State v. Kaiser

681 P.2d 594, 106 Idaho 501
CourtIdaho Court of Appeals
DecidedJune 13, 1984
Docket13711
StatusPublished
Cited by16 cases

This text of 681 P.2d 594 (State v. Kaiser) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kaiser, 681 P.2d 594, 106 Idaho 501 (Idaho Ct. App. 1984).

Opinions

SWANSTROM, Judge.

On the night of August 22, 1979, John Dorcheus, a bouncer at the Bouquet Bar in Boise, was approached by one of the waitresses. She complained that a friend of his, defendant Michael Kaiser, was bothering her. Kaiser, who had been drinking heavily that afternoon and evening, took offense to Dorcheus’ request that he leave the bar. While being escorted out, Kaiser suddenly struck Dorcheus in the head, knocking him to the floor unconscious. Another bouncer stepped up to hustle Kaiser from the premises. The police arrived during the ensuing struggle.

In the meantime, Dorcheus had recovered from the blow and effected a citizen’s arrest of Kaiser charging him with battery. After receiving medical treatment for minor injuries, Kaiser was taken to the county jail and booked. A few minutes later he posted bond and was released. After the bar closed, Dorcheus went home with some of his co-workers to “let off steam,” as was their custom. It was not long, however, before Dorcheus was alone with his roommate. As they talked in the early morning hours, Kaiser came in through the open front door. Words were exchanged and [502]*502Dorcheus leapt to his feet and began to grapple with Kaiser, who was then holding a loaded .32 caliber semi-automatic pistol. A shot was fired; then two more. At this point the roommate hurriedly left the scene. He later testified that he heard two more shots as he rushed out.

When the police arrived, they found Dorcheus dead, shot four times. The next day, Kaiser, who had driven to California immediately after the shooting, turned himself in. He was charged with first degree murder, I.C. § 18-4003, and with using a firearm during the commission of that murder, I.C. § 19-2520. Following a jury trial he was convicted of second degree murder and sentenced to an indeterminate life term. I.C. § 18-4004. The jury also found that Kaiser did in fact use a firearm in the commission of the murder and the district court therefore gave him an additional fifteen-year indeterminate sentence, to run consecutively to the first sentence. I.C. § 19-2520. Kaiser appeals, contending that the district court abused its discretion in pronouncing these sentences.

In view of Kaiser’s contention that his sentences were excessive and were an abuse of discretion, we must consider whether an indeterminate sentence for a term “not to exceed life imprisonment” can be enhanced by an additional consecutive term under I.C. § 19-2520. To our knowledge this question has not previously been decided in Idaho.

The statute provides in part:
Any person convicted of [one of the enumerated offenses] who carried, displayed, used, threatened, or attempted to use a firearm while committing the crime, shall, in addition to the sentence imposed for the commission of the crime, be imprisoned in the state prison for not less than three (3) nor more than fifteen (15) years. Such additional sentence shall run consecutively to any other sentence imposed for the above cited crimes.

In construing § 19-2520 our Supreme Court has held that the carrying of a firearm during the commission of a felony is not a separate crime nor does it fix a mandatory sentence for such an act. “Rather, in scope and application, I.C. § 19-2520 can be analogized to the habitual offender statute.” State v. Cardona, 102 Idaho 668, 670, 637 P.2d 1164, 1166 (1981) (footnote omitted); see also State v. Smith, 103 Idaho 135, 645 P.2d 369 (1982). “The legislature has clearly said that any person convicted of certain crimes while carrying, displaying, using, threatening, or attempting to use firearms while committing the crime shall have their sentence for the crime enhanced.” State v. Thompson, 101 Idaho 430, 439, 614 P.2d 970, 979 (1980) (Shepard, J., concurring and dissenting). To “enhance” simply means to make greater; it is synonymous with “increase.” BLACK’S LAW DICTIONARY 475 (5th ed. 1979). Thus, the total punishment, by imprisonment, for an enumerated crime committed with a firearm may exceed, by as much as fifteen years, the maximum punishment for the same crime committed without the use of a firearm.

In spite of the mandatory language of § 19-2520, it is obvious that an enhanced sentence need not be given in every case covered by the statute. Taken literally, § 19-2520 would require a district judge to impose an additional term of not less than three years even where the underlying sentence might be the death penalty. This would be a meaningless application of the statute. It likewise would be a useless act to enhance a fixed life sentence where there is no possibility of parole.

We also find it conceptually difficult to apply the enhancement provisions to a sentence calling for an indeterminate life imprisonment. A sentence to the custody of the Board of Corrections for a term not to exceed life terminates only upon the death of the inmate or by a pardon granted by the Commission of Pardons and Parole. A sentence is not terminated by parole. When an inmate is released on parole his sentence continues until it terminates by operation of law or until the Commission of Pardons and Parole grants a final discharge to a person on parole prior to the expiration of the sentence. I.C. § 20-233. [503]*503The Commission of Pardons and Parole also has authority to change a sentence through its power of commutation, to one that is less severe. Commutation, however, results in a sentence different than the one imposed by the court.

We recognize that the district judge here thought that by adding the fifteen-year “enhancement” sentence he would be increasing, from ten years to fifteen years, the minimum time that Kaiser would have to serve before parole. He concluded that under the life sentence Kaiser would serve a minimum of ten years, as mandated by I.C. § 20-223. He assumed that, in addition, Kaiser would be required to serve one-third of the fifteen-year enhancement sentence. It could be argued that the legislature intended that § 19-2520 would increase the minimum time a prisoner would have to serve before parole eligibility. It will have that effect in some cases. However, such an intent is not expressed in the statute.

We are unable to construe the statutes in the manner envisioned by the district court. To do so would produce capricious results in some cases. For example, a prisoner who received an indeterminate term of forty years imprisonment for second degree murder would be eligible for parole in ten years. I.C. § 20-223. Another prisoner who received a thirty-year indeterminate term for the same crime, enhanced by an additional ten years, would have to serve thirteen and one-third years before becoming eligible for parole, following the theory of the court below.

In fact, there is nothing in § 19-2520 that would require one-third of the enhancement sentence (if treated as a separate sentence) to be served before parole eligibility. The same can be said about I.C. § 20-223, our general parole eligibility statute. On the other hand, companion statutes to § 19-2520, sections 19-2520A, -2520B and -2520C, all contain restrictions against early release on parole where these enhancement provisions are applicable. The companion statutes carry a different import.

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State v. Kaiser
681 P.2d 594 (Idaho Court of Appeals, 1984)

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Bluebook (online)
681 P.2d 594, 106 Idaho 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kaiser-idahoctapp-1984.