State v. McDermott

505 P.3d 678

STATE of Idaho, Plaintiff-Respondent,

v.Michael Ryan MCDERMOTT, Defendant-Appellant.

Docket No. 47642

Supreme Court of Idaho, Boise, November 2021 Term.

Opinion Filed: March 1, 2022

Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant Michael Ryan McDermott. Jenevieve C. Swinford argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent State of Idaho. Kale Gans argued.

STEGNER, Justice.

Michael McDermott appeals his conviction for second-degree murder. McDermott arrived at his ex-girlfriend's home late at night in the hopes of obtaining methamphetamine. After finding another man, Robert Waholi, inside the ex-girlfriend's recreational vehicle ("RV"), McDermott slammed his ex-girlfriend's head twice in her front door, causing her to fall. McDermott exited the RV and then, a few moments later, Waholi came out carrying a large double-edged axe. McDermott shot Waholi through the heart, killing him. McDermott eventually confessed to the police that he had killed Waholi; however, he claimed he was acting in self-defense.

At trial, the district court instructed the jury on McDermott's self-defense theory, including an instruction that the jury could not find McDermott acted in self-defense if it found that McDermott was the "initial aggressor" in the altercation with Waholi. McDermott objected both to the "initial aggressor" instruction itself as well as the wording of the instruction. The district court also instructed the jury using Idaho Criminal Jury Instruction 702 on "malice," the requisite intent needed for second-degree murder. During its deliberations, the jury asked for clarification on malice, which the district court provided over McDermott's objection. The jury ultimately found McDermott guilty of second degree-murder. McDermott timely appealed. For the reasons discussed below, we vacate McDermott's conviction and remand the case for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

It is undisputed that, early in the morning of March 15, 2019, McDermott shot and killed Waholi. Alicia Flynn had previously dated both McDermott and Waholi but was not actively dating either man in March 2019. The night before the shooting, March 14, 2019, at around 7:00 or 8:00 p.m., Waholi arrived at Flynn's home—an RV trailer parked at Evergreen Towing. Waholi and Flynn reconciled, used methamphetamine, and eventually went to bed. That same night, around 10:00 p.m., Flynn was also communicating with McDermott through text messages. Flynn was planning to move from Idaho to California, but her RV was not in drivable condition. She planned to clean up the RV in order to sell it, and McDermott offered to bring Flynn some cleaning supplies in exchange for drugs.

McDermott arrived at Flynn's RV hours later, around 3:00 a.m. the morning of March 15, 2019. At that time, Flynn and Waholi were already in bed and about to go to sleep. McDermott knocked on the trailer door and, though she initially ignored the knocking due to the late hour, Flynn eventually answered the door. McDermott and Flynn then walked through the grounds of Evergreen Towing to a different trailer to ask its occupant for drugs. When the occupant of the other trailer did not answer the door, both McDermott and Flynn walked back to Flynn's RV. McDermott was aware that Flynn had a male guest in her RV and, as the two walked back to her RV, he asked her who it was. Flynn responded, "The Easter Bunny, Santa Claus. It's none of your business." Once they were back at the RV, McDermott opened the door and asked who was inside. Waholi answered that he was in the RV.

After this exchange, Flynn attempted to get inside the RV but McDermott slammed her head inside the door twice.¹ As Flynn fell inside the RV and held her head, Waholi got out of bed and McDermott walked away from the door. While McDermott was outside, Waholi grabbed a large, double-edged axe and left the RV. McDermott then shot Waholi through the heart, killing him. The amount of time that elapsed between Flynn's head getting slammed in the door and the gunshot is disputed.

The State obtained an indictment charging McDermott with second-degree murder.² McDermott pleaded not guilty, and the case was set for trial. The jury trial began on September 30, 2019, and lasted for five days, ending on October 4, 2019. The crux of the case at trial was whether McDermott shot Waholi in self-defense. In his opening statement, McDermott's attorney told the jury that after Flynn was hit with the door,

[t]he door bounced open. You'll see the trailer. It's a flimsy door that opens out, and [McDermott] kicked it shut again. [McDermott] left. He was walking away. The door was shut. [Waholi] threw open the door, came at [McDermott] with a double-headed axe raised over his head. [McDermott] thought he was going to die. He was going to get that axe in his forehead. He shot him in the heart. He stood his ground.

