State v. Fetterly

P.2d 1202 Idaho, Plaintiff-respondent, STATE of

v. FETTERLY,

Donald Kenneth

Defendant-appellant.

No. 15419.

Supreme of Idaho. Court 28, 1985.

Oct.

Rehearing Denied Jan. 1986. defendant-ap- Bishop, Nampa, for

Van G. pellant. Jones, Gen., Atty. Lynn E. ment. In the statement

Jim admitted Thomas, Gen., Boise, plaintiff-re- Grammer, Sol. killing but claimed that he could spondent. actually stabbing not remember Grammer. trial was set for defendants’ Decem- BAKES, Justice. Prior ber 1983. to trial the case re- Appellant Fetterly appeals from Donald coverage newspaper ceived extensive which degree a conviction for first murder and crime the contained details of the rela- imposition penalty. the of the death tionship Fetterly between and Windsor. 7, 1983, September Sterling On Grammer coverage also in- The extensive contained was stabbed to death Caldwell. Five Fetterly’s formation as to and Windsor’s later, Fetterly Karla days Donald previous fraudulent use of a arrest for charged degree with first Windsor card, outstanding against warrant credit an murder, robbery, deadly weap- and use of a Fetterly writing a check with insuffi- on. funds, probable motive for cient the Gram- Fetterly had be- record reflects murder, opinion of mer’s and the the Can- through acquainted come with the victim yon County prosecuting attorney as to the ex-mother-in-law, Fetterly’s Hogan. Violet credibility validity the evidence. 6, 1983, evening September Fet- On change Fetterly filed a motion for of venue terly and Windsor entered Grammer’s or, alternative, a motion for selection intending person- home to steal Grammer’s jury county Canyon. of a from a other than belongings. They remained Gram- al pre- Each motion focused on the extensive mer’s home until Grammer returned case, alleging publicity given morning. Although it is some- following publicity deny Fetterly a fair transpired what unclear what events fol- by the trial. Both motions were denied return, lowing Grammer’s Grammer’s trial court. taped eventually hands were behind his taped feet were also to- back. Grammer’s filed, pretrial motions were Several other tape wrapped about gether, and duct was the trial including a motion to sever re- face. Grammer then stabbed his defendants, suppress a motion to Fet- two body lifeless peatedly. Grammer’s statements, sup- motion to terly’s and a River, where it was dumped into the Snake Fetterly’s criminal Ad- press prior record. 9, September Fetterly and found on 1983. ditionally, a motion was made to sever truck, car, pickup took Windsor Grammer’s Fetterly’s Windsor’s defense from due personal of these and other items. Some granted the conflict of interest. The court by Fetterly Wind- were later sold items trial, suppress Fet- motions to sever the sor. record, and to allow with- terly’s criminal 10, 1983, Fetterly and September On from Windsor’s defense. of counsel drawal driving apprehended while Windsor were Fetterly’s suppress state- The motion to truck. Grammer’s denied. ment was pre- had also Fetterly and Windsor Since 7, 1983, days five before On December car, viously driving seen Grammer’s been trial, compel dis- Fetterly motions to made asked to reveal the location of Windsor was time, for continuance. At covery and questioned Grammer’s car. Windsor was reports lab Fetterly alleged that forensic prior car as to the location of Grammer’s made available to yet not had rights. After be- being read her Miranda motion were Arguments on this defense. car, of the ing questioned as to the location 9, 9, By 1983. December set for December Fetterly. The two asked to see Windsor 1983, requested Fetterly received had other and defendants then talked to each was de- continue reports. motion to A joint Mi- agreed to make a statement. Decem- began on then Jury nied. selection warning was read to each of randa 12, making this state- ber 1983. prior to their defendants 15, 1983, ground for reversal.” v. jury On December returned State Thomas, 432, 94 Idaho at 489 P.2d at 1312. finding Fetterly guilty burgla- a verdict theft, ry, grand degree and first murder. determining In whether a criminal de- degree finding Fetterly guilty In of first trial, a fair will fendant received this Court murder, degree found both first consider premeditation murder with and first de- indicating prejudice or an “affidavits 18-4003, the felo- gree murder under I.C. § prejudice community absence of ny murder statute. tried, where the defendant was testimo January psychological jurors ny On ex- at voir dire as to wheth formed an amination of was ordered. Notice er guilt or innocence based penalty of intent to seek the death defendant’s pretrial upon publicity, adverse whether January aggravation filed 1984. An challenged for cause hearing the defendant mitigation was held on Febru- selected, 23, 24, 1984, jurors finally the the nature of ary February 1984. On Fet- pretrial publicity, of the and content terly was sentenced to death for first de- elapsed of time time the amount from the gree given an indeterminate murder and pretrial publicity the trial it of the to five-year burglary sentence for and an in- v. 108 Idaho Bainbridge, self.” State fourteen-year determinate sentence for 273, (1985) (quoting P.2d 335 theft, 698 grand consecutively. to be served A Needs, 883, 890, v. 99 Idaho 591 State findings pur- death warrant and were filed (footnotes omitted). 130, (1979)) P.2d 137 Fetterly appeals suant to I.C. 19-2515. § judgment death of conviction and the indicating prejudice No affidavits or an sentence. prejudice community absence of During were submitted. voir dire each juror extensively questioned to deter- Fetterly that court contends the trial degree exposure of their mine the to in denying abused its discretion his motion pretrial publicity. jurors Those who had change Fetterly venue. maintains for a of publicity to the were further exposed publicity prior that the extensive to trial they questioned to determine if had formed deprived opportunity him of the to be tried guilt as to the or innocence of an impartial jury. disagree. before an We the defendant. Fetterly did

The decision as to whether or not to The record reflects that challenge any jurors cause grant change for a of venue lies not a motion selected, Fetterly finally court. nor did use all of within the discretion of the trial 430, 432, challenges. Thomas, per Waiver of peremptory 94 Idaho 489 his State v. Bitz, 1310, (1971); challenges has been found to indi emptory v. 93 P.2d 1312 State 374, (1969). 239, 242, panel with the chosen. cate satisfaction Idaho 460 P.2d 377 899, Brooks, 892, 103 Idaho appears that the defendant ac State v. See “[W]here The dis (Ct.App.1982). 105 there P.2d tually received a fair trial and that Fetterly’s denying err in selecting court did not difficulty experienced in trict was no change of venue.1 change venue is motion for jury, grant of refusal gentlemen, any of Ladies and newspaper "COURT: reviewed the articles 1. We have anything happen approached, dur- publicity, or did question under and do not find the change your case, ing evening that would recess prejudicial. this to be Most the facts of juror impartial ability published to sit as fair coverage three of the crime was jurors Further, (Whereupon all indicated matter? prior to trial. months problem.) no they there was questioned had seen the as to whether night No one was confronted coverage published "COURT: newspaper before information, nothing was heard or read Specifically, the record reflects the trial. anything nature? of that media or shortly news a.m. on December after 9:00 jurors had no (Whereupon indicated all presented, evidence was the follow- before problem)." ing exchange occurred: II knife. showing There has been no how the failure to produce essentially unidentified Fetterly contends that the trial scientific laboratory reports shortly until court abused its denying discretion his impaired before ability trial the defendant’s motion for a argument continuance. This prepare his Accordingly, defense. we change is an extension of his venue find no error resulted from the trial court’s argument. Fetterly argues that the trial grant refusal to a continuance because judge granted should a continuance to alleged delayed discovery. allow harmful press coverage to dissi However, pate. above, stated there is Ill

every impartial jury indication that an empaneled Fetterly fair received a Although Fetterly acknowledges Accordingly, trial. judge the trial did not rights prior was read his mak- Miranda by refusing abuse his discretion to resched ing joint statement, Fetterly alleges ule the trial. being questioned prior that Windsor was rights. argues her read Miranda He Fetterly' argues also that a continuance agreeing Windsor was thus coerced into been granted should have because his de- joint amake statement. concludes prejudiced by delayed fense was dis- brought that this psycho- stream events covery laboratory reports and the him, pressure logical inducing to bear on upon court’s failure to rule admissibili- agree joint him to to make the statement ty shortly his confession until before talking after with Windsor. argument that essentially trial. His is shortly since he did not until before know argument defendant’s lacks merit going trial his was to be that confession First, for at is least two reasons. there admitted, physical “the evidence and labo- nothing in support appellant’s the record to ratory absolutely results would have been argument alleged that the of violation tying apart- the critical to defendant to the rights Windsor’s induced him to Miranda deceased____” ment of the statement, agree joint to make a which rights. somehow his violated constitutional However, the defendant has not set prior co-de- record does reflect that to of evi any particular physical out claim fendant of her Mi- being Windsor advised laboratory dence results which were de rights, randa she asked about the was There .federal nied him. were no state or car, gave of and she location the victim’s trial, reports lab introduced as exhibits at police phone the the officers number only laboratory technician the forensic home car was located. employee, person was a Pamela at whose the who testified state was questioning of Windsor Server, tape No further who testified that the duct of her until she had been advised the had taken made after removed from victim question- initial rights. Miranda After the tape duct found the victim’s from rolls of car, ing to location the Windsor bedroom, the of belonging items to and various speak Fetterly. to to The statement It asked Type had 0 blood on them. the victim appellant Fetterly later or which she and established at whether was never blood, questioning the Type had made was not connected to not the victim Grammer 0 the the of the car. After Wind- significance was no at location and that fact of Further, Fetterly, had conferred both trial. the defendant’s confes sor with sion, joint to Both agreed give to be statement. which the trial court found warnings admissible, given then the used the were Miranda admitted that he statement, making which prior to their tape own duct which he found victim’s only appellant Fetterly’s statement premises to and was the bind the victim’s hands care- police that time. We have prior stabbing him to with a to the at feet to death agree court’s exercise with the district Having ing surround- we must considered the circumstances publicity, steps pretrial taken to its discretion. of trial, received ensure that the defendant a fair

