State v. Lindquist

corroborated, herein, the court’s refusal correctly corrobo- facts trial defined gave ration and general cautionary further the cau- instruc- give the requested tionary jury instruction to aid the in deter- of tion discretion. constitutes abuse mining the credibility of witness. cases.) (Citing judge, The trial refusing give the Id. at 531 P.2d at 1182. here, requested instruction issue observed that, It circum- is our view in similar the instruction would serve stances, the court instruct the should never jury, confuse the would constitute a com- testimony should accomplice’s jury that an ment on the evidence the court and be viewed with distrust. would be in conflict with the instruction on having No errors been the assigned, other credibility the of witnesses. judgment of af- conviction is therefore With these trial of the observations firmed. judge, this Court agrees. defendant, having denied that .he SHEPARD, J., C. McFADDEN robberies, was involved in a di- raised MAYNARD,J. DONALDSON,JJ., Pro rect conflict in the evidence on issue Tern., concur. whether accomplice, or not Atkinson was an and the properly trial court submitted that jury.

issue to the in this Under the facts

case, it would have for the trial been error

judge have done otherwise.

As this recently stated State

Boetger, 535, 536, 96 Idaho 531 P.2d (1975): 589 P.2d 101 The propriety cautionary in- giving a Idaho, Plaintiff-Respondent, STATE struction on the of witness credibility

a matter of a trial the discretion (Citing cases.) Considering court. LINDQUIST, Phillip Lewis dispute factual as to whether the threat Defendant-Appellant. made, prosecution we can was in fact No. 12218. hold that refusal the trial court’s give cautionary such a under instruction Idaho. Court of an abuse of circumstances constitutes discretion, the trial court particularly as Jan. 1979. wit-

gave on the cautionary instruction See,

nesses’ v. McKen- credibility. State

na,

In Boetger, give failure to the identical as-

instruction in this case was involved

signed appellant. as error We fur-

ther observed:

By given, jury instructions problems

informed as to inherent More- testimony accomplice. of an

over, giving instruc- requested

tion would have contradiction created a credibility instruction general were they jury was instructed credibility

“the judges sole testi- weight of their

witnesses and hold, under

mony.” Thus we can not Bowles, Moscow,

Allen V. for defendant- appellant. Gen., E. Kidwell, Lynn

Wayne L. Atty. Boise, Thomas, Gen., Deputy Atty. plaintiff-respondent.

BAKES, Justice.

In de- January jury 1976 a convicted Phillip Lindquist Lewis appellant fendant mining penal- who would receive Joy of the first murder of Weitz in the death life January February ty a sentence of 1975. and who would receive the defendant unquestionably district court sentenced Therefore imprisonment. pursuant the version I.C. Eighth violated the pre-1973 effect, provided 18-4004 then § to the United Amendments and Fourteenth “[e]very person guilty of murder in the first States United States Constitution under . degree shall suffer death . . Ch. Furman v. in Supreme Court's decision 2, 276, Idaho 588. In this 1973 Sess.Laws § 2726, 238, 92 33 Georgia, S.Ct. 408 U.S. appeal challenges defendant (1972). L.Ed.2d 346 sentence, on this constitutional legislature, is the fact that Neither grounds. crime, subsequent to the convic- defendant’s Subsequent the defendant’s to sen tion and again amended sentencing, has I.C. tencing, United Court States any § 18-4004 assistance here. Carolina, decided Woodson North by I.C. legislature amended 18-4004 § 280, 2978, 49 S.Ct. provisions to providing “[sjubject which held unconstitutional North Code, 19-2515, every person guilty Idaho mandatory Carolina statute pun- shall be of murder the first virtually identical to the Idaho statute un for life.” by imprisonment ished death or which sentenced. der this defendant was 390. I.C. 154, 3,1977 Ch. Idaho Sess.Laws § Carolina, supra See v. North at Woodson to amended time § 19-2515 was at the same 286, 2978. The version I.C. S.Ct. aggravating into require judicial inquiry in effect the time the defend 18-4004 § finding circumstances and mitigating ant was sentenced unconstitutional un was aggra- that at least one of ten enumerated holding der the the United States Su to in order vating circumstances existed preme Court in the and the Woodson case 154, 4, impose a sentence of death. Ch. § defendant’s death sentence must therefore 19-2827, 1977 Idaho Sess.Laws 390. I.C. § be The set aside. more difficult issue requires Idaho Su- review presented resentencing here is whether on preme any death sentence on may imposed the death this review, for that was delineates standards defendant. 154, 5, added the Idaho Code. Ch. § also 390. 1977 Idaho Sess.Laws authority

