State v. Aragon

Idaho, Plaintiff-Respondent, STATE of ARAGON,

Mark Emilio

Defendant-Appellant.

No. 14771.

Supreme Court of Idaho.

June 1984.

Rehearing Denied Nov. 1984.

Remittitur and Order Nov. Fallowfield, Ketchum,

Robert for defend- ant-appellant. Jones, Gen., Thomas, Atty. Lynn

Jim E. Gen., Boise, plaintiff-respondent. Sol. BAKES, Justice.

Appellant was convicted of first murder in beating eight death of month old Monique Longoria and was sentenced to death. appeals He both his conviction addition, and his sentence. we review pursuant duty case to our under I.C. § 19-2827 independently review sen- imposing penalty tences of death to en- sure that those sentences are free from error, proportionate just. and are and We find that no reversible error was committed court, by the trial and we affirm the convic- tion and sentence.

Viewing the evidence the record most favorably respondent, to the as we must on Barsness, appeal, the facts adduced at trial are In early appel- as follows. living lant was in Ketchum with Teresa Monique daughter, Longo- Watson and her 10, 1982, April placed ria. On Watson Mo- nique in the unattended while she bathtub appellant ate lunch. Ten minutes la- ter, appellant went to use the bathroom. Watson testified that about five minutes Monique gasp later she heard a from pounding point, loud noises. At that Wat- doubt, “The court is the court stated: investigate. able the bathroom to son went into toilet, mitigating circumstanc- sitting on the find appellant unable to observed She aggravating like he was hand in the tub overcome the with “one es which could appellant’s At on her.” splashing comply water must with circumstances direction, left the bathroom Watson The court must and legislature’s mandate. After a short living room. returned to of death on impose the sentence does time, the bathroom emerged from Appel- Aragon.” Emilio Mark defendant take the if he should and asked Watson appeal. errors on numerous lant asserts replied in Watson baby out of bathtub. then reentered Appellant the affirmative. A. Watson, indi- then called the bathroom wrong argues that the trial court something Appellant cating defining into the bathroom baby. Watson went in its instructions erred breathing. baby that the of first observed and the elements “malice” and baby into the bedroom She took the definitions argues that the murder. He cardiopulmonary resuscitation. performed sufficiently distin- did not given to injuries to the point she noticed At that murder committed with guish a between sum- appellant asked baby’s head. She malice, second de- may be first or which ambulance, Wat- an but he refused. mon murder, murder committed with gree and a an ran to summon ambulance. son then willfulness, and premeditation, deliberation her, returned, appellant asked she When degree murder. always first which is you going to tell them?” She “What are distinction between sufficient Without the truth.” replied, going “I’m to tell them elements, argues, a these person a of first may erroneously convict hospital, Monique was taken to the local murder, condition, penalty the death and, degree she for which of her critical because Utah, facts of the City, may imposed, Lake where the was transferred to a Salt be and hospital. Doctors there examined her murder support case a second her, died on attempted conviction, penalty to revive but she unavaila- the death per- April autopsy An was If were punishment. as a form of ble testimony indi- formed. Medical at trial argues, imposition of happen, appellant Monique cated that died from blows unjust be rendered penalty the death would head, probably a minimum of two and three in violation of disproportionate, and Testimony blows. indicated that blows States of the United eighth amendment equal inflicted of a force which were were Constitution. four- dropping Monique off a three- or defined given by the court Instruction 23 story building three times. Testi- two or as: murder mony injuries indicated that the could a hu- killing of the unlawful “Murder is accidentally have been inflicted aforethought. malice being with man Monique herself. activities of manifested of mind “Malice is that state feloni- unlawful and doing of an by the I deliberately, and intentionally, act ous Appellant was convicted of first excuse. legal cause or without and, by jury presentence murder a after implied. It is express or “Malice be investigation aggravation/mitiga- and an a delib- manifested there is express when hearing, The tion was sentenced to death. away unlawfully to take erate intention explanation court issued a detailed trial im- It is fellow creature. life of a that he had considered in miti- the factors provocation plied no considerable when aggravation. detailed gation and After a at- circumstances when the circumstances, appears, or mitigating discussion of killing an abandoned tending the show finding statutory aggravat- three upon malignant heart.” beyond a reason- ing circumstances existed nothing is murder. If further The first sentence of the above instruction character- § killing, directly is izes the murder is of the taken from I.C. 18-4001.1 degree. higher second To constitute the paragraph third is I.C. directly taken from § degree, offense of murder the first 18-4002.2 wilfulness, there must be deliberation degree mur- Instruction 25 defined first premeditation in addition to malice der as follows: aforethought. defined in Degree “Murder in the First mani- “Wilfulness means that there was perpe- this case as all murder a clear intent to take life. fested wilful, deliberate by any trated kind premeditation means “Deliberation and killing. premeditated and conceived done with reflection be- commission of the “In prove order to upon forehand and not done a sudden Degree, the First crime of Murder pre- passion heat of or other condition following elements must be each of the cluding the idea of deliberation. doubt: proved a reasonable require ap- “Premeditation does not an killed; (a) being human was That preciable space of time between the unlawful; (b) killing was That the killing; they may kill tention to (c) killing was done with mal- That the as successive instantaneous aforethought; ice thoughts mind.” willful; (d) killing That the incorporated parts of the This instruction deliberate; (e) killing That instruction, previously and also mentioned noted the set out in I.C. 18- elements (f) killing premeditated.” That the was 4003.3 degree 27 defined second Instruction jury An that instruction murder as follows: essentially of a statute follows the words Degree “Murder in the is defined Second “Ordinarily, the lan normally is not error. in this case as all other kinds of murder. in defin guage employed by legislature the prove “In order to the commission of the suited ing a crime is deemed to be best Degree, crime of Murder in the Second predicat cannot be purpose, and error following each of the elements must be instruc upon ed its use in informations proved beyond a doubt: reasonable 409, 404, Brooks, Idaho 49 tions.” State v. killed; (a) being That a human was (1930); v. An State 288 P. 894 see also (b) unlawful; That killing the was (1966). 169, 210 stine, P.2d 91 Idaho 418 (c) killing That the mal- was done with the lan follow these instructions Because aforethought.” ice statute, not error it was guage of the gave following The court then the Furthermore, major portion give them. 28, distinguishing struction by ap elements requested these instructions differentiating degree first and complains second Particularly, pellant. 28, gave murder: an claiming it given instruction terms “deliber improper definition preceding “As set forth instruc- However, given murder, “premeditated.” any killing tions on ate” and unlawful substantially identical to 28 is being aforethought human with malice instruction killing attending show an aban- 1. "18-4001. stances Murder defined.—Murder is the malignant killing heart." being doned and unlawful of a human with malice aforethought____" (a) Degrees mur- All “18-4003. murder. — by kind of perpetrated ... der which wilful, Express implied 2. “18-4002. malice. killing premeditated deliberate may express implied. —Such malice be It is or degree. of the first murder express when there is manifested a deliberate unlawfully away intention to take the life of implied fellow creature. It is when no consider- the second "(g) murder are of All other kinds of provocation appears, degree.” able or when the circum-

363 requested Ap- requested defendant’s instruction 12. Appellant reasonable doubt. pellant appeal cannot assert as error following instruction: giving he himself of an instruction which you “When are beyond a convinced rea- Mississippi, requested. Henry v. 379 U.S. sonable doubt that the crime of murder (1965); 13 408 85 S.Ct. L.Ed.2d Defendant, has been committed State, (Wyo. 562 P.2d 679 Daellenbach but have a reasonable doubt whether 1977). such murder of the first or of the degree, you

The instructions did not blur second give must to such distinction second between first and Defendant the benefit of that doubt and Jury read in murder. must be instructions fixing return a verdict the murder as of whole, entirety, their as a their iso degree.” the second 101 parts. Griffiths, lated State v. Idaho Hunter, In See I.C. 19-2105. State v. 55 (1980); Tisdel, 610 522 P.2d (1934), Idaho P.2d 301 we noted (1980); Idaho P.2d 1326 State v. instruction, that such requested, an Peterman, given should jury be inform the (1979). reading the instructions as a right defendant’s to be convicted whole, they internally note that are we the offense all where of the elements have consistent, they sufficiently define for proven beyond been a reasonable doubt. jury the distinction between We noted given instructions hand, second murder. the one On Hunter did not sufficiently instruct was informed of the definition of However, point. on this Hunter does murder, killing involves not require particular that this instruction malice. Malice was as a defined “state of given be automatically upon request with- mind” manifested an intentional or de out regard par- circumstances liberate The jury act. was instructed that given. ticular case the other instructions express implied. malice These As this noted years Court three later in were proper definitions of malice and its Vlack, Van interrelationship with the definition of mur giv- this instruction not be need der. en if subject the matter is in other covered Further, jury the was instructed that if gener- the instructions. This is line with nothing malice, than more the intent to instructions, al requested rule in that Idaho act, do an unlawful proven beyond was a law, even if on correct the need be doubt, reasonable then the crime could not given subject if matter the instruc- the of be first jury murder. The was in- tion given is covered other instructions. structed if it beyond could find a rea- Griffiths, supra; See State v. State v. sonable doubt three other elements—will- McKeehan, 808, Idaho P.2d 886 91 430 fulness, deliberation premeditation— (1967). then the guilty defendant was of first de- case, jury properly In the was gree Malice, murder. the intent to act structed on the difference between first feloniously, was properly distinguished murder, degree murder, second willfulness, from life, the intent to take the other The premeditation, lesser included offenses. beforehand, conceived all the ele- deliberation, was also instructed that done with reflection. The proven charged ments of the crime must be properly was on the instructed addi- tional a and that if it prove elements reasonable doubt necessary to degree murder, guilty could not thus there was find defendant no er- ror. charged proceed crime it must to determine guilt or innocence of the defendant

