State v. Lindquist

589 P.2d 101, 99 Idaho 766, 1979 Ida. LEXIS 369

• Court: Idaho Supreme Court
• Decided: January 11, 1979
• Docket: 12218
• Status: Published

Opinions

BAKES, Justice.

In January of 1976 a jury convicted defendant appellant Phillip Lewis Lindquist of the first degree murder of Joy Weitz in January of 1975. In February of 1976 the district court sentenced the defendant to death pursuant to the version of I.C. § 18-4004 then in effect, which provided “[e]very person guilty of murder in the first degree shall suffer death . . . Ch. 276, § 2, 1973 Idaho Sess.Laws 588. In this appeal the defendant challenges only his sentence, and this on constitutional grounds.

Subsequent to the defendant’s sentencing, the United States Supreme Court decided Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), which held unconstitutional a North Carolina mandatory death penalty statute virtually identical to the Idaho statute under which this defendant was sentenced. See Woodson v. North Carolina, supra at 286, 96 S.Ct. 2978. The version of I.C. § 18-4004 in effect at the time the defendant was sentenced was unconstitutional under the holding of the United States Supreme Court in the Woodson case and the defendant’s death sentence must therefore be set aside. The more difficult issue presented here is whether on resentencing the death penalty may be imposed on this defendant.

There is some authority for the proposition that when a statute is determined to be unconstitutional the former statute remains in effect as if it had never been amended. See American Independent Party in Idaho, Inc. v. Cenarrusa, 92 Idaho 356, 442 P.2d 766 (1968). However, the former statute is of no help in this case since it likewise was constitutionally defective. Prior to its amendment in 1973, I.C. § 18-4004 provided:

“Every person guilty of murder in the first degree shall suffer death or be punished by imprisonment in the state prison for life, and the jury may decide which punishment shall be inflicted.”

See ch. 276, § 2, 1973 Idaho Sess.Laws 588. Though this pre-1973 statute permitted the imposition of either a sentence to death or life imprisonment, it provided no guidance to control the sentencing authority in determining who would receive the death penalty and who would receive a sentence of life imprisonment. Therefore unquestionably the pre-1973 statute violated the Eighth and Fourteenth Amendments to the United States Constitution under the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Neither is the fact that the legislature, subsequent to the defendant’s crime, conviction and sentencing, has again amended I.C. § 18-4004 of any assistance here. In 1977 the legislature amended I.C. § 18-4004 by providing that “[sjubject to the provisions of 19-2515, Idaho Code, every person guilty of murder of the first degree shall be punished by death or by imprisonment for life.” Ch. 154, § 3,1977 Idaho Sess.Laws 390. I.C. § 19-2515 was at the same time amended to require judicial inquiry into aggravating and mitigating circumstances and a finding that at least one of ten enumerated aggravating circumstances existed in order to impose a sentence of death. Ch. 154, § 4, 1977 Idaho Sess.Laws 390. I.C. § 19-2827, which requires review by the Idaho Supreme Court of any death sentence and delineates standards for that review, was also added to the Idaho Code. Ch. 154, § 5, 1977 Idaho Sess.Laws 390.

These statutes cannot be applied to this defendant. While the statutes were amended in 1977, the crime of which this defendant was tried and convicted in 1976 was committed in 1975. The legislature itself has declared that its acts are not to be applied retroactively unless expressly so declared. I.C. § 73-101; Edwards v. Walker, 95 Idaho 289, 507 P.2d 486 (1973). The 1977 act contains no such declaration, but specifically provides that it “shall be in full force and effect on and after passage and approval.” It was approved March 28, 1977. Ch. 154, § 8, 1977 Idaho Sess.Laws 390.

This Court has recently had occasion to consider a similar issue in Wolf v. State, 99 Idaho 476, 583 P.2d 1011 (1978). With reference to an amendment of the statute setting forth the factors to be considered by the courts in deciding whether to waive jurisdiction under the Youth Rehabilitation Act, I.C. §§ 16-1801 to -1845, Chief Justice Shepard wrote: “Since this statute was enacted after the murder of Mr. Flory, the ex post facto clauses of the Idaho and federal Constitutions prohibit us from applying it to these appeals.” 583 P.2d at 1015. See Idaho Const., art. 1, § 16; U.S.Const., art. 1, §9.

