from the District Court of the Fourth Judicial District of
the State of Idaho, in and for Ada County. Hon. Michael R.
McLaughlin, District Judge.
judgment of the district court is affirmed.
Pintler, Deputy State Appellate Public Defender, Boise,
argued for Appellant.
A. Fleming, Deputy Attorney General, Boise, argued for
an appeal out of Ada County from a judgment of conviction for
the crime of murder in the second degree. The primary issue
on appeal is whether the district court properly instructed
the jury on the issue of self-defense. We hold that the
district court did and affirm the judgment of conviction.
September 2010, Kandi Hall ("Kandi") was
unemployed, having been fired by the law firm where she had
worked, and she wanted another paralegal job. Emmett Corrigan
("Emmett") was waiting to learn the results of the
bar exam he had taken and wanted to hire a paralegal to work
for him when he began practicing law. They were introduced by
a mutual friend. Kandi and Emmett were immediately attracted
to each other, and within two weeks they began having a
sexual relationship. Emmett passed the bar exam, and he hired
Kandi in November 2010 to work for him in the law office he
had opened. Their torrid sexual relationship continued,
including having sexual intercourse in the law office, until
March 11, 2012, when Kandi's husband, Robert Dean Hall
("Rob"), shot and killed Emmett in the parking lot
of a pharmacy. A jury found Rob guilty of murder in the
second degree. Kandi testified at trial that she always loved
her husband, never intended to leave him, and was committed
to their marriage.
March 11, 2012, Kandi had left work at about 6:00 p.m., and
upon arriving home she had discovered that Rob was in the
garage packing large boxes. He told her that he had had it
with the way she had been so nonresponsive to their
relationship the last few months. As they continued their
discussion, she admitted to having an affair with an attorney
in Oregon, but she later recanted that statement. He left
their house at about 8:45 p.m., and she left shortly
thereafter. As she was backing out of their driveway, she had
a phone conversation with Emmett. She told him she was going
to the pharmacy to pick up a prescription, and he stated that
he would meet her there.
March 11, 2012, Emmett had left work sometime after Kandi
did. When he arrived at home, his wife confronted him about
their marital problems. He responded by becoming angry. At
some point, he had the telephone conversation with Kandi
Hall. He told her he would meet her at the pharmacy parking
lot. He then told his wife that he had to go pick up a
prescription and left.
Kandi had picked up her prescription, she got into
Emmett's pickup. After stopping for gas, he began driving
around. He ultimately parked in a subdivision being
developed, where they had sexual intercourse for the second
time that day. Kandi then received a call from her older
daughter, who wondered where she was. The daughter had seen
Kandi's car in the pharmacy parking lot and had called
Kandi, but Kandi had not answered the call. She had then
called Rob to ask where Kandi was. Kandi told her daughter
that she was just driving around with a female friend.
Emmett was driving back to the pharmacy parking lot, Kandi
received a call from Rob. Emmett grabbed her phone and asked
Rob, "What's up chief?" Kandi described
Emmett's tone of voice as being aggressive. Kandi could
only hear Emmett's side of the conversation. He said to
Rob: "Yeah, we're talking about life. Have you got a
problem with that?" Kandi described Emmett's tone of
voice as being derogatory, derisive, and challenging. Rob
apparently responded, and Emmett said to him, "Yeah,
I'm going to crack your f***ing head." Kandi
described Emmett's tone of voice as being threatening.
Emmett then said, "Just wait there. We'll be right
there." Kandi described Emmett's tone of voice as
drove into the pharmacy parking lot shortly after 10:00 p.m.
He parked, he and Kandi got out of Emmett's pickup, and
Rob got out of his pickup. Rob had a compact, .380 ACP
caliber pistol with a laser sight. Rob was dressed in sweat
pants and a black, pull-over hoodie with a kangaroo pocket.
