State v. Fetterly

• Decision Date: 09 September 1988
• Docket Number: Nos. 16540,16541,s. 16540
• Citation: 115 Idaho 231,766 P.2d 701
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Donald Kenneth FETTERLY, Defendant-Appellant. Donald Kenneth FETTERLY, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Supreme Court

Page 701

766 P.2d 701

115 Idaho 231

STATE of Idaho, Plaintiff-Respondent, v. Donald Kenneth FETTERLY, Defendant-Appellant.

Donald Kenneth FETTERLY, Petitioner-Appellant, v. STATE of Idaho, Respondent.

Nos. 16540, 16541.

Supreme Court of Idaho.

Sept. 9, 1988.

Dissent on Denial of Rehearing Dec. 13, 1988.

Van G. Bishop, Nampa, for plaintiff-respondent.

Jim Jones, Atty. Gen., and Lynn E. Thomas, Sol. Gen., Boise (argued), for defendant-respondent.

BISTLINE, Justice.

Donald Kenneth Fetterly was convicted of first degree murder, burglary, and grand theft. The trial judge sentenced him to death. His conviction and sentence were affirmed on direct appeal. State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1986). Fetterly now contends that the district court erred in (a) denying his petition for post conviction relief, (b) denying his Rule 35 motion for a reduced sentence, and (3) in denying his Rule 25 motion to disqualify the trial judge from post conviction proceedings. In State v. Beam, 115 Idaho 208, 766 P.2d 678 (1988), the appellant advanced very similar arguments where were rejected by this Court. On the basis of that authority we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Fetterly was convicted of first degree murder, burglary, and grand theft. His co-defendant, Karla Windsor, was convicted of the same. Judge Lodge sentenced both to death. Windsor's conviction was affirmed but this Court held that the death sentence was excessive and disproportionate, and therefore vacated the death sentenced and remanded for resentencing. State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1986). Thereafter, Judge Lodge disqualified himself from further proceedings in Windsor. Judge Lodge reasoned that:

[I]t was and still is the conclusion of this court that these mitigating facts do not outweigh the aggravating facts.... Therefore it is the decision of this court to respectfully disqualify myself from any further involvement in these matters.

R., at 127(j).

Fetterly then moved to disqualify Judge Lodge from considering his post conviction petition and Rule 35 motion on the ground that being unable to apply the mandate of this Court in Windsor, Judge Lodge could not fairly dispose of the contention that proportionality required the reduction of Fetterly's sentence. The motion was denied.

The primary thrust of Fetterly's Rule 35 motion was that the death sentence imposed by Judge Lodge was not proportional in light of Windsor, supra, and State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1986). In regard to the post conviction petition, Fetterly argued that the 42-day limit imposed to proceed with a post conviction proceeding in capital cases, as opposed to the five year limit in non-capital felony cases, violates equal protection. The Rule 35 motion and the petition for post conviction relief were denied.

II. THE PETITION FOR POST CONVICTION RELIEF

A. THE RES JUDICATA RULING

Fetterly urged numerous grounds for reversal in his petition for post conviction relief. ¹ The district judge held that the issues raised in the petition were barred because of the res judicata effect of Fetterly's direct appeal. State v. Fetterly, supra.

An application for post conviction relief is a special proceeding, civil in nature, distinct from the criminal proceeding which led to the conviction. State v. Beam, supra, 115 Idaho at 210, 766 P.2d at 680, citing Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986). Because the issues raised in the petition for post conviction relief were adjudicated on direct appeal, State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1986), we find no error in the district court's res judicata ruling. See Kraft v. State, 100 Idaho 671, 673, 603 P.2d 1005, 1007 (1979) (former adjudication concludes parties and privies as "to every matter offered and received.").

B. NEW AUTHORITY FROM THE SUPREME COURT OF THE UNITED STATES

In regard to the Miranda issue raised on direct appeal, Fetterly contends that two new U.S. Supreme Court cases mandate a reversal of his conviction. On Fetterly's direct appeal, this Court held that unwarned but uncoercive questioning of Windsor made outside the presence of Fetterly, after which time Windsor conferred with Fetterly, resulting in an inculpatory joint statement, did not disable Fetterly from waiving his rights and confessing after he had been given his Miranda warnings. State v. Fetterly, supra, 109 Idaho at 770, 710 P.2d at 1206.

