State v. Erik Virgil Hall

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket Nos. 31528/41059

STATE OF IDAHO, )

)

Plaintiff-Respondent, )

)

v. )

)

ERICK VIRGIL HALL, )

) Boise, August 2017 Term

Defendant-Appellant. )

_______________________________________ ) 2018 Opinion No. 33

)

ERICK VIRGIL HALL, ) Filed: April 11, 2018

)

Petitioner-Appellant, ) Karel A. Lehrman, Clerk

)

v. )

)

STATE OF IDAHO, )

)

Respondent. )

_______________________________________ )

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.

________________________

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.

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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.

I. 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.

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.

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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

(2008). “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

(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

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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 (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. 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 (1967), requires a “full record, briefs, and

arguments.” However, in Entsminger, the defendant was not provided with either the trial

transcript or the parties’ briefing. Id. at 750. Here, trial transcripts and all relevant briefing have

been provided to Hall. Finally, Hall argues that Hardy v. United States, 375 U.S. 277 (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.

Federal circuit courts have interpreted the Hardy holding narrowly. See, e.g., Karabin v.

Petsock, 758 F.2d 966, 969 (3rd Cir. 1985) (quoting Griffin v. Illinois, 351 U.S. 12, 20 (1956))

(“The Supreme Court has never held that due process requires a verbatim transcript of the entire

proceedings. To the contrary, it has specifically held that states may find ‘other means of

affording adequate and effective appellate review’ of criminal convictions.”). These cases do not

require a verbatim transcript of every unrecorded proceeding; they only require “‘adequate and

effective appellate review’ of criminal convictions.” Id. (quoting Griffin, 351 U.S. at 20).

This Court has discussed the constitutional ramifications of an appellant not being

provided with every transcript from his underlying criminal case. See State v. Burnet, 155 Idaho

724, 726−27, 316 P.3d 640, 642−43 (2013). It has held that “[t]he State is not required . . . to

purchase a stenographer’s transcript in every case in which a defendant cannot buy one, nor is

the State required to provide a transcript of all proceedings held below.” Id. “When an indigent

defendant requests that transcripts be created and incorporated into a record on appeal, the

grounds of the appeal must make out a colorable need for the additional transcripts.” Id. at 727,

316 P.3d at 643. “Mere speculation or hope that something exists does not amount to the

appearance or semblance of specific information necessary to establish a colorable need.” Id. “It

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is basic to appellate practice that error will not be presumed, but must be affirmatively shown by

an appellant.” State v. Lovelace, 140 Idaho 53, 65, 90 P.3d 278, 290 (2003) (citing State v.

Langley, 110 Idaho 895, 897, 719 P.2d 1155, 1157 (1986)).

Here, Hall has failed to demonstrate specific prejudice he suffered because some

proceedings were conducted off the record. “[E]rror in the abstract does not necessarily rise to

the level of constitutional dimension unless and until a defendant properly presents a specific

prejudice from such error.” Id. Hall has failed to meet his burden to prove that “there is a

reasonable possibility that the error affected the outcome of the trial,” Perry, 150 Idaho at 226,

245 P.3d at 978, or that there exists “specific prejudice from such error,” Lovelace, 140 Idaho at

65, 90 P.3d at 290. As such, Hall has failed to prove that there was any constitutional violation in

the trial court’s holding proceedings off record.

2. The district court properly denied Hall’s motion to dismiss the indictment.

Hall argues the district court erred by denying his motion to dismiss the indictment on

jurisdictional grounds. On April 22, 2003, the evidence against Hall was presented to a grand

jury in Ada County. A hearing was held after the grand jury deliberated. During the hearing, the

foreman asked the court whether the indictment contained his signature. The court responded,

“Yes, I think we got it.” The court then asked the foreman whether it was a true bill and the

foreman responded, “It is, Your Honor.” The next day, Hall was arraigned and counsel was

appointed. Later, however, it was discovered that the indictment had not been signed by the

foreman. Hall moved to dismiss the indictment under Idaho Code section 19-1401. On April 25,

2003, the court held a hearing, in which the State explained that the foreman had properly dated

the indictment, but had forgotten to sign it. After a discussion between the parties and the court,

the court took Hall’s motion under advisement and set the case over to permit the grand jury to

reconvene on the same indictment. Neither of the parties objected to the court’s resolution of the

issue. On May 6, 2003, the same grand jury reconvened. The indictment was signed by the

foreman at this time. When the parties reconvened before the assigned district court judge, Hall

requested that the indictment be dismissed because the date on the indictment was still listed as

April 22, 2003. The court denied the motion, explaining that it was the same grand jury that

reconvened, that it was a clerical oversight that the indictment had not been initially signed and

had the original date, and that the indictment now complied with section 19-1401. Hall argues

the indictment should have been dismissed.

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“This Court exercises free review over questions of jurisdiction.” State v. Lute, 150 Idaho

837, 840, 252 P.3d 1255, 1258 (2011). “The information, indictment, or complaint alleging an

offense was committed within the State of Idaho confers subject matter jurisdiction upon the

court.” Id. (quoting State v. Rogers, 140 Idaho 223, 228, 91 P.3d 1127, 1132 (2004)). “No person

shall be held to answer for any felony or criminal offense of any grade, unless on presentment or

indictment of a grand jury or on information of the public prosecutor.” Idaho Const. art. I, § 8.

“An indictment cannot be found without the concurrence of at least twelve (12) grand jurors.

When so found it must be endorsed, a true bill, and the endorsement must be signed by the

foreman of the grand jury.” I.C. § 19-1401. “Since the indictment or information provides

subject matter jurisdiction to the court, the court’s jurisdictional power depends on the charging

document being legally sufficient to survive challenge.” State v. Jones, 140 Idaho 755, 758, 101

P.3d 699, 702 (2004). “To be legally sufficient, a charging document must meet two

requirements: it must impart jurisdiction and satisfy due process.” State v. Severson, 147 Idaho

694, 708, 215 P.3d 414, 428 (2009). The question is thus whether either the temporary absence

of a signature or the presence of the original date deprived Hall of due process.

“No indictment is insufficient, nor can [it] be affected, by reason of any defect or

imperfection in matter of form, which does not tend to the prejudice of a substantial right of the

defendant upon its merits.” I.C. § 19-1419. There are several express statutory grounds for

setting aside an indictment. See I.C. § 19-1601. “The indictment must be set aside by the court in

which the defendant is arraigned, upon his motion . . . when it is not found, endorsed and

presented as prescribed in this code.” I.C. § 19-1601. However, this Court has held that technical

defects in an indictment do not defeat jurisdiction of the district court to proceed on the

indictment. See Gasper v. Dist. Ct. of Seventh Jud. Dist., in and for Canyon Cnty., 74 Idaho 388,

395, 264 P.2d 679, 683 (1953) (“The conclusion is that such defects [including the presence of

unauthorized persons and certain defects in signature] do not involve the jurisdiction of the court,

at least in such manner as to provide grounds for prohibition.”); see also State v. Schmierer, 159

Idaho 768, 771, 367 P.3d 163, 166 (2016). In Gasper, the plaintiff argued that the indictment was

not endorsed and presented as required by Idaho Code section 19-1401, because it was not

signed by the foreman. Id. at 392, 264 P.2d at 681. The Court observed that below “the body of

the indictment containing the name of the accused, the crime charged, the manner and date of its

commission and the date of the indictment . . . appears the name of the foreman—presumably

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his signature—followed by his title as foreman of the grand jury.” Id. The Court held that the

appearance of the name of the foreman on the bill was “sufficient and substantial compliance

with the statute.” Id.

With regard to the improper date, Hall objected to the incorrect date and the district court

sent the indictment back to the grand jury for a correction pursuant to Idaho Criminal Rule 36.

I.C.R. 36 (2003). Because Hall objected, we review using the harmless error standard. Perry, 150

Idaho 209, 227, 245 P.3d 961, 979 (2010). “Under the harmless error standard, the defendant has

the initial burden of establishing an error, at which point the State has the burden of proving

beyond a reasonable doubt that the error complained of did not contribute to the verdict

obtained.” State v. Abdullah, 158 Idaho 386, 416, 348 P.3d 1, 31 (2014). Further, this Court has

held that “[t]echnical defects are a “matter of form . . . [that] [do] not tend to prejudice any

substantial right of the defendant.” Gasper, 74 Idaho at 393, 264 P.2d at 681.

Here, the improper date was a clerical defect that did not prejudice any of Hall’s

substantial rights or contribute to the verdict obtained. The foreman believed the indictment to be

signed, and once the defect was revealed, it was promptly remedied by reconvening the same

grand jury less than one month after it was empowered. Thus, the technical defect in the

indictment was cured by the same foreman and grand jury that originally approved the

indictment. After the signature was obtained, Hall was re-arraigned. No substantial right of

defendant Hall was prejudiced and because the errors were corrected promptly by the same grand

jury and Hall was re-arraigned, it cannot be said that the errors affected the verdict obtained.

Further, Hall made a motion to dismiss the indictment, but he did not object to the court

sending it back to the grand jury for a signature. Hall failed to object to the court’s remedy, and

as such, has waived the objection. Jones, 140 Idaho at 758, 101 P.3d at 702 (“Tardily raised

objections based on defects in an indictment or information are waived unless they allege either

(1) a failure to show jurisdiction, or (2) a failure to charge an offense.”). For these reasons, we

hold that the district court properly denied Hall’s motion to dismiss the indictment.

3. The district court properly denied Hall’s motions to strike two jurors for cause.

During voir dire, Hall moved to strike two jurors for cause. Hall first moved to strike

Juror 1 for cause, arguing that the juror was biased. The court denied the motion, stating that

Juror 1’s answer indicated that he would not always vote for the death penalty, particularly since

none of the jurors had been instructed on the law. After further voir dire, Hall again moved to

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excuse Juror 1, contending that Juror 1 was biased in favor of the death penalty and would not

consider mitigation evidence adequately. The court denied Hall’s motion again. Later, Hall

moved to strike Juror 60 for cause, arguing that she was “substantially mitigation impaired.” The

court denied Hall’s motion. After the jury was selected, the parties agreed that each juror was

seated as selected and offered no objection to the jury. Neither Juror 1 nor Juror 60 was seated on

the jury. Further, none of the seated jurors were objected to during voir dire. On appeal, Hall

contends that his constitutional rights were violated because the district court did not excuse

Juror 1 or Juror 60 for cause, requiring him to use two peremptory challenges to remove them.

“The proper standard for determining when a prospective juror may be excluded for

cause because of his views on capital punishment is whether the juror’s views would ‘prevent or

substantially impair the performance of his duties as a juror in accordance with his instructions

and his oath.’” Wainwright v. Witt, 469 U.S. 412, 412 (1985) (quoting Adams v. Texas, 448 U.S.

38, 45 (1980)). “[A] trial court does not abuse its discretion by refusing to excuse for cause

jurors whose answers during voir dire initially give rise to challenges for cause but who later

assure the court that they will be able to remain fair and impartial.” Nightengale v. Timmel, 151

Idaho 347, 353, 256 P.3d 755, 761 (2011) (quoting Morris v. Thomson, 130 Idaho 138, 141, 937

P.2d 1212, 1215 (1997)).

“The decision to excuse potential jurors is within the discretion of the trial court.” State v.

Hairston, 133 Idaho 496, 506, 988 P.2d 1170, 1180 (1999). “The Court determines whether the

district court abused its discretion by examining: ‘(1) whether the court correctly perceived the

issue as one of discretion; (2) whether the court acted within the outer boundaries of its

discretion and consistently within the applicable legal standards; and (3) whether the court

reached its decision by an exercise of reason.’” Abdullah, 158 Idaho at 416, 348 P.3d at 31

(quoting State v. Shackelford, 150 Idaho 355, 363, 247 P.3d 582, 590 (2010)).

Juror 1 was asked by the court whether he would “weigh the aggravating and mitigating

circumstances presented, [and] . . . fairly consider both voting for life in prison and voting to

impose the death penalty,” to which he answered, “Yes.” During the State’s questioning, counsel

asked:

Some of the [jury questionnaire] questions dealt with whether what [sic] you think

about a person who has come from a difficult or chaotic background. Some

people view that as being a reason not to hold them responsible for the choices

that they make or to judge them less harshly for the choices they make. Other

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people look at it a different way, feel sorry for them, sorry for the person but hold

them responsible for the choices that they make, regardless of how bad their

background has been. Where are you on that issue?

In response Juror 1 stated, “I would have to say that I’m more to the latter where someone,

regardless of what their background is, is responsible for their actions.” However, during defense

questioning, Juror 1 then stated he would consider the defendant’s upbringing as a mitigating

factor. The State also asked:

[Y]ou’ll be asked to listen to [additional facts], to decide what weight to give each

kind of thing that you hear, whether any weight or none or a bunch, and then to

weigh those things in making a decision as to what the penalty will be.

My question is, will you be able to do that kind of a job, that is, to listen to

what the State says, listen to what the Defense says if they—I mean, the burden is

still on us, not on them—and to make important decisions of that kind, based on

mitigation and aggravation evidence as well?

Juror 1 responded in the affirmative. When questioned by the defense regarding the death

penalty in view of a brutal factual situation, Juror 1 said, “I’d probably be leaning more toward

the death penalty, if it was clearly very brutal and premeditated.” However, in the questionnaire,

Juror 1 circled the option, “I believe that the death penalty is appropriate in some murder cases

and I could return a verdict in a proper case which assessed the death penalty.” Juror 1 did not

select the option stating, “It would be appropriate in all murder cases.” Additionally, when asked

if the defendant was found guilty whether Juror 1 would be able to be “open and fair and

impartial as to what the sentence may be,” and whether it “would be a difficult thing to do,”

Juror 1 stated “Yes. I think I likely would have formed an opinion already.” However, he stated,

“I think I would likely by leaning towards the former but certainly open to—to the [defense]

presentation and try to be fair about it.” Juror 1 consistently stated that, while he supported the

death penalty and would be willing to apply it, he would analyze the circumstances—aggravating

and mitigating—and try to make a fair determination.

Here, Juror 1’s answers may have given rise to challenges for cause initially, but he

subsequently assured the court that he would weigh the evidence and make a fair decision.

“[T]he court is entitled to rely on assurances from venire persons concerning partiality or bias.”

Nightengale, 151 Idaho at 353, 256 P.3d at 761 (quoting Hairston, 133 Idaho at 506, 988 P.2d at

1180). Juror 1 repeatedly stated that he would consider the evidence presented and aim to be fair

and impartial, and the court was entitled to rely upon these assertions. As such, the district court

did not abuse its discretion by refusing to strike Juror 1.

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Juror 60’s response to the jury questionnaire admitted that she favored the death penalty

in some kinds of cases, particularly in cases involving serial murders and others, depending on

the severity of the crime. In her response, Juror 60 stated that she wanted to hold a person

responsible for their crimes, and would not consider mitigating evidence. But at this point, Juror

60 had not been instructed on the law on mitigation. When later asked during voir dire if she

could weigh mitigation against aggravation as instructed by the court, Juror 60 stated that she

could. She initially stated that she would not fully weigh circumstances of birth, character,

sympathy, or mercy, but went on to say that she would consider the facts of the crime and the

circumstances surrounding the crime.

Similar to Juror 1, Juror 60 also assured the court that she would make a fair decision.

