State v. Maestas

Chief Justice DURRANT,

opinion of the Court:

INTRODUCTION

{1 Floyd Eugene Maestas was charged with aggravated murder, a violation of see *905 tion 76-5-202 of the Utah Code, and aggravated burglary, a violation of section 76-6-208 of the Utah Code. 1 After being tried and convicted on both charges, he was sentenced to death. On appeal, he raises numerous arguments concerning his convictions, the imposition of the death penalty, and Utah's death penalty scheme. We reject each of Mr. Maestas's arguments and affirm his convictions and sentence.

BACKGROUND

T2 Because Mr. Maestas's numerous claims encompass various aspects of his convictions and sentence, we provide a broad overview of the facts and procedural history of this case and include additional facts as we address each issue in the analysis section. As an initial matter, we note that jurors in capital cases consider guilt and sentencing in separate proceedings. Accordingly, the facts and procedural history of this case are set forth in different sections: (I) the crime and investigation, (I1) the guilt phase of the trial, and (III) the penalty phase of the trial.

I. CRIME AND INVESTIGATION

T3 On appeal, we construe "the record facts in a light most favorable to the jury's verdict." 2

A. The Burglaries

{4 On September 28, 2004, Mr. Maestas met William Irish and Rodney Renzo. While traveling together in Mr. Maestas's car, the three men agreed to rob a house. Mr. Maes-tas identified seventy-two-year-old Donna Bott's home as the one they would rob and entered the home, followed by Mr. Irish and Mr. Renzo. Upon entering, Mr. Maestas went into a back room, and Mr. Irish saw him on top of a woman who was struggling on a bed. Mr. Irish saw the woman's legs move and heard that her sereams were muffled by a pillow covering her face. At that point, Mr. Irish heard Mr. Maestas threaten to stab the woman if she did not tell him where he could find some money. Later, Mr. Renzo saw Mr. Maestas punching and stomping on the woman "over and over" while she was on the floor. Mr. Renzo stated that, after Mr. Maestas stopped punching and stomping on the woman, she did not appear to be moving. At that point, the men decided to leave Ms. Bott's home.

T 5 After leaving Ms. Bott's home, the men drove to the home of eighty-seven-year-old Virginia Chamberlain. Mr. Irish remained outside while Mr. Maestas and Mr. Renzo entered the home. Upon entering, Mr. Maestas pulled Ms. Chamberlain's shirt over her head, scratching her arm and causing it to bleed. He then hit her and asked her for her purse. At that point, Ms. Chamberlain pushed her medical alert button and the two men left her home.

T 6 Sometime after the men left Ms. Chamberlain's home, Mr. Maestas's car ran out of gas on a freeway on-ramp. The men abandoned the car, and Mr. Irish and Mr. Renzo left Mr. Maestas. A police officer later found Mr. Maestas's abandoned car on the freeway and discovered Ms. Chamberlain's wallet inside.

B. The Investigation

17 Approximately three days after the robberies, a neighbor became concerned about Ms. Bott and called the police. The officer responding to the call found Ms. Bott's body on the floor next to her bed. She was naked from the waist down. Another detective found a ripped pair of women's underwear on the bed and collected usable fingerprints from Ms. Bott's home.

[8 The medical examiner, Dr. Todd Grey, performed an autopsy on Ms. Bott and found internal and external injuries on her body and face. Specifically, Dr. Grey discovered numerous and extensive bruises and abrasions on Ms. Bott's body, including her chest area, shoulders, abdomen, face, knees, and hips. He also found a laceration through Ms. *906 Bott's lower lip; a one-inch wide, three-inch deep stab wound on her face; and bruises consistent with strangulation. Regarding her internal injuries, Dr. Grey discovered severe tearing around Ms. Bott's heart and a tear in her aorta. Based on the nature and extent of her injuries, Dr. Grey concluded that Ms. Bott's death was a homicide. He then collected DNA from under Ms. Bott's fingernails-"fingernail serapings"-to test for possible DNA.

T9 As part of the investigation, police officers interviewed Mr. Maestas twice. Both times, he asserted that no one else ever drove his car and that he was driving it the night it was abandoned. When a homicide detective noticed cuts and serapes on Mr. Maestas's arms, he had a lab technician collect blood samples from Mr. Macestas, Mr. Irish, and Mr. Renzo. The DNA from Ms. Bott's fingernail scrapings was then tested using a Y-chromosome short-tandem repeats (¥-STR) DNA analysis 3 to determine if Mr. Maestas, Mr. Irish, or Mr. Renzo could be excluded as the source. 'The test results indicated that Mr. Irish and Mr. Renzo could be excluded, but Mr. Maestas could not be ruled out as the source of the DNA found under Ms. Bott's fingernails. In addition, a fingerprint expert determined that two fingerprints taken from inside Ms. Bott's home matched Mr. Maestas and another matched Mr. Irish.

10 Based on the foregoing evidence, the State charged Mr. Maestas with the aggravated murder of Ms. Bott and the aggravated burglary of Ms. Chamberlain's home.

II. GUILT PHASE

A. Pretrial Motions and Death Penalty Exemption Hearing

{11 Before trial on these charges, Mr. Maestas filed motions regarding the admissibility of the fingerprint and DNA evidence and a motion to strike the option of the death penalty pursuant to Atkins v. Virginia, 4 a case that precludes the execution of persons who are mentally retarded. 5 During a pretrial hearing to discuss the motions regarding the admissibility of the fingerprint and DNA evidence, the prosecution brought to the judge's attention the fact that Mr. Maes-tas was not present in the courtroom. Mr. Maestas was then brought into the courtroom and the judge explained what had been discussed in his absence.

{12 In his motion regarding the fingerprint evidence, Mr. Maestas claimed that such evidence is not inherently reliable and requested that the court hold a hearing to determine the reliability of fingerprint evidence prior to such evidence being admitted. In the alternative, he requested a cautionary jury instruction regarding fingerprint evidence. The court heard argument on this issue during a pretrial hearing, but ultimately denied his motion. In his motion regarding the DNA evidence, Mr. Maestas argued that the Y-STR testing method was novel and not inherently reliable. The court held a hearing on Mr. Maestas's motion and heard testimony from a forensic scientist employed by Sorenson Forensics. At the end of this testimony, the court took judicial notice of the inherent reliability of Y-STR DNA testing and allowed the DNA evidence to be introduced at trial.

*907 {13 Concerning Mr. Maestas's claim that he was mentally retarded and therefore exempt from the death penalty under Atkins, the court heard testimony from Mr. Maes-tas's expert and the State's two experts. After hearing this testimony, the court denied Mr. Maestas's motion and declined to remove the death penalty as a potential sentence.

B. Jury Selection

114 After the pretrial motions, the court proceeded to empanel a jury. In the jury selection process, the court held an initial meeting with potential jurors where it distributed a questionnaire, asked preliminary questions about their qualifications for service, and admonished them regarding proper juror conduct. 6 Mr. Maestas was not present for this initial meeting with the potential jurors, but he was present when the court conducted the traditional voir dire and questioned potential jurors regarding their feelings about imposing the death penalty. As part of the voir dire process, Mr. Maestas tried to remove three prospective jurors for cause: jurors 16, 20, and 27. The court denied each of these challenges. Mr. Maes-tas then used three of his four peremptory challenges to remove these jurors from the juror pool. The State successfully removed one prospective juror for cause, juror 50, and used three of its four peremptory challenges to remove other jurors. At the close of voir dire, the court empaneled the jury, and the six-day trial began.

C. Evidence and Arguments

15 During the trial, the State presented evidence that Mr. Maestas was guilty of aggravated murder and aggravated burglary. Specifically, the State introduced the testimony of Mr. Irish and Mr. Renzo, linking Mr. Maestas to the murder of Ms. Bott and the burglary of Ms. Chamberlain's home. The State also introduced the testimony of Mr. Maestas's ex-wife, who lived in Ms. Bott's neighborhood. In addition, the State presented DNA and fingerprint evidence and the medical examiner's testimony.

1. DNA and Fingerprint Evidence

T 16 Regarding the DNA evidence, the forensic scientist explained the Y-STR DNA testing method and testified that, based on this analysis, both Mr. Irish and Mr. Renzo could be excluded as the source of the DNA from under Ms. Bott's fingernails But he stated that neither Mr. Maestas nor his paternal relatives could be excluded. Regarding the fingerprint evidence, an expert testified that two fingerprints taken from inside Ms. Bott's home matched Mr. Maestas and one fingerprint matched Mr. Irish.

2. Medical Examiner's Testimony

T17 At trial, the medical examiner, Dr. Grey, testified concerning the cause and manner of Ms. Bott's death. After explaining his role as a medical examiner, he stated that he found injuries on Ms. Bott consistent with stabbing, strangulation, and blunt force trauma, but that he found no evidence of rape or trauma to the vaginal area. Dr. Grey was also asked whether the injuries inflicted on Ms. Bott were "purposely inflict, ed." In response, he testified that the stab wounds "appeared to be consistent with an intentional stab wound" and that the strangulation was "purposefully inflicted."

3. Mr. Maestas's Defense

" 18 At the close of the State's case, Mr. Maestas moved for a directed verdict, arguing that the State had not proven that the murder was committed in an especially heinous manner or that the murder was committed during an attempt to commit forcible sexual abuse. In addition, Mr. Maestas claimed that the State had not proven that he had the requisite intent to support a convietion for aggravated murder. The court denied the motion.

19 Mr. Maestas then proceeded to present his defense, claiming that Mr. Renzo and Mr. Irish stole his car, committed the crimes, and framed him. For support, he presented the testimony of witnesses who claimed to have heard Mr. Irish use racial slurs and admit to stealing the car and framing Mr. *908 Maestas. On cross-examination, the State challenged the credibility of these witnesses.

4. Closing Arguments

120 After Mr. Maestas presented his defense, the parties presented their closing arguments to the jury. During the State's closing arguments, the prosecution stated that "defendants usually testify." Further, it indicated that, if Mr. Maestas disputed the DNA evidence, he could have tested it himself.

D. Jury Notes

On the last day of trial, the judge received two notes from the jury. The first note indicated that a juror had read a newspaper article about the trial. Although there is no record of whether the judge made counsel aware of the note, the judge did hold a meeting with the juror who allegedly read the newspaper article and determined that she could continue to serve on the jury. Defense counsel and the prosecution were both present at this meeting with the juror.

T 22 The second note from the jury asked, "Are we here until we've reached a verdict? Overnight? Until 57" The judge responded with a note stating, "Not overnight. How long? We will all have a say if necessary." Although the judge met with counsel that day regarding a note from the jury, it is unclear from the record whether the judge informed the parties of this note or of his written response.

E. Conviction

23 The jury convicted Mr. Maestas of the aggravated murder of Ms. Bott and the aggravated burglary of Ms. Chamberlain's home. Regarding the aggravated murder charge, the jury found four aggravating factors: (1) the murder was committed in the course of an aggravated burglary; (2) the murder was committed in the course of an aggravated robbery; (8) the murder was committed in the course of an attempt to commit forcible sexual abuse; and (4) the murder was committed in an especially heinous, atrocious, eruel, or exceptionally depraved manner.

III. PENALTY PHASE

A. Evidence of Aggravating Circumstances

1 24 After the jury reached its verdict, the State sought to prove that death was the appropriate penalty. The State therefore introduced aggravating circumstances relevant to the sentence, as well as victim impact evidence concerning the crime.

1. Criminal History and Other Crimes

125 The State presented evidence concerning Mr. Maestas's history of criminal conduct, both as a youth and as an adult. For example, the State introduced a certified copy of Mr. Maestas's conviction in 1990 for burglary of the home of Phyllis Demetropo-los. The State also presented Ms. Demetro-polos to testify about the cireumstances surrounding the burglary.

{26 In addition, the State introduced the following evidence regarding specific crimes that Mr. Maestas committed as an adult, but for which he was not convicted: (a) the aggravated burglary of Alinda McClean's home and (b) the aggravated burglary of Leone Nelson's home.

a. -The McClean Incident

27 In the 1970s, Mr. Maestas pled guilty to the third degree felony of theft by receiving stolen property, based on his possession of property stolen from Ms. McClean. The State sought to prove beyond a reasonable doubt that he had actually committed aggravated burglary, although he had not been convicted of that crime. Specifically, the State introduced Mr. Maestas's plea, parole revocation documents, and police testimony to show that he committed aggravated burglary. Because Ms. McClean had since passed away, the State also presented testimony about the incident from her granddaughter.

b. The Nelson Incident

1 28 In the 1990s, Mr. Maestas pled guilty to the class A misdemeanor of theft for stealing Ms. Nelson's property. Again, although he had not been convicted of aggravated *909 burglary for this incident, the State sought to prove beyond a reasonable doubt that he had committed aggravated burglary. Specifically, the State introduced Mr. Maestas's plea and presented Ms. Nelson to testify about the incident. Ms. Nelson testified that she was attacked in her home by a man who repeatedly hit her while he tried to rob her. Although she had been unable to identify her assailant at the time of the attack, at the trial in this case, she identified Mr. Maestas.

2. Other Aggravating Cireumstances and Victim Impact Evidence

1 29 The State also presented other aggravating evidence, including pictures of Ms. Bott's bedroom after her assault and photographs of her body. Further, the State introduced the testimony of Mr. Maestas's ex-wife, who testified that Mr. Maestas had not taken responsibility for the crime. The State also introduced the testimony of an agent with Adult Probation and Parole, and the testimony of a prison caseworker who had supervised Mr. Maestas.

1 30 Further, the State introduced testimony from Ms. Bott's family about the impact of her murder. Specifically, Ms. Bott's granddaughter read from her personal blog about how the murder had affected her.

B. Evidence of Mitigating Circumstances

T 31 After the State presented its case that death was the appropriate penalty, Mr. Maestas's counsel began presenting evidence of mitigating cireumstances. But the day after defense counsel began its presentation, Mr. Maestas personally sent a letter to the court objecting to his counsel's plan to present a witness to testify that she had observed Mr. Maestas having sex with his sister when he was a child. He claimed this testimony was a lie. In response, defense counsel stated that they intended to proceed with presenting all the mitigating evidence they had compiled, despite Mr. Maestas's objections. When the court inquired if defense counsel would be willing to refrain from presenting the specific evidence to which Mr. Maestas objected, but still present the remaining evidence, defense counsel refused and said "it's not negotiable."

132 The trial court then ordered defense counsel to advise Mr. Maestas of the importance of presenting mitigating evidence and to consult with him regarding what evidence, if any, he wanted to present. Defense counsel discussed the mitigating evidence in "broad terms" with Mr. Maestas and described "in pretty specific terms ... what each individual witness would say." After this discussion, Mr. Maestas informed the court that he wished to waive the right to present mitigating evidence. He acknowledged that his decision was knowing and voluntary. He had initially requested that he be allowed to represent himself during the remainder of the penalty phase, but later agreed to retain his defense counsel so that they could make the closing argument on his behalf.

€33 The trial court concluded that Mr. Maestas's decision to waive the right to present mitigating evidence was knowingly and voluntarily made and ordered defense counsel not to present further mitigating evidence. Mr. Maestas then briefly spoke to the jury and said that he did not commit the crime. No other mitigating evidence was presented.

C. Jury Deliberations, Sentence of Death, and Motion for a New Trial

1. Jury Deliberations and Sentence of Death

34 During jury deliberations in the penalty phase, the judge received a note from the jury. The note asked whether the parole board could "overrule" a jury's sentence of life without parole. The judge responded with a note stating that the jury was "directed to the jury instructions as a whole and specifically Instruction No. 12." Instruction No. 12 stated that "[i]f a person is sentenced to life in prison without parole, this means that he will never be eligible for parole and will spend the remainder of his life in prison." The judge informed counsel of this note and his response before the jury's sentence was read in open court, but after the jury had reached its verdict. Defense counsel did not object at the time, but did object five days later, before the court formally imposed *910 Mr. Maestas's sentence. The court ruled that this motion was untimely. The jury ultimately sentenced Mr. Maestas to death.

