State v. Fetterly

which codefendant to the life sentence Scroggins received. facts from the record and the It is clear Lodge, the Hon. Edward judge, The trial mitigating circum- the of this case Bench, pub- has made the the outweigh gravity the of now retired from stances do not circumstances so as to make the less aggravating that Beam was lic his assessment penalty. of the death unjust the of- enforcement culpable of the two. Law fact, gravity of the of- because After a assessment. ficials shared that weighing strong factors fense and the record in both thorough perusal of the rehabilitation, against any possibility of cases, my assessment. that also became any circumstances one of legally opinion that it is I remain of the outweighs the by found this Court to exist to not reconsider for the Court unsound defendant, mitigating circumstances. The least, of, sentence Beam’s actions, by his has forfeited his own judge and the officers of the trial views to live. culpable Scrog- than less that Beam was contrary has been legal No cause gins. shown, of this Court and it is penalty should be that the death offense of

on the defendant for

which he was convicted. IS, THEREFORE,

IT ADJUDGED guilty of the crime of First

the defendant is malice,

Degree Murder with deliberation premeditation, and that he should be by to death the Idaho State Idaho, Plaintiff-Respondent, STATE pre- in a manner Board Corrections April 1984. scribed law FETTERLY, Kenneth Donald IT and DE- IS FURTHER ADJUDGED Defendant-Appellant. guilty the defendant CREED Rape by jury verdict of and should be FETTERLY, Donald Kenneth sentenced to the Idaho Board of Cor- Petitioner-Appellant, period thirty rections for fixed of time of (30) years. March, day

Dated this 19th 1984. Idaho, Respondent. STATE Lodge (s) Edward J. 16540, 16541. Nos. Judge District of Idaho. Supreme Court DISSENT ON DENIAL Sept. FOR REHEARING Rehearing on Denial of Dissent BISTLINE, Justice, dissenting on Dec. rehearing. denial of opinion the direct

On Court’s specific holding:

made a im- of death

We hold that the sentence

posed in the instant case is not excessive disproportionate cases.

posed similar sound, when made was

That assessment say No can other

and it is still sound. one But, agreed that I have with it.

than peti- supporting in the brief

pointed out rehearing, proportionality has

tion for respect be considered the Court with

232 Nampa, plaintiff-re- Bishop,

Van G. spondent. Gen., Jones, E. Atty. Lynn

Jim Thomas, Gen., (argued), for de- Sol. Boise fendant-respondent.

BISTLINE, Justice. Kenneth was convicted

Donald murder, degree burglary, and first him grand theft. The sentenced were His and sentence to death. conviction Fetter on direct affirmed 766, 710 P.2d 1202 ly, the district Fetterly now contends (a) denying erred court relief, (b) denying his Rule for a reduced 35 motion to disqualify motion denying his Rule 25 pro post conviction judge from Idaho ceedings. 115 appellant P.2d 678 arguments very where advanced similar On the basis rejected by this Court. were authority affirm. of that PROCEDURAL AND I. FACTUAL

BACKGROUND degree of first Fetterly was convicted His murder, grand burglary, and theft. Windsor, co-defendant, was convict- Karla Lodge Judge ed of the same. both to death. Windsor’s held that the death but affirmed this Court disproportion- sentence was excessive ate, sen- and therefore vacated resentencing. tenced remanded P.2d Thereafter, Judge dis- Lodge proceedings further qualified himself from Lodge that: Judge reasoned in Windsor. this conclusion of was and still is the [I]t mitigating facts do not court these facts- outweigh the court of this Therefore is the decision myself respectfully disqualify State, 100 Idaho any further involvement in these mat- Kraft (1979) (former adjudication con- ters. parties privies every as “to mat- cludes R., at 127®. received.”). ter offered and disqualify Judge Fetterly then moved to Lodge considering B. NEW AUTHORITY FROM ground petition and Rule 35 motion on the SUPREME COURT apply to the mandate of unable UNITED STATES Windsor, Judge Lodge this in could Court regard In to the Miranda issue fairly dispose of the contention that appeal, Fetterly direct contends raised on proportionality required the reduction of Supreme Court cases that two new U.S. Fetterly’s The de- sentence. motion was mandate a reversal of his conviction. On nied. appeal, this Court held direct primary Rule 35 The thrust questioning that unwarned but uncoercive motion was that the death sentence presence made outside the of Windsor Judge Lodge posed by proportional was not Fetterly, time con after which Windsor in v. and State Fetterly, resulting in an incul ferred with 380, Scroggins, 110 Idaho 716 P.2d 1152 statement, patory joint did not disable Fet (1986). regard In post conviction terly waiving rights and confess 42-day petition, Fetterly argued that the given his Miranda ing after he had been proceed post limit with a convic- warnings. Fetterly, supra, v. State cases, proceeding opposed tion 770, at P.2d at 1206. year non-capital felony to the five limit in murder, Fetterly Prior to his for arrest cases, equal protection. violates The Rule charged had been with fraud Windsor petition post 35 motion and the for convic- public A ulent use of a credit card. defend tion relief denied. were them, appointed represent er was both posted bail and were released.

