261 P.3d 853 (Idaho 2011), 34667, State v. Draper

Docket Nº:34667.
Citation:261 P.3d 853, 151 Idaho 576
Opinion Judge:HORTON, Justice.
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Brian L. DRAPER, Defendant-Appellant.
Attorney:Molly Huskey, State Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. John McKinney argued.
Judge Panel:Chief Justice BURDICK and Justice EISMANN concur. J. JONES, J., concurring in part and dissenting in part. W. JONES, Justice, concurring in part and dissenting in part.
Case Date:September 13, 2011
Court:Supreme Court of Idaho
 
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261 P.3d 853 (Idaho 2011)

151 Idaho 576

STATE of Idaho, Plaintiff-Respondent,

v.

Brian L. DRAPER, Defendant-Appellant.

No. 34667.

Supreme Court of Idaho, Boise

September 13, 2011

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[151 Idaho 580] Molly Huskey, State Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. John McKinney argued.

HORTON, Justice.

Cassie Jo Stoddart (Stoddart) was murdered during the night of September 22nd to 23rd, 2006. Brian Draper (Draper), who was sixteen years-old at the time of Stoddart's murder, and Torey Adamcik (Adamcik), who was also a juvenile, were arrested and charged with murder and conspiracy to commit murder, tried as adults, and convicted during separate trials. Draper was sentenced to a term of fixed life imprisonment for the murder charge and a life sentence with thirty years fixed for the conspiracy charge. Draper now appeals, raising seven issues. He argues that a) the jury instructions for both murder and conspiracy relieved the State of proving all elements of the crimes and violated his right to due process of law; b) Draper's fourth police interview should have been suppressed as his parents were not present at the interview; c) the jury instructions and the district court's failure to suppress the interview, even if individually

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[151 Idaho 581] harmless, cumulatively constitute reversible error; d) the sentences should be vacated because the investigator's presentence report was biased; e) Draper's fixed life sentence for murder violated the Idaho and U.S. Constitutions' prohibition of cruel and unusual punishment; f) the district court's sentences constituted an abuse of discretion; and g) the district court's denial of Draper's motion under Idaho Criminal Rule 35 to modify his sentences constituted an abuse of discretion. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Events Surrounding Stoddart's Murder

Around August 31, 2006, eighteen-year-old Joe Lucero received a call from Torey Adamcik asking if he would buy some knives for him. Together Adamcik and Lucero went with Draper to a local pawn shop to buy the knives. On the way, they stopped at an ATM so that Draper could withdraw money and, of the $45 paid for the knives, Draper provided $40. Adamcik pointed out one knife and Draper selected three others.

Draper and Adamcik had also begun videotaping snippets of themselves talking about killing. This videotape was later recovered with other evidence used in the murder and, at trial, Draper's counsel argued that this tape was part of a horror movie that Draper and Adamcik were making. Portions of the transcript from the video include the following, from the night before Stoddart's murder:

1. September 21, 2006 at 8:05:23 PM *Adamcik and Draper are in car, Adamcik is driving and Draper is filming from the passenger seat*

Draper: We're going for a high death count

Adamcik: Plus, we're not going not to get caught Bryan, if we're going for guns, we're just gonna end it. We're just gonna grab the guns and get outta there and kill everybody and leave.

Draper: We're going to make history.... We're gonna make history.

Adamcik: For all you FBI agents watching this—

Draper: *laughing*

Adamcik: Uh ... you weren't quick enough. *laughing*

Draper: You weren't quick enough, and you weren't s-s-smart enough. And we're going over to [Jane Doe 1's] house, we-we-we're going to snoop around over there and try to see if she's home alone or not, and if she's home alone, SPLAT! ... She dead.

Adamcik: Don't put your humor into this Bryan.

Draper: Uh, I'm not putting any humor into it.... Yep, people will die, and m-m-memories will fade.

Adamcik: Memories will fade.... Hmm, I wonder what movie you got that from Bryan?

Draper: My self!

Adamcik: *laughing*

Draper: That was from myself.

Adamcik: No wonder it was so lame.

Draper:— kay, we're on our way, and I'm gonna, I'll let you stay tuned, we're almost there.

2. September 21, 2006 at 8:08:12 PM *Adamcik and Draper sitting in car, Draper is filming Adamcik with the camera light on*

Draper: We're at [Jane Doe 1's] house. It's clear out there in the pasture. We've already snooped around her house a couple times, Uh, and sh-sh-she's not at home so we're gonna go to that church over there and we're gonna call a girl and a guy named Cassie and Matt [Beckham, Cassie's boyfriend]. They're our— our friends but we have to make sacrifices. So um I feel tonight i-i-it is the night and I feel really weird ... and stuff. I feel like I want to kill somebody. Uh, I know that's not normal but what the hell.

Adamcik: I feel we need to break away from normal life.

