State v. Gibson

set aside. practitioners Older will remem-

ber that where the district courts did find neglect,

excusable entry of an order

setting aside the default was conditional on

payment Here, expenses. costs and un-

noticed majority, counsel for the

claimant, who conscionably could not

ethically agree vacating of his (judgment),

client’s award requested of the

Commission if it did set aside the re-open case,

award and costs should be Court,

awarded. majority of

moving into the territory, Commission’s do

nothing regard in that in my judg- —which heaps ment travesty upon usurpation. closing,

In according my recollection,

just in thirty so, the last months or

Court, thereof, or at least some members holding come down with a that even

on a written record this may Court

properly findings substitute its for those of Today Commission. the Court does

just thereby completely breaking that — precedent. all

675 P.2d 33 Idaho, Plaintiff-Respondent,

STATE GIBSON, Henry

Thomas

Defendant-Appellant.

No. 14425.

Supreme Court of Idaho.

Dec. 1983.

Rehearing Denied Feb. 1984. it,

did going that he was to retrieve them. early

Gibson testified that in the morning 21, he, Paradis, hours of June Larry Evans, others, among were at the Paradis residence when Currier and Palmer ar- fight erupted rived. A and Gibson testified that he watched Paradis beat Currier to death with a baseball bat. Gibson testified time, that he left for upon a short returning lying found Currier on the floor dying. dead or Gibson testified that he Kimberly running saw Palmer out of the grabbed “as I house and she ran me her, pulled her down to the floor and hit her and knocked her out” because he was calling help. afraid she would be for Gib- son testified that he then moved Palmer Vrable, d’Alene, Michael J. Coeur for de- kitchen, put floor, her on the took her fendant-appellant. alive, pulse, determined that she was still Larry and related Jones, Gen., that to Evans and that Atty. Thomas, Jim Lynn E. Gen., Evans then choked Palmer to death. Sol. Gib- Larry K. Harvey, Dep- Chief choking son testified that he uty Gen., Boise, watched the Atty. plaintiff-respon- and thereafter determined that Palmer was dent.

