FOR IMMEDIATE RELEASE: Tuesday, Oct. 30, 2012

A statement from Gov. Dennis Daugaard on this evening’s execution of Donald Moeller:

“After more than 20 years, Donald Moeller finally admitted to killing young Becky O’Connell. He accepted his fate and dismissed attorneys who continued to oppose his execution. I take no pleasure in his death, but there are those who are so vile that executions are warranted. I hope this brings closure to Becky’s mother, and I again commend Warden Weber and his staff for their professionalism in planning this second execution this month.”

South Dakota Argus Leader

Death row inmate Donald Moeller told those closest to him that he did not know how to ask for forgiveness in the weeks, days and hours before his execution Tuesday night at the state penitentiary. A week before he was put to death for the 1990 kidnapping, rape and murder of 9-year-old Becky O’Connell, Moeller sent a letter to his stepsister, Donna Nichols of Sioux Falls, remembering good times they had shared, thanking her for looking out for him through the years, telling her he was at peace and ready to die.

“I can’t explain why,” Moeller wrote in the letter Oct. 23 to Nichols, which she shared in part Wednesday. “I can only accept the judgment of the court. All of these years that I have denied what I did, and lied to the few people that loved me, was fear and shame. I now claim responsibility for the evil I did. Saying ‘oops, sorry’ just ain’t good enough. How do I beg forgiveness from you, your mom and (his stepbrother) Glen, let alone this little girl’s mother?” That mother, Tina Curl, said she was told after the execution that Warden Doug Weber had asked Moeller 30 minutes before he was put to death whether he planned on making a last statement. “I understand Moeller said, ‘No, I don’t think so. I don’t think I can convey to them how sorry I am. It would probably do more harm than good,’ ” Curl said she was told.

Asked whether Moeller’s words in his letter to his stepsister meant anything to her, Curl said: “No, because sorry from him wouldn’t mean anything. If he was sorry, 22 years ago he would have kept walking right on by Beck.”

On Wednesday, Department of Corrections officials said muffled voices heard by witnesses attending Moeller’s execution appeared to be those of inmates cheering as the procedure began — their voices penetrating through the walls. Moeller, 60, had just responded “no, sir” to the warden when asked whether he had any last words. Moments later, as he lay strapped to the surgical bed, Moeller said what sounded like “hear my fan club” or “they’re my fan club.” He could have been hearing the voices of inmates in a nearby unit of the prison, Corrections spokesman Michael Winder said.

“Some witnesses to last night’s execution reported hearing voices or audible noises during the execution as (Moeller) made his last statement,” Winder said in an emailed statement. “Several of the other witnesses, as well as DOC and penitentiary staff members in and near the execution chamber, have since reported that they could distinguish the voices as coming from a few inmates in a nearby housing unit. “Although one can only speculate, it is our belief that inmate Moeller’s reference to a ‘fan club’ was intended toward the other inmates, and not those people witnessing or staffing the execution.” If it was coming from other inmates, that was fine with Curl. “That’s the last thing Moeller heard, all those inmates cheering,” she said. “That makes me feel pretty damn good.”

Both Nichols and Curl said they understood Moeller’s body was being cremated. Those cremains, along with his Bible, books and other possessions, will be claimed by Nichols’ mother, Agnes “Tookey” Becker, who was married to Moeller’s stepfather and was the woman with whom he had perhaps his closest familial relationship. Moeller told Becker in his will what he wanted done with his ashes, Nichols said, though she didn’t identify what that was. She did say that she was sick about what Moeller did to Becky O’Connell, that she was sorry about it, and that “I don’t know what I would do in Tina’s shoes.”

She wishes her stepbrother had been able to turn his head toward Curl’s witness room and apologize. “Why didn’t he turn his head and say ‘I’m sorry?’ ” Nichols said. “If that would have made her feel better and resolved something, I just wish he would have.” His murderous assault of Becky O’Connell was terrible, she said. But as tears fell for the little girl and her family over the past weeks, days and hours, they fell for Donald Moeller, too, Nichols said. “He was loved,” she said. “I want you to know that there were people out there crying for him, too.”

CBS News

(AP) SIOUX FALLS, S.D. - A South Dakota inmate was executed Tuesday night for the 1990 rape and murder of a 9-year-old girl who disappeared after leaving her home to buy sugar at a nearby store so she could make lemonade.

Donald Moeller, 60, received a lethal injection at the state penitentiary in Sioux Falls, marking South Dakota's second execution this month in an unusual surge for a state that has carried out just two other death sentences since 1913. He was pronounced dead at 10:24 p.m.

Moeller kidnapped Becky O'Connell from a Sioux Falls convenience store, where she'd gone to buy sugar to make lemonade at home. He drove her to a secluded area near the Big Sioux River, then raped and stabbed the girl. Her naked body was found the next day; investigators said her throat had been slashed.

Becky's mother, Tina Curl, has been steadfast in her wish to watch Moeller die, even raising funds to cover the expenses to make the 1,400-mile trip from her home in New York state to Sioux Falls for the execution. "He watched my daughter take her last breath. I want to watch him take his last breath," Curl told The Associated Press in August. "I'm doing this for her and for me."

Moeller initially was convicted in 1992, but the state Supreme Court overturned it, ruling that improper evidence was used at trial. He was again convicted and sentenced to die in 1997. The state Supreme Court affirmed the sentence, and Moeller lost appeals on both the state and federal levels. Though he fought his conviction and sentence for years, Moeller in July he said he was ready to accept death as the consequence of his actions. He admitted for the first time in court that he killed the girl. "I killed. I deserve to be killed," he said. But even as Moeller insisted he was ready to die, several motions were filed on his behalf to stop the execution despite his protests.

Earlier this month, a federal judge dismissed a pending suit challenging South Dakota's execution protocol after Moeller insisted he wanted no part of it. Moeller also distanced himself from a motion filed by a woman with loose family ties who argued that his decades in solitary confinement had made him incapable of voluntarily accepting his fate. That motion was dismissed Monday.

Moeller's execution comes just two weeks after the Oct. 15 execution of Eric Robert for killing South Dakota prison guard Ronald "R.J." Johnson during a failed escape attempt. Before that, the last execution in South Dakota was in 2007, when Elijah Page died by lethal injection for the murder of Chester Allan Poage, who was abducted and killed in a scheme to burglarize his mother's home.

In 1947, George Sitts was electrocuted for killing two law enforcement officers. And in 1913, Joseph Rickman was hanged for the murder of a woman and her daughter. They were among 17 inmates executed since 1877, the oldest of which came during the days of the Dakota Territory.

Keloland Television

SIOUX FALLS, SD - The Sioux Falls man who just recently admitted killing a 9-year-old girl 22 years ago has been executed at the South Dakota State Penitentiary. Donald Moeller raped and killed Becky O'Connell in Sioux Falls in May 1990. She was last seen alive at a neighborhood store buying candy. Investigators found her mutilated body the next morning near Lake Alvin.

Eight months later, Moeller turned up in Tacoma, Washington. He was arrested, convicted and sentenced to die for the O'Connell's death. But the South Dakota Supreme Court reversed the ruling over improper testimony. A new trial in 1997 led to Moeller's conviction and death sentence, which the U.S. Supreme Court upheld as Moeller exhausted the appeals process. Moeller is the 18th person to be executed in South Dakota with three men sitting on death row.

Following the execution, witnesses gave their accounts of what happened. Kristi Eaton, with the Associated Press, noted that Moeller was wearing a white t-shirt and orange jail pants when they first saw him already strapped to the execution table. When asked for last words, Eaton says Moeller responded, "No, Sir." A moment later he said, "They're my fan club."

Steve Young with the Argus Leader says he would have liked to have seen Moeller as he was strapped to the table and the IVs were inserted. Young reports that shortly after Moeller's last words, he could hear deep breaths coming from the room. Within a minute or two, Young says he could no longer see Moeller's chest moving. Warden Doug Weber stood over Moeller for about 10 minutes before calling in the coroner. Both media witnesses say they noticed Moeller's face go ash and then purple. Young says it appeared to be a quick, painless and clinical death.

South Dakota Argus Leader

Ken Albers couldn’t believe his eyes. In the woods near Lake Alvin in Lincoln County, along the Big Sioux River separating Iowa and South Dakota, he was staring at what appeared to be the tortured body of a child left in an obscene and grotesque death pose. It can’t be real, thought Albers, whose years as county sheriff had taught him well about the ugly side of humanity. This was somebody’s sick sense of humor. This was so implausible that before he called in any crime scene investigators, he felt compelled to do something seasoned law enforcement like himself never do.

He walked into the crime scene and reached out to it with his hand. “I had to … convince myself it was real, that I wasn’t making a fool of myself by calling investigators out for a doll, for something someone had put together as a joke,” Albers recalled recently. “It didn’t look real to me, so I had to touch her.”

What he learned then, what the rest of South Dakota knows now, is that this was not make-believe. This was 9-year-old Becky O’Connell, a child stolen from the streets of northern Sioux Falls a day earlier — May 8, 1990 — driven to the woods, then raped and sliced to death with a knife that ultimately cut deep into her throat.

Twenty-two years later — about 10 p.m. Tuesday — her killer, Donald Eugene Moeller, will be executed by lethal injection at the state penitentiary, closing the book on an act considered among the most vile in state history. “I think … and most law enforcement officers who worked on this case would say … that this was probably one of the most, if not the most, horrific crimes that this state has ever seen,” said Scott Abdallah, a Sioux Falls lawyer and former Lincoln County state’s attorney who prosecuted the second of two trials Moeller received in the death of the little girl.

The man who snatched innocence from a neighborhood in the shadow of the penitentiary was no novice to crime. Court records show that through his teen years and adult life, Moeller was a thief and a thug who tried to play out his sexual perversions at the point of a knife. His file reveals that he once chased down a man and punched him in the nose, convinced that the stranger had upset his dog as he walked past Moeller’s yard and caused the animal to bark.

History of attempted sexual assaults

He was a bully and, as the years that followed would reveal, much worse than that. In January 1973, Moeller pushed his way into the car of a 21-year-old Sioux Falls woman, had her drive to a cornfield at the east edge of town, then threatened to kill her with a knife if she didn’t take off her clothes. She refused. He let her go.

Six years later, having gone to live with a stepsister in Wright, Wyo., Moeller tried to sexually assault a 13-year-old neighbor boy he had invited into his home and plied with alcohol. Moeller sliced the youth’s leg with a knife as the boy fled. He ended up going to prison in Rawlins, Wyo., for that.

What ultimately brought Moeller into Becky O’Connell’s orbit was yet another sexual assault attempt, this one only four months before he kidnapped and murdered the little girl. Moeller had gone to the apartment of an acquaintance in Sioux Falls to ask her whether she wanted to go out for a drink or dancing. When she declined, he asked whether he could stay and watch television with her instead. When she had agreed to that, he eventually took out a knife, began running it up and down her leg and threatened her if she didn’t lift her shirt. The woman refused. When he suggested he would harm her or her baby daughter sleeping nearby, she became angry, grabbed his knife, cut her hand and bolted from the apartment.

Case cited as reason to preserve death penalty

He was caught, charges were filed, and in time, Moeller would learn that prosecutors wanted to have him put away for life as a habitual offender. He was told that news on the day Becky O’Connell was murdered, Attorney General Marty Jackley testified to a state legislative committee considering the repeal of the death penalty in 2010.

Moeller’s actions after he left his lawyer’s office “clearly demonstrates why (the death penalty) is needed as a protection to the public,” Jackley told committee members. “Donald Moeller … visited his defense lawyer and was told that, based upon a separate assault matter, that he would likely be serving life. He was told that on May 8 between 3 and 4 o’clock. At 5:30, 9-year-old Becky O’Connell went to go get candy and, shortly thereafter, was found raped, sodomized and stabbed to death.”

That Moeller chose women and children does not surprise Abdallah. “There are some (criminals) who, if they were sitting here with you and I, you wouldn’t want to be in the same room. You might think, ‘They could kill me at any minute,’ ” the former prosecutor said. “My impression of Moeller is, he was an opportunist. He took advantage of vulnerable people in a situation where the opportunity presented itself. I never felt unsafe around him.”

Circumstances of his youth make it easier to understand how this career criminal became one of the most reviled South Dakotans in state history. “Some people have family trees. Moeller had a bramble bush,” said Jeff Masten, a medical physicist in Wisconsin who was the Lincoln County state’s attorney who prosecuted Moeller in his first trial for O’Connell’s murder.

The death row inmate’s relatives are not interested in talking about him publicly. An aunt and uncle declined to be identified in interviews. His brother, Irvin, did not return several requests for interviews. And the one person he seems to have any kind of intimate relationship with, his stepmother, Agnes Becker of Sioux Falls, would say only that she has visited him in the penitentiary. But Becker and her daughter, Donna Nichols, did talk about Moeller — in affidavits filed with motions in federal court to have him declared incompetent to decide whether to end challenges to the method of his execution. The grim story of his life growing up also was revealed in affidavits submitted by a psychologist and lawyers who visited him on death row.

Unstable upbringing, indifferent mother

Moeller was born Aug. 5, 1952, at Sioux Valley Hospital to 30-year-old John Moeller and 17-year-old Melvina Nelson, reported Tim Jon Semmerling, a lawyer hired by the Arkansas Public Defenders Office that was representing Moeller on his federal appeals. John Moeller abandoned his wife before his son was born, Semmerling learned in more than 110 hours spent talking with Moeller and other family members After her husband left, Melvina began a relationship with Glen Becker Sr., Semmerling wrote. In the late 1950s, the couple traveled with the Thomas Carnival, leaving baby and then toddler Donald for months at a time with a neighbor’s mother. Later, when they brought the child with them on their carnival runs, the couple would leave him tethered to a bus with a rope when they were out partying, Semmerling said.

A second man who interviewed Moeller, Massachusetts clinical psychologist David Lisak, said the “single most scarring and damaging factor in Donald Moeller’s life was the pervasive and open rejection he experienced from his mother.” “She made clear her utter indifference to him, and frequently her abject hatred of him,” Lisak wrote. “She beat him mercilessly. On one occasion, she grabbed a hot frying pan from the stove and slammed Donald in the head with it, knocking him senseless to the floor.”

She regularly called him “bastard, red-headed stepchild and useless nobody,” Lisak said. In her affidavit, Moeller’s stepsister Nichols said his mother so wanted a daughter instead of a son that she “used to dress him in dresses ... when he was a very small boy.” Moeller and his siblings told Semmerling that their mother often walked around the house naked and admonished her sons not to tell Becker about the men she had to the home when he was gone. Lisak said he was told Melvina would come back from the bars with men and perform sexual acts in front of her children. Moeller told Lisak he was sexually abused by three different women during his childhood.

No Christmas as a boy; drinking by age 8

They celebrated no Christmases in their home, put up no trees, exchanged no presents, Moeller told the interviewers. What little clothing they owned the boys had to wash themselves. They “all slept together in one bedroom, on bare mattresses on the floor with no sheets or pillows. The mattresses were blackened with dirt,” Semmerling wrote. Moeller told Lisak he was abusing alcohol consistently by age 8, waiting for his mother and stepfather to pass out so he could consume half-empty cans of beer and leftover drinks. By 11 he was smoking marijuana, and soon after huffing gasoline and other inhalants.

Semmerling said Melvina and the man she married after Glen Becker supplemented their income by breaking into farmhouses and stealing when the owners were away. They made the boys stand watch. “One time when Donald stole a color television for his mother … she was disappointed because it had a scratch on it, and she told Donald, ‘Next time get someone to help you,’ ” Semmerling wrote.

For all that, there were occasional glimpses of the boy and man Donald Moeller could have been. In her affidavit, Agnes Becker remembered a stepson who mowed the yard and did other chores for her. Nichols, his stepsister, remembered him playing with her young daughter when he came home at night. “I completely trusted Donald with my daughter,” Nichols wrote, “because he was so tender-hearted with her.”

Two marriages, daughter he never knew

Moeller married twice. His first wife was 16 when they married April 15, 1972. She gave birth to their daughter 11 months later, on March 5, 1973, and was divorced from him five months after that while he was in prison. At his second trial involving the O’Connell murder in 1997 in Rapid City — after the state Supreme Court ruled that his previous bad acts shouldn’t have been introduced in his 1992 trial in Yankton and threw out that conviction — Moeller met his daughter, who was 24, for perhaps the first time. They were introduced during a break in the proceedings. Moeller learned he was a grandfather. His lawyers were hoping to put the daughter on the stand in the death penalty phase of the trial to plead for her father’s life. Moeller wouldn’t allow it. “I can’t tell you why for sure,” said Circuit Judge David Gienapp of Madison, who represented Moeller at the Yankton and Rapid City trials. “Maybe he didn’t want her exposed” to the public as his daughter.

Moeller married a second time, Jan. 22, 1976, again in Sioux Falls. But that union was brief and produced no children.

Reading while in prison; avid Twins fan

For all his criminal tendencies, Moeller did not lack for intelligence, insisted lawyers and law enforcement officials who were around him before and leading up to his two trials. He was well-read enough to suggest that a prosecutor had misquoted Henry David Thoreau’s book, “Walden,” during one trial. Moeller is a voracious and knowledgeable Minnesota Twins fan. As they drove back and forth to hearings and trials, Albers, the former Lincoln County sheriff, said he and Moeller often talked about weaponry and wars. “I think once he was incarcerated, he had a penchant for learning and reading. He didn’t have that chance growing up,” Gienapp said. “You never know, with his intelligence, if he’d had enough breaks like the rest of us, he might have been a very productive citizen.”

Instead, he has spent the last third of his life in a purgatory of his own making — one that he appears ready to escape. In prison, inmates jeer him when they hear his chains and shackles coming down a hall, Lisak and Semmerling say. Prison staff had to put a covering over his cell door so inmates wouldn’t throw things in at him. Guards aren’t allowed to speak to him unless it is official prison business.

In an Oct. 4 hearing at the federal courthouse, where he told U.S. District Judge Larry Piersol he didn’t want to fight his method of execution anymore, Moeller talked about death row. He wakes at 6 every morning when the lights are turned on. He cleans his cell — what he calls his “house” — and dusts and sweeps the floor and then naps until lunchtime. He likes to watch NBC anchor Brian Williams on television and to do Argus Leader crossword puzzles. He reads the Bible, the Book of Mormon and anything dealing with history or the Civil War. He reads Carl Sandburg and the books of Graham Greene. He listens to KYBB radio when they are playing albums for an entire hour.

It’s a lonely, monastic life, an existence that relatives and legal counsel contend has brought his mental well being into question. In one sense, he’s probably fortunate he got to spend the past 20 years of his life on death row, said Masten, the former Lincoln County state’s attorney. “He was going to prison for life even before Becky O’Connell,” Masten said. “But even if he had been found not guilty on the murder case, the worst thing in the world for him would have been to get turned back into the general population. They would have killed him.” Now the state will do that instead. There have been concerted efforts to stop it — by his stepmother and stepsister, and by the Arkansas Public Defenders Office — played out in legal maneuverings from Sioux Falls to the promise of a plea to the nation’s highest court.

Moeller doesn’t want that. “If the rape and murder of Rebecca O’Connell doesn’t deserve the death penalty,” he said in the Oct. 4 hearing, where he openly confessed his guilt, “then I guess nothing does.”

O’Connell’s family doesn’t want the execution stopped, either. “Halloween is coming,” said the girl’s mother, Tina Curl of Lake Luzerne, N.Y., who is driving here with her husband to witness the execution. “I have a good way for him to go: Wrap him in toilet paper and set him on fire. That punishment would be fine.”

Ken Albers, the sheriff who couldn’t believe what he was seeing 22 years ago as he stood at the crime scene and stared at what Moeller had done, isn’t sure what he wants, or should feel. He just knows that he will be at the penitentiary Tuesday night to see this most vile chapter in South Dakota’s history to its conclusion. “It’s important for me to go, but I can’t tell you why,” Albers said. “It just seems like I should be there.”

Those involved in the case:

REBECCA O’CONNELL: Nine-year-old Becky O’Connell, a fourth-grader at Hawthorne Elementary, was kidnapped near the intersection of North Drive and Main Avenue about 5:20 p.m. May 8, 1990, after she had gone to the S&A Convenience Store to buy Laffy Taffy, then crossed the street to the north to look at squirt guns in Omar’s Market. A man driving through the area at about that time said he saw a man with a black baseball-type cap talking to the young girl as they stood on the pavement near the intersection. O’Connell’s nude body was discovered the next day by two men who had come to ride their all-terrain vehicles in a wooded area along the Big Sioux River near Lake Alvin in Lincoln County. She had been raped and stabbed to death.

DONALD EUGENE MOELLER: The 60-year-old convicted murderer is expected to be put to death this week after being found guilty at two trials for the murder of O’Connell. A lifelong criminal who faced charges for cutting a woman with a knife only months before O’Connell was killed, Moeller was told May 8, 1990, that the state wanted to send him to prison for life as a habitual offender. Prosecutors said he went out shortly after that, kidnapped, raped and murdered the little girl. He sat on death row 20 years before asking for any further legal maneuverings on his part to be halted.

LAWRENCE PIERSOL: The 72-year-old U.S. district judge has presided over Moeller’s federal appeals process, including his challenge to the quality of the drugs to be used in his execution and of the lethal injection method the state wanted to use to put him to death. On Oct. 9, Piersol ruled that Moeller could end his challenge to the constitutionality of the lethal injection method and that he also could terminate his representation by the Arkansas Public Defenders Office.

MARK MARSHALL: The 58-year-old has worked as a lawyer in Sioux Falls and Rapid City and represented Moeller as court-appointed counsel on the state appeal of his 1997 conviction and death sentence. He left the case to become a magistrate judge in Rapid City but since has returned to practicing law and has been representing Moeller in the months leading up to his execution. At one time, Marshall served on the South Dakota Board of Pardons and Paroles.

TINA CURL: Becky O’Connell’s mother, now 50, has been critical of the length of time it has taken to execute her daughter’s killer. She and her husband, David, are driving from their home in Lake Luzerne, N.Y., to see Moeller put to death. At the time that her daughter was murdered, the Curls were living in the People’s Court trailer park near the state penitentiary.

JEFF MASTEN: Masten was the Lincoln County state’s attorney from 1981 to 1993 and prosecuted Moeller at his 1992 murder trial in Yankton. Masten once ran unsuccessfully to be South Dakota’s attorney general and also has served as chairman of the state Democratic Party. In 1997, he went to the University of Colorado to pursue a master’s degree in radiology therapy and now is chief physicist for a hospital system based out of Wausau, Wis.

SCOTT ABDALLAH: Only 27 when he was appointed as Lincoln County state’s attorney in January 1995, Abdallah was the youngest county prosecutor in the state at the time and was 29 when he successfully got a murder conviction and death penalty for Moeller at his retrial in Rapid City in 1997. Two years later, then-Gov. Bill Janklow appointed Abdallah to the Board of Pardons and Paroles. He now practices law in Sioux Falls.

MIKE BUTLER: The 55-year-old represented Moeller at his Yankton trial in 1992 and again, five years later, at his retrial in Rapid City. One of the state’s top criminal defense lawyers, Butler was voted Trial Lawyer of the Year in 2007-2008 by the South Dakota Trial Lawyers Association. He was the state’s Democratic candidate for attorney general in 1990 and also was legal counsel for death row inmate Elijah Page when he was executed in 2007.

DAVID GIENAPP: Retiring at the end of the year as a circuit court judge with his chambers in Brookings, Gienapp was co-counsel with Butler for both of Moeller’s criminal trials. He also prosecuted cases stemming from the 1973 Wounded Knee uprising as an assistant U.S. attorney and was defense counsel in the death penalty case of Steven Bittner, who killed a Huron police officer in 1982. Bittner was given a life sentence for that crime.

MARTY JACKLEY: After serving as the top federal prosecutor in South Dakota for three years, Jackley was appointed attorney general in 2009 and later elected to the position. His office prosecuted both Eric Robert, who was executed Oct. 15, and Rodney Berget, who sits on death row, for their roles in the April 12, 2011, killing of corrections officer Ronald “R.J.” Johnson at the penitentiary.

South Dakota Argus Leader

No closure for O'Connell's family; Execution doesn't quelch anger at killer." (4:48 PM, Oct 31, 2012)

Tina Curl moved her family to Sioux Falls just months before her daughter, Becky O’Connell, was kidnapped, raped and murdered by Donald Moeller in 1990. Tuesday night, 22 years after her daughter’s death, Curl sat in a witness room at the South Dakota State Penitentiary and watched the execution of Donald Moeller, the man who murdered her daughter.

After the execution, she walked up to a podium and showed three pictures. The first was O’Connell as a child. The second showed Curl at her daughter’s grave on what would have been her 32nd birthday. The third was a composite sketch of O’Connell as she would have looked at age 32. As she held the framed sketch from artist Phil Toft, her husband, Dave Curl, stepped to the podium to read a statement. “Finally, justice for Becky after 22 years and five months and 23 days from the day of May 8, 1990, when Donald Moeller murdered our daughter, Becky, he is dead,” Dave Curl said. “He will never take another breath or hurt another child.”

Watching Moeller die didn’t dilute their anger. “We despise that so-called man. The death of Donald Moeller is not going to give us closure,” Dave Curl said. “There will never be closure for us.” After the news conference, Tina Curl put a finer point on it. Moeller didn’t address Curl with his last words, and he’s never answered her questions about how he was able to lure O’Connell into his truck so many years ago. “He was a lowlife until the end,” she said.

The memory of her daughter’s murder is still fresh in her mind, she said, and it will be for as long as she’s alive. Driving by the penitentiary, just a few blocks from the market where O’Connell was captured during a short trip for sugar, is a reminder of how life might have turned out in South Dakota. “She’d be alive if I hadn’t let her go to that store by herself,” Tina Curl said. “I carry that guilt with me.” The Curls drove from Lake Luzerne, N.Y., over the weekend for the execution, having raised funds for the trip through a webpage set up by her neighbor.

She spent the days and hours before Moeller’s death visiting the wooded area near Lake Alvin where her daughter was killed. A cross bearing O’Connell’s name rests there, but trees had fallen over it and brush had grown around it. They cleared some of it away, put flowers and an angel on the memorial.

Tina Curl called Gov. Dennis Daugaard’s office on Monday and asked them to clean up the site. The state’s Game, Fish and Parks Department was instructed to clear the growth, Daugaard spokesman Tony Venhuizen said Tuesday. Dave Curl, who only knew O’Connell for 11 months before her death, plans to play two of the girl’s favorite songs on his guitar at the murder site before the couple returns to their home – “I Still Miss Someone” from Johnny Cash and “Last Kiss” by J. Frank Wilson and the Cavaliers. “Beck was just starting to refer to (Dave) as Dad by the time she was murdered,” Tina Curl said.

The Curls will return to New York this week with the sketch and the clothes O’Connell was murdered in, provided by the Lincoln County State’s Attorney after the execution. They won’t come back, though. “It’s nothing against the state of South Dakota, I just don’t want to be here,” she said.

South Dakota Argus Leader

Donald Moeller, the child rapist and killer who was the disheveled face of South Dakota’s death row for two decades, joked with prison officials Tuesday night, moments before they ended his life. Strapped to an execution table and wearing a beard and long, gray hair, the 60-year-old Moeller was asked if he had any last words. “No, sir,” he said, then added an apparent reference to those gathered to witness the execution: “They’re my fan club?” Tina Curl, the mother of Moeller’s victim, 9-year-old Becky O’Connell, said afterward that the killer was “a lowlife, right to the end.”

The lethal injection process started at 10:01 p.m., and Moeller stopped breathing within a couple minutes. He was declared dead at 10:24 p.m.

Moeller’s death closes the book on one of the most heinous crimes in state history. Becky O’Connell was by herself on a trip to the convenience store the evening of May 8, 1990, when she disappeared. The next day, two men found her naked body in a wooded area near Lake Alvin and the Iowa border. She had been raped and sodomized, with knife wounds throughout her upper body, arms and hands. A cut to her jugular vein likely ended her life.

Moeller was arrested in Washington state nine months later, having fled after volunteering samples of his blood, fingernail and hair to Sioux Falls investigators. The DNA evidence would become the key to his murder convictions, both in 1992 and again in 1997, after the Supreme Court granted him a second trial, ruling jurors heard evidence they should not have.

O’Connell’s mother solicited donations to finance her drive from her Lake Luzerne, N.Y., home to Sioux Falls. Her husband, Dave Curl, who was O’Connell’s stepfather, read a statement to reporters at the South Dakota State Penitentiary after the execution. “Finally, justice for Becky. He will no longer take another breath or hurt another child,” he said.

He said Moeller’s execution does not bring his family closure. But he said they are relieved that they no longer will hear about the more than $1.5 million spent to prosecute and house Moeller in prison. He said they were urged to focus on Becky, not her killer, when speaking to reporters. “Everyone keeps telling us to make this about Becky. There is no Becky because of Don Moeller. Whether right or wrong, we will hate that son of a bitch until the day we die. May he rot in hell.”

During the news conference, Tina Curl showed photographs of Becky at age 9 and of her grave site today. She also displayed an age-enhanced image of what her daughter might have looked like today, drawn by retired Det. Phil Toft, who has served as the sketch artist for local law enforcement. “They did a beautiful job,” Tina Curl said afterward. “The kid has my nose.”

Department of Corrections spokesman Michael Winder said Moeller ate an evening meal of scrambled eggs, link sausage, tater tots and drip coffee. He was taken from his holding cell at 9:38 p.m. and the intravenous lines were in his arms by 9:49.

Media witnesses said the execution itself was quick and apparently painless. “Within a minute or two, I heard no breathing. I didn’t see his chest go up and down,” said Steve Young, a reporter for the Argus Leader. About 10:12, Moeller’s face grew ashen and purple. “If this man was in pain, I didn’t see it. In a manner of minutes, he was gone. He laid on that table and went away forever.”

After several months on the loose, two murder trials and 21 years of appeals, Moeller said through his lawyer in July that he now accepted the consequences of his actions. He said the same to a federal judge earlier this month as he asked to end the process of appeals challenging the humanity of the drug that would end his life. “If the rape and murder of Rebecca O’Connell does not deserve the death penalty, then I guess nothing does,” he told U.S. District Judge Lawrence Piersol on Oct. 4.

His execution was the second this month and the fifth in a century for the state of South Dakota. Three others remain on death row. As they did with Eric Robert two weeks earlier, corrections officials ended Moeller’s life using a large dose of pentobarbital, the same fast-working barbiturate commonly used to euthanize animals. The state stopped using a series of execution drugs in recent years because of a shortage. The use of that drug was the focus of Moeller’s most recent appeal, which he decided to end in July.

A stepsister, Donna Nichols, intervened on his behalf to keep the appeal going, but Moeller was resolute that he was ready to die and Piersol closed the case. Gov. Dennis Daugaard saw no reason to delay the execution. “After more than 20 years, Donald Moeller finally admitted to killing young Becky O’Connell. He accepted his fate and dismissed attorneys who continued to oppose his execution. I take no pleasure in his death, but there are those who are so vile that executions are warranted,” the governor said in a written statement.

Cora Martin, who was married to Moeller’s stepbrother at the time of the crime, attended a prayer vigil Tuesday outside the penitentiary, holding a sign that read “Peace B with you, Don.” She said no other family members were at the prison Tuesday, but Moeller had written letters to several of them.

Despite his recent admissions, Martin still doesn’t believe her former brother-in-law committed the crimes. She concedes Moeller and his brothers had a hard life with an alcoholic, abusive mother, but she never saw the penchant for violence she’s read about in the media. “He never did anything to make me afraid,” Martin said. Moeller’s death leaves Tina Curl with questions she never expected he would answer. He did not respond to letters she sent. “The only thing I wanted from him was for him to tell me what he did to Beck, how he got her. But I guess I get the last word after all, instead of Moeller,” Curl said. “She didn’t deserve what happened to her. She was right full of life and that dirtbag took it out of her for his own sick satisfaction.”

KSFY-TV

The story of Becky O'Connell has made an impression on the lives of many here in Sioux Falls. That includes those who fought for his execution. KSFY News spoke with the original prosecutor in the case today. Donald Moeller has been on death row for a little more than 20 years.

And a lot has happened in those two decades. From computers, cell phones, the Internet and 9/11, the country has changed, and so has Sioux falls.

Former Lincoln County prosecutor Jeff Masten says he's disappointed it took 22 years to get to this point. "What's going to happen tonight, seems like it's out of some parallel universe. certainly happened in a different lifetime to me. So I guess, I'm a little bit numb feeling one way or another," Masten said. One of the strongest memories Masten has of the case is seeing Becky O'Connell's body for first time. "We were pretty well decided that if there hadn't been a justification for a death penalty verdict before in the 20 years preceding in South Dakota, this sure as heck was going to be a death penalty case if we figured out who did it," Masten said.

Masten says the initial days of the case were a nail-biter. "The thing that kept me up at night, and I think the thing that kept all 20 or so detectives up at night was just there wasn't a witness to the crime. all we had were some scattered circumstantial clues," Masten said.

Masten says he hates what Moeller did to South Dakota society. It forced parents to keep their children closer to home. "I think if you talk to any of the police officers or anybody who was actually around with younger children at that time, kids just disappeared off the street. and they certainly disappeared off playgrounds," Masten said.

Despite the crime's effect on the community, Masten holds no personal ill-will towards Moeller "A long time ago a supreme court justice told me, that you hate the crime, you don't hate the man. I think that was good advice 30 years ago when he gave it to me and is just as good today," Masten said.

Much of Becky's story exists in the minds of people who lived through it. The memories of Becky's death are as fresh today as they were 22 years ago. But tonight, the execution of Donald Moeller brings closure for some.

The Daily Republic

SIOUX FALLS, S.D. - The final words of a man executed Tuesday night for killing a 9-year-old girl appeared to some onlookers to mock those witnessing his death, including the child's mother. But prison officials say that may not have been the case. Donald Moeller, 60, was executed at the state penitentiary in Sioux Falls for the 1990 kidnapping, rape and murder of Becky O'Connell in Sioux Falls.

Before the lethal dose of pentobarbital was administered, he was asked for his last words, to which he replied, "No, sir." But then he looked up and, according to prison officials, asked: "They're my fan club?" Some speculated that Moeller was referring to people watching the execution, including Becky's mother and stepfather, who had traveled from their home in New York to watch his death.

But the Department of Corrections released a statement Wednesday afternoon saying witnesses and prison staff could hear inmates in nearby cells, possibly cheering. That led DOC officials to believe Moeller might have been referring to his fellow inmates, and some who witnessed the execution thought Moeller may have said, "Hear my fan club?" "Although one can only speculate, it is our belief that Inmate Moeller's reference to a `fan club' was intended toward the other inmates, and not those people witnessing or staffing the execution," the DOC statement said.

The confusion only adds another unanswered question for Becky's mother, Tina Curl, and stepfather, Dave Curl. Not only are they uncertain about the intent behind Moeller's last words, but they'd hoped to learn why Moeller targeted their daughter, who disappeared after leaving her Sioux Falls home to walk to a convenience store to buy sugar for lemonade.

Curl had written Moeller letters in prison asking for answers; he never replied. On his death bed, he offered no insight. Moeller fought his conviction and death sentence for years until July, when he announced that he was ready to accept death as the consequence of his actions _ and only then did he finally admit to killing Becky.

Moeller's death marked the second execution in South Dakota in as many weeks. On Oct. 15, Eric Robert died in the same death chamber for the April 2011 killing of prison guard Ronald "R.J." Johnson. There was no dispute in Robert's final words: "It is done."

Yankton Daily Press and Dakotan

Accused murderer and rapist Donald Moeller flashed a confident thumbs-up sign on Monday, Aug. 31, 1992, following closing statements during his trial in Yankton. The next day, Moeller was convicted in the 1990 rape and killing of 9-year-old Becky O’Connell, and three days later, a Yankton jury sentenced Moeller to death. That sentence is finally expected to be carried out next week. (P&D Archive Photo: Valerie Hoeppner)

In 1992, The trial Of Accused Child Murderer/Rapist Donald Moeller Was Moved To Yankton, And What Followed Was An Emotional Drama That Resulted In The Handing?Out Of South Dakota’s First Death Sentence In Decades. Moeller Fi

Although she served on the jury that condemned Donald Moeller to the death sentence more than 20 years ago, Paula Jones says the case still has a profound impact upon her life. The Yankton County jury of which she was a part convicted Moeller in September 1992 for the May 8, 1990, rape and murder of 9-year-old Rebecca O’Connell southeast of Sioux Falls near Lake Alvin. “Obviously, the death of a child is traumatic,” Jones said. “When it’s at the hand of someone else, I think that stays with you some time after the trial is over. After the trial, when I would go to sleep at night, I would see either (O’Connell’s) face or (Moeller’s) face when I closed my eyes.”

Moeller is expected to be executed next week. He told U.S. District Judge Lawrence Piersol at a hearing earlier this month, “I killed the little girl. It’s just that the punishment be concluded. I believe it’s a good thing, that the death penalty does inhibit further criminal acts.”

The seven-woman, five-man Yankton County jury deliberated 11 1/2 hours before delivering the guilty verdict in 1992. Another six hours of deliberation was required to agree on sentencing Moeller to death by lethal injection. The jurors struggled with their decision. While deliberating on the death sentence, they made four requests of Circuit Judge E.W. Hertz. First, they asked if the decision could be appealed. Hertz told them they could not use that information in making their decision. Requests were also denied to speak with a priest and see a Bible.

Finally, the jurors asked how much time they had before they were considered an undecided jury. Hertz responded that there was no time limit. When the death sentence was announced at approximately 10 a.m. Sept. 3, it ended a gruesome month-long trial that had been moved to Yankton County because of concerns about publicity around the case in the Sioux Falls area. Jurors were shown evidence that O’Connell had been raped, stabbed in the chest and back, slashed across her throat and shoulder, and sodomized.

Susan Kirkvold was the regional editor for the Press & Dakotan and covered the trial. Now an attorney in Manchester, N.H., she still recalls the many long hours put into reporting on the case. “I was so impressed with the attorneys, judge, law enforcement and other reporters and photographers I worked with,” she said. “I was impressed with how hard they worked to do everything right.” The case was every parent’s nightmare, Kirkvold noted — a little girl leaves home and doesn’t come back. “What I admire is the legal process that resolves these cases in a way that gives everyone a chance to have their say and present all the evidence to the best of their ability,” she said. “It helps people move on with their lives to the extent that is possible.”

Ultimately, the state Supreme Court overturned the conviction in 1996, ruling that improper evidence was used in the trial. However, a second trial held in Rapid City in 1997 convicted Moeller a second time and he was again sentenced to die. That sentence has been upheld by the state Supreme Court despite appeal.

Jones said she has followed the case closely in the years since the trial. She also visited the locales where the crime occurred to get a better sense of what happened. Whenever she sees a child walking alone at an intersection — just as O’Connell had been doing when she was kidnapped — Jones takes notice. “I think what haunts me is that moment (O’Connell) realized (Moeller) meant her harm,” Jones said. “You’re a child out in a secluded wooded area. There is no one to help you.”

Marcel Kathol also served on the jury. However, he said he has mostly put the trial behind him. One effect it had was that it made him keep a closer eye on his three girls as they grew up. Kathol and his wife tried to arrange their schedules so they could look after their children as much as possible and not depend on baby-sitters. “I tell people every day, ‘Take care of your kids. You were given these kids, so protect them and be there for them,’” he said.

O’Connell didn’t have that care in her life, according to Kathol. “I have one statement to make about all of this: Yeah, Moeller did it. But the mother (Tina Curl) should have taken some responsibility for all this,” he said. “We heard a lot of stuff about how Becky wandered from trailer to trailer looking for someone to hang out with or food. For a girl that young, that mother should have always known where she was. For some reason, that girl had free reign to go wherever she wanted. To me, that mother should take some responsibility. To me, she was a bad mom. I feel real bad for that kid because she came up in the wrong family.”

When deciding to sentence Moeller to the death penalty, Jones said she felt as if the jury was providing something she may not have had during her life. “I don’t feel that anyone who sat on that jury found in favor of the death penalty in an ‘eye for an eye’ or revenge frame of mind,” she stated. “I truly don’t think that factored in to the decision. I think we felt that we were there for her. She was 9 years old and kind of fended for herself. She was maybe more grown up than many 9 year olds. We felt we were looking out for her.”

Kathol said he hopes Moeller’s execution will deter future crimes. “I just hope whoever is thinking about doing something crazy like this — maybe this will stop some of it,” he stated.

Jones said the Yankton County and Rapid City juries were just following the law. “(Moeller) has to deal with the consequences of what he did,” she stated. “Our laws say that if you do this type of crime, this is what can happen.” But the focus now should not be on the crime, Jones added. “Obviously we can rail against what he did and be incensed by the fact he took a child’s life in the manner that he did, but that’s not going to bring Becky back,” she said. “If that passion could be turned toward something positive to help other children, that would be the best thing we could do for Becky.”

Reuters News

(Reuters) - A man convicted of the 1990 rape and murder of a 9-year-old girl was put to death on Tuesday night in a South Dakota execution witnessed by the victim's parents, who drove 1,400 miles from their New York home to watch him die. Donald Moeller, 60, had professed his innocence for more than two decades before finally admitting in early October that he had raped and fatally stabbed Becky O'Connell after abducting her from a Sioux Falls convenience store where she had gone to buy candy.

Moeller was pronounced dead by lethal injection at 10:24 p.m. local time at the state prison in Sioux Falls, according to the state corrections department. He was the second convicted killer put to death in South Dakota this month, but only the fourth since 1913.

O'Connell's mother, Tina Curl, and her stepfather, Dave Curl, drove from their home in Lake Luzerne, New York, to witness Moeller's execution. Photographs of Becky at age 9 and a portrait of what she might have looked like at age 32 were displayed by the Curls at a news conference following the execution and posted by the Argus Leader newspaper on its website. "He will no longer take another breath or hurt another child," Dave Curl said of Moeller, adding that the execution would never give them closure, though there was some feeling of relief. "Everyone keeps telling us to make this about Becky. There is no Becky because of Donald Moeller," Curl said. "Whether right or wrong, we will hate that son-of-a-bitch until the day we die. May he rot in hell."

According to court records, he had repeatedly raped and stabbed the girl. Her body was found in a wooded area with extensive knife wounds the morning after she vanished.

Moeller was convicted of rape and murder and sentenced to death in 1992, but was granted a new trial after the state Supreme Court ruled that testimony of previous attempted sexual assaults on three other people was inadmissible. He was convicted and sentenced again in 1997 but continued appeals until recent weeks, when he halted further efforts to seek a reprieve and admitted to the crimes in a hearing in early October. "If the rape and murder of Rebecca O'Connell does not deserve the death penalty, then I guess nothing does," he told the judge.

Moeller ate a last meal of scrambled eggs, sausage links, tater tots and drip coffee, the corrections department said. When asked whether he had any last words before his execution, Moeller replied, "No, sir," then asked, "They're my fan club?" in apparent reference to the witnesses for the execution.

Executions have been rare in South Dakota. Before this year, the state had put to death only two inmates since 1913. On October 15, it executed Eric Robert for the killing of prison guard Ron Johnson during a failed escape attempt. Moeller was the 34th inmate executed in the United States in 2012, according to the Death Penalty Information Center.

Pierre Capitol Journal

SIOUX FALLS, S.D. (AP) — A South Dakota inmate was executed Tuesday night for the 1990 rape and murder of a 9-year-old girl who disappeared after leaving her home to buy sugar at a nearby store so she could make lemonade. Donald Moeller, 60, received a lethal injection at the state penitentiary in Sioux Falls, marking South Dakota’s second execution this month in an unusual surge for a state that has carried out just two other death sentences since 1913. When asked if he had any last words, Moeller replied, “No sir,” and then said, “They’re my fan club?”

Moeller then was administered a lethal injection at 10:01 p.m. He took about eight heavy breaths before the breathing stopped and Moeller turned slightly pink. Moeller’s eyes remained open his skin turned ashen, then purple. The coroner checked for vital signs, and Moeller was pronounced dead at 10:24 p.m.

Moeller kidnapped Becky O’Connell from a Sioux Falls convenience store, where she’d gone to buy sugar to make lemonade at home. He drove her to a secluded area near the Big Sioux River, then raped and stabbed the girl. Her naked body was found the next day; investigators said her throat had been slashed.

Becky’s mother, Tina Curl, has been steadfast in her wish to watch Moeller die, even raising funds to cover the expenses to make the 1,400-mile trip from her home in New York state to Sioux Falls for the execution. After the execution, she showed pictures of Becky at 9 followed by a framed artist’s rending of what she would have looked like at 32. Her husband, Dave Curl, said Moeller will never hurt another child. “We despise that so-called man,” he said. “The death of Donald Moeller is not going to give us closure.”

Moeller initially was convicted in 1992, but the state Supreme Court overturned it, ruling that improper evidence was used at trial. He was again convicted and sentenced to die in 1997. The state Supreme Court affirmed the sentence, and Moeller lost appeals on both the state and federal levels. Though he fought his conviction and sentence for years, Moeller in July he said he was ready to accept death as the consequence of his actions. He admitted for the first time in court that he killed the girl. “I killed. I deserve to be killed,” he said.

But even as Moeller insisted he was ready to die, several motions were filed on his behalf to stop the execution despite his protests. Earlier this month, a federal judge dismissed a pending suit challenging South Dakota’s execution protocol after Moeller insisted he wanted no part of it. Moeller also distanced himself from a motion filed by a woman with loose family ties who argued that his decades in solitary confinement had made him incapable of voluntarily accepting his fate. That motion was dismissed Monday.

Moeller’s execution comes just two weeks after the Oct. 15 execution of Eric Robert for killing South Dakota prison guard Ronald “R.J.” Johnson during a failed escape attempt. Before that, the last execution in South Dakota was in 2007, when Elijah Page died by lethal injection for the murder of Chester Allan Poage, who was abducted and killed in a scheme to burglarize his mother’s home. In 1947, George Sitts was electrocuted for killing two law enforcement officers. And in 1913, Joseph Rickman was hanged for the murder of a woman and her daughter. They were among 17 inmates executed since 1877, the oldest of which came during the days of the Dakota Territory.

ProDeathPenalty.com

Rebecca O'Connell (Becky) was a nine-year-old girl who lived with her mother and stepfather in Sioux Falls, South Dakota. Becky was last seen by her parents on the evening of May 8, 1990, when she left their home to buy candy at a nearby convenience store. Later that night, Becky's mother and stepfather reported to the police that she was missing.

The following morning, two men found her body in a ditch in a wooded area near Lake Alvin in Lincoln County, South Dakota. An autopsy suggested she had been raped, vaginally and anally, and had sustained knife wounds to her throat, shoulder, chest, back, hip, and defensive wounds to her hands. A forensic pathologist opined that she died as a result of a cut to the jugular vein of her neck.

Following an investigation of Becky's death, the State charged Donald Moeller with rape in the first degree, felony murder in the first degree, and premeditated murder in the first degree. Three women testified at trial about attempted sexual assaults they had been subjected to from Moeller.

