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State of Idaho v. Kenneth Eugene Thurlow

July 6, 2011


Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. John P. Luster, District Judge. Judgment of conviction and fixed life sentence for first degree murder, affirmed.

The opinion of the court was delivered by: Perry, Judge Pro Tem

2011 Opinion No. 40

Stephen W. Kenyon, Clerk

Kenneth Eugene Thurlow appeals from his judgment of conviction and fixed life sentence for first degree murder. For the reasons set forth below, we affirm.


In August 2005, Thurlow and Christopher Lewers went to a junkyard armed with concealed shotguns and baseball bats. The victim, who was working on his vehicle near the junkyard's garage, was shot in the head with a shotgun at close range. Prior to the shooting, Thurlow approached a caretaker, who was working in the junkyard garage, and asked the caretaker if he had any muriatic acid. The caretaker left the garage and went to his residence on the junkyard property to look for the acid. When he was unsuccessful in locating the acid, the caretaker began to walk back to the garage to notify Thurlow. However, as he was leaving his residence, he noticed Thurlow approaching. Thurlow told the caretaker that the victim was dead and asked for help loading the body into a nearby truck. The caretaker walked back toward the garage and observed the victim's body lying on the ground and Lewers standing nearby. The caretaker informed Thurlow and Lewers that the truck was inoperable and, fearful for his life, fled the junkyard. After hiding out for several hours, the caretaker returned to the junkyard and called the police. During the caretaker's absence, Thurlow and Lewers stole several items from the victim's truck, left the victim's body behind, and sold the victim's possessions to an acquaintance later that night.

Thurlow was charged with first degree murder, and Lewers was charged with aiding and abetting. Thurlow was represented by one of the conflict public defenders for the county. Prior to trial, Thurlow filed a motion for appointment of co-counsel, which the district court denied. Thurlow went to trial and, at the conclusion of its case-in-chief, the state moved to amend the information to charge Thurlow in the alternative with first degree murder by aiding and abetting in the crime. The jury found Thurlow guilty of first degree murder. I.C. §§ 18-204, 18-4001, 18-4002, 18-4003(a), 18-4004.

The district court entered a judgment of conviction and imposed a fixed life sentence. The judgment of conviction contained two clauses indicating that Thurlow had waived his right to appeal during plea negotiations. The district court entered an amended judgment of conviction removing one of the erroneous waiver statements. A second amended judgment of conviction was then entered removing the other waiver clause. Thurlow appeals, arguing that the district court abused its discretion in denying his request for appointed co-counsel and in imposing an excessive sentence.


A. Timeliness

Thurlow's notice of appeal was not filed within forty-two days from his original judgment of conviction. Therefore, the state argues that this Court is without jurisdiction to entertain Thurlow's appeal.

Thurlow, presumably in anticipation of the state's jurisdictional argument, filed a motion with the Idaho Supreme Court seeking an order clarifying jurisdiction. At the Supreme Court's request, the state filed an answer. The Supreme Court entered an order maintaining jurisdiction of the appeal and indicating that the appeal would proceed on all issues. Therefore, we need not address the state's argument regarding the timeliness of Thurlow's notice of appeal.

B. Appointment of Co-counsel

Thurlow argues that the district court abused its discretion by refusing to grant his request for appointed co-counsel. Specifically, Thurlow contends the district court inappropriately focused on potential interference with the county's contracts for public defenders instead of examining the need for co-counsel. Although I.C.R. 44.3(2) governs the appointment of two attorneys in a capital case, the denial of a request for appointed co-counsel in a non-capital case is an issue of first impression in Idaho.

The Sixth Amendment does not require that more than one attorney be appointed for an indigent criminal defendant, unless the appointment of more than one attorney is necessary for the defendant to receive the effective assistance of counsel which is his or her right under that Amendment. Even in a capital case there is no blanket constitutional requirement of appointment of more than one attorney, although such a right may exist under the statutes of a particular jurisdiction. Generally, when an indigent defendant has been provided with an attorney at public expense, his or her request for additional counsel is committed to the trial court's discretion. Denial of a request for appointment of additional counsel is proper when the amount of preparation and ...

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