dead. SHEPARD, Justice. Gibson testified that he and another then This appeal is an from placed a conviction of body sleeping Currier’s in a blue degree first murder and from the bag placed sentence while Paradis and Evans of death imposed upon conviction, that body sleeping bag. to- Palmer in a red gether with our review of placed the death sen- bodies were then in the blue and § pursuant van, tence to I.C. 19-2827. We af- white which was driven to a remote firm. just Falls, area outside of Post Idaho. Oth- testimony er approximate- indicated that at surrounding The circumstances the crime ly Saturday morning, 6:30 a.m. thht largely challenge except are without as to blue and white driving van was observed the location of and who did the actual kill- up steep a mountain road in sparsely ing. damaging Some of the most testimo- populated Falls, area south of Post Idaho. ny came from the defendant Gibson him- van, Two or three men were one of self who testified at trial. Gibson was wearing cap. whom was a distinctive Gib- charged degree with the first murder of son testified blue and white van Kimberly Ann Palmer. Palmer and a hill, going up stalled rolled backwards friend, Currier, Scott Spokane, were in and overturned. Gibson stated that he Washington, where Currier had met mem- stayed in the van while Paradis moved the motorcycle group. bers of a On June body Kimberly Palmer and Evans moved 1980, Palmer camp- and Currier left for a body of Scott Currier. The van was ing trip in a blue and van. white On Fri- pushed over, abandoned, Gibson, then day, June and Palmer Currier checked Paradis and Evans walked back to Post Spokane into a motel which was located a carrying Falls. Gibson stated that he was short distance from the residence of Don- up a rifle rolled in a blue blanket. Paradis; they immediately ald checked out motel, stating with Currier that his testimony placed Other three men stolen, guns general Gibson, had been that he description knew who Paradis and actually killed in the streambed had walking toward Post Evans down that road course, evidence, Falls, contra- morning. The men That Idaho that same Idaho. testimony of Gibson strange and one was were all to the area dicted carrying up Three resi- a rolled blue blanket. killed in the Paradis’ Palmer had been description observed Washington. men of the same were dence in the State morning, they entering Falls that Post preliminary that at the Gibson asserts police in Post Falls. questioned were hearing stage information should have identified as those men was One of cause, probable for lack of been dismissed carrying up a rolled blue blan- and he was 5.1(c): citing I.C.R. three was identified as ket. Another of the magistrate “If from the evidence the Paradis. public offense does not determine that day, the blue and white van Later that there is not has been committed with debris seen turned on side cause to believe probable or sufficient just about off that mountain scattered committed such of- that the defendant Upon investigation, body of Kim- road. fense, magistrate shall dismiss the in a berly Palmer was found face down discharge defendant.” complaint and nearby body and the of Scott stream small probable The standard of review sleeping bag. found inside a Currier was hearing findings preliminary cause at the body pieces with was bound Currier’s Owens, 101 stage was stated State v. bleeding. A had been dis- terrycloth and 636, 787, 632, P.2d at 791 at 619 Idaho by worn Currier had belt buckle tinctive (1979): Palmer was found to have cut off. been hearing preliminary the state is “At the strangled death. prove guilt accused’s required to morning Sunday, early hours of In the doubt; it need beyond a reasonable Spokane 22, residence the Paradis June prove that a crime was committed by severely damaged by a fire caused was probable cause to believe that there In the of that house was arson. basement it. the accused committed [Citations]. up rug, in which were found found a rolled magistrate there The decision of a buckle, missing a lawn dart belt Currier’s probable exists cause to bind a punc- of blood which matched with traces court for trial on the over to district back, piece and a ture in Currier’s wounds only on a charges should be overturned terry- terrycloth which matched blue committing magistrate showing that the body of cloth found with the Currier. abused his discretion.” 23, and a friend Monday, June Gibson On ex- probable cause It is also stated that area; they apprehended left the were it “such court has before ists when the 25. Gibson northern California on June person a reasonable as would lead evidence gave author- a false statement California probably party has accused to believe the being returned to the State of ities before charged.” the offense likely committed or Washington charged where he was 709, 706, State, 429 at Carey v. Following the murder of Scott Currier. State, 836, (1967); v. Martinez P.2d at 839 trial, acquitted charge he of that 426, 232, 229, P.2d at at of Kim- extradited to Idaho for the murder berly Palmer. testimony, it is reciting the Without trial, was raised con- major At issue produc the evidence sufficient state cerning jurisdiction over Gibson Idaho’s hearing preliminary by ed at therefore, State and, case much of the State’s commit that a crime had been established autopsy consisted of evidence which person would believe ted and a reasonable varying body de- that the state of showed likely partici probably had that Gibson compositionindicated that Currier had been Palmer, the offense pated in the commission of and water killed some hours before charged. no of the discre- lungs that Palmer We find abuse in Palmer’s indicated magistrate tion of the finding ly in his in obtaining suspects by evidence from probable cause. removing the incentive to do otherwise. Michigan v. DeFillippo, 443 U.S. 31, point time, At one Gibson was 2627, (1979); S.Ct. 61 L.Ed.2d 343 United represented by public the office of defend Peltier, States v. 531, 422 U.S. 95 S.Ct. period for a approximately days, er ten (1975); 45 L.Ed.2d 374 United States during but time no member of that Calandra, U.S. office so much as contacted A Gibson. Ohio, (1974); Mapp L.Ed.2d 561 367 U.S. public member of that defender’s office (1961); 6 L.Ed.2d 1081 joined County the Kootenai Prosecutor’s CLEARY, E. McCORMICK ON EVI- during Office the time prosecut that it was § (2d 1972). DENCE 166 ed. ing attorney Gibson. That was ordered prosecutor’s office and the trial purpose “The deterrent of the exclusion- speak court to to no one in prosecutor’s ary necessarily rule assumes that regarding office the Gibson case and that police engaged willful, or at the attorney faithfully maintained the silence. very negligent, least conduct which has Nevertheless, Gibson asserts that the mere deprived the defendant of right. some appearance impropriety is sufficient to By refusing gained to admit evidence require disagree. reversal. We conduct, hope result of such the courts allege, show, has failed to even much less particular to instill in investigating those Schutte, Annau v. prejudice. actual officers, or in their future counterparts, (1975); see 535 P.2d 1095 greater degree of care toward the Hobbs, 611 P.2d rights of an accused. Where the official Wolfe, v. (1980); 382, State 1047 99 Idaho pursued complete good action was in State, (1978); Mahaffey v. 728 582 P.2d 87 faith, however, the deterrence rationale 233, (1964). See also 392 P.2d 423 Peltier, supra, loses much of its force.” State, Young v. 286, 297 Md. 465 A.2d 1149 539, 2318; 422 U.S. at Michi- 95 S.Ct. at (1983). Tucker, 433, 447, gan v. 417 U.S. 94 S.Ct. Gibson asserts that the trial should court 2357, 2365, (1974). 41 L.Ed.2d 182 by excluded a statement him made It has also stated that the Court been attorney California district since there “simply would decline to extend the court- § compliance was no with I.C. 19-853 in exclusionary made rule to cases in which obtaining of statement. I.C. purpose its deterrent would not be served.” § 19-853, essence, requires that Miran- in States, 244, Desist v. United 394 U.S. 254 da warnings under certain circumstances 24, 1030, 24, n. 89 S.Ct. 1036 n. 22 L.Ed.2d given writing be or recorded otherwise (1969); see also United States v. Ca- 248 person questioned and that acknowl- landra, supra; DeFillippo, Michigan v. edge writing that he has received the Peltier, supra. supra; United States v. Miranda warnings. There is no contention that Gibson did not receive the Miranda case, In the instant the California warnings or that the actions of the Califor- validly authorities acted within the con comport nia authorities did not with consti- straints of the United States Constitution tutional standards set forth the United and, informed, insofar as we are followed Supreme States Court. jurisdiction. find no the laws of their We Hence, we restate issue: should an excluding probative basis to assume Idaho court exclude from evidence a state- validly by evidence obtained California jurisdiction ment taken another admit- jurisdiction in their deter authorities would tedly compliance with the United States their their future conduct or the conduct of constitutional standards but not obtained counterparts jurisdictions. Put other compliance with an Idaho statute? simply, type, in a case of this there is no of major purpose application the exclusion- rationale whatever for the behind police proper- deal ary exclusionary rule is to assure that act rule and since we

59 denied, cert. Cir.1965) 856, 385 U.S. 87 here with the asserted violation of a state 104, (1966); rather than a violation of a consti- Ladd v. statute 17 L.Ed.2d 83 right, we refuse to invoke the ex- State, (Alaska tutional 1977) cert. P.2d 960 568 clusionary sanction to the statements made denied, 928, 1498, 435 U.S. 55 to the California authorities. (1978); People Vaughn, 71 v. L.Ed.2d 524 406, 186, Cal.Rptr. 78 455 P.2d 122 Cal.2d next asserts that the trial Douglas, (1969); People v. Cal.App.2d 246 admitting erred in evidence connect court v. (1966); Davis 594, Cal.Rptr. 54 777 ing Gibson with Scott Currier State, (Fla.Ct.App.1973); 277 311 So.2d since it constituted evidence of another State, 21, v. Ga.App. Jenkins appellant crime for which was not on trial. Darling, (1978); State v. S.E.2d 33 Generally, evidence other crimes of a (1966); People v. 471, Kan. 419 P.2d defendant is not admissible at trial to show Bolden, Mich.App. 296 N.W.2d 613 propensity the criminal of the defendant. Schlue, Needs, (1980); N.J.Super. State v. 591 P.2d 130 Wrenn, Yormark, v. (1979); State v. (1974); State 323 A.2d 549 (1978). (1971); P.2d 1231 Evidence other crimes N.J.Super. 284 A.2d 549 introduced, however, may if that evi Smith, be v. State 271 Or. 532 P.2d 9 generally within one of the rec dence falls Tarman, (1975); Wash.App. State ognized exceptions general rule. also, See Annot., 621 P.2d 737

