State v. Charboneau

BISTLINE, Justice,

dissenting.

I

In this capital murder case, where the guilt of the accused would be determined by a jury, and where a guilty verdict might be of murder in the first degree, murder in the second degree, or voluntary manslaughter, defense counsel’s first strategic tactic was to utilize the results of a SEANCE conducted by a spiritualist; from the report of this seance counsel unquestionably believed that he had received the “true facts” concerning the homicide caused by gun shot wounds. Armed with the “true facts,” counsel then devoted his talents toward convincing the prosecutors that the real culprit was not defendant, but the deceased’s daughter. Having wholly succumbed to relying entirely on that hypothesis, counsel not only forewent making any of the ordinary preparations for a defense, but, even more damaging to the defendant, exposed him for uncounseled interrogation by prosecuting authorities.

Generally, a person’s willingness to learn life's past or future secrets from a spiritualist, fortune-teller, a seer or even a Ouija board, would be of no concern. However, if Charboneau’s then counsel was rendering “effective assistance of counsel,” as the majority today holds, then the sixth amendment’s guarantee of right to counsel has flown the coop. As Chief Justice Shepard has written, there is no insurance that defendants will receive a perfect trial— there is only the guarantee of a fair trial. A fair trial cannot be had if a defendant is precluded from being represented by counsel who is knowledgeable and competent. Such was not the circumstance here. Worse yet, the defendant appears to have had no outside counselling or advice of any kind which would have informed him that he was being inadvertently escorted down the primrose path. The defendant could have fared no worse had he been in charge of his own case. The record makes it readily apparent that defense counsel simply was not aware that his efforts were bizarre, and, equally unaware that counsel’s chosen course of conduct was extremely prejudicial to his client’s constitutional right to remain silent.

This Court has properly recognized that the Idaho Constitution, where appropriate, can provide more protection than its feder*163al counterpart.7 However, the Idaho Supreme Court cannot, through the magic wand of a judicial decree, disavow or disregard the sixth amendment protections guaranteed by the Constitution of the United States.8 Unless and until the federal courts in habeas corpus or post-conviction relief proceedings hereafter intercedes, the ineffective assistance of counsel doctrine in this jurisdiction has today been rendered meaningless.9

II

In addition, the majority has reacted to the well-reasoned decision of the en banc Ninth Circuit Court of Appeals in Adamson v. Ricketts, 865 F.2d 1011 (filed December 22, 1988), by rejecting it even before there has been any review by the Supreme Court of the United States. In that manner, Charboneau and other capital defendants similarly situated are deprived of the fundamental right to jury sentencing guaranteed by both art. 1, § 7 to the Idaho Constitution and the sixth amendment to the Constitution of the United States. These concerns will be addressed in turn.

A. INEFFECTIVE ASSISTANCE OF COUNSEL

Initially, the majority sets the stage for this aberration by failing to understand and utilize the proper standard of review. Under the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a criminal defendant must establish: (a) counsel’s deficient performance, and (b) prejudice. With this much the majority is in accord. However, under the prejudice prong, it does not have to be shown that without counsel’s error the defendant would have otherwise earned an acquittal. The heavy burden of such an outcome-determinative test was specifically rejected by the Supreme Court in Strickland. Although such a standard is appropriate for assessing a motion for a new trial based on newly discovered evidence, in regard to ineffective assistance of counsel claims, the defendant need only establish “... that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. ” 104 S.Ct. at 2068 (emphasis added).