2. Motion for a New Trial

1 35 After the jury reached its verdict, Mr. Maestas filed a motion for a new trial, arguing that two jurors, jurors 8 and 18, engaged in misconduct. Specifically, he alleged that jurors 8 and 18 provided false information on their court questionnaires and interjected prejudicial extraneous information into the jury's deliberative process. The trial court denied this motion.

STANDARD OF REVIEW

136 Our standard of review varies with the different types of challenges that Mr. Maestas raises. "In reviewing a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict." 7 When reviewing the trial court's discretionary rulings, we will find that it has abused its discretion only if "no reasonable [person] would take the view adopted by the trial court." 8 Further, we review "conclusions of law for correctness." 9 But when we review mixed questions of fact and law, "the amount of deference that results will vary according to the nature of the legal concept at issue." 10

137 We also note that we "will review errors raised and briefed on appeal in death penalty cases, even though no proper objection was made at trial, but will reverse a conviction based upon such errors only if they meet the manifest and prejudicial error standard." 11 "[IJn most cireumstances the term 'manifest injustice' is synonymous with the 'plain error' standard." 12 "To be considered plain or manifest error, an error must be both harmful and obvious." 13 An error is obvious only if "the law governing the error was clear at the time the alleged error was made." 14 An error is harmful if, "absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, [if] our confidence in the verdict [or sentence] is undermined." 15

ANALYSIS

38 On appeal, Mr. Maestas raises several arguments concerning his convictions and his sentence under Utah's death penalty scheme. We have organized his claims into six categories: (I) jury issues, (I1) evidence and arguments in the guilt phase of the trial, (IIl) challenges regarding the death penalty exemption hearing, (IV) evidence and arguments in the penalty phase, (V) constitutional challenges to Utah's death penalty scheme, and (VI) claims of cumulative error.

I. JURY ISSUES

139 Mr. Maestas raises five challenges concerning the selection of the jury, communications with the jury, and the jury's deliberations. Specifically, he alleges that he is entitled to a new trial because (A) during voir dire, the court improperly granted and improperly denied for-cause challenges to prospective jurors; (B) the court erred when it failed to admonish the jurors on some occasions; (C) the court erred when it conducted proceedings and communicated with the jury in the absence of Mr. Maestas and his counsel; (D) the court improperly responded to the jury's question regarding life without parole; and (E) jurors committed *911 misconduct by considering extraneous prejudicial information during their deliberations. For the following reasons, we reject each of these claims.

A. The Trial Court Did Not Commit Any Prejudicial Error Regarding the For-Cause Challenges to the Prospective Jurors

T40 Mr. Maestas argues that the trial court committed reversible error in granting the State's for-cause challenge to prospective juror 50 and in denying his for-cause challenges to prospective jurors 16, 20, and 27. He contends that, as a result, he was forced to use three of his four peremptory challenges to remove those jurors.

T41 As an initial matter, when reviewing the propriety of a denial or grant of a challenge for cause, "we look to the entire voir dire exchange with the challenged juror." 16 In addition, "a trial court's determination of whether to exeuse a prospective juror for cause [should] not be reversed absent an abuse of discretion." 17 Further, under Utah law, "a per se reversible error does not occur whenever a party is compelled to use a peremptory challenge to remove a jury member that the trial court erroneously failed to remove for cause." 18 Instead, to prevail on a claim of error based on the court's failure to remove a prospective juror, a defendant must demonstrate that (1) the court erred when it failed to excuse a prospective juror for cause, and (2) the error prejudiced the defendant, or, in other words, that "a member of the jury [that was empaneled] was partial or incompetent." 19 We address both elements below.

1. The Trial Court Erred Only When It Denied the For-Cause Challenge to Prospective Juror 20

I 42 Regarding jury selection in death penalty cases, the U.S. Supreme Court has held that "a juror may not be challenged for cause based on his views about capital punishment wnless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." 20 Rule 18(e)(10) of the Utah Rules of Criminal Procedure reflects this standard. 21 And rule 18(e)(14) provides that a for-cause challenge is also appropriate if the prospective juror's "[elonduct, responses, state of mind or other cireumstances [would] reasonably lead the court to conclude the juror is not likely to act impartially. 22

148 Thus, once statements are made during voir dire that "facially raise a question of [a prospective juror's] partiality or prejudice, an abuse of discretion occurs unless the challenged juror is removed by the court or unless the court or counsel investigates further and finds the inference rebutted." 23 "Rebuttal is accomplished by showing that a juror's statement was merely the product of a light impression and not one that would close the mind against the testimony that may be offered in opposition." 24 With this standard in mind, we turn to the prospective jurors challenged in this case-prospective jurors 50, 16, 27, and 20.

944 First, Mr. Maestas asserts that, because the court based its decision on prospective juror 50's "hesitation or conscientious seruples against [imposing the] death penalty," it erred in removing that prospective juror for cause. We disagree. The *912 court removed prospective juror 50 for two reasons entirely unrelated to his views on the death penalty: (1) his statement that he would be unable to concentrate during a trial because of the business he would lose during that time and (2) his comments that he might not follow the law if empaneled on a jury. During voir dire, prospective juror 50 repeatedly stated that he had financial concerns about sitting for a lengthy trial and that these concerns "would make it difficult [for him] to render a fair and impartial verdict in this case." In addition, he would not commit to following the court's instructions about when the death penalty would be appropriate. In fact, he consistently stated that he could not commit to following the law or abiding by the court's instructions because he would not set aside his own legal education, opinions, and attitude. Given these repeated and unrebutted statements, it was not an abuse of discretion for the trial court to remove prospective juror 50.

$45 Second, Mr. Maestas argues that the court erred in failing to remove prospective juror 16 after the prospective juror indicated that "he would consider evidence that is mitigation under Utah's statute as aggravation." According to Mr. Maestas, the prospective juror's single statement that he would "probably" consider an actor's drug use as an aggravating circumstance demonstrated that he would not act impartially. We disagree. Prospective juror 16's statement was made without context or a discussion of the relevant statutory aggravating and mitigating cireumstances. Indeed, prospective juror 16 was never told that an actor's drug use during the commission of a crime was statutorily considered a mitigating civreumstance. 25 Without this background or any context, his isolated statement does not suggest that he would be unable to follow the law and act impartially. Rather, at most, his response appears to be "merely the product of a light impression and not one that would close the mind" against the evidence and the law. 26 Indeed, prospective juror 16 consistently and repeatedly stated that he would follow the law and the court's instructions. Accordingly, the trial court did not abuse its discretion in determining that prospective juror 16 would act impartially.

(146 Third, Mr. Maestas argues that the court erred in failing to remove prospective juror 27 after she stated that death was the appropriate penalty in cases of intentional murder. He asserts that her statement demonstrates that she would not act impartially. We disagree. Although prospective juror 27s statement may raise a question of partiality, the statement appears to be merely a light impression. It was made after defense counsel rephrased the prospective juror's original statement that death may be appropriate for "cold-blooded murder." Further, the challenged remark was rebutted by prospective juror 27's responses that she did not believe that the death penalty was the only appropriate sentence for aggravated murder, that she did not have strong feelings about the death penalty, and that she would follow the law and the trial court's instructions regarding when to impose the death penalty. Because it appears that the challenged statement was merely a light impression that was sufficiently rebutted, the trial court did not abuse its discretion in determining that prospective juror 27 could act impartially.

147 Fourth, Mr. Maestas argues that the trial court abused its discretion in failing to remove prospective juror 20 after he made repeated statements about his preference for a sentence of death and said that he would look less favorably on Mr. Maestas because of his race. We agree that, based on the entire voir dire exchange with prospective juror 20, his views would likely "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." 27

*913 148 The record demonstrates that prospective juror 20 stated numerous times that death was always the appropriate penalty for murder, that his religion "expected" death for the crime of murder, and that he had very strong opinions about the punishment being equal to the crime. In addition, prospective juror 20 stated that he could not think of anything that defense counsel could say that would change his mind regarding death being the appropriate punishment for "murder of an innocent." Further, the prospective juror's comment that he would look less favorably on Mr. Maestas because of his race was never rebutted. Although prospective juror 20 did state that he could follow the law, this comment alone is not enough to show that his numerous other statements about always imposing a sentence of death were merely light impressions. 28 And there is no other evidence that rebuts the question of partiality or prejudice raised by prospective juror 20's responses. Hence, the court had insufficient evidence that prospective juror 20 was impartial and therefore erred in failing to remove him for cause.

2. The Error Was Not Harmful Because Mr. Maestas Has Not Demonstrated that a Biased Juror Was Empaneled

149 Having determined that the court abused its discretion only in denying only the for-cause challenge to prospective juror 20, we next examine whether that error prejudiced Mr. Maestas. Following the denial of his for-cause challenge, Mr. Maestas used a peremptory challenge to remove prospective juror 20. Where a defendant uses a peremptory challenge to remove a juror who should have been removed for cause, we require that the defendant demonstrate prejudice. 29 To show prejudice, a defendant must demonstrate that "as a result of the loss of his peremptory challenge he was not able to remove another subsequently summoned juror who ultimately sat on the jury, and who was partial or incompetent." 30

T50 In this case, Mr. Maestas does not make such an assertion. Instead, he claims that, under State v. Saunders, we can find prejudice if we "take into account on a cumulative basis all erroneous rulings with respect to rulings on voir dire and for-cause challenges." 31 As an initial matter, we note that the position espoused in Saunders is not controlling in this case. 32 But even under Mr. Maestas's position, there is no cumulative error regarding the for-cause challenges in this case. Indeed, we have recognized only one error-the failure to remove prospective juror 20. Accordingly, we reject his claim that any error during voir dire entitles him to a new trial.

B. The Court's Occasional Failures to Admonish the Jury Did Not Result in Harm to Mr. Maestas

151 Mr. Maestas claims that the trial court failed to admonish the jury nine times over the course of the two-week trial: before one break on the first day of the guilt phase, four breaks on the second day, two breaks on the fifth day, and a break on both the first and second days of the penalty phase. He claims that he should be afforded a new trial because of these failures to admonish the Jury. Because this claim was not preserved, Mr. Maestas must show plain error, meaning *914 an error that was obvious and harmful. 33 In this case, Mr. Maestas has not shown harm. 34

T52 Mr. Maestas contends that we should presume harm and grant a new trial in every case where the court fails to admonish a jury at any recess. We decline to adopt such a rule. Automatically granting a new trial for any instance where the court fails to admonish the jury before a recess fails to take into account whether, and to what extent, the jury has been properly admonished by the court in other instances,. If the admonition "is not given but the harm that it was designed to forestall never occurs, it would be pointless to order a new trial simply to have the [admonition] given." 35

153 We do not, however, foreclose the possibility that a presumption of harm may be warranted based on the particular cireumstances of a case. 36 But no presumption of harm is warranted in this case. Here, the court properly admonished the jury at least seventeen times over the two-week proceedings, including at key times, such as at the initial meeting with prospective jurors and at the end of every day during the guilt phase. Although the court failed to admonish the jury in nine instances, some of those failures occurred before short interludes where the jury would have had little opportunity to forget prior admonitions, engage in discussion, or be exposed to extraneous information.

154 Because this case does not warrant a presumption of harm, Mr. Maestas must show that he was actually harmed by the court's failures to admonish the jury. He contends that he must have been harmed because the court's failure resulted in a juror being exposed to publicity about the case. 37 But although a juror admitted that she had seen a headline about the case and a picture in the newspaper, there is nothing in the record to indicate that the failures to admonish played any role in the juror's conduct. Indeed, the jurors had been properly admonished regarding reading newspapers. Further, the questioning of the juror indicates that she understood the admonitions and, consistent with the previous admonitions, she "didn't read the stories" and "hald]n't really been looking" for anything about the case. Accordingly, Mr. Maestas has not shown harm, and we therefore decline to grant a new trial on this basis.

C. Mr. Maestas's Constitutional Rights Were Not Violated When, in His Absence amd the Absence of His Counsel, the Court Conducted Certain Proceedings and Communicated with the Jury

1[ 55 Mr. Maestas asserts that he is entitled to a new trial because his constitutional rights to be present and to counsel were violated when he and his counsel were absent from certain court proceedings and communications with the jury. 38 We disagree.

*915 156 "[An otherwise valid convietion should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." 39 And we note that "a defendant is guaranteed the right to be present at any stage of the erimi-nal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." 40 Thus, the defendant is entitled to appear "whenever his presence has a relation, reasonably substantial, to the fullllness of his opportunity to defend against the charge" 41 or where his "presence would contribute to the fairness of the procedure. 42 But "this privilege of presence is not guaranteed when presence would be useless, or the benefit but a shadow," 43

157 In addition to the right to be present, the Sixth Amendment affords the defendant the right to assistance of counsel. 44 "As a general matter, a defendant alleging a Sixth Amendment violation must demonstrate a reasonable probability that ... the result of the proceeding would have been different" had the defendant been granted the assistance of counsel. 45 But "(there is an exception to this general rule. 46 The denial of counsel is a structural error that does not require a showing of harm "where assistance of counsel has been denied entirety or during a critical stage of the proceeding." 47 A critical stage is "a step of a criminal proceeding ... that h[olds] significant consequences for the accused." 48 Determining whether a given stage of a proceeding is critical involves considering "whether the presence of ... counsel is necessary to preserve the defendant's basic right to a fair trialf,] whether potential substantial prejudice to the defendant's rights inheres in the particular confrontation[,] and the ability of counsel to help avoid that prejudice." 49

T58 With these standards in mind, we address Mr. Maestas's claim that he was denied the right to be present and the right *916 to counsel when (1) he and his counsel: were absent from certain proceedings and (2) the judge responded to jury notes without first informing the parties.

1. Mr. Maestas's Absence and the Absence of His Counsel from Certain Court Proceedings Did Not Violate His Constitutional Rights

159 Mr. Maestas contends that his right to be present and right to counsel were violated when he and his counsel were absent from certain court proceedings over the course of the guilt and penalty phases of the trial. Specifically, he claims that his rights were violated when (a) he and his counsel were absent from an initial meeting with prospective jurors, (b) he was absent from the beginning of a preliminary motion hearing, and (c) he and his counsel were absent during the judge's unrecorded conversation with and dismissal of the jury on one day in the penalty phase. Because these claims were not preserved, we consider them only for plain error, which means that an error must be both harmful and obvious. 50

a. Mr. Maestas's Absence and the Absence of His Counsel from the Initial Meeting with Prospective Jurors Did Not Violate His Right to Be Present and Right to Counsel

T60 Prior to holding the initial meeting with prospective jurors, the judge and the parties discussed the scheduled meeting on multiple occasions, but the judge stated that it was not necessary for the parties to attend. As a result, neither Mr. Maestas nor his counsel appeared at the initial jury meeting. At that meeting, the judge administered an oath and asked the prospective jurors a few preliminary questions regarding their general qualifications for jury service. 51 The judge presented each prospective juror with a questionnaire and admonished them regarding proper juror conduct. The prospective jurors then began completing their questionnaires. But when they had questions, the judge told them to answer the questionnaire to the best of their ability and informed them that questions would be addressed at a following meeting with counsel present.

161 Mr. Maestas asserts that we should grant him a new trial because holding the meeting in the absence of his counsel constituted a structural error that does not require a showing of harm, or, in the alternative, holding the meeting in his absence and the absence of his counsel was a harmful error. We disagree.