B. any of the lesser offenses defined for the Appellant Thus, jury. also subject asserts error in the matter defend- court’s instructions to jury concerning requested ant’s instruction sufficiently was 364 instructions, given by

covered other appellant’s requested Appel- instruction. there was no error. alleges that, law, lant matter of “As a

Teresa Watson’s was not testimony corrob- C. However, orated.” record discloses otherwise. throughout Idaho appellant an in case law sought At trial years has duty protect sufficiency defined the parent struction on the of a to corrob- oration necessary its child. instruction refused for conviction. The This a corroborating Appellant assigns the trial this re need court. evidence offered connect Appellant’s fusal as for error. rationale defendant the crime. Evans, that, State v. requesting this instruction was it 102 Idaho (1981); 1220 Bassett, could be shown Teresa was an State v. Watson 86 Idaho (1963); P.2d 246 accomplice, legal duty pro to 385 because Mundell, so, tect her her failure then Idaho (1945); child and to do P.2d 799 State v. Gilbert, testimony her would then be cor have to (1943). 142 P.2d 584 roborated, without such corroboration While the corroborating evidence must be not have independent could been convicted. of the accomplice’s testimony, However, assuming Bassett, such there was supra, State v. it need not be legal duty part on the of the witness Wat sufficient and of itself to convict the son, her adequately Gillum, and that failure to defendant. State 39 Idaho crime, carry separate (1924). it out constituted a P. Corroborating testimony slight does not follow that her conduct would may be only go and need to one necessarily accomplice her an Evans, make fact. material supra; State v. Aragon crime for Mundell, defendant supra; State v. Brown, State v. charged. In for her (1933); order conduct ele 53 Idaho 26 P.2d 131 State v. accomplice status, vate her to an Orr, the evi (1933). In addition, reasonably dence would have to be suscep the testimony entirely cir- concluding tible of that the witness Watson Mundell, cumstantial. supra; State v. aided, abetted, counseled, induced, pro Brown, Gillum, supra; State v. State v. cured the commission of the murder of the supra. past, upheld we child. The trial court submitted that issue sufficiency of the in situa- corroboration to the jury by three dealing instructions tions where independent there was identifi- with accomplices and the necessity cor a ski cation of mask worn the defendant roboration of testimony, crime, their night which cor and hair taken rectly stated the law on that subject.4 mask closely from the that of the matched trial defendant, court did not err in failing give Evans, supra; where "INSTRUCTION accomplice NO. 18 sufficient to make in its him an abetting aiding, Some or actual commission. encouragement accomplice person "An is a in concerned part essential. his crime, directly commission aof whether he NO. "INSTRUCTION participates in the act commission of the consti- or not in this case was "Whether witness tuting the offense or aids and abets in its com- mission, or, accomplice previous being an as present, defined in not has advised or encouraged you, jury, is for to determine from its commission. struction at, in, presence acquiescence “Mere circumstances testimony or silent as all and the not, consent to the commission an by offense is shown the evidence. act, sufficient, duty in the a legally absence of NO. 20 "INSTRUCTION be, reprehensible may however to constitute a conviction can- “It is the that law in Idaho principal, one a abettor, accessory, an an aider and accomplice, testimony anof be had on not accomplice. or an evidence, by other he unless is corroborated accomplice joined "An is one who is or united itself, the aid of the testi- without another; with felony; one of several concerned in a accomplice, to connect the mony tends of the crime; co-op- an associate a one who offense; of the with the commission defendant erates, aids, committing assists the offense. sufficient, if it corroboration is and the "A mere mental state of uncommunicated offense, merely of the shows commission by- acquiescence part consent or stander, on the of a the circumstances thereof." being instigated, where a crime is is not Aragon also said that Emilio does supported the victim the Brown condition of baby like the and Teresa had to talk used where the inference that force was letting baby her take the with charged rape, v. Emilio into defendant was Adair, (1978); alleges that the withhold- Appellant her.” prosecution as de- ing report where the defendants were identified of this being in trial. the truck used to commit the crime him of a fair prived approximate at time the crime was argument the same Appellant asserted committed, Bassett, supra; State v. new court in a motion for the trial before that the statements and actions of the de- evidentiary trial, held an and the trial court fendant after sufficient his arrest April that on hearing which disclosed accomplice’s testimony, to corroborate an beating of the deceased the date Brown, supra. child, Femling of the Ketc- Jerry Officer

In this case there was more than received the tele- Department hum Police sufficient corroboration of Teresa Watson’s Wat- phone from Teresa communication testimony. testimony by There was Brown, mother, Dorothy and made a son’s neighbor indicating appellant pre that had that conversation. handwritten note of viously Monique threatened to out throw of However, report typed up never moving pickup stopped crying, unless she County prose- and forwarded to the Blaine presence her in and had abused his on at Rather, cuting attorney’s office. Officer occasion, picked up least one when he her Femling telephone related that conversa- Testimony and threw her onto a couch. Gary Starkey, investigator tion to an Monique’s treating physicians indicated County prosecuting attorney’s the Blaine great that a deal of force would have to office, day who the next contacted Mrs. inju in order inflict the been used concerning Brown the matter. Officer addition, Monique appel ries suffered. In Starkey testified that Mrs. Brown told him placed through lant was on the scene daughter that she had never seen her Tere- testimony of two ambulance drivers. grandchild, although sa Watson strike the These drivers testified as to the condition she had seen her shake the child when it appellant. of both Teresa Watson and cried too much. Mrs. Brown also advised hysterical, Teresa Watson was described investigator that at an earlier time she was described as mute and complaint had filed a with the Health & demonstrating no reaction to the fact that Department in Twin Falls. Star- Welfare Monique injured. neigh had been Another key’s impression of that conversation was bor also testified to agitated Watson’s con Brown, custody that Mrs. who had dition. This is more than sufficient corrob approximately child for one to two months oration of Teresa testimony. Watson’s daughter Tere- after it was born before her baby away, upset sa Watson took the D. daugh- her approve she did not because Appellant argues keep wanted to cus- lifestyle, he was ter’s and she addition, denied a fair prosecution trial because tody of the child herself. failed to investigator Starkey disclose material Specif evidence. record reflects ically, defense Depart- counsel did not learn & Welfare until contacted the Health report after trial of a Jerry Officer in Twin Falls where Mrs. Brown ment Femling Warner, reported which he complaint. a statement Miss made her mother, made Teresa Watson’s discussed the matter with Mrs. who caseworker According Brown. report, Starkey, they investigator Mrs. testified that Femling prior Brown had talked to Officer complaint had received the from Mrs. death, Monique’s stating to investigated that “Teresa in and had whether or not Brown past for, had hit being properly the child and shakes it the child cared crys. when it She has called child concluded that there was no indication that center on properly caring abuse Teresa before. Mrs. Teresa Watson was not for her child. The caseworker testified that ry. Her statement that she had called the she had concluded that Teresa Watson did child abuse center ap- on Teresa before get along with her mother and that the pears to reflect her own motive to mother wanted the child to raise for her- custody obtain Accordingly, the child. Accordingly, department self. had tak- the statement does not establish the mate- en no action on Mrs. complaint. Brown’s riality necessary to constitute a violation of prosecution’s either the duty constitutional hearing After foregoing testimony, exculpatory to disclose information under concluding and after prosecuting Agurs, United v. supra, States or a viola- attorney’s investigator office and its were tion of Accordingly, appellant I.C.R. 16. never aware Femling that Officer had deprived was not of a fair trial. made the handwritten note referred to above, the trial court concluded that no E. right

