State v. Creech

P.2d 463 Idаho, Plaintiff-Respondent, STATE of CREECH, Eugene

Thomas

Defendant-Appellant.

Nos. 15000. Idaho.

Supreme

May 1983. Denied 1983.

Rehearing Sept. Boise, Kehne, Wiebe,

Rolf Klaus Ada Office, County Public Defenders for de- fendant-appellant. Jones, Gen., Leroy, Attys. H. Jim

David Prior in question, to the offense Creech Thomas, Gen., Boise, Lynn E. for plain- Sol. argument and Jensen had over engaged tiff-respondent. television and over Jensen’s littering floor, Creech, jani- dirtying the for which

SHEPARD, Justice. tor, responsible. Apparently the two good Although were not on terms. appeal This from a Creech death sentence himself imposed upon given has more than one version of defendant-appellant Thomas Eugene Creech after his plea murder, to in guilty appears day that on the charge degree of first cell, murder. The question, while Jensen was out of his cause is before this pursuant Jensen approached swung Creech and a provisions 19-2827, of I.C. “Whenever the weapon sock at him which consisted a death penalty imposed, upon and took the containing batteries. Creech court, judgment becoming final in the trial Jensen, weapon away from who returned the sentence shall be reviewed on record emerged his cell but with a toothbrush by the Supreme Idaho,” Court of and also a taped which had razor blade. When been Creech, an appeal by asserting filed met, again the two men Jensen made some error certain proceedings, actions and Creech, movement who then struck toward orders of the trial court. We hold that the eyes battery with the Jensen between the imposed was validly conformity sock, laden Jensen to the floor. knocking with the statutory for requirements the im- continued, fight according The to Creech’s position of a death sentence and that version, the razor swinging with Jensen sentence imposed was in violation of hitting Creech Jensen blade Creech and either the Constitution of the of Ida- State The battery plate with the filled sock. ho or the Constitution the United States. shattered, skull and imbedded in Jensen’s We affirm. on splashed blood from Jensen’s skull was Finally, the floor walls. the sock broke and following

The facts regarding partic- out, time by the batteries fell and and ular offense are by disclosed the record. At helpless. then com- Jensen was the time of the question, offense here in Creech kicking Jensen about throat menced Creech was an inmate the Idaho State later noticed guard and head. a Sometime Institution, Correctional a serving life sen- blood, hospital, taken to the and Jensen was degree tence first murder. victim There day. where he is some died same offense, Jensen, of this Dale been had con- indicating that evidence in the record victed of car theft was a serving and sen- other inmates Creech had been enticed tence in the same Jensen institution. had in,” did judge to “do but district Jensen some years earlier a gunshot sustained had been the murder not decide or find that wound to the head which had necessitated by plan. performed on contract part removal of of his brain and the placement a plastic plate in his skull. charged Creech was speech His and motor functions were im- pleaded guilty. initially murder and paired to some extent. At the time of the However, response apparently and later offense, both Creech and Jensen were Creech, and his counsel to a letter from he housed in the maximum tier security of the court to entertain brought were into institution. plea his request change Creech’s tier,

In the objections maximum of defense security only one guilty. Over counsel, inmate at and any accepted one time was al- ordinarily plea Creech, however, sentencing lowed out a a hear- of his cell. had the court set date for thus, been made de- janitor sentencing hearing, while ing. Creech Prior to duties, on performing cleaning he might fendant’s counsel demanded mitigating cell the issue aggravating be out his while another inmate was by a privi- sentencing his factors and also demanded out of cell exercise or shower Defense further demanded leges. jury. counsel wit- sentencing hearing formal nature and based on evidence adduced from solely solely based on the testimony testifying of live wit- personally present nesses nesses, hearing; and he objected consideration open court at hearsay evidence judge used in the for- here committed whether the district of findings aggravation mulation aggravating error in of the weighing circumstances; mitigation. finally, All of those demands were de- mitigating nied. penal- of the death imposition whether the al- statutory scheme which ty, under our the sentencing hearing, At testimony was lows the imposition defense, offered both the and the or recommen- participation without relating to the mental condition of Creech. an-We jury, dation of is unconstitutional. psychiatrist, A on behalf testifying negative swer all three issues State, offered as his professional opinion affirm the the district court be- holding that Creech did not suffer from any organic low. syndrome, brain generally depart did not life, reality from in his day day and was the sentencing hearing At the outset of to appreciate wrongfulness able of his requested the court take State conduct and conform acts to the require- his judicial notice of the court’s entire and file ments of the law. A psychologist, testify- presentence report of the which the district defense, ing opinion offered as his judge had be prepared. ordered Defendant Creech, Jensen, during fight with objected and sen- demanded the entire his capacity lost appreciate wrongful- tencing record live produced by be witness- of his ness conduct to conform and his con- court, testifying es de- open basing his duct to the requirements of the law. The mand on I.C. 19-2515—2516 and §§ that, psychologist further testified in his case law those interpreting statutes. That opinion, Creech from suffered antisocial motion, demand was as a was treated personality disorder, a defi- learning denied. cit, from schizotypal disorder, personality sentencing We outset that note at the a and from a borderline personality disorder. live solely decision made on the basis of court, The district although not expressly testimony constitutionally is not mandated. ruling Creech, on the sanity of did find that 32(c) Rule Rules of the Federal of Criminal the defendant adequate was of intelligence a provides Procedure as matter of course capable and educated, of being trained and that the service shall probation court and further found murder was an re- presentence investigation make a intentional and act. calculated port imposition to the court before sen- Following the conclusion of the sentenc presentence report tence. The use of ing hearing, the district court made its objection over has been upheld, defendant’s written findings pronounced sentence con- despite report the contention that the of death upon Creech.1 Gregg tained v. hearsay. Georgia, 428 U.S. 2939-2940, 153, 203-204, 2909, 49 presented issues on this 96 S.Ct. appeal are (1976); whether I.C. L.Ed.2d 859 United v. Tuck- require 19-2515—2516 States §§ 589, judge’s findings er, 443, 592 mitigation aggrava- 404 92 S.Ct. 30 L.Ed.2d U.S. (1972); States, tion and the imposition of sentence to be v. United 394 U.S. Gregg judge imposition 1. The district executed written docu- of such sentence as the district imposed upon judge just might appropriate ment which death sentence be find upon imposed upon open That with Creech. document served court Creech present. Creech his counsel. I.C. 19-2503 and Creech and his counsel Consistent remand, 43(a) pronounced require judge to be that order of the district I.C.R. open March, day and his on the court with a defendant counsel convened the court 17th being present. presence The district did not con- 1983 and in the Creech and counsel, Court, imposed requirements. upon with those This death form therefore, day February, 24th оrder of the Creech. The execution of that 1983, stayed pending proceedings vacated death and re- these said sentence before district court for the manded the cause to the Court. 489, 1134, 89 S.Ct. (1969); L.Ed.2d 442 pertinent 2516. 19-2515 provides I.C. § Johnson, State v. 581, 101 Idaho part: 618 P.2d (1980); Ferreboeuf, United v. States guilty, verdict of “(a) plea After a or (9th F.2d 832 Cir.1980), denied, cert. upon the where a discretion is conferred 934, U.S. 101 S.Ct. 67 L.Ed.2d 368 punishment, court as to the extent (1981); Bell, Gelfuso v. (9th 590 F.2d 754 court, written sug- the oral or upon Cir.1978). This Court has held that the trial there are gestion party of either

judge has broad discretion in deciding what properly be may circumstances which evidence is admissible at the sentencing aggravation taken view either in into hearing, Johnson, v. State supra, and that mitigation may, its punishment, the rules of evidence do not apply discretion, summarily, hear the same at a sentencing process, Johnson, supra; State time, notice to specified such Tucker, 539 P.2d 556 party adverse as it direct. (1975). All of the above holdings comport with the constitutional mandate “that there

be taken into account the “(c) circumstances of In all cases in which the death together offense shall, with the character penalty may the court imposed, propensities conviction, of the offender.” Pennsylva after in- presentence order Ashe, nia ex rel. Sullivan v. vestigation according be conducted procedures such law prescribed L.Ed. 43 Florida, Accord Enmund v. and shall thereafter convene 458 U.S. 3368,

102 hearing hearing S.Ct. 73 for the all (1982); purpose L.Ed.2d 1140 Wil of coun- Oklahoma, arguments liams v. relévant evidence and 576, 358 U.S. 79 S.Ct. 421, in of the aggravation mitigation 3 sel (1959); L.Ed.2d 516 Williams v. New York, hearing, offense. At such the state and 241, 337 1079, U.S. 69 S.Ct. 93 L.Ed. present 1337 defendant shall be entitled to (1949). We further note that all relevant evidence in aggravation United Supreme States Court has in several at tri- mitigation ... Evidence admitted instances sentence, set aside a death where al shall be considered and need be Court deemed that the circumstances repeated sentencing hearing. at the Evi- under which the imposed sentence was did dence offered at trial but not admitted not allow the proper in-depth consideration necessary may repeated amplified be or if particular of the circumstances of both (Emphasis add- complete the record.” offender and the offense involved. En ed.) Florida, mund v. supra; Eddings v. Oklaho ma, 104, 102 869, 455 U.S. S.Ct. 71 L.Ed.2d 1 19-2516 provides: I.C. § (1982); Ohio, 586, Lockett v. 438 98 U.S. circumstanc- into Inquiry “19-2516. 2954, S.Ct. 57 (1978); L.Ed.2d 973 Roberts cir- of witnesses. —The es—Examination Louisiana, 633, v. 1993, 431 U.S. 97 52 S.Ct. the tes- presented by cumstances must be (1977); L.Ed.2d 637 Woodson v. North Car open of witnesses examined in timony olina, 280, 428 2978, U.S. 96 S.Ct. 49 L.Ed.2d court, that when a witness is so except (1976);

944 States, Winston v. United 172 attend, sick or infirm as to be unable 303, 212, 43 (1899). L.Ed. 456 magis- be taken deposition may also, Texas, See Jurek v. 428 U.S. 271- court, county, trate of the out of 2950, 2956-2957, 96 S.Ct. 49 L.Ed.2d party such notice to the adverse as the (1976). testi- court direct. No affidavit or

Thus, argument appellant kind, that the mony, representation or ver- written, matters which may be considered at a sen- re- bal or can be offered to or thereof, tencing hearing court, must be limited to testimo- judge ceived or a in ny adduced from witnesses there present aggravation mitigation punish- or foundation, ment, any, interpre- must find its if except provided and the language preceding added.) tation I.C. 19-2515- section." (Emphasis §§ Here the district court accepted presen- Osborn was noted that the “unrea- tence report compiled by a probation soning officer adherence require- to the formal which ments I.C. included recitations would not materi- prior § murder [of 19-2516] ally statutory to the convictions, add achievement of pending charges of first objectives” and held that admission of murder, other felonies of which Creech had Id., was not error. presentence report been charged convicted, or transcript 195. Idaho P.2d from a prior which Creech was convicted оf degree murder, reports of rules of Under the established psychiatric interviews, Creech, letters from statutory construction, required we are and the manuscript of an autobiographical I.C. 19-2515 as language construe § paper Creech, written by all of mate- language being consistent I.C. rial was considered 19-2516, if such construction is at all § in the instant case. possible. explained As we Union Pacific v. Appeals, R. Board of Tax 103 Idaho Co. Appellant asserts that any reasonable in- (1982): 654 P.2d terpretation of I.C. 19-2516 mandates § in pari which are materia are “Statutes that only testimony oral is to be admitted construed to the end that together and considered ain sentencing hearing and legislative intent will be effected. [Cita hence the admission and consideration of Meyers tions As stated omitted.] presentence error, written report was Falls, 81, 89-90, 11 of Idaho City particularly where here appellant had (1932): P.2d demanded the hearing be limited to pari ‘The rule that statutes in materia live testimony. together are to be means construed Appellant’s assertion the re- regarding each act is to be inter- legislative quirements of I.C. 19-2516 con- has been relating with other preted acts sidered rejected by this matter or subject. same Statutes recent case Osborn, materia when relate to the pari 631 P.2d 187 In Osborn it was subject. same statutes are Such taken held that the statute does not displace together system, construed as one exclude the discretion granted otherwise to object the carry and is to into effect the state procedure as to the presenting intention. It to the be inferred that evidence of aggravating at circumstances relating a code of statutes to one sub- the sentencing hearing. There the Court ject governed spirit one and stated: and policy, was intended to be consist- ent and in its parts harmonious several “The last sentence of I.C. 19-2516 § provisions. and the purpose For makes it we clear that are to both treat intention, learning the all statutes re-

sections as the together setting pro- forth lating to the subject same are to be cedure to hearings. be followed such compared, and as still in so far force provides previ- The statute that evidence brought into harmony by ously presented be re- interpreta- need not (Citations omitted.)” tion.’ peated if amplified indeed be both statutes with the Since deal same sub- parties desired. The to are ‘entitled matter, i.e., ject sentencing procedures, we present all relevant evidence’ [other] enjoined are compare harmonize desire. The manifest intent is as place them. possible much relevant information as provided can be before the 19-2515(c) clearly requires I.C. § court. serves to provide This also that, all pen cases in which the death “[i]n court with much information and as shall, as may be court alty imposed, the after possible conviction, complete appel- a record order a presentence investiga Id., 41U-412, 102 Idaho at be according pro late review.” tion to conducted to such Hence, (brackets original). as are prescribed by 631 P.2d 193-194 cedures law.” court, explain no discretion exists in the other than opportunity afforded a full the conducting presentence to order of a rebut adverse evidence.” investigation. sets out the I.C. 20-220 § Johnson, 581, 618 Accord State v. scope of a writ- investigation, requires such v. New (1980), citing Williams P.2d ten mandates: report, and York, 93 L.Ed. 69 S.Ct. parole probation “The officer shall (1949); Ballard, of- inquire the circumstances of the into con- Here is no 461 P.2d there fense, record, history and criminal social afford- was not tention that the defendant defendant. present condition the has protections, and the defendant ed those investigation Whenever such practicable, below, challenged here or point, at no either exam- physical shall include a and mental contained truth of of the material any the ination of the defendant.” presentence report. in the argu- logical appellant’s A extension We admission hold court’s .that ment would be require investigation re presentence consideration report sub- completed, a written to be was not error. port mitted, but the defend- demand of ant, reading to refrain court next that dis Appellant asserts be, course, report. Such a result would error its court committed reversible trict unnecessary. We hold anomalous and cir mitigating finding of aggravating closing language I.C. 19-2516 § aggravat that the cumstances. He asserts an ex- clearly unambiguously provides unsupported circumstances are ing testi- ception required to the otherwise oral record; included in wrongly court mony and that those authorizations of I.C. non-statutory aggra weighing process its purview 19-2515 fall within § circumstances; statutory vating exception. intended the court circumstances which aggravating 19-2515(f) listed in I.C. may consider as § Appellant argues interpreting the unconstitutionally vague; presentence investigation requirements of to consider unconstitutionally failed court exception as an live I.C. 19-2515 § reduced of the defendant capacity ren requirement of I.C. 19-2516 witness § mitigat being murder the time nullity. requirement live ders the witness circumstance; weighing and that ing above, we do not find the two As noted 19-2515 is unconstitution of I.C. process § statutes be irreconcilable because of a al, imposition event, in that it allows if but exception language, circum aggravating where of the two statutes could provisions circum harmonized, outweigh mitigating do not provisions then the I.C. stances beyond a reasonable doubt. super to be stances would be construed 19—2516 § en seded, 19-2515 the later since I.C. Su the United States The decisions of Rexburg, City Mickelsen statute. v. acted sentencing discre that require preme 305, 612 542 P.2d 1 pro to limited, and so tion be directed a death Yoelin, prevent and to consistency 94 Ida mote in v. stated As “wantonly” 794, 1264, being 791, (1972), the sentence 498 P.2d 1267 ho Georgia, (Furman v. “freakishly” imposed free consider results of the court is to 2762, 2726, 33 reliability if investigation 408 U.S. S.Ct. prehearing J., (Stewart, concur report (1972) is the information contained L.Ed.2d 346 i.e., “meaningful a basis protections, ring)), provide insured certain in which it the few cases distinguishing a afforded full “(1) that the defendant be in which many from the cases imposed is evi- present favorable opportunity (White, (id., at 2764 not” S.Ct. dence; is (2) the defendant be afforded that Ohio, 438 J., Lockett v. U.S. concurring); all to examine opportunity a reasonable 586, 599, 2954, 2962, L.Ed.2d 973 S.Ct. pre-sen- contained the materials C.J., plurali- for the (1978) (Burger, writing (3) that be report; tence the defendant 153, 188, v. ty); Gregg Georgia, 428 sentencing hearing clearly sup- dence at the (1976) findings aggravat- L.Ed.2d 859 ports the court’s J., (Stewart, announcing judgment ing mitigating circumstances. the court and an Powell opinion which the trial that Appellant next asserts Stevens, JJ., time, join)). At the same erred, weighed non- judge court in that the sentencing process must flexibili allow circumstances statutory aggravating ty, in that it be order humane and sensitive circumstances, thereby mitigating against to the individual v. Eddings defendant. I.C. the strictures of violating allegedly Oklahoma, 455 U.S. 102 S.Ct. appears contention 19-2515. This § Ohio, (1982), L.Ed.2d 1 citing Lockett v. format chosen court arise from the supra. findings The were drafting findings. its Thus, an almost unavoidable conflict sections, i.e., into organized presents a legislature itself to attempting Found in Miti- Argument “4. Facts and design sentencing a process is both a * * * gation principled system consistent and of punish Ag- “5. Found in Arguments Facts ment and one that is flexibly humane be- gravation expressly found [not cognizant uniqueness of each individ ** * yond a reasonable doubt] See, Oklahoma, ual defendant. Eddings Idaho, supra. the aggravating circum Statutory “6. Circumstanc- Aggravating stances which a judge may con 19-2515(f), es Found Under Section sider in pronouncing capital a found [expressly beyond Idaho Code * * 19-2515, case are clearly laid out in I.C. (Mate- § a reasonable doubt] thus, possible, extent arbitrari added.) rial in brackets avoided, ness or the influence prejudice to the circum court not limited as but the necessary individual consideration is aggravation stances it find in those preserved. nonetheless The open-ended al Thus, 19-2515(f). listed under I.C. § lowance of mitigating provides evidence findings section of the court’s denominated defendant with the opportunity present Arguments “5. Facts and Found in Aggra possible justification every a sentence of vation,” although including circumstances less than death. Such an mitiga unlimited statutorily expressly listed and not tion provision approved Eddings doubt, beyond found is not reasonable Oklahoma, supra. hold, therefore, We 19-2515(a) court, error. I.C. permits § the sentencing provisions of I.C. 19- §§ upon the suggestion party either satisfy 2501-2523 those guidelines, as we un might there are prop circumstances which them, derstand from the holdings various aggravation mitiga erly considered Supreme United States Court in death tion, to hear those circumstances. That lan penalty cases. guage strongly suggests judge that a should We turn now to whether the sen hear all par relevant evidence either tencing complied with those statutory ty interpreta desires to set forth. Such provisions. Appellant argues 19-2515(f), that the court tion is not I.C. contradicted in finding beyond erred statutory aggravat reasonable doubt which merely lists the that the defendant circumstances, had been con previously one of which ing least murders; victed of other the defend doubt if the. beyond must exist reasonable ant had exhibited disregard imposed. utter for hu ultimate is to be sanction stated, man commit propensity life and mur scope As above a wide of evidence der; that the ac personality background defendant was under sentence for first murder the time of his cused must be available to the actions; and that both for the sentence to fit the individual defendant order York, victim were inmates at the v. 337 penitentia state defendant. Williams New U.S. 1079, 93 ry (1949). crime We when the occurred. We re 69 L.Ed. 1337 have S.Ct. viewed the record and hold that the list of factors set aggravating that the evi- hold

370 exclusive,

forth- in the statute is not albeit cate any already enumerated circum stance, necessarily making 19-2515(f)(6) one of those factors must be thus I.C. § (See, surplusage e.g., found to exist a doubt mere Norton v. beyond reasonable upheld. Dept. Employment, for a sentence of death to be 94 Idaho 500 (cid:127) (1972)),we hold formal- P.2d 825 that the sentencing judge phrase Where as here finds, substantiated, disregard’ ‘utter must be viewed refer ly findings and his fac- set forth in statutory aggravating there are ence to acts other than those outweighed 2515(f)(2),(3), tors and those factors are not We I.C. §§ 19— circumstances, he has com- meant by mitigating phrase conclude instead that the is We plied statutory with the directives. circumstances to be reflective of acts or find no error. crime which exhibit the surrounding the utmost, for highest, disregard callous certain

Appellant next asserts that life, i.e., cold-blooded,pitiless human factors set forth as circum aggravating Osborn, slayer.” supra, v. Ida State 2515(f) stances I.C. are unconstitu § 19— 418-419, ho at 631 P.2d 200-201. chal tionally vague, specifically and he here lenges findings appellant that the that, definition, We hold limiting “utter human disregard had exhibited for a court have fulfilled the reviewing we as life,” 19-2515(f)(6),and a “propensity I.C. § Georgia, requirements Godfrey supra, v. murder,” 19-2515(f)(8). to commit I.C. § consistently ap- having thus tailored and principled law to a defi- plied according Osborn, capri- arbitrary nition that avoids the (1981),relying Gregg P.2d 187 v. Geor- penalty. infliction of the death We cious gia, 428 49 L.Ed.2d U.S. S.Ct. statutory aggravat- therefore hold that (1976), Godfrey Georgia, and on 2515(f)(6), ing circumstance of I.C. § L.Ed.2d 19— the circumstances the murder and (1980),we held that the statuto- challenged an utter it defendant exhibitеd surrounding narrow, ry language sufficiently direct life, is not unconstitu- disregard for human objective to withstand a constitutional tionally vague. challenge of unconstitutional unfairness.

