JOHNSON, Justice, concurring and dissenting.

I concur with the majority concerning the use of the preliminary hearing testimony in sentencing and concerning the allegations of newly discovered evidence. I dissent from the majority's decision to affirm the trial court's dismissal of that portion of Stuart's post conviction petition in which he alleges that the state offered not to recommend the death penalty if he would plead guilty to first degree murder by torture.

The majority agrees with the trial court's conclusion that there was no merit to Stuart's contention that, by entering into negotiations, his constitutional right to jury trial was violated. The rationale for both the trial court's decision and the majority's opinion is that Stuart did not accept the proposed plea bargain and that the sentencing court would not have been bound to accept the plea bargain in any event. In my view, when the prosecutor offered not to seek the death penalty. Stuart was impermissibly forced to choose between exercising his constitutional right to a jury trial and proceeding to sentencing with the prosecutor's recommendation that he not be sentenced to death. By choosing to assert his constitutional right, Stuart was penalized when the prosecutor recommended the death penalty following his conviction.

In his affidavit in support of Stuart's petition for post conviction review Stuart's attorney stated that on several occasions the prosecutor offered to withdraw his request for imposition of the death penalty if Stuart would agree to plead guilty to a charge of first degree murder by torture. In his unverified response the prosecutor stated that to the best of his recollection this offer was never made. Because it was not verified or in affidavit form, this response did not controvert the allegation of the petition concerning the proposed plea bargain. The facts stated in the affidavit of Stuart's attorney should have been considered as being true for the purpose of determining whether to dismiss the petition. Cooper v. State, 96 Idaho 542, 545, 531 P.2d 1187, 1190 (1975).

In my view, a proposed plea bargain in which a prosecutor proposes not to seek the death penalty must be treated differently than any other proposed plea bargain. Where the state seeks the imposition of the death penalty we should impose the strictest standard of review to determine whether the state has violated the rights of the defendant. Death penalty cases impose a special duty on us. This court has held that we must review a death sentence "qualitatively different than our review of an ordinary criminal sentence." State v. Scroggins, 110 Idaho 380, 387, 716 P.2d 1152, 1159 (1985). Justice O'Connor of the United States Supreme Court has recently pointed out:

Under the Eighth Amendment, the death penalty has been treated differently from all other punishments. See, e.g., California v. Ramos, 463 U.S. 992, 998-999, and n. 9, 103 S.Ct. 3446, 3451-3452, and n. 9, 77 L.Ed.2d 1171 (1983). Among the most important and consistent themes in this Court's death penalty jurisprudence is the need for special care and deliberation in decisions that may lead to the imposition of that sanction. The Court has accordingly imposed a series of unique substantive and procedural restrictions designed to ensure that capital punishment is not imposed without the serious and calm reflection that ought to precede any decision of such gravity and finality.

Thompson v. Oklahoma, 487 U.S. 815, 856, 108 S.Ct. 2687, 2710, 101 L.Ed.2d 702, 733 (1988). While these cases did not address a death penalty defendant's rights to jury trial and to due process of law, we should apply the same degree of special care in determining whether those rights have been violated.

In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the Supreme Court struck down the death penalty provision of the Federal Kidnapping Act because the death penalty could be imposed only if the defendant exercised the right to jury trial and was convicted. It could not be imposed if the defendant waived the right to jury trial or pled guilty. The Court stated:

Whatever the power of Congress to impose a death penalty for violation of the Federal Kidnapping Act, Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right.

390 U.S. at 583, 88 S.Ct. at 1217, 20 L.Ed.2d at 147.

In a later case not involving the death penalty the Court declined to apply Jackson to invalidate a more severe penalty imposed because the defendant chose to have a jury trial. In doing so the Court said that "the pressures to forgo trial and to plead to the charge . . . are not what they were in Jackson." Corbitt v. New Jersey, 439 U.S. 212, 217, 99 S.Ct. 492, 495, 58 L.Ed.2d 466 (1978). The Court focused on the fact that "the death penalty . . . is `unique in its severity and irrevocability,' Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976)." Id.

In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Court held that the due process clause of the fourteenth amendment was not violated when a prosecutor carried out a threat made during plea negotiations to have the accused reindicted on more serious charges, if he did not plead guilty to the offense with which he was originally charged. The death penalty was not involved in Bordenkircher. Jackson and Corbitt convince me that if the death penalty had been involved in Bordenkircher the Court would have held that the actions of the prosecutor did violate the defendant's rights to jury trial and due process. I would apply that principle to this case.

Following the verdict in this case the trial court requested the prosecutor to advise the court whether he would seek the death penalty at the time of sentencing. The prosecutor told the judge: "I anticipate that as a possibility, your Honor. I need to research the Statute. I had not done that prior to finding —." Transcript at 973, State v. Stuart, No. 14865 (the direct appeal). The prosecutor subsequently filed a notice of intent to request the death penalty and sought the death penalty at the time of sentencing.

I would reverse the trial court's dismissal of the post conviction petition as it relates to the allegation that prior to trial the prosecutor offered not to seek the death penalty if Stuart would plead guilty to first degree murder by torture. I would hold that if the trial court were to be convinced after a hearing on this allegation that the prosecutor had in fact made such an offer, the trial court should have resentenced Stuart without considering any recommendation of the prosecutor for the imposition of the death penalty.

