

been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.”

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Thus,

App. 59

a new trial is not automatically required whenever

“‘a combing of the prosecutors’ files after the trial has

disclosed evidence possibly useful to the defense but

not likely to have changed the verdict. ...” Giglio v.

United States, 405 U.S. 150, 154 (1972). Instead, the

Supreme Court has held that regardless of request,

favorable evidence is material, and constitutional

error results from its suppression by the government,

“if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of

the proceedings would have been different.” Kyles,

514 U.S at, 433 (1995) (quoting United States v.

Bagley, 473 U.S. 667, 682 (19.5)). A “reasonable

probability” of a different result is accordingly shown

when the government’s evidentiary suppression “under-

mines confidence in the outcome of the trial.” Kyles,

514 U.S. at 484 (quoting Bagley, 473 U.S. at 678).

Dr. Cihak testified regarding his “guesstimate”

that, based on his examination of the contents of

Fred’s stomach, Fred had eaten “probably several

hours before he — within several hours of his death.”

There are many factors that affect digestion, and

Dr. Cihak offered that “one can never be exact be-

cause one doesn’t know at the time of autopsy what

was going on necessarily from the time that victim

has eaten.” He also explained that determining how

long contents had been in the stomach was “a very

controversial area. And there are people that feel

some factors either speed or delay, and other people

will take the opposite. This is a very, let us say, not

scientifically identified area.” Dr. Cihak also testified

App. 60

that his findings had been “peer review[ed].” In his

post-conviction claims, Shackelford contended that

the State withheld exculpatory evidence by failing to

disciose the peer review notes of Dr. John Howard.

However, as the district court found below, Shackel-

ford was provided with the notes of Dr. Howard

but was not provided with the abstracts that accom-

panied the notes, which consisted ef several scientific

articles questioning the validity of determining a

victim’s time of death based upon stomach content.

As the court pointed out, the abstracts came from

medical journals that were generally available and

did not contradict Dr. Cihak’s testimony that he could

offer only a “guesstimate” of the time of death.

On appeal, Shackelford’s only statement regard-

ing the notes of Dr. Howard is as follows: “The State

failed to disclose material which would have under-

mined the testimony of Dr. Cihak. This evidence

consists of peer review notes provided by Dr. John

Howard concerning Dr. Cihak’s ‘guesstimate’ of the

time of death based on stomach contents.” Shackel-

ford argues nothing about how the abstracts or the

notes would have undermined the testimony, nor how

he was prejudiced by any failure to disclose the notes.

Furthermore, we find that there was no prejudice

because Dr. Cihak himself testified that determining

time of death based on stomach contents was a “con-

troversial” and “not scientifically identified” area. We

find that the district court did not err in denying

Shackelford’s Brady claim because he has not shown

the reasonable probability of a different result.

App. 61

c. Shackelford was not deprived of

his right to counsel of choice.

Shackelford argues that because the Latah

County Sheriff’s Department seized nearly $5,000 in

cash from him he could not afford to hire a lawyer.

He.contends in his brief on appeal that he solicited at

least four private criminal defense lawyers for repre-

sentation, including James Siebe, and testified that

the $5,000 could have covered the expense of hiring

an attorney for his initial appearance. Shackelford

asserts that the failure to allow him to choose his own

counsel violateg his qualified right to choice of counsel

and constitutes prejudicial error per se.

The State maintains that Shackelford failed to

establish that $5,000 would have retained an attor-

ney to represent him in a capital double murder case

and therefore this claim fails. The State also argues

that Shackelford has not challenged the district

court’s findings, particularly with regard to his “eva-

siveness,” and that the $5,000 would have been

insufficient to do more than retain counsel for the

“initial proceedings.” In addition, Shackelford pre-

sented no evidence that he had assets close to the

$500,000 trial counsel were paid to represent

Shackelford.

The Sixth Amendment guarantees defendants in

criminal cases the nght to adequate representation

and to a qualified right to choice of counsel, but

“those who do not have the means to hire their own

lawyers have no cognizable complaint so long as they

Lapp. (4

process.” State v. Severson, 147 Idaho 694, ___, 215

P.3d 414, 443 (2009) (quoting State v. Martinez, 125

Idaho 445, 453, 872 P.2d 708, 716 (1994)). The pres-

ence of errors alone, however, does not require the

reversal of a conviction. State v. Moore, 131 Idaho

814, 823, 965 P.2d 174, 183 (1998). The cumulative

effect of the errors we have noted, when viewed in

relation to the totality of the evidence presented at

trial, did not deprive Shackelford of a fair trial.