We are aware that under the United States Supreme Court’s recent decision in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), it is at least arguable that the provisions of the 1977 act may be applied to this defendant without violating the ex post facto clause of the United States Constitution. In Dobbert the United States Supreme Court upheld the imposition of a death sentence on a defendant who was tried and sentenced under a valid capital punishment statute even though that statute was not in effect at the time the crime was committed. In Dobbert the amendment to the statute came after the act, but before trial. 432 U.S. at 288-89, 97 S.Ct. 2290. However, unlike the circumstances in Dobbert, the defendant Lindquist was sentenced pursuant to an unconstitutional capital punishment statute. The 1977 amendments, under which the state has argued that the defendant should be resentenced, went into effect a year after the defendant brought this appeal. At least two courts have concluded that this factual distinction with Dobbert is decisive and therefore have refused to order defendants convicted and sentenced under prior constitutionally defective statutes resentenced under new statutes. Meller v. State, 581 P.2d 3 (Nev.1978); State v. Rodgers, 242 S.E.2d 215 (S.C.1978). However, we need not decide whether Dobbert is applicable to the circumstances of this case or whether the ex post facto clause of the Idaho Constitution requires a different interpretation. Well established principles of constitutional law dictate that we not unnecessarily reach those constitutional issues. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Poesy v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977). Here, our statutes themselves clearly prohibit the retroactive application of the 1977 statute to this defendant. I.C. § 73-101.

The state argues that we should construe the statute under which the defendant was sentenced in such a way that it passes constitutional muster. Both the state in its briefs and argument, and the dissenting opinion of Chief Justice Shepard, point out that the Court of Criminal Appeals of the State of Texas in the case of Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App. 1975), interpreted their statute to permit the sentencing authority to consider any mitigating circumstances which the defendant might present. In turn, the Supreme Court of the United States affirmed the imposition of the death penalty in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), based upon the Texas court’s authoritative construction of their murder statute. However, there is a substantial difference between the Idaho statute applicable to this case, and the Texas statute in Jurek. The Idaho statute cryptically provides that “[ejvery person guilty of murder in the first degree shall suffer death,” whereas the Texas statute provided that after a determination that a defendant is guilty of murder with malice, the jury, in a separate proceeding, may impose either the penalty of life or death, depending upon a consideration of three questions, one of which was whether or not “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” The Texas court in Jurek held that this statutory authorization allowed the sentencing authority to consider mitigating as well as aggravating circumstances in determining whether to impose on a defendant a sentence of life or death. Obviously there is a very real distinction between the Texas and Idaho¹ statutes, and it is the Idaho statute by which we are bound. To construe our Idaho statute as the Texas court has construed its statute would require that we ignore the manifest legislative intent that the death penalty be the mandatory punishment for first degree murder. To do so would require that we rewrite substantive statutory law. The California court, recently presented with much the same argument, concluded:

“The People argue finally that the defects in the California statutory scheme for imposition of capital punishment can be overcome by judicially mandated procedures, which this court should pronounce because the Legislature intended to write a constitutional death penalty. . We decline the People’s invitation. They ask us not to interpret, but to rewrite the law in a manner which we have shown would be contrary to the manifest legislative intent in enacting [a mandatory death penalty statute]. Decisions as to which criminal defendants shall suffer the death penalty, whether these decisions shall be made by judge or jury, whether and to what extent a jury determination is reviewable by the trial court and/or the reviewing court, and the scope of responsibility to be given this court to safeguard against arbitrary imposition of the death penalty are matters of legislative concern. Were this court to attempt to devise the necessary procedures and criteria we would not only invade the legislative province, but would also be in the position of having to pass objectively on the constitutionality of procedures of our own design.” Rockwell v. Superior Court, 18 Cal.3d 420, 134 Cal. Rptr. 650, 665, 556 P.2d 1101, 1116 (1976).

Accord, French v. State, 362 N.E.2d 834 (Ind.1977); Kennedy v. State, 559 P.2d 1014 (Wyo.1977). Likewise, what the state asks this Court to do is not interpret but, under the ruse of judicial construction, to rewrite the 1973 statute to read like the 1977 statute. We simply do not have the power to rewrite substantive statutory law. See Newlan v. State, 96 Idaho 711, 716, 535 P.2d 1348, appeal dismissed sub nom. Agost v. Idaho, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975); Anstine v. Hawkins, 92 Idaho 561, 447 P.2d 677 (1968).

The argument that the Idaho first degree murder statute imposing the death penalty can be construed by this Court to make it constitutional is subject to another infirmity. Such a retroactive construction, if applied to the facts of this case, poses serious ex post facto problems under Art. 1, § 9, of the United States Constitution and Art. I, § 16, of the Idaho Constitution. Wolf v. State, 99 Idaho 476, 583 P.2d 1011 (1978); Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Cf. Dobbert v. Florida, supra (sentence imposed pursuant to Florida death penalty statute enacted subsequent to the crime but prior to sentencing held not to violate the ex post facto clause of the United States Constitution). As the Supreme Judicial Court of Massachusetts stated in Commonwealth v. Harrington, 323 N.E.2d 895 (Mass.1975):

“Apart from what seem like clear instructions to us from the United States Supreme Court, a retroactive legislative change from discretionary to mandatory death sentence would be an unconstitutional ex post facto law. United States Constitution, art. 1, § 10. Declaration of Rights of the Massachusetts Constitution, art. 24. [Citations omitted]. An unforeseeable judicial decision having the same effect is equally barred by the due process clause. Bouie v. Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).” 323 N.E.2d at 900.