Where the death penalty is in issue the prosecutor as an agent of the state should not be allowed to penalize the defendant by recommending death after having forced the defendant to choose between the exercise of the right to a jury trial and the opportunity to go to sentencing with the recommendation of the prosecutor for life imprisonment. To allow the prosecutor to do so would violate the defendant's rights under both the federal and state constitutions to jury trial and to due process of law before being deprived of his life.

BISTLINE, Justice, dissenting.

Stuart I refers to Stuart's direct appeal, S.Ct. No. 14865. The opinions of the Court in Stuart I are found at 110 Idaho 163, 715 P.2d 833. Stuart II, S.Ct. No. 17014, refers to the March 1989 opinions of this Court on Stuart's appeal of the district court's denial of post conviction relief. However, the March 1989 opinion was withdrawn, a March 1990 opinion was also issued and withdrawn, and now the October 1990 opinion stands as the Stuart II opinion for the majority. Opinion No. 28, filed March 10, 1989, can be found at 89 ISCR 245; Opinion No. 35, filed March 12, 1990, can be found at 90 ISCR 375. In both Stuart I and Stuart II, rehearings were requested and granted, and the case reargued, and in each the Court issued a first and second opinion.

It is now abundantly clear that the Court will issue its final opinion in the saga of State v. Stuart, Idaho's first torture murder case. Such being the state of affairs, this prologue is written not for the benefit of my respected brethren, but as an aid for those judges in the federal system who will preside over Stuart's endeavors at obtaining in those courts a more just treatment than that dealt to him in this system. My comments are offered for the purpose of enabling our federal counterparts to better wind their way through the many pages of transcript, record, and briefs. Added to that are the opinions written on the direct appeal ( Stuart I), and now on denial of post-conviction relief ( Stuart II).

THE VARIANCE AND PROCEDURAL DEFAULT

My opinion in Stuart I called the attention of the other four members of this Court to the highly prejudicial error in the trial court's instructions. Unquestionably there is a fatal variance between the charge of the Amended Information and the trial court's instruction to the jury:

The defendant was charged with the fatal striking of the boy with the intent to inflict extreme pain, or with the intent to satisfy some sadistic inclination of the defendant, but the court instructed the jury that ` It shall also be torture to inflict on a human being extreme and prolonged acts of brutality irrespective of proof of intent to cause suffering' — language which is found in § 18-4001, but which was wholly not included in the charge upon which the defendant was put to trial.

State v. Stuart, 110 Idaho 163, 195, 715 P.2d 833, 865 (1985) (Bistline, J. dissenting) (emphasis in original). Those justices in the majority were not in the least aroused on being alerted to the variance, which can only mean that they read what I wrote and ignored it, or, they did not bother to read it. For certain there was no response.

The opinions were issued in Stuart I, and a petition for rehearing was filed by Stuart's counsel. A supporting brief was thereafter filed. The brief raised five issues, one of which was the variance issue just mentioned. Counsel for Stuart set out the charging portion of the Amended Information. It alleges:

That Gene Francis Stuart of Orofino, Idaho, on or about the 19th day of September 1981, at Orofino, in the County of Clearwater, State of Idaho, then and there being, did then and there unlawfully and feloniously kill a human being, with the intentional application of torture to said human being, to wit: that the said Gene Francis Stuart did strike and hit Robert Miller, a human being, repeatedly with the intent to cause suffering or to satisfy some sadistic inclination of the said Gene Francis Stuart, thereby inflicting great bodily injury upon Robert Miller and mortally wounding Robert Miller, from which wounds the said Robert Miller, a three year old boy, sickened and died in the County of Clearwater, State of Idaho, on the 19th day of September 1981.

All of which is contrary to Section 18-4001, 18-4003 of the Idaho Code.

R., 14-15, S.Ct. No. 14865 ( Stuart I), Amended Information (emphasis added). Counsel made no objection to the giving of Jury Instruction 16, which was in the exact language of the charge spelled out in the Amended Information:

INSTRUCTION NO. 16

Ladies and Gentlemen of the Jury, you are instructed that the State of Idaho has filed a criminal information against the defendant, Gene Francis Stuart, charging him with First Degree Murder alleging that the crime was committed as follows:

That Gene Francis Stuart of Orofino, Idaho on or about the 19th day of September, 1981, at Orofino, in the County of Clearwater, State of Idaho, then and there being, did then and there unlawfully and feloniously kill a human being, with the intentional application of torture to said human being, to wit: that the said Gene Francis Stuart did strike and hit Robert Miller, a human being, repeatedly with the intent to cause suffering or to satisfy some sadistic inclination of the said Gene Francis Stuart, thereby inflicting great bodily injury upon Robert Miller, and mortally wounding Robert Miller, from which wounds the said Robert Miller, a three year old boy, sickened and died in the County of Clearwater, State of Idaho, on the 19th day of September, 1981.

To this charge, the defendant, Gene Francis Stuart, has plead not guilty.