There is some proposition that when a statute is deter applied to cannot be statutes These mined be unconstitutional the former were While statutes this defendant. as if it had never statute remains in effect 1977, of which this the crime amended in Independent American been amended. See in 1976 convicted defendant was tried and Idaho, Cenarrusa, in Inc. 92 Idaho Party legislature in was committed 1975. However, 356, (1968). acts are its has itself declared this help in case former statute is of no expressly so de retroactively unless applied constitutionally defec it was since likewise Walker, 73-101; Edwards v. clared. I.C. § 1973, Prior to its amendment in I.C. tive. (1973). The 1977 P.2d Idaho provided: 18-4004 § declaration, specifi no such act contains in “Every person of murder guilty full be in force cally provides that it “shall pun- or be shall suffer death approv passage and and effect on and after prison by imprisonment ished the state 28, 1977. approved It March Ch. al.” life, may jury and the decide which 390. 1977 Idaho Sess.Laws § shall be inflicted.” occasion to recently had See ch. 1973 Idaho Sess.Laws 588. This Court § State, in Wolf consider a similar issue Though pre-1973 permitted (1978). With ref- to death or Idaho 583 P.2d 1011 imposition of either a sentence of the statute set- guidance it no to an amendment imprisonment, provided life erence considered sentencing authority ting deter- forth the factors control 288, 345-48, deciding thority, whether to waive courts S.Ct. J., jurisdiction (Brandeis, under the Youth Rehabilitation (1936) concur L.Ed. 688 Act, -1845, I.C. 16-1801 to §§ Bunney, Chief Justice 98 Idaho ring); Poesy v. Shepard Here, wrote: this statute was en- “Since them P.2d 400 our statutes acted after the ex Flory, murder of Mr. prohibit appli the retroactive clearly selves post facto clauses of the Idaho and federal defendant. cation of the 1977statute to this prohibit Constitutions applying us from it I.C. 73-101. § appeals.” these 583 P.2d at 1015. See that we should con argues state Const., 16; U.S.Const., art. art. § strue the statute under which the defend §9. way ant was sentenced in such We are aware that under the United passes Both constitutional muster. Court’s recent decision argument, and the state in its briefs and Dobbert v. Justice Shepard, of Chief dissenting opinion (1977), it is at least point Ap Criminal out that the Court of arguable provisions that the 1977 act peals in the case of of Texas the State may be applied to this defendant without State, (Tex.Cr.App. Jurek v. 522 S.W.2d violating post the ex facto clause of the permit 1975), to interpreted their statute United States Constitution. In Dobbert the any consider sentencing authority United upheld Court mitigating circumstances which the defend imposition of a death sentence on a defend- turn, might present. ant In ant who was tried and sentenced under Court of the affirmed the United States capital valid statute even imposition penalty of the death in Jurek v. though that statute was not in effect at the Texas, U.S. time the crime was committed. Dobbert (1976), upon the based Texas the amendment to the statute came after of their court’s authoritative construction act, but before trial. 432 at 288- However, is a sub murder statute. there However, 97 S.Ct. 2290. unlike the cir- between the Idaho stat stantial difference Dobbert, cumstances the defendant Lind- case, applicable ute and the Texas to this quist was pursuant sentenced to an uncon- crypti statute in Jurek. The Idaho statute stitutional capital punishment statute. The cally provides “[ejvery person guilty of that amendments, under which the state degree shall suffer murder in the first has argued that the defendant should be death,” provided the Texas statute whereas resentenced, went year into effect a after a defendant after a determination the defendant brought appeal. this At malice, jury, in guilty of murder with least two courts have concluded that this impose either separate proceeding, may factual distinction with Dobbert is decisive death, depending life or penalty of and therefore have refused to order defend- questions, of three one of consideration ants convicted and sentenced under proba was whether or is a which not “there constitutionally defective statutes resen- bility that commit defendant would tenced State, under new statutes. Meller v. criminal acts of violence that would consti (Nev.1978); P.2d 3 Rodgers, State continuing society.” tute a threat (S.C.1978). However, S.E.2d 215 we need not Texas court in Jurek held that this statuto applica- decide whether Dobbert is ry ble to the authorization allowed the au circumstances this case or post thority mitigating whether the ex to consider as well as facto clause of the aggravating determining Idaho requires Constitution a different in- circumstances terpretation. Well principles impose established of whether to a sen on a defendant constitutional law Obviously dictate that we not un- tence of life or death. there is a necessarily reach those constitutional issues. very real between Texas and distinction statutes, See Ashwander v. Tennessee Valley Au- and it Idaho1 