Paul Ezra Rhoades #1277

Paul Ezra Rhoades

Executed November 18, 2011 9:15 p.m. by Lethal Injection in Idaho

43rd murderer executed in U.S. in 2011
1277th murderer executed in U.S. since 1976
1st murderer executed in Idaho in 2011
2nd murderer executed in Idaho since 1976

Since 1976 Date of Execution State Method Murderer
(Race/Sex/Age at Murder-Execution) Date of
Birth Victim(s)
(Race/Sex/Age at Murder) Date of
Murder Method of
Murder Relationship
to Murderer Date of
Sentence

1277
(43)
11-18-11 ID Lethal Injection Paul Ezra Rhoades
W / M / 30 - 54
01-18-57 Stacy Dawn Baldwin
W / F / 21
Nolan Haddon
W / M / 23
Susan Michelbacher
W / F / 34 02-28-87

03-17-87

03-19-87 Handgun None 05-13-88

1988

05-24-88

Summary:
Rhoades was convicted in three separate kidnapping and murder cases. For the murders of Susan Michelbacher and Stacy Baldwin, Rhoades was sentenced to death, and for the murder of Nolan Haddon he received an indeterminate life sentence based on a guilty plea. On February 28, 1987, 21 year old Stacy Dawn Baldwin was abducted while working at the Red Mini Barn convenience store in Blackfoot. She was then taken to a secluded location and shot several times. She died approximately an hour and a half later. On March 17, 1987, Nolan Haddon, a 23 year old student, was shot five times while working at Buck's convenience store in Idaho Falls. His body body was found in the store's walk-in cooler. On March 19, 1987 - Susan Michelbacher, 34, a special education teacher, was abducted in a parking lot at 7 a.m., forced to withdraw money from her checking account, driven to a rural location, raped and shot nine times, resulting in her death.

Rhoades was a high school dropout who began drinking at the age of 10, suffered polio as a child, and developed a serious methamphetamine addiction as an adult.

Citations:
State v. Rhoades, 120 Idaho 795, 820 P.2d 665 (Idaho 1991). (Baldwin Direct Appeal)
State v. Rhoades, 121 Idaho 63, 822 P.2d 960 (Idaho 1991). (Michelbacher Direct Appeal)
State v. Rhoades, 135 Idaho 299, 17 P.3d 243 (Idaho 2000). (Baldwin PCR)
State v. Rhoades, 148 Idaho 247, 220 P.3d 1066 (Idaho 2009). (Haddon PCR)
Rhoades v. Henry, 638 F.3d 1027 (9th Cir. 2011). (Baldwin Habeas)
Rhoades v. Henry, 598 F.3d 511 (9th Cir. 2010). (Haddon Habeas)
Rhoades v. Henry, 611 F.3d 1133 (9th Cir. 2010). (Michelbacher Habeas)

Final/Special Meal:
Rhoades was offered hot dogs, sauerkraut, mustard, ketchup, onions, relish, baked beans, veggie sticks, ranch dressing, fruit with gelatin and strawberry ice cream cups — the same meal that was offered to all Idaho Maximum Security inmates.

Final Words:
"To Bert Michelbacher, I am sorry for the part I played in your wife's death. For Haddon and Baldwin, I can't help you. You still have to keep looking. I'm sorry for your family. I can't help you. I took part in the Michelbacher murder, I can't help you guys. I'm sorry." Rhodes then told his mom "goodbye." He then turned to the executioner or the warden and uttered, "I forgive you, I really do."

Internet Sources:

Ihado Statesman

"Idaho executes inmate for 1987 slayings," by Rebecca Boone. (11/18/11)

BOISE, Idaho — Idaho prison officials executed Paul Ezra Rhoades on Friday for his role in the 1987 murders of two women, marking the state's first execution in 17 years.

Rhoades, 54, was declared dead at 9:15 a.m. at the Idaho Maximum Security Institution after being administered three separate drugs that make up the state's new lethal injection protocol. In his final words, Rhoades apologized for one of the murders, bid goodbye to his mother, and forgave state officials for the execution. "I forgive you. I really do," he said.

The execution was witnessed by representatives of all three of the victims' families, Rhoades' mother, Pauline Rhoades, and four members of Idaho media. It appeared to go according to protocol, witnesses said. Rhoades delivered his final statement while lying on his back, strapped to a table. He seemed antsy, occasionally tapping his hand on the table. In a clear, loud voice, Rhoades apologized to Michelbacher's husband for her murder but did not take responsibility for the other two slayings. "To Bert Michelbacher, I'm sorry for the part I played in your wife's death," he said. Michelbacher did not attend the execution; but friends of the Michelbacher family were in attendance. "For Haddon and for Baldwin, you still have to keep looking. I can't help you," Rhoades said. "I'm sorry for your family. I can't help you."

After that statement, Baldwin's brother quietly said, "He lied the whole way through." Julie Haddon, Nolan Haddon's mother, commented, "What a coward." The time from initial injection to declaration of death was 22 minutes.

Brian Edgerton, a long-time family friend of the Michelbachers, told the AP after the execution that he felt a sense of relief, as well as continued grief over Susan Michelbacher's murder. He helped search for Michelbacher after she was reported missing, and said that everyone who knew her was devastated. "It's amazing how much is still there after all this time," Edgerton said. "A psychologist said there's always going to be a gnawing pain - it never completely heals. This helps a lot to move on and do the best we can to go forward." The other victims' family members seemed to feel the same way, he said. "I think that was felt by several of the families - a sense of peace and closure," Edgerton said.

Rhoades' attacks on Michelbacher, Baldwin and Haddon were brutal and his death was long overdue, Edgerton said, calling the execution "the appropriate, compelling and lawful consequence of these heinous crimes." The killings of Michelbacher, Baldwin and Haddon occurred during a three-week span in the winter of 1987. Prosecutors said Rhoades snatched Michelbacher, a special education teacher, into his van, raped her, shot her nine times and continued the sexual assault either as she lay dying or after she was already dead. Baldwin died in similar fashion. The newlywed and convenience store worker was abducted at gunpoint and taken to a remote area where prosecutor said he intended to sexually assault her. She fought back, and as she was scrambling away on all fours, he shot her twice and left her to die alone in the snow. Haddon also worked at a convenience store. He had long hair, and investigators speculated that Rhoades may have mistaken him for a young woman because of his blond locks. In any case, Rhoades robbed the convenience store, shooting Haddon five times and leaving him for dead in a walk-in cooler. Haddon died several hours later.

Rhoades, an Idaho Falls native, was the first Idaho inmate to be executed since 1994 and the only person to be involuntarily put to death in the state since 1957. The last inmate to be executed gave up all of his remaining appeals and asked the state to carry out his lethal injection.

The execution was the target of protests by capital punishment activists outside the prison south of Boise. Early Friday, about 50 people braved the cold and wind to protest at the prison's entrance. Some of them sat on the ground in silence, while others prayed collectively and waved signs with messages such as "What Would Jesus Do?" Across the street, about a half-dozen people gathered in a fenced-off area designated for supporters of the death penalty.

Rhoades admitted committing the murders, but he and his lawyers have vigorously appealed his case and Idaho's new execution protocols and procedures. On Thursday, the 9th U.S. Circuit Court of Appeals denied a request for a full judge's panel to review their appeal, and Rhoades' attorneys also filed a last-ditch appeal to the U.S. Supreme Court. The high court cleared the way for the state to proceed.

A section of the state's protocol that barred media witnesses from viewing the first part of the execution was also subject to a separate challenge. Under the state's procedure, media witnesses were not allowed to see the execution team bring Rhoades into the chamber, secure him or insert the IVs. Media cited a 2002 California case in which the 9th U.S. Circuit Court ruled the public - through media representatives - had a First Amendment right to view an execution in its entirety. The Department of Correction rejected requests from various Idaho newspapers, The Associated Press and broadcast groups to change the policy in the days leading up to the execution.

Rhoades, who is a diabetic, was in fair health during his final days, though he was anxious about the coming execution, said Ray, the corrections spokesman. The department planned to cremate his body after the execution and give the remains to Rhoades' attorney, Oliver Loewy.

Rhoades was a high school dropout who began drinking at the about the age of 10, suffered polio as a child and developed a serious methamphetamine addiction as an adult.

Ihado Statesman

"Rhoades defiant to the end; Paul Rhoades apologized for one murder but told the other two families, ‘I can’t help you.’ by Rebecca Roone. (ASSOCIATED PRESS 11/19/11)

Idaho prison officials executed Paul Ezra Rhoades on Friday for his role in the 1987 murders of two women, marking the state’s first execution in 17 years. Rhoades, 54, was declared dead at 9:15 a.m. at the Idaho Maximum Security Institution after being administered the three drugs that make up the state’s new lethal injection protocol. In his final words, Rhoades said he was sorry for one of the murders, bid goodbye to his mother and forgave state officials for the execution. “I forgive you. I really do,” he said.

Rhoades was convicted in the kidnapping and murders of 34-year-old Susan Michelbacher and 21-year-old Stacy Dawn Baldwin. He was also sentenced to life in prison for the murder of 20-year-old Nolan Haddon. The execution was witnessed by representatives of all three of the victims’ families; Rhoades’ mother, Pauline Rhoades; and four Idaho reporters. It appeared to go according to protocol, witnesses said.

A CLEAR VOICE

Rhoades delivered his final statement while lying on his back, strapped to a table. He seemed antsy, occasionally tapping his hand on the table. In a clear, loud voice, Rhoades apologized to Michelbacher’s husband for her murder but did not take responsibility for the other two slayings. “To Bert Michelbacher, I’m sorry for the part I played in your wife’s death,” he said. Michelbacher did not attend the execution, but friends of the Michelbacher family were in attendance. “For Haddon and for Baldwin, you still have to keep looking. I can’t help you,” Rhoades said. “I’m sorry for your family. I can’t help you.”

After that statement, Baldwin’s brother quietly said, “He lied the whole way through.” Julie Haddon, Nolan Haddon’s mother, commented, “What a coward.” The time from initial injection to declaration of death was 22 minutes.

Brian Edgerton, a long-time family friend of the Michelbachers’, told the AP after the execution that he felt a sense of relief, as well as continued grief over Susan Michelbacher’s murder. He helped search for Michelbacher after she was reported missing, and said that everyone who knew her was devastated. “It’s amazing how much is still there after all this time,” Edgerton said. “A psychologist said there’s always going to be a gnawing pain — it never completely heals. This helps a lot to move on and do the best we can to go forward.” The other victims’ family members seemed to feel the same way, he said. “I think that was felt by several of the families — a sense of peace and closure,” Edgerton said.

‘HEINOUS CRIMES’

Rhoades’ attacks on Michelbacher, Baldwin and Haddon were brutal, and his death was long overdue, Edgerton said, calling the execution “the appropriate, compelling and lawful consequence of these heinous crimes.” The killings of Michelbacher, Baldwin and Haddon occurred during a three-week span in the winter of 1987. Prosecutors said Rhoades snatched Michelbacher, a special education teacher, into his van, raped her, shot her nine times and continued the sexual assault either as she lay dying or after she was already dead. Baldwin died in similar fashion. The newlywed and convenience store worker was abducted at gunpoint and taken to a remote area where prosecutors said he intended to sexually assault her. She fought back, and as she was scrambling away on all fours, he shot her twice and left her to die alone in the snow. Haddon also worked at a convenience store. He had long hair, and investigators speculated that Rhoades may have mistaken him for a young woman because of his blond locks. In any case, Rhoades robbed the convenience store, shooting Haddon five times and leaving him for dead in a walk-in cooler. Haddon died several hours later.

VIGOROUS APPEALS

Rhoades, an Idaho Falls native, admitted committing the murders, but he and his lawyers vigorously appealed the case and Idaho’s new execution protocols and procedures. On Thursday, the 9th U.S. Circuit Court of Appeals denied a request for a full judge’s panel to review their appeal, and Rhoades’ attorneys also filed a last-ditch appeal to the U.S. Supreme Court. The high court cleared the way for the state to proceed. The last inmate to be executed in Idaho, in 1994, gave up all of his remaining appeals and asked the state to carry out his lethal injection. A section of the state’s protocol that barred media witnesses from viewing the first part of the execution was also subject to a separate challenge. Under the state’s procedure, media witnesses were not allowed to see the execution team bring Rhoades into the chamber, secure him or insert the IVs.

FIRST AMENDMENT RIGHT TO VIEW DEATH

Media cited a 2002 California case in which the 9th U.S. Circuit Court ruled the public — through media representatives — had a First Amendment right to view an execution in its entirety. The Department of Correction rejected requests from the Statesman and other Idaho newspapers, The Associated Press and broadcast groups to change the policy in the days leading up to the execution. Rhoades, who was a diabetic, was in fair health during his final days, though he was anxious about the coming execution, said Correction Department spokesman Jeff Ray. The department planned to cremate his body after the execution and give the remains to Rhoades’ attorney, Oliver Loewy.

Rhoades was a high school dropout who began drinking at about the age of 10, suffered polio as a child and developed a serious methamphetamine addiction as an adult.

Ihado Statesman

"Rhoades' last hours; Idaho's first execution in 17 years set for Friday." (11/18/11)

Twenty-four years after Idaho sentenced him to death, Paul Ezra Rhoades is slated to die today by lethal injection at 8:10 a.m. Here is what we know about his final days.

Lawyers for the Death Row inmate asked the U.S. Supreme Court Thursday to stop the execution. That request was denied. Rhoades will be the first person executed in Idaho since 1994 and the only one to be put to death against his will since 1957 — the year he was born.

The Department of Correction gave these details Thursday:

LAST MEAL: Rhoades was offered hot dogs, sauerkraut, mustard, ketchup, onions, relish, baked beans, veggie sticks, ranch dressing, fruit with gelatin and strawberry ice cream cups — the same meal that was offered to all Idaho Maximum Security inmates Thursday night.

VISITORS: He was able to have family members visit until 8:30 p.m. and make phone calls until 9 p.m. His attorney, Oliver Loewy, and his spiritual adviser may be with him until 6 a.m. The adviser asked IDOC not to identify him.

CARD: All but one of the other Death Row inmates signed a card for Rhoades.

CREMATION: Rhoades’ body will be cremated and his remains given to his attorney.

WITNESSES: Representatives from all three of the victims’ families will attend the execution. IDOC is not disclosing their identities.

FAMILY: Rhoades’ mother will attend the execution.

CONDITION: Rhoades’ health is fair, his demeanor anxious and lucid.

ACTIVITIES: Rhoades has been watching TV, reading and doing artwork. He has been talkative with his family, attorney, spiritual adviser and the correctional officers who are monitoring him.

Idaho Department of Correction

Rhoades' Death Warrant Carried Out

BOISE, November 18, 2011 – Director Brent Reinke made the following statement to the media following today’s execution procedures. “Today, the Idaho Department of Correction carried out the court-order death warrants issued against Paul Ezra Rhoades for the crimes of first-degree murder and first degree kidnapping in Bonneville and Bingham counties. Paul Ezra Rhoades was pronounced dead at 9:15 a.m.”

Biographical information

Sex: male
Height: 6’ 2”
Weight: 259 lbs
Eyes: hazel
Hair: brown
Ethnicity: white
Complexion: fair
Birth date: 01/18/1957
Birthplace: Idaho Falls, ID

Rhoades' Case Summary

On January 26, 1988, Paul Ezra Rhoades, IDOC #26864, was found guilty in the 7th Judicial District Court for Bonneville County of the crimes of first degree murder and first degree kidnapping.

On March 4, 1988, the 7th Judicial District Court for Bonneville County made and entered its findings of the Court in considering the death penalty, finding that Rhoades is guilty of murder in the first degree and kidnapping in the first degree and imposing the sentence of death.

On March 11, 1988, Rhoades was found guilty in the 7th Judicial District Court for Bingham County of the crimes of first degree murder and first degree kidnapping.

On May 13, 1988, the 7th Judicial District Court for Bingham County made and entered its findings of the Court in considering the death penalty, finding that Rhoades is guilty of murder in the first degree and kidnapping in the first degree and imposing the sentence of death.

On October 11, 2011, the U.S. Supreme Court refused to hear Rhoades' case.

On October 19, 2011, the IDOC served Rhoades with a death warrant as ordered by Seventh District Judge Jon J. Shindurling. The warrant ordered that Rhoades be executed on November 18, 2011.

On November 4, 2011, the Idaho Commission of Pardons and Parole decide to deny the petition for a commutation hearing submitted on behalf of Rhoades.

On November 14, 2011, a U.S. Magistrate Judge denied a stay of execution.

On November 16, 2011, the 9th Circuit Court of Appeals denied an emergency stay.

On November 18, 2011, Rhoades was executed by lethal injection.

Planned schedule for November 18, 2011
4:00 a.m. Media center opens to pre-approved news media personnel
5:45 a.m. Selection of news media witnesses
6:00 a.m. Short news media briefing by IDOC Director Brent Reinke
7:00 a.m. IDOC van available for transport to demonstration area
7:15 a.m. News media witnesses transported to Idaho Maximum Security Institution
7:20 a.m. Offender is moved from isolation cell to execution chamber
7:30 a.m. IDOC van returns from demonstration area
7:45 a.m. Witnesses are escorted into execution chamber
8:00 a.m. IMSI’s warden reads death warrant to offender and witnesses
8:03 a.m. Warden asks offender if he wishes to make a final statement
8:07 a.m. IDOC’s director re-confirms that no legal impediments exist
8:10 a.m. Administration of chemicals begins
8:30 a.m. Coroner enters chamber, examines the condemned and pronounces death
9:30 a.m. News media briefing by IDOC Director Brent Reinke and media witnesses
10:30 a.m. Demonstration area closes
1:00 p.m. Media center closes

KTVB

Paul Ezra Rhoades: Timeline

February 28, 1987 - Stacy Baldwin, 21, was shot after being abducted while working at the Red Mini Barn convenience store in Blackfoot. She put up a fight as Rhoades tried to sexually assault her. He shot her in the back as she was running away.

March 17, 1987 - Nolan Haddon, 23, was shot while working at Buck's convenience store in Idaho Falls. He was a student at a technical-vocational school. Haddon's body was found in the store's walk-in cooler.

March 19, 1987 - Susan Michelbacher, 34, was abducted in grocery store parking lot at 7 a.m., raped and shot to death.

March 25, 1987 - Paul Ezra Rhoades crashed his mother's car near Wells, Nevada, and walked to a nearby casino. Inside his car, police found the weapon and the same bullets used in the three murders. Detectives located Rhoades, playing blackjack in a casino.

March 24, 1988 - Rhoades was sentenced to death for the murder of Susan Michelbacher by Seventh District Judge Larry M. Boyle.

May 13, 1988 - Rhoades was sentenced to death by Seventh District Judge James Herndon for the murder of Stacy Baldwin.

February 15, 1991 - The Idaho Supreme Court affirmed Rhoades' conviction and sentence in the Baldwin murder.

November 14, 1991 - The Idaho Supreme Court affirmed Rhoades' conviction and sentence.

May 24, 2007 - U.S. District Judge Edward Lodge denied Rhoades' petition for a writ of habeas corpus.

February 9, 2011 - The 9th Circuit Court of Appeals denied Rhoades' petition for rehearing in the Baldwin case.

October 11, 2011 - The United States Supreme Court denied Rhoades' petition for certiorari.

Nov. 15, 2011: Attorneys for Rhoades filed an emergency appeal to the 9th U.S. Circuit Court of Appeals, claiming that Idaho's new lethal injection protocol is likely to be botched, causing him to suffer excruciating pain in violation of the 8th Amendment.

Nov. 16, 2011: The 9th U.S. Circuit Court of Appeals denies Rhoades' plea to stop the scheduled execution of Rhoades. His lawyer argued Idaho's new lethal injection policy is flawed and results in cruel and unusual punishment.

Ihado Statesman

Kevin Richert: "Paul Ezra Rhoades’ last hurtful words," by Kevin Richert. (11/19/11)

In his last moments on the planet — 24 years removed from a three-week spree of unspeakable murderous violence — Paul Ezra Rhoades seized upon his one final chance to inflict harm upon his victims’ loved ones. Rhoades accepted blame for his role in the killing of Susan Michelbacher, an Idaho Falls schoolteacher. His role, implying he did not act alone in her abduction, rape and shooting. He said the families of Stacy Dawn Baldwin and Nolan Haddon need to keep looking for a killer. P>Rhoades managed to say he forgave the state workers who were about to inject him with a cocktail of lethal drugs. His mercy, still, never extended to the families of his victims. Even in his final, hurtful moments. Final moments that are given added weight, and added public attention, when we as a society choose to carry out the death penalty. Idaho did not kill an innocent man Friday. On that, I have no doubt. Even as one who opposes the death penalty, I can’t feel sadness for Rhoades’ death. I do feel sadness for the platform that execution affords Rhoades. I also don’t think you can blame the media for broadcasting Rhoades’ words. The friends and family members who witnessed Rhoades’ execution heard it for themselves.

Wherever you stand on the death penalty, it’s impossible not to feel first for those who knew and loved Rhoades’ victims. That, it seems, is simply a prerequisite to being a member of the human race. I cannot begin to imagine what they have endured for 24 years, nor would I ever want to. It’s no one’s place to judge whether they are feeling, to use the overused phrase, a sense of closure. I only feel sorrow for them, especially in light of what they had to hear Friday morning.

AND MEANWHILE, ON THE MAINLAND ...

Before Idaho carried out its first execution in 17 years, Gov. Butch Otter had spent much of the week in Maui at a conference. Bankrolled by the California Independent Voter Project, attendees at the Maui “Business and Leader Exchange” discussed presidential politics, reported Betsy Russell of the Spokane Spokesman-Review. The conference was held at the Fairmont Kea Lani Resort, she wrote, “a beachfront spread with three swimming pools, a 140-foot water slide and an array of luxury amenities.”

Back in Idaho, Otter released this statement Friday: “My thoughts and prayers are with the victims, their loved ones, the mother of Paul Ezra Rhoades and everyone who has been impacted by these crimes. Mr. Rhoades took full and unfettered advantage of his right to due process of law for more than 20 years. That process has run its course and Mr. Rhoades has been held accountable for his actions. The state of Idaho has done its best to fulfill this most solemn responsibility with respect, professionalism and most of all dignity for everyone involved.”

Nice of Otter to check in. This execution was the first to occur under the governor’s watch; an event of such magnitude should supercede a conference in Hawaii.

KMVT

"Idaho inmate Paul Ezra Rhoades executed," by Jay Michaels. (Updated: Nov 19, 2011 at 12:48 AM MST)

BOISE, ID (KMVT) This morning the first person to be executed in Idaho in 17 years received a lethal injection and died at the State Penitentiary south of Boise. The inmate in question was charged with three Southeastern Idaho murders almost 25 years ago.

Paul Ezra Rhoades was sentenced to death for the 1987 kidnapping and murders of 34 year old Susan Michelbacher and 21 year old Stacy Dawn Baldwin. Following the 1987 murder of 20 year old Nolan Haddon, Rhoades was also sentenced to life in prison without parole. At 9:15 a.m. this morning Rhoades, now 54 years old, was the first person executed in Idaho since 1994 and the only person to be involuntarily put to death in the state since 1957, the year he was born.

Local resident Dave Sylvester says, "I don't look at it as punishment. I just figure that person is so miserable, sitting there. I think that I would choose the death sentence, if it came down to it for myself." Pastor Pedro Contreres says, "To me 20, 30, 50 years or maybe lifetime in prison, isn't that enough? The person can repent, and turn their life for the good one."

Local viewers also posted comments on KMVT's Facebook page, as well. Jennifer says, "If it had been your mother, sister, wife, or girlfriend, you would want justice. Him in a prison cell with tv and free food is not justice." Ivan says, "I don't want to keep paying for repeat offenders to get another chance to do the right thing. I've been through the system and I had help. The difference is I took the help I was given and made something of myself!" And Sarah says, "Life is harder because life is something you have to deal with. ...Don't get me wrong, he got what he deserved, but he also got it easy."

KTVB

"Rhoades addresses the victims' families, his mother, and executioners in final statement," by Kelsey Jacobson. (Saturday, Nov 19 at 8:53 AM)

BOISE -- Paul Ezra Rhoades was confirmed dead at 9:15 a.m. Friday. Rhoades was killed by a lethal injection administered at 9:05 a.m.

The delay

The execution was scheduled to take place at 8 a.m. That was delayed after a motion was filed in court at 3 a.m. Friday. It took about a half hour for the motion to be reviewed. Shortly after that review, the Idaho Department of Corrections announced the execution would take place at 9:05 a.m., 55 minutes late. "It was occasioned by a motion of stay that was filed at about 3 a.m. this morning," said Attorney General Lawrence Wasden following the time of death announcement. "At about 8 o'clock this morning, the state district court judge in Ada County issued a denial of that stay and the matter was able to proceed." Rhoades was convicted of murder in 1987. He admitted to police he killed Susan Michelbacher, 34, and Nolan Haddon, 20.. He was also convicted in the murder of Stacy Baldwin, 21. He was sentenced in 1988.

Witness testimonials

The media representatives who witnessed the execution reported what they had seen in the execution chamber. Rebecca Boone is a reporter with the Associated Press. She described Rhoades' last words. "Perhaps the most noteworthy thing was Mr. Rhoades' final statement. He apologized for the Michelbacher murder but did not take responsibility for the other two murders," said Boone. "He said, to Bert Michelbacher, 'I'm sorry for the part I played in your wife's death. For Haddon, you still have to keep looking. I can't help you, I'm sorry for your family. I can't help you, I took part in the Michelbacher death, I can't help you guys, sorry.'"

Boone continued to describe his final statement, "He continued, he faced the section that contained his representatives, and he said 'Mom, goodbye,' and then he turned and faced the warden Randy Blades and said, 'You guys, I forgive you, I really do.' And that was the end of his statement for the evening."

KIVI's Mac King also witnessed the execution. He said the entire thing was done very professionally, "The whole thing was incredibly sterile, with the exception of his statement. Everyone was very professional. Double and triple checking every step of the process and sterile is the best adjective or word I can put with the entire thing." He also mentioned what the mood was like in the room when Rhoades made his statement and once the death was announced, "There were some tears on their part, they didn't really react when they did the statement but after he was pronounced dead there was definitely relief."

Nate Green with the Idaho Press Tribune was the third witness to address the media. He described what he thought was one of the most emotional parts of the execution. "It was very quiet and somber, quiet throughout. Towards the end, one gentlemen, apparent friend of Michelbachers, said, 'The devil has gone home.' That was very emotional."

The process

Following witness testimonies, Ada County Coroner Erwin Sonnenberg talked about the process. He was present for Rhoades' execution Friday, as well as the 1994 execution of Eugene Wells. "What I saw is what I would've expected," Sonnenberg described. "We're 27 years later, the first was done professional, as far as start to finish. Process was very much the same. What you expect to see different, is the changes in technology that have been implemented that were not available back then. It made it a lot better process because of technology, for my role in pronouncing the death, and seeing that everything went smoothly."

Sonnenberg continued describing the process, "We're monitoring the heart, you're seeing, as the different drugs are injected, you're seeing the heart respond accordingly to those drugs. Until you finally have the last drug administered, which would end up giving a flatline, and they run flatline for a few minutes to see if anything else was going on. Basically, we're just monitoring the heart, and how it's responding to the meds, and they responded just as we expected."

Finding closure

Following the execution, the mother of one of Rhoades' victims spoke with KTVB over the phone. Julie Haddon, mother of Nolan, said she feels relieved and is glad they are through having to hear about her son's murderer. "The only thing that bothered me was when he couldn't help the Baldwill family because he didn't do it," said Haddon. "I was stunned. I don't know why, why would I expect anything better out of him." Haddon also described what it was like being surrounded by the other victims' families. "It was quite comforting in a way, they were all very nice people. We got to visit with and express our feelings together. It was good."

Tom Moss was the lead prosecutor in Bingham County at the time of the murders. He said he was not surprised with how the execution went and he does not have much reaction to what happened. "I know what the evidence was, I feel very comfortable that he pleaded guilty to killing Nolan Haddon," said Moss. "There's no doubt in my mind that he killed Stacy Baldwin." Moss was asked if he believes in the death sentence. He said the facts in a case determine whether a prosecutor seeks the death penalty, and in this case it was warranted, "Nothing brings total justice. It doesn't bring their loved ones back."

He added that he has tried other death penalty cases, but this is the first one to bring a certain amount of closure, "This case is closed."

KTVB

"Mother of victim reacts to Rhoades' execution," by Justin Corr. (Friday, Nov 18 at 10:16 PM)

BOISE -- It's been 24 years since Julie Haddon received the news that her son was killed by Paul Ezra Rhoades. Friday, Rhoades was put to death and Haddon said justice was done. Nolan Haddon died on March 17, 1987 when Paul Ezra Rhoades came into the convenience store Haddon was working at and shot the 20-year-old five times.

Friday, with Nolan on her mind, Julie Haddon saw her son's killer for the first time in more than two decades. "Probably 22 or 23 years ago I saw him at a hearing in Idaho Falls," she said. "Been a long, long time." But this time, Rhoades was strapped down on a table, about to be executed for his crimes. Watching with Julie was her husband, Junior, and other family members of Rhoades' victims. "It was quite comforting, in a way," said Haddon. "They were all very nice people. We got to visit and express our feelings together. It was good."

Before the lethal injections were given, Rhoades said his final words. "He said that he couldn't help the Haddons and the Baldwin family, because he didn't do it," said Haddon. "I was stunned, but I don't know why. Why would I expect anything better out of him?" Then, it ended -- the execution, and the 24-year ordeal for Julie and other family members of Rhoades' victims. "I actually feel good about it," said Haddon. "I didn't know how I was going to feel, but it isn't bothering me. I feel relieved. I'm glad it's over. I'm glad we're through having to hear about him. Justice has finally been served."

Julie and her husband went back to eastern Idaho on Friday. She said it will be nice to not have worry about Rhoades or his court proceedings ever again.

KTVB

"Governor Otter releases statement on Rhoades' execution." (Posted on November 18, 2011 at 11:28 AM)

Governor C.L. "Butch" Otter released this statement today following the execution of Paul Ezra Rhoades: "My thoughts and prayers are with the victims, their loved ones, the mother of Paul Ezra Rhoades and everyone who has been impacted by these crimes. Mr. Rhoades took full and unfettered advantage of his right to due process of law for more than twenty years. That process has run its course and Mr. Rhoades has been held accountable for his actions. The State of Idaho has done its best to fulfill this most solemn responsibility with respect, professionalism and most of all dignity for everyone involved."

KTVB

Inmates Currently on Idaho's Death Row

Azad Abdullah Arrived: November 2004 Convicted of 1st degree murder for the arson death of his wife in Ada County.

David Card Arrived: September 1989 Shooting deaths of two people in Canyon County.

Thomas Creech Arrived: January 1983 Beating death of an inmate in Ada County

Timothy Dunlap Arrived: April 1992 Convicted of 1st degree murder for killing a woman during a bank robbery in Caribou County.

Zane Fields Arrived: August 1991 Convicted of 1st degree murder for a stabbing death in Ada County.

James Hairston Arrived: November 1996 Convicted of 1st degree murder for two shooting deaths in Bannock County

Erick Hall Arrived: October 2004 Convicted of two counts of 1st degree murder for raping and killing two women in Ada County in 2000 and 2003.

Michael Jauhola Arrived: May 2001 Convicted of 1st degree murder for the 2001 beating death of a fellow inmate.

Richard Leavitt Arrived: December 1985 Convicted of 1st degree murder for a mutilation and stabbing death in Bingham County.

Darrell Payne Arrived: May 2002 Convicted of 1st degree murder for the death of a woman in Ada County

Gerald Pizzuto Arrived: May 1986 Convicted of 1st degree murder for beating to death two people in Idaho County.

Paul Rhoades Arrived: March 1988 Convicted of 1st degree murder for kidnapping and raping two women in Bonneville County. Convicted of 1st degree murder and kidnapping in Bingham County.

Robin Row Arrived: December 1993 Convicted of 1st degree murder for the arson deaths of her husband, son and daughter in Ada County.

Lacey Sivak Arrived: December 1981 Convicted of 1st degree murder for killing gas station attendant during a robbery.

Gene Stuart Arrived: December 1982 Convicted of 1st degree murder for the beating death of a three-year-old boy in Clearwater County.

The Spokeman Review

"Triple killer Rhoades executed in Idaho," by Betsy Z. Russell. (November 18, 2011)

BOISE - Triple murderer Paul Ezra Rhoades was executed this morning despite repeated last-minute appeals, in Idaho’s first execution since 1994 and only its second since 1957. “The execution of Paul Ezra Rhoades has been carried out in the manner that was prescribed by law in the state of Idaho,” state Corrections Director Brent Reinke said. “Death of the prisoner was pronounced at 9:15 a.m.”

In his final words, Rhoades took responsibility for one of the murders, but not the other two. A friend of the family of one of the victims, who was in the chamber witnessing the execution, said, “The devil has gone home.” Another family member commented, “What a coward.”

Unlike the last person executed in Idaho, double murderer Keith Eugene Wells, who dropped all appeals and asked to be put to death, Rhoades pursued every appeal possible, including a last-ditch appeal to the U.S. Supreme Court the night before his execution. None worked. Rhoades earlier admitted his crimes, which terrorized an eastern Idaho community for three weeks in 1987. His appeals have focused mostly on technicalities and on his abusive childhood and drug addiction. He said he had changed in his quarter-century in prison. He also challenged Idaho’s lethal-injection execution method as cruel.

Rhoades received the death sentence for the kidnappings and murders of 34-year-old Susan Michelbacher and 21-year-old Stacy Dawn Baldwin in 1987. He also was sentenced to life in prison without parole for the 1987 murder of 20-year-old Nolan Haddon, to which he pleaded guilty.

Associated Press reporter Rebecca Boone, who witnessed the execution, said Rhoades, after apologizing for the Michelbacher murder, said to the families of his other two victims, “I can’t help you guys, sorry.” She said a family member of one of the victims said, “He’s been lying the whole way through.”

Rhoades, lying on his back strapped to a gurney with IVs running to deliver the drugs that would kill him, said, “‘Mom, goodbye,’ then he turned and faced the warden, Randy Blades, and said, ‘You guys, I forgive you, I really do,’” Boone reported.

ABC Channel 6 reporter Mac King said, “The whole thing was incredibly sterile, with the exception of his statement. Everyone was really professional.” King said there were “some tears” from the victims’ families. King was among four reporters who witnessed the execution on behalf of the public.

About 45 people gathered in a circle in the freezing darkness outside Idaho’s state prison complex early in the morning to protest capital punishment, as the clock ticked toward the time for Rhoades to die by lethal injection. “This is a heartbreaking morning,” said Mia Crosthwaite of Idahoans Against the Death Penalty.

Reinke, asked about Rhoades’ demeanor prior to the execution proceedings, said, “He’s very serious. He understands what is about to happen. His spiritual adviser and his attorney have been with him throughout the night.” Addressing the media in the chill of the early morning, Reinke said, “The law requires and justice demands that Mr. Rhoades be held accountable. … Today we carry out the execution order.” All Idaho state prisons, statewide, were on lockdown and high alert during the execution proceedings, Reinke said.

Tom Moss, who prosecuted Rhoades in 1987 and later served as U.S. attorney for Idaho, said after the execution, “Nothing brings total justice. They don’t get their loved ones back. But it brings some satisfaction to them.” He said, “I’ve often said I don’t think I will live to see anybody executed. So there’s a certain amount of closure to see one of ‘em get executed. … There is satisfaction to see finally the law comes to its conclusion, it’s done. These families don’t have to read any more in the paper about there’s something going on with Paul Rhoades. … This case is closed.”

ProDeathPenalty.Com

Paul Ezra Rhoades had been loitering around convenience stores in the Blackfoot and Idaho Falls area, including the Red Mini Barn in Blackfoot. Stacy Baldwin worked at the Red Mini Barn and began her night shift around 9:45 p.m. on February 27, 1987. Some time before 11:00 p.m., Carrie Baier and two other girls rented videos at the Mini Barn from Stephanie Cooper, Baldwin’s co-worker. Cooper’s shift ended at 11:00 p.m, which left Baldwin alone.

When Baier returned around midnight, she noticed a man leave the store, get into a pickup truck (it turned out to be one used by the Rhoades family), and drive recklessly toward her. Baier saw a passenger next to the driver, but neither she nor her friends could identify the driver or the passenger. Baier went into the Mini Barn but could not find Baldwin, though Baldwin’s coat was still there and her car was outside. The last recorded transaction at the store was at 12:15 a.m. $249 was missing from the cash register. Rhoades and another male had coffee at Stan’s Bar and Restaurant, near the Mini Barn, sometime between 1:30 a.m. and 2:00 a.m. on February 28. Baldwin’s body was found later that morning near some garbage dumpsters on an isolated road leading to an archery range. She had been shot three times.

According to a pathologist, Baldwin died from a gunshot wound to the back and chest, but may have lived for an hour or so after the fatal shot was fired. On March 22 or 23, Rhoades’s mother reported her green Ford LTD had been stolen. Rhoades was seen driving a similar looking LTD on March 22, and on March 24, truckers saw the LTD parked on a highway median in Northern Nevada. They also saw a person matching Rhoades’s description lean out of the car, fumble with a dark brown item, and run off into the sagebrush. A Nevada trooper responding to the scene found a .38 caliber gun on the ground near the open door of the car, and a holster about forty-five feet away. Ballistics testing would show that this weapon had fired the bullets that killed Baldwin.

Rhoades turned up about 11:00 in the morning of March 25 at a ranch a mile and a half from where the LTD was found. Later that day, he got a ride from the ranch to Wells, Nevada, where he was dropped off at the 4 Way Casino around 9:00 p.m. Nevada law enforcement officers arrested Rhoades while he was playing blackjack. They handcuffed him, set him over the trunk of the police car, and read him his Miranda rights. Meanwhile, Idaho authorities were alerted to a Rhoades connection when the LTD was discovered. They had previously obtained a warrant for Rhoades’s arrest for burglary of Lavaunda’s Lingerie, and arrived at the 4 Way Casino shortly after Rhoades was arrested. As the Idaho officers — one of whom Rhoades knew from home — approached, Rhoades said: “I did it.”

Rhoades was advised of his Miranda rights by an officer from Idaho, Victor Rodriguez, and searched by another Idaho officer, Dennis Shaw. Rhoades had a digital wrist watch in his pocket, which he claimed to have found in a “barrow pit.” It was just like the one Baldwin was wearing the night she was killed. During the booking process at the Wells Highway Patrol Station, Shaw remarked something to the effect: “If I had arrested you earlier, Stacy Baldwin may be alive today.” Rhoades replied: “I did it.” Shaw then said, “The girl in Blackfoot,” and Rhoades again replied, “I did it.”

