State v. Fetterly

BAKES, Justice.

Appellant Donald Fetterly appeals from a conviction for first degree murder and the imposition of the death penalty.

On September 7, 1983, Sterling Grammer was stabbed to death in Caldwell. Five days later, Donald Fetterly and Karla Windsor were charged with first degree murder, robbery, and use of a deadly weapon.

The record reflects that Fetterly had become acquainted with the victim through Fetterly’s ex-mother-in-law, Violet Hogan. On the evening of September 6, 1983, Fetterly and Windsor entered Grammer’s home intending to steal Grammer’s personal belongings. They remained in Grammer’s home until Grammer returned the following morning. Although it is somewhat unclear what events transpired following Grammer’s return, Grammer’s hands were eventually taped behind his back. Grammer’s feet were also taped together, and duct tape was wrapped about his face. Grammer was then stabbed repeatedly. Grammer’s lifeless body was dumped into the Snake River, where it was found on September 9, 1983. Fetterly and Windsor took Grammer’s car, pickup truck, and other personal items. Some of these items were later sold by Fetterly and Windsor.

On September 10, 1983, Fetterly and Windsor were apprehended while driving Grammer’s truck.

Since Fetterly and Windsor had also previously been seen driving Grammer’s car, Windsor was asked to reveal the location of Grammer’s car. Windsor was questioned as to the location of Grammer’s car prior to being read her Miranda rights. After being questioned as to the location of the car, Windsor asked to see Fetterly. The two defendants then talked to each other and agreed to make a joint statement. A Miranda warning was read to each of the defendants prior to their making this statement. In the statement Fetterly admitted killing Grammer, but claimed that he could not remember actually stabbing Grammer.

The defendants’ trial was set for December 12, 1983. Prior to trial the case received extensive newspaper coverage which contained details of the crime and the relationship between Fetterly and Windsor. The extensive coverage also contained information as to Fetterly’s and Windsor’s previous arrest for fraudulent use of a credit card, an outstanding warrant against Fetterly for writing a check with insufficient funds, the probable motive for Grammer’s murder, and the opinion of the Canyon County prosecuting attorney as to the credibility and validity of the evidence. Fetterly filed a motion for change of venue or, in the alternative, a motion for selection of a jury from a county other than Canyon. Each motion focused on the extensive pretrial publicity given the case, alleging that the publicity would deny Fetterly a fair trial. Both motions were denied by the trial court.

Several other pretrial motions were filed, including a motion to sever the trial of the two defendants, a motion to suppress Fetterly’s statements, and a motion to suppress Fetterly’s prior criminal record. Additionally, a motion was made to sever Windsor’s defense from Fetterly’s due to a conflict of interest. The court granted the motions to sever the trial, to suppress Fetterly’s criminal record, and to allow withdrawal of counsel from Windsor’s defense. The motion to suppress Fetterly’s statement was denied.

On December 7, 1983, five days before trial, Fetterly made motions to compel discovery and for a continuance. At this time, Fetterly alleged that forensic lab reports had not yet been made available to the defense. Arguments on this motion were set for December 9, 1983. By December 9, 1983, Fetterly had received the requested reports. The motion to continue was denied. Jury selection then began on December 12, 1983.

*769On December 15, 1983, the jury returned a verdict finding Fetterly guilty of burglary, grand theft, and first degree murder. In finding Fetterly guilty of first degree murder, the jury found both first degree murder with premeditation and first degree murder under I.C. § 18-4003, the felony murder statute.

On January 11, 1984, a psychological examination of Fetterly was ordered. Notice of intent to seek the death penalty was filed January 31, 1984. An aggravation and mitigation hearing was held on February 23, 1984. On February 24, 1984, Fetterly was sentenced to death for first degree murder and given an indeterminate five-year sentence for burglary and an indeterminate fourteen-year sentence for grand theft, to be served consecutively. A death warrant and findings were filed pursuant to I.C. § 19-2515. Fetterly appeals the judgment of conviction and the death sentence.

