                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 39398

STATE OF IDAHO,                         )
                                                             Boise, June 2013 Term
                                        )
    Plaintiff-Respondent,               )
                                                             2013 Opinion No. 107
                                        )
v.                                      )
                                                             Filed: October 30, 2013
                                        )
DALE CARTER SHACKELFORD,                )
                                                             Stephen W. Kenyon, Clerk
                                        )
    Defendant-Appellant.                )
                                                             SUBSTITUTE OPINION, THE
                                        )
                                                             COURT’S PRIOR OPINION
                                        )
                                                             DATED AUGUST 16, 2013 IS
                                        )
                                                             HEREBY WITHDRAWN
_______________________________________ )

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

       The district court’s judgment on resentencing is affirmed.

       Sara B. Thomas, Idaho State Appellate Public Defender, for appellant. Shannon
       N. Romero argued.

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

J. JONES, Justice.
       Dale Carter Shackelford appeals two consecutive fixed life sentences he received on
resentencing for two first-degree murder convictions. Shackelford was initially sentenced to
death for both murders but the death sentences were subsequently set aside. Shackelford
contends that the district court committed error in resentencing him to the consecutive fixed life
sentences.
                                       I.
                        FACTUAL AND PROCEDURAL HISTORY
       On February 11, 2000, Shackelford was 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.” State v. Shackelford, 150 Idaho 355, 362, 247 P.3d 582, 589 (2010).



                                                1
“The State alleged that Shackelford conspired with Martha Millar, Bernadette Lasater, Mary
Abitz, Sonja Abitz, and, John Abitz” in the commission of his crimes. Id. In December of 2000, a
jury found Shackelford guilty of: (1) the first-degree murder of his ex-wife, Donna Fontaine; (2)
the first-degree murder of Donna’s boyfriend, Fred Palahniuk; (3) conspiracy to commit first-
degree murder; (4) first-degree arson; (5) conspiracy to commit arson; and (6) preparing false
evidence. Id. “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.” Id.
“Shackelford was also given prison sentences for the other felony offenses.” Id. at 362–63, 247
P.3d at 589–90. Shackelford’s trial and sentencing were conducted by district judge John Stegner
of the second judicial district.
        On April 8, 2005, in response to Shackelford’s request for post-conviction relief, the
district court set aside Shackelford’s death sentences based upon its interpretation of Ring v.
Arizona, 536 U.S. 584 (2002). Id. at 363, 247 P.3d at 590. Both parties appealed to this Court.
We affirmed Shackelford’s first-degree murder convictions, as well as the district court’s
decision to vacate Shackelford’s death sentences and remanded the case for resentencing on the
murder convictions. Id. at 388, 247 P.3d at 615. Shackelford’s resentencing was also set before
Judge Stegner. On remand, the State filed a notice that it would not seek the death penalty for the
murders of Fontaine and Palahniuk.
        On July 12, 2011, Judge Stegner ordered the Department of Correction of the State of
Idaho to prepare an updated presentence investigation report (PSI) for Shackelford’s resentencing.
Shackelford filed an objection to the updated PSI, alleging twelve specific infirmities.
        On August 3, 2011, Shackelford moved to disqualify Judge Stegner for cause pursuant to
I.C.R. 25(b). Shackelford filed a brief in support of his motion to disqualify Judge Stegner, arguing
that his due process right to an impartial judge would be violated if Judge Stegner was not
disqualified. A hearing was set for August 26, 2011, to address Shackelford’s motion to disqualify
Judge Stegner for cause. At the hearing, Judge Stegner denied Shackelford’s motion and set his
sentencing for September 28, 2011.
        At the conclusion of Shackelford’s resentencing hearing, Judge Stegner sentenced
Shackelford to two fixed life sentences, to be served consecutively, for the murders of Fontaine
and Palahniuk. On October 6, 2011, the district court issued its “Judgment of Conviction on



                                                  2
Resentencing–Counts I and II,” and formally sentenced Shackelford to two fixed life sentences to
run consecutively with each other, and with the sentences previously imposed in Counts III (first
degree arson―25 years fixed), IV (conspiracy to commit first-degree murder―fixed life), V
(conspiracy to commit first degree arson―25 years fixed), and VI (preparing false evidence―5
years fixed). Shackelford appealed to this Court.
                                                   II.
                                         ISSUES ON REVIEW
   I.          Did the district judge abuse his discretion by denying Shackelford’s motion to
               disqualify him for cause under I.C.R. 25(b)?
   II.         Was Shackelford’s Sixth Amendment right to confrontation violated during his
               resentencing?
   III.        Did the district court abuse its discretion by considering the written statement of
               Suzanne Birrell, attached to Shackelford’s updated PSI?

