[¶ 1.] Petitioner, Donald Moeller, was tried, convicted, and sentenced to death for the rape and murder of a nine-year-old girl. He applied for a writ of habeas corpus in the circuit court. We affirm the circuit court’s denial of relief.
Background
[¶ 2.] On May 8, 1990, nine-year-old Becky O’Connell was abducted after she visited a local store in Sioux Falls. Moel-ler had also been a customer there. After Becky left the store, a witness saw her presumably heading home. The witness also testified that he noticed Moeller moving toward Becky and Becky shying away *5 from him. Becky never made it home. Shortly after the witness had seen Becky and Moeller, three men driving through a secluded tract south of Sioux Falls noticed a light blue pickup with South Dakota license plates leaving the area. They later described the driver of the vehicle as matching Moeller’s general description.
[¶ 3.] The next day, two men discovered Becky’s body south of Sioux Falls in the area the blue pickup had been seen. An autopsy revealed that Becky had been sexually assaulted and stabbed to death. Three days later, as part of the murder investigation, a police detective spoke with Moeller about Becky’s disappearance. Moeller admitted owning a blue pickup truck. He denied any involvement with the disappearance and provided the detective with blood and hair samples. The following day, Moeller fled South Dakota. He left behind his ill mother and his truck. While in the State of Washington, he used at least two aliases.
[¶ 4.] On Moeller’s disappearance, the police obtained a search warrant for his home. Under his bed, they discovered a section of the Sioux Falls Argus Leader containing a composite sketch of Becky’s murderer and an article discussing the crime. Moeller’s clothes, which would have been subject to soil analysis, were found freshly washed in his otherwise messy, filthy room.
[¶ 5.] Moeller was eventually apprehended and returned to South Dakota. On July 31, 1991, he was indicted by a Lincoln County Grand Jury on one count of first degree rape, one count of felony murder, and one count of first degree murder. The State filed a death penalty notice alleging four aggravating circumstances.
[¶ 6.] Moeller’s first trial began in July 1992. On September 1, 1992, the jury returned a verdict of guilty of one count of rape in the first degree, and one count of premeditated murder in the first degree. After a presentence hearing, the jury imposed the death sentence.
[¶ 7.] The conviction was reversed on appeal and remanded for a new trial.
State v. Moeller,
[¶ 8.] The jury convicted Moeller of rape in the first degree and murder in the first degree. After a presentencing hearing, the jury found three aggravating circumstances and imposed the death sentence. On direct appeal, we affirmed.
State v. Moeller,
[¶ 9.] On February 16, 2001, Moeller filed an application for habeas corpus. The matter was heard by Circuit Judge Gene Paul Kean of the Second Judicial Circuit. The habeas court appointed counsel to represent Moeller. Also, the court granted Moeller’s request to depose the State’s soil expert, obtain a new defense soil expert, and hire a new DNA expert. The habeas hearing was held on February 27, 2002. Following the hearing, Moeller *6 requested and was granted leave to add additional claims. The habeas court issued its memorandum opinion denying relief and quashing the writ. After additional arguments and motions, the court also issued Findings of Fact and Conclusions of Law.
Analysis and Decision
[¶ 10.] Because a petition of ha-beas corpus collaterally attacks a final judgment, our review is limited.
Hays v. Weber,
I.
[¶ 11.] Moeller first contends that the habeas court erred when it concluded that the trial court’s decision to admit testimony concerning gahnite was not a trial error that had substantial and injurious effect on the jury’s verdict and thereby deprived him of his rights to due process of law as provided by the state and federal constitutions.
1
In essence, this claim is an attempt to revive an issue presented on direct appeal. In
Moeller II,
we examined whether the trial court abused its discretion in admitting a belated report by Dr. John P. Wehrenberg, the State’s soil expert, and in failing to conduct a
Daubert
admissibility hearing on whether “Wehrenberg’s testimony was scientifically valid and admissible.”
[¶ 12.] Moeller now challenges these decisions on two fronts. First, he alleges that Wehrenberg’s conclusions were “demonstrably false.” Moeller bases his allegation on new expert testimony presented by Dr. Edward Duke who concluded that gahnite was not present in the sample tested by the State’s expert. Second, Moeller alleges that because the grains identified by the State’s expert as gahnite were destroyed before his second trial, he was entitled to an inference that the evidence would not support Wehrenberg’s conclusions.
