873 P.2d 784 (Idaho 1993), 19928, State v. Dunlap

Docket Nº:19928.
Citation:873 P.2d 784, 125 Idaho 530
Opinion Judge:McDEVITT, Chief Justice. JOHNSON,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Timothy Alan DUNLAP, Defendant-Appellant.
Attorney:Whittier, McDougall, Souza, Murray & Clark, Chartered, Pocatello, for defendant-appellant. Monte R. Whittier, argued. Larry EchoHawk, Atty. Gen., and Lynn E. Thomas (argued), Deputy Atty. Gen., Boise, for plaintiff-respondent.
Case Date:July 27, 1993
Court:Supreme Court of Idaho
 
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Page 784

873 P.2d 784 (Idaho 1993)

125 Idaho 530

STATE of Idaho, Plaintiff-Respondent,

v.

Timothy Alan DUNLAP, Defendant-Appellant.

No. 19928.

Supreme Court of Idaho, Twin Falls.

July 27, 1993

Rehearing Denied Sept. 28, 1993.

Page 785

[125 Idaho 531] Whittier, McDougall, Souza, Murray & Clark, Chartered, Pocatello, for defendant-appellant. Monte R. Whittier, argued.

Larry EchoHawk, Atty. Gen., and Lynn E. Thomas (argued), Deputy Atty. Gen., Boise, for plaintiff-respondent.

McDEVITT, Chief Justice.

BACKGROUND

On October 16, 1991, Dunlap entered and robbed the Security State Bank in Soda Springs, Idaho. In the course of the robbery, Dunlap shot and killed Tonya Crane ("Crane"), a bank teller, with a close-range shotgun blast to her chest. Dunlap fled the scene, but subsequently surrendered to police officers. A criminal information was filed against Dunlap on November 15, 1991, charging him with first degree murder, robbery, use of a firearm in the commission of a murder, and use of a firearm in the commission of a robbery.

On December 30, 1991, the State and Dunlap entered into a plea bargain agreement which was accepted by the district court. In the agreement, the State dropped the robbery and use of a firearm in the commission of a robbery charges, and Dunlap pled guilty to first degree murder and use of a firearm in the commission of a murder. Although Dunlap pled guilty to first degree murder, the district court specified that Dunlap's plea did not admit that he had a specific intent to kill at the time the bank robbery took place. The plea agreement allowed the State to seek the death penalty and it was made clear in the agreement that the State would seek the death penalty.

The plea agreement also recognized that Dunlap had been indicted in the October 6, 1991, killing of Belinda Bolanos ("Bolanos") in Ohio. Dunlap agreed that the Ohio indictment, information, witness statements, and evidence could be submitted to the district court through the presentence report and could be considered by the district court as evidence in aggravation. Dunlap also agreed not to object to the Ohio information, witness statements, or evidence except on the basis that he had not been convicted of the Ohio crime at the time of the agreement. In return, the State agreed not to call as a witness at sentencing any Ohio state police officer, forensic pathologist, or other Ohio law enforcement official. Nor would the State introduce any pictures of Bolanos taken by Ohio law enforcement authorities after her death.

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[125 Idaho 532] Prior to sentencing, Dunlap filed a motion in limine to exclude at sentencing any evidence of the Bolanos killing. Dunlap argued that because he had not been convicted of any crime in Ohio, such evidence was irrelevant, prejudicial, and would violate his right to due process by determining his guilt in the Bolanos killing without the benefit of a trial. The district court disagreed and denied Dunlap's motion.

The sentencing hearing was held on March 31, 1992, and on April 19, 1992, the district court filed its "Findings of the Court in Considering Death Penalty under Idaho Code § 19-2515 and Imposition of Sentence," sentencing Dunlap to death. Pursuant to I.C. § 19-2515, the district court found two aggravating circumstances to exist beyond a reasonable doubt, which considered individually, were not outweighed by all of the mitigating evidence. The aggravating circumstances found by the district court include: (1) that the murder was a felony murder committed with the specific intent to cause the death of a human being, I.C. § 19-2515(g)(7); and (2) that Dunlap, by prior conduct, or conduct in the commission of the murder at hand, exhibited a propensity to commit murder which will probably constitute a continuing threat to society, I.C. § 19-2515(g)(8). 1

Dunlap appeals from the trial court's sentence, raising the following issues:

1. Whether the trial court erred in determining that the aggravating circumstance listed at I.C. § 19-2515(g)(7) existed beyond a reasonable doubt.

2. Whether the trial court erred in determining that the aggravating circumstance listed at I.C. § 19-2515(g)(8) existed beyond a reasonable doubt.

