State v. Erik Virgil Hall

BRODY, Justice

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

I. FACTUAL AND PROCEDURAL BACKGROUND

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

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

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

*1064 Hall was subsequently charged with the kidnapping, murder, and rape of Ms. Henneman. A jury trial was conducted, and Hall was convicted of all three counts. He was sentenced to death for the murder charge, and received two fixed life sentences without the possibility of parole for the rape and first-degree kidnapping charges. Hall appealed to this Court, but his direct appeal was stayed pending completion of post-conviction proceedings.

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

II. ANALYSIS

A. GUILT PHASE ISSUES ON DIRECT APPEAL

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

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

[I]n cases of unobjected to fundamental error: (1) the defendant must demonstrate that one or more of the defendant's unwaived constitutional rights were violated; (2) the error must be clear or obvious, without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision; and (3) the defendant must demonstrate that the error affected the defendant's substantial rights, meaning (in most instances) that it must have affected the outcome of the trial proceedings.

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

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

Hall cites Draper v. Washington , 372 U.S. 487 , 497-99, 83 S.Ct. 774 , 9 L.Ed.2d 899 (1963), to argue that depriving a defendant of a verbatim transcript deprives him of adequate appellate review. However, Draper does not require every proceeding to be on the record, but rather requires that there be provided a "record of sufficient completeness." Id. at 499 , 83 S.Ct. 774 . Here, there is a record of sufficient completeness available, with transcripts of every relevant hearing, proceeding, and the trial. Hall also contends that Entsminger v. Iowa , 386 U.S. 748 , 752, 87 S.Ct. 1402 , 18 L.Ed.2d 501 (1967), requires a "full record, briefs, and arguments." However, *1065 in Entsminger , the defendant was not provided with either the trial transcript or the parties' briefing. Id. at 750 , 87 S.Ct. 1402 . Here, trial transcripts and all relevant briefing have been provided to Hall. Finally, Hall argues that Hardy v. United States , 375 U.S. 277 , 84 S.Ct. 424 , 11 L.Ed.2d 331 (1964), requires "the entire transcript" be provided under the United States Constitution. In Hardy , there was a complete absence of any transcript and the Supreme Court emphasized that its decision was based on federal statutory, not constitutional, grounds. Id . at 282, 84 S.Ct. 424 .

Federal circuit courts have interpreted the Hardy holding narrowly. See, e.g., Karabin v. Petsock , 758 F.2d 966 , 969 (3rd Cir. 1985) (quoting Griffin v. Illinois , 351 U.S. 12 , 20, 76 S.Ct. 585 , 100 L.Ed. 891 (1956) ) ("The Supreme Court has never held that due process requires a verbatim transcript of the entire proceedings. To the contrary, it has specifically held that states may find 'other means of affording adequate and effective appellate review' of criminal convictions."). These cases do not require a verbatim transcript of every unrecorded proceeding; they only require " 'adequate and effective appellate review' of criminal convictions." Id . (quoting Griffin , 351 U.S. at 20 , 76 S.Ct. 585 ).

This Court has discussed the constitutional ramifications of an appellant not being provided with every transcript from his underlying criminal case. See State v. Brunet , 155 Idaho 724 , 726-27, 316 P.3d 640 , 642-43 (2013). It has held that "[t]he State is not required ... to purchase a stenographer's transcript in every case in which a defendant cannot buy one, nor is the State required to provide a transcript of all proceedings held below." Id. "When an indigent defendant requests that transcripts be created and incorporated into a record on appeal, the grounds of the appeal must make out a colorable need for the additional transcripts." Id . at 727, 316 P.3d at 643 . "Mere speculation or hope that something exists does not amount to the appearance or semblance of specific information necessary to establish a colorable need." Id ."It is basic to appellate practice that error will not be presumed, but must be affirmatively shown by an appellant." State v. Lovelace , 140 Idaho 53 , 65, 90 P.3d 278 , 290 (2003) (citing State v. Langley , 110 Idaho 895 , 897, 719 P.2d 1155 , 1157 (1986) ).

Here, Hall has failed to demonstrate specific prejudice he suffered because some proceedings were conducted off the record. "[E]rror in the abstract does not necessarily rise to the level of constitutional dimension unless and until a defendant properly presents a specific prejudice from such error." Id . Hall has failed to meet his burden to prove that "there is a reasonable possibility that the error affected the outcome of the trial," Perry , 150 Idaho at 226 , 245 P.3d at 978 , or that there exists "specific prejudice from such error," Lovelace , 140 Idaho at 65 , 90 P.3d at 290 . As such, Hall has failed to prove that there was any constitutional violation in the trial court's holding proceedings off record.

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

Hall argues the district court erred by denying his motion to dismiss the indictment on jurisdictional grounds. On April 22, 2003, the evidence against Hall was presented to a grand jury in Ada County. A hearing was held after the grand jury deliberated. During the hearing, the foreman asked the court whether the indictment contained his signature. The court responded, "Yes, I think we got it." The court then asked the foreman whether it was a true bill and the foreman responded, "It is, Your Honor." The next day, Hall was arraigned and counsel was appointed. Later, however, it was discovered that the indictment had not been signed by the foreman. Hall moved to dismiss the indictment under Idaho Code section 19-1401. On April 25, 2003, the court held a hearing, in which the State explained that the foreman had properly dated the indictment, but had forgotten to sign it. After a discussion between the parties and the court, the court took Hall's motion under advisement and set the case over to permit the grand jury to reconvene on the same indictment. Neither of the parties objected to the court's resolution of the issue. On May 6, 2003, the same *1066 grand jury reconvened. The indictment was signed by the foreman at this time. When the parties reconvened before the assigned district court judge, Hall requested that the indictment be dismissed because the date on the indictment was still listed as April 22, 2003. The court denied the motion, explaining that it was the same grand jury that reconvened, that it was a clerical oversight that the indictment had not been initially signed and had the original date, and that the indictment now complied with section 19-1401. Hall argues the indictment should have been dismissed.

"This Court exercises free review over questions of jurisdiction." State v. Lute , 150 Idaho 837 , 840, 252 P.3d 1255 , 1258 (2011). "The information, indictment, or complaint alleging an offense was committed within the State of Idaho confers subject matter jurisdiction upon the court." Id . (quoting State v. Rogers , 140 Idaho 223 , 228, 91 P.3d 1127 , 1132 (2004) ). "No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor." Idaho Const. art. I, § 8. "An indictment cannot be found without the concurrence of at least twelve (12) grand jurors. When so found it must be endorsed, a true bill, and the endorsement must be signed by the foreman of the grand jury." I.C. § 19-1401. "Since the indictment or information provides subject matter jurisdiction to the court, the court's jurisdictional power depends on the charging document being legally sufficient to survive challenge." State v. Jones , 140 Idaho 755 , 758, 101 P.3d 699 , 702 (2004). "To be legally sufficient, a charging document must meet two requirements: it must impart jurisdiction and satisfy due process." State v. Severson , 147 Idaho 694 , 708, 215 P.3d 414 , 428 (2009). The question is thus whether either the temporary absence of a signature or the presence of the original date deprived Hall of due process.

"No indictment is insufficient, nor can [it] be affected, by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits." I.C. § 19-1419. There are several express statutory grounds for setting aside an indictment. See I.C. § 19-1601. "The indictment must be set aside by the court in which the defendant is arraigned, upon his motion ... when it is not found, endorsed and presented as prescribed in this code." I.C. § 19-1601. However, this Court has held that technical defects in an indictment do not defeat jurisdiction of the district court to proceed on the indictment. See Gasper v. Dist. Ct. of Seventh Jud. Dist., in and for Canyon Cnty. , 74 Idaho 388 , 395, 264 P.2d 679 , 683 (1953) ("The conclusion is that such defects [including the presence of unauthorized persons and certain defects in signature] do not involve the jurisdiction of the court, at least in such manner as to provide grounds for prohibition."); see also State v. Schmierer , 159 Idaho 768 , 771, 367 P.3d 163 , 166 (2016). In Gasper , the plaintiff argued that the indictment was not endorsed and presented as required by Idaho Code section 19-1401, because it was not signed by the foreman. Id . at 392, 264 P.2d at 681 . The Court observed that below "the body of the indictment containing the name of the accused, the crime charged, the manner and date of its commission and the date of the indictment ... appears the name of the foreman-presumably his signature-followed by his title as foreman of the grand jury." Id . The Court held that the appearance of the name of the foreman on the bill was "sufficient and substantial compliance with the statute." Id .

With regard to the improper date, Hall objected to the incorrect date and the district court sent the indictment back to the grand jury for a correction pursuant to Idaho Criminal Rule 36. I.C.R. 36 (2003). Because Hall objected, we review using the harmless error standard. Perry , 150 Idaho 209 , 227, 245 P.3d 961 , 979 (2010). "Under the harmless error standard, the defendant has the initial burden of establishing an error, at which point the State has the burden of proving beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." State v. Abdullah , 158 Idaho 386 , 416, 348 P.3d 1 , 31 (2015). Further, this Court has held that [t]echnical defects are a "matter of form ... [that] [do] not tend to prejudice any substantial right of the defendant."

*1067 Gasper , 74 Idaho at 393 , 264 P.2d at 681 .

Here, the improper date was a clerical defect that did not prejudice any of Hall's substantial rights or contribute to the verdict obtained. The foreman believed the indictment to be signed, and once the defect was revealed, it was promptly remedied by reconvening the same grand jury less than one month after it was empowered. Thus, the technical defect in the indictment was cured by the same foreman and grand jury that originally approved the indictment. After the signature was obtained, Hall was re-arraigned. No substantial right of defendant Hall was prejudiced and because the errors were corrected promptly by the same grand jury and Hall was re-arraigned, it cannot be said that the errors affected the verdict obtained.

Further, Hall made a motion to dismiss the indictment, but he did not object to the court sending it back to the grand jury for a signature. Hall failed to object to the court's remedy, and as such, has waived the objection. Jones , 140 Idaho at 758 , 101 P.3d at 702 ("Tardily raised objections based on defects in an indictment or information are waived unless they allege either (1) a failure to show jurisdiction, or (2) a failure to charge an offense."). For these reasons, we hold that the district court properly denied Hall's motion to dismiss the indictment.

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

During voir dire , Hall moved to strike two jurors for cause. Hall first moved to strike Juror 1 for cause, arguing that the juror was biased. The court denied the motion, stating that Juror 1's answer indicated that he would not always vote for the death penalty, particularly since none of the jurors had been instructed on the law. After further voir dire , Hall again moved to excuse Juror 1, contending that Juror 1 was biased in favor of the death penalty and would not consider mitigation evidence adequately. The court denied Hall's motion again. Later, Hall moved to strike Juror 60 for cause, arguing that she was "substantially mitigation impaired." The court denied Hall's motion. After the jury was selected, the parties agreed that each juror was seated as selected and offered no objection to the jury. Neither Juror 1 nor Juror 60 was seated on the jury. Further, none of the seated jurors were objected to during voir dire . On appeal, Hall contends that his constitutional rights were violated because the district court did not excuse Juror 1 or Juror 60 for cause, requiring him to use two peremptory challenges to remove them.

"The proper standard for determining when a prospective juror may be excluded for cause because of his views on capital punishment is whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Wainwright v. Witt , 469 U.S. 412 , 412, 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas , 448 U.S. 38 , 45, 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980) ). "[A] trial court does not abuse its discretion by refusing to excuse for cause jurors whose answers during voir dire initially give rise to challenges for cause but who later assure the court that they will be able to remain fair and impartial." Nightengale v. Timmel , 151 Idaho 347 , 353, 256 P.3d 755 , 761 (2011) (quoting Morris v. Thomson , 130 Idaho 138 , 141, 937 P.2d 1212 , 1215 (1997) ).

"The decision to excuse potential jurors is within the discretion of the trial court." State v. Hairston , 133 Idaho 496 , 506, 988 P.2d 1170 , 1180 (1999). "The Court determines whether the district court abused its discretion by examining: '(1) whether the court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently within the applicable legal standards; and (3) whether the court reached its decision by an exercise of reason.' " Abdullah , 158 Idaho at 416 , 348 P.3d at 31 (quoting State v. Shackelford , 150 Idaho 355 , 363, 247 P.3d 582 , 590 (2010) ).

Juror 1 was asked by the court whether he would "weigh the aggravating and mitigating circumstances presented, [and] ... fairly consider both voting for life in prison and voting to impose the death penalty," to which *1068 he answered, "Yes." During the State's questioning, counsel asked:

Some of the [jury questionnaire] questions dealt with whether what [sic] you think about a person who has come from a difficult or chaotic background. Some people view that as being a reason not to hold them responsible for the choices that they make or to judge them less harshly for the choices they make. Other people look at it a different way, feel sorry for them, sorry for the person but hold them responsible for the choices that they make, regardless of how bad their background has been. Where are you on that issue?

In response Juror 1 stated, "I would have to say that I'm more to the latter where someone, regardless of what their background is, is responsible for their actions." However, during defense questioning, Juror 1 then stated he would consider the defendant's upbringing as a mitigating factor. The State also asked:

[Y]ou'll be asked to listen to [additional facts], to decide what weight to give each kind of thing that you hear, whether any weight or none or a bunch, and then to weigh those things in making a decision as to what the penalty will be.

My question is, will you be able to do that kind of a job, that is, to listen to what the State says, listen to what the Defense says if they-I mean, the burden is still on us, not on them-and to make important decisions of that kind, based on mitigation and aggravation evidence as well?

Juror 1 responded in the affirmative. When questioned by the defense regarding the death penalty in view of a brutal factual situation, Juror 1 said, "I'd probably be leaning more toward the death penalty, if it was clearly very brutal and premeditated." However, in the questionnaire, Juror 1 circled the option, "I believe that the death penalty is appropriate in some murder cases and I could return a verdict in a proper case which assessed the death penalty." Juror 1 did not select the option stating, "It would be appropriate in all murder cases." Additionally, when asked if the defendant was found guilty whether Juror 1 would be able to be "open and fair and impartial as to what the sentence may be," and whether it "would be a difficult thing to do," Juror 1 stated "Yes. I think I likely would have formed an opinion already." However, he stated, "I think I would likely by leaning towards the former but certainly open to-to the [defense] presentation and try to be fair about it." Juror 1 consistently stated that, while he supported the death penalty and would be willing to apply it, he would analyze the circumstances-aggravating and mitigating-and try to make a fair determination.

Here, Juror 1's answers may have given rise to challenges for cause initially, but he subsequently assured the court that he would weigh the evidence and make a fair decision. "[T]he court is entitled to rely on assurances from venire persons concerning partiality or bias." Nightengale , 151 Idaho at 353 , 256 P.3d at 761 (quoting Hairston , 133 Idaho at 506 , 988 P.2d at 1180 ). Juror 1 repeatedly stated that he would consider the evidence presented and aim to be fair and impartial, and the court was entitled to rely upon these assertions. As such, the district court did not abuse its discretion by refusing to strike Juror 1.