II. THE FOR POST now contends that he could not waive his CONVICTION RELIEF charge rights as to the murder Miranda right coun because his sixth amendment A. THE RES JUDICATA RULING charge. on the fraud In sel had attached Fetterly urged grounds numerous for re- Supreme support he relies on two new U.S. petition post versal in his Moulton, cases, Maine v. U.S. Court relief.1 The district held that (1985), 159, 106 88 L.Ed.2d 481 S.Ct. petition issues raised were barred Jackson, 625, 106 Michigan 475 U.S. judicata because of the res effect of Fet- These S.Ct. terly’s direct Fetterly, Moulton, clearly inapposite. cases are supra. the defendant retained counsel after application An post charges. Subse state initiated special proceeding, relief is a civil in na incriminating quently, police elicited ture, proceeding distinct from the criminal through the defendant statements from which led to the conviction. informant, undercover which were admit Beam, supra, 115 Idaho at Supreme ted in at trial. The evidence State, citing Paradis v. conviction, holding reversed the Court Because the “Sixth Amendment is violated when the issues raised in the convic incriminating statements state obtains adjudicated ap relief circumventing tion were knowingly the accused’s peal, Fetterly, present in a confron right to have counsel no the accused and a state P.2d 1202 we find error tation between ruling. agent.” at 487. district court’s res See Miranda, arguments raised include sev sues. amendment, felony-murder, and venue is enth pro- however, presiding over the point misses the Fetterly, apply if the ceeding Moulton would 35 motion for reduc- the decision. resulting from incriminating statements Beam based his tion sentence. Whereas arrest were questions after his murder judge’s trial refusal to claim of bias on the charge. fraud against used him on the Scroggins co-defendant sentence Beam’s right true: to counsel converse is not Scrog- found after this Court remand charge. on the murder had not attached dispro- gins’ death sentence excessive noted, “Incriminating As Justice Brennan bn the Fetterly bases his claim portionate,3 pertaining other crimes statements co-de- to sentence his judge’s refusal [here, murder], the sixth as to which on remand after this fendant Windsor attached, are, amendment has ex- death sentence found Windsor’s course, of- admissible at a trial of those disproportionate.4 cessive and 490, n. fenses.” 106 S.Ct. at In stated: Beam it was police held that if In the Court Jackson upon a Every judge trial who rules interrogation initiate after the defendant’s proceeding or conviction review counsel, any right of his to subse- assertion will to reduce sentence I.C.R. 35 motion right quent waiver of the is invalid. matter, the previously pre-judged have However, Fetterly did not S.Ct. at 1411. extremely strong opinions often formed right counsel on the murder assert his Thus, his charge. just because he asserted which should be as to the sentence days to counsel three earlier on a no doubt be convinced posed, and will bootstrap charge, fraud he cannot that as- and the sen- procedure the followed Consequent- charge. to the murder sertion correct, particularly imposed was tence contentions, ly, contrary the have proceedings the trial court where new sixth amendment cases from the Su- appeal by this Court. affirmed on been preme do not Court United States case in which a be an unusual It would mandate reversal.2 to rule on upon called judge, trial when reduce 35 motion to an I.C.R. DISQUALIFY III. THE MOTION TO on the basis the case approach not would correct, imposed was that the sentence Fetterly, argues like that the to shoulder defendant require the judge disqualified should have himself the warnings not overcome Recently Supreme would Miranda the United States Court de — —, is created Roberson, presumption coercion that U.S. cided Arizona custody. police prolonged (1988), S.Ct. 100 L.Ed.2d 704 which does — at —, —, at 2100. S.Ct. U.S. Roberson, analysis. alter our the defend contrast, subjected to such Fetterly, by was just-completed arrested at the scene of a ant was environment. a coercive burglary. subsequently He was advised of his Roberson, Second, ap- trial court the unlike rights and stated he wanted a Miranda Fetterly his initial on pointed counsel later, attorney lawyer. days Three without an custody remaining with- charge. Instead yet appointed, a in different officer obtained advice, Fetterly had counsel’s the benefit of out criminating from Roberson about statements bail; released and was the benefit of counsel burglary. The Court held another unrelated was court-appointed counsel request for his timely granted. Arizona, 451 U.S. that Edwards v. Thus, Fetterly subse- was when police-initi bars murder, familiar he was quently arrested for following suspect’s interrogation request a ated system rights his afforded with separate in the context of a investi for counsel appointed for could be aware that counsel gation. way no disabled was in him. distinguishable clearly for two Roberson confessing rights waiving into coerced First, Roberson, Fetterly was unlike reasons. given Miranda warn- after he to murder charged after he was with on bail released ings. card. In Roberson the use of a credit fraudulent 380, 716 P.2d Scroggins, 110 Idaho where: stated that 3. State v. elapsed days period between of three request the inter- for counsel and unsatisfied offense, is a rogation second there 4. State about a repetition of the mere risk that the serious “the showing original burden of sen- properly perform legal analysis unusually tence was severe.” requires him, State v. recogniz- which the law Martinez, ing already pre-judged that he has (1987). Coming to the case with case, strong lasting opinions formed that frame of mind does not constitute of the worth of the defendant and the prejudice meaning bias or within the ought sentence that to be 25(b)(4) require I.C.R. and does not dis- punish protect society. the defendant and qualification judge. of the trial In this conclude We that the trial court did not question case the presided had refusing disqualify err in himself from Scroggins. at the trial of both Beam and participating conviction and He had heard