Thus, the majority rejects Strickland’s mandate and affixes to Charboneau the burden of proving the result of the trial would have been different absent the replete errors of commission and omission attributable to defense counsel, specifically placing all reliance on the results of the seance and at the same time making not even a cursory attempt at preparation for an extremely crucial trial.10

Not only does the majority fail to comprehend the proper standard for evaluating ineffective assistance of counsel claims, it also shows little regard for the record. Without question, counsel Bennett relied upon the results provided from a seance in charting the course for his representation of Charboneau. The prosecutor who originally handled this case for Jerome County *164testified to his knowledge that Bennett contacted his niece in California, a clairvoyant, that through a seance the niece was able to “contact” the victim, Marilyn Arbaugh, that the spirit of Marilyn stated that her murderer was not Charboneau, but her daughter Tiffnie, and that the fatal shot was from a different gun not belonging to Charboneau. The prosecutor’s testimony:

Q. Will you, please, state your full name for the record.
A. Dannis M. Adamson.
Q. And where do you live?
A. I live seven north, three east of Jerome.
Q. Okay. And your occupation, please? A. I’m an attorney.
Q. How long have you been an attorney?
A. Since 1979.
Q. All right. I understand you were prosecuting attorney here in Jerome for a while; is that correct?
A. That’s correct. For the last part of ’82 and all of ’83 and ’84.
Q. Okay. Dan, are you familiar with the Jaime Charboneau case?
A. I certainly am.
Q. And how is it that you’re familiar with that case?
A. I was the prosecuting attorney for Jerome County representing the State of Idaho in State of Idaho versus Jaime Charboneau; three, three different counts: Grand theft, rape, and first-degree murder.
Q. Okay. And I understand that the Attorney General’s office was appointed to prosecute that action sometime during the proceedings; is that right?
A. Okay. It became obvious that the trial was not going to take place before I left office because I did not rerun for the prosecutor’s position; and when that decision was made, that’s when the Attorney General’s office came in, yes.
Q. All right. Dan, did you ever have any private conversations with Golden Bennett concerning this case?
A. Yes.
Q. Okay. And when did you have these particular conversations?
A. Well, we had various conversations ranging from, from when he was first appointed; but I talked with him regularly before the preliminary hearing, before Mr. Charboneau was bound over to District Court, conversations on a regular basis.
Q. Dan, you said there was one particular theory that he elicited to you in a conversation. Where did it take place? A. Well, again bits and pieces, even in the hallway, but primarily I think in my office and, the prosecutor’s office.
Q. Who was present during that particular conversation?
A. Well, I’m almost certain [defense investigator] Mr. Coakley was and Golden Bennett and myself.
Q. Okay. Could you relate to the court what the substance of that conversation was?
A. Well, basically, it was: You’ve got to bring in the .22 revolver pistol. You have to change the focus of your investigation and take the heat off of my client and place it on Tiffy, Tiffnie Arbaugh, because she’s the one that shot the, made the final shot into her mother.
And my question was, well, how do you know all this? And frankly, I expected him to say that his client told him so, and in fact in some of the earlier suggestions as to how this crime had happened, he had gotten those from Mr. Charboneau. But this particular instance dealt with the fact that he had contacted his niece or cousin or something like that in California, that she conducted a seance and that she had communicated with Marilyn Arbaugh, the victim in the case, and that Marilyn had indicated how much she loved Jaime Charboneau, and that even though she was upset that her daughter had shot the final shot, she also forgave her because she knew how much she had hurt her, et cetera, et cetera, et cetera. And it was kind of a long drawn-out statement as to what this dead person had said through the seance, trying to convey her love to *165Jaime Charboneau, and forgiving of her daughter for shooting her.

Tr., Vol. 23, Post-conviction Relief Hearing, 57-62.

Mr. Bennett’s secretary also testified. She stated that much of the pre-trial defense viras concentrated on summoning assistance from the world of the supernatural. Her testimony on post-conviction proceedings was corroborative of the prosecutors.