R., 53, Stuart I. However, the district court gave the jury another instruction in language inconsistent with the charge of the Amended Information:

INSTRUCTION NO. 18

Murder is the unlawful killing of a human being with malice aforethought or the intentional application of torture to a human being, which results in the death of a human being. Torture is the intentional infliction of extreme and prolonged pain with the intent to cause suffering. It shall also be torture to inflict on a human being extreme and prolonged acts of brutality irrespective of proof of intent to cause suffering. The death of a human being caused by such torture is murder irrespective of proof of specific intent to kill; torture causing death shall be deemed the equivalent of intent to kill.

R., 55, Stuart I (emphasis added). Counsel for Stuart aptly wrote:

As noted by Justice Bistline, this Instruction relieved the jury from any responsibility to find proof of intent to cause suffering. It also permitted a finding of guilt if the jury found extreme and prolonged acts of brutality to have existed, despite the fact that such acts were not charged in the Amended Information, nor supported by any reasonable construction of the events which occurred September 19, 1981. Appellant readily acknowledged at trial that, on September 19, 1981, he poked young ROBERT MILLER in the chest, spanked him, and struck the blow which ultimately caused his death. The primary issue, considered both at trial and on Appeal, was not Appellant's actions, but his state of mind on September 19, 1981, the day these acts were committed. As the Trial Court indicated on pages 449-450 of the Trial Transcript, and quoted by this Court in its May 3, 1985, Opinion at pages 11-12:

`[THE COURT . . . In] this particular case, the Prosecutor must convince the trier of fact that your client was engaged in a course of torture. And produced this child's death, not necessarily intending death but only intending torture . . . And so this case, to a great extent, is going to turn upon what the jury thinks was going on in your client's mind during that interval when he dealt with this child . . .'

As noted above, all parties were aware that the charge in question could only be supported by a showing of intent on the part of Appellant to cause suffering or to satisfy some sadistic inclination. Indeed, this element of intent was considered by the Trial Court to be so important that it allowed admittedly prejudicial evidence to be presented at Trial concerning events, unrelated to the crime charged or to its victim, and which allegedly occurred as distant as ten (10) years prior to the date of ROBERT MILLER'S death. Jury Instruction Number 18, which obviated any necessity of a finding of intent to cause suffering, if extreme and prolonged acts of brutality were found to have existed, was extremely improper given the specific language of the Amended Information. It is equally apparent that, if such intent need not be proven, the propriety of allowing admittedly prejudicial evidence for purposes establishing this intent, is seriously questioned. If intent to cause suffering need not be proven, it cannot be said that the probative value of this evidence outweighed its highly prejudicial effect.

Appellant's Memorandum in Support of Petition for Rehearing in Stuart I, 3-5 (filed July 8, 1985) (emphasis added).

A rehearing was granted but limited to the issue of error in the giving of Jury Instruction 18. An appropriate order was entered directing the State to file a brief responsive to Stuart's brief, but only to the single issue, and Stuart was allowed to file a reply brief.

The Solicitor General, Lynn E. Thomas, authored the State's five page brief, the gist of which was that Stuart was in "procedural default:"

The failure to raise this question in the appeal was a procedural default which precludes raising the issue not only here, but in post-conviction proceedings, Watkins v. State, 101 Idaho 758, 620 P.2d 792 (1980), and in the federal courts, Wainwright v. Sykes, 433 U.S. 72, 53 L.Ed.2d 594, 97 S.Ct. 2497 (1977).

Brief of Respondent in Response to Petition for Rehearing in Stuart I, 4 (filed October 21, 1985). At oral argument, "procedural default" was again urged to the Supreme Court but ran into an obstacle in the person of Justice Shepard:

[MR. THOMAS]: So, I think the Court should consider this to be a defaulted claim.

JUSTICE SHEPARD: Mr. Thomas, let me say this. I don't want you to believe that I'm arguing it, but I want to give you my impression at the moment, and then you either comment if you think I'm wrong, or ignore what I said and go on to your next point, which I assume you're about to do. It seems to me that the legislature in its wisdom or lack thereof has said to this Court, `Thou shalt review a death penalty case, whether there be an appeal or not.' Right?

MR. THOMAS: The death sentence is to be reviewed whether this is an appeal or not, but not other questions.

JUSTICE SHEPARD: The legislature has said to this Court, `You will examine the imposition of a death sentence and determine whether it is proportionate to other sentences imposed in other cases.' Something that certainly we don't expect trial courts to do and if they did it, we'd probably say they were in error in doing it. The legislature has said, `Death penalty cases are different,' for whatever reason, on the finality if nothing else. I don't really accept what I perceive your argument to be, that we are to apply procedural default rule in a death penalty case because counsel for the appellant did not raise the point in the initial briefing and hearing on it but has raised it now. Now you tell me why I shouldn't think that way, Mr. Thomas.