Juror 60's response to the jury questionnaire admitted that she favored the death penalty in some kinds of cases, particularly in cases involving serial murders and others, depending on the severity of the crime. In her response, Juror 60 stated that she wanted to hold a person responsible for their crimes, and would not consider mitigating evidence. But at this point, Juror 60 had not been instructed on the law on mitigation. When later asked during voir dire if she could weigh mitigation against aggravation as instructed by the court, Juror 60 stated that she could. She initially stated that she would not fully weigh circumstances of birth, character, sympathy, or mercy, but went on to say that she would consider the facts of the crime and the circumstances surrounding the crime.

Similar to Juror 1, Juror 60 also assured the court that she would make a fair decision. The court is entitled to rely on these assurances. Nightengale , 151 Idaho at 353 , 256 P.3d at 761 . The district court did not abuse its discretion by denying the motion to strike *1069 Juror 60. The court reasoned that Juror 60 would consider both aggravating and mitigating circumstances, and that the weight she assigns to them was her choice. When the defense argued that the juror was "mitigation impaired" and had stated that she would not consider mitigating evidence to the full extent, the court stated that the juror had agreed to weigh all of the facts and had not yet been instructed on mitigation law. When the defense moved to strike Juror 60, the State argued that Juror 60 agreed to consider mitigation evidence, and had not "indicated the slightest hesitancy about listening to any kind of evidence properly presented." After considering these arguments, the court denied the motion.

As stated above, a juror may be excused for cause on a capital case if the juror's views would "prevent or substantially impair the performance of his duties." Wainwright v. Witt , 469 U.S. 412 , 424, 105 S.Ct. 844 (1985). There is no indication that either Juror 1 or Juror 60 was impaired from performing their duties as jurors. Both articulated a willingness and ability to consider mitigating factors and fairly apply the law. Therefore, the court did not abuse its discretion by denying Hall's motion to strike the jurors.

Turning to Hall's constitutional argument, the United States Supreme Court has "long recognized that peremptory challenges are not of constitutional dimension." Ross v. Oklahoma , 487 U.S. 81 , 83, 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988). "They are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." Id ."When a party uses one of its peremptory challenges to remove a juror it argues should have been removed for cause, the party must show on appeal that 'he was prejudiced by being required to use a peremptory challenge to remove [the juror].' " Nightengale , 151 Idaho at 354 , 256 P.3d at 762 (quoting State v. Ramos , 119 Idaho 568 , 570, 808 P.2d 1313 , 1315 (1991) ). The appellant must demonstrate that "any of the other remaining jurors on the panel were ... not impartial or were biased." Id . Here, as will be discussed below, no biased jurors were seated. The court did not abuse its discretion in denying Hall's motions to strike Juror 1 and Juror 60.

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

Hall contends that nine of the jurors-Juror 6, 62, 63, 68, 83, 85, 102, 110, and 111-were biased. Hall claims that his right to an impartial jury under the Sixth, Eighth, and Fourteenth Amendments was violated, and he requests a new trial. Hall's claims include alleged juror biases resulting from: employment in law enforcement, spouses in law enforcement or working at the Attorney General's Office, family members or associates who were victims of violent crime, difficulty maintaining focus for long periods of time, hearing impediments, and indirect ties to witnesses. However, as Hall failed to object to these jurors, he has invited the error and waived the issue on appeal.

"The invited error doctrine precludes a criminal defendant from 'consciously' inviting district court action and then successfully claiming those actions are erroneous on appeal." State v. Abdullah , 158 Idaho 386 , 420, 348 P.3d 1 , 35 (2015) (quoting State v. Owsley , 105 Idaho 836 , 837, 673 P.2d 436 , 437 (1983) ). "It has long been the law in Idaho that one may not successfully complain of errors one has acquiesced in or invited. Errors consented to, acquiesced in, or invited are not reversible." Id . at 420-21, 348 P.3d at 35 -36 (quoting Owsley , 105 Idaho at 838 , 673 P.2d at 438 ); see also State v. Dunlap , 155 Idaho 345 , 379, 313 P.3d 1 , 35 (2013) (applying invited error to a capital case). Hall concedes that he did not object to seating any of the nine jurors, did not use a peremptory challenge for any of the nine jurors, and passed each for cause. In short, Hall failed to raise any objection to these jurors at any time, and allowed the jurors to be empaneled without reservation. Thus, any error was invited and is not reversible. Hall has waived this issue on direct appeal.

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

Hall argues that the district court abused its discretion in admitting the *1070 testimony of Detective Smith that included his opinion about whether Christian Johnson was a viable suspect. He asserts that this testimony was irrelevant, consisted of an impermissible opinion about Johnson's guilt or innocence, and was improper vouching for the State's case.

Hall takes issue with the following testimony:

THE STATE: And after you received the results back from the forensic testing and had spoken to those people, did you-well, did you also take ultimately a DNA sample-or did he give you a DNA sample from himself [referring to Johnson]?

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

THE STATE: And after you received the results back from all these things, did you continue to look for a suspect after you were done looking at him?

DET. SMITH: I eliminated Chris Johnson as-

DEFENSE: Objection-

DET. SMITH: And continued, yes.

DEFENSE: That is nonresponsive.

THE STATE: I'll ask a direct question.

THE COURT: All right. Thank you.

THE STATE: Did you eliminate him as a suspect?

DET. SMITH: I did.

DEFENSE: Objection.

THE COURT: Basis for the objection?

DEFENSE: Can I make a motion outside the presence?

... [The jury is excused]

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

DEFENSE: Well, this officer can testify about facts, things he did. But what his conclusions are are irrelevant. And there's no foundation for his conclusions. Initially he's trying to get-well, he's making nonresponsive responses concerning hearsay information. And stopped that, and now he's making conclusions which I feel are irrelevant. It's the province of the jury to decide what the facts are not his, his province. So I-you know, object and I move to strike that.

After this objection, the court heard argument from both sides before ruling on the objection and motion on the grounds that there was not "anything inherently wrong with a conclusion" and that Detective Smith's actions were relevant, but not binding on a jury. Hall asserts that Smith's testimony was irrelevant, and that it constituted improper opinion testimony and vouching. The objections regarding relevance and improper opinion testimony were raised below.

For an objection to be preserved for appellate review, either the specific ground for the objection must be clearly stated, or the basis of the objection must be apparent from the context. An objection to the admission of evidence on one basis does not preserve a separate and different basis for excluding the evidence.

Slack v. Kelleher , 140 Idaho 916 , 921, 104 P.3d 958 , 963 (2004) (internal citations omitted). "When an objection is made, the trial court is only asked to determine the validity of that objection; it is not asked to determine whether there is another objection that would have been sustained had it been made." Id ."On appeal, we review whether the trial court erred. If the objection is made on specific ground, the trial court is simply asked to decide whether that particular objection is a valid reason for excluding the evidence. If the trial court correctly overrules that objection, it has not erred." Thomson v. Olsen, 147 Idaho 99 , 105-06, 205 P.3d 1235 , 1241-42 (2009).

As outlined above, "[i]f the alleged error was followed by a contemporaneous objection at trial, appellate courts shall employ the harmless error test articulated in [ Chapman v. California , 386 U.S. 18 , 87 S.Ct. 824 (1967) ]." Perry , 150 Idaho at 227 , 245 P.3d at 979 . Hall objected on relevancy and improper opinion grounds, so the harmless error test will be used. The harmless error test is as follows: "[w]here the defendant meets his initial burden of showing that a violation occurred, the State then has the burden of demonstrating to the appellate court beyond a reasonable doubt that the constitutional violation did not contribute to the jury's verdict."

*1071 Id . Hall must first meet the initial burden of showing that the evidence was improperly admitted.

While an objection to the improper opinion testimony was raised below, it was unquestionably muddled. The basis for finding that an improper opinion testimony objection was made rests in two sentences: "And there's no foundation for his conclusions," and "It's the province of the jury to decide what the facts are not his." While inartfully raised, there is some indication that Hall objected to Smith's conclusions as opinion. The court overruled the objection, stating, "[H]e's entitled to explain ... what he did and why he did it and what conclusions he may have arrived at." Thus, the objection was raised and decided below.

The question is whether the improper opinion objection had merit. "When reviewing the trial court's evidentiary rulings, this Court applies an abuse of discretion standard." Edmunds v. Kraner , 142 Idaho 867 , 871, 136 P.3d 338 , 342 (2006). "Error is disregarded unless the ruling is a manifest abuse of the trial court's discretion and affects a substantial right of the party." Perry v. Magic Valley Reg'l Med. Ctr. , 134 Idaho 46 , 51, 995 P.2d 816 , 821 (2000). "The decision to admit opinion testimony, whether lay opinion or expert opinion, rests within the discretion of the lower court, while the determination of its weight lies with the jury." State v. Almaraz , 154 Idaho 584 , 602, 301 P.3d 242 , 260 (2013) (quoting State v. Cutler , 94 Idaho 295 , 299, 486 P.2d 1008 , 1013 (1971) ). "The trial court's broad discretion in admitting evidence 'will only be disturbed on appeal when there has been a clear abuse of discretion.' " Id . (quoting State v. Merwin , 131 Idaho 642 , 646, 962 P.2d 1026 , 1030 (1998) ). "The Court determines whether the district court abused its discretion by examining: '(1) whether the court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently within the applicable legal standards; and (3) whether the court reached its decision by an exercise of reason.' " State v. Abdullah , 158 Idaho 386 , 416, 348 P.3d 1 , 31 (2015) (quoting State v. Shackelford , 150 Idaho 355 , 363, 247 P.3d 582 , 590 (2010) ).

Lay opinion testimony is governed by Idaho Rule of Evidence 701. Rule 701, as it read in 2004, stated:

If the witness is not testifying as an expert, the testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.

Thus, the crux of this issue lies in whether Smith's testimony-regarding Johnson's elimination as a suspect-was limited to opinions "rationally based" upon his perception, "helpful to a clear understanding of his testimony," and "not based on scientific, technical or other specialized knowledge." Here, it appears that Smith's testimony was limited to an explanation of the investigative process, which was rationally based upon his perception as an investigator. Smith was testifying about the process of the investigation, and the process of eliminating Johnson as a suspect, not about his personal opinion. While opinions that concern "an inference that could be drawn by the jurors utilizing their own common sense and normal experience" are prohibited under State v. Ellington , 151 Idaho 53 , 66, 253 P.3d 727 , 740 (2011), Smith was providing background information crucial to understanding the investigative process. Smith investigated Johnson's alibi, collected his DNA sample, scrutinized his story, and then moved on to other suspects, which is what Smith was explaining. Second, this testimony was helpful to a clear understanding of his testimony-the process of the investigation-as well as a determination of whether Hall committed the crimes. It was also helpful to a determination about whether Hall acted alone. Lastly, this testimony is not based upon scientific, technical, or other specialized knowledge as prohibited by Rule 701. Smith testified about what he did during the investigation, which was appropriate testimony from a detective. Therefore, the testimony *1072 was proper. The district court did not abuse its discretion in overruling the objection on this ground.

Additionally, the relevance issue was clearly raised below. Hall contends that the district court erred because "why Det. Smith behaved as he did is irrelevant." "[W]hether evidence is relevant is a matter of law that is subject to free review." State v. Shackelford , 150 Idaho 355 , 363, 247 P.3d 582 , 590 (2010). " 'Relevant [e]vidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence." I.R.E. 401 (2004).

Here, Smith's testimony was relevant to refute Hall's contention that Johnson was involved in Ms. Henneman's murder, which was a fact of consequence that made Hall's guilt more probable than it would be without the evidence. The testimony provided the jury with a complete story. It explained why the police no longer considered Johnson a suspect after his DNA results were received. It provided the jury with details about how the investigation progressed, and may have been helpful to the jury in determining Hall's guilt. The evidence was relevant and was properly admitted. Hall has failed to show that a violation occurred under the harmless error test. We affirm the district court's admission of Detective Smith's testimony.

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

Hall claims that the State engaged in prosecutorial misconduct by discussing DNA evidence in its opening statement, by presenting evidence regarding the DNA exclusion of Johnson, and by "overstat [ing] the significance" of the DNA evidence in closing argument. At trial, Hall did not object to the opening statement, the admission of the expert's testimony regarding DNA, or the closing argument.

When the alleged error was not followed by a contemporaneous objection, it shall only be reviewed by an appellate court under Idaho's fundamental error doctrine. Under that doctrine, there must be an error that violates one or more of the defendant's unwaived constitutional rights; the error must plainly exist; and the error must not be harmless.

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

The first question is whether the alleged misconduct violated a constitutional right. "To constitute a due process violation, the prosecutorial misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' " Greer v. Miller , 483 U.S. 756 , 765, 107 S.Ct. 3102 , 97 L.Ed.2d 618 (1987) (quoting United States v. Bagley , 473 U.S. 667 , 676, 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985) ). "[I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned." Darden v. Wainwright , 477 U.S. 168 , 181, 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986) (internal quotation marks omitted). Rather, "[t]he relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Id . (quoting Donnelly v. DeChristoforo , 416 U.S. 637 , 643, 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974) ).

In its opening statement, the State declared that "[n]obody else on the planet has a match like that man's DNA. Nobody whose [sic] ever lived on this planet, nobody who ever will live on this planet has this man's DNA." It also declared that an expert witness "was able to make a [DNA] profile of the killer." A prosecutor is permitted to discuss the evidence and the inferences and the deductions arising therefrom. State v. Sistrunk , 98 Idaho 629 , 630, 570 P.2d 866 , 867 (1977). It is only misconduct when the statements made are "calculated to inflame the minds of jurors and arouse prejudice or passion against the accused by statements in his argument of facts not proved by evidence." State v. LaMere , 103 Idaho 839 , 844, 655 P.2d 46 , 51 (1982). Here, the opening statement was based upon a reasonable inference arising from the upcoming expert's testimony. These statements, taken in context, were not intended to arouse prejudice, but to discuss upcoming evidence. The expert did later testify that a DNA profile had been *1073 made of the killer and of the rarity of finding a DNA match. Thus, the State's statement did not "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Darden , 477 U.S. at 181 -82 , 106 S.Ct. 2464 . It was made in the context of reasonable discussion of the evidence, which is permissible under the law. The prosecuting attorney's comment did not constitute misconduct.

During the presentation of the DNA evidence, two DNA experts testified. Dr. Carla Finis testified that humans share 99.7% of their DNA, but that there are still "9 million pieces of discrete information that can be different and variable from one individual to another." She explained that to develop a DNA profile for identity testing, experts examine 13 genetic regions or "loci." Dr. Finis testified that with "those 13 loci combined with gender locus, we get a complete profile and that matches an individual, yes, someone could say with a reasonable degree of scientific certainty that that sample came from that particular individual." She explained:

Typically a DNA match is expressed in terms of the relative probability or the chance that one would go out into the population and happen to, at random, select an individual and type them and find that profile. With DQA1 polymarker testing, since it's less variable, the chance will be greater tha[t] you'll find somebody that has the profile you're looking at from the crime scene.

