Sivak v. State
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Opinions
DONALDSON, Chief Justice.
In 1981, Lacey M. Sivak and his co-defendant Randall Bainbridge were convicted of murdering an attendant at a gas station in Garden City, Idaho. He was also convicted of robbery and using a firearm in the commission of a felony. Sivak was sentenced to death. Sivak’s convictions and sentence were affirmed on appeal. State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), cert. den., 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984).
Sivak then filed his petition for post-conviction relief on September 24, 1984, alleging numerous points of error in proceedings leading to his conviction and sentence and their affirmance on appeal. After a hearing, the district court found Sivak’s arguments to be without merit and dismissed the petition.
Sivak now appeals and raises the following arguments based on both the United States and the Idaho Constitutions. We will address additional facts as they arise in the context of each issue below.
I
When the appeal of Sivak’s conviction and sentence came before this Court originally, we vacated the sentence and remanded the case to the district court to remedy a serious error that had occurred at the time the original judgment and sentence was imposed on the defendant. That error occurred when the district judge’s written findings of fact and conclusions of law were delivered to Sivak and his counsel without the benefit of an open court hearing. I.C. § 19-2503 and I.C.R. 43(a) require that a defendant’s sentence be given in open court with the defendant and his counsel present. We therefore ordered the district court to comply with the requirements of I.C. § 19-2503 and I.C.R. 43(a). In our order, issued May 24, 1983, we stated:
“NOW, THEREFORE, IT IS HEREBY ORDERED that the sentence of death imposed upon the defendant in the absence of the defendant [be] remanded to the Honorable Robert Newhouse, District Judge of the Fourth Judicial District of the State of Idaho, Ada County, who shall within fourteen (14) days from the date of this Order, in open court and in the presence of defendant and his counsel, enter a judgment of conviction and impose such sentence upon the defendant Lacey M. Sivak as to the said District Judge may appear to be just and appropriate. In the event that said Judge shall impose a sentence of death, a warrant therefor shall issue in accordance with I.C. § 19-2705; ...”
When we ordered resentencing we did not require the district court to consider additional information which may be relevant to the mitigation of the defendant’s sentence. At the time we issued our order we were unaware that any such evidence existed.
On April 4, 1983, the district court did convene a hearing in which the defendant and his counsel were present. At this hearing, Sivak’s counsel brought to the attention of the court evidence that during the year and a half since Sivak had originally been sentenced, Sivak exhibited very positive and productive behavior in prison, particularly with respect to his spiritual well being. Defense counsel moved to admit this additional mitigation evidence through testimony of several witnesses, and he moved to supplement the presentence report. These motions were denied from the bench and the trial court then proceeded to simply read into the record its original findings made when it imposed the death penalty in December of 1981. The court did permit Sivak himself to address [200]*200the court and have his own comments incorporated into the record. The court then restated its conclusions made in December of 1981 and resentenced Sivak to the same sentence.
Initially, we must point out that our intent in vacating Sivak’s sentence in our order of March 24, 1983, was not merely to require that the defendant and his counsel be physically present while the court recited its findings and conclusions made over a year before. Inherent in the order that the district judge “impose such sentence upon the defendant Lacey M. Sivak as to the said District Judge may appear to be just and appropriate,” was the obligation of the judge not to ignore any relevant motions or arguments made by the defendant or his counsel which would affect the justness and appropriateness of the sentence.
A review of the record and the precedent of the United States Supreme Court on the critical importance of mitigation evidence to the imposition of the death sentence, leads this Court to the inexorable conclusion that it was error of the district judge to refuse to hear, any of the defendant’s mitigation evidence offered at the April 4, 1983 hearing. We must, therefore, remand this case back to the district court once again for a resentencing that is consistent with the dictates of the defendant’s constitutional rights. Our conclusion today is based on the principles established in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) and their application in a context very similar to the present case in the case of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).
In Lockett, the United States Supreme Court reversed and remanded a death sentence because Ohio’s death penalty statute did not permit individualized consideration of a broad range of mitigating factors as required by the eighth and fourteenth amendments to the U.S. Constitution. The court reiterated the principle from Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), that “in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender” in addition to the circumstances of the particular offense “as a constitutionally indispensable part of the process of inflicting the penalty of death.” Lockett, supra, 438 U.S. at 603, 98 S.Ct. at 2964; Woodson, supra 428 U.S. at 304, 96 S.Ct. 2991.
The court then applied that principle to hold that:
“The Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital cases, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. We recognize that, in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes. The considerations that account for the wide acceptance of individualization of sentence in noncapital cases surely cannot be thought less important in capital cases. Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with a degree of respect due the uniqueness of the individual is far more important than in noncapital cases. A variety of flexible techniques — probation, parole, work furloughs, to name a few — and various post-conviction remedies may be available to modify an initial sentence of confinement in noncapital cases.
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DONALDSON, Chief Justice.
In 1981, Lacey M. Sivak and his co-defendant Randall Bainbridge were convicted of murdering an attendant at a gas station in Garden City, Idaho. He was also convicted of robbery and using a firearm in the commission of a felony. Sivak was sentenced to death. Sivak’s convictions and sentence were affirmed on appeal. State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), cert. den., 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984).
Sivak then filed his petition for post-conviction relief on September 24, 1984, alleging numerous points of error in proceedings leading to his conviction and sentence and their affirmance on appeal. After a hearing, the district court found Sivak’s arguments to be without merit and dismissed the petition.
Sivak now appeals and raises the following arguments based on both the United States and the Idaho Constitutions. We will address additional facts as they arise in the context of each issue below.
I
When the appeal of Sivak’s conviction and sentence came before this Court originally, we vacated the sentence and remanded the case to the district court to remedy a serious error that had occurred at the time the original judgment and sentence was imposed on the defendant. That error occurred when the district judge’s written findings of fact and conclusions of law were delivered to Sivak and his counsel without the benefit of an open court hearing. I.C. § 19-2503 and I.C.R. 43(a) require that a defendant’s sentence be given in open court with the defendant and his counsel present. We therefore ordered the district court to comply with the requirements of I.C. § 19-2503 and I.C.R. 43(a). In our order, issued May 24, 1983, we stated:
“NOW, THEREFORE, IT IS HEREBY ORDERED that the sentence of death imposed upon the defendant in the absence of the defendant [be] remanded to the Honorable Robert Newhouse, District Judge of the Fourth Judicial District of the State of Idaho, Ada County, who shall within fourteen (14) days from the date of this Order, in open court and in the presence of defendant and his counsel, enter a judgment of conviction and impose such sentence upon the defendant Lacey M. Sivak as to the said District Judge may appear to be just and appropriate. In the event that said Judge shall impose a sentence of death, a warrant therefor shall issue in accordance with I.C. § 19-2705; ...”
When we ordered resentencing we did not require the district court to consider additional information which may be relevant to the mitigation of the defendant’s sentence. At the time we issued our order we were unaware that any such evidence existed.
