*1 P.2d 526 Idaho, Plaintiff-Respondent, STATE
v. BEAM, Ray Defendant-Appellant.
Albert
No. 15453.
Supreme Court of Idaho.
Oct. 1985.
Rehearing Denied Dec. 1985. *2 Bishop,
Van Nampa, G. for defendant- appellant. Jones, Gen., Atty. Lynn E.
Jim Thomas, Gen., Boise, Sol. plaintiff-re- spondent.
SHEPARD, following testified to Justice. Beam account The of the crime.1 three of them walked to appeal appellant This is an from Beam’s yard stopped a back near a tree. first degree rape murder and conviction handcuffs, pair Scroggins had a which imposed sentences The and the thereon. he used to manacle the victim and then had court to death for district sentenced Beam oral, vaginal anal sex with her. Beam *3 degree period murder to of first and a fixed then had sexual intercourse with the vic rape. years response for review in We The handcuffs removed so she tim. were appeal pursuant the as to well as replaced dress and then on her could penalty review death sen- automatic of Scroggins wrists. Beam and then walked provisions tences of I.C. 19-2827. We § ditch, during a drainage victim toward the no hold that reversible error was commit- Scroggins which time told the victim twice ted, convictions, we affirm and find the going to victim they were kill her. The validly im- that the sentence of death was pleaded go with them to her and then let posed. Scroggins stream. fell into the shoved her 8, 1983, July body water, of the victim of On the pulled under the her out head then crime, thirteen-year-old girl, a was and slit throat. Beam then held her drainage in the water canal in stopped found of a head under water until she mov sexually Nampa, ing. body Idaho. been Her was in stream. She had left raped and death was due to abused and her August arraignment At the and drowning or to her either a knife wound thereafter, Scroggins Beam and were each day, The criminal com- following throat. a represented by separate pos- The counsel. filed Beam plaint charging appellant was necessity for sible severance of the defend- degree arrested with first murder. He was arraign-, ants’ trials was discussed at the gave in Nevada and a confession to law ment because of the existence of the con- Mi- inculpated enforcement that officials incriminating by Beam and fession certain 11, July a Scroggins. chael Shawn On by Scroggins. madе The State statements complaint charging both criminal was filed empanel juries a motion to made two Scroggins degree Beam and first mur- simultaneously hear the case because der, weapon rape, deadly and the use of a inculpated the Beam confession which in the commission of crime. Scroggins a rule and the in Bruton v. United States, 391 U.S. 88 S.Ct. facts, following The record reveals (1968), con- L.Ed.2d 476 a defendant’s testimony coming much of them from in decid- may by jury fession not be used a 7, 1983, appellant July Beam. On ing guilt of a co-defend- innocence way a friend their home victim and were on ant. Scrog- they Beam and when encountered in Ultimately, the trial ruled favor court allegedly want- gins. Scroggins Beam and empanel juries, motion two of the State’s telephone the four get ed to number and on holding that the cases be severed would go to home for that agreed to the victim’s to both were relevant issues which parents Both of the victim were purpose. defendants, be the cases would inside, the four at that time. Once at work tried, sitting as to jointly juries with both television, following Beam which watched reserved issues. The court all other trial Scroggins girls they if want- asked the and testimony right to determine which mari- go on a walk and offered them ed to presented jury. be each only The men one of the juana. stated and sat juries empaneled The were girls go could with them at a time. Two case simultaneously. Jury A heard the go agreed to left with Beam and victim and case Jury Beam and B heard the against Scroggins. charge using knife clearly Scroggins 1. The for did not believe enhancement commission testimony, Scroggins guilty of the crime. Beam’s as it found rape attempted acquitted him of the
gl9 against Scroggins. When counsel for reports. testimony That logical evaluation engaged Beam cross-examination, was drugs, Beam abused indicated that Jury dismissed, B was and when counsel burglary when the murder was parole for was cross-examining, A Jury committed, partici- exposed to and had been was dismissed. testimony When probativé behavior, sexually deviant pated in much as to prejudicial Beam but to Scroggins animals, impulsive, had tortured admitted, was about to be Scroggins’ Jury adequate conscience. lacked B was to courtroom, be excused from the hearing, sentencing Beam’s Following and vice versa. testimony Most of the 19-2515, court, to I.C. pursuant § the trial pertained to both defendants and was not ag- statutory of three the existence found objectionable either one and was (1) mur- gravating circumstances: therefore juries. heard Separate both heinous, atrocious especially der was opening closing arguments given *4 depravi- exceptional manifested and it cruel before each jury. dis- utter had exhibited (2) that Beam ty; The State’s evidence at trial was not (3) life; that and human regard for substantially controverted and established commis- in the or conduct by prior conduct that the victim’s wrists were bruised and propen- murder, a exhibited had the of sion that there was a knife wound to her right proba- which would murder sity to commit side where one of the defendants cut had continuing to socie- threat a bly constitute slicing her in off her pathol- underwear. A possible six considered court ty. The trial ogist testified toas evidence of in semen 21 Beam that factors: mitigating vagina her and rectum. Blood was found mentally and old; been he had that years in the crotch of pants, area which the co- he had been deprived; that emotionally testimony indicated was consistent with a in- had admitted and police operative traumatic injury to vagina, the inflicted crime; limited he had that the in volvement while she was alive. The knife wounds to mechan- cook and a as a skills employment the victim’s throat consisted of three or de- from substance ic; he suffered that four slashes and were about four inches a in raised he was that and pendency; wide and almost an deep. inch The testi- court setting. The trial family turbulent mony indicated that the throat wounds outweigh did not factors that these found were inflicted alive, while the victim was circum- aggravating the of gravity the but that death was caused drowning. stances. The jury Beam found Beam guilty of death Beam to sentenced court The trial premeditated degree first rape. murder and a him to sentenced and murder for the The Scroggins jury Scroggins found guilty 30 of sentence determinate concurrent murder, of first degree finding that he did the that the event rape in for the years not commit the directly crime but rather upheld. penalty death aided and abetted encouraged and/or murder for the death was sentenced commission, advised its Scrog- and found determinate concurrent ten-year a received attempted rape. juries Both gins guilty of Scrog- The attempted rape. sentence acquitted respective defendant of the their Court. before pending is appeal gins’ using deadly charge of a enhancement (the knife) in the of a weapon (1) commission following errors: the asserts Beam crime. is penalty scheme death Idaho that court hearing, testimony trial sentencing unconstitutional; (2) At Beam’s that defense, certain and the admitting was offered the State into evidence in erred (3) witnesses, calling body; the di- the State three victim’s of the photographs Canyon County mental rector of the Detention 18-207, provides which I.C. § (where incarcerated), Beam was a Center a defense not be shall condition of sergeant, conduct, and one of denial detention center is a criminal charge of prior The defense of dual (4) Beam’s cellmates. called use process; due court Beam. The trial also before it of the co-de- trial simultaneous in a juries investigation presentence psycho- process. due Beam deprived fendants 620 imposition process mitigating Further,
Beam asserts the
of the
as a
factor.
death sentence in this case is violative of
legislature’s
this Court has held that the
the Idaho Constitution because it was im
any mitigating
failure to list
in
factors
posed by judge
jury.
rather than a
This
capital sentencing scheme indicates
in-
its
has held
Court
that neither the United
sentencing judge
(cid:127)tent
that the
entertain the
Constitution,
1,
States
nor ID.CONST. art.
possible
considering any
broadest view
in
7, requires
participation
§
appropriate
and all matters
to a determina-
sentencing process
capital
in a
case.
imposition
tion of
of the
penalty.
death
Creech,
362,
State v.
105 Idaho
670 P.2d
Caudill,
Idaho
222,
State
v.
109 Idaho
1051,
denied,
104
(1983),
465 U.S.
cert.
463
(1985).
621 with the of- connected by the circumstances The fact that crime. of the atrociousness of discretion fense, sound mind and and the body of actual depict the photographs accused.” inflicted the wounds victim and of the the emotions may tend to excite specify any Beam does not instance excluding them. a basis is not jury relating which evidence to his mental condi- Caudill, 222, P.2d 706 109 Idaho v. State tion the trial was offered and excluded 231, Bean, Idaho v. 109 State (1985); 456 18-207, Code, court. Section Idaho does not (1985). P.2d 1342 706 prevent a presenting defendant from rele-
vant evidence of his mental state. We hold
that
complain
cannot
that the
A defendant
three statutes are
not
conflict
emo
jury’s
inflamed or that
since I.C.
18-114
was
and 18-115 do man-
jury
§§
de
which
date
by evidence
the existence
upon
excited
of a defense
tions were
based
accurately
insanity,
that a crime
but rather
for the
I.C.
18-207 reduces
picts
§
method,
question
fashion
mental condition from the
committed
was
was
status of
the crime
a formal
by which
defense to that of an
and atrociousness
Scroggins,
evidentiary question.
18-207(c),
Section
like
committed.
Code,
Idaho
recognize
crime
continues to
the basic
charged
the enhancement
premise
common law
only responsible
in the commission
using a knife
may
defendants
be
asserts
convicted.
fact that Beam
The
crime.
does not
throat
cut the victim’s
argument
It is Beam’s second
full
presenting
from
the State
prevent
I.C.
18-207 violates the doctrine estab
§
circumstances
account of the
accurate
358,
Winship,
In re
lished
U.S.
crime
of the
surrounding the commission
(1970),
S.Ct.
to constitute the crime reasonable doubt. It is asserted that I.C. argues Beam next that he de impermissibly 18-207 relieves the State § process by operation nied due I.C. *6 burden, operates pre of that it as a since 18-207, (a) provides which at subsection § sumption possess that no defendant can “[mjental condition shall not be a de un capacity such lack of mental as to be any charge fense to of criminal conduct.”2 We able to formulate the criminal intent. argues Beam first that 18-207 con I.C. § 18-207(c) pro disagree. specifically I.C. § 18-115, flicts with 18-114 and which §§ prohibited vides that a defendant is showing require during a of intent the com presenting of mental disease from evidence 18-114, a mission of crime. Section Idaho negate or defect which would intent. Code, requires every pub that “In crime or due union, finally Beam asserts he was denied joint there lic offense must exist a court to intent, process by the refusal of the trial negli operation, of act or or criminal 18-115, and the trial court’s sever the two cases gence.” Section Idaho Code defines two-jury, tri- substitution of a simultaneous as an element that is “manifested “intent” imposed, defend- a defense— of incarceration has been 2. “18-207. Mental condition not during facility which Provision for treatment Incarceration— ant shall receive treatment (a) Reception provides Mental condition or less restrictive of for incarceration evidence.— charge any of shall not be a defense to of criminal In event that a course confinement. concluded conduct. treatment thus commenced shall be expiration imposed, prior to the of the sentence 19-2523, (b) provisions If of section for the remаin- the offender shall remain liable Code, the court finds that one convicted Idaho sentence, for of such shall have credit der any of crime suffers from mental condition time incarcerated for treatment. treatment, requiring person be com- such shall (c) Nothing prevent the herein is intended to city or to the board of correction or such mitted county expert issues admission of evidence on the place- provided by official law for as treatment, an which is mens rea or state of mind appropriate facility ment in an offense, subject rules security element of the to the having regard for such conditions of may require. a sentence evidence." the case In the event 622 (1981), disapproved grounds, on other
al. This is the
case to come before
first
113
305,
339,
procedure
Ill.App.3d
in which such a
has
447
Court
69 Ill.Dec.
N.E.2d
utilized,
(1983).
although
been
other courts have
556
Therefore,
process.
reviewed the
we have
Lambright,
7,
As noted in
673 P.2d at
carefully reviewed the record to ensure
date,
including
the authorities
those
that Beam received a fair trial. We find no
disapprove of
cases which
future use of the
reversible error.
multiple jury procedure,
are unanimous
refusing
merely
to reverse a conviction
jury procedure was em
The dual
procedure,
based on the use of this
without
ployed by the trial court here to avoid
specific showing
prejudice.
some
Here
defendants,
prejudice
for rea
to the two
prejudice
we find no indication of
judicial economy,
sons of
and to avoid the
appellant Beam.
v. United
Bruton
problem of the rule in
States,
123,
1620, 20
391 U.S.
88 S.Ct.
argues
prejudice
Beam
result
(1968).
fact that a
L.Ed.2d 476
The mere
through
him
of the
ed to
the admission
two-jury procedure
adopted to avoid
witness,
testimony of the
Sandra
State’s
Bruton
impact
does not defeat
its
Wahlen,
disagree.
fiance.
