State v. Sivak , 119 Idaho 320 ( 1990 )

JOHNSON, Justice.

This is a death penalty case that has been the subject of two prior appeals to this Court. State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983) (Sivak I) and Sivak v. State, 112 Idaho 197, 731 P.2d 192 (1986) (Sivak II). In Sivak I, this Court upheld both of Sivak’s convictions for first degree murder and the death sentence imposed by the trial court. In Sivak II, this Court vacated the trial court’s death penalty sentence and remanded the case for resentencing. Following the remand in Sivak II, the trial court again sentenced Sivak to death.

Because we conclude that the trial court failed to weigh the aggravating and mitigating circumstances as required by this Court in State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989), we again vacate the sentence and remand the case to the trial court for resentencing. We also:

1. give the trial court instructions to guide the trial court on resentencing concerning the victim impact statement made by the husband of the deceased victim;

2. hold that it was proper for the trial court to consider (a) statements made by a representative of the deceased victim’s employer, (b) evidence concerning Sivak’s activities after his conviction and before the trial court resentenced him, and (c) evidence presented in prior sentencing hearings;

3. conclude that I.C. § 19-2515(c) does not violate the eighth amendment; and

4. reject the other arguments made by Sivak on this appeal as having previously been resolved in Sivak I and Sivak II.

i.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Sivak I and Sivak II state the background of this case and the prior proceedings up to the resentencing directed in Sivak II.

In resentencing Sivak following the remand in Sivak II, the trial court considered testimony from prior hearings in this case, including testimony by the husband of the deceased victim and testimony by the representative of the employer of the deceased victim. The husband described the impact of the victim’s death on her family and stated that if he were in a position to pass sentence on Sivak, the sentence would be death. The representative of the employer described the effect on the local gasoline station industry of the manner in which the victim was killed.

In resentencing Sivak following the remand in Sivak II, the trial court also considered mitigating circumstances concerning Sivak that occurred during his incarceration following his conviction. The trial court also considered evidence offered by the state of the concealment by Sivak of a dangerous weapon in his cell during his imprisonment.

In resentencing Sivak to death, the trial court found “that the mitigating circumstances do not outweigh the gravity of the aggravating circumstances so as to make unjust the imposition of the death penalty.”

Sivak appealed not only the death sentence imposed by the trial court following the remand in Sivak II, but also his conviction, raising several issues that were resolved by this Court in Sivak I and Sivak II.

II.

THE TRIAL COURT DID NOT WEIGH THE AGGRAVATING AND MITIGATING CIRCUMSTANCES AS REQUIRED IN STATE V. CHARBONEAU.

In State v. Charboneau, decided by this Court on April 4, 1989, more than five months after the trial court’s resentencing of Sivak following the remand in Sivak II, this Court held that “the trial court may sentence the defendant to death, only if the trial court finds that all the mitigating circumstances do not outweigh the gravity of each of the aggravating circumstances found and make imposition of death unjust.” 116 Idaho at 153, 774 P.2d at 323. It is clear that the trial court in resentencing Sivak to death did not weigh all the mitigating circumstances against each of the aggravating circumstances separately as required by Charboneau. We understand that at the time of resentencing the trial court did not have the benefit of our opinion in Charboneau. Nevertheless, we have no alternative but to vacate the death sentence and remand for resentencing as we did in State v. Fain, 116 Idaho 82, 100, 774 P.2d 252, 270 (1989). We instruct the trial court to weigh the aggravating and mitigating circumstances as required by Charboneau when resentencing Sivak.

III.

THE TRIAL COURT SHOULD NOT HAVE CONSIDERED THE VICTIM IMPACT STATEMENT OF THE DECEASED VICTIM’S HUSBAND.

Sivak asserts that the trial court should not have considered the testimony of the deceased victim’s husband concerning the impact of the victim’s death on her family and his recommendation of the death penalty. We agree.