On April 4, 1983, the district court did convene a hearing in which the defendant and his counsel were present. At this hearing, Sivak’s counsel brought to the attention of the court evidence that during the year and a half since Sivak had originally been sentenced, Sivak exhibited very positive and productive behavior in prison, particularly with respect to his spiritual well being. Defense counsel moved to admit this additional mitigation evidence through testimony of several witnesses, and he moved to supplement the presentence report. These motions were denied from the bench and the trial court then proceeded to simply read into the record its original findings made when it imposed the death penalty in December of 1981. The court did permit Sivak himself to address [200]*200the court and have his own comments incorporated into the record. The court then restated its conclusions made in December of 1981 and resentenced Sivak to the same sentence.
Initially, we must point out that our intent in vacating Sivak’s sentence in our order of March 24, 1983, was not merely to require that the defendant and his counsel be physically present while the court recited its findings and conclusions made over a year before. Inherent in the order that the district judge “impose such sentence upon the defendant Lacey M. Sivak as to the said District Judge may appear to be just and appropriate,” was the obligation of the judge not to ignore any relevant motions or arguments made by the defendant or his counsel which would affect the justness and appropriateness of the sentence.
A review of the record and the precedent of the United States Supreme Court on the critical importance of mitigation evidence to the imposition of the death sentence, leads this Court to the inexorable conclusion that it was error of the district judge to refuse to hear, any of the defendant’s mitigation evidence offered at the April 4, 1983 hearing. We must, therefore, remand this case back to the district court once again for a resentencing that is consistent with the dictates of the defendant’s constitutional rights. Our conclusion today is based on the principles established in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) and their application in a context very similar to the present case in the case of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).
In Lockett, the United States Supreme Court reversed and remanded a death sentence because Ohio’s death penalty statute did not permit individualized consideration of a broad range of mitigating factors as required by the eighth and fourteenth amendments to the U.S. Constitution. The court reiterated the principle from Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), that “in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender” in addition to the circumstances of the particular offense “as a constitutionally indispensable part of the process of inflicting the penalty of death.” Lockett, supra, 438 U.S. at 603, 98 S.Ct. at 2964; Woodson, supra 428 U.S. at 304, 96 S.Ct. 2991.
The court then applied that principle to hold that:
“The Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital cases, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. We recognize that, in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes. The considerations that account for the wide acceptance of individualization of sentence in noncapital cases surely cannot be thought less important in capital cases. Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with a degree of respect due the uniqueness of the individual is far more important than in noncapital cases. A variety of flexible techniques — probation, parole, work furloughs, to name a few — and various post-conviction remedies may be available to modify an initial sentence of confinement in noncapital cases. The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence.” Lockett, supra 438 U.S. at 604-605, 98 S.Ct. at 2964-65. (Emphasis in original and added.)
[201]*201In Eddings, the Oklahoma capital sentencing statutes permitted the sentencing judge to consider “any mitigating circumstances” presented by the defendant, but the judge in that case refused to consider in mitigation the circumstances of the defendant’s unhappy upbringing and emotional disturbances.1 The Court stated, “[jjust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.” Eddings, supra 455 U.S. at 114-15; 102 S.Ct. at 876-77. The court then noted that the sentencing judge and the appellate court on review, “may determine the weight to given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.” Id. at 114-15; 102 S.Ct. at 877.
The Supreme Court concluded that the sentencing judge’s refusal to consider the defendant’s proffered mitigation evidence was in violation of the eighth and fourteenth amendments, and the law as established in Woodson and Lockett. Therefore, the case was remanded for resentencing and the court directed that “on remand, the state courts must consider all relevant mitigating evidence and weigh it against the evidence of the aggravating circumstances.” Id. at 117; 102 S.Ct. at 878.
In State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), cert. den., 465 U.S. 1051, 104 S.Ct. 1327, 79. L.Ed.2d 722 (1984), we held that “[t]he open ended allowance of mitigating evidence provides the defendant with the opportunity to present every possible justification for a sentence of less than death.” Id. 105 Idaho at 369, 670 P.2d at 729. We noted that such an unlimited mitigation provision as is provided under Idaho’s capital sentencing statute was approved in Eddings.
Both Lockett and Eddings established the vital importance of requiring the sentencer to consider any evidence proffered by the defendant which tends to mitigate against the justness or appropriateness of the death penalty for this particular defendant. We have long recognized that the concept of mitigation is broad. State v. Osborn, 102 Idaho 405, 415, 631 P.2d 187, 197 (1981). But now, we are squarely faced with a question whether a defendant’s conduct in prison can properly be considered as mitigation evidence when the sentencing judge decides whether the imposition of the death penalty on the defendant is more just and appropriate than incarceration. The principles laid down in Lockett and Eddings would suggest that such evidence is mitigation evidence and, therefore, must be considered by the sentencing judge. This conclusion has been firmly established by the recent case of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).
In Skipper, the Supreme Court vacated the defendant’s sentence because when it was imposed the trial court had excluded evidence from the sentencing hearing of the testimony of jailers and visitors. This evidence was offered by the defendant to establish as mitigating factors that the defendant had made a good adjustment during the seven and one-half months he spent in jail between his arrest and trial. The Supreme Court reaffirmed its holdings in Lockett and Eddings that in capital cases the sentencer must not be precluded from considering any relevant mitigating evidence that the defendant may proffer as a basis for a sentence less than death. Skipper, supra at-, 106 S.Ct. at 1671; Eddings, supra 455 U.S. at 110, 102 S.Ct. at 874, Lockett, supra 438 U.S. at 604, 98 S.Ct. at 2964. The court emphasized that “a defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sen-[202]*202tenting determination.” Id. 476 U.S. at -, 106 S.Ct. at 1672.2
The court explained,
“The only question before us is whether the exclusion from the sentencing hearing of the testimony petitioner proffered regarding his good behavior during the over seven months he spent in jail awaiting trial deprived petitioner of his right to place before the sentencer relevant evidence in mitigation of punishment. It can hardly be disputed that it did. The State does not contest that the witnesses petitioner attempted to place on the stand would have testified that petitioner had been a well-behaved and well-adjusted prisoner, nor does the State dispute that the jury could have drawn favorable inferences from this testimony regarding petitioner’s character and his probable future conduct if sentenced to life in prison. Although it is true that such inferences would not relate specifically to petitioner’s culpability for the crime he committed, there is no question but that such inferences would be ‘mitigating’ in the sense that they might serve ‘as a basis for a sentence less than death.’ Locket, supra [438 U.S.] at 604 [98 S.Ct. at 2964-65]. Consideration of a defendant’s past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing: ‘any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose.' Jurek v. Texas, 428 U.S. 262, 275 [96 S.Ct. 2950, 2958, 49 L.Ed.2d 929] (1976) (opinion of Stewart, Powell and Stevens, JJ.).” Skipper, supra 476 U.S. at-, 106 S.Ct. at 1671.
