State v. Searcy

BAKES, Chief Justice.

Barryngton Eugene Searcy appeals from convictions for first degree murder, robbery and an enhancement for the use of a firearm in the commission of a felony and from the following sentence:

1. First degree murder — determinate life sentence without possibility of parole;

2. Robbery — indeterminate life sentence to be served consecutively to the sentence pronounced for murder, with a minimum of ten years to be served;

3. Use of a firearm in the commission of murder and robbery — an enhancement of ten years;

Searcy raised several issues on appeal, including the argument that I.C. § 18-207¹ unconstitutionally deprived him of his right to due process by forbidding him to plead an independent defense of insanity (mental nonresponsibility).

I

Barry Searcy was convicted of killing Teresa Rice while robbing Jack’s Grocery Store in Ashton, Idaho, July 15, 1987. Rice, the mother of two children, owned and operated the store with her husband Michael. Searcy robbed the store in order to get money to buy cocaine. Searcy had staked out the store during its operating hours and hid on top of some coolers in the back room where he waited to either burglarize or rob as the situation dictated. From this hiding spot Searcy could see Rice enter the back room and count out money for storage in the store’s safe. Rice then left the back room. As Searcy was leaving his hiding spot Rice returned to the back room and discovered Searcy. A confrontation ensued and Rice was shot in the stomach by Searcy, apparently during a struggle. Searcy testified that he then told Rice that if she opened the safe he would call an ambulance. She did so. Searcy then removed the money from the safe and placed it into his backpack. Searcy did not call an ambulance. Rather, he put his rifle to Rice’s head and shot her, killing her instantly.

After leaving the store, Searcy testified that he hid the rifle and money under a rock at a target shooting location near Rex-burg, Idaho. The next day Searcy took some of the money and bought a used car with it in order to drive to Salt Lake City, Utah, to purchase more cocaine. On September 13, 1987, some boys discovered the gun, money and Searcy’s gloves. The boys showed the items to their fathers who were target shooting nearby. Discovery of these items lead to .the arrest of Searcy.

Searcy was 20 years old at the time he killed Rice. He apparently is chemically dependant on alcohol and cocaine. Searcy’s parents were divorced when he was eight. Searcy suffers from a physical condition known as delayed growth syndrome. This condition stunted Searcy’s growth, allegedly making him the target of harassment from children in grade school. By the time he reached 15 years of age Searcy had the physical development of a 9 year old. Searcy began hormone treatments, but his growth was limited to 5 feet, 6 inches. Allegedly, the hormone treatments had a bad side effect and Searcy became mean and abusive. This ill effect was worsened by Searcy’s introduction and addiction to chemicals: alcohol, marijuana and cocaine.

Searcy increasingly got into trouble as his chemical dependency continued while repeated efforts to treat it were not successful. Searcy committed burglaries, armed robberies, and sold illegal drugs in order to support his addiction to cocaine. Searcy had ambitions of becoming a major drug dealer but he personally used most of the cocaine he purchased. After using up a significant portion of the cocaine he bought from the money he stole from Jack’s Grocery, Searcy began to contemplate robbing a bigger store in order to get more money. Instead of committing another robbery, Searcy entered treatment once again. While in treatment, Searcy confessed to a counselor that he had killed Rice.

At trial a jury found Searcy guilty of murder in the first degree by finding both premeditation and by finding that Searcy killed while committing a robbery. Searcy was also found guilty of robbery and of using a firearm while committing a felony.

Over objection, the trial judge at sentencing admitted a victim impact statement from Rice’s family. Michael Rice, the victim’s husband, indicated in the statement that he favored imposition of the death penalty for Searcy and that he felt it should be swiftly carried out. Nevertheless, the trial judge did not impose the death penalty on Searcy. Instead, the trial judge entered the following sentences on the various counts:

. 1. First' degree murder — determinate life sentence without possibility of parole;

2. Robbery — indeterminate life sentence to be served consecutively to the sentence pronounced for murder, with a minimum of ten years to be served;

3. Use of a firearm in the commission of murder and robbery — an enhancement of ten years;

Searcy appeals from the conviction and sentences raising the following issues.