all of the evidence of this proceedings 35 sentence reduction raping brutal murder and of an innocent merely this case because he had dis- year girl. presided thirteen old He had qualified himself from partic- further sentencing at the proceedings in which ipation in resentencing appellant mitigation aggravation extensive evi- Beam’s co-defendant Scroggins, and in presented dence was to the court. Based process expressed strong had dis- evidence, all of that the trial court agreement with this Court’s action in had arrived at the Scroggins, supra, which vacated outweighed circumstances Scroggin’s sentence. mitigating circumstances and served Beam, 215, v. 115 Idaho at 766 State only degree for the most heinous of first P.2d at 685. case is not distin- very murders. The nature of the sen- Beam, guishable majority and a of the tencing process in capital requires cases applica- Court have concluded that Beam is judge a trial to form strong opinions and controlling. ble convictions that the defendant merits the penalty. most severe It would ex- be IV. CONSTITUTIONALITY tremely unlikely improper and no doubt OF I.C. 19-2719 § for a impose trial court to penal- a death Fetterly argues that I.C. 19-2719 § ty strong opin- unless had formed the unconstitutionally deprives equal him of ion and belief that the defendant had no protection of the laws requires because it features, redeeming and that the circum- post petitions conviction penalty in death particular stances of the justified case days cases to be filed 42 within of the of penal- this most serious death, imposing whereas non- ty Accordingly, known to the law. when post petitions may cases judge upon a trial is called to rule a years be filed within five expiration petition relief, or a appeal. for the See I.C. 19-4902. This § motion for reduction of sentence under argument rejected by majority was also a 35, particularly in a case where the of the Court in controlling and is death imposed, has been he majority disposition here. The in that case comes to the case having already after was that: strong opinions formed and beliefs re- garding the test, atrocious nature of the Under the rational basis which is crime, here, appropriate unredeemable character of the legisla- test defendant, and society the need of only ture’s action need a have rational impose pen- this most serious of criminal basis. Minnesota v. Clover Leaf alties. A trial required Co., 456, court is not Creamery 449 U.S. 101 S.Ct. gone 715, (1981); erase from his mind all that has v. McGinnis before, indeed, any it is doubtful that Royster, 410 U.S. 35 Rather, (1973); Johnson, human could. when faced L.Ed.2d 282 v. Leliefeld 25(b)(4) disquali- with an I.C.R. motion to 104 Idaho 659 P.2d 128 fy (1983) (“Under prejudice for bias and in a convic- the ‘rational test basis’ proceeding, tion or I.C.R. generally appropriate which is to use only need reviewing impact conclude that he can when statutes which areas, the question social economic V. CONCLUSION becomes whether the classification ‘ad court are judgments district goals legitimate legislative in a vances affirmed. ”). validity rational fashion.’ of I.C. on 19-2719 must be tested that stan § C.J., BAKES, SHEPARD, In applying dard. the rational basis JOHNSON, JJ., HUNTLEY and concur. standard, begin with the under standing (1) legislature may rea DENIAL DISSENT ON sonably power exercise its define FOR REHEARING punishment by and fix classifying crime BISTLINE, Justice, dissenting on to the criminals with reference heinous petition rehearing. denial of gravity they nature or the crime com mitted, State, Malloroy see appeal statutorily On man the direct (2) P.2d dated review of his public legislative purpose declarations Fetterly, 109 Idaho 710 P.2d great I), are afforded deference determin (Fetterly majority of this Court ing validity legislation rejected argument his sen under the tence equal protection disproportionate in the of death was clause United penalty imposed in As will similar cases. States and Idaho Constitutions. See noticed, opinion Fetterly’s the Court’s on be Kramer, Resources Board Water post- petition from denial of his relief, ap to which this will be legislature clearly In this case the pended, grounds held that numerous printed out a rational basis I.C. argued were res purpose 19-2719 in the statement § were, been, they or should have because accompanied which the enactment of the adjudicated v. Fet underlying legislative pur- The statute. P.2d 701 terly, 115 Idaho pose behind the statute stated the need II). (Fetterly expeditiously pro- conclude criminal rehearing, ceedings recognized and the use of dila- concedes the existence that res tory tactics death those holding, urges that but nevertheless to ‘thwart their sentences.’ The stat- light disproportionate in the sentence is purpose is such ute’s to ‘avoid abuses of Windsor, 110 Idaho legal process requiring that all collat- opinion in case eral claims for relief ... be consolidated opin- decided issuance the Court’s after proceeding....’ in one We hold ion on direct and statuto- legislature’s determination it was Although rily automatic mandated review. necessary to reduce the de- interminable readily seen that on in rational lay cases is a basis appeal, in could proportionality his case 42-day limit of the time compared to the then undecided be legisla- for then The set I.C. 19-2719. § case, nevertheless when Windsor Windsor problem ture has identified the and at- proportionali- appeal, on direct was decided tempted statutory remedy it with ty as those two who between co-defendants rationally that is related to the scheme only inferen- Sterling killed Grammer was purpose expediting legislative consti- tially passed upon. opinion for the tutionally imposed sentences. Accord- that, although noted Windsor ingly, I.C. 19-2719 does violate § killing participation in the Windsor’s equal defendant’s constitutional with Sterling Grammer co-extensive correctly and court protection, in- background and Fetterly’s, “Windsor’s petition. denied Beam’s to make the dividual characteristics serve (her) 766 P.2d at case.” excessive in this cooperation error. Accordingly, majority opinion find no noted her authorities, with lack of a formal