Prior to his arrest for murder, Fetterly and Windsor had been charged with fraudulent use of a credit card. A public defender was appointed to represent them, both posted bail and were released. Fetterly now contends that he could not waive his Miranda rights as to the murder charge because his sixth amendment right to counsel had attached on the fraud charge. In support he relies on two new U.S. Supreme Court cases, Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), and Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). These cases are clearly inapposite. In Moulton, the defendant retained counsel after the state initiated criminal charges. Subsequently, the police elicited incriminating statements from the defendant through an undercover informant, which were admitted in evidence at trial. The Supreme Court reversed the conviction, holding that the "Sixth Amendment is violated when the state obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent." 106 S.Ct. at 487.

Fetterly, however, misses the point of the decision. Moulton would apply if the incriminating statements resulting from questions after his murder arrest were used against him on the fraud charge. The converse is not true: the right to counsel had not yet attached on the murder charge. As Justice Brennan noted, "Incriminating statements pertaining to other crimes [here, murder], as to which the sixth amendment right has not attached, are, of course, admissible at a trial of those offenses." 106 S.Ct. at 490, n. 16.

In Jackson the Court held that if police initiate interrogation after the defendant's assertion of his right to counsel, any subsequent waiver of the right is invalid. 106 S.Ct. at 1411. However, Fetterly did not assert his right to counsel on the murder charge. Thus, just because he asserted his right to counsel three days earlier on a fraud charge, he cannot bootstrap that assertion to the murder charge. Consequently, contrary to Fetterly's contentions, the new sixth amendment cases from the Supreme Court of the United States do not mandate reversal. ²

III. THE MOTION TO DISQUALIFY

Fetterly, like Beam, argues that the trial judge should have disqualified himself from presiding over the post conviction proceeding and the I.C.R. 35 motion for reduction in sentence. Whereas Beam based his claim of bias on the trial judge's refusal to sentence Beam's co-defendant Scroggins upon remand after this Court found Scroggins' death sentence excessive and disproportionate, ³ Fetterly bases his claim on the trial judge's refusal to sentence his co-defendant Windsor on remand after this Court found Windsor's death sentence excessive and disproportionate. ⁴

In Beam it was stated:

Every trial judge who rules upon a post conviction review proceeding or an I.C.R. 35 motion to reduce sentence will previously have pre-judged the matter, often formed extremely strong opinions as to the sentence which should be imposed, and will no doubt be convinced that the procedure followed and the sentence imposed was correct, particularly where the trial court proceedings have been affirmed on appeal by this Court. It would be an unusual case in which a trial judge, when called upon to rule on an I.C.R. 35 motion to reduce sentence, would not approach the case on the basis that the sentence imposed was correct, and require the defendant to shoulder "the burden of showing the original sentence was unusually severe." State v. Martinez, 113 Idaho 535, 536, 746 P.2d 994, 995 (1987). Coming to the case with that frame of mind does not constitute bias or prejudice within the meaning of I.C.R. 25(b)(4) and does not require disqualification of the trial judge. In this case the judge in question had presided at the trial of both Beam and Scroggins. He had heard all of the evidence of this brutal murder and raping of an innocent thirteen year old girl. He had presided at the sentencing proceedings in which extensive mitigation and aggravation evidence was presented to the court. Based upon all of that evidence, the trial court had arrived at the judgment that the aggravating circumstances outweighed the mitigating circumstances and served for only the most heinous of first degree murders. The very nature of the sentencing process in capital cases requires a trial judge to form strong opinions and convictions that the defendant merits the most severe penalty. It would be extremely unlikely and no doubt improper for a trial court to impose a death penalty unless it had formed the strong opinion and belief that the defendant had no redeeming features, and that the circumstances of the particular case justified the imposition of this most serious penalty known to the law. Accordingly, when a trial judge is called upon to rule upon a petition for post conviction relief, or a motion for reduction of sentence under I.C.R. 35, particularly in a case where the death penalty has been imposed, he comes to the case after having already formed strong opinions and beliefs regarding the atrocious nature of the crime, the unredeemable character of the defendant, and the need of society to impose this most serious of criminal penalties. A trial court is not required to erase from his mind all that has gone before, and indeed, it is doubtful that any human being could. Rather, when faced with an I.C.R. 25(b)(4) motion to disqualify for bias and prejudice in a post...