*1
Petitioner-Appellant, Idaho, Respondent.
STATE
No. 17014.
Supreme of Idaho. 16, 1990.
Oct. Orofino, Kinney, petitioner-
Robert E. appellant. Jones, Gen., Thomas, Atty. Lynn E.
Jim Boise, respondent. (argued), Sol. Gen. DENIAL OF PETITION FOR ON REHEARING March Opinion No. issued hereby and this withdrawn therefor. is substituted *2 BAKES, Chief Justice. person who abused and misused women and children. The Matteonis’ affidavits al- appellant, Stuart, ap- Gene Francis leged experience that their with Stuart indi- peals the district court’s denial peti- of his gentle, cated that he was loving a and post tion for conviction relief. Stuart was caring person. Ms. Matteoni’s affidavit de- degree convicted of first by murder torture 1975-76, clared that in sepa- while she was three-year-old Miller, Robert committed husband, rated from her spent she consid- September on 1981. He was sentenced erable time with an informal rela- to death. His conviction and sentence were tionship. She stated that her appeal. young affirmed this Court on two direct Stuart, daughters spent See State also time with Stuart and (1985). June, 1986, P.2d 833 they Stuart filed extremely were fond of Stuart. petition post a conviction relief with the The affidavit further stated that Stuart petition district court. The claimed twelve cared for both of the children while Ms. separate grounds for relief. Matteoni against worked and that he was spanking discipline. children for She fur- In December of the district court “allegations ther states that the of abuse opinion rejecting petition issued an [against made Vicki Nelson have gave Stuart] Stuart notice that the court intended part by been related to me in Gene’s attor- petition pursuant to dismiss the to I.C. ney. my experience From with Gene opinion rejected 19-4906. The the vast Stuart, grounds signs he bulk of Stuart’s for relief because showed no whatsoever of any type those issues had been decided on direct of abusive me behavior toward or appeal, children, rehearing my no had been very much in contrast to the filed, they judicata. and thus were res testimony of Vicki Nelson as the same was The district court went find that Finally, related to me.” Ms. Matteoni ex- grounds, judica- three other while not res plains charges that she was unaware ta, legal any ques- did not raise issue or and trial and was therefore unable to come tions of fact which would entitle Stuart to testify forward and at that time. Ms. Mat- legal either relief. daughter teoni’s Katrina’s affidavit stated years age that she was 5 when Stuart reply Stuart filed a to the district court’s dating her mother. She stated that he notice of intent to dismiss which included them, punish took care of did not them and counsel, hospital affidavits greater willing testify that she was Simmons, employee Lynn David Matteoni to her detail recollections Stuart. daughter her Katrina. Each of these alleged four factual matters re- affidavits attorney filed an affidavit which Stuart’s lating pre- to evidence which had not been attempted to set out a foundation as to the viously presented and which felt precluded the Mat- circumstances which evidentiary was sufficient to warrant an during original testifying teonis from hearing. (1) proceeding. The affidavit indicated that Simmons, of David an ac- The affidavit investigative Stuart was denied sufficient Stuart, quaintance related that Stuart trial, (2) prior to due to assistance sought concerning him had advice from he was insufficient assistance unable discipline upbringing of the victim. until a considerable contact the Matteonis lay that Simmons’ The trial court concluded attorney’s the trial. The affida- time after he knew opinion given to whom attempts Lynn to contact vit described his newly dis- only casually, did not constitute “all to no avail.” The Matteoni which were require as would covered evidence such he final- goes point affidavit on to out that hearing. ly put in contact with Ms. Matteoni of 1986 and that he her mother October related. The The other affidavits were to contact Ms. Matteoni Janu- was able and her Lynn of Ms. Matteoni affidavits Additionally, Stuart’s attor- ary of 1987. contradict daughter purported Katrina forth certain back- ney’s affidavit set by the wit- testimony given at trial State’s allegation ground regarding Stuart’s as a facts portrayed nesses which judgment Pleadings plea bargaining negotiations that certain 19-4906. pleadings.— ... arbitrary. being resulted satisfied, (b) on the ba- When a court is considering response After Stuart’s mo- application, the answer or sis order, court’s December tion, record, applicant is that the *3 opinion a court issued second district post-conviction relief and not to entitled opinion again May of 1987. That reviewed by any served fur- purpose no would be grounds post for conviction two of Stuart’s may indicate to proceedings, ther first opinion relief covered in the and addi appli- parties its intention to dismiss newly tionally dealt the claim of dis doing. so its for cation and reasons out covered evidence set in the affidavits. given opportunity to applicant an shall opinion, In this second the district court reply days proposed 20 dis- within (1) preliminary hearing held that the use of light reply, or on de- missal. In testimony was lawful and thereof, may fault the court order that, therefore, allegation petitioner’s grant application dismissed or leave required legally insufficient and no application, or direct file an amended (2) hearing; was not proceedings that Stuart’s sentence that otherwise continue. manner; (3) Disposition pleadings on the and record and arbitrary imposed an a if exists material proper is not there allegation newly discovered that the fact. issue of proffered by the affidavits evidence was Drapeau appropriate not meet the standard set held it is did This Court has post State, (Ct. application dismiss for conviction 103 P.2d 546 an v. Idaho 651 evidentiary affording an relief without App.1982), in that it failed to raise sub statute, hearing, allega- if under this prob question of fact which would stantial uncontroverted, tions, though do not entitle sentence, change ably the conviction or State, applicant to relief. Clark hearing. requiring evidentiary thus an case, (1969). In P.2d 54 this Court, appealed to and on Stuart this memorandum deci- the district court’s two 10, 1989, opinion March we issued our af- complete In sions are and well reasoned. firming the denial of district court’s correctly opinion the district court the first petition post Stuart’s for conviction relief. substantially all of observed that Stuart’s peti- petitioned rehearing, for appeal, in the direct claims had been raised granted on June 1989. After tion was State v. briefing reargument, additional we (1985), judicata. thus res Of were not district court did err conclude that the remaining, those issues post denying petition for convic- they legally Stuart’s insufficient. found that were newly relief, claim Specifically regarding district court’s tion and affirm the evidence, stat- the district court discovered dismissing petition for judgment Stuart’s whole, new “[cjonsidered ed that as a this 10,1989, post relief. Our March conviction questions material evidence does raise withdrawn, opinion and this fact, against the especially when viewed substituted therefor. overwhelming evidence backdrop of sure, this produced at trial. To be evidence con- not have affected the probably re- sentence.” We have viction or the trial court’s In from the whether viewed the record to determine petition post conviction dismissal of material fact existed genuine question relief, argues trial court did we that the district court conclude dismissing petition his summarily erred petition for dismissing err Stuart’s evidentiary hearing conducting an without relief. We review each post conviction decision The district court’s on the issues. separately below. Stuart’s contentions petition evi dismiss Stuart’s without hearing was based on I.C. dentiary II 19-4906(b), which reads: § separate three argues district court
grounds existed for the
grant
hearing
on his
post
formal
contemplated by I.C.
conviction
grounds
(A)
19-2516,
relief. Those
are
may
the court
reach its sentenc-
§
the use of preliminary hearing
by receiving
decision
the unsworn for-
purposes
(B)
of sentencing;
sides,
mal
presented by
Stuart’s
statements
both
rights
claim that
together
were
by plea
presentence report
violated
with the
bargaining negotiations;
(C)
arguments
respective
newly
counsel.”
dis
covered evidence which
district court
was raised
noted that Stuart did not
make
explicit request
four affidavits submitted to
for a formal
the district
hearing contemplated
19-2516,
court.
I.C.
rehearing granted by
and that Stuart himself
rely
Court on
June
Stuart raises for
“intend[ed]
on trial testimony
argument,
and was
first time the issue of whether or not
*4
demanding
compliance
strict
there was
with the
proper weighing
mitigat
of the
testimony formality
live
ing
of I.C. 19-2516.”
against
circumstances
ag
each of the
§
We conclude that under
v.
gravating
State
Osborn
required
circumstances as
in our
Coutts,
4, 1989,
prelimi-
State v.
the use of a
April
opinion in State v. Charbo
nary hearing transcript
neau,
129,
the sentenc-
(1989).
116 Idaho
not error sentencing where no formal hear- ing provided in I.C. 19-2516 had been A. requested.1 Preliminary Hearing Testimony Use of B. argues Stuart the trial court by considering preliminary hearing erred Bargain Plea testimony sentencing hearing. at the This Next, Stuart has contended that issue was not raised Stuart in his direct State offered not to recommend the death Stuart, 163, appeal, 110 State v. Idaho 715 penalty if pleaded guilty Stuart to first (1985). Nonetheless, alleg P.2d 833 degree murder rejected torture. Stuart es that the error is “fundamental” and can According the offer. follows raised time. that, trial, by exercising right to a
The
penalty
imposed
trial court
this case considered the
arbitrarily,
death
was
testimony
transcript
from the
pre-
appellant’s rights
and in violation of the
liminary hearing, relying upon our decision under the fifth and fourteenth amendments
405,
Osborn,
Constitution,
in State v.
102 Idaho
631 P.2d to the
United States
art.
(1981),
I,
13,
upheld
prelimi-
187
the use
which
7 and
of the Idaho Constitution.
§§
contention,
nary hearing testimony
sentencing
rejected
in a The district court
penalty
pointing
petitioner
death
case. The
out that it was
first
Court Osborn
who
plead guilty
manslaughter
based its decision on our earlier decision
offered to
Coutts,
110, 113,
rejected by
v.
101 Idaho
609
was
the State. The
State
which
(1980),
hand,
State,
P.2d
645
which held that “in
on the other
offered to with-
explicit request
request
penalty
for a death
for a
the absence of an
for the
draw the
post
ing
contesting
from our decision in Stuart I
our
1. The trial court in its
conviction decision
claim, specifically
stipulated
pointing
was
at the sen-
also denied Stuart’s
statement
tencing hearing
that ”[i]t
original
sentencing
out that in Stuart’s
Court,
direct
to this
that when
the defen-
Stuart,
present-
v.
110 Idaho
dant the court would consider evidence
715
(1985),
preliminary hearing
along
and trial
this Court had held that
ed at
investigation report."
stipulated
sentencing hearing
presentence
at the
with the
was
”[i]t
sentencing the defendant the court
State v.
In that the affida- petition- Matteoni all of the at trial was that evidence newly every vits did not contain discovered evi- he er abused woman with whom an probably produce ac- dence came There evidence of in contact. was sentence, change not, or the trial quittal others that he did and Matteonis’ court stated: experience only have with Stuart would cumulative of other evidence. As exception been this
Initially,
court takes
Drapeau,
in
97
this Court held
State v.
petitioner’s
conviction re-
conclusion that
(1976), evidence,
totally
from the testimonial
sulted almost
Matteoni,
age
her
typed
exe-
than 17. That would have made
of Katrina
2. The
affidavit
21, 1987,
acquaintanceship with
defen-
February
she was
time of her
states that
cuted
variously
years.
years
age,
February
dant
and 6
in
between 4'/>
then 17
years
August
years
age
Since
affidavit was executed
after
in
of 1975 when her
her
5‘A
events,
lapse
young age
dating
of time
began
her
defendant Stuart.
mother first
However,
handwriting
con-
were
factors for the
court to
in
corrected
relevant
the affiant
name,
deciding
weight
given
sider
to be
spelling
of her
in
affidavit both as to
age
years,
rather
affidavit.
also
her
corrected
discovered,
though newly
Drapeau,
even
which is
97 Idaho
teoni affidavits constituted
evidence,
ered”
the affidavit of Stuart’s
III
only
counsel states that he was
able to
Lynn
rehearing
argues
locate
Matteoni as the result of an
now
On
to me
October
letter “written
time that the trial court erred
the first
Everson,
Lynn
Pearl
the mother of
Matteo- weighing
mitigating
circumstances
ni, requesting that I contact her.” How-
aggravating
col
against the
circumstances
ever,
Lynn Matteoni states
relying
the affidavit of
lectively,
separately,
rather than
they
during the time in 1975-76 when
recent
of this Court State v.
decision
periodically
living together
were
at one an- Charboneau,
873 bargain. of The facts stated affidavit violation I.C. and no Ckarboneau attorney have been con- in this case. Stuart’s should 19-2515 has occurred of being of purpose true for the sidered as deny- of district court judgment peti- to determining whether dismiss the dismissing petition post ing 545, State, 542, 96 Cooper v. Idaho tion. is affirmed. conviction relief 1187, (1975). 531 P.2d 1190 McDEVITT, JJ., concur. BOYLE and view, my plea bargain a proposed In proposes not seek prosecutor a to JOHNSON, Justice, concurring and must be treated differ- penalty the death dissenting. plea bargain. ently proposed than other majority concerning concur with imposition the state seeks Where preliminary hearing testimony use penalty impose we the strict- death should concerning allegations sentencing to standard of review determine wheth- est newly evidence. dissent discovered rights has er the state violated the majority’s affirm the from the decision to impose a penalty Death cases defendant. portion trial court’s dismissal held duty on This court has special us. post petition in which he Stuart’s conviction that we must review death sentence to alleges that the state offered not recom- our “qualitatively different than review penalty plead if would mend the death he ordinary criminal sentence.” State degree guilty to first murder torture. 387, 380, 110 716 P.2d Scroggins, agrees majority with the trial court’s 1152, (1985). Justice O’Connor there was no merit to conclusion recently Court has Supreme United States that, by entering Stuart’s contention into pointed out: negotiations, right jury his constitutional to Amendment, Eighth the death Under the trial was violated. The for both rationale penalty differently from has been treated majority’s the trial court’s decision and the See, punishments. e.g., all other Califor accept is that Stuart did not Ramos, 992, 998-999, nia v. 463 U.S. plea bargain proposed and that the sentenc- 3451-3452, 9, n. n. 103 S.Ct. have court would not been bound (1983). Among most L.Ed.2d accept plea bargain any event. important in this and consistent themes view, my prosecutor when offered not penalty jurisprudence Court’s death penalty, im- seek death Stuart was special care and need deliberation permissibly forced to choose between exer- imposi may lead to the decisions cising right his constitutional to a tion of that sanction. The Court has proceeding the pros- accordingly unique imposed series ecutor’s recommendation that he not be procedural restrictions substantive and By choosing sentenced to death. to assert designed capital punish to ensure that right, penal- his constitutional Stuart was imposed ment is not without serious prosecutor ized when the recommended ought precede and calm reflection penalty following his death conviction. gravity finality. any decision such support In his affidavit in of Stuart’s Oklahoma, Thompson v. 487 U.S. post conviction review Stuart’s 108 S.Ct. L.Ed.2d attorney stated that on several occasions (1988). While these cases did not address re- prosecutor offered withdraw his *9 penalty rights jury to death defendant’s quest imposition penalty the if death law, process trial and to due we should agree plead guilty to a Stuart would to apply degree special same care degree by torture. charge of first murder determining rights have whether those prosecutor In response his unverified been violated. stated that to the best of his recollection Jackson, In v. 390 U.S. United States this offer was never made. Because it was 570, 1209, (1968), form, 88 20 re- S.Ct. L.Ed.2d 138 not verified or affidavit Supreme struck death sponse allegation of Court down the did not controvert the provision Kidnaping concerning proposed plea penalty of the Federal petition 874 penalty
Act because death could need be to research the Statute. had not imposed only if the defendant exercised the prior finding Transcript done that to —.” right jury 973, to trial (the and was convicted. It at v. 14865 No. imposed could not be if the defendant appeal). prosecutor subsequent- direct right jury pled waived the to trial or guilty. ly request filed a notice intent to The Court stated: sought penalty penalty death the death sentencing. power Congress the time of
Whatever to im- pose penalty a death for violation of the I would reverse the trial court’s dismis- Act, Kidnaping Congress Federal cannot post sal of the conviction as impose penalty such a in a manner that allegation relates to prior to the trial needlessly penalizes the assertion of a prosecutor offered to seek the not right. constitutional plead if penalty guilty death Stuart would 583, 1217, 390 88 U.S. S.Ct. at 20 L.Ed.2d degree to first murder I would torture. at 147. hold that if the trial were to allegation convinced after a on this involving
In a later case not
the death
prosecutor
that the
had in fact made such
penalty
apply
the Court
to
declined
Jack-
offer,
an
trial
have
son to invalidate a
court should
resen-
penalty
more severe
considering any
tenced
imposed because the
Stuart without
rec-
defendant chose to
doing
prosecutor
of the
jury
have a
trial.