The court is entitled to rely on these assurances. Nightengale, 151 Idaho at 353, 256 P.3d at 761.

The district court did not abuse its discretion by denying the motion to strike Juror 60. The court

reasoned that Juror 60 would consider both aggravating and mitigating circumstances, and that

the weight she assigns to them was her choice. When the defense argued that the juror was

“mitigation impaired” and had stated that she would not consider mitigating evidence to the full

extent, the court stated that the juror had agreed to weigh all of the facts and had not yet been

instructed on mitigation law. When the defense moved to strike Juror 60, the State argued that

Juror 60 agreed to consider mitigation evidence, and had not “indicated the slightest hesitancy

about listening to any kind of evidence properly presented.” After considering these arguments,

the court denied the motion.

As stated above, a juror may be excused for cause on a capital case if the juror’s views

would “prevent or substantially impair the performance of his duties.” Wainwright v. Witt, 469

U.S. 412, 424 (1985). There is no indication that either Juror 1 or Juror 60 was impaired from

performing their duties as jurors. Both articulated a willingness and ability to consider mitigating

factors and fairly apply the law. Therefore, the court did not abuse its discretion by denying

Hall’s motion to strike the jurors.

Turning to Hall’s constitutional argument, the United States Supreme Court has “long

recognized that peremptory challenges are not of constitutional dimension.” Ross v. Oklahoma,

487 U.S. 81, 83 (1988). “They are a means to achieve the end of an impartial jury. So long as the

jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve

that result does not mean the Sixth Amendment was violated.” Id. “When a party uses one of its

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peremptory challenges to remove a juror it argues should have been removed for cause, the party

must show on appeal that ‘he was prejudiced by being required to use a peremptory challenge to

remove [the juror].’” Nightengale, 151 Idaho at 354, 256 P.3d at 762 (quoting State v. Ramos,

119 Idaho 568, 570, 808 P.2d 1313, 1315 (1991)). The appellant must demonstrate that “any of

the other remaining jurors on the panel were . . . not impartial or were biased.” Id. Here, as will

be discussed below, no biased jurors were seated. The court did not abuse its discretion in

denying Hall’s motions to strike Juror 1 and Juror 60.

4. Hall has waived any objection to challenge allegedly bias jurors.

Hall contends that nine of the jurors—Juror 6, 62, 63, 68, 83, 85, 102, 110, and 111—

were biased. Hall claims that his right to an impartial jury under the Sixth, Eighth, and

Fourteenth Amendments was violated, and he requests a new trial. Hall’s claims include alleged

juror biases resulting from: employment in law enforcement, spouses in law enforcement or

working at the Attorney General’s Office, family members or associates who were victims of

violent crime, difficulty maintaining focus for long periods of time, hearing impediments, and

indirect ties to witnesses. However, as Hall failed to object to these jurors, he has invited the

error and waived the issue on appeal.

“The invited error doctrine precludes a criminal defendant from ‘consciously’ inviting

district court action and then successfully claiming those actions are erroneous on appeal.” State

v. Abdullah, 158 Idaho 386, 420, 348 P.3d 1, 35 (2014) (quoting State v. Owsley, 105 Idaho 836,

837, 673 P.2d 436, 437 (1983)). “It has long been the law in Idaho that one may not successfully

complain of errors one has acquiesced in or invited. Errors consented to, acquiesced in, or invited

are not reversible.” Id. at 420–21, 348 P.3d at 35–36 (quoting Owsley, 105 Idaho at 838, 673

P.2d at 438); see also State v. Dunlap, 155 Idaho 345, 379, 313 P.3d 1, 35 (2013) (applying

invited error to a capital case). Hall concedes that he did not object to seating any of the nine

jurors, did not use a peremptory challenge for any of the nine jurors, and passed each for cause.

In short, Hall failed to raise any objection to these jurors at any time, and allowed the jurors to be

empaneled without reservation. Thus, any error was invited and is not reversible. Hall has

waived this issue on direct appeal.

5. The district court did not err in allowing a police detective to testify about the

investigative process.

Hall argues that the district court abused its discretion in admitting the testimony of

Detective Smith that included his opinion about whether Christian Johnson was a viable suspect.

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He asserts that this testimony was irrelevant, consisted of an impermissible opinion about

Johnson’s guilt or innocence, and was improper vouching for the State’s case.

Hall takes issue with the following testimony:

THE STATE: And after you received the results back from the forensic

testing and had spoken to those people, did you – well, did you also take

ultimately a DNA sample – or did he give you a DNA sample from

himself [referring to Johnson]?

DET. SMITH: I did take a DNA sample from Chris Johnson, yes.

THE STATE: And after you received the results back from all these

things, did you continue to look for a suspect after you were done looking

at him?

DET. SMITH: I eliminated Chris Johnson as –

DEFENSE: Objection –

DET. SMITH: And continued, yes.

DEFENSE: That is nonresponsive.

THE STATE: I’ll ask a direct question.

THE COURT: All right. Thank you.

THE STATE: Did you eliminate him as a suspect?

DET. SMITH: I did.

DEFENSE: Objection.

THE COURT: Basis for the objection?

DEFENSE: Can I make a motion outside the presence?

. . . [The jury is excused]

THE COURT: Take a seat please, [defense counsel]

DEFENSE: Well, this officer can testify about facts, things he did. But

what his conclusions are are irrelevant. And there’s no foundation for his

conclusions. Initially he’s trying to get – well, he’s making nonresponsive

responses concerning hearsay information. And stopped that, and now

he’s making conclusions which I feel are irrelevant. It’s the province of

the jury to decide what the facts are not his, his province. So I – you know,

object and I move to strike that.

After this objection, the court heard argument from both sides before ruling on the

objection and motion on the grounds that there was not “anything inherently wrong with a

conclusion” and that Detective Smith’s actions were relevant, but not binding on a jury. Hall

asserts that Smith’s testimony was irrelevant, and that it constituted improper opinion testimony

and vouching. The objections regarding relevance and improper opinion testimony were raised

below.

For an objection to be preserved for appellate review, either the specific ground

for the objection must be clearly stated, or the basis of the objection must be

apparent from the context. An objection to the admission of evidence on one basis

does not preserve a separate and different basis for excluding the evidence.

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Slack v. Kelleher, 140 Idaho 916, 921, 104 P.3d 958, 963 (2004) (internal citations omitted).

“When an objection is made, the trial court is only asked to determine the validity of that

objection; it is not asked to determine whether there is another objection that would have been

sustained had it been made.” Id. “On appeal, we review whether the trial court erred. If the

objection is made on specific ground, the trial court is simply asked to decide whether that

particular objection is a valid reason for excluding the evidence. If the trial court correctly

overrules that objection, it has not erred.” Id. at 105–06, 205 P.3d at 1241–42.

As outlined above,“[i]f 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 (1967)].” Perry, 150 Idaho at 227, 245 P.3d at 979. Hall objected on relevancy and

improper opinion grounds, so the harmless error test will be used. The harmless error test is as

follows: “[w]here the defendant meets his initial burden of showing that a violation occurred, the

State then has the burden of demonstrating to the appellate court beyond a reasonable doubt that

the constitutional violation did not contribute to the jury’s verdict.” Id. Hall must first meet the

initial burden of showing that the evidence was improperly admitted.

While an objection to the improper opinion testimony was raised below, it was

unquestionably muddled. The basis for finding that an improper opinion testimony objection was

made rests in two sentences: “And there’s no foundation for his conclusions,” and “It’s the

province of the jury to decide what the facts are not his.” While inartfully raised, there is some

indication that Hall objected to Smith’s conclusions as opinion. The court overruled the

objection, stating, “[H]e’s entitled to explain . . . what he did and why he did it and what

conclusions he may have arrived at.” Thus, the objection was raised and decided below.

The question is whether the improper opinion objection had merit. “When reviewing the

trial court’s evidentiary rulings, this Court applies an abuse of discretion standard.” Edmunds v.

Kraner, 142 Idaho 867, 871, 136 P.3d 338, 342 (2006). “Error is disregarded unless the ruling is

a manifest abuse of the trial court’s discretion and affects a substantial right of the party.” Perry

v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 51, 995 P.2d 816, 821 (2000). “The decision to

admit opinion testimony, whether lay opinion or expert opinion, rests within the discretion of the

lower court, while the determination of its weight lies with the jury.” State v. Almaraz, 154 Idaho

584, 602, 301 P.3d 242, 260 (2011) (quoting State v. Cutler, 94 Idaho 295, 299, 486 P.2d 1008,

1013 (1971)). “The trial court’s broad discretion in admitting evidence ‘will only be disturbed on

13

appeal when there has been a clear abuse of discretion.’” Id. (quoting State v. Merwin, 131 Idaho

642, 646, 962 P.2d 1026, 1030 (1998)). “The Court determines whether the district court abused

its discretion by examining: ‘(1) whether the court correctly perceived the issue as one of

discretion; (2) whether the court acted within the outer boundaries of its discretion and

consistently within the applicable legal standards; and (3) whether the court reached its decision

by an exercise of reason.’” State v. Abdullah, 158 Idaho 386, 416, 348 P.3d 1, 31 (2014) (quoting

State v. Shackelford, 150 Idaho 355, 363, 247 P.3d 582, 590 (2010)).

Lay opinion testimony is governed by Idaho Rule of Evidence 701. Rule 701, as it read in

2004, stated:

If the witness is not testifying as an expert, the testimony of the witness in

the form of opinions or inferences is limited to those opinions or inferences which

are (a) rationally based on the perception of the witness and (b) helpful to a clear

understanding of the testimony of the witness or the determination of a fact in

issue, and (c) not based on scientific, technical or other specialized knowledge

within the scope of Rule 702.

Thus, the crux of this issue lies in whether Smith’s testimony—regarding Johnson’s elimination

as a suspect—was limited to opinions “rationally based” upon his perception, “helpful to a clear

understanding of his testimony,” and “not based on scientific, technical or other specialized

knowledge.” Here, it appears that Smith’s testimony was limited to an explanation of the

investigative process, which was rationally based upon his perception as an investigator. Smith

was testifying about the process of the investigation, and the process of eliminating Johnson as a

suspect, not about his personal opinion. While opinions that concern “an inference that could be

drawn by the jurors utilizing their own common sense and normal experience” are prohibited

under State v. Ellington, 151 Idaho 53, 66, 253 P.3d 727, 740 (2011), Smith was providing

background information crucial to understanding the investigative process. Smith investigated

Johnson’s alibi, collected his DNA sample, scrutinized his story, and then moved on to other

suspects, which is what Smith was explaining. Second, this testimony was helpful to a clear

understanding of his testimony—the process of the investigation—as well as a determination of

whether Hall committed the crimes. It was also helpful to a determination about whether Hall

acted alone. Lastly, this testimony is not based upon scientific, technical, or other specialized

knowledge as prohibited by Rule 701. Smith testified about what he did during the investigation,

which was appropriate testimony from a detective. Therefore, the testimony was proper. The

district court did not abuse its discretion in overruling the objection on this ground.

14

Additionally, the relevance issue was clearly raised below. Hall contends that the district

court erred because “why Det. Smith behaved as he did is irrelevant.” “[W]hether evidence is

relevant is a matter of law that is subject to free review.” State v. Shackelford, 150 Idaho 355,

363, 247 P.3d 582, 590 (2010). “‘Relevant [e]vidence’ means evidence having any tendency to

make the existence of any fact that is of consequence to the determination of the action more

probably or less probable than it would be without the evidence.” I.R.E. 401 (2004).

Here, Smith’s testimony was relevant to refute Hall’s contention that Johnson was

involved in Ms. Henneman’s murder, which was a fact of consequence that made Hall’s guilt

more probable than it would be without the evidence. The testimony provided the jury with a

complete story. It explained why the police no longer considered Johnson a suspect after his

DNA results were received. It provided the jury with details about how the investigation

progressed, and may have been helpful to the jury in determining Hall’s guilt. The evidence was

relevant and was properly admitted. Hall has failed to show that a violation occurred under the

harmless error test. We affirm the district court’s admission of Detective Smith’s testimony.

6. The prosecution did not engage in misconduct in discussing the DNA evidence.

Hall claims that the State engaged in prosecutorial misconduct by discussing DNA

evidence in its opening statement, by presenting evidence regarding the DNA exclusion of

Johnson, and by “overstat[ing] the significance” of the DNA evidence in closing argument. At

trial, Hall did not object to the opening statement, the admission of the expert’s testimony

regarding DNA, or the closing argument.

When the alleged error was not followed by a contemporaneous objection, it shall

only be reviewed by an appellate court under Idaho’s fundamental error doctrine.

Under that doctrine, there must be an error that violates one or more of the

defendant’s unwaived constitutional rights; the error must plainly exist; and the

error must not be harmless.

State v. Hall, 161 Idaho 413, 422–23, 387 P.3d 81, 90–91 (2016).

The first question is whether the alleged misconduct violated a constitutional right. “To

constitute a due process violation, the prosecutorial misconduct must be ‘of sufficient

significance to result in the denial of the defendant’s right to a fair trial.’” Greer v. Miller, 483

U.S. 756, 765 (1987) (quoting United States v. Bagley, 473 U.S. 667, 676 (1985)). “[I]t is not

enough that the prosecutors’ remarks were undesirable or even universally condemned.” Darden

v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks omitted). Rather, “[t]he

relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as

15

to make the resulting conviction a denial of due process.’” Id. (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)).

In its opening statement, the State declared that “[n]obody else on the planet has a match

like that man’s DNA. Nobody whose [sic] ever lived on this planet, nobody who ever will live

on this planet has this man’s DNA.” It also declared that an expert witness “was able to make a

[DNA] profile of the killer.” A prosecutor is permitted to discuss the evidence and the inferences

and the deductions arising therefrom. State v. Sistrunk, 98 Idaho 629, 630, 570 P.2d 866, 867

(1977). It is only misconduct when the statements made are “calculated to inflame the minds of

jurors and arouse prejudice or passion against the accused by statements in his argument of facts

not proved by evidence.” State v. LaMere, 103 Idaho 839, 844, 655 P.2d 46, 51 (1982). Here, the

opening statement was based upon a reasonable inference arising from the upcoming expert’s

testimony. These statements, taken in context, were not intended to arouse prejudice, but to

discuss upcoming evidence. The expert did later testify that a DNA profile had been made of the

killer and of the rarity of finding a DNA match. Thus, the State’s statement did not “so infect the

trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477

U.S. at 181–82. It was made in the context of reasonable discussion of the evidence, which is

permissible under the law. The prosecuting attorney’s comment did not constitute misconduct.

During the presentation of the DNA evidence, two DNA experts testified. Dr. Carla Finis

testified that humans share 99.7% of their DNA, but that there are still “9 million pieces of

discrete information that can be different and variable from one individual to another.” She

explained that to develop a DNA profile for identity testing, experts examine 13 genetic regions

or “loci.” Dr. Finis testified that with “those 13 loci combined with gender locus, we get a

complete profile and that matches an individual, yes, someone could say with a reasonable

degree of scientific certainty that that sample came from that particular individual.” She

explained:

Typically a DNA match is expressed in terms of the relative probability

or the chance that one would go out into the population and happen to, at

random, select an individual and type them and find that profile. With DQA1

polymarker testing, since it’s less variable, the chance will be greater tha[t]

you’ll find somebody that has the profile you’re looking at from the crime scene.

