                IN THE SUPREME COURT OF THE STATE OF IDAHO
                               Docket No. 27966/31928
STATE OF IDAHO,                             )
                                            )
   Plaintiff-Respondent-Cross Appellant,    )        Boise, August 2009 Term
                                            )
v.                                          )        2010 Opinion No. 3
                                            )
DALE CARTER SHACKELFORD,                    )        Filed: January 20, 2010
                                            )
   Defendant-Appellant-Cross Respondent. )           Stephen W. Kenyon, Clerk
                                            )
                                            )

       Appeal from the District Court of the Second Judicial District, State of Idaho,
       Latah County. Hon. John R. Stegner, District Judge.

       Judgment of conviction and sentence of death for first-degree murder, conspiracy
       to commit first-degree murder, first-degree arson, conspiracy to commit first-
       degree arson and preparing false evidence, affirmed.

       Griffard Law Offices, Boise, for appellant. Leo N. Griffard, Jr., argued.

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

                           __________________________________
BURDICK, Justice
       Dale Carter Shackelford appeals from his judgment of conviction, based upon jury
verdicts finding him guilty of the first-degree murders of Donna Fontaine and Fred Palahniuk,
conspiracy to commit first-degree murder, first-degree arson, conspiracy to commit first-degree
arson, and preparing false evidence. He also appeals from his sentences of death for first-degree
murder, as well as the partial denial of his claims for post-conviction relief. The State cross-
appeals, challenging the district court‟s grant of post-conviction relief, which set aside
Shackelford‟s death sentences and requires resentencing. We find that any error committed by
the district court was harmless, and we therefore affirm on all issues. We affirm the district
court‟s order for resentencing on different grounds.

                                                1
                         I. FACTUAL AND PROCEDURAL BACKGROUND
          Dale Shackelford was convicted of the murders of his ex-wife, Donna Fontaine, and her
boyfriend, Fred Palahniuk, which occurred near the Latah County town of Kendrick, Idaho, in
May 1999. The State alleged that Shackelford conspired with Martha Millar, Bernadette Lasater,
Mary Abitz, Sonja Abitz, and, John Abitz.1                    Millar and Lasater worked for Shackelford‟s
trucking business, Shackelford Enterprises, in Missouri.                 The Abitz family lived near the
residence where the bodies of Donna and Fred were found. Sonja Abitz was Shackelford‟s
fiancée at the time of the murders, and John and Mary Abitz are Sonja‟s parents. The alleged
conspirators eventually pled guilty to charges related to the murders.
          Shackelford and Donna married in Missouri in December 1995 and the relationship
ended in the summer of 1997, with the couple divorcing in November of that year. Donna
accused Shackelford of raping her in July 1997, and charges were filed in 1998. In the spring of
1999, Donna developed a relationship with Fred and, on May 28, 1999, the two visited Donna‟s
brother, Gary Fontaine, at the home Gary and Donna owned together outside of Kendrick. The
morning of May 29, Donna, Fred, and Gary went to the Locust Blossom Festival in Kendrick,
where they met John, Mary, and Sonja Abitz.
          After leaving the festival, Gary went to the Abitz‟s house, but he left around dark,
returned home, noticed Donna‟s pickup in the driveway, and smelled smoke. Gary called the
Abitz‟s house and reported that his two-story garage was on fire. Mary, Sonja, Ted Meske
(Mary‟s brother), and Shackelford arrived at the fire and various individuals tried to extinguish
it, but were unsuccessful.
          At 7:40 p.m., Latah County Sheriff Patrol Deputy Richard Skiles was called to
investigate the fire at 2168 Three Bear Road. When Skiles arrived at the scene, nearly an hour
later, he observed several persons—including Gary Fontaine, Mary Abitz, Sonja Abitz, Brian
Abitz (Sonja‟s brother), Ted Meske, and Shackelford—standing near the garage that was
completely engulfed in flames. Based upon information obtained from Ted and Shackelford,
Deputy Skiles contacted dispatch to have an on-call detective sent “because there was a
possibility there could be a suicide victim in the fire.” By the time the fire department arrived,
the garage had been utterly destroyed. Several hours later, after the fire had been extinguished,



1
    The charges against John Abitz were eventually dismissed.

                                                          2
two bodies were found in the rubble. The bodies were subsequently identified as the remains of
Donna and Fred. At trial, a state fire investigator testified as to his opinion that the fire was
arson.
           Doctor Robert Cihak conducted autopsies of the remains, which were severely burned.
Shotgun pellets were found in Donna‟s right chest region and a bullet was found in the back of
her neck. Dr. Cihak opined that the bullet wound was fatal and was inflicted when Donna was
still alive. A bullet was also found in Fred‟s body behind the upper breastbone, which Dr. Cihak
concluded was the cause of death. Dr. Cihak offered his opinion that Donna and Fred were dead
at the time of the fire.
           Shackelford was indicted on February 11, 2000, and charged with two counts of first-
degree murder, first-degree arson, conspiracy to commit first-degree murder, conspiracy to
commit arson, and preparing false evidence. Trial began on October 16, 2000, and concluded
December 22, 2000. The jury returned guilty verdicts on all counts charged in the Indictment.
Sentencing commenced on August 27, 2001, and, on October 25, 2001, the district court read its
Findings of the Court in Considering Death Penalty. As to Donna‟s murder, the court found that
the State had proven beyond a reasonable doubt two statutory aggravating factors: I.C. § 19-
2515(h)(2) (2000) and I.C. § 19-2515(h)(10) (2000).2 As to Fred‟s murder, the court found the
statutory aggravating factor under I.C. § 19-2515(h)(2) (2000). After weighing the mitigating
factors against the individual statutory aggravating factors, the court concluded that the
mitigating factors were not sufficiently compelling to render the death penalty unjust, and
sentenced Shackelford to death for both first-degree murders. Shackelford was also given prison
sentences for the other felony offenses. The judgment of conviction was filed November 1,
2001. Shackelford appeals from his convictions.
           On April 8, 2005, the district court addressed the parties‟ motions for summary
disposition regarding Shackelford‟s petitions for post-conviction relief.                         The court granted
Shackelford sentencing relief, concluding that Ring v. Arizona, 536 U.S. 584 (2002), mandated
that the jury conduct the weighing of aggravating and mitigating factors. The court therefore
ordered that Shackelford‟s death sentences be set aside. The court then rejected Shackelford‟s
other Ring claim that the jury must find any aggravating factors, concluding that the jury‟s



2
    The statutes are currently codified at I.C. §§ 19-2515(9)(b) and (9)(j) and consist of identical language.

                                                             3
verdict established that Shackelford murdered Donna and Fred at the same location and date,
thereby establishing the multiple-murder aggravator pursuant to I.C. § 19-2515(h)(2) (2000).
The district court concluded that three of Shackelford‟s other post-conviction claims were moot
based upon the court‟s decision to provide Shackelford with sentencing relief.                  All of
Shackelford‟s remaining claims were denied. Shackelford‟s notice of appeal and the State‟s
notice of cross-appeal were timely filed.
                                            II. ANALYSIS
       Shackelford raises numerous issues in his brief, asserting errors during both the guilt and
sentencing phases of his trial. Additionally, the State cross-appeals the district court‟s decision
setting aside Shackelford‟s death sentences. We will first address Shackelford‟s claims as to the
guilt phase of his trial, and will then turn to the arguments presented regarding sentencing.
A. Guilt Phase
   1. Evidentiary Issues
       Shackelford contends that the district court erred in admitting into evidence out-of-court
statements made by Donna Fontaine, Sonja Abitz, Mary Abitz, and Robin Eckmann.
       a. Standard of Review
       This Court reviews questions regarding the admissibility of evidence using a mixed
standard of review. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). First,
whether the evidence is relevant is a matter of law that is subject to free review. State v. Field,
144 Idaho 559, 569, 165 P.3d 273, 283 (2007).            Second, we review the district court‟s
determination of whether the probative value of the evidence outweighs its prejudicial effect for
an abuse of discretion. Stevens, 146 Idaho at 143, 191 P.3d at 221. We determine whether the
district court abused its discretion by examining: (1) whether the court correctly perceived the
issue as one of discretion; (2) whether the court acted within the outer boundaries of its
discretion and consistently within the applicable legal standards; and (3) whether the court
reached its decision by an exercise of reason. Id. However, an abuse of discretion may be
deemed harmless if a substantial right is not affected. State v. Thompson, 132 Idaho 628, 636,
977 P.2d 890, 898 (1999). “In the case of an incorrect ruling regarding evidence, this Court will
grant relief on appeal only if the error affects a substantial right of one of the parties.” Obendorf
v. Terra Hug Spray Co., 145 Idaho 892, 897, 188 P.3d 834, 839 (2008); I.R.E. 103(a). “Any




                                                 4
error, defect, irregularity or variance which does not affect substantial rights shall be
disregarded.” I.C.R. 52.
         b. The admission of Donna Fontaine’s out-of-court statements was in error, but
            that error was harmless.
         Shackelford first argues that the district court erred in allowing multiple out-of-court
statements made by Donna Fontaine to be introduced under Idaho Rule of Evidence 803(3)
because (1) Shackelford did not inject the issue of the possibility of suicide into the case; (2)
even if he did somehow inject suicide as an issue, the disputed statements bear marginal, if any,
relevance to the issue of whether Donna may have been inclined to commit suicide; and (3) the
admission of Donna‟s out-of-court statements expressing her fears of Shackelford was highly
prejudicial and the prejudicial effect of such evidence substantially outweighed any probative
value.
         Conversely, the State maintains that (1) Shackelford‟s statements drove the initial
investigation into whether there may have been a suicide victim in the fire; (2) Donna‟s state of
mind was not only relevant, but “was integral in understanding a significant issue in the case”;
and (3) based upon his own statements expressing his desire to kill Donna, the testimony of his
co-conspirators, and the forensic evidence, Shackelford has failed to establish a reasonable
possibility that the alleged error associated with the admission of testimony regarding Donna‟s
fear contributed to his conviction.         We find that the district court abused its discretion in
admitting the statements, but the error was harmless.
         Six witnesses were allowed to testify as to statements made by Donna expressing her fear
that Shackelford was going to harm her. The district court determined that these out-of-court
statements were admissible as an exception to the rule against hearsay. 3 Idaho Rule of Evidence
802 states: “Hearsay is not admissible except as provided by these rules or other rules
promulgated by the Supreme Court of Idaho.” The exception to the hearsay rule under which the
district court admitted the evidence in this case is I.R.E. 803(3):
         Then existing mental, emotional, or physical condition. A statement of the
         declarant‟s then existing state of mind, emotion, sensation, or physical condition
         (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but
         not including a statement of memory or belief to prove the fact remembered or


3
   Although Shackelford included a one-line argument in his brief on appeal that the admission of Donna‟s
statements denied him his right to confront witnesses, no Confrontation Clause objection was made during trial.

