Preview:

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 32070
STATE OF IDAHO,                                                                                   )   2010 Opinion No. 30
)
Plaintiff-Respondent,                                                                             )   Filed: April 29, 2010
)
v.                                                                                                )   Stephen W. Kenyon, Clerk
)
ROBROY WALL, JR.,                                                                                 )
)
Defendant-Appellant.                                                                              )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County.  Hon. Darla S. Williamson, District Judge.
Judgment of conviction for first degree murder, affirmed.
Greg S. Silvey, Kuna, for appellant.
Hon.  Lawrence  G.  Wasden,  Attorney  General;  Rebekah  A.  Cudé,  Deputy
Attorney General, Boise, for respondent.
WALTERS, Judge Pro Tem
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.
1




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
2




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.
II.
DISCUSSION
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 § 19-2132 and Miller v. State, 135 Idaho 261, 265, 16 P.3d 937, 941
(Ct. App. 2000)).
Here, Wall does not assert that any of the substantive instructions given to the jury were
improper or defective.1   Rather, Wall contends only that the district court’s act of providing a
substitute verdict form to the jury over counsel’s objections, after the deliberations had begun,
and the form itself, were improper.
Our determination of the issue raised in this appeal entails consideration of the statutes
relating to the charge against Wall.  Murder is defined in I.C. § 18-4001 in the following terms:
1                                                                                                      The district court used the Idaho Criminal Jury Instructions (ICJI) as patterns for the
instructions to the jury.   As was noted by this Court in State v. Ruel, 141 Idaho 600, 602, 114
P.3d 158, 160 (Ct. App. 2005):
The pattern ICJI instructions are presumptively correct.    The Idaho Supreme
Court approved the pattern jury instructions and has recommended that the trial
courts use the instructions unless a different instruction would more adequately,
accurately, or clearly state the law.
3




Murder is the unlawful killing of a human being including, but not limited
to,  a  human  embryo  or  fetus,  with  malice  aforethought  or  the  intentional
application of torture to a human being, which results in the death of a human
being. Torture is the intentional infliction of extreme and prolonged pain with the
intent to cause suffering. It shall also be torture to inflict on a human being
extreme and prolonged acts of brutality irrespective of proof of intent to cause
suffering.    The  death  of  a  human  being  caused  by  such  torture  is  murder
irrespective of proof of specific intent to kill; torture causing death shall be
deemed the equivalent of intent to kill.
In Idaho the difference between first degree murder and murder in the second degree
depends upon circumstances associated with the commission of a murder.   Idaho Code § 18-
4003 provides the bases for the classification of the two kinds of murder.   These bases are set
forth below.2  Notably, subsections (a) through (f) set forth the special circumstances that qualify
a killing of a human being for murder in the first degree, and subsection (g) specifies that “all
other kinds of murders are of the second degree.”   Idaho Code § 18-4004 provides that every
2
Idaho Code § 18-4003.  Degrees of murder.
(a) All murder which is perpetrated by means of poison, or lying in wait,
or torture, when torture is inflicted with the intent to cause suffering, to execute
vengeance, to  extort  something from  the victim, or to  satisfy some  sadistic
inclination,  or  which  is  perpetrated  by  any  kind  of  willful,  deliberate  and
premeditated killing is murder of the first degree.
(b) Any murder of any peace officer, executive officer, officer of the
court, fireman, judicial officer or prosecuting attorney who was acting in the
lawful discharge of an official duty, and was known or should have been known
by the perpetrator of the murder to be an officer so acting, shall be murder of the
first degree.
(c) Any murder committed by a person under a sentence for murder of the
first or second degree, including such persons on parole or probation from such
sentence, shall be murder of the first degree.
(d) 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 mayhem, or an act of terrorism, as defined in section 18-
8102, Idaho Code, or the use of a weapon of mass destruction, biological weapon
or chemical weapon, is murder of the first degree.
(e) Any murder committed by a person incarcerated in a penal institution
upon a person employed by the penal institution, another inmate of the penal
institution or a visitor to the penal institution shall be murder of the first degree.
(f) Any murder committed by a person while escaping or attempting to
escape from a penal institution is murder of the first degree.
(g) All other kinds of murder are of the second degree.
4




