On November 4, 1974, two men who had picked up a pair of hitchhikers on U.S. 95 north of Grangeville were shot dead at a wide place on State Highway 55 near Donnelly, in Valley County, Idaho. The Information filed a month later named them: Edward Thomas Arnold, struck in the head by one bullet, and John Wayne Bradford, struck by three, both from a High Standard .22 automatic pistol, serial number 366934. It named the man accused of firing it as Thomas Eugene Creech, also known as Tom Turner, Joe Carl Adams and Richard Dennis Jr. What follows is the record of what the State of Idaho then did about it, from the plea in January 1975 to the pronouncement of sentence in March 1976, as certified to the Idaho Supreme Court on appeal.
It is the largest single primary record in this archive, and it is not a summary of anything. John W. Gambee, the official court reporter, took down every word spoken in open court and certified some 3,140 pages of it; the clerk of the district court added two volumes of filings, orders, verdict forms and psychiatric reports; and both sides' appellate briefs make up the fourteenth volume. The trial itself was tried twice over, in a sense. A jury was picked in Cascade in May 1975 and discharged three days later when Judge J. Ray Durtschi concluded, after reading Irvin v. Dowd into the record at length, that ten of the twelve had read newspaper accounts of bodies in other states and that any conviction would be reversed. Venue went to Wallace, in Shoshone County, and the case was tried there over three weeks in October.
The pivotal moments are printed below in the reporter's words, and they are almost all the judge's. He denies the motion to suppress Creech's November 8, 1974 statement to police, finding that a man who could recite the events in it so lucidly was not, as he claimed, strung out when he gave it. He sustains the defense objection to a second statement taken on April 28, 1975, by a California detective and an Idaho sheriff, because when the questioning turned from California to Idaho nobody re-advised the prisoner of his rights or told him his Idaho lawyer could be present, and the words "I don't care" were not a waiver. He polls the jury one name at a time on each count because of "the nature of this case." And on March 25, 1976, having recited the whole procedural history from memory, he pronounces the sentence the statute then made mandatory: death on each count, to be carried out May 21, 1976.
Two things about what the record shows, and one thing about what it does not. The State's theory, in Robert Remaklus's opening, was cold-blooded murder proved by three successive admissions, the last of them made after Creech survived a plane crash. The defense theory, in Bruce Robinson's opening, was stranger and is quoted here exactly as counsel put it to the jury: that his client's own testimony would show a man who, after a long life of crime, "appointed himself both judge and jury and executioner against dopers and dope pushers and forcible rapists." That was the defense lawyer's framing of testimony his client was about to give, and it should be read as advocacy, not as a finding. What the record does not show is anything after March 1976. The sentence pronounced here was not the end of the case, and the later history belongs to the bio, not to this document.
This is the record on appeal in Idaho Supreme Court docket 12224, and it is a public record twice over: the proceedings of a state district court and the filings in a state appellate court. It was scanned by a private researcher who deposited fourteen PDFs, 1,166 megabytes in all, in the Internet Archive as item ThomasCreech_Idaho_appeal_1976. That depositor is a copy host and not a custodian; certified copies come from the Clerk of the Idaho Supreme Court under docket 12224 or from the District Court of the First Judicial District under Cr. No. 2165. Nothing here needed anyone's permission to print.
Thomas Eugene Creech is alive, and that governs how this page is written. Every statement of fact on it comes from the record itself and is attributed to the page it comes from, and where the record records an argument, the page calls it an argument. The prosecutor's opening is the prosecutor's; the defense opening is the defense's; the psychiatrists' opinions are the psychiatrists'. The convictions and the sentence are the court's, and they are in the court's own words below. Anything about what has happened to Creech since March 1976 is not in this record and is not asserted here.
About seven thousand words are printed out of 1.2 million, and the choice was made on one principle: print the moments where the court acted, and describe the rest. So the page carries the arraignment and plea, the ruling that ended the Cascade trial, the two rulings on Creech's statements to police, both opening statements, the return of the verdict, the pronouncement of judgment, and from the clerk's record the two verdict forms and the Judgment of Conviction. It does not carry the roughly 1,200 pages of jury selection, the testimony of the thirty-odd trial and rebuttal witnesses, Creech's own testimony at the suppression hearing and at trial, the closing arguments, the jury instructions or the briefs. All of that is described in the last section so a reader knows it exists and where it sits.
The transcript pages here are OCR text from a 195-dot-per-inch grayscale scan, and the two-engine check on five pages of Volume 8 agreed on 73.6 percent of words. That is a good figure for typed transcript and a poor one for a clerk's record of carbon copies, which is why the clerk's documents below were read by eye from the page image rather than passed through the same machinery. Three mechanical things were done to the transcript passages and nothing else: the reporter's line numbers, which print 1 to 25 down the left of every page and land inside sentences, were stripped; the page footers naming the reporter and his Boise address were stripped, several by hand where the scan had welded them into a sentence; and where the extraction had moved a space one letter to the left or right, so that "t he" or "oft he" appeared, the boundary was moved back when exactly one placement made two dictionary words. We did not run the spelling repairer on this document. It was tried, and on a clean transcript it did more harm than good: the word "pushers" in the defense opening, which is correct, came back as "pushes" because "pushers" is not in our dictionary. Residual damage of the kind the repairer would have addressed is therefore still visible, "verdi ct" for verdict and "wi th" for with among them, and has been left rather than guessed at.
The reporter's own warning applies to the transcript as a whole and is worth repeating. His question and answer markers, "Q." and "A.", are frequently destroyed by the scan and appear as stray punctuation. In the passages printed here the speakers are the judge and counsel and the labels survived, but a reader who goes to the full transcript should not count questions from this text. The reporter also certified that pages 3061 to 3070 were taken by a second reporter, Harry Englund, and pages 4 to 13, the initial arraignment before Judge Hagan on December 4, 1974, by a third, Michelle Bartlett.