. . . With the STR technology looking again at 13 more variable loci, the

numbers that are generated from the analyses are typically in the 1’s of

trillions . . . . So it’s much more rare that you’d find it in the general population.

16

Immediately thereafter, she was questioned by the prosecutor:

Q. But there aren’t a quadrillion people?

A. No. Actually those numbers are a thousand times over what the current

population is as estimated by the sensus [sic] in 2000 being about 6

billion, or 6 with nine zeroes following it.

Q. . . . But once the numbers of—the probability numbers get greatly

beyond the current population, does that help you to decide whether you

have a match or not?

A. It does. . . . [I]t’s reasonable to ascertain that these sources are the

same.

She continued, stating:

Q. So when you get a probability that is in the trillions . . . does that tell

you then that there could not be another person on the planet who would

have the same DNA that would match at all 13 of those locations?

A. Other than an identical twin, yes, that would be a reasonable

conclusion.

The second DNA expert to testify was Kathryn Colombo. She testified that Hall’s DNA

profile matched the profile obtained from sperm in Ms. Henneman’s vagina. She testified that the

chance of obtaining this particular profile in the Caucasian population is 1 in 49 quadrillion, and

the chances are even smaller in the African American and Hispanic populations. After examining

the statements, the experts in this case did not conflate random match and source probability as

Hall argues, but rather allowed the jury to see the evidence and infer what occurred based upon

statistical probabilities. As such, there was no prosecutorial misconduct in the questioning of

either of the expert witnesses.

In the closing statement in this case, the State discussed the DNA evidence:

We brought Dr. Finis in here to talk about probabilities. We bought her in here to

tell you how this all works so that you could be confident that STR DNA testing

is an identity test of a probability test. It’s an identity test. You identify people

with 13 loci STR DNA testing.

....

And then, of course, you know whose DNA it turned out to be, Erick Hall.

You know about all the big numbers. I didn’t try and write out quadrillion for

you. . . . I submit to you that this element has been proven.

Here, the State properly summarized the testimony of the experts. It reminded the jury of Dr.

Finis’ testimony regarding probabilities, how DNA testing works, and some of the science

behind the findings. It then stated that the DNA found was a match to Erick Hall. This was an

appropriate summary of the admitted expert testimony. The State did not misstate the evidence

17

or frame it in such a way as to “infect the trial with unfairness as to make the resulting conviction

a denial of due process.” Darden, 477 U.S. at 181.

Hall also claims that the presentation of the DNA evidence is “a classic case of the

‘prosecutor’s fallacy,’” and violated his due process rights by overstating the significance of the

DNA match:

The prosecutor’s fallacy is the assumption that the random match

probability is the same as the probability that the defendant was not the source of

the DNA sample. . . . In other words, if a juror is told the probability a member of

the general population would share the same DNA is 1 in 10,000 (random match

probability), and he takes that to mean there is only a 1 in 10,000 chance that

someone other than the defendant is the source of the DNA found at the crime

scene (source probability), then he has succumbed to the prosecutor’s fallacy.

McDaniel v. Brown, 558 U.S. 120, 128 (2010). Specifically, Hall complains that the following

exchange misled the jury:

THE STATE: The reason I ask it is this: Say that you take a blood sample from a

crime scene and a known blood sample from a suspect and you compare those

two and it’s a match. How do you know that somebody else doesn’t match also?

What I’m looking for is to see if there is some numerical way in which

laboratories can express the strength or significance of the DNA match.

DR. FINIS: Yes, there is. Typically, a DNA match is expressed in terms of the

relative probability or the chance that one would go out into the population and

happen to, at random, select an individual and type them and find that profile.

With DQA1 polymarker testing, since it’s less variable the chance will be greater

than you’ll find somebody tha[t] has the profile you’re looking at from the crime

scene.

The numbers tend to run in 1 in tens of thousands to 1 in 100,000’s with

that type for probability of finding someone at random in the population that

would have that profile. With the STR technology looking again at 13 more

variable loci, the numbers that are generated from the analyses are typically in the

1’s of trillions. So that’s 1 with 12 zeros after it, kind of like our budget deficit, or

quadrillions, 1 in – with 10 to the 15th or 1 with 15 zeroes after it. So it’s much

more rare that you’d find in the general population.

THE STATE: But there aren’t a quadrillion people?

DR. FINIS: No. Actually those numbers are a thousand times over what the

current population is estimated by the sensus [sic] in 2000 being about 6 billion,

or 6 with nine zeroes following it.

THE STATE: And so if – we’re going to talk about this in a minute. But once the

numbers of – the probability numbers get greatly beyond the current population,

does that help you decide whether you have a match or not?

18

DR. FINIS: It does. Like I said, that’s at the point where you’ve obtained a clean

single source profile of 13 loci you get these numbers. And based on your

knowledge of the variability and on population genetics, it’s reasonable to

ascertain that these sources are the same.

Review of the transcript reveals the Dr. Finis was careful to explain that random match

probability was the probability that a person selected at random would match the profile, not the

probability of a finding a match in a population of people. The differences between the two are

subtle and easily confused. Random match probability postulates the probability of selecting a

person off the street and having that person’s DNA profile match a given sample. See McDaniel

v. Brown, 558 U.S. 120, 124, 128–29 (2010). It is typically communicated—as was done here—

in one of tens of thousands or hundreds of thousands. The probability of finding a match in a

given population is a very different process and calculus, and requires information about the

frequency of alleles at a particular loci across that population—information which has likely

never been collected. Dr. Finis and the State further clarified random match probability by

illustrating this data with bottles of marbles. Dr. Finis testified at length about DNA generally,

about the testing conducted at her office, and about random match probability. Dr. Finis also

testified at length about what the data she was referencing meant and how it was collected and

analyzed. Taken in context, it is clear that Dr. Finis’ testimony did not overstate the significance

of the DNA evidence.

There was no prosecutorial misconduct in the opening statement, the expert witness

testimony, or the closing statement. Hall has failed to establish that any due process violation

occurred; therefore, no constitutional right was violated. There is no basis for Hall’s claim of

error.

7. Testimony from a DNA expert witness who supervised the DNA testing did not

violate Hall’s Sixth Amendment right to confrontation.

Dr. Finis provided expert testimony regarding the DNA testing conducted prior to finding

a match with Hall. Dr. Finis supervised Ann Bradley, the person who did all of the physical

processing of the sample. Ms. Bradley and Dr. Finis each conducted independent data

interpretations and arrived at individual conclusions. Dr. Finis testified that they “processed and

reported on 94 different individuals . . . and all of them were eliminated as to the source of the

DNA.” In September 2001, another scientist, Cindy Hall, did the physical processing of samples

utilizing another DNA method involving 35 additional individuals “who we eliminated as

possible donors of the sperm fraction.” There was no objection to Dr. Finis’ testimony at trial.

19

On appeal, Hall contends that his Confrontation Clause rights were violated because Dr. Finis

did not complete “hands-on testing” of all of the DNA samples and because he was unable to

question the party who completed the “hands-on testing.”

“Whether the admission of [evidence] violated [Hall’s] right to confront witnesses under

the Sixth Amendment is a question of law over which the Court exercises free review.” State v.

Shackelford, 150 Idaho 355, 372, 247 P.3d 582, 599 (2010). As noted above, unobjected-to

evidence is reviewed under the fundamental error doctrine. State v. Perry, 150 Idaho 209, 226,

245 P.3d 961, 978 (2010).

The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him.” The United States Supreme Court has held that the clause bars “admission of testimonial

statements of a witness who did not appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S.

36, 53–54 (2004). “It is the testimonial character of the statement that separates it from other

hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the

Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006).

Various formulations of this core class of testimonial statements exist: ex

parte in-court testimony or its functional equivalent—that is, material such as

affidavits, custodial examinations, prior testimony that the defendant was unable

to cross-examine, or similar pretrial statements that declarants would reasonably

expect to be used prosecutorially, extrajudicial statements . . . contained in

formalized testimonial materials, such as affidavits, depositions, prior testimony,

or confessions, statements that were made under circumstances which would lead

an objective witness reasonably to believe that the statement would be available

for use at a later trial.

Crawford, 541 U.S. at 51–52 (internal quotations and citations omitted).

In determining whether a statement is testimonial in nature, the “inquiry should focus on

whether the technician’s statements were made with a primary objective of creating an

evidentiary record to establish or prove a fact at trial.” State v. Stanfield, 158 Idaho 327, 337, 347

P.3d 175, 185 (2014). When addressing expert testimony, “[a] defendant’s right to confrontation

is violated when ‘an expert acts merely as a well-credentialed conduit,’ and does not provide any

independent expert opinion.” Id. at 338, 347 P.3d at 186 (quoting United States v. Ramos-

Gonzalez, 664 F.3d 1, 5–6 (1st Cir. 2011) (holding that testimony violated Confrontation Clause

because the expert simply recounted results of another expert’s testing)). “However, when an

20

expert independently evaluates objective raw data obtained from an analyst, and exercises his or

her own judgment in reaching a conclusion, the expert is not a conduit for the analyst’s

conclusion. Id. (citing United States v. Summers, 666 F.3d 192, 201–02 (4th Cir. 2011)). “Rather,

the testifying expert’s opinion is an ‘original product’ that can be readily ‘tested through cross-

examination.’” Id. at 339, 347 P.3d at 187 (quoting Summers, 666 F.3d at 202) (internal

quotations and citation omitted). “The testimony of an expert witness who arrives at an

independent conclusion is permissible under the Confrontation Clause even where other non-

testifying analysts have provided underlying data or conducted portions of the testing.” Id. at

338, 347 P.3d at 186.

Here, Dr. Finis independently interpreted the data and arrived at her own conclusions

based upon the raw evidence. Further, she supervised Ms. Bradley, who did all of the physical

processing of the samples and conducted her own independent review of the data. With regard to

the thirty-five additional individuals tested by Cindy Hall, Dr. Finis again explained that

someone else did the physical processing of the samples, but Dr. Finis again independently

reviewed and analyzed the data. Her opinions and data analyses were thus her original product,

which were available to be tested on cross-examination. She was not a conduit for the opinions

of another expert because she provided her own opinions on work she supervised and partly

completed. Dr. Finis’ testimony was permissible under the Sixth Amendment. Therefore, there

was no fundamental error in the admission of Dr. Finis’ testimony.

8. The State properly presented and the district court properly admitted Exhibits 118,

119, and 120.

Dr. Glen Groben—the forensic pathologist who conducted the autopsy on Ms.

Henneman’s body—explained that fixed lividity involves the pooling of blood after death and

that he observed a “specific livor pattern on [Ms. Henneman’s] body.” Based upon the lividity

patterns, Dr. Groben affirmed that he had an opinion on “how [Ms. Henneman] was tied just

after death,” and that Exhibits 118, 119, and 120 would help illustrate his opinion. These exhibits

show a reenactment of the body as it is postulated to have been hogtied either before or soon

after Ms. Henneman’s death. The State moved for admission of those exhibits, and Hall objected

based on lack of foundation and unfair prejudice. Outside the jury’s presence, the State made an

offer of proof, and the district court concluded there was sufficient foundation to admit both Dr.

Groben’s testimony and Exhibits 118, 119, and 120. When the jury returned, Hall questioned Dr.

Groben, who explained that Ms. Henneman was “strangled and then placed on her stomach when

21

this was done. . . . [o]r [it] could have been at or around the time of death.” Hall objected again,

contending that, because Ms. Henneman being tied was “not part of the cause of death or part of

that portion of the examination[,] then it’s not relevant.” The district court reasoned, “this

evidence is relevant because it explains the condition of the body, if not before death then

perhaps—then it would seem almost certainly for the period of approximately 12 hours after

death.”

Hall also argued that, irrespective of Dr. Groben’s opinion, Exhibits 118, 119, and 120

were unfairly prejudicial. The district court concluded that “Exhibit 120 is the one that’s,

perhaps, the most difficult for the jurors because it’s a—it’s top down. It shows the buttocks area

and it—it is probably the most—if there’s a shock factor, if you will, it probably has the most

shock factor to a potential juror.” Nevertheless, the court reaffirmed the relevancy of the photos

and concluded, “Any good evidence is prejudicial. This evidence is very prejudicial,

substantially prejudicial to the defendant, but I do not think that it is unfairly prejudicial.”

(emphasis added).

Dr. Groben then explained that he reenacted the positioning of Ms. Henneman’s “body in

a manner that would account for the marks, the lividity patterns” that he saw during the autopsy.

Exhibits 118, 119, and 120 were illustrative of how Dr. Groben positioned Ms. Henneman’s

body based upon the lividity patterns. Hall contends the district court erred by admitting Dr.

Groben’s “reenactment” testimony and Exhibits 118, 119, and 120, because there was a lack of

foundation, they were irrelevant, and unfairly prejudicial. Hall further contends that admission of

the evidence constitutes prosecutorial misconduct rising to the level of fundamental error

because the evidence is “speculative [and] extraordinarily prejudicial.”

a. The district court did not err in admitting the reenactment expert witness

testimony or photos.

“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). While the

relevance of evidence is subject to free review, the lower court’s “determination of whether the

probative value of the evidence outweighs its prejudicial effect is reviewed for an abuse of

discretion.” State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008) (internal citations

omitted). “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

(1967)].” State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010). Here, Hall objected on

22

the grounds of lack of foundation for the testimony and the reenactment photos, relevancy of the

testimony, and unfair prejudice of the reenactment photos, so the harmless error test applies to

these issues. The harmless error test is as follows: “Where the defendant meets his initial burden

of showing that a violation occurred, the State then has the burden of demonstrating to the

appellate court beyond a reasonable doubt that the constitutional violation did not contribute to

the jury’s verdict.” Id. The first question is whether the evidence was properly admitted.

(1) There was adequate foundation for the expert opinion on lividity patterns.

Hall argues that there was inadequate foundation for the expert opinion on the lividity

patterns. Idaho Rule of Evidence 702 (2004) governs the admissibility of expert testimony. It

states:

If scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise.

“The inquiry under I.R.E. 702 is whether the expert will testify to scientific knowledge that will

assist the trier of fact to understand the evidence or to determine a fact in issue, ‘not whether the

information upon which the expert’s opinion is based is commonly agreed upon.’” State v. Perry,

139 Idaho 520, 522, 81 P.3d 1230, 1232 (2003) (quoting State v. Merwin, 131 Idaho 642, 646,

962 P.2d 1026, 1030 (1999)).

“Expert opinion must be based upon a proper factual foundation.” Bromley v. Garey, 132

Idaho 807, 811, 979 P.2d 1165, 1169 (1998). “If, based on an expert’s training, one possible

cause is observed with greater frequency than others, this information would be useful to the trier

of fact.” Merwin, 131 Idaho at 646, 962 P.2d at 1031; see also Lanham v. Idaho Power Co., 130

Idaho 486, 492, 943 P.2d 912, 918 (1997) (holding it was not error to permit an expert to “testify

about possible causes of the fire. All reasonably likely causes of the fire were relevant because

the fire’s cause was a central element of the [] causes of action.”). “[E]xpert medical opinion

testimony must be based upon a ‘reasonable degree of medical probability’ in order to be

admissible.” Bloching v. Albertson’s, Inc., 129 Idaho 844, 846, 934 P.2d 17, 19 (1997) (quoting

Roberts v. Kit Mfg. Co., 124 Idaho 946, 948, 866 P.2d 969, 971 (1993)).

