State v. Romero
775 P.2d 1233
Idaho
1989
Check Treatment

*1 year old examined Dr. Jambura 2V2 old her 5 girl, he had also examined of sexual evidence

sister uncovered in- girl. He also older

abuse sister’s statement of the older

formed personnel ex- and medical

law enforcement her had been how she and sister

plaining He Wright

sexually abused and Giles. had younger daughter

also knew that away parents taken from her

just been custody. protective into To automati-

put

cally disqualify an interviewer because child preconceived

has “a idea what will, disclosing” probability, in all

should be all nearly the use of statements

eliminate doctors, by young children to

made medical That

psychologists or social workers. required by the con- certainly

sult of the sixth amendment

frontation clause Constitution, accord- the United States of the States

ing to the decisions United Roberts, 448 U.S. v. Ohio Supreme Court. (1980);

56, 100 S.Ct. 65 L.Ed.2d 597 Green, 149, 90 399 U.S. S.Ct. California (1970). it cer- 26 L.Ed.2d 489 And evidentiary

tainly required is not under the Idaho, of the our recent

laws State as Giles, cases have held. Hester, (1989); 772 P.2d 191 760 P.2d 17 judgment affirm and sen- the same district opinion dealing set out in our

reasons Giles, the co-defendant Giles

supra. Idaho, Plaintiff-Respondent,

STATE ROMERO,

Miguel Acuna

Defendant-Appellant.

No. 17706.

Supreme of Idaho. 16, 1989.

June

BISTLINE, Justice. Court,

By order of this we decided to review the decision of the Court of The Court of summarized the facts as follows: Miguel Acuna Romero was convicted voluntary manslaughter following jury trial. The district court sentenced period him to a determinate of fifteen years in custody of the Board of Correction. appropriate.

A of the facts is review 29, 1986, shortly On October after 11:00 p.m., Thompson crossing Robert was Pocatello, parking lot Idaho. Romero co-defendant, Griffith, Jerry and a youths several other nearby. were Thompson wearing a Halloween gesture passed mask and made a as he group. into a Griffith entered con- Thompson. frontation with Romero soon joined Griffith in this direct confronta- During fight, tion. the course of this Thompson verbally Griffith baited continued, fight then struck him. As the Thompson Thereafter, struck Romero. Thompson attempted to retreat but press Romero and Griffith continued to Eventually the attack. Romero and Grif- fith, concert, acting in Thomp- knocked on, ground. point son to the From that both Romero Griffith delivered mul- tiple powerful shoe and boot blows to Thompson’s head. These blows were of Thompson’s sufficient force to cause death. Romero, 114 Idaho at Tranmer, Pocatello, Jarman & for defen- charge of Romero was tried on the

dant-appellant. argued. Ronald J. Jarman degree requiring prosecution murder Jones, Gen., Thomas, prove premeditated kill- Atty. Lynn Jim E. a “deliberate and However, Boise, ing.” (argued), plaintiff-re- See I.C. 18-4004.1 after Sol. Gen. § guilty spondent. day jury a five trial the returned a physically voluntary manslaughter party present to be attacked. de- She 1. The crime of Thompson killing "upon removed his Hal- fined as an unlawful a sudden testified that after face, quarrel passion.” in the I.C. 18-4006. loween mask he struck Romero causing or heat badly. testimony reject prosecutor's jury’s Romero to bleed decision to witnesses, Essick, degree Scott murder conviction of the other state Elliot, Glenda demand for a first Walter, supports Thompson’s resulted and Michelle Benson’s and to conclude that death Further, according emergency testimony. quarrel passion due from a sudden or heat of records, eye hospital testimony Romero’s left of the state’s witness Erika room fight. hours after the that Romero was the first still swollen shut eleven Benson. She stated Romero,2 peals, nevertheless raised verdict on the lesser included offense of but voluntary manslaughter. failure to utilize a PSR. is the trial court’s requires the sentence be That failure Romero was summoned for *3 for resen- and the cause remanded vacated only day after the trial. Prior one business required has tencing after any argument by Romero’s defense investigation presentence obtained a counsel, matter, prosecutor or the for that report. exhibiting an made- judge, the trial mind, fixed sentence

