State v. Tribe

• Decision Date: 10 May 1993
• Docket Number: No. 16936,16936
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Charles TRIBE, Defendant-Appellant. Boise, May 1992 Term
• Court: Idaho Supreme Court

Page 87

852 P.2d 87

123 Idaho 721

STATE of Idaho, Plaintiff-Respondent, v. Charles TRIBE, Defendant-Appellant.

No. 16936.

Supreme Court of Idaho,

Boise, May 1992 Term.

May 10, 1993.

Alan E. Trimming, Ada County Public Defender; Deborah A. Whipple, Deputy Public Defender, on the briefs; and Richard D. Toothman, Deputy Public Defender, argued, Boise, for defendant-appellant.

Hon. Larry EchoHawk, Atty. Gen., and Michael A. Henderson, Deputy Atty. Gen., argued, Boise, for plaintiff-respondent.

ON REHEARING

BISTLINE, Justice.

Tribe was charged with the first degree torture murder of Diana Tribe, his wife. Before trial, the district court informed the panel of prospective jurors that Tribe's case was "not a death penalty case." At the conclusion of the trial, the court instructed the jury relative to first degree murder by torture and as to second degree murder but not as to second degree murder by torture. The jury convicted him on the first degree murder charge. The district court imposed a fixed life sentence.

Tribe had admitted, as recorded in a taped interview which took place shortly after his arrest, that he hit his wife in their home on the evening of September 30, 1986, specifying that he had struck blows solely with his fists. He did not remember how many times he struck her. After striking one of his blows, he stated, she fell to the floor, and her head banged against a heating vent. At that point, Tribe called the paramedics for assistance.

Her death at the hospital was attributed to severe brain injury which was medically determined to be caused by repeated blows to the head. The evidence adduced at trial disclosed that Tribe had also physically abused her before the incident which resulted in her death.

Tribe raises four issues in his challenge to the conviction and sentence: 1) that the jury should have been instructed as to the lesser included offense of second degree murder by torture; 2) that the district court erred in declaring to the venirepersons that this was not a case involving the death penalty; 3) that the evidence was not sufficient to support the jury verdict as a matter of law; and 4) that the determinate life sentence was excessive and hence beyond the outer bounds of the court's sentencing discretion.

PART IA.

This is not the first time this Court has been asked to consider the existence of a second degree murder by torture offense and to require that the jury be instructed in that regard. Eight years ago in State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985), the Court summarily rejected Stuart's contention that the trial court, Judge Schwam, erred in not instructing the jury on second degree murder by torture. Defense counsel had at trial sought such instruction predicated on the trial court's statutory duty to instruct on lesser included offenses which are included in the greater offense. This Court, however, in declining to do so, rationalized as follows:

Appellant also argues that ... I.C. § 18-4001, and I.C. § 18-4003, should be Stuart, 110 Idaho at 169-70, 715 P.2d at 839-40 (footnote omitted). The fault in the foregoing analysis and holding was readily detailed in the Stuart dissenting opinion, wherein was simply stated:

[123 Idaho 723] read to contemplate the existence of a second degree murder by torture offense, and thus the trial court should have instructed the jury on second degree murder pursuant to its duty to instruct on lesser included offenses. We note that a second degree murder instruction was given, but a second degree murder by torture instruction was not requested or given. In addition, we note that appellant's counsel accepted the instructions as given by the court, and noted that he had no objection to the instructions the court intended to give. Thus, any error in failing to instruct on this charge, if indeed one exists, was invited error and will not be considered on appeal. State v. Lopez, 100 Idaho 99, 593 P.2d 1003 (1979).

Prior to 1977, the law was clear in Idaho that the burden was upon the defendant to request the court to instruct on lesser included offenses. State v. Morris, 97 Idaho 420, 546 P.2d 375 (1976); State v. Herr, 97 Idaho 783, 554 P.2d 961 (1976); State v. Boyenger, 95 Idaho 396, 509 P.2d 1317 (1973). This Court recognized that in a situation where the state has requested that the defendant be convicted of a lesser included offense, the defendant, as a trial tactic, may not desire any instruction regarding a lesser included offense. See State v. Herr, supra; State v. Boyenger, supra. The case law was clear that no error could be predicated upon the failure of the trial court to give an instruction on a lesser included offense where defendant did not request such or as in the instant case withdraws such request.