                                                III.
                                            DISCUSSION
          A.      Standard of Review.
          We review a district judge’s decision to deny an I.C.R. 25(b)(4) motion to disqualify under
an abuse of discretion standard. State v. Sivak, 127 Idaho 387, 389, 901 P.2d 494, 496 (1995).
This Court “exercises free review over the trial court’s determination as to whether constitutional
requirements have been satisfied in light of the facts found.” State v. Hooper, 145 Idaho 139,
142, 176 P.3d 911, 914 (2007). Further, “[t]he interpretation of a statute is a question of law over
which this Court exercises free review.” State v. Payne, 146 Idaho 548, 575, 199 P.3d 123, 150
(2008).
          B.      The district judge did not abuse his discretion by denying Shackelford’s
                  motion to disqualify him for cause.
          On August 3, 2011, prior to his resentencing, Shackelford filed a motion to disqualify
Judge Stegner for cause. Shackelford argued that disqualification was warranted because Judge
Stegner was biased and prejudiced against him such that he was no longer impartial, violating
Shackelford’s due process rights. Shackelford contended that Judge Stegner was not impartial
because: (1) he reviewed statements of Sonja Abitz that were testimonial hearsay prior to
sentencing him in October of 2001; (2) he reviewed, in camera, defense counsel’s trial notes; and,
(3) he reviewed multiple victim impact statements from Shackelford’s original PSI. A hearing
addressing Shackelford’s for cause disqualification motion was held on August 26, 2011. At the
hearing, Shackelford’s counsel summarized his for cause disqualification argument as follows:


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       We’re simply contending that due to the saturation effect through the Court’s
       exposure to all of the information, documents, and statements that the Court has
       seen and heard in this case and related cases, that it would appear that bias or
       prejudice could be the result of that saturation effect.
The district court denied Shackelford’s motion. Judge Stegner stated that disqualification was not
necessary because he had no actual prejudice against Shackelford that would keep him from
carrying out the resentencing in an impartial manner. Further, Judge Stegner stated that if he had
any prejudice or bias against Shackelford he would not have vacated his sentence of death for the
two murder counts that were the subject of the resentencing.
       On appeal, Shackelford argues that the district court abused its discretion in denying his
motion to disqualify. Shackelford contends that “the overwhelming volume and nature of Judge
Stegner’s exposure to impermissible, inflammatory and prejudicial information” made it
impossible for him to act fairly and impartially. Specifically, Shackelford argues that Judge
Stegner could not impartially apply the appropriate legal standards because he: (1) presided over
the criminal trials of Shackelford’s co-defendants; (2) heard statements incriminating Shackelford
that were made during the proceedings of his co-defendants, but not elicited at Shackelford’s trial;
(3) presided over Shackelford’s initial sentencing and formed an opinion that Shackelford
“manipulated, deceived, and coerced others to commit acts they would otherwise not do”; (4)
heard numerous statements that constituted testimonial hearsay that were not subject to cross-
examination; (5) was privy to confidential trial notes of defense counsel; and (6) was exposed to
inadmissible victim impact statements.
       The State argues that Shackelford has failed to establish that the district court abused its
discretion by denying Shackelford’s disqualification motion. The State contends that “mere
exposure to additional information from a defendant, co-defendant, or some extra-judicial source,
simply does not rise to the level of bias for [the] purposes of I.C.R. 25(b)(4) or due process.” In
sum, the State argues that there is no basis to find that Judge Stegner was biased or prejudiced
toward Shackelford based on his prior knowledge of the case and his previous decision to impose
death penalties.
       Although there are limited instances where due process requires judicial disqualification,
those cases have involved “extreme facts that created an unconstitutional probability of bias.”
Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 887. However, “most disputes over
disqualification will be resolved without resort to the Constitution.” Id. at 890. That is, legislative