Q. Okay. Are you familiar with a Jaime Charboneau case?
A. Yes.
Q. How is it that you’re familiar with that?
A. Well, I worked for Golden for about four months in ’84 and the first part of ’85 when he was defending Jaime. Q. Okay. Golden was representing Jaime during this entire time; is that correct?
A. Yes.
Q. Did you ever witness any conversations between Golden Bennett and his investigator James Coakley?
A. Yes.
Q. Okay. And where were these conversations? Where did they take place? A. In Golden’s office.
Q. All right. And who was present at the time?
A. Golden, Jim Coakley, Golden’s daughter-in-law Jean, myself, Peggy, I can’t tell you who was there every, you know, for every conversation, but people that work in the office.
Q. Okay. When did these conversations take place?
A. Well, they’d — the whole time that I was working there on several occasions. Q. Were they frequent, all the time? Were they now and then? What were they?
A. They were frequent. That was the case that, Golden’s big case he was working on when I was there. They talked about it a lot.
Q. Okay. And would you relate to the Court the substance of these conversations?
A. Well, they were planning their strategy, what, how they were going to try to help Jaime with the information that Jim Coakley was furnishing Golden.
Q. And what was that?
A. Well, he was trying to contact the deceased’s spirit on several occasions. He said that it was an unfriendly spirit. And then one day we came to work and he said that he’d contacted her the night before and as far as I know that’s what Golden was basing his information on. Q. Okay. Did they talk about clairvoyants during this period of time?
A. Yes.
Q. Often?
A. Yes.
Q. Okay.' And did you hear Golden Bennett talk about clairvoyants?
A. Yes. Not as much as Jim did, but, yes.

Tr., Vol. 23, Post-conviction Relief Hearing, 163-65.

Defense counsel was preoccupied with using the results of a seance in preference to utilizing the traditional measures relied upon by defense lawyers: fact investigation coupled with legal research. Moreover, rather than independent investigation of the circumstances of the case, defense counsel approached the Attorney General’s office in an attempt to persuade the State to investigate. As defense counsel explained in his deposition:

My purpose in going to Boise was to convince the attorney general’s office that an independent investigation was needed, and that it wouldn’t be done properly in Jerome County, and I had complete faith in the attorney general’s office, I still do, and it just seemed like the appropriate way to go at the time.

Deposition of Golden Bennett at 27 (emphasis added). Thus, instead of accepting the responsibility of embarking on his own factual investigation, defense counsel relied upon the prosecutorial arm of the State to do it for him. The lack of investigation and preparation for trial is also shown by the testimony of Randy Stoker, the attorney who ultimately, and on short notice, represented Charboneau at trial:

*166I picked up that case in a posture where there had been virtually no investigation done, there were no readable, credible witness statements in the file. There were no jury instructions prepared. Jaimi had never been examined by a psychiatrist or psychologist. There was no ballistics experts hired. There were no pathological testimony from a defense standpoint. There was nothing in terms of what I would consider assistance to me at that point in the file that I was handed from his previous counsel.

Yol. II, Post-conviction Relief Hearing at 27 (emphasis added).

The American Bar Association’s “Defense Function” upon which the majority heavily relies, provides that:

It is the duty of the lawyer to conduct prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or the accused’s stated desire to plead guilty.

Standard 4-4.1 (1982) (emphasis added). While the standard makes clear that the defense attorney should try to secure information and evidence through discovery, an independent investigation is also required. Otherwise, if it be true that the prosecution can properly be relied upon to do all of the investigative tasks for an accused, the adversarial nature of our criminal system of justice breaks down. As observed in Strickland, “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” 466 U.S. at 686,104 S.Ct. at 2064 (emphasis added).

In Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), the Supreme Court was asked whether a defense counsel’s failure to file a timely suppression motion, due to a lack of investigation, constitutes ineffective assistance of counsel. The Court held that it did:

The justifications Morrison’s attorney offered for his omission betray a startling ignorance of the law — or a weak attempt to shift blame for inadequate preparation. [Cjounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.' [citations] Respondent’s lawyer neither investigated, nor made a reasonable decision to investigate, the State’s case through discovery. Such a complete lack of pretrial preparation puts at risk both the defendant’s right to an ‘ “ample opportunity to meet the case of the prosecution,” ’ [citations] and the reliability of the adversarial testing process.

