This case is before the Court on a petition to review the Court of Appeals decision vacating the conviction of Billy Sheahan for first degree murder for the shooting death of Darrell Fernquist, a bail bondsman. The State requests that this Court affirm the original conviction.
FACTUAL AND PROCEDURAL BACKGROUND
The Court of Appeals accurately set forth the background of the case:
A jury found Sheahan guilty of first degree murder. Sheahan appealed and the case was assigned to the Court of Appeals. The Court of Appeals vacated the conviction, finding that the jury instruction for "proof beyond a reasonable doubt" misstated the law and that the district court erroneously admitted irrelevant evidence of a prior incident where Sheahan pointed a gun toward a door where a police officer stood. The Court of Appeals also affirmed the district court's denial of Sheahan's motion for change of venue and provided as guidance that evidence of Sheahan's non-use of weapons when taking persons into custody was improperly admitted. The State now appeals, requesting this Court to affirm the original conviction. Sheahan appeals the district court's denial of his motion for a change of venue and also argues ten other issues, which were raised but not addressed by the Court of Appeals.
STANDARD OF REVIEW
When considering a case on review from the Court of Appeals, this Court does not merely review the correctness of the decision of the Court of Appeals. Leavitt v. Swain, 133 Idaho 624, 627, 991 P.2d 349, 352 (1999). This Court acts as though it is hearing the matter on direct appeal from the decision of the trial court. However, this
Constitutional issues and the propriety of jury instructions are questions of law over which this Court exercises free review. State v. Statton, 136 Idaho 135, 136, 30 P.3d 290, 291 (2001); Clark v. Klein, 137 Idaho 154, 156, 45 P.3d 810, 812 (2002). If a reasonable doubt instruction is found to have lessened the state's burden of proof, the error is never harmless error. Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 2082, 124 L.Ed.2d 182, 190 (1993) ("[T]he essential connection to a `beyond a reasonable doubt' factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings").
THE JURY INSTRUCTION DEFINING "PROOF BEYOND A REASONABLE DOUBT" ADEQUATELY STATES THE LAW
The jury instruction used by the district court to define "proof beyond a reasonable doubt" states:
When reviewing jury instructions, this Court must determine whether "the instructions, as a whole, fairly and adequately present the issues and state the law." Silver Creek Computers, Inc. v. Petra, Inc., 136 Idaho 879, 882, 42 P.3d 672, 675 (2002). When reviewing a "reasonable doubt" instruction, "[t]he Constitution does not dictate that any particular form of words be used in advising the jury of the State's burden of proof, so long as `taken as a whole, the instructions correctly conve[y] the concept of reasonable doubt.'" State v. Gleason, 130 Idaho 586, 589, 944 P.2d 721, 724 (Ct.App.1997) (quoting Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137-38, 99 L.Ed. 150, 166 (1954)). An erroneous instruction does not constitute reversible error unless the instructions, when taken as a whole, misled the jury or prejudiced a party. Silver Creek Computers, 136 Idaho at 882, 42 P.3d at 675; State v. Nath, 137 Idaho 712, 716, 52 P.3d 857, 861 (2002). If a reasonable doubt instruction is found to have lessened the state's burden of proof, the error is never harmless error. Sullivan, 508 U.S. at 281, 113 S.Ct. at 2082-83, 124 L.Ed.2d at 190.
Idaho cases have described "reasonable doubt" as not being a fanciful or imaginary doubt. See State v. Taylor, 76 Idaho 358, 361-62, 283 P.2d 582, 584-85 (1955) (approving an instruction stating that a reasonable doubt is not "a flimsy, fanciful, fictitious doubt which you could raise about anything and everything"); State v. Levy, 9 Idaho 483, 496, 75 P. 227, 231 (1904) (a reasonable doubt is not "a mere imaginary, captious or possible doubt"); People v. Dewey, 2 Idaho 79, 82, 6 P. 103, 106 (1885) (approving an instruction stating that a reasonable doubt is not "a mere possible doubt, nor is it a captious or imaginary doubt"). Also, the Idaho Criminal Jury Instructions define "reasonable doubt" as not "mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible
In Merwin the Court addressed the issue of whether a "proof beyond a reasonable doubt" jury instruction that said the prosecution is not required to overcome "every possible doubt" misstated the law. The Court stated:
131 Idaho at 647, 962 P.2d at 1031. The jury instruction in Merwin was taken from the Federal Judicial Center's Pattern Criminal Jury Instructions.
