SEX: M RACE: W TYPE: N MOTIVE:
MO: Rape-slayer of girls and
DISPOSITION: Condemned in
Idaho on one count, 1994.
Supreme Court of Idaho
STATE v. WOOD
STATE of Idaho, Plaintiff-Respondent, v. James E. WOOD, Defendant-Appellant.
Nos. 21057, 22375.
October 09, 1998
Kehne & Adams Law Office, Boise, for appellant.
Rolf M. Kehne argued.Hon. Alan G. Lance, Attorney General; Lynn E.
Thomas, Deputy Attorney General, Boise, for respondent. Lynn E.
ON DENIAL OF REHEARING.
Substitute Opinion The Court's Prior Opinion Dated
June 19, 1998, is Hereby Withdrawn.
This is an appeal of a death sentence imposed upon
James Edward Wood on a plea of guilty for the murder of Jeralee
Underwood, an eleven-year-old girl. Following imposition of the
death sentence, Wood filed a petition for post-conviction relief which
was denied. Wood appeals the dismissal of his petition for post-conviction
Jeralee Underwood (Jeralee) resided in Pocatello,
Idaho with her family. On June 29, 1993, James Wood (Wood) was
visiting the home of a customer on Jeralee's paper route when she came
by to make a collection. Wood followed Jeralee when she left,
detained her with a false story, and forced her into his automobile.
Wood held Jeralee captive for over a day, during which time he
sexually molested her, then shot her in the head with a .22 caliber
pistol and hid her body by covering it with brush. According to the
findings of the district court, later “Wood returned to the site of
the murder, undressed the corpse, and mutilated the body by removing
the sex organs and severing the arms, head, and legs. He threw the
clothing and body parts into the Snake River. The body was later
recovered, with the exception of the right hand and right calf.”
A. Pre-Trial Proceedings
On July 6, 1993, Wood was arrested and charged with
kidnapping Jeralee Underwood. After hours of interrogation by Police
Detective Shaw, he confessed to the kidnapping, attempted rape and
murder of Jeralee. Wood also confessed to raping other local girls,
to committing several robberies and other killings, and to an
On July 7, 1993, Wood was arraigned and the law
firm of Whittier, McDougall, Souza, Murray and Clark was appointed as
public defender. A preliminary hearing on the kidnapping charge was
set for July 16, 1993. However, on July 12, 1993, an Amended
Complaint was filed charging Wood with twelve felonies, including the
first-degree murder and kidnapping of Jeralee and several other
kidnappings, rapes, and armed robberies. The public defender was
also appointed to represent Wood on the Amended Complaint. On that
date the public defender filed and served motions for discovery, for
continuance of the preliminary hearing, and a waiver of statutory
time. This was the public defender's first appearance for Wood and
Monte Whittier (Whittier) served as lead counsel.
On August 9, 1993, Whittier filed a Motion to Limit
Visitation which was intended to restrict media contact with Wood as
he made statements to members of the press that were detrimental to
his defense. The motion was granted and an order issued providing
that representatives of the media would only be allowed to phone or
visit Wood with the prior approval of Whittier. The Sheriff refused
to honor Whittier's request to remove a telephone from Wood's cell
which Wood used to call members of the press despite Whittier's
efforts to persuade him not to speak to the media.
While Wood awaited arraignment, Whittier drafted a
three-page contract for Wood's signature for the rights to write a
book about Wood and to obtain movie rights. Whittier did not sign
the contract and testified that the contract was a hoax. Whittier
testified that the contract was a ruse to get Wood to stop talking to
the media. At approximately the same time, Whittier organized a
press conference at which Wood gave a televised confession to the
murder of Jeralee and to other serious charged and uncharged crimes.
Wood waived a preliminary hearing and was bound
over to the district court. Wood was arraigned on August 31, 1993,
in district court and entered pleas of not guilty to all counts
alleged in the Information. A jury trial was set for December 7,
1993. The district court granted defense motions for an investigator
and psychiatric examination. Hearings on other defense motions were
set for September 14, 1993.
On September 13 or 14, Whittier tape recorded a
conversation he had with Wood concerning his plea. In that
conversation Wood indicated he wished to change his plea to guilty but
said he wanted to have the psychiatric examination completed in order
to determine his competency to aid in his own defense before he pled
guilty. During this conversation, Whittier told Wood that he
represented to the court and prosecution that Wood was competent.
Following a recess at the September 14 hearing and
prior to the completion of the psychiatric evaluation, Wood returned
to court, withdrew his prior pleas of not guilty and entered guilty
pleas to one count of first-degree murder, one count of first-degree
kidnapping, and two counts of rape. The remaining charges were
dismissed without prejudice. The district court accepted the guilty
pleas. The court ordered a presentence investigation (PSI) and
ordered that the report of defense's psychiatric expert, Dr. Vicky
Gregory, be included in the PSI. Whittier did not object.
A sentencing hearing was held on December 7, 1993,
during which Whittier presented no mitigating evidence, but Dr.
Gregory testified in aggravation for the prosecution. On January 13,
1994, the court issued its decision on the defense's objections to the
information in the presentence report, which did not include an
objection to the admission of Dr. Gregory's report. On January 14,
1994, the district court issued its findings concerning consideration
of the death penalty and sentenced Wood to death for the murder of
Jeralee. The court also imposed consecutive terms of fixed life on
each of the kidnapping and rapes to which Wood had pled guilty.
On January 16, 1994, Whittier appealed the sentence
B. Post-Conviction Proceedings
On February 7, 1994, Whittier filed a Petition for
Post-Conviction Relief, alleging that Wood's death sentence was
unconstitutional for reasons related to felony murder. On February
25, 1994, Whittier filed a motion to dismiss the notice of appeal.
This Court ordered that ruling on the motion to dismiss the appeal
would be reserved and appeal proceedings suspended. The matter was
remanded to the district court for a determination of whether Wood was
competent to dismiss his appeal.
Subsequently, the motion to dismiss the appeal was
withdrawn, Whittier withdrew as counsel for Wood and current counsel
was appointed. Counsel filed an Amended Petition for Post-Conviction
Relief on June 20, 1994. Several depositions were taken, and
extensions were granted as post-conviction counsel continued to
investigate and prepare. At one point the district court eventually
denied any further extensions and commenced the post-conviction review
The district judge denied all relief in the post-conviction
proceeding. Wood appealed this decision.
WOOD HAS NOT ESTABLISHED THAT JUDGE WINMILL
SHOULD HAVE REFUSED TO SIT ON THE CRIMINAL CASE.
Wood argues that Judge Winmill should have recused
himself without motion from either party on the basis that he had
close ties to the victims, the lead investigator and other
participants in the case. Wood points to the fact that Detective
Shaw, the victim and her family, and two of the lawyers in the firm
appointed to represent Wood all attended the same church and that the
judge saw the victim's father on a regular basis. Further, the judge
was required to assess the credibility of several of his fellow church
members. In addition, he was required to rule on the admissibility
of evidence concerning a purported church doctrine offered to impeach
members of the church who claimed that they had never heard of “blood
A. Standard of Review
The State asserts that “[w]hen issues on appeal are
not supported by propositions of law, authority, or argument, they
will not be considered.” State v. Zichko, 129 Idaho 259, 263, 923
P.2d 966, 970 ( 1996). “A party waives an issue cited on appeal if
either authority or argument is lacking, not just if both are lacking.”
Id. Wood supports this assignment of error with argument but no
authority, and, consequently, the State contends that Wood has waived
this issue on appeal. However, section 19-2827 of the Idaho Code (I.C.)
imposes an affirmative duty on this Court to review the imposition of
the death penalty. In addition, this Court must consider possible
errors in sentencing that are not raised by the defendant or were not
objected to at his trial. State v. Osborn, 102 Idaho 405, 631 P.2d
187 (1981). In Osborn, this Court stated:
[The] general rule applicable to appellate review
of error is not necessarily controlling where we are statutorily
required to undertake appellate review irrespective of the defendant's
contentions, if any. Death is clearly a different kind of punishment
from any other that may be imposed, and I.C. § 19-2827 mandates that
we examine not only the sentence but the procedure followed in
imposing that sentence regardless of whether an appeal is even taken.