[¶ 13.] Duke’s analysis has no effect on our earlier decision. The new evidence does not give us reason to reconsider our conclusion that the trial court was correct in refusing to mandate a
Daubert
hearing before Wehrenberg’s testimony and did not abuse its discretion in allowing
*7
the gahnite evidence. Furthermore, Duke’s findings do not change our view that the gahnite evidence was relevant and that Wehrenberg’s testimony rested on a reliable foundation. Duke’s conclusions merely question the weight of the evidence presented by Wehrenberg, not its admissibility. As we stated in
Moeller II,
“there is [still] no evidence in the record that Wehrenberg’s methodology or analysis was so skewed as to alter the otherwise reliable scientific method.”
Id.
¶ 87. At most, Duke’s analysis amounts to new evidence. However, newly discovered evidence is not a sufficient ground for habeas relief where no deprivation of a constitutionally protected right is involved.
Boyles v. Weber,
[¶ 14.] Moeller asks us to declare, on habeas review, that the evidence destroyed by Wehrenberg would not have been favorable to the State. We are not persuaded that Moeller’s right to due process was violated by the destruction of the grains identified by Wehrenberg as gah-nite. While the destruction of this evidence is regrettable, it did not taint Moel-ler’s subsequent criminal trial. We find it difficult to envision a constitutional flaw in the proceedings where no party discovered Wehrenberg’s destruction until eleven years after the event and where, at the time of destruction, Moeller had in his possession comparable evidence.
[¶ 15.] Even if Moeller had discovered the destruction of the evidence before his trial, it does not necessarily follow that he would have been entitled to such an adverse inference. In
State v. Engesser,
we held that an adverse inference should not be drawn from missing evidence unless it was disposed of intentionally or in bad faith.
[¶ 16.] Although Moeller argues that Wehrenberg’s destruction of evidence was more than mere negligence, we are not convinced. In his deposition, Wehrenberg candidly admitted that he destroyed the evidence. He stated that this was necessary because a substance that he used during his analysis was carcinogenic. He indicated that he was under no direction to destroy the evidence, and that, in fact, the State was unaware that he had done so. Moeller seems to argue that the State’s direction to Wehrenberg that he should analyze the grains in a “generalized manner” was tantamount to an instruction by the State to destroy the evidence upon completion of the analysis. However, the habeas court rejected this argument and *8 instead concluded that Wehrenberg’s conduct was negligent and not a calculated effort to destroy exculpatory evidence. We find no fault with the habeas court’s finding. There is simply no support in the record that the destruction of the evidence by Wehrenberg was more than mere negligence. Thus, we see no violation of Moel-ler’s right to due process.
[¶ 17.] Our conclusion that the destruction of the “gahnite” grains does not amount to a violation of Moeller’s right to due process is furthered by the undisputed fact that at the time of the destruction comparable evidence was available for Moeller’s review. True, the samples delivered to Moeller’s expert may not have been the identical samples tested by Weh-renberg, but samples taken from both the crime scene and Moeller’s vehicle were available for analysis. In fact, these samples were sent to Moeller’s soil expert and remained under the control of Moeller’s counsel.
[¶ 18.] Given that the record does not reflect that the State acted in bad faith in the destruction of evidence and given that the destruction did not impair Moeller’s ability to examine comparable evidence, we conclude that Moeller would not have been entitled to an adverse inference even if he had discovered the destruction of the evidence before his direct appeal. Therefore, we find no error in the habeas court’s conclusion that the destruction of the evidence did not amount to a violation of Moeller’s constitutionally protected rights.
II.
[¶ 19.] Moeller next contends that the habeas court erred when it concluded that Moeller was not denied his right to due process of law by the trial court’s instructions concerning life imprisonment without parole. During jury deliberations in the sentencing phase of Moeller’s second trial, the jury asked, “If the penalty of ‘life imprisonment without parole’ should be imposed upon the defendant, will he EVER have a chance to appear before a parole board?” (Emphasis in original.) The trial judge responded, “We acknowledge your note asking questions about life imprisonment without parole. All of the information which I can give you is set forth in the jury instructions.” Moeller argues now that the trial judge was bound to further define “life imprisonment without parole.”