II

First Searcy argues that I.C. § 18-207 unconstitutionally denies him due process of law because it prevented him from pleading insanity as a defense.² Neither the federal nor the state Constitutions contains any language setting forth any such right. Searcy argues, nevertheless, that the disallowance of the insanity defense deprived him of one of the “fundamental principles of liberty and justice which lie at the base of our civil and political institutions,” Herbert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926), and thus denied him due process of law. Searcy argues the insanity defense is so deeply rooted in our legal traditions as to be considered fundamental and thus embedded in due process.

The insanity defense has had a long and varied history during its development in the common law. As the understanding of the mental processes changed over the centuries, the implications of a criminal defendant’s insanity have changed. In more recent times legislatures have enacted statutes regulating and defining the effect of a defendant’s claim of mental nonresponsibility. Not surprisingly, there has resulted a wide disparity in the positions taken on this issue both by legislatures and courts in the various states.³

Three states, Idaho, Montana and Utah, have legislatively chosen to reject mental condition as a separate specific defense to a criminal charge. The statutes in these three states, however, expressly permit evidence of mental illness or disability to be presented at trial, not in support of an independent insanity defense, but rather in order to permit the accused to rebut the state’s evidence offered to prove that the defendant had the requisite criminal intent or mens rea required by I.C. §§ 18-114 and 18-115 to commit the crime charged. I.C. § 18-207;⁴ M.C.A. § 46-14-102; U.C. § 76-2-305. In State v. Beam, 109 Idaho 616, 621, 710 P.2d 526, 531 (1985) we upheld I.C. § 18-207 against a related challenge, stating;

We hold that the three statutes are not in conflict since I.C. §§ 18-114 and 18-115 do not mandate the existence of a defense based upon insanity, but rather I.C. § 18-207 reduces the question of mental condition from the status of a formal defense to that of an evidentiary question. Section 18-207(c), Idaho Code, continues to recognize the basic common law premise that only responsible defendants may be convicted. since it operates as a presumption that no defendant can possess such lack of mental capacity as to be unable to formulate the criminal intent. We disagree. I.C. § 18-207(c) specifically provides that a defendant is not prohibited from presenting evidence of mental disease or defect which would negate intent.

It is Beam’s second argument that I.C. § 18-207 violates the doctrine established by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which held that due process of law requires that the prosecution prove every fact necessary to constitute the crime charged beyond a reasonable doubt. It is asserted that I.C. § 18-207 impermissibly relieves the State of that burden,

While the issue facing us today has never been directly decided by the United States Supreme Court, the language from several opinions of that Court suggests rather convincingly that that Court would conclude that the due process of the fifth amendment does not require the states to provide a criminal defendant with an independent defense of insanity. First, in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), the United States Supreme Court rejected an argument that due process required the use of any particular insanity test and upheld an Oregon statute which placed on the criminal defendant the burden of proving his insanity defense, and then by proof beyond a reasonable doubt. In Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), the Supreme Court stated:

[Tjhis court has never articulated a general constitutional doctrine of mens rea. We cannot cast aside the centuries-long evolution of the collection of interlocking and overlapping concepts which the common law has utilized to assess the moral accountability of an individual for his antisocial deeds. The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the StatesJ⁵1

392 U.S. at 535-536, 88 S.Ct. at 2156, 20 L.Ed.2d at 1269 (emphasis added). Justice Marshall, in his Powell opinion, stated that “nothing could be less fruitful than for this Court to be impelled into defining some sort of insanity test in constitutional terms.” 392 U.S. at 536, 88 S.Ct. at 2156. Justice Rehnquist recently reaffirmed this view in his dissenting opinion in Ake v. Oklahoma, 470 U.S. 68, 91, 105 S.Ct. 1087, 1100, 84 L.Ed.2d 53, 71 (1985), in which he wrote:

[I]t is highly doubtful that due process requires a state to make available an insanity defense to a criminal defendant, but in any event if such a defense is afforded the burden of proving insanity can be placed on the defendant.

In a similar vein, the Ninth Circuit Court of Appeals has very recently rejected the argument that the eighth amendment to the United States Constitution contains any implicit command that mental illness be considered a mitigating circumstance. Harris v. Pulley, 885 F.2d 1354 (9th Cir.1989).

The Supreme Court of Montana has upheld a similar Montana statute abolishing the independent defense of insanity, concluding that “Montana’s abolition of the insanity defense neither deprives a defendant of his fourth amendment right to due process nor violates the eighth amendment proscription against cruel and unusual punishment. There is no independent constitutional right to plead insanity.” State v. Korell, 690 P.2d 992 (1984).