In the two verdict forms and the Judgment of Conviction, taken from Clerk's Record Volume 13, scan damage of the kind "S'l'ATE" for STATE and "~1urder" for Murder has been corrected by eye against the page image, and the handwritten date and foreman's signature on the forms are given as the clerk's minutes record them. Nothing else in those documents has been changed.
The Information was filed in the District Court of the Fourth Judicial District, in and for the County of Valley, by Robert H. Remaklus, Prosecuting Attorney, on December 4, 1974. It recites that Creech was brought before a magistrate on November 12, 1974, waived preliminary examination and was held to answer. Count I charges that on or about November 4, 1974, in Valley County, he did willfully, unlawfully, deliberately, with premeditation and malice aforethought, kill and murder Edward Thomas Arnold, a human being, by shooting him in the head with a High Standard .22 caliber automatic pistol bearing serial number 366934, from which mortal wound Arnold died the same day. Count II charges the same as to John Wayne Bradford, struck in the head by three bullets from the same pistol. Both counts cite Idaho Code sections 18-4001 and 18-4003. The Information lists forty-two witnesses known to the prosecutor, among them Sheriff Derold Lynskey, Carol, Kathy and Martha Spaulding, eight physicians, and an FBI agent named Ford in Washington, D.C.
BOISE, IDAHO, WEDNESDAY, JANUARY 8, l975, 10:00 A. M.
THE COURT: We 'll take up the case of State versus Creech, Valley County Case No. 2165. The record int he case shows that the defendant was part ially arraigned before JUDGE Hagan on December 4th in Valley County and the matter was continued for entry ofa plea to this date at the request of the defendant. I wonder -- under stand Counsel are prepared to stipulate that the arraignme nt and the plea.s could be done here in Ada County; is that agreeable?.MR. REMAKLUS: That's agreeable with the State, Your Honor.
MR. HOWER: Yes, we will so sti pulate.
THE COURT: Is that agreeable withy ou, Mr. Creech? You understand you could be arraigned in Val ley County and, actua lly, the time would have been 2:00 thi s afternoon. Are you willing to bea rra ign ed and enter your pleas here in Ada County?
MR. CREECH: It's all right.
THE COURT: I take it you don ' t object to having it at this time rather than 2:00 this afternoon?
MR. CREECH: No.
MR. HOWER: If the Court p lease, the order, asl recall, li)IH, Lel.abe 8ll0S was for 3:30 this afternoon.
THE COURT: 3:30?
MR. REMAKLUS: Yes, it shows on the minute en try.
THE COURT: All right, the matter was continued to this time for entry ofp leas tot wo count sof theI nformation. Are you pre pared to enter you rp lea at this time?
MR. HOWER: Yes, we are, Your Honor.
THE COURT: I'll ask the defendant to stand, please. I will ask you how yo up lead to Count I, Mr. Creech.
MR. CREECH: Pardon?
THE COURT: How you plead to Count I.
MR. CREECH: Not gui lty.
THE COURT: Enter ap lea of not gui lty to count I. I ask you how you plead to Count II.
MR. CREECH: Not gui lty.
THE COURT: You may be seat ed. All right. Prior to determin in ga date for trial oft his case, I'm wonder ing about the examinat ion that's been ordered. Now, there ' sno report in the fi le and I haven't recei ved one. Have you received one, Mr. Remaklus?
MR. REMAKLUS: No, Your Honor.
THE COURT:.Mr. Hower, have you received any report?
MR. HOWER: No, I haven't, Your Honor. I ran into the psychi atr ist on the ski slope abou ta week ago and he said he was -- he had just received some report from out of state and he indicated he thought he would be ready to report quite soon and would not take the en tire 60 days, but he has not reported.
THE COURT: I note in looking at your Notice of Intent ion tor ely on the defense of mental di sease or defect that yous tate only the defense excluding responsibi lity. I'm wondering if you feel some ques tion of fitness to proceed that may arise asa result of the report, Mr. Hower'?
MR. HOWER: The order \·1ill show, Your Honor, that the examin ing psychi atrist has been requested to commence ont his point and I have no motion on it until we have his report. My feeling is that at pr esent that this defense will not be offered, but there wi ll be no del ay on this account
THE COURT: So fara s you are concerned, it would be appropriate to go ahead and set it for tri al?
MR. HOWER: Yes, it is. I would like to inform the Court that if the defendant is tried, there wi ll, of course, be discovery proceedings and almost certain ly the motions to suppress evidence to bed i sposed of before trial. I don ' t propose to entert hese mot ions, or start these pr oceedings, until we have the determinat ion as to whethe~ the defendant is mentally responsible.
THE COURT: Howl ong do you anticipate it will take to try the case?
MR. REMAKLUS: We ll, I woul d think, Your Honor, that if we could -- if possi ble, set it to commence ona Tuesday and reserve the rest of the week, I 'm sure that would be adequate.
MR. HOWER: Yes.
THE COURT: You con cur, Mr. Hower?
MR. HOWER: Yes, I do, Your Honor.
THE COURT: How much time do you want to allow, Mr. Hower, for your preli min ary mot ions that you might cont empl ate before the trial setti ng? NR. HOWER: I wou ld think, Your Honor, that an in terva lin the orde r of 60 days mi ght wel lbe needed after the ps ychiat r ist's report.
MR. REMAKLUS: What does yo ur calendar look like for eit her Apr il 22nd or 29th, Your Honor, pr obably in there?
THE COURT: I can set cases anytime in April. What other date did yous ay?
MR. REMAKLUS: Well, I was looki ng at the 22nd or 29th of April.
MR. HOWER: My feel ing, Your Honor, is that that mi ght bea litt le early because the psychiatrist's report still has another 30 days, ass uming that he does not request any extensi on oft ime. That woul d bring us toe ar ly February and my sess ion, that woul d allow 60 days, would bring us i nto May, I gue ss.
MR. REMAKLUS: That's whe rel was look ing first. How about -- yout hink about the latter part of May?
MR. HOWER: Yes.