[¶20.] Moeller contends that the Due Process Clause forbids the execution of a prisoner where the trial court refused to give a jury instruction defining the meaning of “life without parole.” His argument is founded on several United States Supreme Court cases mandating that when a defendant is facing the possibility of execution, and a prosecutor argues that the defendant poses a future threat to society, and a trial court refuses to inform the jury whether life imprisonment precludes the opportunity for parole, the defendant’s right to due process has been violated.
See Kelly v. South Carolina,
[¶ 21.] This case is not similar to the ones Moeller cites. As we held in Moeller’s direct appeal, “future dangerousness was not specifically raised as a concern by [the] State.”
Moeller II,
III.
[¶ 22.] Moeller next contends that the habeas court erred in finding no ineffective assistance of trial counsel. Moeller’s first claim in this regard originates from the decision of his trial attorneys not to substantially participate in the Daubert hearing on the admissibility of DNA evidence. After our reversal of Moeller’s original conviction, the trial court established January 13, 1997 as the date for the hearing on DNA evidence. At Moeller’s request, the court rescheduled the hearing for March 3, 1997. On February 19, 1997, Moeller again requested that the court reschedule the hearing. The court denied the request.
[¶ 23.] At the Daubert hearing, Moel-ler’s attorneys stated that they were “totally unprepared” to participate in the hearing, and, as a result, they were not “competently and adequately” representing Moeller. Despite this, the court proceeded with the hearing. Moeller’s counsel presented no expert testimony in defense and conducted only perfunctory cross-examination. As a result of the hearing, the court found that the DNA evidence was admissible under the Dau-bert standard.
[¶ 24.] In response to the continuance request and unpreparedness statement, the trial court issued findings of fact that explained its decision to deny Moeller’s request for a continuance. The court found that the claim of inadequate time to prepare for the hearing was not credible. Furthermore, the court held that the decision of defense counsel “to not call witnesses or examine witnesses at the Dau-bert hearing was a tactical decision made with the intent to create the appearance of error and ineffective assistance of counsel, and not the result of being denied the opportunity to adequately present a defense.” 2 On habeas, Moeller now claims that his attorneys’ strategy was unreasonable and prejudicial.
[¶ 25.] Moeller argues that the proper test here is whether his substantial rights were affected during the hearing because trial counsel was constructively absent during the Daubert hearing. He further argues that our scope in reviewing trial counsel effectiveness is limited to the DNA hearing, a “discrete portion” of the trial. Thus, before proceeding further, we must determine (1) whether the strategy of defense counsel during the hearing amounted to a constructive absence of counsel, and (2) whether the Daubert hearing was a “discrete portion” of the trial.
[¶ 26.] Moeller looks to several cases for support on his contention that he was not afforded assistance of counsel during the Daubert hearing. However, the cases Moeller relies on are not analogous. This is certainly not a case where trial counsel fell asleep during trial or did not attend the entire trial. Instead, as both the habeas and trial courts found, Moel-ler’s trial counsel embarked on a calculated strategy. While its effectiveness may be questioned, certainly Moeller’s representation during the hearing was more than *10 “mere physical presence.” The issue presented here is a question of the effectiveness of assistance of counsel, not the lack of it. Thus, Moeller is not entitled to a presumption of prejudice, as he suggests.
[¶ 27.] Nor are we convinced that we may not look beyond the
Daubert
hearing in determining the effectiveness of trial counsel. Moeller contends that we must narrow our review to only the DNA hearing. He cites
Collier v. Turpin,
[IT 28.] The well-established two-prong test for a claim of ineffective assistance of counsel requires a showing “(1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that such deficiency prejudiced the defendant.”
Coon v. Weber,
[¶ 29.] As a result of the Daubert hearing, the trial court allowed the State to introduce DNA evidence using both APO-B and other markers. It is worth noting initially that even now Moeller presents no testimony or other evidence that might have led to the exclusion of any DNA evidence based on any marker other than the APO-B marker at the Daubert hearing. His failure to challenge that evidence leads us to the conclusion that even if trial counsel had attempted to prevent its admission, they probably would have failed. Thus, Moeller does not realistically demonstrate that the performance of his defense attorneys in regard to most of the DNA evidence was ineffective.