“However, jurisdiction will admit ev- Admissibility of evidence as to other of past idence of defendant’s criminal activi- acquittal fense as affected defendant’s (1) motive, (2) intent, (3) the ty prove: offense, 86 A.L.R.2d 1132 accident, (4) of mistake or a com- absence case, In instant Gibson has not embracing plan mon the com- scheme charged murder of with the Scott Currier. mission of two or more crimes so related Hence, required are not we to decide proof one tends to to each other that charged by could be a dif- whether Gibson other, (5) identity establish the Idaho, sovereign, for crime com- ferent person charged with the commission of jurisdiction he had mitted which trial, (6) the crime on other similar acquitted Washington. previously been Needs, supra State issues.” 99 Idaho Rather, charged the stands with Gibson 892-3, at 591 P.2d at 139-40. Kimberly Palmer Idaho. murder of case, In the instant the evidence of Hence, jeopardy clause of the the double presented the Currier death was not for the States Con- Fifth Amendment to the United purpose showing pro of Gibson’s criminal applicable to the specifically stitution is not pensity, purpose but rather for the of Nevertheless, argued it is that case at bar. showing scheme, motive and common and rule under estoppel attendant collateral the present, to judge, stated the trial a 436, Swenson, 90 S.Ct. v. 397 U.S. Ashe which, scenario,” “rational and cohesive (1970), 1189, precludes the 25 L.Ed.2d 469 Izatt, v. permissible. are State uses 96 issue has since the ultimate trial of Gibson 667, (1975); 534 P.2d 1107 necessarily been determined at a already 527, (1975); Dayley, 531 P.2d 1172 disagree. previous trial. We Dillon, v. 471 P.2d State 553 (1970), cert. denied 401 U.S. Ashe, charged In the defendant had been 223 28 L.Ed.2d robbing people one six who of were engaged poker game. acquit- in a He was nevertheless, argues, Gibson robbing participant that one ted of case since crime” rule differs “other Thereafter, charged acquitted. he was being related to a introduced the evidence robbing participant. convicted of a second acquitted. had been crime for which Gibson acquittal robbing of See, e.g., It was held that v. Hernandez disagree. We Cir.1966); necessarily States, (9th participant the first established 370 F.2d United States, (9th gunman holdup 350 F.2d 389 that he was not the at Buatte v. United Colis, hence could be therefore, convicted for tended immunity rob- to Colis bing participant. the second allowed invoke Fifth Amendment. then Colis was dismissed and Ashe rationale is clearly distinguish- jury recalled instructed they able from the bar. acquit- case at Gibson’s any were not to draw or make inference or tal of murdering Scott Currier the State any concerning draw appear- conclusion Washington of necessarily does not estab- ance of Colis. participate lish that he did not in the mur- der of Kimberly Palmer Idaho. The It is asserted that those facts merit Washington jury in the Currier trial could reversal of the conviction of Gibson under acquitted any have on Gibson a number Namet v. United a standard set forth defenses, including jurisdiction. lack of States, 373 U.S. 83 S.Ct. hand, On the jury other in the disagree. L.Ed.2d 278 We In Kimberly Palmer could trial well have be- Namet prose was stated that when the that, lieved on the evidence submitted while knowing cution calls a witness Currier, someone pre- else killed witness would Fifth invoke the Amendment Kimberly escape vented from Palmer’s testify, and refuse to no constitutional murder, scene of the Currier beat her un- question involved, merely but a claim of conscious, her transported into Idaho and error, evidentiary trial and that such claim participated there in her murder. See of error would to be based either Brewer, King (8th F.2d Cir. upon flagrant attempt” “conscious and 1978). prosecutor upon to build his case infer arising ences testify from that refusal to Regardless guilt of Gibson’s or in showing that “inferences from a witness’ murder, nocence of Currier’s the evidence weight refusal critical answer added highly of that death is relevant as a motive prosecutor’s subject case in form not participation Gibson’s in the murder of unfairly prej to cross examination thus Hence, Palmer. the doctrine of collateral 185-187, pp. udiced At the defendant.” estoppel preclude did not introduction of Here, S.Ct. at 1154-1155. neither of the during the evidence of Currier’s applicable. Namet prongs two are trial of Gibson for the murder of Palmer. prosecutor Gibson admits the made no prosecutorial Gibson next asserts miscon- attempt” flagrant “conscious and to build calling duct of one Colis to the stand upon impermissible his case inferences and during disagree. We Gibson’s trial. appearance the record is clear witness, State called Colis aas who stated weight” pros Colis added no “critical his name and He then address. was asked Douglas ecution’s case. See v. State of if he owned of a kind vehicle. Before Alabama, 415, 420, U.S. answer, attorney represent- Colis could an (1965); Ey Cota L.Ed.2d 934 Colis, ing introduced himself and stated man, (9th Cir.1971), cert. de 453 F.2d 691 that he had the matter discussed with Col- nied, 949, 2054, 406 U.S. 92 S.Ct. 32 upon point, request is. At the that of Here, (1972). jury L.Ed.2d 338 the saw attorney, jury was Gibson’s the excused. only identify hardly Colis himself. It can jury left It was after the the court- testimony presence be said that or added attorney room that Colis’ informed the weight” any weight “critical or to the case instructing in- court that he was Colis to prosecution. of the and refuse voke the Fifth Amendment to indicated, jury the any questions. Colis affirmed As above was not answer that present invoking priv- he Fifth Amendment when Colis invoked the Fifth was the See United States ilege. point, privilege. the State offered Amendment At that to Edwards, (2d Cir.1966), immunity extend Colis and offered to 366 F.2d 853 denied, 908, 852, cert. immunity 87 grant obtain a of from the State 386 U.S. S.Ct. 17 (1967). Washington. of The court held that the L.Ed.2d 782 further note that We courtroom, Washington jury had ex- when the the State could not show reentered

