State v. Baker

• Decision Date: 13 April 1982
• Docket Number: No. 13685,13685
• Citation: 103 Idaho 43,644 P.2d 365
• Parties: STATE of Idaho, Plaintiff-Respondent, v. William O. BAKER, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 365

644 P.2d 365

103 Idaho 43

STATE of Idaho, Plaintiff-Respondent, v. William O. BAKER, Defendant-Appellant.

No. 13685.

Court of Appeals of Idaho.

April 13, 1982.

Gaylen L. Box, McDermott Law Offices, Pocatello, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

It was a shotgun blast in the early morning that killed Merardo Rodriguez. As he lay on the floor of his house, his wife placed a pillow beneath his head and watched him die. The wife's father, William Baker, stood a few feet away, in his night clothes, holding the shotgun. He leaned the gun against a wall, went upstairs to dress, and waited for the police to arrive. From this tragic denouement of family conflict came a prosecution for first degree murder. Baker never denied the killing. He claimed that Rodriguez had been drunk, had threatened him, and that the gun was fired in self-defense. A jury found Baker guilty only of voluntary manslaughter. The district court sentenced him to the custody of the Board of Correction for an indeterminate term not exceeding six years. In this appeal, Baker contends that the jury was not adequately instructed on the law of self-defense, that the court's response to an inquiry from the jury was erroneous, and that the sentence was excessive. We affirm both the judgment of conviction and the sentence imposed.

Baker's contentions are framed by the facts developed at trial. Evidence was presented to show that Rodriguez had a reputation for being quarrelsome and dangerous when intoxicated. There was some testimony that Rodriguez had been unfaithful to his wife, had abused her, and recently had made a lewd sexual advance to one of her children by a prior marriage.

Baker, a retired serviceman, a devout member of his church, and a strong paternal influence within his family, had a low regard for Rodriguez. He had urged his daughter to get Rodriguez out of her life. She refused. She said she loved him.

Rodriguez and the daughter had a home in Rockland, Idaho. However, for several months prior to the shooting, Rodriguez had worked in Utah, seeing little of his wife at Rockland. The evening before the fatal confrontation, Baker and his family arrived at the Rockland home for an extended visit with the daughter. Baker brought two shotguns with him. He later explained that guns had always been an important part of his life, and he usually traveled with them. Baker loaded both firearms and placed them in the living room, near a cot where he would sleep. Everyone went to bed.

In the early morning, the daughter was awakened by the sound of a car stopping at the house. From a bedroom window she saw her husband walking toward the front door. As she ran downstairs, there was a loud knock. Baker jumped up and grabbed a gun. When the daughter opened the door, the confrontation began.

What happened next did not take long, and the testimony is conflicting. However, it appears that sharp words were exchanged. Baker, gun in hand, insisted that Rodriguez leave. Rodriguez, who had been drinking, answered that he did not have to leave his wife and home. Rodriguez and the daughter went to another room and attempted to reach the police by telephone, without success. Rodriguez then called his brother's house, a few miles away, told his sister-in-law there was trouble, and asked her to come get him. When he walked back to the living room, the acrimonious exchanges resumed. Rodriguez started to go out the front door; but, apparently in response to a comment by Baker, he turned back. He clenched his fists and said in effect, either that he would knock Baker's "block off," or that he would break Baker's neck. Baker later testified that he became afraid for his life; that Rodriguez, like "Richard Speck up in Chicago," might kill everyone in the house. Rodriguez stepped toward Baker. Baker pulled the trigger.

I

We turn first to the court's instructions on self-defense. There were five instructions on the subject. The first was virtually identical to an instruction approved, although not quoted, by our Supreme Court in State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980). ¹ The Supreme Court said the instruction was "not a model," but held that it was "not ambiguous, misleading or erroneous." 101 Idaho at 166, 610 P.2d at 525. Both sides in the instant case requested such an instruction, and the court correctly gave it. ²

The court's second instruction, requested by Baker, recited the elements of justifiable homicide under I.C. § 18-4009. The third and fourth instructions, each requested by one of the parties, dealt with the extent of force that may be used in self-defense. The fifth instruction, proposed by Baker, informed the jury that they could consider the reputation of Rodriguez, for being quarrelsome and dangerous, in determining the reasonableness of Baker's conduct. None of these instructions is challenged on appeal.