MR. THOMAS: Well, in the context of the federal constitution, if I can start there, the United States Supreme Court seems to have emphasized several times that as far as the procedural rules are concerned, it doesn't make any difference whether the case is a capital case or another kind of case. It's important for the state to have the right to enforce its procedural rules. Otherwise, these cases can go on forever. From a procedural point of view there isn't any difference between a capital case and another kind of case. The legislature, in capital cases, has asked the Court to review the sentence, but not the procedural niceties or the procedural aspects of the case unless an appeal is brought raising those questions specifically. I don't the believe the legislation creates a procedural distinction or was intended to create a procedural distinction between capital cases and other kinds of cases. It is just as important in a capital case to insist that one be precluded from interminable litigation of new ideas thought up after the decision comes down adversely to the defendant. As I say, if there is a real question about the reliability of the result, the accuracy of the finding of guilt or innocence, that problem may be addressed, even under Wainwright v. Sykes and even under this Court's procedural rules. The fundamental error rule, for example, would permit that even if it were defaulted. But the procedural rules do prevent the relitigation of claims that do not cast doubt on the reliability of the result and it seems to us that that is as it should be. Otherwise, capital cases will be carried on forever when counsel comes forward with another theory that wasn't used at trial but might be successful this time around. Allowing that kind of undermining of the finality of these cases seems to me as only one possible result, and that is to undermine public confidence in the ability of the courts to enforce the law. So, both from a legal and a policy perspective, I think it would be a bad idea.

JUSTICE BISTLINE: Mr. Thomas, would I understand from your response to Justice Shepard's question is that if we had a defendant, like sometimes as Creech is and sometimes as he is not, says `okay, I've been convicted, I don't want an appeal,' we still have to do the mandatory bit under the legislative direction. We have to do our review. And if Creech did not have a lawyer and we were doing our review, are you saying that we would not, besides reviewing the sentence, look to ascertain to see that he had a fair and impartial trial?

MR. THOMAS: Oh yes, absolutely, Your Honor. Sentence review is sentence review in the context of capital cases. The Court is to determine whether, assuming that the finding of guilt is accurate, the sentence of death was proper in the facts and circumstances of the case. But I don't believe that was an invitation to the Court to go into procedural questions or other kinds of questions relating to the admissibility of evidence of whatever that do not impact on the court's decision to impose a particular sentence.

JUSTICE BISTLINE: I'm not sure I understand. Are you saying that we would or would not search the record of the trial proceedings to see if the defendant had had a fair trial?

MR. THOMAS: It think that's correct. I think that the automatic review —

JUSTICE BISTLINE: What's correct? That we would or would not?

MR. THOMAS: You would not have the authority to go beyond sentence review which is the only thing specified for automatic review in the context of the capital case. It's almost inconceivable that there's not going to be an appeal in a capital case, but let us assume the defendant says I don't want an appeal. I want to be executed, such as Gary Gilmore did. The Court isn't off the hook in terms of sentence review, but it isn't entitled in those circumstances to go into the procedural and evidentiary aspects of the trial.

JUSTICE BISTLINE: If you're correct, then why would we require, which we do require, assuming there's no appeal by the defendant himself, why do we require the transcript of trial proceedings?

MR. THOMAS: Well, the transcript of the trial proceedings lays out the facts, gives the factual background of the crime. It tells all the details relating to the crime and that's an important consideration in passing sentence because the nature of the offense is, of course, a consideration under the capital aggravating factors that are set out in the aggravating list in the statute. In fact that's the fundamental premise of those aggravating factors, how the crime was committed and the defendant's culpability in the crime.

JUSTICE BISTLINE: So you would say, in effect, that when we have an appeal in a case where the death sentence has been imposed, that any member of the Court — and there is counsel for the defendant, and we're making the mandatory review — that any member of the Court who concerns himself with a question as to the fairness of the trial that hasn't been brought up by the defendant himself is just being sort of an intermeddler, a busybody? Such as myself.

MR. THOMAS: Not only that, Your Honor, but I think you are saying `and finally, forget what I have said, because this case is going over to the federal court and they'll make the decision anyway.' Because that's really what you do when you don't insist on adherence to the state's procedural rules. And I don't think that's really a good idea, because you've got on a collateral review a federal court is at least twice removed from the facts. The record becomes more attenuated. The chance of factual error becomes greater and greater and obviously the interest in finality is attenuated as well.

Stuart I, 110 Idaho at 231-33, 715 P.2d at 901-03 (Bistline, J. dissenting) (some emphasis in original; some emphasis added).

The justices who comprised the majority in Stuart I upheld both the conviction and the death sentence by relying in part on the talisman of procedural default. They have therefore yet to come to grips with the most egregious error committed by the trial court. The error may have been unintentional; however, all things considered, it more than likely was intentional. Simply put, at the end of a three week trial the court's instructions to the jury included an alternate ground for conviction which had not been pleaded in the Amended Information.

This Court granted a rehearing after the Stuart I opinion was issued specifically to address the issue of given Jury Instruction 18. After the rehearing, the Court stood on its old opinion. Whatever might have been in the mind of the majority is still there, because the majority addressed nothing on rehearing.

The majority's treatment of the Stuart I rehearing is similar to the treatment afforded the petitioners by the Arkansas Supreme Court in Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948). In Cole, the state supreme court had affirmed the petitioners' convictions by invoking a charge not included in the information. The Cole defendants were tried and convicted of violating § 2, but the state supreme court upheld their convictions under § 1 of Act 193 of the 1943 Arkansas legislature. To compound the error, the state court:

later denied a petition for rehearing in which petitioners argued: `To sustain a conviction on grounds not charged in the information and which the jury had no opportunity to pass upon, deprives the defendants of a fair trial and a trial by jury, and denies the defendants that due process of law guaranteed by the 14th Amendment to the United States Constitution.'