The instruction given by the district court adequately states the law for reasonable doubt. The sentence in which the possible doubt language is found states, "There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof which overcomes every possible doubt." In context, the phrase "every possible doubt" is clearly linked to the idea of "absolute certainty." The message to the jury is that doubts that are possible, although not at all reasonable, and that prevent a knowledge to an absolute certainty, do not preclude a juror finding a defendant guilty. The first and last sentence of the paragraph also refer to "reasonable" doubts as those doubts that exonerate a defendant, reinforcing the proper interpretation of the word "possible." This instruction, when taken as a whole, does not lessen the State's burden of proof.
Despite the ruling in this case there appears to be no reason to depart from the standard instruction set forth in Idaho Criminal Jury Instructions 103 and approved for use by this Court. Such departures have created unnecessary controversies with nothing added by way of clarity. The instruction in this case is adequate but is, if anything, less clear than the accepted instruction. Trial courts are encouraged to avoid unnecessary appeals and controversy by utilizing the instruction that has an accepted history defining the burden the State bears.
SHEAHAN'S ADDITIONAL ASSIGNMENTS OF ERROR IN THE "REASONABLE DOUBT" JURY INSTRUCTION HAVE BEEN WAIVED
Sheahan also argues for the first time to this Court that the reasonable doubt instruction lessens the State's burden of proof because of the "willing to act" and "ordinary person" language, as well as the absence of the phrase "moral certainty." However, where a party appeals the decision of an intermediate appellate court, the appellant may not raise issues that are different from those presented to the intermediate court. State v. Harris, 132 Idaho 843, 847, 979 P.2d 1201, 1205 (1999). Sheahan did not raise these issues in the Court of Appeals, and the arguments with regard to these alleged errors have been waived.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT ADMITTED EVIDENCE OF AN INCIDENT BETWEEN SHEAHAN AND AN OFFICER
Sheahan argues that the district court incorrectly admitted evidence of an incident between a police officer and Sheahan that occurred about five weeks before the shooting. For a defendant's other crimes, wrongs, or acts to be admissible under I.R.E. 404(b), a two-tier test must be met. State v. Law, 136 Idaho 721, 726, 39 P.3d 661, 666 (Ct.App.2002). First, the evidence must be found relevant to a material and disputed issue in the case. Id. at 726, 39 P.3d at 666; State v. Cannady, 137 Idaho 67, 72, 44 P.3d 1122, 1127 (2002). Second, the court must find that the probative value of the evidence presented is not substantially outweighed by the danger of unfair prejudice. Law, 136 Idaho at 726, 39 P.3d at 666; Cannady, 137 Idaho at 72, 44 P.3d at 1127; I.R.E. 403.
To satisfy the relevancy test for the admissibility of prior acts under Rule 404(b), the Court must find that the evidence is admissible for a purpose other than to prove a defendant's character or to show that he or she acted in conformity with that character. Cannady, 137 Idaho at 72, 44 P.3d at 1127; I.R.E. 404(b). Rule 404(b) of the Idaho Rules of Evidence provides that evidence of other crimes, wrongs, or acts may be admissible for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. I.R.E. 404(b).
The details of the incident Sheahan seeks to exclude are as follows: On February 22, 1999, five and one-half weeks before Sheahan shot Fernquist, a police officer named Todd McDevitt was looking for a juvenile
This incident is relevant to the existence of premeditation or plan. The two events involved similar events and "victims," from Sheahan's perspective. Both incidents involved an authority that could take him into custody who came to his residence after his failure to appear at pretrial conferences and after warrants were issued for his arrest. That Fernquist was not in a police uniform is not an important distinction as Sheahan knew him. Neither is it important that Officer McDevitt was not seeking to take Sheahan into custody because Sheahan would not have known that. Sheahan responded in both instances by pointing a gun in the direction of the authority figure.
The second prong is whether the probative value of this evidence would be substantially outweighed by the danger of unfair prejudice. The probative value of this incident is great in that it is strong evidence from which premeditation for the charged crime could be inferred. The prejudicial effect of this evidence is that the jury could improperly consider this evidence as showing conformity with a violent character, despite the limiting instruction given by the district court. The evidence portrays Sheahan as a potentially violent person, willing to resort to deadly force. On balance the district court did not abuse its discretion in determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.
