State v. Pizzuto

Idaho, Plaintiff-Respondent, STATE of PIZZUTO, Jr.,

Gerald Ross

Defendant-Appellant.

Nos. 17534.

Supreme Court of Idaho.

Jan. 1991.

Rehearing Denied June 1991.

jury trial Pizzuto was convicted of two counts of murder in degree, the first two murder, counts felony one count of rob- bery grand and one count of theft in con- nection with the murders of Berta Louise Herndon nephew and her adult Delbert D. appeals Herndon. Pizzuto his convictions asserting sentences error in certain proceedings, actions and orders of the trial court, and also proceedings pursuant from provides I.C. 19-2827 which for auto- matic review of death sentences. Evidence at Pizzuto’s trial disclosed that Jr., Rice, Gerald Ross Pizzuto James William and Lene Odom acquainted became Orland, California. In mid-July, individuals, these four along with the children, young Odoms’ two traveled to Upon Odoms’ vehicle. arriv- ing in they visited some of the Odoms’ Donnelly relatives area and eventually camping went Ruby Meadows area north of McCall. 25, 1985, July On camping while in the Ruby area, Meadows Berta Louise Hern- nephew, don and her Delbert Dean Hern- don were murdered and various items of property their were stolen. Gerald R. Piz- accomplices, Rice, zuto and his James Wil- liam Odom and Lene Odom camping were together in a cabin in this same area. testimony given Based on at trial it was July 25, determined that on William Odom and planning Pizzuto were to rob fishermen, Stephen two Crawford and Jack Roberts, when the by Herndons drove However, pickup their they truck. aban- plan shortly doned that and thereafter Piz- zuto left Odom and Rice and walked off in the same direction that the Herndon truck had been headed. At that time Pizzuto going “hunting” stated that he was and cabin, walked the carrying toward Herndon Chenoweth, Nicholas Orofino and Joan Approximately twenty a .22 caliber rifle. Fisher, Moscow, argued, appellant. for thirty got to minutes later Rice and Odom Jones, Gen., Atty. Lynn Jim and E. up into their truck and drove the road Thomas, Gen., Boise, argued, Sol. attorneys looking for Pizzuto. Rice testified that as respondent. for driving he past and Odom were the Hern- they step don cabin saw Pizzuto from the BOYLE, Justice. doorway holding of the cabin a holstered appeal This is an from pistol. approached convictions and Pizzuto the truck and imposed upon defendant-appel- “give sentences told Rice and Odom to me half an Pizzuto, Following lant Gerald up.” Ross Jr. a hour and then come back Rice and cabin, land, offi- parked enforcement to their the Rice notified law drove back Odom truck, discovery to Hern- ultimately and then walked back lead to the cials which approached Rice and Odom don cabin. As of the bodies. what Rice they heard described

the cabin Jr., Rice, Wil- R. Pizzuto James Gerald like “bashing sounds” that of as hollow Odom, and all liam Lene Odom were “thumping watermelon.” After these a charged murder connection with with ceased, out of had Pizzuto walked sounds James Rice and William victims’ deaths. the .22 caliber rifle and carrying the cabin lesser pled guilty Lene Odom all to and a a and handed Odom “wad hammer charges lesser recommenda- sentence testified that hundred dollar bills.” Odom cooperation with tions return their the Herndons had not be- Pizzuto indicated They against all Pizzu- the state. testified robbed, they being and that were lieved his to at trial. drop pants Mr. his Pizzuto made Herndon According to crawl to the cabin. and autopsy performed An on bodies was Odom, “put he those Pizzuto stated that Koenen, pathologist, Dr. a who testified permanently.” also people sleep to Odom at trial that Delbert Herndon’s wrists had guy and that “Pizzuto told testified piece bound with a shoe lace and a been highwayman he a lady that was and Although Dr. Koenen stated that wire. guy going he to rob them was. two Herndon suffered fatal blows Delbert Jerry he him and that said didn’t believe gun a shot to the head and between said, gun up to face stuck the his fatal, eyes would he was which also a from this look like cannon where ‘[d]oes to unable determine which occurred first. you standing at?”’ Rice testified that are injuries that the Dr. Koenen testified he from took rifle Odom was about Delbert were consistent with a Herndon he to return their cabin when heard hammer blow to head. Dr. Koenen’s scuffling” “deep snort and some sounds body, of Berta Herndon’s he examination Rice went inside from Herndon cabin. noted her hand and wrist were tied on lying the cabin and saw Berta Herndon using a shoe lace behind her back the floor the cabin with blood on the ligature wrapped several times her back of head. Herndon was Delbert right around her thumb. Berta Herndon’s floor, lying shaking his “feet were caused two blows to the back death was rapid on the floor in succession” and he had object, by a consistent of the head blunt blood on face and the side of his head. hammer blows. with shot head Rice Delbert Herndon he him to because “didn’t want suffer.” Following conviction a sentenc- Pizzuto’s Del The bodies of Berta Herndon and pursuant ing hearing was held I.C. graves Herndon were buried in shallow court 19-2515. trial ordered Rice, dug Odom and near the investiga- prepare presentence scene of the murders. After the bodies report at the tion to be used money were buried the taken from the investiga- hearing. presentence This Idaho Herndons was divided three between the refer- report, made in contained tion Shortly packed the men men. thereafter presentence in- Michigan ences to a 1975 belongings and into placed their them vestigation report regarding Pizzuto’s con- Ruby pickup They then Odom’s truck. left for criminal sexual in that state viction McCall, headed Odom Meadows and for report also con- conduct. The trav- driving his truck and Pizzuto and Rice by given Berta Hern- statements tained camped eling They in the Herndon truck. and Del Herndon’s mother. don’s husband evening springs and nearby at a hot fourteen-year a sentenced to Pizzuto was deposited morning next the Herndon parole possibility term no for fixed with area, in a into Cascade truck wooded drove theft, robbery, term grand a fixed life for days rented motel Several a room. the mur- to death for sentenced Rice and returned later boarded bus Herndon. Orland, ders of Del Herndon and Berta Upon arriving Or- California. Following sentencing, Bacon, approached Roger Pizzuto filed his Pizzuto threat- petition post-conviction alleging weapon, relief ened him him with a told that he proceedings leading “highwayman” in the numerous errors was a and that he intended money to his to steal his and his convictions sentences. After car. Pizzuto used conducting hearing post-conviction on the then Bacon’s shoelaces to tie his head, interlocking hands his petition, the district court found behind Bacon’s Pizzuto’s arguments fingers tieing fingers to be without merit and two index dis- petition. together. gagged He then missed the Bacon and tied him to a tree. The trial court concluded appeals Pizzuto now his convictions and that the circumstances of the inci- Bacon post-conviction the denial of his motion for closely paralleled dent the circumstances of alleging relief various errors committed the Herndon murders because Pizzuto had the trial court in violation of the United also advised one of the victims that he was States and Idaho Constitutions. “highwayman” and had tied the victims’ hands with shoelaces in a similar manner STANDARD ON REVIEW way Bacon’s hands had been The tied. The defendant has the burden of relating evidence to the Bacon incident was demonstrating error in the trial court. motive, admitted as relevant to show intent Lankford, State plan and common closely scheme or related Wallace, State v. to the Herndon murders. The trial court pre 563 P.2d 42 Error will not be ruled that highly proba- this evidence was appeal affirmatively sumed on but must be tive negated any and therefore claim of appellant. shown Lank prejudice may result from its admis- id.; Wallace, ford, It State v. id. is with sion into Pizzuto evidence. contends on principles these standards and mind that appeal only margin- that this evidence was we review this case. ally substantially relevant and was more probative. prejudicial than A. “any if it Evidence is relevant has TRIAL tendency any to make the existence of fact consequence that is of to the determination I. Evidence Other Crimes or Bad probable proba action more or less Acts. it would without the evidence.” ble than be Pizzuto asserts that he was denied a 401; City Burley, I.R.E. Harkness v. fair trial because the trial court allowed 715 P.2d 1283 uncharged evidence of misconduct to be Hocker, 115 Idaho presented jury. argues to the (Ct.App.1989). may Relevant evidence objectionable evidence was admitted probative if excluded its value is substan prove he bad character and to show that outweighed by danger of tially unfair conformity acted in with that character. 403; Roach, 109 prejudice. I.R.E. The testimony trial court admitted (Ct.App.1985). Stephen Pizzuto had intended to rob Craw- 404(b) Generally, I.R.E. forbids the intro ford, fishing who was near the Herndon crimes, wrongs or acts if duction of other cabin, immediately prior to the time doing purpose prove so is to Herndon vehicle arrived at the scene. person in order to show character of trial court ruled that the evidence of conformity that he acted in therewith. motive, incident was admissible to show Needs, 99 Idaho v. State intent, plan to closely scheme or “so related However, (1979). may admis such acts proof the Herndon’s that of their involve- motive, prove opportuni sible if relevant to Crawford, ment with Steven to dem- tends intent, a common scheme ty, preparation, robbery onstrate the of the Herndons.” plan embracing or the commission of two other or more crimes so related to each The trial court also evidence admitted tends to the subsequent proof that of one establish that to the Herndon murders

751 other, knowledge, identity, absence State late in disclosure or of was not its because 404(b); previously pro- Bacon’s statement had been I.R.E. mistake accident. State discovery re- Wrenn, vided in the State’s first P.2d 1231 99 Idaho 584 v. sponse. agree trial that Walker, We with the court (1978); Idaho 707 109 adequate prior Pizzuto trial had notice to (Ct.App.1985). Under certain cir- P.2d 467 potential Bacon would be a witness. prior may of crimes cumstances evidence if Even the absence of Bacon’s name from prove identi- offered to be admissible when disclosure, delayed the witness list was late perpetrator of a ty as crime of defendant prosecution disclosure the is not neces- Hatton, charged. v. with which he is State sarily Smoot, 99 reversible error. State (1974). If P.2d 95 Idaho the Idaho 590 P.2d The test judge the evidence relevant to trial finds error is whether lateness of reversible issues, must, he similar or she exer- these prejudiced prepa- disclosure so defendant’s discretion, weigh proba- the cising sound presentation ration or of his defense that against any value of such evidence tive prevented receiving he was from consti- his prejudice may it to the unfair cause defen- tutionally guaranteed fair trial. I.C.R. Stuart, dant. State v. 6; 16(d); Amend. U.S.C.A. Const. State (1986); Abel, State Olsen, v. Sharp, Pizzuto had knowl- the instant case 616 P.2d through edge of Bacon’s statement dis- Buzzard, the covery process well in advance trial. of (Ct.App.1986). Furthermore, granted the trial court a con- case, uncharged In the the instant mis- expert tinuance to allow the defendant’s was conduct evidence not remote time evidentiary witness examine to materials happened because all of the incidents with- testimony. with Pizzuto connected Bacon’s or days hours of the murders of the unprepared has he failed to show that was Herndons. The encounter with Crawford respond testimony. to to or rebut Bacon’s immediately prior going to to Pizzuto carefully reviewing After we record probative Herndon cabin relevant is to find that no reversible error resulted from show intent to Pizzuto’s rob murder of Bacon’s name on the absence State’s evidence, along the Herndons. This with witnesses, particularly list where Bacon, robbery proba- evidence name and statement was included witness’s motive, intent, pattern, plan, tive to show a response, discovery in the State’s first and common or plan scheme to rob and granted further defendant was because unsuspecting persons harm camp- in the to examination of evi- continuance allow Likewise, ground area. descrip- Bacon’s dentiary connected with materials Bacon’s robbery tion of Pizzuto’s very of him was testimony. support The does not record robbery similar to Pizzuto’s of the Hern- late argument that the disclosure Pizzuto’s provided by dons. Bacon evidence was prejudiced defense to the extent he was his probative identity Pizzuto’s and we hold prevented receiving his from constitutional- that the trial court did not abuse its discre- guaranteed fair trial. ly by admitting tion evidence of the similar uncharged conduct. Jury II. Panel. Late Disclosure of also asserts Bacon’s as a Pizzuto asserts that result of testimony should not have admitted been panel, the jury late disclosure of he did not because his name was not included to adequate opportunity have an investi By list whole, State’s of witnesses. State’s gate panel as a nor was he able formally po failure to as a qualifications disclose Bacon adequately investigate trial, days prior juror tential witness until six prior jury of each individual selec deprived he argues Pizzuto contends that late tion. Pizzuto disclosure investigate opportunity adequately right panel denied him to a fair process guaran as background Bacon’s his testimo trial and to due of law rebut The teed the fifth and fourteenth amend- ny. trial court concluded that Closing mente of the United States Constitution III. Argument. Prosecution’s guarantees protections similar and un- de Pizzuto asserts that he was Specifically, der the Constitution. improper nied a fair trial result of an as a Pizzuto asserts that the trial court should closing argument prosecuting by the attor granted have a continuance to allow him ney. argues throughout closing He that acquire argument time to prosecutor injected per additional information con- opinions sonal as to the truth or beliefs cerning potential jurors permit to guilt falsity testimony of certain and the intelligent exercise of and informed acknowledges the defendant. Pizzuto that preemptory challenges challenges for object prosecutor’s noat time did he to the denying cause. In the motion for continu- being prejudicial statements did he as nor trial court ruled: ance the request jury the trial court to direct the to permitting I am the individual voir dire in disregard the statements. It es is well questions any you this matter and want principle, excep tablished with the limited you think on the answered that should be error,” tion of “fundamental that error at list, you I’ll information let ask those properly objected trial must be to in order questions, certainly within reason to- Carter, to merit review. State v. 103 Ida [jury panel day____ We had this list] 917, (1981); ho 655 P.2d 434 v. Le State they delivered to us as soon as selected 387, (1981); Page, 102 Idaho 630 P.2d 674 jury got you obviously it 108, and we to Garcia, 100 Idaho State (1979); White, got as it. I understand that 97 Idaho as soon we State v. denied, cert. perhaps like time to you would more (1976); 50 L.Ed.2d State I investigate people these but intend to Wright, 97 Idaho 542 P.2d 63 permit relatively voir dire exam- liberal ination and I feel on fact based Garcia, State v.