... With the STR technology looking again at 13 more variable loci, the numbers that are generated from the analyses are typically in the 1's of trillions .... So it's much more rare that you'd find it in the general population.

Immediately thereafter, she was questioned by the prosecutor:

Q. But there aren't a quadrillion people?

A. No. Actually those numbers are a thousand times over what the current population is as estimated by the sensus [sic] in 2000 being about 6 billion, or 6 with nine zeroes following it.

Q. ... But once the numbers of-the probability numbers get greatly beyond the current population, does that help you to decide whether you have a match or not?

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

She continued, stating:

Q. So when you get a probability that is in the trillions ... does that tell you then that there could not be another person on the planet who would have the same DNA that would match at all 13 of those locations?

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

The second DNA expert to testify was Kathryn Colombo. She testified that Hall's DNA profile matched the profile obtained from sperm in Ms. Henneman's vagina. She testified that the chance of obtaining this particular profile in the Caucasian population is 1 in 49 quadrillion, and the chances are even smaller in the African American and Hispanic populations. After examining the statements, the experts in this case did not conflate random match and source probability as Hall argues, but rather allowed the jury to see the evidence and infer what occurred based upon statistical probabilities. As such, there was no prosecutorial misconduct in the questioning of either of the expert witnesses.

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

We brought Dr. Finis in here to talk about probabilities. We bought her in here to tell you how this all works so that you could be confident that STR DNA testing is an identity test of a probability test. It's an identity test. You identify people with 13 loci STR DNA testing.

....

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

You know about all the big numbers. I didn't try and write out quadrillion for you. ... I submit to you that this element has been proven.

Here, the State properly summarized the testimony of the experts. It reminded the jury of Dr. Finis' testimony regarding probabilities, how DNA testing works, and some of the science behind the findings. It then stated *1074 that the DNA found was a match to Erick Hall. This was an appropriate summary of the admitted expert testimony. The State did not misstate the evidence or frame it in such a way as to "infect the trial with unfairness as to make the resulting conviction a denial of due process." Darden , 477 U.S. at 181 , 106 S.Ct. 2464 .

Hall also claims that the presentation of the DNA evidence is "a classic case of the 'prosecutor's fallacy,' " and violated his due process rights by overstating the significance of the DNA match:

The prosecutor's fallacy is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample. ... In other words, if a juror is told the probability a member of the general population would share the same DNA is 1 in 10,000 (random match probability), and he takes that to mean there is only a 1 in 10,000 chance that someone other than the defendant is the source of the DNA found at the crime scene (source probability), then he has succumbed to the prosecutor's fallacy.

McDaniel v. Brown , 558 U.S. 120 , 128, 130 S.Ct. 665 , 175 L.Ed.2d 582 (2010). Specifically, Hall complains that the following exchange misled the jury:

THE STATE: The reason I ask it is this: Say that you take a blood sample from a crime scene and a known blood sample from a suspect and you compare those two and it's a match. How do you know that somebody else doesn't match also? What I'm looking for is to see if there is some numerical way in which laboratories can express the strength or significance of the DNA match.

DR. FINIS: Yes, there is. Typically, a DNA match is expressed in terms of the relative probability or the chance that one would go out into the population and happen to, at random, select an individual and type them and find that profile. With DQA1 polymarker testing, since it's less variable the chance will be greater than you'll find somebody tha[t] has the profile you're looking at from the crime scene.

The numbers tend to run in 1 in tens of thousands to 1 in 100,000's with that type for probability of finding someone at random in the population that would have that profile. With the STR technology looking again at 13 more variable loci, the numbers that are generated from the analyses are typically in the 1's of trillions. So that's 1 with 12 zeros after it, kind of like our budget deficit, or quadrillions, 1 in-with 10 to the 15th or 1 with 15 zeroes after it. So it's much more rare that you'd find in the general population.

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

DR. FINIS: No. Actually those numbers are a thousand times over what the current population is estimated by the sensus [sic] in 2000 being about 6 billion, or 6 with nine zeroes following it.

THE STATE: And so if-we're going to talk about this in a minute. But once the numbers of-the probability numbers get greatly beyond the current population, does that help you decide whether you have a match or not?

DR. FINIS: It does. Like I said, that's at the point where you've obtained a clean single source profile of 13 loci you get these numbers. And based on your knowledge of the variability and on population genetics, it's reasonable to ascertain that these sources are the same.

Review of the transcript reveals the Dr. Finis was careful to explain that random match probability was the probability that a person selected at random would match the profile, not the probability of a finding a match in a population of people. The differences between the two are subtle and easily confused. Random match probability postulates the probability of selecting a person off the street and having that person's DNA profile match a given sample. See McDaniel v. Brown , 558 U.S. 120 , 124, 128-29, 130 S.Ct. 665 (2010). It is typically communicated-as was done here-in one of tens of thousands or hundreds of thousands. The probability of finding a match in a given population is a very different process and calculus, and requires information about the frequency of alleles at a particular loci across that population *1075 -information which has likely never been collected. Dr. Finis and the State further clarified random match probability by illustrating this data with bottles of marbles. Dr. Finis testified at length about DNA generally, about the testing conducted at her office, and about random match probability. Dr. Finis also testified at length about what the data she was referencing meant and how it was collected and analyzed. Taken in context, it is clear that Dr. Finis' testimony did not overstate the significance of the DNA evidence.

There was no prosecutorial misconduct in the opening statement, the expert witness testimony, or the closing statement. Hall has failed to establish that any due process violation occurred; therefore, no constitutional right was violated. There is no basis for Hall's claim of error.

7. Testimony from a DNA expert witness who supervised the DNA testing did not violate Hall's Sixth Amendment right to confrontation.

Dr. Finis provided expert testimony regarding the DNA testing conducted prior to finding a match with Hall. Dr. Finis supervised Ann Bradley, the person who did all of the physical processing of the sample. Ms. Bradley and Dr. Finis each conducted independent data interpretations and arrived at individual conclusions. Dr. Finis testified that they "processed and reported on 94 different individuals ... and all of them were eliminated as to the source of the DNA." In September 2001, another scientist, Cindy Hall, did the physical processing of samples utilizing another DNA method involving 35 additional individuals "who we eliminated as possible donors of the sperm fraction." There was no objection to Dr. Finis' testimony at trial. On appeal, Hall contends that his Confrontation Clause rights were violated because Dr. Finis did not complete "hands-on testing" of all of the DNA samples and because he was unable to question the party who completed the "hands-on testing."

"Whether the admission of [evidence] violated [Hall's] right to confront witnesses under the Sixth Amendment is a question of law over which the Court exercises free review." State v. Shackelford , 150 Idaho 355 , 372, 247 P.3d 582 , 599 (2010). As noted above, unobjected-to evidence is reviewed under the fundamental error doctrine. State v. Perry , 150 Idaho 209 , 226, 245 P.3d 961 , 978 (2010).

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The United States Supreme Court has held that the clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington , 541 U.S. 36 , 53-54, 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). "It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." Davis v. Washington , 547 U.S. 813 , 821, 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006).

Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Crawford , 541 U.S. at 51 -52 , 124 S.Ct. 1354 (internal quotations and citations omitted).

In determining whether a statement is testimonial in nature, the "inquiry should focus on whether the technician's statements were made with a primary objective of creating an evidentiary record to establish or prove a fact at trial." State v. Stanfield , 158 Idaho 327 , 337, 347 P.3d 175 , 185 (2015). When addressing expert testimony, *1076 "[a] defendant's right to confrontation is violated when 'an expert acts merely as a well-credentialed conduit,' and does not provide any independent expert opinion." Id . at 338, 347 P.3d at 186 (quoting United States v. Ramos-Gonzalez , 664 F.3d 1 , 5-6 (1st Cir. 2011) (holding that testimony violated Confrontation Clause because the expert simply recounted results of another expert's testing) ). "However, when an expert independently evaluates objective raw data obtained from an analyst, and exercises his or her own judgment in reaching a conclusion, the expert is not a conduit for the analyst's conclusion." Id . (citing United States v. Summers , 666 F.3d 192 , 201-02 (4th Cir. 2011) ). "Rather, the testifying expert's opinion is an 'original product' that can be readily 'tested through cross-examination.' " Id . at 339, 347 P.3d at 187 (quoting Summers , 666 F.3d at 202 ) (internal quotations and citation omitted). "The testimony of an expert witness who arrives at an independent conclusion is permissible under the Confrontation Clause even where other non-testifying analysts have provided underlying data or conducted portions of the testing." Id . at 338, 347 P.3d at 186 .

Here, Dr. Finis independently interpreted the data and arrived at her own conclusions based upon the raw evidence. Further, she supervised Ms. Bradley, who did all of the physical processing of the samples and conducted her own independent review of the data. With regard to the thirty-five additional individuals tested by Cindy Hall, Dr. Finis again explained that someone else did the physical processing of the samples, but Dr. Finis again independently reviewed and analyzed the data. Her opinions and data analyses were thus her original product, which were available to be tested on cross-examination. She was not a conduit for the opinions of another expert because she provided her own opinions on work she supervised and partly completed. Dr. Finis' testimony was permissible under the Sixth Amendment. Therefore, there was no fundamental error in the admission of Dr. Finis' testimony.

8. The State properly presented and the district court properly admitted Exhibits 118, 119, and 120.

Dr. Glen Groben-the forensic pathologist who conducted the autopsy on Ms. Henneman's body-explained that fixed lividity involves the pooling of blood after death and that he observed a "specific livor pattern on [Ms. Henneman's] body." Based upon the lividity patterns, Dr. Groben affirmed that he had an opinion on "how [Ms. Henneman] was tied just after death," and that Exhibits 118, 119, and 120 would help illustrate his opinion. These exhibits show a reenactment of the body as it is postulated to have been hogtied either before or soon after Ms. Henneman's death. The State moved for admission of those exhibits, and Hall objected based on lack of foundation and unfair prejudice. Outside the jury's presence, the State made an offer of proof, and the district court concluded there was sufficient foundation to admit both Dr. Groben's testimony and Exhibits 118, 119, and 120. When the jury returned, Hall questioned Dr. Groben, who explained that Ms. Henneman was "strangled and then placed on her stomach when this was done. ... [o]r [it] could have been at or around the time of death." Hall objected again, contending that, because Ms. Henneman being tied was "not part of the cause of death or part of that portion of the examination[,] then it's not relevant." The district court reasoned, "this evidence is relevant because it explains the condition of the body, if not before death then perhaps-then it would seem almost certainly for the period of approximately 12 hours after death."

Hall also argued that, irrespective of Dr. Groben's opinion, Exhibits 118, 119, and 120 were unfairly prejudicial. The district court concluded that "Exhibit 120 is the one that's, perhaps, the most difficult for the jurors because it's a-it's top down. It shows the buttocks area and it-it is probably the most-if there's a shock factor, if you will, it probably has the most shock factor to a potential juror." Nevertheless, the court reaffirmed the relevancy of the photos and concluded, "Any good evidence is prejudicial. This evidence is very prejudicial, substantially prejudicial to the defendant, but I do not think that it is unfairly prejudicial ." (emphasis added).

Dr. Groben then explained that he reenacted the positioning of Ms. Henneman's *1077 "body in a manner that would account for the marks, the lividity patterns" that he saw during the autopsy. Exhibits 118, 119, and 120 were illustrative of how Dr. Groben positioned Ms. Henneman's body based upon the lividity patterns. Hall contends the district court erred by admitting Dr. Groben's "reenactment" testimony and Exhibits 118, 119, and 120, because there was a lack of foundation, they were irrelevant, and unfairly prejudicial. Hall further contends that admission of the evidence constitutes prosecutorial misconduct rising to the level of fundamental error because the evidence is "speculative [and] extraordinarily prejudicial."

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

"Whether there is a proper foundation upon which to admit evidence is a matter within the trial court's discretion." State v. Koch , 157 Idaho 89 , 96, 334 P.3d 280 , 287 (2014). While the relevance of evidence is subject to free review, the lower court's "determination of whether the probative value of the evidence outweighs its prejudicial effect is reviewed for an abuse of discretion." State v. Stevens , 146 Idaho 139 , 143, 191 P.3d 217 , 221 (2008) (internal citations omitted). "If the alleged error was followed by a contemporaneous objection at trial, appellate courts shall employ the harmless error test articulated in [ Chapman v. California , 386 U.S. 18 , 87 S.Ct. 824 (1967) ]." State v. Perry , 150 Idaho 209 , 227, 245 P.3d 961 , 979 (2010). Here, Hall objected on the grounds of lack of foundation for the testimony and the reenactment photos, relevancy of the testimony, and unfair prejudice of the reenactment photos, so the harmless error test applies to these issues. The harmless error test is as follows: "Where the defendant meets his initial burden of showing that a violation occurred, the State then has the burden of demonstrating to the appellate court beyond a reasonable doubt that the constitutional violation did not contribute to the jury's verdict." Id . The first question is whether the evidence was properly admitted.

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

Hall argues that there was inadequate foundation for the expert opinion on the lividity patterns. Idaho Rule of Evidence 702 (2004) governs the admissibility of expert testimony. It states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

"The inquiry under I.R.E. 702 is whether the expert will testify to scientific knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue, 'not whether the information upon which the expert's opinion is based is commonly agreed upon.' " State v. Perry , 139 Idaho 520 , 522, 81 P.3d 1230 , 1232 (2003) (quoting State v. Merwin , 131 Idaho 642 , 646, 962 P.2d 1026 , 1030 (1998) ).

"Expert opinion must be based upon a proper factual foundation." Bromley v. Garey , 132 Idaho 807 , 811, 979 P.2d 1165 , 1169 (1999). "If, based on an expert's training, one possible cause is observed with greater frequency than others, this information would be useful to the trier of fact." Merwin , 131 Idaho at 646 , 962 P.2d at 1031 ; see also Lanham v. Idaho Power Co. , 130 Idaho 486 , 492, 943 P.2d 912 , 918 (1997) (holding it was not error to permit an expert to "testify about possible causes of the fire. All reasonably likely causes of the fire were relevant because the fire's cause was a central element of the [ ] causes of action."). "[E]xpert medical opinion testimony must be based upon a 'reasonable degree of medical probability' in order to be admissible." Bloching v. Albertson's, Inc. , 129 Idaho 844 , 846, 934 P.2d 17 , 19 (1997) (quoting Roberts v. Kit Mfg. Co. , 124 Idaho 946 , 948, 866 P.2d 969 , 971 (1993) ).