In January 1973, when C. B. was twenty-one years old, she worked at the Speedy Car Wash in Sioux Falls, South Dakota. On the morning of January 3, 1973, C. B. was on her way to work. She had stopped her car at the stoplight near Axtell Park in Sioux Falls. C. B. heard a women yell, "Get out, get out of my car." She heard a door slam. Then a man, whom she later identified as Donald Moeller, was pushing on the door handle on the passenger side of her car. Moeller was a stranger to her. He opened the door and slid into her car. He was holding a black-handled folding knife with a three-inch blade. Moeller poked C. B.'s leg with the knife and said, "Go down East Eighth and go straight and keep going." C. B. complied. C. B.'s car stalled and she and Moeller got out of the car. As he held the knife by her ribs, C. B. lifted the hood and checked the carburetor. Then she and Moeller got back into the car on the passenger's side. Moeller told her to continue driving straight, which she did. When they came upon a cornfield, he held the knife at her hip and told her to take her pants off. She turned the car off and threw the keys out the window. When she refused to remove her clothes, Moeller said, "If you don't, I'll kill you." C. B. replied, "You will have to kill me, because I won't do it." When she tried to slip out of the car, he grabbed her, held the knife to her neck, and said, "Do it or I'll kill you." She responded, "You'll have to kill me because I ain't going to do it for you or anybody else." Shaking, Moeller just sat and stared. He folded the knife and put it in his pocket. He proceeded to tell C. B. about his life. She retrieved her keys and told Moeller to get out of her car. Moeller told her to get in the car and pointed at the knife in his pocket. He told her to drive to work, so she drove to the Speedy Car Wash. He instructed her to tell her boss she had had a flat tire. He warned C. B. that she could look over her shoulder and see him or he could be in the back seat of her car. He walked up the road, saying he was headed to a friend's house. C. B. told her boss she had had a flat tire. Then, forty-five minutes later, she told him about the man with the knife.

In 1979, Moeller lived next door to K.M., then a thirteen-year-old boy, in a trailer park in Wright, Wyoming. K.M. had waved at Moeller a few times on his way to school. On February 10, 1979, K.M. noticed Moeller outside working on his car. K.M. was interested in car mechanics, and he and Moeller struck up a conversation. Moeller invited K.M. into his trailer, where they talked and played cards. K.M.'s father gave him permission to eat dinner at Moeller's home. K.M. noticed a black buck knife lying on the table in Moeller's kitchen. When K.M. began to open the knife, Moeller told him not to play with it because it was very sharp. He demonstrated by slicing through paper with the knife. After dinner, Moeller gave K.M. two glasses of wine. Then Moeller made a $100 bet that K.M. could not drink five glasses of wine in two minutes. K.M. did, but Moeller did not pay him the money. Moeller then offered to take him to Gillette, Wyoming, where he could help Moeller repair a car. Moeller insisted that K.M. receive written permission from his father. K.M.'s father came to Moeller's trailer with a note, giving his son permission to take the trip. K.M.'s father returned to his trailer. K.M. and Moeller resumed playing cards. When K.M. complained of the heat in the trailer, Moeller let him use his robe. K.M. removed all his clothes, except for his underwear, and put on the robe. Moeller instructed K.M. to place a jar of Vaseline on the nightstand in Moeller's bedroom, stating he would explain the need for the Vaseline later. Then Moeller asked K.M. if he had ever ejaculated, and K.M. replied that he had not. Moeller offered to bet K.M. $50 that he could not ejaculate. K.M. refused the bet. Moeller then bet him $50 that he could not escape if Moeller tied his hands behind his back. Moeller tied K.M.'s hands behind his back and placed a dog chain around his neck, while K.M. knelt on the bed. Once K.M. was tied, Moeller said, "I want to have sex with you." K.M. refused and Moeller stuck the buck knife to K.M.'s throat and said, "You either have a choice, you can do oral sex with me or let me make — have sex with you through your rear end or I'll kill you." K.M. asked Moeller to remove the dog chain so he could breathe. Moeller laid his knife down and removed the dog chain from K.M.'s neck. K.M. then jumped off the bed and ran for the front door. Moeller grabbed the knife and made a cut two inches long and a quarter inch deep in K.M.'s leg. As K.M. struggled to open the door, Moeller approached with the knife. K.M. slammed against the door and fell into the snow. Moeller grabbed K.M.'s waist and legs, but K.M. escaped into his trailer. K.M. told his father, "That son-of-a-bitch tried to kill me." In November or December of 1989, T.W. met Moeller when he gave an acquaintance of hers a ride to T.W.'s home.

She did not see Moeller again until January 20, 1990. At around 10:00 p.m. on that date, T.W. heard a knock at her door. After yelling, "Come in," she turned to see Moeller inside her door. She remembered Moeller's face but could not remember his name. Moeller sat down and asked if T.W. liked to go out, drink or dance. She replied, "No." Moeller asked if he could come back another time, and she told him he could, as long as he only wanted to watch television. At around 11:00 p.m. that same night, T.W. heard a tap on the door and then someone entered. It was Moeller. He asked if he could watch television with her, and she said it was okay. Moeller had brought a bottle of Jack Daniels whiskey with him and handed a soft drink to T.W. He walked out of the living room towards the kitchen, then returned to the living room with a knife. It was a folding knife, with a three and a half inch blade and a brown handle. Moeller ran the blade up and down T.W.'s breasts, saying "Lift up your shirt or I'm going to cut you. Show them to me or you're going to get cut." When she told him to stop, he ran the flat side of the blade up and down her arm, saying, "That's the side of the knife, do you want to feel the edge?" Then he ran the knife up and down her breasts again. T.W. responded, "If you don't stop—If my baby wakes up because of this shit I'm going to be pissed." Moeller said, "Who do you think is going to get cut first, you or her?" T.W. grabbed the knife and was cut as Moeller pulled it away. She told him, "I'm going to call the cops." She nudged past him and went out the back door. On her way out, Moeller said, "I didn't know you were going to get cut." T.W. ran to the intersection and flagged down a car. Concerned for her daughter, she returned to the house and saw Moeller driving out of her driveway and memorized his license plate number. Her child slept undisturbed during the incident.

Moeller was sentenced to life without parole as a habitual offender in the aggravated assault of T.W. The jury convicted Moeller on all three counts against him in the murder of Becky O'Connell.

As to the murder convictions, the jury recommended a sentence of death and the trial court entered a warrant of execution. At his trial, Moeller was given the opportunity to have DNA tests preformed on the evidence taken from the victim, but declined to have the tests done. After Moeller was convicted and sentenced to death because of the heinousness of the crime, he then asked for DNA testing as part of a federal habeas corpus writ. DNA tests were performed on evidence including semen samples found in the victim, fluid found on the victim’s thigh, and on fluid found on some fingernail clippings. The fluid on the victim’s thigh and on the fingernail clippings was determined to be from a female donor. The semen, however, matched a DNA sample taken from Moeller to a probability of 1 in 14.8 billion. Moeller then requested additional DNA testing on the fluid from the victim’s thigh and the fingernail clippings to determine of they came from the same female donor. Upon presentment of the match between Moeller’s DNA and the DNA in the semen sample found on the victim, the judge denied Moeller further DNA testing on the thigh fluid and fingernail clippings because the tests already performed clearly established Moeller’s guilt of the capital crime.

State v. Moeller, 548 N.W.2d 465 (S.D. 1996). (Direct Appeal - Reversed)

Defendant was convicted in the Circuit Court, First Judicial Circuit, Lincoln County, E.W. Hertz, J., of first-degree rape and first-degree murder, and he was sentenced to death by lethal injection for the murder conviction. He appealed. The Supreme Court, Miller, C.J., held that: (1) polymerase chain reaction (PCR)/deoxyribonucleic acid (DNA) typing procedure was valid for use with forensic evidence; (2) expert witness, who conducted PCR/DNA typing procedure, was qualified to testify as an expert; (3) trial court properly allowed testimony of soil expert, even though he testified to a mere possibility that soil found in wheel wells of defendant's vehicle was from crime scene; (4) death penalty is not cruel punishment per se in violation of South Dakota Constitution; (5) statute, which provides that aggravating factor for imposing death penalty is whether offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim, is not unconstitutionally vague and overly broad; (6) fact that South Dakota sentencing statutes do not specify whether certain number of jurors must find mitigating factors before such factors can influence their sentence recommendation does not create the likelihood that jury will impose death sentence arbitrarily. Gilbertson, J., concurred in part and dissented in part in separate opinion.

MILLER, Chief Justice.

[¶ 1] In this appeal, Donald Moeller challenges his conviction of first-degree rape and first-degree murder. He was sentenced to twenty-five years in prison on the rape charge. He received a sentence of death by lethal injection for the murder conviction.FN1 Moeller is currently serving a life sentence without possibility of parole for crimes that are unrelated to this case. See State v. Moeller, 511 N.W.2d 803 (S.D.1994).

[¶ 2] This appeal involves, among other issues, a challenge to South Dakota's death penalty which was reenacted in 1979. As set forth in detail later herein, we uphold the constitutionality of this state's death penalty statutes. We reverse the convictions and remand, because prior bad acts evidence was improperly received into evidence and prevented Moeller from receiving a fair trial. FACTS

[¶ 3] Rebecca O'Connell (Becky) was a nine-year-old girl who lived with her mother and stepfather in Sioux Falls, South Dakota. Becky was last seen by her parents on the evening of May 8, 1990, when she left their home to buy candy at a nearby convenience store. Later that night, Becky's mother and stepfather reported to the police that she was missing. The following morning, two men found her body in a wooded area in Lincoln County, South Dakota. An autopsy suggested she had been raped, vaginally and anally, and had sustained knife wounds to her neck, shoulder, chest, back, hip, and hands. A forensic pathologist opined that she died as a result of a cut to the jugular vein of her neck.

[¶ 4] Following an investigation of Becky's death, the State charged Donald Moeller with rape in the first degree, felony murder in the first degree, and premeditated murder in the first degree. The jury convicted Moeller on all three counts. As to the murder convictions, the jury recommended a sentence of death and the trial court entered a warrant of execution. Additional facts will be recited herein as they relate to specific issues.

ISSUE 1.

[¶ 5] Did the trial court abuse its discretion in admitting “prior bad acts” evidence involving three sexual assaults allegedly committed by Moeller in 1973, 1979, and 1990?

[¶ 6] In this country it is a settled and fundamental principle that persons charged with crimes must be tried for what they allegedly did, not for who they are. United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir.1985). The Ninth Circuit Court of Appeals has observed: Under our system, an individual may be convicted only for the offense of which he is charged and not for other unrelated criminal acts which he may have committed. Therefore, the guilt or innocence of the accused must be established by evidence relevant to the particular offense being tried, not by showing that defendant has engaged in other acts of wrongdoing. Id. No matter how vile or despicable a person may appear to be, he or she is entitled to a fair trial. Constitutional provisions clearly provide that individuals may only be convicted for the crimes with which they are charged; they may not be subject to criminal conviction merely because they have a detestable or abhorrent background. Id. Our entire system of justice would deteriorate if we did not jealously protect these constitutional safeguards for all citizens.

A. Facts

[¶ 8] The State filed a motion to introduce prior bad acts testimony from three individuals who claimed that Moeller attempted to sexually assault them while threatening them with a knife. Their testimony is summarized as follows.

1973 Incident. Testimony of Carolyn Beshaw: In January 1973, when Carolyn Beshaw was twenty-one years old, she worked at the Speedy Car Wash in Sioux Falls, South Dakota. On the morning of January 3, 1973, Beshaw was on her way to work. She had stopped her car at the stoplight near Axtell Park in Sioux Falls. Beshaw heard a women yell, “Get out, get out of my car.” She heard a door slam. Then a man, whom she later identified as Donald Moeller, was pushing on the door handle on the passenger side of her car. Moeller was a stranger to her. He opened the door and slid into her car. He was holding a black-handled folding knife with a three-inch blade. Moeller poked Beshaw's leg with the knife and said, “Go down East Eighth and go straight and keep going.” Beshaw complied. Beshaw's car stalled and she and Moeller got out of the car. As he held the knife by her ribs, Beshaw lifted the hood and checked the carburetor. Then she and Moeller got back into the car on the passenger's side. Moeller told her to continue driving straight, which she did. When they came upon a cornfield, he held the knife at her hip and told her to take her pants off. She turned the car off and threw the keys out the window. When she refused to remove her clothes, Moeller said, “If you don't, I'll kill you.” Beshaw replied, “You will have to kill me, because I won't do it.” When she tried to slip out of the car, he grabbed her, held the knife to her neck, and said, “Do it or I'll kill you.” She responded, “You'll have to kill me because I ain't going to do it for you or anybody else.” Shaking, Moeller just sat and stared. He folded the knife and put it in his pocket. He proceeded to tell Beshaw about his life. She retrieved her keys and told Moeller to get out of her car. Moeller told her to get in the car and pointed at the knife in his pocket. He told her to drive to work, so she drove to the Speedy Car Wash. He instructed her to tell her boss she had had a flat tire. He warned Beshaw that she could look over her shoulder and see him or he could be in the back seat of her car. He walked up the road, saying he was headed to a friend's house. Beshaw told her boss she had had a flat tire. Then, forty-five minutes later, she told him about the man with the knife.

1979 Incident. Testimony of Kenneth Moore: In 1979, Moeller lived next door to Kenneth Moore, then age thirteen, in a trailer park in Wright, Wyoming. Moore had waved at Moeller a few times on his way to school. On February 10, 1979, Moore noticed Moeller outside working on his car. Moore was interested in car mechanics, and he and Moeller struck up a conversation. Moeller invited Moore into his trailer, where they talked and played cards. Moore's father gave him permission to eat dinner at Moeller's home. Moore noticed a black buck knife lying on the table in Moeller's kitchen. When Moore began to open the knife, Moeller told him not to play with it because it was very sharp. He demonstrated by slicing through paper with the knife. After dinner, Moeller gave Moore two glasses of wine. Then Moeller made a $100 bet that Moore could not drink five glasses of wine in two minutes. Moore did, but Moeller did not pay him the money. Moeller then offered to take him to Gillette, Wyoming, where he could help Moeller repair a car. Moeller insisted that Moore receive written permission from his father. Moore's father came to Moeller's trailer with a note, giving his son permission to take the trip. Moore's father returned to his trailer. Moore and Moeller resumed playing cards. When Moore complained of the heat in the trailer, Moeller let him use his robe. Moore removed all his clothes, except for his underwear, and put on the robe. Moeller instructed Moore to place a jar of Vaseline on the nightstand in Moeller's bedroom, stating he would explain the need for the Vaseline later. Then Moeller asked Moore if he had ever ejaculated, and Moore replied that he had not. Moeller offered to bet Moore $50 that he could not ejaculate. Moore refused the bet. Moeller then bet him $50 that he could not escape if Moeller tied his hands behind his back. Moeller tied Moore's hands behind his back and placed a dog chain around his neck, while Moore knelt on the bed. Once Moore was tied, Moeller said, “I want to have sex with you.” Moore refused and Moeller stuck the buck knife to Moore's throat and said, “You either have a choice, you can do oral sex with me or let me make –––have sex with you through your rear end or I'll kill you.” Moore asked Moeller to remove the dog chain so he could breathe. Moeller laid his knife down and removed the dog chain from Moore's neck. Moore then jumped off the bed and ran for the front door. Moeller grabbed the knife and made a cut two inches long and a quarter inch deep in Moore's leg. As Moore struggled to open the door, Moeller approached with the knife. Moore slammed against the door and fell into the snow. Moeller grabbed Moore's waist and legs, but Moore escaped into his trailer. Moore told his father, “That son-of-a-bitch tried to kill me.”

1990 Incident. Testimony of Tracy Warner: In November or December of 1989, Tracy Warner met Moeller when he gave an acquaintance of hers a ride to Warner's home. She did not see Moeller again until January 20, 1990. At around 10:00 p.m. on that date, Warner heard a knock at her door. After yelling, “Come in,” she turned to see Moeller inside her door. She remembered Moeller's face but could not remember his name. Moeller sat down and asked if Warner liked to go out, drink or dance. She replied, “No.” Moeller asked if he could come back another time, and she told him he could, as long as he only wanted to watch television. At around 11:00 p.m. that same night, Warner heard a tap on the door and then someone entered. It was Moeller. He asked if he could watch television with her, and she said it was okay. Moeller had brought a bottle of Jack Daniels whiskey with him and handed a soft drink to Warner. He walked out of the living room towards the kitchen, then returned to the living room with a knife. It was a folding knife, with a three and a half inch blade and a brown handle. Moeller ran the blade up and down Warner's breasts, saying “Lift up your shirt or I'm going to cut you. Show them to me or you're going to get cut.” When she told him to stop, he ran the flat side of the blade up and down her arm, saying, “That's the side of the knife, do you want to feel the edge?” Then he ran the knife up and down her breasts again. Warner responded, “If you don't stop—If my baby wakes up because of this shit I'm going to be pissed.” Moeller said, “Who do you think is going to get cut first, you or her?” Warner grabbed the knife and was cut as Moeller pulled it away. She told him, “I'm going to call the cops.” She nudged past him and went out the back door. On her way out, Moeller said, “I didn't know you were going to get cut.” Warner ran to the intersection and flagged down a car. Concerned for her daughter, she returned to the house and saw Moeller driving out of her driveway. Her child slept undisturbed during the incident.

B. Discussion

[¶ 10] Prior to trial, Moeller moved to suppress the testimony of Beshaw, Moore, and Warner. After a hearing, the trial court held the testimony admissible in the State's case-in-chief. The court ultimately concluded that the extrinsic evidence, if believed by the jury, was relevant to show common method, plan or scheme, intent, identity, and motive. In justifying the relevance of the other acts evidence, the trial court seemed to identify five common marks between the crimes charged in the indictment and the “prior bad acts”: (1) Moeller had some acquaintanceship with or knowledge of all the victims; (2) his object was always to obtain sex; (3) he was willing to threaten reluctant victims with a pocket or buck-style knife; (4) he committed the acts within his own general neighborhood; and (5) his attacks were “mostly opportunistic” as opposed to planned attacks intended to conceal the identity of the perpetrator.FN2 The court also concluded that the probative value of the evidence was not substantially outweighed by its prejudicial effect. At trial, before each of the other acts witnesses testified, the court instructed the jury that the testimony could only be used to show common method, plan or scheme, intent, identity and motive. The trial court reiterated this instruction prior to the jury's guilt deliberations. FN2. The record does not support the minority opinion's assertion that the trial court identified ten common marks between the crimes charged and the prior bad acts. The list of ten similarities identified in the court's Findings of Fact and Conclusions of Law dealt with similarities among the prior bad acts, not similarities among the prior bad acts and the crimes committed against Becky.

Even if we assume the trial court intended this list as a catalogue of the common factors between the crimes charged and the prior bad acts, many of the ten “common marks” are not present in Becky's case. For instance, one of the ten similarities is “

[i]n each instance the victim was able to identify the Defendant.” Becky was killed and was unable to name her assailant. Another common mark listed by the trial court is that Moeller threatened to kill his victims. There is no evidence that Becky's assailant warned her that she would be killed or otherwise threatened her with a knife prior to her death. Likewise, the trial court's finding that “in each instance the Defendant committed the act within his own general neighborhood” is not true in Becky's case. The evidence indicated that Becky's rape and murder occurred in a secluded area near Lake Alvin, some fourteen miles from Moeller's home in the city of Sioux Falls.

The trial court's finding that each act involved a folding knife with approximately the same or similar length blade also does not apply in Becky's case. (The trial court essentially restated this finding three times in the list of “ten” similarities). As noted later in this opinion, there was no evidence proving that Becky's assailant used a folding or buck-style knife or that the length of the blade was similar to the length of the knives used to assault the other acts victims. Another common factor listed by the trial court is “

[i]n each instance the attack was opportunistic as opposed to a planned attack with the intent to conceal the identity of the perpetrator.” However, the State specifically argued to the jury that Moeller killed Becky to conceal his identity. The trial court's finding that “in each instance the Defendant had a passing knowledge or acquaintance of the victim” also fails. One of the other acts victims was a stranger to Moeller and Moeller's knowledge or acquaintanceship with Becky is highly questionable.

In all, eight of the “ten” common marks listed in the court's findings and conclusions are absent in Becky's case. Another entry in the list of ten similarities, that Moeller had two folding knives in his possession when he was arrested for Becky's murder, does not prove a signature method common to the other acts and the crimes charged. It simply shows that Moeller carried knives similar to those he used in assaulting Beshaw, Warner and Moore. Since the type of knife used to murder Becky was never determined, the critical link between Moeller's history of assaults and Becky's death is missing. The only similarity that remains in this “list of ten” is that the object in each instance was to obtain sex. For reasons discussed later in this opinion, this finding is insufficient to warrant admission of other acts evidence.

[¶ 11] Moeller asserts the judge abused his discretion in admitting the testimony of Beshaw, Moore, and Warner. First, he contends the dissimilarities between the prior bad acts and the charged offenses were so great as to defeat the State's claim that the other acts were relevant to prove identity. He notes that the victims were of different ages and gender and the details of the crimes were decidedly different. He also asserts that some of the common marks identified by the trial court were in fact absent. Second, he argues that the 1973 and 1979 incidents were too remote to be relevant to the charged offenses, which occurred in 1990. Finally, he claims the probative value of the evidence was substantially outweighed by the danger of unfairly prejudicing the defendant, confusing the issues, and misleading the jury.

[¶ 12] Generally, evidence of crimes or acts other than the ones with which the defendant is charged are inadmissible, unless certain exceptions apply. SDCL 19–12–5; State v. Thomas, 381 N.W.2d 232, 235 (S.D.1986). SDCL 19–12–5 provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Under the statute, prior bad acts evidence is not admissible to show that, merely because a defendant committed a similar offense on another occasion, he has a propensity to commit the offense charged. SDCL 19–12–5; State v. Steele, 510 N.W.2d 661, 668 n. 8 (S.D.1994); John W. Strong, McCormick on Evidence § 190 at 798 (4th ed. 1992); 2 J. Weinstein & M. Berger, Weinstein's Evidence, ¶ 404

[04] at 404–26 (1992). There are sound policy and constitutional reasons for this rule.

Introduction of evidence that the defendant committed other crimes and unwholesome acts may lead jurors to return a verdict of guilty for reasons other than finding all the elements of the alleged crime beyond a reasonable doubt. Although reasonable doubt of guilt exists on this occasion, the jury might conclude the defendant is a “bad man,” who deserves punishment regardless of his innocence of the crime charged and warrants imprisonment to prevent future maleficent acts. Such results defeat the letter and policy of substantive criminal law mandating conviction based upon a non-vague concrete statute; instead, jurors have found the defendant guilty based upon past unsavory acts without necessarily violating any criminal statute in the process. Alternatively, and just as improperly, upon learning that the accused committed other crimes or wrongs, jurors might infer that the defendant has a propensity to commit crimes and probably committed this crime as charged. State v. Werner, 482 N.W.2d 286, 295 (S.D.1992) (Amundson, J., concurring in part and dissenting in part) (quoting Patterson, Evidence of Prior Bad Acts: Admissibility Under the Federal Rules, 38 Baylor L.Rev. 331, 332–33 (1986)).

[¶ 13] Under SDCL 19–12–5, the trial court must follow a two-step analysis when ruling on admissibility of other acts evidence: 1. Is the intended purpose for offering the other acts evidence relevant to some material issue in the case (factual relevancy), and 2. Is the probative value of the evidence substantially outweighed by its prejudicial effect (logical relevancy). Steele, 510 N.W.2d at 667. We review the trial court's decision to admit such evidence under the abuse of discretion standard. State v. Ondricek, 535 N.W.2d 872, 873 (S.D.1995) (citing Steele, 510 N.W.2d at 667).

[¶ 14] In this case, the trial court ruled that the two-part test was satisfied. The court instructed the jury that the other acts testimony could be used as proof of common method, plan or scheme, intent, identity, and motive. All of these issues were material to the State's circumstantial case.

[¶ 15] Moeller's defense rested on his assertion that he did not rape and murder Becky O'Connell. Therefore, his identity as the assailant was clearly in issue. Furthermore, the identity exception to the extrinsic evidence rule is closely related to other exceptions contained in the rule; showing that a similarity exists in method or motive between the other acts and the charged offense, or that the other acts and the charged offense were part of a larger plan or scheme, tends to identify the defendant as the perpetrator. McCormick on Evidence, supra, § 190 at 808; Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 114 at 677–78 (2nd ed 1994). See also Thomas, 381 N.W.2d at 236–37. Hence, offering the other acts evidence as proof of motive, a common method, plan or scheme all related to identifying Moeller as the perpetrator. Finally, whether Moeller possessed a murderous intent, i.e., a premeditated design to kill, was directly relevant to the allegation of premeditated murder leveled against him.

[¶ 16] While the bad acts evidence related to material issues in the case, the probative value of the evidence was minimal. When seeking to prove identity through a common criminal method, the probative value of prior bad acts evidence is directly related to the factual similarities between the other acts and the charged offenses. The common method or “modus operandi” exception is used where two or more crimes exhibit a similar pattern “that is so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer.” State v. Champagne, 422 N.W.2d 840, 842–43 (S.D.1988). The inference is that “

[s]ince the defendant acted in a distinctively similar manner on another occasion, it is more likely he (rather than someone else) did the act on the occasion of the charged crime.” Id. at 843. Here, the similarities between the other acts and the alleged crimes against Becky are so slight and unremarkable, and the dissimilarities are so great, that the probative value of the extrinsic evidence is negligible.

[¶ 17] We begin by noting one of the common marks identified by the trial court is absent. Moeller did not have an acquaintanceship with or knowledge of all the victims. Beshaw testified Moeller was a stranger at the time he allegedly assaulted her, and she did not testify to any prior connection between herself and Moeller. The trial court's finding that Moeller had an acquaintanceship or knowledge of Becky is also highly questionable. The trial court found that shortly before Becky's disappearance, she and Moeller were in a convenience store at approximately the same time. The trial court also found that Moeller and Becky lived within blocks of each other in the same general neighborhood in North Sioux Falls. This meager evidence hardly supports the conclusion that Moeller was acquainted with or knew of Becky.

[¶ 18] The trial court also found that “in each instance the attack was opportunistic, as opposed to a planned attack with the intent to conceal the identity of the perpetrator.” Yet, according to State's own closing argument, this is not so. State argued to the jury that Moeller's motive for killing Becky was to prevent her from identifying him as her assailant. Therefore, under State's theory of the case, the “intent to conceal the identity of the perpetrator” was clearly present. Furthermore, although State described Beshaw's assault and Becky's rape and murder as “opportunistic,” State told the jury that Moore's attack “has both characteristics of being opportunistic and planned.” State then emphasized Moeller's efforts to con Moore into coming to his home and spending the night. As to the assault on Warner, State noted the lapse of time between Moeller's introduction to Warner and his visit to her home on the night of the assault. The State told the jury, “There was some elements of planning in this.”

[¶ 19] The three remaining similarities between the prior bad acts and the charged offense are not so distinctive or unique as to justify admission of prior bad acts evidence. See id. The trial court stated that Moeller's object was always to obtain sex. However, any sexual assault crime involves a perpetrator who seeks sexual gratification. Permitting other acts evidence on the basis of this broad similarity invites the jury to draw the forbidden propensity inference. A more specific factual showing is required to allow admission of extrinsic evidence.

[¶ 20] The trial court's observation that Moeller committed the acts within his own general neighborhood does little to distinguish Moeller as the perpetrator, particularly when one considers the broad area apparently defined as his neighborhood. While Moeller lived next door to Moore, the State concedes he lived as far as ten to fifteen blocks from Warner. The trial court found that Moeller and Beshaw lived within the same general neighborhood, but Moeller's assault of Beshaw occurred in downtown Sioux Falls and proceeded to a corn field east of the city. Likewise, while Moeller lived within several blocks of Becky's home, the crime scene was located in a secluded area approximately fourteen miles south of Moeller's home in Sioux Falls.

[¶ 21] Finally, although the instant crimes and the other acts involved a knife as a weapon, the State failed to prove a more detailed comparison. In seeking admission of the prior bad acts evidence, the State specifically represented to the trial court that the knife wounds on Becky's body were inflicted by the same type of knife used against the other acts victims. State's brief to the trial court reads in relevant part: The most obvious common element between the crime charged in this Indictment and the other acts is the use of a folding pocket knife, whether denominated a jack knife or buck knife. Moeller used the same type of knife on Carolyn Kaye Mullinix

[Beshaw] in 1973, on Kenneth Everett Moore in 1979 and on Tracy Warner in 1990. Moeller was apprehended in Tacoma Washington, with two of the same type of knives in his possession. The knife wounds on the body of Rebecca O'Connell are also consistent with the use of this type of knife. (Emphasis supplied).

The State further argued: Here, Donald Moeller's past assaults signs his name to the body found at Lake Alvin on May 9, 1990. Moeller invariably uses a folding pocket, or buck, knife to commit his sexual assaults. In its memorandum decision permitting the admission of the other acts testimony, the trial court made particular note of the State's representation concerning the type of knife used to murder Becky. The court wrote: The most distinctive common mark between the crimes charged in the indictment and the other crimes-act evidence sought to be introduced is the use by the defendant of the same type of knife in all three incidents. The assault in 1973, the 1979 assault against a nine year old boy, Kenneth Everett Moore, and the Tracy Warner assault in 1990, all involved a pocket knife or some kind of buck knife. Furthermore, when defendant was apprehended in Tacoma, Washington, in 1991, he had two of the same type knives in his possession. The State represents that the knife wounds on the body of Rebecca O'Connell will be shown as consistent with the use of this type of knife. (Emphasis supplied).

[¶ 22] Significantly, the evidence at trial did not support the State's claim. The knife in each of the other acts cases was a folding knife, described by two witnesses as having a three to three-and-a-half inch blade. In contrast, the knife used in the murder of Becky was never found, and State's witnesses could not identify either the type of knife or the length of blade involved in her death.

[¶ 23] In an effort to draw a comparison between the prior bad acts and the murder of Becky, the minority opinion notes that Moeller had two folding pocket knives in his possession when he was arrested for Becky's murder. However, there is no testimony identifying either of these pocket knives as the murder weapon. In fact, as noted above, there is no proof at all that Becky died from a folding or buck-style knife. Whether such a knife was used against Becky remains unknown. Any assertion by the minority opinion that Becky's assailant used a folding or buck-style knife is pure conjecture.

[¶ 24] Furthermore, the record does not support suggestions by the dissent that the length of the blade used against Becky was similar to the three or three and one-half-inch blade used in the assaults of Beshaw and Warner. The minority opinion points to testimony of a forensic pathologist, Dr. Randall, concerning a four-inch chest wound and an indication that the knife blade had been inserted to the hilt in making the wound. The minority states, “Clearly ... the blade did not exceed four inches in length and could not have been substantially shorter than that.” However, this conclusion goes far beyond the evidence in the record. Dr. Randall testified as follows:

Prosecutor Masten: Were you able to estimate roughly the length of the blade that would have caused that wound? Dr. Randall: No. As I mentioned, the depth of the wound was four inches but a shorter blade could have produced that due to the compression of the chest. So you really can't make any estimation of the exact length of the blade. (Emphasis supplied.) On cross-examination, Dr. Randall again testified that he was unable to establish the length of the blade: Defense Attorney Gienapp: And from either the slashing wounds or any of the puncture wounds, you can't tell the length of the knife or other sharp object that was utilized, is that correct? Dr. Randall: That's correct. Even the State concedes “Dr. Randall was unable to determine the length of the blade used to kill Becky.” The contention in the minority opinion that “the blade did not exceed four inches in length and could not have been substantially shorter than that” is simply not supported by a fair and complete review of the record.

[¶ 25] Having failed to establish the type of knife or length of blade used against Becky, the State is left with the generic observation that all the offenses involved the use of a knife. However, the use of a knife as a weapon is not so distinctive or of such an unusual pattern to distinguish Moeller as the assailant from the many other perpetrators who rape and murder by knife. The minority opinion refers to sixteen reported cases of rape, assault, and murder in South Dakota that involved the use of a knife as a weapon. Moeller was not identified as the assailant in any of these cases, even though the minority opinion would have us believe that the use of a knife is Moeller's “signature.” Additionally, we can only surmise about the countless rape, murder, and assault cases involving the use of knives that are never tried before a jury, appealed to this Court, and published in a reporter. Focusing on only reported cases is an unrealistic and unscientific means of deciding whether the use of a folding or buck-style knife is a unique characteristic. Importantly, other courts have regarded the use of a knife as insufficient to establish a modus operandi, even when considered together with other identifiers like an accompanying verbal threat. See United States v. Pisari, 636 F.2d 855, 859 (1st Cir.1981) (in the absence of a similar or distinctive knife, the single fact that “one invokes the threat of using a knife falls far short of a sufficient signature or trademark upon which to posit an inference of identity”); People v. Connors, 82 Ill.App.3d 312, 37 Ill.Dec. 771, 776, 402 N.E.2d 773, 778 (1980) (the general similarities of robbery with a gun at night near the victim's car coupled with statements like “Don't make me shoot you” and “If you move I'll shoot” are “common to crimes in general, and not so distinctive as to earmark each as the conduct of the same perpetrator”); White v. Commonwealth, 9 Va.App. 366, 388 S.E.2d 645, 647 (1990) (displaying a knife to a victim is not so unusual as to serve as a signature), overruled on other grounds after reh'g en banc, Lavinder v. Commonwealth, 12 Va.App. 1003, 407 S.E.2d 910, 911 (1991); Foster v. Commonwealth, 5 Va.App. 316, 362 S.E.2d 745, 749 (1987) (testimony defendant approached victim with a small handgun and raped and robbed her “characterizes numerous offenses by other perpetrators” and is not so distinctive as to act as a signature).

[¶ 26] The minority opinion cites State v. Martin, 118 Idaho 334, 796 P.2d 1007, 1011 (1990), as authority for affirming the trial court's admission of the other acts evidence. The minority states: “Affirming the trial court under an abuse of discretion standard of review, the Idaho Supreme Court noted that in all three cases, the perpetrator used ‘a kitchen knife to perpetrate the crime.’ ” Unfortunately, this brief summary creates the impression that the consistent use of a kitchen knife was sufficient to admit the other acts testimony. That is clearly not the holding in Martin. In fact, the Martin court identified a long list of similarities between the other acts and the charged offense: (1) All were rape-type cases. (2) All involved young, unattached women. (3) All victims knew Martin. (4) All rapes occurred in the victim's residence. (5) All victims were surprised by their assailant. (6) The assailant always wore some type of facial covering. (7) The assailant always forced his way into the residence. (8) The assailant always used a kitchen knife to perpetrate the crime. (9) The knife always came from the victim's kitchen. (10) The assailant always left the knife behind when fleeing. (11) Apparently, the assailant always left without taking objects from the residence. (12) The assailant always placed the knife by the victim's throat to perpetrate the crime. (13) The assailant always threatened to kill the victim if she did not comply with his desires. (14) The victims were all injured by the knife. Id. 796 P.2d at 1011. The numerous and distinctive similarities detailed in Martin are noticeably absent in this case.

[¶ 27] When considered in combination, either a large number of common identifiers or a smaller number of highly distinctive characteristics may demonstrate a modus operandi. United States v. Ingraham, 832 F.2d 229, 233 (1st Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988). “The more distinctive the identifiers, the fewer of them need be present to demonstrate the requisite signature.” Id. (citations omitted). Here, the only similarities present in the prior bad acts and the crimes against Becky are the use of a knife, the desire to obtain sex, and the location of Moeller's residence within fifteen blocks or less of his victims' homes. As noted previously, these few facts are not so distinctive as to identify Moeller as the man who raped and murdered Becky O'Connell.

[¶ 28] Meanwhile, the marked dissimilarities between the other acts and the charged offenses defy any signature method that would identify Moeller as Becky's assailant. In allowing bad acts evidence to prove either identity or specific intent, our cases have routinely focused on two important factors: (1) similar victims and (2) similar crimes. See State v. Christopherson, 482 N.W.2d 298, 301–02 (S.D.1992); Werner, 482 N.W.2d at 289–90; State v. Perkins, 444 N.W.2d 34, 38 (S.D.1989); State v. Titus, 426 N.W.2d 578, 580 (S.D.1988); Thomas, 381 N.W.2d at 236–37; State v. Roden, 380 N.W.2d 669 (S.D.1986); State v. Means, 363 N.W.2d 565, 568 (S.D.1985). As we observed in Thomas, 381 N.W.2d at 236 (quoting People v. Williams, 115 Cal.App.3d 446, 171 Cal.Rptr. 401, 404 (1981)): “

[E]vidence of other sex offenses having distinctive, similar characteristics to those charged is generally admissible on the issue of defendant's identity if such offenses are not too remote in time, are sufficiently similar to the offense charged, and are committed upon persons similar to the prosecuting witness.” (Emphasis supplied.)

[¶ 29] In this case, the victims and the crimes are decidedly different. Becky was a nine-year-old girl. The condition of her body and the presence of semen suggested that she was raped vaginally and anally She was also brutally knifed and sustained several wounds to her hands trying to fend off her attacker. In contrast, two of the other acts victims were adult women, each twenty-one years of age. The third victim was a thirteen-year-old boy. The prior bad acts involved only attempts at sexual contact, with no vaginal or anal penetration. Except for a single cut to Moore's leg and Warner's hand, Moeller did not inflict any physical injuries on these victims. Moeller's demands for sexual gratification were thwarted when the assault victims showed resistance to his threats.

[¶ 30] Moeller's relationship to each of the victims is also very different. At trial, the State presented additional evidence to suggest Moeller was acquainted with Becky. According to one witness for the State, Moeller gave Becky a toy at a neighborhood rummage sale. Moeller sharply disputed any claim that he knew Becky and presented strong evidence indicating he was not present at the yard sale. Even if we accept State's contention that Moeller knew Becky, that does not create a similarity between Becky and the other victims. Moeller was a stranger to Beshaw, a neighbor of Moore's and a social acquaintance of Warner's. There is nothing in these disparate relationships that suggests a “modus operandi.” Even State's brief to this Court seems to acknowledge that there is no identifiable similarity among the victims. The State writes:

What is apparent is that Defendant draws no distinction among his victims other than the opportunity to commit a sexual assault.

[¶ 31] The location of the crimes and Moeller's approach to the victims is also very different. Moeller assaulted Beshaw in her car. According to Beshaw's testimony at trial, he entered her vehicle uninvited and forced her to drive to a secluded area at knife-point. In contrast, Moore's assault occurred in Moeller's home. Rather than immediately threatening Moore with a knife, Moeller invited him into his home and even secured his father's permission for him to stay the night. He used artifice rather than threats to get him to drink large quantities of liquor and to submit to having his hands tied. He only pulled a knife on Moore after the boy refused to engage in sexual relations with him.

[¶ 32] Moeller's assault of Warner took place in her home. He did not immediately threaten her with a knife as with Beshaw nor did he attempt to trick her or intoxicate her as with Moore. Instead, he paid a social visit and, after securing permission to return another time, came back later that evening to commit the assault.

[¶ 33] In Becky's case, State theorized that Becky willingly accepted a ride in Moeller's pickup to avoid the rain.FN3 Yet Moeller's purported offer of a ride does not reflect a method similar to those used in his earlier crimes. Unlike his assault of Beshaw, Moeller's alleged attack against Becky did not involve immediate force. Nor did he secure her parent's permission to visit his home or ply her with alcohol and bets as he did with Moore. Nor did he preface the attack with a social visit, as in Warner's case. It is abundantly clear that no modus operandi emerges from these disparate crimes. FN3. The State premised this claim on the absence of bruises or marks which might suggest Becky was forced into a vehicle.

[¶ 34] The inability to articulate similarities between the other acts and the charged offenses is apparent in State's closing argument to the jury: When you think about these crimes you have to look at the crime scene. Where did these things happen? What are the factors that go into this? What time do these crimes happen? You have to compare the offender's personality, the person that is doing this. Was this crime a product of an opportunity? Impulse? Acting out a fantasy? Or was it planned? How does the offender approach his victim? Con them? Does he jump them? Is it surprise or blitz? You think about, and you're entitled to, on your experiences and what you know about in terms of the daily affairs of life, think about what you know about this type of crime in terms of those categories: A con, surprise or blitz. You see something interesting when you look at Mr. Moeller. Unable to define concrete similarities among the other acts and the charged offenses, State failed to give the jury any clear guidance concerning the relevance of the other acts to legitimate issues in the case. Without more compelling direction from the State, the jury's verdict almost certainly rested on the forbidden inference that because Moeller was involved in other sexual assaults, he likely committed the offenses against Becky. This Court cannot permit a man to be convicted of rape and murder simply because he has committed other crimes in the past.

[¶ 35] Besides failing as proof of identity, the other acts evidence does not establish a “larger continuing plan, scheme or conspiracy of which the present crime charged at trial is only a part.” Champagne, 422 N.W.2d at 842. The trial court's conclusion that each incident was “opportunistic, as opposed to a planned attack” and State's assertion that at least some of the crimes were unplanned, negates any claim that the crimes were part of a common or continuing scheme. Further, as one commentator aptly observed in regard to the plan or scheme exception: “

[S]urrounding circumstances must support an inference that the crimes were related in the defendant's mind,” and both the other acts and the charged crime “must be part of a common or continuing scheme.” It is not enough that other crimes resemble the charged crime. If they are not sufficiently similar to the charged offense or not distinctive enough to be admitted to show modus operandi (hence identity), admitting other crimes to show plan or scheme merely because they bear some resemblance to the charged offense cannot be defended. Particularly when other crimes or acts occurred long before the charged offense, admitting them on the theory that they prove plan often smacks of a thin fiction that merely disguises what is in substance the forbidden general propensity inference, which should not be allowed. 1 Mueller & Kirkpatrick, supra, § 113 at 667–68 (quoting Edward J. Imwinkelried, Uncharged Misconduct § 3:21 (1991)).

[¶ 36] The probative value of the prior bad acts evidence for other purposes, namely to show intent or motive, is also highly questionable. As to the rape charge, forensic evidence indicating anal and vaginal penetration and the presence of semen in nine-year-old Becky's body sufficiently established the assailant's general intent to commit rape. See id., § 108 at 605. These facts also established that the perpetrator was “engaged in the perpetration of ... rape” as required by the felony murder statute. SDCL 22–16–4. The perpetrator's motive, to satisfy a sexual need, is also abundantly clear by proving the rape itself. See 1 Mueller & Kirkpatrick, supra, § 110 at 625.

[¶ 37] As to the charge of premeditated murder, the circumstances surrounding Becky's death, including the brutality of the knife attack and the secluded location of the body, adequately demonstrated a “premeditated design to effect the death of the person killed.” SDCL 22–16–4; State v. Kost, 290 N.W.2d 482, 486 (S.D.1980) (holding design to effect death may be inferred from the circumstances of the killing). Moeller's assaults on Beshaw, Moore, and Warner, where all three victims escaped with few or no physical injuries, provide scant evidence of a premeditated intent to murder. State's assertion that Moeller's motive for murder was to silence his victim can also be readily inferred from the murder itself, and Moeller's prior bad acts provide little additional probative force.

[¶ 38] While the other acts evidence had only meager probative value, its prejudicial effects were substantial. “ ‘Prejudice does not mean the damage to the opponent's case that results from the legitimate probative force of the evidence; rather, it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.’ ” State v. Iron Shell, 336 N.W.2d 372, 375 (S.D.1983) (quoting 22 C. Wright & K. Graham, Federal Practice and Procedure § 5215 at 274–75 (1978)), conviction rev'd on other grounds in habeas corpus proceeding, Iron Shell v. Leapley, 503 N.W.2d 868 (S.D.1993). In this case, the likelihood that the other acts evidence would persuade by illegitimate means was particularly high. State's case against Moeller was a circumstantial one. To link Moeller to the rape and murder of Becky O'Connell, the State relied on evidence showing that: (1) an individual resembling Moeller had been seen approaching or talking to Becky before her disappearance; (2) a pickup truck similar to Moeller's had been seen near the crime scene; (3) soil on Moeller's pickup was consistent with soil samples taken from the crime scene; (4) Moeller had fled to another state when a police composite picture of the alleged assailant, which resembled Moeller, was published in a Sioux Falls newspaper; and (5) DNA samples showed Moeller has the same DQ Alpha type as the perpetrator, and this DQ Alpha type occurs in approximately one out of every thirteen Caucasians.

[¶ 39] The other acts testimony was a shocking and emotionally gripping contrast to State's sterile circumstantial case. Because there were no living witnesses to the rape and murder of Becky, the testimony of Beshaw, Moore, and Warner provided the only depiction of Moeller as a man engaged in sexual and physical aggression. Through their testimony, State transformed Moeller from a man who could have committed the crime, based on circumstantial evidence, to a man who would have committed the crime, based on a propensity for sexual predation and physical violence. Because Moeller had sexually assaulted others, the jury could readily infer that Moeller was the type of man who would rape and murder a child. This is precisely the type of propensity conclusion that is prohibited under SDCL 19–12–5.

C. Conclusion

[¶ 41] In this case, the probative value of the extrinsic evidence to show identity was slight, because the assaults on Beshaw, Moore and Warner were so dissimilar from the rape and murder of Becky O'Connell. Additionally, Moeller's purported intent and motives could be readily inferred from the circumstances surrounding Becky's rape and murder; the other acts testimony provided little, if any, additional insight on these issues. At the same time, given the offensiveness of the other acts and the brutality of the charged crimes, the likelihood of a prejudicial effect on the jury was exceedingly high.

[¶ 42] We conclude the trial court abused its discretion in admitting the other acts testimony; the danger of unfair prejudice so substantially outweighed the probative value of Moeller's prior bad acts that he was denied a fair trial. We therefore reverse his conviction and remand for a new trial. Due to the likelihood that other issues raised by Moeller will resurface on remand of this case, we will proceed to address these issues.

ISSUE 2.

[¶ 43] Did the trial court err in admitting the results of a DNA typing procedure known as polymerase chain reaction (PCR)?

A. Facts

[¶ 45] The State performed a battery of serological tests on vaginal, anal/rectal and oral samples collected from Becky's body. The purpose of these tests was to determine the presence of body fluids that were foreign to Becky. The results showed spermatozoa on the anal/rectal swabs. For purposes of comparison, State also performed serological tests on blood samples drawn from Becky, Moeller, and other suspects. None of these tests involved DNA analysis.

[¶ 46] At a pretrial hearing, three defense experts testified that the serological analyses of the samples revealed polymorphic enzymes and a blood type which did not coincide with Moeller's makeup. State's experts countered that the blood type and enzyme results exactly matched Becky's test results and, therefore, most likely reflected the victim's, rather than the perpetrator's, contribution to the sample. State claimed the serological tests revealed no conclusive or reliable information about the perpetrator and, therefore, Moeller could not be excluded as a suspect on the basis of these tests.

[¶ 47] To supplement the allegedly inconclusive serological findings, State sought admission of DNA test results performed by Edward Blake of Forensic Science Associates. Because the anal/rectal samples that revealed the sperm were too small to be tested using a more common method of DNA analysis known as Restriction Fragment Length Polymorphism (RFLP), Blake used a technique known as Polymerase Chain Reaction (PCR) to duplicate genetic material contained in the samples. Blake tested the resulting larger sample to determine the makeup of a particular segment on the DNA strand, a segment known as the HLA DQ Alpha gene complex. According to Blake, these tests revealed the perpetrator had a DQ Alpha type which was consistent with the DQ Alpha type of Donald Moeller. Blake further opined that population studies show this particular DQ Alpha type (1.2, 3) appears in approximately seven to eight percent of the Caucasian population, i.e. roughly one out of every thirteen Caucasians.

[¶ 48] Finding the admissibility requirements of the Frye test were satisfied, the trial court admitted Blake's testimony concerning the DNA test results and statistical data.FN4 FN4. The Frye test refers to the standard of admissibility for scientific testimony which was established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

[¶ 49] Moeller contends the DNA testing results, derived from the PCR method, are inadmissible for three reasons: (1) PCR DNA typing is not reliable for use with forensic evidence; (2) Edward Blake's qualifications and methods are inadequate; and (3) initial serological tests excluded Moeller as a suspect, so admission of PCR DNA typing was misleading and prejudicial. We disagree.

B. Discussion

[¶ 51] The trial court has broad discretion concerning the admission of expert testimony, and the court's decision will not be reversed absent a clear showing of an abuse of discretion. State v. Hill, 463 N.W.2d 674, 676 (S.D.1990).