Forensic analysis would show that footprints found in the snow near Baldwin’s body were consistent with the size and pattern of Rhoades’s boots, and that Rhoades’s hair was consistent with a hair on Baldwin’s blouse. Rhoades also admitted to a cellmate that he kidnapped Baldwin, took her to an archery range intending to rape her but was unable to do so because she was hysterical, and shot her twice in the back. Based on this evidence, the jury found Rhoades guilty of murder in the first degree, kidnapping in the first degree, and robbery. The state court held an aggravation and mitigation hearing, after which it sentenced Rhoades to death on the conviction for first degree murder and the conviction for first degree kidnapping.

In 1987, Paul Ezra Rhoades was charged with the rape and murder of Susan Michelbacher as well as the murder and robbery of Nolan Haddon. Rhoades pleaded not guilty to all charges and filed a motion to sever the charges, which was subsequently granted. Rhoades was tried, convicted, and sentenced to death on the charges relating to the Michelbacher rape and murder. The parties subsequently entered into a plea agreement relating to the Haddon murder/robbery wherein Rhoades entered an “Alford” plea, maintaining his innocence in the case but conceding that “a conviction may be had on the charges as presently filed.” Rhoades was sentenced to serve concurrent indeterminate life sentences for the Haddon murder and robbery.

Nolan Haddon worked the night shift at Buck’s convenience store in Idaho Falls, Idaho on March 16, 1987. The next morning, Buck’s owner found Haddon lying on the floor in a pool of blood. He had been shot five times. He was still alive at the time, but unconscious. He died at the hospital. An inventory of the store showed that some BIC lighters, Marlboro cigarettes, and $116 in cash were missing. The police suspected Rhoades of a string of burglaries, including one at Lavaunda’s Lingerie, and obtained a warrant to arrest Rhoades for that burglary on March 23, 1987. They learned that he was in Nevada when, on March 24, a Nevada state trooper responded to an accident involving a green Ford that was reported stolen by Rhoades’s mother, Pauline Rhoades. The next evening, two Nevada law enforcement officers arrested Rhoades inside a Wells Casino. They handcuffed him, placed him across the trunk of the police car, and advised him of his Miranda rights. Idaho officials were contacted and went to the Casino. As the Idaho team approached, Rhoades stated “I did it” without being questioned by anyone. Officer Victor Rodriguez, from Idaho, again advised Rhoades of his Miranda rights. Rhoades was asked if he understood those rights, and said something to the effect of “I do, yes.”

Detective Dennis Shaw, also from Idaho, searched Rhoades, and found two packages of Marlboro cigarettes and five BIC lighters similar to those taken from the store. Shaw also found a ten dollar bill, a one dollar bill, and a one-hundred dollar bill. He told Rhoades he had found three dollars, to which Rhoades responded: “It better be $111.” Rhoades was then taken to the Wells Highway Patrol substation for booking. At the station, Shaw remarked that he wished he had arrested Rhoades on an earlier occasion, and that he would probably have saved the last victim’s life. Rhoades raised his head and said, “I did it.”

Serial Killers

RHOADES Paul Ezra

An Idaho native, born in 1957, Rhoades boasted a record of small-time arrests dating from age 21. In May 1978, he was charged with refusal to disperse, and grand theft charges were filed against him six months later, the latter count dismissed prior to trial. A new charge of refusal to disperse was lodged in March 1982, and June of that year saw him booked for petty theft. Rhoades was arrested for driving without a license in June 1985 and again in March 1986, but more serious charges of burglary were dismissed in January 1986. So far, he had been lucky, but police were only chipping at the apex of a lethal iceberg. If the authorities are right in their suspicions, Rhoades began his hunt for human prey in the adjoining state of Utah, gunning down 16-year-old Christine Gallegos, in Salt Lake City, during May 1985. Eleven months later, 20-year-old Carla Maxwell was shot to death in the robbery of a Layton, Utah, convenience store. Lisa Strong, age 25, was the third Utah victim, blasted on a Salt Lake City street in May 1986.

On February 27, 1987, Stacy Baldwin, 21, was kidnapped from her job at a convenience store in Blackfoot, Idaho, shot dead and dumped outside the city limits. Officers saw no connection four days later, when a 19-year-old college co-ed was abducted, robbed, and raped in Rexburg, but the links would show, in time. On March 16, 20-year-old Nolan Haddon was fatally wounded in the robbery of an Idaho Falls convenience store. Three days later, Susan Michelbacher, a 34-year-old schoolteacher, vanished en route to her classes in Idaho Falls. She was discovered, shot to death outside of town, March 21. Paul Rhoades, meanwhile, had fled the city in his mother's car, the vehicle reported to police as stolen. He was picked up in Elko, Nevada, on March 25, after a traffic accident led to identification of the missing car. Ballistics tests matched a confiscated revolver to the three deaths in Idaho, and warrants were issued charging Rhoades with murder, kidnapping, robbery, rape, and "an infamous crime against nature." The courts ruled out an insanity plea in November 1987, and Rhoades was held over for trial on the outstanding charges.

State v. Rhoades, 119 Idaho 594, 809 P.2d 455 (Idaho 1991). (Haddon Direct Appeal)

Defendant entered conditional guilty plea to second-degree murder and robbery and was sentenced to indeterminate life sentences by the District Court, Seventh Judicial District, Bonneville County, Larry M. Boyle, J., and subsequently appealed issues reserved in plea agreement. The Supreme Court, McDevitt, J., held that: (1) justiciable issue did not exist with respect to whether abolition of insanity defense deprived defendant of due process rights; (2) prosecution was not required to prove reliability of inculpatory statements by any higher standard than beyond reasonable doubt in capital case; (3) defendant's negative shake of head after being read Miranda warnings was not assertion of his right to remain silent justifying suppression of inculpatory statements subsequently made; (4) testimony of jailhouse informants as to defendant's purported confession to murder was not more prejudicial than probative; and (5) judge was not required to disqualify himself because he had sentenced defendant to death in earlier murder trial. Affirmed. Bakes, C.J., concurred specially with regard to Parts I and III of opinion with note. Johnson, J., concurred in result and concurred specially with Parts I, II and V of opinion with note.

McDEVITT, Justice.

This case arises from the murder of Nolan Haddon, a convenience store clerk, during the course of a robbery. Paul Ezra Rhoades was charged with that murder, and after pretrial proceedings he entered a conditional guilty plea to second degree murder and robbery. The trial court accepted the plea agreement and sentenced Rhoades to an indeterminate life sentence for murder in the second degree, and an indeterminate life sentence for robbery.

By the terms of the plea agreement, Rhoades reserved for appeal the issues discussed below, except that the issue of prosecutorial misconduct in withholding exculpatory evidence from the defense was not listed as an issue preserved for appeal by the plea agreement.

* * *

Prior to facing charges for the murder of Nolan Haddon, Rhoades was tried and convicted for the murder of Susan Michelbacher by a jury, and sentenced to death by the same judge who presided over the Haddon case. In deciding that the death penalty was appropriate for the Michelbacher homicide, the trial judge made detailed findings of fact, as required by statute. Those findings, weighing the aggravating and mitigating factors of the crime and Rhoades's character, concluded that, “[t]he murder and accompanying acts are those of someone morally vacant and totally devoid of conscience,” and that the circumstances of the crime were “extremely wicked and vile, shockingly evil, and designed to inflict a high degree of physical and mental pain with utter indifference to and with the apparent enjoyment of the suffering....” The judge also found that Rhoades has a propensity to commit murder and constitutes a continuing threat to society.

Rhoades moved to disqualify the trial judge from the Haddon case, arguing that after having reached such extreme and negative conclusions concerning the defendant, the trial judge could not possibly remain neutral during a second trial of the same person for a different crime.

A majority of the Court sitting on this case is of the opinion that this issue, as framed by the appellant, is not necessary to decide as the defendant was not sentenced to death in this case, or for the reason that the trial judge is able to carry out the duties of sentencing and still afford a defendant a fair trial in a subsequent proceeding.

SCHROEDER and REINHARDT, JJ., Pro Tem., concur. BAKES, C.J., concurs in result. JOHNSON, J., specially concurring.

* * *

Rhoades entered a conditional guilty plea to the murder of Nolan Haddon pursuant to Idaho Criminal Rule 11. That rule provides that if the appeal of issues raised in the conditional plea is successful, the defendant shall be entitled to withdraw the guilty plea and stand trial. Our analysis has established no issue that constitutes reversible error thus permitting withdrawal of the plea entered by this appellant.

BAKES, Chief Justice, concurring specially:

With regard to Parts I and III, I agree with the Court that there was no evidence to raise a justiciable issue as to the constitutionality of the repeal of the insanity defense. However, if there had been, I agree with Justice Johnson that that issue is now foreclosed by virtue of our decision in State v. Searcy, 118 Idaho 632, 798 P.2d 914 (1990).

JOHNSON, Justice, concurring, concurring in the result and concurring specially: I concur in the Court's opinion, except parts I–II (PRETRIAL RULING ON AVAILABILITY OF INSANITY DEFENSE) and part V (DISQUALIFICATION OF TRIAL JUDGE FOR PREJUDICE).

I concur in the result of parts I–II. In my view, there was a justiciable issue as to the constitutionality of the repeal of the insanity defense. However, this Court ruled in State v. Searcy, 118 Idaho 632, 798 P.2d 914 (1990) that the repeal of the insanity defense was not in violation of either the United States Constitution or the Constitution of the State of Idaho. Since no rehearing was requested in Searcy, a remittitur has issued, and the Court's opinion has become final. Although I dissented from this ruling of the Court in Searcy, I now accept that Searcy should be honored under the rule of stare decisis. I concur specially in part V. In my view since the district judge who was the subject of the motion to disqualify did not sentence Rhoades to death in this case, I do not believe we should address the issue raised concerning his disqualification.

State v. Rhoades, 121 Idaho 63, 822 P.2d 960 (Idaho 1991). (Michelbacher Direct Appeal)

Defendant was convicted of capital murder and sentenced to death following jury trial by the Seventh Judicial District Court, Bonneville County, Larry M. Boyle, J. Defendant appealed. The Supreme Court, McDevitt, J., held that: (1) no judiciable controversy existed regarding constitutionality of statutory repeal of insanity defense; (2) prosecutor's reference to defendant's failure to testify was harmless error; (3) statute which required prompt postconviction proceedings did not violate defendant's procedural due process rights; (4) defendant's statements were admissible; (5) prosecutor's failure to produce two police reports did not affect outcome of trial; (6) jury instructions adequately informed jury of applicable laws; (7) setting deadline for production of defense expert report was not abuse of discretion; (8) erroneous admission of victim impact statements was harmless; (9) trial court properly considered alternatives to death penalty; (10) weapons enhancements were properly charged as separate counts; and (11) reasonable doubt jury instruction did not misstate to applicable law. Affirmed. Johnson, J., concurred specially, dissented, and filed opinion. Bistline, J., concurs in the result.

McDEVITT, Justice.

This case arises from the murder of Susan Michelbacher. Paul Ezra Rhoades has been convicted in three separate murder cases. For the murders of Susan Michelbacher and Stacy Baldwin, Rhoades was sentenced to death; for the murder of Nolan Haddon he received an indeterminate life sentence based on a conditional plea.

The issues presented in this appeal are: I. Whether the legislative abolition of the defense of mental condition in criminal cases violates the Idaho or United States Constitutions. II. Whether the trial court's failure to make a pretrial ruling on the constitutionality of the statutory abolition of the insanity defense was in error. III. Whether comments made by the prosecuting attorney to the jury during closing argument violated the appellant's right to be free from compelled self-incrimination. IV. Whether the trial court's limitation on juror inquiry into the effects of the prosecutor's comments constituted harmless error. V. Whether accelerated post conviction procedures in capital cases are unconstitutional. VI. Whether inculpatory statements made by Rhoades to the police should have been suppressed. VII. Whether the prosecution's failure to turn over exculpatory evidence constituted reversible error. VIII. Whether the jury instructions were proper. IX. Whether the court erred in compelling a defense expert to prepare a written report or submit to an interview by the prosecutor before testifying. X. Whether the court erroneously considered a victim impact statement. XI. Whether the death penalty was properly imposed. XII. Whether the jury was properly selected. XIII. Whether the trial court's approval of the method of charging weapon enhancements was erroneous under statutory and case law.

I.–II. LEGISLATIVE ABOLITION OF THE INSANITY DEFENSE AND PRETRIAL RULING ON AVAILABILITY OF INSANITY DEFENSE

In 1982 the Idaho Legislature abolished the insanity defense in criminal cases by repealing I.C. § 18–209 and enacting I.C. § 18–207(a), which provides that “[m]ental condition shall not be a defense to any charge of criminal conduct.”

Both parties extensively briefed and argued the issue of justiciability; that is, whether there was any factual showing on the record that would grant the court the authority to render a ruling in the nature of a declaratory judgment on the issue. Rhoades had been examined by a psychiatrist pursuant to defense counsel's request. However, the defense did not introduce evidence indicating the psychiatrist's conclusions as to whether there was any basis on which to raise the issue of mental defect.

The defense further argued that even if some showing was required, the prosecution and the court had waived the necessity of presenting preliminary evidence on Rhoades's mental condition when a defense request for psychiatric assistance at state expense was granted without the preliminary showing required by statute. The defense argues that this constituted a waiver of any showing that might be required in the later request for a ruling on the existence of the insanity defense. Finally, the defense urged that there was a sufficient factual showing on the record to bring Rhoades's sanity into issue. Noting that where the insanity defense is permitted it may be established by lay testimony, the defense cited the preliminary hearing testimony of one of the arresting officers to the effect that on the night Rhoades was arrested he was unstable and incoherent.

THE COURT: Do you have an insanity defense that you are raising, or is this an academic exercise we're going through? ... If you have a defense, and you have an expert who is going to testify that this is an issue in this case, then I want to know that. ATTORNEY: Your Honor, I'm sure the Court is thinking of Ake v. Oklahoma where the U.S. Supreme Court spoke on an indigent's right to have a psychiatrist appointed at public expense. The problem we have here, Your Honor, is there's little authority out of the Supreme Court in this area, that's one of the few cases that come even close to our situation. THE COURT: My question is, though, do you have, after having Mr. Rhoades examined by a psychiatrist of your choosing, an opinion that the insanity issue is present in this case? ATTORNEY: Your honor, may I have just a minute, I want to address the precise question the Court is posing to me. In light of Ake, we've been afforded the psychiatrist, ... and if you read the Ake decision, the Court explicitly states that the purpose of providing that psychiatrist at an early point is to allow the defense an opportunity to determine whether a defense is viable ... my point here today ... is that the psychiatrist does me no good unless we know what the law and legal standard is. THE COURT: You're evading my question. My question, and I want an answer to it, is direct, do you have an opinion from your expert that the sanity of this defendant is in question? ATTORNEY: Your Honor, I have no opinions from my expert at this time for the simple reason it was to be my next point, that until we know what the legal standard is for a possible sanity defense, defense of mental conditions excluding responsibility of the law, until we know what that is.... THE COURT: I'm going to go back, the question I'm concerned with is whether or not your expert who examined Mr. Rhoades months ago has rendered an opinion at any time indicating that there is a viable issue as to sanity or the ability of this man to understand what he did and to formulate an intent? I need an answer to that question, and we've danced around it, but we haven't had that directly presented to the Court. Has your expert given you any type of an opinion as to the mental condition of this defendant? ATTORNEY: Your Honor, again I'm not sure I understand the question.... The trial court issued a Memorandum Decision refusing to rule on defendant's motion to find I.C. § 18–207 unconstitutional, finding that in the absence of expert testimony or evidence, there was no legitimate issue before the court. Defendant moved to appeal this decision, and another hearing was held. Again, the court asked defense counsel for an offer of proof, and again, none was given. THE COURT: Let me ask you again as I did in August, do you have,—do you represent to this Court that you have expert testimony available to establish the viability of insanity defense in this case? ATTORNEY: Well, I'll answer it the way I answered it. First of all, I don't know whether I do or not because a psychiatrist, forensic psychiatrist without a legal standard defining what insanity is could not possibly give me an opinion. That's where that sits.

Defendant's motion to appeal was denied.

We perceive the difficulty of the defense in obtaining an expert opinion on such a complex issue without the guiding framework of a legal standard. We also recognize that a psychiatric opinion on the mental condition of a defendant in a criminal case is forged by a long process of interaction between the expert and the defense, and that the result of that process will not generally be available during the pretrial stage of a criminal case.

However, the trial court did not require that the defense present an expert opinion as to the ultimate issue of Rhoades's sanity. The court requested any expression of opinion by the expert as to whether insanity might be an issue in the case, or an assertion by counsel that he was raising the defense of insanity. The court did not require polished testimony concerning exact mental processes or precise cognitive abilities of the defendant. It would have sufficed for the expert to provide a summary affidavit stating that in his opinion, there was a viable issue of insanity involved in the case. Alternatively, the expert might have submitted an affidavit to the effect that it would be impossible for him to render an opinion without a guiding legal standard. Yet another option might be to offer an opinion based on the definition of insanity that Idaho had in place prior to the legislative repeal of the defense, restricting the affidavit to an in camera review in order to protect the defense from the consequences of prematurely offering an opinion from an improperly prepared defense expert.

The trial court found that the record did not create a justiciable controversy to support a ruling on the issue of the repeal of the insanity defense. We agree.

The authority to render a declaratory judgment is bestowed by statute. The Declaratory Judgment Act, contained in Idaho Code Title 10, chapter 12, confers jurisdiction upon the courts with the option to “declare rights, status, and other legal relations, whether or not further relief is or could be claimed.” I.C. § 10–1201. An important limitation upon this jurisdiction is that, “a declaratory judgment can only be rendered in a case where an actual or justiciable controversy exists.” Harris v. Cassia County, 106 Idaho 513, 516, 681 P.2d 988, 991 (1984). This concept precludes courts from deciding cases which are purely hypothetical or advisory in nature.

[A] controversy in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241–42, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937) (citations omitted).

The same principle as pronounced by this Court provides: The Declaratory Judgment Act ... contemplates some specific adversary question or contention based on an existing state of facts, out of which the alleged “rights, status and other legal relations” arise, upon which the court may predicate a judgment “either affirmative or negative in form and effect.” * * * * * * The questioned “right” or status” may invoke either remedial or preventative relief; it may relate to a right that has either been breached or is only yet in dispute or a status undisturbed but threatened or endangered; but in either or any event, it must involve actual and existing facts. State v. State Board of Education, 56 Idaho 210, 217, 52 P.2d 141, 144 (1935).

Other testimony confirms Officer Rodriguez's impressions of Rhoades's conduct on the night of the arrest, but there is no evidence in the record as to abnormal conduct at any other time. This testimony establishes that Rhoades was having physical difficulty on the night of his arrest, which was assumed by the officers to be the result of drugs or intoxication. The trial court appropriately concluded that such evidence alone does not rise to the level of a showing of the mental condition of the defendant.

From the state's point of view from what we understand the evidence to be we would understand why they seek these two particular appointments, so we would urge the Court to go ahead and adopt that without requiring any further showing. Defense counsel urges that this statement by the prosecution, and the court's acquiescence in the motion for a court appointed expert without requiring any preliminary showing on the defendant's mental condition, amounts to a waiver of the required showing on the issue. We disagree.

We uphold the trial court's determination that the record does not create a justiciable controversy to support a ruling on the issue of the repeal of the insanity defense. Having done so, we do not reach the constitutional issue regarding the legislative repeal of the insanity defense.

III.–IV. COMMENT BY THE PROSECUTOR AND LIMITATION ON JUROR INQUIRY

In closing argument the prosecuting attorney made the following statements: PROSECUTING ATTORNEY: When I get paid, when you get paid is that how you describe it that you came into some money? That's the phrase you use when you inherit some money or come into some other windfall. In today's world when money changes hands legitimately there's generally a document that documents that transaction. A receipt, a check, a passbook saving's account that indicates the transfer of those funds. What did we hear from the defendant yesterday? DEFENSE ATTORNEY: Excuse me, Your Honor— PROSECUTING ATTORNEY: I'm sorry— DEFENSE ATTORNEY: I'm going to object. PROSECUTING ATTORNEY: I'm sorry, what did we hear from the defense counsel in the case-in-chief yesterday?

Defense counsel suggests that this constitutes reversible error because it referred to the defendant's failure to testify on his own behalf. We disagree.

The comment in question must be looked at in the context in which it was made. Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). Boyde v. California, involved a similar situation. The appellant asserted that comments made by the prosecutor immediately before the jury began sentencing deliberations unfairly influenced the jury. The Court stated: “This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court. And the arguments of counsel, like the instructions of the court, must be judged in the context in which they are made.” (citations omitted). Id. 110 S.Ct. at 1200.

The trial court, in an Order Denying Motion for New Trial, found that: The prosecutor's comment, when viewed by itself, may appear to be improper on the surface, however, when viewed in the entire context and perspective of the trial, and the context of the comment, the Court is firmly of the belief beyond a reasonable doubt that any error was harmless.

We agree that, taken in context, the statement made by the prosecutor did not pertain to the defendant's failure to testify, but instead was a comment on the sufficiency of the defendant's evidence. It is entirely permissible for the prosecutor to comment on inconsistencies in the evidence presented by the defendant, United States v. Scott, 660 F.2d 1145, cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982), and to draw inferences from those inconsistencies. United States v. Ellis, 595 F.2d 154, cert. denied, 444 U.S. 838, 100 S.Ct. 75, 62 L.Ed.2d 49 (3rd Cir.1979).

The defense further argues that the trial court impermissibly limited the scope of inquiry into whether the jury was influenced by the prosecutor's comment. The trial court permitted post-trial interviews of the jurors and authorized the defense to hire an investigator for that purpose. Of the fourteen jurors who heard the case, five jurors agreed to be interviewed, two refused, and seven were not contacted before the hearing. The defense requested a postponement of the hearing in order to have time to contact them, but this request was denied. The court also denied defense counsel's request to call some of the jurors as witnesses at the post conviction proceedings, or to take their depositions.

The investigator was appointed in early October. The hearing took place on January 11, 1989. The trial court found that this was ample time in which to contact the members of the jury and ask them questions. A decision to grant or deny a motion for continuance is vested in the sound discretion of the trial court. State v. Richardson, 95 Idaho 446, 511 P.2d 263 (1973), cert. denied, 414 U.S. 1163, 94 S.Ct. 928, 39 L.Ed.2d 117 (1974). Here, the defendant has not shown that the trial court abused its discretion by denying additional time to contact the other members of the jury. We hold that the trial court did not abuse its discretion in denying defendant's motion for continuance.

V. ACCELERATED POST CONVICTION PROCEEDINGS

Idaho Code § 19–2719 requires that in capital cases, post conviction relief must be requested within 42 days after the judgment is filed, and completed within 90 days after that. Appellant urges this Court to reconsider our decision in State v. Beam, 115 Idaho 208, 766 P.2d 678 (1988), which held that I.C. § 19–2719 did not violate the defendant's constitutional rights under equal protection analysis. We decline to do so.

Rhoades also claims that I.C. § 19–2719 violates his due process rights, which Beam did not address. Procedural due process issues are raised whenever a person risks being deprived of life, liberty, or property interests because of a governmental action. The requirement is that there must be some process to ensure that the individual is not arbitrarily deprived of his rights in violation of the state or federal constitutions. This requirement is met when the defendant is provided with notice and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950); Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 1190, 14 L.Ed.2d 62 (1965). The United States Supreme Court provides us with a balancing test to determine if procedural safeguards are adequate in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). The three factors to be weighed are: the private interests at stake; the government's interest; and the risk that the procedures used will lead to erroneous results. U.S.C.A. Const.Amends. 5, 14. This Court has employed this due process test in State v. Ankney, 109 Idaho 1, 704 P.2d 333 (1985).

Here, the defendant's interest is in being afforded an adequate opportunity to present legal and factual issues in his defense. The government's interest in enacting I.C. § 19–2719, as stated by the legislature, is “to accomplish the purpose of eliminating unnecessary delay in carrying out a valid death sentence.” This was determined by this Court to be a legitimate goal in State v. Beam, 115 Idaho 208, 212, 766 P.2d 678, 682 (1988). The focus of our present inquiry is to determine whether or not I.C. § 19–2719 provides an adequate process to ensure that death sentences are not carried out so as to arbitrarily deprive a defendant of his life.

The statute requires the defendant to “file any legal or factual challenge to the sentence or conviction that is known or reasonably should be known” within 42 days of the filing of the judgment. These challenges arise out of the judicial proceeding just concluded. At this point, counsel has been closely involved with the case for some time, has been present at trial, and has had notice of all issues that are appropriate to be raised within this 42 day limit. All that counsel is required to do is to organize all challenges and issues that arose during trial and are appropriate for appeal within 42 days. That is not an unduly burdensome task. The statute provides adequate notice to the defendant of exactly what is required of him, and sufficient opportunity for all challenges to be heard. In addition, it serves the purpose of the legislature by preventing the unnecessary delays that occur with so much frequency in capital cases. It is important to note that this limit does not preclude challenges that may arise later, for example, evidence discovered subsequent to completion of the trial. There is no absolute bar on successive petitions for relief. Palmer v. Dermitt, 102 Idaho 591, 635 P.2d 955 (1981).

The legislature has seen fit to appropriately limit the time frame within which to bring challenges which are known or which reasonably should be known. The process encompassed in I.C. § 19–2719 providing for review by the trial court and then by this Court, provides adequate opportunity to present the issues raised and to have them adequately reviewed. Idaho Code § 19–2719 is not unconstitutional under due process analysis.

VI. SUPPRESSION OF INCULPATORY STATEMENTS

Rhoades was arrested on March 25, 1987. He was being sought as a suspect in an Idaho murder investigation, and when his car was identified in Nevada, a Nevada Highway Patrol Officer, George McIntosh, drove to the scene with two officers from Idaho, Victor Rodriguez and Dennis Shaw. Two Nevada officers, Trooper Neville and Officer Miller, were holding Rhoades at the scene. Another Nevada officer, Shires, arrived at the scene as back up. Shaw testified that as he and Rodriguez approached Rhoades where he was being held against the car by Neville and Miller, Rhoades made a spontaneous statement of “I did it,” without being directly addressed or questioned by any officer. Miller claims to have heard that first statement, although it was not included in his initial report of the arrest. Miller did include that fact in a supplemental report filed two months later. Officer McIntosh testified that he did not hear the statement, nor was it overheard by Trooper Neville.

Rhoades argues on this appeal that the trial court should have excluded those statements for three reasons: (1) the questionable reliability of the evidence, given the fact that several of the officers who claimed to overhear the statements failed to record the fact in their reports until months after the arrest; (2) the failure of the police to tape record the statements; and (3) the statements were the result of the violation of Rhoades's Miranda rights.

The United States Supreme Court has imposed many procedural protections for capital cases. See, e.g., Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). However, these cases do not go so far as to alter the types of evidence or establish a minimum degree of reliability of evidence that may be admissible during the fact finding phase of a potential capital case. The prosecution in such cases is not required to prove the crime by any higher standard than the “beyond a reasonable doubt” standard used in other criminal cases. Admission of evidence is not governed by any separate rules applicable only to capital cases. Therefore, there is no reason to conclude that testimony which is questionable must be excluded during the guilt determination phase of a capital case. The credibility of evidence in a first degree murder case, as in all others, is an issue for the trier of fact.

Likewise, we cannot accept the contention that in order to be admissible, statements made in custody must be tape recorded by the police. The defense cites an Alaska case, Stephan v. State, 711 P.2d 1156 (Alaska 1985), holding that custodial confessions must be tape recorded in order to be admissible under the Due Process Clause of the Alaska State Constitution. That case represents no more than the prerogative of each state to extend the protections of its own constitution beyond the parameters of federal constitutional guarantees. We decline to adopt Alaska's standard in Idaho.

We now turn to the issue of whether Rhoades's Miranda rights were violated by the police during his arrest and custody.

There is some conflict in the record as to whether Rhoades was read his Miranda rights while in the custody of Nevada Officers Miller and Neville, or if he was given the Miranda warnings for the first time by Officer Rodriguez after Rodriguez, Shaw, and McIntosh arrived at the scene. Although the record does not support the trial court's finding that the first statement by Rhoades was preceded by a Miranda warning, that factual issue does not affect our conclusion that both statements were properly admitted into evidence.

The first “I did it” statement, while Rhoades was handcuffed in the parking lot was apparently spontaneous. So spontaneous in fact, that according to uncontested police accounts, Rhoades made the statement without being questioned or otherwise addressed by any of the officers present. As a spontaneous statement, it was admissible whether it occurred before or after Rhoades was read his Miranda rights. “Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.... Volunteered statements of any kind are not barred by the Fifth Amendment.” Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). Although the statement entirely lacked any context to make it meaningful, the trial court correctly concluded that it was for the jury to decide to what Rhoades referred when he said “I did it” at the scene of the arrest.

Those facts are the sole basis in the record for the contention that Rhoades did assert his right to remain silent. There is no evidence in the record as to what Rhoades was responding to when he shook his head negatively. On the strength of this evidence alone, the trial court declined to infer that the shake of the head indicated a desire to remain silent. That finding is not clearly erroneous, given the lack of evidence to the contrary. Miranda teaches that “[o]nce warnings have been given, the subsequent procedures are clear. If the individual indicates in any manner, at any time, prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473–74, 86 S.Ct. at 1627.

The record indicates that Rhoades was read his rights before the second statement and acknowledged that he understood them. Although there is evidence that Rhoades was heavily influenced by narcotics at the time of the arrest, Officer Shaw testified that while searching his person, he engaged Rhoades in conversation to test his alertness and found that he had sufficient capacity to understand what was going on around him. In sum, Rhoades had been instructed upon and understood his rights at the time of arrest, and there is insufficient evidence to indicate that he asserted his right to remain silent. For the foregoing reasons we conclude that the second statement made in response to Shaw's “interrogation” is not subject to suppression under Miranda v. Arizona.

VII. WITHHOLDING OF EXCULPATORY EVIDENCE BY PROSECUTION

On May 15, 1987, the defense filed a request for discovery, asking for “[a]ll Bingham County and/or Blackfoot City Police reports or investigative materials relative to the Stacy Baldwin homicide which is alleged to have occurred in Bingham County.” On July 2, 1987, the prosecution filed a Supplemental Response to Defendant's Discovery Request, listing the items that it had provided pursuant to the discovery request, including, “[a]ll Bingham County and/or Blackfoot City Police reports” relative to the Baldwin case.

Part of the materials submitted to the defense in this exchange was a supplementary police report by Detective Newbold of the Blackfoot Police Department, which detailed the confession of Kevin Buckholz to the killing of Stacy Baldwin. Buckholz had been arrested by Blackfoot Police Officer Love on March 14, 1987, for drunk and disorderly conduct. Love's brief report indicated that Buckholz stated he had “killed the girl at the mini barn.” Later, while he was in the holding tank, Buckholz initiated conversation with Officer Larry Christian. Christian filled out the following report of the conversation: [A] prisoner in the holding tank started talking to me (Kevin Buckholt) [sic] said he “had problems and needed to be put away cause he couldn't function in the regular world,” he then proceeded to tell me he shot a girl twice in the back. I said what girl and he said “You know the one from the mini barn.” I then asked how many shots did you fire, he said “I don't know I shot several times, I hit her in the back twice.” ... I then asked him what kind of gun he used and he said “a ‘38’ then said no a ‘9’ mm I think.” ...

Christian reported the incident to Detective Newbold, who summarized the statement in his own report. That report was provided to defense counsel for Rhoades pursuant to the discovery request for Blackfoot City Police reports. Newbold's report mentions Christian's written report, and outlines that report in detail. However, neither Christian's nor Love's report was provided to the defense. On appeal, Rhoades argues that the prosecution's compliance with the discovery request was inadequate, and in violation of the prosecutor's duty to turn over all exculpatory evidence to the defense. Although this appeal concerns the conviction for the murder of Susan Michelbacher, Buckholz's confession is significant because the killings of Michelbacher and Baldwin were linked by ballistic evidence establishing that the same murder weapon was used in the commission of both crimes.

The test by which to measure the prosecutor's duty to disclose evidence is the materiality of the information at issue. The determination of “materiality” is guided by whether the information tends to create a reasonable doubt about guilt, State v. Brown, 98 Idaho 209, 560 P.2d 880 (1977), or is otherwise “obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request.” United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1975).

We do not believe that the outcome of the trial would have been different had the defense received the two other police reports. Officer Newbold's report provided enough detail to stimulate additional inquiry if the defense had been inclined to do so. The defense had the information that there was a confession to the Baldwin murder, the identity of the confessor, the details of the confession, and the name of the officer who heard the confession. With that information they could have contacted Officer Christian and Kevin Buckholz and determined from them whether the confession was worth pursuing. The defense claims that had they received the two additional reports from the prosecution then they would have made more of an effort to locate Buckholz. We believe that the defense could have made that determination without the other two police reports.

VIII. JURY INSTRUCTIONS

Appellant claims that the trial court erred in its instructions to the jury in a number of respects. Specifically: 1. The court should have instructed on the difference between general intent crimes and specific intent crimes. 2. The court should have instructed on mens rea and the concurrence of act and intent. 3. The court wrongly refused instructions and inadequately defined legal terms.

Appellant asserts that the refusal to instruct on specific intent when a defendant is charged with both specific intent and general intent crimes constitutes error because it could mislead the jury. Appellant cites several California cases for this proposition; however, it was not held in any of these cases to be reversible or prejudicial error. This Court held, in State v. Lankford, 113 Idaho 688, 694, 747 P.2d 710, 716 (1987): Where the jury instructions, taken as a whole, correctly state the law and are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole charge and was not misled by any isolated portion thereof.

We hold that the court's instructions to the jury were adequate. Idaho Code § 19–2132 provides, “In charging the jury, the court must state to them all matters of law necessary for their information.” Here, the trial court found that the specific intent instructions requested by the defendant were adequately covered by the instructions given by the court, taken as a whole. In addition, the trial court found that the jury was carefully instructed on intent, and “to have given the requested instructions dealing with diminished capacity, unsoundness of mind, and other similar language as set forth in defense requested Instructions 64, 67, 68, 69, and 70 would have confused the jury because there was absolutely no evidence whatsoever presented relating to defendant's mental condition that would warrant giving [these instructions].” In State v. Fisk, 92 Idaho 675, 681, 448 P.2d 768, 774 (1968), this Court held that it was not error to refuse to give requested instructions if they were covered by other instructions given.

We conclude that the instructions given adequately informed the jury of the law applicable to the issues in question.

IX. COMPELLING DEFENSE EXPERT TO PREPARE A WRITTEN REPORT OR TO BE INTERVIEWED BEFORE TESTIFYING

The defendant hired a ballistics and hair expert to examine the State's evidence. The expert did not prepare or provide any written reports to the defense. The prosecutor sought an order from the court requiring the defense to “provide the state with copies of reports of examinations conducted by the defense experts ... whom the defendant intends to call at trial,” or in the alternative to allow the prosecutor to “interview the defense experts; if reports are not, or have not yet been prepared....” The defense objected to this procedure. The trial court ruled that the expert must either provide a written report to the prosecutor or allow the prosecutor to interview him pursuant to Rule 16(c)(2) of the Idaho Criminal Rules, which provides:

Upon written request of the prosecuting attorney, the defendant shall permit the state to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce in evidence at the trial, or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to testimony of the witness. Idaho Criminal Rule 16(c)(2) clearly allows access to reports which the defendant intends to introduce at trial or which were prepared by a witness whom the defendant intends to call at trial. However, in ordering a defense expert to prepare a report for opposing counsel, or to submit to an interview by opposing counsel, the court overstepped the boundaries of the rule. The Washington Supreme Court interpreted an analogous criminal discovery rule, in State v. Hutchinson, 111 Wash.2d 872, 766 P.2d 447 (1989), which involved a similar situation. They held that:

It is undisputed that the defendant may be required to disclose any existing expert's report he intends to use at trial. However, the rule does not say that an expert can be required to make a report at the request of the opposing party. Defense counsel claims that no written reports have been requested, received or written. The clear language of the rule does not authorize the trial court to require the defendant's experts to prepare written reports for the state when they have not been prepared for the defendant.

However, we do not believe that this error resulted in prejudice to the defendant. This case differs from Hutchinson, because here, the defense did anticipate having the expert prepare a report, but told the prosecutor that it would not be available until a week before trial. The prosecutor was concerned that this would not be enough time in which to use the evidence to prepare for trial. In managing the trial procedure, the court set a deadline for the production of the expert report, which was within his authority.

X. VICTIM IMPACT STATEMENTS

We now turn to the issue of the victim impact statement contained in the presentence report. Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), prohibits the introduction of victim impact statements during the sentencing phase of a capital case as violative of the Eighth Amendment to the United States Constitution. In Booth, there were two types of information presented in the victim impact statement. The first type consists of “a description of the emotional trauma suffered by the family and the personal characteristics of the victims,” and the second contains the “family members' opinions and characterizations of the crimes.” This information is excluded because, “its admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.” Id. 107 S.Ct. at 2533, 2535.

In the present case, the victim impact statement, in its entirety, states: The victim in this instant offense, Susan Michelbacher, was a 31 year old wife and mother. She was employed as a Special Education teacher at Eagle Rock Junior High in Idaho Falls. She resided with her husband, Bert, and their 2 1/2 year old son, Christopher Jon, in Idaho Falls. She had been a teacher for about 11 years, she was a member of the Christian Science Church, she was active in sports and community affairs, and a memorial has been established in her name. Her husband, Bert Michelbacher, has suffered emotional trauma at the loss of his wife and her companionship. He explained that for several months he was unable to perform his duties as project engineer at his place of employment at the level of efficiency he is accustomed to. The crime has also had a profound affect [sic] on his financial situation. He has had to hire a full-time nanny to care for his son, he has required some costly psychiatric counseling which was only partially covered by his health insurance plan, and he related that he had to purchase a replacement vehicle for the Ford van, which he cannot bear to look at much less drive. He explained that he wanted to sell the van, but due to it's relationship to the crimes, no one wants to buy it.

Mr. Michelbacher expressed a dissatisfaction with the criminal justice system and it's [sic] tendency to protect the criminal. He seemed to be harboring a significant amount of anger in addition to his grief and sorrow. He stated that he wanted to see justice done. He indicated that by the time justice is done, if justice is done, no one will remember who Susan Michelbacher was or what Paul Rhoades did to her. This is undoubtedly a victim impact statement of the kind contemplated in Booth v. Maryland, and as such, it was error for the trial court to admit it.

The next level of inquiry is to determine if the victim impact statement constitutes harmless error under the State v. Paz, 118 Idaho 542, 798 P.2d 1 (1990), exception. This Court, in Paz, relied on Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988), in holding that victim impact statements included in the presentence report, while error, could, under appropriate circumstances, be harmless error. The test to apply to determine if the use of such statements was harmless is whether this Court is assured that “it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

The only evidence in the record that the district court may have considered the information in the matter of a victim impact statement is one sentence in the Findings of The Court in Considering the Death Penalty: “[a]s a result, a husband is left without a wife, a child without a mother, and a community without the valuable contribution of a conscientious school teacher.” This is a statement of facts recited by the trial court as a result of having heard the evidence at trial. There is no indication that any evidence of the kind proscribed by Booth diverted the trial court from its primary function of considering the defendant being sentenced and not the victim or the victim's family.