771 rights joint no to hold fully reviewed the entire record and find cess state- support appellant’s allega- completely evidence to ment inadmissible. We dis- inquiry the initial to his agree. tion that co-defend- prior being to ant Windsor her advised Although question pre has not any rights upon

her effect Miranda Idaho, viously other jur been addressed subsequent post-M'rcraeia his statement. editing allow of a defendant’s isdictions agree judge the trial that We with editing statement when the will not mislead any psychological record is void of “[t]he State, 319, jury. Hager v. P.2d See 665 brought upon de- pressure bear Bird, (Okl.Crim.1983); v. State 59 Or. 324 only There offi- fendants. one 74, 949, (1982); P.2d 951 App. 650 State v. present, they given period cer were (1980). Purdy, Kan. 615 P.2d 131 228 other], they speak time each [to Here, Fetterly has shown the edit not other, to confer with each were allowed misleading. is ed statement stop they were allowed statement giving at they were statements or the Idaho, barring exceptional In cir they upset by the time were nature cumstances, incriminating confessions or going There the statement on. suspect being made after statements just point no at indication at all rights his are admissible. informed of pressured or coerced 42, 46, Larsen, v. 91 Idaho 415 P.2d State way.” (1966). Here, excep we no find Furthermore, in the recent decision Fetterly voluntarily tional circumstances. Supreme Court in the the United States joint agreed make the statement and — Elstad, -, Oregon v. case U.S. prior rights was informed his Miranda (1985), 105 S.Ct. 84 L.Ed.2d Further, the statement. making suspect that “a Supreme Court concluded statement, only edited which was make responded yet who has once to unwarned statement was not certain that Windsor’s questioning thereby dis uncoercive against Fetterly, ensuring thus used waiving rights his and confess abled process, accorded full due ing given requisite he the after has Thus, having trial. objected was not to at — at-, warnings.” 105 Miranda U.S. record, we find no fully the error reviewed appellant the at 1298. In case S.Ct. editing Fetterly’s in the trial court’s of his “un Fetterly complaining of own statement. yet questioning,” but warned uncoercive outside of his that of co-defendant made V Elstad, presence. Oregon The result in v. jury Fetterly maintains that the was appear to be even more com supra, would felony on the mur erroneously instructed After pelling under these circumstances. argues burglary if a was rule. der He examining totality of the circumstances the committed, complete was burglary be the statement, the surrounding making of the his arrived at home. fore the victim voluntarily was we find that the statement made. brief, points out its “The As the state Fetterly urges upon narrow construction

IV felony murder deprive the Court [the validity unless the victim objects editing of his Fetterly also rule] leg burglar had one over joint killed while judge edited the statement. The trial statements, across the or one foot statement, windowsill deleting Windsor’s po- agree with the state’s We only Fetterly’s answers threshold.” to ensure that part of a death was Fetterly con- Grammer’s into evidence. sition. would be read began evening which into of events read evidence stream tends that the statement entered Grammer’s Fetterly Windsor misleading. incomplete argues He day when following ended the his only preserve pro- due home way 772 possessions were judge’s finding

Grammer’s removed a statutory aggravat- circumstance, (3) ing the home. and whether the sen- disproportion- tence of death is excessive or the penalty imposed ate to cases. similar VI We findings believe that the of the agree Fetterly Nor do we with court, considering penalty trial the death photo that the admission into evidence of 19-2515, under I.C. reflect a rational dis § graphs preju of the deceased constituted passionate evaluation of the circum factual general photo dicial error. The is that rule stances of thor the case and demonstrate a graphs prosecution of the in a victim ough consideration of all of the relevant are, homicide the trial at the discretion of produced sentencing evidence at the hear court, v. admissible into evidence. State ing. There no indication sentence 691, Martinez, 183, 188, 92 Idaho 439 P.2d imposed pas under influence (1968). photographs may 696 Such aid sion, prejudice arbitrary other understanding arriving at a fair factor. Having photo the evidence. reviewed graphs, aggravating we find no abuse of the The found circumstances by the amply supported the trial court are court’s discretion allowance the de- record. trial court found that photographs. fendant on the entered the victim’s home 6, express evening September for the VII taking property purpose the victim’s Lastly, Fetterly argues that money which he to obtain to live could sell procedure penalty Idaho death is unconsti on. The in the home defendant remained Idaho’s tutional. maintains that victim, overnight, waiting for the who Constitution, 7, jury- mandates a Art. § him, befriended to return home. When imposed has death sentence. This Court returned, head, was hit victim over Fet previously addressed the issues which wrists, tape with around his bound duct Sivak, terly raises v. 105 here. See State eyes and legs, tape placed over his (1983); v. Idaho P.2d State him, and over his mouth to silence even Creech, (1983). 105 Idaho 670 P.2d 463 ultimately asphyxi- nose which would have position continue stat We to adhere savagely ated him. Then the defendant Sivak, find the ed in both Creech “body than five stabbed the victim’s no less penalty procedure Idaho death to be consti times, only organs, but severing not vital tutional. (ster- completely cutting the breastbone num); and with the force was intentional VIII strength.” body was considerable 19-2827,2 is throwing Pursuant to this Court callously disposed by I.C. of then § penal the of also imposition to review the death The trial court into the Snake River. killing, sentence of death hours after the ty to determine found that “several if.the in on (1) normally of set imposed the influence when under and shock being, arbitrary average the defendant prejudice any the human passion, or other home, gathered factor; (2) supports back to victim’s the evidence went the whether (1) im- death was the sentence of death Whether 2. "19-2827. Review of sentences —Pres- preju- (a) passion, posed dice, death under the influence of of Whenever the ervation records. — factor, arbitrary and upon judgment be- penalty imposed, or other is and the court, judge’s (2) supports the coming shall evidence trial the sentence Whether the final in the statutory aggravating circum- by Supreme finding Court of reviewed on the record the ____ among in sec- those enumerated of Idaho. stance from Code, 19-2515, and Idaho tion (b) Supreme of shall consider Court Idaho (3) excessive of death is Whether the sentence enumerat- punishment as errors as well imposed penalty in disproportionate to the or by way appeal. of ed (c) cases, considering both the crime similar regard court shall the sentence the With added.) (Emphasis the defendant.” determine:

773 disproportionate is or belongings of death excessive up the and commenced victim’s cases, in imposed con selling though penalty noth- similar them around town blatantly openly sidering crime the defendant. ing happened; both the record, though with cases3 with the Comparing victim’s vehicle as these drove the findings support in permission.” trial court’s report penalty, pre-sentence death trial court further found case, the sentence this we conclude that been the crime had the commission disproportionate case imposed days planned as much as two or three imposition in which the other cases supports above The evidence advance. approved. has penalty the death which conclud findings from court judgment of the district heinous, Accordingly, especially murder was ed that penalty af- imposing the death cruel, court manifesting exceptional or atrocious firmed. murder the cir depravity; surrounding its

