299 P.3d 892 | Utah | 2012
opinion of the Court:
INTRODUCTION
{1 Floyd Eugene Maestas was charged with aggravated murder, a violation of see
BACKGROUND
T2 Because Mr. Maestas's numerous claims encompass various aspects of his convictions and sentence, we provide a broad overview of the facts and procedural history of this case and include additional facts as we address each issue in the analysis section. As an initial matter, we note that jurors in capital cases consider guilt and sentencing in separate proceedings. Accordingly, the facts and procedural history of this case are set forth in different sections: (I) the crime and investigation, (I1) the guilt phase of the trial, and (III) the penalty phase of the trial.
I. CRIME AND INVESTIGATION
T3 On appeal, we construe "the record facts in a light most favorable to the jury's verdict."
A. The Burglaries
{4 On September 28, 2004, Mr. Maestas met William Irish and Rodney Renzo. While traveling together in Mr. Maestas's car, the three men agreed to rob a house. Mr. Maes-tas identified seventy-two-year-old Donna Bott's home as the one they would rob and entered the home, followed by Mr. Irish and Mr. Renzo. Upon entering, Mr. Maestas went into a back room, and Mr. Irish saw him on top of a woman who was struggling on a bed. Mr. Irish saw the woman's legs move and heard that her sereams were muffled by a pillow covering her face. At that point, Mr. Irish heard Mr. Maestas threaten to stab the woman if she did not tell him where he could find some money. Later, Mr. Renzo saw Mr. Maestas punching and stomping on the woman "over and over" while she was on the floor. Mr. Renzo stated that, after Mr. Maestas stopped punching and stomping on the woman, she did not appear to be moving. At that point, the men decided to leave Ms. Bott's home.
T 5 After leaving Ms. Bott's home, the men drove to the home of eighty-seven-year-old Virginia Chamberlain. Mr. Irish remained outside while Mr. Maestas and Mr. Renzo entered the home. Upon entering, Mr. Maestas pulled Ms. Chamberlain's shirt over her head, scratching her arm and causing it to bleed. He then hit her and asked her for her purse. At that point, Ms. Chamberlain pushed her medical alert button and the two men left her home.
T 6 Sometime after the men left Ms. Chamberlain's home, Mr. Maestas's car ran out of gas on a freeway on-ramp. The men abandoned the car, and Mr. Irish and Mr. Renzo left Mr. Maestas. A police officer later found Mr. Maestas's abandoned car on the freeway and discovered Ms. Chamberlain's wallet inside.
B. The Investigation
17 Approximately three days after the robberies, a neighbor became concerned about Ms. Bott and called the police. The officer responding to the call found Ms. Bott's body on the floor next to her bed. She was naked from the waist down. Another detective found a ripped pair of women's underwear on the bed and collected usable fingerprints from Ms. Bott's home.
[8 The medical examiner, Dr. Todd Grey, performed an autopsy on Ms. Bott and found internal and external injuries on her body and face. Specifically, Dr. Grey discovered numerous and extensive bruises and abrasions on Ms. Bott's body, including her chest area, shoulders, abdomen, face, knees, and hips. He also found a laceration through Ms.
T9 As part of the investigation, police officers interviewed Mr. Maestas twice. Both times, he asserted that no one else ever drove his car and that he was driving it the night it was abandoned. When a homicide detective noticed cuts and serapes on Mr. Maestas's arms, he had a lab technician collect blood samples from Mr. Macestas, Mr. Irish, and Mr. Renzo. The DNA from Ms. Bott's fingernail scrapings was then tested using a Y-chromosome short-tandem repeats (¥-STR) DNA analysis
10 Based on the foregoing evidence, the State charged Mr. Maestas with the aggravated murder of Ms. Bott and the aggravated burglary of Ms. Chamberlain's home.
II. GUILT PHASE
A. Pretrial Motions and Death Penalty Exemption Hearing
{11 Before trial on these charges, Mr. Maestas filed motions regarding the admissibility of the fingerprint and DNA evidence and a motion to strike the option of the death penalty pursuant to Atkins v. Virginia,
{12 In his motion regarding the fingerprint evidence, Mr. Maestas claimed that such evidence is not inherently reliable and requested that the court hold a hearing to determine the reliability of fingerprint evidence prior to such evidence being admitted. In the alternative, he requested a cautionary jury instruction regarding fingerprint evidence. The court heard argument on this issue during a pretrial hearing, but ultimately denied his motion. In his motion regarding the DNA evidence, Mr. Maestas argued that the Y-STR testing method was novel and not inherently reliable. The court held a hearing on Mr. Maestas's motion and heard testimony from a forensic scientist employed by Sorenson Forensics. At the end of this testimony, the court took judicial notice of the inherent reliability of Y-STR DNA testing and allowed the DNA evidence to be introduced at trial.
B. Jury Selection
114 After the pretrial motions, the court proceeded to empanel a jury. In the jury selection process, the court held an initial meeting with potential jurors where it distributed a questionnaire, asked preliminary questions about their qualifications for service, and admonished them regarding proper juror conduct.
C. Evidence and Arguments
15 During the trial, the State presented evidence that Mr. Maestas was guilty of aggravated murder and aggravated burglary. Specifically, the State introduced the testimony of Mr. Irish and Mr. Renzo, linking Mr. Maestas to the murder of Ms. Bott and the burglary of Ms. Chamberlain's home. The State also introduced the testimony of Mr. Maestas's ex-wife, who lived in Ms. Bott's neighborhood. In addition, the State presented DNA and fingerprint evidence and the medical examiner's testimony.
1. DNA and Fingerprint Evidence
T 16 Regarding the DNA evidence, the forensic scientist explained the Y-STR DNA testing method and testified that, based on this analysis, both Mr. Irish and Mr. Renzo could be excluded as the source of the DNA from under Ms. Bott's fingernails But he stated that neither Mr. Maestas nor his paternal relatives could be excluded. Regarding the fingerprint evidence, an expert testified that two fingerprints taken from inside Ms. Bott's home matched Mr. Maestas and one fingerprint matched Mr. Irish.
2. Medical Examiner's Testimony
T17 At trial, the medical examiner, Dr. Grey, testified concerning the cause and manner of Ms. Bott's death. After explaining his role as a medical examiner, he stated that he found injuries on Ms. Bott consistent with stabbing, strangulation, and blunt force trauma, but that he found no evidence of rape or trauma to the vaginal area. Dr. Grey was also asked whether the injuries inflicted on Ms. Bott were "purposely inflict, ed." In response, he testified that the stab wounds "appeared to be consistent with an intentional stab wound" and that the strangulation was "purposefully inflicted."
3. Mr. Maestas's Defense
" 18 At the close of the State's case, Mr. Maestas moved for a directed verdict, arguing that the State had not proven that the murder was committed in an especially heinous manner or that the murder was committed during an attempt to commit forcible sexual abuse. In addition, Mr. Maestas claimed that the State had not proven that he had the requisite intent to support a convietion for aggravated murder. The court denied the motion.
19 Mr. Maestas then proceeded to present his defense, claiming that Mr. Renzo and Mr. Irish stole his car, committed the crimes, and framed him. For support, he presented the testimony of witnesses who claimed to have heard Mr. Irish use racial slurs and admit to stealing the car and framing Mr.
4. Closing Arguments
120 After Mr. Maestas presented his defense, the parties presented their closing arguments to the jury. During the State's closing arguments, the prosecution stated that "defendants usually testify." Further, it indicated that, if Mr. Maestas disputed the DNA evidence, he could have tested it himself.
D. Jury Notes
On the last day of trial, the judge received two notes from the jury. The first note indicated that a juror had read a newspaper article about the trial. Although there is no record of whether the judge made counsel aware of the note, the judge did hold a meeting with the juror who allegedly read the newspaper article and determined that she could continue to serve on the jury. Defense counsel and the prosecution were both present at this meeting with the juror.
T 22 The second note from the jury asked, "Are we here until we've reached a verdict? Overnight? Until 57" The judge responded with a note stating, "Not overnight. How long? We will all have a say if necessary." Although the judge met with counsel that day regarding a note from the jury, it is unclear from the record whether the judge informed the parties of this note or of his written response.
E. Conviction
23 The jury convicted Mr. Maestas of the aggravated murder of Ms. Bott and the aggravated burglary of Ms. Chamberlain's home. Regarding the aggravated murder charge, the jury found four aggravating factors: (1) the murder was committed in the course of an aggravated burglary; (2) the murder was committed in the course of an aggravated robbery; (8) the murder was committed in the course of an attempt to commit forcible sexual abuse; and (4) the murder was committed in an especially heinous, atrocious, eruel, or exceptionally depraved manner.
III. PENALTY PHASE
A. Evidence of Aggravating Circumstances
1 24 After the jury reached its verdict, the State sought to prove that death was the appropriate penalty. The State therefore introduced aggravating circumstances relevant to the sentence, as well as victim impact evidence concerning the crime.
