*1 Creech, quoted supra, absolutely ap-
plicable. long How Cabana will sway hold High Court anyone’s guess.
Caldwell lasted less then year. one
STATE of Plaintiff-Respondent, WINDSOR,
Karla Yvonne
Defendant-Appellant.
No. 15486.
Supreme Court of Idaho.
Dec. 1985.
Rehearing April Denied 1986.
mer several prior weeks to his death. Grammer was dating Fetterly’s ex-mother- in-law, Hogan, Viola and Windsor and Fet- terly met Grammer through her. The scenario that culminated in Gram- mer’s death on Wednesday, September 7 *3 began unfolding Monday, on September 5 when Windsor Fetterly and up at showed Grammer’s home around dinner time. The pair had living together been for approxi- mately six months at the time of Gram- mer’s They death. were unemployed and had sold most of their possessions to raise money in order to adjacent travel to states in search of work. they When arrived at doorstep September Grammer’s on they were money, without place vehicle or a stay. Grammer stay invited them to for dinner and spend allowed night them to in his extra room. Grammer woke them about 5:30 the morning next they and all left the together. house Windsor and Fetterly had been told that there were several warrants out for their arrest they spent day September 6 walking trying around and to devise a plan get safely themselves out of the During Grammer, state. their visit with they had observed that he owned two ve- Hoff, Renae Hoff, Caldwell, Gunn & hicles, large television, and a diamond for defendant-appellant. ring. Windsor they testified decided Jones, Gen., Jim Atty. Thomas, Lynn E. to ask Grammer to them loan a vehicle. Gen., Boise, Sol. plaintiff-respondent. that, She refused, testified if further he they up had decided to tie him and rob him. DONALDSON, Chief Justice. they She stated that never intended hurt Grammer, only to rob him. Appellant Karla Windsor appeals from her conviction degree for first murder and pair returned Grammer's house from imposition penalty death that afternoon and waited for him come therefor. arrive, home from work. When he did not they September 7, 1983,
On the house through entered Sterling window Grammer for him. stabbed to in his waited Grammer Caldwell did not home. 10, 1983, come September On home until about 6:30 the following Karla Windsor and morning. Hogan Viola Fetterly Donald testified were observed that he driving a spent night registered home. vehicle to Grammer. her They subsequently charged arrested with Windsor testified that when Grammer murder, degree first burglary, grand theft arrived at home Wednesday morning, deadly weapon the use of a in connec- she Fetterly explained their situation tion with Grammer’s death. give and asked him to them a vehicle record refused, reveals Windsor and Fet- some money. When he decid- terly acquainted had become go Gram- ed to robbery. ahead with the They had of the de- sen as to the whereabouts tape in bed- found some duct Grammer’s given was not ceased’s other vehicle. She they used to bind his hands room which questioning. warnings prior to this Miranda stated that Grammer and feet. Windsor police to answers enabled the up him and did not Windsor’s agreed to let them tie however, the vehicle. autopsy, revealed locate struggle. The unexplained to the back of Gram- an bruise Hensen had obtained the informa- After expert The state’s medical mer’s head. vehicle, supervisor, Rich- tion about opinion in his a blow suffi- testified that Appleton, suggested Hensen leave ard such a bruise would cient to have raised becoming upset by as Windsor was room Grammer unconscious. rendered “firm Appleton termed Hensen’s atti- what this, postulated the state that Wind- From Appleton then talked to Windsor tude.” Fetterly struck and that sor and Grammer if He told her that attempt an to calm her. they taped when him. he was unconscious anything it involved in would she was if the truth. Windsor re- was also covered with best she told
Grammer’s face *4 testified, going to make tape. expert sponded The that she was not duct state’s Fetterly being objection, placement any of the statement without over that Fetterly brought completely present. Appleton had tape would have cut-off Gram- and, talking together, that into the room after supply. mer’s air Windsor testified Fetterly agreed Windsor to make a taped she face and that his and Grammer’s point, Appleton At breathing joint statement. that was affected. rights. Both them their Miranda read stabbing of is sub- Windsor’s version Fetterly signed waiving Windsor and forms stantially taped as follows: Grammer was give rights proceeded a de- those up lying and left on his while Windsor bed of that tailed confession. On the basis Fetterly pos- his determined which of confession, charges they were indicted on began sessions to take. Grammer to make murder, burglary, grand degree of first a lot of noise. Afraid that he would alert deadly weapon in the theft and the use of a neighbors, Fetterly Windsor and ran felony. of a commission attempted quiet into the bedroom and 12,1983. began him. set for December On Grammer to thrash around on Trial was 1983, 21, Fetterly grabbed the defense filed a the bed. him and tried to November or, change venue in the alter- began hold him still. Grammer then kick- motion for native, county from a ing legs jury laid them. for selection of a Windsor across wide- Fetterly Canyon alleging that point, At that reached across the other than such grabbed spread pretrial publicity mandated headboard the knife motions were denied tape. procedures. used to cut the duct He held the Both prejudice. knife to Grammer’s chest. When Grammer without struggle, Fetterly continued to stabbed him pretrial motions were other Several several times in the chest. Windsor stated made, the trial including a motion to sever stabbing quickly that the occurred so motion to defendants and a of the two impossible anything it was for her to do suppress joint confession. Additional- prevent it. sever public defender moved to ly, the of inter- body due to a conflict dumped Grammer’s was in the Windsor’s defense sever granted the motion to Snake River where it was discovered est. The court trial, rescheduling trial for pair Windsor’s September of fishermen on 9. The 1984, withdrawal following day, police February and allowed officer observed The Fetterly Windsor’s defense. driving Windsor and around of counsel from Cald- suppression joint confes- pickup. They well in Grammer’s motion for stopped Canyon County and taken to denied. sion was questioning. Sheriff’s Office for Fetterly Donald trial of co-defendant 12,1983 and concluded placed interrogation began in an on December Windsor questioned by jury 1983. The returned room and Detective Jim Hen- on December a guilty verdict not only degree to first filed a document with the court entitled premeditated and murder, deliberate but to “Memorandum Regarding Aggrava- felony murder as well. Publicity regarding tion/Mitigation Hearing of Karla Windsor” Fetterly’s trial and conviction was exten- without serving the defense copy. with a result, sive. As a Windsor renewed her argued She also that the death penalty was change motion of venue. The trial disproportionate in her case. Windsor’s court took the motion under advisement motion was denied without discussion indicating that the matter of venue would objection of her prosecutor’s memo- not be decided until trial. Jury selection in randum. appeals Windsor from judg- Windsor’s trial was commenced on Febru- ment of conviction for degree first murder ary 1984. Once had been im- and from imposition penal- the panelled, denied court Windsor’s motion ty. for change of venue without comment. On February the jury returned I. a verdict of guilty the charges grand alleges Windsor
theft, the totality degree second burglary and first de- circumstances gree surrounding the taking murder in perpetration of a bur- joint glary. confession rendered it involuntary verdict form for premeditated murder therefore inadmissible. unsigned. Although returned con Windsor’s ceding motion to she have an acquittal read her entered on that Miranda rights charge was signed denied. she a waiver of rights those prior giving confession, Notice intent to seek the death penalty *5 she nevertheless asserts that she was 20, was filed on March 1984. The court coerced into making a statement in viola scheduled the matter for sentencing and tion of Miranda. See Miranda v. Arizo ordered presentence a investigation. na, 436, 384 U.S. 86 S.Ct. 16 L.Ed.2d Alleging that the pre-sentence investigator (1966). 694 She contends that Officers interrogated regarding Windsor facts of Hensen Appleton and used “good a charged crimes in violation of her con- cop/bad cop” technique to psychologically rights, stitutional the defense filed a mo- pressure her into making a statement. She tion portions to strike presentence asserts Officer that Hensen assumed report. The motion was denied. Prior to role of cop” badgering “bad her to the sentencing, Windsor moved a for formal point visibly where she upset. was Officer sentencing hearing and sentencing by for Appleton intervened, then she alleges, ca jury. These motions were denied also and joling her giving into a confession which the hearing aggravation mitigation and she would not otherwise have made. commenced on March Following 1984. testimony and argument, the court deter- Windsor raised this same issue before mined that the aggravating circumstances the trial court when moved to suppress she outweighed the mitigating circumstances joint confession. The record from that and the penalty was imposed. The hearing reveal does that Officer Hensen imposed court also a concurrent indeter- questioned prior Windsor reading her minate five-year for burglary sentence her rights Miranda that was Windsor a concurrent fourteen-year indeterminate upset by Appleton what Officer referred to grand sentence for theft. A death warrant as However, “firm Hensen’s attitude.” and findings pursuant were filed to I.C. record also reveals Hensen ques- that only 19-2515. § tioned for period Windsor approx- total Thereafter, Windsor filed a imately motion for five questions minutes that reduction and correction of A sentence. were solely confined ascertaining hearing on that motion was on Novem- held location of Grammer’s car. pro- Windsor ber 1984. hearing, At the Windsor vided him phone with a number of the objected to prosecutor the fact that the residence where the car was located he Court, Mr. least as to at clear to the was joint The confession room. left the interview, Miranda that the Appleton’s later. hour more than an taken until not detail, and each given warnings were asked departed, Windsor After Hensen read, was response and a was paragraph Fetterly. pair The conferred speak to they that Defendants by the given back agreed to make then for some time they that right and that understood point, they were At that joint statement. same, being present both waived rights. confession their Miranda read conferring with benefit of having had the any was not connected followed talking with each other each other and as to questioning initial way to the make that they wanted to to whether car. location record is I think that the confession.... recent- Supreme Court States The United pressure any psychological void of Elstad, issue ly Oregon addressed this upon Defend- bear brought L.Ed.2d 470 U.S. S.Ct. just no indication ants. ... There (1985), holding suspect who has pressured point that all at this uncoerced, unwarned, yet responded to any way.” coerced in from questioning thereby is not disabled record and carefully examined the haveWe waiving rights and thereafter his or her that it does judge trial agree we with the warn- confessing following proper Miranda coerced into Windsor was appear ings. examining the After giving a statement. rule, rigid we establishing a “Far from surrounding totality the circumstances one; there is no to avoid direct courts confession, we con- joint making of the effect presuming warrant coercive was intro- evidence clude that sufficient inculpatory suspect’s initial where to conclude permit the trial court duced to statement, though technically in violation voluntarily made the confession (Footnote Miranda, voluntary. admissible. and therefore omitted.) inquiry is wheth- relevant fact, also er, second statement II. in- such voluntarily made. As court the trial Windsor contends fact examine quiry, the finder of must *6 motion her denying abused its discretion the en- surrounding circumstances that venue. She maintains change of respect with for a police conduct tire course of coupled pretrial publicity evaluating the volun- the extensive suspect to the coverage of media widespread that The fact tariness of his statements. co-defendant, being of her speak after and conviction suspect a to trial chooses course, oppor- is, high- Fetterly, deprived her rights informed of his Donald impartial jury. today that a an tunity We hold be tried before ly probative.... to un- to suspect responded has once who to or not as to whether The decision questioning is not yet uncoercive warned lies change of venue for grant a motion waiving rights from thereby disabled court. of the trial within the discretion given he been confessing after has 432, 430, Thomas, 489 94 Idaho v. State at warnings.” Id. requisite Miranda ap 1310, (1971). “[Wjhere it P.2d 1312 —, 1298. 105 at S.Ct. actually received the defendant pears that argu testimony and hearing After difficulty there was no trial that a fair issue, conclud judge the trial ment on refusal selecting jury, a experienced in that ed ground change of venue is not grant a inquired about Hensen “when Mr. for reversal.” Id. telephone given a and was automobile us before record that evidence number, nothing transpired there received that Windsor leads us to conclude brought back Defendants was Despite by impartial jury. trial an a fair coerced them might cause surrounding this publicity widespread a confession.... pushed into [I]t 416
case, a jury was selected from Canyon mination of whether or not to admit such
County with relative ease. From their an-
evidence is within the sound discretion of
swers
questions
preliminary
by the
court
trial
and will not be disturbed on
court, it appears that most of the jury
appeal absent an abuse of that discretion.
panel was largely unfamiliar with the facts
Abel,
State v.
865,
104
870,
Idaho
664 P.2d
of this
In
case.
individual questioning,
772,
(1983).
777
most
the jurors indicated
recall
While
agree
we
that the evidence
they did
was very vague.
Only two
prejudicial,
we do
agree
that its
prospective jurors
disqualified
were
be-
admission was erroneous. As the trial
cause of
they
bias
developed
had
due to
judge recognized in admitting the evidence,
coverage.
media
Of the twelve jurors and
jury
is entitled to base its decision upon a
two
selected,
alternates
none had more
full
complete
description of the events
hazy
than a
recollection
the circumstanc-
surrounding the
commission
a crime.
es surrounding
killing.
None of these
Izatt,
667,
State v.
670,
534 P.2d
jurors were challenged for
cause.
addi-
(1975).