[¶ 52] As an initial matter, we must enunciate the appropriate test for admitting expert scientific testimony in a criminal trial. Moeller asserts the Frye standard applies to this case: Under the Frye test, before testimony relating to a scientific principle or discovery is admissible, the principle “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” State v. Wimberly, 467 N.W.2d 499, 505 (S.D.1991) citing State v. Adams, 418 N.W.2d 618, 620 (S.D.1988) (citing Frye, 293 F. 1013). However, in State v. Hofer, 512 N.W.2d 482 (S.D.1994), we adopted the new rule set forth by the United States Supreme Court and held that general acceptance in the scientific community is no longer required. Id. at 484 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, ––––, 113 S.Ct. 2786, 2794, 125 L.Ed.2d 469, 480 (1993)). See also State v. Schweitzer, 533 N.W.2d 156, 159 (S.D.1995). The trial judge must simply determine “that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.” Hofer, 512 N.W.2d at 484 (citing Daubert, 509 U.S. at ––––, 113 S.Ct. at 2799, 125 L.Ed.2d at 485).

[¶ 53] Moeller attacks the DNA testimony of Blake under both the reliability and relevance prongs of the Daubert test. He contends the evidence does not rest on a reliable foundation, because PCR DNA typing is not valid in forensic settings and because Blake lacks sufficient qualifications and methods. Moeller also asserts that the evidence was not relevant, because serological tests had already excluded him as the perpetrator.

[¶ 54] 1. Reliability of PCR DNA typing for forensic use.

[¶ 55] DNA (deoxyribonucleic acid) “is the ‘genetic blueprint’ or ‘code’ which makes each living organism, with the exception of identical twins, unique from all others. DNA is contained within every nucleated cell in the human body.” Kamrin T. MacKnight, The Polymerase Chain Reaction (PCR): The Second Generation of DNA Analysis Methods Takes the Stand, 9 Computer & High Technology Law Journal 287, 290 (1993). Because DNA is unique among individuals, analyzing the DNA contained in skin, hair, blood, semen or saliva found at a crime scene can be helpful in identifying the perpetrator of the crime.

[¶ 56] At present, there are essentially two methods of forensic DNA analysis. William C. Thompson, Evaluating the Admissibility of New Genetic Identification Tests: Lessons from the “DNA War,” 84 J.Crim. L. & Criminology 22, 26 (1993). The most widely used method is called DNA fingerprinting or DNA profiling. Id. It employs a technique known as Restriction Fragment Length Polymorphism (RFLP) analysis. Id. RFLP measures fragments of DNA that are known to show a great deal of variability among individuals. Id. at 26–27. By some accounts, RFLP analysis of these fragments “produces DNA profiles that are virtually unique to each individual, and thus are akin to fingerprints.” Id. at 27. Because RFLP is so discriminating, it is possible to derive phenomenal probability statistics regarding whether a particular person is responsible for the crime under investigation. MacKnight, supra, at 299. For example, in one recent case using RFLP analysis, the frequency of the defendant's DNA profile in the Caucasian population was determined to be one in 300 million. Id. at 299 n. 48 (citing United States v. Jakobetz, 955 F.2d 786, 789 (2nd Cir.1992)). In Wimberly, 467 N.W.2d at 506, this Court held that DNA test results based on RFLP analysis were admissible against a criminal defendant. See also Schweitzer, 533 N.W.2d at 159–60 (holding statistical conclusions pertaining to RFLP test results are admissible).

[¶ 57] One major drawback of RFLP analysis is that it requires a relatively large, nondegraded DNA sample. MacKnight, supra, at 297–98. Unfortunately, many crime scenes, including the one involved in this case, yield only a minute amount of genetic information about the perpetrator. Id. at 297. PCR, the other current method of forensic DNA testing, is designed to overcome this obstacle. PCR is like a “genetic photocopy machine.” Id. at 304. It is a laboratory technique that can increase the amount of testable DNA in a crime sample. Federal Judicial Center, Reference Manual on Scientific Evidence 287 (1994). As one treatise explains: PCR mimics DNA's self-replicating properties to make up to millions of copies of the original DNA sample in only a few hours. Although the term PCR often is used loosely to refer to the entire process of replicating DNA and testing for the presence of matching alleles, the term properly refers only to the replication portion of that process. After amplifying a DNA sample with PCR, technicians must use other methods to determine whether a known and unknown sample match. Standard RFLP analysis can be used in many circumstances, but other techniques often are used, including a process using sequence-specific oligonucleotide (SSO) probes. Currently, one locus, called HLA DQ Alpha, is available for this process.... HLA DQ Alpha ... has been completely sequenced and thus can be used for forensic typing. Reference Manual on Scientific Evidence, supra, at 287–88 and n. 30. Following PCR amplification of the evidence samples, the DQ Alpha types are compared. If the DQ Alpha genotype of the suspect is different from that of the evidence sample, the suspect is “excluded” and cannot be the donor of the evidence.... If the suspect and the evidence have the same genotype, then the suspect is “included” as a possible source of the evidence sample. The probability that another, unrelated individual would also match the evidence is equal to the frequency of that genotype in the relevant population. MacKnight, supra, at 310.

[¶ 58] Unfortunately, PCR DQ Alpha typing is not as discriminating as RFLP testing. MacKnight, supra, at 311–12; MacKnight supra, at 310. There are twenty-one different DQ Alpha types which range in frequency in the population from less than one to fifteen percent. MacKnight, supra, at 311. Consequently, the likelihood of a coincidental match between different samples is far higher with PCR than with DNA profiling tests. Thompson, supra, at 28–29.

[¶ 59] Moeller argues that PCR DQ Alpha typing is unreliable for use on crime scene evidence, because: (1) PCR is an experimental technique which has only been used in forensic settings since the late 1980s; (2) few forensic labs perform the test; (3) labs conducting PCR analysis are not subject to professional licensing, accreditation, or governmental regulation; and (4) PCR is susceptible to errors caused by inadvertent contamination of samples or uneven amplification of DNA.

[¶ 60] Undeniably, the use of PCR for forensic purposes has been the subject of controversy and debate in both scientific and legal contexts. National Research Council, DNA Technology in Forensic Science ix (National Academy Press 1992). Nevertheless, our review of the trial record, relevant case law, and scientific literature convinces us that PCR DQ Alpha typing is a reliable method of forensic identification.

[¶ 61] The fact that PCR DNA testing is a recent development, practiced by relatively few labs, does not necessarily impugn its scientific validity. As one court observed: The PCR method was, and is, being used in an increasing number of forensic situations. The absence of widespread forensic use of the PCR method is not determinative of the admissibility of DNA evidence produced by the method. State v. Lyons, 124 Or.App. 598, 863 P.2d 1303, 1309–10 (1993) (citing State v. Brown, 297 Or. 404, 687 P.2d 751 (1984)), review granted, 319 Or. 406, 879 P.2d 1284 (1994). Furthermore, as of March 1991, over thirty forensic labs were performing DQ Alpha typing. MacKnight, supra, at 319. One commentator noted that concerns unrelated to the reliability of the technique, namely financial constraints, personnel shortages, inadequate space and equipment, and insufficient demand, prevent other forensic labs from using the technology. Id. at 319 n. 150.

[¶ 62] Contrary to Moeller's claims, the relative newness of the technique has not prevented serious scientific scrutiny. Evidence presented at trial indicated that literally thousands of scientific articles have been written about PCR amplification and the DQ alpha gene complex. The Federal Bureau of Investigation (FBI) has conducted validation studies indicating that PCR DQ Alpha typing is a valid procedure for forensic use. Catherine Theisen Comey et al., PCR Amplification and Typing of the HLA DQ Alpha Gene in Forensic Samples, 38 J. of Forensic Sciences 239, 248 (March 1993); Catherine Theisen Comey & Bruce Budowle, Validation Studies on the Analysis of the HLA DQ Alpha Locus Using the Polymerase Chain Reaction, 36 J. of Forensic Sciences 1633, 1646–47 (Nov 1991). Indeed, in 1992, the FBI adopted PCR DQ Alpha testing for forensic use. State v. Russell, 125 Wash.2d 24, 882 P.2d 747, 765 (1994) (citing AmpliType HLA DQ–Alpha Forensic DNA Typing Customer Survey (1992)), cert. denied, Russell v. Washington, 514 U.S. 1129, 115 S.Ct. 2004, 131 L.Ed.2d 1005 (1995).

[¶ 63] Likewise, courts in many other jurisdictions have concluded that PCR DNA typing is scientifically reliable and therefore admissible in criminal cases. Seritt v. State, 647 So.2d 1, 4 (Ala.Crim.App.1994); State v. Hill, 257 Kan. 774, 895 P.2d 1238, 1247 (1995); State v. Grayson, No. K2–94–1298, 1994 WL 670312, at *1 (Minn.Dist.Ct.1994); State v. Hoff, 904 S.W.2d 56, 59 (Mo.Ct.App.1995); State v. Moore, 268 Mont. 20, 885 P.2d 457, 474–75 (1994), overruled on other grounds, State v. Gollehon, 906 P.2d 697 (Mont.1995); State v. Williams, 252 N.J.Super. 369, 599 A.2d 960, 968 (Law Div.1991); People v. Palumbo, 162 Misc.2d 650, 618 N.Y.S.2d 197, 201 (N.Y.Sup.Ct.1994); Lyons, 863 P.2d at 1311; Campbell v. State, 910 S.W.2d 475, 479 (Tex.Crim.App.1995), cert. denied, 517 U.S. 1140, 116 S.Ct. 1430, 134 L.Ed.2d 552 (1996); Clarke v. State, 813 S.W.2d 654, 655 (Tex.Ct.App.1991), aff'd, 839 S.W.2d 92 (Tex.Crim.App.1992), cert. denied, Clarke v. Texas, 507 U.S. 996, 113 S.Ct. 1611, 123 L.Ed.2d 172 (1993); Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609, 621 (1990), cert. denied, 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235 (1990); Russell, 882 P.2d at 768.

[¶ 64] In attacking the reliability of PCR DQ Alpha testing, Moeller primarily relies on a report issued by the National Research Council (hereinafter NRC Report) entitled DNA Technology in Forensic Science (National Academy Press 1992). The report was prepared by a committee of scientists and jurists to address concerns associated with forensic DNA typing. NRC Report at ix. The report acknowledges questions about the reliability of PCR-based methods, including potential contamination of samples, uneven amplification of DNA, and misuse of PCR kits and equipment. NRC Report at 2–20 and 2–21. However, it does not translate to the broad condemnation urged by Moeller. Instead, we read the report as simply focusing on the importance of quality controls to ensure reliable testing. It recommends blind proficiency testing, individual certification, laboratory accreditation, and state or federal regulation to achieve that end. NRC Report at 4–13 to 4–15. As one court observed, the report's emphasis on quality control measures does not undermine the admissibility of PCR DNA typing: While accreditation and regulation may be desirable in the medical as well as the forensic setting, it is not necessary to bar the use of DNA technology until such safeguards are in place. “Although the court is not the ideal forum for ensuring quality science, the adversary process is a means by which those who practice ‘bad’ science may be discredited, while those who practice ‘good’ science may enjoy the credibility they deserve.” Russell, 882 P.2d at 766 (quoting MacKnight, supra, at 341).

[¶ 65] Moeller raises the possibility of contamination of PCR DNA samples as one ground for ruling PCR test results inadmissible. Crime scene evidence may contain a number of contaminants, including DNA from the victim and others present at the crime scene or from laboratory workers handling the sample. Moeller suggests that forensic PCR tests may reveal only genetic information from the contaminating source, thereby masking the DNA composition of the true perpetrator. Our review of scientific literature and the trial record indicates that the risk of contamination is not so great as to bar admissibility of PCR DNA results. To test the risk of contamination, FBI researchers conducted PCR analysis after deliberately exposing samples to environmental insults. Comey & Budowle, supra, at 1638–39. Potential contaminants were introduced by combining samples, mixing blood samples with perspiration, exposing samples to coughing, dandruff, and unclean laboratory equipment, and testing blood samples that were already mixed with other substances, such as saliva. Id. After performing PCR DQ Alpha analysis on the exposed samples, the researchers made the following conclusions: The DQ Alpha amplification and typing system was shown to be relatively unaffected by various environmental insults to bloodstains. Chemical and microbial contaminants that may be encountered in connection with evidentiary stains do not prevent obtaining interpretable typing results. .... .... In conclusion, PCR amplification of DNA from samples exposed to a variety of insults yields correct DQ Alpha typing results. The DQ Alpha alleles present in a sample at the level of sensitivity of the test were reliably detected, and no false results were produced as long as the test was carried out under conditions that prevented allele dropout. The typing system appears relatively resistant to a variety of environmental insults, and factors that do influence the test serve to give no results rather than false results. Id. at 1646–47.

[¶ 66] In another validation study, FBI researchers compared the accuracy of forensic PCR testing to RFLP analysis. They concluded as follows: This study provides additional support that the HLA DQ Alpha typing procedure is a valid procedure for typing forensic samples. All interpretations for cases were compatible with interpretations using the RFLP procedure. .... The HLA DQ Alpha typing system has been shown to be a valid and reliable approach for analysis of biological evidence. It is anticipated that the increased sensitivity of the DQ Alpha test will provide results in some situations in which there is insufficient DNA for RFLP analysis. Catherine Theisen Comey et al., supra, at 248. See also U.S. Congress, Office of Technology Assessment, Genetic Witness: Forensic Uses of DNA Tests 7–8 (1990) (“The Office of Technology Assessment (OTA) finds that forensic uses of DNA tests are both reliable and valid when properly performed and analyzed by skilled personnel.”).

[¶ 67] In addition to these validation studies, the trial record indicates that Blake took great pains to ensure reliable testing procedures were followed in his laboratory. To prevent contamination of laboratory samples, Blake confined all handling of PCR material to one physical location in the lab and processed reference samples at different times than evidentiary samples. He used “blank” samples during PCR processing and typing to determine if chemicals added to the evidentiary samples were contaminated with DNA from other sources. Blake also reserved at least one-half of all evidentiary samples for possible retesting by his lab, defense experts, or referees.

[¶ 68] Moeller notes that preferential or differential amplification of certain portions of the DNA sample is also a concern with the PCR method. As Moeller suggests, uneven amplification could lead to inaccurate conclusions about the DNA makeup of the assailant. However, research suggests that proper use, calibration, and maintenance of equipment can prevent this problem. MacKnight, supra, at 314–15. Further, the trial record indicates that Blake employed various precautions to ensure accurate amplification of samples. For example, Blake used control samples that had been previously typed to ensure that testing methods were capable of responding to all DQ Alpha types. Because uneven amplification of DNA is associated with inadequate heating of samples, Blake also monitored the temperatures maintained by the amplification equipment to ensure proper heating during the PCR process.

[¶ 69] Having reviewed the trial record, relevant case law, and scientific literature, we conclude that PCR DQ Alpha typing is sufficiently reliable for admission in criminal trials. In making this ruling, we note the benefit of PCR testing extends equally to the defense as well as the prosecution. Because test results can exclude a person on trial from being the perpetrator of the crime, PCR DNA evidence can be a valuable source of exculpatory evidence.

2. Methods and qualifications of Edward Blake.

[¶ 71] Moeller questions Blake's qualifications to testify regarding PCR DNA typing, noting that: (1) Blake possesses only a bachelor of science degree in criminalistics and a doctorate degree in criminology and lacks any advanced degree in molecular biology, genetics, analytical chemistry, and biochemistry; (2) Blake and his laboratory are not licensed or accredited; and (3) Blake deviates from the protocols established by the manufacturer of the PCR kit by subjecting samples to three additional amplification cycles.

[¶ 72] We have held “the qualification and competency of a witness to speak as an expert is primarily in the discretion of the trial court, and its ruling will be disturbed only in the case of a clear abuse of discretion.” State v. Swallow, 405 N.W.2d 29, 42 (S.D.1987) (citing State v. Disbrow, 266 N.W.2d 246, 251–52 (S.D.1978)). None of Moeller's observations show an abuse of discretion by the trial court in permitting Blake to testify. Rather, evidence indicated Blake has the requisite knowledge and experience to qualify as an expert. The record shows that, when studying for his doctorate in criminology, Blake specialized in forensic science. His doctoral thesis was entitled, “Determination of Genetic Markers in Human Semen.” Since 1978, Blake has worked as a forensic serologist in private practice. Most of his work involves DNA analysis. He has co-authored more than twenty scientific papers, including articles concerning PCR technology and DNA analysis. He has also given over fifty presentations on various aspects of forensic serology. Blake has worked on over three hundred cases involving PCR DQ Alpha typing. Blake and his laboratory are not accredited or licensed because no such accreditation or licensing mechanisms exist. However, his laboratory participates in voluntary proficiency testing. Further, although Blake deviates from the manufacturer's protocol by subjecting samples to three additional replication cycles, he testified that these additional cycles simply increase the sensitivity of the sample. Finally, we note that other courts have deemed Blake to be an expert on PCR DNA typing. See Hill, 895 P.2d at 1246 (concluding that “Blake has impressive credentials and would appear to be one of the leaders in his field”); Williams, 599 A.2d at 967 (noting that qualified scientists found Blake's PCR DNA testing method to be highly reliable).

[¶ 73] The record demonstrates that Blake, through his education and practical experience, was qualified to testify as an expert on PCR DNA typing at trial. His alleged professional and technical deficiencies go to the weight and credibility of his testimony rather than admissibility. See Swallow, 405 N.W.2d at 42.

3. Relevance of DNA results.

[¶ 75] Moeller asserts that the PCR DNA typing evidence was irrelevant, because he had already been excluded as a suspect on the basis of serological test results. At a pretrial hearing, Moeller presented three expert witnesses who testified that tests on semen and saliva found on Becky's body did not “match” Moeller's blood type or enzyme makeup. State presented expert testimony disputing Moeller's claim of exclusion. State's experts opined that the serological tests reflected Becky's blood type and enzymes and therefore provided little, if any, information which could identify the perpetrator. State witnesses further opined that PCR DNA typing could differentiate between contributions from the perpetrator and the victim and thereby provide more information about the assailant. Faced with conflicting expert testimony and allegations that the serological tests were inconclusive, the trial court did not abuse its discretion in admitting evidence concerning the DNA makeup of the perpetrator.

4. Conclusion.

[¶ 77] We conclude the court properly admitted evidence of PCR amplification and DQ Alpha testing. Based on the trial record, relevant case law, and scientific literature, we hold PCR analysis for forensic purposes is reliable, the testimony with respect to the technique and its application was offered by a qualified expert who used adequate scientific procedures, and the evidence was relevant to the material issue of the identity of the perpetrator.

ISSUE 3.

[¶ 78] Did the trial court abuse its discretion in allowing the testimony of a soil expert, because he testified to a mere possibility?

A. Facts

[¶ 80] Prior to trial, Moeller submitted a motion to exclude the testimony of John P. Wehrenberg, a retired professor of geology who specializes in forensic examinations of soils. Moeller contended Wehrenberg's testimony was highly speculative and therefore had no probative value. The trial court denied the motion and Moeller entered a standing objection to the testimony at trial.

[¶ 81] Wehrenberg testified in State's case-in-chief. He stated he had examined soil samples taken from the wheel wells of a pickup belonging to Moeller. He had also studied several unpaved roads located near Sioux Falls, South Dakota, including the road leading into the area where Becky's body was found. In an on-site examination of this road located south of Sioux Falls, he noted the colors and general characteristics of the soil on parts of this road were quite similar to soil samples taken from the left side of Moeller's pickup. Wehrenberg compared these samples to soil found on two other roads where Moeller claimed to have been driving. One road that lies across the river from the crime scene showed gravel and soils that were considerably lighter than any of the soils examined at the crime scene. Similarly, an examination of a gravel road north of Sioux Falls revealed gravel and soils that were much lighter than were present in the crime scene area. Wehrenberg opined that the soil on the left side of Moeller's pickup could not have come from the road he examined north of Sioux Falls. Wehrenberg also stated there was a low probability that the soils found on Moeller's pickup came from the road located across the river from the crime scene.

[¶ 82] In contrast, Wehrenberg opined that soils found on the left wheel wells of Moeller's vehicle were very similar to and consistent with soils taken from the crime scene. Further, Wehrenberg stated that samples from the left wheel wells of Moeller's pickup contained very sharp, clean hornblende crystals. Wehrenberg testified that the mud in the wheel wells would “probably have a greater chance of being found to the south

[of Sioux Falls]” due to the presence of hornblende.

[¶ 83] Wehrenberg concluded that the road leading into the crime scene could not be excluded as the source of the soil found on the left wheel wells of Moeller's pickup. On cross-examination, Wehrenberg testified in part as follows: Q. And basically your ultimate conclusion is that it is possible that soil in the left wheel well

[of Moeller's vehicle] came from the crime scene? A. That is correct. Q. And it's also possible that it came from another scene; isn't that correct? A. That is correct. Q. And it, and without a database you don't know how many other scenes there would be which would have this similar-type composition? A. That's correct. Q. And it could be, the range could be rather significant, couldn't it? A. Yes, it could. Q. And you can't say to any kind of scientific certainty that the soil in the wheel well and the soil at the crime scene are from the same source, would that be correct? A. That's correct. Q. All you're telling us is that as far as that wheel well it's possible? A. Yes. Q. And it's also, as you indicated, possible that it could be from any number of other sources? A. That's correct.

B. Discussion

[¶ 86] Moeller asserts that Wehrenberg's testimony is limited to possibilities rather than probabilities and lacks any scientific conclusion. He therefore asserts the testimony did not assist the trier of fact and unfairly prejudiced Moeller. State responds that Moeller's assertions go to the weight of Wehrenberg's testimony, not admissibility. State notes that Wehrenberg found numerous consistencies between crime scene soil and the mud on Moeller's pickup and excluded locations Moeller identified as probable sources of the mud.

[¶ 87] The admissibility of an expert's opinion is within the broad discretion of the trial court. Peery v. South Dakota Department of Agriculture, 402 N.W.2d 695, 696 (S.D.1987); State v. Iron Shell, 301 N.W.2d 669, 672 (S.D.1981). We will reverse the trial court's decision only where there has been a clear showing of an abuse of discretion. Id.; Hill, 463 N.W.2d at 676 (citing State v. Logue, 372 N.W.2d 151 (S.D.1985)).

[¶ 88] SDCL 19–15–2 addresses the admissibility of expert testimony. This statute requires that such testimony “assist the trier of fact to understand the evidence or to determine a fact in issue.” SDCL 19–15–2. “Any fact that tends to connect an accused with the commission of a crime is relevant and has probative value.” State v. Johnson, 316 N.W.2d 652, 654 (S.D.1982) (citing State v. O'Connor, 84 S.D. 415, 420, 172 N.W.2d 724, 727 (1969)). In this case, Wehrenberg's testimony indicated that soil found on Moeller's pickup was consistent with the crime scene. This testimony formed part of State's circumstantial case and tended to connect Moeller with the commission of the crime. Assertions that others may have been driving the pickup when the soil was deposited on it, or that Wehrenberg could not estimate the number of other locations where the soil could have been found, go to the weight of the testimony rather than its relevance.

[¶ 89] As one treatise explains: Under our system, molded by the tradition of jury trial and predominantly oral proof, a party offers his evidence not en masse, but item by item. An item of evidence, being but a single link in the chain of proof, need not prove conclusively the proposition for which it is offered. It need not ever make that proposition appear more probable than not. Whether the entire body of one party's evidence is sufficient to go to the jury is one question. Whether a particular item of evidence is relevant to his case is quite another. It is enough if the item could reasonably show that a fact is slightly more probable than it would appear without that evidence. Even after the probative force of the evidence is spent, the proposition for which it is offered still can seem quite improbable. Thus, the common objection that the inference for which the fact is offered “does not necessarily follow” is untenable. It poses a standard of conclusiveness that very few single items of circumstantial evidence ever could meet. A brick is not a wall. McCormick on Evidence, supra, § 185 at 776.

[¶ 90] Furthermore, SDCL 19–15–2 does not require that expert testimony be given in the form of scientific probabilities. In drafting an identical Federal Rule, the advisory committee observed: Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts. FedREvid 702 advisory committee's note.

[¶ 91] Although relevant, expert testimony may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. SDCL 19–12–3. “

[T]he term ‘prejudice’ does not mean damage to the opponent's case that results from the legitimate probative force of the evidence; rather it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.” Kaarup v. Schmitz, Kalda & Assocs., 436 N.W.2d 845, 850 (S.D.1989) (citing State v. Dokken, 385 N.W.2d 493 (S.D.1986)).

[¶ 92] After reviewing the record, we cannot conclude that Wehrenberg's testimony was unduly prejudicial. Moeller's counsel artfully demonstrated the weaknesses and limitations of Wehrenberg's testimony, and Wehrenberg himself was quite candid in this regard. Furthermore, the subject matter of his testimony was not beyond the reach of the jury's critical faculties and common sense. Unfair prejudice is associated with “facts that arouse the jury's hostility or sympathy for one side without regard to the probative value of the evidence.” McCormick on Evidence, supra, § 185 at 780. It is highly unlikely that testimony concerning soil composition appealed to the jury's emotions or otherwise clouded their ability to weigh the probative value of the evidence. Consequently, we hold that the trial court did not abuse its discretion in permitting Wehrenberg to testify.

ISSUE 4.

[¶ 93] Does a trial court's failure to instruct the jury as to the definition of “reasonable doubt” at a sentencing hearing require reversal and vacation of the jury's verdict of death?

[12]

[¶ 94] Before a sentence of death can be imposed under South Dakota's capital punishment sentencing scheme, the jury must determine the existence of an aggravating factor beyond a reasonable doubt. SDCL 23A–27A–5. In this case, the trial judge did instruct the jury that they must find the existence of an aggravating circumstance beyond a reasonable doubt before returning a verdict of death. However, the trial court did not define “reasonable doubt” at the penalty phase of the proceedings.FN5 FN5. We note that the jury received a proper definition of reasonable doubt at the guilt phase of their deliberations. However, this fact does not diminish the importance of repeating the instruction prior to penalty deliberations that occur several days later.

[¶ 95] Although we dispose of this case on other grounds, we take this opportunity to stress the importance of defining the prosecution's burden of proof in a capital sentencing proceeding. In the future, failure to instruct the jury on this issue could result in reversible error.

ISSUE 5.

[¶ 96] Is the death penalty “cruel punishment” per se in violation of South Dakota Constitution Article VI, § 23?

[¶ 97] The Eighth Amendment to the United States Constitution forbids “cruel and unusual punishments.” The United States Supreme Court has held that the penalty of death is not per se unconstitutional as a cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859, 882–83 (1976).

[¶ 98] The South Dakota Constitution employs slightly different language in limiting the government's power to impose criminal penalties. Article VI, § 23, of the South Dakota Constitution states: “Excessive bail shall not be required, excessive fines imposed, nor cruel punishments inflicted.” (Emphasis supplied.) Moeller argues that South Dakota's constitutional prohibition on “cruel punishments” is a greater restriction on government power than its federal counterpart prohibiting “cruel and unusual punishments.” He contends that the death penalty is invariably a “cruel punishment” in violation of this state's constitutional provision.

[¶ 99] We note that a state constitution may be interpreted to provide an individual with greater protection than the federal constitution. State v. Opperman, 247 N.W.2d 673, 674 (S.D.1976). Additionally, “capital punishment is a matter of particular state interest or local concern and does not require a uniform national policy.” State v. Ramseur, 106 N.J. 123, 524 A.2d 188, 209 (1987). See also James R. Acker & Elizabeth R. Walsh, Challenging the Death Penalty Under State Constitutions, 42 Vanderbilt LRev 1299 (1989).

[¶ 100] Cognizant of this Court's independent authority to invalidate capital punishment as a matter of state law, we begin our analysis by focusing on our own state's legal and historical precedent. Importantly, the very same constitutional document that prohibits the infliction of cruel punishment contains provisions implicitly recognizing the appropriateness of the death penalty. S.D. Const.Art. VI, § 8, states in part: “All persons shall be bailable by sufficient sureties, except for capital offenses when proof is evident or presumption great.” (Emphasis supplied.) Article VI, § 2, provides in pertinent part: “No person shall be deprived of life ... without due process of law.”

[¶ 101] In addition to constitutional recognition, capital punishment has received legislative approval. The death penalty has been in effect for most of this state's history. Capital punishment existed from statehood until it was abolished in 1915. Opinion of the Judges, 83 S.D. 477, 479, 161 N.W.2d 706, 708 (1968). It was reinstated in 1939 and continued until 1972, when the United States Supreme Court effectively invalidated the then-existing capital sentencing scheme. Reed C. Richards & Stephen C. Hoffman, Death Among the Shifting Standards: Capital Punishment After Furman, 26 SDLRev 243 (Spring 1981). The legislature reenacted the death penalty in 1979, and it has remained in effect to the present. Richards & Hoffman, supra, at 243; 1979 S.D.Sess.L. ch. 160; 1981 S.D.Sess.L. ch. 186. Eleven individuals have been executed in South Dakota. Richards & Hoffman, supra, at 243.

[¶ 102] Historical and legislative acceptance of the death penalty is significant, but not dispositive. See State v. Black, 815 S.W.2d 166, 188 (Tenn.1991). Constitutional analysis is dynamic and evolving; it cannot rest solely on historical underpinnings. We therefore adopt a three-part analytical framework derived from the United States Supreme Court's plurality decision in Gregg. To survive constitutional scrutiny, the death penalty: (1) must comport with contemporary standards of decency; (2) must not be excessive in light of the crime committed; and (3) must serve a legitimate penological objective. Gregg, 428 U.S. at 173–83, 96 S.Ct. at 2924–30, 49 L.Ed.2d at 874–80.

[¶ 103] We conclude that capital punishment meets all three of these requirements. To begin with, the death penalty comports with South Dakotans' contemporary standards of decency. Because the legislative branch is most representative of the views of the people, legislative enactments are one of the most accurate indicators of societal mores. Gregg, 428 U.S. at 179–81, 96 S.Ct. at 2928–29, 49 L.Ed.2d at 878–79; Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 968 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); Black, 815 S.W.2d at 189; State v. Campbell, 103 Wash.2d 1, 691 P.2d 929, 948 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985). The South Dakota Legislature reenacted the death penalty in 1979, and has made occasional amendments to the statutory scheme since that time. 1979 S.D.Sess.L. ch. 160; 1981 S.D.Sess.L. ch. 186; 1989 S.D.Sess.L. ch. 206; 1992 S.D.Sess.L. ch. 173; 1994 S.D.Sess.L. ch. 178; 1995 S.D.Sess.L. ch. 132. These statutes have remained undisturbed by the electorate, despite the power of the people to vote death penalty proponents out of office or to reject legislative enactments through a referendum election. This public acquiescence is strong evidence that capital punishment reflects the will of the people of South Dakota.

[¶ 104] The jury is also a reliable, objective index of societal standards. Gregg, 428 U.S. at 181, 96 S.Ct. at 2929, 49 L.Ed.2d at 879. Since the reenactment of the death penalty in 1979, eight capital cases have been submitted to juries for sentencing. In two of these cases, South Dakota juries have recommended death sentences. In our sparsely populated rural state, with its relatively small number of capital crimes, these two verdicts are significant. Furthermore, “the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases.” Gregg, 428 U.S. at 182, 96 S.Ct. at 2929, 49 L.Ed.2d at 879–80 (citing Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Burger, C.J., dissenting)). FN6. In evaluating contemporary values, we are also mindful of the fact that thirty-seven other states have adopted statutes authorizing capital punishment for certain crimes. See Campbell, 691 P.2d at 947. In the four other states which include a simple prohibition against “cruel punishment” in their constitutions, the death penalty has survived state constitutional challenges. State v. Dickerson, 298 A.2d 761, 768 (Del.Supr.Ct.1972); Gall v. Commonwealth, 607 S.W.2d 97, 113 (Ky.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 824 (1981); Zettlemoyer, 454 A.2d at 969; Campbell, 691 P.2d at 948.

[¶ 105] Having determined the death penalty is consistent with contemporary values in South Dakota, we also conclude that the sentence of death is not an excessive penalty for the crime of first-degree murder. FN7. Under South Dakota law, kidnapping may be punishable by death when the defendant has inflicted gross permanent physical injury on the victim. SDCL 22–19–1; SDCL 22–6–1. Moeller was not charged with kidnapping Becky. He was convicted of murder in the first degree and was sentenced to death for this crime. Therefore, we limit our discussion to the appropriateness of the death penalty for the offense of first-degree murder. Measuring the punishment, death, against the crime, causing death, it is most difficult to appreciate the death penalty's excessiveness....

[A]lthough the death penalty is severe and irrevocable, it is not an excessive or disproportionate penalty for the crime of murder. Ramseur, 524 A.2d at 213. Imposing a sentence of death for deliberately taking the life of another “is an extreme sanction, suitable to the most extreme of crimes.” Gregg, 428 U.S. at 187, 96 S.Ct. at 2932, 49 L.Ed.2d at 882.

[¶ 106] Finally, the death penalty serves two important penological purposes. First, it satisfies society's need to impose a fitting punishment for grievous crimes. As the Gregg plurality observed: In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy—of self-help, vigilante justice, and lynch law. Retribution is no longer the dominant objective of the criminal law, but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men. Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death. Gregg, 428 U.S. at 183–84, 96 S.Ct. at 2930, 49 L.Ed.2d at 880–81 (citations and quotations omitted).

[¶ 107] Second, we accept the State's assertion that the death penalty deters prospective capital offenders. Although the efficacy of capital punishment as a deterrent of crime is hotly debated, this question must be addressed by the legislature, not the courts. As the Gregg plurality opined: The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. Gregg, 428 U.S. at 186, 96 S.Ct. at 2931, 49 L.Ed.2d at 882 (citation omitted).

[¶ 108] Justice Byron White has similarly defended the legislature's ability to assess the deterrent value of capital punishment: It will not do to denigrate these legislative judgments as some form of vestigial savagery or as purely retributive in motivation; for they are solemn judgments, reasonably based, that imposition of the death penalty will save the lives of innocent persons. This concern for life and human values and the sincere efforts of the States to pursue them are matters of the greatest moment with which the judiciary should be most reluctant to interfere. Roberts v. Louisiana, 428 U.S. 325, 355, 96 S.Ct. 3001, 3016, 49 L.Ed.2d 974, 994 (1976). We cannot conclude that the South Dakota Constitution requires such interference.

[¶ 109] In light of the above, we hold that the death penalty is not invariably cruel punishment in violation of the state constitution.

ISSUE 6.

[¶ 110] Is SDCL 23A–27A–1(6) unconstitutionally vague and overly broad when it states an aggravating factor for imposing the death penalty is whether the “offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim?”

[¶ 111] As we explained in State v. Rhines, 1996 SD 55 ¶¶ 138–40, 548 N.W.2d 415: The Eighth and Fourteenth Amendments to the United States Constitution prohibit state sentencing systems that cause the death penalty to be wantonly and freakishly imposed. Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3099, 111 L.Ed.2d 606, 618 (1990).

[I]f a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates standardless sentencing discretion. It must channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance, and that make rationally reviewable the process for imposing a sentence of death. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764–65, 64 L.Ed.2d 398, 406 (1980) (Stewart, J., plurality opinion) (citations and quotations omitted). “A State's definitions of its aggravating circumstances—those circumstances that make a criminal defendant ‘eligible’ for the death penalty—therefore play a significant role in channeling the sentencer's discretion.” Lewis, 497 U.S. at 774, 110 S.Ct. at 3099, 111 L.Ed.2d at 619. To satisfy constitutional mandates, an aggravating circumstance must meet two basic requirements. First, it “must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235, 249–50 (1983). Second, “the aggravating circumstance may not be unconstitutionally vague.” Tuilaepa v. California, 512 U.S. 967, ––––, 114 S.Ct. 2630, 2635, 129 L.Ed.2d 750, 759 (1994). A challenged provision is impermissibly vague when it fails to adequately inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with open-ended discretion. Maynard v. Cartwright, 486 U.S. 356, 361–62, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372, 380 (1988). ...

[U]nder the South Dakota sentencing statutes, the jury may not recommend a sentence of death unless it finds at least one aggravating circumstance beyond a reasonable doubt. South Dakota includes the following aggravating circumstance in its statutory scheme: The offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. SDCL 23A–27A–1(6).FN8

FN8. In 1995, the legislature added the following sentence to SDCL 23A–27A–1(6): “Any murder is wantonly vile, horrible, and inhuman if the victim is less than thirteen years of age.” 1995 SDSessL ch 132. Because Moeller's alleged offenses occurred prior to the enactment of this amendment, we may not consider this statutory change when reviewing his case. See S.D.Const. Art. VI, § 12.

[¶ 112] State alleged this circumstance in urging the jury to impose the death sentence on Moeller. As to the meaning of this statutory provision, the trial court instructed the jury as follows: The term “aggravated battery” as used in these instructions, is defined as the infliction of serious physical abuse upon the victim, by depriving him of a member of his body, or by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof. The State has alleged as an aggravating circumstance in this case that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved an aggravated battery to the victim. The State has the burden to prove, beyond a reasonable doubt, the existence of this aggravating circumstance. Before you may find that this aggravating circumstance exists in this case, you must find, beyond a reasonable doubt, that each of the following elements of this aggravating circumstance are proven by the evidence: (1) That the victim suffered an aggravated battery to his person, inflicted by the defendant. (2) That the defendant, at the time that he inflicted the aggravated battery upon the victim, had the specific intention, design or purpose of maliciously inflicting unnecessary pain to the victim. Unless the jury finds that each of the above two elements has been proven by the evidence, beyond a reasonable doubt, then you must give the defendant the benefit of the doubt and find that this aggravating circumstance does not exist. FN9. The trial court also provided a definition of “torture” and “depravity of mind” for the jury. However, we read the jury instructions as alleging only an “aggravated battery” and therefore confine our review to the definition of that term. The jury found the aggravating circumstance was satisfied and sentenced Moeller to death.

[¶ 113] Moeller contends the aggravating circumstance at SDCL 23A–27A–1(6) and the narrowing instructions given by the trial court are unconstitutionally vague and overbroad and, therefore, violate his rights under the “cruel and unusual punishment” and “due process” clauses of the United States and South Dakota Constitutions.FN10 State counters that the trial court's instructions to the jury cured any constitutional infirmity in the statute by narrowly defining “aggravated battery.”FN11

FN10. Although Moeller urges state as well as federal constitutional violations, see S.D.Const.Art. VI, §§ 2, 18, and 23, we conclude that the effect of both the federal and state constitutions in this regard is identical. FN11. Moeller argues that a vague and overbroad aggravating circumstance must be amended through legislative action rather than limited through judicial construction. He contends that limiting instructions crafted by a trial or appellate court invade the legislature's power to define capital offenses.

We reject this claim. The United States Supreme Court has expressly approved judicial decisions that impose limiting instructions on otherwise vague aggravating circumstances. Arave v. Creech, 507 U.S. 463, 471, 113 S.Ct. 1534, 1541, 123 L.Ed.2d 188, 198 (1993); Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511, 528–29 (1990); Proffitt v. Florida, 428 U.S. 242, 255–57, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 913, 924–25 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Gregg, 428 U.S. at 201, 96 S.Ct. at 2938, 49 L.Ed.2d at 890 (opinion of Stewart, Powell, and Stevens, JJ.). We are convinced by the weight of this authority.

[¶ 114] We have previously written: There is little doubt that the language of SDCL 23A–27A–1(6), by itself, is vague and overbroad. In Godfrey, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398, the Court considered a provision identical to South Dakota's “outrageously or wantonly, vile, horrible or inhuman” circumstance. The trial court in Godfrey simply quoted the aggravating circumstance in its instructions to the jury and provided no additional definitions or explanations concerning this aggravating factor. 446 U.S. at 426, 100 S.Ct. at 1764, 64 L.Ed.2d at 405. The jury found beyond a reasonable doubt that the two murders committed by the defendant were “outrageously or wantonly vile, horrible and inhuman” and imposed the penalty of death. Id. The Georgia Supreme Court affirmed the sentence, without applying any limiting construction to the aggravating circumstance. 446 U.S. at 432, 100 S.Ct. at 1767, 64 L.Ed.2d at 408–09. On appeal, the United States Supreme Court invalidated the death sentence. 446 U.S. at 433, 100 S.Ct. at 1767, 64 L.Ed.2d at 409. Justice Stewart, writing for the plurality, condemned the trial court's bare reiteration of the statutory aggravating circumstance in its charge to the jury. 446 U.S. at 428–29, 100 S.Ct. at 1765, 64 L.Ed.2d at 406–07. He reasoned that the statutory provision, by itself, failed to give the jury adequate guidance in imposing the death penalty and therefore created the likelihood of an arbitrary and capricious result. 446 U.S. at 428–29, 100 S.Ct. at 1765, 64 L.Ed.2d at 406–07; see also Maynard, 486 U.S. at 363–64, 108 S.Ct. at 1859, 100 L.Ed.2d at 382 (invalidating “especially heinous, atrocious, or cruel” aggravating factor where no additional limiting construction was given); Espinosa v. Florida, 505 U.S. 1079, 1080, 112 S.Ct. 2926, 2927–28, 120 L.Ed.2d 854, 858–59 (1992) (stating simple charge to jury that murder was “especially wicked, evil, atrocious or cruel” did not satisfy constitutional requirements). Finding the statutory language is vague and overbroad, as the Godfrey Court did, does not necessarily establish a constitutional violation. Walton, 497 U.S. at 653–54, 110 S.Ct. at 3057, 111 L.Ed.2d at 528. If a state court further defines and limits those otherwise vague and overbroad terms so as to provide adequate guidance to the sentencer, then constitutional requirements are satisfied. Id. Rhines, 1996 SD 55, ¶¶ 144–45, 548 N.W.2d 415.

[¶ 115] We hold that the trial court's instructions meet the mandates of the state and federal constitutions. To begin with, the court's instructions narrow the class of persons eligible for the death penalty. The jury was advised that it could only impose a death sentence if the victim suffered an aggravated battery. The court defined an aggravated battery as “the infliction of serious physical abuse upon the victim, by depriving him of a member of his body, or by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof.” By requiring “serious physical abuse,” this instruction eliminates defendants who kill without inflicting physical blows. For example, the defendant who administers an overdose of medication to his victim, or poisons his victim with carbon monoxide gas, does not satisfy the “serious physical abuse” requirement. Furthermore, the court required a finding that the defendant had the specific intent to maliciously inflict unnecessary pain to the victim. “ ‘Unnecessary pain’ implies suffering in excess of what is required to accomplish the murder.” Rhines, 1996 SD 55 ¶ 161, 548 N.W.2d 415 (citing Ramseur, 524 A.2d at 229 (citing State v. Sonnier, 402 So.2d 650, 658–60 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983))). The defendant who intends to kill his victim instantly or painlessly does not satisfy this requirement, nor does the defendant who only intended to cause pain that is incident to death. Rhines, 1996 SD 55 ¶ 161, 548 N.W.2d 415 (citing Ramseur, 524 A.2d at 229–30).

[¶ 116] The trial court's limitations also provided a justifiable distinction between those individuals who deserve the death penalty and those who do not. See Lewis, 497 U.S. at 776, 110 S.Ct. at 3099–100, 111 L.Ed.2d at 619–20 (citations omitted). Leniency may be appropriate when a defendant causes a quick and painless death, but when a murderer dismembers or disfigures his victim with a malicious intent to inflict pain, society is justified in imposing the ultimate punishment of death. The law need not be merciful in the face of brutal and torturous violence.

[¶ 117] Finally, the trial court's limiting instructions provide meaningful guidance to the jury. Rather than relying on pejorative adjectives that appeal to emotion and caprice, see Shell v. Mississippi, 498 U.S. 1, 2–3, 111 S.Ct. 313, 314, 112 L.Ed.2d 1, 4–5 (1990) (Marshall, J., concurring) (citing Cartwright v. Maynard, 822 F.2d 1477, 1488 (10th Cir.1987) (en banc)), the trial court enunciated clear and objective standards for imposing the death penalty. The instructions required the jury to make precise factual inquiries regarding the nature of the victim's injuries and the defendant's intent. By establishing these factual requirements, the trial court foreclosed arbitrary and capricious decision-making.

[¶ 118] The United States Supreme Court has approved limiting instructions similar to those used by the trial court. In Walton, 497 U.S. at 652, 110 S.Ct. at 3057, 111 L.Ed.2d at 528, the Court considered an aggravating circumstance that imposed the death penalty for crimes that are “especially heinous, cruel, or depraved.” The Court upheld the state court's limiting construction that “ ‘a crime is committed in an especially cruel manner when the perpetrator inflicts mental anguish or physical abuse before the victim's death,’ ” and that “ ‘

[m]ental anguish includes a victim's uncertainty as to his ultimate fate.’ ” 497 U.S. at 654, 110 S.Ct. at 3057–58, 111 L.Ed.2d at 529 (quoting State v. Walton, 159 Ariz. 571, 769 P.2d 1017, 1032 (1989)). The Court also validated the instruction that a crime is committed in an especially “depraved” manner, when the perpetrator “ ‘relishes the murder, evidencing debasement or perversion,’ ” or “ ‘shows an indifference to the suffering of the victim and evidences a sense of pleasure’ in the killing.” 497 U.S. at 655, 110 S.Ct. at 3058, 111 L.Ed.2d at 529 (quoting Walton, 769 P.2d at 1033). Likewise, in Arave, 507 U.S. at 471, 113 S.Ct. at 1539, 123 L.Ed.2d at 198, the Court considered an aggravating circumstance that required the defendant exhibit “utter disregard for human life.” The Idaho Supreme Court had interpreted the phrase as “ ‘reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the cold-blooded, pitiless slayer.’ ” 507 U.S. at 468, 113 S.Ct. at 1539, 123 L.Ed.2d at 196 (quoting State v. Creech, 105 Idaho 362, 670 P.2d 463, 471 (1983)). The High Court held that the “utter disregard” circumstance, as interpreted by the Idaho Supreme Court, passed constitutional muster because it required an objective determination by the sentencer:

In ordinary usage ... the phrase “cold-blooded, pitiless slayer” refers to a killer who kills without feeling or sympathy.... The terms “cold-blooded” and “pitiless” describe the defendant's state of mind: not his mens rea but his attitude toward his conduct and his victim. The law has long recognized that a defendant's state of mind is not a “subjective” matter, but a fact to be inferred from the surrounding circumstances. Arave, 507 U.S. at 472–73, 113 S.Ct. at 1541, 123 L.Ed.2d at 199 (citations omitted) (emphasis in original). See also Maynard, 486 U.S. at 364–65, 108 S.Ct. at 1859, 100 L.Ed.2d at 382 (indicating approval of state court definitions that limit the death penalty to murders involving “torture or serious physical abuse”); Proffitt, 428 U.S. at 255–56, 96 S.Ct. at 2968, 49 L.Ed.2d at 924–25 (opinion of Stewart, Powell, and Stevens, JJ.) (stating “especially, heinous, atrocious or cruel” circumstance adequately guides the sentencer when it is limited to “the conscienceless or pitiless crime which is unnecessarily torturous to the victim”).

[¶ 119] Other states employing the “vile, horrible and inhuman” circumstance have adopted interpretations that similarly limit the scope of the statute so as to satisfy constitutional requirements. The New Jersey Supreme Court has written: Torture or aggravated battery to the victim shall be found if the defendant intended to cause, and did in fact cause, severe physical or psychological pain or suffering to the victim prior to the victim's death, “severity” measured either by the intensity of the pain, or the duration of the pain, or a combination of both. Ramseur, 524 A.2d at 231. The Virginia Supreme Court construes the phrase “aggravated battery” to mean “a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder.” Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135, 149 (1978) (citations omitted), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). Under Virginia's interpretation, an aggravated battery may include mutilation, gross disfigurement, or sexual assault of a conscious victim prior to death. Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d 554, 565 (1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985).