T62 First, because the initial meeting was not a "critical stage" of the proceeding, Mr. Maestas has not demonstrated that holding the meeting in the absence of his counsel constituted a structural error. The focus of the meeting was on basic ministerial matters. 52 Indeed, the judge simply administered the oath, asked basic questions about the jurors' eligibility for service, and gave each prospective juror a questionnaire. No jurors were selected or removed at this meeting, and the judge deferred all substantive questions and discussion until a time when counsel would be present. Accordingly, the initial meeting did not "h[old] significant consequences for the aceused." 53 Because it was not a critical stage, defense counsel's absence was not a structural error and so we will not grant a new trial without a showing of harm.

163 Second, Mr. Maestas has failed to demonstrate that it was a harmful error to *917 conduct the meeting in his absence and the absence of his counsel. Indeed, there is no indication that their absence from that initial meeting resulted in an impartial jury or an otherwise unfair trial. Mr. Maestas contends that he was harmed because his absence prevented him from "exerting ... [a] subtle psychological connection with the jury" and "demonstrating to the jury from the first day that he was a human being on trial for his life." But he had ample opportunity to establish such a connection with the jury throughout voir dire and the trial.

T 64 Mr. Maestas also asserts that he was harmed because his counsel's absence prevented them from being able to answer the prospective jurors' questions or follow up on concerns about the jurors' qualifications for service. But his counsel was provided an opportunity to question jurors during voir dire to ensure that the jurors were qualified. Because the judge deferred the prospective jurors' questions and did not remove any jurors, the prospective juror pool remained the same and Mr. Maestas was not placed in a different position as a result of the meeting. Accordingly, Mr. Maestas has not demonstrated that he was harmed by his or his counsel's absence from this initial meeting. We therefore decline to grant a new trial on this basis.

b. Mr. Maestas's Absence from the Beginning of a Pretrial Motion Hearing Did Not Violate His Right to Be Present

T65 Prior to trial, the court held a pretrial motion hearing to review the parties' various motions. Before Mr. Maestas came into the courtroom, counsel made their appearances and discussed the outstanding evidentiary motions to be heard that day, including issues related to the motion regarding fingerprint evidence. At that point, the prosecution noted that Mr. Maestas was not present and defense counsel requested that Mr. Maestas be brought into the courtroom. Shortly thereafter, Mr. Maestas entered the courtroom and the court explained what had occurred in his absence. Neither Mr. Maes-tas nor his counsel raised any objections to his absence before or after he came into the courtroom. On appeal, however, Mr. Maes-tas contends that his absence from the beginning of this hearing violated his right to be present. We disagree.

T66 Mr. Maestas has not demonstrated that the court committed an obvious and harmful error. The beginning of this pretrial motion hearing was not a "stage of the criminal proceeding that [was] critical to its outcome." 54 Further, there is no indication that Mr. Maestas's "presence would [have] contribute[d] to the fairness of the procedure." 55 At the beginning of the pretrial motion hearing, the judge and counsel only briefly discussed the motions before Mr. Maestas entered the courtroom. And as soon as Mr. Maestas was present, the court informed him of what had occurred in his absence. He was then present for the substantive discussion that took place during the remainder of the hearing. Thus, there is no indication that his presence would have contributed to the fairness of the beginning of the pretrial motion hearing. Because his absence from the beginning of the pretrial motion hearing was not an obvious and harmful error, we decline to grant Mr. Maestas a new trial on this basis.

c. The Absence of Mr. Maestas and His Counsel During the Judge's Unrecorded Communication and Dismissal of the Jury Did Not Violate Mr. Maes-tas's Rights

1 67 On the third day of the penalty phase, Mr. Maestas asked to proceed as his own counsel. In response, the judge and counsel for both parties discussed this request outside the presence of the jury. The court then took a brief recess before ruling on Mr. Maestas's request. When the judge returned, he stated as follows:

Just prior to coming in I excused the jury and asked them to come back in the morning, because earlier when I went back to advise the jury there was a delay, several indicated that they had appointments, had *918 made arrangements at 3, 4, 4:80 expecting [us to adjourn at the] normal time. I told them that in any event had we gone forward we would have accommodated that. They will be here in the morning.

Neither Mr. Maestas nor his counsel objected to the judge's interaction with the jury.

' 68 On appeal, however, Mr. Maestas contends that the judge's interaction violated his right to be present and right to counsel because the interaction took place in his absence and the absence of his counsel. He argues that prejudice should be presumed when a judge engages in ex parte communication with the jury. But we decline to adopt an automatic presumption of prejudice, and, because Mr. Maestas has not shown that the judge's unrecorded communication with the jury resulted in harm, we reject Mr. Maestas's claim that he should be granted a new trial on this basis.

169 In declining to automatically presume prejudice where a judge communicates ex parte with the jury, we note that we have held that a presumption of prejudice may arise as a result of some ex parte contact with the jury. 56 But we have never held that a presumption of prejudice automatically arises from every instance of ex parte communication between the judge and the jury. In fact, the U.S. Supreme Court has held that "[the defense has no constitutional right to be present at every interaction between a judge and a juror" and that the "mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right." 57 This is because "the Constitution does not require a new trial every time a juror has been placed in a potentially compromising situation." 58 Indeed, "(there is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. 59 Thus, while the Court has acknowledged that ex parte communications between the judge and the jury may necessitate overturning a conviction because of prejudice on some occasions, 60 it has held that ex parte communication between a trial judge and a juror can be reviewed for harmless error. 61

70 We note that it may be appropriate to presume prejudice in some instances, such as where the judge discusses substantive matters with jurors. 62 In such cases, the judge's communication may have influenced the jury in unknown ways that could potentially affect the outcome of the case. 63 But in this case, *919 the judge's communication with the jury did not involve any substantive issues; instead, the interaction was brief and dealt with the timing of the jury's dismissal for the day. Further, to the extent that this communication could be considered "relate[d] to some aspect of the trial," the judge appropriately disclosed the communication and neither Mr. Maestas nor his counsel objected to the interaction. Accordingly, we do not presume prejudice in this case.

171 Without a presumption of prejudice, Mr. Maestas must show harm in order to prevail on his claim. He has not done so. While he contends that the judge's off-the-record dismissal of the jury could have caused the "jury to feel "a greater warmth and affinity toward the judge," it seems unlikely that jurors would feel any differently toward the judge than if he had dismissed them with counsel and Mr. Maestas present. Further, as the judge was not an adversary to Mr. Maestas in the proceedings, it would not have been problematic if jurors felt appreciative toward the judge after being dismissed. In addition, while Mr. Maestas contends that it is possible that the judge said something to the jurors to indicate that Mr. Maestas was causing a delay, he proffers no evidence to support this conjecture. Because he has not demonstrated harm, we decline to grant Mr. Maestas a new penalty phase on this basis.

2. The Judge's Responses to Three Notes from the Jury Did Not Violate Mr. Maes-tas's Right to Be Present or His Right to Counsel

172 Mr. Maestas argues that he was denied his right to be present and his right to counsel when the judge responded to three notes sent by the jury without first informing counsel. Specifically, he challenges the judge's response to (a) two notes the jury sent during the guilt phase of the trial and (b) one note sent during the penalty phase. We reject these claims.

a. The Judge Did Not Commit Reversible Error in His Responses to the Two Notes the Jury Sent During the Guilt Phase

173 As an initial matter, we set forth the contents of the two notes the jury sent to the judge during the guilt phase, along with the judge's responses. The first note (Juror Tainting Note) was written on the sixth day of the guilt phase and stated, "Last week I made a comment about hoping to not miss all 3 weeks my kids are off track. [Juror 8] (on the back row) leaned over and said, "I may have read an article in the paper that said trial would last only two weeks.'" Although it is not clear from the record that the judge informed counsel that he had received this note, he did hold an in-chambers meeting with defense counsel, the prosecution, and juror 8.

T 74 During that meeting, the judge told juror 8, "We have some concerns about whether or not anything in the press or anything in the paper has come to your attention, that you have read about the trial." Juror 8 responded that she had read a headline about the trial and saw a picture in the paper, but that she was not looking for any information and did not read the accompanying story. Defense counsel declined to ask any additional questions. The prosecution, however, inquired into whether juror 8 would follow the court's instructions despite any information she gleaned about the case from the headline. Based on juror 8's assurances that she had not read any articles and that she would follow the court's instructions, the judge, the prosecution, and defense counsel agreed that juror 8 would not be removed.

T 75 The jury sent the judge a second note (Scheduling Note) during or before deliberations on the last day of the guilt phase. The note asked, "Are we here until we've reached a verdict? Overnight? Until 5?" Although it is unclear whether the judge informed the parties of this note, the record shows that the judge wrote a note to the jury responding, "Not overnight. How long? We will all have a say if necessary."

T76 Mr. Maestas contends that the judge committed reversible error in responding to the two jury notes without disclosing the exact content of the notes on the record. Because he did not preserve these arguments *920 below, we review for plain error. 64 Accordingly, Mr. Maestas must demonstrate an error that was both obvious and harmful. 65

(i) The Judge's Response. to the Juror Tainting Note Was Not Erroneous

177 We note that, in this case, counsel was present during the judge's response to the allegations raised in the Juror Tainting Note. Although the judge and counsel met with juror 8 regarding whether she had read any newspaper articles about the case, Mr. Maestas asserts that his right to be present and his right to counsel were violated because there is no record that the judge disclosed the contents of the note to him or his counsel. We are not persuaded that this was a reversible error.

178 As an initial matter, "(aln in-chambers conference concerning the dismissal of a juror ... is not a stage of the trial when the absence of the defendant would frustrate the fairness of the trial so long as counsel for the defendant is present." 66 And Mr. Maestas's counsel was present for the in-chambers conference regarding juror 8. Further, we have held that, where a court addressed with counsel and the defendant the concerns raised in a juror's note, failing to disclose the exact contents of a note on the record prior to responding is not a reversible error. 67 In State v. Kozik, the jury's foreman sent a note to the judge inquiring whether "if the jury were 'hung' on one count of the [charge], it would invalidate the others." 68 Although the judge responded to the jury's question in the presence of counsel and the defendant, he did not read the jury's question into the record until after he gave his response. 69 The "[dlefendant objected to the fact that he did not know the contents of the question before it was answered and asked for a mistrial." 70 In declining to find a reversible error, we stated that a defendant must show harm in order to prevail on a claim that a judge should have disclosed the exact contents of a note from the jury on the record before responding. 71 Thus, to prevail on his claim, Mr. Maestas must demonstrate harm.

T 79 In this case, even if the judge did not show the Juror Tainting Note to Mr. Maes-tas or his counsel, the error was harmless for three reasons. First, Mr. Maestas has not alleged that juror 8 was partial or biased because of any newspaper article that she read during the course of the trial. 72 Second, nothing in juror 8's responses indicated that she was partial or biased. Indeed, juror 8 stated that she had seen only a headline and a photograph, but had not read any articles. Mr. Maestas has not proffered any evidence to rebut this statement. Finally, the judge informed defense counsel about allegations that juror 8 had read a newspaper article about the case. And when the judge questioned juror 8 about these allegations, defense counsel was present and had an opportunity to ask questions. But after juror 8 stated that she had read only a headline and could still follow the judge's instructions, defense counsel responded that he did not object to her remaining on the jury. If there was any doubt about juror 8's impartiality, defense counsel could have asked further questions or taken other action at that point.

180 Because defense counsel was present at the in-chambers conference to address the allegations in the Juror Tainting Note and *921 had an opportunity to question juror 8, Mr. Maestas was not deprived of his right to counsel or his right to be present at a critical stage of the proceeding. Further, we conclude that Mr. Maestas has not demonstrated that he was harmed by the judge's failure to disclose the exact contents of the note on the record. Accordingly, we reject the assertion that Mr. Maestas is entitled to a new trial on this basis.

@) The Judge's Response to the Scheduling Note Was Not Erroneous

181 Mr. Maestas asserts that, when the judge responded to the Scheduling Note, he reinstructed the jury outside of his presence and the presence of his counsel. We reject this characterization of the judge's response.

182 A defendant has the constitutional right to be present at "any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure. 73 In addition, a defendant has the constitutional right to counsel during any "critical stage of the proceeding," 74 meaning a step "that hlolds] significant consequences for the accused." 75 Some courts have held that a critical stage of a criminal proceeding occurs when the jury is given supplemental instructions about the substantive elements of an offense, or when a deadlocked jury is given further instructions about how to proceed. 76 But courts have recognized that a judge's communication with jurors regarding scheduling information does "not fit] ] within the category of jury instruction or re-instruction that demands the presence of counsel," 77

183 In Valentine v. United States, the judge delivered a note to the jury without the parties' knowledge. 78 The note informed the jury that, if the jury had not finished deliberating by a certain time, it would have to reconvene at a later date because the judge was scheduled to travel. 79 The reviewing court held that, because the note conveyed only "scheduling information," the communication did not constitute instruction or re-instruction and therefore was not a critical stage of the proceeding. 80 Similarly, in United States v. McMurry, a trial judge verbally informed a jury, in the absence of the defendants and the counsel for one of the defendants, "that he had to catch a plane in several hours and that if [the jury] had not finished deliberating by then he would call a recess over the weekend and allow deliberations to continue the following week." 81 The United States Court of Appeals for the Tenth Cireuit reasoned that the statement "had nothing whatever to do with the length of deliberations but was ... a needed schedule," and therefore "can in no way be considered as an instruction." 82 Thus, the court concluded "that the statement was simply not an instruction at all," and rejected the *922 defendants' challenge to this communication. 83

T84 As in Valentine and McMurry, the judge's response to the Scheduling Note in this case addressed only scheduling matters. Specifically, the jury asked the judge whether they were to deliberate "until [they] reached a verdict? Overnight? Until 57" And the judge's response was that everyone would "have a say if necessary" on when proceedings would end for the day. This response was not an "instruction" at all. Indeed, the response did not charge the jury to take any action, to return a verdict by a certain time, or to consider any substantive issue. Rather, the judge's response simply informed the jury that, if they did not reach a verdict by the end of the day, they would "have a say" in determining when to conclude their deliberations. Because the response involved only scheduling issues, it was not a critical stage of the proceeding. Aceordingly, we do not presume harm. 84

$85 Mr. Maestas must therefore demonstrate a reasonable probability that, but for his absence and the absence of his counsel, there would have been a more favorable outcome. 85 In evaluating the effect of a judge's response to the jury, courts consider "the statement in context, assessing it under the totality of the circumstances." 86 In this case, the judge's response cannot be said to have harmed Mr. Maestas because it was truthful and did not give the impression "that it was more important [for the jury] to be quick than to be thoughtful." 87 Further, given the accurate and limited nature of the response, it is unlikely that the court would have given a different response had the defense been informed of the Scheduling Note. Finally, there is no evidence to suggest that the jury convicted Mr. Maestas because of its concerns about the length of jury deliberations. Thus, Mr. Maestas was not harmed by the judge's response.

86 Because it was not a critical stage of the proceeding, and because the response did not harm Mr. Maestas, neither his right to be present nor his right to counsel were violated by the judge's responses to the two notes from the jury during the guilt phase. 88 Accordingly, we reject the assertion that Mr. Maestas is entitled to a new trial on this basis.

b. The Judge's Response to the Jury's Note in the Penalty Phase Did Not Violate Mr. Maestas's Right to Be Present or His Right to Counsel

187 After the jury began deliberations regarding 'Mr. Maestas's sentence, it had a question about life without parole (LWOP). It sent a note (LWOP Note) asking, "If we make the decision of life without parole, is that a guarantee? Can the parole board over-rule our decision?" Without informing the parties of the note, the judge responded, "You are directed to the jury instructions as a whole. And specifically [Instruction No. 12." Instruction No. 12 provided: "If a person is sentenced to life in prison without parole, this means that he will never be *923 eligible for parole and will spend the remainder of his life in prison."