However, Baker contends that the court's five instructions did not go far enough; that they failed to apprise the jury of Baker's right to rely on appearances in forming a belief that he was in imminent danger of harm from Rodriguez. We disagree. The first instruction, footnoted previously, states, in part:

The danger must have been apparent and must have been present and must have been imminent, or must have so appeared at that time to a reasonable person.... (Emphasis supplied.)

This instruction explicitly acknowledged Baker's right to respond to an "apparent" danger, but the danger must have been one that would appear to a "reasonable person." The linkage between reasonableness and a right to act on appearances is indispensable. The right of self-defense in Idaho has long been grounded in the concept of the "reasonable" person. E.g., State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909).

Baker further contends that two of his proposed instructions, emphasizing the right to rely on appearances, should have been given. One of the instructions ³ drew heavily upon State v. Fondren, 24 Idaho 663, 135 P. 265 (1913). This proposed instruction went beyond the language of an instruction given in Fondren, and included commentary from the Fondren opinion about self-defense in general. In our view, the proposed instruction, insofar as it followed the instruction given in Fondren, was covered by the court's first self-defense instruction in this case. Insofar as the proposed instruction contained commentary from Fondren, it would have added nothing as a matter of substantive law. It simply would have editorialized upon implications of the court's first instruction.

The other proposed instruction ⁴ was copied from an instruction quoted in State v. Wilson, 41 Idaho 616, 243 P. 359 (1925). However, the Wilson court did not pass upon the entire instruction; the court cited it only to show that the jury, in that case, had been informed:

... that all that was necessary was that a reasonable and prudent man in similar circumstances should have believed it necessary to defend himself .... (41 Idaho at 635, 243 P. at 364.)

In our view, this proposed instruction-like the other proposed instruction urged by Baker-would have imparted no additional substantive information to the jury, but merely would have commented upon rules of law already stated.

Moreover, the commentary portions of both proposed instructions appear subtly to encourage the jury to focus upon a defendant's subjective fears. Such a focus would be contrary to the reasonableness requirement, set forth above, and recently re-emphasized by our Supreme Court. See, e.g., State v. Rodriguez, 93 Idaho 286, 291, 460 P.2d 711, 716-17 (1969); State v. Scroggins, 91 Idaho 847, 849, 433 P.2d 117, 119 (1967). We hold that the district court did not err by refusing to give these proposed instructions.

II

Baker next contends that the court misled the jury in a response to an inquiry received during jury deliberations:

THE COURT: Let the record show that we have received a note from the jury reading, and I quote, "For clarification only. In self-defense, do we consider all actions leading up to the act, or do we consider the immediate act itself?"

The response which I'm submitting to the jury reads, and I quote, "You should consider the facts and circumstances from the time Merardo knocked on the door until the shooting."

Do you agree, Mr. Beebe, that that should be the response?

MR. BEEBE (prosecutor): Yes, Your Honor.

THE COURT: Mr. McDermott?

MR. McDERMOTT (defense counsel): Yes, Your Honor.

Baker argues that the jury's inquiry showed confusion about the court's instructions on self-defense. We cannot agree. The jury did not ask the meaning of any instruction they had received. Rather, they inquired about the time frame of actions to be considered.

Baker next argues that, by limiting commencement of the time frame to when Rodriguez knocked on the door, the court excluded consideration of the victim's bad reputation. We note that defense counsel did not object to the court's language; rather, he approved it. In the absence of timely objection at trial, an assertion of error will not be examined on appeal. E.g., State v. McCurdy, 100 Idaho 683, 603 P.2d 1017 (1979).

A limited exception to this rule has been recognized where "fundamental error" deprives a defendant of due process. E.g., State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971). We see no denial of due process here. The court's response to the jury did not displace the written instructions, one of which specifically authorized the jury to consider the victim's reputation. Furthermore, the jury's inquiry was about "actions." Had the court told the jury to consider "actions" before Rodriguez knocked on the door, the jury's attention would have been drawn to prior conduct by Rodriguez toward his wife and her children. The prosecution, seeking a conviction of first degree murder, had contended that such conduct formed the...