The high court concluded that evidence that a defendant would not pose a danger to society if spared (but incarcerated) must be considered potentially mitigating and, underEddings, such evidence may not be excluded from the sentencer’s consideration. Skipper, supra at-, 106 S.Ct. at 1672. Therefore, the case was remanded for resentencing with the caveat that “the state is, of course, not precluded from again seeking to impose the death sentence, provided that it does so through a new sentencing hearing at which petitioner is permitted to present any and all relevant mitigating evidence that is available.” Id. at-, 106 S.Ct. at 1673; Eddings, supra 455 U.S. at 117, 102 S.Ct. at 878.
Based on the high court’s reasoning in Lockett, Eddings and Skipper, we see no rational basis for distinguishing the mitigating evidence Sivak sought to introduce at his proper sentencing hearing on April 4, 1983, and the evidence the defendant sought to introduce at his sentencing hearing in Skipper.
We, therefore, must remand this case once more for proper consideration of all of Sivak’s relevant mitigating evidence. Without such evidence the sentencing judge cannot, as we ordered, truly impose on Sivak such sentence “as to the said District Judge may appear to be just and appropriate.” Upon resentencing, of course, the district judge will have to make new written findings as required by I.C. § 19-2515(e), which reads:
“Upon the conclusion of the evidence and arguments in mitigation and aggravation the court shall make written findings setting forth any statutory aggravating circumstance found. Further, the court shall set forth in writing any mitigating factors considered and, if the court finds that mitigating circumstances outweigh the gravity of any aggravating circumstance found so as to make unjust the imposition of the death penalty, the court shall detail in writing its reasons for so finding.”
Judge Newhouse’s failure to make new written findings after the April 4, 1983 hearing was due only to the fact that he deemed it unnecessary to consider any more of Sivak’s proffered mitigation evidence.
II
Five weeks after Sivak was sentenced, Judge Newhouse was interviewed by a reporter from The Idaho Statesman concerning his role as judge imposing capital punishment. An article which appeared in the January 27,1982 issue of The Idaho Statesman, reported:
“Newhouse said he received a lot of telephone calls and letters before and after he sentenced Sivak.
“ ‘It’s nice to know when the public goes along with me,’ he said. ‘I’m not sure the public is going along with me in the Sivak case, but I think it’s the right decision under the circumstances.’ ”
When Sivak filed his petition for post-conviction relief on September 28, 1984, he stated in Paragraph 7(H) that these communications had not been revealed to him or his counsel. On November 14, 1984, Sivak then filed a motion to disqualify Judge Newhouse from further participation in the post-conviction proceedings because the judge would be a material witness on Sivak’s claim delineated in Paragraph 7(H) of the petition. A copy of the article was filed with this motion.
At the hearing on this motion, Sivak’s counsel argued that the only reason that he wanted to call Judge Newhouse as a witness was to cross-examine him as to when the calls and letters were received, and their content.
Responding to Sivak’s arguments, Judge Newhouse said:
“There was no outside influence on my decision. I made my own decision. I enunciated it carefully. And for the record, whatever calls this might be, and I don’t remember the interview. They are all screened by the secretary. It brought no evidence in here at all other than one little newspaper article which is a statement of sentence out of context, I suspect. It doesn’t even say what you say it says.” (Tr., Vol. 3, p. 44.)
Sivak’s counsel subsequently moved to strike these comments from the record because counsel was not able to put the judge under oath or cross-examine him about them. This motion was denied. Sivak’s counsel then served a subpoena on the judge, but it was quashed on November 29, 1984. At that time, the judge stated:
“I think allowing that subpoena to be entered would just make a Roman circus out of these hearings. The only evidence that someone or something influenced my decision appeared to me to be only something fabricated in counsel’s head.
[204]*204“However, if he submits testimony in that regard, I would reconsider that position. I am not going to have these proceedings delayed another two years by bringing in another judge which would be required if I did allow you to cross-examine me and question me in this court. I would reaffirm for the record that there’s no question, I made my own decision. There is no question it was affirmed by the Idaho Supreme Court.” (Tr., Vol. 3, p. 66.)
Again, Sivak’s counsel moved to strike these remarks and that motion was again denied. The judge then said, “I would be very surprised if you find anything at all, but I am not going to get into this matter at all____ I am not going to be cross-examined.” The judge suggested that the statement in the newspaper was little more “than just hearsay and fabrication.” (Tr., Vol. 3, p. 69.)
When the trial under the Uniform Post-Conviction Procedure Act began on December 3, 1984, the first witness Sivak called was Gary Strauss, The Idaho Statesman reporter who had interviewed Judge New-house and wrote the January 27, 1982 article. Strauss described the meeting with the judge in his chambers and the discussion of the judge’s sentencing of Lacey Sivak. Strauss stated that he believed the article accurately reflected the conversation he had with Judge Newhouse, but Strauss had no recollection whether the judge revealed what the content of those calls and letters was.
In this appeal, Sivak emphasizes that Judge Newhouse has still not revealed to anyone from whom those letters and calls were received; nor has he revealed anything further on the content of those communications other than that they apparently related to the sentence imposed on Sivak. Sivak points out that the issue is not whether these communications influenced Judge Newhouse’s sentencing decision, but whether they should have been revealed to the defendant before sentencing. Since the sentencing process is a critical stage of a criminal proceeding, Sivak argues that Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), requires the sentencer to reveal such information to the defendant before sentencing. This requirement, he argues, is necessary to satisfy the requirements of the due process clause of the United States Constitution. We disagree.
In Gardner, the defendant was convicted of first degree murder and, after hearing the evidence on aggravating and mitigating circumstances, the jury returned an advisory verdict. It expressly found that the mitigating circumstances outweighed the aggrataving circumstances and advised the judge to impose a life sentence. While the jury was deliberating, however, the judge ordered a presentence investigation report. When the report was completed, the judge entered his findings and imposed the sentence of death. The judge stated that his conclusion was based in part on his review of the factual information in the presentence report. A confidential portion of that report, however, had not been disclosed to the defendant or his counsel.
A plurality of the United States Court vacated the defendant’s death sentence because it was based, in part, on the information in the presentence report which was not disclosed to the defendant or his counsel. The court ruled that the defendant should have been given the opportunity to explain or argue the accuracy of the information in the whole report. This was particularly important, the court noted, because the information in the whole report would and must be available for review on appeal as part of the total record. Gardner, supra at 361-62, 97 S.Ct. 1206.
Sivak argues that the holding in Gardner requires this Court to vacate his sentence and to order the district judge to disclose all information he received in the phone calls and the letters. While we consider it both prudent and equitably incumbent upon the judge to make such disclosures, we decline to apply Gardner so broadly as to mandate it as a matter of constitutional necessity in this case. The facts of Gardner are readily distinguish[205]*205able from the facts of the present case. Therefore, we find it unnecessary to base a vacation and remand of Sivak’s sentence on the principles laid down by Gardner.
