Appeal from the district court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. G. Richard Bevan, District Judge.
The opinion of the court was delivered by: W. Jones, Justice
SUBSTITUTE OPINION. THE COURT'S PRIOR OPINION DATED JULY 8, 2009, IS HEREBY WITHDRAWN
The conviction of Juan Carlos Fuentes Pina is vacated, and the case is remanded to the district court for a new trial.
Appellant Juan Carlos Fuentes-Pina (Pina) appeals from his conviction of first-degree felony murder following the shooting death of Jesse Naranjo by Johnny Shores. Pina raises three issues on appeal: 1) whether the district court erred in applying the proximate cause rather than the agency theory of felony murder, 2) whether the district court erred in instructing the jury that Pina could be convicted of felony murder if ―during the commission or attempted commission of the kidnapping, Jesse Naranjo was killed,‖ and 3) whether the district court erred in denying Pina's mid-trial motion to proceed pro se. Because we agree that the district court incorrectly applied Idaho's felony murder rule and incorrectly instructed the jury, we vacate Pina's conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 29, 2005, Jesse Naranjo (Naranjo) was shot by Johnny Shores (Shores) following a dispute between Naranjo and Pina. The argument between Pina and Naranjo first started outside of the house when Naranjo arrived. According to a witness, when Naranjo exited his car, the two men exchanged words before Pina put his hands in his pockets and followed Naranjo into the house, with Naranjo repeatedly looking back at Pina. The witness speculated Pina had a gun in his hand inside the pocket at this time. Once inside, Naranjo and Pina continued to argue and Pina motioned to the floor, making Naranjo get on his knees.
Shores and his girlfriend were asleep in a nearby room when they were awakened by the argument between Pina and Naranjo. When they opened the door to see what was happening they observed Pina standing in front of the kneeling Naranjo, holding a shotgun, and speaking in an angry tone. Shores walked around Naranjo and approached Pina. As the two spoke, Pina motioned at Naranjo and then at Shores' feet, after which Naranjo bent down and kissed Shores's foot. According to Shores, he ―[n]udged [Naranjo] and told him to get up,‖ and then told Pina to give him the gun. However, another witness testified that after Naranjo kissed Shores's feet, Shores ―kicked [Naranjo] in the face.‖ According to Shores, Pina responded to Shores' request for the gun by stating, ―No. F--- this fool.‖ Shores continued to encourage Pina to give him the gun and Pina finally relented.
As Pina handed the gun to Shores, Naranjo jumped off his knees and grabbed the gun. The three men wrestled for control and Shores ultimately seized the gun. Pina and Naranjo continued to fight. Naranjo ran to the back of the house and tried to get through the back door, but Pina slammed the door on him. Shores followed behind them and at some point fired the gun.
Shores later stated he was ―scared and panicked and didn't know what to do, and [he] just fired the gun.‖ He said he did not think he had intended to fire the gun: ―I don't know. I don't think-it's just like a reaction. I don't know. I was just scared. It just happened... I wasn't aiming.‖ He also said it was more of a ―warning shot.‖ Naranjo was shot on the left side of his abdomen and bled to death. Shores pled guilty to voluntary manslaughter for the death of Naranjo.
A grand jury indicted Pina on the charge of ―felony murder,‖ with the indictment alleging he was liable for Naranjo's death because he:
[D]id wilfully [sic], unlawfully, and deliberately kidnap Jesse Naranjo by seizing and/or confining Jesse Naranjo with intent to cause him without authority of law to be kept and/or detained against his will and that during the course of that kidnapping, Jesse Naranjo, a human being, was unlawfully killed, to-wit: Jesse Naranjo was shot in the abdomen with a shotgun, from which he died, in violation of Idaho Code Section 18-4001, 18-4003(d).
