State v. Scroggins

716 P.2d 1152 Idaho, Plaintiff-Respondent,

STATE SCROGGINS,

Michael Shawn

Defendant-Appellant. 15457.

No.

Supreme of Idaho.

Dec. 1985. Rehearing

On Denial of Petition for

April 1986. appeals his death sen-

Scroggins also constitutionality of challenging the tence sentencing procedure and Idaho’s death findings in contending that the trial court’s penalty errone- support of the death maintains that the trial ous. He further imposed penalty the death an arbi- court trary capricious and manner and imposed dispro- sentence was excessive and portionate.

I. OF THE FACTS STATEMENT charged by In- Michael stood following crimes: formation of the COUNT III That MICHAEL SHAWN SCROGGINS day July, of 1983 in on or about 8th County Canyon of Ida- of and State ho, being, then and there did then and White, Bishop, Kenneth F. and Van G. intentionally, wilfully, knowingly, there Nampa, defendant-appellant. for feloniously unlawfully, and with malice Jones, Atty. Lynn Jim Gen. and E. Thom- premeditation, kill aforethought and as, Gen., Boise, Deputy Atty. plain- for the being, human to wit: Mondi Jeanine tiff-respondent. Lenten, causing the by then and there to be

said Mondi Jeanine Lenten HUNTLEY, drowned, wounding thereby mortally Justice. Lenten, said Mondi Jeanine from which Scroggins appeals Michael Shawn from a said Mondi Lenten died wounds Jeanine first-degree conviction of murder at- day July, on or about the 8th tempted rape thirteen-year-old Mondi Ida- County Canyon and State of Lenten. was sentenced to death ho. degree for first murder and received a contrary All which is to Idaho Code years attempt- fixed sentence of ten for the 18-4001, 18-4003(a), and 18- Sections rape ed to run concurrent with power, peace and against 4004 and co-defendant, sentence. Albert dignity the State of Idaho. Beam, was convicted of first-degree murder rape and was sentenced to death for IV COUNT year the murder and to a fixed 30 term for rape. Beam, 109 Idaho State That MICHAEL SHAWN SCROGGINS (1985), 710 P.2d 526 this Court affirmed day July, the 8th 1983 in on or about conviction and sentence. Beam's County Canyon and State of Ida- ho, Scroggins appeals arguing being, did then and his conviction then and there using knowingly, intentionally, wilfully, that the district court erred in two there separate juries, unlawfully, feloniously, forcibly one for one Beam, against a simultaneous trial. He also the consent of Mondi Jeanine Lenten, improperly claims that the trial court ad- not the wife of said defendant exhibits, intercourse accomplish mitted into evidence certain state an act of sexual erroneously grant prevented refused to a new trial with said female and she based new evidence and failed to resistance threats of immediate from harm, properly jury. accompanied great bodily instruct apparent power ly dangerous of execution on felony, case, which in this part of attempted rape. the said defendant. alleged Scrog- Information also DID II. THE TRIAL COURT DEPRIVE gins, wilfully, knowingly, “did intentional- SCROGGINS OF DUE PROCESS BY ly, unlawfully feloniously commit those JOINTLY TRYING HIM WITH HIS charged” acts in Counts III and IV “of the CO-DEFENDANT AND BY USING through Information on file herein the SEPARATE IN JURIES SITTING carrying, displaying, using, threatening or THE SAME COURTROOM? attempting deadly to use a firearm or other jury Beam testified before his own weapon, to wit: a knife.” and also Scroggins’ jury. testified before Scroggins’ co-defendant Beam took the Scroggins jury testified before his own stand as a state witness and testified that only testify and did jury. before Beam’s Scroggins raped had the victim and that Scroggins argues joint proce trial victim, he, Scroggins raped after had the employed dure effectively here denied him Beam, raped her. Beam also testified process particularly due of in light law of Scroggins took the victim to a creek testimony the of one Sandra Wahlen. began pushing there her head under Wahlen, fiance, Beam’s took the stand and Beam, According Scroggins water. to then began testify as to statements made to slit the victim’s throat. Beam claimed that Scroggins’ attorney request her Beam. he, Beam, because could not stand the Scroggins’ jury ed that be excused from blood, sight pushed of he alone her head during testimony the courtroom Wahlen’s

under water until she was drowned. prosecutor’s might questions because the elicit answers which would violate the Bru Scroggins also testified at his own trial. similarly object ton rule. Beam’s counsel He acknowledged accompanied that he had objection The ed. was sustained as to Beam and the victim to the creek and that Scroggins but was overruled as to Beam. point, at one he had handcuffed her. He Scroggins’ The trial court then removed the conceded that the knife used to cut her pursued and the State direct examina belonged throat to him but said that he did jury only. tion of Wahlen before the Beam not cut her. He admitted that he was evening Wahlen testified that on the of the present vicinity raped in the when Beam her, murder, Beam told “I think I killed victim, the but said that he did not observe added). Scrog- somebody.” (Emphasis he, Scroggins, the act. He testified that testimony gins’ attorney considered that begun to mount the victim but had not inculpatory exculpatory as to Beam but proceeded to have intercourse with her. Therefore, Scroggins’ Scroggins. at morning The after the crimes were commit- torney requested portion of Wah police ted went the station Scrog- testimony len’s be read back reported Although them. the officers grant gins’ jury. The trial court did not Scroggins’ story, did not at first he believe request permitted instead the but him convinced them to believe and took again state to call Wahlen to the stand and them to the scene of the crime. testify Scroggin’s jury. before the When judge As the noted at the time of sen- testimony, she resumed Wahlen stated that verdict, tencing, Scroggins’ jury, by the its her, “I Beam had told think we killed some testimony. Scrog- did not believe Beam’s was, course, body.” in testimony This gins’ jury found that did not use culpatory Scroggins. both Beam knife, rape did he not commit testimony insists that Wahlen’s guilty attempted rape, he violated the rule announced Bruton v. directly States, did not commit the crime of murder 88 S.Ct. United 391 U.S. (1968). Bruton, but rather aided and the commis- in a abetted 20 L.Ed.2d 476 felony-murder, killing joint petitioner sion of a commit- trial and his accom of the accom- during perpetration plice, prosecutor ted the of an inherent- the introduced the ulating plice’s through into evidence conclusions. When the confession the medical postal inspector. photographs, state to admit testimony of a The ac- moved however, Scroggins' objected, complice, testify. claiming did not The counsel highly prejudicial explicitly peti- photographs confession incriminated claiming designed jury. inflame the With objected, tioner. a denial of He regard Donndeling- Dr. photographs, The district cautioned confrontation. court following: testimony er’s established jury that the confession admissible (1) accomplice. depicted photograph Exhibit against the Court chin; (2) certiorari, Appeals wound victim’s Exhib- affirmed. On the Su- beneath the preme close-up It it was of the left side reversed. found a denial of wound; (3) close-up notwithstanding 66 was a right of confrontation Exhibit neck; cautionary jury upper part court’s instruction. wound under the trial (4)Exhibit case, close-up present accomplice, In the since the was another Beam, right prosecutor’s Albert in fact testified side of the wound. trial, questions Donndelinger present. situation was not for Dr. were not Bruton Bruton, petitioner photo- In the based on of the unable to his observations accomplice graphs confront his because the accom- but of his observations of the actual case, plice testify. present did not the throat wound. contends there- Scroggins’ jury photographs testified before fore that the were not intro- Donndelinger in opportunity had the to cross-ex- duced to assist Dr. describ- amine presented ing him as to the wounds but rather inflame the statements witnesses, through testimony jury’s passion. the of other such as Ms. Wahlen. Had Beam not testi- inflammatory Where allegedly evidence trial, fied Scroggins’ in our determination relevant as to an is and material issue different, would being be the result fact, the must determine wheth- trial court testimony Ms. Wahlen's would not have might possible prejudice er the inure been admissible in How- trial. by the admission of the evi- defendant ever, Beam testified at Scroggins’ since probative outweighed by dence is its value. trial, Scroggins right was not denied the 194, Wilson, 196-97, v. 93 Idaho 457 State confrontation. 433, (1969). The P.2d 435-36 determination of whether to admit evidence chal- or not While we conclude that the use of more lenged ground preju- that it is the system present the in dual the case probative dicial than is within the trial grounds reversal, does pose for the Abel, court’s discretion. v. 104 Idaho State potential in a complicated for serious error (1983). 865, 870, P.2d The case may against caution its use. present present case a close facts trial question to whether the court III. DID THE TRIAL COURT ERR IN admitting its in the evi- abused discretion ADMITTING INTO EVIDENCE PHO- photographs were Clearly, dence. THE TOGRAPHS OF DECEASED’S and, retrospect in it prejudicial; somewhat BODY? not, apparent photographs is that the were case-in-chief, part As of the state’s fact, prosecution in by used for the Donndelinger, pathologist, Dr. Thomas purpose they ostensibly for ad- which testify as to the cause of called Nonetheless, mitted. we cannot conclude death, alleged in the Information to be that the trial court abused its discretion During the course exami drowning. of the admitting photographs. nation, presented photo the state several Information, body, By sought graphs pho decedent’s which the state to en- charge by allegation tographs depicted bruises and abrasions. hance murder in its Donndelinger asked Dr. that a had been used commis- prosecutor knife though him cause of photographs would assist sion. Even whether the describing charge drowning, the murder itself was it his observations and artic- clear the victim had had required her throat procure defendant slitting slit and that the throat either had such may postpone affidavits court preceded drowning or had happened at hearing of the motion length for such Hence, the same time. evidence establish- as, of time under all the circumstances of ing case, that the victim her throat slit was may seem reasonable. charge relevant to the murder and the ac- provides: I.C.R. 34 companying allegation that the defendant The court on may motion a defendant Although used a knife. we are some- grant a new to him if required trial in the what troubled the fact prosecu- that the justice____ interest of purported admitting tor’s reason question of whether the interest of photographs Donndeling- was to assist Dr. requires justice newa trial under the cir- testimony, er with his and in retrospect, cumstances particular of a case directed appears photographs may not have to the sound court; discretion of the trial purpose, been used for that they were the trial court’s decision thereon will nonetheless relevant evidence and their ad- not be disturbed absent an abuse of that mission is not cause for reversal. Olin, discretion. State 103 Idaho (1982). Hence, 648 P.2d our THE IV. DID TRIAL BY COURT ERR inquiry here must whether the trial DENYING SCROGGINS’ MOTION granted court should have a new trial in A FOR NEW TRIAL BASED UPON justice interest based the note SCROGGINS’ REPRESENTATION Scroggins. Scroggins from Beam to con- THAT BEAM HAD NOT THE TOLD tends three inferences be drawn must AT WHOLE TRUTH TRIAL? (1) from Beam’s statement: Beam that did trial, After while in was court; (2) not tell the truth in that Beam row, carcerated Beam delivered a did not tell the entire truth about his own Scroggins. note, note to In the which (3) participation; and that he lied about Scroggins’ counsel attached to motion the state, participation. Scroggins’ The on the trial, stated, for a new for “Please hand, other claims that those inferences give me Shawn I worry by not [sic] not should be drawn because the note does telling you the truth and about well.” as rather, trial, lied not state that Beam at it upon filed for a new trial based merely night he did relates that more that his contention that note the was evidence than he said he did. state contends that testimony perjured. Beam’s had been the only proper inference is that Beam The motion was prejudice. denied without he, Beam, culpable meant was more provides part: I.C. in 19-2406 relevant § admitted, previously than he had but that Grounds for new trial.—When a verdict Scroggins culpable. was no less against has been rendered the defendant giving The circumstances rise the mo- may, the upon application, court his fact, troubling. In tion for a new trial are grant following a new trial in the cases and, indeed, ambiguous the note is both the only: urged by the and the inferences defendant urged prosecution by inference the could 7. new is ma- When evidence discovered drawn from be it. defendant, terial and which he diligence States, not with have In could reasonable 24 Larrison United (7th Cir.1928), produced at trial. 82 discovered the F.2d the court held that When motion new made party government a for a trial is where a contends that a ground newly-discovered trial, falsly evi- testified at follow witness dence, produce (1) ing the defendant must at the be met: elements must that “[t]he hearing support reasonably thereof the affidavits is well court satisfied by testimony given by the witnesses whom such evidence material witness is (2) false;” might expected given, is to be and if is without it the time “[t]hat