MR. REMAKLUS: That's where I was looking first, 27th -- or 20th or 27 th; al ong in there.
MR. HOWER: Um- hmm.
THE COURT: We ll, I will advise you, Mr. Creech, and inr eference to this trial set ting, theI n forma tion was fil ed in the last term of Court, September term. So, actually, under the Statute you hav ea right to be tried this term of Court; unless you waive that. In May we'll be in another term of Court which will, a ctually, go by the statutory period for trying this case. So, I would need to set it in April unless you are willing to wai ve your right toa speedy trial and go into May, Mr. Creech. In other words, IC ould give yo ua setting anytime in April if you wanted it, but, apparently Counsel feel that that might bea little early to take care of all the matters we need to take care of before the trial is actually had. You concur int hat?
MR. CREECH: I waive the right.
THE COURT: Okay. Is there a par ticular reason why you don ' t want tos tart ona Monday, Mr. Remaklus?
MR. REMAKLUS: Yeah, we generally have the weekend accumulation of some, you know, criminal matters on Mondays and this isa personal p reference, toge t that out of the way so we're not handli ng three or fo ur criminal matt ers and starting this one on the same day.
THE COURT: May 20th, is that an agreeab le date, then?
MR. HOWER: That is an agreeabl e date, Your Honor, 10:00 a.m.?
THE COURT: Ten o' clock and that wil lbe in Valley County and I'll set it for four days, then, the 20th through the 23rd. Now, I would like to seta deadline at this time for fil ing of preliminary motions so we don't run into any probl em.
MR. HOWER: I'm quite agreeable to that, Your Honor, excep tlr equest the Court set the deadline in terms of the decision by the Court as to whether the defendant will stand trial as the date from which deadlines are set. The psychiatrist's report, ofc ourse, may be subject to chal lenge and we don't know howl ong it might take to mak ea determination as to whether the def~ndant will stand trial. I see no point in getti ng invol ved in motions to suppress and discovery proceedings unless the d•e fendant is going to be tried. But, I' m quite agreeable toa cut-o ff date from the time of the Court's determination that the defendan t will be order ed to stand trial.
THE COURT: Of course, the only date I have to work from is the trial date and work backwards from that. The only thing I'm concerned about ish avi ng th ecu t-off date early enough before tria lt hat the mat ters ca.n all be concluded so Counsel know where they are going from the trial because, obvio usly
MR. HOWER: As the Court is aware, if we have as ituation where the psychi atr ist's report is chall enged, either by the Prosecutor or Defense Counsel, wil ld oubtless be vacating the trial setting because substantia l time that mi ght ber equired to resolve that i ssue. I'd be quite agreeable toa cut-off date which assumes that the psychiatrist's report will be time ly filed and will be accepted. But, if it isn't, we'll be in adi fferen tba ll game.
THE COURT: We ll, I know much of this is speculative. Asl say, I' mn ot fi xed on any particul ar date, all I want to do is allow Counsel enough time following the rul ings on preliminary motions so that the effect of those rulings can be handled by Counsel prior to trial. And, if you can dot hat in one week, as far as I'm concerned, I can set the cut-off date aw eek before. That might not allow you enough time. If you want, say, the latter part of Apr il, perhaps we could set the c ut-off date for fi li ng preliminary motions int hel atter part of April and then, actual ly, have the hearings on those motions
MR. REMAKLUS: On the May motion day? That's what I had in mi nd.
MR. HOWER: I'd be agreeable to that, Your Honor. MR. REMAI<LUS: Our motion day is going to be May 7th; isn ' tit?
THE COURT: Right, May 7th.
MR. REMAKLUS: We're getting ready for trials at that same time too. If we can cut it off April 30th, Your Honor --
THE COURT: Ist hat agreeable, Mr. Hower?
MR. HOWER: Yes, it is.
THE COURT: All right, April 30th time limit for fil ing all preliminary motions and, then, any heari ngs on those mo tions will be held on May 7th at the regular motion calendar in Valley County. I take it there's no problem about the place of custody of the defendant? He may be remanded to the custody of the Ada County Sheriff, is th atr ight?
MR. REMAKLUS: Yes.
MR. HOWER: Yes, sir.
THE COURT: All right, Mr. Creech, then, the case has been set for jury trial to commence on May 20 th at 10:00 and you will be remanded to the custody of the Ada County Sheriff until that date, or further order of the Court.
MR. REMAKLUS: Thank you, Your Honor.
THE COURT: We wi ll be in recess.
(Whereupon the matter was conti nued.)
The Court, ruling on the defense motion for change of venue after two days of jury selection in Valley County. The passage opens in the middle of the judge's reading from the United States Supreme Court's opinion in Irvin v. Dowd.
