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James H. Hairston v. Randy Blades

March 30, 2011

JAMES H. HAIRSTON, PETITIONER,
v.
RANDY BLADES, WARDEN OF THE IDAHO MAXIMUM SECURITY INSTITUTION,*FN1 RESPONDENT.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

The Court previously dismissed several claims in this capital habeas corpus matter as procedurally defaulted or lacking in merit. (Dkt. 125.) Currently before the Court is the parties' briefing on the merits of the remaining claims in the Second Amended Petition. (Dkts. 161, 171.) Also pending is Petitioner's Motion for an Evidentiary Hearing and Petitioner's Motion to Expand the Record. (Dkts. 154, 155.)

The Court has carefully reviewed the record and has considered the parties' written and oral arguments. For the reasons set forth more fully below, the Court will deny Petitioner's motions to develop and present new evidence on selected claims. The Court further concludes that Petitioner is not entitled to habeas relief, and the Second Amended Petition will be dismissed.

BACKGROUND

1. Trial and Sentencing

In 1996, Petitioner James Hairston was sentenced to death for murdering William and Dalma Fuhriman in their home near Downey, Idaho, as he was passing through the area with an acquaintance. The Idaho Supreme Court found the material facts to be as follows:

On January 6, 1996, Hairston and a companion, Richard Klipfel, were driving from Grand Junction, Colorado, to Spokane, Washington. They stopped at the Fuhrimans' ranch because they had run out of money and could not continue their journey. The Fuhrimans invited Hairston and Klipfel into their home and offered to help them find jobs. While Mr. Fuhriman was sitting at a kitchen table looking at a phone book, Hairston shot him in the head and then shot Mrs. Fuhriman. Hairston and Klipfel took $30 in cash, credit cards, and some personal property from the Fuhrimans' home and continued their journey. Hairston and Klipfel pawned some of the Fuhrimans' property. They purchased several items with the credit cards including toy remote control cars, tires, food, gas, and lodging. They also attempted to purchase a Harley Davidson motorcycle and $2500 worth of snowboarding equipment, but the credit card was rejected. Hairston and Klipfel were apprehended together near Clarkston, Washington, three days after the murders.

State v. Hairston, 988 P.2d 1170, 1174-75 (Idaho 1999) (HairstonI).

Based on these events, the State charged Hairston and Klipfel with two counts of first degree murder and one count of robbery. (State's Lodging A-1, pp. 23-24.) The Bannock County Public Defender, Randall Schulthies, was appointed to represent Hairston, and his Chief Deputy, Thomas Eckert, was assigned as co-counsel. (State's Lodging A-1, pp. 31-32.) Early in the case, defense counsel's request for an investigator was granted. (State's Lodging A-1, pp. 38, 75-76.) Although the trial court later ordered the Public Defender's Office to use its own funds to pay for the investigator, it invited counsel to request additional funds "if the budget item is depleted or if there is an objection to this Order." (State's Lodging A-1, p. 162.)

Klipfel eventually pled guilty and testified as a State's witness against Hairston. (State's Lodging A-7, pp. 1713-2000.) Klipfel and Hairston each testified that the other man shot the Fuhrimans. (State's Lodging A-7, p. 1729; A-8, pp. 2256-57.)

On September 6, 1996, the jury found Hairston guilty as charged. (State's Lodging A-8, pp. 2604-05.) The trial court granted defense counsel's request for a psychological evaluation as part of the capital sentencing proceeding, and it appointed Dr. Mark Corgiat to interview Hairston and to submit a report. (State's Lodging A-4, p. 758.)

Two days before the date the sentencing hearing was set to begin, counsel filed a motion to appoint a "mitigation specialist," which is an investigator with particular expertise in compiling a capital defendant's social and mental health history. (State's Lodging A-5, pp. 819-27.) A hearing was held, and the trial court denied the motion after concluding that the current defense team was able to investigate and present mitigating evidence sufficiently without a mitigation specialist. (State's Lodging A-8, pp. 2629-30.) The court granted a brief continuance, and the sentencing hearing began on November 7, 1996. (State's Lodging A-8, p. 2635.)

The State's only witness at the hearing was one of the Fuhrimans' children. (State's Lodging A-8, p. 2649.) In mitigation, Hairston's counsel offered the testimony of Hairston's mother, a fellow inmate named James Martin, and Barbara Garrett, who had been a grandmotherly figure to Hairston in his youth. (State's Lodging A-8, pp. 2695-2668.) The psychologist, Dr. Corgiat, was not called as a mitigation witness. (State's Lodging A-8, pp. 2643-44.)