cumstances commission hu disregard for defendant exhibited utter J., C.J., SHEPARD, DONALDSON, life; murder commit man and that the concur. i.e., felony, ted in commission of spe accompanied by burglary, and Justice, HUNTLEY, concurring specially. cause the death a human cific intent majority I concur in the supports the trial being. amply The record except my reservations rela- save and finding aggravating cir court’s those failing to constitutionality tive to the cumstances. capital sentencing involve the pri- which reservations ex- Finally, process have reviewed our we 900, Sivak, v. 105 Idaho State pressed whether the sentence or cases to determine Standlee, 856, (1974); v. 96 we 522 P.2d 64 State 3. Those cases have considered include: 165, (1974); Foley, P.2d 360 State v. Idaho 525 273, Bainbridge, P.2d State v. 108 Idaho 698 335 222, (1973); P.2d v. Idaho 506 119 State 95 358, (1985); Aragon, Idaho P.2d State v. 107 690 267, Beason, (1973); P.2d 1340 95 Idaho 506 180, (1984); McKinney, 293 State v. 107 Idaho 124, Atwood, v. 95 Idaho 504 P.2d 397 State Paradis, (1984); Idaho 687 P.2d 570 State v. 106 Sanchez, 125, (1972); Idaho P.2d State v. 94 483 323, 117, Gibson, (1983); 106 676 P.2d 31 State v. Gomez, (1971); v. 487 State 94 Idaho 173 54, Sivak, (1983); P.2d State v. 105 Idaho 675 33 698, Dillon, (1971); v. State 93 Idaho P.2d 686 Creech, 900, (1983); P.2d State v. Idaho 674 396 942, (1970), den. 401 U.S. 91 471 P.2d cert. 553 362, (1983); v. 463 State 105 Idaho 670 P.2d 947, (1971); 223 State v. Rada L.Ed.2d S.Ct. 28 4, (1983); Major, v. 105 Idaho 665 P.2d 703 State 727, (1970); 471 baugh, P.2d 582 State 93 Idaho Mitchell, 493, (1983), 104 Idaho 660 P.2d 1336 286, (1969); Rodriguez, Idaho 460 P.2d 711 v. 93 934, 2101, 77 cert. 461 103 den. U.S. S.Ct. 140, Jiminez, 456 P.2d 784 v. 93 Idaho State (1983); Carter, v. 103 Idaho L.Ed.2d 308 917, State 87, State, (1969); King 93 456 P.2d 254 v. Idaho Olin, (1982); P.2d 434 State v. 103 655 152, Gonzalez, (1969); Idaho 438 v. 92 State 391, (1982); 648 P.2d 203 v. Stor Idaho State 629, (1968); Chaffin, v. 92 Idaho State P.2d 897 moen, 83, (1982); Idaho P.2d 317 State 103 645 State, (1968); Carey 91 Idaho v. 448 P.2d 243 706, 405, Osborn, (1981); v. 102 Idaho 631 P.2d 187 Koho, (1967); v. 91 State 429 P.2d 836 163, Griffiths, State v. 101 Idaho 610 P.2d 522 450, (1967); An P.2d 1004 State v. Idaho 423 Padilla, 713, (1980); v. Idaho P.2d State 101 620 341, 169, stine, (1966); v. 418 P.2d 210 State 91 Idaho Fuchs, (1980); 286 State 100 Idaho 597 v. Gish, (1964); v. 393 P.2d 342 State 87 Idaho Needs, (1979); P.2d 227 v. Idaho State (1961); Clokey, 364 P.2d 159 State 83 Idaho (1979); Lindquist, v. 99 Idaho P.2d 130 State 395, (1958); Burris, 265 Idaho P.2d v. 80 331 766, (1979); Bradley, 101 98 P.2d State v. 589 266, Snowden, 706 v. 79 Idaho 313 P.2d State 918, (1978); P.2d v. Birrue Idaho 575 1306 State 365, Buchanan, (1957); 252 v. 73 Idaho State 631, ta, (1977); P.2d 868 State v. 98 Idaho 570 394, Owen, (1953); 73 Idaho State v. P.2d 524 Allen, 782, (1977); Idaho P.2d 885 State 98 572 (1953) (considered only of in terms 253 P.2d 203 Ward, 571, (1977); Idaho v. 98 569 P.2d 916 imposed; penalty over crime committed 516, Gerdau, State v. P.2d 1161 96 Idaho 531 Shep point law in State v. ruled on substantive Powers, 833, (1975); P.2d State v. 96 Idaho 537 227, herd, (1971); State v. 486 P.2d 82 94 Idaho 881, 1089, (1975) 96 S.Ct. 601, 1369 cert. den. 423 Pettit, (Ct.App. U.S. 767 P.2d 104 Idaho 661 283, 99; Hokenson, 199, 47 State v. 96 Idaho L.Ed.2d 1983); Fenley, P.2d Idaho 646 State v. 103 Hatton, (1974); v. Idaho 527 487 State 95 1982)). P.2d (Ct.App. 441 774 Creech, specifi- The motion (1983) jury from elsewhere. v. P.2d 396 State

674 granting (1983). one the of which 362, cally was not P.2d 463 Idaho 670 away itself moved the trial would have Justice, BISTLINE, concurring specially. County, but would have en- Canyon from judge trial and counsel only that the tailed September complaint was filed The only long enough to select a go the road on later, day, to the the 1983. Three months citizenry county of another from the jury juryA was selected and trial commenced. prejudicially subject- which had not been so on December shortly p.m. after 5:30 sworn newspaper accounts. ed to such excused jurors The were then 1983. 13th; appears that explanation the which surfaces for only until 9:30 a.m. on transcript approxi- in the of sequestered. At denial is found they were not the hearings on November 28: Tuesday, pretrial December motion mately 10:00 a.m. 13th, All evidence Honor, regard the trial commenced. Your MR. BISHOP: the next sides rested on change was in and both of venue and/or the motion for to 14th, shortly selection, December it has been the day Wednesday, I believe jury — excused, requests to p.m. jurors were of the Court such practice after 3:00 jury, for the attempt acquire 10:42 a.m. on sequestered. At first and not motions and set- 15th, filing those jury purpose the of December Thursday, them, right. room, ting preserve by 12:46 brought into the court instructed, counsel will be denied p.m. jury had been Those motions COURT: out to the Court does up, jury prejudice and the sent because had summed without concerning of trial required four at the time examine consider its verdict—which expensive trial. that. long It not a hours. less probably consume

A second trial would Tuesday, morning December of On time. 13th, been selected on jury after counsel renewed previous day, defense even shorter have been an It could the motion: stipu- and the defense prosecution had the you have a mo- newspa- I understand as evidence the COURT: lated into evidence tion, Sterling Bishop. killing Gene Mr. of per accounts of important Honor, was little of at this There Grammer. Your MR. BISHOP: selected, which had not and I at trial jury evidence introduced has been time the newspa- change of in the for previously produced the motion been renew points radio the television and the cite likely by and would pers, venue previously are Those accounts which have been as well. broadcasters authorities record, having offered docu- been submitted. in the change for supporting a motion addition, mentation that the mo- ask I would In witnesses, the accounts just because which venue. Not for exclusion tion defendant, but be- I would prejudicial granted, but already has primarily time stemmed at this those accounts excluded cause be ask grant- attorney, argument. prosecuting during opening from change venue motion for ing of the for motion deny the I will COURT: my re- From granted. have been should change venue. that mo- record, the denial view of the court’s belief up the trial Which sums error- in otherwise the one error tion was obtained, suffi- jury if can cou- the denial other than proceedings, less change for a any reason dispells ciently non-sequestering of pled with the Bakes, today’s writing for Justice venue. reservations with serious leaves me trial court’s error sees no majority, ruling as well. the latter county, another jurors find refusal Brooks, 103 Idaho v. citing record State find in the which I can Nothing proposition (1982), P.2d 99 rea- trial court’s satisfactorily explains the been challenges has peremptory of “waiver selecting the reasoning for sons and of pan- know in a criminal case the burden with the found to indicate satisfaction Conversely, suppose, prove so would is the state Idaho to proof el.” one of peremptory challenges would any guilty beyond exhaustion of in defendant case panel cho- establish dissatisfaction with in doubt. The defendant a reasonable agree postulate. either sen. do not presumption any enjoys criminal case counsel, that prospect Trial faced with the innocence, right remain to silent. of favor change venue has been denied in a of upon the defendant to There is no burden belief judge’s of the trial determination and posi- in you so if are a prove anything, produce panel from the local that can a have an you where formed tion reality that citizenry, up have to face to the that you what read or heard or felt from believing so deter- judge an and so able leaning position that a or a there was so, At that mined do and will do so. can take evidence have that would you taken time, experienced go point counsel will in overcome, forcing you’re the de- to then they perceive to be the best of with what type some come forward with fendant to reading who an entire lot have all evidence or evidence to rebut of prosecutor’s case about iron-clad contrary feeling you to the have. That against guilty It is in order defendant. has, rights a fundamental defendant majority to observe some factors which the jury. sit on this you should not One, consequence. little sees of no or Again you mere have heard fact preliminary to what he termed remarks something this or read about case or recog- judge trial voir dire examination the you any disqualify case does not as (knew with) acquainted nized or was most people want juror. We well-informed jurors. Many had potential of the of them Again, you if jurors. sit as were the to prior jury at experience had criminal trial defendant, of or the what State Idaho Tr., 5, p. of 6. the same term court. Vol. looking juror hope- they’re is a Two, if he felt he then advised them that present fully represent your would frame jury, jurors comfortable with the judgment of this of mind that could sit Tr., sequestered. p. not be Vol. 8. Un- We any prejudice. case without bias or having doubtedly gained their attention any a decision in criminal cannot make confidence, in a he addressed them any feeling of sympathy, case based on way my attorney’s en- which to mind prejudice. or should be elimi- bias Those couraged precon- to any them not admit Tr., your thinking. Vol. nated from guilty what ceived notions because of 10-12. pp. or had heard read: preliminary re- At the conclusion you’re going area to have Another itself the voir dire opened marks the court thinking question is a jurors of the twelve who examination you whether or not have read or heard been seated: dis- anything about this case that would you Have COURT: sitting qualify you juror. from anyone purported to who box talked you have or heard might mere read fact case, purport- anything about this know something about this case not dis- does con- any personal information ed have qualify you juror. as a that were If cerning this case? society, may we have fact (Whereupon juror Lorinda Norton all tendency eliminate well-informed hand.) raised her it. people. purpose That is not the going to discuss I am not COURT: good We want to have a cross-section do However, right from now. that with community. disqualify What does heard, dis- what was you have or what you might if have heard read or you formed you, have cussed with already ease about this guilt the innocence opinion about opinion that evi- formed some would take way, saying which Now, without the defendant opinion. dence to overcome no, Have Norton. cases, say yes or Mrs. just your experience prior 776 opinion guilt opinion or

you you formed an about the an that would form take evidence to overcome? innocence of the defendant that would you (No If response.) take evidence to overcome? defendant, of Idaho or the State you expressed None of have COURT: you person your present

would want a guilt opinion an about the innocence or judgment frame of mind to sit in of this any person? the defendant to third case? (No response.) so, think no.

