Appeal from the District Court of the Second Judicial District, State of Idaho, Latah County. Hon. John R. Stegner, District Judge.
The opinion of the court was delivered by: Burdick, Justice
SUBSTITUTE OPINION. THE COURT'S PRIOR OPINION DATED JANUARY 20, 2010, IS HEREBY WITHDRAWN.
Judgment of conviction for first-degree murder, conspiracy to commit first-degree murder, first-degree arson, conspiracy to commit first-degree arson and preparing false evidence, affirmed. Case remanded for resentencing.
Dale Carter Shackelford appeals from his judgment of conviction, based upon jury verdicts finding him guilty of the first-degree murders of Donna Fontaine and Fred Palahniuk, conspiracy to commit first-degree murder, first-degree arson, conspiracy to commit first-degree arson, and preparing false evidence. He also appeals from his sentences of death for first-degree murder, as well as the partial denial of his claims for post-conviction relief. The State cross-appeals, challenging the district court‟s grant of post-conviction relief, which set aside Shackelford‟s death sentences and requires resentencing. We find that any error committed by the district court was harmless, and we therefore affirm on all issues. We affirm the district court‟s order for resentencing on different grounds.
I. FACTUAL AND PROCEDURAL BACKGROUND
Dale Shackelford was convicted of the murders of his ex-wife, Donna Fontaine, and her boyfriend, Fred Palahniuk, which occurred near the Latah County town of Kendrick, Idaho, in May 1999. The State alleged that Shackelford conspired with Martha Millar, Bernadette Lasater, Mary Abitz, Sonja Abitz, and, John Abitz.*fn1 Millar and Lasater worked for Shackelford‟s trucking business, Shackelford Enterprises, in Missouri. The Abitz family lived near the residence where the bodies of Donna and Fred were found. Sonja Abitz was Shackelford‟s fiancée at the time of the murders, and John and Mary Abitz are Sonja‟s parents. The alleged conspirators eventually pled guilty to charges related to the murders.
Shackelford and Donna married in Missouri in December 1995 and the relationship ended in the summer of 1997, with the couple divorcing in November of that year. Donna accused Shackelford of raping her in July 1997, and charges were filed in 1998. In the spring of 1999, Donna developed a relationship with Fred and, on May 28, 1999, the two visited Donna‟s brother, Gary Fontaine, at the home Gary and Donna‟s daughter owned together outside of Kendrick. The morning of May 29, Donna, Fred, and Gary went to the Locust Blossom Festival in Kendrick, where they met John, Mary, and Sonja Abitz.
After leaving the festival, Gary went to the Abitz‟s house, but he left around dark, returned home, noticed Donna‟s pickup in the driveway, and smelled smoke. Gary called the Abitz‟s house and reported that his two-story garage was on fire. Mary, Sonja, Ted Meske (Mary‟s brother), and Shackelford arrived at the fire and various individuals tried to extinguish it, but were unsuccessful.
At 7:40 p.m., Latah County Sheriff Patrol Deputy Richard Skiles was called to investigate the fire at 2168 Three Bear Road. When Skiles arrived at the scene, nearly an hour later, he observed several persons-including Gary Fontaine, Mary Abitz, Sonja Abitz, Brian Abitz (Sonja‟s brother), Ted Meske, and Shackelford-standing near the garage that was completely engulfed in flames. Based upon information obtained from Ted and Shackelford, Deputy Skiles contacted dispatch to have an on-call detective sent "because there was a possibility there could be a suicide victim in the fire." By the time the fire department arrived, the garage had been utterly destroyed. Several hours later, after the fire had been extinguished, two bodies were found in the rubble. The bodies were subsequently identified as the remains of Donna and Fred. At trial, a state fire investigator testified as to his opinion that the fire was arson.
Doctor Robert Cihak conducted autopsies of the remains, which were severely burned. Shotgun pellets were found in Donna‟s right chest region and a bullet was found in the back of her neck. Dr. Cihak opined that the bullet wound was fatal and was inflicted when Donna was still alive. A bullet was also found in Fred‟s body behind the upper breastbone, which Dr. Cihak concluded was the cause of death. Dr. Cihak offered his opinion that Donna and Fred were dead at the time of the fire.