Beam’s
We
Sidman,
v.
United States
use.
470 F.2d
juries
Wahlen testified before both
denied, 409 U.S.
(9th Cir.1972),
cert.
1158
apartment after
Beam came over to her
1127,
948,
(1973).
260
93 S.Ct.
35 L.Ed.2d
place.
had taken
was asked to
murder
She
juries
Ray
“tell the
told
[Beam]
given
appear
While no courts
to have
evening.”
Jury
(Scroggins jury)
B
endorsement,
jury procedure
dual
a blanket
was excused from the courtroom and Wah
procedure
none of them have held that the
her,
len
Beam had told
then testified that
Smith
See
was a constitutional violation.
(Beam
A
Jury
“I
someone.”
think
killed
DeRobertis,
(7th Cir.1985)
v.
F.2d 1151
758
jury)
and counsel for
was then excused
murder);
v. Lew
United States
(attempted
Scroggins jury
Scroggins moved that
is,
623
argues
assigned
jury.
to each
At the
jury proce-
that the dual
A bailiff
Beam
day
trial,
juries
of the first
both
should not have been used because
end
dure
sequestered
nearby
at a
hotel in such
antagonistic defenses of Beam and
the
Jury
segregаted
A was
from
disagree.
Scroggins
If
manner that
Scroggins. We
a
Jury
one
B. The record
that the trial
jointly
had been tried
indicates
Beam
before
antagonistic
proceeded with
caution
problem of
defenses
court
extreme
jury, the
throughout the trial and we find no abuse
might
very
been
real. The record
have
not
de-
antagonistic
does
reflect
of discretion.
here
problem
Scroggins
as to Beam.
fense
argued
It is
an
that this case was
testify.
only
testimony
The
heard
not
jury system,
the dual
experiment with
(Beam
rape
the
Jury
jury)
A
as to
acts of
po
should not
been
in a
which
used
Beam
Beam
and murder came from
alone.
penalty
death
case.
in
tential
As noted
having sex with the
admitted
victim
Sidman,
1168,
proce
470 F.2d at
“fair new
drowning
Jury
nothing
her.
A
to
heard
dures,
fact
proper
which tend
facilitate
story
contradict Beam’s
that
allowable,
finding,
although
are
not tradi
victim,
the
sex acts
handcuffed
initiated the
Lewis,
v.
tional.” See also United States
the victim’s throat.
and slit
(D.C.Cir.1983),
16
sub
716 F.2d
cert. denied
multi-
A motion for severance
trial of
States,
Motlagh v.
464 U.S.
nom.
United
discre-
ple defendants is addressed to the
492,
(1983).
996,
78
104 S.Ct.
L.Ed.2d 686
tion of the trial court.
I.C.R. 14. While
jury
other courts have used the dual
While
explicitly
do
for a
provide
our rules
not
cases,
in
procedure
penal
murder
the death
procedure,
they
neither
ex-
dual
do
given
only
been
in
two
ty has
and affirmed
prohibit
may pro-
A
pressly
it.
trial court
Williams,
People
cases.
v.
93 Ill.2d
such
join-
prejudicial
whatever relief from
vide
(1982),
309,
97,
67 Ill.Dec.
two second cumstances and found that the laboring defendant under the outweigh gravity burden of did not circumstances the publicity generated by extensive the first aggravating the circumstances. He cor- situation, In trial. such a selection of unbi- rectly imposed upon the death sentence the jurors populat- ased in some of our smaller appellant. difficult, may impossi- ed counties be if not judgments The of convictions and the future, appropriate In in
ble.
cases
imposed
sentences
thereon are affirmed.
total severance
trials for co-defendants
necessary
continue to
desirable.
will
be
and
DONALDSON,C.J.,
BAKES, J.,
con-
cases,
appropriate
jury proce-
In
dual
other
cur.
may
place.
dures
well take
case,
judge
In this
the trial
was cautious
HUNTLEY, J.,
in
concurs
result.
and meticulous in his conduct of the trial
BISTLINE, Justice, dissenting.
juries
the dual
see no indica-
before
we
procedure
tion whatsoever that the
result-
opin-
in
Shepard points
As Justice
out
his
Beam,
any prejudice
in
ed
unfairness
ion,
Court,
opinion
which is now the
for the
or
violation of Beam’s consti-
jointly charged
Beam and
rights.
tutional
The decision to utilize a
trial,
jointly
tried at one
before one
jury procedure
carefully
be
dual
must
judge presiding
juries.
pro-
over two
This
potential
the realization of the
made with
cedure, entirely
precedent in Idaho
without
Here, however,
find no er-
for error.
we
encompassed
and not
in the Court’s Idaho
ror.
Procedure,
of Criminal
the ma-
Rules
jority
justified
said to be
“reasons of
by I.C.
19-
As mandated
§
problem
economy,” and to avoid the
judicial
2827(c)(3),
propor
we have reviewed
States, 391
of the rule in Bruton v. United
imposed
tionality
sentence of death
of the
123,
1620, 20
476
88 S.Ct.
L.Ed.2d
U.S.
whether it is excessive or
here to determine
(1968).
The
rule has been
effect
Bruton
imposed in
disproportionate
penalty
to the
question
I do
twenty years.
almost
not
cases, including
collected in
similar
those
validity in
least. But when the
its
Idaho,
14865,
Stuart,
(Sup.Ct. No.
v.
State
exist,
the rule
reason for the rule does
1985),
3,
and in addition have consid
May
application.
has no
Bean,
the recent cases of
v.
109
ered
State
231,
(1985); and
Idaho
625 weigh given calling stand as testimony carefully to their state Beam to the a state’s recognized the to only by provid motivation shift blame be done witness—which can 136, onto others.” Id. at S.Ct. at 1628 ing prefaced but first excerpts, verbatim added). (emphasis by cautioning Canyon the remarks of Coun Lansing ty deputy prosecutor, Haynes:1 strategy The trial of each of the two co-defendants in the case we review was to Honor, “MR. Your unfortunate- JONES: accomplice, establish himself as but the ly at this time the has to ask for a State trigger and that the other the actual brief recess. obvious; man. That motivation it need going “COURT: There is to be another not be further addressed. Even Justices recess, gentlemen, short ladies and because agreed White and in dissent Harlan were problem bring a witness here. We will that as to a of a confession co-defendant: you back as into the courtroom soon as “As him hearsay, to it was inadmissible possible. presumptively unreliable out-of-court state- (Whereupon, recess a brief was taken. ment of a who non-party was not a witness respective par- Reconvened. Counsel subject to cross-examination.” Here nei- ties, Defendants, together the with ther Beam non-party, nor was a present. following proceedings The trial, but were the both defendants on and Jury the absence both A during both testified the course of the trial B.) Jury and —each, himself, implicating pointed while finger primary guilt other; the at the Haynes? “COURT: Mr. hence, testimony of each should have Honor, “MR. HAYNES: Your beforе we been by “tested cross-examination.” Id. witness, call the next understand with the Wigmore, Evidence at 3. § Cf. two-jury system feeling way we are our That cross-examination should not have this, through request and I would that all by prosecu- been cross-examination Counsel, State, White, especially Mr. tor, by but counsel for the co-defendant— evidence, reduce side bar comments client, present, which counsel with his stopping whether the State is its case or throughout joint the entire trial. The starting its case. all know we are We court, however, having trial succumbed to trying through, way our and this feel prosecutor’s pre-trial motion that at the is getting dangerous into a area. joint trial there be a jury” should “Beam Counsel, “COURT: Comments of “Scroggin jury” did not allow what course, any at case time and should would without be the telling doubt most very carefully guarded be so there is no Only by cross-examination. such cross-ex- impropriety. Remember are officers by representing amination counsel the de- of the Court. State’s next witness? fendants who had most at stake could “the pursuit search or for truth be served.” Ray “MR. calls Beam JONES: The State Id. at 1626. S.Ct. at to the stand.
Had this crime been committed and the ensuing place prior Bruton, trial taken BEAM, ALBERT RAY co-defendants, Scrog- the two Beam and having duly regularly after first been gins, jointly charged, would have been testify, sworn on behalf of the testified here, they were been cross- State as follows: prosecutor, only examined not offering “COURT: Is the State obviously antagonistic counsel for the Jury A and Jury Beam as to both B? adversely-positioned co-defendant. It can- correct, Your not be “MR. That’s Hon- contended otherwise. JONES: or. point It is in closely order at this view regard proceedings trial joint Haynes utilizing juries
1. It was Mr. had moved into trial. who the Court two *10 walking “A first we just DIRECT EXAMINATION At went around. QUESTIONS BY MR. JONES: “Q Scroggins you Mr. then? Was name,
“Q you your please? Would state Yes, he “A was. Ray “A Albert Beam. “Q Scroggins know you Do if Mr. name, spell Mr. “Q your Please last right or left-handed? Beam. right-handed, “A I think he’s sir. “A B-e-a-m. “Q you Scroggins Where were and Mr. “Q you testifying Mr. here are midnight? about voluntarily today? Nampa Realty. “A Down “A Yes. what, any- tell if “Q you Could “Q agreements Have been . deals Realty? thing, Nampa occurred at the you by Prosecuting Attor- offered walking, “A We was we seen these ney’s Office? girls, And I two Mondi and Donnette. “A No. time, didn’t remember their names at that “Q you July did 1983? Where live on stopped by we to talk to them. Excuse me? “A “Q happened? Then what “Q you July did 1983? Where live on joking put He “A Shawn was around. Donnette, handcuffs on him and Ivy, Apartment “A 1023 South 36. knife. joking he was around with the then “Q you Who did live with? said, throat,’ ‘I’mgoing your he to slice And Sandy “A Wahlen. just joking around. “Q youDo date? recall that first “Q you had the when Who cuffs “A Yes. Nampa got Realty? recall, “Q day, approxi- Do on that “A I did. He me for them. asked have eaten mately what time for them? “Q When did he ask supper? got by “A Just before them. we “A Yes. “Q pair of handcuffs You have seen a “Q time that? What trial, during not? “A Between 7:30 and 8:00. “A I have. eating sup- “Q did after What do “Q these the handcuffs? Are same per? Yes. “A awhile; then “A Watched TV handcuffs taken “Q When were those and I left. Shawn off of Donnette? left. Are “Q You said Shawn and got to we “A two blocks before About seated to referring Shawn her house. myself next to Kenneth left of off? “Q they How were taken in a White blue suit? “A With the knife.