Cole, 333 U.S. at 200, 68 S.Ct. at 516.

Here, a majority of this Court has decided not to consider the merits of Stuart's contention that Jury Instruction 18 varied substantially with the Amended Information. The majority must have also decided not to consider the important message the United States Supreme Court sent to the state supreme courts back in 1948:

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. . . . It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.

Cole, 333 U.S. at 201, 68 S.Ct. at 517 (citations omitted); quoted with approval in State v. Smith, 117 Idaho 891, 792 P.2d 916 (1990) (Bistline, J. specially concurring).

FAILURE TO INSTRUCT AND OBJECT

As suggested above procedural default must have occupied the minds of the majority in deciding Stuart I, because that is how Stuart's initial challenge to the jury instructions was summarily treated:

[W]e note that appellant's counsel accepted the instructions as given by the court, and noted that he had no objection to the instructions the court intended to give. Thus, any error in failing to instruct on this charge [of a lesser included offense], if indeed one exists, was invited error and will not be considered on appeal. State v. Lopez, 100 Idaho 99, 593 P.2d 1003 (1979).

Stuart I, 110 Idaho at 170, 715 P.2d at 840.

Lopez, however, was discussed in my Stuart I opinion, under the section titled "FAILURE TO INSTRUCT," 110 Idaho at 188, 715 P.2d at 858. See also State v. Eisele, 107 Idaho 1035, 1037, 695 P.2d 420, 422 (1985) ("I.C.R. 30 as amended does not preclude assignment of error in instructing where the defendant in a criminal case fails to object to the instructions in question."). Moreover, instructing the jury in lesser included offenses is not discretionary with the court, where the evidence would reasonably support such a conviction on a lesser included offense. As our Court of Appeals has made clear:

Idaho Code § 19-2132(b) states: `The court shall instruct the jury on lesser included offenses when they are supported by any reasonable view of the evidence.' In State v. Lopez, 100 Idaho 99, 102, 593 P.2d 1003, 1006 (1979), our Supreme Court stated: `It is clear that I.C. § 19-2132(b) makes it the duty of the trial court to instruct the jury on lesser included offenses when they are supported by a reasonable view of the evidence, even if the court is not requested to do so.' The same duty exists even if a defendant, for tactical reasons, expressly requests that no instruction on a lesser included offense be given.

State v. Atwood, 105 Idaho 315, 318, 669 P.2d 204, 207 (Ct.App. 1983). The perceived procedural defaults no doubt flavored the entirety of the Stuart II majority opinion, making it more difficult for the justices in the majority to be at all concerned with the variance between the jury instruction and the information.

PROPORTIONALITY TOUCHED UPON

Twenty-one years ago Justice Shepard, now recently departed, expressed the view that an appellate dissent "ordinarily occurs only when a Justice's sense of outrage overcomes his sense of inertia." Deshazer v. Tompkins, 93 Idaho 267, 272, 460 P.2d 402, 407 (1969). That was his first year of occupancy of a seat on the bench of the Idaho Supreme Court. The outrage which he experienced in Deshazer had to do with civil litigation which had been protracted over seven and one-half years. The relief Deshazer sought was for injuries to his arm. Justice Shepard closed his opinion in that case by remarking that "this case demonstrates the great truth contained in that simple statement, `justice delayed is justice denied.'" Deshazer, 93 Idaho at 274, 460 P.2d at 409 (Shepard, J. dissenting).

Stuart is not a civil case. The stakes at issue here are somewhat higher than in Deshazer. Here, the statement Justice Shepard referred to in Deshazer may be worded thusly: "Justice denied is injustice, and injustice dealt out carelessly is outrageous enough to totally destroy all sense of inertia." It has been conceded that Gene Francis Stuart, the defendant, was responsible for the death of Robert Miller. It has been conceded that he is guilty of the crime of manslaughter. It has been established that a jury convicted him of first degree torture murder. It has been equally well-established that the judge, now retired from such office, long ago sentenced Stuart to death. It is now a historical fact that on the direct appeal the conviction and the sentence were both affirmed. What has not been established and is not true is that Stuart had a fair trial on the issue of his conviction and on the issue of the imposed death sentence. As Justice Shepard has also written, the law does not guarantee an accused person a perfect trial, but it does guarantee a fair trial.

In Stuart I, on the direct appeal challenging the conviction and sentencing, Justice Huntley wrote a separate concurrence in order to register his view that:

[T]he Idaho capital sentencing process is unconstitutional in two respects:

(1) It does not provide for utilization of the jury, which is in violation of both the Idaho and United States constitutions; and

(2) The sentencing proceeding, as conducted by the trial courts with the approval of this court, by permitting the admission of the presentence investigation report and other hearsay evidence over objection of the accused deprives the accused of the right to cross-examine and confront witnesses.

Stuart I, 110 Idaho at 177, 715 P.2d at 847 (Huntley, J. concurring specially) (emphasis added). The second of Justice Huntley's constitutional views should have been everyone's concern.