Here, Dr. Groben’s opinion regarding Ms. Henneman’s position was based upon a proper

factual foundation of lividity patterns found on the body. Dr. Groben’s opinion regarding how

Ms. Henneman was tied was not based upon mere “speculation” or “possibilities,” but was based

23

upon the lividity patterns observed on the body. Hall did not object to Dr. Groben’s testimony

about these observations. Dr. Groben testified that after Ms. Henneman’s body was recovered

from the river he observed a “ligature around the neck on a single overhand knot tight around her

neck, a piece of clothing. Around the left wrist was tied in a double overhand knot was another

piece of dark clothing tied tightly around the left wrist.” Without objection, Dr. Groben used

Exhibits 113 through 117 to render opinions regarding the lividity patterns on Ms. Henneman’s

body. When Dr. Groben was asked, “based on the lividity patterns that you’ve established,

Doctor, did you form a medical opinion on how the victim was tied just after death,” he

responded, “Yes.” He determined that hogtied positioning was the most likely cause. This was

evidence from which the jury could potentially determine the nature and circumstances of Ms.

Henneman’s death, which was a key inquiry in the case. Further, Dr. Groben explained at length

the basis for his opinions, and admitted their limitations. The district court did not abuse its

discretion in concluding that Dr. Groben’s expert witness testimony regarding the lividity

patterns was supported by a sufficient factual foundation.

(2) There was adequate foundation for the reenactment photos.

Hall argues that there was inadequate foundation for the reenactment photos because “Dr.

Groben did not observe [Ms. Henneman’s] body around the time of her death, and her body was

not hogtied when it was recovered from the Boise River.” However, Exhibits 118, 119, and 120

were admitted for illustrative purposes to explain the reenactment done by Dr. Groben, which

reflected his observations of the lividity patterns on Ms. Henneman’s body.

The trial court’s decision to admit the reenactment photos is reviewed for an abuse of

discretion. Vendelin v. Costco Wholesale Corp., 140 Idaho 416, 429, 95 P.3d 34, 47 (2004).

This Court has adopted a three part test for determining whether

the district court abused its discretion: (1) whether the court

correctly perceived that the issue was one of discretion; (2)

whether the court acted within the outer boundaries of its

discretion and consistently with the legal standards applicable to

the specific choices available to it; and (3) whether it reached its

decision by an exercise of reason.

Stevens, 146 Idaho at 143, 191 P.3d at 221.

As explained in Zolbert v. Winters, 109 Idaho 824, 828, 712 P.2d 525, 529 (1985), “It is

established that the use of exhibits by a testifying witness in order to supplement or illustrate

events is proper insofar as the differences between the events depicted and the events observed

24

are explained by the witness and the exhibit is not deceptive.” Moreover, “[e]xperiments based

upon reasonably similar circumstances are admissible to show the existence or nonexistence of a

fact, and the circumstances do not need to be exactly the same as those surrounding the event.”

State v. Cypher, 92 Idaho 159, 171, 438 P.2d 904, 916 (1968). Finally, “[a]ccuracy . . . is not the

standard governing relevance of illustrative evidence; rather, the illustrative evidence must only

be relevant to the witness’s testimony,” which is “particularly true when the events surrounding a

death are in dispute.” Stevens, 146 Idaho at 143, 191 P.3d at 221.

When the State asked Dr. Groben if he had formed a medical opinion on how Ms.

Henneman was tied just after death, the State specifically asked Dr. Groben if he had “create[d]

some images that would illustrate” his opinion and then offered Exhibits 118, 119, and 120. The

State explained, “these exhibits are simply illustrative of the position that the Doctor believes the

victim’s arms and legs were tied in for 10 to 12 hours after death. . . . It explains the marks on the

body and in illustrating the Doctor’s testimony so that the jury could understand it.” Because the

Exhibits were offered to illustrate the events described, their admission was proper. Experiments

based upon reasonably similar circumstances—as here—do not need to exactly depict the event.

Exhibits 118, 119, and 120 were offered to explain and illustrate Dr. Groben’s testimony, and as

such were appropriately admitted.

(3) The expert opinion regarding the lividity patterns was relevant.

Hall argues that the expert opinion regarding the lividity patterns was irrelevant.

Evidence is relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” I.R.E. 401 (2004). “All relevant evidence is admissible except as

otherwise provided by these rules or by other rules applicable in the court of this state.” I.R.E.

402 (2004). “The question of whether evidence is relevant is reviewed de novo, while the

decision to admit relevant evidence is reviewed for an abuse of discretion.” State v. Shutz, 143

Idaho 200, 202, 141 P.3d 1069, 1071 (2006).

Dr. Groben’s expert opinion was admitted to support the State’s theory regarding “the

method in which [Hall] has used the piece of clothing [which] explains the livor patterns on the

legs, arms and torso.” Moreover, the State explained, “It demonstrates, first off, the continued

confinement of the person, whether or not the assailant knew she was dead or not. I think it’s part

of the course of the crime, and it’s the sort of thing that courts traditionally permit so that the jury

25

has an opportunity to see the flow of the crime.” The condition of the victim’s body, including

the condition after death, is relevant. See State v. Leavitt, 116 Idaho 285, 290–91, 775 P.2d 599,

604–05 (1989) (holding that the defendant having removed the sexual organs of animals was

relevant because of the mutilation of the victim’s body). Here, the district court perceived the

matter as discretionary and acted in accordance with applicable legal standards in admitting the

evidence. Dr. Groben’s testimony was relevant in determining the severity of the crime and the

manner in which it was committed. The district court did not abuse its discretion by allowing its

admission.

(4) The reenactment photos were not unfairly prejudicial.

Hall argues that the reenactment photos were unfairly prejudicial. “Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” I.R.E. 403 (2004).

“[W]here allegedly inflammatory evidence is relevant and material as to an issue of fact, the trial

court must determine whether the probative value is substantially outweighed by the danger of

unfair prejudice.” Winn, 121 Idaho at 853, 828 P.2d at 882. “The district court’s ruling that the

probative value of the evidence was not substantially outweighed by the danger of unfair

prejudice may be overturned only for an abuse of discretion.” State v. Labelle, 126 Idaho 564,

567, 887 P.2d 1071, 1074 (1995).

As stated above, photographs of a murder victim may be admitted to aid the jury in

arriving at a “fair understanding of the evidence.” Winn, 121 Idaho at 853, 828 P.2d at 882. “The

fact that the photographs depict the actual body of the victim and the wounds inflicted on the

victim and may tend to excite the emotions of the jury is not a basis for excluding them.” Id.

Additionally, “[t]he fact that certain evidence is horrifying and gruesome, is not in and of itself

sufficient reason for exclusion.” Leavitt, 116 Idaho at 290, 775 P.2d at 604.

Exhibits 118, 119 and 120 were necessary to fully explain Dr. Groben’s testimony

regarding his theory about the lividity patterns on Ms. Henneman’s body. As discussed above,

the evidence is relevant and probative because it illustrates the position of Ms. Henneman’s body

at or around the time of her death. The three photographs depicting different views of Ms.

Henneman’s body did not “depict the same scene” as Hall argues, but showed the lividity

patterns on the top and on each side of her body. “The jury is entitled to have an accurate picture

26

of all the circumstances, and although such information may be gruesome in nature it is

necessary to make an intelligent fact finding decision.” Id. Here, the three reenactment photos

illustrated Dr. Groben’s testimony, and were not unfairly prejudicial. The district court perceived

the matter as discretionary, acted in accordance with applicable legal standards, and reached its

conclusion through an exercise of reason. While the evidence is prejudicial, it was not unfairly

prejudicial because the jury was entitled to a complete picture of the evidence related to the

crime. The prejudice produced by the pictures, while not insubstantial, did not substantially

outweigh the probative value of illustrating the position of Ms. Henneman’s body at or around

the time of her death, as this position may have been important in determining the time and cause

of death and the degree of depravity involved in the commission of the crime. Thus, the district

court did not abuse its discretion in determining that the reenactment photos were not unfairly

prejudicial. The district court did not err in admitting Exhibits 118, 119, and 120, or in allowing

Dr. Groben to testify about them. Hall’s claims regarding these exhibits fail the harmless error

test.

b. The prosecuting attorney did not engage in misconduct by presenting the

testimony of Dr. Groben and the reenactment photos.

Hall argues that it was misconduct for the State to present Dr. Groben’s testimony

regarding the lividity patterns and the positioning of the body, and to seek admission of the

reenactment photos. However, no objection was made at trial. “Where prosecutorial misconduct

was not objected to at trial, Idaho appellate courts may only order a reversal when the defendant

demonstrates that the violation in question qualifies as fundamental error.” State v. Perry, 150

Idaho 209, 226, 245 P.3d 961, 978 (2008). Fundamental error requires that there be an “error that

violates one or more of the defendant’s constitutional rights; the error must plainly exist; and the

error must not be harmless.” State v. Hall, 161 Idaho 413, 423, 387 P.3d 81, 91 (2016). “[E]very

defendant has a Fourteenth Amendment right to due process and it is axiomatic that a fair trial in

a fair tribunal is a basic requirement of due process.” Perry, 150 Idaho at 224, 245 P.3d at 976

(internal quotations omitted). However, the existence of properly admitted evidence does not

violate that constitutional right. The expert witness testimony and the reenactment photos were

properly admitted and Hall’s constitutional right to a fair trial was not violated.

9. Hall did not object to the jury instructions on the elements of first-degree murder.

Hall contends that jury instructions 13 and 13A impermissibly reduced the State’s burden

of proof. Hall did not object to the jury instructions.

27

“Whether jury instructions fairly and adequately present the issues and state the

applicable law is a question of law over which this Court exercises free review.” State v.

Shackelford, 150 Idaho 355, 373, 247 P.3d 582, 600 (2009) (quoting State v. Humpherys, 134

Idaho 657, 659, 8 P.3d 652, 654 (2000)). “The invited error doctrine precludes a criminal

defendant from ‘consciously’ inviting district court action and then successfully claiming those

actions are erroneous on appeal.” State v. Abdullah, 158 Idaho 386, 420, 348 P.3d 1, 35 (2014).

“It has long been the law in Idaho that one may not successfully complain of errors one has

acquiesced in or invited. Errors consented to, acquiesced in, or invited are not reversible.” Id. at

420–21, 348 P.3d at 35–36 (quoting State v. Owsley, 105 Idaho 836, 838, 673, P.2d 436, 438

(1983)); see also State v. Dunlap, 155 Idaho 345, 379, 313 P.3d 1, 35 (2013) (applying invited

error to a capital case).

Here, at the jury instruction conference, the State suggested that changes be made to

Instruction 12 because it was not clear on first-degree murder elements. After a brief delay, the

court adopted some modifications. The court removed Instruction 12 and added 13A to give “the

elements of first degree murder and [to give the jury] instructions about what to do if they do not

find the elements of first degree murder have been proven beyond a reasonable doubt.” After

discussing the remaining instructions, the court provided the updated versions of Instructions 13

and 13A to counsel. At this point, Hall’s counsel stated there was no objection to the

“instructions as constituted.” Hall participated in the discussions and alterations of the

instructions and ultimately approved both. Thus, any error was invited error, and is not the

proper basis for challenging the jury’s verdict on appeal.

10. There was sufficient evidence to prove forcible rape as it was charged in this case.

Hall contends there was insufficient evidence to support his conviction for rape because

the State failed to prove beyond a reasonable doubt that Ms. Henneman resisted.

“The only inquiry for this Court is whether there is substantial evidence upon which a

reasonable jury could have found that the State met its burden of proving the essential elements

of [the crime] beyond a reasonable doubt.” State v. Adamcik, 152 Idaho 445, 460, 272 P.3d 417,

432 (2012). “The relevant inquiry is not whether this Court would find the defendant to be guilty

beyond a reasonable doubt, but whether ‘after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 316 (1979)). “In

28

conducting this analysis, the Court is required to consider the evidence in the light most

favorable to the State, and we do not substitute our judgment for that of the jury on issues of

witness credibility, weight of the evidence, or reasonable inferences to be drawn from the

evidence.” Id.; see also State v. Porter, 130 Idaho 772, 787, 948 P.2d 127, 142 (1997) (applying

the rule when the evidence is conflicting), and State v. Sheahan, 139 Idaho 267, 286, 77 P.3d

956, 975 (2003) (applying the rule when the evidence is circumstantial).

Hall was charged with rape under Idaho Code section 18-6101(3), which required the

State to prove beyond a reasonable doubt that he caused his penis to penetrate, however slight,

Ms. Henneman’s vaginal opening “[w]here she resists but her resistance [was] overcome by

force or violence.” Resistance “does not require that rape victims resist to their utmost physical

ability” and “verbal resistance is sufficient.” State v. Jones, 154 Idaho 412, 420, 299 P.3d 219,

420 (2013). “The importance of resistance by the woman is simply to show two elements of the

crime—the assailant’s intent to use force in order to have carnal knowledge, and the woman’s

nonconsent.” Id. at 420, 299 P.3d at 227 (quoting State v. Andreason, 44 Idaho 396, 397, 257 P.

370, 371 (1927)). Additionally, Instruction 25 explained to the jury that “the amount of

resistance need only be such as would show the victim’s lack of consent to the act.”

At trial, Hall’s counsel conceded that Ms. Henneman “absolutely” did not consent. This

concession was supported by the evidence. Dr. Groben acknowledged that Ms. Henneman’s

body showed no defensive wounds and there were no medical findings indicating trauma or other

evidence of forcible rape, which is generally not found in rape cases involving adult women.

However, not only was Hall’s DNA found in Ms. Henneman’s vagina, but when asked whether

she was still alive at the time of intercourse, Hall responded, “Um, I think so. . . . Cause I ain’t

gonna go have sex with no dead person that’s for damn sure.” Additionally, Ms. Henneman’s

body was found unclothed, suggesting that the rape and murder were contemporaneous. Ms.

Henneman’s sister later testified that Ms. Henneman was “very” cautious and “careful,” being

“especially leery of men” particularly as a flight attendant. Subsequently, Hall’s counsel

conceded that Ms. Henneman “was a careful woman, she was a cautious woman. She was leery

of men. She was friendly, but she wasn’t a fool.”

Considering the brutal manner in which Ms. Henneman was murdered by strangulation,

Hall’s DNA being retrieved from her vagina, the condition of her unclothed body, and Hall’s

concession that he would not have had intercourse with her after the murder, it was reasonable

29

for Hall’s counsel to concede that this was not consensual intercourse and for the jury to infer

from all of the evidence that Hall forcibly raped Ms. Henneman. Other jurisdictions have held,

“the circumstance that defendant strangled [victim] to death strongly evidences lack of consent

to sexual intercourse.” People v. Story, 204 P.3d 306, 318 (Cal. 2009). While other scenarios are

possible, “the jury was not compelled to so find. The strangulation strongly suggests absence of

consent.” Id.

When all of the evidence—particularly the condition of Ms. Henneman’s body and the

manner in which she was murdered—is considered in a light most favorable to the State, Hall

has failed to establish that no rational jury would have found all of the essential elements of rape.