Here, Dr. Groben's opinion regarding Ms. Henneman's position was based upon a proper factual foundation of lividity patterns found on the body. Dr. Groben's opinion regarding how Ms. Henneman was tied was not based upon mere "speculation" or "possibilities,"

*1078 but was based upon the lividity patterns observed on the body. Hall did not object to Dr. Groben's testimony about these observations. Dr. Groben testified that after Ms. Henneman's body was recovered from the river he observed a "ligature around the neck on a single overhand knot tight around her neck, a piece of clothing. Around the left wrist was tied in a double overhand knot was another piece of dark clothing tied tightly around the left wrist." Without objection, Dr. Groben used Exhibits 113 through 117 to render opinions regarding the lividity patterns on Ms. Henneman's body. When Dr. Groben was asked, "based on the lividity patterns that you've established, Doctor, did you form a medical opinion on how the victim was tied just after death," he responded, "Yes." He determined that hogtied positioning was the most likely cause. This was evidence from which the jury could potentially determine the nature and circumstances of Ms. Henneman's death, which was a key inquiry in the case. Further, Dr. Groben explained at length the basis for his opinions, and admitted their limitations. The district court did not abuse its discretion in concluding that Dr. Groben's expert witness testimony regarding the lividity patterns was supported by a sufficient factual foundation.

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

Hall argues that there was inadequate foundation for the reenactment photos because "Dr. Groben did not observe [Ms. Henneman's] body around the time of her death, and her body was not hogtied when it was recovered from the Boise River." However, Exhibits 118, 119, and 120 were admitted for illustrative purposes to explain the reenactment done by Dr. Groben, which reflected his observations of the lividity patterns on Ms. Henneman's body.

The trial court's decision to admit the reenactment photos is reviewed for an abuse of discretion. Vendelin v. Costco Wholesale Corp. , 140 Idaho 416 , 429, 95 P.3d 34 , 47 (2004).

This Court has adopted a three part test for determining whether the district court abused its discretion: (1) whether the court correctly perceived that the issue was one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether it reached its decision by an exercise of reason.

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

As explained in Zolber v. Winters , 109 Idaho 824 , 828, 712 P.2d 525 , 529 (1985), "It is established that the use of exhibits by a testifying witness in order to supplement or illustrate events is proper insofar as the differences between the events depicted and the events observed are explained by the witness and the exhibit is not deceptive." Moreover, "[e]xperiments based upon reasonably similar circumstances are admissible to show the existence or nonexistence of a fact, and the circumstances do not need to be exactly the same as those surrounding the event." State v. Cypher , 92 Idaho 159 , 171, 438 P.2d 904 , 916 (1968). Finally, "[a]ccuracy ... is not the standard governing relevance of illustrative evidence; rather, the illustrative evidence must only be relevant to the witness's testimony," which is "particularly true when the events surrounding a death are in dispute." Stevens , 146 Idaho at 143 , 191 P.3d at 221 .

When the State asked Dr. Groben if he had formed a medical opinion on how Ms. Henneman was tied just after death, the State specifically asked Dr. Groben if he had "create[d] some images that would illustrate" his opinion and then offered Exhibits 118, 119, and 120. The State explained, "these exhibits are simply illustrative of the position that the Doctor believes the victim's arms and legs were tied in for 10 to 12 hours after death. ... It explains the marks on the body and in illustrating the Doctor's testimony so that the jury could understand it." Because the Exhibits were offered to illustrate the events described, their admission was proper. Experiments based upon reasonably similar circumstances-as here-do not need to exactly depict the event. Exhibits 118, 119, and 120 were offered to explain and illustrate Dr. Groben's testimony, and as such were appropriately admitted.

*1079 (3) The expert opinion regarding the lividity patterns was relevant.

Hall argues that the expert opinion regarding the lividity patterns was irrelevant. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." I.R.E. 401 (2004). "All relevant evidence is admissible except as otherwise provided by these rules or by other rules applicable in the court of this state." I.R.E. 402 (2004). "The question of whether evidence is relevant is reviewed de novo, while the decision to admit relevant evidence is reviewed for an abuse of discretion." State v. Shutz , 143 Idaho 200 , 202, 141 P.3d 1069 , 1071 (2006).

Dr. Groben's expert opinion was admitted to support the State's theory regarding "the method in which [Hall] has used the piece of clothing [which] explains the livor patterns on the legs, arms and torso." Moreover, the State explained, "It demonstrates, first off, the continued confinement of the person, whether or not the assailant knew she was dead or not. I think it's part of the course of the crime, and it's the sort of thing that courts traditionally permit so that the jury has an opportunity to see the flow of the crime." The condition of the victim's body, including the condition after death, is relevant. See State v. Leavitt , 116 Idaho 285 , 290-91, 775 P.2d 599 , 604-05 (1989) (holding that the defendant having removed the sexual organs of animals was relevant because of the mutilation of the victim's body). Here, the district court perceived the matter as discretionary and acted in accordance with applicable legal standards in admitting the evidence. Dr. Groben's testimony was relevant in determining the severity of the crime and the manner in which it was committed. The district court did not abuse its discretion by allowing its admission.

(4) The reenactment photos were not unfairly prejudicial.

Hall argues that the reenactment photos were unfairly prejudicial. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." I.R.E. 403 (2004). "[W]here allegedly inflammatory evidence is relevant and material as to an issue of fact, the trial court must determine whether the probative value is substantially outweighed by the danger of unfair prejudice." State v. Winn , 121 Idaho 850 , 853, 828 P.2d 879 , 882 (1992). "The district court's ruling that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice may be overturned only for an abuse of discretion." State v. Labelle , 126 Idaho 564 , 567, 887 P.2d 1071 , 1074 (1995).

As stated above, photographs of a murder victim may be admitted to aid the jury in arriving at a "fair understanding of the evidence." Winn , 121 Idaho at 853 , 828 P.2d at 882 . "The fact that the photographs depict the actual body of the victim and the wounds inflicted on the victim and may tend to excite the emotions of the jury is not a basis for excluding them." Id . Additionally, "[t]he fact that certain evidence is horrifying and gruesome, is not in and of itself sufficient reason for exclusion." Leavitt , 116 Idaho at 290 , 775 P.2d at 604 .

Exhibits 118, 119 and 120 were necessary to fully explain Dr. Groben's testimony regarding his theory about the lividity patterns on Ms. Henneman's body. As discussed above, the evidence is relevant and probative because it illustrates the position of Ms. Henneman's body at or around the time of her death. The three photographs depicting different views of Ms. Henneman's body did not "depict the same scene" as Hall argues, but showed the lividity patterns on the top and on each side of her body. "The jury is entitled to have an accurate picture of all the circumstances, and although such information may be gruesome in nature it is necessary to make an intelligent fact finding decision." Id . Here, the three reenactment photos illustrated Dr. Groben's testimony, and were not unfairly prejudicial. The district court perceived the matter as discretionary, acted in accordance with applicable legal standards, and reached its conclusion *1080 through an exercise of reason. While the evidence is prejudicial, it was not unfairly prejudicial because the jury was entitled to a complete picture of the evidence related to the crime. The prejudice produced by the pictures, while not insubstantial, did not substantially outweigh the probative value of illustrating the position of Ms. Henneman's body at or around the time of her death, as this position may have been important in determining the time and cause of death and the degree of depravity involved in the commission of the crime. Thus, the district court did not abuse its discretion in determining that the reenactment photos were not unfairly prejudicial. The district court did not err in admitting Exhibits 118, 119, and 120, or in allowing Dr. Groben to testify about them. Hall's claims regarding these exhibits fail the harmless error test.

b. The prosecuting attorney did not engage in misconduct by presenting the testimony of Dr. Groben and the reenactment photos.

Hall argues that it was misconduct for the State to present Dr. Groben's testimony regarding the lividity patterns and the positioning of the body, and to seek admission of the reenactment photos. However, no objection was made at trial. "Where prosecutorial misconduct was not objected to at trial, Idaho appellate courts may only order a reversal when the defendant demonstrates that the violation in question qualifies as fundamental error." State v. Perry , 150 Idaho 209 , 226, 245 P.3d 961 , 978 (2010). Fundamental error requires that there be an "error that violates one or more of the defendant's constitutional rights; the error must plainly exist; and the error must not be harmless." State v. Hall , 161 Idaho 413 , 423, 387 P.3d 81 , 91 (2016). "[E]very defendant has a Fourteenth Amendment right to due process and it is axiomatic that a fair trial in a fair tribunal is a basic requirement of due process." Perry , 150 Idaho at 224 , 245 P.3d at 976 (internal quotations omitted). However, the existence of properly admitted evidence does not violate that constitutional right. The expert witness testimony and the reenactment photos were properly admitted and Hall's constitutional right to a fair trial was not violated.

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

Hall contends that jury instructions 13 and 13A impermissibly reduced the State's burden of proof. Hall did not object to the jury instructions.

"Whether jury instructions fairly and adequately present the issues and state the applicable law is a question of law over which this Court exercises free review." State v. Shackelford , 150 Idaho 355 , 373, 247 P.3d 582 , 600 (2010) (quoting State v. Humpherys , 134 Idaho 657 , 659, 8 P.3d 652 , 654 (2000) ). "The invited error doctrine precludes a criminal defendant from 'consciously' inviting district court action and then successfully claiming those actions are erroneous on appeal." State v. Abdullah , 158 Idaho 386 , 420, 348 P.3d 1 , 35 (2015). "It has long been the law in Idaho that one may not successfully complain of errors one has acquiesced in or invited. Errors consented to, acquiesced in, or invited are not reversible." Id . at 420-21, 348 P.3d at 35 -36 (quoting State v. Owsley , 105 Idaho 836 , 838, 673 P.2d 436 , 438 (1983) ); see also State v. Dunlap , 155 Idaho 345 , 379, 313 P.3d 1 , 35 (2013) (applying invited error to a capital case).

Here, at the jury instruction conference, the State suggested that changes be made to Instruction 12 because it was not clear on first-degree murder elements. After a brief delay, the court adopted some modifications. The court removed Instruction 12 and added 13A to give "the elements of first degree murder and [to give the jury] instructions about what to do if they do not find the elements of first degree murder have been proven beyond a reasonable doubt." After discussing the remaining instructions, the court provided the updated versions of Instructions 13 and 13A to counsel. At this point, Hall's counsel stated there was no objection to the "instructions as constituted." Hall participated in the discussions and alterations of the instructions and ultimately approved both. Thus, any error was invited *1081 error, and is not the proper basis for challenging the jury's verdict on appeal.

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

Hall contends there was insufficient evidence to support his conviction for rape because the State failed to prove beyond a reasonable doubt that Ms. Henneman resisted.

"The only inquiry for this Court is whether there is substantial evidence upon which a reasonable jury could have found that the State met its burden of proving the essential elements of [the crime] beyond a reasonable doubt." State v. Adamcik, 152 Idaho 445 , 460, 272 P.3d 417 , 432 (2012). "The relevant inquiry is not whether this Court would find the defendant to be guilty beyond a reasonable doubt, but whether 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Id . (quoting Jackson v. Virginia , 443 U.S. 307 , 316, 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979) ). "In conducting this analysis, the Court is required to consider the evidence in the light most favorable to the State, and we do not substitute our judgment for that of the jury on issues of witness credibility, weight of the evidence, or reasonable inferences to be drawn from the evidence." Id . ; see also State v. Porter , 130 Idaho 772 , 787, 948 P.2d 127 , 142 (1997) (applying the rule when the evidence is conflicting), and State v. Sheahan , 139 Idaho 267 , 286, 77 P.3d 956 , 975 (2003) (applying the rule when the evidence is circumstantial).

Hall was charged with rape under Idaho Code section 18-6101(3), which required the State to prove beyond a reasonable doubt that he caused his penis to penetrate, however slight, Ms. Henneman's vaginal opening "[w]here she resists but her resistance [was] overcome by force or violence." Resistance "does not require that rape victims resist to their utmost physical ability" and "verbal resistance is sufficient." State v. Jones , 154 Idaho 412 , 420, 299 P.3d 219 , 227 (2013). "The importance of resistance by the woman is simply to show two elements of the crime-the assailant's intent to use force in order to have carnal knowledge, and the woman's nonconsent." Id . at 420, 299 P.3d at 227 (quoting State v. Andreason , 44 Idaho 396 , 397, 257 P. 370 , 371 (1927) ). Additionally, Instruction 25 explained to the jury that "the amount of resistance need only be such as would show the victim's lack of consent to the act."

At trial, Hall's counsel conceded that Ms. Henneman "absolutely" did not consent. This concession was supported by the evidence. Dr. Groben acknowledged that Ms. Henneman's body showed no defensive wounds and there were no medical findings indicating trauma or other evidence of forcible rape, which is generally not found in rape cases involving adult women. However, not only was Hall's DNA found in Ms. Henneman's vagina, but when asked whether she was still alive at the time of intercourse, Hall responded, "Um, I think so. ... Cause I ain't gonna go have sex with no dead person that's for damn sure." Additionally, Ms. Henneman's body was found unclothed, suggesting that the rape and murder were contemporaneous. Ms. Henneman's sister later testified that Ms. Henneman was "very" cautious and "careful," being "especially leery of men" particularly as a flight attendant. Subsequently, Hall's counsel conceded that Ms. Henneman "was a careful woman, she was a cautious woman. She was leery of men. She was friendly, but she wasn't a fool."

Considering the brutal manner in which Ms. Henneman was murdered by strangulation, Hall's DNA being retrieved from her vagina, the condition of her unclothed body, and Hall's concession that he would not have had intercourse with her after the murder, it was reasonable for Hall's counsel to concede that this was not consensual intercourse and for the jury to infer from all of the evidence that Hall forcibly raped Ms. Henneman. Other jurisdictions have held, "the circumstance that defendant strangled [victim] to death strongly evidences lack of consent to sexual intercourse." People v. Story , 45 Cal.4th 1282 , 91 Cal.Rptr.3d 709 , 204 P.3d 306 , 318 (2009). While other scenarios are possible, "the jury was not compelled to so find. The *1082 strangulation strongly suggests absence of consent." Id .

When all of the evidence-particularly the condition of Ms. Henneman's body and the manner in which she was murdered-is considered in a light most favorable to the State, Hall has failed to establish that no rational jury would have found all of the essential elements of rape. There was sufficient evidence to prove forcible rape as it was charged in this case.

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

Hall argues that the accumulation of errors deprived him of his constitutional rights to due process and a fair trial before an impartial jury. Because Hall has failed to demonstrate any error, this Court will not reverse based upon the cumulative error doctrine. "[A] necessary predicate to the application of the doctrine is a finding of more than one error." State v. Perry , 150 Idaho 209 , 230, 245 P.3d 961 , 982 (2010).

B. SENTENCING PHASE ISSUES ON DIRECT APPEAL

12. Dunlap and Abdullah are controlling precedent.

Hall argues that the plain language of Idaho Code section 19-2827 requires that the Supreme Court consider all errors at sentencing, including those that were not objected to by defendant and have not been raised by defendant on appeal. Hall further argues that fundamental error review of unpreserved errors in capital cases violates separation of powers principles, denies meaningful appellate review of death sentences required by the Eighth and Fourteenth Amendments of the United States Constitution, and violates his due process rights.

Section 19-2827 provides, in pertinent part:

(a) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Idaho ....

(b) The Supreme Court of Idaho shall consider the punishment as well as any errors enumerated by way of appeal.