In reviewing the record in this case, we are convinced beyond a reasonable doubt that the victim impact statement in the presentence investigation report did not influence the trial court in its imposition of sentence. The error was therefore harmless, and the case need not be remanded for sentencing.

XI. WHETHER THE DEATH PENALTY WAS PROPERLY IMPOSED

Appellant asserts that the trial court failed to adequately consider alternatives to the death penalty. In State v. Leavitt, 116 Idaho 285, 775 P.2d 599 (1989), this Court reversed the imposition of the death penalty and remanded, because: [T]he trial court failed to give adequate consideration of the alternatives which exist between the distant poles of ‘rehabilitation and possible probation,’ or the death penalty. Clearly, alternatives were and are available to a sentencing court, such as a fixed life sentence. Id. at 294, 775 P.2d 599.

The Court in Leavitt did not specify what constitutes “adequate consideration of the alternatives,” or exactly what the trial court would have to say in order to show that the alternatives were adequately considered. Here, in Findings of the Court in Considering the Death Penalty, the trial court titled a subsection “Sentencing Alternatives” and stated, “Conviction of these two crimes raises the possibility of the death penalty and other lesser sentences.” The court then goes on to say: [A]ny rehabilitation that is possible is markedly outweighed by the need to protect society, deter such crimes, and to punish and obtain retribution for the wrong committed.... the imposition of the death penalty in this case would not be unjust, and that the imposition of any other penalty would seriously depreciate the seriousness of the crime committed. We hold that this is sufficient to indicate that the trial court did consider alternatives to the death penalty and decided against imposing them after contemplating the unique circumstances of this case.

The defendant also asserts that mitigating factors were not adequately considered. The pertinent section of I.C. § 19–2515 provides: (c) Where a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the court finds at least one (1) statutory aggravating circumstance. Where the court finds a statutory aggravating circumstance the court shall sentence the defendant to death unless the court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance found and make imposition of death unjust. The clear language of the statute mandates that if an aggravating circumstance is present, “the court shall sentence the defendant to death unless the court finds that mitigating circumstances ... outweigh the gravity of any aggravating circumstances....”

As for the defendant's claim that the trial court engaged in impermissible speculation and overemphasized aggravating factors, we find no merit in this argument. To be sure, the trial court did employ language that could be construed as passionate or emotional, but we will not presume to dictate the writing style which judges must use in their findings. The trial court carefully followed the provisions of I.C. § 19–2515 in imposing the death penalty. We find no abuse of discretion.

The final issue presented by the defendant concerning the imposition of the death penalty is that he was improperly sentenced by a judge without jury input. This Court has held “that there is no federal constitutional requirement of jury participation in the sentencing process and that the decision to have jury participation in the sentencing process, as contrasted with judicial discretion sentencing, is within the policy determination of the individual states.” State v. Creech, 105 Idaho 362, 373, 670 P.2d 463, 474 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984). The United States Supreme Court held in Clemons v. Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 1446, 108 L.Ed.2d 725 (1990), that “[a]ny argument that the constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court.” In addition, in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), the United States Supreme Court held that Arizona's statute which, like Idaho's, provides for sentencing by a judge in capital cases is not unconstitutional.

XII. WHETHER THE JURY WAS PROPERLY SELECTED

Defendant objected to the practice of transporting the jurors from Boise to Idaho Falls for the trial. He asserted that there were at least four jurors who were excused solely because it was inconvenient for them to have to travel to Idaho Falls, and that they would have been able to serve if the trial had been held in Boise. Defense counsel voiced this objection and listed the jurors who fell into this category. One juror had three small children and her husband was away from home, another was a sole proprietor and could not leave his business, the third had a husband who had just undergone surgery, and the fourth was planning a move out of state. The trial court addressed this argument as to each juror and concluded that, “all four of those would have been excused regardless of where we hold the jury trial.” We accept the trial court's decision and do not find there to be an abuse of discretion.

Appellant also assigns error to the exclusion of two potential jurors. One of them, Michael Krubsack, was passed for cause by both sides. The next day he requested an opportunity to speak to the court again, and said that he and his family were planning a move out of state and that having to go to Idaho Falls for the trial would pose an extreme hardship. The finding of the court was that Krubsack “had a state of mind and a personal situation which would have prevented his attention from being substantially devoted to this proceeding as contemplated in I.C. § 19–2019.” He was excused. The other, Michael Landry, was excused for various reasons. The court found that he would be a disruptive juror and would not act with impartiality. His father was in prison for murdering several members of his family, and this left Landry with some strong opinions in favor of the death penalty. Landry advocated public stoning, charging 50 cents per rock, and according to the court, “exhibited behavior, attitudes and, state of mind which was not conducive to serving as a juror considering the serious nature of the charges.” We find no abuse of discretion in these findings of the court.

XIII. FORM OF WEAPONS ENHANCEMENT CHARGES

Rhoades contends that the prosecution's decision to charge weapons enhancements as separate counts in the indictment was prejudicial, in that it would lead a jury to believe that Rhoades was charged with additional crimes. He argues that I.C. § 19–2520, which allows enhanced sentences for the use of a firearm or deadly weapon in the commission of certain felonies, does not create a separate substantive crime, and should not be permitted to be present in the information in a format which could lend the impression that it constitutes a separate crime. The statute specifically provides that a person convicted of certain enumerated felonies “who displayed, used, threatened, or attempted to use a firearm or other deadly weapon while committing the crime, shall be sentenced to an extended term of imprisonment.” I.C. § 19–2520. In order to impose this additional term, the defendant must be “separately charged in the information or indictment and admitted by the accused or found to be true by the trier of fact....” The trial court followed the explicit language of the statute. This was not error.

XIV. CONCLUSION

The judgment entered and sentence imposed are affirmed. BAKES, C.J., and McDERMOTT, J. Pro Tem., concur. BISTLINE, J., concurs in the result.

JOHNSON, Justice, concurring specially and dissenting:

In concur in part VIII (JURY INSTRUCTIONS) of the Court's opinion so far as it goes. I write only to point out that Rhoades challenged the propriety of the reasonable doubt instruction given by the trial court. The portion of this instruction that Rhoades asserted was the most objectionable stated: A reasonable doubt is an actual doubt based upon the evidence or lack of evidence. It is such doubt as you are conscious of after going over in your minds the entire case and giving consideration to all the testimony. If you then feel uncertain and not fully convinced that the defendant is guilty or if you feel that you would not be acting reasonably should you find him guilty, and if you believe that a reasonable man in any matter of like importance in his own affairs would hesitate to act because of such doubt as you are conscious of having, then that is a reasonable doubt, and the defendant is entitled to the benefit of it.

I dissent from part X (VICTIM IMPACT STATEMENTS) of the Court's opinion. In applying the harmless error rule in death penalty cases where victim impact statement information was included in the record before the trial court, I would require a statement by the trial court that the information had not been considered.

ON REHEARING, McDEVITT, Justice.

This case arises from the murder of Susan Michelbacher. Paul Ezra Rhoades has been convicted in three separate murder cases. For the murders of Susan Michelbacher and Stacy Baldwin, Rhoades was sentenced to death; for the murder of Nolan Haddon, he received an indeterminate life sentence based on a conditional plea.

ARGUMENT ON REHEARING

Appellant filed a petition for rehearing on March 4, 1991. In it, he requested rehearing on nine issues. On April 8, 1991, we granted rehearing only as to the constitutionality of the reasonable doubt jury instruction.

INSTRUCTION NUMBER 23: THE REASONABLE DOUBT INSTRUCTION This jury instruction was read to the jury as follows: A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in a case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. Thus a defendant, although accused, begins the trial with a clean slate with no evidence against him. And the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. The effect of this presumption is to place upon the State the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is the state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. A reasonable doubt is an actual doubt based upon the evidence or lack of evidence. It is such doubt as you are conscious of after going over in your minds the entire case and giving consideration to all the testimony. If you then feel uncertain and not fully convinced that the defendant is guilty or if you feel that you would not be acting reasonably should you find him guilty, and if you believe that a reasonable man in any matter of like importance in his own affairs would hesitate to act because of such doubt as you are conscious of having, then that is a reasonable doubt, and the defendant is entitled to the benefit of it. But if, after considering all of the evidence, you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt, and you should render your verdict accordingly.

THE REASONABLE DOUBT JURY INSTRUCTION COMPLIES WITH DUE PROCESS

Appellant attacks the third paragraph of the reasonable doubt instruction. The thrust of appellant's argument is that the instruction, read as a whole, could be interpreted by a juror to suggest that a higher degree of doubt than a reasonable doubt is necessary in order to acquit. Specifically, he argues that the term “actual” suggests that some doubts do not count. He also argues that the term “conscious” suggests something more than “reasonable.” He argues that the word “feel” requires the jurors to turn to their inner feelings rather than to the evidence. Additionally, he argues that the phrase “fully convinced” suggests that it is not enough to be partially convinced of innocence. He argues that the reference to a “reasonable man” is inappropriate for a jury instruction in a criminal case. Finally, he argues that the phrase “hesitate to act” accentuates the word “feel.” Appellant concludes that paragraph three cannot be reconciled with the clear definition of “reasonable doubt” contained in paragraph two.

The analysis of the issue on rehearing must begin with the fundamental principle of criminal law: Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970).

When the term “reasonable doubt” appears in a jury instruction, and when the jurors must understand it and apply it, “the term should be defined more precisely so that there is no question in the jurors' minds with respect to the concept.” State v. Holm, 93 Idaho 904, 908, 478 P.2d 284, 288 (1970). So, when a jury is instructed on the reasonable doubt standard, the instruction cannot raise the degree of doubt necessary for an acquittal.

Appellant points to the fact that the jury instruction given in the district court below was not identical to the California jury instruction that we announced our preference for in Holm, 93 Idaho at 907–08, 478 P.2d at 288, and again in State v. Cotton, 100 Idaho 573, 577, 602 P.2d 71, 75 (1979). Today, we again reaffirm the holding of Cotton that the only appropriate instruction on reasonable doubt is the California jury instruction.

In this case, appellant requested the district court to give a reasonable doubt jury instruction that was identical to the preferred California jury instruction. The court gave an instruction that included the language of the California instruction with an additional two paragraphs. While it was inappropriate for the district court to not give the California jury instruction, our review is limited to whether the instruction that was given to the jury misstated the law or was so confusing and argumentative as to mislead the jury. Cotton, 100 Idaho at 576, 602 P.2d at 74.

Appellant cites the recent United States Supreme Court decision of Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), a per curiam opinion, for the proposition that it is never permissible for any combination of words to suggest a higher standard for acquittal than reasonable doubt. The Cage Court was faced with the issue of “whether the reasonable doubt instruction in this case complied with Winship.” Cage, 498 U.S. at ––––, 111 S.Ct. at 329 (emphasis added). The Court concluded that “the instruction at issue was contrary to the ‘beyond a reasonable doubt’ requirement articulated in Winship.” Cage, 498 U.S. at ––––, 111 S.Ct. at 329. We conclude that the Cage instruction is not similar to the instruction at issue in this case. Accord, Lord v. State, 107 Nev. 28, 806 P.2d 548, 554 (1991).

The instruction given to the jury in this case contained the California jury instruction. However, it expanded on that definition. The first two paragraphs of the instruction constitute the preferred California instruction. The third and fourth paragraphs do not impose a higher standard than “reasonable doubt.” We therefore hold that while it was inappropriate for the district court to not give the appellant's requested instruction, the instruction that was given did not misstate the law and was not so confusing and argumentative as to mislead the jury. Any embellishment or addition to the California reasonable doubt instruction risks misstating the law.

The judgment entered and sentence imposed are affirmed. Upon issuance of the remittitur, the district court shall set a new execution date. I.C. § 19–2719(11). BAKES, C.J., JOHNSON, J., and McDERMOTT, J., Pro Tem., concur.

BISTLINE, Justice, dissenting.

As the majority notes, “[t]oday we again reaffirm the holding in [State v.] Cotton, [100 Idaho 573, 577, 602 P.2d 71, 75 (1979) ] that the only appropriate instruction on reasonable doubt is the California jury instruction.” It should be remembered, however, that the adoption of the California reasonable doubt instruction in Cotton was not at all unanimous. Chief Justice Bakes, at that time an Associate Justice of the Court, specially concurred in Cotton, wrote what this one member of the Court viewed as being more of a dissent than was a concurrence:

We do not instruct the jury on the definition of ‘moral evidence’ and it is well we don't; otherwise the jury might conclude that a reasonable doubt can be raised by ‘moral evidence’ and not by other kinds, i.e., ‘mathematical’ or ‘demonstrative’ evidence. If we are going to adopt the California jury instruction in Idaho, we ought to excise the word ‘moral’ in front of the word ‘evidence.’

It is problematic whether a jury would be helped any more by giving one than the other, and it may well be that the words themselves, ‘reasonable doubt,’ have a clearer meaning than the definition set out in either instruction. This no doubt accounts for those cases [cited by the majority], which state that either it is error for a trial judge to attempt to define reasonable doubt, or that it is not error to fail to define the term. As the Wyoming Supreme Court recently observed: ‘[T]he term “reasonable doubt” need not be defined and a trial court would be well-advised to avoid instructions on reasonable doubt. Therefore an instruction purporting to define reasonable doubt should not be given. ‘We again reviewed the matter of giving a reasonable doubt instruction in Bentley v. State, Wyo., 502 P.2d 203, 206. In that case we said the phrase “reasonable doubt” is self explanatory and definitions do not clarify its meaning but rather tend to confuse the jury.’ Cosco v. State, 521 P.2d 1345, 1346 (Wyo.1974). Cotton, 100 Idaho at 579–80, 602 P.2d at 77–78.

Another member of that Court, (Bistline, J., specially concurring) observed: On the one hand we have the Court holding that it was error for the trial court to refuse defendant's instruction on reasonable doubt, the Court having in the year 1970 given that instruction the stamp of approval. On the other hand we have one member of the Court casting doubt on that instruction. There is much to what Justice Bakes writes. ‘Beyond a reasonable doubt’ may be sufficient without further explanation and attempts at further refinements to the definition may cause confusion where perhaps none existed. .... It does seem that, the question having been raised by Justice Bakes, some further discussion by the Court might have been in order. Frankly, as with Justice Bakes, I do not see much in the California jury instruction to commend it. Sitting as the new member of a court which has allowed itself to become deeply involved in the making of rules, some of which I fear transcend into the substantive law, it seems that we could take time to delve more deeply into the validity of the instruction now brought in question.

Criticism of the California instruction means little, however, unless it is constructive. Accordingly, I offer up for semantic dissection the following suggested instruction on reasonable doubt: ‘The law gives a defendant in a criminal action a presumption of innocence which presumption remains with the defendant throughout the trial. The law places upon the State the burden of proving the defendant guilty. This is not the burden of proving that the defendant is more likely guilty than innocent, but requires that the evidence presented prove the defendant's guilt beyond a reasonable doubt. Doubt is a word of common usage and needs no further definition. A reasonable doubt is simply a doubt which you would entertain because it is reasonable. If, however, to you the doubt is not reasonable, then you will not entertain it, but cast it out.’ ‘Beyond is equally a word of common usage. Hence you are simply instructed that the evidence presented must convince you at least beyond a reasonable doubt that the defendant is guilty. In reaching a verdict you should be mindful that “beyond a reasonable doubt” is the same quality of proof which you would want required were you a defendant charged with a crime.’ Cotton, 100 Idaho at 580, 602 P.2d at 78 (Bistline, J., concurring specially).

In fact, the instruction here furnished to the Rhoades jury is nothing more than a compilation of vague terms one piled upon another. Reasonable doubt, in one part of the instruction, is not “mere possible doubt” or an “imaginary doubt.” Rather it is “an abiding belief, to a moral certainty,” “an actual doubt,” “an actual doubt based upon the evidence or lack of evidence,” “such doubt as you are conscious of after going over in your minds the entire case,” and it is the “uncertain” and “not fully convinced” feeling, and the belief that would cause a reasonable man (but not woman) to hesitate to act. One worry is that ordinarily reasonable persons performing jury duty on seeing such an abundance of “doubt” may well turn into twelve doubting Thomases. Conversely, the ill-conceived attempt to define what constitutes reasonable doubt could cause the jury to actually lower the state's burden of proof. It is impossible to conclude that the above compilation of ambiguous terms served any purpose other than to confuse the jury.

Moreover, the “moral certainty” language of the instruction has been criticized on high for denigrating the requirement of “evidentiary certainty,” mandated by the due process clause of the fourteenth amendment. The United States Supreme Court wrote in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 330, 112 L.Ed.2d 339 (1990): When those statements [requiring ‘substantial doubt’ and ‘grave uncertainty’] are then considered with the reference to ‘moral certainty’ rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that was required by the Due Process Clause. In light of these considerations of the instruction as given, there is now one justice's certain vote that the better and proper course would be to reverse and remand for a new trial, where, hopefully, an improved instruction, if one is to be given, would be of some aid to the jury.

State v. Rhoades, 120 Idaho 795, 820 P.2d 665 (Idaho 1991). (Baldwin Direct Appeal)

Defendant was convicted of first-degree murder, first degree kidnapping, robbery, and use of firearms following jury trial in the District Court of the Seventh Judicial District, County of Bingham, James C. Herndon, J., and death sentence was imposed. Defendant appealed. The Supreme Court, McDevitt, J., held: (1) that record did not create justiciable controversy to support ruling on repeal of insanity defense; (2) no error was shown on theory of withholding exculpatory evidence by the prosecution; (3) defendant was not entitled to new trial after jailhouse informant testified at postconviction hearing that he would not have testified if he had known the sentence he was going to receive; (4) inculpatory statements were admissible; (5) statute setting time limits on postconviction proceedings in capital cases does not violate due process; (6) error in admitting victim impact statement was harmless; (7) statute did not require defense expert to prepare a report for opposing counsel or to submit to interview, but error in so ruling was harmless; and (8) death sentence was not excessive or disproportionate. Affirmed. Bistline, J., filed opinion concurring in the result and specially concurring in part. Johnson, J., filed opinion concurring and concurring specially.

McDEVITT, Justice.

This case arises from the murder of Stacy Baldwin. Paul Ezra Rhoades has been convicted in three separate murder cases. For the murders of Susan Michelbacher and Stacy Baldwin, Rhoades was sentenced to death, and for the murder of Nolan Haddon he received an indeterminate life sentence based on a conditional plea.

On February 28, 1987, Stacy Baldwin was abducted from the convenience store where she was working near Blackfoot, Idaho. She was then taken to a secluded location and shot several times. She died approximately an hour and a half later. The issues presented in this appeal are: I. Whether a prejudicial statement made by one juror to another should have been grounds for a mistrial. II. Whether the legislative abolition of the defense of mental condition in criminal cases violates the Idaho or United States Constitutions. III. Whether the trial court's failure to make a pretrial ruling on the constitutionality of the statutory abolition of the insanity defense was in error. IV. Whether the prosecution's failure to turn over exculpatory evidence constituted reversible error. V. Whether the trial court should have excluded testimony by a jailhouse informant. VI. Whether inculpatory statements made by Rhoades to the police should have been suppressed. VII. Whether accelerated post conviction procedures in capital cases are unconstitutional. VIII. Whether the court erroneously considered victim impact statements. IX. Whether the death penalty was properly imposed. X. Whether the court erred in compelling a defense expert to prepare a written report or submit to an interview by the prosecutor before testifying. XI. Whether the trial court abused its discretion in denying a motion for continuance to allow for the attendance of the defense's forensic expert. XII. Proportionality of the sentence imposed.

I. PREJUDICIAL STATEMENT BY JUROR

Rhoades asserts that the trial court should have granted a mistrial because of a prejudicial statement allegedly made by one juror to another. After the jury was selected, a deputy sheriff from Bingham County came forward and signed a statement stating that he overheard one juror make a prejudicial remark to another juror during the jury selection process. The deputy testified in a special proceeding outside the presence of the jury, that during a recess he was six to eight feet away from the jury box when he heard a juror say, “you can just look at him and tell that he's guilty.”

Upon learning of this, the trial court undertook an extensive inquiry into the matter. Counsel was permitted to examine the deputy sheriff at length. Several questions were raised concerning the accuracy of his perceptions. The supposed remark did not mention the defendant's name, and the deputy sheriff did not hear any conversation either before or after the statement to indicate the context in which it was made. The court then took testimony from juror Webster, who supposedly made the prejudicial statement, Hinrichs, the juror to whom the remark was addressed, and all other members of the jury. Webster denied having made the remark. Hinrichs denied having heard it. The juror sitting directly in front of Hinrichs did not hear it, nor did any other juror or officer in the vicinity. The court inquired if the jurors were still able to be fair and impartial in their deliberations. Hinrichs and Webster both reassured the court of their ability to be fair and impartial jurors and to judge the case solely on the evidence presented. Based on this testimony, the trial court denied defendant's motion for mistrial.

Appellant has failed to show that the court abused its discretion in denying the motion. The record does not support the contention that any remark was made that would prejudice the defendant. The trial court's finding is supported by the evidence, and accordingly, we hold that the defendant was not prejudiced by jury misconduct and was not entitled to a mistrial.

II.–III. LEGISLATIVE ABOLITION OF THE INSANITY DEFENSE AND PRETRIAL RULING ON THE AVAILABILITY OF THE INSANITY DEFENSE

In 1982 the Idaho legislature abolished the insanity defense in criminal cases, by repealing I.C. § 18–209 and enacting I.C. § 18–207(a), which provides that “[m]ental condition shall not be a defense to any charge of criminal conduct.”

In this case, prior to trial, defense counsel filed a “Request for Declaration that the Enactment of § 18–207, I.C., the Repeal of §§ 18–208, 18–209, I.C. and the Repeal of Rule 12(g), I.C.R. are Unconstitutional.” It was urged that the abolition of the defense deprives criminal defendants of due process rights under the state and federal constitutions. Both parties extensively argued the issue of justiciability; that is, whether there was any factual showing on the record that would grant the court the authority to render a ruling in the nature of a declaratory judgment on the issue. Rhoades had been examined by a psychiatrist pursuant to his counsel's request. However, the defense did not introduce evidence indicating the psychiatrist's conclusions as to whether Rhoades might be suffering from any mental defect. The defense contended that no showing was required under the unique circumstances of a capital case. The defense asserted that the court did have jurisdiction to render a declaratory judgment, in that the nature of a declaratory judgment is to clarify legal uncertainty, and having no legal definition of insanity made it impossible for a psychiatrist to render an opinion on whether Rhoades was legally insane. The defense further argued that even if some showing was required, the prosecution and the court had waived the necessity of presenting preliminary evidence on Rhoades's mental condition when a defense request for psychiatric assistance at state expense was granted without the preliminary showing required. The defense argues that this constituted a waiver of any showing that might be required in the later request for a ruling on the existence of the insanity defense.

Finally, the defense urged that there was a sufficient factual showing on the record to bring Rhoades's sanity into issue. Noting that where the insanity defense is permitted it may be established by lay testimony, the defense cited the preliminary hearing testimony of one of the arresting officers to the effect that on the night Rhoades was arrested he was unstable and incoherent.

The trial court held a hearing on the defense request for a “declaration” that the Idaho statutes were unconstitutional. During that hearing, the court inquired of counsel as to its assertion of any mental defect defense. THE COURT: Gentlemen, I've had the opportunity to read defendant's brief and also plaintiff's brief. I've also had the opportunity to review in detail Judge Boyle's memorandum decision he entered in a companion case in Idaho Falls, where the same issue was raised. I've looked at the Montana cases and also those cases you argue. It's my understanding, Mr. Parmenter, that your client does not at this time tender a defense of insanity? DEFENSE ATTORNEY: Well, that's correct, Your Honor. And that's primarily because of the status of the law. What we're saying is that if we had that law to elect from, we might elect. But as of this point in time, that's correct. THE COURT: Okay. If that is the correct situation, ... there is no insanity defense tendered. Then I must look at it as a matter that presents an issue that is not before the court because the defense has never been claimed. We're actually asked to get into the area of dicta, or perhaps speculation in this matter. There's nothing before the court to indicate an insanity defense has been raised, or the court should act upon it. The court denied the defendant's request for a “declaration.”

The trial court found that the record did not create a justiciable controversy to support a ruling on the issue of the repeal of the insanity defense. We agree. The authority to render a declaratory judgment is bestowed by statute. The Declaratory Judgment Act, contained in Idaho Code tit. 10, ch. 12, confers jurisdiction upon the courts the option to “declare rights, status, and other legal relations, whether or not further relief is or could be claimed.” I.C. § 10–1201. An important limitation upon this jurisdiction is that, “a declaratory judgment can only be rendered in a case where an actual or justiciable controversy exists.” Harris v. Cassia County, 106 Idaho 513, 516, 681 P.2d 988, 991 (1984). This concept precludes courts from deciding cases which are purely hypothetical or advisory. Declaratory judgments by their very nature ride a fine line between purely hypothetical or academic questions and actually justiciable cases. Many courts have noted that the test of justiciability is not susceptible of any mechanistic formulation, but must be grappled with according to the specific facts of each case. Harris v. Cassia County, 106 Idaho 513, 681 P.2d 988 (1984); 22 Am.Jur.2d Declaratory Judgments § 33, at 697. This Court, in Harris, adopted the following language from the United States Supreme Court's definition of justiciability as a guiding standard in the context of declaratory judgment actions:

A “controversy” in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240–41, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937) (citations omitted).

The same principle as pronounced by this Court provides: The Declaratory Judgment Act ... contemplates some specific adversary question or contention based on an existing state of facts, out of which the alleged “rights, status and other legal relations” arise, upon which the court may predicate a judgment “either affirmative or negative in form and effect.” * * * * * * The questioned “right” or “status” may invoke either remedial or preventative relief; it may relate to a right that has either been breached or is only yet in dispute or a status undisturbed but threatened or endangered; but, in either or any event, it must involve actual and existing facts. State v. State Board of Education, 56 Idaho 210, 217, 52 P.2d 141, 144 (1935).

In the present case, there are no actual and existing facts on the record. The record before the trial court, and before this Court, contains nothing more than the statement of counsel that he desired to inquire into the viability of the defense, and that although Rhoades had been examined by a psychiatrist, no opinion in any form as to Rhoades's mental state could be forthcoming unless the court provided an operative legal definition of insanity. The testimony of Officer Rodriguez concerning Rhoades's manner on the night of his arrest likewise does not suffice to create a justiciable controversy on the issue of insanity. The officer stated during the preliminary hearing that on the night of the arrest: Paul Rhoades was either acting as if he was high on some kind of narcotic, or he was high on some kind of narcotics ... he really didn't have much stability ... he had to be helped to walk. He swayed back and forth when he sat down, almost in a drunken stupor. Didn't say too much, and when he did, he mumbled, as if, I would take it, he was not in control of his senses.... Other testimony confirms Officer Rodriguez's impressions of Rhoades's conduct on the night of the arrest, but there is no evidence in the record as to abnormal conduct at any other time. This testimony establishes that Rhoades was having physical difficulty on the night of his arrest, which was assumed by the officers to be the result of drugs or intoxication. The trial court appropriately concluded that such evidence alone does not rise to the level of a showing of the mental condition of the defendant.

The defense argues that any showing that might be required was waived by the prosecution on the defense request for appointment of a psychiatric expert at state expense. The United States Supreme Court, in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), held that the defendant is constitutionally entitled to psychiatric assistance at state expense once a preliminary showing has been made that the mental condition of the defendant is likely to be an issue in the case. Defense counsel urges that the acquiescence by the prosecution and the court in the motion for a court appointed expert without requiring any preliminary showing on the defendant's mental condition, amounts to a waiver of the required showing on the issue. We disagree.

Justiciability is a question of the jurisdiction of the court over the matter at issue. Baird v. State, 574 P.2d 713, 716 (Utah 1978); Mountain West Farm Bur. Mut. Ins. v. Hallmark Ins., 561 P.2d 706 (Wyo.1977). It is axiomatic that a lack of jurisdiction may not be cured by means of stipulation or waiver by the parties. Bowlden v. Bowlden, 118 Idaho 84, 794 P.2d 1140 (1990); White v. Marty, 97 Idaho 85, 540 P.2d 270 (1975), overruled on other grounds by Carr v. Magistrate Court of the First Judicial Dist., 108 Idaho 546, 700 P.2d 949 (1985). Therefore, this defense argument must be rejected. We uphold the trial court's determination that the record does not create a justiciable controversy to support a ruling on the issue of the repeal of the insanity defense. Having done so, we do not reach the constitutional issue of the legislative repeal of the insanity defense.

IV. WITHHOLDING OF EXCULPATORY EVIDENCE BY PROSECUTION

Christian reported the incident to Detective Newbold, who summarized the statement in his report. That report was provided to defense counsel for Rhoades pursuant to the discovery request for Blackfoot Police reports. Newbold's report mentions Christian's written report, and outlines that report in detail. However, neither Christian's nor Love's report was provided to the defense. On appeal, Rhoades argues that the prosecution's compliance with the discovery request was inadequate, and in violation of the prosecutor's duty to turn over all exculpatory evidence to the defense.

We don't believe that the outcome of the trial would have been different had the defense received the two other police reports. Officer Newbold's report provided enough detail to stimulate additional inquiry if the defense had been inclined to do so. The defense had the information that there was a confession to the Baldwin murder, the identity of the confessor, the details of the confession, and the name of the officer who heard the confession. With that information they could have contacted Officer Christian and Kevin Buckholz to determine whether the confession was worth pursuing. The defense claims that had they received the two additional reports from the prosecution then they would have made more of an effort to locate Buckholz. We believe that the defense could have made that determination without the other two police reports.

V. JAILHOUSE INFORMANT TESTIMONY

David Holm testified at trial concerning conversations he had with the defendant while they were in the same cell. At that time, he stated that he had not been offered anything in exchange for his testimony. Later, at a post conviction hearing, Holm testified that he was dissatisfied with the sentence he received in his case, and that had he known the sentence he was going to receive, he would not have testified at the Rhoades trial. Appellant asserts that this change is grounds for a new trial. We disagree.

At the post conviction hearing, when questioned about what he thought he would receive in exchange for his testimony, Holm said: He [the prosecuting attorney] couldn't ever make any promises. Nobody ever did actually make it a promise.... They couldn't guarantee what the judges would do anyway.... I never did expect anything out of it. I hoped. Of course, I think anybody in my position in a situation that they're put under would hope that they would at least get some favorable consideration. But as far as a definite promise or a definite belief, no. I was just—all the time. I did hope. My attorney hoped. And that's about where we're at. We fail to see why misplaced hopes on the part of a witness would be reason to grant a new trial. There is no evidence in the record that any type of reward was promised in exchange for the testimony. In addition, Holm's testimony at trial would not have differed. At the post conviction proceeding, Holm stated: I don't believe there would be any change in my testimony. As far as the case itself. I think the only change there would be as far as—I think would be maybe under the influence. The influences. That actually got me the courage, I guess. I was—you know, I just—I felt assured, You know, that what I was doing was the right thing. And I was assured that it may be in a sense that what I was doing was in essence paying back a debt to society.

The trial court found that this situation did not raise an issue of material fact. We agree.

Appellant further asserts that the trial court should have excluded David Holm's testimony altogether. He argues that jailhouse informants are inherently unreliable, and that Holm, in particular, had a reputation for untruthfulness. We hold that it was not error for the trial court to admit the testimony of David Holm. It is up to the trier of fact to determine the credibility of witnesses: An appellate court may not substitute its judgment for that of the jury regarding the credibility of witnesses, the weight of their testimony, or the reasonable inferences to be drawn from the evidence. State v. Campbell, 104 Idaho 705, 718–19, 662 P.2d 1149, 1162–63 (Ct.App.1983). State v. Clay, 112 Idaho 261, 263, 731 P.2d 804, 806 (Ct.App.1987), review denied. Allowing Holm to testify is not grounds for a new trial. It was the jury's responsibility to weigh the credibility of his testimony.

VI. SUPPRESSION OF INCULPATORY STATEMENTS

Rhoades was arrested March 25, 1987. He was being sought as a suspect in an Idaho murder investigation, when his car was identified in Nevada. A Nevada Highway Patrol Officer, George McIntosh, drove to the scene with two officers from Idaho, Victor Rodriguez and Dennis Shaw. Two Nevada officers, Trooper Neville and Officer Miller, were holding Rhoades at the scene. Another Nevada officer, Shires, arrived at the scene as back up. Shaw testified that as he and Rodriguez approached Rhoades where he was being held against the car by Neville and Miller, Rhoades made a spontaneous statement of, “I did it,” without being directly addressed or questioned by any officer. Miller claims to have heard that first statement, although it was not included in his initial report of the arrest. Miller did include that fact in a supplemental report filed two months later. Officer McIntosh testified that he did not hear the statement, nor was it overheard by Trooper Neville.

Rhoades argues on this appeal that the trial court should have excluded those statements for three reasons: (1) the questionable reliability of the evidence, given the fact that several officers who claimed to overhear the statements failed to record them in their reports until months after the arrest; (2) the failure of the police to tape record the statements; and (3) the statements were the result of the violation of Rhoades's Miranda rights.

On the first point, the defense argues that due process under the state and federal constitutions requires an enhanced degree of reliability during the guilt determination stage of a capital prosecution. We reject this argument. The United States Supreme Court has imposed many procedural protections for capital cases. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). However, these cases do not go so far as to alter the types of evidence or establish a minimum degree of reliability of evidence that is admissible during the fact finding phase of a potential capital case. The prosecution is not required to prove the crime by any higher standard than the “beyond a reasonable doubt” standard used in other criminal cases. Admission of evidence is not governed by any separate rules applicable only to capital cases. Therefore, there is no reason to conclude that testimony which is questionable must be excluded during the guilt determination phase of a capital case. The credibility of evidence in a first degree murder case, as in all others, is an issue for the trier of fact.

Likewise, we cannot accept the contention that in order to be admissible, statements made in custody must be tape recorded by the police. The defense cites an Alaska case, Stephan v. State, 711 P.2d 1156 (Alaska 1985), holding that custodial confessions must be tape recorded in order to be admissible under the due process clause of the Alaska State Constitution. That case represents no more than the prerogative of each state to extend the protections of its own constitution beyond the parameters of federal constitutional guarantees. We decline to adopt Alaska's standard in Idaho.

We now turn to the issue of whether Rhoades's Miranda rights were violated by the police during his arrest and custody. There is some conflict in the record as to whether Rhoades was read his Miranda rights while in the custody of Nevada Officers Miller and Neville, or if he was given the Miranda warnings for the first time by Officer Rodriguez after Rodriguez, Shaw, and McIntosh arrived at the scene. Although the record does not support the trial court's finding that the first statement by Rhoades was preceded by a Miranda warning, that factual issue does not affect our conclusion that both statements were properly admitted into evidence.

The first “I did it” statement, while Rhoades was handcuffed in the parking lot was apparently spontaneous. So spontaneous in fact, that according to uncontested police accounts, Rhoades made the statement without being questioned or otherwise addressed by any of the officers present. As a spontaneous statement, it was admissible whether it occurred before or after Rhoades was read his Miranda rights. “Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.... Volunteered statements of any kind are not barred by the Fifth Amendment.” Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). Although the statement lacked any context to make it meaningful, the trial court correctly concluded that it was for the jury to decide to what Rhoades referred when he said “I did it” at the scene of the arrest.

The second statement at the station house, made in response to Shaw's comment, is also admissible. The trial court found that there was insufficient evidence in the record to support the inference that Rhoades asserted his right to remain silent at any time during the arrest and booking. Officer McIntosh did testify that after Rodriguez finished reading the Miranda rights, Rhoades nodded as if to indicate that he understood. Then McIntosh testified that Rodriguez said something else, which McIntosh could not hear, whereupon Rhoades shook his head. McIntosh took the gesture to mean that Rhoades was asserting his right to remain silent. Those facts are the sole basis in the record for the contention that Rhoades did assert his right to remain silent. There is no evidence in the record as to what Rhoades was responding to when he shook his head negatively. On the strength of this evidence alone, the trial court declined to infer that the shake of the head indicated a desire to remain silent. That finding is not clearly erroneous, given the absolute lack of evidence to the contrary.

Miranda teaches that, “[o]nce warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time, prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473–74, 86 S.Ct. at 1627. In this case, based on the record before us, Rhoades did not assert his right to remain silent. If he had, Shaw's comment, properly found by the trial court to be “the functional equivalent of interrogation,” would have been improper, and the second statement would not have been admissible. The requirement that interrogation must cease comes into play when the accused indicates in any manner that he or she does not desire to converse with the police, or that the presence of an attorney is desired. After rights are read to and acknowledged by the detainee and until the right to silence or counsel is asserted, the police may initiate questioning.

The record indicates that Rhoades was read his rights before the second statement, and acknowledged that he understood them. Although there is evidence that Rhoades was heavily influenced by narcotics at the time of the arrest, Officer Shaw testified that while searching his person, he engaged Rhoades in conversation to test his alertness and found that he had sufficient capacity to understand what was going on around him. In sum, Rhoades had been instructed upon and understood his rights at the time of arrest, and there is insufficient evidence to indicate that he asserted his right to remain silent. For the foregoing reasons we conclude that the second statement made in response to Shaw's “interrogation” is not subject to suppression under Miranda v. Arizona.

VII. ACCELERATED POST CONVICTION PROCEEDINGS

Defendant also claims that I.C. § 19–2719 violates his due process rights, which Beam did not address. Procedural due process issues are raised whenever a person risks being deprived of life, liberty, or property interests because of governmental action. The requirement is that there must be some process to ensure that the individual is not arbitrarily deprived of his rights in violation of the state or federal constitutions. This requirement is met when the defendant is provided with notice and an opportunity to be heard. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The United States Supreme Court provides us with a balancing test to determine if procedural safeguards are adequate in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The three factors to be weighed are: (1) the private interests at stake; (2) the government's interest; and (3) the risk that the procedures used will lead to erroneous results. U.S.C.A. Const.Amends. 5, 14. This Court has employed this due process test in State v. Ankney, 109 Idaho 1, 704 P.2d 333 (1985).

