William L. Gray was found guilty by a jury of two counts of first degree murder, I.C. § 18-4003, and one count of first degree burglary, I.C. §§ 18-1401, -1403. On appeal, Gray alleges multiple errors by the district court and by his trial counsel and seeks reversal of his judgments of conviction. The state cross-appeals, claiming that the district court relied upon inappropriate factors in sentencing. We affirm.
I.
FACTS AND PROCEDURE
In the early morning hours of July 24, 1989, Gray’s wife, Betty Gray, and her friend, Reeda Roundy, were killed in Roundes house in Idaho Falls. In 1992 Gray was indicted for two counts of first degree murder and one count of first degree burglary.
On May 11,1993, Gray went to trial before a jury. The prosecution argued that Gray killed Betty because he was aware that she was having an affair. The prosecution further alleged that, to prevent his motive for her murder from being discovered, Gray had asked Betty not to discuss their impending divorce with their family and friends. The prosecution contended that Gray had purchased an International Travelall vehicle, which he registered in someone else’s name, with the intent to avoid use of his usual vehicle and thereby conceal his presence at the scene of the crime. The prosecution attempted to prove that Gray drove the Travelall from the Grays’ home in Jackson Hole, Wyoming, to the Eastern Idaho Regional Medical Center in Idaho Falls on an evening when Betty was staying overnight with Roundy. Gray allegedly then rode a bicycle approximately three and a half miles to Roundy’s house. The prosecution’s theory continued that Gray killed both women and set the scene in the house to appear as though the killings were committed as part of a satanic ritual. After the killings, Gray then rode the bicycle back to the hospital.
The defense alleged that Gray was unaware at the time of Betty’s death that she was having an affair. Gray contended that he could not have ridden a bicycle for seven miles due to his poor health. He also asserted that one of three other men associated *791 with the two victims was responsible for the murders.
Following trial, the jury returned a verdict of guilty on two counts of first degree murder and one count of first degree burglary, with each of the crimes being enhanced for the use of a firearm. Gray was sentenced to two determinate life sentences for first degree murder and ten years, with a minimum period of incarceration of five years, for first degree burglary.
II.
ANALYSIS
A. Hearsay Statements
Gray filed a motion in limine seeking to exclude hearsay statements made by Betty regarding her husband, their marriage, their impending divorce and her affair. The district court granted Gray’s motion in part and denied it in part.
The trial court has broad discretion in deciding whether to admit hearsay under one of the many exceptions to the general rule that hearsay is inadmissible. This Court will not overturn the exercise of that discretion absent a clear showing of abuse.
State v. Zimmerman,
1. Betty’s statements
(a) I.R.E. 803(24) hearsay exception and Confrontation Clause
Among the statements reviewed by the district court prior to trial were three statements which the district court admitted pursuant to I.R.E. 803(24). 1 Gray contends on appeal that the district court erred in admitting these statements and that their admission violated his rights pursuant to the Confrontation Clause of the United States Constitution.
The first inquiry must be whether the statements were hearsay, that is, whether they were out-of-court statements offered as an assertion of proof of the matters asserted therein.
State v. Gomez,
Idaho Rule of Evidence 803(24) creates an exception to the inadmissible hearsay rule for:
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
*792
The district court examined statements identified as C, F and G and determined that they were being offered to prove the truth of the matters asserted therein and were, therefore, hearsay. The district court further determined that each statement was relevant to a material fact, was more probative than other evidence available to the prosecution, and its admission would promote the interests of justice. The district court reviewed each statement, found circumstantial guarantees of trustworthiness and, through the use of reason and application of the appropriate legal standards, deemed the evidence admissible.
