State v. Dunlap

Idaho, Plaintiff-Respondent, STATE

Timothy DUNLAP, Alan Defendant-

Appellant.

No. 19928. Idaho,

Supreme Court Falls,

Twin March 1993 Term.

July 1993. Sept.

Rehearing Denied

McDEVITT, Justice. Chief

BACKGROUND 16, 1991, Dunlap and entered On October Security Bank in Soda State robbed of the rob- Springs, Idaho. In the course Tonya bery, Dunlap shot and killed Crane teller, (“Crane”), close-range with a a bank Dunlap fled the shotgun blast to her chest. scene, po- subsequently surrendered to but was A criminal information lice officers. against Dunlap November filed on murder, degree rob- charging him with first of a bery, use of a firearm the commission murder, of a firearm the commis- and use robbery. sion of a 30,1991, the and Dun- On December State lap plea bargain agreement entered into In accepted by the district court. which was agreement, dropped the rob- State bery in the commission and use of a firearm robbery charges, Dunlap pled guilty of a and degree murder and use of a firearm first Although in the commission of a murder. murder, Dunlap pled guilty degree to first Dunlap’s specified plea the district court that specific did not admit that he had a intent to robbery place. kill time the bank took at the plea agreement The allowed the State penalty it clear seek the death and was made agreement that the seek State would penalty. the death plea agreement recognized The also that indicted in the had been October (“Bolanos”) 1991, killing of Belinda Bolanos Dunlap agreed Ohio. the Ohio indict- information, statements, ment, witness evidence could be submitted to the district through presentence report could considered the district court as be aggravation. Dunlap agreed evidence in also information, object not witness Ohio statements, except on or evidence the basis had not convicted of the Ohio he been agreement. crime at the time of the return, agreed not to call as a Whittier, Souza, McDougall, Murray & sentencing any police at Ohio state witness Clark, Chartered, Pocatello, for defendant- officer, pathologist, forensic or other Ohio Whittier, appellant. argued. R. Monte law enforcement official. Nor would EchoHawk, Gen., any pictures of tak- Larry Atty. Lynn E. State introduce Bolanos Boise, Gen., (argued), Deputy Atty. law enforcement authorities after Thomas en Ohio plaintiff-respondent. for her death. § 19-2515(g)(8) uncon- sentencing, Dunlap a motion 3. is

Prior to filed Whether sentencing any stitutionally vague. evi- in limine to exclude at killing. Dunlap argued the Bolanos dence of 19-2515(e) unconsti- Whether he not been convicted of had because tutional. Ohio, any in irrele- crime such evidence was by the erred fail- 5. Whether trial court vant, right prejudicial, would violate his give weight mitigating ing to more to certain by determining in process guilt to due his the upon sentencing. factors killing a without the benefit of trial. Bolanos disagreed court Dun- The and denied district these we inde- In addition to issues also lap’s motion. of as pendently review the sentence death sentencing hearing § required by was held on March The I.C. 19-2827.

31, 19, 1992, April and on the district “Findings its of the Court in

court filed I. Penalty Considering Idaho Death under 19-2515(g)(7) Sentence,” § I.C. Imposition § 19-2515 and of Code sentencing Dunlap to death. Pursuant to 19-2515(g)(7) § a Idaho states that Code 19-2515, § I.C. the district court found two statutory aggravating circumstance will exist beyond aggravating to exist a circumstances mur- murder was one defined as “[t]he when doubt, individu- considered reasonable which 18-4003, degree by of first section der the by miti- ally, outweighed not all of the were (e) (c), (d), (f), Code, (b), or subsections aggravating circum- gating evidence. The accompanied specific the and it was with by found the district court include: stances being.” a human intent to cause the death of (1) felony a murder the murder was that case, court the In this the district found specific to cause committed with the intent aggravating to be- (g)(7) circumstance exist § 19- being, the of a human I.C. death § on 18- yond a reasonable doubt based I.C. (2) prior Dunlap, by 2515(g)(7); and that 4003(d),2 stating: conduct, in the of the or conduct commission killing that The facts of the demonstrated hand, propensity a at exhibited murder bank a the defendant entered the with probably consti- commit murder will which money, the preconceived plan, demanded § 19- continuing society, I.C. tute a threat it, and shot the victim—all received 2515(g)(8).1 thirty the approximately seconds. Further the sen- Dunlap appeals from trial court’s made no sudden moves victim herself tence, raising following issues: the alarms. The defendant ad- activated no in deter- 1. the trial court erred Whether victim, mitted he intended to shoot the that mining aggravating that the circumstance shotgun he off the with had sawed beyond § 19-2515(g)(7) existed at I.C. listed activity, intent it criminal to use a doubt. reasonable sawing he off the knew the effect using load shotgun and the effect of low in deter-