Draper: How bright is this light? *Draper has turned camera light directly onto Adamcik*

Adamcik: Because ... let's put it this way ... parents, along with their parents, along with their parents, and so on—

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[151 Idaho 582] Draper: Uh-huh

Adamcik:— taught them about God, Jesus, the whole bullshit—

Draper: *laughing*

Adamcik:— line. I'm sure you guys believe in God as well. I realized when I was in seventh grade ... along, you don't believe in Santa Claus or—

Draper: *laughing*

Adamcik:— vampires, or werewolves, they're used to metaphor, not let— they teach their kids back in the 1800s, I learned this in English class, about telling their kids that they can't go outside or a vampire will get you— just to make their kids stay and do what they want to do. God is basically—

Draper: That's what God's for right?

Adamcik:— the same way—

Draper: Yep.

Adamcik:— tryin' to get people to do good, or else " so-called" *air quoting* you go to hell.

Draper: And we're obviously going to hell if it's real, but who gives a shit?

Adamcik: And why would you say it's real?

Draper: *talking over Adamcik* Yeah, but it's not real. It's not real, cuz it's so blatantly obvious that it's not real, but *laughing*

Adamcik: People believe it because their parents teach them, and so it's so hard for them to let go of it because they've been taught their whole life.

Draper: Yeah, I know.

Adamcik: But, fuckin—

Draper: What?

Adamcik:— the point I'm makin' is ... we are also taught that things like killing people and other things is wrong. The only that it's wrong about is because it's breaking the law and the law is only wrong *mumbling searching for words*—

Draper: Natural selection, dude. Natural selection, that's all I've gotta say.

Adamcik: There should be no law against killing people. I know it's a wrong thing, but ...

Draper: Natural selection—

Adamcik:— Hell, hell, you restrict somebody from it, they're just gonna want it more.

Draper: Exactly. Goodbye camera.

3. September 21, 2006 at 8:15:39 PM *Adamcik and Draper are in car, Adamcik is driving and Draper is filming from the passenger seat*

Draper:— home. My friend's too pussy to go investigate— turn here

Adamcik: Too smart—

Draper: Why aren't you turning there dude?

Adamcik: Cuz it's faster this way

Draper: Now we're going to go over to Cassie and Matt's [Beckham's] house. If they're home alone, we're gonna ...

Adamcik: It's Cassie's house. Matt [Beckham] is there.

Draper: Matt [Beckham] is there. Sorry. We're gonna gawe're gonna knock on the door. We'll see who is there. We'll, we'll see, we'll see— see if their parents are home or not. If they're home alone we will leave our way and then we will come back in about ten minutes. We'll sneak in through the door because chances are they're probably in Cassie's room. S-s-s-so we will sneak in the front door, we'll make a noise outside.

Adamcik: And Matt [Beckham] will come out to investigate.

Draper: We'll kill him. And we'll scare the shit out of Cassie ... okay?

Adamcik: Sounds like fun.

Draper: Well stay tuned.

4. September 21, 2006 at 8:36:46 PM *Adamcik and Draper are in car, Adamcik is driving and Draper is filming from the passenger seat*

Draper: We found our victim and sad as it may be she's our friend but you know what? We all have to make sacrifices. Our first victim is going to be Cassie Stoddart and her friends ...

Adamcik: *directed at passing car* God, turn your brights off asshole!

Draper: We'll let you ... *laughs* we'll find out if she has friends over, if she's

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[151 Idaho 583] going to be alone in a big dark house out in the middle of nowhere *laughs*. How perfect can you get? I, I mean like holy shit dude.

Adamcik: I'm horny just thinking about it.

Draper: Hell yeah. So we're gonna fuckin' kill her and her friends and we're gonna keep moving on. I heard some news about [Jane Doe 2], she's gonna be home alone from six to seven so we might kill her and drive over to Cassie's thing and scare the shit out of them and kill them one by fucking one. Hell yeah.

Adamcik: Why one by one? Why can't it be a slaughterhouse?

Draper: Two by two and three by three. Cause we've got to keep it classy.

Adamcik: Keep it classy.

Draper: So yeah. It's going to be extra fun.

Adamcik: You're evil *laughs*.

Draper: Yes, I am. So are you dude. Evil. Evil.

Adamcik: No. Evil is an expression of God. That was another test you failed.

Draper: Evil is not an expression of God.

Adamcik: Yes, it is.

Draper: That is bullshit and you know it.

Adamcik: Evil of origin is a follower of fucking Satan.

Draper: There is no Satan.

Adamcik: Is Satan real? Then shut up.

Draper: Then how are we supposed to express ourselves?

Adamcik: Good and Bad.

Draper: We're, we're bad.

Adamcik: We are bad.

Draper: That sounds so shitty.

Adamcik: We're evil. That sounds even shittier.

Draper: Hey, we're not, okay. Then we are sick...

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