*1
STATE of OSBORN,
David Allen
Defendant-Appellant.
No. 13400.
Supreme Court of Idaho.
July
407
cisión, fact, findings of and conclusions of appellant law were issued was sentenced to death.
Appellant filed motions for correction or sentence, reduction denied were *3 Appellant filed district court. also petition for review of the sentence and a appeal to this court. The matter notice of a dual basis: under the before us on procedure mandatory set forth in review appeal and under I.C. brought by appellant. background
II Factual having place, following No taken trial Gaylen L. Box of McDermott & McDer- facts are established and taken from the mott, Pocatello, defendant-appellant. hearing. preliminary record of the Gen., Leroy, Atty. Lynn E. David H. Appellant and the murder victim were Gen., Boise, Thomas, Deputy Atty. cafe, employed both at a Pocatello worked plaintiff-respondent. together, appeared get along and well. They together were seen in a room the McFADDEN, Justice. Holiday Pocatello Inn on October background I Procedural employee of the hotel who delivered a room service employee order. This testified Osborn, appellant, David Allen was appellant that sign instructed the victim to charged with October arrested and his spelled name to tab and out “Os- murder of Charlotte Christine Carl. born” for her. Appellant arraigned magis- was before trate division of the Judicial District Sixth evening, appellant The next October 29,1978 charge on on November first stopped was aby police Pocatello officer for degree public murder and a defender was driving in an inattentive manner. The offi- appointed. a preliminary On December cer appellant felt that was sufficiently not hearing appellant held was was and bound arrested, intoxicated to be he did but ask Judge over District for trial. Before Sixth vehicle, passenger the female in the whom 11, appellant Arthur on December Oliver Chris, appellant called drive. Later that pled guilty and filed a notice intent night, partially Christine Carl’s clothed rely upon mental or defect as an disease body along was found road on the out- examining psychi- affirmative defense. An skirts of Pocatello. been She had shot appointed by atrist court at was this head, three times in the once the shoul- time. 18-211. I.C. der, and once in the abdomen. Her face Following discovery argument bruising side, and on showed extensive on the left here, appellant, various not in and patholo- motions issue her nose was fractured. The 21, 1979, May plea gist his performed on withdrew of not who autopsy believed guilty guilty plea entered a to the and bullet wound behind the victim’s ear charge degree of first murder. The was a close contact wound while other assuring knowing voluntary after head were probably wounds distance plea, presentence nature of the wounds although possible ordered he stated it was investigation aggravation- they scheduled an that have could been incurred within mitigation hearing. eighteen 19-2515. This pathol- inches firearm. The hearing ogist was held on large June stated that the amount blood matter of was taken under ad- loss that would indicate the victim’s nose prior visement. On June de- had being a memorandum been broken to her shot. opinion He beating also his alcohol/polydrug stated that the social behavior and abuse. could prior shooting, appellant have occurred He also noted that claimed conjectural but noted drugs was as the been on have and alcohol at the time bruising same appellant’s could have occurred had the crime. As to claim beating with simultaneously nothing occurred he remembered the events shooting. evening, psychiatrist stated that in opinion the claim of amnesia was evening, appel- About 10:30 that same genuine, although im- he noted that it was lant, car, driving Christine Carl’s arrived at possible to be sure. It also mentioned acquaintance. the home of an Witnesses at appellant episodes had several pistol home that Osborn testified had amnesia associated with intoxication vest, possession in his and blood on his chest violent behavior. boots; appellant appeared *4 proceedings Ill District court acting “weird,” though the people the house could tell if he drunk was or presentence After report, a submission of drugs; appel- under the of influence aggravation-mitigation hearing “Chris,” he lant stated that had shot and hearing, At held. I.C. § 19-2515. within an time hour’s stated that he had prosecution neither nor defense called buried her in the mountains and that he had witnesses. The state advised the court that placed tracks; body her on some railroad I good “because think we do have a —a appellant also stated that the victim of transpired prelimi- record what in the police had to call the threatened and turn nary hearing calling instead witnesses robbery why him in for and that was he today, rely testimony to on the [I choose] ” occupants shot her. Two of the house were presented preliminary hearing at the . . . . requested car, by appellant to hide the and Similarly, appellant’s counsel upon relied doing large they so observed a amount of brought preliminary the facts forth the passenger seat blood on the front and door hearing reports and in and the the of the car. witnesses, the although no called additional appellant did the court in his own address premises later
Police officers searched the behalf. and found a .22 caliber nine-shot dismantled was at the F.B.I. revolver. This revolver The trial had for court therefore sentenc- Washington laboratory at the time the ing purposes arguments the of counsel and hearing, photograph so a preliminary appellant, presen- the oral statement of
of it was into evidence. An introduced report, transcript investigation tence similarity that due report F.B.I. stated hearing, preliminary and exhibits from rifling marks, gun possession in its examining psychiatrist’s and 18-211 weapon. murder could have been report. report that absent some also stated following aggra- The court found the two gun missing cylinder of the had parts, the vating beyond existed a rea- circumstances following before the manually to be rotated (1) doubt: “that the murder was sonable Sullinger A Mr. testi- round could be fired. heinous, cruel, especially atrocious mani- October, 1978, appellant he sold fied that in festing exceptional 19- depravity,” I.C. § He type discovered. noted a revolver of the 2515(f)(5), “that murder and missing part that the a that it was then surrounding the circumstances its commis- hand cylinder be revolved be- had to sion, the defendant exhibited utter disre- a live round would be tween shots before life,” 19-2515(f)(6). gard for human I.C. § positioned. found, only by prepon- The court also but evidence, appointed fol- psychiatrist who was derance lowing “by prior notice of intent to circumstance appellant’s appellant, earlier con- mental disease or rely upon a duct his conduct in commission defense reported murder, propensity defect under has exhibited I.C. history probably anti- constitute appellant court that had commit murder and will
409
continuing
Idaho’s,
society.”
virtually
threat
19-
statute
identical
2515(f)(8).
legislature in
18^4004
1977 amended I.C. §§
and 19-2515 and
19-2827 in an
added §
factors,
regard mitigating
attempt
objec-
to meet the
Court’s
stated:
to such
tions
statutes.
Sess.Laws Ch.
Court,
bur-
“This
because of the extreme
premise
p. 390. The basic
of Woodson
sentencing judge
imposed
den
cases,
Georgia,
companion
Gregg v.
and its
itself,
by the
offense
has
statute
4H
appeal
provision
imply
less of whether an
is even taken. While this
would seem to
ignore
may
This
indicates to us that we
testimony, pur-
requirement of live
absolute
Moreover,
unchallenged
gravity
errors.
therein,
suant to the last sentence
it must
infrequency
of a sentence
of death and
section,
light
preceding
be read in
imposed outweighs any
with which it
(c) thereof
19-2515. Subsection
might
proposed
justify
rationale that
be
states:
objected
refusal
to consider errors not
“(c)
penal-
the death
In all cases in which
below.
shall,
ty may
imposed,
the court
after
jurisdictions similarly
Other
do not allow
conviction,
investiga-
presentence
order a
appellate
preclude
technical
rules to
a com
according to such
tion to be conducted
prehensive
cases where a
review of those
prescribed by law and
procedures as are
imposed.
sentence of death has been
See e.
shall
convene a
thereafter
261,
g.,
Brown,
(Utah
State v.
607 P.2d
265
hearing
purpose
hearing
all
1980);
McKenna,
v.
476 Pa.
Commonwealth
arguments
relevant evidence and
of coun-
428,
174,
(1978);
179-80
383 A.2d
State
aggravation
mitigation
sel in
413,
1274,
Ceja, 115 Ariz.