[¶ 30.] From the above, we can reasonably conclude that trial counsel was faced with the realization that even if the APO-B DNA evidence was excluded, the evidence still showed in the remaining analysis that the probability of a person in the Caucasian population having DNA characteristics common to Moeller’s would be 1 in 130 million. While trial counsel did not attack the admissibility of the APO-B DNA evidence, counsel sought during trial to inject reasonable doubt in the minds of the jurors regarding all DNA evidence *11 presented by the State. Defense counsel vigorously cross-examined the State’s DNA experts regarding the methodology, reliability, and control procedures of their testing. Trial counsel obtained an admission from the State’s DNA expert that it had only recently been determined that APO-B DNA evidence was reliable and that no other laboratory had made such a determination. In addition, in closing argument, defense counsel repeatedly referred to the lack of validation procedures, not just for the APO-B DNA evidence, but for all DNA evidence presented by the State. In essence, counsel used the questionable reliability of the APO-B DNA evidence to support an inference that the remaining DNA evidence was equally unreliable. Thus, we cannot say that the strategy to forego a vigorous defense against the admission of the APO-B DNA evidence in the Daubert hearing was ineffective, where the admission of such evidence was effectively challenged at trial.
[¶ 31.] Next, Moeller claims ineffective assistance of counsel because trial counsel failed to test the mineral identified by the State’s expert as gahnite. For this claim, Moeller relies heavily on later testing that concluded that the material found was neither gahnite nor common spinel. However, as we noted above, we review defense counsel performance from their perspective at the time in light of all of the circumstances.
Coon,
[¶32.] At trial, Moeller’s soil expert testified that ancient glaciers moving through what is now South Dakota deposited the soils now found in the Minnehaha and Lincoln county areas. Moeller’s expert also opined that soils found throughout the eastern part of the state would be substantially similar. Moreover, the expert explained that any mineral deposit, such as gahnite, if found in a specific area of the state would likely be found in other areas of the state due to the manner in which the soils were deposited. Lastly, the defense expert testified that the mineral found by the State’s expert was more likely common spinel, a rare mineral, though not as rare as gahnite.
[¶ 33.] From the testimony, it is clear that instead of attempting to show that the mineral was common spinel rather than gahnite, defense counsel chose to proceed with a theory that the State’s expert was mistaken in his conclusion that a soil analysis could isolate any locale in the eastern part of the State. Trial counsel argued that it was irrelevant whether the mineral found was gahnite because, as the defense expert testified, whether the soil was found in Lincoln, Lake, or Minnehaha County, “It’s all similar.” Proceeding under such a theory was neither unreasonable nor ineffective.
IY.
[¶ 34.] Moeller argues that the habeas court erred when it concluded that the trial court’s decision to admit APO-B DNA evidence was not a trial error that had substantial and injurious effect on the jury’s verdict and deprived Moeller of his right to due process of law as provided by the Constitutions of the United States and South Dakota. At the onset, we note that the habeas court ruled that Moeller showed no error on the part of the trial court in admitting the disputed DNA evidence.
[¶ 35.] Moeller argues that the trial court failed to exercise its gatekeeping function when it admitted the APO-B DNA testing results because the evidence was not sufficiently reliable. Moeller points to the fact that “Moeller II [is] the only reported decision in which APO-B was determined reliable enough to be admissible.” He called an expert who “testi- *12 fíed that the use of APO-B for forensic applications was not generally accepted in the forensic eommunity[.]” Moeller further asserts that the validation process used by the State’s DNA expert was insufficient and incomplete. Finally, Moeller argues that as a result the State was able to present evidence that “when the APO-B frequency was included with the other [DNA] markers the likelihood [that Moel-ler was the perpetrator] went into the range of 1 in 14.8 billion, or a virtual certainty that Moeller was the perpetrator.” This Moeller argues was clearly prejudicial.
[¶ 36.] Trial courts have broad discretion in determining whether to admit expert testimony.
State v. Weaver,
[¶ 37.] An assertion that we must find error in the admission of the APO-B DNA evidence merely because no other reported decision has deemed it admissible is immaterial. While prior admission of similar evidence in other jurisdictions may assist a trial judge in determining whether to admit evidence, we do not see the lack of reported precedent as an outright impediment against admission.