In conclusion, on this issue, while there is little authority directly on the question which we must decide today, the only court which has expressly ruled upon this issue has upheld the constitutionality of a state statute abolishing the insanity defense. State v. Korell, supra. The only justice of the United States Supreme Court, Chief Justice Rehnquist, who has addressed this specific issue has stated, “It is highly doubtful that due process requires the state to make available an insanity defense to a criminal defendant____” Finally, from the statement of the United States Supreme Court in Powell v. Texas, that “nothing could be less fruitful than for this court to be impelled into defining some sort of insanity test in constitutional terms,” it is difficult to understand how there could be an insanity defense guaranteed by the United States Constitution which, nevertheless, has no constitutional definition and is subject to differing definitions by the various states, Powell v. Texas, supra, and may be subject to differing burdens of proof by the states. Leland v. Oregon, supra. Accordingly, we conclude, based upon the foregoing authorities, that due process as expressed in the Constitutions of the United States and of Idaho does not constitutionally mandate an insanity defense and that I.C. § 18-207 does not deprive the defendant Searcy of his due process rights under the state or federal Constitution. Leland v. Oregon, supra; State v. Korell, 213 Mont. 316, 690 P.2d 992 (1984); Leland v. Oregon, supra; Powell v. Texas, supra; State v. Beam, supra.⁶

Ill

We now consider Searcy’s objection that the trial court erred by denying his motion to strike a victim impact statement which was allegedly used as a basis for arriving at the sentence. Searcy asserts that the sentencing court improperly considered prejudicial remarks contained in the victim impact statement when imposing on Searcy a fixed life prison term. Searcy argues that the victim impact statement was irrelevant to sentencing considerations even though he acknowledges that its use by the sentencing court is mandated by I.C. § 19-5306⁷ and I.C.R. 32(b)(1).⁸ Searcy argues, however, that the sentencing court was obliged to ignore the victim impact statements based upon the holdings in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). However, those two cases were death penalty cases and the decisions are based on the unique requirements of the eighth amendment of the United States Constitution as it applies to death penalty cases. In the present case where the defendant was not sentenced to death but, rather to a fixed life prison term, the Booth and Charboneau cases are inapplicable. The sentencing court did not err by denying defendant’s motion to strike the victim impact statement.

IV

A.

Searcy argues that the trial court imposed an invalid sentence when it gave a ten-year enhancement both to the determinate life sentence without possibility of parole for the premeditated first degree murder, and a ten-year enhancement to the consecutive indeterminate life sentence imposed for the crime of robbery. As a result, Searcy argues that he should have been present when the trial court corrected the sentence. Both enhancements were based upon I.C. § 19-2520 which provides for an extended sentence for use of a firearm or deadly weapon in the commission of felonies, as were charged here. However, I.C. § 19-2520E provides that “any person convicted of two (2) or more substantive crimes provided for in the above code sections, which crimes arose out of the same indivisible course of conduct, may only be subject to one (1) enhanced penalty.”

The trial court recognized that the imposition of the two enhancements violated the above section and, in response to Searcy’s I.C.R. 35 motion to correct or reduce sentence, corrected its previous sentence by stating that “the court will correct the sentence and order that the defendant Barryngton Eugene Searcy be sentenced to a term of ten years as an enhancement for having used a deadly weapon in the commission of the crime of murder and the crime of armed robbery.”

Searcy argues on appeal that the original sentence (which included two 10-year enhancements) being invalid, the trial court could not correct the invalid sentence without having the defendant present in court, as required by I.C. § 19-2503 which provides that “for the purpose of judgment, if the conviction is for a felony, the defendant must be personally present____” Searcy also relies on I.C.R. 43(a), which provides:

Rule 43. Presence of the defendant.— (a) Presence required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

(Emphasis added.) In Lopez v. State, 108 Idaho 394, 700 P.2d 16 (1985), this Court held that where “the original sentence was invalid, the sentence was not imposed until the court corrected the judgment.” 108 Idaho at 396, 700 P.2d at 18. In Lopez we remanded to the trial court with instructions to re-impose a correct sentence at a proceeding at which the defendant was present.

In this case, the original sentence imposed on Searcy which contained two separate enhancements, was invalid since it violated I.C. § 19-2520E. Under Lopez the trial court could not correct the sentence without the defendant being present.⁹ Accordingly, we remand for correction of the sentence in the defendant’s presence. Lopez v. State, supra.

B.