2. the trial court erred Whether jail shotgun He inmates that shells. told aggravating mining that circumstance load he knew the shot would beyond § with this low 19-2515(g)(8) at I.C. existed listed victim, regardless, but she would kill the a reasonable doubt. - Creech, -, beyond U.S. 113 S.Ct. found a reason district court also The murder, However, because the district doubt that or circumstances L.Ed.2d 188. able commission, 2515(g)(6) surrounding rely § an for its exhibited on I.C. court did not 19— § disregard penalty, 19- imposing human life. are issues utter for death there no However, 2515(g)(6). appeal. involving due to the Ninth Circuit’s this section on this unconstitutional, ruling this was section aggrava rely did on or court not use district Degrees of murder.— 2. 18-4003. imposing penal ting death circumstance for (d) perpetration Any in the murder committed Arave, (9th ty. Cir. Creech v. 947 F.2d See of, battery perpetrate, aggravated — attempt -, or 1991), granted, U.S. S.Ct. cert. (12) years age, under twelve on arson, child The United 119 L.Ed.2d 585 robbery, burglary, kidnapping or rape, upheld Supreme since the con Court has States degree. mayhem first murder of the stitutionality 19-2515(g)(6) § Arave Tonya Crane. kill when he shot weapon ic intent to slowly. He fired his die more Dunlap’s arguments each of feet from the vic- We address eighteen inches to two tim’s abdomen. turn. testing performed for the