We stated: Likewise, as reject appellant’s be we must limiting

“A ... construction 2515(f)(8) imper circumstanc- sertion that I.C. aggravating placed upon § 19— as provides, That statute ‘[b]y missibly vague. 2515(f)(6),that es in I.C. § 19— circumstance, that an murder, surrounding aggravating “[t]he or the circumstances defendant, conduct or conduct commission, by prior exhibited its defendant hand, has of the murder prop- for human life.’ To the commission disregard utter murder to commit circumstance, propensity a impor- exhibited define this erly continuing will constitute probably cir- which aggravating note the other tant Gregg and Fur- Under provision society.” threat to with which this cumstances fail does not man, statutory language cir- aggravating The second overlaps. Here, as being facially unconstitutional. cumstance, 19-2515(f)(2), that as I.C. § in Osborn argument with the murder at contrasted committed another defendant for human committed, disregard ob- the “utter regarding time this murder was “pro that the life,” be asserted for it cannot disregard could show an utter viously conceivably could circumstance life, aggravat- pensity” could the third human coming before murderer circumstance, 19-2515(f)(3), applied every ing I.C. § would construe state. We court in this knowingly created that the defendant per exclude, example, “propensity” many persons. risk of death great to kill but who no inclination son has aggravat- for the fourth same can be said an emotion during 19-2515(f)(4), rage, such circumstance, episode I.C. ing commits quarrel, re- or lover’s family al the murder was committed would doubt We offense of murder. presume we will not muneration. Since would murder convicted dupli- most of those legislative intent was to that the

371 murder, we re- again by way statutory commit and rather con- is built in of a view strue the “propensity” language specify increased likelihood quirement, there is an person willing, predisposed that who is a consistent, well-guided application killer, who destroying a killer tends toward circumstances. statutory aggravating such another, one with less life of who kills consistency, fair- system “can assure Such than the normal amount of provocation. op- in evenhanded rationality ness and We that propensity would hold assumes [type the state law ... eration of [T]his susceptibility, and even an af- proclivity, serves to assure that sentences system of] toward the act of mur- finity committing ‘wantonly’ of death will not be or ‘freakish- der. Florida, Profitt v. 428 ly’ imposed.” U.S. 242, 259-260, 2960, 2969-2970, 49 153, 96 S.Ct. Gregg Georgia, 428 96 U.S. J., (1976) Powell, 49 (opinion (opinion S.Ct. L.Ed.2d 859 of L.Ed.2d 913 in which Stewart, J., Stevens, Stevens, JJ., in which Powell joined). Stewart Accord JJ., joined), provision a similar Texas, Geor- supra, Jurek v. 428 at 96 U.S. gia’s statutory aggravating list of circum- 2958; at 428 Gregg Georgia, supra, S.Ct. upheld, noting stances was the Court at 96 S.Ct. at 2940. Here our U.S. Georgia Supreme sufficiently Court had has legislature required every capital meaning narrowed its to avoid its being sentencing decision be reviewed by stated, indiscriminately applied. The Court has, 19-2827, Court and I.C. further petitioner points 27-2534.1(b)(3) to § “[T]he enhanced uniform application by requiring which speaks creating ‘great risk of comparison capital cases. death to more than one While person.’ defendant, applied particular As to this such a phrase might susceptible of an finding clearly tai- propensity overly interpretation, broad the Supreme lored and correct. The defendant com- here Georgia Court of has not so construed it.” mitted murder at least four prior times Id., at 428 U.S. 96 at 2939. S.Ct. offense, the instant twice in Idaho and also Texas, In Jurek v. U.S. S.Ct. Oregon pres- California. There (1976), 49 L.Ed.2d 929 the Court re ently exist other of murder pending charges jected an argument the circumstance degree against in the first him. The testi- of “a probability that defendant would mony eyewitness to one of Creech’s commit criminal acts of violence that wоuld murders, previous coupled with psychiatric continuing society” constitute a threat evidence, prove appellant tends to that the was unconstitutionally vague. There the violent vengeful experi- and that he had contended appellant provision ences no remorse for his actions. Letters the court to required predict the future. It per- written Creech to law enforcement was noted that such speculation on future alleged sonnel numerous murders be- detail behavior is made courts countless times which he been yond already those for has daily every sentencing decision and in convicted and intimate his intentions to kill bail, every determination of and by parole statements in the future. Creech’s own constantly probation authorities deci responsibility approximately claim Jurek, supra, p. sions. U.S. statutory murders. However vague Stewart, J., p. (opinion S.Ct. language might be to be in the argued joined Stevens, JJ.). White, Powell and (which case we have al- ordinary assertion J., joined by Chief Justice Burger nevertheless, rejected), ready applied J., Rehnquist, holding concurred in the case, beyond any the instant we hold doubt the statutory aggravating circumstances of whatsoever that here has ex- appellant statute were sufficiently Texas narrow propensity hibited a to commit murder challenge in definition to withstand a continuing which will constitute a probably Florida, Accord Proffitt v. vagueness. society. threat 2960, 2968, 49 242, 255, 96 L.Ed.2d that, Appellant It has also been noted next asserts that the trial court process appellate where a uniform findings regarding aggravation re- erred in its 372

and mitigation, in that the court failed to before a death sentence may imposed, consider the reduced capacity of defend- sentencing “the authority per- must be ant at the time of the murder as a mitigat- beyond suaded a reasonable doubt that total ing circumstance. Appellant argues that mitigation outweighed by aggrava- is total since tion, the court did not mention such evi- beyond and that doubt reasonable dence in finding, its it must not have con- imposition justified,” of death is sidered such evidence. While 19- I.C. otherwise the must be less § 2515(d) directs that “the court shall set than death. forth in writing any mitigating factors con- That same contention was dealt with by sidered,” the practical effect of that statute Osborn, 405, this Court in v. 102 State Idaho is not to require judge to set out each 631 P.2d 187 Osborn is controlling and every presented circumstance to him in dispositive here. We there stated: rather, mitigation, but the plain language process, “The in weighing opinion our statute, hold, we requires the judge does not involve shifting the burden of which, to list that evidence in capacity persuasion but is concerned instead with finder, as a valid, fact he has found to be the presentation of relevant information competent, pertinent to the issue of sentencer order that a reasoned whether the death should be im- and considered decision can be reached. posed. accept To appellant’s contention The defendant’s burden is merely to would result in a requirement raise, in the aggravation-mitigation hear judge set writing every forth in considera- ing, any factors which might possibly tion that has been raised or has occurred to mitigate tend to his culpability for the him potential mitigation, as a factor in offense. He has full opportunity to requirement unworkable, we deem to be present argue those factors. The

impossible, and not to be from the gleaned court below then evaluates those factors statutory language. under the guidelines set forth in the stat Clearly, the court heard and decision, ute. His including his reason considered appellant’s evidence of mental ing, is then set forth in detail and this status from the testimony psychia court reviews the process. entire While trist and the and from the psychologist possible speak of a ‘burden’ of voluminous available in the information persuasion on the defendant to establish presentence The court report. reasonably why he should receive we leniency, feel appellant average concluded that was of that, sentencing process, under our intelligence, that he exhibited an exces had facts speak present for themselves once crime, sive rage committing violent ed. The completeness of evaluative and that he beyond rehabilitation. The process below and the mandatory review sentencing charged evaluating court is court, feel, we withstands consti the expert and will not have its testimony State, Tichnell v. scrutiny. tutional findings reversed absent clear abuse of 830; (1980); Md. 415 A.2d 848-50 Johnson, Simpson discretion. Watson, 120 Ariz. 586 P.2d 357, 597 P.2d (1979); Roemer v. Green (1978), cert. 1258-9 den. 440 U.S. Farms, Inc., Pastures P.2d (1979).” L.Ed.2d 857 (1976). This rule applies of evidence Osborn, supra, State v. 102 Idaho at criminal as well as in civil cases. 26. I.C.R. at 199. 631 P.2d We hold findings the above of the trial Appellant next asserts that Idaho’s court are amply supported by the evidence. penalty provisions are unconstitution al,

Appellant next asserts in that jury participation required is not process weighing aggravating decision, and miti but rather circumstances, forth gating as set I.C. discretion impose death sentence is 19-2515(b), Appel is unconstitutional. vested in a At judge. places other or at that, times, urges adopt juries lant us to a standard other have given been an inte- gral role in imposing death sentence. legislature adoption discretion our its However, we hold that jury participation assuming appro- Even that it policy. the sentencing process is priate validity not constitutional- for this Court to examine the determination, ly required. we legislative policy legislature judi- that agree with our would Furman 238, v. 408 Georgia, 92 U.S. S.Ct. process is sentencing the cial control of 2726, 33 (1972), L.Ed.2d 346 its progeny participation, in that jury to preferable have consistently of validity conditioned the consistency of re- constitutionally mandated death penalty provisions upon capacity their judicial of the ease probable sult is more in to be consistently, specifically, and non-ar- sentencing. bitrarily interpreted. The consensus of the holdings in death is penalty cases that drawn to no au Our attention is death penalty scheme fails the constitution- data, thority or other than bare asser al test if is susceptible it reasonably that which indicates .appellant, tion irregular, wanton, application, or freakish community reflect judges do not norms. only by as codified the legislature but Contrary to what the case in some also as interpreted We courts. deem states, judges ivory are not Idaho’s tower consistency key to be a requirement in the Although they may elitists. wear robe upholding of death penalty provisions as bench, they and sit an elevated neverthe being constitutional. less are elected from the communities in subject required are comparative

On consisten- reside. Our magistrate judges cy jury sentencing, required or it was stated are to stand for Florida, 242, in Proffitt 428 retention the percentage ‍‌​‌‌​​‌‌​‌​​‌​​​​‌​​‌​​​​‌​​‌‌​‌​​​​​‌​‌‌​‌‌​​‌​‍v. 96 U.S. S.Ct. their reten 2960, (1976): 49 L.Ed.2d vote generally to, 913 tion is assumed in part at least, be a community’s result their eval

“This Court has pointed out uation of them and the extent to which in sentencing a capital perform case can they comply community’s with the function, norms important societal Wither Indeed, election, Illinois, 510, and values. in the v. last spoon 391 519 15 U.S. n. 1770, 1775 15, S.Ct. number were evidently n. 20 held L.Ed.2d [88 776] (1968), it electorate represent but has never suggested community norms and sentencing is values and so were terminated in constitutionally re quired. And would office. our appear judicial judges So also district must lead, sentencing should if for election four anything, every years, stand with the even greater consistency in imposition judicial resultant oft-contested seats. The at the trial сourt level of capital punish outcome of recent elections demonstrates ment, since a trial judge is more experi that our district judges not insulated in sentencing enced than jury, from their and that their posi communities therefore is impose better able to sen are anything tions but lifetime sinecures. tences similar to those in imposed analo Further, evaluating in our legislatively Id., 252, gous cases.” 428 U.S. at 96 S.Ct. sentencing mandated death in penalty Ida- (Stewart, J., joined Powell ho, we note that the Supreme Court of the Stevens, JJ.). added.) (Emphasis has recognized leg- United States often Gregg Georgia, 153, also v. See 428 U.S. islative enactments are gauge a reliable (1976). S.Ct. 49 L.Ed.2d 859 “indicia of societal values.” Woodson Carolina,

We hold that there is no federal constitu- North U.S. S.Ct. requirement jury participation (1976), tional in citing 49 L.Ed.2d sentencing process Georgia, decision Gregg jury participation sentencing have 49 L.Ed.2d 859 We hold that process, judicial as contrasted discre- policy judgment legislature, our sentencing, places capital tion the policy within deter- which discretion in judges mination of individual states. We are of our state with manda- district appellate left to an examination of the exercise review tory vested this Court jurisdiction, of statewide underlying meets circumstances test of the facts and constitutionality. the death in those imposition penalty weigh- worthy cases are of consideration Finally, we turn to the require ing imposed whether the sentence 19-2827, ments of I.C. whereby every disproportionate. instant case death case this Court is enjoined to review the record to ascertain whether pas imposed Creech sion, prejudice any other arbitrary factor I, for two which resulted from conviction has influenced the determination impose record counts murder. The of first the death whether sentence and the death substantially person- there same reveals sentence is disproportionate excessive or al of Creech as is shown background imposed similar cases. of that instant case. circumstances

We have reviewed three of the more hitchhik- offense indicated that Creech was cases to recent come before this Court were ing they with a female friend and have the death In penalty. which involved during two the given a ride men who Creech, v. 589 114 State 99 Idaho P.2d trip interpreted course of the were (1979), Lindquist, and v. 99 State Idaho attempting Creech flirt with his (1979), although 101 both 589 P.2d Creech the friend. shot two men in cold Creech death, Lindquist and had been sentenced to their blood and threw the side of bodies off sentences, on this Court vacated the death the According eyewitness, road. to the Carolina, v. North the basis Woodson no and displayed Creech emotion thereafter 944 L.Ed.2d U.S. S.Ct. killings acted as if the were of no moment. invalidated (1976), effectively had Idaho’s and the con- Lindquist victim’s husband mandatory then death statutes. In the spired purpose to murder victim for the Needs, v. P.2d 130 99 Idaho State life collecting policies. insurance Several the (1979), Court affirmed trial court’s attempts were made on of the vic- the life holding that at the time defendant Needs Lindquist, tim instance of finally at the degree was sentenced on her first murder husband, the victim’s met the vic- pregnant conviction, sentencing no valid statute ex- site, her tim a remote where he shot murder, degree for the first isted crime of her through several windows of times the we and hence affirmed trial court’s completed killing by pull- car then degree second mur- maximum sentence for her to ing clubbing her from the car and der. death. legislative amendment in 1977 Since Osborn, In had worked defendant provisions of our death sentence to their victim, who with was a friend of the form, one case only has been present the defendant had threatened inform on to this which with a presented Court dealt partial- for a offense. The victim’s robbery murder conviction or a homi- road. ly body alongside clothed was found sufficiently heinous as to be arguably cide extensively about had been beaten She to the circumstances here as a comparable in the face, shot head three times i.e., 19-2827, case” under I.C. “similar head, shoulder, in the in the and once once Osborn, 405, 631 v. P.2d 187 abdomen. (1981). Osborn, In did not find disproportionately the death sentence to be Needs, previously the defendant had harsh, but remanded to the court for on several been of homicide and convicted findings mitigating factors. relating victim, kill the occasions had threatened to husband. was convicted who was her She We conclude in our consideration of remains of her husband. The of the murder the sentence proportionality imposed burned partially consisted here, victim those most com- nearly “similar cases” Although head or arms. Needs, torso without Creech, parable Lindquist, wounds, numerous stab since, torso contained the invalidation of the despite Osborn death, probably cause did not grounds, sentences other nevertheless Cardwell, regard. Knapp or a in either decapitation tion gunshots, resulted - noted, although denied, As above (9th Cir.), slit throat. F.2d 1253 cert. justi- have been well death -, 74 L.Ed.2d fied, held that no valid it was also, Gretzler, supra. State v. See of first the crime statute then existed for we affirm foregoing, with In accord degree murder. imposition the death court’s the trial none of recent We hold that these penalty. toward militates murder decisions case. leniency present granting of C.J., BAKES, J., con- DONALDSON, in which a defendant find no instance

We such crimes previous found cur. been found Thomas Creech has

those of HUNTLEY, Justice, dissenting. death. a sentence less than deserving of back more dating examined cases We have fact the nature of Despite fails to and our examination years2 than 50 fac- together aggravating crime remorseless, calculat such disclose where, ease if ever make this one tors has murderer multiple ing, cold-blooded be imposed, is to it should (with I) ever been exception Creech here, dissent. I must however, this Court. See State before 42, (Ariz. Gretzler, Ariz. P.2d 1 135 659 for proper remand utilization of I would im penalty 1983). We hold the death prece- sentencing procedures because and case is both posed proportionate in this here, majority if followed dent the sets just. cases, to two will do violence great future dou- justice of unconstitutional tenets of Although claims basic the criminal very ex post application and facto jeopardy ble this state: system of since appellant, not raised by of law are and (1) right by jury to trial has as discussed resentencing place taken confront right of the accused to (2) the possible such we have considered supra, against him. find no viola- the witnesses problems. We constitutional 571, Ward, 916 P.2d 19-2827(g) 98 569 v. Idaho to “col- State instructs § 2. I.C. Beason, 267, (1977); v. State 95 Idaho 506 preserve the all cases in records of lect and (1973); Foley, P.2d 1340 State v. 95 Idaho imposed from of death was which the 222, Atwood, (1973); 506 P.2d 119 95 State v. Further, year including we are 1975.” 124, (1972); 504 Idaho P.2d 397 State v. determining charged in each case Gomez, 323, (1971); Idaho 94 487 P.2d 686 “[wjhether sentence is excessive of death 727, Radabaugh, State v. P.2d 93 Idaho 471 imposed disproportionate to the Dillon, 698, (1970); v. 582 State 471 93 Idaho cases, considering the crime both similar (1970), denied, 942, P.2d 553 cert. 401 91 U.S. 19-2827(c)(3). Al- defendant.” I.C. § 947, (1971); King 28 S.Ct. L.Ed.2d 223 v. provisions requiring though these as we read State, 87, (1969); 93 Idaho 456 P.2d 254 State capital comparison from 1975 cases Gonzales, 152, v. 92 897 Idaho 438 P.2d appropriate present, it we have deemed (1968); Carey State, 706, v. 91 Idaho 429 thorough extensive review conduct an Hall, 63, (1967); P.2d 836 survey State v. 86 Idaho included cases. has Idaho murder Our (1963); Clokey, following: 383 P.2d 602 83 State v. 322, (1961); 364 Idaho P.2d 159 State v. 387, Page, P.2d 630 v. Le 102 Idaho State Burris, 395, (1958); 80 Idaho 331 P.2d 265 Osborn, (1981). Idaho State 102 v. 674 Snowden, 266, 79 State v. Idaho 313 P.2d 706 Garcia, (1981); 405, 187 State v. 631 P.2d Owen, 394, (1957); State v. 253 73 Idaho 378, (1981); State 630 Idaho 665 102 P.2d Buchanan, (1953); 203 P.2d State v. 73 Idaho Otto, 250, 646 629 P.2d 102 Idaho v. 365, Golden, (1953); 252 P.2d 524 67 State v. 758, State, (1981); Idaho v. 101 Watkins 497, (1947); 186 Idaho P.2d 485 State v. Fuchs, (1980); v. 792 State 620 P.2d 771, Boyatt, (1939); 59 Idaho 87 P.2d 992 341, (1979); State 597 P.2d 227 100 Idaho Vlack, 248, State v. Van 71 P.2d 58 Idaho 99, 1003 Lopez, P.2d 100 593 v. Idaho 260, (1937); Reding, 1076 State v. 52 Idaho 21, Warden, 592 Idaho 100 (1979); v. State (1932); Wilson, 13 P.2d 253 41 Idaho State v. Needs, Idaho (1979); 99 State v. P.2d 836 616, (1925); Hoagland, Creech, 243 P. 359 39 State v. 99 (1979); 883, v. P.2d 130 591 405, (1924); 228 P. Idaho mirez, 314 State v. Ra 779, (1979); State P.2d 114 589 Idaho 279 203 P. (1979); P.2d Lindquist, I 1972 decision in Furman Georgia, L.Ed.2d 346. Constitution, The Idaho approved first July it today, and as reads Furman, At the time of 18—4004 I.C. § provides in Art. 7: read: § “Right by jury. Every person trial “Punishment for right —The murder. — ” degree shall by shall remain of murder first jury inviolate .... punished imprison- or be suffer death it by jury That of trial existed life, prison ment in the state the time our was adopted pro- constitution shall jury may punishment decide participation vided jury capital of mur- Every person guilty be inflicted. sentencing process. Section of the Crim- degree der punishable in the second inal Practice provided perti- Act of 1864 not less imprisonment prison in the state part: nent years imprisonment than ten whom any person before “[A]nd extend to life.” tried, shall, indicted for murder shall be if In its post-Furman (1973), first session thereof, find person guilty such des- Idaho legislature deleted function verdict, ignate by their whether 18-4004 and all convic- I.C. made § murder of degree; the first or second degree tions of first subject murder but, if person such shall be convicted on This was at- penalty.' done in an court, the open confession in court shall tempt to remove the “cruel and unusual witnesses, proceed, by examination of Fur- punishment” aspects disapproved crime, determine the degree man. 18—4004 I.C. was amended give accordingly. person Every the words as below: striking out lined out degree, convicted of murder of the first “18-4004. PUNISHMENT FOR MUR- death; every person shall con- suffer murder in Every person guilty of DER. — the degree, victed of in the second murder shall or—be suffer death imprisonment shall suffer the territori- the-state punished by imprisonment in prison al for a term not less than ten life, prison the-jury may decide years, may and which be extended to Ev- punishment shall-be inflictedT life.” ery person guilty of murder in the second words, by determining In other jury, degree in punishable imprisonment is whether the of party guilty was either first years not ten prison state less than murder, degree or second determined imprisonmént extend to whether or penalty not the death would be life.” imposed. law to its The 1973 amendment restored the Hopper, In Blue Note Inc. v. 85 Idaho standing. 1864 157, 152, (1962), 377 P.2d 373 we stated: Court Supreme After the United States “The provisions per- of constitution cases of in a series of declared statutes taining jury to trial which were to Idaho’s other states similar as it apply construed to existed at unconstitutional, the Idaho 1973 version adoption date constitution.” in legislature responded 1977 112, 71 Whipple,