See Hedger,
Once a statement is determined to be hearsay, even if it is found to be admissible due to an exception to the hearsay rule, a criminal defendant’s rights pursuant to the Confrontation Clause of the Sixth Amendment of the United States Constitution must be addressed. In
Ohio v. Roberts,
Idaho Rule of Evidence 803(24) has been specifically addressed by the United States Supreme Court in relation to the Confrontation Clause. In
Idaho v. Wright,
In this case, the district court determined that the context in which the statements were made provided guarantees of trustworthiness sufficient to assuage concerns regarding reliability and prevented a violation of the Confrontation Clause.
See State v. Giles,
(b) State of mind exception
In addition to the hearsay statements admitted under I.R.E. 803(24), the district court also admitted statements made by Bet *793 ty prior to her death pursuant to I.R.E. 808(3). During a hearing on Gray’s motion in limine, JoAnn Buceóla, Betty’s sister, testified that, prior to her death, Betty made certain statements to her which were identified by the district court as statements B. 2 The district court deemed Betty’s statement that she was having an affair with Leavitt a statement of fact, and therefore, not within the state of mind exception to the hearsay rule. The district court ruled that this statement was inadmissible. The remaining statements designated as B were deemed to fall within the I.R.E. 803(3) hearsay exception as expressions of the declarant’s state of mind. The district court ruled, however, that they were only to be admitted if the defense first made them relevant by claiming that Betty and William Gray were happily married. Gray argues that the statements were admitted in error.
At trial, Gray’s defense counsel inquired into the happiness of the Gray marriage while questioning the Grays’ son, Jeff. Gray placed the happiness of his marriage at issue through cross-examination of a witness for the state. Betty’s state of mind regarding her marriage thereby became relevant to Gray’s defense against the charges. Gray argues, on appeal, that these statements did not bear “particularized guarantees of trustworthiness.” However, the district court did not admit the statements under I.R.E. 803(24), which requires such a showing of trustworthiness. Instead, the district court admitted the statements under the firmly rooted hearsay exception I.R.E. 803(3).
See Terrovona v. Kincheloe,
(c) Statements found inadmissible
In addition to the statements which the district court reviewed prior to trial and found admissible, the district court also reviewed statements H, I and J, 3 which were held to be inadmissible. Gray claims Buceola’s statement, that the “doctors had told him that he should start doing mild exercises and walking,” was admitted in violation of the district court’s grant of the motion in limine as to statement I. However, the statement admitted at trial does not contain the elements of Gray’s abuse of his kidney or his refusal to perform the exercises. Hence, the district court’s order regarding statement I was not violated.
Gray did not object to the remaining testimony which he now claims was admitted in violation of the pretrial order. Statement J, which had been deemed inadmissible in the decision on Gray’s motion in limine, came into evidence for the first time upon Gray’s questioning of Buceóla. During direct examination, Buceóla mentioned that Gray “was looking at telephone bills and she did not want him to see my number on the phone bill,” in violation of the district court’s order in limine on this issue. Gray elicited the same statement from Buceóla during cross-examination.
The denial of a motion in limine generally preserves an issue for appeal.
State v. Babb,
Even where a pretrial motion preserves an evidentiary objection for appeal, the defense may waive the objection during trial.
Davidson,
2. Reeda Roundy’s statements
Gray appeals from the district court’s order excluding statements by Roundy that she was fearful of her ex-boyfriend, that he was a mercenary, that he followed her around and repeatedly telephoned her, and that he had threatened to kill her. The district court excluded these statements on the basis that they were hearsay not admissible within an exception to the hearsay rule.
As noted above, the first inquiry must be whether the statements were hearsay, that is, whether they were out-of-court statements offered as an assertion of proof of the matters asserted therein.
Isaacson,
The district court determined that Roundy’s fear of a person not related to the prosecution was irrelevant. We review questions of relevancy de novo.
State v. Raudebaugh,
[A]ny 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;
State v. Hocker,
A victim’s fear of an individual is relevant in only limited circumstances.