However, in 1977 the Idaho legislature enacted I.C. § 19-2132(b) which states: 'The court shall instruct the jury on lesser included offenses when they are supported by any reasonable view of the evidence.' This Court on several occasions has construed the word 'shall' as being mandatory and not discretionary. Hollingsworth v. Koelsch, 76 Idaho 203, 280 P.2d 415 (1955); Munroe v. Sullivan Mining Co., 69 Idaho 348, 207 P.2d 547 (1949); State v. Braun, 62 Idaho 258, 110 P.2d 835 (1941). It is clear that I.C. § 19-2132(b) makes it the duty of the trial court to instruct the jury on lesser included offenses when they are supported by a reasonable view of the evidence, even if the court is not requested to do so. To the extent that prior Idaho cases held that no error could be predicated upon the failure of the trial court to instruct the jury on lesser included offenses unless defendant requested such instructions, they are no longer applicable.

....

In future cases the trial bench should be cognizant that under the mandatory terms of I.C. § 19-2132(b) the duty to instruct as to lesser included offenses exists even when as a matter of trial tactics a defendant fails to request the instruction. However, any failure by the trial court to meet this mandatory duty which is caused by defendant's express objection to or waiver of the trial court instructing as to lesser included offenses will be as in the instant case invited error and not considered on appeal.

Stuart, 110 Idaho at 189, 715 P.2d at 859 (Bistline, J., dissenting).

The district court's remarks to counsel in the State's prosecution against Tribe are more enlightening relative to the above excerpt from Stuart, and are also provocative:

THE COURT [the Hon. Deborah Bail, District Judge]: I thought it was peculiar in the Stuart case that they [the Supreme Court] rejected the suggestion that there should have been an instruction on second degree murder by torture saying that since the defense didn't ask for it, it was invited error, which is peculiar, because if, indeed, it were a lesser-included offense, it is error not to give the instruction, whether or not the defense requests it.

MR. HAYNES [Trial counsel for the defendant]: That's right.

THE COURT: Which is puzzling--it is puzzling to me. It was also puzzling to me they used the term--they used the expression 'if one exists' in reference to that.

Tr., Vol. 5, 2-3 (emphasis added). Judge Bail's puzzlement was the product of an accurate reading of Stuart; unfortunately, the above holding in the Stuart majority opinion was the product of an inaccurate reading of State v. Lopez, 100 Idaho 99, 593 P.2d 1003 (1979). Back-tracking from Stuart to Lopez, it is readily seen that the course of justice went awry when the Court relied upon the holding of Lopez as supporting authority upon which it incorrectly premised the "invited error" assigned against counsel representing Stuart. Obviously, Judge Bail's expressed consternation was well-justified. Moreover, under the clear provisions of I.C. § 19-2132(b) ¹, it was incumbent upon Judge Schwam to correctly instruct the Stuart jury on any and all lesser offenses which are included in the greater charge of first degree murder. Lopez, written just six years before Stuart, ruled that "[t]o the extent that prior Idaho cases held that no error could be predicated upon the failure of the trial court to instruct the jury on lesser included offenses unless defendant requested such instructions, they are no longer applicable." Lopez, 100 Idaho at 102, 593 P.2d at 1006.

Ever since Judge Bail mused with counsel on second degree torture murder, this Court has been pondering the question of whether murder by torture can constitute murder of the second degree. Today we address the question.

PART IB.

The offense of torture murder in general is essentially a compilation of I.C. § 18-4001 and I.C. § 18-4003. Section 18-4001 defines the terms "murder" and "torture":

18-4001. Murder defined.--Murder is the unlawful killing of a human being with malice aforethought or the intentional application of [any form of] torture to a human being, which results in the death of a human being. Torture is the intentional infliction of extreme and prolonged pain with the intent to cause suffering. It shall also be torture to inflict on a human being extreme and prolonged acts of brutality irrespective of proof of intent to cause suffering. ² The death of a human being caused by such torture is murder irrespective of proof of specific intent to kill; torture causing death shall be deemed the equivalent of intent to kill.

(Numbers in brackets, emphasis, and footnote added.)

Recognizing that the legislature in dealing with torture has coupled the infliction of torture with four specific differing intents, each of which if proven results in murder of the first degree and observing that we have taken the liberty of restructuring the four specific intents into I.C. § 18-4003, we hasten to explain our perception that the legislature likely understood that the word "intent" would be broadly used to apply to any infliction of torture ³ done with a specific intent to accomplish one of the four...