It is clear that this testimony was prohibited by Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) and by Charboneau, 116 Idaho at 149-50, 774 P.2d at 319-20. Although we have now adopted the harmless error rule with regard to the use of victim impact statements (State v. Paz, 118 Idaho 542, 798 P.2d 1 (1990)), we advise the trial court of our view of the impropriety of the consideration of this evidence, in order to avoid the necessity of reviewing this matter if another appeal results in this case.

IV.

UNDER SIVAK II, IT WAS PROPER FOR THE TRIAL COURT TO CONSIDER THE TESTIMONY OF THE REPRESENTATIVE OF THE DECEASED VICTIM’S EMPLOYER.

Sivak also asserts that the trial court should not have considered the testimony of the representative of the deceased victim’s employer as to the impact of the manner of the victim’s death on the local gasoline station industry. We disagree.

This testimony concerned the security measures that employers and their employees were considering taking to protect themselves against incidents similar to the one that led to the murder in this case. In Sivak II, this Court specifically rejected a challenge to the consideration of this testimony on the grounds that it did not violate Sivak’s rights to due process of law, to a fair sentencing trial or to be free from cruel and unusual punishment. 112 Idaho at 213, 731 P.2d at 208.

Sivak would have us characterize this testimony as a “victim impact statement” in order to avoid the ruling on this issue in Sivak II and to apply the rule in Booth v. Maryland. This we are unable to do. The victim impact statement in Booth was one required by statute and contained only two types of information:

First, it described the personal characteristics of the victims and the emotional impact of the crimes on the family. Second, it set forth the family members’ opinions and characterizations of the crimes and the defendant.

482 U.S. at 502, 107 S.Ct. at 2533, 96 L.Ed.2d at 448.

The testimony of the employer's representative here was not a victim impact statement in the sense referred to in Booth. It related to the impact on society, not to the impact on the victim and the victim’s family. Under the rule of stare decisis, we must follow the ruling on this issue in Sivak II, unless it is “manifestly wrong” or “has proven over time to be unjust or unwise,” or unless departure from Sivak II is “ ‘necessary to vindicate plain, obvious principles of law and remedy continued injustice.’ ” Bethke v. Idaho Sav. & Loan Association, 93 Idaho 410, 413, 462 P.2d 503, 506 (1969); Salinas v. Viestra, 107 Idaho 984, 990, 695 P.2d 369, 375 (1985); State v. Guzman, Idaho, Supreme Court No. 17716 (filed Nov. 19, 1990).

The United States Supreme Court has not extended the rationale of Booth to prohibit the consideration in a death penalty sentencing of information concerning harm to the public occasioned by a murder. The dissents in Booth make it clear to us that the Supreme Court was sharply divided in that case concerning the extension of the coverage of the eighth amendment to prohibit this type of evidence. In dissent, Justice White, with whom Chief Justice Rehnquist and Justices O’Connor and Scalia joined, said:

It is no doubt true that the State may not encourage the sentencer to rely on a factor such as the victim’s race in determining whether the death penalty is appropriate. But I fail to see why the State cannot, if it chooses, include as a sentencing consideration the particularized harm that an individual’s murder causes to the rest of society and in particular to his family.

482 U.S. at 517, 107 S.Ct. at 2540, 96 L.Ed.2d at 457-58 (White, J., dissenting) (emphasis added) (citation omitted) (footnote omitted).

We cannot predict whether or not the Supreme Court will extend the rationale of Booth to prohibit testimony such as that of the representative of the victim’s employer. All we can say is that the Supreme Court has not yet done so. On remand, we caution the trial court to consider carefully the significance of the testimony of the representative of the victim’s employer in deciding whether to give it any weight in resentencing Sivak. In order to clarify the record for this Court and for the federal courts in the event of the review of this case following resentencing, we instruct the trial court to state specifically whether this testimony was considered in resentencing Sivak.

V.

THE TRIAL COURT PROPERLY CONSIDERED THE EVIDENCE PRESENTED IN PRIOR SENTENCING HEARINGS.

Sivak asserts that in resentencing Sivak following the remand in Sivak II the trial court should not have considered the evidence presented in prior sentencing hearings. We disagree.

