STATE of Idaho, Plaintiff-Respondent, v. Randy Lynn McKINNEY, Defendant-Appellant.
No. 14551.
Supreme Court of Idaho.
July 26, 1984.
Rehearing Denied Sept. 25, 1984.
687 P.2d 570
Edward W. Pike, Idaho Falls, for defendant-appellant.
SHEPARD, Justice.
This is an appeal by McKinney from his convictions of first degree murder, conspiracy to commit murder, robbery, conspiracy to commit robbery, and the sentence of death imposed upon him. We affirm.
The circumstances surrounding the offense are reviewed at length due to the allegations of error and the imposition of the death sentence. McKinney and his female companion, Dovey Small [who was also separately tried and convicted and whose appeal is also pending before this Court] were traveling from California through Idaho, planning to hitchhike to Montana or Canada. McKinney carried with him a .22 caliber revolver. While the pair were in Malad, Idaho, they were joined by Small‘s sisters, Ada and Kathy, where McKinney showed his gun and indicated he had entered the “big time.” The group traveled to Blackfoot, where Ada called Bob Bishop (a stranger to McKinney and Small), who agreed to transport McKinney and Small to the interstate highway where they could continue their hitchhiking journey. McKinney stated to Kathy, “I‘m going to blow him [Bishop] away.” When Bishop arrived, Kathy warned him about McKinney and his gun, and indicated that he [Bishop] might get hurt. With a group in Bishop‘s car, McKinney, seated in the rear, pointed his index finger at Bishop as if it were a gun.
At a later time, out of Bishop‘s hearing, Dovey Small stated that Bishop had a lot of money and that she and McKinney were going to kill him for some money because they had to leave Idaho. At a still later time, Small and McKinney discussed killing Bishop and taking his car, money, and credit cards. Dovey Small attempted to get one Wheeless to kill Bishop, and, when he refused, McKinney asked Wheeless to recommend a good place for the killing, which Wheeless also refused. McKinney then stated that he would “just take him out on the desert and shoot him and throw some bushes over him and just burn him so they can‘t trace him ....” Dovey Small agreed and urged that they get it over with quickly.
Bishop drove Dovey Small, Ada, and McKinney to Moore, Idaho, where Dovey Small and Ada remained. McKinney and Bishop drove to an abandoned gravel pit, presumably for target practice. While Bishop set up targets, McKinney shot him through the arm and chest. Then McKinney walked to Bishop and placed four more shots in the back of Bishop‘s head. McKinney then returned to Moore and picked up Ada and Dovey Small. When Ada asked for Bishop, McKinney replied that he had shot him in the stomach and five times in the head. When Ada expressed disbelief, McKinney took them to the site and showed them the body of Bishop. Ada was then taken to her home in Blackfoot. Small and McKinney then drove to Kathy‘s house, where Dovey Small stated that McKinney had shot Bishop. Small and McKinney next drove to Pocatello, Idaho and bought some gas with Bishop‘s credit card. They then called Ada to inform her that they were returning to her home, at which point the police were called. When the police arrived at Ada‘s home indicating they had a report that there had been a shooting, Ada told the officers that she saw Bishop‘s body, that she knew where it was, that McKinney had killed him, that there was a weapon, and that the weapon was in the car driven by McKinney.
When Small and McKinney returned to Ada‘s house, two police cars followed the vehicle. When McKinney exited the car, McKinney was required to raise his arms, and Officer Frew approached McKinney, conducted a weapons search of McKinney‘s person, and asked him if he had shot anybody. McKinney said he had not, at which point Frew asked McKinney if he had a gun. McKinney answered, “Yes, it‘s in the car. Go ahead and get it if you want.” Frew left the scene momentarily and McKinney entered Ada‘s trailer house.
McKinney asked Ada, “What did you say?” and Ada‘s husband replied, “What
The doors of the vehicle driven by McKinney had been left open and the officers looking in the car saw a purse with a handgun sticking out, a light brown wallet, and several other items. Frew inspected the wallet and found Bishop‘s credit cards and identification. When the handgun was removed from the purse, the smell indicated it had been recently fired. All items were then replaced in the car, which was locked and sealed, and a warrant obtained.
Frew drove McKinney to the Blackfoot jail, and during the trip McKinney was read his rights from a Miranda card, but told that Frew did not want to take any statement from him at that time. The next day shortly after noon, three officers met with McKinney and indicated they were investigating a possible shooting. McKinney was read the Miranda warnings off a Miranda card, at which point it was discovered that the officers did not have the written form for the signature of the person being questioned. In answer to a question, “Having these rights in mind, do you wish to talk to us now,” McKinney stated that he did so desire to talk. McKinney was asked what he had done during the preceding day, and he stated that he and some friends had gone to Pocatello. He was asked if he was mistaken and meant Arco, to which McKinney responded, “No, I‘ve never been to Arco.”
