State v. Sivak

674 P.2d 396, 105 Idaho 900, 1983 Ida. LEXIS 481

• Court: Idaho Supreme Court
• Decided: August 15, 1983
• Docket: 14435, 15022
• Status: Published

Opinions

BAKES, Justice.

Appellant appeals from a sentence of death imposed by the trial court on convictions of first degree murder, robbery, and possession of a firearm during the commission of a felony.¹ Our review is not only in response to the appeal, but also pursuant to automatic review of death sentences mandated by I.C. § 19-2827.²

On April 6,1981, Dixie Wilson, an attendant at a self service gas station, was discovered near death by a customer. She had been stabbed numerous times and shot several times. Evidence indicated she had also been sexually molested. She later died from her wounds.

Witnesses saw two men inside the station with Wilson shortly before the murder, one they identified as Randall Bainbridge. Appellant and Bainbridge were seen together before and after the killing.

Appellant admitted being present during the robbery and murder, but claimed he was merely an innocent bystander. He claimed he did not participate in the robbery and murder and did not carry a firearm. However, appellant’s fingerprint was found on the murder weapon.

Evidence indicated appellant had previously worked at the station, was known to the victim, had expressed animosity toward her, and had called to inquire who would be on duty at the station on April 6,1981. The gun used in the attack was found in a storage shed rented by appellant.

Appellant was convicted and sentenced to death. He appeals from his conviction for possession of a firearm, and from the sentence of death imposed on conviction for murder, robbery and possession of a firearm.

I

Initially, appellant argues that Idaho’s death penalty statute, I.C. § 19-2515, is unconstitutional. We first note that a capital sentencing scheme substantially similar to Idaho’s was upheld by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). However, appellant makes specific objection to several areas of Idaho’s statute which we consider separately.

A.

Appellant first argues that the involvement of a jury in the capital sentencing process is mandated by the United States Constitution. He asserts that since Idaho’s death penalty scheme fails to include a jury in the sentencing procedure, it is unconstitutional. The same argument was made and rejected by this Court in State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983). We again reject appellant’s argument for the same reason we rejected it in Creech.

In making this argument, appellant directs our attention to those United States Supreme Court cases that require death penalty schemes be consistent with “evolving standards of decency.” Gregg v. Georgia, supra; Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). He argues that only the involvement of a jury can ensure that the imposition of the death penalty remains true to societal standards of decency.

However, the United States Supreme Court has never decided the question of which authority is required to decide what sentence to impose in capital cases — judge or jury. The specific question of the constitutionality of a scheme not involving a jury in the sentencing process has never been decided by that court. Indeed, the Supreme Court has recognized, in dicta, that judge sentencing should lead to greater consistency in sentencing, which is one of the ultimate goals in the capital sentencing scheme.

“This Court has pointed out that jury sentencing in a capital case can perform an important societal function, ... but it has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases.” Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), reh. den. 429 U.S. 875, 97 S.Ct. 198, 50 L.Ed.2d 158 (1976).

The values possessed by a particular community, which should somehow be reflected in a capital sentencing scheme, are adequately represented by the elected representatives of the community, who enact the local death penalty statutes. Their representative status, coupled with the considered judgment of an elected trial judge as the sentencer, should assure both consistency in the application of the death sentence and adequate reflection of community values. We see no reason why a sentencing scheme not involving the jury should be declared unconstitutional under the United States Constitution. See Barclay v. Florida, - U.S. -, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) (where jury recommended life sentence, trial judge fully justified in overruling jury and imposing death sentence).

B.

Although not alleged by appellant here, an argument has been made that Idaho’s present sentencing scheme, excluding the jury, violates the Idaho Constitution. While normally we would not consider arguments not raised by the parties, capital cases present an exception to that rule in that we are required by law to conduct an independent review of cases where the death penalty has been imposed. I.C. § 19-2827. We now proceed to consider whether the present I.C. § 18-4004 and I.C. § 19-2515, as a sentencing scheme, violate the Idaho Constitution.