Since we are remanding for correction of the invalid sentence in the presence of the defendant, we note two other sentencing claims made by the appellant Searcy. Searcy claims that the trial court erred in imposing a single enhancement against both the first degree murder sentence and the robbery sentence. Furthermore, Searcy argues that a determinate life sentence without possibility of parole cannot be, as a matter of logic, enhanced by a ten-year enhancement under I.C. § 19-2520. Searcy relies on the opinion of the Court of Appeals in State v. Kaiser, 106 Idaho 501, 503, 681 P.2d 594, 596 (Ct.App.1984), in which the Court of Appeals, in reviewing the effect of the enhancement provisions of I.C. § 19-2520, stated that, “A life sentence does not allow for any further ‘enhancement.’ ” On petition for review this Court vacated the Court of Appeals decision in Kaiser, stating, “Although the reasoning of the Court of Appeals is persuasive regarding fixed life and death penalty sentences, we are convinced that an indeterminate life sentence is a horse of a different color.” State v. Kaiser, 108 Idaho 17, 19, 696 P.2d 868, 870 (1985). Searcy further relies on the comment of Judge Swanstrom in State v. Merrifield, 112 Idaho 365, 732 P.2d 334 (Ct.App.1987), in which he stated, “It would be a useless act to enhance a fixed life sentence where there is no possibility of parole.” We need not resolve whether or not the legislature can enhance a “fixed life sentence where there is no possibility of parole,” nor whether such an enhancement is provided by I.C. § 19-2520 if there were only a conviction of first degree murder in this case. Here, Searcy was convicted of robbery as well as first degree murder. The single 10-year enhancement on the robbery conviction was justified by the statute.

C.

Finally, we consider Searcy’s argument that his sentence was unreasonable or unduly severe. As modified in the trial court, Searcy was sentenced to a fixed life term for first degree murder and an indeterminate life term for robbery enhanced by an additional ten years for use of a firearm in the commission of robbery. Each of these two sentences falls within the maximum sentences for each crime. Notably, Searcy may have received the death penalty for the first degree murder conviction. Searcy argues that the district court abused its discretion by basing the sentences entirely on retribution and by failing to consider rehabilitation, societal protection, or deterrence. We disagree. In denying Searcy’s I.C.R. 35 motion for reduction of sentence, the district court wrote:

The Court found that the murder was planned and carried out in an atrocious, cruel and heinous manner and that the sordid circumstances manifested exceptional depravity. Any mitigating circumstances were evasive amounting mainly to his youth. The mitigating circumstances were sufficient to avoid capital punishment, but they can not be expanded to call for further leniency.

We can find no abuse of discretion present in the district court’s reasons for sentencing Searcy as it did, especially upon consideration of the cold-blooded nature of the murder of Teresa Rice. Searcy’s alleged addiction to cocaine and troubled childhood do not excuse his crime or mandate a lesser sentence. Accordingly, we conclude that the district court did not abuse its discretion in sentencing Searcy as it did in the modified sentence.

The judgment of conviction entered by the trial court herein is affirmed. The trial court’s order dated October 3, 1988, correcting the sentence imposed on Searcy in his absence, is vacated and the cause remanded to the trial court for imposition of a valid sentence with the defendant present as required by I.C. § 19-2505, I.C.R. 43(a), and Lopez v. State, 108 Idaho 394, 700 P.2d 16 (1985).

BOYLE, J., and WOODLAND, J. pro tem., concur.

1 . I.C. § 18-207 reads sis follows:

18-207. Mental condition not a defense— Provision for treatment during incarceration— Reception of evidence. — (a) Mental condition shall not be a defense to any charge of criminal conduct.

(b) If by the provisions of section 19-2523, Idaho Code, the court finds that one convicted of crime suffers from any mental condition requiring treatment, such person shall be committed to the board of correction or such city or county official as provided by law for placement in an appropriate facility for treatment, having regard for such conditions of security as the case may require. In the event a sentence of incarceration has been imposed, the defendant shall receive treatment in a facility which provides for incarceration or less restrictive confinement. In the event that a course of treatment thus commenced shall be concluded prior to the expiration of the sentence imposed, the offender shall remain liable for the remainder of such sentence, but shall have credit for time incarcerated for treatment.

(c) Nothing herein is intended to prevent the admission of expert evidence on the issues of mens rea or any state of mind which is an element of the offense, subject to the rules of evidence.