The trial court found that the State had proven four statutory aggravating circumstances beyond a reasonable doubt: (1) at the time the murder was committed, Hairston also committed another murder, Idaho Code § 19-2515(h)(2) (1995); (2) Hairston exhibited an utter disregard for human life, Idaho Code § 19-2515(h)(6); (3) the murder was committed in the perpetration or attempt to perpetrate robbery and burglary and Hairston killed, intended the killing, or acted with reckless indifference to human life, Idaho Code § 19-2515(h)(7); and (4) Hairston exhibited a propensity to commit murder that will probably constitute a continuing threat to society, Idaho Code § 19-2515(h)(8). (State's Lodging A-5, p. 876.) The trial court also listed mitigating circumstances in eleven separate categories, but it determined that these circumstances "weigh as pebbles in comparison to a boulder with respect to the cold-blooded, calculated, premeditated murders of Duke and Dalma Fuhriman." (State's Lodging A-5, p. 880.)

On November 15, 1996, the trial court sentenced Hairston to death for each count of first degree murder and to fixed life in prison for robbery. (State's Lodging A-8, pp. 889-93.)

2. Post-Conviction and Appeal

Two weeks after Hairston was sentenced to death, the trial court appointed new counsel, David Parmenter, to represent him in Idaho's special pre-appeal post-conviction proceeding applicable to capital cases. (State's Lodging A-5, pp. 904-05.) The court set Parmenter's compensation at a maximum of $10,000, unless counsel demonstrated a need to exceed that amount in "an appropriate motion." (Id.) The court also granted Parmenter's request for an investigator but capped the authorization at $1,000, absent a showing of good cause for additional funds. (State's Lodging B-9, p. 46.)

Parmenter lodged an initial petition for post-conviction relief within 42 days of judgment, as required by Idaho Code § 19-2719, but the court gave him leave to file an amended petition once the court reporter had completed the trial transcripts. (State's Lodging B-9, pp. 6-32, 45.) The transcripts were finished and delivered to the Court and counsel a little under four months after Parmenter had been appointed, and on May 22, 1997, he filed an amended petition. (State's Lodgings A-5, p. 917, B-8, p. 85.) On June 6, two weeks before the date set for an evidentiary hearing, Parmenter submitted a motion to continue the hearing and a motion for the appointment of a mitigation specialist. (State's Lodging B-9, pp. 124-29, 135-37, 155-56, 166-68.) Both motions were denied. (State's Lodging B-9, pp. 169-70.)

The evidentiary hearing proceeded as scheduled on June 19, 1997. (State's Lodging B-11.) Lead trial counsel Randall Schulthies testified, as did Hairston and other witnesses. (State's Lodging B-11.) Hairston's sister also testified extensively about his difficulties during his developmental years. (Id.) At the conclusion of the evidentiary hearing, the trial court denied relief. (State's Lodging B-10, pp. 294-343.)

On appeal, the Idaho Supreme Court affirmed Hairston's convictions, death sentences, and the lower court's order denying post-conviction relief. Hairston I, 988 P.2d at 1192-93.

3. Federal Habeas and Successive State Post-Conviction Proceedings

Hairston next proceeded to federal court, and this Court appointed new counsel, who filed an initial Petition for Writ of Habeas Corpus on December 15, 2000. (Dkt. 23.) Hairston soon returned to state court with a second petition for post-conviction relief, and this Court stayed the federal case. (Dkt. 62.) The state district court dismissed the second petition, and the Idaho Supreme Court later dismissed the appeal. Hairston v. State, 156 P.3d 552 (Idaho 2007) (Hairston II).

This Court lifted the stay, and Hairston filed a Second Amended Petition on January 16, 2007. (Dkts. 92, 99.) Respondent moved to dismiss selected claims as procedurally defaulted or untimely (Dkt. 107), and the Court dismissed, with prejudice, Claims 6 (in part), 7, 10, 11, 12, 14 (in part), 15, 16, 17, 18, 19, 23, 25, 27, and 28 (trial and sentencing portion). (Dkt. 25, p. 40.)

Currently pending are Hairston's motions for new evidentiary development on Claims 13, 20, 21, 26, and 28. (Dkts. 154, 155.) The parties have fully briefed these motions, and they have also submitted final briefing on the merits of all of the remaining claims in the Second Amended Petition. (Dkts. 161, 171, 185.)