565 P.2d
hearing,
offense. At such
the state and
den.,
975,
533,
(1977);
cert.
shall be entitled to
defendant
(1977);
Martin,
vation in this case was speaks The section of the entitlement of the *7 not in error. parties they present whatever evidence Facially, provides: I.C. 19-2516 § aggravation-mitigation desire hear- at the “Inquiry into circumstances —Examina- ing. regarding decision the The ultimate tion of Witnesses. —The circumstances opportunity clearly use to made of that be by presented testimony must be the of party. precise But rests with each the court, open except in witnesses examined question by appellant raised is whether the is so sick or as that when a witness infirm testimony live mandate of I.C. § attend, deposition may to be unable to granted displaces or excludes the discretion by magistrate county, be taken a proceed to the state on how to at the hear- court, upon out of such notice to the e., ing, absolutely i. whether the statute party may the direct. adverse as court requires testimony open live in court at the testimony, representa- No or or affidavit hearing. aggravation-mitigation We decide kind, written, tion of verbal or can be that it does not. by offered to or received or a The last sentence of I.C. 19-2516 makes § thereof, judge aggravation mitiga- in or that we are to treat both sections as clear except provid- punishment, tion of the as together setting procedure forth the to be preceding ed in this and the section.” added) (Emphasis hearings. pro- followed in such statute ing vides previously presented 19-2516, that evidence contemplated by I.C. repeated trial may need be indeed court its reach decision amplified be parties if are by receiving desired. the unsworn formal state- sides, presented “entitled to by together all relevant evi- ments both [other] they dence” presentence argu- desire. The manifest intent is with the report place possible much respective as relevant informa- of ments counsel. provided tion as can before the sentenc- proceeding appellant this did not provide court. This also serves request present any to the trial court for court with as much information and as com- hearing required by formal plete possible a record as appellate for re- participated objec- 19-2516 but without While, admittedly, speaks view. the section type hearing tion in the more informal of trial, prior light evidence from the by sentencing judge. conducted Af- statute, purpose we see no need complained ter the of statements were requirement to read into the statute by prosecutor, appellant’s made coun- considered, previously other infor- relevant responded responded sel to these state- preliminary hearing mation from is to advising appel- ments the court presented be excluded unless again once them, deny lant would and continued testimony. live certainly This is where true arguing that court should consider appellant also relied the informa- appellant’s age.” (Emphasis original) prelimi- tion in the contained record P.2d at nary hearing, as occurred here.4 there, question While the the unsworn counsel, argument statements or presented court was This here, preliminary hearing use Coutts, P.2d 642 testimony, identical, are not we find the argument with provisions a similar that the analogy persuasive. Where the defendant of I.C. 19-2516 were absolute. In that expressly impliedly agrees dispense case, the defendant claimed that certain formality possible with the under stat- prosecutor remarks during the sen ute, e., presentation i. of all statements tencing hearing equivalent were the of un oath, orally and under and instead allows provi sworn evidence in violation of the presentation prior through of facts evi- split noting sions of the statute. After dence, presentence reports, argument of authority among jurisdictions as for counsel, like, prima and the we find no facie mality required hearings, at such this court error due to such use. stated: system recognize “In a viable order maintain We that cases where the death ordinary sentencing hearings, penalty may imposed under cir- are “under cumstances, hearings Indeed, normally ordinary need such circumstances.” our procedur- strong procedural require- all not be with belief that the encumbered requirements provided legislature al attend a resolution ments should care, guilt especially doing of the issue of innocence. The since be followed with opportunity holds in the absence of an therefore so assures this court appellate explicit request meaningful hear- review. Yet formal make *8 appellant’s object aggravating did district While counsel the yond court factors “be- However, preliminary hearing transcript, the use of doubt.” such an reasonable object unnecessary given he suffi- is noted that did indeed the need evaluation is for a Thus, ciency hearing aggravating mitigating the evidence disclosed therein. cir- new on preliminary hearing opinion express record he relied to as to cumstances and we no arguably mitigating show circumstances what the to show. See record shows fails aggra- facially statutory to vating show the absence of It discussion infra. can also be noted that beyond doubt. problem sufficiency factors reasonable arguable with forced to the facts preliminary hearing Were we evaluate disclosed at evidence adduced record, hearing might preliminary we does sentencing stage, extend to use of that record agree appellant certain facts were not with proper. a use we hold here support findings by adequately proved
443 U.C.A., 1953, are faced with a where “It is to be noted that here situation unreasoning adherence to the formal re- specifically eight ag- 76-5-202 sets forth quirements materially would not add to the circumstances, gravating one or more of objectives. We achievement alleged, proved, which must be and found in the court’s find no error consideration Hence, charged by the fact finder. one preliminary hearing along record with capital felony put with a on notice and the other information before it. is made aware of what the State must Next, prove prepare able to his de- and thus appellant’s
B.
we consider
argument
process
that he was
due
denied
fense.”
since the state did not
him
However,
Sonnier,
379
So.2d
seeking
it was
the death
(La.1979), the
court stated:
aggravating
forewarn him as to which
cir
capital
defendant
entitled in a
“[A]
prove beyond
it would seek to
cumstances
proceeding,
sentencing
no less than in the
sentencing hearing.
at the
reasonable doubt
trial,
guilt or
to be
innocence
informed of
sentencing
While “it is now
clear that
the nature and cause of the accusation
itself,
process, as well as the trial
must
him,
against
1,
art.
LSA-Const.
satisfy
requirements
of the Due Process
(1974),
right
his Fifth Amendment
Clause,”
Florida,
349,
Gardner
430 U.S.
‘[njotice
given sufficiently
. . .
in ad-
358,
1197, 1204,
393,
97 S.Ct.
51 L.Ed.2d
proceedings
vance of scheduled court
(1977),
so
process/notice requirements
the due
opportunity
prepare
reasonable
necessarily
are not
the same
York,
afforded,
as those at trial.
“[setting]
Williams v. New
will be
forth the
’
241, 248-252,
1079,
1084-
alleged
with particularly.”
misconduct
1085,
93 L.Ed.
reh.
Gault,
In Re
U.S.
den. 337 U.S.
69 S.Ct.
93 L.Ed.
(1967).
459 [sic]
Thus, the defendant
is entitled to know
circumstances which the
case,
In the
under I.C.
18-
§§
prosecution
19-2513A,
prove sufficiently
will seek to
upon pleading
19-2513 and
guilty
charge
degree
to a
of first
murder
in advance of
proceedings
court
so that
appellant was informed that he could be
opportunity
prepare
reasonable
will be
death,
sentenced to
or to a determinate or
afforded.” 379
at 1356.
So.2d
imprison-
indeterminate
sentence of life
However, the court
in Sonnier then held
ment. Not
does
notify,
the statute so
standing
that the defendant
lacked
to con-
but the record reflects that the court below
alleged
test the issue because he had not
sentencing possibilities
made the
abundant-
either that he was not so informed or that
ly
appellant
clear to
during
more than once
any attempt
he had made
to obtain the
Indeed,
proceedings.
possibility
information.
capital punishment
point
was noted at each
agree
We
position
with the
taken
proceedings
plea
appel-
in the
where the
Morris,
Utah
Court in Andrews v.
lant was discussed. Whether
the state
supra.
clearly
The statute
forth
sets
urge
would
the maximum
or not
one
of the listed
question
adequate
was immaterial to the
possible.
must
appellant
proven beyond
doubt,
notice to
that it was
We
a reasonable
regard.
find no error in this
outweigh any
must
circum-
shown, prior
imposition
stances
of death.
Morris,
(Utah
Andrews v.