In addressing the review required by section 19-2827, this Court has declared that " section 19-2827 requires us to review not only issues preserved by way of objection, but all claims of error the defendant raises on appeal. ... However, our review is not unlimited; nothing in the text of the statute requires us to consider errors not presented by the appellant." State v. Dunlap , 155 Idaho 345 , 362, 313 P.3d 1 , 18 (2013). Accordingly, this Court will "address all of the errors a defendant raises, whether preserved by objection or not, but we will not scour the record in an effort to find errors not identified by the defendant." Id.

The issues raised by Hall are similar to those raised in Dunlap , 155 Idaho at 362 , 313 P.3d at 18 , and identical to those raised in State v. Abdullah , 158 Idaho 386 , 450, 348 P.3d 1 , 65 (2015). In Abdullah , this Court unequivocally reaffirmed the standard elucidated in Dunlap :

Abdullah raises nearly identical arguments as the defendant in Dunlap regarding the standard of review for unpreserved errors in capital cases. He argues that the application of the fundamental error standard in capital cases (1) disregards the plain language of Idaho Code section 19-2827, which requires the Court to review "all claims of error the defendant raises on appeal" in a capital case ... (2) violates separation of powers principles; (3) violates Eighth Amendment and Fourteenth Amendment principles of meaningful appellate review of death sentences; and (4) violates his due process rights. These arguments are similar or identical to those raised by Dunlap .... Thus, this Court has considered the[ ] arguments raised by Abdullah numerous times throughout the Dunlap case. Upon our reconsideration-again-of these arguments in favor of revisiting the Dunlap decision, we are unpersuaded. This Court reaffirms that the standard of review for unpreserved errors in capital cases is the fundamental error standard and the standard of review for *1083 preserved errors in capital cases is the harmless error standard.

Abdullah , 158 Idaho at 450 , 348 P.3d at 65 (emphasis added). By raising identical issues as those previously raised, Hall invites this Court to revisit prior decisions and second-guess established reasoning. "[S]tare decisis dictates that we follow [controlling precedent], unless it is manifestly wrong, unless it has proven over time to be unjust or unwise, or unless overruling it is necessary to vindicate plain, obvious principles of law and remedy continued injustice." State v. Grant , 154 Idaho 281 , 287, 297 P.3d 244 , 250 (2013). We decline to do so. The standards of review elucidated in Dunlap and Abdullah remain controlling law.

13. The statutory aggravating circumstances in Idaho Code sections (9)(e), (9)(f), and (9)(h) are not unconstitutionally vague and section 19-2515(9)(g) was properly submitted to the jury.

Hall attacks each of the four aggravating circumstances the jury concluded were present in the commission of the murder. He contends that three of the statutory aggravators, set forth in Idaho Code sections 19-2515(9)(e), (9)(f), and (9)(h), are unconstitutionally vague because they fail to provide the sentencing authority with sufficient guidance to avoid the arbitrary and capricious application of capital punishment in violation of the Eighth Amendment. Hall further contends that the district court erred in submitting the other aggravator, found in Idaho Code section 19-2515(9)(g), to the jury because it was the basis for his first-degree murder conviction. These contentions will be addressed in turn.

"Constitutional questions are reviewed de novo." Dunlap , 155 Idaho at 377 , 313 P.3d at 33 . The Eighth Amendment, as interpreted in Furman v. Georgia , 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), "mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia , 428 U.S. 153 , 188, 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976). Thus, "[a]n Eighth Amendment claim based upon vagueness examines whether the challenged aggravating circumstance, together with any limiting instruction, adequately channels the discretion of the sentencing body in order to prevent the imposition of an arbitrary and capricious sentence." State v. Leavitt , 121 Idaho 4 , 5, 822 P.2d 523 , 524 (1991).

Hall complains that the following aggravating circumstances in section 19-2515(9) are unconstitutionally vague:

(e) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.

(f) By the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life. ...

....

(h) The defendant, by prior conduct or conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.

This Court has adopted the following definition for "heinous, atrocious and cruel":

It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

State v. Osborn , 102 Idaho 405 , 418, 631 P.2d 187 , 200 (1981) (internal quotations and citations omitted). "Exceptional depravity" has been defined as confined to situations where "depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence." Id.

In *1084 Maynard v. Cartwright , 486 U.S. 356 , 363-64, 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988), the United States Supreme Court held that an Oklahoma aggravating circumstance-that the murder be "especially heinous, atrocious, or cruel"-did not give sufficient guidance to the jury in capital sentencing. Accordingly, the Supreme Court held the aggravator was unconstitutionally vague under the Eighth Amendment. Id. However, if the statutory language defining the aggravating circumstance is vague, it can still pass constitutional muster if the statute contains a limiting construction that gives sufficient guidance to the sentencing authority. State v. Pizzuto , 119 Idaho 742 , 772, 810 P.2d 680 , 710 (1991) (discussing Godfrey v. Georgia , 446 U.S. 420 , 428, 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980) ).

Section 19-2515(9)(e)'s language tracks some of the language in the Oklahoma statute condemned by Maynard , but it also includes a limiting construction: "manifesting exceptional depravity." This limiting construction and the aggravating circumstance as a whole have repeatedly been interpreted by this Court as constitutionally sufficient. Osborn , 102 Idaho at 418 , 631 P.2d at 200 ; see also Leavitt , 121 Idaho at 6 , 822 P.2d at 525 ; State v. Lankford , 116 Idaho 860 , 877, 781 P.2d 197 , 214 (1989).

Hall argues that the "exceptional depravity" language is not a meaningful limiting construction, and was determined to be unconstitutionally vague by the Eighth Circuit Court of Appeals in Moore v. Clarke , 904 F.2d 1226 (8th Cir.1990). Moore dealt with whether the phrase "manifested exceptional depravity by ordinary standards of morality and intelligence" in a Nebraska statutory aggravating circumstance violated the Eighth Amendment. Id. at 1228 . The Eighth Circuit concluded that this phrase was facially unconstitutional and that the Nebraska Supreme Court had not provided adequate direction in the construction of the phrase to limit the discretion of the sentencing body and minimize the risk of arbitrary application of the death sentence. Id. at 1229 .

The aggravating circumstance in section 19-2515(9)(e) -that the murder was "especially heinous, atrocious or cruel, manifesting exceptional depravity"-was determined constitutional by this Court after Moore was decided. Leavitt , 121 Idaho at 6 , 822 P.2d at 525 . Additionally, in 2004, the Ninth Circuit determined that the limiting construction provided by this Court for Section 19-2515(9)(e) passed constitutional muster. Leavitt v. Arave , 383 F.3d 809 , 835-37 (9th Cir. 2004) [hereinafter Arave for the Ninth Circuit case Leavitt v. Arave , Leavitt for the Idaho Supreme Court case State v. Leavitt ].

Hall argues that section 19-2515(9)(e) was determined constitutional by this Court when judges were involved in capital sentencing, but the analysis changes when juries are involved, because they are less sophisticated and experienced. Admittedly, this Court's determinations in Leavitt and Lankford relied on the capacity of judges to understand the law and interpret that language in a consistent way. Leavitt , 121 Idaho at 6 , 822 P.2d at 525 ; Lankford , 116 Idaho at 877 , 781 P.2d at 214 . However, the identity of the sentencing authority was not an issue in Osborn , when the terms of section 19-2515(9)(e) were defined and the limiting construction was adopted, nor was it mentioned when the Ninth Circuit approved this Court's construction in Arave . Osborn , 102 Idaho at 417 -18 , 631 P.2d at 199 ; Arave , 383 F.3d at 835 -37 . As indicated above, the statutory aggravating circumstance in section 19-2515(9)(e) has been determined constitutional time and time again. Hall has provided no basis, principled or otherwise, to challenge this authority. There was no error in the use of this aggravator.

Hall also challenges the language in Idaho Code section 19-2515(9)(f) as unconstitutionally vague. The aggravating circumstance in section 19-2515(9)(f), as indicated above, is that "[b]y the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life." This circumstance has also been repeatedly determined constitutional-most notably by the United States Supreme Court in Arave v. Creech , 507 U.S. 463 , 471-77, 113 S.Ct. 1534 , 123 L.Ed.2d 188 (1993). Hall contends that the shift from judge to jury sentencing requires revisiting this issue, even in light of this Court's rejection of this argument in Dunlap and Abdullah .

*1085 Dunlap , 155 Idaho at 377 , 313 P.3d at 33 ("We hold that the utter disregard aggravator is not rendered unconstitutional by the change from judge to jury sentencing."); Abdullah , 158 Idaho at 463 , 348 P.3d at 78 ("We reaffirm Dunlap 's holding that the utter disregard aggravator with a limiting construction is not void for vagueness under the Eighth Amendment."). We disagree. We decline to revisit these issues, as they were properly resolved in Dunlap and Abdullah .

Hall also challenges the constitutionality of the aggravating circumstance found in section 19-2515(h), that "the defendant, by prior conduct or conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society." He argues that this aggravator overlaps with section 19-2515(9)(e)'s heinous, atrocious and cruel language such that a jury would have difficulty separating them in sentencing. Accordingly, he argues that this Court's approval of the propensity aggravator in State v. Creech , 105 Idaho 362 , 370, 670 P.2d 463 , 471 (1983), should be revisited because juries are now involved in sentencing.

In Creech , this Court declared:

it cannot be asserted that the "propensity" circumstance could conceivably be applied to every murderer coming before a court in this state. We would construe "propensity" to exclude, for example, a person who has no inclination to kill but in an episode of rage, such as during an emotional family or lover's quarrel, commits the offense of murder. We would doubt that most of those convicted of murder would again commit murder, and rather we construe the "propensity" language to specify that person who is a willing, predisposed killer, a killer who tends toward destroying the life of another, one who kills with less than the normal amount of provocation. We would hold that propensity assumes a proclivity, a susceptibility, and even an affinity toward committing the act of murder.

105 Idaho at 370-71, 670 P.2d at 471 -72 . In 2015, this Court noted: "we have upheld the propensity aggravator, when combined with [the Creech ] limiting construction, against challenges that it is vague or that it unconstitutionally lowers the burden of proof." Dunlap v. State , 159 Idaho 280 , 299, 360 P.3d 289 , 308 (2015). Similarly, the federal district court for the District of Idaho has repeatedly determined that the propensity aggravator with the Creech limiting construction is sufficiently narrow to channel the sentencer's discretion and avoid arbitrary application of the death sentence. Beam v. Paskett , 744 F.Supp. 958 , 964 (D. Idaho 1990) aff'd in part, rev'd in part on other grounds , 966 F.2d 1563 (9th Cir. 1992) ; see also Creech v. Hardison , 2010 WL 1338126 at *21 (D. Idaho 2010) (explaining that the federal district court has repeatedly affirmed the constitutionality of Idaho's propensity aggravator with the limiting construction). The advent of jury sentencing does not alter the constitutional vagueness analysis because of the clarity of the limiting construction in Creech and the strength of the subsequent pronouncements by this Court and the federal district court that the propensity aggravator is not unconstitutionally vague. Indeed, in Beam , the federal district court noted that the propensity aggravator is "less susceptible to an arbitrary and capricious application than the other challenged sentencing factors" because of the limiting construction in Creech . Beam , 744 F.Supp. at 964 . Juries are capable of differentiating a person predisposed to killing from a person who happens to kill in a fit of passion. We reaffirm that the propensity aggravator in section 19-2515(9)(h) is not unconstitutionally vague.

Finally, Hall argues that the felony-murder aggravator in section 19-2515(g) violates the Eighth and Fourteenth Amendments because it does not meaningfully narrow the class of persons eligible for the death penalty in cases where the defendant is convicted on a felony-murder theory.

In Lowenfield v. Phelps , 484 U.S. 231 , 244, 108 S.Ct. 546 , 98 L.Ed.2d 568 (1988), the United States Supreme Court declared that "[t]o pass constitutional muster, a capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." (internal quotations omitted). But *1086 the Supreme Court also noted that this narrowing function could be accomplished by jury findings in either the sentencing phase or the guilt phase. Id. at 244-45 , 108 S.Ct. 546 .

This Court addressed this argument in State v. Wood , 132 Idaho 88 , 102-03, 967 P.2d 702 , 716-17 (1998) and concluded that "[t]he Idaho Legislature has narrowed the class of murders that may be punished by death in I.C. §§ 18-4003 and 18-4004. The fact that the ... aggravator in I.C. § 19-2515 duplicates an element of first degree murder in I.C. § 18-4003 does not violate any constitutional standard." Essentially, this Court determined in Wood that the "narrowing function" required by the U.S. Constitution was performed by the legislature in limiting the class of murderers eligible for the death penalty in Idaho Code sections 18-4003 and 18-4004. Wood , 132 Idaho at 103 , 967 P.2d at 717 . Hall argues that Wood was wrongly decided. He points to the United States Supreme Court's characterization of Idaho law as broadly defining the class of murderers eligible for capital punishment in Arave v. Creech , 507 U.S. 463 , 475, 113 S.Ct. 1534 (1993), and a Nevada Supreme Court case, McConnell v. State , 120 Nev. 1043 , 102 P.3d 606 , 624 (2004), that held that a felony-murder aggravator could not be used to qualify a murderer for the death sentence where the murderer had been convicted on a felony murder theory because it "fail[ed] to genuinely narrow the death eligibility of felony murderers and reasonably justify imposing death on all defendants to whom it applies." This argument is unavailing.

The United States Supreme Court has proclaimed:

To render a defendant eligible for the death penalty in a homicide case ... the trier of fact must convict the defendant of murder and find one "aggravating circumstance" (or its equivalent) at either the guilt or penalty phase. The aggravating circumstance may be contained in the definition of the crime or in a separate sentencing factor (or in both) .... [T]he aggravating circumstance must meet two requirements. First, the circumstance may not apply to every defendant convicted of murder; it must apply only to a subclass of defendants convicted of murder. Second, the aggravating circumstance may not be unconstitutionally vague.

Tuilaepa v. California , 512 U.S. 967 , 971-72, 114 S.Ct. 2630 , 129 L.Ed.2d 750 (1994) (internal citations omitted) (emphasis added). Regardless of the United States Supreme Court's observation that first-degree murder in Idaho was broadly defined, the felony murder aggravating circumstance in section 19-2515(9)(g) fulfills the test pronounced in Tuilaepa . Tuilaepa allows the aggravating circumstance to be contained in the definition of the crime, or the aggravating circumstance (or both)-as it was in this case for Hall. It also requires that the aggravating circumstance perform a narrowing function, or in other words, apply only to a subclass of murderers. This is the prong Hall contends is violated in Idaho by section 19-2515(9)(g). However, the felony murder aggravator in section 19-2515(9)(g) does meet this requirement-it applies only to those murders which are committed in the perpetration of "arson, rape, robbery, burglary, kidnapping or mayhem." This language may apply to many murders, but it certainly does not apply to every first-degree murder-which is all the narrowing required by Tuilaepa . Hall may disagree with this Court's interpretation in Wood , but it was and is constitutional. We reaffirm our decision in Wood .