Dr. Dondelinger’s testi
tion, we note that defense counsel did not
mony
clearly
provide
relevant
exercise all of her peremptory challenges.
complete description of
and,
the crime
be
All of
jurors
who
finally
selected
cause Windsor admitted that she did the
stated
opinion,
formed no
taping, to show her state of mind
in
could set aside anything they had heard
tent at the time of its commission. We
and base
only
their verdict
on the evidence
conclude that the trial court did not
at trial.
abuse
its discretion in admitting Dr. Dondeling
Considering the
whole,
record as a
in-
er’s testimony.
cluding the transcript of the voir dire ex-
amination,
appears
there was no
Windsor
objects
also
to the admis
difficulty in selecting
jury,
and that the
sion of photographs of the
body.
deceased’s
defendant received a fair trial. We con- Photographs of the
prosecution
victim in a
clude that the trial court did not abuse its
homicide,
duly verified and
shown
discretion in denying Windsor’s motion for
extrinsic evidence to be
representa
faithful
change of venue.
tions of the
victim the
question
time in
are, in the discretion
court,
of the trial
III.
admissible
evidence as an aid to
Windsor next asserts that the trial court
in arriving at a fair understanding of the
committed
reversible error
admitting in-
Martinez,
evidence. State
92 Idaho
flammatory testimony and photographs.
691, 696,
439 P.2d
denied,
cert.
trial,
U.S.
At
pathologist,
the state’s
S.Ct.
tends that such testimony served proba- no IV. tive function and that its admission could Windsor claims that her state and federal only have served to inflame the minds and rights constitutional process due of law passions jury of the against her. were violated because she was tried and allegedly Where inflammatory ev charge convicted on a of which she had no idence is relevant and material to an issue notice. argues She that there was a vari- fact, of the trial court must determine ance between the by information which she whether the probative evidence’s value is charged and the by verdict which she outweighed by possible its prejudicial convicted, ef was and that the variance is Wilson, fect. State v. 194, 93 Idaho 196- fatal and mandates reversal of her convic- 97, 433, (1969). 457 P.2d 435-36 The deter- tion. charged between the crimes degree was a variance first charged with Windsor was trial, Information we conclude that proof I of the under Count and murder as follows: a present read facts of the case such under the fatal. was not variance “COUNT sufficiency indictment or The of an FETTER- KENNETH That DONALD ultimately depends on whether information WINDSOR, YVONNE LY and KARLA plead of the it fulfills the basic functions day September, the 7th of on or about County Canyon Hamling and State 1983, ing in instrument. United Idaho, being, then 2887, and there did States, then 94 S.Ct. 418 U.S. wilfully, knowingly, intention- and there (1974), Su L.Ed.2d 590 the United States unlawfully, feloniously, with malice ally, Court, analy functional preme applying a kill a aforethought premeditation, sis, following forth the standard for set GENE being, to wit: STERLING human testing sufficiency pleading: of a GRAMMER, stabbing by and there then indict- cases indicate that an prior “Our in Sterling the said Gene Grammer it, first, if ment is sufficient contains knife, thereby mortally chest with a charged the offense and fair- elements of Grammer, wounding Sterling said Gene charges of the ly informs the defendant Sterling said Gene from which wounds defend, and, sec- against which he must day of on or about the 7th Grammer died ond, acquittal or plead him to an enables County of Can- September, prosecutions of future conviction bar yon, of Idaho. State offense.” Id. at for the same contrary Idaho Code “All of which is at 2907. S.Ct. 18-4003, and 18-4001 and Sections dignity against power, peace then, regarding the Specifically, the State of Idaho.” variance, a determination issue of jury The was instructed that a verdict depends is fatal a variance whether degree murder could be returned on first not the basic functions whether or (1) wilful, of two theories: deliberate one As have been met. pleading requirement (2) killing murder premeditated or Supreme Court the United States by stated perpetration attempt to committed in the States, 295 U.S. Berger v. United felony. returned a perpetrate a (1935): 629, 630, 79 L.Ed. 55 S.Ct. “guilty of the offense of First verdict of inquiry is not whether “The true ... of, perpetration or at- Degree Murder proof, but a variance there has been burglary, charged tempt perpetrate, variance has been such a whether there I of the Information.” The ver- Count rights’ of the the substantial as to ‘affect wilful, premed- dict form for deliberate allega general rule that accused. unsigned. was returned itated murder correspond is based proof must tions the information Windsor contends (1) that requirements upon the obvious “pre- charged only her with the crime definitely informed shall be the accused was never murder” and that she meditated him, against so that he charges as to the separate she views as a charged with what present enabled to his defense may be degree crime “first murder and distinct surprise by the taken and not be attempt perpe- perpetration of or trial; (2) at the evidence offered Therefore, she insists burglary.” trate a *8 against another may protected he and irrecon- that the verdict is inconsistent the same offense.” prosecution for information, mandating re- cilable with the her versal of conviction. standard, Thus, prevailing the state under require of the variance is held to reversal a unnecessary We deem it to address de- only deprives when it the existed, conviction a variance question the of whether right to fair notice or leaves for, fendant of his assuming, arguendo, even that there 418 open him to the risk of double jeopardy.1 perpetration of felony. the It is Windsor’s The notice element of Berger the standard position that under the present facts requires courts to determine whether the case the burglary was completed long be- suggests record the possibility de- fore the victim and, was murdered there- fendant was misled or embarrassed fore, that it was error to instruct on felony
preparation
presentation
of his defense. murder. We addressed the same issue in
supra
82-84,
Berger,
at
before us
prior
indicates that
to trial the
prosecution proposed
plea negotiation
argues
Windsor
capi
that Idaho’s
whereby Windsor
agree
would
plead
tal sentencing process violates both the
guilty to
premeditated
both
murder and
Idaho and Federal Constitutions in its fail
felony
in exchange
murder
for a sentence
ure to
jury.
utilize a
This
previ
Court has
other than death. At the
trial,
close of the
ously addressed this issue. See State v.
prosecution
when the
offered an instruc- Sivak,
900,
105 Idaho
(1983)
V. VII. above, As mentioned Windsor maintains that contends, the jury was Windsor next erroneously citing Enmund Florida, instructed on the elements of felony mur 458 U.S. 102 S.Ct. trial, der. At requested (1982), she an instruction L.Ed.2d 1140 imposition that the to the effect that a burglary and murder the death penalty upon her conviction for part must be closely felony continuous action murder eighth contravenes time, related in place and causal relation prohibition amendment’s against cruel and before the murder can be found to be in the punishment. unusual 1. Smith, argued Commentators double State v. 626 P.2d 206 jeopardy longer (1981). element is no "Accordingly, vital a function argued, ‘protection it is pleading against document as it prosecutions once was since successive for the same transcripts now of the trial itself available are offense ... require [should] of an accusa- readily and more relied on to establish what tion completeness more than the notice ultimately before the court Israel, function demands.’” 2 W. LaFave & J. them, prosecu- 19.2(b) resolved as a bar to supra, Scott, future quoting § Fairness Israel, tions. 2 W. Crime, LaFave & J. Modern Crimi- in the Accusation 41 Minn.L.Rev. Procedure, 19.2(b), (1984), nal citing (1957). § at 446 516-17
419
life, attempted to take
took
that she neither
Supreme
Enmund,
the United States
record
life,
life. The
nor
to take
for-
intended
eighth
the
amendment
held that
Court
specifically
judge
trial
that
the
penalty
reflects
the death
imposition of
the
bids
in the
participation
Windsor’s
life, attempt-
found that
took
one who neither
against
specific in-
accompanied by the
felony was
life,
take life.
intended to
nor
ed to take
being.
of a
cause
death
human
tent to
the
797,
The evidence
enough not to
tent
bring
realize that
to
laws
some
about the death of Sterling
were broken in
case.
Grammer.
this
But I am
going
you
to ask
to hold her responsible
As both the trial judge and the jury
for her criminal acts and for her intent
found that
intentionally
Windsor
partici-
and not for
Fetterly’s.
Donald
pated in a killing while perpetrating a felo-
“Her crime in majority
its
was being
ny, there is no merit to Windsor’s conten-
associated with
Fetterly.
Donald
Karla’s
tion
imposition
that the
penal-
of the death
presence at the
scene Mr. Grammer’s
ty was constitutionally impermissible under
death is
key
not the
here. Karla’s intent
the mandate of Enmund v. Florida.
is the issue.”
Unless
found that Windsor knowingly
VIII.
bring
intended
death,
to
about Grammer’s
alleges
Windsor
that
penalty
the death
them,
she told
they could not find her
imposed
under
one-sided influence
guilty of murder.
prosecutorial bias,
passion
prejudice,
“You
to
have
decide whether
par-
Karla
and as a
prosecutorial
result of
misconduct.
ticipated in bringing
Sterling
about
She delineates several
alleged
instances of
remember,
Grammer’s death.
you
And
misconduct in support of these charges.
have heard the
It
instructions.
can’t
particular,
objects
she
to the prosecutor’s
accidental. You have to decide that Kar-
filing of a memorandum entitled “Memo-
la knowingly intended to bring about
randum Regarding Aggravation/Mitigation
Sterling
you’re
Grammer’s
or
go-
death
hearing of Karla Windsor”
alleg-
which she
ing to have to decide if
Fetterly
Donald
es
upon
was never served
the defense.
acted
Now,
on his
you
own....
if
decide
Fetterly
Donald
acted on
The record
ap
his own
before us on direct
peal
without
knowing
Karla’s
devoid of the
intentional
factual information
assistance,
you
then
stop,
necessary
can
to allow us to
because
evaluate Windsor’s
you
going
are not
go
allegations.
to
The proper
raising
forum for
farther.”
kind,
allegations of this
which are outside
appeal,
record on
is via a petition for
She stated that
theory
of murder in the
post-conviction relief.
I.C.
19-4901 et
perpetration
§
felony
of a
inapplicable
seq.
Blackburn,
See State v.
absent a finding
participated
that Windsor
“The prosecutor
you,
also talked
has
IX.
and the judge
you,
has instructed
Finally, we review the record in
murder,
theory
second
given
pursuant
this case
mandate
I.C.
you
Any
instructions.
murder commit-
19-2827. Whenever the
penalty
§
ted in
perpetration
attempt
or
imposed this
required
Court is
to conduct
perpetrate a
In order
burglary.
an independent review of the record to
theory
applicable, you
to be
will of
(1)
insure
that the death
sentence
course first have to
decide
there was
imposed under
passion
the influence of
murder, again,
killing
with malice
(2)
prejudice;
supports
evidence
aforethought.
intentionally
That Karla
the judge’s findings
statutory
as to the
participated in the murder
specific
factors;
(3)
aggravating
that when
intent
bringing
Sterling
about
Gram- both the crime and the
are con
defendant
mer’s death.”
sidered, a
sentence
death is not exces
It is clear from the
that the jury’s
disproportionate.
above
sive or
careful
After
verdict of guilty
charge
on the
of murder
consideration of
both
crime and the
any contention
was never
There
sentence
defendant,
that the
we conclude
actually stabbed Gram-
was excessive
Karla Windsor
in this case
imposed
of death
set
aided Fet-
We therefore
that she
disproportionate.
admitted
*11
mer. Windsor
and
for
and
victim,
sentence
remand
death
and that
quiet
aside the
the
trying
in
to
terly
resentencing.
testified
stabbing. She
the
she witnessed
quickly that
so
stabbing occurred
that the
is qualitative
of death
penalty
The
jury
it.
stop
The
powerless
she was
sen
other
from that
ly different
murder, but
felony
guilty of
found Windsor
life and
the
is between
choice
tence. When
de
and
premeditated
the
acquitted
on
her
humani
death,
respect for
fundamental
the
Fetterly, she
charge. Like
murder
liberate
amendment
underlying
eighth
the
ty
that
to death.
sentenced
Constitution mandates
States
United
character
both the
carefully consider
we
in
the differences
Taking
account
into
and
offender
of the individual
and record
crime, in
participation
their level
offense
particular
the circumstances
verdicts,
background and in the
their
the ulti
infliction of
uphold the
before we
disproportionate
that
it was
we conclude
Car
v. North
penalty.
mate
Woodson
Fetterly to receive
and
Windsor
for
2978,
280, 304,
olina,
96 S.Ct.
U.S.
428
con
is
Our conclusion
sentence.
identical
(1976).
other
2991,
Unlike
L.Ed.2d 944
49
com
in
the result reached
with
sistent
sentences,
capital
is exe
once a
sentence
Sivak,
Idaho
105
panion cases of State v.
correc
opportunity
is no
cuted there
(1983)
900,
v. Bain
396
and State
674 P.2d
tion.