B. Sentencing Phase

The State has cross-appealed the district court's

grant of post-conviction relief under Ring v. Arizona,

536 U.S. 584 (2002), which set aside Shackelford’s

death sentences for resentencing by a jury. The State

argues that, because the weighing of mitigating

factors under I.C. § 19-2515(c) does not increase the

penalty from life to death, but acttally reduces the

penalty from death to life, the weighing process is not

the functional equivalent of an element of a greater

offense and, therefore, the jury was not mandated

to complete the weighing process in Shackelford’s

case. In addition, the State argues that since the

jury’s first-degree murder verdicts established -that

Shackelford murdered Donna and Fred at the same

location and date, it follows that the jury found the

multiple murder aggravator of [.C. § 19-2515(h)(2)

(2000) beyond a reasonable doubt.

Shackelford contends that his death sentence is

unconstitutional under Ring because the jury did not

App. 75

make the findings of fact that made Shackelford

eligible for the sentence of death. He argues that the

jury could not have found the aggravating circum-

stance under I.C. § 19-2515(h)(2) because the jury did

not take part in Shackelford’s sentencing proceedings

and the guilt-phase verdict is not sufficient to con-

clude that the jury would have found the statutory

aggravating circumstances beyond a_ reasonable

doubt. Alternatively, Shackelford argues that even if

this Court finds that the district judge could permis-

sibly infer the requisite finding of the statutory

aggravator in this case, the district court’s vacation of

Shackelford’s death sentence must be affirmed be-

cause the jury did not weigh the aggravator against

the mitigating circumstances.

Both Shackelford and the State agree that Ring

v. Arizona applies because the Supreme Court re-

leased the decision in Ring during the time the direct

review of this case was pending. See Griffith v. Ken-

tucky, 479 U.S. 314, 323 (1987). The district court

found that Shackelford’s death sentence should be set

aside because a jury, not a judge, must weigh the

mitigating factors against the aggravating factors.

The court did not agree with Shackelford’s contention,

however, that the jury did not find any of the aggra-

vating factors. Instead, the district court found that

the jury’s verdicts for first-degree murder of both

Donna and Fred established the existence of multiple

murders and thus found the statutory aggravator

beyond a reasonable doubt pursuant to I.C. § 19-

2515(h)(2). Specifically, the court stated: “[T]he jury

App. 76

found the Petitioner guilty of the first degree murders

of both Donna Fontaine and Fred Palahniuk at the

same location and on the same date. Those verdicts,

standing alone, appear to establish the existence of

multiple murders which constitutes a_ statutory

aggravator beyond a reasonable doubt.”

The jury here found Shackelford guilty of the

first-degree murder of both Donna and Fred by gen-

eral verdict, which respectively read: “As to the

charge of First Degree Murder of Donna Fontaine

[Fred Palahniuk], we, the Jury in the above entitled

cause, find the defendant: Guilty.” The verdicts for

the murders of both Donna and Fred were based on

jury instructions that instructed the jury to find

beyond a reasonable doubt that “the killing occurred

in Latah County, and in the State of Idaho” and that

“the killing occurred on or about the 29th day of May,

1999.” The district court’s finding of aggravating

factors in its original imposition of the death sentenc-

es was based on both I.C. § 19-2515(h)(2) (2000) and

I.C. § 19-2515(h)(10) (2000), in the case of Donna, and

I.C. § 19-2515(h)(2), in the case of Fred. In its Find-

ings of the Court in Considering Death Penalty, the

district court found, as to Donna’s murder, that the

State had proven beyond a reasonable doubt two

statutory aggravating factors, including: (1) at the

time the murder was committed the defendant also

committed another murder, I.C. § 19-2515(h)(2), and

(2) the murder was committed against a witness or

potential witness in a criminal or civil proceeding

because of such proceeding, I.C. § 19-2515(h)(10). As

App. 77

to Fred’s murder, the court found beyond a reasonable

doubt one statutory aggravating factor, that at the

time the murder was committed the defendant also

committed another murder, I.C. § 19-2515(h)(2).

The Sixth Amendment entitles capital defend-

ants “to a jury determination of any fact on which the

legislature conditions an increase in their maximum

punishment.” Ring, 5386 U.S. at 589. The effect of

Ring was to convert statutory aggravating circum

stances relevant to sentencing into “the functional

equivalent of an element of a greater offense,” which

must be proved to a jury beyond a reasonable doubt.

Id. at 606-09; Apprendi v. New Jersey, 530 U.S. 466,

482-84 (2000). Thus, Ring rendered unconstitutional

the sentencing scheme of I.C. § 19-2515 (2001), which

required the trial judge to make the factual findings

regarding the existence of aggravating circumstances.

State v. Lovelace (Lovelace I), 140 Idaho 53, 66-67, 90

P3d 278, 291-92 (2003). “This Court musi first re-

solve whether the error is harmless beyond a reason:

able doubt where the statutory ag

which render a defendant death eligible, were neither

included in the instructions to the jury nor proven

beyond a reasonable doubt.” State v. Lovelace (Love-

lace II), 140 Idaho 73, 79, 90 P.3d 298, 304 (2004).