[¶ 38.] In regard to the validation process, Moeller contends that (1) the State’s expert failed to deliver to Moel-ler certain documents regarding the validation process, (2) untrained personnel (students) conducted the validation, and (3) the validation studies were not complete before the testing. The habeas court specifically rejected each of these assertions in its Findings of Fact and Conclusions of Law. The habeas court found:
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19.
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p. Moeller’s' belief that validation reports were never turned over to the defense and were discarded by Dr. Schanfield stems from his confusion over:
i.
ii.
iii. The time frame of the initial validation studies and what occurred thereafter in relationship to the second trial.
iv. Work done with students to determine whether laboratory models could be duplicated with some relative ease.
q. Merely because Moeller is confused about some of the data or what its *13 implication might be does not imply that it was never disclosed.
r. This Court is left with the firm impression that all available APO-B material and information had been disclosed during discovery leading up to the second trial.
s. [The State’s expert’s] validation information was published, and that certainly preserved the information Moeller now seeks.
t. While the Court is of the opinion that discovery of APO-B material was adequate and court orders satisfied, nothing satisfies Moeller. After giving him everything required, he wants more even when his hired expert concluded that some of it was unnecessary. Having received everything directly involved in testing the samples in this case, Moeller wants to go back further to ask for data from an earlier time. It is not necessary. This approach is consistent with Moeller’s past approach of attacking [the State’s expert].
20.
* * *
c. Being peer reviewed is only one criteria to look at. That was satisfied at the 1997 Daubert hearing.
d. In the years between 1992, when Dr. Schanfield was working on APO-B studies, and 1997, when the second trial began, Dr. Schanfield continued his work on APO-B markers. By the retrial in Moeller II, Dr. Schan-field had presented his validation studies on APO-B at regional forensics meetings.
e. There is a disagreement within the DNA community about APO-B markers.
i. Dr. Eisenberg has a strong, subjective opinion about the validity of APO-B as a useful DNA marker. However, she never read AGTC’s presentation of their validation studies. Dr. Eisenberg was not even sure whether she needed to review the database gels used by AGTC. She had not read the Daubert hearing record; as a result, she did not have a full understanding for Dr. Sehanfield’s opinion. Dr. Eisenberg indicated that even the bioblots would not be necessary for her review. Rather, what concerned her was her fundamental, subjective belief that APO-B was not a good, reliable marker despite contrary testimony.
ii. Dr. Robin Cotton of Cellmark Labs testified at the Daubert hearing that there is no particular objection to the APO-B marker, and APO-B is a perfectly good marker.
[¶ 39.] Moeller presents nothing that might lead us to the conclusion that these findings are clearly erroneous. He rests his assertion on the rejected testimony of his expert at the habeas hearing, testimony refuted by the State’s DNA expert. Therefore, we see no reason to disturb the habeas court’s findings.
[¶ 40.] The validation process conducted by the State’s expert may not have satisfied every critic; however, that is not the standard. In determining the reliability of scientific testimony, we have oft pointed to the non-exhaustive list of guidelines delineated in
Daubert. See Weaver,
*14 (1) whether the method is testable or falsifiable; (2) whether the method was subjected to peer review; (3) the known or potential error rate; (4) whether standards exist to control procedures for the method; (5) whether the method is generally accepted; (6) the relationship of the technique to methods that have been established as reliable; (7) the qualifications of the expert; and (8) the non-judicial uses to which the method has been put. (Internal citations omitted.)
Id.
The fundamental error in Moeller’s argument is that he now wishes to interpose certain scientific standards of validation on our
Daubert
guidelines of admissibility. For example, Moeller apparently believes that because certain standards in the DNA community dictate that peer review be conducted before testing a sample, the
Daubert
guideline that a method be subjected to peer review must not have been met. Expert testimony need only be based on a “reliable foundation.”
Weaver,
[¶ 41.] In furtherance of our belief that the trial court did not err in admitting the disputed DNA evidence, we note that the habeas court effectively conducted what might be referred to as a “post-conviction” Daubert hearing. During the habeas hearing, Moeller’s DNA expert was allowed to testify at length on problems she perceived in the APO-B testing. However, even at this stage, Moeller’s expert was unable to convince the habeas court that the evidence based on the APO-B marker failed to meet our admission standards. All the habeas court found was that there is disagreement in the DNA community on whether APO-B is a valid marker. Again, perfect agreement is not a prerequisite to admission of scientific evidence.