188 After the jury had reached a verdict, but before the verdiet was announced in open court, the judge called the prosecution and defense counsel into his chambers and informed them of the LWOP Note and his response. Neither the prosecution nor defense counsel made any objections at that time. But before the court formally imposed Mr. Maestas's sentence, defense counsel objected to the judge's response on the grounds that the judge, by responding to the LWOP Note without informing the parties, had violated Mr. Maestas's right to be present, right to counsel, and right to due process. The judge ruled that his response to the LWOP Note was proper, that Mr. Maestas's motion was untimely, and that the parties had agreed to the appropriateness of the judge's response.

189 On appeal, Mr. Maestas renews his claims that the judge's response to the LWOP Note violated his right to be present, right to counsel, and right to due process. He argues that jury re-instruction is a critical stage of the proceeding and therefore contends that it was structural error for the judge to respond to the note without notifying the parties of the note's contents. He asserts that he should be granted a new penalty phase on this basis. We disagree.

190 While some courts have found that jury re-instruction qualifies as a critical stage of the proceeding, 89 courts have also concluded that, when the judge reiterates a prior jury instruction, the response does not constitute a critical stage that would implicate the defendant's constitutional rights. 90 Because directing the jury to instructions previously agreed upon by the parties is unlikely to prejudice the defendant, we likewise conclude that the reiteration of a jury instruction is not a critical stage of the proceeding. Accordingly, it is not structural error for a judge to reiterate a jury instruction without the defendant or counsel present. In such cireumstances, a defendant must therefore show harm in order to prevail on a elaimed constitutional violation. 91

I 91 In this case, by directing the jury to the instructions as a whole, and particularly to Instruction No. 12, the judge merely reiterated the prior instructions upon which the parties had agreed. Thus, to prevail on his claim, Mr. Maestas must show that he was harmed by the judge's response to the LWOP Note.

192 Mr. Maestas contends that he was harmed because the jury's question shows that it voted to impose death based on an incorrect understanding of the sentencing options, and defense counsel would have requested additional clarification if they had been informed of the note. We are not persuaded by this argument for three reasons. First, as discussed below in Part I.D., we conclude that the judge's response was appropriate and that Mr. Maestas was not harmed by the response because Instruction No. 12 actually misstated the law to his benefit. Second, while juror affidavits indicate that discussion about the meaning of life *924 without parole prompted jurors to write the LWOP Note, one juror's affidavit explicitly stated, "Upon reading Instruction [No.] 12, the question was answered, the jurors agreed to follow the instruction, and the discussion moved on to a different topic." And the other juror affidavits do not contradict this statement. Third, the judge informed counsel of the LWOP Note and of his response prior to the jury announcing its verdict in open court, and counsel did not object. Thus, Mr. Maestas has failed to show that he was harmed by the judge responding to the LWOP Note in his and his counsel's absence.

193 Because the judge's response to the LWOP Note was merely a reiteration of jury instructions previously agreed upon by the parties, and because Mr. Maestas has not shown that he was harmed by this response, we conclude that Mr. Maestas's constitutional rights were not violated. Accordingly, we reject the assertion that Mr. Maestas is entitled to a new penalty phase on this basis.

194 But we note that, even though the judge did not commit reversible error in responding to the jury's three notes, it is advisable for judges to inform counsel and disclose the contents of any jury notes on the record before providing a response. When a judge answers a jury's note without consulting counsel, the judge exposes the verdict to challenges that could easily be avoided. To protect a verdict and to respect a defendant's right to a fair trial, judges should inform counsel of each note they receive from the Jury.

D. The Trial Court Did Not Eirr When it Directed the Jury to Instruction No. 12 in Response to the LWOP Note

195 Mr. Maestas argues that the trial court committed a reversible error because it failed to ensure that the jury understood the meaning of a sentence of life without parole. He asserts that the trial court violated his rights under the Due Process Clause and the Eighth Amendment by its response to the LWOP Note from the jury. Specifically, he argues that the court should have responded that the jury's sentencing decision could not be overruled by the Board of Pardons, instead of directing the jury to Instruction No. 12. Because Mr. Maestas raises constitutional questions, we review the court's conclusions for correctness. 92

96 The U.S. Supreme Court has held that the principles of due process require the sentencing jury in a capital case to be informed that the defendant is ineligible for parole when "the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole." 93 Because "nothing in the Constitution prohibits the prosecution from arguing any truthful information relating to parole or other forms of early release," 94 the jury must be informed of the defendant's parole ineligibility only when both of the above conditions are met. Additionally, the Court has recognized that the Eighth Amendment is implicated when "there is a reasonable likelihood that a juror will misunderstand a sentencing term." 95

197 In Simmons v. South Carolina, the prosecution argued at trial that the defendant's "future dangerousness was a factor for the jury to consider when fixing the appropriate punishment." 96 But the trial court prohibited the defense from arguing in rebuttal that, if the defendant was sentenced to life imprisonment, state law ensured that the *925 defendant would never be eligible for parole. 97 During deliberations, the jury in Simmons sent the judge a note inquiring whether "imposition of a life sentence carrlies] with it the possibility of parole." 98 The judge responded that the jury should not consider parole or parole eligibility and that "tlhe terms life imprisonment and death sentence are to be understood in their [plain] and ordinary meaning. 99 The jury ultimately sentenced the defendant to death. 100

1 98 In finding a violation of the principles of due process, the U.S. Supreme Court highlighted the point that the defense had conclusively established that the defendant "was in fact ineligible for parole under [state] law." 101 Because the defendant could not be paroled, the Court stated that the trial court erred in "refus[ing] to provide the jury with accurate information regarding [the defendant's] parole ineligibility." 102 This error resulted in the jury's question remaining unanswered and the jury being given a "false choice between sentencing [the defendant] to death and sentencing him to a limited period of incarceration." 103

{ 99 Unlike the instructions given in Simmons, in the case currently before us, the trial court's instructions regarding life without parole were sufficient to satisfy Mr. Maestas's constitutional rights for two reasons. First, even if we assume that Mr. Maestas's future dangerousness was at issue, 104 the jury was sufficiently informed about his parole eligibility. In contrast to Simmons, where the jury was told not to consider parole eligibility, 105 in this case the judge directed the jury to Instruction No. 12, which stated, "[ilf a person is sentenced to life in prison without parole, this means he will never be eligible for parole and will spend the remainder of his life in prison." (Emphasis added.) Thus, the jury was specifically instructed regarding Mr. Maestas's ineligibility for parole. In addition, during voir dire, prospective jurors were asked about their understanding of the term "life without parole," and counsel had the opportunity to correct any misunderstanding. Because the jury was sufficiently informed regarding parole eligibility, we conclude that there is not a reasonable likelihood that a juror would have misunderstood the meaning of life without parole.

T100 Second, the trial court was not obliged to tell the jury that the Board of Pardons and Parole could never overrule the jury's sentence of life without parole because such a statement is inaccurate under Utah law. The U.S. Supreme Court's language in Simmons does not require a jury to be instructed in a manner that affirmatively conceals the legal possibility of a defendant's parole." 106 And under Utah law, a sentence of life without parole does not preclude the Board of Pardons and Parole from eventually releasing on parole "a person sentenced to life in prison without parole if the board finds by clear and convincing evidence that the person is permanently incapable of being a *926 threat to the safety of society." 107

{101 For the foregoing reasons, we conclude that the principles of due process and the Eighth Amendment were not violated when the judge responded to the LWOP Note by directing the jury to Instruction No. 12. Accordingly, we reject Mr. Maestas's claim of error.

E. The Trial Court Did Not Err When It Denied the Motion for a New Trial

1102 Mr. Maestas asserts that the trial court erred in denying his motion for a new trial based on two instances of alleged juror misconduct. He asserts that (1) two jurors failed to honestly answer material questions during voir dire and (2) the jury was exposed to and considered extraneous prejudicial information during its deliberations. 108

$108 A trial court may grant a new trial "in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party." 109 We will not reverse a trial court's denial of a motion for a new trial absent a clear abuse of discretion." 110 review the legal standards applied by the trial court in denying such a motion for correctness" and "review the trial court's factual findings for clear error." 111 With that standard in mind, we reject Mr. Maestas's arguments and affirm the trial court's denial of his motion.

1. The Two Jurors Did Not Provide Dishonest Answers on Their Jury Questionnaires

T104 When determining whether a juror's answers during voir dire warrant a new trial, we have adopted the test set forth in McDonough Power Equipment, Inc. v. Greenwood. 112 Under McDonough, a court must order a new trial based on a juror's answers during voir dire "if the moving party demonstrates that (1) 'a juror failed to answer honestly a material question on voir dire, and (2) 'a correct response would have provided a valid basis for a challenge for cause." 113 "Both elements are necessary to successfully challenge the participation of the juror in question." 114

Under the first prong of the McDonough test, a juror's objective honesty is assessed by evaluating whether the answer was true or false at the time it was given. 115 Thus, "an incorrect prediction [about how a juror will behave in a certain instance] does not amount to a dishonest answer" absent evidence that the juror intended to give an incorrect response. 116 Fur *927 ther, "a juror who mistakenly fails to reveal relevant information because of a clearly ambiguous question cannot be said to have 'dishonestly' answered a material question." 117 As to the second prong of the McDonough test, there is a valid basis for a challenge for cause if the juror expresses an inability to view the evidence impartially. 118 With these principles in mind, we examine the voir dire responses given by jurors 8 and 18, and we conclude that Mr. Maestas has failed to satisfy the first prong of McDonough for either Juror.

106 First, juror 8 stated in voir dire that, based on her attendance in a criminology class, she understood "life without parole" to mean that an individual must serve at least twenty years in prison, but "there is still an option of parole ... after that time." Nonetheless, when asked whether she would follow the judge's instructions and statement about the meaning of a sentence of life without parole, even if those instructions conflicted with her studies, juror 8 stated that she "would follow the judge." Mr. Maestas argues that juror 8's response was a dishonest answer requiring a new trial. We disagree.

1107 Juror 8's answer that she could set aside her understanding of the meaning of "life without parole" and follow the judge's instructions was not objectively dishonest because it called for a prediction of a future event. Moreover, Mr. Maestas has not proffered any evidence that juror 8 intended to, or actually did, disregard the judge's instructions in voting for the death penalty. Indeed, the State proffered an affidavit from juror 8 in which she stated that, after the judge instructed the jury to follow Instruction No. 12, "the jurors agreed to follow [his] instruction, and the discussion [about the meaning of life without parole] moved on to a different topic." For the foregoing reasons, we conclude that juror 8's answer during voir dire was not objectively dishonest and therefore fails under the first McDonough prong.

1108 Second, juror 18 was asked in her court questionnaire whether anyone in her family had ever been "charged with a crime" and, if so, "what crime and what was the outcome?" The questionnaire gave one line of writing space to identify the "crime" and two lines to describe the "outcome." Juror 18 answered that her son had been arrested and charged with "passing a check that didn't belong to him" and was on probation. In responding to a separate question, juror 18 indicated that her son had also been charged with "busting in [her] door." Further, juror 18 stated that she thought that courts are too "soft" on eriminals but that she did not have strong or negative feelings toward the legal system.

1109 After sentencing, juror interviews indicated that, during deliberations, juror 18 had told the other jurors that her son had "a substantial juvenile history with over 65 felonies before he reached the age of 18 and that nothing had happened to him as far as meaningful punishment by the court." Based on this information, Mr. Maestas argues that juror 18 provided dishonest answers during voir dire when she failed to document the extent of her son's juvenile history and answered that she did not have strong feelings about the criminal justice system. 119 We disagree.

1110 Juror 18's responses regarding her feelings toward the criminal justice system do not qualify as objectively dishonest. As an initial matter, juror 18's statement during deliberations is likely barred from our consideration by rule 606(b) of the Utah Rules of Evidence. 120 But even assuming that we can *928 consider the comment, nothing demonstrates that juror 18 provided objectively dishonest answers during voir dire. Indeed, her feelings about her son's punishment do not nee-essarily implicate her feelings toward the entire legal system. Further, in her questionnaire, juror 18 answered that she felt courts were too "soft" on those charged with a crime, and defense counsel did not follow up on this response.

4 111 In addition, juror 18's failure to disclose the extent of her son's juvenile history was not objectively dishonest because the questionnaire's inquiries were ambiguous. Specifically, the questionnaire asked whether a family member was "ever charged with a crime?" and provided only one line of writing space for the answer. (Emphasis added.) A reasonable interpretation is that a lengthy list of criminal charges was not required. Juror 18's response therefore cannot be said to have been objectively dishonest in light of the ambiguous nature of the question.

112 For the foregoing reasons, we conclude that Mr. Maestas has not satisfied the first prong of the McDonough test because neither juror's answers were objectively dishonest.

2. Because the Two Jurors' Statements Did Not Contain Extraneous Prejudicial Information, We May Not Consider Them Under Rule 606(b)

{113 Next, we analyze whether the jury was exposed to and considered extraneous prejudicial information during its deliberations. We recognize that "[the requirement that a jury's verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury." 121 Yet our system imposes rules to "insulate[ ] the deliberations of the jury from subsequent second-guessing by the judiciary." 122 One such safeguard is rule 606(b) of the Utah Rules of Evidence, which bars the consideration of testimony regarding jury deliberations. 123 Although this rule "denies the court access to what may be relevant information ... that might, for example, justify a motion for a new trial," it also ensures that "jurors [may] express themselves candidly and vigorously as they discuss the evidence presented in court." 124

1114 But rule 606(b) has an exception that allows a juror to testify on the question of "whether ... extraneous prejudicial information was improperly brought to the jury's attention." 125 Typically, extraneous prejudicial information "cover[s] misconduct such as jurors reading news reports about the case, jurors communicating with third parties, bribes, and jury tampering." 126 It includes the jury's consideration of evi-denee not admitted in court, 127 and instances where a juror "conduct[ed] his own investigation and [brought] the results into the jury room." 128 But extraneous prejudicial information does not include "evidence of discussions among jurors" 129 or instances where "a juror ... brings his personal experiences to bear on the matter at hand." 130 In light of *929 these principles, we consider whether the statements of jurors 8 and 18 qualify as extraneous prejudicial information and therefore fall within the exception to rule 606(b).

1115 First, Mr. Maestas contends that juror 8's assertion that individuals sentenced to life without parole could nevertheless be paroled constitutes extraneous prejudicial information. And he claims that he was prejudiced by this statement. We disagree. The question of whether jury discussions of parole eligibility constitute extraneous information is an issue of first impression in our state. Other jurisdictions, however, have examined this issue and reached various results. 131 But because we conclude that Mr. Maestas has not demonstrated that this statement affected the jury's decision, we need not decide whether it constituted extraneous information. Instead, for the following reasons, we hold that juror 8's comment did not contain extraneous prejudicial information and therefore does not fall within the exception to rule 606(b)'s general bar.

{116 Juror 8s comment was not prejfudi-cial to Mr. Maestas because the evidence shows that the jury was already confused about the meaning of life without parole before juror 8 made her comment. And after juror 8s statement about her understanding of life without parole, the jury submitted the LWOP Note to the judge. When the jury was instructed to reread Instruction No. 12, it is uncontested that "the question was answered, the jurors agreed to follow the instruction, and the discussion moved on to a different topic." Accordingly, there is no evidence that juror 8's statement about her understanding of life without parole influenced the jury's decision or prejudiced Mr. Maestas.

1117 Second, Mr. Maestas contends that juror 18's statements during jury deliberations regarding her son's juvenile history and her feelings about his punishment constitute extraneous prejudicial information. We disagree. Neither a juror's personal experiences nor her feelings or beliefs constitute extraneous prejudicial information' 132 Because juror 18's statements reflected only her personal feelings and experiences about her son's punishment, "those representations emanate[d] from inside the jury" and cannot be considered extraneous. 133 Accordingly, *930 testimony regarding these statements is barred by rule 606(b).

118 In sum, we reject each of Mr. Maes-tas's five challenges concerning the selection of the jury, the judge's communications with the jury, and the jury's deliberations. Accordingly, we decline to grant him a new trial on these bases.