EVIDENCE THAT FERNQUIST DID NOT USE A WEAPON SHOULD NOT HAVE BEEN ADMITTED BUT WAS HARMLESS
A. Standard of Review
This Court reviews a district court's conclusion that evidence is supported by proper foundation under an abuse of discretion standard. State v. Groce, 133 Idaho 144, 146, 983 P.2d 217, 219 (Ct.App.1999).
Sheahan argues that the testimony from Fernquist's business partner that Fernquist never used a weapon to take anyone into custody was inadmissible habit evidence. At trial he objected on the grounds of lack of foundation.
Generally, this Court will not consider an alleged error on appeal unless a timely objection to the alleged error was made at trial. State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989); I.R.E. 103(a)(1). For an objection to be preserved for appellate review, either the specific ground for the objection must be clearly stated, State v. Norton, 134 Idaho 875, 880, 11 P.3d 494, 499 (Ct.App.2000), or the basis of the objection must be apparent from the context. State v. Cannady, 137 Idaho at 72, 44 P.3d at 1127. "Objection to the admission of evidence on one basis does not preserve a separate and different basis for exclusion of the evidence." Norton, 134 Idaho at 880, 11 P.3d at 499. This Court, however, may consider fundamental error in a criminal case, even where no objection was made at trial. Bingham, 116 Idaho at 423, 776 P.2d at 432.
Sheahan's counsel objected at trial to the admission of the testimony regarding Fernquist's use of weapons on the grounds of lack of foundation. The response of the district court to the objection shows that it considered the objection as going to personal knowledge under Rule 602 of the Idaho Rules of Evidence. Where an objection has been found not to be preserved, the objection argued on appeal was either distinct from that raised below or the evidence objected to below and on appeal was substantially different. See, e.g., Cannady, 137 Idaho at 72, 44 P.3d at 1127 (holding that objection to annotations and references to past crimes of defendant in a book on Rule 404(b) grounds was not preserved where below the book in general was objected to as irrelevant, with no mention of any specific content or annotations); Norton, 134 Idaho at 880, 11 P.3d at 499 (holding that lack of foundation objection to an enlarged comparative fingerprint card on appeal was not preserved below where objection on grounds of best evidence was made). The objection at the trial court in this case was not specific but the foundation objection overlaps sufficiently with the habit evidence argument on appeal to preserve the objection.
A habit is a person's regular practice of responding to a particular situation with a specific kind of conduct. State v. Rodriguez, 118 Idaho 948, 951, 801 P.2d 1299, 1302 (Ct.App.1990). Fernquist's business partner testified that Fernquist had never taken a bail jumper into custody. Consequently, he could not say how Fernquist had acted in a situation similar to the circumstances present in attempting to apprehend Sheahan. There was clearly no foundation for habit evidence. Equally clear, the jury knew that fact.
Arguably the objection could have been made on the basis that the evidence was inadmissible character evidence. The introduction of character evidence of a victim is governed by Idaho Rule of Evidence 404(a)(2) which permits "evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor." No objection to the evidence as character evidence was made at trial. The objection to foundation is not broad enough to encompass a 404(a)(2) objection. Therefore, the Court will not consider the issue.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE MOTION FOR CHANGE IN VENUE
Sheahan argues that he was denied a fair trial and a fair and impartial jury because of (1) prejudicial pretrial publicity, (2) pervasive community prejudice, (3) juror bias and exposure to publicity, (4) the short amount of time between publicity and trial, and (5) the extent of governmental influence on the publicity. As such, he asserts that the district court abused its discretion in denying his motion to change venue.
A. Standard of Review
The Court employs an abuse of discretion standard when reviewing a district court's ruling on a motion to change the venue. State v. Jones, 125 Idaho 477, 484, 873 P.2d 122, 129 (1994). To determine whether a trial court has abused its discretion, the Court considers whether it correctly perceived the issue as discretionary, whether it acted within the boundaries of its discretion and consistently with applicable legal standards, and whether it reached its decision by an exercise of reason. Lamar Corp. v. City of Twin Falls, 133 Idaho 36, 40, 981 P.2d 1146, 1150 (1999).