record, conducting as an ideal in- herself

mate, compassion for inmates.1 fellow the Court

Accordingly, my vote is that the one grant rehearing

should confined to issue, i.e., proportionality of

narrow

Fetterly’s death sentence issue

sentencing decision

which has not heretofore been addressed Otherwise, Fetterly’s

by this Court. back-

ground post-conviction conduct equally considered

character traits are not co-defendant’s.

with his Stamper, and Donna

Earl STAMPER wife, parents guardi-

husband and minor, Stamper, Darla Plain-

ans of

tiffs-Appellants, Plaintiff, Stamper,

Deanna COMPANY, a

ALLSTATE INSURANCE

foreign corporation,

Defendant-Respondent, Darrington, April Melanie DeBord and Aherin, Brown, Lewiston, Rice & Doe, John Defendants. Aherin, plaintiffs-appellants. Darrell W. No. 16990. argued. Supreme Court of Idaho. Clements, McNiehols, & Lewi- Brown ston, defendant-respondent. P. Robert Aug. 1988. Brown, argued. Rehearing Dissent on Denial of Dec. SHEPARD, Chief Justice. summary judg-

This is an from a ment issued in favor of defendant-insurer seeking under the in an action to recover provisions of the uninsured motorist sec- policy. insurance tion of an automobile Having rather than resentence Karla dissented in I continue to recused himself view, my Windsor, subsequent adhere to a different contrary and note that as has been covered in views were shared the district penalty cases. defendants, and thereafter who sentenced both

Case Details

Case Name: State v. Fetterly

Court Name: Idaho Supreme Court

Date Published: Dec 13, 1988

Citation: 766 P.2d 701

Docket Number: 16540, 16541

Court Abbreviation: Idaho