V.
A. Prosecutorial Discretion
[¶ 42.] Moeller contends that the habeas court erred when it concluded that failure to follow the procedures outlined in SDCL 23A-27A was not a structural error affecting the entire trial process depriving him of his rights to due process and equal protection of the law, and violating the doctrine of separation of powers as provided by our state and federal constitutions. Unquestionably, the State in the exercise of its discretion may choose whether to prosecute individuals and what charges to bring against them. There is also no question that this general principle extends to the prosecution of a person suspected of committing a crime for which the penalty, upon conviction, is either life imprisonment or execution by lethal injection. The question before us here is this: does the State, in addition to having the discretion to decide that it will seek the conviction of a person for a capital crime, also have the discretion to decide whether it will seek the death penalty in a given case? Moeller argues that allowing the State such discretion violates our statutes and the Due Process and Equal Protection Clauses of the Fourteenth Amend *15 ment. 3 Our answer to this question has important consequences for, among other things, the size of the pool of cases considered when fair proportionality of sentencing is challenged.
[¶ 43.] SDCL Chapter 23A-27A provides the statutory scheme for the prosecution of capital crimes. A review of the initial sections, quoted in part, will clarify the context of the question. According to § 23A-27A-1, “in all cases for which the death penalty may be authorized, the judge ... shall include in instructions to the jury for it to consider, any mitigating circumstances and any of the [ten] aggravating circumstances which may be supported by the evidence.... ” SDCL 23A-27A-2 provides: “In all cases in which the death penalty may be imposed and which are tried by a jury, ... the court shall resume the trial and conduct a presentence hearing before the jury.” Id. (emphasis added). (The meaning of the “may” in that statute is that the imposition of the death penalty lies within the jury’s limited discretion. The limitation of that discretion is provided by § 23A-27A-4: “If, upon a trial by jury, a person is convicted of a Class A felony, a sentence of death shall not be imposed unless the jury verdict at the presentence hearing includes a finding of [1] at least one aggravating circumstance and [2] a recommendation that such sentence be imposed.” (enumeration added).) SDCL 23A-27A-2 continues: “Such hearing shall be conducted to hear additional evidence in mitigation and aggravation of punishment. At such hearing the jury shall receive all relevant evidence, including: (1) Evidence supporting any of the aggravating circumstances listed under § 23A-27A-1; ... [and] (4) All evidence concerning any mitigating circumstances.” Then, according to § 23A-27A-3, the jury, after argument of counsel in the. presentencing hearing, “shall retire to determine whether any mitigating or aggravating circumstances ... exist.”
[¶ 44.] Moeller relies on
dictum
from
State v. Clothier,
*16 The procedure for ascertaining the punishment and possible imposition of the death penalty ... is provided by SDCL [Chapter] 23A-27A [ ]. 5 Nothing in this [Chapter] authorizes the prosecutor or judge to determine the penalty prior to a guilty verdict. The procedure is provided in SDCL [Chapter] 23A-27A [], which should be followed in capital cases.
Id. at 258. In a footnote, the Court went on to state:
If the prosecutor has a recommendation, he may state it at the presentence hearing provided by SDCL 23A-27A-2. There may be situations where the State has no evidence of aggravating circumstances proscribed in SDCL 23A-27A-1 to justify the death penalty; but, SDCL 23A-27A-3 indicates the jury is to determine the mitigation or aggravation, unless it is a nonjury case, then the judge conducts the presentence hearing. SDCL 23A-27A-6.
[¶ 45.] First, we must repeat that this conclusion in
Clothier
cannot be understood as other than
dictum.
Since, as the
Clothier
court noted, “the penalty issue for first-degree murder was rendered moot when the jury failed to find him guilty of that charge,” the issue was not properly before it.