up announced that a jury’s a determination of After Furthermore, imposed. notwith- would be it is essential court receive guilt, request presen- standing a defense for a adequate all available investigation report, and a defense tence defendant, imposing a sentence objection sentencing, to the lack thereof at before presen- court refused to order a hopefully the trial be commensurate with which will (PSR). investigation Subse- has been the crime for which the defendant quently, Romero was sentenced to a fixed Judge’s Sentencing Idaho convicted. term, year fifteen the maximum term of Manual, Nevertheless, the trial 5.1-1.3 § by confinement authorized I.C. flatly and use a refused order 18-4007(1). § PSR, notwithstanding timely objection a by counsel. Fundamental appeal, made Romero’s dispositive

The issue on this wholly Ap- ly, unaddressed is used to assist the “court Court testimony The of the witnesses makes it clear IX. presentence investigation that Romero went to the side of the small Grif- A appeared larger Thompson every fith when it that the case incarceration for be made in where might engage fight. possible disposition, Griffith in a Court year The is one or more a old, apparently important Appeals years did not see it is less than 21 where the defendant who struck the first blow. That ascertain or is a where the defendant first offender. fight, Probation, 2.1(b); also the start of the which Relating § ABA Standards Manual, account did not establish. The shoes Sentencing Judge’s § 5.2-1. opinion mentioned in its were tennis shoes Id. at 9-10. Romero; worn the boots were those of Grif- also states: The same brief fith. Judge Hargraves Again to order a declined objection presentence report over the of de- opening 2. Defendant’s brief filed with the Court and in the face of the fol- fendant’s counsel Judge’s states: lowing guidance from the Idaho Sen- tencing § Manual at 5.2-12: Judge Hargraves uncharacteristically an- primary purpose The nounced his intention to fix defendant’s port individualizing is to assist the court very hearing, sentence at the outset rational sentence for the defendant. As one pleas even before of defendant’s authority has stated: (Tr., p. counsel for a less harsh result. single instrument in our hands so neat- 15-16) ‘No ly was conducted with- philoso- typifies the modern correctional presentence investiga- out the benefit of report. phy as does the Its objection tion over the torney. Mr. Romero’s at- only being depict reason for is to the inti- dynamics particular individual App. points mate one Brief at 2. Three of the nine dispose the court to offender and to enable authorities cited in the brief concern the lack of plan that is of his case with tailor-made the PSR: intent, without such corrective in whereas VI. knowledge disposition only puni- guilt After the determination of it is essen- can KEVE, adequate tial that the court receive informa- tive.’ Character Professional handing Report, tion about the defendant before the Presentence role, Probation and Pa- eds., 1970) Sentencing (R. down the sentence. Carter & L. Wilkins 81 Manual, added). (emphasis § 5.1-1. VII. Id. at 16. Although the trial need not order a 5.1, Manual, Judge’s Sentencing every 3. The Idaho presentence investigation report guilt provides: it is ‘‘Afterthe determination if the trial court does not re- criminal quire presentence investigation, adequate that the court receive infor- essential the record handing defendant before affirmatively why mation about show such an investi- must Individualizing sentences is gation down the sentence. was not ordered. Rule Idaho Crim- impossible without such information.” Rules. inal individualizing sentence for rational added). (emphasis defendant.” Id. at 5.52 record show must affirma- infor- Simply put, compelling need for tively why such an