14. The grand jury's consideration of aggravating circumstances did not violate Hall's constitutional rights.

The initial indictment charging Hall with the murder of Ms. Henneman did not contain any aggravating circumstances. Later, when the same grand jury reconvened to hear evidence connecting Hall to the murder of a woman in the foothills (Cheryl Hanlon), the State also asked them to approve an Indictment Part II in this case, which included the four alleged aggravating circumstances. After deliberating, the grand jury returned an indictment charging Hall with the foothills murder and finding the presence of several aggravating circumstances in that murder. They also approved the Indictment Part II in this case.

*1087 Hall argues that the grand jury's consideration of the two cases concurrently, which included very similar aggravating circumstances, violated his constitutional right to an individualized determination of the presence of the aggravators in each case. To make this argument, Hall conflates and entangles several constitutional rights. He argues that the notice requirement in Article I, Section 8 of the Idaho Constitution, the notice and jury trial requirements of the Sixth Amendment as interpreted in Ring v. Arizona , 536 U.S. 584 , 609, 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), and the Eighth Amendment prohibition of the infliction of cruel and unusual punishment were all violated by the grand jury's concurrent consideration of the aggravating circumstances in this case and in the foothills murder case. He also argues that because the aggravating circumstances must be heard by the jury, they are essentially elements of the crime and must be proven beyond a reasonable doubt.

"The requirements of the Idaho and U.S. Constitutions are questions of law, over which this Court has free review." State v. Draper , 151 Idaho 576 , 598, 261 P.3d 853 , 875 (2011). Article I, Section 8 of the Idaho Constitution provides, in pertinent part: "[n]o person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor ...." The Sixth Amendment to the United States Constitution provides, in part: "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State wherein the crime shall be been committed ... and to be informed of the nature and cause of the accusation ..."

In Ring , the United States Supreme Court determined that in capital cases, when the finding of one aggravator has the potential to increase the penalty for the crimes, the Sixth Amendment right to a jury trial dictates that the jury be involved in determining the aggravators applicable to the defendant-and thus which sentence should be imposed. 536 U.S. at 609 , 122 S.Ct. 2428 . The Eighth Amendment prohibition against cruel and unusual punishment, made applicable to the states through the Fourteenth Amendment, has been interpreted to require "particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death." Woodson v. North Carolina , 428 U.S. 280 , 303, 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976) (emphasis added).

Hall argues that some combination of these rights-or all of them in aggregate-were violated by the grand jury's concurrent consideration of the aggravating factors in each case because the grand jury did not conduct an individualized determination of whether the aggravating circumstances were established by the evidence presented in this case only.

With regard to whether Hall was given constitutionally adequate notice of the four aggravators alleged in this case, Abdullah provides guidance. This Court determined in Abdullah that statutory aggravators in capital cases do not need to be listed in the indictment, nor does the state need to provide the defendant with the factual basis underlying the aggravators. Abdullah , 158 Idaho at 460-61 , 348 P.3d at 75 -76 . Rather, the Court determined that Idaho Code section 18-4004A, which requires notification of intent to seek the death penalty within 60 days after entry of a plea and a listing of the statutory aggravating circumstances relied upon in seeking the death penalty, provided defendants with constitutionally adequate notice of the intent to seek the death penalty and the aggravating circumstances alleged, under both the Idaho and United States Constitutions. Id . Here, although the initial indictment did not contain the alleged aggravating circumstances, the State's notice of intent to seek the death penalty, filed just two weeks after approval of the initial indictment, did enumerate the four aggravating circumstances upon which the State would rely in seeking the death penalty. Under Abdullah , this was constitutionally adequate notice of the aggravating circumstances in this case. Hall asks this Court to revisit and overrule Abdullah on this point, but provides no reasoned basis for doing so. We reaffirm our holding in Abdullah regarding the constitutionally-required *1088 notice of aggravating circumstances in capital cases.

Hall correctly notes that the Eighth Amendment requires a particularized inquiry at sentencing in capital cases. He points to Woodson for this proposition. In Woodson , the United States Supreme Court declared:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemmed from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

This Court has previously recognized that "(f)or the determination of sentences, justice generally requires consideration of more than the particular acts by which a crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Pennsylvania ex rel. Sullivan v. Ashe , 302 U.S. 51 , 55, 58 S.Ct. 59 , 61, 82 L.Ed. 43 (1937). Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York , 337 U.S., at 247-249, 69 S.Ct. at 1083-1084 ; Furman v. Georgia , 408 U.S., at 402 -403 , 92 S.Ct. at 2810-2811 (Burger, C. J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles , 356 U.S. [86], at 100, 78 S.Ct. [590] at 597 [ 2 L.Ed.2d 630 (1958) ] (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

Woodson , 428 U.S. at 303-04 , 96 S.Ct. 2978 . The import of Woodson is that the character of the offender and the circumstances of the offense be considered in imposing the death penalty. Woodson thus refers to procedure and evidence in the sentencing phase, not to grand jury deliberations. For after the indictment containing aggravating circumstances is returned by the grand jury-if the defendant is convicted-the jury would hear evidence and determine the appropriate sentence. Woodson primarily concerns these jury deliberations, not those of the grand jury prior to trial. The grand jury does not decide whether the death penalty is imposed. It only decides whether the evidence supports the aggravating circumstances alleged. Thus, it is immaterial-for Eighth Amendment purposes-that the grand jury considered aggravating circumstances in the Hanlon murder in the same session in which it considered aggravating circumstances in this case.

The Supreme Court's interpretation of the Sixth Amendment's jury-trial requirement in Ring does not mandate a contrary result. Ring pertains to jury sentencing after conviction-it has little application to grand jury deliberations. Additionally, Hall's claim that statutory aggravators alleged in the indictment must be proven beyond a reasonable doubt has been raised and resolved in previous cases. Dunlap , 155 Idaho at 375 , 313 P.3d at 31 (" Ring did not elevate those statutory aggravating circumstances into elements of a crime .... Only our state legislature has that authority, and it did not make aggravating circumstances elements of the crime.") (quoting Porter v. State , 140 Idaho 780 , 784, 102 P.3d 1099 , 1103 (2004) ).

Thus, the grand jury deliberations and the Indictment Part II returned in this case did not violate Hall's notice or due process rights under the Idaho or United States Constitutions. Nor were they violative of his Sixth, Eighth, or Fourteenth Amendment rights.

15. Admission of the photograph of Hall (Exhibit 149) was harmless error.

Hall argues that the district court erred in admitting a photograph of him *1089 in the sentencing phase because the photo is prejudicial and looks like a mugshot. When the State moved to have the photo admitted, Hall objected. Outside the presence of the jury, defense counsel discussed his objection in detail:

DEFENSE COUNSEL: Judge, it portrays him in a jail outfit and it's a demeaning type of picture.

THE COURT: May I please see the-bailiff, can I see the photo?

DEFENSE COUNSEL: I don't think there is any reason for it other than to show him in that kind of pose and the witness has already identified him. I don't see what the purpose of this is.

THE COURT: There's no-just to describe, this is a, what, 8 and a half by 11 color photo of the front of his face showing short hair and a goatee of sorts and a-at least the beginnings of a mustache. And then it shows some orange collar, if you will, of a shirt of some sort. It does not show any booking data underneath-under-a template underneath his face or anything. Do you want to be heard further, sir?

DEFENSE COUNSEL: Well, I mean your description makes it sound benign but-

THE COURT: Well, you tell me what's not benign about it? Well, I'm trying to describe it for the record because I think it's important for the ruling.

DEFENSE COUNSEL: The problem is he's dressed in jail clothing. I don't think it takes a whole lot to put that together by jurors. And the whole purpose of it is to show him in this demeaning position. It's a mug shot.

Thereafter, there was discussion between counsel and the court. The prosecutor argued that the photo was illustrative of the witness' testimony and showed Hall as he looked when she knew him. The defense argued that the witness had already identified Hall in the presence of the jury and that identity was not an issue in the case so its admission would serve no purpose and would introduce unfair prejudice against Hall. The court further described the photo for the record, and observed that "there's nothing in the Court's observation of this picture that makes this demeaning, or makes it appear like a mug shot." The court also noted that Hall had already been convicted of murder, so it was "not sure" what prejudice Hall would suffer if the jurors identified the clothing in the picture as jail garb. Shortly thereafter, the Court overruled the objection and allowed admission of the photo, which was identified as Exhibit 149.

On appeal, Hall argues the district court admitted the photo in error because it was irrelevant, and even if relevant, its probative value was outweighed by the danger of unfair prejudice. Hall bases his arguments on Idaho Rules of Evidence 401, 402, and 403. The State argues that the Rules of Evidence do not apply to sentencing hearings, and that even if they did, the photo was relevant and not unfairly prejudicial. If there was error, the State argues that it was harmless. Hall argues that the Rules of Evidence should apply to sentencing hearings, and that the error in admitting the photo was not harmless, because it was shown to the jury six times in the State's closing argument slideshow presentation.

"The question of whether evidence is relevant is reviewed de novo, while the decision to admit relevant evidence is reviewed for an abuse of discretion." State v. Sheldon , 145 Idaho 225 , 228, 178 P.3d 28 , 31 (2008). "This Court determines whether the district court abused its discretion by examining: (1) whether the court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently within the applicable legal standards; and (3) whether the court reached its decision by an exercise of reason." State v. Parker , 157 Idaho 132 , 138, 334 P.3d 806 , 812 (2014) (internal quotations omitted).

"The Idaho Rules of Evidence, except those relating to privileges, do not apply to sentencing hearings." State v. Jeppesen , 138 Idaho 71 , 75, 57 P.3d 782 , 786 (2002). "Instead, the admission of evidence in capital sentencing proceedings is governed by Idaho Code § 19-2515 (6), which provides that 'the state and the defendant shall be *1090 entitled to present all relevant evidence in aggravation and mitigation.' " State v. Dunlap , 155 Idaho 345 , 375, 313 P.3d 1 , 31 (2013). "Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable that it would be without the evidence." Sheldon , 145 Idaho at 228 , 178 P.3d at 31 (internal quotations omitted).

Here, except for defense counsel's objection questioning the purpose of the photograph, the discussion relating to the admission of the photograph primarily focused on its potential prejudicial effect rather than its relevance. Because the Rules of Evidence do not apply to sentencing hearings, which are governed by Idaho Code section 19-2515(6), only the relevance analysis has any place here. Defense counsel was right to question the admission of the photograph. The State argued that the photo showed Hall when the witness knew him (which was different than he looked at the time of her testimony) and that the photo was illustrative of her testimony. But, as defense counsel correctly noted, identity was not an issue in the case and the witness identified Hall for the court prior to the State moving for the admission of the photograph. The photo thus did not make any fact issue more or less probable by its admission, and as such, it was not relevant to the sentencing determination. Because the court's analysis focused on the potential prejudice of the photo, and did not adequately address defense counsel's relevance objection-which is the key inquiry under section 19-2515(6) -it abused its discretion. Admission of the photograph was error. The question then becomes whether the error was harmless.

"To hold error harmless, the Court must declare their belief, beyond a reasonable doubt, that there was no reasonable possibility that [the] evidence complained of contributed to the conviction [or the sentence of death]." State v. Payne , 146 Idaho 548 , 574, 199 P.3d 123 , 149 (2008) (internal quotations omitted).

Because Hall had been convicted of first-degree murder, the jury was empowered to determine whether he would receive life in prison or the death sentence. I.C. §§ 19-2515, 18-4004. The question is thus whether the admission of the unflattering picture contributed to the jury's decision to sentence Hall to death. Hall correctly notes that the picture was presented to the jury six times in the State's closing argument at the end of the sentencing hearing. However, even in light of its repetitive presentation to the jury, it is unlikely that one photo, depicting Hall's blank face, his neck, and the tops of his shoulders contributed to his being sentenced to death. The trial and the sentencing hearing contained evidence of the many gruesome details of this case, including: the sweater tied tightly around Ms. Henneman's neck, the pathologist's determination that she died by strangulation, the presence of semen in her vaginal cavity, Hall's history of drug use and violence against women, and his DNA connection to the semen found in Ms. Henneman's body. These details, in concert with many others, were most likely the facts that pushed the jury to impose the death sentence, not the admission of one unflattering photograph. For these reasons, we hold that the court's admission of the photograph was error, but it was harmless error.

16. Hall's Sixth Amendment right to effective, conflict-free counsel was not violated.

At the sentencing hearing, the State sought to call April Sebastian as a witness. Prior to her being called as a witness, Hall's counsel indicated that he also represented Ms. Sebastian and that there was a potential conflict. When asked specifically about the nature of the conflict, defense counsel responded, "I mean I know things about [Ms. Sebastian]." A discussion ensued in which it was noted that defense co-counsel had also represented Ms. Sebastian (so he could not question her without similar conflict) and that delay in questioning the witness could damage her participation in a rider program. When the court was seeking a solution to this problem defense counsel said, "I don't want to delay this. No, I'm just going to go ahead and question her myself and if I'm creating ethical problems for myself then I'm creating them. But I'm just telling you *1091 for the record that she's my current client." The State then indicated the facts it wished to elicit from Ms. Sebastian and indicated its opinion that very little would need to be elicited on cross-examination, so defense counsel could likely proceed. The court then said, "I'm willing to consider all options. I know you want to go ahead, [defense counsel], you said that. But-there's always the appearance of a potential conflict. But in terms of an actual conflict I really don't know if there is one unless you tell me there is one." After more discussion, the court said, "I will do this any way you want, [defense counsel]." After a little more discussion, defense counsel said, "Let's just do it." Shortly thereafter, the jury was brought back in, Ms. Sebastian was called as a witness, and defense counsel cross-examined her.

Hall argues that his counsel's performance was affected by the perceived conflict in that his counsel was not as vigorous or thorough in cross-examination as he would have otherwise been. Hall also argues that the court erred by failing to inquire further into the nature of defense counsel's conflict.

The Sixth Amendment to the United States Constitution provides that each defendant is entitled to the assistance of counsel for his defense. U.S. Const. amend. VI. This right is violated when defendant's counsel is ineffective. Mickens v. Taylor , 535 U.S. 162 , 166, 122 S.Ct. 1237 , 152 L.Ed.2d 291 (2002). Generally, to successfully allege ineffective assistance of counsel, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668 , 694, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Only in very limited circumstances is it appropriate to "forgo individual inquiry into whether counsel's inadequate performance undermined the reliability of the verdict." Mickens , 535 U.S. at 166 , 122 S.Ct. 1237 . These limited circumstances include when "counsel is denied entirely or during a critical stage of the proceeding" or "may also arise when the defendant's attorney actively represent [s] conflicting interests." Id. Thus, when a conflict of interest situation arises, "[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan , 446 U.S. 335 , 348, 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980). "[I]n determining whether a conflict exists, trial courts are entitled to rely on the representations made by counsel." State v. Severson , 147 Idaho 694 , 704, 215 P.3d 414 , 424 (2009).