Perhaps the most obvious distinction between the two cases is that the judge in Gardner purposefully requested the compilation of a presentence report so that he could consider the factual information contained therein; whereas the calls and letters received by Judge Newhouse were entirely unsolicited, and according to the article they apparently contained no more than an expression of personal opinions.4 Although it is always wise for a judge to screen his calls, this is not always possible. Nor is it feasible to expect his staff to open all of his personal mail. Judges do not live in a sterile environment and will inevitably be exposed to casual conversation, news reports, articles, etc., that may touch on the subject of the sentencing of a particular defendant. Attorneys know not to make ex parte communications to a judge on a case that he is deciding, but members of the general public do not and may pick up the phone and try to call the judge on the matter. If the judge answers his own phone, he cannot help but hear at least some of what his caller wants to tell him. Obviously, he must terminate the conversation as soon as he realizes its import and completely disregard it. “That judges are capable of disregarding that which should be disregarded is a well accepted precept in our judicial system.” Ford v. Strickland, 696 F.2d 804, 811 (11th Cir.1983) (cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1984) (citing Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 460, 464, 70 L.Ed.2d 530 (1981)).
Unlike the judge in Gardner, Judge Newhouse did not, and had no reason to, seek the information he may have been exposed to in those calls and letters. Also, unlike the judge in Gardner, Judge New-house did not base his decision in part on the information he may have received. We cannot, therefore, equate the official presentence report requested by the judge in Gardner with the completely unsolicited phone calls and letters Judge Newhouse apparently received in the present case. Much of the protection required by Gardner is already provided by our own I.C.R. 32(g) which mandates the disclosure of the presentence report to the defendant to “afford a full opportunity to present favorable evidence in his behalf during the proceeding involving the determination of sentence.” I.C.R. 32(g)(1). Gardner simply raises this rule to one of constitutional proportions.
We do not doubt that the unsolicited phone calls and letters were properly disregarded by Judge Newhouse when he made his sentencing decision. His comments on the record clearly indicate as much. We question, however, the propriety of his interview with the reporter on the subject of Sivak’s sentence. Judge New-house’s recollection that, in fact, he received such calls and letters relating to Sivak’s sentencing is certainly not surprising given the visibility of the case. However, since we are vacating Sivak’s sentence based on other grounds as noted in Part I above, on remand we direct Judge Newhouse to clear the air completely and state on the record what the factual content of those phone calls and letters were, if he can remember since they occurred almost five years ago.5 We do this based on the remote possibility that it will be of assistance to defense counsel as he prepares to put on his evidence in mitigation of sentence. We do so also as a reminder to the trial bench of this state that if any factual information reaches them which directly touches on their sentencing decision of a particular defendant, they have at least an obligation to disclose that fact to [206]*206the defendant to avoid even the appearance of impropriety.
If, in fact, Judge Newhouse recalls the content of the phone calls and letters he received and that content included factual information, by directing him to disclose that factual information at the resentencing hearing, we are not suggesting Judge Newhouse should be automatically disqualified from presiding over the resentencing or any other subsequent proceedings in this case in the district court. The judge would merely be revealing facts not unlike when he reveals the facts contained in a presentence report which he may have requested.
We completely reject Sivak’s invitation to adopt a rule that would inevitably result in the disqualification of a sentencing judge from the post-conviction proceedings for the same defendant. Whether a judge’s involvement in a case reaches a point where disqualification from further participation in a defendant’s case becomes necessary is left to the sound discretion of the judge himself. Based on the facts before us, we find no abuse of discretion on the part of Judge Newhouse in refusing to disqualify himself.
Ill
Sivak next argues that he is entitled to a new trial because he claims he was mislead by the prosecutor as to an agreement the prosecutor had with a key witness who testified to a jailhouse confession by Sivak.
The witness, Jimmy Dale Leytham, was one of two inmates at the Ada County jail who testified about incriminating statements which Sivak made to them. Leytham was being held in the same maximum security tier of the jail as Sivak, when Sivak was first arrested. At Sivak’s trial, Leytham testified that he and Sivak struck up a conversation while in the jail together in which Sivak apparently explained why he had killed his victim, and where he had disposed of the murder weapon. The prosecutor’s questioning of Leytham was as follows:
“Q. If you could now, Mr. Leytham, relate to the Court as clearly as you can recall what that conversation with Mr. Sivak was.
“A. Well, to begin with, I asked him why he shot her and stabbed her so many times.
“Q. What did he respond to that?
“A. He says because she kept on moving.
“Q. Okay.
“A. And I asked what happened to the knife handle. And he says, Well, they threw it in the river over by the fairgrounds.
“Q. Okay. Was there anything else that transpired with regard to that?
“A. He said he just — they used a .22.
“Q. Did you ask him what kind of gun was used?
“A. Yes.
"Q. Did he say what kind of a .22 it was?
“A. No.
“Q. Did you have any discussion with him regarding his motive for the act that you have described?
“A. Well, he used to work at the place, and—
“Q. Is this what he told you?
“A. Yes.
“Q. Okay. Go ahead.
“A. And that lady fired him.
“Q. Okay.
“A. And he said he holds grudges against people.”
The prosecutor then illicited testimony from Leytham as to the benefits he may have received from the state for testifying against Sivak:
“Q. Did you ask for any particular thing — any particular favoritism from State authorities with regard to your willingness to testify in this case?
“A. No.
“Q. Were you given some consideration in that regard?
“A. After — well, what do you mean by that?
“Q. Well, did my office or any other State agency do anything for you with [207]*207regard to your incarceration in the Ada County jail?
“A. After the preliminary hearing my escape got dismissed for me.
“Q. Okay. Anything else?
“A. I had a charge pending at Twin Falls, and that was dismissed, too.
“Q. Do you know whether or not my office had anything to do with that?
“A. I don’t know.
“Q. Anything else that you were given at that time?
“A. No.
“Q. What is your current status with regard to your incarceration?
“A. Well, right now I’m on parole.”
On cross-examination, defense counsel then conducted a detailed inquiry into Leytham’s criminal past: his 1978 burglary conviction, his 1979 conviction for writing checks with insufficient funds, his escape from the Cottonwood minimum security facility, his burglary in Idaho City, and his possible connection with a burglary in Twin Falls. Defense counsel skillfully impeached Leytham with this record and essentially got him to admit that when he was caught and put in the Ada County jail on his escape and burglary charges, he knew he was a “prime candidate” for the state penitentiary. Defense counsel then highlighted the fact that Leytham was free on parole after all this, leaving the clear impression that Leytham’s cooperation in Sivak’s case resulted in substantial beneficial treatment by the state on his own charges. Defense counsel also effectively impeached Leytham on his penchant for leaving out details or distorting facts when he testified earlier in his deposition and at the preliminary hearing, creating the impression that this was done to somehow impress the prosecutor.
