STATE of Idaho, Plaintiff-Respondent, v. David Zynn WILSON, Defendant-Appellant.
No. 14466
Court of Appeals of Idaho.
Nov. 7, 1983.
672 P.2d 237
Tr., p. 16.
After hearing the evidence presented by the parties, the court held Thriftway Lumber entitled to a judgment against the defendants Tisherman2 predicated on two grounds: that because the corporation had been inadequately capitalized and because the corporation was the mere alter ego of the defendants, the corporate veil should be pierced to hold the defendants personally liable; and that the “defendants Tisherman, through Darryl Tisherman, promised to pay the entire open account balance due in May of 1980 and later refused to comply with this promise.” Finding of Fact V. The court also held the defendants liable as partners apparently on the basis that they had never informed Thriftway Lumber of their incorporation, and Thriftway was not in any way bound by constructive notice of the incorporation.
On appeal, the Tishermans primary contention is that the trial court based its finding of liability on the Tishermans as partners on a partnership obligation and thus erred in imposing liability only on the Tishermans rather than on the Tishermans and the Malens jointly, citing
That the trial court alternatively held the defendants Tisherman liable as partners does not affect the validity of the judgment against them as individuals. See Foremost Insurance Co. v. Putzier, 102 Idaho 138, 627 P.2d 317 (1981); Eimco Corp. v. Sims, 100 Idaho 390, 598 P.2d 538 (1979).
Additionally, we find no error in the trial court‘s consideration of evidence that Dr. Tisherman promised to pay the entire obligation. The trial court found that such promise was not a compromise or settlement nor an attempt to compromise or settle the account and so such evidence was not inadmissible pursuant to this Court‘s holding in Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980). This determination is supported by the record and will not be disturbed on appeal.
The district court judgment is hereby affirmed. This appeal having been brought frivolously, unreasonably and without foundation, attorney‘s fees in addition to costs are awarded to respondent.
BAKES, J., sat but did not participate.
For reasons explained in this opinion, we hold that the sentences imposed in this case should be vacated and the case remanded for further sentencing consideration by the district court. Accordingly, we do not reach the questions of whether the sentences now before us represent an abuse of discretion or whether they should have been reduced in response to a post-sentencing motion. However, in view of the remand, we do address Wilson‘s challenge to the presentence report.
I
The crimes occurred as follows. Wearing ski masks over their heads and each armed with pistols, the two Wilson brothers James C. Morfitt, Caldwell, for defendant-appellant. robbed the Lone Star Market. They ordered the owner, his wife and two employees to the basement of the store and told Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy them to remain there. Shortly afterward, Atty. Gen., Boise, for plaintiff-respondent. apparently believing the robbers had left, the owner went upstairs. One robber, Kelly Wilson, was still in the store, while the other, David Wilson, had exited the store. Kelly Wilson returned the owner to the basement, and, in front of the other victims, fired a bullet point blank into the back of the owner‘s head. At his sentencing hearing, Kelly Wilson testified that the gun went off accidentally as he was turning to leave. However, the two employees testified that Kelly Wilson had raised the point of the gun from either the owner‘s lower back or his shoulders to his head, shot him and then turned to leave. The employee closest to the stairs testified that he heard the gunman say “yaahoo, I did it,” or something to that effect, after leaving the basement. Also, at the sentencing hearing, David Wilson testified that he had unloaded
WALTERS, Chief Judge.
During the robbery of a grocery store in Nampa, Idaho, in February 1981, the store owner was shot and killed. Subsequently, two brothers, David Zynn Wilson and Kelly Brian Wilson, were charged with first degree murder, robbery, burglary and the use of firearms in the commission of those crimes.
David Wilson pled guilty to first degree murder, robbery and use of a firearm. He was sentenced by the district court to the custody of the state Board of Correction. He received a determinate, fixed life term for the crime of first degree murder. He was sentenced also to a concurrent, indeterminate life term for the crime of robbery,
Both defendants pled guilty pursuant to a plea bargain. In exchange for the pleas of guilty, charges against each defendant for first degree burglary and the use of a firearm during a burglary were dismissed by the prosecutor, and the prosecutor agreed not to request the death penalty for the murder. The prosecutor did, however, reserve the right to recommend fixed life sentences for the murder, indeterminate life sentences for the robbery, and a consecutive ten-year sentence on each defendant for use of firearms in the crimes.