At this point, a printed waiver form had been found, and it was given to McKinney, who read it, initialed each provision, and then signed the form. McKinney was then confronted with the fact that others had told of the events of the previous day, and he was asked if he would tell the whole truth. McKinney then gave a verbal and a written statement to the officers, which included that the shooting was accidental, that McKinney did not remember many of the events, and that, when McKinney returned to the site of the shooting, neither of the women exited the car.
McKinney was arraigned that afternoon and subsequently tried and convicted of first degree murder, conspiracy to commit murder, robbery, and conspiracy to commit robbery. He was sentenced to death for the first degree murder conviction.
McKinney first argues that the trial court incorrectly failed to suppress the evidence of McKinney‘s handgun and Bishop‘s wallet and credit cards. McKinney has no standing to object to the evidence seized in the car of the victim. The car was admittedly the property of the victim Bishop, and the officers had a duty to investigate the murder of Bishop and investigate the victim‘s property for evidence connected with the crime. Further, the evidence seized “was in the plain view of the officers where they were in a place where they had a right and duty to be.” State v. Pontier, 95 Idaho 707, 712, 518 P.2d 969, 974 (1974); see also State v. Smith, 102 Idaho 108, 626 P.2d 206 (1981); State v. Ellis, 99 Idaho 606, 586 P.2d 1050 (1978).
McKinney next asserts error in the admission of oral statements made by him at Ada‘s home on April 8, 1981. The first statement was in response to the officer‘s initial contact with McKinney inquiring whether he had shot anyone, to which he answered, “No.” At that point, the investigation into Bishop‘s murder had not yet focused on any suspect, and for that matter the officers had no certain evidence that a crime had been committed. State v. Wyman, 97 Idaho 486, 547 P.2d 531 (1976); State v. McClellan, 96 Idaho 569, 532 P.2d 574 (1975); see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The second statement was made in response to Ada‘s accusation that “Randy
It is next asserted that the false oral statement given by McKinney prior to the time that the written Miranda waiver form was produced should have been suppressed. We disagree. There is no argument but that the Miranda warnings were given and McKinney verbally waived them prior to his verbal statement. Hence, that statement was not given in violation of the federal constitution. It is argued, however, that, since the waiver was not signed until after the false verbal statement was given, under
McKinney next asserts that the trial court erred in admitting certain testimony of Denise Garner and contends that such testimony was inadmissible hearsay. Garner first testified to the conversation between Small and McKinney as to their plans to shoot Bishop and steal his credit cards. On cross-examination, the defense attempted to impeach Garner by showing that she did not give the police that version of her story until several weeks after the event. The State thereafter, in an attempt to rehabilitate the testimony of Garner, called Tana Hampton, who testified that on the day following the event, Garner related to Hampton the conversation between Small and McKinney. Garner‘s statements to Hampton were designed to indicate that Garner did not fabricate the story several weeks later, and the judge instructed the jury not to consider Hampton‘s testimony regarding the conversation for the truth of the matter asserted.
Garner‘s statement to Hampton was not offered to prove the truth of the matter asserted therein and hence was not hearsay. Isaacson v. Obendorf, 99 Idaho 304, 581 P.2d 350 (1978); Furness v. Park, 98 Idaho 617, 570 P.2d 854 (1977); Patino v. Grigg & Anderson Farms, 97 Idaho 251, 542 P.2d 1170 (1975). Wigmore on Evidence states that “this use of former similar statements is universally conceded to be proper,” and continues
“The effect of the evidence of consistent statements is that the supposed fact of not speaking formerly, from which we are to infer a recent contrivance of the story, is disposed of by denying it to be a fact, inasmuch as the witness did speak and tell the same story....” J. Wigmore on Evidence (Chadbourne ed.), § 1129 at 271 (1972).
See also McCormick on Evidence, Cleary ed., § 244 (2d ed. 1972); 3 Wigmore on Evidence (Chadbourne ed.) § 1122 (1972). See
“Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive but not as substantive evidence. Under the rule they are substantive evidence. The prior statement is consistent with the testimony given on the stand, and, if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should not be received generally.”