106 S.Ct. at 2588-89 (citations omitted) (emphasis added).

Defense counsel not only failed to investigate, but he also subjected his client to examination by the State for no legally recognizable purpose. Moreover, at defense counsel’s invitation the State was allowed to interrogate Charboneau for two hours, without defense counsel being present. The scope of the questioning was not limited and Charboneau was left to fend for himself. The majority readily and properly concedes that “Charboneau divulged a great many more particulars concerning the alleged kidnapping, theft and murder.” At 135, 774 P.2d at 305.

Defense counsel also called Charboneau to the stand to testify at the preliminary hearing, thereby waiving the constitutional right to remain silent. The majority says of this strange affair, “[w]hile it may not have been the game plan that other attorneys would have followed, we may not second guess counsel’s strategic and tactical choices.” At 138, 774 P.2d at 308. The majority is only half right in stating that premise. True, unsuccessful but reasonable tactical decisions should not be the basis for finding ineffective assistance of counsel, but only so long as the strategic *167choices have some plausible basis in the record. As this Court’s opinion in Aragon v. State (Aragon II), 114 Idaho 758, 761, 760 P.2d 1174, 1177 (1988) stated: “When counsel’s trial strategy decisions are made upon the basis of inadequate preparation, ignorance of the applicable law, or other shortcomings capable of objective evaluation, the defendant may very well have been denied effective assistance of counsel” (quoting State v. Tucker, 97 Idaho 4, 10, 539 P.2d 556, 562 (1975) (emphasis added in Aragon II)).

This case stands in stark contrast to Aragon II, where the ineffective assistance contention lay in failing to call witnesses to bolster the accused’s character. The decision not to call character witnesses was reasonable, so it was held, because counsel, associate counsel and an investigator had interviewed Aragon’s family and people that knew him; thereafter, counsel made the informed decision that the defense would not be helped by calling such persons. 114 P.2d at 763, 760 P.2d at 1179. Unlike Aragon II, however, defense counsel in the instant case engaged in no independent factual investigation upon which to base principled strategic decisions.

The majority concludes that defense counsel’s performance was effective because nothing contained in the American Bar Association’s standards prohibits counsel from placing the accused on the stand as a witness at the preliminary hearing. However, as the High Court made clear in Strickland:

Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) (‘The Defense Function’), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.

104 S.Ct. at 2065 (emphasis added). Indeed, a case may arise where it is in the defendant’s interest to testify at the preliminary hearing. However, in the case at bar no reason for calling Charboneau to testify has surfaced, other than as it might somehow induce the Attorney General to investigate the case with the thought in mind that the murderer was not Charboneau.

Subjecting the unrepresented defendant to the State’s questioning on two occasions was not enough. Defense counsel also put Charboneau on the stand when the Motion to Dismiss was heard. Defense counsel, however, was certain that the Motion to Dismiss would not be granted. His purpose was only to embarrass the prosecution into conducting a more thorough investigation along the aforesaid avenues. However, anything Charboneau might say in such circumstance later could then be used to impeach him at trial if he were to testify. One expert witness, practicing attorney and formerly a judge, Lloyd Webb, stated that defense counsel’s decision to place Charboneau on the stand in order to embarrass the prosecution was: “Nonsense. You don’t embarrass prosecutors into making proper investigations that way. This is not a judgment call. This is just plain incompetency. I can’t understand Mr. Bennett and why he did that.” Vol. I, Post-conviction Hearing at 56 (emphasis added).

Thus, Charboneau was denied effective assistance by the defense counsel’s: (a) placing unbridled reliance on the report given to him as to the results of the seance in formulating the “defense” which he conducted; (b) failure to investigate the facts of the case, proceed with discovery, and generally make the necessary preparations for trial — as against merely relying on the prosecution to investigate the case along the lines defense counsel outlined, thereby undermining the adversarial nature of the criminal justice system; and (c) allowing the state the unfettered opportunity to interrogate Charboneau without counsel being present; and (d) calling Charboneau as a witness at the preliminary hearing and hearing on the motion to dismiss absent any plausible basis for so doing.

