Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Hall

Supreme Court of Idaho

April 11, 2018

STATE OF IDAHO, Plaintiff-Respondent,
v.
ERICK VIRGIL HALL, Defendant-Appellant. ERICK VIRGIL HALL, Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent.

         2018 Opinion No. 33

          Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Thomas F. Neville, District Judge.

         The judgments of conviction and the order dismissing the post-conviction petition are affirmed.

          Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Ian H. Thomson argued.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. L. Lamont Anderson argued.

          BRODY, JUSTICE.

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

         I. FACTUAL AND PROCEDURAL BACKGROUND

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

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

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

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

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

         II. ANALYSIS

         A. GUILT PHASE ISSUES ON DIRECT APPEAL

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

         Hall contends that he was denied equal protection and due process under the federal and state constitutions because incidental proceedings were held off the record. Where a defendant alleges that a constitutional error occurred at trial, we must first determine whether a contemporaneous objection was made. State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2008). "If the alleged error was followed by a contemporaneous objection at trial, appellate courts shall employ the harmless error test articulated in [Chapman v. California, 386 U.S. 18 (1967)]." Id. Here, no contemporaneous objection was made to any of the unrecorded proceedings which means that the alleged errors must be reviewed under our fundamental error doctrine:

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

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

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

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

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

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

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

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

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

         "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 (2014). Further, this Court has held that "[t]echnical defects are a "matter of form . . . [that] [do] not tend to prejudice any substantial right of the defendant." Gasper, 74 Idaho at 393, 264 P.2d at 681.

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

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

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

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

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

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

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

Some of the [jury questionnaire] questions dealt with whether what [sic] you think about a person who has come from a difficult or chaotic background. Some people view that as being a reason not to hold them responsible for the choices that they make or to judge them less harshly for the choices they make. Other 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 Juror 60. The court reasoned that Juror 60 would consider both aggravating and mitigating circumstances, and that the weight she assigns to them was her choice. When the defense argued that the juror was "mitigation impaired" and had stated that she would not consider mitigating evidence to the full extent, the court stated that the juror had agreed to weigh all of the facts and had not yet been instructed on mitigation law. When the defense moved to strike Juror 60, the State argued that Juror 60 agreed to consider mitigation evidence, and had not "indicated the slightest hesitancy about listening to any kind of evidence properly presented." After considering these arguments, the court denied the motion.

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

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

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

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

         "The invited error doctrine precludes a criminal defendant from 'consciously' inviting district court action and then successfully claiming those actions are erroneous on appeal." State v. Abdullah, 158 Idaho 386, 420, 348 P.3d 1, 35 (2014) (quoting State v. Owsley, 105 Idaho 836, 837, 673 P.2d 436, 437 (1983)). "It has long been the law in Idaho that one may not successfully complain of errors one has acquiesced in or invited. Errors consented to, acquiesced in, or invited are not reversible." Id. at 420–21, 348 P.3d at 35–36 (quoting Owsley, 105 Idaho at 838, 673 P.2d at 438); see also State v. Dunlap, 155 Idaho 345, 379, 313 P.3d 1, 35 (2013) (applying invited error to a capital case). Hall concedes that he did not object to seating any of the nine jurors, did not use a peremptory challenge for any of the nine jurors, and passed each for cause. In short, Hall failed to raise any objection to these jurors at any time, and allowed the jurors to be empaneled without reservation. Thus, any error was invited and is not reversible. Hall has waived this issue on direct appeal.

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

         Hall argues that the district court abused its discretion in admitting the testimony of Detective Smith that included his opinion about whether Christian Johnson was a viable suspect.

         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." Id. at 105–06, 205 P.3d at 1241–42.

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

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

         The question is whether the improper opinion objection had merit. "When reviewing the trial court's evidentiary rulings, this Court applies an abuse of discretion standard." Edmunds v. Kraner, 142 Idaho 867, 871, 136 P.3d 338, 342 (2006). "Error is disregarded unless the ruling is a manifest abuse of the trial court's discretion and affects a substantial right of the party." Perry v. Magic Valley Reg'l Med. Ctr., 134 Idaho 46, 51, 995 P.2d 816, 821 (2000). "The decision to admit opinion testimony, whether lay opinion or expert opinion, rests within the discretion of the lower court, while the determination of its weight lies with the jury." State v. Almaraz, 154 Idaho 584, 602, 301 P.3d 242, 260 (2011) (quoting State v. Cutler, 94 Idaho 295, 299, 486 P.2d 1008, 1013 (1971)). "The trial court's broad discretion in admitting evidence 'will only be disturbed on appeal when there has been a clear abuse of discretion.'" Id. (quoting State v. Merwin, 131 Idaho 642, 646, 962 P.2d 1026, 1030 (1998)). "The Court determines whether the district court abused its discretion by examining: '(1) whether the court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently within the applicable legal standards; and (3) whether the court reached its decision by an exercise of reason.'" State v. Abdullah, 158 Idaho 386, 416, 348 P.3d 1, 31 (2014) (quoting State v. Shackelford, 150 Idaho 355, 363, 247 P.3d 582, 590 (2010)).