I

Fetterly contends that the trial court abused its discretion in denying his motion for a change of venue. Fetterly maintains that the extensive publicity prior to trial deprived him of the opportunity to be tried before an impartial jury. We disagree.

The decision as to whether or not to grant a motion for a change of venue lies within the discretion of the trial court. State v. Thomas, 94 Idaho 430, 432, 489 P.2d 1310, 1312 (1971); State v. Bitz, 93 Idaho 239, 242, 460 P.2d 374, 377 (1969). “[W]here it appears that the defendant actually received a fair trial and that there was no difficulty experienced in selecting a jury, refusal to grant a change of venue is not a ground for reversal.” State v. Thomas, 94 Idaho at 432, 489 P.2d at 1312.

In determining whether a criminal defendant received a fair trial, this Court will consider

“affidavits indicating prejudice or an absence of prejudice in the community where the defendant was tried, testimony of the jurors at voir dire as to whether they had formed an opinion of the defendant’s guilt or innocence based upon adverse pretrial publicity, whether the defendant challenged for cause any of the jurors finally selected, the nature and content of the pretrial publicity, and the amount of time elapsed from the time of the pretrial publicity to the trial itself.” State v. Bainbridge, 108 Idaho 273, 698 P.2d 335 (1985) (quoting from State v. Needs, 99 Idaho 883, 890, 591 P.2d 130, 137 (1979)) (footnotes omitted).

No affidavits indicating prejudice or an absence of prejudice in the community were submitted. During voir dire each juror was extensively questioned to determine the degree of their exposure to the pretrial publicity. Those jurors who had been exposed to the publicity were further questioned to determine if they had formed an opinion as to the guilt or innocence of the defendant.

The record reflects that Fetterly did not challenge for cause any of the jurors finally selected, nor did Fetterly use all of his peremptory challenges. Waiver of peremptory challenges has been found to indicate satisfaction with the panel chosen. See State v. Brooks, 103 Idaho 892, 899, 655 P.2d 99, 105 (Ct.App.1982). The district court did not err in denying Fetterly’s motion for a change of venue.1

*770II

Fetterly contends that the trial court abused its discretion by denying his motion for a continuance. This argument is an extension of his change of venue argument. Fetterly argues that the trial judge should have granted a continuance to allow the harmful press coverage to dissipate. However, as stated above, there is every indication that an impartial jury was empaneled and that Fetterly received a fair trial. Accordingly, the trial judge did not abuse his discretion by refusing to reschedule the trial.

Fetterly' also argues that a continuance should have been granted because his defense was prejudiced by the delayed discovery of laboratory reports and the trial court’s failure to rule upon the admissibility of his confession until shortly before the trial. His argument essentially is that since he did not know until shortly before trial that his confession was going to be admitted, “the physical evidence and laboratory results would have been absolutely critical to tying the defendant to the apartment of the deceased____”

However, the defendant has not set out any particular claim of physical evidence or laboratory results which were denied him. There were no state or .federal lab reports introduced as exhibits at trial, and the only forensic laboratory technician who testified was a state employee, Pamela Server, who testified that the duct tape removed from the victim had been taken from rolls of duct tape found in the victim’s bedroom, and various items belonging to the victim had Type 0 blood on them. It was never established at trial whether or not the victim Grammer had Type 0 blood, and that fact was of no significance at the trial. Further, in the defendant’s confession, which the trial court found to be admissible, he admitted that he used the victim’s own duct tape which he found on the premises to bind the victim’s hands and feet prior to stabbing him to death with a knife. There has been no showing how the failure to produce essentially unidentified scientific laboratory reports until shortly before trial impaired the defendant’s ability to prepare his defense. Accordingly, we find no error resulted from the trial court’s refusal to grant a continuance because of the alleged delayed discovery.

Ill

Although Fetterly acknowledges that he was read his Miranda rights prior to making the joint statement, Fetterly alleges that Windsor was questioned prior to being read her Miranda rights. He argues that Windsor was thus coerced into agreeing to make a joint statement. Fetterly concludes that this stream of events brought psychological pressure to bear on him, inducing him to agree to make the joint statement after talking with Windsor.