P.2d 816
Generally,
apparent
it is
that there will be
1980)
cert. den.
surprise
any given
no
under the facts of
dis-
potential aggravating
case as to what
cir-
missed the defendant’s contention that
cumstances are involved. Both defense
sentencing procedure was unconstitutional
*9
prosecution
partici-
counsel and
who have
given
aggra-
in
was
that no notice
as to the
pated
preliminary
vating
upon
hearing
in the earlier
and
circumstances
which the
sought.
ordinarily
appraised
was
held:
trial will
Utah court
well
and
conversant with the facts and issues in-
“The Court further
are
finds that there
aggravation-mitigation
volved in the
mitigating
no
out-
hear-
circumstances which
ing.
gravity
statute,
weigh
We
of
additionally
circum-
note that
imposition
in I.C.
stances and
would make
19-2515(c), provides
§
that should
penalty unjust.” (Emphasis
of the death
any party present
previously
evidence not
added)
disclosed,
upon
request
court
shall ad-
journ
hearing
opponent
until the
has
appeal
The record on
reflects
had a
opportunity
respond.
reasonable
appellant’s counsel raised below a number
Here, the district
expressly
court
informed
arguable mitigating
such
circumstances
argu-
counsel to disclose the
and
evidence
appellant’s prior
as the nature of
criminal
record,
ments to be
upon
hearing,
history
relied
at the
polydrug
and
his
of alcohol and
abuse,5
personal
the state did so inform the
and
back
appellant. Such
familial
ground,
protections
varying interpretations
and
are sufficient
we will
and
possible
surrounding
from
facts
the of
superfluous judicial
attach
thereto
re-
only
fense. Not
were these issues raised
quirement
formally notify
that the state
they
argued,
were also
in the
particular aggravating
defendant
cir-
investigation
presentence
psychiatric
rely.
cumstance
which it will
reports
clearly
and thus
before the district
question
C. The next
us is wheth-
before
court.
failing
the trial
er
court erred in
to set
19-2515(d) mandatory
I.C.
its
the mitigating
forth
it
factors
considered.
court
writing
terms: “the
shall set forth in
19-2515(d)
I.C. §
states:.
any mitigating factors
considered.”
“(d) Upon the
conclusion of
evidence
reasoning
behind
similar
re-
arguments
mitigation
aggra-
quirement
specific
findings
written
vation the court shall
written find-
make
explained by
the Florida
Court:
ings setting
any statutory aggra-
forth
step required by
“The fourth
Fla.Stat.
vating
Further,
circumstance
found.
921.141,F.S.A.,
judge
is that the trial
writing any
coart shall set forth in
miti-
justifies
writing,
his sentence of death in
gating
and,
if
factors considered
provide
meaning-
opportunity
finds that
circumstances
ful review this Court. Discrimination
outweigh
gravity
any aggravating
capriciousness
cannot stand where rea-
unjust
circumstance found so as to make
required,
important
son is
and this is an
imposition
penalty,
of the death
protection
element added for the
writing
court shall detail in
its reasons
defendant. Not
sen-
convicted
is the
finding.”
added)
for so
(Emphasis
open
judicial
tence then
review
correction,
judge
required
but the trial
previously,
As noted
the district court stat-
issue
to view the
of life or death within
opinion
ed
its memorandum
that it had
provided
the framework of rules
hop-
“searched all the
information before
Dixon,
statute.” State
283 So.2d
sincerely
ing
find
in miti-
(Fla.1973) cert. den. 416 U.S.
gation which would
the circum-
overcome
(1974).
aggravation however,
stances of
such mit-
—
(Em-
igating circumstances do not exist.”
requirement
writ
feel the
We
phasis added.)
findings
pur
The court also made the
serves a
ten and detailed
dual
finding
pose. Initially
of fact:
it focuses the attention of
(1971);
ingestion
drugs
While
or alcohol
D.
next
that the stat-
upon
statutory aggra-
as a
was
relied
is
not
ute
unconstitutional because it fails to
specify
generally
mitigating
argument
vating
This
circumstance. While
the
factors.
Ohio,
disposed
was
of in Lockett
finding
v.
U.S.
of such a
would be ill-ad-
inclusion
G.
next that
lan-
to meet
constitutional
“to
tai-
guage
apply
law
statutory
found
lor and
its
in a
circumstances
manner
beyond
arbitrary
capricious
a reasonable doubt
the district
avoids
inflic-
unconstitutionally vague.
penalty.”
court9 is
We
tion
statutory language
conclude that this
with-
tity sufficient to cause until the BISTLINE, Justice, separately concur- defendant is dead. The director of the ring resentencing. in reversal for department of corrections shall determine guilty pled charge the substance or Osborn to a of first substances to be used degree procedures appeals murder. He now and the to be used in from the imposed upon sentence of death which was execution.” having place, him. No trial taken the fol- argument disposed parte This was of in Ex lowing transcript facts from are taken Granviel, (Tex.Cr.App.1978): S.W.2d preliminary hearing. existence of an area for exercise “[T]he of discretion an administrative officer delegation authority
under
does not
I.
delegation
render
unlawful where stan-
victim,
Osborn and the murder
Charlotte
guidance
dards formulated for
and limit-
Carl,
employed
Christine
were both
at a
discretion, though general,
capable
ed
are
They
together
cafe in
were seen
Pocatello.
application
of reasonable
....
Holiday
in a room
Inn
at the
on October
31st,
evening,
The next
Osborn
appears
Legislature
It
that the
de-
stopped by police
driving
has
officer for
policy
primary
clared a
and fixed
stan-
in an
inattentive manner. Osborn was not
sufficiently
arrested,
intoxicated to be
but
Sullinger
Martin
testified that in October
the officer did ask Osborn’s passenger,
1978 he had sold Osborn a revolver of the
Chris,
whom Osborn called
type
to drive.
agreed
discovered. He
with the FBI
report
weapon’s
as to the
mechanical attrib-
night,
Later that
Christine
body,
Carl’s
utes.
clothed,
partially
was found
the road.
being
After
bound over to district
She had
head,
been shot three times in the
filing
and after
of an information
once in the shoulder
once
in the abdo-
charging him with murder in the first de-
men. Her face showed tremendous contu-
gree, Osborn notified the court of an intent
side,
right
sions on the
bruising
some
on the
rely
on a defense of mental disease or
side,
left
and a fractured nose.
pathol-
provisions
defect under the
of I.C. 18-209.
ogist
performed
who
autopsy
felt psychiatrist
found that he was not
the bullet wound behind the ear was a close
protection
within
18-211,
of I.C. §
wound,
contact
while those wounds in the
indicated that Osborn claimed
history
temple
probably
distance,
were
fired at a
polydrug abuse, and that Osborn claimed to
although he conceded that such could have
drugs
have been on
the time of the
been incurred at a distance of less than
crime. As to Osborn’s claim that he re-
eighteen
pathologist
inches. The
stated
nothing
crime,
membered
psychi-
that the amount of blood indicated her nose
opinion
atrist stated his
that such claim of
had
prior
been
being
broken
to her
shot.
genuine.
amnesia was not
He also stated that in this
the beat-
opinion
subsequently pled
Osborn
guilty. The
prior
occurred
shooting,
but he
court, following
district
hearing,
the suffi-
then
merely conjecture
stated that this was
ciency of which
challenged,
is not
accepted
as
bruising
the same
would have occurred
plea.