Our state constitution was drafted August 6, 1889, and adopted by the people in November of 1889. Art. 1, § 7, of that constitution reads: “§ 7. RIGHT TO TRIAL BY JURY. — The right of trial by jury shall remain inviolate .... ” This section has been interpreted in several of our cases as guaranteeing the right to trial by jury as it existed at the time of the adoption of the Constitution. See People v. Burnham, 35 Idaho 522, 207 P. 589 (1922); Christensen v. Hollingsworth, 6 Idaho 87, 53 P. 211 (1898). Thus, to determine what right is preserved, it is necessary to determine what right existed at the time of enactment of the Constitution.

The tracing of the sentencing function in capital cases begins with the 1864 Criminal Practice Act, which, although not in effect at the time of enactment of the Constitution, was an immediate predecessor of the section in effect in 1889. The 1864 section read:

“[T]he jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree .... Every person convicted of murder of the first degree, shall suffer death . . .. ”

Under the 1864 section, the jury, in determining the crime committed, in effect chose the sentence to be imposed. A similar procedure existed in the 1887 enactment, 1887 R.S. § 6563. It read:

“Every person guilty of murder in the first degree shall suffer death, and every person guilty of murder in the second degree is punishable by imprisonment in the Territorial prison not less than ten years, and the imprisonment may extend to life.”

Thus, if a person was found guilty of first degree murder, the penalty was death. However, if a person was found guilty of second degree murder, the sentencer was invested with the discretion to set a term of imprisonment from ten years to life. That sentencer was the judge, and not the jury. See 1887 R.S: § 7992 (where discretion is conferred upon the court, the court will hear evidence in aggravation or mitigation of the punishment).

Under the scheme that existed at the time of the adoption of the Idaho Constitution, the jury determined whether a person was guilty of first or second degree murder. Once the degree of crime was determined, the jury’s factfinding function was completed. It is certainly true that the jury’s decision had an impact on the sentence which was imposed. Thus, if the jury determined that the defendant was guilty of only the crime of second degree murder, no death penalty could be imposed. However, that is only an incidental consequence which is true in every case where a jury finds a defendant guilty of a lesser included offense from that with which the defendant is charged. Thus, if a defendant is charged with first degree burglary, and the jury finds him guilty of second degree burglary or perhaps petit larceny, the jury’s determination will have a substantial impact upon the sentence which is imposed upon the defendant. However, that does not mean that under our Constitution a defendant is entitled to have a jury impose the sentence. While the jury’s determination of the crime of which the defendant was guilty affects the sentence which may necessarily be imposed, that incidental effect does not mean that the jury is an integral part of the sentencing process. The argument that is made that R.S. § 6563, in effect in 1889 when the Idaho Constitution was adopted, constitutionalized a right to be sentenced by a jury in capital cases, basically misconstrues the distinction between the factfinding function of determining the degree of crime of which the defendant is guilty performed by the jury, and the sentencing function which is to be performed by the court. Accordingly, we conclude that Art. 1, § 7, of the Idaho Constitution does not require the participation of a jury in the sentencing process in a capital case.

C.

Appellant also asserts that I.C. § 19-2515(f)(8) is unconstitutionally vague. Again, somewhat the same argument was made by the appellant in State v. Creech, supra. In Creech, the appellant argued that I.C. § 19-2515(f)(8) was unconstitutionally vague. In that case, this Court construed “propensity” in such a way as to narrow its meaning so that it could not possibly be interpreted to apply to every murder coming before a state trial court.

“We would construe ‘propensity’ to exclude, for example, a person who has no inclination to kill but in an episode of rage, such as during an emotional family or lover’s quarrel, commits the offense of murder. We would doubt that most of those convicted of murder would again commit murder, and rather we construe the ‘propensity’ language to specify that person who is a willing, pre-disposed killer, a killer who tends toward destroying the life of another, one who kills with less than the normal amount of provocation. We would hold that propensity assumes a proclivity, a susceptibility, and even an affinity toward committing the act of murder.” State v. Creech, supra, 670 P.2d at 471-472.