Sivak now argues that at the post-conviction proceedings, an allegedly critical aspect of Leytham’s arrangement with the state to testify allegedly was revealed which had not been revealed at trial. Therefore, Sivak argues, his case was seriously prejudiced because his counsel was not afforded the opportunity to impeach Leytham on that arrangement. The testimony of the prosecutor, Jim Harris, however, on this matter was:
“Mr. Leytham had a long history of dealing with our office, or at least with Vaughn Killeen, an investigator with our office, on cases pending prosecution, both in and out of Ada County.
“Vaughn Killeen had used Mr. Leytham as essentially a jailhouse snitch on occasions prior to his coming forward with information similar to that of Mr. Grierson’s,6 regarding a conversation that Laytham had had with Lacey Sivak.
“And again, I relied on the investigators with regard to communicating with Mr. Leytham. I did not directly communicate with him, to the best of my recollection, although I might have discussed his testimony prior to trial with him.
“My position with regard to Leytham was essentially the same but I suppose somewhat different in that because Mr. Leytham had been dealing with the office on other cases, I realized that there was perhaps some confusion regarding what we would or would not do for him.
“I do recall specifically again informing Mr. Killeen and Mr. Pfeiffer that we would make no deals with Mr. Leytham regarding his testimony and would trade nothing with them regarding it, but that in fact we would consider his testimony with regard to other sentencing decisions we had to make regarding his cases later in the office.
“And to the best of my recollection, subsequent to his testimony, we did end up either reducing the charge or dismissing the charge pending against Mr. Leytham. But that, to the best of my recollection, was based as. much on his cooperation on other cases as it was on this case.
[208]*208“And it was never done on the basis of a deal. It was only done on the basis that we would give consideration to his testimony during any process which followed that testimony for purposes of considering his good faith and his good citizenship with regard to those pending charges.
“It was not my intent at the time of his testimony to do that. That was a consideration that was made significantly after that, and after, as a matter of fact, Mr. Leytham had testified in a trial or some proceeding back in [Kansas] regarding a murder case there that he was involved in or had some evidence regarding.
“And I would say at this point in time, that whatever considerations we made regarding him after his testimony was made probably more on the basis of other cases than it was on this case.
“We didn’t consider his testimony in this case as being all that important, frankly.”
Sivak argues that in this testimony, Harris contradicted the position he took at trial— that there was no agreement between Leytham and the prosecutor’s office for future lenient treatment in return for Leytham’s cooperation at the Sivak trial. This nondisclosure of the alleged agreement between Leytham and the state, Sivak argues, violated his constitutional right to a fair trial and due process of law and, therefore, must be remanded based on Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). We disagree.
It is clear from both Leytham’s testimony at trial and the prosecutor’s comments at the post-conviction proceeding that the state made no specific agreement with Leytham whereby his cooperation in Sivak’s case would result in future lenient treatment. Defense counsel knew that Leytham was involved as a witness for the state, both in Idaho and in Kansas, in several important prosecutions. It is also apparent that defense counsel knew that in the process of making decisions about other prosecutions against Leytham, the prosecutor would probably taken into account Leytham’s cooperation with the authorities in general. In fact, this was the main focus of defense counsel’s extensive cross-examination of Leytham at Sivak’s trial. Leytham was not as responsive to cross-examination as defense counsel would have liked, but this does not diminish the fact that defense counsel did have the full opportunity to impeach Leytham on his expectations of future lenient treatment.
We remain unconvinced that Sivak’s selective comparison of Leytham’s trial testimony and testimony by the prosecutor at the post-conviction hearing discloses the existence of a special agreement between Leytham and the prosecutor of which defense counsel was unaware. We can find no material evidence of such an agreement which has been suppressed by the state such that it represents a violation of Sivak’s constitutional rights. Because of the nature of post-conviction proceedings, the burden is on the petitioner to establish a constitutional violation. Bates v. State, 106 Idaho 395, 398, 679 P.2d 672, 675 (Ct.App.1984). We agree with the district court that Sivak has failed to meet this burden, and therefore, affirm.
IV
Sivak next argues that the two statutory aggravating circumstances enumerated under I.C. § 19-2515(g)7 as (g)(6) and (g)(7) are duplicative and should not have both been considered as separate aggravating circumstances by the district court at sentencing. Sivak further argues that the district court’s alleged “double counting” of defendant’s acts in finding that these two circumstances existed was prohibited by the cases of State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981) and State v. Caudill, 109 Idaho 222, 706 P.2d 456 (1985), and violates his constitutional right to a [209]*209fair sentencing trial and to be free from cruel and unusual punishment. We disagree.
The two aggravating circumstances in I.C. § 19-2515(g) at issue are:
“(g) The following are statutory aggravating circumstances, at least one (1) of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed:
“(6) By the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.
“(7) The murder wag one defined as murder of the first degree by section 18-4003, Idaho Code, subsections (b), (c), (d), (e) or (f), and it was accompanied with the specific intent to cause the death of a human being.”
In Osborn, we held that the construction of the aggravating circumstances in I.C. § 19-2515(g) must be limited. We then adopted for the aggravating circumstances in (g)(5) the limiting construction set forth by the Supreme Courts of Florida and Nebraska as they interpreted similar statutes in their jurisdictions. Osborn, supra 102 Idaho at 418, 631 P.2d at 200. See also State v. Dixon 283 So.2d 1 (Fla.1973), cert. den., 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974); State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977), cert. den., 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 reh. den., 434 U.S. 961, 98 S.Ct. 496, 54 L.Ed.2d 322 (1977). We also placed a limiting construction on the aggravating circumstances in (g)(6) by requiring that the phrase, “defendant exhibited utter disregard for human life,” must be viewed in reference to acts other than those set forth in I.C. § 19-2515(g)(2), (3) and (4). Osborn, supra 102 Idaho at 419, 631 P.2d at 201. In the direct appeal of this case, State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), cert. den., 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984), we emphasized that these limiting constructions placed on the statutory aggravating circumstances by Osborn were set forth only as a definitional aid to sentencing judges as they attempt to apply the circumstances to the particular facts of the case before them. Id. 105 Idaho at 907, 674 P.2d at 403. “There is no directive in either the statute or Osborn requiring a trial court to set out the specific language used in Osborn before this Court will uphold that court’s findings.” Id. Furthermore, we specifically held that Judge Newhouse’s findings in this case sufficiently comply with the standards set out in I.C. § 19-2515(g), Osborn, supra, and State v. Creech, 105 Idaho 362, 760 P.2d 463 (1983), cert. den., 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984).