Shackelford was indicted on February 11, 2000, and charged with two counts of first-degree murder, first-degree arson, conspiracy to commit first-degree murder, conspiracy to commit arson, and preparing false evidence. Trial began on October 16, 2000, and concluded December 22, 2000. The jury returned guilty verdicts on all counts charged in the Indictment. Sentencing commenced on August 27, 2001, and, on October 25, 2001, the district court read its Findings of the Court in Considering Death Penalty. As to Donna‟s murder, the court found that the State had proven beyond a reasonable doubt two statutory aggravating factors: I.C. § 19-2515(h)(2) (2000) and I.C. § 19-2515(h)(10) (2000).*fn2 As to Fred‟s murder, the court found the statutory aggravating factor under I.C. § 19-2515(h)(2) (2000). After weighing the mitigating factors against the individual statutory aggravating factors, the court concluded that the mitigating factors were not sufficiently compelling to render the death penalty unjust, and sentenced Shackelford to death for both first-degree murders. Shackelford was also given prison sentences for the other felony offenses. The judgment of conviction was filed November 1, 2001. Shackelford appeals from his convictions.
On April 8, 2005, the district court addressed the parties‟ motions for summary disposition regarding Shackelford‟s petitions for post-conviction relief. The court granted Shackelford sentencing relief, concluding that Ring v. Arizona, 536 U.S. 584 (2002), mandated that the jury conduct the weighing of aggravating and mitigating factors. The court therefore ordered that Shackelford‟s death sentences be set aside. The court then rejected Shackelford‟s other Ring claim that the jury must find any aggravating factors, concluding that the jury‟s verdict established that Shackelford murdered Donna and Fred at the same location and date, thereby establishing the multiple-murder aggravator pursuant to I.C. § 19-2515(h)(2) (2000). The district court concluded that three of Shackelford‟s other post-conviction claims were moot based upon the court‟s decision to provide Shackelford with sentencing relief. All of Shackelford‟s remaining claims were denied. Shackelford‟s notice of appeal and the State‟s notice of cross-appeal were timely filed.
Shackelford raises numerous issues in his brief, asserting errors during both the guilt and sentencing phases of his trial. Additionally, the State cross-appeals the district court‟s decision setting aside Shackelford‟s death sentences. We will first address Shackelford‟s claims as to the guilt phase of his trial, and will then turn to the arguments presented regarding sentencing.
Shackelford contends that the district court erred in admitting into evidence out-of-court statements made by Donna Fontaine, Sonja Abitz, Mary Abitz, and Robin Eckmann.
This Court reviews questions regarding the admissibility of evidence using a mixed standard of review. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). First, whether the evidence is relevant is a matter of law that is subject to free review. State v. Field, 144 Idaho 559, 569, 165 P.3d 273, 283 (2007). Second, we review the district court‟s determination of whether the probative value of the evidence outweighs its prejudicial effect for an abuse of discretion. Stevens, 146 Idaho at 143, 191 P.3d at 221. We determine 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. Id. However, an abuse of discretion may be deemed harmless if a substantial right is not affected. State v. Thompson, 132 Idaho 628, 636, 977 P.2d 890, 898 (1999). "In the case of an incorrect ruling regarding evidence, this Court will grant relief on appeal only if the error affects a substantial right of one of the parties." Obendorf v. Terra Hug Spray Co., 145 Idaho 892, 897, 188 P.3d 834, 839 (2008); I.R.E. 103(a). "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." I.C.R. 52.
b. The admission of Donna Fontaine's out-of-court statements was in error, but that error was harmless.
Shackelford first argues that the district court erred in allowing multiple out-of-court statements made by Donna Fontaine to be introduced under Idaho Rule of Evidence 803(3) because (1) Shackelford did not inject the issue of the possibility of suicide into the case; (2) even if he did somehow inject suicide as an issue, the disputed statements bear marginal, if any, relevance to the issue of whether Donna may have been inclined to commit suicide; and (3) the admission of Donna‟s out-of-court statements expressing her fears of Shackelford was highly prejudicial and the prejudicial effect of such evidence substantially outweighed any probative value.