This indicates to us that we may not ignore unchallenged errors.
Moreover, the gravity of a sentence of death and the infrequency with
which it is imposed outweighs any rationale that might be proposed to
justify refusal to consider errors not objected to below.
Id. at 410-11, 631 P.2d at 192-93. Consequently,
the Court will consider Wood's claim.
B. Judge Winmill did not Abuse his Discretion in
Hearing Wood's Case
Although Wood's trial counsel did not move to
disqualify Judge Winmill at trial, this Court must still determine if
Judge Winmill had an affirmative duty to recuse himself because of his
affiliations with the Underwoods and their mutual church membership.
The Code of Judicial Conduct, originally adopted by this Court on
September 27, 1976, provides: “Judges should disqualify themselves in
proceedings in which impartiality might reasonably be questioned or
where personal knowledge of disputed evidentiary facts might
reasonably affect their impartiality in the proceeding.” code of
Judicial Conduct Canon 3(C)(1). “Whether a judge's involvement in a
case reaches a point where disqualification from further participation
in a defendant's case becomes necessary is left to the sound
discretion of the judge himself.” Sivak v. State, 112 Idaho 197, 206,
731 P.2d 192, 201 (1986). There is no indication Judge Winmill had
“personal knowledge of disputed evidentiary facts.” Therefore, the
question is whether Judge Winmill placed himself in a position in
which his “impartiality might reasonably be questioned” in sitting on
“A judge does not have an affirmative duty to
withdraw from cases which merely tangentially relate to the judge's
participation in an organization or committee.” State v. Knowlton,
123 Idaho 916, 920, 854 P.2d 259, 263 (1993). The same rule applies
to a judge's involvement with a religious organization. It is
inevitable that many judges will have church affiliations and that
there will be occasions in which they are called upon to decide
matters related to members of the same church. Church affiliation
alone is not a reasonable basis for questioning a judge's impartiality.
Judge Winmill did not abuse his discretion in hearing the case.
CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL
Article I, § 13 of the Idaho Constitution assures
criminal defendants of “reasonably competent assistance of counsel.” Gibson
v. State, 110 Idaho 631, 635, 718 P.2d 283, 287 (1986). Under a
state constitutional analysis, a defendant must establish “that the
conduct of counsel contributed to the conviction or to the sentence
imposed” to successfully assert a claim of ineffective assistance of
counsel. Aragon v. State, 114 Idaho 758, 761, 760 P.2d 1174, 1177
(1988) (quoting State v. Tucker, 97 Idaho 4, 12, 539 P.2d 556, 564
(1975)). On review, however, it is presumed that trial counsel was
competent and that trial tactics were based on sound legal strategy. Id.
Aragon noted that the Idaho Constitution can be read to afford a
broader right to effective assistance of counsel than does the federal
constitution, but did not define any difference between the rights
afforded under the state and federal constitutions. Id.
The standard for evaluating a claim of ineffective
assistance of counsel was set forth by the U.S. Supreme Court in
Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333
(1980), and in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). Subsequent to Aragon, Idaho explicitly
adopted this standard. Giles v. State, 125 Idaho 921, 924, 877 P.2d
365, 368 (1994), cert. denied, 513 U.S. 1130, 115 S.Ct. 942, 130 L.Ed.2d
886 (1995). “[C]ounsel's performance must have been so incompetent
that the trial can not be relied upon as having produced a just result.
It is for the accused to show that counsel made serious errors and
that the errors resulted in actual prejudice.” Id. (citing Strickland,
466 U.S. at 686, 104 S.Ct. 2052). The two tests which must be met in
order to be entitled to relief are: (1) a showing that counsel's
performance fell below an objective standard of reasonableness, and
(2) a showing that, but for counsel's errors, the result of the
proceedings would have been different. State v. Charboneau, 116 Idaho
129, 137, 774 P.2d 299, 309 (1989), overruled on other grounds by
State v. Card, 121 Idaho 425, 432, 825 P.2d 1081, 1088 (1991).
An appellate court reviews the district court's
factual findings to determine whether they were clearly erroneous. Huck
v. State, 124 Idaho 155, 857 P.2d 634 (Ct.App.1993). The reviewing
court, however, exercises free and independent review of the district
court's application of law. Id. at 157, 857 P.2d at 636.
A. Failure to Move to Disqualify Judge Winmill
Counsel's decision not to move to disqualify Judge
Winmill pursuant to Idaho Criminal Rule 25(a), was based on the belief
that Judge Winmill would be less inclined to impose the death penalty
than other district judges who might draw the case. That was a
rational tactical decision that will not be second-guessed on review.
Giles, 125 Idaho at 924, 877 P.2d at 368; State v. Roles, 122 Idaho
138, 145, 832 P.2d 311, 318 (Ct.App.1992).
B. Failure to Move to Suppress Wood's Statements
to Detective Shaw
Although not specifically listed as an issue on
appeal, Wood argues that he was not afforded effective assistance of
counsel by reason of Whittier's failure to litigate suppression issues.
A review of the proceedings for post-conviction relief indicates
that there were two suppression issues raised by Wood: 1) Wood argued
that the arrest and search warrants were issued based upon Detective
Shaw's affidavit and testimony after a twenty to thirty minute off-the-record
discussion between the magistrate, Shaw and the prosecutor, and 2)
Wood argued that Whittier should have sought suppression of Wood's
confession to Detective Shaw on the basis that he was not given
Miranda warnings until approximately one hour after his arrest.
The district court determined that Wood did not
show a basis to invalidate the arrest warrants and search warrants,
finding that probable cause had been shown for their issuance.
Whatever was said off the record could neither add nor detract from
the conclusion that the record established probable cause. The
district court concluded the following:
This leads ineluctably to the conclusion that Wood
has not met his burden of showing that Whittier's conduct fell below
an objective standard of reasonableness. This also compels the
conclusions that, even if the Court were to find that Whittier's
performance was deficient, there was no prejudice which resulted from
the failure to file a motion to suppress the warrants.
The district court's findings and conclusions are
supported by the record, and there has been nothing submitted by way
of argument or authority on appeal that would lead to a different
Wood also argues that there should have been a
motion to suppress his statements to Detective Shaw. Wood was arrested
at approximately 7:30 p.m. and signed a waiver of rights at
approximately 8:30 p.m. The district court found that Wood made no
incriminating statements until after he had waived his Miranda rights
and had signed the waiver of rights form. The record supports the
district court's conclusion that Wood's statements would not have been
suppressed, and there has been nothing submitted on appeal by way of
authority or argument that would lead to a different conclusion.
Wood has not shown any resulting prejudice from the failure to file a
motion to suppress. Consequently, he has not established the claim
of ineffective assistance of counsel in this regard.
C. Facilitation of the Press Conference
Whittier arranged for a press conference at which
Wood made incriminating statements. Prior to this time Wood had
initiated calls to members of the press and had responded to calls
from the press despite Whittier's advice to Wood that he should
refrain from such communications. Apparently Whittier's thought in
arranging for the press conference was that this would demonstrate to
Wood that he could not trust the press to convey the information he
wished to give in the manner he desired. Whatever the theory, it was
flawed due to the obvious risk involved that Wood might make
statements that could be used against him. Counsel's conduct in this
regard fell below an objective standard of reasonableness. However,
the second element to establish ineffective assistance of counsel is
that, but for counsel's errors, the result of the proceedings would
have been different. Charboneau, 116 Idaho at 137, 774 P.2d at 309.
Wood has not met the second element.