mation about defendant at not ordered. disregarded. arbitrarily More- cannot be added). in- (Emphasis This rule has been over, made in a PSR should be terpreted to mean that a PSR is not where incarceration for one or more where ordered, alternatively es- must disposition, possible the defendant why. tablish valid reason State Gold- old, years than where the less man, defendant is a first offender. Id. at 5.2-A. *4 Thus, (Ct.App.1984). very it is much offender, year a 20 old first order that the record be examined to ascer- to a fixed 15 term. Under sentenced reasoning by tain what trial re- court considerations, have all three a PSR should fused to a order PSR. been ordered. only The trial court stated this: pre- to The trial court’s failure order a probation not “since is a viable alternative presentence re- sentence and unnecessary it is deemed to port contravenes the Idaho Sen- presentence investigation a require and re ABA Manual standards. tencing reasoning is port wholly thereof.” This fundamentally, More the court’s failure Only sentencing insufficient. mandatory Idaho Criminal clearly violates after a court has is the court considered PSR precedent. and case Idaho Criminal Rules an positioned to make informed decision provides: Rule 32 viability regarding probation. By of procedures governing Standards if way comparison, defendant is con a presentence investigations re- degree subject victed murder —and ports.— following standards prob in all penalty probation to the death procedures presentence in- govern shall — ability not is likewise a “viable alterna vestigations reports in Idaho ' However, the failure to consider a tive.” courts: in such a circumstance would without PSR (a) presentence investigations When question constitute reversible error. See need judge are to be ordered. The trial Thus, we I.C.R. 33.1. conclude that presentence investigation a not to a PSR trial court’s refusal order on the report every case. The order- criminal is probation not a viable alterna ing basis of such a is within the discre- not reason respect felony tion tive is a valid under of the court. With to convictions, not the trial court does 32.4 if

4. The court’s dispensing recognize presentence report that a with a re- We is only mandatory in the a port explained contempo- event that trial court prosecutor’s is (I.C. considering probation is a defendant for raneous statement: 20-220, 467, Rolfe, v. Idaho 444 § State 92 Honor, record, point For the Your McCollum, (1968); P.2d 428 77 Idaho Idaho State versus Whitman at 96 489, (1959)). We have 295 P.2d 259 held at 146 in 489 and State versus Gowin 97 Idaho necessarily is not a support to order a Court’s decision not sentencing quirement for the convicted pre-sentence investigation in this case when 489, Whitman, felon. Idaho 531 State 96 probation op- the Court does consider an not P.2d 579 tion. however, language, read This must be in con- Tr., prosecutor, through no fault Indeed, text. the failure to order a PSR when own, inadvertently misleading the court being probation the defendant is considered Subsequent as law. to the state per se error. I.C. 20-220. The converse is is pros- and Gowin decisions cited Whitman probation Simply an not true. because not 1, 1976, ecutor, January Idaho effective as of option particular does not mean a provide of Criminal Procedure that if Rules sentencing may dispense the PSR. As judge ordered, the record establish PSR is not must infra, fully may trial discussed more forego court why clearly superseded (a) it was not. The Rules only PSR where affirma- therefor, rule Whitman and Gowin. tively case law establishes a valid reason 146, 147, Gowin, (b) indepen- P.2d In State v. 97 Idaho 540 there is sufficient information from 808, (1975), sentencing opinion dent enable the court to 809 the Court’s stated: sources to