The Court has reviewed the parties' briefing and has heard oral argument. It is now prepared to rule on these matters.

LEGAL FRAMEWORK FOR HABEAS REVIEW

The provisions of the Anti-terrorism and Effective Death Penalty Act (AEDPA) are applicable to this case. Under AEDPA, the Court cannot grant habeas relief on any federal claim that the state court adjudicated on the merits unless the adjudication of the claim:

1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

Section 2254(d)(1) has two clauses, each with independent meaning. For a decision to be "contrary to" clearly established federal law, the petitioner must establish that the state court applied "a rule of law different from the governing law set forth in United States Supreme Court precedent, or that the state court confronted a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrived at a result different from the Court's precedent." Williams v. Taylor, 529 U.S. 362, 404-06 (2000). To satisfy the "unreasonable application" clause, the petitioner must show that the state court was "unreasonable in applying the governing legal principle to the facts of the case." Williams, 529 U.S. at 413. A federal court cannot grant relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; the state court's application of federal law must be objectively unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002). The state court need not cite or even be aware of the controlling United States Supreme Court decision to be entitled to AEDPA deference. Early v. Packer, 537 U.S. 3, 8 (2002).

To be eligible for relief under § 2254(d)(2), the petitioner must show that the state court's decision was based upon factual determinations that were "unreasonable in light of the evidence presented in the State court proceeding." Id. Under all circumstances, state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

A petitioner is not entitled to an evidentiary hearing in federal court if he "failed to develop the factual basis of a claim in State court proceedings," unless he can show that (1) the claim relies on a retroactively applicable rule of constitutional law, or (2) that the factual predicate could not have been discovered through the exercise of reasonable diligence, and that the facts underlying the claim would establish by clear and convincing evidence that but for the constitutional error no factfinder would find the petitioner guilty. 28 U.S.C. § 2254(e)(2).

DISCUSSION OF THE REMAINING CLAIMS

Admission of the Colorado Evidence (Claim 1)

Before trial, Hairston filed a motion in limine seeking to exclude all evidence related to a robbery and shooting of a convenience store clerk in Colorado two days before the Fuhrimans were murdered. This evidence included the victim's identification of Hairston as the person who shot her. The police were also able to connect the weapon in the Fuhriman homicides to the robbery.

The trial court changed its mind about the admissibility of the "Colorado evidence" several times. Before trial, it concluded that the State had not sufficiently demonstrated the existence of a plan tying the two events together and that the probative value of the evidence was outweighed by its prejudicial effect. (State's Lodging A-1, p. 174.) The court quickly revisited its ruling and determined that the identity of the shooter would be a material and disputed fact, and the State could introduce the evidence to prove that fact under Idaho Rule of Evidence 404(b). (State's Lodging A-2, pp. 293-300.) At Hairston's request, it reconsidered its decision yet again and precluded the State from introducing the evidence. (State's Lodging A-2, p. 350.)

The court's final ruling came at trial after the State argued that Hairston had opened the door to admissibility of the evidence because of the nature of his defense and because of his testimony on direct examination. The trial court agreed, pointing specifically to Hairston's testimony that "he never shot the gun; never pointed a gun at anyone before; stated that he signed his name to the credit card hoping that the police would find him." (State's Lodging A-4, pp. 751-52.) The court also concluded that the evidence was admissible to impeach Hairston's credibility. (Id. at 752.) As a result, the State presented testimony in its rebuttal case of his involvement in the Colorado incident.

In his first ground for relief, Hairston claims that the admission of the Colorado evidence was so prejudicial that it made his trial fundamentally unfair, violating his right to due process of law under the Fourteenth Amendment. The Court previously reserved its ruling on Respondent's argument that the claim is procedurally defaulted, noting that the procedural issue was complex and that "it appears that this claim might be more easily resolved on the merits under 28 U.S.C. § 2254(d)." (Dkt. 125, p. 8.) The Court now reaffirms that view.

States have wide latitude to develop and apply their own rules of evidence, and federal habeas review of state court evidentiary rulings is limited. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions."). Traditionally, a state court's admission of evidence did not provide a basis for habeas relief "unless it rendered the trial fundamentally unfair in violation of due process." Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (citing Estelle, 502 U.S. at 67-68). In a post-AEDPA case, moreover, "[t]he question is not whether a federal court believes the state court's determination [of the constitutional issue] was incorrect but whether that determination was unreasonable - a substantially higher threshold." Knowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009) (citation omitted).