*168B. FAILURE TO STRIKE EVIDENCE OF GRAND THEFT AND KIDNAPPING CHARGES

The majority holds that evidence of the felony charges of kidnapping and grand theft was properly not stricken, even though both charges were dismissed at the close of the prosecution’s case for lack of jurisdiction. It is said that such evidence shows Charboneau’s motive or intent under I.R.E. 404(b). The majority opinion supplies the trial court’s reasoning for not granting the motion: “The court denied the motion on the ground that the evidence would have been admissible in the murder case in any event.” Majority Op., p. 135, 774 P.2d p. 305. On page 143, 774 P.2d page 313 of the Majority Opinion is added to the foregoing this sentence: “This thing occurred over a period of some ten or twelve days and I think the jury needs the benefit of all that testimony in order to properly arrive at a decision, whichever way they decide.”

The majority then disposes of this extremely crucial evidence by recounting the facts of an earlier (1979) case which — wholly unlike this case — was in large part based on circumstantial evidence. A burned torso, minus head and legs, was discovered, and authorities made a tentative identification that the corpse was the remains of one Ron Needs. This led to the arrest of Sally Needs, and thereafter a trial on a charge of murder. The prosecution proved the identity of the corpse to the satisfaction of the jury by circumstantial evidence.

Sally Needs was convicted based on the testimony of a witness who in mid-June saw Sally Needs arm herself with two butcher knives, and brandish them at Ron Needs, who disarmed her. The witness testified that Mrs. Needs threatened that she was going to get him — also then throwing gasoline on him. On appeal Sally Needs contended that the trial court erred in allowing in the testimony of the assault, which was established as having been two weeks prior to Ron Need’s death. This Court held that it was not error to allow the testimony, the rationale being that “[s]uch evidence is clearly relevant to her motive and intent as well as to shed considerable light on her mental attitude towards Ron Needs.” 99 Idaho 883, 893, 591 P.2d 130, 140 (1979). Although that language is somewhat overbroad, it met with my approval then, and continues to. That was an unusual set of circumstances.

Here we have a homicide which took place with witnesses in the area. What I remember best in the Needs case is the statement that “Idaho courts do follow the general rule that evidence of other unrelated criminal activity is inadmissible at trial to show criminal propensity on the part of the accused. ” 99 Idaho 883, 892, 591 P.2d 130, 139 (1979) (emphasis added).

Here, the two charges of kidnapping and a grand theft, neither related to the homicide, were both alleged to have taken place when Charboneau on June 21, 1984, entered his former wife’s car and drove off with her and the car allegedly keeping her captive until she escaped. The car was alleged to be valued at over $150.00.

Those two unrelated charges were not filed in connection with the July 1 homicide charge which was later filed on July 2, 1984. It was defense counsel who conceived that strategic “tactic” of promoting a single trial of all three charges. As pointed out in Mr. Fuller’s opening brief in this Court, the district court attempted to dissuade defense counsel from such foolishness:

[T]he Court acknowledged that it was improper to consolidate the three criminal trials and that Jaimi was going to be prejudiced. He stated:
And I might further add, if Mr. Charboneau will recall, I did my level best and even fought with counsel to separate these trials. I didn’t want them all held together; I wanted to separate the one from the other. And Mr. Charboneau and counsel wanted it held together. So that’s one of the problems we run into by holding it together. Objection overruled.
Trial Tr., Vol. II, p. 375, L. 4-11 (emphasis added).
Upon the State resting its case, Mr. Stoker moved to dismiss the kidnapping *169and grand theft charges on jurisdictional grounds that had been discussed early in the trial with the trial court judge. Both charges were dismissed because jurisdiction was wholly lacking. Then Mr. Stoker attempted to strike the evidence concerning the issues involved in the grand theft and kidnapping counts that he had tried to exclude earlier. In response to Mr. Stoker’s Motion to Strike, the Court stated:
There is no evidence whatsoever that all or any part of the crime occurred in Jerome County, and that would — jury would have to speculate as to that, it would be pure speculation. That’s why I’m taking it away from them ... I am concerned about the defense’ motion to instruct the jury. (Motion to Strike) I think that I would have to so instruct them, because — and here is another part — this is the thing that bothered me about this case a long time ago, is when the defense was always wanting to join all of these cases for trial. I turned down that Motion I don’t know on how many occasions. Finally, at the last session when you were together where the state joined and the defense joined, I allowed it to go through. It bothers me that the jury does have in their minds all of the other evidence ... and I don’t know if I can cure that with an instruction.
Trial Tr., Vol 6, p. 1361, LL. 20-25, p. 1352, LL. 1-15.
When one considers all of the facts, the bottom line is that the defendant was prejudiced and could have received a verdict other than first degree murder. In fact, there was an extremely good possibility that the defendant could have been convicted of voluntary manslaughter.