In
so the
ommendation
the im-
Court
pressures
forgo
position
“the
death penalty.
said that
to
trial and
of the
plead
charge
to
to the
are not
...
what
penalty
death
Where the
issue the
they
were
Jackson.” Corbitt v. New prosecutor
agent
state
as
of the
should
212, 217,
492, 495,
439 U.S.
99
Jersey,
S.Ct.
penalize
be allowed
the defendant
(1978).
466
The Court
L.Ed.2d
focused
having
recommending death after
forced
penalty
that “the
the fact
death
...
defendant
choose between the exer-
‘unique
severity
irrevocability,’
in its
right
cise
jury
of the
to a
trial and the
153, 187,
Gregg Georgia,
428 U.S.
opportunity
go to
with the
2909, 2931,
(1976).”
S.Ct.
Robert a being, human repeatedly ly caused his primary issue, death. The with the intent to suffering cause or to considered both at trial and on Appeal, satisfy some sadistic inclination of Appellant’s actions, not but his state Stuart, thereby said Gene Francis inflict- September 19, 1981, of mind on day ing great bodily injury upon Robert Mil- acts these were As committed. the Trial ler, mortally wounding Robert Mil- pages Court indicated on 449-450 of the ler, from which wounds the said Robert Transcript, quoted Trial by this Miller, year a boy, three old 3, 1985, sickened and in May its Opinion at County Clearwater, died in the of pages 11-12: Idaho, of day September, on 19th of particular COURT this ... ‘[THE In] 1981. case, the Prosecutor must convince charge, defendant, To this Gene your the trier client was of fact Francis plead guilty. has not engaged in a course torture. And of R., 53, death, However, produced I. this child’s the district neces- gave sarily jury intending only another death but instruction in- language tending charge case, inconsistent torture And so with the of ... great extent, going to a Amended Information: is to turn jury going what thinks was on in INSTRUCTION NO. 18 your during client’s mind that interval ’ when he dealt with this child ... killing
Murder is unlawful of a being above, human aforethought parties malice As noted all were or the application question intentional charge of torture aware could being, to a supported human results by showing a in- of being. death of human part is on the Appellant Torture tent of to cause intentional infliction pro- suffering of or satisfy extreme to some sadistic in- longed pain Indeed, with the intent to cause suf- clination. this element of intent fering. It shall also be torture to in- was considered the Trial Court to be important being a human so admittedly extreme and that it allowed flict prolonged brutality irrespective prejudicial presented acts evidence to be of proof concerning events, intent to suffering. cause Trial unrelated to the of of charged victim, The death being human crime caused to its and which such allegedly (10) torture is murder irrespective of occurred as distant as ten proof prior specific kill; years intent to torture the date of ROBERT MIL- causing equiv- Jury shall death. death be deemed the LER’S Instruction Number alent of any necessity intent kill. which obviated a finding intent suffering, to cause R., 55, (emphasis added). Stuart I Counsel if extreme and prolonged acts brutali- aptly wrote: existed, ty were have ex- found Bistline, As noted Justice this In- tremely improper given specific lan- struction jury relieved the re- guage Amended Information. It sponsibility proof to find intent that, equally apparent if such intent suffering. cause permitted It also proven, propriety need not be al- finding guilt if found extreme lowing admittedly prejudicial evidence prolonged acts of brutality have intent, purposes establishing existed, despite the fact that such acts seriously questioned. If intent to cause charged were Infor- Amended suffering need proven, not be it cannot mation, supported by any nor reasonable probative be said value of this construction events which oc- outweighed highly preju- evidence its September Appellant curred dicial effect. that, readily acknowledged at September young poked Appellant’s Support he Memorandum in of Pe- chest, spanked (filed Rehearing ROBERT MILLER in the tition 3-5 him, 1985) added). July (emphasis and struck the blow which ultimate-
877
said,
pen-
‘Death
legislature has
it. The
rehearing
granted
limited to
A
but
different,’
whatever
Jury
alty cases are
giving
error in the
the issue of
nothing
/
reason,
finality if
else.
on the
appropriate
18. An
order was
Instruction
your
perceive
really accept
Iwhat
don’t
a brief
directing
entered
the State to file
be,
apply
argument
to
we are
brief,
to
that
responsive
only
but
to Stuart’s
penal-
a
procedural
rule in death
issue,
default
single
allowed to file
and Stuart was
appellant
ty
for the
because counsel
case
brief.
reply
a
point
in the initial
did not raise
Thomas,
General, Lynn E.
The Solicitor
briefing
has raised
on it but
brief,
five
page
the State’s
authored
I
you
why
tell me
shouldn’t
it
Now
now.
“pro-
gist which was that Stuart was
way, Mr. Thomas.
think that
cedural default:”
Well, in
context of
MR. THOMAS:
question
The failure to raise
constitution, if I can start
the federal
procedural
appeal
default
there,
Supreme
States
the United
here,
precludes raising
issue
times
emphasized several
seems to have
proceedings,
Wat
post-conviction
procedural
as
rules are
as far
State, 101
v.
kins
concerned,
any difference
it doesn’t make
courts,
(1980),
the federal
or
capital
is a
case
whether the case
Sykes,
Wainwright v.
433 U.S.
important
It’s
kind of case.
another
(1977).
JUSTICE BISTLINE: What's correct? going this case is over to the federal That we would or would not? they’ll any- court and make the decision way.’ really you Because that’s what do
MR. THOMAS: You would not have
you
when
don’t insist on adherence to the
authority
go beyond
sentence re-
procedural
state’s
rules. And I
only thing specified
don’t
view which is the
idea,
good
really
think that’s
a
because
automatic review in the context of the
you’ve got on collateral
capital case.
It’s almost inconceivable
review a feder-
going
that there’s not
to be an
al court is at least twice removed
case,
capital
let us assume the
the facts. The record becomes more at-
a fair
and a trial
The chance of factual error
defendants
tenuated.
greater and obvi-
the defendants that due
greater
jury,
becomes
and denies
ously
finality
guaranteed by
interest
is attenuated
14th
process
law
as well.
United States Consti-
Amendment
tution.’
231-33,
I,
(1948).
Cole,
supreme
the state
court
suggested
procedural
As
above
default
petitioners’
had affirmed the
convictions
occupied
major-
must have
the minds
invoking
charge
not included
infor-
I,
ity
deciding
Stuart
because that
mation. The
defendants were tried
Cole
challenge
jury
how
initial
Stuart’s
violating
and convicted of
state
§
summarily
instructions was
treated:
supreme
upheld
their convictions un-
appellant’s
accept-
counsel
1
note that
der
of Act 193
the 1943 Arkansas
[W]e
court,
error,
legislature.
compound
given by
ed
To
the instructions as
objection
state
he
court:
and noted that
had no
to the
give.
instructions the court intended to
petition
rehearing in
later denied a
Thus,
failing
error
instruct
‘To sustain a
petitioners argued:
offense],
charge
included
grounds
charged in
lesser
conviction on
[of
exists,
if
one
invited
jury
had no
indeed
error
information
which the
deprives
appeal.
not be
opportunity
pass upon,
will
considered
counsel,
majority opinion
adhere to
views
and continues to
full text
following rehearing
"A
expressed
issued
is this:
reached in the
conclusion
granted
rehearing
I,
in this matter was
and the
opinion." Stuart
110Idaho at
715
earlier
reargued.
cause
has reviewed the
P.2d at 897.
arguments presented
record and considered the
Lopez,
State v.
100 Idaho
Supreme
P.2d Idaho
Court. The outrage which
(1979).
experienced
he
in Deshazer had to do with
litigation
civil
which had
protracted
been
tigation report
hearsay
and other
evi-
but
dignity
human
objection
vestige
the accused
robbed of
dence over
yet,
Worse
before she
murdered.
deprives
right
the accused
helpless
girl was made to
handcuffed
witness-
cross-examine
confront
knowledge
going
suffer the
that she was
es.
Obviously,
killed.
where there is
to be
110 Idaho at
P.2d at 847
murder, it
a crime as torture
such
concurring
(emphasis
(Huntley,
specially)
J.
appearance
than
Scroggins
more
added).
Huntley’s
The second
Justice
was here.
been
constitutional views should have
Similarly with the Windsor case.
everyone’s concern.
Scroggins
Here the distinction between
Following
rehearing
I a
in the fact that the
Windsor
issued,
second
Court was
child,
victim in the latter
not a
sen-
full text of
was these two
man
an older
who had befriended his
rehearing
tences: “A
torturers,
captors,
and killers.
granted and
rear-
matter was
the cause
legislature
Because the
has insisted on
gued.
has
the record
The Court
reviewed
proportionality, and the Court heretofore
arguments presented by
considered
proportionality analysis
made its
counsel, and continues
to adhere
having
case without
the benefit of the
expressed
views
and the conclusion reached
proportionality analysis
shortly
it would
opinion.” Stuart,
in the earlier
make in
and Scrog-
thereafter
Windsor
(on
rehearing
P.2d at 897
Feb-
and the district court at
gins,
20, 1986).
ruary
There
discussion
was no
*16
in
was
also
without the benefit of
Stuart
variance,
the
whatever of
which issue
my
opinions,
those
was tendered
vote
importance
Court had deemed
sufficient
evenhandedly
as
as
treat Stuart
being
to merit
reheard and reconsidered.
justice
Scroggins and
Court dealt
year
produced
that one
interval which
Windsor.
case,
nothing in Stuart’s
more death
two
228,
110 Idaho
715 P.2d at
Stuart
at
penalty decisions emanated from this
(Bistline,
dissenting).
J.
Court,
Windsor,
namely State v.
110 Idaho
opinion
II,
initial
in
The Court’s
Stuart
(1985);
Stuart’s sentencing hearing stipulate at the that defense counsel had initially declared preliminary hearing testimo- the use thought when that stipulated, so but have late. Stuart should ny, comes too discarded, claim became that Stuart rehear- by petitioning issue raised the rehearing for a on first should have moved the direct of our decision Stuart opinion that he had seeing May in the not err in appeal. The trial court did unfair, manifestly stipulated. This so post claim rejecting Stuart’s conviction Bakes was the first Chief Justice because preliminary use of on the issue of the ever to write Supreme Court Justice sentencing. hearing testimony at First, stipulated. had Stuart’s counsel added; (emphasis II March 1990 Stuart misstatement had been Judge Schwam’s omitted). footnote Bakes at face accepted by Chief Justice there majority longer insists that no value, showing of resort with no That is under- stipulation. was such Second, the transcript. reporter’s per- majority’s author stood. Instead convo- and somewhat record is voluminous holding that Stuart for- switches to force luted, is not all that difficult but requesting a re- that issue feited third, why it that the read- And peruse. opinion re- hearing the initial Stuart inference from the left with the er has been 3,May 1985: leased on did not majority opinion that Stuart parties holding in I that Our proper reme- rehearing, to be the for a said prelimi- ‘stipulated’ to the use so, did do is that Stuart dy? answer hearing testimony nary very issue Chief Justice he raised the finding proceeding was based should have been later asserts Bakes in the December of the trial court A.) (See Appendix raised. hearing 1982, sentencing in which March appears that the Court’s It now ‘Further, found, agreed it was trial court opinion has been withdrawn II 1989 Stuart the state and the by both and understood glaring sight the to erase from in order rely court would defendant never was. stipulation which untruth of the sentencing hearing, part of the upon, as cannot strike withdrawing opinion But testimony at the nothing apparent, indif- memory There is and the trial.’ erase from or ever that Stuart demonstrate record to with which the carelessness ferent finding, time, either before questioned the but This is not fun was written. reconsid- way motion for trial court these While to some business. serious eration, to this Court being a bit on across as thoughts may come opin- issuance of our After the I. side, help stand cannot strong one held, in which we based ion happening would be wholly aghast at what finding, that the upon the trial court’s J., too, Bistline, gone were here if the use of stipulated to parties had Shep- along with Justices appellate scene *19 in sen- testimony hearing preliminary Donaldson, Huntley. ard, defendant Stuart tencing proceeding, the has, lot, by inherited Bakes Justice Chief rehearing petition Court for did appeals. It is dishearten- all of Stuart question the trial either in order to telling an of position ing placed to be holding finding Court’s or this court’s justice capable appellate experienced stipulated of to the use that Stuart had regard for had more have that he should testimony at the hearing preliminary practicing no By comparison, record. sentencing hearing. preliminary of a to the admission Iated little. An aberra- stands for at best 10. Osborn tion, transcript. case a second such not been there has implicitly stipu- sentencing where counsel at Rehearing granted, but could attorney handling criminal defenses I. (at personal and any great done more part.] have in cost) Kinney in than did financial Robert seeing attempts
his Ill fairly. Kinney at- with Mr. least dealt get the tempted to Court concerned about JUDGE IGNORED THE SENTENCING misuse Judge Schwam’s of the IDAHO THE MANDATE OF CLEAR away hearing testimony but turned IN UTILIZING SECTION 19-2516 CODE ef- empty Continuing handed. that same FOR EVIDENCE AS A BASIS HEARSAY fort, Kinney post-conviction in relief Mr. THE DEATH PENALTY. IMPOSING proceedings presented district court to the assignment of absolutely irrefutable 19-2515(f) states: Idaho Code Section not, by person error that Stuart had in or following (f) statutory aggravat- are counsel, stipulated prelim- use of circumstances, (1) one of ing at least transcript. inary hearing Again defense beyond must be found to exist Judge Schilling away. counsel was turned sentence of reasonable doubt before a Bakes, three read that Chief Justice imposed: (emphasis can be death ... justices opinion, in joining his had ruled added) stipulated. I that Stuart had so .Because of the doctrine of the law of the provides Idaho Code 19-2516 as follows: case, powerless the district court was INQUIRY INTO CIRCUMSTANCES— otherwise,11 say though even the fact of EXAMINATION WITNESSES.— OF plain pro- the matter was as to see as the presented circumstances must be {The Dooley’s Attached verbial nose on face. testimony examined by witnesses of A Appendix as Part III of Mr. hereto Court), except when a wit- open Kinney’s supporting petition for brief ness is so sick or infirm as to be unable rehearing timely in Stuart which he did attend, deposition by may be taken Appendix copy my file. B is a true Court, Magistrate County, out opinion attempt March 1989 wherein an upon party such notice to the as adverse was made to dissuade the other members may or heaping the Court from as much or more the Court direct. No affidavit Mr. representation error on Stuart than was visited testimony, or augmen- him the district court. It is kind, written, verbal or can be offered my response today’s tation October Court, or received or a Court, opinion for the contains an thereof, aggravation mitigation or analysis equally pertinent which is to this punishment, except provided as day’s Court. Attached as section, preceding (emphasis this and the Appendix my isC dissent to this Court’s added) opinion. Appendix March 1990 Attached as clearly duty It is excerpts opinions D majority are from the capital cases to receive Court March March and October open concerning aggravating sight which have been removed from mitigating under Idaho Code circumstances with- questionable expediency Sentencing At Hear- Section 19-2515. drawing opinions, then reis- the entire December the State held suing the same modified. (1) witness, presented one who was the APPENDIX A County Jail His Clearwater Administrator. presented attempt testimony was in an [Being excerpt appellant’s brief rehearing of had not support of his demonstrate defendant Smith, remanded) *20 County Highway 113 after 11. Ada Dist. v. case which has been See 497, disregard (Ct.App.1988), liberty are not at 749 P.2d lower courts Idaho citing higher any question upon approval to Bank which the with Suitts v. First Sec. answer to N.A., 15, 21-22, Idaho, higher spoken The court court has ruled. of 1374, (1985). operation The the doc- not so constrained. A district 1380-81 of itself is (in independent thoughtful. requires proceedings in a be so trine further cannot had been