273,
(1984),
Allen,
782,
(1977);
Koho,
(1967);
98 Idaho
defendant was confirms the disposed of in the river sub- was keeping the victim in co-defendant morality, disregard for defendant’s utter knife wounds quiet dued and when feeling person’s loved decency, or for also ad- The defendant were inflicted. love chil- professes to plan- ones. The defendant that she was instrumental mitted dren, willingly participated tak- yet she burglary and preparing for the ning and four-year-old boy’s father life of a ing the evidence It is clear from theft. how close the after she had observed been ac- even could have both those crimes father and son were. victim re- long before the complished home, lay in yet both defendants turned 4) evidence that the defend- There is no The Mr. return. wait for Grammer’s ef- under the influence or ant’s mind was of the evi- construction only reasonable drugs time of and/or at the fect of alcohol that the defendants thereafter dence killing. head, him of victim on the robbed hit the 5) commission of planning for the belongings, bound personal his modest day a two to three the crime continued over him, and later eliminated gagged was contacted as a period. Zeke Pálacios only eyewitness to their ac- him as the early two property as as “fence” for did not wield While this defendant tions. crimes. the commission of the days prior to knife, light of her other acts plans Also, their both defendants discussed finding a difference complicity, this schoolyard they were in the length while R., II, pp. Vol. without a distinction. home, and then adjacent to the victim’s 0315-1316. victim’s home for waited defendants judge is foregoing statement to return Mr. several hours for Grammer under sentencing rationale part of complete the same. IN AND ARGUMENTS FOUND FACTS the victim contention Defendant’s Findings of the POSSIBLE MITIGATION. along appearance with the agreed go these: aggravation included Court evidence, with the robbery is inconsistent 1) totally senseless and The crime was gross is a distor- common sense and defies feeling one’s any compassion or void of had en- The defendants the facts. tion of The victim had taken the de- fellow man. without his consent the victim’s home tered home, had fed them and fendants into his window, one of had ransacked through a They given place sleep. them covered with and left the same his rooms means, a man of humble but knew he was the same was done glass, unless broken *15 few who cherished his home and the one defend- struggle between the a result of a personal belongings he had. victim, sought the victim’s ants and the personal property rings and other diamond 2) exceptionally brutal killing was particular sentimen- they knew had depraved mind. and the conduct of a him, work when kept him from tal value to for the explanation no rational There is him have history shows whole work head other his the victim’s blow to the back of worker. a reliable and conscientious so been by the defendants than that he was hit voluntarily that he would have His To believe carry plan. their they could out car have his agreed to let these defendants duct bound with feet were then hands and his even let when he would not helpless, pickup or tape he was rendered so that in futili- the same is an exercise place the wife drive proceeded defendant then this particular was about ty. Mr. so nose. Dr. Grammer eyes, mouth and tape over his belongings that on his home and his tape was Donndelinger testified that him, he stayed with night the defendants the victim a manner that sealed in such A.M. and got up them at 5:30 nevertheless eventually but for suffocated would have padlock leave so he could (See No. asked them to Exhibit knife wounds State’s the Court It inconceivable to verification). residence. 35 for person such a agree would 12)The to a evidence clearly establishes be- feigned burglary or robbery. yond a reasonable doubt that the murder was committed in the perpetration of a 6) The record is void of any by remorse burglary, and that accomplished either defendant at or near the time of the specific intent to cause the death killing. The head, blow to the the taping of Sterling Grammer. face, the binding of feet, the hands and STATUTORY AGGRAVATING CIRCUM- the killing, the manner in which the body STANCES FOUND UNDER SECTION was discarded and the selling of proper- 19-2515(f), IDAHO CODE ty even after shock would normally have The Court finds the following aggravat- set in vividly describe the true feelings and ing beyond circumstances existed attitude reason- towards the value and sanctity able doubt: possessed life by these defendants. (1) The murder was especially heinous, 7) There is no evidence that the victim cruel, atrocious or manifesting exceptional provoked the incident. On the contrary, (No. depravity 5). the victim was described as a hard-work- (2) By murder, ing, peaceful circumstances sur- quiet individual, and the rounding commission, its the defendant ex- record indicates that his relationship with hibited disregard utter (No. for human life the defendant was marked his kindness. 6). 8) The defendant was the “brain” behind (3) The murder was one defined as mur- plan scheme or and was the motivating der of the degree first 18-4003, Section force which set in motion the chain of Code, accompanied with the events which led to the cruel savage specific intent to cause the death of a hu- murder of Mr. Grammer. The defendant’s (No. man being 7). motive allegedly to get a new start in The Legislature, on behalf of people life and to avoid what she believed were Idaho, State of has determined that outstanding warrants for the arrest of her- a murder committed in the commission of self and/or the co-defendant. certain enumerated crimes is so offensive 9) The murder effectively silenced the society that it will necessarily be murder only eyewitness to the crime and the one of the degree first if there was specific person who could have identified de- intent to cause the death of a human be- fendants. ing. Premeditation and deliberation are implied by law in a 10) murder committed defendant, un- though unemployed der such circumstances, so defense coun- without a means support, was not argument sel’s that this jury did not find destitute, as claimed, she has inasmuch as premeditation elements of and delibera- her family own lived in this area tion on part of this defendant since offered to' take her just prior they did sign the verdict provid- form perpetration of and, this crime according to ing for the same is without merit. The the testimony mother, of her would have jury may well have determined that a con- taken her in time. viction for murder the perpetration of a 11) The defendant *16 years has over the burglary was the more appropriate verdict repeatedly to chosen associate with unde- since it was undisputed that this defendant sirable companions and has frequently co- not actually did inflict the fatal knife habited with men who trouble with wounds. The Court’s instructions did re- now, the law. Even despite all tragedy the quire, however, a finding of malice afore- and involving heartache Mr. Grammer’s thought and the necessary criminal intent. death, and the violence with which it was brought about, FINAL the defendant still desires CONCLUSIONS to marry Mr. Fetterly and to be with him Having fully record, the considered (See letters to file). the Court in the having duly deliberated the nature of the done, Code, this be requests that the Idaho responsibility to Court’s crime and the discretion finds will the Court its society, the Court with this and to defendant II, R., p. (emphasis actively participated in Vol. concurs.” that the defendant savage slaying added). of a man a few sen- judge the stated the brutal and When killing The intentional fully her friend. he had considered who was earlier that tences can what an offender from the victim nature of the took deliberated the duly life. fragile gift of restore —the never to the defend- responsibility and his crime will be no one who society, to there ant and final were the actions The defendant’s himself saying he was will doubt that being em- betrayal of another human (1) things: judges two other district all society. to the ultimate affront bodied law, state of the present under the mitigating concludes that The Court the deci- person who will make be the sole outweigh gravity do not circumstances or die of whether a defendant will live sion so as to aggravating circumstances un- agonizing experience as much as is an imposition of the death unjust make judge decision that a ever like other penalty. as is to the defendant has to make people forth in Section set will dying living. A between difference Code, 19-2515, requests that this be only him alter- judge open has trial done, in its this will the Court and with legisla- fulfilling duty his as the native of discretion concurs. him, it for or to decline prescribed has ture under the Finally, any punishment lesser legal basis that his own to do so on the imposed upon this case than that facts of good conscience convinced mind is co-defendant, Fetterly, it has Mr. when are in error in three members of this Court beyond established a reasonable been why present explanation as to their killing by was committed doubt that the legislative is not unconstitutional. scheme base, pur- defendants for a anti-social both yet deigned to so judge district has as No life, pose disregard for human with wanton judge one majority yet confront — only disproportionate to the would not be two any support for the yet has voiced crime, disparity but would be a that could by majority of three advanced theories rationally not be reconciled. problem. see no who contrary legal No cause or reason to the affairs, the trial being the state of Such shown, judgment has been and it is the mandate of the responded to the judge penalty that the death should this Court scheme, weighing performed the legislative capital for the imposed on the defendant him, exer- balancing required act she convicted. offense of which in him vested judicial cised discretion THEREFORE, IS, IT ADJUDGED imposed the death sen- legislature, and Degree guilty of First the defendant today agonizing only learn tence— over the sentence of, attempt perpetration Murder needless exercise was a burglary, by verdict of a perpetrate, a judge learns instead of futility. punished that she should be jury, and doctrine, “paramount exercise that of new by the penalty the death imposition Supreme today by the of discretion”— in a man- Board of Correction Idaho State History in itself. Idaho vested Court of R., May 1984. prescribed by law on ner points to majority opinion that the will note 6, pp. 0317-24. Yol. judge’s trial determination no error in the required of his and the law passage that the facts foregoing there is one From the im- penalty be the death discretion that deserving of additional comment majority on posed. To reach its result judge’s con- passage follows the and that weighed against opinion as nothing the face of its balancing that he found on clusion findings is obvi- judge’s 19-2515 the trial unjust imposition of the death § “make *17 exercising that discretion guilty of ously of passage is: “The will penalty.” That thought 19-2515, judge in this case the trial in which people set forth Section the 428 only not within his province, exclusive tencing, beginning Furman, which
but awesome responsibility as well. case years short later was by said High the court to have been have, What then, we misunderstood mis Supreme Court applied by the (by which various legislatures 3-2 state majority) has declared con- supreme courts. In legislative Creech, stitutional a State v. sentencing scheme 362, 105 Idaho which 670 (1983) foists off P.2d 463 onto the judges district cert. the 1051, denied 465 U.S. agonizing 1327, 104 burden S.Ct. making of 79 the decision L.Ed.2d it was thought between life and by death—a some function which in Justice pre-Woodson3 Huntley myself days had always made it been province reasonably within the clear that of the jury, the office and at of the at the torney general, same in Supreme response time Court which does its views of what High hesitate to the substitute its own Court was mandating, discretion for that of judge. the drafted legislation the To set presented aside a death it to legislature. sentence and the “remand for The office resentencing of the attorney general, accordance with so the as we expressed views heard from here- its solicitor ”in, general, which preclude views did reimposition the not draft that legislation pur of sentence, the death suant to cannot the will be said to of people, the and has an agonizing experience. pretended never that it did so. That the legislature passed legislation the conveys The majority makes much of Windsor’s only conclusion, one and it is not that those childhood and her background general. legislators were acting under influence All of these factors were first considered other than that the office of the attorney by the trial judge. The that, fact remains general who was advising the legislators just as judge the observed, two people, that passage of the new sentencing scheme Windsor and Fetterly, together set out required to conform to the views spree crime which culminated in the which the office of general the attorney death their selected victim. This is not then entertained as to High what the Court an Enmund4 situation —not even a distant had said. As often as the High court vacil cousin of Enmund. In that regard, the lated, the office of attorney general the majority opinion is internally inconsistent. had to respond. sought And and obtained Of a necessity to the reach desired result it requisite vote legislature. from the has created new law Idaho—that where year 1977, and following Woodson, su of another is attempted by peo- two pra, jury sentencing by fell ple wayside more than one way, he or she who favor of what we now have. Ida Would less successful yield must the hang- ho’s former scheme jury sentencing man’s to noose to the one to whom go must day be invalidated High Court? Not inflicting honor the blow or wound at all. only Idaho is gains which one out of three states produc- medical credit for in the ing fifty where expiration. victim’s not involved. What we learn is that well Returning to the passage above taken people, bar, served the the trial and the from judge’s trial findings, 19-2515 § trial century bench over a went down where he recited that the peo- “will of the the drain because the attorney office ple set forth in Section placed 19-2515” general in good’faith undoubted brought upon him the sentencing Windsor, is it about perceived what as a change man indeed will of the people? Or is it dated High Court.5 perhaps a temporary brought abberation on by the Supreme interference When Huntley, by Justice reason of his Court of the United capital States in sen- own knowledge law, of constitutional sug- Carolina, 3. v. Woodson North 5. Why 428 U.S. 96 not submit people issue to the (1976). S.Ct. L.Ed.2d form of a constitutional amendment? Florida, 4. Enmund 458 U.S. 102 S.Ct. (1982). L.Ed.2d
429
of
of the crime
determination
jury’s
non-jury
the
invalidity of
the
gested in Creech
guilty affects
defendant was
he
which the
response which
only
sentencing,
the
necessarily be
may
which
was this
sentence
majority of three
the
from the
gained
not
effect does
para-
incidental
that
singularly
imposed,
remarkable
single and
part of
integral
jury is an
that the
mean
graph:
argument
sentencing process.
Idaho’s
the
that
asserts
next
Appellant
effect
in
that R.S.
is made
§
that
unconstitu-
are
penalty provisions
death
was
the Idaho Constitution
is not
when
in 1889
tional,
jury participation
in that
right to be
decision,
a
but
adopted, constitutionalized
sentencing
required in the
cases,
capital
basi-
impose
by jury
a death
in
a
discretion
the
sentenced
rather
other
be-
judge. At
distinction
in a
the
cally
is vested
misconstrues
sentence
times,
have
juries
been
of deter-
factfinding function
or at other
places
the
tween
imposing the
role
the
integral
crime of which
given
degree
an
of
mining the
However,
that
hold
we
by the
guilty performed
sentence.
death
is
defendant
sentencing pro-
in the
jury participation
which
sentencing function
jury, and the
required.
constitutionally
not
cess is
court. Accord-
by the
performed
is to be
372-73, 670
Creech,
105 Idaho
supra,
1, 7, of the
Art.
that
ingly, we conclude
§
at 473-74.
P.2d
require the
not
does
Constitution
Idaho
sentencing
inadequa
jury
a
conceding
dismal
participation
the
Apparently
au
capital
the
response
process
documented
in a
case.
cy of that
the
both of
Creech
history of
thority and
inap-
only inept, but
reasoning was
This
Sivak,
Idaho
dissents,
105
v.
State
out:
pointed
well
plicable, was
(1983)
903-04,
cert.
P.2d
399-400
674
Creech,
670
Idaho
105
In State
—
-,
104 S.Ct.
U.S.
denied
strong con-
...,
a
expressed
P.2d
this:
majority offered
887 the
L.Ed.2d
re-
opinion which
majority
with a
cern
at the
that existed
the scheme
Under
Justice
view of
the
to discuss
fused
Consti-
adoption of
the
time
that
pointed out
who in dissent
Huntley
a
tution,
determined whether
jury
the
that
güarantees
Idaho Constitution
our
de-
or second
guilty of
person was
first
except on
be executed
person shall
no
degree of crime
the
gree murder. Once
today’s opinion
jury.
a
direction
determined,
factfinding
jury’s
was
dis-
deigning to
majority, now
same
certainly
is
completed.