is the Idaho statute Watson, decision, distinguished. In Watson 1. A recent Arizona State v. wise Arizona 120 Ariz. provision must like- court ruled that a the Arizona Accord, State, we are bound. To construe our French 362 N.E.2d 834 State, 559 (Ind.1977); Idaho P.2d Kennedy statute as the Texas court has con- Likewise, what the asks (Wyo.1977). state require strued its would that we but, interpret under to do not ignore legislative the manifest intent that construction, rewrite judicial the ruse of mandatory punish- the 1977 stat- like statute to read ment for murder. To do so power have the simply ute. We do would that we rewrite require substantive statutory law. See rewrite substantive court, statutory law. The California 711,716, 535 P.2d State, Newlan v. 96 Idaho recently presented much same ar- Agost v. nom. sub appeal dismissed gument, concluded: Idaho, 46 L.Ed.2d “The People argue finally the de- Hawkins, Anstine v. (1975); fects in statutory scheme California P.2d 677 imposition capital punishment can Idaho first that the argument by judicially be overcome pro- mandated imposing murder statute cedures, which this court pro- should make it can construed this Court to nounce because the Legislature intended to another infirmi- subject constitutional is to write a constitutional death penalty. construction, ap- ty. if a retroactive Such . We decline People’s invita- case, plied poses serious the facts of this tion. interpret, ask us not They but to post ex problems under Art. § facto rewrite the law in a manner which we I,Art. Constitution United States have contrary shown would be to the Wolf v. 16, of the Idaho Constitution. § intent in legislative enacting manifest [a State, 476, (1978); P.2d 1011 99 Idaho 583 Deci- mandatory penalty death statute]. Columbia, 378 City v. of Bouie sions as to criminal defendants (1964). Cf. Dob- S.Ct. L.Ed.2d shall penalty, suffer the death whether imposed (sentence bert v. supra these by judge decisions shall made or pursuant penalty statute death to Florida jury, and to extent jury whether what crime but subsequent to enacted determination is reviewable the trial post held violate the ex sentencing to not to court, court reviewing and/or the and the facto of the States Constitu- clause United scope given of responsibility to be this tion). of Supreme As the Judicial Court court safeguard to against arbitrary im- v. in Commonwealth Massachusetts stated position penalty of the death are matters (Mass.1975): Harrington, N.E.2d legislative of concern. Were this court to like clear instruc- “Apart from what seem attempt necessary to devise the proce- United Su- tions to us from the States dures and criteria we would not in- Court, preme legislative a retroactive vade legislative province, would discretionary mandatory change from also be position having pass in the of an unconstitu- would be death sentence objectively constitutionality on the of law. United post tional ex facto procedures design.” Rockwell of our own Constitution, of 10. Declaration art. § Constitution, Court, Superior v. 18 Cal.3d 134 Cal. Rights of the Massachusetts unfore- An 650, 665, (1976). Rptr. omitted]. P.2d art. 24. [Citations penalty the miti- provision restricted death gating statute which Unlike the circumstances. of the Ar- sentencing court contemplated circumstances the expressly izona statute which under mandatory could consider unconstitutional sentencing discretion, provision Ohio, very 438 U.S. Lockett v. is the statute of the 1973 Idaho court, Arizona statute, sever- essence of ability approach and therefore however, provision was severa- that the ruled Wat- court in Arizona portions Arizona other ble from the defect no answer to the constitutional son is penalty the defendant and ordered death be resentenced statute. the Idaho he be allowed and that any mitigating sentencing judge present to the having the same second murder judicial decision was “not less than seeable may extend equally proc- effect is barred the due ten years imprisonment and the 4004; 276, 2, Columbia, ess clause. ch. § Bouie v. 378 U.S. life.” I.C. § 18— 347, 353-54, Accordingly, L.Ed.2d 894 Idaho Laws 588. S.Ct. Sess. (1964).” be vacated and 323 N.E.2d at 900. must sentence of death court for district cause remanded to the that, argued regard It has also been permitted any punishment resentencing to statutes, language less of the Idaho included lesser the conviction of the the trial court here concluded that he was offense of second murder. obligated to follow Although presents question this case he mandating the death and that Court, impression question aggravating did in circum for this fact consider in our sister states as frequently arisen opportu stances offered defendant a result of the United States nity present mitigating evidence of cir concerning Therefore, Court’s decisions argued cumstances. we decision here statutes. We believe our judgment should affirm the of the trial virtu- supported wisdom of by the collective court. It is true that the trial court did which has confronted ally ever other court approaching state that he was the sentenc this issue: he ing in this case on two bases —one that

