State v. Osborn

663 P.2d 1111, 104 Idaho 809, 1983 Ida. LEXIS 450

• Court: Idaho Supreme Court
• Decided: May 26, 1983
• Docket: 14333
• Status: Published

Opinions

HUNTLEY, Justice.

The procedural background and facts of this case are contained in this court’s decision in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981). In Osborn I this court reviewed the imposition of the death penalty on Osborn for first degree murder and remanded the case for resentencing in conformance with its opinion. Resentencing was held on August 25, 1981. At that time appellant’s request for a de novo resentencing hearing was denied. After considering argument of counsel, the court sentenced the defendant to a fixed life term of imprisonment. This appeal followed. The sole issue on appeal is whether the trial court abused its discretion in imposing a fixed life term.

Because of the gravity of the sentence imposed, a brief review of the facts is appropriate.

On October 31, 1978, the partially clothed body of Christine Carl was found, along a road on the outskirts of Pocatello. She had been shot three times in the head, once in the shoulder, and once in the abdomen. Her face showed extensive bruising on the left side, and her nose was fractured. The pathologist stated that the large amount of blood loss would indicate that the victim’s nose had been broken prior to her being shot. The pathologist believed the bullet wound behind the victim’s ear was a close contact wound While the other head wounds were probably distance wounds, although he stated it was possible that they could have been incurred within eighteen inches of the firearm. He also stated that the beating could have occurred prior to the shooting, but noted that this was conjectural, as the same bruising could have occurred had the beating occurred simultaneously with the shooting.

The police discovered a revolver at the house where Osborn was arrested. An F.B.I. report stated that due to similarity of rifling marks, the gun could have been the murder weapon. The report also stated that since the gun had some missing parts, the cylinder of the gun had to be manually rotated before the following round could be fired. A witness testified that in October 1978 he sold Osborn a revolver of the type discovered at the house where Osborn was arrested. He noted that at the time of the sale a part was missing which made it necessary to rotate the cylinder by hand between shots to position the next live round.

At the resentencing hearing the trial court relied on the record created in the Osborn I aggravation/mitigation hearing. As a result of that hearing the court found the following two aggravating circumstances existed beyond a reasonable doubt:

(1) “that the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity,” and

(2) “that by the murder and the circumstances surrounding its commission, the defendant exhibited utter disregard for human life.”

The court also found, but only by a preponderance of the evidence, the aggravating circumstance that appellant, “by prior conduct and his conduct in the commission of the murder, has exhibited a propensity to commit murder and will probably constitute a continuing threat to society.”

Sentencing is committed to the discretion of the trial court and defendánt has the burden of showing an abuse of that discretion. State v. Olsen, 103 Idaho 278, 647 P.2d 734 (1982); State v. Delin, 102 Idaho 151, 627 P.2d 330 (1981). A sentence fixed within the limits prescribed by the statute will ordinarily not be considered an abuse of discretion by the trial court. State v. Nice, 103 Idaho 89, 645 P.2d 323 (1982); State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967). The penalty for first degree murder is death or imprisonment for life. I.C. § 18-4004. The sentence imposed in this case is therefore within the statutory limits proscribed by the legislature.

Reasonableness is a fundamental requirement in sentencing and this court must examine the circumstances of each case to determine whether the punishment imposed is excessive. State v. Nice, supra.

An examination of the record in this case does not indicate that the trial court abused its discretion.

Appellant urges us to adopt the reasoning of the court of appeals in State v. Tisdale, 103 Idaho 836, 654 P.2d 1389 (1982), which requires district courts to setforth in writing the reasons for imposing a particular sentence. Although the trial court failed to make specific statements regarding its reasons for imposing the sentence, a review of the record adequately reflects his reasoning.

We note that while the setting forth of reasons for the imposition of a particular sentence would be helpful, and is encouraged, it is not mandatory. To the extent that Tisdale is inconsistent with the views expressed herein, it is overruled.

Appellant contends that the trial court abused its discretion in failing to make written findings regarding mitigating factors considered. Although the trial court was required to “set forth in writing any mitigating factors considered ” I.C. § 19-2515(d) (emphasis added), the trial court in this case simply stated that there were not mitigating factors present. In so doing, the trial court did not comply with the requirement of I.C. § 19-2515(d) or with this court’s express mandate in Osborn I, supra. We do not approve of the actions of the trial court because the findings mandated by the statute are necessary to provide a meaningful basis for distinguishing cases in which the death penalty is imposed from those in which it is not. Although the trial court should have set forth in writing the factors considered in mitigation in this case, in view of our holding that the trial court did not abuse its discretion in sentencing the defendant to a determinate life term and the fact that the death sentence was not imposed in this case, no reversible error occurred.

The sentence imposed by the district court is affirmed.

BAKES, J., concurs. DONALDSON, C.J., and SHEPARD, J., concur in the result.