385 offense, conclusion;” (3) or the circumstances have reached a different thereof. seeking the new trial was party “[t]hat testimony false surprise when the by taken added.) (Emphasis to meet or did given and was unable contends Beam’s testimo- falsity its until after the trial.” not know of evidence ny was not corroborated other Larrison, (emphasis at 87-88 F.2d omit- required by I.C. 19-2117. In re- § ted). Although circumstances of the sponse, state contends that sufficient neatly case not fall within instant do evidence introduced circumstantial 19-2406(7) above, of I.C. under purview § testimo- trial so to corroborate Beam’s Larrison, holding it would seem Moreover, ny. the state contends circumstances, where a de- appropriate object counsel’s failure to govern- fendant submits an affidavit in- give accomplice court’s failure the witness recants ment witness in which any right Scroggins had struction waived testimony specifies ways in what he his acknowl- to such an instruction. state ways in what he dishonestly testified and edges may be fundamental error would, given opportunity testify if appeal first time on raised for the change testimony and where a again, suggests relating that matters to the credi- showing that such defendant makes bility questions do not raise witnesses may changed testimony be material accomplice and that cor- fundamental error innocence, finding guilt trial new are roboration instructions concerned credibility. be held. In this case note is should with witness subject multiple inferences and not does Osborn, State v. Idaho point, constitute an affidavit. At this (1981) Court P.2d this held: sufficiently developed is simply record pun- clearly Death a different kind of permit to conclude that the im- may from other that ishment denying trial court abused its discretion posed, 19-2827 mandates that and I.C. § motion. only the but the we examine not sentence sen-

procedure imposing that followed appeal of whether an regardless tence THE V. DID TRIAL COURT COMMIT indicates we even This to us that taken. BY REVERSIBLE ERROR FAILING may ignore unchallenged errors. not THE TO INSTRUCT JURY REGARD- Moreover, gravity of sentence of the a ING TESTIMONY? ACCOMPLICE infrequency with which death the trial, Scroggins After moved for ac outweighs any that imposed rationale is or, alternative, in quittal the for a new trial might proposed justify refusal grounds the trial court on the commit objected not to below. consider errors failing to by ted reversible error instruct similarly do not allow jurisdictions Other jury accomplice with regard the testimo a preclude rules appellate technical ny. The court the motion. denied comprehensive review of those cases Scroggins the contends that testimo- im- of death has been where a sentence ny implicating him in the homicide came posed. co-defendant, from his Albert Beam. 410-11, (citations P.2d Id. at 631 192-93 omitted). provides: I.C. 19-2117 § be had on the testi- disagree

A conviction cannot state’s We with the assertion mony accomplice, an unless he is cor- of not the issue this Court should address evidence, which to instruct by roborated other the court’s failure the itself, the accomplice testimony. Assuming, the aid of testimo- without and without deciding, tends to should ny accomplice, connect that such an instruction and, in the requested the commission of the have been counsel the defendant with offense; request, is court not suf- absence such a the trial and the corroboration ficient, jury, we deem if it the commission should have so advised merely shows 386

any regard facts, failure to be harmless. permit it was finding sufficient testimony Scroggins’ own at trial suf- was connected with the portions of ficient to corroborate Beam’s Therefore, commission the offense. trial, testimony. At admitted district give court’s failure to the accom- that he assisted in taking the victim instruction, plice erroneous, if it even he, creek, to the Scroggins, had hand- was harmless give and hence not does victim, cuffed that Beam had used cause for reversal. knife, he, Scroggins, had attempted to rape victim and that he VI. IS IDAHO’S CAPITAL SENTENC- vicinity had, in the been when Beam ING PROCESS UNCONSTITUTION- fact, raped and murdered the victim. AL BECAUSE OF ITS FAILURE TO place presence Mere of a crime or REQUIRE JURY, A THAT AND NOT commission, acquiescence in its without JUDGE, THE A IMPOSE SENTENCE participation, does constitute crime. OF DEATH? (Mont. 924, Bradford, State v. 683 P.2d 929 900, Sivak, In State v. 105 906 Idaho 674 1984); 42, Wash.App. 36 Hystad, State v. 396, (1983) Creech, P.2d 402 and State v. 793, (1983); 671 P.2d 798 Morrison v. 373-74, 362, 463, 105 Idaho 670 P.2d 474-75 1279, State, (Okl.Cr.1974). 518 P.2d 1281 (1983),this Court considered this issue and aiding, abetting Some encourage actual capital sentencing concluded Idaho’s part person charged ment on the scheme does not violate the Idaho and Fed- person essential to make that accom eral Constitutions. We continue to adhere plice. Brooks, 892, 904, State 103 Idaho precedent.1 to that 99, (Ct.App.1982). 111 “To P.2d be an aider and abettor one must the crimi share VII. WAS THE DEATH SENTENCE

nal principal; intent must there be a community of PROPERLY IMPOSED? purpose the unlawful un Duran, dertaking.” 594, State v. 86 N.M. provisions of Pursuant I.C. (1974) denied, 526 P.2d cert. required 19-2827 we are to review the § (1974); N.M. 526 P.2d 187 State v. impose trial court’s decision Boast, 87 Wash.2d 553 P.2d 19-2827(a),(b) in this I.C. sentence case. § (1976). prosecution felony-murder, In a (c) provide: prov the state relieved of the burden (a) penalty the death is im- Whenever ing specific defendant intent posed, judgment becoming only prove to kill and instead need that all court, final in trial the sentence shall charged principals individuals had the be reviewed on the record Su- specific predicate intent to commit the felo preme Court Idaho. ny. aiding was convicted of (b) Supreme of Idaho shall murder, abetting felony wherein the un punishment as well as consider derlying felony rape attempted or by way appeal. errors enumerated rape. Scroggins permit admitted to facts (c) the court regard to sentence With ting jury to conclude that he had at shall determine: tempted rape the victim. accom “[A]n (1) the sentence of death Whether plice, having agreed participate in a passion, influence of imposed under the act, having criminal risk runs the arbitrary factor, other prejudice, primary scope pre actor of the exceed and illegality.” Davis, planned State v. 101 (2) supports the 654, 883, (1984). Whether evidence P.2d Wash.2d 682 886 aggravat- finding statutory Hence, although Scroggins’ judges of a testimony did among enu- ing from those not corroborate of the circumstance Beam’s version opinion 1. The to adhere dissents. author this continues expressed to the views in his Sivak and Creech purposes 19-2515, Code,, of sentencing, in section Idaho the court must merated of the indi- particular acts and on the focus vidual defendant. (3) sentence of death is ex- Whether the disproportionate penalty to the cessive or Carolina, 428 U.S. v. North Woodson In cases, considering imposed in similar (1976) 2978, 280, 49 L.Ed.2d 96 S.Ct. both the crime and the defendant. under- Supreme Court States the United quali- of a death is Our review sentence penalty the death the fact scored tatively different than our review of an any oth- from that of different qualitatively subject ordinary criminal sentence which is that a emphasized The Court er sentence. to review in this Court on an abuse of carefully must consider reviewing court McPhie, E.g., v. State discretion standard. and particular offense of the circumstances (1983); 652, State 104 Idaho 662 P.2d 233 offender. the individual the record of Wilson, (1970); 100 Idaho 604 P.2d culpable morally Scroggins was Clearly, 19-2515, However, I.C. 19-2827. with a §§ However, severly punished. be and should 19-2827(a) requires death sentence I.C. § Scrog- verdicts in jury in mind the keeping independent this Court to make an review ease, we are remind- Beam’s gins’ case and record, of the sentence on the and the verdict re- Scroggins’ jury’s ed abuse of discretion standard which other- partic- Scroggins’ level of flected applies sentencing wise in criminal reviews to the same crime did not rise ipation in the applicable. is not jury According to the Beam’s. level as killing. below, verdicts, the actual forth conclude Beam alone did For reasons set we verdict, Scroggins jury is excessive and According sentence death to the imposed in disproportionate penalty the crime personally commit did not cases, considering crime similar both the the commis- and abetted but aided murder and the defendant. jury felony murder. sion of a leaving the sec- form returned its verdict painstakingly We have considered premeditated with charging tion record, doing, so have focused not unsigned. murder and deliberate only on the crime and the circumstances Scroggins went while raped the victim surrounding age, its commission but on the attempt did not rape but far as to so characteristics, person- criminal record and According to the act. complete the al involvement of defendant. We must verdict, victim’s did cut the conclude that the death sentence should not Scroggins not note that We also throat. imposed have been this case because police the crime to only reported light considerations, following crime taking them to the insisted applied death sentence as to this defendant story. they disbelieved when scene even was excessive. Windsor, In State v. 110 Idaho (1985) acknowledged P.2d 1182 we case of En penalty the seminal death charged where co-defendants are each Florida, mund v. 458 U.S. 102 S.Ct. degree convicted first murder and (1982), 73 L.Ed.2d 1140 the United sentences, they disparate where receive such Supreme recognized States disparity may justified where one defen- penalty unique severity in its killing did dant the actual while the other did irrevocability, required the State not, where, respective because of their personal must focus on the defendant’s involvement, levels of criminal one defen- intent, character culpability and not may culpable dant be deemed more than the merely accomplice, an before instance, other. It would seem that penalty may constitutionally be the trial court’s focus was crime and on the imposed. Id. at 3377. S.Ct. at Hence, personal culpability particu- not on the of this principals while all in the commis culpability lar defendant as that is reflect- charged may identically, sion of a crime regardless act, ed verdict and the evidence of who committed which upon adduced at trial which the verdict was tal and development emotional were at a clearly based. years level several chronologi- below his age. cal All of suggest this does not an indicates, presentence report As the absence of responsibility for the crime of Scroggins history does not have a of vio- murder, deliberately committed in this lent criminal conduct. While it is true that Rather, case. say just it is to as the he supervision has been under the of the chronological age of a minor is itself a Department of Health and Welfare for a relevant mitigating great factor of years, supervision number of was nec- weight, so must the background and essary unstable, because particularly of his mental and development emotional of a unnurtured, inadequate upbringing. youthful duly defendant be considered in eighteen at the time of the sentencing. age crime. His mental years. was 13.8 We are not unaware of the extent Because of his chaotic and troubled child- engage which minors increasingly in vio- hood, Scroggins was and is under tremen- lent crime. suggest Nor do we an ab- dous psychological pressure and has failed legal sence of responsibility where crime develop responses mature to stressful is committed a minor. We are con- situations. cerned here with the manner of the In Eddings Oklahoma, 455 U.S. imposition of the penalty: ultimate (1982) 102 S.Ct. 71 L.Ed.2d 1 the Unit- imposed death sentence for the crime of ed Supreme States judg- Court reversed a emotionally murder disturbed imposing ment a death sentence on sixteen- youth with a disturbed child’s immaturi- year-old Monty Eddings. reaching Lee In ty- that result the Court instructed: 115-16, Eddings, 455 U.S. at 102 S.Ct. at judge The trial recognized youth 877-78. must be considered a mitigating relevant Although Eddings, Scroggins unlike youth factor. But is more than a chrono- act, not a minor at the time of the criminal logical fact. It is a time and condition of eighteen years age barely he had person may life when a suscepti- be most age majority. reached the We cannot ble to influence and psychological ignore “youth the Court’s admonition that damage. history replete Our is chronological is more than a fact.” Just judicial minors, laws and recognition that Eddings sixteen-year-old, was not a normal especially in years, their earlier generally eighteen-year- was not a normal are responsible less mature and than Eddings, Scroggins old. Like had been de- Particularly “during adults. the forma- “care, prived paternal of the concern and years adolescence, tive of childhood and attention that children deserve.” Also like experience, minors often lack per- Eddings, Scroggins’ mental and emotional spective, judgment” expected of development were at a level well below his . Baird, adults. Bellotti v. 443 U.S. chronological age. question There little 3035, 3044, S.Ct. 61 L.Ed.2d [99 797] deserving moral blame (1979). incarceration, lengthy but our view Even 16-year-old the normal customarily put he should not be to death. maturity lacks the of an adult. In this judge sentencing Scroggins, In re- case, Eddings 16-year- was not a normal marked: old; care, deprived he had been paternal long