1. Criminal History and Other Crimes
125 The State presented evidence concerning Mr. Maestas's history of criminal conduct, both as a youth and as an adult. For example, the State introduced a certified copy of Mr. Maestas's conviction in 1990 for burglary of the home of Phyllis Demetropo-los. The State also presented Ms. Demetro-polos to testify about the cireumstances surrounding the burglary.
{26 In addition, the State introduced the following evidence regarding specific crimes that Mr. Maestas committed as an adult, but for which he was not convicted: (a) the aggravated burglary of Alinda McClean's home and (b) the aggravated burglary of Leone Nelson's home.
a. -The McClean Incident
27 In the 1970s, Mr. Maestas pled guilty to the third degree felony of theft by receiving stolen property, based on his possession of property stolen from Ms. McClean. The State sought to prove beyond a reasonable doubt that he had actually committed aggravated burglary, although he had not been convicted of that crime. Specifically, the State introduced Mr. Maestas's plea, parole revocation documents, and police testimony to show that he committed aggravated burglary. Because Ms. McClean had since passed away, the State also presented testimony about the incident from her granddaughter.
b. The Nelson Incident
1 28 In the 1990s, Mr. Maestas pled guilty to the class A misdemeanor of theft for stealing Ms. Nelson's property. Again, although he had not been convicted of aggravated
2. Other Aggravating Cireumstances and Victim Impact Evidence
1 29 The State also presented other aggravating evidence, including pictures of Ms. Bott's bedroom after her assault and photographs of her body. Further, the State introduced the testimony of Mr. Maestas's ex-wife, who testified that Mr. Maestas had not taken responsibility for the crime. The State also introduced the testimony of an agent with Adult Probation and Parole, and the testimony of a prison caseworker who had supervised Mr. Maestas.
1 30 Further, the State introduced testimony from Ms. Bott's family about the impact of her murder. Specifically, Ms. Bott's granddaughter read from her personal blog about how the murder had affected her.
B. Evidence of Mitigating Circumstances
T 31 After the State presented its case that death was the appropriate penalty, Mr. Maestas's counsel began presenting evidence of mitigating cireumstances. But the day after defense counsel began its presentation, Mr. Maestas personally sent a letter to the court objecting to his counsel's plan to present a witness to testify that she had observed Mr. Maestas having sex with his sister when he was a child. He claimed this testimony was a lie. In response, defense counsel stated that they intended to proceed with presenting all the mitigating evidence they had compiled, despite Mr. Maestas's objections. When the court inquired if defense counsel would be willing to refrain from presenting the specific evidence to which Mr. Maestas objected, but still present the remaining evidence, defense counsel refused and said "it's not negotiable."
132 The trial court then ordered defense counsel to advise Mr. Maestas of the importance of presenting mitigating evidence and to consult with him regarding what evidence, if any, he wanted to present. Defense counsel discussed the mitigating evidence in "broad terms" with Mr. Maestas and described "in pretty specific terms ... what each individual witness would say." After this discussion, Mr. Maestas informed the court that he wished to waive the right to present mitigating evidence. He acknowledged that his decision was knowing and voluntary. He had initially requested that he be allowed to represent himself during the remainder of the penalty phase, but later agreed to retain his defense counsel so that they could make the closing argument on his behalf.
€33 The trial court concluded that Mr. Maestas's decision to waive the right to present mitigating evidence was knowingly and voluntarily made and ordered defense counsel not to present further mitigating evidence. Mr. Maestas then briefly spoke to the jury and said that he did not commit the crime. No other mitigating evidence was presented.
C. Jury Deliberations, Sentence of Death, and Motion for a New Trial
1. Jury Deliberations and Sentence of Death
34 During jury deliberations in the penalty phase, the judge received a note from the jury. The note asked whether the parole board could "overrule" a jury's sentence of life without parole. The judge responded with a note stating that the jury was "directed to the jury instructions as a whole and specifically Instruction No. 12." Instruction No. 12 stated that "[i]f a person is sentenced to life in prison without parole, this means that he will never be eligible for parole and will spend the remainder of his life in prison." The judge informed counsel of this note and his response before the jury's sentence was read in open court, but after the jury had reached its verdict. Defense counsel did not object at the time, but did object five days later, before the court formally imposed
2. Motion for a New Trial
1 35 After the jury reached its verdict, Mr. Maestas filed a motion for a new trial, arguing that two jurors, jurors 8 and 18, engaged in misconduct. Specifically, he alleged that jurors 8 and 18 provided false information on their court questionnaires and interjected prejudicial extraneous information into the jury's deliberative process. The trial court denied this motion.
STANDARD OF REVIEW
136 Our standard of review varies with the different types of challenges that Mr. Maestas raises. "In reviewing a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict."
137 We also note that we "will review errors raised and briefed on appeal in death penalty cases, even though no proper objection was made at trial, but will reverse a conviction based upon such errors only if they meet the manifest and prejudicial error standard."
ANALYSIS
38 On appeal, Mr. Maestas raises several arguments concerning his convictions and his sentence under Utah's death penalty scheme. We have organized his claims into six categories: (I) jury issues, (I1) evidence and arguments in the guilt phase of the trial, (IIl) challenges regarding the death penalty exemption hearing, (IV) evidence and arguments in the penalty phase, (V) constitutional challenges to Utah's death penalty scheme, and (VI) claims of cumulative error.
I. JURY ISSUES
139 Mr. Maestas raises five challenges concerning the selection of the jury, communications with the jury, and the jury's deliberations. Specifically, he alleges that he is entitled to a new trial because (A) during voir dire, the court improperly granted and improperly denied for-cause challenges to prospective jurors; (B) the court erred when it failed to admonish the jurors on some occasions; (C) the court erred when it conducted proceedings and communicated with the jury in the absence of Mr. Maestas and his counsel; (D) the court improperly responded to the jury's question regarding life without parole; and (E) jurors committed
A. The Trial Court Did Not Commit Any Prejudicial Error Regarding the For-Cause Challenges to the Prospective Jurors
T40 Mr. Maestas argues that the trial court committed reversible error in granting the State's for-cause challenge to prospective juror 50 and in denying his for-cause challenges to prospective jurors 16, 20, and 27. He contends that, as a result, he was forced to use three of his four peremptory challenges to remove those jurors.
T41 As an initial matter, when reviewing the propriety of a denial or grant of a challenge for cause, "we look to the entire voir dire exchange with the challenged juror."
1. The Trial Court Erred Only When It Denied the For-Cause Challenge to Prospective Juror 20
I 42 Regarding jury selection in death penalty cases, the U.S. Supreme Court has held that "a juror may not be challenged for cause based on his views about capital punishment wnless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."
148 Thus, once statements are made during voir dire that "facially raise a question of [a prospective juror's] partiality or prejudice, an abuse of discretion occurs unless the challenged juror is removed by the court or unless the court or counsel investigates further and finds the inference rebutted."
944 First, Mr. Maestas asserts that, because the court based its decision on prospective juror 50's "hesitation or conscientious seruples against [imposing the] death penalty," it erred in removing that prospective juror for cause. We disagree. The
$45 Second, Mr. Maestas argues that the court erred in failing to remove prospective juror 16 after the prospective juror indicated that "he would consider evidence that is mitigation under Utah's statute as aggravation." According to Mr. Maestas, the prospective juror's single statement that he would "probably" consider an actor's drug use as an aggravating circumstance demonstrated that he would not act impartially. We disagree. Prospective juror 16's statement was made without context or a discussion of the relevant statutory aggravating and mitigating cireumstances. Indeed, prospective juror 16 was never told that an actor's drug use during the commission of a crime was statutorily considered a mitigating civreumstance.
(146 Third, Mr. Maestas argues that the court erred in failing to remove prospective juror 27 after she stated that death was the appropriate penalty in cases of intentional murder. He asserts that her statement demonstrates that she would not act impartially. We disagree. Although prospective juror 27s statement may raise a question of partiality, the statement appears to be merely a light impression. It was made after defense counsel rephrased the prospective juror's original statement that death may be appropriate for "cold-blooded murder." Further, the challenged remark was rebutted by prospective juror 27's responses that she did not believe that the death penalty was the only appropriate sentence for aggravated murder, that she did not have strong feelings about the death penalty, and that she would follow the law and the trial court's instructions regarding when to impose the death penalty. Because it appears that the challenged statement was merely a light impression that was sufficiently rebutted, the trial court did not abuse its discretion in determining that prospective juror 27 could act impartially.
147 Fourth, Mr. Maestas argues that the trial court abused its discretion in failing to remove prospective juror 20 after he made repeated statements about his preference for a sentence of death and said that he would look less favorably on Mr. Maestas because of his race. We agree that, based on the entire voir dire exchange with prospective juror 20, his views would likely "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."
2. The Error Was Not Harmful Because Mr. Maestas Has Not Demonstrated that a Biased Juror Was Empaneled
149 Having determined that the court abused its discretion only in denying only the for-cause challenge to prospective juror 20, we next examine whether that error prejudiced Mr. Maestas. Following the denial of his for-cause challenge, Mr. Maestas used a peremptory challenge to remove prospective juror 20. Where a defendant uses a peremptory challenge to remove a juror who should have been removed for cause, we require that the defendant demonstrate prejudice.