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

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

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

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

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

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

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

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

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

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

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

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

Typically a DNA match is expressed in terms of the relative probability or the chance that one would go out into the population and happen to, at random, select an individual and type them and find that profile. With DQA1 polymarker testing, since it's less variable, the chance will be greater tha[t] you'll find somebody that has the profile you're looking at from the crime scene.
. . . With the STR technology looking again at 13 more variable loci, the numbers that are generated from the analyses are typically in the 1's of trillions . . . . So it's much more rare that you'd find it in the general population.

         Immediately thereafter, she was questioned by the prosecutor:

Q. But there aren't a quadrillion people?
A. No. Actually those numbers are a thousand times over what the current population is as estimated by the sensus [sic] in 2000 being about 6 billion, or 6 with nine zeroes following it.
Q. . . . But once the numbers of-the probability numbers get greatly beyond the current population, does that help you to decide whether you have a match or not?
A. It does. . . . [I]t's reasonable to ascertain that these sources are the same.

         She continued, stating:

Q. So when you get a probability that is in the trillions . . . does that tell you then that there could not be another person on the planet who would have the same DNA that would match at all 13 of those locations?
A. Other than an identical twin, yes, that would be a reasonable conclusion.

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

In the closing statement in this case, the State discussed the DNA evidence:
We brought Dr. Finis in here to talk about probabilities. We bought her in here to tell you how this all works so that you could be confident that STR DNA testing is an identity test of a probability test. It's an identity test. You identify people with 13 loci STR DNA testing.
. . . .
And then, of course, you know whose DNA it turned out to be, Erick Hall.
You know about all the big numbers. I didn't try and write out quadrillion for you. . . . I submit to you that this element has been proven.

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

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

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

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

THE STATE: The reason I ask it is this: Say that you take a blood sample from a crime scene and a known blood sample from a suspect and you compare those two and it's a match. How do you know that somebody else doesn't match also? What I'm looking for is to see if there is some numerical way in which laboratories can express the strength or significance of the DNA match.
DR. FINIS: Yes, there is. Typically, a DNA match is expressed in terms of the relative probability or the chance that one would go out into the population and happen to, at random, select an individual and type them and find that profile. With DQA1 polymarker testing, since it's less variable the chance will be greater than you'll find somebody tha[t] has the profile you're looking at from the crime scene.
The numbers tend to run in 1 in tens of thousands to 1 in 100,000's with that type for probability of finding someone at random in the population that would have that profile. With the STR technology looking again at 13 more variable loci, the numbers that are generated from the analyses are typically in the 1's of trillions. So that's 1 with 12 zeros after it, kind of like our budget deficit, or quadrillions, 1 in – with 10 to the 15th or 1 with 15 zeroes after it. So it's much more rare that you'd find in the general population.
THE STATE: But there aren't a quadrillion people?
DR. FINIS: No. Actually those numbers are a thousand times over what the current population is estimated by the sensus [sic] in 2000 being about 6 billion, or 6 with nine zeroes following it.
THE STATE: And so if – we're going to talk about this in a minute. But once the numbers of – the probability numbers get greatly beyond the current population, does that help you decide whether you have a match or not?
DR. FINIS: It does. Like I said, that's at the point where you've obtained a clean single source profile of 13 loci you get these numbers. And based on your knowledge of the variability and on population genetics, it's reasonable to ascertain that these sources are the same.

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

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

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

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

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

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

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

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

         In determining whether a statement is testimonial in nature, the "inquiry should focus on whether the technician's statements were made with a primary objective of creating an evidentiary record to establish or prove a fact at trial." State v. Stanfield, 158 Idaho 327, 337, 347 P.3d 175, 185 (2014). When addressing expert testimony, "[a] defendant's right to confrontation is violated when 'an expert acts merely as a well-credentialed conduit,' and does not provide any independent expert opinion." Id. at 338, 347 P.3d at 186 (quoting United States v. Ramos-Gonzalez, 664 F.3d 1, 5–6 (1st Cir. 2011) (holding that testimony violated Confrontation Clause because the expert simply recounted results of another expert's testing)). "However, when an 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 "body in a manner that would account for the marks, the lividity patterns" that he saw during the autopsy. Exhibits 118, 119, and 120 were illustrative of how Dr. Groben positioned Ms. Henneman's body based upon the lividity patterns. Hall contends the district court erred by admitting Dr. Groben's "reenactment" testimony and Exhibits 118, 119, and 120, because there was a lack of foundation, they were irrelevant, and unfairly prejudicial. Hall further contends that admission of the evidence constitutes prosecutorial misconduct rising to the level of fundamental error because the evidence is "speculative [and] extraordinarily prejudicial."