Conversely, the State maintains that (1) Shackelford‟s statements drove the initial investigation into whether there may have been a suicide victim in the fire; (2) Donna‟s state of mind was not only relevant, but "was integral in understanding a significant issue in the case"; and (3) based upon his own statements expressing his desire to kill Donna, the testimony of his co-conspirators, and the forensic evidence, Shackelford has failed to establish a reasonable possibility that the alleged error associated with the admission of testimony regarding Donna‟s fear contributed to his conviction. We find that the district court abused its discretion in admitting the statements, but the error was harmless.
Six witnesses were allowed to testify as to statements made by Donna expressing her fear that Shackelford was going to harm her. The district court determined that these out-of-court statements were admissible as an exception to the rule against hearsay. Idaho Rule of Evidence 802 states: "Hearsay is not admissible except as provided by these rules or other rules promulgated by the Supreme Court of Idaho." The exception to the hearsay rule under which the district court admitted the evidence in this case is I.R.E. 803(3):
Then existing mental, emotional, or physical condition. A statement of the declarant‟s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant‟s will.
Limited circumstances exist in which statements made by a murder victim to a third party are admissible under I.R.E. 803(3)‟s state of mind exception to the hearsay rule. State v. Garcia, 102 Idaho 378, 382, 630 P.2d 665, 669 (1981).*fn3 The statements may be admitted only after a determination that (1) the declaration is relevant, and (2) the need for and value of such testimony outweighs the possibility of prejudice to the defendant. Id. The district court erred in finding that the out-of-court statements made by Donna were relevant; therefore, we need not address whether the value of the testimony outweighed the possibility of prejudice to the defendant.
Evidence that is ""relevant to a material and disputed issue concerning the crime charged‟" is generally admissible. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008) (quoting State v. Field, 144 Idaho 559, 569, 165 P.3d 273, 283 (2007)). 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; see also Stevens, 146 Idaho at 143, 191 P.3d at 221. Whether a fact is "of consequence" or material is determined by its relationship to the legal theories presented by the parties. State v. Yakovac, 145 Idaho 437, 444, 180 P.3d 476, 483 (2008).
This Court, in State v. Goodrich, recognized four well-defined categories in which a declarant-victim‟s state of mind is relevant because of its relationship to the legal theories presented by the parties: (1) when the defendant claims self-defense as justification for the killing; (2) when the defendant seeks to build his defense around the fact that the deceased committed suicide evidence introduced which tends to demonstrate that the victim made statements inconsistent with a design to take his or her own life is relevant; (3) when the defendant claims the killing was accidental; and (4) when a specific "mens rea" is in issue. 97 Idaho 472, 477 n.7, 546 P.2d 1180, 1187 n.7 (1976).
In State v. Garcia, 102 Idaho 378, 382, 630 P.2d 665, 669 (1981), this Court again referenced the four well-defined categories laid out in Goodrich, and also cited to United States v. Brown, 490 F.2d 758, 767 (D.C. Cir. 1973), for the D.C. Circuit‟s further discussion of the first three categories. Brown describes the category involving the defense theory of suicide as follows: "[W]here a defendant seeks to defend on the ground that the deceased committed suicide, evidence that the victim had made statements inconsistent with a suicidal bent are highly relevant." 490 F.2d at 767. In Garcia, this Court found that the district court had erred in admitting the hearsay testimony of the witness because the defendant‟s defense had not been based on any of the categories laid out in Brown and Goodrich. 102 Idaho at 382-83, 630 P.2d at 669-70.
The United States Supreme Court dealt directly with the issue of evidence of a victim‟s state of mind offered to rebut a defense theory of suicide in Shepard v. United States, 290 U.S. 96 (1933). In Shepard, the Supreme Court found that the victim‟s declaration "Dr. Shepard has poisoned me" was neither admissible as a dying declaration (as the State had argued), nor as evidence of the victim‟s state of mind. Id. at 103. The defendant attempted to show that the victim had "exhibited a weariness of life and a readiness to end it," which gave "plausibility to the hypothesis of suicide." Id. The Court stated:
By the proof of these declarations evincing an unhappy state of mind, the defendant opened the door to the offer by the government of declarations evincing a different state of mind, declarations consistent with the persistence of a will to live. The defendant would have no grievance if the testimony in rebuttal had been narrowed to that point. What the government put in evidence, however, was something very different. It did not use the declarations by Mrs. Shepard to prove her present thoughts and feelings, or even her thoughts and feelings in times past. It used the declarations as proof of an act committed by some one else, as evidence that she was dying of poison given by her husband.