It is Sheahan's burden to show that there was a reasonable likelihood that prejudicial news coverage prevented a fair trial in violation of the Sixth Amendment to the United States Constitution. State v. Hall, 111 Idaho 827, 829, 727 P.2d 1255, 1257 (Ct.App.1986). To determine whether a change in venue was warranted, the Court determines whether, in the totality of existing circumstances, juror exposure to pretrial publicity resulted in a trial that was not fundamentally fair. State v. Winn, 121 Idaho 850, 856, 828 P.2d 879, 885 (1992). The Court considers the following factors when reviewing a district court's exercise of discretion regarding a motion for change of venue: the existence of affidavits indicating prejudice or an absence of prejudice in the community where the trial took place; the testimony of the jurors at jury selection regarding whether they had formed an opinion based upon adverse pretrial publicity; whether the defendant challenged for cause any of the jurors finally selected; the nature and content of the pretrial publicity; and the amount of time elapsed between the pretrial publicity and the trial. Id. When reviewing the nature and content of the pretrial publicity, this Court is concerned with the accuracy of the pretrial publicity, the number of articles, and whether the articles will condition the jurors to accept a particular version of the facts at trial. Hall, 111 Idaho at 829-30, 727 P.2d at 1257-58. A prospective juror's assurance that he or she is impartial is a consideration in reviewing the record, although such an assurance is not dispositive. Id. at 830, 727 P.2d at 1258.
B. The Decision
The State contends that Sheahan did not preserve for appellate review all of the arguments he now presents as to why he was not given a fair trial, maintaining that the only argument made at trial was that unfair pretrial publicity and community prejudice as evidenced by affidavit would create an unfair trial. However, it is clear that the trial judge considered all of the arguments made by Sheahan on appeal either in the pretrial hearing or in the order denying the motion to change venue. The trial judge recognized and addressed these issues as falling within the factors to be considered. Therefore, the arguments will be considered.
Sheahan produced several newspaper articles from Pinehurst and neighboring areas that discussed the case prior to trial. Several articles contained some information that may have been incorrect and information which ultimately was excluded at trial, but the district court found the articles to be mostly factual.
A review of the totality of the circumstances indicates that the district court properly exercised its discretion in denying the change of venue. The record supports the district court's determination that a fair and
The record does not show that the circumstances of this case deprived Sheahan of a fundamentally fair trial. He has not shown that the case was tried in an atmosphere so inflamed by publicity that the indicia of juror impartiality developed during voir dire should be disregarded. See id.
THE DISTRICT COURT DID NOT ERR AS A MATTER OF LAW IN FINDING ADMISSIBLE EVIDENCE THAT SHEAHAN REMOVED BAGS PLACED ON HIS HANDS BY LAW ENFORCEMENT
Sheahan argues that the district court abused its discretion in admitting evidence that he removed plastic bags placed on his hands by law enforcement. He says that the evidence is not relevant and that the danger of unfair prejudice substantially outweighs the probative value of the evidence.
A. Standard of Review
I.R.E. 404(b) allows evidence of other acts if admitted for the purpose of showing knowledge or consciousness of guilt. The Court engages in a two-tiered inquiry when considering the admissibility of acts of the defendant other than the charged crime. The first test is that the evidence must be relevant. The second inquiry is whether the prejudicial effect outweighs the probative value.
B. The Event
On the day Sheahan was arrested for the shooting incident, he had handcuffs placed on him as well as bags over his hands. The jailer noticed that Sheahan had taken the bags off his hands. The jailer told him that he was not to remove the bags, and then handcuffed Sheahan behind his back instead of in front of his body. The jailer again placed the bags over Sheahan's hands. Later that day, Sheahan poked his fingers through the bags so that his hands were no longer covered by the bags.
Sheahan argues that this evidence is not relevant, because it is undisputed that he shot Fernquist and because the evidence could not show premeditation. However, an inference could be drawn from the incident that Sheahan was trying to destroy evidence. The evidence was relevant. There are other possible explanations, but they go to weight rather than relevance.
The second test is also met. The district court balanced the probative value and the potential for unfair prejudice before admitting the evidence. The district court did not abuse its discretion in finding that the probative value was not outweighed by the danger of unfair prejudice.