                                                      5
       believed unless it relates to the execution, revocation, identification, or terms of
       declarant‟s will.
Limited circumstances exist in which statements made by a murder victim to a third party are
admissible under I.R.E. 803(3)‟s state of mind exception to the hearsay rule. State v. Garcia,
102 Idaho 378, 382, 630 P.2d 665, 669 (1981).4 The statements may be admitted only after a
determination that (1) the declaration is relevant, and (2) the need for and value of such
testimony outweighs the possibility of prejudice to the defendant. Id. The district court erred in
finding that the out-of-court statements made by Donna were relevant; therefore, we need not
address whether the value of the testimony outweighed the possibility of prejudice to the
defendant.
       Evidence that is “„relevant to a material and disputed issue concerning the crime
charged‟” is generally admissible. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221
(2008) (quoting State v. Field, 144 Idaho 559, 569, 165 P.3d 273, 283 (2007)). Evidence is
relevant if it has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” I.R.E. 401; see also Stevens, 146 Idaho at 143, 191 P.3d at 221. Whether a fact is “of
consequence” or material is determined by its relationship to the legal theories presented by the
parties. State v. Yakovac, 145 Idaho 437, 444, 180 P.3d 476, 483 (2008).
       This Court, in State v. Goodrich, recognized four well-defined categories in which a
declarant-victim‟s state of mind is relevant because of its relationship to the legal theories
presented by the parties: (1) when the defendant claims self-defense as justification for the
killing; (2) when the defendant seeks to build his defense around the fact that the deceased
committed suicide evidence introduced which tends to demonstrate that the victim made
statements inconsistent with a design to take his or her own life is relevant; (3) when the
defendant claims the killing was accidental; and (4) when a specific “mens rea” is in issue. 97
Idaho 472, 477 n.7, 546 P.2d 1180, 1187 n.7 (1976).
       In State v. Garcia, 102 Idaho 378, 382, 630 P.2d 665, 669 (1981), this Court again
referenced the four well-defined categories laid out in Goodrich, and also cited to United States
v. Brown, 490 F.2d 758, 767 (D.C. Cir. 1973), for the D.C. Circuit‟s further discussion of the




                                                6
first three categories. Brown describes the category involving the defense theory of suicide as
follows: “[W]here a defendant seeks to defend on the ground that the deceased committed
suicide, evidence that the victim had made statements inconsistent with a suicidal bent are highly
relevant.” 490 F.2d at 767. In Garcia, this Court found that the district court had erred in
admitting the hearsay testimony of the witness because the defendant‟s defense had not been
based on any of the categories laid out in Brown and Goodrich. 102 Idaho at 382-83, 630 P.2d at
669-70.
        The United States Supreme Court dealt directly with the issue of evidence of a victim‟s
state of mind offered to rebut a defense theory of suicide in Shepard v. United States, 290 U.S.
96 (1933). In Shepard, the Supreme Court found that the victim‟s declaration “Dr. Shepard has
poisoned me” was neither admissible as a dying declaration (as the State had argued), nor as
evidence of the victim‟s state of mind. Id. at 103. The defendant attempted to show that the
victim had “exhibited a weariness of life and a readiness to end it,” which gave “plausibility to
the hypothesis of suicide.” Id. The Court stated:
        By the proof of these declarations evincing an unhappy state of mind, the
        defendant opened the door to the offer by the government of declarations evincing
        a different state of mind, declarations consistent with the persistence of a will to
        live. The defendant would have no grievance if the testimony in rebuttal had been
        narrowed to that point. What the government put in evidence, however, was
        something very different. It did not use the declarations by Mrs. Shepard to prove
        her present thoughts and feelings, or even her thoughts and feelings in times past.
        It used the declarations as proof of an act committed by some one else, as
        evidence that she was dying of poison given by her husband.
Id. at 103-04 (emphasis added).
        In the above-mentioned cases, the relevancy of the state of mind statements was shown
through the rebuttal of a defense theory. However, in State v. Radabaugh, this Court did not
expressly condition the admission of state of mind evidence on it being offered to rebut a defense
theory. 93 Idaho 727, 471 P.2d 582 (1970). Instead, the Court stated that “[e]vidence tending to
show the mental state of the victim and ill-feeling or hostility between decedent and defendant is
admissible” and since the statement “I‟m scared to death of him” was “probative of the attitudes
and feelings (fear) of the victim towards [defendant], it was properly admitted.” Radabaugh, 93


4
  While the Idaho Rules of Evidence were not adopted until 1985, the “state of mind” exception existed under
common law rules of evidence used in Idaho in nearly identical form to I.R.E. 803(3); thus, the analysis remains
similar. See Herrick v. Leuzinger, 127 Idaho 293, 301, 900 P.2d 201, 209 (Ct. App. 1995).

                                                       7
Idaho at 731, 471 P.2d at 586. In State v. Goodrich, this Court specified that Radabaugh had
recognized that a state of mind statement may be admissible when the “declarant-victim‟s state
of mind is relevant to an issue involved in the criminal proceedings.” 97 Idaho 472, 477, 546
P.2d 1180, 1185 (1976). Goodrich then laid out the four categories defined above. Thus, when
examining relevancy, we look to whether the fact that the statement was made is relevant to a
legal theory presented by the parties.
        First, to determine whether the statements here were relevant to rebut a defense theory of
suicide, we must determine whether there was a defense theory of suicide. The State asserts that
Shackelford perpetuated his contention that Donna committed suicide during the course of the
investigation and it was his statements that drove the initial investigation. Shackelford argues it
was Ted Meske, not him, who first introduced the idea of suicide into the investigation, and
Shackelford did not use the theory as a defense at trial.
        Shackelford did make statements during the police investigation regarding the possibility
that Donna had committed suicide;5 however, we find that those statements were not sufficient to
allow rebuttal of a defense theory of suicide. The defense did not present a theory of suicide
during the trial itself. Instead, the State offered testimony regarding Shackelford‟s statements
during the initial investigation about suicide, and the defense merely offered testimony to show
that any mention Shackelford made of suicide during the initial investigation did not affect the
investigation in any way. Defense counsel questioned Detective Kurtis Hall who testified that,
although police had been informed that there may be a suicide victim in the fire, the investigators
treated it as a potential homicide:
        A. At that time I didn‟t know if we had a body or not, but it‟s my understanding
           that any death is treated as a potential homicide until it is established—that we
           investigate is treated [sic] as a potential homicide until it is established
           otherwise.

5
  Detective Kurtis Hall testified that when he arrived at the scene of the fire, he was told there may have been a
suicide victim in the fire:
        [Shackelford] told me that Donna had—had a bad time recently that she had had an election go
        against her, that she was up on fraud charges in Missouri that he had raised for the forgery of a
        check and that—I can‟t repeat the exact words, but it was something along the lines of, things are
        crumbling around her right now, she‟s having a hard time . . . . He said that he thought it was
        possible that Donna committed suicide.
Deputy Richard Skiles also testified that Shackelford had mentioned the possibility of there being a suicide victim:
“I asked him what he thought the chances of there actually being a possible suicide in the fire and he said that he
thought it could be good, but he didn‟t want to say because he didn‟t know for sure.”


                                                         8
       Q. And did you treat it that way?

       A. Yes.
The record here shows that Shackelford‟s pre-trial comments did not alter any aspect of the
criminal investigation.   We are not excluding the possibility that a defendant could make
statements during a criminal investigation that would create a theory of defense such that the
State would find it necessary to offer evidence in their case-in-chief or as rebuttal during trial;
however, that has not happened here. Therefore, we hold that the district court erred in allowing
the State to introduce Donna‟s out-of-court statements to show that her state of mind was
inconsistent with a defense theory of suicide.
       Although we find that the district court erred in admitting the out-of-court statements of
Donna, we hold that the error did not affect Shackelford‟s substantial rights. Whether an error
affected substantial rights in a particular case depends upon a host of factors, including the
importance of the witness‟ testimony to the prosecution‟s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or contradicting the testimony of
the witness on material points, the extent of cross-examination otherwise permitted, and the
overall strength of the prosecution‟s case. State v. Hooper, 145 Idaho 139, 146, 176 P.3d 911,
918 (2007). In State v. Garcia, this Court found that, although the court erred in admitting
hearsay testimony that was not based on any of the categories laid out in Brown and Goodrich,
any inference of guilt from the victim‟s hearsay statements was outweighed by the defendant‟s
own inculpatory admission made to the witness. 102 Idaho 378, 383, 630 P.2d 665, 670 (1981).
       Similarly, in this case, any inference of Shackelford‟s guilt that may have stemmed from
Donna‟s out-of-court statements was outweighed by testimony regarding Shackelford‟s own
statements expressing his desire to kill Donna, along with the testimony of his co-conspirators
and the forensic evidence regarding the murders and the arson. First, several witnesses testified
as to statements Shackelford made regarding his desire to kill Donna. Donna‟s friend, Suzanne
Ninichuck, testified as to two conversations she had with Shackelford in the summer of 1997:
       A. [Shackelford] said that Donna was an ugly person and that he was going to
          destroy her. He was going to destroy her financially, he was going to destroy
          her professionally. That he was going to destroy her relationships with every
          friend and every family member and that—he said that she—oh, he said that
          she had abandoned him up on the mountain.
       Q. What mountain?


                                                 9
        A. The mountain by their Idaho property. And that she knew that was the worst
           thing that anybody could do to him was abandon him. And that she
           deserved—she deserved to die. She deserved to be ruined. . . .
             He said that he—he loved her very much. He was—but he couldn‟t live with
             her. And that she—she was a controlling person, she manipulated people.
             That—he said he was going to kill her.
             ....
             And that he—at that point in time he said, he could kill her and make it look
             like an accident. And at that time he was driving a truck and he said he could
             just—he would—he could find her with the truck and kill her with the truck
             and he could make it look like an accident. . . .
             He said if—he said he loved Donna very passionately and there was no other
             woman that he would ever love as much as Donna, but he couldn‟t live with
             her and if he couldn‟t live with her nobody would live with her.
James Avery, Donna‟s son, also testified that in the summer of 1997, he heard Shackelford say
on two occasions that if Shackelford caught Donna with another man he would kill them both.6
        In 1998, Shackelford began a relationship with Martha Millar when the two met while
working as long-haul truckers. Millar testified that Shackelford convinced her that she should
kill Donna for him:
        Q. Ms. Millar, during these months of 1998 when you had this periodic contact
           with [Shackelford], did he tell you that his ex-wife, Donna, made his life
           miserable?
        A. Yes.
        Q. Did he tell you that he had to do away with her?
        A. Yes.
        Q. How many times did he say that?
        A. I would say out of—one out of ten conversations, I would say about six or
           seven times.
        Q.    Alright. Did [Shackelford] tell you that you and he could not have a
              relationship as long as Donna was around?
        A. Yes.


6
  The first time Avery heard Shackelford make such a statement was in Idaho after Donna and Shackelford had an
argument: “My mother and Dale had gotten into another fight. . . . And when I went outside I seen my mom
walking down the road and I walked up by Dale and he was rambling. . . . He said similar things such as I don‟t
know what I‟m going to do. If I catch her with a guy again, I‟m going to kill the mother f---ers.” Avery also
testified that about two weeks after that incident he saw Donna crying on her bed and Shackelford was pacing
outside talking to himself: “And he was saying, I don‟t know what I‟m going to do. If I catch with her [sic] another
man maybe I should just kill them both.”

                                                        10
           ....

       Q. Alright. Did [Shackelford] express to you what would happen in your
          relationship if you did away with Donna Fontaine?
       A. Yes.
       Q. What did he say?
       A. He said that I would be his forever.
       Q. Alright. The—when [Shackelford] was talking to you about taking care of or
          doing away with Donna, what was your understanding of what he meant?
       A. My understanding was that he wanted to put her six feet under.
       Q. Wanted to kill her?
       A. Yes.
After these conversations, Millar spoke to a friend and told her she had come up with an idea in
response to Shackelford‟s request to “take care of Donna”:
       Q. What was your idea?
       A. Oh, my idea was to cut her brake lines, dismantle, excuse me, her fuel line and
          put it near a spark plug so it would burst into flames.
       Q. And did you talk to [Shackelford] about that idea?
       A. Yes, I did.
       Q. Did you and he discuss where he would be when you did this?
       A. He would be far, far away.
       Q. Why?
       A. So that he would have an alibi.
Millar then began working for Shackelford Enterprises in September 1998, and the discussions
about killing Donna continued:
       Q. Alright. And did [Shackelford] talk to you more in August and September
          1998 about Donna Fontaine?
       A. Yes.
       Q. What did he ask you to do?
       A. He asks—he asked me if I could do away with her.
       Q. Alright. And did he tell you what would happen if you did?
       A. He would get me a lawyer and he would get me off.
           ....