MRS. NORTON: don’t you expressed None of COURT: guilt stipulate counsel that Lo- an about the innocence or COURT: Do any person? the defendant to third may step rinda Norton down? (No response.) stip- MR. HARRIS: The state would so ulate. anyone Is there seated COURT: box, jury going question back to the would

MR. BISHOP: defendant concerning read the issue of the death Tr., 5, agree, p. 14. Your Honor. Vol. such penalty; anyone is there that has George seat A Solis took Linda Norton’s religious scruples that or conscientious hearing prob- was excused because of a but reaching prevent you would such a call lem. The court then asked the clerk to though the evidence would verdict even juror sitting in the out the name of another warrant it? box, raising Engum. Upon a Mrs. her (No response.) recognition, gaining hand and the court’s anything Is there about the COURT: sought hardship she excuse from any create hard- time element that would duty, but was denied. David Knowlton hardship, just hard- ship, any undue place of Mr. was called to take the Solis. ship, any hardship any for but undue by being singly While he was examined you? court, shot-gun all the court decided to (No response.) which presently impaneled, those then added). Tr., pp. (emphasis 19-20 all-encompass- Vol. would be done with rather ing questions: from the With the benefit of those remarks anything that surprising

COURT: Has there been that those judge, trial it is not we have so far that creates prospective jurors fairly good discussed conscience guide- like to problem comply or with the Brooks were able to only statement of respond requiring to? line of “the ability objec- juror assuring each their MR. No. KNOWLTON: tively guilt issue of or inno- determine the juror have been a be- COURT: You presented in the trial.” cence on the facts fore? P.2d at 105. The 103 Idaho at 655 MR. Yes. KNOWLTON: judge “A must observed that Brooks Court press- no immediate COURT: There is light rely assurances in be able to on such going are ing problems at home press free pervasive influence of the about? to be concerned about or worried at daily lives.” 103 Idaho our No. MR. KNOWLTON: parallel to that statement P.2d at 105. A anyone Have talked COURT: not to be careful judge “a should anything about purported who to know Here, we encourage those assurances.” this case? prepar- judge remember that must No. MR. KNOWLTON: examination ing jurors for their these going through I am COURT: counsel, only defense counsel of whom so I can questions panel to the as a whole Moreover, most misapprehensions. disqualifications obvious ferret out experience have limited attorneys of even dire. gowe to counsel to voir before many prospective understand that come to the notion acquired jurors somehow have any- you read or heard Have unAm- in some manner wrong that it thing about this case that has caused on “A. No. opinion an based have formed erican to inclined to reporting hence are media —and news articles would “Q. None it. not confess create that inference? set, interesting stage With the so all. “A. Not at the voir dire examination how observe in any problem “Q. you have Would effectively ren- been counsel had defense presump- full benefit giving him the elicited meaningless by the answers dered tion of innocence? prior examination of the court’s jurors: what- problem with that I have no “A. soever. OF DIRE EXAMINATION VOIR pass Mr. Ross I would “MR. FOUSER: ERNEST ROSS cause. BY MR. FOUSER: “Q. you anything know about Do you than what this case other facts of OF DIRE EXAMINATION VOIR Judge today from in the courtroom

heard COLLINS FLOYD Lodge? in what out the Caldwell BY MR. FOUSER:

“A. Just came here in I live Caldwell. Tribune. Simplot? “Q. for J.R. You’re a foreman “Q. you take the Press-Tribune? Do “A. Yes. Yes, “A. we do. days five as a “Q. you had to sit for If you read “Q. the last time When was matter, any that cause in this would juror in the Press-Trib- about this case anything your employment? hardship with une? work just make the boss “A. It would Well, I September, and “A. this was in more. I don’t harvesting, and of times do lots words, you’re going “Q. In other well, get I don’t paper read until— work, to the but listen worry your about fact, I a matter of home until ten. As progresses? as it time it came out didn’t read it the first right. “A. That’s on, I paper, just later did. I of news? “Q. your What is source

“Q. you from what Tell us what recall you read a little bit about understand paper? you read case. I read the really. “A. When did Not eleven, just Well, upcoming I trial and just or

paper, it was 10:30 “A. know, bit, all you through it a little dates. scanned just through it.

I did was scan pa- of the local “Q. you read one Did say that from “Q. it be safe to Would pers? any you have not formed you

what read Yes, paper. Press-Tribune “A. guilty not Don is as to whether or know you what tell us “Q. you Can against him? charges innocent of the or paper? the case about No, opinion. formed an “A. I’ve not people Well, two just there is- “A. you in “Q. It not influenced has the crime. charged way? might facts that “Q. you Do recall “A. No. papers? have been stated “Q. the fact that Don has Would Well, and stuff. the date “A. charged with this crime create arrested said may have “Q. papers What he is feeling mind your an inference place? took guilty? probably Well, Well, just “A. what out guy killed came several “A. robbed, dumped body and his really, ago. But remember months can’t river. what about it. Just heard. will How “Q. “Q. influence anything recall Do what

juror? case, about the can tell me heard anything you heard? I don’t think it mil. “A. put “Q. You be able to that out Well, “A. I believe a case it’s where evidence, mind and listen to your Caldwell, man there was a murdered you your only on what hear base decision know, that’s I and he was found all you than

in the courtroom rather what river. past? in the have read “Q. you the fact read this or Would Right. “A. you Don heard make think that is this you “Q. you promise likely guilty us could do than probably Can more not guilty? that? You bet.

“A. No, “A. to hear both sir. would want sides. you judge this “Q. Would be able you and not let on the facts before case “Q. require any you us at time Would you? criticism

fear of affect that prove you Don is innocent? Well, do, is that’s all we could “A. “A. No. judge it on facts.' “Q. understand that the burden of You “Q. be afraid of what You would not attorney? prosecuting proof solely on might say after it all over? someone “A. Yes. “A. No. “Q. prove every And that if he doesn’t “Q. Would the fact that defendant judge crime will element of the at the scene where this Don crime, on the elements of the you instruct place your mind that killing took infer doubt, you beyond that would a reasonable first-degree murder? guilty acquit have Don? No, fact, just no. “A. not that “A. Yes. questions, further FOUSER: No “MR. Davenport? “Q. you related to Mel Are you. thank No,

“A. sir. I have don’t believe “MR. FOUSER: DIRE OF EXAMINATION VOIR you. questions. Thank further HAZEL DAVENPORT MR. FOUSER: BY you have morning. Do “Q. Good OF DIRE EXAMINATION VOIR any of the crimes feelings

strong DAVID KNOWLTON that would affect charged Don that impartial fair and ability to sit as your BY MR. FOUSER: juror? before, and I “Q. you talked with I have “A. No. questions to most know the answers anything about this “Q. you read Have I am curi- past, but given you have the news media anything on What, heard anything, you do know case or ous. if Lodge has Judge told what You said than the news? other case about this morning? you know know much. Do you didn’t anything? much. I’ve heard “A. “A. No. some?

“Q. Have heard Don, against “Q. Knowing charges “Q. on anything not heard You have murder, is, the most im- or TV? radio least; portant charge, at “A. No. him a fair and im- any problems giving “Q. realize that all of the elements You partial trial— proven beyond must be of the crime charge? “A. On that convict reasonable doubt before could charged, you? don’t crime Yes. “Q. “A. Yes. No, “A. sir. Don, “Q. charge Knowing against charged “Q. The has been fact he is, burglary first-degree murder and trial, brought to accused a crime charge, would of those and theft might there an inference does create is, you; create

'present problem it, where there’s something be such your mind that must an inference in there fire? smoke there’s something to it or he be wouldn’t no; Well, I’m concerned “A. far as charged? time; put let me it he is innocent at this “A. No. way. that “Q. be you So would able to hear judge this “Q. You able to case will be open ease mind and consider fairly with an produced solely and evidence on the facts the evidence? else, nothing in here this courtroom “A. Yes. nothing might have heard or you that read? pass We would Mr. “MR. FOUSER: cause.

Knowlton for Right. that. “A. I can do you, Mr. Rohr-

“MR. Thank FOUSER: Mr. Rohrbacher pass would bacher. We DIRE VOIR EXAMINATION OF cause, for Honor. Your DANIEL ROHRBACHER BY MR. FOUSER: “Q. morning, Mr. Good Rohrbacher. OF EXAMINATION VOIR DIRE something paper

You you said read in the HOAGLAND VERNON yesterday? BY MR. FOUSER: Well, excerpt in “A. there was a short if it paper. I’m not sure was this one. “Q. you Hoagland, you Mr. said read a It district was had to do with the court or papers in the heard little bit about this trials, going holding two and I as- to be you something case. Can re- about be this one and another one. sume it would you anything specifically that read member or heard? “Q. Was that the Press-Tribune? prob- long ago. I Well, so “A. it’s been have in the “A. I believe it could been forgot was. ably what it might have in the

Statesman. That There paper. I don’t know. Statesman “Q. anything? read You not have stating I one article read just this little article Well, that “A. other than going to be held district court I told Press-Tribune that was were be going cases that to there were two you about. tried, it. that was about anything from “Q. you Yes. Do recall that, “Q. your than to recollec- Other that article? tion, you reading anything do recollect specific. Not “A. particular case? about this might any facts it, “Q. How about “A. No. I wasn’t familiar facts? purported been stated have sir. “Q. of the elements this crime “A. If one No. not to proven murder were glanced “Q. just over it? You doubt, you you beyond reasonable would “A. Yes. hesitancy returning a verdict have “Q. say to at this it would be safe So guilty? not one you formed point No, “A. I don’t so. believe way other this case? or the about “Q. you I tell ele- don’t want to “A. No. judge’s job, but ments because that’s the “Q. anything about the back- Is there sure will some instructions I’m there you feel would make it hard ground that you any- you Have read given that. you give impartial a fair and Don thing papers about case? trial? Well, “A. little bit. “A. so. I don’t believe “Q. anything you you Do remember that, “Q. say you in the you If felt about it? voting have read minority other jurors were all way, you one do think would be able going have a Only “A. guns try sway them your stick piece day I in the trial. read a the other right? if felt were in fact over We guess everybody did. paper. most pretty “A. I’m stubborn. piece paper, but I did read a don’t take the ' paper. about “Q. looking we are for. That’s what pass Hoagland Mr. for cause. “Q. anything Did read they paper; what the case

facts of might have been done taken? said OF VOIR DIRE EXAMINATION Well, present any evi- “A. didn’t EUGENE WINTERS paper. dence BY MR. FOUSER: yesterday? “Q. Was that “Q. juror have a before? You Yes, Sunday. I it was “A. believe “A. Yes. rate, not “Q. you would But at “Q. many have times this term How giving Don fair and any problem a have juror? you sat as impartial trial? “A. Two times. No, why I would. I don’t know “A. cases? “Q. criminal Were these both prove him “Q. require to You would not “A. No. innocent, you? would is civil, civil? “Q. or both were One is Well, go I have would “A. all and the other “A. was DWI One evi- presented to me as the Court what fugitive. harboring a That;’s go on. all canwe dence. you “Q. experience suppose from I you getting at is under- “Q. I’m What attorney prosecuting that the understand duty prove have no that we stand be- guilty Don proving has the burden innocent; duty or whole Don yond a reasonable doubt? him prove prosecutor is on burden “A. Yes. guilty? certain “Q. there are You are aware Yes, that. I understand “A. crime, of which must each to each elements you. I would Thank “MR. FOUSER: Do beyond reasonable doubt. proven be for cause. Mr. Winters pass your trials? that from other you remember “A. Yes. murder, degree your create in mind an OF

