State v. Creech

• Decision Date: 23 May 1983
• Docket Number: 15000,Nos. 14480,s. 14480
• Citation: 105 Idaho 362,670 P.2d 463
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Thomas Eugene CREECH, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 463

670 P.2d 463

105 Idaho 362

STATE of Idaho, Plaintiff-Respondent, v. Thomas Eugene CREECH, Defendant-Appellant.

Nos. 14480, 15000.

Supreme Court of Idaho.

May 23, 1983.

Rehearing Denied Sept. 21, 1983.

[105 Idaho 363]

Rolf Kehne, Boise, Klaus Wiebe, Ada County Public Defenders Office, for defendant-appellant

[105 Idaho 364]

David H. Leroy, Jim Jones, Attys. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent

SHEPARD, Justice.

This is an appeal from a death sentence imposed upon defendant-appellant Thomas Eugene Creech after his plea of guilty to the charge of first degree murder. The cause is before this Court pursuant to the provisions of I.C. § 19-2827, "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," and also upon an appeal filed by Creech, asserting error in certain proceedings, actions and orders of the trial court. We hold that the sentence was validly imposed in conformity with the statutory requirements for the imposition of a death sentence and that the sentence imposed was not in violation of either the Constitution of the State of Idaho or the Constitution of the United States. We affirm.

The following facts regarding the particular offense are disclosed by the record. At the time of the offense here in question, Creech was an inmate of the Idaho State Correctional Institution, serving a life sentence for first degree murder. The victim of this offense, Dale Jensen, had been convicted of car theft and was serving a sentence in the same institution. Jensen had some years earlier sustained a gunshot wound to the head which had necessitated the removal of part of his brain and the placement of a plastic plate in his skull. His speech and motor functions were impaired to some extent. At the time of the offense, both Creech and Jensen were housed in the maximum security tier of the institution.

In the maximum security tier, only one inmate at any one time was ordinarily allowed out of his cell. Creech, however, had been made a janitor and thus, while Creech was performing cleaning duties, he might be out of his cell while another inmate was out of his cell for exercise or shower privileges.

Prior to the offense in question, Creech and Jensen had engaged in argument over television and over Jensen's littering and dirtying the floor, for which Creech, as janitor, was responsible. Apparently the two were not on good terms. Although Creech himself has given more than one version of the murder, it appears that on the day in question, while Jensen was out of his cell, Jensen approached Creech and swung a weapon at him which consisted of a sock containing batteries. Creech took the weapon away from Jensen, who returned to his cell but emerged with a toothbrush to which had been taped a razor blade. When the two men again met, Jensen made some movement toward Creech, who then struck Jensen between the eyes with the battery laden sock, knocking Jensen to the floor. The fight continued, according to Creech's version, with Jensen swinging the razor blade at Creech and Creech hitting Jensen with the battery filled sock. The plate imbedded in Jensen's skull shattered, and blood from Jensen's skull was splashed on the floor and walls. Finally, the sock broke and the batteries fell out, and by that time Jensen was helpless. Creech then commenced kicking Jensen about the throat and head. Sometime later a guard noticed blood, and Jensen was taken to the hospital, where he died the same day. There is some evidence in the record indicating that Creech had been enticed by other inmates to "do Jensen in," but the district judge did not decide or find that the murder had been performed on contract or by plan.

Creech was charged with first degree murder and initially pleaded not guilty. However, later and apparently in response to a letter from Creech, he and his counsel were brought into court to entertain Creech's request to change his plea to guilty. Over the objections of defense counsel, that guilty plea was accepted and the court set a date for a sentencing hearing. Prior to that sentencing hearing, defendant's counsel demanded a jury trial on the issue of aggravating and mitigating factors and also demanded sentencing by a jury. Defense counsel further demanded a [105 Idaho 365]

sentencing hearing formal in nature and based solely on the testimony of live witnesses, and he objected to any consideration of hearsay evidence to be used in the formulation of findings on aggravation and mitigation. All of those demands were denied

At the sentencing hearing, testimony was offered by both the State and the defense, relating to the mental condition of Creech. A psychiatrist, testifying on behalf of the State, offered as his professional opinion that Creech did not suffer from any organic brain syndrome, did not generally depart from reality in his day to day life, and was able to appreciate the wrongfulness of his conduct and conform his acts to the requirements of the law. A psychologist, testifying for the defense, offered as his opinion that Creech, during the fight with Jensen, lost his capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law. The psychologist further testified that, in his opinion, Creech suffered from antisocial personality disorder, from a learning deficit, from schizotypal personality disorder, and from a borderline personality disorder. The district court, although not expressly ruling on the sanity of Creech, did find that the defendant was of adequate intelligence and capable of being trained and educated, and further found that the murder was an intentional and calculated act.

Following the conclusion of the sentencing hearing, the district court made its written findings and pronounced sentence of death upon Creech. ¹

The issues presented on this appeal are whether I.C. §§ 19-2515--2516 require a judge's findings in mitigation and aggravation and the imposition of sentence to be based solely on evidence adduced from witnesses personally present and testifying in open court at the sentencing hearing; whether the district judge here committed error in his weighing of the aggravating and mitigating circumstances; and finally, whether the imposition of the death penalty, under our statutory scheme which allows the imposition of the death penalty by a judge without participation or recommendation of jury, is unconstitutional. We answer all three issues in the negative and affirm the holding of the district court below.

At the outset of the sentencing hearing the State requested that the court take judicial notice of the court's entire file and of the presentence report which the district judge had ordered be prepared. Defendant objected and demanded that the entire sentencing record be produced by live witnesses testifying in open court, basing his demand on I.C. §§ 19-2515--2516 and the case law interpreting those statutes. That demand was treated as a motion, which was denied.

We note at the outset that a sentencing decision made solely on the basis of live testimony is not constitutionally mandated. Rule 32(c) of the Federal Rules of Criminal Procedure provides as a matter of course that the probation service of the court shall make a presentence investigation and report to the court before imposition of sentence. The use of the presentence report over defendant's objection has been upheld, despite the contention that the report contained hearsay. Gregg v. Georgia, 428 U.S. 153, 203-204, 96 S.Ct. 2909, 2939-2940, 49 L.Ed.2d 859 (1976); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Gregg v. United States, 394 U.S. [105 Idaho 366]

489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969); State v. Johnson, 101 Idaho 581, 618 P.2d 759 (1980); United States v. Ferreboeuf, 632 F.2d 832 (9th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1398, 67 L.Ed.2d 368 (1981); Gelfuso v. Bell, 590 F.2d 754 (9th Cir.1978). This Court has held that the trial judge has broad discretion in deciding what evidence is admissible at the sentencing hearing, State v. Johnson, supra, and that the rules of evidence do not apply to the sentencing process, State v. Johnson, supra; State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975). All of the above holdings comport with the constitutional mandate "that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, at 55, 58 S.Ct. 59, at 60, 82 L.Ed. 43 (1937). Accord Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). We further note that the United States Supreme Court has in several instances set aside a death sentence, where the Court deemed that the circumstances under which the sentence was imposed did not allow the proper in-depth consideration of the particular circumstances of both the offender and the offense involved. Enmund v. Florida, supra; Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Winston v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456 (1899). See also, Jurek v. Texas, 428 U.S. 262, 271-273, 96 S.Ct. 2950, 2956-2957, 49 L.Ed.2d 929 (1976)

Thus, the argument of appellant that the matters which may be considered at a sentencing hearing must be limited to testimony adduced from witnesses there present must find its foundation, if any, in interpretation of the language of I.C. §§ 19-2515-2516. I.C....