61 instructed, they were Hodges, State v. “You are not to draw such is in remarks stated any 588, make inference or (1983): draw conclu- 105 Idaho 671 1051 P.2d concerning sion appearance the of Mr. John clearly “It prosecu- is erroneous for a Hence, in V. Colis this courtroom.” even tor to introduce of the defend- evidence assuming that preju- Gibson was somehow postarrest purpose ant’s silence for the by appearance diced the mere of Colis raising guilt____ of an of inference It is courtroom, the dissipated by it was prosecutor likewise erroneous for a court’s instruction. See Namet v. United to the on jury comment the defendant’s States, supra; Edwards, United States v. testify failure to at trial.” supra. Nevertheless, general rule is other- Gibson also asserts trial wise when the defendant himself takes the court give erred its failure to the circum stand. by As stated United States stantial approved Supreme Court, evidence instruction oth- interests of the “[t]he Holder, 129, 594 er party regard P.2d for the function (1979). 639 Here the record indicates that justice courts of to ascertain the truth be- adequately relevant, the court jury instructed the come prevail in the balance pursuant Holder requirement, determining albeit scope considerations beginning at the trial. find no against We limits privilege self-incrimi- the Holder error. We further note that Anderson, Jenkins v. nation.” 447 U.S. ruling required is “the link 231, 238, 2124, when evidence 2129, 100 S.Ct. 65 L.Ed.2d ing the defendant with the States, (1980); Brown v. United [crime] entirely 133, Holder circumstantial.” at 148, 156, 622, 627, U.S. L.Ed.2d at P.2d 643. Here the evidence was far “entirely from circumstantial.” find no We States, v. United In 271 U.S. Raffel error. (1926), 70 L.Ed. 1054 which Jenkins, argues during upon clos was relied reaffirmed ing argument supra, prosecutor im made two it was held that once a defendant proper require remarks trial, which the reversal takes the stand a second after First, of the conviction. prosecutor trial, remaining may silent his first he be utilized “link argument in a chain” stat why cross examined as to he remained si- ing that all of per the other links had trial, prior lent his waiver his formed their duties and was now time for Fifth right Amendment to remain silent is jury perform duty. findWe no total, permissible scope and the of cross Larsen, error. See State v. applica- only by examination bounded State, (1959); Horn v. 337 P.2d Jenkins, supra, ble re- rules of evidence. (1978); Fulg- Ind.App. 376 N.E.2d 512 that, having Fifth affirmed waived his State, ham v. (Miss.1980); 386 So.2d 1099 right silent tak- Amendment to remain State, Sparks see also 161 Tex.Cr.R. stand, ing the a defendant in a state trial S.W.2d 494 may impeached by his silence in accord- be applicable ance with that state’s rules Error is also asserted in prosecutor set evidence. Under standards making reference to Gibson’s silence dur- Raf- Jenkins, permissible to im- it is ing his murder in fel trial Scott Currier’s peach regarding his earlier defendant i.e., very Washington, strange “It’s that we silence if takes the stand. year gone by, has have waited until a However, need not base our decision we already the defendant has once in Jenkins upon and here not Gibson Washington jeopardy the of and State Raffel stand, upon took the but commented acquitted, and then now he wants tell rule these his earlier silence. The under story, says the of he whole that course has been stated: circumstances happened there over [both murders] [in say Washington], Why didn’t he this “The would to be settled rule seem well year ago?” general governing rule that in a criminal trial where defendant