VOIR DIRE EXAMINATION something must to it? there be JOHANSEN EVELYN inference Well, BY MR. FOUSER: I will have to listen “A. facts, guess. I “Q. knowing this You enter into case pretty only judge much has told what facts, “Q. You I would listen morning? you in court this from your assume answer to Mr. Harris’s questions, anything let and not heard

“A. Yes. you? outside of the courtroom influence know, “Q. As there are certain ele- crime, must to each all of which ments I right, “A. wouldn’t. That’s beyond proven a reasonable doubt? “Q. opinion, not I You have formed Yes. “A. it, anything you might have take heard or that, read? “Q. problem You no proven? making sure that each.element “A. No. right. “A. That’s you. pass “MR. I Mrs. FOUSER: Thank case, “Q. Would the nature this Hennis for cause. case, it hard for murder make impartial juror?

you to sit a fair and No, I don’t think so. “A. OF VOIR DIRE EXAMINATION “Q. require You or Don to would us CLYDE FILLMORE prove to that he is innocent BY MR. FOUSER: charges, you? would Fillmore, you’re a farm- “Q. Mr. know No. “A. everything taken care gotten er. have you very much. “MR. FOUSER: Thank year? pass Mrs. for cause. Johansen Well, work do much

"A. farmers don’t year in the fields. this time of the DIRE EXAMINATION OF VOIR “Q. no chores around There are MARY HENNIS you be home? place require that to MR. BY FOUSER: farmer, Well, and I crop a “A. I’m row of, livestock, yes. “Q. Hello, Mary. many times care How no so it’s taken have juror? you been a have charge, anything about the “Q. Is there many? murder, How “A. first-degree that being this a as you to sit a would make it difficult “Q. Yes. impartial juror? fair and Twice. “A. the death regard to The nature “A. expe- “Q. anything from those Is there penalty? you to it hard for that would make riences first-degree No, case? is a impartial juror “Q. just in this that be a fair and charge? murder No. “A. so. I don’t think “A. feelings strong

“Q. you Do have murder, crime; is, first-degree this that would you “Q. you have stated I know you be a fair it hard for that would make Lodge Judge the instructions follow impartial juror? think you. You don’t give them would that, problem do you have would No. “A. you? has been that Don Would “Q. fact prob- have I don’t think I would “A. charged brought arrested and before Court, lem with that. they’ve charged him with first- der, murder; “Q. very Judge Lodge burglary; At the first read charges against grand youDo off three the defendant. theft. understand that each charges has you understand that each one of one of those to be considered Do those separately you go beyond when to the room charges proven must be tried and saying I’m and deliberate? reasonable doubt? What is it’s nothing, charge all or but each must be “A. Yes. proven beyond a reasonable doubt. “Q. possible maybe you It is would that, yes, I “A. was not aware of but guilty find him of one of the offenses but understand it. yet him of not find two other combi- nation? “Q. any problem with you Do have

that? “A. Yes. already" “A. than what I’ve None other “Q. you require prove Would Don to

stated. charges? you that he is innocent these “Q. point you understand it So at this No, you “A. think evidence all-or-nothing proposition? not an He could go by. guilty be exonerated on some found on “Q. You understand that it is the bur- others? prosecuting attorney prove all den of the “A. Yes. beyond he has made of the accusations doubt? reasonable

“Q. you you Do think if would reach an different, say, than the Yes, I understand that. “A. you jurors, eleven be able to other “Q. juror You have been a before? opinion you abiding if felt an stand Yes, “A. two times. conviction, your if reached decision you had “Q. experience, I’m sure decision? From and felt it a correct defendant has no burden of realize that a “A. Yes. if putting any evidence he so chooses? “Q. You would be able to listen and Yes, was that “A. I was on one that freely jurors the other their discuss with way. case, I assume? feelings on the “Q. that make think that the Does “A. Yes. likely guilty than not defendant is.more pass ju- “MR. We would FOUSER: testify? he does not because ror for cause. “A. No. “Q. guess that the ultimate issue And I Judge Lodge’s instruc- if can follow DIRE EXAMINATION OF VOIR you promise us will carefully, do tions AGNES ENGUM do that? BY MR. FOUSER: “A. Yes. you anything know “Q. Engum, Mrs. do pass juror I this for will “MR. FOUSER: you what have case other than about this (emphasis pp. 37-78 add- Tr. Vol. cause. today? here in the courtroom heard ed). it. I anything know about “A. I don’t first round of was the end Such papers. don’t read Defense counsel jurors. examining the anything on TV “Q. you seen Have single challenge to mount was not able it? about cause, might just as well have the exercise. foregone No, paid much atten- I’ve not that “A.

tion. peremptory first Following the state’s ex- called and juror was challenge, another Lodge explained earlier

“Q. Judge amined, court: by the Don; but charges against mur- three there are first “Q. You understand that the defense VOIR DIRE EXAMINATION OF any- proving does not have the burden of ELVIS COMER thing. entirely The burden is on the State BY THE COURT: of Idaho. “Q. Comer, you prior Mr. have had “A. Yes. duty, you have not? “Q. opinion if we have an So or are “A. Yes. disprove waiting for the defendant to some- “Q. Was that both criminal and civil? affording thing, then we are not him the “A. Criminal. rightfully de- presumption of innocence he serves? “Q. position morning you Were in a this questions

to hear the that were asked right. “A. That’s the Court? “Q. Now, you you do think that could “A. Yes. might anything you have set aside prior coming today into court heard “Q. Is anything there about only your base decision evidence questions you any cause those would presented in this courtroom? you reason at all to feel could not be fair juror? impartial “A. Yes. “A. No. “Q. your you person want a Would judgment present frame mind sit “Q. you anyone Have talked to who you case if were the defendant or the anything this purported to know this state? case? one, Definitely. I I I believe would.

“A. have talked to no but have “A. papers seen on television and all “Q. you Did hear the statement read of that. concerning penalty? morning the death “Q. you or From what have read have “A. Yes. media, you in the news seen have formed “Q. finding If the evidence warranted a position opinion or taken a an murder, you could return pro- cause the to have defense verdict, or any religious or do feeling to overcome that duce evidence prevent scruples conscientious that would opinion? returning that from verdict? No, “A. I don’t believe I have formed “A. No. media an on this the news “Q. Do of the witnesses know television. testify might in this we mentioned that read or “Q. you might have Whatever case? heard, just news you understand that is Yeah, the two that discovered “A. media? body. Yes, just it’s the news. “A. “Q. What were their names? base something It can “Q. is not Kalousek brothers. “A. The opinions on? any factual one of “Q. you talked with either Have Yes,

“A. I understand. them? time, though we even "Q. the same At years, No, seen them for I’ve not “A. true, when we sometimes that to be know neighbors years close they to be but used something, us to it does cause or hear read ago. the other it hear evidence until we believe that a defendant do understand way. You you think testify, do they If were to “Q. presumed be inno- criminal case in a knowledge friendship or past your cent? give greater credence you to cause might wit- other testimony than some to their Right. “A. might Well, ness that testify concerning “Q. any does you of this stuff same facts? heard outside of the courtroom create in your mind that likely guilty Don is more “A. No. guilty? than not “Q. them, you just Did know or were “A. Outside of the courtroom I’ve never they personal acquaintance? been, discussed it I you where have know. ago “A. Years pretty lived close. We’ve never talked about it. I don’t know I knew them real well. But as time travels nobody if else knew I about it. never on— brought up. Nobody else ever did. “Q. Taking into only consideration not “Q. mind, your What about own trials, past what we have discussed in you you what have heard? Have I morning but what have talked about this any opinions? formed having your examined own conscience “A. really. Not concerning your responsibilities juror, as a you any do know you “Q. reason you could Do think that fact impartial juror sit as a fair and being charged this Don first-degree with matter? you murder makes maybe think there is something to it?

