State v. Sivak

P.2d 413 Idaho, Plaintiff-Respondent, STATE of SIVAK, Defendant-Appellant.

Lacey

No. 17797. Idaho. Court of Dec. 1990. March Rehearing Denied

i.

THE BACKGROUND AND PRIOR PROCEEDINGS. Sivak I and II Sivak state the back- Nevin, Seiniger, Herzfeld, Kofoed and ground of prior proceed- this case and the Boise, defendant-appellant. David Z. ings up to resentencing directed in Si- Nevin, argued. vak II. Jones, Gen., Atty. Lynn Jim and E. In resentencing Sivak following the re- Thomas, Gen., Boise, plaintiff-re- Sol. II, mand in Sivak the trial court considered Thomas, spondent. Lynn argued. E. prior case, hearings from in this including testimony by the husband of the JOHNSON, Justice. deceased victim testimony by rep- and employer resentative of the of the deceased This is a death case that has victim. The husband impact described the subject prior appeals been the of two of the victim’s family death on her Sivak, this Court. State v. 105 Idaho position stated that if he pass (1983) (Sivak I) 674 P.2d 396 Sivak Sivak, sentence on the sentence would be State, (1986) 731 P.2d 192 representative death. The employer of the (Sivak II). In upheld Sivak this Court described the effect gasoline on the local both of Sivak’s degree convictions for first industry station manner which the murder and the death imposed by sentence victim was killed. II, trial court. In Sivak this Court resentencing In following the re- vacated the trial court’s death sen- II, mand in Sivak the trial court tence and also con- remanded the case for resentenc- mitigating sidered ing. Following concern- II, the remand in Sivak ing Sivak that during occurred his incarcer- again trial court sentenced Sivak to death. following ation his conviction. The trial Because we conclude that the trial court court also by considered evidence offered weigh failed to and miti- the state by of the concealment Sivak of a gating required by circumstances as dangerous weapon in during his cell his Charboneau, Court in State v. imprisonment. 774 P.2d 299 again we vacate In resentencing death, Sivak to the trial the sentence and remand the case to the court found mitigating “that circum- resentencing. court for We also: outweigh stances do not gravity give 1. the trial court instructions to aggravating circumstances so as to make guide the trial court resentencing con- unjust imposition penalty.” of the death cerning the impact victim statement appealed only the death sen- by made husband of deceased imposed by tence following the trial court victim; II, the remand in Sivak but also his convic- 2. hold proper that it was for the trial tion, raising several issues that were re- (a) court to by consider statements made solved this Court in Sivak I and Sivak representative of the deceased victim’s II. employer, (b) concerning evidence activities after his conviction and before II. him, (c) trial court resentenced evidence presented prior sentencing THE TRIAL COURT DID NOT WEIGH hearings; THE AGGRAVATING AND MITI 3. conclude GATING RE 19-2515(c) CIRCUMSTANCES AS does QUIRED IN eighth amendment; not violate the STATE V. CHARBO NEAU. reject arguments the other made appeal Sivak on this having as previously State v. decided been resolved in April 4, 1989, Sivak I and Sivak II. this Court on more than five resentencing after the trial court’s IV. months II, following the remand II, IT PROPER UNDER SIVAK WAS trial court this Court held “the FOR THE TRIAL COURT TO CON- death, if the the defendant to sentence THE OF THE SIDER TESTIMONY mitigating that all the cir- trial court finds OF THE DE- REPRESENTATIVE outweigh gravity the cumstances do not VICTIM’S EMPLOYER. CEASED aggravating the circumstances each of also the Sivak asserts that trial imposition of un- and death found make court should not considered the testi have 153, 323. just.” 116 Idaho at 774 P.2d at mony representative of the of the deceased trial in It clear that the court resentenc- employer impact victim’s as to the weigh the ing to did not all Sivak manner of the victim’s death on the local against each of mitigating circumstances disagree. industry. gasoline station We separately aggravating the testimony security This concerned the by Charboneau. We under- required as employ- employers that and their measures resentencing the at time of stand that the protect considering taking to ees have our did not the benefit of against to the themselves incidents similar Nevertheless, in we opinion Charboneau. in this case. In one led murder the death have no alternative but to vacate II, specifically rejected a this Court Sivak resentencing as and remand for sentence challenge this testi- to the consideration of Fain, 82, 100, in 116 Idaho we did State v. mony grounds on it not violate did 252, (1989). We instruct the 774 P.2d 270 law, rights process to due to a weigh to trial court to free from fair trial or be required by mitigating circumstances as 112 punishment. and unusual Idaho cruel resentencing when Sivak. Charboneau 213, P.2d at 208. 731 have us characterize this