[¶ 120] The Georgia Supreme Court even more closely approximates the interpretation offered by the trial court here:

[A]n aggravated battery occurs when a person maliciously causes bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof. In order to find that the offense of murder involved an aggravated battery, you must find that the bodily harm to the victim occurred before death. West v. State, 252 Ga. 156, 313 S.E.2d 67, 71 (1984).

[¶ 121] In light of the weight of state and federal authority, we hold that the vile, horrible and inhuman circumstance, as limited by the trial court's instructions, adequately channels the sentencer's discretion as required by the state and federal constitutions.

ISSUE 7.

[¶ 122] Do provisions of SDCL ch. 23A–27A provide insufficient guidance to the sentencer and permit a death sentence to be imposed arbitrarily in violation of the Eighth Amendment to the United States Constitution and Article VI, §§ 2, 18, and 23, of the South Dakota Constitution?

[¶ 123] This Court stated in Rhines, 1996 SD 55 at ¶ 78, 548 N.W.2d 415: When the jury returns a guilty verdict in a capital case, the trial court must conduct a presentence hearing before the jury. SDCL 23A–27A–2. At that time, the jury may hear additional evidence in mitigation and aggravation of punishment. Id. Under South Dakota's capital sentencing statutes, the jury must find the existence of an aggravating circumstance beyond a reasonable doubt before it may impose the death penalty. SDCL 23A–27A–4 and –5. The law permits the jury to consider any mitigating circumstances, but does not impose any standard of proof regarding mitigation. SDCL 23A–27A–1 and –2.

[¶ 124] Moeller contends the capital sentencing statutes are constitutionally infirm because they do not instruct the jury on how to weigh the aggravating circumstances against mitigating factors. More specifically, Moeller argues the capital sentencing statutes fail to adequately channel the discretion of the sentencer, because there is no standard of proof for mitigation and it is unclear whether a certain number of jurors must decide mitigation exists. He also contends that discretion exercised by police and prosecutors in deciding whether to charge the defendant with a capital offense contributes to the arbitrary imposition of the death penalty. We consider each of Moeller's contentions in turn.

1. Absence of a standard of proof for mitigation.

[¶ 126] Moeller asserts that death sentences will be arbitrarily imposed in violation of the state and federal constitutions, because the South Dakota capital sentencing statutes do not include a standard of proof for mitigating circumstances or otherwise explain how the jury should weigh evidence of mitigation against aggravating circumstances.

[¶ 127] We rejected this argument in another capital case, and we need not reiterate our reasoning here. Rhines, 1996 SD 55 ¶¶ 79–82, 548 N.W.2d 415.

2. Should mitigation be found by a certain number of jurors?

[17]

[¶ 129] Moeller notes that the South Dakota sentencing statutes do not specify whether a certain number of jurors must find mitigating factors exist before such factors can influence their sentence recommendation. He contends that this lack of guidance creates the likelihood that the jury will impose the death sentence arbitrarily.

[¶ 130] We reject this argument. Requiring a certain number of jurors to agree on the mitigating value of evidence would likely foster rather than prevent arbitrary results. In McKoy v. North Carolina, 494 U.S. 433, 443–44, 110 S.Ct. 1227, 1233–34, 108 L.Ed.2d 369, 381 (1990), the United States Supreme Court invalidated a requirement that the jury consider only those mitigating circumstances that it unanimously finds. The Court reasoned “it would be the ‘height of arbitrariness to allow or require the imposition of the death penalty’ where 1 juror was able to prevent the other 11 from giving effect to mitigating evidence.” McKoy, 494 U.S. at 440, 110 S.Ct. at 1232, 108 L.Ed.2d at 379 (quoting Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1, 8 (1982)). The same rationale would apply if a certain portion of the jury was required to agree on the mitigating value of specific evidence; a handful of holdout jurors could prevent the others from giving effect to evidence that they believe calls for a sentence less than death. See McKoy, 494 U.S. at 439, 110 S.Ct. at 1231, 108 L.Ed.2d at 378. It is imperative that the jury be permitted to weigh all relevant mitigating evidence, and any attempt to limit consideration of such evidence is rejected by this Court.

[¶ 131] 3. Discretion exercised by police, prosecutors and others results in the arbitrary imposition of death sentences.

[18]

[¶ 132] Moeller also argues that the death penalty is arbitrarily imposed because discretion is exercised by police, prosecutors and others in pursuing murder convictions. The United States Supreme Court has rejected similar arguments and we agree with their reasoning. Prosecutorial discretion allows a defendant to be removed from consideration as a candidate for the death penalty. Gregg, 428 U.S. at 199, 96 S.Ct. at 2937, 49 L.Ed.2d at 889. The decision to afford an individual defendant mercy does not violate state or federal constitutional guarantees. See id. Case law only requires that the sentencer's decision to impose the death penalty be guided by standards that focus “on the particularized circumstances of the crime and the defendant.” Id. Attempts to eliminate discretion in all aspects of the criminal justice system place totally unrealistic conditions on the use of capital punishment. 428 U.S. at 199–200 n. 50, 96 S.Ct. at 2937–38 n. 50, 49 L.Ed.2d at 889 n. 50. As the Gregg Court explained:

[I]t would be necessary to require that prosecuting authorities charge a capital offense whenever arguably there had been a capital murder and that they refuse to plea bargain with the defendant. If a jury refused to convict even though the evidence supported the charge, its verdict would have to be reversed and a verdict of guilty entered or a new trial ordered, since the discretionary act of jury nullification would not be permitted. Finally, acts of executive clemency would have to be prohibited. Such a system, of course, would be totally alien to our notions of criminal justice. 428 U.S. at 199–200 n. 50, 96 S.Ct. at 2937–38 n. 50, 49 L.Ed.2d at 889 n. 50.

[¶ 133] We deem it unnecessary to consider other issues that are rendered moot by our reversal of Moeller's conviction.

AMUNDSON, J., JOHNSON and ZINTER, Circuit Judges, concur. GILBERTSON, J., concurs in part and dissents in part. JOHNSON, Circuit Judge, sitting for SABERS, J., disqualified. ZINTER, Circuit Judge, sitting for KONENKAMP, J., disqualified. GILBERTSON, Justice (concurring in part and dissenting in part).

ISSUE ONE - DID THE TRIAL COURT ABUSE ITS DISCRETION IN ADMITTING “PRIOR BAD ACTS” EVIDENCE INVOLVING THREE SEXUAL ASSAULTS COMMITTED BY MOELLER IN 1973, 1979, AND 1990?

[¶ 139] I respectfully dissent as to the rationale and result of Issue One. I would affirm the trial court on this evidentiary ruling. SDCL 19–12–5 provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

[¶ 140] The trial court admitted the testimony of Moeller's attacks upon Carolyn Beshaw in 1973, Kenneth Moore in 1979 and Tracy Warner in 1990. In so doing, the trial court correctly applied the two criteria necessary to make such a decision: (1) Whether the intended purpose for offering the other acts evidence is relevant to some material issue in the case, and (2) Whether the probative value of the evidence is substantially outweighed by its prejudicial effect. State v. Werner, 482 N.W.2d 286, 288 (S.D.1992)(citing State v. Basker, 468 N.W.2d 413, 415 (S.D.1991)). The trial court found the evidence was relevant to show common method, plan or scheme, intent, identity, and motive and that the probative value was not substantially outweighed by the danger of unfair prejudice.

[¶ 141] Crucial to analysis of this issue is the standard of review. A trial court's determination to admit other acts evidence will not be overruled absent an abuse of discretion. State v. Larson 512 N.W.2d 732, 736 (S.D.1994); State v. McDonald, 500 N.W.2d 243, 245 (S.D.1993); Werner, 482 N.W.2d at 288. An abuse of discretion has been defined by this Court as a decision which is not justified by, and clearly against reason and evidence. We will not reverse a decision if ‘we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.’ Dakota Cheese v. Taylor, 525 N.W.2d 713, 715 (S.D.1995) (citations omitted); State v. Erickson, 525 N.W.2d 703, 710 (S.D.1994). “Upon review ... we must be careful not to substitute our reasoning for that of the trial court.” Larson, 512 N.W.2d at 736. Thus, the question is not whether, had we been the trial judge, we would have admitted the prior bad acts evidence but whether the trial court sitting in this case abused its discretion by doing so. Id.; State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986).

[¶ 142] Unfortunately, the majority devotes only a single sentence to this standard upon which the entire issue hinges before proceeding into a lengthy analysis which is more appropriate to a de novo review rather than applying the abuse of discretion criteria cited above. This is most clearly established by the fact that in the entire text of this discussion, the majority devotes not a single paragraph to an analysis of the similarities between the attack on Becky and the prior bad acts. Instead, the majority focuses entirely on perceived dissimilarities and justifications not to affirm the trial court rather than balancing the facts that weigh for or against admission and applying an in-depth abuse of discretion review.

I. Relevance

[¶ 144] As noted above, the trial court found the prior bad acts were relevant to show common method, plan or scheme, intent, identity and motive. Contrary to the majority's assertion that the trial court only identified five common marks between the crimes charged in the indictment and the prior bad acts, the trial court actually identified ten. They are as follows: (a) Each involved a folding knife similar to a Buck brand knife with approximately the same or similar length blade. (b) At the time the Defendant was apprehended in the City of Tacoma, WA, he had two similar knives in his possession. (c) The object of each attack was sex. (d) The weapon of choice in each attack was the above described type of knife. (e) The wounds and blade length of the knife used to commit the murder was

[sic] consistent with the type of knife used in the assaults. (f) In each instance the Defendant had a passing knowledge or acquaintance of the victim, and the victim had no substantial relationship with the Defendant. FN1 FN1. For the most part, this is correct. Moeller had a passing knowledge of Becky, Moore and Warner. However, the trial court erroneously found Moeller had prior knowledge of Beshaw when he did not. The balance of the finding is correct, however. Moeller did not have a substantial relationship with any of these victims prior to his attacks upon them. (g) In each instance the Defendant committed the act within his own general neighborhood. (h) In each instance the attack was opportunistic, as opposed to a planned attack with the intent to conceal the identity of the perpetrator. (i) In each instance the object of the attack was a demand for sex coupled with the threat to kill and prodding the victim with the knife. (j) In each instance the victim was able to identify the Defendant.

[¶ 145] Moeller does not challenge the trial court's findings that the prior bad acts occurred. Moeller, however, attacks the trial court's ruling of admissibility of those acts arguing that the dissimilarities between the prior bad acts and the offense charged are so substantial that they overcome the State's claim of relevance. Moeller claims the end result is evidence which was impermissibly admitted to show merely that he is a bad man who has committed bad acts in the past similar to the charge he is now facing. State v. Steele, 510 N.W.2d 661, 668 n. 8 (S.D.1994).

[¶ 146] I agree with the majority's analysis that in this case the issue of identity is closely related to the other exceptions contained in the rule such as motive, plan or scheme, and intent. However, I will focus on the issues of identity and modus operandi, as they are dispositive. The exception is more frequently used where two or more crimes appear to have been plotted by the same individual because they exhibit a similar unusual pattern. Distinctive “modus operandi” summarizes the rationale on which the evidence is admitted and points out that the perpetrator's identity is the purpose for which this kind of evidence is invariably used. ‘Modus operandi’ means method of working and refers to a pattern of criminal behavior that is so distinctive that separate crimes are recognized as the handiwork of the same wrongdoer. The evidence is useful to identify the accused as the perpetrator of the crime charged. The inference is from ‘modus operandi’ to the ‘identity’ of the culprit. Since the defendant acted in a distinctively similar manner on another occasion, it is more likely he (rather than someone else) did the act on the occasion of the charged crime. State v. Champagne, 422 N.W.2d 840, 842–43 (S.D.1988) (citations omitted).

[¶ 147] There are common characteristics not unique to this case which are worthy of note. Moeller had an acquaintanceship or knowledge of Becky, Moore, and Warner but not Beshaw. The trial court found that Moeller committed these acts in close proximity to his residence. The attacks against Beshaw, Warner and Becky were committed in or near Sioux Falls, South Dakota. The attack against Moore was committed in Wright, Wyoming. Three of the four attacks were against females for sexual purposes. The fourth was against, Moore, a young male, also for sexual purposes.

[¶ 148] Granted, these are generic facts which by themselves could arguably apply to many violent sexual attacks. Were this all the evidence given the trial court, I would join the majority opinion that the relevance was minimal at best. When making such factual comparisons to justify admission, the facts must be distinctive, Champagne, 422 N.W.2d at 843; People v. Haston, 69 Cal.2d 233, 70 Cal.Rptr. 419, 427, 444 P.2d 91, 99 (1968); contain a marked similarity or a close parallel, State v. Thomas, 381 N.W.2d 232, 237 (S.D.1986); or evidence common features, State v. Willis, 370 N.W.2d 193, 198 (S.D.1985) (citing 2 Wigmore, Evidence, § 357 at 334 (Chadbourn rev 1979)). Otherwise one could argue that the attacker, in the prior bad acts and in the current charge, wore pants, tennis shoes, spoke English, wanted sex, was right-handed, or any other set of generic factors. These facts, while similar, are not so unusual and distinctive as to distinguish the modis operandi of the accused from that of many other perpetrators of the same type crime.

[¶ 149] The majority, however, fails to give sufficient emphasis to the matter of the knife and the circumstances surrounding its use relied upon by the trial court. Beshaw testified Moeller used a black-handled folding knife with a three-inch blade. Moore testified that Moeller assaulted him with a black buck knife. Warner testified that Moeller assaulted her with a folding knife, with a three and a half-inch black and a brown handle. Following questioning by law enforcement about Becky's murder, Moeller fled to the State of Washington. When captured in Tacoma nine months later, he still had in his possession, “two pocket knives or buck knives.” Both knives were folding-type knives, one of which was similar to the knives used by Moeller in the prior bad acts and consistent with Becky's wound.

[¶ 150] While Dr. Randall, the forensic pathologist who performed the autopsy, was unable to testify as to the exact nature of the knife used on Becky to deliver the stab wounds, he did testify that a wound to the chest was four inches deep. The claim of the majority that the “the State's witnesses could not identify either the type of knife or the length of the blade” used in the murder of Becky takes one sentence of Dr. Randall's testimony out of context.

[¶ 151] If one has a four-inch deep knife wound which contains a hilt mark, one must logically conclude the blade that made the wound was of no more than four inches or, as Dr. Randall testified, “

[i]f the blade isn't inserted to the hilt, then we don't see this type of abrasion around the edge of the wound.” I know of no way the blade can be any longer than four inches and the majority does not say how it can be otherwise. Dr. Randall further testified that a blade somewhat shorter than the four-inch depth of the wound could have produced such an injury due to the compression of the chest. Clearly however, the blade did not exceed four inches in length and could not have been substantially shorter than that.FN2 This is much more fact-specific than the majority's assertion that “

[h]aving failed to establish the type of knife or length of blade used against Becky, the State is left with the generic observation that all the offenses involved the use of a knife.” FN2. Dr. Randall testified: This particular wound extended approximately four inches primarily front to back and towards the right.... And the abrasion around here suggests that the blade was inserted to the hilt. Because that's usually what we see causing this type of abrasion is a hilt mark. If the blade isn't inserted to the hilt, then we don't see this type of abrasion around the edge of the wound. Later Dr. Randall was asked: Q: Were you able to estimate roughly the length of the blade that would have caused the wound? A: No. As I mentioned, the depth of the wound was four inches but a shorter blade could have produced that due to the compression of the chest.

[¶ 152] The State represented to the trial court prior to trial that it would prove the knife wounds on Becky were inflicted by the same type of knife as was used in the assaults on Beshaw, Moore, Warner and were found on Moeller's person when he fled to Seattle after he was questioned about his involvement in Becky's death. The State delivered on that representation as no inconsistent facts arose at trial. All known facts on the knife wounds on Becky are consistent with the State's claim.

[¶ 153] A second factor noted by the trial court was that Moeller used this same type of knife to threaten his victims at or near the throat area. Moeller held a buck-style folding knife to Beshaw's throat and demanded sex “or I'll kill you.” Moeller held the buck-style knife to Moore's throat and demanded sex “or I'll kill you.” Moeller held a buck-style folding knife near Warner's throat at her upper arm and breast and said if he did not get sex, Warner and her baby were “going to get cut.” The fatal wound to Becky was a knife wound to the jugular vein of her throat. See State v. Martin, 118 Idaho 334, 796 P.2d 1007, 1011 (1990) (court found assailant's placement of knife to his victims' throats when demanding sex to be a “significant similarity” between charged crime and earlier offenses and “highly relevant to the issue of identity in the present case”). Moeller was later arrested with two such knives in his possession.

[¶ 154] These threats were not all idle talk. In 1973 apparently Moeller did not have sufficient motivation to carry through with his threats when confronted by Beshaw. However by 1979 he was fully capable of cutting Moore with the buck-style knife and did so again in 1990 in the Warner incident. FN3. In People v. Phillips, 127 Ill.2d 499, 131 Ill.Dec. 125, 130–34, 538 N.E.2d 500, 505–09 (1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3290, 111 L.Ed.2d 798 (1990), the Illinois Supreme Court held that where the defendant is charged with a crime evidencing acts of physical violence, such as forced rape and murder, admission of a prior bad act rape did not have as a prerequisite establishing violent acts causing physical injury. Rather, the test is the overall similarities of the two crimes. Clearly if the prior bad acts crimes also contained similar violence, as do two of the three herein, that would be a point in favor of admissibility. In its conclusion of admissibility, the Phillips trial court, like the Moeller trial court, identified ten factors of similarity.

[¶ 155] These attacks with the knife for sex were also unusual in that Moeller made no attempt to hide his identity, hardly a universal trait for a rapist or murderer. State v. Olson, 449 N.W.2d 251 (S.D.1989); Martin, 796 P.2d at 1011. Moeller's initial threat on Beshaw with the knife was done on a busy Sioux Falls street near Axtell Park in broad daylight after he had been loudly ejected from another car. After Moeller failed in his attempted attack on Beshaw, he had her drive him to the Speedy Car Wash where she worked. At this public point, Moeller exited Beshaw's car where she and her car were obviously well known. The attack on Moore with the knife was in a mobile home occupied by Moeller which was right next to Moore's trailer and was occupied at the time of the attack by Moore's father. Moeller had Moore contact Moore's father about a planned trip to Gillette, Wyoming, and went so far as to demand Moore's father come to Moeller's trailer with a note to give to Moeller approving the trip just prior to Moeller's attack on Moore. This provided Moore's father with the location of his son and the identity of his son's would-be attacker. Moeller was known to Warner when he wandered into her apartment for a visit. His opening words were, “

[h]ello, do you know me?” Warner indicated she did. He left after a brief visit only to return a short time later to assault her with intent to forcibly molest her knowing she could readily identify him. He also parked his car in Warner's driveway prior to the attack thus allowing Warner to obtain his license plate number when he left after the attack.

[¶ 156] While the rape and murder of Becky probably occurred in rural Lincoln county, that misses the point. Likewise, the claim that Becky was murdered to hide the identity of her attacker is also off the mark. Moeller had previously overtaken Becky at the intersection of Main and Russell, two of the busiest streets in Sioux Falls at the height of the 5 o'clock rush hour only minutes before the attack upon her. Just prior to that he had been spotted by a clerk next to Becky in a busy store in which he was a well-known customer. Moeller was known to the clerk as the store stocked an unusual brand of cigarettes for Moeller at his request. Moeller's failure to hide his identity prior to his abduction and attack on Becky is even more bizarre when one considers he did substantial prison time for all three prior bad acts either upon a guilty plea (Moore), conviction (Warner), or pursuant to a plea bargain concerning other crimes (Beshaw). Rather than attempt to hide his identity, Moeller seems to display it.

[¶ 157] In keeping with his lack of desire to hide his identity in all four attacks, initial contact with his intended victims occurred within fifteen blocks or less of his victims' homes. The trial court further found it significant that Moeller did not have a “substantial” relationship with Becky, Moore, Beshaw and Warner prior to the attacks. Most rape victims know their attacker on more than a passing basis. FN4. Recent statistics indicate rape victims know their assailants well in eighty-four percent of the cases. Marcia G. Pfeiffer, Date Rape: The Reality, 17 SULRev 283, 284 (1990). One commentator noted this figure demonstrates “acquaintance rape is more common than ‘left-handedness,’ heart attacks, and alcoholism.” Linda Robayo, The Glen Ridge Trial: New Jersey's Cue to Amend its Rape Shield Statute, 19 Seton Hall LegisJ 272 at n. 87 (1994).

[¶ 159] While the facts surrounding the knife are significant in themselves, each fact is not to be examined in isolation when applying the abuse of discretion standard of review.

It is apparent that the indicated inference does not arise ... from the mere fact that the charged and uncharged offenses share certain marks of similarity, for it may be that the marks in question are of such common occurrence that they are shared not only by the charged crime and defendant's prior offenses, but also by numerous other crimes committed by persons other than defendant. On the other hand, the inference need not depend upon one or more unique or nearly unique features common to the charged and uncharged offenses, for features of substantial but lesser distinctiveness, although insufficient to raise the inference if considered separately, may yield a distinctive combination if considered together. Thus it may be said that the inference of identity arises when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses. Haston, 70 Cal.Rptr. at 427–28, 444 P.2d at 99–100 (cited with approval by McCormick's Handbook of the Law of Evidence § 190, n. 37 (2d ed 1972)) (emphasis added).

[¶ 160] This also disposes of Moeller's claim that lack of similarity of victims (in that Becky was a young girl, Beshaw and Warner were adult women, and Moore, a young boy) automatically precludes admission. The comparison of victims is not dispositive, by itself, of the admissibility issue. State v. Houghton, 272 N.W.2d 788 (S.D.1978), reinforces the rule of law that the modus operandi issue is determined based on all factors, rather than pointing to one factor in isolation. Houghton is particularly instructive as it was decided by the same Court who had only five months earlier adopted SDCL 19–12–5 as a court rule.

[¶ 161] In Houghton, the defendant was charged with raping an adult woman. The State sought to introduce evidence of two prior rapes of women under SDCL 19–12–5. The opinion identifies no common characteristics of the three purported victims but goes into great detail on the defendant's unusual methodology in carrying out his alleged attacks. Although the Court found identity was not in issue, it stated the rapes were “committed in a similar, unique manner sufficient enough to be like a ‘signature.’ ” Id. at 792. FN5. The Houghton Court upheld the trial court's refusal to admit the prior bad acts on the basis of undue prejudice to the defendant combined with a minimal probative value. In Houghton, the defendant convinced both the trial court and this Court that identity was not an issue, thus negating any use of the prior bad acts to prove his identity. The issue became one of consent to sex by the purported victim. Herein, Moeller has admitted to the trial court that identity of Becky's killer is a major issue thus putting into question the matter of modus operandi. Second, in Houghton, the defendant vigorously contested he committed the purported prior bad acts. Moeller, however, did not contest his commission of the prior acts. Finally, in Houghton, we applied the proper abuse of discretion standard in affirming the trial court's finding of denial of admissibility. Here, we analyze the opposite result—the trial court's finding of admissibility under the same abuse of discretion standard.

[¶ 162] Thus, one looks to the totality of the circumstances to determine if similar circumstances exist to justify admissibility and not to a checklist, brightline rule, or point counting. The sex and age of the victims are merely factors which weigh for or against admissibility along with all other relevant facts. See State v. Dokken, 385 N.W.2d 493, 497–98 (S.D.1986) (adopting the same analysis under a “similar circumstances” criteria concerning the crime of manslaughter); see also State v. Fender, 358 N.W.2d 248, 253 (S.D.1984)(defendant's prior violent acts committed on his wife held admissible in defendant's conviction for aggravated assault on a policeman).

[¶ 163] Is the use of the buck-style folding knife or similarly-bladed knife, under these circumstances, sufficient to constitute a marked similarity or evidence common features, when combined with the other relevant facts? Moeller claims he is entitled to a “dispassionate, factual comparison between the prior acts and the allegations against Defendant.” That should be carried one step further with a dispassionate, factual comparison between the prior and present acts of this case and acts of a similar nature in other cases in this jurisdiction.FN6 For if what he claims is true, that this type of knife and the circumstances surrounding its use are common, surely other such common cases must have arisen since 1978. However, Moeller fails to cite us to a single South Dakota case which is even remotely similar as to the facts. For that matter, he also fails to cite to any factually similar cases in any jurisdiction which support his argument.FN7

FN6. This type of caselaw analysis is a mandatory obligation of this Court at the sentencing phase of a death penalty case placed upon us by the Legislature pursuant to the enactment of SDCL 23A–27A–12(3). This statute requires, in part, that this Court engage in a comparison of death penalty cases with “similar cases, considering both the crime and the defendant.” See generally State v. Rhines, 1996 SD 55, ¶ 85, 548 N.W.2d 415. FN7. Moeller relies on the following cases to support his argument. In People v. Alcala, 36 Cal.3d 604, 205 Cal.Rptr. 775, 685 P.2d 1126 (1984), cert. denied, 510 U.S. 877, 114 S.Ct. 215, 126 L.Ed.2d 171 (1993), no weapon was used by the defendant to commit his prior sexual acts. In White v. Commonwealth, 9 Va.App. 366, 388 S.E.2d 645 (1990), overruled on other grounds by Lavinder v. Commonwealth, 12 Va.App. 1003, 407 S.E.2d 910 (1991), a knife of unknown description was used to commit the charged rape and a prior rape. In Foster v. Commonwealth, 5 Va.App. 316, 362 S.E.2d 745 (1987), a “small handgun” was used to commit the charged rape and a prior sexual assault. In State v. Hansen, 187 Mont. 91, 608 P.2d 1083 (1980), no weapon was used in a series of sexual assaults after the victims were picked up in bars.

[¶ 164] The following South Dakota murder and manslaughter cases involved the use of a knife, however, none revealed the use of a buck-style knife or folding knife: State v. Blue Thunder, 466 N.W.2d 613 (S.D.1991)(butcher knife); State v. Bennis, 457 N.W.2d 843 (S.D.1990)(butcher knife); State v. Jenner, 451 N.W.2d 710 (S.D.1990), cert. denied, 510 U.S. 822, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993), (Chicago cutlery knife); State v. Bittner, 359 N.W.2d 121 (S.D.1984)(knife of unknown description); State v. Adams 418 N.W.2d 618 (S.D.1988), cert. denied, 513 U.S. 1091, 115 S.Ct. 754, 130 L.Ed.2d 653 (1995), and State v. Boykin, 432 N.W.2d 60 (S.D.1988)(fillet knife); State v. Gregg, 405 N.W.2d 49 (S.D.1987)(knife from a sheath of unknown description); State v. Ashker, 412 N.W.2d 97 (S.D.1987) and State v. Novaock, 414 N.W.2d 299 (S.D.1987)(knife of unknown description).

[¶ 165] As this is a case involving a rape-murder, it is interesting to note that none of the other reported rape-murder cases in this jurisdiction were committed with any type of knife: State v. Davi, 504 N.W.2d 844 (S.D.1993)(death by strangulation); State v. Rough Surface, 440 N.W.2d 746 (S.D.1989)(decedent beaten to death); State v. White, 538 N.W.2d 237 (S.D.1995)(death by rupture of a blood vessel in the victim's brain).

[¶ 166] Only one non-murder case could be located where a rape was committed with a knife: State v. St. Cloud 465 N.W.2d 177 (S.D.1991)(knife of unknown description).

[¶ 167] The attacks against Beshaw, Moore, Warner, and Becky were also aggravated assaults. This jurisdiction's case law concerning aggravated assaults shows the following involved a knife: State v. Washington, 537 N.W.2d 380 (S.D.1995)(carpet knife); State v. Chase in Winter, 534 N.W.2d 350 (S.D.1995)(knife of unknown description); Two Eagle v. Leapley, 522 N.W.2d 765 (S.D.1994) and State v. Gallegos 316 N.W.2d 634 (S.D.1982)(defendant pulled a knife of unknown description upon policemen). The only two aggravated assault cases which are remotely similar concerning weapons are State v. Ganrude, 499 N.W.2d 608 (S.D.1993) and State v. Rios, 499 N.W.2d 906 (S.D.1993). However the balance of the facts are strikingly different from the case now before us. In Ganrude, the defendant pulled a switchblade of unknown size on an adult male at the State Fair. The victim was not physically injured. In Rios, the defendant committed the aggravated assault with a lock-blade knife of unknown size. Rios involved an altercation between two young males in a Rapid City mall. Apparently the victim was not injured with the knife. Neither case involved sexual assault. Further, both Ganrude and Rios were decided more than a year after the trial court made its ruling in this case. FN8. This is a listing of all relevant South Dakota cases that could be located decided after the adoption of SDCL 19–12–5 in 1978. The trial court made its ruling on admissibility of the prior bad acts on June 1, 1992. It clearly could not anticipate the future as to the facts and our decisions in cases that arose thereafter. Nevertheless, the subsequent cases are listed for the sake of completeness and to demonstrate that no case law has arisen since the trial court's decision which would support Moeller's argument that the facts of this case and the prior bad acts are generic.

[¶ 168] Moeller's claim that the evidence of prior bad acts is generic or common fails on another note when the above South Dakota case law is reviewed. In all of the above cases dealing with weapons, the so-called common issue of prior bad acts was never even raised with the exception of Davi, 504 N.W.2d 844. In Davi, we upheld the admission of the defendant's prior threats and harassing phone calls against the decedent. FN9. Moeller and the majority argue that the use of the knife and the circumstances surrounding its use are common. Black's Law Dictionary 275 (6th ed.1990) defines “common” in part as: Belonging or pertaining to many or to the majority. Generally prevalent, of frequent or ordinary occurrence or appearance; familiar by reason of frequency. Also, usual, customary, and habitual .... (citations omitted). Either fact situations are common or uncommon. They cannot be both. Cited herein is every rape, murder and assault case reported in this jurisdiction by written opinion or pursuant to SDCL 23A–27A–13 since 1978 when SDCL 19–12–5 was adopted. These cases are cited to show that if the events surrounding the case now before us are “common,” by definition there should be other “common” cases reported. According to the above definition such similar cases should be “generally prevalent or frequent or ordinary ... usual, customary and habitual.” Instead there are none, not one, save Donald Moeller. Given this, I am not surprised that the majority's conclusion, “

[f]ocusing on only reported cases is an unrealistic and unscientific means of deciding whether the use of a folding or buck-style knife is a unique characteristic” is made without citing supporting authority.

[¶ 169] It is instructive to note that in Dokken, 385 N.W.2d 493, we held it was not an abuse of discretion to admit a prior bad act committed by the defendant which occurred previous to the charged homicide where both the prior bad act and the homicide involved the use by the defendant of the same weapon, a gun. Therein we held:

[t]he term “modus operandi” is included with the “plan” exception in SDCL 19–12–5. Thus, we stated that the plan exception requires that the former acts should indicate, by common features, a plan or design which tends to show that it was carried out by doing the act charged. Id. at 497 (citing Willis, 370 N.W.2d at 198). FN10. This Court has sought to compile information on all potential death penalty cases of first degree murder for possible proportionality review. SDCL 23A–27A–13. Many of these cases have already been cited herein. However, in numerous murder cases the defendant entered a plea of guilty and there was no appeal to this Court or the cases were not cited above because of factual differences. It appears that the following methods of killing were used in those cases not reported above: handgun, ten convictions; rifle or shotgun, four convictions; gun of unknown description, four convictions; strangulation or smothering, seven convictions; beating, three convictions; knife of unknown description, three convictions, beating and knife of unknown description, one conviction; auto jack, one conviction; and no indication, three convictions. There is not a single case involving a homicide with a buck-style folding knife with a three- to four-inch blade.

[¶ 170] The trial court relied on State v. Martin, 118 Idaho 334, 796 P.2d 1007 (1990), in its determination of admissibility as Martin closely parallels the case now before us. In Martin, two prior bad acts concerning sexual assaults were admitted as relevant to the modus operandi with the current charge also being a sexual assault. Affirming the trial court under an abuse of discretion standard of review, the Idaho Supreme Court noted that in all three cases, the perpetrator used “a kitchen knife to perpetrate the crime.” Id. at 1011. However, this was not the same kitchen knife, but similar kitchen knives obtained from the three victims' kitchens.FN11 Likewise, in Commonwealth v. Keizer, 377 Mass. 264, 385 N.E.2d 1001 (1979), the Massachusetts Supreme Judicial Court stated the question of prior bad acts admissibility concerning weapons required that they be similar “not just in the generic sense, but in terms of specific characteristics.” Id. at 1004. There the court admitted a prior bad act where both crimes involved “what appeared to be a square-barrelled pistol and a sawed-off shotgun concealed by a paper bag.” Id. See State v. Breazeale, 238 Kan. 714, 714 P.2d 1356, 1358 (1986), cert. denied, 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 102 (1986), (same result involving the use by the defendant of “a small handgun”); State v. Thomas, 110 Ariz. 106, 515 P.2d 851, 853 (1973)(wherein the court relied in part on the defendant's use of “a knife” and that “the geographical location of the crimes was either in the defendant's neighborhood or in areas where he previously resided”); State v. Braman, 191 Conn. 670, 469 A.2d 760, 764 (1983) (“a shotgun with a cut-down configuration and a small automatic pistol”); Phillips, 131 Ill.Dec. at 134, 538 N.E.2d at 509; and People v. Tate, 87 Ill.2d 134, 57 Ill.Dec. 572, 577, 429 N.E.2d 470, 475 (1981) (deeming the use of similar weapons a “distinctive link” between past and present offenses).

FN11. As noted above, the facts and analysis in Martin are important because it is the framework upon which the trial court herein based its analysis and ruling of admissibility. The majority lists fourteen criteria in Martin which leads it to conclude, “

[t]he numerous and distinctive similarities detailed in Martin are noticeably absent in the case.” This is curious in light of the fact that factor one in Martin is “all were rape-type cases,” factor three “all victims knew Martin,” factor five “all victims were surprised by their assailant,” factor eight, “the assailant always used a kitchen knife to perpetrate the crime,” factor nine, “the knife always came from the victim's kitchen” (the same source), factor eleven, “apparently, the assailant always left without taking objects from the residence,” factor twelve, “the assailant always placed the knife by the victim's throat to perpetrate the crime,” factor thirteen, “the assailant always threatened to kill the victim if she did not comply with his desires” and factor fourteen, “the victims were all injured by the knife.” Compare with ten factors recognized by the trial court listed at p. 496 of this dissent. The majority concludes that Martin “identified a long list of similarities between the other acts and the charged offense.” That is fourteen versus the ten identified by the trial court herein. I know of no legal doctrine that decides such issues by rote number. Rather it is the “totality of circumstances” that controls. (See pp. 498–499 of this dissent).

[¶ 171] The majority argues that it cannot be ascertained for certain that Becky was killed with exactly the same type of knife that was used in the prior bad acts. Although this argument is correct to a point, it does not apply the appropriate standard. The proper standard under Haston, Martin, Breazeale, Thomas, 515 P.2d 851, Braman, Keizer, Phillips, and Tate as applied to the facts of this case, establish that the weapon used in Becky's death is consistent with the weapons used in the prior bad acts, comparing all known criteria. If major inconsistencies arise as to the type of weapon, then clearly the similarity as to the weapon used has not been established. If all points are similar, as they are here, then it is up to the sound discretion of the trial court to determine if they contain a marked similarity or establish common features. Thomas, 381 N.W.2d at 237; Willis, 370 N.W.2d at 199.

[¶ 172] Moeller's claim that the facts of this case, including the distinctive knife and blade size, are generic has no basis in the record and certainly does not have any such merit when compared to other cases decided by this Court. In short, no reported case in this jurisdiction, the facts of which include a buck or folding-blade knife or, for that matter, any type of knife blade of that size used to commit a sexual assault under circumstances similar to the case now before us, involve anyone other than one person—Donald Moeller. See State v. Moeller, 511 N.W.2d 803 (S.D.1994). In that case Moeller was convicted of two counts of aggravated assault for the attack on Warner.

[¶ 173] While it is necessary that the prior bad acts evidence bear a substantial degree of similarity to the present crime in order to show a modus operandi, see Werner, 482 N.W.2d at 289–90 and State v. Christopherson, 482 N.W.2d 298, 301–02 (S.D.1992), the circumstances of the prior offenses need not be identical to those of the crime charged. Martin, 796 P.2d at 1010 and Breazeale, 714 P.2d at 1362; cf. Werner, 482 N.W.2d at 289–90. Herein Moeller's prior bad acts demonstrate his “handiwork” (Champagne), contain a “marked similarity” or “close parallel” (Thomas), and establish “common features” (Willis).

[¶ 174] Fundamentally there is nothing novel about this issue. It is simply a circumstantial evidence question, the type of evidence we routinely instruct juries about in this state. However, there is one major difference. Unlike the jury, we do not find the facts beyond a reasonable doubt. Rather, we focus on the issue from the standard: was the trial court clearly erroneous in its findings that the prior bad acts were the defendant's handiwork or contained common features? When applying the above facts and authority, I believe a “judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion” and thus the trial court did not abuse its discretion when it found the evidence of sufficient probative value concerning the modus operandi. Dakota Cheese, 525 N.W.2d at 715.

II. Prejudice

[¶ 176] If the relevancy question has been determined in favor of the State, the trial court must then proceed to perform a balancing test to determine whether the prejudicial effect of the evidence substantially outweighs its probative value. SDCL 19–12–3; Werner, 482 N.W.2d at 289. As noted by the majority, “ ‘prejudice’ does not mean the damage to the opponent's case that results from the legitimate probative force of the evidence; rather, it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.” State v. Iron Shell, 336 N.W.2d 372, 375 (S.D.1983).

[¶ 177] Moeller advances two arguments in regards to this question. He argues that he was unduly prejudiced due to the sensational nature of the case when combined with the other bad acts and that at least two of the bad acts were too remote in time to be admissible.

[¶ 178] Herein the trial court determined there was substantial need for the prior bad acts evidence by the State because this was a circumstantial evidence case and Moeller had given notice of an alibi defense. The trial court stated in its Memorandum Opinion, “the defendant, in his brief, admits that because the State's case is based on purely circumstantial evidence, ‘identity of the perpetrator is the central issue that will be before the jury.’ ” The court found that there was no other evidence of equal probative value.

[¶ 179] Recently in White, 538 N.W.2d at 243, we adopted the same premise. We held that “the court determines whether the danger of unfair prejudice substantially outweighs the probative value of the evidence ‘in view of the availability of other means of proof’ and the other factors under SDCL 19–12–3 (Rule 403).” Id. citing State v. Basker, 468 N.W.2d 413 (S.D.1991). In White, we affirmed the trial court's admission of the defendant's prior bad acts because “ ‘the probative value is high. The purported victim is dead. There are no other witnesses concerning the issue of the circumstances under which the

[D]efendant was admitted to the decedent's home.’ ” Id. (quoting the trial court's balancing of the probative value against the prejudicial effect).

[¶ 180] Herein the same rationale should apply. Becky is dead. There are no eye witnesses as to the identity of her abductor, rapist and killer. There is no other evidence available to replace the prior bad acts in assisting to identify the perpetrator. Such a finding weighs in favor of admissibility. Id; Werner, 482 N.W.2d at 290. See also U.S. v. Ingraham, 832 F.2d 229, 237 (1st Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988) (“Because the unknown in the case was whether X = Ingraham, the probative worth of this

[prior bad acts] evidence far outstripped any unfairly prejudicial effect.”) (emphasis in original).

[¶ 181] Given the finding of need for this information, the trial court proceeded to do everything it could to avoid any unfair prejudice. The trial court determined it would instruct the jury as to the limited nature of the other acts evidence prior to the individual testimony of Beshaw, Moore and Warner as well as at the close of the trial. See State v. Means, 363 N.W.2d 565, 569 (S.D.1985). Juries are presumed to follow the instructions of the trial court. Id. (citing State v. Reddington, 80 S.D. 390, 125 N.W.2d 58 (1963)). The trial court also refused to admit into evidence at trial an alleged prior assault by Moeller on his wife with a generic knife of unknown origin because of “insufficient evidence.” Further to avoid sensationalism, the trial court refused to allow admission of evidence that, when arrested, Moeller had in his possession pornographic magazines and a “registered pervert” emblem. FN12. The majority concludes: Unable to define concrete similarities among the other acts and charged offenses, the State failed to give the jury any clear guidance concerning the relevance of the other acts to legitimate issues in the case. Without more compelling direction from the State, the jury's verdict almost certainly rested on the forbidden inference that because Moeller was involved in other sexual assaults, he likely committed the offenses against Becky. I respectfully submit that the majority errs when it places this obligation upon the prosecution rather than the trial court and fails to take into account the effect of the trial court's instructions to the jury on the prior bad acts.

[¶ 182] I must also respectfully part company with the majority's conclusion that “

[t]he other acts testimony was a shocking and emotionally gripping contrast to State's sterile circumstantial case.” The “State's sterile circumstantial case” was the brutal multiple rape and murder by repeated stabbings of a totally innocent young girl. By contrast, Beshaw was not injured at all, and Moore and Warner appear to have sustained no life-threatening or serious injuries. While the prior bad acts were hardly pleasant for the victims, claiming them to be “shocking and emotionally gripping” when compared to Becky's murder is not supportable.

[¶ 183] In other cases, unfair prejudice has been claimed by the defendant on the basis that it requires the defendant to not only defend himself against the crime with which he is charged, but allegations of other bad act crimes which may or may not be true. Houghton, 272 N.W.2d 788. Herein no such unfair prejudice arises as Moeller does not contest the existence of the prior bad acts.

[¶ 184] Regarding the issue of remoteness, it is clear the Beshaw incident occurred in 1973 and the Moore incident occurred in 1979. Thus, seventeen and eleven years have passed between these acts and Becky's rape and murder. In Werner, this Court held: Werner claims the other acts testimony was too remote from the acts charged. When standing on its own, the testimony from these women may appear remote in time. In fact, the other acts evidence spanned several years. However, in determining probative value, remoteness must be considered with other factors, such as reliability and necessity. State v. Titus, 426 N.W.2d 578 (S.D.1988). Furthermore, [t]he trial court must consider the nature of the offenses, the similarity of occasions and locations as well as the time elapsed between incidents.’ Id. at 580. ‘

[W]hether prior acts are too remote must realistically depend on their nature.’ State v. Wedemann, 339 N.W.2d 112 (S.D.1983). Moreover, ‘each case depends upon its own particular facts as to a limitation, regarding vintage, on the remoteness. Admission of prior acts must realistically depend upon their nature.’ Titus, 426 N.W.2d at 582 (Henderson, J. concurring specially). Werner, 482 N.W.2d at 289.FN13

FN13. This Court has previously affirmed the admission of prior bad acts with a span of 17 years and more. In Werner, 19 years ran between the first act of sexual misconduct and the time of trial. In Christopherson, 482 N.W.2d 298, 17 years elapsed between the first molestation and trial. In State v. Ondricek, 535 N.W.2d 872 (S.D.1995), 25 years expired between the first sexual misdeeds and trial.

[¶ 185] The trial court followed Werner and concluded on the remoteness issue: Attached to the State's brief is a copy of the rap sheet for the defendant. It is clear that the defendant has been confined in prison the greater portion of his adult life. It further appears that the criminal activity of defendant abated only during periods of incarceration. Defendant plea-bargained a sexual assault charge to a theft plea in 1973 and was incarcerated more or less continuously from 1973 to 1979. Defendant was again in the penitentiary from 1979 to 1988. It would seem that defendant's incarceration is really the only obstacle to a continuous life of crime. Further, this would explain the lack of other similar criminal activity of more recent vintage. It is the opinion of this court that the State should not be deprived of the use of such evidence simply because defendant was denied his freedom by reason of his own criminal activity which deprived him of the opportunity to commit such crimes. When defendant's period of incarceration is taken into account, the period of opportunity between the prior crimes and the principal offense is approximately two years. See Breazeale, 714 P.2d at 1356 (ten years' time not found to be remote in light of fact defendant spent intervening years in prison), and Martin, 796 P.2d at 1014 (period of ten and twelve years not found to be remote where defendant was incarcerated nearly the entire period).

[¶ 186] Based on the extensive pre-trial hearings and briefs on the prior bad acts issue, the trial court clearly had sufficient information to properly perform the balancing test as required by SDCL 19–12–5. State v. Chapin, 460 N.W.2d 420, 422 (S.D.1990). The trial court's determination whether the probative value of the bad acts evidence is substantially outweighed by its prejudicial effect is an issue left to the sound discretion of the trial court, and we will not overturn it on appeal absent a “clear abuse of discretion.” Werner, 482 N.W.2d at 290–91, Champagne, 422 N.W.2d at 842. I conclude that based on the record, no such abuse of discretion occurred as “a judicial mind, in view of the law and circumstances, could reasonably have reached that conclusion” concerning the prejudice issue. Dakota Cheese, 525 N.W.2d at 715.

[¶ 187] In conclusion, I respectfully dissent on Issue One. I am unable to find any evidence in the record or relevant case law from this jurisdiction to support Moeller's attempt to show that this type of knife and the totality of the circumstances of its use are not unusual in the commission of rape-murders in this state. Thus, the theory is reduced to arguably perusing the aisles of local stores to conclude such knives are generic or commonly offered for sale to the public. The so-called fact that these knives are commonly offered for sale proves nothing by itself. So are many other articles of merchandise, some harmless and some possessing potential for harm. For such an argument to have merit, however, one must make the leap from items commonly offered for sale to items used to commit forced rapes, aggravated assaults or murders. Herein Moeller and the majority opinion are unable to cite any facts or cases from this jurisdiction to support this thesis.

[¶ 188] I end this issue as I began it. Our standard of review is abuse of discretion. Did the trial court lack “a judicial mind” in view of the law and the facts of this case in arriving at this decision of admissibility? Another jurist once defined abuse of discretion as shooting at a target. You did not need to hit the bulls-eye but did need to hit the target. I would submit herein the trial court hit the target.

ISSUES TWO, THREE, FIVE, SIX, AND SEVEN
[¶ 190] I concur.

[¶ 191] ISSUE FOUR - DOES A TRIAL COURT'S FAILURE TO INSTRUCT THE JURY AS TO THE DEFINITION OF “REASONABLE DOUBT” AT THE SENTENCING HEARING REQUIRE REVERSAL AND VACATION OF THE JURY'S VERDICT OF DEATH?

[¶ 192] As the majority would reverse on Issue One, it did not reach this issue. With my view that Issue One should be affirmed, I am compelled to address this issue on the merits.

[¶ 193] In South Dakota a person cannot be sentenced to death unless the jury determines the existence of an aggravating factor beyond a reasonable doubt. SDCL 23A–27A–5. Herein the jury was correctly instructed at the guilt phase of the trial as to the definition of reasonable doubt. However, due to inadvertence at the sentencing phase, no similar instruction was given.

[¶ 194] At the outset, the State argues that this issue was waived since Moeller failed to offer a proposed instruction on the subject. State v. Holloway, 482 N.W.2d 306, 309 (S.D.1992). The State then proceeds to argue that the “plain error” doctrine can not apply since this error “is neither obvious nor substantial.” Holloway, 482 N.W.2d at 309.

[¶ 195] I would apply the plain error rule as I disagree with the State on both points. SDCL 23A–27A–3 specifically requires the trial court to properly instruct the jury at the penalty phase of a proceeding. “Upon the conclusion of the evidence and arguments of counsel, the judge shall give the jury appropriate instructions ....” (emphasis added). Therefore the State's argument that any error is corrected by the fact the jury was properly instructed at the guilt phase conflicts with the explicit terms of SDCL 23A–27A–3.