The remand by this Court in Sivak II was for resentencing consistent with our opinion. While we directed the trial court to allow Sivak to present additional mitigating evidence, we did not direct that the entire sentencing process be repeated. Except as we have noted above, the consideration by the trial court of the evidence presented in prior sentencing hearings was proper.

VI.

I.C. § 19-2515(0 DOES NOT PRECLUDE THE INDIVIDUALIZED SENTENCING REQUIRED BY THE EIGHTH AMENDMENT.

Sivak asserts that I.C. § 19-2515(c) precludes the individualized sentencing required by the eighth amendment. We disagree.

I.C. § 19-2515(c) provides:

(c) Where a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the court finds at least one (1) statutory aggravating circumstance. Where the court finds a statutory aggravating circumstance the court shall sentence the defendant to death unless the court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance found and make imposition of death unjust.

Citing Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929, 938 (1976), Sivak argues that this statute is an inadequate vehicle for fulfilling the constitutional obligation to allow capital sentencers “to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” The bases of Sivak’s argument are: (1) the statute places the burden of proof on the defendant, and (2) it includes a mandatory presumption that death “shall” be imposed unless mitigation is found to outweigh aggravation and is found to make imposition of death unjust.

This Court has previously rejected the argument that I.C. § 19-2515(c) violates the eighth amendment because it places the burden on a defendant to prove the existence of mitigating circumstances that outweigh any aggravating circumstance that is found. State v. Charboneau, 116 Idaho 129, 154, 774 P.2d 299, 324 (1989). In Charboneau, this Court said:

I.C. § 19-2515(c) presumes that a life sentence is the sentence for first degree murder. Only if at least one of the aggravating circumstances listed in I.C. § 19-2515(g) is found to exist beyond a reasonable doubt may a sentence of death be imposed. It is only then that a defendant has the burden of coming forward with mitigating circumstances.

Id.

The burden on the defendant to present mitigating circumstances arises only if the prosecution proves beyond a reasonable doubt that at least one of the statutory aggravating circumstances exists. As this Court said in State v. Osborn, 102 Idaho 405, 417, 631 P.2d 187, 199 (1981): “The defendant’s burden is merely to raise, in the aggravation-mitigation hearing, any factors which might possibly tend to mitigate his culpability for the offense.” If no mitigating circumstances are presented to the trial court, the court is required to impose the death penalty. If mitigating circumstances are presented to the court, the court may sentence the defendant to death, only if the court finds that all the mitigating circumstances do not outweigh the gravity of each of the aggravating circumstances found and make imposition of death unjust. Charboneau, 116 Idaho at 153, 774 P.2d at 323.

Sivak argues that if at least one of the aggravating circumstances specified in I.C. § 19-2515 is found to exist the death penalty must be imposed unless the court finds that the mitigating circumstances make imposition of death unjust. Sivak contends that this empowers the sentencing judge to sentence the defendant to death, even if the mitigating circumstances outweigh each of the aggravating circumstances.

Under this interpretation of the last sentence of I.C. § 19-2515(c), if the trial court finds that the mitigating circumstances outweigh each of the statutory aggravating circumstances that are found, the court must then determine whether the imposition of the death penalty would be unjust. Conversely, if the trial court finds that the mitigating circumstances do not outweigh at least one of the statutory aggravating circumstances found, the death penalty may not be imposed.

The state contends in its brief that the ordinary meaning of the last sentence of I.C. § 19-2515(c) “is that the weight of extenuating circumstances would automatically make imposition of the death penalty unjust in cases where the mitigation was more compelling than aggravation.” Under this interpretation, the trial court is required only to determine whether the mitigating circumstances outweigh each of the statutory aggravating circumstances found. The result of this weighing determines whether the imposition of the death penalty is unjust. If the mitigating circumstances outweigh each aggravating circumstance found, the imposition of the death penalty would be unjust. If the mitigating circumstances do not outweigh each aggravating circumstance found, the imposition of the death penalty is just.