standard; but so you expect that jurors will have read about the charge and perhaps the all egations of facts surrounding the particular crime that the defendant is charged with but the area that creates problems is where you start talking about the defendant's past record oro ther alleged crimes that aren ot connected with the crime of whi ch he ' sc harged and those matters are widely circulated and widely publicized and come tot he attention oft he jury." That wast het ype ofi ssue that was being dealt with in Irwin versus Dowd and, so, Justice Clark went on to point out that ''The adoption of such ar ule, however, cannot fore clo se inquiry as to whether, ina given case, the application of that rule work sa deprivation of the prisoner' sli fe or li berty without due process. The test is whether the nature and statements oft he opinion formed are such as in law necessarily rai ses the presumption of parti ality. " Now, he poi nts out in that opi nion that in that case there was extensi ve examination oft he prospective jurors as to the pretr ial publicit y. He points out that even through examination by the tri al judge that each juror indicated that notwithstanding his opinion, he could render ani mpartial verdi ct. But, Justice Clark then says "But as Chief Justice Hughes observed, 'Imparti ality is nota technical concession, it isa state of mind for the ascertainment of tru th. The Constitution lays down no particular tests. ' "Here the pattern of deep and bitter prejudice shown to be present throughout the community was clearly reflected in the sum total of the voir dire examination ofa majority of the jurors finally placed in the jury box. Eight out of the 12 thought petit ioner was guilty. With such an opinion p ermeating their minds, it would bed i fficult to say that each could exclude this preconcepti on of guilt from his deliberations. The infl uence that lurk sin an opinion once formed is so persistent that it unconscious ly fights detachment from the mental processes of the average man. Where one's life is at stake and accounting for the frailties of human nature, we can only say that in the li ght of the circumstances here the finding of impartiality does not meet Constitutional standards. Two- thirds oft he jurors had an opinion that petitioner was guilty and were famili ar wi th the material facts and circumstances involved, including the fact that other murders were attributed to him, some going so far as to say that it would take evidence to overcome thei r belief. One said that he 'could not give the defendant the benefit of the doubt that he is innocent. ' Another stated that he hada ' somewhat ' certain fixed opinion as to petitioner's guilt. No doubt each juror was sincere when he said that he would be fair and impartial to petitioner but the psychological impact requiring such a declaration before one ' sfe llows iso ften its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given li ttle wei ght. " Well, in any case, that conviction was reversed for those reasons and I've come to the conclusion, after serious consideration of the l~w and the examination of the prospective jurors here, that if this case were tried anda conviction were had that thi s case would be reversed on appeal because of what the record shows at this time from the voir dire examination of the jurors. We have, on the present panel, one juror who stated, and did not retract that statement, that that juror didn ' t think that he or she could judge the case fairly. We have another juror that had very strong i mpressions that the defendant had committed crimes in others tates that's on the panel. Thr ee additional jurors were not sure, but they thought they could set aside the knowledge and information they had about other crimes and the information about bodies in other states. Ten of the 12 admitted that they had read about the other crimes and stories about bodies in other states. Now, I'm personally convi nced from the extended examination that there are very outstanding jurors on this panel and conscientious jurors that - ·- I intend nothing that I say or any ruling that I make to reflect on the ir integrity because I think their very integrity and very honesty has placed us in the dilemma that we're now in. If those jurors hadn't been as honest as they were and as forthright as they were we wouldn ' t have the dilemma; we would simply have 1 2 jurors sitting here that would say they hadn' t heard anything about the case and had completely open minds. But, we simply don't have that. I wouldn't be concerned if we had 1 2 jurors here, every one of whom had heard facts about this case, even facts that were admissible in evi dence that were very damaging to the defendant. The thing that makes this so prejudi cial and so diffi cult to believe the jurors could really remove this from their minds are the matters, that under no circumstances, could be admitted in this trial and come before that jury properly because these are matters that those jurors have read that would not oe admissible in this trial, under any circumstances, as admissible evidence. For that reason I'm going to grant the Motion for Change of Venue. I want to make this clear to you, Mr. Creech, in viewing this and I want it understood for the record and I' ll give yo ua chance to say anything you want before we foreclose this issue. I'll hear anything you have to say on the matter.
Creech had testified at this hearing in support of his own motion, transcript pages 711 to 742, followed by officers Menzik, Freeman, Maxwell and Woodall for the State. The Court's ruling follows the closing arguments.
However, I wil l leave it open if, in the devel opment of the trial and at such time that this is offered, I, of course, don't know that it wil lbe offered, but if ats uch time as iti s offered in evidence, if it then appeara th~t, for some reason these prejudici al statement!i are admissible, then I would rule on it at th~t time. But, I want the same admonition on this ruling that I made in the Motions In Limine; that I don't want anybody to make any statement in openi ng statements or other wis; about this prejudicial matter until I've ruled on it in the trial, in the presence of the jury. I mean, I don't want -- right now I would sti ll state the same observation, tha.t I don't see the relevancy or what slight rel eva, nce there is as far as weight by the prejudicia l effects of these and my inclination is tol et the statement in with those parts excised, or stricken from the statement. As far as the other parts of the motion, it has two pro~gs; first the way the statement was taken and recorded by the officers, I think that simply goes to the weight of the statement and not toi ts legal ity or admis sibility and I would deny the Motion to Suppress on that ground. As far as the effect of the -- excuse me, th ed efendanL ' sme ntal condition as far as his ability to comprehend ther ghtss that were adequately explained to him, I would find, and his ability to appreciate what he was stating to the officers, it seems to me, weighing all the evidence and looking at the statemen tit self, the contents oft he statement and weighing that in the light of the officers ' descripti on of how it was recorded and taken, I must find that itis volunt ary and that Mr. Creech was able to comprehend at the time he gave this statement. The nature of the rights that was _given and also to what he was doing when he made the statement just seems to _me that his memory of events that are rel ated in the statement and his lucid recital of those simply by i tself almost controverts his claim that he was compl etely strung out, or freaked out when he gave this. so, I1m going to deny the Mot ion to Suppress ont hat ground and make afi ndi ng that it is voluntary; that he was adequa tely warned of his rights and that he understood tho seri ghts and the· statement was voluntary. The question about the accuracy of thes tatement in the recordi ng of it, it seems to me are simply matters to go to the weight to be judged by the trier of the facts and not matters that rend erin admi ssible or illegal or involuntary. So, some way we' ll have to get some findings and conclusions on this enter ed for the record.
MR. REMAKLUS: Yes, Your Honor, we shall. MR. ROBINSON; Your Honor, Ild like to have some matters taken up and, perhaps, if ue ca.n do that we can dispense witha Clerk tomorrow when we hav ea pretria l conference.
THE COURT: Be seated. Mrs. Honeycutt, if you will stand, please then, and be sworn.
(Whereupon the alternate juror was sworn.)
THE COURT: Be seated. Counsel may make their opening statement at this time and, Mr. Remaklus, you may proceed.