It
was
function
ig-
issue,
completely
that that
cuss
im-
had an
jury’s
that the
decision
true
Huntley
Justice
written
noring that
imposed.
was
sentence which
pact on the
Creech,
rationalizes
myself
Thus,
jury
if the
determined
there
which we
the research
around
only the crime
was
guilty
defendant
absurdity that it
noting the
presented by
murder,
penalty
degree
no
second
sentencer
who was
judge
However,
only
is
imposed.
could
an accused
jury convicted
where
is true
consequence which
an incidental
same
at the
murder —but
degree
second
de-
jury finds a
every
case where
conceding
“that
facetiously
time
of-
included
guilty of a lesser
fendant
sen-
impact on
had an
jury’s decision
the defend-
with which
from that
fense
pure
This is
imposed.”
which
tence
Thus,
defendant
if a
charged.
ant is
if it
jury,
best. The
its
sophistry at
burglary,
degree
charged with first
degree
first
the accused
convicted
de-
second
guilty of
finds him
sent
accused
thereby
murder
larceny,
petit
burglary
perhaps
gree
As
indeed.
impact
anis
gallows. That
a sub-
have
will
determination
jury’s
dissent:
Creech
stated
impact upon the sentence
stantial
Walters,
1 Idaho
People v.
“In
How-
upon the defendant.
imposed
charged
(1869),
defendant
our
under
ever,
does not mean
jury,
degree. The
the first
murder in
is entitled
defendant
Constitution
degree convic-
knowing that a
While
jury impose
sentence.
first
*19
tion
required
execution,
recom-
drafting
1,
of Art.
section 7—which was
mended
mercy
the
of the court.
thereafter adopted by
people.
the
In-
“
jurors
‘We the
in the above entitled
stead the majority digresses into the
cause find the Deft guilty as charged
wholly irrelevant field of the judge’s dis-
in the Indictment and recommend him
cretion where the jury’s verdict was to
mercy
the
of the court.
convict of murder in the
degree.
second
L. Jackson
With equal facility the majority facilely
”
Foreman of Jury’
avoids discussing the teaching of
v.
State
It
good
cannot in
conscience be argued
Miles,
46,
43 Idaho
248 P.
(1926),
442
that from 1869 until Furman it was not
attempting to explain away the words
the jury which made the life or death
and wisdom of Justice Ailshie in In re
decision. Any lingering doubt as to the
Prout, 12
494,
Idaho
86
(1906).
P. 275
legislature
intention of the
should be dis
Instead the majority opinion speaks of
pelled by simply observing
following
the sentencing
in,
discretion
of all things,
the 1911 Amendment to I.C.
18-4004
§
burglary
gives
cases. It
us the remarka-
the
Idaho,
courts of
including this Su
pronouncement
ble
the jury’s
deter-
Court,
preme
continued to acknowledge
mination of whether the defendant
the jury’s function as sentencer, as was
guilty of first or
degree
second
murder,
carefully documented in my dissenting
or perhaps the include
of petit
offense
opinion in Creech wherein were set forth
larceny, “will have a
impact
substantial
verbatim the jury verdicts in [State v.]
upon
...,”
the sentence
and that such
Hoagland
405,
Idaho
[39
fendants
properly
held to answer for
She
case,
two,
prelimi-
for this
appointed
degree mur-
premeditated
crime of
first
a date set
nary hearing
requested,
charge
against
leveled
her
der—the
R.,
5, p.
hearing
8. The
took
for it.
Vol.
prosecutor’s
complaint,
criminal
and the
*20
scheduled, against
defend-
place as
both
charge
pursued
prelimi-
at the
which was
respect
The court minutes state with
ants.
nary hearing.
charge
that:
complaint’s
of murder
1,
Article
8 of the Idaho Constitution
Court,
considering
§
the testi-
after
specifically provides:
mony
presented,
evidence
found that
and
probable
the
had established
cause
State
person
No
shall be held to answer for
public
to believe that a
offense had been
any felony or criminal offense of
probable
committed and
cause to believe
grade,
presentment
or indict-
unless
commit
that each of the defendants did
grand jury
ment
aof
or on an informa-
one,
charged
the offense as
in count
first
public prosecutor,
tion
the
of
after
degree murder....
by magistrate....
commitment
Ordered the defendants
Court
opinion
majority
There
in Part IV of the
bound over to District
to answer to
Court
varianc
a discussion of variances and fatal
R.,
5,
charges.
p.
Vol.
10.
es, and there is mention made of two feder
day
And on
an
the same
order was entered
prosecutions
Supreme
which reached the
al
Swafford,
by Judge
presided
who
at the
States, Hamling
Court of
United
preliminary hearing, holding the defendant
States, 418 U.S.
94 S.Ct.
United
charge
to answer on both the murder
(1974),
Berger
L.Ed.2d 590
v. Unit
grand larcency charge
which we
—with
States,
55 S.Ct.
ed
295 U.S.
are
filing
not concerned. Two weeks after
(1935).
may
the rule
L.Ed. 1314
Whatever
Fetterly
charging
information
court,
Windsor was tried
be in federal
premeditated
degree
Windsor with
first
court,
guar
all of the
state
and entitled to
murder,
separate
and with a
count for rob-
Idaho
antees of the
Constitution—some
bery,
prosecutor
filed an amended in-
counterpart
in the federal
which have no
information, too,
formation. This
contin-
majority acci
Whether the
constitution.
charge
premeditated
ued the
first de-
the issue
dentally
purposefully
avoids
murder,
I,
gree
prosecutor
Count
but the
interest
raised
our
Constitution
apparently
saw need to add a court of
that issue has
ing speculation. The fact is
burglary,
separately,
an enhancement
finessed,
intol
and this is an
adroitly
been
predicated
deadly weap-
count
on use of a
state of affairs.
erable
on—the knife.
trial of
allows the
The Idaho Constitution
Thus,
felony
it is seen that
murder was
information
any person
prosecutor’s'
on a
charged
complaint
never
or in the
magis-
only
trate_”
by a
“after a commitment
Moreover,
critically,
information.
Const,
Here
Id.
art.
8.§
Fetterly
defendants
and Windsor were not
preliminary hearing on
there had been no
by magistrate
trial in
held to answer at
And, if the
charge
felony
murder.
charge
felony
district court on a
murder.
authority enough, the
Constitution was not
For that reason Windsor is correct
her
legislature,
people,
which is
voice
jury
assertion that
should not have
has also ruled in I.C. 19-1420
“[a]n
§
given
been
a verdict which allowed the
cannot be amend-
information or indictment
guilty
felony
to find her
murder —a
other than
charge
ed
as to
an offense
so
crime with which she had not been
held
has been
Quite
that for which the defendant
charged.
contrary,
prosector
(and
legislature nor
Neither the
charge
had made the election to
her
to answer.”
will-
Fetterly)
premeditated
degree
first
the Framers of the Constitution
ing to concede that mere expediency should
fense,
if any,
committed,
had been
so
prevail
against
the constitutional and
might
accused
not
placed
provisions.
statutory
Even the Court’s
upon trial in the circuit to answer to a
rule,
own
7(e)
I.C.R.
(formerly
7(d)),
I.C.R.
charge
greater
different or
than the one
purport
does not
to alter the substance of
on which he
examined,
had been
and to
the Constitution or the statutory enact-
answer which he had been held for trial.
ment. Nine
years ago
short
a unanimous
If
so,
this were not
we should have the
Court, which included
Bakes,
Justices
Don-
magistrate binding
offense,
over for one
aldson
Shepard,
myself
but
or Jus-
and the prosecuting attorney filing an
Huntley,
tice
wrote:
information for another and different
We are constrained to dispose
one;
magistrate
or the
binding over to
action
instant
on the following ground.
answer to an offense of one degree, and
It has been held that the district court
the prosecuting attorney filing an infor-
jurisdiction
lacks
try any
person for an
mation for a
higher
like offense of a
offense
information absent compli-
degree.” McGreevey, supra, 17 Idaho at
*21
ance
with
regarding prelimi-
statutes
459-60,
art. I 19-804; could be apropos I.C. added to what § State v. § Braithwaite, 119, 3 transpired Idaho 27 here: P. 731 “or we should have the (1891); West, 387, State v. 20 magistrate binding 118 premeditated over for (1911). P. 773 Ruddell, State v. 97 Idaho degree murder, first prosecuting attor- 436, 439, 391, (1976). 546 P.2d ney filing an information charge, on that In ensuing years, nine and the allowing none district of those court cited overruled; bases have been in nor consider both whether the defendant was good conscience could be overruled. guilty premeditated murder, not, and if In State v. McGreevey, 453, 105 17 Idaho P. whether the guilty defendant was felony (1909), Ailshie, Justice who also au murder.” Those interested readers who thored West, 387, State v. 20 Idaho 118 P. may peruse now the two cases cited in (1911), wherein McGreevey was fol will Ruddell find comprehensive the most lowed, wrote: discussion of the Constitution and the stat- People, 286, Yaner v. 34 Mich. awas ute in McGreevey. case identical in its facts with reference question The before this body not to preliminary examination, commitment, whether there was a fatal variance as information, with the case bar. at viewed under pros- federal law a federal The speaking court of the examination ecution, question but a of district court said: jurisdiction Ias it is understand —which only “And it is when it shall appear never waived. from such examination that an offense
not cognizable by a justice of
peace
committed,
has been
and that there is a
VII.
probable cause to
prisoner
believe the
VI I suggested
Part
that this was not
thereof,
guilty
that he can be held for
an
type
case. Here
Enmund
we have
trial.
(Comp.
Laws
secs. 7859
no
get-away
driver of a
completely
7860.)
car—
The clear evident intent of this
detached from the scene of a murder-in-
statute was
magistrate
that the
should
Hence,
progress
necessity
scene.
I see no
exercise his best judgment
matter;
in the
majority’s
for the
considerable exertion
should
he
from
testimony
deter-
reaching the
conclusion
“there is no
mine
charged
whether
crime
in the
merit
committed;
to Windsor’s
the im-
where,
warrant
been
contention that
case,
as in
position
penalty
of the
charged
offense
in-
was constitu-
cludes one or
degree,
more of lesser
impermissible
tionally
under the mandate
magistrate should determine which
of Enmund.
of-
Karla,
making
going
go
I’m
ahead
The trial court’s instruction
COURT:
my
time.
with
sentence at this
integral
murderous intent an
factor
felo-
obviously
I do
I
ny
you
murder was
erroneous.
I don’t want
to feel that
have
see, however,
lightly by doing
this matter
it
on this
considered
record such
arguments
shortly
so
after
of counsel
properly
error can
be assessed Windsor.
today.
heard
and the evidence we
matters,
Court,
in the other
as
VIII.
matters,
capital
has had these cases on
judgment
it
of all
While is
unanimous
day I
its mind almost from the
became
penalty
the death
here im-
five of us that
given
involved.
I have
them a lot of
aside,
posed must be set
with directions
thought
pros
and cons of what I
resentencing in accordance with the views
anticipated
arguments
I
would be.
majority
expressed
opinion
in the
by
have had the
statements
benefit of
Donaldson,
writing,
delivered
Chief Justice
counsel in
I
so could
some
perfectly
anticipate
position
seems to me that Windsor has a
extent
what
their
arguments
issue here which
to be
would be and what
their
valid
has
addressed.
would be.
prosecutor’s
memorandum
record,
p.
Vol.
shows that
it was
today
really
The evidence we heard
(so
dated March
1984.
It was filed
only
additional
factor
first)
to,
give
marked at
Clerk’s Office
had to
additional consideration
along
pre-sen-
review of the
Contrary
8:26 a.m. on March
1984.
tence,
light
testimony
that we
approved practice,
perhaps
even man-
today.
heard
rule,
nothing
dated
on the document
*22
purports to show that
it was served on
I
going
go
am
to
ahead and make this
time,
attorney
defendant’s
affidavit
decision at this
because I know is
—whose
involved,
important
everyone
ad be-
unequivocally
states
that she never saw the
only you,
people
cause not
but the
have a
accidentally coming
memorandum until
position
right to know what the Court’s
24, 1984,
July
across it on
which was some
going
I
is in this matter. But
am
days
120
after Windsor had been sentenced
right
to make
formal
reserve the
9,
April
to death on
1984. The affidavit
findings
decision in the form of written
support
was filed—and served—in
of Wind-
so that I do not run the
and conclusions
30,
July
sor’s
1984 Motion for Reduction of
misstating something or overlook-
risk of
up
hearing
Sentence which was noticed
ing something, so it will be
a formal
9,
p.m.
at 2:30
October
1984. There was
signed by the
written document and
argu-
also a defendant’s motion for oral
by the laws of the
required
Court as
motion,
July
ment on this
and on
8 the
Tr.,
4, pp. 638-39
State of Idaho.
Vol.
nothing
district court so ordered. There is
added).