had no discretion was mandated “This is not the decisions first time that impose penalty, statute to a death and the Court have United States other, that under the provisions decision of this Court relative invalidated Louisiana McCoy, 94 Idaho punishment. Witherspoon State P.2d capital (1971), judicial Illinois, he had inherent discre impose tion and therefore in Furman again could sentence However, other than death. a careful read were Georgia, supra, Louisiana statutes that, transcript shows while the Each time this effectively invalidated. trial proceeding court so stated that he was Court was called to resolve the sentencing “on the theory question validly defendants [these] bas[e]s,” two abundantly it is clear that he unconstitutionally convicted but sen- was of the opinion McCoy that had been In case we in- tenced to death. each incorrectly decided and that it had no valid structed the trial courts to substitute life ity and should not be followed. According death sentence.” imprisonment for the ly, 157, (La. we are persuaded Jenkins, not that the trial State v. 340 So.2d court, sentence, in imposing 1976). was not influ opinion enced his own strongly expressed See, Commonwealth, 550 g., Boyd e. v. that McCoy case did not and could State, v. S.W.2d 507 Smith (Ky.1977); abrogate penalty man the automatic dismissed, 435 appeal (La.1977), So.2d 1244

dated the Idaho statute. L.Ed.2d 98 S.Ct. (1978); Rondeau, N.M. State v. mean, Our decision does not how (1976); Rumsey, v. 267 S.C. P.2d 688 State ever, entirely the defendant should State, (1976); Collins v. 226 S.E.2d escape the crime of which punishment for (Tenn.) denied sub cert. S.W.2d he stands convicted. When the defendant Tennessee, 905, 98 Morgan nom. 434 U.S. murder, guilty was found of he degree first (1977); Kennedy necessarily guilty was found of lesser State, (Wyo.1977). 559 P.2d 1014 included offense of second murder. Hutter, State v. apparent Neb. 18 N.W.2d We are not unmindful of the (1945); see Arney, people State v. 218 Kan. will of the of this state that perpetra- 544 P.2d 334 imposed At the times be on when the crime was committed and abominable and tors of murders of the most sentenced, defendant convicted and have not recited depraved kind. We crime, for gruesome the included offense of of this details judge, “person cer- trial is a he who decided note that this defendant sufficient to a intelligently classification. commit intellectually to tainly falls within and Nonetheless, money.” for the irrefutable fact remains murder crime was committed that at the time this a Phillip operated One Weitz construction tried, was convicted and and the defendant Washington, and was Spokane, business in there was no valid death sentenced of employer Lindquist. at one time an fact, surely which will statute. This operated a finance business Charles Vetch loophole, largely described as a the conse- evidently a man of Spokane and was quence legislature’s understandable a Weitz formulated Phillip some wealth. and excusable failure to divine beforehand plan gold allegedly to steal owned how the Court in United States at two million Weitz’s father and valued own rather confus- Woodsonwould read its conspira- one of the According dollars. to Nonetheless, decision Furman. Weitz and his tors, elder killing of the must principles law to which we neces- necessary during that wife would have been principles the same sarily today adhere are felt that Phillip Weitz proposed crime. as an preserve which this Court institution money would be neces- sum of substantial justice according to the law—not accord- no He had crime. sary to finance feelings ing to the whims or visceral money and thus ready source sufficient protect every citizen of judges —and wife, Joy killing decided peril this state and nation from the of arbi- Weitz, appear as in such fashion legislative judicial and unbridled trary $60,000.00 collect thereby accident power. was the Joy Weitz proceeds. insurance children, six, The sentence is set aside and the case aged four and mother of three resentencing three, remanded for in accordance of her death was and at timé opinion. with this Phillip pregnant with twins. Weitz con- Vetch, tacted who turn contacted Lind- BISTLINE, JJ., McFADDEN and concur. Joy the murder of quist arranged $10,000.00 paid Lindquist Weitz. was Justice, SHEPARD, dissenting. Chief and Weitz and killing doing actual majority spell out the declines $60,000.00insurance split Vetch were defendant-ap- details of the acts for which proceeds. pellant mur- was convicted of attempts separate Lindquist made five der. decisions light of the recent ex- Weitz, which failed murder Joy all Ohio, Lockett v. 98 S.Ct. among those cept the last. Included and Bell 57 L.Ed.2d hunting acci- plans simulated Ohio, accident, an incident dent, a car-truck (1978), I those details believe in a drugged, placed in was to be which she necessary are the decision. deep a lake. pushed into car the car and took Although defendant-appellant the with the arrest stop The violence did not denied the stand in his own defense and witness, key of the defendant. The state’s testimony key much of the witnesses life, had to because of threats on his case, following trial and con- in the State’s identity un- away with an assumed hidden sentencing, viction but defend- Marshals. The protection der the of U.S. in participation ant confessed his the crime. had Hence, judge was advised that threats trial largely the facts are uncontroverted. witnesses and against certain been made Phillip Lindquist, specifically by as found specta- were taken and security precautions in judge as the rec- trial and indicated Threats were tors at trial were searched. ord, very intelligent and edu- and a family and chil- of upon made the lives graduated high cated man. He from school attorney. prosecuting dren of the and engineering college. studied He attempt which final- engineer calls himself constructibn and for the scenario would Phillip Weitz supervised has numerous and sizeable con- was that ly succeeded on area remote to a categorized Joy As lure wife Weitz projects. struction Bush, ed., 3d pretext help Llewellyn, of in the re- K. N. Bramble needing her covery equipment. of construction Lind- 1969.