The defendant’s argument lacks merit for at least two reasons. First, there is nothing in the record to support appellant’s argument that the alleged violation of Windsor’s Miranda rights induced him to agree to make a joint statement, which somehow violated his constitutional rights. The record does reflect that prior to co-defendant Windsor being advised of her Miranda rights, she was asked about the location of the victim’s car, and she gave the police officers the phone number of the person at whose home the car was located. No further questioning of Windsor was made until after she had been advised of her Miranda rights. After the initial questioning as to the location of the car, Windsor asked to speak to Fetterly. The statement which she and appellant Fetterly later made was not connected to the questioning about the location of the car. After Windsor had conferred with Fetterly, both agreed to give a joint statement. Both were then given the Miranda warnings prior to their making the statement, which was the appellant Fetterly’s only statement to the police at that time. We have care*771fully reviewed the entire record and find no evidence to support the appellant’s allegation that the initial inquiry to his co-defendant Windsor prior to her being advised of her Miranda rights had any effect upon his subsequent post-M'rcraeia statement. We agree with the trial judge that

“[t]he record is void of any psychological pressure brought to bear upon the defendants. There was only the one officer present, they were given a period of time [to speak with each other], they were allowed to confer with each other, they were allowed to stop the statement or the statements they were giving at any time they were upset by the nature of the statement that was going on. There is just no indication at all at this point that they were pressured or coerced in any way.”

Furthermore, in the recent decision of the United States Supreme Court in the case of Oregon v. Elstad, — U.S. -, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Supreme Court concluded that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” — U.S. at-, 105 S.Ct. at 1298. In this case the appellant Fetterly is not complaining of his own “unwarned yet uncoercive questioning,” but that of a co-defendant made outside of his presence. The result in Oregon v. Elstad, supra, would appear to be even more compelling under these circumstances. After examining the totality of the circumstances surrounding the making of the statement, we find that the statement was voluntarily made.

IV

Fetterly also objects to the editing of his statement. The trial judge edited the joint statement, deleting Windsor’s statements, to ensure that only Fetterly’s answers would be read into evidence. Fetterly contends that the statement read into evidence was incomplete and misleading. He argues that the only way to preserve his due process rights would be to hold the joint statement completely inadmissible. We disagree.

Although the question has not previously been addressed in Idaho, other jurisdictions allow editing of a defendant’s statement when the editing will not mislead the jury. See Hager v. State, 665 P.2d 319, 324 (Okl.Crim.1983); State v. Bird, 59 Or.App. 74, 650 P.2d 949, 951 (1982); State v. Purdy, 228 Kan. 264, 615 P.2d 131 (1980). Here, Fetterly has not shown that the edited statement is misleading.

In Idaho, barring exceptional circumstances, confessions or incriminating statements made by a suspect after being informed of his rights are admissible. State v. Larsen, 91 Idaho 42, 46, 415 P.2d 685, 689 (1966). Here, we find no exceptional circumstances. Fetterly voluntarily agreed to make the joint statement and was informed of his Miranda rights prior to making the statement. Further, the statement, which was edited only to make certain that Windsor’s statement was not used against Fetterly, thus ensuring that Fetterly was accorded full due process, was not objected to at trial. Thus, having fully reviewed the record, we find no error in the trial court’s editing of Fetterly’s statement.

V

Fetterly maintains that the jury was erroneously instructed on the felony murder rule. He argues that if a burglary was committed, the burglary was complete before the victim arrived at his home.

As the state points out in its brief, “The narrow construction Fetterly urges upon the Court would deprive [the felony murder rule] of any validity unless the victim was killed while the burglar had one leg over the windowsill or one foot across the threshold.” We agree with the state’s position. Grammer’s death was part of a stream of events which began the evening Fetterly and Windsor entered Grammer’s home and ended the following day when *772Grammer’s possessions were removed from the home.