Wood had already confessed to Detective Shaw. Both
the district court and this Court have ruled that Wood has shown no
basis to suppress that confession. Also, contrary to counsel's
advice, Wood had already admitted to members of the press that he
killed Jeralee. Whittier's tactic was ill-advised, but it was
apparently born of desperation to control a client who was
uncontrollable. Once again, tactical decisions will not be second-guessed
on review. Giles, 125 Idaho at 924, 877 P.2d at 368.
D. Waiver of the Preliminary Hearing
Wood argues that it was ineffective assistance of
counsel to waive the preliminary hearing without obtaining concessions
from the prosecution. There is no showing as to what Wood might have
obtained as a concession. As the district court determined, Wood
wanted to waive the preliminary hearing. He did not want to force
the Underwoods to testify, and he did not want his conduct with
Jeralee's body post-mortem to become public. There is no showing
that counsel's performance fell below an objective standard of
reasonableness or that the result of the proceeding would have been
different if a preliminary hearing had been held. Waiver of the
preliminary hearing did not constitute ineffective assistance of
E. Entry of Guilty Plea
The district court determined that Wood wanted to
plead guilty. That was his decision to make. There is evidence
that Wood would have preferred to have the psychological evaluation
completed before entering the plea, but he elected to proceed before
that time. The record is clear that had the psychological evaluation
indicated that he was not competent to aid in his own defense, the
plea could have been withdrawn. There is no indication in the
psychological evaluation that he was not competent to aid in his own
defense. There is no evidence that delaying the plea would have had
any effect upon the outcome. Wood was insistent upon pleading guilty.
There is no basis to find that Whittier could have prevented Wood
from pleading guilty. Delay would not have changed the outcome.
F. Failure to Present Mitigating Evidence
Whittier did not present mitigating evidence at the
sentencing hearing. The district court noted that Whittier's efforts
were minimal, that he did not employ a mitigation specialist or
attempt a detailed investigation on his own. The district court also
observed that no evidence was presented at the post-conviction review
proceeding identifying mitigating evidence. There was nothing
submitted to the district court or to this Court that identifies any
mitigating evidence that might have changed the outcome of these
proceedings. Wood has not shown ineffective assistance of counsel in
G. Failure to Object to the District Court's Use
of Dr. Gregory's Report
The district court determined that it would use Dr.
Gregory's report in considering what sentence Wood was to receive.
Whittier did not object to this, despite the fact that the report had
not been completed and its contents could not be known. Subsequently,
the prosecution called Dr. Gregory as a witness in aggravation.
Again, this was done without objection from Whittier. This Court
finds that Whittier's failure to object was ineffective assistance of
counsel and will more fully explain our reasoning below in part VII of
H. Motion to Dismiss the Appeal Without Wood's
Whittier moved to dismiss the appeal without Wood's
consent. Whittier claims he did this in order to obtain appointment
of other counsel for Wood. There are more appropriate methods to
obtain this result, such as a motion to withdraw. Proceeding by a
motion to dismiss the appeal falls below an objective standard of
reasonableness, since it jeopardized Wood's rights. However, it is
clear that this action did not affect the outcome of the proceedings.
The present appeal preserves all rights which Wood might have.
Wood lost nothing as a consequence of the motion to dismiss the
CONFLICT OF INTEREST
A. Wood Failed to Establish Whittier had a
Conflict of Interest Such that He was Denied Effective Assistance of
Wood maintains that Whittier had conflicts of
interest which precluded him from providing effective representation.
Those purported conflicts consist of: (1) associations with the
Underwood family by other members of the public defender's firm, (2)
Whittier's personally held religious beliefs that allegedly conflicted
with his representation of Wood, and (3) an alleged financial interest
created by the book and movie contract which Whittier drafted for Wood.
Prejudice to a criminal defendant is presumed “only
if the defendant demonstrates that counsel ‘actively represented
conflicting interests' and that ‘an actual conflict of interest
adversely affected his lawyer's performance.’ ” Burger v. Kemp, 483
U.S. 776, 783, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (quoting
Strickland, 466 U.S. at 692, 104 S.Ct. 2052). Wood bears the burden
of showing “active representation of competing interests” in order to
establish a conflict of interest implicating the protection of the
Sixth Amendment. Id. In addition to showing an active representation
of competing interests, a defendant must show that an actual conflict
adversely affected counsel's performance. Holloway v. Arkansas, 435
U.S. 475, 482, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).
The Idaho Rules of Professional Conduct set forth
the standards for conflicts of interest. Rule 1.7 states, in relevant
(b) A lawyer shall not represent a client if the
representation of that client may be materially limited by the
lawyer's responsibilities to another client or to a third person, or
by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the
representation will not be adversely affected; and
(2) the client consents after consultation.
1. Relationships Between Members of Whittier's
Firm and the Underwood Family
Wood argues that certain facts show a close
relationship existed between two members of Whittier's firm (Bryan
Murray and John Souza) and the Underwood family. Those facts include
(1) Murray was Underwood's spiritual leader until
five or six months before Jeralee was abducted;
(2) Murray saw the Underwoods at least one time, if
not three to four times, per week for years;
(3) Mrs. Murray provided comfort and meals to the
Underwood family after the abduction;
(4) Murray participated in a search team to find
(5) Murray and Souza were at the police station
while Wood was being interrogated for the purpose of assisting the
Chief of Police in breaking the news of Jeralee's death to the
(6) In his own words, Murray “strongly expressed
the view that the firm should have nothing to do with representing Mr.
Wood” because Murray “was very close to the Underwood family;”
(7) At the onset of the representation of Wood,
Murray offered condolences and emotional support to the Underwood
(8) Both Murray and Souza have been consulted by Mr.
Underwood in their roles as lawyers.
“While lawyers are associated in a firm, none of
them shall knowingly represent a client when any one of them
practicing alone would be prohibited from doing so by Rule 1.7,
1.8(c), 1.9 or 2.2.” I.R.C.P. 1.10.
Two members of the public defender's firm had
personal associations with the Underwood family. However, Murray's
and Souza's belief that they should not represent Wood was based on
personally held beliefs, not preclusive conflicts of interest as set
forth in I.R.C.P. 1.7, 1.8(c), 1.9, or 2.2. Wood has failed to show
that any personal associations with the Underwoods by members of the
firm who did not participate in the defense of this case affected
Whittier's representation of Wood.
2. Book and Movie Rights Contract
Whittier's preparation of a book and movie rights
contract for Wood's signature raises the question of whether Whittier
had a financial interest in the case which created a conflict of
interest resulting in ineffective assistance of counsel. Whittier
did not sign the contract and testified that he did not intend to
actually obtain any rights through the contract. Apparently this was
another unusual tactic to attempt to control an uncontrollable client.
Whittier apparently thought that Wood would not be as willing to
diminish the value of a story that might be sold by talking to members
of the press. The district court noted the ethical issues presented
by this tactic but correctly focused on whether Whittier had an actual
conflict of interest, and, if so, if the conflict adversely affected
his performance. Holloway, 435 U.S. at 482, 98 S.Ct. 1173.
The district court found that Whittier never signed
the contract and had no intention of acquiring any rights under the
contract. Consequently, he never actively represented any interest
adverse to that of Wood. These findings and the conclusion of the
district court are supported by the evidence submitted in the post-conviction
The district court determined that the existence of
the purported contract did not influence the defense strategy. In
fact Whittier conducted the defense in a manner to diminish “the glare
of publicity which surrounded this case.” There was no effort by
Whittier to sensationalize the case and thereby increase the value of
any book or movie rights. The record supports these findings.
The district court concluded “that no actual
conflict of interest existed with regard to the book/movie contract,
and that, in any event, Whittier's representation of Wood was not
adversely affected by the existence of any such contract.” These
determinations are supported by the record. Wood has not shown that
his right to effective assistance of counsel was violated.