IL GUILT PHASE

119 Mr. Maestas next raises four arguments regarding the guilt phase of his trial. Specifically, he asserts that he is entitled to a new guilt phase because (A) the court erred in admitting expert testimony about the Y-STR DNA analysis and fingerprint testing, (B) the court erred in allowing certain portions of the medical examiner's testimony, (C) the prosecution made three improper comments that tainted the fairness of the proceeding, and (D) there was insufficient evidence to support his convictions for the aggravated murder of Ms. Bott and the aggravated burglary of Ms. Chamberlain's home. We reject each of these claims.

A. The Court Did Not Err in Admitting the Expert Testimony Regarding Y-STR DNA and Fingerprint Evidence

1120 Mr. Maestas asserts that the trial court erred when it admitted scientific and expert testimony regarding the Y-STR DNA results and the fingerprint testing because such evidence is unreliable and unduly prejudicial. We disagree.

1121 The admission of scientific evidence and expert testimony is governed by rules 702 and 403 of the Utah Rules of Evidence. 134 Rule 702(b) provides that scientific knowledge may serve as the basis for expert testimony if "there is a threshold showing that the principles or methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (8) have been reliably applied to the facts of the case." 135 This threshold showing "is satisfied if the underlying principles or methods, including the sufficiency of facts or data and the manner of their application to the facts of the case, are generally accepted by the relevant expert community." 136 Even if the evidence and testimony satisfy the threshold showing, the court must determine that the testimony is more probative than prejudicial, as required by rule 408. 137

1122 We review a trial court's decision to admit expert testimony for an abuse of discretion and find error only if no reasonable person would take the view the trial court adopted." 138 Thus, our task is not to determine whether the particular type of scientific evidence should always be admitted, or whether the particular scientific analysis represents the best possible test. Instead, we must decide whether the trial court made a permissible choice in exercising its discretion to admit the scientific evidence in this case. With this standard in mind, we address Mr. Maestas's arguments that the trial court erred in admitting the expert testimony regarding (1) the Y-STR DNA analysis and (2) the fingerprint testing.

1. The Y-STR DNA Expert Testimony Satisfied the Requirements of Rule 702(b) and Rule 403

1123 Before addressing Mr. Maestas's claims concerning the admission of the Y- *931 STR DNA evidence, we provide a brief overview of the trial court's decision to admit the expert testimony and how the expert testimony was used at trial. Prior to trial, the court conducted an evidentiary hearing to determine whether the Y-STR DNA analysis satisfied the requirements of rule 702(b). At that hearing, the court heard testimony from Dr. Todd Wrigley, a forensic scientist employed by Sorenson Forensics. In addition to describing his own credentials, Dr. Wrigley testified that Sorenson Forensics was a private institution accredited by Forensic Quality Services, Inc., and was soon to be accredited by the American Society of Crime Laboratory Directors International Program.

1124 At the evidentiary hearing and at trial, Dr. Wrigley testified that the Y-STR DNA analysis uses the same process and technology to extract, amplify, and identify DNA that is generally employed with polymerase chain reaction (PCR) STR DNA tests. But instead of focusing on all the chromosomes in a person's DNA, as in PCR STR testing, the Y-STR analysis focuses specifically on the Y-chromosome, found only in males and inherited through the male's paternal lineage. Dr. Wrigley testified that because all males in the same paternal lineage have the same forensic markers, called alleles, on their Y-chromosomes, the Y-STR analysis indicates whether an individual and all of his paternal relatives can be excluded as possible contributors as the source of a DNA sample. He stated that, although the analysis may not be able to affirmatively identify an individual as the source of the DNA, Y-STR analysis is "a very strong tool for exeluding an individual." Dr. Wrigley testified that a Y-STR analysis is especially helpful when the DNA sample is mixed with female DNA or when there are multiple male suspects. And he explained that the State selected the Y-STR test in this case because the State assumed that Ms. Bott fought her attacker and that they were looking for a male suspect.

1125 Dr. Wrigley also explained the Y-STR analysis process. He stated that, during the short tandem repeat process, analysts look for alleles on the Y-chromosome. The Y-STR analysis generates a graphic representation of the presence of an allele and the amount of relative fluorescence units (RFUs) that the allele generates. Dr. Wrigley testified that Sorenson Forensics's practice is to find a viable marker for any allele with an RFU of 75 or above, and to compare that allele with the unknown source sample (in this case, the DNA found under Ms. Bott's fingernails-"fingernail serapings") to determine if the two samples contain the same allele, When the same allele is present in both samples, the individual cannot be excluded as a possible contributor of the DNA. Dr. Wrigley explained that the statistical significance of such a match is determined by comparing the allele to a database of 3,561 sample Y-chromosomes.

1126 Regarding the Y-STR analysis in this case, Dr. Wrigley stated that the DNA from Ms. Bott's fingernail serapings was not consistent with DNA from Mr. Irish or Mr. Renzo. Thus, both men could be exeluded as the source of the DNA. But Dr. Wrigley testified that the DNA from Ms. Bott's fingernail serapings contained an allele that was consistent with, or that "matched," the DNA from Mr. Maestas. Dr. Wrigley clarified to the jury that the term "match" meant that neither Mr. Maestas nor his paternal relatives could be excluded as the source of the DNA. Then, for statistical purposes, Dr. Wrigley outlined the "random match probability" that someone within the sample database of 8,561 DNA profiles would have the same allele as the DNA from Ms. Bott's fingernail serapings. He explained that the probability that a profile from the database would have the same allele as the DNA from Ms. Bott's fingernail serapings was 1 in 746 for the DNA taken from her left hand and 1 in 1,203 for the DNA taken from her right hand.

1127 After the evidentiary hearing, the court took judicial notice of the reliability of a Y-STR analysis and determined that the analysis was reliably applied to the facts in this case because Sorenson Forensics was qualified to conduct the testing. According ly, the court concluded that the DNA test met the threshold requirements of rule 702(b) and could therefore be presented to the jury. >

*932 [ 128 In closing argument during the trial, defense counsel reiterated that the Y-STR DNA analysis was a tool of exclusion and was not conclusive as to whether a specific individual committed the crime. Defense counsel also explained that, while the analysis failed to exclude Mr. Maestas and all of his paternal relatives as the source of the DNA from Ms. Bott's fingernail serapings, it did not positively identify him. But in its closing, the prosecution told the jury that the DNA "matches the defendant."

(129 On appeal, Mr. Maestas argues that the court abused its discretion in admitting the evidence and expert testimony about the Y-STR DNA testing because (a) the Y-STR analysis did not satisfy the requirements of rule 702(b), and (b) the evidence was more prejudicial than probative, in violation of rule 403. We disagree.

a. The Y-STR DNA Expert Testimony Satisfied the Threshold Requirements of Rule 702(b)

£130 Mr. Maestas claims that the trial court erred in concluding that the Y-STR DNA expert testimony satisfied the requirements of rule 702(b). First, he argues that Y-STR analysis is not generally accepted in the scientific community and that the court therefore erred when it took judicial notice of the inherent reliability of the Y-STR analysis. Second, he asserts that Sorenson Foren-siecs was not qualified to perform the testing and that its minimum threshold of 75 RFUs was inadequate. Accordingly, he claims that the court erred when it concluded that the analysis was reliably applied in this case. We reject these arguments.

1131 First, we conclude that the court did not abuse its discretion when it took judicial notice of the inherent reliability of the Y-STR DNA analysis. A "court may take judicial notice of the inherent reliability of the scientific principles and techniques at issue if they have been generally accepted by the relevant scientific community." 139 In determining whether a scientific technique has been accepted by the relevant scientific community, a court may look to the law from its own jurisdiction and from other jurisdictions. 140

1132 In this jurisdiction, we have previously stated that analyses serving to exclude particular individuals can be inherently reliable. 141 Further, in State v. Butterfield, we concluded that the STR method of DNA testing is inherently reliable such that judicial notice is appropriate. 142 In taking judicial notice of the inherent reliability of the Y-STR DNA analysis, the trial court noted that Dr. Wrigley stated that the testing uses the same process and techniques as those generally employed in a PCR STR analysis. Indeed, Dr. Wrigley explained that Y-STR DNA testing is simply a specialized form of STR testing specific to the Y-chromosome.

1133 In addition, the trial court emphasized that STR DNA testing has been accepted by the relevant scientific community and other jurisdictions have treated Y-STR DNA testing as "merely a type of STR DNA testing." 143 Further, although not cited by the trial court," 144 we note that Y-STR testing has *933 been recognized in scientific and forensic journals as a reliable method for excluding individuals as the source of the unknown DNA 145 and that many other jurisdictions have upheld the introduction of Y-STR DNA for exclusionary purposes. 146 Because Y-STR testing is a particularized form of STR testing, which we have concluded is reliable, and because scientific journals and other jurisdictions have found the testing to be reliable for exclusionary purposes, the trial court did not abuse its discretion in taking judicial notice of the reliability of the Y-STR DNA testing.

1134 Second, we conclude that the court did not abuse its discretion in determining that Sorenson Forensics was qualified to perform the analysis and that its minimum threshold of 75 RFUs was adequate. As an initial matter, we note that, in determining whether laboratories are qualified to perform certain testing, courts examine whether the laboratory's testing methods are consistent with those that are scientifically acceptable. 147 Thus, laboratories do not need to have a specific accreditation in order for their tests to be reliable under rule 702(b). 148 Nonetheless, the trial court heard testimony that Sorenson Forensics was accredited by one institution and soon to be accredited by another. And Dr. Wrigley testified about his own education and significant experience performing DNA analyses. 149 Based on this testimony, we cannot say that no reasonable person would have reached the trial court's conclusion that Sorenson Forensics was qualified to perform the Y-STR DNA analysis.

1135 Regarding the minimum threshold of 75 RFUs, other courts have admitted DNA analyses that have used RFU thresholds at or below 755 150 In addition, other sources endorse the use of a minimum threshold of 50 RFUs for exelusionary purposes. 151 Based on this evidence, a reasonable person could find that the 75 RFU minimum threshold is sufficient to exclude an individual as the source of the DNA. 152

*934 {186 Thus, the court did not abuse its discretion in determining that the Y-STR DNA testing was reliable, Sorenson Forensics was qualified to perform the analysis, and its minimum threshold of 75 RFUs was adequate. Accordingly, we conclude that the trial court did not abuse its discretion when it determined that this evidence satisfied the threshold showing required by rule 702.

b. The Y-STR DNA Expert Testimony Satisfied the Requirements of Rule 403

1137 Mr. Maestas claims that the trial court abused its discretion when it admitted the Y-STR DNA expert testimony because the testimony was significantly more prejudicial than probative, in violation of rule 403. Specifically, he asserts that, because the prosecution stated that the DNA "matched" Mr. Maestas, the jury was unduly impressed with the evidence. We disagree.

€138 Rule 408 provides that "[the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... misleading the jury." 153 Evidence is unfairly prejudicial "[oJnly when [it] poses a danger of rous[ing] the jury to overmastering hostility." 154 "The critical question is whether ... testimony is so prejudicial that the jury will be unable to fairly weigh the evidence." 155

1 189 In this case, we conclude that the Y-STR DNA evidence was not unduly prejudicial because it was likely that the jury was able to fairly weigh the evidence. As mentioned above, Dr. Wrigley repeatedly explained that the Y-STR analysis was a tool for excluding individuals as the source of the DNA from Ms. Bott's fingernail scrapings. And he consistently stated that the Y-STR DNA test results showed that Mr. Irish and Mr. Renzo could be excluded as the source of the DNA, but that Mr. Maestas and his paternal relatives could not. Although the prosecution and Dr. Wrigley occasionally spoke in terms of the DNA "matching" Mr. Maestas, Dr. Wrigley clarified that a "match" meant that the DNA profiles had the same allele, such that the individual could not be excluded. Because Dr. Wrigley consistently presented the analysis as a tool for exclusion, and clarified that "match" meant only that the individual could not be excluded, the jury would have been able to fairly weigh his testimony. Thus, the Y-STR DNA evidence was not unfairly prejudicial and did not violate rule 408.

140 For the foregoing reasons, we conclude that the Y-STR DNA expert testimony satisfied the requirements of rule 702(b) and rule 408.

2. The Trial Court Did Not Abuse Its Discretion in Admitting the Expert Testimony Regarding Fingerprint Identification Evidence and No Separate Cautionary Jury Instruction Was Warranted

1 141 Mr. Maestas next argues that fingerprint identification evidence is not reliable, and accordingly, that the trial court abused its discretion when it admitted the expert testimony about such evidence. In the alternative, he asserts that even if fingerprint evidence is deemed to be reliable, the trial court erred when it failed to give the jury a separate cautionary instruction regarding the reliability of that evidence. We are not persuaded by either of Mr. Maestas's arguments.

a. The Trial Court Did Not Abuse Its Discretion in Admitting the Expert Testimony Regarding Fingerprint Identification Evidence

$142 As we previously noted, an expert may testify about scientific methods *935 that meet a "threshold showing that the principles or methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (8) have been reliably applied to the facts of the case." 156 This threshold showing is made when the knowledge or principles "are generally accepted by the relevant expert community." 157 A court may look to the law from its own jurisdiction and from other jurisdictions to determine whether a technique has been accepted by the relevant expert community. 158 And in this case, both Utah case law and decisions from other jurisdictions indicate that fingerprint identification evidence has been widely accepted. 159

{143 Nonetheless, Mr. Maestas argues that fingerprint identification evidence is not generally accepted in the scientific community. Accordingly, in his motion to the trial court and in his brief on appeal, Mr. Maestas cites two articles criticizing fingerprint identification evidence. 160 Although courts have considered such research, we do not find any case in which a court has relied on such academic articles to conclude that fingerprint evidence is unreliable or not generally accepted. 161 Indeed, the author of one of the articles that Mr. Maestas cites acknowledges that, although a number of defense attorneys have filed motions contesting the admissibility of fingerprint identification evidence, "thus far, there is no reported decision granting such a motion." 162

{144 Further, at the pretrial hearing to consider Mr. Maestas's motion regarding the admissibility of the fingerprint evidence, defense counsel did not argue that fingerprint identification evidence is inherently unreliable or that fingerprint identification methods had been unreliably applied in Mr. Maestas's case. Instead, defense counsel conceded that the Utah Court of Appeals' opinion in State v. Quintana, 163 which held that fingerprint evidence was inherently reliable, governed the situation. Defense counsel did not challenge the holding in Quintana or its applicability to Mr. Maestas's case. Indeed, after defense counsel acknowledged that State v. Quintana governed the issue, the court asked defense counsel, "Do you think there is anything at issue in this case that this [clourt would be free to deviate from or not follow Quintana in any way? Is there any room in this case with these facts that makes Quinta-ma inapplicable to this one?" Defense counsel responded, "I think if Quintana is viewed *936 as controlling law, then Quintana is viewed as controlling law. I think there is a good-faith basis to challenge that ruling in Quinta-na at a later date, but I don't know that this is the matter where we want to do that." Without asking the court to rule on the applicability of Quintana or the inherent reliability of fingerprint evidence, counsel stated that if the court planned to consider only whether fingerprint identification methods had been reliably applied to the facts to Mr. Maestas's case, they were "prepared to relent on [the] request for a ... hearing on the fingerprint issue and just save it for cross examination at the time of trial." 164

1145 In response, the State said that it "was prepared to put on a witness today to satisfy both prongs of the objections in this case." But after defense counsel reported that they would "relent on [the] request for a ... hearing" regarding the reliability of fingerprint evidence, the State asked that its witness be excused. It also asked that the record reflect that "should Quintana have been found to not be applicable to this case, [it] would have put on testimony that fingerprint evidence is unique, that it is inherently reliable, separate and apart from the fact that there is an appellate decision on that point."