Sivak would III. impact testimony statement” as “victim ruling in

in on this issue order to avoid in apply II the rule Booth v. NOT THE TRIAL COURT SHOULD Sivak do. This we are unable to Maryland. THE VICTIM HAVE CONSIDERED impact statement Booth one victim OF THE DE- IMPACT STATEMENT contained required by statute and two HUSBAND. CEASED VICTIM’S types of information: the trial court Sivak asserts First, personal character- it described the testimony not considered should have victims and the emotional istics of the husband concern of the deceased victim’s family. Sec- impact of the crimes on ing impact death on her of the victim’s ond, family it forth the members’ set family and his recommendation of characterizations of the opinions and agree. penalty. We crimes and defendant. 2533, 502, S.Ct. at 96 testimony prohib- It U.S. at 107 is clear that this 482 Maryland, 482 L.Ed.2d at ited Booth v. (1987) 107 L.Ed.2d 440 S.Ct. 96 employer's repre- 149-50, 774

by Charboneau, 116 Idaho impact was not a victim sentative here now we Although P.2d at 319-20. have to in referred sense statement re- error rule with adopted harmless impact society, on It related to Booth. impact gard the use of victim statements and the impact on the victim not to the Paz, (State 798 P.2d v. the rule of stare family. Under victim’s ruling our (1990)), decisis, we the trial court of this advise must follow we II, “manifestly of the considera- unless impropriety view issue evidence, proven over time wrong” “has order avoid or tion of this unwise,” departure unless or reviewing unjust matter if anoth- necessity of this “ ‘necessary vindicate II from Sivak case. appeal er results remedy V. principles obvious law plain, ” injustice.’ Bethke v. Idaho continued TRIAL PROPERLY CON- THE COURT Association, Loan &Sav. THE EVIDENCE SIDERED (1969); Salinas IN PRESENTED PRIOR SENTENC- Viestra, ING HEARINGS. Idaho, Guzman, (1985); Su (filed Nov. preme Court No. resentencing asserts 1990). II the following the remand in have trial court should not considered has Supreme Court The United States presented prior evidence pro of Booth to extended the rationale hearings. disagree. We in a death the consideration hibit concerning harm of information II The remand this Court by a public murder. occasioned resentencing with our was consistent it that make clear to us dissents Booth While directed the trial court opinion. we Supreme sharply was divided the Court mitigat- present to allow Sivak to additional concerning the case the extension of that evidence, ing did not direct that the we coverage eighth pro of to the amendment Ex- sentencing process repeated. be entire dissent, type this of evidence. In hibit above, cept as we have noted the considera- White, with whom Chief Justice Justice by the court of the evidence tion Rehnquist and Sca and Justices O’Connor prior sentencing hearings presented joined, lia said: proper. may that the not It is no true State doubt encourage rely on a the sentencer to VI. in deter- factor such as the victim’s race mining ap- the death whether 19-2515(0 DOES NOT PRECLUDE I.C. § why I to propriate. But fail see THE INDIVIDUALIZED SENTENC- cannot, chooses, it as a if include REQUIRED BY THE EIGHTH ING particular- consideration the AMENDMENT. harm murder ized that an individual’s 19-2515(c) that Sivak asserts I.C. § par- to and in society causes the rest of sentencing re precludes the individualized family. ticular to his eighth dis quired amendment. We 107 S.Ct. at U.S. agree. (White, J., dissenting) L.Ed.2d at 457-58 19-2515(c) provides: I.C. § omitted) (foot- added) (citation (emphasis (c) person Where a is convicted of omitted). note punishable by may which be offense predict We or not cannot whether death, of not be a sentence death shall Supreme Court will extend the rationale imposed the court finds at least unless prohibit testimony Booth to as that such (1) statutory aggravating circum- one employer. representative of the victim’s the court a statu- stance. Where finds can say All we is that the court tory aggravating circumstance the remand, yet not cau- has done so. On we death shall sentence the defendant carefully the tion the trial court to consider mitigating finds that unless court significance repre- testimony presented be circumstances in decid- employer sentative the victim’s outweigh gravity any aggravating ing give any weight it in resen- whether to imposition found and circumstance make tencing clarify In Sivak. order to unjust. death the federal record for this Court 262, 271, Texas, 428 Citing this Jurek v. in the event of the review of courts L.Ed.2d following resentencing, instruct case we this is an argues that statute specifically whether the trial court to state inadequate fulfilling vehicle for the consti- considered in resentenc- this obligation sentenc- to allow ing tutional Sivak. of all if argues ers “to consider on the basis relevant that one of the at least why aggravating not specified evidence a death sentence circumstances imposed, penal- 19-2515 is found to why be also should exist the should but it ty imposed must be court unless the finds imposed.” The bases mitigating that the circumstances make im- (1) argument places are: the statute position unjust. of death defendant, Sivak contends (2) proof it on the burden empowers the sentencing judge mandatory presumption includes a death, sentence the defendant even if imposed mitigation “shall” be unless mitigating outweigh circumstances outweigh aggravation is found each of the circumstances. imposition unjust. make of death found to interpretation Under this of the last sen- rejected previously This Court has 19-2515(c), tence of if the trial court I.C. § 19-2515(c) argument violates I.C. § mitigating finds places eighth amendment because statutory aggravat- outweigh each of prove burden on defendant the exist- found, ing circumstances that are the court mitigating circumstances ence of that out- imposi- must then determine whether the any aggravating weigh circumstance that unjust. tion of the death would be found. State v. Conversely, if the trial finds that outweigh mitigating circumstances do not Charboneau, this Court said: statutory aggravating at least one of the 19-2515(c) presumes I.C. that a life § found, penalty circumstances the death degree is sentence the sentence first may imposed. not be Only ag- murder. if at least one of the state contends its brief the gravating listed in circumstances I.C. ordinary meaning of sentence of the last 19-2515(g) exist a beyond is found to § 19-2515(c) weight I.C. “is of § amay reasonable doubt sentence of extenuating circumstances would