State v. Lindquist

Decision Date11 January 1979
Docket NumberNo. 12218,12218
Citation99 Idaho 766,589 P.2d 101
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Phillip Lewis LINDQUIST, Defendant-Appellant.
CourtIdaho Supreme Court

Allen V. Bowles, Moscow, for defendant-appellant.

Wayne L. Kidwell, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BAKES, Justice.

In January of 1976 a jury convicted defendant appellant Phillip Lewis Lindquist of the first degree murder of Joy Weitz in January of 1975. In February of 1976 the district court sentenced the defendant to death pursuant to the version of I.C. § 18-4004 then in effect, which provided "(e)very person guilty of murder in the first degree shall suffer death . . . ." Ch. 276, § 2, 1973 Idaho Sess.Laws 588. In this appeal the defendant challenges only his sentence, and this on constitutional grounds.

Subsequent to the defendant's sentencing, the United States Supreme Court decided Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), which held unconstitutional a North Carolina mandatory death penalty statute virtually identical to the Idaho statute under which this defendant was sentenced. See Woodson v. North Carolina, supra at 286, 96 S.Ct. 2978. The version of I.C. § 18-4004 in effect at the time the defendant was sentenced was unconstitutional under the holding of the United States Supreme Court in the Woodson case and the defendant's death sentence must therefore be set aside. The more difficult issue presented here is whether on resentencing the death penalty may be imposed on this defendant.

There is some authority for the proposition that when a statute is determined to be unconstitutional the former statute remains in effect as if it had never been amended. See American Independent Party in Idaho, Inc. v. Cenarrusa, 92 Idaho 356, 442 P.2d 766 (1968). However, the former statute is of no help in this case since it likewise was constitutionally defective. Prior to its amendment in 1973, I.C. § 18-4004 provided:

"Every person guilty of murder in the first degree shall suffer death or be punished by imprisonment in the state prison for life, and the jury may decide which punishment shall be inflicted."

See ch. 276, § 2, 1973 Idaho Sess.Laws 588. Though this pre-1973 statute permitted the imposition of either a sentence to death or life imprisonment, it provided no guidance to control the sentencing authority in determining who would receive the death penalty and who would receive a sentence of life imprisonment. Therefore unquestionably the pre-1973 statute violated the Eighth and Fourteenth Amendments to the United States Constitution under the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Neither is the fact that the legislature, subsequent to the defendant's crime, conviction and sentencing, has again amended I.C. § 18-4004 of any assistance here. In 1977 the legislature amended I.C. § 18-4004 by providing that "(s) ubject to the provisions of 19-2515, Idaho Code, every person guilty of murder of the first degree shall be punished by death or by imprisonment for life." Ch. 154, § 3, 1977 Idaho Sess.Laws 390. I.C. § 19-2515 was at the same time amended to require judicial inquiry into aggravating and mitigating circumstances and a finding that at least one of ten enumerated aggravating circumstances existed in order to impose a sentence of death. Ch. 154, § 4, 1977 Idaho Sess.Laws 390. I.C. § 19-2827, which requires review by the Idaho Supreme Court of any death sentence and delineates standards for that review, was also added to the Idaho Code. Ch. 154, § 5, 1977 Idaho Sess.Laws 390.

These statutes cannot be applied to this defendant. While the statutes were amended in 1977, the crime of which this defendant was tried and convicted in 1976 was committed in 1975. The legislature itself has declared that its acts are not to be applied retroactively unless expressly so declared. I.C. § 73-101; Edwards v. Walker, 95 Idaho 289, 507 P.2d 486 (1973). The 1977 act contains no such declaration, but specifically provides that it "shall be in full force and effect on and after passage and approval." It was approved March 28, 1977. Ch. 154, § 8, 1977 Idaho Sess.Laws 390.