“A. No. Well, yes, “A. I do. On examination defense counsel: “Q. feeling, That is a natural of course. presumed You at understand this time he is VOIR DIRE EXAMINATION OF to be innocent? ELVIS COMER right. “A. That’s BY MR. FOUSER: “Q. you you give do that? Can Can “Q. you You said heard a bit little presumption him the of innocence? courtroom, about this case outside of the you anything you read about it. Can recall “A. I I believe can. read? “Q. anything Is there about the nature Well, mostly guys “A. on these two charge that is murder body. that found charge, that would make it difficult or hard you impartial? for “Q. you That all is about remember? “A. I don’t think so. remember, mostly

“A. That’s what I be- guys I know the two that found him. cause “Q. you you Do think are the kind of up your person that could stand own “Q. you purported recall Do feelings, say, jurors disagreed if the eleven you paper? facts in the Do remember you you right? you knew might place? of that about what have taken They I could. would have “A. believe much, Well, not but a little. “A. too tough time. want me to tell There was—do it? questions. “MR. No further FOUSER: pass Mr. for cause. Comer Sure, “Q. tell me what remember. pages a hundred Skipping more than Well, they pickup “A. found last three the same to two of the much of be a part supposed of it. There was jurors examined: guess pickup, and I television

about covers it. DIRE EXAMINATION OF VOIR “Q. about how the anything Was there WHELCHEL LOREN any statements paper might have described BY THE COURT: that? anything made or like Whelchel, ju- “Q. been a Mr. now is thing I remember only “A. The ror before? was found. area where it

7g5 knowledge, I have not. Yes, my Not to “A. “A. sir. don,t newspaper. read much “Q. criminal? In both civil and “A. Both. “Q. you pretty good idea of So have a EXAMINATION OF VOIR DIRE juror? responsibilities as a GLORIA GONZALES idea, pretty good yes. I have a

“A. BY THE COURT: “Q. Taking that into consideration Gonzales, “Q. you ju- have been a Mrs. questions I morn- along with the asked this before? ror ing, your would answers have “A. Yes. panel what the as a whole different than “Q. on both civil and Has that been responded morning? this cases? criminal No, I “A. it shouldn’t be different. No, just “A. criminal. impartial. fair and can be familiar, then, “Q. your re- You’re “Q. you any religious have or con- Do ju- obligations as a trial sponsibilities and prevent you scruples scientious that would ror in a criminal case. guilty returning from ever a verdict of Yes, “A. sir. murder, though even the evi- “Q. experience con- Taking that into dence warranted the same? sideration, question which along with the long concrete evi- “A. As as it was panel as a whole this morn- I asked dence. anything ques- about those ing, was there “Q. You would follow the instructions you to have tions that would have caused Court, given by you whether on that responded differently panel than the personally agreed with it or not? whole? that, “A. I would do sir. “A. No. “Q. you anyone Have talked to any religious or con- “Q. you have Do anything

purported to know about prevent you would scruples that scientious case? returning a verdict of first-de- from ever murder, warrant- even if the evidence gree yet. “A. Not ed the same? “Q. you Have read in the news media “A. No. something on television or read or heard read, heard, “Q. or you seen an Have you that would cause to have formed anything that has caused the news media opinion feeling or in this matter feeling you to an overcome? would take evidence to form take evidence to overcome? would No, “A. sir. “A. No. “Q. truly presump- believe in the You anything heard “Q. Have read or innocence and the fact tion of case? about this right to remain silent? defendant has the something. I read “A. I’m sure that, “A. I believe sir. something. hearing remember vaguely “Q. know that the state has to You else, doing something kitchen was in the guilty beyond a rea- prove the defendant something arraign- I remember but any problem sonable doubt. Do doing I was I’m not sure. But ment. concept? with that half-listening. I was things, so other problem, sir. “A. No through the “Q. proceeding If we something that there were “Q. evidence anything Have read or heard to some- to reflect back cause case? about this 786 heard, investigation do

thing you “Generally, ap- read or feel the entire revealed, point peared base to the of your could set that aside and decision be even (the crime) allegedly place.” on heard in court- how it took completely what room? Bishop said it would be difficult for a (em- 5, Tr., pp. jury Canyon County to

“A. Yes. Vol. 207-217 chosen from remain added). impartial face of of phasis the amount infor- mation that has been revealed the might A the criticism which be leveled at case. Brooks “assurance” statement as utilized by suspects’ Harris has majority press” is that the “free said the confession “absolutely by which merely reporting this case was been corroborated” a subse- being spoon-fed by quent investigation. “It nails them to the prosecu- tor, wall,” people Harris said. other law enforcement tempered who had could down Fetterly were and Windsor arrested prosecutor been of a mind to caution 10, Sept. day body after Grammer’s mind, stage them. With that in is set floating in was found the Snake River six a to examine the articles which made for Ferry. Walters miles downstream from people jurors” to sit “well-informed as —all Grammer had been stabbed five times and motion of which are attachments’ to the face, legs wrapped his arms and with duct seeking jurors a venire from some coun- of tape, deputies said. ty would Canyon and, other than also one — Fetterly originally were and Windsor think, Canyon other than which counties murder, charged first-degree robbery with to the intensi- subjected not been same deadly weapon. and use of a Harris said ty reporting: exposure of media for of robbery charge dropped lack slaying 2 murder ordered tried for evidence. of man Caldwell granted by change If a of venue By DOUG PEEPLES moved, but the court trial would not be jurors be called in from outside Can- would Statesman Idaho yon County, Bishop said. Sept. suspects in the CALDWELL—Two Bishop he will file motion soon to said a slaying Sterling 7 Grammer of Cald- of G. change right to ask for a reserve the well were bound for trial on Wednes- over not for a venue. He said ask day, attorney ask while their said he would hearing motion held until some on the to be change of for a venue. trial, get he can a when time close to hearing, District preliminary a 3rd In publicity impact better measure Don- Magistrate bound over Jack Swafford on case. Windsor, Fetterly, ald Karla Fetterly Windsor remained in custo- murder, first-de- charges of County jail without bail. dy Canyon gree burglary, grand theft and use of killing trial set in hear- Murder weapon. closed the deadly Swafford Caldwellite ing public request of defense to the at attorney Bishop. Van PEEPLES By DOUG hearing that he Bishop said after the Idaho Statesman from intends to ask that selected Sept. suspects pretrial Canyon County because of CALDWELL—Two outside Sterling G. Cald- reports quoting slaying Grammer publicity included —which on Wednes- say- over for trial well were bound County Richard Harris Prosecutor he would ask attorney said day, while their ing had been a confession obtained venue. change and Windsor. hearing, 3rd District preliminary ordinarily con- In Bishop said he was over Don added, bound Swafford Magistrate Jack pretrial publicity, but cerned about Windsor, 27, Saturday after murder afternoon Fetterly, ald Karla murder, driving they spotted first-de them Gram- charges first-degree police on of said gree burglary, grand use theft and of a pickup mer’s truck. weapon.

deadly Swafford closed hear charged robbery were with The two also at ing public request of defense com- deadly weapon a with use of and Bishop. attorney Van charge felony. mission of a The latter hearing Bishop said after the that he time to sentences could be used add their jury that a be selected from intends to ask if Windsor are convicted and Canyon pretrial County outside because charges. the other publicity reports quoting included —which Friday body of on found the Fishermen County say- Prosecutor Richard Harris Caldwell, Grammer, St., Elgin 1201 E. ing a confession had been obtained from River, floating miles down- in the Snake six Fetterly and Windsor. Ferry. stream from Walters Bishop ordinarily he con- said was not During hearing, was Fetterly also added, pretrial but publicity, cerned about Twin Falls served with a warrant from “Generally, investigation ap- the entire writing with County charging him a check revealed, peared point to be even to funds. was tak- with insufficient No action crime) (the place.” allegedly how it took charge. en on that Bishop said difficult for Magistrate Judge Marvin Third District Canyon County to remain im- chosen preliminary hearing on the Cherin set a partial face in the of the amount infor- charges robbery Sept. murder mation that has been revealed about the pair Canyon and ordered the returned to case. County Assistant Public Defender Jail. the suspects’ Harris said confession has request release Scott Fowzer did “absolutely by a corroborated” subse- suspects two on bond. quent investigation. “It nails them to the together suspects, Both who lived wall,” said. Harris Caldwell, recently bond released on were Fetterly and Windsor were arrested awaiting an 4 trial on a and were Oct. day body Sept. after Grammer’s charge of use of misdemeanor fraudulent floating in River six was found the Snake credit card. Ferry. miles downstream from Walters Fetterly and Police earlier said Grammer had been five times and stabbed two weeks be- Windsor had met Grammer face, with legs wrapped his arms and duct fore the murder. tape, said. deputies Appleton, operations Dick officer for originally Fetterly and Windsor were Canyon County Department, said Sheriff’s murder, robbery charged with Saturday pair that the were at Grammer’s deadly weapon. use of a Harris said Wednesday early home when he returned robbery charge dropped for lack of was said morning. Appleton Grammer evidence. struggle ensued while stabbed after arraigned charges of Two on tape. being up with duct tied murder, theft times, in- stabbed five The victim was By PEEPLES DOUG heart, according to cluding once in The Idaho Statesman Records, detec- Sgt. Allen Caldwell Police supervisor. tive division suspects arrested CALDWELL—Two 45-year-old Saturday slaying Ster- wife, Rosalie said Grammer’s Records arraigned Monday were ling G. Grammer her Grammer, missing report on filed first-degree murder. charges for a stop Friday after he failed to husband 4-year-old The his son. daily Karla Y. visit Fetterly, K. Donald for 18 separated have been Windsor, 27, charged Grammers arrested Grammer, months, belonging Canyon County strongly but Grammer at- Prescott said. Sheriff John young son and visited him tached to their according missing-person re- daily, Friday, two fishermen found Gram- On port. River, floating in six body mer’s the Snake Ferry. downstream from Walters miles report said Rosalie Grammer became body had been bound at the wrists and supervi- suspicious after Grammer’s more tape; tape ankles with duct also had been Manufacturing Friday Kit called her sor at head, mouth, nose and wrapped around since said he had not seen Grammer police said. Tuesday. previous morning autopsy Saturday An conducted husband’s Friday, she saw her Later Grammer, Kit employee an showed one man and two women pickup truck with Co., Manufacturing died as the result of Road, report in it on Kimball South body, upper heart and stab wounds to the said. and Harris said. Prescott suspects just got jail Murder out of belonging believe a buck knife Police By MICHAEL ZUZEL slaying, Harris was used in the Grammer recovered the knife from the The Idaho Statesman said. Police sedan, Impala he victim’s 1970 Chevrolet suspects arrested CALDWELL—Two said. Saturday in with the death of a connection suspects took statements from the 45-year-old man had been released Police Caldwell robbery County after their arrest and believe was Canyon from the Jail sev- on bond killing, motive in the Harris said. days slaying, before the officials said the eral Sunday. that, things “There are still some based Windsor, Windsor) (Fetterly and on what Fetterly,