3. Whittier's Personal Beliefs
Wood has not shown that Whittier had any personal
beliefs that constituted a conflict of interest and interfered with
WOOD'S REQUEST FOR ADDITIONAL FINANCIAL AND
A. Failure to Apply for Investigatory and Expert
Assistance Ex Parte
Wood claims that Whittier committed a grievous
error when he applied for investigative and expert assistance in open
court with notice to the prosecutor. Wood relies upon a statutory
procedure in the federal system and a process recognized by some state
decisions. See 21 U.S.C. § 848(q)(9); 18 U.S.C. § 3006A; State v.
Ballard, 333 N.C. 515, 428 S.E.2d 178 (N.C.1993).
Wood argues that he should have been permitted to
obtain financial and expert assistance without notice to the
prosecutor, and that Whittier should have attempted to obtain this
assistance through an ex parte procedure. Wood claims that the U.S.
Supreme Court's rationale in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct.
1087, 84 L.Ed.2d 53 (1985), leads to an inevitable conclusion that an
ex parte procedure for obtaining expert assistance is constitutionally
required. The issue dealt with by the U.S. Supreme Court in Ake was
the state court's denial of a defense motion for a psychiatric
evaluation at the state's expense when the defendant's mental state
was clearly in issue. The facts and the language used by the Court
in Ake indicates that Wood's proposed conclusion is not required.
The U.S. Supreme Court addressed the issue in these terms:
Our concern is that the indigent defendant have
access to a competent psychiatrist for the purpose we have discussed,
and as in the case of the provision of counsel we leave to the States
the decision on how to implement this right.
Ake, 470 U.S. at 83, 105 S.Ct. 1087.
Idaho Code § 19-852 provides for a right to counsel
for indigent persons and a right to the “necessary services and
facilities of representation (including investigation and other
preparation).” I.C. § 19-852(a)(2). Nothing in this section
guarantees an ex parte application for the assistance. The fact that
the prosecutor knows of the application for such assistance does not
deny the defendant due process. Whittier did not provide ineffective
assistance of counsel by making the requests for assistance in open
court with notice to the prosecutor.
B. Appointment of an Independent Judge to Rule
on Requests for Financial and Expert Assistance
Coordinate with the argument that he was entitled
to make requests for investigative and expert assistance without
notice to the prosecutor, Wood argues that the district court should
have appointed a so-called “money judge” to rule on the requests for
funding the investigation and to pay experts.
This Court has addressed the process to be followed
in granting financial assistance to indigent persons pursuant to I.C.
It is thus incumbent upon the trial court to
inquire into the needs of the defendant and the circumstances of the
case, and then make a determination of whether an adequate defense
will be available to the defendant without the requested expert or
investigative aid. If the answer is in the negative, then the
services are necessary and must be provided by the state. Such a
review necessarily involves the exercise of the sound discretion of
the trial court.
State v. Olin, 103 Idaho 391, 395, 648 P.2d 203,
207 (1982). The statute does not provide for the appointment of a
“money judge,” and this Court has stated that the grant or denial of
assistance is left to the sound discretion of the trial court. There
is no constitutional infirmity in this process. Whittier did not
provide ineffective assistance of counsel by failing to seek
appointment of another judge to make decisions concerning the
financing of investigative and expert assistance to the defense, and
the district court did not err in failing to undertake such an
appointment on its own initiative.
CONSIDERATION OF DR. GREGORY'S REPORT AND
TESTIMONY INFLUENCED THE DISTRICT COURT IN ITS DETERMINATION OF
Prior to sentencing Wood, the district judge
ordered a presentence investigation pursuant to Idaho Criminal Rule
32. The Rule states that “[t]he presentence investigator may
recommend a psychological evaluation, but the decision as to whether
to order a psychological evaluation is to be made by the sentencing
judge.” I.C.R. 32(d). The scope of this rule when the court makes
the determination that a psychological report is warranted and orders
one for inclusion in the presentence report is not in issue in this
case. Dr. Gregory had already been retained pursuant to the
defense's request and order of the district court to assist the
defense. If a psychiatrist or psychologist had been appointed by the
court for purposes of a presentence investigation, counsel for Wood
would have had the opportunity to advise his client of the possible
uses of the information and of the privilege against self-incrimination.
In the context in which this report was prepared, Wood and his
attorney were deprived of this opportunity. Wood gave information on
the basis that Dr. Gregory was his psychiatrist to assist him in his
Idaho Rule of Evidence 503 provides:
Criminal action. A patient has a privilege in a
criminal action to refuse to disclose and to prevent any other person
from disclosing confidential communications made for the purpose of
diagnosis or treatment of the patient's mental or emotional condition,
including alcohol or drug addiction, among the patient, the patient's
psychotherapist, and persons who are participating in the diagnosis or
treatment under the direction of the psychotherapist, including
members of the patient's family.
Evidentiary rules concerning privileges “apply at
all stages of all actions, cases and proceedings.” I.R.E. 101(c).
In State v. Wilkins, 125 Idaho 215, 868 P.2d 1231 (1994), this Court
found that it was a violation of a criminal defendant's privileged
communication with his psychotherapist for the trial court to compel
the defendant's psychiatrist to testify at sentencing about
communications with the defendant.
Whittier did not object to the inclusion of Dr.
Gregory's report as part of the presentence report. Although there
are instances in which defense counsel properly would not object,
knowing that contents of the psychiatric report are favorable to the
defendant, in this case the report had not been written, and Whittier
did not know whether it would be favorable or unfavorable. As noted
in section IV, the failure to object fell below an objective standard
Whittier also did not object to the prosecution
calling Dr. Gregory as a witness at the sentencing hearing. Failure
to object to the prosecution calling Dr. Gregory as a witness fell
below an objective standard of reasonableness as well.
In considering the death penalty the district court
found, as an aggravating factor, that “[t]he defendant, by prior
conduct or conduct in the commission of the murder at hand, has
exhibited a propensity to commit murder which will probably constitute
a continuing threat to society. I.C. 19-2515(g)(8) (1987).” In
making this finding considering the death penalty, the district court
relied upon the findings of Dr. Gregory, stating the following:
The Court also accepts the findings of Dr. Vicki
Gregory, the Court-appointed Psychologist who examined the defendant,
who concluded in her Neuropsychological Evaluation that the
defendant's “sexual paraphilias cannot be treated and will escalate in
intensity, frequency and violence ․ [and that] [t]he Antisocial
Personality Disorder cannot be treated.” Dr. Gregory also concluded
that “Mr. Wood poses an extreme risk of danger for the public. He
also poses a high risk for other inmates and should be isolated from
the general prison population.”
Wood has established that, but for counsel's errors,
the result of the proceedings would have been different. Wood was
denied effective assistance of counsel by Whittier's failure to object.
Consequently, the district court's finding of the existence of the
aggravating factor set forth in I.C. § 19-2515(g)(8) (1987) is vacated.
IDAHO'S STATUTORY SCHEME FOR CONSIDERATION OF
THE DEATH PENALTY IS CONSTITUTIONAL, SUBJECT TO REVIEW FOR PROPER
Wood makes a general assertion that Idaho's
statutory scheme for consideration of the death penalty violates the
Idaho and U.S. Constitutions. As in the past, this Court finds
Idaho's statutory scheme for consideration of the death penalty to be
In Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct.
1759, 64 L.Ed.2d 398 (1980), the U.S. Supreme Court held that states
can impose the death penalty for certain crimes without running afoul
of the federal constitutional prohibition against cruel and unusual
punishment, but only if the manner in which the penalty is selected
“provide[s] a ‘meaningful basis for distinguishing the few cases in
which [the penalty] is imposed from the many cases in which it is not.’ ”
Id. at 427, 100 S.Ct. 1759 (quotation omitted) (second alteration in
original). This Court has determined that Idaho's statutory scheme
for consideration of the death penalty provides a meaningful basis for
and is not arbitrary and capricious in distinguishing death penalty
cases from other capital offenses. State v. Card, 121 Idaho 425, 825
P.2d 1081 (1991); State v. Osborn, 102 Idaho 405, 417, 631 P.2d 187,
199 (1981) (“ [A] limiting construction is indispensable if the state
is to meet its constitutional obligation ‘to tailor and apply its law
in a manner that avoids the arbitrary and capricious infliction of the
death penalty.’ ”) (citation omitted).