Before getting out of his pickup, Rob had removed the pistol
from the holster in which he carried it in the pickup, left
the holster there, and put the pistol in the kangaroo pocket
of his hoodie.
was the only witness to what then occurred. Prior to the
trial, she gave accounts of what had occurred that differed
from her trial testimony. During the final jury instruction
conference, the district court discussed its jury instruction
regarding the use of such pretrial statements. When doing so,
the court stated, "Frankly, in my many years as a judge,
I don't know that I've seen a witness to a case who
has made so many conflicting statements and/or the level of
impeachment." In ruling on Rob's motion for a new
trial, the district court again stated with respect to
Frankly, any testimony by Ms. Hall, in my 31 years on the
bench I don't think I've seen a witness more
thoroughly discredited in the course of a proceeding. And the
jury had a right to not consider that as evidence, that when
she testified at the trial and said there was a very strong
push, that she turned around, she heard some kind of grunting
noises and then the firearm was discharged. They could have
chosen to completely ignore that.
the central issue on appeal concerns whether the facts
justified a particular instruction on self-defense, and
therefore we will state the facts in a manner most favorable
to Rob, which is Kandi's trial testimony.
testified that after everyone was out of their respective
vehicles, Emmett was standing against his pickup, leaning
backward against it with his arms crossed, and Rob walked
over to where Emmett and Kandi were, but he and Rob were
"pretty far apart." Rob asked, "What's
going on?" and Emmett answered, "She doesn't
want to be with you, Rob." Rob looked at Emmett and
asked, "She wants to be with you?" Emmett then made
statements intended to insult Rob and to incite him to fight,
concluding with, "She doesn't want to be with
you." Rob looked at Kandi and said, "But you want
to be-he has got five kids, Kandi." He then looked at
Emmett and stated, "And your poor wife, she just had a
baby, and she is at home while you're out with my
wife." Emmett then lunged forward and pushed Rob in the
chest with both hands, but not forcefully enough to make him
fall. Kandi stepped between them, told Emmett to get in his
pickup, told Rob they had to leave because their daughter
called, turned around, and was walking toward her car when
she heard scuffling on the ground behind her. She then heard
three gunshots. She turned around and saw Rob standing with
blood running down his face. He had his pistol in his right
hand, and he then collapsed, dropping the pistol. She later
saw Emmett lying on the ground.
a grazing bullet wound on the top left side of his head.
According to expert medical testimony, although the bullet
did not penetrate or fracture the skull, it caused a
traumatic brain injury, a moderate concussion. As a result,
he suffered retrograde amnesia and cannot recall what
occurred. He did not testify at the trial, although
statements he made to the police shortly after the incident
had two gunshot wounds, one to the chest and one to the head.
The bullet that hit his chest passed through his sternum at
the level of the fifth rib, through the right ventricle of
his heart, through the middle lobe of his left lung, and
impacted his spinal column at the level of the tenth thoracic
vertebrae. It entered the bone, but did not hit the spinal
cord. However, the force transmitted to the spinal cord by
the bullet impact would have cut off all electrical impulses
below the point of impact, and he would not have been able to
move anything below that point. He would have dropped to the
ground as quickly as gravity could pull him down. From an
abrasion that he suffered on the right side of his forehead,
it appears that he pitched forward when he fell, hitting his
head. This wound was fatal, but not immediately. The bullet
that hit his head entered his skull just inside the hairline
of his upper right forehead, traveled in a slight downward
and leftward direction through the entire right side of his
brain, and ended at the bottom part of his brain on the right
side. It too was a fatal wound, but not immediately. After
being shot, he could have lived for a short period of time.
appeal was initially heard by the Idaho Court of Appeals,
which upheld the judgment of the district court. We then
granted Rob's petition for review. In cases that come
before this Court on a petition for review of a decision of
the Court of Appeals, we do not review the decision of the
Court of Appeals. State v. Suriner, 154 Idaho 81,
83, 294 P.3d 1093, 1095 (2013). We hear the case anew as if
the appeal had initially come directly to this Court.