Additionally, dis- which the Regarding the standard trigger pull of this indicates that the specific intent to is to determine trict court and, weapon pounds, at least seven was kill, argues that the district therefore, not, under circumstances would premedita- between failed to differentiate described, accidentally been dis- have accompanies the act of normally tion that Further, has indi- charged. the defendant spe- degree with the element first murder killing be- cated that he committed the kill, required prove which is cific intent to “to Tonya “had to die” and cause Crane of I.C. 19- aggravating circumstance indicated teach her a lesson.” He has also as 2515(g)(7). murder is defined Because The that he shot her to create a diversion. being with killing of a human “the unlawful to inmates of the defendant further related 18-4001, Dunlap § aforethought,’.’ malice I.C. County intended to Bingham Jail that he kill lan- specific intent to maintains that the Tonya he robbed the kill Crane when 2515(g)(7) § re- guage in I.C. contained 19— Finally, Dr. that it bank. Estess testified premedita- finding “heightened quires a Timothy Dunlap en- opinion was his that by tion” the trial court. kill rath- the bank with the intent to tered opinion It the Doctor’s er than to rob. was Dunlap argument, support of his killing provided the defendant that the See Porter v. cites various Florida cases. gratification and that he with emotional (Fla.1990); State, Pardo v. 564 So.2d 1060 picked particular because she this victim (Fla.1990); State, Hamblen v. 563 So.2d 77 easy and to kill. was vulnerable (Fla.1988). However, State, 527 So.2d interpreting an the Florida cases are not objective judges by The intent stan- law in to that found aggravating condition similar experience Persons of dards. reasonable Rather, 19-2515(g)(7). aggrava § the I.C. intelligence expect the and would death as in is whether ting circumstance those cases consequence shooting of a under natural cold, in committed a calculat the murder was purchase To these circumstances. ed, any premeditated manner without modify shotgun, a to enter a bank with an justification. legal or See Fla.Stat. moral ammunition, abundance of to then dis- 921.141(5)(i). Furthermore, § im Florida charge gun directly person at a from a the poses “heightened premeditation” re the feet, range all denotes' of less than two already premeditation is quirement because Dunlap intending specific intent. admits capital in Florida. an element of murder intending To claim to shoot and to wound. in Porter: Supreme The Florida Court stated under these circumstances a lack of intent already premeditation is an element Since kill ludicrous. is Florida, capital murder in section 921.- Therefore, overwhelming the evidence of 141(5)(i) meaning; must have a different objective by any case this demonstrates otherwise, apply every premed- it would beyond proved that the has standard State Therefore, section 921.- itated murder. a doubt the defendant had the reasonable 141(5)(i) apply more cold- must to murders specific intent to cause death to a human ruthless, blooded, plotting and more more Tonya being he shot and killed when ordinary reprehensible crime of than the Crane. (Foot- first-degree premeditated murder. regarding Dunlap arguments two raises omitted.) deadly dangerous State v. and manner. when there is manifested a deliberate inten- (1979); Warden, 21, 100 Idaho 592 P.2d 836 life, unlawfully away to a or im- tion take Buchanan, 365, 73 252 P.2d State v. Idaho plied, attending the when the circumstances (1953). Additionally, 524 Dr. Estess testified killing malignant show an abandoned and Dunlap that the bank the intent entered with interpretation, heart. an aban- Under this kill, Dunlap to rob. told oth not to himself malignant killing doned and heart is murder The ers intended to kill that he Crane. although premeditated no intent to there is beyond supports, in case a rea evidence malignant kill. If the and heart abandoned doubt, finding sonable the district court’s murder also the circum- involves enumerated robbery the the Dunlap that committed with (e) 18^4003(b), (c), (d), § in or stances I.C. specific required kill as I.C. intent to (f), peace person such as the murdered is a § 19-2515(g)(7). officer, 18~4003(b), § person the com- or who under a for mitted the murder was sentence II. murder, 18-4003(c), § that then murder is degree murder classified as first under I.C. 2515(g)(8) § 19— (James), § v. Pratt 18-4003. See State 546, (1993); sentencing, Dunlap v. At the time of P.2d 800 State (1989). killing in Ohio for the of Lankford, 781 P.2d 197 had been indicted 116 Idaho — Creech, U.S.-, Bolanos, plea agreement, the and under the See also Arave v. However, permitted present to the indict un- State was S.Ct. 123 L.Ed.2d statements, ment, information, and the ele- witness less the State can show additional kill, killing for the specific other of the Bolanos premedi- ment of intent to ie. a evidence kill, pro purpose proving Dunlap that had the intent the circumstances of an of tated to § 19- pensity murder under I.C. malignant heart murder will to commit abandoned and agreement, 2515(g)(8). plea Pursuant to satisfy 19-2515(g)(7) § allow a the not and object only evidence on judge penalty. Dunlap The could such impose the death had not convicted of requirement kill the basis that he been specific intent of I.C. However, of Ohio. 19-2515(g)(7) merely requires the crime the State that if trial degree plea also prove agreement first murder states State sentencing Nothing in the Ohio evidence at express malice. admits occurred with objection, Dunlap’s admits statutory language of the over then scheme or feloniously killed higher Bolanos.3 a standard was he statute indicates that tion, statements, of Defen- plea or statements agreement "If witness [district] 3. The states: sentence, evidence, aggravation informa- dant are admissible Court determines that said had been charges against Ott which prior ruled that the evidence The district court charges against pending dismissed and the because it killing was admissible of the Ohio him....”) otherwise admissi- both reliable and was was of Evidence and the Idaho Rules ble under is on this issue applicable case The most argues appeal on Idaho case law. Creech, 362, 670 P.2d 463 105 Idaho State v. considering erred in that the district court Creech, found the de- this Court evidence, claiming that because he the Ohio commit murder propensity to fendant’s at that been convicted of the crime had not society was evi- continuing threat his was irrelevant. time the use of such evidence consisted of by prior conduct which denced Creech, However, in 105 Idaho pending or for charges which were murder (1983), “propensity” we defined charged. had not been which the defendant an proclivity, susceptibility, and even as “a The stated: Court (cid:127) committing mur- affinity the act of toward defendant, the applied particular to this As definition, Certainly Dun- der.” under this clearly finding propensity tailored was killing lap’s involvement the Bolanos here commit- correct. The defendant Dunlap’s and whether relevant to character prior four times to the murder at least ted propensity he has a to commit murder. offense, in Idaho and also instant twice presently There Oregon and in California. Nevertheless, Dunlap argues that because charges murder in pending other exist any crime re- he.has not been convicted against The testimo- degree him. killing, of such garding the Bolanos the use first ny eye to one of Creech’s of an witness have prejudicial evidence is and should not murders, psychiatric previous coupled with despite been considered the district court evidence, appellant prove that the tends to relevancy. stated that a “sen- its We have vengeful experi- that he is violent and tencing judge is entitled to consider a wide Letters no remorse for his actions. ences range of relevant evidence when he evaluates per- by written Creech to law enforcement par- appropriate the sentence for each what alleged murders sonnel detailed numerous be.” Si- ticular defendant he sentences must already beyond he has those which State, 197, 214, for 112 731 P.2d vak v. Idaho intentions been convicted and intimate his (1986). 192, cases, past In relevant evi- 209 own state- to kill in the Creech’s future. prior criminal conduct dence has included approxi- responsibility claim ments for despite particular fact that the defendant the mately forty murders. not convicted of a crime. State v. had been 371, (emphasis P.2d at 472 (1992) 105 Idaho at 670 Brown, 385, 121 P.2d 482 Idaho 825 added). law, prior this case we con- (letters Given detailing violent crimes that other prior of unconvicted clude that evidence defendant had committed related to defen- unduly prejudi- is and is not crimes relevant society dangerousness to and to his dant’s determining a cial when whether defendant unfairly not character and were therefore the propensity to commit murder in has the Kohoutek, prejudicial); v. 101 Idaho State future. (1980) (“It 698, 699, 1151, 619 P.2d 1152 sentencing in a defen- proper Dunlap’s for a trial court in- light In of the relevance of participation killing of his our dant to consider evidence with the Bolanos volvement conduct ... for he has not such evidence to prior criminal which case law which allows considered, properly or for which an information the district court been convicted be Ott, secured.”); determining State v. 102 considered the Ohio evidence has not been (1981). 798, propensity kill 169, 170, Dunlap has the to P.2d 799 whether Idaho 627 (“In 19-2515(g)(8). Consequently, § sentencing the under I.C. arriving at its decision Dunlap hereby agree and admit that authority considering “does within its was Bolanos, killing objection, Belinda as contained in this