1146 Defense counsel did not object or request that the State put forth evidence establishing the reliability of the fingerprint evidence. Nor did defense counsel assert that they were prepared to offer expert testimony to address the questions of whether fingerprint identification evidence is inherently reliable or whether the methods had been reliably applied to the facts of the case. Indeed, defense counsel did not request further discussion on the admissibility of the fingerprint identification evidence at the pretrial hearing, nor did they request an additional hearing on the matter. Further, defense counsel did not present expert testimony, either at the hearing or at trial, asserting either that fingerprint evidence is generally unreliable or that fingerprint identification methods were not properly applied in this case. Morever, defense counsel did not move to strike the expert testimony presented by the State at trial.

{147 Under these circumstances, we cannot say that no reasonable person would have taken the position adopted by the trial court. 165 Accordingly, we reject Mr. Maes-tas's argument that the trial court abused its discretion in admitting the fingerprint identification evidence.

b. A Separate Cautionary Jury Instruction Was Not Warranted

1148 Having determined that the trial court did not abuse its discretion in permitting the fingerprint identification evidence, we are not persuaded that a separate cautionary jury instruction about the reliability of fingerprint evidence was warranted. We have previously stated that "fingerprint evidence is not entitled to special treatment" and therefore does not require a special cautionary instruction. 166 Further, although we review a court's ruling on a proposed jury instruction for correctness, 167 we look at the jury instructions "in their entirety and will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case." 168 Thus, a trial court does not err by refusing a proposed instruction "if the *937 point is properly covered in other instrue-tions." 169

{149 Here, Mr. Maestas requested that the jury be told that "there is no ... basis to believe that fingerprint examiners are infallible" and that "there are no national standards to ensure the proficiency or skill of fingerprint examiners." The trial court denied the request, stating that the information in Mr. Maestas's proposed instruction had been incorporated in the general expert witness instruction. We agree. The expert instruction explained that the jury should "look at [the expert's] qualifications, the reasoning process the experts used, and the overall credibility of their testimony." The instruction further stated that "(experts can testify about facts, and they can give their opinions in their area of expertise," but the jury is free to accept or reject the expert's opinion. This instruction was sufficient to guide the jury in its evaluation of the fingerprint expert's testimony. Thus, Mr. Maes-tas's cautionary instruction was unnecessary.

{150 For the foregoing reasons, we conclude that the trial court did not err in admitting the fingerprint evidence or in failing to give a cautionary instruction about the reliability of such evidence.

B. The Trial Court Did Not Err in Admitting the Medical Examiner's Testimony

1151 Next, Mr. Maestas argues that the trial court abused its discretion when it admitted the medical examiner's testimony that Ms. Bott's injuries were "purposefully inflict, ed" and that they would have been painful. Before addressing his claims, we provide a brief overview of the medical examiner's testimony.

{ 152 During trial, Dr. Grey explained that, in his role as a medical examiner, he determines whether an individual's death was natural, a suicide, an accident, or a homicide. He testified that the medical determination of homicide is different than the criminal determination because, under the medical definition, a homicide means that "the death resulted from the intentional action of another person." 170 Dr. Grey then described Ms. Bott's injuries. Specifically, he testified about the numerous and extensive bruises and abrasions on Ms. Bott's body, including her chest area, shoulders, abdomen, face, knees, and hips. He described a laceration through Ms. Bott's lower lip where her teeth were forced through her skin; a one-inch-wide, three-inch-deep stab wound on her face; and bruises consistent with strangulation. Regarding her internal injuries, Dr. Grey testified about the severe tearing around Ms. Bott's heart and a tear in her aorta.

1 153 When the prosecution asked whether the injuries appeared to be "purposefully inflicted," Dr. Grey stated that they did. He explained that, based on the nature, extent, and types of injuries Ms. Bott suffered, her death would not be consistent with someone "tripping and falling." Instead, Dr. Grey concluded that Ms. Bott's death was a homicide, meaning her death was caused by an intentional act of another person. The prosecution also asked Dr. Grey whether the injuries Ms. Bott experienced would have been painful. In response, Dr. Grey explained that he believed that incurring the injuries would have been "a very painful, uncomfortable process" as long as the victim was conscious. On eross-examination, Dr. Grey clarified that he was not a pain specialist and that his speculation that the injuries would be painful was not based on his professional medical opinion.

1 154 On appeal, Mr. Maestas asserts that the trial court committed a prejudicial error in admitting certain portions of the medical examiner's testimony. First, he asserts that the medical examiner's testimony that the injuries were "purposefully inflicted" violated rule 704 of the Utah Rules of Evidence because it improperly addressed Mr. Maestas's mental state. Second, he contends that the *938 testimony about the injuries causing pain to a conscious victim violated rules 702 and 403 because it was not helpful to the jury and was unduly prejudicial. We note that the decision to admit expert testimony is reviewed under an abuse of discretion standard. 171 An appellate court can find abuse only if "no reasonable [person] would take the view adopted by the trial court." 172 With this standard in mind, we reject both of Mr. Maestas's arguments.

1155 First, we conclude that the medical examiner's testimony did not violate rule 704. Rule 704 states that an expert witness may not "state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged ... [because] these matters are for the trier of fact alone." 173 But in this case, Dr. Grey's testimony did not address Mr. Maestas's mental state. Dr. Grey never indicated that Mr. Maestas had knowingly or intentionally caused Ms. Bott's death. In fact, at the beginning of his testimony, Dr. Grey explained that his medical determination of homicide is "very distinct" from the criminal determination of whether an individual intended to cause death. And his statement that Ms. Bott's injuries appeared to be "purposefully inflicted" was in the context of his medical determination that Ms. Bott's death was a homicide, rather than an accident, a suicide, or a natural death. Because Dr. Grey explained his role in making the medical determination of homicide, and because his answer about the injuries being "purposefully inflicted" was in the context of that medical determination, Dr. Grey's testimony did not address Mr. Maestas's mental state while committing the crime. Thus, his testimony did not violate rule 704. 174

1156 Second, even if the medical examiner's testimony was not helpful to the jury, it was not prejudicial. Rule 702(a) permits expert testimony if it "will help the trier of fact to understand the evidence or to determine a fact in issue." 175 Under rule 702, "the question that must be posed prior to the admission of any expert evidence is whether, on balance, the evidence will be helpful to the finder of fact." 176 If a trial court determines that the evidence will be helpful, that potential helpfulness must be balanced against its potential for unfair prejudice, 177

{157 In this case, it may not have been helpful for Dr. Grey to state that the type of injuries Ms. Bott experienced could cause pain in a conscious victim. But we cannot say that the testimony was unduly prejudicial. The idea that a stab wound, strangulation, and blunt force trauma could cause pain was well within the knowledge of the average individual. Having been provided the details about the manner and number of injuries to Ms. Bott's body, the jury could have readily inferred on its own that Ms. Bott's injuries would have been painful to a conscious victim. Coupled with Dr. Grey's testimony that his prediction of pain was not based on his medical expertise, it is unlikely that the jury would have given Dr. Grey's statement significant weight. We therefore conclude that any error was not prejudicial and that the trial court did not abuse its discretion in admitting the medical examiner's testimony.

C. The Prosecution Did Not Engage in Misconduct

[158 Next, Mr. Maestas claims that he is entitled to a new guilt phase because the *939 prosecution made three comments that tainted the fairness of the proceeding. Because he failed to make contemporaneous objections to the prosecution's allegedly improper comments, we review these claims for plain or manifest error, meaning an error that is both harmful and obvious. 178

T159 As an initial matter, we note that the prosecution's remarks constitute misconduct meriting reversal if they "call to the attention of the jurors matters they would not be justified in considering in determining their verdict and ... the error is substantial and prejudicial such that there is a reasonable likelihood that in its absence, there would have been a more favorable result for the defendant." 179 In assessing whether allowing the prosecution's comments was a harmful error, "we will consider the comments both in context of the arguments advanced by both sides as well as in context of all the evidence." 180

1 160 With this standard in mind, we address Mr. Maestas's claims that the prosecution committed misconduct (1) by stating in its closing arguments that "defendants usually testify;" (2) by asserting that Mr. Maestas could test the DNA if he disagreed with the Y-STR analysis results; and (8) by implying, without introducing supporting evidence, that defense witnesses were not credible.

1. The Prosecution's Comment that "Defendants Usually Testify" Was Not Harmful

1161 Mr. Maestas claims that, during rebuttal in closing arguments, the prosecution made a prejudicial comment that violated his constitutional right against self-incrimination. Specifically, he points to the following statement by the prosecution:

[The State's case is] a well built bridge. And it is a bridge with DNA, with fingerprint evidence, with the testimony of two co-defendants. And defendants usually testify. This is a case where all of the bolts are in place, where there is no rust. This is a case that is beyond a reasonable doubt, points to the defendant as the killer of Donna Bott.

Mr. Maestas did not object to the closing argument, but on appeal he asserts that the prosecution's statement that "defendants usually testify" constitutes an obvious and prejudicial error. We disagree.

1162 It is well settled that the prosecution's direct reference to a defendant's decision not to testify "is always a violation of the defendant's [Flifth [Amendment right against self-incrimination." 181 "Indirect references to a defendant's failure to testify are [also] constitutionally impermissible if the comments were manifestly intended to be or were of such a character that the jury would naturally and necessarily construe them to be a comment on the defendant's failure to testify." 182 But even assuming that a comment violates a defendant's Fifth Amendment rights, and therefore calls to the attention of the jurors matters they would not be justified in considering, such comments do not necessarily require reversal. 183 Instead, as with any claim of prosecutorial misconduct, "[aln otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." 184 Indeed, we have held that a prosecutor's reference to the defendant's failure to testify constituted harmless error where the prosecutor's comments were "isolated as opposed to extensive," the court specifically instructed the jury that the defendant's choice not to testify did not create an adverse presumption and there was "over *940 whelming evidence" of the defendant's guilt, 185

{163 In this case, we conclude that any error was harmless for the following reasons. As an initial matter, we note that it is unclear whether the prosecution was referring to Mr. Maestas or to his codefendants, Mr. Irish and Mr. Renzo, when the prosecution stated that "defendants usually testify." For example, the State highlights six instances in the prosecution's closing arguments where Mr. Irish and Mr. Renzo were referred to as "defendants." And the prosecution's statement came in rebuttal after defense counsel questioned the motives and credibility of Mr. Irish's and Mr. Renzo's testimonies. Thus, in context, this statement was ambiguous and not likely of such a character that the jury would necessarily construe it to be a comment on Mr. Maestas's failure to testify.

1164 Further, even if the prosecution's comment did refer to Mr. Maestas, the jury was explicitly instructed that it should not consider a defendant's choice not to testify. Specifically, the jury was instructed as follows:

A person accused of a crime may choose whether or not to testify. In this case the defendant chose not to testify. Do not hold that choice against the defendant. Do not try to guess why the defendant chose not to testify. Do not consider it in your deliberations. Decide the case only on the basis of the evidence. The defendant does not have to prove that he is not guilty. The prosecution must prove the defendant's guilt beyond a reasonable doubt.

With this strong instruction, the jury was aware that it should not consider Mr. Maes-tas's decision not to testify as evidence of his guilt.

1165 Finally, the prosecution's statement was not harmful in light of the wealth of evidence implicating Mr. Maestas in Ms. Bott's murder. The jury heard witness testimony that Mr. Maestas punched and stomped on Ms. Bott's body and expert testimony about DNA and fingerprint evidence that linked Mr. Maestas to the scene. Because the jury was given a strong curative instruction and there was overwhelming evidence of Mr. Maestas's guilt, even assuming the prosecution's statement referred to Mr. Maestas, we conclude that any error was harmless beyond a reasonable doubt.

2. The Prosecution's Comment Regarding Mr. Maestas's Ability to Test the DNA Was Not Improper

1166 Mr. Maestas asserts that the prosecution engaged in misconduct when it indicated that he could conduct his own DNA test if he disagreed with the Y-STR DNA results. 186 According to Mr. Maestas, this improperly and prejudicially shifted the burden to him to prove his innocence. We disagree.

1167 In the criminal justice system, a defendant is presumed innocent and the prosecution must prove guilt beyond a reasonable doubt. 187 But it is not improper for the prosecution "to argue the case based on the total picture shown by the evidence or the lack thereof" or to "fully discuss from [its] perspective[ ] the evidence and all inferences and deductions it supports." 188 Thus, in determining whether the prosecution's comments improperly shifted the burden of proof to a defendant, we must assess the comment "in context of the arguments ad *941 vanced by both sides as well as in context of all the evidence." 189

T168 In this case, the prosecution's remark was prompted by Mr. Maestas's claims that the State had specifically chosen an inferior and unreliable DNA analysis. Indeed, during closing argument, defense counsel stated, "Why didn't [the State] do the better DNA testing? Why didn't we have a number like one in 400 quintillion? [What the State gives you in asking you to ... convict [Mr.] Maestas of aggravated murder is one in 746." In response, the prosecution explained that the DNA is available for any "better DNA testing" that Mr. Maestas wished to conduct. Because the prosecution's remark simply countered the defendant's arguments that the State purposely selected an unreliable DNA test, it did not shift the burden of proof to Mr. Maestas and we therefore conclude that the remark was not improper. 190

8. The Prosecution's Insinuation that Certain Prejudicial Information Existed Was Not Harmful

1169 Mr. Maestas claims that the prosecution engaged in misconduct while questioning two defense witnesses on cross-examination. Specifically, he claims that the prosecution "insinuated that additional evidence existed that undermined [two of the defense] witness[es]' testimon[ies], but did not present [any supporting] evidence to the jury." 191 He argues that these comments improperly suggested to the jury that the defense witnesses were untrustworthy. But we conclude that the trial court did not commit a reversible error by failing to intervene when the prosecution asked the questions that Mr. Maestas now challenges.

§1170 Although counsel is afforded "considerable latitude in making arguments to the jury, 192 we have explained that, "[glenerally, it is error to ask ... a question that implies the existence of a prejudicial fact unless the prosecution can prove the existence of that fact. 193 The prosecution's ability to prove a fact is necessary because, "[oltherwise, the only limit on such a line of questioning would be the prosecutor's imagination." 194 And "[to allow this sort of examination would be to allow the imaginative and overzealous prosecutor to concoct a damaging line of examination which could leave with the jury the impression that [the witness] was anything the question, by innuendo, seemed to suggest." 195 Nonetheless, "the prosecutor does not have to establish a fact before he can ask about it." 196 Indeed, "(ilt is enough that the prosecutor has reason to believe a fact is true and has the ability to establish the fact." 197

1171 But even if the prosecution fails to limit its questioning to the facts that *942 it has the ability to prove, and thereby calls to the jury's attention material that it would not be justified in considering, a defendant must still show that the prosecution's comment was prejudicial 198 'To be prejudicial, there must be a reasonable likelihood that, absent the error, the defendant would have received a more favorable result. 199 And "[when there is strong proof of guilt, the conduct or remark of a prosecutor is not presumed prejudicial." 200

{172 In this case, there is nothing in the record to suggest that the trial court committed an obvious error when it did not intervene during the prosecution's cross-examination of these two defense witnesses. Indeed, there is no indication the prosecution lacked the ability to prove the facts suggested by its questions. Because the questions Mr. Maes-tas challenges dealt with the secondary issue of the witnesses' credibility, and because the defense did not object to these questions at the time, it is understandable that the prosecution did not present evidence regarding the facts to which it alluded.

1173 But even if the prosecution's questions were improper, such that the court committed an obvious error in failing to intervene, Mr. Maestas has not demonstrated that the comments were prejudicial. Because there is strong proof of Mr. Maestas's guilt, we do not presume that the remarks were prejudicial, Thus, Mr. Maestas must demonstrate a reasonable likelihood that he would have received a more favorable outcome if the prosecution had not asked the challenged questions.

