Appeal from the District Court of the Third Judicial District of the State of Idaho, Canyon County. The Honorable Gregory Culet, District Judge.
The opinion of the court was delivered by: J. Jones, Justice.
Stephen W. Kenyon, Clerk
SUBSTITUTE OPINION. THE COURT'S PRIOR OPINION
DATED JUNE 29, 2011
IS HEREBY WITHDRAWN
The district court's order, granting post-conviction relief, is affirmed.
The State of Idaho appeals the district court's order granting Trevor Booth's petition for post-conviction relief on the ground that Booth received ineffective assistance of counsel. We affirm.
I. Factual and Procedural Background
On January 16, 2005, Leonard Kellum died as a result of multiple gunshot wounds that he sustained at his residence. After an investigation, law enforcement suspected that Trevor Booth was responsible for the shooting. Law enforcement based this conclusion on several pieces of evidence obtained during the investigation. First, law enforcement determined that the perpetrator had entered Kellum's residence through the back door and shot him five times using an improvised silencer made out of a plastic soda bottle. Law enforcement found a single set of footprints leading from the back door of Kellum's residence to the street, where neighbors said a black pickup truck was parked at the time of the shooting. Booth, who owned a black pickup truck, told law enforcement that he had driven to Kellum's residence on the morning Kellum was shot to pick up marijuana that he planned to sell. Booth claimed he parked his pickup truck on the street and approached the front door of the residence where he heard screaming and gunshots. Booth told law enforcement that he left the residence after hearing the shots. However, before Kellum passed away, he was transported to the hospital where he identified Booth as the person who had shot him.
Booth was subsequently charged with first-degree murder, and was represented by Richard Harris. Although the crime of first-degree murder carries a potential penalty of death,*fn1 the State declined to file a notice of intent to seek the death penalty, thereby establishing that Booth's case was a non-capital case.*fn2 During the time the case was pending, Harris met with Booth periodically to discuss Booth's version of the events leading up to Kellum's death. Although Booth initially maintained that he did not commit the offense, he eventually acknowledged that he killed Kellum, but asserted he did so in order to defend himself and his family. Booth told Harris that he was actively involved in selling controlled substances and Kellum was his supplier. Booth explained that he eventually fell behind in paying Kellum for the drugs he had supplied, and Kellum began making threats of physical violence towards Booth, his family, and his girlfriend if he did not pay the money owed.
Prior to trial, Gearld Wolff, the prosecutor handling Booth's case, informed Harris that he intended to file a motion requesting that the Court provide a special verdict form to be used by the jury if Booth was convicted of first-degree murder. Specifically, the proposed verdict form would instruct the jury to determine whether certain statutory aggravating circumstances delineated in I.C. § 19-2515(9)*fn3 existed, including whether (1) the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity; (2) by the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life; or (3) the defendant, by prior conduct or conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society. Wolff communicated to Harris his understanding that pursuant to I.C. § 18-4004, the statute dealing with the penalties for first-degree murder, the State could seek an instruction regarding statutory aggravating circumstances even in a non-capital case. I.C. § 18-4004*fn4 provides,
Subject to the provisions of sections 19-2515 and 19-2515A, Idaho Code, every person guilty of murder of the first degree shall be punished by death or by imprisonment for life, provided that a sentence of death shall not be imposed unless the prosecuting attorney filed written notice of intent to seek the death penalty as required under the provisions of section 18-4004A, Idaho Code, and provided further that whenever the death penalty is not imposed the court shall impose a sentence. If a jury, or the court if a jury is waived, finds a statutory aggravating circumstance beyond a reasonable doubt but finds that the imposition of the death penalty would be unjust, the court shall impose a fixed life sentence. If a jury, or the court if a jury is waived, does not find a statutory aggravating circumstance beyond a reasonable doubt or if the death penalty is not sought, the court shall impose a life sentence with a minimum period of confinement of not less than ten (10) years during which period of confinement the offender shall not be eligible for parole or discharge or credit or reduction of sentence for good conduct, except for meritorious service. Every person guilty of murder of the second degree is punishable by imprisonment not less than ten (10) years and the imprisonment may extend to life.
Wolff interpreted this statute to mean that if the jury were to find any statutory aggravating circumstances in a non-capital case, the court would then be required to impose a fixed life sentence.
After examining the statute, Harris agreed with Wolff's interpretation and believed Booth would be subject to a fixed life sentence if the jury were to find, beyond a reasonable doubt, that a statutory aggravating circumstance existed. Harris and Wolff subsequently met with the district court judge prior to the scheduled pretrial conference to discuss the State's intent to request the special verdict form. During this meeting, the parties discussed Wolff and Harris's mutual understanding of I.C. § 18-4004. The judge informed Wolff and Harris that the court would likely use the special verdict form if it was requested by the State and supported by the evidence.
Thereafter, Harris prepared a memorandum to Booth outlining his understanding of the potential penalties if Booth were to be convicted by a jury of first-degree murder. In the memorandum, Harris set forth the text of I.C. § 18-4004 and explained that,
What this statute means is that upon a conviction for first degree murder, if the jury or judge if [a] jury is waived, finds a statutory aggravating circumstance beyond a reasonable doubt[,] the sentence is death. However, if the prosecutor does not seek death, as is the case here, and if a statutory aggravating circumstance is found, then the sentence is a fixed life sentence. That means the person sentenced will spend his life in prison and will die there. At the pre-trial conference on Friday the Judge indicated to the prosecutor and myself that he will submit a verdict form to the jury that will ask the question of the jury: "Did Trevor Booth commit the crime of first degree murder? Yes or No." The verdict form will also contain the same question for second degree murder and for manslaughter. If the jury finds you guilty of first degree murder, the verdict form will contain the further question for the jury: "do you find beyond a reasonable doubt a statutory aggravating circumstance? Yes or No." Since the trial judge intends to submit the question to the jury as part of the verdict form and if the jury finds a statutory aggravating circumstance as part of the verdict, then the sentence to be imposed by the judge, notwithstanding all the evidence there is in mitigation, [is] a fixed life sentence which means you will spend the rest of your life in prison.
The memorandum goes on to explain what statutory aggravating circumstances the State intended to prove. Harris mentioned that in his experience, "it is not too difficult for a finding to be made that a murder is heinous (a murder by definition is considered heinous) atrocious or cruel or alternatively that by committing the murder, the defendant showed utter disregard for life." Harris also described, in detail, all of the State's evidence against Booth, and explained "based upon the evidence as currently presented, I believe the high probability is that the jury is going to return a verdict of guilty." Finally, Harris advised Booth that his best option was to consider entering into a plea agreement with the State.
The bottom line is this. If you go to jury trial, there is the very strong probability of facing a fixed life sentence. That means spending the rest of your life in prison. If you enter a plea to murder with the prosecutor waiving aggravated circumstances, or not requesting the court consider aggravated circumstances, then you would face a minimum period of incarceration of ten years or whatever greater period the judge might impose. I have indicated above I do not think the Judge would impose a term greater tha[n] fifteen years followed by an indeterminate life. Life in that context means thirty years. My recommendation is because of the strong risk of spending the rest of your life in prison, a plea agreement may be your best option.
After giving the memorandum to Booth, Harris met with Booth's family members to explain and discuss the memorandum. Harris discussed with Booth's family the nuances of the statutory aggravating circumstances and the risks associated with taking the case to trial. During this time, ...