regardless Defendant of of Defendant’s solely purposes paragraph, for of hereby agree that he did felo- is admissible and admit does Bolanos, sentencing Agreement on being, Plea and in Count niously a human on kill Belinda Ohio, 1991, 6, County, by filed in this case I of the Criminal Information in Hamilton October charging with Murder in the First shooting the head with a the Defendant her in the throat and in Degree.” to The admission of Defendant as the cross bow. 536 challenged aggrava- feloniously mining kill ... whether the

he Belinda Bolanos did ting adequately informs the shooting in the in the head circumstance her throat and in order plea what must find a cross-bow.” Pursuant sentencer it with only impose penalty, the death or whether it agreement, this confession is admissible plea agreement and the unchanneled dis- purposes of the leaves the sentencer with for sentencing Dunlap charge arbitrary capri- of first for the to make cretion an degree murder.4 cious decision. Bolanos kill- In addition to evidence of the Pizzuto, 742, 771, 810 v. 119 Idaho P.2d State testimony by Dr. Estess that ing, there was (1991). Arizona, 680, v. 709 See also Walton Dunlap explosive personality, an motivat- has 639, 110 3047, 111 L.Ed.2d 511 497 U.S. S.Ct. anger, objects of by rage and ed and that (1990); Gregg Georgia, v. 428 U.S. 96 anger generally are Dr. Estess his women. (1976). 2909, 49 859 This L.Ed.2d S.Ct. propen- gave opinion Dunlap that has the his upheld constitutionality of has I.C. Court This murder in future. sity to commit Pizzuto, 119 19-2515(g)(8) § Idaho personal on interviews opinion was based Sivak, (1991); P.2d 680 State v. others, Dunlap, Dunlap interviews of with (1983); 900, 674 P.2d and State v. Bolanos from the the evidence Crane Creech, 105 Idaho 670 P.2d past psychiatric killings and medical and Sivak, argu made the same defendant Dunlap. Accordingly, con- we evaluations advances, Dunlap that the ment as now word sup- in this case cluded that the evidence judge allows to find an “probably” a trial doubt, ports, beyond a the district reasonable on less than aggravating circumstance based finding propensi- has the court’s rejected we a reasonable doubt. However probably murder

