Appeal from the District Court of the First Judicial District, State of Idaho, Shoshone County. Hon. Fred M. Gibler, District Judge.
The opinion of the court was delivered by: Gratton, Chief Judge
Judgment of conviction and sentences for aiding and abetting in two first degree murders, affirmed.
Corey S. Reid appeals his judgment of conviction rendered upon a jury verdict for aiding and abetting in two first degree murders, Idaho Code §§ 18-4001, 18-4003(a), and 18-204. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 4, 2008, Reid, Jon Kienholz, Hiram Wilson, Neil Howard, and Cynthia Bewick were at a campground at Dobson Pass outside of Wallace, Idaho. Kienholz shot and killed Howard and Bewick. Reid was charged with aiding and abetting in both murders. Kienholz and Wilson testified against Reid at trial.
According to Kienholz's testimony, he developed a plan to drive to Bolivia and earn a living there selling illegal substances. Reid wanted to go with him because of an upcoming legal proceeding. Howard and Bewick, who were dating, also wanted to go because they thought they had outstanding warrants for their arrest. The group planned to drive Howard's vehicle. On themorning of the murders, Kienholz called a friend and arranged to trade marijuana for a pistol. Reid was in the car and overheard Kienholz's conversation. Kienholz dropped off Reid, bought a .22 caliber pistol, and then returned for Reid. Reid observed the pistol. They then picked up Reid's girlfriend, Kristen Purtill, and drove to the house where Howard and Bewick were staying. It was there that Howard and Bewick told Kienholz that they thought Purtill was going to turn them in on their warrants. Kienholz told Reid about this accusation and both Reid and Purtill became angry. Kienholz obtained a full box of .22 ammunition. The group of five drove to Dobson Pass and stopped at a campsite, almost a mile off of the road, where they started a fire. Kienholz and Reid decided to take a short trip to town, leaving Purtill, Howard, and Bewick at the campsite. However, when Howard got his pocket knife out of the car, Purtill refused to stay. Kienholz, Reid, and Purtill then left in Howard's vehicle. As the three drove away from the campsite, Reid became angry that Howard retrieved his knife and told Kienholz "We have to kill them." They dropped off Purtill in town and picked up Reid's cousin, Wilson. Reid told Wilson that they were going to kill Howard and Bewick. The three then returned to Dobson Pass and parked on the main road. Wilson retrieved the pistol and Reid retrieved the .22 shells to give to Kienholz. The three then walked to the campground and talked about how they would commit the murders. With the pistol hidden below Kienholz's shirt, the three walked into the campground. Kienholz talked to Howard while glancing at Reid. Reid was silently mouthing the words to Kienholz "Come on, do it." Kienholz shot Howard in the head, and then shot Bewick. Kienholz and Wilson then dumped the bodies down a hill. As the three headed back to the car, Reid removed a number of .22 shells from his pocket and discarded them. The three then picked up Purtill and drove to Boise.
According to Wilson's testimony, when Wilson got in the vehicle with Kienholz and Reid, Reid told Wilson that they needed to kill Howard and Bewick. On the drive to Dobson Pass, Kienholz and Reid talked about how they were going to commit the murders. When the vehicle stopped, Reid got the shells out of the glove box, handed Kienholz six shells, and kept a number in his own pocket in case Kienholz missed. As the three were waiting outside the campsite, Reid told Kienholz to just walk into the campsite and shoot them. The three then walked into the campsite, and Kienholz talked to Howard. Wilson did not see Reid mouth any words to Kienholz. Kienholz shot Howard once, kicked Bewick, shot her four times, and then shot Howard again. Wilson and Kienholz then disposed of the bodies. On the walk back, Reid discarded the shells from his pocket. The group traveled to Boise, where Reid assured Kienholz that it had to be done because Howard was going to kill Purtill. After running out of money, Wilson returned home and turned himself in to the police.
