715 P.2d 833 (Idaho 1985), 14865, State v. Stuart

Docket Nº:14865.
Citation:715 P.2d 833, 110 Idaho 163
Opinion Judge:BAKES, Justice. BISTLINE,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Gene Francis STUART, Defendant-Appellant.
Attorney:Robert E. Kinney, Orofino, for defendant-appellant. Jim Jones, Atty. Gen., and Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.
Judge Panel:DONALDSON, C.J., and SHEPARD, J., concur. BISTLINE, Justice, dissenting. DONALDSON, C.J., and SHEPARD, BAKES and HUNTLEY, JJ., concur. BISTLINE, Justice, dissenting.
Case Date:May 03, 1985
Court:Supreme Court of Idaho

Page 833

715 P.2d 833 (Idaho 1985)

110 Idaho 163

STATE of Idaho, Plaintiff-Respondent,


Gene Francis STUART, Defendant-Appellant.

No. 14865.

Supreme Court of Idaho.

May 3, 1985

On Rehearing Feb. 20, 1986.

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[Copyrighted Material Omitted]

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[110 Idaho 165] Robert E. Kinney, Orofino, for defendant-appellant.

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

BAKES, Justice.

Appellant was convicted of first degree murder by torture for the beating death of a three year old boy, the son of his live-in girlfriend. He was sentenced to death. He appeals both his conviction and his sentence. We affirm.

Appellant and Kathy Miller, the mother of the deceased victim, Robert Miller, met in August, 1980, began dating, and subsequently moved in together on September 20, 1980. Robert Miller was at that time two years old, and he lived with appellant and his mother. Appellant then assumed control over Robert. At that time the child was not yet toilet trained, and much of the punishment imposed upon the child dealt with this problem.

Appellant was a very dominant person and often critical of others in his presence. He was a strict disciplinarian who required almost adult behavior from Robert over the course of their relationship. Appellant and Kathy Miller often argued about his treatment of Robert, and Ms. Miller moved out of the premises several times after her child had been bruised and beaten by the defendant.

In the spring and summer of 1981, appellant assumed primary control over Robert, feeding, clothing and caring for him. Robert often accompanied appellant to his place of business.

In late summer and early fall of 1981, appellant and Ms. Miller began sharing the management duties at a small tavern near Orofino. Appellant and Ms. Miller would work separate shifts, with Miller working during the day and appellant working at night. Each would take care of Robert while the other was working.

In October of 1980, there suddenly appeared bruises and blisters on Robert's backside. In November of 1980, Robert had bruises across his forehead and a black eye. Later in November, Robert sustained a torn and cut ear. Various explanations were given by appellant for these injuries, including a spanking with a stick for the backside bruises, and a tricycle collision for the black eye. After the torn ear appeared, Ms. Miller moved out because of the injuries to her son. Appellant later apologized and convinced Miller to move

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[110 Idaho 166] back in. Ms. Miller apparently moved in and out several times, at least some of which moves resulted from the force used in Robert's discipline.

In March Robert's bottom, up to the middle of his back, was covered with bruises, which the defendant claimed resulted from a fall in the shower. In April, Robert had bruises on his chin. Robert had little round bruises on his chest in November of 1980 and September of 1981. These bruises appeared because of appellant's habit of jabbing him in the chest with a finger while scolding him.

Appellant had other unique requirements. He attempted to teach Robert, a two year old, table manners, requiring that Robert learn to properly use his fork (pick it up with the left hand, transfer it to the right hand, etc.) and use his napkin to wipe his mouth after every bite. If Robert failed to perform correctly, he was often made to stand in a corner. Other requirements of Robert were that he look only at his plate, and replace his fork on the table after every bite. Appellant demanded these movements of Robert while failing to follow them himself. At one time appellant hit Robert on the hand with his fork when he picked up the fork with the wrong hand.

There were two behaviors exhibited by Robert that appellant punished in particular. One was "boobing", roughly translated as pouting or sulking. The other was wetting his pants. After Robert would wet his pants or exhibit any other unacceptable behavior, he would be given a cold shower from which he would emerge shaking with cold and blue lips.