violation of the defendant’s to dis- occurred, covery had accordingly de- Appellant argues also that evi nied the motion for new trial. presented dence at trial was insufficient to prove premeditation. deliberation and duty Prosecutors have a constitutional analyzing appellant’s contention, appro disclose to the defendant exculpatory priate standard of review is whether there information in their control. v. State competent substantial sup evidence to Horn, 192, (1980); 101 Idaho 610 P.2d 551 port jury’s Warden, verdict. State v. see also United v. Agurs, States 427 U.S. 21, (1979); 100 Idaho 592 P.2d 836 State v. 97, 2392, (1976). 96 S.Ct. 49 L.Ed.2d 342 52, Griffith, (1975); 97 Idaho 539 P.2d 604 which, Exculpatory evidence is evidence Cypher, State v. 92 Idaho 438 P.2d 904 known, would have created a reasonable (1968). appeal Our function on is to exam guilt doubt that did not otherwise exist. supporting evidence, ine the place not to Brown, State 98 Idaho 560 P.2d 880 jury’s ourselves in position reweigh (1977). prosecutor’s A failure to disclose significance of evidence as it relates to exculpatory such evidence is a denial of specific Evans, elements. supra; Harwood, process. due State v. Cysewski, State v. (1972). However, to con- (1980). facts, appeal, On all and infer process, stitute a denial of due exculpa- facts, ences to be drawn from those are tory information must be shown to be ma- construed in upholding favor of terial. the lower Supreme As United States Barsness, court decision. Court noted 102 Ida Agurs, United States v. ho supra, P.2d 1044 appeal dis missed 454 U.S. 102 S.Ct. “The possibility mere that an item of L.Ed.2d 373. might undisclosed information defense, helped might have affect- The properly given the follow- trial, ed the outcome of the does not ing instruction: ‘materiality’ establish in the constitution- “To Degree establish the crime of First 109-110, al sense.” 427 U.S. at 96 S.Ct. Murder, direct evidence of a deliberate at 2400. premeditated purpose kill is not appellant urges The evidence that us required. necessary elements de- accept exculpatory does not meet the premeditation may liberation and of materiality test established in federal proof ferred from the of such facts and and state cases. circumstances as will furnish a reason- able foundation such an inference.”

The record reflects that Mrs. Brown’s hearsay, statement was We conclude that and she had no there were sufficient persona] knowledge daughter of her Teresa facts and circumstances to furnish a rea- hitting her child. Her statement that she sonable foundation for the inference that would shake the child when it cries was at these example, elements existed. For most way exculpato- cumulative and in no appellant’s pre-exist- there was evidence of ing dislike appellant, for the victim. There was testi- provoke threat to or him inten- mony indicating previous against tionally. threats defendant The himself admitted by the victim appellant. hitting There was also the child with his fist. The court § testimony indicating prior incidents of mis- also found the existence of I.C. 19- Furthermore, 2515(f)(6), treatment of the victim. the defendant utter exhibited inju- medical evidence disregard Again, established for human life. this find- by ries received ing supported by appellant the victim were unusual is evidence that and difficult to achieve and must calmly, yet violently, have been acted and refused to by victim, extraordinary inflicted force. In addi- though given render aid to the even tion, the fact that opportunities, there was more than one though several and even supports finding precon- such blow a peril. of a was obvious the victim was in mortal Appellant’s ceived intent to kill. up demeanor His concern was to cover his own injuries after the were participation Finally, inflicted is also a in the incident. § appellant basis for the inference that had court found the existence of 19- I.C. planned injuries 2515(f)(8), to inflict Monique. He a has exhibited calm, was refused to aid the propensity poses victim or seek to commit murder that a help any way, began plan- continuing society. finding instead threat This ning up how he could cover his supported by appellant’s past involvement is criminal record, in the incident. From this evidence the charges which includes of child reasonably could premeditated deadly infer a weapon, abuse and assault with a as killing. deliberated by That verdict will well utter lack of remorse shown not be appeal. disturbed on appellant over the death of the child.

F. II Appellant argues aggra that the In cases im- penalty where death § vating posed, circumstances found in I.C. 19- duty we have a to conduct an inde- 2515(f)(6) -(8) are unconstitutionally pendent review of the case to ensure that vague. argument This has been raised in penalty imposed without resort to previous penalty several of our death passion prejudice imposition and that the cases, and has disposed been of in penalty dispro- those of such is not excessive or § by cases the actions of this in placing portionate. Court I.C. 19-2827. limiting construction on each of these nothing There is this record to indicate It longer circumstances. can no be claimed Instead, passion prejudice. a resort to these circumstances are unconstitu virtually we find an error-free trial con- tionally Sivak, vague. See State by judge giving ducted a trial intent on (1983); P.2d every opportunity possible defendant to ob- Creech, (1983); 105 Idaho adequately tain a fair trial. The Osborn, applicable instructed on the law to this (1981). aggravating All of the circum case, presented and the evidence at trial by sup stances found the trial court are supports the first murder verdict ported by competent substantial evidence jury. returned and thus will not be disturbed. compiled The trial court an extensive list

The trial the exist findings mitigating court found and found no circum- ence of the outweighed gravity circumstance in 19- stances I.C. 2515(f)(5), especially aggravating that the murder was circumstances. The court heinous, statutory aggravating atrocious and cruel. exist found three circum- ence of this circumstance supported stances existed a reasonable doubt. evidence that the severely possi- victim was in The trial court considered all of the through force, jured mitigating urged by ap- the use of circumstances tremendous ble though the eight pellant, possibility even victim was an month and also considered the possibly pose mitigating old child who could not of the existence additional 368

circumstances, severity of the blows dealt. but after consideration de- because of defendant, sug- cided that none of the either factors The character of citizen, gested by appellant by here, exemplary or considered is not that of an court mitigating on its own constituted a appar felon with but rather of a convicted pro- in circumstance. We find no error ently respect for the law or fellow little cedure trial court in mak- followed beings. appellant’s two of human At least ing findings. its involved disre many previous convictions others, including spect welfare of for the conducting proportionality In our deadly for assault with a one conviction § 19-2827, review under I.C. we conduct a appellant knifed weapon, an incident where imposed, and the review sentence a man in a bar. cases, in imposed sentences similar to as sure that the sentence this case was An of recent similar cases examination disproportionate. compar excessive or In easily aligned indicates that this case is cases, ing this case with other death we penalty the death was with others which generally consider the nature of and the cases, imposed. In all of the more recent committed, motive for the crime such as and the char- the cruel nature of the crime Gibson, our 106 consideration State v. of the defendants were similar to the acter 54, (1983), Idaho 675 P.2d 33 v. State In and Paradis case at bar. both Gibson Paradis, 117, (1983) 106 Idaho 676 P.2d 31 the murder committed was brutal and (killing eye of an to another homi witness character of the defendants was less than cide), the sentence as an indication that prior exemplary as reflected their crimi- imposed proportionate murder was to other Sivak, In defendant and a nal records. Sivak, supra, cases. In v. we con State brutally gas sta- cohort murdered a female the “heinous nature of the crime sidered Again, tion attendant. the record of the ... and the nature and character of the spotless. defendant was far from In deciding defendant” in that the sentence Creech, the nature of the crime and the In proportionate just. that case was especially character of the defendant were Creech, 362, v. 105 Idaho 670 P.2d State supportive imposition of the death (1983), thorough review 463 we conducted a cases, penalty. In all of these recent implicating penalty of cases the death surrounding aggravating circumstances proportionality the sen determine out- the commission of the crimes far tence. weighed any mitigating circumstances nothing in We find the record of found, could be found. We indeed bar, the case at after a consideration of imposed in this case find that the sentence crime, the character of the nature of the imposed in similar proportionate to those defendant, penalties imposed in similar death cases. that the sen cases which would indicate conducting proportionality imposed disproportionate tence here our In committed an inten we have also examined numerous unjust. crime review involving killing human be perpetrated helpless tional act on a victim cases of a necessarily involving a provoked ing, although who could not have the attack. brutal, murder, or a sen only charge The attack was and one that of first could have intended to kill the victim tence of death.5 this case been 2101, 934, 308 77 L.Ed.2d 103 S.Ct. 5. Those cases we have considered include: U.S. 461 917, Carter, (1983); P.2d v. 103 Idaho 655 — State —, Bainbridge, 698 P.2d 335 Idaho State v. 391, Olin, (1982); State v. 103 Idaho 648 434 117, Paradis, (1984); v. 106 Idaho 676 P.2d State Stormoen, (1983); Idaho P.2d State v. 103 203 Gibson, 54, (1983); v. 106 Idaho 31 State 675 Osborn, 83, (1982); 102 P.2d State v. 645 317 Sivak, 900, (1983); P.2d 33 State v. 105 Idaho (1981); State v. Idaho 631 P.2d 187 Creech, (1983); 674 P.2d v. Idaho Grif- State (1980); fiths, State 101 Idaho 610 P.2d 522 (1983); Major, 670 P.2d 463 State v. Padilla, (1980); 620 P.2d 286 Mitchell, 101 Idaho (1983); 655 P.2d 703 Fuchs, 100 Idaho cert. den. possessed presentence an in the admission of the found the defendant vestigation report hearsay and other justified kill tent his victim which objection of the ac- evidence over charge of first murder. We ac deprives the cused accused knowledge superior ability the trial court’s right cross-examine and confront to to observe witnesses and their demeanor witnesses. trial, during sentencing phase of a and especially unique ability of the trial regard set forth in My reasoning in this judge and demean- to observe the character in dissenting opinions my detail in State of defendant, or of a tool essential to 362, Creech, P.2d 105 Idaho 670 v. Idaho goal tailoring to a Sivak, ultimate a sentence (1983), 105 and Idaho v. 463 State of particular unique defendant. With that (1983). 900, P.2d 396 Idaho 674 mind, ability of the trial court in we have BISTLINE, Justice, part concurring in determined that the sentence of death im dissenting. posed present in the case is not out of do, agree, I am able to While proportion the sentences heretofore im no majority opinion wherein it finds posed. judgment of conviction failing in to treat Watson as an ac- error imposed sentence are affirmed. duty of a complice on the basis child, protect its and further parent SHEPARD, J., DONALDSON, C.J., and predicated agree that error cannot be concur. prosecutor to transmit the failure of Justice, HUNTLEY, specially. concurring Femling, I am unable report of Officer disposition of majority’s to concur in the I majority opinion concur in with the refusing assigned giving in the errors caveat and reservation that I remain of the of instructions. opinion sentencing capital the Idaho process respects: is unconstitutional in two Instruction 28 and Defendant’s I. Given Requested