tory aggravating circumstance doubt. The proven beyond a reasonable incarcerated and shown remorse while concerning sentencing Judge’s comments striking testimony of awaiting Trial. In all hearsay at this stated of use of evidence witness, Judge sentencing deemed as follows: proceedings, are set forth improper. testimony irrelevant like to make one THE I would COURT: Sentencing Hearing, page (Transcript of recess. at this time before we comment Thereafter, 27). Appellant was called Pre Sentence report This does contain—a witness, attempt in an the defense as a hearsay report statement contains cooperated he had with illustrate that child. I am the defendant’s natural investigation police in the of ROBERT I must find that because convinced no other death. There were MILLER’S demon- aggravating circumstance Sentencing who testified at witnesses beyond a doubt it strated reasonable 1, Hearing held December re- inappropriate me to would be stricken the testimo- After the Court had unchallengeable kind sort to that of witness, presented by the State’s ny aggravated determining an hearsay in clearly its under- indicated the defense determining the When circumstance ... rely only standing that the State particular of a or nonexistence existence argument upon testimony and Trial in- mitigating circumstance that often support of presented at the in- negative the consideration of volves statutory aggravating cir- its claim that formation, negative to the defendant understanding is This cumstances existed. But I think positive information. well as transcript the December reflected in those circum- inappropriate even 2, 1982, Hearing page 28 as follows: damaging me to consider stances for that, light your MR. CALHOUN: produced in a hear- negative information Honor, has no further witness- the State purpose report for the say fashion es. question which is determining this Defense have THE Does the COURT: beyond a rea- supposed to be determined any witnesses? facts And that is the sonable doubt. Honor, light KINNEY: Your MR. imposition of support the necessary to presented no has the fact that the State (Transcript of De- Penalty. Death to, aggravation addition witnesses 1982, Pages Hearing, cember course, testimony, tend to Trial we 89). argument. the Trial and rely also negative statement Despite his clear Sentencing Judge, At the direction of and would hearsay could not comments first, in an ef- argued Appellant’s counsel Death imposition of the support be used impos- against persuade the Court fort to Judge acted exact- Sentencing Penalty, the (Transcript De- Penalty. ing Death comments. opposite to his own ly 35). 1, 1982, Hearing, pages 34 and cember change of clearly this Transcript reflects argued attorney Appellant’s after part of Schwam on the attitude Trial could introduced at taken outside that (2) cir- aggravating two he had determined at the Sentenc- aggravation used as not be applicable: to be cumstances (Transcript of December Hearing. Now, interest- has raised some defense 7, 8, 9, 10, and lines Hearing, page 46 ad- I think should ing questions which however, 11). Attorney, Prosecuting the fact that has raised dress. Defense alleged to arguing incidents insisted gives me testimony which much of the Hearing, Preliminary at the have occurred background into this defendant’s insight (Transcript of at Trial. and not admitted for a at Trial legitimately admitted 70). Hearing page December has ar- And defense purpose. limited that testimo- only use gued that I should com- were arguments of counsel After for a demon- limitation ny the same it would indicated that pleted, the Court the de- part intent on stration unfavorable hearsay evidence consider offense time of the fendant a statu- determining whether defendant *21 proportionality of the issue of the Sen- case, imposed tence in this both in re- question. disagree with the defense. sponse to Mr. contentions Stuart’s that And I my have not limited that use of imposed provi- violated the Sentence testimony____ And I don’t feel that of Eighth sions Amendment to the inappropriate that illegal it is me for Constitution, in United States accord- to use that evidence for all in purposes duty imposed by with the ance Idaho considering aggravating these circum- In doing, Code Section 19-2827. so this mitigating stances and the circum- adopted finding Court the Trial Court’s Furthermore, stances. those observed stipulation that a was entered into be- I, testify witnesses once myself, of parties concerning tween the use of the course, testimony read prelim- at the preliminary hearing testimony at sen- inary hearing, utterly and it would be (State 163, tencing Idaho justice system require cruel for this (1985)). [715 833] those return women to a third time to Following the of Decision this Court in testify. ruling And I would make 3, 1985, May issued appellant (Tran- require such a result. Rehearing. Petition filed a Subse- script 1, 1982, Hearing of December quently, July on a Memorandum 109). pages 108 and in Support Appellant’s of Petition for The Sentencing Hearing re- Transcript Rehearing was filed. That Memorandum arrogance flects cold the fact separate ap- set forth five issues which believing defendant was misled into pellant requested that the Court consider hearsay ag- evidence would not be in used rehearing. Appendix on As in A noted sentence, gravation of and that the Court Dissenting Opinion of Justice Bistline totally ignored the mandate in most recent Decision this Court Section per- Code 19-2516 which does not 12, 1990, Appellant’s March issued Mem- mit aggravating circumstances orandum in Support of Petition for Re- through shown other than testimony hearing, filed after in the decision Stuart presented Open in Court. I, directly alleged ‘stipula- addressed the Support Memorandum in Petition concerning tion’ use of hear- Rehearing, 9-12, July filed S.Ct. ing testimony sentencing. The Memo- (Stuart I) added). (emphasis No. in Support randum Petition for Re- hearing, filed appellant July on That issue was further addressed 1985, stated: support peti- Stuart’s counsel in of another After court had stricken the testi- rehearing tion for after Stuart’s mony presented by the state’s wit- post relief conviction was denied with- ness, the clearly defense indicated its evidentiary hearing. out an In this Court’s understanding that the state would opinion affirming that denial was to be said rely only on argu- properly upon stipulation, based Kin- Mr. presented sentencing ment ney, May nicely laid out how support of its claim statutory ag- stipulation that never came to be: gravating circumstances existed. This Appellant that, readily acknowledges understanding is reflected the tran- appeal, direct the finding 1,1982, script of the December that appellant stipulated Schwam page 28 as follows: hearing testimony use of preliminary that, light your MR. CALHOUN: In sentencing, the time specifi- was not honor, the state no has further wit- cally phrased ap- Although as an issue. nesses. pellant challenged hearsay the use of THE COURT: Does the defense have testimony by any witnesses? brief, opening specific question of a purported ‘stipulation’ honor, light was not therein KINNEY: MR. Your Decision, raised as an presented issue. its initial fact that the has state 3,May issued aggravation Court addressed no witnesses addition *22 888 1, 1982,
(Transcript of December Sen- 102, tencing p. 16-18). Hearing, Is. to, course, testimony, of the trial we (in)tend rely Support After the in upon the Memorandum to also filed, argument. Rehearing for Petition had been granted Rehearing this Court an under {Appellant’s Sup- in Memorandum 1985, 20, September dated con- Rehearing, Order port filed Petition for 10). only 8, cerning the issue of instruction July p. 1985— 18. The issue raised on Rehear- number 8, 1985, July Appellant’s Memoran- alleged ‘stipulation’ ing concerning the dum, support filed in of his Petition for preliminary hearing testimony the use of Rehearing, attention directed Court’s sentencing, and the Trial Court’s re- at sentencing hearing portions upon hearsay finding liance evidence transcript for Mr. wherein counsel beyond statutory taken outside reasonable doubt contended existed, aggravation aggravating trial could not be used as circumstances (Memorandum sentencing permitted argued Rehearing not to be on Rehearing, filed Support Petition I. 11). p. July This memorandum 1985— noted, appellant earlier As acknowl excerpts from sen- also referred to ‘stipulation’ edges that the nonexistent tencing hearing Judge transcript wherein precisely phrased not as an issue on he initially indicated that Schwam was, however, appeal. directly It direct hearsay consider unfavora- evidence Sup to in the Memorandum referred determining whether ble to defendant Rehearing port of Petition for filed statutory aggravating circumstance July on 1985. To maintain Mr. Stuart beyond a proven had been reasonable that this issue was not raised now excerpts Also noted were doubt. over sub is to exalt form direct hearing transcript indicat- in direct violation of well estab stance subsequently ing that the Court acted ‘qualitatively providing rules lished exactly opposite Judge Schwam’s ear- penalty review of death cases. different’ comments, prelimi- and considered lier 380, 387, v. Idaho Scroggins, State objec- nary hearing testimony over (1985); State v. Os (Appellant’s of the defense Memo-
tion
405, 410-11,
born,
631 P.2d
Re-
Support
randum
Petition for
(1981);
Sivak, 105
Idaho
11-12).
pp.
hearing,
July
filed
1985—
(1983).
must consider evidence ultimately held. liminary hearing the trial. law,
place statu- of all other common *23 tory, other remedies heretofore or II challenging validity of for the available It shall be the conviction or sentence. APPELLANT NOT PRECLUDED IS exclusively place in of them. used THE FROM ADDRESSING ISSUE OF 1986, 1, present the amend- July On IMPROPER USE OF PRELIMINARY 19-4901(b) ment of Idaho Code Section HEARING BY THE TESTIMONY written, presently As the took effect. IN SENTENCING COURT POST language: following statute contains RELIEF CONVICTION PROCEED- WHOM INGS. 19-4901. REMEDY—TO AVAILABLE—CONDITIONS. In the of this Court issued (b) remedy is not a for This substitute 10, 1989, subsequently March withdrawn any remedy nor it affect incident does replaced by Opinion and entered court, in the or proceedings to the trial 12, 1990, majority March of this or con- appeal of an from sentence allega- indicated that Mr. Stuart’s Court Any issue which could have viction. concerning improper prelimi- use of tions appeal, been raised on direct nary hearing testimony by the Sentenc- not, may not be con- is forfeited provi- forfeited under the Court were post proceed- sidered in conviction 19-4901(b) of Idaho Code Section sions court, appears ings, it to the unless 17014, State, Slip Op. No. v. No. {Stuart factual on the basis of substantial 1989, 8). 10, (Sup.Ct. p. Incor- March affidavit, showing by deposition or to be porating appears what the same otherwise, the asserted basis for reasoning, of this in majority Court about relief raises a substantial doubt most recent Decision entered March reliability finding guilt 12, 1990, indicated that ‘Stuart is fore- not, in the due exercise of could raising closed from the issue of the use diligence, presented earli- have been testimony preliminary hearing sen- in Except provided as otherwise er. tencing our decision in because of act, comprehends it and takes 17014, (Stuart State, Slip Op. I’ No. law, place statu- of all other common 12, 1990, 6). (Sup.Ct., p. No. 35 March tory, heretofore or other remedies noted, appellant in- previously As did challenging validity of available improper raise use of deed the issue or sentence. It shall be conviction preliminary hearing by the them, place exclusively used Sentencing Court, seeking rehearing added). (emphasis I. As hereafter of the Decision Stuart reflect, Mr. As Record will illustrated, however, if even the issue 19, 1981, and September on was arrested raised, had never been Mr. Stuart is not charged with crime of subsequently raising procedurally from this is- barred 1, murder on 1981. torture October post proceedings. sue conviction conviction, Mr. After his trial 19-4901 was initial- Idaho Code Section 1, to death on December was sentenced It has ly enacted in 1967. thereafter appeal was then taken 1982. His direct 1, 1975, July amended effective been 3, and, May Supreme Court July July 1986. Until sen- the conviction ultimate 19-4901(b)read as follows: Section Code appeal. tence of death were affirmed 19-4901. REMEDY—TO WHOM Relief, Post Conviction His Petition for AVAILABLE—CONDITIONS. concerning allegation which included tes- (b) remedy improper is not a substitute This use Court, remedy timony by Sentencing it incident does affect nor court, Accordingly, the filed proceedings June Mr. Stuart of convic- Record illustrates that appeal the sentence well sentenced, convicted, charged, provided Except as otherwise tion. decided, post conviction act, direct comprehends and takes Schwam, Findings of Andrew Imposing Penalty. the Death filed, prior to the time relief all written, 19-4901(b), The amended information presently I.C. allege any put Stuart was on trial did not
took effect.
part
such criminal conduct on the
Support
Pe-
Appellant’s Memorandum
charging part
defendant. The
of the infor-
Rehearing,
May
filed
tition
mation was this:
8-14.
Orofino,
That Gene Francis Stuart of
*24
APPENDIX B
Idaho,
Sep-
day
on or about the 19th
J.,
Bistline,
Opin-
dissent in the 1989
1981, Orofino,
County
tember
at
in the
28, filed March
deals with
ion No.
Clearwater,
Idaho,
State of
then and
(a)
by the district court at
the use made
being,
there
and there unlaw-
did then
of the
testi-
feloniously
being,
fully kill a human
mony
of women in
of defendant’s abuse
application of torture
with the intentional
earlier;
Washington
years
over ten
state
being,
human
to wit: that the said
to said
(b)
circumstances and events in
the actual
Francis
did strike and hit
Gene
Coutts, 101 Idaho
609 P.2d
v.
State
Miller,
being, repeated-
a human
Robert
Osborn,
(1980),
v.
and State
suffering
the intent
to cause
ly with
(1983),
P.2d 1111
did not establish
satisfy some sadistic inclination
no limits on
precedent that there were
thereby
Francis
the said Gene
could consider at sen-
what a district court
bodily injury upon
inflicting great
(c)
system-
a chronicle of the
tencing; and
wounding
mortally
Robert Miller and
district court which con-
atic efforts of the
Miller,
wounds the
Robert
which
making
conduct
ex-
inappropriate
sisted of
Miller,
boy,
year
a three
old
Robert
said
the efforts of Stuart’s
tremely difficult
County
of Clear-
sickened and died
trial, i.e.,
obtaining
fair
no
counsel
water,
Idaho,
day
State of
on the 19th
penurious mone-
investigator,
money,
no
September 1981.
reward,
grossly wrong orders and
tary
Stuart, supra,
Idaho]
[110
rulings:
added).
Judge
(emphasis
P.2d]
[715
deny-
judgment of the district court
guilt on
finding of defendant’s
Schwam’s
post
dismissing
ing and
charges
at-
totally
the two
unrelated
is affirmed.
conviction relief
woman,
drowning of one
tempted
strong
clearly
rape
another
was
J.,
HUNTLEY,
SHEPARD, C.J., and
imposition of a
supported his
factor which
concur.
clear,
Equally
the defen-
death sentence.
courtroom the
Judge
Schwam’s
dant
I,
J.,
JOHNSON,
in Part
Part
concurs
being tried on not
was
presence
11(C),
as to
11(A)
Part
and dissents
murdering the
charge of
just
the filed
11(B).
Part
charges
child,
on the non-filed
but also
J.,
concurring
BISTLINE,
specially
against the
committed
aggravated assaults
concurrence,
Part was
dissenting.
[The
his
had been
of whom
two women—one
parts of the
dissenting
with the
not for-
the defendant
Not
wife.
JOHNSON,
authored
J.]
anywhere by information
mally charged
assault, but
acts of criminal
those two
II.
PART
charged in Idaho.
have been
he could not
pur-
shows that such
evidence
The adduced
beyond
evidence demonstrates
“The
judge
acts,
by although found
ported
at-
defendant
doubt
reasonable
beyond a rea-
“proved
to have been
alone
a means of
tempted
woman as
to drown a
entirely in the
doubt,”
place
took
sonable
inflicted
this defendant
and that
torture
western
Washington, and
state of
wife and
beatings upon
second
brutal
then
thereof,
years
and over ten
part
hospital
raped
her while she
past.
distant
accident.”
recovering from an automobile
IT
AT THE SEN-
WAS STIPULATED
Judge
Findings
recited in his
HEARING THAT WHEN
Sehwam
TENCING
relied in so
THE DEFENDANT
that the evidence
which he
SENTENCING
pronouncing
guilty
defendant
of the two
THE COURT WOULD CONSIDER EV-
beyond
doubt was
PRESENTED AT THE PRE-
assaults
a reasonable
IDENCE
transcript
him in
LIMINARY
AND TRIAL
first found
HEARING
preliminary hearing,
Judge
had
THE
ALONG WITH
PRESENTENCE
prior
presiding
read
at trial.
INVESTIGATION REPORT.