                                                  4
or judicial codes of conduct will generally be resorted to in resolving judicial disqualification
questions. As the Caperton Court stated:
       It is axiomatic that “[a] fair trial in a fair tribunal is a basic requirement of due
       process.” [In re] Murchison, [349 U.S. 133] 136 [1955]. As the Court has
       recognized, however, “most matters relating to judicial qualification [do] not rise
       to a constitutional level.” FTC v. Cement Institute, 333 U.S. 683, 702 (1948). The
       early and leading case on the subject is Tumey v. Ohio, 273 U.S. 510 (1927).
       There, the Court stated that “matters of kinship, personal bias, state policy,
       remoteness of interest, would seem generally to be matters merely of legislative
       discretion.” Id. at 523.
Caperton, 556 U.S. at 876.
       The Caperton Court identified three instances “which, as an objective matter, require
recusal” under the Due Process Clause. Id. at 877. “These are circumstances in which experience
teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to
be constitutionally tolerable.” Id. These circumstances include: (1) instances where the judge has
a financial interest in the outcome of the case (Id. at 877−79); (2) the situation where a judge
charges a defendant with criminal contempt and then proceeds to try him on the charge (Id. at
880−81); and (3) cases where a person with a personal stake in a particular case had a significant
and disproportionate influence in placing the judge on the case. Id. at 884–86. Unlike the three
abovementioned circumstances, “[p]ersonal bias or prejudice ‘alone would not be sufficient basis
for imposing a constitutional requirement under the Due Process Clause.” Id. at 877 (quoting
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986)).
       As Shackelford points out, the due process guarantee to a fair and impartial judge is
memorialized in Idaho Criminal Rule 25(b), which permits a party to disqualify a judge for bias
or prejudice. Under I.C.R. 25(b), “Any party to an action may disqualify a judge … from
presiding in any action” if “[t]hat judge … is biased or prejudiced for or against any party or that
party’s case in the action.” I.C.R. 25(b)(4).
       When addressing a motion to disqualify at resentencing brought under I.C.R. 25, “the
judge must recognize the case has been judged, that lasting opinions have been formed, and that
the judge must determine if the proper legal analysis which the law requires can be performed.”
Sivak, 127 Idaho at 389, 901 P.2d at 496. “A trial judge is not required to erase from his mind all
that has gone before, and indeed, it is doubtful that any human being could.” State v. Beam, 115
Idaho 208, 215, 766 P.2d 678, 685 (1988). “If the judge can make the proper legal analysis, then
the motion to disqualify should be denied.” Sivak, at 389, 901 P.2d 496. This is because “we


                                                 5
presume that a sentencing judge is able to ascertain the relevancy and reliability of a broad range
of information which may be presented during the sentencing process, and to disregard that
which is irrelevant and unreliable.” Id. at 390–91, 901 P.2d at 497–98. Furthermore, a trial
judge’s exposure to evidence, admissible or not, standing alone, does not demonstrate bias at
sentencing. Paradis v. Arave, 20 F.3d 950, 958 (9th Cir. 1994). Additionally, the “mere fact that
a judge presided over the separate trial of a codefendant does not ‘constitute reasonable grounds
for questioning his impartiality in a subsequent … trial involving a remaining codefendant.’” Id.
(quoting U.S. v. Cowden, 545 F.2d 257, 265–66 (1st Cir. 1976)).
       A district judge’s decision to deny a for cause motion to disqualify pursuant to I.C.R.
25(b)(4) is reviewed under an abuse of discretion standard. Sivak, 127 Idaho at 389, 901 P.2d at
496. In determining whether the district court abused its discretion, the Court asks: “(1) whether
the trial court correctly perceived the issue as discretionary; (2) whether the trial court acted
within the boundaries of its discretion and consistent with the applicable legal standards; and (3)
whether the trial court reached its determination through an exercise of reason.” State v. Pratt,
128 Idaho 207, 211, 912 P.2d 94, 98 (1996).
       In this case, Judge Stegner did not abuse his discretion by denying Shackelford’s motion
to disqualify him for cause. First, Judge Stegner recognized that his decision to grant or deny the
I.C.R. 25(b) motion was discretionary. At the motion hearing, Judge Stegner stated:
       Well, I think the standard of disqualification is that the Court should grant the
       motion if it has actual prejudice against the defendant of such a nature to render it
       improbable that the Court could carry out the sentencing in a fair and impartial
       manner. Based on that standard, I’m denying the motion.
This excerpt illustrates that Judge Stegner properly understood the disqualification standard and
also that the decision to grant the motion was at his discretion. Second, Judge Stegner acted
within the bounds of his discretion. Disqualification is only necessary under I.C.R. 25(b) where
the trial judge has “actual bias” against the defendant “of such nature and character as would
render it improbable that under the circumstances the party could have a fair and impartial trial.”
State v. Pizzuto, 119 Idaho 742, 776, 810 P.2d 680, 714 (1991), overruled on other grounds by
State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991). In this case, Judge Stegner found that he
had no actual bias against Shackelford. At the motion hearing Judge Stegner stated that “the
cumulative effect of all the information” he was privy to did not prejudice him against
Shackelford. Furthermore, as noted above, exposure to evidence alone will not result in a finding