62 in his Each

voluntarily takes the witness stand of those factors set forth by the court subject he defendant were examined trial own is to the same behalf each, turn, why and the court discussed and applicable rules to other witnesses mitigat- should not or should be considered regard may to all be cross-examined ing. trial also considered court then his to which he has testified on matters which factors not listed the defendant direct or connected there- examination mitigating. possibly could be considered as Larsen, 90, 99, v. with.” State 81 Idaho considering possible After each of those 5, (1959); v. Har- 1, State 337 P.2d 6 circumstances, mitigating the trial court 19, 854, 8, graves, 62 Idaho 107 P.2d determined, findings in its (1940). considering “in under Gibson himself commented Once 19-2515, Code, section the court silence, subject to upon his earlier he was circumstance, mitigating has found one com prosecutorial cross-examination and that to-wit: the fact has v. See Lockett upon testimony. ment that prior no criminal record. substantial Ohio, 2954, 438 U.S. However, not find that court does Fenton, v. (1978); Bontempo L.Ed.2d 973 outweighs mitigating such factor denied, (3d Cir.1982), 692 F.2d 954 cert. aggravating circumstance gravity of the U.S. 75 L.Ed.2d 935 found.” properly enumerat The trial court mitigating circumstances ed and considered impo that next asserts Gibson § 19-2515, v. State required by as I.C. sition of the sentence of death unconsti Osborn, 631 P.2d 187 by a imposed it was tutional since here late judge jury. rather than a cases Our that the trial next asserts Gibson Sivak, 674 P.2d 396 State § 19-2515, I.C. erroneously, court under Creech, (1983), and State against him in improperly held his silence (1983), dispositive P.2d 463 are cooperation considering whether Gibson’s question. mitigat police as should be considered with ing. Again, assertion misstates the that that next asserts the trial court Gibson merely The court of the trial court. actions comply sentencing procedure failed nothing mitigating in there was found that § 19-2515, and those failures with I.C. police since way dealt with the Gibson resentencing. the trial court mandate no Gibson he there was evidence that found disagree. Gibson asserts that the trial We There was cooperated police. had with weighed mitigating improperly court showing silence no that Gibson’s aggravating circumstances against held him murder trial was Currier mitigating circumstances grouped court sentencing process. in the ie., previous felony categories, “lack of into record,” etc., convictions,” “age,” “military trial next asserts Gibson category within each and determined “aided erroneously found that Gibson court were sufficient circumstanc- there Kimberly whether Ann killing in the and abetted That of Gibson. mitigate actions very es manner.” Al in a direct Palmer filed the facts. Gibson misstates though argues assertion the evidence sentencing “pre disagree. state- support finding, the court a we does eight which ment” which he testimony clearly listed items established Gibson’s own miti- as very directly contended should be considered aided abetted he that he l)a) previous felony previous con- noted “Lack of of Palmer. As gating: the murder Record; b) c) Military accept any part of victions; Age-30; free to ly, jury 2) any part d) testimony Defendant’s as true Family background. Gibson’s State, Examination; Lono v. 3) 63 Hawaii testimony; Polygraph false. trial State, (1981); Hopkinson v. M.D., Edgren, P.2d 630 4) Testimony of C. Gordon denied, cert. FAPA; (Wyo.1981), P.2d 79 5) Testimony of Henderson.” Cal aggravation/mitigation the U.S. 71 L.Ed.2d 463 trial court. An jury could, did, held, taken, apparently hearing and was evidence was and arguments believe that Gibson beat Palmer uncon- thereon. court heard The trial participated transporta- scious and in her findings setting issued written forth the tion to the scene of the in Idaho mitigating murder he and factors considered prevent strangled where she was her to aggravating beyond he found a rea- factors telling from of the murder of Scott Currier. mitigating sonable One circum- doubt. jury Whichever version of the found, i.e., evidence signifi- stance was the lack of believe, clearly chose to established previous convictions, cant criminal and that Kimberly therein Gibson that that intended weighed ag- against circumstance was Palmer die. gravating and insuffi- circumstance found stay penalty. cient death find no to We persons next that Gibson asserts error. who are mere aiders abettors in and killing not may penalty. suffer the death § requires to con 19-2827 us I.C. Florida, Enmund v. U.S. imposed duct a in review of sentence (1982), clearly 73 L.Ed.2d 1140 comparison this case in with the sentences penalty indicates that the death is not an imposed in cases to that the similar ensure unduly punishment an severe aider and sentence in the instant case not exces was person abettor murder to a when that in disproportionate. recently sive or We killing place. tends that a take As above Creech, supra, an ex conducted noted, can there be no doubt from the tensive review of murder cases. We evidence Gibson that intended Kimber imposed find in that the sentence in the ly Palmer killed in be order conceal the disproportionate stant case is not to the of the circumstances death of Scott Curri imposed sentence those cases reviewed er. in Creech the death sentence was where § requires I.C. 19-2827 punishment. that we now con- available as form of We independent duct an of this compared review cause also have the instant case with proceedings examine the total penalty our recent death cases in State v. trial ensure Creech, Sivak, court to that the sentence of supra, supra, and State v. imposed death pas- was resort without imposed and find sentence in the that the prejudice sion or or arbitrary other present disproportionate not case is factor, supports that the evidence the trial imposed sentences those We note cases. findings aggravating court’s circum- that the committed in instant murder stances, the sentence of death is case is similar to committed State v. disproportionate. excessive Sivak, supra, trial Sivak court one of found that the reasons the procedures find that We all of the victim was to was killed ensure the silence potential penalty mandated in death cases prevent identify victim and her from were Gibson attendance followed. ing perpetrator the defendant pronouncement at the of sentence and writ case, robbery. In instant the trial findings judge aggravat ten the trial on killing court Kim identified the motive for ing mitigating circumstances were berly insuring Palmer as her silence about given made. Gibson was notice that the surrounding the circumstances the murder State intended to ask for penal of Scott Currier. We find the death given and was notice the State’s intent ty imposed in the instant case to be both rely aggravating circumstances on the just. proportionate and § 19-2515(f)(6)-(8), set forth in I.C. was allowed to a docu submit judgment the sen- conviction and setting ment to court what Gib forth tence of death are affirmed. mitigating son circumstances felt were BAKES, C.J., J., considered, DONALDSON, con-

that should be and that docu ment and contents considered cur. were

64

HUNTLEY, Justice, concurring specially. deference, to in par- considerable but abundantly ticular area it seems clear that majority opinion I in concur the the the Justice simply has declined to have a I caveat and reservation that remain of history. head-on confrontation with At opinion capital sentencing that the Idaho point some in it time behooves State to process in respects: is unconstitutional two present address the issue. At the time it is (1) provide It does not utilization apparently to ride on the content coattails jury, which violates the Ida- both opinion. of the As I Court’s Sivak constitutions; ho and United States before, High said Court’s intervention and law, area of state penalty in the death (2) sentencing proceeding, The con- in may it needed some of while have been ducted the trial courts with the states, just as mentioned the southern court, approval deprives of this recently argument of the oral Attor- right accused of the to cross-examine case, ney Aragon3 was not General in the and confront witnesses at the sen- being Idaho, net result needed tencing hearing permits and the ad- statutory legislature’s a scheme passage of presentence investiga- of the mission that did the Constitution. not conform to report hearsay tion and other evi- course, legislature, The can correct the dence. inaction. situation cure this Court’s My reasoning regard in this is set forth in I Huntley and remain Meanwhile Justice dissenting my opinions detail in in State of join any opinion unable to of the Court's Creech, Idaho v. 105 Idaho 670 P.2d the sentencer. jury where has not been (1983), Sivak, Idaho State v. Idaho (1983). P.2d 396 II. BISTLINE, Justice, dissenting. Proportionality High Recent Court make cases from the I. has de- abundantly it that the Court clear Sentencing Constitutionality of the field, just has cided to abandon Under the Idaho Constitution completed about its evacuation. State play Creech,1 Sivak,2 again is about to not Not Louisiana v. Williams of out its extending Gibson, presented any last in a drama ten has the State act — Williams, argument authority years. Maggio, to con- v. refute the Warden -, 78 L.Ed.2d of Justice U.S. 104 S.Ct. sidered and substantiated views High (1983). opinion the Court myself that a con- Huntley and With pro- of statewide degree requirement is erased of first murder victed proportionality issue of possessed right guaranteed by portionality, which of a High remains of jury to have deter- is about all that Idaho Constitution prestigious opinions seven- he shall live or While it Court’s mine whether die. Proportionality ties cases. attempted is Bakes a refu- true that Justice altogether Pulley may well be discarded opinion, did not meet tation in his Sivak Harris, in 460 U.S. history granted v. which establishes the documented review (1983), 75 L.Ed.2d adoption of our that at the time of challenge that “the California Constitution, examine the and thereafter until the wholly Supreme Pulley had failed Furman, jury Court in of a defendant’s advent other compare applicant’s case with peers the awesome decision. made his death sen- whether always entitled cases determiné Bakes are views of Justice Creech, Aragon, 3.State No. 14771. Court 670 P.2d State 1. Supreme Sivak, P.2d 396 2. disproportionate