person guilty of   murder in the first degree is punishable by death or by imprisonment for life,
with a ten-year minimum period of confinement during which the offender cannot be eligible for
parole, discharge, credit or reduction of sentence, except for “meritorious service.”   The same
code section  further provides that every person guilty of murder in  the second degree  is
punishable by a term of imprisonment not less than ten years and the imprisonment may extend
to life.
The effect of this statutory process is that a murder may be elevated to the category which
is punishable as a first degree murder through the existence of particular circumstances specified
in I.C.  § 18-4003(a) through (f), which are to be alleged and proved by the State, but if not so
elevated, then the murder is punishable as a murder in the second degree, I.C.  § 18-4003(g) and
I.C. § 18-4004.
Wall was charged with committing the murder of Street as a “willful, deliberate and
premeditated killing” in violation of I.C. § 18-4003(a).  The jury was also instructed on the lesser
offenses  of  second  degree  murder,  voluntary  manslaughter,  and  involuntary  manslaughter.
Under Idaho law, when a lesser included offense is submitted to the jury, the jury must be
instructed that it may not consider the lesser offense unless it has first considered each of the
greater offenses and acquitted the defendant of such greater offenses.  I.C. § 19-2132.
Among the instructions given to the jury, was an instruction based upon the statutory
definition of murder, I.C. §18-4001.  This instruction, No. 18, informed the jury that murder was
the killing of a human being without legal justification or excuse and with malice aforethought.3
Utilizing ICJI 704, tailored to the charge against Wall, the district court also gave the jury
instruction No. 17, which recited that:
In order for the defendant to be guilty of Murder, the state must prove
each of the following:
1.                                                                                                     On or about May 2, 2003
2.                                                                                                     in the state of Idaho
3.                                                                                                     the defendant Robroy Wall, Jr. engaged in conduct
                                                                                                       which caused the death of Zachariah Street
4.                                                                                                     the defendant acted without justification or excuse
and
5.                                                                                                     with malice aforethought.
3                                                                                                      Although the statute, I.C. §18-4001, also includes death by intentional torture within the
definition of murder, that cause was not alleged in the charge against Wall and therefore was not
made a part of instruction No. 18.
5




If you find that the state has failed to prove any of the above, then you
must find the defendant not guilty of murder.   If you find that all of the above
have been proven beyond a reasonable doubt then you must find the defendant
guilty of murder and decide if the defendant is guilty of first degree murder.
Because Wall was charged with committing murder in the first degree, the district court
also gave the jury an instruction concerning that specific charge, based on I.C. § 18-4003(a) and
utilizing ICJI 705.  This instruction, No. 20, recited:
In order for the defendant to be guilty of First Degree Murder, the state
must prove that the murder:
was  a  willful,  deliberate,  and  premeditated  killing.
Premeditation means to consider beforehand whether to kill or not
to kill, and then to decide to kill.   There does not have to be any
appreciable period of time during which the decision to kill was
considered, as long as it was reflected upon before the decision
was made.   A mere unconsidered and rash impulse, even though it
includes an intent to kill, is not premeditation.
If you unanimously agree that the state has proven the above special
circumstance beyond a reasonable doubt, then you must find the defendant guilty
of first degree murder.   If you unanimously agree that the special circumstance
has not been proven beyond a reasonable doubt, you must find the defendant
guilty of second degree murder.
All other murder is murder of the second degree.
Considered together, instruction Nos.  17 and  20 informed the jury that it first must
determine whether a murder occurred and whether Wall committed the alleged murder.  If so, then
the jury was next to determine whether the State proved it was a murder in the first degree.   If the
murder was a willful, deliberate and premeditated killing, i.e., first degree murder, then the jury
was to find Wall guilty of first degree murder.   If the State proved that Wall committed the
murder, but failed to prove that it was first degree murder, i.e., the State did not prove beyond a
reasonable doubt that the killing was willful, deliberate and premeditated as alleged by the State,
then the jury was instructed to find Wall guilty of second degree murder.
The verdict form initially submitted by the district court to the jury reflected the foregoing
instructions.  This form instructed the jury to first determine whether the State had proved Street’s
killing was murder and to render a verdict on that question, finding Wall either guilty or not
guilty.   If the jury found Wall not guilty of murder, then the jury was to proceed to determine
whether Wall was guilty or not guilty of one of the lesser included offenses of voluntary and
6