(emphasis
I
which
can find in the record where the
judge’s
trial
What we have before us is the
prosecuting attorney claims that he served
pondering
own statement that he had been
this fifteen-page memorandum on defense
even before the
the defendant’s sentence
counsel.
hearing
he had indeed been re-
—and
hearing
aggravation-mitigation
Memorandum,
sorting
prosecutor’s
28, 1984, leaving the
conducted on March
argument
included much
based on
judge
clear
inference that the district
suspicion.
much surmise and
That Memo-
days.
for five
the memorandum on his desk
Appendix
randum is attached as
A. Also
court
There is no reason to believe that the
attached,
B,
remainder
Appendix
as
is the
served,
thought other than that it had been
remarks,
continuing
clearly
of the court’s
but defense
not see fit to re-
counsel did
demonstrating
contention
defense counsel’s
spond to it.
secret,
this
unserved Memorandum
aggravation-mit-
At the
the thread of the court’s sen-
conclusion of the
constituted
igation hearing,
spoke:
tence decision.
court
In considering
prosecutor
whether the
(1981);
Osborn,
State v.
acted inadvertently
affair,
sorry
one
(1983)
recognition by Supreme Court of the that, United States—in as defense counsel V. brings to our attention with the unserved I concur generally with majority given Memorandum court, to the trial opinion in Part V. We have before us a prosecutor the trial was willing to before clear case of an intent to Grammer, rob Mr. forego seeking the penalty, death having and in connection planned crime, written on January 1984: Windsor and Fetterly burglarious made a you aware, As are Karla Windsor is entry into private residence. It was go scheduled to trial on February might what be called an ongoing crime as a principal in the murder of compared crimes, to most and it would be Sterling Grammer. There is absolutely difficult for accept me to the proposition question no in my mind at trial that a the burglary was an instantaneous jury would return the same verdicts that fleeting affair which somehow evaporated Fetterly would, It did. there- killing before the of Grammer —whether it fore, seem to me to be appropriate to was a scheduled or an killing. unscheduled resolve the Windsor case by pleas. I place It took during either or out of the require would Karla pleas to enter ongoing felonies burglary, robbery, or charges same corresponding to the Fet- both. terly jury verdict. At sentencing, would recommend an indeterminate life on the charge, murder as well as at least III. one consecutive indeterminate as to the Again I concur with the majority opinion, charges. other Please review this and generally. least Where two co-eonspira- advise your me at earliest convenience engage tors in a criminal scheme which your position what R., is. Yol. p. 12. results in the the victim whom Proportionality, wherefore art thou? As I robbing, are it should make little dif- written, written and who defendants ference which of two did stabbing *23 are bound over for charges trial on of first happened to be a faster accelerating degree murder should have their verdict of death cause than the prolonged suffoca- and their fate by prosecuto- determined not tion. whim, rial fancy, vindictiveness, by but
juries.
I.
here,
More appropriate
however, my
majority gives
no reason
ruling
for
suggestiofi to the other members of this
issue,
as it does on this
but
only
instead
Court
that because
prosecutor’s
of the
states
its
of the
review
convinc-
record
grossly improper conduct at the
sen-
first
es it that the district court did not err in
tencing hearing,
though
and even
the trial
holding that
was not
Windsor
coerced into
court was not aware of the non-service on
giving the
she did.
statements
A review of
counsel,
defense
that first sentencing was
the facts convinces me otherwise.'
correction,
tainted beyond
and it is difficult
expect
Once Windsor
taken
custody
into
same trial judge can
wipe
transported
police
clean the
Moreover,
slate.
car to the Can-
it would
seem
particular
yon
that the
County
judge
September
trial
Sheriffs Office on
may
very
respond
10, 1984,
well
as did another
officers
highly
commenced a custodial
respected
who,
judge
trial
having
interrogation.
agonized
advising
Without
Windsor
once over a death penalty
sentencing, de-
her Miranda rights, Detective
Hen-
Jim
clined the offer to do so a second
began
time.
interrogating
sen
her about
Osborn,
State
102 Idaho
631 P.2d whereabouts of the deceased’s auto. Hen-
suppression hearing
only
at the
It is
after Detective Hensen had
sen insisted
questioning
he was not
Windsor about the
gained
damning
lips
this
evidence from the
homicide, just
missing
car of the
about
we are
Hen-
accused that
told that
To assert that such a “distinc-
deceased.
upset
agitated
“firm
sen’s
attitude”
scope
him outside
tion” took
Mi-
result,
supervi-
Windsor. As a
Hensen’s
incredible.
well
randa
Hensen was
sor,
Appleton
Detective Richard
relieved
Fetterly
that Windsor and
aware
Donald
interrogation
duty
Hensen of his
suspects;
they
and he knew that
had
began
calming
the task of
Windsor down.
by Canyon County
stopped
been
authorities
have to be too
One does not
creative
traveling
pickup.
while
deceased’s
guess
Appleton
by “firm
at what
means
provided
by
The information
to him
attitude,” when he said that he assured
interrogation
unconstitutional
of Windsor
Windsor that he was not mad at her and
allowed seizure of the car from which a
being.”
“human
treated her like a
That
knife was recovered. The state later intro-
testimony
leave
as to
can
no doubt
how
knife
duced that same
at the trial as the
Windsor,
interrogating
Hensen
alleged
weapon.
advising
murder
Without
why
Obviously by
he was relieved.
rights,
clearly
Windsor of her
Hensen
in-
interroga-
time Hensen
taken
off the
terrogated her
of incrim-
about the location
tion he had violated the mandate of Mi-
inating
evidence that
itself could be
Court; further,
randa and this
he had mis-
damning without a confession.
point
upsetting
treated Windsor to the
The fact that the statement was custodi-
greatly.
her
al is irrefutable. There also is no doubt
Taking
police
over
the old
“Mutt and
that detective Hensen
an
conducted
interro-
routine, Appleton
Jeff”
calmed Windsor
gation
as that
term is defined
this
down and advised her that
if she knew
Monroe,
Court. In State v.
103 Idaho
anything it would be better for her to tell
(1982),
Court, citing
“[T]he
Windsor,
only
randa refers not
express ques
custody
both in
and both definite-
tioning,
but also to
Grammer,
words or actions
ly suspects in the murder of
had
part
(other
police
than
rights
been advised of their
under Mi-
normally
those
attendant
to arrest and
randa.
custody)
police
that the
should know are
Appleton testified that he advised Fetter-
reasonably likely to elicit an incrimina
ly
report
and Windsor that his
would show
ting response from
suspect.”
Mon
given
voluntarily
a state-
*24
roe,
supra,
States Court nor this Court ever ecutor’s opinion guilt of the of both this intended that the warnings Miranda could defendant and her co-defendant. The re- be off until put an custody in accused lease of such clearly information was in after had agreed give to a statement. violation What of the American Bar Association in occurred this case Relating was a Standards concerted effort to Fair Trial and Free to convince Windsor Press. and her co-defendant Those standards in pro- issued give to a statement. vide as Only they follows: after agreed to do so they were advised From the time of arrest any ... in right had the good refuse. What criminal matter until the commencement you if right are you not advised have it of trial disposition trial, or without you until after agreed give up? it lawyer prosecution associated with the Therefore, under totality of the circum- defense shall not release or authorize the case, stances this which release any extrajudicial statement statement, of given was involuntary and inadmissi- by any dissemination means of public ble communication, and should have been suppressed. relating to that matter
and concerning:
(1) The prior criminal
(including
II.
record
arrests, indictments, or other
of
charges
Here, although I believe
change
that a
of
crime),
reputation
or the character or
of
venue would have been the better route to
the accused....
go,
study
a close
selection
(2) The existence or contents of any con-
shows
the trial judge
did not
fession, admission,
given by
or statement
case, as it seemed to me was done in State
accused,
or the refusal or failure of
Beam,
109 Idaho
exercise. or as to the On the merits of the nearly other case or percent the evidence in the jurors case. ABA had participated in Justice, Minimum prior Standards for Criminal trials with judge, the same but wheth- Relating Standards to Fair Trial and er experiences those earlier caused Free Press. the jurors to confessing avoid knowing too much pre-trial publicity, from and ac- only Not did the release of such informa- cordingly forming concealing opinions tion violate the American Bar Association thereto, respect is not a realm within standards, clearly but was also in viola- of knowing from this record. If the Court tion Disciplinary Rule 7-107 Trial Pub- reverse for a new trial because of licity of Code of Professional Responsi- instructions, error I vote that would bility adopted by the Idaho State Bar and change given venue motion seri- approved by Supreme the Idaho Court. ous reconsideration. For certain would prohibits Rule Disciplinary 7-107 essential- cautionary vote to protective proce- direct ly the same conduct as outlined in the ABA Canyon dures to ensure a fair trial in Coun- Minimum for Criminal Standards Justice. ty point briefly to factors are This information further indicates that the —and deep concern. district changed court should have the ven- inue this case. following flood of media coverage of Windsor and her co-defend- arrest Pre-trial publicity for Windsor continued ant, Fetterly, included released up information December commencement *25 by Canyon County 12, Office and Sheriffs her co-defendant’s trial on December the Canyon County result, Office of a supple- Prosecutor’s 1983. As she filed a two existence, arrest, prior regarding contents of a mental affidavits venue. Her confession, contain, exhibits, statements that both affidavits coverage as defend- victim, pros- ants Fetterly’s had stabbed the and the by defendant trial the Idaho
437 “Fetterly girlfriend and the Idaho Press Tribune. ... and his ... Statesman in the record are the tran- Also included who will be tried later ... are accused of scripts the local television station broad- robbing year Sterling 45 old Grammer publicity casts. With the new wave of killing his home then him.” Caldwell ... trial, brought by Fetterly’s Windsor’s name (R. 145) 143 and community continually before the tied Statesman, 5. From the Idaho Decem- degree man of first to a tried and convicted 14, ber 1983 public murder. The was reminded that Canyon County patrol- ... “A sheriff’s begin February. would Windsor’s trial Fetterly man said he saw and co-defend- sample reports representative A of these ant Karla Y. Windsor in Grammer’s state as follows: Sept. Chevrolet on 8...” Tribune, 1. De- From Idaho Press “Canyon County ..'. Sheriff’s Partol- 11, cember 1983 Sharp stopped Fetterly man John said he 27-year Fetterly “The old and a com- 8, Sept. and Windsor twice on once at 2 Windsor, 27, panion, Karla Yvonne also (R. 124) again a.m. and after 3 a.m. ...” Caldwell, charged both of have been with Tribune, 6. From the Idaho Press De- Murder, Degree Degree First First Bur- cember 1983 theft, deadly glary, Grand and use of a Craig ... “Detective Coash arrested weapon felony in the commission of a Windsor, 27, Fetterly and Karla near the connection with Grammer’s death.... intersection of Lake Middleton Road and Windsor, Fetterly and also were both they riding Lowell Avenue while were time, unemployed at the were arrested pickup matching description of a ve- by Canyon County deputies Sheriff’s missing from hicle found Grammer’s res- day body after Grammer’s was found. charges idence. Windsor faces the same couple driving pickup owned Fetterly. Her trial is scheduled to they ap- Grammer at the time (R. 125) February.” begin in prehended, police (R. have said ...” TV, Nampa, KIVI 7. From December 120) 14, 1983 2. From the Idaho Press Tribune of “Fetterly girlfriend ... broke December 1983 apartment in to the victim’s Caldwell “Fetterly’s girlfriend, Karla (R. robbing with the intention of him.” Windsor, 27, Yvonne also faces the same 148) charges in connection with Grammer’s Tribune, 8. From the Idaho Press De- death. Her trial is scheduled Febru- cember ary.” “Fetterly was arrested the follow- “Fetterly ... ... and Windsor were arrest- ing day along girlfriend, with his Karla by Canyon County deputies ed Sheriff’s day body Windsor, 27, they were after the was discovered.” Yvonne while (R. 121) riding pickup in a owned Grammer. charged has also been with TV, Windsor Boise, 3. From KBCI December with, first-degree murder in connection slaying. pair charged are also “Fetterly 27-year ... old Karla first-degree burlary, grand theft charged Windsor are both with murder. deadly weapon during and use of a February.” Her trial is scheduled for felony. commission of a Windsor’s trial (R. 107) February.” is scheduled for TV, Nampa, 4. From KIVI December Statesman, 9. From the Decem- 12, 1983 ber “Fetterly girlfriend, and his ... 26, Caldwell, being “Fetterly, ... year old Karla Windsor ... are accused first-degree Grammer, knew, charges tried this week on stabbing who murder, first-degree burglary grand during burglary of Grammer’s Fetterly theft. and co-defendant Karla home.” *26 438 Windsor, 27, Y. were Sept. arrested 10 with media coverage every detail
and accused of stabbing Sterling G. crimes Windsor charged was with a second Grammer, 45, 1201 E. Elgin St., ...” time around. pre-trial Evidence that pub- 10. From TV, Boise, licity KBCI was December exhaustive and inflammatory is 15, 1983 contained in the voir dire results. Four of jurors questioned ... “Defense attorney knew Van Bishop con- Windsor’s tended co-defendant no burglary had been convicted place took of murder. because Half jurors of the Fetterly questioned and 27-year old acquired Karla Windsor some were guests...: invited information about the case and Windsor will one juror face similar excused charges in when she February.” stated: “I’ve read much case, so about this I feel ... like I’m “Fetterly alleged accomplice, 27- prejudiced. I have opinion.” an year Tr., Vol. old Karla Windsor goes on trial in February.” (R. 114) 113 and 1.