After
presen-
submission of a
had
beating
immediately
occurred
report,
tence
an aggravation/mitigation
she was shot to death.
hearing was held.
hearing,
At that
*15
neither
About
night
10:30 that
Osborn arrived at
side called
prosecutor
witnesses. The
ad-
home,
Lucy
driving
Baker’s
Christine Carl’s
vised the court that “because I think we do
pistol
car. He had
possession
in his
and
good
have a—a
record
transpired
of what
in
vest,
Osborn,
blood on his
chest and boots.
the preliminary hearing,
instead
calling
appeared
“weird,”
who
acting
to be
but who
today,
witnesses
rely
to
on the
[I choose]
drunk,
appear
did not
to be
stated that he
testimony presented
preliminary
the
had shot Christine Carl. He first stated he
”
hearing . . ..
The trial court
therefore
mountains;
body
had buried her
in the
then
sentencing
had
purposes
argu-
the oral
put
he said he had
it on some railroad
counsel,
ments of
an
by
oral statement
Os-
tracks. He also stated that she had called
born,
presentence
the
report,
transcript
the
cops
the
on him and
why
that was
he had
and
preliminary
exhibits from the
hearing,
had to shoot her.
report
the FBI
psychiatric
and the
18-211
§
house,
occupants
Two
of Baker’s
at Os-
evaluation.
request,
They
born’s
hid the car.
observed
following
court found the
aggra-
two
blood
passenger
on the front seat and
door.
vating
beyond
circumstances
a reasonable
police
prem-
later searched
(1)
the Baker
doubt:
“the
especially
murder was
ises
heinous,
cruel,
and found a .22 cal. nine-shot revolver.
atrocious or
manifesting ex-
This revolver was at the FBI lab in
ceptional
Wash-
depravity”;
and
“that
ington
preliminary
at the time of the
hear- murder and the
surrounding
circumstances
ing,
only pictures
commission,
so
of it were introduced in
its
the defendant exhibited ut-
report
evidence. The FBI
stated that
disregard
ter
for human life.” The court
gun
weapon,
found,
could have been the murder
also
only by
preponderance
but
cylinder
gun
evidence,
and that the
of the
had
to be
circumstance
manually
Osborn,
rotated before each round could
by prior
conduct and
be
murder,
fired.
conduct
in the
“has exhibited a
19-2515,
propensity
prob-
obviously
an apparent
to commit murder and will
done in
at
objections
meet
ably
continuing
tempt
socie-
to
the Su
constitute a
threat
preme
premise
The basic
of Wood-
Court.
ty.”
cases,
companion
Gregg v.
son and its
Geor
circumstances,
As to
court
gia,
U.S.
succinctly
none
found
there were
Texas,
(1976), Jurek
U.S.
outweighed
gravity
aggra
of the
(1976),
Other
do not allow
appellate
preclude
rules to
technical
a com-
III.
prehensive review of those cases where a
A. The
issue raised
is his
first
Osborn
imposed.
has been
sentence of death
rely-
trial court erred in
contention that the
McKenna,
Com. v.
476 Pa.
423
this
seeking to reach an
We have
any
issue.
no
to examine the
record
doubt
this is such a case. Because
errors affecting
rights
that
the substantial
imposition
accused,
of the death
is irrevo-
though
even
made
not
a
finality,
imperative
ground
Clair,
appeal.”);
cable in its
is
that
State v. St.
3
230,
323,
(1955)
which
sentence
Utah 2d
282
327
standards
P.2d
beyond
(“[wjhile
constitutionally
ordinarily
ques-
fixed be
re-
we will not
raise
proach.”
(foot-
Id. 383 A.2d
tions of
on our own
...
at
error
motion
omitted).
capital
justice
*18
hearing
admitted
shall
and
argu-
at trial
be considered
need
all
and
relevant evidence
repeated
sentencing hearing.
aggravation
mitiga-
be
at the
ments of
and
counsel
hearing,
tion
Evidence
at
trial
admitted
of the offense. At such
offered
but not
may
repeated
amplified
necessary
be
state and the
shall
entitled
or
if
defendant
aggravation
complete
all relevant evidence
the record."
tencing
preliminary
court reads a cold record instead of
hearing is to determine wheth-
hearing
witnesses,
seeing
live
but
er a crime
has been committed and whether
regard
probable
also must have due
for I.C.
19-
there is
§
cause to believe that
2516:
crime was
by
committed
the accused. State
Ruddell,
v.
97 Idaho
open
except that when a witness is
prosecutor
neither
nor
the defense
so sick or
as to
infirm
be unable to at-
any
counsel has
incentive
go
great
tend,
deposition
his
may be
taken
case,
lengths
presenting
or in cross-
magistrate
county,
court,
out of
examining the other side’s witnesses. The
upon such
party
notice to the adverse
preliminary hearing
usually
held at an
may
the court
direct. No affidavit or
early stage in
proceedings
so that
testimony,
representation
kind,
any
or
pre-
defense counsel has had little time to
written,
verbal or
can be offered to or
pare,
having prepared,
or
sees no reason to
thereof,
judge
received
or a
or,
display, his
in some situations
hand —
aggravation
mitigation
pun-
may
examining magis-
well realize that the
ishment,
provided
except as
in this and
testimony
trate is not
any
inclined to hear
preceding
(Emphasis
section.”
add-
merely
questions
raises
of fact. A
ed.)
magistrate
pass upon guilt,
does not
Coutts,
In
State
101 Idaho
609 there seems to be some view in the state
P.2d
this Court held that
ought
that issues
passed upon
of fact
not be
district court did not have to follow the
fact,
State,
either.
in Freeman v.
requirements
formal
19-2516 in the
425
liminary hearing
simply
designed
informed of the nature
is
nor
and cause of the
him,
produce
establishing
against
evidence
accusation
intended to
LSA-Const. Art.
doubt;
1,
beyond a
13§
facts
reasonable
defend-
and to his Fifth Amend-
right
‘[njotice
pleads guilty,
given
ant who
and hence has no
ment
to
.. .
suffi-
trial,
searching
ciently
procedure
pro-
to a
as
in advance of
entitled
scheduled
ceedings
it
opportunity
as a trial before
is deter-
so that
reasonable
reliable
afforded,
put
prepare
he
to death.
“[setting]
mined that
should be
to
will be
alleged
partic-
forth the
misconduct with
argu-
B.
we will
Next
consider Osborn’s
’
Gault,
ularity.”
re
U.S.
process
ment that
was
due
in that
he
denied
1446,
1428,
527,
S.Ct.
459 [sic]
formally notify him
it
the state did not
(1967). Thus, the defendant is entitled to
or
seeking
was
the death
forewarn
aggravating
know the
circumstances
it
specific aggravating
which
circumstances
prosecution will
prove
which the
seek to
sentencing hearing
would at
seek to
sufficiently
proceed-
in advance of court
prove beyond
“it
a reasonable doubt. While
ings
opportunity
so that
reasonable
to
process,
sentencing
is now
as
clear
prepare
bewill
afforded.”
itself,
satisfy
as
well
the trial
must
However, the court then held the
Clause,”
defendant
requirements of the Due Process
standing
lacked
to
contest
issue because
349,
Florida,
358,
Gardner v.