MR. REMAKLUS: If it please the Court, Mr. Robinson, ladies and gentlemen of the jury: I shall briefly outline for you what the State expects to prove beyond ar easonable doubt. The State will prove beyond ar easonable doubt that in the early morning hours of November 4, 1974, the defendant, Thomas Eugene Creech, in cold blood, with premeditation and malice did shoot and murder Tom Arnold and Wayne Bradford ata wide place in the road along State Highway No. 55 near Donnelly in Valley County, Idaho. The State will provide a road map so-to- speak, for you to foll ow in the chain of events with which we're involved in this trial. Our map will begin at Lewiston, Idaho on the north where the defendant, with Carol Spaul ding, were staying with Carol Spaulqing's mother. The evidence will show that Tom Creech stole a pistol from the home of Carol Spaulding's mother and that that is the weapon with which he killed Tom Arnold and Wayne Bradford. We will take the defendant and Carol Spaulding south on State Highway No. 95 to where they were picked up as hitchhikers by Tom Arnold and Wayne Bradford. That wa sa long near the highway inter change on State Highwa.y 95, Federal Highway 95 on the Clearwater River. We will trace their -- we will show that at that point they were picked up in an old, greenish- blue and white Buick with Colorado license p l ates. We can trace their course oft heir travels on south to Grangeville where they attempted to sell a battery charger, when they stopped to get gas, to sell a battery charger for some gas and beer money. We'll proceed on south along the Salmon River near Slate Creek, we will continue on south to New Meadows where State Highway 55 runs into the Highway 95; they turned off of and onto the State Hi ghway 55 at New Meadows, drove through McCall to Donnelly where the murders were committed by this man. We will follow their activities on past the scene of the crime to where they spent the rest of that night near Cougar Mountain Lodge, south of Cascade, Idaho, where they ran the car out of gas to keep warm, it was cold and where the car was abandoned. We will follow their travels then on south throug hl, 59 7 OPENING STATEMENT State will prove that the killings we re intentional, premeditated and with malice. We will show where the defendant admitted the killi ngs shortly after arrest; clai ming that he was protecting Carol Spaulding. Next we will show an admi ssion of these offenses where he claimed that he was protecting himself and fi nal ly, ladies and gent lemen, we will present an admissi on that this man, aft era close call with death hi mself asa result of ap lane crash, admitted that, wi thout cause or provocation, he killed Tom Arnold and Wayne Bradford in cold blood.
THE COURT: At this time we'll have the Clerk read theI nformation to the jury and state the plea oft he defendant that's been entered here to thet nformat ion.
(Informat ion read by the Clerk.)
THE COURT: I wil lad vise the members of the jury that the defendant has entered pleas of not guilty to each count of the Information. Call your fir st witness.
MR. REMAKLUS: May we hav ea very brief recess to transport our Exhibits to the courtroom? They are sti ll locked up, Your Honor.
THE COURT: All r ight. MR. ROBI NSON: Your Honor, just before the recess I would like the record to show that I reserve my opening statement until my case.
Ruling on the defense objection to a statement taken from Creech in custody by a California detective, Dykes, and the Valley County sheriff, while he was represented by counsel in Idaho.
an agreement with de£ense counsel himself. But, the agreement was that he would not talk to Mr. Creech about theI daho cases and that the attorney did not w~nt him to talk to him about the Idaho cases. Now, I think to me thi.s ha sa material beari ng on the kind of advice that has to begi ven when you are going to get Mr. Creech to waive that right and I think it has -- it can• be left equivocal oraa mbiguous in any way. Now, I appreciate there wa sa rather clear-cut explanation of the rights given at the. beginning of this April 28th intervi ew by. the investigative detective from California, Mr. Dykes. However, that dealt with the inci dents in Califo; r: nia and not wi th the. Idaho incidents. When the switch-over came to talk about the Idaho incidents there was jus ta -- simply reference back to those rights. There was no representation of them, no emphasis of his right to have his Idaho attorney present and, then, I don ' t find this statement "I don't care 11 tha.t equivocal and clear-cut a. waiver that I think Miranda requires. I think that's ambiguous. I would interpret that a.s mea.ning h.e 'ddo whatever the Sheriff wanted him to do, really. I' m going to sustain the obj ection that -- on the finding that he was not adequately advised of his rights then att hat time when the Idaho cases were starti ng to be -- he was starting to be questioned about th¢ Idaho cases. He was not adequateiy advised of his rights and did not affirrnarively waive those rights to counsel at that point. I ' m going to do this with it and I would SQy this cUJOUt the authority on this: I accept, basically, Mr. Thomas ' statement that the majority rule is that the fact that a defendant is represented by counsel at the time he's questioned does not, pers e, render those questions inadmissibl e. I think there isn't any questi on that's. the majority rule. I would also note, though, just in passing that there were substantial dissent sin several of those cases and that there are cases that go the other way. There's at least one Circuit Court that's gone exactly the other way. New York has gone the other way. Those cases held that you simply can't talk to him once he has his own his attorney without having that attorney present, or having that attorney consent to be - - not to be present. I don ' t particularly adopt that rule, that ' snot the basis of my ruling, I want Counsel to understand that. I would go with the majority rule if there wa sa clear-cut advice of his rights in this case at the time the Idaho cases were starting to be questioned. I mean, the questioning turned to the Idaho cases. If there WqS a clear-cut advice of his right sri ght at that point anda clear- cut wai ver then I would accept the majority rule. But, I don't find that that exi sted. I would advise Counsel, for their own advice and how you want to handle this, I feel that under the very recent United States Supreme Court case of Oregon versus Hoss that this statement could be used for impeachment if the defendant takes the stand and gives contradicting tes timony. I'm not saying that by way of threats or compulsion, I ' m just advising Counsel of what I understand the law to be and,_ 7 the state of the law and at that point that would be my ruling; that this statement would be admissible for impeachment purposes under that Oregon case. That went to the United States Supreme Court, the Boss case; which is eit hera 1975 case or case.
MR. THOMAS: Your: Elanor?