[¶ 196] Further, there is nothing in the record to reflect that the non-law-trained jury, in this most pressure-packed of situations, could and did, accurately recall the reasonable doubt instruction it had previously been given during the guilt phase of the trial. It did not have that instruction in the jury room with it at the penalty hearing. A review of the penalty phase jury instructions shows no reference to the guilt phase instructions, nor do the penalty phase instructions direct the jury to recall or refer back to the guilt phase instructions, based on its memory. How many members of the bench and bar can accurately recite the reasonable doubt instruction from memory? This clearly was an error of an obvious and substantial nature as the other penalty phase instructions made at least ten references to “reasonable doubt” in those instructions without defining it. Given the fact that the above statutes specifically required the trial court to instruct on the definition of reasonable doubt and the fact it failed to do so, I would hold this is plain error and therefore Moeller did not waive the issue for review on appeal to this Court.

[¶ 197] The State then proceeds to argue that if this is a technical violation of a statute, it is not a structural defect affecting the fairness of the trial or, in other words, it is harmless error.

[¶ 198] When the jury is the final sentencer, it is essential that the jury be properly instructed “regarding all facets of the sentencing process.” Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). In Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), the Supreme Court held that an improper definition of reasonable doubt in a jury instruction is a structural constitutional error in the trial which cannot be harmless. The reason is obvious: But the essential connection to a ‘beyond a reasonable doubt’ factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings. A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, ‘the wrong entity judge

[s] the defendant guilty.’ 508 U.S. at 281, 113 S.Ct. at 2082, 124 L.Ed.2d at 190. (emphasis original).

[¶ 199] The State relies upon State v. Holmes, 464 N.W.2d 612, 613 (S.D.1990), wherein we held that it was harmless error when the trial court failed to instruct on the “presumption of innocence.” We arrived at this conclusion based on our view that the record established the defendant's guilt on an overwhelming basis. The State cannot claim such is the state of the record here. It argued, and the trial court accepted the premise, as do I, that the prior bad acts were essential to be admitted based on the circumstantial nature of the facts of this case and lack of direct proof of identity of Moeller as the perpetrator of the crime.

[¶ 200] To me, allowing the jury to speculate as to the standards for reasonable doubt is as major an error as a jury that received guidance from the court, albeit, not accurate guidance. In the end, the result is the same—a conviction not shown to be based upon the Constitution and the correct rule of law. This was a prejudicial error of both statutory and Constitutional magnitude. CONCLUSION

[¶ 201] I would affirm the conviction on the murder charge. I would reverse and remand on the penalty verdict of death to allow the State to impanel a new jury for a retrial of the penalty phase. If the State elects not to do so, the conviction for murder in the first degree under SDCL 22–6–1 would be life imprisonment in the state penitentiary with no possibility for parole.

State v. Moeller, 616 N.W.2d 424 (S.D. 2000). (Direct Appeal - Affirmed)

Defendant was convicted in the Circuit Court, First Judicial Circuit, Lincoln County, E.W. Hertz, J., of first-degree rape and first-degree murder, and was sentenced to death by lethal injection for the murder conviction. Defendant appealed. The Supreme Court, 548 N.W.2d 465, reversed conviction. On retrial, defendant was again convicted in the Circuit Court of Lincoln County, South Dakota, Second Judicial Circuit, formerly a part of the First Judicial Circuit, Arthur L. Rusch, J., of first-degree rape and first-degree murder and was again sentenced to death. Defendant appealed. The Supreme Court, Miller, C.J., held that: (1) defendant was not entitled to continuance of trial date; (2) defendant was not entitled to continuance of pre-trial DNA admissibility hearing; (3) defendant was not entitled to removal of five prospective jurors for cause; (4) state could present evidence of DNA typing done at its request by expert retained by both state and defendant; (5) belated report by state's soil expert was admissible; (6) jury instructions defining aggravating circumstances were not constitutionally infirm; (7) defendant was not entitled to instruction regarding specific mitigating factors; and (8) sentence of death was lawfully imposed. Affirmed. Amundson, J., filed a dissenting opinion.

MILLER, Chief Justice

[¶ 1.] Donald Moeller was previously tried, convicted and sentenced to death for the 1990 rape and murder of Rebecca O'Connell. We reversed that conviction in State v. Moeller, 1996 SD 60, 548 N.W.2d 465 ( Moeller I). At his second trial Moeller was again convicted of first-degree rape and first-degree murder and was sentenced to death. He challenges, among other things, the denial of various continuance requests, the jury selection process, the admissibility of expert testimony, and several aspects of the sentencing phase of his trial. We affirm.

FACTS

[¶ 2.] Nine-year-old Rebecca O'Connell (Becky) of Sioux Falls was last seen on the evening of May 8, 1990. The next day, two men found her body in a wooded area in Lincoln County, South Dakota. An autopsy revealed that she had been vaginally and anally raped, and had sustained knife wounds to her neck, back, shoulder, chest, hip, arms and hands. A pathologist concluded that she died as a result of a cut to her jugular vein. FN1. Paragraph 174 contains a more detailed recitation of the circumstantial evidence linking Moeller to the crime.

[¶ 3.] Donald Moeller was charged with rape and murder in connection with Becky's death. He was tried, convicted and sentenced to death. On appeal, we reversed the conviction because prior bad acts evidence had been improperly introduced. The second trial commenced in April 1997.FN2 He was again convicted and sentenced to death. He appeals. FN2. The Honorable E.W. Hertz was the judge at the first trial. In the interim between the first and second trials, Judge Hertz retired. The case was assigned to Presiding Judge Arthur L. Rusch for the second trial.

STANDARD OF REVIEW

[¶ 4.] Unless otherwise stated, every issue raised by Moeller is reviewed under an abuse of discretion standard. State v. Letcher, 1996 SD 88, ¶ 29, 552 N.W.2d 402, 407 (continuance requests); State v. Darby, 1996 SD 127, ¶ 36, 556 N.W.2d 311, 321 (juror qualifications); State v. Smith, 477 N.W.2d 27, 33 n. 4 (SD 1991); State v. Miller, 429 N.W.2d 26, 38 (S.D.1988) (juror voir dire); State v. White, 1996 SD 67, ¶ 19, 549 N.W.2d 676, 681; State v. New, 536 N.W.2d 714, 718 (S.D.1995); State v. Olson, 408 N.W.2d 748, 752 (S.D.1987); State v. McNamara, 325 N.W.2d 288, 291 (S.D.1982) (admissibility of evidence); Moeller I, 1996 SD 60, ¶ 87, 548 N.W.2d at 485 (expert opinions). We will not overturn the trial court's ruling absent an abuse of that discretion.

ISSUE 1. - The trial court did not abuse its discretion in denying Moeller's requests for a continuance of the trial date.

Facts

[¶ 6.] Prior to trial, Moeller's counsel filed four requests for continuance of the trial date, all of which were denied. He contends that, as a result of these denials, his attorneys were unable to be adequately prepared for trial. He argues that the trial court placed scheduling and expediency of trial over his fundamental rights to due process and effective assistance of counsel.

Decision

[¶ 7.] “ ‘A continuance may properly be denied when the party had ample time for preparation or the request for a continuance was not made until the last minute.’ ” Corson Village Sanitary Dist. v. Strozdas, 539 N.W.2d 876, 878 (S.D.1995) (quoting Fanning v. Iversen, 535 N.W.2d 770, 776 (S.D.1995)) (other citations omitted). However, an accused is entitled as a matter of right to a reasonable opportunity to secure evidence on his behalf. If it appears that due diligence has failed to procure it, and where a manifest injustice results from denial of the continuance, the trial court's action should be set aside. State v. Dowling, 87 S.D. 532, 534, 211 N.W.2d 572, 573 (1973) (citing State v. Wilcox, 21 S.D. 532, 535-36, 114 N.W. 687, 688-89 (1908)).

[¶ 8.] Other factors trial courts must consider in deciding whether or not to grant a continuance include: (1) whether the delay resulting from the continuance will be prejudicial to the opposing party; (2) whether the continuance motion was motivated by procrastination, bad planning, dilatory tactics or bad faith on the part of the moving party or his counsel; (3) the prejudice caused to the moving party by the trial court's refusal to grant the continuance; and (4) whether there have been any prior continuances or delays. Evens v. Thompson, 485 N.W.2d 591, 594 (S.D.1992) (citations omitted). Additionally, when a continuance is requested for lack of time to prepare, the court must consider (1) whether the accused has had ample time to prepare for trial and (2) whether additional time would allow the defendant to be any better prepared to go to trial. 22A CJS Criminal Law, § 624 (1989).

[¶ 9.] In United States v. Medlin, 353 F.2d 789, 793 (6thCir.1965), cert. denied, 384 U.S. 973, 86 S.Ct. 1860, 16 L.Ed.2d 683 (1966), the court was presented with a similar issue. There defendant's counsel claimed he had inadequate time to prepare, detailing the long hours he had already spent on the case and stressing the attention diverted to other obligations of his practice. The trial court denied the motion, and the court of appeals affirmed, relying on the fact that the attorney had been engaged close to a year before trial and in that period of time had employed numerous pretrial procedures to prepare for the accused's defense. Further, the court noted that counsel had not shown what might have been done to enhance his preparation for trial. Finally, it affirmed because it found that no prejudice to the defendant resulted from the denial of the continuance.

[¶ 10.] Here, a period of ten months elapsed between the time Moeller's first conviction was overturned and the time his second trial commenced. The record shows that both of his defense attorneys worked diligently to prepare an effective defense and did an admirable job in presenting a thorough case. Cf. State v. Lang, 354 N.W.2d 723 (S.D.1984) (stating that despite defendant's claim of unpreparedness, he was able to procure and present seven alibi witnesses at trial). Moreover, it must be remembered that both defense attorneys also represented Moeller in his first trial and therefore were familiar with State's case and the concededly voluminous file. There was no specific showing how additional time would have aided the defense any more in its preparation.

[¶ 11.] Moeller's counsel place great emphasis on the fact that they did not wait until the last minute to request a continuance. Indeed, they filed the first request almost eight months in advance of the trial date. They claim their combined experience in defending five death penalty cases, and over twenty murder cases, led them to conclude that eight months was an inadequate amount of time to prepare for trial. We do not find their argument persuasive.

[¶ 12.] Moeller also argues that the trial court violated his constitutional rights by interpreting SDCL 23A-44-5.1 to require that both parties must stipulate to a waiver of the 180-day rule. His argument seems to be that only the defendant must waive the 180-day rule, and that by requiring State to consent to such a waiver, his rights to due process and effective assistance of counsel were violated. This position is untenable. First, the 180-day rule is a procedural rule of court and not a constitutional requirement. State v. Sorensen, 1999 SD 84, ¶ 12, 597 N.W.2d 682, 684; State v. Fowler, 1996 SD 79, ¶ 11, 552 N.W.2d 391, 393; State v. Erickson, 525 N.W.2d 703, 711 (S.D.1994). “Violation of the 180-day rule is not synonymous with violation of a constitutional right to a speedy trial.” Sorensen, 1999 SD 84, ¶ 12, 597 N.W.2d at 684 (citing Erickson, 525 N.W.2d at 711). What Moeller essentially contends is that he not only has a constitutional right to a speedy trial, but he also has a constitutional right to not have a speedy trial. This argument wholly lacks merit.

[¶ 13.] Moeller had approximately ten months from the date the remittitur was filed in Moeller I to prepare his defense. This is an adequate amount of time. The trial court did not abuse its discretion in denying his continuance requests.

ISSUE 2. - The trial court did not abuse its discretion in denying Moeller's request for a continuance of the pre-trial DNA admissibility hearing.

Facts

[¶ 15.] After we reversed Moeller's first conviction, a status hearing was held and a proposed scheduling order was presented to the parties. The court established January 13, 1997, as the date for a Daubert FN3 admissibility hearing pertaining to anticipated DNA evidence. On August 23, 1996, Moeller filed an objection to such date, claiming that it afforded insufficient time to prepare. The objection was overruled.

FN3. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We adopted the Daubert standard for admissibility of expert testimony in State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994). See also, State v. Loftus, 1997 SD 131, ¶ 21, 573 N.W.2d 167, 173; Bland v. Davison County, 1997 SD 92, ¶ 35, 566 N.W.2d 452, 462; Kuper v. Lincoln-Union Elec. Co., 1996 SD 145, ¶ 40, 557 N.W.2d 748, 760. Under Daubert, the trial judge has the task of ensuring that an expert's testimony both “rests on a reliable foundation and is relevant to the task at hand.” Hofer, 512 N.W.2d at 484 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. at 2799, 125 L.Ed.2d at 485).

[¶ 16.] On December 11, 1996, State filed motions identifying the DNA evidence it planned to introduce at trial, which was to be the subject of the scheduled January hearing.FN4 Six days later, Moeller's counsel filed a request for the continuance of the Daubert hearing, claiming that they would not have adequate time to discover and review the results because State had not yet completed testing on all anticipated DNA evidence. After a hearing, the trial court granted Moeller's motion and re-scheduled the Daubert hearing to March 3, 1997.

FN4. The motions sought to introduce testimony regarding (1) typing of the D1S80 marker using the PCR (polymerase chain reaction) amplification technique; (2) typing of STRs and Polymarkers using the PCR amplification technique; (3) typing of the DQ-alpha marker using the PCR amplification technique; (4) typing of the APO-B marker using the PCR amplification technique; and (5) estimation of profile frequencies and match probabilities of these markers.

[¶ 17.] On February 19, 1997, Moeller filed a third Daubert hearing continuance request. He claimed that his counsel had not received the DNA test results in time to conduct a meaningful review, that they had underestimated the amount of time necessary to prepare, and that there now existed a conflict between the hearing date and the defense expert's schedule. The trial court denied the motion as untimely, stating in a letter opinion that the defense had approximately three months' advance notice of the specific DNA testing which State intended to introduce at trial.

[¶ 18.] At the Daubert hearing on March 3-4, 1997, the defense requested and received a standing objection to any testimony concerning the admissibility of the DNA evidence. Moeller's attorneys conducted virtually no cross-examination of State's experts and presented no expert of their own to rebut State's testimony concerning PCR testing of the various DNA markers. The trial court subsequently granted State's motion to admit the DNA evidence, finding that it met the Daubert standards of relevance and reliability.

[¶ 19.] In regard to Moeller's claim that he was not adequately prepared for the hearing, the trial court stated: The Defendant was afforded every opportunity to present evidence and choose

[sic] not to take advantage of that opportunity. The court would assume that counsel for the defendant would argue that they were not afforded an “opportunity” because they were not given the time that they wanted to prepare.... .... A fair interpretation of

[the] facts indicates that the defense's claims that they had no witnesses, had been unable to consult with their consultant, and had not had adequate time to secure expert witnesses for the hearing or to commence the preparation of the “intricacies” in connection with the DNA is not credible. The court would conclude that the decision by the defense not to present witnesses or examine witnesses at the Daubert hearing was a tactical decision made with the intent to create the appearance of error and not the result of being denied an opportunity to do so.

[¶ 20.] On appeal, Moeller contends that it was necessary to have the complete DNA test results well in advance of the Daubert hearing, so that his defense experts could review them in time for the hearing. He argues that because of numerous delays in testing by State, he was not able to receive the results in time to prepare. He asserts that the denial of his continuance requests constituted an abuse of discretion. We disagree.

Decision

[¶ 21.] Earlier herein in Issue 1, ¶¶ 7-8, supra, we discussed the factors which must be considered and applied regarding continuance requests. Corson Village, 539 N.W.2d at 878. See also 22A CJS Criminal Law, § 624 (1989); Evens, 485 N.W.2d at 594.

[¶ 22.] Moeller's attorneys also represented him during the first trial and appeal, where PCR amplification and typing of the DQ-alpha marker were briefed and extensively discussed. Upon query by the trial court, one of Moeller's counsel admitted to being put on notice as early as May or June of 1996 that State planned to introduce evidence of APO-B typing. The defense also had notice as early as December 1996 of the other markers that State planned to introduce. Moreover, a DNA expert was appointed for Moeller in October 1996, and this expert was present for all State testing of DNA evidence that was admitted at trial. Consequently, the defense had access to first hand reports of testing being conducted by State. Finally, one continuance was previously granted to give the defendant additional time to prepare. Moeller has not specifically shown how a second continuance would have aided his presentation of a defense, other than to say it would have given his counsel more time to prepare.

[¶ 23.] Moeller argues that “

[w]hile it is true that a general knowledge of PCR technology, and general legal issues concerning admissibility under Daubert of DNA typing could be reviewed prior to the hearing,” he should have been given sufficient time to review the reports, photographs and bench notes of work completed in the DNA testing lab. He contends that “only when discovery is received and reviewed with a qualified expert can it be determined whether proper protocols, procedures and standards were adhered to in conducting, and interpreting the test results.” This information, however, goes to the weight of the evidence, not its admissibility. See Moeller I, 1996 SD 60, ¶ 73, 548 N.W.2d at 484 (stating that an expert's alleged professional and technical deficiencies go to the weight and credibility of the testimony rather than its admissibility); United States v. Beasley, 102 F.3d 1440, 1448 (8thCir.1996); United States v. Johnson, 56 F.3d 947, 953 (8thCir.1995); United States v. Martinez, 3 F.3d 1191, 1198 (8thCir.1993), cert. denied, 510 U.S. 1062, 114 S.Ct. 734, 126 L.Ed.2d 697 (1994) (holding that deficiencies in procedures go to weight rather than admissibility); Fugate v. Commonwealth, 993 S.W.2d 931, 935 (Ky.1999) (holding same). Thus, contrary to his argument, it was not imperative that Moeller receive the results of the DNA testing prior to the Daubert hearing. FN5. Were we to accept Moeller's proposition that he needed the results of the DNA tests in order to begin preparing for the Daubert hearing, his position is still without merit. The record shows that he received the APO-B evidence on December 26, 1996. In addition, he received all other final marker results except one on January 23, 1997. For the one remaining marker result, a preliminary conclusion was included in the January 23, 1997, discovery. That preliminary result was confirmed by State's expert on February 11, 1997. Thus, Moeller had the results in his possession more than 5 weeks in advance of the Daubert hearing.

[¶ 24.] Because Moeller had ample time to prepare for the DNA-related methodology discussion conducted at the March 1997 Daubert hearing, the trial court did not abuse its discretion in denying his motions for a continuance.

ISSUE 3. - It was not prejudicial error to refuse to remove prospective jurors for cause.

Facts

[¶ 26.] During the jury selection process, there were eight venirepersons that Moeller challenged for cause based on their responses to counsel's questions regarding the death penalty. The trial court denied the challenges. Moeller exhausted all twenty of his peremptory strikes, eight of which were used on the venirepersons that were challenged for cause.

[¶ 27.] On appeal, Moeller contends that failure to remove the jurors challenged for cause forced him to exhaust his peremptory challenges, leaving him with insufficient peremptory challenges to strike one seated juror who should have been stricken. He argues that five of the prospective jurors evinced a constitutional inability to serve impartially and four others FN6 evinced a statutory inability to serve impartially. FN6. Although he claims that he was forced to use four peremptory challenges on prospective jurors who should have been excused for statutory cause, in actuality one of those jurors was excused by the court, and Moeller did not use a peremptory challenge on that potential juror. After being passed for cause, potential juror Mueller was excused by the court based on statements she made outside of court to one of State's attorneys. Because she was excused by the court, she was not among the 56 panelists selected. Therefore, contrary to the claims in Moeller's brief, we need not consider whether she showed actual bias in violation of SDCL 23A-20-12.

Decision

[¶ 28.] “Before we will reverse a trial court's refusal to disallow for cause potential jurors, the movant must show actual prejudice resulting from the trial court's decision.” Darby, 1996 SD 127, ¶ 36, 556 N.W.2d at 321 (citing State v. Blue Thunder, 466 N.W.2d 613, 620 (S.D.1991)). “ ‘Reversible error exists only where defendant can demonstrate material prejudice.’ ” Id.

[¶ 29.] Both the South Dakota and the United States Constitutions guarantee trial by an impartial jury. S.D.Const. art. VI, § 7; U.S.Const. amend. VI; Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 2229, 119 L.Ed.2d 492, 502 (1992); State v. Rhines, 1996 SD 55, ¶ 41, 548 N.W.2d 415, 430; State v. Hansen, 407 N.W.2d 217, 220 (S.D.1987). “Jury selection is an important means of ensuring this right. The voir dire process is designed to eliminate persons from the venire who demonstrate they cannot be fair to either side of the case.” Rhines, 1996 SD 55, ¶ 41, 548 N.W.2d at 430 (citations omitted).

[¶ 30.] One of the primary responsibilities of a trial court is to make certain that a fair and impartial jury has been selected for the defendant's trial. The mere expression of a predetermined opinion regarding guilt during voir dire does not disqualify a juror per se. A potential juror should be excused for cause if that juror is unable to set aside preconceptions and render an impartial verdict. Determination of a juror's qualifications must be based upon the whole voir dire examination; “single isolated responses are not determinative.” Darby, 1996 SD 127, ¶ 34, 556 N.W.2d at 320 (citing Hansen, 407 N.W.2d at 220). In determining whether a prospective juror should be excluded for cause, the United States Supreme Court has applied the following standard: Would the individual's views “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath

[?]’ ” Rhines, 1996 SD 55, ¶ 44, 548 N.W.2d at 430-31 (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985)).

[¶ 31.] Moeller contends that written answers to jury questionnaires and voir dire responses of prospective jurors Raftery, Deschamp, Kinniburgh, Drabek and Traphagen all indicated a strong propensity to automatically impose the death penalty. He additionally argues that subsequent attempts to rehabilitate those individuals gave the judge an erroneous basis to deny the challenge for cause. State responds that such responses were elicited when the defense showed gruesome pictures of the crime scene to the venirepersons before asking them for an opinion. Also, State contends that the defense did not adequately explain the bifurcated procedure in a capital murder case, therefore the potential jurors' responses were based on incomplete information. After reviewing the complete transcript of each voir dire, we agree.

Raftery

[¶ 32.] With Raftery, the defense first showed pictures of Becky's body at the crime scene and before the autopsy was conducted. Defense counsel then asked him whether, even after viewing the pictures, he could be impartial; Raftery responded in the affirmative. Counsel next moved the voir dire onto the topic of the death penalty. When asked what types of crimes would warrant the death penalty, Raftery responded, “Well, the crimes involved in this case would be a good example.” Without first explaining the bifurcated structure of the case, Moeller's counsel then asked: Q: Beyond a reasonable doubt you were satisfied they committed this crime, would you be strongly inclined at the time that you get to make a judgment about penalty to give them the death penalty? A: I would vote for the death penalty. Q: Even if you had the alternative of life? A: Yes. .... Q: If somebody told you not to feel the way you felt, in other words, you know, you've heard a lot in here about, well, if the Judge is going to order you to do this and instruct you to do this, you realize that's kind of a fallacy in a way. You just can't tell somebody to stop feeling something. A: Right. Because it's America and we all have opinions. Q: Right. And your opinion here wouldn't be changed just by somebody telling you to change it. A: No.

[¶ 33.] Based on these responses, Moeller's counsel challenged Raftery for cause. State responded with the following explanation of the sentencing phase: Q. I want to follow up on some questions Mr. Butler asked you. And I'm not sure the process was entirely clear. I'll walk you through the process and ask you some follow-up questions. Let's assume for the sake of argument you find the defendant guilty beyond a reasonable doubt of first degree murder. Okay? Then you come back in for a sentencing hearing, kind of a mini-trial, so to speak. It would be a second trial or hearing. And at that hearing the purpose would be to determine what the sentence is. Okay. The law in the State of South Dakota and in the United States does not allow a juror after they've reached the guilty verdict to come in here at that sentencing hearing and say to themselves, well, I don't care what evidence is presented at the sentencing hearing, I want to sentence this person to life, the heck with the evidence at the sentencing hearing. Okay. That's rule number one. And the Judge would give you that rule if you were selected as a juror in this case. All right? So you would be required under the law to keep an open mind at the sentencing hearing and listen to all the evidence that was presented at the sentencing hearing, and then only after you heard all the evidence at the sentencing hearing you go back and make a determination what the sentence should be. Now, at this sentencing hearing you can count on the fact that I would stand before you and I would argue this is one of those special types of murder under South Dakota law which is subject to the death penalty. And I have to prove that to you beyond a reasonable doubt that this is one of those special classes or categories of murders. Okay. Then the defendant, if he wanted to, he doesn't have to, but in addition to all the evidence you may have heard at the original trial the defendant could present additional evidence at the sentencing hearing. For instance, in some cases a defendant may stand up and argue or his attorney may argue. Please take into account the fact that my client was fourteen or fifteen when this murder happened. Can you take that into account? Or maybe they'll say, please take into account the fact that my client had a mental defect at the time this happened and was really affected mentally and wasn't in the right frame of mind, please take that into account. Or they may say, please take into account the history that my client has had to endure, let's talk about the terrible family life that this person went through and let's talk about the circumstances under which they were brought up. Hopeless environment. Let's talk about that. Please take that into account. Okay? Defendant doesn't have to present any evidence like that, I don't want to mislead you. But he could, okay? And you would be sitting here as a juror and you would be required under the law to consider any evidence that was put forward at that sentencing hearing. Okay. And the law would not permit you to make up your mind on what the sentence should be until after you've heard all of the evidence and after you've considered all of the evidence fairly and then go back and, if we meet our burden that this is one of those special types of cases, and after you've considered all the evidence, then you would be permitted to impose the penalty of death. Okay? You follow that process the way it's set out? A. Yah.

[¶ 34.] After giving that explanation, Raftery indicated that he would be able to listen to all the evidence, follow the judge's instructions as to the sentencing phase, and not lean either way until he had been presented with everything.

Deschamp

[¶ 35.] A similar questioning process occurred with Deschamp. Defense counsel's explanation of the sentencing phase was thus: Q. For our discussion purposes let's say that you found Mr. Moeller guilty of the rape and murder of this nine year old girl. And then the government at a separate hearing, that would be after the determination of guilt, would then come forward and say this is a special kind of case under South Dakota law that makes the punishment of death a possibility. You'd have two choices. Life with no parole or death by lethal injection. Given the strength of your feelings about the crime of rape, obviously very strong feelings and no doubt shared by many people, and this is a murder case, if you got to that point and there was two options available to you and you already found Mr. Moeller guilty, would you be strongly inclined or leaning heavily toward a penalty of death at that point? .... Q. If you got to the point where you had to determine what the appropriate punishment was, and of course Judge Rusch can't say vote that way or vote that way, the attorneys can come before you and argue to you or try to persuade you. And what I'm trying to determine, and if I'm misreading you please correct me, but I know how strongly you feel about rape because we've talked about it here. And that given the type of allegations here would you be strongly leaning toward a punishment of death if you were to find my client guilty? A. Yes. If the evidence say so, yes. Yes.

[¶ 36.] The defense also challenged Deschamp for cause, and State presented an explanation similar to that given to Raftery. After a thorough description of the process, Deschamp stated that he would be able to take all evidence into account and would listen to the judge's instructions before making a decision as to life or death.

Kinniburgh

[¶ 37.] After Kinniburgh gave seemingly conflicting answers to the defense and State's questions, the court questioned her: Q: Ms. Kinniburgh, I - let me ask you a couple of questions, if I may. A: Okay. Q: It felt like I heard you saying opposite things there. I - A: Right. Q: And I need to clarify that. Because, you very clearly told Mr. Butler that, you know, once you were convinced that this defendant was guilty that you would feel that there was really no other option that you would consider other than the death penalty. A: Right. Q: And yet I heard you saying to Mr. Abdallah that you would fairly consider these other options. A: Yeah. Q: Now, I don't have any - you know, it doesn't matter to me which of those it is, but I need to know - A: I guess I didn't understand the additional evidence at the sentencing hearing. I mean, I - I would have an open mind in considering that additional evidence before - all of the evidence before making a final decision. Q: Okay. Do you feel then considering the strong feelings you have got about in favor of the death penalty that that's a realistic option, that you could really sincerely consider that other evidence, or would you go into that with a preconceived idea that you were going to impose the death penalty? A: Open mind. Q: Okay. Based on that I am going to deny

[the defense's] challenge.

Drabek

[¶ 38.] After the defense ostensibly explained the sentencing phase, it asked Drabek whether she would automatically impose the death penalty. In response, she specifically asked for more clarifying information about the sentencing phase: “Are you supposed to have, if it came to that, is there something you're supposed to base your decision on with those?”

[¶ 39.] Later, State gave a thorough, easily understood explanation of the sentencing phase, after which the following exchange took place: Q: Okay. And I guess the question that we need to know is, would you be willing as a juror to keep an open mind until you've heard all of the evidence at the sentencing phase before you made up your mind or would you just go into sentencing and say, I'm automatically going to sentence this person to death? A: I didn't realize, I guess - I guess the way you explained it that I just, that's what I was trying to ask when, you know, when he's convicted if he's convicted guilty without a reasonable doubt in your mind after evidence that you have these two choices and that was it, that's the end. I didn't realize that they could come off saying maybe this person has had, was abused or --- Q: Right. Exactly. A: --- or to any of that degree. Q: And they could if they wanted to, present that kind of evidence. What Mr. Gienapp wanted to ask you, would you be willing to listen to that type of evidence if it was presented, keep an open mind and after hearing all the evidence then make a decision as to whether or not to impose the death penalty or impose life in prison. A: Yes. Q: Could keep an open mind. A: Um-hum. (Affirmative response.) Q: Your Honor, we would resist the challenge. THE COURT: Ms. Drabek, I just want to ask you a question to make sure I understand it. Are you indicating that you would follow the Court's instructions and in making that decision about whether to impose the death penalty you would fully consider the evidence on both sides and you're not preconceived that you would automatically impose the death penalty? A: Yah. Because I guess when I was trying to ask him I thought that once he's, if somebody was convicted and you saw it that way you wouldn't say they were guilty unless you thought they were guilty from the evidence, so I just felt like at that point here's your choices, this is what is going to happen to this person, either it will be life without parole or death, that's it. Those were our choices at that point. I didn't realize that it would go on and you would hear an argument or

[sic] either way of which way you should go with it. THE COURT: Okay. But all you're saying is you would be willing to consider that? A: Right. THE COURT: You're not automatically committing to the death --- A: No. I thought that was the point we'd make our decision.

Traphagen

[¶ 40.] Even after viewing the pictures of the victim, and after an incomplete description of the bifurcated guilt/penalty process, panelist Traphagen still did not express a strong propensity to automatically invoke the death penalty. Consistent with the answers on her questionnaire, Traphagen began her discussion of the death penalty with the general statement that although she thought it should be mandatory in cases involving the murder of children, even in those cases there are extenuating circumstances that should be considered. After the most cursory explanation of the bifurcated process by the defense, Traphagen further opined that if someone was “not in their mind” when they committed a crime, then perhaps the death penalty would not be warranted.

[¶ 41.] After a lengthy questioning by the defense, and apparently in response to the impression that she was not being understood, Traphagen stated: Perhaps it would help - can I say something? My opinion, and I've thought about it a lot ... my opinion on the death penalty, because I've never been close to a case where there's been a crime, I've never been close to anything personally where there's been a violent crime against someone, so everything that I have to draw on is what I would feel if it were committed against me or my family. And that's where I find my opinion. If something were against me, if something were against my family, my child, that's how I would feel. Since it would not particularly be, in this case isn't anybody that I've even heard of, anybody I've ever known, you'd have to sit and listen to everything either way because it didn't happen to me.... If something were to happen to my child what I would want to happen to that person. And I know that's not right or wrong but that's how I feel and why I feel that way. So, yes, I would have to sit and listen to every side. I would have to sit and listen to and be open-minded and say, you know, if you say that life imprisonment is the best for this man, if he's been convicted of a crime, if all the evidence indicates that he's guilty and then you say prosecution says the death penalty is in order, you have to listen to the other side and for any particular reason, you know, and you have to listen to both sides and go on that evidence which you should go. Because, like I say, it's not - it's not personal against me so I can't say that yes, they deserve to die, when I've based my opinion and my feelings on like anything if it happened to me. So you would have to listen to both sides and be open to both sides because it's not personally against me. .... But you would have to listen to both arguments, you know, and if it goes into sentencing stage you at that point and to my knowledge at this point you have to listen to both sides and take everything in account and find if that's the best, the best punishment.

[¶ 42.] Despite Moeller's assertions to the contrary, this spontaneous, insightful oration shows that Traphagen did not harbor a strong propensity to automatically invoke the death penalty.

[¶ 43.] In sum, we do not find an indication that any of the five challenged jurors possessed strong inclination in favor of the death penalty. Moeller is correct when he states that “

[a] search for qualified jurors should not be a ping pong game.” This ping pong approach to qualifying potential jurors could be avoided through the use of complete, accurate information about the entire trial process. The trial court did not abuse its discretion in denying Moeller's challenges for cause for these five venirepersons, and there was no violation of his constitutional right to an impartial jury.

[¶ 44.] Similarly, we find no statutory violation FN7 in denying Moeller's challenge for cause to the other jurors. He contends that panelist Scott indicated she would require the defendant to carry the burden of proof. This is contradicted by a full review of the entire voir dire which, like those jurors previously discussed, shows that Scott's response was based on an incomplete understanding of the penalty phase and which side had the burden of proof. After an explanation by State, and upon further questioning by the trial court, Scott indicated that she would follow the court's instruction and would not impose an obligation upon the defendant to present evidence in mitigation.

FN7. Moeller cites SDCL 15-14-6(6) and (7) as authority for a showing of a statutory inability to serve. That statute pertains to civil juries. The statute in effect at the time of trial governing challenges for cause in a criminal case was SDCL 23A-20-12, which provided in pertinent part: A specific challenge for cause is that a juror is disqualified from serving in the case on trial because of: (1) Implied bias; or (2) Actual bias. Actual bias is the existence of a state of mind on the part of a juror, in reference to the case or to either party, which satisfies the court, in the exercise of sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging. SDCL 23A-20-12 has since been repealed. SL 1999 ch. 285.

[¶ 45.] Moos was another panelist who gave an answer based on incomplete information. In response to a question by the defense, she indicated that she would not consider a life sentence once the defendant had been found guilty of aggravated murder. However, the record reveals that the defense had not adequately explained the sentencing phase of the trial before asking the question. Once State explained the process to her, and the trial court followed up with further questioning to clarify her position, Moos stated that she would be able to consider all factors before deciding on a sentence of death or life in prison. When asked to explain her seemingly contradictory answers, Moos stated that her answers on the questionnaire and those given to the defense no longer correctly reflected her views, because she had been “enlightened on how the system works.”

[¶ 46.] Finally, as noted by the trial court, panelist Hiland was “obviously a very gruff individual” as reflected in his responses to the defense's voir dire questions. However, there was nothing in the record that indicated he possessed any animosity toward the defendant. In fact, he stated several times that he would keep an open mind and his decision would be based upon the evidence.

[¶ 47.] A determination of a juror's qualifications must be based upon the whole voir dire examination, not upon “single isolated responses.” Darby, 1996 SD 127, ¶ 34, 556 N.W.2d at 320. A review of the complete voir dire transcript shows that the trial court did not abuse its discretion in denying Moeller's challenges for cause, because it has not been shown there were any constitutional or statutory violations of his right to an impartial jury. FN8. We find no just cause that would have warranted the removal of any of the challenged jurors. However, were we to find the trial court erred in failing to remove a potential juror for cause, we would still reject Moeller's argument that the failure to remove the challenged jurors forced him to exhaust his peremptory challenges. The United States Supreme Court recently held that if a defendant elects to cure the erroneous refusal of a trial judge to dismiss a potential juror for cause by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any right under the Federal Rules of Criminal Procedure or the Constitution. United States v. Martinez-Salazar, 528 U.S. ----, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). But see State v. Etzkorn, 1996 SD 99, 552 N.W.2d 824 (reversing and remanding a DUI conviction where: (1) the court erroneously refused to remove two jurors for cause; (2) Etzkorn exhausted his peremptory challenges removing the two incompetent jurors; and (3) Etzkorn alleged on appeal the names of several jurors he would have removed using his peremptories had he not exhausted his peremptories on the two incompetent jurors).

ISSUE 4.

[¶ 48.] The trial court did not abuse its discretion in sustaining certain prosecution objections to voir dire by defense counsel.

Facts

[¶ 49.] During the voir dire process, Moeller's counsel attempted to ask potential jurors whether they could vote for life imprisonment without parole where the defense did not introduce any evidence in mitigation at the sentencing phase. State objected to each of these questions, claiming that it required the venireperson to speculate. The court sustained the objections. On appeal, Moeller contends that was an abuse of discretion. He argues that such questions were merely an attempt to determine whether the potential juror could vote for life imprisonment if the defense did not introduce any evidence in mitigation. He posits that the prosecution was allowed to ask hypothetical and speculative questions related to potential mitigation testimony that might be introduced by the defense.

Decision

[22]

[23]

[24]

[¶ 50.] Counsel is allowed reasonable latitude in questioning prospective jurors. Smith, 477 N.W.2d at 33 n. 4; Miller, 429 N.W.2d at 38. Moreover, hypothetical probing of jurors' attitudes toward evidence is permitted. Id. “While prospective jurors may not be questioned with respect to hypothetical sets of facts expected to be proved at trial, thus committing them to a decision in advance, they may be subjected to hypothetical questions about their mental attitude toward certain types of evidence.” Miller, 429 N.W.2d at 38 (citing Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9, 12 (1982)).

[¶ 51.] A review of the voir dire transcripts reveals that the questions posed by the defense were in fact an attempt to get potential jurors to prejudge the case, whereas the hypothetical questions asked by State had no relationship to any facts at issue in the trial and were merely given to explain the legal process. A typical example of the type of questions posed by the defense are shown by the questions asked of potential juror Moos: Q: Now, Mr. Abdallah talked to you about the fact that the defense could put evidence on in mitigation and you indicated that you would consider that? A: Right. New evidence. Q: Well, it wouldn't be new evidence. A: Well. Q: But there is no burden on the defense to do that. A: Right. Q: What if the defense didn't do that? Mr. Abdallah: I would object, your Honor. Asking her to speculate. The Court: Sustained. Q: You understand that the defense does not have to put on mitigation? A: Right. Q: Then when Mr. Abdallah was talking to you he was saying that you'd be considering this mitigation that the defense put on and you responded yes, I'd consider that before making a decision. A: Right. Q: Right. What if you had nothing to consider? Mr. Abdallah: Same objection, your Honor. The Court: Sustain that objection.

[¶ 52.] In comparison, State's hypotheticals were used to explain the application of the law and the procedure used at the sentencing phase. See voir dire of potential juror Raftery, supra, Issue 3 ¶ 33.

[¶ 53.] Although it is acceptable to use hypothetical fact situations to explain a legal concept or its application, it is improper to then ask potential jurors how they would respond to the hypothetical situation once given. Herein lies the difference between what Moeller's counsel did and what State did. It was proper for State to use the hypothetical concept of a mental defect or a 15-year-old person to explain the concept of a mitigating factor. However, it would have been improper for it to then ask the potential juror whether he would impose a life sentence or death based upon that hypothetical, especially if those were truly the facts of the case. Such a question would be akin to “staking out” the potential juror's responses, and that is not permitted. See generally Annotation, Propriety and effect of asking prospective jurors hypothetical questions, on voir dire, as to how they would decide issues of case, 99 A.L.R.2d 7, § 4 (Later Case Service 1993).

[¶ 54.] When the defense asked the potential jurors whether they could vote for life imprisonment where there was no evidence in mitigation presented, it was an attempt to get a prejudgment from the jurors. An objection to such a question was proper, and the trial court did not abuse its discretion in sustaining such an objection.

ISSUE 5.

[¶ 55.] The trial court did not abuse its discretion in allowing State to offer into evidence results of APO-B DNA typing done at its request by an expert working for both sides.

Facts

[¶ 56.] In 1990, prior to the first trial, State sent swabs and blood samples to Dr. Moses Schanfield, director of Analytical Genetic Testing Center (AGTC). He performed conventional serological tests and extracted DNA so that it could be sent to another lab for testing. At the time AGTC was not conducting DNA testing. It developed capabilities to do so sometime shortly thereafter.

[¶ 57.] On January 24, 1992, Moeller filed a motion to appoint Dr. Schanfield as an expert for the defense “for the purpose of conducting forensic DNA testing in the instant case and review and replication of those tests conducted at the direction of the State of South Dakota in the instant case.” A hearing was held the same day. The exchange was as follows: The Court: I did want to talk about defendant's expert witnesses. How are we going on that, Mr. Butler? Mr. Butler: I do have an order today along with the affidavit regarding - if I may approach the Bench? The Court: Yes, do so. Mr. Butler: From the Genetic Testing Institute as it concerns the additional tests.... It's my understanding, again talking to Mr. Masten, we should not encounter any difficulty in formally agreeing to what needs to be submitted to Mr. Schanfield.... Mr. Masten indicated it might be advisable to discuss or point out for the Court that I have discussed this particular point with my client and he is in agreement with the decisions I'm making at least as to seeking the expertise. The Court: Is that true, Mr. Moeller? Mr. Moeller: Yes. .... Mr. Masten: One issue that I just wanted in the record, Your Honor. The Court might want to inquire of Mr. Moeller in regard to the defense's expert Mr. Schanfield. Mr. Butler - I made Mr. Butler aware when we had one of these telephone discussions when he was looking for an expert, it came up just because I remembered the name, the State of South Dakota as part of the investigation in this case submitted some samples, two of the sperm samples, to Dr. Schanfield's lab in I believe it was 1990 for advance testing using some enzyme technique. So Dr. Schanfield's lab had our samples and did testing for us in 1990 and they are proposing to hire him now as a defense expert. I don't have a problem with that, but I did want it in the record so that if there was ever a habeas proceeding and it came out that the State and the defense both used the same laboratory we couldn't be accused of double dealing. The Court: Mr. Butler had mentioned that to me earlier. It was off of the record but I assumed that would get in the record at some point in time in these proceedings. Mr. Butler: The other point I would make, Your Honor, I fully disclosed all of that to Mr. Moeller, he is fully apprised of it. And I discussed that very thing with Mr. Schanfield, he did not perceive that as a conflict. And I did a preliminary discussion with the Court and the Court did not and I do not perceive it. So therefore I hope we have resolved that matter. The court signed an order appointing Schanfield as a defense expert “for the purpose of conducting and replicating certain DNA tests.”

[¶ 58.] On May 1, 1992, Schanfield received defense samples. At the direction of the defense, DNA was extracted but no tests were conducted. The decision not to conduct any DNA tests on its samples was a strategic choice by the defense. One month later on June 12, 1992, Schanfield testified for State at the Frye hearing FN9 on the issue of the admissibility of DNA PCR-based testing of the DQ-alpha marker. FN9. Frye v. United States, 293 F. 1013 (D.C.Cir.1923) (holding that in order for expert scientific testimony to be admissible, it must be “generally accepted” as reliable in the relevant scientific community).

[¶ 59.] After testifying at the Frye hearing, Schanfield approached State and informed it that his lab had developed the capability to conduct PCR-based APO-B typing. State sent a letter to the defense on June 17, 1992, asking whether they intended to pursue the APO-B testing with Schanfield. According to Moeller's attorney, he responded to the letter by indicating that the inquiry was premature because the trial court had not yet issued a decision from the Frye hearing on whether to admit any PCR-based typing. Additionally, counsel indicated that he wished to review Schanfield's validation studies prior to his deciding whether to pursue such testing. He claims he did not receive Schanfield's validation studies, but instead received only an article about APO-B typing.

[¶ 60.] After receiving no indication from the defense that it intended to pursue the APO-B typing with Schanfield, State directed him to conduct the tests on State samples. The results failed to exclude Moeller as a possible semen donor. On August 17, 1992, approximately two weeks into Moeller's first trial, State filed an offer of proof seeking to introduce its evidence of PCR-based APO-B typing. A hearing was held the same day. The defense objected to the introduction of such evidence, asserting that it was untimely offered and that a Frye hearing was necessary in order to determine its admissibility. The trial court denied the State's offer of proof, and the APO-B evidence was not admitted at the first trial.

[¶ 61.] Prior to the second trial, State filed a motion to introduce Schanfield's APO-B evidence. In response, the defense filed a motion to prohibit the introduction of such evidence on the grounds of prosecutorial misconduct. The motion alleged that “without knowledge or approval of the Defendant, Schanfield informed

[State] that his laboratory was purportedly capable of conducting a new DNA typing procedure known as APO-B.” It further alleged that State and Schanfield acted in collusion by conducting APO-B typing without informing the defense. Moeller argued that even though the defense did not have Schanfield conduct any DNA testing, or have the APO-B typing procedure done, Schanfield still did not have authority to make such services available to State without his knowledge or permission.

[¶ 62.] After a hearing the trial court entered an order denying the defendant's motion to suppress. Moeller appeals, arguing that the inclusion of Schanfield's APO-B tests violated his attorney-client privilege, his Sixth Amendment right to effective counsel, and his Fifth Amendment rights to due process and protection against self-incrimination, as well as his similar rights under the South Dakota Constitution.

Decision

[¶ 63.] There is considerable conflict of authority as to under what circumstances an expert witness retained by one party will be allowed to testify upon request of the other party. State Highway Comm'n v. Earl, 82 S.D. 139, 142, 143 N.W.2d 88, 89 (1966). In Earl, after surveying other jurisdictions' treatment of similar situations, we declined to extend the attorney-client privilege to cover the services of a real estate appraiser who had first completed an appraisal for the defendant, and who was later called to testify by the plaintiff. We reasoned that “

[t]he mere fact the expert may have communicated his opinion of value to either the attorney or client does not make it a privileged communication.” Id. at 147, 143 N.W.2d at 92.

[¶ 64.] Moeller cites Hutchinson v. People, 742 P.2d 875 (Colo.1987), in support of his position. There, the Colorado Supreme Court held that the prosecution's use of a defense expert in its case-in-chief, in the absence of a waiver, violated the defendant's right to effective assistance of counsel. (The defendant had retained a handwriting analyst, but decided not to use him at trial. The prosecution then subpoenaed him to testify as to his conclusions regarding similarities between the defendant's handwriting and the handwriting on a vital piece of evidence that inculpated the defendant.) In reaching its decision, the court reasoned that the prosecution should not be allowed to intrude into the confidential relationship between a defendant and his expert.

[¶ 65.] In response, State directs our attention to State v. McDaniel, 485 N.W.2d 630 (Iowa 1992), wherein the Iowa Supreme Court held that the prosecution's retainment of a psychiatrist who had initially conducted an examination on behalf of the defendant was permissible. It reasoned that the physician-patient privilege was not invoked in cases where a psychiatrist was appointed and paid for by the state. Further, it found there to be no attempt to secure privileged information from the psychiatrist, stating that by holding otherwise “a criminal defendant could block the State from the testimony of likely experts by procuring as many examinations from as many experts as possible.” Id. at 633.

[¶ 66.] Another case more directly on point than either Hutchinson or McDaniel is State v. Bockorny, 125 Or.App. 479, 866 P.2d 1230 (1993), where the defendant retained an expert to testify whether material found on a pair of scissors was blood. The defense also discussed other issues with the expert, but decided not to have him testify as to those aspects of the case. Before the expert testified, the prosecution contacted him concerning his anticipated testimony about the scissors. During the conversation, the prosecutor also asked the expert about a certain analysis method that was unrelated to the scissors. The expert later contacted the prosecution and offered to testify as to the analysis method, and the prosecution accepted. Consequently, the expert testified for the defense regarding the scissors and for the prosecution regarding the unrelated analysis method. The defendant was ultimately convicted of the crimes charged.

[¶ 67.] On appeal, the Bockorny court stated: “There is no dispute that, if an expert is willing to give opinions to both sides, a litigant can be placed in a difficult, if not impossible, situation at trial. However, it is not a situation prohibited by law.” Id. at 1235. It reasoned that since the expert consulted with the respective parties on unrelated aspects of the case, and there was no evidence that he shared confidential information with the other side, no attorney-client or work product privilege had been violated.

