807 P.2d 610 (Idaho 1991), 18119, State v. Enno

Docket Nº:18119.
Citation:807 P.2d 610, 119 Idaho 392
Opinion Judge:BOYLE, Justice. BISTLINE,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Barrette Luke ENNO, Defendant-Appellant.
Attorney:McDermott, Zollinger, Olley & Israel, Pocatello, for appellant. Keith A. Zollinger argued, Pocatello. McDermott, Zollinger, Olley & Israel, Pocatello, for appellant. Keith A. Zollinger argued, Pocatello. Jim Jones, Idaho Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for respondent. Lynn E. Thomas...
Judge Panel:BISTLINE, Justice, dissenting.
Case Date:January 09, 1991
Court:Supreme Court of Idaho
 
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Page 610

807 P.2d 610 (Idaho 1991)

119 Idaho 392

STATE of Idaho, Plaintiff-Respondent,

v.

Barrette Luke ENNO, Defendant-Appellant.

No. 18119.

Supreme Court of Idaho

January 9, 1991

Rehearing Denied April 8, 1991.

Page 611

[119 Idaho 393] McDermott, Zollinger, Olley & Israel, Pocatello, for appellant. Keith A. Zollinger argued, Pocatello.

Jim Jones, Idaho Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for respondent. Lynn E. Thomas argued, Boise.

[119 Idaho 394]

Page 612

BOYLE, Justice.

This is a criminal case concerning a first degree murder conviction and fixed-life sentence of defendant Barrette Luke Enno. Enno asserts that during the course of the trial certain fundamental constitutional errors occurred, which together with other evidentiary and instructional error, require reversal. Enno also asserts that the sentencing court failed to consider his potential for rehabilitation and other factors in imposing a fixed life sentence.

I.

FACTS

On October 25, 1988, eighteen-year-old Enno met Joanne Freeman, a woman twenty-four years his senior, at a bar in Pocatello. 1 After Enno sold Freeman some marijuana they traveled to another bar and consumed more beer. Thereafter they traveled to an area west of Pocatello and parked. Freeman apparently desired to have sexual intercourse and began taunting Enno. He refused and threatened to kill her if she did not stop her advances. Freeman laughed at him and Enno grabbed her throat. He continued to choke Freeman until blood came from her mouth. During the ensuing struggle both individuals ended up outside of the automobile on the passenger side. Enno beat Freeman with a board, striking her in the throat which crushed her larynx causing her to suffocate. When Enno thought he still saw signs of Freeman breathing he got into the automobile and drove over her body three times. The impact with the vehicle and its exhaust system burned and lacerated Freeman's body. After running over her with the automobile, Enno burned the body with lighter fluid and charcoal. Enno then returned to his brother's house in Pocatello. After talking about the events of the evening with his brother he ate and went to bed.

Enno was subsequently arrested and charged with murder in the first degree. After a week long trial the jury found Enno guilty of first degree murder. Since the State sought the death penalty an aggravation/mitigation hearing was held. The sentencing court determined that the State had proven two aggravating circumstances beyond a reasonable doubt pursuant to I.C. § 19-2515(g). The aggravating circumstances found by the trial court were that the murder was "especially heinous, atrocious and cruel" under subsection (g)(5) and that "by the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life" under subsection (g)(6).

In mitigation of the aggravating circumstances the sentencing court found the following:

The defendant was eighteen at the time the murder was committed. He was the victim of physical abuse and had been raised in an extreme alcoholic family where he had virtually no direction or protection from his earliest childhood. The defendant had been drinking heavily for a period two weeks preceding the murder--excessively that day and had used marijuana that evening. The defendant had no violent criminal record. The defendant has performed well in structured environments and regressed in those situations only when faced with the possibility of returning to his abusive alcoholic home. He has been a model prisoner during his present period of incarceration. He is intelligent and has some limited employment skills.

The defendant has expressed some remorse for his actions, which indicates that he is starting to at least recognize and deal with his abusive childhood, anti-social personality, and the rage he possesses.

....

The defendant cooperated with police in the investigation, submitting to interrogation

Page 613

[119 Idaho 395] and confessing his involvement. The defendant may be able to handle life once drugs are removed from his life.

(Emphasis in original.)

The sentencing court sentenced Enno to a fixed life term with no possibility of parole. This appeal was then filed.

II.