430 U.S.
alleged
he had not
either that he was
not so
L.Ed.2d 393
informed or
he
made
attempt
had
process requirements
due
at trial are not
to obtain that
information.
sentencing.
necessarily
same as those at
People,
Williams
v.
case,
In the
under § 18—
“Unquestionably, torney the need for reliabili- stated that he had discussed with the ty prosecutor the determination of whether subjects that he would “raise impose adversary penalty by aggravation respect with imposi- ” proceedings tion of demands that an accused sentence . . . . proce- The latter rights of dure process. afforded full due Ac- would be to set them writing out in so cordingly, they defendant is entitled in review, are see, available for g., e. Md.Code, capital proceeding, no less Ann. Art. 27 § and since this guilt trial, pose than be will in the or innocence no state, hardship on the we hold *20 426 provide weigh the state must the defendant the gravity aggravating circum- aggravat-
in with a list of capital stances, case the Moreover, but found none. the it will seek circumstances which finding of quoted imply- fact can be read as prove. we must Since remand this case for ing that mitigating there were some cir- resentencing, state can supply the Osborn cumstances, they simply but that did not prior any with such notice future sen- outweigh aggravating circumstances. tencing hearing. Mata, See State v. 125 Ariz. 609 P.2d (1980) cert. den. 449 U.S. question The next before us is wheth- C. (1980) (where failing er erred in the trial court to set mitigating specific factors it trial court apparently forth the considered. made 19-2515(d) is as I.C. follows: finding mitigating circumstances were absent). conclusion of “Upon the the evidence mitigation arguments aggra- in §, 19-2515(d) mandatory is in its court shall make vation the written find- terms; must set trial court forth in any ings setting statutory aggra- forth writing mitigating any factors considered. Further, vating found. circumstance The reasoning a Florida behind in writing any set forth miti- court shall provision judge must justify the trial and, considered gating factors if the writing in sentence of death was ex- mitigating finds that circumstances court Dixon, plained 283 So.2d State outweigh gravity aggravating (Fla.1973) cert. den. unjust so as to circumstance found make L.Ed.2d follows: penalty, of the imposition death step required by “The fourth Fla.Stat. writing court shall detail its reasons 921.141, F.S.A., is that the trial judge finding.” (Emphasis added.) for so justifies of death in writing, his sentence opinion,
In its memorandum the trial court provide opportunity meaning- following: stated the ful by review this Court. Discrimination because extreme bur- “This capriciousness stand cannot where rea- sentencing judge imposed upon den important son is required, and this is itself, by the statute and offense has protection element for the added consciously all the information searched only Not is convicted defendant. the sen- sincerely hoping to find circum- before judicial open tence review then mitigation which would over- stances in correction, judge is required the trial but aggravation the circumstance come view the issue of life or within —however, mitigating such circumstanc- provided by framework of rules added.) (Emphasis exist.” es do not statute.” following finding made The court then in Dixon : by As added the court of fact: “It emphasized proce- finds must be Court further that there are “The circumstances, mitigating by judges which out- dure to the trial no be followed weigh gravity circum- counting process ... is of X not a mere imposition would make stances and which number unjust.” (Emphasis
of the death mitigating and Y number of circumstanc- added.) es, judgment but as to rather a reasoned require impo- what factual situations way to now maintains the sition of can be death and which satisfied finding court interpret the trial this light of the life total- imprisonment mitigating no circum- concluded there were ity present. of the circumstances Review agree. state- cannot These stances. We guarantees that the reasons ments the trial indicate will reach similar transcript in one case the written court examined might out- result to under similar cir- mitigating circumstances which that reached factor, cumstanees another case.” 382 So.2d statutes from sug- other states do gest at 10.3 instance, certain factors. For Model 210.6(4) Penal Code (Proposed Official requirement that the fac- 1962), appears Draft to have been merely tors set considered be forth *21 states, suggests in influential other fol- the procedural formality imposed by legisla- the factors, lowing among others: Rather, ture aas burden on trial courts. being compliance we see therewith as neces- “(a) significant The defendant no has sary to insure Court can make the history prior activity, (b) criminal thorough proper any review of sentence murder was committed the while defend- legislature of death the which in turn re- ant was under the influence of extreme quires statutory procedure pro- of us. The or mental emotional disturbance .... vides that in the first instance the trial (g) murder, At time the capaci- the the mitigating court must set down all the fac- ty appreciate of the defendant the aggravating tors it considers and the cir- criminality [wrongfulness] of his conduct mitigating cumstances it finds. If the fac- or to conform his the require- conduct to outweigh tors aggravating the circumstanc- impaired ments of law was as a result of es, the court tois detail its reasons for so mental disease defect or or intoxication.” finding. By requiring findings, these the 921.141(5); See § Fla.Stat.Ann. Neb.Rev. legislature procedure provided has where 29-2523; Stat. Utah § Code 76-3-207. § on review obligation we can fulfill our Moreover, the Supreme United States determine whether ig- first the trial court Court, discussing in the need focus factors, any mitigating nored overlooked sentencing authority’s spe- attention on the secondly, supports whether the evidence crime, noted, cific circumstances found, aggravating finally factors while upholding Georgia penalty death weighed whether has properly court statute, (the jury au- these factors. Where trial court does thority Georgia) is asked whether “there mitigating set forth the factors has special are facts about this defendant considered, impossible pass it is for us to on against that mitigate imposing capital pun- propriety process weighing of the basic (e. g., youth, ishment his his the extent of undertaken court. trial cooperation police, with emotional having witnesses, heard the is in a far bet- crime.)” state Gregg at the time of position pass ter judgment a first on Georgia, 428 U.S. mitigating aggravating than reasoning is this Court. But if the trial court is not set with forth reasona- argues D. Defendant also that the stat- exactitude, ble this Court would be forced ute is unconstitutional because it fails to to make its inadequate review on an record. specify mitigating argument factors. This legislative We hold that the mandate found Ohio, disposed of in Lockett v. 19-2515(d), mitigating I.C. that all L.Ed.2d forth, factors considered must set must wherein United States be met. held it legisla- was unconstitutional for the viewed, sentencing body’s ture to speculate limit consider-
So
we need not
wheth-
mitigating
er
ation of
finding
question might
the trial
factors to those enumer-
Mata,
have been
ated in a statute.
intended to be understood as a
See State
(1980) (holding
conclusion that
there
no
Ariz.
mitigating
were
P.2d
regard
mitigation
policy
factors.
In this
note
that a
of unlimited
ex-
that al-
is
though
legislature
pressly
has not deline-
mandated
United States Su-
Court).
ated that
a mitigating
preme
which constitutes
19-2827,
imposed.
3.
is
This
with I.C.
where the
consistent
mandates a review
this Court of all cases
E. We next consider whether the trial
are
proved beyond
based be
a reasonable
making
finding, by
doubt,
court erred in
and so construe it.”
evidence,
preponderance of the
that Osborn
Dixon,
Similarly,
supra,
in State v.
“by prior
conduct or conduct
the commis-
court held that
circum-
“[t]he
hand,
sion
the murder at
has
exhibited a
actually
stances . . .
defined those crimes
propensity to commit murder which will
...
applicable
which the death
continuing
probably constitute a
threat
in the absence of
circumstances.
society.”
argues
finding
The state
that this
such, they
proved beyond
As
must be
is irrelevant because" there were two other
being
reasonable doubt before
considered
beyond
circumstances found
by judge
jury.”
So.2d
While it
reasonable doubt.
is true there is
19-2515(f)
states that
least
“[a]t
no indication that
the trial court relied on
*22
[aggravating
one
. . . must
circumstance]
finding
imposing
this
the sentence of
beyond
found
exist
a reasonable doubt
death,
requirement
aggravating
that
imposed.”
before a sentence of death can be
mitigating
against
factors be balanced
language
capable
being
This
under-
important
each other is so
that
error
imply
aggravating
stood to
that other
cir-
might
that
affect
that balance cannot be
cumstances can be found to
a stan-
exist
we reverse
tolerated.