(1) Nos. 12 and 13 Instruction provide It does not for utilization of the jury, which is in violation of both reading doubt from a There is little the Idaho and United States constitu- majority opinion and the State’s brief tions; and upon by extensively relied that the latter is (2) nothing improper The sentencing proceeding, as con- the former. There is v. suggested

ducted As I State the trial courts with the about that. 618, (1984) approval court, Iwakiri, P.2d by permitting 106 Idaho 682 571 286, (1979); (1969); Needs, 883, Rodriguez, State v. 460 P.2d 711 Idaho P.2d v. 93 Idaho 99 591 (1979); 766, Jiminez, 140, Lindquist, 130 State v. 99 Idaho 589 456 P.2d 784 State v. 93 Idaho 918, (1979); 87, Bradley, State, P.2d 101 State v. Idaho (1969); 98 King P.2d 254 v. 93 Idaho 456 (1978); Birrueta, P.2d 152, 575 631, 1306 v. Idaho Gonzales, State 98 (1969); Idaho 438 P.2d State v. 92 Allen, (1977); 570 P.2d 868 State v. 98 629, (1968); Chaffin, v. 92 Idaho 448 897 State 782, Ward, (1977); Idaho 572 P.2d 885 State v. 706, State, (1968); Carey v. 91 Idaho P.2d 243 571, (1977); Idaho 98 569 P.2d v. 916 State Koho, (1967); State v. 91 Idaho P.2d 836 429 450, Gerdau, 516, (1975); 96 Idaho 531 P.2d 1161 Anstine, (1967); State v. 91 423 P.2d 1004 Powers, 833, State v. 96 Idaho P.2d 1369 537 Gish, 169, (1966); P.2d 210 State v. 87 Idaho 418 881, (1975) 1089, cert. den. 423 U.S. 47 96 S.Ct. 341, (1964); Clokey, P.2d 342 State v. Idaho 393 99; Hokenson, 283, L.Ed.2d State v. 96 Idaho 322, (1961); v. P.2d 159 State 83 Idaho 364 (1974); Hatton, P.2d 487 527 State v. Idaho 95 395, Burris, (1958); P.2d 265 State 80 Idaho 331 856, (1974); Standlee, 64 522 P.2d State v. 96 266, (1957); Snowden, 706 79 Idaho 313 P.2d v. 165, (1974); Foley, Idaho 525 P.2d 360 v. State 365, Buchanan, P.2d v. 73 Idaho 252 524 State 222, (1973); 95 Idaho 506 P.2d 119 State v. Owen, 394, (1953); P.2d v. 73 Idaho 253 State Beason, 267, (1973); Idaho 95 506 P.2d 1340 (considered (1953) only in terms of crime 203 Atwood, 124, State v. 95 Idaho 504 P.2d 397 imposed; penalty overruled on committed Sanchez, 125, (1972); State v. 94 Idaho P.2d 483 323, Shepherd, point v. 94 law State substantive Gomez, (1971); 173 State v. 94 Idaho 487 Pettit, 227, (1971)); v. State 486 P.2d 82 Idaho Dillon, 698, (1971); P.2d 686 601, (Ct.App.1983); P.2d 767 Idaho 661 104 942, cert. den. 401 U.S. 91 553 Fenley, 646 P.2d 441 v. State (1971); S.Ct. 28 L.Ed.2d 223 State v. Rada- (Ct.App.1982). (1970); baugh, 93 Idaho State rule clusion finds its basis instructions which first submission allege tions, (Bistline, J., concurring identical if there legitimate appellate giving Instruction No. In this rely upon and second that error was committed law that a language case, court concern because [to the briefs of counsel. the certainly degree party error State’s jury] differentiated between cannot now on his in the murder. cannot invite error of the trial court’s requested should be entitled brief tells us that the trial court’s well-recognized “by requesting dissenting), it is not our Such instruc- appeal con- an Brown Md. 886 and S.W. 737; v. State 105 So. v. St.R. 850; [246 118 Greenleaf, 71 N.H. Floyd Henson, S.E.2d 29], 150 A.2d N.Y. 633; Winton State v. Nelson [218 829; (d) Wilson, (N.J.), [226 Lowe 769; 437], 159 N.E. N.C. v. at 889. 221 Kan. State v. Bonofiglio, N.C. C.J.S. 52 A. [148 State, v. 415], 11 234 Iowa 895; People v. State, Minn. 571], Faust, Homicide, 712, 54 A. 151 Tenn. S.E.2d 23 54 A. 285], 181 N.W. 67 N.J.L. 60, 11 N.W.2d 390; 254 N.C. ^[90] S.E.2d 321; v. 38; 99; § 33(a) Fla. P.2d State Caruso State State State 598; 268 51; at v. complain appeal.” and then of it on State’s candidly opens The State’s brief its discus- Brief, majority opinion p. assigned give 10. While the sion of the failure to defend- Requested ant’s correctly “given states that instruction 28 No. 13 with the concession that it “does not take issue” with the “con- substantially to defendant’s re- is identical killing tention that a can be intentional 12,” No. 12 was quested instruction Given being degree without first murder.” vacuum, requested requested in a but Brief, p. argument State’s 19. The is then along Requested defendant’s No. 13. made that Given Nos. 28 and made the en- Unlike No. which the trial court jury “properly aware that the defendant’s “covered,” Requested dorsed as No. 13 was kill necessarily intent to was not indicative instruction, important and “refused.” That degree of first murder.” Nos. 28 Given “refusal,” supporting au- its endorsed and majority opinion. 27 out in the are set 247 thority, p. found at of the Clerk’s Obviously, those instructions do not come Record, are as follows: up quality forthrightness rea- beyond a find you If Requested conciseness of defendant’s No. Defen- that doubt sonable majority points 13. Given No. as the deceased struck dant murder, out, merely degree defined second her, but kill intended elements, necessary three one and stated instant at formed tent was “(c) killing is That the was done of which led to striking which aforethought.” re- with malice This is a pre- without death, so he did murder, quirement nothing and adds deliberation meditation 28, simply it re- to Given No. because of murder convicted be cannot No. peated in the first sentence of Given degree. first amount to 28. Given No. 28 adds that to Dong Sing, 35 Idaho 616 P. State v. [208 additionally “there degree first murder 860]; P. Shuff, 9 Idaho 115 State v. [72 willfulness, pre- must deliberation and be 664]; Vlack, 57 Idaho 316 State v. Van [65 gave instruction meditation.” Neither Dillon, 736]; P.2d v. 93 Idaho 698 State they jurors any as to how would indication 553]; P.2d Kitchen v. United States [471 be- apply legal concepts to the facts those 720; [D.C.Cir.,] People Isby 205 F.2d [30 And, counsel fore them. as defendant’s 405; 879], P.2d v. Kelley Cal.2d points out in his brief: 357], [945]; P. 94 [Kelly], Kan. [131 refusal was that “The result of that 126], Conway Mo. 171 S.W.2d State v. [351 they jury was not instructed 677; 259], 231 Bass v. State Tenn. [191 find a reasonable doubt could 707; State, 126 Fla. S.W.2d Forehand v. kill vic- -Aragon Mr. intended to 241; Ind. So. Barker State [238 tim, killing being murder of without that 680; 271], 150 N.E.2d Brown v. State fact, Jury In- degree. [220 since the first majority errs in misclas- kill- thus seen No. 28 told them that struction No. 28 with those instruc- Given ing they sifying in the if found statutory on lan- based premeditated take life and are intent to which tions complaint is made. premeditation place take no that that could which and of guage, killing even the intention to kill and then, to, is that the down What it comes thoughts of the occurred as successive 28 neces- No. Given majority, upholding mind, they concluded they may well have the basis doing so sarily is restricted mur- obligated were to find first present But, prior to even invited error. to kill. While they der if found an intent death mandating review our statutes may correct state- be instructions ple- sentences, such requires penalty law, that the important it is ments of the of whether nary irrespective review intent to instructed on properly appeal, wants to appeals or even defendant being their possibility kill to avoid many other occasions has on this Court Brief, incorrectly.” Appellant’s applied which had error considered fundamental p. 25. in the properly preserved trial not been it, question “The an earlier court stated As court. construed, whether, when so read Owens, years ago, Four reasonably can be held that (1980), 632, pointed I P.2d 787 619 Dong v. been misled it.” State the 860, my time with 616, 627, that it was before 208 P. 862 out Sing, 35 Idaho of (1922). legal schol- it had declared the doctrine Lawyers, judges, and Court terminology mightily with the struggle ars fairness: fundamental can jurisprudence. Jurors attendant to Cariaga, 95 Idaho “In v. State readily grasp that expected to scarce be (1974), opinion the notes that There is legal minds find difficult. ‘During argument before this Court oral taking applicable the for not no reason raised to whether or question the as giving a re- circumstances and facts and crime appellant was convicted of the not which molds the law to quested instruction charged.’ 