THE PROSECUTOR'S STATEMENT DURING CLOSING ARGUMENT THAT DEFENSE COUNSEL HAD MISLED AND LIED WAS IMPROPER BUT DOES NOT CONSTITUTE REVERSIBLE ERROR
Sheahan argues that the prosecution's statements during closing arguments suggesting that defense counsel misled and lied to the jury violated his right to due process and a fair trial. He claims that prosecutorial misconduct requires this Court to vacate his sentence.
No objection was stated by the defense or ruling made at the time the objectionable statements were made in the district court. This Court is reviewing the record for fundamental error. A conviction will be set aside for prosecutorial misconduct only when the conduct is sufficiently egregious as to result in fundamental error. State v. Hairston, 133 Idaho 496, 507, 988 P.2d 1170, 1181 (1999). Prosecutorial misconduct rises to the level of fundamental error if it is "calculated to inflame the minds of jurors and arouse passion or prejudice against the defendant, or is so inflammatory that the jurors may be influenced to determine guilt on factors outside the evidence." State v. Babb, 125 Idaho 934, 942, 877 P.2d 905, 913 (1994). More specifically, "[p]rosecutorial misconduct during closing arguments will constitute fundamental error only if the comments were so egregious or inflammatory that any consequent prejudice could not have been remedied by a ruling from the trial court informing the jury that the comments should be disregarded." State v. Cortez, 135 Idaho 561, 565, 21 P.3d 498, 502 (Ct.App.2001).
B. The Statements
Sheahan points specifically to statements by the prosecution during closing arguments that defense counsel "tried to hide the facts and to mislead" the jury,
Both sides have traditionally been afforded considerable latitude in closing argument to the jury and are entitled to discuss fully, from their respective standpoints, the evidence and the inferences to be drawn therefrom. State v. Martinez, 136 Idaho 521, 525, 37 P.3d 18, 22 (Ct.App.2001). This includes a right to express how, from each party's perspective, the evidence confirms or calls into doubt the credibility of particular witnesses. State v. Priest, 128 Idaho 6, 14, 909 P.2d 624, 632 (Ct.App.1995).
It is improper, however, for the prosecution to express a personal belief as to the credibility of witnesses, unless the comment is based solely on inferences from evidence presented at trial. State v. Porter, 130 Idaho 772, 786, 948 P.2d 127, 141 (1997). Likewise, it is misconduct for the prosecution to make personal attacks on defense counsel in closing argument. See State v. Page, 135 Idaho 214, 223, 16 P.3d 890, 899 (2000); United States v. Young, 470 U.S. 1, 9 & n. 7, 105 S.Ct. 1038, 1043 & n. 7, 84 L.Ed.2d 1, 8 (1985).
The threshold question is whether Sheahan may claim on appeal that the statements constituted misconduct when he did not object to them at the time they were made. "When a party fails to preserve an issue for appeal via a timely objection, the issue will only be reviewed and reversed on appeal if it constitutes fundamental error." State v. Lovelass,
The prosecutor's comments during closing argument that defense counsel had misled and lied to the jury were improper. It would appear that the comments were intended to inflame the minds of jurors and arouse passion or prejudice against the defendant based upon asserted misconduct of defense counsel. See Babb, 125 Idaho at 942, 877 P.2d at 913. However, from the context of the statements by the prosecutor it appears that he was analyzing the credibility of defense counsel's evidence and the inferences that defense counsel was making from that evidence. The statements were improper, but no limiting instruction was requested. While improper, they do not rise to the level of a fundamental error warranting reversal.
THE JURY INSTRUCTION ON PREMEDITATION FAIRLY AND ADEQUATELY STATED THE LAW
Sheahan argues that the instruction for premeditation misstated the law as it improperly focused the jurors' inquiry on whether his act was a "mere unconsidered and rash impulse" to the exclusion of other acts short of premeditation. Also, he argues that it was reversible error not to include in the instruction that premeditation includes a weighing of the consequences of one's actions.