11. From Idaho Tribune, objective Press Just an Decem- inspection of such voir ber dire results would indicate that because of ... amount “Fetterly and nature of pre-trial pub- arrested Sept. 10 licity, along there with his was a girlfriend, reasonable Karla likelihood Yvonne Windsor, that a fair trial could the day not be had in Canyon after Grammer’s County. It duct-tape is clear to body bound me discovered trial court floating in erred refusing pre- Snake River consider South of voir Nampa.” dire motion a change of venue. The extremely coverage detailed of the ... con- “Windsor’s trial on the same joint tents of the coupled confession charges is scheduled for February. Fet- other prosecutorial comments which terly were police told that he and Windsor prejudicial and planned unethical the continu- to rob get Grammer to enough ous coupling of Windsor’s name in the money me- to leave the area ‘get a new dia with that of murderer, convicted They start.’ Fetter- were arrested while driving ly, resulted in being her tried and convicted pickup owned (R. 129) Grammer.” even before her February trial date. Had 12. From the Statesman:, Idaho De- granted trial court change venue, cember Windsdr’s due process and fair rights trial ... “Fetterly, 26, Caldwell, was ac- would have been insured. cused with Windsor, Karla Y. 27, of breaking into Grammer’s home A APPENDIX Elgin E. St. on night Sept. 6 and RICHARD L. HARRIS Grammer, 45, stabbing to death during a CANYON COUNTY PROSECUTING AT- struggle the next morning. They also TORNEY charged with selling property they Canyon County Courthouse from his home afterward.” removed Post Office Box 668 ... “Fetterly and Windsor were arrest- Caldwell, Idaho 83606-0668 ed Nampa near driving while Grammer’s pickup Telephone: (208) truck.” 454-7391 ... “Windsor will be tried separately. IN THE DISTRICT COURT OF THE Her trial is (R. scheduled in February.” THIRD JUDICIAL DISTRICT OF 130) THE IDAHO, STATE OF IN AND 13. From the Statesman, Idaho Febru- FOR THE COUNTY OF CANYON ary ... “He and co-defendant Y Case No. Karla C-5576 Windsor, were accused Sept. 6 MEMORANDUM REGARDING AGGRA- murder of Sterling Grammer, G. 45.” VATION/MITIGATION HEARING OF (R. 153) KARLA WINDSOR As a trial, result of the Fetterly Code, 19-2515(b) Section provides Canyon County community was bombarded that: “Where person is convicted of an *27 being the other charge of Fraudulent death, may punishable offense which be by a Use of Credit prosecution Card. Further imposed sentence of death shall not be charges those was abandoned because of unless the Court at least finds one statu- present commission of the crimes. It tory aggravating circumstance. Where the pointed be should out the same credit Court statutory aggravating finds a cir- upon card which charge against cumstance, the Court shall sentence the based, defendant was used in California defendant to death unless Court finds possession to obtain Buick, of a 1983 which mitigating may circumstances which brought Canyon County and then presented outweigh be the gravity any pieces cut in parts. These facts have aggravating circumstance found and make by been Canyon verified County Sher- imposition penalty unjust.” of the death iffs Office. Code, 2515(f) Idaho provides Section 19— Although the defendant has a limited following that: statutory aggra- “The are record, criminal the defendant is not unfa- circumstances, vating least one of which at miliar with activity. criminal The defend- beyond must be found to exist a reasonable ant admits to heavy drug use and abuse. doubt before a sentence of death can be drug Heavy use necessarily con- involves imposed: tact with the criminal underworld. In addi- tion, (5) the defendant heinous, especially long murder was admits to involve- prostitution. ment cruel, or Her manifesting atrocious exceptional associates have generally depravity; been described as unsavory peo- ple, in trouble fact, with the law. In one of (6) By the murder or circumstances sur- boyfriends her past was murdered on commission, its rounding the defendant ex- the street. There has not been a demon- hibited disregard life; utter for human stration that the defendant has ever lived a (7) The murder was one defined as mur- life, law-abiding separate apart from der of the degree by Code, first vice, prostitution, drug use and theft. The 4003(d), Section and was accompanied 18— defendant, by her admission, own has a specific with the intent to cause the death long history of criminal conduct which is of a being.” human not revealed the formal criminal record. (D)Her home environment unset- tled and there apparent is an history of FACTORS IN MITIGATION sexual molestation step-father her at a (A) The defendant is somewhat educat- young age, placement resulting in a ser- ed, has one semester college ap- ies of foster group homes homes. pears fairly to be literate. However, the also history discloses that the (B) The defendant ability has the to ob- defendant been had involved in counseling tain employment. education, Because of programs age from appar- 13 to the defendant has some skills that could ently has had negligible effect on abili- her make employable. However, her past her ty to conform her conduct to require- history shows no consistently inclination to ments of the law. history points also employment maintain any desire out that spent defendant has time in productive society. member of homes, juvenile shelter hall and a school (C) The defendant a limited has criminal for incorrigible girls. adult, As an she has record. There does appear to be a continued to live on the drug street as a prior record, felony depending on whether user prostitute. and a Although the de- prostitution charge of 1978 is con- years fendant now 27 age, there is no felony sidered a or a misdemeanor. At the history that the defendant has made present offense, time of the the defendant effort or attempt living law-abiding, as a felony charges two pending, being one productive Indeed, member society. of a Possession Controlled Substance and entire record discloses that the defendant ostensibly
be sold so could raise mon- hardly anything has been more than a so- ey Again, to leave the area. it was Karla’s parasite. that, cietal By idea, instance, I mean most of in the first to commit the her entire life seems to have evolved crime. illegal
around illicit and conduct. (B) crime, *28 planning phase In the the (E) cooperate suggestion up. The defendant did hurt came the to Grammer Windsor, statement, police by giving point at one in her voluntary statement as making joke talks of it. I believe to her involvement in the about crime. It is belief, however, the reasonable inferences to be drawn from give that the decision to supports all of the evidence the contention police statement to the upon was based Fetterly that Windsor and knew from the fact that the evidence overwhelmingly indi- beginning, they when decided to commit and, guilt statement, cated giving a crime, they kill that would have to could, extent, defendant manipu- to some Grammer. late the facts and soften the effect of what actually happened. I also believe that al- (C) The defendants into Gram- broke though the defendant’s statement is incrim- permission mer’s house without his or con- inating, there is reason to distrust sent, him and there laid in wait for to come entirety being statement in its a truthful had, fact, they only If in intended home. account of happened, what inasmuch as her easily burglarize place, they could physical statements do not conform to the so, departing property have done with their evidence nor to reason or common sense. long ever came home. before Grammer However, they chose to wait for him so (F) The did actually defendant not wield vehicles, they that could take his as well as the knife that caused the death of the believe, they chose property. because However, victim. the defendant was him, murder inev- to wait for that present assisting and was the co-defendant only I believe that is the reasonable itable. in keep quiet the intent to the victim at the draw from the evidence. inference to moment the victim was stabbed to death. addition, In inception crime its (D) defendant, at trial and sug- this defendant’s idea. The evidence being truthful pre-sentence report, is not gests that willing defendant was a happened. The de- actually about what participant encouraged who counseled and testimony, attempted, by her fendant has nothing its commission. involvement, There is impact of her to soften the record suggest that would that this defend- stabbing occurred un- saying that the even responsibility ant’s for the murder prior her knowl- expectedly and without less, notwithstanding the fact she did fact, statement edge. In actual wield the knife. police gave to the indicated defendant Fetterly began struggling, when the victim II chest, knife, held it to his grabbed the IN
FACTORS AGGRAVATION per- he telling quiet, him to and when Fetterly then stabbed (A)It struggling, Karla Windsor’s idea to com- sisted done in the Fetterly the victim. All of that was crime. Windsor and were mit the assist- presence of the defendant who was living employed street. Neither was on the keep the victim ing Fetterly trying any apparent means of and neither telling struggling and who was also Although the defendant was of- from support. keep quiet that he would stay get on the victim to so place to until she could fered a nonetheless, neighbors door. feet, she, awaken the next rejected the of- not her addition, being truth- is not extended to the defendant fer inasmuch as the offer was tape duct placement ful rejected she the invitation so about her alone and First, says that face. she Fetterly on the over Grammer’s she could remain with living room his hands in the they taped committed as a The crime was street. says that the couch. She when he was on obtaining property which could means of ly resulting from inability to Grammer’s kept he falling asleep, they so moved him breathe. It was on the basis of that reac- living from the bedroom, room to the Fetterly tion that stabbed him to death. they where laid him on the bed so that he (E) victim, Grammer, nothing did would be more comfortable. She then provoke the which lead to his incident taped his says feet. She they also contrary, death. On the he took the de- asked Grammer to let pickup them take his food, home, gave fendants into his them let rings. and the Grammer did not volunteer spend night they them with him when to let them have any property of his place go, had no other and there is the defendants informed him that nothing suggest in the record to that he did going property take his anyway. anythipg At point, other extend the hand of says than defendant Grammer *29 agreed fellowship to be to up tied them. He was rewarded for make it look like a burglary help and by the his kindness and. the defendants’ authorities would not sus- pect he had been murdering him. It is taped involved. She then belief that face, his helped later cigarette him early smoke would committed the crime as gave him a night drink of water Monday except and then as for the fact that re-taped his face. says She approximately four-year-old boy spent Grammer’s the later, half an hour began Grammer night Fetterly already with him. made struggle and make precipitated noise which and, arrangements property the fence the stabbing. explanation gives she my judgment, only presence boy of the the square does not with the evidence nor does kept committing them from the crime at square with reason and common sense. that time. The evidence discloses that Grammer re- (F) The murder occurred to silence the ceived a blow to the head of sufficient only eyewitness to the crime. The record magnitude force and to cause loss of con- reveals great that pride Grammer took sciousness. There was glass broken all joy vehicles, in his letting even his wife over the bedroom. I suspect they clubbed drive them. The agree defendants him over the head with that bottle and then Grammer did not them want to take the put him on the bed tied up. him In- pickup rings or the prop- or the rest of deed, Fetterly’s statement is that “Karla erty, for that says matter. defendant tape cut the on his mouth so he could have agreed that Grammer to have his hands a drink of water and cigarette smoke a tied so that it burglary look like a then would put she tape the back on him. That’s and the suspect authorities would not nuts, when he started go put after she (Grammer) he had been the involved in it. tape back bn him. I trying to hold That statement obviously him still the defendant and he hit me in the head with his is false. Why would voluntarily head and Grammer that’s when I lost it.” Fetterly’s cooperate with the statement is much defendant the com- closer the truth than mission of the is the crime? He was a trial, statement of man of Windsor. At the means, modest testimony great his vehicles of Dr. meant a Donndelinger was to the deal to him effect that and it is placement the inconceivable that he tape of the over voluntarily give would property Grammer’s face created a seal so that he hand, could not defendants. through breathe On other either his nose Grammer acquainted or his mouth. Dr. Donndelinger with the also testi- defendants. He readily fied that had it not could penetrat- identify for the been defendants to the ing chest, police. stab wounds to the victim’s he Reason indicates that Grammer have, nonetheless, would died asphyxia- prevent was murdered to him from iden- tape. tion as a result of tifying The defend- culprits. defendants as the ant, Windsor, put tape addition, over the face of Grammer was killed at the exact that, alone, the victim would have moment the defendant was fearful caused his death had it not been for the struggling Grammer’s and noise immediate reaction as described Fetter- neighbors would waken the and reveal
Ill their criminal scheme. The defendant happen.