It has also been argued that, regardless of the language of the Idaho statutes, the trial court here concluded that he was not obligated to follow the Idaho statute mandating the death penalty and that he did in fact consider aggravating circumstances and offered defendant the opportunity to present evidence of mitigating circumstances. Therefore, it is argued we should affirm the judgment of the trial court. It is true that the trial court did state that he was approaching the sentencing in this case on two bases — one that he had no discretion and was mandated by the statute to impose a death penalty, and the other, that under the decision of this Court in State v. McCoy, 94 Idaho 236, 486 P.2d 247 (1971), he had inherent judicial discretion and therefore could impose a sentence other than death. However, a careful reading of the transcript shows that, while the trial court so stated that he was proceeding with sentencing “on the theory of [these] two bas[e]s,” it is abundantly clear that he was of the opinion that McCoy had been incorrectly decided and that it had no validity and should not be followed. Accordingly, we are not persuaded that the trial court, in imposing sentence, was not influenced by his own strongly expressed opinion that the McCoy case did not and could not abrogate the automatic death penalty mandated by the Idaho statute.

Our decision does not mean, however, that the defendant should entirely escape punishment for the crime of which he stands convicted. When the defendant was found guilty of first degree murder, he was necessarily found guilty of the lesser included offense of second degree murder. State v. Hutter, 145 Neb. 798, 18 N.W.2d 203 (1945); see State v. Arney, 218 Kan. 369, 544 P.2d 334 (1975). At the times when the crime was committed and the defendant convicted and sentenced, the punishment for the included offense of second degree murder was “not less than ten years and the imprisonment may extend to life.” I.C. § 18 — 4004; ch. 276, § 2, 1973 Idaho Sess. Laws 588. Accordingly, the sentence of death must be vacated and the cause remanded to the district court for resentencing to any punishment permitted for the conviction of the lesser included offense of second degree murder.

Although this case presents a question of first impression for this Court, this question has frequently arisen in our sister states as a result of the United States Supreme Court’s decisions concerning death penalty statutes. We believe our decision here is supported by the collective wisdom of virtually ever other court which has confronted this issue:

“This is not the first time that decisions of the United States Supreme Court have invalidated Louisiana provisions relative to capital punishment. In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and again in Furman v. Georgia, supra, Louisiana statutes were effectively invalidated. Each time this Court was called upon to resolve the question of sentencing defendants validly convicted but unconstitutionally sentenced to death. In each case we instructed the trial courts to substitute life imprisonment for the death sentence.” State v. Jenkins, 340 So.2d 157, 179 (La. 1976).

See, e. g., Boyd v. Commonwealth, 550 S.W.2d 507 (Ky.1977); Smith v. State, 349 So.2d 1244 (La.1977), appeal dismissed, 435 U.S. 920, 98 S.Ct. 1480, 55 L.Ed.2d 513 (1978); State v. Rondeau, 89 N.M. 408, 553 P.2d 688 (1976); State v. Rumsey, 267 S.C. 236, 226 S.E.2d 894 (1976); Collins v. State, 550 S.W.2d 643 (Tenn.) cert. denied sub nom. Morgan v. Tennessee, 434 U.S. 905, 98 S.Ct. 303, 54 L.Ed.2d 192 (1977); Kennedy v. State, 559 P.2d 1014 (Wyo.1977).

We are not unmindful of the apparent will of the people of this state that the death penalty be imposed on the perpetrators of murders of the most abominable and depraved kind. We have not recited the gruesome details of this crime, but it is sufficient to note that this defendant certainly falls within that classification. Nonetheless, the irrefutable fact remains that at the time this crime was committed and the defendant was tried, convicted and sentenced there was no valid death penalty statute. This fact, which will surely be described as a loophole, is largely the consequence of the legislature’s understandable and excusable failure to divine beforehand how the United States Supreme Court in Woodson would read its own rather confusing decision in Furman. Nonetheless, the principles of law to which we must necessarily adhere today are the same principles which preserve this Court as an institution of justice according to the law — not according to the whims or visceral feelings of judges — and which protect every citizen of this state and nation from the peril of arbitrary and unbridled legislative and judicial power.

The sentence is set aside and the case remanded for resentencing in accordance with this opinion.

McFADDEN and BISTLINE, JJ., concur.

1 . A recent Arizona decision, State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), must likewise be distinguished. In Watson the Arizona court ruled that a provision of the Arizona death penalty statute which restricted the mitigating circumstances the sentencing court could consider was unconstitutional under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The Arizona court, however, ruled that the provision was severable from the other portions of the Arizona death penalty and ordered that the defendant be resentenced and that he be allowed to present to the sentencing judge any mitigating circumstances. Unlike the provision of the Arizona statute which expressly contemplated sentencing discretion, the mandatory death provision of the 1973 Idaho statute is the very essence of that statute, and therefore the sever-ability approach of the Arizona court in Watson is no answer to the constitutional defect in the Idaho statute.