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

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

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

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

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

         "The inquiry under I.R.E. 702 is whether the expert will testify to scientific knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue, 'not whether the information upon which the expert's opinion is based is commonly agreed upon.'" State v. Perry, 139 Idaho 520, 522, 81 P.3d 1230, 1232 (2003) (quoting State v. Merwin, 131 Idaho 642, 646, 962 P.2d 1026, 1030 (1999)).

         "Expert opinion must be based upon a proper factual foundation." Bromley v. Garey, 132 Idaho 807, 811, 979 P.2d 1165, 1169 (1998). "If, based on an expert's training, one possible cause is observed with greater frequency than others, this information would be useful to the trier of fact." Merwin, 131 Idaho at 646, 962 P.2d at 1031; see also Lanham v. Idaho Power Co., 130 Idaho 486, 492, 943 P.2d 912, 918 (1997) (holding it was not error to permit an expert to "testify about possible causes of the fire. All reasonably likely causes of the fire were relevant because the fire's cause was a central element of the [] causes of action."). "[E]xpert medical opinion testimony must be based upon a 'reasonable degree of medical probability' in order to be admissible." Bloching v. Albertson's, Inc., 129 Idaho 844, 846, 934 P.2d 17, 19 (1997) (quoting Roberts v. Kit Mfg. Co., 124 Idaho 946, 948, 866 P.2d 969, 971 (1993)).

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

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

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

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

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

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

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

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

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

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

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

         (4) The reenactment photos were not unfairly prejudicial.

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

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

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

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

         Hall argues that it was misconduct for the State to present Dr. Groben's testimony regarding the lividity patterns and the positioning of the body, and to seek admission of the reenactment photos. However, no objection was made at trial. "Where prosecutorial misconduct was not objected to at trial, Idaho appellate courts may only order a reversal when the defendant demonstrates that the violation in question qualifies as fundamental error." State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2008). Fundamental error requires that there be an "error that violates one or more of the defendant's constitutional rights; the error must plainly exist; and the error must not be harmless." State v. Hall, 161 Idaho 413, 423, 387 P.3d 81, 91 (2016). "[E]very defendant has a Fourteenth Amendment right to due process and it is axiomatic that a fair trial in a fair tribunal is a basic requirement of due process." Perry, 150 Idaho at 224, 245 P.3d at 976 (internal quotations omitted). However, the existence of properly admitted evidence does not violate that constitutional right. The expert witness testimony and the reenactment photos were properly admitted and Hall's constitutional right to a fair trial was not violated.

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

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

         "Whether jury instructions fairly and adequately present the issues and state the applicable law is a question of law over which this Court exercises free review." State v. Shackelford, 150 Idaho 355, 373, 247 P.3d 582, 600 (2009) (quoting State v. Humpherys, 134 Idaho 657, 659, 8 P.3d 652, 654 (2000)). "The invited error doctrine precludes a criminal defendant from 'consciously' inviting district court action and then successfully claiming those actions are erroneous on appeal." State v. Abdullah, 158 Idaho 386, 420, 348 P.3d 1, 35 (2014). "It has long been the law in Idaho that one may not successfully complain of errors one has acquiesced in or invited. Errors consented to, acquiesced in, or invited are not reversible." Id. at 420–21, 348 P.3d at 35–36 (quoting State v. Owsley, 105 Idaho 836, 838, 673, P.2d 436, 438 (1983)); see also State v. Dunlap, 155 Idaho 345, 379, 313 P.3d 1, 35 (2013) (applying invited error to a capital case).

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

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

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

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

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

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

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

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

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

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

         B. SENTENCING PHASE ISSUES ON DIRECT APPEAL

         12. Dunlap and Abdullah are controlling precedent.

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

         Section 19-2827 provides, in pertinent part:

(a) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Idaho . . . .
(b) The Supreme Court of Idaho shall consider the punishment as well as any errors enumerated by way of appeal.

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

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

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

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

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

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

         "Constitutional questions are reviewed de novo." Dunlap, 155 Idaho at 377, 313 P.3d at 33. The Eighth Amendment, as interpreted in Furman v. Georgia, 408 U.S. 238 (1972), "mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia, 428 U.S. 153, 188 (1976). Thus, "[a]n Eighth Amendment claim based upon vagueness examines whether the challenged aggravating circumstance, together with any limiting instruction, adequately channels the discretion of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.