T50 In this case, Mr. Maestas does not make such an assertion. Instead, he claims that, under State v. Saunders, we can find prejudice if we "take into account on a cumulative basis all erroneous rulings with respect to rulings on voir dire and for-cause challenges."
B. The Court's Occasional Failures to Admonish the Jury Did Not Result in Harm to Mr. Maestas
151 Mr. Maestas claims that the trial court failed to admonish the jury nine times over the course of the two-week trial: before one break on the first day of the guilt phase, four breaks on the second day, two breaks on the fifth day, and a break on both the first and second days of the penalty phase. He claims that he should be afforded a new trial because of these failures to admonish the Jury. Because this claim was not preserved, Mr. Maestas must show plain error, meaning
T52 Mr. Maestas contends that we should presume harm and grant a new trial in every case where the court fails to admonish a jury at any recess. We decline to adopt such a rule. Automatically granting a new trial for any instance where the court fails to admonish the jury before a recess fails to take into account whether, and to what extent, the jury has been properly admonished by the court in other instances,. If the admonition "is not given but the harm that it was designed to forestall never occurs, it would be pointless to order a new trial simply to have the [admonition] given."
153 We do not, however, foreclose the possibility that a presumption of harm may be warranted based on the particular cireumstances of a case.
154 Because this case does not warrant a presumption of harm, Mr. Maestas must show that he was actually harmed by the court's failures to admonish the jury. He contends that he must have been harmed because the court's failure resulted in a juror being exposed to publicity about the case.
C. Mr. Maestas's Constitutional Rights Were Not Violated When, in His Absence amd the Absence of His Counsel, the Court Conducted Certain Proceedings and Communicated with the Jury
1[ 55 Mr. Maestas asserts that he is entitled to a new trial because his constitutional rights to be present and to counsel were violated when he and his counsel were absent from certain court proceedings and communications with the jury.
157 In addition to the right to be present, the Sixth Amendment affords the defendant the right to assistance of counsel.
T58 With these standards in mind, we address Mr. Maestas's claim that he was denied the right to be present and the right
1. Mr. Maestas's Absence and the Absence of His Counsel from Certain Court Proceedings Did Not Violate His Constitutional Rights
159 Mr. Maestas contends that his right to be present and right to counsel were violated when he and his counsel were absent from certain court proceedings over the course of the guilt and penalty phases of the trial. Specifically, he claims that his rights were violated when (a) he and his counsel were absent from an initial meeting with prospective jurors, (b) he was absent from the beginning of a preliminary motion hearing, and (c) he and his counsel were absent during the judge's unrecorded conversation with and dismissal of the jury on one day in the penalty phase. Because these claims were not preserved, we consider them only for plain error, which means that an error must be both harmful and obvious.
a. Mr. Maestas's Absence and the Absence of His Counsel from the Initial Meeting with Prospective Jurors Did Not Violate His Right to Be Present and Right to Counsel
T60 Prior to holding the initial meeting with prospective jurors, the judge and the parties discussed the scheduled meeting on multiple occasions, but the judge stated that it was not necessary for the parties to attend. As a result, neither Mr. Maestas nor his counsel appeared at the initial jury meeting. At that meeting, the judge administered an oath and asked the prospective jurors a few preliminary questions regarding their general qualifications for jury service.
161 Mr. Maestas asserts that we should grant him a new trial because holding the meeting in the absence of his counsel constituted a structural error that does not require a showing of harm, or, in the alternative, holding the meeting in his absence and the absence of his counsel was a harmful error. We disagree.
T62 First, because the initial meeting was not a "critical stage" of the proceeding, Mr. Maestas has not demonstrated that holding the meeting in the absence of his counsel constituted a structural error. The focus of the meeting was on basic ministerial matters.
163 Second, Mr. Maestas has failed to demonstrate that it was a harmful error to
T 64 Mr. Maestas also asserts that he was harmed because his counsel's absence prevented them from being able to answer the prospective jurors' questions or follow up on concerns about the jurors' qualifications for service. But his counsel was provided an opportunity to question jurors during voir dire to ensure that the jurors were qualified. Because the judge deferred the prospective jurors' questions and did not remove any jurors, the prospective juror pool remained the same and Mr. Maestas was not placed in a different position as a result of the meeting. Accordingly, Mr. Maestas has not demonstrated that he was harmed by his or his counsel's absence from this initial meeting. We therefore decline to grant a new trial on this basis.
b. Mr. Maestas's Absence from the Beginning of a Pretrial Motion Hearing Did Not Violate His Right to Be Present
T65 Prior to trial, the court held a pretrial motion hearing to review the parties' various motions. Before Mr. Maestas came into the courtroom, counsel made their appearances and discussed the outstanding evidentiary motions to be heard that day, including issues related to the motion regarding fingerprint evidence. At that point, the prosecution noted that Mr. Maestas was not present and defense counsel requested that Mr. Maestas be brought into the courtroom. Shortly thereafter, Mr. Maestas entered the courtroom and the court explained what had occurred in his absence. Neither Mr. Maes-tas nor his counsel raised any objections to his absence before or after he came into the courtroom. On appeal, however, Mr. Maes-tas contends that his absence from the beginning of this hearing violated his right to be present. We disagree.
T66 Mr. Maestas has not demonstrated that the court committed an obvious and harmful error. The beginning of this pretrial motion hearing was not a "stage of the criminal proceeding that [was] critical to its outcome."
c. The Absence of Mr. Maestas and His Counsel During the Judge's Unrecorded Communication and Dismissal of the Jury Did Not Violate Mr. Maes-tas's Rights
1 67 On the third day of the penalty phase, Mr. Maestas asked to proceed as his own counsel. In response, the judge and counsel for both parties discussed this request outside the presence of the jury. The court then took a brief recess before ruling on Mr. Maestas's request. When the judge returned, he stated as follows:
Just prior to coming in I excused the jury and asked them to come back in the morning, because earlier when I went back to advise the jury there was a delay, several indicated that they had appointments, had*918 made arrangements at 3, 4, 4:80 expecting [us to adjourn at the] normal time. I told them that in any event had we gone forward we would have accommodated that. They will be here in the morning.
Neither Mr. Maestas nor his counsel objected to the judge's interaction with the jury.
' 68 On appeal, however, Mr. Maestas contends that the judge's interaction violated his right to be present and right to counsel because the interaction took place in his absence and the absence of his counsel. He argues that prejudice should be presumed when a judge engages in ex parte communication with the jury. But we decline to adopt an automatic presumption of prejudice, and, because Mr. Maestas has not shown that the judge's unrecorded communication with the jury resulted in harm, we reject Mr. Maestas's claim that he should be granted a new trial on this basis.
169 In declining to automatically presume prejudice where a judge communicates ex parte with the jury, we note that we have held that a presumption of prejudice may arise as a result of some ex parte contact with the jury.
70 We note that it may be appropriate to presume prejudice in some instances, such as where the judge discusses substantive matters with jurors.
171 Without a presumption of prejudice, Mr. Maestas must show harm in order to prevail on his claim. He has not done so. While he contends that the judge's off-the-record dismissal of the jury could have caused the "jury to feel "a greater warmth and affinity toward the judge," it seems unlikely that jurors would feel any differently toward the judge than if he had dismissed them with counsel and Mr. Maestas present. Further, as the judge was not an adversary to Mr. Maestas in the proceedings, it would not have been problematic if jurors felt appreciative toward the judge after being dismissed. In addition, while Mr. Maestas contends that it is possible that the judge said something to the jurors to indicate that Mr. Maestas was causing a delay, he proffers no evidence to support this conjecture. Because he has not demonstrated harm, we decline to grant Mr. Maestas a new penalty phase on this basis.
2. The Judge's Responses to Three Notes from the Jury Did Not Violate Mr. Maes-tas's Right to Be Present or His Right to Counsel
172 Mr. Maestas argues that he was denied his right to be present and his right to counsel when the judge responded to three notes sent by the jury without first informing counsel. Specifically, he challenges the judge's response to (a) two notes the jury sent during the guilt phase of the trial and (b) one note sent during the penalty phase. We reject these claims.
a. The Judge Did Not Commit Reversible Error in His Responses to the Two Notes the Jury Sent During the Guilt Phase
173 As an initial matter, we set forth the contents of the two notes the jury sent to the judge during the guilt phase, along with the judge's responses. The first note (Juror Tainting Note) was written on the sixth day of the guilt phase and stated, "Last week I made a comment about hoping to not miss all 3 weeks my kids are off track. [Juror 8] (on the back row) leaned over and said, "I may have read an article in the paper that said trial would last only two weeks.'" Although it is not clear from the record that the judge informed counsel that he had received this note, he did hold an in-chambers meeting with defense counsel, the prosecution, and juror 8.