Clothier,
[¶ 46.] Second, an aggressive reading of these passages in
Clothier,
such as Moeller proposes, would result in absurdity. Suppose, for example, that, in
Clothier,
the jury had convicted the defendant of first-degree murder. The putative holding in
Clothier
would require that the verdict be thrown out because the option of death had been illegally eliminated, even though there was no evidence offered or sought to be offered in support of it. Worse, this reading of the statute, that both the State and the defense are obliged to present evidence (because “the jury
shall
receive” “all relevant evidence” and
shall
hear “[a]ll evidence concerning any mitigating circumstances”), is impossible, for it contravenes the fundamental principle that the defense cannot be required to present any evidence whatever. SDCL 23A-27A-2 (emphasis added).
See
U.S. Const, amend. V. Moreover, the
Clothier
Court’s suggestion that the prosecutor can only state a recommendation in the sentencing phase has no basis in the statutes, including the one the Court cites for it. To follow
Clothier’s dictum
literally, removing all prosecutorial discretion in assessing the facts to support a death penalty sentence, would radically transform our system into a process “totally alien to our notions of criminal justice.”
Moeller I,
[¶ 47.] Turning to the individual sections, then, one finds that § 23A-27A-1 requires the judge to include in instructions to the jury that it consider any mitigating circumstances and any of the ten aggravating factors “which may be supported by the evidence.” SDCL 23A-27A- *17 1 (emphasis added). SDCL 23A-27A-1 refers to the situation obtaining before the jury retires to consider the question of guilt, and the “may” refers to the possibility that the evidence will support a mitigating or aggravating factor and at the same time implies that instructing the jury on that possibility lies within the discretion of the judge. That is, the trial court, not the prosecution, makes the initial decision whether the jury is to receive instructions on the mitigating or aggravating factors to be considered in the determination of guilt.
[¶ 48.] SDCL 23A-27A-2 takes effect only after the jury has returned a verdict of guilty. At that point, the jury hears “additional evidence in mitigation and aggravation of punishment. In such a hearing, the jury shall receive all relevant evidence, including ... [ejvidence supporting any of the aggravating circumstances listed under § 23A-27A-1” as well as “[a]ll evidence concerning any mitigating circumstances.” Id. (emphasis added). At this point, the discretion of the parties and the trial court is limited to the latter’s determination of the relevance of proffered evidence: the court is obliged to allow (for “the jury shall hear”) both the State and the defense to present “all relevant evidence.” That is, the court shall allow the prosecution to present all relevant evidence supporting any of the aggravating factors, and the defense to present all relevant evidence concerning any mitigating factors. Relevant evidence includes “[e]vi-dence supporting any of the aggravating” factors and “all evidence concerning any mitigating circumstances.”
[¶49.] We assume that statutes mean what they say.
South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exch.,
[¶ 50.] Revisiting
Clothier’s
dictum with the preceding analysis in hand, we can now state that its interpretation was off the mark in declaring that “[n]othing in this [Chapter] authorizes the prosecutor or judge to determine the penalty prior to a guilty verdict.”
[¶ 51.] As for Moeller’s constitutional challenge to the prosecution’s discretion in seeking the death penalty, we adhere to our holding in
Moeller II
that “[selective enforcement of SDCL 23A-27A-1 and 22-16-4 is insufficient to show that the statutes have been unconstitutionally applied to a specific defendant, absent a showing that the particular selection was deliberately based on an unjustifiable standard such as race, religion or other arbitrary classification.”
B. Proportionality Review
[¶ 52.] In
Rhines,
this Court set forth its interpretation of proportionality review in capital cases.
[¶ 53.] As we stated in our discussion of Moeller’s other issue, there was no illegitimate prosecutorial discretion involved here in the decision whether to seek the death penalty. Since there is no illegitimate discretion, there can be no element of arbitrariness. We see no compelling reason here to retrace that discussion — or its predecessors in Rhines and Moeller. Accordingly, we hold that our treatment of proportionality review is constitutional. 7
VI.