In May of 1981, Robert's penis was darkly bruised on the top and bottom. There was no explanation for this injury. Also in May Robert's bottom and head were bruised and scratched. Appellant explained that Robert fell because the toilet seat broke when he sat on it. Also in May, a silver dollar size patch of hair was discovered as missing from Robert's head. In early spring Robert complained of a hurt left arm, although no visible marks were seen.

On September 19, 1981, Ms. Miller was working the day shift at the tavern with appellant caring for Robert. Appellant gave his version of the events of that day at trial--the only version available, since appellant and Robert were alone during the day. Robert spent two hours at a friend's house, where appellant picked him up and took him home. He attempted to feed him lunch, but Robert refused to eat. According to appellant, he then began poking Robert in the chest as punishment. He then struck him in the chest with his fist, swatted him and directed him to eat. Robert then proceeded to eat with no complaints. After Robert finished eating, he was put down for a nap. According to appellant he later went to check on him and found that Robert had vomited on the bed. Appellant then bathed Robert and put him back down. However, he then noticed that Robert's breathing was unusual. Appellant testified that at this point Robert was still alive. He attempted mouth-to-mouth resuscitation, and Robert again vomited. Appellant then purportedly rushed Robert to the hospital. Robert was dead on arrival. Emergency room personnel noted that Robert's body was cold, indicating the possibility that he had been dead for longer than appellant's testimony would indicate.

An autopsy was conducted upon Robert, which disclosed the cause of death as internal hemorrhaging caused by the rupture of the liver. The pathologist felt that this rupture was caused by more than one blow; however, he admitted that a well placed single blow could have caused the rupture. The pathologist also testified that death would have occurred between one and one and a half hours after such an injury, contradicting appellant's testimony concerning the time frame of events of the afternoon. A number of bruises were found on the victim's body, both internal and external. These bruises were of differing ages. In addition, Robert had suffered a subdural hematoma in the head region, which the pathologist testified would have been caused only by a fair amount of blunt trauma to the head. Also, X-rays taken of

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[110 Idaho 167] Robert indicated that he had suffered a broken left arm several months before the date of death.

Appellant was arrested and charged with first degree murder by torture. Because of extensive publicity, he asked for a change of venue from the Orofino area to a venue outside the circulation area of the Lewiston Morning Tribune, the paper responsible for most of the publicity. The trial court later agreed to change venue, but instead of changing it outside the circulation of the Lewiston Morning Tribune, the trial judge changed venue to Moscow. In addition, the trial court refused to sequester the jury at trial.

Appellant filed a motion in limine prior to trial in an attempt to exclude possible evidence to be presented by appellant's former wives and girlfriends indicating appellant's mistreatment of them. All of those witnesses were eventually allowed to testify, and their testimony indicated that appellant had inflicted continuous physical abuse on them as he had upon Robert Miller. All of this testimony allegedly supported the prosecution's theory that appellant's treatment of Robert did not indicate an intent to discipline, but rather indicated an intent to control the victim and inflict pain in order to cause suffering, the intent which is necessary under the murder by torture statutes.

After a jury trial, appellant was found guilty of murder by torture in the first degree. After an aggravation/mitigation hearing, and the submission of findings of the trial court in considering the death penalty, appellant was sentenced to death.

Appellant asserts numerous reasons why this Court should overturn his conviction, his sentence, or both. He alleges that (1) there was insufficient evidence to warrant a jury instruction and verdict based on first degree murder by torture, or that a jury instruction on second degree murder by torture should have been given; (2) the trial court erred in denying the motion in limine, and erred in failing to rule on the motion prior to trial; (3) the trial court erred in moving the venue of the trial to a site still within the circulation area of the source of prejudicial pretrial publicity; (4) he was denied his constitutional right to a speedy trial; (5) his sentence was unconstitutionally imposed either because of the vagueness of the aggravating circumstances relied upon or the failure to use a jury in the sentencing process; and (6) the sentence imposed in this case was disproportionate. We will consider the alleged errors in the above order.



The first question presented by appellant is: was there sufficient evidence to warrant a jury instruction and conviction on a murder by torture charge? Basically, appellant argues that the facts of this case do not rise to the level of murder by torture as this type of murder should be defined. We begin our analysis of this question by examining Idaho statutory law outlining the offense of which appellant was convicted.

I.C. § 18-4001 defines murder and includes a death caused by the intentional application of torture. The statute also defines torture in two different ways:

"18-4001. Murder...

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