Following the rehearing in Stuart I a second opinion for the Court was issued, the full text of which was these two sentences: "A petition for rehearing in this matter was granted and the cause reargued. The Court has reviewed the record and considered the arguments presented by counsel, and continues to adhere to the views expressed and the conclusion reached in the earlier opinion." Stuart, 110 Idaho at 227, 715 P.2d at 897 (on rehearing February 20, 1986). There was no discussion whatever of the variance, which issue the Court had deemed of sufficient importance to merit being reheard and reconsidered.

In that one year interval which produced nothing in Stuart's case, two more death penalty decisions emanated from this Court, namely State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985); and State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985). In each case, the death penalty was reversed and remanded for resentencing of a penalty less than death. The majority, however, saw no reason to reconsider the proportionality of Stuart's sentence in light of those two decisions. That is a sad commentary, because:

The Court's reasoning in its Windsor and Scroggins opinions is equally applicable in Stuart. In Scroggins the child killed was but a few years older than the child killed by Stuart. The victim, by the very reason of being older, was not only killed in a manner more brutal than in Stuart, but was kidnapped, raped, and robbed of any vestige of human dignity before she was murdered. Worse yet, the helpless handcuffed girl was made to suffer the knowledge that she was going to be killed. Obviously, where there is such a crime as torture murder, it was more in appearance in Scroggins than it was here.

Similarly with the Windsor case. Here the distinction between Scroggins and Windsor is only in the fact that the victim in the latter was not a child, but an older man who had befriended his captors, torturers, and killers.

Because the legislature has insisted on proportionality, and the Court heretofore made its proportionality analysis in this case without having the benefit of the proportionality analysis it would shortly thereafter make in Windsor and Scroggins, and the district court at sentencing in Stuart also was without the benefit of those opinions, my vote was tendered to treat Stuart as evenhandedly as the Court dealt justice to Scroggins and to Windsor.

Stuart I, 110 Idaho at 228, 715 P.2d at 898 (Bistline, J. dissenting).

The Court's initial opinion in Stuart II, issued on March 10, 1989, denied any post-conviction relief. Today's opinion, for whatever reason, and I know of none, withdraws that opinion of one year ago. The majority now has the benefit of the views of two dissenting opinions (Justice Johnson and myself), and an excellent brief by Stuart's attorney (Robert E. Kinney).

THE FACADE THAT THE DEFENDANT STIPULATED

In Part IIA of the March 1990 and today's Stuart II opinion for the Court, the majority has taken note of Stuart's contention that the trial court erred in considering preliminary hearing testimony at the sentencing hearing, but continues to deny any relief in post-conviction proceedings:

The trial court denied Stuart's claim of error in the use of preliminary hearing testimony at sentencing, specifically pointing out that in Stuart's original direct appeal to this Court, State v. Stuart, 110 Idaho 163, 176, 715 P.2d 833, 846 (1985), that this Court had held that `[i]t was stipulated at the sentencing hearing that when sentencing the defendant the court would consider evidence presented at the preliminary hearing and trial along with the presentence investigation report.'

March 1990 Stuart II (emphasis added). There is no doubting that this accurately describes Judge Schilling's ruling, which was based on what Judge Schilling had read in the Stuart I opinion issued by this Court, and which was written by Chief Justice Bakes for the majority. Finally the majority comes face to face with what it declared to be so, but concerning which nothing could have been further from the truth:

It was stipulated at the sentencing hearing that when sentencing the defendant the court would consider evidence presented at the preliminary hearing and trial along with the presentence investigation report.

Stuart I, 110 Idaho at 176, 715 P.2d at 847 (emphasis added). This misstatement did not go unnoticed, but was immediately questioned in my dissent to the March 1989 Stuart II. However, in the March 1990 Stuart II majority opinion Chief Justice Bakes now, and much belatedly, attributes the misstatement to Judge Schwam. Judge Schwam's findings in sentencing Stuart to the penalty of death are contained in the record. The excerpt from Judge Schwam's findings now relied upon in the March 1990 edition of the majority opinion in Stuart II is this:

3. That a sentencing hearing was held on December 1st, 1982, pursuant to notice to counsel for the defendant and in the presence of the defendant the Court heard relevant evidence in aggravation and mitigation of the offense and arguments of counsel. Further, it was agreed and understood by both the State and the defendant that the Court would rely upon, as part of the sentencing hearing, the testimony at the preliminary hearing and the trial.

R., 220-21, Findings of the Court in Considering the Death Penalty ( Stuart I). For certain Judge Schwam wrote that finding, and in doing so was perpetrating, and apparently perpetuating, what may well be the most insidious untruth in the history of Idaho criminal jurisprudence. There was no such stipulation.

Much effort and much time were expended in pointing out to the other members of the Court in the March 1989 Stuart II opinions, that at the sentencing hearing:

After the State had put on one witness, the jailer, who testified that he had observed no remorse on defendant's part, Judge Schwam ruled that he would discount [it] completely and did so by striking all of the jailer's testimony. The State presented no more witnesses. The following then took place:

THE COURT: Does the defense have any witnesses?

MR. KINNEY: Your Honor, in light of the fact that the State has presented no witnesses in aggravation in addition to, of course, the trial testimony, we tend to also rely on the trial and argument.

THE COURT: Okay. I gather it's the State's position that it has a right to and intends to rely upon all the cross-examination testimony elicited either at the Preliminary Hearing or the trial; is that correct?