See
John W. Strong, McCORMICK ON EVIDENCE § 276, at 244 (4th ed. 1992). Purposes for which such statements are relevant include: establishment of a motive for the crime charged,
State v. Charboneau,
The statements regarding Roundy’s ex-boyfriend’s occupation and behavior do not fall within I.R.E. 803(3) because they do not describe a then-existing mental, emotional or physical condition. I.R.E. 803(3). The district court also considered I.R.E. 803(24) as an alternate theory of admissibility. As discussed earlier, I.R.E. 803(24) requires that the trustworthiness of the statement must be shown from the totality of the circumstances that surround the making of the statement.
Wright,
B. Excluded Evidence of Roundy’s Involvement in the Occult
On the night of the murders, eighteen red candles were burned in a circle on Roundy’s countertop, and a satanic message was written on Roundy’s countertop in blood. Gray attempted to introduce evidence that Roundy practiced tarot card reading and astrology. He averred that a nexus existed between the practices of tarot, astrology and satanism. Gray argued that the evidence of Roundy’s involvement in such practices was admissible to explain the candles and message. Gray asserted that the tie to satanism may have led the jury to believe that someone involved in satanic practices with Roundy had committed the murders. The state argued that the practices of tarot card reading and astrology are not linked to satanism and, as such, Roundy’s pastimes were irrelevant. The district court excluded the evidence as irrelevant. Gray argues on appeal that the exclusion of this evidence was error.
As noted above, appellate review of a trial court’s finding of relevancy is de novo.
Raudebaugh,
Because there is no evidence that tarot and astrology are more likely to be practiced by satanists than by persons who are not satanists, evidence that Roundy practiced tarot and astrology is irrelevant. Accordingly, such evidence is not admissible under Rule 401, I.R.E.
We find the district court’s analysis in this regard persuasive. In answer to the state’s motion for exclusion, no evidence was presented supporting the notion that a tarot card reader or reader of astrology is more likely than other individuals to be involved in satanic practices. Hence, we affirm the district court’s exclusion of evidence regarding Roundy’s participation in tarot card reading and astrology.
C. Photo Lineup
Prior to trial, Gray sought to suppress the eyewitness identifications by three witnesses *796 for the prosecution. Patty Donbeck and Greg Black (a local police officer) reported seeing a man riding a bicycle between the murder scene and the Eastern Idaho Regional Medical Center in Idaho Falls on the night of the murders. Steve Mackley, a security guard for the hospital, was on duty that night and reported seeing a man ride a bicycle into the hospital parking lot and place it in a Travelall. The police showed these three individuals a photo lineup from which each chose Gray’s photo as the man on the bicycle. Mackley later saw Gray at the hospital and again identified him, in person, as the individual from the parking lot on the night of the murders. The district court granted Gray’s motion to suppress the identification by Donbeck and denied the motion as to Black and Mackley. Officer Black testified at trial that he was unsure if Gray was the individual he saw that night. Mackley testified regarding his prior identifications and also made an in-court identification of Gray as the man he had seen in the parking lot. Therefore, Gray only challenges the district court’s refusal to suppress the identifications by Mackley. Gray argues that the photo lineup shown to Mackley was impermissibly suggestive and conducive to irreparable mistaken identity and that admission of Mackley’s identification of Gray’s photo therefore violated Gray’s rights to due process. He further argues that the later identifications were tainted by the suggestive photo lineup and were, therefore, also inadmissible.
In applying constitutional standards to the facts found, our review of a claim of due process violation is one of free review.
State v. Weber,
The suggestiveness of a photo lineup is to be determined by applying a totality of the circumstances test.
Id.
at 162,
A lineup may be considered unduly suggestive if a witness’s attention is focused on the defendant.