A. Standard of Review
When reviewing jury instructions, this Court must determine whether "the instructions, as a whole, fairly and adequately present the issues and state the law." Silver Creek Computers, Inc. v. Petra, Inc., 136 Idaho 879, 882, 42 P.3d 672, 675 (2002). An erroneous instruction does not constitute reversible error unless the instructions, when taken as a whole, misled the jury or prejudiced a party. Id. at 882, 42 P.3d at 675; State v. Nath, 137 Idaho 712, 716, 52 P.3d 857, 861 (2002). In addition, a defendant may not challenge on appeal the failure to give a jury instruction that was not requested at trial, unless the failure constitutes fundamental error. State v. Gomez, 126 Idaho 83, 85, 878 P.2d 782, 784 (1994). Fundamental error is that error which "so profoundly distorts the trial that it produces manifest injustice and deprives the accused of his constitutional right to due process." State v. Mauro, 121 Idaho 178, 180, 824 P.2d 109, 111 (1991) (quoting State v. Morris, 116 Idaho 834, 836, 780 P.2d 156, 158 (Ct.App.1989)).
B. The Instruction
The alleged omissions in the jury instruction definition of "premeditation" were not requested by the defense at trial. The defendant's requested jury instructions included no definition for the term "premeditation." Regardless, the instruction in this case fairly and adequately states the law. Instruction 13(a) included the following definition for premeditation:
It was not error for the district court to use this instruction. The Idaho Supreme Court has approved the exact premeditation language used in instruction 13(a) as a pattern jury instruction. See I.C.J.I. 705; State v. Avila, 137 Idaho 410, 414, 49 P.3d 1260, 1264 (Ct.App.2002).
THE DISTRICT COURT DID NOT ERR IN GIVING THE LIMITING INSTRUCTION ON THE INCIDENT BETWEEN SHEAHAN AND OFFICER MCDEVITT
The district court gave a limiting instruction concerning the incident between Sheahan
THE JURY INSTRUCTION REGARDING THE SCOPE OF AUTHORITY FOR BAIL BONDSMEN DOES NOT CONTAIN A DEFECT, AMBIGUITY, OR GAP
Sheahan argues that the district court abused its discretion in responding to questions submitted by the jury, maintaining that the jury's questions show a defect or gap in the instructions regarding the scope of a bail bondsman's authority, and that the district court's failure to cure this defect constitutes reversible error.
A. Standard of Review
The district court's decision whether or not to give further instructions in response to jurors' questions is discretionary. I.C.R. 30(c). Therefore, this Court reviews such a decision under an abuse of discretion standard.
The Court exercises free review over a district court's determination as to whether jury instructions contain a defect, ambiguity, or gap with respect to its statements on the law. See Clark, 137 Idaho at 156, 45 P.3d at 812; State v. Pinkney, 115 Idaho 1152, 1154, 772 P.2d 1246, 1248 (Ct.App.1989).
In Pinkney, the Court of Appeals outlined a district court's responsibility when responding to jurors' questions:
115 Idaho at 1154, 772 P.2d at 1248.
B. The Instruction
The jury provided the district court with the following question: "If a person with a warrant on him is alluding [sic] arrest, can there be an entrance from a bondsman into the place where a suspect is known to be without a search warrant?" The prosecution argued that the court should further instruct the jury as to the inapplicability of the constitutional restrictions to a private person, as it appeared that the jury was confusing the restrictions placed on state actors with those on a private person. Defense counsel objected to any further instruction. The district court found that instruction 15(c), which addressed the authority and means by which a bondsman may apprehend a defendant for which bail was provided, adequately stated the law and represented no gap, defect or ambiguity.
It was discovered that some jurors did not have instruction 15(c), so the court assured that all jurors obtained a copy. The district court, however, refused to answer further questions as to the interpretation of 15(c), stating essentially that the instruction spoke for itself.
The instruction in this case contains no defect, ambiguity or gap. The instruction reflects statutory and common law authority granted to bail bondsmen. Idaho Code section 19-2925 states, "For the purpose of surrendering the defendant, the bail, at any time before they are finally discharged, and at any place within the state, may themselves arrest him, or by a written authority endorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so." The United States Supreme Court has also described the broad authority granted bail bondsmen when ensuring the surrender of a defendant.
Taylor v. Taintor, 16 Wall. 366, 83 U.S. 366, 371-72, 21 L.Ed. 287, 290 (1872) (footnotes omitted). The jury instruction at issue fairly and accurately reflects the law as established by these sources. In addition, the district
Sheahan insists that an instruction should have provided the law as to arrests made under state authority.