95 Idaho with which she was readily in a understandable those facts at 34. To a contention at every so do- fashion. There is reason for right had waived his that the defendant Moreover, try might, I am un- ing it. as by failing object, to this challenge to that majority in the able to ascertain where said: Court mention, disposition, even opinion a “ ‘Rather, of we feel the issue refusing assigned the error in made of has waived whether or Requested defendant’s No. 13—for which might have is con- any objections she effort may any reason it be that individual Hag- in by our decision State trolled in thought that line is unwarranted. P.2d 260 94 Idaho gard, Moreover, here is that a further concern that where a where we held of majority point, at in defense one been commit- error has fundamental these Given No. states that “Because trial, this Court ted in a criminal language instructions follow the objec- though no may consider it even statute, give to them.” was not error in the trial court. was made tion statute, in Given No. 23 is the words of “ ‘ that he appellant contends “The I defendant but am unable to see where deprived process and due was denied I where complained has of it. Nor do see prosecuting a fair trial because complained defendant has of Given Nos. Haggard at trial that attorney elicited under or 27. It is Given No. 28 which is alibi at the judge of his did not tell fire, and it is NOT in the words of hearing. Appellant main- preliminary statute, attempt explain rather an but to information should that this tains statutory language laymen, supply to jury’s made available for have been statutory interpretations laymen those doing the low- so supreme years ago. It is consideration by earlier courts prior him a fair trial. deprived decisions of the er court Court had considered to raise failed for defendant fundamental Counsel error. It becomes evident the cross-examination objection to an that the Court will consider fundamental ordinarily of trial at the time error when it chooses do so—much assign- not consider this would Court in may as sentence review it conduct a However the obligation ment of error. review, meaningful may simply or it recite state to see that defendant re- statutory that a limits sentence within fair trial is primary ceive and funda- Nield, period. [Citing mental. In the case of cases.] (1984) J., (Bistline, dissenting). P.2d 618 fundamental error in a criminal case Ordinarily approaches such inconsistent Supreme Court consider unfortunate, would be viewed as but here it same even though objection no had My is an intolerable state of affairs. recol- been made at the time of trial.” 94 lection is that the defendant’s Owens Idaho at 486 P.2d at 262. appeal purpose clearing was for the Because the variance between com- conviction, felony record of a and that the plaint appel- and conviction denies the defendant was not sentenced to con- law, process lant due she has not In today finement. the case before us though right object waived her even appeal purpose defendant’s is for the objection previously no has been made. obtaining a fair trial before he is executed ignore can this the issue Neither Court murder, for the crime of first assigned not been because it has proposition somewhat different than that original in the briefs.’ 95 Idaho error before the Court Owens. There is no 903-04, (emphasis at 523 P.2d at 35-36 justification majority’s for the choice to not added).” 101 Idaho at 619 P.2d at apply the Court’s fundamental error doc- (emphasis original). point I language trine this case. Owens, majority refus- Court brief State’s which demonstrates the Having apply ed to its own doctrine. a few that likely State’s view the Court would years Haggard, supra, earlier in in State apply the doctrine in a criminal case of quotation, proclaimed above that the the which there can be none more serious and pri- obligation providing of a fair trial is more final: fundamental, mary and and that this Court error, it, “If there was invited technically consider error which has and as a result thereof he cannot now properly preserved, majority not been challenge ap- the trial court’s action say in nevertheless elected to in Owens peal. that case: however, find, “Should the court that “Owens, however, object did not to the propriety the trial issue of the and, pursuant instruction at trial to Ida- pre- court’s definition of deliberation law, ho must be deemed to have waived appellate appropriate meditation is any objection to the instruction. I.C.R. review, that such a the State submits 910, 30; Collinsworth, and suf- represented definition a correct (1975). States, they P.2d 263 ‘The 539 law and did not ficient statement of the wish, may past be able to insulate convic- Respon- error.” constitute reversible by enforcing tions the normal and valid Brief, p. 17. dent’s object jury rule failure to to a any is a waiver struction claim of anticipation as to Although the State’s See, Fed.Rule e.g., error. Crim.Proc. 30.’ has turned out review to be un- Court’s Carolina, Hankerson v. North 432 U.S. founded, it is also to be noted that 233, 244, 8, 2339, 2345, 8, n. 97 S.Ct. n. engaged that, in arguing has State al- (1977).” L.Ed.2d 306 101 Idaho at though premeditation deliberation and in at P.2d 795. 619. lumped together No. 28 in the con- Given junction meaning and then so, defined as done doing completely refus- majority beforehand, with reflection and my suggestion that the conceived ed to comment on “ analysis language A killing careful of such re- is willful when it is inten- ‘[a] indicating accidental; veals that the trial court was tional and not it is deliberate ’ ” synonymous that such terms are ... or purpose whenever the intent to take Brief, 17). (Respondent’s p. should There upon life is formed deliberation or consid- eration; little doubt that the court was not indi- premeditated it is whenever de- intend, cating, did not so consideration, liberation or however and‘“premeditation” words short, “deliberation” precedes pur- the execution of the however, synonymous. question, The are formed; pose it is felonious when it is ” understanding is otherwise: What was the unlawful.’ 57 Idaho at 65 P.2d at jurors? If one of them misun- 750. failed, derstood, system espe- then the has agree I am unable to that the two instruc- cially where the of the instruction balance same, substantially tions are and see jury passion that a sudden heat told similarity. little “deliberation,” preclude would the idea of “premeditation.” mention but made no Requested II. Defendant’s No. 26 says problem The “Thus opinion majority says that such in- appellant’s contention is one of form rather (which struction is set forth therein and for substance, simply than does not affect ready below),1 reference is footnoted if re- propriety Respon- of the instruction.” quested, according Hunter, to State v. Brief, p. Presently, dent’s I am not so P.2d “should be earlier, persuaded. As I said fin- have given to inform the of the defendant’s legal wrestling est of minds with consid- right to be convicted of the offense premeditation erations of deliberation proven where all of the elements have been easy explain do not find it to each other Frankly, a reasonable doubt.” I do certain, conceptual relationship. For comprehend what the author of the juries given explana- should be the best of majority opinion making had mind in tions, language. and in understandable that statement. Given no. set out in Here, Requested defendant’s No. had it majority opinion, sets out the elements given been with Given No. proved beyond which must be a reasonable adequately explained would to them prove in order to murder in the first doubt how the premeditation applied element of degree. Given no. also set out to the facts and circumstances of this case majority opinion, lays out the elements determining whether the defendant was proved beyond a reasonable must be guilty of first guilty murder or in prove doubt in order to murder the sec- murder in degree, assuming the second degree. ond that it was first guilty found that he was murder. provided jury The trial court also placing with both the burden of urged upon The State has us that an proof the definition of reasonable and given Vlack, instruction in State v. Van doubt: 316, 348, (1937), 65 P.2d defines the “premedita- “Jury “deliberation” and No. 7. A Instruction defendant language tion” in presumed similar to Given No. in a criminal action is to be “in and that it is contrary proved, substance the same as.” innocent until the is and Brief, Respondent’s instruction, p. 18. The in as to case of reasonable doubt shown, No. guilt satisfactorily Given the Van Court whether his is Vlack “sufficiently question guilty. said covered the he is entitled to a verdict of premeditation,” presumption places upon reads as follows: This the State Requested degree, you give 1. Defendant's to such Instruction No. 26: of the second must doubt and return a you Defendant the benefit of that beyond "When are convinced a reasonable fixing as of the second de- doubt that the crime of verdict the murder murder has been com- Defendant, R., by gree.” p. mitted but have a reasonable 252. doubt whether such murder was of the first or statute, proving guilty beyond 19-2005, (now the burden of him of the Sec. I.C.A. a reasonable doubt. 19-2105).” I.C. 55 Idaho at at 303. “Reasonable doubt is defined as fol- doubt; possible lows: It not a is mere given nearly same in instruction was everything relating because to human af- identical language years in three later fairs, evidence, depending on moral Vlack, supra: State Van open possible imaginary is to some ‘“You are pro- instructed that the law which, doubt. It is that state of the case that in vides the event an accused shall comparison after the entire and consider- proven deemed beyond a reasonable evidence, ation of all leaves the guilty doubt to be degree of some of a jurors minds of the in that condition that crime, but a reasonable doubt shall exist they say they abiding cannot feel an con- degree as to what of crime such one is viction, certainty, to a moral of the truth of, guilty that there shall be a conviction Tr., I, charge.” of the p. Vol. 81. only degree of the lesser of crime. It readily jury seen that the fully “ determining your ‘In what verdict correctly instructed as to the law of will, you if you shall be find the defend- reasonable doubt. There is no contention guilty ant and shall have such reasonable mind, otherwise. With that well in one degree doubt as to what of crime he is opinion