you’ll jury be able to select a that’s fair im- P.2d 146 this Court held that proper closing argument by prosecut- impartial without the need for con- ing attorney constituted “fundamental er- tinuing time. this matter at this ap- ror” and was therefore reviewable argument support of his that late dis- notwithstanding objec- peal the fact that no him, jury panel prejudiced of the closure had been made defense counsel tion Pizzuto cites 18 U.S.C. 3432 and Hamer Osborn, during trial. See State v. States, (9th F.2d 274 Cir. v. United (1981)(the gravity 1958), eases, pri- require in certain infrequency death and the of a sentence of offenses, marily capital that a treason and imposed outweighs any with which it is defendant must be furnished with a list of might proposed justify rationale be jurors Pizzuto prospective prior to trial. objected to consider error not refusal days least seven is neces- asserts that at below); White, 97 Idaho adequately jury panel to sary to review the (1976)(fundamental error will P.2d 1344 challenges any to the determine whether appeal adequate even if no reviewed on trial). panel appropriate. disagree. interposed We objection are cited are federal statute and authorities rule, general As a counsel brought in court. inapplicable to cases state traditionally afforded both sides have been Further, authority cited to show there is no arguments in their considerable latitude such advance disclosure is tantamount fully, right to discuss and have right. judge The trial to a constitutional standpoints, the respective their evi from gave jurors the list of as soon as it and deductions and the inferences dence available, and thereafter allowed was made Estes, 111 Ida arising therefrom. dire. parties engage in liberal voir P.2d 128 State v. Sis ho right Pizzuto’s to a fair trial trunk, We hold that 210, 142 Gilbert, prejudiced he as a

was not violated nor was function of the Although it is the jury panel. delivery of late result overwhelming and evidence of discrepancies and conclusive point to out counsel trial guilt. testimony, jury to defendant’s it is for the in conflicts re credibility of and witnesses determine case, Pizzuto claims that In the instant v. any generally conflicts. See State solve attorney’s clos- prosecuting throughout (1977); Erwin, 572 P.2d opin- personal his and ing argument beliefs Brown, 94 Idaho 487 P.2d v. State falsity of certain to the truth or ions as Both on grounds. overruled other testimony guilt of as to the witnesses’ and and the United States this Court injected. were Pizzuto cites the defendant injection of long condemned the have Court following portion prosecutor’s of the by a closing argument personal opinion closing argument being particularly as attorney case. prosecuting in a criminal prejudicial: 1, 105 Young, States United accept- Angie And that Pizzuto had been (1985); 84 L.Ed.2d money from old Mr. ing over the months Garcia, so,” Herndon, to do I Del “and continues Rosencrantz, distinctly. very those remember words (Ct.App.1986). P.2d 93 gentlemen, just and wasn’t Ladies Garcia, 108, 594 In State you I saw that it the case and think prosecutor made P.2d 146 Hern- you I think Mr. Del wasn’t. saw argu- closing following comments in his don, generous thoughtful very as a ment: caring man ... Prosecutor: you, gentlemen, I submit to ladies and Q. after Mr. has been Now Garcia in this testimony of case Toni caught apparent in this contra- rather testimony simply not credible. was diction, lie, he the beer didn’t have Pizzuto, was, very Angie as it was sad [referring testimony that the pitcher, to credible, And I very believable. holding pitch- police found Garcia a beer is not. I prostitute, care if she or don’t money (Emphasis add- er with inside.] is, it incredi- think she and I found don’t ed.) try try to this that the defense would ble Prosecutor: on by innuendo rather than case hand, facts. Q. If on the other one you

possible appear conclusions could Certainly, gentlemen, ladies were it reasonable to be to be and the other Herndon not for the fact that Del Dean unreasonable, duty your it making would be snort- already unconscious to the deduction and irregu- adhere reasonable of an ing snoring sounds sounds reject the nature, cabin, unreasonable —ladies helpless, in the would lar I gentlemen, don’t believe Mr. Garcia’s gone in there and shot Rice have Jim coincidences, many so, story, many so, too too I don’t think him? I don’t think (Em- slips and slides around the gentlemen. ladies and facts. original.) phasis any you going to have think are I don’t charges the rest of these problem with In reference similar to comments clear, either, I think the case is I because above, previ quoted to those has know you it. think prose ously held that it was error for the acquit any or or all of opin can convict express personal or You cutor to belief words, I’m charges. not in a other credibility as to the of a witness ion words, you do, However, suggesting but other prosecution.1 murder Garcia guilty find not light you could the defendant was deemed harmless the error prosecutor contemplated express opin should exercise prosecuting attorney may an 1. A argument falsity interjecting personal as guilt the truth or avoid belief ion caution to testimony when opinion of the defendant explicitly that the is and should state opinion upon is based evidence. Peo such solely on from evidence based inferences McGill, ple v. 190 Colo. (Footnote Gar- presented at trial. cited from McKeehan, cia.) However, comment when such a 754 one, 168, 2464, you I could wright,

on count don’t know how 477 U.S. 106 S.Ct. conceivably guilty (1986); find the defendant not L.Ed.2d 144 De Donnelly v. Chris one, three, guilty but on count 1868, on count toforo, 416 U.S. example. L.Ed.2d 431 v. Missa see also State more, (Ct. off, Macho, Showing Mr. here is the Pizzuto, (fundamental Gerry Gerry App.1988) or prize. requiring Gilbert- error re then, son, holding as he was known Del only versal of a conviction will found if be showing off. gun, Dean Herndon’s own prosecuting attorney comments of the man, me, big I’m a I killed “Look egregious inflammatory were so and somebody.” disgusting, absolutely Its any prejudice arising from them could not disgusting. ruling have been remedied from the her, brags to her—its informing And he tells he trial court that the com comprehension, I under- beyond my don’t disregarded.) ments should be I.C.R. brags kill- error, defect, stand folks—he to her about provides irregu “[a]ny Idaho, ing and he a man and a woman larity or variance which does not affect it, says, had the man embellishes he “we rights disregarded.” shall substantial be know, maybe I up tied to a tree.” don’t rule, applying the harmless error got up Roger Bacon. he mixed with Court has held that where the admissible it, upon “... I didn’t do I came this cabin provides, beyond evidence a reasonable killing Rice and were those and Odom doubt, “overwhelming and conclusive” out, I I ran into the people and freaked proof guilt, defendant’s admission on, seizure.” Come woods and had a tainted evidence will be held to be harm that doesn’t make sense. California, 386 Chapman less. something just He also told them 87 S.Ct. insane, me also told them that

strikes as LePage, laughing, denied, Berta Herndon was she 454 U.S. cert.

thought funny, it was I think that L.Ed.2d 595 Gerry Pizzu- embellishment on another carefully the trial We have reviewed part, to’s I think Berta Herndon don’t presented record and find that the evidence laughing. was clearly that the defen at trial demonstrates said, I every I didn’t believe word he responsible for the Herndon mur dant was testimony to some think he shaded his Garcia, we ders. As this Court held Mr. Hern- degree. I don’t know whether prosecutor’s statements harmless deem the cabin, if lying of the don was on the floor overwhelming light and conclu error cabin his head due to the nature of that guilt in the mur sive evidence of Pizzuto’s angle. tipped forward at 45 was Hern der of Berta Herndon Delbert Rice, knew where Ger- I think that Odom don. up the ry going when he took off was hunting, go get some meat. go road to into Photographs Admission IV. true, but I think I don’t know if that’s Evidence at Trial. they you is of what told that the essence true, you (Emphasis it. I think know objection, Pizzuto’s the trial Over added.) photographs relat court admitted various charged crimes. The defendant ing to the Garcia, we hold Based on our decision particularly court asserts that the trial quoted portions of the that the underlined admitting four of abused its discretion prosecutor improper argument of the were they high photographs because were these opinion. personal belief statements unnecessary to illustrate ly prejudicial and However, Garcia, as in the relevant testimony pathologist who con prosecutor’s critical issue is whether the the victims. Pizzu autopsies ducted the on trial unfair- comments so infected the with photo asserts that admission resulting conviction ness as to make designed to inflame graphs primarily process. denial of due Darden v. Wain- discretion of is entitled evidence is within the sound and therefore claims he jury, the trial court and will not disturbed trial. to a new appeal an of discretion. absent abuse showed a photographs at issue The four Windsor, placed shoestring that had been wire denied, cert. victims, the of one of the around the wrists v. 463, (1986); State 93 L.Ed.2d 408 S.Ct. upper body of Berta face and battered Abel, (1983). 865, 104 664 P.2d 772 Idaho of Hern- and the back Delbert Herndon 380, Scroggins, State v. 110 Idaho 716 showing gunshot a wound. don’s head (1985), upheld P.2d the admission 1152 we allegedly inflammatory Where photographs depicted bruises and of which and material as to an evidence is relevant body. Although abrasions on the victim’s fact, the trial court must determine issue of pa- photographs by the were not used the possible prejudice might that the whether describing in thologist to assist him by admission of the inure to the defendant observations, the trial court we held outweighed by probative its value. is evidence admitting discretion in the did not abuse its Enno, 403; State v. 119 Idaho I. R.E. photographs. Windsor, (1991); State v. 392, P.2d 610 807 Beam, 616, State v. 109 Idaho 710 410, cert. 110 Idaho 716 P.2d 1182 held: P.2d 526 this Court denied, 964, 463, 107 93 479 U.S. S.Ct. discretion to The trial court has the (1986); Scroggins, State v. L.Ed.2d 408 110 photographs of the admit into evidence v. 380, (1985); State P.2d 1152 Idaho 716 aid to the victim in a homicide case as an Beam, 616, (1985); 109 Idaho 710 P.2d 526 understanding arriving at a jury fair Wilson, 194, v. State 93 Idaho 457 P.2d 433 corpus evidence, proof of the of the as Beason, (1969); 267, State v. 95 Idaho 506 delecti, the con- injury, the extent of the Martinez, (1973); State v. P.2d 1340 92 bearing body, of the and for their dition denied, 183, 691, cert. Idaho 439 P.2d 393 question degree of the and atro- on the 945, 317, 21 U.S. 89 S.Ct. L.Ed.2d 283 ciousness of the crime. The fact that the (1968). The determination of whether depict body the actual photographs challenged on the not to admit evidence and the wounds inflicted victim ground prejudicial pro than that it is more may tend to excite the emotions her and clearly the trial court’s bative is within excluding for jury of the is not a basis Scroggins, v. State discretion. 110 Idaho Caudill, 222, v. Idaho State them. 109 Wilson, 380, State v. (1985); 716 P.2d 1152 Bean, v. (1985); State 456 109 706 P.2d 194, (1969). “The 93 Idaho (1985). 231, P.2d 1342 Idaho trial court has the discretion to admit into a complain A cannot defendant photographs evidence the victim jury’s emotions were excited evidence jury homicide case as an aid to accurately depicts jury for the arriving understanding at a fair of the evi method, committed and the a crime was dence, delecti, proof corpus as of the atrociousness which the fashion and body, injury, extent of of the condition crime was committed. bearing question and for their on the 620-21, Id. at 109 Idaho 710 P.2d at 530-31. degree crime.” and atrociousness of the Beam, 616, 620, photographs State v. 710 We have reviewed Martinez, (1985); question and hold that it was not an abuse State denied, to admit the of discretion for trial court cert. photographs rele- photographs. The were arriving jury to the de vant as an aide photographs The fact that the evidence, understanding the ex- pict body actual and the fair of the victim injuries, condition of may tent of the victims’ wounds inflicted on the victim and bodies, question bearing on the tend to excite the emotions of the of the crimes. degree and atrociousness excluding not a for them. basis Beam, admission (1985). Accordingly, we hold that their inflammatory not error. allegedly to admit Whether Thompson, B. McCormick, P.2d 970 ISSUES SENTENCING (1979). The protects jeopardy against clause double Jeopardy. Y. Double prosecution second for the same offense Pizzuto was tried on a six-count acquittal, against protects after a second alleged counts of information which two prosecution con- for the same offense after murder, degree premeditated first two viction, protects pun- against multiple murder, degree rob felony counts first ishments for same offense. Brown theft. Pizzuto bery, grand asserts Ohio, robbery for that his conviction the crime L.Ed.2d 187 murder, felony also where basis charge 293, the crime of felony Anderson, the murder was v. 82 352 State Idaho in in robbery, jeopardy results double viola (1960), this Court held an offense of of the tion the fifth amendment United alleged if it is in the is an included offense 1, 13 and art. of the States Constitution the information means or element of § as a Idaho He further asserts higher Constitution. This defi- commission of a offense. robbery may also be that the conviction nition of lesser included offenses has been of considered a lesser included offense the “plead- “indictment” or referred as the degree premeditated first murder convic theory ing” expands the traditional argument tions. The latter advanced “statutory” theory3 of a included lesser premised Pizzuto on the fact that the determining is of purpose offense for the jury given an instruction that one of jeopardy. was v. whether there is double degree pre 430, elements of first the material Thompson, 101 Idaho is the victim be (1980). meditated murder that aforethought killed and that with malice case, informa In the instant the criminal shown from the fact that an may malice be charged with two counts of tion Pizzuto during killing place took the unlawful murder, degree premeditated in viola first robbery. perpetration of the crime of 18-4003(a), two tion of I.C. 18-4001 §§ Thus, Pizzuto, robbery according to the degree felony in of first murder counts supplied necessary also a element 18-4003(d), violation of I.C. 18-4001 §§ murder convic degree premeditated