395 Furthermore, today does not un Our decision precedent mandates provides which that a prior case law order a settle State sentencing. need ordered in case. On prior to not be Goldman, sentencing may court 687 P.2d 599 rare occasions (Ct.App.1984), sufficient before the trial court refused have appro an update prepared properly to a decision as to order a a PSR come Ap- example, For priate several earlier. The Court of sentence. months Powers, (1969), sentence, holding peals vacated Goldman’s uti though objected had not the district at that even Goldman the absence an PSR, in the de to the lack of a lized the information contained noncompliance objection did excuse only days nine earlier fendant’s PSR used “The with Rule 32: rule there to another unrelated offense, drug 687 P.2d at we concluded: “Absent Idaho at followed.” Toohill, change quoting showing defen some material day (Ct.App.1982) the nine inter dant’s circumstances conversely, added). Romero, (emphasis im it was not error reuse same *5 616, case, then, at at report.” raise issue. This is even 100 Idaho 603 P.2d that bar, contrast, Goldman. Strange- by In at the compelling more than 571.6 the case Appeals sentencing ly, apply the did not nor record shows that the court had Court cite its Goldman decision of which we spe- independent to the no information vitiate cifically a approval.5 note our need for PSR.7 appropriate Hargraves already fashion Roderick, State v. “know" that "he was in an sentence. In to 82, (1975), possession pertinent P.2d 267 for information" without 97 540 of all grounds example, the lack of a was not for and the benefit of a sentencing judge report. reversal because the had ade- quate Judge compan- him to an By information before fashion Transtrum in contrast. sentence, 95, appropriate namely, psychiatric Griffith, 114Idaho P.2d ion State 753 reports. (1988), evaluation 831 from it much of the information and obtained 5. Justice Bakes in dissent makes the bold—and guided sentencing decision. The re- which unsupported Ap- "the that —statement long history of port showed Griffith "had a that peals acknowledged trial in this that the behavior; incorrigible had antisocial Griffith judge dispensed with the PSR in the exercise youth previously committed to a correc- been 397, judicial 775 discretion.” Post at sound facility cooperate in a had refused to tion Appeals P.2d at 1239. The Court of decision counseling program; he has a bad rehabilitation begins page on 92 of 114 of the Idaho volume authority; temper to unable deal with (and Reports page of volume of the 828 753 user; primarily drug he has home and was a no (2d)). Reporter Pacific reader The interested in the streets. While incarcerated await- lived readily perceive Appeals will that matter, ing his trial the instant Griffith exhib- in opinion makes no mention of a PSR and did not behavior and was involved ited antisocial any pertaining enter into discussion 96, fights jail." at the 114 Idaho at 753 P.2d at dispensing require- court’s with discretion 832. ment of a PSR. Moreover, good conscience over- cannot we gain insight we which look the additional tragic 6. Both Power’s offenses were committed in by considering the remarks affair District, Judicial the first in Clear- Second sentencing attorney prosecuting at Griffith’s 1976, 24, County water on June and the second addressing Judge hearing. Transtrum con- In 17, County in Nez December 1976. Perce prosecutor cerning complicity, Griffith's judge. by imposed were The sentences same attributed to that of the witnesses stated one Thompson, Jerry makes the statement threat to Robert 7. Justice Bakes dissent Griffith the messing my sentencing Judge you going Har- with that graves ‘Tm to kill ”[a]t knew, Sentencing, pursuant p. his in camera discus- of Griffith friend." Tr. counsel, pos- prosecu- complicity, he was Speaking sions with that of Romero’s stated, say pertinent thing you that a information and can session of all tor "The one presentence report any forcibly argued would not shed addition- Miguel it Romero and was any light expose prov- Post at new evidence." (emphasis jury, al or element of he had some was that added). incident, Migu- 1240 part P.2d 775 of this in the initial ocation any such Thompson record does not contain discussion. as Bob struck Bob el Romero was Furthermore, Thompson He had swollen himself. cor- defended even were Justice Bakes rect, bleeding.” Judge impossible eye and was have been 396 Wolfe, 382, 384, 730 judges

