State v. Sivak

• Decision Date: 15 August 1983
• Docket Number: 15022,Nos. 14435,s. 14435
• Citation: 105 Idaho 900,674 P.2d 396
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Lacey M. SIVAK, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 396

674 P.2d 396

105 Idaho 900

STATE of Idaho, Plaintiff-Respondent, v. Lacey M. SIVAK, Defendant-Appellant.

Nos. 14435, 15022.

Supreme Court of Idaho.

Aug. 15, 1983.

Rehearing Denied Dec. 27, 1983.

Klaus Wiebe and David Z. Nevin, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., and Larry K. Harvey, Deputy Atty. Gen., Boise, for plaintiff-respondent.

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, 428 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...