“A Yes. that? “Q Who did Honor, may the “MR. JONES: Your the Defend- reflect he has identified record I did. “A Scroggins? ant knife? have a “Q How did come to may so show. The record “COURT: Well, I the handcuffs handed Shawn "A BY MR. JONES: teasing with it out and was pulled he knife, goes, ‘Hang onto Scrog- “Q At the time left with it. these going to take to have you’re midnight, do? gins until ‘cause *11 get go, you Mandy and Lenten and Mr. off before we to her house.’ And I out where ‘Okay.’ put my pocket. Scroggins I it in stopped? So
“Q did occur? Where Yes, right underneath this “A here wal- nut tree. Nampa Realty. “A At “Q Is a lawn area?
“Q you go Nampa from Where Re- alty? Yes, “A is. it “A To her house. Beam, “Q you Mr. tell us what ‘her,’ “Q you say you When who are area next occurred in that lawn to that referring to? tree? walnut “A Mondi. Donnette and Well, sitting “A we was all three and “Q you you Do recall or not whether know, goes, talking, you he Shawn Mondi arrived at Lenten’s home? before, goes, ‘Do want—’ he her you asked know, get if she wanted to stoned and Yes, “A we did. ‘Beam, yes. goes, you got he she said So “Q please, jury, Would tell ‘No, man, go, already weed?’ And I I what occurred Mondi Lenten’s home? ‘No, man, goes, smoked it.’ And he Well, in, got “A aftеr we we sat down ‘No, don’t, Shawn, got go, I I it.’ And watching and was TV. And I think it was any.’ have it if there is Donnette that shut off the and her TV I I I “So looked wallet. knew Pacman, playing brother was and we all any, anyway. didn’t have but I looked And watching him play Pacman at that ‘No, go, got goes I I he don’t it.’ And time, 40 about to minutes. Then we ‘Well, I says, looks in his wallet and he left. got any goes, don’t either.’ Then he ‘Let “Q left, before who had Who— go, ‘Why?’ me see the handcuffs.’ And the handcuffs and had the knife? who goes, he let see the hand- ‘Just me “A I handcuffs and he had the cuffs.’ knife. After I took the handcuffs off of him, put I threw them to “So and he them them, give him the knife both on her at that time. give me the handcuffs. “Q her? How did he handcuff “Q Did leave Mondi Lenten’s house? “A In front.
“A Yes. “Q happened after that? What “Q you? Who left with pants, unzipped “A He unbuttoned her Mandy. “A started pulled them and them down and having sex with her. “Q Anybody else? “Q you actually see Mr.
“A Shawn and I. penis of Miss Lenten? put his inside “Q Do recall where the three Yes, I you went? “A did.
“A I do. “Q happened after that? What if Bailiff “MR. JONES: wonder finished, her “A he was he asked After enough put kind to would be out State’s give job, him and she said no. a blow 2, please. Exhibit No. don’t,’ ‘Well, goes, if And then he (Whereupon, produced the Bailiff State’s know, you.’ And at going to be bad on ‘it’s 2AB.)” Exhibit No. her put time he his knife to throat. goes, ‘Okay,’ and so she went And she BY MR. JONES: doing proceeded in that. ahead “Q to, Mr. if need there is a long job last? “Q did that blow pointer your How you point left there. Could sure, “Q probably “A I’m real 10 or Was she handcuffed at that time? minutes. “A she was. “Q Now, you say Scroggins put “Q happened What after that? Mandy
knife to Lenten’s throat? get up, put “A Shawn told her "A Yes. on, pants and she did. he un- back Then her,
“Q giving go told After that she handcuffed one hand and ‘Let’s consented Scroggins? job to Mr. down to the creek.’ blow *12 “Q knife time? “A Yes. Where was the at that “Q happened after “A In his hand. What that? Well, got off, if Mr. “Q you Scroggins
“A he I had sex Do recall said when did, I time? go, anything approximately her. And I ‘You else at before know, really I do this—’ don’t want go- goes, you “A Yeah. She ‘What are
“Q ing goes, going to getting a little ahead of me to do?’ And he ‘We’re You're Scroggins you.' now. finished with kill here Mr. you to as a job.
what referred blow “Q happened? And then what Oh, yes. “A ‘Shawn, I go, “A And what thе hell are “Q doing?’ again, Scroggins Mr. do at And he said it and What else did then ‘No, goes, please promise time? don’t. I I she don’t, me, Don’t anybody. won’t tell kill over, “A He her to turn that he told please.’ in her wanted do it butt. “Q happened? Then what “Q happened What then? top “A Went on down to the in, put she “A He it and started bank, right slipped there and and about she pulled on And he out. And
pooped him. it into the fell water. wiped her off it off he cut underwear and “Q happened him. after that? What ‘ “Q Mandy in, At Lenten would got got this time “A then in the Shawn I him, ‘Shawn, her stomach? been on And I don’t do water. told this,’ pushed and he her head under water (cid:127)“A Yes. held it and there. “Q panties Would describe how “Q happened us Would tell what Mandy cut Lenten? off point from that on? He “A With a knife the side. holding her “A He was head under ’em grabbed them and hold of sliced water, I didn’t and I was still stoned. off. going on. I scared. know what was Scroggins do- “Q Did observe Mr. pushed away grabbed And so I him and I Miss ing anything with Lenten’s breasts? giving compres- her started her and chest sucking “A he was on her. then me pushed on the chest. And he sions grabbed again and Now, And then he her “Q tell what back. would I don’t did, under water. And please? put her head long he held it under. recall how she got “A he finished and After up again I I her so could over, go, I “Then lift back back I had sex with her. turned I slipped I fell and again, and then and to do And she see really T don’t want this.’ go, right, my head. goes, T ‘It is all hit know.’ goes, it?’ ‘Yeah.’ So I had isn’t And she happened after that? “Q What sex with her. min- few of dazed for a “A I was sort “Q ejaculate inside of her? again start- grabbed her Then utes. CPR, when that’s giving “A I did. ed “Q happened Short’s? pulled What at Wes grabbed her head and it back her throat. sliced Short’s, got “A When we Wes we Beam, long say “Q Mr. how asleep, He was both knocked on the door. Mandy held Lenten that Shawn very and he out. We were both came time each he did that? under the water scared, goes, in. And he we went him wrong?’ ‘What’s And we told really of minutes. I’m couple “A A him, happened. And after we told Shawn too sure. goes, nothing, ‘I it was all didn’t do Beam, you recognize “Q Mr. do State’s nothing.’ done it. He tried didn’t do Exhibit No. 43? to blame it off on me. Yes, I do. “A ‘Well, goes, “And time Wes “Q is this the knife that town, advice to leave would be Mandy Scroggins slit the Shawn throat talking to me.’ Lenten with? “Q Did knife at you see the Wes Yes. “A *13 Short’s? “Q you happened us Would tell Yes, “A I did. Mandy Lenten’s throat slit? after was “Q you anything Did see done with the slit, “A After her throat was I couldn’t knife? passed I I almost out. So stand the blood. Yeah, it, playing “A with pushed her head under the water and held Shawn was waving it it there. back and forth. you you
“Q long do think held her How “Q anything Was else done with there under water? it? away I “A I’m not sure. looked Yeah, “A it at time. it washed her head down. held “Q you Do where he washed it? know “Q you quit hold it down until she “A In the kitchen.
wiggling? “Q you Do if there was remember only wiggled once. “A She Scroggins’s tennis discussion about Mr. “Q was done with the handcuffs? What Wesley shoes at Short's? They taken off handed “A was “A Yes. They me after we left there. back to “Q discussions? What were those by to me the Red Steer. handed back Wes, did I do “A He asked ‘What “Q took them off? Who goes, goes, my And Wes tennis shoes?’ “A Shawn. away them ‘Get rid of them. Throw “Q done with Miss Lenten's What was them.’ And did decide burn burn Shawn body? them. left there.
“A It was “Q Scroggins you anything tell Did Mr. being events of that silent about the about “Q you were wet time? Both of at that evening? “A we was. said, Yes. don’t tell no- “A He ‘You “Q type of Do remember what nobody.’ I body and won’t tell wearing eve- shoes Mr. “Q Mr. of these events oc- all ning? Idaho, County, Canyon Nampa, curred shoes. “A Tennis right? go having “Q did after ob- Where Yes. “A being removed? served the handcuffs night? spend the “Q did Where West, is Wes which “A To James Sandy’s. At “A Short’s. chest,
“Q get giving How did there? on her and I moved CPR back, push I my hand and went to the knife “A Wes took me. and it away, hit thumb. “Q go anywhere day? Did you the next “Q Ray, you were Neva- when down in did, “A I about noon. talking police da officers when “Q go? Where did them, did first talked to know that had committed Shawn devised To “A Caldwell. this crime? “Q Who took to Caldwell? No, I “A did not. “A Wes. you. “MR. Thank That’s all JONES: “Q, Anybody else? questions I have. “A and his mother. Shawn by “COURT: examination De- Cross “Q go did from there? Where Beam? fendant Well, me K they “A took over to Circle Honor, time “MR. Your at this BISHOP: Kimball, I Linda and went down to questions. anticipate no I would Page’s the exact house. can’t remember calling Mr. to the stand at a later Beam maybe blocks address. was about three It date. away. De- “COURT: examination Cross “Q you go from there? Where Scroggins? fendant go Marsing “A To Junction Honor, prior to “MR. BISHOP: Your Nevada. White, cross-examination *14 Jury that A removed. I feel this ask be “Q Nevada? you apprehended in Were light two-jury proper in of would be the “A I was. system.
“Q
Nevada?
you interviewed in
Were
May
approach
we
the
“MR. JONES:
“A Yes.
that,
on
Honor?
bench
Your
interviewed,
“Q
At
time
were
the
Approach the bench.
“COURT:
any idea at all that there had
did
(Whereupon,
dis-
an off-the-record bench
footprints
at the
shoe
found
been tennis
cussion
had between Court
was
Mandy
of
Lenten’s death?
scene
Counsel.)
No,
“A
I
not.
Panel
going
ask that
“COURT:
am
stepA
down.
officers
“Q
At
time did
tell the
that
wearing
Jury
shoes
A
(Whereupon,
was
tennis
Bailiff escorted
Shawn
night?
open
proceedings
and certain
that
out of
court
Jury
in
of
A. The
the absence
“A Yes.
1:30
taken from 11:45to
noon recess was
thumb
“Q
happen
your
anything
respec-
Counsel for
p.m. Reconvened.
being killed?
was
Mandy Lenten
while
together with the Defend-
parties,
tive
“A Yeah.
ants,
following proceed-
present. The
of both
in the absence
ings were had
“Q What was that?
B.)”
Jury
Jury
A and
got punctured.
“A It
added).
4,
(emphasis
Tr.,
pp. 838-62
Vol.
happen?
“Q How did that
unknown,
by
least
at
It will be forever
“A
knife.