Accord: Idaho Anderson in- statutory providing scheme present (1951); 227 P.2d v. Holl 351 Christensen cir- or mitigating aggravating quiry into 87, (1898); 6 53 P. ingsworth, Idaho et forth in 19-2515 cumstances as set I.C. § 89, Smith, Comish v. 540 P.2d the statute seq. changed That amendment (1975). that it except pre-1973 language back to its restoring the function jury omitted employ jury in the Idaho continued 19-2515: reference I.C. added the during all of the capital sentencing process MUR- Supreme until the FOR intervening Court “18-4004. PUNISHMENT years Subject to provisions struck down the death Every of the United DER. States Code, 19-2515, every person its Idaho through statutes of most states penalty degree of murder in of the shall Legislature the Idaho enacted in 1973 our be punished by by impris- present suffer death death 18^4003 Sections 18-4004, Every person guilty onment for life. Idaho Code. murder in of the is punish- second Then, year, last the United States Su- by imprisonment in prison able the state preme again re- changed the rules than ten (10) years not less and the im- lating capital punishment many —after

prisonment may extend to life.” states, Idaho, response like had acted in Court, previous to its decision. in The for four Except entirely states which cases, new, set forth five more definitive capital punishment abolished the nine- in concerning rules sentencing where century, teenth every jurisdiction American imposed. sought to be has at least at some employed jury timе purpose codify The of this bill is to into sentencing in capital cases. McGautha these California, present Idaho law im- requirements 200 n. S.Ct. posed the states recent on these most n. 28 L.Ed.2d 711 Supreme United States Court decisions period During of over a century, begin- punishment capital so that we will ning jurisdiction after jurisdiction expression conform with this latest that retained the death penalty replaced its (Emphasis law.” supplied.) mandatory capital punishment law with dis- cretionary jury sentencing, Woodson v. The of purpose misleading statement in- Carolina, 291-92, North 428 U.S. suggests sofar as it that the Supreme Court 2978, 2985, 49 (1976) (plu- L.Ed.2d 944 decisions mandated removal of the rality opinion). By the time of the Furman functions; powers its traditional decision only Colorado was the Supreme the United States Court never state the nation to impose capital punish- or in earlier time this expression “latest ment without jury involvement the sen- required of the law” jury non-involvement. process. tencing This would be dissent without incomplete a statement of some of why the reasons Despite long history common law sentencing in the participation capital and under statutory law of the states process required, basis only upon the throughout involving nation of the jury practice, historical but also from capital process, standpoint compliance with the mandates legislature in the present statute enacted the constitutions States United totally excluded the jury from its tra- pre- and the Idaho. An excellent ditional function. legislative history sentation these matters is set forth the legislature shows that even brief, appellant’s pp. 69 through presented with a bill which provided for by which I reference hereto adopt and affix jury participation. presented, The only bill A. as Appendix drafted by general, one the attorney Senate Bill which was presented participation capital in the Since the legislature with the statement following is sentencing process part of purpose: jury” guaranteed by “trial as by inviolate Constitution, Art. 7 of Idaho I §

“RS 1954 would reverse and remand for sen- proper tencing urge legislature and would S provide statutes for proper amend the STATEMENT OF PURPOSE capi- in order that future jury participation cases will punishment subject a tal not be years few United Only ago, defect. this serious Supreme States Court made new “rules” concerning the imposition of II for serious that we crimes. So with this Supreme requires conformed Court 19-2516 Code § Constitution, miti- of the federal and interpretation hearing aggravating to determine gating If, here, circumstances during sentencing is the determination to occur. as process presented must be by testimony ‘may facts statutorily certain defined of. witnesses, of live that section reading than the differ- greater importance be of pertinent part: many guilt innocence for between or ence “The circumstances must be presented by crimes,’ avoid cannot lesser the state

the testimony of witnesses examined proof for requirements constitutional open court ...” them ‘by characterizing facts those The for Mr. attorneys timely made Creech on' extent solely that bear factors ” and appropriate pro- motion to have the punishment.’ ceeding conducted use live through the differ- Capital sentencing qualitatively is witnesses. The court denied motion proceedings, and sentencing ent other from “judicial and took notice” of its The file. reliabil- special there is therefore a need for foundation, file contained letters with no ity proceedings. recognized in the This presentence report containing mass Supreme the United States (much information of which was uncorrobo- Carolina, Woodson v. North 428 U.S. or unattributed), rated newspaper clip- L.Ed.2d pings. The court also considered a tran- (1976): script of a preliminary hearing which was

conducted before had com- discovery been is qualitatively of death “[T]he pleted. imprison- different from a position majority Death, asserted finali- long. ment however in its the only way to reconcile I.C. 19- § life ty, imprisonment differs more from witnesses) (providing with I.C. year than a 100 term differs from one of (requiring presentence 19-2515 that a in- § of that only year two. Because vestigation ordered) is report illogical difference, qualitative there is a corre- and a syllogism. fallacious sponding difference in the need for relia-

The two sections can be read is together that death bility determination following with the meaning: appropriate punishment specific (1) A presentence shall be report ordered case.” case; 19-2515(c); in every capital § de- flowing majority The result (2) Findings aggravating mitigat- anomaly is rather a curious today cision ing circumstances can be based I know no other proceeding Idaho law. presentence report representations court, presided over a district district party counsel unless either demands a wherein judge, presented by attorneys, hearing; formal unrelia- hearsay incompetent and other (3) If requested by party, either the court permitted. excep- The one ble evidence findings statutory aggra- must make tion we now carve out relaxed vating mitigating circumstances is in evidentiary standards non-professional 19-2516; based on a live record. only capital proceedings.

(4) presentence re- All evidence and the capital sentencing Perhaps to some the port during weighing can be relied on important as other proceeding process. in routinely conducted our district matters 684, 698, Wilbur, In v. 421 U.S. Mullaney proceed- prefer to believe the courts —I 1889, 1881, (1975), 508 95 44 L.Ed.2d S.Ct. impor- the ings very high rank on scale Court stated: Supreme the United States to tance —both the concerned defendant de- may facts specified “Where proof all of that one and to those who believe will live or termine whether defendant important quality measure of the of a socie- for die, requirement constitutional the ty procedur- is the standard of fairness and can- proof the controlling procedure the provided jus- al the criminal safeguards the the choice of on state’s depend not tice system. which the litigation proof at stage of the

379 Wainwright, Proffitt v. 685 F.2d 1227 359-60, 362, 1205; Id. at 97 S.Ct. at (11th Cir.1982), noting that ing proceeding, even on the bifurcated from the trial on cence, is an integral part of examine fendant States 1253, reading as follows: held has not fore decide this question in accord with pression in this Circuit. We must there- constitutional procedural protection to examine adverse witnesses extends capital sentencing preme Court and is an issue L.Ed.2d 358 n. meet certain procedural requirements, ty decisions. See Gardner v. been specifically addressed Supreme Court “Although therefore it general Supreme capital sentencing issue, have 9, capital witnesses, Proffitt, yet 393]. 97 S.Ct. held that the capital sentenc- delineated the principles right Court has not Whether the defendants are entitled. Florida, ^[1197] its [Supreme] required to proceedings though recent confront articulated proceedings must 430 U.S. at exact right guilt directly 685 F.2d at death the United Court has has scope or n. 9 ^[349] the de- hearing penal- cross- cross- ruled inno- im- Su- [51 at information posed on the basis of information that by the the unacceptability of the ‘risk that some attempting capital openly tribunal. be sentences in that case address the of ‘secret 305, 96 narrowly S.Ct. at 1206. The preme mation not disclosed to cruel and unusual rights his capital defendant has opportunity to Gardner, however, Woodson North In premised imposing erroneous, attorney Gardner to Court held that .. . been S.Ct. defendant’s viewed, information’; due may v. sentencing judge.’ the accepted presented to at 2991. rebut information that process rebut[1] violated the defendant’s v. reaching death simply prohibits the Florida constitutionally punishment. the Court Carolina, procedural rights principle holding in confidence and freedom from a judge’s penalty, been the Court did not See id. at its decision in misinterpreted, supra, scope of defendant afforded in Gardner emphasized that death sentencing Id. at on reliance, Gardner the Su U.S. 362, 97 be im infor may has use no at or Moreover, 97 S.Ct. at 1205. the Court The focus of the Court’s capital current expressly recognized importance

sentencing decisions has been toward participation by counsel adversarial minimizing the risk arbitrary decision- eliciting debate to the truth and ‘evaluat making. Whereas [Citations ‍‌​‌‌​​‌‌​‌​​‌​​​​‌​​‌​​​​‌​​‌‌​‌​​​​​‌​‌‌​‌‌​​‌​‍omitted.] ing significance ag the relevance and earlier cases had focused on the quantity Id. gravating mitigating’ evidence. of information before the sentencing tri at 97 S.Ct. at 1205. The Supreme bunal, recently the Court has shown emphasis other Court’s in Gardner and greater concern quality such capital on the sentencing reliability cases Florida, information. Gardner v. of the factfinding underlying the decision Thus, S.Ct. 1205. it has impose whether to con recognized the defendant’s interest both vinces us cross-examine presenting favor, evidence Ed Oklahoma, 104, 102 v. adverse witnesses sen dings applies capital 455 U.S. S.Ct. tencing hearings. The (1982); Ohio, Supreme 71 L.Ed.2d 1 v. Lockett supra, opportu and in afforded the has being recognized cross-examination ‘the ever nity explain “greatest legal engine or rebut evidence offered invented ’ Florida, against discovery him. of truth” Gardner California Green, 149, 158, at 1207. Reliability U.S. at 399 U.S. S.Ct. factfinding aspect (1970) 26 L.Ed.2d 489 5 J. (quoting 1940)). has been a cornerstone these decisions. Wigmore, (3d Evidence ed. persons supplying pre- (The presentence report 1. most Since examination. court, long pages were not in Creech sentence information thirteen hear- attachments of through say measuring depth.) “rebut” the device cross- could not 25/s inches in right ‘The of cross-examination is more to call prevented the doctor the defend than a desirable rule of trial ant’s procedure. counsel from conducting effective It in implicit the custodial cross-examination. id. at right of See 699-701 & confrontation, n. 7. Although the court did not helps specifi assure the “accu- cally address whether the defendant racy of the had truth-determining process.” to is, right It constitutional cross-examine indeed, “an essential and fundamen- psychiatrist, it concluded that his tes tal requirement for kind of fair timony, effectively ‘not cross-examined country’s which is this constitutional attorneys,] as carries no goal.” course, [defense right Of to confront whatever,’ reliability surance id. and to cross-examine is not absolute and that its use in and hence cases, may, in appropriate bow to accomo- set principles defendant violated legitimate date other in the interests forth in v. Florida. The Gardner reason process. criminal But its signif- denial or supports ing clearly the view Smith icant calls into question dimunition “ to cross-examine adverse right ‘integrity ultimate of the fact-finding ” capital sentencing applies witnesses process’ [emphasis original] and re- necessary at least where proceedings, quires competing interest be ensure reliability witnesses’ closely examined.’ Chambers v. Missis- [2] (Emphasis supplied.) testimony.” 284, 295, sippi, U.S. S.Ct. is an inte- sentencing procedure Since the (1973) (citations 35 L.Ed.2d 297 trial, part the defendant should gral omitted). participa- to both the entitled in Idaho expert Where witnesses employed, right tion of a and the to confront and is even cross-examination more crucial to This cross examine witnesses. case should Since, ensuring fact-finding. accurate hearing provides be remanded for a in this case ... information submitted constitutionally those fundamental two an expert witness generally consists process mandated elements of due and fair opinions, necessary cross-examination is trial. only knowledge test witness’s numerosity magnitude competence field to which his unpopular makes it Creech’s crimes testimony relates but also to elicit the urge me to any therefore fur- difficult facts on which he relied in forming his delay bringing ther proceedings opinions. conclusion. Neverthe- saga its ultimate we note that Finally, decision of less, I than important think more one the former Fifth Circuit v. Es- Smith judicial proc- case is the of our preservation telle, aff’d, (5th Cir.1979), 602 F.2d 694 ess. 68 L.Ed.2d BISTLINE, J., concurs. (1981), buttresses our conclusion A APPENDIX appellant had a constitutional AMENDMENT’S P. THE EIGHTH Sprehe cross-examine Dr. before the doc- DEATH THAT SEN- PRINCIPLE report determining tor’s could be used EVOLV- SATISFY TENCES MUST Smith, sentence. we reversed OF DECENCY ING STANDARDS that was based on the part MAN RE- OF THE DIGNITY AND psychiatrist of a name testimony whose QUIRES PARTICIPATION JURY had omitted prosecution intentionally IN SENTENCING. CAPITAL list. A primary its witness basis for from of a finality in that case In view of the “awesome was that decision 361 U.S. case,” Singleton, Kinsella capital intent failure disclose its prosecution’s stories, psychiatric newspaper evalu- report presentence numerous contained re- 2. The Creech psychiatrists psy- Oregon oth- and numerous ations doctors ports several from report presentence by persons presented supplied with attach- chologists, a er materials Ohio, including psychiatric evalua- from ments for cross-examination. psychologists, physicians and Ohio tions

381 by bearing reasonably proportionate a rela- is im- crime for which it tionship to the 305, 234, 297, 249 4 S.Ct. L.Ed.2d [80 268] at supra v. 428 U.S. Georgia, Gregg posed. J., (1960) (Harlan, concurring and dissent holding that at 173 S.Ct. 2925]. [96 ing), Supreme repeatedly Court has rec neces- does not for murder of death penalty ognized juries the crucial role play standards, Gregg these sarily violate whether capital determination a defendant that, theme was unmistakable plurality’s merits the death Gregg sentence. v. Geor Amendment, imposition Eighth under 181-82, gia, supra, 428 U.S. at 190-92 [96 must a defendant on penalty the death 2928-2929, 2933-2934]; see, S.Ct. at Dun moral in the responsible find validation Louisiana, 145, 156 can v. 391 U.S. S.Ct. [88 con- community values social 1444, 1451, (involvement 20 L.Ed.2d 491] those medium of An essential him. demns in cases jury capital reflects a “reluctance jury. is the values plenary to entrust powers over ... life [and ... to one or a group of death] support To its conclusion that imposition judges.”25 of the death some circumstances with “evolving could accord standards of That the Eighth Amendment requires at decency,” Gregg plurality to the looked least some jury participation capital sen- two most reliable sources of responsible tencing can best be appreciated by refer- public attitudes and values: legislatures ence to the substantive Eighth Amendment Thus, juries.26 even with respect standards the Court has invoked in holding general question whether the death the death penalty invariably' is comports evolving social moral cruel and punishment. unusual standards, plurality found it necessary rely patterns jury on The behavior. Basically, The Court explained has that a standards, on plurality’s emphasis evolving particular punishment is not cruel un- at 2924-2925], sug id. 172-73 S.Ct. at usual if it [96 satisfies First, two criteria. Eighth gests Amendment principle penalty must accord with contemporary organic, requiring courts to continual moral and social values by reflecting “the ly development refer to the moral of Ameri evolving standards of decency that mark society. can progress rely leg courts cannot of a maturing society.” Gregg v. islatures alone as Georgia, responsible reflectors supra, 428 U.S. at 173 S.Ct. [96 2925], at quoting community values. Dulles, Legislators confront Trop v. 356 U.S. 86, punishment 101 590, capital deter 598, abstractly. They S.Ct. 2 [78 L.Ed.2d 630] (1958) mine whether (plurality opinion). society willing a Second, to have pun- ishment respect permitting capital must law punishment, “the dignity of man” by serving legitimate whether penological society, through the instru goals and Florida, indeed, 25. Dictum in Proffitt post-Proffitt v. majority 428 U.S. in two cases a 2960, 2966, (1976) 252 [96 S.Ct. 49 L.Ed.2d Supreme expressly 913] Court has reserved (plurality opinion), notes that has Ohio, decision on that 637, issue. v. Bell expressly * never stated that the Constitution *, 642 n. S.Ct. [98 2980 n. requires jury sentencing capital cases. Prof- (1978); Ohio, L.Ed.2d Lockett v. 1010] fitt, however, approved capital U.S., 586, 609 n. 16 n. [98 S.Ct. very scheme different from Idaho’s. In con- L.Ed.2d 973]. complete trast exclusion of the Idaho, the Florida scheme entitles the defend- plurality majority 26. The noted advisory jury id., penalty, ant to an verdict on legislatures pen- state had reenacted the death 2965, 2966-2967], at 251-53 S.Ct. at [96 alty decision, after the Court’s 1972 Furman sentencing judge and the must abide Gregg Georgia, 428 U.S. 179-81 [96 mercy recommendation unless “the facts 2909, 2928-2929, (1976) S.Ct. 49 L.Ed.2d 859] suggesting a death sentence ... clear so [are] (plurality opinion), and that since Furman virtually convincing that no reasonable juries, though imposing American State, person could differ.” Tedder v. penalty infrequently, enough had so done often ([Fla.] 1975), quoted So.2d Proffitt suggest categorically disap- did not Florida, U.S., S.Ct., supra, 428 at 249 [96 Id., prove penalty. at 181-82 way Plainly, [96 Proffitt no resolved the 2965]. 2928-2929], capital constitutionality all-judge sentencing; 420, 1759, 1764-1765, 427-28