When you hear all of the evidence, you will find Michael McDermott exercised his right to defend himself and find him not guilty of second degree murder.

McDermott testified in his own defense. McDermott testified that everything "happened in seconds" and that he "thought [Waholi] was going to chop him with an axe." He further testified that he believed Waholi was an immediate threat and he thought he was going to die.

After the close of evidence, the parties and the district court took up the issue of the final jury instructions. The district court stated it

intend[ed] to instruct the jury that the first issue is whether they find that the killing in this case was justified by self-defense; and if they do, they stop. ... But if they do not, if they find that self-defense doesn't apply, then [ ] McDermott could be found guilty of second degree murder, he could be found guilty of voluntary manslaughter because the [c]ourt finds there was testimony about – you could find heat of passion – and they could find that the killing was without malice aforethought. That's the only difference between second degree murder and voluntary manslaughter.

Prior to trial, the State had drafted a jury instruction that stated a defendant is not entitled to claim self-defense if he was the initial aggressor and did not withdraw from the original conflict or communicate that withdrawal. The instruction stated in full:

If you believe from the evidence beyond a reasonable doubt, that the defendant was the initial aggressor, then for him to be justified in using self-defense to commit the homicide, you must find all of the following occurred:

1. The defendant first withdraws from further aggressive action, and;

2. The defendant communicates his withdrawal from further aggressive action to the victim by word or act.

The "initial aggressor" is the person who first acts in such a manner that creates a reasonable belief in another person's mind that deadly force is about to be used on that other person. The actual striking of the first blow or inflicting of the first wound, however, does not necessarily determine who the initial aggressor was. Arguing, using abusive language, calling a person names or the like unaccompanied by physical threats or acts does not make a person an initial aggressor and does not justify physical force.

The district court, however, crafted its own instruction on the initial aggressor theory, "Instruction No. 22," which stated: "A person is not entitled to claim self-defense when he or she was the aggressor or the one who provoked the altercation in which another person is killed unless such person in good faith first withdraws from further aggressive action."

McDermott objected to the jury being instructed on the initial aggressor theory because the testimony had not established McDermott did anything to raise a "threat or specter of deadly force" against Waholi, thereby rendering the instruction unnecessary. McDermott further argued that, if the district court was going to overrule his first objection, the State's proposed instruction stated the law more clearly. The district court overruled both of McDermott's objections. The district court also rejected the State's proposed instruction (quoted above) and instructed the jury with its own Instruction No. 22.

During deliberations, the jury sent a question to the district court, which stated, "We are confused on the definition of malice."

They asked for an additional definition, and further asked if they could "look up the definition outside [the deliberation] room at home or on the internet." McDermott objected to giving the jury any additional instructions, arguing that the jury was already fully instructed on the applicable law. The district court stated it "would like to give the jury something," and opted to instruct the jury over McDermott's objection. The district court then read "Instruction No. 29," which stated that " ‘[m]alice’ is the intentional doing of a wrongful act without legal cause or excuse."

The jury found that McDermott had not acted in self-defense. The jury further found that McDermott was guilty of second-degree murder. The district court entered a judgment of conviction on December 3, 2019, sentencing him to 25 years, with ten of those years fixed. McDermott timely appealed.

II. STANDARD OF REVIEW

"The district court's decision whether or not to give further instructions in response to jurors’ questions is discretionary." State v. Sheahan , 139 Idaho 267, 282, 77 P.3d 956, 971 (2003) (" Sheahan I "). "Therefore, this Court reviews such a decision under an abuse of discretion standard." Id.

When reviewing a lower court's decision for an abuse of discretion, this Court must analyze ‘whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason.’

State v. Bodenbach , 165 Idaho 577, 591, 448 P.3d...