First, obviously, the defendant's interest is in being afforded an adequate opportunity to present legal and factual issues in his defense. Second, the government's interest in enacting I.C. § 19–2719, stated by the legislature, is “to accomplish the purpose of eliminating unnecessary delay in carrying out a valid death sentence.” This was determined by this Court to be a legitimate goal in State v. Beam, 115 Idaho 208, 766 P.2d 678 (1988). The focus, then, of our present inquiry, is the third prong of the Mathews v. Eldridge test, we must determine whether or not I.C. § 19–2719 provides an adequate process to prevent erroneous results and to ensure that death sentences are not carried out so as to arbitrarily deprive a defendant of his life. The statute requires the defendant to file a petition for post-conviction relief within 42 days of the filing of the judgment imposing the sentence of death. These challenges arise out of the judicial proceeding just concluded. At this point, counsel has been closely involved with the case for some time, has been present at trial, and has had notice of all issues that are appropriate to be raised within this 42 day limit. All that counsel is required to do is to organize all challenges and issues that arose during trial and are appropriate for appeal within 42 days. That is not an unduly burdensome task. The statute provides adequate notice to the defendant of exactly what is required of him, and sufficient opportunity for all challenges to be heard. In addition, it serves the purpose of the legislature by preventing the unnecessary delays that occur with so much frequency in capital cases.

In Stuart v. State, 118 Idaho 932, 801 P.2d 1283 (1990), this court remanded a second and subsequent petition for post-conviction relief to the district court for an evidentiary hearing. Stuart had only learned of the facts raised in the second petition after the first petition had been filed. We held that pursuant to I.C. § 19–4908, the second petition was not barred.FN1 It was necessary for the trial court to hold an evidentiary hearing to determine if Stuart's constitutional rights were violated. FN1. It must be noted that Stuart was not decided pursuant to I.C. § 19–2719. This statute was not cited by either Stuart or the State. In Stuart, we cited Palmer v. Dermitt, 102 Idaho 591, 635 P.2d 955 (1981) for the sole proposition that, under the appropriate circumstances, I.C. § 19–4908 did not bar successive petitions for post-conviction relief. At this point, it is important to understand some very important facts.

Palmer was decided pursuant to the waiver provisions of I.C. § 19–4908. Subsequent to Palmer, the legislature enacted I.C. § 19–2719 in 1984. This modified post-conviction proceedings in death penalty cases. Idaho Code § 19–2719(3) requires a defendant to “file any legal or factual challenge as to the sentence or conviction that is known or reasonably should be known.” Idaho Code § 19–2719 limits post-conviction relief to one petition unless it is demonstrated to the satisfaction of the trial judge that this issues being subsequently raised were not “known or reasonably should be known.” Ineffective assistance of counsel is one of those claims that should be reasonably known immediately upon the completion of the trial and can be raised in a post-conviction proceeding.FN2 FN2. In re Cordero, 46 Cal.3d 161, 249 Cal.Rptr. 342, 756 P.2d 1370 (1988) (Habeas Corpus); People v. Bean, 46 Cal.3d 919, 251 Cal.Rptr. 467, 760 P.2d 996 (1988) (Habeas Corpus); Bundy v. Deland, 763 P.2d 803 (Utah 1988); Daniels v. State, 100 Nev. 579, 688 P.2d 315 (1984); Sims v. State, 295 N.W.2d 420 (Iowa 1980); Commonwealth v. Russell, 477 Pa. 147, 383 A.2d 866 (1978).

A careful reading of Palmer reveals that the defendant raised an ineffective assistance of counsel claim in a habeas corpus petition [treated as a petition for post-conviction relief] subsequent to his direct appeal and first post-conviction proceeding. After the direct appeal and first petition failed to produce favorable results, the defendant obtained new appellate counsel and brought a subsequent petition. This Court held that because the defendant had filed a pro se petition immediately after trial raising the ineffective assistance claim, but which claim was omitted through no fault of his own, the defendant had not waived his claims and the subsequent petition was not barred. Therefore we hold that I.C. § 19–2719 provides a defendant one opportunity to raise all challenges to the conviction and sentence in a petition for post-conviction relief except in those unusual cases where it can be demonstrated that the issues raised were not known and reasonably could not have been known within the time frame allowed by the statute. The legislature has seen fit to appropriately limit the time frame within which to bring challenges which are known or which reasonably should be known. The process encompassed in I.C. § 19–2719 providing for review by the trial court and then this Court, provides adequate opportunity to present the issues raised and to have them adequately reviewed. Therefore, I.C. § 19–2719 is not unconstitutional under due process analysis.

VIII. VICTIM IMPACT STATEMENTS

We now turn to the issue of the victim impact statement contained in the presentence report. Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), prohibits the introduction of victim impact statements during the sentencing phase of a capital case as violative of the Eighth Amendment to the United States Constitution. In Booth, there were two types of information presented in the victim impact statement. The first type consists of “a description of the emotional trauma suffered by the family and the personal characteristics of the victims.” The second type contains the “family members' opinions and characterizations of the crimes.” Both types of information are excluded because, “its admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.” Booth, 482 U.S. at 503, 508, 107 S.Ct. at 2533, 2535. Both types of information are present here. In the present case, the portion of the presentence investigation report containing the victim impact statements is as follows:

The victim, Stacy Dawn Baldwin, who was age 21 at the time of her death, was employed as a night clerk at the Mini–Barn Convenience Store in Blackfoot, Idaho. It was while she was discharging her duties in that capacity, that she was robbed, kidnapped and shot to death on 2/28/87. Mrs. Baldwin was married and resided with her husband Myron Baldwin, in Blackfoot, Idaho. She and her husband were active members of the LDS Church. She was athletic and maintained her physical fitness by exercise and swimming. He [sic] husband Myron, indicated that he and Stacy had met in high school in 1981. They had planned to marry after he completed a Mission for the LDS Church. He stated that he was sent on his mission to Canada in 1984, where he spent two years. He returned in April of 1986, and he and Stacy were married on 8/1/86. He indicated that he still suffers emotional stress caused by the senseless murder of his wife. He stated that he wants the maximum sentence given to the man who killed Stacy. He added that he believes in the death sentence. Mr. Baldwin further indicated “I don't want him to ever have the chance to do this to anyone else.” Mr. Baldwin indicated that on the night she was abducted and killed, he should have stayed with her at the Mini–Barn as he usually did on Friday nights, but he had been ill with influenza and she told him she would be OK and for him to stay home.

Evelyn Baldwin, Myron's mother indicated that for several months after Stacy was killed, Myron “Shut the world out,” but time has tempered his pain somewhat and he is again socializing with family and friends. She stated that the Baldwin family is satisfied with the outcome of the trial. She related that they favor a death sentence in this case. The victim's mother, Verna Taylor, recalled in an emotional interview that her daughter's murder was the “biggest shock of her life.” She indicated that the victim had seven siblings all of who still grieve at the loss of their sister. She explained that “Stacy did everything right in her life and didn't deserve to die like that.” She indicated that she has to deal with her feeling about Stacy's death everyday. Mrs. Taylor stated “I hope he burns in hell for what he did to Stacy. I'm glad she fought him.” She added “I approve of capital punishment.”

This is undoubtedly a victim impact statement of the kind contemplated in Booth, and as such, it was error for the trial court to admit it. The next level of inquiry is to determine if the victim impact statement constitutes harmless error under the State v. Paz, 118 Idaho 542, 798 P.2d 1 (1990), exception. In Paz, the Court wrote: This decision should not be interpreted in any fashion to condone or permit victim impact statements in capital cases. Victim impact statements are clearly proscribed by Booth v. Maryland and State v. Charboneau. It is a rare capital case where the inclusion of a victim impact statement will not fatally flaw the entire sentencing procedure. Paz, 118 Idaho at 558, 798 P.2d at 17.

The test to apply to determine if the use of such statements was harmless is whether this Court is assured that “it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Here, three members of the victim's family commented. All three explicitly said that they favored the death penalty in this case. The victim's husband stated that “he wants the maximum sentence given to the man who killed Stacy,” and “that he believes in the death sentence.” The victim's mother-in-law said that the Baldwin family favors a death sentence in this case. The victim's mother stated, “I hope he burns in hell for what he did to Stacy. I'm glad she fought him.... I approve of capital punishment.”

We cannot determine from the record if the trial judge considered or relied on these statements in imposing the death sentence. Since the trial court allowed the victim impact statements to be filed for consideration, we must assume that he did consider them. In that the victim impact statements presented to the court were considered is error under the rule of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989), we must consider if this error requires reversal. This Court, in State v. Paz, 118 Idaho 542, 798 P.2d 1 (1990), relying on Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988), held that victim impact statements included in the presentence report while error could, under appropriate circumstances, be harmless error. The trial court in this case carefully weighed the evidence, including aggravating and mitigating factors. There is no indication that the victim impact statements diverted the trial court from its primary function of considering the person being sentenced and not the victim or the victim's family.

Obviously, the trial court does not make decisions in a vacuum. By the time a judge is called upon to decide on a sentence, the judge has heard the testimony and evidence put on at trial, has seen the impact of the crimes on the victim's family and community, and has been closely involved with the details of the case, sometimes for years. It is evident from the findings of the trial court that the nature of this crime was such that the victim impact statements, if they were considered at all, were not a decisive factor in the decision to impose the death penalty. The facts recited by the court in passing sentence are facts that would have been known to the trial judge without the victim impact statements. In reviewing the record in this case, we are convinced beyond a reasonable doubt that the victim impact statements in the presentence investigation report, describing the family of the victim and their recommendation of sentence, did not influence the trial court in its imposition of sentence. The error was therefore harmless, and the case need not be remanded for sentencing.

IX. WHETHER THE DEATH PENALTY WAS PROPERLY IMPOSED

The Court in Leavitt did not specify what constitutes “adequate consideration of the alternatives,” or exactly what the trial court would have to say to show that the alternatives were adequately considered. Here, in the Findings of the Court in Considering Death Penalty the trial court did not discuss alternatives to the death penalty. However, after those findings were issued, the parties were allowed to file briefs in response to an evidentiary hearing and the defendant raised the issue of alternatives to the death penalty as required by Leavitt. The trial court then addressed this in the Supplement to Memorandum Decision and Order. He stated: The court carefully considered the objectives of sentencing and expressly finds that any rehabilitation that is possible is heavily outweighed by the need to protect society, deter the crime of murder and to punish and obtain retribution for the wrong committed. The court considered penalties less than death, and determines that in this case the imposition of the death penalty would not be unjust but that the imposition of any other sentence would seriously depreciate the seriousness of the crime committed. If any situation ever warranted the death penalty, it is clearly manifest in this case. We hold that this is sufficient to indicate that the trial court did consider alternatives to the death penalty and decided against imposing them after contemplating the unique circumstances of this case.

Defendant next argues that he is entitled to a new presentence report and a new sentencing hearing in order to have the opportunity to present new mitigating circumstances, such as witnesses attesting to his cooperation as a prisoner. We find no support for this argument.

In his Petition for Post Conviction Relief, defendant argued that the trial court did not weigh the mitigating circumstances against each aggravating circumstance as required by State v. Leavitt, 116 Idaho 285, 775 P.2d 599 (1989), and State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). Charboneau set out the requirement: [T]hat all the mitigating circumstances presented must be weighed against each of the aggravating circumstances separately. We hold that the trial court may sentence the defendant to death, only if the trial court finds that all the mitigating circumstances do not outweigh the gravity of each of the aggravating circumstances found and make imposition of death unjust. Charboneau, 116 Idaho at 153, 774 P.2d at 323.

Here, the trial court set forth four and a half pages of mitigating circumstances in his Findings of the Court in Considering the Death Penalty. He was well aware of the requirement in Leavitt and Charboneau and stated: In the weighing process, the court carefully avoids “duplicating” or “stacking” the statutory aggravating factors and weighs each and every mitigating factor found, both singularly and collectively, against each of the statutory aggravating factors. This statement, plus the extensive sections detailing the mitigating factors and aggravating circumstances, is sufficient to show that the trial court completed the weighing process satisfactorily. It would be tedious and repetitive for the court to state each mitigating factor over and over for the five aggravating circumstances found. It is enough to, as in this case, have one section setting forth all mitigating factors and one section setting forth all aggravating circumstances.

As for the defendant's claim that the trial court engaged in impermissible speculation and overemphasized aggravating factors, appellant cites no specific examples in his brief, but says only that “certain comments indicate a predisposed negative attitude towards the defendant.” We find no merit in this argument.

The final issue presented by the defendant concerning the imposition of the death penalty is that he was improperly sentenced by a judge without jury input. This Court has held “that there is no federal constitutional requirement of jury participation in the sentencing process and that the decision to have jury participation in the sentencing process, as contrasted with judicial discretion sentencing, is within the policy determination of the individual states.” State v. Creech, 105 Idaho 362, 373, 670 P.2d 463, 474 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984). In addition, the United States Supreme Court held in Clemons v. Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 1446, 108 L.Ed.2d 725 (1990), that “[a]ny argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court.” In Walton v. Arizona, U.S. , 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), the United States Supreme Court held that Arizona's statute which, like Idaho's, provides for sentencing by a judge in capital cases is not unconstitutional.

X. COMPELLING DEFENSE EXPERT TO PREPARE A WRITTEN REPORT OR TO BE INTERVIEWED BEFORE TESTIFYING

The defendant hired a ballistics and hair expert to examine the State's evidence. The expert did not prepare or provide any written reports to the defense. The prosecutor sought an order from the court requiring the defense to “provide the State with copies of reports of examinations conducted by the defense experts ... whom the defendant intends to call at trial,” or in the alternative to allow the prosecutor to “interview the defense experts; if reports are not, or have not yet been prepared....” The defense objected to this procedure. The trial court ruled that the expert must either provide a written report to the prosecutor or allow the prosecutor to interview him pursuant to Rule 16(c)(2) of the Idaho Criminal Rules, which provides:

Upon written request of the prosecuting attorney, the defendant shall permit the State to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce in evidence at the trial, or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to testimony of the witness. Idaho Criminal Rule 16(c)(2) clearly allows access to reports that the defendant intends to introduce at trial or that were prepared by a witness whom the defendant intends to call at trial. However, in ordering a defense expert to prepare a report for opposing counsel, or to submit to an interview by opposing counsel, the court overstepped the boundaries of the rule. The Washington Supreme Court interpreted an analogous criminal discovery rule, in State v. Hutchinson, 111 Wash.2d 872, 766 P.2d 447 (1989), which involved a similar situation. They held that:

It is undisputed that the defendant may be required to disclose any existing expert's report he intends to use at trial. However, the rule does not say that an expert can be required to make a report at the request of the opposing party. Defense counsel claims that no written reports have been requested, received or written. The clear language of the rule does not authorize the trial court to require the defendant's experts to prepare written reports for the State when they have not been prepared for the defendant. Hutchinson, 111 Wash.2d at 877, 766 P.2d at 450.

XI. DENIAL OF MOTION FOR CONTINUANCE

The defendant planned to call an expert witness, Mr. Fox, to counter the State's ballistic evidence. He was unable to attend due to prior commitments. The defense filed a motion for a continuance, which the trial court denied. The defense then made alternative arrangements with another expert, Ned Stuart, whose findings covered the same area as Fox's conclusions. During the course of the trial, one of Mr. Fox's commitments was taken care of, and he was available to testify. Defendant contends that had he called Fox, the State would then have called Stuart.

Rhoades asserts that it was an abuse of discretion for the trial court to deny the motion for continuance because it resulted in prejudice to the defendant. We disagree. A decision to grant or deny a motion for continuance is vested in the sound discretion of the trial court. State v. Richardson, 95 Idaho 446, 511 P.2d 263 (1973), cert. denied, 414 U.S. 1163, 94 S.Ct. 928, 39 L.Ed.2d 117 (1974). Here, the defendant has not shown that the trial court abused its discretion by denying the continuance. The purpose of the expert witness's testimony was to counter the State's ballistics evidence. This was done. We do not find prejudice to the defendant resulting in an unfair trial as a result of the testimony being given by one expert witness as opposed to another.

XII. PROPORTIONALITY

Idaho Code § 19–2827(c)(3) requires this Court to determine in each capital case, “whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Our perusal of the legislative history regarding the proportionality of sentences does not offer much guidance. The Statement of Purpose and the committee minutes for the bill that was eventually passed and codified as I.C. § 19–2827 expressed only a concern that the Idaho statute be updated to reflect recent ruling by the United States Supreme Court:

STATEMENT OF PURPOSE

Only a few years ago, the United States Supreme Court made new “rules” concerning imposition of the death penalty for serious crimes. So that we conformed with this U.S. Supreme Court interpretation of the federal Constitution, the Idaho Legislature enacted in 1973 our present death penalty Sections 18–4003 and 18–4004, Idaho Code . Then, last year, the United States Supreme Court again changed the rules relating to capital punishment—after many states, like Idaho, had acted in response to its previous decision. The Court, in five cases, set forth new, more definitive rules concerning sentencing where the death penalty was sought to be imposed. The purpose of this bill is to codify into Idaho law these present requirements imposed on the states by these most recent United States Supreme Court decisions on capital punishment so that we will conform with this latest expression of the law. There is no mention of proportionality, or any expression by the legislature that we are required to review the proportionality of sentences with a special standard or test. The requirement that the death sentence not be disproportionate to “the penalty imposed in similar cases,” is one of several considerations this Court must examine in each death penalty case. The legislature did not see fit to establish a separate standard for proportionality review of sentences when I.C. § 19–2827 was enacted.

This Court looked at the proportionality of death sentences in State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), and reviewed several cases in which the death penalty had been imposed or could have been imposed. The Court compared the facts of the crimes with the facts of the case they were reviewing to determine whether or not the sentence was disproportionate. This is the procedure that has been followed by this Court. We must do likewise. In this case, Paul Ezra Rhoades kidnapped Stacy Baldwin from the convenience store where she was working, forced her into a pickup truck and drove her to a secluded area where he attempted to attack her. The trial court found that Baldwin fought back, and: [F]inally as she was on hands and knees trying to get away, he shot at her with his pistol. The first shots missed her and made glancing marks in the snow. Finally his shots hit her. One ricocheting bullet lodged in her elbow and one bullet went through her back and through her lungs. The tread on the soles of his boots left their imprint as he walked towards Stacy, but then he left while she was still alive. She lived for about one to one and one half hours and then died alone in the cold.

In considering this crime and this defendant, compared to similar crimes and similar defendants,FN3 the record in this case and the district court's findings and conclusions in imposing the sentence, we hold that the death sentence is not excessive or disproportionate. FN3. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991); State v. Enno, 119 Idaho 392, 807 P.2d 610 (1991); State v. Sivak, 119 Idaho 320, 806 P.2d 413 (1990); State v. Paz, 118 Idaho 542, 798 P.2d 1 (1990); State v. Smith, 117 Idaho 891, 792 P.2d 916 (1990); State v. Lankford, 116 Idaho 860, 781 P.2d 197, stay granted, 490 U.S. 1061, 109 S.Ct. 2058, 104 L.Ed.2d 623 (1989); State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989); McKinney v. State, 115 Idaho 1125, 772 P.2d 1219 (1989); State v. Fetterly, 115 Idaho 231, 766 P.2d 701 (1988); State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985), cert. denied, 479 U.S. 989, 107 S.Ct. 582, 93 L.Ed.2d 585 (1986); State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985), cert. denied, 479 U.S. 964, 107 S.Ct. 463, 93 L.Ed.2d 408 (1986); State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986); State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985); State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985); State v. Bainbridge, 108 Idaho 273, 698 P.2d 335 (1985); State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984); State v. McKinney, 107 Idaho 180, 687 P.2d 570 (1984); State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984); State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984); State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984); State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983); State v. Major, 105 Idaho 4, 665 P.2d 703 (1983); State v. Mitchell, 104 Idaho 493, 660 P.2d 1336, cert. denied, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983); State v. Carter, 103 Idaho 917, 655 P.2d 434 (1981); State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982); State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981); State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980); State v. Padilla, 101 Idaho 713, 620 P.2d 286 (1980); State v. Fuchs, 100 Idaho 341, 597 P.2d 227 (1979); State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979); State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979).

XIII. CONCLUSION

After independently reviewing the record and transcript describing the character of the defendant, the nature of the crime of which he has been convicted, the circumstances of the crime of which he has been convicted, we hold that there existed an adequate basis for imposing the death penalty. The judgment entered and sentence imposed are affirmed. Upon issuance of the remittitur, the district court shall set a new execution date. I.C. § 19–2719(11).

BAKES, C.J. and WINMILL, J., Pro Tem, concur.

BISTLINE, Justice, concurring in the result and specially concurring as to Part XII.

Concurring generally in most of the Court's opinion, I do question the propriety of citing to companion cases which were facially not at all proportional, referring to State v. Fetterly and State v. Windsor; State v. Beam and State v. Scroggins; State v. Bainbridge and State v. Sivak. Also, upon revisiting my dissent in State v. Major, it is seen as another case which the majority should refrain from citing. As to the companion cases, Fetterly, Beam, and Sivak are awaiting execution; Windsor, Scroggins, and Bainbridge will not suffer that fate. Further enlightenment is readily available in Fetterly, 115 Idaho at 236, 766 P.2d at 706. Even more enlightening are the trial court's remarks at sentencing Karla Windsor to be executed, 110 Idaho at 425–27, 716 P.2d at 1197–99, under the heading of “Findings of Facts and Argument Found in Possible Mitigation,” and concluding with the imposition of the death sentence, plus the remainder of the sentencing remarks set out in Appendix B “Sentencing,” 110 Idaho at 444, 716 P.2d at 1216. For the views of the sentencing judge following this Supreme Court's opinion which vacated the sentence of death and remanded for resentencing, see Part I of State v. Fetterly, 115 Idaho at 232–33, 766 P.2d at 702–03.

In sum, it is submitted that Justice McDevitt's opinion for the Court is a first step in a better direction. Ad hoc assessments of a capital murderer's right to live in perpetual confinement, or be executed should eschew all prior notions (literally, not figuratively) of proportionality, in which this Court has, by rote citation, allowed itself to indulge. Justice McDevitt, at the close of his opinion, correctly observes that Justice Shepard in authoring the 1983 Creech opinion,FN4 reviewed several death penalty cases which in time were subsequent to the 1977 legislative amendment of Idaho's death sentencing provisions. Justice Shepard found and cited to Creech, Lindquist, Needs, and Osborn.FN5 The 1979 Creech case was distinct from the 1983 Creech case, and Justice Shepard detailed the salient facts which led to imposition of death sentences, and concluded that Creech's murder of Dale Jensen was on a par with the murders committed by Osborn, Needs, and Lindquist. The recitation of the cases which he stated as having been reviewed was unnecessary.FN6 FN4. State v. Creech, 105 Idaho 362, 374, 670 P.2d 463, 475 (1983). FN5. State v. Creech, 99 Idaho 779, 589 P.2d 114 (1979); State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979); State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979); and State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981). FN6. The lengthy recitation of the cases in Justice Shepard's opinion will be found in footnote 2, 105 Idaho at 375, 670 P.2d at 476.

It is also high time to comply with our Idaho Constitution and put the awesome decision of life or death back in the hands of twelve tried and true jurors. It was ever thus prior to the adoption of the Idaho Constitution. Just three years ago, Justice Johnson, in Steed v. Young, 115 Idaho 247, 252, 766 P.2d 717, 720 (1988), cited to Christensen v. Hollingsworth, 6 Idaho 87, 93, 53 P. 211, 212 (1898), for the proposition that, “art. 1, § 7 of our Constitution simply secures the right to jury trial ‘as it existed at the date of the adoption of the Constitution.’ ” Justice Huntley has stated the same, and added that in the context of a capital case the jury at the time of statehood had the power to decide between the penalty of life imprisonment, or death, by the degree of murder declared in the verdict. His views are perpetuated, along with my own, in State v. Creech, 105 Idaho at 375–412, 670 P.2d at 476–513.

JOHNSON, Justice, concurring and concurring specially.

I concur in all parts of the Court's opinion, except part XII (Proportionality), in which I concur specially. The legislature has directed us to determine “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” I.C. § 19–2827(c)(3). The legislature copied this provision from the death sentencing scheme enacted in Georgia following the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Ga.Code Ann. § 17–10–35(c)(3) (1982).

In Pulley v. Harris, 465 U.S. 37, 42–43, 104 S.Ct. 871, 875–76, 79 L.Ed.2d 29, 35–36 (1984), the Supreme Court differentiated between traditional proportionality and the proportionality to which I.C. § 19–2827(c)(3) refers: Traditionally, “proportionality” has been used with reference to an abstract evaluation of the appropriateness of a sentence for a particular crime. Looking to the gravity of the offense and the severity of the penalty, to sentences imposed for other crimes, and to sentencing practices in other jurisdictions, this Court has occasionally struck down punishments as inherently disproportionate, and therefore cruel and unusual, when imposed for a particular crime or category of crime. The death penalty is not in all cases a disproportionate penalty in this sense. The proportionality review sought by Harris, required by the Court of Appeals, and provided for in numerous state statutes is of a different sort. This sort of proportionality review presumes that the death sentence is not disproportionate to the crime in the traditional sense. It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime. (Citations and footnotes omitted). In Pulley, the Supreme Court ruled that the statutory proportionality review mandated by statutes such as I.C. § 19–2827(c)(3) is not required by the eighth amendment. Id. In McCleskey v. Kemp, 481 U.S. 279, 306, 107 S.Ct. 1756, 1775, 95 L.Ed.2d 262, 288 (1987), the Supreme Court reaffirmed that this statutory proportionality review is not constitutionally required “where the statutory procedures adequately channel the sentencer's discretion.”

Recently, the United States District Court for the District of Idaho noted that proportionality review is not constitutionally required but that Pulley and McCleskey “make clear that proportionality review may be considered and implemented by the states as an additional safeguard against arbitrarily imposed death sentences.” Beam v. Paskett, 744 F.Supp. 958, 960 (D.Idaho 1990) (emphasis in original).

Therefore, I conclude that the review required by I.C. § 19–2827(c)(3) is entirely governed by the statutory intent of the legislature and not by any constitutional considerations. This statutory intent is revealed by the other provisions of I.C. § 19–2827 and by decisions of this Court applying the statute. I.C. § 19–2827(g) provides that the Court “shall collect and preserve the records of all cases in which the penalty of death was imposed from and including the year 1975.” In State v. Creech, 105 Idaho 362, 375 n. 2, 670 P.2d 463, 476 n. 2 (1983), the Court read I.C. § 19–2827(c)(3) and (g) together “as requiring a comparison of the capital cases from 1975 to the present.” I.C. § 19–2827(a) provides that this Court must review a death penalty sentence “on the record.” In State v. Scroggins, 110 Idaho 380, 387, 716 P.2d 1152, 1159 (1985), the Court construed I.C. § 19–2827(a) and (c)(3) together to require “an independent review of the sentence on the record.” In Scroggins, the Court concluded that the sentence of death imposed in that case was “excessive and disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” 110 Idaho at 387, 716 P.2d at 1159. The Court said:

We have painstakingly considered the record, and in so doing, have focused not only on the crime and the circumstances surrounding its commission but on the age, characteristics, criminal record and personal involvement of this defendant. We must conclude that the death sentence should not have been imposed in this case because in light of the following considerations, the death sentence as applied to this defendant was excessive. Id. (emphasis in original).

Among the considerations discussed by the Court in Scroggins were that Scroggins did not have a history of violent criminal conduct, that his mental age was only 13.8 years, that he was under tremendous psychological pressure, and that he had failed to develop mature responses to stressful situations. 110 Idaho at 388, 716 P.2d at 1160. In State v. Windsor, 110 Idaho 410, 420–22, 716 P.2d 1182, 1192–94 (1985), the Court said: Whenever the death penalty is imposed this Court is required to conduct an independent review of the record to insure ... that when both the crime and the defendant are considered, a sentence of death is not excessive or disproportionate. After careful consideration of both the crime and the defendant, we conclude that the sentence of death imposed in this case was excessive and disproportionate. We therefore set aside the death sentence and remand for resentencing. .... The concept of individualized sentencing is firmly entrenched in modern American jurisprudence. The familiar maxim that punishment should fit the crime has been broadened to provide that punishment should also fit the criminal. With this in mind, we now turn our focus to the defendant as an individual, outlining those factors in Windsor's background and character which convince us that the death penalty was excessive in this instance. We begin by noting that Windsor, unlike the majority of capital defendants, has no formal criminal record nor significant history of prior criminal activity. There is no history of violent criminal activity, nor is there an indication that Windsor possesses any propensity toward violence. (Citation omitted).

The Court then reviewed other circumstances of Windsor personally, including her skills and abilities, her education, her experience and training, her troubled childhood and serious problems in her home environment. 110 Idaho at 422–23, 716 P.2d at 1194–95. The trial court described the crime in this case in the findings of the court in considering the death penalty: The Defendant Paul Ezra Rhoades ... was observed loitering around convenience stores in Blackfoot and Idaho Falls and watching the female employees. On February 28, 1987, the defendant entered [a convenience store] in Blackfoot, Idaho. He worked nearby as a drywaller and frequented the store, but on this evening, he stayed only a short time and then left. Near midnight he returned and at gunpoint robbed the till and forced clerk, Stacy Dawn Baldwin, age 21, into his pickup and drove her to a secluded spot near the Snake River just off Rose Road in Bingham County. He attempted to attack her, she fought back, and finally as she was on hands and knees trying to get away, he shot at her with his pistol. The first shots missed her and made glancing marks in the snow. Finally his shots hit her. One ricocheting bullet lodged in her elbow and one bullet went through her back and through her lungs. The tread on the soles of his boots left their imprint as he walked toward Stacy, but then he left while she was still alive. She lived for about 1 to 1 1/2 hours and then died alone in the cold.

The trial court described the defendant in this case in the findings of the court in considering the death penalty: The defendant, male caucasian, was born January 18, 1957. He is unmarried. Until incarcerated he lived with his parents.... He has a close relationship with his parents, two brothers and two sisters. He was born and raised in Idaho Falls, Idaho. He liked grade school, but he had other interests in junior and senior high school and he dropped out of school in the 9th grade. He attempted to enlist in the armed forces, but was rejected because of physical problems caused by polio during his early childhood. He went to work ... at 16 years of age, but was involved in an industrial accident and the tips of his fingers were cut off. When his fingers healed, the defendant went to work with his uncle and his father and later his brother in the drywall construction business. The defendant is considered an excellent craftsman. The defendant describes his interests as fishing and boating and reading “fantasy” novels.

The defendant denies any serious relationships or romantic ties with women, although he has numerous female friends. His mother describes him as responsible and easy going and a non-violent person that does not hold a grudge and who “never went out looking for trouble.” She points out that children liked him and that he was a “father image to children” in the neighborhood and those he babysat. The defendant suffered with polio at about age 4 and spent considerable time in the [hospital]. The illness necessitated that he have many operations on his feet and suffered considerable pain and as a result, the defendant is not well coordinated. His aunts and lady friends describe the defendant as being a very compassionate person who was responsible and trustworthy. One friend ... describes him as “being her big brother” who can listen to her and in whose presence she feels comfortable. .... He admits that he has abused alcohol and drugs.

The presentence investigation report indicates that Rhoades had a prior criminal record that included offenses of resisting and obstructing an officer, petit theft, inattentive driving, driving while suspended, infamous crime against nature, rape, kidnapping, first degree murder, use of a firearm in the commission of a felony, second degree murder and robbery. As directed by I.C. § 19–2827(c)(3) and the decisions of this Court interpreting it, I have reviewed the sentence of death imposed on Rhoades in this case compared to the penalty imposed in similar cases in which the sentence was imposed in 1975 or later, considering both the crime and the defendant, to determine whether Rhoades' sentence is excessive or disproportionate. For ease of reference, I append a summary of the cases I have compared.

The cases I find most similar to this one so far as the crime is concerned are: 1. State v. Pizzuto (death penalty imposed) 2. State v. Searcy (fixed life imposed) 3. State v. Lankford (death penalty imposed) 4. State v. Smith (fixed life imposed) 5. State v. McKinney (death penalty imposed) 6. State v. Fetterly (death penalty imposed) 7. State v. Bainbridge (fixed life imposed) 8. State v. Paradis (death penalty imposed) 9. State v. Sivak (death penalty imposed; vacated on procedural grounds; remanded for resentencing)

The death penalty was imposed by the trial court and upheld by this Court in the majority of these cases. On the basis of this comparison of these case in which the crime was similar to the murder in this case, I find the death sentence imposed on Rhoades in this case not to be excessive or disproportionate.

The cases I find most similar to this one so far as the defendant is concerned are: 1. State v. Pizutto (death penalty imposed) 2. State v. Searcy (fixed life imposed) 3. State v. Smith (fixed life imposed) 4. State v. Beam (death penalty imposed) 5. State v. Aragon (death penalty imposed)

The death penalty was imposed by the trial court and upheld by this Court in a majority of these cases. On the basis of this comparison of these cases in which the circumstances of the defendant were most similar to the circumstances of Rhoades, I find the death sentence imposed on Rhoades not to be excessive or disproportionate.

APPENDIX TO RHOADES (Baldwin) OPINION OF JOHNSON, J.

State v. Enno, 119 Idaho 392, 807 P.2d 610(1991). Eighteen-year-old male, suffered to a moderate degree from an anti-social personality disorder, severe alcoholic, troubled childhood. Defendant and victim were drinking together at a bar after which they traveled to a remote area where victim apparently made sexual advances toward defendant. Victim taunted defendant after he refused her advances which prompted defendant to choke victim until blood came out of her mouth. During the ensuing struggle victim and defendant ended up outside of the automobile after which defendant struck victim with a board and later repeatedly ran over her with the automobile. Defendant then burned the body of the victim with lighter fluid and charcoal. Fixed life. Affirmed.

State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991). Previously convicted of criminal sexual conduct and manslaughter in other states. Sociopath exhibiting “explosive features,” violent individual, expressed no remorse, history of violent behavior. Pizzuto robbed and murdered woman and her adult nephew in their cabin with a hammer, one of the victims was also shot, victims were buried in a shallow grave near the scene of the murders. Convicted of first-degree murder, felony murder, robbery. Death sentence imposed. Affirmed.

State v. Searcy, 118 Idaho 632, 798 P.2d 914 (1990). Troubled childhood, addiction to cocaine, psychiatric evidence indicating lack of mental responsibility. Committed various crimes to support chemical dependency. Defendant planned robbery of victim's grocery store in order to get money to buy cocaine. Defendant hid in store where he was later confronted by victim, a struggle followed during which defendant shot victim in the stomach. Defendant told victim that if she opened the safe, he would call an ambulance. Victim opened the safe after which defendant placed a rifle to her head and shot and killed her. Convicted of first- degree murder and robbery, sentenced to determinate life sentence on first- degree murder, indeterminate life sentence on robbery and enhancement of 10 years for use of firearm. Judgment of conviction affirmed, sentence imposed, remanded to trial court with instruction to impose sentence with defendant present.

State v. Paz, 118 Idaho 542, 798 P.2d 1 (1990), cert. denied ___ U.S. _____, 111 S.Ct. 2911, 115 L.Ed.2d 1074 (1991). Prior manslaughter conviction in Oregon, showed no rehabilitation after previous fines, probation, incarceration and parole, high probability that Paz would remain unpredictable and irrational in overreacting to confrontation and likely to kill fellow inmates if imprisoned. Shot and killed victim in restaurant after earlier engaging in verbal exchange with victim and two of victim's companions, companions seriously injured in shooting. First Degree Murder. Death penalty imposed. Affirmed.

State v. Smith, 117 Idaho 891, 792 P.2d 916 (1990). Chemical dependency, dominated by his brother (deceased accomplice), various prior criminal activity and outstanding warrants. Body of victim was discovered in a partially burned stolen Cadillac. Later, .22 and .38 caliber bullets were removed from the victim's body and fingerprints of defendant were found in the Cadillac. Convicted of first- degree murder, robbery, and third- degree arson. Fixed life sentence on conviction of first- degree murder and consecutive fixed- life sentence on robbery conviction. Affirmed.

State v. Lankford, 116 Idaho 860, 781 P.2d 197 (1989), cert. denied ___ U.S. _____, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990). Aggressive antisocial personality prone to violence. Defendant and brother robbed and murdered retired marine officer and wife while camping in Idaho County, victims held at gunpoint and killed with multiple blows to the skull from night stick. Convicted of two first- degree murders, death penalty imposed. Affirmed.

State v. Charboneau, 116 Idaho 129, 774 P.2d 299(1989), cert. denied 493 U.S. 922, 110 S.Ct. 287, 107 L.Ed.2d 267 (1989) and 493 U.S. 923, 110 S.Ct. 290, 107 L.Ed.2d 270 (1989). Defendant had previously committed several violent acts towards victim (his ex-wife), purchased rifle used in killing days before shooting. Defendant repeatedly shot former wife with .22 caliber rifle outside of her home. First-degree murder. Death penalty imposed. Conviction affirmed, sentence vacated because of consideration of victim impact statement, and remanded for resentencing.

McKinney v. State, 115 Idaho 1125, 772 P.2d 1219 (1989), cert. denied ___ U.S. _____, 110 S.Ct. 3292, 111 L.Ed.2d 800 (1990). Defendant claimed he was physically and sexually abused by his father as a child. Defendant and female companion devised a plan to rob and kill victim, a recent acquaintance, lured victim into the desert and shot execution style. See McKinney below. Along with first- degree murder also convicted of conspiracy to commit murder, robbery and conspiracy to commit robbery. Death penalty imposed. Affirmed.

State v. Fetterly, 115 Idaho 231, 766 P.2d 701 (1988), cert. denied 492 U.S. 925, 109 S.Ct. 3262, 106 L.Ed.2d 607 (1989). Prior criminal record. Along with co-defendant Windsor, was convicted of first-degree murder, burglary and grand theft for the robbery and stabbing death of the victim whom they later dumped in the Snake River. Along with murder, convicted of burglary and grand theft. Death penalty imposed. Affirmed.

State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985), cert. denied 479 U.S. 964, 107 S.Ct. 463, 93 L.Ed.2d 408 (1986). No formal criminal record or history of prior criminal activity, defendant cooperative, skills and ability which indicate defendant may ultimately be capable of maintaining employment and functioning as a productive member of society, troubled childhood. Along with co-defendant Fetterly, was convicted of first-degree murder, burglary and grand theft for the robbery and stabbing death of the victim who they later dumped in the Snake River. Windsor did not commit actual act of stabbing victim. First-degree murder. Death penalty imposed. Sentence of death vacated because sentence was excessive and disproportionate.

State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985), cert. denied 479 U.S. 989, 107 S.Ct. 582, 93 L.Ed.2d 585 (1986). No history of violent criminal conduct, inadequate upbringing, age 18 at the time of crime (mental age was 13.8 years), failed to develop mature responses to stressful situations. Defendant and co-defendant (Beam) were involved in the rape and subsequent murder of a 13-year-old female victim, the victim was drowned and throat was slashed, jury indicated that defendant committed only attempted rape and did not directly commit the crime of murder, defendant reported crime to the police. Convicted of first- degree murder and attempted rape, sentenced to death. Sentence vacated, sentence of death was excessive and disproportionate to penalty imposed in similar cases.