MR. CALHOUN: Yes, sir, that is correct.

THE COURT: Okay.

MR. KINNEY: Just a moment, please?

THE COURT: Yes.

MR. CALHOUN: I believe I've so stated in the paperwork that I filed.

The prosecutor's statement that the State would rely upon preliminary testimony was just that, the State's position. For certain it was not the stipulation which this Court's opinion elevated it to on the direct appeal — apparently on the sole basis of Judge Schwam's finding of such a stipulation, and without anyone on this Court making an independent examination of the record in order to ascertain the validity of Judge Schwam's finding.

March 1989 Stuart II, (Bistline, J. dissenting) (emphasis in original; footnote added).

The author of the Court's majority opinion has wondered and speculated as to why it appears that the issue of Judge Schwam's utilization of the preliminary hearing transcript was not raised on the appeal in Stuart I. He surmises in the March 1990 Stuart II majority opinion that:

The reason for not raising the issue on direct appeal was no doubt because this Court, at the time of sentencing, had previously held in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981), that the use of a preliminary hearing transcript at the sentencing/aggravation/mitigation hearing was not in error, and that no formal sentencing hearing as provided in I.C. § 19-2516 had been requested.

March 1990 Stuart II. This mirrors the majority's statement in today's Stuart II opinion. ( See my discussion on this point in my opinion dissenting on the denial of petition for rehearing, which follows immediately after this opinion.) When one examines State v. Osborn, however, this conjecture becomes of highly doubtful validity. One only need turn to 102 Idaho at 408, 631 P.2d at 190, to discover that:

After submission of a presentence report, an aggravation-mitigation hearing was held. I.C. § 19-2515. At that hearing, neither prosecution nor defense called any witnesses. The state advised the court that `because I think we do have a — a good record of what transpired in the preliminary hearing instead of calling witnesses today, [I choose] to rely on the testimony presented at the preliminary hearing. . . .' Similarly, appellant's counsel relied upon the facts brought forth in the preliminary hearing and in the reports to the court, and called no additional witnesses, although the appellant did address the court in his own behalf.

Osborn, Id. (insertion and deletion in original). Osborn had plead guilty to first degree murder. The most that can be made of Osborn is that counsel for the defendant and for the state entertained the same thought — that some favor might be gained from the sentencing judge if he were not burdened with having to hear live witnesses regarding the commission of the crime.

A holding, said to be attributable to Osborn "that no formal sentencing hearing as provided in I.C. § 19-2516 had been requested" was not a holding, but was only a reason for purporting to justify what was the holding in Osborn that the use of a preliminary hearing transcript was not, under the circumstances there present, prejudicial error. Nevertheless, utilizing Osborn, the majority rules Stuart out of court:

Stuart's claim now, that he did not stipulate at the sentencing hearing for the use of preliminary hearing testimony, comes too late. Stuart should have raised the issue by petitioning for rehearing of our decision in Stuart I, the direct appeal. The trial court did not err in rejecting Stuart's post conviction claim on the issue of the use of preliminary hearing testimony at sentencing.

March 1990 Stuart II (emphasis added; footnote omitted).

The majority no longer insists that there was such a stipulation. That is understood. Instead the majority's author perforce switches to holding that Stuart forfeited that issue by not requesting a rehearing of the initial Stuart I opinion released on May 3, 1985:

Our holding in Stuart I that the parties had `stipulated' to the use of the preliminary hearing testimony in the sentencing proceeding was based upon the finding of the trial court in the December 1, 1982, sentencing hearing in which the trial court found, `Further, it was agreed and understood by both the state and the defendant that the court would rely upon, as part of the sentencing hearing, the testimony at the preliminary hearing and the trial.' There is nothing in the record to demonstrate that Stuart ever questioned the finding, either before the trial court by way of motion for reconsideration, or on appeal to this Court in Stuart I. After the issuance of our opinion in Stuart I in which we held, based upon the trial court's finding, that the parties had stipulated to the use of the preliminary hearing testimony in the sentencing proceeding, the defendant Stuart did not petition this Court for rehearing in order to question either the trial court's finding or this Court's holding that Stuart had stipulated to the use of the preliminary hearing testimony at the sentencing hearing.

March 1990 Stuart II n. 1 (emphasis added). Quaere, will this cause wonderment among the trial judges and the experienced practitioners of criminal law? First, it was initially declared that defense counsel had so stipulated, but when that thought was discarded, the claim became that Stuart should have moved for a rehearing on first seeing in the May 1985 opinion that he had so stipulated. This is manifestly unfair, because Chief Justice Bakes was the first Supreme Court Justice ever to write that Stuart's counsel had stipulated. First, Judge Schwam's misstatement had been accepted by Chief Justice Bakes at face value, with no showing of any resort to the court reporter's transcript. Second, the record is voluminous and somewhat convoluted, but it is not all that difficult to peruse. And third, why is it that the reader has been left with the inference from the majority opinion that Stuart did not petition for a rehearing, said to be the proper remedy? The answer is that Stuart did do so, and he raised the very issue Chief Justice Bakes later asserts should have been raised. ( See Appendix A.)