With the
appeals,
on both
resort to
records
happened?
how
“Q
you tell us
Will
court and defense
agreed
by
was
hand?
your
was
Where were —where
All that
conference.
counsel
the bench
the record—is
the left
by Mandy on
we do know—from
standing
“A was
state,
presence
in
counsel for the
side,
side.
other
Shawn
“off-
obtained an
throat,
juries,
requested
both
to slice
when went
631
just prior to
tions of the United States and this
bench discussion
the-record”
White,
636,
of Beam Mr.
State.” 91 Idaho at
P.2d at
cross-examination
Scroggins.
for
And we do know
counsel
953.
the “off-the-record” discussion took
requirements are
Ebersole’s
clear—when
any cross-exami-
place, and there was not
proceedings
no record
certain
before
Scroggins.
nation of Beam counsel
available,
court is
but had a
the district
know what
said in that
We do not
might
available it
have sub-
record been
result of
important bench discussion—the
allegation
stantiated
defendant’s
no cross-examination.
which was
рrejudicial
pro-
there was
error in those
appellate
do know is that
What we also
based
ceedings,
judgment
conviction
incomplete
virtually
sustained;
review of an
record
upon proceedings cannot be
otherwise,
in
impossible. As Justice Bakes wrote
denied
the defendant has been
Wright,
v.
97 Idaho
When
Court
proceedings
of the lower court be-
in
In essence the rule of Ebersole is that
cause, in
of the statutes of this
violation
as if
this case we must reach our decision
state,
proceedings
the record of those
shows,
alleges
appellant
as the
the record
properly
preserved,
was not
taken and
brief,
prosecuting attorney
in his
that the
we
and due to the record’s deficiencies
closing argument
referred to the
his
to determine whether a de-
are unable
Amend-
appellant’s exercise of his Fifth
judgment
fendant’s
of conviction has
right
remain silent as evidence of
ment
proceeding
been
in a
tainted
obtained
guilt.
deny him
his
To do otherwise would
error,
must
with fundamental
then we
circumstance, I
process
due
of law. In this
State,
apply the rule of Ebersole v.
adopt
holding of the Tenth Cir-
(1967),
Idaho
“Appellant’s dilemma was not of his nection with this matter: making. statutory provisions The own principle in the “We see no difference requiring recording pro- *15 the of oral by the of his constitu- exercise defendant ceedings by reporter the court ... are right testify his tional not to consti- designed protect fairly ... to a defend- right to remain silent and refrain tutional very ant from the situation now before making inculpatory or from either an this Court. officers exculpatory statement to the custody for a federal
when taken into
case,
[by
the comment
is such
in the
offense. In either
“When there
a breakdown
defendant’s fail-
procedures,
prosecutor
as
that the
application of established
the
exculpatory
to
record,
make
statements
by this
which necessi-
ure to
is reflected
his
arresting
evidence of
parol evidence of
the
officer was
tated resort
privilege
greatly impair such
appellant
guilt]
him-
officials and of the
court
Appo-
place
penalize the exercise thereof.
took
in a
self to establish what
Supreme
record,
language of the
a lack of
site is the
court of
there is such
California,
v.
380 U.S.
from
fairness and deviation
Court
fundamental
Griffin
1229,
614,
page
609,
85 S.Ct.
at
page
to ne-
at
procedure
rules of
as
established
(1965)]:
a
16
‘It is
L.Ed.2d
appellant
that
1233
cessitate the conclusion
[14
* *
*
exercising a
for
imposed
protection
penalty
of
not
afforded the
has
been
privilege. It cuts down
process
due
clauses of the Constitu-
constitutional
the
showing
resulting prejudice." His
authoring
no
of
there is
Shepard, there
the Court’s
2. Justice
three,
validity
argued only
question
v.
majority
the
of State
opinion
opinion did not
the
of
630,
(1967).
alleged
Ebersole,
assuming
of
that the error
the
its assertion
sentence of
where a
death has been im
costly.’
Brown,
e.g.,
posed.
See
State v.
607
261,
(Utah 1980);
think
P.2d
265
“We
the error
Common
committed was so
McKenna,
plain, fundamental,
wealth v.
428,
476 Pa.
serious that
383
it,
174,
Ceja,
we should
(1978);
although
consider
State v.
A.2d
179-80
timely
413,
objection
was
1274,
not made
(1977);
115 Ariz.
565
thereto in the
P.2d
1276
”
cert.den.,
trial court.
(footnote
975,
533,
P.2d at 70 (emphasis
857,
previ
haveWe
(1941).
119
859
P.2d
Osborn,
405,
v.
State
102
Idaho
631 P.2d
ously recognized as much in this state
(1981)
187
was
first
to
case
reach this
error,
holding that fundamental
after the present
pen-
Court
death sentence
objection
even absent
trial will be
gone
alty law had
into effect. There Jus-
White,
appeal.
reviewed on
v.
State
97
tice McFadden wrote for the Court
708, 714,
1344,
551
Idaho
P.2d
1350
guide
has
which
continued to
the Court’s
(1976),
842,
cert. den.
429
97
U.S.
S.Ct.
record,
mandatory
of the
together
review
(1976);
Hag
State v.
attorney was not allowed to cross-examine against testified After Beam himself and becoming the trial was farcical. against prosecution Scroggins, called hybrid two-jury, joint system The was trial one and more then rested. Mr. witness placed Beam a second time supposedly being was for on the any used to circumvent case, stand, on own and his this time the prejudice by which would be occasioned Scroggins jury was excused. only The ma- any by introduction of made confessions given by testimony terial him re- was to of the either defendants where the defend- “No, not,” spond: I did when asked “Did not ant did take the stand. rule of and The any at intend to Mandy time kill Lent- for Bruton is that cannot cross-exam- en?” jury With the out of the confession, right ine a hence the room, court Beam’s additional case was is confrontation defeated. witnesses, only three character one Here, however, Beam And he testified. by questioned prosecution. whom was accordingly subject to cross-examina- end of the proceedings Such was the before tion his In co-defendant’s counsel. that jury, other Beam than a state’s wit- only way, way, in that search for “the ness, available, previously not testified and promoted. truth” have been The Thereupon was cross-examined. the fol- court, apparently seeing lowing trial difference place: no took Beam’s testimony between live and the concluded, MR. I have BISHOP: hearsay use of his oral confession to the we rest this time.
present coming guess question when certain evidence is in. I it is a COURT: of seman- Court, your presentation You make tics. It’s severed issues not relevant one to hopefully fairly I will consider them. But being jointly It is Defendant. tried as all to comes, when decision time I make the will other mаtters. decision. severed, So the MR. BISHOP: cases are Tr., added). pp. (emphasis Vol. 12-13 juries. two we will have my understanding, just It [MR. BISHOP:] is absolutely want to be COURT: I certain that record, are, for clarification of the the Court Counsel and understand each other then, ordering granting the—or the State’s agreed. upon By way you we have trials, joint motion for severance and the two- severance, talking going are about to I am not jury system? trial is in don't believe that argument any anybody entertain but that record, other than letter of indication. controlling going the Court is what evidence is COURT: There does some need to be clarifi- present. both do forward Defendants going cation. It is forward downstairs with argument not want an the Court has motion, juries. two The Defendant’s if there so we ordered severance have an automatic sever, a motion to is denied. We are right only by certain evidence heard have going juries. forward with two jury. one The Court will control that. Honor, BISHOP: MR. Your not filed trying What I am to tell Counsel is that this motion for severance. The filed a State really type hybrid, of a is and we are severance, juries. try motion two it as any arguing semantics. over But to avoid COURT: I stand It was the corrected. Defendant, prejudice either in the interest State’s motion to sever. is de- That motion judicial economy, and to avoid Bruton nied. problems, juries Court has ordered two trial, joint MR. jury. BISHOP: As a one simultaneously. going We are sit forward No, COURT: under— And there evi- with the evidence. when Well, Honor, MR. BISHOP: Your under introduced that is admissible dence to be joint Section 19-2106 we have a trial with one Defendant, re- will be to one whereby jury or we have severed trials each moved. jury. under has a Defendants Honor, maybe Your are MR. BISHOP: we *17 motion, Haynes’s they Court he stated to the semantics, talking try but I have to a case. asking proceed for severance but to with authority juries, a for two it is And all of the juries. proceedings And if are with two we hybrid. I You used the word severed trial. juries, understanding my it would be that two any authority hybrid don’t for a trial. of severed; separate cases are we have trials any authority to have seen COURT: I not Defendant, to each Defendant as eaсh contrary. having jury, joint their own or a trial we have added). Tr., pp. (emphasis 29-32 Vol. jury. one with Bishop, you’re going lay
COURT: Mr. not each people situation are involved in jury present during want your to Mr. going this and are possibly situation to presentation? White’s draw certain conclusions from the ab- correct, MR. That Defendants, BISHOP: is Your or presence sence of I think Honor. it would more everyone be beneficial to if convenience, stay. Mr. I
COURT: For their own Beam would see how don’t it subject Court, going to prejudices any call of the I am to way. him in go allow them to back to the motel. - point And I any specific preju- can’t to definitely case, MR. I concur with BISHOP: dice in the State’s but it seems that that, Your Honor. situation, unique lay in this with member sitting very in going process, COURT: The Court is to a new excuse on law that motel, Jury A we will call improper back to the an conclusion could be drawn Jury in B. from the of absence Mr. Beam at this point.