Upon completion of the presentation of the State's case-in-chief, counsel for Pina moved, pursuant to Idaho Criminal Rule 29, for dismissal. Counsel asserted that the State had failed to present a prima facie case of felony murder because it presented no evidence indicating that the death resulted from any type of common plan or design between Pina and Shores. The State objected but acknowledged, ―We don't assert that Mr. Shores was in on the plan, whatever there was, to kidnap, for whatever purposes, Mr. Naranjo at the time that Mr. Pina brought him into the house.‖ Instead, the State asserted, ―once Mr. Shores was activated, he was clearly not on the side of Jesse Naranjo. He was acting with Mr. Pina against Mr. Naranjo....‖
The district court denied the I.C.R. 29 motion, finding that ―any killing committed in the perpetration of or attempt to perpetrate a kidnapping is murder of the first degree. Now, the question for the jury is whether this killing did in fact occur during the perpetration or attempt to perpetrate the kidnapping.‖ The court then adopted a ―stream-of-events‖ theory of felony murder, finding that:
[T]he Idaho Code is very clear in that regard, and if the killing occurs, it does not, our statute does not require a killing to be by the person who initiated the kidnapping and indeed is silent as to that effect. I believe that silence leaves for this court to view this matter, not narrowly under the agency theory, but rather the decision for the jury [is] whether the stream of events is such that this defendant should be held liable for the felony murder of Mr. Naranjo.
Defense counsel renewed the I.C.R. 29 motion during its case-in-chief, and the court again denied it, applying the ―stream-of-events concept set forth previously and under the notion of felony murder in this case.‖
At the jury instruction conference on June 29, 2006, defense counsel again renewed argument on the issue of insufficient evidence of agency and requested that the jury be instructed that Shores and Pina must have acted in concert with one another for Pina to be found guilty of felony murder. The district court declined to give the requested instructions on agency and instead gave the following instruction:
In order for the defendant to be guilty of Felony Murder in the First Degree, the state must prove each of the following:
1. On or about November 29, 2005,
2. in the State of Idaho,
3. the defendant Juan Carlos Fuentes-Pina, A.K.A. Juan Pina, A.K.A. Juan Carlos Pina, kidnapped, or attempted to kidnap Jesse Naranjo, and
4. during the commission or attempted commission of the kidnapping, Jesse Naranjo was killed.
If any of the above has not been proven beyond a reasonable doubt, you must find the defendant not guilty. If each of the above has been proven beyond a reasonable doubt, then you must find the defendant guilty.
Based on this instruction, the jury returned a verdict of guilty of first degree felony murder. Pina timely filed his appeal from the Judgment of Conviction.
Pina argues that he was denied due process of law, as guaranteed by the Fourteenth Amendment of the United States Constitution, when he was convicted absent proof beyond a reasonable doubt of every fact necessary to constitute the crime of felony murder. In support of this proposition, he contends that Idaho follows the common-law rule of felony murder, which requires a finding that Pina was acting in concert with Shores or in furtherance of a common object or purpose at the time Shores killed Naranjo. Pina further asserts that the district court erred in giving jury instructions that allowed the jury to convict him of felony murder under a proximate-cause theory.
A. Idaho Applies the Agency Theory of the Felony Murder Rule.
Pina argues that he was wrongly convicted because the district court improperly applied the proximate cause rather than the agency*fn1 theory of felony murder. This issue requires us to interpret the statutory language of Idaho's felony murder rule, which is rooted in common law.
When interpreting a statute, this Court must strive to give force and effect to the legislature's intent in passing the statute. It must begin with the literal words of the statute; those words must be given their plain, usual, and ordinary meaning; and the statute must be construed as a whole. Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. When engaging in statutory construction, this Court has a duty to ascertain the legislative intent, and give effect to that intent. The Court must construe a statute as a whole, and consider all sections of applicable statutes together to determine the intent of the legislature. The Court also must take account of all other matters such as the reasonableness of the proposed interpretations and the policy behind the statute.
Wheeler v. Idaho Dept. of Health & Welfare, 147 Idaho 257, 263, 207 P.3d 988, 994 (2009) (internal citations and quotations omitted). Once the legislature has chosen to act in an area of the common law and codify a common law rule, adopting only a portion of a common law rule, it is to be presumed that the legislature limited its adoption for a reason. Elec. Wholesale Supply Co. v. Nielson, 136 Idaho 814, 825, 41 P.3d 242, 253 (2001); see also Ultrawall, Inc. v. Washington Mut. Bank, FSB, 135 Idaho 832, 836, 25 P.3d 855, 859 (2001) (―The Court must assume that when the statute was amended, the legislature had full knowledge of the existing judicial decisions and caselaw of the state.‖); Hook v. Horner, 95 Idaho 657, 661, 517 P.2d 554, 558 (1973) (―Rules of common law are in effect in Idaho only to the extent that they are not repugnant or inconsistent with legislative enactment.‖); State v. Mubita, 145 Idaho 925, 940, 188 P.3d 867, 882 (2008) (―Unless the result is palpably absurd, this Court assumes the legislature meant what is clearly stated in the statute.‖).