first in of I.C. robbery of violation one count such, Pizzuto tion. asserts his As grand of in count theft 18-6501 and one § robbery be conviction should be dismissed 18-2407(1)(b)(1). The of violation I.C. § put right not to be cause constitutional his all four jury guilty returned verdicts on the jeopardy twice for same offense has degree, one charges of in the first murder convic multiple and that the been violated grand count of robbery of and one count 18-301.2 tions violate I.C. § Pizzuto to The trial court sentenced theft. fourteen-year possibil term with no fixed prohibition against double a theft, fixed life parole grand a ity of for jeopardy has held to mean a been two robbery, for sentences of both term may defendant not be convicted a degree death, in the first one for murder offense. greater and lesser included killing of Del Herndon the unlawful Ohio, for Brown v. degree the for first 2221, 2226, and one murder L.Ed.2d 196 Si 53 killing of Berta Herndon. unlawful State, P.2d 192 the v. 731 vak Thompson, explained ways— in State punishable 3. As Acts in different 2. 18-301. "statutory under jeopardy. act is P.2d Double or omission 614 970 —An ways by punishable different made in different lesser theory”, is not considered a one offense punished provisions may under necessarily of this code be it is so unless included another provisions, can in no case it either of such but statutory the crime. definition of under one; acquittal punished an under more than States, (10th Cir. 296 F.2d 80 Larson v. United under either one or conviction and sentence State, (Me.1973). 1961); A.2d Little v. omission prosecution a for the same act or bars any under other. State, 197, 211, 731 P.2d argues robbery like Sivak McCormick, State, charge in Sivak (1979). Applying conviction, robbery test, held under foregoing this Court felony for the the basis mur- which formed Sivak, robbery particular facts in 18-4003(d), charge der under I.C. should § felony lesser offense of included degree merge charge the first murder with required all the elements murder because included being as a lesser offense. Pizzuto robbery were also to sustain conviction of argues robbery that the conviction should needed to sustain a within elements also a lesser included be deemed offense Therefore, felony murder. conviction premeditated degree first con- murder Sivak, merged as a robbery conviction viction Instruction No. 19 because felony mur- lesser included offense of the may stated that malice be shown from State, 112 Idaho der conviction. Sivak v. killing place unlawful fact that an took 197, 211, How- P.2d attempted during perpetration perpe- Sivak, ever, as this stated in robbery. tration of the crime charged issue of whether a offense degrees defines Idaho Code 18-4003 charged lesser included of another offense provides pertinent part: murder and analyzed offense is reference to the Degrees (a) All 18-4003. of Murder. — facts of each case. Id. at perpetrated any murder which is ... 206. wilful, premeditat- and kind of deliberate Sivak, robbery In the conviction the killing degree. ed is murder of first consti held to violate the defendant’s was rights jeopardy prohibiting tutional double (d) Any perpe- murder committed the robbery had not been commit because the of, attempt perpetrate, tration or ar- ted, only the State would have received a son, robbery, burglary, kidnapping rape, against degree second murder conviction degree. is murder of the mayhem first Sivak, lighter punish and much with it a State, In Sivak However, robbery, ment. because charged P.2d the defendant was de sought the and received a first robbery felony and of both and convicted gree against murder Sivak conviction murder, being murder in the the committed Sivak, carrying penalty. a more severe robbery. appeal, course the On Sivak in the course of the murder occurred jeopardy by raised the issue of double ar- there was robbery, it was held no however guing that his conviction on the counts of Hence, murder. specific intent commit felony robbery both murder and were not robbery, Sivak could have without and violation of I.C. also violated §18-301 degree murder. been convicted of first right put not to be constitutional twice however, case, only not was the the instant in jeopardy for the same offense. In Si- of a rob murder in the course committed vak, applied test this Court stated in substantial evidence bery, but there was McCormick, 594 showing specific intent to cause both to determine if Sivak’s robbery Hence, if the had not deaths. even rights had been constitutional violated. occurred, is substantial evidence there This is as follows: test showing that Herndon murders were An offense will be deemed be a lesser willful, Thus, premeditated. deliberate and another, greater offense of of- included means robbery provide not did fense, the elements required convicting if all first de premeditated Pizzuto robbery conviction of the includ- gree sustain a lesser murder therefore the is ed included ele- offense are within the a lesser offense of that crime. not included However, particular to sustain conviction under the facts of this ments needed course, case, a lesser included of greater robbery offense. Of is proof and must be greater may require felony of ad- fense of murder offense As we said in merged in order to with that conviction. ditional elements sustain Sivak State: conviction. however,

Idaho, adopted seems to have 18-4002 defines both ex- Code § press implied malice and states: pleading indictment or theo- the broader 433-434, Express implied 614 P.2d at 973-74. ry. Id. at 18-4002. mal- I.C. may express ice.—Such malice or im- theory This holds “that an offense is an plied. express It is mani- when there is alleged if it is in the included offense unlawfully fested a deliberate intention means or element of the information as a away to take the life of a crea- fellow higher commission of offense.” implied It ture. when no considerable Anderson, 293, 301, provocation appears, or when the circum- words, In other attending killing stances show an analyzed issue is in reference to the malignant abandoned heart. case, facts of each case. In this Sivak concluded, The charged and our review of robbery with which was confirms, the record the evidence charge felony also the basis for the specific showed had intent to mur- Applying murder. the test set forth in der the Herndons. As Pizzuto walked to- McCormick, it is clear that all the ele- cabin, hand, ward the Herndon rifle in he required ments to sustain a conviction of commented to his associates that he was robbery were also within the elements going “hunting.” prior From conversa- felony needed to sustain a conviction of Pizzuto, interpret- tions with his associates Thus, circum- murder. under these “hunting” ed his comment to mean that he stances, of- robbery is a lesser included intended to rob and murder the Herndons. and, therefore, felony-murder fense of Furthermore, the deliberate and wilful act robbery merges a lesser conviction as bludgeoning the Herndons with a ham- felony included offense of the murder supports premeditat- mer the convictions of conviction. robbery provide ed did not murder. go unsup- Our conclusion does not convicting Pizzuto of the sole means of ported. Supreme The United States Rather, degree premeditated murder. first Court, States, in Whalen United bludgeonings were the basis for the 684, 100 S.Ct. U.S. Therefore, we hold murder convictions. rape found that a conviction jeopardy under the cir- there is no double merged felony with a murder conviction presented in the instant case. cumstances killing in conviction for because “[a] the conviction Pizzuto also claims rape had course of cannot be without robbery felony murder vio- for both proving all of the elements of the offense 18-301, provides if a which lates I.C. § Id., rape.” at 100 S.Ct. at liability under two crimi- single act creates L.Ed.2d at 725. only pun- the defendant can nal statutes 731 P.2d at 206. Horn, Idaho at Accord- one statute. ished under circumstances, ingly, under these factual 192, 610 P.2d 551 Inas- robbery is a lesser included offense felo- merged the sentence im- much as we have and, therefore, ny felony for mur- robbery murder sentence for the with posed der, necessary that we address robbery merges as a lesser included of- it is not that conviction for both rob- Pizzuto’s claim felony fense of murder and must be vacat- provi- felony murder violates the bery and ed. 18-301. sions of I.C. § Pizzuto also rob contends that the that he has Pizzuto also asserts bery should a lesser conviction be deemed for the murder of sentenced twice been first premeditated included offense of the for the murder of Berta Herndon and twice degree further murder conviction for the of I.C. 18-301. Del Herndon violation § jury reason that Instruction No. 19 stated disagree. We may the fact that malice be shown from murdering place during both killing that an unlawful took Pizzuto was convicted jury The Herndon and Mr. Herndon. perpetration attempted perpetration Mrs. murder was in each case the found that robbery. of the crime of commit- police concerning the crime degree. The Paz to the first murder of Paz, held Oregon. we finding that the mur- ted by reached this result Oregon pre- that the from the a statements the victims was both each of der of hearsay report sentence were admissible premeditated murder. and a felony murder certified as offi- because the records were there were two mean that This does not Furthermore, victim, Oregon cial state records. each nor does murders of different report Oregon presentence we held that the sentenced to Pizzuto was mean that it trial court appropriate provide was killing each victim. death twice perspective person a full with findings considering the death trial court’s impose it sentence. whom was Pizzuto was sen- it clear that penalty make killing each only once for tenced to death case, testimony In the instant Berro’s Therefore, was no there of the victims. concerning Michigan presentence the 1975 violation of I.C. 18-301. § pre- report is similar in its content to the report admitted in Paz. How- sentence Michigan a 1975 VI. Consideration of ever, challenges admissibility Pizzuto not Report. Presentencing hearsay, he it but because because 19-2515(d), required by As I.C. privilege fifth amendment claims that his presentence inves court ordered a the trial against self-incrimination was violated hearing. to the tigation prior statements were made. Pizzu- the time the investigation, a presentence part As that at the time he made to asserts included report prepared was written presentence in- Michigan to the statements prior relating to Pizzuto’s con information he not advised that his vestigator, Michigan. in the state of Pizzuto viction against him statements could be used trial erred in admit asserts that the court proceedings, criminal therefore future ting testimony concerning presentence vio- rights against self-incrimination were investigation report prepared in 1975 contention, Pizzu- support lated. In of this Berro, employee an the Michi Michael Smith, primarily on to relies Estelle Berro’s gan Department of Corrections. 1866, 68 L.Ed.2d 359 pertained testimony the instant case in which the United States statements made the course psychiat- during pretrial Court held that purpose him for of an interview with competency to ric examination to determine Michigan preparing presentence the 1975 trial, charged murder person stand with investigation report for Pizzuto’s conviction right entitled to that he has a be advised conduct. Pizzuto as of criminal sexual anything says he to remain silent and by serts at the time he was interviewed used may that medical evaluation purpose preparing the Berro for the against following him conviction at the sen- Michigan presentence report that he tencing hearing. We decline to extend given rights4 and was not his Miranda facts of principle to the Estelle v. Smith accordingly it was error to allow this evi easily the instant case are distin- which dence. guishable. Paz, Cardwell,

In v. 118 Idaho State v. Pizzuto also relies on Jones (1990), Cir.1982), defendant asserted as error (9th in which the 686 F.2d 754 report at presentence Appeals the fact that the used held that Ninth Circuit Court sentencing hearing contained in- of the fifth supports application his Idaho Estelle sentencing proce- manslaughter con- prior privilege formation from a amendment to Cardwell, the defen- Oregon. contained viction in The data dures. Jones degree burglary report of first presentence the Idaho contained dant was convicted conviction, before sen- by rape. After but general description of statements made must, Arizona, any person questioning, be warned before Miranda v. 4. silent, any right to remain held that that he has which may be used as evi- fully he does make are devised to in- statement unless effective means him, right against he has to right dence and that person silence and form accused of the to it, appointed. attorney, presence retained or opportunity to assure continuous to exercise fencing, probation officer a state inter- statements to Berro which incriminated any viewed the defendant on several occasions him in other crime. We do not find during one of these sessions defen- rights that Pizzuto’s fifth amendment were dant confessed to the commission of nu- by violated the admission of Berro’s testi- sentencing, crimes. At merous other mony by considering or trial court judge improperly relied on the confes- trial presentence investigation re- 1986 Idaho imposing sions in sentence. port in this instant case which contains Michigan report. references to the 1975 challenges In the instant case testimony in he Berro’s recited Piz- we carefully reviewing After the record of the events which were the zuto’s version hold trial court could consider Michigan basis of his conviction for crimi- testimony the contents of Berro as well as objects conduct. Pizzuto also nal sexual presentence investigation re- the 1986 following testimony: port. The record demonstrates that coun- Yes, interviewing when I was him in the ample opportunity sel for Pizzuto had County jail you and I think will find it in report explain examine the and to and re- presentence investigation prepared, I but its contents. We therefore hold that very he made it clear that he—he boast- testimony presentence Berro’s and the 1986 being ed about shirt tail relation investigation report at Piz- were admissible Mafia or his father was the Mafia and sentencing hearing. zuto’s things like that. he had connections and keeping Impact he a list VII. in Pre-

He stated that Victim Statement everybody wrong sentencing Report. him who had done going got prison when he out of he was rights Pizzuto asserts that his to come out and take care of them. guaranteed by the United States Constitu prior A criminal the Idaho were violat defendant’s activi tion and Constitution considering having ty may judge be considered the trial ed the trial court Couch, imposing impact sentence. 103 access to victim statements when State imposing penalty. 650 P.2d 638 Further the death At the time of more, spe has held that the sentenc the defense did not make Court objection to either the contents of the ing court is free to consider the results of a cific investigation presentence investigation report if information or to the prehearing testimony sentencing. report in the is reliable. State v. Os contained (1983); born, Creech, Yoelin, the issue of 498 P.2d this Court was faced with

see object failure to reliability, the de whether the defendant’s To ensure preliminary hearing record opportunity the use of the must be afforded the fendant evidence, sentencing hearing precluded appel at the present to examine favorable This held in presentence in the late review.5 Osborn all materials contained limits on general that the rule which review report, explain and rebut adverse and to 19-2515, 19-2516; objected to at the trial appeal if error is not State evidence. I.C. §§ 463, controlling since I.C. 19-2827 Creech, court is not pro that the Court examine the denied, mandates cert. 465 U.S. Johnson, imposing pen in the death cedure followed appeal an alty regardless of whether Unlike 101 Idaho 618 P.2d 759 Cardwell, presented circumstances 686 taken. Under the defendant Jones v. free to review the issue of the (9th Cir.1982), no here we are F.2d Pizzuto made White, review); Lankford, merit 5. State v. denied, (1987) (with exceptions trial error at limited cert. properly objected preserved (1976) (the exception to and must 50 L.Ed.2d review); Garcia, merit general review "fun is that this Court will rule (1979) (with exception the limited appeal no ade error” on even when damental error," involving error at of cases "fundamental trial). interposed quate objection has been objected properly to in order to trial must be impact nothing maybe use of victim statements at time of help my can wife but we sentencing regardless of whether or not an protect happening can others from it objection was made at the trial court level. them.” presentence investigation

The 1986 Idaho report at Pizzuto’s submitted that it has victim’s families indicate from the immediate contained comments cost them “thousands and thousands of report the Herndons. The families of dollars” to return the victim’s bodies states: home, bury their loved ones and attend The mother of Del Herndon was contact- proceedings. They court various states, “I ed in Nebraska. She can’t tell property would like the victim’s returned you kill them because I’m a God fear- possible. as soon as they ing woman. But should never be sentencing hearing, At the the State also let loose. Those mean men have hurt produced testimony from the husband family our so much.” Her sons have Berta Herndon and the uncle of Del Hern- Grangeville proceedings. come to for the testimony don. His was as follows: not able to as she leg She was had a Q. Okay, I you want to tell the court amputated. “I couldn’t even attend Herndon, your Mr. how the murder of I hospi-

Del’s burial because was nephew your your wife has affected family tal.” The of Del Herndon did not you life? If put can it words? have the “thousands of dollars it cost to my body shipped have sons’s home.” Well, thing, A. to sum it all into one it brother, Herndon, states, “Today His Joe destroyed it. I It took the best wife years Del would have been 36 old and had, any every believe man we weren’t right laying ground now he is in the wife, only good man and we were they shipped wood and steel box him friends, important and that’s more than in, way its not the we it wanted but anything in my else book. She was a just way happened. that’s it’s He is woman, good big hearted and in all our laying in an grave, unmarked he doesn’t years of married life we never had one even have a headstone.” Del Herndon fight and ignored that wasn’t because we long had been a distance truck driver other, just way each that’s it was. who loved Idaho. He money saved his Q. Del; your nephew, What about what pan and studied gold bought how to guy kind of he? mining himself a claim. The last time his Well, driver, long-haul A. he as a truck mother saw him was approximately one coast, he would drive from coast to Cana- month before he was killed. da to Mexico. Herndon, husband, Del Berta Herndon’s Q. Okay, stopped you he from to see states, “My murdered, you wife was you time to time and visited for extended you? know that don’t they When mur- periods, didn’t he? they my away dered Berta took life too. If my way I had get Yes, Pizzuto would death A. one time he lived us for a with by firing squad, get work, Rice would life year He and a half. was out of he consecutively sentences and Odom would injured, tipped his truck had been over get two consecutive life And sentences. him took with and we care of him that agree I plea bargaining don’t with the way. right. Odom’s. That’s not That wife Q. you he a just being Was comfort to tough. of Odom’s is I her and watched just being relative and a friend? tougher she is than he is. let her Don’t A. Yes. loose!” He indicates he has not received Q. you? You miss them both don’t belongings. every- wife’s “I know A. Yes I do. thing overnight she had in that case.” Q. jewelry you you

He then went on to her Thank Mr. Herndon. Do describe anything you say that has not been found. He have else believes would like to rings. Lene Odom has the “I realize to the court?