critical Honor, right MR. I MR. Your Mr. Beam BISHOP: think he has the BISHOP: inquired appearance proceed- during has if he has to here to waive his in the be segment. I see no for him purpose ings being fully this themselves. After ad- being during segment. vised, this having here and the State not shown prejudice, asked, bias or and he has ap- I he his
COURT: think can waive concur, Scrog- I there is to no value his pearance as far Defendant being present. question I gins’s is concerned. And the value case present segment. being during this Honor, Your he MR. BISHOP: has why I see not But no reason he could be me he waive indicated to that would his during episode allowed to leave. right to or be here of Mr. presentation reflection, Defense COURT: I think on further Jury B. I believe that the Court is inclined to correct, I agree Is that Mr. Beam? with the State. think Mr. Beam COURT: position in really is not to waive his sir, BEAM: Your Honor. MR. presence there could lie here inasmuch as prefer You outside of COURT: to be presen- up matters could come in the that during presentation the courtroom Scroggins’s tation of Mr. case could Scroggins’s testimony? Mr. i case. bear his own why I MR. BEAM: I don’t see should relayed And if information is here. be otherwise, unless it him or Counsel means not That would COURT: it given specific form in whiсh was it, position not in a hear so be may be in presented, may he not way or the your advise counsel one rebut it. And I don’t want position to other. up at a later something like that come right. That’s MR. BEAM: time. does feel How the State COURT: Honor, Your MR. BISHOP: about that? sev- proceeding under analysis, we are Honor, I realize MR. Your HAYNES: present, not be juries. He would ered may right to not Mr. Beam have a separate trials if had two necessarily, we presentation during the of Mr. present be only think that going on. case, but Defendants Scroggins’s both that is from can be taken resolution that evi- all the been seated there with may be an that the State there illusion how it could coming in. don’t see dence is not here. if he prejudiced pre- during the his case prejudicial to be Honor, may if I Your evidence. WHITE: Scroggins's Mr. MR. sentation of or does stays if inject. don’t care Defendants as all Inasmuch me that the stay, appears to it each day and present each have been their rested Beam have State and session, jurors inasmuch as the *18 said, case. What ‘Well, said, reason would there need be I don’t have it.’ And he in beyond ‘Well, rebuttal his case is me. said, The go ahead and check.’ And I record reflects that both Mr. Beam and ‘No, going I’m go ’cause I check the State have rested in that case. through my day.’ wallet three times a any COURT: I don’t think there is “Q happened by way, Then what the— prejudice, hope and I any there is not Shawn, was it dark? prejudice, situation, since unique this is a Yes, “A it was. n but there certainly anything cannot be “Q very Was it dark? wrong with him being here in case there something anticipa- that we have not dark, “A Pretty yes. going request ted. am Mr. Beam “Q And what then? occurred present. remain Bring Jury in B. Well, there, “A we were sittin' and he (Whereupon, Jury B was escorted into pocket in pulled reached his coat out court.) open the handcuffs and reached over there and Jury COURT: A is excused to the mo- stuck ’em on her. tel morning, January until tomorrow “Q 20th, On the front or back? at 9:00 a.m. (Whereupon, Jury A was excused to “A The front. And I him asked a.., January 20, the motel until 9:00 he was doin’. And he didn’t answer me. 1984,and proceedings certain were had “Q Then what did he do? Thеreafter, in Jury the absence of A. ‘ placed top “A He her hands of her a.m., the Court recessed until 9:00 Jan- her, (indicating). head in front of like this 20, 1984.) uary Tr., “Q pp. ground Was she seated on the Yol. 978-83. laying ground? on the In order to happened ascertain what there- (which in joint longer after trial was no Laying. “A joint), it necessary go becomes outside of “Q put up And he her hands her over appeal, the record before us in the Beam head? pursue Scroggins the record in the “A sir. ruled, appeal. jury, The Beam as the court “Q was not instructed and sent out to Then what did he do? deliber- ate, put on hold at local motel—while pants. “A proceeds He to take off her attorney through Beam and his sat “Q What did do? joint of the remainder trial. got up “A I and started walkin’ off. Somewhere in one of the two records “Q going may there Did know what he was be a notation that the state against do? rested its case at the against
same time that it rested the case No, “A sir. rate, escapes but it me. At “Q going think he was to have court, kept Scrog- after Mr. Beam was girl? intercourse with the sexual in, gins’ jury brought attorney and his Well, yes. way, “A it was lookin’ that opening made an The first wit- statement. Scroggins. ness called to the stand was “Q you walked What did he do before age, He testified to his which was 18 way? away that made it look that years years younger than Beam— —three Well, pullin’ pants “A he was off and, introductory ques- after some other pullin’ down his. July tioning, got down to the events of away. “Q you turned and walked So night Mandy Lenten was killed: “A sir.
“Q occurred, What Shawn? “Q you walk to? Where did “A he asked me if I could search So here, (indicating). through my here wallet and see if I had it. And “A Over *19 here,’ Shawn, then, you’re “Q “Q saying When ‘over What occurred when got doing it you down and started to her? you’re to— pointing you did What do? here. “A Around tree face, she “A I looked on her had a “Q By creek bank? face, her, and I puzzled look her asked Yes, “A sir. you you want to this? Are willin’?’ ‘Do do said, got up, ‘I I And she don’t know.’ So that, “Q away how far About on, pants lifted her pulled my up and back Shawn? I pants And was fixin’ pulled her back on. Ten to fifteen feet.' “A knife to Ray ask Beam for the unhand- “Q your approximation? Was that cuff her. Yes, “Q Whаt did he do? “A sir. “A he over there and Then came every- “Q any watch time Did at knife, opened her and grabbed took out the
thing that Mr. Beam did? blade, thought going and I he was No, sir, I “A didn’t. go. he unhandcuff her and let her girl “Q Did the ever scream? her back. And I placed her hands behind said, said, And he ‘What are doin'?’ No, didn’t. “A she ‘Well, on her tellin’ I can’t take a chance oh part long or “Q How watch —did me.’ him, what did try to look back his “Q Did he knife in hand? have the do? “A He sure did. there. didn’t “A I was standin’ “Q it? Where did he have to look. even want do mean that? “A What “Q participating he was Because “Q' pointed girl? he at the Did have it act? sexual Well, I I don’t know for “A think so. “A sir. to look. sure. didn’t even want “Q long did this continue? How “Q between Was conversation about a half an hour. “A For you and Mr. Beam? hour, During an “Q all of this half Yes, sir, doing him not to be “A told girl didn’t scream? that, he right, it and that would that wasn’t said T And he No, sir, get in trouble it. she “A didn’t. tell on me.’ take a chance she’ll can’t go point back “Q at some did Then else to him— “Q you say anything Did they were at? over where occur, Shawn? way, where did this by the sir, I did. “A He right unhand- “A We was there. you ar- when “Q And what do her hands be- her and handcuffed cuffed they at? where rived back right and started walk- there hind her back gonna do the got down and was “A I (indicating), up way ing thing he was doin’— same he have her in? “Q hand did Which pants down? “Q your take Did right His hand. “A little, yes. A“A a knife? “Q have your knees? “Q below Down Yes, he sure did. “A No, above them. “A in? was that “Q Which hand there, over you walked back left. “Q When In the “A panties on? did she stop try to you yell at him or “Q Did No, sir, him? she did not. “A “Q any particular
“A I told him not to do it. Was there location ran to that remember? *20 “Q you say? What did Yes, “A the Red Steer. said, ‘Ray, you please stop. “A I will says, “Q long Don’t do that.’ And he ‘I can’t take a you Ray How ever see —did tell me I did.’ evening? chance. She’ll on again Beam “Q girl say anything? Did the “A Yes. say anything.
“A She said she wouldn’t “Q you did When next see him? “Q To him? Well, stop “A I had to my and catch breath, down, and as was sittin’ Yes, “A sir. up again, get fixin’ to and take off and I time, “Q particular At this which di- right happened to turn around and he was girl? rection was he headed with the there. Up way (indicating). “A there “Q Was he barefooted? “Q northerly In a direction? Yes, “A he was. “A Yes. “Q happened? What “Q top diagram, To the of that which is said, ‘Why yоu “A He did run? Are State’s Exhibit 2AB? you going to tell on me?’ Yes, “A sir. “Q say How did he that? “Q that, you’re pointing top So to the mean, “A you What do how he said it? you are not? “Q Was he excited? Yes, “A I am. “A He looked like he was —had done “Q you What did you do? Did hear wrong. somethin’ He was wet and all of anything anything? or see that. Well, “A I seen him take her to this “Q anything Was else said there? here, point top of the ditch bank said, ‘Well, you’re gonna go “A He tell there. And I went down to where the me, on you?’ ain’t And said no. And he pipe. water come out of the And I was ‘Well, me, standing no, says, you go if say you’ll there. And I heard her tell then splashin’. you go a whole bunch of water down with me. And when down me, you’ll get thing.’ the same
“Q What did do? “Q happened? Then what “A I freaked out and turned around and ran. “A So we was walkin’ back to Wes’s house.
“Q Which direction did run? “Q up Is that 12th Avenue? (indi- “A alley way Back down the cating). Yes, sir, “A between Red Steer hospital. gave That’s when he me “Q go through Did back the same knife back. way you came? “Q your knife? What condition was “A Yes. wet, muddy, “A It was and it had sand “Q path Was there a dirt there? all in it. “A What do mean? “Q you go to Wes house? Did Short’s “Q path said there was a When sir, Yes, “A we did.
there, you go did path? back out the same Yes, “Q When arrived at Wes Short’s “A I did. house, you knock on the door? time, “Q Shawn, At that how far did “A we did. run? four, “Q occurred? “A About four and What a half blocks. door, said, opened
“A He and he “A He went in the bathroom and asked, ‘What do want?’ And I changed. ‘Could said, ‘Okay, we come in?’ And he come on “Q put anywhere? Did he them in, in.’ And Ray we went Beam asked “A top He stuck them on of mine. if he telephone. could use the And Wes “Q In the washroom? straight said sure. So he went to the tele- phone. “A sir.
“Q What did do? “Q Ray Beam have “A I got went in the bathroom and un- conversation about the events of *21 put dressed pair and on of shorts night? got ready Wes’s and for bed. Yes, “A sir% “Q you your What did do pants? with “Q At Wes Short’s? “A Stuffed them in there in the wash- Yes, “A sir. room. “Q you say What did say to him or he “Q you laying any Did have them in you? particular place? “A He told me that —I don’t know how dryer. “A On the off, it started but told I he me that had “Q you your What did do with shoes? as much to do with it as he And did. I there, said, “A I had them too. I took them jumped up and 'That’s a damn lie. off. good You know and well I wasn’t down anything.’ thеre and I didn’t do Now,
“Q you put pair on a of shorts? “Q say? What did he Yes, “A I did. me, kept “A He accusing like I had “Q Was there any conversation at Wes it, done like I had done it.
Short’s house about what occurred that night? “Q you? Did he threaten
“A Yes. thing “A Yes. He said I the same Steer, was sittin’ at the Red that if I said “Q you Between and Mr. Beam? anything, go along that I would down with “A Yes. get thing him and the same she that “Q Where did this occur? got. living “A In the room. conversation, “Q During that did he dis- “Q you your What did do with knife? girl? close to what he had done to that “A What did I do with it? I still had it “A He he her and cut said that drowned my pocket in in the washroom. her.
“Q go get Did ever it out? “Q say did he where he had cut And her? Yes, “A I did. No, sir, “A he sure didn’t.
“Q What did do it? Now, “Q you made I believe a state- “A I took it in the kitchen and washed ment that told Wes Short the whole it off. story night. “Q Did notice blood on it? discussion, Well, “A in Wes was No, sir, “A I I lookin’ didn’t. wasn’t room we was sittin’ in the livin’ where
for it. if really And I can’t recall talkin’ about it. “Q Ray Did Beam remove his clothes listenin’, in really actually he was while at Wes Short’s? mind, I, my in mind I wanted him to listen. did., “A he overhearing our conversa- thought he was “Q did he do tion that we was havin’. What with his clothes? “Q sleep morning,
“Q purpose early was the of Mr. Beam Did What making telephone call? morning? girlfriend his “A To call that lived “A Excuse me? pick up so she could come him Caldwell “Q sleep morning? early Did
. take him across the state line. sleep? “A IDid “Q Is that what he said? “Q house. At Wes Short’s “A Yes. Well, asleep, yes, “A I fell and all “Q girl talk to this the tele- through night kept up. wakin’ phone? “Q What occurred next? “A I did. “A All I can remember is Wes Short
“Q you Do know who she is? up, came the room and was wakin’ me No, “A I sure don’t. said, up and woke ‘What?’ And “Q Do know what name is? said, ‘Ray you.’ to see Beam here No, “A sir. said, ‘What in the hell is he doin’ here?’ leave, please And I asked him to make him “Q Did he mention a name to *22 evening, that I don’t want to see him. And he Shawn? in, said, opened walked door and ‘Come Yes, sir, “A he did. in.’ “Q What then occurred? “Q you purpose did—do know the What Well, “A having argument, we were why Ray Beam was there? my hoping and in mind I was Wes was Yes, “A overhearing thought sir. it. At that time I was. “Q What was that? “Q Ray Did Beam Wes Short’s leave “A To ask Wes Short if he could drive evening? him to Caldwell. Yes, sir, “A he sure did. “Q you Wesley if Do know Short did “Q that, Approximately what time was drive him tо Caldwell? you if midnight? know? Was it after “A Yes. “A After around 2:00 to 3:00. “Q you How do know that? “Q And did he take his clothes with him Ray “A Because me and Beam Wes when he left? up got pick truck and went over to “A got Yes. He went in there and get. his stuff that he wanted to dryer them off the washer and and fold- “Q Where was that? up. ed ’em Sandy “A At Wahlen’s. home,
“Q Then who took him or did anyone him that, take home? “Q again? Where was Yes,
“A Short Wes did. Ivy. “A 1023 South “Q long gone? And how was Mr. Short “Q apartment building where The same you lived? twenty “A Fifteen to minutes. “A Yes.