T 74 During that meeting, the judge told juror 8, "We have some concerns about whether or not anything in the press or anything in the paper has come to your attention, that you have read about the trial." Juror 8 responded that she had read a headline about the trial and saw a picture in the paper, but that she was not looking for any information and did not read the accompanying story. Defense counsel declined to ask any additional questions. The prosecution, however, inquired into whether juror 8 would follow the court's instructions despite any information she gleaned about the case from the headline. Based on juror 8's assurances that she had not read any articles and that she would follow the court's instructions, the judge, the prosecution, and defense counsel agreed that juror 8 would not be removed.
T 75 The jury sent the judge a second note (Scheduling Note) during or before deliberations on the last day of the guilt phase. The note asked, "Are we here until we've reached a verdict? Overnight? Until 5?" Although it is unclear whether the judge informed the parties of this note, the record shows that the judge wrote a note to the jury responding, "Not overnight. How long? We will all have a say if necessary."
T76 Mr. Maestas contends that the judge committed reversible error in responding to the two jury notes without disclosing the exact content of the notes on the record. Because he did not preserve these arguments
(i) The Judge's Response. to the Juror Tainting Note Was Not Erroneous
177 We note that, in this case, counsel was present during the judge's response to the allegations raised in the Juror Tainting Note. Although the judge and counsel met with juror 8 regarding whether she had read any newspaper articles about the case, Mr. Maestas asserts that his right to be present and his right to counsel were violated because there is no record that the judge disclosed the contents of the note to him or his counsel. We are not persuaded that this was a reversible error.
178 As an initial matter, "(aln in-chambers conference concerning the dismissal of a juror ... is not a stage of the trial when the absence of the defendant would frustrate the fairness of the trial so long as counsel for the defendant is present."
T 79 In this case, even if the judge did not show the Juror Tainting Note to Mr. Maes-tas or his counsel, the error was harmless for three reasons. First, Mr. Maestas has not alleged that juror 8 was partial or biased because of any newspaper article that she read during the course of the trial.
180 Because defense counsel was present at the in-chambers conference to address the allegations in the Juror Tainting Note and
@) The Judge's Response to the Scheduling Note Was Not Erroneous
181 Mr. Maestas asserts that, when the judge responded to the Scheduling Note, he reinstructed the jury outside of his presence and the presence of his counsel. We reject this characterization of the judge's response.
182 A defendant has the constitutional right to be present at "any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.
183 In Valentine v. United States, the judge delivered a note to the jury without the parties' knowledge.
T84 As in Valentine and McMurry, the judge's response to the Scheduling Note in this case addressed only scheduling matters. Specifically, the jury asked the judge whether they were to deliberate "until [they] reached a verdict? Overnight? Until 57" And the judge's response was that everyone would "have a say if necessary" on when proceedings would end for the day. This response was not an "instruction" at all. Indeed, the response did not charge the jury to take any action, to return a verdict by a certain time, or to consider any substantive issue. Rather, the judge's response simply informed the jury that, if they did not reach a verdict by the end of the day, they would "have a say" in determining when to conclude their deliberations. Because the response involved only scheduling issues, it was not a critical stage of the proceeding. Aceordingly, we do not presume harm.
$85 Mr. Maestas must therefore demonstrate a reasonable probability that, but for his absence and the absence of his counsel, there would have been a more favorable outcome.
86 Because it was not a critical stage of the proceeding, and because the response did not harm Mr. Maestas, neither his right to be present nor his right to counsel were violated by the judge's responses to the two notes from the jury during the guilt phase.
b. The Judge's Response to the Jury's Note in the Penalty Phase Did Not Violate Mr. Maestas's Right to Be Present or His Right to Counsel
187 After the jury began deliberations regarding 'Mr. Maestas's sentence, it had a question about life without parole (LWOP). It sent a note (LWOP Note) asking, "If we make the decision of life without parole, is that a guarantee? Can the parole board over-rule our decision?" Without informing the parties of the note, the judge responded, "You are directed to the jury instructions as a whole. And specifically [Instruction No. 12." Instruction No. 12 provided: "If a person is sentenced to life in prison without parole, this means that he will never be
188 After the jury had reached a verdict, but before the verdiet was announced in open court, the judge called the prosecution and defense counsel into his chambers and informed them of the LWOP Note and his response. Neither the prosecution nor defense counsel made any objections at that time. But before the court formally imposed Mr. Maestas's sentence, defense counsel objected to the judge's response on the grounds that the judge, by responding to the LWOP Note without informing the parties, had violated Mr. Maestas's right to be present, right to counsel, and right to due process. The judge ruled that his response to the LWOP Note was proper, that Mr. Maestas's motion was untimely, and that the parties had agreed to the appropriateness of the judge's response.
189 On appeal, Mr. Maestas renews his claims that the judge's response to the LWOP Note violated his right to be present, right to counsel, and right to due process. He argues that jury re-instruction is a critical stage of the proceeding and therefore contends that it was structural error for the judge to respond to the note without notifying the parties of the note's contents. He asserts that he should be granted a new penalty phase on this basis. We disagree.
190 While some courts have found that jury re-instruction qualifies as a critical stage of the proceeding,
I 91 In this case, by directing the jury to the instructions as a whole, and particularly to Instruction No. 12, the judge merely reiterated the prior instructions upon which the parties had agreed. Thus, to prevail on his claim, Mr. Maestas must show that he was harmed by the judge's response to the LWOP Note.
192 Mr. Maestas contends that he was harmed because the jury's question shows that it voted to impose death based on an incorrect understanding of the sentencing options, and defense counsel would have requested additional clarification if they had been informed of the note. We are not persuaded by this argument for three reasons. First, as discussed below in Part I.D., we conclude that the judge's response was appropriate and that Mr. Maestas was not harmed by the response because Instruction No. 12 actually misstated the law to his benefit. Second, while juror affidavits indicate that discussion about the meaning of life
193 Because the judge's response to the LWOP Note was merely a reiteration of jury instructions previously agreed upon by the parties, and because Mr. Maestas has not shown that he was harmed by this response, we conclude that Mr. Maestas's constitutional rights were not violated. Accordingly, we reject the assertion that Mr. Maestas is entitled to a new penalty phase on this basis.
194 But we note that, even though the judge did not commit reversible error in responding to the jury's three notes, it is advisable for judges to inform counsel and disclose the contents of any jury notes on the record before providing a response. When a judge answers a jury's note without consulting counsel, the judge exposes the verdict to challenges that could easily be avoided. To protect a verdict and to respect a defendant's right to a fair trial, judges should inform counsel of each note they receive from the Jury.
D. The Trial Court Did Not Eirr When it Directed the Jury to Instruction No. 12 in Response to the LWOP Note
195 Mr. Maestas argues that the trial court committed a reversible error because it failed to ensure that the jury understood the meaning of a sentence of life without parole. He asserts that the trial court violated his rights under the Due Process Clause and the Eighth Amendment by its response to the LWOP Note from the jury. Specifically, he argues that the court should have responded that the jury's sentencing decision could not be overruled by the Board of Pardons, instead of directing the jury to Instruction No. 12. Because Mr. Maestas raises constitutional questions, we review the court's conclusions for correctness.
96 The U.S. Supreme Court has held that the principles of due process require the sentencing jury in a capital case to be informed that the defendant is ineligible for parole when "the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole."
197 In Simmons v. South Carolina, the prosecution argued at trial that the defendant's "future dangerousness was a factor for the jury to consider when fixing the appropriate punishment."
1 98 In finding a violation of the principles of due process, the U.S. Supreme Court highlighted the point that the defense had conclusively established that the defendant "was in fact ineligible for parole under [state] law."
{ 99 Unlike the instructions given in Simmons, in the case currently before us, the trial court's instructions regarding life without parole were sufficient to satisfy Mr. Maestas's constitutional rights for two reasons. First, even if we assume that Mr. Maestas's future dangerousness was at issue,
T100 Second, the trial court was not obliged to tell the jury that the Board of Pardons and Parole could never overrule the jury's sentence of life without parole because such a statement is inaccurate under Utah law. The U.S. Supreme Court's language in Simmons does not require a jury to be instructed in a manner that affirmatively conceals the legal possibility of a defendant's parole."
{101 For the foregoing reasons, we conclude that the principles of due process and the Eighth Amendment were not violated when the judge responded to the LWOP Note by directing the jury to Instruction No. 12. Accordingly, we reject Mr. Maestas's claim of error.
E. The Trial Court Did Not Err When It Denied the Motion for a New Trial
1102 Mr. Maestas asserts that the trial court erred in denying his motion for a new trial based on two instances of alleged juror misconduct. He asserts that (1) two jurors failed to honestly answer material questions during voir dire and (2) the jury was exposed to and considered extraneous prejudicial information during its deliberations.
$108 A trial court may grant a new trial "in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party."
1. The Two Jurors Did Not Provide Dishonest Answers on Their Jury Questionnaires
T104 When determining whether a juror's answers during voir dire warrant a new trial, we have adopted the test set forth in McDonough Power Equipment, Inc. v. Greenwood.
Under the first prong of the McDonough test, a juror's objective honesty is assessed by evaluating whether the answer was true or false at the time it was given.
