Opinion No. 33
from the District Court of the Fourth Judicial District of
the State of Idaho, Ada County. Hon. Thomas F. Neville,
judgments of conviction and the order dismissing the
post-conviction petition are affirmed.
D. Fredericksen, State Appellate Public Defender, Boise, for
appellant. Ian H. Thomson argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for
respondent. L. Lamont Anderson argued.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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
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
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.
GUILT PHASE ISSUES ON DIRECT APPEAL
The district court did not violate Hall's due
process rights by holding incidental
proceedings off the record.
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).
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.
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.
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).
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)).
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
The district court properly denied Hall's motion
to dismiss the indictment.
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
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.
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.
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.
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
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.
The district court properly denied Hall's motions
to strike two jurors for cause.
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
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
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)).
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
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?
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
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?
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.
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.
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.
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.
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.
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.
Hall has waived any objection to challenge allegedly bias
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.
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.
The district court did not err in allowing a police detective
to testify about the investigative process.
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.
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.
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.
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.
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
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.
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
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.
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)).
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.
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).
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.
The prosecution did not engage in misconduct in
discussing the DNA evidence.
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).
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)).
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.
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
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
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.
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
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
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,
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.
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
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
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
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
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.
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.
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.
Testimony from a DNA expert witness who supervised
the DNA testing did not violate Hall's
Sixth Amendment right to confrontation.
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
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).
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
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).
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.
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'
The State properly presented and the district court
properly admitted Exhibits 118, 119, and 120.
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."
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."
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."
The district court did not err in admitting the reenactment
expert witness testimony or photos.
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.
There was adequate foundation for the expert opinion on
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
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.
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)).
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)).
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.
There was adequate foundation for the reenactment
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.
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
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
Stevens, 146 Idaho at 143, 191 P.3d at 221.
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.
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
The expert opinion regarding the lividity patterns was
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).
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.
The reenactment photos were not unfairly
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).
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
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.
The prosecuting attorney did not engage in misconduct by
presenting the testimony of Dr. Groben and the reenactment
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.
Hall did not object to the jury instructions on the
elements of first-degree murder.
contends that jury instructions 13 and 13A impermissibly
reduced the State's burden of proof. Hall did not object
to the jury instructions.
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).
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.
There was sufficient evidence to prove forcible rape as it
was charged in this case.
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.
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
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
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."
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."
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.
The alleged errors in the aggregate did not result in
cumulative error at trial.
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).
SENTENCING PHASE ISSUES ON DIRECT APPEAL
Dunlap and Abdullah are controlling
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.
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.
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
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
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.
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.
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.
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 ...