                                                 11
       Q. In early October of 1998, did you have discussions with [Shackelford] about
          what you should do in Missouri with regard to Donna?
       A. Yes.
       Q. And what did he ask you to do?
       A. He asked me to shoot her.
           ....

       Q. Can you tell us, as best you can recall, what [Shackelford] said to you during
          that conversation?
       A. [Shackelford] told me that I should take my gun, put it in my fanny pack, go
          down to the courthouse, go directly up to her and shoot her. Empty my gun
          into her and just stand there like a crazy person.
       Q. What did he tell you would happen after you stood there like a crazy person?
       A. Well, the cop—the police were going to tackle me and I would get off on an
          insanity plea, which he would pay for the defense.
       Q. When he told her to shoot her, did he use an analogy?
       A. Shoot her like a dog.
       Q. So then what happened on Monday, October 5th, 2008?
       A. I asked Helen to drop me off in town. . . . She dropped me off by the
          courthouse, I walked up past Donna‟s office on the opposite side. I crossed
          the street and she came walking out of her office.
       Q. Were you wearing your fanny pack?
       A. Oh, yes.
       Q. What was in it?
       A. My gun.
           ....

       Q. Alright. What happened when she came out of her office?
       A. She went to the courthouse. She went into the courthouse, she came back out.
          She went over to the post office. I followed her to the post office. She came
          out of the post office and I walked right past her, fanny pack opened, hand on
          the gun getting ready to pull it out and shoot her, walked right past her.
       Q. Why?
       A. Because I couldn‟t do it.
Millar further testified that in April 1999 Shackelford made a bomb to be used in another attempt
on Donna‟s life:



                                               12
       Q. . . . When [Shackelford] talked to you on the telephone in April of 1999 about
          having made a bomb, what did he tell you?
       A. He had told me that he had made a bomb and that he had asked Bernadette
          Lasater to take the bomb to the Caldonia, Missouri laundromat and she was to
          blow Donna.
       Q. . . . did he tell you whether it worked or not?
       A. He told me it had not.
The conversations between Millar and Shackelford regarding killing Donna continued:
       Q. Alright. During the spring months of 1999, did [Shackelford] make any
          requests of you in regard to having anyone else kill Donna?
       A. Yes.
           ....

       Q. What did he ask you?
       A. He asked me if I knew anybody on the east coast, Connecticut to be exact,
          that‟s where I used to live, who would come out to Missouri and do away
          with Donna.
       Q. What did you tell him?
       A. I told him that I would think about it and that all my phone numbers were
          back at the office.
Finally, before Shackelford left for Idaho in late May 1999, Millar testified that he stated: “I‟m
going to Idaho and do what you couldn‟t do or what I couldn‟t get anybody to do.”
       Bernadette Lasater testified that she met Shackelford in December 1998 and began a
romantic relationship with him in February 1999, at which point he also began talking to her
about having Donna killed:
       Q. As the relationship progressed in March and April of 1999, did [Shackelford]
          make any statements to you more specifically about—about what he wanted
          to happen with regard to his ex-wife?
       A. He said he would want her to be killed because of—as long as she was alive,
          she would continually try to control his life. He would never be able to have
          a happy marriage or be happy, and if she was dead, he can have the happiness
          that he wanted.
           ....

       Q. Okay. And what did he say?
       A. He said in order to prove my love to him that I would have—if I know
          anybody who would want to kill his wife—his ex-wife Donna.
           ....

                                                13
          Before I done anything, we had a discussion, Dale and me and Mary Abitz
          and I believe Marty Millar was present, and there was going to be a
          preliminary hearing in—for Donna and he wanted her to be disposed of before
          then.
           ....
           He mentioned if any of us knew of anything that we could do to eliminate
           Donna and none of us could think of anything. And he came up with the idea
           of an ambush.
       Q. What did he tell you about that?
       A. He said there‟s a huge rock on the way to where Donna‟s cabin was and he
          would hide behind this rock with a shotgun and either I or one of the other
          women would drive my vehicle since she didn‟t know it or recognize it, and
          run her off the road. And after running her off the road into the ditch, he
          would shoot her.
       Q. Did he tell you what he would shoot her with?
       A. A shotgun.
In April 1999, Bernadette Lasater attempted to set off an explosive device that Shackelford
created, at a laundromat in Missouri where Donna and her daughter were doing their laundry:
       Q. Okay. Why did you go to the laundromat?
       A. Dale said that Donna would be there.
          ....

       Q. What was your purpose in going to the laundromat?
       A. To drop off the explosive and to detonate it.
          ....

          I drove back down into the driveway to the laundromat and pulled up by her
          truck.
          ....
          I unzipped the backpack, took out the bomb, and connected the detonator, it‟s
          a 9-volt battery to the side.
          ....
          Got out of my car, went into the laundromat, sat the explosive on a table next
          to a washing machine.
       Q. Did you see anybody in the laundromat?
       A. Yes.
       Q. Who was that?


                                               14
       A. It was Donna and later on I found out it was her daughter, Shanna.
           ....

       Q. What did you do then?
       A. I left the laundromat, got out—got back in my car, pulled out—started up and
          backed up a little ways, went down the driveway and stopped and pulled the
          wire of the remote he wired and pushed the button and nothing happened.
           ....

       Q. So what did you do then?
       A. I tried it again and it still didn‟t happen and I told Dale nothing—I called him
          on the walkie-talkie and said nothing happened. And he said to go on up to
          Ken‟s and turn around and I did and went back to go get the bomb and see if
          the wires came off or anything was wrong with it.
       Q. And did Dale ask you to do that?
       A. Yes.
           ....

       Q. And what did you do after it didn‟t work that [second] time?
       A. I called Dale and told him it didn‟t work and he said don‟t worry about it, just
          to go and get it.
       A friend of Bernadette Lasater, Bobby Emily, also testified that Shackelford had asked
him to kill Donna: “And I told him that I had to do something to make some money. And he
says if you want to make some real money, he says, you can get rid of my wife for me.”
Shackelford also asked Helen Hays, an employee and woman he was having a relationship with,
if she would be willing to kill Donna for him:
       Q. What did he ask you?
       A. He asked me if I would get rid of Donna for him.
       Q. Did he offer to give you anything for that?
       A. He offered me $5,000 to get rid of her.
           ....
           He asked me if I couldn‟t do it, if I knew anybody that might do it.
       Finally, witnesses testified that Shackelford made comments around the time of the
deaths of Donna and Fred indicating that he had committed the murders. PJ Baker, a neighbor to
the Abitzes and friend of Shackelford, testified that the following conversation took place
between he and Shackelford on the evening preceding the murders:

                                                 15
       A. [M]y first comment to him was, why are you driving at night with no lights.
       Q. What was his response?
       A. His response was, I don‟t want anybody to know I‟m here, only Sonja knows.
           ....

       Q. What did he talk about?
       A. I just made mention of—I don‟t know if I said where‟s Donna or how is
          Donna or what, but he said—he looked up at the ceiling and said, Donna is
          no more.
           ....

       Q. Okay. Did he talk to you at all that evening about or use the word alibi?
       A. Uh-huh. Yeah, that‟s right. He came in and wanted an alibi that—for me to
          say that he had had lunch with Katie and myself.
           ....

       Q. Okay. Now, did he talk anything else that was upsetting?
       A. Yes. He said—he asked me the question if I had two bodies to get rid of, how
          would I do it.
Katherine Baker, PJ Baker‟s wife, also testified that, on the day of the fire, Shackelford came to
their house and asked her what they had for lunch, and then stated “don‟t worry, you won‟t be
hurt by any of this.”
       In light of the extensive testimony of the State‟s witnesses, as well as evidence regarding
the times of the deaths, the manner in which the victims were shot, the setting of the fire, and
further testimony regarding Shackelford‟s actions on the day of the deaths, Shackelford has
failed to establish beyond a reasonable doubt that the error associated with the admission of
testimony regarding Donna‟s fear would have changed the outcome of the verdict. Therefore,
we hold that the error was harmless because Shackelford‟s substantial rights were not affected.
       c. The district court erred in admitting Sonja Abitz’s statements, but that error
          was harmless.
       Shackelford next argues that the district court erred in admitting the out-of-court
statements made by Sonja Abitz.       He contends that the court erred in admitting Sonja‟s
statements to Dorothy Cox because, at the time the statements were made, a conspiracy had not
been formed, and because the statements, on their face, were not made in furtherance of the




                                               16
conspiracy. We find that the district court abused its discretion in admitting the testimony
regarding Sonja‟s statements pursuant to I.R.E. 801(d)(2)(E), but that error was harmless.
           Idaho Rule of Evidence 801(d)(2)(E) states: “A statement is not hearsay if—the statement
is offered against a party and is . . . a statement by a co-conspirator of a party during the course
and in furtherance of the conspiracy.” “Statements are considered in furtherance of a conspiracy
when the statements tend to advance or promote the object of the conspiracy, as opposed to
thwarting its purpose.” 29 Am. Jur. 2d Evidence § 856 (2009). The statements “must somehow
advance the objectives of the conspiracy, not merely inform the listener of the declarant's
activities.” United States v. Snider, 720 F.2d 985, 992 (8th Cir. 1983). In State v. Caudill, this
Court held that, where the statements were made after the crime had been committed, the
statements were not made in furtherance of the conspiracy because the co-conspirator was not
“attempting to further conceal the crime or to obstruct justice.” 109 Idaho 222, 226, 706 P.2d
456, 460 (1985).
             During the trial, Dorothy Cox testified that Sonja told her “we‟re going to burn her
house down.”7 Judy Foster also testified that Sonja stated that “she wished that [Donna] would
just leave, that her house would just burn down and she would go back to Missouri.” These
statements in no way advanced or promoted the object of the conspiracy, nor did they attempt to
conceal the crime. Instead, these statements merely informed the listeners that Sonja disliked
Donna and wanted to burn her house down so that Donna would leave Idaho. If anything, these
statements may have thwarted the purpose of the conspiracy because Sonja was announcing to
non-conspirators potentially incriminating evidence. Thus, the district court erred in admitting


7
    The following questioning of Dorothy Cox took place:
      Q. Did she in this period of time that we‟re talking in the spring of 1999 at the bus garage, did she express her
           dislike for Donna Fontaine?
      A. Yes.
      ....
      Q. Okay. And what did Sonja Abitz say to you about Donna Fontaine?
      ....
      A. She told me she was going to burn her house down.
      Q. Okay. Was she angry when she was saying this?
      A. Yes.
      Q. What was her demeanor?
      A. She was angry.
      Q. Did she state at that time why her house was going to be burned down by her?
      A. No.
      Q. Did she—what were the words that you can recall that she said about this?
      A. She said we‟re going to burn her house down.