then reads from the majority “that of, guilty him give the benefit of this given instructions Hunter did not ” 353-54, doubt.’ 57 Idaho at 65 P.2d at sufficiently jury point.” instruct the on this By point” “on only this can be meant on proving beyond all of the elements a rea- fairly opinion In a recent relied on exten- Now, sonable doubt. this is indeed star- State, sively by both the defendant and the tling, and defense counsel well wonder Koho, majority reading has overlooked noting first Court “The pages 27 and 28 of his brief. What the jury required degree to find the opinion actually say Hunter did is there set evidence, murder from the not on the basis forth, verbatim, and is as follows: presumption,” observing also that very carefully “We have examined the language the instruction did follow the instructions of the trial court and find § 19-2105, approved I.C. this instruction: fully correctly that while the court “ by ‘You are instructed that the aver- jury generally instructed the as to the ments of this information the defendant doubt, law of reasonable it did not in- murder, charged with the crime of if they struct found it es- only which includes not murder of the evidence, by tablished a rea- degree but also murder of the sec- sonable doubt that the defendant had manslaughter, ond both vol- offense, public committed a but were untary involuntary. as to which of doubt two more de- “ ‘When a crime is statute differen- grees guilty, he was he could be convict- degree, duty tiated into it is the ed of the lowest included to determine their verdict what charge stated the information. thereof, any, if commit- has been appellant clearly unques- The was and ted. tionably requested entitled to have “ given jury.” instruction to the 55 Idaho jury ‘Should the find from the evi- P.2d

at at 303. dence that the defendant has committed public in charged offense the informa- only The Hunter held that the Court tion but entertain a reasonable doubt as clearly unquestionably defendant “was degrees to which of the several he is requested entitled to have the instruction guilty, only then he can be convicted given jury,” clearly to the but and unmis- highest degree guilt as to his takeably requested observed that have, evidence, you language struction was “stated in the exact which from the no ” § 454-55, following reasonable doubt/ 91 Idaho at instruction I.C. 19-2105 which jury 423 P.2d at 1008-09. tells the that where there is rea- sonable doubt as to which mur- The Court said of the instruction: committed, der was the accused is to re- “It was a correct statement of the intent ceive the benefit of that doubt. applied of the statute to case involv- crime, case, ing degrees particular eye- more than two such In this there nowas as this where the crime. pre- murder of the and witness to As evidence of degrees voluntary prosecution rely upon second man- meditation the had to However, slaughter were in involved. even those circumstances which are laid out in such a language majority opinion. case the of the stat- Based on the record us, would jury ute have been sufficient.” 91 Ida- before it is clear that the could guilty ho at 423 P.2d at 1009. found defendant murder. It difficult, however, readily is to see how the year A later the Court cited Koho and jury pre- could have found the element of again approved an was instruction which Language meditation. of an earlier Court language more in the of I.C. 19-2105: appropriate: is jury “Should find from the evidence nothing appeared “If more than that at public that a defendant has committed a the instant the blow was struck or the Information, charged in offense but killing place took there was an intention entertain a reasonable doubt as to which kill, being to there no time for delibera- degrees guilty, two he is then he premeditation, killing tion would can only highest be convicted de- degree,____” not be murder of the first gree have, you of which from the evi- Dong Sing, 35 Idaho at dence, no reasonable doubt as to his P. at 862. Darrah, 25, 28, guilt.” 92 Idaho (1968). n. 917 n. 4 presented, Under the circumstances here extremely important “However, additionally: Court stated fully correctly would be instructed— this, in only a case such as where two certainly encompasses the notion degrees involved, charged of the crime are comport that the instructions with statuto- giving this language instruction ry prior majority law and decisions. The preferable.” the statute would be 92 Idaho is unfair to the defendant in at- Hunter, at Citing 435 P.2d at 917. tempting equate general instructions on State, Carey Court in proof burden of and reasonable doubt with (1967), again P.2d 836 noted that “If specifical- the reasonable doubt instruction ground ‘has reasonable of doubt statute, ly required by the but does a dis- degrees which of two or more he de- [the system service to the Idaho of criminal guilty, he can be convicted of fendant] jurisprudence. degrees only,’ the lowest of such I.C. § 19-2105, upon Finally, point, I must treat also judge request on this jury.” majority’s must so instruct the with the remarkable statement that the instruction need not be Hunter Supreme As an earlier Court noted in given subject matter is its covered Hunter, today obliged so the Court is This is said to be based other instructions. say that “The clearly Vlack, which followed Hunter Van unquestionably entitled to have the re- strangely, specific no years, three but Van quested given jury.” instruction It language para- is set forth or even Vlack cases, very reading takes little of the Idaho majority opinion. phrased Accord- statute, comprehend the one ingly, perhaps opinion again follow- past the Court in the clearly has seen the brief, ing the State’s and to that source general distinction between a trial court’s resort must be had. defining instructions reasonable doubt and brief, applicability might suspect, its as one proof the burden of The State’s —on Requested the one hand—and on hand an address the defendant’s the other does by opening No. 26 issue with sugges- shall be a conviction of the lesser tion that give requested “refusal to degree of crime. struction, though even a correct statement “In determining your what verdict law, does not constitute error where will, you you shall be if find the defend- subject matter of the instruction has guilty ant and shall have such reasonable been adequately by covered other instruc- degree doubt as to what of crime he is Respondent’s Brief, (em-

