State v. Leavitt

• Decision Date: 05 June 2012
• Docket Number: No. 39941.,39941.
• Court: Idaho Supreme Court
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Richard A. LEAVITT, Defendant–Appellant.

153 Idaho 142

280 P.3d 169

STATE of Idaho, Plaintiff–Respondent,

v.Richard A. LEAVITT, Defendant–Appellant.

No. 39941.

Supreme Court of Idaho, Boise, June 2012 Term.

June 5, 2012.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. L. LaMont Anderson argued.

Nevin, Benjamin, McKay & Bartlett, LLP, Boise, and Andrew Parnes, Ketchum, for Appellant. David Nevin argued.

W. JONES, Justice.

I. NATURE OF THE CASE

Appellant, Richard A. Leavitt appeals from District Judge Shindurling's issuance of a death warrant entered on May 17, 2012. Leavitt also appeals from the district court's Order Denying the Motion to Quash the Death Warrant. Both appeals raised the same issues and will be addressed concurrently in this Opinion.

II. FACTUAL AND PROCEDURAL BACKGROUND

In 1984, Leavitt brutally attacked, sexually mutilated, and murdered a 31 year-old woman, Danette Elg, in Blackfoot, Idaho. In 1985, a jury found Leavitt guilty of first-degree murder for the killing of Danette Elg. The district court held a sentencing hearing and imposed the death sentence. In 1986, Leavitt filed a petition for post-conviction relief, which was denied by the district court. In 1989, this Court affirmed Leavitt's conviction, but reversed his death sentence because the trial court failed to adequately weigh all the mitigating factors against the statutory aggravating factor that the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity. On remand, the district court held another sentencing hearing and found that all of the mitigating factors did not outweigh the single aggravating factor that the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity. Therefore, the district court again sentenced Leavitt to death. Leavitt appealed to this Court, arguing that his constitutional rights were violated because the judge, and not a jury, made the determination regarding whether the mitigating circumstances outweighed the aggravating nature of the crime. This Court upheld Leavitt's death sentence in 1992.

The district court issued a death warrant on February 5, 1992, scheduling the date of execution for February 28, 1992. Leavitt filed a motion to stay the death warrant, which was denied by this Court. The next day, Leavitt requested a stay from the Supreme Court of the United States. On February 25, 1992, the Supreme Court of the United States granted Leavitt's stay of execution. The stay expired upon the Supreme Court's denial of certiorari on November 9, 1992. For reasons unknown, the State did not request a new death warrant until recently.

In 1993, Leavitt filed a Petition for Writ of Habeas Corpus in the United States District Court for the District of Idaho. In 2000, Judge Winmill granted habeas relief because of an improper jury instruction and ordered the State to retry Leavitt within 120 days. The State appealed and the United States Court of Appeals for the Ninth Circuit reversed Judge Winmill's order, holding that federal courts are procedurally barred from granting relief based upon an erroneous jury instruction. The United States Court of Appeals for the Ninth Circuit remanded the case to determine whether Leavitt's resentencing hearing in 1989 violated his constitutional rights. On remand, in 2007, Judge Winmill again granted habeas relief enjoining the State from imposing a death sentence unless a new sentencing hearing was given. The State appealed and in 2011, the United States Court of Appeals for the Ninth Circuit reversed Judge Winmill's decision. On May 11, 2012, Leavitt filed a Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b) in the United States District Court. On May 14, 2012, the Supreme Court of the United States denied Leavitt's Petition for Certiorari. On May 16, 2012, the United States Court of Appeals for the Ninth Circuit issued a mandate automatically lifting any stay previously imposed by Judge Winmill. On June 1, 2012, Judge Winmill denied by order Leavitt's Motion for Relief from Judgment and denied Leavitt's request for a stay of execution. Leavitt's appeal of this order is presently pending before the United States Court of Appeals for the Ninth Circuit.

Anticipating the issuance of a new death warrant, on May 15, 2012, Leavitt filed a Notice of Demand for Opportunity to be Heard regarding the Issuance of the Death Warrant in district court. On May 17, 2012, LaMont Anderson, Deputy Attorney General for the State of Idaho, traveled to Blackfoot, Idaho and asked Judge Shindurling to issue a new death warrant. In Leavitt's motion, he conceded that no stay of execution was in place and that a sentence of death existed, but argued that the court should not issue a death warrant because of Leavitt's pending motion in federal court. At 10:50 a.m. on May 17, 2012, the district court denied the motion based upon Leavitt's failure to show that a stay of execution existed or dispute the existence of the death sentence. In explaining the denial of Leavitt's motion, Judge Shindurling based his decision upon Idaho Code section 19–2715(5) and stated "[f]urther action by this court is ministerial only and ‘[n]o hearing shall be required for setting a new execution date and the court shall inquire only into the fact of an existing death sentence and the absence of a valid stay of execution.’ " Then, Judge Shindurling signed the death warrant, which was filed at approximately 11:28 a.m. The death warrant scheduled Leavitt's execution for June 12, 2012.