[¶ 54.] Moeller argues that the habeas court erred when it concluded that the process by which Moeller was charged, convicted, and sentenced to death was not defective in some substantial form required by law. Moeller relies on the Su
*19
preme Court’s decision in
Ring v. Arizona,
[¶ 55.] Even if we were to conclude that the Court’s decision in
Ring
was applicable here, we do not believe that the new rule would provide relief. South Dakota’s Constitution permits a charge to be brought by indictment or information. SD Const, art. VI, § 10. To gain a thorough grasp of the holding in
Ring,
we must examine two earlier decisions. The first was
Jones v. United States,
[¶ 56.] Adhering to its holdings in
Jones
and
Apprendi,
the Supreme Court in
Ring
struck down Arizona’s capital sentencing structure. There, in an opinion authored by Justice Ginsburg (joined by Justices Stevens, Scalia, Kennedy, Souter and Thomas), the Court held that in examining alleged aggravating factors that would justify imposing the death penalty requires a jury, not a judge, to find the existence of such factors beyond a reasonable doubt.
See Ring,
[¶ 57.] Moeller believes that the federal constitution, as interpreted by the Supreme Court in these three recent decisions, makes unconstitutional South Dakota’s procedure in giving the statutory aggravators through means other than in an indictment. In
Ring,
the Court held that because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” the Sixth Amendment requires that they be found by a jury.
*20
[¶ 58.] We reject these arguments for three reasons.
8
First,
Ring
did not hold that indictments in capital cases must allege aggravating and mental state factors.
See id.
at 597 n. 4,
[¶ 59.] Second, although the State did not allege its statutory aggravating circumstances in the indictment, it gave Moeller advance formal notice of which statutory aggravators it was going to rely on in its written notice of intent to seek the death penalty. The notice was given on September 3, 1996, and the jury was sworn in on April 28, 1997, some eight months later. The Court in Jones;
Ap-prendi,
and
Ring
dealt with the indispensable role of the jury in deciding criminal eases.
10
These cases did not address
*21
whether notice of an aggravating factor had to be conveyed to the defendant only by means of an indictment or information, as opposed to some other means. We are satisfied that the holdings in these three cases have not been transgressed here.
11
The notice of aggravating factors given to Moeller was sufficient. Other state courts have held likewise.
See Terrell v. State,
[¶ 60.] Third, it must be kept in mind that this is a state criminal case. In
Hurtado v. California,
[¶ 61.] Insofar as Moeller had considerable advance notice of the aggravating factors to be considered in the sentencing phase of his case and the jury considered those factors and found them to exist beyond a reasonable doubt,
Ring’s
holding, if applicable, has been followed here. Our analysis is bolstered by the Supreme Court’s recent decision in
Blakely v. Washington
, — U.S. -,
[¶ 62.] Affirmed.
Notes
. Gahnite is a rare mineral. According to Perry Rahn, Moeller’s soil expert in his second trial, gahnite is less common than gold. At trial, Dr. Wehrenberg testified that he found gahnite in both the wheel well of Moel-ler’s pickup and at the crime scene.
. In
Moeller II,
this Court determined that the trial court "did not abuse its discretion in denying his motions for a continuance.”
. We review constitutional questions
de novo. State
v.
Dillon,
.
Dictum
is the abbreviation for
"obiter dictum,”
the plural being
"obiter dicta." Dicta
are pronouncements in an opinion unnecessary for a decision on the merits. As Chief Justice Marshall explained in
Cohens v. Virginia, dictum
should be avoided because, among other reasons, it is usually made through inadequate effort in its formulation.
. The Clothier opinion mistakenly cites SDCL 23A-27A-10, rather than the entire chapter 23A-27A, in this and the next sentence.
. Of course, the case may not go to trial if the defendant has agreed to plead guilty to a lesser charge.
. Moeller cites to
Palmer v. Clarke,
.Federal courts have come down on both sides of the question.
See e.g., United States v. Lentz,
225 FSupp2d 672, 675 (E.D.Va.2002) ("[T]he Supreme Court did not mandate that a fact that must be found to increase punishment beyond that authorized by the jury verdict constitutes an actual element of a new substantive crime. All
Ring
stands for is that any factual determination necessary to impose the death penalty must be found by a jury beyond a reasonable doubt”). "Defendants are correct that, in light of
Ring v. Arizona,
. This was Justice Scalia's understanding of the holding as well.
See e.g., Ring,
. The Court noted that of the thirty-eight states that impose the death penalty, twenty-nine states, including South Dakota, "commit sentencing decisions to juries.”
Ring,
. Moeller asks us to attribute some legal significance to the Eighth Circuit case of
United States v. Allen,