                                                           17
the out-of-court statements of Sonja Abitz because they were not in furtherance of any
conspiracy.      However, we find such error to be harmless based upon Shackelford‟s own
statements expressing his desire to kill Donna, the testimony of his co-conspirators, and the
forensic evidence concerning the deaths and the arson discussed above. Shackelford failed to
establish beyond a reasonable doubt that the error associated with the admission of the testimony
regarding Sonja‟s statements affected the outcome of the verdict.
        d. The statements of Mary Abitz and Robin Eckmann were properly admitted.
        Shackelford next asserts that the court erred in admitting Mary Abitz‟s statements to law
enforcement officers because the statements were clearly testimonial and thus Shackelford‟s
Sixth Amendment right to confront witnesses against him was violated by their admission.
Shackelford also contends that the admission of the statements of Robin Eckmann violated his
Sixth Amendment rights. The statements at issue were introduced through the testimony of
Sergeant Earl Aston, and revolved around a phone conversation Sergeant Aston had with Mary
Abitz while he was at Shackelford‟s place of business in Missouri.8 We find that the district
court did not abuse its discretion in admitting the testimony regarding statements made by Mary




8
 The following portion of the transcript is relevant to the issues of the admission of the out-of-court statements of
both Mary Abitz and Robin Eckmann:
        Q. Detective Aston, during this phone call with Mary Abitz, was she asked about a tape—the tape?
        A. Yes, she was.
        Q. Okay. And what happens as she‟s asked about the tape, what is the defendant’s demeanor at that
            time?
        A. Are we talking about the first tape she was asked about or the second tape?
        Q. She‟s asked about a tape and what happens to the defendant’s demeanor when she‟s asked about that?
                 The Court: I think the witness has asked you to clarify which tape.
        Q. It‟s the tape as she—who asks her about the tape?
        A. I‟m not sure if it was me or Robin. I believe, it was Robin Eckmann who had asked her about the tape.
        Q. Okay. And what—did Robin ask about which particular tape it was?
        A. I don‟t believe at first. I think she was just asked if she had received a tape or was going to be
            receiving a tape—if she knew she was going to be receiving a tape, I believe was the question.
        Q. Okay. And what did—what did the defendant do at this time?
                 Mr. Baker: Your Honor, I‟d object on the basis of hearsay as to what Robin Eckmann may have
                 said. There‟s not going to be, as I understand, a chance to cross examine Ms. Eckmann.
                 Mr. Christensen: Your Honor, that‟s just a question, it‟s not an assertion.
                 The Court: Overruled.
        Q. What happens to the defendant at this time, what‟s his manner?
        A. Mary started explaining that she had or that Becky had received a tape. And I noticed that Mr.
            Shackelford, to me it appeared, that he was agitated, becoming agitated. He started rocking back in
            his chair and drawing—he was smoking a cigarette at the time and drawing hard on a cigarette. It was
            just a difference in his demeanor at that point and . . . .
(Emphasis added.)

                                                         18
and Eckmann because the statements were non-testimonial in nature and the district court
instructed the jury that the statements were not offered for the truth of the matter asserted.
       When a violation of a constitutional right is asserted, this Court will give deference to the
trial court's factual findings unless those findings are clearly erroneous. State v. Hooper, 145
Idaho 139, 142, 176 P.3d 911, 914 (2007). However, we exercise free review over the trial
court's determination as to whether constitutional requirements have been satisfied in light of the
facts found.    Id.   Whether the admission of Mary‟s and Eckmann‟s statements violated
Shackelford‟s right to confront witnesses under the Sixth Amendment is a question of law over
which the Court exercises free review.
       The Confrontation Clause of the Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” Davis v. Washington, 547 U.S. 813, 821 (2006). Only testimonial statements cause the
declarant to be a “witness” within the meaning of the Confrontation Clause.                 Id.   The
determination of whether evidence is testimonial requires the court to consider the purpose
behind the Confrontation Clause. State v. Hooper, 145 Idaho 139, 143, 176 P.3d 911, 915
(2007). The Supreme Court based its holding in Crawford v. Washington, 541 U.S. 36 (2004),
on the historical underpinnings of the Confrontation Clause, and noted that the Sixth Amendment
must be interpreted with this history in mind:           “First, the principal evil at which the
Confrontation Clause was directed was the civil-law mode of criminal procedure, and
particularly its use of ex parte examinations as evidence against the accused.” Hooper, 145
Idaho at 143, 176 P.3d at 915 (quoting Crawford, 541 U.S. at 50).
       In Hooper, this Court analyzed the guidelines set forth by the Supreme Court in
Crawford in determining what constitutes testimonial statements:
              First, the Court looked to Webster's dictionary definition of “testimony”
       from 1828. Testimony is “[a] solemn declaration or affirmation made for the
       purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51, (quoting
       1 N. Webster, An American Dictionary of the English Language (1828)). The
       Court then listed three formulations of “core” testimonial statements:
               (1) “ex parte in-court testimony or its functional equivalent-that is,
                   material such as affidavits, custodial examinations, prior testimony
                   that the defendant was unable to cross-examine, or similar pretrial
                   statements that declarants would reasonably expect to be used
                   prosecutorially;”



                                                 19
               (2) “extrajudicial statements ... contained in formalized testimonial
                   materials, such as affidavits, depositions, prior testimony, or
                   confessions;” and
               (3) “statements that were made under circumstances which would lead an
                   objective witness reasonably to believe that the statement would be
                   available for use at a later trial.”
        Crawford, 541 U.S. at 51-52, (internal citations omitted). This is not an exclusive
        list of “testimonial” evidence. Rather, these formulations all share a “common
        nucleus” and then define the Clause's coverage at various levels of abstraction
        around it. Id.
Id. at 142-43, 176 P.3d at 914-15. This Court in Hooper then analyzed the factual situations of
both Crawford and Davis, and determined that, under those cases, a statement is testimonial
when:
        [T]he circumstances objectively indicate that the primary purpose of the
        interrogation is to establish or prove past events potentially relevant to later
        criminal prosecution, unless made in the course of police interrogation under
        circumstances objectively indicating the primary purpose of the interrogation is to
        enable police assistance to meet an ongoing emergency.
Id. at 143-44, 176 P.3d at 915-16. This Court also discussed the Supreme Court‟s focus on the
formality of questioning and the extent to which the interview was similar to live testimony. Id.
at 144-45, 176 P.3d at 916-17. In Davis, the Supreme Court stated: “Such statements under
official interrogation are an obvious substitute for live testimony, because they do precisely what
a witness does on direct examination; they are inherently testimonial.”        547 U.S. 813, 830
(2006). Taking such factors into account, this Court employs a totality of the circumstances
analysis to determine whether statements are testimonial in nature. Hooper, 145 Idaho at 145,
176 P.3d at 917.
        Looking at the totality of the circumstances here, it is apparent that the statements were
non-testimonial in nature. Shackelford told Sergeant Aston that Martha Millar had taped an
argument between Shackelford and Bernadette Lasater and mailed the tape to Mary Abitz. Mary
then called Shackelford, and he put her on speaker phone in the room he was sitting in with
Sergeant Aston. Mary‟s statements themselves were not offered for the purpose of establishing
or proving some fact. Nor was the primary purpose of the questioning to establish or prove past
events. Instead, Sergeant Aston‟s testimony focused on Shackelford‟s demeanor during the
conversation. Therefore, we find that the district court did not err in admitting the out-of-court
statements of Mary Abitz.


                                                20
          The district court also overruled defense counsel‟s objection to the introduction of Robin
Eckmann‟s out-of-court statements during Sergeant Aston‟s testimony regarding the
conversation with Mary about the tape. We agree with the State that the statements were offered
merely to provide context to Mary‟s answer.
      2. Jury instructions
          Shackelford argues that the district court erred in giving, or failing to give, certain jury
instructions, which served to lessen the State‟s burden of proof and permitted less than
unanimous verdicts.           The State contends that, reading the jury instructions as a whole,
Shackelford has failed to establish that the instructions given by the district court violated his
constitutional rights.
          a. Standard of Review
          “Whether jury instructions fairly and adequately present the issues and state the
applicable law is a question of law over which this Court exercises free review.” State v.
Humpherys, 134 Idaho 657, 659, 8 P.3d 652, 654 (2000). Therefore, the correctness of a jury
instruction depends on whether there is evidence at trial to support the instruction.                        Craig
Johnson Constr., L.L.C. v. Floyd Town Architects, P.A., 142 Idaho 797, 800, 134 P.3d 648, 651
(2006). We look at the jury instructions as a whole, not individually, to determine whether the
jury was properly and adequately instructed. Obendorf v. Terra Hug Spray Co., 145 Idaho 892,
896, 188 P.3d 834, 838 (2008). An erroneous instruction will not constitute reversible error
unless the instructions as a whole misled the jury or prejudiced a party. Kuhn v. Proctor, 141
Idaho 459, 462, 111 P.3d 144, 147 (2005).
          b. The district court did not err in refusing to give a Holder instruction.
          Shackelford first argues that the district court‟s failure to give a Holder instruction to the
jury constitutes reversible error because Shackelford should have been allowed an instruction
that correctly defined the proper use of circumstantial evidence, as the State‟s case was based
entirely on circumstantial evidence. He contends that the court‟s refusal to give the jury a
Holder instruction violated the Ex Post Facto and Due Process Clauses of the Idaho and United
States Constitutions. 9


9
    In Marks v. United States, 430 U.S. 188, 191-92 (1977), the United States Supreme Court stated:
          The Ex Post Facto Clause is a limitation upon the powers of the Legislature, and does not of its
          own force apply to the Judicial Branch of government. But the principle on which the Clause is

                                                         21
        In State v. Holder, 100 Idaho 129, 132, 594 P.2d 639, 642 (1979), this Court held that
when the prosecution‟s evidence is entirely circumstantial, the defendant is entitled to a special
instruction limiting the effects of the evidence. The instruction that was requested in that case,
and that the Court found to be a proper statement of the law was as follows:
        You are not permitted to find the defendant guilty of the crime charged against
        him based on circumstantial evidence unless the proved circumstances are not
        only consistent with the theory that the defendant is guilty of the crime, but
        cannot be reconciled with any other rational conclusion and each fact which is
        essential to complete a set of circumstances necessary to establish the defendant‟s
        guilt has been proved beyond a reasonable doubt.
Id. This Court‟s holding in Holder led to the rule that “in cases where guilt is proven by
circumstantial evidence, that evidence must be sufficient to exclude every reasonable hypothesis
other than the guilt of the defendant.” State v. Humpherys, 134 Idaho 657, 660, 8 P.3d 652, 655
(2000) (quoting State v. Randles, 117 Idaho 344, 350, 787 P.2d 1152, 1158 (1990)). The basis
for the Court‟s holding in Holder was the concern that circumstantial evidence was inherently
unreliable and could be the basis for convicting an innocent defendant. Humpherys, 134 Idaho at
660, 8 P.3d at 655.
        However, in Humpherys, this Court overruled Holder and held that “once the jury has
been properly instructed on the reasonable doubt standard of proof, the defendant is not entitled
to an additional instruction on circumstantial evidence even when all the evidence is
circumstantial.” 134 Idaho at 661-62, 8 P.3d at 656-57. The Court cited to a Supreme Court of
West Virginia case in support of having only one standard of proof in criminal cases:
        Circumstantial evidence and direct evidence inherently possess the same
        probative value. In some instances certain facts can only be established by
        circumstantial evidence. Hence, we can discern no reason to continue the
        requirement that circumstantial evidence must be irreconcilable with any
        reasonable theory of an accused's innocence in order to support a finding of guilt.
        We agree with those courts that have held that an additional instruction on the
        sufficiency of circumstantial evidence invites confusion and is unwarranted. Since
        circumstantial evidence and direct evidence are indistinguishable so far as the
        jury's fact-finding function is concerned, all that is required of the jury is that it
        weigh all of the evidence, direct and circumstantial, against the standard of proof
        beyond a reasonable doubt. Nothing more should be required of a factfinder.


         based the notion that persons have a right to fair warning of that conduct which will give rise to
         criminal penalties is fundamental to our concept of constitutional liberty. As such, that right is
         protected against judicial action by the Due Process Clause of the Fifth Amendment.
(Citations omitted).