automati- imposed. only death be It is then that a cally imposition penalty of make the death coming of defendant has the burden for- unjust mitigation in cases where the mitigating with circumstances. ward compelling aggravation.” more than Un- Id. interpretation, der this the trial required only to determine whether the on the defendant to burden outweigh each of mitigating circumstances present mitigating circumstances arises statutory aggravating circumstances prosecution proves only beyond if the weighing found. The result of deter- least reasonable doubt that at one of imposition mines of the death whether ex statutory aggravating circumstances penalty unjust. mitigating If the circum- Osborn, v. ists. As this Court said State outweigh aggravating each circum- stances 405, 187, 417, P.2d 199 631 found, imposition the death stance of (1981): merely “The defendant’s burden is unjust. mitigating penalty would be If the raise, in the hear aggravation-mitigation to aggra- outweigh not each circumstances do ing, any might possibly factors tend found, imposition vating circumstance mitigate culpability to his offense.” penalty is just. of the death mitigating present If are no circumstances blush, interpreta court, first state’s required At ed to the the court 19-2515(c) appear tion impose mitigating If of I.C. would penalty. death § court, imposition “and make the words make presented circumstances are Ordinarily, surplusage. we unjust” death the court sentence the defendant death, give a statute effect to all only if must construe the court finds that all the can, if not construe it outweigh parts, of its we mitigating circumstances do not surplusage makes way in a mere gravity aggravating of each of the cir Alkire, 79 provisions. v. imposition make one its State cumstances found and (1957); 334, 338, 341, Charboneau, 343-44 116 at Idaho 317 unjust. Idaho 688, Idaho Miller-Stephan, 107 153, Hartley v. 774 P.2d at 323. 325 690, 332, (1984)(overruled mitigating 692 P.2d 334 evi consider all relevant S.Ct., grounds, dence,” U.S., at-, Ferry other Archer v. Bonners 110 494 Datsun, (footnote omitted), 786 P.2d 557 and concluded (1990)). However, princi- there is another Pennsylvania that because the statute ple statutory construction that must be preclude from con did not the sentencer evidence, considered here. Criminal statutes must sidering any type mitigating strictly id., at-,-, S.Ct., 1083, 1084, construed. (citing Idaho at 774 P.2d at 323 principle. In it was consonant with that Thompson, v. addition, the Court concluded (1980)). Thompson, the Court “impermissibly statute ‘manda ” principle said: extends not “This tory’ as that term was understood: crime, the elements Carolina, substantive but Woodson v. North 428 U.S. potentially also to the sanctions involved.” (1976), 96 S.Ct. 49 L.Ed.2d 944 101 Idaho at 614 P.2d at 977. Louisiana, Roberts 49 L.Ed.2d 974 be Construing the last sentence of I.C. automatically impose cause it did not 19-2515(c)strictly in favor of defendants upon types conviction for certain cases, accept in death we the inter at-, U.S., S.Ct., of murder. 494 pretation advanced the state. If the at 1084. The same is true of the Arizona mitigating trial court finds that the circum statute. presented outweigh stances statutory each Similarly, Boyde California, supra, aggravating found, impo circumstance upheld pattern jury instruction which unjust. sition of the death would be you stated that conclude that “[i]f We also reconfirm the conclusion outweigh we reached in Charboneau that circumstances, mitigating you shall im 19-2515(c) eighth does not violate § pose U.S., a sentence of death.” See 494 particular amendment. No formula for -, S.Ct., (emphasis 110 at 1195 considering mitigating circumstances omitted). specifically The Court noted compelled by eighth amendment. This that “there is no ... constitutional re is borne out the recent decision of the quirement sentencing of unfettered dis Supreme in Court Walton v. Arizona: jury, cretion in the and States are free to Walton insists because shape structure and consideration of mit 13-703(E) provides that the court § igating evidence ‘in effort to achieve a impose “shall” the death if one equitable more rational and administra aggravating or more circumstances are ” Id., at-, penalty.’ tion of the death mitigating found and circumstances are S.Ct., (quoting 110 at 1196 Franklin v. leniency, held insufficient to call for 164, 181, Lynaugh, 487 U.S. 108 S.Ct. pre- statute creates an unconstitutional 2320, 2331, (1988) (plu 101 L.Ed.2d 155 sumption proper that death sen- rality opinion)). tence. Blystone Our recent decisions in arguments Walton’s in this case are no 299, Pennsylvania, v. 110 494 U.S. S.Ct. persuasive in Bly more than those made (1990), Boyde 108 L.Ed.2d 255 Boyde. stone California, 494 110 U.S. S.Ct. — -, -, (1990), 108 L.Ed.2d 316 foreclose (1990). 111 L.Ed.2d 527 Blystone rejected this submission. a challenge jury Following to a Supreme instruction based on a the rationale of the Pennsylvania Walton, requiring impo- statute in we conclude Court that Sivak’s arguments sition of the death in per if this case are no more circumstances were found to exist but no suasive than those made in Walton. mitigating 19-2515(c) present. preclude circumstances were does not the trial pointed considering any mitigat requirement type We out that court from “[t]he evidence, capital ing require of individualized in nor it does the trial by allowing jury automatically impose upon cases is satisfied court a cer- L.Ed.2d 440 State Charbo- convicted for who has been defendant (1989). neau, 129, 774 P.2d 299 The statute allows types of murder. tain consider is advised to not The trial court exercise its discretion court the trial remand, at the same this evidence on but leg- by the structure established within the consideration of time the Court notes that circum- considering mitigating for islature in might harmless error such evidence has said stances. Paz, light of State v. requires no more. eighth amendment Johnson, writing ma- here for the VII. Justice disagree- jority, registered his heretofore RAISED BY SIVAK THE OTHER ISSUES harmless application ment with BEEN RE- PREVIOUSLY HAVE in impact statements error rule to victim BE RE- NOT AND WILL SOLVED capital murder v. Paz: eases CONSIDERED. State v. prior our asks us to reconsider (1989), vacating a I and II on wide rulings in Sivak sentence, part because was to do so. range of issues. We decline hearsay rule for the violation of the pur- II was remand by the to admit a letter written resentencing, not to allow Sivak pose father, I victim’s said: his conviction. begin again his assault on as the decision In a matter as awesome penalty, a strict impose the death procedures for with the compliance VIII. a well required. Even CONCLUSION. effort and conscientious intentioned considering the court to avoid imposed on the trial the death sentence We vacate letter does resentencing hearsay in ac- contained and remand added.) (Emphasis contained not suffice. the instructions cordance with opinion. 