On May 18, 2012, Leavitt filed a Motion for Reconsideration in district court, arguing that his execution was barred by the permanent injunction of the federal court, based upon Judge Winmill's 2007 judgment granting habeas relief for Leavitt's sentencing. Judge Shindurling denied Leavitt's motion on May 21, 2012. That same day, Leavitt filed his Notice of Appeal to this Court, appealing from the issuance of the death warrant signed by Judge Shindurling on May 17, 2012, scheduling the execution for June 12, 2012. On May 23, 2012, Leavitt filed a Motion to Quash the Death Warrant in the district court. On May 29, 2012, a Verified Petition for a Peremptory Writ of Mandamus Directing the Court to Vacate the Issuance of the Death Warrant and Conduct a New Hearing was also filed by Leavitt in this Court. On May 30, 2012, Judge Shindurling held a hearing on the Motion to Quash the Death Warrant in which Leavitt's counsel attended. The district court denied Leavitt's Motion to Quash, explaining that there was no reason to quash the death warrant. On May 30, 2012, Leavitt filed a Notice of Appeal from the district court's denial of his Motion to Quash, raising the same issues that were presented in his first Notice of Appeal from the issuance of the death warrant. On May 31, 2012, the district court entered its Order Denying the Motion to Quash the Death Warrant. On May 31, 2012, this Court entered an Order Denying Leavitt's Petition for a Peremptory Writ of Mandamus.

III. ISSUES ON APPEAL

1. Whether this Court has jurisdiction over Leavitt's appeal from the issuance of the death warrant?

2. Whether the ex parte issuance of a death warrant without Leavitt's counsel present denied Leavitt his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments?

3. Whether the district court erred in failing to apply Idaho Code section 19–2715(4) and determining that the court only had jurisdiction to sign the death warrant?

4. Whether a Deputy Attorney General who has not appeared in the case has authority to apply for a death warrant before the district court?

5. Whether the issuance of the death warrant violated Idaho Criminal Rule 38(a) because review of the death sentence is still pending in the United States Court of Appeals for the Ninth Circuit?

6. Whether the district court erred in failing to make a verbatim transcript of the in-chambers proceedings in regard to the issuance of the death warrant?

IV. ANALYSIS

A. This Court Has Jurisdiction over Leavitt's Appeal from the Issuance of the Death Warrant

1. Leavitt's Appeal from the Issuance of the Death Warrant

In his first Notice of Appeal, Leavitt appealed from the issuance of a death warrant executed on May 17, 2012. The State asserts that this Court lacks jurisdiction to hear Leavitt's appeal because the issuance of a death warrant is not a final appealable order. All appeals in criminal proceedings are governed by I.A.R. 11(c). Idaho Appellate Rule 11(c) outlines the following judgments and orders as appealable:

From the following judgments and orders of the district court in a criminal action, whether or not the trial court retains jurisdiction:

(1) Final judgments of conviction.

(2) An order granting or denying a withheld judgment on a verdict or plea of guilty.

(3) An order granting a motion to dismiss an information or complaint.

(4) Any order or judgment, whenever entered and however denominated, terminating a criminal action, provided that this provision shall not authorize a new trial in any case where the constitutional guarantee against double jeopardy would otherwise prevent a second trial.

(5) Any order, however denominated, reducing a charge of criminal conduct over the objection of the prosecutor.

(6) Any judgment imposing sentence after conviction, except a sentence imposing the death penalty which shall not be appealable until the death warrant is issued as provided by statute.

(7) An order granting a motion to suppress evidence.

(8) An order granting or denying a motion for new trial.

(9) Any order made after judgment affecting the substantial rights of the defendant or the state.

(10) Decisions by the district court on criminal appeals from a magistrate, either dismissing the appeal or affirming, reversing or remanding.

Although the issuance of a death warrant is not an appealable order, we have determined, in the exercise of our discretion, to exercise this Court's plenary jurisdiction under Article 5, section 9 of the Idaho...