State v. Hyde,
Gray contends that the photo lineup displayed to Mackley was flawed. Mackley knew the individual in photo six and was therefore shown, in essence, a five-photo lineup. Gray argues that because his picture bore a pink tint while the others carried a green or white tint, Mackley’s attention was drawn to Gray’s photo. He further argues that only he and one of the other four individuals unknown to Mackley wore glasses and that the other individual’s glasses were sunglasses while his were reading glasses. Gray argues that this difference is important because in his statement to the police Mackley reported that the individual he saw in the hospital parking lot on the evening of the murders looked over his glasses while speaking to him. Gray further argues that he was the only individual in the photo lineup smiling.
The district court, in reviewing Gray’s arguments regarding the lineup, determined that the lineup was not impermissibly suggestive. The district court found:
In the present case, two of the men in the photographs appear to be the same age as Gray, and the rest appear to be no more than ten to fifteen years younger. All of the men in the photographs have receding hairlines, and four out of the six have facial hair. In addition, every person photographed appears to be the same race. Further, three of the persons pictured have grayish dark hair like Gray’s. Therefore, even though Gray and the person in photograph six are the only ones who are wearing reading glasses and smiling, it cannot be said that the members of the photo lineup differ dramatically from one another.
The use of only five photos in a lineup is not necessarily suggestive.
Hyde,
The first factor to consider in determining the reliability of Mackley’s identification is his opportunity to view Gray. Mackley testified that the lighting in the parking lot was dim, that he had a flashlight but did not shine the light directly in the man’s face and that the man never looked directly at Mackley during the conversation. However, Mackley also testified that he and the man held a conversation of some length. Their discussion included who the man was, whose vehicle it was and where the man was going.
The degree of the witness’s attention is the second factor. Mackley was working as a security guard at the time he saw the man in the parking lot. He viewed the man as an intruder and a possible danger to the hospital or cars parked there. Mackley, therefore, was an attentive observer. The third factor is the accuracy of Mackley’s description. Mackley’s description of the man he saw in the parking lot was, on a whole, accurate, but for the fact that Mackley did not report any facial hair. As the district court noted, in light of Mackley’s failure to describe the man as one with facial hair, his description, as compared to Gray’s appearance, was only fairly accurate. The fourth factor in determining the reliability of Mackley’s identification is the level of certainty regarding the identification. Mackley was quite certain that the photograph of Gray was that of the man with whom he talked in the parking lot of the hospital. The fifth factor is the time span between the observation and the identification. Here, that time period was three days, which does not detract from the reliability of the identification.
*798 Applying the five-factor test, Maekley’s identification of Gray was sufficiently reliable to outweigh the low level of suggestiveness in the identification procedures. Therefore, its admission was not error and it did not taint the later identifications made by Mackley.
D. Lay Opinion Testimony
1. Admission of lay opinion
Gray contends that the district court erred in admitting the testimony of four lay witnesses regarding their opinion that Gray murdered Betty and Roundy. The state argues, first, that any error in this regard was not preserved on appeal by timely objection at trial. The state further argues that the opinions of the witnesses were not offered to prove Gray’s guilt but, rather, were offered to explain certain relevant actions by the witnesses themselves.
Gray acknowledges that his counsel did not object at trial to the statements which he now contends were admitted in error. As a general rule, in the absence of a timely objection to an alleged error at trial, the error will not be reviewed on appeal.
State v. Sharp,
Gray claims that the inadmissible opinion testimony was presented by four witnesses: Jeff Gray, Sara Hoffman, Detective Rodriguez and Kim Gray. Prior to testimony by any witness, defense counsel presented his opening statement. In the opening statement he alluded to a financial motivation for Gray’s children to give damaging testimony:
You’ll hear a lot about the civil lawsuit. The civil lawsuit was a lawsuit in which the children sought to get the insurance proceeds on their mother’s policies and other properties.
There was a lawsuit for more than a half a million dollars. The money was on the table and you will hear a lot about that case.
Finally in the fall of 1990, more than a year after these murders, Sara Hoffman decided to take matters in her own hands. She will testify that she was dissatisfied with the fact that her father has not been charged with these murders. She was prodded by her aunt, JoAnn Buceóla.