762 hope happens position I it never statements

A. Yes. reaffirm our that such anyone may given orally sentencing else. hear not be at ings presentence investiga or included 496, Maryland, In v. 482 U.S. 107 Booth reports by the trial tion or considered (1987), 2529, 96 L.Ed.2d 440 the Unit- 5.Ct. Sivak, 320, 806 court. State v. 119 Idaho Supreme the ed States Court held that (1990); Paz, 118 Idaho P.2d 413 State v. eighth prohibited capital amendment sen- 542, (1990); 798 P.2d 1 v. Charbo considering im- tencing jury from victim neau, 129, 116 pact such statements statements because Paz, we stated that consideration sentencing not relevant to the issues were sentencing at constitutes such statements of the defendant’s character and the nature error, impact statements and victim Specifically, Supreme of the offence. the presentence in a should not be included Court held: Hence, investigation report. the inclusion provided jury in this case The YIS pre impact statements in the victim First, it types with two of information. testimony in report oral sentence personal described the characteristics However, clearly the instant case is error. impact of the victims and the emotional held Supreme Court has United States Second, family. crime on the it set errors, if that some constitutional harm family opinions and forth the member’s less, require automatic do not reversal characterizations of the crimes and Texas, 486 the conviction. v. Satterwhite stated defendant. For the reasons be- 249, 1792, 100 L.Ed.2d 284 U.S. 108 S.Ct. low, is irrel- we find that this information (1988); Chapman California, v. 386 U.S. decision, capital to a evant 18, 824, (1967).6 87 S.Ct. 17 L.Ed.2d admission creates a constitu- and that its determining whether er The standard risk that the tionally unacceptable there is a rea ror is harmless whether impose penalty the death an arbi- may possibility that the evidence com sonable trary capricious manner. might to the plained have contributed 2533, 500, 107 S.Ct. at U.S. conviction, Connecticut, 375 U.S. Fahy v. L.Ed.2d at 448. (1963), 85, 229, 11 L.Ed.2d 171 84 S.Ct. Relying Maryland, on Booth v. court must be able to declare that the previously this Court has held beyond a rea that it was harmless belief portion penalty death statute which Chapman California, v. sonable doubt. permits impact statements to be con victim 18, 824, 17 L.Ed.2d 705 87 S.Ct. sentencing phase of a mur sidered 52; (1967); also, Sharp, State v. see I.C.R. unconstitutional and prosecution der 498, (1980)(to hold eighth to the violation of the amendment harmless, supreme court must error Sivak, United States Constitution. State doubt, belief, beyond a reasonable declare 320, possibility no reasonable there was 542, Paz, P.2d 1 complained of contribut that such evidence Charboneau, 116 Idaho conviction). ed to case, (1989). In instant Texas, 486 U.S. Satterwhite by family made members statements 1792, 100 L.Ed.2d 284 108 S.Ct. investigation presentence included in the Supreme per- presented to the issue from Berta report and the oral comments of the defendant’s to a violation tained sentencing hear at the Herndon’s husband capi- right to counsel in a amendment sixth impact a victim ing meet the definition of sixth held that a case. The Court tal out the United States statement as set did not taint amendment violation Maryland. We Supreme Court in Booth v. (coerced (1958) 2 L.Ed.2d 975 California, 78 S.Ct. Chapman v. Court in 6. The confession); Wainwright, 372 U.S. L.Ed.2d 705 Gideon v. U.S. 87 S.Ct. (1963) (right con- that certain cites to cases which have held 83 S.Ct. rights Ohio, to a fair trial that are so basic counsel); stitutional Tumey as harm- infraction can never be treated their (1927) judge). (impartial L.Ed. 749 Arkansas, See, e.g., Payne U.S. less error. calculated; he ex- and that require planned not were as a whole did proceeding the murdering for the Instead, pressed no remorse the court reversal. automatic Herndons; Pizzuto had intimidated deter- that by analysis case to a case adopted jailers; his that Pizzuto question and threatened the evidence mine whether being rehabil- signs of able to be the in the sen- showed no affected might have itated; joked bragged about capital Applying trial. that he of a tencing phase murders; sociopath he exhibit- the is error rule to the admission the harmless features”; that he is a vio- sentencing ing “explosive impact statements at victim Paz, pleasure receives from 118 lent individual who hearings, this Court helpless; that Piz- (1990), inflicting pain upon the reviewed the anticipate the conse- sentencing hearing the to exam- zuto unable record of past his and that his judge may quences that the have behavior possibility ine the con- living indicates that he will by pattern victim influenced inclusion of been activity. a life of violent criminal imposing the death tinue impact statements Paz, In court out- penalty. impact statements ad- Unlike the victim death imposing reasons for lined its Charboneau,7 mitted both Booth mitigating and setting forth the penalty, by the impact given statements the victim sentenc- aggravating circumstances. The and ex- relatives were brief Herndon by ing judge found the crime committed as- typical feelings that one would pressed thought unprovoked, out and Paz one would feel under the sume a loved remorse, no that he had been Paz showed presentation of such circumstances. involving previous in two crimes involved sentencing judge would statements to the bodily injury, primary and that the serious him an of events or give not awareness penalty imposing reason for the death was already he was not feelings of which protection society for the because Paz Furthermore, significant- and more aware. had no indication of rehabilitation shown Charboneau, light ly, in of State v. following previous for vari- convictions in the instant case ex- sentencing judge Upon ous crimes. our review of the sen- in his order on denial pressly stated written stating the sentenc- tencing record Paz relief, petition post-conviction for ing imposing court’s basis for the death not considered these state- that he had beyond convinced a rea- penalty, we were reaching impose his decision to ments in by made doubt that the statement sonable reflects that penalty. The record the death describing his reaction one of Paz’s victims impose the judge’s the trial decision recommendation of the to the crime and his Pizzu- strictly on penalty death was based the trial penalty, death did not influence and the cir- past present behavior to’s impose death court in its decision to surrounding Herndon mur- cumstances Paz, penalty. we held that the error beyond a reason- convinced ders. We are require remand harmless and did not im- sentencing judge able doubt resentencing. regard to penalty posed the death without by fami- case, made the Herndon statutory aggra- the statements In the instant five Dugger, ly also Parker vating by found members. See circumstances were (Fla.1988) (although trial addition, the record indi- So.2d trial court. impact information con- judge heard victim sentencing judge cates that the decided investigation, presentence evi- tained in penalty upon Pizzu- impose the death based doubt beyond a reasonable record; murders dence showed prior criminal that the to’s Charboneau, family. In State v. Maryland, 7. In Booth v. impact impact the victim the victim detailed, detailed, discussing past describing were also very how statements statements were Charboneau, by he the victim threats daughter found the assaults on had the victim’s son members, family emo- grandchildren had made to various parents, of their how bodies changes observed in the vic- grandparent’s tional that were deaths had first heard of their daughter following young the murder of reports, ac- tim’s and detailed from the television mother, deep fear of Charboneau days following her and the the deaths and the counts of the parents. victim’s impact member of felt felt each severe emotional clauses of punishment not the cruel and unusual death sentence for murder was information, impact but it product of victim the United Constitution because States weighing ag- result of rather was the disclosure of the require pretrial does not factors); People gravating mitigating rely and plans to at the state evidence which 387, 944, Jones, 123 Ill.Dee. 123 I11.2d v. sentencing. (1988)(husband’s statement 528 N.E.2d 648 concerning wife sentencing loss of his at sentencing It is true that both that matter was prejudicial given fact not satisfy the re process and the trial must obvious.) that the ad- We therefore hold clause, quirements process of the due impact statements at mission of the victim 349, Florida, 430 U.S. 97 S.Ct. Gardner v. sentencing was harmless error