Given these deferential standards, Hairston cannot show that he is entitled to habeas relief. The trial court did not act arbitrarily in admitting the Colorado evidence. Instead, on several occasions, it carefully weighed the competing arguments under Rules 403 and 404(b) of the Idaho Rules of Evidence. This Court has little doubt that the evidence was damaging to Hairston's defense, but it is equally confident that it was relevant to issues in the case. In particular, Hairston claimed that Klipfel shot the Fuhrimans without Hairston's prior knowledge or assistance. He also implied that Klipfel owned the murder weapon, and he testified that he only used it to shoot at road signs along the highway. The entire theory of defense was that Klipfel was the driving force behind the crimes in the Fuhrimans' home, and that Hairston was in the wrong place at the wrong time. In other words, the defense placed the identity of the Fuhrimans' killer squarely in issue, and the jury had to choose between Hairston or Klipfel.

The Colorado evidence went directly to that issue and formed a powerful narrative to offset the defense. The Fuhrimans were robbed and murdered only two days after the store clerk had been shot in the head. Klipfel claimed that Hairston had a .25 caliber handgun with him in Colorado, the same caliber that was used to kill the Fuhrimans, and an investigator from Colorado testified that a .25 caliber handgun was used in the robbery. The clerk testified that while she did not actually see the gunshot, it came directly from where the person that she identified as Hairston was standing. There was no indication that Klipfel was in the store at the time. When combined, this evidence made it more likely that Hairston, and not Klipfel, also shot the Fuhrimans with the same handgun and that he intended to rob them when he did. Because the evidence was relevant to central issues in the case, the trial court's decision to admit it under Rule 404(b) of the Idaho Rules of Evidence did not render the trial fundamentally unfair, even though the evidence carried a risk of prejudice. See, e.g., Estelle, 502 U.S. at 68 (holding that, because evidence was relevant to an issue in the case, the defendant was not deprived of due process of law); see also Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (noting that the Supreme Court has never held that the admission of even "propensity" evidence would violate due process).

The decision whether to admit the Colorado evidence may have been a close call for the trial court-a call that other courts might make differently if confronted with the same set of facts in the first instance-but it is not this Court's place on habeas review in a post-AEDPA case to quibble about the finer points of Idaho's evidentiary rules, or to second-guess the weighing of the probative value of the evidence against its prejudicial effect. Those are matters of state law. Hairston has not established that the state court's adjudication of this claim was contrary to or an unreasonable application of clearly established federal law, or that it was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

The Prosecutor's Cross-Examination of Hairston (Claim 2)

In his second claim, Hairston contends that his Fifth Amendment privilege against self-incrimination was violated when the prosecutor cross-examined him about whether he had previously used the .25 caliber handgun. He contends that the prosecutor's questions exceed the scope of the direct examination and forced him either to confess to prior crimes or to deny them and risk impeachment with the Colorado evidence. On direct appeal, the Idaho Supreme Court denied this claim, concluding that because Hairston "testif[ied] on direct about the possession of the gun and tangentially its ownership," the trial court did not "abuse its discretion by allowing the prosecution to cross-examine Hairston about his familiarity with the gun." Hairston I, 988 P.2d at 1177.

The clearly established federal law governing this claim is derived largely from Brown v. United States, 356 U.S. 148 (1958). There, the United States Supreme Court concluded that "if [the defendant] takes the stand and testifies in his own defense his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his [Fifth Amendment] waiver is determined by the scope of relevant cross-examination." Id. at 154-55. In reaching that conclusion, the Court noted that once a defendant elects to testify, the Fifth Amendment does not confer "an immunity from cross-examination on the matters he has himself put in dispute." Id. at 156-57; accord McGautha v. California, 402 U.S. 183, 213-25 (1971) ("It does no violence to the privilege that a person's choice to testify in his own behalf may open the door to otherwise inadmissible evidence which is damaging to his case.").

The Idaho Supreme Court recognized the rule from Brown and determined that there was no Fifth Amendment problem in the present case because the prosecutor's questions were related to issues that Hairston had himself put into dispute. This decision was not contrary to or an unreasonable application of Brown or other clearly established federal law.