ty to commit will which § interpretation an I.C. 19- such society. a threat constitute 2515(g)(8), stating: (f)(8) Reading (g)(8) entirety, in its [now ] III. reasonably be we fail to see how it can OF CONSTITUTIONALITY interpret- argued could be statute 19-2515(g)(8) § finding on require only a based ed evidence, rather than preponderance 19- argues next doubt, beyond expressly as it reasonable unconstitutionally vague because 2515(g)(8)is states. requires a court to find that a defendant it mur propensity a to commit

“has exhibited continu probably constitute a der which will urges interpretation appellant added.) The that is society.” (Emphasis ing threat wording the contrary to the of stat- clear that of the word Dunlap maintains the use 2515(f)(8) requires merely § I.C. ute. implies “preponderance a of the “probably” 19— doubt, beyond finding, reasonable of a a “beyond a standard rather than a evidence” of existence the defendant a the within standard, is the doubt” which reasonable likely to propensity to commit murder aggravating an circum by which standard (f)(8) read, society. Thus cause a threat language the must be found. Because stance unconstitutionally (g)(8) is not ] [now contradictory, Dunlap asserts appears vague. unconstitutionally vague. statute is the vagueness a claim has been analysis of 904-05,

Our at 674 P.2d at 400-01. 105 Idaho reasons, reject stated as follows: also Dun- these same we For the constitutional- lap’s argument uphold claim eighth a the amendment Under 19-2515(g)(8). § by ity deter- of I.C. vagueness analyzed on is based admission, pending proceeding although in the admissible Defendant criminal 4. The Bolanos determining Dunlap’s propensity paragraph purposes 11 of of of Ohio as described for the State 2515(g)(8), § not admissi- agreement I.C. is Agreement. copy to kill under the A this Plea 19— Dunlap any against purposes for criminal Prosecuting Attorney ble by executed the this effect agreement states: plea proceeding in Ohio. The Ohio, County, attached hereto.” Hamilton is for against the shall not be used "This admission

537 district Similarly, Dunlap argues that the IV. court, weighing mitigating circum- when the OF CONSTITUTIONALITY 19-2515(g)(8), § against should stances I.C. 19-2515(c) § to the fact given greater consideration have 19-2515(c) § states: felony prior has no record favorably environ- person responds a is convicted of an offense to a structured Where death, may punishable by a sen- which be ment. imposed of death shall not be unless tence (James), 546, 125 Idaho In State v. Pratt (1) statutory at least one the court finds (1993), recently reaffirmed P.2d 800 we 873 aggravating circumstance. the Where of the rule that it within the discretion the statutory aggravating a circum- court finds impose a whether or not to district court stance the court shall sentence the defen- guid- is a sentence of death. “This discretion dant to death unless the court finds that discretion, entirely structure ed Svithin the may mitigating circumstances be which by legislature____’” the Pratt established any presented outweigh gravity ag- the (James), 565, at 873 P.2d at 819 125 Idaho gravating circumstances found and make Sivak, 320, 326, (citing 806 State v. 119 Idaho imposition unjust. of death (1990)). case, 413, the dis- P.2d ad- asserts that the statute fails to trict court that there existed two determined sentencing the the dress standard which beyond aggravating circumstances a reason- weigh mitigating circum- must analyzed able doubt. The district court then against aggravating each circum- stances mitigating various factors and came to Dunlap’s stance. It is contention that mitigating conclusion as to which of the fac- say beyond sentencing court must be able to ag- weigh against tors it each of the would mitigating a reasonable cir- doubt gravating process circumstances. Such a has outweigh aggravating cumstances do not (James), upheld been v. Pratt 19-2515(c) circumstances, and because I.C. (1993), P.2d 800 and State v. require finding, does not such a it is uncon- Leavitt, 121 Idaho

stitutional. The district court then concluded that mitigating -outweigh circumstances did not argument

