Sivak v. State, 15864

Citation731 P.2d 192,112 Idaho 197
Decision Date19 November 1986
Docket NumberNo. 15864,15864
PartiesLacey M. SIVAK, Petitioner-Appellant, v. The STATE of Idaho, Respondent.
CourtUnited States State Supreme Court of Idaho

[112 Idaho 199] David Z. Nevin, Boise, and Alan E. Trimming, of Ada County Public Defender's Office, Boise, for petitioner-appellant.

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

DONALDSON, Chief Justice.

In 1981, Lacey M. Sivak and his co-defendant Randall Bainbridge were convicted of murdering an attendant at a gas station in Garden City, Idaho. He was also convicted of robbery and using a firearm in the commission of a felony. Sivak was sentenced to death. Sivak's convictions and sentence were affirmed on appeal. State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), cert. den., 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984).

Sivak then filed his petition for post-conviction relief on September 24, 1984, alleging numerous points of error in proceedings leading to his conviction and sentence and their affirmance on appeal. After a hearing, the district court found Sivak's arguments to be without merit and dismissed the petition.

Sivak now appeals and raises the following arguments based on both the United States and the Idaho Constitutions. We will address additional facts as they arise in the context of each issue below.

I

When the appeal of Sivak's conviction and sentence came before this Court originally, we vacated the sentence and remanded the case to the district court to remedy a serious error that had occurred at the time the original judgment and sentence was imposed on the defendant. That error occurred when the district judge's written findings of fact and conclusions of law were delivered to Sivak and his counsel without the benefit of an open court hearing. I.C. § 19-2503 and I.C.R. 43(a) require that a defendant's sentence be given in open court with the defendant and his counsel present. We therefore ordered the district court to comply with the requirements of I.C. § 19-2503 and I.C.R. 43(a). In our order, issued May 24, 1983, we stated:

"NOW, THEREFORE, IT IS HEREBY ORDERED that the sentence of death imposed upon the defendant in the absence of the defendant [be] remanded to the Honorable Robert Newhouse, District Judge of the Fourth Judicial District of the State of Idaho, Ada County, who shall within fourteen (14) days from the date of this Order, in open court and in the presence of defendant and his counsel, enter a judgment of conviction and impose such sentence upon the defendant Lacey M. Sivak as to the said District Judge may appear to be just and appropriate. In the event that said Judge shall impose a sentence of death, a warrant therefor shall issue in accordance with I.C. § 19-2705; ..."

When we ordered resentencing we did not require the district court to consider additional information which may be relevant to the mitigation of the defendant's sentence. At the time we issued our order we were unaware that any such evidence existed.

On April 4, 1983, the district court did convene a hearing in which the defendant and his counsel were present. At this hearing, Sivak's counsel brought to the attention of the court evidence that during the year and a half since Sivak had originally been sentenced, Sivak exhibited very positive and productive behavior in prison, particularly with respect to his spiritual well being. Defense counsel moved to admit this additional mitigation evidence through testimony of several witnesses, and he moved to supplement the presentence report. These motions were denied from the bench and the trial court then proceeded to simply read into the record its original findings made when it imposed the death penalty in December of 1981. The court did permit Sivak himself to address

[112 Idaho 200] the court and have his own comments incorporated into the record. The court then restated its conclusions made in December of 1981 and resentenced Sivak to the same sentence

Initially, we must point out that our intent in vacating Sivak's sentence in our order of March 24, 1983, was not merely to require that the defendant and his counsel be physically present while the court recited its findings and conclusions made over a year before. Inherent in the order that the district judge "impose such sentence upon the defendant Lacey M. Sivak as to the said District Judge may appear to be just and appropriate," was the obligation of the judge not to ignore any relevant motions or arguments made by the defendant or his counsel which would affect the justness and appropriateness of the sentence.

A review of the record and the precedent of the United States Supreme Court on the critical importance of mitigation evidence to the imposition of the death sentence, leads this Court to the inexorable conclusion that it was error of the district judge to refuse to hear any of the defendant's mitigation evidence offered at the April 4, 1983 hearing. We must, therefore, remand this case back to the district court once again for a resentencing that is consistent with the dictates of the defendant's constitutional rights. Our conclusion today is based on the principles established in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) and their application in a context very similar to the present case in the case of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).

In Lockett, the United States Supreme Court reversed and remanded a death sentence because Ohio's death penalty statute did not permit individualized consideration of a broad range of mitigating factors as required by the eighth and fourteenth amendments to the U.S. Constitution. The court reiterated the principle from Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), that "in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender" in addition to the circumstances of the particular offense "as a constitutionally indispensable part of the process of inflicting the penalty of death." Lockett, supra, 438 U.S. at 603, 98 S.Ct. at 2964; Woodson, supra 428 U.S. at 304, 96 S.Ct. 2991.

The court then applied that principle to hold that:

"The Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital cases, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. We recognize that, in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes. The considerations that account for the wide acceptance of individualization of sentence in noncapital cases surely cannot be thought less important in capital cases. Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with a degree of respect due the uniqueness of the individual is far more important than in noncapital cases. A variety of flexible techniques--probation, parole, work furloughs, to name a few--and various post-conviction remedies may be available to modify an initial sentence of confinement in noncapital cases. The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence." Lockett, supra 438 U.S. at 604-605, 98 S.Ct. at 2964-65. (Emphasis in original and added.)

[112 Idaho 201] In Eddings, the Oklahoma capital sentencing statutes permitted the sentencing judge to consider "any mitigating circumstances" presented by the defendant, but the judge in that case refused to consider in mitigation the circumstances of the defendant's unhappy upbringing and emotional disturbances. 1 The Court stated, "[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence." Eddings, supra 455 U.S. at 114-15; 102 S.Ct. at 876-77. The court then noted that the sentencing judge and the appellate court on review, "may determine the weight to given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration." Id. at 114-15; 102 S.Ct. at 877.

The Supreme Court concluded that the sentencing judge's refusal to consider the defendant's proffered mitigation evidence was in violation of the eighth and fourteenth amendments, and the law as established in Woodson and Lockett. Therefore, the case was remanded for resentencing and the court directed that "on remand, the state courts must consider all relevant mitigating evidence and weigh it against the evidence of the aggravating circumstances." Id. at 117; 102 S.Ct. at 878.

In State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), cert. den., 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984), we held that "[t]he open ended allowance of mitigating evidence provides the defendant with the opportunity to present every possible justification for a sentence of less than death." Id. 105 Idaho at 369, 670 P.2d at 729. We noted that such an unlimited mitigation provision as is provided under Idaho's capital sentencing statute was approved in Eddings.

Both Lockett and Eddings established the vital importance of requiring the sentencer to consider any evidence proffered by the defendant which tends to mitigate against the justness or...

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