Since
on other
doubt,”
dard
“beyond
less than
a reasonable
grounds, we need not decide whether the
only
aggravating
that
one
circumstance
supports
finding;
evidence
or that
it
“beyond
need be found
a reasonable doubt.”
should have been made at all. But for
This would
aggravating
mean that other
guidance,
pause
future
to consider the
prepon-
circumstances could be found
a
proposition.
evidence,
they
derance of
and that
could
Simants,
v.
Neb.
balancing
be used in
against any
test
N.W.2d
cert. den. 434 U.S.
mitigating factors considered.
S.Ct.
We do not believe that
this is what the
court stated:
legislature
19-2515(b)
intended.
Section
29-2522,
“Section
R.R.S.
now re-
states that the court shall sentence the de-
quires
hearing
a determination after
statutory
fendant to death where it finds a
aggravating
sufficient
circumstances ex-
circumstance,
aggravating
mitigat-
unless
justify,
imposition
ist to
of a death
ing
outweigh
gravity
circumstances
penalty.
As the United States
any aggravating circumstance found. Sim-
Court noted in Woodson North Caroli-
19-2515(d)
ilarly,
states that “if the court
na,
L.Ed.2d
finds that
circumstances out-
‘death,
(1976):
finality,
in its
differs
weigh
gravity
any aggravating
cir-
imprisonment
more
life
than a 100-
from
unjust
cumstance found so as to make
im-
year prison
only
term differs from one of
position
penalty,
of the death
court
qualita-
year
a
or two. Because
writing
shall detail
its
for
reasons
so
difference,
corresponding
a
tive
there is
finding.” In neither of these sections does
reliability
in the need for
difference
legislature
mention the standard of
ap-
the determination that death is the
proof
finding
aggravating
an
circum-
propriate punishment
specific
in a
case.’
gravity
stance. Due to the
of the death
the obvious intent of the
“We believe
penalty,
legislature
we believe
intended
aggravat-
statute is that the enumerated
apply
proof
the same
standard
require strong
circumstances should
aggravating circumstances as for the ele-
proof. Aggravating circumstances are
crime,
e., beyond
ments of a
i.
a reasonable
mandatory
now a
element
to be con-
language
doubt. The
that at least one such
capital
sidered in
cases. The sentence
beyond
circumstance
be found to
aggra-
must
exist
depends upon
proof
of some
it
a reasonable doubt before a sentence of
vating circumstance. We believe
is the
imposed
only
if
require
the facts
death can be
means
intent of the act
found,
single
. . .
even a
such circumstance is
aggravating
which the
circumstances
out, including
imposed.
It
are carried
the burden of
sentence
death cannot be
producing
does not mean that where one such circum-
burden of
evidence
doubt,
beyond
persuasion,’
stance is found
a reasonable
and its decision in
re-
may per-
subject
gard
proscription
follows
other circumstances
un-
n
missibly
by preponderance. Any
be found
der the Due
unless ‘it
Process Clause
interpretation
conceivably
other
could
allow
principle
justice
so
offends some
aggravating
outweigh
con-
deeply rooted in the traditions and
mitigating circumstances in cases where
to be
people
science of our
ranked as
one
circumstance was
omitted)”
(citations
fundamental.’
doubt,
many
beyond
found
a reasonable
but
York,
Patterson
New
by preponderance. A
were found
factual
201-02, 97
”
finding
preponderance
arrived at
(1977).’
the evidence is insufficient
to be entered
case,
In that
then held
balancing process
into the
in the absence of
negate every mitigat-
state did not have to
explicit legislative
directive to that ef-
ing circumstance.
fect.
punishment
Maryland capital
Under the
Next,
argues
process
F.
Osborn
that due
statute,
sentencing authority
where the
is denied
scheme where the
beyond
finds
a reasonable doubt the exist-
penalty may
be arrived
on the
factors,
ence of one or more
*23
finding
statutory aggravating
aof
circum-
whether,
pre-
it
aby
then must determine
stance
mitigat-
unless the court finds that
ponderance
evidence, any
of the
one of the
ing
outweigh aggravating
If,
mitigating
prepon-
exist.
factors
a
circumstances,
that
proof
the burden of
evidence,
derance
the
the
placed
improperly
is
on the defendant. To
body
mitigating
finds
the
circumstanc-
support
argument
Osborn cites Mulla-
circumstances,
outweigh
aggravating
es
the
ney Wilbur,
684,
1881,
v.
421 U.S.
95 S.Ct.
imprisonment
a
life
then
sentence of
is im-
(1975),
“[I]f punishment respon Godfrey supra, Georgia, it has constitutional In v. the United sibility apply Supreme in tailor its law a Court reversed a States sentence manner arbitrary solely finding that avoids and ca death based that of pricious wantonly penalty. “outrageously or infliction death the offense was vile, Georgia Part in responsibility of a this horrible and inhuman.” Code State’s regard 27-2534.1(b)(7)provides per- which that a is to define crimes for Ann. § may way death sentence that of murder be sentenced be the in a son convicted beyond [sentencing] obviates discre if it is found a reasonable ‘standardless to death U.S., Georgia, or Gregg supra, outrageously tion.’ 428 that the offense “was v. doubt 196, S.Ct., vile, n.47, 2936, or wantonly at at horrible inhuman in that 96 n.47. See mind, Florida, 242, torture, an depravity of or also Proffitt 428 96 it involved v. U.S. 913; 2960, v. Tex the victim.” This aggravated battery S.Ct. Jurek as, 262, 2950, 428 96 L.Ed.2d had been upheld U.S. S.Ct. 49 circumstance Gregg 929. It on its face must channel the sentencer’s dis as not unconstitutional 153, objective Georgia, cretion 96 49 ‘clear standards’ v. 428 U.S. S.Ct. provide guid that ‘specific and 859 wherein the Court noted detailed L.Ed.2d ance,’ although arguable any ‘make it that mur- rationally and that reviewa that process imposing depravity aggra- ble mind or an a sentence of der involves of Gregg, battery, no reason to assume death.’ As was made clear in “there is vated ‘system Supreme Georgia will could have stan Court that open-ended such vague they adopt dards so would fail ade an construction.” quately to channel the deci 96 2938. Subse- S.Ct. Supreme adopt- patterns juries Georgia sion with Court quently, the result
431
limiting
ed a
construction
What
suffering
offense
others.
is intended to
“torture, depravity
had to
capital
demonstrate
be included are those
crimes
mind, or
aggravated battery
capi-
to the vic-
where the actual commission of the
tim.” 100
S.Ct. at 1766.
felony
accompanied
tal
was
such addi-
apart
as
crime
from
tional acts
to set the
however,
in Godfrey,
evidence
capital
felonies —the eon-
norm
showed
defendant did
torture
pitiless
or
unnec-
sciousless
crime
aggravated battery upon
or commit an
essarily tortuous
283
victim.”
Supreme
victims. The
Court therefore held
9.
So.2d at
validity
of the death sentence
upheld
The United States
on
Georgia Supreme
turned
whether
provision, holding
say
this
cannot
supplied
Court had
“[w]e
constitutional con-
construed,
provision,
provides
that the
as so
phrase “outrageously
struction to the
or
inadequate guidance
those
vile,
charged
with
wantonly
horrible or inhuman in that
duty
recommending
imposing
sen-
. .
[they]
involved .
depravity of mind
”
Florida,
capital
tences in
cases.” Proffitt v.
. . ..
Id. at
court found that
242, 255-56,
428
49
U.S.
96
“crimes cannot
defendant’s
be said to have
L.Ed.2d
also State v. Wat-
See
materially
reflected a consciousness
more
son,
1259;
supra, 586
v.
P.2d at
State
‘depraved’
any
person guilty
than that
Knapp,
114 Ariz.
ply
murder
“In interpreting
portion
same manner as
of the stat-
*25
“especially heinous,
ute,
atrocious
key
or cruel.”