An identical was considered and aggravating each of the circumstances mak- Sivak, rejected in State v. 105 Idaho ing imposition penalty of the death in this (1983), P.2d 396 wherein we stated: unjust. ease “beyond The a reasonable doubt” standard applies aggravating to the existence of cir- Given that the district court followed the cumstances, process weighing not to the sentencing legisla- structure set forth circumstances, against mitigating them ture, we conclude that the district court which must occur before the sentence is arriving properly exercised its discretion in imposed. Lewis, at its sentence this case. State v. (1993). 123, 336 Idaho 848 P.2d 394 905, reject 105 Idaho at 674 P.2d at 401. We argument by Dunlap the raised for the same rejected

reason we it in Sivak. VI. AUTOMATIC UNDER REVIEW

V. § I.C. 19-2827 MITIGATING FACTORS 19-2827(c), § to I.C. this Pursuant Dunlap required independently contends that the district Court is review (1) incorrectly weighed mitigating various the sentence of death to determine: Specifically, Dunlap argues imposed influence circumstances. whether it was under the court, any arbitrary weighing passion, prejudice, the district when the of or other (2) factor; § mitigating against supports circumstances 19- the evidence the whether 2515(g)(7), given weight finding statutory aggrava should have more trial court’s of a Dunlap’s ting in mental condition and the fact that circumstance enumerated 19- (3) 2515; Dunlap cooperated the the sentence is exces- with authorities. and whether 538 Hoffman, (1993); State v. disproportionate 800 Idaho penalty