Appellant’s Brief at 247-50 (emphasis added).

C. JURY DETERMINATION OF LIFE OR DEATH

The majority continues to repudiate the mandate of art. 1, § 7 of the Idaho Constitution, thereby robbing the capital defendant of the right to a jury trial. The life or death decision had always been within the exclusive province of the jury in Idaho, until the legislature in 1977 passed the current version of I.C. § 18-4004, drafted and sponsored by the Attorney General. The steady stream of dissents from Justice Huntley and later myself beginning with State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), have failed to persuade a majority of this Court, or the legislature, that the Idaho Constitution requires jury participation in capital sentencing.

Today the majority takes on bigger game and now rejects the sound reasoning of the en banc Ninth Circuit Court of Appeals in Adamson v. Ricketts, 865 F.2d 1011 (1988), holding that the Arizona capital sentencing scheme — remarkably similar to Idaho’s — violates the sixth amendment right to a jury determination of each element of the offense charged.

In Adamson the Ninth Circuit stated: Under Arizona’s revised code, all murder is not capital murder. Since 1973, Arizona has required that before a death sentence may be imposed the trial judge must find beyond a reasonable doubt that at least one statutory aggravating circumstance exists. While Arizona has formally subdivided murder into at least four categories — first degree murder, second degree murder, manslaughter and negligent homicide — it appears that aggravating circumstances in fact operate to create an additional category of murder. While the statute’s nomenclature (‘aggravating circumstances’) suggests they are mere factors guiding the judge in his or her determination of the appropriate penalty, all other indicators confirm that aggravating circumstances are additional elements necessary for a finding that a defendant is guilty of the distinctive offense of capital murder. Finding aggravating circumstances results in the only crime in Arizona for which a defendant may receive a death sentence.

865 F.2d at 1011 (1988) (emphasis and parentheses in original; footnotes omitted). *170Like Arizona’s aggravating circumstances, Idaho’s capital sentencing statute, I.C. § 19-2515, constitutes elements of the crime of capital murder. Simply put, an Idaho citizen cannot be put to death unless the evidence establishes an aggravating circumstance, the sine qua non of capital murder. Accordingly, when the presence of such an element is determined by a trial judge — and not a jury — the right to a jury trial guaranteed by the Idaho and federal constitutions is violated.

A majority of the Court, however, shuns Adamson on the basis of the Supreme Court’s decision in Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), which held that judge-sentencing in capital cases does not violate the eighth amendment prohibition against cruel and unusual punishment. However, in Adam-son the Ninth Circuit convincingly demonstrates that the

[Supreme] Court’s examination in Spaziano was limited to the constitutionality of judicial ‘sentencing’ and evaluation of ‘the appropriate punishment to be imposed.’ 468 U.S. at 458-59, 104 S.Ct. at 3161-62. The Court never addressed a claim of judicial fact-finding as to an element of the offense. Thus the Court never reached the particular contention Adamson raised: that Arizona’s capital sentencing statute requires the judge to determine elements of the offense charged, thereby taking this factual element out of the jury’s hands in violation of the Sixth Amendment. Sentencing, or the ultimate determination of an appropriate penalty, involves the weighing of factors. Such weighing is completely distinct from threshold findings of whether requisite elements even exist from which the trier-of-fact draws conclusions of guilt or innocence.
Thus, Spaziano is not controlling in this case, as it left untouched the question of the right to a jury trial where the aggravating circumstances of a state’s death penalty statute are elements of a capital offense.