JoAnn never really cared for Bill, and so Sara sought the advice of legal counsel. On December 18th, 1990 she hired — or prior to that she hired [an attorney].
The suit was initiated at a time when Sara Hoffman had her second child and was living in a trailer home. The suit was initiated at a time when Jeff was in school, had student loans, and was anticipating going into private practice upon his graduation. They sued when there was money on the table.
In answer to the defense’s theory of the case, already clear from opening statements, the prosecution sought to identify Jeff Gray’s motivation for testifying at trial. During direct examination of Jeff, the prosecution explained this line of questioning, which Gray now claims was error, saying, “It’s been suggested in this courtroom maybe three hours ago, that you were only in it for the money because of your student loans,” and “Your motives have been discussed a little bit for filing the suit.” Hence, evidence of Jeffs opinion was admissible as evidence of his motivation for testifying and credibility at trial.
*799 During cross-examination, defense counsel asked Jeff about his financial situation, the insurance proceeds from his mother’s death, the civil lawsuit and the lawsuit’s eventual settlement. When Sara Hoffman, the Grays’ daughter, took the witness stand, the children’s motivation for testifying was even more at issue than during Jeff’s direct testimony. Sara provided testimony similar to that of her brother regarding her rationale for testifying against her father. The above analysis applies to Sara’s testimony as well, and, thus, her testimony was admissible.
In the direct examination of Kim Gray, the Grays’ daughter-in-law, she testified that after she viewed Betty’s body, Gray did not ask about its condition. Kim concluded that Gray had already seen the body. Gray contends that this testimony implies Kim’s opinion that Gray was guilty. The testimony by Detective Rodriguez, which Gray now challenges on appeal, was elicited by defense counsel during cross-examination and indicated Rodriguez’s belief that Gray was involved. 5
The jury properly heard the opinion evidence by Gray’s children admitted for the purposes of showing their motivation for testifying and establishing credibility. We need not determine whether the testimony by Rodriguez and Kim was inadmissible. Any error in its admission was harmless in light of the other, admissible, evidence on the same point already before the jury. Hence, Gray is not entitled to relief on appeal pursuant to this claim.
2. Ineffective Assistance of Counsel
Gray argues that trial counsel’s failure to object to the lay opinion testimony complained of above fell below the level of representation required by law and prejudiced him by contributing to his conviction. The state argues that even if the evidence was improperly admitted, the error does not merit relief on appeal.
Although it is well established that ineffective assistance of counsel claims are preferably brought through an application for post-conviction relief, if it is clear from the record that trial counsel was ineffective, the claim may properly be raised on direct appeal.
See State v. Allen,
Gray argues that his trial counsel should have objected to inadmissible opinion testimony of four witnesses: Detective Rodriguez, Kim Gray, Jeff Gray and Sara Hoffman. Gray contends that these four witnesses testified regarding their opinion of his guilt and that his defense counsel was ineffective in failing to object to the testimony. Gray argues that the testimony in this case was inadmissible lay opinion testimony.
See
I.R.E. 701;
State v. Walters,
*800
As noted above, the testimony by Jeff Gray and Sara Hoffman was admissible. If a motion or objection lacked merit and would have been denied, counsel ordinarily would not be deficient for failing to pursue it and concomitantly, the defendant could not have been prejudiced by the want of pursuit.
See Huck v. State,
The testimony by Detective Rodriguez was elicited by defense counsel during cross-examination. Hence, it was not counsel’s failure to object, but rather his active questioning of Rodriguez that led to the statement. Gray has failed to address the area of counsel’s conduct which led to the admission of this testimony. Further, the question asked by defense counsel addressed when the investigation focused on Gray. Rodriguez chose to explain the sequence of events and reasons more fully than counsel may have anticipated or desired. However, asking the question was not deficient performance and therefore does not fall outside the wide range of professional conduct.