Trial are vested with the 99 Idaho Moore, weighty 359, 363, State responsibility (1978); those 78 Idaho individuals unable to conduct themselves 304 1103 Without P.2d within bounds of our criminal laws. such provided crucial goals pun there are four criminal PSR, impossible it is for a sources as ishment: deci- to make an informed (1) protection society, necessary promote goals. sion these four (2) deterrence of the individual and the years ago This Court over 30 stated public generally, recognizes “the previous law that the char- (3) rehabilitation, possibility of acter, bad, good or of one convicted (4) punishment wrong- or retribution for fixing punishment.” considered doing. Weise, 404, 411, 75 P.2d Toohill, (1954). Here, Romero sen- (Ct.App.1982); tenced who did not follow previous driving Whereas Romero had no criminal level at which ve- alcohol a motor record, prosecuting prohibited.” attorney Judge hicle under Idaho law is advised did, however, correctly The Court of presen- Transtrum as to even more in Griffith’s that, although drinking note Romero "had been tence than the Court of set out in prolonged period prior for a homicide, of time record, opinion, got long its "He’s criminal talking girl Romero had been going counting down and the various citations began when the confrontation between Griffith charges just presen- are identified Thompson. Romero then chose to become nearly twenty there are fight involved in the the brutal result.” Many felony type those. of which are offenses. *6 . 94, This, course, Idaho at 753 P.2d at 830 of According pre-sentence investigation to the prosecuting attorney’s dovetails with the state admits to others. The institutions that have Griffith, sentencing ments at the of which were explosive, with him dealt used terms such as Thompson’s to the effect that dealt initial blow resistive, hostile, impulsive, disruptive, argu- to fight caused Romero Romero’s involvement and mentive defiant to him. We can describe he, Romero, aggressor, was not the more, deadly____ you one add When look at apparently stepped but more forward to defend pre-sentence investigation the it calls for his Griffith, companion, bring perhaps his and occurred, version of what what does he do. He any fight. of is about an avoidance The record essentially responsibility dissolves himself of any propensity previous fighting silent as to for there, says really it was and Jose that was out part of on the which is all the more Miguel and Jose were the ones that were in- excusing noncompliance not the reason for rule with beating Thomp- volved the death of Robert appel requiring reports. As previously. 4, He didn’t page transcript son. make that statement citing lant’s brief at at 334, pages "only Police records indicated he asserted never that asserts after Miguel period waning time did ve as defense. In the moments before of Romero exit the entering hicle Mr. sentencing he was walk over to his then he tries to relieve himself of Thompson stop Mr. Honor, Griffith and in an effort to responsibility. Your he is threat to (Tr., 10, brewing. p. that the trouble LL. society. younger living person As a in his home 15-17, Tr., 334, 17-18, Tr., 230, p. p. LL. LL. investigative report fought the that he indicates brief, 15, 13-15).” Appellant’s page at adds also with his brothers. When he went school he Hargraves Judge gave that no consideration fought with his even classmates. The five recommendations set forth in the Idaho tells one incident where he was involved Sentencing Manual: stealing stealing some or at of least accused good con- A. Previous character should be And, something. he chased those that ac- after (Section fixing punishment. sidered in 2.2-1 caught him cused and when he them he Manual.) knocked them them in down and kicked the penalized B. Defendant should not be for face.” obtaining acquittal charge an mur- on the of judge, We also note that the in addi- district (Section 4.2-1). jury der trial. at obtaining to not as to tion the information adequate C. The court should have infor- previous history, not Romero’s take into the mation about ing. defendant before sentenc- to at least fact that Mr. account some extent the (Section Manual.) 5.1-1 of the Thompson drinking, Migu- also had had been as D. Presentence should be ordered certain, Romero. To be not an excuse el that is every on case where the defendant is a homicide, the but it is a factor. It is also a (Section age OR offender under the of 21. given any opinion Manual.) not the factor mention in of the 5.2-1 of sentence, nature, Appeal. only Court of counsel in punitive the Yet Romero’s E. A brief, (Section page pointed Thomp- generally at Mr. out that not advised. the 5.1-12 of .10, Manual). “had a blood son alcohol concentration respect to With the court. precedent, or case cretion mandates of court rules convictions, if trial court does felony the thereby of the informa- depriving himself fashioning require hand not tion which be at affirm- Accordingly, the record must show appropriate an sentence. atively as it an judgment why court insofar such district added.) vacated, (Emphasis cause imposes not ordered. sentence resentencing. opinion remanded for Thus, ordering presentence investi- of a Appeals Court is vacated. case, mandatory every as gation is not infers, is within the opinion Court’s but JOHNSON, trial If the court court. JJ. discretion HUNTLEY report in a does not concur. case, only show felony record need Justice, BAKES, dissenting: Chief affirmatively not ordered.9 why such was Although majority correctly explained applied acknowl- 32 was further edges “prior provides Goldman, that case law ... Goldman, need not ordered (Ct.App.1984). P.2d 599