865 F.2d 1011 (footnote omitted) (emphasis added). The ultimate outcome is, of course, up to the Supreme Court of the United States, but whatever it may be, that Court surely will address the issue as one of first impression, and not “inherently” mandated by Spaziano as the majority of this Court today erroneously concludes.

D. THE HEARSAY LETTER FROM THE VICTIM’S FATHER

The majority holds that the letter written by the victim’s father and admitted at the penalty phase of the trial was inadmissible hearsay. With that much I agree. However, a majority of this Court adheres to the view that hearsay contained in a presentence investigation report can properly be considered by a trial judge when weighing aggravating against mitigating circumstances.

Idaho Code § 19-2516 provides:

Inquiry into circumstances — Examination of witnesses. — The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section.

(Emphasis added.) I remain convinced that the mandate of the legislature expressed in I.C. § 19-2516 and that of the founding fathers expressed in the due process clauses of the state and federal constitutions prohibits the admission of presentence investigation reports obtained by hearsay and containing hearsay. As stated on an earlier occasion:

[T]he Court simply cannot in any show of conscience continue to let capital sentencing be hinged on unsworn statements and other forms of hearsay. It is now clear that a capital case involves two trials. The first is to try the issue of the accused’s guilt. If convicted, the second is to try the issue of the circumstances of *171his crime and the facets of his character. Common sense dictates that the second trial for his life is the defendant's more important trial. Can it be then that in Idaho we have a rule that while due process obtains at the guilt trial, anything goes at the second trial which determines the issue of life and death? Until recently, I had thought that removing the element of due process from the second trial was such a monstrous proposition as to be undeserving of discussion or comment.

State v. Sivak, 105 Idaho 900, 920-21, 674 P.2d 396, 416-17 (1983) (Bistline, J., dissenting).

It seems exceptionally clear to me that unless the system has broken down to the point where it is permissible to allow a jury — as the sentencing authority — to have placed before it anything and everything which a presentence investigator comes across or can stir up, then, and only then, should a district judge as sentencing authority likewise be so influenced.

E. VAGUENESS OF AGGRAVATING CIRCUMSTANCES

The cruel and unusual punishment prohibitions of the state and federal constitutions require that the sentencer’s discretion in imposing the death penalty limited to “minimiz[e] the risk of wholly arbitrary and capricious action.” Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). The Supreme Court has held that the statutory aggravating circumstances, such as those in I.C. § 19-2515, must be given a limiting construction 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.” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398, 406 (1980).

Idaho Code § 19-2515(g) provides:

The following are statutory aggravating circumstances, at least one (1) of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed.
(5) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
(6) By the murder or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.

(Emphasis added.) In regard to the (g)(5) aggravating circumstance, the majority concludes that the following limiting construction passes constitutional muster:

It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

At 152, 774 P.2d at 322 (quoting State v. Osborn, 102 Idaho 405, 418, 631 P.2d 187, 200 (1981) (emphasis in original).11

The limiting construction given to the (g)(5) aggravating circumstance by Osborn and reaffirmed today by the majority, is wholly insufficient to guide the sentencer’s discretion in limiting the application of the death penalty consistent with constitutional mandates. Terms beget terms. What is the “norm” of capital felonies? Who sets this “norm”? Indeed, all first degree murders involve the unlawful killing of another with malice aforethought. What sets this particular murder apart — not from other crimes — but from the “norm” of first degree murder? In a domestic dispute husband kills wife with a gun. Do all such *172murders now warrant execution? If so, it can hardly be said discretion is limited.12

Also, the Osborn “limiting” definition of the (g)(5) circumstance provides that the murder must be “unnecessarily torturous to the victim.” Clearly, however, this definition is simply duplicative of the (g)(7) circumstance which subjects defendants to death for murder by torture.13 In the final analysis, all first degree murders are “especially heinous, atrocious or cruel, manifesting exceptional depravity.” Nothing in the majority's interpretation restricts the broad brush with which the subsection is drawn.

