Facebook Posts of Murder Victim, Offered by Defendant on Issue of Who Was the Aggressor under 803(3), Rejected for Lack of Foundation Tying Content of Posts to Defendant

State v Hall, 2016 Ida. LEXIS 356 (Ida. Nov. 15, 2016):

This is an appeal out of Ada County from a judgment of conviction for the crime of murder in the second degree. The primary issue on appeal is whether the district court properly instructed the jury on the issue of self-defense. We hold that the district court did and affirm the judgment of conviction.

I.

Factual Background.

In September 2010, Kandi Hall ("Kandi") was unemployed, having been fired by the law firm where she had worked, and she wanted another paralegal job. Emmett Corrigan ("Emmett") was waiting to learn the results of the bar exam he had taken and wanted to hire a paralegal to work for him when he began practicing law. They were introduced [*2]  by a mutual friend. Kandi and Emmett were immediately attracted to each other, and within two weeks they began having a sexual relationship. Emmett passed the bar exam, and he hired Kandi in November 2010 to work for him in the law office he had opened. Their torrid sexual relationship continued, including having sexual intercourse in the law office, until March 11, 2011, when Kandi's husband, Robert Dean Hall ("Rob"), shot and killed Emmett in the parking lot of a pharmacy. A jury found Rob guilty of murder in the second degree. Kandi testified at trial that she always loved her husband, never intended to leave him, and was committed to their marriage.

On March 11, 2011, Kandi had left work at about 6:00 p.m., and upon arriving home she had discovered that Rob was in the garage packing large boxes. He told her that he had had it with the way she had been so nonresponsive to their relationship the last few months. As they continued their discussion, she admitted to having an affair with an attorney in Oregon, but she later recanted that statement. He left their house at about 8:45 p.m., and she left shortly thereafter. As she was backing out of their driveway, she had a phone conversation [*3]  with Emmett. She told him she was going to the pharmacy to pick up a prescription, and he stated that he would meet her there.

On March 11, 2011, Emmett had left work sometime after Kandi did. When he arrived at home, his wife confronted him about their marital problems. He responded by becoming angry. At some point, he had the telephone conversation with Kandi Hall. He told her he would meet her at the pharmacy parking lot. He then told his wife that he had to go pick up a prescription and left.

After Kandi had picked up her prescription, she got into Emmett's pickup. After stopping for gas, he began driving around. He ultimately parked in a subdivision being developed, where they had sexual intercourse for the second time that day. Kandi then received a call from her older daughter, who wondered where she was. The daughter had seen Kandi's car in the pharmacy parking lot and had called Kandi, but Kandi had not answered the call. She had then called Rob to ask where Kandi was. Kandi told her daughter that she was just driving around with a female friend.

As Emmett was driving back to the pharmacy parking lot, Kandi received a call from Rob. Emmett grabbed her phone and asked Rob, "What's [*4]  up chief?" Kandi described Emmett's tone of voice as being aggressive. Kandi could only hear Emmett's side of the conversation. He said to Rob: "Yeah, we're talking about life. Have you got a problem with that?" Kandi described Emmett's tone of voice as being derogatory, derisive, and challenging. Rob apparently responded, and Emmett said to him, "Yeah, I'm going to crack your f***ing head." Kandi described Emmett's tone of voice as being threatening. Emmett then said, "Just wait there. We'll be right there." Kandi described Emmett's tone of voice as being aggressive.

Emmett drove into the pharmacy parking lot shortly after 10:00 p.m. He parked, he and Kandi got out of Emmett's pickup, and Rob got out of his pickup. Rob had a compact, .380 ACP caliber pistol with a laser sight. Rob was dressed in sweat pants and a black, pull-over hoodie with a kangaroo pocket. Before getting out of his pickup, Rob had removed the pistol from the holster in which he carried it in the pickup, left the holster there, and put the pistol in the kangaroo pocket of his hoodie.

Kandi was the only witness to what then occurred. Prior to the trial, she gave accounts of what had occurred that differed from her [*5]  trial testimony. During the final jury instruction conference, the district court discussed its jury instruction regarding the use of such pretrial statements. When doing so, the court stated, "Frankly, in my many years as a judge, I don't know that I've seen a witness to a case who has made so many conflicting statements and/or the level of impeachment." In ruling on Rob's motion for a new trial, the district court again stated with respect to Kandi's credibility:

   Frankly, any testimony by Ms. Hall, in my 31 years on the bench I don't think I've seen a witness more thoroughly discredited in the course of a proceeding. And the jury had a right to not consider that as evidence, that when she testified at the trial and said there was a very strong push, that she turned around, she heard some kind of grunting noises and then the firearm was discharged. They could have chosen to completely ignore that.

However, the central issue on appeal concerns whether the facts justified a particular instruction on self-defense, and therefore we will state the facts in a manner most favorable to Rob, which is Kandi's trial testimony.