quist appear, would on the head strike her beyond it that the United I believe cavil Joy run over truck. and then her with a in the mak- engages Court States location, Lind- appeared Weitz as did country. major ing policy of social quist. proceeded He her on to beat con- are in terms of Such decisions couched club, but wooden head with a two four portions the United States struction of of begged she did not lose consciousness. She the debate has past Constitution. In times her own him not pleaded and of raged whether “intrusion” over such children. life, but those of her unborn him, climb was able to elude court into determinations was policy Somehow she social Not and the doors. back into her car lock in the court scheme for the place correct her access, Lindquist shot being gain able to the court of but I has government, believe window of the through to death closed accepted as conscience largely been then left the and some car. He scene drove is perhaps the nation. demonstrated Such to a away rag miles where he left a red tied response people of our state as predesignated spot stake at a on the road to those which governments decisions seek signal portion to Vetch and Weitz that his intolerance, hatred to remove the cancers completed. of the murder scheme had been disparate treatment of minorities from and majority It is for this crime of this that the face; reapportionment our nation’s Court remands the defendant for resentenc- seeking representa- more redistricting cases for second murder. level; at the state government tive The root cause of what I deem to be require improved seeking to those decisions error, not with majority’s however lies the medium through law enforcement which others. members of this Court but response exclusionary rule decisions. today errs in my judgment, In this Court types of deci- law in the to those value, without sufficient those accepting at face divided United analysis, seriously apoplexy what near ranged from sions has Supreme Court stated in purportedly per- whose own upon joy dependent sheer opinion Woodson. The here is re- majority vindicated or has been philosophy sonal terminology describing strained in its fallen some- have Most us shattered. language and the high actions of the Court recognized and have where in between capital in the area of It punishment cases. always may last resort the court of states that the language of that means), (whatever but that it “correct” confusing.” “rather Rehnquist Mr. Justice resort, spoken last has court of is the states: “The Court gone pillar from clause supremacy concept in the post, with the result that of reason- the sort Constitution, we are the United States able predictability legislatures, follow, we cases as best bound in state courts, trial appellate courts must of can, Su- the decisions of the United States necessity rely has been all completely Ohio, sacrificed.” See supra, preme Lockett v. Court.

(Rehnquist, J. dissenting). Mr. Justice in the Unfortunately, true such is not White, Lockett, has described the Court’s today. area in which we treat Perhaps “about face.” in mind Karl he had 238, 92 S.Ct. Georgia, Furman v. Llewellyn’s doggerel: 346, the court struck down 2726, L.Ed.2d There was a man in our town penalty. At relating to the death statutes and he wise; was wondrous thing confusing. One I best that decision he jumped into a BRAMBLE BUSH however, that the beliefs of clear, was deem and scratched out eyes— both his adopt- were not of the court members some and when he blind, saw that he was life human ed, e., taking of that i. might with all his main and regardless for crime jumped society he into in retribution another one

and scratched them again. in unconstitutional. was of circumstances That this philosophy argued, was What is that denominates madness commented upon, accepted by some members of members of some thought such process firmly rejected court and by majority. the land” and of “law that Court as the What thought by members of the court law not in the us enjoins on of those gained from opinions those as such understand, but attempting of task Furman Georgia, supra, is less than clear apply its responsibility duty the clear and as is demonstrated its own members in “reasoning.” result and subsequent What is important decisions. today bar majority The in the case people what the of nation this and the state us Court tells that in Woodson governments derived from the opin- court’s Furman, in but did not it said mean what believed, ions. It was and not without rea- flexibility rather and that there should son, the court certainty desired and depending offenders disparate treatment of equality of in cap- treatment sentencing for of the offense and on the “circumstances ital crimes. What way accomplish better of the of- propensities and character goals those than requiring the penal- death “practice fender.” told that We are ty. Thereafter question uncertainty no sentencing determinations” individualizing could result and all assuredly would policy” be- only “enlightened is not treated the same. matter No that such a in imperative” capi- comes a “constitutional mandatory penalty had fallen supposedly tal cases. from favor with people legis- and their lators —where the court would lead the arabesque which Ignoring that lateral clear, states would follow. It was in and is certainty and same- takes away courts from my judgment, people desire the where do we ness of of offenders treatment continuation of the penalty. death Since that the assume nonetheless If we arrive. penalty, court had not barred any validity, “plurality” of Woodson it could and should be continued but under what tell. dissents purport does it such procedures prescribed by terms and as disagree I nothing. us inform it tells Many legislatures, court. state includ- punish- is a part. We informed “death are ing Idaho’s, acted, urged so as by other other sanctions” ment different from all responsible state officials. Since that time truly should be and for advice we courts, the states and their and the United that, signifi- I find grateful. Aside from Court, have been locked only a the North Carolina cant discussion of a maelstrom of contradiction and confusion. statute. All of this leads consideration of suggests court Woodson Woodson by today’s majority held to be “to allow the failed North Carolina statute controlling. There three members of the particularized of relevant as consideration join which, some opinion record each pects and of the character reason, is denominated the “plurality.” defendant,” circumstances convicted “the That “plurality” opinion states “we clearly offense,” “possibility particular reject this argument imposition “the [that factors mitigating compassionate or of the death cruel unusual penalty is hu frailties of diverse stemming from punishment”]. p. was said “treats mankind.” The statute Two other members of the Court designated of persons of a all convicted disagree with that view and state that human be fense not unique as individual punish- is a cruel and unusual undiffer ings, but as of a faceless members ment Three oth- any under circumstances. to the subjected blind entiated mass to be er Woodsoncourt dissented members of the infliction of death.” Of White, voting J. joined with Ohio, supra, more Bell v. Blackmun, vintage recent are affirmance of the court below. Ohio, which seem to supra, Lockett v. J. “excruciat- dissented on the basis under considera in Fur- indicate that the statute spirit” expressed agony of the any man. tion there consideration would bar suffering not the was intended to that defendant the defendant either found whether killing. I had no exis- kill in actual and participated psychosis or the any neurosis or err in majority opinion today deem the He considered disorder. personality tent and only examination of our statute its man- vicious deliberate and very cold “the any inexplicably omit consideration undertook to the defendant ner” in which sentencing procedures by the actual utilized once, only woman, not undertook it this kill judge. trial I believe such consideration she was before repeatedly times but several view of necessary desirable but in she was that aware killed.” He “made 242, 96 Proffitt v. S.Ct. “aware that expecting” and and pregnant and Jurek of children already she was mother the Texas, Lockett, (1976). As noted stated, “I have sentencing judge The contained approved the statute Proffitt psycholog- and psychiatric studied all of but six members mitigating list of factors report time presentence reports, ical approving assumed that in of the Court again and time I again. and time reviewed range mitigating that the factors know don’t what my your trial. I 776