sive or to the im- P.2d 123 638, cases, posed considering in 851 934 similar both the P.2d and the crime defendant. case, that, In this the record shows while Ohio, Dunlap shot killed B in already We have determined that the evi- and oíanos findings Dunlap supports trial court’s the neck and head with a cross-bow. dence the felony Dunlap with then took her car and card and headed committed murder the credit later, days specific Approximately intent to kill and that has west. ten after a running money, Dunlap propensity to commit murder which will out of robbed a bank During probably continuing Springs, threat Idaho. the course constitute a Soda Furthermore, robbery, Dunlap pointed a society. there is no indication of sawed-off passion shotgun range a result or a of less than two feet from the sentence was at A prejudice given arbitrary pulled trigger, killing or was based on an her. Crane and subsequent psychiatric factor. evaluation personality, has an explosive reveals that he review, prong Regarding third of our anger. The rage and is motivated and novo a de makes Court determination objects anger generally of his are women. just proportional and whether sentence society general He is threat (1) independently reviewing: after the nature particular. women in of, for, committed; and the motive the crime (2) (3) crime; comparing of the crime and the heinous nature of nature of the defendant this case nature character the defendant. nature with (James), 546, cases,5 State v. Pratt hold that the sen- 125 Idaho 873 other similar we nied, 989, 582, (James), 546, 873 479 U.S. 107 S.Ct. 93 L.Ed.2d State v. Pratt 125 Idaho P.2d Windsor, 410, (1986); (1993); (Joseph), State v. 110 Idaho 716 800 State v. Pratt 125 Idaho 585 denied, 964, (1985), 594, (1993); Hoffman, cert. 479 107 873 P.2d 848 State v. 123 P.2d 1182 U.S. 638, 934; Orr, 463, (1986); L.Ed.2d v. Fetter 851 P.2d State 123 Idaho S.Ct. 93 408 State Idaho 55, v. 766, Weinmann, (1985), (1992); ly, v. 109 710 P.2d 1202 cert. 844 P.2d 684 State 122 Idaho denied, 870, 239, 631, (Ct.App.1992); 836 State 479 U.S. 107 S.Ct. 93 L.Ed.2d Idaho P.2d 1092 v. 616, Thomasson, 172, (1992); Beam, (1986); v. 109 Idaho 710 122 832 P.2d 743 164 State Idaho Brewer, 213, denied, 1153, (1985), P.2d P.2d 526 cert. 476 U.S. 106 State v. 122 Idaho 832 1148 Card, 425, 2260, (1986); v. (Ct.App.1992); 121 Idaho 825 S.Ct. 90 L.Ed.2d 704 State State v. — U.S.-, Stuart, (1985); (1991), denied, 163, Idaho 715 P.2d 833 1081 cert. 113 110 P.2d 273, 321, (1992); Bainbridge, 698 335 v. State v. 108 Idaho P.2d S.Ct. 121 L.Ed.2d 241 State (1991), Piz 245, 742, (1985), remand, zuto, appeal Idaho 787 Idaho 810 P.2d cert. 117 119 680 after - 358, 1268, denied, -, (1990); Aragon, 231 107 U.S. 112 117 P.2d State v. Idaho S.Ct. (1992), Card, (1984); McKinney, part by 107 690 P.2d 293 State v. L.Ed.2d 495 overruled in Paradis, 1088; 180, (1984); 432, at Idaho P.2d State v. at 825 P.2d State v. 687 570 121 Idaho denied, 117, (1983), Enno, 392, (1991); P.2d 106 Idaho 676 P.2d 31 cert. 119 Idaho 807 610 State U.S, 3592, 320, 1220, Sivak, (1990); 82 888 v. 806 468 104 S.Ct. L.Ed.2d 119 Idaho P.2d 413 Gibson, 54, 542, (1984); Paz, (1990), P.2d 118 1 v. 106 Idaho 675 State v. Idaho 798 P.2d State denied, 1220, 1259, 2911, denied, (1983), S.Ct. 111 33 3592, cert. 468 U.S. 104 cert. 501 U.S. S.Ct. 115 Sivak, Card, (1984); (1991), v. 105 part 82 888 State 1074 overruled in L.Ed.2d L.Ed.2d denied, 1088; 900, 432, (1983), cert. 468 at P.2d at State v. Idaho 674 P.2d 396 121 Idaho 825 1220, 3591, Smith, 891, (1990); S.Ct. 82 L.Ed.2d 887 792 U.S. 104 117 Idaho P.2d 916 Creech, 362, 860, (1984); Lankford, Idaho 670 P.2d Idaho 781 P.2d 197 State v. 105 State v. 116 1051, denied, 1032, (1983), (1989), denied, 465 U.S. 104 S.Ct. cert. 497 U.S. 110 S.Ct. 463 cert. 1327, (1984); Leavitt, 3295, (1990); Major, v. 105 79 722 State 803 State v. L.Ed.2d 111 L.Ed.2d Mitchell, denied, 4, 285, 599, (1983); 703 State Idaho 665 P.2d v. denied, Idaho 775 P.2d cert. 493 116 1336, 493, 923, 290, (1989), cert. 104 Idaho 660 P.2d 110 S.Ct. 107 L.Ed.2d U.S. 934, 2101, (1983); remand, 77 L.Ed.2d 308 U.S. 103 S.Ct. appeal after Carter, denied,- U.S.-, (1991), 655 391, 103 Idaho Olin, P.2d 113 S.Ct. cert. Charboneau, (1981); (1992); Idaho 648 P.2d State v. 103 121 L.Ed.2d 368 v. State Osborn, 405, 129, 299, denied, (1982); 631 v. 102 Idaho 493 203 State 116 Idaho 774 P.2d cert. remand, 922, 923, 287, 290, (1981), appeal 104 Idaho P.2d 187 S.Ct. 107 L.Ed.2d U.S. 110 after 809, (1983); Card, Griffiths, (1989), 663 v. 101 part 121 Idaho P.2d 1111 State 267 overruled in Padilla, 1088; State, 163, (1980); 432, State McKinney P.2d 522 v. at P.2d v. 115 Idaho 610 825 at 713, (1980); 1125, (1989), denied, State v. 101 Idaho 772 1219 cert. Idaho P.2d Fuchs, (1979); 3292, 341, 1031, P.2d 227 800 100 Idaho 597 497 U.S. 110 S.Ct. 111 L.Ed.2d 883, Needs, 231, (1990); 591 130 Fetterly, v. 99 Idaho P.2d v. 115 766 P.2d State State Idaho 766, denied, 925, (1979); (1988), Lindquist, 99 Idaho 589 State v. cert. 492 U.S. 109 S.Ct. 701 remand, (1979), 3262, (1989); appeal Idaho Scroggins, 101 v. P.2d 101 106 L.Ed.2d 607 State after 688, (1980). (1985), 1141 cert. de- P.2d 716 P.2d imposed in this case is exces- imposed of in this case is not death sentence tence death my in disproportionate is outlined disproportionate. or sive or excessive concurring dissenting opinion in State v. and judgment court is af- The of district 448-459, Card, 825 P.2d 121 Idaho firmed. my opinion Appended 1104-1115 summary of present updated in case is an Tem., TROUT, J., FULLER, Pro and J. the cases I have considered. concur. I most similar to this one so The cases find Justice, BISTLINE, concurring. specially crime is concerned are: far as the majority’s analysis I concur with the (death penalty imposed). 1. State v. Card cir- only Part II because of the rather odd (determinate Searcy life sen- 2. v. State agreement Dunlap cumstances of the which imposed) tence highly questionable It entered into. is as (death McKinney penalty im- 3. State alone, murder indictment whether Ohio posed). light particularly presumption of the of (determinate Bainbridge life 4. State v. crime, adhering to innocence that Ohio could imposed) sentence finding beyond support a a reasonable doubt Dunlap had committed the Ohio murder (Michelbacher v. Rhoades and beyond and a reasonable doubt he thus eases) (death penalties im- Baldwin possessed propensity to murder. How- posed). ever, pursuant plea agreement Dunlap to the Searcy Bainbridge, the circumstances agreed to the fact that he had committed the mitigating of the defendant were and seem Ohio murder in the event the trial court impose explain why the trial court did not found the Ohio indictment admissible. With penalty. the death On the basis of the com- agreement place, only Dunlap posi- is Rhoades, Card, I parison McKinney, of challenge admissibility tioned to imposed find the death sentence on indictment and related witness statements disproportionate. not to be excessive or evidence, weight rather than the of the once The cases I find most similar to this one so agree majority admitted. I with the that the far as the circumstances of the defendant are relevant, although barely, indictment concerned are: sentencing inquiry as to whether propensity has the to murder and thus is (death penalty im- 1. State v. Pizzuto admissible. posed). (death penalty imposed). 2. State v. Paz JOHNSON, Justice, concurring (death penalty im- 3. State v. Lankford