106 First, juror 8 stated in voir dire that, based on her attendance in a criminology class, she understood "life without parole" to mean that an individual must serve at least twenty years in prison, but "there is still an option of parole ... after that time." Nonetheless, when asked whether she would follow the judge's instructions and statement about the meaning of a sentence of life without parole, even if those instructions conflicted with her studies, juror 8 stated that she "would follow the judge." Mr. Maestas argues that juror 8's response was a dishonest answer requiring a new trial. We disagree.
1107 Juror 8's answer that she could set aside her understanding of the meaning of "life without parole" and follow the judge's instructions was not objectively dishonest because it called for a prediction of a future event. Moreover, Mr. Maestas has not proffered any evidence that juror 8 intended to, or actually did, disregard the judge's instructions in voting for the death penalty. Indeed, the State proffered an affidavit from juror 8 in which she stated that, after the judge instructed the jury to follow Instruction No. 12, "the jurors agreed to follow [his] instruction, and the discussion [about the meaning of life without parole] moved on to a different topic." For the foregoing reasons, we conclude that juror 8's answer during voir dire was not objectively dishonest and therefore fails under the first McDonough prong.
1108 Second, juror 18 was asked in her court questionnaire whether anyone in her family had ever been "charged with a crime" and, if so, "what crime and what was the outcome?" The questionnaire gave one line of writing space to identify the "crime" and two lines to describe the "outcome." Juror 18 answered that her son had been arrested and charged with "passing a check that didn't belong to him" and was on probation. In responding to a separate question, juror 18 indicated that her son had also been charged with "busting in [her] door." Further, juror 18 stated that she thought that courts are too "soft" on eriminals but that she did not have strong or negative feelings toward the legal system.
1109 After sentencing, juror interviews indicated that, during deliberations, juror 18 had told the other jurors that her son had "a substantial juvenile history with over 65 felonies before he reached the age of 18 and that nothing had happened to him as far as meaningful punishment by the court." Based on this information, Mr. Maestas argues that juror 18 provided dishonest answers during voir dire when she failed to document the extent of her son's juvenile history and answered that she did not have strong feelings about the criminal justice system.
1110 Juror 18's responses regarding her feelings toward the criminal justice system do not qualify as objectively dishonest. As an initial matter, juror 18's statement during deliberations is likely barred from our consideration by rule 606(b) of the Utah Rules of Evidence.
4 111 In addition, juror 18's failure to disclose the extent of her son's juvenile history was not objectively dishonest because the questionnaire's inquiries were ambiguous. Specifically, the questionnaire asked whether a family member was "ever charged with a crime?" and provided only one line of writing space for the answer. (Emphasis added.) A reasonable interpretation is that a lengthy list of criminal charges was not required. Juror 18's response therefore cannot be said to have been objectively dishonest in light of the ambiguous nature of the question.
112 For the foregoing reasons, we conclude that Mr. Maestas has not satisfied the first prong of the McDonough test because neither juror's answers were objectively dishonest.
2. Because the Two Jurors' Statements Did Not Contain Extraneous Prejudicial Information, We May Not Consider Them Under Rule 606(b)
{113 Next, we analyze whether the jury was exposed to and considered extraneous prejudicial information during its deliberations. We recognize that "[the requirement that a jury's verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury."
1114 But rule 606(b) has an exception that allows a juror to testify on the question of "whether ... extraneous prejudicial information was improperly brought to the jury's attention."
1115 First, Mr. Maestas contends that juror 8's assertion that individuals sentenced to life without parole could nevertheless be paroled constitutes extraneous prejudicial information. And he claims that he was prejudiced by this statement. We disagree. The question of whether jury discussions of parole eligibility constitute extraneous information is an issue of first impression in our state. Other jurisdictions, however, have examined this issue and reached various results.
{116 Juror 8s comment was not prejfudi-cial to Mr. Maestas because the evidence shows that the jury was already confused about the meaning of life without parole before juror 8 made her comment. And after juror 8s statement about her understanding of life without parole, the jury submitted the LWOP Note to the judge. When the jury was instructed to reread Instruction No. 12, it is uncontested that "the question was answered, the jurors agreed to follow the instruction, and the discussion moved on to a different topic." Accordingly, there is no evidence that juror 8's statement about her understanding of life without parole influenced the jury's decision or prejudiced Mr. Maestas.
1117 Second, Mr. Maestas contends that juror 18's statements during jury deliberations regarding her son's juvenile history and her feelings about his punishment constitute extraneous prejudicial information. We disagree. Neither a juror's personal experiences nor her feelings or beliefs constitute extraneous prejudicial information'
118 In sum, we reject each of Mr. Maes-tas's five challenges concerning the selection of the jury, the judge's communications with the jury, and the jury's deliberations. Accordingly, we decline to grant him a new trial on these bases.
IL GUILT PHASE
119 Mr. Maestas next raises four arguments regarding the guilt phase of his trial. Specifically, he asserts that he is entitled to a new guilt phase because (A) the court erred in admitting expert testimony about the Y-STR DNA analysis and fingerprint testing, (B) the court erred in allowing certain portions of the medical examiner's testimony, (C) the prosecution made three improper comments that tainted the fairness of the proceeding, and (D) there was insufficient evidence to support his convictions for the aggravated murder of Ms. Bott and the aggravated burglary of Ms. Chamberlain's home. We reject each of these claims.
A. The Court Did Not Err in Admitting the Expert Testimony Regarding Y-STR DNA and Fingerprint Evidence
1120 Mr. Maestas asserts that the trial court erred when it admitted scientific and expert testimony regarding the Y-STR DNA results and the fingerprint testing because such evidence is unreliable and unduly prejudicial. We disagree.
1121 The admission of scientific evidence and expert testimony is governed by rules 702 and 403 of the Utah Rules of Evidence.
1122 We review a trial court's decision to admit expert testimony for an abuse of discretion and find error only if no reasonable person would take the view the trial court adopted."
1. The Y-STR DNA Expert Testimony Satisfied the Requirements of Rule 702(b) and Rule 403
1123 Before addressing Mr. Maestas's claims concerning the admission of the Y-
1124 At the evidentiary hearing and at trial, Dr. Wrigley testified that the Y-STR DNA analysis uses the same process and technology to extract, amplify, and identify DNA that is generally employed with polymerase chain reaction (PCR) STR DNA tests. But instead of focusing on all the chromosomes in a person's DNA, as in PCR STR testing, the Y-STR analysis focuses specifically on the Y-chromosome, found only in males and inherited through the male's paternal lineage. Dr. Wrigley testified that because all males in the same paternal lineage have the same forensic markers, called alleles, on their Y-chromosomes, the Y-STR analysis indicates whether an individual and all of his paternal relatives can be excluded as possible contributors as the source of a DNA sample. He stated that, although the analysis may not be able to affirmatively identify an individual as the source of the DNA, Y-STR analysis is "a very strong tool for exeluding an individual." Dr. Wrigley testified that a Y-STR analysis is especially helpful when the DNA sample is mixed with female DNA or when there are multiple male suspects. And he explained that the State selected the Y-STR test in this case because the State assumed that Ms. Bott fought her attacker and that they were looking for a male suspect.
1125 Dr. Wrigley also explained the Y-STR analysis process. He stated that, during the short tandem repeat process, analysts look for alleles on the Y-chromosome. The Y-STR analysis generates a graphic representation of the presence of an allele and the amount of relative fluorescence units (RFUs) that the allele generates. Dr. Wrigley testified that Sorenson Forensics's practice is to find a viable marker for any allele with an RFU of 75 or above, and to compare that allele with the unknown source sample (in this case, the DNA found under Ms. Bott's fingernails-"fingernail serapings") to determine if the two samples contain the same allele, When the same allele is present in both samples, the individual cannot be excluded as a possible contributor of the DNA. Dr. Wrigley explained that the statistical significance of such a match is determined by comparing the allele to a database of 3,561 sample Y-chromosomes.
1126 Regarding the Y-STR analysis in this case, Dr. Wrigley stated that the DNA from Ms. Bott's fingernail serapings was not consistent with DNA from Mr. Irish or Mr. Renzo. Thus, both men could be exeluded as the source of the DNA. But Dr. Wrigley testified that the DNA from Ms. Bott's fingernail serapings contained an allele that was consistent with, or that "matched," the DNA from Mr. Maestas. Dr. Wrigley clarified to the jury that the term "match" meant that neither Mr. Maestas nor his paternal relatives could be excluded as the source of the DNA. Then, for statistical purposes, Dr. Wrigley outlined the "random match probability" that someone within the sample database of 8,561 DNA profiles would have the same allele as the DNA from Ms. Bott's fingernail serapings. He explained that the probability that a profile from the database would have the same allele as the DNA from Ms. Bott's fingernail serapings was 1 in 746 for the DNA taken from her left hand and 1 in 1,203 for the DNA taken from her right hand.