Sheahan relies on Maynard v. Kear, 474 F.Supp. 794 (N.D.Ohio 1979), in which the court found that bondsmen were acting under state authority, and, thus, subject to the requirements of the Fourth Amendment, when they entered the defendant's residence. However, the evidence in that case clearly showed that the bondsmen not only possessed a state bench warrant, but that throughout the incident they acted or purported to be acting under the authority of that warrant. Id. at 800. The court in Maynard in fact affirmed the principle that a bondsman, when making an arrest, "need not obtain a warrant ... [and] can use force, if necessary." Id. at 802.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN SENTENCING
Sheahan argues that his sentence of life with a twenty year fixed term is excessive and unreasonable because he does not have a history of violence, there is no reason to find he would commit this kind of crime again, he could be rehabilitated, he still has a "moral compass," the shooting was relatively spontaneous, and he showed remorse.
A. Standard of Review
Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and thus, a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence fixed within the limits prescribed by the statute will ordinarily not be considered an abuse of discretion by the trial court. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence, however, may represent an abuse of discretion if it is shown to be unreasonable upon the facts of the case. Id. at 90, 645 P.2d at 324. A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary "to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case." State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). A sentence of confinement fixed for longer than necessary to accomplish these purposes is unreasonable. Id. at 568, 650 P.2d at 710. Where an appellant contends that the sentencing court imposed an excessively harsh sentence, the Court conducts an independent review of the record, having regard for the nature of the offense, the character of the offender and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct.App.1982).
When a jury finds a defendant guilty of first degree murder, the district court must impose a life sentence with a minimum determinate term of ten years. I.C. § 18-4004. The district court imposed a life sentence with a minimum fixed term of twenty years, which sentence falls within the statutory guidelines. The district court considered each of the objectives of criminal punishment: protection of society, punishment, deterrence, and rehabilitation. See Toohill, 103 Idaho at 568, 650 P.2d at 710. The district court found that the factors of protection of society and rehabilitation did not weigh against Sheahan, because he did not have a history of violence and there was potential for rehabilitation. With regard to punishment, the district court stated, "certainly this is a grave offense, and punishment has to be met." The most important factor, however, was clearly deterrence. The district court stated that deterrence was a major factor, far more important than punishment, because "this was a bondsman basically trying to enforce the law, and the violence was directed against a person who was essentially trying to enforce what society believes is important in order for society to function."
The factors that Sheahan says the district court ignored were in fact considered under the factors of protection of society and rehabilitation, and the district court in fact found these factors weighed in favor of Sheahan. The district court based its decision on the goals of punishment and deterrence. A sentence need not serve all sentencing goals; one may be sufficient. State v. Waddell, 119 Idaho 238, 241, 804 P.2d 1369, 1372 (Ct.App.1991). In addition, deterrence falls under the "primary consideration" in sentencing, which is "the good order and protection of society." Toohill, 103 Idaho at 568, 650 P.2d at 710 (quoting State v. Moore, 78 Idaho 359, 363, 304 P.2d 1101, 1103 (1956)). Also, the nature of the offense is egregious. Sheahan used lethal force to evade arrest by a person authorized by law to arrest him. The reasons given by the district court for the sentence were sufficient to justify its sentence. The district court did not abuse its discretion in ordering a life sentence with a twenty year fixed term.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING SHEAHAN'S MOTION TO REDUCE HIS SENTENCE
Sheahan argues that the district court's denial of his motion for reduction of his sentence was an abuse of discretion because his sentence was excessive as originally imposed. A request for a reduction in sentence is essentially a plea for leniency, which may be granted if the sentence originally imposed was unduly severe. State v. Villarreal, 126 Idaho 277, 281, 882 P.2d 444, 448 (Ct.App.1994). If the sentence was not excessive when pronounced, and the defendant failed to show that it was excessive in light of new or additional information presented with the motion, then the denial of the motion is not an abuse of discretion. Id. at 281, 882 P.2d at 448.
Sheahan presented no new information in support of his motion for reduction of sentence under I.C.R. 35. The sentence was not excessive when pronounced, and the district court's denial of the motion to reduce sentence was not an abuse of discretion.
THERE IS SUBSTANTIAL COMPETENT EVIDENCE TO SUPPORT THE JURY CONVICTION OF FIRST DEGREE MURDER
Sheahan argues that the State did not present credible evidence of premeditation to sustain a conviction of any crime greater than manslaughter.