Thus, appellant can no longer claim that (f)(8) is unconstitutionally vague because of this limiting construction placed on it by this Court. See Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). However, he does attempt to make a somewhat different argument concerning the constitutionality of this section. He argues that the presence of the word “probably” allows a trial judge to find an aggravating circumstance based on less than a reasonable doubt, in contravention of our opinion in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981).

I.C. § 19 — 2515(f)(8) reads:

“19-2515. INQUIRY INTO MITIGATING OR AGGRAVATING CIRCUMSTANCES — SENTENCE IN CAPITAL CASES — STATUTORY AGGRAVATING CIRCUMSTANCES — JUDICIAL FINDINGS. — . ..

(f) 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:

(8) The defendant, by prior conduct or conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.”

For a trial judge to rely on (f)(8) as an aggravating circumstance in the imposition of the death penalty, he must find beyond a reasonable doubt, that the defendant exhibits such propensity.

Reading (f)(8) in its entirety, we fail to see how it can be reasonably argued that the statute could be interpreted to require only a finding based on the preponderance of the evidence, rather than beyond a reasonable doubt, as it expressly states. Furthermore, the trial judge expressly stated that he found the circumstance to exist beyond a reasonable doubt. He also noted:

“The defendant, both by prior conduct and conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society. It is impossible for this court to believe that society will ever be safe while this defendant remains mobile and active.”

The interpretation that appellant urges is contrary to the clear wording of the statute. I.C. § 19-2515(f)(8) merely requires a finding, beyond a reasonable doubt, of the existence within a defendant of a propensity to commit murder likely to cause a threat to society. Thus read, (f)(8) is not unconstitutionally vague.

Appellant also argues that I.C. §§ 19-2515(f)(5) and (f)(6) are unconstitutionally vague. In State v. Osborn, supra, and State v. Creech, supra, we considered these arguments and placed limiting constructions on these sections so as to eliminate any possible vagueness. We need not consider those arguments again here.

D.

Appellant also argues that I.C. § 19-2515(d) is Unconstitutional because it does not require the trial judge to find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. Again, a similar argument was considered and rejected in State v. Creech, supra. Appellant confuses the standard applicable to proof of an aggravating circumstance with the weighing process that must occur whenever any sentence is imposed.³ As noted by the Eleventh Circuit recently:

“[Appellant’s argument] ... seriously confuses proof of facts and the weighing of facts in sentencing. While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, ... the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party.” Ford v. Strickland, 696 F.2d 804 (11th Cir.1983).

The “beyond a reasonable doubt” standard applies to the existence of aggravating circumstances, not to the process of weighing them against the mitigating circumstances, which must occur before sentence is imposed. Gray v. Lucas, 677 F.2d 1086 (5th Cir.1982), reh. den. 685 F.2d 139 (5th Cir.1982). See Zant v. Stephens, - U.S. -, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (where United States Supreme Court upheld the Georgia sentencing scheme which provided that, by a finding of a statutory aggravating circumstance beyond a reasonable doubt, the defendant was eligible for the death penalty, and therefore all evidence is to be considered, and it is within sentencer’s discretion to balance aggravating and mitigating circumstances, not pursuant to any special standard. Barclay v. Florida, supra (where Florida statute provided for weighing statutory aggravating circumstances against mitigating circumstances not pursuant to any special standard for the weighing process, statutory scheme approved). Appellant’s argument has no merit.

II

Appellant also makes several assertions concerning the findings and conclusions of the trial court. He asserts that the court relied on non-statutory aggravating circumstances,⁴ that some of the findings were unsupported by the evidence, that some of the findings are inconsistent with the jury’s verdict, and that some are incomplete under State v. Osborn, supra. We will consider each of these assertions separately.

Appellant argues that the court erred in its consideration of non-statutory aggravating circumstances. It appears that the trial court used the same type of format in its written sentencing decision as that used in State v. Creech, supra. The findings of the court are divided into sections, with the individual sections labeled differently:

“4. Facts and Argument Found in Mitigation.