Supreme
Appeal, per
on Direct
Defendant’s Petition for Post-Conviction
Bakes, J.,
Relief, D, accurately Part assesses that: time-consuming through A search Vol- findings is evident from the It Court’s appears ume 5 of the record to have testimony presented at the Prelimi- produced “stipulation” nary Hearing accepted as factual entered into. Sehwam declared been entirety, despite in its the fact that Peti- *25 appears Bakes in turn to have uti- Justice tioner had not then even commenced finding opin- Judge lized Schwam’s his discovery proceedings, nor was he later put ion.2 After the State had on one wit- able to cross examine these witnesses ness, jailer, the who testified that he had concerning allegations. these part, observed no' remorse on defendant’s Relief, p. Petition for Post Conviction 6. Judge he Sehwam ruled that would dis- D, particularly said Part the defendant striking completely count and did so all challenged Judge finding, a No. Sehwam jailer’s testimony. the The State agreed presented no more witnesses. The follow- It was and both understood ing place: the then took state and the defendant the rely upon, part Court would as THE COURT: Does the defense have sentencing hearing, testimony the any witnesses? preliminary hearing and the trial. Honor, light MR. KINNEY: Your presented the fact that State has no Following Judge Schwam’s retirement to, aggravation witnesses in in addition bench, Judge Schilling presided from the course, testimony, the trial we tend to post-conviction proceedings. In enter- rely argument. also on the trial and summary judgment denying a defen- any relief, hearing Judge dant or Okay. THE gather COURT: I it’s the Schilling in his written decision turned first right that it a STATE’S POSITION has opinion to this Court’s on defendant’s first rely upon to and intends all appeal, appeal, and stated: “On direct cross-examination illicited Supreme Court noted that USE OF Preliminary Hearing either at the trial; THIS TESTIMONY WAS STIPULATED is that correct?
TO, AND WAS PROPERLY BEFORE Yes, sir, that is cor- MR. CALHOUN: reading Judge Schilling’s THE COURT.” rect. ability making was not at fault Okay. THE COURT: Unfortunately, statement. as it is now dis- moment, MR. KINNEY: Just a covered, authoring Justice Bakes please? by Judge opinion Court’s was misled THE COURT: Yes. Sehwam, and in turn misled the other four I written MR. CALHOUN: believe I’ve so stat- of us as to the actual content of the paperwork ed in the that I filed. record.1 Justice Bakes wrote: because, rely solely By things naturally made rea- we 2. The search was the nature of correctly appearances justice case son of the three defense counsel who has drawn the Otherwise, argument portray has made at oral in this defendant’s record. all five of us sincerity beyond appeals, verity painstakingly are read all of would have question, transcripts and he has assured us that he made no exercise records —an stipulation. do not allow. such which time constraints 892 [SIC, TRANSCRIPT]
RECORD
OF
prosecutor’s
statement that the State
THE PRELIMINARY HEARING.
...3
rely upon preliminary testimony
Although
opin-
author of
the Court’s
that,
position.
just
For certain
State’s
by utilizing
ion in
honored me
Osborn
stipulation
it was
which this Court’s
goodly share
previous-
of that which had
appeal—
it to on the
elevated
direct
case, undoubtedly
ly written in the same
apparently
Judge
the sole
on
basis of
important
more
than what
was borrowed
finding
stipulation,
such
Schwam’s
was not
which had written
which
making
anyone
without
on
recycled.
myself
The Osborn author
independent examination of the record in
my
opinion,
one narrow
Osborn
the validity
order to ascertain
made
like
“We
point,
these
statements.
finding.
Schwam’s
today
hold
those cases in
Osborn,
anything in
Nor is there
imposed
repre-
penalty may
death
be
do not
(1983),
104 Idaho
hear
raises
relying upon the misstatement of the
*27
questions
magistrate
of fact. A
does not
opinion
appeal,
Court’s
on direct
pass upon guilt, and there seems to be
thereby,
was led into error
but
and
some view in the state that issues of fact
faulty
his blameless but
reliance on Stuart
ought
passed upon
not be
either.
summary
there was no sound basis for a
fact,
State,
in Freeman v.
87 Idaho
judgment
away
pen-
which turned
a death
(1964),
put
P.2d at 546 Bakes’ conclusion that de- utilized Justice stipulated fense counsel had quoted opinion Later in the the Court —which so, Judge Schilling added a bit of Supreme Minnesota for an al- Court of “However, gloss justified: that was not prelimi- to a most identical statement as trial, petitioner rely nary hearing being in no sense a is clear that did intend 894. precise question
... raised ... testimony whether the live mandate testimony argument, and was displaces I.C. 19-2516 the discretion § compliance demanding strict with the granted proceed to the state how testimony formality I.C. live hearing, i.e., whether the statute ab- phrase, emphasized final 19-2516.” § solutely open requires live above, whatever, support no and at has aggravation-mitigation court at the hear- best to no more than sheer sur- amounts ing. Yet, Judge Schilling mise. it is crucial. considerably Having plain rewritten the looking at 19-2516 when he should § liking, language of the statute to his own looking at the statute both have been same punch line: he delivered his “We decide defendant, counsel, state and for Osborn, quotations all that it does not.” at, looking 19-2515. Said stat- were I.C. § 631 P.2d at found at specifically ute states that: “EVIDENCE no statute allocates to such AT SHALL BE CON- ADMITTED TRIAL sentencing Nor to the court. discretion. AND NEED BE RE- SIDERED NOT judges feel Unfortunately, district HEAR- PEATED AT THE SENTENCING holdings no apply this Court’s bound ING.” unsubstantiated, no how and matter matter Schilling following page of Judge on the result-oriented, how and no matter whether only sentence of mentioned one rewriting indulged in this Court has 19-2515(d), incorporated which was I.C. § statutory law or the Constitution itself. addressing the into the final sentence of his What Justice McFadden wrote Osborn transcript prelimi- use issue disadvantage by was used to Stuart’s hearing testimony: important- nary “More Schilling, and unless curbed concluded that ly, Court Osborn will to be Court of its own volition continue preliminary hearing testi- use of relevant prejudicial error in the district a source mony proper and desirable sentenc- courts ing, especially where Here, preju- greatly to defendant’s evi- all relevant is mandated consider attempt gain by post- relief dice in his Osborn, 19-2515(d). under I.C. dence Judge Schilling proceedings, obe- conviction at 410-413 [631 187].” McFadden, applied tamper- J. diently case, McFadden, with J. In the Osborn im- ings statutory process: “More Donaldson, Bakes, J. concur- J. concluded portantly, the Court in Osborn wide latitude ring,5 extremely also took preliminary hear- use of relevant *28 converting sen- literary license testimony proper and desirable ing 19-2515(e): tence I.C. § sentenc- sentencing, especially where the and the defen- hearing, such the state At all is mandated consider rele- present all dant be entitled to shall I.C. 19- under section relevant evidence mitiga- aggravation vant evidence 2515(d). Osborn, Idaho at 410-413 tion, McFadden, J. extended P.2d 187].” [631 desire: of his own a transformation into with this the ultimate Osborn himself to speaks the entitlement The section statement: present whatever evidence parties to the While, admittedly, speaks of the section aggravation-mitigation they desire trial, light prior the from evidence hearing. statute, the see no we purpose the require- statute a transmuting to read into the need point, of vantage From considered, previously ment that other the into Justice’s “relevant” the statute’s prelimi- from the 19-2515(c) information as relevant "whatever,” he I.C. saw unless is to excluded hearing be nary parties" creating an “entitlement of testimony. again by live presented once stating: first after Court, unstated. for reasons opinion but dissented join for the Shepard, J. did not responsibility misguiding Judge Schill- Osborn, 187], ing. supra, at 412 The [631 considered, previously in- “other relevant thought expressed, proceed With that we preliminary hearing,”
formation from the
post-conviction proceed-
to the decision in
questions,
by
raises
“Considered
ings.
”
whom,
purpose?
what
The an-
and for
hardly
supplied.
swers should
need
’Tis
PART III.
judge
not the district
who
considers
highly important, integral
Because it is a
evidence,
preliminary
but rather
’tis the
sentencing, a
Judge
element of
Schwam’s
is,
magistrate
purpose
who does so. The
IIA
second look at Part
of the Court’s
pointed
my
as was well
out in
Osborn
opinion
mandatory-review/direct-ap-
on the
dissent, to determine whether a crime has
peal is merited. Part IIA dealt
committed,
been
and if
probable
there is
admissibility
of the two
determining
ap-
cause for
that the accused
women
who testified to
assaults suf-
pears
perpetrator.6
to have
been
charge
fered
each—but for which no
opinion gave Judge
This Court’s Osborn
delving
was ever made. Before
into the
Schilling precious
opportunity
little
to hold
issue,
admissibility
author of
did,
though obviously
other than he
even
stage by
Court’s
first set the
ex-
clearly
violation of a
written statute.
plaining
prosecution’s problem:
“To ob-
any justification
There was not
degree
tain a first
murder
con-
torture
source for
Schwam to have con- viction,
required
prove
the state is
preliminary
sidered the
hearing transcript
pain
defendant had an intent to cause
sentencing
as admissible evidence at the
suffering.”
prosecution’s
so-
hearing in
quota-
this case. Add to the last
however,
was,
problem
prose-
called
McFadden,
tion above set forth that which
making.
previous
cution’s
In the
own
last
say
very point:
J. went on to
on the
child-abuse death case which came before
certainly
appel-
This is
true where the
us,
prosecution experienced
no trouble
(defendant)
lant
relied
the infor-
satisfying
that the 8-month old
mation contained in the record of the
head,
child “died from blows to the
a mini-
blows____
preliminary hearing, as occurred here.
probably
mum of two and
three
Testimony
injuries
indicated
could
Bakes,
These cases
here,
they all dealt with
issue
as
precedential case in the Court’s
The third
by
the commission
facts that reflected
upholding
relied
In
crimes.
this
defendant of other
extraneous,
wholly
the admission
eighteen
death of an
involving the
case
unrelated,
testimony of
history
ancient
boy, there was evidence
old
month
purportedly
women from
the two
assaulted
disci-
times had
the defendant at various
Sanchez,
Washington was
western
as well as the other
plined the decedent
(1971). It
attle directories. The sheriff's department gave me a set of Seattle di- (JUSTICE JOHNSON): THE COURT rectories. The trial court then instructed me, you your tell Can I’ve reviewed up night, in me to come district court affidavits, matter, in this what other evi- chambers, County in Clearwater Court- you seeking dence were that time house, telephone many people, as through investigative assistant. by telephone, reach if I could. them MR. KINNEY: I’d like to address following, Then at our law and mo- that, if I I could. And think that a day County every tion Clearwater investigative motion for assistance is es- Thursday, following other law pecially relevant here. Mr. Stuart had day reported I him motion to special relationship informed me of a he by telephone. I had made He contacts had with an individual the name of it, then authorized and that was $300 Lynn during preparation. Matieoni investigative expenses. That was $300 At all times I of her name. was aware compensate intended to me for air- my At the time I filed motion for inves- plane ticket to and motel and Seattle assistance, tigative seeking we were not car— rental Matieoni, only to find Ms. if she were to JOHNSON): (JUSTICE exist, THE seeking COURT we to find were also your specific purpose going That who in the was witnesses resided Wooden- ville area who could contradict the tes- Lynn to to seek Matieoni? Seattle Jacobsen, timony-of Nel- Theresa Vicki things, among MR. other KINNEY:— son, Dally concerning and Sharie Your Honor. events which occurred Seattle. JOHNSON): (JUSTICE THE COURT Please, and I ask the Court to remember things? What other filed, in limine we was that the motion things The were MR. KINNEY: other requested filed because the trial investigate witnesses in the Wooden- to in limine so that he that we file a motion area, ville where Mr. Stuart had resided. prelim- portions us what would tell testify could to events Witnesses who ah, testimony, hearing transcript, inary alleged to have occurred which had been he at trial. He denied would allow allegations by Theresa Jacobsen. motion, prior to. as I recall ten weeks allegations beating drowning, the Immediately after his denial of our trial. right when she left of Theresa Jacobsen segre- him to asking in limine in motion neighbors, Mr. I interviewed Stuart. hear, I gate portions he would friends, Mr. Stuart and ex-roommates of assist- investigative filed the motion allegations. Some of contradict those to then faced ance because we were We were my efforts were successful. addressing each and ev- prospect at trial consist- get four witnesses able presented at the ery issue which believe, roommates, I ex-room- ing of hearing. were there mates of Mr. who JOHNSON): (JUSTICE THE COURT Lynn during day prior to and you specify to At that time did Matieoni, Matieoni, ah, Theresa Lynn investigative ef- exactly what Schwam Jacobsen left. you pursue. forts wanted JOHNSON): (JUSTICE THE COURT Honor, I’m Your KINNEY: MR. you intended any leads that Were there recollection. my trust going afraid I’m investigative assist- pursue through its, response to me in The court directed ance, originally requested, you had investigative my I motion when filed Lynn Matieoni location of other than the to file assistance, me the court directed you unable daughters, that were and her I setting what wanted forth an affidavit grant complete through $300 that affi- not recall whether to do. do provide court did assistance the the other Lynn Matieo- mentioned specifically davit you? mentioned name, specifically ni Oh, Your Honor. yes, MR. KINNEY: court, trial to contact. who I wished multitude there were a I feel that to Se- court, I have access directed apprised, I was
tion became trial, when, until apprised, never I feel I unable to matters which what witnesses he would allow ah, complete, being I couldn’t track prelimi- taken at the what relatives down several Mr. Stuart’s permit. he nary area. had lived Woodenville who (JUSTICE JOHNSON): I THE COURT period using days, for a of five was there *34 being you assumed he assume cautious personally a look my vacation as time to permit all of would it. people, try these or to find them. after Yes, And because MR. KINNEY: sir. People who had moved out of the Wood- effort, very we made a strenuous of that living and were south of enville area could, as I uncover the wit- as much Tacoma, I couldn’t I feel that an find. everything that would nesses contradict investigator could have uncovered evi- hearing. that was said of, Mr. relatives dence that Stuart knew JOHNSON): (JUSTICE THE COURT him had seen with Theresa Jacob- who any investigative ef- Were there other Nelson, sen, had seen him who with Vicki anyone any by you or to locate forts else Sherry had seen him Lee and who with during that or other witnesses evidence specifically But Nelson and Dallie. Vicki period of time? Theresa Jacobsen. Only my telephone KINNEY: MR. (JUSTICE JOHNSON): THE COURT Honor, calls, nightly Your made almost you trip, returned When from that did from the courthouse to the Seattle vicini- you report your any form to efforts me, if ty, helping and I had no one else Judge Schwam? your question. that's certainly MR. KINNEY: did not We (JUSTICE JOHNSON): THE COURT report we found. file written of who you. Thank that we What we advised the court was (JUSTICE BISTLINE): I THE COURT ulti- found some witnesses that we would two, Kinney. or question have a Mr. any mately call at trial. I have don’t Yes, MR. KINNEY: sir. my specific report recollection of a (JUSTICE BISTLINE): THE COURT efforts. practitioner? You’re a sole (JUSTICE JOHNSON): THE COURT time, KINNEY: but at MR. Not at this your investiga- you Did renew motion for was, I Honor. certainly time Your tive assistance at that time? (JUSTICE BISTLINE): THE COURT KINNEY: I I MR. don’t recall And where? did, no. I don’t I did. recall that KINNEY: In MR. Orofino. (JUSTICE JOHNSON): THE COURT (JUSTICE BISTLINE): THE COURT you Did feel satisfied the results in this And where was the trial held investigation? your case? KINNEY: time did I. MR. No. At no MR. KINNEY: Moscow. (JUSTICE JOHNSON): THE COURT BISTLINE): (JUSTICE THE COURT you anything put do the court