There was sufficient evidence to prove forcible rape as it was charged in this case.

11. The alleged errors in the aggregate did not result in cumulative error at trial.

Hall argues that the accumulation of errors deprived him of his constitutional rights to

due process and a fair trial before an impartial jury. Because Hall has failed to demonstrate any

error, this Court will not reverse based upon the cumulative error doctrine. “[A] necessary

predicate to the application of the doctrine is a finding of more than one error.” State v. Perry,

150 Idaho 209, 230, 245 P.3d 961, 982 (2010).

B. SENTENCING PHASE ISSUES ON DIRECT APPEAL

12. Dunlap and Abdullah are controlling precedent.

Hall argues that the plain language of Idaho Code section 19-2827 requires that the

Supreme Court consider all errors at sentencing, including those that were not objected to by

defendant and have not been raised by defendant on appeal. Hall further argues that fundamental

error review of unpreserved errors in capital cases violates separation of powers principles,

denies meaningful appellate review of death sentences required by the Eighth and Fourteenth

Amendments of the United States Constitution, and violates his due process rights.

Section 19-2827 provides, in pertinent part:

(a) Whenever the death penalty is imposed, and upon the judgment becoming

final in the trial court, the sentence shall be reviewed on the record by the

Supreme Court of Idaho . . . .

(b) The Supreme Court of Idaho shall consider the punishment as well as any

errors enumerated by way of appeal.

In addressing the review required by section 19-2827, this Court has declared that

“section 19-2827 requires us to review not only issues preserved by way of objection, but all

claims of error the defendant raises on appeal. . . . However, our review is not unlimited; nothing

30

in the text of the statute requires us to consider errors not presented by the appellant.” State v.

Dunlap, 155 Idaho 345, 362, 313 P.3d 1, 18 (2013). Accordingly, this Court will “address all of

the errors a defendant raises, whether preserved by objection or not, but we will not scour the

record in an effort to find errors not identified by the defendant.” Id.

The issues raised by Hall are similar to those raised in Dunlap, 155 Idaho at 362, 313

P.3d at 18, and identical to those raised in State v. Abdullah, 158 Idaho 386, 450, 348 P.3d 1, 65

(2015). In Abdullah, this Court unequivocally reaffirmed the standard elucidated in Dunlap:

Abdullah raises nearly identical arguments as the defendant in Dunlap

regarding the standard of review for unpreserved errors in capital cases. He argues

that the application of the fundamental error standard in capital cases (1)

disregards the plain language of Idaho Code section 19-2827, which requires the

Court to review “all claims of error the defendant raises on appeal” in a capital

case . . . (2) violates separation of powers principles; (3) violates Eighth

Amendment and Fourteenth Amendment principles of meaningful appellate

review of death sentences; and (4) violates his due process rights. These

arguments are similar or identical to those raised by Dunlap . . . . Thus, this Court

has considered the[] arguments raised by Abdullah numerous times throughout

the Dunlap case. Upon our reconsideration—again—of these arguments in favor

of revisiting the Dunlap decision, we are unpersuaded. This Court reaffirms that

the standard of review for unpreserved errors in capital cases is the fundamental

error standard and the standard of review for preserved errors in capital cases is

the harmless error standard.

Abdullah, 158 Idaho at 450, 348 P.3d at 65 (emphasis added). By raising identical issues as those

previously raised, Hall invites this Court to revisit prior decisions and second-guess established

reasoning. “[S]tare decisis dictates that we follow [controlling precedent], unless it is manifestly

wrong, unless it has proven over time to be unjust or unwise, or unless overruling it is necessary

to vindicate plain, obvious principles of law and remedy continued injustice.” State v. Grant, 154

Idaho 281, 287, 297 P.3d 244, 250 (2013). We decline to do so. The standards of review

elucidated in Dunlap and Abdullah remain controlling law.

13. The statutory aggravating circumstances in Idaho Code sections (9)(e), (9)(f), and

(9)(h) are not unconstitutionally vague and section 19-2515(9)(g) was properly

submitted to the jury.

Hall attacks each of the four aggravating circumstances the jury concluded were present

in the commission of the murder. He contends that three of the statutory aggravators, set forth in

Idaho Code sections 19-2515(9)(e), (9)(f), and (9)(h), are unconstitutionally vague because they

fail to provide the sentencing authority with sufficient guidance to avoid the arbitrary and

capricious application of capital punishment in violation of the Eighth Amendment. Hall further

31

contends that the district court erred in submitting the other aggravator, found in Idaho Code

section 19-2515(9)(g), to the jury because it was the basis for his first-degree murder conviction.

These contentions will be addressed in turn.

“Constitutional questions are reviewed de novo.” Dunlap, 155 Idaho at 377, 313 P.3d at

33. The Eighth Amendment, as interpreted in Furman v. Georgia, 408 U.S. 238 (1972),

“mandates that where discretion is afforded a sentencing body on a matter so grave as the

determination of whether a human life should be taken or spared, that discretion must be suitably

directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg

v. Georgia, 428 U.S. 153, 188 (1976). Thus, “[a]n Eighth Amendment claim based upon

vagueness examines whether the challenged aggravating circumstance, together with any

limiting instruction, adequately channels the discretion of the sentencing body in order to prevent

the imposition of an arbitrary and capricious sentence.” State v. Leavitt, 121 Idaho 4, 5, 822 P.2d

523, 524 (1991).

Hall complains that the following aggravating circumstances in section 19-2515(9) are

unconstitutionally vague:

(e) The murder was especially heinous, atrocious or cruel, manifesting

exceptional depravity.

(f) By the murder, or circumstances surrounding its commission, the defendant

exhibited utter disregard for human life. . . .

....

(h) The defendant, by prior conduct or conduct in the commission of the murder

at hand, has exhibited a propensity to commit murder which will probably

constitute a continuing threat to society.

This Court has adopted the following definition for “heinous, atrocious and cruel”:

It is our interpretation that heinous means extremely wicked or shockingly evil;

that atrocious means outrageously wicked and vile; and, that cruel means

designed to inflict a high degree of pain with utter indifference to, or even

enjoyment of, the suffering of others. What is intended to be included are those

capital crimes where the actual commission of the capital felony was

accompanied by such additional acts as to set the crime apart from the norm of

capital felonies the conscienceless or pitiless crime which is unnecessarily

torturous to the victim.

State v. Osborn, 102 Idaho 405, 418, 631 P.2d 187, 200 (1981) (internal quotations and citations

omitted). “Exceptional depravity” has been defined as confined to situations where “depravity is

apparent to such an extent as to obviously offend all standards of morality and intelligence.” Id.

32

In Maynard v. Cartwright, 486 U.S. 356, 363–64 (1988), the United States Supreme

Court held that an Oklahoma aggravating circumstance—that the murder be “especially heinous,

atrocious, or cruel”—did not give sufficient guidance to the jury in capital sentencing.

Accordingly, the Supreme Court held the aggravator was unconstitutionally vague under the

Eighth Amendment. Id. However, if the statutory language defining the aggravating

circumstance is vague, it can still pass constitutional muster if the statute contains a limiting

construction that gives sufficient guidance to the sentencing authority. State v. Pizzuto, 119 Idaho

742, 772, 810 P.2d 680, 710 (1991) (discussing Godfrey v. Georgia, 446 U.S. 420, 428 (1980)).

Section 19-2515(9)(e)’s language tracks some of the language in the Oklahoma statute

condemned by Maynard, but it also includes a limiting construction: “manifesting exceptional

depravity.” This limiting construction and the aggravating circumstance as a whole have

repeatedly been interpreted by this Court as constitutionally sufficient. Osborn, 102 Idaho at 418,

631 P.2d at 200; see also Leavitt, 121 Idaho at 6, 822 P.2d at 525; State v. Lankford, 116 Idaho

860, 877, 781 P.2d 197, 214 (1989).

Hall argues that the “exceptional depravity” language is not a meaningful limiting

construction, and was determined to be unconstitutionally vague by the Eighth Circuit Court of

Appeals in Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990). Moore dealt with whether the phrase

“manifested exceptional depravity by ordinary standards of morality and intelligence” in a

Nebraska statutory aggravating circumstance violated the Eighth Amendment. Id. at 1228. The

Eighth Circuit concluded that this phrase was facially unconstitutional and that the Nebraska

Supreme Court had not provided adequate direction in the construction of the phrase to limit the

discretion of the sentencing body and minimize the risk of arbitrary application of the death

sentence. Id. at 1229.

The aggravating circumstance in section 19-2515(9)(e)—that the murder was “especially

heinous, atrocious or cruel, manifesting exceptional depravity”—was determined constitutional

by this Court after Moore was decided. Leavitt, 121 Idaho at 6, 822 P.2d at 525. Additionally, in

2004, the Ninth Circuit determined that the limiting construction provided by this Court for

Section 19-2515(9)(e) passed constitutional muster. Leavitt v. Arave, 383 F.3d 809, 835–37 (9th

Cir. 2004) [hereinafter Arave for the Ninth Circuit case Leavitt v. Arave, Leavitt for the Idaho

Supreme Court case State v. Leavitt].

33

Hall argues that section 19-2515(9)(e) was determined constitutional by this Court when

judges were involved in capital sentencing, but the analysis changes when juries are involved,

because they are less sophisticated and experienced. Admittedly, this Court’s determinations in

Leavitt and Lankford relied on the capacity of judges to understand the law and interpret that

language in a consistent way. Leavitt, 121 Idaho at 6, 822 P.2d at 525; Lankford, 116 Idaho at

877, 781 P.2d at 214. However, the identity of the sentencing authority was not an issue in

Osborn, when the terms of section 19-2515(9)(e) were defined and the limiting construction was

adopted, nor was it mentioned when the Ninth Circuit approved this Court’s construction in

Arave. Osborn, 102 Idaho at 417–18, 631 P.2d at 199; Arave, 383 F.3d at 835–37. As indicated

above, the statutory aggravating circumstance in section 19-2515(9)(e) has been determined

constitutional time and time again. Hall has provided no basis, principled or otherwise, to

challenge this authority. There was no error in the use of this aggravator.

Hall also challenges the language in Idaho Code section 19-2515(9)(f) as

unconstitutionally vague. The aggravating circumstance in section 19-2515(9)(f), as indicated

above, is that “[b]y the murder, or circumstances surrounding its commission, the defendant

exhibited utter disregard for human life.” This circumstance has also been repeatedly determined

constitutional—most notably by the United States Supreme Court in Arave v. Creech, 507 U.S.

463, 471–77 (1993). Hall contends that the shift from judge to jury sentencing requires revisiting

this issue, even in light of this Court’s rejection of this argument in Dunlap and Abdullah.

Dunlap, 155 Idaho at 377, 313 P.3d at 33 (“We hold that the utter disregard aggravator is not

rendered unconstitutional by the change from judge to jury sentencing.”); Abdullah, 158 Idaho at

463, 348 P.3d at 78 (“We reaffirm Dunlap’s holding that the utter disregard aggravator with a

limiting construction is not void for vagueness under the Eighth Amendment.”). We disagree.

We decline to revisit these issues, as they were properly resolved in Dunlap and Abdullah.

Hall also challenges the constitutionality of the aggravating circumstance found in

section 19-2515(h), that “the defendant, by prior conduct or conduct in the commission of the

murder at hand, has exhibited a propensity to commit murder which will probably constitute a

continuing threat to society.” He argues that this aggravator overlaps with section 19-

2515(9)(e)’s heinous, atrocious and cruel language such that a jury would have difficulty

separating them in sentencing. Accordingly, he argues that this Court’s approval of the

34

propensity aggravator in State v. Creech, 105 Idaho 362, 370, 670 P.2d 463, 471 (1983), should

be revisited because juries are now involved in sentencing.

In Creech, this Court declared:

it cannot be asserted that the “propensity” circumstance could conceivably be

applied to every murderer coming before a court in this state. We would construe

“propensity” to exclude, for example, a person who has no inclination to kill but

in an episode of rage, such as during an emotional family or lover’s quarrel,

commits the offense of murder. We would doubt that most of those convicted of

murder would again commit murder, and rather we construe the “propensity”

language to specify that person who is a willing, predisposed killer, a killer who

tends toward destroying the life of another, one who kills with less than the

normal amount of provocation. We would hold that propensity assumes a

proclivity, a susceptibility, and even an affinity toward committing the act of

murder.

105 Idaho at 370–71, 670 P.2d at 471–72. In 2015, this Court noted: “we have upheld the

propensity aggravator, when combined with [the Creech] limiting construction, against

challenges that it is vague or that it unconstitutionally lowers the burden of proof.” Dunlap v.

State, 159 Idaho 280, 299, 360 P.3d 289, 308 (2015). Similarly, the federal district court for the

District of Idaho has repeatedly determined that the propensity aggravator with the Creech

limiting construction is sufficiently narrow to channel the sentencer’s discretion and avoid

arbitrary application of the death sentence. Beam v. Paskett, 744 F. Supp. 958, 964 (D. Idaho

1990) aff’d in part, rev’d in part on other grounds, 966 F.2d 1563 (9th Cir. 1992); see also

Creech v. Hardison, 2010 WL 1338126 *21 (D. Idaho 2010) (explaining that the federal district

court has repeatedly affirmed the constitutionality of Idaho’s propensity aggravator with the

limiting construction). The advent of jury sentencing does not alter the constitutional vagueness

analysis because of the clarity of the limiting construction in Creech and the strength of the

subsequent pronouncements by this Court and the federal district court that the propensity

aggravator is not unconstitutionally vague. Indeed, in Beam, the federal district court noted that

the propensity aggravator is “less susceptible to an arbitrary and capricious application than the

other challenged sentencing factors” because of the limiting construction in Creech. Beam, 744

F. Supp. at 964. Juries are capable of differentiating a person predisposed to killing from a

person who happens to kill in a fit of passion. We reaffirm that the propensity aggravator in

section 19-2515(9)(h) is not unconstitutionally vague.

Finally, Hall argues that the felony-murder aggravator in section 19-2515(g) violates the

Eighth and Fourteenth Amendments because it does not meaningfully narrow the class of

35

persons eligible for the death penalty in cases where the defendant is convicted on a felony-

murder theory.

In Lowenfield v. Phelps, 484 U.S. 231, 244 (1998), the United States Supreme Court

declared that “[t]o pass constitutional muster, a capital sentencing scheme must genuinely

narrow the class of persons eligible for the death penalty and must reasonably justify the

imposition of a more severe sentence on the defendant compared to others found guilty of

murder.” (internal quotations omitted). But the Supreme Court also noted that this narrowing

function could be accomplished by jury findings in either the sentencing phase or the guilt phase.

Id. at 244–45.

This Court addressed this argument in State v. Wood, 132 Idaho 88, 102–03, 967 P.2d

702, 716–17 (1998) and concluded that “[t]he Idaho Legislature has narrowed the class of

murders that may be punished by death in I.C. §§ 18-4003 and 18-4004. The fact that the . . .

aggravator in I.C. § 19-2515 duplicates an element of first degree murder in I.C. § 18-4003 does

not violate any constitutional standard.” Essentially, this Court determined in Wood that the

“narrowing function” required by the U.S. Constitution was performed by the legislature in

limiting the class of murderers eligible for the death penalty in Idaho Code sections 18-4003 and

18-4004. Wood, 132 Idaho at 103, 967 P.2d at 717. Hall argues that Wood was wrongly decided.