This Court has recently had occasion to consider a similar issue in Wolf v. State, 99 Idaho 476, 583 P.2d 1011 (1978). With reference to an amendment of the statute setting forth the factors to be considered by the courts in deciding whether to waive jurisdiction under the Youth Rehabilitation Act, I.C. § 16-1801 to -1845, Chief Justice Shepard wrote: "Since this statute was enacted after the murder of Mr. Flory, the ex post facto clauses of the Idaho and federal Constitutions prohibit us from applying it to these appeals." 583 P.2d at 1015. See Idaho Const., art. 1, § 16; U.S.Const., art. 1, § 9.

We are aware that under the United States Supreme Court's recent decision in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), it is at least arguable that the provisions of the 1977 act may be applied to this defendant without violating the ex post facto clause of the United States Constitution. In Dobbert the United States Supreme Court upheld the imposition of a death sentence on a defendant who was tried and sentenced under a valid capital punishment statute even though that statute was not in effect at the time the crime was committed. In Dobbert the amendment to the statute came after the act, but before trial. 432 U.S. at 288-89, 97 S.Ct. 2290. However, unlike the circumstances in Dobbert, the defendant Lindquist was sentenced pursuant to an unconstitutional capital punishment statute. The 1977 amendments, under which the state has argued that the defendant should be resentenced, went into effect a year after the defendant brought this appeal. At least two courts have concluded that this factual distinction with Dobbert is decisive and therefore have refused to order defendants convicted and sentenced under prior constitutionally defective statutes resentenced under new statutes. Meller v. State, 581 P.2d 3 (Nev.1978); State v. Rodgers, 242 S.E.2d 215 (S.C.1978). However, we need not decide whether Dobbert is applicable to the circumstances of this case or whether the ex post facto clause of the Idaho Constitution requires a different interpretation. Well established principles of constitutional law dictate that we not unnecessarily reach those constitutional issues. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Poesy v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977). Here, our statutes themselves clearly prohibit the retroactive application of the 1977 statute to this defendant. I.C. § 73-101.

The state argues that we should construe the statute under which the defendant was sentenced in such a way that it passes constitutional muster. Both the state in its briefs and argument, and the dissenting opinion of Chief Justice Shepard, point out that the Court of Criminal Appeals of the State of Texas in the case of Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), interpreted their statute to permit the sentencing authority to consider any mitigating circumstances which the defendant might present. In turn, the Supreme Court of the United States affirmed the imposition of the death penalty in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), based upon the Texas court's authoritative construction of their murder statute. However, there is a substantial difference between the Idaho statute applicable to this case, and the Texas statute in Jurek. The Idaho statute cryptically provides that "(e)very person guilty of murder in the first degree shall suffer death," whereas the Texas statute provided that after a determination that a defendant is guilty of murder with malice, the jury, in a separate proceeding, may impose either the penalty of life or death, depending upon a consideration of three questions, one of which was whether or not "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." The Texas court in Jurek held that this statutory authorization allowed the sentencing authority to consider mitigating as well as aggravating circumstances in determining whether to impose on a defendant a sentence of life or death. Obviously there is a very real distinction between the Texas and Idaho 1 statutes, and it is the Idaho statute by which we are bound. To construe our Idaho statute as the Texas court has construed its statute would require that we ignore the manifest legislative intent that the death penalty be the mandatory punishment for first degree murder. To do so would require that we rewrite substantive statutory law. The California court, recently presented with much the same argument, concluded:

"The People argue finally that the defects in the California statutory scheme for imposition of capital punishment can be overcome by judicially mandated procedures, which this court should pronounce because the Legislature intended to write a constitutional death penalty. . . . We decline the People's invitation. They ask us not to interpret, but to rewrite the law in a manner which we have shown would be contrary to the manifest legislative intent in enacting (a mandatory death penalty statute). Decisions as to which criminal defendants shall suffer the death penalty, whether these decisions shall be made by judge or jury, whether and to what extent a jury determination is reviewable by the trial court and/or the reviewing court, and the scope of responsibility to be given this court to safeguard against arbitrary imposition of the death penalty are matters of legislative concern. Were this court to attempt to devise the necessary procedures and criteria we would not only invade the legislative province, but would...

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