tence punish- accept murder. It difficult to Maggio imposed ment v. Wil- on others.” the Creech justices comprised three who — liams, at-, U.S. majority thorough S.Ct. at 314. made “extensive and But, High opinion the in however Court’s review of Idaho murder cases” which it may go,4 that case it should 2, P.2d, little affect the proclaimed p. in footnote 476 of 670 conducting of the of this business Court impor More p. and at 375 of 105 Idaho.7 proportionality. leg- the area of The Idaho question tant is the as to whether directing islature in our automatic review following Court is the mandate of I.C. § penalty sentences, 19-2827, § of death I.C. 19-2827(c)(3) requires propor —which amongst provisions, requires other tionality penalties review to be of the im (3) this “court shall determine whether ... in similar cases. To posed date, other the sentence of death is excessive or dis- footnote, than the the Creech declaration proportionate penalty imposed to the I do not see the demonstrating Court as cases, considering similar both the crime it has considered at all those cases and the defendant.” penalty where the imprisonment life was Creech, II, imposed. In Osborn Sivak In appropriate was for Sivak, dissenting opinions sug compare Court to his sentence with that of gested a considerable number of current Bainbridge, his by co-defendant who was first-degree murder cases unexplained some where the death mishap sepa accorded a (The penalty imposed. was not As rate trial. has been sentences were death to out, pointed Sivak, judges district required for are to Bainbridge life convicted —both to degree attorney transmit this Court and first murder killing for the same § general woman.) copies of their findings The 19-2515 so, Court did not do how all degree first Creech it was in order for the sentencings ever. In murder penalty whenever the death compare Court has been im his sentence with the posed. An shortcoming obvious recent similar cases of Osborn II5 § statute, 19-2827(a) LePage.6 I.C. the omission to Court did not do so. In § stead, require the transmission of Creech Court 19- string footnoted a 2515(d) citations, findings where the death some of which were first de has imposed. gree convictions, Any respectable been murder good many proportionality of which review has to include instance, were not. find For in State Otto, ings v. all cases where the sentenc made in 250, (1981), Idaho 629 P.2d 646 ing court conviction decides between life and attempted was of death. first de gree Although previously brought I have charged murder. Otto atten with con tracting murder, but, tion shortcoming, for a to this and believe that mistakenly deal ing police officer, with part disagrees, the most no one no murder took Lopez, place. In State v. 99, Court nothing. has done Other than for (1979), P.2d my attempt collecting the crime of own at which de all of such cases, fendant was convicted was assault and other than with where there have murder, intent to commit appeals degree the sentence from first murder con years. was five State v. imposed sentences, defendant in victions life Garcia, 378, (1981), operate P.2d 665 Court does not with a full deck. was convicted of conspiracy legislature clearly commit The contemplated that Supreme 4. The opinion 7.Basing California holding Court’s is re- language, on this Creech ported Cal.Rptr. majority at 28 Cal.3d proportionality: Sivak said as to (1981). P.2d 240 It contains no discussion of involving "Our review of similar cases proportionality examining penalty phase. penalty, necessarily while limited cases, Creech, lack of such as noted in State v. Osborn, 5. State v. 102 Idaho 631 P.2d 187 supra, presence any does not reveal the particular disproportionality excessiveness or particular in this case.” LePage, Sivak, 6. State v. 102 Idaho 630 P.2d 674 State (1983). 674 P.2d 396 that, though responsibility, tially argument the Court would an even rise to its by language noted princi- to that effect contained defendant has been convicted as § 19-2827(a). Two recent where murder, cases pal in the order to sentence the sentence was not death have been forci crime, him death for such there must bly brought to the attention of the Court actually that he was the one be evidence petition the State’s for our review from directly the manual who committed appeals. decisions of the Court of State Kimberly Ann Palmer.” strangulation of Wilson, (1983); 672 P.2d 247 R., p. 696. Wilson, 105Idaho 672 P.2d 237 unnecessary. Elaboration is Under (1983). Continuing my own effort at proportionality review of similar reasonable providing the trial bench and district cases, one, the death Bainbridge is knowledge courts with at least as much as extremely penalty imposed on Gibson is regard proportionality, have I in to I have flagrant More murderers questionable. § appended judge’s findings the trial 19-2515 LePage, II were those Osborn in both in those two cases. unquestionably actual were of whom This case is much like that of Bain- hand, Gibson, on the other murderers. bridge,8 which was discussed in Sivak. court, may may or according to the trial The sentencing judge in here observed his person out of three not have been § findings jury I.C. 19-2515 that “the could strangling of possibles who attended to the have, did, likely find that the defendant victim, aider and abettor. or was but an and, aided and abetted in Palmer’s death Thus, enough re the case is seen to bear consequently guilty principal pur- was as a Florida, 458 U.S. to Enmund v. semblance § provisions suant to the of I.C. 18-402.” 73 L.Ed.2d 1140 R., p. judge 689. The Enmund (1982), comment. require to some