                                                6
of actual bias. Lastly, Judge Stegner reached his decision to deny the for cause disqualification
motion through an exercise of reason. Thus, Judge Stegner did not abuse his discretion by
denying Shackelford’s motion to disqualify him for cause.
       C.      The district court did not violate Shackelford’s Sixth Amendment right of
               confrontation.
       The updated PSI ordered by Judge Stegner contained numerous attachments. On appeal,
Shackelford takes issue with three attachments to the updated PSI: (1) a written statement made by
Madison County, Missouri, prosecuting attorney Scott Killen; (2) a written statement from
Shackelford’s co-defendant Bernadette Lasater, which includes correspondence between Lasater
and Shackelford; and, (3) a written statement from Shackelford’s co-defendant Martha Millar.
       On August 23, 2011, Shackelford filed twelve objections to the updated PSI. In his
objections, Shackelford argued that under Crawford v. Washington, 541 U.S. 36 (2004), the
statements from Killen, Lasater, and Millar should not be considered by the court because they
were out-of-court testimonial statements, barred by the Confrontation Clause.
       On appeal, Shackelford raises the same argument and asserts that the district court erred
when it considered the statements of Killen, Lasater, and Millar because those statements were
testimonial and should not have been considered unless they were subject to confrontation and
cross-examination. Specifically, Shackelford argues that the plain language of the Sixth
Amendment to the U.S. Constitution, considered in its historical context, affords him the right to
confront all witnesses against him, not only during the guilt phase, but also during the sentencing
phase of trial. Shackelford contends that the Confrontation Clause extends to sentencing
proceedings because, at the time the Sixth Amendment was drafted, the common law
understanding of the term “criminal prosecutions” included sentencing. In addition, Shackelford
argues that due to our forefathers’ historical distrust of oppressive government, including judges,
they would not have intended to cut off an accused’s constitutional rights at the conclusion of the
guilt phase of a trial. Lastly, Shackelford contends that the Confrontation Clause should have
barred consideration of the letters because under Michigan v. Bryant, 131 S. Ct. 1143 (2011), the
statements of Killen, Lasater, and Millar were testimonial statements made for the purpose of
establishing past events that would be relevant to sentencing. In sum, Shackelford argues that his
two fixed life sentences must be vacated because he was constitutionally entitled to confront and
cross-examine the testimonial statements made against him during his sentencing.
       The State argues that Shackelford’s Confrontation Clause claim fails for three reasons.