Id. at 103-04 (emphasis added).
In the above-mentioned cases, the relevancy of the state of mind statements was shown through the rebuttal of a defense theory. However, in State v. Radabaugh, this Court did not expressly condition the admission of state of mind evidence on it being offered to rebut a defense theory. 93 Idaho 727, 471 P.2d 582 (1970). Instead, the Court stated that "[e]vidence tending to show the mental state of the victim and ill-feeling or hostility between decedent and defendant is admissible" and since the statement "I‟m scared to death of him" was "probative of the attitudes and feelings (fear) of the victim towards [defendant], it was properly admitted." Radabaugh, 93 Idaho at 731, 471 P.2d at 586. In State v. Goodrich, this Court specified that Radabaugh had recognized that a state of mind statement may be admissible when the "declarant-victim‟s state of mind is relevant to an issue involved in the criminal proceedings." 97 Idaho 472, 477, 546 P.2d 1180, 1185 (1976). Goodrich then laid out the four categories defined above. Thus, when examining relevancy, we look to whether the fact that the statement was made is relevant to a legal theory presented by the parties.
First, to determine whether the statements here were relevant to rebut a defense theory of suicide, we must determine whether there was a defense theory of suicide. The State asserts that Shackelford perpetuated his contention that Donna committed suicide during the course of the investigation and it was his statements that drove the initial investigation. Shackelford argues it was Ted Meske, not him, who first introduced the idea of suicide into the investigation, and Shackelford did not use the theory as a defense at trial.
Shackelford did make statements during the police investigation regarding the possibility that Donna had committed suicide;*fn4 however, we find that those statements were not sufficient to allow rebuttal of a defense theory of suicide. The defense did not present a theory of suicide during the trial itself. Instead, the State offered testimony regarding Shackelford‟s statements during the initial investigation about suicide, and the defense merely offered testimony to show that any mention Shackelford made of suicide during the initial investigation did not affect the investigation in any way. Defense counsel questioned Detective Kurtis Hall who testified that, although police had been informed that there may be a suicide victim in the fire, the investigators treated it as a potential homicide:
A: At that time I didn‟t know if we had a body or not, but it‟s my understanding that any death is treated as a potential homicide until it is established-that we investigate is treated [sic] as a potential homicide until it is established otherwise.
Q: And did you treat it that way?
The record here shows that Shackelford‟s pre-trial comments did not alter any aspect of the criminal investigation. We are not excluding the possibility that a defendant could make statements during a criminal investigation that would create a theory of defense such that the State would find it necessary to offer evidence in their case-in-chief or as rebuttal during trial; however, that has not happened here. Therefore, we hold that the district court erred in allowing the State to introduce Donna‟s out-of-court statements to show that her state of mind was inconsistent with a defense theory of suicide.
Although we find that the district court erred in admitting the out-of-court statements of Donna, we hold that the error did not affect Shackelford‟s substantial rights. Whether an error affected substantial rights in a particular case depends upon a host of factors, including the importance of the witness‟ testimony to the prosecution‟s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution‟s case. State v. Hooper, 145 Idaho 139, 146, 176 P.3d 911, 918 (2007). In State v. Garcia, this Court found that, although the court erred in admitting hearsay testimony that was not based on any of the categories laid out in Brown and Goodrich, any inference of guilt from the victim‟s hearsay statements was outweighed by the defendant‟s own inculpatory admission made to the witness. 102 Idaho 378, 383, 630 P.2d 665, 670 (1981).