concern and agonized attention that chil- I have over this for a time contrary, finding, dren deserve. jury’s On the it is not because of the because of disputed juvenile you directly that he was a maybe with seri- the fact that did not But, ous problems, emotional and had been I resolved commit that crime. have raised in a neglectful, my maybe why you sometimes even not di- mind did violent, addition, crime, family background. your rectly commit that crimi- testimony Eddings’ great there was culpability every men- nal bit as have, victimize, my nevertheless, likewise in you eighteen are would because in age prior judgment, society not have a as well years you and do as the victim record, may legal be sound criminal there this of ware- case inasmuch the cost[s] sentence, life argument for fixed institutionalizing a housing person a [and] long giving consider- going over that and no prohibitive them when there is are it, in I that my judgment believe ation light at the end of tunnel. wrong, though even a fixed sentence is thereby expressed The court con has this matter in the decided Scroggins, if would imprisoned, cern that they in have. manner which type psychi not receive the medical and wrong I is The reason feel it is because need to be atric care he would in order is the record clear as we have talked because the would not rehabilitated state about it. Extensive efforts have been Assuming appropriate sufficient funds. you rehabilitate made treat and for purposes of discussion that there has been no measurable success. properly state fund its rehabili refuses psychological re- The evaluation that was program, tative would a reason not be quested by yourself has both counsel simply over life. There is choose death you being unpredictable and described authority proposition no for the dangerous to The home environ- others. expend funds adequate state's failure to in which been you ment have raised con services is a factor to be inmate here, my in history with the that exists imposing penalty. sidered in the death judgment you placed if in a peniten- were tiary setting, your condition could holding today Our our concern reflects self-image would worsen. Your deterio- in penalty only imposed the death profile according rate. The test overall imposition unmistakably cases where its is authorities, “It to the medical is indica- This is not a case. We warranted. such prepsychotic personality of a tive conviction, therefore affirm the vacate predisposition paranoid towards schizo- re-sentencing. remand for sentence and phrenia.” Again, it would be violation of this court’s conscience believe that C.J., DONALDSON, BAKES, J., con- you effective treatment is available in cur. setting, you if penitentiary were sentence, given a fixed life if it even Justice, SHEPARD, part in concurs available, necessary were that the funds part. dissents in expended by would be the state reme- ex- opinion I in the the Court concur dy you by placing that situation in a sen- cept as VII—was the death to Part different environment and with con- Part VII properly imposed tence as to —and counseling stant medical treatment and I dissent. necessary. would be opinion “that the majority concludes crime, your age, your The nature of the dispro- death is excessive and sentence of intelligence being in the level dull-normal portionate penalty imposed similar range, your physical, appearance, mental cases, considering both crime and the fantasies, ingrained your your sexual ab- However, my majority, defendant.” assure, my normal behavior would view, overturning the trial is in effect your being judgment, victimized in the miti- judge’s aggravating as to decision penitentiary you other inmates unless gating circumstances. kept away confined and from other inmates, in and of itself a source of cruel upon Scroggins’ The majority focuses punishment and unusual because of the participation level of the crime. constant confinement. Bean majority ignores testimony clearly killing was put person who penitentiary To in the testified being Scroggins. Scroggins’ testi- realistically incapable rehabili- committed mony criteria we the commission of the crime subjective tated as to 390

equivocal, evasive, contradictory and pri- such Paradis, 117, as State v. 106 Idaho or statements him. made (1983); trial 676 Gibson, P.2d 31 State v. 106 court had before indicating it evidence 54, (1983); Idaho 675 33 P.2d State v. Si Scroggins instigator was the and the driv- vak, (1983); 105 Idaho 674 P.2d 396 ing Stuart, force behind the commission of the and State v. 110 Idaho 715 crime. (1985), P.2d 833 of all which are not sub stantially case, dissimilar to the instant and majority focuses also the “cha- in all imposition of which the of the death and otic troubled of Scroggins childhood” penalty upheld. was and indicates that under he is “tremendous psychological pressure and has failed to develop responses mature to stressful situ- BISTLINE, Justice, concurring part, in ations.” The troubled childhood Scrog- of concurring specially, and dissenting part, in

gins exemplified by almost continual psy- HUNTLEY, in Justice, which concurs as chological problems attempts and at coun- Part III. seling, resolved, none of which have resulted in a series commitments to juvenile facilities in several states. He has. I. had more or less continual conflicts with With coming this case close on the heels activity, the law in criminal albeit as a Windsor, of State v. Idaho

juvenile, some of which contacts were as a (1985), P.2d 1182 where the Court for the result of felonious activities. The trial first time a death vacated sentence on court further evidence before it that grounds that it excessive was or unconsti- indicated that Scroggins showed little emo- tutionally imposed by a sentencer other crimes; or tion remorse for Scrog- jury, than a it is not difficult for tome gins unpredictable dangerous to oth- in accordingly judgment concur of the and will continuing ers constitute a danger me, respect. required Court in that It is society; will, Scroggins in the fu- however, ture, in cases of this awesome undoubtedly give to unrestrained magnitude observations certain should be gratification sexual aggression; and or proportionality made as to concerns where that sexual large deviation was a factor upheld previously the Court has the death crime; the instant that he will never imposed sentence co-defend- society. become functional member of It Beam, ant Beam. Idaho State further was indicated that has a (1985). 710 P.2d 526 prepsychotic personality predisposi- paranoid schozophrenia, tion towards and is

unpredictable dangerous to others. II. Although showing Scrog- there is no against Scroggins The state’s case in- gins’ any way mental status in constitutes expenditure volved an earlier considerable any legal practical excuse or defense for of time in order I and effort could crime, nevertheless, view, my indi- comprehend transpired in what Beam. cates that he continue to is and will be a I There wrote simultaneous trials in society, non-functional and is member judge pre- one one trial courtroom before extremely will danger- continue to be separate siding juries, over one two for ous, potential with the for further crimes defendant, experiment each a noble violence even if incarcerated the rest separate my opinion which failed. took As life. out, pains appellate extreme re- point though majority opinion