case,” sentencing may Appeals and that “the case to the remanded the Court it to court, have information before holding sufficient the trial court trial appro- properly come to a decision as dispensed the PSR should not have sentence,” at priate ante making showing on an affirmative without then errs when it concludes doing it so. the record of a valid reason for contrast, bar, by the case at made af- In that no “[i]n record that the court had showing shows of his rea- firmative independent no vitiate dispensing with the PSR. Had he sons however, so, need Ante for a PSR.” done Court Assuming, arguendo, that Rome- later set the recognized that it could not issue,81 hold ro has raised the As the sentence aside. for the

that was error stated: *7 particu- judge not order PSR under the to As turn first to Rule 32. noted We lar of this facts case. above, us no this would afford basis rule judge a sentence if the trial to set aside 32, pertinent part, in Idaho Criminal Rule in dispensed report with the had reads as follows: judicial discretion and sound exercise procedures Rule 32. Standards and why showed he affirmatively the record governing presentence investigations so. reports. following standards —The Idaho at 687 P.2d procedures govern shall in investigations reports the Idaho contrast, way By courts: acknowledged the trial case (a) dispensed with the in exer- presentence investigations judge are When discretion, and the judicial not of sound judge to be ordered. The trial need cise affirmatively re- before this Court presentence investigation that he did so because shows port every criminal case. The order- light have no favor- dis- would shed additional ing report is within the such where for one by appellant as a incarceration Although 8. not denominated presen- appeal, possible disposition, absence of a where formal issue on or more is (PSR) appellant’s old, years discussed in tence is less than 21 the defendant brief. offender. the defendant a first suggested probation standards are not The ABA Judge’s Sentencing 5.2§ Manual binding Court and the inclusion of on this reads, part, (1986) seems to in conflict Sentencing suggestion in the Idaho ABA as follows: authority superior override the Manual does not Relating suggested by Standards It is the ABA Rules, specifically here of the Idaho Criminal Probation, 2.1(b), presen- to Section I.C.R. 32. be made tence fact, ing an exercise of discretion is re- Romero. rather than bolster- When status, ing probably appeal, appellate Romero’s a PSR would on viewed have diminished it. At inquiry. a multi-tiered The se- conducts very thing Judge Har- (1) quence inquiry is whether the graves go the record as follows: did was rightly perceived the issue as lower court proceed discretion; (2) the actual sen-