U.S. S.Ct. [100 (1980) (plurality opinion). 64 L.Ed.2d 398] ment the is jury, carry of out that willing partial legislature Whatever role the can Ohio, 586, law. Lockett v. 438 625 U.S. [98 reflecting public senti- 2954, 2983, play responsible (1978) S.Ct. 57 L.Ed.2d 973] (White, J., the concurring dissenting).27 general validity ment on of the death Moreover, static, and, a statute is public jury penalty, only par- can ensure that a change, may values become a less reliable Eighth ticular death sentence meets this jury. indicator than the of a judgment Amendment the Gregg plu- command. As “ Therefore, juries, unless the two one of stressed, ‘one of the most rality important values, play barometers essential of social any jury perform making functions can capital sentencing, some role in the courts imprisonment ... a selection life [between capi whether confidently cannot determine for a and death defendant convicted in a does continue to punishment tal indeed is capital ... to maintain a link be- case] views.28 comport responsible public with contemporary community tween values and more, Eighth Amendment demands ” penal system.’ Gregg the v. su- Georgia, of however, approval general than social U.S., S.Ct., at 428 181 at pra [96 2929] of permissible as a means penalty the death (plurality opinion), Witherspoon v. quoting penalty Because is punishment. the death Illinois, 391 supra, at 519 n. 15 U.S. S.Ct. [88 pen all other different from profoundly “so 15]; at 1775 n. see Florida, Proffitt v. 428 Ohio, v. 438 at alties,” supra, Lockett U.S. 242, 2960, 252 2966, U.S. S.Ct. 49 [96 the opinion), at (plurality 605 S.Ct. 2965] [98 (1976) L.Ed.2d (plurality opinion). individu 913] Amendment also demands Eighth the of propriety alized consideration testing penalty against death case. Ibid. every capital death sentence Amendment re Eighth second substantive for each defend treating need Given “[t]he man,” “dignity Gregg quirement, case that capital in a ant legitimate peno that one of stated the two the individu uniqueness due the respect was retri logical goals justifying execution Ibid., sentencing schemes al,” capital state Gregg v. 428 Georgia, supra, U.S. bution. sentences that individual death must ensure at Gregg thereby 183 S.Ct. at evolving stan [96 2929]. the moral demands of satisfy principle proper that the in reinforced v. North decency. See Woodson dards of of the death is an essential penalty fliction 280, S.Ct. Carolina, 428 U.S. 303-305 [96 a reflection requiring communal decision 2990-2991, 49 (1976) (plu ly L.Ed.2d 944] “Indeed, values.29 Georgia, responsible 446 of communal Godfrey v. opinion); rality nullify legisla- constitutionality tendency juries of the death about sion 27. The particular generally, that penalty, indicates or of some criminal laws either tive intent represent Ohio, the evo- legislature alone cannot v. U.S. 624-25 Lockett 438 crimes. community mat- in criminal 2954, 2983-2984, sentiment lution L.Ed.2d 57 973] S.Ct. [98 ju- Examples are American J., abundant. concurring dissenting); ters. (1978) (White, liquor vio- regularly refused convict ries Georgia, 433 S.Ct. U.S. [97 Coker Prohibition, during and continue lations J., (1977) (White, joined L.Ed.2d 982] Zеisel, H. The American H. Kalven & refuse. Stevens, Stewart, Blackmun, JJ.); Wood & (1966). survey law Jury, of traffic n. 10 A U.S., supra, at 293 v. North Carolina, son increasing that studies concludes enforcement Stevens, S.Ct., (Stewart, & at Powell 2986] [96 driving changes penalties for drunken [Gregg] Georgia, supra, JJ.); Furman minimize or in such cases so as to behavior S.Ct., U.S., (Stewart, Powell at 181 [96 2928] annul, Ross, increase. The Neutraliza- even Stevens, JJ.); Georgia, supra, 408 Furman v. & Studies, Penalties: Some Traffic tion of Severe (Powell, at 439-40 S.Ct. at [92 2828-2829] 1976). And as senti- Soc.Rev. 10 L. & J., C.J., dissenting, joined by Burger, Black- against rose from the Vietnam War ment JJ.); id., Rehnquist, mun & at 299-300 [92 jury acquittals so did in draft-evasion (Brennan, J.). at 2757-2758] Kritzer, Enforcing Selective Service cases. Violators, 30 Stan. Deterrence of Potential Act: “capital punish- plurality 29.The stressed that 1156 n. 31 L.Rev. society’s expression moral out- ment is an conduct,” particularly rage Indeed, years, offensive Justices last 9 8 of the 28. part of the instinct for joined opinions that retribution “[t]he that look to the have written man, channeling instinct support that of a conclu- nature pattern verdicts in 438 U.S. at 604 S.Ct. at (plurality [98 2964] added). A death opinion) (emphasis may be capital punishment decision is unconstitutional if it is so unre- procedure extreme sanction in cases appropriate it “creates the risk liable community’s belief expression of imposed will be spite certain are themselves so griev crimes call for a less severe factors humanity only ous an affront the at 605 at adequate response may penalty penalty.” of Id. S.Ct. 2965]. [98 id., v. Georgia, death.” at 184 sen- Gregg the has held that death Since Court [96 omitted) at (footnote (emphasis S.Ct. community’s the comport tences must 2930] added). again, Here jury involvement decency and evolving of of sense standards capital sentencing necessary is ensure retribution, legitimate desire for moral its a general matter the death question judges essential whether an is properly reflects the of to society attitude val- reliably can reflect the communal alone a given ward class of crime. But that are the source of constitution- ues plurality day same noted on same capital punishment. of ality Carolina, Woodson v. North supra 428 U.S. definition, juries, judges, not “the By are at 2991], 304 S.Ct. at “the fundamental [96 cross-section the community,” reflecting respect humanity Eighth underlying Missouri, community values. Duren v. 439 Amendment requires ... consideration of 357, 664, 666, 359 U.S. S.Ct. 58 L.Ed.2d the character and record [99 individual aOnly representative jury offender as- par and the circumstances of the 579] “meaningful ticular offense as a sures constitutionally community participa- indis pensable part of the process inflicting tion.” v. Georgia, Ballew 435 235 U.S. (emphasis added).. of death.” 1029, 1036, (1978) S.Ct. 55 L.Ed.2d [98 234] Thus, prevailing a social belief retribu Jurors, (plurality opinion). unlike judges, per tion must justify only general are selected to enhance the likelihood missibility of the death penalty but also the they represent range whole of commu- infliction of the in particular death sentence nity beliefs backgrounds, Taylor v. Lou- regard, cases. jury is indispens isiana, 419 531-33 U.S. S.Ct. [95 able in ensuring society does indeed 698-699, 42 (1975); L.Ed.2d the differ- 690] against seek particular retribution de segments the community ent bring jury fendant: be must choose “[A] jury representative “perspectives val- tween life imprisonment capital punish jury ues influence both deliberation can ment do little more —and must do noth result,” id, at 532 n. 12 at 698 S.Ct. [95 ing express less—than conscience of n. v. Humphrey Cady, See 405 U.S. 12]. community on the question ultimate of life 1048,1052, 504, 509 31 S.Ct. L.Ed.2d [92 394] Illinois, or death.” Witherspoon supra, v. (1972). Moreover the sheer difference in 391 U.S. at 519-20 at S.Ct. [88 1775-1776]. jury panel size between a twelve-member judge a single significantly bear of a validity on the un- decision Q. JUDGES ALONE CANNOT ADE- Eighth Canvassing der the Amendment. QUATELY COMMUNI- REFLECT studies, empirical the United expert States TY IN THE VALUES SENTENC- has concluded that the like- Supreme ING PROCESS lihood that a decision in criminal case “the correctly applies common sense of the between difference “qualitative The community to the facts” increases with greater for a and other calls penalties death sen- Ballew reliability when number decisionmakers. v. Geor- Ohio, supra, v. supra, is Lockett 435 U.S. at 232 imposed.” gia, tence S.Ct. [98 justice (1976) (plurality opinion), quoting the administration of criminal serves L.Ed.2d 859] stability important promoting U.S., purpose S.Ct., Georgia, v. Furman 308 [92 ” Georgia, society governed Gregg J., law’ (Stewart, concurring). at 2761] 2909, 2929, U.S. S.Ct. [96 are bodies. representative “[C]ourts are not to be They designed good reflex obviously Twelve individuals 1035].30 of a democratic is society. judgment Their views prevailing likely reflect more informed, dependa best and therefore most person.31 than one society ble, within narrow limits.” Dennis v. Unit States, engage A need not in questionable ed U.S. [71 speculation community determine what J., (Frankfurter, (1951) 95 L.Ed. 1137] sentiment in a say particular would case. concurring). represent commu Unable to Its very bespeak function is to that commu- sentiment, nity must undertake nity sentiment by exercising judg- its own it. ascertain That a difficult necessarily ment. jury’s response society’s re- task,32 made more even difficult because Illinois, Witherspoon supra, sponse. judges considered in terms —whether at 519-20 S.Ct. at [88 1775-1776]. race, sex, or economic not reflect class —do ... “The is a significant and reliable range backgrounds the wide or beliefs objective index of values be- contemporary the reluctance community.33 within “[T]he cause it is so directly involved,” Gregg in to the sen juries many impose of cases Georgia, supra, 428 at U.S. 181 at S.Ct. [96 well the hu may tence reflect [of death] By contrast, judges cannot them- 2928]. feeling irrevocable mane that most selves speak community for sentiment. If should be reserved for small sanction they are to fulfill the demands of the cases,” Gregg v. Geor number of extreme Eighth evolving Amendment by bringing supra, 428 gia, 182 at U.S. at S.Ct. 2929]. of [96 standards and retri- decency principles of reasons, less case, variety judges appear For a of bution to bear in a capital punishment they only can do so indirectly since to reflect that same reluctance.34 likely empirical presented descriptions with of Ballew also amassed considerable lenient when 30. prove reducing that the number of cases. evidence actual impairs the decisionmakers in a criminal case fairness, accuracy, thoroughness general and consisten- judges in 33. As of 1979 state courts decision, cy generally ranging of the to the detriment jurisdiction trial earned salaries Georgia, $54,205 California, $24,400 defendant. Ballew v. 435 the 223, in Oklahoma to in 1035-1038, 1029, 55 $41,000. 232-39 approximately S.Ct. [98 Nat’l a mean of with (1978) opinion). (plurality Cts., Survey L.Ed.2d 234] 1 for St. Salaries Center Judicial 1979). juris- (Sept. general in As of 1977 these courts, 5,155 jury only percent Significantly, every authorizing 2.5 of the 31. state diction women, capital sentencing appears judges 20 had no in were and states involvement Cook, Gillers, jury persons. supra require at all courts. Women women on these of twelve Tokenism, 22, Judges: at 63 The End of in Women note n. 298. Courts, 84, (Nat’l for St. Cts. 87-88 Center 1978). only appears 2.6 It that as 1977 Judges may theoretically have access 32. judges general percent contact, of the on these community through sentiment social Crockett, were G.W. Number courts black. polls, through as sources edito- as well such Judges 1977) (March Distribution of Black Cook, and rials, journals, newspaper reports. and (unpublished file on with Nat’l Center charts Policy, Opinion 21 Federal Judicial Public and Cts.). Finally, rigorous the educational for St. (1977). Unfortunately, Am.J.Pol.Sci. 576 requirements bar make it for admission the greatly willingness sources overstate the these average attain- that the educational inevitable community impose the of members judges com- will far exceed that of the ment munity specif- specific death on defendants general. in jury reveals crimes. Research on behavior ic substantially jurors when more lenient that report sitting trying through classic shows delib- 34. Kalven and Zeisel’s an actual case and disagree judges juries in a substantial indicate. and than will otherwise erations trials, study Diamond, Peremptory number of cases. In a of 3576 The Effect of Zeisel & jury judge Experi- decision about Challenges Jury reached same Verdict: An Court, only percent a criminal defendant ment in a Federal District 30 Stan.L.Rev. Zeisel, supra (1978) (shadow juries note H. Kalven & H. drawn ran- time. 491 511-12 study penalty, specific peremptory domly subject chal- In their the death 68. judge jury report disa- lenges authors more than real vote far often imposition greed juries; probably about the a death liber- because the defendant’s cases, id., percent hands). To view ty People at 436. who favor in 19 was not their yet way, those cases results another are more the death in the abstract prevent order to

to criminal defendants As a means of reliably reflecting oppression commu- government,” Duncan v. Louisiana, nity sentiment on capital punishment, 391 U.S. [88 bringing lay jurors into the (1968), L.Ed.2d protect and to 491] “ process ‘places against the real society “arbitrary direction of action” the complaint, biased, or governed the hands of the ... and not in eccentric Id., judge. at 156 [88 ” the government.’ Powell, ... S.Ct. at Jury Trial It “reflects a fundamental 1451]. Crimes, 23 Wash. decision <6 Lee L.Rev. about exercise of pow official (1966) De er —a quoting Tocquevilie, reluctance to Democracy powers entrust plenary (Reeve in America over the Tran.1948). Quin- life and liberty of the citizens to tessentially, judge one jury to a “is or to a granted group of judges.” Ibid.35 death, judge person judge’s where one or both recommended first decision whether a jury disagreed percent inspire of the time. lives or more dies far deliberation judge those cases in which either or subsequent than and consideration decisions. penalty, both would voted however, have for the death jurors, gravity For individual percent, judge jury agreed, 40 percent only in 40 they approach capital their decisions in judge would have voted for rarely cases will such affected routiniza- yet penalty, only percent tion. cases would the but not the vote Gillers, supra cited in Florida studies note Thus, juries essentially execution. were 318, report sentencing judges 67-68 n. judges. twice as lenient Ibid. As a significantly impose were more inclined to Report United Nations concludes: juries death than the sen- recommended “[A]mong leading penal the supporters authorities in tences to them. The studies also that the show science, appreci- of abolition judges’ seem decisions to correlate with ably outnumber those who favour the reten- race, sex, background and social of defend- capital punishment. specialists of tion The victim, juries and ant while the showed no sciences, penologists, of the social doctors any such evidence of biases. criminology and writers on social or science are, great majority, in their abolitionists. plurality’s speculation “ju- The 35. Proffitt that supporters capital punishment, apart of lead, sentencing anything, if to dicial should political figures per- from a of number and greater consistency imposition even in the at high office, holding public generally sons are capital punishment, trial of court level since jurists training a and traditional judge experienced sentencing a is more trial judges.” jury than a impose and therefore is better able to Nations, Dept, United of Economic and Social imposed in sentences similar to those Affairs, Capital (ST/SOA/SD/9- Punishment cases,” Florida, analogous supra, Proffitt (1968). 10-64 25, U.S., S.Ct., 2966], at note must, at [96 The reason for these differences lie in the course, be in which of read in the context greater judges depart reluctance of to from probable as a of it was made: statement they perceive what to be the letter of the law. system of Florida in which an adviso- result See, Oklahoma, e.g., Eddings v. 455 U.S. jury may mitigated ry at discre- sentence be 102 S.Ct. 869 L.Ed.2d Kalven [71 1] judge, life tion of the trial or increased from judge and Zeisel discovеred in more than one imprisonment only to death life sen- where a envy jury kind of of “a of to freedom the Id., manifestly tence would be unreasonable. judge a reach decision which he aas could not See, 2965-2966]; at note at 249-50 [96 Zeisel, supra, reach” Kalven & at 428. The Moreover, supra. sug- empirical evidence

judge’s role a strict as enforcer even restricts gests judges that trial are not individual state sentencing his discretion in decisions where likely consistency among sen- to achieve death wholly that discretion would seem to lawful. Gillers, meted across the state. su- tences pra out As one said of “1 draft evasion cases: am Cook, 58-59; supra at note at note conscription. opposed to I also believe that the advan- 623. Rather the state can better take impracti is war Vietnam both immoral tage purported ability judges of ensure of the to My sentencing policies cal. are based consistency capital sentencing, cost to at no long exists, that as fact as law it should be sentencing, by right jury the defendant’s imposed purpose.” to effectuate its intent and relying appeal procedure Cook, on the automatic Sentencing Judges: Behavior Federal sen- which this must review each death Court Draft (1973). Cinn.L.Rev. Cases— involving comparison time, cases study tence to other At the same also Cook’s (unlike or defendants. I.C. 19-2827. judges jurors) similar crimes reveals as individual See, U.S., case, Gregg Georgia, experience given type at 204-06 [96 accrue in a their S.Ct., id., 211-12, 2939-2940]; pat regular at S.Ct. at into [96 settles distinct id., 602-03, (White, J., severity concurring). leniency, terns of so 2942-2943] a of twelve. This has jury been was—with compelling These more concerns are even dissenting opinion well documented in the life in the bal- immediately where stands strength Justice wherein on the Huntley ance. history and he illustrates that precedent who made years jury for over it was

BISTLINE, Justice, dissenting. or life. assertion the decision death His right jury accused to have a that the of an PART I impose the sentence of death flows beyond consciona- the Idaho Constitution is RIGHT TO JURY CONSTITUTIONAL Court, obvi- dispute. majority A ble majority Travesty. my is view of a Such a tenable attack ously unable to mount dissent- opinion which chooses to answer a assertion, elimina- only say ordinary it. In ing ignoring view is a matter mere tion function case it is much a matter of choice pretty legislative policy,” “of view, but contrary disdain comment on a —from digresses into an opinion quickly their point travesty, case it is qualities common of Idaho so where this can exaltation especially this who, their coun- collegial only judges ascertain unlike federal group precedent, saving graces but add apply “that their are terparts, positions realize legislative enactments. A posi- sinecures.” but lifetime anything vulnerability popular tion of emotions the constitu- year necessarily a plus. the deter- tional to have make death, major- mination life and between joined opinion, Having Huntley’s Justice other declares that “At ity contentedly espousing little for further there is reason juries or at have been places other times majority. he laid before the that which had imposing an rule in the death given integral opinion But, having majority read times” in most sentence.” “Other have extensive “conducted Territorial recent times. creation of Since I, cases,” review Idaho murder thorough Crim- in 1863 the 1864 passage review too, appropriate have deemed Act, through continuing Practice inal major- cases in footnote those listed the Union the time of Idaho’s admittance to back to include opinion, gone and I have ity post- when the first in 1890 until 1973 early of those cases survey some my Fur- legislature thought it was Furman Huntley’s Justice wholly substantiate death required man automatic provide ever, prior was it both declaration con- degree first murder every afterward, clearly statehood viction, jury deter- to have and of accused people participated mination. The accused determination. who would determine selection (1869), Walters, People been taken purportedly his fate. That has murder, with murder charged and his convicted the defendant away knowing if it solitary person who, jury, degree. fate falls one first — execution, known, rath- undoubtedly required would were to conviction always question see the back where er of the Court. mercy recommended Notwithstanding the jury’s recommenda- law. tion, the Court followed the mandate of the this, of County, the Jail of Bannock State jury

In convicted 1870 territorial murder, Idaho, ac held until the degree he be there defendant first People A.D., v. Ah cordingly September, he was executed. 28th day (1870). Choy, 1 Idaho 317 In 1874 another the hours of upon day, said between jury P.M., territorial convicted another defendant A.M., nine four o’clock o’clock murder, he, too, degree suffered jail, first within the said some walls of Waters, 1 judgment People death. private place convenient within said (1874). later four years Idaho 560 Three and in the manner County, Bannock degree mur charged defendants with first by made and of this provided Statutes convictions escaped jury der the noose he, case, in such the said Charles State degree People v. Ah of second murder. until Perry, hung be the neck he Hung Ah Chu. Hop, Yung Sing, Pong, dead.’ of Bannock And Coun- Sheriff 1 Idaho 698 Idaho, ty, directed enforce hereby judgment. the execution of this D.W. in reco- legislature the territorial In 1877 Standrod, Judge." law, the statute revised statutory difying as read penalty for murder to declaring the penalty governing In 1911the statute amendment, than other a 1919 it did until changed to murder was degree for first Prison” the “Territorial designation amended read until ás read it continued 1901, in en- Prison.” In instead of “State became now The after Furman. Annotated, following the Idaho Code acting and the imprisonment, or life either death Union, was language admission Had that decision. continued make jury all Prison”—but to “State changed then 1864, with discretion so read in penal- no in the change there ‍‌​‌‌​​‌‌​‌​​‌​​​​‌​​‌​​​​‌​​‌‌​‌​​​​​‌​‌‌​‌‌​​‌​‍was this time have been would not Walters jury, Simeon murder, was which degree ty for too, Gruber, Fred executed. mandatory. death, and it was fate was whose executed, last person no discretion had jury decided territory So, in the transition from murder a verdict of where it did render statehood, had although typewriter verdict Gru- jury’s The degree. the first jury still the pen, then it was replaced ber’s case: Conviction that made the determination. A death. degree murder meant of first empaneled and “We, duly jury, so disposed could circumvent cause, for entitled try the above sworn penalty only by returning verdict say: our verdict Thus, in degree of second murder. guilty defendant, Fred “That we find Perry, (1894), State v. 38 P. 655 Gruber, murder of guilty of the crime of Union, admission following into charged the first infor- jury’s verdict was: mation. “We, the the above entitled

action, find mur- the defendant McAndrew, T.J. Foreman.” degree. der of the first judgment the Court: Beeroft, H.L. Foreman.” defendant, Gruber, “that the said Fred And, statehood, before taken hence Jail County death: Idaho, Kootenai, County of “ whereas, Per- ‘That, the said Charles conveyed from there forthwith and taken the duly convicted of ry, having been Penitentiary to the the of of State State degree; of first of murder the crime Idaho, Ada, in the of State of County “ Idaho, day May, the on 20th ordered, adjudged is therefore ‘It eight A.D. between the hours be Perry that the said Charles decreed in o’clockin the forenoon and two o’clock County taken from this Courtroom “We, the day, jury, the afternoon of said within the duly impanelled and sworn to try the above cause, entitled Penitentiary walls of the said State our say verdict that we find Idaho, defendant, the defendant State said guilty of the crime of murder first Gruber shall the warden of the Fred degree, as charged in the information on Idaho, Penitentiary of the State State herein, file his punishment fix as he, hanged be by the neck until the said imprisonment in the State prison life. dead, Gruber be may Fred shall mercy your Lord have soul.” Stoner, J.A. Foreman.” Redding [Reding], State v. 52 Idaho been un The Gruber execution have 253 (1932). P.2d rate, popular. legislature At the next provide amended statute to “We, the jury, empanelled in the above decide between punishment could cause, defendant, entitled find the Doug- imprisonment.1 death or life The stat las Vlack, Van guilty in the murder unchanged ute until after remained Fur- first degree, as charged in the informa- man, tion, helpful and is note the manner in and fix his punishment at death. the jury continued to administer its McGowen, W.S. Foreman.” parcel as part function Vlack, Van 65 P.2d State v. 57 Idaho the defendant’s to such determination. (1936). be appears Vicente Ramirez the first “We, the entitled Jury in the above degree defendant convicted first murder cause, defendant, Golden, Ralph find given after the alternative jury was guilty of murder of the first degree, between life sentence of death. his we be in- punishment decide case, jurors their language own fixed state imprisonment flicted shall be in the Ramirez, at execution. v. State prison for life. (1921).2 The jury 33 Idaho 199 P. 376 Rose, H. Fay Foreman.” did not do so with his co-defendant whom Golden, State v. 67 Idaho 186 P.2d degree also convicted of first murder. (1947). Hoagland, State reviewed ma- “We, in the above entitled jority’s survey, early tried in 1923. cause, find the defendant William Law- jury’s verdict: first guilty rence Owen of murder of the “We, duly jury, empan- sworn We degree. punishment decide that the cause, elled the above entitled find the to be inflicted shall death. In accordance therewith defendant David L. death. murder in the J.W. Pottenger, Foreman.” information, and fix the degree, Hoagland he was executed. charged action, GUILTY MURDER OF THE FIRST ^[203] “We, the jury in the above entitled D.L. find BUSH, Foreman.” OF (1953). Owen, defendant Robert Clokey P.2d DEGREE, Information, charged Other first murder verdicts after punishment and recommend as therefor 1911 in cases cited in the majority’s review the DEATH PENALTY. are, order, in inverse but chronological order forward: Moulton, Chet Foreman.” 1. The statute as amended in 1911 is set forth in opinion 2. This the same as that cited in opinion Huntley. majority’s Justice survey, Ramirez, State v. 34 Ida- ho 203 P. 279 390 however, of the constitu was unmindful 322, P.2d Clokey, v. 83 Idaho State determination, and right jury to a tional (1961). by presented the Act as passed