chose not to let that STATUTORY AGGRAVATING Snake body in the (G) Disposal CIRCUMSTANCES defendants’ of the evidence is further River (A) The especially heinous, murder was pre- and to crime up the attempt to cover atrocious, exceptional cruel and manifested murderers. detection their vent (5) depravity. also demon- the river body in Dumping (B) By the murder and circumstances bankrupt of to be defendant strates surrounding commission, its the defendant regard for compassion or feelings of disregard exhibited utter for human life. Indeed, it does show person. another (6) the defend- nature of depraved morbid personality. ant’s (C) The murder was one defined as mur- (H) property Sale of Grammer’s demon- Code, der of the degree by first selfish and callous attitude strates total 18-4003(d), Section accompanied and it was toward the murder which she had commit- specific with the intent to cause the death episode, planning, the ted. The entire of a being. human murder, body disposal and the statutory ground, I believe on this last property indicates to me that sale of the Court, some comment is order. The out in a manner the crime was carried *30 jury feelings toward Instruction No. submitted devoid of normal human person. proof positive upon they is two theories of murder another It warped depraved of the de- guilty and attitude could find the defendant under fendant. jury, by Count I of the Information. The verdict,
(I) guilty its found the defendant of Finally, totally the crime was sense- in theory degree the second of first murder exceptionally less and cruel in its commis- defendant, day sion. The crime that the on or about the 7th ostensibly for the purpose stealing September, Canyon County, of in property to obtain mon- of ey so get away aforethought, wilfully, the defendants could and with malice unlaw- get Sterling in fully intentionally a new start life. Grammer was a murdered perpetrating man of or at- humble means. He didn’t have Gene Grammer while way property certainly perpetrate burglary, much in the a as de- tempting of anything any didn’t have of val- fined in Instructions Nos. 19 and 20. The substantial Court, No. instructed the likely target robbery by ue. He was not a Instruction killing jury that murder is the unlawful of murder. It was a situation where the being aforethought. desperate defendants were and were suffi- a human with malice jury that ciently callous hardened in their out- The Court further instructed the may express implied. malice or It is look and manner that could rob and for, reality, pittance. express a if the evidence shows an unlawful murder a friend to kill a human I believe murder was inevitable even and deliberate intention being just It is stage of the crime. without cause or excuse. planning from the implied also. It if the evidence shows no considera- believe the defendant knew that provocation killing. It is also it would not take an ble for the seems to me that consequence implied of the circum- giant to realize the when evidence intellectual tape surrounding killing shows the placing the manner was stances malign stabbing presence occurred to avoid of an abandoned and placed. The detection, heart, stemming from natu- which means a condition of heart Grammer’s application regard and mind which has no for social or ral reaction to the tortuous Thus, implied disposed obligation. in the moral malice is tape. body killing piece garbage, like the evidence shows that a much a when Snake River high involving Again, it was total- resulted from an act or acts also to avoid detection. re- degree probability that death would ly exceptionally cruel. senseless and Further, perpetrator. nal intent of the suit when act or com- such acts have been a abet another to commit order to aid and purpose mitted for a base anti-social crime, wil- necessary that the accused it is disregard with wanton for human life. The way in some fully associate herself Court, in Instruction No. defined wilful wilfully partic- criminal venture and addition, as intentional. under the case something she ipate in it as she would Owen, Supreme of State v. the Idaho Court say, bring wishes to about. That is to basically has stated that where the homi- wilfully seek some act or omission she cide perpetration is committed of or make the criminal venture suc- of hers to attempt perpetrate one of the enumerat- beyond rea- The evidence is clear ceed. felonies, proof pre- ed of deliberation and wilfully doubt that the defendant sonable meditation is not essential. The reason intentionally committed all of the acts that it is not essential is that he who is make her an aider and abetter which would guilty perpetrating a crime which the beyond It the instruction. is clear under degree statute defines as first murder com- that the murder was com- reasonable doubt society mits a crime so offensive to perpetration burglary of a mitted therefrom, should death result it is murder spe- accompanied with the and that it was degree. of the first The Court further has the death of a human cific intent to cause “any person said that where commits or being. attempts major to commit of these felonies, he is motivated malice and IV killing when being directly of a human results, malice, it is murder because CONCLUSION murder, present. essential element of 19-2515, Code, provides Section perpetrating felon’s malicious act in the sentence of death shall not be attempting perpetrate planned crime imposed unless the Court one finds least justly regarded by the law as the causa- statutory aggravating circumstance. It is tive antecedent of the homicide.” In addi- beyond belief that the evidence shows tion, by Instruction No. *31 ag- reasonable doubt statutory that three instructed relative to the aiding law of and gravating circumstances in exist the abetting. Although the did not return present provides case. The statute further nominating verdict the defendant as an statutory ag- that where the Court finds a abetter, aider and the evidence is clear that circumstance, gravating the Court shall the defendant was an aider and abetter. It sentence the to death the defendant unless crime, planned was she that the it was she mitigating Court finds that circumstances placed who tape the on the defendant may grav- presented outweigh the which would have caused his but for ity any aggravating circumstance found wounds, intervening the stab it was she imposition unjust. and make of death In assisting who was in attempt quiet the weighing mitigating the circumstances the victim immediately before his death. circumstances, against aggravating the and says Instruction No. 12 that “aid statutory particularly aggravating the cir- assist, facilitate, abet” means to promote, cumstances, my aggra- it is belief that the counsel, encourage, solicit or invite the vating clearly outweigh circumstances the commission of the crime. The definition and, indeed, mitigating circumstances the encompasses activity the of one know- who mitigating depreciated ingly circumstances are participates by any such means in bringing significantly by explanations given. the about of the commission Therefore, mitigat- Participation crime. is wilful if it seems to me that the done volun- tarily intentionally specif- ing outweigh circumstances and with the do forbids, something gravity ic intent to do aggravating the law of the circumstances. specific is, or question with intent to fail to do The then do circumstances something requires. the law surrounding Sterling It contem- the death of Gene plates sharing by the aider of the crimi- Grammer and the involvement of the de- In approaching gave this sentence I first
fendant, Windsor, Karla imposition make consideration to the fact that it had to be of the death penalty, applies her, individualized; as it that I had to consider all unjust. In question, answer to that I mitigating re- available circumstances that again turn thought may to the bearing that on the your one must be issue of legal culpability, held moral or accountable the act as well as the person has aggravating might done. that This in circumstances bear defendant set motion the question. on that same chain of events which lead to the cruel and savage Sterling murder of Grammer. In position I took the that if I determined mind, my conduct, her actions and her culpability great was not as as the guilty she is as person as the who wielded culpability of the co-defendant Mr. Fetter- mind, my knife. In her responsibility is ly, so as to make a lesser sentence not be great greater person than the who unjust, then the Court felt it could consider I, therefore, wielded the knife. believe sentencing alternatives. that imposition the death penalty hand, On the other if the Court deter- this unjust and, fact, instance is not the mined after review things of those same only way justice accomplished can be your culpability responsibility for the savage senseless and murder of equal great the crime were to or as as that Sterling Grammer tois sentence the de- co-defendant, then in the Court’s fendant to death because her conduct de- judgment a lesser sentence would make the
mands it and justice ends demand it. only disproportionate, sentence not but disparancy would be a that could not be Respectfully day submitted this 23rd rationally reconciled. March, 1984. L. Harris s/Richard convinced, possibly is now The Court Harris L. Richard I even more convinced the sentence pro-
imposed Fetterly just on Mr. APPENDIX B slaying portionate savage to the and brutal that occurred to Mr. Grammer. SENTENCING then, question, So the your is what is The evidence we today really heard legal and moral culpability in these crimes? only additional that I have factor had to After considering the entire record before give to, additional along consideration Court, mitigation evidence my pre-sentence, review of the light aggravation particularly as it relates testimony today. we heard period time of the crime itself. going judgment am go ahead and make evidence clear that this plans time, decision at to commit crimes were con- because I these know it is *32 ceived, important involved, might not like a child that everyone bastard and be- accident, fling have resulted from a or an cause not only you, people but the have a plans put but were that into right were effect to know what position the Court’s after planning considerable and discussion this matter. going But I am to reserve you between and the co-defendant. right to make my formal decision in the form of findings written and conclusions so testimony We have the of Zeke Palacios that I do not run misstating the risk of concerning your with him as a contact something or overlooking something, so it fence property might to move the that will be in a formal written document and long period accumulated. There a of signed by the required by Court as you Fetterly spent time that and Mr. laws of the State of Idaho. yard discussing possibilities, pro school However, my feeling it is eon, that is a sterile period and then was a there way telling you my decision is. I you what time that for Mr. existed waited while prefer telling would you eye-to-eye, face-to- you Grammer to return had entered after my face what is. into Mr. decision the home of Grammer. life, productive lead a and to take the my belief, opinion my It is based on you course life that would have directed evidence, that when this matter is scru- in meaningful achieving manner in is, analyzed tinized and for you what it that goals you have talked about. Your mother were the brains and motivating force gave you opportu- has testified that she that set this catastrophe in I motion. do nity True, place of a to live. it did not not by saying mean Fetterly that that Mr. Fetterly, include despair Mr. but it was the equal did not have an possibly or even you about, that have talked to the Court greater involvement, why but insofar as it feelings you frustration and had at that up, came why happened and how it was mind, were your time manufactured in own happen, I believe that the evidence is inasmuch as the real support facts do not you clear that desired to have a new start position you that destitute that talk about. life; that there were the threats of the people There were you that loved alleged your warrants out for arrest and you for willing cared and were to extend arrest; for Mr. Fetterly’s and that the mo- open you arms to without the association of tivation was to obtain property, Fetterly. feelings Mr. I think that their finances, vehicle, escape to make the judgment and their of Mr. Fetterly was into a new life. I if you just well-founded. think would evidence, my opinion, absolutely life, history your look at the own that you willing participant. clear that were a your companions choice in has not been counseled, only encouraged You not but good, and of course I am certain there are the commission of the crime. rule, exceptions every might and there I hopes have searched the record in . periods time, by been for short but finding you some evidence of the fact that large your your association and contact way might some have been threatened people with primarily people has been Fetterly Mr. or that he had some kind of people in trouble or which were con- your judgment influence that would control structive or society. beneficial to That in the decisions that were to follow. Lis- may feelings have been from the you have tening morning particu- to the evidence this towards the underdog downtrodden and the larly, feeling you I have the are kind you are drawn in that direction. Jekyll of like a Hyde, you because are respects you compas- The Court for that person person who is described as a who feeling, ques- sion and that but without a compassion feeling has the under- mind, you tion of a doubt in are an dog helpless. or the downtrodden or the In right intelligent person, you know fact, period your you for a short life intelligent wrong, from and that can make very effectively have worked in those ar- decisions. time, eas. But at the same I think that the absolutely you evidence is clear that mitigating trying to look for factors commit, Fetterly, along able to with Mr. might decision influence the Court’s against person this heinous crime who culpability at the time of the com- you you into his befriended and taken crime, has taken mission Court given you home and food to eat. every into consideration each and one of pre-sentence mitigating In the and in some of the factors discussed coun- testimony you you have been described at times sel. did consider the fact that are *33 being gullible person capable being twenty-seven years age, as of of but I am not manipulated. my opinion mitigating Yet in the evi- sure that is a factor or a factor your against you, dence in in lifestyle, is that at least that works inasmuch as the years, you talking recent a de- decisions we are about is the deci- have demonstrated concerning night liberate choice the direction sion that occurred on the of the com- that, murder, your certainly I I By life was to take. mean that mission of this you you agree person the evidence have think would have to if a demonstrates that education, talent, ability twenty-seven years age, and the is not handi- Again, goes it back your association capped in manner, some that they are the with companions you pick up. age reason; they have experience life; in As your far as work history is concerned, and there is really justification no based it is sporadic. rather There no real sta- upon age itself. bility in your either lifestyle or work histo- The Court has taken into consideration ry. It is a matter of existence. And while your any record is void of convictions for it is not a criminal per se, record it is void violent activity. criminal any real merit or any plusses real that The Court can take into consideration the Court could consider. consideration, and does take places into but very little weight on the fact that are there I did into you take consideration the fact pending two pending felonies or were two cooperative were with the law enforcement felonies at the time of the commission of arrest, upon your you and that did admit this crime. The statement made some in involvement the commission of the prosecutor certainly supports the fact that crime. I don’t think it is surprise to there filing was a basis for the of those counsel, I because think present were charges, but the Court also in believes in Fetterly’s Mr. sentencing. Based on presumption your of innocence counsel hearing of testimony and review of the about, just talked it is consideration records, felt completion ever since the thought that the Court has about. the trial that while the statements bordered I think more importantly, may it while at times on the truth might of what have not be a history, criminal what fact is in happened, gaps there is serious in the testi- your history. The Court is aware—I do not mony, fabrication, there some there is necessarily bring want to it out to embar- some really distortion of what in fact did you rass or it cause to be a in discussion transpire based on the physical evidence open court, but there was some traumatic to the and produced available Court experiences your early life because of testimony form of and evidence also. I will your position in a home with step-father discuss that a little more detail later. you situation that caused to be removed or I have taken into consideration also that you caused to leave. you intelligent, you are have received train- Again the great has feeling Court ing fields, in various and that would make compassion position for the that were you possible you productive to be a mem- in at you that time. But placed society ber of but for these crimes. How- homes, foster Convent of the Good ever, you recognize the Court has to have Shepherd, and a shelter home. I believe inclination, point, not had the least from reading the record and analyzing the any particular employment to maintain record you before Court that did from any productive real desire to be a member time to away place- time run from those society, just long enough other than ments; you, by your testimony, that own get pillar post from or to exist from one spent years three in the Convent of the relationship bad to another. Shepherd, peri- Good and while there awas I you taken into have consideration that you od of time admit to far as did not inflict the actual knife wounds that prostitution, develop- was a mental there caused the demise of Mr. Grammer. How- you ment yourself allowed to be en- ever, later, Ias will discuss a little when in, gaged and that was survival cold, you case, look at the hard facts fittest, by using your body or whatever really it is a difference a distinc- without was necessary to survive on the streets. tion. probably history, And of that you because hardened, had become taken somewhat into consideration the fact your lifestyle course in you you has were not caused raised a stable home maybe environment, you might to make some decisions mitigat- but that is as as a far ing have made otherwise. strength circumstance loses certain *34 here, transpired upon only not what
based Fetterly with Mr. your conduct and life but you you consider the fact that were when necessary actions by your testimony own counseled and as- that. Whatever before your psychological adjustment for sisted you And cannot close be taken. would period between of time twelve to seven- maybe might that it your eyes to the fact really you teen. There is not evidence that beyond your wildest gone have even counseling. benefitted from that dreams, you when set force because that there I have into consideration taken clear, plan that like that and the motion you have had is no credible evidence that prized pos- you going to take a man’s are drugs. any to alcohol and/or But addiction castle, sessions, going his he is to invade by your own I think that the record is clear react, particularly position when he is in a again you that abused the admission identify you. signals The are all that to throughout drugs and/or alcohol use have to take whatever you going are your adult life. most him com- necessary to silence action is In looking aggravating at the circum- plete your plan. stances, I have to believe that most of the killing exceptionally was brutal. things I Fetterly’s said Mr. case are Fetterly’s I in Mr. applicable my judgment, I stated very here. recall well that one case, depraved first statements I made was that the was the conduct of a totally crime was senseless and any void of use the lan- Why mind. would the Court compassion feeling. or The facts are that applica- your says counsel is not guage that Mr. Grammer had only you befriended you is that when look simple ble? The fact on earlier occasions providing you with cold, facts, in hard absence place eat, sleep you food to but explanation that could any explanation, and actually in his home and about his you Fetterly, Mr. and it only come from or person you where could make a decision for in the record. is not yourself that he was a man of modest a blow to the back Mr. received Grammer means; that he did very not have much head, Donndelinger, according to Dr. of his property; and that property the little any person him have rendered would he did particular have had a sentimental tape, value The duct to him. like stature unconscious. During course, Mr. testimony placed upon was Gram- you of the trial then recall that his wife testified she was not I person, and am convinced mer’s even allowed to use pad- his car. That he mind, question of doubt I believe without left, locked his home when he and that on only supports that that the evidence night you over, he had stay provided a placed tape could have been way that duct place you Fetterly Mr. sleep, he was ren- Mr. was while Grammer you awakened about morning 5:30 in the so feeling for helpless, because of his dered you would not be left in his home property, the fact he home and his words, when he left. In other he was type He to be at work. protective of the belongings few material work, not miss even when person did that he had. ill, according to the evidence. he was Knowing that, knowing the little value you examine the tape, That when duct there, that was to set this crime in motion just lightly placed around pictures, was not is senseless and void of compassion or give feet so as to an individual’s hands or feeling. burglar- to be appearance that he was it is clear from the evidence that think robbed, placed in fact ized or but was your your plan- initial discussion and while rendered immobile around there so he was ning Fetterly burglarize Mr. tape duct was then helpless. home and Mr. Mr. Grammer’s rob Gram- mouth, eyes, his and his placed over his possessions, mer of his it was dis- cussed, mind, your and it was clear nose. *35 point there was an abandoned heart I you think all have to do is examine part on the you of and Mr. Fetterly in the Exhibit Thirty-five Number to see how fact the knife was thrust into Mr. Gram- plain clear and really evidence is in that body mer’s no less than five times. regard. pictures There are in evidence Your testimony you is that trying were that show Mr. body Grammer’s while it to down, hold him laying over legs his was still in the water before it had been while Mr. Fetterly was over the part main all, touched or any moved to extent at and of body. his The testimony my recollec- place. the mask is in tion is the knife was first chest, held to his Donndelinger Dr. testified about remov- trying keep quiet, him to silence him. ing his it that mask from face and the fact Then the knife was thrust body into his It would seem a sealed condition. the vicious manner in which it was.