                                                7
First, the State argues that Shackelford’s Sixth Amendment claim has no merit because the
Confrontation Clause does not apply at the sentencing phase of trial. Second, irrespective of the
Confrontation Clause’s application at sentencing, the State argues that Shackelford has failed to
establish that the district court even considered the statements of Killen, Lasater, and Millar. Third,
the State contends that even if this Court finds that the Confrontation Clause applies to the
sentencing phase, any error committed by the district court was harmless because “there is no
possibility the statements contributed to [Shackelford’s] fixed life sentences for first-degree
murder.”
        The Sixth Amendment’s Confrontation Clause confers upon the accused “[i]n all criminal
prosecutions, the right to be confronted with the witnesses against him.” Bullcoming v. New
Mexico, 131 S. Ct. 2705, 2713 (2011). The Confrontation Clause applies to state prosecutions via
incorporation from the Due Process Clause of the Fourteenth Amendment. Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 309 (2009). “[I]n order for testimonial evidence to be admissible
… the Sixth Amendment ‘demands what the common law required: unavailability and a prior
opportunity for cross-examination.’” Bryant, 131 S. Ct. at 1153 (quoting Crawford, 541 U.S. at
68). However, the right of the accused to confront the witness against him only extends to the
guilt phase of trial, while “[a]t sentencing, the defendant’s confrontation rights are much more
limited.” John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing,
105 COLUM. L. REV. 1967, 1975–976 (2005).
        The U.S. Supreme Court has never expressly addressed the applicability of the
Confrontation Clause at sentencing. However, its holding in Williams v. People of State of N.Y.,
337 U.S. 241 (1949), intimates that the Confrontation Clause does not apply during the
sentencing phase of a trial. In Williams, a jury found the defendant guilty of murder and
recommended life imprisonment but the judge, after considering additional information, imposed
a death sentence. Id. at 242. Williams argued that the sentencing court’s reliance on out-of-court
information deprived him of due process in violation of the Fourteenth Amendment. Id. at 243.
The Court rejected this argument, saying “we do not think the Federal Constitution restricts the
view of the sentencing judge to the information received in open court. The due-process clause
should not be treated as a device for freezing the evidential procedure of sentencing in the mold
of trial procedure.” Id. at 251.




                                                  8
       Although Williams dealt with due process in the sentencing context, courts have
consistently relied on Williams for the proposition that the Confrontation Clause does not apply
in the sentencing phase. United States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005) (“Both the
Supreme Court and this Court, however, have consistently held that the right of confrontation
does not apply to the sentencing context and does not prohibit the consideration of hearsay
testimony in sentencing proceedings.”); Szabo v. Walls, 313 F.3d 392, 398 (7th Cir. 2002) (“Yet
the Supreme Court has held that the Confrontation Clause does not apply to … sentencing. It
applies through the finding of guilt, but not to sentencing.”); Bassette v. Thompson, 915 F.2d
932, 939 (4th Cir. 1990) (“A sentencing court’s consideration of reports in a presentence
investigation is guided by the holding in Williams … in which the court found that the due
process clause of the Fourteenth Amendment did not require that a person convicted after a fair
trial be confronted with and permitted to cross-examine witnesses as to his prior criminal record
considered by the judge in determining what sentence to impose.”); Ortiz v. Stewart, 149 F.3d
923, 937 (9th Cir. 1998) (“In fact, this Court regularly cites Williams for the proposition that a
sentencing judge can rely on information provided by witnesses that the defendant has not had
the chance to cross-examine, as long as the defendant has had the opportunity to rebut, deny, or
explain the information used.”).
       This Court has previously relied on Williams to determine “whether a defendant in a
capital case should be afforded the constitutional right to confront and cross-examine live
witnesses against him at the sentencing phase of his trial.” See Sivak v. State, 112 Idaho 197,
215, 731 P.2d 192, 210 (1986). The Court found that no such right existed, and stated:
       We continue … to adhere to the position of the U.S. Supreme Court [in] Williams
       …. The justification for the refusal to completely extend the procedural
       protections of the sixth amendment to the sentencing phase is based, in part, on
       the belief that modern penological policies, which favor sentencing based on the
       maximum amount of information about the defendant, would be thwarted by
       restrictive procedural and evidentiary rules.
Id.
       A significant period of time has transpired since this Court’s opinion in Sivak v. State
and, as this Court recognized in Hooper, “[t]he U.S. Supreme Court’s decision in Crawford v.
Washington … significantly altered the Supreme Court’s Confrontation Clause analysis. A
subsequent case, Davis v. Washington, … further clarified Crawford, but left many issues
unresolved.” 145 Idaho at 142, 176 P.3d at 914. Notwithstanding Crawford, courts continue to