There has been much controversy and debate among legal scholars over the proper scope and application of the felony-murder rule.*fn2 In the United States, there are two theories of how the felony-murder rule applies to parties that did not actually kill the victim, including agency and proximate cause. Leonard Birdsong, The Felony Murder Doctrine Revisited: A Proposal for Calibrating Punishment that Reaffirms the Sanctity of Human Life of Co-Felons Who Are Victims, 33 OHIO N.U. L. REV. 497, 499 (2007). Under the agency theory, the felony-murder rule is only applied to actors who are acting in concert in furtherance of a common plan or scheme to commit the underlying felony and one of them causes the death during the perpetration of the felony, regardless of who actually fired the fatal shot.*fn3 Under the proximate-cause theory, each actor is held responsible for the death of a person caused during the perpetration of a felony if it was reasonably foreseeable that the acts committed might reasonably be expected to result in death.*fn4 Under some interpretations of the proximate-cause theory, a person involved in the perpetration of a felony can be held liable for a death even though the death was actually caused by a third person having nothing to do with the perpetration of the felony. See State v. Oimen, 516 N.W.2d 399, 404 (Wis. 1994) (upholding a conviction under the felony-murder rule when the intended victim of the underlying felony killed a co-felon); People v. Lowery, 687 N.E.2d 973, 976 (Ill. 1997) (applying a broad interpretation of the felony murder rule to uphold a conviction where the intended victim of the armed robbery resisted and accidentally killed an innocent bystander).
The felony-murder rule originally went unchallenged because when it was enacted practically all felonies were punishable by death. People v. Aaron, 299 N.W.2d 304, 310 (Mich. 1980). It was, therefore, ―of no particular moment whether the condemned was hanged for the initial felony or for the death accidentally resulting from the felony.‖ Id. at 310--11 (citing Commonwealth v. Redline, 137 A.2d 472, 476 (Pa. 1958)). Over the years, common law expanded to include within the felony-murder rule a second element that imputed responsibility for a homicide that occurred during the perpetration or attempt to perpetrate certain felonies to any person participating in the underlying felony. See THE HISTORY OF THE PLEAS OF THE CROWN, 1 Hale 443 (1736) (noting that as to the culpability of one person for another's felonious acts, ―the books in all the instances of this nature say, that it is murder or manslaughter in that party, that abetted him... and consented to the act.‖(emphasis added)); R. v. Bosworth, 99 Eng. Rep. 138--39 (1779) (holding that the felony murder rule is only properly applied where, at the instant the crime was committed, the charged perpetrators ―were all of the same party, and upon the same pursuit, and under the same engagement and expectation of mutual defense and support with those that did the [crime]‖); A TREATISE OF THE PLEAS OF THE CROWN, 1 East 255, 259 (1803) (―In order to make the killing, by any, murder in all of those who are confederated together for an unlawful purpose, merely on account of the unlawful act done or in contemplation, it must happen during the actual strife or endeavor, or at least within such a reasonable time afterwards as may leave it probable that no fresh provocation intervened.‖ (emphasis added)).*fn5
It was within this historical context that in 1864 the territorial legislature first codified what is now considered the Idaho felony-murder rule.*fn6 The statute stated in relevant part: ―All murder which shall... be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree....‖ Crime & Pun. § 17 (Idaho 1864). Since 1864, the legislature has amended the statute ten times, but the substance has remained relatively unchanged.*fn7 The current version was adopted in 2002 and it states: ―Any murder committed in the perpetration of, or attempt to perpetrate, aggravated battery on a child under twelve (12) years of age, arson, rape, robbery, burglary, kidnapping or ...