DONALDSON, Justice, dissenting. (1) hearing there must to consider aggravating mitigating circumstances and I with agree majority I.C. crime; (2) surrounding the defendant’s 18-4004 in appellant § effect at time sen- guide there must be standards to was sentenced was unconstitutional and of which tencing in its authority election must, that appellant’s death sentence there- degree first live and which murderer shall fore, However, set aside. I am per- die; meaningful (3) shall and there must be resentencing suaded that on pen- the death appellate against the arbi- guard review to alty may imposed appellant on this with- of the sentenc- capricious and exercise trary applica- out working illegal retroactive 4004, ing power. I.C. present § The 18— tion present penalty of our statute. death together appears read with 19-2515 I.C. § A review of recent United States Su- to meet requirements. all the above preme Court cases will show I.C. question raised as to The is therefore 18-4004, together with § when read and Lindquist for sentenc- remanding whether 19-2515, interpreted is constitu- by I.C. § ing under the amended statute works Supreme tional in conformance application of that statute. Ida- retroactive capital Court requirements sentencing. for states, part ho these 73-101 “No Code § Texas, 2950, 262, Jurek v. 428 U.S. 96 S.Ct. retroactive, express- unless compiled laws is (1976); 49 L.Ed.2d 929 Proffitt v. ly Remanding sentencing for so declared.” 242, 2960, 428 96 49 L.Ed.2d U.S. S.Ct. 913 illegal applica- retroactive does not work an (1976); Gregg v. Georgia, supra. tion of the statute. Imposing the penalty for crime facts argument, To consider this several first is inherently murder neither Lindquist was found must be remembered. barbaric nor an unacceptable pun- mode This statute murder. guilty of ishment; always neither disproportion- is it upheld we his have constitutional Georgia, ate to the crime. 433 Coker v. majority The 18—4001. conviction. I.C. § U.S. L.Ed.2d S.Ct. sentencing for invalid infirmi- has ruled (1977); Texas, supra; Proffitt v. Jurek sentencing ties The previously mentioned. Florida, supra; Gregg Georgia, supra. from separate completely statute is Supreme Recent States Court cases United previous sen- Because murder statute. procedural have outlined limits which are unconstitutional, tencing statute was designed penalty that the death ensure un- sentencing case should be remanded arbitrarily imposed. not It capriciously Lindquist crime der the new statute. The adequate procedural the lack of safe- be- changed guilty was found not guards prompted Court change sentenc- ruling. cause of our penalty hold unconstitutional the death protections greater Lindquist affords in Furman v. Georgia, U.S. S.Ct. statute, sentencing previous than did the (1972); Roberts v. Louisiana, understanding what is meant A clear U.S. S.Ct. (1976); v. North I.C. 73-101 § Woodson Car- will show that retroactive olina, resentencing under presents 49 L.Ed.2d no bar Louisiana, 944 (1976); and case. Roberts in this amended I.C. 19-2515 § 52 L.Ed.2d S.Ct. merely A retroactive statute is made (1977). Woodson, As the stated in Court existing prior because it facts draws issue, Furman, explored “the like proce- changes in Thus to its-enactment. procedure employed involves the applicable law been held dural have unique persons State to select The effect of of action. existing causes death.” 428 at irreversible prospective actually such statutes is 287, 96 2983. procedure they since relate nature followed in future. to be procedures mandated 597, Cal.App.2d Weiner, United the Olivas v. recent cases are as follows: P.2d murder, 563, 132