Gray claims that his counsel was ineffective in failing to object to Kim Gray’s testimony. The prosecution discussed Kim’s viewing and identification of Betty’s body and asked Kim whether people had approached her afterward to inquire about the condition of the body. The prosecution then asked Kim who had not done so, to which Kim responded that “actually, I found it very peculiar that [Gray] did not ask me what I had seen until I realized that he knew what I saw.” The statement was not responsive to the question and defense counsel had no notice that Kim would make such a statement. Trial counsel “may well have made the tactical decision not to object and move to strike, so as not to draw further attention to the passing reference.”
State v. Roles,
Further, in light of the testimony by Gray’s children, review of the record indicates that Rodriguez and Kim Gray’s testimony did not prejudice the defense and Gray has therefore not established the second prong of Strickland. The record on appeal does not establish that absent this testimony the outcome of the trial would have been different. Gray has failed to establish his claim for ineffective assistance of counsel.
E. Change of Venue
A trial court’s decision on a motion to change venue is discretionary in nature.
State v. Hall,
In this case there was pretrial publicity. However, the jury was chosen without significant difficulty. The district court questioned the potential jurors at length during voir dire regarding the effect of pretrial publicity. All jurors eventually selected to hear the case testified during voir dire that they had not formed an opinion regarding Gray’s guilt. Gray did not challenge for cause any of the jurors who sat on the case. There were almost four years between the *801 date of the crime and the beginning of the trial. In light of the totality of the circumstances, the jury’s exposure did not lead to fundamental unfairness at trial. Based upon the forgoing, we hold that the district court did not abuse its discretion in denying the motion for a change of venue.
F. Jury
1.Failure to strike juror for cause
Gray contends that the district court should have struck prospective juror Burton from the jury panel for cause. Burton indicated on a jury questionnaire that she had formed an opinion regarding Gray’s guilt as a result of the information she received from the media. Gray contends that because the district court refused to remove Burton from the jury panel he was forced to use a peremptory challenge.
Gray acknowledges that
Ross v. Oklahoma,
Having formed or expressed an unqualified opinion or belief that the defendant is guilty, or not guilty, of the offense charged indicates an implied bias and is thereby a basis for challenging a juror for cause. I.C. § 19-2020. A challenge for cause is to be decided upon by the trial court. I.C. §§ 19-2024; -2027. That decision is discretionary in nature.
State v. Grube,
The district court listened to and evaluated the juror’s responses during voir dire and denied the challenge.
See Grube,
2. Sequestration
Gray contends that the district court erred in failing to sequester the jury. A trial court’s decision to sequester the jury is reviewed for abuse of discretion.
State v. Hall,
The district court issued a gag order prohibiting all involved in the trial from discussing it with the press. The district court also repeatedly admonished the jury not to review any press reports relating to the trial. Further the district court polled the jury regarding publicity viewed during the trial proceedings. In light of the district court’s strict admonitions and cautionary measures, the district court did not abuse its discretion in refusing to sequester the jury. Id.
3. Failure to poll all jurors regarding mid-trial publicity
Gray moved for a mistrial on the basis that mid-trial media coverage had occurred which may have prejudiced the jury. Gray argued that a television interview was given by Roundy’s son, Clayton, after he testified, despite a gag order imposed by the district court. Further, Gray complained of an article which compared Gray with convicted murderer Paul Ezra Rhoades which was published in a local paper. The newspaper article consisted, primarily, of a contrast between Gray’s trial and the earlier trial of Rhoades. The article discussed the differences in the crimes, prosecutions, courtroom attendance and the suspects. The district *802 court did not grant the requested mistrial but questioned the jury members, on the record outside the presence of the attorneys and Gray, regarding the mid-trial publicity. Based on these interviews the court concluded that none of the jurors had observed the press reports and therefore no jury bias had arisen. Gray argues that juror number one was inadvertently not questioned and, thus, Gray’s constitutional rights to a fair trial and due process were violated.