State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985). Defendant engaged in abuse of other women and their minor children prior to relationship with present girlfriend and her son, defendant had committed at least three prior rapes along with numerous examples of other violent behavior. Defendant convicted in the beating death of a three- year- old boy, the son of his live-in girlfriend, evidence of numerous incidences of physical abuse of victim prior to death. Convicted of murder by torture in first- degree. Death penalty imposed. Affirmed.

State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985), cert. denied 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986). See Fetterly above. First-degree murder. Death penalty imposed. Affirmed.

State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), cert. denied 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 (1986) and 489 U.S. 1073, 109 S.Ct. 1360, 103 L.Ed.2d 827 (1989). The defendant abused drugs, was on parole for burglary when the murder was committed, had been exposed to and participated in prior sexually deviant behavior, had tortured animals, was impulsive, and lacked any adequate conscience. The victim, a thirteen- year- old girl, was handcuffed and raped, semen was found in her vagina and rectum, the victim's throat was slashed and the cause of death was listed as drowning. Convicted of first-degree murder, rape, death penalty imposed. Affirmed.

State v. Bainbridge, 108 Idaho 273, 698 P.2d 335 (1985). Evidence was admitted indicating defendant's behavior and thinking were suggestive of organic brain disfunction possibly caused or enhanced by a severe head injury from a motorcycle accident, defendant was viewed as being good natured and eager to please, hypersuggestable to the influence of others, reading and writing problem although not retarded, 10th grade education. Victim, a female cashier who was acquainted with defendant and Sivak, was shot several times and stabbed numerous times while working at gas station, victim was also sexually assaulted, defendant along with co-defendant (Sivak) robbed store. Defendant was convicted of first- degree murder and robbery, sentenced to two consecutive fixed-life sentences. Reversed and remanded for new trial because of various errors at trial.

State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984). At the time of the incident the defendant was calm, refused to aid the victim or seek help and began planning a cover-up of his involvement, past criminal record including charges of child abuse and assault with a deadly weapon, lack of remorse over death of victim, no further description provided. Victim, eight- month- old child and daughter of defendant's female roommate died from severe blows to the head administered by defendant while victim was in bathtub. First-degree murder. Death penalty imposed. Affirmed.

State v. McKinney, 107 Idaho 180, 687 P.2d 570 (1984), cert. denied ___ U.S. _____, 110 S.Ct. 3292, 111 L.Ed.2d 800 (1990). Defendant and female co-defendant (Small) were traveling from California through Idaho planning to hitchhike through Montana or Canada, no further description of defendant provided. Defendant repeatedly shot victim, a recent acquaintance, with .22 caliber pistol after driving to an abandoned gravel pit presumably for target practice, victim was also robbed and car was stolen. The killing was done in a cold-blooded and callous fashion, sole motive was monetary gain, victim shot in the body and killed, execution style. Convicted of first- degree murder, conspiracy to commit murder, robbery, and conspiracy to commit robbery, death sentence imposed. Affirmed.

State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), cert. denied 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984). Member of Spokane motorcycle gang, no further description provided. Male and female victims, who both were acquainted with co-defendants, were seen together before their van was later seen driving up a sparsely populated mountain road in Idaho. Three men were later seen leaving the sparsely populated area, including in the three men was defendant. The bodies of victims were later found. Male had been beaten severely around the head, female had been strangled and placed in a stream bed, it was determined that male was killed in Washington while female was killed in Idaho. Defendant was acquitted of the murder of male and extradited to Idaho for the murder of the female. First- degree murder. Death penalty imposed. Affirmed.

State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983), cert. denied 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984). Extensive prior criminal record, capable of manipulation, remorse is questionable, background includes extensive use of drugs and/or alcohol, not able to cope with pressure and may act out against society again, dishonorable discharge from service, uncooperative while on prior probation. See Paradis above, defendant acquitted in murder of male, extradited to Idaho for murder of female. First- degree murder. Death penalty imposed. Affirmed.

State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), cert. denied 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984); 112 Idaho 197, 731 P.2d 192 (1986); 119 Idaho 320, 806 P.2d 413 (1990). Defendant by prior conduct and conduct in the commission of the murder at hand has exhibited a propensity to commit murder which will probably constitute a continuing threat to society, defendant dominated his co-defendant, defendant had previously worked at the gas station and knew victim, had expressed prior animosity. See Bainbridge above. Defendant was found to have delivered the death blows to victim. Convicted of first-degree murder, robbery, possession of a firearm during commission of felony, death penalty imposed. Sentence vacated on procedural grounds; remanded for resentencing.

State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), cert. denied 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984). Defendant previously convicted of other murders, exhibited utter disregard for human life, propensity to commit murder, under sentence for first-degree murder at the time of his actions. While working as a janitor in prison, defendant engaged in argument with a fellow inmate. Defendant struck fellow inmate with sock containing batteries causing severe head injury and ultimate death of victim. First- degree murder. Death penalty imposed. Affirmed.

State v. Major, 105 Idaho 4, 665 P.2d 703 (1983). Married, two children, heroin user. Defendant and male victim had been drinking together in a local bar, defendant and victim left and went to victim's home, the body of the victim was found approximately three days later in his home, victim died from multiple stab wounds including numerous slashes to the throat. Defendant and his wife fled to California, were later arrested and extradited to Idaho. First- degree murder. Fixed life. Affirmed.

State v. Mitchell, 104 Idaho 493, 660 P.2d 1336, cert. denied 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983). Wife of victim, user of prescription drugs and alcohol. Although it was initially suspected that victim had been murdered by strangulation during a burglary of victim and defendant's home, defendant later convicted in the contract killing of her husband. First-degree murder. Indeterminate life sentence. Affirmed.

State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982). Defendant had a history of family and physical problems which inhibited his ability to learn, verbal skills tested in the dull normal range, I.Q. tested in the dull normal to high normal range, psychiatrist report indicated defendant was competent to stand trial, defendant had an aversion towards homosexuals. Victim, a homosexual male, was stabbed 33 times, defendant claims victim made homosexual advances towards him, defendant took and sold some of the victim's property after the murder. Convicted of grand larceny and first- degree murder. Defendant appeals conviction for first- degree murder, affirmed, sentence not specified in opinion.

State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981). Employed at Pocatello cafe, co-worker of victim, seen together in hotel the day before murder and together in an automobile on the day of the murder. Evidence of intoxication on the day of murder, found competent to stand trial, history of antisocial behavior and alcohol/drug abuse. Defendant and victim, a female co-worker, observed in hotel room the evening before the murder took place, stopped by police officer on the day of the murder after which the police officer instructed victim to drive the automobile because of defendant's intoxicated state, body of victim later found shot three times in the head, once in the shoulder and once in the abdomen, extensive bruising of face and fracture of her nose. Defendant later found in possession of a pistol with blood on his vest, chest and boots, blood in automobile, victim found partially clothed along side of a road. Defendant pled guilty to first- degree murder, death penalty imposed. Reversed and remanded for resentencing because of trial court's failure to specify in writing the mitigating factors it considered.

State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979). Wife of victim, prior evidence of violent activity directed at victim. Body of victim discovered partially burnt, without head and arms, wrapped in a bed sheet and covered by a door. Death of victim caused by either gun shots, decapitation, or a slit throat. First-degree murder. Sentence of life imprisonment. Affirmed.

State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979). Very intelligent and educated, construction engineer, hired by former employer to kill his wife in order to collect insurance proceeds. Lured victim to remote area under false pretext, beat victim on the head with a 2 x 4 wooden club, victim able to climb into the back of her car and lock the doors, defendant shot victim to death through the closed window of the car. Death penalty imposed. Also found guilty of lesser included offense of second- degree murder. Sentence and first- degree murder conviction set aside, second- degree murder conviction imposed, case remanded for resentencing because of unconstitutional language of statute requiring death penalty in first- degree murder cases.

State v. Rhoades, 121 Idaho 63, 822 P.2d 960 (Idaho 1991). (Michelbacher Direct Appeal)

McDEVITT, Justice.

I.–II.LEGISLATIVE ABOLITION OF THE INSANITY DEFENSE AND PRETRIAL RULING ON AVAILABILITY OF INSANITY DEFENSE

The defense contended that no showing was required under the unique circumstances of a capital case. The defense asserted that the court did have jurisdiction to render a declaratory judgment, in that the nature of a declaratory judgment is to clarify legal uncertainty, and having no legal definition of insanity made it impossible for a psychiatrist to render an opinion on whether Rhoades was legally insane. The defense further argued that even if some showing was required, the prosecution and the court had waived the necessity of presenting preliminary evidence on Rhoades's mental condition when a defense request for psychiatric assistance at state expense was granted without the preliminary showing required by statute. The defense argues that this constituted a waiver of any showing that might be required in the later request for a ruling on the existence of the insanity defense. Finally, the defense urged that there was a sufficient factual showing on the record to bring Rhoades's sanity into issue. Noting that where the insanity defense is permitted it may be established by lay testimony, the defense cited the preliminary hearing testimony of one of the arresting officers to the effect that on the night Rhoades was arrested he was unstable and incoherent.

The trial court held a hearing on the defense request for a “declaration,” which consisted of the court inquiring of defense counsel if he was asserting the defense of insanity, if he had an offer of proof that the sanity of the defendant was in question, or an opinion from the psychiatrist that examined the defendant. Defense counsel replied to each inquiry that he could offer no proof until he had a legal standard by which to define insanity. THE COURT: Do you have an insanity defense that you are raising, or is this an academic exercise we're going through? ... If you have a defense, and you have an expert who is going to testify that this is an issue in this case, then I want to know that. ATTORNEY: Your Honor, I'm sure the Court is thinking of Ake v. Oklahoma where the U.S. Supreme Court spoke on an indigent's right to have a psychiatrist appointed at public expense. The problem we have here, Your Honor, is there's little authority out of the Supreme Court in this area, that's one of the few cases that come even close to our situation. THE COURT: My question is, though, do you have, after having Mr. Rhoades examined by a psychiatrist of your choosing, an opinion that the insanity issue is present in this case? ATTORNEY: Your honor, may I have just a minute, I want to address the precise question the Court is posing to me. In light of Ake, we've been afforded the psychiatrist, ... and if you read the Ake decision, the Court explicitly states that the purpose of providing that psychiatrist at an early point is to allow the defense an opportunity to determine whether a defense is viable ... my point here today ... is that the psychiatrist does me no good unless we know what the law and legal standard is. THE COURT: You're evading my question. My question, and I want an answer to it, is direct, do you have an opinion from your expert that the sanity of this defendant is in question? ATTORNEY: Your Honor, I have no opinions from my expert at this time for the simple reason it was to be my next point, that until we know what the legal standard is for a possible sanity defense, defense of mental conditions excluding responsibility of the law, until we know what that is.... THE COURT: I'm going to go back, the question I'm concerned with is whether or not your expert who examined Mr. Rhoades months ago has rendered an opinion at any time indicating that there is a viable issue as to sanity or the ability of this man to understand what he did and to formulate an intent? I need an answer to that question, and we've danced around it, but we haven't had that directly presented to the Court. Has your expert given you any type of an opinion as to the mental condition of this defendant? ATTORNEY: Your Honor, again I'm not sure I understand the question.... The trial court issued a Memorandum Decision refusing to rule on defendant's motion to find I.C. § 18–207 unconstitutional, finding that in the absence of expert testimony or evidence, there was no legitimate issue before the court. Defendant moved to appeal this decision, and another hearing was held. Again, the court asked defense counsel for an offer of proof, and again, none was given. THE COURT: Let me ask you again as I did in August, do you have,—do you represent to this Court that you have expert testimony available to establish the viability of insanity defense in this case? ATTORNEY: Well, I'll answer it the way I answered it. First of all, I don't know whether I do or not because a psychiatrist, forensic psychiatrist without a legal standard defining what insanity is could not possibly give me an opinion. That's where that sits. Defendant's motion to appeal was denied.

The trial court found that the record did not create a justiciable controversy to support a ruling on the issue of the repeal of the insanity defense. We agree.

Declaratory judgments by their very nature ride a fine line between purely hypothetical or academic questions and actually justiciable cases. Many courts have noted that the test of justiciability is not susceptible of any mechanistic formulation, but must be grappled with according to the specific facts of each case. Id.; 22 Am.Jur.2d Declaratory Judgments § 33, at 697. This Court, in Harris, adopted the following language from the United States Supreme Court's definition of justiciability as a guiding standard in the context of declaratory judgment actions: [A] controversy in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241–42, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937) (citations omitted).

The testimony of Officer Rodriguez concerning Rhoades's manner on the night of his arrest likewise does not suffice to create a justiciable controversy on the issue of insanity. The officer stated during the preliminary hearing that on the night of the arrest: Paul Rhoades was either acting as if he was high on some kind of narcotic, or he was high on some kind of narcotics.... [H]e really didn't have much stability ... he had to be helped to walk. He swayed back and forth when he sat down, almost in a drunken stupor. Didn't say too much, and when he did, he mumbled, as if, I would take it, he was not in control of his senses, ... Other testimony confirms Officer Rodriguez's impressions of Rhoades's conduct on the night of the arrest, but there is no evidence in the record as to abnormal conduct at any other time. This testimony establishes that Rhoades was having physical difficulty on the night of his arrest, which was assumed by the officers to be the result of drugs or intoxication. The trial court appropriately concluded that such evidence alone does not rise to the level of a showing of the mental condition of the defendant.

The defense argues that any showing that might be required was waived by the prosecution at the time of the hearing on the defense request for appointment of a psychiatric expert at state expense. The United States Supreme Court, in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), held that the defendant is constitutionally entitled to psychiatric assistance at state expense once a preliminary showing has been made that the mental condition of the defendant is likely to be an issue in the case. At the hearing, the prosecution represented that it had no objection to the appointment of a psychiatric expert, and further stated that: From the state's point of view from what we understand the evidence to be we would understand why they seek these two particular appointments, so we would urge the Court to go ahead and adopt that without requiring any further showing. Defense counsel urges that this statement by the prosecution, and the court's acquiescence in the motion for a court appointed expert without requiring any preliminary showing on the defendant's mental condition, amounts to a waiver of the required showing on the issue. We disagree.

Justiciability is a question of the jurisdiction of the court over the matter at issue. Baird v. State, 574 P.2d 713, 716 (Utah 1978); Mountain West Farm Bureau Mut. Ins. v. Hallmark Ins., 561 P.2d 706 (Wyo.1977). It is axiomatic that a lack of jurisdiction may not be cured by means of stipulation or waiver by the parties. Bowlden v. Bowlden, 118 Idaho 84, 794 P.2d 1140 (1990); White v. Marty, 97 Idaho 85, 540 P.2d 270 (1975), overruled on other grounds (1985). Therefore, this defense argument must be rejected. We uphold the trial court's determination that the record does not create a justiciable controversy to support a ruling on the issue of the repeal of the insanity defense. Having done so, we do not reach the constitutional issue regarding the legislative repeal of the insanity defense.

III.–IV. COMMENT BY THE PROSECUTOR AND LIMITATION ON JUROR INQUIRY

Defense counsel suggests that this constitutes reversible error because it referred to the defendant's failure to testify on his own behalf. We disagree. The comment in question must be looked at in the context in which it was made. Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). Boyde v. California, involved a similar situation. The appellant asserted that comments made by the prosecutor immediately before the jury began sentencing deliberations unfairly influenced the jury. The Court stated: “This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court. And the arguments of counsel, like the instructions of the court, must be judged in the context in which they are made.” (citations omitted). Id. 110 S.Ct. at 1200.

In the present case, the prosecuting attorney made several references to the defense counsel's failure to explain the State's evidence. Each of these statements referred to the evidence presented by the defense, not about the defendant's failure to testify. So it was with the comment in question. The trial court, in an Order Denying Motion for New Trial, found that: The prosecutor's comment, when viewed by itself, may appear to be improper on the surface, however, when viewed in the entire context and perspective of the trial, and the context of the comment, the Court is firmly of the belief beyond a reasonable doubt that any error was harmless.

This finding was based on several facts. The prosecutor immediately corrected himself after making the statement, during voir dire each juror was told that the defendant did not have to testify and that the burden of proving the defendant's guilt beyond a reasonable doubt was on the State, and the jury was given an instruction that they could not draw any inference of guilt from the defendant's failure to testify, nor could that fact enter into their deliberations in any way. In addition, the trial court offered to reinstruct the jury on the issue of the defendant's failure to testify, but that offer was rejected by defense counsel. We agree that, taken in context, the statement made by the prosecutor did not pertain to the defendant's failure to testify, but instead was a comment on the sufficiency of the defendant's evidence. It is entirely permissible for the prosecutor to comment on inconsistencies in the evidence presented by the defendant, United States v. Scott, 660 F.2d 1145, cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982), and to draw inferences from those inconsistencies. United States v. Ellis, 595 F.2d 154, cert. denied, 444 U.S. 838, 100 S.Ct. 75, 62 L.Ed.2d 49 (3rd Cir.1979).

V. ACCELERATED POST CONVICTION PROCEEDINGS

VI. SUPPRESSION OF INCULPATORY STATEMENTS

After being read his rights, Rhoades was transported to the Highway Patrol Substation in Wells, Nevada. He did not make any statements en route. Officers Shires, Miller, Neville, McIntosh, Shaw, and Rodriguez were present at the station. Shaw made a statement to the defendant to the effect that if he had been apprehended earlier, the victims of his crimes might still be alive. Rodriguez testified that in response to that statement, Rhoades stated, “I did it.” This second statement at the station was not part of Miller's initial report, although he claims to have overheard it. Both Shires and Miller reported the statement in supplemental reports filed several months after the arrest. The statement was also not recorded by Officer Shaw in his report. Rhoades made no further statements. Rhoades argues on this appeal that the trial court should have excluded those statements for three reasons: (1) the questionable reliability of the evidence, given the fact that several of the officers who claimed to overhear the statements failed to record the fact in their reports until months after the arrest; (2) the failure of the police to tape record the statements; and (3) the statements were the result of the violation of Rhoades's Miranda rights.

On the first point, the defense argues that due process under the state and federal constitutions requires an enhanced degree of reliability during the guilt determination stage of a capital prosecution. We reject this argument. The United States Supreme Court has imposed many procedural protections for capital cases. See, e.g., Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). However, these cases do not go so far as to alter the types of evidence or establish a minimum degree of reliability of evidence that may be admissible during the fact finding phase of a potential capital case. The prosecution in such cases is not required to prove the crime by any higher standard than the “beyond a reasonable doubt” standard used in other criminal cases. Admission of evidence is not governed by any separate rules applicable only to capital cases. Therefore, there is no reason to conclude that testimony which is questionable must be excluded during the guilt determination phase of a capital case. The credibility of evidence in a first degree murder case, as in all others, is an issue for the trier of fact.

The second statement at the station house, made in response to Shaw's comment, is also admissible. The trial court found that there was insufficient evidence in the record to support the inference that Rhoades had asserted his right to remain silent at any time during the arrest and booking. Officer McIntosh did testify that after Rodriguez finished reading the Miranda rights, Rhoades nodded as if to indicate that he understood. Then McIntosh testified that Rodriguez said something else, which McIntosh could not hear, whereupon Rhoades shook his head. McIntosh took the gesture to mean that Rhoades was asserting his right to remain silent. Those facts are the sole basis in the record for the contention that Rhoades did assert his right to remain silent. There is no evidence in the record as to what Rhoades was responding to when he shook his head negatively. On the strength of this evidence alone, the trial court declined to infer that the shake of the head indicated a desire to remain silent. That finding is not clearly erroneous, given the lack of evidence to the contrary. Miranda teaches that “[o]nce warnings have been given, the subsequent procedures are clear. If the individual indicates in any manner, at any time, prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473–74, 86 S.Ct. at 1627.

In this case, based on the record before us, Rhoades did not assert his right to remain silent. If he had, Shaw's comment, properly found by the trial court to be “the functional equivalent of interrogation,” would have been improper and the second statement would not have been admissible. The requirement that interrogation must cease comes into play when the accused indicates in any manner that he or she does not desire to converse with the police, or that the presence of an attorney is desired. After rights are read to and acknowledged by the detainee, and until the right to silence or counsel is asserted, the police may initiate questioning. The record indicates that Rhoades was read his rights before the second statement and acknowledged that he understood them. Although there is evidence that Rhoades was heavily influenced by narcotics at the time of the arrest, Officer Shaw testified that while searching his person, he engaged Rhoades in conversation to test his alertness and found that he had sufficient capacity to understand what was going on around him.

In sum, Rhoades had been instructed upon and understood his rights at the time of arrest, and there is insufficient evidence to indicate that he asserted his right to remain silent. For the foregoing reasons we conclude that the second statement made in response to Shaw's “interrogation” is not subject to suppression under Miranda v. Arizona.

VII. WITHHOLDING OF EXCULPATORY EVIDENCE BY PROSECUTION

VIII. JURY INSTRUCTIONS

IX. COMPELLING DEFENSE EXPERT TO PREPARE A WRITTEN REPORT OR TO BE INTERVIEWED BEFORE TESTIFYING

X. VICTIM IMPACT STATEMENTS

This is undoubtedly a victim impact statement of the kind contemplated in Booth v. Maryland, and as such, it was error for the trial court to admit it. The next level of inquiry is to determine if the victim impact statement constitutes harmless error under the State v. Paz, 118 Idaho 542, 798 P.2d 1 (1990), exception. This Court, in Paz, relied on Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988), in holding that victim impact statements included in the presentence report, while error, could, under appropriate circumstances, be harmless error.

The test to apply to determine if the use of such statements was harmless is whether this Court is assured that “it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The only evidence in the record that the district court may have considered the information in the matter of a victim impact statement is one sentence in the Findings of The Court in Considering the Death Penalty: “[a]s a result, a husband is left without a wife, a child without a mother, and a community without the valuable contribution of a conscientious school teacher.” This is a statement of facts recited by the trial court as a result of having heard the evidence at trial. There is no indication that any evidence of the kind proscribed by Booth diverted the trial court from its primary function of considering the defendant being sentenced and not the victim or the victim's family. In reviewing the record in this case, we are convinced beyond a reasonable doubt that the victim impact statement in the presentence investigation report did not influence the trial court in its imposition of sentence. The error was therefore harmless, and the case need not be remanded for sentencing.

XI. WHETHER THE DEATH PENALTY WAS PROPERLY IMPOSED

We hold that this is sufficient to indicate that the trial court did consider alternatives to the death penalty and decided against imposing them after contemplating the unique circumstances of this case. The defendant also asserts that mitigating factors were not adequately considered. The pertinent section of I.C. § 19–2515 provides: (c) Where a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the court finds at least one (1) statutory aggravating circumstance. Where the court finds a statutory aggravating circumstance the court shall sentence the defendant to death unless the court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance found and make imposition of death unjust. The clear language of the statute mandates that if an aggravating circumstance is present, “the court shall sentence the defendant to death unless the court finds that mitigating circumstances ... outweigh the gravity of any aggravating circumstances....”

Here, the trial court outlined the mitigating factors in detail, taking into consideration the defendant's education, social and economic status, vocational skills, drug and alcohol use, criminal record, personal redeeming characteristics, and the fact that he has been a cooperative prisoner since the time of his arrest. The court then went on to find three aggravating factors as listed in I.C. § 19–2515(g): (1) that the murder was “especially heinous, atrocious or cruel, manifesting exceptional depravity,” (2) that it was murder of the first degree committed with the specific intent to cause the death of a human being, and (3) that the defendant “has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.” After weighing the mitigating factors against the aggravating circumstances, the trial court imposed the death penalty. All of this was well within the guidelines of the statute. As for the defendant's claim that the trial court engaged in impermissible speculation and overemphasized aggravating factors, we find no merit in this argument. To be sure, the trial court did employ language that could be construed as passionate or emotional, but we will not presume to dictate the writing style which judges must use in their findings. The trial court carefully followed the provisions of I.C. § 19–2515 in imposing the death penalty. We find no abuse of discretion.

XII. WHETHER THE JURY WAS PROPERLY SELECTED

XIII. FORM OF WEAPONS ENHANCEMENT CHARGES

XIV. CONCLUSION

After independently reviewing the record and transcript describing the character of the defendant, the nature of the crime of which he has been convicted, the circumstances of the crime of which he has been convicted, we hold that there existed an adequate basis for imposing the death penalty. The judgment entered and sentence imposed are affirmed. BAKES, C.J., and McDERMOTT, J. Pro Tem., concur. BISTLINE, J., concurs in the result.

JOHNSON, Justice, concurring specially and dissenting:

Rhoades has cited Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), among the authorities upon which he relies in challenging this instruction. In Cage the Court found that the phrases “grave uncertainty,” “actual substantial doubt,” and “moral certainty” combined together in a reasonable doubt instruction caused the instruction to violate the Due Process Clause. The instruction in this case does not have these same defects. Although “actual doubt” and “conscious” are used in the instruction in this case, they do not, in my view, cause the same problem that the Court saw with the instruction in Cage. I dissent from part X (VICTIM IMPACT STATEMENTS) of the Court's opinion. In applying the harmless error rule in death penalty cases where victim impact statement information was included in the record before the trial court, I would require a statement by the trial court that the information had not been considered.

ON REHEARING McDEVITT, Justice.

This case arises from the murder of Susan Michelbacher. Paul Ezra Rhoades has been convicted in three separate murder cases. For the murders of Susan Michelbacher and Stacy Baldwin, Rhoades was sentenced to death; for the murder of Nolan Haddon, he received an indeterminate life sentence based on a conditional plea.

ARGUMENT ON REHEARING

INSTRUCTION NUMBER 23: THE REASONABLE DOUBT INSTRUCTION

This jury instruction was read to the jury as follows: A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in a case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. Thus a defendant, although accused, begins the trial with a clean slate with no evidence against him. And the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. The effect of this presumption is to place upon the State the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is the state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. A reasonable doubt is an actual doubt based upon the evidence or lack of evidence. It is such doubt as you are conscious of after going over in your minds the entire case and giving consideration to all the testimony. If you then feel uncertain and not fully convinced that the defendant is guilty or if you feel that you would not be acting reasonably should you find him guilty, and if you believe that a reasonable man in any matter of like importance in his own affairs would hesitate to act because of such doubt as you are conscious of having, then that is a reasonable doubt, and the defendant is entitled to the benefit of it. But if, after considering all of the evidence, you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt, and you should render your verdict accordingly.

THE REASONABLE DOUBT JURY INSTRUCTION COMPLIES WITH DUE PROCESS

BISTLINE, Justice, dissenting.

I question, however, ... the Court's carte blanche approval of the California jury instruction.... That instruction has its own problems. As an example, the instruction states that everything relating to human affairs, and depending on ‘moral evidence,’ is open to some possible or imaginary doubt. I have always thought that the use of word ‘moral’ in that part of the instruction was a typographical error which had been blindly perpetuated throughout the years. I was surprised to find the phrase ‘moral evidence’ defined in Black's Law Dictionary (5th ed.), p. 909, as: ‘As opposed to “mathematical” or “demonstrative” evidence, this term denotes that kind of evidence which, without developing an absolute and necessary certainty, generates a high degree of probability or persuasive force. It is founded on analogy or induction, experience of the ordinary course of nature, and the testimony of men.’ We do not instruct the jury on the definition of ‘moral evidence’ and it is well we don't; otherwise the jury might conclude that a reasonable doubt can be raised by ‘moral evidence’ and not by other kinds, i.e., ‘mathematical’ or ‘demonstrative’ evidence. If we are going to adopt the California jury instruction in Idaho, we ought to excise the word ‘moral’ in front of the word ‘evidence.’

The instruction then goes on to advise the jury that there is a reasonable doubt if the evidence ‘leaves the mind of the jurors in that condition that they cannot say they feel an abiding conviction, to a “moral certainty, of the truth of the charge.” ’ There is certainly a question whether the jury is any better informed by equating a lack of reasonable doubt with ‘an abiding conviction, to a moral certainty, of the truth of the charge,’ as the California jury instruction provides, rather than by defining reasonable doubt as ‘the same kind of doubt interposed in the graver transactions of life [which] would cause a reasonable and prudent man to hesitate and pause,’ as the trial court instructed in this case. It is problematic whether a jury would be helped any more by giving one than the other, and it may well be that the words themselves, ‘reasonable doubt,’ have a clearer meaning than the definition set out in either instruction. This no doubt accounts for those cases [cited by the majority], which state that either it is error for a trial judge to attempt to define reasonable doubt, or that it is not error to fail to define the term. As the Wyoming Supreme Court recently observed: ‘[T]he term “reasonable doubt” need not be defined and a trial court would be well-advised to avoid instructions on reasonable doubt. Therefore an instruction purporting to define reasonable doubt should not be given. ‘We again reviewed the matter of giving a reasonable doubt instruction in Bentley v. State, Wyo., 502 P.2d 203, 206. In that case we said the phrase “reasonable doubt” is self explanatory and definitions do not clarify its meaning but rather tend to confuse the jury.’ Cosco v. State, 521 P.2d 1345, 1346 (Wyo.1974). Cotton, 100 Idaho at 579–80, 602 P.2d at 77–78.

The words of Justice Bakes were well chosen then and are still applicable. The California instruction is confusing and, in all likelihood, unnecessary. Here, however, the majority starts from the erroneous assumption that the two paragraph California instruction so clearly informs the jury as to the law that the addition of two more perplexing paragraphs “was not so confusing and argumentative as to mislead the jury.” That is like saying four swift kicks to the head cause no more confusion than just two. In fact, the instruction here furnished to the Rhoades jury is nothing more than a compilation of vague terms one piled upon another. Reasonable doubt, in one part of the instruction, is not “mere possible doubt” or an “imaginary doubt.” Rather it is “an abiding belief, to a moral certainty,” “an actual doubt,” “an actual doubt based upon the evidence or lack of evidence,” “such doubt as you are conscious of after going over in your minds the entire case,” and it is the “uncertain” and “not fully convinced” feeling, and the belief that would cause a reasonable man (but not woman) to hesitate to act. One worry is that ordinarily reasonable persons performing jury duty on seeing such an abundance of “doubt” may well turn into twelve doubting Thomases. Conversely, the ill-conceived attempt to define what constitutes reasonable doubt could cause the jury to actually lower the state's burden of proof. It is impossible to conclude that the above compilation of ambiguous terms served any purpose other than to confuse the jury.

State v. Rhoades, 135 Idaho 299, 17 P.3d 243 (Idaho 2000). (Baldwin PCR)

SCHROEDER, Justice.

Paul Ezra Rhoades appeals the district court's dismissal of his second petition for post-conviction relief. The State has moved to dismiss the appeal pursuant to Idaho Code Section 19-2719. The motion to dismiss is granted.

I. BACKGROUND AND PRIOR PROCEEDINGS

Evidence at trial indicated that Paul Ezra Rhoades (Rhoades) kidnapped twenty-one-year-old Stacy Baldwin from the Mini Barn convenience store in Blackfoot, Idaho, on February 28, 1987. He drove her to a secluded area near the Snake River and shot her multiple times when she resisted his attack and attempted to escape. One of the bullets pierced her lungs, and she died about one hour after he left her in the snow.

Rhoades was arrested in Nevada after he drove his car into the median of a freeway. A pistol that dropped from his car was later identified by a ballistics expert as the murder weapon. Rhoades confessed to Idaho officers, but he subsequently denied any involvement, claiming he was not at the scene of the murder. A jury convicted Rhoades of first degree murder, kidnapping in the first degree, robbery, and the use of a firearm in the commission of murder, robbery and kidnapping.

This Court denied Rhoades' first post-conviction petition for relief in State v. Rhoades, 120 Idaho 795, 820 P.2d 665 (1991). He disputes the convictions for the second time in this post-conviction review proceeding. He alleges that new evidence has come to light since the time of the first post-conviction proceeding which was not known, or could not reasonably have been known at the time the first post-conviction petition was filed. Rhoades makes nine claims: (1) the State withheld exculpatory evidence; (2) new evidence established that statements made by Rhoades were obtained in violation of his Miranda rights; (3) new evidence established that David Holm was acting as a state agent when Rhoades made statements to Holm while both were in the same jail cell; (4) new evidence established “prosecutorial intrusion” of attorney-client privilege and work product; (5) new evidence showed that county financing of capital cases results in arbitrary and capricious sentences; (6) he was deprived of effective assistance of counsel; (7) there was prosecutorial misconduct; (8) he was deprived of the right to present evidence; and (9) there were illegal firearms enhancements. FN1. The claim regarding illegal firearms enhancements was later dropped and formed the basis of a separate action, litigated in State v. Rhoades, 134 Idaho 862, 11 P.3d 481 (2000), rehearing denied October 24, 2000.

The district court denied Rhoades' second post-conviction relief petition, noting that it could dismiss his claims on procedural grounds alone, but that even if the petition were timely Rhoades would not be entitled to relief. Rhoades appealed the district court ruling, and the case is before this Court upon the State's motion to dismiss the appeal.

II. STANDARD OF REVIEW

Post-conviction proceedings are civil in nature. Idaho Criminal Rule 57(b); Pizzuto v. State, 127 Idaho 469, 470, 903 P.2d 58, 59 (1995). Summary dismissal of a petition for post-conviction relief is the procedural equivalent of summary judgment under I.R.C.P. 56. Small v. State, 132 Idaho 327, 330, 971 P.2d 1151, 1154 (Ct.App.1998). On review of a dismissal of a post-conviction relief application without an evidentiary hearing, this Court must determine whether a genuine issue of material fact exists based on the pleadings, depositions and admissions together with any affidavits on file. Small, 132 Idaho at 331, 971 P.2d at 1155. Inferences are liberally construed in favor of the nonmoving party. Id.

Whether evidence is material for purposes of due process analysis is a question of law, over which appellate courts exercise free review. State v. Dopp, 129 Idaho 597, 606, 930 P.2d 1039, 1048 (Ct.App.1996). Whether this Court has jurisdiction to hear a claim is a question of law which can be raised at any time. Pizzuto, 127 Idaho at 471, 903 P.2d at 60. Issues which should have been but were not raised on direct appeal are forfeited, “unless it appears to the court ... that the asserted basis for relief raises a substantial doubt about the reliability of the finding of guilt and could not, in the exercise of due diligence, have been presented earlier.” I.C. § 19-4901(b).

III. RHOADES' CLAIMS WERE NOT BROUGHT WITHIN A REASONABLE AMOUNT OF TIME AFTER THE DISCOVERY OF NEW EVIDENCE AND IN MOST INSTANCES WERE KNOWN OR REASONABLY KNOWABLE WITHIN FORTY-TWO DAYS OF THE FILING OF THE JUDGMENT.

Idaho Code Section 19-2719 provides for post-conviction relief if a petition is filed within forty-two days after entry of judgment. A petition filed after this forty-two day time period will not be considered unless it can be demonstrated that the issues raised “were not known or could not reasonably have been known within the 42-day time frame.” McKinney v. State, 133 Idaho 695, 701, 992 P.2d 144, 150 (1999). Petitions are procedurally-barred when they are not timely brought under I.C. § 19-2719. McKinney, 133 Idaho at 700, 992 P.2d at 149. The district court found that Rhoades' evidentiary claims were time-barred. There are two bases to conclude that this is correct.

A. The Claims Were Not Brought Within a Reasonable Time Following Discovery.

The State argues that I.C. § 19-2719(4), together with § 19-2719(3), bars Rhoades' claims because they were not brought within forty-two days after they were known. There is logic to this position, but it is not necessary to determine in this case whether the forty-two day time limit is applicable. Counsel for Rhoades states, and the record reflects, that none of the claims was brought earlier than six months from the time the claim was known. Some were brought well after that time.

In prior cases the Court has applied a reasonable time standard in determining if a successive petition was timely. In Paz v. State, 123 Idaho 758, 760, 852 P.2d 1355, 1357 (1993), the Court determined that four years was not a reasonable time to bring claims after they were known. “Claims not known or which could not have reasonably been known within 42 days of judgment must be asserted within a reasonable time after they are known or reasonably could have been known.” Paradis v. State, 128 Idaho 223, 227, 912 P.2d 110, 114 (1996). In Dunlap v. State, 131 Idaho 576, 577, 961 P.2d 1179, 1180 (1998), the Court determined that Dunlap did not know and reasonably could not have known that his prior counsel had not filed a petition for post-conviction relief. Consequently, a petition filed within forty-two days after the appointment of new counsel was filed within a reasonable time. The reference to the forty-two day time limit in Dunlap supports the State's position that a successive petition must be filed within forty-two days of the time the claim is known or reasonably knowable. Regardless, that precise question is not necessary to resolve in this case. In McKinney v. State, the Court observed “that the legislature instituted the procedures of I.C. § 19-2719 ‘to accomplish the purpose of eliminating unnecessary delay in carrying out a valid death sentence.’ ” McKinney, 133 Idaho at 705, 992 P.2d at 154. Rhoades has not shown a justifiable reason for the six-month delay in filing. All claims made in Rhoades' successive petition for post-conviction relief are barred for failure to bring them within a reasonable time after they were discovered.

B. The Individual Claims
1. The videotape (withholding of exculpatory evidence by the State) Rhoades claims that the State withheld a video-taped interview of an eyewitness to the kidnapping who described a person quite different from Rhoades. Prior to trial the prosecutor provided counsel for Rhoades a videotape of the crime scene without identifying the fact that there was other information on the tape. There were approximately three minutes of static between the crime scene and an interview with a person who claimed to be an eyewitness to the kidnapping. Counsel for Rhoades did not fast-forward the tape and discover the interview prior to trial. New defense counsel discovered the potentially exculpatory interview in December of 1995 by accident. The second petition for post-conviction relief was not filed until November of 1996, nearly a year later after discovery of the evidence. The claim was not brought within a reasonable time following discovery.

2. Alleged Miranda violations
Rhoades made two inculpatory “I did it” statements after he was apprehended by the police. Rhoades now argues that a newly discovered police report proves that these statements were admitted in violation of Miranda. As to the first admission, the evidence may not be properly characterized as newly discovered evidence because there was evidence at trial that Miranda violations occurred at the time of Rhoades' arrest. Officer Dan Miller testified at trial that he saw Idaho officers Rodriguez and Shaw questioning Rhoades before he made his first “I did it” statement. Rhoades maintains that a police report by Detective Shaw which indicated that a Miranda violation occurred related to the second “I did it” statement was not disclosed until Detective Shaw's deposition was taken March 21, 1996. Subsequently, on May 3, 1996, the deposition of prior defense counsel was taken. The police report dealt with another murder, but there was information concerning the interrogation of Rhoades relevant to the Baldwin killing. This report was reasonably discoverable prior to the filing of the first petition for post-conviction relief. At the trial concerning Baldwin's killing, Detective Shaw was questioned concerning a police report. He commented, “there are more reports than that.” The defense was put on notice to explore further the existence of police reports. Reasonable diligence would have led to the discovery of the information within the time for filing the first petition for post-conviction review. Assuming current defense counsel could not know of the police report until the prior defense counsel was deposed, the report was discoverable May 3, 1996. The second petition for post-conviction review was not filed until November 6, 1996. This claim was not filed within a reasonable time following discovery.