Donald and Karla us, quite square physi- with the first-degree mur- told don’t who were arrested on evidence,” Sterling Harris said. “For the most charges in the death of Gram- cal der mer, St., physical jail part, story in on their corroborates Elgin 1201 E. had been card, charges use of a credit evidence.” of fraudulent Prosecuting Attorney Rich- Canyon County pair Police believe the had met Grammer ard Harris said. murder, before the about two weeks belongings, seen his arraigned on been to his home and suspects will be Apple- today Operations in Officer Richard charges p.m. at 2:30 Can- sheriff’s murder Court, County Magistrate Harris said. ton said. yon According Appleton, pair were at pair said the had been released on He early when he returned ago. Both were Grammer’s house than two weeks bond less resulted, morning. struggle A Wednesday 4 appeared in court on Oct. on the to have death, Apple- was stabbed to charge, and Grammer he said. credit-card ton said. exactly when Harris said he was not sure in body was left Police believe the had been arrested on Fetterly and Windsor night, when it was Wednesday until charge, long they how house credit-card nor ramp a boat wrapped up dropped off being custody before released. were River, Appleton said. into the Snake Windsor both Harris said stereo, set, clock-radio A television living together unemployed were and were from Gram- items were taken long, and other Fetterly has “a in Caldwell. He said house, said. Prescott (criminal) mostly mer’s record ... bur- extensive glary-type stuff.” Fetterly and captured, they were When 1970 driving were Grammer’s Windsor apprehended

Fetterly and Windsor were truck, Prescott said. pickup Saturday Nampa’s south- Chevrolet p.m. on the car in which camper shell and driving pickup truck’s truck west side while sions, were said. But Appleton the knife found had been left with while Grammer bound, suspects, being changed of the he said. apparently friends struggle, mind Appleton his and started contemplated No further arrests were said. slaying, connection Prescott said Sunday. point At that him assailants stabbed times, fatally several at least once in the

Suspects slaying arrested heart, Appleton said. By BÁRR MIRIAM told reporters Prescott and Harris at The Idaho Statesman briefing autopsy that an conducted Satur- CALDWELL—Two Caldwell residents day morning determined that Grammer Saturday slaying were arrested wounds in killed stab the heart 45-year-old Sterling of Caldwell. Grammer upper body. part robbery Authorities said was a motive in Harris there were several other lac- said crime. lung body erations on the and that one Windsor, 27, Fetterly, Karla and Donald perforated. He said there was a bruise driving pickup truck Grammer’s temple left and a bruise on the Grammer’s they p.m. when were arrested about Sat- right side of his face. urday at a roadblock at Midland Boulevard Appleton authorities the as- said believe Avenue, Lowell Nampa’s and Lake on body sailants in his house left Grammer’s side, Canyon County southwest Sheriff night. day Wednesday all and returned that Fetterly and John Prescott said. Windsor wrapped the they Authorities also believe charges were booked body ramp it to a on the took boat Grammer, murder in death of 1201 E. six Snake River about miles downstream St., Elgin Prescott said. Ferry, they put from where Walters body, Grammer’s bound at the wrists and river, body Appleton in the said. floating tape, ankles with duct was found ramp Two fishermen were near the boat Friday. in the Snake River on clothed, body, they fully when still saw Fetterly arraigned Windsor and will be drifting three feet from the riverbank p.m. Monday Canyon County at 2:30 Friday, Appleton about 9:30 a.m. said. Court, Magistrate Prosecuting Attorney Harris Richard said. Windsor and were Prescott said driving pickup, Grammer’s 1970 Chevrolet interviewing suspect, After each Richard shell, camper its minus when officer, operations Appleton, the sheriff’s stopped Saturday afternoon. by officers following authorities believe the took said camper He said truck’s shell and Gram- place: Impala sedan mer’s 1970 Chevrolet couple had met Grammer about two suspects. with friends left before, had been to his home weeks from said several articles possessions, Appleton his sheriff seen said. truck, were seen in the home Grammer’s broken into Tues- home was Grammer’s in- had not had time but that officers away, night Appleton while he was day stereo, set, clock it. television spect A Wednesday morn- When he returned said. items were taken radio and other him people and said ing two confronted house, Prescott said. Grammer’s property, Apple- they wanted some of his said. weap- ton knives guns, or other He said no pickup. ons were visible knife, with a armed The assailants were Appleton said. pickup was seen Prescott said while who contacted officers people several robbery, give appearance To County Canyon around being it was driven up agreed be tied while the Grammer Saturday. Wednesday and posses- between some of his assailants removed Robert, 17, Kevin, Lydick, Minnie and Sam Grammer’s land- twins Ronald lords, said Grammer had lived in one of 4V2,Appleton said. apartments years.

their for about two Lydick said Grammer was a hard-work- Lydick said lived Mrs. Grammer alone ing man. very few and had visitors. She described go him “I’ve seen to work when he was quiet person” “kept him a “nice who to,” sick she said. “He was a too man who himself.” help anyone thought they if he need- and his wife were She said Grammer help.” ed sons, separated. The Grammers had three Grammer, 45, Sterling Elgin 1201 E. slaying arraignment Gene held Grammer said died after he was St. Police Grammer By Kevin Hackett times in the chest with a stabbed several Idaho Press-Tribune knife at his residence at about short-bladed preliminary hearing date was Sept. A 21 9 a.m. couple accused Monday set for a Caldwell body, at the wrist and Grammer’s bound week and murdering a man last Caldwell wrapped with duct ankles and the head Riv- dumping body his into the Snake later Friday by two tape, was discovered last er. River, about six fishermen Snake 26, Fetterly, and Karla Donald Kenneth Ferry from the Walters miles downstream Windsor, 27, formally were Yvonne Bridge. rob- charged first-degree murder and with Fetterly and Windsor were arrested arraignment Magistrate before bery at an Nampa police Saturday in southwest after charges of Accompanying Marvin Cherin. driving pick- they spotted Grammer’s were of a dead- committing felony a with the use up. pair. against filed ly weapon were also Opera- Canyon County Office Sheriff’s county public de- appointed the Cherin Saturday Appleton said Dick tions Officer suspects. Public- represent fender to - they investigators entered Fouser, suspects told present at who was Defender Scott while he was wasn’t residence he arraignment, told Cherin Grammer’s away was slain the concerning for Tuesday night. bail Grammer ready to make a motion to he returned following morning after couple. residence. outstanding also served an Fetterly was A County. Twin Falls warrant out of formally also Windsor were Fetterly and writing a check with insufficient charge of rings, a taking two Monday with charged Fetterly there. against filed funds has been pis- television, stereo, .22 caliber radio the warrant. was taken on No action All of the residence. from Grammer’s tol the time by police at recovered items charged in con- are Fetterly and Windsor suspects’ arrest. Sept. stabbing 7 death nection with the

791 they disagree told are I do not suspects Both Cherin cur- While Justice wherein, rently unemployed. Fetterly said last relying Bakes on State v. Bain ago a in (1985), worked two months ranch 273, bridge, Idaho 698 P.2d 108 335 Nevada. will he declares that the Court consider giving opinion as to prejudice affidavits pleas slaying enter