                                                        22
Id. at 661, 8 P.3d at 656 (quoting State v. Guthrie, 461 S.E.2d 163, 175 (W.Va. 1995)).
Therefore, Idaho law no longer recognizes a distinction between direct and circumstantial
evidence for the purposes of jury instructions.
         The district court based its denial of Shackelford‟s request for a Holder instruction on this
Court‟s decision in Humpherys.         Shackelford argues that the district court‟s reliance on
Humpherys violated his constitutional rights by applying an ex post facto law. Ex post facto laws
are prohibited by article I, section 9, clause 3 of the United States Constitution and by article I,
section 16 of the Idaho Constitution. The ex post facto prohibition forbids Congress and the
States from enacting any law “which imposes a punishment for an act which was not punishable
at the time it was committed; or imposes additional punishment to that then prescribed.” Weaver
v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71 U.S. 277, 325-26 (1866)).
In accordance with these purposes, two critical elements must be present for a criminal or penal
law to be ex post facto: (1) it must be retrospective, that is, it must apply to events occurring
before its enactment, and (2) it must disadvantage the offender affected by it. Weaver, 450 U.S.
at 29.
         However, if the change is merely procedural, “and does „not increase the punishment nor
change the ingredients of the offense or the ultimate facts necessary to establish guilt,‟” there is
no ex post facto violation. Id. at 29 n.12 (quoting Hopt v. Utah, 110 U.S. 574, 590 (1884)).
“[T]he constitutional provision was intended to secure substantial personal rights against
arbitrary and oppressive legislation and not to limit the legislative control of remedies and modes
of procedure which do not affect matters of substance.” Beazell v. Ohio, 269 U.S. 167, 171
(1925). The Supreme Court in Collins v. Youngblood stated that “procedural” can be thought to
refer to “changes in the procedures by which a criminal case is adjudicated, as opposed to
changes in the substantive law of crimes.” 497 U.S. 37, 45 (1990).
         We find that the district court did not err in refusing to give a Holder instruction here
because the change was procedural. Humpherys did not change the “substantive law of crimes”
but instead recognized that direct and circumstantial evidence possess the same probative value
and thus the reasonable doubt standard is applicable to both. It simply clarified that one standard
of proof applies to all types of evidence. Shackelford did not have to present any more or any
less evidence because the jury would be giving the same weight to the evidence. In addition,
counsel for Shackelford did not object to the language in Jury Instruction 4 which stated “[t]he


                                                  23
law makes no distinction between direct and circumstantial evidence as to the degree of proof
required. . . .” Therefore, we find that the district court did not err in failing to give the Holder
instruction.
          c. The jury instructions on the conspiracy counts were proper.
          Shackelford asserts that the jury instructions on the conspiracy counts are ambiguous and
thus permitted the jury to return a non-unanimous verdict on proof less than beyond a reasonable
doubt, violating his right to due process. The State contends that, because Shackelford was
found guilty of the underlying offenses of first-degree murder and first-degree arson, which were
both alleged as overt acts, the jury necessarily unanimously found at least one overt act sufficient
to establish the conspiracy counts.        In the alternative, the State argues that a unanimity
instruction was not necessary.
          In all felony cases, the jury‟s verdict must be unanimous; however, a specific unanimity
instruction is not always necessary. State v. Johnson, 145 Idaho 970, 977, 188 P.3d 912, 919
(2008); Idaho Const. art. I, § 8. In Johnson, the appellant relied on a line of cases from the Idaho
Court of Appeals that hold that “[a] specific unanimity instruction is required . . . when it appears
. . . that a conviction may occur as the result of different jurors concluding that the defendant
committed different acts.” Id. (quoting State v. Gain, 140 Idaho 170, 172, 90 P.3d 920, 922 (Ct.
App. 2004)). The Court found those cases to not be applicable, however, because in Johnson
there was not “evidence of more criminal acts than have been charged.” Johnson, 145 Idaho at
977, 188 P.3d at 919 (quoting State v. Montoya, 140 Idaho 160, 167, 90 P.3d 910, 917 (Ct. App.
2004)).
          Johnson also cited to Schad v. Arizona, 501 U.S. 624 (1991), a United States Supreme
Court opinion that found that a specific unanimity instruction was not necessary. The district
court in Schad instructed the jury that “[f]irst degree murder is murder which is the result of
premeditation.... Murder which is committed in the attempt to commit robbery is also first degree
murder.” Id. at 629. The defendant in Schad challenged his first-degree murder conviction,
arguing that the jury was not instructed to unanimously agree on the alternative theories of
premeditated and felony murder. Id. at 630. The Supreme Court plurality found the following:
          Petitioner's jury was unanimous in deciding that the State had proved what, under
          state law, it had to prove: that petitioner murdered either with premeditation or in
          the course of committing a robbery. . . . We have never suggested that in returning
          general verdicts in such cases the jurors should be required to agree upon a single


                                                  24
       means of commission, any more than the indictments were required to specify one
       alone. In these cases, as in litigation generally, “different jurors may be
       persuaded by different pieces of evidence, even when they agree upon the bottom
       line. Plainly there is no general requirement that the jury reach agreement on the
       preliminary factual issues which underlie the verdict.”
Id. at 630-32 (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J.,
concurring)). The primary concern is that the defendant understands “with some specificity the
legal basis of the charge against him.” Schad, 501 U.S. at 632-33.
       Here we find that the jury instructions were proper because unanimity as to each of the
preliminary factual issues was not necessary. The jury instruction on conspiracy to commit first-
degree murder stated:
       In order for the defendant to be guilty of Conspiracy to Commit First Degree
       Murder in Count IV, the state must prove each of the following:
                        1. On or about 25th to 29th days of May, 1999
                        2. In the state of Idaho, County of Latah
                        3. the defendant, Dale Carter Shackelford, and Mary Margaret
                           Abitz and Sonja Marie Abitz agreed
                        4. to commit the crime of Murder in the First Degree
                        5. the defendant intended that the crime would be committed
                        6. one of the parties to the agreement performed at least one of
                           the following acts:
                           A. Dale Carter Shackelford threatened to kill Donna Fontaine.
                           B. Dale Carter Shackelford hid his presence from Donna
                              Fontaine, Gary Fontaine, and Ted Meske.
                           C. Dale Carter Shackelford went to Donna Fontaine‟s
                              residence at 2168 Three Bear Road.
                           D. Dale Carter Shackelford shot Donna Fontaine with a
                              shotgun and pistol, killing her.
                        7. Such act was done for the purpose of carrying out the
                           agreement.
       If any of the above has not been proven beyond a reasonable doubt, then you must
       find the defendant not guilty. If each of the above has been proven beyond a
       reasonable doubt, you must find the defendant guilty.
Second, the district court gave the instruction explaining the elements for conspiracy to commit
first-degree arson as follows:




                                                25
       In order for the defendant to be guilty of Conspiracy to Commit Arson in the First
       Degree in Count V, the state must prove each of the following:
                       1. On or about the 25th to 29th days of May, 1999
                       2. in the county of Latah
                       3. in the state of Idaho
                       4. the defendant, Dale Carter Shackelford, and Mary Margaret
                          Abitz and Sonja Marie Abitz agreed
                       5. to commit the crime of Arson in the First Degree (as explained
                          in instructions No. 19 and No. 20)
                       6. the defendant intended that the crime would be committed
                       7. one of the parties to the agreement performed at least one of
                          the following acts:
                           A.   Dale Carter Shackelford hid his presence from Donna
                                Fontaine, Gary Fontaine, and Ted Meske;
                           B.   Dale Carter Shackelford went to Donna Fontaine‟s
                                residence at 2168 Three Bear Road;
                           C.   Dale Carter Shackelford poured flammable liquid in the
                                garage at that location;
                           D.   Dale Carter Shackelford lit fires in both stories of the
                                garage
                       8. such act was done for the purpose of carrying out the
                          agreement.
       If any of the above has not been proven beyond a reasonable doubt, then you must
       find the defendant not guilty of Conspiracy to Commit Arson in the First Degree.
       If each of the above has been proven beyond a reasonable doubt, you must find
       the defendant guilty of Conspiracy to Commit Arson in the First Degree.
The jurors were also generally instructed that they were to return unanimous verdicts: “In this
case, your verdicts must be unanimous. . . . Your verdicts in this case cannot be arrived at by
chance, by lot, or by compromise.”
       It is the section of each instruction that requires the jury to find “one of the parties to the
agreement performed at least one of the following acts” that Shackelford contends violated his
right to due process by not requiring the jury make a unanimous finding. However, under Schad
and Johnson, such a finding was not necessary. The jurors here agreed upon the “bottom line”:
One of the parties performed at least one of the acts, and it was not necessary for the jury to
reach unanimity on the underlying factual issues, so long as they unanimously decided on the
verdict. Therefore, the jury instructions did not violate Shackelford‟s right to due process.

                                                  26
        d. The jury instructions on arson were proper.
        Shackelford asserts that Jury Instructions 18 and 19 were ambiguous and misled and
confused the jury, as evidenced in the jury‟s note to the judge, and the failure to correct this
ambiguity resulted in a verdict that was not based upon proof beyond a reasonable doubt of the
crime of arson as charged in Count III of the Indictment. The State argues that Shackelford
failed to establish jury confusion regarding the elements of first-degree arson and that, because
Instruction 19 generally followed the elements of I.C. § 18-801 and 802, Shackelford has failed
to establish error.
        Idaho Code § 18-801 offers definitions for the crime of arson, such as “damage” and
“dwelling.” Idaho Code § 18-802 provides that “[a]ny person who willfully and unlawfully, by
fire or explosion, damages: (1) Any dwelling, whether occupied or not . . . is guilty of arson in
the first degree.” Instruction 18 given by the district court reads:
        The Defendant, DALE CARTER SHACKELFORD, in COUNT III is charged
        with the crime of ARSON IN THE FIRST DEGREE alleged to have been
        committed as follows:
                                            COUNT III
        That the Defendant, DALE CARTER SHACKELFORD, on or about the 29th day
        of May, 1999, in the County of Latah, State of Idaho, did willfully and
        unlawfully, by fire or explosion, damage a dwelling, to-wit: a garage with upstairs
        living quarters located at 2168 Three Bear Road, by pouring a flammable liquid in
        the building and lighting a fire on both stories.
        To such charge the Defendant has pleaded not guilty.
Instruction 19 reads:
        In order for the defendant to be guilty of Arson in the First Degree, the State must
        prove each of the following:
                        1. On or about the 29th day of May, 1999
                        2. in the county of Latah
                        3. state of Idaho
                        4. the defendant, Dale Carter Shackelford, willfully
                        5. by fire or explosion
                        6. damaged
                        7. a dwelling, whether occupied or not.
        If you find any of the above have not been proven beyond a reasonable doubt, you
        must find the defendant not guilty. If each of the above has been proven beyond a