“5. Facts and Argument Found in Aggravation.

“6. Statutory Aggravating Circumstances Found Under Section 19-2515(f), Idaho Code. These aggravating circumstances are all found by this court to be beyond a reasonable doubt.”

Appellant argues that a trial court’s consideration of nonstatutory aggravating circumstances creates both statutory and constitutional problems. We previously ruled in Creech that a trial court is not limited as to the aggravating circumstances it may consider. It is also clear from our opinions in both Creech and Osborn, supra, that a trial court, while it may consider all relevant circumstances in a particular case, must find at least one statutory aggravating circumstance to exist beyond a reasonable doubt. This satisfies the constitutional requirement of notice. Since the trial court expressly found four of the statutory aggravating circumstances to exist beyond a reasonable doubt, the sentence was not imposed in violation of any of appellant’s constitutional rights.

B

Appellant cites two of the trial court’s findings and argues that they are not supported by the evidence. The allegedly objectionable findings are:

“5. ...

“a. ... The defendant dominates his co-defendant, and is primarily responsible for all that occurred.

“6. ...

“d. The defendant, both by prior conduct and conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.”

The evidence before the trial court was more than sufficient to sustain both of these findings. An in-depth interview of appellant’s accomplice was conducted, and was included in the presentence report. It contains references to the relationship between the two, lending support to finding 5a. Finding 6d is supported by evidence of the brutal murder committed by this defendant, by his lack of remorse, willingness to participate in the crime, and by testimony of his prior offer to do violence to and, inferentially, to kill another person other than Dixie Wilson. Because these findings are supported by the evidence, we will not disturb them.

The jury instructions given in the present case, taken from the information, set forth two alternatives for the jury. In Count II, the state alleged that appellant should be found guilty of first degree murder because the crime was committed with premeditation and malice aforethought. Count III alleged that appellant was guilty of first degree murder because the crime was committed during the course of a robbery. The jury, in returning its verdict, acquitted appellant of Count II and convicted him of Count III. Appellant now alleges that several of the district court’s findings are inconsistent with the jury’s verdict. The findings cited by appellant are:

“That the defendant knew the victim ... and realized that she could identify him if she were left alive after this robbery.

“He apparently was mentally cool and collected, with the murder being an intentional rational act.

“After the robbery commenced the defendant realized the victim could identify him if she were left alive after this robbery.”

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 that 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.

Appellant also argues that the findings of the district judge were incomplete and inconsistent in light of our opinion in State v. Osborn, supra. In Osborn, we placed limiting constructions on I.C. §§ 19-2515(f)(5) and (6). Appellant argues that the trial judge’s findings do not affirmatively show that he used those limiting constructions in making his findings on those specific circumstances. Appellant seems to argue that a trial judge should be required to specifically set forth findings on the limiting constructions themselves. Trial judges are required by I.C. § 19-2515 to find at least one statutory aggravating circumstance beyond a reasonable doubt. The limiting constructions placed upon these statutory circumstances in Osborn were set forth to provide a definitional aid to trial judges attempting to apply the circumstances to the particular facts of the case they are considering. 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. The findings made by the trial court in this case sufficiently comply with the standards set out in I.C. § 19-2515(f), State v. Osborn, supra, and State v. Creech, supra.

Ill

Appellant asserts error in the inclusion in the presentence report of a psychiatric evaluation. This evaluation, drawn up by Dr. John Stoner, resulted from a pretrial meeting between Dr. Stoner and appellant, arranged by appellant’s counsel, during the investigation of the propriety of a defense based on mental disease or defect. The evaluation was paid for by appellant’s family, and never offered in evidence during trial. Appellant argues that the evaluation formed the basis of the presentence investigator’s report, but was used in violation of appellant’s attorney/client privilege, his psychologist/patient privilege, and his fifth, sixth and fourteenth amendment rights. Without deciding whether use of such material would violate any of appellant’s rights, we note that upon motion by defense counsel the trial judge expressly refused to consider the evaluation in his sentencing decision, and references to the evaluation were stricken from the presentence report. The record shows that the trial judge made the following comments:

“And the Court, for the record, has had all the reports sanitized by recovering this psychiatry report, so none of the three of us have read these particular items.