1127 After the evidentiary hearing, the court took judicial notice of the reliability of a Y-STR analysis and determined that the analysis was reliably applied to the facts in this case because Sorenson Forensics was qualified to conduct the testing. According ly, the court concluded that the DNA test met the threshold requirements of rule 702(b) and could therefore be presented to the jury. >
(129 On appeal, Mr. Maestas argues that the court abused its discretion in admitting the evidence and expert testimony about the Y-STR DNA testing because (a) the Y-STR analysis did not satisfy the requirements of rule 702(b), and (b) the evidence was more prejudicial than probative, in violation of rule 403. We disagree.
a. The Y-STR DNA Expert Testimony Satisfied the Threshold Requirements of Rule 702(b)
£130 Mr. Maestas claims that the trial court erred in concluding that the Y-STR DNA expert testimony satisfied the requirements of rule 702(b). First, he argues that Y-STR analysis is not generally accepted in the scientific community and that the court therefore erred when it took judicial notice of the inherent reliability of the Y-STR analysis. Second, he asserts that Sorenson Foren-siecs was not qualified to perform the testing and that its minimum threshold of 75 RFUs was inadequate. Accordingly, he claims that the court erred when it concluded that the analysis was reliably applied in this case. We reject these arguments.
1131 First, we conclude that the court did not abuse its discretion when it took judicial notice of the inherent reliability of the Y-STR DNA analysis. A "court may take judicial notice of the inherent reliability of the scientific principles and techniques at issue if they have been generally accepted by the relevant scientific community."
1132 In this jurisdiction, we have previously stated that analyses serving to exclude particular individuals can be inherently reliable.
1133 In addition, the trial court emphasized that STR DNA testing has been accepted by the relevant scientific community and other jurisdictions have treated Y-STR DNA testing as "merely a type of STR DNA testing."
1134 Second, we conclude that the court did not abuse its discretion in determining that Sorenson Forensics was qualified to perform the analysis and that its minimum threshold of 75 RFUs was adequate. As an initial matter, we note that, in determining whether laboratories are qualified to perform certain testing, courts examine whether the laboratory's testing methods are consistent with those that are scientifically acceptable.
1135 Regarding the minimum threshold of 75 RFUs, other courts have admitted DNA analyses that have used RFU thresholds at or below 755
b. The Y-STR DNA Expert Testimony Satisfied the Requirements of Rule 403
1137 Mr. Maestas claims that the trial court abused its discretion when it admitted the Y-STR DNA expert testimony because the testimony was significantly more prejudicial than probative, in violation of rule 403. Specifically, he asserts that, because the prosecution stated that the DNA "matched" Mr. Maestas, the jury was unduly impressed with the evidence. We disagree.
€138 Rule 408 provides that "[the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... misleading the jury."
1 189 In this case, we conclude that the Y-STR DNA evidence was not unduly prejudicial because it was likely that the jury was able to fairly weigh the evidence. As mentioned above, Dr. Wrigley repeatedly explained that the Y-STR analysis was a tool for excluding individuals as the source of the DNA from Ms. Bott's fingernail scrapings. And he consistently stated that the Y-STR DNA test results showed that Mr. Irish and Mr. Renzo could be excluded as the source of the DNA, but that Mr. Maestas and his paternal relatives could not. Although the prosecution and Dr. Wrigley occasionally spoke in terms of the DNA "matching" Mr. Maestas, Dr. Wrigley clarified that a "match" meant that the DNA profiles had the same allele, such that the individual could not be excluded. Because Dr. Wrigley consistently presented the analysis as a tool for exclusion, and clarified that "match" meant only that the individual could not be excluded, the jury would have been able to fairly weigh his testimony. Thus, the Y-STR DNA evidence was not unfairly prejudicial and did not violate rule 408.
140 For the foregoing reasons, we conclude that the Y-STR DNA expert testimony satisfied the requirements of rule 702(b) and rule 408.
2. The Trial Court Did Not Abuse Its Discretion in Admitting the Expert Testimony Regarding Fingerprint Identification Evidence and No Separate Cautionary Jury Instruction Was Warranted
1 141 Mr. Maestas next argues that fingerprint identification evidence is not reliable, and accordingly, that the trial court abused its discretion when it admitted the expert testimony about such evidence. In the alternative, he asserts that even if fingerprint evidence is deemed to be reliable, the trial court erred when it failed to give the jury a separate cautionary instruction regarding the reliability of that evidence. We are not persuaded by either of Mr. Maestas's arguments.
a. The Trial Court Did Not Abuse Its Discretion in Admitting the Expert Testimony Regarding Fingerprint Identification Evidence
$142 As we previously noted, an expert may testify about scientific methods
{143 Nonetheless, Mr. Maestas argues that fingerprint identification evidence is not generally accepted in the scientific community. Accordingly, in his motion to the trial court and in his brief on appeal, Mr. Maestas cites two articles criticizing fingerprint identification evidence.
{144 Further, at the pretrial hearing to consider Mr. Maestas's motion regarding the admissibility of the fingerprint evidence, defense counsel did not argue that fingerprint identification evidence is inherently unreliable or that fingerprint identification methods had been unreliably applied in Mr. Maestas's case. Instead, defense counsel conceded that the Utah Court of Appeals' opinion in State v. Quintana,
1145 In response, the State said that it "was prepared to put on a witness today to satisfy both prongs of the objections in this case." But after defense counsel reported that they would "relent on [the] request for a ... hearing" regarding the reliability of fingerprint evidence, the State asked that its witness be excused. It also asked that the record reflect that "should Quintana have been found to not be applicable to this case, [it] would have put on testimony that fingerprint evidence is unique, that it is inherently reliable, separate and apart from the fact that there is an appellate decision on that point."
1146 Defense counsel did not object or request that the State put forth evidence establishing the reliability of the fingerprint evidence. Nor did defense counsel assert that they were prepared to offer expert testimony to address the questions of whether fingerprint identification evidence is inherently reliable or whether the methods had been reliably applied to the facts of the case. Indeed, defense counsel did not request further discussion on the admissibility of the fingerprint identification evidence at the pretrial hearing, nor did they request an additional hearing on the matter. Further, defense counsel did not present expert testimony, either at the hearing or at trial, asserting either that fingerprint evidence is generally unreliable or that fingerprint identification methods were not properly applied in this case. Morever, defense counsel did not move to strike the expert testimony presented by the State at trial.
{147 Under these circumstances, we cannot say that no reasonable person would have taken the position adopted by the trial court.
b. A Separate Cautionary Jury Instruction Was Not Warranted
1148 Having determined that the trial court did not abuse its discretion in permitting the fingerprint identification evidence, we are not persuaded that a separate cautionary jury instruction about the reliability of fingerprint evidence was warranted. We have previously stated that "fingerprint evidence is not entitled to special treatment" and therefore does not require a special cautionary instruction.
{149 Here, Mr. Maestas requested that the jury be told that "there is no ... basis to believe that fingerprint examiners are infallible" and that "there are no national standards to ensure the proficiency or skill of fingerprint examiners." The trial court denied the request, stating that the information in Mr. Maestas's proposed instruction had been incorporated in the general expert witness instruction. We agree. The expert instruction explained that the jury should "look at [the expert's] qualifications, the reasoning process the experts used, and the overall credibility of their testimony." The instruction further stated that "(experts can testify about facts, and they can give their opinions in their area of expertise," but the jury is free to accept or reject the expert's opinion. This instruction was sufficient to guide the jury in its evaluation of the fingerprint expert's testimony. Thus, Mr. Maes-tas's cautionary instruction was unnecessary.
{150 For the foregoing reasons, we conclude that the trial court did not err in admitting the fingerprint evidence or in failing to give a cautionary instruction about the reliability of such evidence.
B. The Trial Court Did Not Err in Admitting the Medical Examiner's Testimony
1151 Next, Mr. Maestas argues that the trial court abused its discretion when it admitted the medical examiner's testimony that Ms. Bott's injuries were "purposefully inflict, ed" and that they would have been painful. Before addressing his claims, we provide a brief overview of the medical examiner's testimony.
{ 152 During trial, Dr. Grey explained that, in his role as a medical examiner, he determines whether an individual's death was natural, a suicide, an accident, or a homicide. He testified that the medical determination of homicide is different than the criminal determination because, under the medical definition, a homicide means that "the death resulted from the intentional action of another person."
1 153 When the prosecution asked whether the injuries appeared to be "purposefully inflicted," Dr. Grey stated that they did. He explained that, based on the nature, extent, and types of injuries Ms. Bott suffered, her death would not be consistent with someone "tripping and falling." Instead, Dr. Grey concluded that Ms. Bott's death was a homicide, meaning her death was caused by an intentional act of another person. The prosecution also asked Dr. Grey whether the injuries Ms. Bott experienced would have been painful. In response, Dr. Grey explained that he believed that incurring the injuries would have been "a very painful, uncomfortable process" as long as the victim was conscious. On eross-examination, Dr. Grey clarified that he was not a pain specialist and that his speculation that the injuries would be painful was not based on his professional medical opinion.