Furthermore, this Court has upheld the
constitutionality of its death penalty statutes on numerous occasions.
Osborn, 102 Idaho at 405, 631 P.2d at 187. See also State v.
Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991) (determining that I.C.
§ 19-2515 does not violate the Eighth Amendment to the federal
constitution and Article I, § 6 of the Idaho Constitution), overruled
on other grounds by State v. Card, 121 Idaho 425, 432, 825 P.2d 1081,
1088 (1991); State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989)
(death penalty statutes are not unconstitutional by placing burden on
defendant to come forward with mitigating circumstances because burden
to come forward with mitigating circumstances applies only if at least
one statutory aggravating circumstance is found to exist), overruled
on other grounds by Card, 121 Idaho at 432, 825 P.2d at 1088; State
v. Creech, 105 Idaho 362, 370, 670 P.2d 463, 471 (1983) (concluding
that the language of the statutory scheme is sufficiently narrow to
avoid the arbitrary and capricious infliction of the death penalty).
Wood has not shown that this long-standing precedent should be
Wood also makes some specific challenges to the
constitutionality of the aggravating circumstance set out in I.C.
§ 19-2515(g)(7). He claims that the (g)(7) aggravator is over broad,
arbitrary and violates the right to due process and constitutional
proscriptions against double jeopardy and cruel and unusual punishment.
The (g)(7) aggravating circumstance is established when the murder
is one defined in the first degree under I.C. § 18-4003(b), (c), (d),
(e) or (f), and was committed with the specific intent to cause the
death of a human being.1
The district court found the (g)(7) aggravator to apply because the
murder was a murder defined under § 18-4003(d), which reads: “Any
murder committed in the perpetration of, or attempt to perpetrate,
aggravated battery on a child under twelve (12) years of age, arson,
rape, robbery, burglary, kidnaping or mayhem is murder of the first
Wood claims that the (g)(7) aggravator is over
broad because it applies to all intentional murders of children under
the age of twelve without regard to the specific circumstances of
either the defendant or the crime. He also claims that the (g)(7)
aggravator makes an arbitrary distinction: intentional murders of
children under the age of twelve are all made death eligible by
aggravator (g)(7) while otherwise identical murders committed by
identical defendants are not. There is no constitutional infirmity
in making the intentional killing of a young child an aggravating
factor making the defendant death eligible. Furthermore, a
defendant's ability to present mitigating evidence provides the
narrowing function required to distinguish intentional murders of
children under the age of twelve warranting imposition of the death
penalty from murders of children under twelve which do not warrant
imposition of the death penalty. The (g)(7) aggravator is not over
broad or arbitrary.
Wood also claims that an aggravator which
duplicates the crime itself violates constitutional proscriptions
against double jeopardy and cruel and unusual punishment in that the
elements of the (g)(7) aggravator found by the district court are the
same as elements found under § 18-4003(d) defining first degree murder.
A similar argument was dismissed by the U.S.
Supreme Court in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98
L.Ed.2d 568 (1988). In Lowenfield, the Supreme Court held that a
death sentence did not violate the Eighth Amendment simply because the
single statutory aggravating circumstance found by the jury duplicated
an element of the underlying offense of first-degree murder. The
Lowenfield Court stated:
It seems clear to us ․ that the narrowing function
required for a regime of capital punishment may be provided in either
of ․ two ways: The legislature may itself narrow the definition of
capital offenses, as ․ Louisiana [has] done, so that the jury finding
of guilt responds to this concern, or the legislature may more broadly
define capital offenses and provide for narrowing by jury findings of
aggravating circumstances at the penalty phase․
Here, the “narrowing function” was performed by the
jury at the guilt phase when it found defendant guilty of three counts
of murder under the [Louisiana statutory] provision that “the offender
has a specific intent to kill or to inflict great bodily harm upon
more than one person.” The fact that the sentencing jury is also
required to find the existence of an aggravating circumstance in
addition is no part of the constitutionally required narrowing process,
and so the fact that the aggravating circumstance duplicated one of
the elements of the crime does not make this sentence constitutionally
Id., 108 S.Ct. at 555.
The Idaho Legislature has narrowed the class of
murders that may be punished by death in I.C. §§ 18-4003 and 18-4004.2
The fact that the (g)(7) aggravator in I.C. § 19-2515 duplicates an
element of first degree murder in I.C. § 18-4003 does not violate any
THE DEATH PENALTY STATUTES WERE NOT
UNCONSTITUTIONALLY APPLIED TO WOOD.
Wood next argues that death penalty statutes are
“administered in an unconstitutional manner” and, hence, were
unconstitutionally applied to him. The district court found three
aggravating factors to exist in sentencing Wood: I.C.
§ 19-2515(g)(6), (g)(7) and (g)(8). The district court's finding of
aggravating factors I.C. § 19-2515(g)(6) and (g)(7) was constitutional.
A. I.C. § 19-2515(g)(6)
The district court found the existence of the
aggravating circumstance set out in I.C. § 19-2515(g)(6), which is
established when “[b]y the murder, or circumstances surrounding its
commission, the defendant exhibited utter disregard for human life.”
This Court has ruled that this aggravator must be limited to the “acts
or circumstances surrounding the crime which exhibit the highest, the
utmost, callous disregard for human life, i.e., the cold-blooded
pitiless slayer.” Osborn, 102 Idaho at 419, 631 P.2d at 201.
In finding the (g)(6) aggravator to exist, the
district court considered Wood's conduct seven days subsequent to the
The Court finds beyond a reasonable doubt, that the
circumstances surrounding the murder of Jeralee Underwood, including
the defendant's use of her body for his own sexual gratification,
followed by his callous termination of her life, and his sexual abuse
and mutilation of her body, exhibit the highest, the utmost disregard
for human life, i.e., the acts of a cold-blooded pitiless slayer.
(Emphasis added). The “sexual abuse and
mutilation of [Jeralee's] body” was later described by the district
court as follows:
Wood returned to the site of the murder, undressed
the corpse, and mutilated the body by removing the sex organs and
severing the arms, head, and legs. He threw the clothing and body
parts into the Snake River.
The district court was correct in concluding that
post-mortem conduct could be considered in analyzing the (g)(6)
aggravator, although some jurisdictions have held that post-mortem
conduct can not be considered in finding an aggravating circumstance
under their statutory schemes. See, e.g., Jackson v. State, 451
So.2d 458, 463 (Fla.1984) (“Actions after the death of the victim are
irrelevant in determining [the especially heinous, atrocious or cruel]
aggravating circumstance.”). In interpreting I.C. § 19-2515(g)(6),
this Court agrees with the Supreme Court of Georgia:
We cannot agree that the “offense of murder”
terminates at the instant of death, so that nothing that happens
afterward can be considered in determining whether the offense of
murder is outrageously or wantonly vile, horrible or inhumane.
Conklin v. State, 254 Ga. 558, 331 S.E.2d 532, 539
(Ga.1985). The Georgia standard, while phrased in terms of
“outrageously or wantonly vile, horrible or inhumane,” is analogous to
the exhibition of “utter disregard for human life.” I.C.
§ 19-2515(g)(6). In Drane v. State, 265 Ga. 255, 455 S.E.2d 27 (Ga.1995),
the court stated, “[p]ost-mortem mutilation of a body may show
depravity of mind.” Id. at 32. See also Cavanaugh v. State, 102 Nev.