"[A] trial court has an affirmative duty to inquire into a potential conflict whenever it knows or reasonably should know that a particular conflict may exist," Id. at 703 , 215 P.3d at 423 (internal quotations omitted). "[A] trial court's examination of the potential conflict must be thorough and searching and should be conducted on the record." Id. at 704 , 215 P.3d at 424 . "The adequacy of the trial court's inquiry is a constitutional issue over which we exercise free review." Id.

Here, the first question is whether there was an actual conflict of interest in defense counsel's concurrent representation of Hall and Ms. Sebastian. That determination rests in large part on analysis that only defense counsel can conduct. See Cuyler , 446 U.S. at 346 , 100 S.Ct. 1708 ("[T]rial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel" in determining the presence of a conflict.). Indeed, at one point in the colloquy, the district court noted, "there's always the appearance of a potential conflict. But in terms of an actual conflict I really don't know if there is one unless you tell me there is one." Although this Court has noted that "Idaho Courts look to the standards set forth in the Idaho Rules of Professional Conduct" to determine whether an actual conflict of interest exists, many of the analyses appropriate under the rules require specific and complete information about the nature and depth of each client's representation by counsel, which is information only counsel would have. Here, when asked directly if there was an actual conflict in his representation of Hall and Ms. Sebastian, defense counsel answered, "No. I think it's more the nature of-I mean I'm very familiar with [Ms. Sebastian's] background." Soon thereafter, defense counsel indicated *1092 to the court-twice-that it wished to move forward with questioning and cross-examination of Ms. Sebastian. Defense counsel-the party in the best position to make the call-did not view the concurrent representation as an actual conflict of interest. Based on these representations by defense counsel, the district court decided to move forward with questioning Ms. Sebastian. The district court's reliance on defense counsel's assessment of the presence of actual conflict was not error, nor was its connected decision to proceed with the examination of Ms. Sebastian. Severson , 147 Idaho at 705 , 215 P.3d at 425 .

Further, if an actual conflict did exist, there is little evidence that defense counsel's performance was adversely affected by the conflict. Hall argues that defense counsel treated Ms. Sebastian kindly which boosted her credibility and failed to elicit an unfavorable Department of Corrections disciplinary report (Ms. Sebastian was in custody) or refer to the possibility that Ms. Sebastian may receive a benefit from the State in exchange for her testimony. It is true that defense counsel was polite and deferential to Ms. Sebastian, but this was defense counsel's style generally. The State presented three other witnesses that testified about their interactions with Hall and his behavior toward women in the years preceding Ms. Henneman's death. Defense counsel's cross-examination of these witnesses was not especially vigorous or unkind. Rather, it was patient and polite, but did not fail to elicit facts unfavorable to the witness or her story. The same is true of his examination of Ms. Sebastian. Counsel was deferential, but drew out unfavorable facts-such as her history of theft and conviction for forgery. He did not raise the disciplinary report, but there is no evidence he had knowledge of that report. He did not discuss a potential deal between the State and Ms. Sebastian, but Ms. Sebastian appeared in her orange jail jumpsuit and discussed in direct examination the reason she was incarcerated. She also discussed the circumstances of her case with defense counsel on cross-examination-including that she was serving on a rider and wanted to change her life. This is testimony from which the jury could infer the potential for bias. Thus, there was no actual conflict nor was defense counsel's performance adversely affected by the presence of conflict; Hall's Sixth Amendment right to effective assistance of counsel was not violated.

Hall also argues that the court's inquiry into the nature of the conflict was insufficient under the Sixth Amendment. Specifically, he argues that the court should have asked defense counsel whether the things he "knew" about Ms. Sebastian were admissible facts that could undermine her credibility. This argument is unavailing. As indicated above, the Sixth Amendment requires the court's inquiry to be "thorough and searching," so the question is whether the court's inquiry met that bar. When the court was notified of the potential for conflict, it inquired at length into the nature of defense counsel's relationship with Ms. Sebastian. Then it asked defense counsel point blank about whether there was an actual conflict in defense counsel's representation of both Hall and Ms. Sebastian, to which defense counsel answered, "I mean I know things about [Ms. Sebastian]." The court then explored other options, including defense co-counsel questioning the witness (he also had a conflict), asking another member of the public defender's office to come and cross-examine her or delaying the witness. During this exchange, the court asked defense counsel repeatedly what he would have the court do. After some hesitation, defense counsel indicated that he wished to proceed and cross-examine Ms. Sebastian himself, regardless of whether he was creating "ethical problems for [him]self." The court then asked defense counsel again whether there was an actual conflict and provided several alternative methods of questioning the witness. But defense counsel persisted, denying the presence of an actual conflict and telling the court, "Let's just do it." Thereafter, the jury was brought back in, Ms. Sebastian took the stand and defense counsel cross-examined her. This entire exchange was conducted on the record. Although the court did not press defense counsel for details about the nature of information he knew about Ms. Sebastian, it did inquire-repeatedly-about whether there was an actual conflict in defense counsel's concurrent *1093 representation and repeatedly offered various options for handling the conflict, if it did exist. This inquiry was constitutionally sufficient. It was thorough and searching and designed to "ease [a] defendant's dissatisfaction, distrust, or concern" as our precedents require. Severson , 147 Idaho at 704 , 215 P.3d at 424 (internal quotations omitted). For the foregoing reasons, we hold that Hall's Sixth Amendment right to conflict-free counsel was not abrogated.

17. The court did not err in admitting evidence of Hall's prior convictions or in admitting post-crime character evidence.

At sentencing, the State presented the testimony of N.O., the statutory rape victim; the detective assigned to the statutory rape case; and the attorney who prosecuted the statutory rape case. The State also presented testimony from witnesses who interacted with Hall after the commission of Ms. Henneman's murder, including two of Hall's former girlfriends (Ms. Deen and Ms. Dunaway) whom he dated in 2001 and 2002, Hall's former neighbor (Ms. McCusker) who lived next to him in 2002, Hall's acquaintance (Ms. Sebastian) whom he knew in 2001 and 2002 who had mutual friends, and a department of corrections employee who provided summary evidence of Hall's charges and how "points" are determined in the correctional system.

Hall contends that much of the pre-crime evidence offered in the sentencing hearing was not relevant to the propensity aggravator and was admitted in violation of his constitutional rights. He also argues that testimony from the post-crime witnesses was irrelevant to the propensity aggravator and any "non-statutory" aggravators, inadmissible under Idaho Rules of Evidence 403 and 404, and admitted in violation of Hall's Eighth and Fourteenth Amendments rights. He further argues the testimony of the rape victim violated his Sixth and Fourteenth Amendment rights. Each contention will be addressed in turn.

a. Relevancy of pre-crime evidence.

First, Hall contends that the pre-crime evidence offered by the state was not relevant to the "propensity to commit murder" required by the propensity aggravator in Idaho Code section 19-2515(9)(h). He contends that his prior convictions for grand theft, escape, and statutory rape are not relevant to proving that he had the propensity to murder because they do not show a proclivity to kill or a tendency toward violence. We disagree.

The Idaho Rules of Evidence are not applicable in sentencing; instead, Idaho Code section 19-2515(6)'s relevance standard governs. State v. Dunlap , 155 Idaho 345 , 375, 313 P.3d 1 , 31 (2013) ; I.C. § 19-2515(6) (2004) ("At the special sentencing proceeding, the state and the defendant shall be entitled to present all relevant evidence in aggravation and mitigation." (emphasis added) ). This Court reviews relevancy determinations de novo. State v. Sheldon , 145 Idaho 225 , 228, 178 P.3d 28 , 31 (2008). The "propensity aggravator" as contained in Idaho Code 19-2515 in 2000 (the year of the crime) and in 2004 (the year of the trial) read: "The defendant, by prior conduct or conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society." I.C. 19-2515(h)(8) (2000) ; I.C. 19-2515(9)(h) (2004).

Hall's prior convictions evinced an escalation in criminal behavior, that when combined with the egregious circumstances of the statutory rape of N.O. provide a sufficient basis for concluding that Hall had a propensity to commit murder that would "probably constitute a continuing threat to society." I.C. § 1902515(9)(h) (2003). Hall was first convicted of grand theft in 1991 for possession of stolen property. In 1992, he was convicted of the statutory rape of N.O. Many of the circumstances of that rape were strikingly similar to the evidence in this case. N.O. testified that after only knowing Hall for a few hours, he removed her from a chair by her neck, choked her into unconsciousness, tore her clothes off, tied her up with them, raped her both orally and anally, and threatened to kill her by beating her with a hammer. She only escaped by running away from him at an opportune time. Hall was initially charged with the forcible rape of N.O. The charges were only reduced to statutory *1094 rape because N.O. was too fragile and vulnerable to testify. In 1995, while serving his sentence for rape, Hall was convicted of escape. Thereafter, his sentence for rape was increased. He was released in December of 1999, only about 10 months before Ms. Henneman's death.

In State v. Porter , 130 Idaho 772 , 790, 948 P.2d 127 , 145 (1997), this Court recognized that "physically abusive tendencies" may be the basis for finding the presence of the propensity aggravator. In Porter , the defendant was charged with brutally beating and murdering his girlfriend. Id. at 780 , 948 P.2d at 135 . Because he had not previously attempted to murder someone or been charged with or committed murder, the defendant argued that there was not sufficient evidence to support the propensity aggravator. Id. at 790 , 948 P.2d at 145 . The Court however, determined that evidence that he had severely beaten several former girlfriends demonstrated that "he was not able to control his actions and may have beaten to death any one of [the former girlfriends]" and supported the finding of the propensity aggravator. Id.

Here, the violence exhibited by Hall in the perpetration of the rape of N.O. and its striking similarity to the evidence surrounding Ms. Henneman's death, taken together with the escalation in general lawlessness of his prior convictions-particularly that of escape-was sufficient for the jury to determine that Hall "had the propensity to commit murder that would probably constitute a continuing threat to society." I.C. § 19-2515(9)(h). Hall's prior convictions were relevant to determination of the propensity aggravator because they provided a complete picture of his tendencies and the pattern that emerged over time. As such, the district court did not err in admitting Hall's prior convictions.

b. Admissibility of post-crime evidence.

Next, Hall contends that because the testimony from his former girlfriends, neighbor, and acquaintance presented at sentencing concerned events occurring after commission of the crime, their testimony was irrelevant to the propensity aggravator and admitted in error. He also argues that admission of this evidence renders his death sentence unconstitutional on the basis of Brown v. Sanders , 546 U.S. 212 , 220-21, 126 S.Ct. 884 , 163 L.Ed.2d 723 (2006).

As indicated above, the propensity aggravator in effect at the time of Hall's trial considered only "prior conduct or conduct in the commission of the crime at hand" in determining whether a capital defendant exhibited the requisite propensity. I.C. § 19-2515(9)(h) (2003). This Court exercises "free review over statutory interpretation because it is a question of law." State v. Owens , 158 Idaho 1 , 3, 343 P.3d 30 , 32 (2015). Constitutional issues are also freely reviewed. State v. Abdullah , 158 Idaho 386 , 417, 348 P.3d 1 , 32 (2015).

Here, the district court excluded evidence of the Hanlon murder from sentencing because it was not "prior conduct or conduct in the commission of the murder at hand" and was thus irrelevant to prove the propensity aggravator. But it allowed the testimony of two of Hall's former girlfriends, his former neighbor and his acquaintance, which concerned events and interactions the witnesses had with Hall in 2001 and 2002-one or two years after the commission of the crime at issue. The plain language of section 19-2515 as it was then written provided only for evidence of conduct prior to or concurrent with the crime. I.C. § 19-2515(9)(h) (2004). Thus, any evidence of conduct occurring after the crime at issue was not probative of propensity and was irrelevant and inadmissible for that purpose. However, admission of the post-crime evidence was not constitutional error.

The Supreme Court of the United States made it clear in Zant v. Stephens , 462 U.S. 862 , 878, 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983) that it is not unconstitutional for a jury to consider non-statutory aggravating circumstances when deciding whether to impose the death penalty. The Zant Court explained that the Constitution does not require the jury to ignore aggravating evidence that will help them make an individualized determination of whether the death penalty *1095 is appropriate based on the character of the defendant:

Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.

Zant , 462 U.S. at 878 -79 , 103 S.Ct. 2733 (emphasis in original) (citations omitted). The Supreme Court has explained that the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the defendant's character when deciding whether to inflict the death penalty:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemmed from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

This Court has previously recognized that "(f)or the determination of sentences, justice generally requires consideration of more than the particular acts by which a crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Pennsylvania ex rel. Sullivan v. Ashe , 302 U.S. 51 , 55, 58 S.Ct. 59 , 61, 82 L.Ed. 43 (1937). Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York , 337 U.S., at 247-249, 69 S.Ct. at 1083-1084 ; Furman v. Georgia , 408 U.S., at 402 -403 , 92 S.Ct. at 2810-2811 (Burger, C. J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles , 356 U.S., at 100 , 78 S.Ct. at 597 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

Woodson , 428 U.S. at 303-04 , 96 S.Ct. 2978 . Woodson v. North Carolina , 428 U.S. 280 , 303, 96 S.Ct. 2978 (1976).

The more difficult argument to unpack is whether Idaho's death penalty statute allowed the jury to consider non-statutory aggravating evidence. We hold that it does.

Beginning in State v. Creech , 105 Idaho 362 , 369-70, 670 P.2d 463 , 470-71 (1983), this Court recognized the admissibility of non-statutory aggravating circumstances in death penalty cases. We held:

The court is not limited as to the circumstances it may find in aggravation to those listed [as statutory aggravators]. Thus, that section of the court's findings denominated "5. Facts and Arguments Found in Aggravation," although including circumstances not statutorily listed and not expressly found beyond a reasonable doubt, is not error. I.C. § 19-2515(a) permits the court, upon the suggestion of either party that there are circumstances which might properly be considered in aggravation or mitigation, to hear those circumstances. That language strongly suggests that a judge should hear all relevant evidence which either party desires to set forth. Such an interpretation is not contradicted by I.C. § 19-2515(f), which merely lists the statutory aggravating circumstances, at least one of which must exist beyond a reasonable doubt if the ultimate sanction of death is to be imposed.

Creech , 105 Idaho at 369 , 670 P.2d at 470 .

Justice Horton correctly points out in his dissent that Idaho's death penalty statute *1096 has been amended since Creech and that the language identified in Idaho Code section 19-2515(a) no longer exists. Section 19-2515(a) at the time Creech was decided stated:

After a plea or verdict of guilt, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral or written suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.

I.C. § 19-2515(a) (1977) (emphasis added). While this particular provision no longer exists, the language emphasized is still part of Idaho's death penalty statute. At the time Hall was sentenced, Idaho Code section 19-2515(2) mandated that a special sentencing proceeding be held "for the purpose of hearing all relevant evidence and arguments of counsel in aggravation and mitigation of the offense":

If a person is adjudicated guilty of murder in the first degree, whether by acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court sitting without a jury, and a notice of intent to seek the death penalty was filed and served as provided in section 18-4004A, Idaho Code, a special sentencing proceeding shall be held promptly for the purpose of hearing all relevant evidence and arguments of counsel in aggravation and mitigation of the offense. Information concerning the victim and the impact that the death of the victim has had on the victim's family is relevant and admissible. Such information shall be designed to demonstrate the victim's uniqueness as an individual human being and the resultant loss to the community by the victim's death. Characterizations and opinions about the crime, the defendant and the appropriate sentence shall not be permitted as part of any victim impact information. The special sentencing proceeding shall be conducted before a jury unless a jury is waived by the defendant with the consent of the prosecuting attorney.

