State v. Fetterly

Decision Date28 October 1985
Docket NumberNo. 15419,15419
Citation109 Idaho 766,710 P.2d 1202
PartiesSTATE of Idaho, Plaintiff-respondent, v. Donald Kenneth FETTERLY, Defendant-appellant.
CourtIdaho Supreme Court

Van G. Bishop, Nampa, for defendant-appellant.

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

BAKES, Justice.

Appellant Donald Fetterly appeals from a conviction for first degree murder and the imposition of the death penalty.

On September 7, 1983, Sterling Grammer was stabbed to death in Caldwell. Five days later, Donald Fetterly and Karla Windsor were charged with first degree murder, robbery, and use of a deadly weapon.

The record reflects that Fetterly had become acquainted with the victim through Fetterly's ex-mother-in-law, Violet Hogan. On the evening of September 6, 1983, Fetterly and Windsor entered Grammer's home intending to steal Grammer's personal belongings. They remained in Grammer's home until Grammer returned the following morning. Although it is somewhat unclear what events transpired following Grammer's return, Grammer's hands were eventually taped behind his back. Grammer's feet were also taped together, and duct tape was wrapped about his face. Grammer was then stabbed repeatedly. Grammer's lifeless body was dumped into the Snake River, where it was found on September 9, 1983. Fetterly and Windsor took Grammer's car, pickup truck, and other personal items. Some of these items were later sold by Fetterly and Windsor.

On September 10, 1983, Fetterly and Windsor were apprehended while driving Grammer's truck.

Since Fetterly and Windsor had also previously been seen driving Grammer's car, Windsor was asked to reveal the location of Grammer's car. Windsor was questioned as to the location of Grammer's car prior to being read her Miranda rights. After being questioned as to the location of the car, Windsor asked to see Fetterly. The two defendants then talked to each other and agreed to make a joint statement. A Miranda warning was read to each of the defendants prior to their making this statement. In the statement Fetterly admitted killing Grammer, but claimed that he could not remember actually stabbing Grammer.

The defendants' trial was set for December 12, 1983. Prior to trial the case received extensive newspaper coverage which contained details of the crime and the relationship between Fetterly and Windsor. The extensive coverage also contained information as to Fetterly's and Windsor's previous arrest for fraudulent use of a credit card, an outstanding warrant against Fetterly for writing a check with insufficient funds, the probable motive for Grammer's murder, and the opinion of the Canyon County prosecuting attorney as to the credibility and validity of the evidence. Fetterly filed a motion for change of venue or, in the alternative, a motion for selection of a jury from a county other than Canyon. Each motion focused on the extensive pretrial publicity given the case, alleging that the publicity would deny Fetterly a fair trial. Both motions were denied by the trial court.

Several other pretrial motions were filed, including a motion to sever the trial of the two defendants, a motion to suppress Fetterly's statements, and a motion to suppress Fetterly's prior criminal record. Additionally, a motion was made to sever Windsor's defense from Fetterly's due to a conflict of interest. The court granted the motions to sever the trial, to suppress Fetterly's criminal record, and to allow withdrawal of counsel from Windsor's defense. The motion to suppress Fetterly's statement was denied.

On December 7, 1983, five days before trial, Fetterly made motions to compel discovery and for a continuance. At this time, Fetterly alleged that forensic lab reports had not yet been made available to the defense. Arguments on this motion were set for December 9, 1983. By December 9, 1983, Fetterly had received the requested reports. The motion to continue was denied. Jury selection then began on December 12, 1983.

On December 15, 1983, the jury returned a verdict finding Fetterly guilty of burglary, grand theft, and first degree murder. In finding Fetterly guilty of first degree murder, the jury found both first degree murder with premeditationand first degree murder I.C. § 18-4003, under the felony murder statute.

On January 11, 1984, a psychological examination of Fetterly was ordered. Notice of intent to seek the death penalty was filed January 31, 1984. An aggravation and mitigation hearing was held on February 23, 1984. On February 24, 1984, Fetterly was sentenced to death for first degree murder and given an indeterminate five-year sentence for burglary and an indeterminate fourteen-year sentence for grand theft, to be served consecutively. A death warrant and findings were filed pursuant to I.C. § 19-2515. Fetterly appeals the judgment of conviction and the death sentence.


Fetterly contends that the trial court abused its discretion in denying his motion for a change of venue. Fetterly maintains that the extensive publicity prior to trial deprived him of the opportunity to be tried before an impartial jury. We disagree.

The decision as to whether or not to grant a motion for a change of venue lies within the discretion of the trial court. State v. Thomas, 94 Idaho 430, 432, 489 P.2d 1310, 1312 (1971); State v. Bitz, 93 Idaho 239, 242, 460 P.2d 374, 377 (1969). "[W]here it appears that the defendant actually received a fair trial and that there was no difficulty experienced in selecting a jury, refusal to grant a change of venue is not a ground for reversal." State v. Thomas, 94 Idaho at 432, 489 P.2d at 1312.