Did else to you long practiced? have How had been on notice assistance practiced MR. KINNEY: I’ve you was now granted to not sufficient? years. Honor, KINNEY: we did MR. Your (JUSTICE BISTLINE): THE court, COURT effort “we not take the to tell investiga- you private were Before that enough witness- don’t think that we have tor? because testimony,” counteract es to sir, No, I KINNEY: never MR. I didn’t know what area. any experience trial. would allow until Schwam BISTLINE): (JUSTICE us he not rule fact, he told’ THE COURT business, which, he you appointed to any past the time were And at if defense, suppose, I trial. you, And would allow trial until handle this were keep up your ques- obliged, you trying to for me were it’s hard to answer so county provide does not secretarial assistance, any up other it is to the indi- private practice stay afloat budget vidual who contracts the office to might put? all that himself. very apt MR. KINNEY: That’s a char- public acterization. The office (JUSTICE BISTLINE): defend- THE COURT County, presently er inis Clearwater you any thoughts you’ll Do have on what part-time position. is a What remnants judge you do next time some asks my private practice were left —after capital undertake case? trying keep Mr. Stuart’s case —I was Honor, MR. KINNEY: Your I have no with, up guess way is the best to char- do, doubt what would would assure working acterize it. I was Mr. Stuart’s past, this Court as I have in the that I do time, average case on an of half half a person not think that should under- every day, evening day hours *35 capital single handedly. take case I every and weekend. The rest of the time tough undertaking any think its a for keeping my practice I tried to dedicate to people, my it was rendered in two but alive. opinion, my opinion, in strenuous almost (JUSTICE BISTLINE): I THE COURT I impossible in these circumstances. rec- think, County, you Ada have no- unlike ognize budget- that small counties have assistance, legal body, no no assistance constraints, ary recognize I that and on this case? person any type when a bids of contrac- all, MR. KINNEY: None at Your Hon- comes, employment you tual take what further, might I or. And add that that, willing accept ready and I’m to Orofino, public defender7 in contract and I’m not here to whine about the fact today, longer I’m no as far as I know representing in Mr. that I was alone defender, public quit I after the Stuart respectfully I but submit case, contract still is such that complied here. matter. The 19-8528 was not with privately it’s a contracted (a) proceedings Payment.— A provides commitment Idaho Code 19-861 as follows: § 7. — needy being by person detained a law who is Employ- 19-861. Public defender’s office— officer, (a) who is confined or is enforcement Compensation—Facilities.— If an of- ees— established, proceedings pursuant subject hospitalization public of been fice of public defender has 66-322, 66-326, 18-212, 18-214, may employ, the manner and by 66- defender in to sections 66-409, Code, compensation prescribed of the board or who is under at the county or commissioners, committed, public many being charge having assistant as or is formal defenders, clerks, stenographers, of, crime, investigators, a serious detained under a conviction persons considers neces- and other as the board is entitled: carrying responsibilities sary under out his (1) represented by attorney an to be person employed this section this act. A under having person his own extent as a same public pleasure defender. entitled; serves is so counsel (b) public has been defender If an officer (2) necessary provided servic- be with the established, county commissioners the board of (including representation es and facilities of shall: preparation). investigation and other (1) (including appropriate facilities Provide services, attorney, facilities and the books, furniture, post- space, equipment, office age, supplies, provided public ex- shall be at court costs interviewing facilities in is, person pense that the at to the extent public jail) necessary carrying de- out the need, unable to time the court determines act; responsibilities fender’s under provide payment. for their (2) grant public an allowance defender (b) rep- needy person to be A who is entitled place of those facilities. (a) attorney under subsection resented an (c) defending attorney to use the is entitled A entitled: evi- evaluation of state facilities for the same stages (1) at all counseled and defended to be county prosecutor. available to the dence as are beginning time with the earliest the matter impractical, the court If he considers their use person providing own counsel when a private may fa- the use of concerned authorize represented be be entitled to would attorney tion; by the paid order be for on court cilities to proba- including revocation county board of commissioners. any appeal; provides (2) represented follows: Idaho Code 19-852 to be (3) post-convic- represented in other needy person— Right to counsel 19-852. proceeding post-commitment tion or stages criminal and Representation all court, court, open then file a motion that we Schwam directed meaningful as- given any We were not instruct, limit. asking him to limine sistance, or otherwise. We financial read the He then for, it; every step we asked asked for conjunction transcript, apparently, only time we had denied. The we were had, and after motion we with another expertise psychi- any professional believe, 29th, I ten July reading that on tes- psychiatric and ultimate atric trial, the motion denied prior to weeks trial, then the bill timony at and even point at this he couldn’t limine and said ques- psychiatrist submitted testimony he would which of decide severely. tioned allow. green light’s going on. my I see case, and I entire just, There is BISTLINE): (JUSTICE THE COURT this, this entire case can’t over-stress taken question. more I’ve have one hostility and an at- permeated your time. some Mr. hatred to mosphere of intense right. quite KINNEY: That’s all MR. years in 12 I have never Stuart. BISTLINE): (JUSTICE THE COURT that was conducted practice had a trial things I’d like to know. are These environment, and we an emotional such you say that the thought I understood people who can contradict now have in li- a motion judge you asked to file produced the state’s witnesses *36 mine. The, and convict Mr. Stuart. evidence to Yes, did. MR. KINNEY: he important especially because I feel its BISTLINE): (JUSTICE THE COURT Schwam, opinion,in his find- in his Judge he denied it? And then under aggravating circumstances ing of Yes, he did. MR. KINNEY: 19-2515, he said that defen- found BISTLINE): (JUSTICE THE COURT doubt had a reasonable beyond dant why, something in say he was there girl by Did attempted to kill his friend reasoning explains his the record that beyond a rea- drowning, he that found something, you to do compelling raped doubt the sonable defendant denying it? then were hospital. Those in a his ex-wife pre- at a were discussed minutes re- matters which MR. KINNEY: The court defendant had court, ah, liminary hearing when the I’m sure flect that the line apprised of what this, never even been the trial court asked record reflects take, ah, because, going to testimony was in limine at us to file the motion preliminary given at the the, appellant’s going to be hearing after the a at then, And what, given. it was hearing, if until questioned arraignment, initial Judge does is take Schwam and what any, preliminary evidence again discusses quantum leap and never in mind allowed. Please bear would be trial, sen- at the time of during hearing evidence that that the defen- says, “I find that tencing he rape a allegation an consisted doubt, tried to dant, reasonable beyond a allegation hospital, it consisted an a friend, raped girl kill ex-wife—his he at- his girl his said that one of friends hospital. is sheer in a Which his ex-wife in a lake in tempted to drown her And it was stuff psy- and utter nonsense. area, also a and there was Seattle prelim- even rebut that we couldn’t who opinion by an individual chiatric at not allowed inary hearing and was those And Mr. Stuart. had never seen recognize We position. That’s our me, trial. so asked very troublesome were (c) right under needy person's to a benefit appro- needy A attorney person considers or having (a) (b) proceed- his is unaffected in which the or priate, unless the court subsection expense, is not a brought provided determines benefit at his own a similar person it, with ade- stage. proceeding that a reasonable having earlier at an his waived bring willing his at quate would be means pro- expense is therefore frivolous own ceeding.
attempted to drown a woman as a means of torture that this defen- Osborn, sentencing State v. beatings upon dant inflicted brutal his court can preliminary hearing hear testi- raped second wife and her while she mony. This case deviates from that hospital recovering an degree substantial in the sense that the accident. automobile beyond court found a reason- able Mr. doubt that Stuart had commit- Judge referring Schwam was to the testi- alleged ted these acts. Jacobsen, mony girl- of Theresa a former Nelson, of Mr. friend and Vicki Moscow, argument Idaho, Oral at April his wife. The Ms. former concerning the alleged Jacobsen drown- Thereafter the Court was furnished with ing attempt Preliminary was taken at the supplemental briefing defense counsel’s Hearing, pages and contained on 151-154 responses which both Bench clarified Preliminary Hearing Transcript. questions argument provided at oral us thorough After Trial review of the with citations to the records: Transcript I find Ms. Jacobsen testi- Argument At the Oral held this cause concerning briefly fied incident at 7, 1988, Moscow, April several of Trial, however did not offer the expressed concern Justices over trying Mr. Stuart to drown findings considering Schwam testimony relating her. Trial to this Her penalty the death under Idaho Sec- Code pages incident is contained on 616-617 of Specifically, tion 19-2515. Court con- Transcript. the Trial findings of sidered certain the Trial involving respect With to the incident testimony presented Court based alleged rape of defendant’s former Preliminary Hearing Trial. not at *37 spouse hospital while she was the re- purpose correspondence this is to of accident, covering automobile specific portions set forth the Judge referring the testi- Schwam is to findings the record which illustrate en- Nelson, only mony at of Vicki taken Schwam, by Judge tered and the location Preliminary Hearing. the Her testimo- Preliminary in the any data relevant ny concerning appears matter in the Hearing Transcript. This let- and Trial Transcript Hearing Preliminary on only you, ter is mailed to intended Trial, pages At Nelson tes- 222-224. Ms. provide who to assistance Clerks the commencing page at 636 of tified reviewing the as a are no doubt record testimony on Transcript, Trial with her Argument. result of Oral our concluding page at direct examination finding Judge specific Schwam permitted to 651. was not at Trial She the Oral which raised at time of was concerning hospital testify alleged Argument page at is located rape to at which was earlier testified Transcript Appeal. on original Clerk’s Preliminary Hearing. No reference record, Trial point that in the At anywhere to is contained that incident finding pursuant Ida- a Court entered Transcript. Trial 19-2515(f)(8) de- that the ho code Section fendant, in the commis- by prior held, conduct Argument At was the time our Oral at hand had exhibited sion of the murder me I did before the first Clerk’s not have which propensity commit murder a Appeal Transcript on which contained continuing a probably will constitute Also, Preliminary findings. Court’s Judge com- society. Schwam’s threat Tran- Transcript and the Trial Hearing ments, part, are forth as pertinent set script not before us for reference. were follows: transcripts, and the Upon of both review specific language Judge Schwam beyond a demonstrates The evidence finding pursuant to Idaho entering the defendant reasonable doubt attempted to drown her—found fact doubt, and proven beyond a reasonable 19-2515(f)(8), appears Code Section on also relied the Nelson involving that the incident Ms. Jacobsen be raped hospital she was —found Trial, testified to at was indeed however doubt. proven beyond been reasonable detail without the or conclusions drawn Preliminary Hearing. actually has estab- at The incident What been now involving beyond dispute cavil alleged Ms. Nelson and her lished— —is findings sole- judge-made such were based rape hospital clearly at the hearing preliminary ly on a cold written part Testimony, having Trial her admittedly long Judge read Schwam presented Preliminary been Hear- Moreover, prior that trial com- to trial. ing. Preliminary Hearing Since the Judge proceeded menced and without Magistrate, taken before any ruling on making Schwam whatever any Schwam did not at time hear live coun- the in motion filed defense limine testimony concerning this incident. judge’s sel at the direction. Kinney’s fully Mr. assertions are sub- One of the main thrusts of defendant’s stantiated record. At the post-conviction proceeding, as also well the witness Theresa argument, stated in his narration at oral testify Jacobsen did not that the defendant frustrating impossibility of ade- lake, had tried to drown her mur- quately preparing capital for trial of a rather that at a she time thereafter charge knowing der without whether the making considered a statement to such judge keep out or in all of allow person adjoining in a she car car preliminary hearing testimony parked defendant were while at a 7-11 charge properly was extrinsic to the filed Preliminary Hearing Tr., p. store. i.e., Idaho, Bobby life taking that of County Miller in 19th Clearwater give any testimony did She day September, 1981. To which must pre- related way trial which handicap inadequate added the assist- liminary testimony concerning any “at- funding ance which to combat tempted drownings,” other than charges took unlaid of incidents which some unidentified trial there had testi- been place away in western five hundred miles mony sobriety as to her state of *38 Washington years prior charged ten the to incident, evening of lake the “... Gene homicide. he me the lake said threw to [defendant] up me sober ... was not drunk.” Trial the in which Unfortunately, manner Tr., Judge the has p. 634. On direct examination she had Schwam conducted trial troublesome, made if not appellate review prosecutor purchased told the that she had brief, supplemental short difficult. consump- Lancer’s wine for two bottles of instance, supra, set out defense counsel by tion her the Vicki Nel- defendant. testimony, to Nelson “She states as the testify son did at permitted testify to con- was not Trial raping she him me to what would “consider cerning alleged hospital rape ...” hospital in the bathroom room.” Why permitted do she was not so is Tr., Preliminary Hearing p. At in the record. The reason reflected jury no such was trial before this, inexplicable happen- trial other given. ings Judge sponte Schwam’s sua point foregoing out the serves ruling proce- that on all matters of limine briefing. accuracy of counsel’s It defense approach dure the bench counsel would that, extremely important is as has been put jury rather to the exercise than seen, utilized Schwam being returned to the room. While gospel being ingratiating courtesy as he remembered as ex- what indeed an i.e., jurors, it left court testimony, that defendant tended to local the Jacobsen
ty. Rather that defendant was tried and
charge
very
convicted on a
of robbery.
reporter out
in the cold as well. The
that,
much believe
had the
defendant
record
replete
is
bench-attorneys
with
dis-
Wright be
convicted murder and sen-
cussions held “off the record.” Nowhere
death,
tenced to
at least one and more
in the record
any suggestion
is there found
three,
likely
justices
two or
who
prosecutor
and defense counsel
comprised
majority
swung
would have
both
statutory
waived
requirement,
I.C.
Bakes,
to the views of Justice
and there
1-1103,
reporter
that the
is required
§
would have been a retrial.
take
proceedings
down all
in a criminal
brings
point
Which
to the
making
me
case.
Wright,
See State v.
regarding
two observations
the trial court’s
(1975),
(“appellant
P.2d 63
contends
conducting
manner, i.e.,
such a
the failure of the district court
unrecorded bench discussions as
as
well
require the
reporter
closing
record
unrecorded
made
decisions
with counsel
arguments of counsel was error and con-
deprived
chambers has
the members of this
trary to the requirements of I.C. 1-1103.
§
Court
performing
statutory
our
obli-
agree.”)
We
See also
same case the
gation independent of whether the defen-
—
dissenting opinion
Bakes,
of Justice
con-
dant
appeal,
chooses or declines to
of mak-
by
McQuade.
curred in
then Chief Justice
mandatory
required
review
by I.C.