[¶ 68.] After considering the applicable legal principles, we are persuaded that the trial did not abuse its discretion in allowing in Schanfield's testimony concerning APO-B evidence. Here, Moeller's assertion of error boils down to an allegation that Schanfield should not have told the prosecution that he had developed the capability to conduct APO-B typing. We see no violation of the attorney-client privilege in such a communication, especially when it relates merely to general developments in technology.

[¶ 69.] Moreover, we do not accept the logic of Moeller's argument that the State had only retained Schanfield for preliminary serology work and that his DNA services were reserved to the defense. Indeed, at the time State utilized Schanfield's services in 1990, his lab did not yet have the capability to conduct any forensic DNA analysis. That is why he was not retained as a State DNA expert. Similarly, at the time he was retained by the defense as a DNA expert, he had acquired DNA DQ-alpha typing capabilities, but he had not yet begun conducting APO-B typing. We agree with the trial court's apt observations: It is somewhat disingenuous for Moeller to argue that he knew that AGTC had been hired to do

[only] serological work and didn't anticipate that AGTC would do DNA work for the State because he knew that a relationship with the State existed. The same reasoning could be used to argue that AGTC had been hired by the Defense to do DQ-alpha testing and that the State had no way of knowing that the Defense was interested in APO-B testing. It is unrealistic to attempt to draw such narrow lines holding that an expert can be employed for one purpose and one purpose only and can talk to that party that hired him only about that narrow topic while talking to the other party only about the narrow topic for which they hired him .....

[I]f the court is to impose an absolute prohibition on communications by counsel with an expert who has already been employed by the other party, then the Defense had no business talking to AGTC in the first place. If the facts were different in this case, either in that there was revelation of defense communications to the expert, or if the expert had first been retained by the defense, the court would have no concerns with suppressing these test results, but given the actual facts, there is no justification for doing that.

[¶ 70.] There was no abuse of discretion in admitting Schanfield's expert testimony, because both sides were aware that he was performing work for the other side. While we do not condone such practice by any witness, we see no prejudice.

ISSUE 6.

[¶ 71.] The trial court did not abuse its discretion in admitting a belated report by State's soil expert, and in failing to conduct a Daubert admissibility hearing on the soil expert's testimony.

Facts

[¶ 72.] In Moeller I, John Wehrenberg, a retired professor of geology who specializes in forensic examinations of soils, submitted a report dated May 9, 1991, concluding that a soil sample taken from the left front fender of Moeller's pickup was so similar in many ways to soil taken from the crime scene that the two soils could have had the same place of origin. Among the minerals identified in both locations was one called gahnite.

[¶ 73.] Wehrenberg submitted a second letter dated April 7, 1997, to State regarding gahnite, concluding that the mineral was “very rare.” This letter was faxed to Moeller's counsel the next day. Counsel filed a motion in limine on April 28, 1997, seeking to prevent the introduction of Wehrenberg's conclusions embodied in the April 1997 letter, arguing that the letter contained new conclusions not previously seen. In addition, they contended that the letter was untimely and its late disclosure did not give them adequate time to determine the accuracy of the conclusion that the mineral in question was indeed gahnite.

[¶ 74.] A hearing on the motion was held on Thursday, May 1, 1997. In addition to the points presented in the motion, Moeller's counsel raised the argument that a Daubert hearing should be conducted regarding the method of analysis Wehrenberg performed on the soil sample. After hearing counsel's arguments, the court denied the motion, finding that the only information added by the April 1997 letter was Wehrenberg's opinion on the rarity of gahnite. The court ordered State to make Wehrenberg available to Moeller's expert over the weekend, (prior to his taking the witness stand the following Monday), in order to answer any questions the defense had about the April 1997 letter. On Monday, May 5, 1997, Wehrenberg testified as to his opinions concerning a comparison of the soils at the crime scene and on Moeller's pickup, and regarding gahnite. Moeller's counsel requested and received a standing objection to such testimony.

[¶ 75.] On appeal, Moeller argues that the admission of Wehrenberg's belated April 1997 letter opining on the rarity of gahnite, as well as his testimony to that effect, was an abuse of discretion. He asserts that the late disclosure of the report prohibited testing by his soil expert to determine whether the mineral in question was indeed gahnite. Additionally, he contends that a Daubert hearing was necessary to determine whether the reasoning or methodology underlying Wehrenberg's testimony was scientifically valid and admissible. Because the trial court did not order State to conduct tests to conclusively identify the mineral, or allow the defense time to test the mineral itself, or conduct a Daubert hearing, Moeller argues that such evidence should be excluded.

Decision
i. Admission of the belated report

[¶ 76.] In State v. Sahlie, 90 S.D. 682, 687, 245 N.W.2d 476, 478-79 (1976), we stated that “

[d]ue process cannot be satisfied unless the defendant is provided some opportunity to examine possible exculpatory evidence long enough before trial so as to have at least an opportunity to determine if such evidence is or is not exculpatory.” The Sahlie holding was later modified to the extent that omission or belated disclosure was no longer, without exception, prejudicial error. State v. Reiman, 284 N.W.2d 860, 870 (S.D.1979). Now, in order to find error, the defendant must establish that the belated disclosure of evidence was material to the issue of guilt, Reiman, 284 N.W.2d at 869, because if it was not material, it could not be violative of due process. Id. (citations omitted). This rule applies to both inculpatory and exculpatory evidence.

[¶ 77.] Both parties are in agreement about the rarity of gahnite; Wehrenberg characterized it as a “very rare” mineral, and Perry Rahn, Moeller's soil expert, described it as “extremely rare.... Gold is more common than gahnite.” Therefore whether gahnite was indeed found in both the wheel well of Moeller's pickup and at the crime scene was a strong piece of circumstantial evidence and material to the issue of guilt.

[¶ 78.] The issue of materiality aside, Moeller's claim, that the late disclosure of the April 1997 report prohibited testing by his soil expert to determine whether the mineral in question was indeed gahnite, is unfounded. Gahnite was mentioned in the May 1991 report at least twice,FN10 and it was also characterized at the first trial as being a mineral of “substantial interest” to Wehrenberg when he testified in State's case-in-chief.FN11 Both the 1991 report and Wehrenberg's testimony at the first trial placed Moeller on notice that gahnite had been identified as a possible piece of evidence linking him to the crime scene.

FN10. The report described one particular grain of soil as, “well rounded, polished brown-black, high index, under microscope isotropic, gahnite (?).” It also described another sample particle as “black rounded glassy grain, probably high index, may be a spinel.” According to testimony of both Wehrenberg and Rahn, gahnite is a member of the spinel group of minerals. Later in the report, when comparing soil from the left fender wells to soil from the crime scene, Wehrenberg reported that he identified “Gahnite” in the left front fender well and in two crime scene samples. FN11. There the testimony was as follows: Q: When you take out the minerals that are ... common to any place east of the Rockies and one would expect to find anywhere in South Dakota how many points of comparison were there that were of substantial interest to you? A: Well, in terms of the mineral grains themselves there was, certainly with the hornblende was the significant one, the rutile, biotite, there is a mineral that I have tentatively identified as gahnite which is a rather rare mineral which I found in both samples. And that, that gahnite could conceivably be an individuating mineral if I knew more about the distribution of gahnite in this region....

[¶ 79.] “ ‘

[W]e do not equate late disclosure with suppression, especially where, as here the trial record indicates that defense counsel made use of the information at trial.’ ” State v. Knecht, 1997 SD 53, ¶ 21, 563 N.W.2d 413, 421 (quoting State v. Fox, 313 N.W.2d 38, 40 (S.D.1981) (citation omitted)). The trial court did not abuse its discretion in admitting the April 1997 report.

ii. Allowing Wehrenberg to testify without first conducting a Daubert hearing.

[¶ 80.] Moeller also contends that a Daubert hearing was necessary to determine whether the reasoning or methodology underlying Wehrenberg's testimony was scientifically valid and admissible, and that the failure to conduct such a hearing violated his due process rights. Specifically, Moeller challenges the soil sample collection methodology and the visual inspection method of analysis used by Wehrenberg to identify the mineral in question as gahnite.

[¶ 81.] Prior to Wehrenberg's testimony, defense counsel orally requested a Daubert hearing. The court denied the motion, stating that in its view the Daubert standard was somewhat more liberal than the Frye standard. The court further found Wehrenberg's testimony and report admissible “based upon the qualifications that he's shown and the ruling of the Supreme Court already in regard to the evidence tendered by him.” FN12 However, the court did grant Moeller a continuing objection. FN12. In Moeller I, we held that the trial court did not abuse its discretion in permitting Wehrenberg to testify. We found Moeller's contention that such testimony lacked any scientific conclusion went to the weight of the evidence, not to its admissibility. Moeller I, 1996 SD 60, ¶ 92, 548 N.W.2d at 486.

[¶ 82.] SDCL 19-9-7 and Rule 104(a) of the Federal Rules of Evidence provide in pertinent part: “Preliminary questions concerning the qualification of a person to be a witness ... shall be determined by the court....” In Daubert, the Supreme Court mandated that judges, when faced with a proffer of expert scientific testimony, conduct a “gatekeeping” preliminary evaluation to determine whether the proffered testimony is allowable. 509 U.S. at 597, 113 S.Ct. at 2798-99, 125 L.Ed.2d at 485.

[¶ 83.] Complementing SDCL 19-9-7 and Rule 104(a) are SDCL 19-9-9 and Rule 104(c), which further provide that “

[h]earings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if he so requests.” See also, United States v. McVeigh, 955 F.Supp. 1278, 1279 (D.Colo.1997), aff'd, United States v. Nichols, 169 F.3d 1255 (10thCir.1999), cert. denied, Nichols v. United States, 528 U.S. 934, 120 S.Ct. 336, 145 L.Ed.2d 262 (1999); 60 Am.Jur.Trials The Daubert Challenge to the Admissibility of Scientific Evidence § 25 (1996)

[hereinafter The Daubert Challenge] (stating that whether a hearing is required outside the presence of a jury depends upon whether it is required in the interests of justice).

[¶ 84.] We have never had occasion to interpret SDCL 19-9-9, but in federal courts, full evidentiary hearings for preliminary Rule 104 assessments are not routinely used. The Daubert Challenge, supra, § 27. In United States v. Quinn, 18 F.3d 1461, 1465 (9thCir.1994), the court rejected the defendant's argument that he was entitled to a full evidentiary hearing on the reliability of an expert's scientific process. Citing Daubert, the court stated, “

[w]e cannot conclude that the court abused the discretion trial courts must exercise in choosing the best manner in which to determine whether scientific evidence will assist a jury.” Id. Relying on the Ninth Circuit's decision in Quinn, the U.S. District Court for the District of New Jersey recently held that “the opponent of the proposed expert testimony must demonstrate a prima facie case of unreliability before an evidentiary hearing is required.” Lanni v. State of New Jersey, 177 F.R.D. 295, 303 (D.N.J.1998). It reasoned that such a hearing was not required under Daubert and “would cause unnecessary expense and delay.” Id. FN13. See also, Hoult v. Hoult, 57 F.3d 1, 4-5 (1st Cir.1995) (rejecting a defendant's argument that Daubert required the trial court to make a sua sponte, on-the-record ruling on the admissibility of expert testimony each time it is proffered, and declining to “shackle the district court with a mandatory and explicit reliability analysis,” instead assuming that the trial court performs such an analysis sub silentio throughout the trial with respect to all expert testimony). But see, Gruca v. Alpha Therapeutic Corp., 51 F.3d 638, 643 (7th Cir.1995) (holding that the lower court “abdicated its responsibility under Rule 104(a) by failing to conduct a preliminary assessment of the admissibility of the plaintiff's expert testimony” before permitting the plaintiff's expert to testify, where the trial court expressly declined to rule on the defendant's challenge to the admissibility of such testimony, and instead directed a verdict in favor of defendants); State v. Quattrocchi, 681 A.2d 879, 884 (R.I.1996) (stating that a preliminary examination out of the presence of the jury is necessary in cases involving scientific evidence about repressed memories, if such evidence is challenged).

[¶ 85.] Recently the United States Supreme Court, in ruling that the Daubert reliability factors FN14 are non-exclusive, granted a trial court wide latitude in determining how to test an expert's reliability. It stated: FN14. The Supreme Court in Daubert set forth a list of factors which a trial court should consider when making a reliability determination: (1) whether the theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) the general acceptance of the theory in the scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97, 125 L.Ed.2d at 482-83. The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether that expert's relevant testimony is reliable. Our opinion in Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) makes clear that a court of appeals is to apply an abuse-of-discretion standard when it “review

[s] a trial court's decision to admit or exclude expert testimony.” 522 U.S. at 138-139, 118 S.Ct. 512. That standard applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion. Otherwise, the trial judge would lack the discretionary authority needed both to avoid unnecessary “reliability” proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises. Indeed, the Rules seek to avoid “unjustifiable expense and delay” as part of their search for “truth” and the “jus

[t] determin

[ation]” of proceedings. Fed. Rule Evid. 102. Kumho Tire Co., Ltd., v. Carmichael, 526 U.S. 137, 152-53, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238, 252-53 (1999) (emphasis in original).

[¶ 86.] We therefore disagree with Moeller's contention that a Daubert hearing for Wehrenberg's testimony was necessary. First, we note that the challenged evidence did not present any new scientific theory, and the methodologies were neither complex nor unusual. McVeigh, 955 F.Supp. at 1279. It is a well-established principle in the field of mineralogy that a visual analysis is an accepted method of identifying minerals. A mineralogist first uses visual inspection in studying minerals. Only when that method fails to identify a mineral should other tests be made. Edward Salisbury Dana, Minerals and How to Study Them 7-8, (Cornelius S. Hurlbut, Jr. rev., 3rdEd. 1962) See also, Richard M. Pearl, Gems, Minerals, Crystals and Ores 32, 49-50 (1964) (stating that there are many ways to identify minerals, depending on the observer's degree of skill; one begins by analyzing key properties such as luster, color, streak, cleavage, fracture, hardness, magnetism, and specific gravity).

[¶ 87.] Moreover, there is no evidence in the record that Wehrenberg's methodology or analysis was so skewed as to alter the otherwise reliable scientific method. “An allegation of failure to properly apply a scientific principle should provide the basis for exclusion of an expert opinion only if ‘a reliable methodology was so altered ... as to skew the methodology itself.’ ” Beasley, 102 F.3d at 1448 (quoting Martinez, 3 F.3d at 1198) (other citations omitted).

[¶ 88.] Because the trial court could have properly concluded that a “reliability” proceeding outside the presence of a jury was unnecessary, we find no abuse of discretion in denying Moeller's motion for a Daubert hearing as to the admissibility of Wehrenberg's testimony.

ISSUE 7.

[¶ 89.] The trial court did not abuse its discretion in denying Moeller's motion in limine regarding a forensic pathologist's report.

Facts

[¶ 90.] When Moeller was arrested in 1990, a folding knife with a three-inch blade was found among his possessions in his vehicle. The knife was analyzed by State, but determined to be unhelpful. It was subsequently placed in an evidence locker and not used as evidence at the first trial.

[¶ 91.] Prior to the second trial, State began reviewing all evidence and re-discovered the knife. It was sent to Dr. Brad Randall, a forensic pathologist, who examined it on April 8, 1997. He submitted a report to State dated April 15, 1997, wherein he concluded that the knife was not inconsistent with the wounds on Becky's body. He further concluded that “the characteristics of the stab wounds were consistent with having been inflicted by a knife with a single sharp edge and a blade thickness comparable to that of the subject knife.” However, the injuries could only be attributed to a class of knives “rather than any specific distinguishing features which would point to a definitive identity between the knife and the inflicted wounds.”

[¶ 92.] The defense filed a motion in limine seeking to suppress the introduction of Randall's report. Following a hearing, the trial court denied defendant's motion. Randall's report was admitted at trial, and he was allowed to testify regarding his conclusions. Moeller's counsel cross-examined him and called its own expert witness to refute Randall's conclusions.

[¶ 93.] On appeal, Moeller argues that because there was no forensic evidence tending to connect the knife to the crime, Randall's opinion was more prejudicial than probative and should have been excluded. He further contends the report was untimely offered and therefore should have been excluded. We disagree.

Decision

[¶ 94.] SDCL 19-15-2 guides us on the admission of expert testimony. It requires that such testimony “assist the trier of fact to understand the evidence or to determine a fact in issue.” SDCL 19-15-2; Moeller I, 1996 SD 60, ¶ 88, 548 N.W.2d at 485. “ ‘Any fact that tends to connect an accused with the commission of a crime is relevant and has probative value.’ ” Moeller I, 1996 SD 60, ¶ 88, 548 N.W.2d at 486 (quoting State v. Johnson, 316 N.W.2d 652, 654 (S.D.1982) (other citations omitted)). Although relevant, expert testimony may be excluded if it is more prejudicial than probative. SDCL 19-12-3. To warrant exclusion, the evidence must show “unfair prejudice.” State v. Wright, 1999 SD 50, ¶ 16, 593 N.W.2d 792, 799. “Unfair prejudice is associated with ‘facts that arouse the jury's hostility or sympathy for one side without regard to the probative value of the evidence.’ ” Moeller I, 1996 SD 60, ¶ 92, 548 N.W.2d at 486 (citation omitted).

[¶ 95.] A review of the record shows that while Randall's report could not definitively link Moeller to the crime, it was another piece of the circumstantial case that tended to connect him to the crime. See Moeller I, 1996 SD 60, ¶ 89, 548 N.W.2d at 486. Moeller's assertion, that an expert's testimony is not legally probative if it is based upon a mere possibility, is without merit. Such arguments go to the weight of the evidence, not its admissibility.

[¶ 96.] We cannot accept Moeller's argument that Randall's testimony in the second trial went far beyond his testimony in the first trial. First, State is not limited to evidence presented in the first trial. Next, Randall was not given the opportunity in the first trial to examine the knife and testify regarding his opinion whether it could have inflicted the wounds. It was not error to allow Randall to examine and opine about the knife.

[¶ 97.] Nor do we find reversible error in the fact that Randall's report was submitted after jury selection had commenced. As stated previously in regard to Dr. Wehrenberg's soil report, we do not equate late disclosure with suppression, especially where the defense counsel made use of the information at trial. Here, the record indicates that Moeller's counsel did an admirable job of exposing the weaknesses in Randall's testimony and report.

ISSUE 8.

[¶ 98.] The trial court did not err in its jury instructions defining aggravating circumstances.

Facts

[¶ 99.] During the trial's sentencing phase, State presented evidence attempting to establish that Moeller's murder of Becky was “outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” SDCL 23A-27A-1(6). FN15 The jury returned a verdict of death by lethal injection, indicating that it found beyond a reasonable doubt that the offense involved all three factors of torture, depravity of mind, and an aggravated battery to the victim.

FN15. The statute at issue here is the 1990 version of SDCL 23A-27A-1(6), which provided in part:

[I]n all cases for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances and any of the following aggravating circumstances which may be supported by the evidence: (6) The offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. In 1995 subsection (6) was amended to add the sentence, “Any murder is wantonly vile, horrible, and inhuman if the victim is less than thirteen years of age.” 1995 S.D.Laws ch. 132.

[¶ 100.] On appeal, Moeller argues that the trial court's definition of aggravating circumstance is unconstitutionally vague because it fails to channel the jury's sentencing discretion. He claims such instructions violated the cruel and unusual punishment clause of the Eighth Amendment and the due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution, as well as the companion clauses in the South Dakota Constitution.

Decision

[¶ 101.] We review a trial court's interpretation of statutes de novo. State v. Arguello, 1996 SD 57, ¶ 10, 548 N.W.2d 463, 464. Regarding aggravating circumstances in capital murder cases, constitutional requirements are met when a trial court's instructions to the jury define and limit otherwise vague and overbroad statutory terms so as to adequately channel the jury's discretion. Moeller I, 1996 SD 60, ¶ 114, 548 N.W.2d at 491.

[¶ 102.] As we stated in Moeller I: The Eighth and Fourteenth Amendments to the United States Constitution prohibit state sentencing systems that cause the death penalty to be wantonly and freakishly imposed. If a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates standardless sentencing discretion. It must channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance, and that make rationally reviewable the process for imposing a sentence of death. “A State's definitions of its aggravating circumstances-those circumstances that make a criminal defendant ‘eligible’ for the death penalty-therefore play a significant role in channeling the sentencer's discretion.” To satisfy constitutional mandates, an aggravating circumstance must meet two basic requirements. First, it “must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Second, “the aggravating circumstance may not be unconstitutionally vague.” A challenged provision is impermissibly vague when it fails to adequately inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with open-ended discretion. Moeller I, 1996 SD 60, ¶ 111, 548 N.W.2d at 489-90 (quoting Rhines, 1996 SD 55 ¶¶ 138-40, 548 N.W.2d at 447) (citations omitted).

i. “Depravity of mind” definition.

[¶ 103.] Addressing each of Moeller's arguments in turn, we first focus on the depravity of mind instruction. He asserts that the definition of “depraved mind” (Instruction No. 8) suffers from the same unconstitutional vagueness as the instruction disapproved of in Rhines, 1996 SD 55, ¶¶ 137-148, 548 N.W.2d at 447-49. He claims that the instruction is “largely a compilation of subjective, pejorative phrases which, standing alone, or in combination, do not cure the vagueness so as to provide sufficient, objective guidance to the jury” on the meaning of the term. The instruction at issue defined depraved mind for the jury as follows:

INSTRUCTION NO. 8
The jury is instructed that in order to find that this murder involved “depravity of mind,” you must find that the defendant, in perpetrating this murder upon the victim, acted with a depraved mind. A “depraved mind” is a state of mind which is utterly corrupt, perverted or immoral. In determining whether the Defendant acted with a “depraved mind” in this case, you may consider the age and physical characteristics of the victim and you may consider the actions of the defendant before, during, and after the commission of the murder. In order to find that this offense involved depravity of mind, you must find that the Defendant, as a result of an utterly corrupt, perverted or immoral state of mind, and with an indifference to the life or suffering of the victim, committed an aggravated battery or a torture upon a living victim, or subjected the body of a deceased victim, to mutilation, serious disfigurement, or sexual abuse, or that he relished or gained a sense of pleasure from the murder. Depravity of mind requires a corrupt, perverted or immoral state of mind on the part of the Defendant in excess of what was required to accomplish the murder, so it is not enough for the state to merely show that he participated in the victim's death without more. If acts occuring

[sic] after the death of the victim are relied upon by the State to show the Defendant's depravity of mind, such acts must be shown to have occur

[r]ed so close to the time of the victim's death, and must have been of such a nature, as to satisfy you beyond a reasonable doubt, that the depraved state of mind of the Defendant existed at the time the Defendant took the actions which resulted in the death of the victim.

[¶ 104.] Here, Moeller specifically contests the phrases, (1) age and physical characteristics of the victim; (2) actions of the defendant before, during and after the commission of the murder; (3) utterly corrupt; perverted or immoral state of mind; (4) with an indifference to the life or suffering of the victim; (5) relished or gained a sense of pleasure from the murder; and (6) corrupt, perverted or immoral state of mind on the part of the defendant in excess of what was required to accomplish the murder.

[¶ 105.] In Rhines, we held a definition of depraved mind that included the phrases, “senselessness of the crime,” and “helplessness of the victim,” was unconstitutionally vague. 1996 SD 55, ¶ 145, 548 N.W.2d at 449. Since those phrases are not included in the challenged instruction, we are unclear how Rhines supports Moeller's position. We reject his argument that helplessness is implicit in the phrase “age and physical characteristic of the victim,” because the latter phrase provides a limiting description of helplessness and thereby limits the jury's otherwise open-ended discretion.

[¶ 106.] Moreover, Moeller does not direct our attention to any jurisdiction that has held such a phrase to be unconstitutionally vague. We think it is sufficiently limiting, especially when compared to other phrases that have been condemned as overly vague. See Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992) (“especially wicked, evil, atrocious or cruel”); Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (“especially heinous, atrocious, or cruel”); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (“outrageously or wantonly vile, horrible or inhuman”); Moore v. Clarke, 904 F.2d 1226 (8thCir.1990), cert. denied, Clarke v. Moore, 504 U.S. 930, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992) (“senselessness of the crime” and “helplessness of the victim”); State v. White, 395 A.2d 1082 (Del.1978) ( “elderly” and “defenselessness”).

[¶ 107.] In comparison, the United States Supreme Court approved a limiting instruction that required evidence of some kind of torture or physical abuse to define “especially heinous, atrocious or cruel” in Maynard, 486 U.S. at 364-65, 108 S.Ct. at 1859, 100 L.Ed.2d at 382. It also held that the phrase, “cold-blooded pitiless slayer” sufficiently limited “utter disregard for human life,” because it described a murderer's state of mind and was a question of fact that could be inferred from the surrounding circumstances. Arave v. Creech, 507 U.S. 463, 471-73, 113 S.Ct. 1534, 1541-42, 123 L.Ed.2d 188, 198-99 (1993). Additionally, the Georgia Supreme Court approved use of the specific phrase “age and physical characteristics of the victim,” as a limiting instruction for “depraved mind” in West v. State, 252 Ga. 156, 313 S.E.2d 67 (1984). When compared to other challenged phrases, we do not think “age and physical characteristics of the victim” is overly broad in defining depravity of mind.

[¶ 108.] For the foregoing reasons we also reject Moeller's other contentions of vagueness regarding depravity of mind. We note that the phrase “actions of the defendant prior to and after the commission of the murder,” was approved by the Georgia Supreme Court in West, 313 S.E.2d at 71. We agree.

[¶ 109.] Phrases nearly identical to “with an indifference to the life or suffering of the victim” and “relished or gained a sense of pleasure from the murder” were approved by the United States Supreme Court in Walton v. Arizona, 497 U.S. 639, 655, 110 S.Ct. 3047, 3058, 111 L.Ed.2d 511, 529 (1990) (refusing to fault state's limiting instruction for “depraved manner” which included the phrases “relishes the murder, evidencing debasement or perversion,” or “shows an indifference to the suffering of the victim and evidences a sense of pleasure” in the killing). The phrases used in the limiting instructions in the instant case are so similar to those approved in Walton as to furnish sufficient guidance to the jury.

[¶ 110.] Finally, use of the words “corrupt, perverted or immoral” in the instruction are not overly vague. As we stated in State v. Bullis: “Unless words of such seeming generality as ‘moral’ and ‘immoral’ were valid in statutes

[or jury instructions], government itself would become impossible.” 89 S.D. 212, 214, 231 N.W.2d 851, 852 (1975) (citation omitted). In that case we additionally held that the use of the word “corrupt” was not so vague as to violate a criminal defendant's right to due process. Id. at 214-15, 231 N.W.2d at 852. The word “perversion,” a variant of “perverted” was also approved as adequately narrowing a depraved mental state in Walton, 497 U.S. at 655, 110 S.Ct. at 3058, 111 L.Ed.2d at 529 and in Arave, 507 U.S. at 473-74, 113 S.Ct. at 1542, 123 L.Ed.2d at 199-200.

[¶ 111.] When viewed in its entirety, the depraved mind instruction significantly limited the number of convicted murders eligible for the death penalty and provided specific guidance to the jury. It is not unconstitutionally vague.

ii. “Torture” definition.

[¶ 112.] Moeller next claims that the definition of “torture” (Instruction No. 7) does not meet the narrowing requirements of Godfrey, 446 U.S. at 428, 100 S.Ct. at 1764-65, 64 L.Ed.2d at 406, because nearly all murders, except those involving instantaneous death or unconsciousness, would meet the trial court's definition.

[¶ 113.] Jury instruction number 7 defining torture provided:

INSTRUCTION NO. 7
The jury is instructed that in order to find that this murder involved “torture,” you must find, that while the victim was still alive and conscious, the defendant intentionally inflicted severe, unnecessary, physical or mental pain, agony, or anguish, upon her. This could include the victim's severe mental anguish in anticipation of serious physical harm. Unnecessary pain, agony or anguish requires suffering on the part of the victim, in excess of what was required to accomplish the murder, so it does not include any physical or mental pain, agony or anguish which reasonably resulted from the victim's death or her brief anticipation of death. Acts committed after the victim's death or while she was no longer conscious, may not be considered in determining whether “torture” was involved.

[¶ 114.] In Rhines, we considered and approved an instruction on “torture” substantially identical to the one presented here. There the instruction stated: Torture occurs when a living person is subjected to the unnecessary and wanton infliction of severe physical or mental pain, agony, or anguish. Besides serious abuse, torture includes serious psychological abuse of a victim resulting in severe mental anguish to the victim in anticipation of serious physical harm. You would not be authorized to find that the offense of First Degree Murder involved torture simply because the victim suffered pain or briefly anticipated the prospect of death. Nor would acts committed upon the body of a deceased victim support a finding of torture. In order to find that the offense of First Degree Murder involved torture, you must find that the Defendant intentionally, unnecessarily, and wantonly inflicted severe physical or mental pain, agony or anguish upon a living victim. 1996 SD 55, ¶ 160, 548 N.W.2d at 451-52.

[¶ 115.] We noted in Rhines that the torture instruction included two essential limiting elements for a finding of torture: (1) the unnecessary and wanton infliction of severe pain, agony, or anguish; and (2) the intent to inflict such pain, agony, or anguish. Id. ¶ 161, 548 N.W.2d at 452. We held that such an instruction was proper because it eliminated from the pool of death-eligible murderers those who intended to kill their victims painlessly or instantly or who only intended to cause pain that was incident to death. Id.

[¶ 116.] The challenged jury instruction in the instant case similarly contained both requisite elements for a proper torture instruction. Moreover, it “required the jury to make precise factual inquiries regarding the nature of the victim's injuries and the defendant's intent.” Moeller I, 1996 SD 60, ¶ 117, 548 N.W.2d at 492. The instruction is not overly vague or otherwise constitutionally infirm.

iii. “Aggravated battery” definition.

[¶ 117.] Moeller also reiterates his arguments in Moeller I, 1996 SD 60, ¶ 113, 548 N.W.2d at 490, that the definition of “aggravated battery” (Instruction 9) did not sufficiently channel the jury's discretion. Alternatively, he argues that if the “aggravated battery” instruction is constitutional, there is insufficient evidence to support a finding that the victim suffered either “torture” or an “aggravated battery” as they are defined, because the extent of physical pain and injuries suffered while she was alive or conscious is unknown.

[¶ 118.] The definition of aggravated battery given to the jury was as follows:

INSTRUCTION NO. 9
The jury is instructed that in order to find that this murder involved an “aggravated battery to the victim,” you must find that the victim in this case suffered an aggravated battery to her person, which was inflicted by the defendant; that the aggravated battery involved the infliction of serious physical abuse upon the victim, by depriving her of a member of her body, by rendering a member of her body useless, or by seriously disfiguring her body or a part of her body; and that the defendant at the time that he inflicted this aggravated battery upon the victim, had the specific intention, design or purpose of maliciously inflicting unnecessary pain to the victim In this context as well, unnecessary pain implies suffering in excess of what was required to accomplish the murder, so it does not include physical or mental pain reasonably resulting from the victim's death or her brief anticipation of death. In determining whether an aggravated battery exists in this case, you may only consider those injuries which were inflicted upon the victim prior to her death. You may not consider those injuries which actually caused the death of the victim. Only those injuries which did not cause the victim's death may be considered by you in determining whether there was an aggravated assault upon the victim.

[¶ 119.] Because the challenged instruction met the requirements of specificity and sufficiently channeled the jury's discretion in rendering a sentence of death, we find no constitutional violations. Moeller I, 1996 SD 60, ¶¶ 115-17, 548 N.W.2d at 492.

[¶ 120.] Moreover, the record contains ample evidence to support a finding that the victim suffered both “torture” and an “aggravated battery” prior to her death. The autopsy showed that Becky likely died when her jugular vein was severed by a knife. There was also evidence that prior to her death she sustained numerous other knife wounds that were not incident to death. Further, the pattern of injuries indicated that Becky sustained “defense wounds” to her hands and forearms. Finally, evidence showed that she had been vaginally penetrated while she was alive, and anally penetrated after she was dead. This evidence could have reasonably led the jury to find beyond a reasonable doubt that the murder involved torture, aggravated battery, or a depraved mind.

[¶ 121.] The sentence will not be set aside, because the evidence and all favorable inferences that can be drawn from it support a rational theory of guilt. Rhines, 1996 SD 55, ¶ 157, 548 N.W.2d at 451 (citations omitted).

ISSUE 9.

[¶ 122.] The trial court's definition of SDCL 23A-27A-1(6), which differed from that given in Moeller I, did not violate the double jeopardy or ex post facto provisions of the United States and South Dakota Constitutions.

Facts

[¶ 123.] At the sentencing phase of the first trial, the court instructed the jury regarding “outrageously or wantonly vile, horrible or inhuman” as follows: The term “aggravated battery” as used in these instructions, is defined as the infliction of serious physical abuse upon the victim, by depriving him of a member of his body, or by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof. The State has alleged as an aggravating circumstance in this case that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved an aggravated battery to the victim. The State has the burden to prove, beyond a reasonable doubt, the existence of this aggravating circumstance. Before you may find that this aggravating circumstance exists in this case, you must find, beyond a reasonable doubt, that each of the following elements of this aggravating circumstance are proven by the evidence: (1) That the victim suffered an aggravated battery to his person, inflicted by the defendant. (2) That the defendant, at the time that he inflicted the aggravated battery upon the victim, had the specific intention, design or purpose of maliciously inflicting unnecessary pain to the victim. Unless the jury finds that each of the above two elements has been proven by the evidence, beyond a reasonable doubt, then you must give the defendant the benefit of the doubt and find that this aggravating circumstance does not exist. 1996 SD 60, ¶ 112, 548 N.W.2d at 490-91. We noted in footnote 9 of that opinion that “

[t]he trial court also provided a definition of ‘torture’ and ‘depravity of mind’ for the jury. However, we read the jury instructions as alleging only an ‘aggravated battery’ and therefore confine

[d] our review to the definition of that term.” Id. ¶ 112 n. 9, 548 N.W.2d at 491 n. 9.

[¶ 124.] In the second trial, the court initially instructed the jury as follows:

INSTRUCTION NO. 6
The State has alleged as an aggravating circumstance in this case that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim. The State has the burden to prove, beyond a reasonable doubt, the existence of this aggravating circumstance. Before you may find that this aggravating circumstance exists in this case, you must find, beyond a reasonable doubt, that the following elements of this aggravating circumstance are proven by the evidence: (1) That the murder in this case was outrageously or wantonly vile, horrible or inhuman in that it involved at least one of the following factors: (a) torture; or (b) depravity of mind; or (c) an aggravated battery to the victim. Unless the jury finds that this element has been proven by the evidence, beyond a reasonable doubt, you must give the defendant the benefit of the doubt and find that this aggravating circumstance does not exist. Unless you find that at least one of the three alternatives set out above, have

[sic] been proven by the evidence, beyond a reasonable doubt, you must give the defendant the benefit of the doubt and find that the aggravating circumstance does not exist. Your verdict form should specify which, if any, of these alternatives you find were involved in the murder. This instruction was followed by the instructions that further defined “torture,” “depravity of mind,” and “aggravated battery” discussed in Issue 8, supra.

[¶ 125.] On appeal, Moeller asserts that the trial court impermissibly expanded the factors under which he could be found death-eligible. He argues that in the first trial, the only aggravating factor presented was aggravated battery, whereas in the second trial the jury was presented with all three aggravating factors (torture, depravity of mind and aggravated battery). He contends that including the other two factors for consideration at the second trial broadened the law and violated the double jeopardy and ex post facto clauses of the United States and South Dakota Constitutions.

Decision

[¶ 126.] Moeller presents three rationales to support his argument. First, he asserts a lesser-included offense rationale, wherein he claims that:

[T]he court's instruction in the first trial could be classified as a lesser included offense when compared to the court's instruction in the second trial. It was error for the trial judge in the second trial to add elements to the statutory aggravating factor. Defendant had already been convicted on aggravated battery alone, which under the lesser included offense rationale, prohibits a retrial on the greater offense; and secondly, because the jury in the second trial could now use any one of the three elements, as opposed to just one, to find that State proved the aggravating factor, Defendant was subject to exposure to a greater offense.

[¶ 127.] Secondly, Moeller proffers an implicit acquittal rationale. That argument surmises that since the evidence at the first trial was apparently insufficient to persuade the trial judge that he should instruct on torture and depraved mind, the defendant was implicitly acquitted of such aggravating factors. Therefore, Moeller contends, it was error to give them to the jury as separate aggravating factors at the second trial.

[¶ 128.] Moeller's third argument is based on the ex post facto provisions of the United States and South Dakota Constitutions. U.S.Const. art. I, § 10; S.D.Const. art. VI, § 12. He argues that because a trial court is in effect making the law when it issues narrowing instructions, it must also comply with the ex post facto requirement. He asserts that here, when the trial court expanded the aggravated factors from one to three in the second trial, he faced a more encompassing and broader statute than in his first trial. Thus, he contends an ex post facto violation occurred.

[¶ 129.] Moeller offers no authority for such unconventional arguments. An argument not supported by authority could be deemed waived. State v. Pellegrino, 1998 SD 39, ¶ 22, 577 N.W.2d 590, 599.

[¶ 130.] Additionally, these arguments are wholly without merit. Their primary fault is that they assume the first trial court deliberately refused to include torture and depraved mind as aggravating factors. However, as we noted in Moeller I, the trial court did include instructions to the jury on those two factors. It is unclear why it failed to include them for consideration as aggravating factors along with aggravated battery. From the information in the record, we simply cannot presuppose the reasoning behind the first trial's instructions, whether their design was intended or inadvertent. See also Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986) (stating that double jeopardy clause does not apply to sentencing phase of capital murder case, at which the “clean slate” rule applied).

[¶ 131.] All these arguments are clearly contrary to the explicit terms of SDCL 23A-27A-1(6), which disjunctively sets forth the three factors: “The offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” (emphasis added). Irrespective of the first trial court's rationale for instructing as it did, we see no error in the second trial judge setting forth all three aggravating factors of torture, depraved mind and aggravated battery for the jury to consider.

ISSUE 10.

[¶ 132.] The trial court did not abuse its discretion in refusing Moeller's proposed jury instructions regarding mitigating factors.

Facts

[¶ 133.] Prior to the sentencing phase, Moeller submitted a proposed jury instruction specifying a list of possible mitigating factors for the jury to take into consideration while deliberating a sentence. It provided: If you find that there exists at least one circumstance, you should then consider and take into consideration any mitigating circumstances that exist. You shall consider, take into account, and be guided by the following circumstances, if applicable: 1. Mr. Moeller is poor. 2. Grew up without his natural father. 3. Mother's death in 1990. 4. Disagreements in the evidence on how DNA/serologic evidence should be interpreted. 5. Unwavering declaration of innocence. 6. Mr. Moeller's abuse of alcohol. 7. Mr. Moeller's behavior throughout trial was good. 8. Intelligent. 9. Non-applicability of all other statutory aggravating circumstances. 10. Family loves him. 11. Continued contact with and concern for family. 12. Difficult background. 13. Effect of execution on others. 14. Life without the possibility of parole is the alternative sentence. 15. Mr. Moeller is a human being. 16. Residual doubt. 17. The DNA evidence from a female on Rebecca's inner left thigh. All or any one of the above may be mitigating circumstances. However, in determining whether or not mitigating circumstances exist, you should consider any other circumstances not listed herein which mitigate the gravity of the crime even though it is not a legal excuse for the crime.

[¶ 134.] The court rejected the instruction, stating “I've instructed on the mitigating circumstances and that the jury is to take into consideration any and all mitigating circumstances offered. It seems to me if the Court was to instruct on a particular list of mitigating circumstances that that really gets into the Court commenting on the evidence in this case.”

[¶ 135.] A related discussion also ensued between the parties regarding the extent to which State would be allowed to rebut mitigation evidence presented by Moeller. State contended that although it acknowledged being limited to arguing only statutorily enumerated aggravating factors in its case-in-chief, it should additionally be allowed to rebut any mitigating evidence presented by Moeller. The court agreed, stating that “

[it] would be ... inherently unfair to allow the defense to put in unrebuttable mitigating evidence. Then there would be no checks or balances in any way on the defendants and would ... be able to completely misrepresent himself to the jury and that ... would allow a defendant to portray himself in completely inaccurate light to the jury.”

[¶ 136.] In response to Moeller's concerns that State might, in its rebuttal, open the door beyond the initial scope of the mitigating evidence, the court first noted that such speculation and abstract questions were difficult to rule on in advance. The court then stated that it was going to strictly require that any rebuttal testimony would have to directly and narrowly rebut the defense evidence. The judge indicated he was not going to offer as much latitude as he would normally give in rebuttal. He further stated that any questionable rebuttal testimony would first be heard outside the presence of the jury.

[¶ 137.] Moeller argues that the trial court violated his constitutional right to due process and right against cruel and unusual punishment by refusing to instruct the jury on specific mitigating factors. He further argues that his constitutional rights were violated by ruling that State was allowed to present rebuttal in the form of “anti-mitigation” evidence at the penalty phase.

Decision

[¶ 138.] We first consider Moeller's argument, that the trial court violated his constitutional right to due process and right against cruel and unusual punishment by refusing to instruct the jury on specific mitigating factors. In stark contrast to his assertion, the United States Supreme Court recently held that any instruction regarding mitigation evidence is not constitutionally required. Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998). In that case the defendant requested the jury be instructed as to four statutorily prescribed mitigating factors which were argued during the sentencing phase. The state court denied such an instruction, and that denial became the basis of a habeas petition.

[¶ 139.] In affirming the court of appeals' denial of the habeas petition, the Supreme Court differentiated the constitutional treatment accorded the two aspects of a capital sentencing procedure. According to the Court, first, in the eligibility phase, the jury narrows the class of defendants eligible for the death penalty, often through the consideration of aggravating circumstances. At this point the Court stressed the need for channeling and limiting the jury's discretion. 522 U.S. at 275-76, 118 S.Ct. at 761-62, 139 L.Ed.2d at 709-10. In contrast, during the selection phase, the jury determines whether to impose a death sentence on an eligible defendant. Here the Court emphasized the need for a broad inquiry into all relevant mitigating evidence in order to allow an individualized determination. Id. Under this view of the capital sentencing process, the Buchanan Court concluded that a mandatory instruction on mitigation was not constitutionally required.

[¶ 140.] Reviewing the jury instructions as a whole, we find no abuse of discretion. We agree with the trial judge that giving a specific list of mitigating factors would have improperly instructed the jury. A specific list of mitigating factors might have sent a message to the jury that it could only consider those factors included in the instruction. This would have improperly limited its range of consideration in violation of SDCL 23A-27A-1 and 3. Moreover, as the trial court stated, a specific list might have been perceived by the jury as a comment on the propriety of the evidence presented. This, too, would have been improper.

[¶ 141.] We similarly reject Moeller's second argument, that his constitutional rights were violated by ruling that State was allowed to present rebuttal in the form of “anti-mitigation” evidence at the penalty phase. In support of his position, he specifically claims that the court's refusal to rule in advance on whether it would allow State to rebut his mitigation evidence prevented him from submitting evidence of certain mitigation factors listed in the instruction. According to Moeller, his counsel did not want to risk “opening the door” on certain character evidence which the State vowed it would bring in. Moreover, he contends that nothing in the statutes permit open-ended rebuttal, or anti-mitigation, evidence as suggested by State.

[¶ 142.] Moeller's position is without merit. We agree with the trial court that to foreclose the opportunity for State to rebut any mitigation evidence would allow Moeller to be inaccurately portrayed to the jury. To do so would be inherently unfair and would emasculate a basic tenet underlying our adversary system of justice. Whether Moeller decided to put on mitigating evidence was a tactical decision, which would have of course been subject to attack on rebuttal. As the California Supreme Court stated in this regard: Even if we somehow assume additional mitigating evidence existed, counsel did not necessarily have to present it. As always, counsel had to consider the possible detriment as well as the benefit. Presenting mitigating evidence risks opening the door to rebuttal evidence. The prosecution may rebut mitigating penalty evidence with unfavorable revelations about the defendant. In rebuttal, the prosecution is bound neither by its statutory pretrial notice of aggravating evidence nor by the aggravating factors set forth in the statute. The possibility of damaging rebuttal is a necessary consideration in counsel's decision whether to present mitigating evidence about the defendant's character and background. People v. Freeman, 8 Cal.4th 450, 34 Cal.Rptr.2d 558, 882 P.2d 249, 286 (1994) (citations omitted).

ISSUE 11.

[¶ 143.] The trial court did not abuse its discretion in refusing Moeller's proposed jury instruction regarding life imprisonment, in refusing State's proposed jury instruction regarding the Governor's authority to commute a life sentence, nor in its response to a question from the jury regarding the definition of life imprisonment.

Facts

[¶ 144.] Prior to the sentencing phase, both sides sought to include divergent instructions regarding life imprisonment. Moeller sought to include the following instruction to the jury: “You are to assume that if you sentence Donald Moeller to life imprisonment, he will spend the rest of his life in prison.” In response, State filed a motion seeking to instruct the jury on the Governor's authority to commute a life sentence.

[¶ 145.] A hearing was held on State's motion, at which it argued if the jury was to be told that “life means life,” then it should also be given the counterbalancing information about the potential for a life sentence to be commuted. Moeller responded with the argument that the commutation authority was purely discretionary and too speculative to be given to the jury. After hearing arguments, the court denied State's motion, stating: It seems as to me

[sic] the possibility of a commutation, that's too remote or speculative for the jury to be instructed on that. However, following if the defense brings that

[life means life] up or makes the kind of argument I indicated which could in any way indicate that there are no ways that therefore the defendant could be released, that that would open it up. But unless it's opened up in that fashion by the defense I will not allow either an instruction or argument dealing with the Governor's authority to commute life sentences.

[¶ 146.] Later the trial court denied Moeller's proposed jury instruction, reasoning: The instructions dealing with, in fact, what the actual result of the sentence will be is basically, you know, nobody knows what the future will bring. I refused the State's request to instruct about the Governor's authority to commute sentence. I think likewise to instruct them, which this really does, that the sentence would never be commuted, also would involve me commenting or instructing on these things that I don't know about. Accordingly, the jury was not given any information about the Governor's authority to commute a life sentence, nor was it instructed that “life means life.”

[¶ 147.] The instructions provided to the jury used “life imprisonment,” “life sentence,” “life in the penitentiary” and “life imprisonment without parole” interchangeably. The verdict form used the term “life imprisonment without parole.” During deliberations, the jury foreman sent a note to the court asking: “If the penalty of ‘life imprisonment without parole’ should be imposed upon the defendant, will he EVER have a chance to appear before a parole board?” (emphasis in original).

[¶ 148.] After hearing arguments from counsel, and over the objections of defense counsel, the trial court decided to respond to the jury's question with this statement: “We acknowledge your note asking questions about life imprisonment without parole. All of the information which I can give you is set forth in the jury instructions.” That response was sent back in to the jury, which returned a sentence of death the following morning.

[¶ 149.] On appeal, Moeller challenges the denial of his “life means life” jury instruction, as well as the court's response to the jury's question. By notice of review, State raises the issue of whether it was error not to instruct the jury on the Governor's commutation authority.

Decision

[¶ 150.] SDCL 23A-27A-4 provides in part that “

[i]f a sentence of death is not recommended by the jury, the court shall sentence the defendant to life imprisonment.” SDCL 24-15-4 further states that “

[a] person sentenced to life imprisonment is not eligible for parole by the board of pardons and paroles.” However, “

[t]he Governor may ... grant pardons, commutations, and reprieves ...” S.D.Const. art. IV, § 3.