“Q happened What next that know of? “Q get? did he What all Well, bed, “A I was in there on the know, “A I I don’t recall. don’t getting ready go sleep, and all I could “Q pick up personal some Did he having think about was seen and what hav- things? ing happened accusing me and and he was stuff, things like “A threatening telling clothes and gonna me and me I was thing get anything. the same if I that. said
“Q happened? Then what “Q attempt Did more or less to tell them what had been involved with and said, “A Wes Short you ready?’ ‘Are seen and heard? me, yeah. And we said So mother and Ray got Wes and Beam in the truck and “A sir.” took him to Caldwell. Tr., pp. Vol. 1050-67. “Q Do know where took him? Shawn, “Q Ray did see Beam actu- “A Circle K. ally girl? drown the “Q happened And what at the Circle K? No, “A I didn’t. pulled up “A We there. He was in the “Q holding see him her head out, pickup. jumped got back of the He his under water? up K clothes and walked to Circle No, “A I didn’t. telephone booth. “Q your What did mother and do?
Mr. Short out, Shawn, “Q When did find Well, girl’s pullin’ up “A throat been cut? as we were driveway, happened to look back to make Monday, they “A after arrested me. gone. sure he was And when I made “Q How find that out? gone, sure he was I broke down and told Gary “A Twedt told me.” happened. my mom what had “Q Tr., 5, pp. What did she do? Vol. 1076-77. prosecutor Cross-examination
“A didn’t believe me at first. She discrepancies Scrog- brought out some “Q What did Wes do? gins’ testimony compared trial to his *23 “A He didn’t believe me at first. signifi- given police. statements to the Of “Q you go? did Where cance, however, Scroggins, ready an- had a at him heading Nampa. every to swer for thrust made “A Wes was back prosecutor. prosecutor did make some The “Q there conversation about Was respect Scrоggins’ with direct inroad to you go? where wanted girl testimony that the had been killed Yes, “A there was. drowning: your “Q you say mother What sure, “Q Now, just you to be told the and Wes? jury today Wesley Short’s house mention, Well, my happened “A mom girl. you that he cut the Mr. Beam told go hospital?’ to the And you ‘Do want to “A Yes. go see the me if I wanted to Wes asked said, ‘No, “Q sure of that. go see You’re priest. And I I want to police.’ ‘‘A Yes. “Q you? Did me, with “Q ahead and read Go Yes, I them take me “A I did. made reading any- if I help am your counsel will there. said, ‘Did he tell thing wrong, Mr. Twedt girl?’ Your an- raped he’d Wes that police “Q you arrived at the And when was, ‘Yes, me and Wes and he told swer station, talk to? you who did says, ‘Uh- he killed her.’ Twedt Randy “A Twedt. huh.’ Gary “Q that be Twedt? Would when, said, ‘And then you “Then that’s “A Yes. knife, know, used that he used —he you “Q or Ran- you Did talk with a Randall pissed jumped on got I and that’s when dy Newton? said, you ‘He told And Mr. Twedt him.’ an- girl?’ Your he cut the and Wes that “A sir. “Q police tell You did was, ‘No, Mr. Twedt not cut it.’ And swer her, you? put it into didn’t said, started to ‘He —I didn’t said, And ‘What?’ just until nothin’ about cuttin’ even know saying that. I could “A I don’t recall now.’ have. July I this interview was “And believe like to see where “Q Would said, know T didn’t even 11th. And did? just And cuttin’ until now.’ nothin’ about Yes, I would. “A say, ‘He said that went on to Mr. Twedt “Q and look at what has been Go ahead knife, though?’ And your he’d used 15, Scroggins Tape marked as Exhibit said, said, ‘Okay. ‘Yeah.’ Mr. Twedt Counsel, For the benefit of we Exhibit 15. And he how he killed her?’ tell looking again second are at the said, ‘Huh-uh, he said that drowned remem- saying line. You’re here don’t her.’ telling police, T didn’t stick it into ber you say, says, ‘Okay.’ And “Mr. Twedt her, I to.’ started anything her or say ‘He about cuttin’ didn’t My “A second name down? along me anything.’ you reading Are with “Q already talked about think we’ve there? one, to be sure that it but wanted Well, says there. “A see what it was there. “Q July 11th that told the This was “A I see that. cut- police you didn’t know ‘nothin’ about please? page, Which “MR. WHITE: just now? tin’ until Page 9.” “MR. HAYNES: “A Yes. BY MR. HAYNES: “Q your You said he used knife? anything “Q her or T didn’t stick it into “A Yes.” that, like but I started to.’ Tr., pp. 1099-1100. Yeah, right. “A that’s again prosecutor
And had success “Q have sexual rela- you did start to So Scrog- questioning this line relative tions with her. gins’ police: statements “A Yes. they “Q yet over and over when *24 had denied it “Q you That after was her, you you any if contact with asked finally you Then over and over and over. her, near her?’ you you go ‘Did touch did did, actually is that police you what told the ‘No,’ over, you say is that would over and correct? right? “A correct. That’s right. “A That’s you had “Q police what You told the counted, “Q I stand I think I and will they only Mandy after sexually with done wrong, if different corrected this is seven correct? you, is that had arrested you ‘Did they you, asked occasions when “A That’s correct. you go near her? Did Mandy? touch And her?’ you have sexual relations with they had arrested “Q Only after your answer be? what would for under arrest you you were and told Rape, then Degree Murder and First say “A I would no. morn- to the Detectives wanted to talk did, you? “Q reality you didn’t But Nampa Police Station. ing over at her, no, and I didn’t “A I didn’t touch Yes, right. “A that’s her, no. have sex with began to tell “Q when And that’s her. “Q get top of you did on But with relations your sexual the truth about Mandy. “A I to. started Yes, “A
“A Yes.” he was. Tr., pp. 1111-13. “Q Vol. help to run You were too afraid for go too afraid to and take down again: And pants your begin get Mandy, to or on Now, “Q going I’m to talk about depending story talking we’re on which rape going just scene. I’m to talk about about. right happening what here. You said was Well, “A going I know if he away to this didn’t walked tree. turn go on me or not if I started to for “A sir. help. “Q According your testimony, you “Q Well, Scroggins, if you’re Mr. what an must stood there about a half telling place, ground he’s on the us took hour. pants Mandy, with he has his him- down right. “A That’s self, standing by you’re the tree. hour, “Q you’re saying In that half an you go There’s can do if for not much he friend, your your acquaintance Mr. help, is there? Beam, girl had this handcuffed and had a there, Well, “A you wasn’t and I don’t throat, right? is that knife to her got up if know he could have tried Well, guess “A I when takin’ he was chase me or not. her down the— “Q enough you trusted him to take But Now, taking “Q talking I’m not about get your either her pants own down and on talking anywhere, her I’m about when she or start her. get ground raped say was on the it, Well, figured go “A if I for I hour. for a half an know, anything. do that he wouldn’t “A Yes. “Q figured along if went You “Q you telling Are you. Mr. then he wouldn’t hurt go stood at that tree and didn’t for “A that’s correct.” help? Tr., 5, pp. Vol. 1115-17. No, that, saying “A I’m not no. again:
“Q What? “Q Now, Page Scrog- on that Well, saying I’m stood the tree. “A gins, right top, the first line that at the go help. I wanted to says Shawn, say, ‘Yeah.’ don't konw didn't, “Q you? did But question Then Newton: was. No, anything, too scared to do “A What he do saying anything? ‘Was she did and I still am. You got when he her down to the water?’ water,’ anything, answer, scared to “Q You were too do her underneath ‘Stuck frightened enough you except you weren't is that correct? your turn with Man- go and take back *25 Yes, “A correct. that’s dy- your in “Q or saw it mind’s Not heard it No, not take a turn. “A I did the eye, underneath water.' ‘Stuck her “Q to. Started particular ques- you Then asks a Newton tion, her head or—’ and just ‘All her or of “A to. Started right? in, her.’ Is that you break ‘All of not too afraid to do that. “Q You were says, yeah. “A it That’s what Well, if I afraid I would have “A wasn’t you question, a “Q asks Then Twedt
kept doin’ it. on your you And what was ‘Did see that?' you “Q Beam was there when Mr. answer? started, Mandy to do it you say, with as ‘Yeah, “A I did.’ Lenten. Now, concern, “Q telling to you jury today I share that same but am able are the you case, see that? prejudice that not Mr. see the state’s and to all, as After Beam’s case well. so the “A not seein’ it seein’ it. That’s wonder, attorney and Mr. Beam his my I was in what seein’ mind. court, why in are still but doesn’t Beam’s “Q Is has proved, that because it been Scroggins, attorney the wit- cross-examine Scroggins, it you Mr. that could not see for placed ness who has all the blame there? from killing on Beam? the actual Well, “A no. prosecutor respectable did a That the “Q you is that Or it because could accu- ex- cross-examination of is no rately happened describe what there and might having cuse for not have been yet saying you were weren’t there? penetrating an even more cross-examina- Well, there, yes. him “A I was I seen by Bishop, Mr. counsel Beam. tion edge as take her far as the there. bank larger problem But the is the trial court’s “Q Isn’t it more a matter that of administering rule, of the Bruton it was as accurately described what down in the here for the first in Ida- administered time really until realized water that ho, jointly-charged, jointly-tried, capital in a have from said couldn’t seen where by juries case with two —COMPOUNDED standing? were that of the the fact both co-defendants Well, referring seeing him “A and very testified the reason for the Bru- walking edge her to the bank there. rule was non-existent. ton her,’ “Q police Yet told the ‘all of To which hasten to add another reason just her not said. not why another an aberration should such says. “A it that’s what place even again take is to not —which proposition the that bother with worrisome “Q only way could that, juries sequestered two until Scroggins, seen is if were also, day, Monday, right? down in that the end of the first trial water they prior selected after been right. “A That’s For Friday, and that other reason is this. “Q fact, you police In told case, capital man- appellate review in a as grassy left never area. statute, by record is mess. It dated “A didn’t.” three only if there had been could be worse Tr., 5, pp. perusal Vol. 1122-24. My of or more defendants. record, and of both in this case in that redirect, recross, There was and further any Scroggins, not a labor love But, this, in redirect recross. all of means, judicial has me that convinced no testimony with the there was economy the trial level—which served at still- cross-examination counsel for the time actual trial much to be doubted where How present-in-court co-defendant Beam. maybe days, than five was less four this situation the concerns appropriate to by lack Scroggins’ jury up eaten been attorney: prosecuting of the —has It was a judicial economy at this level. jurors in situa- inasmuch as the each experiment, nobly it failed. has noble lay people are situa- tion involved regard In statement I hasten which possibly going to draw tion are tried, if had to be experiment add conclusions the absence certain from his gave it particular judge trial who presence Defendants, it ... opinion uniquely endeavors was best situation, unique seems that in this *26 however, Better, that preside. to suited very lay sitting with members on a in prose- the judge had not succumbed to the process, con- improper new law that an game motion; that the cutor’s better the ab- clusion could be drawn from played have well-estab- point. should been sence Mr. Beam at this critical 644 existing right