Justice
McQuade
Bakes and Chief Justice
19-2827:
strongly disagreed
the majority’s
with
con-
Review of death sentences —Preserva-
clusion that
the failure
the trial court to
(a)
tion of records.—
Whenever the
comply
statutory requirement
with the
penalty
imposed,
death
error,
harmless
and that it was not funda-
judgment becoming
final
the trial
mental or constitutional error which en-
court, the sentence shall be
reviewed
titles the defendant to a new trial:
Supreme
record
Court of Ida-
When
this Court
unable to review
court,
ho. The clerk
the trial
within
the proceedings of the lower court be-
(10) days
receiving
ten
after
the tran-
cause, in violation of the statues of this
script, shall transmit
the entire record
state,
those proceedings
record of
and transcript
Supreme
preserved,
was not properly taken and
attorney general togeth-
Idaho and to the
and due to the record’s deficiencies we
prepared
er
with a notice
the clerk
are unable to
whether
determine
a defen-
report
prepared
judge
and a
the trial
judgment
dant’s
of conviction has been
setting
findings required by
forth the
proceeding
obtained in a
tainted 19-2515(d),
Code,
section
Idaho
and such
error, then
apply
fundamental
we must
concerning
other matters
the sentence
State,
the rule of
Ebersole
imposed may
required
by the Su-
(1967),
fore this Court. transcript. Up tire record and until this time penalty all death sentences have been Wright, 97 542 P.2d Idaho at appealed by representing the counsel de- Ebersole, quoting supra with to approval fendants. (Bakes, dissenting). Wright J. was not a however, where was at risk a day, case the defendant One there will be the de- appeal, to prosecutor’s penal- for the death fendant who elects not as has candidate
907 judge trial where counsel was hands of the midway through any deprived until happened that chances elsewhere. When ruling prosecution to to allow whether itself happen Court will find inde- to this by testimony of ease altercations bolster its reviewing the record and tran- pendently of two women which alleged abuse guidance briefing script without the past. On Thurs- place years ten took counsel, naturally has been of 7, 1982, shortly before ad- day, October great value. recess, noon the fourth journing for the past have had the aid Because in the we trial, a day pressing for under continued counsel, representing the State ruling, finally the court verbalized one: prac- defendants, safely it can be said all, all, aware State tically of our focus THE COURT: am absolutely if not appeal procedure and none trying has been on the in to bears an enormous burden mandated the statute. review anyone any crime because it convict belief, My own has been mentioned must the trier of the fact that convince walls, heretofore within these marble every beyond true a material element is obligation have an in is we death particular doubt. In this reasonable delve to penalty into the record cases case, the Prosecutor must convince satisfy ourselves that it is free error your trier of the fact that client was regardless briefing in of and addition torture. And engaged a course of of counsel. death, produced not necessar- this child’s majority, If I command a rul- were to only intending ily intending death but ing day made that in would be And in alone I’ve torture. that sentence case, not penalty death where we do have ‘intending’a use the word number record, i.e., complete report- clerk’s ease, great And so of times. proceedings, transcripts er’s of all as re- extent, going to turn what the 19-2827, quired I.C. 1-1103 and both §§ jury going your client’s thinks was new trial result in reversal for a will ac- during mind that interval when he dealt espoused cordance with the views Jus- yourself you with And as this child. Wright “The tice Bakes case. stat- said, have the surface evidence indicates followed,” per utes are there to be Justice However, discipline. an the evi- effort to Goldman, Donald Burnett State v. allega- isme that that dence before such (Ct.App.1984) Idaho P.2d 599 say, of implication, tion or I should disci- Toohill, pline very questionable. point At this (Ct.App.1982). The are far too stakes if suspect jury I would time look high penalty death cases to deliberate, determining had to whether noncompliance we way other where see engaged your client in disci- not statutory requirements. ordering pline by and a half to a two eating year three old conduct CONCLUSION precise punish- such and then manner comply, him time not each he could thorough A review the record think for me to complete very it would be difficult my satisfaction that establishes extremely diligent de- responsi- and conscientious that the assume could power, attorney fense did all in his bly discipline. decide that that was *40 devastatingly within insufficient finan- That of more serious that was form means, trying obtain fair cial toward to words, teasing or in other torture. That deserve, trial which all defendants but es- process by to that was a emotion- penal- face extreme pecially those who boy. process. ally punish that The whole ty of death. jury I could that with think the conclude they But I think this evidence alone. particular my In were with the concerns it was an could also conclude that effort treatment defense counsel received at may he prove fact be able to beyond a reasonable And I am doubt. aware from to train him to in a way. eat certain reading preliminary hearing tran- words, other I think that the intent is not script present that the witness suffered clear at this time. If I felt the intent noticeably those less than other women overwhelmingly clear in either di- life, in his especially the more recent words, rection—in other that either the ones, although go it did back as much as totally Prosecutor had failed or had suc- years. ten think And I the Prosecutor ceeded to demonstrate his case at this has the opportunity prove to or should point probably I very would be hesitant opportunity prove have the to the state to past allow evidence behavior which your alleges mind he client to have will in prejudicial fact be to this case. and that in fact it this became child’s role IBut feel in what we fact have in is an suffering to do for the benefit of unclear and I think situation that your client. And I think that’s his basic your evidence of these other women in intention. He’s in effect said it and I directly client’s life does bear on the un- think might he has the evidence that derlying state of mind he has while he’s allow the the fact trier of to conclude acting respect boy. with to this beyond that doubt reasonable that that going your what’s client. Now, I’m not convinced that all I read preliminary hearing from each of If I exclude all of this evidence from those witnesses bears on that. And that then, proceeding, this I leave this difficulty creates for me I some as real- trying your to determine the status of ize the position uncomfortable for your if virtually client’s mind with no evidence you object every single have to ques- subject. available on the When in fact tion attempts the Prosecutor that’s the this great ask the heart of case to a present extent. impose others And I don’t think I can witness or he will call. I that situation on Prosecutor simply have already cautioned the Prosecutor your because so much what client did that I’m troubled this situation. And of. past in his which indicates status of his your presence indicated that at no time mind in dealing rep- with this child were prepared did I think I was to admit rehensible acts. It is unfortunate for everything out in prelimi- that came your reprehensible client that his acts that, nary therefore, hearing. And there dealing show the status of the mind in adopted have to be some means prejudicial with this child.9 And as as past to—if I let behavior in to be, they giving will I think the status of way structure the in which it comes in so the law proving on Prosecutor’s death that we can control incidences that torture that the does Prosecutor have to you we deal with having ap- without very clearly show was not a disci- pear engaged process in a trying pline situation. the intent That was in prevent everything reaching jury. fact to I think torture. And I put you don’t think I want to in that through preliminary Prosecutor has position. demonstrated substantial I reading pre- am convinced from highly amount of evidence which is rele- liminary hearing transcript that the Pros- your vant to state of mind. client’s So as ecutor’s that he feels he can assertion go I reluctant as am to into these mat- prove your to a trier of the fact that they ters and as much understand as torture, client simply needs someone to lengthen proceedings will these as well something whipping boy, like a for his possibly prejudice jury against client, pleasure actually something your own I would in think effect be not, hearing. judge already 9. Whether he it or He had understood here his mind demonstrated that was closed on decided the fact. *41 question reading transcript the from his of the allegations are not involv- these
because
highly laden with
deceased are
the
depriving
highly
the
of
relevant
State
you must
accused
against
the
emotion
it
so
that
over-
evidence which is
relevant
credibility
carefully
each
weigh
the
of
might
it
any prejudicial
comes
effect
every
giving the benefit of
such witness
being
of its
admissible.
have
terms
viewing
critical-
doubt to the accused
Although
great
a
deal
the trial court said
his
possible prejudice of
ly motive or
the
motion,
readily
not
ruling
there is
the
accuser.
advanced
seen therein that
Schwam
hamstrung
defense counsel
only
Not
any
having
reason for not
arrived
by the court’s
preparation
in his
efforts
midway
earlier than
conclusion much
unacceptable de-
totally
unreasonable and
Yet,
inescapable
is
the
trial.
mid-trial,
making
ruling until
lay in
the
not
read the
Judge’s own mouth that he had
monstrosity
proposition but the
of
hearing transcript and knew
preliminary
any meaning-
offer
found in the failure to
testimony of the
women would
that the
two
judicial display
a
explanation
ful
for such
in a
prejudicial to the defendant
trial on
be
obduracy.
killing
a
charge
a
small child
did, however,
attempt
make an
judge
torture, wholly
unrelated to the
infliction
hypothesis upon
he
explaining
true, as to
two women.
incidents if
wholly
he
rule in
could
rationalized
exception-
acknowledged the
The trial court
alleged mistreatment
evidence of
unrelated
high
prejudice
ally
potential
extreme
witnesses,
female
of the two
when he instructed
mid-trial—
—in
judge
Nelson. The
found a
Jacobsen and
special instruction:10
single
with a
isolated
“continuum,”
fine-sounding
word which
testimony
will
hereaf-
Some
recently
have
practitioners
we older
presented by
ter be
the State concerns
clerks, although it has
learned from law
allegations
by the De-
of acts committed
yet
way
its
into Black’s Law
not
made
people
than
against
fendant
other
Robert
ed.,
defense counsel’s
Dictionary, 5th
To
in no way
Miller. And are
the basis of
key preliminary
that that
assertion
against
any charge
the Defendant. Not-
“comes
testimony of those two witnesses
withstanding
the fact
prior
years
as far
as ten
back
directly
any way
does
relate
death,”
responded
the judge
child’s
with
Miller,
permit
death of Robert
I will
II.,
hypothesis.
p.
Tr.
Vol
continuum
single
it for
present
purpose
1. 21:
or intent
attempting
show motive
course,
Of
I
famil-
THE COURT:
have
part
on the
Defendant
torture
I
iarity
evidence
State’s
because
the deceased. It
not to be considered
preliminary hearing tran-
reviewed the
by you
proof
as evidence or
on whether
script.
position
he
is in a
feel
or not the Defendant committed
oth-
such that
demonstrate
continuum
af-
aspect
element
er material
pos-
he has the
ter that demonstration
may only
It
be con-
charged.
crime
jury beyond
sibility
convincing
bearing on
by you
sidered
as evidence
simply
your
doubt
client
reasonable
motive of the Defendant on
the intent or
way
in a
and that that
behaves
certain
nineteenth,
You are
September
explains his
towards this child.
behavior
allegations
these
instructed that
con-
he
this in a contin-
Since I
can do
feel
involving
the deceased
present
cern acts
he is entitled to
uum feel
they
occurred
which if
occurred at all
totality
that continuum because
presence
of the Defendant
that continuum would
end
final
That
the State’s case
is what
For this reason and
child.
and his accuser.
anywhere
are not found
the court and
10. As with the conferences of
chambers, and
bench
counsel in
discussions,
off-the-record
record.
given at the end of
the instructions
*42
earlier,
As noted
judge
the district
con-
familiarity
ceded his
with the contents of
is and think his evidence works in that
transcript.
So,
fashion.
yes,
prepared
I am
to let
go
him well back because I feel it’s all a
Being entirely satisfied with the accura-
continuum of behavior which culmi- cy of defense counsel’s assertions made in
explains
nates
this
your
child and
the colloquy between the court and counsel
argument,
client’s
expla-
point,
intent. At least
an
oral
offers
at this
for the
benefit
Court,
of
other
nation which
members of the
would allow
and because on the
direct
none of
conclude beyond a reasonable doubt
this was
opinions,
discussed in the
it is
what was
motivating
your
intent of
reproduce
believed
pertinent
order to
client at the
acting
time he was
towards
supporting portions
from clerk’s
this child.
ISo
realize some
of
record:
evidence is very remote in time from
part
this incident
is
but because it
a
hearing
This
held
hear
defense
of
continuum I don’t think —that there’s a Motion to Dismiss Information. Court
give
reason
me to
a
rendered it’s
on
preliminary
cutoff date
decision
transcript and found the
say
years
five
evidence sub-
is reasonable or—and sev-
stantially supports
allegations
not,
years
en
is
years
or seven
is reason-
by
the death was
torture and that the
years
not,
able and nine
is
it's all a
person responsible for the
is
death
continuum,
it’s either all reasonable or
defendant. Court denied the Motion to
all
I’m
unreasonable.
not convinced that
Dismiss
Information.
point
appro-
we’vereached a
that it is all
priately
on
admitted
of
issue
in-
Information,
Motion to Dismiss
Min-
tent11
25, 1982,
Record,
utes March
p.
Clerk's
20.
In some minds a continuum
jumps
which
NOW,
COMES
the above named defen-
gap
years may
ten
acceptable.
Not
dant, by
through
attorney
his
mine,
Collegi-
however. Webster’s New
record,
KINNEY,
ROBERT E.
and re-
Dictionary,
Merriam,
ate
published by
sug-
spectfully moves this Court for an Order
gests that a continuum is akin to continui-
setting
scope
forth the
and extent of
ty,
“something absolutely
and is
continu-
testimony and
presented
evidence to be
homogeneous,
ous and
...
unintentional
by
DALLY,
SHARIE LEE
THERESA
But,
sequence.”
ordered
if reasonable and
NELSON,
JACOBSEN and
wit-
VICKI
legally trained minds can differ on the
prosecu-
nesses called on
behalf
continuum,
judge’s
observation
it sim-
preliminary
tion
hearing
held in
ply
judge
justified
cannot be
4, 6,
this matter
November
requiring
year
a half
almost
10, 1981.
would,
he
fashion
rationale
brought
Motion
This
in accordance
mid-trial,
declare that
Court,
with the
directive of
follow-
hearing testimony
Jacobsen and Nelson
held on
Mo-
defendant’s
repeated
jury.
could be
to the “live”
tion
filed, argued
to Dismiss heretofore
preliminary hearing transcript was com-
presented.
pleted
reporter
certified
Limine,
May
Motion in
dated
December, 1981,
pages
10th
all
Record,
added).
(emphasis
p.
Clerk’s
spanning
days
testimony.
five
At that
longer
time the case
no
before the
NOW,
COMES
GENE FRANCIS
preliminary hearing magistrate,
STUART,
but in dis-
through
attorney
record,
KINNEY,
transcript
trict court
was filed.
ROBERT E.
and re-
where the
Sanchez,
(1979),
interrupted
year
a ten
This
continuum over
State v.
94 Idaho
span
hardly supported by
(1971).
weeks con-
two
9H
for hear-
on
states this matter
The Court
Investiga-
for
Motion
ing the defendant’s
order
this Court for an
spectfully moves
Mr.
filed
this date.
tive assistance
public
permitting
expenditure
his
support
mo-
Kinney was heard
investigator for
private
funds to hire
CONCURRED
MR. CALHOUN
tion.
infor-
discovering
purposes of
facts
TO
DEFENDANT WAS
THAT IF
will im-
mation which defendant believes
TRIAL, HE
AN
NEEDS
HAVE A FAIR
prosecution wit-
peach the
INVESTIGATOR.
preliminary hear-
testifying
nesses
grant
motion
prepared
Court is
cause,
expected
and which are
in this
submit an addi-
requests defendant
but
testify at
scheduled for Octo-
trial now
it
be and
Affidavit on who will
tional
ber
1982.
investigation is to reveal and
what
provi-
is based
This Motion
Kinney
he would need
why. Mr.
stated
Code Section 19-852 and
sions of Idaho
his demonstration
prepare
time to
some
counsel
upon the Affidavit of defendant’s
writing
can send it
annexed hereto.
Schwam.
July,
day
DATED this 29
July
Clerk’s
Court Minutes
Kinney
added).
E.
Record,
Is/ Robert
p.
(emphasis
ROBERT E. KINNEY
present in court with at-
Defendant was
Attorney for Defendant
repre-
torney,
Kinney.
Mr.
Kinney
Swayne.
gave
Mr.
by Mr.
sented
Assistance,
Investigative
for
Motion
request
for
specifics
the court the
Record, p. 28.
Clerk’s
investigation for defendant
payment of
present in
Defendant not
court but was
he
of those
felt
listed the names
attorney,
Kinney.
Mr.
represented by
Dally, Jacobsen
impeach witnesses
represented Mr.
State was
Calhoun.
Nelson.
Limine,
by Mr. Kin-
A motion in
filed
all
findings were that not
these
Court
presented
argument.
ney, was
for
investigator____
required
witnesses
in-
denied this Motion. Court
Court
prefers
attorney at-
the defense
Court
structed that
Prosecutor and
tempt
witnesses first
tele-
to contact
investigation
may
Sheriff
undertake
investigator at
phone.
denies an
Court
criminal records of all witnesses used
defendant
proposes
this time
preliminary hearing.
give
pos-
information
attorney
all the
Kinney
Mr.
informed the court and State
(on
prospective wit-
the location of
sible
psychiatric report
from Dr.
authorities____
used) to the
nesses to be
had not been received but when
Wetzler
sign
will
an order that authori-
The court
arrives,
copy
all will receive a
cooperate to locate these individ-
ties will
report.
effort must not include
uals but their
Kinney
Mr.
is to make
actual contact.
JURY TRIAL for
Court set date for
contact;
prepare
&
Order.
MONDAY,
4, 1982 at 9:00
OCTOBER
to have all
A.M. and advised the defense
involved
Kinney
Mr.
asks that the house
way by
legal matters out of the
9-1-82.
provide
investigated to
in one incident be
Jury Trial will be
place
for defense. Court allowed
information
at a later date.
announced
photo-
and that
the house be located
investigation.
graphs be taken
July
Clerk's
Minutes
Court
added).
Record,
(emphasis
p.
August
Clerk’s
Minutes of
added).
Record, p.
(emphasis
present in court
Defendant
attorney,
Kinney.
Mr.
but was
represented by
present
Defendant
attorney,
Kinney.
by his
Mr.
present
represented
on behalf of
Mr. Calhoun
represented by
Calhoun.
Mr.
State was
the State.
quests
Kinney
that Mr.
submit his state-
expenses
ment of
investiga-
incurred in
Mr. Kinney advised the court he had
tion
County
to the Board of
Commission-
one,
contacted
all
witnesses but
who
County
ers of
payment
Clearwater
request-
had an unlisted number. Court
*44
denied,
and if
grant
the Court will
request
unpub-
ed that Mr. Calhoun
payment
motion for
from District Court
lished number
that
Mr. Kin-
witness.