He points to the United States Supreme Court’s characterization of Idaho law as broadly defining

the class of murderers eligible for capital punishment in Arave v. Creech, 507 U.S. 463, 475

(1993), and a Nevada Supreme Court case, McConnell v. State, 102 P.3d 606, 624 (Nev. 2004),

that held that a felony-murder aggravator could not be used to qualify a murderer for the death

sentence where the murderer had been convicted on a felony murder theory because it “fail[ed]

to genuinely narrow the death eligibility of felony murderers and reasonably justify imposing

death on all defendants to whom it applies.” This argument is unavailing.

The United States Supreme Court has proclaimed:

To render a defendant eligible for the death penalty in a homicide case . . . the

trier of fact must convict the defendant of murder and find one “aggravating

circumstance” (or its equivalent) at either the guilt or penalty phase. The

aggravating circumstance may be contained in the definition of the crime or in a

separate sentencing factor (or in both). . . . [T]he aggravating circumstance must

meet two requirements. First, the circumstance may not apply to every defendant

convicted of murder; it must apply only to a subclass of defendants convicted of

murder. Second, the aggravating circumstance may not be unconstitutionally

vague.

36

Tuilaepa v. California, 512 U.S. 967, 971–72 (1994) (internal citations omitted) (emphasis

added). Regardless of the United States Supreme Court’s observation that first-degree murder in

Idaho was broadly defined, the felony murder aggravating circumstance in section 19-2515(9)(g)

fulfills the test pronounced in Tuilaepa. Tuilaepa allows the aggravating circumstance to be

contained in the definition of the crime, or the aggravating circumstance (or both)—as it was in

this case for Hall. It also requires that the aggravating circumstance perform a narrowing

function, or in other words, apply only to a subclass of murderers. This is the prong Hall

contends is violated in Idaho by section 19-2515(9)(g). However, the felony murder aggravator

in section 19-2515(9)(g) does meet this requirement—it applies only to those murders which are

committed in the perpetration of “arson, rape, robbery, burglary, kidnapping or mayhem.” This

language may apply to many murders, but it certainly does not apply to every first-degree

murder—which is all the narrowing required by Tuilaepa. Hall may disagree with this Court’s

interpretation in Wood, but it was and is constitutional. We reaffirm our decision in Wood.

14. The grand jury’s consideration of aggravating circumstances did not violate Hall’s

constitutional rights.

The initial indictment charging Hall with the murder of Ms. Henneman did not contain

any aggravating circumstances. Later, when the same grand jury reconvened to hear evidence

connecting Hall to the murder of a woman in the foothills (Cheryl Hanlon), the State also asked

them to approve an Indictment Part II in this case, which included the four alleged aggravating

circumstances. After deliberating, the grand jury returned an indictment charging Hall with the

foothills murder and finding the presence of several aggravating circumstances in that murder.

They also approved the Indictment Part II in this case.

Hall argues that the grand jury’s consideration of the two cases concurrently, which

included very similar aggravating circumstances, violated his constitutional right to an

individualized determination of the presence of the aggravators in each case. To make this

argument, Hall conflates and entangles several constitutional rights. He argues that the notice

requirement in Article I, Section 8 of the Idaho Constitution, the notice and jury trial

requirements of the Sixth Amendment as interpreted in Ring v. Arizona, 536 U.S. 584, 609

(2002), and the Eighth Amendment prohibition of the infliction of cruel and unusual punishment

were all violated by the grand jury’s concurrent consideration of the aggravating circumstances

in this case and in the foothills murder case. He also argues that because the aggravating

37

circumstances must be heard by the jury, they are essentially elements of the crime and must be

proven beyond a reasonable doubt.

“The requirements of the Idaho and U.S. Constitutions are questions of law, over which

this Court has free review.” State v. Draper, 151 Idaho 576, 598, 261 P.3d 853, 875 (2011).

Article I, Section 8 of the Idaho Constitution provides, in pertinent part: “[n]o person shall be

held to answer for any felony or criminal offense of any grade, unless on presentment or

indictment of a grand jury or on information of the public prosecutor . . . .” The Sixth

Amendment to the United States Constitution provides, in part: “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State

wherein the crime shall be been committed . . . and to be informed of the nature and cause of the

accusation . . .”

In Ring, the United States Supreme Court determined that in capital cases, when the

finding of one aggravator has the potential to increase the penalty for the crimes, the Sixth

Amendment right to a jury trial dictates that the jury be involved in determining the aggravators

applicable to the defendant—and thus which sentence should be imposed. 536 U.S. at 609. The

Eighth Amendment prohibition against cruel and unusual punishment, made applicable to the

states through the Fourteenth Amendment, has been interpreted to require “particularized

consideration of relevant aspects of the character and record of each convicted defendant before

the imposition upon him of a sentence of death.” Woodson v. North Carolina, 428 U.S. 280, 303

(1976) (emphasis added).

Hall argues that some combination of these rights—or all of them in aggregate—were

violated by the grand jury’s concurrent consideration of the aggravating factors in each case

because the grand jury did not conduct an individualized determination of whether the

aggravating circumstances were established by the evidence presented in this case only.

With regard to whether Hall was given constitutionally adequate notice of the four

aggravators alleged in this case, Abdullah provides guidance. This Court determined in Abdullah

that statutory aggravators in capital cases do not need to be listed in the indictment, nor does the

state need to provide the defendant with the factual basis underlying the aggravators. Abdullah,

158 Idaho at 460–61, 348 P.3d at 75–76. Rather, the Court determined that Idaho Code section

18-4004A, which requires notification of intent to seek the death penalty within 60 days after

entry of a plea and a listing of the statutory aggravating circumstances relied upon in seeking the

38

death penalty, provided defendants with constitutionally adequate notice of the intent to seek the

death penalty and the aggravating circumstances alleged, under both the Idaho and United States

Constitutions. Id. Here, although the initial indictment did not contain the alleged aggravating

circumstances, the State’s notice of intent to seek the death penalty, filed just two weeks after

approval of the initial indictment, did enumerate the four aggravating circumstances upon which

the State would rely in seeking the death penalty. Under Abdullah, this was constitutionally

adequate notice of the aggravating circumstances in this case. Hall asks this Court to revisit and

overrule Abdullah on this point, but provides no reasoned basis for doing so. We reaffirm our

holding in Abdullah regarding the constitutionally-required notice of aggravating circumstances

in capital cases.

Hall correctly notes that the Eighth Amendment requires a particularized inquiry at

sentencing in capital cases. He points to Woodson for this proposition. In Woodson, the United

States Supreme Court declared:

A process that accords no significance to relevant facets of the character and

record of the individual offender or the circumstances of the particular offense

excludes from consideration in fixing the ultimate punishment of death the

possibility of compassionate or mitigating factors stemmed from the diverse

frailties of humankind. It treats all persons convicted of a designated offense not

as uniquely individual human beings, but as members of a faceless,

undifferentiated mass to be subjected to the blind infliction of the penalty of

death.

This Court has previously recognized that “(f)or the determination of

sentences, justice generally requires consideration of more than the particular acts

by which a crime was committed and that there be taken into account the

circumstances of the offense together with the character and propensities of the

offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S. Ct. 59, 61,

82 L.Ed. 43 (1937). Consideration of both the offender and the offense in order to

arrive at a just and appropriate sentence has been viewed as a progressive and

humanizing development. See Williams v. New York, 337 U.S., at 247-249, 69

S.Ct., at 1083-1084; Furman v. Georgia, 408 U.S., at 402-403, 92 S.Ct., at 2810-

2811 (Burger, C. J., dissenting). While the prevailing practice of individualizing

sentencing determinations generally reflects simply enlightened policy rather than

constitutional imperative, we believe that in capital cases the fundamental respect

for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S., at

100, 78 S.Ct., at 597 (plurality opinion), requires consideration of the character

and record of the individual offender and the circumstances of the particular

offense as a constitutionally indispensable part of the process of inflicting the

penalty of death.

39

Woodson, 428 U.S. at 303–04. The import of Woodson is that the character of the offender and

the circumstances of the offense be considered in imposing the death penalty. Woodson thus

refers to procedure and evidence in the sentencing phase, not to grand jury deliberations. For

after the indictment containing aggravating circumstances is returned by the grand jury—if the

defendant is convicted—the jury would hear evidence and determine the appropriate sentence.

Woodson primarily concerns these jury deliberations, not those of the grand jury prior to trial.

The grand jury does not decide whether the death penalty is imposed. It only decides whether the

evidence supports the aggravating circumstances alleged. Thus, it is immaterial—for Eighth

Amendment purposes—that the grand jury considered aggravating circumstances in the Hanlon

murder in the same session in which it considered aggravating circumstances in this case.

The Supreme Court’s interpretation of the Sixth Amendment’s jury-trial requirement in

Ring does not mandate a contrary result. Ring pertains to jury sentencing after conviction—it has

little application to grand jury deliberations. Additionally, Hall’s claim that statutory aggravators

alleged in the indictment must be proven beyond a reasonable doubt has been raised and resolved

in previous cases. Dunlap, 155 Idaho at 375, 313 P.3d at 31 (“Ring did not elevate those

statutory aggravating circumstances into elements of a crime . . . . Only our state legislature has

that authority, and it did not make aggravating circumstances elements of the crime.”) (quoting

Porter v. State, 140 Idaho 780, 784, 102 P.3d 1099, 1103 (2004)).

Thus, the grand jury deliberations and the Indictment Part II returned in this case did not

violate Hall’s notice or due process rights under the Idaho or United States Constitutions. Nor

were they violative of his Sixth, Eighth, or Fourteenth Amendment rights.

15. Admission of the photograph of Hall (Exhibit 149) was harmless error.

Hall argues that the district court erred in admitting a photograph of him in the sentencing

phase because the photo is prejudicial and looks like a mugshot. When the State moved to have

the photo admitted, Hall objected. Outside the presence of the jury, defense counsel discussed his

objection in detail:

DEFENSE COUNSEL: Judge, it portrays him in a jail outfit and it’s a demeaning

type of picture.

THE COURT: May I please see the – bailiff, can I see the photo?

DEFENSE COUNSEL: I don’t think there is any reason for it other than to show

him in that kind of pose and the witness has already identified him. I don’t see

what the purpose of this is.

THE COURT: There’s no – just to describe, this is a, what, 8 and a half by 11

color photo of the front of his face showing short hair and a goatee of sorts and a

40

– at least the beginnings of a mustache. And then it shows some orange collar, if

you will, of a shirt of some sort. It does not show any booking data underneath –

under – a template underneath his face or anything. Do you want to be heard

further, sir?

DEFENSE COUNSEL: Well, I mean your description makes it sound benign but

–

THE COURT: Well, you tell me what’s not benign about it? Well, I’m trying to

describe it for the record because I think it’s important for the ruling.

DEFENSE COUNSEL: The problem is he’s dressed in jail clothing. I don’t think

it takes a whole lot to put that together by jurors. And the whole purpose of it is to

show him in this demeaning position. It’s a mug shot.

Thereafter, there was discussion between counsel and the court. The prosecutor argued that the

photo was illustrative of the witness’ testimony and showed Hall as he looked when she knew

him. The defense argued that the witness had already identified Hall in the presence of the jury

and that identity was not an issue in the case so its admission would serve no purpose and would

introduce unfair prejudice against Hall. The court further described the photo for the record, and

observed that “there’s nothing in the Court’s observation of this picture that makes this

demeaning, or makes it appear like a mug shot.” The court also noted that Hall had already been

convicted of murder, so it was “not sure” what prejudice Hall would suffer if the jurors identified

the clothing in the picture as jail garb. Shortly thereafter, the Court overruled the objection and

allowed admission of the photo, which was identified as Exhibit 149.

On appeal, Hall argues the district court admitted the photo in error because it was

irrelevant, and even if relevant, its probative value was outweighed by the danger of unfair

prejudice. Hall bases his arguments on Idaho Rules of Evidence 401, 402, and 403. The State

argues that the Rules of Evidence do not apply to sentencing hearings, and that even if they did,

the photo was relevant and not unfairly prejudicial. If there was error, the State argues that it was

harmless. Hall argues that the Rules of Evidence should apply to sentencing hearings, and that

the error in admitting the photo was not harmless, because it was shown to the jury six times in

the State’s closing argument slideshow presentation.

“The question of whether evidence is relevant is reviewed de novo, while the decision to

admit relevant evidence is reviewed for an abuse of discretion.” State v. Sheldon, 145 Idaho 225,

228, 178 P.3d 28, 31 (2008). “This Court determines whether the district court abused its

discretion by examining: (1) whether the court correctly perceived the issue as one of discretion;

(2) whether the court acted within the outer boundaries of its discretion and consistently within

the applicable legal standards; and (3) whether the court reached its decision by an exercise of

41

reason.” State v. Parker, 157 Idaho 132, 138, 334 P.3d 806, 812 (2014) (internal quotations

omitted).

“The Idaho Rules of Evidence, except those relating to privileges, do not apply to

sentencing hearings.” State v. Jeppesen, 138 Idaho 71, 75, 57 P.3d 782, 786 (2002). “Instead, the

admission of evidence in capital sentencing proceedings is governed by Idaho Code § 19-

2515(6), which provides that ‘the state and the defendant shall be entitled to present all relevant

evidence in aggravation and mitigation.’” State v. Dunlap, 155 Idaho 345, 375, 313 P.3d 1, 31

(2013). “Evidence is relevant if it has any tendency to make the existence of any fact that is of

consequence to the determination of the action more or less probable that it would be without the

evidence.” Sheldon, 145 Idaho at 228, 178 P.3d at 31 (internal quotations omitted).

Here, except for defense counsel’s objection questioning the purpose of the photograph,

the discussion relating to the admission of the photograph primarily focused on its potential

prejudicial effect rather than its relevance. Because the Rules of Evidence do not apply to

sentencing hearings, which are governed by Idaho Code section 19-2515(6), only the relevance

analysis has any place here. Defense counsel was right to question the admission of the

photograph. The State argued that the photo showed Hall when the witness knew him (which

was different than he looked at the time of her testimony) and that the photo was illustrative of

her testimony. But, as defense counsel correctly noted, identity was not an issue in the case and

the witness identified Hall for the court prior to the State moving for the admission of the

photograph. The photo thus did not make any fact issue more or less probable by its admission,

and as such, it was not relevant to the sentencing determination. Because the court’s analysis

focused on the potential prejudice of the photo, and did not adequately address defense counsel’s

relevance objection—which is the key inquiry under section 19-2515(6)—it abused its

discretion. Admission of the photograph was error. The question then becomes whether the error

was harmless.

“To hold error harmless, the Court must declare their belief, beyond a reasonable doubt,

that there was no reasonable possibility that [the] evidence complained of contributed to the

conviction [or the sentence of death].” State v. Payne, 146 Idaho 548, 574, 199 P.3d 123, 149

(2008) (internal quotations omitted).

