419 P.3d 1042 (Idaho 2018), 31528, State v. Hall

Docket Nº:31528, 41059
Citation:419 P.3d 1042, 163 Idaho 744
Opinion Judge:BRODY, Justice
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Erick Virgil HALL, Defendant-Appellant. Erick Virgil Hall, Petitioner-Appellant, v. State of Idaho, Respondent.
Attorney:Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Ian H. Thomson argued. Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. L. Lamont Anderson argued.
Judge Panel:Chief Justice BURDICK and Justice JONES concur. HORTON, J., dissenting. KIDWELL, J. Pro Tem, dissenting.
Case Date:April 11, 2018
Court:Supreme Court of Idaho
 
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419 P.3d 1042 (Idaho 2018)

163 Idaho 744

STATE of Idaho, Plaintiff-Respondent,

v.

Erick Virgil HALL, Defendant-Appellant.

Erick Virgil Hall, Petitioner-Appellant,

v.

State of Idaho, Respondent.

Nos. 31528, 41059

Supreme Court of Idaho

April 11, 2018

Rehearing Denied: June 28, 2018

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Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Thomas F. Neville, District Judge.

The judgments of conviction and the order dismissing the post-conviction petition are affirmed.

Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Ian H. Thomson argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. L. Lamont Anderson argued.

OPINION

BRODY, Justice

Erick Virgil Hall was convicted of first-degree murder, first-degree kidnapping, and rape. He was sentenced to death for murder and to consecutive, fixed life terms for first-degree kidnapping and rape. Hall petitioned for post-conviction relief, alleging numerous errors at trial. Hall’s petition for post-conviction relief was summarily dismissed. Hall’s direct and post-conviction appeals are consolidated pursuant to Idaho Code section 19-2719(6). We affirm the judgments of conviction and the order dismissing the post-conviction petition.

  1. FACTUAL AND PROCEDURAL BACKGROUND

On September 24, 2000, Lynn Henneman disappeared after going for an evening walk in Boise. Ms. Henneman, a flight attendant from New York, was laid over in Boise that day. She and the rest of the flight crew arrived in the early afternoon and checked into a hotel near the Boise River. That evening, Ms. Henneman went walking on the Greenbelt. She visited an art museum and a nearby restaurant. After dinner, Ms. Henneman was seen walking back to the hotel. However, she never re-entered her hotel room, nor did she answer her husband’s phone calls that evening. After failing to meet the flight crew the next morning as planned, Ms. Henneman was reported missing and an extensive search was undertaken.

A few days later, her wallet and its contents were discovered eight miles from the hotel by some children playing in a field near a junior high school. Two weeks later, her body was discovered floating in the Boise River more than a mile downstream from her hotel. The black sweater she had been wearing was tied tightly around her neck and her shirt was tied around one of her wrists. Oral, vaginal, and anal swabs were collected from Ms. Henneman’s body and sent for DNA testing. An autopsy was performed and due to marks on her head and neck, it was determined that Ms. Henneman’s cause of death was likely strangulation. Several days after the discovery of her body, more items belonging to Ms. Henneman were found on the riverbank near the hotel.

Although the investigation continued, no suspect was identified until 2003, when police were investigating the murder of another woman in the Boise foothills. Erick Virgil Hall was questioned in connection with that murder and submitted a DNA sample. Hall’s sample matched the DNA on the vaginal swabs collected from Ms. Henneman’s body three years earlier.

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Hall was subsequently charged with the kidnapping, murder, and rape of Ms. Henneman. A jury trial was conducted, and Hall was convicted of all three counts. He was sentenced to death for the murder charge, and received two fixed life sentences without the possibility of parole for the rape and first-degree kidnapping charges. Hall appealed to this Court, but his direct appeal was stayed pending completion of post-conviction proceedings.

Hall petitioned the district court for post-conviction relief. During post-conviction proceedings, Hall moved to depose his trial counsel’s investigator and to contact jurors from trial. The district court denied both motions. Hall was permitted an interlocutory appeal to this Court to review the district court’s decisions as to those motions. This Court affirmed the district court, and remanded the case for completion of post-conviction proceedings. Hall moved for partial summary disposition of the petition and the State moved for summary dismissal. In a lengthy decision, the district court granted the State’s motion for summary dismissal. Hall timely appealed. His direct and post-conviction appeals are consolidated for review.

II. ANALYSIS

A. GUILT PHASE ISSUES ON DIRECT APPEAL

1. The district court did not violate Hall’s due process rights by holding incidental proceedings off the record.

Hall contends that he was denied equal protection and due process under the federal and state constitutions because incidental proceedings were held off the record. Where a defendant alleges that a constitutional error occurred at trial, we must first determine whether a contemporaneous objection was made. State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010). "If the alleged error was followed by a contemporaneous objection at trial, appellate courts shall employ the harmless error test articulated in [Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ]." Id. Here, no contemporaneous objection was made to any of the unrecorded proceedings which means that the alleged errors must be reviewed under our fundamental error doctrine: [I]n cases of unobjected to fundamental error: (1) the defendant must demonstrate that one or more of the defendant’s unwaived constitutional rights were violated; (2) the error must be clear or obvious, 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) the defendant must demonstrate that the error affected the defendant’s substantial rights, meaning (in most instances) that it must have affected the outcome of the trial proceedings.

Id. at 226, 245 P.3d at 978. The burden is on the defendant to prove "there is a reasonable possibility that the error affected the outcome of the trial." Id. ; see also State v. Dunlap, 155 Idaho 345, 361-63, 313 P.3d 1, 17-19 (2013) (applying the harmless error and fundamental error standards from Perry to capital cases).

Here, Hall’s claims are based upon Idaho Appellate Rules 25(d) and 28(b)(2)(O), the Fourteenth Amendment of the United States Constitution, and Article I, section 13 of the Idaho Constitution. However, Idaho Appellate Rules 25(d) and 28(b)(2)(O) deal with providing transcripts on appeal from hearings that have been recorded. The rules do not dictate which proceedings should be recorded. Hall’s reliance on these rules is misplaced.

Hall cites Draper v. Washington, 372 U.S. 487, 497-99, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), to argue that depriving a defendant of a verbatim transcript deprives him of adequate appellate review. However, Draper does not require every proceeding to be on the record, but rather requires that there be provided a "record of sufficient completeness." Id. at 499, 83 S.Ct. 774. Here, there is a record of sufficient completeness available, with transcripts of every relevant hearing, proceeding, and the trial. Hall also contends that Entsminger v. Iowa, 386 U.S. 748, 752, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967), requires a "full record, briefs, and arguments." However,

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in Entsminger, the defendant was not provided with either the trial transcript or the parties’ briefing. Id. at 750, 87 S.Ct. 1402. Here, trial transcripts and all relevant briefing have been provided to Hall. Finally, Hall argues that Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), requires "the entire transcript" be provided under the United States Constitution. In Hardy, there was a complete absence of any transcript and the Supreme Court emphasized that its decision was based on federal statutory, not constitutional, grounds. Id. at 282, 84 S.Ct. 424.

Federal circuit courts have interpreted the Hardy holding narrowly. See, e.g., Karabin v. Petsock, 758 F.2d 966, 969 (3rd Cir...

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