the time of 1197, (1977); v. Os State remanded for the case need not be 405, born, 102 Idaho sentencing. require process the due notice however sentencing necessarily ments at are not the Errors VIII. Cumulative Effect of v. New same as those at trial. Williams Sentencing. At Trial and 1079, York, 93 L.Ed. 337 U.S. 69 S.Ct. that the errors Pizzuto asserts denied, 338 U.S. reh. and at the sentenc occurred at trial which Osborn, (1949); L.Ed. 514 v. State together and con ing hearing, when taken 405, 631 P.2d 187 magnitude of such sidered as a whole are aggravation-mitiga- referring In to the deprived him of a fair trial as to have 19-2515(d) hearing, provides tion I.C. § right process as of his to due violation part: pertinent fifth and fourteenth guaranteed Constitu amendments of the United States aggravating [sjhould any party present 1, 13 of the Idaho Constitu tion and art. § pre- has not mitigating evidence which trial, to a fair tion. A defendant is entitled opposing to the viously been disclosed v. perfect not a trial. Bruton United but shall, upon parties, the court party or States, hearing until the adjourn the request, Enno, L.Ed.2d 476 State desiring to do so has had a reason- party State respond such evi- opportunity to able Estes, dence. error doctrine refers The cumulative Osborn, irregularities, each of an accumulation addressed essen- this Court P.2d 187 harmless, might but by itself appeal in this tially the same issue raised the ab- aggregated, the errors show when asserted that he the defendant wherein Campbell, fair trial. sence of a not process he was due because was denied (Ct.App.1983). aggravating cir- to which forewarned as con- all of Pizzuto’s We have considered prove sought to be- the State cumstances per- regard and are not tentions doubt at yond a reasonable denied a fair trial. We suaded that he was Osborn, held: this Court hearing. prejudicial or reversible error find no clearly sets forth that one of The statute affirm the conviction. trial and circumstances aggravating the listed beyond a reasonable proven must be C. mitigating doubt, outweigh any and must OF IDAHO CONSTITUTIONALITY shown, imposition prior to circumstances PUNISHMENT CAPITAL Generally, apparent it is death. STATUTE surprise under the facts be no there will Sup- Evidence IX. Prior Disclosure potential as to what any given case Aggravating Circum- porting are involved. aggravating circumstances stances. prosecution defense counsel Both pre- in the earlier participated who have I.C. contends ordinarily hearing trial will liminary process the due violates 19-2515 testimony given ample opportunity to rebut appraised and conversant with be well ag- sentencing in presented and issues involved the at the the facts and evidence hearing. gravation-mitigation We addi- additional evidence hearing present and to statute, in tionally note that the I.C. has not identified or mitigation. Pizzuto 19-2515(d), any provides that should any prejudice re- directed our attention § present previously evidence not party no- sulting non-disclosure or advance from disclosed, upon request court shall cir- warning aggravating tice or of those hearing opponent until the adjourn the that upon by relied the State cumstances opportunity to re- has had a reasonable by to the could not have been cured resort spond____ protections are suffi- Such 19-2515. protections afforded I.C. § cient and we will not attach thereto that Pizzu- therefore conclude and hold We requirement that the superfluous judicial under the right process to’s to due of law formally notify state a defendant the Idaho Constitution and United States particular aggravating circumstances Constitution, result were not violated as a rely. upon which it will prior to trial of non-disclosure the State relating aggravating circum- of evidence Id. at 631 P.2d at 195. support upon stances to be relied of post-conviction proceedings, In seeking penalty. the death petitioner is on the to establish a burden State, violation. constitutional Sivak v. Mandatory X. 19-2515 I.C. Creates § 112 Idaho 731 P.2d 192 Pizzu Presumption in Favor Death of authority supports to has cited which Penalty. Walker, 41 position. People Cal.3d Cal.Rptr. contends I.C. Pizzuto rights court held that it was error 19-2515 violates his constitutional California § mandatory presumption sentencing alleged to admit at defendant’s in that it creates a penalty him in the death violates deáth threats when not disclosed to favor of sentencing prior required to trial as under a the individualized determination California statutory required by eighth to the statute. Idaho has no such re amendment quirement, precedent and there is no man States Constitution and similar safe United dating statutory guards di in art. 6 of the Idaho such disclosure absent Constitu § rectives. tion. Pizzuto also asserts I.C. improperly places 19-2515 the burden § sentencing judge The is entitled to prove mitigating the defendant to cir range consider a of relevant evidence wide outweigh gravi cumstances exist which determining appropriate an sentence. ty aggravating The any circumstance. States, 552, 100 Roberts v. United portion at issue is the I.C. 19-2515 § Sivak following: State, 731 P.2d 192 (c) Where the court finds a statu- ... Johnson, see also State v. tory aggravating the court circumstance (1980)(district 618 P.2d 759 court has broad shall sentence the defendant to death determining is discretion what evidence mitigating unless the court finds that hearing); admitted at be may presented circumstances which be Pierce, outweigh gravity any aggravating (1979) (the evidentiary rules which strict imposi- circumstances found and make rigidly govern guilt proceedings are not unjust. death tion of during sentencing proceeding. applied requests that this Court re-exam- sentencing judge presumably The able to Osborn, relevancy reliability ine its decision ascertain the (1981),in which the range of information and materi broad during the resolved whether I.C. 19-2515 con- may presented al which to it impermissible shifting of the sentencing process disregard and to stitutes an unreliable). proof to the defendant. The record in burden of Os- irrelevant and this Court held: the instant case reveals that Pizzuto was born proof mitigating Here we are not concerned with to show the existence of a cir- cumstance, element of the offense but rather are or what the standard is for an engaged inquiry weighing mitigating in an into all relevant circumstances might against aggravating circumstances which facts and circumstance. weigh upon propriety capital pun- The United States Court re- weighing process, in our ishment. in penalty viewed the Arizona death statute — opinion shifting not the bur- does involve Arizona, U.S.-, Walton v. 110 S.Ct. persuasion but is concerned in- den of 3047, 111 in L.Ed.2d 511 As Adam- presentation of stead with the relevant son, challenged the defendant the Arizona in to the sentencer order information penalty death statute on the basis that it that a reasoned and considered decision presumption created a of death because The defendant’s can be reached. burden 13-703(E) provides A.R.S. that the court § raise, merely aggravation-mit- in the is impose if penalty “shall” the death one or igation hearing, any might factors which aggravating more circumstances are found possibly mitigate culpability tend to mitigating are held in- circumstances opportunity for the offense. He has full leniency. In Boyde sufficient to call for v. present argue those factors. The 370, 1190, California, 494 U.S. 110 S.Ct. then evaluates those factors court below (1990) Blystone 108 L.Ed.2d 316 in guidelines under the set forth the stat- Pennsylvania, 494 U.S. 110 S.Ct. decision, including ute. His his reason- (1990), the United ing, is then set forth in detail and this Supreme recently upheld States Court sim- process. the entire While court reviews ilar statutes. possible speak it is of a “burden” of Blystone Pennsylvania, the Su persuasion on the defendant to establish preme upheld jury Court instruction why leniency, he should receive we feel Pennsylvania which was based on a stat that, sentencing process, our under the death ute. The instruction stated that present- speak facts for themselves once penalty imposed aggravating if must be completeness ed. The of the evaluative no circumstances were found to exist but mandatory process below and the review mitigating present. circumstances were court, feel, consti- by this we withstands Supreme Blystone, in held that The Court omitted.) (Citations scrutiny. tutional requirement sentenc “the of individualized primarily Pizzuto relies on Adamson v. allowing ing capital in is satisfied cases (9th Cir.1988), Ricketts, F.2d 1011 865 mitigating jury to all relevant consider Appeals the Ninth Circuit Court of evidence,” -, which 110 S.Ct. at 494 U.S. at penalty omitted), held that the Arizona death stat- (footnote and concluded 1083 ute, very is similar to Idaho’s stat- Pennsylvania which did not statute because ute, presump- considering created an unconstitutional preclude the sentencer from Specifi- evidence, penalty.8 id., of the death type mitigating tion favor at any cally, -, Pizzuto contends that I.C. 19-2515 harmoni 110 S.Ct. at that it was § proof placed Supreme The principle. does not define the burden ous with that proving mitigating that the statute was on the defendant Court also concluded mandatory” “impermissibly as that Additionally, Pizzuto contends not factors. understood in Roberts v. Louisi fails to define how term was that I.C. 19-2515 also § ana, 49 L.Ed.2d mitigating 428 U.S. 96 S.Ct. judge weigh should (1976), and v. North Car aggravating factor. 974 Woodson against factors olina, S.Ct. presumption that a of death Pizzuto asserts it did not auto because no standard for L.Ed.2d is created because there is matically impose upon death conviction proof required determining degree statute, aggravating circumstances suffi- pertinent part as more of the of the Arizona 8. The Adamson, leniency.” quoted ciently is as follows: to call for substantial Ricketts, (9th 13-703(e) 865 F.2d reads in Adamson Arizona revised statute impose Cir.1988). part: “the court ... shall relevant finds one or sentence of death if the court at-, certain evidence con- mitigation sider of murder. U.S. types certain cerning unhappy childhood defendant’s The same true at 1089. S.Ct. — Arizona, upbringing. The issue raised in Ed- Arizona statute. Walton dings, was the sentencer could at-, whether at 111 L.Ed.2d U.S. mitigating any refuse to relevant consider at-. Supreme evidence. States The United -, California, Boyde v. Court held the sentencer could not L.Ed.2d 316 S.Ct. evidence, refuse to but that consider such upheld instruction Supreme Court may determine the “sentencer ... you conclude the stated “[i]f weight mitigating given relevant evi- outweigh the aggravating circumstances 114-15, 102 dence.” 455 U.S. at circumstances, you impose shall mitigating 877. States United Arizona, a sentence of death.” Walton v. Oklahoma, held v. 455 U.S. Eddings 3047, U.S.-, 110 111 L.Ed.2d 497 S.Ct. (1982), 104, 869, 102 71 L.Ed.2d 1 that S.Ct. (1990), citing Boyde from 511 v. Califor Georgia sentencing procedures the because upheld was on the nia. The instruction particular- the the jury’s focus attention on jury was instructed that it basis that the particular- nature crime and the ized of the “any to consider other circum allowed the individual defen- ized characteristics of gravity the of the stance which extenuates dant, jury’s properly discretion is the though legal crime it is not excuse even channeled. 10, 110 at for the crime.” Id. S.Ct. at 1198. 153, Gregg Georgia, In 428 U.S. 96 v. regard eighth pro to With amendment (1976), 2909, S.Ct. 49 L.Ed.2d 859 the Su- tections, Supreme the Court has held Georgia’s preme capital Court reviewed consideration is whether fundamental sentencing procedures which are similar to particular penalty death statute allows sentencing Georgia’s those of Idaho. stat- individualizing sentencing determina of required ute that at least one several by requiring tions consideration of the designated aggravating circumstances of the of character and record individual may must exist a defendant be sen- before partic fender and the circumstances Georgia sentencing tenced death. The ular v. offense. North Car Woodson sentencer, procedure that the also states olina, 280, 2978, 96 428 U.S. S.Ct. 49 jury, Georgia which under law is “is also L.Ed.2d 944 see Lockett v. any other appropri- authorized to consider Ohio, 586, 2954, 98 S.Ct. 57 438 U.S. aggravating mitigating ate circum- or (1978). L.Ed.2d The three recent 973 Unit 197, 2936, stances.” 428 U.S. at 96 S.Ct. ed cases Supreme States Court discussed Additionally, L.Ed.2d the sen- 49 at 888. — above, Arizona, -, U.S. Walton require tencing procedures Georgia an 3047, (1990),Bly 110 111 L.Ed.2d 511 S.Ct. appeal automatic of all death sentences to 299, 110 Pennsylvania, stone v. 494 U.S. Georgia re- Supreme Court 1078, (1990), 255 S.Ct. 108 L.Ed.2d to deter- quired to each sentence review 370, Boyde 494 110 California, U.S. imposed under the mine whether it was 1190, (1990), S.Ct. all held In prejudice. or addi- passion influence ques that the or instruction in statute tion, held that review Gregg Georgia tion to the re conformed constitutional Supreme Georgia function of the Court quirements eighth amendment on assurance that death affords additional that the sentencer was allowed to imposed basis in an will not be arbi- sentence may consider all evidence make trary capricious general- manner. See culpable less than another who Georgia, defendant 408 U.S. ly Furman v. had the same crime and thus committed L.Ed.2d 346 S.Ct. sentencing.

allows individualized Charboneau, In State v. Oklahoma, (1989), 455 U.S. 774 P.2d this Court considered Eddings v. (1982), propounded essentially argument L.Ed.2d 1 the Su S.Ct. the same 19-2515(c) held that I.C. preme an Oklahoma case Court reviewed § presumption not favor of sentencing judge con- does create a which the refused to the death penalty. view the fore tal case must be revealed to the defendant going cases we hold that I.C. 19-2515 may so that he opportunity have the presumption does not create a explain favor of argue accuracy of the infor penalty the death because it does not ex mation report. contained in that Gardner pressly state sentencing judge Florida, how the is v. weigh mitigating evidence. As the Creech, L.Ed.2d 393 In State v. Supreme Court held in Eddings Okla this Court homa, may the sentencer determine what held that the United States Constitution weight place mitigating evidence. A does not mandate that a deci presumption in favor of the penalty death sion be made on the testimony. basis live is not created because the Oklahoma stat Based on policy reasons set forth in ute does not designate proof a burden York, Williams v. New requirement by which a defendant must 93 L.Ed. 1337 this Court prove mitigating circumstances. Like the held the “sixth amendment to the United Georgia sentencing procedures which were States require Constitution does not that a upheld by the United capital States defendant be opportu afforded the in Gregg v. Georgia, capital nity sentenc to confront and cross-examine live wit ing procedures provide for individual sen nesses in sentencing proceeding.” Si tencing safeguards against State, arbitrary 197, 216, vak v. capricious imposition 192, (1986); of the pen death 211 Creech, State v. 105 Idaho alty. Osborn, 405, 362, State v. 102 Idaho 670 P.2d 463 (1981), 631 P.2d 187 this Court held that the day sentencing, On the Pizzuto re- completeness of process the evaluative quested grant that the trial court a continu- the time of sentencing, and mandatory provide ance and funds to send counsel to review this Court withstands constitu Michigan to interview the witnesses who scrutiny. tional Idaho Code 19-2515 al § provided Berro, information to or as an flexibility sentencing by lows allowing alternative, investigator to hire an in Michi- the sentencer to consider all relevant miti gan to “check out these stories.” Pizzuto gating limiting evidence without the miti acknowledged at that time that neither he gating may factors that be considered. We attorney nor his previously requested had therefore hold that I.C. 19-2515 does not § provide investiga- court to funds for an create presumption a in favor of the death tor subpoena Michigan or to victim. penalty eighth and does not violate the sentencing The judge request denied the prohibition against amendment’s cruel and a continuance on the basis Pizzuto punishment. Osborn, unusual State v. 102 adequate opportunity prior had and time 405, Idaho 631 P.2d 187 sentencing requests. to make such We agree. adequate Pizzuto had time to take XI. No Right Violation Confron- steps necessary gather whatever he felt tation. information to rebut the evidence contained Pizzuto contends that his sixth Rather, presentence report. in the Pizzuto right amendment to cross-examine adverse sentencing hearing waited until the to re- witnesses was violated at his quest gathering assistance in such informa- hearing. Although the State called both tion. hold under the We circumstances presentence investigator the Idaho prejudicial that no or reversible error re- Michigan presentence investigator as wit having opportu- sulted from Pizzuto not an sentencing, nesses at Pizzuto asserts that nity to cross-examine each source of the adequately this did not him to con allow presentence information contained in the front the sources of the information relied reports. presentence investigators in the preparation report. Participation Jury of the XII. in Sentenc- ing. has United States Court process requires acknowledges held that due that there is presentence report capi- guarantee contents of a in a no constitutional to have a

769 the trial the Arizona statute punishment. judge. Under appropriate determine U.S.-, ag- exists Mississippi, 494 judge whether there 110 determines v. Clemons mitigating circumstances Hild (1990); gravating 1441, L.Ed.2d 725 108 S.Ct. Florida, 638, impose a death sentence 490 109 S.Ct. and is directed win v. of the Spaziano v. (1989); if finds one or more 2055, 728 he or she 104 L.Ed.2d Florida, 447, 3154, aggravating circumstances9 104 82 enumerated 468 U.S. S.Ct. circum- (1984). However, mitigating are no urges he and that there L.Ed.2d 340 sufficiently to call for stances substantial this to reexamine its decisions Sivak, 900, leniency. 105 Idaho 674 P.2d 396 Creech, 362, v. (1983), Idaho State held, repeatedly has we As this Court (1983). We decline to review 670 P.2d 463 principle now reaffirm the well established long light issue further in line provides that a that I.C. 19-2515 establishing pun clearly Idaho cases jury impose sentence in judge rather than a capital case is to be deter ishment capital case does not violate a defendant’s State jury. by judge mined rather than a rights. have held on nu constitutional We 860, Lankford, v. 781 P.2d 197 federal occasions that there is no merous Charboneau, v. (1989); 116 Idaho State requirement jury partic constitutional Fain, v. 129, (1989); State P.2d 299 sentencing process and that ipation in the v. 82, (1989); State jury participation the decision to have Beam, (1985); 109 Idaho 710 P.2d 526 sentencing process, as contrasted with Fetterly, v. State 109 Idaho sentencing, judicial discretion within denied, cert. 479 U.S. 107 policy determination individual v. (1986); State 93 L.Ed.2d 164 Lankford, states. State 116 Idaho Sivak, Charboneau, (1989); State denied, cert. 129, 145, Creech, Creech, cert. de 362, (1983), 670 P.2d 463 denied, 1051, cert. (1983), P.2d 463 465 U.S. nied, 1051, 1327, 79 U.S. S.Ct. see 1327, (1984); 79 L.Ed.2d 722 104 S.Ct. (1984); see also Walton v. L.Ed.2d 722 766, Fetterly, 109 Idaho also State v. — U.S.-, Arizona, 3047, 110 S.Ct. Sivak, State v. (1985); 105 Idaho (1990). L.Ed.2d 511 denied, cert. 900, (1983), 674 P.2d 396 Arizona, 1220, 3591, v. 82 L.Ed.2d 887 Walton In the United States U.S. S.Ct. Charboneau, (1984). 116 Idaho State Supreme upheld reviewed and Court — denied, cert. 129, 299, sentencing provides Arizona statute which 287, -, 107 L.Ed.2d 267 guilty by that once a defendant is found 110 S.Ct. murder, carefully analyzed existing case jury degree separate first a this Court of sentencing by judge a sentencing hearing trial and held that is held before the law previously The defendant was convicted 9. A.R.S. 13-703. Sentence of death or life 2. § Imprisonment possibility involving of release felony without the use in the United States prescribed the defendant has served a until person. on another 3. In or threat of violence time; period aggravating mitigating cir- the offense the defendant the commission of cumstances grave knowingly to an- created a risk of death persons person to the other in addition vic- determining impose a sen- E. whether to tim of the offense. imprisonment tence of death or life ... aggravating court shall take into account 6. The defendant committed the offense in mitigating sub- circumstances included in heinous, especially depraved cruel or man- an F this section and that there are no sections ner. mitigating sufficiently substantial circumstances leniency. to call for defendant has been convicted of one 8. The Aggravating to be considered F. circumstances homicides, as defined or more other following: shall be the 13-1101, during which were committed § an- 1. The defendant has been convicted of of the offense. commission United States for which other offense imprison- life under Arizona law a sentence of possible. ment or death was jury rather than a does not violate the choice” between the alternative verdicts rights. defendant’s constitutional See also imprisonment. Thus, of death and life Paz, 542, 118 Idaho 798 P.2d 1 capital sentencing under Arizona’s (1990). Furthermore, specif this Court has scheme, judge’s finding any partic- ically participation held that jury of a in the aggravating ular circumstance not does sentencing process in capital case is not (i.e., of itself “convict” a defendant re- required under art. 7 of the Idaho quire penalty), § the death and the failure Beam, Constitution. any particular find aggravating cir- (1985); Sivak, 710 P.2d 526 “acquit” cumstance does not a defendant (i.e., cert. preclude the death penalty). denied, 468 U.S. 104 S.Ct. (Citation at Id. 1755. L.Ed.2d 887 see also State v. Lank omitted.) Supreme The Court held in Wal ford, ton that a required state is not to denom We therefore hold it was not error in the aggravating inate circumstances as “ele judge instant case for the trial rather than permit ments” of the offense or only impose determine and Pizzuto’s jury to determine the existence of such sentence. circumstances. The capital Walton concluded that the Arizona