lished was I jointly, oppose rules. It not the utilized would not the experiment. case for the noble procedure proposed by the Prosecution. severance, If partial it’s a I must then What also comes to me from across read oppose motion totally. the defendants, ing the testimony of both and Mr. White? COURT: examining given their statements to the detectives, police is that Beam is as much Yes, I entirely MR. WHITE: concur mentally person the as Bain slow was Bishop with the Mr. on matter. It seems bridge compared as I to Sivak.4 would trying gain is to me like the State to challenge anyone testimony to read the and best and of two worlds be tied to neither argue contrary. statements idea, one of them. I like the and I con- Yet, Bainbridge given not the death Bishop. going cur Mr. If this is to with sentence, was, but and Beam and Sivak severance, be a it has to be a total sever- Scroggins both were. ance, operate to I have with the because law rules of in a sever- and the evidence My purpose say not to the trial is I maybe differently ance a little than do sentencing erred court in both to death. reason, in a if joint. And because of that hearing suggest jury, But do that one going juries, to two one for there are be testify each and then on on direct two Scroggins, for Mr. Beam and one cross-examinations, might have decid- well then a total it should be severance. differently juries. issue ed the than two Long before the trial both defense counsel Tr., 1, pp. 8-10. Vol. thoughts: advised the court of their appeals, appeal, This these involve more That is concern. [MR. BISHOP:] sys- judicial than defendants. The the two rights they’re if We have certain tried tem on trial was not itself went when there together, certain and the Prosecutor has But, too, there a total severance. then problems. They prob- certain alleviate any unless should not have been severance severed, lems if the case is and we have in no uncertain the trial court was informed rights are certain if the cases severed. take terms that neither defendant would see, do not I have not researched the rely the stand and that the state would cases, specific I do not see where it is but hearsay orаl only upon out-of-court that there is such indicated in there police statements made to detectives thing partial You're either as severance. the two co-defendants. severing severing not it. you’re or it Moreover, pen- capital in cases where the juries have going And if we to two are in probable, jury system alty of death is severed, obey we must all of the then a ma- denigrated by Idaho to be continues trial. rules of severed yet adequately jority who have of three Now, I contact other made have fact documented answer the established in a attorneys who have been defense adoption of the Idaho Constitu- that at the up has come but situation where jury which was the deter- tion it was the situation, in that have never tried it obligation defendant's miner of a convicted way the basically is Court imprisonment. live out life right to die looked at it. The those circumstances severed, oth- having answered totally profess and the rule was I do
case To appeal. then conve- important er issues raised for severance. nience, presented more consid- encompass witnesses even a those do so would joint in a of time. Suffice expenditure trial. erable utilized hold, procedure do, way And if at it we look re- erroneous, in violation of proceed as totally case is severed and process. due totally quirements ex- constitutional though the case was severed appeal, should defendant, This on this which can be cept for those witnesses 273, 887, Bainbridge, Idaho Sivak, 108 v. P.2d 396 v. Idaho 674 L.Ed.2d State 4. State — U.S.-, (1985). (1983) 104 S.Ct. P.2d 335 cert. den. *27 had not oc- reproduced It from such error as here are a second trial free infra. occurred, integrity that, following so vote. The of me the off-the- curred to judicial system is too to be conference; valuable pro- the “certain record bench cost of a sacrificed order to avoid the ceedings” had the absence of which were second trial. jury of Beam A was cross-examination In Scroggins' that I do not by counsel. ADDENDUM be overly am to faulted. No believe foregoing days after the wаs writ- Two why itself those “certain reason manifests ten, clearing my from desk elev- and after not stated to be what proceedings" were Scroggins ap- of in the en volumes record now I had conclud- they in fact were. Until peal six volumes of record in the Beam guid- special B jury ed that needed some process putting appeal, in the while regard to their ance or instruction file, me away prompted Beam kismet arrangements perhaps room board and —or again through Beam’s briefs to to read jurors suffering one of an ailment. anything possibly if critical was ascertain rate, by At alerted the Beam brief’s passage my dismay To therein missed. Beam, of cross-examination of on mention pro- of the overlooked. “Because been appeal again Scroggins resort court, by the cedure established trial record, was in- it is discovered that there deprived reading on this record of Court is only Not deed such cross-examination. antagonism which occurred on obvious that, with “his” Scroggins’ by Beam cross-examination of present, gave and rele- additional material Brief, At Appellant's p. 5. counsel.” testimony vant redirect redirect—which only effort record time of initial prosecuting attorney, conducted was on which I reviewed and considered having Beam been called as a state’s wit- appeal, 15453 in this Beam’s No. Court. Page transcript ness. 862 of the Beam page only record On I saw pages corresponds with 910-11 of the by pho- the reader hereof sees—that which transcript, readily as is seen For tocopy process is included herein. ease continuity, top page placed two are side side: page 862 and the when the *28 Scroggins exami prosecutor’s redirect transcript heard the page From of Beam. nation of defendant Beam the cross-examination testified, Then, it was attorney continued on for 20 when by Scroggins’ reversed its trial court because the only turned pages until the witness was then attorney his ruling Beam and redir prosecutor further back room, ante, 544, p. in the court even the Beam this, But, through all of ect.5 abso- рreviously declared court’s under room, of the court al jury kept was out ante, p. proceedings, over lute control attorney present while though his Beam’s like dummies with sat there Accordingly, al Beam was so examined. cross-ex- opportunity to having no attorney Scrog- together with though jury, Beam’s reading the collo- Obviously, from amine. first the state’s gins’ jury, saw and heard ante, conclud- trial court p. quy, Scrog- only direct examination affair, of this ed, in the orchestration seeing the benefit of gins’ jury received over, Beam and that trial” “Beam’s of Beam hearing part in the play cross-examination no attorney should his remain visi- should White, Scroggins’ “Scroggins saw trial” —but only appendix. excerpts as an are attached hereto Pertinent 5. Brief, Appellant’s pp. 22-23. because, Haynes prosecutor worded
ble it, lay people involved jurors “the ... are authority supporting the contention that As possibly going to and are this situation require complete antagonistic defenses conclusions the ab- certain draw *29 severance, placed American from reliance was present Defendants____” the or sence Relating Bar Standards to Join of Association Severance, 2 and 3 der and Standards clear, I earlier tried to make even to As cases, (1968), two fairly and also on recent referring Shepard’s extent of to Justice the Thibodeaux, (La. v. 315 769 State So.2d of opinion, joint this trial two de- was a State, 1975) 262 A.2d and v. 230 Jenkins jointly charged a fendants who were in (Del.1967). only There was one single information. being case, action tried. That it was criminal the to the Turning first Jenkins tried, however, being juries, two with no mention of Bruton. opinion there made understandable, not convert it into two criminal actions with because Jenkins This is In separate respect trial in each. that a days Bruton. 54 before was announced prosecutor in error. the was not The two court, benefit having not the The Delaware charged were jointly defendants with entic- Bruton, delivered an out- nonetheless ing away spot, victim a their to secluded observed, It first and standing decision. her, charged charged raping with and with directly from Beаm’s brief: borrow this murdering testimony her. As the of each will “Ordinarily, an abuse discretion given establish, at trial would later there mere that the the arise fact from that was no doubt whatever but the victim admission co-defend or of a confession raped and and was murdered that one ant, moving defendant implicating the guilty, or both same him, against and will be not admissible degrees. varying oth joint the trial. Some introduced at (1) present er must be such as: factor stand, both took Where defendants the substantial, competent other absence of and subject and were therefore available e.g., guilt, Bur evidence of the movant’s cross-examination, absolutely there was no (2) State, supra; antagonistic de ton v. application of the rule. basis Bruton between the as reading The correct of that case is the that fenses co-defendant Barbaro, movant, 395 e.g., People the v. only applies one con- rule when defendant’s (3) 264, (1946); 692 Ill. 69 N.E.2d going against, fession is to be introduced as and, difficulty segregating the evidence because cannot be made take the to. mov stand, and the the is between the implicated co-defendant who co-defendant 384, ant, State, 76 Md. e.g., Day v. 196 by thereby that confession is denied his (1950).” right A.2d constitutional of confrontation—the 729 right to cross-examine. Brief, p. (emphasis 24 add- Appellant’s ed). brief, 22, opening beginning p.
Beam’s at And, then, compelling proposition: equally as as Justice advances having opinion, Brennan’s Bruton proce- The trial court that such believed after of those noted neither co-defendants that problem dure would solve the created trial, charged murder had testified rule, i.e., the Bruton both defendants pointed- succinctly court the Delaware given incriminating statements and ly stated: by using trial court the the believed degree culpability protected Insofar juries,
two
each could be
concerned,
try both
credibility against
given by
statement
other.
was,
together
in ef-
juries
Warner
Perhaps the
the two
Jenkins and
use of
eased
concern,
fect,
upon
extra-judicial
try each
somewhat
Bruton
but it did
Compare
other.
State
problem of
of the
not sоlve the real
conflict
statement
Desroche,
651,
209.
i.e.,
La.Ann.
17 So.
existed,
antagonistic
47
which
v.
de-
funda-
under our
appear
impermissible
This
joint
fenses which would
in-
concepts
justice,
of criminal
mental
trial.
eluding
right
by convincing
fy
judge
of an accused to be
the trial
evidence
examine,
by,
confronted
and to cross
his
justice requires a
severance.” Were
Aranda,
People
accuser. See
v.
adopt
strange
Idaho to
and ancient
Cal.Rptr.
Cal.2d
ion found was written it was after girl. other and this records, necessary go to even to both and A Yes. that, doing the conclusion first reached Now, Q you say handcuffed Shawn was that had not testified. girl girl. to the little himself Which Much later it is he did. At discovered that that? my I the time I concluded initial effort was believing into had deceived that there been A Donnette. Scrog-
no cross-examination of Beam Q you given him the hand- When gins’ majority A re-reading counsel. of the cuffs? opinion contrary. me informs not to the got seconds A Just before we be- —five appeal Any record on is so insuffi which got fore we there. that, appellate sponte cient even with sua Q any Was there discussion about the judge it finds augmentation, appellate an handcuffs? perhaps and confused is not an mistaken case, adequate record in and never joke. just going A Just a He was capital case. with joke around them. Q joke them? Just around with asserting ap- my
I rest case that pellate record is a an abun- mess. Given A Yeah. con- appeals and no dance of time other girls? Q Did know the two time, might it feel sume be that would night ’em before. A I’d seen I am Presently I do not. comfortable. They know their names. told us didn’t however, convinced,- rule the Bruton names, just forgot but ’em. their case it in this application, had no teasing Q say with did not Shawn was applied in a manner which girls? promote search for truth.” “the action, earlier, one infor- been continuation of
6. is but have As mentioned there defendants, appeals charging there is properly both both would have been heard at mation action, appeal of The one criminal C-5527. time. same properly would to this defendant Court each Q Could see? A Yes. A Yeah. Q With the handcuffs? Q How far could see? A Yes. A About five feet in front of me.
Q with his knife? And Q Five feet?