Hence, we find no error in the admission of the testimony. However, we need not determine whether, as under the federal
McKinney next asserts that a mistrial should have been declared because he was taken to and from the courtroom in handcuffs. There is no showing here, nor was there at the trial court, that any juror observed McKinney in handcuffs. Defense counsel asserted to the trial court that McKinney was being handcuffed by the sheriff while some jurors were still in the courtroom. At that point the trial court instructed the sheriff to be certain that all jurors had left the courtroom before McKinney was handcuffed. The mere possibility that some juror may have seen McKinney in handcuffs does not satisfy appellant‘s burden of showing prejudicial error on appeal. Annau v. Schutte, 96 Idaho 704, 535 P.2d 1095 (1975); see Rueth v. State, 100 Idaho 203, 596 P.2d 75 (1978).
McKinney next asserts error in the improper publication of the deposition of Dovey Small. That deposition was published, since Small was unavailable due to problems with pregnancy. McKinney sought to have the deposition published in full, including conferences with counsel and Small‘s invocation of the Fifth Amendment.
McKinney also asserts error by the trial court in its sustaining an objection to the introduction of a statement made by Small in her deposition that she had been previously convicted of a felony.
McKinney next asserts that the prosecuting attorney made improper statements during opening and closing arguments. We find no error. See Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977); Jackson v. State, 219 Ga. 819, 136 S.E.2d 375 (1964); Chambers v. State, 134 Ga.App. 53, 213 S.E.2d 158 (1975); State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983); State v. Larsen, 81 Idaho 90, 337 P.2d 1 (1959).
Appellant next asserts the trial court did not properly consider aggravating and mitigating factors as required by
Finally, it is asserted that under our proportionality review mandated by
The convictions and the sentence are affirmed.
DONALDSON, C.J., and BAKES and HUNTLEY, JJ., concur.
BISTLINE, Justice, concurring only in affirming the conviction.
As I noted in State v. Aragon, 107 Idaho 358, 690 P.2d 293 (# 14771) (June 22, 1984), proportionality in death sentencing as once mandated by the Supreme Court of the United States, would be a dead issue other than for the fact that it is required by our Idaho statutory law which is a byproduct of those remarkable decisions of the High Court which served to destroy what in Idaho had been a fair and constitutional system of capital sentencing. It is not easy to rationalize the sentence which was here imposed, as compared to the sentence in State v. LaMere, 103 Idaho 839, 655 P.2d 46 (1982), both at the hands of the same district judge, who had before him defendants convicted of senseless and callous murders. Nor is it readily discerned that there is proportionality in the sentence meted out to McKinney, as compared to the lesser sentence awarded Dovey Small, also convicted of the same murder. The State of Idaho agrees, and in her case, 107 Idaho 504, 690 P.2d 1336 (# 14701), in this Court, argues that she, too, should be handed the death sentence.
“Petitioner‘s primary argument is that the laws and practice in most of the States indicate a nearly unanimous recognition that juries, not judges, are better equipped to make reliable capital-sentencing decisions and that a jury‘s decision for life should be inviolate. The reason for that recognition, petitioner urges, is that the nature of the decision whether a defendant should live or die sets capital sentencing apart and requires that a jury have the ultimate word. Noncapital sentences are imposed for various reasons, including rehabilitation, incapacitation, and deterrence. In contrast, the primary justification for the death penalty is retribution. As has been recognized, ‘the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community‘s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.’ [Gregg v. Georgia, 428 U.S. 153, at 184 [96 S.Ct. 2909, at 2930, 49 L.Ed.2d 859] (1976)]. The imposition of the death penalty, in other words, is an expression of community outrage. Since the jury serves as the voice of the community, the jury is in the best position to decide whether a particular crime is so heinous that the community‘s response must be death. If the answer is no, that decision should be final.” (at 104 S.Ct. at 3163)
In footnote 8 of that opinion he adds that “we have no particular quarrel with the proposition that juries, perhaps, are more capable of making the life-or-death decision in a capital case...,” and in footnote 9 categorizes Idaho as being among the four states where “the court alone imposes the sentence.” If but one more member of this Court would remember a justice‘s sworn obligation to uphold the Constitution of the state of Idaho, that number would be reduced to three. See, dissenting opinion of Bistline, J., and Huntley, J., in State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983).
HUNTLEY, Justice, concurring specially.
I concur in the majority opinion and in the imposition of the death sentence with the caveat and reservation that I remain of the opinion that the Idaho capital sentencing process is unconstitutional in two respects:
- It does not provide for utilization of the jury, which is in violation of both the Idaho and United States constitutions; and
- The sentencing proceeding, as conducted by the trial courts with the approval of this court, by permitting the admission of the presentence investigation report and other hearsay evidence over objection of the accused deprives the accused of the right to cross-examine and confront witnesses.
My reasoning in this regard is set forth in detail in my dissenting opinions in State of Idaho v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), and State of Idaho v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983).