Even pur- impossible view of with- Beam’s trial ports importance going reverse the out the Beam record and outside of penalty proportionali- hope- on the basis of into the record in order to fact, ty, fully piece together. it fails to puzzle discuss similar cases past portion my opinion decided the recent the main is unable to review When this Court laboring impres- under the concluded while the lower court be- proceedings Beam, testifying after as a state’s sion that cause, the statutes of in violation of himself against both witness proceed- state, of those the record trials, by in was not cross-examined both pre- ings properly taken and was not Scroggins. From Beam: counsel for served, to the record’s defi- and due Honor, prior Your MR. BISHOP: to determine ciencies we are unable White, by I Mr. cross-examination judgment of whether defendant’s a Jury A be I ask that removed. would pro- in has been obtained conviction proper light of the this would feel ceeding fundamental er- tainted with system. two-jury ror, apply the rule of then we must May we the approach MR. JONES: State, 91 Idaho 428 Ebersole v. that, Your Honor? bench (1967), P.2d 947 where we stated: Approach bench. COURT: not his was “Appellant’s dilemma (Whereupon, an bench off-the-record provisions statutory making. The own between Court discussion recording pro- of oral requiring the Counsel.) are reporter ... ceedings by the court going I am ask that COURT: protect a defend- fairly ... designed step (Whereupon, A down. Panel now before very situation ant from the Jury open A Bailiff escorted out of this Court. proceedings court and certain Jury in the absence of A. The recess was taken from 11:45 a.m. noon is such a breakdown in “When there p.m. 1:30 Reconvened. Counsel application proce- of established respective parties, together with the dures, record, by is reflected this Defendants, present. following parol which resort to the necessitated proceedings were had the absence of court officials and evidence of B.) Tr., Jury Jury [Beam,] A and both appellant himself to establish what 4, pp. 838-62. record, Vol. place took in court of there is such a of fundamental lack fairness unknown, by It will be forever at least and deviation from established rules of appeals, resort to the records on both procedure as to necessitate conclu- by agreed what was the court and not been appellant sion that has afford- counsel at the bench defense conference. process the due protection ed All do know—from that we the record—is clauses of the Constitutions state, in presence for the that counsel 91 United and this State.” Ida- States juries, requested both and obtained an ho at P.2d at 953. just “off-the-record” bench discussion by prior to cross-examination of Beam record which Continuing from a believe White, Scroggins. counsel for And Mr. transpired at did not disclose what we do know that “off-the-record” capi- secret affair bench conference—a place, and discussion took there been had not cross-ex- tal case—that Beam by any cross-examination Beam trial, I wrote: amined Scroggins. Wedo not know counsel for important in that bench what was said Here, however, testified. And result was no discussion —the which subject to accordingly he was cross-ex- cross-examination. amination his co-defendant’s counsel. appellate do know is What we also way, in that “the way, incomplete virtual- review of an record is pro- search have been for truth” would ly court, wrote in impossible. apparently As Justice Bakes moted. trial see- live Wright, ing dissent to no between Beam’s State 97 Idaho difference 229, 235, hearsay use of his oral (1975): testimony P.2d officers, police applied confession to the problem fillment the otherwise of non- the Bruton rule to produced both. mean- confrontation which the Bruton [“Both” ing testimony Beam’s live and Beam’s in the place. comedy! rule first What a It Beam, supra, 109 Idaho at confession.] Bruton circumstance which the 633, 710 P.2d prosecutor, people, 543. of all had utilized to peculiar hybrid obtain severance. along, again: much further commented And What came out of it all was Beam testi- larger problem is the trial But fying against Scroggins, who was indeed rule, administering of the court’s Bruton right awarded of confrontation which first as it was here administered for the was exercised (you cross-examination Idaho; joint- in jointly-charged, time in confession), cannot cross-examine a ly-tried, capital juries— with two case Scroggins testifying against thereafter the of by fact that both COMPOUNDED Beam who was not accorded confrontation very and the co-defendants testified the by cross-examination. di- Nevertheless for the rule was non-exis- reason Bruton court, being rect order of the Beam’s trial Beam, 643, supra, tent. 109 Idaho at over, attorney Beam and his were confined at 710 P.2d 553. Scroggins to the courtroom took while the And, keeping well in mind that I was still and stand laid on Beam all for the blame laboring under a impression mistaken killing. the only which would be later corrected on opinion, I early mentioned the Beam going Scroggins record, afield into the also p. 57, again p. first at 36 and at was it the this: prosecutor’s worry if that Beam and coun- required present sel were not to be as the What also comes across to from me Scroggins lay trial continued on that “with reading testimony the of both defend- sitting pro- a very members new law ants, and examining giv- their statements cess, an improper that conclusion could police detectives, en to the is that Beam be drawn absence Beam the Mr. mentally is as much the person slow as from of ” point. at this critical Bainbridge compared was I as Sivak. challenge anyone would to read the testi- Having and first ruled Beam his mony argue and statements and the present, attorney need trial not the Yet, contrary. Bainbridge given was not prosecutor’s judge succumbed to the unex- sentence, was, the death and but Sivak plained gut feeling improper jury conclu- Beam and both were. sions, ruling. In the Ad- reversed My purpose say pointed is not to trial I exactly dendum out how this sentencing appear jury: court erred in both to death. would hearing suggest jury, But I do that one testified, only it When was testify each on direct and then on two ruling the because trial court reversed its cross-examinations, might de have well attorney that Beam and his were even in differently issue two cided the than did room, court’s the court ... under the Beam, juries. supra, 644, 109 Idaho at previously absolute over declared control (reference at 710 P.2d 554 to Sivak proceedings, the sat there like dum- ... Sivak, Bainbridge v. 105 Idaho attorney having with no mies Beam’s — State — (1983) P.2d 396 674 cert. denied opportunity to cross-examine. U.S. -, 887; 104 82 S.Ct. L.Ed.2d worried, prosecutor lay the Just as 698 Bainbridge, Idaho State conclusion, jurors jump did and there to a (1985)). P.2d 335 one conclusion that the reasonable jurors pages pointed jurors later could Where Two an Addendum come to. those White, reporter’s Scroggins’ previously the fact tran- seen Mr. Beam, script inaccurately attorney, thoroughly cross-examine failed to show obviously subjected jurors Beam had been to cross-examina- those would believe that he by Scroggins’ complete attorney tion ful- did not believe counsel—a Beam’s remittitur, Having against recalled whatever make inroads could consideration, the stated: further Court testimony. other Scroggins’ direct words, his attor- jury Beam and saw here are questions involved at chal- ev- ney slightest not importance appellant, utmost effort offer just given Scrog- testimony justice lenging ery demands consideration Beam and his attor- put, gins! power Otherwise both this determine its court conceding validity ney seen as reduce recall remittitur and to testimony. This accounts case, punishment in this which exonerated verdict in trial do reduced if the facts punishment be killing and from the the actual imposition him from the death warrant anything I wrong which rape. Ramirez, It is at 34 Idaho penalty. supra, prosecution. criminal witnessed have P. at 281-82. beneficiary clearly so, do power its inherent and declared ruling, it and was the the court’s erroneous (It id., 279. so 203 P. has done the court into such who led prosecutor cases.) short subsequent place in the first error. And grievous point: and to the led the court into prosecutor who facts reciting in all of the Without detail attempting to conduct two the error involved in the trial and circumstances separate trials one courtroom “almost” cause, pointing out specifically juries. two reversible, but were not errors which mind, my little in almost There is doubt in jury have influenced the may which fact, prosecutor’s in cross-ex- none it is clear assessing penalty, the extreme him for Scroggins of established amination its jury to our minds that the abused giving he was in false state- the liar first doing. in so discretion But, police to the officers. with ments therefore, have, very We careful after apparently seeing no Beam and counsel consideration, reached the conclusion Scroggins, to the reason cross-examine duty to the remit- that it is our recall Scroggins by jury, if so inclined where titur, modify to the judgment the and murder, felony convicted could them of be be inflicted extent that the sentence to itself readily let entertain reasonable in labor imprisonment life at hard of guilty was not doubt and inflicting penalty, the lieu of death actually rape, guilty killing and not is so modified. judgment the killing. in the actual participating 637-38, P. 203 at 284. Id. at ruled, jury has so no matter how The quality today display is to the If this Court by appear- misled it was deceived and Windsor, in now in justice it showed conclusions, i.e., improper drew as ances— case, recall the it will at least nothing prosecutor can be worried— will Beam’s case so that remittitur in regard. verdict final. done That is considering opportunity of afford itself it, challenged state has not and no one letting by injustice being is done which standing challenge it. else has at off to his death—while be sent waving boldly the banner any proportionality is to in same time If there Scroggins off however, sending penalty sentencing, proportionality it is while death recall If it does pause now re to a less severe. only just that the sentence remittitur, it will at least establish Beam’s sentence. And it consider Ramirez, that the other 34 Idaho to a somewhat doubtful bar do so. can State my re- (1921), read what P. 279 the Court recalled its members sometimes 203 cases important its search reveals these consider earlier remittitur further grave consequence. As I intimated most which had affirmed conviction judgment Beam, ago then degree punishment over three months first murder pass upon the Court would knowing v. Ra how at death. State fixed (1921). mirez, Scroggins’ appeal: Idaho 19 P. 376 here, What also alright. comes across to me from front The time is 2310 reading testimony Ray, you’ll of both defend- hours. if initial the bottom ants, examining giv- your their statements here that that is head hair I detectives, police envelope. en to the is enclosed in that that Beam Just a few up mentally person is as much the minutes here and I’ll set slow another Now, pharmicist get Bainbridge compared pubic fold. some to Sivak. Beam, that, A you hair. little more than if at will. Idaho 710 P.2d at 554. pubic That should be sufficient. observed, I As above mentioned the state- given voluntarily? hair is also given police ments detectives Yes, BEAM: sir. having Beam. prior any This was to his TWEDT: The attorney, anyone. advice from an time also or from here, Freely again, hours now. And admitting his this line complicity, as did Marshall, (who Ray. I forgot sign go was the first one to that last envelope police envelopes there. point finger To these I am guilt at Beam), affixing area mentality form which the hair Beam’s was such that not pulled, Ray all the name of Albert displaying any regard for his life Beam, 7/9/83, stake, prime which was date the time that Mr. then at concern signed package. Beam has get each Mr. was whether he would back the cher- Beam, you property you pair certain ished of handcuffs which he said his you when given arrested here Lovel- friend Shawn to him. following ock. excerpt Observe the from Beam’s police

first statement detectives BEAM: Yes. apprehension— made in Nevada after his TWEDT: Your clothes and ... awith short lead-in to the handcuff affair: gym bag? that a you mentally BRISBIN: Do feel alert Yes, it BEAM: is. that, and everything normal like nor- Okay, gym bag. TWEDT: like cotton mal? BEAM: Yes. BEAM: Yeah. Okay, pieces of TWEDT: certain that doin’, you’re TWEDT: You know what probably will have be seized as evi- to dontcha? permission your I’d like to dence. have Yes, BEAM: I do. things. .Again, I to those admonish seize Okay. Ray, sorry. consent, TWEDT: Sh. .or I’m you you don’t have to I’ll samples your pubic We need hair and get go have to search warrant to into the Now, you give head hair. don’t have to necessary, I if bag if have to. But that’s if I you us it don’t want to but can guarantee ya I I will do that too. You ya guarantee getwe back Idaho when understand that? get pull I’ll a court order and I’ll Yes, I BEAM: do. myself, ... so voluntarily Okay. you TWEDT: Would step So over BRISBIN: ... give permission me seize articles ____needs pulled by

TWEDT: to be clothing necessary or I feel whatever follicle. The follicle needs be with it. that bag? from Ray, though, Your head hair we need BEAM: Yes. your from several areas of taken gonna Okay. TWEDT: I’m fill out piece right there from head. That permission form I’ll to search have be in side toward the back. These can The you Okay. execute that. back envelope. purpose the same For the Spanish apply. so it doesn’t side’s tape, you giving are us hairs these Okay. gonna you, Ray. I’m read this to voluntarily? undersigned, Permission to Search. The Yes, I BEAM: am. Lovelock, residing at Nevada Law there, Okay. okay, your Building, TWEDT: Got some Enforcement that’s ad- hereby just right Anyway, has maybe now we a little out dress now. ... Twedt, 109 Idaho Gary rape.” attempted Detective authorized against designates backdrop P.2d at It was other as he to assist 529. officers him, appeal my residence or real in Beam’s were con- search other issues lockers, sidered, very much The property at the I so. property located think Building, and opinion Lovelock Law Enforcement that: noted re- I said officers to further authorize hearing, sentencing testimo- At Beam’s residence, my move from real estate ny was the State and the offered doc- and/or motor vehicle whatever defense, calling three witness- the State property or items of whatsoever uments es, Canyon County of the director pertinent be deemed shall (where Beam in- Detention Center understanding investigation with the carcerated), sergeant, detention center give receipt me a for said will officers prior and one of Beam’s cellmates. they giving remove. I am whatever defense Beam. trial court called to these free- permission written officers presentence it the inves- also before any ly voluntarily, without or threats tigation re- psychological evaluation promises having been made and after ports. testimony indicated that That informed said having been officer parole was on drugs, Beam abused for right I to refuse a search and/or have a burglary when the murder was com- out lines seizure. I’ve crossed the.. mitted, exposed to and partic- had been applying vehicles that sort to motor sexually ipated in much deviant behav- They don’t All I’m thing apply. here. animals, ior, impul- had tortured property in is the that the law interested sive, adequate con- and lacked officers here seized from enforcement science. you. Okay? every- You understand sentencing hearing, Following Beam’s thing? court, pursuant the trial I.C. 19- § do, Yes, I sir? BEAM: of three statu- found the existence Okay. TWEDT: (1) that tory aggravating circumstances: also, Ray, per- Could we have BRISBIN: heinous, especially atro- murder your mission to obtain handcuffs? excep- it manifested cious and cruel and BEAM: Yes. (2) that Beam had ex- depravity; tional life; yes, right? indicated disregard BRISBIN: You hibited utter human (3) Beam, by prior conduct get I BEAM: Yes. Will ever ’em back? murder, conduct in the commission court, up TWEDT: That’ll propensity commit had exhibited okay? probably murder would constitute which absolutely it become Because has now es- society. to The trial continuing a threat sential Beam’s sentence be reconsid- that mitigating possible six court considered ered, majority opinion I the have revisited old; years factors: That Beam was My to Beam. effort is further consider mentally emo- that he been and had background, Beam’s intellect and his both tionally that he been co- deprived; eye an that of independently and with on operative police and admitted with given Scroggins. by the The consideration crime; that he had involvement in the First, very majority opinion limited. employment limited skills a cook however, majori- that has to be noted the mechanic; he and a that suffered from reciting the of the ty opinion, facts after and that he was dependency; substance murder, Scroggins crossed over also family setting. raised in a turbulent Scrog- that: “the file to observe order Beam, 109 Idaho at P.2d supra, first gins Scroggins guilty of jury found at 529. degree murder, finding that he not com- did review, I Having my own now conducted directly, but rather aided mit the crime of important find that items information encouraged and advised its abetted and/or sentencing relied commission, Scroggins guilty judge of the district and found following excerpts Beam included from untruthful when he certain that he report presentence investigator: of the “get away can it”. with Nampa Department Police in- detectives Because Beam’s extremely version fit Lovelock, terviewed Beam Nevada and close the physical Scrog- evidence and story gin’s Beam told the that after he large discrep- was filled with version Scroggins ancies, (for spot had arrived at the discrepan- behind information on said Safeways, Scroggins Lenten, please handcuffed transcripts police cies refer to the of panties knife, her off raped cut Scroggins) Scroggins interviews with was Degree her. Beam said he then had sexual inter- arrested for First Murder. course with the victim. When was fin- he ished, Scroggins perform had the victim SIGNIFICANT FAMILY INFORMA- fellatio on him. Beam continued that TION: The defendant was born in Scroggins pull had the victim pants up her the third child of four children conceived handcuffing before her hands behind her Harvey and Louella Beam. Beam relates walking back and her canal. Accord- years that the first ten of his life were Beam, ing held her head un- During period stable “normal.” period der water for a of time and then time, family lived on ranch in the asked Beam hold head her for awhile. Sunny Slope and Beam’s area father pulled up Beam said he the victim then worked on ranch. Beam’s father Scroggins pulled resuscitated her before injured back his and was terminated for no the victim to the canal slit back her longer being able to handle the ranch work. throat. Beam said he that because could life-style family's Beam states that his radi- sight not stand held blood he Beam, cally changed point from on. under quit victim the water until she mov- however, life, aspect does relate one