Upon acceptance of the defendants’ pleas, the court informed the defendants that the court was not bound by the prosecutor‘s recommendations. Because the defendants had pled guilty to first degree murder, it was necessary for the court to hold an aggravation and mitigation hearing, as provided by
Such a hearing was held. At the conclusion of the hearing, the court noted certain aggravating factors which “could very well be found” beyond a reasonable doubt to justify imposing a death sentence for first degree murder. The court determined that the homicide was especially heinous, atrocious and cruel, manifesting exceptional depravity; that the shooting exhibited a callous and utter disregard for human life; that the homicide was murder in the first degree, and that it was accompanied by Kelly‘s specific intent to kill. The judge entered no finding that David intended or contemplated the killing.
With respect to David Wilson, the court also considered his prior criminal record, which included two prior convictions for burglary (one being a felony conviction) and prior convictions for petty theft, battery and possession of marijuana. David Wilson‘s probation officer disclosed that while Wilson was on probation for the felony burglary conviction, he was uncooperative and frequently failed to comply with probation requirements. The court noted that Wilson had an extensive record of use of drugs and alcohol. However, the court found that David Wilson had not committed the murder himself and was not even in the store when the shooting occurred. The court further noted there was no competent evidence that David had instructed or encouraged Kelly to shoot anyone. Consequently, the court declined to impose the death penalty. Instead, as noted earlier, the court sentenced David Wilson to a fixed life term for the murder, to an indeterminate life term for robbery and to an additional three years for the use of a firearm in the robbery.
II
At the time of the sentencing, prior case law in Idaho indicated that David Wilson could be subject to the death penalty for the killing of the store owner in the course of the robbery, where the shooting was done by his co-defendant Kelly Wilson. See State v. Atwood, 95 Idaho 124, 504 P.2d 397 (1972); State v. Owen, 73 Idaho 394, 253 P.2d 203 (1953); and State v. Powell, 71 Idaho 131, 227 P.2d 582 (1951). However, subsequent to the Wilsons’ sentencing, and while this case was pending on appeal, the United States Supreme Court decided Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In Enmund, the Court held that the imposition of the death penalty upon a participant in a robbery in which a murder was committed was unconstitutional as a form of cruel and unusual punishment under the eighth amendment, where that participant did not himself kill, attempt to kill, intend to kill, or contemplate that a life would be taken. While the district court below did not have the benefit of Enmund at David Wilson‘s sentencing, in fact the court determined, consistent with Enmund, that the death penalty should not be imposed.
However, with respect to the range of other sentences which could be imposed for first degree murder, the record in this case
The record also discloses confusion on the part of counsel who represented the state and the Wilson brothers, concerning the actual duration of a fixed “life” sentence. For guidance on remand, we also will examine that point.
Availability of Fixed Term Sentence for First Degree Murder.
After the sentencing of the Wilson brothers, the Commission of Pardons and Parole sought an opinion from the Attorney General concerning the actual duration of the fixed life sentences given to the Wilsons. Having been made aware of that request, the sentencing judge submitted a letter to the Attorney General.1 In that letter, the judge not only made observations regarding the duration of the fixed life sentences, but he also addressed the question whether a sentence for a fixed term of years, less than natural life, could be imposed in a first degree murder case. He said that he had held the view, during the Wilson brothers’ case, that this alternative was not available to him. We now turn to that question.
Prior to its amendment by the Legislature in 1977,
[E]very person guilty of murder of the first degree shall be punished by death or by imprisonment for life....
A few days later, during the same legislative session, the fixed sentencing statute,
As an alternative to an indeterminate sentence for any person convicted of a felony, the court, in its discretion, may sentence the offender to the custody of the state board of correction for a fixed period of time not less than two (2) years and not more than the maximum provided by law for said felony.
When section 19-2513A was added in 1977, all sentences imposed for felony convictions had been subject to Idaho‘s indeterminate sentencing law,
Whenever any person is convicted of having committed a felony, the court shall, unless it shall commute the sentence, suspend or withhold judgment and sentence or grant probation ... or unless it shall impose the death sentence as provided by law, sentence such offender to the custody of the state board of correction for an indeterminate period of time, but stating and fixing in such judgment and sentence a maximum term which term shall be for a period of not less than two (2) years nor exceeding that provided by law therefor, and judgment and sentence shall be given accordingly and such sentence shall be known as an indeterminate sentence....