A. Standard of Review
This Court will not overturn a judgment of conviction, entered upon a jury verdict, where there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of a crime beyond a reasonable doubt. State v. Johnson, 136 Idaho 701, 704, 39 P.3d 641, 644
B. The Evidence
For first degree murder to be proven, it must be shown that the killing was "willful, deliberate and premeditated." I.C. § 18-4003(a). Direct evidence of a deliberate and premeditated purpose to kill is not required; such a purpose may be inferred from the facts and circumstances of the killing. State v. Wolfe, 107 Idaho 676, 679, 691 P.2d 1291, 1294 (Ct.App.1984). Additionally, premeditation does not require any appreciable space of time between the intention to kill and the killing; rather, it "may be as instantaneous as successive thoughts of the mind." Carey v. State, 91 Idaho 706, 710, 429 P.2d 836, 840 (1967) (quoting State v. Shuff, 9 Idaho 115, 126, 72 P. 664, 668 (1903)).
Sheahan relies on State v. Erwin, 98 Idaho 736, 572 P.2d 170 (1977), for the standard that should be applied when reviewing a jury's conviction of a crime, arguing that if a conviction is based on circumstantial evidence alone, the "circumstantial evidence must be not only consistent and compatible with the guilt of an accused, but it must also be inconsistent with any reasonable theory of his innocence." Id. at 740-41, 572 P.2d at 174-75 (quoting State v. Wilson, 62 Idaho 282, 284, 111 P.2d 868, 868 (1941)). However, in State v. Humpherys, 134 Idaho 657, 661-62, 8 P.3d 652, 656-57 (2000) this Court stated the following:
Despite the logic of Humpherys, Sheahan says his conviction should be vacated because the circumstantial evidence could have been interpreted in favor of his claim of self-defense or defense of habitat. The argument fails under Humpherys and would fail in any event because the conviction was not based solely on circumstantial evidence. The fact of the killing itself is not based on circumstantial evidence. Sheahan shot Fernquist, and Fernquist is dead. The evidence must be analyzed on the basis of whether there was proof beyond a reasonable doubt, whether that evidence be direct or circumstantial.
There is substantial evidence supporting the jury's verdict. Fernquist had been looking for Sheahan for several months prior to the shooting. Sheahan had failed to appear for pretrial conferences and had warrants out for his arrest. He should have known that Fernquist or the police were looking for him. Fernquist had spoken with several of Sheahan's friends and neighbors and left business cards with them. Two of Fernquist's business cards were found in the top drawer of Sheahan's dresser. Sheahan would likely have known Fernquist when he entered his residence as they had met before. Sheahan showed his desire to evade legal action against him by ignoring pretrial conference appointments and evading those that posted bail for him, from which the jury could find his willingness to again try to evade arrest when Fernquist appeared. This inference is supported by testimony that material was taped over the windows in Sheahan's residence and bags had been placed over the lights in his residence. The jury could determine from the incident where Sheahan pointed a gun at the door where an officer stood that he had premeditated or planned to kill anyone who sought to apprehend him on the warrants, including Fernquist. The evidence also shows that Sheahan removed bags
THE DISTRICT COURT DID NOT ERR IN DENYING THE MOTION FOR NEW TRIAL
Sheahan argues that a new trial should be granted under the "cumulative error" doctrine. The cumulative error doctrine refers to an accumulation of irregularities, each of which by itself might be harmless, but when aggregated, show the absence of a fair trial in contravention of the defendant's constitutional right to due process. State v. Paciorek, 137 Idaho 629, 635, 51 P.3d 443, 449 (Ct.App.2002). In order to find cumulative error, this Court must first conclude that there is merit to more than one of the alleged errors and then conclude that these errors, when aggregated, denied the defendant a fair trial. Lovelass, 133 Idaho at 171, 983 P.2d at 244. Errors in the admission of evidence will be deemed harmless if the appellate court is able to say, beyond a reasonable doubt, that the jury would have reached the same result absent the errors. State v. Moore, 131 Idaho 814, 821, 965 P.2d 174, 181 (1998); State v. Brazzell, 118 Idaho 431, 435, 797 P.2d 139, 143 (Ct.App.1990). There is no accumulation of errors in this case.
The judgment and sentence of the district court is affirmed.
Chief Justice TROUT, Justices WALTERS, KIDWELL and EISMANN, concur.
Federal Judicial Center, Pattern Criminal Jury Instructions 28 (1988).