THE COURT: Yes.?<lR. THOMAS: I take it you overruled our --
THE COURT: I've sustained Mr. Robinson ' so bjection at this point, yes. P.R. THOM.AS: For the record the State would object to the exclusion of this proffered evidence on the ground that no timely motion to suppress was made and that right to have the evidence excluded was waived.
THE COURT: Well, as far asl understand, that would preclude Mr. Robinson from trying to put on contradictory evidence, or controverting evi dence; which he hasn ' t even proffered here. I don ' t think the failure to mak ea motion to suppress waives the requirement that the foundati on would show
Robinson had reserved his opening until the State rested. What follows is counsel's statement of what he expected his client's testimony to show. It is advocacy and is printed as such.
Counsel ready to proceed, then? MR. ROBI NSON: Ready to proceed.
MR. REMAKLUS: State is ready, Your Honor.
THE COURT: Bring the jury in.
(Jury entered the courtroom.)
THE COURT: Lett he record show the jurors are all present.
MR. ROBINSON: May I proceed?
THE COURT: Mr. Robinson, you may make your opening statement to the jury at this time.
MR. ROBINSON: Judge Durtschi, Counsel, ladi es and gentlemen of the jury. First understand that in our jurisprudence and system of justice the defendant does not have to take the stand and I'm sure the Court will instruct you in this manner. We are going to present to you the defendant's testimony and his testimony is going to be much like the Prosecuti on told you they were going to follow through on the presentation of their case; that they were go ing to follo wa route from Lewiston, Idaho to Glenns Ferry, Idaho. Well, the defense is going to follo wa route, that route being the life of Thomas Eugene Creech; from the date of his birth through his youth and, more specifically, from the year in 1966 to November the 8th of 1974 and then his testimony regarding the facts and occurrences that took place after his incarceration and arrest to face these two charges. Along through the testimony I'm sure that you are going to find it complex, complicated. We will try our utmost to keep it as chronological in time as possible. There will be aspects of the testimony of Thomas Eugene Creech that will be shocking and I say this because, at this particular point, I don't believe that the State has proven Thomas Creech ta bea cold-blooded thrill killer. In the testimony that you will hear from him I hope that you don ' tg et this idea and turn away from the facts of the case. Tom's testimony would show that after his long engagement ina life of crime he himself turned, appointing himself both judge and jury and executioner against dopers and dope pushers and forcible rapists and eliminated them by killing, or wasting them. I ask that you keep your minds open throughout the defense in this case and listen to all of the testimony before maki ng up your mind as to guilt or innocence of these two deaths that Tom is charged with. Thank you, Your Honor. We're ready to proceed.
THE COURT: Call your first witness.
MR. ROBINSON: Call Thomas Eugene Creech. HNW, GA MBEE, C. S. R. 2,424 OPENING STATEMENT BY
The morning began with the Court examining the four bailiffs under oath about the sequestration of the jury: rooms 35 to 41 and 11 to 16 of the motel, televisions disconnected, telephones routed through the bailiffs' room, newspapers clipped before delivery, one juror taken to a dentist and one seen by a doctor, always with a bailiff present. The record then continues.
THE COURT: Counsel want to examine? MR, REMAKLUS: No, thank you.
MR. ROBINSON: Defense has nothing, Your Honor.
THE COURT: I want to express my personal appreci ati on, I knowl speak for Counsel, for your fine service asa Bailiff in this case. You may step down.
THE WITNESS: Thank you. MR, REMAKLUS: May I be heard for just one moment, Your Honor? On behalf of Mr. Thomas and myself we'd like the record to show our appreciation to the fine people of Shoshone County for the hospitality that has been extended to us and the fine service rendered by all law enforcement personnel and the c iti zens of this community.
THE COURT: Mr. Robinson?
MR. ROBINSON: Yes, Your Honor, \'1e want the record to reflect that the Defense join sin that. Thank you.
THE COURT: The Court does to. I feel we ' ve certainly had fine service from all the public offici als in this County. Counsel, I think the jury has advised the Bailiffs they do hav ea verdict. Are Counsel ready to proceed with that mat ter now?
MR. ROBINSON: Yes, Your Honor.
MR. REMAKLUS: Yes, Your Honor.
THE COURT: I want to make one observation just to the spectators. This is always a rather tense time ina trial \ •1 here the jury does return its verdict and I think t.here is some tendency far spectators, occasional ly, to show some emotion when aver di ct is presented. I want to warn yout hat I wi ll not tolerate any au di ble comments or dist urbance from the spectators. If there isa ny at all I'm going to clear the courtroom immediately. You can bring the jury in,
(Jury entered the courtroom.)
THE COURT: Counsel waive the roll call?
MR. REMAKLUS: Yes, Your Honor.
MR. ROBINSON: Defense does, Your Honor.
THE COURT: Let the record show that all of the regular jury panel are present att his time. Mr. Powell, I thought I saw you car rying some papers. Are you the foreman?
MR. POWELL: Yes, sir, I am.
THE COURT: Has the jury arrived ata verdict on both counts?
MR. POWELL: Yes, sir, WG have.
THE COURT: All right, if you 'dOuld hand the verdicts to the Bailiff, please. We're required by law, under the Statute of the State of Idaho, to determine that -- at this point, whether all of the jurors agree with the verdict that's been signed by the foreman under the instructions of the Court. The way we handle this, ordinarily, r.·1e would just have the Clerk read the verdi cts to the jur ya nd, then, ask the jurors if they agreed wit h the verdict and they co uld answer in unison. Because of the nature ofthis case, I ' m going to require the Clerk to poll you indivi duall yon each verdi ct. Wha.t the Clerk will do will read the verd ictin Count I, and theii, she ' ll call your individual names, go through you one ata time and, if you agree wi th the verdi ct say "Yes''. If there IS any of you that had any question about the verdict, didn ' t underst ani whi ch one the foreman was going to sign or that he was going to sign this one and -·- in other words, ify ou don ' t agree wi tht he ver dict sa yr, "No" ~, hen your name is cal led. Then, we ' ll repeat the same process wi th count II. If you would read the verdict as to Count I, l"ladam Clerk, and then, poll the jury.
