State v. Lovelace

• Decision Date: 22 April 2004
• Docket Number: No. 24373, No. 26927.
• Citation: 90 P.3d 298,140 Idaho 73
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Faron E. LOVELACE, Defendant-Appellant. Faron Earl Lovelace, Petitioner-Appellant, v. State of Idaho, Respondent.
• Court: Idaho Supreme Court

90 P.3d 298

140 Idaho 73

STATE of Idaho, Plaintiff-Respondent, v. Faron E. LOVELACE, Defendant-Appellant.

Faron Earl Lovelace, Petitioner-Appellant, v. State of Idaho, Respondent.

Nos. 24373, 26927.

Supreme Court of Idaho, Boise, February 2004 Term.

April 22, 2004.

Molly J. Huskey, State Appellate Public Defender; Mark James Ackley, Deputy State Appellate Public Defender, Boise, for appellant. Mark James Ackley argued.

Hon. Lawrence G. Wasden, Attorney General; L. LaMont Anderson, Deputy Attorney General, Boise, for respondent. L. LaMont Anderson argued. BURDICK, Justice.

ON REHEARING

Following the Court's July 23, 2003, opinion affirming the conviction and remanding the case for resentencing, Lovelace and the State filed separate petitions for rehearing. This Court granted the petitions by order dated November 20, 2003. We do not revisit any of the other issues decided in the original opinion dated July 23, 2003.

ISSUES RAISED ON REHEARING

1. Did the Court improperly review Lovelace's waiver of counsel and his request for an investigator based solely on court minutes of the pretrial hearing?

2. Did the Court misinterpret Lovelace's double jeopardy argument against resentencing?

3. Did the Court err in rejecting Lovelace's ex post facto argument, in light of new case law?

4. Is any error resulting from Ring harmless in that the findings necessary to impose the death penalty may be implied from the jury's verdict of first-degree murder and first-degree kidnapping?

5. Do the provisions of I.C. § 19-5306(e) and Article I, § 22 of the Idaho Constitution provide statutory and constitutional authority for the admission of victim impact evidence in capital cases?

ANALYSIS

1. Lovelace's waiver of counsel was valid, and the district court's decision to deny Lovelace an investigator was not error.

On February 12, 2004, the Court entered an order agreeing to take judicial notice of the pretrial hearing held in the district court on July 28, 1997. Contained in the transcript of the proceedings of that date are Lovelace's request to proceed pro se and his request for an investigator.

Our review of the verbatim transcript confirms that the district judge informed Lovelace that he had a constitutional right to counsel and a constitutional right to represent himself. The district judge advised Lovelace of the dangers of self-representation and recommended against going to trial without the assistance of counsel. Before accepting Lovelace's waiver of counsel, the district court also inquired whether Lovelace had undergone any psychological testing and learned that he had been declared not only competent but also of above average intelligence. We conclude that the district court's warnings of the dangers and potential risks of self-representation were not constitutionally insufficient, as Lovelace argues. Applying the totality of the circumstances standard, we conclude that Lovelace's waiver of counsel was effected knowingly, voluntarily and intelligently.

In the original opinion on the appeal, this Court concluded that the district court acted within its discretion in denying Lovelace an investigator independent of the attorney advisor. Examination of the verbatim transcript, which has been made available for review on rehearing, does not alter our earlier conclusion. Accordingly, we affirm the district court's ruling providing for the attorney advisor to assist Lovelace with discovery and denying Lovelace's request for an investigator. See State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982)

(A denial of a request for investigative assistance will not be disturbed absent a showing that the trial court abused its discretion by rendering a decision which is clearly erroneous and unsupported by the circumstances of the case.)

2. Double Jeopardy does not bar Lovelace being resentenced to death.

In Lovelace's case, the findings necessary to impose the death sentence were made by a judge, in accordance with Idaho's capital sentencing scheme that provided for a judge to find the aggravating factors set forth at I.C. § 19-2515. This scheme was held to violate the Sixth Amendment, which entitles capital defendants, no less than non-capital defendants, to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. See Ring v. Arizona 536 U.S. 584, 604, 122 S.Ct. 2428, 2440, 153 L.Ed.2d 556, 573 (2002)

.

Subsequent to the Ring decision, the legislature revised Idaho's capital sentencing statutes, requiring that a jury find and consider the effect of aggravating and mitigating circumstances in order to decide whether a defendant should receive a death sentence. I.C. §§ 18-8004, 19-2515(3)(b).