Lindquist Reeves, has been convicted 142 S.W.2d Ky. 283 effect at the same murder statute in (1940).

time of the murder and at his trial. Lind- away impairs “A statute which takes or quist right according has a to be sentenced laws, existing under rights, acquired vested to constitutional standards. Woodson v. imposes a new obligation, or creates a new Carolina, supra. Lindquist North does not disability, respect a new duty, or attaches sen- right wrongly have a vested is deemed ret- past, already to transactions tenced. Mining Co. v. Superior & roactive.” Butte 730, 254, P. 733 Mont. McIntyre, 71

This Court has rejected the “doctrine that (1924). a prisoner, guilt whose by is established pronounce- has followed those This Court regular verdict, is to escape punishment retroactivity. on the definition of ments altogether because the court committed James, 690,448 P.2d 977 Engen v. 92 Idaho an error in passing the sentence.” [cita- (1969). tions The Constitution does not omitted] merely A is not retroactive because law require game should be a to which it is part of factual situation in which a wrong judge move enactment; applied prior to its occurred means immunity prisoner, for the [cita- rather, only when it a law is retroactive tions In this case the court omitted] which have operates upon transactions “only set aside no authority what it had rights which upon been or completed do, required and substituted directions obligations upon or acquired have been by the law to be done upon the conviction passage. its which have existed of the offender.” Co., Mining Frisbie v. Sunshine Bozza v. States, United 160, 166-7, U.S. (1969). 169, 172, S.Ct. 649, 91 (1947). L.Ed. 818 See exposing him to Lindquist argues also Chaffin v. Stynchcombe, 412 U.S. resentencing works on S.Ct. 36 L.Ed.2d (1973); North In Dobbert v. ex facto violation.1 post Carolina Pearce, 395 U.S. 89 S.Ct. 97 S.Ct. 2072, 23 L.Ed.2d (1969). Su- the United States L.Ed.2d question in the preme answered that In rejecting a reviewing contention that negative. lower (under court judgment jurisdiction settled, however, that equally It is well granted by a passed after judg passage “the of ex inhibition ment) works a effect, retroactive the Unit “ post give laws does not a criminal facto ed Court said: ‘The truth tried, respects, by the right to be in all is,’ says Chief Justice Parker in Foster v. charged was law in force when the crime Bank, Essex 16 Mass. ‘there no such ” Mississippi, 162 committed.” Gibson thing as a right vested wrong.’ to do 904, 40 L.Ed. 1075 565, 590, Smith, 160, 17 Freeborn v. 2 Wall. L.Ed. 922 provision (1896). constitutional “[T]he per- substantial to secure intended right Because has no vested Lindquist oppres- arbitrary and rights against sonal being sentenced under the unconstitutional Malloy v. Caro- South legislation, sive see statute, it does not work a retroactive ef- lina, 180, 183, S.Ct. fect to sentence him under the constitution- legislative limit the L.Ed. and not to al statute. retroactive effect is obtain- proce- “[A] modes control of remedies and rights ed when a statute is applied to of sub- affect matters dure which do not acquired prior to its enactment.” Dumesnil stance.” omitted]. [citation post “pun- crime, 1. An ex facto law is a statute which more burdensome the for a committed, commission, previously ishes as a crime an after its deprives act when or which one done; charged any which was innocent which makes crime defense available imposed. arbitrarily capriciously at 2298. Id. Finally, at the time Dobbert murdered claim ex facto post second Petitioner’s children, the time statute warn- that at there was in effect a on the contention based there was no children murdered his he the crime of first mur- ing him that in Florida. “in effect” Whether punished by der could be death. contends, the earlier so, because he This is future or not the statute would withstand was, legislature statute enacted attack, clearly indicated constitutional acted, found time he after the severity of murder view Florida’s Florida to be invalid Supreme Court which the punishment and of the Georgia, v. in Furman under our decision impose upon murder- legislature wished to Therefore, petitioner, argues supra. ers. penalty “valid” death there was no reasoning in Dobbert to the Applying the his date of as of the effect in Florida present case, appellant can it is clear that argument sophistic But actions. under the amended statute. resentenced facto post of the ex substance mocks the proce- changed only the legislature The the old statute Whether or not clause. impose whether to determining dures for future, constitu- in the withstand would quantum punish- penalty; the death attack, Florida’s clearly it indicated tional ment and the definition of the crime remain and of the severity of murder view of procedural changes the same. The afford legisla- punishment which degree of greater protection murderers. impose upon appellant significantly ture wished max- provide The statute was intended capricious imposi- against arbitrary deterrence, existence on and its imum Finally, tion at the penalty. of the death as to warning fair provided books statute victim, he was appellant time murdered his which the State culpability punish on notice that Idaho would seek of murder. ascribed to the act his acts with death. 2300. at Id. at 97 S.Ct. change in case, only was “In this at the in effect The penalty It is ameliorative. it was procedural, law of his children two murdered time Dobbert post ex facto law to be for a axiomatic that by the unconstitutional later declared was than the it more onerous must be the time Dob- By Supreme Court. Florida supra law.” Dobbert sentenced, however, a constitu- bert was at 2299. been enact- statute had tional case Although of this my disposition held ed. The United States post ex would not violate the federal facto under the new sentencing him to death clause, are asked to construe the we facto post ex not violate the statute did narrowly. ex The post facto clause more Supreme Court holding, the clause. In so argument is that under the law in effect at First, changes factors. stressed several victim, appellant he clearly pro- time murdered were the new statute made the methods constitutionally altered could not be sentenced to The statute cedural. whether the death determining Thus, employed in surely death. it would violate the ex there was no imposed; was to be post facto clause if he were resentenced at- punishment change quantum in the legislature has procedures death under Second, procedur- tached to the crime. requirements mandated to conform to the new changes al were ameliorative. simplistic This eighth amendment. more safe- significantly statute afforded purpose of the ex argument ignores also penalty was the death ensure that guards to post facto clause. supreme bars a state court from achiev-