[¶ 151.] In Rhines, we held there to be no abuse of discretion in the trial court's rejection of the defendant's following proposed instruction: The two specified sentences that you are to consider in this case are death, and life in prison without parole. In your deliberations, you are to presume that if you sentence Charles Russell Rhines to death, he will in fact be executed by lethal injection. You must not assume or speculate that the courts, or any other agency of government, will stop the defendant's execution from taking place. Similarly, you are to presume that if you sentence Charles Russell Rhines to life in prison without parole, he will in fact spend the rest of his natural life in prison. You must not assume or speculate that the courts, or any other agency of government, will release the defendant from prison at any time during his life. 1996 SD 55, ¶ 121, 548 N.W.2d at 444.

[¶ 152.] Like the instant case, the Rhines jury sent a note out to the court during deliberations asking whether the defendant could ever be placed in a minimum security prison or given work release. Based on these questions from the jury, Rhines argued on appeal that the note demonstrated the inadequacy of the trial court's instructions, and that the jury was unduly concerned he would be released if he received a life sentence. We rejected this argument, instead concluding that the instructions as a whole “gave a full and correct statement of the law.” Id. ¶ 124, 548 N.W.2d at 444. Further, we found no error in the trial court's response to the jury question, which stated, “I acknowledge your note asking questions about life imprisonment. All the information I can give you is set forth in the jury instructions.” Id. ¶ 104, 548 N.W.2d at 442.

[¶ 153.] In Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), the United States Supreme Court addressed the propriety of including the possibility of parole in jury instructions. In that case the defendant was ineligible for parole because of prior convictions. However, the state argued to the jury that his future dangerousness was a factor to consider when deciding whether to impose life or death. The defendant was not allowed to instruct the jury as to his ineligibility for parole. During deliberations, the jury sent out a note asking whether life imprisonment carried the possibility of parole. The court responded by telling the jury not to consider parole when reaching its verdict and that the terms death sentence and life imprisonment were to be interpreted according to their ordinary and everyday meanings.

[¶ 154.] The Supreme Court reversed the sentence. A plurality of the Court held that where a defendant's future dangerousness had been put at issue by the state, and the defendant was ineligible for parole, the jury was entitled to be so instructed. Id. at 168-69, 114 S.Ct. at 2196, 129 L.Ed.2d at 145-46.

[¶ 155.] Simmons is distinguishable from the situation presented here. First, we note that future dangerousness was not specifically raised as a concern by State. We further note that while not explicitly instructed that “life means life,” the jury here was informed that a sentence of life imprisonment was “life imprisonment without parole.” Indeed, those were the very words used on the sentence verdict form.

[¶ 156.] Given our previous holding in Rhines, and considering the fact that the jury was instructed as to “life imprisonment without parole,” we see no abuse of discretion in the trial court's rejection of Moeller's additional instruction to that effect. The instructions were an accurate and complete reflection of the law. Further, we find no error in the court's response to the jury's question concerning life without parole. The court acknowledged patterning its response after the Rhines court's response, which was met with approval in this Court. Asking the jury to refer back to the instructions as given was a proper reply, as the instructions correctly set forth the law. See Weeks v. Angelone, 528 U.S. 225, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (holding that the Constitution is not violated where, in response to a jury question, the trial court refers the jury to constitutionally adequate instructions).

[¶ 157.] Nor do we accept State's argument that the jury should have been instructed about the Governor's authority to commute a life sentence. In support of this decision we rely on the United States Supreme Court's decision in California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).

[¶ 158.] In that case, the United States Supreme Court addressed the constitutionality of a state statute requiring judges to instruct juries about the Governor's authority to commute a sentence. The Court held there to be no constitutional barrier to the state legislature's decision to impose such an instruction on juries. It opined that such an instruction did not preclude individualized sentencing determinations or consideration of mitigating factors, nor did it inject an impermissibly speculative element for the jury's determination. Notably, the majority opinion concluded with the remark that its decision was not intended to override the contrary judgment of states that capital sentencing juries should not be permitted to consider the gubernatorial power to commute a sentence. Id. at 1013, 103 S.Ct. at 3460, 77 L.Ed.2d at 1188. In essence, finding no constitutional infirmity, the Court deferred to the decision of the California state legislature.

[¶ 159.] The Ramos Court was split 5-4, and the dissenting Justices filed persuasive opinions. As to the merits of a commutation instruction, Justice Marshall contended that it was misleading, speculative and unrelated to the defendant's character or the circumstances of the crime. Id. at 1016-22, 103 S.Ct. at 3461-65, 77 L.Ed.2d at 1190-94. In support of his position, he noted that the overwhelming majority of states rejected arguments or instructions concerning commutation to a sentencing jury. See id. at 1026 n. 13, 103 S.Ct. at 3466 n. 13, 77 L.Ed.2d at 1197 n. 13 (citing cases from jurisdictions holding that the jury should not consider the possibility of pardon, parole, or commutation). In addition, Justice Stevens noted in a separate dissenting opinion that California was the only state to have enacted such a statute. Id. at 1029, 103 S.Ct. at 3468, 77 L.Ed.2d at 1199.

[¶ 160.] We choose to align ourselves with the holding of the majority of the other jurisdictions that have addressed this issue. Ramos can and must be distinguished from the present case, because unlike California, our legislature has not mandated that a commutation instruction should be included.

[¶ 161.] If a court were to include an instruction that the Governor can commute a life sentence to a term of years then, in order to preclude misleading the jury, it would also need to include an instruction that a death sentence is equally eligible for commutation. After all, under our statutory scheme, that scenario is just as plausible as the commutation of a life sentence. The conjectures about what might happen in the future, depending on the Governor and his or her views on the death penalty, are simply too speculative to include in jury instructions. Such instructions are supposed to provide guidance, not invite guesswork. Furthermore, such an instruction is not sufficiently tailored to the individual characteristics and circumstances of the crime. Rather, it is a generic source of rumination, not one that pertains to the unique individuals or circumstances of each case.

ISSUE 12.

[¶ 162.] Based upon the appellate review mandated by SDCL 23A-27A-12, Moeller's sentence of death was lawfully imposed.

[¶ 163.] In every case where the death penalty is imposed, this Court is required to conduct an independent review of the sentence. SDCL 23A-27A-9. We must determine: (1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (2) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in § 23A-27A-1; and (3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. SDCL 23A-27A-12.

[¶ 164.] We begin our review by determining whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. We find none. We have rejected Moeller's claims that he was prejudiced by the admission of late reports by the soil expert and the pathologist. We dispelled his contention that he should have been given additional time to prepare for the Daubert hearing as well as the trial. We have further found no error in the selection of the jury. Nor have we found any breach of attorney-client privileges by the DNA expert who was simultaneously working for both sides. We cannot discern any extenuating circumstances that would warrant overturning the jury's verdict.

[¶ 165.] Moreover, we reject Moeller's contention that there is prohibited arbitrariness in allowing State discretion to decide in which Class A felonies to seek the death penalty. Prosecutorial discretion is a vital part of our criminal justice system. Selective enforcement of SDCL 23A-27A-1 and 22-16-4 is insufficient to show that the statutes have been unconstitutionally applied to a specific defendant, absent a showing that the particular selection was deliberately based on an unjustifiable standard such as race, religion or other arbitrary classification. State v. O'Brien, 272 N.W.2d 69, 73 (S.D.1978) (citing Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446, 453 (1962)). “

[P]rosecutorial discretion to select those eligible cases in which the death penalty will actually be sought does not in and of itself evidence an arbitrary and capricious capital punishment system or offend principles of equal protection, due process, or cruel and/or unusual punishment.” People v. Ray, 13 Cal.4th 313, 52 Cal.Rptr.2d 296, 914 P.2d 846, 874 (1996) (citations omitted).

[¶ 166.] Next, we conclude that the evidence supports the jury's finding of at least one statutory aggravating factor under SDCL 23A-27A-1. The jury determined that the murder was outrageously or wantonly vile, horrible or inhuman under SDCL 23A-27A-1(6). It found beyond a reasonable doubt evidence of three separate elements: torture, depravity of mind and an aggravated battery to the victim. There is substantial evidence in the record to support each finding. The record contains evidence that Becky likely died when her jugular vein was severed by a knife. There is also evidence that prior to her death she sustained numerous other knife wounds that were not incident to death. Further, there was evidence that the victim sustained “defense wounds” to her hands and forearms. Finally, evidence showed that the victim had been vaginally penetrated while she was alive, and anally penetrated after she was dead. Clearly this evidence shows torture, depravity of mind and aggravated battery, therefore Moeller was eligible for the death penalty.

[¶ 167.] Finally, we must consider whether Moeller's sentence is disproportionate in comparison to similar South Dakota cases. We decline Moeller's invitation to review our ruling in Rhines that the proper pool of similar cases to be considered on proportionality review includes those cases that have proceeded to death penalty deliberations. 1996 SD 55, ¶ 185, 548 N.W.2d at 455.

[¶ 168.] Since the enactment of South Dakota's current death penalty scheme, ten capital sentencing proceedings, including the present trial, have taken place. In six of those cases, the jury imposed life sentences. In Moeller I, Rhines, and State v. Robert Leroy Anderson, 2000 SD 45, 608 N.W.2d 644 McCook County Criminal No. 97-70,FN16 the jury imposed a sentence of death. We take judicial notice of the seven case summaries set forth in Rhines at 1996 SD 55, ¶¶ 187-204, 548 N.W.2d at 456-57. SDCL 19-10-2 (Rule 201(b)). Additionally, we examine the circumstances in Rhines and Anderson. FN16. This case is currently on appeal to this Court. State v. Anderson, South Dakota Supreme Court No. 21021.

[¶ 169.] According to Rhines' statements to police, he was burglarizing a store when Donnivan Schaeffer unexpectedly entered the store. Schaeffer came into the office area of the store and Rhines stabbed him in the abdomen. Schaeffer fell down, thrashed about, and screamed Rhines' name. Rhines stabbed Schaeffer again in the back, piercing his left lung. Rhines then walked Schaeffer out of the office into the storeroom. Rhines could hear air whistling out of the wound in Schaeffer's back. Rhines seated Schaeffer on a pallet in the storeroom. He placed Schaeffer's head between his knees and thrust the knife into the base of his skull. Rhines claims Schaeffer continued to breathe and his arms were moving, so he tied Schaeffer's hands behind him. Rhines estimated that Schaeffer's breathing continued for approximately two minutes after inflicting the final knife wound.

[¶ 170.] State sought the death penalty, alleging four aggravating circumstances: the murder was done for money, it was done to silence a witness, it involved torture, and it involved depravity of mind. This Court invalidated the fourth aggravating factor because of insufficient jury instructions. No mitigating circumstances were presented, but Rhines' family appeared at the sentencing phase and pleaded for his life. The jury imposed a sentence of death, and we affirmed.

[¶ 171.] In Anderson,the defendant was sentenced to death for the kidnapping, rape and murder of two young mothers. The jury found that Anderson's kidnapping and murder of Larisa Dumansky was outrageously wanton or vile, horrible or inhuman in that it involved torture or depravity of mind (SDCL 23A-27A-1(6)), and that it was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest (SDCL 23A-27A-1(9)). In addition to the previously described aggravating factors, the jury further found that Anderson raped and murdered the second mother, Piper Streyle, for his own benefit and for the purpose of receiving something of monetary value (SDCL 23A-27A-1(3)).FN17 FN17. See also State v. Anderson, 2000 SD 45, 608 N.W.2d 644.

[¶ 172.] In a comparison to the other cases in the proportionality pool, we conclude a sentence of death was not disproportionate for Donald Moeller's criminal act. First, we note that this is the only case that involves the murder of a young child. It is also distinguishable from the other cases in terms of the abuse inflicted upon Becky before and after her death. Although the two slash wounds to her neck that cut her jugular vein and her vagus nerve would have been sufficient to kill her, Moeller additionally slashed and stabbed Becky on her shoulder, chest, back, hip, arms and hands. Unlike other cases involving aggravated battery, this case is most similar in severity to Rhines in that both cases involved the infliction of knife wounds that were intended to cause injury or pain beyond that required to accomplish the murder. Indeed, the wounds suffered by Becky here were significantly more numerous than those suffered by Donnivan Schaeffer at the hands of Rhines.

[¶ 173.] Compounding the knife wounds is the fact that Becky was raped, vaginally and anally, by Moeller. The record shows that he penetrated and tore her vagina while she was alive. Even more disturbing is the fact that he anally penetrated and deposited semen inside Becky after she was dead, this evidenced by the lack of blood or bruising around the torn anus. After he abducted, raped, slashed, stabbed and then raped Becky again, he left her broken, bloody body alongside a dirt road in the rain. He offered no mitigating evidence for his actions, other than arguments regarding being dealt a “bad hand” in life, residual doubt, and the morality of the death penalty.

[¶ 174.] Although this case was proven on circumstantial evidence, that does not in any way affect the validity of the sentence. Included among the evidence linking Moeller to the crime was a showing that: (1) despite Moeller's denying that he was acquainted with Becky, one of her friends testified that Moeller occasionally bought popsicles for her and Becky; (2) an eyewitness had seen a man resembling Moeller talking to Becky near the location where she was last seen; (3) according to friends, Moeller visited the entrance to the secluded crime scene two days prior to Becky's rape and murder; (4) a vehicle similar to Moeller's was seen leaving the location where Becky's body was found at the approximated time of the crime; (5) Moeller fled to Tacoma, Washington on May 13, 1990, just one day after his initial police interview concerning Becky's death, where he lived under the fictitious name of John David Larson; (6) after Moeller fled to Washington on May 13, 1990, police searched his room and found under his bed a section of the May 13, 1990 Sioux Falls newspaper containing a composite sketch of Becky's assailant and an article discussing the crime; (7) Moeller's clothes, which would have been subjected to soil analysis, were found freshly washed in his otherwise messy, filthy room; (8) soil on Moeller's vehicle was consistent with soil from the crime scene; and (9) DNA evidence provided an estimation of how often the characteristics that were common to Moeller and the sperm found in Becky's rectum would be seen in the Causasian population; the result was 1 of every 130 million individuals.

[¶ 175.] Faced with the atrocity of the crime and the solid circumstantial case showing that Moeller was clearly culpable, we conclude the imposition of the death sentence was neither excessive nor disproportionate.

[¶ 176.] Affirmed.FN18

FN18. We have considered Moeller's other issues and find them lacking merit or resolved by our decisions in Moeller I or Rhines. Those issues include: (1) Whether the trial court abused its discretion in allowing the testimony of State's soil expert? (2) Whether allowing the trial court to channel the sentencer's discretion violates Moeller's right to fair notice under the due process and separation of powers clauses of the United States and South Dakota Constitutions? (3) Whether the trial court abused its discretion in refusing Moeller's proposed jury instructions regarding residual doubt? (4) Whether the trial court abused its discretion in allowing the prosecution to give a rebuttal argument at the sentencing phase? (5) Whether the trial court erred in admitting results of DNA DQ-alpha typing evidence? (6) Whether SDCL 23A-27A-1(6) is unconstitutionally vague and overbroad? (7) Whether the death penalty is proscribed by Article VI, § 23 of the South Dakota Constitution? (8) Whether SDCL ch 23A-27A is unconstitutional in that it provides insufficient guidance to the sentencer? We also deem it unnecessary to consider State's notice of review issue 1, and we find that notice of review issues 2 and 4 are moot. Those issues were: (1) Whether the trial court abused its discretion in allowing Moeller to present moral and religious arguments against the death penalty during closing arguments in the sentencing phase? (2) Whether it was error to grant allocution to Moeller? (4) Whether the trial court abused its discretion by allowing Moeller to depose a witness twice before trial?

KONENKAMP and GILBERTSON, Justices, and JOHNSON, Circuit Judge, concur. ]AMUNDSON, Justice, dissents. JOHNSON, Circuit Judge, sitting for SABERS, Justice, disqualified. AMUNDSON, Justice (dissenting).

[¶ 180.] I respectfully dissent as to the following issues.

[¶ 181.] 6. Whether the trial court abused its discretion in admitting a belated report by State's soil expert, and in failing to conduct a Daubert admissibility hearing on the soil expert's testimony.

[¶ 182.] In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 2794, 125 L.Ed.2d 469, 480 (1993), the United States Supreme Court established specific standards for admission of expert scientific testimony. Recently, the Daubert gate-keeping decision was expanded to apply to “ ‘technical’ and ‘other specialized’ ” expert testimony, as well as testimony from scientific experts. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238, 249 (1999) (citing Fed.R.Evid. 702). See also Estate of Dokken, 2000 SD 9, ¶ 51, 604 N.W.2d 487, 500 (Amundson, J., concurring specially) (quoting Kumho as expanding the Daubert gate-keeping function). This Court recognized in Kuper v. Lincoln-Union Electric Co., 1996 SD 145, ¶ 41, 557 N.W.2d 748, 760, that “when the trial court is ruling on the admissibility of an expert opinion, the trial court needs to exercise its gatekeeping function” to determine that the opinion has a reliable foundation and is relevant to the case at hand. To exercise its gatekeeping function, the trial court must determine both the reliability and the relevancy of the expert's testimony. See id.

[¶ 183.] In United States v. Carroll, 2000 WL 45870, *8 (E.D.La.) (quotation omitted), the United States District Court addressed the Daubert and Kumho reliability prong and noted that Kumho “does not require district courts to reinvent the wheel every time expert testimony is offered in court.” However, this does not allow the trial court to sit idly by and automatically admit an expert's testimony. As the Tenth Circuit Court of Appeals recently stated in United States v. Velarde, 214 F.3d 1204, 1209 (10th Cir.2000), “

[w]hile we recognize that the trial court is accorded great latitude in determining how to make Daubert reliability findings before admitting expert testimony, Kumho and Daubert make it clear that the court must, on the record, make some kind of reliability determination.” (Emphasis added).

[¶ 184.] In interpreting the court's reliability determination under Kumho, the court in Bacardi & Co., Ltd. v. New York Lighter Co., Inc., 2000 WL 298915, *3 (E.D.N.Y.) (quotation omitted), concluded,

[t]he fact that

[the expert witnesses] are educated and experienced in their respective fields, however, does not end the inquiry into reliability. Rather, the Court also must consider whether the experts “employ

[ ] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”

[¶ 185.] In the present case, John Wehrenberg, a retired professor of geology who specializes in forensic examinations of soils, submitted a report concluding that the soil sample taken from the left front fender of Moeller's pickup was similar to a soil sample that he took from the crime scene. The justification for Wehrenberg's determination was the existence of a mineral called “gahnite” which is a “very rare” mineral. Wehrenberg's results were not the basis of some geological forensic test, but rather, were determined by a “visual inspection.” FN19 Prior to Wehrenberg's testimony, Moeller requested a Daubert hearing to determine the reliability of Wehrenberg's reasoning and methodology in concluding that the mineral was gahnite. The trial court denied Moeller's request, concluding that based upon his qualifications and our prior decision in State v. Moeller, 1996 SD 60, ¶ 92, 548 N.W.2d 465, 486, the evidence tendered by Wehrenberg was admissible. FN20

FN19. The testimony cited in the majority decision leaves out a critical aspect of what this witness said and namely: Q. (Moeller's Attorney): When you take out the minerals that are ... common to any place east of the Rockies and one would expect to find nearly anywhere in South Dakota how many points of comparison were there that were of substantial interest to you? A. (Wehrenberg): Well, in terms of the mineral grains themselves there was, certainly with the hornblende was the significant one, the rutile, biotite, there is a mineral that I tentatively identified as gahnite which is a rather rare mineral which I found in both samples. And that, that gahnite could conceivable be an individuating mineral if I knew more about the distribution of gahnite in this region. I don't know that, though, however. (Emphasis added to depict the deleted testimony by the majority opinion.) Wehrenberg testified at the first trial that he did not know and his testimony at the second trial does not set forth any additional work done by this witness to tell this reader why he now knows. FN20. At the conclusion of the trial court hearing on the admissibility of this new insignificant opinion involving this rare mineral, the trial court held as follows: THE COURT: Okay, And I think my view of the Daubert standard is somewhat more liberal than the Frye standard under which this was admitted. I'm going to find it is admissible based upon the qualifications that he's shown and the ruling of the Supreme Court already in regard to the evidence tendered by him. In Moeller I, there was no determination under Daubert of reliability and here, there was also no reliability as to the existence of this rare mineral. Even in a capital murder case with the deplorable facts involved here, it still remains the duty of the courts to determine that testimony of paid experts is reliable and not just rely on credentials.

[¶ 186.] In concluding that no Daubert hearing was required to determine the reliability of Wehrenberg's testimony, the majority opinion would hold that because an expert says it is gahnite, it must be gahnite. It is not enough to rely on an expert's self-proclaimed determination, more is required to determine the reliability of the expert's results. See e.g., American Tourmaline Fields v. International Paper Co., 1999 WL 242690, *5 (N.D.Tex.1999) (citing Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir.1999) (noting that expert's self-proclaimed accuracy is insufficient)).

[¶ 187.] To allow an expert to testify that this rare mineral existed at the crime scene and on the defendant's wheel well without any determination as to the reliability of the expert's result, reasoning or methodology is a clear violation of the trial court's gatekeeping function. I cannot condone the acceptance of an expert's testimony based solely upon his own self-proclaimed accuracy.FN21 At the very least, a reliability determination must be made on the record to allow this Court to adequately execute its appellate role. This was not done here and I would hold that the trial court erred in refusing to hold a Daubert hearing to make such a determination. FN21. In preparing for the second trial, this expert wrote a letter on April 7, 1997, to Jeff Masten, Director of Research at RMA Research in Sioux Falls, South Dakota, making the following response to the question of “how rare is gahnite:” .... Hence, gahnite must be very rare. .... Other physical aspects of the mineral are more suggestive of gahnite than common spinel. This fuzzy response certainly does not equal reliability without further testing.

[¶ 188.] The State, in oral arguments before this Court, argued that this issue is insignificant. In a capital murder case, is anything insignificant? I would say no, especially when State hires an expert and later utilizes the evidence in its closing arguments. Any argument that this issue is insignificant is zany at best. It might have been insignificant in Moeller I in view of the fact it was not a major point, but there must have been some significance of the testimony in Moeller II-otherwise, why would this expert's testimony have focused on the rarity of gahnite in Moeller II.

[¶ 189.] 12. Whether Moeller's sentence of death was lawfully imposed.

[¶ 190.] I again adopt my dissent filed in State v. Rhines, 1996 SD 55, 548 N.W.2d 415.

[¶ 191.] This is an ominous task to undertake based upon the end result of proportionality review. In performing this statutorily mandated function, this Court has to determine whether or not the death sentence in South Dakota is being disproportionately imposed in similar cases. I submit that the awesome responsibility of this Court in performing such a review requires that we consider a much more extensive universe of cases then contained in the majority opinion. An example being, State v. VanEngel, CR91-2045, which is a case in our judicial system where the defendant was charged with the murder, kidnapping and rape of a twelve-year old Argus Leader newspaper carrier and was ultimately sentenced to life imprisonment. Therefore, in order to really determine whether the death sentence is being disproportionately applied in South Dakota, all cases eligible for the death penalty have to be reviewed to determine if the death penalty in South Dakota is being imposed fairly and uniformly and not in an arbitrary fashion.

Moeller v. Weber, 689 N.W.2d 1 (S.D. 2004). (State Habeas)

Background: Following appellate affirmance of his murder conviction and imposition of death penalty, 2000 SD 122, 616 N.W.2d 424, petitioner sought writ of habeas corpus. The Circuit Court, Second Judicial Circuit, Lincoln County, Gene Paul Kean, J., denied petition. Petitioner appealed.

Holdings: The Supreme Court, Konenkamp, J., held that: destruction of soil samples did not amount to a violation of petitioner's due process rights; (2) petitioner's due process rights were not violated by trial court's refusal to answer jury's question on meaning of “life without parole” (3) petitioner failed to establish ineffective assistance of counsel; (4) trial court acted within its discretion in admitting APO-B DNA evidence; (5) death penalty statute did not preclude exercise of prosecutorial discretion as to whether to seek death penalty sentence; and (6) federal constitution does not require that aggravating circumstances supporting imposition of death penalty be alleged in indictment. Affirmed.

KONENKAMP, Justice.

[¶ 1.] Petitioner, Donald Moeller, was tried, convicted, and sentenced to death for the rape and murder of a nine-year-old girl. He applied for a writ of habeas corpus in the circuit court. We affirm the circuit court's denial of relief.

Background

[¶ 2.] On May 8, 1990, nine-year-old Becky O'Connell was abducted after she visited a local store in Sioux Falls. Moeller had also been a customer there. After Becky left the store, a witness saw her presumably heading home. The witness also testified that he noticed Moeller moving toward Becky and Becky shying away from him. Becky never made it home. Shortly after the witness had seen Becky and Moeller, three men driving through a secluded tract south of Sioux Falls noticed a light blue pickup with South Dakota license plates leaving the area. They later described the driver of the vehicle as matching Moeller's general description.

[¶ 3.] The next day, two men discovered Becky's body south of Sioux Falls in the area the blue pickup had been seen. An autopsy revealed that Becky had been sexually assaulted and stabbed to death. Three days later, as part of the murder investigation, a police detective spoke with Moeller about Becky's disappearance. Moeller admitted owning a blue pickup truck. He denied any involvement with the disappearance and provided the detective with blood and hair samples. The following day, Moeller fled South Dakota. He left behind his ill mother and his truck. While in the State of Washington, he used at least two aliases.

[¶ 4.] On Moeller's disappearance, the police obtained a search warrant for his home. Under his bed, they discovered a section of the Sioux Falls Argus Leader containing a composite sketch of Becky's murderer and an article discussing the crime. Moeller's clothes, which would have been subject to soil analysis, were found freshly washed in his otherwise messy, filthy room.

[¶ 5.] Moeller was eventually apprehended and returned to South Dakota. On July 31, 1991, he was indicted by a Lincoln County Grand Jury on one count of first degree rape, one count of felony murder, and one count of first degree murder. The State filed a death penalty notice alleging four aggravating circumstances.

[¶ 6.] Moeller's first trial began in July 1992. On September 1, 1992, the jury returned a verdict of guilty of one count of rape in the first degree, and one count of premeditated murder in the first degree. After a presentence hearing, the jury imposed the death sentence.

[¶ 7.] The conviction was reversed on appeal and remanded for a new trial. State v. Moeller, 1996 SD 60, 548 N.W.2d 465 ( Moeller I). The same attorneys who represented Moeller in the first trial represented him in the second trial. In the second trial, the State presented testimony that Moeller had visited the entrance to the secluded crime scene two days before Becky's rape and murder. The State offered expert evidence that soil samples taken from Moeller's vehicle and the crime scene were similar. Also DNA evidence was offered relating to semen taken from Becky's body that demonstrated that the probability of a person in the Caucasian population having DNA characteristics common to Moeller's would be 1 in 130 million if the APO-B DNA analysis was not included and a 1 in 14.8 billion probability if the APO-B DNA analysis was included.

[¶ 8.] The jury convicted Moeller of rape in the first degree and murder in the first degree. After a presentencing hearing, the jury found three aggravating circumstances and imposed the death sentence. On direct appeal, we affirmed. State v. Moeller, 2000 SD 122, 616 N.W.2d 424 ( Moeller II).

[¶ 9.] On February 16, 2001, Moeller filed an application for habeas corpus. The matter was heard by Circuit Judge Gene Paul Kean of the Second Judicial Circuit. The habeas court appointed counsel to represent Moeller. Also, the court granted Moeller's request to depose the State's soil expert, obtain a new defense soil expert, and hire a new DNA expert. The habeas hearing was held on February 27, 2002. Following the hearing, Moeller requested and was granted leave to add additional claims. The habeas court issued its memorandum opinion denying relief and quashing the writ. After additional arguments and motions, the court also issued Findings of Fact and Conclusions of Law.

Analysis and Decision

[¶ 10.] Because a petition of habeas corpus collaterally attacks a final judgment, our review is limited. Hays v. Weber, 2002 SD 59, ¶ 11, 645 N.W.2d 591, 595. Habeas review is not a substitute for a direct appeal. Lien v. Class, 1998 SD 7, ¶ 10, 574 N.W.2d 601, 606. As a general matter, habeas corpus is used to review only: (1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) whether, in certain cases, a defendant was deprived of basic constitutional rights. New v. Weber, 1999 SD 125, ¶ 5, 600 N.W.2d 568, 571-72. Findings of fact are reviewed under the clearly erroneous standard. Id. Habeas corpus petitions are subject to the doctrines of res judicata and collateral estoppel. Rhines v. Weber, 2000 SD 19, ¶ 59, 608 N.W.2d 303, 316.

I.

[¶ 11.] Moeller first contends that the habeas court erred when it concluded that the trial court's decision to admit testimony concerning gahnite was not a trial error that had substantial and injurious effect on the jury's verdict and thereby deprived him of his rights to due process of law as provided by the state and federal constitutions.FN1 In essence, this claim is an attempt to revive an issue presented on direct appeal. In Moeller II, we examined whether the trial court abused its discretion in admitting a belated report by Dr. John P. Wehrenberg, the State's soil expert, and in failing to conduct a Daubert admissibility hearing on whether “Wehrenberg's testimony was scientifically valid and admissible.” 2000 SD 122, ¶¶ 71-75, 616 N.W.2d at 445-46. In affirming the trial court's decision to allow testimony concerning the presence of gahnite, we reasoned that Moeller's right to due process of law was not violated because he was “on notice” that gahnite was of “substantial interest” to the State's expert. Id. ¶ 78. Likewise, we held that Moeller's right to due process of law was not abridged by the trial court's decision to forego a Daubert hearing because the State's expert's methodology was neither complex nor novel, and because Moeller presented no evidence that the methodology was so flawed as to be unreliable. Id. ¶ 86-87. FN1. Gahnite is a rare mineral. According to Perry Rahn, Moeller's soil expert in his second trial, gahnite is less common than gold. At trial, Dr. Wehrenberg testified that he found gahnite in both the wheel well of Moeller's pickup and at the crime scene.

[¶ 12.] Moeller now challenges these decisions on two fronts. First, he alleges that Wehrenberg's conclusions were “demonstrably false.” Moeller bases his allegation on new expert testimony presented by Dr. Edward Duke who concluded that gahnite was not present in the sample tested by the State's expert. Second, Moeller alleges that because the grains identified by the State's expert as gahnite were destroyed before his second trial, he was entitled to an inference that the evidence would not support Wehrenberg's conclusions.

[¶ 13.] Duke's analysis has no effect on our earlier decision. The new evidence does not give us reason to reconsider our conclusion that the trial court was correct in refusing to mandate a Daubert hearing before Wehrenberg's testimony and did not abuse its discretion in allowing the gahnite evidence. Furthermore, Duke's findings do not change our view that the gahnite evidence was relevant and that Wehrenberg's testimony rested on a reliable foundation. Duke's conclusions merely question the weight of the evidence presented by Wehrenberg, not its admissibility. As we stated in Moeller II, “there is

[still] no evidence in the record that Wehrenberg's methodology or analysis was so skewed as to alter the otherwise reliable scientific method.” Id. ¶ 87. At most, Duke's analysis amounts to new evidence. However, newly discovered evidence is not a sufficient ground for habeas relief where no deprivation of a constitutionally protected right is involved. Boyles v. Weber, 2004 SD 31, ¶ 11, 677 N.W.2d 531, 538 (citing Herrera v. Collins, 506 U.S. 390, 390-91, 113 S.Ct. 853, 855, 122 L.Ed.2d 203 (1993)).

[¶ 14.] Moeller asks us to declare, on habeas review, that the evidence destroyed by Wehrenberg would not have been favorable to the State. We are not persuaded that Moeller's right to due process was violated by the destruction of the grains identified by Wehrenberg as gahnite. While the destruction of this evidence is regrettable, it did not taint Moeller's subsequent criminal trial. We find it difficult to envision a constitutional flaw in the proceedings where no party discovered Wehrenberg's destruction until eleven years after the event and where, at the time of destruction, Moeller had in his possession comparable evidence.

[¶ 15.] Even if Moeller had discovered the destruction of the evidence before his trial, it does not necessarily follow that he would have been entitled to such an adverse inference. In State v. Engesser, we held that an adverse inference should not be drawn from missing evidence unless it was disposed of intentionally or in bad faith. 2003 SD 47, ¶ 44, 661 N.W.2d 739, 754-55. We reiterated this position in State v. Bousum: “mere negligence in the loss or destruction of evidence does not result in a constitutional violation.” 2003 SD 58, ¶ 16, 663 N.W.2d 257, 263. Our view on this issue is drawn from well-settled Supreme Court case law. In California v. Trombetta, the United States Supreme Court held that due process was not violated when law enforcement officers failed to preserve breath samples despite the introduction of the results of the breath analysis test. 467 U.S. 479, 488, 104 S.Ct. 2528, 2533-34, 81 L.Ed.2d 413 (1984). In reaching this conclusion, the Court reasoned that a state's duty to preserve evidence is “limited to evidence that might be expected to play a significant role in the suspect's defense.” Id. (emphasis added). Evidence plays a “significant role” where the evidence possessed “an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 488-89, 104 S.Ct. at 2534 (emphasis added).

[¶ 16.] Although Moeller argues that Wehrenberg's destruction of evidence was more than mere negligence, we are not convinced. In his deposition, Wehrenberg candidly admitted that he destroyed the evidence. He stated that this was necessary because a substance that he used during his analysis was carcinogenic. He indicated that he was under no direction to destroy the evidence, and that, in fact, the State was unaware that he had done so. Moeller seems to argue that the State's direction to Wehrenberg that he should analyze the grains in a “generalized manner” was tantamount to an instruction by the State to destroy the evidence upon completion of the analysis. However, the habeas court rejected this argument and instead concluded that Wehrenberg's conduct was negligent and not a calculated effort to destroy exculpatory evidence. We find no fault with the habeas court's finding. There is simply no support in the record that the destruction of the evidence by Wehrenberg was more than mere negligence. Thus, we see no violation of Moeller's right to due process.

[¶ 17.] Our conclusion that the destruction of the “gahnite” grains does not amount to a violation of Moeller's right to due process is furthered by the undisputed fact that at the time of the destruction comparable evidence was available for Moeller's review. True, the samples delivered to Moeller's expert may not have been the identical samples tested by Wehrenberg, but samples taken from both the crime scene and Moeller's vehicle were available for analysis. In fact, these samples were sent to Moeller's soil expert and remained under the control of Moeller's counsel.

[¶ 18.] Given that the record does not reflect that the State acted in bad faith in the destruction of evidence and given that the destruction did not impair Moeller's ability to examine comparable evidence, we conclude that Moeller would not have been entitled to an adverse inference even if he had discovered the destruction of the evidence before his direct appeal. Therefore, we find no error in the habeas court's conclusion that the destruction of the evidence did not amount to a violation of Moeller's constitutionally protected rights.

II.

[¶ 19.] Moeller next contends that the habeas court erred when it concluded that Moeller was not denied his right to due process of law by the trial court's instructions concerning life imprisonment without parole. During jury deliberations in the sentencing phase of Moeller's second trial, the jury asked, “If the penalty of ‘life imprisonment without parole’ should be imposed upon the defendant, will he EVER have a chance to appear before a parole board?” (Emphasis in original.) The trial judge responded, “We acknowledge your note asking questions about life imprisonment without parole. All of the information which I can give you is set forth in the jury instructions.” Moeller argues now that the trial judge was bound to further define “life imprisonment without parole.”

[¶ 20.] Moeller contends that the Due Process Clause forbids the execution of a prisoner where the trial court refused to give a jury instruction defining the meaning of “life without parole.” His argument is founded on several United States Supreme Court cases mandating that when a defendant is facing the possibility of execution, and a prosecutor argues that the defendant poses a future threat to society, and a trial court refuses to inform the jury whether life imprisonment precludes the opportunity for parole, the defendant's right to due process has been violated. See Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002); Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994); Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990).

[¶ 21.] This case is not similar to the ones Moeller cites. As we held in Moeller's direct appeal, “future dangerousness was not specifically raised as a concern by

[the] State.” Moeller II, 2000 SD 122, ¶ 155, 616 N.W.2d at 461. Furthermore, we held that the instructions given to the jury “were an accurate and complete reflection of the law.” Id. ¶ 156. There is no ambiguity in an instruction that defines life imprisonment as “life without parole.” Thus, Moeller's constitutional rights were not violated by the trial court's instruction and subsequent response to the jury question. Indeed, any further explanation would have been at best redundant and at worst confusing. The trial court was correct in not elaborating on an already proper instruction.

III.

[¶ 22.] Moeller next contends that the habeas court erred in finding no ineffective assistance of trial counsel. Moeller's first claim in this regard originates from the decision of his trial attorneys not to substantially participate in the Daubert hearing on the admissibility of DNA evidence. After our reversal of Moeller's original conviction, the trial court established January 13, 1997 as the date for the hearing on DNA evidence. At Moeller's request, the court rescheduled the hearing for March 3, 1997. On February 19, 1997, Moeller again requested that the court reschedule the hearing. The court denied the request.

[¶ 23.] At the Daubert hearing, Moeller's attorneys stated that they were “totally unprepared” to participate in the hearing, and, as a result, they were not “competently and adequately” representing Moeller. Despite this, the court proceeded with the hearing. Moeller's counsel presented no expert testimony in defense and conducted only perfunctory cross-examination. As a result of the hearing, the court found that the DNA evidence was admissible under the Daubert standard.

[¶ 24.] In response to the continuance request and unpreparedness statement, the trial court issued findings of fact that explained its decision to deny Moeller's request for a continuance. The court found that the claim of inadequate time to prepare for the hearing was not credible. Furthermore, the court held that the decision of defense counsel “to not call witnesses or examine witnesses at the Daubert hearing was a tactical decision made with the intent to create the appearance of error and ineffective assistance of counsel, and not the result of being denied the opportunity to adequately present a defense.” FN2 On habeas, Moeller now claims that his attorneys' strategy was unreasonable and prejudicial. FN2. In Moeller II, this Court determined that the trial court “did not abuse its discretion in denying his motions for a continuance.” 2000 SD 122, ¶ 24, 616 N.W.2d at 434. As an aside, we agree with the habeas court's observation that “if defense counsel were allowed to employ tactics which end in a questionable result and then urge the tactic as a significant error requiring a new trial, the mischief which would result would be limitless.”

[¶ 25.] Moeller argues that the proper test here is whether his substantial rights were affected during the hearing because trial counsel was constructively absent during the Daubert hearing. He further argues that our scope in reviewing trial counsel effectiveness is limited to the DNA hearing, a “discrete portion” of the trial. Thus, before proceeding further, we must determine (1) whether the strategy of defense counsel during the hearing amounted to a constructive absence of counsel, and (2) whether the Daubert hearing was a “discrete portion” of the trial.

[¶ 26.] Moeller looks to several cases for support on his contention that he was not afforded assistance of counsel during the Daubert hearing. However, the cases Moeller relies on are not analogous. This is certainly not a case where trial counsel fell asleep during trial or did not attend the entire trial. Instead, as both the habeas and trial courts found, Moeller's trial counsel embarked on a calculated strategy. While its effectiveness may be questioned, certainly Moeller's representation during the hearing was more than “mere physical presence.” The issue presented here is a question of the effectiveness of assistance of counsel, not the lack of it. Thus, Moeller is not entitled to a presumption of prejudice, as he suggests.

[¶ 27.] Nor are we convinced that we may not look beyond the Daubert hearing in determining the effectiveness of trial counsel. Moeller contends that we must narrow our review to only the DNA hearing. He cites Collier v. Turpin, 177 F.3d 1184, 1196 n. 17 (11thCir.1999) as standing for this proposition. However, Moeller's reliance here is misplaced. In Collier, the court noted that in determining whether counsel provided effective assistance, a court should look to each discrete portion of a trial without regard to performances at other times during the trial. Id. There, the court reasoned that it would be improper for a court to look at the guilt and sentencing phases in toto. Never did the Collier court suggest that it was improper for a court to review counsel's performance at an evidentiary hearing in combination with counsel's performance during the trial. Thus, we see no reason to review in isolation trial counsel performance during the Daubert hearing. With our preliminary inquires answered, we proceed to determine whether the strategy of not substantially participating in the Daubert hearing amounted to ineffective assistance of counsel.

[¶ 28.] The well-established two-prong test for a claim of ineffective assistance of counsel requires a showing “(1) that counsel's representation fell below an objective standard of reasonableness, and (2) that such deficiency prejudiced the defendant.” Coon v. Weber, 2002 SD 48, ¶ 11, 644 N.W.2d 638, 642 (citations omitted). “ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). Lawyers “are presumed to be competent unless otherwise shown and the reasonableness of counsel's performance is evaluated from counsel's perspective at the time in light of all of the circumstances.” Id. (citing Davi v. Class, 2000 SD 30, ¶ 17, 609 N.W.2d 107, 112). “

[A] wrong or poorly advised exercise of judgment is not alone enough to support a subsequent claim of ineffective counsel.” Jones v. Class, 1998 SD 55, ¶ 23, 578 N.W.2d 154, 162.

[¶ 29.] As a result of the Daubert hearing, the trial court allowed the State to introduce DNA evidence using both APO-B and other markers. It is worth noting initially that even now Moeller presents no testimony or other evidence that might have led to the exclusion of any DNA evidence based on any marker other than the APO-B marker at the Daubert hearing. His failure to challenge that evidence leads us to the conclusion that even if trial counsel had attempted to prevent its admission, they probably would have failed. Thus, Moeller does not realistically demonstrate that the performance of his defense attorneys in regard to most of the DNA evidence was ineffective.

[¶ 30.] From the above, we can reasonably conclude that trial counsel was faced with the realization that even if the APO-B DNA evidence was excluded, the evidence still showed in the remaining analysis that the probability of a person in the Caucasian population having DNA characteristics common to Moeller's would be 1 in 130 million. While trial counsel did not attack the admissibility of the APO-B DNA evidence, counsel sought during trial to inject reasonable doubt in the minds of the jurors regarding all DNA evidence presented by the State. Defense counsel vigorously cross-examined the State's DNA experts regarding the methodology, reliability, and control procedures of their testing. Trial counsel obtained an admission from the State's DNA expert that it had only recently been determined that APO-B DNA evidence was reliable and that no other laboratory had made such a determination. In addition, in closing argument, defense counsel repeatedly referred to the lack of validation procedures, not just for the APO-B DNA evidence, but for all DNA evidence presented by the State. In essence, counsel used the questionable reliability of the APO-B DNA evidence to support an inference that the remaining DNA evidence was equally unreliable. Thus, we cannot say that the strategy to forego a vigorous defense against the admission of the APO-B DNA evidence in the Daubert hearing was ineffective, where the admission of such evidence was effectively challenged at trial.

[¶ 31.] Next, Moeller claims ineffective assistance of counsel because trial counsel failed to test the mineral identified by the State's expert as gahnite. For this claim, Moeller relies heavily on later testing that concluded that the material found was neither gahnite nor common spinel. However, as we noted above, we review defense counsel performance from their perspective at the time in light of all of the circumstances. Coon, 2002 SD 48, ¶ 11, 644 N.W.2d at 642 (citations omitted).

[¶ 32.] At trial, Moeller's soil expert testified that ancient glaciers moving through what is now South Dakota deposited the soils now found in the Minnehaha and Lincoln county areas. Moeller's expert also opined that soils found throughout the eastern part of the state would be substantially similar. Moreover, the expert explained that any mineral deposit, such as gahnite, if found in a specific area of the state would likely be found in other areas of the state due to the manner in which the soils were deposited. Lastly, the defense expert testified that the mineral found by the State's expert was more likely common spinel, a rare mineral, though not as rare as gahnite.

[¶ 33.] From the testimony, it is clear that instead of attempting to show that the mineral was common spinel rather than gahnite, defense counsel chose to proceed with a theory that the State's expert was mistaken in his conclusion that a soil analysis could isolate any locale in the eastern part of the State. Trial counsel argued that it was irrelevant whether the mineral found was gahnite because, as the defense expert testified, whether the soil was found in Lincoln, Lake, or Minnehaha County, “It's all similar.” Proceeding under such a theory was neither unreasonable nor ineffective.

IV.

[¶ 34.] Moeller argues that the habeas court erred when it concluded that the trial court's decision to admit APO-B DNA evidence was not a trial error that had substantial and injurious effect on the jury's verdict and deprived Moeller of his right to due process of law as provided by the Constitutions of the United States and South Dakota. At the onset, we note that the habeas court ruled that Moeller showed no error on the part of the trial court in admitting the disputed DNA evidence.

[¶ 35.] Moeller argues that the trial court failed to exercise its gatekeeping function when it admitted the APO-B DNA testing results because the evidence was not sufficiently reliable. Moeller points to the fact that “ Moeller II

[is] the only reported decision in which APO-B was determined reliable enough to be admissible.” He called an expert who “testified that the use of APO-B for forensic applications was not generally accepted in the forensic community

[.]” Moeller further asserts that the validation process used by the State's DNA expert was insufficient and incomplete. Finally, Moeller argues that as a result the State was able to present evidence that “when the APO-B frequency was included with the other

[DNA] markers the likelihood

[that Moeller was the perpetrator] went into the range of 1 in 14.8 billion, or a virtual certainty that Moeller was the perpetrator.” This Moeller argues was clearly prejudicial.

[¶ 36.] Trial courts have broad discretion in determining whether to admit expert testimony. State v. Weaver, 2002 SD 76, ¶ 24, 648 N.W.2d 355, 364. Only where a court abuses its discretion in admitting evidence will we reverse. Moeller I, 1996 SD 60, ¶ 51, 548 N.W.2d at 479. In determining whether to admit expert opinion, a court should look to whether the testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.” SDCL 19-15-2. Proposed expert testimony must rest on a reliable foundation and be relevant. Moeller I, 1996 SD 60, ¶ 52, 548 N.W.2d at 479. “ ‘Pertinent evidence based on scientifically valid principles will satisfy those demands.’ ” Id. (quoting State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994)). Habeas corpus is a collateral review meant “to afford relief to those whom society has ‘grievously wronged.’ ” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1721, 123 L.Ed.2d 353 (1993). Where a constitutional error exists, the State must show that the error was harmless. Id. at 641, 113 S.Ct. 1710 (Stevens, J., concurring). A habeas court's findings of fact are given “considerable deference” and as such are reviewed under a clearly erroneous standard. Rhines, 2000 SD 19, ¶ 9, 608 N.W.2d at 306.

[¶ 37.] An assertion that we must find error in the admission of the APO-B DNA evidence merely because no other reported decision has deemed it admissible is immaterial. While prior admission of similar evidence in other jurisdictions may assist a trial judge in determining whether to admit evidence, we do not see the lack of reported precedent as an outright impediment against admission.

[¶ 38.] In regard to the validation process, Moeller contends that (1) the State's expert failed to deliver to Moeller certain documents regarding the validation process, (2) untrained personnel (students) conducted the validation, and (3) the validation studies were not complete before the testing. The habeas court specifically rejected each of these assertions in its Findings of Fact and Conclusions of Law. The habeas court found: * * *

19. * * * p. Moeller's belief that validation reports were never turned over to the defense and were discarded by Dr. Schanfield stems from his confusion over: i. .... ii. .... iii. The time frame of the initial validation studies and what occurred thereafter in relationship to the second trial. iv. Work done with students to determine whether laboratory models could be duplicated with some relative ease. q. Merely because Moeller is confused about some of the data or what its implication might be does not imply that it was never disclosed. r. This Court is left with the firm impression that all available APO-B material and information had been disclosed during discovery leading up to the second trial. s.

[The State's expert's] validation information was published, and that certainly preserved the information Moeller now seeks. t. While the Court is of the opinion that discovery of APO-B material was adequate and court orders satisfied, nothing satisfies Moeller. After giving him everything required, he wants more even when his hired expert concluded that some of it was unnecessary. Having received everything directly involved in testing the samples in this case, Moeller wants to go back further to ask for data from an earlier time. It is not necessary. This approach is consistent with Moeller's past approach of attacking

[the State's expert].