I.C. § 19-2515(5)(a) (2004) (emphasis added). Subsection (6) provided that the state and the defendant shall be entitled to present all relevant evidence in aggravation and mitigation:

At the special proceeding, the state and the defendant shall be entitled to present all relevant evidence in aggravation and mitigation . Disclosure of evidence to be relied on in the sentencing proceeding shall be made in accordance with Idaho criminal rule 16. Evidence admitted at trial shall be considered and need not be repeated at the sentencing hearing.

I.C. § 19-2515(6) (2004) (emphasis added). The issue to be decided here is whether "relevant evidence in aggravation" is limited to the aggravating factors identified in section 19-2515(8).

The plain language of the statute does not limit the aggravation evidence that could be presented to the jury to the statutory aggravators identified in section 19-2515(9). Idaho's death penalty statute repeatedly refers to the aggravating circumstances which must be found to impose the death penalty as "statutory" aggravators. See I.C. §§ 19-2515(3)(b), (4), (7)(a), (7)(b), (7)(c), (8)(a), (8)(b), (9) (2003) ; see also I.C. §§ 19-2515(c), (f), (h) (2000). The use of the term "statutory" is significant because it implicitly recognizes that there are other, non-statutory considerations that the Legislature understands must be considered when determining an individualized sentence. See, e.g., I.C. §§ 19-2515(3)(b), (4), (7)(a), (7)(b), (7)(c), (8)(a), (8)(b), (9) (2003) ; see also I.C. §§ 19-2515(c), (f), (h) (2000). To put it plainly, if it wanted to restrict the evidence presented to that which is relevant only to the statutory aggravators, the Legislature could have said something like "all relevant evidence in support of the statutory aggravators and mitigation," but it did not. In fact, there are other provisions in the death penalty statute which make it clear that the Legislature intended the special sentencing proceeding to be the forum where the jury could consider a wide array of information about the defendant and the crime to determine whether the imposition of the death penalty would be just in each particular case. For example, in *1097 section 19-2515(5)(a), immediately following the sentence which states that the purpose of the special sentencing proceedings is to hear "all relevant evidence in aggravation and mitigation of the offense," the statute provides that victim impact statements are relevant and admissible:

If a person is adjudicated guilty of murder in the first degree, whether by acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court sitting without a jury, and a notice of intent to seek the death penalty was filed and served as provided in section 18-4004A, Idaho Code, a special sentencing proceeding shall be held promptly for the purpose of hearing all relevant evidence and arguments of counsel in aggravation and mitigation of the offense. Information concerning the victim and the impact that the death of the victim has had on the victim's family is relevant and admissible.

I.C. § 19-2515(5)(a) (emphasis added). There is also a provision which provides that the evidence presented during the guilt phase of the trial shall be considered by the jury and does not need to be repeated during the sentencing proceeding. See I.C. § 19-2515(6).

Hall also argues that the post-crime character evidence offered by the State at sentencing was unfairly prejudicial in violation of Idaho Rules of Evidence 403 and 404. This argument based on Ring was raised in Dunlap , to which the Court responded:

This argument is not persuasive. ... " Ring did not elevate those statutory aggravating circumstances into elements of a crime, nor did it create a new crime. ... Ring merely held that a state cannot impose the death penalty unless its sentencing procedures have the jury, not the judge, determine the existence of a statutory aggravator."

Dunlap , 155 Idaho at 375 , 313 P.3d at 31 (quoting Porter v. State , 140 Idaho 780 , 784, 102 P.3d 1099 , 1103 (2004) ). Hall has not raised new issues of fact, nor has he made any new legal arguments. Unsupported claims are not sufficient to overcome controlling precedent. State v. Delling , 152 Idaho 122 , 131, 267 P.3d 709 , 719 (2011) ("Having previously decided this question, and being presented with no new basis upon which to consider the issue, we are guided by the principle of stare decisis to adhere to the law as expressed in our earlier opinions."). The State's sentencing evidence was not subject to the rules of evidence; thus, it could not have been excluded on the basis of reference to the rules. There was no error on this basis.

Hall also argues that the State's character evidence violated his Eighth and Fourteenth Amendment rights because it deviated from a capital sentencing scheme meant to narrow the class of defendants eligible for the death penalty. This argument has no merit. As indicated in section 13, this Court determined in Wood that the constitutionally required narrowing function is provided in the definition of first-degree murder in Idaho, not necessarily in capital sentencing procedures. State v. Wood , 132 Idaho 88 , 103, 967 P.2d 702 , 717 (1998). Thus, evidentiary issues in sentencing do not interfere with this narrowing function.

c. Testimony of the statutory rape victim.

Finally, Hall argues that admission of testimony relating to the statutory rape case violated his due process rights to a fair trial under the Sixth and Fourteenth Amendments. For various reasons, including the passage of time, misplaced evidence, unavailable witnesses, and inadequate discovery, Hall alleges he was denied a full and fair opportunity to defend against this testimony. However, no constitutional violation occurred. Hall received timely discovery relating to N.O.'s testimony and had the opportunity to interview N.O. prior to her testimony. Defense counsel acknowledged receipt of discovery prior to the hearing and did not complain about discovery timeliness at the hearing. Neither party had access to the presentence report in the N.O. case, as both erroneously believed it had been destroyed. Further, defense counsel indicated that he had an opportunity to speak with N.O. prior to her testimony, that "she was too distraught to talk to" but that he was prepared to cross-examine her. The Sixth Amendment *1098 does not require that receipt of discovery and the opportunity to interview unfavorable witnesses occur under the best possible circumstances. Rather, it requires that defendants receive a fair trial. In re Murchison , 349 U.S. 133 , 136, 75 S.Ct. 623 , 99 L.Ed. 942 (1955) ("A fair trial in a fair tribunal is a basic requirement of due process."). "The right of an accused in a criminal trial is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi , 410 U.S. 284 , 294, 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973). The State presented N.O.'s testimony at sentencing to provide evidence of the propensity aggravator-as the brutal manner in which N.O. was raped contained facts strikingly similar to the facts of this case and could be used to show a pattern or build-up of depraved behavior leading to Ms. Henneman's murder. Hall had already been convicted of the statutory rape of N.O.-Hall's guilt on that charge was not at issue here. The issue is whether Hall had a fair opportunity to defend against the State's allegation that the facts of the N.O. rape provided a basis from which the propensity aggravator could be found. He did. As indicated above, he received the appropriate discovery, he had the opportunity to speak with N.O. prior to her testimony and he indicated at the sentencing that he was ready to proceed with the examination of N.O. Hall's right to a fair trial was not abrogated on this basis.

18. The court did not err by warning Hall that presenting evidence or argument on future dangerousness would open the door to the Hanlon murder evidence.

Hall argues that the court erred in ruling that any discussion by defense counsel in opening, closing, or with witnesses of Hall's future dangerousness, even when incarcerated, would open the door to admission of the Hanlon murder evidence. Hall contends that this ruling impermissibly limited his ability to present mitigation evidence and argument.

As indicated above, evidentiary determinations in capital sentencing are governed by Idaho Code section 19-2515(6), which allows the admission of "all relevant evidence in aggravation and mitigation." Relevant evidence is "[e]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." State v. Pepcorn , 152 Idaho 678 , 688, 273 P.3d 1271 , 1281 (2012). Relevancy determinations are reviewed by this Court de novo. State v. Shutz , 143 Idaho 200 , 202, 141 P.3d 1069 , 1071 (2006).

Throughout the trial and the sentencing phase, the district court diligently excluded all evidence relating to the subsequent murder of Cheryl Hanlon. Consistent with this stance, the court also repeatedly warned defense counsel that any reference to Hall's dangerousness or future risk to the public would open the door to admission of the Hanlon evidence. When called upon, the court also specified that its ruling included references to Hall's dangerousness while incarcerated. The court thus determined that the Hanlon murder evidence was not relevant, but would become relevant if the defense made Hall's dangerousness an issue. This ruling was not erroneous. The Hanlon murder evidence, if admitted, would have been devastatingly prejudicial to Hall and would have significantly interfered with his ability to receive a fair trial. But it was very applicable to determining what kind of future risk he posed to the general public. In short, if any evidence or argument was presented on the issue of Hall's dangerousness, the Hanlon murder evidence would be relevant and admissible. The district court was correct in its ruling and appropriately cautious in its repeated warnings to defense counsel. The fact that Hall had to choose between opening the door to very prejudicial evidence and presenting certain kinds of mitigating evidence does not create error. See McGautha v. California , 402 U.S. 183 , 213, 91 S.Ct. 1454 , 28 L.Ed.2d 711 (1971) ("The criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid *1099 requiring him to choose.") (internal quotations and citations omitted), overruled on other grounds sub nom. Crampton v. Ohio , 408 U.S. 941 , 92 S.Ct. 2873 , 33 L.Ed.2d 765 (1972) ; see also Bonin v. Calderon , 59 F.3d 815 , 840 (9th Cir. 1995) (determining that requiring a defendant to choose between testifying in mitigation or staying silent when his testimony could be used in subsequent cases did not violate his Fifth or Eighth Amendment rights). We affirm the ruling of the district court.

19. The court did not err in admitting Detective Hess' testimony.

Hall asserts that the court erred in allowing the admission of hearsay evidence in the examination of Detective Hess, the detective who investigated the statutory rape case, at the sentencing hearing. He contends that Hess testified about what N.O. told him, and that these statements were offered for the truth of the matter asserted.

Again, Hall contends that the Rules of Evidence should apply to sentencing hearings. But they do not. In addition to the above-cited case authority for this rule, the Rules of Evidence themselves indicate that they do not apply to sentencing proceedings. I.R.E. 101(e)(3) ("These rules, other than those with respect to privileges, do not apply in the following situations: ... sentencing ...."). Instead, as indicated above, relevancy is the sole inquiry in admissibility determinations. I.C. § 19-2515(6). The testimony at issue was not objected to below, so the fundamental error standard applies on appeal. State v. Perry , 150 Idaho 209 , 225, 245 P.3d 961 , 977 (2010).

The evidence relating to the statutory rape was presented to prove the propensity aggravator. Thus, Detective Hess' observations and conversations with the victim, N.O., were important in providing evidence as to the circumstances and nature of the crime and to determining whether on the basis of those (and other) facts, Hall had a "propensity to commit murder that would probably constitute a continuing threat to society." I.C. § 19-2515(9)(h). Detective Hess' testimony was relevant and thus admissible under the applicable standard in Idaho Code section 19-2515(6). Hall's rights were not violated in the admission of Detective Hess' testimony, nor was there any error.

20. The court did not err in applying the notice of requirements of Idaho Code section 18-207(4) to sentencing proceedings.

Prior to trial the State sought discovery of the opinions of any mental condition experts that Hall intended to call at trial or sentencing. The State also filed a motion seeking access to Hall so that the State's mental condition experts could conduct their own psychological testing. The State based its motions on Idaho Code section 18-207(4) which sets forth various notice and access requirements that must be complied with in order for a defendant to introduce mental condition evidence. The district court granted the State's motions, ruling that if Hall intended to present mental condition evidence at sentencing, he had to comply with the requirements of 18-207(4). Hall contends this was error and that the application of section 18-207(4) to capital sentencing proceedings violates the Eighth and Fourteenth Amendments because it deprives him of the right to present mitigation evidence.

Section 18-207(4) reads, in pertinent part:

(4) No court shall, over the objection of any party, receive the evidence of any expert witness on any issue of mental condition, or permit such evidence to be placed before a jury, unless such evidence is fully subject to the adversarial process in at least the following particulars:

(a) Notice must be given at least ninety (90) days in advance of trial, or such other period as justice may require, that a party intends to raise any issue of mental condition and to call expert witnesses concerning such issue ....

(b) A party who expects to call an expert witness to testify on an issue of mental condition must, on a schedule to be set by the court, furnish to the opposing party a written synopsis of the findings of such expert, or a copy of a written report. ...

(c) Raising an issue of mental condition in a criminal proceeding shall constitute a waiver of any privilege that might otherwise be interposed to bar the production of evidence on the subject and, upon request, *1100 the court shall order that the state's experts shall have access to the defendant in such cases for the purpose of having its own experts conduct an examination in preparation for any legal proceeding at which the defendant's mental condition may be in issue. ...

The plain text of section 18-207(4) does not limit its application to trial. It begins with a statement that " [n]o court ...," which is taken to mean no sentencing court as much as it means no trial court (emphasis added). The lack of specificity grants the statute broad application; by its plain language it is applicable to all courts, unless stated otherwise. Additionally, the requirement in subsection (a) that notice be given "ninety (90) days in advance of trial, or other such period as justice may require" refers to trial, but not to the exclusion of sentencing. Id . It merely sets a deadline for disclosure, it does not indicate which proceeding that disclosure is applicable to. Subsection (a) provides that the deadline could also be "such other period as justice may require," which further underlines that the reference to trial is solely for the purpose of establishing a timeline, not for limiting the application of the section. Id. Similarly, the language in subsection (c) "[r]aising an issue of mental condition in a criminal proceeding " does not limit the application of the requirements to trial. I.C. § 18-207(4)(c) (emphasis added). Thus, by its plain language, Idaho Code section 18-207(4) does not have limited application; it is as applicable to sentencing as it is to trial. The district court did not err in concluding that Idaho Code section 18-207(4) applies to sentencing proceedings.

Turning to Hall's contention that 18-207(4)'s application to capital sentencing proceedings violated his constitutional rights, the Eighth and Fourteenth Amendments require that defendants have the opportunity to present, and the sentencing authority has the opportunity to consider, all relevant mitigating evidence at sentencing. Lockett v. Ohio , 438 U.S. 586 , 604, 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978) ; see also State v. Payne , 146 Idaho 548 , 570, 199 P.3d 123 , 145 (2008). Hall argues that his Eighth Amendment right to present mitigating evidence is burdened by the requirements of section 18-207(4), because presenting mitigating mental health evidence would waive privileges and expose him to examination by the State's mental health experts. We addressed this same argument in Payne . 146 Idaho at 570-72 , 199 P.3d at 145 -47 . There, this Court determined that requiring the defendant to make a choice between waiving privileges or presenting mitigating evidence did not violate the Eighth or Fourteenth Amendments because it did not bar the mitigating evidence or prevent the defendant from presenting it, it merely required him to make a choice. Id. at 571 , 199 P.3d at 146 . With reference to Bonin , this Court noted that requiring defendants to make choices, even about rights of a "constitutional dimension," does not always violate the Constitution. Id. (quoting Bonin , 59 F.3d at 839 ). Instead, "the threshold question is whether compelling the election impairs to an

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