478, 729 P.2d 481, 486 (Nev.1986) (mutilation of body parts shows
depravity of mind). The mutilation of Jeralee's body was a
circumstance surrounding the commission of the crime. In the most
gruesome terms, it demonstrates Wood's callous disregard for human
Wood next claims that the “propensity to commit
murder” aggravating factor, I.C. § 19-2515(g)(8), overlaps with the
“utter disregard” factor, I.C. § 19-2515(g)(6). The Court has
vacated the district court's finding of the (g)(8) aggravating
circumstance and, therefore, it is not necessary to address this issue.
Wood also claims that the district court erred when
it considered the same evidence relating to the (g)(5) aggravator (the
murder was especially heinous, atrocious and cruel) in finding the
(g)(6) aggravator to have been established. It is clear, following
State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989), overruled on
other grounds by State v. Card, 121 Idaho 425, 432, 825 P.2d 1081,
1088 (1991), that these factors are not duplicative: “Today, this
Court has held that these two factors are not duplicative.” Id. at
153, 774 P.2d at 323 (citing to State v. Fain, 116 Idaho 82, 774 P.2d
252 (1989)). In Fain, the Court held that “[t]he aggravating factors
specified in §§ 19-2515(g)(5) and (g)(6) describe two quite different
kinds of culpability.” Fain, 116 Idaho at 99, 774 P.2d at 269.
However, Wood argues that, according to State v. Osborn, 102 Idaho
405, 631 P.2d 187 (1981), this Court must presume that the legislature
did not intend that the enumerated aggravators overlap and therefore
the same facts cannot be considered in support of more than one
Wood misconstrues the holding in Osborn. In
determining whether a certain aggravating circumstance exists, the
sentencing judge may consider the same evidence he considered in
relation to a different aggravator so long as he finds additional
aggravating evidence to support a finding of that particular
aggravator beyond a reasonable doubt. Sivak v. State, 112 Idaho 197,
210, 731 P.2d 192, 205 (1986). The record reveals that the district
court properly considered additional aggravating evidence to support
its finding of the (g)(6) aggravating factor. In any event, once a
statutory aggravating circumstance is properly found, the court may
impose the death penalty if the mitigating circumstances do not
outweigh that aggravator:
For the mitigating circumstance in this case to
outweigh “any” aggravating circumstances found, the mitigating
circumstances must outweigh each of the aggravating circumstances,
since chance may select either one.
Charboneau, 116 Idaho at 153, 774 P.2d at 323.
B. I.C. § 19-2515(g)(7)
Wood claims that he received insufficient notice
that the (g)(7) aggravating factor could be applied because he was
charged with premeditated murder and not murder committed in the
course of a felony. This argument is not supported by the record.
Unlike State v. Lankford, 113 Idaho 688, 747 P.2d 710 (1987),
overruled by Lankford v. Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d
the record in this case reflects that on September 14, 1993, the
district court expressly advised Wood that the death penalty was a
possible sentence for the crimes with which he was charged.
Furthermore, the guilty plea questionnaire provided to Wood asked:
“What is the maximum prison sentence that you may receive for each
crime?” Wood responded, “LIFE IN PRISON OR DEATH SENTENCE.”
The U.S. Supreme Court has pointed out that the
“existence [of a death penalty statute] on the statute books provided
fair warning as to the degree of culpability which the State ascribed
to the act of murder.” Dobbert v. Florida, 432 U.S. 282, 297, 97 S.Ct.
2290, 53 L.Ed.2d 344 (1977). The Information filed against Wood
charged a violation of I.C. § 18-4003(a). Although I.C.
§ 19-2515(g)(7) provides that the sentence of death may be imposed
when “[t]he murder was one defined as murder of the first degree by
section 18-4003, Idaho Code, subsections (b), (c), (d), (e) or (f),
and it was accompanied with the specific intent to cause the death of
a human being,” I.C. § 19-2515(g)(7) (1987), sufficient facts were
pled to afford Wood adequate notice that his charged offense would be
murder within I.C. § 18-4003(a) or (d).
C. I.C. § 19-2515(g)(8)
Once again, it is unnecessary to address the
constitutionality of I.C. § 19-2515(g)(8), as applied to Wood, based
on the holding that this aggravating circumstance was based upon
improper evidence. However, this Court notes that I.C. § 19-2515
requires the district court, when considering the imposition of the
death penalty, to find one statutory aggravating factor beyond a
reasonable doubt. State v. Sivak, 127 Idaho 387, 392, 901 P.2d 494,
499 (1995). Even though Wood was correct in his assertion that the
district court erred in considering the testimony of Dr. Gregory, it
does not have any effect on the ultimate imposition of the death
penalty. In his Findings of Fact and Conclusions of Law entered in
the post-conviction proceedings, the sentencing judge stated:
The Court clearly relied upon Dr. Gregory's report
in its sentencing. However, absent Dr. Gregory's input, the Court is
unable to conclude that it would not have sentenced Wood to death.
There was still evidence to support two statutory aggravating
circumstances under I.C. § 19-2515(g). In order to impose the death
penalty, under I.C. § 19-2515(c), only one aggravating factor need be
proven beyond a reasonable doubt. Thus, the lack of Dr. Gregory's
opinion might have prevented the Court from finding one statutory
aggravating circumstances [sic], but would not have avoided the
imposition of the death penalty.
Based upon these comments, and upon its own
independent review of the record, this Court concludes, beyond a
reasonable doubt, that the erroneously admitted testimony and report
of Dr. Gregory at the sentencing hearing did not contribute to the
sentencing judge's decision to impose the death penalty.
WOOD WAS NOT DENIED DUE PROCESS OF LAW BY THE
DISTRICT COURT'S REFUSAL TO GRANT HIM MORE TIME AND FINANCIAL
ASSISTANCE TO INVESTIGATE AND PREPARE FOR THE TRIAL OF THE PETITION
FOR POST-CONVICTION RELIEF.
Wood maintains that he was not allowed enough time
and financial assistance to adequately prepare for the trial of the
petition for post-conviction relief. “The granting or denial of a
motion for a continuance is vested in the sound discretion of the
trial court and will not be disturbed on appeal unless there has been
a clear abuse of discretion.” State v. Saunders, 124 Idaho 334,
336-37, 859 P.2d 370, 372-73 (Ct.App.1993) (citing State v. Richardson,
95 Idaho 446, 511 P.2d 263 (1973)). In addition, the denial of a
motion for continuance will not be an abuse of discretion unless it
can be shown that the substantial rights of the defendant have been
prejudiced. Id. at 337, 859 P.2d at 373. The standard of review for
a motion for continuance and additional financial assistance in a
post-conviction relief proceeding is also a review for abuse of
Present counsel for Wood was appointed on April 1,
1994, to represent Wood on the appeal and post-conviction review
proceedings. Wood's counsel requested forty-two days to file an
amended petition and asked that the trial not be scheduled until mid-August.
The district court granted the requests, ordering that the amended
petition for post-conviction relief be filed by May 13, 1994. The
district court scheduled trial for August 16, 1994. Thereafter, the
district court rescheduled trial for October 18, 1994, at the request
of Wood's counsel. The continuance was granted to permit counsel the
opportunity to retain expert witnesses and have pretrial motions heard.
Counsel for Wood subsequently requested that the October 18, 1994
trial date be vacated and the case continued. The district court
granted the request and re-set the trial for November 29, 1994,
advising counsel that no further continuances would be granted but
that counsel could present some witnesses by videotape deposition if
necessary to avoid difficulties in scheduling witnesses.
Trial began on November 29, but after six days of
trial, Wood's attorney advised the court there would be two or three
additional witness who were not immediately available to testify
because of scheduling problems. The district court set the trial to
resume on January 13, 1995. Thereafter, counsel for Wood requested a
continuance of the January 13 trial date, indicating that his expert
witnesses were not ready to testify and that he needed more funds for
testing. The district court authorized the expenditure of additional
funds for the testing and set the trial to resume February 22, 1995,
again advising counsel that no further continuances would be granted.