ing. nine, which age at the would indicate a investigator, In comment to this Lieuten- Beam, potential According for violence. Newton, Riley Investigator ant Chief there of cats” on the were “thousands Nampa Department, for the Police states ranch. Beam hated those cats because impressed he with the fact that “they’d you.” growl or scratch Because Beam’s version the crime matched so cats, spend for lot his hatred would physical close evidence. On the oth- to kill them. planning of time how Often- hand, er Newton feels sto- times, pour gas Beam would them and ry kept shifting and closely never matched tie light then them on fire. He would also physical investiga- evidence. Newton’s together, them hang their tails over tion revealed collateral information clothesline, fight and let them until one or was known a “knife nut” fond both of them were dead. He also while Beam was not known for or violence exploding hanging them the neck handling He knives. feels in their anal cavities. For firecrackers instigator while murder years next father worked as few Beam’s Beam was the follower. Newton believes jobs but at various automobile mechanic everything except about Beam’s version any job due was unable to be successful at part where Beam tried to maintains he la- problem. finally to his He was back the victim with CPR. Newton resuscitate terminally during this beled disabled premeditated act not feels entire was a developed prob- time he severe alcohol on im- happened but moment moment time, the during period lem. Also this of pulse. brother,........., got older mar- defendant’s reports ried moved Caldwell. Beam Nampa

Detective Creech of Police to too much contact with Department, also feels that the defendant that he never had kept him- regarding been his older brother he to has truthful his version of because family a self did not with the on the offense. It has been Detective relate regular age Beam experience that the defendant is basis. At of Creech’s a beat him a rubber hose or a he and would with first encounter when his sexual his strap. age cousin older brother father female watched At Beam’s razor time, his wife. At that engage in sex with flight him a and he knocked down stairs his had sexual intercourse. he and cousin he away says from home. Beam ran intercourse they had sexual He relates that for to foster home six months then went years. to five times over next two four (Child asking go to back home. before years age his By the time Beam was claim this time with protection workers drinking got he was from the time father family only two and had foster months morning in the to the time he went up Beam.) Upon returning on impact no having was also sexual Beam’s father bed. home, following Beam himself his found Mr. Beam with Beam’s sister. intercourse pattern. claims father’s alcoholic Beam daughter’s] sell sexual favors would [the major source of contention with money, in return for car various males concerning conflicts his father were the or also parts, alcohol. Beam’s father girl Beam that his Beam’s friends. states severely his retarded forced Beam and girl either or intimated his father bribed brother,________(twoyears Ray), older than During friends to have sex with him. he have sex their mother while with year discipline 16th down Beam’s all broke (This statement is uncorrob- watched. parents as Beam told his from then except suspect collaterals orated he would do what he wanted to do. Also family took swapping sexual members during year this went to [Beam’s sister] mother place.) Beam maintains that his age At 17 Beam live at foster home. anyone this if favor of [X], engaged to a Ms. became refused, [X] Beam them. Harvey would beat lived they together three children and attempt Beam states that his father did not splitting up sex him his Fur- she to have with brother. seven months before when thermore, age impreg- at the Beam he her a knife on him and struck pulled girl he boy nated and conceived whom Next, at his fist. Beam cohabitated with year began has never seen. That Beam with a Ms. left parents’ his house [Y]. [Y] experimenting drugs various types with giving expla- after three months without (For began drinking. specific more why leaving she to Beam as to nation information, refer to substance abuse During span, reports time Beam him. this report.) age At Beam’s section this he did farm work for a some [Z]. Once, even more behavior became bizarre. developed Mr. relates that he and Beam [Z] sister, dare he of his on a from his took all relationship which lasted for a homosexual clothes off and walked down the street year out one before Gonzales moved about daylight going hours and he started enjoyed of the area. Beam states that he parties do He stripteases. where he would being relationship as he was tired of giving engage dogs would also and cats prison going women.” Before hurt they alcohol until He intoxicated. inde- age of Mr. Beam lived for having further related that he considered amount of time with a woman terminate dogs sex one father’s but when of his (Refer to marital as Freedom. known grab her to into the he went take her Beam of his report.) of this thinks section growling gave he bedroom she started so having completely miser- childhood been up says again He on the idea. he never and he that his father deliberate- able feels As having considered sex with an animal. happiness. ly destroy out to his When set heavier, drug Beam’s use became he found occasions, any happy family asked about wanted, buy drugs that in order he reported that on three to four occa- his father he needed but to wait until year family a nice per sions would have consumption to passed out from alcohol camping fishing. they time when went money at this Discipline from him. steal appreciative is also father for says on Beam severe and Beam time became week, per teaching father him or four occasions his automobile mechanics. three Concerning siblings, reports his Beam grade perform- metic level was 2.9. His always he exceptionally has been close ance on the typical Bender-Gestalt test was to his sister. He related that while she year a six and a half old child. Beam engage wanted to in sexual intercourse special (Re- then placed was in education. him, with he would not allow sexual report fer to presen- attached to his contact between them. Beam state that he tence.) special Beam continued in edu- confided and counseled each [his sister] High cation at West Junior School until they siblings, other and if not been dropped 9-5-78 when he out. He went they would be married. Beam never had to back to school on 9-2-80 when was decid- much with contact older [his brother] ed to move him the special education away Ray very moved when was [he] Nampa department High at School. On young. Beam is aware that older [his 9-18-80, dropped he out of school for occasionally in- would have sexual brother] good____ Special Education Admin- [T]he tercourse with is se- [his sister].......... Nampa istrator for the School District verely retarded and Beam does not relate a very closely states that she worked with relationship urging close with him. At the in many Beam and was his home on occa- however, [Z], did Beam have one homo- sions. states the Beam home [She] sexual his encounter with brother. Beam was the she dirtiest home had ever been in. not was satisfied with sexual encounter reports dirty She the defendant was so he would not allow other sexual en- peers and smelled so bad that his “torment- counters with his brother. Beam states ed him.” relates Beam in- She was prefers homosexual en- [this brother] fight nearly every in day. volved counters to heterosexual encounters. only thing stopped daily this routine fight happened if Beam was be able to wear a clean shirt. When was at the

EDUCATION: defendant’s school [she] residence, Nampa through family file was obtained Beam she noticed that the School District. It was found that the de- members wore almost no clothes. On one repeat grade. occasion, fendant had the first approached the door [she] grade, the fourth his teacher him referred in noticed that defendant was involved psychologist to the school because he was sexual intercourse with an unknown female engaged fighting peers, had diffi- porch. on the front When Beam noticed culty assignments doing school and exhibit- hp her, through waved her and said non- speech. seeing speech ed slow Beam chalantly that he would be with her in a therapist therapist her discontinued reports Mr. minute. that she knew [She] with Beam she claimed work because Beam raping daughter] but she Beam was [the “belligerently cooperate refused to ther- swap- suspected “sexual also a lot of other apy practice at would not home.” among family ping” members. [The IQ February Beam’s' on 1973 was score suspected that outside also Administrator] 87____ grade he level of 2.5 while [T]he engaged of the home Beam various grade read level 1.9. She classi- relationships. reports homosexual [She] him he fied “dull-normal” But did feel retarded but was slow that Beam was not enough special was severe enter edu- home environment. poor due [She] suggested cation. Emotional indicators “good-natured per- Beam a remembers “impulsive, that Beam had tendancies to be easily picked frustrated when son who was (Please aggressive out.” act refer boys.” other copy report attached to presentence.) grade In the seventh (ALCOHOL (c) AND/OR ABUSES again psy- referred school to ... DRUGS): The defendant states when chologist, because of further difficulties using age years he was 14 he started 9-23-75, IQ school. On Beam’s measured marijuana amphetamines regular on a reading 2.4, his grade 77. His level was years age, 2.9, By time he was 16 spelling grade level was and his arith- basis. Furthermore, spent Mr. Beam daily a welfare. drinking heavily on almost he was money a a $50.00 on selling of his welfare most year, began he Also that basis. this, Health habit. Because of day alcohol amphetamines, barbituates. marijuana, workers had protection child and Welfare about usually he earned He states that on family subsisted reports that the Beam drugs gave it selling per month $300.00 cans. garbage collected from food Nampa Police De- he felt the up because year him. The investigating partment was presented further Beam’s father ingesting prison, he was he went to before intox- life lived in an the norm of defendant day That every other basis. on an LSD eight reports that for Beam icated state. three with LSD for year experimented he was intoxicated years his father to ten began ingesting PCP He also months. felt waking moment. Beam nearly every month, ev- marijuana about a smoked once peaceful- only way he could coexist with cocaine and ery day, experimented with get drunk ly his father was to with Furthermore, amphetamines. various this, developed a severe him. From drink a relates that he would defendant supported dependency and he drug/alcohol whiskey every day. McCarty fifth of by stealing from dependency largely this attended Alcoholics prison, the defendant County. Canyon citizens of a Anonymous on Ananymous and Narcotics parents exhibited Finally, Beam’s reports his regular basis. He concerning their care complete lack of quit using prison he wanted to release from family’s resi- physical environment. not do this due drugs and alcohol but could and there filthy beyond belief dence were father and various pressure from his concerning per- little or no instruction following pris- his friends. He states that were allowed hygiene. The children sonal a half a case of beer on release he drank a dirty clothes and go with to school marijuana daily on a basis. and smoked their body odor which offended severe marijuana reports He to me that he smoked Also, must proper diet peers. the lack of a just prior to the commis- laced with PCP defendant’s bearing on the have had some murder. Prior to our inter- sion of this IQ. spiralling downward view, however, continually reported that he environmental All the above-mentioned only slightly intoxicated from the he was defendant first caused the factors marijuana. use of collat- rejected by peers. his One soundly when she “tormented”