These statutes relate to the same subject, i.e., the sentencing of criminal defendants, and are thus in pari materia. They must be construed together to effectuate the legislative intent. Union Pacific R. Co. v. Bd. of Tax Appeals, 103 Idaho 808, 654 P.2d 901 (1982). Also, we must interpret the language of the statutes in favor of a reasonable operation. State ex rel. Evans v. Click, 102 Idaho 443, 631 P.2d 614 (1981),
The fixed sentencing alternative supplements a sentencing judge‘s choices. The statement of purpose for
Following adoption of
The fixed sentence has the advantage of assuring confinement for a time certain (subject only to commutation), but the disadvantage of allowing a defendant to be released from any custody or supervision after that time. Conversely, the indeterminate sentence has the advantage of allowing custody and/or parole supervision up to any time limit (within the statutory maximum) designated by the court, but it has the disadvantage that a defendant may be paroled or administratively discharged from custody as soon as the minimum confinement period under
In the present case, the state has argued that a fixed sentence for a term less than life, under
Although section 19-2513A, viewed in isolation, would seem to authorize a sentence for any term of two or more years in any felony case, such an isolated view would disregard
The desirability of harmonizing these statutes is emphasized by the anomaly which otherwise would exist, if a court could apply
Duration of a Fixed Life Sentence.
The record further indicates that counsel for both Wilson brothers, and the prosecuting attorney, may have believed that a prisoner sentenced to a fixed life term would be eligible for release from incarceration after serving thirty years in the penitentiary. The judge did not express a view on this question, but in his post-sentencing letter to the Attorney General, he urged that the duration of a fixed “life” sentence be clarified. The uncertainty on this point may arise from language in several Idaho Supreme Court decisions concerning indeterminate sentences, stating that for the purpose of determining parole eligibility, any sentence beyond thirty years is an effective life sentence. See King v. State, 93 Idaho 87, 456 P.2d 254 (1969); State v. Butler, 93 Idaho 492, 464 P.2d 931 (1970); and Pulver v. State, 93 Idaho 687, 471 P.2d 74 (1970), overruled on other grounds, State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975). From this language, the view apparently has evolved that a life sentence means thirty years and that a person sentenced to a fixed life sentence will be eligible for release—outright or on parole—after thirty years. We believe this view is incorrect.
We reject, first, the notion of outright release from a fixed life sentence after thirty years. We hold that the dura-
Second, we reject the contention that a fixed life sentence carries the possibility of parole in thirty years, or at any time. We do not believe the decisions in King, Butler, and Pulver support this contention. In those cases, the defendants were sentenced for varying periods, in excess of thirty years, under Idaho‘s indeterminate sentencing law. Under that law, for the purpose of determining when a defendant could become eligible for parole, our Supreme Court held that any sentence in excess of thirty years was to be treated as a life sentence. A life sentence was treated as a thirty-year indeterminate sentence, to allow for release on parole after service of one-third (or ten years) of a thirty-year sentence. See
However, our Supreme Court has held that under the fixed sentence statute, a prisoner serving a fixed term sentence never can become eligible for release on parole. Otherwise his sentence simply would be an indeterminate one, rendering the fixed sentence statute meaningless. State v. Rawson, supra. Thus, where a life sentence is imposed under the fixed sentence statute, the entire sentence must be served in confinement—none of it on parole. It is not subject to the thirty-year rule applicable to parole from indeterminate life sentences.
David Wilson questions whether a fixed term can be imposed under
III
The foregoing analysis defines the latitude of the sentencing court in a first degree murder case. A judge‘s sentencing discretion, particularly in a case of this magnitude, should be exercised with full awareness of the limits and standards governing that discretion. The dissenting opinion in this case suggests that these limits and standards would not have affected the sentences imposed. However, we believe that proper appellate review of sentencing discretion should be free from speculation about what a judge might or might not have done.
Accordingly, we conclude that the fixed life sentence imposed on David Wilson for first degree murder must be vacated and the case remanded for resentencing. Because the other sentences for robbery and use of a firearm may have been correlated with the murder sentence, they must be vacated as well. On remand the district court is instructed to impose sentences which the court, in the sound exercise of its discretion, determines will result in the minimum term of confinement reasonably necessary to accomplish the primary sentencing goal of protecting society and the related goals of deterrence, rehabilitation and punishment or retribution for wrongdoing. State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct. App. 1982).
IV
Because this case is being remanded, we will also examine David Wilson‘s contention that his presentence report was inadequate. He claims that the report failed to include either a complete summary of the presentence investigator‘s view of the psychological factors surrounding the commission of the crimes, or a specific recommendation regarding a psychological examination and a plan of rehabilitation. He asserts that
The record shows that, at the sentencing hearing, Wilson mentioned a few items in the report which he felt should be clarified, including allegedly speculative testimony. After all argument on sentencing was heard and a recess had been taken, the court asked if there was anything else of which the court should be made aware. At that time, Wilson asked only for a ruling that a written statement of one person be removed from the presentence report because it was totally speculative. The court granted that request and the statement was removed from the report. No other requests for alteration of the report, and no other objections to the report, were made.
