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STUART v. STATE

No. 21684.

914 P.2d 933 (1996)

128 Idaho 436

Gene Francis STUART, Petitioner-Appellant, v. STATE of Idaho, Respondent.

Supreme Court of Idaho, Boise, December 1995 Term.

Rehearing Denied April 24, 1996.

Attorney(s) appearing for the Case

Robert E. Kinney, Jr., Orofino, for appellant.

Alan G. Lance, Attorney General; Lynn E. Thomas, Deputy Attorney General, Boise, for respondent. Lynn E. Thomas argued.

JOHNSON, Justice.

This is a post-conviction proceeding in a death penalty case. We conclude that the trial court was correct in denying the petitioner's I.R.C.P. 60(b)(5) motion, which asserted that the Court's opinion in State v. Tribe, 123 Idaho 721, 852 P.2d 87 (1993) requires that the petitioner receive a new trial because the jury was not instructed on second degree murder by torture.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS

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