3. Holm's testimony
Rhoades alleges that new evidence demonstrated that David Holm was acting as a jailhouse “snitch” when he testified against Rhoades at trial. Holm's status as a jailhouse informant was well known at trial and was litigated in the first post-conviction proceeding. The Court will not address this issue for a second time when the “new” evidence adds nothing to that which was already known.

4. Prosecutorial intrusion of attorney-client privilege
Ned Stuart, an employee with the state forensic laboratory, replaced the defense ballistics expert when the expert was unable to testify. Stuart sent his test results to the Bingham County Sheriff's Office. The Sheriff's office sent the original to the prosecutor and a copy to the defense. Rhoades claims that this action on the part of Stuart, and the State's subsequent threat to use the test results, effectively denied Rhoades his right to a defense expert. The basis of this claim, the defense expert's affiliation with the State, was known at the time the original post-conviction motion was filed; therefore, it is not a new claim.

5. County financing in capital cases
Rhoades argues that new evidence shows that county financing of capital cases results in arbitrary and capricious death sentences; however, no new evidence exists on this point. In State v. Hairston, 133 Idaho 496, 988 P.2d 1170 (1999), this Court rejected the same argument Rhoades makes here. The Court will not revisit this argument.

6. Buchholz's mental history
Ken Buchholz confessed to the murder of Stacy Baldwin, but the confession was kept from the jury. Rhoades submits that Buchholz's mental history and criminal background should have been disclosed to the defense and that such information first became available to the defense on February 22, 1996. Buchholz's mental history was discoverable prior to trial.

7. Ineffective assistance of counsel
Rhoades delineates numerous shortcomings on the part of his defense counsel at trial, including: arguing the insanity defense, which was not available under the law, failing to affirmatively request that the death penalty not be imposed, sending unsealed copies of status reports to the Bingham County Court file, failing to call an important medical witness and failing to object to a reasonable doubt instruction which said that the presumption of innocence is not designed to protect the guilty. Rhoades' current counsel was appointed on October 30, 1995. Over one year's period of time elapsed before Rhoades' petition alleging ineffective of trial counsel was filed. This claim was not filed within a reasonable time.

8. Prosecutorial misconduct
Rhoades alleges that the prosecutor knowingly misrepresented an important fact to the trial court regarding the types of shell casings that had been found at the scene of the crime. The result of this misrepresentation, according to Rhoades, was that Buchholz's confession was excluded. Rhoades alleges that the prosecutor committed further misconduct in representing to the court that a polygraph test cleared Buchholz of the Baldwin murder, when in fact, the polygraph was administered for the Michelbacher murder and Buchholz did not pass. This claim was filed six months after Rhoades' current counsel discovered the alleged violation. This is not a reasonable time.

9. Defendant's right to present evidence
The trial court ruled that Rhoades would not be allowed to present Buchholz's confession. Rhoades claims that by not allowing him to present the evidence of another individual's confession, the trial court denied him due process. This claim was known at the time Rhoades' first petition for post-conviction relief was filed. Since Rhoades did not bring this claim at the time of the filing of the first post-conviction petition for relief, he has waived the claim pursuant to I.C. § 19-2719. In any event, the claim was not filed within a reasonable time following appointment of new counsel.

CONCLUSION

The appeal from the district court's decision is dismissed.

State v. Rhoades, 148 Idaho 247, 220 P.3d 1066 (Idaho 2009). (Haddon PCR)

Background: Defendant was convicted by jury in the Seventh Judicial District Court, Bonneville County, Larry M. Boyle, J., of capital murder, and he was sentenced to death. Defendant appealed. The Supreme Court, 121 Idaho 63, 822 P.2d 960, affirmed. Defendant filed petition for post-conviction relief. The District Court, Seventh Judicial District, Bonneville County, Jon J. Shindurling, J., summarily dismissed petition. Defendant appealed.

Holdings: The Supreme Court, Horton, J., held that: (1) defendant failed to plead facts adequate to support his claim of prosecutorial misconduct, as would trigger equitable tolling of limitation period of Uniform Post-Conviction Procedure Act, but (2) defendant's arguments were not so wholly without merit as to warrant award of attorney fees. Affirmed.

HORTON, Justice.

Petitioner Paul Ezra Rhoades appeals the district court's summary dismissal of his petition for post-conviction relief. He argues that the district court erred in finding that his claims are time-barred under I.C. § 19-4902. In 1987, Rhoades entered a conditional plea of guilty for the murder and robbery of Nolan Haddon. In 2005, Rhoades petitioned the district court for post-conviction relief alleging prosecutorial misconduct, actual innocence, ineffective assistance of counsel, and seeking to test biological evidence for DNA. The district court found that these claims were not raised in a timely manner and summarily dismissed the petition pursuant to I.C. § 19-4906.

Three main issues are presented on appeal: First, whether the grounds raised by Rhoades allow for equitable tolling of the limitation provided by I.C. § 19-4902; second, for grounds that would entitle him to equitable tolling, whether Rhoades has met his burden of pleading facts that would entitle him to that equitable tolling; and finally, whether this appeal was frivolous and whether, as a result, the state is entitled to an award of attorney fees. We affirm and award costs to the state.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1987, Paul Ezra Rhoades was charged with the rape and murder of Susan Michelbacher as well as the murder and robbery of Nolan Haddon. Rhoades pleaded not guilty to all charges and filed a motion to sever the charges, which was subsequently granted. Rhoades was tried, convicted, and sentenced to death on the charges relating to the Michelbacher rape and murder. The parties subsequently entered into a plea agreement relating to the Haddon murder/robbery wherein Rhoades entered an “ Alford ” FN1 plea, maintaining his innocence in the case but conceding that “a conviction may be had on the charges as presently filed.” Rhoades was sentenced to serve concurrent indeterminate life sentences for the Haddon murder and robbery. FN1. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

The evidence that would have been introduced at a trial for the Haddon murder included the gun used to kill Haddon found in the vicinity of a green car abandoned by Rhoades, statements made by Rhoades at the time of his arrest, and statements allegedly made to a jailhouse informer. State v. Rhoades, 119 Idaho 594, 600-604, 809 P.2d 455, 461-465 (1991). Further evidence would have included witness testimony placing a car matching the description of the car in which Rhoades was found at the scene of the Haddon murder, law enforcement officers' testimony that items found in Rhoades' possession were similar to the items taken at the time of the Haddon robbery, and testimony regarding Rhoades' purchase of bullets matching the caliber of those used in Haddon's murder. The gun is notable in the present case as the same gun was presented as the murder weapon in the case relating to the rape and murder of Susan Michelbacher. Based upon an affidavit of Dr. Greg Hampikian, Rhoades now claims that PGM (phosphoglucomutase enzyme) testing conducted by the FBI prior to the trial exonerates him of the Michelbacher murder and, by virtue of that exoneration, the Haddon murder as well. In 2005, Rhoades filed the present petition for post-conviction relief, alleging prosecutorial misconduct, actual innocence, ineffective assistance of counsel, and requesting DNA testing. These were similar to the 2002 petition and 2005 amendments to the petition for post-conviction relief made in connection with the Michelbacher case. The state moved for summary dismissal of Rhoades' claims on August 24, 2007, claiming that Rhoades' claims were time-barred by I.C. § 19-4902. On November 26, 2007, the district court granted the motion to dismiss. Rhoades appeals that decision.

II. STANDARD OF REVIEW

Post-conviction proceedings are governed by I.C. § 19-4901 et seq. (the Uniform Post-Conviction Procedure Act). A petition for post-conviction relief is a civil proceeding, governed by the Idaho Rules of Civil Procedure. Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). However, “[t]he ‘application must contain much more than a short and plain statement of the claim that would suffice for a complaint under I.R.C.P. 8(a)(1).’ ” State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008) (quoting Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct.App.2002)). Instead, the application must be supported by a statement that “specifically set[s] forth the grounds upon which the application is based.” Payne, 146 Idaho at 561, 199 P.3d at 136 (citing I.C. § 19-4903). “The application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.” Id.

This Court has free review of questions of law. Hopper v. Hopper, 144 Idaho 624, 626, 167 P.3d 761, 763 (2007). On review of a dismissal of a post-conviction relief application without an evidentiary hearing, this Court determines whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file and will liberally construe the facts and reasonable inferences in favor of the non-moving party. Hauschulz v. State, 144 Idaho 834, 838, 172 P.3d 1109, 1113 (2007) (citing Gilpin-Grubb v. State, 138 Idaho 76, 80, 57 P.3d 787, 791 (2002)). However, “while the underlying facts must be regarded as true, the petitioner's conclusions need not be so accepted.” Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985). “[W]here the evidentiary facts are not disputed and the trial court rather than a jury will be the trier of fact, summary judgment is appropriate, despite the possibility of conflicting inferences because the court alone will be responsible for resolving the conflict between those inferences.” State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). These standards apply equally to questions regarding the accrual of actions and the passage of the statute of limitations. Harris v. State, ex rel. Kempthorne, 147 Idaho 401, 405, 210 P.3d 86, 90 (2009).

III. ANALYSIS

1. Rhoades did not plead facts sufficient to trigger equitable tolling and avoid summary dismissal. The Uniform Post-Conviction Procedure Act provides three separate limitations periods. The first, contained in I.C. § 19-4902(a), states that “[a]n application may be filed at any time within one (1) year from the expiration of the time for appeal or from the determination of an appeal or from the determination of a proceeding following an appeal, whichever is later.” The second, addressing only DNA testing, is contained in I.C. § 19-4902(b). It states that a “petition must be filed by July 1, 2002, or within one (1) year after the filing of the judgment of conviction, whichever is later.” I.C. § 19-4902(b). Finally, I.C. § 19-4908 states that a court may grant a supplemental or additional petition where the “court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.” The state, the trial judge and Rhoades all agree that the standards required for I.C. § 19-4902 have not been met. Remittitur in Rhoades' case was issued March 8, 1991. In 1993, the period designated in I.C. § 19-4902, previously a five-year period, was amended to a one-year limitation period. 1993 Idaho Sess. Laws, ch. 265, § 1, p. 898. Dating the one-year period from the July 1, 1993 amendment to I.C. § 19-4902, the petition was untimely under I.C. § 19-4902, as the present motion was filed on July 29, 2005. Esquivel v. State, 128 Idaho 390, 392, 913 P.2d 1160, 1162 (1996). Rhoades does not dispute this but argues that he is entitled to equitable tolling by operation of I.C. §§ 19-4901 and 19-4908.FN2 FN2. Rhoades cites I.C. § 19-4901(b) for the proposition that “a successive postconviction petition is timely if (1) it was not reasonable to expect the petitioner to have known of its underlying facts at the time of his first petition and (2) if the successor petition was filed within a reasonable amount of time of his discovering the underlying facts.” I.C. § 19-4901(b), however, does not address when or whether specific facts may overcome the one-year statute of limitations for post-conviction petitions. Rather, I.C. § 19-4901 merely addresses the relation between issues that might have been raised on direct appeal and issues raised in a petition for post-conviction relief.

In Charboneau v. State, we considered the relationship of I.C § 19-4902 and I.C. § 19-4908. 144 Idaho 900, 174 P.3d 870 (2007). In Charboneau, this Court recognized that rigid application of I.C. § 19-4902 would preclude courts from considering “claims which simply are not known to the defendant within the time limit, yet raise important due process issues.” Id. at 904, 174 P.3d at 874. According to this Court's decision in State v. Rhoades, [p]rocedural due process issues are raised whenever a person risks being deprived of life, liberty, or property interests because of governmental action. The requirement is that there must be some process to ensure that the individual is not arbitrarily deprived of his rights in violation of the state or federal constitutions. This requirement is met when the defendant is provided with notice and an opportunity to be heard. 120 Idaho 795, 806, 820 P.2d 665, 676 (1991). The Court then used the three-part balancing test enunciated by the U.S. Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976), to determine whether due process had been afforded, balancing (1) the interest at stake; (2) the risk of erroneous deprivation of the interest and the probable value of additional or substitute safeguards; and (3) the government's interest. Rhoades, 120 Idaho at 806-07, 820 P.2d at 676-77.

In Charboneau, we noted that, in instances of a Brady violation, FN3 “there may be a tolling of the one year statute of limitations until discovery of the Brady violation.” Charboneau, 144 Idaho at 904, 174 P.3d at 874. The Court applied the same “reasonable time” standard that governs its examination of post-conviction petitions in capital cases. Id. at 905, 174 P.3d at 875. For claims that do not meet the required timeliness standard, a petitioner “shall be deemed to have waived such claims for relief as were known or reasonably should have been known.” I.C. § 19-2719. “In determining what a reasonable time is for filing a successive petition, we will simply consider it on a case-by-case basis, as has been done in capital cases.” Charboneau, 144 Idaho at 905, 174 P.3d at 875. FN3. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The district court, in finding that Rhoades was not entitled to equitable tolling, cited the court of appeals' decision in Chico-Rodriguez v. State for the proposition that “the bar for equitable tolling in post-conviction actions is high.” 141 Idaho 579, 582, 114 P.3d 137, 140 (Ct.App.2005). The Idaho Court of Appeals has recognized instances of equitable tolling “(1) where the petitioner was incarcerated in an out-of-state facility on an in-state conviction without legal representation or access to Idaho legal materials; (2) and where mental disease and/or psychotropic medication renders a petitioner incompetent and prevents petitioner from earlier pursuing challenges to his conviction.” Sayas v. State, 139 Idaho 957, 960, 88 P.3d 776, 779 (Ct.App.2003). This Court has never explicitly addressed when a case would raise an important due process issue. However, the serious due process concerns enunciated in Charboneau encompass cases involving access to courts claims. Martinez v. State, 130 Idaho 530, 535-36, 944 P.2d 127, 132-33 (Ct.App.1997). It would similarly cover claims of incompetency. Chico-Rodriguez, 141 Idaho at 582-83, 114 P.3d at 140-41. We therefore reaffirm the standard expressed in Charboneau in order to determine whether equitable tolling is appropriate. Applying this structure, the first question is whether Rhoades' asserted claims (prosecutorial misconduct, actual innocence, ineffective assistance of counsel, and a request for DNA testing) “raise important due process issues” sufficient to trigger equitable tolling. The second question is whether any claims that would be entitled to equitable tolling have been adequately supported by the facts and claims in the pleadings.

a. Prosecutorial Misconduct

With regard to the allegations of prosecutorial misconduct, Charboneau answers the first question in the affirmative, citing claims of “state misconduct” involved in a Brady violation. Charboneau, 144 Idaho at 904, 174 P.3d at 874. While it must still be pursued in a timely fashion, state misconduct implicates core due process considerations that may trigger equitable tolling. The district court acknowledged this, stating that “there is no doubt but that deliberate deception in a criminal prosecution would likely entitle a petitioner to equitable tolling for I.C. § 19-4902 purposes.” The court then rejected the prosecutorial misconduct argument as unsupported by the facts alleged.

Rhoades identifies four pieces of evidence in support of his claim that prosecutorial misconduct occurred. First, Rhoades refers to the existence of the FBI document recounting the results of PGM testing upon which Dr. Hampikian relied. Second, Rhoades relies on Dr. Hampikian's affidavit stating that the FBI tests excluded Rhoades as a contributor of the semen that was the subject of the FBI's PGM testing. Third, Rhoades cites testimony at the Michelbacher trial by Don Wyckoff, the state's expert witness, that he could not address the results of the FBI tests because he did not do the analysis. Finally, Rhoades refers to statements by the prosecutor in the closing arguments of the Michelbacher trial that Rhoades “ alone of the persons who had access, matches” the semen samples found.

While facts supported by admissible evidence must be accepted, the judge reviewing those facts need not draw inferences drawn from those facts that are not supported by the evidence. Hauschulz v. State, 144 Idaho 834, 838, 172 P.3d 1109, 1113 (2007). Rhoades is correct in asserting that Mr. Wyckoff, the state's expert, would be considered an agent of the prosecution for purposes of Brady disclosures. State v. Avelar, 132 Idaho 775, 781, 979 P.2d 648, 654 (1999) (“The duty of disclosure enunciated in Brady is an obligation of not just the individual prosecutor assigned to the case, but of all the government agents having a significant role in investigating and prosecuting the offense.”) (internal quotations omitted). Rhoades' argument relies on Wyckoff's role as state agent, combined with the apparently obvious import of the PGM testing and the fact that the PGM report had been made available to the state.

Nevertheless, even assuming these facts, Rhoades effectively asked the district court to make, not one, but four inferences in his favor. One must first infer from the mailing of the FBI report to the state investigatory office that Wyckoff received the report.FN4 Second, one must infer that Wyckoff actually reviewed the report. Third, one must further infer that Wyckoff interpreted the report and reached the same conclusion as Rhoades' expert. Finally, in order to show that the prosecutor suborned perjury, one must further infer that Wyckoff shared the exculpatory interpretation of the FBI report with the prosecutor. Although the district court is required to draw inferences in favor of the non-moving party, those inferences must be reasonable. The required series of inferences here simply does not meet the reasonableness standard. Whether by virtue of oversight, misunderstanding the data, or, as the district court suggested, simply a different interpretation, there are a variety of explanations which are equally, if not more plausible than one of deliberate concealment.FN5

FN4. The FBI report was directed to “Ms. Pamela J. Marcum, Senior Criminalist.” FN5. The FBI report was disclosed to Rhoades' attorney who had the assistance of a court-appointed expert. Rhoades' claims of a Brady violation and subornation of perjury are based upon the facially exculpatory value of the report. Rhoades does not explain why the state would suborn perjury when evidence of such exculpatory import had been disclosed to the defense.

Nor does Banks v. Dretke, upon which Rhoades relies, suggest a different result. 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). Banks involved a case in which the prosecution had asserted that it had turned over all material required by Brady but had, in fact, failed to disclose information known to the state. Although Rhoades argues that “concealment and misrepresentation” has occurred here, he acknowledges that “the prosecution did provide defense counsel with a copy of the FBI's PGM test results.” We conclude that the district court did not err in finding that Rhoades failed to plead facts adequate to support his claim of prosecutorial misconduct and dismissing this claim.

b. Actual Innocence

Rhoades argues that Sivak v. State supports his argument that a claim of actual innocence provides a basis for equitable tolling. 134 Idaho 641, 8 P.3d 636 (2000). However, Sivak, unlike Rhoades, was making a claim of actual innocence to support overriding a time-bar and reach the merits of an otherwise-barred constitutional claim. Id. at 644, 8 P.3d at 639 (“[Sivak] asserted that the state denied his due process rights by withholding evidence of an agreement between Leytham and the prosecution.”). We need not and do not decide today whether due process requires a free-standing actual innocence exception to the application of I.C. § 19-4902.

Even if actual innocence provides a basis for equitable tolling, the facts alleged by Rhoades do not establish a prima facie case of actual innocence. Under the standard for “actual innocence” as enunciated by the U.S. Supreme Court in Schlup v. Delo, “the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” 513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed.2d 808, 836 (1995). As the state correctly observes, even if the results of the FBI's PGM tests were accepted as unambiguously exculpating Rhoades of responsibility for the rape and murder of Michelbacher, that does not mean that Rhoades did not murder Haddon. Rhoades alleges facts only related to the Michelbacher case, not the Haddon charges. In light of the facts set forth in Part I of this opinion supra, that link Rhoades to the murder of Mr. Haddon, and given that there is no suggestion that the PGM tests would have been part of the Haddon prosecution, we conclude that Rhoades has failed to establish a prima facie case of actual innocence and this claim was properly dismissed as untimely.

c. Ineffective Assistance of Counsel

We have repeatedly held that ineffective assistance of counsel claims can or should be known after trial. In addressing one of Rhoades' previous appeals, we squarely addressed this issue. “Ineffective assistance of counsel is one of those claims that should be reasonably known immediately upon the completion of the trial and can be raised in a post-conviction petition.” Rhoades, 120 Idaho at 807, 820 P.2d at 677. The facts of the case, being particularly within the knowledge of the defendant should be sufficient to alert a defendant to the presence of ineffective assistance of counsel. In this case, Rhoades had access to the material related to his case, including the PGM testing results. Rhoades has further alleged that he is innocent. Assuming his claim of innocence to be true, even if Rhoades did not know that the PGM testing exculpated him, he would have been on notice that it may have done so. Accordingly, we conclude that the district court properly dismissed this claim as untimely.

d. Requests for DNA Testing under I.C. § 19-4902(b)

Rhoades has not argued that the district court's finding that his claim was brought outside of the July 1, 2002 limit created by I.C. § 19-4902(b) was incorrect. Rather, Rhoades simply argues that “he should be allowed to conduct deoxyribonucleic acid (“DNA”) testing on any and all biological evidence collected by the state in the investigation of the murder which gave rise to the instant case.” The U.S. Supreme Court recently rejected the argument that the due process clause provides a freestanding right to DNA testing. Dist. Att'y's Office for Third Jud. Dist. v. Osborne, 557 U.S. ----, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). “In due process cases involving the deprivation of a liberty interest, this Court has applied the United States Supreme Court's standard for interpreting the due process clause of the United States Constitution, to art. I, § 13 of the Idaho Constitution.” Smith v. Idaho Dep't of Corr., 128 Idaho 768, 771, 918 P.2d 1213, 1216 (1996). Therefore, we conclude that the denial of DNA testing does not implicate a specific due process concern. Accordingly, we affirm the district court's conclusion that Rhoades' claim for DNA testing was time-barred.

2. We will not award the state attorney fees under I.C. § 12-121; however, we award costs to the state under I.A.R. 40.

The state requests an award of costs and attorney fees incurred in connection with this appeal. The request for attorney fees is based upon I.C. § 12-121. “Reasonable attorney's fees will only be awarded to the prevailing party under I.C. § 12-121 when the court is left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably and without foundation.” Balderson v. Balderson, 127 Idaho 48, 54, 896 P.2d 956, 962 (1995) (internal quotation omitted). We conclude that Rhoades' arguments, although unsuccessful, are not so wholly without merit as to warrant an award of fees. As discussed above, the standard for equitable tolling has never been clearly spelled out and its application to many of the issues raised by Rhoades is a matter of first impression for this Court. Idaho Appellate Rule 40 provides that “[c]osts shall be allowed as a matter of course to the prevailing party unless otherwise provided by law or order of the Court.” As a petition for post-conviction relief is a civil matter and because the state is the prevailing party on appeal, we award costs to the state.

IV. CONCLUSION

We affirm the district court's dismissal of Rhoades' petition for post-conviction relief as Rhoades' prosecutorial misconduct claims are unsupported by the facts presented and Rhoades' alternative grounds are time-barred under I.C. § 19-4202(a) and (b). Costs to the state. Chief Justice EISMANN, Justices BURDICK, W. JONES and Justice Pro Tem WALTERS concur.

Rhoades v. Henry, 638 F.3d 1027 (9th Cir. 2011). (Baldwin Habeas)

Background: State prisoner petitioned for federal habeas corpus relief following affirmance of his conviction, 120 Idaho 795, 820 P.2d 665. The United States District Court for the District of Idaho, Edward J. Lodge, J., 2006 WL 1452939, denied evidentiary hearing, and, 2007 WL 1550441, denied petition. Prisoner appealed.

Holdings: On denial of petition for rehearing and rehearing en banc, the Court of Appeals, Rymer, Circuit Judge, held that: (1) exclusion of third-party's confession to crime did not violate prisoner's due process rights; (2) District Court was not required to hold evidentiary hearing prior to deciding that prosecution did not commit Brady violations; (3) admission of prisoner's “I did it” statement did not violate his constitutional rights; (4) jury instructions, when read collectively, properly stated presumption of innocence, burden of proof, and jury's obligation to honor both; (5) neither trial nor appellate counsel provided ineffective assistance; and (6) imposition of death penalty on kidnapping conviction did not violate prisoner's Eighth Amendment rights. Affirmed. Opinion, 596 F.3d 1170, amended and superseded.

RYMER, Circuit Judge:

An Idaho jury found Paul Ezra Rhoades guilty of the 1987 first degree murder, first degree kidnapping, and robbery of Stacy Baldwin.FN1 The trial court sentenced him to death for both the murder and the kidnapping, and to a fixed term of life in prison for robbery. The Idaho Supreme Court upheld his conviction, sentence, and denial of post-conviction relief, State v. Rhoades (Baldwin), 120 Idaho 795, 820 P.2d 665 (1991) ( Rhoades I ), and the federal district court denied his petition for a writ of habeas corpus. Rhoades appeals, and we affirm.

FN1. Rhoades was separately convicted for the shooting deaths of Susan Michelbacher and Nolan Haddon, both of whom were killed with the same gun that killed Baldwin during the same three-week period in February and March of 1987. He was sentenced to death on his convictions for first degree murder, and first degree kidnapping, of Michelbacher, see State v. Rhoades (Michelbacher), 121 Idaho 63, 822 P.2d 960 (1991), and received two indeterminate life sentences for the Haddon murder after entering a conditional guilty plea, see State v. Rhoades (Haddon), 119 Idaho 594, 809 P.2d 455 (1991). Appeals from denial of federal habeas relief in both cases are also before us; we resolve them in separate opinions. Rhoades v. Henry (Michelbacher), 598 F.3d 495 (9th Cir.2010); Rhoades v. Henry (Haddon), 598 F.3d 511 (9th Cir.2010).

Rhoades had been loitering around convenience stores in the Blackfoot and Idaho Falls area, including the Red Mini Barn in Blackfoot. Stacy Baldwin worked at the Red Mini Barn and began her night shift around 9:45 p.m. on February 27, 1987. Some time before 11:00 p.m., Carrie Baier and two other girls rented videos at the Mini Barn from Stephanie Cooper, Baldwin's co-worker. Cooper's shift ended at 11:00 p.m., which left Baldwin alone. When Baier returned around midnight, she noticed a man leave the store, get into a pickup truck (it turned out to be one used by the Rhoades family), and drive recklessly toward her. Baier saw a passenger next to the driver, but neither she nor her friends could identify the driver or the passenger. Baier went into the Mini Barn but could not find Baldwin, though Baldwin's coat was still there and her car was outside. The last recorded transaction at the store was at 12:15 a.m. $249 was missing from the cash register. Rhoades and another male had coffee at Stan's Bar and Restaurant, near the Mini Barn, sometime between 1:30 a.m. and 2:00 a.m. on February 28.

Baldwin's body was found later that morning near some garbage dumpsters on an isolated road leading to an archery range. She had been shot three times. According to a pathologist, Baldwin died from a gunshot wound to the back and chest, but may have lived for an hour or so after the fatal shot was fired. On March 22 or 23, Rhoades's mother reported her green Ford LTD had been stolen. Rhoades was seen driving a similar looking LTD on March 22, and on March 24, truckers saw the LTD parked on a highway median in Northern Nevada. They also saw a person matching Rhoades's description lean out of the car, fumble with a dark brown item, and run off into the sagebrush. A Nevada trooper responding to the scene found a .38 caliber gun on the ground near the open door of the car, and a holster about forty-five feet away. Ballistics testing would show that this weapon had fired the bullets that killed Baldwin.

Meanwhile, Idaho authorities were alerted to a Rhoades connection when the LTD was discovered. They had previously obtained a warrant for Rhoades's arrest for burglary of Lavaunda's Lingerie, and arrived at the 4 Way Casino shortly after Rhoades was arrested. As the Idaho officers—one of whom Rhoades knew from home—approached, Rhoades said: “I did it.” Rhoades was advised of his Miranda rights by an officer from Idaho, Victor Rodriguez, and searched by another Idaho officer, Dennis Shaw. Rhoades had a digital wrist watch in his pocket, which he claimed to have found in a “barrow pit.” It was just like the one Baldwin was wearing the night she was killed.

During the booking process at the Wells Highway Patrol Station, Shaw remarked something to the effect: “If I had arrested you earlier, Stacy Baldwin may be alive today.” Rhoades replied: “I did it.” Shaw then said, “The girl in Blackfoot,” and Rhoades again replied, “I did it.” FN3 FN3. Shaw actually referred to all three murders, along the lines: “If I had arrested you earlier, three people would be alive” followed by “The girl in Blackfoot, and the two people in Idaho Falls.” However, to avoid prejudice, the parties stipulated that at trial Shaw would refer only to Baldwin and “the girl in Blackfoot.” For ease, we collapse the two “I did it” statements at the station into one, and refer to the two collectively as the second “I did it” statement. Forensic analysis would show that footprints found in the snow near Baldwin's body were consistent with the size and pattern of Rhoades's boots, and that Rhoades's hair was consistent with a hair on Baldwin's blouse. Rhoades also admitted to a cellmate that he kidnapped Baldwin, took her to an archery range intending to rape her but was unable to do so because she was hysterical, and shot her twice in the back. Based on this evidence, the jury found Rhoades guilty of murder in the first degree, kidnapping in the first degree, and robbery. The state court held an aggravation and mitigation hearing, after which it sentenced Rhoades to death on the conviction for first degree murder and the conviction for first degree kidnapping. Rhoades filed a direct appeal and sought post-conviction relief, which the trial court denied after holding evidentiary hearings. Once that denial was appealed, the Idaho Supreme Court consolidated both appeals in accord with its procedure for capital cases. It affirmed Rhoades's convictions, death sentences, and denial of post-conviction relief on September 12, 1991. The United States Supreme Court declined to issue a writ of certiorari.

Rhoades filed a Statement of Issues in federal court on April 29, 1993, and a Petition for Writ of Habeas Corpus on November 30, 1993. The Antiterrorism and Effective Death Penalty Act (AEDPA), which became effective April 24, 1996, is not applicable except to procedural requirements for seeking review. Sims v. Brown, 425 F.3d 560, 562 (9th Cir.2005). As one would expect, there were several amendments to the petition and numerous rulings by the district court.FN4 Among decisions pertinent to this appeal, the district court denied Rhoades's request for an evidentiary hearing on claims that the state withheld exculpatory evidence, that Rhoades's Miranda rights were violated, and that appellate counsel rendered ineffective assistance. Ultimately the district court denied all of Rhoades's claims, as well as his motion to alter and amend the Memorandum Decision and Judgment pursuant to Federal Rule of Civil Procedure 59. FN4. While federal proceedings were pending, Rhoades filed two successive post-conviction petitions in state court November 4, 1996, which were denied by the trial court. The Idaho Supreme Court dismissed appeals from both judgments. State v. Rhoades, No. 29180/29212, slip op. (Idaho Dec. 12, 2005). Rhoades has timely appealed those grounds on which he received a certificate of appealability.

III

We review de novo the district court's decision to grant or deny a petition for writ of habeas corpus. Martinez–Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir.1996). We also review de novo the district court's decision to dismiss a habeas petition for procedural default or for failure to exhaust. Vang v. Nevada, 329 F.3d 1069, 1072 (9th Cir.2003). Similarly, “[i]neffective assistance of counsel claims are mixed questions of law and fact which we review de novo.” Beardslee v. Woodford, 358 F.3d 560, 569 (9th Cir.2004).

“To the extent it is necessary to review findings of fact made in the district court, the clearly erroneous standard applies.” Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.2002). This clear error review is “significantly deferential,” and our court “must accept the district court's factual findings absent a ‘definite and firm conviction that a mistake has been committed.’ ” Id. (citation omitted). Further, “[a]lthough less deference to state court factual findings is required under the pre-AEDPA law which governs this case, such factual findings are nonetheless entitled to a presumption of correctness unless they are ‘not fairly supported by the record.’ ” Id. (citations omitted).

“A district court denial of an evidentiary hearing is reviewed for abuse of discretion.” Beardslee, 358 F.3d at 573.

Rhoades argues that exclusion of testimony regarding Keven Buchholz's confessions to the Baldwin murder denied him due process.FN5 Buchholz was arrested at his parents' home on March 14, 1987, after his father called the police to report a fight. At the jail, Buchholz, while quite drunk, told the officer on duty that evening, Larry Christian, that he had shot the girl from the Mini Barn twice in the back. Christian reported the conversation to his supervisor, then returned. Buchholz repeated that he shot the girl from the Mini Barn twice in the back, had shot several times around the body, and had emptied the gun. Rhoades tried, unsuccessfully, to subpoena Buchholz for trial. He then sought to call Christian to testify to what Buchholz told him.

FN5. Rhoades failed to pursue this claim in his first post-conviction petition, therefore the Idaho Supreme Court treated it as waived. Rhoades v. State, 135 Idaho 299, 17 P.3d 243, 247 ( Rhoades II ) (Baldwin) (2000). By the same token, the state failed to assert procedural default in district court. We decline sua sponte to consider this issue.

Rhoades further argues that the court's ruling was erroneous under the Idaho Rules of Evidence. However, evidentiary rulings based on state law cannot form an independent basis for habeas relief. Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Buchholz recanted the confession once sober, explaining that he was with his family the night of the murder. Family members confirmed this. In addition, Buchholz's fingerprints, hair sample, and shoe prints were taken; none matched anything connected to the crime.FN6 The police could not link Buchholz to the murder weapon, and determined that information in his confession could have come from public sources or gossip in the community. FN6. Buchholz also took a polygraph examination, but that test is irrelevant because polygraph results are inadmissible under Idaho law absent a stipulation. State v. Fain, 116 Idaho 82, 774 P.2d 252, 256–57 (1989).

The state moved to exclude Christian's testimony. Rhoades presented an offer of proof indicating that Christian would testify that Buchholz told him he shot the girl twice in the back; shot at her several times; stole a green pickup in Pocatello which he left at Fort Hall; and the gun was either a .38 caliber or a 9mm. The proffer also indicated that shell casings from both sizes were found at the scene. The trial court precluded Christian from testifying because it found that Buchholz's confession lacked sufficient corroboration to be trustworthy, thus Christian's testimony about what Buchholz told him would be hearsay under Rule 804(b)(3) of the Idaho Rules of Evidence. FN7. Under Idaho Rules of Evidence 804(b)(3), an unavailable declarant's statement against interest “tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

Christian and Buchholz both testified at a post-conviction evidentiary hearing. The evidence showed that Buchholz was out of control at his parents' home, his father called the police, and he was arrested for battery and resisting arrest. He was placed in a holding tank, and asked to talk to Christian. Christian described Buchholz as “well out of it, as far as being drunk,” crying, upset, fighting, and “trying to give him a reason to lock him up.” Christian also explained that it was generally known that a green Ford pickup was found near Fort Hall, and the police knew that Stacy had been shot in the back. Buchholz agreed that he was drunk, and had gotten into a fight with his parents. Officer Love (whom he knew) responded to his father's call and took him to jail; Love ran through a list of things they could book him for, to which Buchholz replied “You might as well book me for murder, too.” Buchholz explained that he was under the influence, upset with the officer and his parents, and had made the statement to get attention because he thought they were piling on unfair charges. Buchholz also testified that he was at the hospital when Stacy's body was brought in because his daughter had appendicitis.

The district court concluded that Buchholz's statement lacked “persuasive assurances of trustworthiness” as he was intoxicated when he confessed and recanted when he was sober, his alibi checked out, and there was no other evidence linking him to the crime. See Chambers v. Mississippi, 410 U.S. 284, 300–01, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). We agree. Rhoades relies heavily on Chambers, where a third party confessed on four separate occasions before recanting, and the Court found that a hearsay rule could not be applied to prohibit introduction of those confessions without offending due process. He points out that Buchholz also confessed several times—once to the arresting officer and twice to Christian. The circumstances are different, however, as Buchholz's confessions occurred during a single, continuous tirade. The fact that he said the same thing three times in one outburst does not make his otherwise untrustworthy statement trustworthy. The circumstances surrounding the Buchholz confession are likewise different from those in cases such as Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), where the proffered statement was reliable enough to have been used against Green's codefendant in a related trial; Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), where the Court held that a per se rule against hypnotically-refreshed testimony ran afoul of due process when, as was true there, it had the effect of excluding testimony that was supported by corroborating evidence; Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), where the issue was voluntariness and credibility; Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), where the Court rejected as arbitrary a rule that made admissibility turn on the strength of only the prosecution's evidence; and Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), which involved direct (rather than hearsay) testimony by principals, accomplices or accessories to the crime and where the Court held that the evidence could not be excluded based on a priori categories that presume an entire class of witnesses to be unworthy of belief.FN8 FN8. Rhoades's reliance on our decisions in Thomas v. Hubbard, 273 F.3d 1164, 1177 (9th Cir.2002) (as amended), and United States v. Crosby, 75 F.3d 1343, 1347 (9th Cir.1996), is misplaced for the similar reason that neither involved hearsay testimony.

Rhoades also posits a different result were we to apply the balancing test of Miller v. Stagner, 757 F.2d 988, 994–95 (9th Cir.1985).FN9 Whether or not the test is applicable in the circumstances of this case, applying it would not change the outcome. Of course a confession may have great probative value, but it also may not, and if not—as here—it may be excluded. Holmes, 547 U.S. at 326, 126 S.Ct. 1727. With nothing to back up Buchholz's confession, it was unreliable. The jury would have had no opportunity to evaluate Buchholz's credibility and demeanor; Christian's testimony would have been the only testimony on the issue. Christian's recitation could not realistically have been a major part of Rhoades's defense given the circumstances in which Buchholz's statements were made, his recantation and alibi, and the dearth of independent evidence tying Buchholz to the crime. Further, an evidentiary rule such as Idaho Rule of Evidence 804(b)(3) serves the important role of excluding testimony that lacks significant indicia of reliability. See United States v. Fowlie, 24 F.3d 1059, 1069 (9th Cir.1994) (holding that application of Federal Rule of Evidence 804(b)(3), which is virtually identical to the Idaho Rule, does not violate due process). Exclusion of Christian's testimony advances this purpose. FN9. As restated in Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir.2003) (nonnumerical alteration in original): In weighing the importance of evidence offered by a defendant against the state's interest in exclusion, the court should consider [1] the probative value of the evidence on the central issue; [2] its reliability; [3] whether it is capable of evaluation by the trier of fact; [4] whether it is the sole evidence on the issue or merely cumulative; and [5] whether it constitutes a major part of the attempted defense. A court must also consider [6] the purpose of the [evidentiary] rule; [7] its importance; [8] how well the rule implements its purpose; and [9] how well the purpose applies to the case at hand. The court must give due weight to the substantial state interest in preserving orderly trials, in judicial efficiency, and in excluding unreliable or prejudicial evidence.

Accordingly, we conclude that Rhoades's due process rights were not violated by precluding Christian from testifying about what Buchholz told him. V

It follows that Rhoades cannot prevail on the related argument that his counsel was ineffective for failing to conduct an adequate investigation into Buchholz's confession, or failing to argue on appeal that due process mandated its admission. Simply put, neither would have gone anywhere. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that petitioner must show prejudice as well as deficient performance). Rhoades suggests that counsel could have discovered there were shell casings on the ground consistent with Buchholz's confession, and that details related by Buchholz were accurate but not yet public, for example, that Baldwin had been shot twice in the back. However, whether there were shell casings on the ground, or Buchholz correctly described some elements of the crime, doesn't matter without evidence linking Buchholz to Baldwin, to the scene, or to the murder weapon. Rhoades also suggests that counsel would have found out the lie detector results, but whether Buchholz did (or did not) pass the lie detector test would have made no difference because it wasn't admissible, anyway. And given no due process violation, as we have explained, there is no reason to suppose that state appellate counsel making the same arguments that Rhoades now makes would have been successful in changing the outcome. Rhoades offers no support for his further argument that the district court should have held an evidentiary hearing on the issue. We review denial of an evidentiary hearing for abuse of discretion, Beardslee v. Woodford, 358 F.3d 560, 573 (9th Cir.2004), and see none.