Because Hall had been convicted of first-degree murder, the jury was empowered to

determine whether he would receive life in prison or the death sentence. I.C. §§ 19-2515, 18-

42

4004. The question is thus whether the admission of the unflattering picture contributed to the

jury’s decision to sentence Hall to death. Hall correctly notes that the picture was presented to

the jury six times in the State’s closing argument at the end of the sentencing hearing. However,

even in light of its repetitive presentation to the jury, it is unlikely that one photo, depicting

Hall’s blank face, his neck, and the tops of his shoulders contributed to his being sentenced to

death. The trial and the sentencing hearing contained evidence of the many gruesome details of

this case, including: the sweater tied tightly around Ms. Henneman’s neck, the pathologist’s

determination that she died by strangulation, the presence of semen in her vaginal cavity, Hall’s

history of drug use and violence against women, and his DNA connection to the semen found in

Ms. Henneman’s body. These details, in concert with many others, were most likely the facts

that pushed the jury to impose the death sentence, not the admission of one unflattering

photograph. For these reasons, we hold that the court’s admission of the photograph was error,

but it was harmless error.

16. Hall’s Sixth Amendment right to effective, conflict-free counsel was not violated.

At the sentencing hearing, the State sought to call April Sebastian as a witness. Prior to

her being called as a witness, Hall’s counsel indicated that he also represented Ms. Sebastian and

that there was a potential conflict. When asked specifically about the nature of the conflict,

defense counsel responded, “I mean I know things about [Ms. Sebastian].” A discussion ensued

in which it was noted that defense co-counsel had also represented Ms. Sebastian (so he could

not question her without similar conflict) and that delay in questioning the witness could damage

her participation in a rider program. When the court was seeking a solution to this problem

defense counsel said, “I don’t want to delay this. No, I’m just going to go ahead and question her

myself and if I’m creating ethical problems for myself then I’m creating them. But I’m just

telling you for the record that she’s my current client.” The State then indicated the facts it

wished to elicit from Ms. Sebastian and indicated its opinion that very little would need to be

elicited on cross-examination, so defense counsel could likely proceed. The court then said, “I’m

willing to consider all options. I know you want to go ahead, [defense counsel], you said that.

But – there’s always the appearance of a potential conflict. But in terms of an actual conflict I

really don’t know if there is one unless you tell me there is one.” After more discussion, the court

said, “I will do this any way you want, [defense counsel].” After a little more discussion, defense

43

counsel said, “Let’s just do it.” Shortly thereafter, the jury was brought back in, Ms. Sebastian

was called as a witness, and defense counsel cross-examined her.

Hall argues that his counsel’s performance was affected by the perceived conflict in that

his counsel was not as vigorous or thorough in cross-examination as he would have otherwise

been. Hall also argues that the court erred by failing to inquire further into the nature of defense

counsel’s conflict.

The Sixth Amendment to the United States Constitution provides that each defendant is

entitled to the assistance of counsel for his defense. U.S. Const. amend. VI. This right is violated

when defendant’s counsel is ineffective. Mickens v. Taylor, 535 U.S. 162, 166 (2002). Generally,

to successfully allege ineffective assistance of counsel, a defendant must demonstrate “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Only in very

limited circumstances is it appropriate to “forgo individual inquiry into whether counsel’s

inadequate performance undermined the reliability of the verdict.” Mickens, 535 U.S. at 166.

These limited circumstances include when “counsel is denied entirely or during a critical stage of

the proceeding” or “may also arise when the defendant’s attorney actively represent[s]

conflicting interests.” Id. Thus, when a conflict of interest situation arises, “[i]n order to establish

a violation of the Sixth Amendment, a defendant who raised no objection at trial must

demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.”

Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). “[I]n determining whether a conflict exists, trial

courts are entitled to rely on the representations made by counsel.” State v. Severson, 147 Idaho

694, 704, 215 P.3d 414, 424 (2009).

“[A] trial court has an affirmative duty to inquire into a potential conflict whenever it

knows or reasonably should know that a particular conflict may exist,” Id. at 703, 215 P.3d at

423 (internal quotations omitted). “[A] trial court’s examination of the potential conflict must be

thorough and searching and should be conducted on the record.” Id. at 704, 215 P.3d at 424.

“The adequacy of the trial court’s inquiry is a constitutional issue over which we exercise free

review.” Id.

Here, the first question is whether there was an actual conflict of interest in defense

counsel’s concurrent representation of Hall and Ms. Sebastian. That determination rests in large

part on analysis that only defense counsel can conduct. See Cuyler, 446 U.S. at 346 (“[T]rial

44

courts necessarily rely in large measure upon the good faith and good judgment of defense

counsel” in determining the presence of a conflict.). Indeed, at one point in the colloquy, the

district court noted, “there’s always the appearance of a potential conflict. But in terms of an

actual conflict I really don’t know if there is one unless you tell me there is one.” Although this

Court has noted that “Idaho Courts look to the standards set forth in the Idaho Rules of

Professional Conduct” to determine whether an actual conflict of interest exists, many of the

analyses appropriate under the rules require specific and complete information about the nature

and depth of each client’s representation by counsel, which is information only counsel would

have. Here, when asked directly if there was an actual conflict in his representation of Hall and

Ms. Sebastian, defense counsel answered, “No. I think it’s more the nature of – I mean I’m very

familiar with [Ms. Sebastian’s] background.” Soon thereafter, defense counsel indicated to the

court—twice—that it wished to move forward with questioning and cross-examination of Ms.

Sebastian. Defense counsel—the party in the best position to make the call—did not view the

concurrent representation as an actual conflict of interest. Based on these representations by

defense counsel, the district court decided to move forward with questioning Ms. Sebastian. The

district court’s reliance on defense counsel’s assessment of the presence of actual conflict was

not error, nor was its connected decision to proceed with the examination of Ms. Sebastian.

Severson, 147 Idaho at 705, 215 P.2d at 425.

Further, if an actual conflict did exist, there is little evidence that defense counsel’s

performance was adversely affected by the conflict. Hall argues that defense counsel treated Ms.

Sebastian kindly which boosted her credibility and failed to elicit an unfavorable Department of

Corrections disciplinary report (Ms. Sebastian was in custody) or refer to the possibility that Ms.

Sebastian may receive a benefit from the State in exchange for her testimony. It is true that

defense counsel was polite and deferential to Ms. Sebastian, but this was defense counsel’s style

generally. The State presented three other witnesses that testified about their interactions with

Hall and his behavior toward women in the years preceding Ms. Henneman’s death. Defense

counsel’s cross-examination of these witnesses was not especially vigorous or unkind. Rather, it

was patient and polite, but did not fail to elicit facts unfavorable to the witness or her story. The

same is true of his examination of Ms. Sebastian. Counsel was deferential, but drew out

unfavorable facts—such as her history of theft and conviction for forgery. He did not raise the

disciplinary report, but there is no evidence he had knowledge of that report. He did not discuss a

45

potential deal between the State and Ms. Sebastian, but Ms. Sebastian appeared in her orange jail

jumpsuit and discussed in direct examination the reason she was incarcerated. She also discussed

the circumstances of her case with defense counsel on cross-examination—including that she

was serving on a rider and wanted to change her life. This is testimony from which the jury could

infer the potential for bias. Thus, there was no actual conflict nor was defense counsel’s

performance adversely affected by the presence of conflict; Hall’s Sixth Amendment right to

effective assistance of counsel was not violated.

Hall also argues that the court’s inquiry into the nature of the conflict was insufficient

under the Sixth Amendment. Specifically, he argues that the court should have asked defense

counsel whether the things he “knew” about Ms. Sebastian were admissible facts that could

undermine her credibility. This argument is unavailing. As indicated above, the Sixth

Amendment requires the court’s inquiry to be “thorough and searching,” so the question is

whether the court’s inquiry met that bar. When the court was notified of the potential for conflict,

it inquired at length into the nature of defense counsel’s relationship with Ms. Sebastian. Then it

asked defense counsel point blank about whether there was an actual conflict in defense

counsel’s representation of both Hall and Ms. Sebastian, to which defense counsel answered, “I

mean I know things about [Ms. Sebastian].” The court then explored other options, including

defense co-counsel questioning the witness (he also had a conflict), asking another member of

the public defender’s office to come and cross-examine her or delaying the witness. During this

exchange, the court asked defense counsel repeatedly what he would have the court do. After

some hesitation, defense counsel indicated that he wished to proceed and cross-examine Ms.

Sebastian himself, regardless of whether he was creating “ethical problems for [him]self.” The

court then asked defense counsel again whether there was an actual conflict and provided several

alternative methods of questioning the witness. But defense counsel persisted, denying the

presence of an actual conflict and telling the court, “Let’s just do it.” Thereafter, the jury was

brought back in, Ms. Sebastian took the stand and defense counsel cross-examined her. This

entire exchange was conducted on the record. Although the court did not press defense counsel

for details about the nature of information he knew about Ms. Sebastian, it did inquire—

repeatedly—about whether there was an actual conflict in defense counsel’s concurrent

representation and repeatedly offered various options for handling the conflict, if it did exist.

This inquiry was constitutionally sufficient. It was thorough and searching and designed to “ease

46

[a] defendant’s dissatisfaction, distrust, or concern” as our precedents require. Severson, 147

Idaho at 704, 215 P.3d at 424 (internal quotations omitted). For the foregoing reasons, we hold

that Hall’s Sixth Amendment right to conflict-free counsel was not abrogated.

17. The court did not err in admitting evidence of Hall’s prior convictions or in

admitting post-crime character evidence.

At sentencing, the State presented the testimony of N.O., the statutory rape victim; the

detective assigned to the statutory rape case; and the attorney who prosecuted the statutory rape

case. The State also presented testimony from witnesses who interacted with Hall after the

commission of Ms. Henneman’s murder, including two of Hall’s former girlfriends (Ms. Deen

and Ms. Dunaway) whom he dated in 2001 and 2002, Hall’s former neighbor (Ms. McCusker)

who lived next to him in 2002, Hall’s acquaintance (Ms. Sebastian) whom he knew in 2001 and

2002 who had mutual friends, and a department of corrections employee who provided summary

evidence of Hall’s charges and how “points” are determined in the correctional system.

Hall contends that much of the pre-crime evidence offered in the sentencing hearing was

not relevant to the propensity aggravator and was admitted in violation of his constitutional

rights. He also argues that testimony from the post-crime witnesses was irrelevant to the

propensity aggravator and any “non-statutory” aggravators, inadmissible under Idaho Rules of

Evidence 403 and 404, and admitted in violation of Hall’s Eighth and Fourteenth Amendments

rights. He further argues the testimony of the rape victim violated his Sixth and Fourteenth

Amendment rights. Each contention will be addressed in turn.

a. Relevancy of pre-crime evidence.

First, Hall contends that the pre-crime evidence offered by the state was not relevant to

the “propensity to commit murder” required by the propensity aggravator in Idaho Code section

19-2515(9)(h). He contends that his prior convictions for grand theft, escape, and statutory rape

are not relevant to proving that he had the propensity to murder because they do not show a

proclivity to kill or a tendency toward violence. We disagree.

The Idaho Rules of Evidence are not applicable in sentencing; instead, Idaho Code

section 19-2515(6)’s relevance standard governs. State v. Dunlap, 155 Idaho 345, 375, 313 P.3d

1, 31 (2012); I.C. § 19-2515(6) (2004) (“At the special sentencing proceeding, the state and the

defendant shall be entitled to present all relevant evidence in aggravation and mitigation.”

(emphasis added)). This Court reviews relevancy determinations de novo. State v. Sheldon, 145

Idaho 225, 228, 178 P.3d 28, 31 (2008). The “propensity aggravator” as contained in Idaho Code

47

19-2515 in 2000 (the year of the crime) and in 2004 (the year of the trial) read: “The defendant,

by prior conduct or conduct in the commission of the murder at hand, has exhibited a propensity

to commit murder which will probably constitute a continuing threat to society.” I.C. 19-

2515(h)(8) (2000); I.C. 19-2515(9)(h) (2004).

Hall’s prior convictions evinced an escalation in criminal behavior, that when combined

with the egregious circumstances of the statutory rape of N.O. provide a sufficient basis for

concluding that Hall had a propensity to commit murder that would “probably constitute a

continuing threat to society.” I.C. § 1902515(9)(h) (2003). Hall was first convicted of grand theft

in 1991 for possession of stolen property. In 1992, he was convicted of the statutory rape of N.O.

Many of the circumstances of that rape were strikingly similar to the evidence in this case. N.O.

testified that after only knowing Hall for a few hours, he removed her from a chair by her neck,

choked her into unconsciousness, tore her clothes off, tied her up with them, raped her both

orally and anally, and threatened to kill her by beating her with a hammer. She only escaped by

running away from him at an opportune time. Hall was initially charged with the forcible rape of

N.O. The charges were only reduced to statutory rape because N.O. was too fragile and

vulnerable to testify. In 1995, while serving his sentence for rape, Hall was convicted of escape.

Thereafter, his sentence for rape was increased. He was released in December of 1999, only

about 10 months before Ms. Henneman’s death.

In State v. Porter, 130 Idaho 772, 790, 948 P.2d 127, 145 (1997), this Court recognized

that “physically abusive tendencies” may be the basis for finding the presence of the propensity

aggravator. In Porter, the defendant was charged with brutally beating and murdering his

girlfriend. Id. at 780, 948 P.2d at 135. Because he had not previously attempted to murder

someone or been charged with or committed murder, the defendant argued that there was not

sufficient evidence to support the propensity aggravator. Id. at 790, 948 P.2d at 145. The Court

however, determined that evidence that he had severely beaten several former girlfriends

demonstrated that “he was not able to control his actions and may have beaten to death any one

of [the former girlfriends]” and supported the finding of the propensity aggravator. Id.

Here, the violence exhibited by Hall in the perpetration of the rape of N.O. and its

striking similarity to the evidence surrounding Ms. Henneman’s death, taken together with the

escalation in general lawlessness of his prior convictions—particularly that of escape—was

sufficient for the jury to determine that Hall “had the propensity to commit murder that would

48

probably constitute a continuing threat to society.” I.C. § 19-2515(9)(h). Hall’s prior convictions

were relevant to determination of the propensity aggravator because they provided a complete

picture of his tendencies and the pattern that emerged over time. As such, the district court did

not err in admitting Hall’s prior convictions.

b. Admissibility of post-crime evidence.

Next, Hall contends that because the testimony from his former girlfriends, neighbor, and

acquaintance presented at sentencing concerned events occurring after commission of the crime,

their testimony was irrelevant to the propensity aggravator and admitted in error. He also argues

that admission of this evidence renders his death sentence unconstitutional on the basis of Brown

v. Sanders, 546 U.S. 212, 220–21 (2006).

As indicated above, the propensity aggravator in effect at the time of Hall’s trial

considered only “prior conduct or conduct in the commission of the crime at hand” in

determining whether a capital defendant exhibited the requisite propensity. I.C. § 19-2515(9)(h)

(2003). This Court exercises “free review over statutory interpretation because it is a question of

law.” State v. Owens, 158 Idaho 1, 3, 343 P.3d 30, 32 (2015). Constitutional issues are also

freely reviewed. State v. Abdullah, 158 Idaho 386, 417, 348 P.3d 1, 32 (2015).

Here, the district court excluded evidence of the Hanlon murder from sentencing because

it was not “prior conduct or conduct in the commission of the murder at hand” and was thus

irrelevant to prove the propensity aggravator. But it allowed the testimony of two of Hall’s

former girlfriends, his former neighbor and his acquaintance, which concerned events and

interactions the witnesses had with Hall in 2001 and 2002—one or two years after the

commission of the crime at issue. The plain language of section 19-2515 as it was then written

provided only for evidence of conduct prior to or concurrent with the crime. I.C. § 19-2515(9)(h)

(2004). Thus, any evidence of conduct occurring after the crime at issue was not probative of

propensity and was irrelevant and inadmissible for that purpose. However, admission of the post-

crime evidence was not constitutional error.