The decision to grant or deny a motion for mistrial is a discretionary one for the trial court.
State v. Atkinson,
The district court determined:
The first issue as to whether the publicity has been so pervasive as to give rise to a presumption of prejudice in this case, I find no basis for that, and I’ll deny the motion on that basis.
The district court went on to poll the jury in the interests of fairness. During that polling, thirteen of the fourteen members of jury, including the alternates, testified that they had avoided the publicity which led to Gray’s motion. The district court then found that there was no actual prejudice as the jurors had not seen the media coverage of which Gray complained.
The trial court has broad discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial.
Marshall v. United States,
As noted above, the newspaper article was not of a highly prejudicial nature. The discussion of the evidence against Gray was minimal. The article focused, instead, on the relatively low public interest and attendance at Gray’s trial. The television interview with Clayton Roundy was recorded shortly after he testified. In that interview, Clayton Roundy indicated that, after viewing the evidence presented at that point, he believed Gray would be convicted and that Gray was the one who actually had committed the murders.
The district court had admonished the jury regarding the media at least seven times prior to the release of the newspaper article and television news story. It is presumed that the jury follows the instructions of the trial court.
See State v. Boothe,
Further, the district court took immediate action to discover the extent to which the jury had been prejudiced. Although the record reflects that one juror was inadvertently bypassed in the district court’s questioning, the remaining thirteen all had conformed to the district court’s numerous instructions to avoid the media coverage of the trial. Gray did not present any evidence, such as a post-trial affidavit of the juror who was not questioned, to support the proposition that the juror had read the article or seen the television report. The frequent warnings by the district court were clearly effective in preventing the jurors polled from viewing media reports of the trial.
This Court agrees with the district court’s determination that the newspaper article and television report in this case did not deny Gray a fair trial. As noted, this is particularly true in light of the district court’s frequent admonishments which were complied with by the thirteen jurors polled. Hence, it was not an abuse of the district court’s discretion to deny the motion for mistrial after its investigatory voir dire of all but one member of the jury-
G. Sufficiency of the Evidence
Gray complains that the evidence at trial was insufficient. The standard of review for a challenge to a judgment of conviction based upon the sufficiency of the evidence was stated by this Court as follows:
Appellate review of the sufficiency of the evidence is limited in scope. A judgment of conviction, entered upon a jury verdict, will not be set aside where there is substantial evidence upon which any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,443 U.S. 307 ,99 S.Ct. 2781 ,61 L.Ed.2d 560 (1979); State v. Filson,101 Idaho 381 , 386,613 P.2d 938 , 943 (1980). “[W]e are precluded from substituting our judgment for that of the jury as to the credibility of witnesses, the weight of the testimony, and the reasonable inferences to be drawn from the evidence.” State v. Campbell,104 Idaho 705 , 718-19,662 P.2d 1149 , 1162-63 (Ct.App.1983). Furthermore, we view the evidence in the light most favorable to the respondent. State v. Fenley,103 Idaho 199 , 203,646 P.2d 441 , 445 (Ct.App.1982).
State v. Decker,
Gray premises his argument, in part, on statements made during sentencing wherein the district court expressed lingering doubts about Gray’s guilt. We note that the district court was provided three opportunities to grant Gray’s motion for a judgment of acquittal. I.C.R. 29. In denying the third of Gray’s motions, the district court concluded:
I have given this case a great deal of thought, and it has been a troubling case to me. But, when I apply the rules, as I have just summarized, and conceding that this Court cannot substitute its judgment for that of the jury, it is my view that there was substantial competent evidence to support the convictions found by the jury in this case.
Had this Court been on the jury, I would have perhaps evaluated the evidence differently than other members of the jury. I may have determined the credibility of witnesses differently than the jury did and afforded different weight to the evidence than did the jury in this case and may have drawn different inferences from the evidence, but I can’t substitute my judgment for the jury.