                                                9
hold that during the sentencing phase the right to confront witnesses does not exist. See United
States v. Littlesun, 444 F.3d 1196, 1199 (9th Cir. 2006) (holding that “Crawford speaks to trial
testimony, not sentencing” in response to a defendant’s argument that Williams’ longstanding
principles have been implicitly overruled by the Supreme Court’s decision in Crawford).
        In this case, Shackelford’s Confrontation Clause claim has no merit because under
Williams, and Sivak v. State, Shackelford had no constitutional right to confront and cross-
examine any witnesses during the sentencing phase of his criminal prosecution.
        D.      The inclusion of Suzanne Birrell’s letter as an attachment to the updated PSI
                was not an abuse of discretion.
        Shackelford’s updated PSI included a letter from Suzanne Birrell, a close friend of
Fontaine. In the letter, Birrell indicated that Fontaine was her best friend. Further, Birrell stated that
she was crying as she wrote the letter and “that she misses [Fontaine] so much.” Birrell’s letter also
states that Shackelford “told [her] that he intended to kill [Fontaine] and make it look like an
accident.” Birrell’s letter states:
        [Shackelford] told me that he would kill me and Shanna, [Fontaine’s] daughter, if
        we caused him to be put in prison. I believed he would. After all he made good on
        his threat to kill [Fontaine] and make it look like an accident. I worry that if
        Shackelford ever gets out that he will make good on his promise. I worry that if he
        couldn’t find me that he would go after my children or my grandchildren.
        Regarding the death penalty: I don’t care. I do however want the assurance that
        Dale Shackelford will never, absolutely never get out of prison.
Shackelford objected to Birrell’s statement:
        The Defendant objects to the Letter from Suzanne Birrell … on the basis of the
        holding in State v. Payne, 146 Idaho 548, 199, P.3d 123 (2008) which limited
        victim impact statements to members of the deceased’s immediate family. Suzanne
        Birrell … is not a member of the immediate family.
However, despite Shackelford’s objections, the Birrell letter remained part of his update PSI.
        During Shackelford’s sentencing hearing, the State, while making its sentencing
recommendation referenced the Birrell letter, stating:
        We look at [Shackelford’s] character and the fear that he’s created in others. And
        we talk about the new letters that have been received, Your Honor, which echo
        what we’ve talked about in the past. [Birrell], close friend of Donna Fontaine, talks
        about not only what she lost in the death of her friend Donna … but also relates
        firsthand “He, Mr. Shackelford, also told me that he would kill me and Shanna,
        [Fontaine’s] daughter, if we caused him to be put in prison. I worry that if
        Shackelford ever gets out that he will make good on his promise. I worry that if he
        couldn’t find me that he would go after my children or my grandchildren.”


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        At Shackelford’s resentencing hearing, Judge Stegner specifically inquired as to whether
the State wished to offer any victim testimony. In response, Counsel for the State indicated “[t]here
are none present, Your Honor. The State would refer the Court back to the original presentence
investigation and the original sentencing, where there was that type of information offered to the
Court.” Counsel for the State did, however, remind the district court that Fontaine’s daughter,
Shanna Hathman, had drafted a letter that was attached to the updated PSI, but stated that beyond
Hathman’s letter, “the State has nothing ... specifically on behalf of the victims.”
        On appeal, Shackelford argues that the district court abused its discretion in considering a
victim impact letter from a person who was neither a victim of Shackelford’s crimes nor an
immediate family member of one of Shackelford’s victims. Specifically, Shackelford contends that
the written statement of Birrell should have been stricken as an attachment to the updated PSI
because this Court’s interpretation of I.C. §19-5306 in State v. Payne prevents the district court
from admitting a victim statement from a person who is not a victim or an immediate family
member of a victim.
        The State argues that Shackelford’s argument is misplaced because Birrell’s statement was
not admitted as a victim impact statement. Rather, it was used to illustrate Shackelford’s
dangerousness and Birrell’s fear that if Shackelford is ever released from prison, he will kill others
that were involved in securing his convictions. Furthermore, the State contends that the district
court, during sentencing, has broad discretion to consider a wide range of relevant evidence in
order to determine an appropriate sentence. Lastly, the State argues that even if the district court
abused its discretion by admitting Birrell’s letter, the admission was harmless.
        Under I.C. § 19-5306 each victim 1 of a criminal case shall be “[c]onsulted by the
presentence investigator during the preparation of the presentence report and have included in
that report a statement of the impact which the defendant's criminal conduct had upon the
victim.” I.C. § 19-5306(1)(h). The provisions of I.C. § 19-5306 “apply equally to the immediate
families of homicide victims.” I.C. § 19-5306(3). In State v. Payne, this Court held that “I.C. §
19-5306 limits victim impact statements to immediate family members.” 146 Idaho at 575, 199
P.3d at 150. Further, the Court defined “immediate family members” as “parent, mother-in-law,