XIII. Sentencing Whether Statute sentencing scheme does not violate the Lists Elements the Crime. Likewise, sixth amendment. Idaho sen tencing scheme does not violate constitu Pizzuto asserts that the Idaho stat safeguards tional protections. Walton utory imposing scheme for penal death — Arizona, U.S.-, 110 S.Ct. ty violates his sixth and fourteenth amend Poland v. Ari rights ment under the United States Con zona, stitution, provisions and similar under the L.Ed.2d 123 Idaho Constitution. Pizzuto contends that erroneously I.C. 19-2515 lists elements XIV. Aggravating Circumstances. of the offense as factors to be considered following and determined trial court found the judge in statutory aggravating (1) right violation the defendant’s circumstances: have a that at jury’s determination on the time Pizzuto the elements of the murdered Del Herndon, Herndon; crime. he also murdered Berta (2) the murders of the espe Herndons were primarily Pizzuto relies on v. Adamson atrocious, cially heinous, cruel, and mani Ricketts, (9th Cir.1988), 865 F.2d 1011 exceptional (3) depravity; by fested Ap United States Ninth Circuit Court of murder surrounding and the circumstances peals penalty case wherein Arizona’s death commission, it’s the defendant exhibited ut statute, very which is similar to Idaho’s life; (4) disregard ter for human the mur statute, was held unconstitutional for sev accompanied ders were specific with the reasons, including argument eral Pizzuto’s Herndons; intent to cause the deaths of the However, in this section. the United (5) by prior by the defendant conduct and Supreme States Court reviewed the same conduct in the commission of the murders — Arizona, U.S.-, issues in Walton v. propensity in this case has exhibited a 3047, (1990), 110 S.Ct. 111 L.Ed.2d 511 and commit murder which will constitute a con citing Arizona, 147, 106 Poland v. 476 U.S. tinuing society. threat to 1749, (1986), S.Ct. 90 L.Ed.2d 123 held: Aggravating sepa- aggra- circumstances are not Pizzuto asserts that three of the offenses, penalties vating rate but are “stan- circumstances contained I.C. guide overbroad, making vague dards to 19-251510are and and [the] § 19-2515(g) ag- following statutory 10. are able doubt before a sentence of death can be circumstances, imposed: (1) gravating at least one (1) beyond previously which must be found to exist a reason- The defendant was convicted of another murder.

771 1759, 420, 64 100 S.Ct. Georgia, 446 U.S. eighth amendment to violate therefore (1980), States Su- the United and art. L.Ed.2d 398 Constitution States the United statutory where the preme The three held that the Idaho Constitution. 6 of § aggravating circum- aggravating defining cir- language challenged enumerated vague, must be a 19-2515 are: there under I.C. stance is itself cumstances § is to meet if the state limiting construction hei- especially The murder was (g)(5): and obligation to “tailor its constitutional atrocious, manifesting nous, ex- or cruel that avoids the in a manner apply its law depravity; ceptional infliction of arbitrary capricious and murder, or circumstances (g)(6): By the 428, 100 S.Ct. penalty.” U.S. death commission, the defen- surrounding its at 1764. disregard for human utter dant exhibited

life. limiting previously adopted a This Court defendant, by prior conduct (g)(8): The “heinous, atrocious construction to the of the mur- in the commission or conduct I.C. contained language cruel” propensity der at hand has exhibited Osborn, 102 19-2515(g)(5). In v. State § probably con- murder which will commit 405, this Court continuing society. threat to stitute by the Florida Su adopted language used this issue has been Pizzuto admits approved preme Court and which repeatedly upheld previously addressed 242, Florida, 428 96 S.Ct. v. U.S. Proffitt Court, he asserts that by this however (1976); 2960, also State 49 L.Ed.2d 913 see contrary to authority there is substantial 129, Charboneau, v. taken this Court which position (1989). Osborn, also In this Court cir- challenged aggravating holds that the language defining “exceptional adopted the unconstitutionally vague. are cumstances used the Nebraska depravity” 549, Simants, 197 Neb. Court in v. State eighth amendment a Under the 878, 881, denied, 434 U.S. 250 N.W.2d cert. analyzed by vagueness on claim based denied, 231, 158, L.Ed.2d reh. 98 S.Ct. determining challenged aggra whether 496, L.Ed.2d 322 434 U.S. 98 S.Ct. vating adequately circumstance informs Charboneau, (1977). v. what it must find order the sentencer held this Court penalty, or whether it impose the death adopted re language in Osborn unchanneled dis that the leaves the sentencer with from I.C. vagueness arbitrary capricious an moves cretion to make there is no viola 19-2515(g)(5)and hence Maynard Cartwright, decision. § eighth amendment based 100 L.Ed.2d 372 tion of the 108 S.Ct. U.S. Cartwright, Georgia, Maynard Gregg v. Follow 100 L.Ed.2d 372 49 L.Ed.2d 859 see also S.Ct. Charboneau, again reviewed ing this Court Georgia, 408 U.S. Furman v. 19-2515(g)(5)in upheld I.C. Godfrey Code, (c), (d), (e) (f), (b), it (2) or subsections the time the murder was committed At specific accompanied intent to with the another murder. was defendant also committed being. (3) great knowingly the death of a human created a cause The defendant defendant, (8) by prior conduct or con- many persons. The risk of death to of the murder at (4) in the commission remunera- duct hand, murder was committed for propensity to commit has exhibited a promise or the of remuneration tion or the probably a con- will constitute employed murder which tinuing another to commit defendant society. promise of threat or the murder for remuneration (9) against a for- was committed The murder remuneration. officer, heinous, peace offi- present executive (5) mer or especially atro- was The murder court, cer, judicial cruel, officer or of the manifesting exceptional de- officer cious or attorney exercise prosecuting because of the pravity. murder, duty. (6) official By sur- or circumstances (10) against commission, was committed The murder rounding ex- its the defendant or potential witness in a criminal disregard witness for human life. hibited utter pro- legal proceeding of such (7) because civil defined as murder The murder was one 18-4003, ceeding. degree by the first section Lankford, 116 Idaho held, 781 P.2d 197 phrase “the is meant to be reflective of acts or surrounding circumstances crime highest, exhibit the ut- In Maynard v. Cartwright, 486 U.S. most, life, disregard i.e., callous for human (1988), cold-blooded, pitiless slayer.” In Os- United States Court held that the subsequent born and in cases we have held aggravating provision circumstance of an that limiting construction meets consti- penalty Oklahoma death statute which re- tutional Charboneau, standards. State v. heinous, especially ferred to atrocious or (1989); 116 Idaho 774 P.2d 299 Gibson cruel murders was unconstitutionally State, 110 Idaho vague in eighth violation of the amend- However, Aragon, 107 Idaho ment. 690 P.2d Lankford, State v. Creech, State v. this Court upheld the use of the We language same continue to ad- con- position tained in here to that prior I.C. 19-2515. and reaffirm This Court distin- our § guished holdings that statutory language 2515(g)(6) Idaho’s I.C. is from not uncon- § that in stitutionally vague. the Oklahoma statute on the basis jury sentencing Oklahoma has while Pizzuto also asserts I.C. judicial Idaho adheres capi- 19-2515(g)(8)is impermissibly vague. § tal murder cases. Creech, State v. aggravating These circumstances are upheld aggravat this Court terms of art that are commonly under- ing being circumstances as constitutional. among stood judi- members of the doing so the Court discussed its con result, ciary. As a potential in- for struction of the “propensity” word as fol consistent application that exists as a lows: result jury sentencing is eliminated judge

.where the sentences. We “propensity” would construe to ex- clude, example, person who has no 781 P.2d at 214. The episode inclination to kill but in an constitutionality language defining rage, during “heinous, family such as an emotional atrocious and “excep- cruel” and quarrel, or lover’s commits the offense depravity” changed tional has not since of murder. We would doubt that most Lankford, and we hold that the of those again convicted of murder would limiting placed construction on I.C. murder, commit and rather we construe 19-2515(g)(5) eighth does not violate the § the “propensity” language to specify prohibition against amendment cruel and person willing, who is a predisposed punishment. unusual killer, a killer destroy- who tends toward Pizzuto also asserts that the stat ing another, the life of one who kills with limiting ute and the construction of the provoca- less than the normal amount of aggravating circumstance defined I.C. tion. propensity We would hold that as- 19-2515(g)(6) unconstitutionally vague proclivity, susceptibility, sumes a states, murder, “[b]y wherein it or cir affinity committing even an toward commission, surrounding cumstances its act of murder. the defendant demonstrated utter dis regard 370-71, for human life.” Pizzuto contends Id. at 670 P.2d at 471-72. The statutory language that this language and its limit Court noted just similar to that ing objectively guide quoted, upheld construction does not the United States the sentencer’s discretion and narrow the in Gregg Georgia, 428 application penalty of the death as mandat U.S. 96 S.Ct.

ed Godfrey Georgia, Sivak, In State v. (1983), 64 L.Ed.2d In this Court reaffirmed Osborn, constitutionality 19-2515(g)(8). Idaho 631 P.2d the of I.C. § limiting a opin- construction was We find no reason to reconsider our placed 2515(f)(6) on I.C. and this Court ions in those cases. § killing ac- provoked was additionally that and calculated asserts depravity which ex- complished a exhibits support finding not a does the evidence explanation, comprehension, ceeds all statutory enumerated three under these decency. human and Idaho Code circumstances. aggravating states, murder was 19-2515(g)(5) § “[t]he especially The heinous section cruel, heinous, mani atrocious or especially in which the refers to the manner statute depravity.” limit festing exceptional The Fain, the committed. State crime was Osborn, adopted in and ing construction (1989). In ex 19-2515(g)(5),is as fol applicable to I.C. § in amining the manner and method which lows: we hold Pizzuto murdered the Herndons finding that meaning supports the evidence a feel that the of such that [W]e heinous, especially atro knowledge, the murders were

terms is a matter of common cruel, de manifesting exceptional cious or ordinary not have so that an man would 19-2515(g)(5). pravity. Idaho Code guess § It is our to at what was intended. interpretation heinous means ex- that strikingly facts of this are sim The case evil; shockingly that tremely wicked or Lankford, 116 ilar to in those outrageously wicked atrocious means Idaho which vile; designed cruel means that killed. The husband couple married was high degree pain to with utter inflict to kneel down was ordered Lankford to, of, enjoyment even the indifference or killed Lankford front of him and was when suffering What is intended to of others. head with struck him in the back capital are those crimes be included nightstick. wife rushed to When the capi- husband, the actual commission of the where mortally side of her wounded accompanied by felony tal was such addi- her to kneel down beside Lankford ordered from apart tional acts as to set the crime body, struck her and she was husband’s capital con- night the norm felonies—the neck with the same the back which is un- pitiless scienceless crime affirmed the stick. In this Court Lankford necessarily torturous the victim. findings to and stated: trial court’s Lankford

The brutal manner bludgeoned the skulls of his two victims portion interpreting this of the stat- finding clearly supports trial court’s ute, key “exceptional.” is It word hei- especially were murders argued every might murder in- nous, manifesting ex- or cruel atrocious The depravity. volves use the word ceptional depravity. however, “exceptional,” only confines it depravity to situations where those P.2d 214. at Idaho at apparent to such an extent as to obvious- are The facts of case Lankford morality ly offend all standards of Here, Pizzuto ordered strikingly similar. intelligence. his to his drop trousers Herndon Delbert cabin, he where at at 200. and crawl into knees Likewise, hammer. him with a bludgeoned case, support In the of its instant similarly was beaten Herndon Mrs. finding especially that the murder hei- The the head. death with hammer blows nous, cruel, manifesting excep- atrocious or in which the Herndons were manner brutal trial court stated depravity, tional clearly supports trial court’s murdered following: finding especially the murders were his approached victims defendant heinous, ex- manifesting cruel atrocious or County near cabin in Idaho a remote ceptional depravity. Code them, gun McCall, pulled a Idaho. He 19-2515(g)(5). § drop pants Mr. Herndon to he forced states, cabin, 19-2515(g)(6) into he bound their Idaho Code and crawl murder, sur proceeded or circumstances legs, “[b]y and then arms and commission, ex rounding the defendant skulls with a its in the back of their smash disregard for human life.” un- hibited utter The manner in which this hammer. support finding of a that Pizzuto demon- charges against degree him for first mur- disregard strated utter for human life the Psychiatric der. evidence tended to show trial court stated: vengeful Creech was violent and and approached