563-64, P.2d at 22-23 Paz, Idaho at pointed (Johnson, J.). My dissent Paz BOYLE, J., BAKES, C.J., errors in “[pjermitting out Tern., BECKER, concur. J. Pro the harmless reviewed under cases to be only the accentuate error standard will Justice, BISTLINE, concurring parts district guidance of for with lack problem, II, VI, dissenting parts from III and and 562, P.2d at Idaho at 798 judges____” 118 IV, V, VII. and of the the exercise generality, 21. As a concludes that Si- majority properly The rule must be restrained error harmless the vacated and sentence must be vak’s con- impermissibly erode it tends to where resentencing. While case remanded rule specific, As a that rights. stitutional majority opin- core of the agreeing with the applied to vic- inappropriate when wholly concerning the ma- ion, I have reservations . impact statements. tim rule harmless error to the jority’s reference agree III, to am unable part and also THE OF IMPACT STATEMENT VICTIM V, IV, parts and VII. with EMPLOYER VICTIM’S DECEASED opinion holds majority the Part IV of AND IMPACT STATEMENTS VICTIM the considered properly the trial court HARMLESS ERROR by the deceased made impact statement However, United States employer. victim’s the majority III states that part the that the requires precedent Supreme Court not have sentencing at should trial court considering from precluded be sentencer deceased testimony the of the considered deceased victim’s testimony of the such type as this victim’s husband 482 U.S. Maryland, Booth employer. Mary clearly prohibited by Booth v. was (1987). 440 2529, L.Ed.2d 496, 96 107 S.Ct. 2529, 496, land, 107 S.Ct. 482 U.S. on reputation Booth held that and the effect of a of the victim the introduction victim wholly These impact phase family. at the his factors statement Eight the a capital murder the of a trial violated unrelated to blameworthiness Amendment. Booth concerned only state- particular As our cases have defendant. family. The by the victim’s shown, ments made know often will not the defendant Booth applies equal force to logic of with victim, no the and therefore will have by a victim’s impact made statement or knowledge existence charac- about the impact him upon of the employer as to family. More- of the victim’s teristics employee. murder his over, vic- rarely defendants select their tims on the murder will based whether jury that a Court stated anyone effect on other than have an “required sentencing is to a murder Allowing the to person jury murdered. ‘uniquely a indi- focus on the defendant as ” Booth, rely a VIS therefore could result on being.’ at vidual human omitted).1 imposing because (citation sentence at 2534 a was explain on to how victim which the defendant The Court went factors about jury unaware, a impact diverted a from irrelevant statement and were evidence thus This proper focus: to kill. decision away jury’s could divert the attention VIS, however, a is not on The focus of from, background and the defendant’s defendant, but on the character and Booth, I, Maryland 674 P.2d at 414 a case in which the 105 Idaho at 1. involved by jury. (emphasis supplied, justifiable pride). with was done a and Sattler, employer, ques- Mr. the victim’s was In State v. 116 Idaho prosecutor open by held that P.2d this Court Booth tioned court: Sattler, position applied you Q: Idaho death cases even if in a Mr. case, by though sentencing judge pass rather than a a what would down a sentence in jury. Justice Johnson sees the Idaho rule of be? that sentence compelling stare as the Court to My personal opinion? decisis abide A: II, language its in Sivak Q: Yes. justified. view That But when hang A: I’d him. 1987, year Booth on the scene in after Judge. arrived That’s all I have MR. HARRIS: Booth, II, it occurs me based on at n. 674 P.2d at 415. provisions Constitution United likewise The victim’s husband was called States, preempts the field and nullifies Sivak II prosecutor ef- to describe the stand family, had the father fect the murder High opinion was Court’s Booth indeed My ages children three High welcome. The Court in 1987 ruled out the there, in 105 at comments are further 908-21, impact use of This four victim statements. Sivak II 404-17. followed years one after this member of Idaho Su- years. Huntley them, Justice Sivak I three preme against Court "ruled” with as much support my again views. Of the whispering Accordingly, effect wind. as interested, not were not one wrote gratification three who relief I was with both challenge explain single attempting High word Booth. welcomed Somehow away Huntley myself. gaining views Justice had a time much easier attention Court, obduracy, it the Court’s continued as Because of some members constituted contentions, time, consistently. my Only ruling against produced. that than efforts had Huntley help The but have had a dev- Justice took of what I had writ- result could notice astating impact It is true that he was ten. on Sivak. produced Today's opinion as also was Randall for has involved in the homicide the Court but, mind, II, may my Bainbridge, to with- come the motivation to revisit Sivak which in turn punishment turning again scope of cruel and inhuman Sivak I. At Sivak the resulted in to any person years appears to for almost ten the follow- incarcerate suspended ing passage: time over his head is the while all the waiting greatly by to execute him. I some of the sword of Democoles am also troubled pattern accepted point is this Court’s of The I make that offered and appeal prolong erring to the portion in Sivak’s continues the of Sivak’s hear- ’live’ eventually gets agony. a deci- ing. particular, When Sivak final little reason or there was Court, justification prosecutor put one which is free from the to the sion from this error, on final, testimony, then follows his habe- and therefore stand a Mr. Frank Sattler. His my courts, view, through transgresses corpus the federal it is beyond that a as route which day believe if Sivak one is sentencing jury, judge, to should hear —hav- reasonable executed, very may have time ing nothing he well to do circumstances with the of years row. served fifteen on death crime character defendant. of of