20. * * * c. Being peer reviewed is only one criteria to look at. That was satisfied at the 1997 Daubert hearing. d. In the years between 1992, when Dr. Schanfield was working on APO-B studies, and 1997, when the second trial began, Dr. Schanfield continued his work on APO-B markers. By the retrial in Moeller II, Dr. Schanfield had presented his validation studies on APO-B at regional forensics meetings. e. There is a disagreement within the DNA community about APO-B markers. i. Dr. Eisenberg has a strong, subjective opinion about the validity of APO-B as a useful DNA marker. However, she never read AGTC's presentation of their validation studies. Dr. Eisenberg was not even sure whether she needed to review the database gels used by AGTC. She had not read the Daubert hearing record; as a result, she did not have a full understanding for Dr. Schanfield's opinion. Dr. Eisenberg indicated that even the bioblots would not be necessary for her review. Rather, what concerned her was her fundamental, subjective belief that APO-B was not a good, reliable marker despite contrary testimony. ii. Dr. Robin Cotton of Cellmark Labs testified at the Daubert hearing that there is no particular objection to the APO-B marker, and APO-B is a perfectly good marker.

[¶ 39.] Moeller presents nothing that might lead us to the conclusion that these findings are clearly erroneous. He rests his assertion on the rejected testimony of his expert at the habeas hearing, testimony refuted by the State's DNA expert. Therefore, we see no reason to disturb the habeas court's findings.

[¶ 40.] The validation process conducted by the State's expert may not have satisfied every critic; however, that is not the standard. In determining the reliability of scientific testimony, we have oft pointed to the non-exhaustive list of guidelines delineated in Daubert. See Weaver, 2002 SD 76, ¶ 25, 648 N.W.2d at 364; State v. Guthrie, 2001 SD 61, ¶ 35, 627 N.W.2d 401, 416. In Weaver, we quoted eight such guidelines from Guthrie: (1) whether the method is testable or falsifiable; (2) whether the method was subjected to peer review; (3) the known or potential error rate; (4) whether standards exist to control procedures for the method; (5) whether the method is generally accepted; (6) the relationship of the technique to methods that have been established as reliable; (7) the qualifications of the expert; and (8) the non-judicial uses to which the method has been put. (Internal citations omitted.) Id. The fundamental error in Moeller's argument is that he now wishes to interpose certain scientific standards of validation on our Daubert guidelines of admissibility. For example, Moeller apparently believes that because certain standards in the DNA community dictate that peer review be conducted before testing a sample, the Daubert guideline that a method be subjected to peer review must not have been met. Expert testimony need only be based on a “reliable foundation.” Weaver, 2002 SD 76, ¶ 24, 648 N.W.2d at 364. There is no requirement that the foundation be one that is absolutely accepted throughout the scientific community. Moeller rests his entire argument on the premise that the State's expert failed to meet the rigorous validation processes of the DNA community. He devotes no ink to explaining where the State's expert failed to meet our admissibility requirements. At most, Moeller's arguments are a tangential attack on whether the method used by the State's expert was generally accepted in the scientific community. However, these attacks do not persuade us to declare that the trial court abused its discretion in admitting the evidence.

[¶ 41.] In furtherance of our belief that the trial court did not err in admitting the disputed DNA evidence, we note that the habeas court effectively conducted what might be referred to as a “post-conviction” Daubert hearing. During the habeas hearing, Moeller's DNA expert was allowed to testify at length on problems she perceived in the APO-B testing. However, even at this stage, Moeller's expert was unable to convince the habeas court that the evidence based on the APO-B marker failed to meet our admission standards. All the habeas court found was that there is disagreement in the DNA community on whether APO-B is a valid marker. Again, perfect agreement is not a prerequisite to admission of scientific evidence.

V.
A. Prosecutorial Discretion

[¶ 42.] Moeller contends that the habeas court erred when it concluded that failure to follow the procedures outlined in SDCL 23A-27A was not a structural error affecting the entire trial process depriving him of his rights to due process and equal protection of the law, and violating the doctrine of separation of powers as provided by our state and federal constitutions. Unquestionably, the State in the exercise of its discretion may choose whether to prosecute individuals and what charges to bring against them. There is also no question that this general principle extends to the prosecution of a person suspected of committing a crime for which the penalty, upon conviction, is either life imprisonment or execution by lethal injection. The question before us here is this: does the State, in addition to having the discretion to decide that it will seek the conviction of a person for a capital crime, also have the discretion to decide whether it will seek the death penalty in a given case? Moeller argues that allowing the State such discretion violates our statutes and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. FN3 Our answer to this question has important consequences for, among other things, the size of the pool of cases considered when fair proportionality of sentencing is challenged. FN3. We review constitutional questions de novo. State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43.

[¶ 43.] SDCL Chapter 23A-27A provides the statutory scheme for the prosecution of capital crimes. A review of the initial sections, quoted in part, will clarify the context of the question. According to § 23A-27A-1, “in all cases for which the death penalty may be authorized, the judge ... shall include in instructions to the jury for it to consider, any mitigating circumstances and any of the

[ten] aggravating circumstances which may be supported by the evidence....” SDCL 23A-27A-2 provides: “In all cases in which the death penalty may be imposed and which are tried by a jury, ... the court shall resume the trial and conduct a presentence hearing before the jury.” Id. (emphasis added). (The meaning of the “ may” in that statute is that the imposition of the death penalty lies within the jury's limited discretion. The limitation of that discretion is provided by § 23A-27A-4: “If, upon a trial by jury, a person is convicted of a Class A felony, a sentence of death shall not be imposed unless the jury verdict at the presentence hearing includes a finding of

[1] at least one aggravating circumstance and

[2] a recommendation that such sentence be imposed.” (enumeration added).) SDCL 23A-27A-2 continues: “Such hearing shall be conducted to hear additional evidence in mitigation and aggravation of punishment. At such hearing the jury shall receive all relevant evidence, including: (1) Evidence supporting any of the aggravating circumstances listed under § 23A-27A-1; ...

[and] (4) All evidence concerning any mitigating circumstances.” Then, according to § 23A-27A-3, the jury, after argument of counsel in the presentencing hearing, “shall retire to determine whether any mitigating or aggravating circumstances ... exist.”

[¶ 44.] Moeller relies on dictum from State v. Clothier, 381 N.W.2d 253 (S.D.1986), to support his argument that it is not within the statutory discretion of the prosecution to decide whether to seek the death penalty.FN4 In Clothier, the prosecutor announced that he would not seek the death penalty if the defendant were convicted of the charged offense of first-degree murder. Nonetheless, although the defense certainly did not object to the prosecutor's waiving of the death penalty, defense counsel insisted that the jury had to be death qualified because the applicable statutes mandated that all convictions for first degree murder were death penalty eligible and only a jury could decide life or death as the appropriate punishment. Reasoning that the jury could not impose the death penalty if the prosecutor declined to offer evidence or argument in support of it, the trial court refused to death qualify the jury. At the end of the trial, the jury returned a verdict of first degree manslaughter, making the question moot. Nonetheless, on appeal, this Court wrote,

FN4. Dictum is the abbreviation for “ obiter dictum,” the plural being “ obiter dicta.” Dicta are pronouncements in an opinion unnecessary for a decision on the merits. As Chief Justice Marshall explained in Cohens v. Virginia, dictum should be avoided because, among other reasons, it is usually made through inadequate effort in its formulation. 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821). See also Richard B. Cappalli, The American Common Law Method, 18-19 (Transnational Publishers 1997).

The procedure for ascertaining the punishment and possible imposition of the death penalty ... is provided by SDCL

[Chapter] 23A-27A

[ ].FN5 Nothing in this

[Chapter] authorizes the prosecutor or judge to determine the penalty prior to a guilty verdict. The procedure is provided in SDCL

[Chapter] 23A-27A

[ ], which should be followed in capital cases. FN5. The Clothier opinion mistakenly cites SDCL 23A-27A-10, rather than the entire chapter 23A-27A, in this and the next sentence. Id. at 258. In a footnote, the Court went on to state: If the prosecutor has a recommendation, he may state it at the presentence hearing provided by SDCL 23A-27A-2. There may be situations where the State has no evidence of aggravating circumstances proscribed in SDCL 23A-27A-1 to justify the death penalty; but, SDCL 23A-27A-3 indicates the jury is to determine the mitigation or aggravation, unless it is a nonjury case, then the judge conducts the presentence hearing. SDCL 23A-27A-6.

[¶ 45.] First, we must repeat that this conclusion in Clothier cannot be understood as other than dictum. Since, as the Clothier court noted, “the penalty issue for first-degree murder was rendered moot when the jury failed to find him guilty of that charge,” the issue was not properly before it. Clothier, 381 N.W.2d at 258. It is a fundamental principle of our jurisprudence that courts do not adjudicate issues that are not actually before them in the form of cases and controversies.

[¶ 46.] Second, an aggressive reading of these passages in Clothier, such as Moeller proposes, would result in absurdity. Suppose, for example, that, in Clothier, the jury had convicted the defendant of first-degree murder. The putative holding in Clothier would require that the verdict be thrown out because the option of death had been illegally eliminated, even though there was no evidence offered or sought to be offered in support of it. Worse, this reading of the statute, that both the State and the defense are obliged to present evidence (because “the jury shall receive” “all relevant evidence” and shall hear “

[a]ll evidence concerning any mitigating circumstances”), is impossible, for it contravenes the fundamental principle that the defense cannot be required to present any evidence whatever. SDCL 23A-27A-2 (emphasis added). See U.S. Const. amend. V. Moreover, the Clothier Court's suggestion that the prosecutor can only state a recommendation in the sentencing phase has no basis in the statutes, including the one the Court cites for it. To follow Clothier's dictum literally, removing all prosecutorial discretion in assessing the facts to support a death penalty sentence, would radically transform our system into a process “totally alien to our notions of criminal justice.” Moeller I, 1996 SD 60, ¶ 132, 548 N.W.2d at 494. In sum, we must fall back on the rule of statutory construction that requires us to give a sensible reading to statutes. See, e.g., State v. Barton, 2001 SD 52, ¶ 8, 625 N.W.2d 275, 278 (citations omitted). We presume that the Legislature intended no absurd or unreasonable result. Id. Thus, we set aside Clothier's dictum.

[¶ 47.] Turning to the individual sections, then, one finds that § 23A-27A-1 requires the judge to include in instructions to the jury that it consider any mitigating circumstances and any of the ten aggravating factors “which may be supported by the evidence.” SDCL 23A-27A-1 (emphasis added). SDCL 23A-27A-1 refers to the situation obtaining before the jury retires to consider the question of guilt, and the “may” refers to the possibility that the evidence will support a mitigating or aggravating factor and at the same time implies that instructing the jury on that possibility lies within the discretion of the judge. That is, the trial court, not the prosecution, makes the initial decision whether the jury is to receive instructions on the mitigating or aggravating factors to be considered in the determination of guilt.

[¶ 48.] SDCL 23A-27A-2 takes effect only after the jury has returned a verdict of guilty. At that point, the jury hears “additional evidence in mitigation and aggravation of punishment. In such a hearing, the jury shall receive all relevant evidence, including ...

[e]vidence supporting any of the aggravating circumstances listed under § 23A-27A-1” as well as “

[a]ll evidence concerning any mitigating circumstances.” Id. (emphasis added). At this point, the discretion of the parties and the trial court is limited to the latter's determination of the relevance of proffered evidence: the court is obliged to allow (for “the jury shall hear”) both the State and the defense to present “all relevant evidence.” That is, the court shall allow the prosecution to present all relevant evidence supporting any of the aggravating factors, and the defense to present all relevant evidence concerning any mitigating factors. Relevant evidence includes “

[e]vidence supporting any of the aggravating” factors and “ all evidence concerning any mitigating circumstances.”

[¶ 49.] We assume that statutes mean what they say. South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exch., 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209. Quite clearly, § 23A-27A-2 means that the jury is to hear all relevant evidence that either side wishes to present. Accordingly, when “the prosecution intends to seek the death penalty,” nothing more-or less-can be meant than that the prosecution believes that, if the case goes to trial, it has sufficient evidence to support a jury finding that one or more of the aggravating factors exist in the case and that any mitigating evidence will be found an insufficient counterweight to preclude a death sentence.FN6 On the other hand, when “the prosecution does not intend to seek the death penalty,” the meaning can be either (1) that the prosecution believes it has insufficient evidence to support a jury finding that aggravating factors exist in the case or (2) that it has proposed-and the court has agreed-that (a) at the conclusion of the culpability phase, the jury will be given no instructions on aggravating factors-without which a death sentence cannot be imposed-and, therefore (b) the jury need not be death-qualified. To underscore the point, neither the defense nor the prosecution may be prevented from presenting relevant evidence to the jury in the penalty phase of the trial. The notion that prosecutorial discretion exists in the penalty phase is a distraction. The only discretion in the penalty phase is that of the trial court to determine relevance in accordance with standard canons of evidence. FN6. Of course, the case may not go to trial if the defendant has agreed to plead guilty to a lesser charge.

[¶ 50.] Revisiting Clothier's dictum with the preceding analysis in hand, we can now state that its interpretation was off the mark in declaring that “

[n]othing in this

[Chapter] authorizes the prosecutor or judge to determine the penalty prior to a guilty verdict.” 381 N.W.2d at 258. The Clothier court wrote: “The issue of punishment by death was eliminated prior to trial by the prosecutor and the court, which left as the only punishment life imprisonment if convicted of first-degree murder.” Id. The reality is that under § 23A-27A-1, once the prosecutor announces an intention to proffer no evidence to support any aggravating circumstance, there are no aggravating factors for the jury to consider, and thus no other penalty than life imprisonment can be imposed.

[¶ 51.] As for Moeller's constitutional challenge to the prosecution's discretion in seeking the death penalty, we adhere to our holding in Moeller II that “

[s]elective enforcement of SDCL 23A-27A-1 and 22-16-4 is insufficient to show that the statutes have been unconstitutionally applied to a specific defendant, absent a showing that the particular selection was deliberately based on an unjustifiable standard such as race, religion or other arbitrary classification.” 2000 SD 122, ¶ 165, 616 N.W.2d at 463. Moeller insists that, because the State assumed a prerogative to pursue the death penalty in his case, he has been denied due process of law and the equal protection of the laws as guaranteed by the Fourteenth Amendment. The State took this decision, however, even before the trial began, in order to obtain a death-qualified jury. Moeller has presented no evidence that the prosecution exercised unlawful discretion. Accordingly, Moeller's challenge fails.

B. Proportionality Review

[¶ 52.] In Rhines, this Court set forth its interpretation of proportionality review in capital cases. 1996 SD 55, 548 N.W.2d at 415. Moeller asserts that, by restricting proportionality review to the decisions of other capital sentencing authorities, we are abridging all convicted defendants' rights to due process and equal protection of the laws as protected under the Fourteenth Amendment. Moeller urges that we should instead expand the pool of similar cases to include all homicide cases that were prosecuted or could have been prosecuted under the State's current capital punishment scheme. The nub of Moeller's argument is that there is an unconstitutional element of arbitrariness in the size of the pool for comparison under proportionality review. According to Moeller, this arbitrariness results from this State's current practice of vesting in the Attorney General and State's Attorneys the decision whether to seek the death penalty.

[¶ 53.] As we stated in our discussion of Moeller's other issue, there was no illegitimate prosecutorial discretion involved here in the decision whether to seek the death penalty. Since there is no illegitimate discretion, there can be no element of arbitrariness. We see no compelling reason here to retrace that discussion-or its predecessors in Rhines and Moeller. Accordingly, we hold that our treatment of proportionality review is constitutional. FN7. Moeller cites to Palmer v. Clarke, 293 F.Supp.2d 1011 (D.Neb.2003), as analogous. In Palmer, on habeas review the federal district court determined that the Nebraska Supreme Court's practice of limiting review to “cases in which the death penalty

[had] been imposed ... violated

[the defendant's] due process rights

[.]” Id. at 1042-43. Our review is not limited to cases in which the death penalty was actually imposed; we review cases in which the death penalty might have been imposed. Thus, Moeller's cited precedent is distinguishable.

VI.

[¶ 54.] Moeller argues that the habeas court erred when it concluded that the process by which Moeller was charged, convicted, and sentenced to death was not defective in some substantial form required by law. Moeller relies on the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), for his argument that his constitutional rights were violated when the State failed to list in the indictment the statutory aggravators that it intended to use to support his death sentence. However, in Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the United States Supreme Court made clear the limited application of its ruling in Ring. Writing for the majority of the Court, Justice Scalia unequivocally explained, “ Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review.” Id. at 2526. Moeller's direct review was final August 30, 2000. Moeller II, 2000 SD 122, 616 N.W.2d 424. Ring did not announce its new procedural rule until 2002. 536 U.S. at 584, 122 S.Ct. at 2428. As such, the rule does not apply to Moeller.

[¶ 55.] Even if we were to conclude that the Court's decision in Ring was applicable here, we do not believe that the new rule would provide relief. South Dakota's Constitution permits a charge to be brought by indictment or information. SD Const. art. VI, § 10. To gain a thorough grasp of the holding in Ring, we must examine two earlier decisions. The first was Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). The rule from that case is succinctly stated in the concurring opinions of Justices Stevens and Scalia: “

[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.” Id. at 252-53, 119 S.Ct. at 1228-29 (opinion of Stevens, J.); see also 526 U.S. at 253, 119 S.Ct. at 1229 (opinion of Scalia, J.). The second case was Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), where the Court wrote: “

[U]nder the Due Process Clause of the Fifth

[and Fourteenth] Amendment

[s] and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 476, 120 S.Ct. at 2355 (emphasis added).

[¶ 56.] Adhering to its holdings in Jones and Apprendi, the Supreme Court in Ring struck down Arizona's capital sentencing structure. There, in an opinion authored by Justice Ginsburg (joined by Justices Stevens, Scalia, Kennedy, Souter and Thomas), the Court held that in examining alleged aggravating factors that would justify imposing the death penalty requires a jury, not a judge, to find the existence of such factors beyond a reasonable doubt. See Ring, 536 U.S. at 609, 122 S.Ct. at 2443. Arizona law had allowed a judge to determine the existence of aggravating and mitigating factors in deciding to impose death. The Court summed up its holding as follows: “If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact-no matter how the State labels it-must be found by a jury beyond a reasonable doubt.” Id. at 586, 122 S.Ct. at 2430.

[¶ 57.] Moeller believes that the federal constitution, as interpreted by the Supreme Court in these three recent decisions, makes unconstitutional South Dakota's procedure in giving the statutory aggravators through means other than in an indictment. In Ring, the Court held that because Arizona's enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” the Sixth Amendment requires that they be found by a jury. 536 U.S. at 609, 122 S.Ct. at 2443. From this Moeller reasons that aggravating circumstances are “elements” that must be alleged in an indictment or information. Thus, he argues, because the State did not allege the aggravators in the indictment, it was defective and the court lacked jurisdiction to impose the death sentence.

[¶ 58.] We reject these arguments for three reasons.FN8 First, Ring did not hold that indictments in capital cases must allege aggravating and mental state factors. See id. at 597 n. 4, 122 S.Ct. at 2437 n. 4 (“Ring does not contend that his indictment was constitutionally defective.”). Ring held that Arizona's aggravating factors operate as “the functional equivalent of an element of a greater offense,” but did not hold that such factors become actual elements in a new substantive offense. Ring, 536 U.S. at 609, 122 S.Ct. at 2443 (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. at 2365 n. 19) (emphasis added). Apprendi declared that the “substantive basis for ...

[the] enhancement is thus not at issue; the adequacy of ...

[the] procedure is.” Apprendi, 530 U.S. at 475, 120 S.Ct. at 2354 (emphasis added); see also Cannon v. Mullin, 297 F.3d 989, 994 (10thCir.2002) (“that Apprendi announced a rule of criminal procedure forecloses ... argument that Ring announced a substantive rule.”). Jones stated that “

[t]he constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment....” 526 U.S. at 243 n. 6, 119 S.Ct. at 1224 n. 6 (emphasis added).FN9

FN8. Federal courts have come down on both sides of the question. See e.g., United States v. Lentz, 225 FSupp2d 672, 675 (E.D.Va.2002) ( “

[T]he Supreme Court did not mandate that a fact that must be found to increase punishment beyond that authorized by the jury verdict constitutes an actual element of a new substantive crime. All Ring stands for is that any factual determination necessary to impose the death penalty must be found by a jury beyond a reasonable doubt”). “Defendants are correct that, in light of Ring v. Arizona, 536 U.S. 584, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the statutory aggravating factors ‘must ... be alleged in the indictment and found by a jury.’ ” United States v. Matthews, 246 FSupp2d 137, 142 (N.D.N.Y.2002) (quoting United States v. Quinones, 313 F.3d 49, 53 n. 1 (2dCir.2002)). See also United States v. Sampson, 245 F.Supp.2d 327 (D.Mass.2003). FN9. This was Justice Scalia's understanding of the holding as well. See e.g., Ring, 536 U.S. at 612-13, 122 S.Ct. at 2445 (Scalia, J., concurring) (“What today's decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so- by requiring a prior jury finding of

[an] aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase.”) (emphasis added).

[¶ 59.] Second, although the State did not allege its statutory aggravating circumstances in the indictment, it gave Moeller advance formal notice of which statutory aggravators it was going to rely on in its written notice of intent to seek the death penalty. The notice was given on September 3, 1996, and the jury was sworn in on April 28, 1997, some eight months later. The Court in Jones; Apprendi, and Ring dealt with the indispensable role of the jury in deciding criminal cases.FN10 These cases did not address whether notice of an aggravating factor had to be conveyed to the defendant only by means of an indictment or information, as opposed to some other means. We are satisfied that the holdings in these three cases have not been transgressed here.FN11 The notice of aggravating factors given to Moeller was sufficient. Other state courts have held likewise. See Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002) (state not under constitutional obligation to place statutory aggravators in the indictment); State v. Edwards, 810 A.2d 226 (R.I.2002) (same). The jury found beyond a reasonable doubt the existence of the statutory aggravators that were in the State's notice. That same jury sentenced Moeller to death.

FN10. The Court noted that of the thirty-eight states that impose the death penalty, twenty-nine states, including South Dakota, “commit sentencing decisions to juries.” Ring, 536 U.S. at 608 n. 6, 122 S.Ct. at 2442 n. 6. Certainly, there is no suggestion that the Ring Court believed its holding left South Dakota's death penalty scheme unconstitutional. FN11. Moeller asks us to attribute some legal significance to the Eighth Circuit case of United States v. Allen, 357 F.3d 745 (8thCir.2004). The Allen court held that failure to allege mental culpability and aggravating factors in a capital defendant's indictment violates the Fifth Amendment indictment clause. Id. at 747-48. Moeller believes this decision supports his view that the information here should have included the aggravating factors used against him. We do not believe that the 8th Circuit's recent decision bears any significance here. As we point out above, in Ring, a state criminal case, the defendant did not contend that his indictment was constitutionally defective, and the Supreme Court did not hold that Ring's indictment was defective for failing to allege the aggravating factors in the indictment. See Ring, 536 U.S. at 597 n. 4, 122 S.Ct. at 2437 n. 4. Allen is a federal criminal case and the requirement of a grand jury indictment in the Fifth Amendment is not applicable to the states, as declared in the Hurtado decision cited above. Thus, there is no federal constitutional requirement that a state felony prosecution, including a capital case, be commenced by an indictment issued by a grand jury. A close reading of the Allen decision supports our analysis. The foundation of the decision in Allen rests entirely on the Fifth Amendment's mandate that all “capital or otherwise infamous crime” be brought solely by grand jury indictment. South Dakota has no such requirement. Thus, the foundation upon which the Allen Court based its opinion is not applicable here.

[¶ 60.] Third, it must be kept in mind that this is a state criminal case. In Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 122, 28 L.Ed. 232, 239 (1884), the Supreme Court held that the requirement of a grand jury indictment set forth in the Fifth Amendment to the Constitution of the United States was not applicable to the states. The Supreme Court has never overruled Hurtado. Thus, as acknowledged in both Apprendi and Ring, there is no federal requirement that a state felony prosecution, including a capital case, be commenced by an indictment issued by a grand jury. Under South Dakota's Constitution and statutes, an information signed by the prosecutor is an adequate method of bringing a criminal charge. We see no reason why a notice of aggravating factors is not similarly permissible, so long as a jury has the ultimate decision on whether those factors have been proved beyond a reasonable doubt.

[¶ 61.] Insofar as Moeller had considerable advance notice of the aggravating factors to be considered in the sentencing phase of his case and the jury considered those factors and found them to exist beyond a reasonable doubt, Ring's holding, if applicable, has been followed here. Our analysis is bolstered by the Supreme Court's recent decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). There, the Court succinctly summed up its precedents, stating that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. at 2537 (citations omitted) (emphasis in original). The clear import of the language is that where a jury finds aggravating factors or where a defendant admits to aggravating factors, a judge may use such factors to increase a defendant's sentence. The trial court here made no findings independent of the jury findings. We conclude that Moeller's constitutional rights as delineated in Jones; Apprendi, and Ring were not violated.

[¶ 62.] Affirmed.

GILBERTSON, Chief Justice and ZINTER, Justice, and WILBUR, Circuit Court Judge, and MILLER, Retired Justice, concur. WILBUR, Circuit Court Judge, sitting for SABERS, Justice, disqualified. MILLER, Retired Justice, sitting for MEIERHENRY, Justice, disqualified.

Moeller v. Weber, 649 F.3d 839 (8th Cir. 2011). (Federal Habeas)

Background: After his capital murder conviction was affirmed on direct appeal, 616 N.W.2d 424, petitioner sought federal habeas relief. The United States District Court for the District of South Dakota, Lawrence L. Piersol, J., 635 F.Supp.2d 1036, denied the petition, and petitioner appealed.

Holdings: The Court of Appeals, Kopf, District Judge, sitting by designation, held that: (1) even assuming State raised defendant's future dangerousness during either the guilt or penalty phases of capital murder trial, trial court satisfied due process requirement that it inform jury of defendant's parole eligibility; (2) petitioner was not denied effective assistance of counsel when defense counsel did not actively participate in Daubert hearing regarding DNA evidence; and (3) defense counsel were not ineffective when they failed to test mineral evidence submitted by the State. Affirmed.

KOPF, District Judge.

A South Dakota jury convicted Donald E. Moeller of first-degree murder and first-degree rape, and sentenced him to death. After the South Dakota Supreme Court affirmed his conviction and sentence and upheld the denial of his state habeas corpus petition, Moeller filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. The district court FN2 denied Moeller's petition and we affirm. FN2. The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota.

I.

On the evening of May 8, 1990, nine-year-old Rebecca O'Connell visited a convenience store. Later that night, O'Connell's parents reported her missing, and two men found her body the following morning in a wooded area in Lincoln County, South Dakota. An autopsy showed that O'Connell had been repeatedly raped, sustained knife wounds to multiple areas of her body, and ultimately died as a result of a cut to her jugular vein. State v. Moeller, 616 N.W.2d 424, 430 (S.D.2000) (“ Moeller I ”).

After a trial, a jury convicted Moeller of first-degree murder and first-degree rape, and sentenced him to death. The South Dakota Supreme Court reversed the conviction because prior bad acts evidence had been improperly introduced at trial. State v. Moeller, 548 N.W.2d 465, 468 (S.D.1996). The State tried Moeller a second time for the same crimes. Moeller had the same counsel during both trials.

Prior to the start of Moeller's second trial, the trial court set January 13, 1997, as the date for a Daubert hearing regarding the admissibility of DNA evidence. On August 23, 1996, Moeller's counsel requested a continuance of the hearing, which the trial court denied. On December 11, 1996, prosecutors identified the DNA evidence they planned to introduce at trial, which would be the subject of the Daubert hearing.FN3 Moeller's counsel again sought a continuance of the Daubert hearing, which the trial court granted. The trial court continued the Daubert hearing to March 3, 1997. On February 19, 1997, Moeller's counsel sought another continuance of the Daubert hearing, arguing that they did not have time to review the evidence and adequately prepare. The trial court denied the continuance request, finding that Moeller's counsel had nearly three months to prepare and conduct testing of the State's evidence. At the Daubert hearing, Moeller's counsel received a standing objection to the admissibility of the DNA evidence, but did not conduct meaningful cross-examination of the State's experts, and Moeller did not present his own expert. The trial court permitted the DNA evidence, including evidence related to the APO–B marker, to be introduced at trial. FN3. The State indicated that it planned to introduce evidence regarding several different DNA markers, including the D1S80 marker, the DQ-alpha marker, and the APO–B marker.

The State introduced this evidence through Moses Schanfield, an expert who had also previously performed some DNA analysis for Moeller. Schanfield testified about the APO–B marker and other DNA markers. During trial, Moeller's counsel thoroughly cross-examined Schanfield, and the State's other DNA experts, about their methodology, reliability, and control procedures of their testing. The State's experts testified that, based on testing conducted on semen taken from O'Connell's body, the DNA evidence demonstrated that the probability of a person in the Caucasian population having DNA characteristics common to Moeller's would be 1 in 130 million if the APO–B marker was not included. If the APO–B marker was included, the probability would be 1 in 14.8 billion.

The State also submitted the testimony of a soil expert, John Wehrenberg, at Moeller's second trial. Wehrenberg had testified at Moeller's first trial about his analysis of soil samples found at the crime scene and soil samples found on Moeller's truck and his finding that the soil may have come from the same place. Wehrenberg also testified at Moeller's first trial that both samples contained a rare mineral, gahnite. Prior to Moeller's second trial, Wehrenberg wrote a letter indicating that gahnite was “very rare.” Moeller argued that this was an untimely, new conclusion and requested that the trial court conduct a Daubert hearing regarding the soil evidence. The trial court rejected the request, but permitted Moeller to depose the expert prior to his testimony at the second trial. During the second trial, Moeller's counsel cross-examined Wehrenberg extensively about his gahnite findings, and Moeller presented his own soil expert in response to Wehrenberg.

A jury again convicted Moeller of first-degree murder and first-degree rape. The penalty phase began one day later, with the same jury. Neither side presented evidence or called witnesses during the penalty phase. During penalty-phase deliberations, the jury sent the following question to the trial judge: “If the penalty of ‘life imprisonment without parole’ should be imposed upon the defendant, will he EVER have a chance to appear before a parole board?” The word “EVER” was in all capital letters and underlined three times. The trial judge, after consulting with the parties, answered the question as follows, “We acknowledge your note asking questions about life imprisonment without parole. All of the information which I can give you is set forth in the jury instructions.” The jury instructions twice referred to the jury's sentencing options as “life imprisonment without parole,” and also used the terms “life imprisonment” and “life sentence.” The verdict form included only two sentencing options: “life imprisonment without parole” and “death.” The jury returned a sentence of death.

The South Dakota Supreme Court affirmed Moeller's conviction and sentence. Moeller I, 616 N.W.2d at 430. Moeller then filed a state habeas corpus petition, which the trial court denied in its entirety, and the South Dakota Supreme Court affirmed the trial court's decision. Moeller v. Weber, 689 N.W.2d 1, 4 (S.D.2004) (“ Moeller II ”). Moeller filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. Moeller's petition asserted numerous claims, all of which the federal district court denied. The district court granted Moeller a certificate of appealability limited to the following five issues: A. Whether Moeller is entitled to federal habeas corpus relief based on his trial counsel's performance at the March 3, 1997, Daubert hearing and the ultimate admission of expert testimony regarding the APO–B region of the DNA evidence; B. Whether Moeller is entitled to federal habeas corpus relief based on his trial counsel's failure to have tested the alleged gahnite which was the subject of the State's soil expert's testimony, and/or based on the trial court's failure to conduct a Daubert hearing and the subsequent admission of expert testimony regarding the alleged gahnite; C. Whether Moeller is entitled to federal habeas corpus relief based on the trial court's response to the jury's question regarding whether Petitioner would ever have a chance to appear before a parole board; D. Whether a pretrial screening requirement of the Due Process Clause of the Fifth Amendment requires that the aggravating circumstance upon which Moeller's death sentence was based be returned by a grand jury in an indictment or be set forth in an information under South Dakota law; and E. Whether Moeller is entitled to federal habeas corpus relief based on the trial court having admitted evidence of Moses Schanfield's DNA testing and Schanfield's testimony at Moeller's trial.

II.

When a state court has adjudicated a habeas petitioner's claim on the merits, we may only conduct a very limited and extremely deferential review both as to the facts and the law. See 28 U.S.C. § 2254(d). With regard to the deference owed to factual findings of a state court's decision, we are bound by those findings unless the state court made a “decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Additionally, we must presume that a factual determination made by the state court is correct, unless the petitioner “rebut

[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Regarding deference owed to the application of the law under section 2254(d)(1), we may not grant a writ of habeas corpus unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), a state court acts contrary to clearly established federal law if it applies a legal rule that contradicts the Supreme Court's prior holdings or if it reaches a different result from one of that Court's cases despite confronting indistinguishable facts. Id. at 399, 120 S.Ct. 1495. Further, “it is not enough for

[the court] to conclude that, in

[its] independent judgment,

[it] would have applied federal law differently from the state court; the state court's application must have been objectively unreasonable.” Rousan v. Roper, 436 F.3d 951, 956 (8th Cir.2006).

As the Supreme Court recently noted, “

[f]or purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.’ ” Harrington v. Richter, –––U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The Antiterrorism and Effective Death Penalty Act of 1996 “preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with

[Supreme Court] precedents. It goes no farther.” Id. at 786. Put simply, “

[i]f this standard is difficult to meet, that is because it was meant to be.” Id. Thus, “

[i]t bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. The Supreme Court further explained: Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. Harrington, 131 S.Ct. at 786–87.

III.

Moeller reasonably elected to concentrate his oral argument exclusively on his claim that he is entitled to habeas relief because the trial court's response to a jury question regarding Moeller's eligibility for parole was inadequate, leaving the remaining issues for consideration on the briefs. We address the issues in that same order.

Under the Due Process Clause of the Fourteenth Amendment, when a defendant's future dangerousness is put before the jury, the jury must be informed of the defendant's parole eligibility. Simmons v. South Carolina, 512 U.S. 154, 156, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). This requirement is based on the long-standing principle that “

[t]he due process clause does not allow the execution of a person ‘on the basis of information which he had no opportunity to deny or explain.’ ” Id. at 161, 114 S.Ct. 2187 (citing Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977)). The due process requirement may be satisfied “either by a jury instruction or in arguments by counsel.” Shafer v. South Carolina, 532 U.S. 36, 39, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001) (quoting Ramdass v. Angelone, 530 U.S. 156, 165, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000)); see also Kelly v. South Carolina, 534 U.S. 246, 253, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002) (holding that the state raised the issue of future dangerousness and, under Simmons, the defendant was therefore entitled to a jury instruction regarding the defendant's eligibility for parole, where arguments of counsel were insufficient to inform the jury). FN4. To be precise, the clearly established federal law relevant to Moeller's petition is set forth in the holding of Simmons. Kelly and Shafer were decided after Moeller's conviction became final on direct appeal and we need not decide whether they constitute clearly established law for this case. See Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (Supreme Court law that “would qualify as an old rule under ... Teague jurisprudence will constitute ‘clearly established Federal law, as determined by the Supreme Court of the United States' under § 2254(d)(1)”) (citing Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); further citations omitted). That said, and as the Moeller II court implicitly determined, nothing in these more recent cases altered the rule in Simmons for purposes of Moeller's claim.

In Simmons, the state raised the issue of future dangerousness of the defendant to the jury during the penalty phase of the defendant's capital murder trial. The trial court refused to instruct the jury regarding the defendant's parole ineligibility, and instead affirmatively instructed the jury “not to consider parole or parole eligibility in reaching” their sentencing verdict. Id. at 160, 114 S.Ct. 2187. The trial judge further instructed the jury that “life imprisonment should be understood in its ‘plain and ordinary’ meaning.” Id. at 170, 114 S.Ct. 2187. The jury returned a sentence of death. Id. at 160, 114 S.Ct. 2187. The Supreme Court held that such instructions were insufficient to satisfy the Due Process Clause because “the jury was left to speculate about

[the defendant's] parole eligibility when evaluating

[his] future dangerousness, and was denied a straight answer about

[his] parole eligibility even when it was requested.” Id. Thus, the Court held that “where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” Id. at 156, 114 S.Ct. 2187.

Moeller argues that the trial judge's response to the jury's question regarding whether he would ever appear before a parole board violated the clearly established federal law set forth in Simmons. The South Dakota Supreme Court addressed, and rejected, this argument in its entirety. Moeller I, 616 N.W.2d at 461. In doing so, the South Dakota Supreme Court determined that “future dangerousness was not specifically raised as a concern by

[the] State,” but regardless, “while not explicitly instructed that ‘life means life,’ the jury here was informed that a sentence of life imprisonment was ‘life imprisonment without parole.’ Indeed, those were the very words used on the sentence verdict form.” Id. In light of this, “

[a]sking the jury to refer back to the instructions as given was a proper reply, as the instructions correctly set forth the law.” Id. at 461–62.

The South Dakota Supreme Court addressed this issue a second time during Moeller's state habeas corpus proceedings. Moeller II, 689 N.W.2d at 8–9. That court, applying Simmons and its progeny, reiterated its earlier decision and found that “

[t]here is no ambiguity in an instruction which defines life imprisonment as ‘life without parole.’ ” Id. at 8. Thus, the South Dakota Supreme Court determined that, “Moeller's constitutional rights were not violated by the trial court's instruction and subsequent response to the jury question. Indeed, any further explanation would have been at best redundant and at worst confusing. The trial court was correct in not elaborating on an already proper instruction.” Id. at 8–9.

Much ink has been spilled on the question of whether the State raised Moeller's future dangerousness during either the guilt or penalty phases of his trial, and whether the due process requirement under Simmons was triggered at all. We find it unnecessary to decide that question.FN5 Assuming the State raised Moeller's future dangerousness at trial, the trial court clearly instructed the jury that they could sentence Moeller to a term of “life imprisonment without parole” as the only alternative to “death.” While Moeller is correct that the jury instructions used the terms “life imprisonment” and “life sentence,” the verdict form itself included only two clear sentencing options: “life imprisonment without parole” or “death.” Moeller has not cited any clearly established federal law stating that jury instructions and a verdict form instructing the jury that the alternative to a death sentence is “life imprisonment without parole” are in any way insufficient to satisfy the due process requirement set forth in Simmons. See Knowles v. Mirzayance, 556 U.S. 111, ––––, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009) (“But this Court has held on numerous occasions that it is not ‘an unreasonable application of clearly established Federal law’ for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.”). Indeed, the clearly established law required only that the jury be informed of Moeller's parole eligibility, either by jury instruction or in arguments of counsel. See Shafer, 532 U.S. at 39, 121 S.Ct. 1263 (describing the holding of Simmons ). The trial court did just that.

FN5. To be clear, we make no determination regarding whether Simmons applies to cases in which the State raises future dangerousness of the defendant only during the guilt phase of a trial, nor do we find that the State raised the future dangerousness of Moeller during either the guilt or penalty phase of his trial. Affording the South Dakota Supreme Court the substantial deference it is due, we find that it reasonably applied Simmons and other clearly established federal law in rejecting Moeller's claim relating to the jury question. As such, Moeller is not entitled to relief under 28 U.S.C. § 2254 on this claim.

IV.

We next turn to Moeller's claims that the South Dakota Supreme Court violated clearly established federal law when it determined that Moeller's counsel performed reasonably even though they (1) failed to actively participate in the Daubert hearing regarding DNA evidence; and (2) failed to test soil evidence from the crime scene and from Moeller's vehicle.

We review ineffective assistance of counsel claims under the familiar framework set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner demonstrate both that his counsel's performance was deficient, and that such deficient performance prejudiced the petitioner's defense. Id. at 687, 104 S.Ct. 2052; see also Bryson v. United States, 268 F.3d 560, 561–62 (8th Cir.2001); Williamson v. Jones, 936 F.2d 1000, 1004 (8th Cir.1991). In conducting such a review, we must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Put simply, counsel's “strategic choices made after thorough investigation are virtually unchallengeable” in a later habeas corpus action. Id.

Additionally, the Supreme Court has emphasized that the deference due the state courts under 28 U.S.C. § 2254 applies with vigor to decisions involving ineffective assistance of counsel claims. Knowles, 556 U.S. at 111, 129 S.Ct. 1411. In Knowles, the Justices stressed that under the Strickland standard, the state courts have a great deal of “latitude” and “leeway,” which presents a “substantially higher threshold” for a federal habeas petitioner to overcome. Indeed, the question “is not whether a federal court believes the state court's determination” under the Strickland standard “was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Id. at ––––, 129 S.Ct. at 1420 (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007)).

The record is undisputed that Moeller's counsel did not actively participate in the DNA-related Daubert hearing. However, the South Dakota Supreme Court determined that Moeller's challenge to the DNA evidence related only to “APO–B DNA evidence,” and that, even if the APO–B DNA evidence had been excluded, the remaining DNA evidence showed that “the probability of a person in the Caucasian population having DNA characteristics common to Moeller's would be 1 in 130 million.” Moeller II, 689 N.W.2d at 10–11. Because Moeller submitted “no testimony or other evidence that might have led to the exclusion of any DNA evidence based on any marker other than the APO–B marker at the Daubert hearing,” Moeller did not “realistically demonstrate that the performance of his defense attorneys in regard to most of the DNA evidence was ineffective.” Id. at 10.

The South Dakota Supreme Court further found that Moeller's counsel's failure to participate in the Daubert hearing was a trial strategy and that counsel “vigorously” and “effectively” challenged all of the DNA evidence at trial, including the APO–B DNA evidence. Id. In particular, counsel cross-examined the State's DNA experts and secured critical admissions from those experts, called into question the validity of all of the DNA evidence in closing argument, and used the lack of validation of the APO–B DNA evidence to call into question all of the other DNA evidence. Id. Taking into consideration counsel's conduct during trial, the South Dakota Supreme Court applied Strickland and determined that counsel's strategy was reasonable and that Moeller suffered no prejudice as a result of his counsel's strategy. Id. at 10–11.

Moeller argues the South Dakota Supreme Court violated clearly established law when it considered counsel's handling of the DNA evidence during the entire trial, rather than only during the DNA-related Daubert hearing.FN6 We have found no clearly established law, nor has Moeller cited to any, that prevents a state court from considering counsel's entire performance at trial when determining his or her effectiveness at a pretrial evidentiary hearing. Granting substantial deference to the South Dakota Supreme Court's opinions, we find that it did not unreasonably apply Strickland and other clearly established federal law in rejecting Moeller's claim relating to the DNA Daubert hearing. FN6. Moeller also argues that the South Dakota Supreme Court violated clearly established federal law in applying Strickland, rather than United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), because the DNA Daubert hearing was a critical stage of the proceeding at which Moeller was effectively denied counsel. However, Moeller cites no clearly established federal law stating that a Daubert hearing is a critical stage of the proceeding, thus implicating a Cronic analysis, rather than a Strickland analysis. The South Dakota Supreme Court therefore did not violate clearly established federal law in applying Strickland to Moeller's ineffective assistance of counsel claim.

Regarding Moeller's other ineffective assistance of counsel claim, the South Dakota Supreme Court determined that counsel performed reasonably when they failed to test mineral evidence submitted by the State because they actively pursued another challenge to the mineral evidence. In particular, “defense counsel chose to proceed with a theory that the State's expert was mistaken in his conclusion that a soil analysis could isolate any locale in the eastern part of the State.... Proceeding under such a theory was neither unreasonable nor ineffective.” Id. at 11. As such, the South Dakota Supreme Court did not unreasonably apply clearly established federal law and no relief is warranted under 28 U.S.C. § 2254. FN7. Moeller's argument rests, in part, on evidence presented during the state habeas corpus proceedings that gahnite was not actually present in the sample tested by the State's expert. For a variety of reasons, the South Dakota Supreme Court rejected this argument, finding that the “newly discovered evidence” did not amount to a constitutional violation. Moeller II, 689 N.W.2d at 7–8. This is especially true because Moeller's counsel had the samples prior to the second trial, but reasonably chose not to test them, electing instead to proceed with its alternative theory that a soil analysis could not isolate any particular location in the eastern part of South Dakota. Id. The South Dakota Supreme Court's findings do not violate clearly established federal law, and to the extent Moeller's ineffective assistance of counsel claim rests on the “newly discovered” gahnite evidence, we reject it.

In addition to his ineffective assistance of counsel claims, Moeller argues that he is entitled to habeas corpus relief because the trial court ultimately admitted both the APO–B region of the DNA evidence and the expert testimony regarding gahnite. Applying federal law, the South Dakota Supreme Court rejected both of these claims. As to the admission of the APO–B region of DNA evidence, the South Dakota Supreme Court noted that the state habeas corpus court “effectively conducted what might be referred to as a ‘post-conviction’ Daubert hearing,” at which Moeller still failed to “convince the habeas court that the evidence based on the APO–B marker failed to meet

[South Dakota's] admission standards.” 689 N.W.2d at 12. Thus, while the APO–B DNA evidence “may not have satisfied every critic,” “perfect agreement is not a prerequisite to admission of scientific evidence.” Id. at 13–14.

Regarding the admission of the gahnite testimony, and the trial court's failure to conduct a Daubert hearing regarding that testimony, the South Dakota Supreme Court found that a May 1991 report mentioned gahnite as being of “substantial interest,” and that Moeller's counsel had therefore been placed “on notice that gahnite had been identified as a possible piece of evidence linking him to the crime scene.” Moeller I, 616 N.W.2d at 447. Thus, there was no “late disclosure.” Further, the South Dakota Supreme Court applied federal law and determined that a Daubert hearing was unnecessary because “the challenged evidence did not present any new scientific theory, and the methodologies were neither complex nor unusual,” and “there was no evidence in the record that Wehrenberg's methodology or analysis was so skewed as to alter the otherwise reliable scientific method.” Id. at 449. As with his ineffective assistance of counsel claim, we find that the South Dakota Supreme Court did not unreasonably apply clearly established federal law in rejecting both of Moeller's claims relating to the subsequent admission of evidence based on those claims.

V.

The South Dakota Supreme Court also rejected Moeller's remaining claims. Regarding Moeller's argument that he is entitled to habeas corpus relief because the State's DNA expert, Schanfield, conducted DNA testing for both him and the State, the South Dakota Supreme Court noted the “considerable conflict of authority as to under what circumstances an expert witness retained by one party will be allowed to testify upon request of the other party.” Moeller I, 616 N.W.2d at 444. Applying this conflicting law, the South Dakota Supreme Court determined that, “

[t]here was no abuse of discretion in admitting Schanfield's expert testimony, because both sides were aware that he was performing work for the other side. While we do not condone such practice by any witness, we see no prejudice.” Id. at 445.

The South Dakota Supreme Court also considered and rejected Moeller's final argument, that any aggravating circumstance must have been returned in an indictment or set forth in an information under South Dakota law.FN8 In doing so, that court applied federal law and determined that the eight-month “notice of aggravating factors given to Moeller was sufficient.” Moeller II, 689 N.W.2d at 21. Thus, “

[i]nsofar as Moeller had considerable advance notice of the aggravating factors to be considered in the sentencing phase of his case and the jury considered those factors and found them to exist beyond a reasonable doubt, Ring 's holding, if applicable, has been followed here.” Id. (citing Ring v. Arizona, 536 U.S. 584, 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)). FN8. Since Moeller did not brief this claim, he has waived it. Nonetheless, since the district court granted a certificate of appealability regarding the claim, we briefly address it.

After reviewing the record, and the South Dakota Supreme Court's opinions, we find that it did not violate clearly established federal law in making its determinations on these remaining claims. Additionally, Moeller has not submitted any clear and convincing evidence that the South Dakota Supreme Court's decisions were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Thus, Moeller is not entitled to relief under 28 U.S.C. § 2254 on these remaining claims. For the foregoing reasons, the judgment of the district court is affirmed.