the District Court Err in Instructing the Jury on Self
relevant to self-defense in a homicide case is set forth in
Idaho Code sections 18-4009 and 18-4010. The applicable
portions of section 18-4009 and section 18-4010 are as
Code section 18-4009:
Homicide is also justifiable when committed by any person in
either of the following cases:
1. When resisting any attempt to murder any person, or to
commit a felony, or to do some great bodily injury upon any
2. When committed in defense of . . . person, against one who
manifestly intends or endeavors, by violence or surprise, to
commit a felony . . .; or,
3. When committed in the lawful defense of such person . . .
when there is reasonable ground to apprehend a design . . .
to do some great bodily injury, and imminent danger of such
design being accomplished . . .;
Code section 18-4010:
A bare fear of the commission of any of the offenses
mentioned in subdivisions 2 and 3 of the preceding section,
to prevent which homicide may be lawfully committed, is not
sufficient to justify it. But the circumstances must be
sufficient to excite the fears of a reasonable person, and
the party killing must have acted under the influence of such
issue is the failure of the district court to instruct the
jury regarding subsection (1) of Idaho Code section 18-4009.
The reason it is an issue is that Idaho Code section 18-4010
does not apply to that subsection, so there is no requirement
that "the circumstances must be sufficient to excite the
fears of a reasonable person, and the party killing must have
acted under the influence of such fears alone."
October 4, 2012, the defense filed its proposed jury
instructions and a memorandum supporting the proposed
instructions. The proposed jury instructions included an
instruction on justifiable homicide that was based upon
subsections (1), (2), and (3) of Idaho Code section
18-4009. In the accompanying memorandum, the
defense argued that the jury instruction based upon section
18-4009(1) was supported by Kandi's testimony that Emmett
made statements enticing Rob to fight and that he pushed Rob
in the chest with both hands prior to being killed.
defense also argued in the memorandum that an excusable
homicide instruction should be given as defined in Idaho Code
section 18-4012 based upon anticipated evidence showing that
the shooting was accidental. Excusable homicide is one
committed by accident or misfortune under the circumstances
described in the statute.
district court did not instruct the jury regarding
self-defense as set forth in subsection (1) of Idaho Code
section 18-4009. The court's instruction, which was based
upon Idaho Criminal Jury Instruction No. 1517, stated as
A homicide is justifiable if the defendant was acting in
In order to find that the defendant acted in self-defense,
all of the following conditions must be found to have been in
existence at the time of the killing:
1.The defendant must have believed that the defendant was in
imminent danger of death or great bodily harm.
2. In addition to that belief, the defendant must have
believed that the action the defendant took was necessary to
save the defendant from the danger presented.
3.The circumstances must have been such that a reasonable
person, under similar circumstances, would have believed that
the defendant was in imminent danger of death or great bodily
injury and believed that the action taken was necessary.
4.The defendant must have acted only in response to that
danger and not for some other motivation.
5.When there is no longer any reasonable appearance of
danger, the right of self-defense ends.
In deciding upon the reasonableness of the defendant's
beliefs, you should determine what an ordinary and reasonable
person might have concluded from all the facts and
circumstances which the evidence shows existed at that time,
and not with the benefit of hindsight.
The danger must have been present and imminent, or must have
so appeared to a reasonable person under the circumstances. A
bare fear of death or great bodily injury is not sufficient
to justify a homicide. The defendant must have acted under
the influence of fears that only a reasonable person would
have had in a similar position.
contends on appeal that the failure to instruct on
self-defense as set forth in subsection (1) of Idaho Code
section 18-4009 requires that his judgment of conviction be
vacated and that he be granted a new trial.
did not object to the failure to instruct the jury regarding
self-defense as set forth in Idaho Code section
30(b) of the Idaho Rules of Criminal Procedure requires the
trial court to inform counsel of the court's proposed
actions with respect to requested instructions and to give
the parties an opportunity to "make objections outside
the presence of the jury to such instructions or the failure
to give requested instructions." Id. The rule
also states, "No party may assign as error the giving of
or failure to give an instruction unless the party objects
thereto before the jury retires to consider its verdict,
stating distinctly the instruction to which the party objects
and the grounds of the objection."