Funds.
ney moved
he be
to
allowed to travel
personally
Seattle to
contact the witness-
30, 1982,
September
Court Minutes of
expense.
objection by
es at court
No
Record, p.
added).
(emphasis
Clerk’s
grants
up
State. Court
and authorizes
to (The caprice
judge
in
regard
this
expenses
$300.00 allowance for
of Mr.
exposed to public view in Stuart I on direct
Kinneg
dags.
for a few
appeal,
opinion.
but
in
majority
not
trial,
Court announced the
is set
860.)
See
The law amended until lature, prior thereto and as it had been post re- defendant’s conviction prior jury did not allow even statehood Judge lief. well documented is Too after separate case to murder finding, prominent in Schwam’s his written them. cause was submitted to decision, that defense counsel judge to the first take Schwam stipulated could make use of change advantage of the in the law which contained just and 19 transcript. became effective two months days homicide in this case. Un before the Moreover, type as to same of testimo- jurors doubtedly his announcement ny which the court allowed the to hear *45 high him in The law placed favor. which trial, it must be also remembered that however, jurors, he did not declare to those linch-pin upon imposition was the of which placed upon judge exercising the of onus penalty the death was fastened. matter, discretion such a circumstance taken, Note should also be as it was also heretofore discussed. su my opinion on the the direct from 110 pra, Idaho at at 863 sentence, conviction and the that the trial (Bistline, dissenting). J. judge right cut off defense counsel’s to request sequestration jury in his however, therein, Not discussed opening panel pro- remarks to the entire of legislature, majority blithely the the after spective jurors: point had held this that there was “no fact, probably good is as a time any juror exposed to indication that any explain type to that this is of publicity prejudicial during the course of case the request in which Defense can trial,” very ensuing the next ses- jury sequestered. be That grant judicial sion withdrew that of discre- during means all the trial is whoever “in where the tion causes defendant has jury chosen to be on the have to charged degree first been with murder.” be all under the control of the bailiff at 145, 1987 Idaho Sess.Laws 289-290. Ch. placed you’d times. That means be in a legislative clearly The in a sense was that you motel saw and whatever or heard capital penalty case where the awesome of away would be censored. You’d be from imposed jury may execution be must be families, your you eve- wouldn’t have sequestered. that translates is What into nings any to deal with matters business simply jurors being of this: The risk taint- is, words, you have. might It other well-meaning people ed the comments of go-
enormous inconvenience. That’s not
ing to
happen
jury
great, especially
this ease. The
is
too
all of
is
where
those
going
be sequestered.
to
I am no
too,
people
probably
jurors,
are
longer required
to do
by law
that.
being exposed
publicity,
media
to
very
Stuart,
ordinarily
the nature of the
beast is
supra,
State v.
110 Idaho at
Except
BISTLINE, dissenting. Idaho, gap, legislatures Territori- abundantly It is now clear that the Court State, recognized al and have that in such saga will issue its final degree emotional cases as first murder a State v. Idaho’s first torture mur- may very procedural defendant see little of affairs, being der case.1 Such the state of process jurors due unless the are isolated prologue is written not for the benefit improper influences. In Idaho’s cele- brethren, my respected but as an aid for case, brated first torture murder so much judges system those in the federal who will opportunity worse was prejudicing preside over Stuart’s endeavors at obtain- the accused. just in those courts a more treatment system. My than that dealt to him in this shot, parting A the statement which the purpose comments are offered prosecutor judge: made to the MR. CAL- enabling counterparts our federal to better HOUN THAT IF CONCURRED DEFEN- way through many pages wind their TRIAL, DANT WAS TO HAVE A FAIR record, transcript, and briefs. Added to HE NEEDS AN In- INVESTIGATOR. opinions that are the written on the direct stead, per discretionary generosity *46 I), appeal and now on denial of {Stuart court, investigator the trial no was allowed II). post-conviction relief {Stuart expense money and for Mr. $300 Kinney to travel to the Seattle area for a days investigation few of on his own. This THE VARIANCE AND compliance is not even a scintilla of PROCEDURAL DEFAULT statutes, legislature’s I.C. 19-852 §§ My opinion in I called the atten- 19-861, 26, 27, p. and supra, and 28. If the tion of the other four members of this judge in actions of the trial this case did highly prejudicial Court to the error deprive procedural the defendant of Unquestionably trial court’s instructions. process due then there will never be such a there is a fatal variance between
case. charge of the Amended Information and
APPENDIX C jury: the trial court’s instruction to the charged The defendant was with the fa- Bistline, J., Opin- dissent to the 1990 striking boy tal with the intent to 12, 1990, ion No. filed March which pain, inflict with the intent to extreme Opinion states on its face: “1989 No. satisfy of some sadistic inclination 10,1989, hereby issued March withdrawn defendant, the court instructed the and this is substituted therefor” jury that ‘It also be torture to shall (a) place deals with: the variance that took being on a human extreme and inflict proce- and the claim of defendant’s State’s prolonged brutality irrespective acts of default, (b) place; dural which did not take proof suffering’— intent to cause of of majority’s conclusion that Stuart was 18-4001, language which is found responsible as to the for invited error wholly but which was not included instructions; (c) proportionality court’s charge upon which the defendant was (d) majority; considered put to trial. stipulated to use facade that defendant testimony given preliminary hear- State v. of (Bistline, (1985) dissenting) P.2d J.
ing: opinions continuity ensuing of on Stuart’s with the sentence March 1989 this Court achieved requires post-con- the court to hear from counsel of court’s denial of the district exercising II, before discretion. viction relief. In both Stuart I and Stuart rehearings requested granted, and the were appeal, S.Ct. 1. Stuart I refers to Stuart’s direct reargued, and in each the Court issued a case opinions Court in Stuart No. 14865. The opinion. first and second 163-234, I are found at 110 Idaho II, 17014, refers to the S.Ct. No. 833-904. was committed as ing that the crime justices in (emphasis original). Those follows: majority were not in the least aroused Orofino, Francis Stuart That Gene variance, can being alerted day about the 19th Idaho on or they read I wrote and only mean that what Orofino, in the September, it, or, they did not to read it. ignored bother Idaho, Clearwater, County of response. certain there was no For being, there did then then and opinions were issued Stuart unlawfully feloniously kill a there rehearing was filed ap- intentional being, human with the supporting A brief was Stuart’s counsel. human be- plication of torture to said filed. The brief raised five is- thereafter Francis ing, to wit: that the said Gene sues, issue one of which was the variance Miller, did strike and hit Robert out just Counsel for Stuart set mentioned. being, repeatedly with the a human charging portion of the Amended Infor- satisfy suffering to cause or to intent alleges: It mation. inclination of the said some sadistic Stuart, thereby inflicting Orofino, Francis Gene That Gene Francis Stuart of Miller, Idaho, great bodily injury upon Robert day Sep- 19th on or about the Miller, 1981, Orofino, County mortally wounding Robert tember Idaho, Clearwater, State of then and the said Robert from which wounds being, Miller, did then and there unlawful- year boy, there a three old sickened feloniously being, Clearwater, ly and kill a human County and died in the application with the intentional tor- Idaho, day the 19th State of being, to said human to wit: that ture *47 September, 1981. the said Gene Francis Stuart did strike defendant, charge, To this Gene Miller, being, a human and hit Robert Stuart, plead guilty. has not Francis repeatedly with the intent to cause suf- added). R., 53, (emphasis How- fering satisfy or to some sadistic incli- ever, gave jury anoth- the district court Stuart, nation of the said Gene Francis language with er instruction in inconsistent inflicting great bodily injury thereby Information: charge of the Amended mortally upon Robert Miller and wound- Miller, ing Robert from which wounds Miller, year a three old the said Robert NO. 18 INSTRUCTION County boy, and died in the of sickened killing of a Murder is the unlawful Idaho, Clearwater, of on the 19th State aforethought being human with malice day September of 1981. application of torture or the intentional contrary 18- All of which is to Section being, a human which results 4001, 18-4003 of the Idaho Code. being. is the death of a human Torture I),
R., 14-15,
S.Ct. No.
{Stuart
pro-
infliction of extreme and
intentional
added).
(emphasis
Amended Information
longed pain
the intent to cause suf-
objection
made no
to the
Defense counsel
fering.
be torture to in-
It shall also
was in
giving
Jury
of
Instruction
being
on a human
extreme
flict
charge spelled
language
exact
brutality irrespective
prolonged acts of
out in the Amended Information:
suffering.
intent
to cause
proof of
of
being caused
The death of a human
INSTRUCTION NO.
irrespective of
such torture is murder
kill;
proof
specific intent to
torture
Jury, you
Ladies and Gentlemen of
equiv-
causing death shall be deemed
Idaho has
are instructed that the State of
intent to kill.
alent of
against the
filed a criminal information
added).
R., 55,
(emphasis
Counsel
defendant,
charg-
Gene Francis
aptly remarked:
alleg-
for Stuart
Degree
him with First
Murder
necessity
which obviated
finding
suffering,
intent
cause
if
Bistline,
As noted
this In-
Justice
prolonged
extreme and
acts
brutali-
jury
any re-
struction relieved the
existed,
ex-
ty were
to have
was
found
sponsibility
proof
to find
intent
tremely improper given
specific
lan-
suffering.
permitted
cause
It also
guage
It
Amended Information.
finding
guilt
if the
found extreme
apparent that,
equally
if such intent
prolonged
brutality
acts of
to have
proven,
of al-
propriety
need
be
existed, despite the fact that such acts
lowing admittedly prejudicial evidence
charged
were
in the Amended Infor-
intent,
purposes establishing
this
mation,
supported by any
nor
reasonable
seriously questioned.
If
to cause
intent
construction of
which oc-
the events
suffering
proven,
need not be
it cannot
September 19,
Appellant
curred
probative
said that the
value of this
that,
readily acknowledged
at trial
outweighed
highly preju-
evidence
its
September
poked young
he
dicial effect.
chest, spanked
ROBERT MILLER in the
Appellant’s
Support
of Pe-
Memorandum
him, and struck
which ultimate-
the blow
(filed
Rehearing
tition for
8-5
issue,
ly
primary
caused his death. The
8, 1985)
added).
(emphasis
July
Appeal,
considered both at trial and on
rehearing
granted
A
but limited to
actions,
Appellant’s
was not
but his state
giving
Jury
of error in
the issue
September
day
of mind on
appropriate
Instruction 18. An
order was
these acts were committed. As the Trial
directing
entered
to file a brief
pages
indicated
449-450 of the
Court
brief,
responsive
to Stuart’s
Transcript,
quoted by
Trial
issue,
single
to file
Stuart was allowed
3, 1985, Opinion
in May
its
reply
brief.
pages 11-12:
General,
Thomas,
Lynn
The Solicitor
E.
particular
COURT ...
‘[THE
In]
brief,
page
the State’s
authored
five
case, the Prosecutor must convince
“pro-
gist
was in
of which
that Stuart
your
the trier
client
of fact
cedural default:”
And
engaged in a
torture.
course of
*48
death,
question
not neces-
The failure to
in the
produced
child’s
raise this
procedural
appeal was a
default
sarily
only in-
intending death but
here,
raising
only
precludes
the issue not
case,
And so this
tending torture ...
post-conviction proceedings,
but
Wat
extent,
great
turn
going
to a
State,
v.
kins
going on in
what the
thinks was
courts,
(1980), and in
federal
your
during
client’s mind
that interval
’
Sykes,
Wainwright v.
433 U.S.
he
this child ...
when
dealt with
(1977).
L.Ed.2d
point any view there isn’t difference sentence, to ascertain to see that look capital between a case and another impartial he had a trial? fair legislature, capital The kind case. cases, asked the yes, absolutely, has Court review MR. THOMAS: Oh sentence, procedural but not the nice- is sen- Your Honor. Sentence review aspects capital procedural ties or the of the ease tence review the context of appeal brought raising is to determine wheth- unless an those cases.
vating list in the In fact that’s statute. aggra- premise the fundamental of those er, finding assuming guilt that the factors, vating how the crime was com- accurate, prop- the sentence of death was culpability in mitted and the defendant’s er in the facts and circumstances of the the crime. case. But I don’t believe that was an you JUSTICE BISTLINE: So would go proce- invitation to the Court to into effect, say, in when we have an questions ques- dural or other kinds of appeal in a case where the death sen- relating admissibility tions to the of evi- imposed, any mem- tence has been impact dence of whatever that do not there is counsel ber the Court—and particu- impose the court’s decision to a defendant, making the for the and we’re lar sentence. mandatory review—that member of I’m I JUSTICE BISTLINE: not sure with a the Court who concerns himself you saying we understand. Are question as to the fairness of the trial would or would not search the record brought up by hasn’t the de- been proceedings of the trial to see if just being fendant himself is sort of an had had a trial? defendant fair intermeddler, busybody? my- Such as self. I think MR. THOMAS: that’s correct.
I think that the automatic review— that, MR. Not Your THOMAS: Honor, you saying I ‘and think are JUSTICE BISTLINE: What’s correct? said, I finally, forget what have because That we or would not? going federal this case is over to the MR. THOMAS: You would not have they’ll any- make the decision court and authority go beyond sentence re- you way.’ really Because that’s what do only thing specified view which is the you when don’t insist on adherence in the context of the automatic review I procedural rules. And don’t state’s capital It’s almost inconceivable case. idea, good really think that’s because going that there’s not to be an you’ve got on a collateral review a feder- case, capital but let us assume the al court is at least twice removed from says appeal. defendant I don’t want an more at- the facts. The record becomes executed, Gary such as Gil- want to be error tenuated. The chance of factual hook in more did. The Court isn’t off the greater greater and and obvi- becomes review, terms of sentence but it isn’t finality is ously the interest in attenuated go entitled in those circumstances to into as well. procedural evidentiary aspects of 231-33, 715 P.2d at the trial. (Bistline, (some dissenting) em 901-03 J. you’re BISTLINE: cor- JUSTICE If added). original; emphasis phasis in some rect, why require, which then would we majority comprised the justices who assuming ap- no require, do there’s we upheld the conviction and both himself, peal by why do we the defendant relying part on the death sentence require transcript proceed- They procedural default. have talisman of ings? grips yet to come to therefore *50 Well, transcript of MR. THOMAS: by the egregious error committed tri- most facts, proceedings lays the trial out unin- may have been al court. The error background gives the factual however, considered, tentional; things it all relating to crime. It tells all the details Simply intentional. likely more than important con- the crime and that’s trial the end of a three week put, at the because passing in sentence included an jury sideration to the court’s instructions course, is, a had ground the nature of the offense for conviction which alternate Amended Informa- capital aggravat- pleaded in the consideration under the not been aggra- in the tion. ing factors that are set out
919
in a
raised
be heard
trial of
issues
preme
Stuart I
been
there, because the majority addressed noth-
forded the
treatment af
(1948).
rehearing is similar to the on its initial
address the
18. After the
This
U.S.
majority’s
Court Cole v. State of
rehearing.2
the mind of the majority is still
opinion
196,
petitioners by
Cole,
issue of
opinion.
granted
rehearing,
treatment of the
was issued
the state
S.Ct. 514
given
Whatever
a
rehearing
the Arkansas Su
Jury
the Court stood
[92
supreme
specifically
might
Instruction
Arkansas,
L.Ed.
after the
court
have
644]
State v.
ring).
tions
[916]
Cole,
be to
on which he
by
prison following
never made.
of due
constitutional
a criminal
or federal....