according clause was to law at the time when act through judicial Ohio, construc- the same result U.S. committed.” Beazell v. Columbia, City (1925). Although tion. Bouie v. 70 L.Ed. 216 46 S.Ct. post limitation on the ex facto clause is a the power legislatures, process the due of the state ex facto post basis for the underlying manifest it would be Idaho, Plaintiff-Respondent clause is a belief that STATE an act which ly unjust punish as criminal Cross-Appellant, when done. As stated was innocent Bull, (3 Justice Paterson in Calder CREECH, Defendant-Ap- Eugene Thomas 386, 396, (1798) (quoting Dall.) 1 L.Ed. 648 Cross-Respondent. pellant and Blackstone): from No. 12224. could party impossible, Here it is action, when innocent foresee that an Supreme Court of Idaho. converted done, be afterwards should 11, 1979. Jan. law; had, he subsequent guilty by it; therefore, from no cause to abstain abstaining

and all when not unjust.

must of be cruel consequence clause also underlying

The rationale enhancing punish- statutes

prohibits after its commission

ment for a crime depriving a defendant of a defense

statutes his crim- at the time he committed

available

inal act. victim, he appellant

At the time killed his constituted

was on notice that his actions murder, and that

the crime crime could be punishment changed only legislature

death. The by requiring

the sentencing procedures guided and discretion be completely than unre-

channelled rather change is to purpose

strained. The required

provide protections procedural Georgia, supra, and Woodson

by Furman Carolina, supra.

v. North argue today changes I either

Nothing quantum

the definition of the crime or the attached thereto or the therefore, would, re-

available defenses. I resentencing

mand the case for under our

present statute.

SHEPARD, J., concurs. C. notes exclusive. also was noted was not There to learn in presented possibly could be more statute which Jurek involved Texas this case.” explicit mitigating no reference to made factors, inter- but the Texas had so court and the equate procedure To here permit preted the statute a sentencer the cir- and consideration of this defendant mitigating whatever circumstances consider with what was cumstances of crime might despite facial narrow- there blind infliction criticized in Woodsonas the the Texas ness of statute. faceless undiffer- of the death on a I deem record clear here to be me to mass is ac- impossible entiated judge presci- the trial more perhaps cept. expected ence than could be rul- anticipated respect to our With all deference and ings Supreme United States brethren on the Bench of the United States supra. Furman v. The following Georgia, Court, I can neither I regret here judge initially adopted trial a dual court, as a what have said they understand authority approach questioning his court or where they where now stand as a impose a death sentence. The record con- important area they may going in this tains substantial dialogue between court involving capital cases law regarding sentencing op- and counsel his wrong in my penalty. may I well tions, particularly in questioned view of the said they have interpretation of what vitality of McCoy, continued State equally it is will do. they what I believe It is clear may be in today’s majority possible that to me that at the time sen- pronouncing I am sure the understanding. error in their judge tence the trial and believed assumed agony judge an sentencing here suffered impose that he need not the death sentence greater that of Mr. spirit much than statute, supposedly as mandated need Judge Justice Blackmun. This had commute, could grant any withhold or sen- face the human rather than decide tence less than death. sanctity and his chambers while solitude of Following trial was or- defendant considering principle. trial abstract dered to submit to psychological extensive heavy burden I judge shouldered his evaluation, testing psychiatric the re- decision, think this Court should affirm sentencing sults of which were before the leaving United States ordered, judge. presentence A report was Court, desire, option so decid- they if prepared, submitted and considered Lindquist. Phillip the fate of Lewis judge. An opportunity trial was furnished provide the defense to miti- any matters in DONALDSON, gation. J., concurs. judge specifically

Case Details

Case Name: State v. Lindquist

Court Name: Idaho Supreme Court

Date Published: Jan 11, 1979

Citation: 589 P.2d 101

Docket Number: 12218

Court Abbreviation: Idaho