“WE, JURY, in the duly impaneled THE general.3 attorney action, find the defendant above-entitled of the 1977 Act the Degree, passage the First Since of Murder of Guilty from im- eight appeals Court has received imprisonment fix the as punishment death sentences. The case now be- posed for life. Prison State us is the second. The first was fore State CAREY, Foreman.” F. JAMES Osborn, (1981), 102 Idaho 631 P.2d 18 v. Gonzales, 438 P.2d v. 92 Idaho State sentence, judge-imposed wherein Osborn’s (1968). Act, and the the 1977 was reversed per as in accord- resentencing remanded for cause “We, Jury above entitled expressed ance with the views case, guilty find the defendant of Murder which I did not opinion opinion- Court’s —an Degree in the charged the First court, Ar- the Honorable join. The district Information. Oliver, con- again refused to flatly thur P. “We further find that the defendant penalty, of a death imposition sider the in the punished by imprisonment shall be out and shortly lay reasons which I shall for life. Penitentiary Idaho State acquiesced The attorney general discuss. challeng- by the district court’s refusal Buckley” James W. it, and in that first ing application v. 506 P.2d 119 Foley, State Act, has been Penalty precedent 1977 Death (1973). desirability strongly suggests set which which pre-Furman placed statute involving pre-Furman Foley, v. State life determination the shoul- upon death or the last murder crime, to have been appears jurors. ders of twelve discretion had the jury where the case or death. imprisonment life between decide Osborn, guilty, after initially pleading intervened, following Furman then that plea, moved the trial court to withdraw as it was to the law returned legislature degree plea and enter mandatory to 1911—a prior time, any murder. His did not at attorney murder. As of first upon conviction appeal, either in the trial court or on some majority opinion, in the out pointed was con- express any thought Osborn were set imposed, but were death sentences determina- stitutionally jury entitled to v. Woodson authority aside and, if then guilt, guilty, tion as to his Carolina, 428 U.S. North [96 his fate. Hence there was no consideration re- legislature The L.Ed.2d The opinions. 944] of that issue Osborn as it was to the law returning by involvement has sponded right jury penal- The amendment. case, the 1911 for the first time in this following been raised death, or, imprisonment views, I Mr. pen my at either and even as counsel for was set ty by Ch. has filed in this Court a motion for as amended Creech 18N004 for life. I.C. § vacating judg- an order the sentence and legislature, Laws 1977. Sess. thought omitting argument tional directed toward 3. oral in this At case we were ad- gen- Thomas, Lynn the solicitor function. In other cases vised the Honorable Solicitor that, Idaho, been adamant until a 1982 consti- eral has General for the State of the 1977 amendment, personal tutional Act was attributable efforts. mandatory not be felony and could was Huntley pointed opinion cases Justice has out in his defendant, without with or purpose clearly, that the statement of but erro- waived Hightower, 101 Idaho neously, legislature misled the into the belief consent. State State’s Davis, presented (1980); that enactment of the bill as P.2d 783 Supreme 1983). mandated United (Idaho States Court. P.2d very I much doubt inten- there herein, ment at the same moving tion, and time whatever “impose any could conditions Art. upon granting parole.” the of a § Court to allow him to withdraw his (since amended). ques- In on the passing guilty plea.4 observed the de- tion the Court presented, Concluding my views on the constitution- governmental power; lineations of ality of present statutory scheme under that, can but under “There be no doubt which Mr. Creech was sentenced Constitution as above cit- and statute without proper regard for the Idaho Consti- ed, may, upon board pardons tution which I, declares in Article Declara- commutation granting pardon, of a or tion of Rights, that right “The by to trial parole, they attach such conditions as see jury shall inviolate, remain (the ...” immoral, fit, long they so are ille- major portion which deals with criminal gal impossible provid- or performance, actions), pause I, I to say that one per- they kept performed ed are to be and or son, likely and most Mr. Creech and his complied during the term for which counsel as interested, others would be prisoner judg- was sentenced by grateful in the extreme were the majority ment of the court. our Under Constitu- to, in their opinion, explain the error tion it is the duty prerogative and of the find in Huntley’s Justice proposition that: legislative department to define crimes “The provisions of the constitution per- and fix maximum and minimum pen- taining to right trial by alty imposed for the commis- apply construed to as it existed sion thereof. It is duty judicial of the date adoption of the constitution.” department try against offenders those and, Justice Huntley laws, conviction, did upon create then advocate proposition, them under the statute. Under the but rather laws simply state, stated it of this there such thing as a is no as an principle well-entrenched our indefinite indeterminate jurisprudence. sentence as is my To under- provided many for in of the states from standing general it is a recognized rule which authorities have been cited all jurisdictions. Attorney General. In this state the sen- not enough persuasion If that were to at tence and judgment of the court must be response majority, least evoke a from the certain, specific, and definite. The board Miles, teaching there is also the of State pardons executive de- belongs (1926) where a 43 Idaho 248 P. state, partment privilege its Court, years a bare 36 after unanimous is that of clem- prerogative granting statehood, stated: clemency, It a board of rather ency. a punitive body. pro- than Instead of well established “The rule is nouncing sentence, im- judgment and of trial secures guaranty punishment, prerogative and posing its common existed under the right as authority is that forgiving offenses at the law statutes in force and territorial out remitting penalties, wiping judg- adoption date of the of our Constitution.” ments and sentences conviction either (citations 248 P. at 442 43 Idaho at part.” (Emphasis added.) in whole or in mooted). Prout, 498-99, In re 12 Idaho 86 P. earlier involved had been proposition Ailshie, opinion by Justice examined in an In the interim Jus- between Prout many (1906) as Idaho’s foremost regarded by (1926), Miles there tice, yet ease, wherein it was contended another in case dons, attorney general as established that the Board in the 1899 Constitu- of Par- (1911), re Dawson, wherein our predecessors on this ^[178] 180, 117 P. 696 guilty plea against already receipt the advice of enter counsel of this motion I have 4. Prior to present- under discussion. To that I will portion comes of this dissent wherein written one ly whereby allowed to turn. procedure Mr. Creech again paused to dwell our crimi- tices at common law and statutes of justice nal was adopted and the Idaho when our constitution system function of citizens of jury approved by the Idaho. In under the Idaho Constitution. It was territorial and in statehood until case, not a Idaho capital felony but a charge of 1911, law, prac- as at the uniform larceny, common to which the pleaded defendant tice was to make death the exclusive guilty days charged, five after he was mandatory specified sentence for certain he whereupon peni- was sentenced to the Carolina, offenses. Woodson v. North tentiary by habeas corpus peti- [428 —wherefrom 2978, 280], L.Ed.2d tion he his sought release on two grounds, [49 Bedau, (1976) The (citing H. Death one of right which was that the trial jury 944] America, 5-6, 15, (rev. in Penalty 27-28 ed. provision in Idaho found Constitution 1967)). A of jury Territory by Idaho precluded jurisdiction the court’s to commit convicting degree of first murder person a him to the on a In penitentiary guilty plea. punishment therefore also determined contention, passing the Court imposed judge’s to be role made these observations: —death. merely judgment, was a pronounce in language “The used sec. 7 of article matter which he had no discretion. Such of the was no Constitution doubt intend- 1864, was the law since and even statutory ed preserve to the citizens the state of cases, legislature non-capital with some the right by jury of trial as it existed “a the court ... to im- placed duty upon law, right under the common and such is pose the punishment prescribed.” R.S. retained in all cases were triable 1877, In (See 18-106. 6306—now I.C. § § by .... jury ‘[Wjherev- at common law 713,260 (1927).) P. 160 Erickson, re Idaho guaranteed er a to this trial is right by practice common-law of followed the qualification without Constitution sentencer giving the the role of jury restriction, it must be re- understood as capital being statutorily jury cases—the tained in all those cases which are triable to determine given power exclusive law, by at common jury with all the be imposed. when the would common-law incidents to a trial so jury seen, 17 of the Idaho As has been Section far can be they regarded at least set forth Criminal Practice Act tending protection ” dissent, that: provided Huntley’s Justice accused.’ Id. at 117 P. at 697 (quoting Cooley, any person in- whom jury before “[T]he Limitations, ed., 453) tried, shall, Constitutional 7th p. if shall be dicted for murder added). (emphasis thereof, des- person find such verdict, it be whether ignate by their The Court in Dawson further elaborated degree; ... murder first or second of the that: murder person Every convicted right every one to have “[T]he death; ev- degree, first shall suffer cause tried or to be tried if ac- himself murder in the person ery convicted cused crime is by jury guaranteed imprisonment suffer second shall degree, power beyond established of the term prison in the territorial Legislature to it.... abridge ‘The trial аnd which years, less than ten by secured to the jury, subject by added.) (Emphasis life.” extended to Constitution, is a trial according law, same, course of common and the before years mere three substance, ap- as that which was in use adopted Idaho Constitution ” when the Constitution was provid- formed.’ the Idaho Revised Statutes proved, ed that: Id. (quoting 117 P. at 698 East

(emphasis Kingston added). Towle, 48 N.H. ^[57] 64) murder in the “Sec. 6563. Every person degree shall guilty of suffer death, guilty of murder clear, then, every person It that the trial by by punishable light prac- must be examined in second imposition penalty, the death prison in the Territorial imprisonment Constitution, preserved the Idaho art. 1 imprisonment years, ten and the less than as readily and also art. § § to life.” may extend Proceedings of by reading confirmed VII, Statutes, Title ch. Idaho Revised the Idaho Constitutional Convention. added). (emphasis § The Proceedings of the Constitutional jury’s the trial function At that same time 7 shed revolving Convention around art. thus: was set out of the fram- further as to the intent insight body A ... is a 3938. “Sec. ers, verity doubt as to the leaving no try ... and determine men sworn Miles, above statements of the Court question a unanimous verdict Prout, proposed by and Dawson. It was fact.” be ren- Claggett Mr. that a verdict could VII, Statutes, Title ch. Revised jurors dered a “in by majority of % of the added.) (Emphasis 3938. § all criminal actions the death except where a question person of fact whether It was a imposed by is law.” Idaho Consti- the first or the was of murder in guilty Proceedings tutional Convention and De- degree. This determination could second bates, p. rejected 151. The his framers it by jury only a could be only be made proposal ultimately adopted provi- a unanimous Since the time by jury. made sion now in force which allows less than created, Territory was it took a unani- only non-felony unanimous verdicts jurors of twelve to determine mous vote cases. person that a to die. reviewing their recorded considera- The Revised Statutes Territo issue, tions of that we today are fortunate between those ry specifically distinguished to have irrefutable evidence those pub- that in which the could exercise his cases leaders, lic whom of were nearly one-half punishment meting discretion out lawyers (Vol. I, practicing Idaho Constitu- which the punishment those in deter Convention, tional p. 160), were acutely a of its jury mined result verdict aware that of guaran- Article I would § specified of for a crime.5 See R.S. tee forever that the legislature could not 18-106, (now I.C. §§ §§ impinge upon right of an accused to amplified by 18-107. R.S. 6307 was R.S. have jury of his fellow make the men 7992.) death penalty Heyburn decision. Mr. said or plea 7992. After a verdict of “Sec. it eloquence with an befitting Thomas where a guilty, discretion conferred Jefferson or a James Madison: court, as to the extent of the upon Chairman, “Mr. I cannot agree court, the oral punishment, upon sug- gentleman regard to the wisdom of of either there are gestion party changing entirely system is as may properly be circumstances government itself, old as that no man aggravation view or taken into either in shall deprived of rights, his of his may, in its mitigation punishment, life, liberty or his except by a unanimous discretion, summarily, hear the same at a verdict of a of his fellow citizens time, such notice to specified who have no interest than other to see it direct.” party the adverse justice is done principle him. This added.) (Emphasis has been deemed so important that at one 1977.) (amended 19-2515 Now I.C. time the demand that pro- man should be practice England, common-law tected revolu- by jury and the practice codified in tionized the civilized It is world.... jurors whether stands be- requiring determine arm of the law that strong strong, between crime tween the weak and the sufficient was committed warrant Code, my reading capital 5. To the 1887 Penal the court discretion rested not with only jury. were the offenses offenses which the but with the “Mr. Out of mere CLAGGETT. poor, oppressed op- rich and between life, human tenderness to and because if necessary .... is still pressor [I]t is once you the death inflicted less than a unanimous say us to rectify error, can never man either but on the verdict shall deprive question of rights. imprisonment you We have the liberty personal his or his imprisonment entire his economy cannot in the interest term of to cor- afford justice speedy in the interest of rect it.” nor —or trial, speaking— speedy properly more added). Id. at 251 (emphasis lessen hair’s breadth the safe- one man every has that guard, insurance “Mr. I say legiti- ... it is AINSLIE will rights or his not be property proceedings mate civil that a clear, him, it away unless taken I three-fourths should find a verdict. do a reasonable doubt beyond believe it will facilitate and dis- litigation him, and that that reasona- belong patch great suits a many quicker deal by a unani- ble doubt is to be determined than by having unanimous verdict. mous verdict.” But liberty when we come to life and added). (emphasis Id. 152-53 citizen, imprison- whether means Although sponsor Claggett, Mr. county jail ment and nine ninety majority proposal rule con- proposed the 5/6 I years penitentiary, say in the we should tended that the of unanimous requirement to pause governed large a extent and be in the law paralyzed verdicts criminal cases by gone the of those have experience who state, the even he power enforcement you before will find that us.... [A]nd unique: cases are recognized capital that to advo- they yet have never undertaken We know “MR. all CLAGGETT.... a cate the doctrine that five-sixths of every benefit from the defendant has a verdict a criminal jury should find in We all know he has a reasonable doubt. oppose I the motion case. Therefore advantage impaneling jury. in the double Shoshone, gentleman made the from there We all know that when has once will body adopt and I this not it.” hope he acquittal a verdict of cannot been Id. 258. no how question again, in matter called Clearly right, safeguard, indeed the the we all wrong may the verdict be. And the to have a of fellow citizens make jury pow- in court has know addition that the in the minds decision of death foremost suspend judgment er to on the verdict in the the when assembled framers conviction, that application after in order the Constitution of year 1899 and drafted governor pardon be made to the may accepted by people Idaho which was the arise case which now and any in the Union. then, is wrong, where the conviction of the imposition From until 1977 where, wrong, punishment if the is has not a func- death in Idaho been penalty severe, ample oppor- so that there too During period judges. tion trial the execution of the tunity given before penalty set the and the legislature time the a of the judgment of the court for review accord- judge judgment merely pronounced pardons. or board of governor case returned a verdict of ingly. jury If the things Now I ask whether all these taken murder, judge was degree guilty first all, together, do not one and constitute pronounce judgment a duty under part too much on the of the advantage penalty. the defendant suffer death defendant, strong arm and whether in v. Wal- nicely People This is state, exemplified is stretched out and ters, judgment the Territorial protect supra, whose where people, function is degree of first system guilty a unani- on the verdict of paralyzed by of this court Judgment murder “The mous verdict. stated why law Nor ask of the is ...” you, will I “Mr. BATTEN. in the for discretion was there room cases? capital in exception make an than, would later require Although perhaps court. the Revised Statutes —other guidelines. provided aggravation- applicability it had no mitigation hearing, there, But even although the legislature degree where the verdict in a first murder did nothing toward providing criteria for case was murder. Ob- juries to consider in deciding between viously procedure would not have with- life sentences sentences, and death scrutiny under stood decisions of United courts of Idaho were not remiss. Supreme which were handed States Time meeting constraints in the rules of down in 1972 and 1977. this Court for issuing opinions death —with A forerunner areas of criminal many distinguished cases in no way law, jury in 1911 the legislature give did run-of-the-mill monetary judgments leeway capital sentencing, some and from small claims an exhaustive prevent court — acted legislature time on until review, but say my person- suffice component part again jury, al knowledge is that judges in Idaho Ramirez, (see Idaho of the court State have properly instructed the An jury. ex- (1921), P. 279 ample which is preserved in our Re- jury, jury, “the in a case triable is as ports by reason of a challenge such in- much a as the part judge. court structions is v. Clokey, supra. The legal Each has certain duties and func- trial court instructed the jury that certain tions, and the combined action of the evidence had been admitted “not for the up merges and the makes purpose of establishing or tending estab- judgment. final action lish guilt or innocence of this defendant imposing ... but is relevant and may be considered merged judgment and became by you only as it may you assist in arriving (Em- part of the decision of the court.” at the punishment be inflicted added.) phasis defendant you should find him guilty of 34 Idaho at 203 P. at 283. murder in the degree.” first The Court became vested with the same discretion used the opportunity Clokey to remind judges had in cases where non-capital the trial cases, bench and bar that in such legislature mandatory had not set a where there is exercisable discretion in sen- So, penalty. and as has been now well tencing, evidence should be admitted in mit- out, pointed jury, from and after 1911 the igation and aggravation solely going to — upon convicting degree a defendant of first the determination punishment: a imposing murder would decide between “The first paragraph of said instruction of death or a sentence of life im- informs the jury that in the event with, away early Done at that prisonment. find the defendant guilty murder of time, then, mandatory was the death sen- the first degree they may then determine fifty years tence which would over later in whether the penalty imposed to be shall century the seventh decade of the twentieth be death or confinement in the state peni- be held offensive as violative of the Consti- tentiary for life. Such instruction inis tution of the United States. conformity with I.C. 18—4004. in- Said § Becoming then applicable pro- were those struction then calls attention to the evi- visions enacted in 1877 and now codified as dence which was adduced during the trial 19-2515(a), which, I.C. prior to 1977 read § regarding background and history of exactly as it years, had read for 110 the defendant experiences and his for the provided presentation of evidence on behavior in matters not related to the circumstances both or mitigation aggrava- alleged crime for which he being tion the punishment. In this manner the tried. procedure governing penal- Idaho the death had all of the features which ty requisite was intro- “In connection evidence Supreme appellant Court of the United States and on behalf duced and date of showing appellant’s place taken into view either in aggravation birth; that his father died when he was mitigation or of the punishment, may, old; years five and seven discretion, between in its hear the same sum- home; boy mistreated when a at he was time, at marily, specified of first that in 1929 he found such notice to the adverse party as it there- degree robbery punishment and as may direct.’ I.C. 19-2515. for served three and seven months years 19-2516 that the hear- requires “I.C. § Quentin during years prison; in San be had in ing open court. at or five that followed he worked four considered the lan- “This Court has that he occupations; trades or different 19-2515 and has guage used in I.C. § injury while suffered serious accidental stated that: mines; that he had been working in the “ driving of reckless and drunken сonvicted to debate as may open ‘It driving past years two during men- whether “circumstances” charge pending that he had a hit and run 19-2515,1.C., particu- refer tioned in § trial; time of this that his son at surrounding the circumstances larly to involved in trouble and was com- became tending to of the crime and commission Training in the Industrial School mitted character of aggravate mitigate or Idaho; the son Anthony, that after St. involved, whether such or the conduct his appellant to the home returned convict, include also circumstances fight, which got shortly son into after individual, would himself, as an wife, Betty Clokey, obtained di- his up- age, background, include his vorce. any other bringing and environment is unrelated to the evidence to a determination “Such appropriate matter evi- here and it is such charged crime We think culpability. the court facts that biographical dence of given should be the statute No. 16. It is to in said instruction refers in a particularly interpretation, broader regarding background evidence State, Ariz. James capital case. and behavior of experiences history, Owen, 73 P.2d 1081.’ State consider jury may which the appellant 203, 207. 394, 253 P.2d arriving them in only as it assist determined has also “This Court in the event punishment punish- fix the jury may cases where guilty of murder finds defendant under opportunity, have ment it should degree. instructions, circum- to consider proper the permitting “One of the reasons for of mitigation or aggravation stances in of biographical introduction of evidence punishment. the facts where such facts are unrelated to Owens, this Court said: supra, In v. State charged recog- the offense is that the law “ nizes that conduct previous good or bad the law ‘It, therefore, that appears fixing punish- should be considered in penalty, the fixing that contemplates the provides ment for crime. Our statute par- either court, requested the when to con- discretionary power court consider hear and and should ty, may circumstances or aggravation sider mitiga- or aggravation circumstances mitigation punishment of as follows: fol- logically It punishment. tion “ to for the court proper if it is lows that guilty, verdict of plea ‘After a or evidence, jury the such hear and consider upon is conferred a discretion where punish- fix the upon to where it is called pun- the the extent of the court as to to con- ment, opportunity the should have ishment, court, sug- the oral upon the course, to a subject, of proof, such that there sider party of either gestion con- jury’s the limiting may properly proper which be instruction circumstances “ plea or verdict guilty, ‘After a of to the deter- such evidence sideration of upon where a is conferred discretion cautioning punishment, mination of pun- the court as to the extent of the in deter- that it is to be considered innocence, mining guilt court, or ishment, sug- or be the oral upon allowed the to influence the determination that of either there are gestion party ” question.’ may which be properly circumstances aggravation taken view into either 327-28, 364 at Clokey, State may, or mitigation punishment, P.2d at 162-63. discretion, the same sum- in its hear Owen, supra, quoted time, upon specified marily, at above excerpt the trial court Clokey, it party such to the adverse notice objection sustained the State’s to the de- 19-2515, may direct.’ I.C. § fendant’s evidence offered “to show facts 19-2516,1.C., requires the “And § up- and circumstances of age, defendant’s open It be hearing be had court. bringing and for the purpose environment to as to the open debate whether ‘circum- mitigating punishment.” 19-2515, I.C., stances’ mentioned in re- § 401, 253 207. ruling P.2d at The of the trial particularly fer sur- circumstances error, court was held be but on four- rounding the the commission of crime Court, one decision new trial was tending aggravate the mitigate or ordered; instead, aby split three-two involved, character or conduct Court, whiсh held there had been a whether also such circumstances include guilt, fair trial on the issue of the death convict, himself, individual, were commut- sentences background, would include his 420- ed to life Idaho at imprisonment. age, upbringing environment or 21, 253 P.2d at 219-20. The Owen court’s appropriate other matter to a determina- opinion should have made clear to the degree tion of the We culpability. charges bench and bar that think that the statute should be given encompass, interpretation, murder broader in a particularly would State, time, capital same case. James v. 53 Ariz. guilt trial of the issue and a 84 P.2d 1081. trial of the punishment issue: therefore, “It, law appears that “However, the law recognize does fixing contemplates penalty, previous good or bad conduct should be court, par- either requested when punishment considered in fixing the should may and hear consider ty, crime. is the underlying principle Such in aggravation mitiga- circumstances of the persistent statute. 19- violator It fol- punishment. logically tion long recog- I.C. courts have proper lows that if it court nized that the first offender should evidence, hear and such consider accorded more lenient treatment than fix the punish- where it is called habitual criminal. In addition to consid- ment, con- opportunity should have erations of humanity, justice mercy, course, to a proof, subject, sider such object tois encourage foster con- proper limiting jury’s instruction of rehabilitation one who has for first to the deter- sideration of such evidence error, time fallen into and whose charac- cautioning and mination of punishment, ter for crime has not become fixed. in not to be considered deter- that O’Dell, v. State 225 P.2d innocence, or be allowed mining guilt or 1020. that influence determination of to offer of proof of behalf question. the court provides “Our statute also Owen is as follows: defendant to cir- discretionary power with consider “ de- aggravation mitigation cumstances in ‘Mr. Doane: Comes now the and punishment, as follows: William Lawrence Owen of fendant ’ exploits, engagements, of present military witness by to prove offers medals, William Lawrence a natural and would have that defendant wounds Tannover, Califor- Owen was born in the de- prejudice to tendency family nia, in a on October of the favor, and nature fendant’s father, and consisting his mother of one. that was that suggest would offer here brother; his that sister and one twin However, we think purpose. its perhaps father’s was that occupation of a rail- military service of a statement briefer foreman; road that his nationality was part background a of a proper would be Indian; Welsh and half-breed American sketch. his that mother was a full-blooded general practice, “It is the at least in Wylacki American Indian tribe important trials, criminal to permit California; that year northern in the testify generally witness to and briefly 1917 when the defendant was of to background, giving his such facts as died; birth, six his mother relation- age years place family date and ship occupation, and to better enable the the defendant had no real life in home appraise general to character of term, meaning and ordinary witness. Each the defendants was lived from time to time with his siter a witness in his own behalf and should relatives; other that he completed and permitted testify have been to such schooling his formal at the four- age of general capacity in his biographical facts proceeded teen and thereupon pro- witness, if for purpose. no other himself, his major vide for to the permitted testify only Owen was occupation was that of deck boy on his was place Hastings date and birth. vessel, sailing upon which he vessel permitted testify of his to the date served two and a half to three birth, years that in 1932 he was ten when years; experience that since that at sea died, moth- age his father and that his foundary defendant learned mould- er remarried. should have had The court his ing as trade and has followed admitted the evidence offered Owen time, trade just ever since of a anything like character which prior coming his State have introduce. desired to Hastings Idaho, two approximately weeks before C.J., Witnesses, 919. September the date of was so offers, ex- “However, were since the engaged occupation.’ in his punish- mitigation limited pressly guilt “The offer made defendant Has- ment, the question and since can doubt, the error his and since tings lengthy consists of a recital of free from aby commutation expunged military service in the United States require sentence, hold that it does we en- commencing voluntary with his Army judgment.” reversal of the 9, 1940, ending with July listment 1945. It discharge July, 402-04, contains his Owen, Idaho at State peri- of the different detailed statement 207-09. P.2d at service, places engagements ods and for at clear then, is, abundantly It time, participated, he or unit which his by as documented thirty years, least of wounds suffered and place manner Owen, supra, there was conferred, and also as to of decorations comported nearly very in Idaho scheme upon citations conferred decorations and States United requirements with the regiment, battalion division require 1970’s would Supreme Except military he which served. Constitu- United States as mandated record, evidence age, he offered no as to mandato- tion. The environment, upbringing, hearing jury, ry, but left the aggravation, mitigation a detailed statement or not admitted. Such in evidence plea the when a defendant enters a inflicting guilty of to discretionary choice between charge An of first degree murder. Arnold imprisonment. or life death the lacking require person was had the misfortune to in first probably element juries to the instruction specific plea ment of a Idaho to ever enter a of to first murder, circumstanc defining aggravating and, Idaho doesn’t degree although ap- of it es, one of which of or more the existence in Ar- pear opinion, the Court’s four-to-one of imposition and dictate the justify would be a black also to nold had misfortune the requirement death Ar- with murder. charged man first requisite writing out in jury set study by under recently nold’s case came factor(s) proven beyond a rea aggravating students, fifty of law approximately class other than respect, sonable doubt —in which in year, most of them their third a bifurcation of trials with the second reviewing same time were another being hinge there stage upon follow era, case namely more famous of that Pow- of de stage in the first a conviction Alabama, ell v. S.Ct. murder, the was much procedure Idaho gree (1932). L.Ed. 158 person in class Every Missouri, Bulling as outlined in only like that in of opinion was that Arnold was not Missouri, decided, 451 U.S. 430 wrongly tragedy ton but a in the histo- [101 of ry jurisprudence L.Ed.2d Idaho 270] —not thought that Arnold wasn’t but on guilty, When, legislature (apparently the misfeasance of the criminal justice sys- acting at attorney behest Idaho’s point tem. The main concern Ar- general, as was for certain the situation that, nold is being indigent whom 1977) mandatory returned to the death sen- appointed, fearing counsel was to place tence, although the jury was indeed life in his the hands of a who would jury prior sentencer even as it was to the 1911 decide if his fate he went to trial on the amendment which allowed for the exercise innocence, guilt issue which was discretion, a step in the wrong taken jury the advice of counsel that only could direction insofar as was concerned the man- law, sentence him to death under he Idaho Supreme date Court United pleaded guilty by judge and was sen- Then, States. when the legislature passed days tenced to death four later. The facts Act, provisions the sweeping of the 1977 circumstances, succinctly laid out in the came although meeting it closе to the re- dissenting of Justice William A. opinion Woodson, quirements misperceived it Lee, are: Woodson’s content extent “The affidavit of appellant, which is not believed jury itself behooved abolish the facts, principal controverted as to the (as function evidenced Statement states that following prior his arrest and Purpose opinion set out in the of Justice his plea arraignment he was taken Huntley) which is our mandated jail sheriff from the where he was Constitution, guaranteeing that the being trial, held awaiting into coun- trial shall remain inviolate. try mob, and was seized aby blindfolded Had the majority of the engaged after hanged, which he was let down any meaningful review of the history of and required by the mob to informa- give Idaho, times,” “at other tion about the alleged commission of the while it would be pressed hard to affirma- alleged crime and the whereabouts tively show that until Furman the accomplice, the nature of a confession Idaho was not in fact the sentencer in near- guilt; he brought when be- cases, ly capital all it could point fore the trial court and stated that he Arnold, (1924), P. 748 was without means with to employ authority for a substitute represent himself counsel to him the court ap- so, court sentencer in place pointed counsel to do and such counsel just