VI

Nor do we agree with Fetterly that the admission into evidence of photographs of the deceased constituted prejudicial error. The general rule is that photographs of the victim in a prosecution for homicide are, at the discretion of the trial court, admissible into evidence. State v. Martinez, 92 Idaho 183, 188, 439 P.2d 691, 696 (1968). Such photographs may aid the jury in arriving at a fair understanding of the evidence. Having reviewed the photographs, we find no abuse of the trial court’s discretion in the allowance of the photographs.

VII

Lastly, Fetterly argues that the Idaho death penalty procedure is unconstitutional. Fetterly maintains that Idaho’s Constitution, Art. 1, § 7, mandates a jury-imposed death sentence. This Court has previously addressed the issues which Fetterly raises here. See State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983); State v. Creech, 105 Idaho 900, 670 P.2d 463 (1983). We continue to adhere to the position stated in both Creech and Sivak, and find the Idaho death penalty procedure to be constitutional.

VIII

Pursuant to I.C. § 19-2827,2 this Court is to review the imposition of the death penalty to determine if.the sentence of death was (1) 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, and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.

We believe that the findings of the trial court, in considering the death penalty under I.C. § 19-2515, reflect a rational dispassionate evaluation of the factual circumstances of the case and demonstrate a thorough consideration of all of the relevant evidence produced at the sentencing hearing. There is no indication that sentence was imposed under the influence of passion, prejudice or any other arbitrary factor.

The aggravating circumstances found by the trial court are amply supported by the record. The trial court found that the defendant entered the victim’s home on the evening of September 6, for the express purpose of taking the victim’s property which he could sell to obtain money to live on. The defendant remained in the home overnight, waiting for the victim, who had befriended him, to return home. When he returned, the victim was hit over the head, bound with duct tape around his wrists, legs, with tape placed over his eyes and mouth to silence him, and even over his nose which would have ultimately asphyxiated him. Then the defendant savagely stabbed the victim’s “body no less than five times, severing not only vital organs, but completely cutting the breastbone (sternum); the force was intentional and with considerable strength.” The body was then callously disposed of by throwing it into the Snake River. The trial court also found that “several hours after the killing, and when shock would normally set in on the average human being, the defendant went back to the victim’s home, gathered *773up the victim’s belongings and commenced selling them around town as though nothing had happened; blatantly and openly drove the victim’s vehicle as though with permission.”

The trial court further found that the commission of the crime had been planned as much as two or three days in advance. The evidence supports the above findings from which the trial court concluded that the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity; that by the murder or the circumstances surrounding its commission the defendant exhibited utter disregard for human life; and that the murder was committed in the commission of a felony, i.e., burglary, and was accompanied by the specific intent to cause the death of a human being. The record amply supports the trial court’s finding of those aggravating circumstances.

Finally, we have reviewed our pri- or cases to determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Comparing these cases3 with the record, the trial court’s findings in support of the death penalty, and the pre-sentence report in this case, we conclude that the sentence imposed in this case is not disproportionate to other cases in which the imposition of the death penalty has been approved.

Accordingly, the judgment of the district court imposing the death penalty is affirmed.

DONALDSON, C.J., and SHEPARD, J., concur.

. We have reviewed the newspaper articles in question and do not find the publicity, under the facts of this case, to be prejudicial. Most of the coverage of the crime was published three months prior to trial. Further, the jury was questioned as to whether they had seen the newspaper coverage published the night before the trial. Specifically, the record reflects that shortly after 9:00 a.m. on December 13, 1983, before any evidence was presented, the following exchange occurred:

"COURT: Ladies and gentlemen, were any of you approached, or did anything happen during the evening recess that would change your ability to sit as a fair and impartial juror in this matter? (Whereupon all jurors indicated there was no problem.)
"COURT: No one was confronted with any information, nothing was heard or read in the news media or anything of that nature? (Whereupon all jurors indicated they had no problem)."
*770Having considered the circumstances surrounding the pretrial publicity, and the steps taken to ensure that the defendant received a fair trial, we must agree with the district court’s exercise of its discretion.