presentation of evidence began on October 10, 2012, and the
State rested during the afternoon of October 19, 2012. After
the jury was dismissed for the day, the district court held a
conference to discuss its proposed jury instructions. The
court began by stating: "We're just going to go over
proposed jury instructions a little bit. Again, it's not
our final instructions conference. I've given you a clean
copy of the instructions." At the conclusion of this
conference, the court asked both sides if they had any
additional instructions. Defense counsel Mr. Chastain asked
if the court was denying the defense's justifiable
homicide instruction, and the court stated it would take a
look at it. The exchange was as follows:
THE COURT: Now, did the state have any other proposed
instructions other than
[IDJI] 318 as noted earlier by Ms. Lorello?
MS. LORELLO: No, Your Honor.
THE COURT: No additional instructions? Defense?
MR. CHASTAIN: Your Honor, I think we had made a request as to
justifiable or excusable homicide in our request. Is the
court declining to give those?
THE COURT: Well, now, let's take a look at the
instruction on self-defense.
That's Instruction 30: "A homicide is justifiable if
the defendant was acting in self-defense." You're
saying you want the additional instruction on justifiable
MR. CHASTAIN: I believe we requested it. I didn't bring
that with me.
THE COURT: I'll take a look at that. I'll take a look
parties concluded their presentation of evidence during the
mid-morning of October 23, 2012. After the jury was dismissed
for the day, the district court had another jury instruction
conference. During the conference, the court brought up its
excusable homicide instruction, which was proposed
instruction No. 36. The court read the instruction as
Under the law, homicide is justifiable if any one of the
following circumstances occur: the homicide was committed
while resisting an attempt to do great bodily injury to the
defendant; or the homicide was committed in defending oneself
against one who manifestly intends or endeavors, by violence
or surprise, to commit a felony.
However, the bare fear of such acts is not sufficient unless
the circumstances are sufficient to create such a fear in a
reasonable person if the defendant acted under the influence
of such fears alone.
first paragraph of proposed instruction No. 36 set forth two
circumstances in which a homicide was justifiable. The first
circumstance was if "the homicide was committed while
resisting an attempt to do great bodily injury to the
defendant" (based upon subsection (1) of Idaho Code
section 18-4009), and the second circumstance was if
"the homicide was committed in defending oneself against
one who manifestly intends or endeavors, by violence or
surprise, to commit a felony" (based upon subsection (2)
of Idaho Code section 18-4009). The second paragraph was
based upon Idaho Code section 18-4010, but the instruction
did not limit the application of the second paragraph to the
circumstance that was based upon subsection (2) of Idaho Code
section 18-4009. The second paragraph would have erroneously
applied to circumstances constituting justifiable homicide in
the first paragraph. The court also had a separate self-defense
instruction, which was based upon subsection (3) of Idaho
Code section 18-4009.
it read aloud proposed instruction No. 36, the court noted
that the State had objected that this instruction was
duplicative of the court's self-defense instruction,
which was proposed instruction No. 38. Defense counsel Ms.
Kristal did not make any objection to proposed instruction
No. 36. Instead, she stated that the court also needed to
give an instruction on excusable homicide. She explained the
need for an instruction on excusable homicide as follows:
MS. KRISTAL: Which is also why we think the court needs to
give the excusable homicide because it's clear that Mr.
Hall doesn't know what happened. He only knows that he
was in a fight and he got shot. The wife's boss shot him.
The jury has to decide whether the shooting was accidental.
Was it self-defense or was it, as the state says, that he was
lying in wait and murdered Mr. Corrigan?
We think that all of the evidence the jury has heard permits
all of those instructions. Therefore, we would request that
the judge continue to give excusable and justifiable and a
court responded by explaining why it thought proposed