advised him that sentiment in the ted to the bar public month or so before— against was so him that community high travesty) another was not entitled to with if plea guilty he entered a of not guilty plea draw his and enter a plea of not likely stood trial he would more than be guilty. Regarding the latter use the Court given penalty, the death but that if he was content to assume that the lower court plea guilty judge entered a of would denying “In the motion . . . evidently con authority impose not have the death that, upon showing made, cluded it did him; penalty upon and that when he appear that the appellant had entered a a plea guilty entered did ask plea guilty ignorance rights, his or him if he realized that the death sentence he because had been misled erroneous might pronounced against him on such advice of counsel.” 39 Idaho at 229 P. plea and that frightened he was so he did at 752. not answer but relied upon the advice of As to authority of the judge to im- counsel which the state had furnished sentence, pose the death which concerning him, and believed that the confession Idaho, precedent issue there was no which the mob had extorted from him appearing to be the first such case where an trial, could be used if he stood and so pleaded guilty accused to murder plea stand, allowed the guilty but degree, first 39 Idaho at 229 P. at that had he believed the judge had au- upon propositions relied two thority to sentence him to death which were uphold validity said of a plea of guilty he would not have entered judge-imposed death sentence: plea. such the court duty of (1) being It “The plea on the guilty was entered is a where there judgment, pronounce 11th September, judg- and the murder, “the degree to first plea guilty ment of the court that should appellant at 597 so.” 39 Idaho must do [229 court suffer the was entered on Ramirez, v. 748], citing P. State September the 15th of thereafter. Upon 279], supra, State 203 P. [623, securing appellant, additional counsel 314], P. [405, 228 Hoagland, [39] 8,1923, judgment October moved that the two cases also mentioning supra, permitted be vacated and that he be California. plea guilty withdraw his and enter a 9024, Compiled guilty, (2) of not which motion requirement was de- The plea Statutes, “Upon provided Arnold, nied.” State v. 39 Idaho [589] distinguished of a crime Lee, Justice, plea (1924), P. [229 748] must be- degrees, the court divided into dissenting. sentence, de- determine the fore passing Arnold, 604-05, 39 Idaho at 595, 229 P. at 750. 39 Idaho at gree.” P. at 753. unten- ground absolutely The second The four member majority, not only up majority places In two the Arnold able. held the trial judge’s ruling that he could pleaded guilty Arnold had recognized that impose the sentence upon plea of guilty to degree. long first So to murder murder, first degree but also upheld the stand, plea was allowed ruling Arnold, below that plight whose had been determined. already of the crime had attracted the attention of illustrious counsel (the of experience6 appointed attorney who on unsound is likewise ground pleaded had Arnold guilty had been admit cases the Idaho footing. Following Arnold attorneys awry contentions, namely 6. Two of the who volunteered their turned their the Hon- services on behalf Noah Arnold would them- orable E.B. Smith and William the Honorable Supreme Morgan. M. selves later serve on the Court which death was not shown to be the result of replete expressions recognizing with that the on the jury degree any prejudice part any must on a first murder bias juror conviction one of two available sen- and their voir dire fails impose examination tences, imposition objection of a life term or to disclose to their imposi- proper respect.” tion of death. The word as used in in this “may” qualifications Compiled prior Statutes which to 1973 v. Hoagland, State 39 Idaho at 228 P. same, 18-4004, continued read the I.C. § at 319. case, other always than for Arnold’s has what this Exactly passage had to do with been understood to mean that instead of an Hoagland’s is not at all appeal understood. judgment automatic death on conviction of “Appellant suggests jury that the fixes the murder, first degree following the 1911 punishment.” is not and does Such amendment, jury while it may give still And, purport assignment to be an of error. the death penalty, may give also instead the jury punishment. did fix the Anything Hence, term of life imprisonment. entirely found in that entire paragraph ostensibly legal without foundation was the Arnold dictum, and, one pure might surmise in Court’s statement that “The only effect of being view of the two cases under consider- Compiled that, Statute where § time, ation at the same with opin- Arnold’s there is a jury trial on a plea guilty, shortly ion falling upon heels of the the jury may decide which punishment shall case, opinion Hoagland’s in perhaps gratu- ease, inflicted. Even in such if the jury Hoagland itous statement to be used does not decide the penalty, the court must bootstrapping for an position do so.” untenable Such statements were made clearly Court was taking Arnold. I see no other contravention of the Idaho Constitution reason whatever cases, paragraph which in murder to the exclusion of Hoagland. It never law, was the and it all other crimes where the death penalty is never became the law. But in it not a Arnold possibility, leaves death sentencing law, was claimed to be the to the great for a jury determination. Reliance on detriment of Noah my Arnold. It is under- State v. Hoagland, supra, and State v. Ra- standing that days those pre- the Court mirez, supra, was wholly misplaced. Both pared its own headnotes. Something is to were murder informations be said that, for the fact in headnoting an which were tried to a jury, and in both opinion headnotes, with fourteen the above instances, as was constitutionally required, excerpted paragraph page 420 P. [228 the respective juries imposed the sentences given no mention whatever. Nor 314] of death. In Hoagland, which was decided does that curious statement ever appear to just days Arnold, before there were some have been ever relied upon other than in issues of magnitude, but no discernible issue State v. Arnold. as to the right of a defendant to have a sentence of death imposed upon him aby Ramirez, 33 Idaho 803 P. [199 jury, only a jury. The Hoagland 376], supra, only issue involving Com- Court’s total discussion of Compiled Statute piled Statute 8212 revolved around an § 8212 is this: § appeal contention that the death penalty jury fixes suggests that “Appellant judgment could not be carried out because the provisions Under punishment. the jury had returned a verdict fixing the C.S., be observed might sec. punishment execution, which the Court jury may provides this section disposed of by saying that “The verdict of inflicted, to be punishment decide however, the jury, was not uncertain.” If imprisonment. life death or whether Arnold, supra, The Court in punishment fails to fix jury Ra- improperly relying upon Hoagland and the court. The

duty then devolves mirez, contrary and rendered a decision punishment fixing of except taken lawfully mandate of Art. 1 of our Idaho Neither can be by law. That prescribed Constitution. Better it should have heeded the mode in proceedings essential the words of A. Lee who the law makes Justice William liberty of life or involving deprivation wrote: or affected dispensed cannot be “The of those accused of crime to accused; less much the consent extends to the guilty as well failure, and in when on trial mere as innocent, jurisdic- and in some object to meth- custody, to unauthorized tions human life by cannot be taken sanc- is great punishment ods. The end of tion of law without the verdict of a jury. of the of atonement the offense expiation In states not having such a I provision committed, prevention but the of future think the instances are comparatively kind. 4 Bl. Com. offenses the same rare where upon a plea of guilty the 11.’ death has been inflicted. It was “I that the infor- recently opinion am also stated credible authority fatally mation in this is defective in that in one case jurisdictions, of the older C.S., with sec. comply does not more than 300 pleas of guilty of murder as and fails to be direct certain entered, only person one was executed Appellant’s charged. the offense upon such plea, a indicating reluc- say counsel to find unable any tance courts to impose penal- precedent or that sustains the authority ty except upon the verdict of a guilty by information, and I sufficiency of this jury. think can It is beside the none be found. application plea “An to withdraw appellant question say that because in a guilty capital case should be allowed charged with being understands he soon after is made application where such is therefore suf- murder information it fur- plea, and where entry ficient within requirements of guilt confession appears ther that a law. He understood the nature of the and the unlawful means by was obtained charge being when he was hanged made in belief guilty has been plea of mob, but did obviate the necessi- be used would such confession ty filing charge required formal trial, and if he stood the accused against law, in the trial informa- court. The circumstances facts and all the other tion itself a sufficient conclusive plea guilty such as induce were this has answer to claim that been have been not otherwise might done. harmony nearly in is more made. This of the law that policy the humane any question aside from “Entirely life will not be taken human be there should guilt appellant of this the usual unless all of crime commission or approving the courts appearance no with which safeguards ordinary some countenancing any degree have person an accused law surrounds plea to which this proceedings resorted with. scrupulously complied been I think obtained. probably court, “The United supreme States may be its to allow withdrawal a refusal Harlan, in speaking through Mr. Justice condonation of as a reasonably construed Utah, Hopt Sup.Ct. language such unlawful acts. life, says 28 L.Ed. said: ‘The natural Nebraska, Reynolds supreme court of Blackstone, disposed of legally ‘cannot seems State, N.W. 58 Neb. neitherby destroyed by individual to the situa- appropriate to me peculiarly himself other of his person by any nor here, it is said: tion wherein creatures, merely upon fellow their own “ ‘It is doubt- suggested, has been public authority.’ 1 Bl. Com. 133. The true, “outraged jus- less that in this case liberty. has an interest in his life and tice has laid her avenging lash trial; on the is, “Trial means a fair back of one who honestly deserves the legal rights, during proceed- accused’s scourge,” but we had, cannot for that reason ings must be and re- safeguarded alone affirm the judgment. The jurisdic- spected, not alone in the observance of tion of the courts is not law, co-ordinate with the naked forms of but in the recog- ” that of the mob.’ (Emphasis added.) nition just application of the princi- ples applicable to the case. Until such Arnold, 605-607, State v. 229 P. time as an accused has been so tried and 753-54. found he guilty, cannot be legally con- victed. later, Thirty years thirty years and now

ago, Justice Keeton wrote simply but with equal eloquence, and with a firmness of important “It is far more society mind, that the accuseds in Idaho must have accord a defendant in a criminal action all of their rights justice if the criminal fair trial than he forfeit his life in expia- system as envisioned the by founders of the of the tion crime. federal and state constitutions is to survive: law and which. procedure “The rules of

“The real is whether question presented are, apply appellants and should or been guilt not the of the has appellants be, and by yardstick measured the same by established in the manner and exactly apply the same standards as to all law, procedure provided long recog- by persons; determining other and in established, nized expe- and and based on appellants’ measure rights, necessarily we rience and reasoning. sound rights and determine the of all others “We should never fact sight lose of the who might similarly ‍‌​‌‌​​‌‌​‌​​‌​​​​‌​​‌​​​​‌​​‌‌​‌​​​​​‌​‌‌​‌‌​​‌​‍be situated. A fair guilt or innocence of appellants protects trial for those accused of crime and the questions crime the liberties of all. the first by instance to be determined jury. method, inquiry Our concerns the means procedure by which guilt “If a person wrongly in a civil matter is was established and punishment imposed. deprived property, of his or a in a person “If appellants convicted, were proceedings wrongly criminal convicted might have been convicted, and the death crime, might possi- of a less serious it

penalty imposed, because of errors in the rectify the way partially ble in some proceedings taken against them, then it imposed the sentence wrong done. Were must be apparent to all that every other executed, regardless in this proceeding person similarly situated placed be, might how it no rectification wrong trial would be in exactly the posi- same impossible could ever be made. It is tion; and the rules of law procedure dead.” call back the must, adhered to here of necessity, be Owen, State v. 425-430, 73 Idaho at applicable to all other persons. P.2d at 223-26. “Under our rules of law procedure, recognized well I have been established, always impressed and remain before a person’s liberty taken, or life the views of Justice can be it is Lee and Justice necessary that he first be tried in a Keeton. There is far more at stake today court competent jurisdiction, than the life of Although before an im- Thomas Creech. partial jury. When majority today such a can in con- impan- apparent eled, is the exclusive science restrict their review of the judge history facts —and in particular of death in Idaho casual proceeding, may, fit, if it sees places determine observation that “At other or at oth- punish- ment to be imposed. juries given integral have been er times possible I it is equally do. believe sentence,” I sub- imposing

role in the death in error in their today’s majority bemay Huntley, of Justice the views mit sentencing understanding. I am sure adopts which he meaning his own and those agony spirit judge here suffered an opinion, his his appendix own in greater than that Mr. Justice much that, historically abundantly make it clear This had to face Judge Blackmun. need colonies since time when the thirteen sanc- the human rather than decide English rule and English broke free of while tity and solitude of his chambers the Constitu- judges, and thereafter drafted principle. an abstract considering justice tion has been the backbone his judge heavy shouldered burden States, people the American these United I think this Court should affirm part most large have far and for the decision, leaving the United States Su- to a restricted death desire, Court, if preme they so the option peers. accused’s Phillip the fate of Lewis deciding It is equally beyond clear and refute at 775 P.2d Lindquist.” [589 101]. Justice in his Huntley entirely correct assertion that the Constitution of requires re- Idaho now and forever has Although Lindquist majority opinion

quired jurors it be not a twelve authored by Justice Bakes readily recog single who impose will in Idaho nized as a matter of law that then Idaho’s of death. existing statutes were invalid “ in light of Woodson v. North Carolina, 428 280, 96 S.Ct. 49 944 L.Ed.2d