Immediately prior to the February 22 trial date, counsel for Wood
requested another continuance to retain additional expert witness.
The district court denied the request after a hearing. Counsel for
Wood then advised the court that he would call Wood as a witness and
requested that the trial resume on March 3, 1995. The trial was
continued until March 3, 1995, at which time counsel for Wood
indicated that he would not call Wood as a witness and that he had no
other witnesses to call at that time. The district court indicated
that the record was closed and scheduled the submission of post-trial
briefs. After extending the initial time, briefing was concluded on
May 26, 1995.
Nearly a year elapsed from the time counsel was
appointed to represent Wood in post-conviction review proceedings
until the evidence portion of those proceedings was closed. This was
adequate time to prepare and present whatever evidence was necessary
to properly present Wood's position. The district court granted the
defense's request for additional funds for testing that the defense
claimed was necessary. There is no indication that the defense was
deprived of either adequate time or adequate money to properly prepare
for the post-conviction relief trial. Since Wood had not shown that
any of his substantial rights had been violated, the district court
did not abuse its discretion in denying the motions for continuance
and additional financial assistance.
JUDGE WINMILL DID NOT ABUSE HIS DISCRETION IN
DENYING WOOD'S MOTIONS TO DISQUALIFY.
On July 11, 1994, Wood moved to disqualify Judge
Winmill pursuant to I.R.C.P 40(d) and I.C.R. 25. Judge Winmill
denied the motions. This Court reviews the decision to determine if
the judge abused his discretion in denying the motions. Sivak, 127
Idaho at 389, 901 P.2d at 496; State v. Brown, 121 Idaho 385, 392,
825 P.2d 482, 489 (1992). In Sivak, this Court stated:
[W]hen addressing a motion to disqualify brought
under Criminal Rule 25, which was denied, the judge must recognize the
case has been judged, that lasting opinions have been formed, and that
the judge must determine if the proper legal analysis which the law
requires can be performed. If the judge can make the proper legal
analysis, then the motion to disqualify should be denied.
127 Idaho at 389, 901 P.2d at 496 (citations
omitted). The Court of Appeals has pointed out that the “practice of
having the sentencing judge also handle the post-conviction relief
proceeding is approved by our Supreme Court absent a showing either of
actual bias or prejudice on the part of that judge.” Freeman v.
State, 114 Idaho 521, 524, 757 P.2d 1240, 1243 (Ct.App.1988).
There has been no showing of actual bias or
prejudice on the part of Judge Winmill in this case. He was in a
position to perform the proper legal analysis which the law requires
to be performed. He did not abuse his discretion in denying the
motions to disqualify.
THE DISTRICT COURT PROPERLY DENIED WOOD'S
REQUEST TO TAKE THE DEPOSITION OF THE PROSECUTING ATTORNEY.
Prior to trial of the claim for post-conviction
relief, Wood sought to take the deposition of the prosecuting attorney
to obtain “his recollection of the plea bargaining discussions between
himself and trial counsel, Monte Whittier.” The district court
denied the request.
Wood did not cite to authority for the assertion
that he should have the right to depose the prosecuting attorney, and
the district court noted that this Court has not ruled on the right of
a party to depose opposing counsel, including the prosecuting attorney.
The district court relied on California cases holding:
The circumstances under which opposing counsel may
be deposed are limited to those where (1) no other means exist to
obtain the information than to depose opposing counsel; (2) the
information sought is relevant and not privileged; (3) the
information is crucial to the preparation of the case.
Spectra-Physics, Inc. v. Superior Court, 198
Cal.App.3d 1487, 244 Cal.Rptr. 258, 263 (Cal.App. 6 Dist.1988);
Estate of Ruchti,12 Cal.App.4th 1593, 16 Cal.Rptr.2d 151 (Cal.App. 2
The Louisiana Supreme Court has recognized that the
practice of deposing attorneys of record is greatly disfavored,
because it results in “unnecessary delays, potential harassment, and,
in the extreme case, to the disqualification of an attorney.” Board
of Comm'rs of the New Orleans Exhibition Auth. v. Missouri Pac. R.R.,
647 So.2d 340, 340-41 (La.1994). But see Munn v. Bristol Bay Hous.
Auth., 777 P.2d 188, 196 (Alaska 1989) (an attorney is no moreentitled
to withhold information than any other potential witness, and may be
required to testify at a deposition or trial as to material, non-privileged
Considering the potential difficulties that may
arise if counsel may be deposed, the district court adopted proper
standards in determining whether Wood could depose the prosecuting
attorney. Applying those standards, Wood failed to establish that no
other means existed to obtain the information than to depose opposing
counsel. The information Wood sought was available from Whittier.
Wood also failed to establish that the information was crucial to the
preparation of the case. The district court properly denied Wood's
request to depose the prosecuting attorney.
THE DISTRICT COURT PROPERLY DENIED WOOD'S
REQUEST TO TAKE A DISCOVERY DEPOSITION OF THE COURT.
Wood claimed a need to depose the district judge
who presided in this case as the consequence of an unreported meeting
held between the district judge, defense counsel and the prosecutor
shortly before the guilty plea. The district court denied the
There is a prohibition against a judge testifying
in a trial over which the judge is presiding. I.R.E. 605. Judge
Winmill was the presiding judge in the post-conviction review
proceedings. If his deposition were taken, he would become a witness
in the post-conviction review proceedings and potentially would be
required to recuse himself at trial. There are several factors that
weigh strongly against such a result.
Consistent with the decisions of other
jurisdictions, this Court would not permit inquiry into the thought
process or the grounds upon which a case was decided by a judge. See
United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed.
1429 (1941) (a judge's thought process relevant to judicial decisions
is not within the purview of an examination). “Public policy and
convenience prohibit judges from being called as witnesses to state
the grounds upon which they decided former cases.” People v. Drake,
841 P.2d 364, 367 (Colo.Ct.App.1992). Consequently, Wood would not
have been allowed to inquire into what Judge Winmill thought when he
decided the case.
The question then is whether there were facts not
in the record that were relevant to the post-conviction review
proceedings and were not otherwise available to Wood. There has been
no such showing by Wood. The district court properly denied the
request for deposition.
WOOD DID NOT HAVE A RIGHT TO BE PRESENT AT THE
UNREPORTED MEETING HELD IN CHAMBERS.
Wood claims that the district court violated his
constitutional right to be present at the unreported meeting held
between the district judge, defense counsel and the prosecutor. A
defendant has the right to be present at all stages of a criminal
proceeding “if absence could, under some set of circumstances, be
harmful.” State v. Crawford, 99 Idaho 87, 95, 577 P.2d 1135, 1143
(1978) (citing Polizzi v. United States, 550 F.2d 1133, 1137-38 (9th
Cir.1976)). Wood's absence from the unreported meeting was not
harmful. While plea bargaining discussions may have occurred in the
meeting, the district court did not render any decision as a result of
the meeting which affected Wood's rights. Wood's subsequent entry of
a guilty plea was the result of an informed, voluntary decision made
by him, and not the result of any discussions which may have taken
place in the unreported meeting.
THE DISTRICT COURT DID NOT ERR IN REFUSING TO
ADMIT A NUMBER OF EXHIBITS RELATING TO L.D.S. CHURCH DOCTRINE AND IN
REFUSING TO ADMIT OR CONSIDER TESTIMONY CONCERNING THAT CHURCH.
In the post-conviction relief trial, the defense
sought to admit a variety of exhibits and the testimony of James
Spence, a minister and former member of the L.D.S. Church, for the
purpose of impeaching a statement by Whittier that he had not heard of
“blood atonement.” Spence gave examples of “blood atonement,”
including a sermon by Brigham Young stating: “There are sins that men
commit for which they cannot receive forgiveness in this world or in
that which is to come; and if they had their eyes opened to see their
true condition, they would be perfectly willing to have their blood
spilt upon the ground; and the smoke thereof might ascend to heaven
as an offering for their sins.”