“found, doubt, beyond getaway a vehicle a reasonable that: of the was the driver princi robbery during which two

planned was no victims. There pals killed the “(n) defendant, That either the Donald killings, Enmund intended the showing that Paradise, Larry actually Evans killed was, here, participant only that he Kimberly Ann Palmer. vic leading death of the the affair “(o) That the defendant directly either question in The court resolved tim. constituting pre- committed the act Enmund’s favor. Kimberly meditated murder Ann Palmer or aided and abetted its com- ultimately judge wheth- to is for us “[I]t mission.” imposi- permits Eight Amendment er the R., pp. penalty one such as 695-96. the death on tion of felony who aids and abets Enmund sentencing upon the judge The reflected commit- which a murder is the course of argument: contrary defendant’s does not others but who ted himself by the arguments raised primary “The kill, kill, or intend that a attempt to finding any opposition to lethal killing place or that take force accomplished in a killing was concluded, employed. We have will be disregard for exhibiting utter an manner legislatures juries, along most with first, are, the defendant human life not. that it does i.e., not kill that he did guilty, is not and, second, Palmer, Kimberly Ann question before us is not the the defendant “... evidence that

there is no of death as a disproportionality actually Miss Palmer. killed validity rather murder, but for these first of problem with the “The own punishment Enmund’s capital jury found to arguments is that the must be on his cul- conduct-. The focus is argument essen- contrary. The second January argument 1984. for oral Bainbridge, Supreme No. scheduled Court 8. State killing that a take intended pability, not on that of those who com- that Gibson Enmunds, victims, place, supra, robbery mitted the and shot the where the sen- tencing finding? for we insist on ‘individualized considera- court made no such It is requirement tion as a readily apparent Findings constitutional from that the ” imposing the death sentence.’ believed there no distinc- district court was 797-98, finding 458 U.S. at at 3376-77 tion a defendant whatever between added). (emphasis against guilty as an aider and abettor as crimi- Enmund’s executing held that since an aider and abettor: court provided no “The court has been the rob- to culpability extended nal authority general penalty for which holds that bery, imposition applicable persons convicted as a excessive law culpability was own Enmund’s (Idaho principal for a criminal offense a violation and thus disproportionate 18-204) is altered in Whether Code Section eighth amendment. also an potential penalty in- aider or abettor manner because fact an was in Thus, below requires the court it no issue, upon which volved death. and one re- give instructions necessary authority citation of to state that the law found prosecutor: long person who by the Idaho has been that quested aids and to aid abets the commission of a ARE INSTRUCTED “YOU assist, equally guilty fa- crime is as one who direct- knowingly means and abet counsel, act; and, ly course, so- commits the of is cilitate, encourage, promote, subject receiving crime. pun- of a the maximum commission invite the licit or ishment allowed law. The crime of that all INSTRUCTED ARE “YOU Degree pun- Murder In The First can be of a commission in the persons concerned ished death. Idaho Code Section 18- felony misde- crime, or it be whether 4004. Neither that section of the code directly com- meanor, they whether and sentencing provisions nor the of I.C. 19- or constituting the offense act mit the provides any penalty for commission, different princi- are abet in its aid and committed, upon in the event the conviction was had and as so pals in crime the basis that the defendant aided any crime so com- guilty of principals are and abetted the commission of the mitted.” forth accurately sets opinion crime. majority must, therefore, “It be concluded that himself testimony which Gibson damaging legislature person intended that a added omitting only that Gibson gave, who aided and abetted in the commission ascertaining room after left he crime of Murder In The First alive, to find returned and was Palmer Degree pro- could be sentenced to death her chok- over was straddled “Larry Evans viding her____ that the circumstances were such Kimberly Palmer I saw ing imposition of the death admitted choked, blue.” —and she turned pursuant provi- was warranted he stop him because attempt to making no sions of Idaho Code Section 19-2515.” testimony to his to. Gibson’s was afraid R., p. damaging, 699. extremely complicity Enmunds contrary. seems to be to abettor, and an clearly was an aider he the detention responsible APPENDIX solely perhaps pled consideration. Does the penalty. But I do Court to dered. I do not the victim remarks, with the allowed her automatically say that Enmunds sentencing judge’s findings do which say require but set escape record sustain for such aside Edmunds, discussion and requires being mur- might cou- this DAVID STATE OF IDAHO IN The above-named THE DISTRICT COURT OF THE THIRD JUDICIAL ZYNN TRICT OF THE STATE OF Defendant. Plaintiff, WILSON, THE COUNTY OF CANYON ) IDAHO CODE CONSIDERING DEATH Criminal # UNDER SECTION 19-515 FINDINGS defendant IDAHO, OF THE IN AND FOR having COURT PENALTY, DIS- IN Court, court, First appellate concluding an the criminal offense convicted of