(Whereupon the verdict as to Count I was read by the Clerk and jury polled individually as to Count I.)
THE COURT: It appearing that the verdi ct was unanimous, I'll direct the Clerk to record the verdi ct. Re·ad Count II, Madam Clerk.
(Whereupon the ver dict as to Count II was read by the Clerk and jury polled individually.)
THE COURT: IT appears to the Court that the verdict is unanimous. I 'll direct the Clerk to record the verdict as to Count II. This compl etes your service in the case, Jadies and gentlemen. I wish to express appreciati on to you for your service in the case. It's been, I know, nota pleasant service for you. It's been unp l easant, it ' sbe en trying under the circu mst ances of being sequ estered. But, we do appreciate your service int his case. Our whole jury system depends upon the citizens performing this duty that you've performed and upon their inte gri ty and I know of no servi cea citizen can perform that's a higher duty of citi zenshi p than to serve ona jury and I do express appreciation to you, each one, for your service and also to the alternate juror for her service int his case. You may be discharged at this time. Before proceeding, I' m going tol et the jurors leave~
(Jur y left the courtroom.)
THE COURT: Defendant is entitled, under statute, to take time before judgment is pronounced. Do you wi sh tot ake time before judgment is pronounced?
MR. ROBINSON: Yes, we do, and, in that regard, I would att his time request the Court that any further proceedings be had in Baise, Idaho and appeal tot he Court to cause an immediate transfer of Thomas Eugene Creech to the Ada County
In the District Court of the First Judicial District of the State of Idaho, in and for the County of Shoshone. The State of Idaho, Plaintiff, vs. Thomas Eugene Creech, Defendant. Case No. Cr. 9701. VERDICT, COUNT I. We, the Jury in the above-entitled matter, find the defendant, Thomas Eugene Creech, Guilty of Murder in the First Degree. Dated this 22 day of October, 1975. Robert Powell, Foreman.
In the District Court of the First Judicial District of the State of Idaho, in and for the County of Shoshone. The State of Idaho, Plaintiff, vs. Thomas Eugene Creech, Defendant. Case No. Cr. 9701. VERDICT, COUNT II. We, the Jury in the above-entitled matter, find the defendant, Thomas Eugene Creech, Guilty of Murder in the First Degree. Dated this 22 day of October, 1975. Robert Powell, Foreman.
Earlier the same morning the Court had heard Dr. Carl Humiston and Dr. Michael Estess on cross-examination about their court-ordered evaluations, found that the defendant had capacity to understand the proceedings, and denied his handwritten pro se motion for a new trial without prejudice to renewing it within the two-year limit of Rule 33. The record then continues.
confronted withi nth is case is that since there is two years wi thin which to fil e such am otion the rule contemplates that an appeal mi ght be pending int he meantime before that moti on is presented. Ther ule provides that if an appeal is pending the Court may grant the motion only on remand of the case. Now, asl understand the record in this case there are pendi ng appeals already from the deni al of your attorney's motion for new trial anda lso for the mot ion for setting aside the verd ic ta nd judgment of acquittal. With those appeals pending at this time I couldh 1 tg rant the motion anyway until are mand of the case on that appeal, if iti sr emanded. So, at this time I'm going to deny the motion, prose mo ti on that Mr. Creech has made without prejudi ce to renew if you want to within thetwo yearr time li mit, renew the moti on in a.n amp l ified form to meet the requirements of the rule and the statute. Anyt hing furt her to come before the Court before ~e proceed with pronouncement of judgment?
MR. ROBINSON: We have nothing.
THE COURT: State have anything?
MR. REMAKLUS: We have nothing, Your Honor.
THE COURT: I 'rn required, Mr. Creech, to review the record in this case pri or to pronouncing judgment. The record is somewhat lengthy but I' ll have to go through it. The record shows an Information was filed on December 4, 197 4 by the Prosecuting Attorney of Valley County charging you with two counts of murder in the first degree; the record shows you appeared on December 4, 1974 with your attorney for purposes of arraignment. At that time you were partially arraigned and the matter was continued for compl etion of arraignment and entry ofa plea. On January 8, 1975, which the case was continued to~ you appeared agai n with your a ttorney. At that time pleas ofl "Not Guilty" were entered to both Count I and Count II and the matt er was set for trial to commence on May 20, 1975. On the 20 th of May, 1975 the trial did commence. On May 21, 1975 a Motion fo: r Change of Venue was made. On May 22nd, 1975 that Motion for Change of Venue was granted. On June 18, 197 5 an order was entered pur suant to hearing we had on June 9th, changing counsel to represent you. At that time Mr. Robinson was substituted as counsel of record as your attorney. On July 10, 1975 an order was entered - - excuse me, on July 10, 1975 a hearing was had regarding change of venue and the place of change of venue and an order was entered on July 14, 1975 pursuant to that order and the venue was changed to Shoshone County. On August 1 4, 1975, pursuant to stipulati on, trial was set for October 6th, 1975 to begin in Shoshone County. Trial did commence on October 6, 1975. On October 22nd, 1975 the verdict of the jury was rendered, afi nding of guil ty of murder in the firs td egree as to both counts. I wi ll ask you at this time whether you have any legal cause to show why judgment should not now be pronounced and I will tell you in this regard, Mr. Creech, you hav ea right at thi sti me to make any statement that you want to. MR. ROBINSON: Your Honor, Mr. Creech advises me he does not desire to make any statement at this time and, for the record, I have no further legal reason ta put before the Court to prevent the sentenc ing and judgment being announced in this case.