H. (1976) which held unconstitutional a North Carolina mandatory statute 1977 THE OF UNCONSTITUTIONALITY virtually identical to the Idaho statute...” APPLIED BEING AS ACT 99 Idaho at P.2d the Lind quist dissent set forth in detail the facts of au today, delivered opinion The Court’s Lindquist’s crime. then, Those facts were com and which Shepard, Justice thored by and remain, unpalatable, but cannot affect mem the Court’s majority of mands a bare obligation of an Idaho court to adhere of his views reminiscent is bership to the Constitution of the United States and in opinion dissenting were forth set apply its precepts as Supreme P.2d Lindquist, State v. the United interprets States applies wherein, (1979) his view declaring that Constitution. Admittedly, to have sentence, he affirm a death concluded: joined the Lindquist and Creech7 execution bandwagons met large our would have respect deference “With all spread public favor. four af Today, years of the United the Bench on brethern ter Lindquist, I can Creech and that same Court, regret that Creech I Supreme States again said before Court on review of have they what understand neither imposition again of a death sentence. Once aas now stand court, they where as a popular decision would be affirm that going bemay they court or where death sentence. Of this there can be no capi- involving law area important doubt. I Even was before sentence penalty. imposed the death tal cases upon court, by Creech the district the Boise interpretation wrong my well be Statesman, will far they Idaho’s newspaper what have said what in Creech defendant The time same companion decided A case 7. murderer, as multiple amoral to be an its shown simply followed Lindquist and which Lindquist. unpopular defendant equally an Creech, P.2d holding, circulation, Sunday its edition lead article authored his fate and carried a largest managing both editorialized its editor: September IdahoSTATESMAN

Editorials

for Creech Execution people their society A crimes leave few no choice but to kill them its own Eugene protection. Thomas Creech has murders, who been convicted of five one those people. He should sentenced to death for murders, the most recent of his May slaying Penitentiary fellow Idaho inmate David Jensen. Longtime this editorial page readers will recognize that this stance is a turnaround for change position, The The good Statesman. taken with a soul-searching, deal of reflects membership changes in on the editorial board changes and concurrent beliefs of some (For explanation of why position members. changed, see the Dear Reader opposite page.) column on the general philosophical position in favor of the death is based the belief itself, society protect must and that in an imperfect way protect world there is no dangerous so against people some and so except irredeemable to end their lives. Creech is example proves point. was sentenced to In Creech death for the 1974 Donnelly. murders two men near That was reduced two imprisonment terms of Supreme life when the Idaho mandatory Court the state’s 1973 penalty declared death law unconstitutional. good was a It Supreme The court’s decision one. ruling followed a U.S. mandatory penalties death arbitrary capricious they judges because do not allow mitigating factors consider in cases. The Idaho law was rewritten 1977 include a list of guide sentencing factors and meet requirements the constitutional laid down in the U.S. Supreme Court decision. pleaded guilty place Creech to another murder that took this one the death Portland man. shooting again escaped of a Creech penalty. Oregon’s the death capital punishment law also had been declared unconstitutional. Friday, appeals upheld state court first-degree On a California Creech’s murder conviction slaying crime, others, 1980 for the of Sacramento preceded man. That like the death-penalty law ruling the state in effect at the time was unconstitutional. Then, May, beat Jensen Creech to death flashlight last with sock full of batteries while together during period. incarcerated the two inmates were an exercise citizen; age jail 23 he was no model had been in and out of Jensen on theft convictions. Still, Oregon protection. And if he deserved Idaho had had viable death laws in murders, might Creech’s earlier protected. might time of Jensen have been force at the He today. be alive wayward was a young Jensen but unviolent man never By who should have all accounts Creech, someone up implicated like who been with had in three earlier attacks been locked argue mistake, But prison the blame. have to bear For authorities jail inmates. prisons improving parole systems negates administration of our the need for the ignore reality. is to It is the nature of institutions death that mistakes are made. possibility steps If be taken end that mistakes can will result in harm to members steps society, Obviously, those must be taken. step then there is at least one such put to —to beyond proved have all they those who reasonable doubt that are a threat to life anyone with whom come contact. responsibility. Capital step punishment a terrible involves must be used To take every Yet, sparingly effort to be fair to the convicted society murderer. if is to Creech, against absolutely people the likes of Thomas then protect such must die. itself Boise, STATESMAN, Sunday, September 20,

THE IDAHO Why The Statesman now favors the death

penalty — By SANDEEN out a type ROD of killing murder for which — Managing applied editor is penalty plan death don’t get The board caught. also reasoned that oppose support capital punishment To because murders passion, most are crimes of requires examination one’s deepest an capital punishment doesn’t serve as a convictions. killings Those are committed deterrent. in a The with Statesman So it was editorial fit anger. usually Their victims are vote, In week. a 5-A board last board acquaintances or relatives. penalty, death endorsed the reversal of a Those opposed position who the editorial position. longstanding strong arguments, made too. The catalyst for switch was E. Thomas quality puts One distinctive America Creech, has been convicted of who five above other nations many is the value it puts murders, of them in Idaho. His three latest life, they on Salvador, human said. In El victim, inmate at a fellow countries, many Iran and other the disre- Penitentiary, was beaten to death with a gard appalling. for human life is For flashlight batteries. sock filled purposefully Americans to kill a human Creech, killing inmate, admitted being, what circumstances, no matter Jensen, pleaded guilty David last month life, all erodes the value of human opponents time, first-degree murder. At that he argued. he persons told several wanted to be minority The also asserted that thе real executed. penalty revenge. motive for the death is As Idaho, that means death lethal many supporters of the will injection. director of The Corrections admit, capital punishment expression is an deadly selects substance. It is adminis- society’s by killing wrath murder its control tered remote while the con- murderers. lies strapped to a person demned stretcher. subject The of the death came opposed The this form of Statesman after before board Creech killed Jensen. punishment paraphrase in 1978. “To Ger- controversy Sensing opinion, and divided Stein, murder,” murder murder is trude agreed board to come members to grips just said. “Execution is editorial individually with the issue and debate it pretty it.” name for later, openly weeks near two time later, years But three as an editorial in in court. Creech is due back His pre- says, today’s paper The Statesman investigation is Friday. due endorsing penalty. the death preparation, With the debate was The was made after the decision issue was gave quick. Everyone opinion. meeting. Proponents a board debated at readers deserved agreed Members penalty is protect said the death needed to gravity explanation because society. people, majority argued, Some have a subject. expect Readers redeeming qualities. They have no remain a positions consistency in the editorial society long they threat alive. significant positions If issues newspaper. expressed permis- at our Frustration why. change, should be told readers system, sive which seems to legal turn makeup change of the board in while remain a loose threat to criminals years accounts last three argument was others. The made that if why position significant reason original death sentence had Creech’s been telling more is the role of reversed. But out, Jensen, not have he would killed carried He seems without con- Creech himself. inmate from Pocatello 23-year-old who science, chance of without rehabilitation. to be alone with Creech had the misfortune He, be fact, sentenced to wants death. period. during an exercise point the focal of death With Creech thought board of the No members debate, change position served as a deterrent. The death seemed inevitable. people plot carry who that belief was influences, Shunning such agreeing Ordinarily such articles would not find with Justice Huntley person that no shall But, their way appellate into an opinion. put law, be to death process without due ordinarily such are part articles of an no matter how deserving penalty, that Here, appellate record. sad to say, they regardless of his own desire for such an part appellate of the record which we re- execution, for reasons expressed Justice by Ordinarily, view. if in an court appellate I Huntley, must also conclude that in this record, they are found as exhibits to mo- case the sentencing procedure was a total change prior tions for of venue to a trial or process failure due under both the Con- publicity motions directed at excessive stitutions of the United States and of the an accused of a allegedly deprived which Idaho, specifically alluding fair trial. is not so here. Such presentence remarkable use of a report part appellate The articles are of the comprised exclusively almost of hearsay, were in the presentence record because any right without of any cross-examination. report submitted to and considered extreme, Obvious in the and with constitu- reaching trial court in its deci- process aside, tional due put concerns sion, has Huntley which Justice concerning statutory procedure legisla- selected which I will here- separately, written and to reaching ture for decision between a turn, infra, permitting. inafter time sentence of life and death was not followed. which favor the public addition has legislature specifically required by yielding expected reasonably be where of death is a sentence imposition that might three just newspaper, may imposed, only local be alternative of the the views most sentence, a life there will be a sen- publication, being prior weeks a resen- hearing, of which is for judge tencing purpose district respected highly argument on relevant evidence and case stated HEARING capital in a tencing hearing 19-2515(c). convic- of counsel. While “rele- firm I.C. hearing § his the record may, per- a term which mem- vant evidence” is makeup present tion “That discussion, haps, open be word of the State Court Supreme bers statehood, sentence, is not. and be- “hearing” Since a death affirm would fore, steadfastly this Court has distin- circum- that, any under I’m satisfied trier between evidence which a guished were circumstances, stances, factual witnesses, hears live from the an issue basis, but Upon them.” presented review, which, appellate like on evidence having on agonizing noting the Court’s also documents; affidavits, or, put, otherwise on that a death imposed previously a “cold record.” ago- the defendant’s defendant, also noting incommunicado years or three in two ny judge made use of the That Court Supreme the Idaho while row death exclu- report, perhaps almost presentence conclu- of fact findings reviewed according sively, is not to his discredit —not reason, I for this “And sions, said: the court experience who majority to a three member Su- mandate to follow refuse resolution of a life seeing no trouble in mitiga- findings make “from the preme may death issue be determined Osborn, 102 Idaho of Idaho available in the tion.” State voluminous information P.2d presentence report.” 187] [631 remarks, hearing news- for a being request The trial court’s Defense counsel’s aggravating where the and miti- given (by jury) were statewide worthy, prominent factors would be decided on basis thusly gating dissemination. it has been made So testimony live of witnesses should have up- from this Court evident that decision Whatever the law sentence, been honored. holding especially Procedure, under the Federal Rules Civil Creech, popular was hailed as one for Mr. upon by majority, although relied I.C. came before the even before Mr. Creech 19-2515(c) directs the trial to “or- sentencing. court for district say, did with The Osborn Court presentence der a murder. investigation to be con- ducted,” that it not, agree, which was there I did statute does nor does it to, purport nor could it when under the cold record of a permissible pre- viewed to use process due challenge, declare transcript that in lieu of live liminary hearing report of investigation, that any part or of crime, presenting evidence testimony it, may become upon the evidence which notwithstanding mandatory language judge (properly a jury) may render a death 19-2515(c); it I.C. and that sentence. It will serve as a source of infor- issue, alone, majori- that that issue mation to prosecutors counsel, and defense ty said, contrary responsive my own but that is and be should the extent of its view, there had no on the that been error permissible use. Where a defendant has part judge sentencing of the trial at the been tried aby jury it convicted hearing. say The Court did not there or degree murder, first evidence of crime that the hearsay running rampant intimate sentencer, is already before the be it judge presentence report in a could be the evi- or the same jury who rendered verdict. which a his upon judge hinge dence could The recognizes this, statute and provides in a post-conviction decision that “Evidence admitted at the trial shall nature of dеfendant’s crime and the not be considered and need be repeated nature past his character. at the sentencing hearing.” then, Clearly, majority simply The choose to ignore the statute contemplates that where there Osborn counsel the defendant not trial, has not been a will evidence not, only pleaded his client did guilty, necessarily presented have to be sen- Act, face of the 1977 claim a tencing authority or judge jury. The —be sentencing, rely trial at did himself majority in this case are aof different view, obviously. preliminary and materi- testimony Hence it bothers them not the facts of the homicide presentence were laid al report presenting before the trial judge the form of news- can mitigation. matters in I understand paper editorials, articles and in garbled opinion which in Osborn thus theo- majority reports of a number of taped interviews following rized the error in not department sheriff’s conducted waived, though gen- statute was even it is with Creech —the first of in my which read- a- erally believed that valid death sentence ing of the presentence report discloses to imposed only when the statutory can have taken place with a complete absence to, closely is adhered but I procedure cannot Miranda warnings. comprehend majority opinion which al- majority’s reliance on some recent rampant lows hearsay Idaho cases for the wholesale admission trial, but not at trials. It would seem guilt (The such hearsay presentence report’con- considerably the second trial is more pages. sists To it are vari- attached than important first. ous go depth documents which to a of 2% ignore The majority singular the highly inches.) cases, misplaced. v. Those State today’s presentence investigation fact that Johnson, (1980), 101 Idaho 618 P.2d and, report origin, are of rather recent Tucker, State 97 Idaho P.2d study, own came into my existence (1975), to been added might have where a defendant notified the trial Coutts, 609 P.2d 642 of his intent to ask leniency, usually Dermitt, 104 Idaho (1980), and Ybarra v. some judgment form withheld sus- (1983), did not involve P.2d sentence, pended coupled with a term of Nor degree first murder. sentencing for Court, however, probation. This has mis- Osborn, 102 does State v. used procedure to the detriment of majority the Osborn (1981) P.2d 187 sustain supposed those who were to benefit there- use of whole- condoning of the opinion its reading from. I submit suggested my As In Osborn that de- sale, random, hearsay. Coutts, Johnson, Ybarra. dissents fendant, too, guilty to pleaded my part, proper For with what I consider court on the just place took in district which deference of the holdings February and due to the a tran year, of this day 17th States, in Supreme Court the United to which was furnished hearing script of death I cannot in sentencing, matters a April this Court on the Clerk statu- good away conscience look when the far ago I write this two weeks scant Nor will tory procedures are not followed. done my own which is opinion, into along I at a require process fail to the same due parties. of the without the benefit of briefs always has capital trial which however, need, is to ex pressing A more trial. required guilt-innocence been the constitu considerable doubt press time, flatly At same statute where the which Creech tionality process by whenever requires imposition of death own into the court’s brought court on one or more factors are found aggravating of en through formality to go motion exist, they outweighed by are not plea. The circumstances tering guilty exist, factors I mitigating found to am Boykin me much in mind put this affair by prose- troubled knowledge much 1709, 23 Alabama, 395 U.S. 238 S.Ct. [89 attorneys thought cuting apparently are lack of (1969). than for Other L.Ed.2d 274] bargaining unlimited in have discretion legisla involvement under the degree which away first informations there procedures, capital sentencing ture’s they ap- have themselves and that signed, out, аnd, point will as I is little difference thought are the discretion parently to have automatic provide for an jurisdictions both both after convic- to determine before and Where a death sentence. appeal from whether will be tion death capital appeal an “automatic Alabama are judges district sought respect —in court to reviewing requires also cases apparently prosecutor’s view that a prejudicial record for error ‘any comb the to not is the election seek the death to our even not called appellant, though inquiry, mitigat- end of or at the least State, Lee v. in brief of counsel’ attention ini- ing factor. Back it all prosecutors 763,” 623, 630, Boy Ala. So.2d homi- tially assume to decide what 1711], kin, at 241 U.S. [89 degree cides will be mur- charged as first a death automatic from appeal Idaho on der, may and which will This latter not. under sentence, held that recently it was circumstance, but it would an unavoidable unchal ignore “we not 19-2827 I.C. § justice, if including seem that previously .... We have lenged errors once penalty, evenhandedly, is to be dealt holding much in this state recognized as murder, charges degree prosecutor objec error, absent even that fundamental laying that time on he is committed appeal.” on will be reviewed tion at trial before charge his first murder P.2d 187 Osborn, that, convicts, jury. After if the rule we Obviously under be the a jury should not but prosecutor, on review to make that same obliged also a just who determines and mete sentence. or fun plain though even appeal automatic Boykin error as was involved damental

III. counsel. by appellate assigned DENIAL OF EFFECTIVE ASSISTANCE that “It held High Boykin The Court OF COUNSEL record, error, plain on the face accept petitioner’s

Time constraints there for the trial permitting, showing concerning view more said without an affirmative my guilty plea which can be voluntary.” 395 Huntley. intelligent and the issues discussed Justice that it was ques- Boykin There is also the need to discuss and at 242 S.Ct. at [89 1711]. if his first ar- process pleaded guilty the due which arise tion issues defendant guilty with- opinion pleaded determines issue its Mr. Creech raignment; when a allowing subsequent hearing briefs of counsel At a argument initially. out him, the trial of Mr. was entered for resentencing plea attendant Creech

4X1 Creech, following the court conducted the allowed cross- homicide at hearing, penitentiary, was turned over to county au- prosecutor, examination admitted thorities and jail. incarcerated at the exhibits, county offered and made prosecutor’s I already have impermissible mentioned the findings: oral tape questioning transcripts of which one “THE Very you COURT: well. Thank in the presentence report along with other much, very Mr. Creech. You step question and answer transcripts where he I you down. believe have very been can- given was warnings being Miranda prior did with the Court. through taken the same routine without the record, “For the the Court will find warnings. the defendant understands the na- Creech, defendant, From jail ture of the just offense to which he has defendant, Creech the counseled wrote his plead guilty and he understands the con- own letter to judge declaring the district sequences plea his of guilty, and that that he wanted to enter a plea guilty. there is factual basis for guilty plea, Assuming the letter was received and that the guilty plea freely was so, judge day, next as was probably voluntarily made. very next day receipt, after or at least “I will accept plea the guilty and I will days no later than two after the letter was my direct Clerk to enter the same.” sent, judge apparently had Creech de- courtroom, livered to his apparently This satisfy does not my notions of due summonsed Creech’s counsel as well. And process. me, Time having run out on I then the hearing place took as aforesaid —of must necessarily save for another time or which the record transcript. contains a some other place an in-depth review of this strange affair. Creech had pleaded not first place I think that there is guilty, and in due time a jury would pass something lacking our justice criminal guilt his upon system innocence. His court-ap- where criminal defendants are al- pointed attorney lowed adamantly bypass their opposed counsel and engage procedure against direct dealings his with the advice— court. con- Such —which in my insisted on duct view is being improper, disruptive, allowed to withdraw productive from possible injustice, further error and representation of Creech. and cannot be tolerated. In so denied, saying The motion I although from that level my criticism not at particular time on Mr. Creech really had no further but judge, at the practice. As alluded to need for the attorney whose advice he dis- above, in Mr. Creech’s first case before this regarded. Time permitting, Mr. Creech Court he took it himself bypass might advice, have followed that but the counsel and write directly to the Court. trial judge moved precipitately too for any And, first; he was not the nor was he the reflection; meaningful at the time the trial last. As often as such communications judge assumed the responsibility help- have been received and circulated to the ing Mr. Creech along his bent for self-de- membership, I have denounced and struction, for which Mr. Creech a Gil- had against practice remonstrated continu- more-like penchant as the members of this evil, ing. It is an and it will produce evil Court personally observed in connection rewards. case, with the first Creech and as is more than amply demonstrated in various sec- Here, to me it inescapable seems that Mr. tions of the presentence attach- report Creech, unless he omnisciently knew that ments, Mr. Creech was then and di- there the statutory scheme for death sentencing vested of unconstitutional, effective assistance of counsel— was realistically cannot which was his guarantee under both said to have knowingly intelligently United right States to a jury Constitutions. waived his trial of the de- The precipitate manner in gree guilt, which it came of his and if found all murder, turn, then, about is not an acceptable degree to have at the procedure. him, same time waived his have that so but recommended convicted same from the jury, mercy evidence Court —a futile recommenda- tion crime, judge to a who was au- heard live to his without witnesses as thority dispense mercy condition, going through past, to his to his mental and to the formality judg- the written imposing prognosis, decide whether he should die hanging ment execution which the or live. required. People law Was the Walters the determiner sentence? ON DENIAL OF PETITION OPINION jury? Or was it the FOR REHEARING Who was the sentencer in the first BISTLINE, Justice. following admission statehood? murder Again jury. Exactly it was the as had been part so all the days, in territorial I. to affix his official to played signature was My grant vote was to the rehearing, al- v. the warrant. judgment State though I concede that there is not strong 224, (1894). P. 655 4 Idaho 38 Perry, any likelihood that there would be change in the to no majority provides votes affirm and the The discussion votes to Sivak reverse, amendment to the enlightening that the of the 1911 notwithstanding majority Obviously has not as the be- yet addressed in this of statutory provisions. case the sentencing in responsibility well-documented lief that the dissenting views that the Idaho belonged Constitution first cases guarantees degree murder persons the right it degree jury, convicted of first murder and with the correlative in Idaho fixed, the shall have their fate to have his sentence so life-or-death decreed defendant by jurors placed discretion peers. legislature of their 1911 some In another death no the discretion penalty case, jury the hands of Sivak, v. 900, State 105 Idaho —with as be- judges 674 to (1983) P.2d whatever entrusted 396 the author of that 3-2 —who judg- the simply sign fore written majority would opinion, who part is of thе 3-2 ma- ments, formal documenta- which were the jority case, in Creech’s attempted has to ex- jury. rendered plain tion of the decision away right of the Idaho Constitu- tion, in the outcome but Alive and interested attempt is feeble and unconvinc- VanVlack, 57 trial, v. 1936 ing. VanVlack State Notwithstanding that any Idaho court I remem- 316, (1936), well 65 P.2d 736 Idaho the proposition has ever addressed of mur- jury him ber that his found has held that Art. always guarantee of degree imposed first der in the 1, 7 to it apply is to be construed § death, first my at whereas in punishment adoption existed at the date of the of our set law school another year of Constitution, opinion in the majority degree murder for first defendant’s to points case convictions second Sivak Golden, v. 67 imprisonment. murder, life degree says of which it the “sen- (1947). The 497, 485 Sivak 186 P.2d Idaho judge, jury.” and not the A tencer was case, Sivak, nor in this majority has degree made to comparison burglary is first judges, how district Idaho demonstrated degree sophis- This burglary. and second and then in state- days, territorial both in No has ever contended at its best. one try Furman, were invested until hood time sentencing at discretionary authority ever our Idaho Constitution was adoption of The rea- murder convictions. degree first than in criminal cases other applicable matter of determin- simply son is The first murder. Sivak charging entirely was life and death ing between discussion enter declines majority was so at thusly It jury. the hands of 271, Walters, (1869), 1 Idaho v. People Constitution, including our Idaho time knowing that their full well jury, where 7, 1, The author adopted. its Art. § send degree murder would verdict 7 been Art. “has Sivak concedes nevertheless the gallows, the defendant