We agree with district court in its analysis of this issue. Although this Court may have reached a different conclusion, we are not free to substitute our view for that of the jury. There was substantial, although conflicting, evidence in the record supporting Gray’s convictions for first degree murder and first degree burglary.
Gray contends that even if no individual error assigned above is sufficient to merit reversal of his conviction, when compounded together, they merit reversal under
*804
the cumulative error doctrine. The cumulative error doetrine “refers to an accumulation of irregularities, each of which by itself might be harmless, but when aggregated, the errors show the absence of a fair trial, in contravention of the defendant’s constitutional right to due process.”
State v. Peite,
*803 H. Cumulative Error Doctrine
*804 I. Delay in the Appeal Process
Gray claims that delay in processing his appeal denied him due process of law. No showing of prejudice can be made to support an assignment of error involving a delay in processing an appeal if the appeal lacks merit.
United States v. Tucker,
J. Cross-Appeal
The state filed a cross-appeal, alleging that the district court erred in sentencing Gray. Specifically, the state contends that the district court erred in relying upon “lingering doubt” of Gray’s guilt as a mitigating factor in sentencing. Idaho Code Section 19-2515(c) provides that the death penalty shall not be imposed unless a statutorily identified aggravating factor exists. That statute further provides that, even if an aggravating factor exists, the death penalty is not appropriate if mitigating factors exist which outweigh the aggravating factor.
Where the trial court erred in imposing sentence, the case may be remanded for resentencing, even if the error was to the defendant’s advantage.
See State v. Lankford,
III.
CONCLUSION
Certain irregularities existed in Gray’s trial. However, they did not singularly or in combination result in the denial of due process. Accordingly we uphold the judgments of conviction. We note that the trial court used lingering doubts of Gray’s guilt as a factor in sentencing. Regardless of whether utilizing such a consideration is error, we will not remand for resentencing because of double jeopardy concerns. Hence, the judgments of conviction and sentences are affirmed.
Notes
. Statement C — Betty told JoAnn Buceóla, her sister, and Janis Roby that Gray wanted to keep the divorce a secret. Statement F — Betty told Buceóla that Gray was angry with her: (1) after Gray steamed open a letter to her mother which discussed the divorce; and (2) for telling Buceóla about the divorce. Statement G — Betty stated to Buceóla that she believed Gray knew of her affair with LeRoy Leavitt because she found a card from Leavitt on the floor of her bedroom closet after she had previously hidden the card, with others, in the closet.
.Statement B- — Betty stated that she was having an affair with Leavitt. She further stated that she intended to divorce Gray, that she planned to many Leavitt and that she intended to meet with Leavitt on the day that she was killed.
.Statement H- — Betty stated that Gray was looking over their telephone bills and checking the outgoing telephone numbers. Statement I — Betty said that she decided to divorce Gray because she had talked to his doctor; his doctor was upset because Gray was abusing a good kidney that he had received by transplant; and he was not doing mild walking exercises or riding an exercise bike as prescribed by the doctor. Statement J — Betty told Buceóla that Gray was extremely angry and blamed Buceóla for the impending divorce.
.The Idaho Supreme Court explicitly adopted the holding in
Davidson
that a denial of a motion in limine preserves the issue for appeal stating, “we continue to adhere to the holding in
Davidson v. Beco Corp., supra,
that if the motion
in limine
is made, and the trial court unqualifiedly rules on the admissibility or inadmissibility of the
*794
evidence prior to trial, no further objection at trial is required in order to preserve the issue for appeal.”
State v. Hester,
. Q: BY MR. MULLIGAN: ... all investigation with regard to those two individuals stopped. Isn't that true?
A: Well, no, that's not true. Even though they were a group of suspects at that time, they were eliminated.
However, they have never — they proved where they were, their whereabouts. They had no motive. They didn’t have the weapon.
And so, therefore, the only suspect we have, proved by his own actions, included himself and involved himself a little more and more, day by day, was the defendant William Gray.