1174 He argues that, if the prosecution had not insinuated that the defense witnesses were untrustworthy, the jury may have believed the defense witnesses' testimony indicating that the codefendants stole Mr. Maes-tas's car and framed him for the crimes that they committed, perhaps motivated to act against Mr. Maestas because of his race. But there are several reasons why the jury would not have found this testimony plausible even without any insinuation that the defense witnesses were untrustworthy. The story conflicts with the codefendants' testimony, the expert testimony about DNA and fingerprint evidence that linked Mr. Maestas to the scene of the crime, and Mr. Maestas's statements to the police investigator that he had been driving his car on the night that the crime occurred. Accordingly, Mr. Maestas has failed to demonstrate that he would have received a more favorable outcome if the prosecution had not asked the questions he challenges.

T175 For the foregoing reasons, we reject Mr. Maestas's arguments that the prosecution's comments entitle him to a new guilt phase. 201

D. The State Presented Evidence Sufficient to Support Mr. Maestas's Convictions

[176 Finally, Mr. Maestas argues that the State failed to present sufficient evidence to support his convictions for the aggravated murder of Ms. Bott and the aggravated burglary of Ms. Chamberlain's home.

{ 177 "[In considering an insufficiency-of-evidence claim, we review the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict." 202 And we will not reverse a jury verdict if "we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt." 203 Thus, "[wle reverse a jury verdict only when *943 the evidence, so viewed, is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime for which he or she was con-vieted." 204 With this standard in mind, we conclude that there was sufficient evidence for the jury to find that Mr. Maestas had the intent to cause Ms. Bott's death and that he committed the aggravated burglary of Ms. Chamberlain's home.

1178 First, there is sufficient evidence that Mr. Maestas had the requisite mental state to support his conviction for aggravated murder. Under the aggravated murder statute, the State must prove beyond a reasonable doubt that "the actor intentionally or knowingly cause[d] the death of another" in connection with any of several statutory aggravating factors. 205 A person acts intentionally "when it is his conscious objective or desire to engage in the conduct or cause the result." 206 And he acts knowingly "when he is aware that his conduct is reasonably certain to cause the result." 207

1179 We have recognized that a defendant's mental state can be proven by cir-curstantial evidence, 208 including the nature and extent of the criminal act. 209 When the mental state is proven by cireumstantial evidence, we examine whether the State presented any evidence that the defendant had the requisite intent or knowledge and whether "the inferences that can be drawn from that evidence have a basis in logic and reasonable human experience sufficient to prove that [the defendant] possessed the requisite intent." 210

180 In this case, the evidence is sufficient to indicate that Mr. Maestas intentionally or knowingly caused Ms. Bott's death. The State presented the testimony of Mr. Irish and Mr. Renzo, who stated that they had observed Mr. Maestas punch and stomp on Ms. Bott's body. In addition, the jury heard the testimony of the medical examiner, who described Ms. Bott's numerous injuries-including a stab wound to her face; extensive bruises and abrasions on her chest, shoulders, abdomen, face, knees, and hips; injuries consistent with strangulation; several broken ribs; tearing around her heart; and a tear in her aorta. Given the witness testimony, the nature and multiple types of injuries, and the age of the victim, the jury could have reasonably inferred that Mr. Maestas's "conscious objective" was to cause Ms. Bott's death or that he was "reasonably certain" that his conduct would cause her death. Accordingly, we reject his claim that there was insufficient evidence to show that he acted with the requisite intent or knowledge.

1181 Second, there is sufficient evidence that Mr. Maestas committed the aggravated burglary of Ms. Chamberlain's home. Under the aggravated burglary statute, the State must prove beyond a reasonable doubt that the actor committed burglary in connection with one of several aggravating factors. 211 "An actor is guilty of burglary who enters or remains unlawfully in a building ... with intent to commit ... a felony; ... theft; ... [or] an assault on any person.... 212 And the relevant aggravating factor that raises the offense to aggravated burglary occurs when, during the course of a burglary, "the actor ... causes bodily injury *944 to any person who is not a participant in the crime." 213

1182 In this case, Ms. Chamberlain testified that she saw someone enter her home through the window who then pulled her shirt over her head. She testified that, as the person pulled off her shirt, he seratched her arm causing it to "bleed[ ] really badly." And Mr. Renzo testified that he saw Mr. Maestas hit Ms. Chamberlain two times. 214 According to Ms. Chamberlain, the person attacking her then demanded that she "take off [her] clothes" and tell him where to find her purse. At that point, Ms. Chamberlain was able to push her medical alert button, startling the intruder and causing him to flee from her home with her purse. Although Ms. Chamberlain was not able to identify Mr. Maestas as the perpetrator, Mr. Irish and Mr. Renzo testified that Mr. Maestas committed these acts. In addition, the police discovered Ms. Chamberlain's wallet in Mr. Maestas's car. This evidence is sufficient for a reasonable jury to find that Mr. Maestas committed the aggravated burglary of Ms. Chamberlain's home.

1188 Although he acknowledges this evidence, Mr. Maestas asserts that the court cannot rely on the testimony of Mr. Irish or Mr. Renzo because their statements were self-serving and conflicted with Ms. Chamberlain's testimony. But "[clontradie-tory testimony alone is not sufficient to disturb a jury verdict." 215 Nonetheless, although an appellate "court must ordinarily accept the jury's determination of witness credibility," it may disregard that testimony when it is physically impossible or inherently improbable. 216 "Testimony is physically impossible when what the witness claims happened could not have possibly occurred." 217 And testimony is inherently improbable if it is "incredibly dubious" and "apparently false." 218

1184 Here, we cannot say that Mr. Irish or Mr. Renzo's testimony was physically impossible or inherently improbable. Indeed, a good deal of Mr. Irish's and Mr. Renzo's testimony was consistent with Ms. Chamberlain's. For example, just as Ms. Chamberlain testified, Mr. Renzo testified that Mr. Maestas pulled Ms. Chamberlain's shirt over her head and demanded her purse. In addition, the jury could have found Mr. Renzo and Mr. Irish credible because their version of the night's events was corroborated by the DNA and fingerprint evidence found at Ms. Bott's home and by the fact that Ms. Chamberlain's wallet was found inside Mr. Maes-tas's car. In light of these facts, Mr. Maes-tas has not established that the evidence was so inconclusive or inherently improbable that the jury must have entertained a reasonable doubt that he committed the aggravated burglary of Ms. Chamberlain's home. Accordingly, we conclude that there is sufficient evidence to support Mr. Maestas's convie-tions for the aggravated murder of Ms. Bott and the aggravated burglary of Ms. Chamberlain's home.

1 185 In sum, we reject each of Mr. Maes-tas's four challenges concerning the evidence and arguments presented during the guilt phase of his trial We therefore decline to grant him a new guilt phase on these bases.

III DEATH PENALTY EXEMPTION HEARING

186 Prior to the guilt phase of the trial, Mr. Maestas filed a motion pursuant to Atkins v. Virginia 219 and Utah Code sections Ti-15a~101 to -106 (Exemption Statute), arguing that he was mentally retarded 220 and *945 asking the court to strike the death penalty as a sentencing option. 221 On appeal, he claims that the trial court erred in ruling that he was not mentally retarded. He also challenges the constitutionality of the Exemption Statute.

187 As an initial matter, we note that, in Atkins, the U.S. Supreme Court held that executing mentally retarded individuals constitutes cruel and unusual punishment under the Eighth Amendment "in the light of ... evolving standards of decency." 222 But the Court recognized that "[Injlot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus." 223 Thus, the Court left to the states "the task of developing appropriate ways to enforce th{is] constitutional restriction upon [their] execution of sentences." 224

In accordance with the holding in Atkins, the Utah Legislature enacted the Exemption Statute, 225 which exempts a defendant from being subject to the death penalty if he or she meets the statutory definition of "mentally retarded." 226 Under the Exemption Statute, a defendant qualifies as mentally retarded if

(1) the defendant has significant subaver-age general intellectual functioning that results in and exists concurrently with significant deficiencies in adaptive functioning that exist primarily in the areas of reasoning or impulse control, or in both of these areas; and

(2) the subaverage general intellectual functioning and the significant deficiencies in adaptive functioning under Subsection (1) are both manifested prior to age 22. 227

1189 The Exemption Statute presumes that a defendant is not mentally retarded and places the burden on the defendant to prove by a preponderance of the evidence that he or she meets both prongs of the statutory definition. 228 And the Exemption Statute provides that the court, rather than a jury, determines whether a defendant has met that burden. 229 Thus, to be exempt from the death penalty because of mental retardation, a defendant must prove to the court that he or she has both "significant subaverage general intellectual functioning" (SSGIF) and "significant deficiencies in adaptive functioning" (SDAF) in either reasoning or impulse control. 230

190 Pursuant to Mr. Maestas's request, the trial court held a hearing (Atkins hearing) to determine whether he met the definition of "mentally retarded" under the Exemption Statute. Over the course of three days, the court heard testimony regarding Mr. Maestas's intellectual and adaptive functioning, including testimony from two mental health experts for the defense and one mental health expert for the prosecution. The court concluded that, although Mr. Maestas had demonstrated SDAF in the area of impulse control, he had failed to demonstrate either SDAF in the area of reasoning or SSGIF. The court also concluded that Mr. Maestas had not shown that his intellectual deficits resulted in his adaptive functioning deficits. Thus, the court determined that he did not qualify as mentally retarded under the Exemption Statute.

*946 {1191 On appeal, Mr. Maestas challenges the trial court's conclusion that he did not qualify as not mentally retarded and the constitutionality of the Exemption Statute. In particular, he argues that (A) the trial court erred in concluding that he had not demonstrated SSGIF by a preponderance of the evidence; (B) the trial court incorrectly interpreted the Exemption Statute to require him to demonstrate a causal relationship between his SSGIF and his SDAF, or if such an interpretation is correct, that the requirement is unconstitutional; and (C) the Exemption Statute is unconstitutional because it allows the court, rather than a jury, to determine whether defendants are mentally retarded and because it requires defendants to bear the burden of proof in establishing mental retardation. We reject each of these arguments.

A. The Trial Court Did Not Err in Concluding that Mr. Maestas is Not Mentally Retarded

Mr. Maestas argues that the trial court erred in concluding that he had failed to demonstrate by a preponderance of the evidence that he met the statutory definition of "mentally retarded." As discussed above, the Exemption Statute requires defendants to prove that they have both "significant subaverage general intellectual functioning" and "significant deficiencies in adaptive functioning" in the area of reasoning or impulse control. 231 Because the court determined that Mr. Maestas had shown SDAF in the area of impulse control, he met the requirement for one prong of the Exemption Statute. 232 Thus, the court's conclusion that Mr. Maestas did not qualify as mentally retarded hinges on its determination that he did not adequately demonstrate that he had SSGIF.

1193 Because we must consider the trial court's interpretation of the Exemption Statute, as well as its application to the facts of Mr. Maestas's case, we are faced with a mixed question of fact and law. "[With regard to many mixed questions of fact and law, it is either not possible or not wise for an appellate court to define strictly how a legal concept is to be applied to each new set of facts. 233 Indeed, the trial court's "[dliseretion is broadest-and [our] standard of review is most deferential-when the application of a legal concept is highly fact de-pendant and variable." 234 In this case, the application of the Exemption Statute to an individual defendant is extremely "fact de-pendant and variable" 235 Thus, the trial court is in "the best position to assess the credibility of witnesses and to derive a sense of the proceeding as a whole, something an appellate court cannot hope to garner from a cold record." 236

*947 [ 194 With this standard in mind, we consider whether the trial court erred in concluding that Mr. Maestas failed to establish by a preponderance of the evidence that he had SSGIF. We first address the type of showing a defendant must make to adequately demonstrate the requisite intellectual deficits under the Exemption Statute, and we then evaluate the trial court's conclusion that Mr. Maestas did not adequately demonstrate such a deficit.

1. The Showing Required to Establish Significant Subaverage General Intellectual Functioning Under the Exemption Statute

1195 As an initial matter, we note that, although the Exemption Statute requires defendants to demonstrate "significant subaverage general intellectual functioning" by a preponderance of the evidence, 237 it does not further explain what this requirement entails. Accordingly, we must use our tools of statutory interpretation to determine the meaning of this phrase. "When interpreting a statute, our primary objective is to give effect to the legislature's intent." 238 To discern legislative intent, we "read the text of a statute as a whole and interpret its provisions in harmony with other subsections." 239

1 196 Both the language and the context of the Exemption Statute make it clear that, to be considered mentally retarded, a defendant must have substantial intellectual impairments such that his or her intellectual functioning is significantly below average. Indeed, the Exemption Statute explicitly states that "a defendant is 'mentally retarded" if the defendant has significant subaverage general intellectual functioning that results in and exists concurrently with significant deficien-cles in adaptive functioning that exist primarily in the areas of reasoning or impulse control." 240

{197 Indeed, the purpose of the Exemption Statute is to set Utah's standard for determining whether defendants are mentally impaired to such a degree that it would be unconstitutional to apply the death penalty to them. The U.S. Supreme Court has noted that "[njot all people who claim to be mentally retarded [will bel so impaired as to fall within the range of mentally retarded offenders" 241 exempt from the death penalty, and accordingly, it "le[ft] to the [s]tate{s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences. 242 Thus, under the standard that the Exemption Statute sets for determining whether a defendant's impairments are severe enough to rise to the level of mental retardation, showing below average intellectual functioning is not enough; a defendant must instead demonstrate intellectual functioning that is significantly below average.

1198 In determining whether defendants have demonstrated SSGIF, scores on intelligence quotient (IQ) tests can be one helpful measure. 243 Courts should carefully consider expert testimony regarding the validity and interpretation of IQ tests when evaluating a defendant's IQ scores. 244 Courts should also look to clinical guidelines for assistance in determining whether IQ scores indicate that a defendant's intellectual *948 impairments are substantial enough to qualify as SSGIF under the Exemption Statute.

199 Indeed, in Atkins, the U.S. Supreme Court noted that states' "statutory definitions of mental retardation generally conform to the clinical definitions" of the American Psychiatric Association (APA) and the American Association on Mental Retardation, which is now called the American Association of Intellectual and Developmental Disabilities 245 For instance, under the clinical guidelines of the APA, "[slignificantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean)," taking into account the standard error of measurement for the testing instrument. 246 An IQ score falling in the range constituting mental retardation under the APA guidelines or other generally accepted clinical guidelines is one indication of the deficits required by the Exemption Statute.

1200 But we note that IQ scores are just one factor to be considered in determining if the defendant has SSGIF. The testing instrument or other cireumstances may result in an IQ score that does not truly reflect a defendant's intellectual functioning. 247 Thus, courts should carefully consider other relevant evidence of intellectual impairment. This is particularly true when the defendant's IQ score falls in the range spanning the cusp of clinical mental retardation. 248 Again, expert testimony will be valuable in helping courts determine whether the evidence shows that a defendant has SSGIF. But ultimately, courts are "not bound to accept the testimony of an expert and [are] free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case." 249 It falls to the court to determine if the full body of evidence and testimony show by a preponderance of the evidence that a defendant's intellectual impairments are severe enough to qualify as significantly sub-average.