‘exceptional.’
word is
It
might
argued
every
that
in-
murder
Dixon,
(Fla.1973)
So.2d
depravity.
volves
The use of the word
cert.
den.
U.S.
however,
‘exceptional’,
confines it
to
L.Ed.2d 295
the defendant attacked
appar-
those
depravity
situations where
the constitutionality
aggravating
cir-
ent
obviously
to such an
extent
to
capital felony
espe-
was
“[t]he
cumstance —
morality
offend all standards of
and in-
heinous,
cially
atrocious or cruel.” The
telligence.”
interpreted
Florida court
these terms as
State,
In Blake v.
239 Ga.
236 S.E.2d
follows:
(1977)
cert. den. 434 U.S.
98 S.Ct.
meaning
feel
that
of such
“[W]e
433 19-2827(e)(2)4 pro- resentencing. explicit While statement that it was not con- resentencing by judge vides that trial circum- a sidered as upon shall argu- be “based record my does the rest of Such not alter stance. counsel,” inadequate ment of where an E, under III however. analysis improper grounds one record is of the reverse,
error which the defend- II. hearing entirely ant’s shall de novo. opinions— Supreme Two recent Court resentencing. Reversed and remanded for Raddatz, United States ADDENDUM (1980), and Es- foregoing Since the was written cir- Smith, telle v. 451 U.S.
culated to the members of other be added —-must year major- proposed in October of last as a in III A. to the discussion ity opinion,1 regard research done in to oth- brought my er cases has attention to the A. applicability of two recent States United Raddatz, a case wherein there was far Supreme to Court decisions III A. us, than in the now less at stake case before Supreme Court stated:
I.
guarantees
process
“The
of due
call for
discussing
Before
cases, however,
those
E,
‘hearing appropriate
a
to the nature of
regard
with
to III
further
review has
Central Hanover
case.’ Mullane v.
convinced me
there is merit
in the
Co.,
&
Bank
Trust
Court’s view
finding
trial
court’s
preponderance
652, 657,
evidence
L.Ed.
us, therefore,
Osborn “has
exhibited
propensity
com-
issue before
whether
mit murder
will probably
presented
constitute a
nature of the
and the
issues
continuing
society”
threat
was
implicated
not error
sup-
interests
in a motion to
in this case
because
the court’s later
press
require
evidence
the district
19-2827(e)(2) provides
processes.
4.
example coming readily
this Court
One
may:
and,
any
likewise,
adoption
mind is
case
<
“Set
the sentence aside and remand the
child termination case.
resentencing by
judge
case for
the trial
based
Generally
preferen-
such cases have received
argument
on the record and
of counsel."
treatment,
anyone
tial
and I
think that
do not
complain
place.
opinion
purposefully
would
That
that such takes
Death
out
laid
parts,
thereof,
cases,
subparts
juvenile
proceedings,
and in
order make
like
waiver
expeditious
State,
it convenient and
for the other Jus-
see Dillard v.
623 P.2d
Idaho
they agreed
tices
type
declare wherein
unique
lengthy
are of
where
they disagreed. Correctly surmising
wherein
delays
judicial process
in the
cannot
tolerat-
grounds
that sufficient
existed to necessitate a
ed,
prejudice
and can lead
to claims
or of
hearing,
second
I was not so naive
punishment,
especially
cruel
and inhuman
anticipate
as to
that all members of the Court
kept dangling
where
row
are
defendants
would concur
across
the board on those
indefinitely
processes
appellate
grounds
reversal,
required
which I felt
and a
knowing
eventually
they
whether
will or will
sentencing hearing.
type
second
of format
judge performed
not be executed. The district
Wagenius,
used
the author of State v.
required
alacrity,
the function
with
of him
not-
“In not on a cold Eldridge, Mathews v. produced preliminary hearing record at a was, all, which as are conducted for an emphasized that three factors different, entirely special, pur- and limited should be in determining considered pose. concepts whether the proc- flexible of due (a) ess have private been satisfied: factor, public The third that of the inter- implicated; (b) interests the risk of an requiring est and administrative burden in erroneous determination reason of the hearing, an additional is rather inconse-
process probable accorded and the value quential, perhaps, pales but for certain procedural of added safeguards; (c) significance against when measured public interest and administrative other producing two factors. The cost of burdens, including costs that the addi- witnesses, probably some but not all of the procedures tional would involve.” 100 prelimi- same witnesses who testified at the S.Ct. at 2413. nary hearing, surely greater would be no Considering order, bring those than what it would have cost to three factors in them first it pleaded guilty is at once obvious and to trial unneedful had Osborn —the private further discussion that doing saving of which Osborn effected a interest implicated unquestionably Idaho, here State of kindness on his e., highest degree, i. part weigh whether the in his defendant should favor in consider- shall live or shall die. This consideration whether witnesses should have testified weighs heavily alone sentencing so that the other judge two live before —as require against saving considerations but little comment in of a few dollars. passing. legislature it The short of is that the did factor, The second that of the risk anticipate might of an that a defendant enter murder; erroneous probable plea guilty degree determination and the a to first Martin, plea guilty following In State v. 94 Wash.2d 614 P.2d of not and a trial but not “[c]Iearly plea guilty. court noted that Washington legislative legislature anticipate possibility did not contemplate scheme did might plead guilty charge that an accused to a authority, jury guilt, there the which decided Thus, degree simply of first murder. failed to having heard the evidence which established provide eventuality.” for that Id. 614 P.2d at guilt, would determine the sentence. With a Washington statutory 167. Since the scheme pleading guilty, jury there was no defendant provided jury that the same which determined pondered upon the evi- which had heard guilt shall be reconvened to determine whether dence. penalty imposed, the death shall be and since legislature rather obvious that the Idaho It is jury the same trial cannot be “reconvened” on 19-2515(c) similarly simply enacting I.C. plea murder, guilty degree to first the court possibility anticipate the that a defend- did not plea guilty degree held that to first guilty degree plead first murder. ant would murder a defendant could not be sentenced to part 19-2515(c) provides in all “[i]n Washington death. The court reaffirmed Mar- be im- Frampton, cases in which posed, tin in State v. 95 Wash.2d shall, conviction, after order a (1981), going P.2d 922 on to hold investigation presentence ad- .... Evidence statute was unconstitutional since it allowed imposed following be considered and need not the death to be shall mitted at trial *28 long the legislature right it is that defendant he the that had the to remain silent and that what he told the today now decide itself if the Court him, psychiatrist against used could be correctly interprets legislative the omission sentencing phase capital the of a case vio- pleading guilty allow defendants to that lated both the Fifth and Amend- Sixth charge to have their lives terminated Grigson In that case Dr. ments. examined government person judge action in the of a he defendant to determine whether countenances, who has not viewed man- competent Subsequently, to stand trial. af- nerisms, and voice inflections those who murder, ter defendant was convicted of particulars recount the of the crime. One Grigson state used Dr. as a witness to es- might ponder upon also likeli- extreme probability that was a tablish there that trial, sentencing hood at a unlike the acts of defendant “would commit criminal hearing, preliminary impeaching usual evi- continuing violence that constitute a would might dence also be submitted. society.” Supreme threat I Finally, only procedure add that a cho- held as follows: prosecuting sen attorney, even distinguish “We can no basis discern though might not be held error because phases guilt penalty between the public acquiescence defender’s there- respondent’s capital murder so far trial as in, thereof, acceptance and the trial court’s protection the Fifth Amendment ipso does statutory facto meet the re- privilege is gravity concerned. Given the quirement, the be exact fulfillment of is the decision to made at the which phase, is placed State relieved necessarily before five-member obligation to observe fundamental consti- compliance. tribunal for review as to Al- guarantees tutional .... effort Any though plainly it is be seen that I.C. compel respondent testify the State