PEREMPTORY CHALLENGES

Enno claims that the manner in which the peremptory challenges were exercised violated I.C. § 19-2030 constituting fundamental error, and denied Enno his right to a fair trial. We disagree.

The record indicates that after the State exercised its second peremptory challenge the court instructed the attorneys that they would thereafter exercise peremptory challenges in alternating rounds. The record is unclear as to how this procedure actually occurred 2; but it appears from a careful reading of the record and the helpful briefs of counsel that the State exercised its peremptory challenge first on rounds one, two, five, seven and nine and the appellant exercised the first peremptory in rounds three, four, six, eight and ten. 3 The effect of this procedure is that after round four both the State and appellant exercised peremptory challenges two at a time. Appellant waived his sixth and eighth peremptory challenges.

Idaho Code § 19-2030 governs the manner in which juror peremptory challenges are conducted and states:

Alteration of peremptory challenges.--After the jury is passed for cause, both parties alternately, beginning with the people, may take their peremptory challenges. But no challenge is lost by failure to alternate if the panel is opened by the other party; and each party is entitled to a full panel before exercising a peremptory challenge. Provided, however, in the discretion of the court, the number of jurors who will hear the case, plus a number of jurors representing the total number of possible peremptory challenges, may be called and examined for cause before the parties begin to exercise their peremptory challenges.

In this case thirty-five jurors were passed for cause. Each party was entitled to a total of eleven peremptory challenges,

Page 614

[119 Idaho 396] including one for an alternate juror, and the peremptory challenges were exercised in a series of rounds or alternatively as provided in I.C. § 19-2030. Although the method utilized by the trial court in this case was unconventional and not a recommended procedure, it did not significantly vary from the regular manner of exercising peremptory challenges sufficient to constitute reversible error. Further, no objection was made by either party to the procedure utilized. Appellant was allowed to exercise one of his peremptory challenges in each round and was allowed to continue to exercise his peremptory challenges even after he had waived challenges in rounds six and eight. The peremptory challenges were alternately exercised by the parties as required by I.C. § 19-2030.

Appellant argues on appeal that State v. Carringer, 84 Idaho 32, 367 P.2d 584 (1961), and State v. Latham, 98 Idaho 558, 569 P.2d 362 (1977), which prohibit certain jury selection practices, should apply in this case. Those cases, however, are distinguishable from the present circumstances. In State v. Carringer, 84 Idaho 32, 367 P.2d 584 (1961), this Court held that the struck jury method utilized by the trial court was at such variance from the statutory requirement that it required a new trial. Since Carringer was decided in 1961, however, I.C. § 19-2030 has been amended by adding the last sentence which remedies the particular problem encountered in that case. 4 In any event, the struck jury method utilized by the court in this instant case is approved procedure pursuant to I.C.R. 24(d). 5

Enno also asserts that the manner in which the jury selection process was conducted not only was in violation of I.C. § 19-2030, but was such a departure from accepted practice that it constituted fundamental error. In support of his argument, Enno relies on State v. Carver, 94 Idaho 677, 496 P.2d 676 (1972), in which this Court held that the physical absence of the defendants during the impaneling of the jury was fundamental error requiring reversal. Unlike the unusual setting involved in Carver, however, Enno was physically present during the entire voir dire process, conferred with his attorney and participated in the selection of the jury. The facts presented in Carver and this case are easily distinguishable. The manner of impaneling the jury in this instant case did not constitute fundamental error requiring reversal.

In State v. Latham, 98 Idaho 558, 569 P.2d 362 (1977), the State waived its peremptory challenges. After the defendant had exercised his challenges, the trial court offered the State the opportunity to exercise its peremptory challenges and limited the replacement pool to two people. In both Carringer and Latham the procedural irregularity employed was not a mere mistake in procedure but a substitution of procedure in direct violation of the statute. In this instant case there is no direct violation of the statute, only an irregular application of the peremptory challenge procedure. Neither party was given more peremptory challenges than the other, and the peremptory challenges were exercised alternately in rounds as required by I.C. § 19-2030, with the State beginning the

Page 615

[119 Idaho 397] process. Enno was personally present during the voir dire process and did not object at any time to the procedure followed by the trial court, nor has he shown any prejudice. We point out that the procedure followed by the trial court was irregular and is not a recommended practice, however, because there was no objection at trial and no prejudice has been shown we do not find reversible error in this procedure.

III.

...

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