We have reviewed the presentence report. It satisfies the requirements of
Upon remand the district court may order that the presentence report be updated, to include information available since the original report was written. Such information could include David Wilson‘s behavior and adjustment to confinement. See State v. Fuller, 104 Idaho 891, 665 P.2d 190 (Ct. App. 1983). If Wilson has any objections to the contents of an updated report, including any information carried over from the original report, it will be necessary for him to raise those objections before the district judge. They will not be considered for the first time on appeal.
The sentences imposed on David Wilson are vacated. The case is remanded for resentencing in accordance with this opinion. The district court has authority to provide for Wilson‘s continued confinement during the resentencing proceedings. Cf.
BURNETT, J., concurs.
SWANSTROM, Judge, dissenting.
I disagree with the majority concerning the availability of a fixed sentence for a term of years less than life in a first degree murder case. Also, I am not convinced that uncertainty or confusion had any influence on the length of David Wilson‘s sentences, therefore I cannot see those circumstances as adequate legal grounds for vacating the sentences. I respectfully dissent.
By its 1977 amendment to
The same statute that authorizes a choice between either death or life imprisonment for first degree murder authorizes a sentence of imprisonment of “not less than ten (10) years and [it] may extend to life” for murder in the second degree.
The majority suggests that the legislative intent is distorted in some cases by allowing a court to bar parole for a less serious crime, while preventing the court from denying parole for a more serious crime. Under my view of the statutes, however, there is no such distortion. For the more serious crime, the judge can bar parole for the entire lifetime of the offender by choosing a fixed life sentence. For the less serious crime, the judge can bar parole for a specified time with a fixed sentence from ten years to life, or he can allow the possibility of parole by choosing an indeterminate sentence. This is a consistent result. Only if we compare parole eligibility under a fixed sentence for second degree murder with parole eligibility under an indeterminate sentence for first degree murder do we get the distortion which the majority tries to avoid. Yet this result is entirely possible under the majority opinion.
As noted above, there is another reason for my dissent in this case. Even if the district judge could have imposed a fixed sentence for a term of years less than life for the first degree murder conviction, there would still be no grounds for vacating the sentences. Nothing in the record of this case suggests that Judge Lodge wanted to impose some sentence for a term of years less than life on the first degree murder charge. Moreover, the record indicates he held the belief, correctly, that a fixed life sentence would not permit parole eligibility in thirty years.
There were two serious crimes in this case, both demanding a heavy penalty. A life sentence was authorized for both the robbery and the murder. If the court had desired to give David a fixed sentence for a number of years in prison—less than life—he could have done so. This experienced judge was well aware that he could have given a fixed sentence for robbery, coupled with a indeterminate life sentence for the murder, for example. By doing so, he could have effectively assured that David Wilson would remain in prison, without eligibility for parole, for twenty, twenty-five, thirty years or more. Yet the fixed sentence would be less than life. The combinations available permitted the district judge great flexibility in pronouncing sentence for any fixed number of years that he might have chosen. He could do this because the two crimes were closely interwoven. In fact, but for David‘s participation in the robbery, he could not have been convicted of the murder which was the act of his brother. These circumstances allowed the district judge to tailor the overall sentence by an appropriate combination of sentences. Thus I do not see that he was constrained by any uncertainty in the law itself.
It is not necessary, now, in this appeal to decide the issue as to whether the fixed life sentence is excessive. However, to be candid about my position, I express some personal reservations about the imposition of a fixed life sentence without the possibility of parole in this case. Here the evidence of David‘s direct participation in the killing was scant and there was a reasonable doubt concerning David‘s intent to cause a death. At some time in the future it might become appropriate to shift the emphasis of the sentence from the protection of society and punishment to a consideration of David‘s rehabilitation into society. A fixed sentence for life will not permit that, unless the present sentence is commuted at some
My reservation about the sentence does not forestall my dissent. However, I would urge the Legislature to consider whether district judges should be given authority to impose a fixed sentence for a number of years, less than life, in first degree murder cases. The Legislature should have the final say here. They can benefit the administration of justice by bringing the judicial debate on this subject to an early end.
SWANSTROM
JUDGE
STATE of Idaho, Plaintiff-Respondent, v. Kelly Brian WILSON, Defendant-Appellant.
No. 14472.
Court of Appeals of Idaho.
Nov. 7, 1983.
672 P.2d 247