Lovelace argues that resentencing him to death will violate the Double Jeopardy Clause. He argues that having been convicted of first-degree murder, a lesser offense of capital murder, he cannot be prosecuted for the greater offense of murder plus aggravating circumstances in a subsequent sentencing, under double jeopardy principles. He asserts that constitutional prohibitions against double jeopardy preclude the State from trying to prove to a jury in future proceedings additional elements of capital murder, in order to satisfy the prerequisites to imposition of the death penalty.

The Court in Ring concluded that the Sixth Amendment requires that aggravating factors be found by a jury "because Arizona's enumerated aggravating factors operate as the functional equivalent of an element of a greater offense." Id. at 609, 122 S.Ct. 2428 citing Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19, 120 S.Ct. 2348, 2365 n. 19, 147 L.Ed.2d 435, 457 n. 19 (2000)

. Ring therefore likened aggravating factors necessary to the imposition of the death penalty to sentence enhancements at issue in Apprendi, "which describe an increase beyond the maximum authorized statutory sentence." Id. at 605, 122 S.Ct. at 2440, 153 L.Ed.2d at 574. Citing Justice Thomas's concurrence in Apprendi, the Court in Ring reiterated:

If the legislature defines some core crime then provides for increasing the punishment of that crime upon a finding of some aggravating fact[,] ... the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime.

Id., citing Apprendi, supra at 494 n. 19

, 120 S.Ct. at 2365 n. 19,

147 L.Ed.2d at 457 n. 19 (Thomas, J., concurring).

In Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), Justice Scalia reiterated the analysis from Ring holding that aggravating circumstances that make a defendant eligible for the death penalty "operate as `the functional equivalent of an element of a greater offense.'" Id. at 111, 123 S.Ct. at 739, 154 L.Ed.2d at 599 citing Ring v. Arizona, 536 U.S. at 609, 122 S.Ct. at 2443, 153 L.Ed.2d at 576

. Characterizing "murder" as a distinct, lesser-included offense of "murder plus one or more aggravating circumstances," Justice Scalia outlined the relevance of facts or elements necessary to prove an offense to a jury, for Sixth Amendment purposes, and facts or elements necessary to determine whether a defendant is being twice tried for the same offense in violation of the Fifth Amendment's Double Jeopardy Clause. See id. The Court, albeit not a majority, announced:

In the post-Ring world, the Double Jeopardy Clause can, and must, apply to some capital-sentencing proceedings consistent with the text of the Fifth Amendment. If a jury unanimously concludes that a State has failed to meet its burden of proving the existence of one or more aggravating circumstances, double-jeopardy protections attach to that "acquittal" on the offense of "murder plus aggravating circumstance(s)." Thus, [Arizona v.] Rumsey [,467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984)] was correct to focus on whether a factfinder had made findings that constituted an "acquittal" of the aggravating circumstances; but the reason that issue was central is not that a capital-sentencing proceeding is "comparable to a trial," ... but rather that "murder plus one or more aggravating circumstances" is a separate offense from murder "simpliciter."

Sattazahn v. Pennsylvania, 537 U.S. 101 at 112, 123 S.Ct. 732 at 740, 154 L.Ed.2d 588 at 599 (plurality).

Because the sentencing judge concluded there was sufficient evidence to find three aggravating circumstances to support imposition of the death sentence, Lovelace cannot claim that he was acquitted of the greater offense of "first-degree murder plus aggravating circumstances." Applying the standard of Sattazahn, the findings of the sentencing judge do not establish that the government failed to prove one or more aggravating circumstance beyond a reasonable doubt, as they would, had the original findings been in favor of a sentence less than death. The double jeopardy protection, which bars a second prosecution on the same offense after an acquittal, is thus not implicated. See Arizona v. Rumsey, 467 U.S. 203, 211, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164, 171 (1984)

(holding that an acquittal on the merits by the sole decision-maker in the proceeding is final and bars retrial on the same charge).

The Arizona Supreme Court on remand phrased the question of whether Timothy Ring could be resentenced as whether he "was acquitted at his original trial of whatever findings were necessary to impose a death sentence." State v. Ring, 204 Ariz. 534, 65 P.3d 915, 930 (2003). Where Ring had been sentenced to death at his original trial, the Court ruled, "in no sense has a fact-finder concluded that the state failed to prove aggravating circumstances beyond a reasonable doubt." Id. at 931, 65 P.3d 915. A capital defendant whose original sentence is vacated on appeal can be resentenced to death so long as the defendant has not been "acquitted" of the death sentence. E.g. Sattazahn, 537 U.S. at 108,

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