The Supreme Court of the United States made it clear in Zant v. Stephens, 462 U.S. 862,

878 (1983) that it is not unconstitutional for a jury to consider non-statutory aggravating

circumstances when deciding whether to impose the death penalty. The Zant Court explained

that the Constitution does not require the jury to ignore aggravating evidence that will help them

49

make an individualized determination of whether the death penalty is appropriate based on the

character of the defendant:

Our cases indicate, then, that statutory aggravating circumstances play a

constitutionally necessary function at the stage of legislative definition: they

circumscribe the class of persons eligible for the death penalty. But the

Constitution does not require the jury to ignore other possible aggravating factors

in the process of selecting, from among that class, those defendants who will

actually be sentenced to death. What is important at the selection stage is an

individualized determination on the basis of the character of the individual and the

circumstances of the crime.

Zant, 462 U.S. 878-79 (emphasis in original) (citations omitted). The Supreme Court has

explained that the fundamental respect for humanity underlying the Eighth Amendment requires

consideration of the defendant’s character when deciding whether to inflict the death penalty:

A process that accords no significance to relevant facets of the character and

record of the individual offender or the circumstances of the particular offense

excludes from consideration in fixing the ultimate punishment of death the

possibility of compassionate or mitigating factors stemmed from the diverse

frailties of humankind. It treats all persons convicted of a designated offense not

as uniquely individual human beings, but as members of a faceless,

undifferentiated mass to be subjected to the blind infliction of the penalty of

death.

This Court has previously recognized that “(f)or the determination of

sentences, justice generally requires consideration of more than the particular acts

by which a crime was committed and that there be taken into account the

circumstances of the offense together with the character and propensities of the

offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S. Ct. 59, 61,

82 L.Ed. 43 (1937). Consideration of both the offender and the offense in order to

arrive at a just and appropriate sentence has been viewed as a progressive and

humanizing development. See Williams v. New York, 337 U.S., at 247-249, 69

S.Ct., at 1083-1084; Furman v. Georgia, 408 U.S., at 402-403, 92 S.Ct., at 2810-

2811 (Burger, C. J., dissenting). While the prevailing practice of individualizing

sentencing determinations generally reflects simply enlightened policy rather than

constitutional imperative, we believe that in capital cases the fundamental respect

for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S., at

100, 78 S.Ct., at 597 (plurality opinion), requires consideration of the character

and record of the individual offender and the circumstances of the particular

offense as a constitutionally indispensable part of the process of inflicting the

penalty of death.

Woodson, 428 U.S. at 303–04.Woodson v. North Carolina, 428 U.S. 280, 303 (1976).

The more difficult argument to unpack is whether Idaho’s death penalty statute allowed

the jury to consider non-statutory aggravating evidence. We hold that it does.

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Beginning in State v. Creech, 105 Idaho 362, 369–70, 670 P.2d 463, 470–71 (1983), this

Court recognized the admissibility of non-statutory aggravating circumstances in death penalty

cases. We held:

The court is not limited as to the circumstances it may find in aggravation

to those listed [as statutory aggravators]. Thus, that section of the court’s findings

denominated “5. Facts and Arguments Found in Aggravation,” although including

circumstances not statutorily listed and not expressly found beyond a reasonable

doubt, is not error. I.C. § 19-2515(a) permits the court, upon the suggestion of

either party that there are circumstances which might properly be considered in

aggravation or mitigation, to hear those circumstances. That language strongly

suggests that a judge should hear all relevant evidence which either party desires

to set forth. Such an interpretation is not contradicted by I.C. § 19-2515(f), which

merely lists the statutory aggravating circumstances, at least one of which must

exist beyond a reasonable doubt if the ultimate sanction of death is to be imposed.

Creech, 105 Idaho at 369, 670 P.2d at 470.

Justice Horton correctly points out in his dissent that Idaho’s death penalty statute has

been amended since Creech and that the language identified in Idaho Code section 19-2515(a) no

longer exists. Section 19-2515(a) at the time Creech was decided stated:

After a plea or verdict of guilt, where a discretion is conferred upon the

court as to the extent of the punishment, the court, upon the oral or written

suggestion of either party that there are circumstances which may be properly

taken into view either in aggravation or mitigation of the punishment, may, in its

discretion, hear the same summarily, at a specified time, and upon such notice to

the adverse party as it may direct.

I.C. § 19-2515(a) (1977) (emphasis added). While this particular provision no longer exists, the

language emphasized is still part of Idaho’s death penalty statute. At the time Hall was

sentenced, Idaho Code section 19-2515(2) mandated that a special sentencing proceeding be held

“for the purpose of hearing all relevant evidence and arguments of counsel in aggravation and

mitigation of the offense”:

If a person is adjudicated guilty of murder in the first degree, whether by

acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court

sitting without a jury, and a notice of intent to seek the death penalty was filed

and served as provided in section 18-4004A, Idaho Code, a special sentencing

proceeding shall be held promptly for the purpose of hearing all relevant

evidence and arguments of counsel in aggravation and mitigation of the offense.

Information concerning the victim and the impact that the death of the victim has

had on the victim’s family is relevant and admissible. Such information shall be

designed to demonstrate the victim’s uniqueness as an individual human being

and the resultant loss to the community by the victim’s death. Characterizations

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and opinions about the crime, the defendant and the appropriate sentence shall not

be permitted as part of any victim impact information. The special sentencing

proceeding shall be conducted before a jury unless a jury is waived by the

defendant with the consent of the prosecuting attorney.

I.C. § 19-2515(5)(a) (2004) (emphasis added). Subsection (6) provided that the state and the

defendant shall be entitled to present all relevant evidence in aggravation and mitigation:

At the special proceeding, the state and the defendant shall be entitled to present

all relevant evidence in aggravation and mitigation. Disclosure of evidence to be

relied on in the sentencing proceeding shall be made in accordance with Idaho

criminal rule 16. Evidence admitted at trial shall be considered and need not be

repeated at the sentencing hearing.

I.C. § 19-2515(6) (2004) (emphasis added). The issue to be decided here is whether “relevant

evidence in aggravation” is limited to the aggravating factors identified in section 19-2515(8).

The plain language of the statute does not limit the aggravation evidence that could be

presented to the jury to the statutory aggravators identified in section 19-2515(9). Idaho’s death

penalty statute repeatedly refers to the aggravating circumstances which must be found to impose

the death penalty as “statutory” aggravators. See I.C. §§ 19-2515(3)(b), (4), (7)(a), (7)(b), (7)(c),

(8)(a), (8)(b), (9) (2003); see also I.C. §§ 19-2515(c), (f), (h) (2000). The use of the term

“statutory” is significant because it implicitly recognizes that there are other, non-statutory

considerations that the Legislature understands must be considered when determining an

individualized sentence. See, e.g., I.C. §§ 19-2515(3)(b), (4), (7)(a), (7)(b), (7)(c), (8)(a), (8)(b),

(9) (2003); see also I.C. §§ 19-2515(c), (f), (h) (2000). To put it plainly, if it wanted to restrict

the evidence presented to that which is relevant only to the statutory aggravators, the Legislature

could have said something like “all relevant evidence in support of the statutory aggravators and

mitigation,” but it did not. In fact, there are other provisions in the death penalty statute which

make it clear that the Legislature intended the special sentencing proceeding to be the forum

where the jury could consider a wide array of information about the defendant and the crime to

determine whether the imposition of the death penalty would be just in each particular case. For

example, in section 19-2515(5)(a), immediately following the sentence which states that the

purpose of the special sentencing proceedings is to hear “all relevant evidence in aggravation and

mitigation of the offense,” the statute provides that victim impact statements are relevant and

admissible:

52

If a person is adjudicated guilty of murder in the first degree, whether by

acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court

sitting without a jury, and a notice of intent to seek the death penalty was filed

and served as provided in section 18-4004A, Idaho Code, a special sentencing

proceeding shall be held promptly for the purpose of hearing all relevant

evidence and arguments of counsel in aggravation and mitigation of the offense.

Information concerning the victim and the impact that the death of the victim has

had on the victim’s family is relevant and admissible.

I.C. § 19-2515(5)(a) (emphasis added). There is also a provision which provides that the

evidence presented during the guilt phase of the trial shall be considered by the jury and does not

need to be repeated during the sentencing proceeding. See I.C. § 19-2515(6).

Hall also argues that the post-crime character evidence offered by the State at sentencing

was unfairly prejudicial in violation of Idaho Rules of Evidence 403 and 404. This argument

based on Ring was raised in Dunlap, to which the Court responded:

This argument is not persuasive. . . . “Ring did not elevate those

statutory aggravating circumstances into elements of a crime, nor

did it create a new crime. . . . Ring merely held that a state cannot

impose the death penalty unless its sentencing procedures have the

jury, not the judge, determine the existence of a statutory

aggravator.”

Dunlap, 155 Idaho at 375, 313 P.3d at 31 (quoting Porter v. State, 140 Idaho 780, 784, 102 P.3d

1099, 1103 (2004)). Hall has not raised new issues of fact, nor has he made any new legal

arguments. Unsupported claims are not sufficient to overcome controlling precedent. State v.

Delling, 152 Idaho 122, 131, 267 P.3d 709, 719 (2011) (“Having previously decided this

question, and being presented with no new basis upon which to consider the issue, we are guided

by the principle of stare decisis to adhere to the law as expressed in our earlier opinions.”). The

State’s sentencing evidence was not subject to the rules of evidence; thus, it could not have been

excluded on the basis of reference to the rules. There was no error on this basis.

Hall also argues that the State’s character evidence violated his Eighth and Fourteenth

Amendment rights because it deviated from a capital sentencing scheme meant to narrow the

class of defendants eligible for the death penalty. This argument has no merit. As indicated in

section 13, this Court determined in Wood that the constitutionally required narrowing function

is provided in the definition of first-degree murder in Idaho, not necessarily in capital sentencing

procedures. State v. Wood, 132 Idaho 88, 103, 967 P.2d 702, 717 (1996). Thus, evidentiary

issues in sentencing do not interfere with this narrowing function.

53

c. Testimony of the statutory rape victim.

Finally, Hall argues that admission of testimony relating to the statutory rape case

violated his due process rights to a fair trial under the Sixth and Fourteenth Amendments. For

various reasons, including the passage of time, misplaced evidence, unavailable witnesses, and

inadequate discovery, Hall alleges he was denied a full and fair opportunity to defend against this

testimony. However, no constitutional violation occurred. Hall received timely discovery relating

to N.O.’s testimony and had the opportunity to interview N.O. prior to her testimony. Defense

counsel acknowledged receipt of discovery prior to the hearing and did not complain about

discovery timeliness at the hearing. Neither party had access to the presentence report in the N.O.

case, as both erroneously believed it had been destroyed. Further, defense counsel indicated that

he had an opportunity to speak with N.O. prior to her testimony, that “she was too distraught to

talk to” but that he was prepared to cross-examine her. The Sixth Amendment does not require

that receipt of discovery and the opportunity to interview unfavorable witnesses occur under the

best possible circumstances. Rather, it requires that defendants receive a fair trial. In re

Murchison, 349 U.S. 133, 136 (1955) (“A fair trial in a fair tribunal is a basic requirement of due

process.”). “The right of an accused in a criminal trial is, in essence, the right to a fair

opportunity to defend against the State’s accusations.” Chambers v. Mississippi, 410 U.S. 284,

294 (1973). The State presented N.O.’s testimony at sentencing to provide evidence of the

propensity aggravator—as the brutal manner in which N.O. was raped contained facts strikingly

similar to the facts of this case and could be used to show a pattern or build-up of depraved

behavior leading to Ms. Henneman’s murder. Hall had already been convicted of the statutory

rape of N.O.—Hall’s guilt on that charge was not at issue here. The issue is whether Hall had a

fair opportunity to defend against the State’s allegation that the facts of the N.O. rape provided a

basis from which the propensity aggravator could be found. He did. As indicated above, he

received the appropriate discovery, he had the opportunity to speak with N.O. prior to her

testimony and he indicated at the sentencing that he was ready to proceed with the examination

of N.O. Hall’s right to a fair trial was not abrogated on this basis.

18. The court did not err by warning Hall that presenting evidence or argument on

future dangerousness would open the door to the Hanlon murder evidence.

Hall argues that the court erred in ruling that any discussion by defense counsel in

opening, closing, or with witnesses of Hall’s future dangerousness, even when incarcerated,

54

would open the door to admission of the Hanlon murder evidence. Hall contends that this ruling

impermissibly limited his ability to present mitigation evidence and argument.

As indicated above, evidentiary determinations in capital sentencing are governed by

Idaho Code section 19-2515(6), which allows the admission of “all relevant evidence in

aggravation and mitigation.” Relevant evidence is “[e]vidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” State v. Pepcorn, 152 Idaho 678, 688, 273

P.3d 1271, 1281 (2012). Relevancy determinations are reviewed by this Court de novo. State v.

Shutz, 143 Idaho 200, 202, 141 P.3d 1069, 1071 (2006).

Throughout the trial and the sentencing phase, the district court diligently excluded all

evidence relating to the subsequent murder of Cheryl Hanlon. Consistent with this stance, the

court also repeatedly warned defense counsel that any reference to Hall’s dangerousness or

future risk to the public would open the door to admission of the Hanlon evidence. When called

upon, the court also specified that its ruling included references to Hall’s dangerousness while

incarcerated. The court thus determined that the Hanlon murder evidence was not relevant, but

would become relevant if the defense made Hall’s dangerousness an issue. This ruling was not

erroneous. The Hanlon murder evidence, if admitted, would have been devastatingly prejudicial

to Hall and would have significantly interfered with his ability to receive a fair trial. But it was

very applicable to determining what kind of future risk he posed to the general public. In short, if

any evidence or argument was presented on the issue of Hall’s dangerousness, the Hanlon

murder evidence would be relevant and admissible. The district court was correct in its ruling

and appropriately cautious in its repeated warnings to defense counsel. The fact that Hall had to

choose between opening the door to very prejudicial evidence and presenting certain kinds of

mitigating evidence does not create error. See McGautha v. California, 402 U.S. 183, 213 (1971)

(“The criminal process, like the rest of the legal system, is replete with situations requiring the

making of difficult judgments as to which course to follow. Although a defendant may have a

right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution

does not by that token always forbid requiring him to choose.”) (internal quotations and citations

omitted), overruled on other grounds sub nom. Crampton v. Ohio, 408 U.S. 941 (1972); see also

Bonin v. Calderon, 59 F.3d 815, 840 (9th Cir. 1995) (determining that requiring a defendant to

choose between testifying in mitigation or staying silent when his testimony could be used in

55

subsequent cases did not violate his Fifth or Eighth Amendment rights). We affirm the ruling of

the district court.

19. The court did not err in admitting Detective Hess’ testimony.

Hall asserts that the court erred in allowing the admission of hearsay evidence in the

examination of Detective Hess, the detective who investigated the statutory rape case, at the

sentencing hearing. He conten

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