In determining whether a criminal defendant received a fair trial, this Court will consider

"affidavits indicating prejudice or an absence of prejudice in the community where the defendant was tried, testimony of the jurors at voir dire as to whether they had formed an opinion of the defendant's guilt or innocence based upon adverse pretrial publicity, whether the defendant challenged for cause any of the jurors finally selected, the nature and content of the pretrial publicity, and the amount of time elapsed from the time of the pretrial publicity to the trial itself." State v. Bainbridge, 108 Idaho 273, 698 P.2d 335 (1985) (quoting from State v. Needs, 99 Idaho 883, 890, 591 P.2d 130, 137 (1979) ) (footnotes omitted).

No affidavits indicating prejudice or an absence of prejudice in the community were submitted. During voir dire each juror was extensively questioned to determine the degree of their exposure to the pretrial publicity. Those jurors who had been exposed to the publicity were further questioned to determine if they had formed an opinion as to the guilt or innocence of the defendant.

The record reflects that Fetterly did not challenge for cause any of the jurors finally selected, nor did Fetterly use all of his peremptory challenges. Waiver of peremptory challenges has been found to indicate satisfaction with the panel chosen. See State v. Brooks, 103 Idaho 892, 899, 655 P.2d 99, 105 (Ct.App.1982). The district court did not err in denying Fetterly's motion for a change of venue. 1


Fetterly contends that the trial court abused its discretion by denying his motion for a continuance. This argument is an extension of his change of venue argument. Fetterly argues that the trial judge should have granted a continuance to allow the harmful press coverage to dissipate. However, as stated above, there is every indication that an impartial jury was empaneled and that Fetterly received a fair trial. Accordingly, the trial judge did not abuse his discretion by refusing to reschedule the trial.

Fetterly also argues that a continuance should have been granted because his defense was prejudiced by the delayed discovery of laboratory reports and the trial court's failure to rule upon the admissibility of his confession until shortly before the trial. His argument essentially is that since he did not know until shortly before trial that his confession was going to be admitted, "the physical evidence and laboratory results would have been absolutely critical to tying the defendant to the apartment of the deceased...."

However, the defendant has not set out any particular claim of physical evidence or laboratory results which were denied him. There were no state or federal lab reports introduced as exhibits at trial, and the only forensic laboratory technician who testified was a state employee, Pamela Server, who testified that the duct tape removed from the victim had been taken from rolls of duct tape found in the victim's bedroom, and various items belonging to the victim had Type O blood on them. It was never established at trial whether or not the victim Grammer had Type O blood, and that fact was of no significance at the trial. Further, in the defendant's confession, which the trial court found to be admissible, he admitted that he used the victim's own duct tape which he found on the premises to bind the victim's hands and feet prior to stabbing him to death with a knife. There has been no showing how the failure to produce essentially unidentified scientific laboratory reports until shortly before trial impaired the defendant's ability to prepare his defense. Accordingly, we find no error resulted from the trial court's refusal to grant a continuance because of the alleged delayed discovery.


Although Fetterly acknowledges that he was read his Miranda rights prior to making the joint statement, Fetterly alleges that Windsor was questioned prior to being read her Miranda rights. He argues that Windsor was thus coerced into agreeing to make a joint statement. Fetterly concludes that this stream of events brought psychological pressure to bear on him, inducing him to agree to make the joint statement after talking with Windsor.

The defendant's argument lacks merit for at least two reasons. First, there is...

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36 cases
  • State v. Pina, Docket No. 34192 (Idaho 3/18/2010)
    • United States
    • Idaho Supreme Court
    • March 18, 2010 common law. Hokenson did not involve application of the felony-murder rule to co-conspirators or co-felons. In State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985), this Court applied the felony murder rule to a death that occurred during the perpetration of a burglary. This Court, usi......
  • State v. Lankford
    • United States
    • Idaho Supreme Court
    • July 3, 2017
    ...died, whether the victim's personal property is taken before or after the death occurs is immaterial. See State v. Fetterly , 109 Idaho 766, 771–72, 710 P.2d 1202, 1207–08 (1986) (holding that a burglary continued after the victim was killed and until the victim's possessions were removed f......
  • State v. Windsor
    • United States
    • Idaho Supreme Court
    • December 19, 1985
    ...was murdered and, therefore, that it was error to instruct on felony murder. We addressed the same issue in State v. Fetterly, 109 Idaho 766, 710 P.2d 1202, 1297-1298 (1985), wherein we held that such a narrow construction would deprive the felony murder rule of any validity unless the vict......
  • State v. Lankford
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    • Idaho Supreme Court
    • July 29, 1987
    ...and State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985), State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), and State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985). The majority opinion, however, contains surprising little informing the reader as to what dispositions were made in the......
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