very likely to the that if in fact that Court Now, if tape your that was over his nose had been course of conduct and ac- tions placed by you Fetterly, there either or Mr. thereafter had been different than killed, was, what it may after Mr. Grammer was for whatev- have tried to work reason, you just way did not around you er because want to believe were surprised appearance happened. see his facial or whatever rea- what had you But when look that, son, at the you would have told the Court facts subjectively and do not allow yourself get jury. and the into subjective part it, it is simply not there. Even after Mr. only people capable You are the that are Grammer had been killed in the manner in telling that, or the Court killed, you he was Fetterly Mr. the record is void of that information. The were residence, able to come back to that tape fact is that is demonstrated though you even had his car at that time Thirty-five, Exhibit Number is far down and could have removed property whatever below the nostrils or where there could you wanted, period and even after a of time any breathing capacity. have been It is in when the normally shock would set in if a sealed condition. you innocent, there is no indication Dr. Donndelinger further testified that that it was you effective as to either or Mr. Mr. lived, Grammer would not have wheth- fact, Fetterly. you did return to the er he had not, been stabbed or with the you proceeded home and pick up the few tape in position. Why you tape would belongings Mr. Grammer attempt- had and Mr. eyes, Grammer’s nose and mouth? In pawn ed to them or sell them to Mr. Palac- my opinion, after he had been rendered ios buyer or that he could obtain for unconscious, that placed eyes, over his you. Just common sense absent some kind nose, mouth, maybe you so could avoid type callousness and some of voidness identification. You could personal take his compassion for human feeling would property body from his and search him for have being caused the normal human keys his rings and take his or you whatever either turn themselves in at that time or had in mind. But he became conscious leave community. you But instead during period time, and even Fetterly Mr. drove nothing around as if though tape may may not have been had happened. You lied as to the property placed time, on before that at some time you possessed, even to people that were during tape that time placed on him friends, from, where it came it what was in that manner. fight- And of course he is you happened and how to have it. ing for his As I explained life. to Mr. Fetterly, anybody with his hands tied in the taking body, course, manner in which Mr. Grammer’s hands river in the manner in dumped which was were tied and his incapable feet were tied would explanation. I think I said fight very may existence. It Fetterly’s in Mr. sentencing you would caused up his head to come really animal, hit Mr. not do that to an let alone a Fetterly’s. But the evidence is clear to me being, human particularly being a human they meant to him senti- sions and what boy four-year-old aby loved you knew mentally. *36 face have to or later sooner that would your testimony you talked about en- in the killed had been father that his fact tering you the window. When entered the killed. been he had in which manner window, there was the bottle or whatever it body, particu- handling of the me that To dresser, knocked off and was that was about think had to you time larly after that all that the disturbance was over the immediately just not did you it, because entry. floor was as a result of that That happen it does body like dispose of up just you does not stand when examine thought was cases; again, criminal some facts, your purpose if to because was after home to the returned You it. put into get your go along you friend to with and body hours, then and twelve almost robbery, a burglary make it look like or is an me that To river. was taken you go along him to with that and wanted decency or morality or for disregard utter scheme, plan certainly kind of or he would loved on one’s might have it that effect not be inclined to do so if when he walked at shown no remorse There ones. glass in the house there was broken all relevant. it was that time floor, pulled over the his drawers had been now, you are in times since I have felt at out, things and were ransacked. That also in, there have predicament you are testimony has not been consistent with the feeling. and indication of remorse been today I heard here that have about how you capable are People have testified that are, you clean and neat because the room feeling, the time compassion and but of mess, had been ransacked and was a person that counts that counts and opportunity up clean there was the to that death of time and events of the around the halfway presentable your it if and make absolutely Grammer, no and there was Mr. go any true intent was not to further than person capable A of remorse. that go along try get to Mr. Grammer to he suf- going after the death that forward burglary. belongings selling personal his fered and the fact more indicative of I think it was there cer- trivial amount that was for the presence disguise your you intended any kind of re- tainly is not indicative of knocking Mr. unconscious Grammer I’m aware of. morse that prop- leaving with his covering his face and testimony is clear to Your the Court not, if he it or erty whether he liked you, particularly the record is that at the were your way, whatever means got about, talking time we are was not under necessary be taken. would mind-controlling drugs any the influence of the record alcohol, and searched your your intent or I have searched and/or so that provocation or some evidence state of mind could have been confused for simply not there. part the victim. It is affected or had some kind of control on the seems, to be way, it in fact He went out of physical you acts that took. You noth- you. He asked home, provide for according your friend had entered the and for the for his life testimony, lying ing more than night before and were castle. sanctity of his in wait for the return of Mr. Grammer. your
That because of financial situation thing that crosses the Court’s Another alcohol, you any drugs did not have or question of what upon the bears mind that your state mind was clear and so that concerning the mur- intent was your true capable making right decisions. you could conceive how it was der is transpired there- believe, upon what based go than Your intent was not to further in a after, could be that Mr. Grammer just try get cooper- Mr. Grammer to he in the manner which tied-up position you burglary ate with commission of that it up period of time tied robbery. already about was talked dispose property. take to when would the fact that defies common sense you of time days’ period posses- Even after two you think about he had such few it. The you fact tape could feel the going still had disposed of very proper- much your eyes, over your mouth, over and then ty value, and it has crossed the before actually proceeded, even over mind, least, Court’s what Mr. Grammer your nose. What happen would if your air supposed doing during to be all of this passage was sealed off when the knife was period you of time while were selling his pulled, you when so helpless rendered belongings, because that was apparently you couldn’t even scream or holler or necessary you before could leave town. It move or do anything. To me is certainly a just contrary inconsistent and to common heinous, crime of a atrocious nature. sense that he was to be left that condi- (6), Number the murder or circumstances period time, tion for that particularly *37 surrounding commission, its the defendant your prior based on knowledge of him. exhibited disregard utter for human life. I knew You that he would be missed think what legislature the and people the work, boy and his likely would be to come are asking us look at to is that murder by, ex-wife, or his or his other friend could spur moment, the of the or did it occur drop by. any really without thought put it, into and There was something prosecutor the dis- transpired what shortly thereafter, so that cussed that I want to make one comment the Court can look at totality the the of on. If your true intent just was to take surrounding circumstances its commission. property some having as a get means to And here we only lying have not the in wait out of town and life, start a particular- new and preparation thought and and discussion ly with the threats of alleged the warrants even with the fence to the property take outstanding, there ample was time while the when crime was against committed you were waiting, even in the yard, school person you who knew identify you could you could your have made entry, probably he unless was silenced. even sooner. But you hadn’t’ve, even if if you’d waited you did, until the have disposal time We the of body there the the and ample was time from manner in of, then until which it disposed Mr. was the Gram- mer driving came home to around couple remove the for a days of if property as nothing was I had happened, there. selling even believe of the vehicle belongings right was there. Certainly body he off the could itself. not be To me driv- ing type conduct, both of of indicated, I them. as I be- already lieve manifests such as depravity But I think that the real motive you was all offend standards morality of wanted the rings diamond and the location intelligence. human same, of the and Mr. Grammer had already you, told you, advised that he was not (7), Number the Court also feels is appli- going to depart or separate from cable, those in that it clearly is murder as defined belongings. again, So your intention, in murder of the degree first under Section my judgment, was to take the 18-4003, same with and examination of the instruction whatever force was necessary. submitted to the Court and the evidence Now, Court, before the I as far think it is statutory absolutely aggravating clear that the murder circumstances or the killing that the must Court in find accompanied case, this specific with the question Court without intent feels cause the (5), that number demise of a human murder especially being. heinous, atrocious, cruel, or manifesting de- pravity, applies to this case. It cold- argued Counsel has so, and rightfully I blooded, pitiless, and it was a senseless don’t fault her because she did an excellent killing. hardly can’t think of greater job case, in this but the jury somehow has torture than striking person of a not found deliberation premeditation, back of the head and the taping. The vivid and therefore isit type non-existent this portrayal of occur, what was you when of crime. I am confident that the jury may are helpless rendered anything do about very well have felt that since defendant make aggravating circumstances so as to knife, actually use did imposition penalty. the death unjust the of particular from that away stay preferred argued, the state has the will As aby finding is there But the finding. people has been set forth Idaho Code of the State people of by the twelve of 19-2515, very people and the will of the is of the State of people Idaho, does not feel it clear. And while the Court imputed legislature Idaho and mandatory because particularly bound into deliberation, premeditation malice, case, language particular is used this committed it’s when of crime type this particular feels and concurs with the Court enumerated certain commission therein, expressed and in discretion will course, because that, crimes, and ag- that where the I concur with the fact commit danger to propensity gravating outweigh circumstances do injury crime a serious kind of some circumstances, particularly as mitigating commission with the involved it is when penalty I have outlined the death as not crimes. particular those disproportionate. legal cause or reason No However, Court, in an effort to this shown, having contrary been it is the cautious, include in did nevertheless extra judgment pen- that the death Court finding of malice that the the instructions *38 alty imposed should be on the defendant there, and that it had had to be particularly capital for the offense for which she was killing intentional before to be an convicted of. be returned. verdict could So as difficult as it Therefore, has been for my again this intent to find is personally Court Court, as a it is evidence and the the defendant under the judgment considered impose that to a sen- Court, guilty law before this is of murder tence of less than death where the defend- having degree, of the first the same been ant directly aided and killing, abetted attempt of or perpetration committed in the where requisite found, intent has been punish- perpetrate burglary, and that would make the only dispro- sentence not imposed in the manner ment should be portionate to imposed the sentence on the prescribed by law. That the same should Fetterly, defendant but would create a dis- forty days occur no later than from parity in sentencing that could not be rec- date. onciled. further concludes that the de- Court Therefore, having taken into considera- second-degree burglary guilty fendant having tion and after duly deliberated the jury. verdict of the Punishment should nature of the respon- crime and the Court’s the Idaho imposed by be a sentence to sibility to the society, defendant and to for an indeter- State Board of Corrections Court finds that the actively defendant did five period minate of time not to exceed participate in this savage slay- brutal and to life years, the same to run concurrent ing person friend; of a who was her penal- imprisonment if for some reason the killing intentional took from the victim imposed. ty of death is not what an offender and this Court can never that the de- The Court further concludes restore, and fragile that is the gift of life. by the guilty grand theft fendant The defendant’s actions were the final should jury, punishment verdict of the betrayal of another being human and the to the Idaho State imposed sentence ultimate society. affront to for an indeterminate Board of Corrections Court, consideration, after serious years, fourteen period of time not to exceed mitigating concludes that the circumstanc- penalty concurrent to the the same to run es, greater while in this case than in the imposed second-degree burglary Fetterly, Mr. case of still at in when looked forth. hereinbefore set perspective particularly true period custo- capital time is relevant in a I will remand the defendant to the case, I said outweigh dy Canyon County do not Sheriff. gravity of the of the forty days. going less than I’m 3rd, May name that date. 1984. While the aside,
Court realizes that it will be set appeal,
there will be an required by it is
statute that it be set.
The defendant is remanded to custo-
dy Canyon County authorities to be proper
delivered to authorities Penitentiary. (Whereupon State
court adjourned.) then
In the Matter of the ESTATE Bar OF KEEVEN,
bara Louise Hurst
Deceased.
Sylvester KEEVEN, H.
Plaintiff-Counterdefendant,
Appellant, *39 WAKLEY, Representative,
Lila Personal
Defendant-Counterclaimant,
Respondent.
No. 15615.
Supreme Court of Idaho.
Jan. 1986.
Rehearing April Denied 1986.