record, determining factor in or not the and the circumstances whether imposed: death sentence should crime. be any justification permit- Nor there is 504-05, (em- at 2534 482 U.S. at S.Ct. ting per- such a decision to turn on the supplied). phasis ception sterling the victim was a employer impact An victim statement has community rather than a member of the diverting family the same effect as a victim in- questionable type character. This impact statement. The focus of the sen- provide ‘principled formation does not a to tencer is diverted from the defendant way distinguish in which the [cases] The employer. the business of the victim’s imposed, death from the may employer’s ability employees to attract many in Godfrey which it was not.’ wholly unrelated to the blameworthiness 420, 433, Georgia, 446 U.S. 100 S.Ct. improbable It that a of the defendant. is 64 L.Ed.2d 398 would of or consider defendant be aware Booth, at 2534. U.S. at S.Ct. ensuing employer’s detriment to an similarly unprincipled It would be to base activity undertaking business in criminal the death sentence decision on the difficul- person which results the murder of a ty employer may experience in which the happens employee. be an As the who filling position. Applying the victim’s Booth, use of Supreme Court stated might death in such a manner sentence im- impact a statement “creates an victim unemployed mean that the murderer of an permissible capital sentencing risk that the person person holding well-paying, or a a arbitrary decision will be made in an man- easily receive the death job filled would not 505, 107 at 2534. ner.” 482 U.S. at S.Ct. person murderer of a sentence while the equally true the statement This is as when holding low-paying, job fill a difficult to surviving family as is made a member would receive the death sentence. The employer. when it is that of an simply is not rele- harm done to business explained in Booth pen- vant to the awesome decision holding: its alty sentencing. Economic loss suffered family this members [In case] enterprise insignificant when com- expressing persuasive articulate and properly con- pared to the factors that are grief extent of their loss. their and the in the death sentence—the manner sidered cases the victim will not But some taken, and the in which the life was back- family, family or the mem- leave behind a the defen- ground and criminal record of describing may be less articulate bers dant. though feelings their even their sense of problem of a defen- Booth considered equally severe. The fact that the loss is trying prosecution’s evi- dant rebut imposition the death sentence impact. dence victim turn on such distinctions illustrates ‘minitrial’ the vic- prospect of a danger allowing juries to consider simply unap- tim’s character is more than Certainly degree information. the sen- pealing; it could well distract willing family and able constitutionally tencing jury from its re- express grief is irrelevant to the deci- its determining quired whether task— defendant, may mer- sion whether a who light appropriate in or die. penalty, it the death should live record of the ac- background and Like- at 2534. 482 U.S. at particular cused and wise, penalty imposition of the death the crime. the victim should not turn on whether A at 2535. 482 U.S. is suffi- employer who