1
  As used in I.C. § 19-5306, “‘victim’ is an individual who suffers direct or threatened physical, financial or
emotional harm as the result of the commission of a crime or juvenile offense.” I.C. § 19-5306(5)(a).




                                                      11
father-in-law, husband, wife, sister, brother, brother-in-law, sister-in-law, son-in-law, daughter-
in-law, or a son or daughter.” Id. Thus, the Court held that, in a homicide case, victim impact
statements by those who are not “immediate family members” of the victim are inadmissible. Id.
at 575–76, 199 P.3d at 150–51.
       “Victim impact evidence is simply another form or method of informing the sentencing
authority about the specific harm caused by the crime in question, evidence of a general type
long considered by sentencing authorities.” Payne v. Tennessee, 501 U.S. 808, 825 (1991).
“Victim impact evidence provides only two types of information: (1) it describes the
characteristics of the victim and the emotional impact of the crime on the family; and (2) it sets
forth the family members’ opinions and characterizations of the crime and the defendant.” State
v. Payne, 146 Idaho at 573, 199 P.3d at 148. The Legislature has also indicated that victim
impact testimony is “designed to demonstrate the victim’s uniqueness as an individual human
being and the resultant loss to the community by the victim’s death.” See I.C. § 19-2515.
       In this case, Birrell is a friend, not an “immediate family member” of Fontaine or
Palahniuk. Thus, under the terms of I.C. § 19-5306 and this Court’s holding in State v. Payne, a
victim impact statement on behalf of Birrell would be inadmissible. However, there is no
indication in the record that the district judge considered the Birrell letter to be a victim impact
statement or that he allowed it to remain in the record as such.
       The State, at Shackelford’s resentencing hearing, did not consider Birrell’s letter a victim
impact statement or characterize it as one. According to the State, the only victim impact
statement in the updated PSI was that of Shanna Hathman, Fontaine’s daughter. Although the
State’s description of the letter is not determinative, it is a consideration. Additionally, the
content of Birrell’s letter does not reflect the traditional contents of a victim impact statement.
The letter tangentially addresses Fontaine’s death and the emotional impact on Birrell. However,
the main focus of the letter is that Birrell was once threatened by Shackelford, she felt the threat
was earnest, and she feared that it would be carried out if Shackelford were to be released.
Birrell’s letter does not offer any opinions or characterizations about the crime or Shackelford,
except that he had previously threatened her.
       Shackelford fails to explain why threats to kill others “if [they] caused him to be put in
prison” would not be relevant evidence at the sentencing phase of a criminal proceeding. It is
certainly proper in the course of the sentencing process for a district court to be advised of and



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consider the potential danger a defendant may pose to others. After all, “protecting society” is
the primary objective of a criminal sentence. State v. Miller, 151 Idaho 828, 834, 264 P.3d 935,
941 (2011). The district judge properly considered this evidence, which Shackelford had the
opportunity to explain or rebut, and we find no abuse of discretion on the part of the district
court.
                                           IV.
                                       CONCLUSION
         We affirm the district court’s judgment of conviction sentencing Shackelford to two
consecutive fixed life sentences for the murders of Donna Fontaine and Fred Palahniuk.


         Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON CONCUR.




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