concurring in the result. posed). I, II, III, IV, parts I concur in and V of the comparison On the basis these opinion. Court’s cases which the circumstances the de- (Automat- I part Dunlap, concur in the result of fendant are similar to I find the VI 19-2827). ap- imposed Dunlap ic Review Under I.C. The death on not to be sentence proach determining disproportionate. I take in or whether excessive

541

545 Idaho, Plaintiff-Respondent,

STATE PRATT, Defendant- Kevin

James Appellant.

Nos. Idaho, Supreme Court

Boise, February Term.

July 27, 1993. notes First, findings. Dunlap the court’s district ease in wrong at 1064. Such is not the used the 564 So.2d argues that the district court 18-4003(d), § “malice I.C. finding Dunlap spe- Idaho. Under in that had standard second, by that the kill, aforethought” is satisfied the fact that the evi- cific intent to perpetration in the finding beyond killing a was committed support not a dence does Lankford, felony. v. 116 Idaho Dunlap specif- had the State reasonable doubt that (1989); Paradis, legislature. any of by 781 P.2d Nor do State intended prior 19-2515(g)(7) § our cases which I.C. applied suggest was that the malice afore- Nevertheless, argues Dunlap this thought duplicat- for requirement murder is analysis degree not fit for the other first does by Accordingly, the (g)(7) ed factor. § 19-2515(g)(7), murders listed I.C. such applied the correct standard district peace officer I.C. as murder of a under finding specific intent kill in this case. 18-4003(b), § murder a or a committed person under for under a sentence murder now turn to the issue of whether We 18-4003(c). argues § Dunlap “mal- support there evidence to a find is sufficient aforethought” ice is not satisfied the cir- kill ing specific intent to had killings as cumstances of these it is with beyond Crane a reasonable doubt. The rec Therefore, felony requirement murder. ord carried a sawed-off shows that § 19-2515(g)(7) prove that the a bank, at shotgun pointed it at Crane into the specific necessarily kill infers a intent range pulled two a of less than feet and heightened degree premeditation. How- trigger, that ex killing her. We have held ever, ignores the argument definition of press found a malice can be when defendant malice. weapon against person in a deadly uses a 18-4002, express 'malice Under I.C.

Case Details

Case Name: State v. Dunlap

Court Name: Idaho Supreme Court

Date Published: Jul 27, 1993

Citation: 873 P.2d 784

Docket Number: 19928

Court Abbreviation: Idaho