leaves behind an to consider the views “minitrial” testify in behalf ciently interested to only serves to divert the employer likewise imposing a death sentence. task, proper for which sentencer from its part the sentenc- be no reason it should the worth points Booth also out that trial. ing phase in a murder distinguishing the victim should not be than sentencing of more to subsist FROM TESTIMONY testimony from a rereading HEARINGS PREVIOUS a rote sentencing constitutionally defective prior, opinion majority rules its part In V of adding prob- to the hearing. than Rather resentencing proper- the trial court being unduly sentencing court lem of the pri- in presented evidence ly considered the prior influenced of a defec- by the record resentencing hearings in Si- sentencing policy sentencing hearing, Si- it is better majority mischaracterizes tive vak. The trial court challenge truly to be that the new require vak’s the court to conduct evidence have considered not being should evidence sentencing hearing with the hearings. sentencing Si- presented prior in court. presented live this evidence insist that vak does not considered, but, contrary, not be BY RAISED THE OTHER ISSUES should be only that such evidence asserts BY SIVAK NOT CONSIDERED having the freshly rather than presented, MAJORITY its decision on trial court base hear and which which it does not evidence opinion majority part In VII of its years previous- some seven presented by issues raised states that all the other ly- v. previously resolved State three Arizona Su points us to (1983) P.2d 396 Sivak, 105 Idaho support prop cases which preme Court Sivak, (Sivak I), and v. State Arnett, 125 Ariz. v. osition. State (Sivak II), (1986) 197, 731 P.2d 192 (1980), the district court on 608 P.2d 778 only II was that the remand upon relied the evidence resentencing had resentencing, not to allow purpose prior hearings. Because the adduced at again challenge his conviction. Si- Sivak to defendant did not raise the issue present eleven issues on the vak raised None the matter waived. considered majority but four appeal. The addressed theless, that: the Court went on to state remaining in- issues of them. Two of believe, however, do not that this is We than made at trial rather volved errors defendant is practice. the better When majority during sentencing; hence resentenced, particularly when to be declined to address them. Of properly possible, it would the death sentence issues, only two remaining five seem that the evidence and (right II I or were addressed possible. Relying should be as fresh as governing by on factual issues jury hearing on a conducted months before sentence, the trial eligibility for the death is not imposition in sen- and reliance court’s consideration recommended. unsworn, extrajudicial state- tencing at 780. That court in two other 608 P.2d codefendant). Bainbridge, by ment resentencing where cases found error by the sentencing issues thus raised Three hearings was prior evidence adduced at gone unad- have therefore defendant utilized, the error was but concluded that sentencing issue which dressed. Another Bishop, 127 harmless as to both. State should be Bainbridge’s statement involved (error (1980) Ariz. light recent decision of our reconsidered subsequently defendant harmless because Charboneau, 116 Idaho able to have the issue of high, the stakes are When by P.2d 299 presented and reviewed fulfill its function court); Smith, better 141 Ariz. this Court would the trial State v. (error prop- 1265, 1266(1984) every harm issue disposing of each Moreover, ag to the less defendant admitted defendant. erly because raised resentencing gravating at the obligation circumstance owe we hearing). federal courts parties, but to the instant upon called to review in turn will be who process guaranteed the law