eral used the word him. peers treated Beam’s described how apparently little or no The defendant had course, then, forced The defendant was concerning personal model the value of outcasts, many other together with to band personal pos- ownership. appears It engaged in crime. whom were have been and held sessions must obtained the fit- through the idea of “survival of en- defendant’s affect of the The second reports the feel- test.” Beam that he had imprinting have been an vironment must ing his father wanted whatever he self-gratifi- immediate him of the norm of quite nothing defendant was had. When the little or cation. The defendant caring pattern a for himself young, he set him about to teach experience in his this, father stealing his father after his we see from people. Because for other consumption. life of passed engaged out from alcohol has the defendant needs. people to meet his using also did not Apparently the defendant why’s of regarding the significant problem role model biggest have himself. self-sufficiency the defendant ethic or the value ease lies with work de- the de- responsibility. When collaterals understand and financial Most outcast, age a substance years is a social was ten to fendant fendant abuser, contacts thief. All collateral and instead and a became disabled father his involve- surprised as to extremely content to are learning a new trade he became He is described in a violent crime. disability and other forms of ment check collect clownish, good-natured, nonaggressive In concluding II, Part I return my person. Why this supposed new twist to opinion, where, Beam long before we took his Despite character? reports from collat- up Scroggins’ appeal, I observed one “that can, we however, erals see flashes in the jury, hearing testify each on direct and defendant’s life which pos- would indicate then in two cross-examinations, might have sibility of violence. cats, He tortured he well decided the issue differently than did fought every nearly day school, he phys- juries.” two Idaho at 710 P.2d at ically fought girl with friends, reported he 554. To that I now add prosecu- people trying were him, to kill he tor in argument his death penalty engaged in fighting person per- he imposed upon Scroggins recognized that being ceived as rival, romantic he was Scroggins had connived for Beam’s fleeing noted to aggressive have an nature by Idaho, from whereafter would psychologist, school and he talked killing go police to the and inform them of the people he angry with. Shortly after murder which Beam perpetrated. The defendant, arrest of the minor child [a] prosecutor, well Scroggins’ lies, aware of police called the and stated that on the some of which he had clearly demonstrated afternoon preceding the crime Beam and by adept cross-examination, urged also Scroggins arrived at home her and stated such considerations on the Briefly, court. they going were to kill someone. Beam but highly pertinent, this: stated that he was angry wanted to kill [Tjhere is but one conclusion: that someone is that with a baseball bat.... Much of there, he was he the above assisted in that murder noted violence was not instigated right very to its defendant, end later, and then nevertheless, he was still realizing involved with there more violence other wit- than most nesses, began us have to live with. appears It elaborate scheme to defendant great trap lived with a Albert pent- deal of Ray into this crime up anger. get picture To a clearer free himself. defendant, apply we can the above-men- Time and again time he has lied in this experiences tioned to Dr. psycho- Webb’s case; protect himself, lied to lied to make logical report. report indicates the good, himself look he has jury, lied defendant has the inability to feel with Court, he has lied to this he has lied to others, the inability to experience normal presentence investigator. guilt, an impulsive nature, and feelings of time he tells the truth is when the truth hostility. The facts presentence this happens to be Tr., of his assistance. Vol. support seem to Detective theory Newton’s 6, p. (emphasis added). that the defendant along went with what In summing up to the Scroggins jury, the was happening, was unable to feel for the prosecutor earlier contended: victim, and job finished the of murdering And her. Mr. go did police. I’ll why talk about police. he went to the The defendant’s social pathology would What did he talk about when he went to seem to be extremely deep-rooted. The police, when he every- talked about fact passive, that he is aggressive, nonem- thing did, Ray this, Ray Ray did did pathetic, impulsive, and relatively guilt free said, that? He “I moved off to a tree would seem to leave the open door to about and couldn’t look.” He go didn’t any type of person behavior. No predicted help. attempt He didn’t stop this. He that the defendant would be involved with said he was frightened too stop it. He type appears crime but it to this frightened was too stop Ray, too writer that the probability always existed. frightened to help. run for It is my opinion also that the defendant’s personality life-style would But make it he frightened wasn’t too step possible for him to commit similar crimes in words, take his turn. And in his “I the future. started my to take turn.” He wasn’t so at first. mention of knives whatsoever drop Ray that he wouldn’t

frightened of first inter- come out This didn’t said he was too pants down. He said, “Shawn, view, they we not until away. I ask stop him or run afraid to was cut.” girl’s throat know all of the evidence you to look at “Oh, yes, memory gets better. Then his concerning any threats be- out came Ray put knife. it to Ray had the these two. tween everything. Ray did girl’s throat.” that, you you do I believe that when well, why If remember that so they he up nothing, because will come first, very then he tell them that at things to- didn’t They did these were friends. himself he didn’t want to connect good enough friends unless gether. They were everyone though Even with the knife? together night, to be trad- out it, he wanted and knew that he owned meeting girls ing property, to be Ray did it all. togeth- make it look like they it is did doing whatever else er. police he goes in and tells the Lequita

So he McWhirter What did Short with it. He anything clearly have to do They didn’t at that time? talk about her behind her back Ray get said handcuffed plan. They had to about the talked he said—I her down. Then They get and took town. Beam out of point a little bit because belabored this police station to Scroggins down to he said over and important Beam, put the blame put it all on all —then over, happened. He “I saw what Mat- Why? Because Victor on Beam. put her in the water.” her. He Scroggins. drownded He had seen had seen thews knife, the handcuffs. him with the with specifically, him “Just they And asked anything answered, “No, say he didn’t have her He couldn’t And he her head?” him, seen him. They it. they “Did to do with body.” And asked whole said, “I actually this?” And he you see get out of town. They had to saw it.” him while he it on they Then could blame it,” that was the advice gone. “I And you actually see it?” saw

“Did gave. Ray, Wes Short He told “You’ve finally police up. were fed until got to get of town. You’ve night, got and then out They went out there at turn suicide or said, “Shawn, get of town or commit you can’t see from out they do that? going Who’s yourself from in.” can’t see down to there there. You drove of town. He you got he him out you you said were. How do So where Caldwell, Scrog- him over there to description that have such an accurate in a two- with them. Then gins went held under the water until she she was police up at the period they showed you hap- what hour How do know drowned? story they have. there, Shawn, department with you can’t see pened down 6, Tr., pp. 1289-1301. Vol. from there?” a considerable opinion places The Court’s “Maybe you Oklahoma, suggested, The Mr. Twedt 455 U.S. Eddings v. reliance on then, And your eye.” quoting in mind’s saw it 71 L.Ed.2d 102 S.Ct. “Yes, I course, my eye mind’s says, disagree he I extensively from it. do it, When,” said, I “I heard it. he of crimi- correctly saw In this area this is done. good guess pretty occupied But it was High saw it.” has nal law body. right him opened him to take field, having place first knew that opin- down. He He couldn’t look its Furman and Woodson field with He’d been there. body was there. under If has a valid issue ions. they were knew where He’d seen it. He that we do not then it is in order Eddings, find it. notes going opinion it. And we do not. Our duck age 13.8 a mental Scroggins, with police talked about knives with He super- years in his formative years, no officers, first. There was but not at vised the Department of range, your Health physical, appearance, mental Welfare unstable, because his your ingrained unnur- fantasies, sexual your ab- tured and inadequate upbringing, normal assure, behavior would in my although he age had reached judgment, your being victimized in the years, “We ignore cannot the [Eddings] penitentiary by other inmates you unless Court’s admonition ‘youth ” kept is more confined away from other than a inmates, chronological fact.’ Idaho at and of itself a source of cruel 388, 716 punishment P.2d at opinion 1160. Our unusual disparity in the treatment of the two add, To which I everything which has cases.1 only The possible conclusion now been said Eddings about and Scroggins is that the convictions in both cases should be applicable to If anyone Beam. had a has reversed, as each of the defendants has miserable, more pitiful, disgusting and de- requested, and both defendants should plorable early Beam, life than person jointly charged, stand they as first were Eddings is not and it is Scroggins. not been, and always have joint- should be Beam, as true Scroggins, simply did not ly tried at a trial judge before one and one have the mental wherewithal to make the jury thereby let jury one determine —and decisions we expect of a properly normal two, either, which of the if culpable is less brought-up person. Moreover, there ex- than the other. There is and was no Bru- tremely good believe, reason to appar- as And, course, ton circumstance. that one ently prosecutor did the presen- and the jury properly would hear mitiga- matters in investigator, tence that Scroggins was aggravation tion and which would be ad- liar and the schemer who both murdered missible—which is presently not way participated in the murder and up set Beam things being are done. rap. to take the Notwithstanding failed to III. pin all the blame on Beam and was himself The trial court at sentencing hearing felony convicted of by murder reason found thirteen-year- murder of the being thereto, accessory and sentenced to girl heinous, old especially was atrocious death, it certainly is the law that neither manifesting exceptional depravi- and cruel the trial court this nor Court can make ty. finding this expect With one would not findings to the contrary verdicts of the any disagreement. But the court went on jury, and base death a sentence such further find that the murder or cir- contradictory findings. Nor in this case surrounding commission, cumstances its proper was it impose for the Court to exhibited disregard utter defendant upon Scroggins sentence where the human The defendant referred for life. sentencing part in decision based to, course, was none other than Shawn proposition that: Scroggins. jury previously The re- crime, your The your nature of the age, finding Scroggins turned its verdict guilty