1 154 On appeal, Mr. Maestas asserts that the trial court committed a prejudicial error in admitting certain portions of the medical examiner's testimony. First, he asserts that the medical examiner's testimony that the injuries were "purposefully inflicted" violated rule 704 of the Utah Rules of Evidence because it improperly addressed Mr. Maestas's mental state. Second, he contends that the
1155 First, we conclude that the medical examiner's testimony did not violate rule 704. Rule 704 states that an expert witness may not "state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged ... [because] these matters are for the trier of fact alone."
1156 Second, even if the medical examiner's testimony was not helpful to the jury, it was not prejudicial. Rule 702(a) permits expert testimony if it "will help the trier of fact to understand the evidence or to determine a fact in issue."
{157 In this case, it may not have been helpful for Dr. Grey to state that the type of injuries Ms. Bott experienced could cause pain in a conscious victim. But we cannot say that the testimony was unduly prejudicial. The idea that a stab wound, strangulation, and blunt force trauma could cause pain was well within the knowledge of the average individual. Having been provided the details about the manner and number of injuries to Ms. Bott's body, the jury could have readily inferred on its own that Ms. Bott's injuries would have been painful to a conscious victim. Coupled with Dr. Grey's testimony that his prediction of pain was not based on his medical expertise, it is unlikely that the jury would have given Dr. Grey's statement significant weight. We therefore conclude that any error was not prejudicial and that the trial court did not abuse its discretion in admitting the medical examiner's testimony.
C. The Prosecution Did Not Engage in Misconduct
[158 Next, Mr. Maestas claims that he is entitled to a new guilt phase because the
T159 As an initial matter, we note that the prosecution's remarks constitute misconduct meriting reversal if they "call to the attention of the jurors matters they would not be justified in considering in determining their verdict and ... the error is substantial and prejudicial such that there is a reasonable likelihood that in its absence, there would have been a more favorable result for the defendant."
1 160 With this standard in mind, we address Mr. Maestas's claims that the prosecution committed misconduct (1) by stating in its closing arguments that "defendants usually testify;" (2) by asserting that Mr. Maestas could test the DNA if he disagreed with the Y-STR analysis results; and (8) by implying, without introducing supporting evidence, that defense witnesses were not credible.
1. The Prosecution's Comment that "Defendants Usually Testify" Was Not Harmful
1161 Mr. Maestas claims that, during rebuttal in closing arguments, the prosecution made a prejudicial comment that violated his constitutional right against self-incrimination. Specifically, he points to the following statement by the prosecution:
[The State's case is] a well built bridge. And it is a bridge with DNA, with fingerprint evidence, with the testimony of two co-defendants. And defendants usually testify. This is a case where all of the bolts are in place, where there is no rust. This is a case that is beyond a reasonable doubt, points to the defendant as the killer of Donna Bott.
Mr. Maestas did not object to the closing argument, but on appeal he asserts that the prosecution's statement that "defendants usually testify" constitutes an obvious and prejudicial error. We disagree.
1162 It is well settled that the prosecution's direct reference to a defendant's decision not to testify "is always a violation of the defendant's [Flifth [Amendment right against self-incrimination."
{163 In this case, we conclude that any error was harmless for the following reasons. As an initial matter, we note that it is unclear whether the prosecution was referring to Mr. Maestas or to his codefendants, Mr. Irish and Mr. Renzo, when the prosecution stated that "defendants usually testify." For example, the State highlights six instances in the prosecution's closing arguments where Mr. Irish and Mr. Renzo were referred to as "defendants." And the prosecution's statement came in rebuttal after defense counsel questioned the motives and credibility of Mr. Irish's and Mr. Renzo's testimonies. Thus, in context, this statement was ambiguous and not likely of such a character that the jury would necessarily construe it to be a comment on Mr. Maestas's failure to testify.
1164 Further, even if the prosecution's comment did refer to Mr. Maestas, the jury was explicitly instructed that it should not consider a defendant's choice not to testify. Specifically, the jury was instructed as follows:
A person accused of a crime may choose whether or not to testify. In this case the defendant chose not to testify. Do not hold that choice against the defendant. Do not try to guess why the defendant chose not to testify. Do not consider it in your deliberations. Decide the case only on the basis of the evidence. The defendant does not have to prove that he is not guilty. The prosecution must prove the defendant's guilt beyond a reasonable doubt.
With this strong instruction, the jury was aware that it should not consider Mr. Maes-tas's decision not to testify as evidence of his guilt.
1165 Finally, the prosecution's statement was not harmful in light of the wealth of evidence implicating Mr. Maestas in Ms. Bott's murder. The jury heard witness testimony that Mr. Maestas punched and stomped on Ms. Bott's body and expert testimony about DNA and fingerprint evidence that linked Mr. Maestas to the scene. Because the jury was given a strong curative instruction and there was overwhelming evidence of Mr. Maestas's guilt, even assuming the prosecution's statement referred to Mr. Maestas, we conclude that any error was harmless beyond a reasonable doubt.
2. The Prosecution's Comment Regarding Mr. Maestas's Ability to Test the DNA Was Not Improper
1166 Mr. Maestas asserts that the prosecution engaged in misconduct when it indicated that he could conduct his own DNA test if he disagreed with the Y-STR DNA results.
1167 In the criminal justice system, a defendant is presumed innocent and the prosecution must prove guilt beyond a reasonable doubt.
T168 In this case, the prosecution's remark was prompted by Mr. Maestas's claims that the State had specifically chosen an inferior and unreliable DNA analysis. Indeed, during closing argument, defense counsel stated, "Why didn't [the State] do the better DNA testing? Why didn't we have a number like one in 400 quintillion? [What the State gives you in asking you to ... convict [Mr.] Maestas of aggravated murder is one in 746." In response, the prosecution explained that the DNA is available for any "better DNA testing" that Mr. Maestas wished to conduct. Because the prosecution's remark simply countered the defendant's arguments that the State purposely selected an unreliable DNA test, it did not shift the burden of proof to Mr. Maestas and we therefore conclude that the remark was not improper.
8. The Prosecution's Insinuation that Certain Prejudicial Information Existed Was Not Harmful
1169 Mr. Maestas claims that the prosecution engaged in misconduct while questioning two defense witnesses on cross-examination. Specifically, he claims that the prosecution "insinuated that additional evidence existed that undermined [two of the defense] witness[es]' testimon[ies], but did not present [any supporting] evidence to the jury."
§1170 Although counsel is afforded "considerable latitude in making arguments to the jury,
1171 But even if the prosecution fails to limit its questioning to the facts that
{172 In this case, there is nothing in the record to suggest that the trial court committed an obvious error when it did not intervene during the prosecution's cross-examination of these two defense witnesses. Indeed, there is no indication the prosecution lacked the ability to prove the facts suggested by its questions. Because the questions Mr. Maes-tas challenges dealt with the secondary issue of the witnesses' credibility, and because the defense did not object to these questions at the time, it is understandable that the prosecution did not present evidence regarding the facts to which it alluded.
1173 But even if the prosecution's questions were improper, such that the court committed an obvious error in failing to intervene, Mr. Maestas has not demonstrated that the comments were prejudicial. Because there is strong proof of Mr. Maestas's guilt, we do not presume that the remarks were prejudicial, Thus, Mr. Maestas must demonstrate a reasonable likelihood that he would have received a more favorable outcome if the prosecution had not asked the challenged questions.
1174 He argues that, if the prosecution had not insinuated that the defense witnesses were untrustworthy, the jury may have believed the defense witnesses' testimony indicating that the codefendants stole Mr. Maes-tas's car and framed him for the crimes that they committed, perhaps motivated to act against Mr. Maestas because of his race. But there are several reasons why the jury would not have found this testimony plausible even without any insinuation that the defense witnesses were untrustworthy. The story conflicts with the codefendants' testimony, the expert testimony about DNA and fingerprint evidence that linked Mr. Maestas to the scene of the crime, and Mr. Maestas's statements to the police investigator that he had been driving his car on the night that the crime occurred. Accordingly, Mr. Maestas has failed to demonstrate that he would have received a more favorable outcome if the prosecution had not asked the questions he challenges.
T175 For the foregoing reasons, we reject Mr. Maestas's arguments that the prosecution's comments entitle him to a new guilt phase.
D. The State Presented Evidence Sufficient to Support Mr. Maestas's Convictions
[176 Finally, Mr. Maestas argues that the State failed to present sufficient evidence to support his convictions for the aggravated murder of Ms. Bott and the aggravated burglary of Ms. Chamberlain's home.
{ 177 "[In considering an insufficiency-of-evidence claim, we review the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict."
1178 First, there is sufficient evidence that Mr. Maestas had the requisite mental state to support his conviction for aggravated murder. Under the aggravated murder statute, the State must prove beyond a reasonable doubt that "the actor intentionally or knowingly cause[d] the death of another" in connection with any of several statutory aggravating factors.