The (g)(6) aggravating circumstance, which requires that the defendant exhibit “utter disregard for human life,” suffers from similar infirmities. Today the majority reaffirms the “limiting” construction enunciated in Osborn:

We conclude instead that the phrase is meant to be reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the coldblooded, pitiless slayer.

At 152, 774 P.2d at 322 (emphasis added) (quoting Osborn, 102 Idaho at 419, 631 P.2d at 201). What first degree murderer fails to show “callous disregard for human life”? I suppose this would be the “pitiful” slayer, who, prior to delivering the fatal blow, tells the victim: “Excuse me, pardon me, I know it’s inconvenient, but I must now take your life.”

Furthermore, the (g)(5) and (6) aggravating circumstances are duplicative. Every murderer who exhibits “utter disregard for human life” commits a crime which is “especially heinous, atrocious or cruel manifesting exceptional depravity.” Today, however, the majority in State v. Fain, 116 Idaho 82, 774 P.2d 252 (1989), concludes that the aggravating factors describe two “quite different kinds of culpability.” The majority states:

The particularly cold-blooded killer need not act sadistically or in a particularly outrageous fashion in order to commit a killing with utter disregard for human life. One who commits a crime in an especially heinous way is punished for the heinousness of his crime, not because he acted with utter disregard for human life, although it may be expected that most especially heinous, atrocious or cruel murders will have been committed with utter disregard for human life.

Fain, 116 Idaho at 99, 774 P.2d at 269 (emphasis added).

. Thus, according to the majority, a “coldblooded killer need not” act in an “outrageous fashion” to commit a murder “with utter disregard for human life.” I cannot fathom a first degree murder which is not carried out in an “outrageous fashion.” Every premeditated murder is outrageous.

The (g)(5) and (6) subsections are nothing more than kitchen sink aggravating circumstances which enable the state to make every first degree murderer not just a candidate for, but an actual recipient of, the harshest and most final of all criminal penalties. As a result, the mandate to narrow the class of death-eligible murders is abandoned.

. See State v. Henderson, 114 Idaho 293, 756 P.2d 1057 (1988) (Idaho Constitution prohibits use of roadblocks designed to apprehend drunk drivers absent warrant or probable cause); State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988) (Idaho Constitution prohibits use of pen registers on citizens’ telephones absent warrant or probable cause).

. Article 1, § 3 of the Idaho Constitution provides: "The state of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land.”

. I concur in Parts III, IV, V, IX(B)(1) (with explanation), IX(B)(2), IX(C)(2), IX(C)(3), IX(C)(6), IX(C)(7) and dissent to Parts I, II, VI, IX(A), IX(C)(1), IX(C)(4) and IX(C)(5). I express no opinion as to Parts VII, VIII, X and XI, because a proper resolution of this case would render those issues entirely moot.

.The majority opinion states: "It is Charboneau’s burden to prove that the result would have been different, if he had not testified at the hearing on the motion to dismiss.” At 138, 774 P.2d at 308 (emphasis added). Such a burden is unrealistic. Absent a retrial, that theorem is unsusceptible of proof. The fact is that defense counsel did make the decision to have Charboneau testify.

. The Osborn majority adopted this limiting construction to a very similar aggravating circumstance of the Florida Supreme Court in State v. Dixon, 283 So.2d 1 (Fla.1973), cert. den., 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

. The Adamson court, reviewing Arizona cases applying similar "heinous and/or depraved" language convincingly demonstrated that the words themselves are empty vessels capable of being filled by a court as it chooses with any facts at hand. Adamson, 865 F.2d at 1031.

. Idaho Code § 19-2515(g)(7) provides: “The 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.” Idaho Code § 18-4003(a) is the murder by torture statute.