While Hairston's counsel never asked him directly who owned the handgun, his questions and Hairston's answers strongly implied that it was it Klipfel's. Hairston testified that Klipfel "pulled out a gun" and shot the Fuhrimans. (State's Lodging A-8, pp. 2256-59.) At one point, defense counsel focused on which possessions Hairston had brought into a motel room before he and Klipfel were arrested, suggesting that the gun was one of Klipfel's possessions that he had left in his car. (State's Lodging A-8, pp. 2302-03.) This line of questioning harkened back to defense counsel's cross-examination of Klipfel on the same subject. (State's Lodging A-7, p. 1980.) Hairston also testified that he fired the weapon at road signs merely because "all [his] life [he'd] seen signs with bullet holes in them, and [he] just wanted to shoot a couple of them." (State's Lodging A-8, p. 2297.) The general theme of Hairston's direct testimony was that Klipfel was the instigator of these crimes and that he was an unsophisticated follower who was just along for the ride.

The Idaho Supreme Court reasonably concluded that, by taking the stand and testifying as he did, Hairston had waived his Fifth Amendment privilege not to address questions related to his familiarity with, and prior use of, the murder weapon. Hairston has not shown that he is entitled to relief.

Prosecutorial Misconduct (Claim 3)

Hairston next claims that he was deprived of his constitutional right to a fair trial because of prosecutorial misconduct. In support, he points to the following instances of alleged misconduct: (1) the prosecution requested, and was granted, an ex parte extension of time in which to disclose forensic test results to the defense, preventing the defense from being able to test certain items before trial; (2) the prosecution failed turn over a tape of a jailhouse conversation between Hairston and a visiting former inmate, James Martin, until after Martin testified for the defense; (3) the prosecutor improperly commented on Hairston's failure to protest that he was innocent during his conversation with James Martin; and (4) the prosecutor called Hairston a "murdering dog" during his closing argument. (Dkt. 99, pp. 13-14.)

The Idaho Supreme Court denied relief on all of these claims. It found no evidence that the prosecutor obtained the pretrial extension of time with the purpose of deceiving the defense. Hairston I, 988 P.2d at 1181. Although the Idaho Supreme Court determined that the taped conversation between Hairston and Martin should have been disclosed earlier under Idaho's discovery rules, it nonetheless determined that the defense was not prejudiced by the late disclosure. Id. at 1178. It likewise condemned the prosecutor's comments in closing argument but found that the comments were not prejudicial to Hairston given the overwhelming weight of the evidence against him. Id. at 1182.

This Court has reviewed the record and concludes that the Idaho Supreme Court's adjudication of the constitutional claim was not unreasonable. The scope of the issue on habeas review is a "narrow one of due process, and not the broad exercise of supervisory power." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). A prosecutor's comments or actions that may be considered inappropriate under the rules of fair advocacy, or even reversible error on direct review, do not warrant habeas relief unless the alleged misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 643.

Initially, this Court sees nothing in the record that rebuts the Idaho Supreme Court's finding that the prosecutor's ex parte request for an extension of time was not motivated by deceit or a desire to gain a tactical advantage. Although Hairston argues that the prosecutor misrepresented to the trial court that she was waiting for a ballistics report, it is not entirely clear whether the State already had this particular report, as Hairston now claims, or even if it did whether the prosecutor's misrepresentation was intentional or an oversight.*fn2 Regardless, the prosecutor also claimed that the State had not yet received other test results from the state crime lab, which Hairston does not dispute. (State's Lodging A-2, pp. 227-28.)

More to the point, there is no evidence that further scientific testing by the defense would have contradicted the State's results or would have materially assisted the defense in some other way. Hairston notes that at the commencement of the trial the defense was still awaiting serological test results on selected items of his clothing, and that the results that they eventually received did not show the presence of blood or fluids. Trial counsel Randall Schulthies testified during the post-conviction evidentiary hearing that, if defense counsel had this result sooner, they could have discredited Klipfel's testimony because Klipfel claimed that Hairston shot William Fuhriman at close range, suggesting that blood spatter would be on his clothes. (State's Lodging B-11, pp. 67-68.) But Hairston also testified at trial that Klipfel was "pretty close" when, in his version, Klipfel shot Fuhriman (State's Lodging A-8, p. 2257), and similar tests on Klipfel's clothing came back negative. (Id at 82.) What's more, the jury was aware that at least some articles of clothing from both men had been tested and had shown no sign of blood. (State's Lodging A-8, pp. 2086-87, 2095-96.) In light of these circumstances, evidence of additional tests on other clothes with that same result would have carried little force.