3. Whether I.C. § 19-2515(g)(8) is unconstitutionally vague.

4. Whether I.C. § 19-2515(c) is unconstitutional.

5. Whether the trial court erred by failing to give more weight to certain mitigating factors upon sentencing.

In addition to these issues we also independently review the sentence of death as required by I.C. § 19-2827.

I.

I.C. § 19-2515(g)(7)

Idaho Code § 19-2515(g)(7) states that a statutory aggravating circumstance will exist when "[t]he murder was one defined as murder of the first degree by section 18-4003, Idaho Code, subsections (b), (c), (d), (e) or (f), and it was accompanied with the specific intent to cause the death of a human being." In this case, the district court found the (g)(7) aggravating circumstance to exist beyond a reasonable doubt based on I.C. § 18-4003(d), 2 stating:

The facts of the killing demonstrated that the defendant entered the bank with a preconceived plan, demanded the money, received it, and shot the victim--all in approximately thirty seconds. Further the victim herself made no sudden moves and activated no alarms. The defendant admitted that he intended to shoot the victim, that he had sawed off the shotgun with the intent to use it in criminal activity, and that he knew the effect of sawing off the shotgun and the effect of using low load shotgun shells. He told jail inmates that with this low load he knew the shot would kill the victim, regardless, but she would

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[125 Idaho 533] die more slowly. He fired his weapon eighteen inches to two feet from the victim's abdomen.

Additionally, testing performed for the State indicates that the trigger pull of this weapon was at least seven pounds, and, therefore, would not, under circumstances described, have been accidentally discharged. Further, the defendant has indicated that he committed the killing because Tonya Crane "had to die" and "to teach her a lesson." He has also indicated that he shot her to create a diversion. The defendant further related to inmates of the Bingham County Jail that he intended to kill Tonya Crane when he robbed the bank. Finally, Dr. Estess testified that it was his opinion that Timothy Dunlap entered the bank with the intent to kill rather than to rob. It was the Doctor's opinion that the killing provided the defendant with emotional gratification and that he picked this particular victim because she was vulnerable and easy to kill.

. . . . .

The law judges intent by objective standards. Persons of reasonable experience and intelligence would expect death as the natural consequence of a shooting under these circumstances. To purchase and modify a shotgun, to enter a bank with an abundance of ammunition, to then discharge the gun directly at a person from a range of less than two feet, all denotes specific intent. Dunlap admits intending to shoot and intending to wound. To claim under these circumstances a lack of intent to kill is ludicrous.

Therefore, the overwhelming evidence of this case demonstrates by any objective standard that the State has proved beyond a reasonable doubt the defendant had the specific intent to cause death to a human being when he shot and killed Tonya Crane.

Dunlap raises two arguments regarding the district court's findings. First, Dunlap argues that the district court used the wrong standard in finding that Dunlap had the specific intent to kill, and second, that the evidence does not support a finding beyond a reasonable doubt that Dunlap had the specific intent to kill when he shot Tonya Crane. We address each of Dunlap's arguments in turn.

Regarding the standard by which the district court is to determine specific intent to kill, Dunlap argues that the district court failed to differentiate between the premeditation that normally accompanies the act of first degree murder with the element of specific intent to kill, which is required to prove the aggravating circumstance of I.C. § 19-2515(g)(7). Because murder is defined as "the unlawful killing of a human being with malice aforethought," I.C. § 18-4001, Dunlap maintains that the specific intent to kill language contained in I.C. § 19-2515(g)(7) requires a finding of "heightened premeditation" by the trial court.

In support of his argument, Dunlap cites various Florida cases. See Porter v. State, 564 So.2d 1060 (Fla.1990); Pardo v. State, 563 So.2d 77 (Fla.1990); Hamblen v. State, 527 So.2d 800 (Fla.1988). However, the Florida cases are not interpreting an aggravating condition similar to that found in I.C. § 19-2515(g)(7). Rather, the aggravating circumstance in those cases is whether the murder was committed in a cold, calculated, and premeditated manner without any moral or legal justification. See Fla.Stat. § 921.141(5)(i). Furthermore, Florida imposes the "heightened premeditation" requirement because premeditation is already an element of capital murder in Florida. The Florida Supreme Court stated in Porter:

Since premeditation already is an element of capital murder in Florida, section 921.141(5)(i) must have a different meaning; otherwise, it would apply to every premeditated murder. Therefore, section 921.141(5)(i) must apply to murders more cold-blooded, more ruthless, and more plotting than the ordinary reprehensible crime of premeditated first-degree murder. (Footnotes omitted.)

564 So.2d at 1064. Such is not the case in Idaho. Under I.C. § 18-4003(d), "malice aforethought" is satisfied by the fact that the killing was committed in the perpetration of the felony. State v. Lankford, 116 Idaho 860,

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[125 Idaho 534] 781 P.2d 197 (198...

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