At first blush, the state’s interpretation of I.C. § 19-2515(c) would appear to make the words “and make imposition of death unjust” surplusage. Ordinarily, we must construe a statute to give effect to all of its parts, if we can, and not construe it in a way that makes mere surplusage of one of its provisions. State v. Alkire, 79 Idaho 334, 338, 317 P.2d 341, 343-44 (1957); Hartley v. Miller-Stephan, 107 Idaho 688, 690, 692 P.2d 332, 334 (1984) (overruled on other grounds, Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990)). However, there is another principle of statutory construction that must be considered here. Criminal statutes must be strictly construed. Charboneau, 116 Idaho at 153, 774 P.2d at 323 (citing State v. Thompson, 101 Idaho 430, 437, 614 P.2d 970, 977 (1980)). In Thompson, the Court said: “This principle extends not only to the elements of the substantive crime, but also to the sanctions potentially involved.” 101 Idaho at 437, 614 P.2d at 977.

Construing the last sentence of I.C. § 19-2515(c) strictly in favor of defendants in death penalty cases, we accept the interpretation advanced by the state. If the trial court finds that the mitigating circumstances presented outweigh each statutory aggravating circumstance found, the imposition of the death penalty would be unjust.

We also reconfirm the conclusion we reached in Charboneau that I.C. § 19-2515(c) does not violate the eighth amendment. No particular formula for considering mitigating circumstances is compelled by the eighth amendment. This is borne out by the recent decision of the Supreme Court in Walton v. Arizona:

Walton insists that because § 13-703(E) provides that the court “shall” impose the death penalty if one or more aggravating circumstances are found and mitigating circumstances are held insufficient to call for leniency, the statute creates an unconstitutional presumption that death is the proper sentence. Our recent decisions in Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), and Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), foreclose this submission. Blystone rejected a challenge to a jury instruction based on a Pennsylvania statute requiring the imposition of the death penalty if aggravating circumstances were found to exist but no mitigating circumstances were present. We pointed out that “[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence,” 494 U.S., at-, 110 S.Ct., at 1083 (footnote omitted), and concluded that because the Pennsylvania statute did not preclude the sentencer from considering any type of mitigating evidence, id., at-,-, 110 S.Ct., at 1083, 1084, it was consonant with that principle. In addition, the Court concluded that the statute was not “impermissibly ‘mandatory’ ” as that term was understood: in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), because it did not automatically impose death upon conviction for certain types of murder. 494 U.S., at-, 110 S.Ct., at 1084. The same is true of the Arizona statute.

Similarly, Boyde v. California, supra, upheld a pattern jury instruction which stated that “[i]f you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” See 494 U.S., at -, 110 S.Ct., at 1195 (emphasis omitted). The Court specifically noted that “there is no ... constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.’ ” Id., at-, 110 S.Ct., at 1196 (quoting Franklin v. Lynaugh, 487 U.S. 164, 181, 108 S.Ct. 2320, 2331, 101 L.Ed.2d 155 (1988) (plurality opinion)).

Walton’s arguments in this case are no more persuasive than those made in Blystone and Boyde.

— U.S. -, -, 110 S.Ct. 3047, 3056, 111 L.Ed.2d 511, 527 (1990).

Following the rationale of the Supreme Court in Walton, we conclude that Sivak’s arguments in this case are no more persuasive than those made in Walton. I.C. § 19-2515(c) does not preclude the trial court from considering any type of mitigating evidence, nor does it require the trial court automatically to impose death upon a defendant who has been convicted for certain types of murder. The statute allows the trial court to exercise its discretion within the structure established by the legislature for considering mitigating circumstances. The Supreme Court has said the eighth amendment requires no more.

VII.

THE OTHER ISSUES RAISED BY SIVAK HAVE PREVIOUSLY BEEN RESOLVED AND WILL NOT BE RECONSIDERED.

Sivak asks us to reconsider our prior rulings in Sivak I and Sivak II on a wide range of issues. We decline to do so. The remand in Sivak II was only for the purpose of resentencing, not to allow Sivak to begin again his assault on his conviction.

VIII.

CONCLUSION.

We vacate the death sentence imposed on Sivak and remand for resentencing in accordance with the instructions contained in this opinion.

BAKES, C.J., BOYLE, J., and BECKER, J. Pro Tern., concur.