Next, the Idaho Supreme Court disapproved of the prosecution's tardiness in disclosing the taped conversation between Hairston and James Martin, but it found no prejudice. Hairston I, 988 P.2d at 1179. Hairston argues that had the prosecution disclosed the tape earlier, his counsel could have prepared Martin to testify more efficiently, or perhaps would not have called him as a witness, but the Court finds these arguments to be speculative. Like the Idaho Supreme Court, this Court is skeptical of the prosecution's theory that it was not required to disclose a tape that contained Hairston's own statements, but it agrees with the Idaho Supreme Court that "the fact that Martin may have been better prepared and testified differently, had he know of the existence of the tape, does not make Hairston's trial unfair." Id. The trial court instructed the jury that it could consider the tape only for impeachment purposes. (State's Lodging A-8, p. 2375.) Notably, Martin had no right to lie in his testimony regardless whether he was unaware that a tape recording could be used to impeach him; if he had not lied, the tape would not have been admissible.

Finally, this Court disapproves of the prosecutor's statements about Hairston's failure to protest his innocence to Martin and the prosecutor's use of the term "murdering dog" in his closing argument, but finds the Idaho Supreme Court's conclusion that he still received a fair trial to be a reasonable conclusion. These were isolated comments in a voluminous record that contained strong evidence of Hairston's guilt.

Hairston contends that the Idaho Supreme Court was remiss in not considering the cumulative impact of all of the alleged instances of misconduct when it assessed whether he received a fair trial. This Court is not convinced that the result would be any different if such a cumulative impact analysis had been undertaken. Hairston's claims of prejudice stemming from the prosecutor's ex parte request for an extension of time and from the late disclosure of the Martin tape are speculative, at best, and those instances add little weight. The prosecutor's other improper comments were not prolonged or emphasized, and they occurred in a lengthy trial in which the jury considered extensive evidence. Even if all of the instances are taken into consideration, Hairston has not demonstrated that prosecutorial misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process."*fn3 Donnelly, 416 U.S. at 643.

The Admission of the Martin Tape (Claim 4)

Hairston has not provided argument or authority for this claim in his Brief, and he is therefore deemed to have abandoned it. Alternatively, the Court concludes that admission of the tape did not make the trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The tape was relevant to impeach aspects of Martin's testimony.

The proper scope of redaction and the balancing of probative value with the potential for unfair prejudice are matters of state law. Accordingly, Hairston has not established a due process violation.

The Trial Court's Failure to Dismiss Jurors for Bias (Claim 5)

In his fifth claim, Hairston alleges that he was denied his Sixth and Fourteenth Amendment right to be tried by a fair and impartial jury because the trial court did not dismiss juror Renee Reynolds, for cause, during voir dire. (Dkt. 99, pp. 15-16.) Hairston did not use a peremptory strike to excuse Reynolds, and she served as a member of the jury that found him guilty.*fn4

1. Factual Background

During jury selection, prospective juror Renee Reynolds stated that she had been a member of a neighborhood watch group and in that capacity she had heard the Bannock County Sheriff "discuss some things" about this case. (State's Lodging A-6, p. 235.) When the trial court asked her whether she still believed that she could make a decision based on what she had heard in the courtroom instead of from some other source, she answered that she could. (Id.)

Later, when the prosecutor asked Reynolds specifically what she had heard about the case, she responded that "these two young men went to Majestic Mart in Downey and there was too many people there and they were planning on getting some money or something, and then they ended up going to the Fuhrimans' farm," where the Fuhrimans were murdered. (State's Lodging A-6, p. 464.) She recalled that the Fuhrimans' credit card "or something was found on these young men." (Id.) In response to follow-up questions, Reynolds added that she had heard that "these two young men" had come from Colorado, and they "were going to steal and murder their way all the way to Washington any way they could." (Id. at 468.)

The prosecutor asked Reynolds whether, despite her previous knowledge, she could still be objective, and she responded that, "I really tried to put it out of my mind today and I feel I can do that." (State's Lodging A-6, p. 469.) She affirmed that she could decide the case based on the evidence presented in court and not on any outside source. (Id.) Though she also agreed that she "might have" formed an opinion when she initially heard about the case, she could not say whether Hairston was guilty as she sat before the court because she had not heard any evidence and she believed in the presumption of innocence. (Id. at 471.)

In response to defense counsel's questions, Reynolds also said that she knew Jessie Fuhriman, the victims' daughter-in-law, because her daughter played on the same volleyball team as Jessie's daughter and they sat together during games. (State's Lodging A-6, p. 474.) But she disagreed with some of the other jurors who had expressed an opinion that Hairston was probably guilty, because ...


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