                                                  27
       reasonable doubt, you must decide the defendant is guilty of Arson in the First
       Degree.
The instruction further provided definitions, and Instruction 20 advised the jurors of the
distinction between first and second degree arson.       Instructions 25 and 26 dealt with the
conspiracy to commit arson charges.
       The district court received the following question from the jury: “Regarding instruction
number 25, 26 number 18, clarification: Must it be determined that the fire was lit on both stories
before it can be determined arson? Or that the defendant can be found guilty of arson as in
number 18?” After conferencing with the parties, the court responded:
       Ladies and gentlemen, instructions numbered 18 and 25 state the charges of arson
       in the first degree and conspiracy to commit arson in the first degree, which are
       contained in the indictment.
       Instructions 19 and 26 contain the elements that are necessary for the State to
       prove beyond a reasonable doubt for the defendant to be found guilty of arson in
       the first degree and conspiracy to commit arson in the first degree. You will need
       to review the elements instructions, instruction numbers 19 and 26, to determine
       the answer to your questions.
We find the jury instructions were not misleading and the court did not err in thus instructing the
jury. Jury Instruction 19 stated the applicable law as found in I.C. § 18-802 and there was
evidence at trial to support the instructions. Thus, the instructions were proper as they did not
mislead the jury or prejudice Shackelford.
       e. The district court did not err in instructing the jury regarding accomplice
          liability.
       Shackelford asserts that the district court erred in reading Instruction 33 to the jury,
setting forth a theory of accomplice liability, because there was no language charging
Shackelford with aiding and abetting in the Indictment and thus there was nothing to put
Shackelford on notice to prepare a defense to these charges. He also argues that the instruction
was ambiguous because none of the instructions regarding his participation in the murders of
Donna and Fred, the arson, or the preparing of false evidence directed the jury to find that he had
aided and abetted any of the crimes. The State counters that Instruction 33 was proper because
Idaho has abolished all distinctions between principals and aiders and abetters.
       Idaho Code § 19-1430 provides:
       Distinction between accessories and principals abolished—The distinction
       between an accessory before the fact and a principal and between principals in the
       first and second degree, in cases of felony, is abrogated; and all persons

                                                28
       concerned in the commission of a felony, whether they directly commit the act
       constituting the offense, or aid and abet in its commission, though not present,
       shall hereafter be prosecuted, tried, and punished as principals, and no other facts
       need be alleged in any indictment against such an accessory than are required in
       an indictment against his principal.
Thus, Idaho, consistent with many other jurisdictions, has abolished the distinction between
principals and aiders and abettors, and instead treats aiding and abetting as a theory under which
first-degree murder can be proved—not as a separate offense or a crime of a different nature.
State v. Johnson, 145 Idaho 970, 973, 188 P.3d 912, 915 (2008). In Johnson, this Court found
that “it is unnecessary to instruct the jury that it must be unanimous as to the theoretical basis for
committing the offense (aider and abettor or principal) because aiding and abetting is not a
separate offense from the substantive crime.” Id. at 978, 188 P.3d at 920.
       Instruction 33 states:
       The law makes no distinction between a person who directly participates in the
       acts constituting a crime and a person who, either before or during its
       commission, intentionally aids, assists, facilitates, promotes, encourages,
       counsels, solicits, invites, helps or hires another to commit a crime with intent to
       promote or assist in its commission. Both can be found guilty of the crime. Mere
       presence at, acquiescence in, or silent consent to, the planning or commission of a
       crime is not sufficient to make one an accomplice.
We find that this instruction stated the applicable law as laid out in I.C. § 19-1430 and Johnson.
The instruction did not mislead the jury or fail to put Shackelford on notice of the charge because
I.C. § 19-1430 allows an aider and abetter to be charged as a principal and “no other facts need
be alleged in any indictment” because the distinction between the two is abrogated.
       f. The jury instruction on preparing false evidence was proper.
       Shackelford next contends that Instruction 30 is ambiguous because the word “produced”
is never defined, which makes it impossible to know whether the jury agreed that produced
meant to actually make the tape or whether it meant to give the tape to someone or bring it to
someone‟s attention.     The State contends that the instruction was not ambiguous because
“produced” is a term of common usage that did not need further definition and because
Shackelford failed to support the claim with any citation to authority.
       Instruction 30 reads:
       In order for the defendant to be guilty of Preparing False Evidence, the State must
       prove each of the following:
               1. During a period of time between August, 1999, and January 24, 2000


                                                 29
               2. in the state of Idaho
               3. the defendant, Dale Carter Shackelford, willfully prepared false
               evidence
               4. with the intent to produce it, or allow it to be produced, for any
               fraudulent or deceitful purpose, as genuine or true
               5 at a grand jury proceeding in Latah County which was authorized by
               law.
       If you find any of the above have not been proven beyond a reasonable doubt, you
       must find the defendant not guilty of Preparing False Evidence. If each of the
       above has been proven beyond a reasonable doubt, you must find the defendant is
       guilty of Preparing False Evidence.
We find that the term “produced” was not ambiguous in the jury instruction. The jury instruction
itself answers the question of what the term “produced” meant because it provides that the
evidence was produced “at a grand jury proceeding.”             Thus, Shackelford‟s argument that
“produced” may have meant actually making the tape or giving the tape to someone or bringing
it to someone‟s attention is invalid because the evidence had to be produced as genuine or true at
the actual grand jury proceeding. There is nothing ambiguous about the jury instruction when
read in its entirety. Therefore, we find that the jury was properly and adequately instructed.
   3. Post-Conviction Issues
       Shackelford raises a number of post-conviction issues dealing with the effectiveness of
his counsel during the guilt phase of his trial, as well as a Brady claim. He maintains that the
district court erred in summarily dismissing his claims that he was deprived the right to counsel
of choice, and that his counsel was ineffective due to lack of qualifications, in impeaching
State‟s witnesses, and in preparing defense expert witnesses.
       a. Standard of Review
       An application for post-conviction relief under the Uniform Post Conviction Procedure
Act (UPCPA) is civil in nature. Workman v. State, 144 Idaho 518, 522, 164 P.3d 798, 802
(2007). The applicant for post-conviction relief must prove by a preponderance of evidence the
allegations upon which the application for post-conviction relief is based. Id. Unlike the
complaint in an ordinary civil action, however, an application for post-conviction relief must
contain more than “a short and plain statement of the claim” that would suffice for a complaint
under I.R.C.P. 8(a)(1). Id. Rather, an application for post-conviction relief must be verified with
respect to facts within the personal knowledge of the applicant. Id. “The application must


                                                 30
present or be accompanied by admissible evidence supporting its allegations, or the application
will be subject to dismissal.” State v. Payne, 146 Idaho 548, 561, 199 P.3d 123, 136 (2008); see
also I.C. § 19-4903.
          b. The district court did not err in denying Shackelford’s Brady claim.
          Shackelford asserts that the State failed to disclose material that would have undermined
the testimony of Dr. Robert Cihak in the form of peer review notes provided by Dr. John
Howard. The State contends that Shackelford failed to establish that the State was required to
disclose Dr. Howard‟s notes or that the notes would have resulted in a different verdict.
          The United States Supreme Court held in Brady v. Maryland, 373 U.S. 83, 87 (1963),
that the suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution. Subsequent to Brady, the Supreme Court expanded
the duty to include volunteering exculpatory evidence never requested, or requested only in a
general way. United States v. Bagley, 473 U.S. 667, 682 (1985). However, the prosecution need
volunteer evidence only when suppression of the evidence would be “of sufficient significance to
result in the denial of the defendant‟s right to a fair trial.” United States v. Agurs, 427 U.S. 97,
108 (1976). Showing that the prosecution knew of an item of favorable evidence unknown to the
defense does not amount to a Brady violation, without more. Kyles v. Whitley, 514 U.S 419, 437
(1995).
          To prove a Brady violation, three components must be shown: “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 (1999). Thus, a new
trial is not automatically required whenever “„a combing of the prosecutors‟ files after the trial
has disclosed evidence possibly useful to the defense but not likely to have changed the verdict .
. . .” Giglio v. United States, 405 U.S. 150, 154 (1972). Instead, the Supreme Court has held that
regardless of request, favorable evidence is material, and constitutional error results from its
suppression by the government, “if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceedings would have been different.” Kyles, 514
U.S at 433 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). A “reasonable
probability” of a different result is accordingly shown when the government‟s evidentiary


                                                 31
suppression “undermines confidence in the outcome of the trial.”         Kyles, 514 U.S. at 434
(quoting Bagley, 473 U.S. at 678).
        Dr. Cihak testified regarding his “guesstimate” that, based on his examination of the
contents of Fred‟s stomach, Fred had eaten “probably several hours before he—within several
hours of his death.” There are many factors that affect digestion, and Dr. Cihak offered that “one
can never be exact because one doesn‟t know at the time of autopsy what was going on
necessarily from the time that victim has eaten.” He also explained that determining how long
contents had been in the stomach was “a very controversial area. And there are people that feel
some factors either speed or delay, and other people will take the opposite. This is a very, let us
say, not scientifically identified area.” Dr. Cihak also testified that his findings had been “peer
review[ed].”    In his post-conviction claims, Shackelford contended that the State withheld
exculpatory evidence by failing to disclose the peer review notes of Dr. John Howard. However,
as the district court found below, Shackelford was provided with the notes of Dr. Howard but
was not provided with the abstracts that accompanied the notes, which consisted of several
scientific articles questioning the validity of determining a victim‟s time of death based upon
stomach content. As the court pointed out, the abstracts came from medical journals that were
generally available and did not contradict Dr. Cihak‟s testimony that he could offer only a
“guesstimate” of the time of death.
        On appeal, Shackelford‟s only statement regarding the notes of Dr. Howard is as follows:
“The State failed to disclose material which would have undermined the testimony of Dr. Cihak.
This evidence consists of peer review notes provided by Dr. John Howard concerning Dr.
Cihak‟s „guesstimate‟ of the time of death based on stomach contents.” Shackelford argues
nothing about how the abstracts or the notes would have undermined the testimony, nor how he
was prejudiced by any failure to disclose the notes. Furthermore, we find that there was no
prejudice because Dr. Cihak himself testified that determining time of death based on stomach
contents was a “controversial” and “not scientifically identified” area. We find that the district
court did not err in denying Shackelford‟s Brady claim because he has not shown the reasonable
probability of a different result.
        c. Shackelford was not deprived of his right to counsel of choice.
        Shackelford argues that because the Latah County Sheriff‟s Department seized nearly
$5,000 in cash from him, he could not afford to hire a lawyer. He contends in his brief on appeal


                                                32
that he solicited at least four private criminal defense lawyers for representation, including James
Siebe, and testified that the $5,000 could have covered the expense of hiring an attorney for his
initial appearance. Shackelford asserts that the failure to allow him to choose his own counsel
violates his qualified right to choice of counsel and constitutes prejudicial error per se.
       The State maintains that Shackelford failed to establish that $5,000 would have retained
an attorney to represent him in a capital double murder case and therefore this claim fails. The
State also argues that Shackelford has not challenged the district court‟s findings, particularly
with regard to his “evasiveness,” and that the $5,000 would have been insufficient to do more
than retain counsel for the “initial proceedings.” In addition, Shackelford presented no evidence
that he had assets close to the $500,000 trial counsel were paid to represent Shackelford.
       The Sixth Amendment guarantees defendants in criminal cases the right to adequate
representation and to a qualified right to choice of counsel, but “those who do not have the
means to hire their own lawyers have no cognizable complaint so long as they are adequately
represented by attorneys appointed by the courts.” Caplin & Drysdale, Chartered v. U.S., 491
U.S. 617, 624 (1989). “[A] defendant may not insist on representation by an attorney he cannot
afford.” Id. (quoting Wheat v. United States, 486 U.S. 153, 159 (1988)). However, where the
right to choice of counsel is wrongly denied by a court, it is unnecessary to conduct an
ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. U.S. v. Gonzalez-
Lopez, 548 U.S 140, 148 (2006). Instead, “[d]eprivation of the right is „complete‟ when the
defendant is erroneously prevented from being represented by the lawyer he wants, regardless of
the quality of the representation he received.” Id.
       We find that the district court did not err in appointing counsel to represent Shackelford
because Shackelford did not demonstrate that he had the means to hire his own lawyer, nor did
he ever request specific counsel of choice. During Shackelford‟s initial appearance on February
14, 2000, the court asked Shackelford if he would like to be considered for appointment of
counsel at the public‟s expense, to which Shackelford replied that he would. The court then gave
Shackelford a form to fill out regarding his financial ability. Shackelford repeatedly avoided