Before we with whether the court one of tencing, going couple make a I’m to such acted within the outer boundaries of investiga- pre-sentence A observations. consistently any legal discretion and with case, and not ordered in this tion was choices; specific applicable standards to counsel. that has been discussed with (3) whether the court reached its appear on the record But I want it to decision an exercise of reason. the testimo- that the Court heard all of Beets, Northwest, Inc., Associates ny;.... (Ct.App. give primary purpose of a PSR is to 1987). All three tiers are met in the in- sentencing judge adequate information First, judge rightly stant case. the trial handing the defendant before down ordering perceived that the of a PSR was Judge’s Sentencing the sentence. and, choosing not within his discretion (1986). Although Manual 5.1 the in cam- one, order he acted within the bounds of Judge Hargraves era discussions between Second, the trial act- his discretion. recorded, at the hear- and counsel were consistently legal set ed with the standards ing defense counsel ex- before this Court by showing affirmatively out Judge Hargraves plained why stated ordered on the record that the PSR was not testimony and that he had heard all of the already possessed perti- all the because presentence report had been the lack regarding nent information Romero. And sentencing. prior discussed with counsel third, judge reached his decision the trial Court, argument At oral before this when reason, reasoning exercise of really asked if he wanted a possession being that he was answered, “Frank- defense counsel necessary sen- pertinent all mitigation I am ly, the best evidence that Romero and that a going put my on I did with to be able port any light or would not shed additional client he took the stand... I would when mitigating expose any new evidence. urge really not much more can be that ... judge properly Where the trial identifies record____” At the sen- fleshed out facts, applies the law and the law knew, tencing hearing Judge Hargraves judge’s then the discretion has not pursuant to his camera discussions *8 prongs abused. Both I.C.R. been counsel, possession in that he was judge met—the trial did analysis have been pre- pertinent of all information and that a judge not abuse his discretion and the trial any sentence would not shed addi- showing affirmatively went on the record light expose any mitigating tional new Accordingly, why a was not ordered. by defense evidence. This fact was echoed was correct affirm- the Court hearing counsel at the himself to order a ing judge’s the trial decision not said, recognize pre-sen- when he “I that a Goldman, As stated in in this case. enlighten really wouldn’t us no rule basis [I.C.R. 32] afford[s] “[T]his certainly happened much more about what the trial to set aside a sentence [where] Accordingly, compli- this incident.” dispensed in the judge ... Goldman, ance with 32 and judicial discretion and sound exercise of (Ct.App.1984), 687 P.2d 599 why he did affirmatively show[s] sentencing hearing Judge Hargraves at the 210, 687 P.2d at 600. so.” 107 Idaho at and affirm- immediately went on the record discretion, the atively explained why, in his judge if for the trial Even it was error case. PSR was not ordered this (which in this case it not to order a PSR above), not, as has been established not was record the trial On this coun- error because defense was harmless his discretion. abuse admitted, hearing sel at the before this 775 P.2d 1241 Court, get Idaho, that he was able to all of his Plaintiff-Respondent, STATE of mitigating during available evidence in above, trial. As noted defense counsel told CAHOON, Leroy Earl Court, “Frankly, mitigating this the best Defendant-Appellant. going put I evidence that am to be able to I my on did with stand____ client when he took the No. 17324. urge really I would ... Supreme Court of Idaho. can

much more be fleshed out record____” Further, earlier in the hear- July stated, ing defense counsel “A remand suggested would not shed as I ... Appeals, bring

Court of I believe it would light.”

lot more heat and little additional short, get defense counsel was able to mitigating during

all the evidence in and, fact, sentencing hearing,

trial and

he was concerned that a PSR or a remand hurt, resentencing rather than

help, Again defendant Romero. Court, before this defense counsel

stated, remand, “I am concerned that on likely aggravation/miti-

what would be an

gation hearing, that the populari- incredible

ty of the any victim would override scruti- circumstance____ ny of Mr. Romero’s am concerned ... could set [a remand] back____” Thus,

him if even the lack of a error,

PSR was it was harmless error un-

der the facts of this case.

The trial court did ordering not err in not report. Neither did the

Court of err its review of the

other issues raised appeal Romero in his

before that tribunal. State (Ct.App.1988). Ac-

cordingly, I would affirm judgment

the district court in entirety. its Rude, d’Alene, Idaho,

Dan J. Coeur defendant-appellant. SHEPARD, J.,* concurs. *9 Jones, Atty. Lynn

Jim Gen. and E. Thom- as, (argued), Sol. Gen. plaintiff-respon- dent.

HUNTLEY, Justice. early morning August 10, hours of .In 1986, police stopped officers the Cahoons’ car apparently they because suspi- were cious driving that Mrs. Cahoon was under stop, the influence. After the Mr. Cahoon *SHEPARD, J., participated fully opinion prior sat and in the decision and to his death.