2 . The State argues that Searcy did not raise the issue before the trial court, and therefore it was waived. We observe, however, that the defense presented testimony from a psychiatric expert, Dr. Kenneth Ash, concerning alleged facts which may have some bearing on Searcy’s claim that he was mentally nonresponsible for the killing of Rice. We conclude that Searcy arguably raised this issue before the trial court and thus it is preserved. However, we reject Searcy’s claim. As discussed hereafter, there is no due process right under either the United States or Idaho Constitution to present such a defense. Rather, it is the prerogative of the legislature to decide (1) whether such a defense is available, and (2) what form such a defense will take.

3 . One of the earliest formulations of the insanity defense and one still in use in as many as sixteen states is the M’Naghten rule. This rule is stated as follows:

[T]o establish a defense on the ground of insanity, it must be clearly proven that, at the time of the committing of the act, the party accused was labouring under such a defective reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.

M’Naghten’s Case, 8 Eng.Rep. 718, 722 (1843).

Another test broadens the scope of the M’Naghten rule to include those who knew that their actions were wrong but who, as a result of a "disease of the mind,” were unable to exercise control over their actions. This "irresistible impulse" test is used to supplement the M’Naghten rule in approximately five states.

Many states follow a variation of the American Law Institute (ALI) test which is a combination of the M’Naghten Rule and the "irresistible impulse” test. The ALI standard reads:

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of the law.

(2) As used in this article, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.

American Law Institute, Model Penal Code (Proposed Official Draft, 1962), § 4.01, at p. 74. Among those states which follow the ALI test, some favor the word “wrongfulness” instead of "criminality.” Still others remove the word “substantial.”

New Hampshire is the only state which follows the Durham rule or "product” test. As set forth in Durham v. United States, 214 F.2d 862, 874-875 (D.C.1954), “a defendant is not criminally responsible if his unlawful act was a product of mental disease or defect.”

Three other states have adopted unique standards drawing in part from the cognitive right-wrong language of the M’Naghten rule and the "irresistible impulse” test while adding other considerations, such as "prevailing community standards" and “legal and moral aspects of responsibility.”

See, generally, I. Keilitz & J.P. Fulton, The Insanity Defense and its Alternatives: A Guide for Policymakers, Institute on Mental Disability and the Law, National Center for State Courts (October 1983).

4 . I.C. § 18-207(c) provides: "Nothing herein is intended to prevent the admission of expert evidence on the issues of mens rea or any state of mind which is an element of the offense, subject to the rules of evidence."

5 . Although the Court in Powell stated that "this court has never articulated a general constitutional doctrine of mens rea," the Idaho state statutory scheme retains on the prosecution the burden of proving the requisite state of mind, i.e., mens rea, and the other essential elements of the crime beyond a reasonable doubt, State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985).

6 . Three early state court decisions holding that statutes which abolish the insanity defense are unconstitutional are distinguishable because those decisions had involved state statutes which precluded any trial testimony of mental condition, including trial testimony which would have rebutted the state’s evidence of the defendant’s state of mind, i.e., mens rea, at the time he committed the offense. Those cases are State v. Lange, 168 La. 958, 123 So. 639 (1929); Sinclair v. State, 161 Miss. 142, 132 So. 581 (1931); and State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910).

7 . I.C. § 19-5306 provides in pertinent part:

(1) Upon request, each victim of a felony offense shall be:

(b) Consulted by the presentence investigator during preparation of the presentence report and have included in that report a statement of the impact which the defendant’s criminal conduct has upon the victim;

(c) Afforded the opportunity to address under oath, the court at sentencing;

8 .I.C.R. 32 provides in pertinent part:

(b) Contents of presentence report. ... [Whenever a full presentence report is ordered, it shall contain the following elements:

(1) The description of the situation surrounding the criminal activity with which the defendant has been charged, including the defendant’s version of the criminal act and his explanation for the act, the arresting officers’s version or report of the offense, where available, and the victim’s version where relevant to the sentencing decision.

(Emphasis added.)

9 . I.C.R. 43(c)(4) provides that the defendant need not be present if the trial court reduces a sentence under I.C.R. 35 based on leniency and not because the court is correcting an invalid sentence. However, if the sentence is invalid, the presence of the defendant is mandated by our decision in Lopez v. State, supra. See also State v. Money, 109 Idaho 757, 710 P.2d 667 (Ct.App.1985).