to 19-2515(c) provide does the sentenc- against sentencing hearing his will at the ing court is to receive “all relevant evidence clearly would contravene the Fifth aggravation ... mitigation” (which attempt Amendment. Yet State’s I submit would be the case even absent respondent’s dangerous- establish future phrase), nothing approaches dig- therein by relying ness state- on unwarned nity impliedly negating the clear man- Grigson similarly ments he Dr. made to date sentencing of I.C. 19-2516 that the infringes Fifth Amendment values. hear circumstances of the crime open from “witnesses examined in Grigson’sprognosis “Dr. as to future dan- than, court” other as under 19- I.C. § gerousness respon- on statements rested 2515(c), sentencing where judge al- has made, omitted, dent and remarks he ready testimony heard the at trial. reciting the details of the crime. The therefore, privilege, Fifth Amendment B. directly here involved because Smith, supra, Estelle the United against respondent used evidence States Court held psy- that use of during substance of his disclosures testimony, chiatric obtained without warn- pretrial psychiatric examination. repeated sentencing hearing.” tencing authority testimony These hear provisions contemplate body produced same would have been at trial had there trial, clearly heard the awry evidence trial decide goes shall been the Court imposed; whether the death failing shall require compliance absolute in what presented evidence peated at trial need not be re- generally accepted as a matter of some seri- because the as the ousness. body, already has heard that Al- evidence. It should be noted in with this connection though, Washington, unnecessary unlike in it is unique problem plea some states refuse statutory to invalidate the Idaho be- scheme See, guilty capital g., in a case. e. La.Code failing, cause of this it does further substantiate 557; Crim.Pro.Ann. art. N.J.Stat.Ann. my view that it was error for the trial court to (repealed along 2A: § penalty); with the death rely preliminary hearing transcript; on the 220.10(5)(e). N.Y.Crim.Proc. scheme mandates that the sen- *29 tempts any psychiatric to introduce evi- dence, may compelled respond not be Grigson interview with Dr. cannot “[T]he psychiatrist to a if his statements can be competency be characterized as a routine against capital sentencing used him at a ensuring examination restricted to If, proceeding upon being .... ade- respondent charges understood warned, respondent quately had indicated against capable assisting him and was Grigson’s that he would answer Dr. not Indeed, application in his defense. if the questions, validly competency ordered Grigson’s findings of Dr. had been con- pro- examination nevertheless could have function, serving fined to no Fifth ceeded the condition that the results Amendment issue would have arisen. solely applied purpose would be for that “Respondent psychi- . . . no introduced that, must conclude when faced “[W]e evidence, atric nor had he indicated that custody while with a court-ordered Instead, might he do so. the State of- psychiatric inquiry, respondent’s state- fered information obtained from the Grigson ‘given ments to were Dr. competency court-ordered examination as freely voluntarily without com- persuade jury affirmative evidence and, such, pelling influences’ could be to return a of death .... sentence To penalty phase used as the State did at burden, respon- meet its used respondent apprised if had been statements, unwittingly rights knowingly dent’s own made his and had decided to safeguards waive them .... These without an awareness that he was assist- privilege the Fifth were Amendment ing the State’s efforts to obtain the death and, thus, respondent afforded his death circumstances, penalty. In these distinct sentence cannot stand. Appeals correctly the Court of concluded respondent “When was examined privilege Fifth Amendment was Grigson, already Dr. he had been indicted implicated. attorney appointed and an had been represent .... him had a Sixth [H]e calling “The consideration for the ac- right Amendment to the assistance of prior cused to be warned to custodial submitting pretrial counsel before interrogation apply with [under Miranda] psychiatric interview .... pretrial psychiatric no force less at .... examination issue here When “Therefore, in addition to Fifth Grigson beyond simply report- Dr. went considerations, Amendment the death compe- to the court on the issue of improperly imposed was on re- prosecution tence and testified for at spondent psychiatric because the exami- penalty phase on the crucial issue of Grigson nation on which Dr. testified at respondent’s dangerousness, future phase proceeded in violation changed role essentially and became like respondent’s right Sixth Amendment agent recounting of an of the State to the assistance of counsel.” 451 U.S. at post-ar- unwarned statements made in a 471,101 at 1873-1877. 454— setting rest custodial .... Yet [Estelle] case, In the the trial court its given compul- no indication that “[p]rior stated evalu- memorandum decision sory gather examination would be used to by Dr. Reichman ations and the evaluation whether, necessary evidence to decide if has an anti-so- indicate the defendant convicted, he should be sentenced to personality.” cial Thus the trial court did that, death. He was not informed ac- evaluation in sen- psychiatric utilize this cordingly, he right had a constitutional Although tencing phase of Osborn’s trial. not to questions put answer the to him. voluntarily underwent this exami- Osborn nation, purposes only for the he did so defendant, “A criminal who neither ini- determining competency to stand trial psychiatric competency tiates a time of the act evaluation nor at- charged. warned At no time was Osborn might at his hear- the state
ing make statements made use of examination,
psychiatric Osborn nor did *30 use
consent to such of his own statements.
Furthermore, Osborn withdrew claim his precluding responsibility
of mental defect plea guilty.
when he of not It withdrew psychiatric
would seem to follow that
report point from that on be could not voluntarily given and available
classified as purposes, especially purpose
for all
sentencing.
The question then is whether evidence
gained as a of this was result examination
improperly establish an used
circumstance, light viewed excerpted
statements from Estelle. Since remanding resentencing,
we are for it is
perhaps unnecessary that now point question,
decide this and I raise the may give so that the district court possibility excluding
consideration to
evidence, may the admission of which neces- resentencing.
sitate a second remand for regard should also be noted that in Es- Court’s considerations apply presen-
telle could also to the use of reports presentence
tence where investi-
gator incorporate own defendant’s conduct, written statement criminal report
or a of a defendant’s oral statements
thereof, proper without observance Fifth rights. Sixth Amendment Brammer, pro
Werner
se.
July We affirm. requires county assessor carry continuing pro-
to conduct and
out a
notes
cases when
interests
so
require
proceeding
the entire
should be re-
Brown,
Similarly, in
v.
Notes
notes imposed mitigat- if the court, case us the district before outweigh circumstances do not using only statutory language, wrote Al- circumstances. heinous, especially “the murder was though sentencing authority still has cruel, manifesting exceptional atrocious statute, guided discretion under it is depravity,” “by the and that murder and objective clear and standards.” surrounding the circumstances its commis- scheme, Under the Idaho sion, the defendant exhibited utter disre- guided. trial court’s is properly discretion gard for human life.” district court nothing mandatory There is which is made apparently compelled explain did not feel the statutory provisions; without resort to reasoning findings beyond behind these a full opportunity defendant has Nothing his narration of the facts. such, mitigating factors. As hold, require more. statute seemed to We scrutiny. withstands constitutional however, phrases, that these without a lim- definition, iting are unconstitutional. Be- Next, argues aggra- G. that the Osborn resentencing, we do cause remand for vating beyond circumstances found a rea- ponder not need to the effect of sonable the trial doubt place any limiting trial court’s failure to 19-2515(f)(5) §§ & are unconstitutional- phrases. definition on these ly vague. The need clear standards body the sentencing to follow set forth will deal first with constitutional- We Godfrey Georgia, 19-2515(f)(5), ity of I.C. which sets forth 1764-65, L.Ed.2d 398 “the circumstance that