She testified that after everyone was out of their respective vehicles, [*6]  Emmett was standing against his pickup, leaning backward against it with his arms crossed, and Rob walked over to where Emmett and Kandi were, but he and Rob were "pretty far apart." Rob asked, "What's going on?" and Emmett answered, "She doesn't want to be with you, Rob." Rob looked at Emmett and asked, "She wants to be with you?" Emmett then made statements intended to insult Rob and to incite him to fight, concluding with, "She doesn't want to be with you." Rob looked at Kandi and said, "But you want to be--he has got five kids, Kandi." He then looked at Emmett and stated, "And your poor wife, she just had a baby, and she is at home while you're out with my wife." Emmett then lunged forward and pushed Rob in the chest with both hands, but not forcefully enough to make him fall. Kandi stepped between them, told Emmett to get in his pickup, told Rob they had to leave because their daughter called, turned around, and was walking toward her car when she heard scuffling on the ground behind her. She then heard three gunshots. She turned around and saw Rob standing with blood running down his face. He had his pistol in his right hand, and he then collapsed, dropping the pistol. She later [*7]  saw Emmett lying on the ground.

Rob had a grazing bullet wound on the top left side of his head. According to expert medical testimony, although the bullet did not penetrate or fracture the skull, it caused a traumatic brain injury, a moderate concussion. As a result, he suffered retrograde amnesia and cannot recall what occurred. He did not testify at the trial, although statements he made to the police shortly after the incident were admitted.

Emmett had two gunshot wounds, one to the chest and one to the head. The bullet that hit his chest passed through his sternum at the level of the fifth rib, through the right ventricle of his heart, through the middle lobe of his left lung, and impacted his spinal column at the level of the tenth thoracic vertebrae. It entered the bone, but did not hit the spinal cord. However, the force transmitted to the spinal cord by the bullet impact would have cut off all electrical impulses below the point of impact, and he would not have been able to move anything below that point. He would have dropped to the ground as quickly as gravity could pull him down. From an abrasion that he suffered on the right side of his forehead, it appears that he pitched [*8]  forward when he fell, hitting his head. This wound was fatal, but not immediately. The bullet that hit his head entered his skull just inside the hairline of his upper right forehead, traveled in a slight downward and leftward direction through the entire right side of his brain, and ended at the bottom part of his brain on the right side. It too was a fatal wound, but not immediately. After being shot, he could have lived for a short period of time.

The appeal was initially heard by the Idaho Court of Appeals, which upheld the judgment of the district court. We then granted Rob's petition for review. In cases that come before this Court on a petition for review of a decision of the Court of Appeals, we do not review the decision of the Court of Appeals. State v. Suriner, 154 Idaho 81, 83, 294 P.3d 1093, 1095 (2013). We hear the case anew as if the appeal had initially come directly to this Court. Id.

***

III.

Did the District Court Err in Denying Admission into Evidence of Emmett's Facebook entries?

On February 17, 2012, the defense filed a motion to admit various items of evidence, including Facebook [*30]  posts made by Emmett on February 25 and March 10, 2011. The defense contended that "Corrigan made statements on Facebook indicating his desire to fight a male whom Corrigan had an altercation with on or about the middle of February 2011, and indicating that Corrigan's physical presence caused fear and apprehension in the male."

Three of Emmett's posts were marked on an attached exhibit, and in context the relevant posts were as follows:

Posts on February 25, 2011:

   Emmett:

Nothin better than having someone try and call you out and when it comes go time they end up pissing their pants and not wanting any part of what they started

Response from another:

I had that happen to me tonight too! When I came back and said let's do this he backed down like a baby back b****!!

Emmett:

Yeah Bro! Mine happened last week. Apparently they talk talk talk smack in Cali. Here in Idaho talk is cheap. Throwin down settles it once and for all!!

Posts on March 10, 2011:

   Emmett:

So sad seeing people get manipulated by people who abuse, lie and cheat . . .

Response from another:

people like that need a serious ass kickin!!

Emmett:

I would kick their ass, but they are too scared to throw down . . . LOL!!!! Next time I'll [*31]  film it for ya!!

The defense contended that these posts were relevant and admissible under Idaho Rule of Evidence 803(3) to show Emmett's then existing state of mind in order to establish that he was the aggressor. The State objected on the ground that the statements were hearsay and not within the state-of-mind exception because they do not reflect Emmett's state of mind on the date the posts were made, much less on the date he was killed. The State also asserted that they were inadmissible under Idaho Rule of Evidence 403. The district court ruled that the posts do "not specify who the 'male' is that Corrigan is referring to and is highly speculative that this desire pertained to the Defendant" and that the evidence would not be admitted because it is hearsay and irrelevant.

"Whether there is a proper foundation upon which to admit evidence is a matter within the trial court's discretion." State v. Koch, 157 Idaho 89, 96, 334 P.3d 280, 287 (2014). "To determine whether a trial court has abused its discretion, this 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." Reed v. Reed, 137 Idaho 53, 57, 44 P.3d 1108, 1112 (2002).

On appeal, Rob contends that the Facebook [*32]  posts "fit within the state of mind exception because they were statements of Mr. Corrigan's then existing intent to be the aggressor in a future confrontation with Mr. Hall." He asserts that the posts on February 25, 2011, about someone trying to call Emmett out last week refer to Rob, based upon trial testimony that Emmett and Rob had an argument sometime in February 2011 in the alley behind the law office and another argument in late February 2011 in front of Rob and Kandi's house. The trial testimony that Rob contends shows that the Facebook posts concerned Rob was not presented to the district court in connection with the pretrial motion seeking a ruling that the Facebook posts were admissible. In support of that motion, the defense did not present any argument asserting that Rob was the unidentified male who was the subject of the posts. Rob has failed to show that the district court abused its discretion in making its pretrial ruling that the Facebook posts were not admissible because it was highly speculative that they pertained to Rob.

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