Prior to trial, a hearing was held on Reid's motion in limine to exclude photographs of the victims' bodies. The district court excluded photographs taken at the morgue and allowed some of the photographs taken at the crime scene. At a second hearing, the State asserted it possessed 126 photos of the crime scene and the number of photos to be used at trial had already been reduced. The State made an offer of proof through the testimony of Detective Morgan as to each remaining photograph. Reid objected, claiming the photographs lacked relevance, were cumulative, and unfairly prejudicial. The district court excluded a number of the photographs and at trial the State presented thirty-one photographs from the crime scene.
The jury convicted Reid of aiding and abetting in the first degree murders of Howard and Bewick. For sentencing purposes, the State submitted a transcript of a conversation between Detective Morgan and Ronald Rollins, a prior cellmate of Reid's, in which Rollins described conversations with Reid regarding the murders. The district court imposed concurrent unified sentences of life with thirty years determinate on each count. Reid appeals.
Reid asserts that his conviction should be overturned because of: (1) erroneous jury instructions on the elements for aiding and abetting first degree murder; and (2) erroneous admission into evidence of graphic photographs of the victims, Exhibits 17, 22, and 27. Reid contends that if his conviction is upheld, he should be resentenced because the district court violated his due process rights by considering at sentencing the transcript of the Rollins' interview.
Reid argues that the jury instructions given, defining the elements of aiding and abetting first degree murder, omitted the requirement that Reid share the mental state of premeditation with Kienholz. Reid did not object to the instruction below. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). A narrow exception exists for those issues that rise to the level of fundamental error. State v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980 (2010):
If the alleged error was not followed by a contemporaneous objection, it shall only be reviewed by an appellate court under Idaho's fundamental error doctrine. Such review includes a three-prong inquiry wherein the defendant bearsthe burden of persuading the appellate court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) plainly exists (without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision); and (3) was not harmless. If the defendant persuades the appellate court that the complained of error satisfies this three-prong inquiry, then the appellate court shall vacate and remand.
Reid must demonstrate that the alleged jury instruction errors rose to the level of fundamental error. As we find the plain-error prong dispositive we need not address the other Perry prongs. Reid argues the error in the instruction--omission of the element of premeditation-- plainly exists from criminal statutes, jury instructions, and applicable law. Reid also contends that the record demonstrates his failure to object was not a tactical decision. The State contends that there was no error, much less plain error. The State argues that whether or not premeditation, as asserted by Reid, is required to convict on aiding and abetting, the jury instructions were correct.
For an error to plainly exist there must, of course, be a demonstration of error. Requiring error to be "plain" is "synonymous with 'clear' or, equivalently, 'obvious.'" Id. at 225, 245 P.3d at 977 (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). It must be shown "the error is clear under the current law," id., or as stated by the Ninth Circuit Court of Appeals, whether the "available authorities provide a clear answer to the question." United States v. Thompson, 82 F.3d 849, 855 (9th Cir. 1996). In addition, there must be no need for additional information outside the appellate record. Perry, 150 Idaho at 228, 245 P.3d at 980. Further, for the error to be plain there must not be a question as to whether the failure to object was a tactical decision. Id. Reid cannot meet this burden of demonstrating plain error.
When reviewing jury instructions, the appellate court must determine whether the instructions, as a whole, fairly and adequately present the issues and state the law. State v. Hickman, 146 Idaho 178, 181, 191 P.3d 1098, 1101 (2008). Reid was accused of aiding and abetting murder, I.C. §§ 18-4001, 18-4003(a), and 18-204. Idaho Code § 18-4001 defines murder as "the unlawful killing of a human being . . . with malice aforethought . . . ." Idaho Code § 18-4003(a) states: "All murder . . . which is perpetrated by any kind of willful, deliberate and premeditated killing is murder of the first degree." Idaho Code § 18-204 defines who may be sentenced as a principal for a crime:
All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission, or, not being present, have advised and encouraged its commission, or who, by fraud, contrivance, or force, occasion the intoxication of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command or coercion, compel another to commit any crime, are principals in any crime so committed.
In this case, the following instructions were given that relate to Reid's claim on appeal. Instruction 17 stated:
In order for the defendant to be guilty of Count I, Aiding and Abetting First Degree Murder, the state must prove each of the following:
1. On or about the 4th day of August, 2008;
2. In the State of Idaho;
3. Jon Allen Kienholz, Jr., did without ...