Two refuse to in publicity, agree I do by pretrial created of Caldwell man mandated, in that affidavits are fact if such CALDWELL—The two defendants in the could, argument. be the tenor of his One a re- murder last month of Caldwell man supposed, require might also pleas at 3rd District fused enter their prejudice affidavits as to that would or arraignment Friday. Court might joint a when result to defendant in a Lodge Judge District Edward J. entered nontestifying his trial at which co-defend pleas Fetterly innocent K. Donald evidence, ant’s admitted confession Windsor, Karla Y. set tentative implicates much which defendant. 12. date Dec. consider, For who would so I invite those 26, Windsor, 27, Fetterly, are 616, Beam, v. 109 attention to State Idaho charged Sept. slaying Sterling 7 (1985). 710 P.2d 526 G. Grammer of Caldwell. A trial was ten- Supreme Just as the United States Court tatively scheduled for Dec. 12. States, 391 remarked in Bruton v. United that, just gonna “I’m take Fifth on 1620, 1622-23, 126, 20 U.S. 88 S.Ct. nothin,” sayin’ Fetterly I’m not said when (1968), 476 on the substantial risk L.Ed.2d Judge Lodge 3rd District Edward asked for jury, despite to the that the instructions murder, pleas charges his incriminating looked to the ex- contrary, first-degree burglary grand theft. tra-judicial determining peti- statements The Fifth Amendment to the Constitu- just guilt, as the same court tioner’s protects self-incrimi- tion a defendant from Denno, v. 378 U.S. 84 S.Ct. Jackson say Canyon County nation. authorities (1964), L.Ed.2d that a held Fetterly obtained confessions from judge defendant is entitled to have the trial shortly their and Windsor after arrest. first determine whether confession give plea refused also voluntarily handing made before it to separate charge related but of use of a credibility, proper assess its deadly weapon in the commission of rule those in trials here for interested fair crime. (Lutwak perfect but not trials v. United 45, Grammer, floating was found in the States, 344 U.S. 73 S.Ct. body Sept. on his Snake River bound (1953)) “the should that L.Ed.2d 593 Fetterly tape. with duct and Windsor were despite juror, risk that a assur- substantial following day. arrested the may already contrary, have ances to the guilt the from upon decided defendant’s Fetterly Windsor were returned to read, the the mouth of what has from he Canyon County arraign- the the Jail after law enforce- himself and other prosecutor ment. know, mili- position in a to ment officers foregoing, with the the ac- In connection by a resolving the issue of tates in favor magistrate who conducted the tions of the indeed, is, exactly change This of venue.” hearing are noted. He preliminary to be majority, the where differ hearing. When it was con- held a closed the differ from legal minds will where most proceedings the sealed. cluded ordered Bainbridge, unlike majority. Unlike to from his only surface The document Thomas, Needs, Brooks, un- unlike unlike was in district court office the order filed (cited the Bitz, unlike Powers like for trial binding and Windsor over (cited in unlike McLennan opinion), Meanwhile, Brooks prosecu- the in district court. cases opinion), unlike Idaho the Brooks obtaining move begun tor had his toward reviewed, is a case this not jurors.” which I have people “a to sit well-informed pervasive killed, where “the influence of the burglary by opera- free of the was press daily by lives” law, our was at work tion because crime the of of of having report- ferreted out that which was burglary society, is so that offensive seemingly the situation in Brooks. law that will ed— infer defendant press This is a case where the free was premeditation acted with delibera- prosecutor’s handed the statements which tion. reported. It is not a matter to be law infer The will also that the act of lightly glossed majority over—as the has attempt- the defendant was malicious in prosecutor’s charge against done. The ing to perpetrate burglary. He degree defendant was first murder. First crime, planned the and that malicious act degree punishable murder is by death. An perpetrating attempting perpe- necessary essential proof element this regarded trate that justly crime is as the charge degree case first murder causative antecedent of the homicide. prosecution prove premedita- Hence, guilty the person is first-de- tion, prove it and/or that that the murder law, gree by operation murder of the during perpetration was committed of a requisite because the intent is referred. felony, charged burglary. here the To imputed It That to him. is what that premeditation difficult, prove absent about, really having instruction is all some direct evidence thereof. To connect committing burglary do burglary the murder with the was also a perpetration burglary. context or of a proposition. somewhat difficult That the proven I submit has was, defendant had killed Mr. Grammer beyond the evidence a reasonable however, leadpipe prosecutor cinch. The Tr., 2, pp. (emphasis doubt. Vol. 331-32 did have confession which he had re- added). talking ported having in to the media. It Likewise, credibility prosecutor’s generally appears prosecutor that the jury have when he should convinced misrepresented anything not in his state- explained premeditation how had been ments to media. He the iron- did have proven: which he had. clad.murder case he said He instructions Under the did was a man to be believed. But he not received, simply means the act deliberate degree have a first murder necessarily at or was deter- formed or arrived Hence, case. because he had been found thought process. mined as a of a result credible, it is understandable that it, thought That he about then did it. argu- accept the truth in his final length thought time he charge them ment when he told as to All of really does matter much. felony murder: way thought us are familiar with the guilty that the defendant reason thought process process A can works. perpetrate attempting while murder snap through quick go your mind as as a burglary is that the statute that fingers. is that it be Caveat states that murder defines careful, thought. Premedita- deliberate person commits a crime this when a along That word that is tion. is another is, that burglary, that gravity, that deliberate; simply premeditation crime, burglary, is so offen- the crime of What is it beforehand. means occurred result to society that should death sive that been shown that has the evidence commission of that someone from the premeditation? and indicates deliberation law, operation that burglary, in all, planned crime was First of the premedi- the intent of will be deemed or ad- planned was in crime advance. inferred to tation deliberation will be physical- say could suppose I we vance. That’s of that crime. perpetrator the may have been not killing ly the de- here. We have what have we itself advance, but is some- there planned in burglary. We perpetrating a fendant atwas says that it thing my in mind victim arising where situation burglary thing they did was take the thought least about. But the third thought planned place in advance. It was tape duct and it around Grammer’s about. One comments way and attach it all the around face during made in his statement defendant straps going with the clear around. this, they thinking that time they him. Then stabbed him, “neither one of us wanted to hurt so Now, argu- let’s look at it from this going up.” we were to tie him What occurred, stabbing ment. When me, you? at does this tell What it tells incapacitated. He could Grammer was least, planning stage is that in this absolutely posed not defend himself. He it burglary, this had crossed the defend- being of safety no threat to the or well “Well, something may ant’s mind. come way in the defendants. There was no up might guy. and we hurt this We provoke incapacitated state he could might something do to him.” Their doing legal in the defendant sense thought prevent in order to something Fetterly was than what other happening, up. we’ll tie him But inclined to do of his own will. He they crossed their minds before ever guy provoked. Fetterly stabbed the might something went in the house that that was what he was inclined to because happen guy. to hurt the do, it. and he did they got they When there and did ac- strug- began He stated that Grammer Grammer, they him. You cost did hurt gling; unglued, that he or some- became Donndelinger will remember when Dr. thing Why you sup- to that effect. do testified, injuries and he testified to the pose unglued. became And Grammer I that Grammer had received. am not through going sequence back this time, eye which it was at this but sure wrists, events, wrapping of the eye, appar- there was a cut under the and feet, wrapping wrapping of the died, ently that cut came after he had face, you testimony will recall the pressure or because there was no blood Donndelinger. tape that was Dr. That diffused out into the tissue. blood wrapped put the face was on around face, The other side of the at about air, the way such a that it sealed off the location, recall, photo- I it is guy and mouth. The couldn’t nose graph photo- can at the look If not died of stab breathe. he had it, graph and see but somewhere aorta, wounds, or the stab wound location there was a rather severe bruise. asphyxiation. died of he would have prior death. And more That occurred If Donndelinger said. is what Dr. That significantly, he testified that he had re- tape duct somebody taped your face with head. ceived a blow to back of his in which this defendant in the manner head was of That blow to the back of his Grammer, Sterling face of taped the enough was severe as to such nature or At some unglued. come think we would likely cause unconsciousness. begin to thrash point in time him, Now, irregardless of they hurt struggle begin to You would around. they Then what did the stab wounds. getting any air. you were not because They they bound his hands do? said point in breathing at this were not You tape and his hands are bound with duct him trying to hold They were time. together. with his wrists back keep him down down on the bed him down on they they said laid Then knocked up head came bed. His bed, together bound his feet head, they tried to Fetterly’s Mr. the third tape. Then believe with duct the bed. hold him on the tes- thing sequence in will recall said, “I reached Mr. Then Appleton, wherein timony of Officer bed, grabbed the headboard of across the Sunday house on back over to the went they had knife,” already opened, the them defendants walk and had the tape, he the duct knife to cut opened the through happened. what knife, grabbed person officer, the he peace and started stab- murdered is execu- a officer, fireman, bing court, him chest. tive officer the officer, Now, judicial prosecuting attorney, or let’s talk about this deliberation 18-4003(b),or a where a convict murders a premeditation for moment. The § inmate, guy prison jail employee, struggling. is on the bed. He or another or is visitor, that The defendant can remember he or in an attempting committed for the He escape. premeditated reached knife. didn’t reach The conviction of hand, for the knife with his left but he degree highly first murder suspect. is right reached for it with his hand. He trial on felony court’s instructions murder already realized that knife the correct, jury undoubtedly and the fol- opened. began Then he came back and But premedi- lowed them. the verdict on words, the- “I guy, stab in his stuck clearly by tated became murder clouded When knife him.” don’t have the in prosecutor’s the incorrect statements. your hand and the knife is located else- considered, All I that a trial think new where, fact that reach across had, predicated should be which would be knife, hand, get put your it in prosecutor’s trying primarily on the it, that involves the and stab with If case to the media in advance of trial. thought process. That involves delibera- prevent fu- way there is a better such premeditation. tion. That involves To occurrences, I know ture do not of it. See weapon get the that don’t Chapman California, 386 v. U.S. hand, your weapon, then obtain (1967). S.Ct. 17 L.Ed.2d 705 Such with. weapon guy use to stab the from, best, a decision should emanate at doing submit that the act of that involved Court, vote from this and at unanimous premeditation. It involved deliberation. least, hap- majority, which will not It aforethought. It in- involved malice pen. disregard the life of volved a wanton judg- in the Court’s Accordingly, concur Tr., person. pp. Vol. another 334-38 not affirming jury verdicts. I do ment added). (emphasis judgment impos- concur in the court’s prosecutor was able to convince That it is not ing penalty, not because death guilt premedi- jury as to defendant’s merited, my here- views but on basis surprising. degree murder is not tated first the unconstitutional- expressed tofore ground in But was not on sound advis- jury ity failing to involve ing premedita- the law infers sentencing process, which remain capital tion, it Felo- infers deliberation. unchanged, fortified. only not but is defined I.C. ny degree murder first 18-4003(d), regard that with which states § of, attempt perpe- perpetration

to the

trate, felonies, burglary enu- certain

merated, is murder any murder committed degree. Premeditation

of the first felony Sim-

required murder. element

ilarly, is not an element where

Case Details

Case Name: State v. Fetterly

Court Name: Idaho Supreme Court

Date Published: Oct 28, 1985

Citation: 710 P.2d 1202

Docket Number: 15419

Court Abbreviation: Idaho