“I will order that the presentence report remain sanitized as done so that the Court and both counsel are not aware of the report of Dr. Stoner. And I will not take the report of Dr. Stoner into account in the course of this sentencing. Motion granted.”

Thus, the trial court specifically said that he had not read the report or references to it, and specifically declined to take the report into consideration in sentencing. We will not presume error when the record, on its face, militates against such a conclusion. Appellant’s argument, that the presentence investigator took the report into consideration in preparing the presentence report, and that it affected the report and thus influenced the sentencing judge, is without merit.

IV

Appellant also argues that he was improperly convicted of the crime of possession of a firearm during the commission of a felony, and that a death penalty entered in conjunction with such a conviction cannot stand where the possession conviction was obtained based on instructions which did not comport with this Court’s decision in State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980).

In Thompson, which was released prior to appellant’s trial, we ruled that a person could not be convicted under I.C. § 19-2520, the possession statute, unless it is shown that the defendant is the person who actually used the gun. The statute cannot be used to convict a person who was merely an aider or abettor. Appellant urges that, upon proper instructions, the jury could have found that he was merely an aider or abettor, and never actually possessed the weapon.

The trial judge gave the following instruction concerning the possession charge: “If you find the defendant guilty of any of these crimes it then will become your duty to determine whether or not, in that crime, the defendant carried, displayed, used, threatened, or attempted to use a firearm or other deadly weapon while committing the crime.”

We feel that this instruction adequately informed the jury that, to convict the appellant, he must have “carried, displayed, used, threatened, or attempted to use” a firearm in the commission of a felony. There was sufficient competent evidence upon which to base a finding of actual possession by the appellant. The instruction being adequate, we will not disturb the conviction on that charge.

Pursuant to our independent review in death penalty cases, I.C. § 19-2827 requires us to conduct a review of the record to determine if this particular death sentence resulted from any arbitrary factors, such as passion or prejudice. That section also requires us to determine if the sentence imposed in this particular case is excessive or disproportionate to sentences imposed in similar cases. Our independent review of this case does not reveal any indication of existence of arbitrary factors. Our review of similar cases involving the death penalty, while necessarily limited by the lack of such cases, as noted in State v. Creech, supra, does not reveal the presence of any particular excessiveness or disproportionality in this particular case. The heinous nature of the crime committed in this case, and the nature and character of the defendant, makes the imposition of the death penalty in this case both proportionate and just.

The judgment of conviction and sentence imposed are affirmed.

DONALDSON, C.J., and SHEPARD, J., concur.

1 . We note that this case arrived at the appellate level under the same circumstances as State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983). The district judge filed written findings of fact and conclusions of law which were delivered to Sivak and his counsel, without benefit of an open court hearing. Because 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 counsel present, this Court, by order issued on March 24, 1983, vacated the sentence of death and remanded to the district court for imposition of a sentence in open court. The district judge then convened court on April 4, 1983, and in open court sentenced the defendant to death. Defendant’s appeal from that sentence was consolidated with his previous appeal, and the present opinion disposes of all issues now present in the consolidated cases.

2 . I.C. § 19-2827 reads as follows:

“19-2827. REVIEW OF DEATH SENTENCES — PRESERVATION OF RECORDS. —(a) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Idaho....

“(b) The Supreme Court of Idaho shall consider the punishment as well as any errors enumerated by way of appeal.....”

3 . We note that in State v. Wood, 648 P.2d 71 (Utah 1982), the Utah Supreme Court held that the trial judge must find aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. However, they so ruled in interpreting their own statutory scheme and not on the basis of federal or state constitutional principles. Id. at 82. We note that Utah’s capital sentencing scheme is somewhat different from Idaho’s. We find the reasoning in that case to be unpersuasive.

4 . I.C. § 19-2515(f) sets out the statutory aggravating circumstances to be considered by a trial judge in sentencing.