involuntary manslaughter, and then whether he had used a firearm in the commission of a crime
and, finally, whether he was guilty or not guilty of conspiracy to commit first degree murder.    If
the jury found Wall guilty of murder, then the jury was to proceed to consider whether Wall was
guilty or not guilty of first degree murder.   If the jury found Wall guilty of first degree murder,
then the jury was to proceed to the inquiries of whether he had used a firearm in the commission
of a crime and whether he was guilty or not guilty of a conspiracy to commit first degree murder.
Likewise, if the jury found Wall not guilty of first degree murder, the jury was to proceed to the
questions of whether Wall had used a firearm in the commission of a crime and whether he was
guilty or  not  guilty of  conspiracy to  commit  first  degree  murder.    This  verdict  form  was
accompanied by an instruction, No. 40, that explained to the jury the steps, as set forth above, to
be taken to answer the questions on the verdict form.
About eleven hours after the jury had begun its deliberations, the district court called
counsel for the parties and advised them that she had decided there was error in the verdict
instruction.  She informed counsel that she had concluded that if the jury first found Wall guilty or
not guilty of murder, it would constitute a determination of the lesser offense of second degree
murder before the jury considered the charged offense of first degree murder, which would be
contrary to the directive of I.C. § 19-2132.  The district court explained:
I’ve been meeting with counsel in my chambers this morning, because I
was concerned that the jury verdict and the jury verdict instruction was incorrect.
Because in my opinion, it put the lesser included offense of murder as the first
decision for the jury to make, where the first question that the jury should answer
is whether or not the defendant is guilty of first degree murder.
The court’s concern, which is what I expressed to counsel in chambers, is
that if the jury comes back, finds                                                                      -- should, for example, the jury find the
defendant guilty of second degree murder, and then they’re deadlocked on first-
degree.  If that scenario happens, then what does the court do?  Is the state entitled
to a mistrial, entitled to a -- because the jurors were deadlocked on the crime that
was charged?   They don’t get to the lesser included offenses until they make a
decision on the crime charged.  So this has to be my decision.
The district court, over objection of both parties, prepared a new verdict form that placed
before the jury the initial question of whether Wall was guilty or not guilty of first degree murder.
The form provided that if the jury determined that Wall was guilty of first degree murder, then the
7




jury was to proceed to determine whether Wall used a firearm in the commission of a crime and
whether Wall was guilty or not guilty of conspiracy to commit first degree murder.   The form
provided that if the jury determined that Wall was not guilty of first degree murder, then the jury
was next to determine whether Wall was guilty or not guilty of second degree murder.   If the jury
determined that Wall was guilty of second degree murder, then the next questions for the jury
were whether Wall used a firearm in the commission of a crime and whether Wall was guilty or
not guilty of conspiracy to commit first degree murder.   If Wall was found not guilty of second
degree murder, then the jury was to determine whether he was guilty or not guilty of the lesser,
included offenses of voluntary and involuntary manslaughter.  This verdict form was accompanied
by a new instruction No.  40 that explained to the jury the steps to follow in answering the
questions on the new verdict form, similarly as had been done with the original verdict form and
the original instruction No. 40.
On appeal, Wall argues that by withdrawing the initial verdict form and substituting the
new verdict form, the district court committed reversible error by essentially directing a verdict in
favor of the State on the offense of murder and allowed the jury to find Wall guilty of first degree
murder without  ever having found him  guilty of murder,  aside from  special circumstances
attendant to the killing.   He also asserts that it was error to provide the new verdict form over the
objections of both parties after closing arguments that were based on the original verdict form,
which was consistent with the instructions setting forth the elements of the offense.   Finally, he
asserts that the action of the district court, in providing the new verdict form after the jury had
been in deliberation for over eleven hours, suggests that it acted as a prohibited dynamite
instruction because the jury rendered its verdict shortly thereafter.
We are not persuaded by Wall’s arguments.   The new verdict form submitted to the jury
by the district court did not change the direction that the jury had received by instruction No. 17,
quoted above, concerning the elements of murder that had to be proved before the jury could find
Wall guilty of first degree murder.   While the initial verdict form explicitly gave the jury the
responsibility of determining murder guilt preliminarily before considering whether the murder
was one in the first degree, the new verdict form essentially combined the two inquiries into one,
because  the  jury  could  not  find  Wall  guilty  of  first  degree  murder  without  also  agreeing
unanimously that he was guilty of murdering Street as set forth in the elements contained in
instruction No. 17.     We thus do not find the new verdict form to be inconsistent with the other
8




instructions to the jury.   In light of the elements of instruction No. 17, the new verdict form was
not tantamount to a directed verdict.
We also do not conclude that the timing of the submission of the new form to the jury
establishes that it served as a prohibited dynamite instruction.   There is nothing in the record to
indicate that the jury had reached an impasse in its deliberations or had advised the court that it
was unable to reach a verdict.   It is equally plausible that by the time the court provided the new
verdict form to the jury, the jury had already determined guilt on the question of murder and was
proceeding with the inquiries concerning the use of a firearm and whether Wall was guilty or not
of conspiring to commit first degree murder.
III.
CONCLUSION
The district court did not commit reversible error by submitting to the jury a new verdict
form during the jury’s deliberations.  The judgment of conviction and sentence are affirmed.
Chief Judge LANSING and Judge GUTIERREZ, CONCUR.
9

Download wall-20opinion.pdf

Idaho Law