Due handiwork. this Court’s requires death the fourteenth amendment THE opinion CODEFENDANT’S OUT OF 774 P.2d at 306. This Court’s noted STATEMENTS presentation

COURT that sentencing evi- by testimony dence live had been demanded Though the issue of codefendant’s 19-2516, pursuant to I.C. and also ob- § extrajudicial indirectly statement was ad- court, testimony served that the father’s in I, in at dressed fully subject cross-examination, “did not 402,2 P.2d at we should reconsider the deci- hearsay cure the nature of the statements the trial court did not err in sion that 116 Idaho at 774 P.2d [in letter].” utilizing statement in considering and that at 318. The Court further in noted that enlight- light our more recent and more Creech, State v. ened decision Charboneau. recognized it had execution, sentencing In dis 19-2515(d) provided exception an to I.C. § judge specifically primarily trict found and presentence report. 19-2516 as to the upon the “fact” that defendant relied “[t]he 32(e)(1) Charboneau also noted that I.C.R. co-defendant, primari dominates the and is provides hearsay for the inclusion of in the ly responsible for all that occurred.” Si presentence report, only that “but vak 105 Idaho at 674 P.2d at 402. presentence investigator is re- believes appeal argued direct this On liable.” 116 Idaho at 774 P.2d at 319. finding unsupported by was the evidence. Since the letter at issue was not included in by declaring This Court ruled otherwise presentence report the Court concluded finding supported by in- that the was its admission was error. Thus accomplice depth interview with Sivak’s er- Charboneau the Court found reversible Bainbridge, which interview was included admitting writing ror a witness presentence report. 105 Idaho at cross-examination, who was available 906, 674 P.2d at 402. This interview was though writing even was similar to the by deputy county prosecutor conducted witness, testimony given by live trial, April five months before notwithstanding judge that the district ex- presence, per and without Sivak’s either in pressly relying denied on the letter arriv- Bainbridge by son or counsel. did not tes ing at the decision. 116 Idaho tify subjected at trial and was not 148-49, 774 P.2d at 318-19. App. Brief of 22-23. to cross-examination. comparison, Bain- By the codefendant this considered the Charboneau bridge’s implication of Sivak was far more receiving validity court’s unreliable, supported by not the live was from the fa- in evidence a letter victim’s testimony by any of its maker or other during letter offered ther. The evidence, huge played but nevertheless hearing, father’s live at the Judge Newhouse’s decision to sen- objection. 116 Idaho at role admitted over hand, propensity to commit opinion has exhibited a In Sivak I the for the Court did proper probably directly constitute a con- discuss whether it was murder which will rely judge tinuing society. to consider or on the co-defen- trial threat to only the dant’s statement. It discussed issue The evidence before the trial court was more judge’s findings sup- whether sustain of these find- than sufficient to both portion ported by the evidence. The relevant ings. in-depth appellant's ac- An interview of conducted, Sivak I follows: complice and was included presentence report. It contains references Appellant cites two of the trial [Sivak] two, lending relationship between the they findings argues are not court's finding Finding sup- support 5a. 6d is by allegedly supported ob- the evidence. ported murder com- evidence of the brutal jectionable findings are: defendant, by his lack of re- mitted 5.... crime, morse, willingness participate in the his co-de- a. The defendant dominates ... prior by testimony offer to do fendant, of his responsible primarily for all and is and, inferentially, to kill another violence to that occurred. person Wilson. Because other than Dixie evidence, findings supported these are 6.... not disturb them. we will defendant, 674 P.2d at 402. This Court’s by prior 105 Idaho at conduct d. The both summary. disposition was much too of the murder and conduct in the commission of circumstances try the issue Bainbridge’s state- to death. Sivak tence of his character. the facets crime and his questionable under obtained had been ment the second dictates that sense Common shortly after he was arrest- more the defendant’s his life is trial for first con- custody when he was in ed and in be then trial. Can it important state’s impact of the the full with fronted due while a rule that we have guilty of murder. he was accusation trial, any- guilt at the process obtains more criminal law are aspects Few which de- second trial thing goes at the co-defen- phenomenon of than familiar death? of life and the issue termines implicate each other. Unlike dants who Charboneau, Bainbridge in father victim’s 416. 674 P.2d at Idaho at the letter reason to lie. Unlike every had considering error The district court’s Charboneau, the district as to which unsworn, codefendant’s relying on the and reliance, any placing disavowed court violated court statements out of on the expressly relied Judge Newhouse That the law. process of right to due statement, on as did this Court Bainbridge perpe- apparently violation continues appeal. Sivak direct tuity. at 402. HEINOUS, CRUEL OR ATROCIOUS Bainbridge’s out of though Even and far far less reliable statements judge sentenced The district the father’s letter impacting than more finding of his death on the basis declined majority heinous, or atrocious especially murder was in consid- error rule on the district court cruel, exceptional depravity. manifesting Bainbridge’s state- relying on ering and argument, makes the 168. Sivak R. Vol. important ments, this or to even address address, that declines to majority of continues That state obduration issue. “heinous, atro- of its application Idaho’s very day. to this aggravating circumstance cruel” cious or eighth amendment. violates argued that the tran- It could be because sta- Bainbridge’s statements was script of has Supreme Court States The United report, pled presentence end of the at the circum- statutory aggravating held that Creech, 105 Idaho under limiting construc- given a must be stances con- hearsay properly obligation to its is to meet tion if the state judge the district sidered and relied on apply its law in a manner and “tailor a con- to death. Such inflic- arbitrary capricious and avoids the In clusion, however, misguided. would be penalty.” Godfrey of the death tion expressed I a view that: Charboneau 420, 428, 100 S.Ct. Georgia, that the mandate I remain convinced This Court L.Ed.2d 398 legislature expressed limit its I.C. attempting to appeared to be founding fa- and that of the 19-2516 “heinous, § 19-2515(g)(5) atrocious claus- process expressed thers in the due circumstance with cruel” federal constitutions es of the state and following construction: in- presentence prohibit the admission that heinous interpretation our It by hearsay vestigation reports obtained shockingly extremely wicked means containing hearsay. outrageously means evil; that atrocious vile; means 774 P.2d at and that cruel wicked pain high degree no different: myI earlier views were inflict a designed to, enjoy- or even indifference utter any with simply cannot in show The Court suffering of, of others. What ment capital sentenc- continue to let conscience those included are to be intended statements hinged on unsworn ing be the actual com- where capital crimes hearsay. It is now other forms was ac- capital felony mission involves two case clear that acts as such additional companied by try the issue of The first is to trials. the norm apart crime convicted, to set the the second guilt. If accused’s from 332 capital finding cruelty. conscienceless or to a As the Ninth Cir- felonies —the Ricketts, unnecessarily which is