                                                  33
filling out the form, arguing that he did not have the information he needed to fill it out. He did
receive a letter from James Siebe on March 7, 2000,10 which stated:
        I am very much disturbed about the manner in which the prosecutor has deprived
        you of your assets when it came time for hiring a lawyer; notwithstanding the
        potential for succeeding in your lawsuit (which may very well take as much as
        those funds are worth) and trying to obtain a release of the same, it does not
        appear that the sum total of those amounts would be sufficient to hire an attorney
        for representation in a capital murder case. On the other hand, had you had this
        money available to you at the time of your arrest I am not so certain I would not
        have been able to take the case had I a belief that the court would appoint a
        second chair counsel to assist me in that endeavor.
However, it is unclear if the “assets” Mr. Siebe is referring to is the $5,000 or a different amount
that he had been offered by Shackelford, and his statement that he may have been able to take the
case was dependant on the court‟s appointment of a co-counsel. Furthermore, he stated that the
money available would not have been enough to hire an attorney for representation. This is
consistent with Shackelford‟s own statement during his initial appearance: “So, again, I have
talked with counsel James Siebe and a Mr. Walker, both which have described to me that a case
of this magnitude is going to take at least $100,000. I can just about guarantee I don‟t have that
much in my canteen account, Your Honor.”
        The district court made the following findings and conclusions on this issue:
        The Petitioner was given several opportunities during the early stages of his case
        to show he had the wherewithal to hire an attorney during his criminal
        proceedings. He was unable to do so. He also engaged in evasiveness to a degree
        never before or since witnessed by this Court. The Petitioner has not, and cannot,
        allege that the $5,000 seized would have been sufficient to finance his defense to
        capital murder. Such a claim is absurd. The Petitioner‟s trial counsel, . . . were
        jointly paid over $500,000 to represent the Petitioner through his sentencing.
        Arguing that $5,000, one-hundredth of the amount spent, would have been
        sufficient to secure representation on a case of this magnitude is ludicrous. The
        Petitioner was not deprived of the right to counsel of his choice.
We agree, and find that Shackelford was not deprived of his right to counsel of choice.
        d. Shackelford was not deprived of effective assistance of counsel.
        Claims for ineffective assistance of counsel are reviewed utilizing the two-prong test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). See Mitchell v. State, 132 Idaho 274,


10
    The appointment of counsel occurred on February 15, 2000, and this letter from March 7, 2000, was submitted
during Shackelford‟s post-conviction proceedings as evidence on this issue. Therefore, there is no evidence that the
letter was presented during the pre-trial proceedings as part of an effort on Shackelford‟s part to choose counsel.

                                                        34
277, 971 P.2d 727, 730 (1998). To prevail on such a claim, the applicant for post-conviction
relief must demonstrate (1) counsel‟s performance fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel‟s errors, the result
would have been different. Strickland, 466 U.S. at 687-88, 692; Mitchell, 132 Idaho at 277, 971
P.2d at 730. When evaluating an ineffective assistance of counsel claim, this Court does not
second-guess strategic and tactical decisions, and such decisions cannot serve as a basis for post-
conviction relief unless the decision is shown to have resulted from inadequate preparation,
ignorance of the relevant law, or other shortcomings capable of objective review. Pratt v. State,
134 Idaho 581, 584, 6 P.3d 831, 834 (2000).
       “There is a „strong presumption that counsel‟s performance fell within the wide range of
professional assistance.‟” State v. Hairston, 133 Idaho 496, 511, 988 P.2d 1170, 1185 (1999)
(quoting Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988)). “The benchmark
for judging any claim of ineffectiveness must be whether counsel‟s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as having produced
a just result.” Strickland, 466 U.S. at 686. The burden is on the defendant to show a “reasonable
probability” that the result would have been different. Wong v. Belmontes, 130 S.Ct. 383, 390
(2009). A court need not determine whether counsel‟s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies: “If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697; see also
Belmontes,130 S.Ct. at 386.
         The State argues that Shackelford has failed to support his claims of ineffective
assistance of counsel with any authority or argument; thus, they are waived. While Shackelford
has cited to very little authority in support of his arguments, we will still address each of his
arguments.
          i. Deprivation of effective assistance of counsel due to lack of qualifications
       Shackelford first contends that his right to effective assistance of counsel was violated
because Ray Barker was not on the Idaho Supreme Court roster of attorneys qualified for
appointment as lead counsel in death penalty cases pursuant to Idaho Criminal Rule 44.3. The
State counters that the district court held a hearing regarding Barker‟s qualifications and




                                                35
expressly noted that I.C.R. 44.3 had been suspended,11 which Shackelford did not dispute. In
addition, the court found “Mr. Barker qualifies by experience to be lead counsel,” as permitted
under I.C.R. 44.3(8).12
        However, I.C.R. 44.3(8) did not exist until the rule was amended and became effective
March 15, 2001. Instead, when Shackelford was appointed counsel, the rule existed in a form
very similar to what it is today, just without sub-section 8. See I.C.R. 44.3 (2000). In State v.
Hairston, 133 Idaho 496, 988 P.2d 1170 (1999), this Court addressed qualifications of counsel in
capital cases without relying on I.C.R. 44.3. In Hairston, the defendant alleged ineffective
assistance of counsel because neither of his attorneys representing him had any prior trial
experience in capital cases. Hairston, 133 Idaho at 511, 988 P.2d at 1185. The Court found his
argument unpersuasive and stated: “Counsel was not ineffective solely because of inexperience
in capital trials. The constitution does not establish a minimum level of experience for the
appointment of counsel in a death penalty case.” Id.
        While I.C.R. 44.3 was in effect at the time Shackelford was appointed counsel on
February 15, 2000, Shackelford has failed to demonstrate how the appointment of counsel not
listed on the Idaho Supreme Court roster pursuant to the rule automatically resulted in ineffective
assistance of counsel. He simply argues that Mr. Barker was not on the roster and his lack of
qualifications contributed to violations of Shackelford‟s right to effective assistance of counsel.
The district court evaluated Mr. Barker‟s qualifications and expressly found that he was qualified
based upon the standards for qualification laid out in I.C.R. 44.3:
        I do make a finding that even though Rule 44.3 has been suspended by the Idaho
        Supreme Court that Mr. Barker qualifies by experience to be lead counsel. I also
        make a finding that Mr. Mahaffy qualifies as co-counsel under the rule that has
        been suspended. And I do conclude that Mr. Barker and Mr. Mahaffy provide
        adequate representation for Mr. Shackelford in a capital case.




11
   However, the history of the rule shows that it was amended and effective as of February 15, 2000, when counsel
was appointed for Shackelford.
12
   Idaho Criminal Rule 44.3(8) states:
         Notwithstanding the requirement of this rule that all appointments shall be from the court-
         maintained rosters, if an appointment of counsel from the rosters cannot practically and
         expeditiously be made, the appointing court may appoint one or more counsel who are not on the
         roster but who otherwise meet the qualifications set out in this rule.
I.C.R. 44.3 (2008).

                                                       36
We find that Shackelford has not demonstrated that counsel‟s performance fell below an
objective standard of reasonableness or that he was in anyway prejudiced by counsel not being
on the Idaho Supreme Court roster.
        ii. Impeaching State’s witnesses
       Shackelford next argues that counsel failed to adequately impeach PJ Baker and
Katherine Baker. He contends that trial counsel did not know about PJ‟s significant criminal
record, other than a felony conviction related to a bombing, and a reasonably competent attorney
would have vigorously impeached PJ on these matters. He asserts that had a more vigorous
impeachment been conducted, the jury would not have believed PJ‟s testimony and the result of
his trial would have been different.    Shackelford contends that his trial counsel failed to
adequately impeach Katherine because there were inconsistencies in her testimony that went
unnoticed by counsel and thus by the jury. Again, he asserts that a more vigorous impeachment
of Katherine would have weakened PJ‟s testimony and led the jury to not believe PJ.
       The State asserts that Shackelford has failed to explain how further impeachment of these
two witnesses would have changed the outcome of his trial. The State explains that the jury was
aware that PJ was a convicted felon and that the State had granted him immunity as concerned
PJ‟s charge of handling of a firearm by a convicted felon. The State further contends that
Shackelford‟s claim regarding Katherine fails because he has not demonstrated prejudice and
counsel‟s actions were reasonable.
       As was expressed in Strickland v. Washington, 466 U.S. 668 (1984), we need not address
whether counsel‟s performance in impeaching the Bakers was deficient before examining
whether Shackelford demonstrated that he was prejudiced as a result of the alleged deficiencies.
Strickland, 466 U.S. at 697. Shackelford has argued that the jury would not have believed the
testimony of PJ and the outcome of the trial would have been different. However, he offers no
explanation as to how the outcome would have differed and why the jury would not have
believed PJ. In addition, the jury was aware that PJ was a convicted felon and that he had been
granted immunity by the State. Shackelford has not shown how the evidence of any other crimes
committed by PJ, even assuming they were admissible pursuant to I.R.E. 609, would have
otherwise altered the jury‟s opinion of PJ. Furthermore, Shackelford failed to demonstrate how
counsel‟s impeachment of Katherine prejudiced him. Thus, we find Shackelford‟s counsel were
not ineffective in their impeachment of the State‟s witnesses as Shackelford has not


                                              37
demonstrated that “counsel‟s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S.
at 686.
            iii. Preparing defense expert witnesses
          Shackelford next contends that his counsel were ineffective in preparing their arson
expert, Don Perkins, and their ballistics expert, Kay Sweeney. He asserts that counsel did not
have Perkins investigate the fire scene until the evening before his testimony, review any crime
scene photographs until the day of his testimony, or speak to trial counsel about his testimony
until just hours before he testified. Because Perkins was not adequately prepared, his testimony
was not helpful in rebutting the State‟s fire expert. In addition, Shackelford contends that trial
counsel failed to supply Sweeney with the necessary foundational support for his opinion that the
State‟s theory regarding the location of the shooter and the victims was not valid; therefore, the
exhibit supporting the testimony was rejected and the force of Sweeney‟s testimony undermined.
          The State counters that Shackelford‟s allegations that Perkins was not adequately
prepared were based upon pure speculation, and that Shackelford failed to establish any benefit
that would have been gained from providing Perkins with additional material or preparation. In
addition, Shackelford failed to provide any evidence of how, if Perkins had been better prepared,
that additional preparation would have affected the outcome of the trial. Finally, the State argues
that, at best, Sweeney‟s exhibit was merely cumulative evidence, which would not have changed
the outcome of Shackelford‟s trial.
          Perkins testified that he viewed the following to prepare for his trial testimony:
                 The documents you [defense counsel] provided me include the following:
          A copy of the Deary Fire Department incident report, a copy of the Lewiston fire
          report and the investigation report. You provided me a copy of Mr. Don
          Howard‟s report, you also provided me testimony, the courtroom testimony, of
          Mr. Howard. You provided me with the report from Mr. Lauper, the Idaho State
          Fire Marshall, and his report and also his testimony.
                   You‟ve also provided me with some photographs of the fire scene taken
          by investigators. And you‟ve also provided me with some additional written
          statements, written by Gary Fontaine and Ted Meske on the evening of this
          incident. I also had the opportunity to visit the fire scene late yesterday afternoon.
          . . . I shoveled off the whole pad so that I could physically see the burn patterns
          and the materials that were left that‟s been shown me in the photographs
          provided.