. "19-2827. Review of death sentences — Preservation of records. — (a) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Idaho. ____

(b) The Supreme Court of Idaho shall consider the punishment as well as any errors enumerated by way of appeal.
(c) With regard to the sentence the court shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
(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 or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” (Emphasis added.)

. Those cases we have considered include:

State v. Bainbridge, 108 Idaho 273, 698 P.2d 335 (1985); State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984); State v. McKinney, 107 Idaho 180, 687 P.2d 570 (1984); State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983); State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983); State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983); State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983); State v. Major, 105 Idaho 4, 665 P.2d 703 (1983); State v. Mitchell, 104 Idaho 493, 660 P.2d 1336 (1983), cert. den. 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983); State v. Carter, 103 Idaho 917, 655 P.2d 434 (1982); State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982); State v. Stormoen, 103 Idaho 83, 645 P.2d 317 (1982); State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981); State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980); State v. Padilla, 101 Idaho 713, 620 P.2d 286 (1980); State v. Fuchs, 100 Idaho 341, 597 P.2d 227 (1979); State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979); State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979); State v. Bradley, 98 Idaho 918, 575 P.2d 1306 (1978); State v. Birrueta, 98 Idaho 631, 570 P.2d 868 (1977); State v. Allen, 98 Idaho 782, 572 P.2d 885 (1977); State v. Ward, 98 Idaho 571, 569 P.2d 916 (1977); State v. Gerdau, 96 Idaho 516, 531 P.2d 1161 (1975); State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975) cert. den. 423 U.S. 1089, 96 S.Ct. 881, 47 L.Ed.2d 99; State v. Hokenson, 96 Idaho 283, 527 P.2d 487 (1974); State v. Hatton, 95 Idaho 856, 522 P.2d 64 (1974); State v. Standlee, 96 Idaho 165, 525 P.2d 360 (1974); State v. Foley, 95 Idaho 222, 506 P.2d 119 (1973); State v. Beason, 95 Idaho 267, 506 P.2d 1340 (1973); State v. Atwood, 95 Idaho 124, 504 P.2d 397 (1972); State v. Sanchez, 94 Idaho 125, 483 P.2d 173 (1971); State v. Gomez, 94 Idaho 323, 487 P.2d 686 (1971); State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert. den. 401 U.S. 942, 91 S.Ct. 947, 28 L.Ed.2d 223 (1971); State v. Radabaugh, 93 Idaho 727, 471 P.2d 582 (1970); State v. Rodriguez, 93 Idaho 286, 460 P.2d 711 (1969); State v. Jiminez, 93 Idaho 140, 456 P.2d 784 (1969); King v. State, 93 Idaho 87, 456 P.2d 254 (1969); State v. Gonzalez, 92 Idaho 152, 438 P.2d 897 (1968); State v. Chaffin, 92 Idaho 629, 448 P.2d 243 (1968); Carey v. State, 91 Idaho 706, 429 P.2d 836 (1967); State v. Koho, 91 Idaho 450, 423 P.2d 1004 (1967); State v. Anstine, 91 Idaho 169, 418 P.2d 210 (1966); State v. Gish, 87 Idaho 341, 393 P.2d 342 (1964); State v. Clokey, 83 Idaho 322, 364 P.2d 159 (1961); State v. Burris, 80 Idaho 395, 331 P.2d 265 (1958); State v. Snowden, 79 Idaho 266, 313 P.2d 706 (1957); State v. Buchanan, 73 Idaho 365, 252 P.2d 524 (1953); State v. Owen, 73 Idaho 394, 253 P.2d 203 (1953) (considered only in terms of crime committed and penalty imposed; overruled on substantive law point in State v. Shepherd, 94 Idaho 227, 486 P.2d 82 (1971); State v. Pettit, 104 Idaho 601, 661 P.2d 767 (Ct.App.1983); State v. Fenley, 103 Idaho 199, 646 P.2d 441 (Ct.App.1982)).