The defendant the Herndons that he experienced no remorse for his gunpoint at up and tied them for the actions. Additionally, Creech claimed to purpose stealing from them. The cir- have approximately forty people. murdered cumstances demonstrate the Herndons case, In although the instant Pizzuto has posed no threat to the Defendant’s safe- not committed many as murders as did ty escape or to his from the scene of the Creech, the support finding evidence does a robbery. killing accomplished The that Pizzuto propensity has exhibited a rage, not out revenge, personal or for commit murder. gain. The murders were cold-blooded At the hearing the evidence pitiless. and killing The was committed included outstanding two warrants for the for the sake killing. arrest of charging Pizzuto him with first The support evidence does finding a degree murder in connection with two mur- disregard utter for human life under I.C. ders in Washington. the state of There 19-2515(g)(6). approached Mr. § testimony was also joked that Pizzuto had gun, Herndon with a drop then made him and boasted killing about other individuals. pants and crawl into the cabin where he At various times he had threatened his proceeded bludgeon the skulls of both jailers by claiming to be the mafia and his victims with a hammer. He left then that he revenge upon would seek his re- lying them on the floor to die and Mr. prison. lease from Herndon was Pizzuto’s ex-wife testi- lying left on the floor of the convulsing. supports concerning cabin fied the many beatings evidence a violent conclusion unpro- the murders were she suffered at the hands of Pizzuto. The voked, pitiless. conscienceless and Follow- psychiatric evidence admitted at the time of murders, ing the Pizzuto went back to a sentencing tended to show that Pizzuto is room, motel drank beer with his cohorts violent and shows no remorse for his ac- pictures and had taken flaunting of himself evidence, tions. This combined with the pistol he stole from his victims. He unprovoked Herndons, sup- murder of the joked bragged killings and about the with ports finding that Pizzuto kills with less his associates. Pizzuto demonstrated no than provocation the normal amount of remorse for his actions. We therefore hold willing is a killer who tends toward de- surrounding that these acts the crime ex- stroying life of another. The evidence highest callous, hibit the and utmost utter supports finding the trial court’s that Piz- disregard support for human life propensity zuto exhibits a to commit mur- finding aggravation trial court’s under continuing der which will constitute a 19-2515(g)(6). I.C. § society. threat

Pizzuto also asserts that the evi Additionally, Pizzuto submits that dence was support finding insufficient to states, judge’s finding under 19-2515(g)(8) under I.C. I.C. § defendant, by prior 19-2515(g)(6) duplicative con conduct or of the find- “[t]he duct the commission of ings (g)(2) (g)(7). Osborn, the murder under hand, propensity has exhibited a to commit phrase held that the “utter dis- probably murder which will constitute regard” must be viewed reference to continuing society.” threat acts other than those set forth I.C. (3) 19-2515(g)(2), footnote See §§ Creech, support No. 10. The record does not Pizzu- upheld this Court the trial sentencing judge’s to’s assertion that the finding court’s that the defendant demon- findings duplicative overlapping were propensity strated a to commit murder. regard aggravated with to the had committed above stated Creech murder at least four times, pending other and there circumstances. were authorizing expendi- the

D. ease. Before particular pur- funds a public ture of for RELIEF POST-CONVICTION defense, indigent’s pose in trial an the funds court must determine whether Expert Assistance in XV. Denial of justice. necessary in of are the interest Preparation Post-Conviction of Hence, 838, 537 at 1374. 96 Idaho at P.2d Relief. must make a determination the trial court Pizzuto contends that trial adequate will an defense be of whether process him due of law and court denied the re- available to the defendant without protection by refusing equal of the laws quested expert. If the answer is in the appoint attorney expert an an render negative necessary are then the services perform opinion regarding trial counsel’s provided by the state. and must be requested psychiatrist also a ance. Pizzuto 415, 776 Bingham, 116 Idaho neurologist or to examine him to review the grounds; on Estes overruled other evaluations that were conducted on Pizzuto State, P.2d 135 sentencing. prior to trial and Olin, showing of Pizzuto made no inef is within the This determination He fective of counsel. did not assistance court. sound discretion of the trial “[A] him, request attorney represent another request expert denial assistance of a for only appointed consulting at that he be a appeal disturbed absent a will not be torney performance of his to evaluate the trial abused its dis- showing that court provided attorney. a was Where defendant rendering by cretion decision which is a expense, attorney public with an at his clearly unsupported by erroneous request is a matter for additional counsel circumstances of case.” committed to the sound discretion of the 207. 648 P.2d at Dallas, trial court. State case the instant Pizzuto was examined showing a Absent psychiatrist, psycholo- by neurologist, a a a counsel, the trial ineffective assistance epilepsy specialist. The trial gist and an by court not abuse discretion not did its opinions of each of court reviewed attorney appointing an additional for Pizzu Dr. these as well as that of Meri- experts, to. psychiatrist kangas, licensed and neurolo- a gist, had all of Pizzuto’s who reviewed ap request Pizzuto’s medical records. Our review the trial psychiatrist pointment of a neurolo opinions court’s determination that medical gist anticipated “epilepsy to an related did not suffi- experts demonstrate defense.” The record demonstrates that appointing ex- cient basis for additional previously by Pizzuto examined had been perts an discretion. The was not abuse of epileptologist, epi an but did not offer the reports reveal did not a sufficient basis to leptologist’s report for the court’s consider Pizzuto from believe that suffered an or- previously granted ation. court had The ganic which man- physiological disorder defendant, upon request, funds for dated medical examinations. further expert. consultation with such an for the court denied additional funds devel We hold that under the facts this case regarding opment expert evidence did not its the trial court abuse discretion signif no epilepsy defense on basis that by denying request Pizzuto’s for additional developed likely icant evidence could legal medical or assistance. additional consultation. XVI. Failure to Disclose Letter State’s Powers, In State v. Regarding Pizzuto’s Mental held: Health. not automatical- assistance is [Financial contends that the district depends upon ly mandatory, but rather psy from judge not disclose a letter as revealed did needs defendant [the] White, previously chiatrist, had Dr. who facts and circumstances each 776 judge to the he stating defense,

written that would nesses called the abandoned his opinion an not render because Pizzuto re- role as a neutral fact demon- thereby finder to see him. fused Pizzuto contends that strating prejudice against bias and Pizzuto. also Dr. White wrote a second letter to the Additionally, Pizzuto contends the trial that judge stating trial that Pizzuto’s decision judge being biased as was a result of ex- person not to see him was a made posed to pre- extraneous information while competent to consider the of ramifications siding prosecutions over the of Pizzuto’s his decision. companions, Rice and Odom. White’s Dr. comments were based on a right It has been held the that conversation with Pizzuto which occurred process requires to due an trial impartial December, 1985, and on conversations judge. Tumey Ohio, 510, v. 273 47 U.S. attorneys. with his letter The second sent 437, 71 (1927); S.Ct. L.Ed. 749 v. State 30, judge to trial April the was dated 1986. 860, 116 Lankford, Idaho argues attorneys Pizzuto that did not However, (1989). judge a may not be dis copy a of the receive second letter nor did qualified prejudice for unless is shown it they become aware of its until contents prejudice that the against is directed the seeing findings after the of fact and con- party is of such nature and character petition of clusions law contained in for the improbable as would render it that under post-conviction relief. asserts that Pizzuto party the circumstances the have a could the court’s trial failure to reveal the con- impartial fair and trial. Lankford, State v. 30,1985 April tents letter constitutes id; Waterman, 259, 36 210 Idaho Florida, reversible error. 430 Gardner v. Bell, 636, P. 208 Bell v. 349, 1197, 97 S.Ct. (1910). 111 P. 1074 order to constitute (1977). Gardner, States United Su- legal prejudice, or allegations preju- bias preme Court reversed a death sentence on in post-conviction dice and sentence reduc- portion presentence that a basis proceedings tion must state facts that do investigation report was not disclosed to simply explain more than course the defendant. The Court based events involved a criminal trial. State v. opinion importance giving its on the 688, 701, 113 Lankford, Idaho an opportunity counsel to comment (1987). “In judge 723 Idaho a cannot may sentencing facts influence the it disqualified prejudice actual unless Although process requires decision. due prejudice is directed shown is that the contents of presentence report a litigant against and is of such nature a prior be disclosed to the defendant to sen- impos- and character that it would make it tencing, required and it is trial litigant get a fair trial.” sible for presentence court disclose all contents Lankford, 113 Idaho 747 State v. in the report, compe- instant case Pizzuto’s Waterman, 722 P.2d ability tency the ramifi- understand 210 P. 208 Whether of his cations decision not to with Dr. talk judge’s involvement in the defendant’s White was not an issue in or at point disqualifica- case reaches where Accordingly, trial. we find no error. participation tion from further case necessary is left to the sound dis- becomes Motion to Disqualify Judge. XVII. Sivak, judge. the trial cretion of 25(b)(4), Pursuant to Pizzuto I.C.R. disqualify the trial him requested judge to provide does not with presiding self from over post-conviction Judge any insight as what information proceedings he grounds relief on the presid- may have Reinhardt received while prejudiced against Pizzuto. biased prosecutions ing over of Rice judge stating The trial denied the motion Judge If fact Reinhardt had prejudiced Odom. that he was neither biased nor information, prejudicial exposed been against party. or in favor of As the either capable disregarding claim, judges are for his that the basis Pizzuto asserts “[t]hat disregarded should be is well judge, questioning trial some of the wit- that which system.” dispropor- judicial tence of death not excessive accepted precept in our State, 197, 205, tionate. Sivak Strickland, citing, Ford v. Penalty Imposed XVIII. Death Under Cir.1983), (11th cert. de F.2d Prej- Passion and Influence of

nied, udice. Rivera, (1983)(citing L.Ed.2d 176 Harris 460, nothing that 339, 345, 464, There is in the record 102 70 S.Ct. 454 U.S. was indicates that the sentence of death 530, (1981)). 536 L.Ed.2d or passion, prejudice due to of the influence reviewing no the record we find Upon any arbitrary other factors. evidence of the trial purpose to believe that the basis presented supports jury’s at trial the ver in an of witnesses was court's examination degree murder, robbery of and dict first testimony the attempt favorable to to elicit the grand theft. At district However, if mo- position. even this State’s by court heard evidence submitted both true, by Piz- alleged Pizzuto were tivation sides, findings mitigation made in and both of specify failed to the exact incidents zuto is aggravation. We hold that there and alleged Pizzuto therefore misconduct. findings support the sufficient evidence speculate us as the motivation asks not and that the sentences herein were to de- Judge questions Reinhardt’s behind of imposed passion, under the influence prejudiced against Pizzu- termine if he was prejudice arbitrary factors. or v. 116 generally Lankford, to. See State 860, 197 find Idaho 781 P.2d We the Proportionality XIX. Death of to be without merit and we this assertion Sentence. by no of the trial find abuse discretion argues for Pizzuto that Counsel court. disproportionate the death sentence in which the compared when to other cases

E. penalty imposed. or not death was was all requires Idaho 19-2827 Code § AUTOMATIC REVIEW by death sentences shall be reviewed of Idaho and that the Court required by Court is statute This specifically “[wjhether the shall determine penalty to review all cases where the death dispropor sentence of death is excessive or imposed. Idaho has been Code 19-2827. penalty imposed tionate to the in similar doing so, (1) duty it is insure our cases, considering crime both the and imposed the death sentence was not under 19-2827c(3). defendant.” Idaho Code § (2) passion prejudice; the influence or supports judge’s find imposed evidence We have reviewed sentence statutory ing aggravating circum trial upon light court stances; (3) compared and that when the crime the record and it with the sen both considered, capital imposed and the are a sen- tences other cases.11 defendant 542, 273, Paz, (1990); Bainbridge, Idaho 698 335 State v. 118 P.2d 1 v. 108 P.2d 11. Idaho 798 197, 860, 358, Lankford, (1985); Aragon, State v. 116 Idaho 781 P.2d v. 107 P.2d State Idaho 690 1061, 2058, stay granted, 180, 104 (1984); 490 U.S. 109 S.Ct. McKinney, State v. 107 Idaho 293 Charboneau, (1989); v. 116 L.Ed.2d 623 State Paradis, (1984); 687 P.2d 570 State v. 106 Idaho 129, (1989); McKinney v. Idaho 774 P.2d 299 117, denied, (1983), 676 P.2d 31 cert. U.S. 468 State, 1125, (1989); 1219 115 Idaho 772 P.2d 1220, 3592, (1984); S.Ct. 82 104 L.Ed.2d 888 231, Fetterly, 701 v. 115 Idaho 766 P.2d State Gibson, 54, 675 33 State v. 106 Idaho P.2d Windsor, 410, (1988); 716 State v. 110 Idaho 1220, denied, (1983), 468 S.Ct. cert. U.S. 104 964, denied, (1985), U.S. 107 P.2d 1182 cert. 479 3592, (1984); Sivak, v. 105 82 L.Ed.2d 888 State 463, (1986); Scrog L.Ed.2d 408 State v. S.Ct. 93 900, denied, (1983), 674 P.2d cert. 468 Idaho 396 380, gins, 110 716 P.2d cert. Idaho 1152 3591, 1220, (1984); 104 S.Ct. 82 L.Ed.2d U.S. 887 denied, 989, 582, 93 479 U.S. 107 S.Ct. L.Ed.2d Creech, 362, 670 P.2d 463 State v. 105 Stuart, 163, (1986); 715 State v. 110 Idaho 585 4, (1983); Major, v. 105 Idaho P.2d 703 State 665 (1985); Fetterly, 833 109 Idaho State Mitchell, (1983); 104 Idaho State denied, 710 P.2d 1202 cert. denied, cert. P.2d 2101, (1986); State (1983); Olin, L.Ed.2d State v. Beam, (1985); making comparison mind, we con- have and the result would have been not (1) of, sidered: the nature motive different had an error not been trial for, committed; (2) the crime committed, heinous judgment will conviction crime; (3) nature of the the nature and Wrenn, not be reversed. character of the defendant to determine Tisdel, State v. proportionate whether sentence was just. Upon review the entire record Gilbert, factors, respect with to these and in consid- We have considered the other issues eration of other cases which the death raised Pizzuto and find them to with- penalty imposed approved, con- we out merit. imposed clude that the sentences death Accordingly, we affirm the convictions disproportionate Pizzuto were not and sentences degree premeditat- for first unjust. felony ed murder and murder. The sen- in The crimes committed were this case robbery merges felony tence with mur- perpetrated upon intentional acts inno- two der and is vacated. campers. cent Pizzuto robbed them money possessions their and a few and BAKES, C.J., concurs. unmercifully then callously murdered They them. were found buried in shallow McDEVITT, J., concurs in Parts I-V graves with their hands and feet bound VIII-XIX, specially and concurs in brutally after Pizzuto had beaten their Parts VI-VII. Furthermore, heads awith hammer. JOHNSON, Justice, concurring character nature of these leads crimes concurring specially. to the conclusion that Pizzuto is an ex- tremely dangerous I opinion, except man who chose concur in the Court’s unsus- pecting prov- (Vic- victims and murdered specially part without that I concur as to VII Furthermore, Impact Presentencing ocation. were in murders tim Statement Re- in year following port), part committed less than a (Aggravating XIV Circum- stances), (Denial ten-year prison part Expert Pizzuto’s release from a XV Assist- Preparation term for criminal sexual assault. These ance in Re- Post-Conviction lief), (State’s part factors indicate that Pizzuto re- Failure has little XVI to Disclose spect Regarding Health) for the law or for lives of other Letter Pizzuto’s Mental beings. (Proportionality human v. XIX Lankford, part See State 113 and of Death 688, (1987). Sentence). Idaho 747 P.2d 710 A post denial of re conviction Impact Victim in Statement lief will not be on appeal disturbed where Report Presentence competent

there is substantial evidence supporting specially part denial. I as to on the Hinkley, State v. 93 concur VII 872, (1970). specif- Idaho 477 in P.2d 495 basis that trial court this case Where evidence stated had guilt proven ically defendant’s that it not considered the impact ordinarily produces imposing and is as in such moral victim statements certainty penalty. in an death This is similar to the state- unprejudiced conviction 391, Osborn, 881, Hokenson, (1976); (1982); 47 L.Ed.2d Idaho 648 P.2d State v. 99 State v. 96 203 405, 283, (1981); (1974); 102 Idaho v. 631 P.2d 187 State 527 P.2d 487 State v. Rodri Idaho