It now appears that the Court's March 1989 Stuart II opinion has been withdrawn in order to erase from sight the glaring untruth of the stipulation which never was. But withdrawing an opinion cannot strike or erase from memory the apparent, indifferent carelessness with which the opinion was written. This is not fun time, but serious business. While to some these thoughts may come across as being a bit on the strong side, one cannot help but stand wholly aghast at what would be happening here if Bistline, J., too, were gone from the appellate scene along with Justices Shepard, Donaldson, and Huntley.

Chief Justice Bakes has, by lot, inherited all of the Stuart appeals. It is disheartening to be placed in the position of telling an experienced and capable appellate justice that he should have had more regard for the record. By comparison, no practicing attorney handling criminal defenses could have done any more (at great personal and financial cost) than did Robert Kinney in his attempts at seeing that Stuart was at least dealt with fairly. Mr. Kinney attempted to get the Court concerned about Judge Schwam's misuse of the preliminary hearing testimony but was turned away empty handed. Continuing that same effort, Mr. Kinney in post-conviction relief proceedings presented to the district court the absolutely irrefutable assignment of error that Stuart had not, in person or by counsel, stipulated to the use of the preliminary hearing transcript. Again defense counsel was turned away. Judge Schilling read that Chief Justice Bakes, with three justices joining his opinion, had ruled in Stuart I that Stuart had so stipulated. Because of the doctrine of the law of the case, the district court was powerless to say otherwise, even though the fact of the matter was as plain to see as the proverbial nose on Dooley's face. Attached hereto as Appendix A is Part III of Mr. Kinney's brief supporting the petition for rehearing in Stuart I, which he did timely file. Appendix B is a true copy of my March 1989 opinion wherein an attempt was made to dissuade the other members of the Court from heaping as much or more error on Mr. Stuart than was visited upon him by the district court. It is in augmentation of my response to today's October 1990 opinion for the Court, and contains an analysis which is equally pertinent to this day's opinion for the Court. Attached as Appendix C is my dissent to this Court's March 1990 opinion. Attached as Appendix D are excerpts from the majority opinions of March 1989, March 1990, and October 1990, which have been removed from sight by the questionable expediency of withdrawing the entire opinions, and then reissuing the same as modified.

APPENDIX A

III

THE SENTENCING JUDGE IGNORED THE CLEAR MANDATE OF IDAHO CODE SECTION 19-2516 IN UTILIZING HEARSAY EVIDENCE AS A BASIS FOR IMPOSING THE DEATH PENALTY.

II

APPENDIX B

BISTLINE, J., specially concurring and dissenting. [The concurrence, Part I, was with the dissenting parts of the opinion authored by JOHNSON, J.]

PART II.

PART III.

PART IV.

CONCLUSION

APPENDIX C

BISTLINE, Justice, dissenting.

State v. Stuart Stuart I Stuart II

THE VARIANCE AND PROCEDURAL DEFAULT

FAILURE TO INSTRUCT AND EFFECT OF OBJECTION OR WITHDRAWAL

PROPORTIONALITY TOUCHED UPON

THE FACADE THAT THE DEFENDANT STIPULATED

APPENDIX D

BISTLINE, Justice, dissenting on Denial of Petition for Rehearing.

final 110 Idaho 163 715 P.2d 833 State v. Stuart 110 Idaho at 176 715 P.2d at 847 Stuart not was Use of Preliminary Hearing Testimony The trial court denied Stuart's claim of error in the use of preliminary hearing testimony at sentencing, specifically pointing out that in Stuart's original direct appeal to this Court, State v. Stuart, 110 Idaho 163, 176, 715 P.2d 833, 846 (1985), that this Court had held that `[i]t was stipulated at the sentencing hearing that when sentencing the defendant the court would consider evidence presented at the preliminary hearing State v. Osborn 104 Idaho 809 663 P.2d 1111 19-2516 State v. Coutts 101 Idaho 110 113 609 P.2d 642 645 19-2516 Stuart I. Stuart I Nor did Stuart file a petition for rehearing Stuart I State v. Stuart 110 Idaho at 176 715 P.2d at 846 State v. Osborn 102 Idaho 405 631 P.2d 187 19-2516 Stuart I Stuart II Osborn Coutts Use of Preliminary Testimony State v. Stuart 110 Idaho 163 715 P.2d 833 State v. Osborn 102 Idaho 405 631 P.2d 187 Osborn State v. Coutts 101 Idaho 110 113 609 P.2d 642 645 19-2516 19-2516 19-2516 State v. Osborn State v. Coutts 19-2516 Osborn Coutts Osborn both parties agreed to the use of the preliminary hearing transcript. Coutts Coutts Coutts 101 Idaho at 113 609 P.2d at 645 Coutts not Coutts Osborn The jury in this case found that such an intent was present 110 Idaho at 176 715 P.2d at 846 not It shall also be torture to inflict on a human being extreme and prolonged acts of brutality 110 Idaho at 187 715 P.2d at 857 18-4001 of an intent to cause suffering! All they needed to find was that Stuart inflicted extreme and prolonged acts of brutality. was not 18-114 18-115 110 Idaho at 196 716 P.2d at 866 i.e. Stuart I 110 Idaho 163 715 P.2d 833 State v. O'Neill 118 Idaho 244 796 P.2d 121