Rhoades asserts three supposed Brady FN10 violations: First, the state's failure to disclose that he invoked his right to silence en route from the 4 Way Casino to the Wells Highway Patrol Station, which he maintains had the effect of making it appear that the second “I did it” statement waived his right. Second, the prosecution's failure to disclose all the police reports regarding Buchholz's confession, which would have shown that he confessed multiple times, thereby making testimony about it admissible. And third, the state's failure to disclose a recorded statement of Loretta Wallace (one of the three girls near the Mini Barn at midnight) whose description of the pickup truck more closely matched the one Buchholz claimed to have driven than the one that Rhoades sometimes drove. He also maintains that the district court should not have denied an evidentiary hearing on the first two issues. FN10. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (imposing duty on the prosecution to disclose material evidence favorable to an accused). Three requirements must be met to prove a Brady violation: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

The Idaho Supreme Court implicitly found that Rhoades impliedly waived his right to silence by choosing to say “I did it” in response to Shaw's comment at the station that the victim would be alive had Rhoades been arrested earlier. Rhoades submits this couldn't have happened if he, and the Idaho courts, had been aware of a report by Detective Shaw reflecting that Rhoades invoked his right to silence on the way to the station. He maintains that the report only came to light in connection with Shaw's deposition taken in 1996. In the report, Shaw states: On the way to the police station I continued to talk with [Rhoades]. He was very uncomfortable as he was so large and the car did not give him much room. I told him I was disappointed in him and he had lied to me about the burglary. I had tried to believe him and give him a chance but he had lied and conned me. I said we need to talk about it now so that you can get it off your chest. He said, “Aw bullshit, I don't want to talk about it.[ ] Get these fuckin cuffs off me.”

At his deposition, Shaw explained that he was talking about the Lavaunda's Lingerie burglary in the car because he wanted to start chronologically and that's where his warrant was. Shaw assumed that when Rhoades said he didn't want to talk about it, it was because Rhoades was cramped. Once inside the station, Shaw removed the handcuffs and proceeded to talk. Rhoades contrasts this account with Shaw's testimony at the July 15, 1987 preliminary hearing, where he said that the only significant thing that happened en route from the casino to the station was that Rhoades, who is a large man, was uncomfortable and complained about being handcuffed in the car. Rhoades also points out that it was several months before the second “I did it” statement was put into any report, and then not by Shaw. From this, Rhoades postulates that Shaw viewed the interrogation in the car and at the station as a single, continuous event, and forgot all of it. FN11. In passing, Rhoades suggests he diligently pursued facts showing that he had invoked his right to silence, a point he does not develop and we accordingly do not address; and he urges us not to ignore the fact that the prosecution failed to mention an en route invocation in the Michelbacher and Haddon cases as well. As the Idaho courts treated these cases separately, so do we. But if we were to move past the record in this case, the prosecutor in fact called Rhoades's counsel's attention to the Shaw report at a discovery conference in the Haddon case. See Rhoades (Haddon), 598 F.3d at 518–19.

The district court found that Rhoades failed to show that his trial counsel, David Parmenter, was unaware of the information in the report. Parmenter testified at his deposition that he believed he had seen the Shaw report and was familiar with some of the information in it, though he later submitted a declaration indicating that he did not recall that the state ever provided the report. Rhoades challenges this finding only on the footing that it should not have been made without an evidentiary hearing, but the district court had discretion to rule on the record as it was given no evidence that counsel did not have information that was in the report—whether or not he had the report itself. See Swan v. Peterson, 6 F.3d 1373, 1384 (9th Cir.1993) (holding that a petitioner is “entitled to an evidentiary hearing only if [he] alleged facts that, if proved, would entitle [him] to relief.”).

Again focusing on Buchholz's confession, Rhoades complains that the prosecutor failed to disclose that Buchholz confessed three times, not just once, and to officers working for different agencies. Blackfoot Chief of Police J.J. Love, who arrested Buchholz, made a report indicating that Buchholz told him he “was the one who killed the girl at the Mini Barn. Why don't you pin it on me. I did it.” Christian, the officer who talked to Buchholz at the jail, filled out a report indicating that Buchholz told him he had fired several shots and hit the girl from the Mini Barn twice in the back with a .38 or a 9mm. Detective Newbold, of the Blackfoot Police Department, to whom Christian told what had happened, prepared a report that mentions Christian's written report and summarizes it in detail. The Newbold report was turned over, though neither the Love nor Christian reports was.

As his trial proffer reveals, Rhoades undisputedly knew that Buchholz confessed to Christian that he shot the girl from the Mini Barn. Counsel conceded as much in his post-conviction testimony. His trial proffer also refers to Christian's “more detailed report,” so he knew about it as well. All Rhoades apparently didn't have at trial was Officer Love's report, but it added no detail not apparent from the Newbold summary or available from Christian. Without question, Rhoades had all the “salient facts regarding the existence of the [evidence] that he claims [was] withheld.” Raley v. Ylst, 470 F.3d 792, 804 (9th Cir.2006). Accordingly, the information was not suppressed.

As we have explained, that Buchholz said more or less the same thing to Love on the way to jail as he said to Christian at the jail, all while quite inebriated, isn't material. The defense was armed with a confession, who confessed, to whom and about what. In addition, the trial court in post-conviction proceedings found that Buchholz was credible in his account of why he confessed and why he recanted, and that Rhoades was not prejudiced by non-disclosure of any material related to the confession. The Idaho Supreme Court likewise did not believe the outcome of trial would have been different had the defense received the other police reports. Both determinations are well-supported in the record. The district court did not abuse its discretion in ruling without an evidentiary hearing. Rhoades fails to suggest why the state post-conviction hearing was inadequate; or why the Idaho Supreme Court's determination that the undisclosed reports were sufficiently summarized in Newbold's report to put counsel on alert, and that the reports were not material, was incorrect.

Rhoades further claims that the state failed to turn over a recorded statement by Loretta Wallace during which, while in and out of hypnosis, she described a man leaving the Mini Barn whose characteristics did not match Rhoades. It was part of a videotape of the “Baldwin Crime Scene” that had a ten minute gap before the Wallace statement. The claim fails because the videotape was, in fact, disclosed. Counsel just didn't find Wallace's statement. Rhoades points to no authority requiring the prosecution to single out a particular segment of a videotape, and we decline to impose one. FN12. See United States v. Mulderig, 120 F.3d 534, 541 (5th Cir.1997) (noting “that ‘there is no authority for the proposition that the government's Brady obligations require it to point the defense to specific documents with[in] a larger mass of material that it has already turned over’ ” (quoting United States v. Mmahat, 106 F.3d 89, 94 (5th Cir.1997))).

Finally, the district court found that, considering the suppressed evidence collectively, there was no prejudice. See Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (instructing courts to determine whether, had evidence been disclosed, there is a reasonable probability of a different outcome by reviewing impact of withheld evidence collectively, rather than item by item). As the court pointed out, evidence at trial showed that the murder weapon was found just outside the LTD that Rhoades was driving and bullets like those used in the murder were inside it. A witness had seen Rhoades with a similar handgun after Baldwin was killed, and Rhoades had bought .38 caliber ammunition like that found in the abandoned car. A pickup he often drove was seen driving away from the Mini Barn when Baldwin disappeared. Footprints around where Baldwin was found were consistent with Rhoades's large-sized boots, as was a hair found on Baldwin's shirt. Rhoades had a watch like Baldwin's in his pocket when he was arrested. He told Shaw “I did it,” and admitted to Holm that he kidnapped Baldwin and tried to rape her, told her to pray, and shot her several times, hitting her twice in the back. In the court's view, nothing about this picture would have changed had the defense received the other reports (or found Buchholz and he had testified), and had information about Wallace been presented: the circumstances that made Buchholz's confession unreliable would have come out; and Wallace's statement, even if admissible, would have been cumulative because a description similar to hers was already before the jury through Detective Newbold and cross-examination of Carrie Baier.

We conclude as well that non-disclosure of the “missing” information about Buchholz and Wallace does not undermine confidence in the outcome of the trial. See Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (reiterating that a reasonable probability of a different result is shown “when the government's evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985))). Information about the “I don't want to talk about it” statement was not suppressed; Rhoades made the statement himself, and failed to show it was unknown to counsel. The strong evidence of guilt would not have been materially altered by Wallace's statement or the Love report. Accordingly, there is no Brady violation in any of the respects claimed.

VII

Rhoades argues that the trial court violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights by admitting his second “I did it” statement, and that the district court abused its discretion in denying him an evidentiary hearing on the issue. Alternatively, he submits that he should prevail on the merits.

The Idaho Supreme Court characterized Shaw's remark about the victim being alive if he had arrested Rhoades earlier as the functional equivalent of interrogation. Nevertheless, it concluded that Rhoades's second “I did it” statement was admissible because Rhoades had been advised of his rights, had indicated that he understood them, and had not invoked his right to silence. Rhoades I (Baldwin), 820 P.2d at 675. (Rhoades's “I don't want to talk about it” statement, made en route to the station, was not before the Idaho courts.) The district court found the supreme court's determination was supported by the record that was before it, presumed this finding to be correct, and found that Rhoades had presented no evidence rebutting the factual finding. The district court further noted that the second “I did it” statement came relatively soon after Rhoades was arrested and Miranda warnings were administered. Additionally, in the district court's view, Rhoades's “I did it” response was not the product of coercive interrogation so much as it was uttered during a brief exchange while booking was in process when Shaw made an offhand comment. Thus, the court concluded, Rhoades waived his Miranda rights by saying “I did it.”

To avoid this conclusion, Rhoades sought to present evidence that was not developed in state court: his “I don't want to talk about it statement.” The district court found that Rhoades had been given full and fair opportunities to develop facts having to do with this statement in state court, and had not shown cause and prejudice for failing to do so. In this it did not err, for reasons we have explained: Rhoades made the statement himself, therefore “possessed” it, and did not show that his counsel was unaware of it. Regardless, the district court concluded that, even if the new evidence were considered, Rhoades would still not be entitled to relief. The court reasoned that the discussion in the car involved an unrelated burglary, not the murder of Stacy Baldwin, and when Rhoades said he “didn't want to talk about it, get these handcuffs off” it was in the context of complaining about the cramped conditions in the car. At most, in the district court's view, this amounted to an ambiguous or equivocal statement regarding Rhoades's right to silence. As such, the court held, Rhoades's statement was analogous to the ambiguous reference to assistance of counsel that the Supreme Court held in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), was insufficient to invoke that particular right or to shut down police questioning. Id. at 458., 114 S.Ct. 2350

Rhoades maintains that once the district court assumed that the record had been expanded to include the “I don't want to talk about it” statement, it should have proceeded to determine whether an evidentiary hearing was required under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).FN13 Had it done so, Rhoades contends that he would have met three of the Townsend factors—(4), (5), and (6)—and the court would have been able to make credibility determinations as well as develop additional facts. However, as the district court found and we have discussed, evidence of the “I don't want to talk about it” statement is not newly discovered as Rhoades made the statement himself and his counsel was aware of information in the Shaw report. This undercuts each of the factors upon which Rhoades relies. The evidence could reasonably have been presented to the state trier of fact. Id. at 317, 83 S.Ct. 745. Although Rhoades argues that he tried to obtain all of his statements but the state withheld his en route invocation of the right to silence, evidence adduced in post-conviction proceedings supports a contrary conclusion. Keeney, 504 U.S. at 8–11, 112 S.Ct. 1715 (holding that cause must be shown). Finally, Rhoades does not suggest any respect in which the state trier of fact deprived him of a full and fair hearing. Accordingly, Rhoades was not entitled to an evidentiary hearing under Townsend.

FN13. An evidentiary hearing in federal habeas proceedings is required (1) where the merits of a factual dispute were not resolved in state hearings; (2) the state factual determination was not fairly supported by the record; (3) the state's fact-finding procedure was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) material facts were not adequately developed at the state court hearing, for which there is no cause or prejudice; or (6) for any reason it appears that the state trier of fact did not afford the applicant a full and fair hearing on the facts. Townsend, 372 U.S. at 312–13, 83 S.Ct. 745; Keeney v. Tamayo–Reyes, 504 U.S. 1, 8–11, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (modifying Townsend 's fifth factor).

Even if the district court's ruling on the merits were not premature, as Rhoades maintains it was, he takes issue with the court's analysis. He argues that clear and convincing evidence rebutted the presumption of correctness accorded to the Idaho Supreme Court's determination that he understood what was going on around him. We disagree. While Idaho officers present at Rhoades's arrest testified that he was high, appeared to be under the influence of drugs, and was impaired at that time, Shaw also testified that Rhoades knew to the dollar how much money he had. This supports the supreme court's finding.

Further, Rhoades faults the district court for dividing Shaw's interrogation into distinct parts, treating the burglary separately from the murder. He suggests that instead, the references to burglary and murder were connected by the sheer number of police officers who showed up, which could indicate that more was afoot than just an ordinary burglary, and by Shaw's comment at the station, which linked the two. In the same vein, Rhoades suggests that it would be fair to assume he knew the subject of Shaw's questioning en route to the station was really homicide so his invocation of the right to silence applied to both. No basis appears in the record to suppose this, however. Shaw was executing an arrest warrant for burglary; he referred in the car only to a burglary about which he and Rhoades had talked in the past, not to murder; and his comment at the station introduced the murder, a different topic, for the first time.

Finally, even if the conversation in the car were limited to the burglary, Rhoades contests the district court's conclusion that his Miranda rights were “scrupulously honored” under Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), because Shaw never cut off questioning. See id. at 104, 96 S.Ct. 321. We disagree. Mosley did not establish a rule of either perpetual duration or of global reach. As the Court explained, the person being questioned “can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.” Id. Thus, a person in custody “may waive his right to remain silent selectively, waiving it with regard to some, but fewer than all, topics of discussion.” United States v. Garcia–Cruz, 978 F.2d 537, 541–42 (9th Cir.1992) (rejecting petitioner's argument that when he said “I do dictate the gang. And, and, and, and I'm not, that's all I can say,” he invoked his right to silence, construing it instead as a selective revocation of a prior waiver). Rhoades's statement in context was at best ambiguous, indicating that he did not want to talk about the burglary and wanted the handcuffs off. Shaw stopped asking Rhoades about the burglary while Rhoades was handcuffed and cramped in the car. The “I did it” statement came after the handcuffs were removed and while Rhoades was being booked at the station, in response to a different point about the murder. In these circumstances no Mosley error occurred. We conclude that admitting the second “I did it” statement was not constitutional error.

VIII

Rhoades contends that the trial court gave three instructions—Nos. 16, 17, and 27—that are constitutionally infirm because they had the effect of lowering the state's burden of proving every element of the offense beyond a reasonable doubt. If so, there would be Winship and Cage error, and the Due Process Clause of the Fourteenth Amendment would be offended. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Cage v. Louisiana, 498 U.S. 39, 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990).

We must decide whether “there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Morris v. Woodford, 273 F.3d 826, 833 (9th Cir.2001). The question is not whether the jury could have done so, but whether there is a reasonable likelihood it did. Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). And we are not to engage in a “technical parsing” of the language; instead, we should think of the instructions as the jury would—“with a commonsense understanding of the instructions in the light of all that has taken place at trial.” Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (internal quotations omitted).

Instruction 16 FN14 uses two phrases—“moral evidence” and “moral certainty”—which to Rhoades both diminishes the importance of the reasonable doubt standard and offends Cage. In Cage, the Court addressed an instruction that defined reasonable doubt in part as “It must be such doubt as would give rise to a grave uncertainty, ...” and “[A reasonable doubt] is an actual substantial doubt.” The instruction then stated: “What is required is not an absolute or mathematical certainty, but a moral certainty.” The Court held that the words “substantial” and “grave” connote a higher degree of doubt than required under the reasonable doubt standard and that, when considered with a reference to “moral certainty” rather than evidentiary certainty, could allow a finding of guilt below that required by the due process clause. FN15 After Cage, however, the Court in Victor directly addressed, and upheld, the constitutionality of a reasonable doubt instruction that had both phrases and was virtually identical to Instruction 16. Victor, 511 U.S. at 16–17, 114 S.Ct. 1239. We also considered an instruction identical to the one given here (thus also to the instruction given in Victor ) in another Idaho capital case, Leavitt v. Arave, 383 F.3d 809 (9th Cir.2004), and found nothing constitutionally problematic. Id. at 822.

FN14. Instruction 16 stated: A defendant in a criminal action is presumed to be innocent until the contrary is proved and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. This presumption places upon the State the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows. It is not a mere possible doubt because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all of the evidence leaves the minds of the jurors in that condition that they cannot say they have an abiding conviction to a moral certainty of the truth of the charge.

FN15. The Court subsequently clarified that the proper inquiry is not whether the instruction “could have” been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it. See Victor, 511 U.S. at 6, 114 S.Ct. 1239. As in Victor, Instruction 16 was accompanied by instructions that admonished jurors they could only base a decision on evidence presented in the case, and that they must have an “abiding conviction” of the truth of the charge. As the Court explained in Victor, this correctly states the burden of proof without reference to moral certainty. 511 U.S. at 14–15, 114 S.Ct. 1239. Rhoades suggests that the jury could have taken the “moral certainty” language to refer to the ethics or morality of the charged offense, but we do not believe that, reading the instructions as a whole, it is reasonably likely the jury did understand the instruction this way. Accordingly, we conclude that Instruction 16, in light of the remaining instructions, passes constitutional muster.

Instruction 17 indicates that the burden of proof is not intended to aid anyone who is in fact guilty to escape.FN16 In Rhoades's view, this essentially guts the presumption of innocence and requirement of proof beyond a reasonable doubt, allowing jurors who did not believe he was legally guilty—that is, guilty beyond a reasonable doubt—to vote to convict because they may have thought he was actually guilty. The state counters that Rhoades's challenge is Teague-barred because the Supreme Court has never addressed an instruction such as Instruction 17, nor is there a consensus among other courts that any such instruction is unconstitutional. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

FN16. Instruction 17 stated: The rule of law which clothes every person accused of a crime with the presumption of innocence and imposes upon the state the burden of proving his guilt beyond a reasonable doubt is not intended to aid anyone who is in fact guilty to escape but is a humane provision of the law intended so far as human agencies can to guard against the danger of an innocent person being unjustly punished.

We start with Teague. See Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (holding that if the state argues that the petitioner seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits). Teague generally precludes retroactive application of a new rule on collateral review. FN17 “[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060 (citations omitted). The state relies on Leavitt, where we examined an instruction identical to Instruction 17 and concluded that a decision invaliding the instruction for Cage error would be barred by Teague because Cage, which did announce a new rule, came down after Leavitt's conviction was final. The state recognizes that Rhoades's conviction became final after the decision in Cage was rendered, but argues that the same principle nevertheless applies because there was still no consensus that the instruction was constitutionally erroneous. We think otherwise, for it would run afoul of Cage if it were reasonably likely that the jury interpreted the instructions to allow a verdict on a standard less than required by the due process clause. Therefore, the rule would not be retroactively applied.

FN17. There are two exceptions, one for new rules that place conduct beyond the power of the government to proscribe, the other for watershed rules of criminal procedure. Neither is implicated here.

As we explained in Leavitt, the instruction itself is disfavored. See 383 F.3d at 819–21. We disapproved it on direct appeal in Reynolds v. United States, 238 F.2d 460, 463 (9th Cir.1956), though not on constitutional grounds, as have other courts. See Leavitt, 383 F.3d at 819–21 (discussing cases); see also Shaw v. United States, 244 F.2d 930, 938 (9th Cir.1957) (disapproving instruction but holding that we are not bound to reverse in every case where it is given). And we disapprove it again now. The vice in such an instruction is that a jury could believe it doesn't need to apply the presumption of innocence or hold the government to its burden of proving the defendant's guilt beyond a reasonable doubt if it thinks the defendant did it. However, this does not answer the question before us, which is whether it is reasonably likely that Instruction 17, in the context of the instructions overall, actually caused the jury to misapply the presumption of innocence or the state's burden of proof. We conclude that it did not.

The trial court gave other instructions that properly defined the presumption of innocence, the burden of proof, and the jury's obligation to honor both. For example, the jury was told, more than once, that: Rhoades was presumed to be innocent unless and until he was proven guilty beyond a reasonable doubt; the state had the burden to prove every material allegation for each crime charged beyond a reasonable doubt, and the jury must be satisfied beyond a reasonable doubt that Rhoades is guilty of each offense; and its decision must be based solely on the evidence presented in court, not on any other consideration. We conclude that read together, the instructions overall resolved any ambiguity in Instruction 17, thereby leaving no reasonable probability the jury did not understand they must apply the presumption of innocence and the reasonable doubt standard to Rhoades's case. FN18. The Second Circuit reached a similar conclusion in DelValle v. Armstrong, 306 F.3d 1197 (2d Cir.2002), where a petitioner challenged a similar instruction and “[t]he trial court repeatedly emphasized throughout its jury instructions that appellant was entitled to a presumption of innocence and that the state bore the burden of proving each element of the crime beyond a reasonable doubt.” Id. at 1201.

Rhoades asserts that Instruction 27 FN19 implicates Winship, but fails to develop any argument why it does. It doesn't, as we held in Leavitt, 383 F.3d at 822 (explaining that “the prosecution need not prove every fact in the case beyond a reasonable doubt so long as it proves every element beyond a reasonable doubt”).

FN19. Instruction 27 stated: It is not necessary that all the facts and circumstances surrounding the testimony and evidence that is given on behalf of the State shall be established beyond a reasonable doubt. All that is necessary is that all the facts and circumstances in evidence, together, shall establish the defendant's guilt beyond a reasonable doubt.

Rhoades asserts that trial counsel was ineffective in allowing a ballistics expert to disclose his reports to the prosecution. The defense first retained Richard Fox, who would have testified about the unreliability of ballistics evidence generally but was equivocal on whether the bullet from Baldwin's body matched the gun linked to Rhoades. Parmenter then consulted Ned Stuart to do a second comparison. Stuart concluded the bullet was fired from the gun associated with Rhoades, and sent his findings to Parmenter and to the prosecution. After the prosecution's expert testified at trial, the prosecutor indicated that he would present Stuart's findings in rebuttal if Fox were called. Parmenter did not call Fox. The district court found that Rhoades could not establish prejudice because Fox's testimony would not have provided anything more than incremental assistance to the defense and much of the information that would have been presented through Fox was in evidence anyway. We agree. Parmenter admitted to the trial court that Fox's testimony would not have contradicted the government expert's. Parmenter also testified at his deposition that Fox's theories were out of the mainstream and likely to be unhelpful. And counsel's cross-examination of the prosecution's expert brought out the weaknesses in ballistics testing as Fox's testimony would have done, so the same ground was covered. Rhoades's corresponding claim that he should have been given an evidentiary hearing is unsupported by argument. We will not find an abuse of discretion in these circumstances.

Rhoades claims that counsel was ineffective in failing to investigate, develop, and present mental state issues.FN20 Although Rhoades asserts that Parmenter was ineffective in handling mental state issues at trial as well as at sentencing, he develops no argument with respect to the guilt phase. Accordingly, we take it that Rhoades means to argue that at no time during the proceeding did counsel perform adequately with respect to mental health issues pertinent to sentencing. Otherwise, we deem any guilt-phase claim to be abandoned. See Jones v. Wood, 207 F.3d 557, 562 n. 2 (9th Cir.2000). Relatedly, we must consider whether the district court abused its discretion in denying an evidentiary hearing on this claim.

FN20. Having previously dismissed Rhoades's claims of ineffective assistance of trial counsel for procedural default, the court reversed course in light of our decision in Hoffman v. Arave, 236 F.3d 523 (9th Cir.2001), holding that Idaho's forty-two day limit for seeking post-conviction relief during which no new counsel was appointed frustrated the right to raise claims of ineffective assistance in state court. Id. at 530–36. It allowed Rhoades to develop the factual basis of his claim, and to file a proffer in support. Having considered the proffer, the court found no evidentiary hearing required and denied relief on the merits.

Parmenter's deposition was taken in May 1996 in the federal habeas proceedings. It shows that before trial, Parmenter spoke with a psychiatrist retained by Rhoades's attorneys in the Michelbacher and Haddon cases, and found out the results of this doctor's testing did not support an insanity plea. Based on this, his own knowledge of Rhoades, and his experience working with people at a mental hospital, Parmenter did not pursue further psychological testing. In preparation for sentencing, he talked to a lot of family members, several acquaintances, and to Rhoades's former employer. He spent twenty to twenty-five hours on it. Parmenter submitted a presentence report prepared by Daryl Gardner of Idaho Protective Specialists that included a statement from Rhoades professing his innocence; Rhoades's explanation for some prior arrests; and a brief description of his family, education, and relationships. In general, it highlighted Rhoades's positive characteristics, in particular with females. It also addressed Rhoades's childhood polio, how he was discriminated against due to his family's reputation, and his drug and alcohol use.

The state submitted a presentence report as well. It outlined Rhoades's criminal record, family information, interests and activities, education, and employment. Like Rhoades's, the state's report noted that he had polio as a child, that he sometimes had to fight just because his name was Rhoades, that he was not aggressive toward people or animals, that he often babysat his nieces and nephews, and that he was a skilled sheetrocker. Unlike Rhoades's report, the state's noted that Rhoades had applied to the Army and Marine Corps but had been turned down due to polio. In addition, it included a section on Rhoades's health, reciting that Rhoades denied having any mental or emotional problems, has a balance problem as a result of his polio, and had used (and abused) drugs of all kinds for nineteen years. Finally, the state's report indicated that collateral contacts and family members described Rhoades's youth and early adulthood as “comparatively normal.”

At the sentencing hearing, the state called no witnesses and Parmenter called twelve (Rhoades's mother, father, two sisters, two paternal aunts, and two paternal uncles; two friends; and two jail officials). Some noted Rhoades's childhood polio and foot surgeries, and how he was left poorly coordinated. Four mentioned his drinking, though they also indicated he was a less troublesome drunk than other members of his family. Several witnesses discussed how Rhoades was a good worker, and the jailors testified that he was well-behaved.

Parmenter's closing argument reiterated Rhoades's redeeming qualities and good character traits, noted that he hasn't had the easiest life, and expressed his own view that it was relatively tough growing up as a Rhoades. The state emphasized the circumstances of Baldwin's kidnapping and murder, and Rhoades's recent murder and kidnapping convictions. Under Idaho law at the time of Rhoades's sentencing, when a person is convicted of first degree murder the judge determines whether at least one of ten statutory aggravating circumstances has been established beyond a reasonable doubt. See Idaho Code § 18–4004 (1988); id. § 19–2515. If at least one circumstance is found, the court “shall sentence the defendant to death unless the court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance found and make imposition of death unjust.” Id. § 19–2515(c). The same mitigation inquiry is made in the case of first degree kidnapping if the judge finds, beyond a reasonable doubt, at least one of five statutory aggravating circumstances. See id. §§ 18–4504, 4505.

The trial judge found five aggravating circumstances on the murder conviction beyond a reasonable doubt: (1) Rhoades was previously convicted by jury of the kidnapping and first degree murder of Susan Michelbacher, and pled guilty to the second degree murder of Nolan Haddon. Id. § 19–2515(g)(1). (2) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity, in that Rhoades cased the convenience store where Baldwin worked, snatched her from her place of employment, drove her to a secluded spot, attempted to attack her, and shot at her several times, finally hitting her as she was on her knees with her back towards him trying to escape. Id. § 19–2515(g)(5). (3) Rhoades exhibited utter disregard for human life; he shot at the victim several times, finally striking her in the back, and also left Baldwin alive to die in the cold one to one and a half hours later. Id. § 19–2515(g)(6). (4) Rhoades was guilty of murder in the first degree in perpetration or attempt to perpetrate rape, and/or robbery and/or kidnapping, planned to do these things, and in addition, used a firearm. Id. § 19–2515(g)(7). (5) Rhoades has exhibited a propensity to commit murder which will constitute a continuing threat to society; the Baldwin case is one of three similar type killings in which he had his victims subdued at gunpoint, and had no reason to be emotionally involved. Id. § 19–2515(g)(8).

With respect to the kidnapping conviction, the court found three aggravating circumstances beyond a reasonable doubt: (1) Baldwin would never willingly allow anyone to molest her or take her any place against her will; taking her to a secluded place, and the subsequent attack and shooting, which caused her to lay wounded for over an hour before she died, constitutes torture and grievous physical injury. Idaho Code § 18–4505(6)(a). (2) Rhoades knowingly created a great risk of death to Baldwin. Id. § 18–4505(6)(b). (3) Rhoades did not know the victim; considering her sensibilities, the abduction was especially heinous, atrocious and cruel, and manifested exceptional depravity. Id. § 18–4505(6)(d). The trial judge acknowledged mitigating circumstances including age, background, gentleness, and drug use, as well as the others that were argued, and found the historical facts in accord with the presentence reports. The court observed (among other things) that, although his family and friends say Rhoades is easy going and gentle, he did intend to rob, kidnap, and kill Baldwin and his gentleness did not carry over to the persons he abducted and later killed. It concluded that the mitigating circumstances “do not outweigh the gravity of the statutory aggravating circumstances.” Responding to Rhoades's post-conviction argument that the court had collectively weighed the mitigating circumstances against all aggravating circumstances, the trial judge clarified that he weighed the mitigating circumstances collectively against each aggravating circumstance. Thus, the fact that Rhoades was previously convicted of another murder outweighed the mitigating circumstances.

In addition to taking Parmenter's deposition in the federal habeas proceeding, Rhoades submitted a 1000–page proffer that included declarations from Craig Beaver, Ph.D., a neuropsychologist, Pablo Stewart, M.D., a psychiatrist and neurologist, two police officers, members of Rhoades's family and friends; medical records for Rhoades and his family; criminal records for his father and other family members; his elementary school transcript; and a family tree depicting drug and alcohol abuse, suicide, intelligence, mental health, and criminal convictions. Dr. Beaver's declaration, which synthesized the other declarations as well as the records in Rhoades's proffer, indicates that Rhoades's father was intellectually deficient, physically abused, and suicidal before marrying his mother; there was extensive alcoholism and drug addiction in Rhoades's immediate and extended family; reportedly Rhoades's parents beat up at least some of their children and there was physical and emotional abuse between his father and mother; Rhoades's sister was sexually abused by cousins and an uncle, and there were reports of “unhealthy sexual behaviors” among Rhoades's sisters and extended family; one of Rhoades's sisters told another sister that she had been sexually active with Rhoades for years, and Rhoades entered into a sexual relationship with his aunt after his uncle committed suicide; FN21 and his family had an extensive criminal history. Beaver further stated that “[t]he alcoholism and suicides seen in the past generations of [Rhoades's] family very likely play a genetic role in the emotional and mental health of [Rhoades] and his siblings.” His report concluded that Rhoades's family context deprived him of normal development; his own medical problems further limited his potential as a human being; it was not surprising that he had chemical dependency issues and knew little about normal sexual and interpersonal relationships; his drug addiction was overdetermined; he was genetically loaded for substance abuse; his chronic use of methamphetamine “may well have damaged his brain in areas critical to impulse control and the ability to think clearly in high pressured situations”; and “further neurophysychological testing has always been necessary to fully and adequately assess Paul Rhoades.”

FN21. No factual allegations with respect to either incestuous relationship in which Rhoades participated, one with his sister (as recently as a few days before his Nevada arrest) and another with an aunt after his uncle committed suicide, are made in the Third Amended Petition. We note that Rhoades had asked for a similar allegation in his petition in the Michelbacher case to be deleted. In any event, it is unlikely that this would have helped his mitigation case. See Idaho Code § 18–6602 (1988) (defining incest and providing punishment for up to ten years imprisonment).

Based on Beaver's declaration and other items in the proffer, Dr. Stewart provided a “working assessment regarding psychiatric findings.” He wrote that Rhoades was at significant risk of developing a substance abuse disorder from an early age; Rhoades inherited the diseases of alcoholism and drug abuse; he was born into a family that suffered from major mental illness and neuropsychological impairment; multiple members of Rhoades's family have been institutionalized, have been determined to have sub-average intelligence, and have committed suicide—which puts Rhoades “at substantial risk of developing his own mental health problems, including mood disorders, cognitive dysfunction, substance abuse, and suicidality”; Rhoades “may have been born with some mental deficiencies”; he was placed in special education classes in school; Rhoades's family is overwhelmingly positive for mental illness, which “places him at severe risk for developing his own mental health conditions”; and Rhoades's history, including polio, is “extremely suggestive of his suffering from post Traumatic Stress Disorder that had a childhood onset” even though the requirements of the DS–IV are not satisfied in all aspects. Stewart's “working assessment” listed diagnoses of Posttraumatic Stress Disorder, Cognitive Disorder NOS, Substance Induced Mood Disorder, and Substance Induced Psychotic Disorder, without further elaboration.

Rhoades faults Parmenter for painting him as a fully aware and alert person in control of his faculties who chose to do what he was accused of doing. In Rhoades's view, this was the result of counsel's failure to conduct or complete an investigation, whereas a proper investigation would have uncovered mitigating evidence about his growing up in a family context of physical and emotional violence, alcohol, drugs, and sexual abnormality of the sort exemplified in the factual proffer that he made to the district court. The district court concluded that even if the factual allegations in the proffer were true, Rhoades failed to establish a Sixth Amendment claim under Strickland. While the court believed that Rhoades had alleged sufficient facts to show at least a colorable claim that counsel's investigation fell below an objective standard of reasonableness for a capital case in the late 1980s, it held there was no reasonable probability that had counsel conducted the type of mitigation investigation Rhoades believes he should, the outcome of the sentencing hearing would have been different. In the court's opinion, the aggravating circumstances were too strong, and the new mitigating evidence added too little, to create a reasonable probability of a different outcome.

“To prevail on this claim, [Rhoades] must meet both the deficient performance and prejudice prongs of Strickland.” Wong v. Belmontes, –––U.S. ––––, 130 S.Ct. 383, 384, 175 L.Ed.2d 328 (2009) (per curiam). Accordingly, if Rhoades cannot meet “the highly demanding and heavy burden of establishing actual prejudice,” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.2005) (internal quotation marks and brackets omitted), it is unnecessary to determine whether Parmenter's performance was deficient, see Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice that course should be followed.”). We follow this course.

To demonstrate actual prejudice under Strickland, a “ ‘defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “To assess that probability, we consider the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—and reweigh it against the evidence in aggravation.” Porter v. McCollum, ––– U.S. ––––, 130 S.Ct. 447, 453–54, 175 L.Ed.2d 398 (2009) (per curiam) (internal quotation marks and brackets omitted). Finally, “[i]n evaluating prejudice,” Rhoades's “ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government's case.” Rios v. Rocha, 299 F.3d 796, 808–09 (9th Cir.2002) (internal quotation marks omitted).

We agree with the district court's analysis. The aggravating circumstances that include two other murders are extremely strong. While the new evidence shows a more complete picture of Rhoades's immediate and extended family and their abusive, often criminal, and alcoholic lives, even so, as the court found, there is no persuasive evidence that Rhoades himself was abused as a child, abandoned, placed in the state's custody, or otherwise institutionalized. Also as the court found, despite the passage of twenty years, the expert declarations do not conclusively fill in the blanks about Rhoades's mental or emotional state.

Beaver opined only that alcoholism and suicides in Rhoades's family “very likely” play a genetic role in his mental health; that he “was genetically loaded for substance abuse”; and that his chronic use of methamphetamine “may well” have damaged his brain. Stewart's working assessment is similarly indeterminate. For example, he stated that Rhoades's family history places him “at substantial risk” of developing his own mental health problems, and that he “may” have been born with some mental deficiencies. The mitigating value of Stewart's most concrete assessment, that Rhoades “does suffer” from Post-traumatic Stress Disorder (PTSD), is lessened because his diagnosis admittedly does not satisfy the requirements of DSM–IV for this condition. Cf. Comer v. Schriro, 463 F.3d 934, 944 (9th Cir.2006) (concluding the district court did not clearly err in determining the petitioner did not have PTSD in light of an expert's inability to apply the DSM–IV criteria accurately). There also is no suggestion that Rhoades kidnapped, tried to rape, or murdered Baldwin while in any kind of a PTSD-induced disassociative state.

Speculation about potential brain dysfunctions or disorders “is not sufficient to establish prejudice.” Bible v. Ryan, 571 F.3d 860, 871 (9th Cir.2009); see also Raley, 470 F.3d at 802–03 (finding no prejudice in part because none of the petitioner's experts “conclusively opined that [he] had a mental defect”); Smith v. Mitchell, 348 F.3d 177, 201–02 (6th Cir.2003) (finding no prejudice, and that new mitigating evidence of organic brain damage was “not compelling” as the petitioner's expert concluded there was only a “ likelihood of neurological impairment”). In the main, both the Beaver and Stewart reports are speculative. They talk in terms of conditions that Rhoades “likely” has or “may” have. By contrast, expert opinions in cases where prejudice has been found identified injuries or conditions that the petitioner actually has. FN22 Rhoades is certainly correct that a formal diagnosis is not necessary before an opinion may be considered, but this is not an issue in this case because the district court considered both reports, as do we. There is a difference between rejecting a proffered opinion, and concluding that it is not weighty enough to change the outcome. Rhoades is also correct that the quantity and quality of mitigation information in his experts' reports exceeds what was uncovered and presented by trial counsel. But this, too, misses the mark. As the Supreme Court recently reminded us, the determinative comparison is between “the totality of the available mitigation” and “the evidence in aggravation.” Porter, 130 S.Ct. at 453–54.

FN22. See, e.g., Rompilla v. Beard, 545 U.S. 374, 392, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (post-conviction experts found petitioner “ ‘suffers from organic brain damage, an extreme mental disturbance significantly impairing several of his cognitive functions' ”); Wiggins, 539 U.S. at 518, 123 S.Ct. 2527 (“ ‘[D]etailed social service records [ ] recorded ... [petitioner's] borderline retardation.’ ”); Williams v. Taylor, 529 U.S. 362, 370, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (post-conviction testimony showed petitioner “was ‘borderline mentally retarded,’ had suffered repeated head injuries, and might have mental impairments organic in origin”); Lambright v. Schriro, 490 F.3d 1103, 1111–12 (9th Cir.2007) (post-conviction experts agreed petitioner “suffers from a depressive disorder and from polysubstance dependency” and petitioner's expert concluded he “suffers from a personality disorder with antisocial, borderline, and inadequate features”); Stankewitz v. Woodford, 365 F.3d 706, 718 (9th Cir.2004) (three post-conviction experts agreed petitioner “is brain-damaged” and one expert concluded he “is borderline retarded” and “suffers from significant brain dysfunction”).