The theory of the defense was that the doctrine of
“blood atonement” influenced several members of the church, including
Whittier, in their dealings with Wood. Further, the defense maintained
that church members who denied knowledge of the doctrine of blood
atonement were lying and concealing the influences that motivated them
in dealing with Wood.
The district court sustained the State's objection
to the admission of Spence's testimony and admission of a variety of
exhibits presenting evidence relating to “blood atonement,” ruling
that the evidence was not relevant. The district court ruled that
the only relevant religious beliefs were those of Wood and anybody who
discussed religion with him prior to sentencing, but that the general
teachings of the L.D.S. Church were not relevant. The district court
found that Spence could not speak to the issue of what Wood, Whittier,
or any other members of the Whittier firm believed with regard to the
doctrine of blood atonement.
The district court properly limited evidence to the
beliefs of those who dealt with Wood and the statements they made to
him. An exploration of the doctrine beyond that was not relevant.
Wood has asserted that refusal to admit the
evidence was a denial of due process. Determination of such a denial
would depend upon a finding that the evidence should have been
admitted. There was no due process violation in excluding the
THE DEFENSE HAS NOT DEMONSTRATED A CONFLICT OF
INTEREST THAT PRECLUDED THE DISTRICT COURT FROM RULING ON EVIDENCE
CONCERNING DOCTRINES OF THE L.D.S. CHURCH.
Wood also argues that the district court had a
conflict of interest in ruling on the evidence presented by the
defense concerning church doctrines. The Court has addressed these
issues and determined that the district judge did not have a conflict
AUTOMATIC SENTENCE REVIEW UNDER I.C. § 19-2827
This Court is obligated by statute to review the
record of the trial court proceedings and sentencing hearing in light
of the requirements of I.C. § 19-2827(c). I.C. § 19-2827; State v.
Wells, 124 Idaho 836, 837, 864 P.2d 1123, 1124 (1993). I.C.
§ 19-2827(c) requires that this Court review all death sentences and
that we specifically determine:
(1) Whether the sentence of death was imposed under
the influence of passion, prejudice, or any other arbitrary factor,
(2) Whether the evidence supports the judge's
finding of a statutory aggravating circumstance from among those
enumerated in section 19-2515, Idaho Code, and
(3) Whether the sentence of death is excessive.
I.C. § 19-2827(c).
As to the first element of the inquiry, this Court
finds that the sentence of death was in no way imposed under the
influence of passion, prejudice or any other arbitrary factor. The
sentence of death imposed upon Wood was based on a voluntary guilty
plea entered by Wood and substantiated by voluminous facts contained
in the record.
As to the second element of the inquiry, this Court
finds that the evidence supports the judge's findings as to the
aggravating circumstances found in I.C. § 19-2515(g)(6) and (g)(7).
See Part IX.A & B.
Finally, as to the third element of the inquiry,
the Idaho Legislature amended I.C. § 19-2827(c)(3) in 1994, rendering
the term “excessive” meaningless. See State v. Sivak, 127 Idaho 387,
393, 901 P.2d 494, 500 (1995); State v. Fields, 127 Idaho 904, 908
P.2d 1211 (1995). Consequently, this Court declines to undertake any
consideration of the “excessiveness” of Wood's sentence, beyond an
independent review to determine whether the district court's finding
and weighing of aggravating and mitigating factors is supported by the
The judgment of the district court imposing the
death penalty is affirmed since the Court has determined that the
district court properly applied two aggravating factors. The
district court's finding of the third aggravating factor under I.C.
§ 19-2515(g)(8) is vacated for the reason that improper evidence was
considered by the district court. Remand is unnecessary because the
district court has determined that, even if the finding regarding
§ 19-2515(g)(8) was improper, the sentence would have been the same.
The decision of the district court that Wood is not entitled to post-conviction
relief is affirmed.
I concur in all of the Court's opinion, except I
concur in the result of part IX (The Death Penalty Statutes Were Not
Unconstitutionally Applied to Wood) because I respectfully disagree
with the Court's decision concerning the application of the
aggravating factor contained in I.C. § 19-2515(g)(6).
In State v. Fain, 116 Idaho 82, 774 P.2d 252
(1989), the Court characterized this “utter disregard” factor as
referring “not to the outrageousness of the acts constituting the
murder, but to the defendant's lack of conscientious scruples against
killing another human being.” Id. at 99, 774 P.2d at 269. I cannot
agree that the unbelievably despicable conduct of the defendant in
this case in mutilating his victim's body seven days after the murder
may be considered as conduct coming within this characterization. I
am concerned that the Court's expansion of the scope given to this
aggravating factor will undermine the carefully crafted meaning of
this subsection upon which the Court has upheld its constitutionality.
This does not, however, affect the application of the aggravating
factor contained in I.C. § 19-2515(g)(7) as a basis for imposing the
death penalty. Therefore, I concur in the Court's decision affirming
the imposition of the death penalty.
19-2515 of the Idaho Code has been amended since the district court's
imposition of the death penalty in this case. The aggravating
circumstances are now under subsection (h). The (g)(7) aggravator,
now codified as (h)(7), now reads: “(7) The murder was committed in
the perpetration of, or attempt to perpetrate, arson, rape, robbery,
burglary, kidnapping or mayhem and the defendant killed, intended a
killing, or acted with reckless indifference to human life.” I.C.
§ 19-2515(h)(7) (1997).
§ 18-4004 provides: “Subject to the provisions of 19-2515, Idaho Code
[which require the court to make an inquiry into mitigating and
aggravating circumstances], every person guilty of murder of the first
degree shall be punished by death or by imprisonment for life․”
Lankford v. Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173
(1991), the U.S. Supreme Court held that the defendant's due process
rights were violated where, at the time of the sentencing hearing, the
defendant and his counsel did not have adequate notice that the judge
might sentence the defendant to death. In Lankford, the trial judge
had advised the defendant during his arraignment that the maximum
punishment he could receive if convicted was life imprisonment or
death. 500 U.S. at 112, 111 S.Ct. 1723. After the verdict was
rendered, and in preparation for sentencing, the trial judge ordered
the prosecution to give written notice concerning whether it would
seek the death penalty. 113 Idaho at 697, 747 P.2d at 719. The
prosecution specifically responded that it would not seek the death
penalty. Id. On appeal from denial of his petition for postconviction
relief, the defendant argued that the prosecutor's written notice
negated the statutory notice that he could be sentenced to death. Id.
This Court disagreed, holding that the existence of Idaho's death
penalty statute, plus the advice given at defendant's arraignment was
sufficient notice.In overruling this Court's holding by finding the
sentencing process unconstitutional, the U.S. Supreme Court noted:The
State's argument is that the terms of the [death penalty] statute,
plus the advice received at petitioner's arraignment, provided [adequate]
notice. This argument would plainly be correct if there had not been
a presentencing order, or if similar advice had been given after
petitioner received the State's negative response and before the
sentencing hearing commenced.500 U.S. at 119-20, 111 S.Ct. 1723 (emphasis
added). The U.S. Supreme Court reasoned that the presentencing order,
comparable to a pretrial order limiting the issues to be tried,
precluded the defense counsel from presenting argument or evidence
concerning imposition of the death penalty. Id. at 120, 111 S.Ct.
1723.Unlike Lankford, the prosecutor in the present case did not make
an express statement that the State would not seek the death penalty.
As previously mentioned, Wood was expressly advised that the death
penalty was a possible sentence and there was nothing said by either
the district judge or the prosecution to indicate otherwise.
TROUT, C.J., and SILAK, J., concur.McDEVITT, J.,
sat but did not participate because of his retirement.
James Edward Wood