In Caudill, we extended the conclusion of Osborn as to the limitations on (g)(6) to include its application in a case where a (g)(7) aggravating circumstance is found. Caudill, supra 109 Idaho at 230, 706 P.2d at 464. However, in extending the Osborn rationale to include (g)(7) as well as (g)(2), (3) and (4) we in no way revised the Osborn holding to mean that (g)(6) was now completely redundant because of the possibility that it may be interpreted as identical to other aggravating circumstances. The key to both Osborn and Caudill is the limiting construction on (g)(6) to vitiate the problem with potential overlap.
In Osborn we concluded that in (g)(6) the phrase “defendant exhibited utter disregard for human life,” is meant to be reflective of acts or circumstances surrounding the crime which exhibit the most callous disregard for human life, i.e., the cold-blooded, pitiless slayer. Osborn, supra 102 Idaho at 419, 631 P.2d at 201. Hence, these acts or circumstances that the judge must find beyond a reasonable doubt under (g)(6) must be acts or circumstances that exist in addition to those set forth in (g)(7). Logically then, a judge who has found evidence of a (g)(6) aggravating circumstance will have found evidence which would be additional to that evidence he finds to support a (g)(7) circumstance. The fact that he has found evidence of a (g)(7) circumstance and then gone on to find evidence of a (g)(6) circumstance would not be of any greater weight than if the judge [210]*210had found the same evidence and simply enumerated it all as a (g)(6) aggravating circumstance.
To a certain extent, the language we used in Caudill was imprecise when we stated that “[w]e consider it manifest that when one acts with the specific intent to cause the death of a human being as provided by factor [g](7), one necessarily exhibits an utter disregard for human life as provided for by factor [g](6).” Caudill, supra 109 Idaho at 230, 706 P.2d at 464. This holding was not meant to apply to all cases. Therefore, to the extent that the language in the final paragraph of the Caudill opinion is inconsistent with this opinion, we must narrow Caudill to bring it into conformity herewith.
Under I.C. § 19-2515, the sentencing judge needs to find only one statutory aggravating circumstance before he must sentence the defendant to death, unless the mitigating evidence outweighs the aggravating evidence. The relative weights of the various types of aggravating evidence will vary. But clearly, when evidence of one circumstance is subsumed as a subset of another — as evidence of a (g)(7) circumstance may often be subsumed within a (g)(6) circumstance or, for that matter, any other circumstance — that evidence is still the same and gains no additional weight simply because both (g)(6) and (g)(7) are cited as the aggravating circumstances. The weight comes from the evidence itself.
We have already determined in the direct appeal of this case that Judge New-house appreciated the fact that additional evidence must be found before a (g)(6) aggravating circumstance can be established beyond a reasonable doubt. There is no evidence that he gave these findings a greater weight because he initially found that at least a (g)(7) aggravating circumstance existed beyond a reasonable doubt. There was no double counting or double weighing. The weight comes from the actual factual evidence of both aggravating and mitigating circumstances and not the labels under which they are found to exist. Thus, if the judge finds evidence of a (g)(7) circumstance — which is often no more than what the jury has already found — and then finds other evidence which prompts him to find a (g)(6) aggravating circumstance because the defendant exhibited utter disregard for human life, the sentencing judge is simply weighing all the factual evidence that make up these circumstances whether or not he chooses to label them under (g)(7) or (g)(6), or both. It is against this factual evidence that he weighs the other factual evidence — namely the defendant’s mitigating evidence. All he needs to do is actually find one statutory aggravating circumstance based on this evidence before he begins this weighing process. He can also consider other evidence of aggravating circumstances in his balancing process, including evidence that fits no statutory definition, without having to label them under one or another subsection of I.C. § 19-2515(g). See State v. Sivak, 105 Idaho 900, 906, 674 P.2d 396, 402 (1983), cert. den., 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984); see also State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), cert. den., 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984).
The statute creates the threshold over which the judge must cross. Once across, whether he relies on other subsections of the statute or general nonstatutory language to illustrate additional aggravating evidence he has found is irrelevant as long as that evidence is indeed additional and not simply a repetition of the same. Since we are remanding this case for resentencing, if, in fact, Judge Newhouse did repeat the same evidence of aggravating circumstances to substantiate his finding of different statutory aggravating circumstances, his error has become harmless and moot because he will have the opportunity to make new findings with the benefit of new mitigating evidence and the benefit of both of our opinions in this case as well.
V
Sivak next raises the issue of double jeopardy by arguing that his conviction on the counts of both felony murder and rob[211]*211bery were in violation of I.C. § 18-301. He further alleges a violation of his right under the fifth and fourteenth amendments of the U.S. Constitution not to be twice put in jeopardy for the same offense. Since the robbery Sivak committed formed the basis for the felony as charged in the felony murder count, Sivak contends that his conviction for the robbery necessarily merged into his conviction for the felony murder as charged. Therefore, he argues, his conviction for robbery should have been vacated by the district court following his conviction for felony murder.
“The prohibition against double jeopardy has been held to mean that a defendant may not be convicted of both a greater and lesser included offense.” State v. Thompson, 101 Idaho 430, 433, 614 P.2d 970, 973 (1980). Therefore, the question to be addressed is whether, under the circumstances of this case, the robbery is a lesser included offense of felony-murder.
In State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979), this Court stated:
“An offense will be deemed to be a lesser included offense of another, greater offense, if all the elements required to sustain a conviction of the lesser included offense are included within the elements needed to sustain a conviction of the greater offense. Of course, the greater offense may require proof of additional elements in order to sustain a conviction.”
Id. at 114, 594 P.2d at 152.
The application of this test can result in two opposite conclusions depending upon whether the “statutory theory” or “indictment” or “pleading” theory is utilized. Under the statutory theory, “one offense is not included of another unless it is necessarily so under the statutory definition of the crime.” See State v. Thompson, supra 101 Idaho at 433, 614 P.2d at 973. (Emphasis added.) Utilizing this theory, the robbery would not be a lesser included offense of felony murder. According to the statutory language of 18-4003(d), a person does not necessarily have to commit robbery to be convicted of felony murder. The other enumerated felonies are available and, therefore, one need not always be required to commit robbery to get convicted of felony murder.
Idaho, however, seems to have adopted the broader indictment or pleading theory. Id. at 433-434, 614 P.2d at 973-74. This theory holds “that an offense is an included offense if it is alleged in the information as a means or element of the commission of the higher offense.” State v. Anderson, 82 Idaho 293, 301, 352 P.2d 972, 977 (1960). In other words, the issue is analyzed in reference to the facts of each case. In this case, Sivak was charged with robbery which was also the basis for the charge of felony murder. Applying the test set forth in McCormick, it is clear that all the elements required to sustain a conviction of robbery were also within the elements needed to sustain a conviction of felony murder. Thus, under these circumstances, robbery is a lesser included offense of felony-murder and, therefore, the robbery conviction merges as a lesser included offense of the felony murder conviction.