A Yes. A About that. Q you got way Then the knife on the Q When Shawn was doing what Miss Lenten’s home? expressed jury, were doing?
A Yes. Q halfway And walked about with A Standing there. girl? the handcuffs on the Q You trying weren’t help girl? A from the house. Two blocks No, A I was not. Q just walking So hand in Q doing Was she this willingly and vol- hand the handcuffs on? untarily? A Yes. less, yes. A More or Q Which hand did Shawn have hand- Q also, participated cor- girl? cuffed to the other rect? A His left. A I did. Q His left? Q How did Shawn remove the hand- A Yes. cuffs from her put them behind her
Q gave you He the knife so that back? take them off of him.
could A his knife. With A Yes. *32 Q his knife? With Q right-handed. He is A Yes. A Yes. Q say did he do this? And —how Q girls’? long were at How put her to A He undone one and told A 40 to minutes. put hands behind her back her behind her back. handcuffs Q her You watched TV and watched play Pacman? little brother Now, Q apparently didn’t smoke. marijuana to A Yes. No, I smoked mine be- we did not. A Q there you play Did with the knife there, left the we got out before fore we
the house? house. No, A I did not. Q What house?
Q say you the knife? You didn’t have Sandy’s. A No, soon gave A that back to Shawn Q why you still stoned? Is that were her and him. as the handcuffs came off A Yes. Q you got Safeway When or behind you say this Safeway in thе area where panties off? Q he slice her How did place? took A his knife. With A Yes. laying in she Q position What was Q Was it dark? panties off? her he sliced when Yes, A it was. laying on her back. A She was Q How dark? inter- you had sexual Q This was after her? course with A Dark.
Q Very muddy? Was it gooey? no, A I hadn’t had sex with her Yes— A Yes. yet. Q Gooey? Q panties her So were still on when A Yes. Shawn had sexual intercourse with her. Q your Could feel feet sink down Yes, A then he sliced them— into it? Q they Were off of legs, both on both A Yes. legs? Q How far did sink down in the soil Yes, they A was. at the bottom of that creek? Q jeans? her How about A I’m really sure. jeans A Her pulled way all of the leg. down Q good and off one guess. Give us a Q leg. inch, Off of one Maybe A a half if even that. A Yes. Q apparently you Then trying give her CPR? Q panties Her legs. were still on both A Yes. Right. A Q That was after he Q Now, had held her under apparently you say Shawn took the water for awhile. her to the creek. A Yes.
A Yes. Q About two minutes. Q you doing What were while he was taking her to the creek? Yeah, A in that area. Walking A asking behind what the hell Q And then had her back out on on, going doing. what was he the bank? Q say slipped You she and fell in the A I did.
water? Q you pick up carry her A she did. up back on the bank? Q water, jumped Shawn in the too? No, A laid her back on the bank. A Yes. Her feet was still in the water. Q deep How was the water? Q Where abouts in A Exhibit do *33 that? A deep. About waist
Q right And he was out in it? . Right (indicating). A there Yes, A he was. Q Right trees? between two Q girl Was fighting? A Yes.
A No. Q Were there two trees there? Q fighting She wasn’t at all? Yes, A there were.
A No. Q Was there limbs on those trees? Q you doing? What were A Yes.
A What? kind, Q many What how limbs? Q you doing? What were sure, probably A Pm not three. going A I was down the water. Q Three?
Q You went down the water? A They Yes. went out into the water. Yes, A I did. Q They went out into the water? Q Was' the bottom of muddy? the creek A Yes. Yes,
A it was. Q You were between those two trees? time—
A But at the A Yes. Q you At that time had not heard Dr. Donndelinger testify, you? Q How wide is that? A I’m not sure. Well, no, A at that time I was scared. didn’t know going what was on. Shawn, Q apparently you Then before him, stop just plunged that knife could Q you But at that time told the officers throat, right stop into her before could just sliced her throat once. him? Yes, A quite I didn’t remember A Yes. night, what went on that ‘cause I was still in a daze. Q many How times did he do that?
A Four five. me, MR. WHITE: Excuse Your Honоr. I would ask that the responsive witness be Q Do recall when were arrest- question. to the ed in Nevada? Yes, just COURT: responsive be Yes, A I do. question. Q What did tell them? THE WITNESS: Yes. A Huh? give you COURT: Counsel will oppor- an Q did tell them down in Ne- What tunity to come back on necessary. direct if
vada? IA don’t'recall. BY MR. WHITE: Q help your if Would it could read Q long did How have the knife? statement? A Well— Yes, A it would. Q That knife. Q Have read the statement? A Approximately five minutes. reading
A I’ve been it. Q Apparently you girl if it asked the Q reading You have been it? right, yes? was all and she said Yes. A A Yes.
Q time read it? When was the last Q said, When Shawn going “We are Friday. A you,” say kill she anything? didn’t Q Friday? said, “No, Just A please prom- She don’t. nobody. ise won’t tell Don’t kill me.” Yeah, a lot A last week. But I’ve had things mind. of other Q nobody Won’t tell what? Q page, of the Down at the bottom her, A That we had had sex with
you tell the officer he sliced her throat place. this had taken once? Q say Did she she wouldn’t tell no one? page What are on? MR. HAYNES: A she did. Page MR. WHITE: 8. *34 Q you say Did hear her that? BY MR. WHITE: Yes, A I did. Q you said? Is that what Q Where was she when she said that? Those A words. are Those was Well, A walking she was down to the his words. creek. Q just said once. What did The officer Q walking She was to the creek? you say? Yeah, holding A with Shawn Well, go, I behind her goes, he “Just once?” and
A very tightly. her hands “Once, I said. one slice.” That’s what Q Q say Where abouts did she One slice? this? Yes,
A did. we Q girl you tell him had A Well— Did been killed? Q diagram, show the where On at, approximately. was she Yes, A we did. here, Between somewhere A here Q tell Mr. you you Did had Short (indicating).
in there girl? drowned the Q they I have iden- Down where believe No, A I did not. some ties? tified railroad Q you What did tell him? A Yes. A I told him that Shawn under held her Q youDo those railroad ties? remember couple got away of times that I him and started CPR and her then he sliced Yes, A I do. throat pushed and I her head under at that Q clearly that You could see them time away. and turned night? Q Mr. How did Short react? Yes, I A could. A He didn’t believe me. Q police, Did after this was tell the you? Q believe He didn’t with, turned and over both left? No, A not. he did
A I did. Q say? he What Q Why is it didn’t I be- said, ya. didn’t —he A “I don’t believe He give you.” to until the handcuffs back more than do lieve Shawn realty? Red got to the Steer or I believe Q more than “I believe Shawn you”? A I don’t know. Q But was where the do recall that A Yes.
exchange place? took from Q comment prompted that What A it is. Mr. Short? Q given him knife Could have his A What? that time? from response Q prompted that What No, A I did his knife. not have Short, recall? do
Q deny having You the knife. say then? A did he What only A I did not the knife. Q Yes. minutes, five I did not have it at
it for but “Well,” “I advise goes, says, A He killed, she at the her the time was time “Well, I am I go, you to town.” leave throat sliced. Nevada town, going I'm to leaving reason quit Q until she isn’t looking job. But held her under this for a for planning been wiggling. leaving. I’m I’ve two weeks.” only wiggled once. A She to look Q going Reno You were Q only wiggled once. She job? was sliced. A once after her throat Just planned. it’d been right, but A That’s Q You held under. knew dad, everybody mom, my My Yes, I A did. Neva- job go look for a leaving town da. Q wiggling. she quit Until togo only wiggled stated once. occur
A I she Q it ever *35 done? you had what tell police Yes, did. it A Q apparently told Wes Short You you? Why didn’t night. Q happened everything A Yes. A promise Because I made a to Shawn Q Sandra’s, you When you went to that I anybody, wouldn’t tell I don’t shoes on? promises. break No, A I did not. Q promise You made a to Shawn? Q Were barefooted? right. A That’s Yes, A I was. Q him threaten not to tell you, MR. WHITE: Thank Mr. Beam. you?
on COURT: Redirect the State? No, A I did not. He’s the one that me, question. asked me the He told he asked me if I nobody wouldn’t tell and he REDIRECT EXAMINATION said, “Okay, wouldn’t tell on me. And I I QUESTIONS BY MR. JONES:
promise you I won’t.” IAnd did not threaten him at all. Q just couple things Mr. I want to make sure understand that Q Were still stoned? panties understands. Miss Lenten’s little,
AA not much. facing were sliced off while she was Q How much is a little? ground. Her stomach would have been ground, right? A I faced to the really don’t know. is that Q A Yes. Apparently you girl had the on the bank, trying give her CPR? Q just Scrog- And this was before Mr. gins going A was Yes. have what referred as, believe, butt, in the screw her Q plunged That’s when Shawn right? knife into throat? that, They A was cut off after he done A Yes. got poop when he on him. Q laying Was she on her back? Q panties Then he cut the off? Yes, A she was. Yes, did, A off to one side and then Q How did he slice her throat when she slipped leg pulled them off the other laying on her back? pants off. A How did he slice her throat? understands, Q everyone Just so Q Yes. position was she in at that time?
A With the knife. A She on her stomach at that time. Q right-handed? Did he do it Q questions White asked few regarding the number of times Miss Lenten Yes, A he did. you, went was slashed and read over Q laying on her back? And she was your some of comments with the A she was. You started to officers down Nevada. Q did he it? How do respond to that answer. And as under- it, Twedt asked one time stand Officer her neck and A Put his hand across you just respond. Were started sliced back. going agreeing Twedt and not with Officer Sandy’s that Q over to When went point? at that into the full details had done. evening, you her what told A I was. exactly. A Not Q discussed those railroad Mr. White Q You told her— dia- to those you point ties. Could somebody’d been killed. A That gram? Q Pardon? Okay. A killed. Somebody A had been lost, lighter was your Q Is that where Q Somebody killed? had been that area?
655 Yes. A
Q you trip ties? over those
A I did. reason remember
Q Is that another there? being ties
those Yes.
A
Q asked about Mr. also White said,
something that he believed Mr. Short you. Is than he believed
Shawn more asked?
essentially question that was
A Yes. Now, time
Q that because at is you? blaming everything on
Shawn Orofino, Kinney, E. for claimant- Robert Yes. A appellant. Q your education Barrett, Boise,
level? for W. defendants- John respondents. special been in ed all A have special completed grade the ninth life. say a sixth probably I have
ed.
HUNTLEY, Justice.
grade education.
from the Industri-
Marigay
appeals
Cone
you.
Thank
MR. JONES:
of her claim
denial
al Commission’s
chal-
benefits and
Compensation
by De- Worker’s
Recross examination
COURT:
bulging
her
disc
lenges
finding
its
Scroggins?
fendant
spine
caused
L4-5 level
her
was not
exami-
MR. WHITE: We
no recross
during
course
occurring
by an accident
nation,
Honor.
Your
floor
scope
employment
down,
may step
sir. The
You
COURT:
Valley Hospital.
at Clearwater
nurse
may
its next witness.
call
State
bulg-
found
The Commission
“[T]he
likely caused
Claimant’s
ing disc is most
con-
[degenerative disc
preexisting
disease]
findings of the
Where contested
dition.”
supported
are
Commission
Industrial
Supreme Court of Idaho. awarded. fees Nov. 1985. SHEPARD, C.J.,
DONALDSON, BISTLINE, JJ., concur. BAKES