tions p. ----” of, guilty give him the benefit of this phasis added). doubt.” nonetheless, The State recog- obvious Assignment 19, of error No. nition Requested that defendant’s No. 26 is 11, urges requested that instruction No. an relating specific statute, instruction to a given: as follows: should have been then declares that: “The they are instructed that can- recognizes “The State that Idaho case upon not convict defendant alone his own appears law support the conclusion confession, unless the same is corrobo- that a defendant is entitled to an instruc- tending rated other evidence to con- tion to the effect nect defendant with the offense commit- convinced a reasonable doubt ted, and the corroboration is not suffi- that the pub- defendant has committed a if merely cient shows the commission lic offense but there is reasonable doubt citing of an offense.” Brickwood-Sackett as to which of two degrees or more he Instructions, 2, vol. sec. which in guilty he can be con- [the defendant] upon State, (Tex.Cr. turn relies v. Cox degrees victed of the lowest of only. such App.) case, 69 S.W. a Texas which § See, 19-2105; Idaho Code upon analysis, a careful approved while it Hunter, (1934). 55 Idaho 161 39 P.2d 301 is, requested, the instruction held it bar, In the appellant case at did sufficient, not that it would have instruction, request such an which the give been error to refuse to it because ground trial court refused on the that the the court there “Appellant’s said: iden- subject matter thereof was covered tity as the may criminal rest alone other instructions to be submitted to the upon his uncorroborated confession” Brief, jury.” Respondent’s p. 26. (italics ours), and proof herein the Nevertheless, conceded, having so and hav- fact that the deceased was dead and had ing specifically mentioned the statute I.C. been proved absolutely killed was majority 19-2105—which the avoids do- doubt, beyond peradventure of a aliunde ing upon “that insists considera- the confessions or admissions or state- —the whole,” tion of the instructions as a defendant, ments of the and this court as refusal of the instruction was not error. early considering as Fifth Idaho the suf- Brief, Respondent’s p. majority, 26. The ficiency of confessions a first course, out, I pointed repeated as have murder case stated: thought point- it is not so for “____ reasons —but Then there is other evidence ed out. opinion, than his confession which in our Vlack, justify jury, State’s brief does would the verdict of the Van .cite saying points of it that certainty guilt this Court there “con- Smith, strued almost identical of the defendant.” instructions {State 1060.) very cover the same Ida. 48 Pac. instruction as re- quested by in the at case Furthermore, State, supra, has Cox bar. 57 Idaho at 354 P.2d at [65 753].” been somewhat modified a later deci- Brief, Respondent’s p. Naturally, one court, State, sion of the same Ingram v. turns p. to Van Vlack at 65 P.2d at Tex.Cr.Rep. 182 S.W. 290 at only: and this is what one finds holding that confessions be used to doubt shall proof exist as to what aid even the corpus delicti of, guilty crime such one is that there not alone the connection of the defendant requested Appellant instruc- has cited authori with the crime. The no prejudicial that have held it error to ties clearly tion furthermore erroneous was re refuse an instruction such as it the law as this: that went quested, appears under evidence such as by this court heretofore laid down as upon in this case. The authorities relied evidence, in to the confes- what addition by defendant state that confessions defendant, necessary of the is sions the defendant are sufficient to connect not state sustain a conviction and did crime, point him with the which the re corroborating are suffi- slight that facts cover, quested instruction did not cient, clearly has been the rule in which this court has held that it is not error to appears this since 1902 as from the State requested refuse a instruction which following quotation, approval cited with though partly right partly is likewise er proposition in v. on this same State Wil- (State 536, Boykin, roneous. v. 40 Ida. son, (2d) 51 Ida. at 9 Pac. 157; Farnsworth, 234 Pac. “____ well-recognized It is also a rule (2d) 295.) Ida. 10 Pac. the fact that a crime has been com- course, foregoing, is a discussion of proved by extrajudi- mitted cannot be give requested a refusal to defendant’s pris- cial confessions or statements of the instruction which told the oner, and that there must be some evi- defendant in that case could not convict- corroborating dence or circumstances upon confession That ed his own alone. tending to show that a crime has been passage nothing had to do from Van Vlack committed, aside from such confessions give with the refusal of a trial court to Jones, (People statements. v. 31 Cal. Hunter instruction.1 565, 566; Evidence, Wharton’s Criminal Regrettably the State’s brief has led the ed., 632, 633.) 9th secs. People v. majority grievous plays into error which (N.Y.) 53, 16 Wend. Badgley, it is said: large part promoting miscarriage proof ‘Full body of the crime—the justice which occurs here where the Court corpus independently of the con- delicti— endorses the defendant’s denial of a fair fessions, required is by any trial. cases; many slight and in them cor- ” III. The Sentence roborating were held facts sufficient.' (Italics ours.) (State Keller, 8 Ida. regard, in this Little need be said be- 699, 70 Pac. 1051. And see cause there should be a second trial free of Downing, 23 Ida. 540 at 130 Pac. belief, error. I the firm continue to be of 461.) prior penalty well-documented in death cases, pointed jury sentencing by This distinction is out in Sulli- mandated State, 633, 639, Tex.Cr.Rep. I van v. 51 the Idaho Constitution add that the sentencing procedures S.W. as follows: court this case far, hearsay— show far less of extraneous “It is well settled that the confession subject right of confrontation— justify of the accused alone will not penalty than we have seen in the death question conviction. This has been fre- before, gone cases and add that quently by decided various decisions of sentencing the district court’s decision is a state; but, aware, so far we as are clarity model of which should be made is settled that the death of the deceased judges, long to other district so available being brought shown to have been about gained one more vote cannot be to return procurement criminal agency jury sentencing. to constitutional one, some confession sufficient to party making error, connect the the confession trial I Were there no would never- lacking requisite propor- with the crime.” here a theless find earlier, Hunter, 303; pointed p. 1. As I have out Van Vlack fol- tion. 55 Idaho at 39 P.2d at Vlack, year, very p. lowed Hunter a scant and the Van 57 Idaho at 65 P.2d at 753. approved same Court in both cases the instruc- tionality legislature experi- practicing attorneys which Idaho has that which of demanded, having in reliance on done so necessarily ence in the criminal field Supreme penalty the death decisions of the to know: Court of the United States. preparing In for this case I was certain Gibson, would come back with a murder (1983), accurately predicted P.2d 33 I verdict on I evi- what knew State’s proportionality go by would the boards dence to be. There seemed to be High prognostication Court—which probable two interpretations of that evi- correct, percent suggested was 100 and dence: either amounted Emilio’s actions by the might that it as well be discarded malice, express to kill an intent to legislature. readily It attain- Idaho is not child, they implied mal- amounted to able, proportionality and review as to ice, a wanton disregard of willful cannot be and has not been Court (the unreasonable human risk so-called meaningful. legislature, should it ad- malignant heart.) abandoned and Either issue, might, dress that at the time same way, it would amount to murder. There- manner, actually a statesmanlike examine fore, it became my important most con- desirability returning penalty death cern that the jury be made to under- sentencing juries. the Idaho It to would be stand between difference interesting any legis- to know the names of degree second murder under Idaho law. lators who on that issue have read and That law states that “the kill- unlawful opinions Huntley studied the Justice ing a being of human with malice afore- myself. thought” is murder. Malice is defined as I if any do submit that semblance of express, either “a un- deliberate intention achieved, proportionality is to be that it will lawfully away to take the life of a fellow by-product returning be a natural creature”, implied, no “when consider- juries. function to the provocation able appears, or when attending killing circumstances show ON DENIAL OF PETITION FOR malignant an heart.” In abandoned and REHEARING order for it to be first murder it BISTLINE, Justice, dissenting from deni- willful, accompanied by must have been petition al of rehearing. for life, to and deliberate a clear intent take Counsel for defendant and the trial reflection premeditated, done with large help bar at cannot but be devastated upon and conceived beforehand by the summary rejection Court’s Further, passion. sudden heat of petition for rehearing. impor- On far less have been con- intent to kill need not matters, involving tant life versus particular ceived or intended dollars, death but even in Court has time, purpose to length of the deliberate granted recent rehearing times in order other killing may follow each kill and the gain argu- benefit of a second oral thoughts of the rapidly as successive ment which homes in on narrowed-down mind. message today issues. The sent out is that murder Those are the definitions will penalty Court not do so in death murder in the State and first cases, notwithstanding that it would take and, obviously, any jury instruc- Idaho little effort and one hour for the five of us upon those to be based going tions were gain the benefit to be derived from hear- Therefore, my I felt it to definitions. ing counsel for the State and counsel for requested instructions duty to submit the defendant questions discuss the serious clearly differentiate would most instructions which were delved into in degree murder and second between first depth (Bist- by one member of the Court line, J., their definitions within the confines of dissenting). Counsel for defendant Idaho, supporting very under the laws of the State explains his brief well reflection, incomprehensible mention must confusing On be made of however Beason, be. those definitions string found in the voluminous I very find it disheartening that both majority citation of cases the declares itself the State and this my Court consider use Here, in its footnote 5. have reviewed of those definitions to amount to “invited proportionality. Bea- indeed, study is a reasonable, error.” What is most to sub- fours, including son is a exactly on all ease mit some sort of “model” instructions majority child. The who murder of a you which going know are rejected to be today proportionality problem sees no attempt or to make Idaho’s definitions as part Aragon’s Emilio sentence was also possible? clear as My first concern was ' the Beason only majority. Beason was not jury’s verdict, appeal. not the murder, degree convicted of second but Defendant’s Memorandum in Support of only charged degree with second mur- Petition Rehearing. Proportionality der. will never exist so Because the balance of the defendant’s long prosecutors have discretion in as presents brief compelling why reasons re- and, assuming charging, yet, worse argument order; and reconsideration are in prerogative it is in their to also tell appended it is hereto. judge which convicted first murder- die and which should live. This ers should Touching briefly on error in the trial discussed in problem has heretofore been give court’s failure to the Van Vlack/ not be penalty other death cases. It should Hunter instruction, type Defendant’s Re- prosecutor judge who makes nor quested No. it is assumed that defendant decision, jury. The that awesome but the my must feel that if views on that issue could Idaho Constitution makes it so. response not raise a from the other members Court, argument by further counsel would futility be but an exercise in is a —which APPENDIX affairs, sad state of where the can- State has didly Requested conceded that Defendant’s IN MEMORANDUM SUPPORT OF Instruction No. 26is a correct statement of the PETITION FOR REHEARING I in concluding law. Earlier said Part II Rightly wrongly, or I chose the latter majority that “the State’s brief has led the approach and following submitted the re- grievous I into error.” would have 8-13, quested jury instructions Numbers R. least, thought, years until recent at I, pp. Vol. 243-245. strong this rather statement alone would 8. Murder is the killing unlawful of a precipitated rehearing a in order to being aforethought. human with malice statement, verify accuracy or express implied. Such malice be reflection, cause it to be withdrawn. On express It is when there is manifested a re-argument, even without the benefit of I deliberate intention unlawfully to take surmise now that what was intended was away the life of a fellow It is creature. being inadvertently the statement of led implied when no provocation considerable error, because, grievous I noted into appears, or when the at- circumstances earlier, agree brief did on the State’s tending killing show abandoned an § 19-2105, applicability of I.C. which is the malignant heart. VanVlack/Hunter crux of the instruction. brief, my express although aforethought, The State’s view erro- Malice either neous, respect doing decidedly implied, more fair in that is of an manifested intentionally, opinion. Obviously, than the Court’s I.C. and felonious act unlawful instruction, requires legal cause or special deliberately, 19-2105 a and without pre-existing imply because it is inconceivable excuse. It does (under instructions) apply general emnity the individual could it hatred or toward knowing injured. without even its existence. instant of intent was formed at the order to 9. convict defendant death, led to he did striking which so degree, express of the first of murder premeditation and deliberation without proved malice must be reason- be convicted of murder of the and cannot doubt, will implied malice suff- able degree. first ice for murder of the second I did not submit requested those instruc- degree. murder tions with the intention that a line here or a into 10. Murder is classified two de- line there or even entire instructions be grees, you find the should Defend- given out of context but rather that they murder, your will be guilty duty ant given verbatim, and in order. That they your to determine state verdict requested are separate five instructions you whether find the murder to be of the rather than one continuous instruction is degree. first or second only for purpose clarity, not because perpetrated A murder importance their is disconnected or that one willful, means of kind of deliberate instruction important is more than the oth- killing, is premeditated