Our conclusion does not go unsupported. The United States Supreme Court, in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), found that a rape conviction merged with a felony murder conviction because “[a] conviction for killing in the course of rape cannot be had without proving all of the elements of the offense of rape.”8 Id. at 694, 100 S.Ct. at 1439, 63 L.Ed.2d at 725.
[212]*212Our decision in this case does seem to contradict the decision in State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963). In Hall, the defendant had robbed and murdered the victim. By the information, the murder was charged as deliberate and premeditated as well as felony-murder by way of robbery. The information did not separately charge Hall with robbery. Hall was acquitted of murder, and the prosecution then filed an information charging Hall with robbery. A conviction followed despite Hall’s claim of former jeopardy. On appeal Hall argued that the robbery charge was an included offense in the murder charge, and that he could have been convicted of robbery under the murder charge. Therefore, Hall argued that the second prosecution was barred by the prohibition against double jeopardy. The Court ruled that the murder information did not charge Hall with robbery and, that a conviction for robbery could not have been obtained under that information. The Court went on to hold that the murder and robbery were separate crimes and a prosecution for one did not bar a subsequent prosecution for the other. Finding that the robbery was not an included offense of murder, the Court stated the test to be: “An included offense is one which is necessarily committed in the commission of another offense; or one, the essential elements of which are, charged in the information as the manner or means by which the offense was committed.” Id. at 69, 383 P.2d at 608. (Emphasis added.) The Court then went on to say that the allegation that the homicide was committed while engaging in a robbery does not charge that the robbery was the manner or means by which the murder was accomplished, and that it was the gun that was the means by which the murder was committed. Therefore, interpreting the words “manner” and “means,” the Court ruled that robbery was not an included offense of murder.
We disagree with such reasoning. It is clear that the information charged Hall with first degree murder by means of committing a robbery and killing the victim in furtherance thereof. It was the elements of robbery that were necessary to commit felony murder in the Hall case. Additionally, we get a lesser included result if we use the test as the Court phrased in Hall as: “an included offense is one which is necessarily committed in the commission of another offense; or____” Using this language we find that the robbery was committed in the commission of the felony murder. In order to commit felony murder under the circumstances in Hall, a robbery had to be committed. Granted, it was the gun that was the means used to commit the homicide, but the fact remains that the felony murder statute requires a felony. We believe that the words “manner or means” under these circumstances refer to the conduct giving rise to the existence of statutory elements of the particular offense charged. In Hall, it was felony-murder, and the means of committing felony-murder was the conduct giving rise to the robbery and the murder.
Also, the Hall Court based its entire discussion on the premise that “murder may be committed without the commission of any of the felonies named in the statute ... [and that] the robbery was alleged only as a condition ... characterizing the murder as first degree.” Id. at 69, 614 P.2d at 608. The Hall court seemed to assign little importance to the degree of murder sought. To the contrary, people are charged with murder under various statutes. Each statute represents a degree and requires different elements. Therefore, analyzing the lesser included offense issue requires the court to look at the particular statutes relied upon by the prosecution. This, the Hall Court did not do. Based on the foregoing discussion, we overrule Hall to the extent Hall is inconsistent w'ith our holding in this case.
Our holding on this issue makes sense because without the robbery, the state would have received only a second degree murder conviction against Sivak. And with it, a much lighter punishment. However, [213]*213because of the robbery, the state sought and received a first degree murder conviction carrying a more severe penalty. Thus, Sivak, in essence, is being punished for the robbery by way of the punishment he received for the felony murder offense.
It is clear from the record that Sivak’s action in committing the robbery created liability under the robbery statute, I.C. § 18-6501, as charged in Count I, and was the underlying felony under the felony murder statute, I.C. § 18-4001, -4003(d), as charged in Count III. As a result, Sivak’s robbery conviction merged as a lesser included offense into his felony murder conviction as charged. Therefore, we must vacate Sivak’s robbery conviction and, on remand, direct the district court to dismiss it.
Because we base our determination on constitutional grounds, we need not determine if Idaho’s statutory prohibition against double jeopardy, I.C. § 18-301, was violated.
VI
Sivak next contends that at the original sentencing hearing, the district court erroneously permitted two witnesses to testify about things which were allegedly irrelevant to the aggravation of Sivak’s sentence. The two witnesses were: The victim’s husband who testified, among other things, about the detrimental impact of his wife’s murder on himself and his three children; and, a representative of the oil industry in Southern Idaho and Eastern Oregon who testified to the detrimental impact the murder had on personnel in self-service gas stations in the area, many of whom were women.
Sivak correctly notes that this testimony does not directly relate to the statutory aggravating circumstances enumerated in I.C. § 19-2515(g). However, as noted above, we have already held in the direct appeal of this case that where the district court has expressly found at least one of the statutory aggravating circumstances to exist beyond a reasonable doubt, it did not err in also considering evidence that is relevant only to nonstatutory aggravating circumstances. State v. Sivak, 105 Idaho 900, 906, 674 P.2d 396, 402 (1983), cert. den., 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984); see also State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), cert. den., 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984).
Although, based on the district judge’s written findings, this evidence had little, if any, impact on his sentencing decision, it is relevant to the appropriateness of the sentence to the defendant under the circumstances of this case. So long as the sentencing judge finds at least one statutory aggravating circumstance to exist beyond a reasonable doubt, his consideration of other relevant evidence in his weighing of aggravating and mitigating circumstances does not violate the defendant’s constitutional rights to due process of law, to a fair sentencing trial and to be free from cruel and and unusual punishment. Therefore, on remand for resentencing, we decline Sivak’s invitation to restrict the sentencing judge’s ability to hear such relevant evidence.
VII
At trial, Sivak was apparently taking pain medication prescribed by jail medical personnel. Although he consumed this medication as directed, Sivak argued at the post-conviction proceedings that it made his mind fuzzy and as a result he claims he is unable to recall very much of what went on during trial. Sivak contends he did not have the sufficient capacity to effectively consult with his attorney during trial. Therefore, he argues, his constitutional rights to a fair trial, to be present in the courtroom during trial and to confront and cross-examine witnesses were violated.
A review of the record of the civil proceedings on Sivak’s petition for post-conviction relief reveals that Sivak’s contentions are not uncontradicted. In fact, the state pointed out that Sivak had the presence of mind during trial to take notes sufficient to provide a clear recollection. Also, a physi[214]*214dan who had observed Sivak during the trial testified that he was familiar with the medication prescribed to Sivak and concluded that it would not have produced the type of symptoms that Sivak described.
The district judge, as a fact finder, could have fully believed the state’s evidence and completely disbelieved Sivak’s evidence. Fact finding is obviously the function of the trial court in post-conviction relief proceedings. We will not reverse those findings on appeal unless the appellant establishes that they are clearly erroneous. Clear error will not be deemed to exist if the findings are supported by substantial and competent, although conflicting, evidence. Rasmussen v. Martin, 104 Idaho 401, 404, 659 P.2d 155, 158 (Ct.App.1983). Since Sivak has been unable to establish the trial court’s findings are clearly erroneous, it is unnecessary for us to address the constitutional ramifications of Sivak’s evidence.