This Court will find harmless error under such cir-

gravating factors,

cumstances only if no reasonable jury could find that

the State failed to prove the aggravating factors

beyond a reasonable doubt. Jd.

Based in part on the reasoning presented in a

line of Alabama cases,” the State maintains that

verdicts produced at the guilt stage of a tral can

show that the jury found a defendant guilty of aggra-

vating factors. These findings by the jury in this

instance, the State argues, meet the criteria for the

multiple-murder aggravator, IC. § 19-2515(h)(2). A

similar argument was advanced by the State in

Lovelace I] There, Lovelace had been found guilty of

first-degree murder and first-degree kidnapping

Lovelace I, 140 Idaho at 59, 90 P.3d at 284. However,

the State argued that because the jury had found

Lovelace guilty of kidnapping, it was harmless error

that the trial court did not include the statutory

aggravating factors in the instructions to the jury.

Lovelace IJ, 140 Idaho at 79, 90 P.3d at 304. Thi

Court noted that the State was “asking the Court to

determine what the jury would have found had it

been presented with instructions defining [the statu-

tory aggravating factors that were] to be applied to

the facts surrounding the murder.” /d

To engage in appellate hindsight on this issu¢

such as that advanced by the State, is constitu

tionally infirm. First, it violates the jury-trial guaran

tee for a court to “hypothesize a guilty verdict that

was never in fact rendered — no matter how inescapa-

ble the findings to support the verdict might be!.]’

ry ¥

ine cases inciude irrver

Crim App 2002): Irvin i

2005): and Tomlin v. State, $

Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). Next,

the Sixth Amendment “requires more than appellate

speculation about a hypothetical jury’s action.” /d. at

280. Moreover, to accept the State’s argument would

be to look at the form of the jury verdict, rather than

the effect of using it to sentence Shackelford to death

Ring instructs that this cannot be done. 536 U.S. at

604. Rather, when presented with this same argu-

ment by Arizona — that the defendant had been found

ruilty of a crime which could also serve as an aggra

vating factor — the Supreme Court noted that th

argument overlooks the relevant inquiry of

rather than form. Jd. Instead, if “a State makes an

increase in a defendant’s authorized punishment

contingent on the finding of fact, that fact — no matter

how the State labels it must be found by a wuyr'y

beyond a rea sonable doubt . ld at 602. The refore g

“defendant may not be exposed LO a penalty exceeding

the maximum he would receive if punished according

to the facts reflected in the jury verdict alone.” /d. at

602 (quoting Apprendt1, 53

removed)

In this case, the « narge vo the jury oO

murder for both Donna and Fred had elemen

or about May 29, 1999

\s to the charge of Fi

ontaine [Fred Palahniuk],

» entitled cause, find the defe1

no finding by thi

App. 80

time one murder was committed. the defendant

committed another murder

Therefore, we affirm the district court’s decision

vacating Shackelford’s sentence and its determination

that Shackelford must be resentenced by a jury unde:

Ring because we cannot find beyond a reasonable

doubt that a reasonable jury could find that the Stat

proved that Donna and Fred were killed at the sam:

time. Without analyzing whether Ring requires a jury

to weigh mitigating factors, this Court finds that the

jury was required to find the aggravator, and such a

finding wa not explicit in the first-degree murde!

verdict

11. CONCLUSION

We affirm the district court -on all issues. We

iffirm on the order for resentencing on different

srounds and remand for a sentencing hearing pursu

t to § 19-2515 (2008)

cit)

Chief Justice EISMANN and Justices J. JONES.

W. JONES and HORTON, CONCUR

App. 81

CASE NO. CV01-04272

April 8, 2005 9:40 AM

CLERK OF DISTRICT COURT

LATAH COUNTY

BY [Tllegible] DEPUTY

IN THE DISTRICT COURT OF THE

SECOND JUDICIAL DISTRICT OF

THE STATE OF IDAHO, IN AND FOR THE

COUNTY OF LATAH

DALE CARTER Case No. CV-01-004272

)

SHACKELFORD ) [SP-01-00366]

Petitioner, ) MEMORANDUM

- DECISION AND

) ORDER REGARDING

STATE OF IDAHO, ) THE PETITIONER’S

Rear MOTION FOR SUM-

MARY DISPOSITION

The Petitioner, Dale Shackelford, has filed a

motion for partial summary disposition of his claims

under the Uniform Post-Conviction Procedures Act.

I.C. §§ 19-4901-4911. Oral argument on the motion

was heard on November 15 and 16, 2004. The Peti-

tioner was represented by Mark Ackley and Kimberly

Simmons of the State Appellate Public Defender’s

Office. The Petitioner participated by telephone from

the Idaho State Correctional Institution in Boise. The

State was represented by Robin Eckmann, Senior

Deputy Prosecuting Attorney for Latah County. The

Petitioner’s motion is now ready for disposition.