State v. Fetterly , 115 Idaho 231 ( 1988 )

DISSENT ON DENIAL OF PETITION FOR REHEARING

BISTLINE, Justice,

dissenting on denial of petition for rehearing.

On the direct appeal and statutorily mandated review of his death sentence, State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1986) (Fetterly I), a majority of this Court rejected Fetterly’s argument that his sentence of death was disproportionate to the penalty imposed in similar cases. As will be noticed, the Court’s opinion on Fetterly’s appeal from denial of his petition for post-conviction relief, to which this will be appended, held that the numerous grounds argued in the petition were res judicata because they were, or should have been, adjudicated on direct appeal. State v. Fetterly, 115 Idaho 231, 766 P.2d 701 (1988) (Fetterly II).

In his petition for rehearing, Fetterly concedes the existence of that res judicata holding, but nevertheless urges that his sentence is disproportionate in the light of State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1986), the opinion in that case being decided after issuance of the Court’s opinion on Fetterly’s direct appeal and statutorily mandated automatic review. Although it is readily seen that on Fetterly’s direct appeal, proportionality in his case could not be compared to the then as yet undecided Windsor case, nevertheless when Windsor was decided on direct appeal, proportionality as between those two co-defendants who killed Sterling Grammer was only inferentially passed upon. The opinion for the Court in Windsor noted that, although Windsor’s participation in the killing of Sterling Grammer was co-extensive with Fetterly’s, “Windsor’s background and individual characteristics serve to make the death penalty excessive in this (her) case.” The majority opinion noted her cooperation with authorities, lack of a formal criminal record, conducting herself as an ideal inmate, and compassion for fellow inmates.¹

Accordingly, my vote is that the Court should grant rehearing confined to the one narrow issue, i.e., the proportionality of Fetterly’s death sentence in light of the sentencing decision in Windsor, an issue which has not heretofore been addressed by this Court. Otherwise, Fetterly’s background and post-conviction conduct and character traits are not equally considered with his co-defendant’s.

1 . Having dissented in Windsor, I continue to adhere to a different view, and note that my contrary views were shared by the district judge who sentenced both defendants, and thereafter recused himself rather than resentence Karla Windsor, as has been covered in subsequent death penalty cases.