pitiless crime cuit noted Adamson v. 865 (9th Cir.1988), nearly every torturous to the victim. F.2d 1011 “in finding cruelty case which a Osborn, 102 Idaho 631 reversed, only that the the court concluded (1981) (emphasis origi 200 in the prosecution proven had not the victim was nal). (citing conscious.” F.2d at 1033 Ari- 865 My 116 dissent State v. cases). Supreme zona Court Idaho should (1989), criticized 774 P.2d 299 similarly require showing a of victim con- this construction: predicate finding sciousness a a as limiting given to the construction cruelty. (g)(5) aggravating circumstance Os- today by majori- born and reaffirmed CRIME WHILE IMPRISONED ty, wholly guide insufficient During sentencing hearing a cor- ap- limiting sentencer’s discretion in rections officer testified that Sivak hid a plication of the death consistent weapon prison argues in his cell. Sivak Terms be- with constitutional mandates. judge that the district should not have con- capi- get terms. is the “norm” of What him sidered this “norm”? In- tal felonies? Who sets this deed, alleged possessing crime a because the degree all first murders involve weapon subject had not of a for- killing of another with mal- been the unlawful prosecution finding guilt beyond aforethought. partic- ice What sets this mal apart Gregg from the other a reasonable doubt. Sivak cites ular murder —not Georgia, from the “norm” of 428 U.S. S.Ct. crimes—but first (1976) dispute principle for the degree murder? In a domestic L.Ed.2d 859 that can gun. a Do all there are limits on the evidence husband kills wife with aggravating factors murders now warrant execution? offered show such so, against a defendant: hardly If it can be said discretion is limited. wisely has Georgia think the We

Also, impose unnecessary re- “limiting” chosen not to the Osborn definition that can be (g)(5) provides that strictions on the evidence circumstance hearing approve a and to “unnecessarily tor- offered at such the murder must be however, open far-ranging argument____ Clearly, the victim.” So turous to long the evidence introduced and the simply duplicative this definition is as presentence (g)(7) subjects arguments made at circumstance which defen- defendant, hearing prejudice do not dants to death for murder torture. impose restrictions. preferable it not to analysis, degree final mur- all first heinous, “especially ders are atrocious 203-04, 96 at 2939-40. 428 U.S. at S.Ct. cruel, manifesting exceptional depravi- unadjudicat- argues that evidence of interpre- ty.” Nothing majority’s in the this re- ed criminal conduct contravenes with tation restricts the broad brush Gregg. quirement found drawn. subsection is certainly merits Although argument 171-72, 116 Idaho at 774 P.2d at 341-42. consideration, majority has de- some presents a give any. clined argues further the district argument the issue is better finding of tenable judge should not have made a v. New in reference to Williams testimony showed resolved cruelty when the trial L.Ed. York, 337 U.S. S.Ct. that the victim was not conscious when that a sentenc- III, That case held alleged place. cruel acts took Tr. Vol. selecting 318-33, 359, II, 257, ing judge has wide discretion Appeal, Vol. Record of used to types of evidence “the sources and 674 P.2d 396. determining kind and ex- him in assist has held that Arizona imposed within punishment to be demon tent state has an affirmative burden to by law.” 337 U.S. limits fixed predicate strate victim consciousness as sentencing judge is not A at 1082. S.Ct. considering as

limited for which the defen- only those acts factors been convicted. dant has P.2d 426 HANSEN, Plaintiff-Appellant, D. Gerald HARVEY; James Scott ESTATE OF One, Representative Doe Personal John Harvey; Har and Don of James Scott Jr., vey, Defendants-Respondents. LEHMAN,

Robert C. Plaintiff-Appellant, HARVEY; James Scott ESTATE OF One, Representative Doe Personal John Harvey; Har and Don of James Scott Jr., Defendants-Respondents. vey,

No. 18628. Idaho, Supreme Court of d’Alene, 1990 Term. Coeur October

Feb.

Case Details

Case Name: State v. Sivak

Court Name: Idaho Supreme Court

Date Published: Dec 31, 1990

Citation: 806 P.2d 413

Docket Number: 17797

Court Abbreviation: Idaho