Needs, 883, (1979); 286, (1969); State 99 Idaho P.2d 130 guez, 591 93 P.2d Idaho 460 711 State v. 766, (1979). Lindquist, Gonzales, 152, v. (1968); 99 589 P.2d 101 Idaho 92 Idaho 438 P.2d 897 450, Koho, State v. Idaho P.2d 1004 91 423 capital cited decid cases above are cases 322, (1967); Clokey, State v. 83 Idaho 364 P.2d subsequent adoption ed of I.C. 19-2827. Snowden, (1961); 159 State v. 79 Idaho 313 foregoing to the we re addition cases also Owen, (1957); v. State capital proportional viewed earlier cases in our (1953) (considered only in terms of ity analysis disproportionality. and find no Gerdau, penalty imposed), committed and over 1161 crime State v. P.2d 531 Powers, point Shep on substantive law in State Idaho ruled State 537 herd, denied, cert. Paz, Also, making my pro- determination of in trial court State v. merits penalty (1990) I death cases 542,-, portionality, consider 798 P.2d Idaho impose not trial court did there did not which the impact statements the victim Smith, spe- penalty. E.g., death the court. In the absence of influence these, 792 P.2d such I would not statements as cific Enno, 119 807 P.2d error to be harmless. find the Aggravating Circumstances Justice, BISTLINE, part concurring dissenting part. my and specially part XIY. I concur view, of whether there is the discussion opinion, except majority’s I in the concur aggravating circum- duplication between discussed. as hereinafter unnecessary. that are found is stances are mitigating circumstances When (BISTLINE, J. dis- on review Standard weighed against aggravating each of senting). required by separately, as circumstances majority’s I from dissent statement 129, 153, Charboneau, 116 Idaho must that the defendant make an affirma- (1989),there is no reason showing penalty on a death tive error duplication about of some to be concerned Court, by statute, appeal. must re- This aggravating aspects of the circumstances cases, penalty if all death the view even found. appeal. wish That defendant does not to requires that we examine the record review Prepara- in Expert Denial of Assistance presentation by independently of the the of Relief tion Post-Conviction parties. 19-2827. I.C. § specially part I in the concur XV because Dr. Em- trial court ordered and received (BIST- I. other crimes Evidence of sentencing hearing, ery’s report the before LINE, dissenting). J. Emery Dr. Pizzuto called as a witness at other and acts Evidence of the crimes sentencing hearing, the and Pizzuto made by Pizzuto at some request any pri- allegedly committed no for further examination charged time before the crimes sentencing hearing. unspecified to If or the to mo- prove admissible were committed is request neurological had made a for a ex- intent, plan, tive, preparation, opportunity, sentencing hearing, the I amination before knowledge, identity, or absence of mistake it would an of believe have been abuse 404(b). accident, according to I.R.E. or granted request. discretion not to have However, opportunity or one of motive or Proportionality of the Death Sentence 404(b) must listed in also issues other trial, is prerequi- issue at the be an specially duty I part concur in XIX. Our of evidence of other to the admission site to death proportionality review of the evidence. or acts as substantive crimes 19-2827(e)(3). by sentence is created I.C. § argument to Here, is no sound be there making determination, In con- this I do not proba- that the support to the notion made I making independent sider that am an concerning evidence Pizzuto’s tive value of analysis as to whether a defendant should substantially prior was not alleged acts not, have been but sentenced death danger preju- outweighed by the of unfair only im- whether the sentence of death dice, jury. of the It cannot and confusion justified by posed by the court can trial any certainty that this error be said with in cases reference the sentence similar was harmless. by I.C. reviewed after 19-2827(c)(3) in 1977. became effective panel jury II. Late disclosure of making my propor- of determination (BISTLINE, dissenting). J. tionality, any I not consider sentences do questioning dire can amount voir by prior to No that were reviewed this Court investigate 19-2827(c)(3). up the lack of time make the effective date of I.C. § persons may outside of the courtroom judge interpret who terms of art —a so —would jurors. pro- (g)(5) sidestep Supreme become The federal model of allows Idaho to viding prospective jurors holding prior Maynard list of Cartwright, Court’s investigation jury panel trial for of the L.Ed.2d adopted (1988)(the should be this Court. aggravating circumstance in penalty death provid- an Oklahoma statute closing III. Prosecution’s argument imposition ing for the penalty of the death (BISTLINE, dissenting). J. heinous, especially if the murder was atro- or cruel was unconstitutionally cious held I agree part While with the result of this vague eighth violation of the amend- opinion, the majority ques- I must also ment). highlight many tion Court’s failure to personal opinions of the beliefs and uttered However, expressions this Court’s earlier prosecutor closing. All of these concerning the language (g)(5) as re- personal opinions improper. were Osborn, vealed which was released (BISTLINE, Photographs IV. J. dis- years few before or Maynard, Lankford senting). highly underlying philoso- are indicative of upholds majority the district court’s Osborn, phy. cited quoted is photographs depicting admission of these approval by with majority from to- pro brutal murders on the that such basis opinion, day’s adopted this Court Flor- understanding vided with the an understanding ida Court’s “es- prosecution’s essential element case heinous, pecially atrocious or cruel:” against the defendant. That ele essential meaning feel of such ‘[W]e However, ment atro atrociousness. knowledge, terms is a matter of common part ciousness is nowhere definition ordinary so that an man would have not murder, robbery, grand of or or theft. guess to at what was intended.’ fact, atrocity properly is a consideration Osborn, 418, 631 102 Idaho at P.2d at 200. trial, only sentencing phase for the of the previously upon I have commented our judge the when determines the sentence. adoption Enno, unthinking of the Florida 2515(g)(5). what I.C. State v. See § 19 - (g)(5), has to as (1991). Supreme Court done (g)(6). Court done well what this has with Aggravating XIV. circumstances repeating It here: bears (BISTLINE, concurring part, in J. dissent- punishment pro The cruel and unusual part). in ing the state hibitions of and federal consti part I concur in part and dissent in to require that dis tutions the sentencer’s section, my only this because view the imposing penalty the cretion death [be] 19-2515(g)(8) aggravating I.C. wholly circum- risk limited to the of § “minimiz[e] vague stance is not and overbroad. The arbitrary capricious May action.” challenged by other two circumstances Piz- Cartwright, 108 nard v. 486 zuto, (g)(5) (g)(6), vague are and over- 100 L.Ed.2d The S.Ct. broad. has held that the statu circumstances, tory aggravating such as (g)(5) ma- upheld Circumstance is the 19-2515, given must be those I.C. § jority Lankford, because limiting the is construction if state to the Court obligation its tai meet constitutional “to is judge stated that the and not the its in a that apply lor and law manner interpreter (g)(5). language the of the arbitrary capricious the inflic avoids provides for That circumstance the death penalty.” Godfrey tion of the death espe- penalty murder whenever was “[t]he 420, 428, Georgia, 446 U.S. heinous, cruel, cially atrocious or manifest- 1759, 1764, 64 L.Ed.2d exceptional According ing depravity.” 19-2515(g) provides: an Idaho Code majority, expert the the fact that Also, “limiting statutory definition following aggravat- the Osborn The are the (g)(5)” provides that circumstances, (1) the circumstance at least one ing “unnecessarily murder must be torturous beyond exist must be found to which however, Clearly, the this defi- victim.” a sentence of reasonable doubt before duplicative (g)(7) simply nition is imposed. can be death subjects circumstance which defendants for final death murder torture. In the (5) heinous, especially murder The degree “es- analysis, all first are murders cruel, manifesting excep- or atrocious heinous, cruel, atrocious mani- pecially or depravity. tional festing Nothing in exceptional depravity.” (6) By sur- the murder or circumstances interpretation the majority’s the restricts commission, the rounding its defendant which the is broad brush with subsection disregard exhibited utter human for drawn. life. circumstance, (g)(6) aggravating added.) regard (g)(5) to the (Emphasis the requires defendant exhibit circumstance, aggravating majority life,” for human suffers disregard “utter following limiting con- concludes Today majori- from infirmities. similar passes constitutional muster: struction “limiting” ty reaffirms the construction interpretation It is our that heinous enunciated in Osborn: shockingly extremely means wicked or phrase We instead that is conclude evil; outrageously that atrocious means meant reflective of circum- to be acts or vile; and, cruel wicked and means surrounding stances ex- crime which degree designed high pain to inflict a utmost, highest, hibit the callous to, enjoy- even with utter indifference life, i.e., disregard human the cold for of, suffering ment of others. What blooded, slayer. pitiless intended to be included are those (emphasis P.2d at crimes com- capital where actual Osborn, added) (quoting Idaho at capital felony mission was ac- 201). degree mur- 631 P.2d at What first companied by as such additional acts disregard “callous derer fails to show apart to set the crime norm from suppose I human life”? would capital pi- conscienceless or felonies-the who, prior delivering “pitiful” slayer, unnecessarily tiless crime which is tor- me, blow, the victim: “Excuse fatal tells turous to the victim. inconvenient, I me, pardon I know it’s but (quoting 774 P.2d at 322 your life.” must now take Osborn, 405, 418, Furthermore, (6) (g)(5) aggravat- (1981)) (emphasis original). duplicative. Every ing circumstances are limiting given The construction disregard “utter for murderer exhibits who (g)(5) aggravating circumstance Osborn a crime is “es- human life” commits today by majority, and reaffirmed is heinous, mani- atrocious or cruel pecially wholly guide insufficient to the sentencer’s Today, festing exceptional depravity.” in limiting application discretion of the however, Fain, majority State v. penalty death consistent with constitutional (1989), concludes beget What is mandates. Terms terms. factors describe two aggravating that the capital the “norm” of felonies? Who sets The “quite culpability.” kinds of different Indeed, degree this “norm”? first majority all states: killing an- murders involve the unlawful killer The cold-blooded particularly aforethought. malice other with What sets sadistically particu- or in a need act not particular apart from oth- murder larly in order outrageous —not fashion disregard er crimes—but from the “norm” of killing with utter commit a first dispute hus- crime degree murder? In who commits a a domestic human One life. way punished gun. especially band kills wife Do all such in an heinous with a crime, not so, it for the heinousness murders now execution? If warrant disregard for utter because he acted with hardly is limited. can be said discretion life, although may expected human it be heinous, especially that most atrocious or Josephine Baca, Mike BACA and Father cruel murders will have been committed Baca, personal and Mother of Allen M. disregard with utter for human life. ly personal represent and as heirs and Fain, 116 Idaho at 774 P.2d at 269 Baca, atives of the estate of Allen M. added). (emphasis deceased; Mary Pecos, Y. Mother of Thus, according to the majority, a Anthony Pecos, personally M. and as ” “cold blooded killer need not act in an personal representative heir and “outrageous fashion” to commit a mur- Anthony Pecos, deceased, estate of M. der disregard “with utter for human grandmother general and also as life.” I cannot degree fathom a first guardian Toya, of Brennan minor child murder which is not carried out an Pecos; Anthony Waquie, M. Ethel B. “outrageous Every premedi- fashion.” Waquie, personal widow of Andrew V. outrageous. tated murder is ly personal representa and as heir and (6) (g)(5) subsections are noth- Waquie, tive of the estate of Andrew V. ing aggravating more than kitchen sink deceased, general and as mother and circumstances which enable the state to guardian Waquie, of Vicenti minor every degree make first murderer not Waquie; child of Andrew V. Veronica just for, recipi- candidate but an actual Waquie, Benjamin Mother of P. Wa of, ent the harshest and most final of all quie, personally per and as heir and penalties. result, criminal As a the man- representative date to death-eligible narrow the class of sonal of the estate of murders is abandoned. Benjamin deceased; Waquie, P. Hilario Armijo; Timothy Armijo; W. Vincent Charboneau, 171- Chavez; Chinana; (1989) (footnotes David Victor China 341-42 na; omitted). Gachupin; Gachupin; The considerations I Ivan discussed Michael equal apply Charboneau with force to this Magdalena, Magdalena; Dennis Frank case. Jr.; Toledo; Tosa; Roberta P. Nathaniel Jr., Toya, Plaintiffs-Appel and Allen conclusion, abundantly it has become lants, nothing gained clear that has been or will gained by maintaining penal- that death ty sentencing should be a decision left to the collective conscience of a com- Idaho, Army STATE of The Idaho Re

prised peers. of the defendant’s The time Guard, serve National B. Steven forget forgo has come to the distinc- Herron, and Thomas Defen McCord F. aggravating tion that circumstances are dants-Respondents. properly elements to be considered at sen- tencing, in deciding but not the issue of No. 18256.

guilt Hopefully, day or innocence. one an Idaho, indignant informed and electorate will re- Boise, December 1990 Term. quire legislature that it rethink and rewrite the put scheme so as to March 1991. it back where it was before an innovative deputy attorney general brought about the Rehearing May 1991. Denied change taking respon- drastic the awesome sibility citizenry, out of the hands of the placing judge,

and instead it on a district

making Idaho and or three other states two

unique regard. in that

Case Details

Case Name: State v. Pizzuto

Court Name: Idaho Supreme Court

Date Published: Jan 15, 1991

Citation: 810 P.2d 680

Docket Number: 16489, 17534

Court Abbreviation: Idaho