THE COURT: All right. No legal cause being shown and none appearing why judgment should not be pronounced, it is the judgment of this Court that you have, havi ng been regularly char ged by an information of two counts of the crime of mur der in the first degree and jury finding you guilty as charged on both counts, now, therefore, it is ordered, adj udged and decreed that you, Thomas Eugene Creech, are gui lty of the crime of murder in the first degree under Count I and guilty of murder of the first degree under Count II of the Information; that as punishment therefor you shall suffer death of the manner provided by the Statute of the State of Idaho to be carried out on May 21, 1976. You are remanded to the custody of the Sheriff of Ada County, Idaho, to be delivered forthwith to the proper custody of the proper officers of the penitenti ary of the state ofl daho for execution of the sentence. We'll be inr ecess.
(Recess taken and matter concluded.)
In the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Valley. State of Idaho, Plaintiff, v. Thomas Eugene Creech, Defendant. Case No. 2165. JUDGMENT OF CONVICTION. The Prosecuting Attorney with the Defendant, Thomas Eugene Creech, and his counsel, Bruce Robinson, came into Court in Boise, Ada County, Idaho, on the 25th day of March, 1976. The Defendant was duly informed by the Court as follows: The Defendant was advised of the nature of the information filed against him for the crime of murder in the first degree on two counts committed on or about the 4th day of November, 1974; of his arraignment on December 4, 1974 and of the continuation thereof until January 8, 1975, for the entry of this plea; of his appearance with the Public Defender of Valley County, Idaho, as his attorney on the said 8th day of January, 1975, and his entry of a plea of "not guilty to two counts of murder in the first degree"; of the commencement of his trial at Cascade, Valley County, Idaho, on the 20th day of May, 1975, and of his Motion for Change of Venue on the 21st day of May, 1975, and of the Order of this Court made May 22, 1975, granting such Motion for Change of Venue; of the Order entered June 18, 1975, pursuant to hearing on June 4, 1975, granting his Motion for Change of Attorney and of his selection of Bruce Robinson as his attorney herein; of the hearing on July 10, 1975, for change of venue to Shoshone County and the entry of an Order therefore on the 14th day of July, 1975; of the hearing on August 14, 1975, pursuant to Stipulation, whereat the trial was set for October 6, 1975 in Shoshone County, Idaho; that such trial commenced October 6, 1975, and that on October 22, 1975, a verdict of guilty to two counts of murder in the first degree was returned; the Defendant was advised that every person found guilty of murder in the first degree shall suffer death.
The Defendant was then asked if he had any statement to make before sentence was pronounced to which he replied that he had none. The Defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him to which he replied that he had none. Thereupon the Court renders its judgment: That whereas the said Defendant, Thomas Eugene Creech, having been duly convicted in this Court of the crime of two counts of murder in the first degree, It is therefore ordered, adjudged and decreed that the said Defendant, Thomas Eugene Creech, is guilty of the crime of murder in the first degree upon two counts and as punishment therefore he shall upon each count suffer death in the manner provided by the statutes of the State of Idaho on the 21st day of May, 1976. The Defendant was then remanded to the custody of the Sheriff of the County of Ada, State of Idaho, to be delivered by him into the custody of the Director of the State Board of Corrections, State of Idaho, for execution of such sentence. DATED This 25th day of March, 1976.
Transcript Volumes 1 and 2, pages 1 to about 540, are the January 1975 arraignment, the Cascade proceedings of May 19 to 22, 1975, including the voir dire of some sixty Valley County prospective jurors by Remaklus and Ward Hower, then the public defender, the change-of-venue argument and the discharge of that jury, and the Boise hearings of May 30, June 9, June 30 and July 30 at which venue was fought over between Coeur d'Alene, Boise and Wallace. Volume 3 holds the September 1975 motion hearings and the October 3 suppression hearing, with Creech's own testimony under oath at pages 711 to 742 and the officers' testimony after it. Volumes 4 through 6, pages 863 to about 1595, are the Wallace jury selection, some seventy Shoshone County prospective jurors examined by the Court and both counsel.
Volumes 7 through 10, pages 1596 to about 2971, are the trial. The State called twenty-three witnesses, among them Johnny Hill, Ray Lynn Hull, Martin Maxwell, Steven Hager, Geraldine Fletcher, Richard Crum, Alvin Hodge, Burton Walker, Delbert Scott, Lorin Beals, Steven Rivers, Lester Kelly, John Stewart, Ann Bradley, Carol Marie Spaulding, William Sherman Hill, George Menzik, Jack Freeman, Weslie Woodall, William Schreiber, E. C. Palmer, Alvin Mason and Sheriff Derold Lynskey. The October 14 morning was taken up with Carol Spaulding's claim of immunity and the State's motion for an order compelling her to testify under a grant of it. The State rested on October 15; the defense opened on October 16 and called Creech, whose direct testimony begins at page 2425 and runs, with cross-examination, through October 17; the defense rested October 20, the State called seven rebuttal witnesses, and closing arguments were heard October 21. The exhibits include the entire tape-recorded Palmer-Creech conversation and an edited excerpt of it, letters from Creech to Palmer, Plowman and Hilby, a poem, his handwritten statement, the FBI laboratory's Q exhibits of both parties' clothing, and Dr. Estess's report, submitted by the Court.
Volume 11 holds the closing arguments, the return of the verdict, the jury instructions at pages 3025 to 3060, and the post-trial hearings in Boise of November 3, December 4, January 16, March 6 and March 25. At the last of these Dr. Estess testified that he had diagnosed Creech with a sociopathic personality disorder, that nothing in his January and February 1976 interviews changed that view, and that in his opinion Creech was neither psychotic nor neurotic and understood the proceedings. Clerk's Record Volumes 12 and 13 contain the Information, the motions and orders, the Valley County and Shoshone County minutes, a transcript of a recorded interview of Carol Spaulding by officers identified as Bob and Jim, her affidavit sworn in Washoe County, Nevada, the letters of Dr. Humiston and Dr. Estess to the judge, the verdict forms, the Judgment of Conviction and the notice of appeal. The Briefs volume, 452 pages, is the appellate argument of both sides, including the State's brief opposing the motion to set aside the verdict on the ground that Idaho's mandatory death penalty statute was unconstitutional under Furman v. Georgia.