intelligence being in level the dull-normal attempted rape, using guilty 1. When I rehearing. wrote the Court should recall the I have since made been aware that case, remittitur in I petition Beam’s the im- rehearing, under Beam filed a has and a pression petitioned ago had not days supporting for a few filed a brief. prose- The activity, (g)(6),duplicate each other. in engaged while criminal knife degree felony-murder recognized com- guilty implicitly of first cutor having been an accesso- only by together reason of combining the two factors pletely ry- argument. All of the “facts” he in his factor, support finding of one relied on to sentencing hear- the close of the Toward finding of the support relied on to he also argued: prosecutor ing, the here, Where, very factor. other considering Lastly, I would ask argued support of a which are facts aggravated statutory circumstances identical finding of one factor are subsections 5 and 6. to consider finding of the urged support of a facts heinous, exceptionally atro- murder factor, overlap factors the two other cious, cruel, exceptional de- manifested aggravat- one should be considered disregard for pravity and exhibited utter ing circumstance. oppor- has human life. The court tunity the exhibits in this mat- to look at importantly, a careful review of More ter, beyond that show a reason- the ones alleged prosecutor’s arguments supporting the facts this con- able doubt support urging the Court “facts” in subsections 5 and 6 are exhib- clusion pursuant aggravating to find factors through 43 and 34. its 61 exhibits (g)(5) (g)(6) reveals that much of his cuffs, knife, picture of the innuendo, specula- argument was based on pictures throat bruises and the of the tion, many of which were and inferences slitting.... pros- verdict. The contradiction was taken to that waste She [the victim] repeatedly drew the court’s atten- ecutor canal, ensued, struggle the knife was pictures depicting knife and the tion to the four to present, and her throat was cut jury slashed throat. The ac- the victim’s while, five times. All this the evidence quitted Scroggins using Mr. a knife. Scroggins shows that Shawn was there. Hence, by repeatedly pointing to the there, footprints he described the His are looking” emphasizing knife and “wicked scene, he could not have known with the resulting a the wounds from the use of exactness he knew the events at that was, effect, knife, prosecutor the encour- scene if he had not been there. The aging judge disregard jury’s the clearly evidence showed that at that acquittal as to the use of a knife verdict point where he claimed to have stood and, instead, his substitute enhancement substantially outside of the murder Scroggins Mr. did use judgment own that scene. authority permits a trial the knife. No edge heWhat did there at the water’s in contra- judge, sentencing, to find facts murder, was that he assisted in that jury verdict. vention of a whether he held Mondi Lenten under wa- times, 4 ter 3 or whether he waited for adduced at trial es- Clearly, the evidence blow, give Albert Beam to the final death point hand- Scroggins that at one tablished knife, gave he whether whether he It is also true cuffed victim. Beam, encouraged Albert there is but Scroggins attempted jury found there, conclusion; one that is that he was However, prosecu- as the rape the victim. right he assisted that murder to its out, Scroggins and Beam had pointed tor later, very upon realizing and then end mercy. at their Had the victim witnesses, began there were other to, have been no rea- there would wanted Ray trap scheme to Albert elaborate rape it- not have committed son he could Beam into this crime and free himself. returning jury, by a verdict self. necessarily guilty attempted rape, as to matter, preliminary As a it is clear that he did Scroggin’s testimony that believed Scrog- sentencing in the context of this rape. clearly, proceed not with the Just gins, aggravating circumstances the two contrary not 19-2515(g)(5) testimony to the did separately described in I.C. Beam’s § convince jury beyond a reasonable tue of the being murder one defined as doubt raped girl. murder of the degreé first under I.C. 18-4003(d) accompanied § specif- Certainly, the evidence also reflects that ic intent to cause the death of a human Scroggins was at the scene of the crime. being. He not admitted presence his at the scene, crime reported the crime to the 19-2515(g)(7) provides: I.C. § authorities on the following morning and (g) The following are statutory aggra- insisted taking them to the murder vating circumstances, (1) at least one Hence, scene. involvement which must be found to beyond exist murder, in the the evidence which jury reasonable doubt before a sentence of accepted reflects only accompanied that he death can imposed: creek, victim to the that he handcuffed attempted rape her, (7) The murder was one defined as he did not in proceed her, fact rape murder of degree the first 18- § he owned the knife used he did although 4003, I.C., (b), (c), (d), (e) (f), §§ knife, use reported and that he it was accompanied specific with the crime the following day. While these facts intent to cause the death of a human are clearly sufficient to support being. verdict that Scroggins aided and abetted a felony murder, it situation, does not In follow that another when a murder evidence beyond established committed in reasonable the course perpetration doubt that Scroggins’ conduct was within an inherently dangerous felony the requirements of I.C. 19-2515(g)(5) found §§ defendant intended to cause (g)(6). the death of a being, human the statute provides that such finding aggravat- is an Osborn, In State 102 Idaho ing justifying circumstance imposition of (1981), P.2d 187 this Court concluded: penalty. heinous means extremely wicked or Florida, Enmund v. evil; shockingly U.S. that atrocious means S.Ct. (1982), 73 L.Ed.2d 1140 outrageously vile; the Unit- and, wicked and ed Supreme States cruel held that designed means to inflict high eighth degree amendment pain permit does not imposi- with uttered indifference to, tion the penalty of death enjoyment of, or even on one who “aids suffering the of a felony others. abets the What is course intended to of which a be included are murder capital by those committed others crimes where the but who actual kill, does kill, commission of not himself capital attempt the felony to or was ac-1 companied by intend that a killing place such take additional or acts as to set apart the crime lethal force employed.” Hence, from will be the norm of un- Enmund, capital der felony a pi- killing felonies —the murder conscienceless or is not tiless crime an which offense which unnecessarily may punishable be by tortu- rous to the victim. death unless finding a is first made a particular specific defendant intent Although the surrounding circumstances to kill. the murder and the murder itself particular heinous, acts justifying 19-2515(c) (d) I.C. provide: §§ conclusion were not to attributed (c) person Where is convicted an of by his jury. While acts justify which may punishable be by offense murder, the verdict of first degree they do death, sentence death not shall be not requirements fulfill the of I.C. 19- §§ imposed unless the court finds at least 2515(g)(5) (g)(6). (1) one statutory aggravating circum- Equally clear, keeping while well in mind stance. Where the court finds the statu- verdict, the jury’s the trial court erred tory aggravating circumstance the court finding aggravated circumstance vir- shall sentence the defendant death kill, only mitigating so act or had such an intent to court finds that

unless the may presented proceed circumstances which be next then does the court outweigh gravity any aggravating step, requiring that the court find at imposition found and make circumstance (1) statutory aggravating least one circum- added). unjust. (Emphasis of death stance. (d) pen- In all cases in which the death light of Enmund and I.C. 19- §§ shall, may imposed, be the court alty (d) 2515(c)and it is clear that a verdict of conviction, in- presentence after order a felony coupled murder with a court’s find- according vestigation to be conducted specific ing that the defendant had the prescribed by law procedures such as are being pertains only intent to kill a human a sentenc- and shall thereafter convene step process and should first hearing ing hearing purpose for the reapplied step. not to the second Our be arguments all relevant evidence statutory requires scheme that once a crim- aggravation mitigation counsel penalty eligible inal defendant is death at hearing, At such the state offense. aggravating factor must be least one defendant shall be entitled to and the “aggravate” found. the word means Since present aggrava- evidence in all relevant worse, serious, “to make more or more mitigation. any party tion and Should severe,” obviously aggravating factor mitigating present aggravating or evi- something must be more than the basic dis- previously dence which has not been unaggravated Since federal law opposing party parties, closed or offense. shall, requires finding specific as a upon request, adjourn the court intent hearing party desiring until the to do so precedent imposing the death condition opportunity has had a reasonable to re- penalty felony murder on one convicted of spond to such evidence. Evidence admit- requires and since Idaho law that an addi- ted trial shall be considered and need found aggravating tional factor must be repeated sentencing not be at the hear- where a criminal defendant is “convicted of ing. Evidence offered at trial not may punishable by an offense which be may repeated amplified admitted be if death,” fundamentally permit it is unfair to (Em- necessary complete the record. very circumstance that makes the de- added). phasis (i.e. penalty eligible having fendant death Therefore, the court make sepa- must two specific intent to cause the death of a findings, rate and distinct the first of being) operate human also as a circum- pen- which must be made the words, before aggravation. stance in In other alty step can be considered. In the first very finding that makes a eli- defendant the court must ascertain whether the of- judge consider which gible to have the fense of which the defendant stands con- aggravating apply should factors may punishable by victed is one “which be imposition again justify used Enmund, explained supra, As death.” penalty. the death felony killing murder is not such an of- that a defendant We must remember killed, fense unless the defendant himself felony-murder does not come convicted of a attempted to kill or a kill- intended that persons upon within that class of whom ing place take or that would lethal force imposed be the court death can unless first Therefore, the employed. be district court specific finds that the defendant had the must determine whether the defend- first specific If intent to intent to kill. it is the acted or had such an intent. If ant so eligible to kill which makes the defendant finding court cannot make such a penalty considered for the death and be not fall that class of defendant does within thereby requires the court consider persons “convicted of an offense which circumstances; is statutory aggravating may punishable by out in be death” as set If, specific intent as 19-2515(c) (d) improper to use that same how- I.C. and above. §§ ever, aggravating did factors. the court finds that the defendant one of case,