Similarly, in this case, any inference of Shackelford‟s guilt that may have stemmed from Donna‟s out-of-court statements was outweighed by testimony regarding Shackelford‟s own statements expressing his desire to kill Donna, along with the testimony of his co-conspirators and the forensic evidence regarding the murders and the arson. First, several witnesses testified as to statements Shackelford made regarding his desire to kill Donna. Donna‟s friend, Suzanne Ninichuck, testified as to two conversations she had with Shackelford in the summer of 1997:
A: [Shackelford] said that Donna was an ugly person and that he was going to destroy her. He was going to destroy her financially, he was going to destroy her professionally. That he was going to destroy her relationships with every friend and every family member and that-he said that she-oh, he said that she had abandoned him up on the mountain.
A: The mountain by their Idaho property. And that she knew that was the worst thing that anybody could do to him was abandon him. And that she deserved-she deserved to die. She deserved to be ruined. . . .
He said that he-he loved her very much. He was-but he couldn‟t live with her. And that she-she was a controlling person, she manipulated people. That-he said he was going to kill her. . . . .
And that he-at that point in time he said, he could kill her and make it look like an accident. And at that time he was driving a truck and he said he could just-he would-he could find her with the truck and kill her with the truck and he could make it look like an accident. . . .
He said if-he said he loved Donna very passionately and there was no other woman that he would ever love as much as Donna, but he couldn‟t live with her and if he couldn‟t live with her nobody would live with her.
James Avery, Donna‟s son, also testified that in the summer of 1997, he heard Shackelford say on two occasions that if Shackelford caught Donna with another man he would kill them both.*fn5
In 1998, Shackelford began a relationship with Martha Millar when the two met while working as long-haul truckers. Millar testified that Shackelford convinced her that she should kill Donna for him:
Q: Ms. Millar, during these months of 1998 when you had this periodic contact with [Shackelford], did he tell you that his ex-wife, Donna, made his life miserable?
Q: Did he tell you that he had to do away with her?
Q: How many times did he say that?
A: I would say out of-one out of ten conversations, I would say about six or seven times.
Q: Alright. Did [Shackelford] tell you that you and he could not have a relationship as long as Donna was around?
Q: Alright. Did [Shackelford] express to you what would happen in your relationship if you did away with Donna Fontaine?
A: He said that I would be his forever.
Q: Alright. The-when [Shackelford] was talking to you about taking care of or doing away with Donna, what was your understanding of what he meant?
A: My understanding was that he wanted to put her six feet under.
After these conversations, Millar spoke to a friend and told her she had come up with an idea in response to Shackelford‟s request to "take care of Donna":
A: Oh, my idea was to cut her brake lines, dismantle, excuse me, her fuel line and put it near a spark plug so it would burst into flames.
Q: And did you talk to [Shackelford] about that idea?
Q: Did you and he discuss where he would be when you did this?
A: He would be far, far away.
A: So that he would have an alibi.
Millar then began working for Shackelford Enterprises in September 1998, and the discussions about killing Donna continued:
Q: Alright. And did [Shackelford] talk to you more in August and September 1998 about Donna Fontaine?
Q: What did he ask you to do?
A: He asks-he asked me if I could do away with her.
Q: Alright. And did he tell you what would happen if you did?
A: He would get me a lawyer and he would get me off. . . . .
Q: In early October of 1998, did you have discussions with [Shackelford] about what you should do in Missouri with regard to Donna?
Q: And what did he ask you to do?
A: He asked me to shoot her. . . . .
Q: Can you tell us, as best you can recall, what [Shackelford] said to you during that conversation?
A: [Shackelford] told me that I should take my gun, put it in my fanny pack, go down to the courthouse, go directly up to her and shoot her. Empty my gun into her and just stand there like a crazy person.
Q: What did he tell you would happen after you stood there like a crazy person?
A: Well, the cop-the police were going to tackle me and I would get off on an insanity plea, which he would pay for the defense.
Q: When he told her to shoot her, did he use an analogy?
Q: So then what happened on Monday, October 5th, 1998?
A: I asked Helen to drop me off in town. . . . She dropped me off by the courthouse, I walked up past Donna‟s office on the opposite side. I crossed the street and she came walking out of her office.
Q: Were you wearing your fanny pack?
Q: Alright. What happened when she came out of her office?
A: She went to the courthouse. She went into the courthouse, she came back out. She went over to the post office. I followed her to the post office. She came out of the post office and I walked right past her, fanny pack opened, hand on the gun ...