The sentencing court was aware of, but not persuaded by, several mitigating circumstances that are prominently featured in the proffer. It learned about Rhoades's drug and alcohol abuse from a variety of sources. The court also knew about Rhoades's childhood health problems, including polio and foot surgeries, and the social and physical difficulties they caused. It was informed that Rhoades had limited education and was turned down by the armed forces. It was apprised of Rhoades's redeeming qualities by family and friends, who described him as a gentle, caring, and likable person until he started abusing drugs. The judge expressly recognized these positive traits, but concluded that they did not carry over to the persons Rhoades abducted and later killed. Thus, much of the newly adduced evidence is cumulative, and “adding it to what was already there would have made little difference.” Belmontes, 130 S.Ct. at 387.

Even the more complete picture portrayed in the proffer of Rhoades's dysfunctional family with its alcoholism, abuse, aberrant sexual behavior, and criminal conduct does not depict a life history of Rhoades himself that is nightmarish as it was for the petitioners in cases such as Rompilla, Wiggins, and Williams where newly produced evidence in mitigation has carried the day. In Rompilla, the additional mitigation evidence showed that the petitioner was beaten by his father with his hands, fists, leather straps, belts and sticks, was subjected to yelling and verbal abuse, was locked by his father “in a small wire mesh dog pen that was filthy and excrement filled”; was isolated as a child without contact with other children; and suffered from organic brain damage that significantly impaired several of his cognitive functions. 545 U.S. at 391–92, 125 S.Ct. 2456. The aggravating evidence was a murder committed during another felony and by torture, and a prior conviction for rape, burglary, and theft. In Wiggins, the petitioner experienced severe privation and abuse in his first six years of life, and physical torment, sexual molestation, and repeated rape thereafter in foster care. The aggravating evidence consisted solely of his crime, drowning a 77–year old woman in a bathtub and ransacking her apartment. In Williams, new evidence showed the petitioner had been severely and repeatedly beaten by his father, had been committed to the custody of the social services bureau, had no schooling beyond sixth grade, and was borderline mentally retarded. The aggravating evidence included a previous conviction for armed robbery, burglary, and grand larceny before the murder for which he received the death penalty, and after it two auto thefts and violent assaults on elderly victims as well as an arson in jail.FN23 By comparison, Rhoades's newly proffered evidence does not show that he was subjected to physical or verbal abuse as a child, or that he was abandoned or mistreated, placed within the state's custody, or institutionalized. While it is not necessary for abuse to have been aimed at Rhoades in order to be mitigating, that there is no evidence it was makes his case less compelling in light of the strength of the aggravating circumstances than the Rompilla, Wiggins, and Williams line of cases.

FN23. Cf. Porter, 130 S.Ct. at 448–51 (counsel failed to present evidence the petitioner was his violent father's favorite target, had once been shot at by his father who beat him when the shot missed, had heroic military service, and suffered from brain damage that could manifest in violent, impulsive behavior; he had been convicted of another violent felony committed during a burglary and the same course of events that resulted in the murder for which he received the death penalty); Pinholster v. Ayers, 590 F.3d 651, 674–79 (9th Cir.2009) (en banc) (the jury did not hear that petitioner suffered vicious and repeated physical abuse from his step-father and grandmother; had suffered organic, pre-frontal lobe brain damage; and was placed in a home for emotionally disturbed boys then in a state mental hospital).

The aggravating circumstances—a conviction for kidnapping, first degree murder, rape, and the infamous crime against nature (Michelbacher), and a conviction for second degree murder (Haddon), in addition to how Rhoades took Stacy Baldwin from work against her will, drove her to a secluded spot, tried to rape her, shot her in the back, and left her to die—are extraordinarily powerful. The new evidence in mitigation is tenuous. On balance, we conclude that Rhoades's newly proffered facts, taking them as true, add too little, and the aggravating circumstances are too strong, to make it reasonably probable that the sentencing decision would have been different but for counsel's performance. Consequently, Rhoades cannot satisfy the prejudice prong of Strickland, so his claim of ineffective assistance of counsel for failure to investigate and present mental state issues at sentencing fails.

Rhoades asserts that he was entitled to an evidentiary hearing on this claim, but provides no argument in support. We take it he has none to make. Rhoades had an opportunity to develop a factual record and submitted a substantial proffer that the district court accepted. It found that even if the factual proffer were credible and proved, Rhoades could not establish prejudice. As explained, we agree. Rhoades points to no additional evidence that would be presented if an evidentiary hearing were held. In short, no abuse of discretion appears.

We must decide whether imposing the death penalty for first-degree kidnapping, when the perpetrator kills the victim, violates the Eighth Amendment. Rhoades maintains that because Idaho's kidnapping death penalty statute does not require the taking of a life, imposing a capital sentence is grossly disproportionate to the offense and is invalid under the Eighth Amendment and Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), Eberheart v. Georgia, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977), and Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). FN24 In Coker, the Supreme Court held that a death sentence is disproportionate punishment with respect to rape of an adult woman, noting that the rapist, as such, does not take human life. 433 U.S. at 598, 97 S.Ct. 2861. The same day, the Court applied Coker to kidnapping and rape of an adult woman. See Eberheart, 433 U.S. at 917, 97 S.Ct. 2994. The Court again applied Coker in Enmund to invalidate imposition of the death penalty for aiding and abetting a felony that results in death when the defendant himself does not kill, attempt to kill, or intend that killing take place. Enmund, 458 U.S. at 801, 102 S.Ct. 3368. See also Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 2646, 171 L.Ed.2d 525 (2008) (holding that the Constitution bars imposition of the death penalty for the rape of a child “where the crime did not result, and was not intended to result, in death of the victim”). FN24. Death is not an element of first degree kidnapping in Idaho, Idaho Code § 18–4502. The death penalty may be imposed if the sentencing court finds at least one of several aggravating factors, none of which requires death. Id. § 18–4504(1); 18–4505(6).

The district court held that neither Coker, Eberheart, nor Enmund bars imposition of the death penalty for Baldwin's kidnapping because the kidnapping did, in fact, result in death. Rhoades points out that the trial court did not consider Baldwin's death to be an aggravating circumstance in imposing the death penalty, but the trial court did find that Rhoades intended to shoot and kill Baldwin when he kidnapped her, and that he did shoot her and she died. This distinguishes Rhoades from Coker, Eberheart, and Enmund, who neither intended to kill their victims nor killed them. As Kennedy indicates with reference to these cases, the Court “has held that the death penalty can be disproportionate to the crime itself where the crime did not result, or was not intended to result, in death of the victim.” 128 S.Ct. at 2650. Here, Rhoades intended for Baldwin to die when he kidnapped her, and he in fact took her life. When the kidnapper intends murder and in fact commits murder, the moral distinction between a “murderer” and a “robber,” “rapist,” or “kidnapper” that underlies the rationale in Coker, Eberheart, and Enmund dissolves. In these circumstances one is not left with an “abiding conviction” that the death penalty is excessive. Coker, 433 U.S. at 598, 97 S.Ct. 2861. Rhoades also claims that the death sentence for kidnapping involved “double-counting” the fact of Baldwin's murder contrary to Idaho law. However, state-law issues are not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Therefore, we decline to consider it.

XII

Rhoades asserts that the three statutory aggravating circumstances for kidnapping violate the Eighth Amendment because they permit imposition of death for a crime less than murder where the victim is an adult. He makes no argument in support. To the extent he challenges the aggravators for allowing the death penalty for less than murder, we have explained why it was not unconstitutionally imposed as to Rhoades. Whether Idaho's first degree kidnapping scheme is constitutional in some other case where death does not result is not before us. Beyond this, we decline to suppose what Rhoades has in mind.

XIII

Rhoades next submits that the evidence was constitutionally insufficient to prove the kidnapping aggravators. So long as any single aggravator is supported, constitutional infirmities as to the remaining ones are harmless. See Pizzuto v. Arave, 280 F.3d 949, 970–71 (9th Cir.2002).

We start with the circumstance in Idaho Code § 18–4505(6)(a), “torture, maiming or the intentional infliction of grievous mental or physical injury.” Rhoades suggests there is no evidence showing intentional infliction of extreme and prolonged pain, which is the definition of torture. Regardless, there is ample evidence to support the finding with respect to intentional infliction of grievous mental or physical injury. Rhoades shot Baldwin three times and fired other shots at her while she was lying on the ground; Baldwin had sand under her fingernails and scattered scapes; and she may have lingered, wounded, for an hour or so. At the archery range, Rhoades told Baldwin “Pray, you fucking cunt.” Rhoades also argues that the abduction itself was not aggravated; he points out that there was no sign of a struggle inside the store, and that the trip to the site where the body was found would take about four minutes. But Holm testified that Rhoades told him that Baldwin was screaming and hysterical in the truck. Further, Rhoades contends that the shooting cannot be used to establish the physical injury component because the killing itself would be the basis of a felony-murder charge that, in turn, could be the basis for a death sentence if the defendant had a specific intent to kill. However, a rational fact-finder could find intentional infliction of grievous mental or physical harm based on Baldwin's suffering before she died. To the extent Rhoades also makes a variation of his “double-counting” argument that turns on Idaho law, we do not reach it; to the extent he makes some other argument, he offers no authority in support. Finally, Rhoades attacks the credibility of witnesses such as Holm and the pathologist whose testimony supports the trial court's determination. But assessing the credibility of witnesses and weighing the evidence is for the trier of fact who, we presume, resolved both in favor of finding the aggravator.

After viewing the evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found aggravating factor (a) beyond a reasonable doubt. Lewis v. Jeffers, 497 U.S. 764, 781, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (applying the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard to federal habeas review of a state court's finding of statutory aggravating factors). Given sufficiency of the evidence on this aggravator, we have no need to consider the others.

XIV

Rhoades asserts that his appellate counsel rendered ineffective assistance by failing to raise the unconstitutionality of the death penalty for kidnapping, and correspondingly that the district court should have held an evidentiary hearing on this claim. The only argument in support is that otherwise, his death sentence for first degree kidnapping would have been reversed. Absent anything called to our attention about what counsel thought or how Idaho would likely have responded to such an argument, we cannot but conclude that counsel's performance was neither deficient nor prejudicial. See Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1414, 173 L.Ed.2d 251 (2009) (holding that counsel's failure to assert a defense that was “almost certain to lose” did not violate “any ‘prevailing professional norms' of which the Court is aware”).

Victim impact statements were submitted as part of the pre-sentence investigation report to the trial court. Baldwin's husband, for example, stated that “he wants the maximum sentence given to the man who killed Stacy”; that he believes in the death sentence; and that he didn't want Rhoades to do this to anyone else. Her mother-in-law related that the family favors a death sentence. Her mother stated that she hoped Rhoades “burns in hell for what he did to Stacy.” She added that she was glad Stacy fought him, and that she approves of capital punishment. Rhoades contends that consideration of such statements offends his Eighth Amendment rights under Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). In Booth, the Supreme Court held that the Eighth Amendment precludes (1) a description of the personal characteristics of the victim or emotional trauma suffered by the victim's family, and (2) a formal presentation of the family's opinions of the crime. Id. at 504–05, 508–09, 107 S.Ct. 2529. Booth was overruled in part by Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), where the Court receded from a per se rule rejecting admissibility of the first type of evidence. Id. at 827, 111 S.Ct. 2597. Both the Idaho Supreme Court and the district court held that any Booth error in this case was harmless.

The family statements that Rhoades finds objectionable seem to us to fall more into the second—or still precluded—category than into the first. However, Booth 's concern that victim impact statements “can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant,” 482 U.S. at 508, 107 S.Ct. 2529, is not the same when, as here, a judge does the sentencing. We assume that the trial judge applied the law— Booth, at the time FN25—and considered only evidence that he knew was admissible. See Landrigan v. Stewart, 272 F.3d 1221, 1230 (9th Cir.2001); Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir.1998) (rejecting a similar argument as the judge can “separate the wheat from the chaff”). Thus, there was no error. FN25. Booth came down June 15, 1987. Rhoades was sentenced May 13, 1988.

XVI Rhoades's last challenge is to Idaho Code § 19–2719, which imposes a forty-two day time limit for the filing of post-conviction proceedings in capital cases whereas non-capital defendants have five years within which to pursue post-conviction relief. He submits this violates his right to due process and equal protection, but without explication. We resolved this otherwise in Hoffman v. Arave, 236 F.3d 523 (9th Cir.2001), where we affirmed as to all challenges to Idaho Code § 19–2719 except to the extent it applied to ineffective assistance claims when no new counsel had been appointed. AFFIRMED.

Rhoades v. Henry, 598 F.3d 511 (9th Cir. 2010). (Haddon Habeas)

Background: Following affirmance of his state-court convictions for second-degree murder and robbery, 809 P.2d 455, petitioner sought federal habeas relief. The United States District Court for the District of Idaho, Edward J. Lodge, J., entered order denying petition, and petitioner appealed.

Holdings: The Court of Appeals, Rymer, Circuit Judge, held that: (1) petitioner was not entitled to supplement record with police report, and (2) petitioner was not entitled to certificate of appealability (COA) on claim that he was denied due process when judge refused to disqualify himself. Affirmed.

Rhoades v. Henry, 611 F.3d 1133 (9th Cir. 2010). (Michelbacher Habeas)

Background: Idaho state prisoner petitioned for federal habeas corpus relief following affirmance of his conviction and death sentence, 822 P.2d 960, and denial of post-conviction relief, 220 P.3d 1066. The United States District Court for the District of Idaho, Edward J. Lodge, District Judge, 2007 WL 951897, denied petition and prisoner appealed. The Court of Appeals, 598 F.3d 495, affirmed denial of relief on convictions for murder and kidnapping, but deferred submission on penalty phase issues pending state court decision, 233 P.3d 61, on prisoner's post-conviction petition regarding his entitlement to jury sentencing.

Holdings: On subsequent determination, the Court of Appeals, Rymer, Circuit Judge, held that: (1) prisoner was not prejudiced by any defective performance by defense counsel, and (2) prisoner was not entitled to relief from death sentence imposed on kidnapping charge. Affirmed.

RYMER, Circuit Judge:

Paul Ezra Rhoades was convicted by an Idaho jury of the 1987 first degree murder, first degree kidnapping, robbery, rape, and infamous crime against nature of Susan Michelbacher. The trial court sentenced him to death on his convictions for first degree murder and first degree kidnapping; and the Idaho Supreme Court upheld his conviction, sentence, and denial of post-conviction relief. State v. Rhoades (Michelbacher), 121 Idaho 63, 822 P.2d 960 (1991). The district court denied his petition for habeas corpus. Rhoades appealed, and we previously affirmed denial of relief on the conviction, Rhoades v. Henry (Michelbacher), 598 F.3d 495 (9th Cir.2010). However, because a post-conviction petition asking the Idaho Supreme Court to apply Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), retroactively was then pending before the Idaho Supreme Court, we deferred submission on penalty phase issues. That court has now ruled, upholding the sentence. Rhoades v. State, 233 P.3d 61(Idaho 2010), reh'g denied (June 4, 2010). Accordingly, we now turn to the issues on which Rhoades seeks to overturn the district court's judgment that his sentence was not constitutionally infirm. We see no error, and affirm.

I The facts are set out in the Michelbacher opinion, but in brief, Michelbacher was a teacher who left for school around 6:30 in the morning of March 19, 1987, to make lesson plans for a substitute and to return home because she wasn't feeling well. She made it to school, but not home. Around 7:30 a.m. a van that looked like Michelbacher's, with Rhoades as a passenger, nearly collided with Valerie Stapf in a parking lot. It backed off and went toward the First Interstate Bank where Michelbacher cashed a check for $1000 at the drive-in window when it opened at 8:30 a.m. A few minutes later she cashed another $1000 check at another branch. Around 10:00 a.m. Susan Browning, who lived less than a mile from where Michelbacher's body was found, saw Michelbacher's van enter her driveway then back out. She identified Rhoades as the driver. Others saw Rhoades in the van later in the day.

Michelbacher's body was found on March 21 in a remote, rural area. She had been raped, shot nine times-once while standing and the rest while lying down-and her attacker had ejaculated into her mouth when she was either almost dead or already dead. Rhoades could not be excluded as the semen donor, or as the source of head and pubic hair retrieved from her body. Rhoades was seen with a large amount of cash after Michelbacher's death, and he went to Nevada to gamble.

A Ford LTD stolen from Rhoades's mother was spotted on the median of a highway not far from Wells, Nevada. A .38 caliber revolver was found lying on the ground outside the driver's door; it was the gun used to fire the bullets that killed Michelbacher. Rhoades was tracked to the 4 Way Casino and arrested. When one of the Idaho police officers at the scene remarked that if he had arrested Rhoades earlier, maybe the victim would be alive, Rhoades responded “I did it.”

After the jury found Rhoades guilty on all counts, the trial court held a sentencing hearing. It concluded that the mitigating factors did not outweigh any of the statutory aggravating circumstances that it found. Accordingly, the judge sentenced Rhoades to death for first degree murder and for first degree kidnapping. It imposed fixed life prison sentences for the remaining crimes. The Idaho Supreme Court upheld his sentence and denial of post-conviction relief. State v. Rhoades (Michelbacher), 121 Idaho 63, 822 P.2d 960 (1991). Rhoades filed for habeas relief in federal court before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), so this petition is governed by pre-AEDPA law.

While his federal petition was pending, Rhoades filed several successive petitions in state court. One claimed that he was entitled to jury sentencing based on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Following dismissal by the Idaho Supreme Court based on Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), Rhoades petitioned for a writ of certiorari to the United States Supreme Court. The petition was granted and the case remanded for further consideration in light of Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), which indicated that states may decide to apply Ring retroactively to state post-conviction proceedings. We deferred ruling on penalty phase issues until this issue was resolved. On March 17, 2010, the Idaho Supreme Court “adopt[ed] Teague [ v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ], conclude[d] that Ring is not retroactive under Idaho law and affirm[ed] the district courts' denial of [Rhoades's] requests for relief.” Rhoades v. State, 233 P.3d at 71. Accordingly, we now address Rhoades's claims with respect to his sentence.

Rhoades claims that his trial counsel rendered ineffective assistance in failing to investigate, develop, and present mental state issues, in particular, with respect to obtaining assistance of mental health experts, seeking meaningful mitigation investigation assistance, and otherwise familiarizing themselves with Rhoades's background. For example, he argues, counsel furnished no social history to the expert they did have, they were either unaware of incest within Rhoades's family or did not think it was important, and they didn't have specific information about Rhoades's drug use and didn't believe it was germane. In addition, he submits that the district court abused its discretion in denying him an evidentiary hearing on the issue.

The trial court appointed Stephen Hart and John Radin to represent Rhoades. Radin's partner, Russell Webb, also worked on the case. Webb and Radin were primarily responsible for handling mental health issues. Webb's 2007 declaration indicates that he hired Dr. Kenneth Ash before trial to look into a potential insanity defense. Counsel had very little social history information about Rhoades to give Ash, but did furnish police reports, information from Rhoades's school transcript, and their investigator's initial report. Dr. Ash examined Rhoades, and concluded there was no basis for an insanity defense.

Radin was deposed in 1996 in the federal proceeding. He indicated that counsel contacted Ash in part because they were aware of Rhoades's drug use, and Ash had some speciality in this field. He said the family was aware of Rhoades's drug use, but not the extent of it. Counsel did not focus on drug use at trial or sentencing as they did not think it would help their actual innocence defense. In Radin's view, the focus didn't shift between the guilt phase and sentencing because they continued to maintain innocence. They made a tactical decision that Ash could hurt more than help given counsel's wish to preserve legal issues about the state's repeal of an insanity defense. However, they hired an investigator to prepare a presentence report. Radin learned about allegations of incest between Rhoades and his sister through their investigator's presentence report; Rhoades never mentioned it himself. He didn't dwell on it at sentencing because Rhoades's family was in the courtroom.

Hart also was deposed in 1996. As he was in charge of learning about Rhoades's background, he spent a lot of time talking to family members and had some contact with neighbors. Hart stated that given twenty-twenty hindsight, he might approach the problem of psychological testing, drug use, and abnormal rearing differently today than at the time.FN1 On the one hand, he said this wasn't a conscious decision because they didn't perceive those things as being mitigating; on the other hand, he stated they had made a conscious decision not to get into mental issues because they were following the same case approach (actual innocence) throughout. FN1. We note that “it is all too easy” for counsel or a court “to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.” Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). That is why the Court has repeatedly cautioned that courts must indulge a “strong presumption” that counsel's conduct falls within the wide range of reasonable professional assistance. Id.; see Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Counsel had a presentence report prepared that included a statement from Rhoades professing his innocence; a list of his prior arrests and how they were resolved, along with Rhoades's explanation for some of them; a brief description of family history, education, employment, and relationships; and an evaluation. It highlighted Rhoades's positive character traits, in particular his non-aggressive nature and trustworthiness with females. It addressed his childhood polio and how he had been discriminated against due to his family's reputation. The report mentioned Rhoades's use of alcohol and drugs.

The state also submitted a presentence report describing Rhoades's criminal record, family information, interests and activities, education, and employment. It covered his childhood polio and indicated that he sometimes had to fight because his name was Rhoades, he was not aggressive toward people or animals, he often babysat his nieces and nephews, and he was a skilled sheetrocker. The state's report also noted that Rhoades had applied to the Army and Marine Corps but had been turned down due to polio. In addition, it included a section on Rhoades's health, reciting that he denied having any mental or emotional problems, has a balance problem as a result of polio, and had used and abused drugs of all kinds for 19 years. The presentence officer expressed his opinion that a psychological evaluation was warranted. Finally, the state's report indicated that collateral contacts and family members described Rhoades's youth and early adulthood as “comparatively normal.”

Before the sentencing hearing, the trial judge followed up on the state presentence officer's recommendation by asking whether Rhoades objected to psychological testing. Webb strongly opposed it, noting counsels' concern that there was another trial coming up, and that whatever was done in this sentencing would potentially affect that matter. When the judge nevertheless arranged for a local expert to evaluate Rhoades, Webb again expressed strong opposition. This time he mentioned the possible interaction with Idaho's repeal of the insanity defense, and the Fifth Amendment implications given the unusual time frame of another murder trial in the offing. The court backed off.

At the sentencing hearing, the state called no witnesses and Rhoades called twenty (his mother, father, two sisters, brother, sister-in-law, two aunts, three uncles, one cousin, and eight jail officials). Several noted the difficulty of Rhoades's childhood polio and foot surgeries, and how he was left poorly coordinated. Many claimed he could not be guilty of the crimes charged. Rhoades's mother said she knew Rhoades had used drugs and maybe had sold them; his brother testified that he knew Rhoades was on drugs. A few witnesses discussed how Rhoades was a good worker, and the jailors testified that he was a well-behaved and helpful inmate.

Radin's closing argument outlined why the state had failed to prove the aggravating factors beyond a reasonable doubt, and talked about Rhoades's gentle nature and trustworthiness with women; his lack of prior felonies and minor record; lingering doubts as to guilt; difficulties resulting from polio and surgeries; his family's poverty; his lack of education; his capacity for rehabilitation and potential to be a model prisoner; his redeeming qualities; and evidence that Rhoades fell into a pattern of drug and alcohol abuse.

Under Idaho law at the time of Rhoades's sentencing, when a person is convicted of first degree murder the judge determines whether at least one of ten statutory aggravating circumstances has been established beyond a reasonable doubt. See Idaho Code § 18-4004 (1988); id. § 19-2515. If at least one circumstance is found, the court “shall sentence the defendant to death unless the court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance found and make imposition of death unjust.” Id. § 19-2515(c). The same mitigation inquiry is made in the case of first degree kidnapping if the judge finds, beyond a reasonable doubt, at least one of five statutory aggravating circumstances. See id. §§ 18-4504, 4505. The sentencing judge made extensive findings. Among other things, he found that Rhoades had a limited education but was relatively intelligent; his family life was normal, though he was subject to abuse or rejection in other settings because he was a member of the Rhoades family and had residual effects from polio, which he substantially overcame; he was a skilled sheetrocker with a good employment history; he used alcohol and drugs to excess; he had been a cooperative prisoner; he had no prior significant record; and he was a trusted babysitter and was trusted by women who knew him. On the aggravating side, the judge found that Rhoades's crimes were extremely wicked, shockingly evil, and designed to inflict a high degree of physical and mental pain with utter indifference to Michelbacher's suffering. As the judge explained:

Defendant repeatedly and brutally shot Mrs. Michelbacher as she struggled to escape. The shooting required defendant to reload his six shot .38 caliber revolver at least once. Defendant then senselessly and needlessly stood over his victim and shot her as he walked beside her while she laid on the ground. Then, after having shot his victim eight times, turned her over and shot her in the middle of her chest at close range. Thereafter, as she lay dying, he somehow mounted, straddled or laid himself on the face, shoulders and chest of his victim, inserting his penis into her mouth, and ejaculated. After that, the judge observed, Rhoades appeared normal, paid bills, entertained himself, and gambled with the spoils of his crime.

The court found three aggravating factors on the murder conviction beyond a reasonable doubt: (1) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity, in that Rhoades repeatedly shot Michelbacher as she struggled to escape, requiring him to reload his revolver, then senselessly stood over his victim and shot her as she lay on the ground, then after having shot Michelbacher eight times, turned her over and shot her in the middle of her chest at close range, and thereafter, inserted his penis into her mouth and ejaculated. He left her to die. While she was alive Rhoades raped her. Idaho Code § 19-2515(g)(5). (2) Michelbacher's murder was by the infliction of numerous gun shot wounds, including the final shot to the middle of her chest, accompanied with the specific intent to cause death. It was murder of the first degree. Id. § 19-2521(g)(7). (3) The circumstances of the Michelbacher murder and related crimes show a propensity to commit murder which will probably constitute a continuing threat to society. Id. § 19-2515(g)(8). FN2. The court also indicated that the crime exhibits utter disregard for human life, which satisfies factor (g)(6), but made no formal finding to avoid possible overlapping of statutory aggravating factors.

With respect to the kidnapping conviction, the court found three aggravating circumstances beyond a reasonable doubt: (1) Rhoades's conduct from 7:30 a.m. on March 19 when he kidnapped Michelbacher until her death later that same day, including subjecting the victim to rape and related sexual abuse, shows the intentional infliction of grievous mental and physical injury. Idaho Code § 18-4505(6)(a). (2) By kidnapping the victim and conducting himself as he did, Rhoades knowingly created a great risk of death which ultimately occurred under tragic circumstances. Id. § 18-4505(6)(b). (3) The kidnapping and associated actions could only have terrorized, and caused severe mental anguish and horror to Michelbacher during the last hours of her life. She was not released unharmed. Thus, the kidnapping was especially heinous, atrocious, cruel and manifested exceptional depravity. Id. § 18-4505(6)(d). The trial court found each aggravating circumstance, standing alone, would be sufficient to impose the death penalty, i.e., after weighing all the facts and circumstances, the mitigating factors did not outweigh the gravity of any one of them.

In the district court Rhoades submitted a 1000-page factual proffer that contained declarations from Craig Beaver, Ph.D., a neuropsychologist, Pablo Stewart, M.D., a psychiatrist and neurologist, Rhoades's Bingham County attorney, two police officers, various members of his family and several friends; medical records for Rhoades and his family; criminal records for his father and other members of the family; his elementary school transcript; and a family tree depicting drug and alcohol abuse, suicide, intelligence, mental health, and criminal convictions.

Dr. Beaver's declaration, which synthesized the other declarations as well as the records in Rhoades's proffer, indicates that Rhoades's father was intellectually deficient, physically abused, and suicidal before marrying his mother; there was extensive alcoholism and drug addiction in Rhoades's immediate and extended family; reportedly Rhoades's parents beat up at least some of their children and there was physical and emotional abuse between his father and mother; Rhoades's sister was sexually abused by cousins and an uncle, and there were reports of “unhealthy sexual behaviors” among Rhoades's sisters and extended family; one of Rhoades's sisters told another sister that she had been sexually active with Rhoades for years, and Rhoades entered into a sexual relationship with his aunt after his uncle committed suicide; and his family had an extensive criminal history. Beaver further stated that “[t]he alcoholism and suicides seen in the past generations of [Rhoades's] family very likely play a genetic role in the emotional and mental health of [Rhoades] and his siblings.” His report concluded that Rhoades's family context deprived him of normal development; his own medical problems further limited his potential as a human being; it was not surprising that he had chemical dependency issues and knew little about normal sexual and interpersonal relationships; his drug addiction was overdetermined; he was genetically loaded for substance abuse; his chronic use of methamphetamine “may well have damaged his brain in areas critical to impulse control and the ability to think clearly in high pressured situations”; and “further neurophysychological testing has always been necessary to fully and adequately assess Paul Rhoades.”

Based on Beaver's declaration and other items in the proffer, Dr. Stewart provided a “working assessment regarding psychiatric findings.” He wrote that Rhoades was at significant risk of developing a substance abuse disorder from an early age; Rhoades inherited the diseases of alcoholism and drug abuse; he was born into a family that suffered from major mental illness and neuropsychological impairment; multiple members of Rhoades's family have been institutionalized, have been determined to have sub-average intelligence, and have committed suicide-which puts Rhoades “at substantial risk of developing his own mental health problems, including mood disorders, cognitive dysfunction, substance abuse, and suicidality”; Rhoades “may have been born with some mental deficiencies”; he was placed in special education classes in school; Rhoades's family is overwhelmingly positive for mental illness, which “places him at severe risk for developing his own mental health conditions”; and Rhoades's history, including polio, is “extremely suggestive of his suffering from post Traumatic Stress Disorder that had a childhood onset” even though the requirements of the DSM-IV are not satisfied in all aspects. Stewart's “working assessment” listed diagnoses of Posttraumatic Stress Disorder, Cognitive Disorder NOS, Substance Induced Mood Disorder, and Substance Induced Psychotic Disorder, without further elaboration.

Rhoades contends that his counsel was constitutionally ineffective for having failed to uncover the mitigating evidence exemplified in his proffer. The district court found that Rhoades could not establish deficient performance in light of counsels' concerns about the extent to which their expert would help or hurt and the possibility of developing adverse information that could have been used in Rhoades's pending murder cases. It also concluded that Rhoades could not establish prejudice because the aggravated nature of these crimes was too strong, and new mitigating evidence added too little, to create a reasonable probability of a different outcome.

“To prevail on this claim, [Rhoades] must meet both the deficient performance and prejudice prongs of Strickland.” Wong v. Belmontes, ---U.S. ----, 130 S.Ct. 383, 384, 175 L.Ed.2d 328 (2009) (per curiam). Accordingly, if Rhoades cannot meet “the highly demanding and heavy burden of establishing actual prejudice,” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.2005) (internal quotation marks and brackets omitted), it is unnecessary to determine whether Rhoades's counsel's performance was deficient, see Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.”). This is the course that we follow.

To demonstrate actual prejudice under Strickland, a “ ‘defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “To assess that probability, we consider the totality of the available mitigation evidence-both that adduced at trial, and the evidence adduced in the habeas proceeding-and reweigh it against the evidence in aggravation.” Porter v. McCollum, --- U.S. ----, 130 S.Ct. 447, 453-54, 175 L.Ed.2d 398 (2009) (per curiam) (internal quotation marks and brackets omitted). Finally, “[i]n evaluating prejudice,” Rhoades's “ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government's case.” Rios v. Rocha, 299 F.3d 796, 808-09 (9th Cir.2002) (internal quotation marks omitted).

We agree with the district court's analysis. The crimes were especially cruel, as the trial court found and for the reasons it gave. The state court was also aware of mitigating circumstances that were individual to Rhoades. For sure, they were not as detailed or extensive as in the proffer, but the difference between what Rhoades's counsel investigated and presented, and what they could have investigated and presented, is not so pronounced that the new evidence would have outweighed any one of the aggravating circumstances. As the district court noted, even the proffer has no persuasive evidence that Rhoades was himself physically or violently abused as a child, abandoned, placed within the state's custody, or otherwise institutionalized. Further, as the court found, despite the passage of twenty years, the defense experts do not conclusively fill in the blanks about Rhoades's mental or emotional state. We considered the same proffer and expert submissions in the Baldwin case, and conclude that they have no greater effect here for the same reasons we explained there. See Rhoades v. Henry (Baldwin), 596 F.3d 1170, 1191-95 (9th Cir.2010). Accordingly, Rhoades cannot satisfy the prejudice prong of Strickland. Therefore, his claim of ineffective assistance of counsel based on the failure to investigate and present mental state issues fails.

Rhoades's assertion that he was entitled to an evidentiary hearing is unsupported by argument. Not only does this waive the issue, but Rhoades points to no additional evidence that would be presented if one were held. We will not find an abuse of discretion in these circumstances.

III

The trial court imposed the death sentence for the crime of first degree kidnapping in addition to the death sentence imposed for first degree murder. Neither the circumstances found by the sentencing judge, nor any listed in the Idaho statute, requires death.

As a result, Rhoades contends his sentence on the kidnapping count is unconstitutional for several related reasons. First, it violates the Eighth Amendment because it is grossly disproportionate to the offense under Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (so holding with respect to rape of an adult woman), and Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (so holding with respect to aiding and abetting a felony that results in death where the defendant did not himself kill, attempt to kill, or intend that killing take place). He points out that death was not an element of the crime, or an aggravating circumstance, and asserts that the trial court did not consider Michelbacher's death to be an aggravating circumstance in imposing the death sentence. Also, Rhoades complains that the sentencing judge double counted the fact of death, contrary to Idaho law. We considered, and rejected, the same arguments in the Baldwin case, which we follow in this case. Rhoades (Baldwin), 596 F.3d at 1195-96. In short, violations of state law are not cognizable on federal habeas review. Death did occur here, unlike Coker, Eberheart v. Georgia, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977), and Enmund. The trial court's summation left no doubt that Rhoades intended to take Michelbacher's life and took it in an especially atrocious way. See Kennedy v. Louisiana, --- U.S. ----, 128 S.Ct. 2641, 2646, 171 L.Ed.2d 525 (2008) (holding that the Constitution bars imposition of the death penalty for the rape of a child “where the crime did not result, and was not intended to result, in death of the victim”).

Further, Rhoades submits that he was unlawfully sentenced to death where the victim was an adult and the aggravating circumstances allow for death to be imposed for as little as a “mental injury” or the mere “risk” of harm. He also contends that the statutory aggravators found by the trial court do not sufficiently narrow the class of individuals eligible for the death penalty because they permit the imposition of death for a crime less than murder. This retreads his basic Coker argument, and fails for the reasons set out in Rhoades (Baldwin). 596 F.3d at 1196. Beyond this, Rhoades simply understates the statute, which requires “grievous” mental or physical injury, Idaho Code § 18-4505(6)(a), and a knowingly created “great” risk of “death,” id. § 18-4505(6)(b). In any event, the trial court here did not find an unadorned “mental injury” or just a “risk” of harm, but found that Rhoades's conduct subjected Michelbacher to grievous mental injury and to a great risk of death that in fact ensued. Thus, we have no occasion to be concerned with some other application that might be to a non-grievous mental injury or to a non-great risk of death.

Finally, Rhoades maintains that the aggravating circumstances relied on by the sentencing court were unsupported by the evidence. So long as any single aggravator is supported, constitutional infirmities as to remaining ones are harmless. See Pizzuto v. Arave, 280 F.3d 949, 970-71 (9th Cir.2002). Accordingly, we start with factor (a), and determine whether any rational trier of fact could have found that Rhoades subjected Michelbacher to torture or the intentional infliction of grievous mental or physical injury. See Lewis v. Jeffers, 497 U.S. 764, 781, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (applying the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard to federal habeas review of a state court's finding of statutory aggravating factors).

As Rhoades sees it, there is no evidence that Michelbacher suffered grievous mental injury while she was in the van, nor may the rape or shooting be used to establish the grievous physical injury component of the aggravator because the killing itself would be the basis of a felony-murder charge that, in turn, could be the basis for a death sentence if the defendant had a specific intent to kill. However, in our view, a rational trier of fact could find that Rhoades intentionally inflicted grievous mental or physical harm. Michelbacher was a random kidnapping victim. She had abrasions on her mouth and chin caused by sliding across pavement or something like it. Rhoades raped Michelbacher and then shot at her. The first shot probably went into her left femur, fracturing it. After she was lying down Rhoades shot her eight more times. Rhoades also repeats his argument that Idaho law does not allow double-counting, but we do not reach this question because it is a matter of state law.

After viewing the evidence in the light most favorable to the prosecution, we conclude that any rational fact-finder could have found aggravating factor (a) beyond a reasonable doubt. Given sufficiency of the evidence on this aggravator, we have no need to consider the others.

Section 19-2719(3) of the Idaho Code requires a capital defendant to raise all known legal or factual challenges to his conviction or sentence in one application for post-conviction relief within forty-two days of sentencing. Rhoades submits that these requirements violate his rights to equal protection and due process. However, we resolved this issue in Hoffman v. Arave, 236 F.3d 523 (9th Cir.2001) (affirming as to all challenges to Idaho Code § 19-2719 except to the extent it applied to ineffective assistance claims when no new counsel had yet been appointed).

One issue remains that is not certified for appeal.FN3 In it, Rhoades claims that victim impact statements of the sort made in this case by Michelbacher's husband-expressing his desire to see justice is done-are unconstitutional under Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). Assuming that reasonable jurists would find the point debatable, see Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), and that a COA should issue, we reach the same conclusion on the merits here as in the Baldwin case. Rhoades (Baldwin), 596 F.3d at 1197-98. In short, Albert Michelbacher's statement essentially expresses an opinion of the crime, which implicates the prong of Booth that survived Payne v. Tennessee, 501 U.S. 808, 830 n. 2, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). However, sentencing in this case was to the court, not to a jury, and we presume that the judge knew and applied the law. As a result, there is no Booth error. FN3. An appeal may not be taken unless the district judge or we issue a Certificate of Appealability (COA). 28 U.S.C. § 2253(c)(1). A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).

DENIAL OF RELIEF AS TO SENTENCE AFFIRMED.


Since 1976	Date of Execution	State	Method	Murderer (Race/Sex/Age at Murder-Execution)	Date of Birth	Victim(s) (Race/Sex/Age at Murder)	Date of Murder	Method of Murder	Relationship to Murderer	Date of Sentence
1277 (43)	11-18-11	ID	Lethal Injection	Paul Ezra Rhoades W / M / 30 - 54	01-18-57	Stacy Dawn Baldwin W / F / 21 Nolan Haddon W / M / 23 Susan Michelbacher W / F / 34	02-28-87 03-17-87 03-19-87	Handgun	None	05-13-88 1988 05-24-88