Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Darla S. Williamson, District Judge.
The opinion of the court was delivered by: Walters, Judge Pro Tem
Judgment of conviction for first degree murder, affirmed.
This is an appeal from a judgment of conviction for first degree murder. The appellant, Robroy Wall, Jr., contends that the district court committed reversible error by providing a substitute verdict form and accompanying instruction to the jury after the jury had begun its deliberations. We affirm.
I. FACTS AND PROCEDURAL BACKGROUND
The following background appears in the record. In May 2003, Zachariah Street was found dead in the desert south of Boise, in Ada County, Idaho. The death was caused by gunshot wounds to Street's head. The State charged Robroy Wall, Jr., Jason McDermott and Daniel Hosford with first degree murder and with conspiracy to commit first degree murder, and sought sentence enhancements for use of a firearm in the commission of a felony in regard to Street's death.
Daniel Hosford pled guilty to aiding and abetting second degree murder and testified at Wall's trial. He disclosed that he, McDermott, Wall, and Street were all members of the "La Familia" gang and that McDermott was in charge of the gang while Wall was second in command. Hosford testified that McDermott believed that Street had "ratted" on members of the gang, including McDermott, when Street and another gang member were arrested on April 4, 2003, for vehicle burglary. McDermott was angry at Street for having named names, and McDermott discussed with Hosford and Wall what to do to Street, including shooting him.
After dark and during the early morning hours of May 2, 2003, the four of them drove to the desert. McDermott told Street to take off his hat, shirt, pants, and shoes. Street reluctantly undressed after Hosford told him that it was a "test." McDermott then told Street to get down on his knees with his hands behind his back. McDermott placed a shirt over Street's head after Wall suggested that they do so to avoid blood spatter. McDermott then cocked the gun and told Street he knew that Street had ratted him out. McDermott asked Street if he was scared, to which he first answered that he was not, but when McDermott became angry at this response, Street said that he was a little bit scared. McDermott began tracing the gun around Street's head. When he reached the area near Street's temple, McDermott said he was looking for a certain spot, and when he had placed the gun next to Street's left temple, said "it's right there" and pulled the trigger. Street fell forward, still alive but unconscious. Wall then took the gun. McDermott mentioned the possibility of blood spatter, so Wall put Street's pants over Street's head. Wall bent over Street, said "Where do you want it, brother?" and shot Street a second time in the head. After he shot Street, Wall began jumping up and down, as if he was happy, and handed the gun to McDermott. Wall and McDermott embraced each other as if giving a hug and kissed each other on the cheek. Wall hugged Hosford, kissed him on his cheek, and told Hosford that if he told anyone, Wall would kill him.
Hosford was arrested the next day and, after initially telling the police an alibi story, later confessed that he, McDermott, and Wall had been involved in the murder. Wall was charged with conspiracy to commit first degree murder and with first degree murder (both as an aider and abettor and as a direct participant), and a sentence enhancement was sought for using a firearm in the commission of a crime.
The State filed a notice of intent to seek the death penalty against McDermott and Wall. The co-defendants' trials were severed and McDermott was tried first. At McDermott's trial, the jury did not reach a unanimous decision on the statutory circumstances that would have triggered the death penalty as to McDermott. After this, the State withdrew its notice of intent to seek the death penalty as to Wall.
Wall proceeded to a jury trial. After the jury had begun its deliberations, the district judge contacted counsel and expressed concern about the verdict form that had been provided to the jury. Over the objections of counsel, the judge called the jury back to court and read to them a new verdict form and accompanying instruction. The jury returned to its deliberations and thereafter found Wall guilty of first degree murder and the use of a firearm in the commission of a crime, but the jury acquitted Wall on the charge of conspiracy to commit first degree murder.
Following sentencing, Wall timely filed a notice of appeal. The sole issue raised on appeal is whether the district court erred by providing a substitute verdict form and instruction to the jury during the jury's deliberations.
A trial court presiding over a criminal case must instruct the jury on all matters of law necessary for the jury's information, and the appellate court exercises free review over whether a jury was given proper instructions. State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009) (citing Idaho Code § ...