and murder of er. degree, other the first and all kinds of degree. murder are of the second was, my It and is conclusion that a first Any killing unlawful of 12. a human degree murder can occur under the laws of being, aforethought, malice with is mur- only Idaho if: der; nothing if but further characterizes intentional; killing 1. is and it is of the offense murder the second higher degree. To constitute the offense 2. that intent to kill prior is formed to degree of of murder the first there must infliction the death blow. willfulness, premedi- and be deliberation if a Conversely, murder is either uninten- aforethought. tation in addition to malice tional or intentional but the intent to kill is is that By killing willfulness meant formed at the instant the death blow is accompanied a clear must be intent struck, you only degree have second mur- By premed- to life. deliberation and take fact, only der. In possible fact situa- is meant that it done with itation tion degree for an intentional second mur- and reflection conceived beforehand and der is where intent to kill is formed at passion. a upon not sudden heat But the instant the death blow Any is struck. it not mean that must have this does other intentional murder has to be first any par- been or intended conceived degree murder If you definition. intend length of time for deliberate ticular to kill prior and that intent is formed to the killing purpose may to kill and the follow blow, by infliction of the death the succes- rapidly each other as successive criteria, thought sive you mind enough thoughts of the mind. It that willful, a premeditated deliberate and mur- (?) the purpose deliberate to party der. But while slay the fatal blow. before may rapidly attempting get points its execution fol- those two intent and other, jury I proper specifically it is for the across to the requested low each my the shortness to take into consideration instructions numbers 9 and both of considering interval whether which refused. explains of such were 9 Number execution speedy they and that if find express such sudden do malice but not passion malice, kill, and an- to sudden a be attributed deliberate intent then they pre- ger, than to deliberation on rather cannot convict murder one. Number 13 meditation, which must characterize the explains if they that do find deliberate in the higher of murder first offense intent to kill are beyond but not convinced degree. doubt reasonable that intent was prior formed to the you striking a reasonable the death

13. If find they blow then on murder struck the de- cannot convict doubt that Defendant her, stated, previously one. that is the ceased and intended to kill but .As readily comprehension

as to within the be killing intentional situation that can be sec- jurors of men such as who are not ordi- degree ond murder and if is not ex- law. If is so narily educated it plained willful, might convey to the then it mind any talk worded that to the deliberate, premeditated unprofessional ordinary man of successive of an thoughts capacity an incorrect view of the law superfluous. the mind is The case, applicable definitions of is erroneous. you those terms state that kill, form the you intent to kill and then are Dickens, 68 Idaho State v. murder, guilty why so both- 364. er to instruct them? Why simply not apt An instruction that is confuse charge that if it is found murder jury, it requires mislead the or where an malice, express was committed with explanation, or is ambiguous involved guilty Defendant is of first degree murder. uncertain, erroneously states the Why willful, even worry about deliberate law, misleading, confusing or is premeditated? The logical results will given. should be the same. 687; Tay- Idaho P.2d questions answer to those is: that’s lor, 454; P.2d 23 C.J.S. not the law. A murder committed with Law, 1306, p. Criminal express malice does automatically All of the given instructions in a case equate with first murder. But a must be read and together, considered jury must be specific instructed on that where, whole, taken as a they cor- point. It completely absurd to believe rectly state the law and are not inconsist- they could reach that conclusion their ent, may but be reasonably fairly and jury having No own. found the Defendant harmonized, it will be assumed that the to kill not intended but convinced a jury gave due consideration to the whole reasonable doubt that the intent was charge, and was not by misled any isolat- prior formed to instant of the the infliction portion ed thereof. death will blow ever conclude that guilty the Defendant is therefore State Tope, of 387 P.2d 888. degree simply first murder. That will nev- is Certainly it a correct statement of the willful, happen. er The definitions of delib- law jury that the instructions be should erate, premeditated and successive considered aas whole but it con- must be thoughts of the mind dictate a that first cluded that from that consideration the degree murder conviction will follow a find- jury law, could merely understand the ing express surely night of malice as as there, somewhere, that it was in for them day juries follows are unless instructed figure to presume hope out and we and necessarily that it isn’t so. they did so. trial court did not instruct as I re- possible say Of what relevance is it to and, result, quested as a the jury could not the they instructions are proper because possibly possibility have understood the of statutory language consist of ap- and were degree a second intentional murder. proved past? in certainly the That cannot be It cannot more obvious but that the question be the issue. The must be wheth- purpose jury explain of instructions tois jury er the could understand the difference correctly applied the so that it be law can between and first second murder to the facts. from Clearly the instructions. the answer should, possible, A charge jury to a question to that is resounding a “No”. concise, plain, simple, easily be un- and Only by reasoning most of the convoluted clear, It derstood. should be couched was the and this Court able to dis- intelligible language, lan- and such its cern the difference from those instructions. meaning guage readily and as be How can it even be intimated that applied by An they evidence. would reach the same conclusion? If difference, instruction be so possibly should clear and concise cannot understand that Rehearing; Opinion and Petition final; having does source the lan- there- difference now become what Court make? guage fore, the instructions 21-1.2 of American Associ- Standard ORDERED, the dis- IT HEREBY that IS Justice, for Criminal ation Bar Standards comply shall with the directive trict court Appeals; Appellate

Purposes of Criminal by the issuance Opinion this Court Structure, is as follows: Court pursuant to of a DEATH WARRANT (a) first level of purposes Code, as Chapter 27 of Title appeal in criminal cases are: Chapter by 159 of 1984 Ses- amended (i) against preju- protect Defendants sion Laws. proceedings lead- legal dicial error ORDERED, IT IS FURTHER against ing verdicts to conviction and by the of a DEATH WARRANT issuance evidence; unsupported sufficient shall done accordance district court (ii) develop re- authoritatively to and §§ and 19-2715 as 19-2705 I.C. procedural doc- fine the substantive Chapter Ses- 159 of amended law; and trines of criminal sion Laws. uniform, (iii) maintain to foster and practices in consistent standards ORDERED, IT that there IS FURTHER process. criminal 42-day delay period before the shall abe allow a DEATH WARRANT to issuance of Again, my is contention Defendant-Appellant any post- file Eighth the United States Amendment of blindly challenge, required by from I.C. forbids a state Constitution conviction arbitrarily ignoring the difference in 19-2719(2) delay 42-day murder when and second running on the date period shall commence die for and not the oth- defendant can one Remittitur and Order. no less true because prohibition er. That ORDERED, IT FURTHER IS upon distinguish based the failure pending and processing of all filing and language long-approved case statutory petitions by the Defend- new motions law. any appeal from ant-Appellant, any, and this to establish for It is time for Court thereon, court any ruling of the district State, concisely clearly possi- as this as I.C. 19-2719 shall in accordance with ble, exactly constitutes the crime of what 159 of the 1984 by Chapter as created murder. Laws. Session death, A man must be sentenced ORDERED, Chap- IT FURTHER IS murder of a defenseless even for the brutal shall the 1984 Session Laws ter clearly his instruct- baby, unless proceedings apply govern all further to and the difference between first ed in this action. degree murder. To think that the second instructed sheer case was so delusion. August, day of this 30th

DATED Submitted,

Respectfully Robert I. Fallowfield

By /s/ I. Fallowfield

Robert Defendant-Appellant

Attorney for Aragon Emilio

Mark AND ORDER

REMITTITUR having announced heretofore

The Court 1984; June, day of Opinion the 22nd

its denied having thereafter the Court

Case Details

Case Name: State v. Aragon

Court Name: Idaho Supreme Court

Date Published: Nov 26, 1984

Citation: 690 P.2d 293

Docket Number: 14771

Court Abbreviation: Idaho