VIII
Sivak next argues that the trial court violated his constitutional rights when it made findings that Sivak claims were inconsistent with the jury’s verdict as to the premeditated nature of the murder. We have already reviewed this issue on direct appeal wherein we stated:
“The findings of the trial judge in sentencing are based not only on what he has heard during the trial, but also on the information he gathers from many other sources. A trial court’s duty to tailor a sentence to an individual defendant necessitates access to a wide range of information about the defendant. State v. Johnson, 101 Idaho 581, 618 P.2d 759 (1980). This is especially true in cases involving the possible imposition of the death penalty, wherein the United States Supreme Court requires that the sentence be determined according to the requirements of each individual case. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). The trial judge in the present case received an abundance of information during the sentencing portion of defendant’s trial concerning the character of the defendant and his possible inclination. The trial judge thus issued his findings based on his access to this broad range of information. The jury did not have access to the same amount of information in returning its verdict. Thus, the findings of the jury, and the findings of the trial judge, are not inconsistent; rather, they are based on different ranges of information. We see no error in the trial judge’s findings on this issue.” State v. Sivak, 105 Idaho 900, 907, 674 P.2d 396, 403 (1983), cert. den., 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984).
Indeed, the sentencing judge is entitled to consider a wide range of relevant evidence when he evaluates what the appropriate sentence for each particular defendant he sentences must be. Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980).
By couching this issue in somewhat different terms in the post-conviction relief proceedings, Sivak is suggesting that both the district court and this Court have perpetuated a violation of his constitutional rights to fair sentencing trial and not to be placed twice in jeopardy for the same offense. We disagree and continue to adhere to our previously stated view on this issue.
IX
Sivak finally argues that the trial court seriously erred when it considered statements by Sivak's co-defendant, Randall Bainbridge, which essentially put the full blame on Sivak for the crime. These statements were included in the presentence report. The use of the unsworn and uncross-examined statements of such a critical and incriminating witness, Sivak argues, violated his sixth amendment right to confront witnesses against him. We recognize that had any part of Bainbridge’s statement been admitted at Sivak’s jury trial, Sivak would have been able to fully cross-examine Bainbridge and perhaps, thereby completely discredit him. This [215]*215guilt phase of Sivak’s trial obviously is a critical stage of the criminal proceedings against him. We also recognize, as stated in Part II of this opinion, that the U.S. Supreme Court has required that the contents of a presentence report in a capital case must be revealed to the defendant so that he may have the opportunity to explain or argue the accuracy of the information contained in that report. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). The question now arises whether a defendant in a capital case should be afforded the constitutional right to confront and cross-examine live witnesses against him at the. sentencing phase of his trial.
We answer that question in the negative and thereby continue to adhere to the position of the U.S. Supreme Court. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). The justification for the refusal to completely extend the procedural protections of the sixth amendment to the sentencing phase is based, in part, on the belief that modern penological policies, which favor sentencing based on the maximum amount of information about the defendant, would be thwarted by restrictive procedural and evidentiary rules. Id. at 246-50, 69 S.Ct. 1082-84. Because the death penalty, unlike other punishments, is permanent and irrevocable, the U.S. Supreme Court has brought into play constitutional limitations at the capital sentencing phase to minimize the risk of arbitrary decision making. This is best exemplified in the Supreme Court’s decisions in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), as we have discussed earlier in Part I, and the Gardner case discussed in Part II. Unlike the Eleventh Circuit in Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir. 1982), however, the U.S. Supreme Court has not extended the full scope of constitutional protections provided to a defendant at the guilt phase of his trial to the sentencing phase in a capital case. We find in Gardner the implication that for sentencing purposes, the full disclosure of information provided to a sentencer in a presentence report is sufficient to protect a capital defendant’s interests. He need not have the actual live witnesses whose statements are contained in the report present at the sentencing hearing so long as he is afforded the opportunity to explain and to argue the veracity of those statements before the sentencing judge. State v. Yoelin, 94 Idaho 791, 793-94, 498 P.2d 1264, 1266-67 (1972).9
In State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), we held that the U.S. Constitution does not mandate that a sentencing decision be made on the basis of live testimony. Id. at 365, 670 P.2d at 466. Furthermore, we upheld the use of the presentence report over the defendant’s objection that it contains hearsay testimony. Id.; see also State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981). Sivak argues, however, that our ruling in Creech relates only to witnesses whose testimony is not “critical.” In other words, he contends, we should hold that the sixth amendment right to confront and cross-examine live witnesses should apply when “critical” testimony is presented at a capital sentencing proceeding. This is apparently a middle ground between the current U.S. Supreme Court position and a position of the Eleventh Circuit in Proffitt, supra, based on the nature of the testimony presented at [216]*216sentencing. However, not only is Sivak interpreting Creech unreasonably narrowly, but his distinction between “critical” and “non-critical” testimony is unworkable. Whose testimony should be deemed “critical” and at what phase of the defendant’s trial? What may be deemed critical to the judge or jury at the guilt phase of a trial may not be critical at the sentencing phase and vice versa. Furthermore, whether a statement will have a critical impact on the sentencing judge is often not possible to determine until after all the information has been presented and the judge begins to formulate his findings and conclusions.
Therefore, we continue to adhere to our ruling in Creech and the position of the United States Supreme Court that the sixth amendment to the United States Constitution does not require that a capital defendant be afforded the opportunity to confront and cross-examine live witnesses in his sentencing proceedings. We affirm the district court’s post-conviction ruling on this issue.
CONCLUSION
For the reasons stated above, we find it necessary to vacate Sivak’s sentence and remand this case for proper sentencing consistent with this opinion. Had we not found it necessary to remand this case for resentencing based on the analysis in Part I, we would not have addressed many of the issues discussed in subsequent parts of this opinion. Since those issue were or should have been raised on direct appeal. We addressed all of the issues relating to Sivak’s sentencing to provide guidance for the district judge as he re-determines the appropriate sentence to be imposed on Sivak consistent with this opinion and our opinion on direct appeal. We express no opinion as to what the appropriate sentence on re-sentencing might be.
If the sentencing judge determines that the death penalty is the appropriate sentence, it shall be administered consistent with I.C. § 19-2716.10 The preferred method of execution is by lethal injection and, despite Sivak’s arguments to the contrary, we see no reason why such a method would be impractical in this case, particularly in light of its successful use in many other states. Therefore, we express no opinion as to Sivak’s claim that the contingency method of execution by firing squad constitutes cruel and unusual punishment in violation of the eighth amendment to the United States Constitution.
No costs or attorney fees on appeal.
Related
Cite This Page — Counsel Stack
731 P.2d 192, 112 Idaho 197, 1986 Ida. LEXIS 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sivak-v-state-idaho-1986.