413 interpreted in guar several the cases as complaint “The made here by appellant anteeing the of trial by jury it to a highly (if relates formalistic defect existed adoption time all) defect at is a of the kind which the Constitution.” sleight-of-hand, neys may not a criminal (1922).1 People v. to remove a civil officer —which the court to, a civil and in the nature inal cases of In re majority opinion, might have being noted as mented on this of In re Sivak 180, 117 P. proposition author, Contrary Burnham, Prout, see as a deft display of case, Court’s so (1911), the Sivak author cites for stated what 35 those Dawson, but a criminal action. The indications, Idaho holdings and the earlier case some trial attor who statutory him the 522, 207 20 Idaho quo better joined this was warran judicial case P. action P. 589 crim com sentencing stage (1934), ceivable opportunity to mining whether the defendant’s absence him. forth amounted at a I.C.R. court L.Ed.2d 562 California, Carter, argue, particular in Snyder Appellant 54 S.Ct. enjoined and to speak personally at the long-standing was reaffirmed (1975), constitutional U.S. 806 point ^[330] and State v. [Carver] 496 P.2d 676 Massachusetts, in the ignore. [95 given present test action error proceedings every Faretta for deter- L.Ed. evidence, Rule 2525], was set against con- 291 both (1906) excerpts promi of cases being — of purpose process “The central the due dissent, nently set my forth in Creech Part clause, cases, as it criminal to applies to is I. As response matters now stand the only right to the the to secure defendant be by the Creech majority to the proposition proceedings treated in the taken fairly that jury sentencing constitutionally is California, him. Faretta v. su against mandated must by resorting be found to Massachusetts, v. pra; Snyder supra; Sivak, which response responsive is neither Carver, v. ‘Fundamental supra. State nor it convincing. If be that majority the fairness,’ concept as far as the is relevant simply has determined to In re overrule appellant’s argument, required Dawson, as judicial sleight- indicated the that appellant every the be afforded only cases, of-hand of the non-criminal citing to opportunity present reasonable evi preference Dawson, case, to In re a criminal to argument mitigation, dence it seems that a more would outwаrd stance statement, personal amake and to make be more a case as this. befitting grave so legal v. appropriate objections. Faretta California, Snyder supra; v. Massachu

II. setts, Carver, v. supra; supra; State When the Court heard oral at argument v. Higley, (Mont. 621 P.2d 1043 State Twin Falls last fall the General Solicitor Walker, 1980); State v. 536 P.2d 657 was adamant belief presence in his that the (1975); People Coyle Cal.App.2d v. [88 the pronouncement defendant at denied, 967], (Cal.1948), 200 P.2d 546 cert. sentence be dis- formality was a that could 337 U.S. 93 L.Ed. S.Ct. [69 with, lan- pensed notwithstanding the clear reh. denied 1721], 337 U.S. [69 of a guage requiring presence. statute 1485, 93 1740], L.Ed. argument Oral that vein paralleled the State’s brief: “Clearly, these considerations do not

“No on facts of materially appellant’s was the bear the proceeding conducted for purpose orally Appellant sen- was not denied announcing any op- the case. tence imposed upon the to be matter of appellant, portunity any heard is appel- only circumstance the basis of The mitigation ‘proceed- defense. lant’s claim of error. missed was ing’ judge’s personal he the 1. An additional cite is v. brought case Christensen Holl- to a see a citation civil case which was ingsworth, (1898). mortgage purely equitable Idaho P. 211 The to reform — may surprised type trial non-jury bench and well bar be to of action.

deliberations about the sentence. Appel- also that because “Appellant argues lant he could not have further not participated orally announced sentence did, than he if state brought given opportunity even the court had was not the appellant why into the courtroom and read cause’ any ‘legal there whether Thus, the opinion open priv- pronounced. court. should ilege presence sought appellant be- right defendant’s to be heard “The useless, ‘would be or the benefit but pronounced is undisput- fore sentence shadow,’ Massachusetts, Snyder supra, I.C.R.; Goodrich, 33(1), ed. Rule in such cir- and the defendant’s absence How- 546 P.2d Idaho signifi- cumstances had no constitutional ever, right requires only allocution reason, Nor, could cance. same before must ‘a no conse- statutory rule or violation defendant, address and offer directly setting aside quence be the basis for a clear personally opportunity him theory sentence on appellant’s behalf, a statement in his own make and rule. statute was a of state violation present any information in mitigation ’ Rule I.C.R. Goodrich,97 punishment... State v. support without “Appellant, at P.2d Appellant 480 [546 1180]. whatever, due proc- argues authority right speak was not offered only application ess of law tested times, took advantage several but he of ab- potential factors other than allocution and right of made pro- the fairness sence to frustrate statement to the court lengthy before ceedings. sentencing. allocution does fairness argues that fundamental “He contemplate may defendant prisoner be ‘looked requires that the forever, speak or that his continue sentencing, that time of eye’ so. Orderly process do re- counsel person confrontation person quires proceeding that at some time the necessary is announced is time sentence the judge to an end and announce come the to be judge induce because the sentence.” sentence, and passing ‘humane’ more Brief, Respondent’s pp. 13-18. fairness as an element that fundamental contention Notwithstanding strong this requires clause that of due process the Court, State, the three and from the some sentencing closed, proceedings secret argument, hearing months after one-half prevented. be vacating its the death sen- entered order process the due suggestion that “The had judge imposed the district tence which to de- look the requires judge the clause on Creech: is at the time sentence eye fendant cause, defendant the “In above-entitled the to influence in order pronounced of to plea Creech entered ‘humane,’ smacks of be more judge to ac- degree murder and in charge of first process the due that somehow argument 19-2515, the I.C. district cordance with § sentencing judge that the requires clause hearing mitigating into court conducted the magnitude of by the be intimidated and there- circumstances aggravating frightened thereby and task before him January, day 25th of after on the Respon- sentence. away from a death the impose purported court district supporting no case dent has found defendant; and upon the death sentence cites none. appellant theory, this Court being before “The cause fact, re- sentencing guided discretion also appeal by the defendant both on only influenced quires judge that the be of review automatic pursuant the offend- related to by objective factors I.C. 9— by mandated § death sentences Georgia, Gregg er his crime. 2827; and 49 L.Ed.2d 859 record, without from the appearing “It respon- by otherwise

any contention Idaho, dent of contrary also no for this precedent law. There was requirements of I.C. 19-2503 I.C.R. the district commanding § Court’s order 43(a), judge purported impose conviction and judge judgment to enter of sentence in absence of defendant and days. within fourteen impose sentence his the presence counsel without for this precedent There was likewise no court, open and his defendant counsel to retain reversing judgment Court in written imposi- but rather means of a jurisdiction. part This order was death; tion of a sentence of an instruction to the district tantamount THEREFORE, “NOW, IT IS HEREBY judge again impose a sentence death. ORDERED the sentence follows, It readily night day, follows upon the in the ab- imposed defendant judge if the district held a hear- sence of the defendant and his counsel be sentence, ing and a life imposed there hereby and the vacated same is and the provided would be no automatic as is review to the Honorable cause remanded Rob- where the It is of sentence death. little Newhouse, Judge ert District the wonder judge reading district Fourth Judicial District of State of the order of this Court to the press declared Idaho, County, Ada who shall within that it much nit-picking, was so and that he (14) days date fourteen from the of this would Creech into his court and bring read Order, open presence court and him the the death judgment imposing sen- counsel, defendant enter a tence which had not theretofore been read judgment impose conviction and such open Creech in court. upon the sentence defendant Thomas Eu- Secondly, the action taken gene Creech as to the District said Judge out certainly bore the contentions of the just to be may appear and appropriate. Solicitor General as above set forth. If the In the event shall impose said correct, then attorney general death, a warrant therefor vacating Court erred in the death sentence shall issue accordance with I.C. 19- imposed. which was If solicitor 2705; and incorrect, general was office enti- “IT IS FURTHER ORDERED that on opinion tled to a written passing upon the completion proceedings said a tran- contention. Such was not forthcoming. shall script immediately pre- thereof Instead, the rather in prece- serious break pared, lodged delivered and with this dent was handled a footnote: (5) later days Court not than five completion proceedings; said “The district executed a written imposed “IT FURTHER document which the death IS ORDERED that sen- this shall jurisdiction Court retain tence Creech. upon this That document was compliance cause with this pending Order served Creech upon and his counsel. I.C. and thereafter will determine the issues 43(a) require 19-2503 and I.C.R. sen- on and appeal; pronounced tence open to be court with a

“IT defendant and being IS FURTHER ORDERED that his counsel be this Order served the present. Honorable The district did not judge con- Newhouse, Robert Judge G. District form with those requirements. This District, the the Court, therefore, Fourth Judicial Office of the day order of 24th Attorney General, the counsel and for the said February, vacated sentence defendant.” of death and remanded the cause to the imposition district court for of such sen- My against proce- vote was this piecemeal tence district dure; judge might just as the find my reasons are stated. First readily and all, appropriate imposed upon precedent there was no for vacating (in Creech in court with open Creech and his reversing) essence the district court present. counsel Consistent with judgment without that or- issuing this Court the remand, the supporting opinion judge which forever der of district con- has been procedure March, the day and has court on the 17th statutory basis vened the resentencing, and in of Creech and should furnish presence immediately counsel, the death imposed Supreme transcript Court a The execution of that upon Creech. proceedings.” stayed pending was these death there in the order any uncertainty If was before this Court.” proceedings itself, the dis- press release told clearly maj. was, opin., Supreme 365n. trict Court p. judge [See 1.] the death notwithstanding the vacating accurate, The footnote is other than it case. sentence, continuing lay hold implies judge a district conducted words, all at other the district was judge sentencing a hearing “just to determine and time told to conduct a being one appropriate” sentence. There was hear- no “just hearing appropri- arrive at a and and ing. judge merely brought district reimpose also ate” sentence and defendant into his courtroom read This is what exactly sentence. death judgment him his former imposing did, I have was no and as said there judge death judgment sentence. From hearing. Although the court cannot district Court, again appealed Creech to this where obeying a mandate be faulted for clear assigned it was Court 15000. Supreme No. Court, there was no au- simply from this appeal resulting The first the order thority precedent whereby where- forth above set was No. 14480. After that remand under this could reverse and entered, was no longer order Creech resentencing yet jurisdiction retain death, re- under sentence of and so would of the case. Better this Court until mained March which time than have with the agreed general solicitor judge out the district carried mandate have a situation created such convoluted judge of this Court’s order as the district as the remanded to court. one the district judge order. The read that district read the language Other than for of the order simply requiring formality having hardly and the release it to be press present imposition Creech in court judge reversal or doubted that district previously the same death penalty imposed. judgment vacation imposing regard judge In that view of the district capital type should not in a case conduct the amply “press sustained release” mandated, of a which is hearing statutorily prepared along the Court issued case, flatly in another or was so recent order, with its which was as follows: defy the of this mandate Court. State “The Idaho Supreme Court issued an Osborn, (1981), P.2d 187 today Order remanding the death sen- Osborn, 663 P.2d State v. tence of Eugene Thomas Creech to the district court. be, not, there could not and was Thirdly, out in pointed “The Court its Order of justice impor- administration orderly — imposed had eases, tant but critical especially all written death sentence document capital sentencing cases—with this court than the sentence in imposing rather vacаting judgment imposed its court in of Creech and open presence sentence, at the time de- same attorney required by his statute and juris- claring that it somehow retained the Therefore, court rule. the Court vacated diction when the was acquired appeal and the the sentence remanded Defense sentencing. taken on the initial the with instructions case to district court Creech, had counsel was aware who again it a impose upon sentence to the 25th been first sentenced death on presence in the of open Creech court 1982, the of was entitled to day January, and attorney. Creech hearing which this Court statutory same I, but, that this directed also saw in Osborn that the Supreme “The Order indicated had strangely insisting was jurisdiction would the Court Court retain of vacating the court, after continuing jurisdiction case and that the district after judgment appeal gave from which ry) jackets Creech inmate who and Court jurisdiction along with the statuto- was killed Creech. — for ry provisions Ac- automatic review. (of 1983) (3)Motion compel March made aware that the district cordingly, (former pris- disclosure of witnesses State’s press read this Court’s order re- and inmates) on who affidavit supporting merely requiring formality lease as alleged possess knowledge were relative Creech’s defense presence, counsel —faced circumstanc- aggravating mitigating and of jurisdiction, with a and aware of duality es. imposed the deadline that this Court’s order court convened at a.m. on March When 9:15 court, upon the district and with Creech’s present, with Creech district available, main counsel moved this to read aloud written proceeded court stay Court for a as it order insofar mitigation findings aggravation directed within the district court to act entered, adding he previously had fourteen days. Responsive thereto this record, the time I do that “For hearing Court ordered that the time for as of findings affirm and reiterate these on remand was extended —“shall con- up pend- The court then took today.” 14,1983,” ducted on or after March and on or motions, above alluded ing including those April before 1983. was en- This order one, to, every denied each and and also day March, tered on the 3rd 1983. objections previous denied to some opening paragraph of the order a contained findings aggravation. and reiterated A recitation language of which could not objection sentencing further a hearing but have fortified the judge’s district view inquiry I.C. 19-2516 required under that he was to actually Creech a accord testimony live also denied. De- sworn sentencing second hearing: requested granted fense counsel having “The Court entered an ORDER to file with court motions permission herein February 1983, temporarily on ap- motion for jury sentencing and a case remanding this to the District Court pointment designated medical examin- District purpose requiring ability intelligent- er to evaluate Creech’s ' G. announce Judge Robert Newhouse to proceedings. These mo- ly comprehend impose the defendant all significance, tions were denied. Of Thomas court Eugene open Creech in exchange there be- process was this present said defendant and his defense the court: tween counsel and counsel; ....” “MR. KEHNE: If Court reads the court, The district thus having granted been authorizing Court’s order as Supreme March, on the day span 3rd only already to do as it has done— March, 1983, time from the 14th day of words, findings and also in other read the day 1983, ordered, until the 4th of April, open the sentence death in read March, 1983, the 15th day of that Creech suppose point court —then I there is no appear and his counsel court before the two having time prepare me days later on the 17th at 9:00 day of March review. a.m. “so that this court may conduct had actual of this hearing “I notice out hearing carry all of the directives Tuesday is not night, simply and that R., Supreme of the Idaho No. Court.” for me to a series of wit- prepare time 15000, p. immediately 14. Defense counsel try prove to come in miti- nesses post-remand filed motions which included: gating surrounding circumstances (1) March (of 1983).to Motion vacate crime. sentencing hearing, and reset the based on think the Court’s order Supreme “I grounds days that one and one-half a little bit to be desired in the leaves time preparatory actual was insufficient. gives. of direction it On the one amount (of

(2) 1983) compel empowers Motion March to it sounds like it the Court hand (state and discovery findings of institutional to read the the death penitentia- only so, Kehne, will open sentence in court and follow the I welcome to do Mr. arraignment statutes on for sentence. abide the same. hand,

“On the other the order autho- the order reads “MR. KEHNE: But as time, now, rizes to more impose any the Court if the had even Court just rule we are to start appropriate which it feels to be Court would that circumstances, again under I all over with witnesses? all gives would us the to suggest authority Well, not without “THE COURT: Square put start on evi- One and me cause. any You haven’t given cause. try dence and to convince the Court to Tr., 4, pp. Vol. 22-25. impose a sentence other than death. denied, All the district being motions “And we are to such I hearing, if have hearing court concluded March have to have more notice in advance to Creech death. by again sentencing to get people day here in a half. you, “THE Thank Mr. COURT: III.

Kehne. by-product Bower, unprece- As a natural “Mr. do you any have comments appeal has in which this like to that dented manner you regard? would make in processed, pending we have be- been now “MR. BOWER: No. which is relevant appeal, fore a third yet us “THE I Very go- COURT: well. am my I Part III of to that which wrote in to ing deny the will state why. motion. I year. this opinion April released Supreme my opinion The Idaho Court letter There I mentioned Creech’s has, statements, along their with gone his desire to enter judge advising district regard all the I hearings have had charge of first plea guilty sentencing. murder, with which he was alacrity and the “I that can’t see there more he so brought ordered before required in this oth- particular proceeding assistance of counsel could do so. Effective er argument. than an I don’t intend so, but even meaningless, rendered let the witnesses all come back al to withdraw. At counsel was not allowed presentence brought go in and people point, again resentencing that at the through back than that clear farther mandate, aid counsel under this Court’s point findings. before I made these is ground That useless Creech. deadline, given I have also been “And I mention well-ploughed. which has been record, ‍‌​‌‌​​‌‌​‌​​‌​​​​‌​​‌​​​​‌​​‌‌​‌​​​​​‌​‌‌​‌‌​​‌​‍I I do note for the have to change with Creech’s only in connection add, might have And I this is this done. mind his to withdraw motion time I have solid only about the I have. jurisdiction dual Under the plea. be between now cases that should heard created, sup- Creech made a that this Court and the deadline. Court and the motion in both this ported going deny “So I am motion mo- This denied the district court. Court vacating sentencing motion continue the an appellate made inappropriately tion as reset. hearing and so had Ordinarily this would court. rec- clarify KEHNE: Just to “MR. apparently a jurisdiction retained Court not a waiver charged ord so I’m not court. with the Creech concurrent district intend, ruling Court’s I didn’t would the in the dis- motion presented has since his if I secured from the Su- be the same denied, now court, it was where trict extending the an order preme Court when the appeal before us on that will be deadline? woven This has indeed in. Court briefs are be, as some While it Oh, I we web. tangled think yes, “THE COURT: helped should be Creech I Thomas going. say, think get this matter ought to self-destruction, it is a along quest Supreme to control up it’s administration order, orderly you pity you get If this matter. criminal justice has broken down in the

process.

IV.

On the issue of lack due process at a

sentencing trial to determine whether a

person will or die, live surely must be

law that such a trial deserving is as due

process as the trial guilt at which or inno

cence is determined. incorporate I here the

additional views which set in my forth

opinion in Sivak, State v. 900, 396 674, (1983)

P.2d time constraints under the

rules of the Court so dictating. Rather

obviously, the majority in this case have ignored

now two opportunities explain

away the fundamental error in destroying

Creech’s constitutional to the effec

tive assistance counsel.

670 P.2d 520 MITCHELL, Petitioner,

Rick Idaho, Judge

AGENTS OF STATE of

Bail, Palmer, al, Sheriff Chuck et

Respondents.

No. 15174.

Supreme Court of Idaho.

Oct. 1983.

Case Details

Case Name: State v. Creech

Court Name: Idaho Supreme Court

Date Published: May 23, 1983

Citation: 670 P.2d 463

Docket Number: 14480, 15000

Court Abbreviation: Idaho