333 U.S. at
(1990) (Bistline,
omitted); quoted
convict
Smith,
charge,
process
proceeding
was never tried as would
him
[117]
rights
201,
if
It
to send an accused to
upon charge
conviction of a
desired,
Here, majority
of this
110 Idaho at
Court has decid- Stuart
No
due
30 as amended does not
clearly
is more
preclude assignment
instructing
established than that no-
of error in
specific charge,
tice of the
and a chance where the defendant in a criminal case fails
counsel,
majority opinion
2. The full text of the
and continues to adhere to the views
*51
following rehearing
issued
is this: "A
expressed and the conclusion reached in the
rehearing
granted
in this matter
the
I,
227,
opinion.”
earlier
Stuart
demonstrates statement, simple ‘justice delayed is question.”). object to the instructions to ” Deshazer, justice Idaho denied.’ 93 Moreover, instructing jury in- lesser 274, 409 (Shepard, 460 P.2d at J. dissent- discretionary offenses not cluded is ing). court, the evidence would rea- where sonably support such a conviction on a a civil Stuart is not case. The stakes at our higher lesser included offense. As Court of issue here are somewhat than in Here, Deshazer. statement Justice Appeals has made clear: Shepard may referred to Deshazer be 19-2132(b) Idaho Code states: ‘The § thusly: injustice, is worded “Justice denied jury shall lesser instruct on carelessly dealt out is injustice out- they sup- included when offenses are rageous enough totally destory all sense ported by any reasonable of the view It has of inertia.” been conceded that In Lopez, v. 100 Idaho evidence.’ State defendant, Gene Francis 102, 1003, (1979), 593 P.2d our responsible the death Miller. of Robert ‘It is Supreme Court stated: clear that guilty has is It been conceded that he 19-2132(b) duty it the I.C. makes manslaughter. It has been the crime of the jury the trial court to instruct him jury that a convicted established they when are lesser included offenses degree first torture murder. It has been supported a reasonable of the view judge, equally well-established that evidence, is re- even the court not if office, long ago now from such sen- retired quested duty to do The same exists so.’ a histori- tenced to death. It is now reasons, defendant, if a for tactical even appeal cal the convic- fact that on direct requests no expressly instruction affirmed. tion and the sentence were both given. be a lesser included offense and is What has not been established had trial on Atwood, true is that Stuart a fair v. 105 Idaho issue of issue his conviction and on the The (Ct.App.1983). perceived P.2d death sentence. As Justice imposed no doubt flavored the procedural defaults written, Shepard law does not has also majority entirety opinion, II person guarantee perfect tri- an accused justices in making it more for the difficult al, guarantee a fair trial. but it does majority to at all concerned with the instruction and variance between on the chal- direct information. sentencing, Jus- lenging the conviction and Huntley separate
tice wrote a concurrence TOUCHED UPON his that: register PROPORTIONALITY view order sentencing process capital Idaho [T]he years ago Shepard, Twenty-one Justice respects: in two unconstitutional recently expressed the view departed, now (1) provide for utilization of It does appellate “ordinarily occurs that an dissent of both jury, which in violation outrage only when Justice’s sense constitu- Idaho and United States his sense of inertia.” Deshazer overcomes tions; and Tompkins, (1969). year his That was first (2) sentencing proceeding, as con- the bench of the occupancy of a seat on with the ducted the trial courts outrage Supreme Court. court, by permitting of this approval do with experienced in he Deshazer presentence inves- the admission protracted litigation had been hearsay civil evi- tigation report other years. The relief objection over seven one-half of the accused over dence injuries his sought right the accused deprives Deshazer witness- Shepard closed cross-examine arm. Justice confront ease es. by remarking that “this that case *52 Obviously,
to be
where there is
killed.
I,
177,
murder,
in the earlier
110 Idaho
Scrog-
thereafter make Windsor and
227,
(on rehearing
at
proportionality light sentence in Stuart’s (Justice dissenting opinions of two Johnson those two That is a decisions. sad com- myself), and an excellent brief mentary, because: (Robert attorney Kinney). E. Stuart’s reasoning The Court’s in its Windsor opinions appli- Scroggins equally Scroggins
cable in In the child Stuart. THE THAT THE DEFEN- FACADE years older than the killed was but a few DANT STIPULATED victim, by child killed Stuart. today’s II Part IIA of older, being was not very reason of Court, majority note for the has taken killed in a more brutal than manner of Stuart’s contention the trial raped, kidnapped, but was considering erred dignity human any vestige robbed sentencing hearing, yet, she murdered. Worse before deny any post-convic- relief in continues to girl helpless was made to handcuffed proceedings: knowledge going that she was tion suffer the fort, least, and, opened my one view at and effort has been 3. Most of attention display majority opinion opinions confronting have the fallacies which directed Court, opinions, by now been withdrawn. So that has been issued readily opinions are more under- majority But in Stuart II can be withdrawn. whim stood, Appendix my opinion. My B the with- majority have attached withdraw cannot opinions. opinion represents drawn March 1989 considerable ef- March 1989 *53 sentencing hearing
3. That a
1st, 1982, pursuant
held
on December
claim
The trial court denied Stuart’s
and in
notice to counsel for the defendant
preliminary hearing
in the use of
error
presence
of the defendant the Court
sentencing,
testimony
specifically
at
aggravation
heard
in
relevant evidence
original
in
pointing out
Stuart’s
mitigation
argu-
and
and
of the offense
Court,
to this
direct
State
Further,
ments of counsel.
it was
715 P.2d
agreed and understood
both
State
(1985),
this Court had held that
and the defendant that
Court would
stipulated
sentencing
at
‘[i]t
sentencing
rely upon,
part
as
hear-
sentencing the defen-
hearing that when
preliminary
ing,
evidence
dant the court would consider
presented
preliminary hearing
hearing
trial.
and the
in-
along
presentence
with the
and trial
R., 220-21, Findings of the Court in Consid-
vestigation report.’
(Stuart I).
ering
Penalty
For
the Death
added).
(emphasis
Majority Op., 1218-1219
Judge
finding,
certain
Schwam wrote
accurately
doubting that this
There is no
ap-
doing
perpetrating,
and in
so was
ruling,
Judge Schilling’s4
describes
may well be
parently perpetuating, what
Schilling
Judge
was based
what
history
the most insidious untruth
by this
opinion
read in the
issued
Stuart
jurisprudence.
criminal
There was
Court,
written
Chief
and which was
stipulation.
no such
majority. Finally
Justice Bakes for
expend-
Much effort and much time were
with what it
majority comes face to face
pointing
members of
ed in
out to
other
so,
concerning which
declared to be
II
in the March 1989 Stuart
the Court6
further from the
nothing could have been
sentencing hearing:
opinions, that at the
truth:
witness,
put on one
After the State had
sentencing
stipulated
hear-
It was
at the
that he had ob-
jailer,
who testified
sentencing
ing
the defendant
that when
part,
no remorse on defendant’s
served
consider evidence
the court would
Judge
ruled that he would dis-
Schwam
presented
at the
along
presentence
completely
and did so
strik-
investi-
with the
count
trial
[it]
gation report
testimony. The
jailer’s
all of the
presented no more witnesses.
4.
Boyle
Schilling presided over the
and McDevitt.
sentencing.
Justices
proceedings.
post-conviction
passage.
placed
Explicit
reliance
today's
Stuart II
1 to
footnote
See
the Court.
sentencing/aggravation/mitigation
error,
that no
hearing was
tri-
Preliminary Hearing or the
sentencing hearing
provided
formal
al;
correct?
is that
*54
requested.
had
I.C.
19-2516
been
§
Yes, sir, that is cor-
MR. CALHOUN:
Op., 1219-1220.
Today’s
Majority
II
Stuart
rect.
Osborn, how-
one examines State v.
When
Okay.
THE COURT:
highly
ever,
conjecture
becomes
turn to
validity.
only need
moment,
One
doubtful
KINNEY:
a
MR.
Just
190, to dis-
parties had here Shep- along with Justices testimony appellate in the sen- scene hearing preliminary Huntley. Donaldson, ard, tencing the defendant proceeding, stipulated aberration, sentencing implicitly counsel at An stands little. 9. Osborn at best transcript. hearing preliminary of a where admission such case has been second there opinion of March issued a new parts Today being Those it is withdrawn. has, lot, inherited Chief Justice Bakes II changed are Part which have been appeals. It is dishearten- all of IIA, part has been Part and a new placed position telling in the ing to be added is Part III. experienced capable appellate justice regard majority’s that he should have had more March 1990 By practicing added. As written comparison, the record. no Part III was today’s Opinion Part III of March 1990 attorney handling criminal defenses could majority opinion is identical. October 1990 (at great personal and have done more cost) Kinney in financial than did Robert PART II IIA of the March seeing attempts that Stuart was opinion read: fairly. Kinney at- least dealt with Mr. get tempted to the Court concerned about II Schwam’s misuse away turned but was argues separate three *56 Continuing ef- empty handed. that same for the district court to grounds existed fort, Kinney post-conviction relief Mr. post hearing petition on his grant a court proceedings presented to the district (A) grounds relief. Those are conviction absolutely assignment of irrefutable hearing testimony preliminary the use of not, by in person error that Stuart had (B) sentencing; purposes of Stuart’s counsel, prelim- stipulated to the use of the rights were violated claim that his inary hearing transcript. Again defense (C) negotiations; and plea bargaining Schilling away. Judge turned counsel was evidence which was newly discovered Bakes, three read that Chief Justice with by the four affidavits submitted raised
justices joining
opinion, had ruled in
We will deal with
the district court.
stipulated.
I that Stuart had so
Stuart
in turn.
each of these
the doctrine of the law of the
Because of
case,
powerless
district court was
A.
otherwise,10
though the fact of
say
even
plain
pro-
the matter was as
to see as
Hearing Testimony
Preliminary
Use of
Dooley’s
Attached
verbial nose on
face.
he raised a
argues first that
Stuart
Mr.
Appendix
A is Part III of
hereto
im-
relating
of fact
material issue
Kinney’s
supporting
brief
preliminary hearing testi-
proper use of
timely
rehearing in
which he did
Stuart
the time of
mony by the trial court at
file.
First, we note that under
sentencing.
Proce-
Post-Conviction
Idaho’s Uniform
APPENDIX D
relief actions
post
Act all
conviction
dure
Being
highly perti-
an illustration of how
statu-
brought pursuant to the
must be
opinion
parts
majority
of the
nent
19-4901.
tory grounds set forth
I.C. §
(Petition
re-
for Post-conviction
II
provides that
specifically
The statute
changed, thereby
lief)
drastically
have been
which could have been
“[a]ny issue
not,
challenges to
circumventing
appeal,
Stuart’s
on direct
but was
raised
may
The
ever-changing opinions.
forfeited and
not be considered
majority’s
ap-
it
10,
proceedings, unless
post
A
conviction
March
1989.
first
was issued
court,
on the basis of
pears to the
the Court
year later was withdrawn
remanded)
Smith,
appeal
after
has been
County Highway
113
case which
Dist. v.
See Ada
liberty
disregard
878, 880,
(Ct.App.1988),
lower courts are not
749 P.2d
499
Idaho
higher
question
which the
answer to
approval
Sec. Bank
citing
to Suitts v. First
higher
15, 21-22,
court
N.A.,
spoken
Idaho,
has
and ruled.
P.2d
court
Idaho
A district
(1985).
itself is not so constrained.
operation of the doc-
1380-81
thoughtful.
independent
(in
proceedings
cannot be so
in a
requires
further
trine
12, 1989,
granted by this
on June
basis
[115]
I.C.
substantial
diligence,
guilt and could
about the
deposition or
for relief raises a substantial
Idaho
19-4901(b).
have been
reliability
factual
[208,
otherwise,
not,
766]
showing by
in the exercise of
See State
presented earlier.”
P.2d
that the asserted
[678]
finding
v.
affidavit,
Beam,
(1988).
doubt
due
with each of
opinion in
ho
stances as
of whether or not there was
weighing
against
129,
The trial court did not err
post
Stuart’s
conviction claim on the is-
Preliminary Hearing
Uses of
hearing
preliminary
sue of the use of
Testimony
testimony
sentencing.
argues
Stuart
that the trial court erred
hearing
by considering preliminary
testi-
holding
parties
in
Our
Stuart I that
mony
sentencing hearing. This
at the
preliminary
'stipulated' to the use of the
hear
not raised
in his
issue was
ing testimony
sentencing proceeding
was
in the
finding
the trial
based
court
Stuart,
appeal,
direct
State v.
110 Idaho
1, 1982, sentencing hearing which
December
(1985). Nonetheless,
930 405, (1981), (1980),
Idaho
Osborn and Coutts have
stood,
now, for the
proposition
until
A.
transcript
preliminary hearing
use of
at
Preliminary Testimony
Use
sentencing
appropriate
whenever the Su-
finding
preme
makes
erroneous
argues
the trial court erred
In
parties stipulated
such use.
that the
hearing testi-
considering preliminary
fact,
obvi-
if one reads Osborn it becomes
mony
sentencing hearing.
This
agreed
parties
ous
to the use
that both
in his
issue
not raised
transcript.
preliminary
appeal,
direct
v.
State
And,
Coutts,
realize
if
reads
one will
one
Nonetheless,
(1985).
931 requires proof no an intent to defendant, and the citation to Coutts which the of (“It also be suffering! shall torture way change in no fact. cause by does this Osborn being human extreme to inflict on a finding by Like the Court that the the irrespective of brutality prolonged acts of stipulated the parties to use suffering.”) cause proof of intent to at sentenc- “evidence” Court, in the face majority For a finding jury that the must ing, the Court’s Jury language plain contained of to have that Stuart intended concluded jury to “find” that Instruction suffer is less than credible. make victim possessed requisite found Stuart As the Court stated: murder, preposterous. is intent torture not by murder torture does [Although presented to According instructions kill, require showing an intent to a no need for them jury, there was require making unique, crime it does part of Stuart. All find intent on torture, or the showing a of the intent to that Stuart in- they needed to was find suffering great pain and intent to inflict acts prolonged bru- extreme flicted case upon jury the victim. The However, charge tality. was present, such an intent was found put he was of the information by finding supported and that factual life at stake. This to trial where his competent evidence. substantial glaring error the most was fundamental (emphasis at 846 110 Idaho at reasons. kind—for three obvious added). First, required by finding no was ever by in- required their jury jury that intended deceased con- to find such intent before structions contradicted the directly to suffer. This mur- victing degree of first torture jury in this assertion Court’s “[t]he jury plainly der. As one instruction to such an intent was case found that Second, already high- states: present____” as was lighted: legislative of intent its abolition [T]he INSTRUCTION NO. murder tor- definition of alternative killing of a Murder is unlawful clearly in with the first ture is conflict being aforethought human with malice definition, properly which was application the intentional of torture
or adopted Supreme from California being, Court, which results human headlong conflict with and also being. of a human Torture is death every public ‘In crime or I.C. 18-114: § pro- intentional infliction of extreme union, joint must exist a offense there longed suf- pain with the intent cause intent, or criminal operation, of act fering. in- It shall also be torture to following sec- negligence.’ Under the being human extreme and on a tion, 18-115, may be intent or intention § flict brutality irrespective circumstances, acts prolonged has but it established suffering. proof cause of intent required. always been being caused The death of human (Bistline, 716 P.2d at irrespective such murder torture Third, charged dissenting). J. kill; torture proof specific intent with Information commit- by the Amended causing equiv- death shall deemed the murder, i.e., intending “to ting torture intent to kill. alent of suffering satisfy or to some sadistic cause inclination____” (Bistline, R., 14-15, at 857 S.Ct. No. 715 P.2d 110 Idaho 833). added). (Stuart in- 715 P.2d (emphasis This dissenting) J. 18-4001, charge not coincide patterned I.C. This does struction is after were at variance instructions which statutory of murder. definition Similar to charge the information. of torture includes definition definition *62 O’Neill, the defendant in v. 118 Ida (1990),
ho P.2d 121 Stuart was instructions) (by
held to answer
something distinctly different than he was
charged information.4 Stuart’s grossly
conviction resulted from erroneous
instructions, clearly necessitating a second hopefully any
trial which will be free of replete in prejudicial
such numerous errors error gross
this record. Such fundamental crimi
should not be allowed to stand trial, especially capital
nal not in a case.
Gene
Petitioner-Appellant, Idaho, Respondent.
STATE
No. Idaho.
Supreme Court of 28, 1990.
Nov. got jury. never guilty, that case plead so opted to 4. Unlike O’Neill