                                                   38
Perkins testified that the fact that he had started reviewing documents in the middle of November
had not impacted his opinion because he “had ample time to review the documents.” There was
no recross-examination of Perkins that demonstrated any problems with him not having time to
prepare other than questions about the physical scene. Perkins was able to review all of the
pictures offered by the State and he reviewed the State‟s experts‟ investigations and reports.
Shackelford does not indicate how he was prejudiced so “that the trial cannot be relied on as
having produced a just result” because of counsel‟s preparation of Perkins. Strickland, 466 U.S.
at 686. Perkins testified that he was adequately prepared and Shackelford has not shown a
reasonable probability that the result would have been different had Perkins been more prepared.
Therefore, we find that Shackelford was not prejudiced by any deficiencies in counsel‟s
preparation of Perkins.
         Similarly, Shackelford has not demonstrated that he was prejudiced or that the outcome
of the trial would have been any different had trial counsel adequately prepared Sweeney. He
contends that if the exhibit had been provided, the jury would have known that the State‟s theory
was flawed, but Sweeney testified to this matter and the exhibit was simply offered for
illustrative purposes. Shackelford again has shown no reasonable probability that the result
would have differed if the exhibit had been allowed. Therefore, we find that Shackelford‟s right
to effective assistance of counsel was not violated, and the district court did not err in summarily
dismissing his claim for post-conviction relief.
    4. Cumulative error did not deprive Shackelford of a fair trial.
         Shackelford argues that the accumulation of irregularities aggregated to show the absence
of a fair trial. Therefore, he asserts, the cumulative error doctrine requires a reversal of the
conviction as the trial contravened his right to due process. Under the cumulative error doctrine,
“an accumulation of irregularities, each of which might be harmless in itself, may in the
aggregate reveal the absence of a fair trial in contravention of the defendant‟s right to due
process.” State v. Severson, 147 Idaho 694, ___, 215 P.3d 414, 443 (2009) (quoting State v.
Martinez, 125 Idaho 445, 453, 872 P.2d 708, 716 (1994)).           The presence of errors alone,
however, does not require the reversal of a conviction. State v. Moore, 131 Idaho 814, 823, 965
P.2d 174, 183 (1998). The cumulative effect of the errors we have noted, when viewed in
relation to the totality of the evidence presented at trial, did not deprive Shackelford of a fair
trial.


                                                   39
B. Sentencing Phase
       The State has cross-appealed the district court‟s grant of post-conviction relief under Ring
v. Arizona, 536 U.S. 584 (2002), which set aside Shackelford‟s death sentences for resentencing
by a jury. The State argues that, because the weighing of mitigating factors under I.C. § 19-
2515(c) does not increase the penalty from life to death, but actually reduces the penalty from
death to life, the weighing process is not the functional equivalent of an element of a greater
offense and, therefore, the jury was not mandated to complete the weighing process in
Shackelford‟s case. In addition, the State argues that since the jury‟s first-degree murder verdicts
established that Shackelford murdered Donna and Fred at the same location and date, it follows
that the jury found the multiple murder aggravator of I.C. § 19-2515(h)(2) (2000) beyond a
reasonable doubt.
       Shackelford contends that his death sentence is unconstitutional under Ring because the
jury did not make the findings of fact that made Shackelford eligible for the sentence of death.
He argues that the jury could not have found the aggravating circumstance under I.C. § 19-
2515(h)(2) because the jury did not take part in Shackelford‟s sentencing proceedings and the
guilt-phase verdict is not sufficient to conclude that the jury would have found the statutory
aggravating circumstances beyond a reasonable doubt. Alternatively, Shackelford argues that
even if this Court finds that the district judge could permissibly infer the requisite finding of the
statutory aggravator in this case, the district court‟s vacation of Shackelford‟s death sentence
must be affirmed because the jury did not weigh the aggravator against the mitigating
circumstances.
       Both Shackelford and the State agree that Ring v. Arizona applies because the Supreme
Court released the decision in Ring during the time the direct review of this case was pending.
See Griffith v. Kentucky, 479 U.S. 314, 323 (1987). The district court found that Shackelford‟s
death sentence should be set aside because a jury, not a judge, must weigh the mitigating factors
against the aggravating factors. The court did not agree with Shackelford‟s contention, however,
that the jury did not find any of the aggravating factors. Instead, the district court found that the
jury‟s verdicts for first-degree murder of both Donna and Fred established the existence of
multiple murders and thus found the statutory aggravator beyond a reasonable doubt pursuant to
I.C. §19-2515(h)(2). Specifically, the court stated: “[T]he jury found the Petitioner guilty of the
first degree murders of both Donna Fontaine and Fred Palahniuk at the same location and on the


                                                 40
same date. Those verdicts, standing alone, appear to establish the existence of multiple murders
which constitutes a statutory aggravator beyond a reasonable doubt.”
       The jury here found Shackelford guilty of the first-degree murder of both Donna and Fred
by general verdict, which respectively read: “As to the charge of First Degree Murder of Donna
Fontaine [Fred Palahniuk], we, the Jury in the above entitled cause, find the defendant: Guilty.”
The verdicts for the murders of both Donna and Fred were based on jury instructions that
instructed the jury to find beyond a reasonable doubt that “the killing occurred in Latah County,
and in the State of Idaho” and that “the killing occurred on or about the 29th day of May, 1999.”
The district court‟s finding of aggravating factors in its original imposition of the death sentences
was based on both I.C. § 19-2515(h)(2) (2000) and I.C. § 19-2515(h)(10) (2000), in the case of
Donna, and I.C. § 19-2515(h)(2), in the case of Fred. In its Findings of the Court in Considering
Death Penalty, the district court found, as to Donna‟s murder, that the State had proven beyond a
reasonable doubt two statutory aggravating factors, including: (1) at the time the murder was
committed the defendant also committed another murder, I.C. § 19-2515(h)(2), and (2) the
murder was committed against a witness or potential witness in a criminal or civil proceeding
because of such proceeding, I.C. § 19-2515(h)(10). As to Fred‟s murder, the court found beyond
a reasonable doubt one statutory aggravating factor, that at the time the murder was committed
the defendant also committed another murder, I.C. § 19-2515(h)(2).
       The Sixth Amendment entitles capital defendants “to a jury determination of any fact on
which the legislature conditions an increase in their maximum punishment.” Ring, 536 U.S. at
589.   The effect of Ring was to convert statutory aggravating circumstances relevant to
sentencing into “the functional equivalent of an element of a greater offense,” which must be
proved to a jury beyond a reasonable doubt. Id. at 606-09; Apprendi v. New Jersey, 530 U.S.
466, 482-84 (2000). Thus, Ring rendered unconstitutional the sentencing scheme of I.C. § 19-
2515 (2001), which required the trial judge to make the factual findings regarding the existence
of aggravating circumstances. State v. Lovelace (Lovelace I), 140 Idaho 53, 66-67, 90 P.3d 278,
291-92 (2003). When reviewing a Ring error, this Court applies a structural error analysis. See
State v. Lovelace (Lovelace II), 140 Idaho 73, 80, 90 P.3d 298, 205 (2004) (“We conclude that
Ring error is not susceptible to harmless-error analysis in this case.”); see also Summerlin v.
Stewart, 341 F.3d 1082, 1119 (2003) (“Given [Ring’s] declaration that a defendant is entitled




                                                 41
under the Sixth Amendment to a jury verdict in the penalty phase of a capital case, the
substitution of a non-jury verdict cannot be subject to harmless-error analysis.”).
        Based on the reasoning presented in a line of Alabama cases, 13 the State maintains that
verdicts produced at the guilt stage of a trial can show that the jury found a defendant guilty of
aggravating factors. These findings by the jury in this instance, the State argues, meet the
criteria for the multiple-murder aggravator, I.C. § 19-2515(h)(2). A similar argument was
advanced by the State in Lovelace II. There, the State argued that Ring error was subject to a
harmless error analysis because failing to have the jury decide aggravating factors was akin to
failing to give a jury instruction. Lovelace II, 140 Idaho at 78-79, 90 P.3d at 303-04. Lovelace
had been found guilty of first-degree murder and first-degree kidnapping. Lovelace I, 140 Idaho
at 59, 90 P.3d at 284. However, the State argued that because the jury had found Lovelace guilty
of kidnapping, it was harmless error that the trial court did not include the statutory aggravating
factors in the instructions to the jury. Lovelace II, 140 Idaho at 79, 90 P.3d at 304. This Court
noted that the State was “asking the Court to determine what the jury would have found had it
been presented with instructions defining [the statutory aggravating factors that were] to be
applied to the facts surrounding the murder.” Id.
        To engage in appellate hindsight on this issue, such as that advanced by the State, is
constitutionally infirm. First, it violates the jury-trial guarantee for a court to “hypothesize a
guilty verdict that was never in fact rendered—no matter how inescapable the findings to support
the verdict might be[.]” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). Next, the Sixth
Amendment “requires more than appellate speculation about a hypothetical jury‟s action.” Id. at
280. Moreover, to accept the State‟s argument would be to look at the form of the jury verdict,
rather than the effect of using it to sentence Shackelford to death. Ring instructs that this cannot
be done. 536 U.S. at 604. Rather, when presented with this same argument by Arizona—that
the defendant had been found guilty of a crime which could also serve as an aggravating factor—
the Supreme Court noted that this argument overlooks the relevant inquiry of effect, rather than
form.    Id.   Instead, if “a State makes an increase in a defendant‟s authorized punishment
contingent on the finding of fact, that fact—no matter how the State labels it—must be found by
a jury beyond a reasonable doubt.” Id. at 602. Therefore, a “defendant may not be exposed to a


13
  The cases include Turner v. State, 924 S.2d 737 (Ala. Crim. App. 2002); Irvin v. State, 940 S.2d 331 (Ala. Crim.
App. 2005); and Tomlin v. State, 909 So.2d 213 (Ala. Crim. App. 2002).

                                                       42
penalty exceeding the maximum he would receive if punished according to the facts reflected in
the jury verdict alone.” Id. at 602 (quoting Apprendi, 530 U.S. at 483) (alterations removed).
       In this case, the charge to the jury on first-degree murder for both Donna and Fred had
elements including that the killing occurred in Latah County and on or about May 29, 1999. The
verdict form reads simply: “As to the charge of First Degree Murder of Donna Fontaine [Fred
Palahniuk], we, the Jury in the above entitled cause, find the defendant: Guilty.” There was no
finding by this jury that, at the same time one murder was committed, the defendant committed
another murder.
       Therefore, we affirm the district court‟s decision vacating Shackelford‟s sentence and its
determination that Shackelford must be resentenced by a jury under Ring. Without analyzing
whether Ring requires a jury to weigh mitigating factors, this Court finds that the jury was
required to find the aggravator, and such a finding was not explicit in the first-degree murder
verdicts.
                                         III. CONCLUSION
       We affirm the district court on all issues. We affirm on the order for resentencing on
different grounds and remand for a sentencing hearing pursuant to § 19-2515 (2008).
       Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON, CONCUR.




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