In present Scroggins was con- facts, and, standard is at odds with the victed of aiding abetting a felony mur- moreover is inconsistent with Cabana v. — jury der. The Bullock, found -, that Scroggins did not U.S. 106 S.Ct. directly (1986), commit aided, the crime L.Ed.2d 704 which in point abet- decision ted encouraged its of time followed the commission. As the release of Scroggins. declared, particular, aiding Enmund sug- Solicitor General abet- ting gests felony a murder that under Cabana this specific without the Court should uphold intent to kill or “the trial court’s intent that a conclusions re- killing take place specting personal culpability Scrog- that lethal force will employed be not, gins” notwithstanding does any circumstances, under verdict of the permit imposition contrary. of the death penalty. For a felony-murder type to be the of offense Without mentioning that Cabana became which will make eligible the defendant for opinion High of the expe- Court on the capital punishment, finding that the de- diency of the Chief joining Justice it to requisite specific fendant had the intent is five, majority against make a as four preliminary indispensable step dissenters, the Solicitor General has asked inquiry further aggravating circum- us to holding grant embrace its a re- Hence, stances. to the extent that I.C. hearing the end result Scrog- toward 19-2515(g)(7) is “statutory denoted as a § gins may opportunity have the same aggravating circumstance” such denotation suffer execution as now awaits Beam. The is finding inaccurate. A felony murder Solicitor General concludes the eval- State’s coupled with a further finding the defend- uation of the situation: ant specific had the operates intent to kill case, A Ray codefendant Albert place a criminal defendant class Beam, has been sentenced to death and persons “convicted of an which offense upheld his death sentence on review. may punishable but, be by death” because Respondent present believes the defend- finding necessary place is the de- more, equally, ant if culpable. is fendant within that persons, class of it My separate opinion in Scroggins may have repeated purposes be for finding cannot helped in the formulation of the state’s aggravating Therefore, circumstance. contention that is the more cul- where a defendant stands convicted of felo- two, pable certainly not less ny murder and the court finds the defend- But, culpable wholly than Beam. unmen- ant specific intent kill or other- my sug- tioned the Solicitor General standard, wise meets the Enmund I.C. gestion if spared, has been 19-2515(g)(7) should not be deemed an § justice then requires that less social aggravating circumstance. I would hold culpable Beam likewise must be spared— case, that in such a the court must find at concept proportionality else the whole one, least beyond other factors upon my turned its head. What earlier impose reasonable doubt in order to a sen- opinion suggested as to Beam’s tence of death. proportionality, fate and total failure of defendants, even as between these two has DENIAL ON OF FOR PETITION fully now materialized. In the view of REHEARING many practitioners it is believed that the BISTLINE, Justice. gener- State—in the office of its attorney quest al—should be the leader in the for as Attorney The Solicitor General of the justice much Proportionality attainable. Office, rehearing by petition General’s key justice where factor is concerned. brief, and supporting urged has us Court, opinion being my petition of the “No” is vote on besides the state’s previous contrary rehearing. conflict cases for with Just as it did in v. State legislative intent, Windsor, creates an unwarrant- 410, 110 Idaho 716 P.2d 1182 review, (1985) denied), ed (petition rehearing new standard of factual which for day reject respect With all deference and to our Court this does well the Solici- brethren on the Bench of the United to declare tor General’s invitation ourselves Court, regret I Supreme States that I can by every High move which the Court bound they neither understand what have said may high game. make in its stakes chess court, they as a where now stand as a well-guided by We are the remarks they may going in this court or where (then) Shepard, Justice with Justice Chief important involving capi- the law area of concurring, eight years ago: Donaldson penalty. the death tal cases and State my judgment, today this Court errs in 766, 773-75, Lindquist, 99 Idaho value, accepting at face suffi- without (1979). P.2d 108-10 analysis, seriously cient what a divided purported- Supreme United States Court Georgia, Presnell v. 439 U.S. 99 S.Ct. Woodson_ (1978), ly stated in Mr. Justice 58 L.Ed.2d 207 was decided less Rehnquist gone eight years ago. very states: “The has Court than That is a short life, pillar post, general- from with the result that time in the course of a human predictability upon ly, and even much shorter where the life the sort of reasonable courts, span under consideration is that of a hold- legislatures, ap- which trial ing Supreme pellate necessity rely declared Court of the courts must of has United States. completely been all but sacrificed.” See Ohio, supra, (Rehnquist, Lockett v. J. deserving The Presnell case is of the White, dissenting). Mr. Justice in Lock- attention, stumbling closest as it was a ett, has described the “about Court’s way block in the of the Cabana decision— face.” ... but not too much of an obstacle for five of justices. Georgia utilizes a two-trial procedure penalty jury in death cases. The All of this leads to consideration of guilt-inno- first hears and determines the by today’s majority held Woodson to be trial, cence and then hears evidence and controlling. There three members of the penalty imposes sentence at the trial. The join which, opinion Court in an for some High opinion in per Court’s curiam Pres- reason, is “plurality.” denominated the nell, Georgia on certiorari from the Su- “plurality” opinion clearly That states Court, preme deserving of close consider- reject “we argument “the im- [that ation: position of the death penalty is cruel and punishment”]. unusual PER p. 428 U.S. CURIAM 96 S.Ct. 2978. Two other members of Petitioner was indicted and found disagree the Court with that view and guilty by jury capital offenses of three penalty state that the death ais cruel bodily injury, and —rape, kidnaping with punishment and unusual under cir- aforethought. murder with malice Un- law, cumstances. Three other members of jury may impose the Georgia der joined court dissented and Woodson penalty if it finds that the offender White, J., voting for affirmance capital felony under at least committed Blackmun, of the court below. J. statutorily aggravat- dis- 1 of 10 enumerated “excruciating on the sented basis of ing circumstances. Ga.Code 27-2534.- § expressed in agony spirit” 1(b) (1975). Fur- such circumstance man. relevant here is that denominates [capital]

What madness is this that offense ... was com- “[t]he thought process by engaged such some members mitted while the offender was capital of that as the “law of the land” the commission another 27-2534.1(b)(2). enjoins felony....” on those of us the law not § attempting under- only the task of penalty phase petitioner’s At the stand, duty responsibili- but the clear trial, was instructed that it could “reasoning.” ty apply its result and (1) rape if impose penalty the death peti- while offense committed engaged in reversing convictions, tioner was the commission of In the Mr. Justice murder, (2) kidnaping bodily with in- Black wrote for a unanimous Court: jury if that offense was committed while “It is as pro- much a violation of due petitioner engaged in the commis- prison cess to send an accused to fol- (3) rape, sion of for murder if that lowing charge conviction of. on which petitioner offense was committed while he was never tried as it would be to engaged in the charge commission of “kid- convict him that was harm, naping bodily aggravated with never made.... To conform to due sodomy.” jury law, process petitioners found that all three were enti- during offenses committed the com- validity tled to have the of their convic- specified appraised mission of the additional of- tions on consideration of the fenses, imposed and it three death sen- case as it was tried and as the issues petitioner. tences on were determined in the trial court.” Id., 201-202, 68 S.Ct. at 517. appeal, Supreme the On Court of Geor- pro- principles These fundamental gia held that the first two death sen- apply cedural fairness with no less imposed by jury tences the could not penalty phase force at the of a trial in a 49, 52, 64, stand. 241 Ga. 243 S.E.2d capital they guilt- case than do in the 496, 501, (1978). sentences de- Both determining phase criminal tri- pended upon petitioner’s having commit- Florida, al. Gardner v. Cf. 430 U.S. rape, ted forcible and the court deter- (1977). 97 S.Ct. 51 L.Ed.2d 393 In jury properly mined that had not light principles, of these the death sen- petitioner convicted of that offense. with tence for the crime of murder mal- addition, Supreme In Court of aforethought ice stand. cannot Georgia rely held that State could not petition Insofar as the for certiorari upon sodomy constituting bodily challenges kidnaping the conviction of injury kidnaping. associated with the bodily injury imposition and the with Nonetheless, despite the fact sentence, granted along it is the death jury had been instructed that the death petitioner’s proceed with motion penalty depended upon for murder judgment of the pauperis. The finding peti- that it was committed while forma Supreme Georgia affirming Court engaged “kidnapping tioner was with kidnaping bodily inju- conviction for harm, (em- bodily aggravated sodomy” murder is ry and the death sentence for added), phasis Georgia Supreme reversed, and the case is remanded for upheld penalty Court im- third death proceedings not inconsistent with further posed by jury. It did so on the opinion. petition chal- Insofar as that, jury theory despite the lack of a murder, lenges convictions for kid- finding in the rape, of forcible evidence naping, statutory rape, it is denied. peti- supported record the conclusion that Presnell, supra, 439 It is so ordered. offense, which guilty tioner was of that (foot- 14-17, 235-37 U.S. at 99 S.Ct. at bodily in turn established the element omitted) (bold added). emphasis

409 role in determining equiva- sentence was Florida, 782, Enmund v. 458 U.S. lent to its in determining role sentence”— 3368, 102 (1982)— S.Ct. 73 L.Ed.2d 1140 which assumption it longer declared no Bullock, Jr., killed, that Crawford at- tenable. tempted kill, or intended to kill Mark Dickson, and thus deserves to die. The

Caldwell v. Mississippi, -, 472 U.S. Court reaches that 2633, by paying lip result 105 (June, 1985), S.Ct. 86 L.Ed.2d 231 service to significance is even fact, more recent constitutional than Presnell —in has of not attained Enmund anniversary. relegating its first while Jus- Enmund Blackmun, tice writing findings position in judicial Cabana for him- after- self and two justices, other immediately thought. The nature of the Enmund pointed majority’s out the short memory however, findings, dictates who must it, and respect lack of precedent: case make them and point at what in the Term,

Last in sentencing Caldwell v. Mississippi, process they must be made. U.S. -, 472 2633, 105 S.Ct. 86 L.Ed.2d The Eighth requires Amendment (1985), (a 231 case not even cited findings Enmund be made at the trial controlling ante), Court in its opinion, court level before the sentence condemns we recognized institutional limits on an a defendant to death. Court’s mis- appellate ability court’s to determine reading of Enmund threatens a retreat whether a defendant should be sentenced from the constitutional safeguards on to death: capital sentencing process that intangibles “Whatever jury might acknowledged Court has in the decade consider in its sentencing determina- since Gregg Georgia, 428 U.S. tion, few gleaned can be ap- from an (1976). S.Ct. 49 L.Ed.2d 859 Caba- pellate record. inability This to con- na, (Blackmun, supra J., (em- dissenting) front and examine the individuality of added). phasis the defendant would be particularly That Justice percent Blackmun was 100 devastating to any argument for con- correct in his assessment of the Cabana sideration of what this Court has majority’s incomprehensible and inexcusa- compassionate termed or miti- ‘[those] ble mention, failure to attempt let alone gating factors stemming from the di- of, distinction Caldwell. verse frailties of humankind.’ When held we that a quick point Justice Stevens has a out consti- defendant right tutional culpability to the that Enmund1 Mississip- under consideration factors, pi such law clearly wisely we has been left to a as “the envisioned decisionmaker that is ‘express consideration best able to would occur among the conscience of present community sentencers who were on the hear the arguments question (Cita- evidence and ultimate life or death.’ Id., omitted.).” see the -, Cabana, (Stevens, tion supra witnesses.” (citations J., S.Ct. at omitted; dissenting). this, inter- What madness is polation original). then,2 in Supreme that the Court of the Unit- States, Caldwell, That ed ignoring statement in while Caldwell is not an Presnell, misapplying disquisition forget abstract not to appellate on En- courts mund, generally. concerns, gratuitously It has taken particular, itself preach Mississippi institutional Supreme Supreme limits Court Court Mississippi may capital ignore Mississippi that it Today, statutory cases. law ignores wishes, the Court recently if it necessary those stated make find- ings limits and holds Mississippi paper from a Su- record which are re- preme make, may Court competent quired balancing equa- the life-or-death record, paper on a findings required tion. What Shepard Justice wrote Florida, 1. Enmund v. plagiaristic 458 U.S. 102 S.Ct. 2. The author concedes a use Jus- (1982). 73 L.Ed.2d 1140 Shepard’s language, supra. tice Creech Creech, quoted supra, absolutely ap-

plicable. long How Cabana will sway hold High anyone’s guess.

Caldwell lasted less then year. one

716 P.2d 1182 Idaho,

STATE of Plaintiff-Respondent, WINDSOR,

Karla Yvonne

Defendant-Appellant.

No. 15486.

Supreme Court of Idaho.

Dec. 1985.

Rehearing April Denied 1986. notes because of the that “Just as Eddings constant confinement. was not a normal Idaho at sixteen-year-old, 716 P.2d at 1161. was not a nor- mal eighteen-year-old. Eddings, Like earlier, As I I stated am not troubled in ‘care, deprived had been of joining judgment Court’s to set aside parental concern and attention that chil- the death penalty. I greatly am troubled dren deserve.’ Eddings, Also like Scrog- opinion Beam’s case the for the gins’ mental and development emotional Court did not concern itself the sanie were at a level well below chronological considerations. goal of proportionality age.” is not advanced by the appellate extreme

Notes

notes kidnaping a necessary to make the harm sufficiently aggravating circumstance to majority was well aware of Cabana justify the death sentence. Presnell, denigrat- what it had held in one, Arkansas, holding ways: 333 U.S. 68 ed its own two Cole (1948), accepting any responsibility, but instead petitioners S.Ct. 92 L.Ed. Court,” casting of one offense but it on to the “Presnell were convicted at trial established an though affirmed such nomenclature their convictions were Supreme identity separate from that of the Supreme of Arkansas on the basis Court States, two, by indicating of the United in the record that Court of evidence appeared saying offense on that the “Presnell they committed another jury’s constitutional not been instructed. to assume that which the

Case Details

Case Name: State v. Scroggins

Court Name: Idaho Supreme Court

Date Published: Apr 29, 1986

Citation: 716 P.2d 1152

Docket Number: 15457

Court Abbreviation: Idaho