2. The Trial Court Did Not Err in Conelud-ing that Mr. Maestas Lacked Significant Subaverage General Intellectual Functioning

1201 Having considered the showing required to establish "significant general intellectual functioning" under the Exemption Statute, 250 we next turn to Mr. Maestas's claim that the trial court erred in concluding that he had not adequately demonstrated the required deficits. As discussed above, the application of the Exemption Statute to an individual defendant is very fact specific, and we are accordingly deferential to the trial court's determination. 251 In particular, "[wle review the [trial] court's factual findings for clear error," 252 and "in those instances in *949 which the trial court's findings include inferences drawn from the evidence, we will not take issue with those inferences unless the logic upon which their extrapolation from the evidence is based is so flawed as to render the inference clearly erroneous." 253

202 In determining that Mr. Maestas had not adequately demonstrated SSGIF, the court considered the reports from mental health experts, the testimony of those experts and other witnesses, and the exhibits entered into evidence. Much of the testimony and evidence focused on Mr. Maestas's IQ and background. In regard to Mr. Maestas's IQ, the court heard extensive testimony about the validity of IQ tests in general, the validity of the various IQ tests that had been administered to Mr. Maestas over time, and other research and theories about IQ tests, including how factors like the standard error of measurement 254 and the Flynn effect 255 could affect his IQ seores. Considering the testimony and evidence presented, the court found that Mr. Maestas's actual IQ was likely in the range of seventy-seven to eighty-five, and concluded that his general intellectual functioning was "between borderline and low average" rather than significantly subaver-age. 256

€ 208 In reaching this conclusion, the trial court found that Mr. Maestas's seore of seventy-seven on an IQ test in 2005 "constituted] meaningful evidence suggesting that [Mr. Maestas's] general intellectual functioning is not significantly [sJlubaverage." Indeed, the court accepted the prosecution's expert testimony that, if the test had been administered and seored properly, it would have resulted in an IQ score of at least eighty-five. 257 Further, the court noted that other IQ tests Mr. Maestas took as a youth indicated that his seore was in the eighty to *950 eighty-nine range. 258

1204 Noting that "[the experts agreed that scores from IQ tests are not determinative of a person's intellectual functioning," the court went on to consider other factors to determine whether the severity of Mr. Maestas's intellectual impairments rose to the level of SSGIF. One such factor was that Mr. Maestas had struggled academically and was enrolled in special education classes in school. But the court found that, without more, evidence of his academic difficulties was insufficient to establish the requisite intellectual deficits. 259 Based on the evidence presented, the court found that it was just as likely that Mr. Maestas's academic struggles were the result of "other dominant factors in [his] life," including "traumatic events, extreme poverty, social and emotional deprivation, alcohol and substance abuse," a learning disability, sexual abuse, and domestic violence in his childhood home. Importantly, the court noted that, while Mr. Maes-tas "has been routinely characterized [as] having learning disabilities and intellectual deficits throughout his childhood and adult life, no qualified evaluator, until now, has ever diagnosed him with mental retardation or significant subaverage general intellectual functioning." The court considered this a strong indication that Mr. Maestas's intellectual impairments were not substantial enough to constitute the requisite intellectual deficits. 260

1205 Because there is adequate evidence to support the trial court's factual findings and inferences, we conclude that it did not err in ruling that Mr. Maestas failed to adequately demonstrate that his general intellectual functioning was significantly subaver-age. *951 261 Accordingly, we reject Mr. Maestas's claim of error and uphold the trial court's determination that he did not demonstrate intellectual deficits significant enough to qualify as mentally retarded under the Exemption Statute.

B. We Do Not Consider Whether the Statute Requires a Causal Relationship Between a Defendant's Significantly Subaverage General Intellectual Functioning and His Significant Deficits in Adaptive Functioning

1206 Mr. Maestas challenges the trial court's interpretation of the Exemption Statute's requirement that a defendant show that his "significant subaverage general intellectual functioning ... results in" his "significant deficits in adaptive functioning." 262 He argues that requiring him to demonstrate a causal relationship between his SSGIF and SDAF is unconstitutional under Atkins. But, because we uphold the trial court's finding that Mr. Maestas did not demonstrate SSGIF, the issue of whether he qualifies as mentally retarded under the Exemption Statute is resolved on other grounds, and a favorable ruling for Mr. Maestas on this issue would not result in him being found ineligible for the death penalty. In other words, regardless of whether the Exemption Statute requires that Mr. Maestas's SSGIF result in his SDAF, the ultimate outcome of the Atkins hearing is the same: Mr. Maestas did not qualify as mentally retarded under the Exemption Statute because he did not demonstrate SSGIF. Because Mr. Maestas cannot qualify as mentally retarded without showing the requisite intellectual deficits, regardless of whether the Exemption Statute requires a causal relationship between a defendant's SSGIF and SDAF, it is unnecessary for us to reach this issue. 263

C. We Reject Mr. Maestas's Constitutional Challenges to Utah's Exemption Statute

Y207 Mr. Maestas argues that the Exemption Statute is unconstitutional because (1) it violates the Sixth Amendment by allowing the trial court, rather than a jury, to determine whether a defendant is mentally retarded, and (2) it violates the Eighth Amendment and the Due Process Clause by requiring the defendant to prove by a preponderance of the evidence that he is mentally retarded, rather than placing the burden on the State to prove beyond a reasonable doubt that the defendant is not mentally retarded. 264

1208 Mr. Maestas offers two main arguments in support of his claims. First, he asserts that the holding in Atkins makes the absence of mental retardation an element necessary to impose death and that the State therefore has a duty to prove the absence of *952 mental retardation to a jury beyond a reasonable doubt, as with an element of a crime. 265 Second, he contends that the absence of mental retardation is essentially an aggravating circumstance that exposes defendants to greater punishment than they would otherwise be eligible to receive, and he emphasizes that the State must prove to the jury beyond a reasonable doubt that aggravating cireumstances outweigh mitigating circumstances and that death is the appropriate penalty. 266 On these bases, he contends that the only way to have a "high degree of confidence that [the death] penalty is appropriate" 267 is to have a jury determine whether the State has proven beyond a reasonable doubt that a criminal defendant is not mentally retarded before that defendant can be sentenced to death. Although Mr. Maestas did not preserve these claims, he argues that we may review them for plain or manifest error, meaning that an error must be both obvious and harmful. 268 We conclude that Mr. Maestas has not shown that the trial court committed an obvious error.

$209 "To establish that the error should have been obvious to the trial court, [a defendant] must show that the law governing the error was clear at the time the alleged error was made. 269 In this case, 'Mr. Maestas has not shown an obvious error for three reasons. First, there is no governing law in this jurisdiction and no consensus among other jurisdictions mandating that the State bear the burden of proving the lack of mental retardation to a jury in capital cases. Second, although we recognize that a jury must find that the State has proven beyond a reasonable doubt all functional elements of a crime and, in capital sentencing, that aggravating cireumstances outweigh mitigating cireumstances, 270 Mr. Maestas's arguments that the absence of mental retardation is analogous to an element of a crime or an aggravating cireumstance conflict with the law governing these issues. Third, practical considerations and procedural safeguards support our conclusion that it was not an obvious error for the trial court to apply the challenged provisions of the Exemption Statute.

1210 First, we note that neither we nor the U.S. Supreme Court have directly considered whether the Sixth Amendment requires a jury to determine whether a defendant is mentally retarded for purposes of death penalty eligibility. We have also not considered whether the Eighth Amendment and the Due Process Clause require the State to bear the burden of proving that a defendant is not mentally retarded before the death penalty can be imposed. Thus, there is no governing law in this jurisdiction that would support Mr. Maestas's claim that the trial court committed an obvious error in applying the provisions of the Exemption Statute that he challenges. Further, in other jurisdictions, some courts have ruled that it does not violate a defendant's constitutional rights for a judge to determine whether a defendant is mentally retarded for purposes of death penalty eligibility. 271 Likewise, some courts *953 have concluded that statutes requiring a defendant to prove mental retardation do not violate the defendant's constitutional rights. 272 Thus, there is no consensus among other jurisdictions that the State must bear the burden of proving lack of mental retardation to a jury in a capital case.

{211 Second, Mr. Maestas's arguments that the absence of mental retardation is analogous to an element of a crime or an aggravating factor do not comport with the law governing these issues. The absence of mental retardation is unlike an element of a crime, such as intent, that must be proven to the jury before a defendant can be convicted. Indeed, mental retardation has nothing to do with a defendant's conviction; it relates solely to the sentence that the defendant is eligible to receive.

€ 212 Further, in Atkins, the Court did not define mental retardation as an element that must be proven to a jury; instead, Atkins analogized mental retardation to an affirmative defense. 273 And the Court has not prohibited states from placing the burden of proof regarding affirmative defenses on the defendant. 274 Like an affirmative defense, a defendant's mental retardation serves to relieve or mitigate his criminal punishment. Importantly, a defendant's mental retardation alone "doles] not warrant an exemption from criminal sanctions." 275

1213 Indeed, in Atkins, the Court recognized that "mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes. 276 But their punishment cannot include the death penalty. 277 Because defendants who prove they are mentally retarded may nonetheless be convicted for their criminal conduct, mental retardation is not akin to an element of a crime. Thus, the constitution does not require that the determination of a defendant's mental retardation be made by a jury.

[ 214 Similarly, the absence of mental retardation is not an aggravating cireumstance in capital sentencing. Indeed, in Atkins, the Court stated that, although "[those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes," 278 mental retardation "diminish{es] *954 the[ ] personal culpability" 279 of defendants to the extent that it constitutes excessive punishment to impose the death penalty on persons with this impairment. 280 Thus, mental retardation is more analogous to a mitigating cireumstance-a cireumstance so mitigating that the Court has determined that its presence makes the imposition of the death penalty unconstitutionally excessive.

[ 215 Indeed, when a defendant is conviet-ed of a crime that provides for the death penalty as a possible sentence, "an increase in a defendant's sentence is not predicated on the outcome of the mental retardation determination; only a decrease." 281 Because mental retardation serves only to decrease a defendant's sentence, the absence of mental retardation is not an aggravating cireum-stance. Thus, the constitution does not require that a jury determine whether a defendant is mentally retarded, nor does it require that the prosecution bear the burden of proof.

1 216 Third, we note that practical considerations and procedural protections support our conclusion that it was not an obvious error for the trial court to take the role of determining whether Mr. Maestas was mentally retarded and to have Mr. Maestas bear the burden of proof on this matter. The court is well equipped by experience and training to evaluate and weigh complex evidence and expert testimony about a defendant's mental functioning. And although "[the difficulties a mentally retarded person may have in testifying, communicating, and expressing remorse may negatively influence the jury," 282 the court is less likely to be negatively influenced by the presentation of the evidence. Additionally, it was appropriate to place the burden of proof on Mr. Maestas because the evidence of mental retardation was largely within Mr. Maestas's possession and control.

1217 Further, Utah's death penalty scheme has other procedural safeguards to ensure that there is a high degree of confidence that the death penalty is appropriate. Indeed, even though the court determined whether Mr. Maestas qualified as mentally retarded under the Exemption Statute, the State was required to prove to the jury that the aggravating cireumstances outweighed the mitigating circumstances beyond a reasonable doubt and that death was the appropriate penalty. 283 Thus, the jury was the ultimate finder of fact in imposing the death penalty. Further, even though the court concluded that Mr. Maestas was not mentally retarded, Mr. Maestas still had the option of presenting evidence of any mental deficiency as a mitigating circumstance during sentencing, and had he elected to do so, the State would have had to persuade the jury that, even considering such evidence, the totality of the aggravating circumstances outweighed the totality of the mitigating cireumstances such that death was the appropriate penalty. Because of these procedural safeguards, the *955 challenged provisions of the Exemption Statute do not preclude a "high degree of confidence that [the death] penalty is appropriate, 284 and accordingly, the trial court did not commit an obvious error in applying these provisions.

1 218 In sum, because Mr. Maestas failed to prove by a preponderance of the evidence that he had the requisite intellectual deficits, we uphold the trial court's conclusion that he did not qualify as mentally retarded under the Exemption Statute. And, because we uphold the court's finding that Mr. Maestas lacked significant subaverage general intellectual functioning, it is unnecessary for us to consider whether the Exemption Statute requires that a defendant's intellectual deficits have a causal relationship to his deficits in adaptive functioning. Finally, we conclude that the trial court did not commit an obvious error in applying the provisions of the Exemption Statute that allow the court to determine whether a defendant is mentally retarded and require the defendant to bear the burden of proof regarding mental retardation.

IV. PENALTY PHASE

{219 The Utah Code provides that "[when a defendant has pled guilty to or been found guilty of a capital felony, there shall be further proceedings before the court or jury on the issue of sentence." 285 In this penalty phase proceeding, the sentencing body engages in a two-step process. 286 First, it must determine whether the totality of the aggravating cireumstances outweighs the totality of the mitigating cireumstances beyond a reasonable doubt. 287 Second, it must decide whether "the imposition of the death penalty is justified and appropriate in the cireumstances." 288

1220 Mr. Maestas challenges certain evidence presented in the penalty phase of his trial. Specifically, he asserts that he is entitled to a new penalty phase because the trial court erred (A) in granting his request to waive the right to present mitigating evidence, (B) in denying his motion to present the jury with evidence regarding the execution process and prison conditions, and (C) in allowing the State to present certain evidence as aggravating cireumstances. We reject each of these claims.

A. The Trial Court Did Not Err in Granting Mr. Maestas's Request to Waive the Right to Present Mitigating Evidence

1221 Mr. Maestas argues that he is entitled to a new penalty phase because the trial court erred in granting his request to waive the right to present mitigating evidence. Before addressing his claim, we set forth the circumstances of Mr. Maestas's waiver.

1 222 Following the State's presentation of aggravating cireumstances, the defense began to present evidence of mitigating cireum-stances. -Its first witness was a police officer who testified about the poverty and difficult living conditions in Mr. Maestas's childhood hometown. The officer also testified about responding to a homicide at the Maestas home involving the stabbing of Mr. Maestas's sister by her boyfriend. The court recessed after this testimony.

1223 The next morning, before the jury entered the courtroom, Mr. Maestas presented a letter to the court objecting to certain mitigating evidence that defense counsel intended to present. 289 Because defense counsel insisted on presenting this evidence, Mr. Maestas also asked the court to dismiss his counsel and allow him to proceed pro se. In response, the court asked that defense counsel discuss Mr. Maestas's concerns with him and try to reach a mutual agreement about how to proceed regarding the evidence to which Mr. Maestas objected.

*956 1224 After a recess, defense counsel reported to the court that they had discussed Mr. Maestas's concerns with him, but that they still intended to present all the planned mitigating evidence despite Mr. Maestas's objections. Specifically, defense counsel explained that Mr. Maestas did not want to present "any unflattering or negative history about his family." But counsel responded, "[That is simply not something that we can abide given our responsibilities under the [Clonstitution to provide effective representation and ... relevant mitigating evidence in this matter." Counsel further stated, "[Wlhether or not we're going to put on specific evidence, that's our call to make. That's not Mr. Maestas'[s] decision." Accordingly, counsel reported, "We're at an impasse. He does not want us to use everything we have. We are planning to use everything we have."

1225 At that point, the court reminded defense counsel that a defendant has the right to direct his defense. The court also expressed concern over defense counsel's unwillingness to compromise and their determination to present evidence in violation of Mr. Maestas's wishes. The court then asked, "In light of what I've just stated is there any hope, are you willing to accommodate his desires?" Defense counsel responded, "From our point of view it's not negotiable." Counsel added that they would "not simply . follow Mr. Maestas's wishes on this" unless the court ordered them "not to present evidence that ... contravenes Mr. Maes-tas's wishes."

« 226 In considering Mr. Maestas's request to dismiss his counsel because they insisted on presenting mitigating evidence to which he objected, the court concluded that waiver of counsel "at this point[,] under the ciream-stances{,] cannot be voluntary," because defense counsel's insistence on presenting evidence that contravened Mr. Maestas's wishes placed him in a position where he felt he had to waive counsel in order to prevent the evidence to which he objected from coming forward. Accordingly, the court ordered defense counsel "to advise Mr. Maestas of mitigation,] [ilts purpose, its effect, its reasons, what it's intended to show, what [it] is intended to demonstrate[,] [and] the reasons why defense counsel thinks it's appropriate." It further ordered counsel "to consult with Mr. Maestas as to what changes, if any, to that testimony [there] will be. And then abide by Mr. Maestas's wishes regarding mitigation pr

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