7) discharge Dishonorable from service. Degree Murder, felony, Idaho Code Sec- 8) Uncooperative probation while on 18-4001/18-4003, tions which under supervision under past. law imposition authorizes the of the death 9) Acknowledged he has been a bad ex- penalty; having and the Court Ordered a ample good and does not desire to be a pre-sentence investigation of the defendant example family even for his own members. sentencing hearing thereafter held a purpose for the hearing all 6. relevant evi- STATUTORY AGGRAVATING CIR- argument dence and aggrava- of counsel in CUMSTANCES FOUND UNDER SEC- mitigation offense; tion and 19-2515(f), of the TION IDAHO CODE hereby NOW THEREFORE Court 1) heinous, The murder especially was following findings: makes the cruel, manifesting atrocious or exceptional 1. CONVICTION. That the defendant depravity. represented while by Court-appointed coun- 2) murder, By the or circumstances sur- guilty sel was found of the offense of First rounding commission, the defendant ex- Murder, Degree felony, Idaho Code Sec- disregard hibited utter for human life. 18-4001/18-4003, plea pursuant tions to a 3) The murder was one defined as mur- guilty. degree 18-4003, der of the first by Section 2. PRE-SENTENCE REPORT. That a Code, (d), Subsection and it was ac- pre-sentence report prepared by was Order companied specific with the intent to cause Court, copy and a delivered to the being. the death of a human pursuant his counsel to Sec- 19-2515, Code, tion and the Idaho 7. REASONS WHY DEATH PENALTY (cid:127) Criminal Rules. WAS NOT IMPOSED. Defendant did not pull trigger building That a and had left the 3. SENTENCING HEARING. fired; gun hearing competent when no sentencing was held on December evi- 4, 1981, suggested dence that he pursuant and to notice to counsel advised or defendant; Kelly gun anything wrong; use the if for the and that at said hear- went defendant, Prosecution ing, presence in the of the recommendation would in- appeal weight crease the costs of aggrava- heard evidence in and lend Court relevant arguments to the defendant’s mitigation the offense and ar- tion penalty should not have been im- guments of counsel. posed. 4. FACTS AND ARGUMENT FOUND

IN MITIGATION. 1) trigger was not the man Defendant CONCLUSION was, fact, building outside the when That the death should not be killing occurred. imposed capital on the defendant for the 2) No evidence that David had instructed offense of which he was convinced. Kelly any to kill of the if anything victims day December, Dated this 7th 1981. wrong. went Lodge /s/ Edward J. AND ARGUMENT FOUND 5. FACTS Judge District

IN AGGRAVATION. 1) pressure and cope Not able THE IN DISTRICT COURT OF THE THIRD JUDICIAL DIS- IDAHO, TRICT OF THE STATE OF IN AND FOR again. against society may act out THE COUNTY OF CANYON 2) Background includes extensive use of IDAHO, ) OF STATE drugs and/or alcohol. IN Plaintiff, FINDINGS OF THE COURT ) PENALTY ) CONSIDERING DEATH 3) Nothing parents of defendant have 19-515, UNDER SECTION ) past done has served as a deterrent. ) IDAHO CODE WILSON, ) KELLY BRIAN 4) prior criminal record. Extensive # C-4906 ) Defendant. Criminal 5) manipulation and remorse Capable of having defendant been The above-named questionable. First of the criminal offense of

6) convicted is undesirable. Moral character ence of his older brother and the fact that Murder, they drinking. Sec- had Degree felony, Idaho Code 18-4001/18-4003, which under tions 8)The likely defendant is not to commit of the death imposition law authorizes a similar crime in the future. having Ordered penalty; and the Court 5. FACTS AND ARGUMENT FOUND IN investigation defendant pre-sentence of the AGGRAVATION. crime fit all sentencing hearing held a and thereafter Degree requirements material of First hearing evi- purpose for the all relevant Murder, i.e.—intentional—malicious—delib- argument dence aggrava- of counsel in premeditated provocation for erate and —no mitigation offense; tion and of the the offense. hereby NOW THEREFOR Court 6. AGGRAVATING CIR- STATUTORY following findings: makes the CUMSTANCES FOUND UNDER SEC- 1. CONVICTION. That the defendant 19-2512(f), IDAHO CODE. TION represented by Court-appointed while coun- heinous, 1) especially murder was guilty sel was found of the offense of First cruel, manifesting exceptional atrocious Murder, Degree felony, Idaho Sections depravity. 18-4001/18-4003, pursuant plea to a 2) murder, By or circumstances sur- guilty. commission, rounding ex- 2. PRE-SENTENCE REPORT. That a disregard utter for human life. hibited pre-sentence report prepared by Order Court, copy and a delivered 3) mur- The murder was one defined as pursuant defendant or his counsel 18-4003, to Sec- degree by der of the first Section 19-2515, Code, tion Idaho (d), Code, Subsection and it was ac- Criminal Rules. companied specific with the intent to cause being. the death of a human 3. SENTENCING HEARING. That a sentencing hearing was held on December PENAL- 7.REASONS WHY DEATH 4, 1981, pursuant 3 and to notice to counsel TY WAS NOT IMPOSED. The defend- defendant; for the and that at said hear- age he ant’s and the fact that did not have ing, defendant, presence in the any prior per- kind record of were aggrava- Court heard relevant evidence in my that the crime was suasive decision mitigation tion and of the offense and ar- defendant, and out of character for the guments of counsel. likely similar conduct would not occur the future. The defendant was intoxicated 4. FACTS AND ARGUMENT FOUND IN the influence of his brother. under MITIGATION. recommendation would lend Prosecution 1) The years defendant was 19 old when arguments on weight to the defendant’s the offense was committed. expense to the appeal and increase the 2) (in- prior defendant has no record county. misdemeanors). cluding no 3) loving family Defendant CONCLUSION comes from a support Kelly. that continues to not be penalty should That capital 4) imposed on expresses Defendant remorse and is convicted. he was which receptive punishment. offense December, 1981. 5) pled guilty. day of The defendant 7th Dated this Lodge 6) Edward J. Prosecuting Attorney recommended /s/ Judge District against penalty. the death 7) finding Testimony supports a that the Kelly of character for

crime was out happened for the influ-

would but

Case Details

Case Name: State v. Gibson

Court Name: Idaho Supreme Court

Date Published: Dec 15, 1983

Citation: 675 P.2d 33

Docket Number: 14425

Court Abbreviation: Idaho