1179 We have recognized that a defendant's mental state can be proven by cir-curstantial evidence,
180 In this case, the evidence is sufficient to indicate that Mr. Maestas intentionally or knowingly caused Ms. Bott's death. The State presented the testimony of Mr. Irish and Mr. Renzo, who stated that they had observed Mr. Maestas punch and stomp on Ms. Bott's body. In addition, the jury heard the testimony of the medical examiner, who described Ms. Bott's numerous injuries-including a stab wound to her face; extensive bruises and abrasions on her chest, shoulders, abdomen, face, knees, and hips; injuries consistent with strangulation; several broken ribs; tearing around her heart; and a tear in her aorta. Given the witness testimony, the nature and multiple types of injuries, and the age of the victim, the jury could have reasonably inferred that Mr. Maestas's "conscious objective" was to cause Ms. Bott's death or that he was "reasonably certain" that his conduct would cause her death. Accordingly, we reject his claim that there was insufficient evidence to show that he acted with the requisite intent or knowledge.
1181 Second, there is sufficient evidence that Mr. Maestas committed the aggravated burglary of Ms. Chamberlain's home. Under the aggravated burglary statute, the State must prove beyond a reasonable doubt that the actor committed burglary in connection with one of several aggravating factors.
1182 In this case, Ms. Chamberlain testified that she saw someone enter her home through the window who then pulled her shirt over her head. She testified that, as the person pulled off her shirt, he seratched her arm causing it to "bleed[ ] really badly." And Mr. Renzo testified that he saw Mr. Maestas hit Ms. Chamberlain two times.
1188 Although he acknowledges this evidence, Mr. Maestas asserts that the court cannot rely on the testimony of Mr. Irish or Mr. Renzo because their statements were self-serving and conflicted with Ms. Chamberlain's testimony. But "[clontradie-tory testimony alone is not sufficient to disturb a jury verdict."
1184 Here, we cannot say that Mr. Irish or Mr. Renzo's testimony was physically impossible or inherently improbable. Indeed, a good deal of Mr. Irish's and Mr. Renzo's testimony was consistent with Ms. Chamberlain's. For example, just as Ms. Chamberlain testified, Mr. Renzo testified that Mr. Maestas pulled Ms. Chamberlain's shirt over her head and demanded her purse. In addition, the jury could have found Mr. Renzo and Mr. Irish credible because their version of the night's events was corroborated by the DNA and fingerprint evidence found at Ms. Bott's home and by the fact that Ms. Chamberlain's wallet was found inside Mr. Maes-tas's car. In light of these facts, Mr. Maes-tas has not established that the evidence was so inconclusive or inherently improbable that the jury must have entertained a reasonable doubt that he committed the aggravated burglary of Ms. Chamberlain's home. Accordingly, we conclude that there is sufficient evidence to support Mr. Maestas's convie-tions for the aggravated murder of Ms. Bott and the aggravated burglary of Ms. Chamberlain's home.
1 185 In sum, we reject each of Mr. Maes-tas's four challenges concerning the evidence and arguments presented during the guilt phase of his trial We therefore decline to grant him a new guilt phase on these bases.
III DEATH PENALTY EXEMPTION HEARING
186 Prior to the guilt phase of the trial, Mr. Maestas filed a motion pursuant to Atkins v. Virginia
187 As an initial matter, we note that, in Atkins, the U.S. Supreme Court held that executing mentally retarded individuals constitutes cruel and unusual punishment under the Eighth Amendment "in the light of ... evolving standards of decency."
In accordance with the holding in Atkins, the Utah Legislature enacted the Exemption Statute,
(1) the defendant has significant subaver-age general intellectual functioning that results in and exists concurrently with significant deficiencies in adaptive functioning that exist primarily in the areas of reasoning or impulse control, or in both of these areas; and
(2) the subaverage general intellectual functioning and the significant deficiencies in adaptive functioning under Subsection (1) are both manifested prior to age 22.227
1189 The Exemption Statute presumes that a defendant is not mentally retarded and places the burden on the defendant to prove by a preponderance of the evidence that he or she meets both prongs of the statutory definition.
190 Pursuant to Mr. Maestas's request, the trial court held a hearing (Atkins hearing) to determine whether he met the definition of "mentally retarded" under the Exemption Statute. Over the course of three days, the court heard testimony regarding Mr. Maestas's intellectual and adaptive functioning, including testimony from two mental health experts for the defense and one mental health expert for the prosecution. The court concluded that, although Mr. Maestas had demonstrated SDAF in the area of impulse control, he had failed to demonstrate either SDAF in the area of reasoning or SSGIF. The court also concluded that Mr. Maestas had not shown that his intellectual deficits resulted in his adaptive functioning deficits. Thus, the court determined that he did not qualify as mentally retarded under the Exemption Statute.
A. The Trial Court Did Not Err in Concluding that Mr. Maestas is Not Mentally Retarded
Mr. Maestas argues that the trial court erred in concluding that he had failed to demonstrate by a preponderance of the evidence that he met the statutory definition of "mentally retarded." As discussed above, the Exemption Statute requires defendants to prove that they have both "significant subaverage general intellectual functioning" and "significant deficiencies in adaptive functioning" in the area of reasoning or impulse control.
1193 Because we must consider the trial court's interpretation of the Exemption Statute, as well as its application to the facts of Mr. Maestas's case, we are faced with a mixed question of fact and law. "[With regard to many mixed questions of fact and law, it is either not possible or not wise for an appellate court to define strictly how a legal concept is to be applied to each new set of facts.
1. The Showing Required to Establish Significant Subaverage General Intellectual Functioning Under the Exemption Statute
1195 As an initial matter, we note that, although the Exemption Statute requires defendants to demonstrate "significant subaverage general intellectual functioning" by a preponderance of the evidence,
1 196 Both the language and the context of the Exemption Statute make it clear that, to be considered mentally retarded, a defendant must have substantial intellectual impairments such that his or her intellectual functioning is significantly below average. Indeed, the Exemption Statute explicitly states that "a defendant is 'mentally retarded" if the defendant has significant subaverage general intellectual functioning that results in and exists concurrently with significant deficien-cles in adaptive functioning that exist primarily in the areas of reasoning or impulse control."
{197 Indeed, the purpose of the Exemption Statute is to set Utah's standard for determining whether defendants are mentally impaired to such a degree that it would be unconstitutional to apply the death penalty to them. The U.S. Supreme Court has noted that "[njot all people who claim to be mentally retarded [will bel so impaired as to fall within the range of mentally retarded offenders"
1198 In determining whether defendants have demonstrated SSGIF, scores on intelligence quotient (IQ) tests can be one helpful measure.
199 Indeed, in Atkins, the U.S. Supreme Court noted that states' "statutory definitions of mental retardation generally conform to the clinical definitions" of the American Psychiatric Association (APA) and the American Association on Mental Retardation, which is now called the American Association of Intellectual and Developmental Disabilities
1200 But we note that IQ scores are just one factor to be considered in determining if the defendant has SSGIF. The testing instrument or other cireumstances may result in an IQ score that does not truly reflect a defendant's intellectual functioning.
2. The Trial Court Did Not Err in Conelud-ing that Mr. Maestas Lacked Significant Subaverage General Intellectual Functioning
1201 Having considered the showing required to establish "significant general intellectual functioning" under the Exemption Statute,
202 In determining that Mr. Maestas had not adequately demonstrated SSGIF, the court considered the reports from mental health experts, the testimony of those experts and other witnesses, and the exhibits entered into evidence. Much of the testimony and evidence focused on Mr. Maestas's IQ and background. In regard to Mr. Maestas's IQ, the court heard extensive testimony about the validity of IQ tests in general, the validity of the various IQ tests that had been administered to Mr. Maestas over time, and other research and theories about IQ tests, including how factors like the standard error of measurement
€ 208 In reaching this conclusion, the trial court found that Mr. Maestas's seore of seventy-seven on an IQ test in 2005 "constituted] meaningful evidence suggesting that [Mr. Maestas's] general intellectual functioning is not significantly [sJlubaverage." Indeed, the court accepted the prosecution's expert testimony that, if the test had been administered and seored properly, it would have resulted in an IQ score of at least eighty-five.
1204 Noting that "[the experts agreed that scores from IQ tests are not determinative of a person's intellectual functioning," the court went on to consider other factors to determine whether the severity of Mr. Maestas's intellectual impairments rose to the level of SSGIF. One such factor was that Mr. Maestas had struggled academically and was enrolled in special education classes in school. But the court found that, without more, evidence of his academic difficulties was insufficient to establish the requisite intellectual deficits.
1205 Because there is adequate evidence to support the trial court's factual findings and inferences, we conclude that it did not err in ruling that Mr. Maestas failed to adequately demonstrate that his general intellectual functioning was significantly subaver-age.
B. We Do Not Consider Whether the Statute Requires a Causal Relationship Between a Defendant's Significantly Subaverage General Intellectual Functioning and His Significant Deficits in Adaptive Functioning
1206 Mr. Maestas challenges the trial court's interpretation of the Exemption Statute's requirement that a defendant show that his "significant subaverage general intellectual functioning ... results in" his "significant deficits in adaptive functioning."
C. We Reject Mr. Maestas's Constitutional Challenges to Utah's Exemption Statute
Y207 Mr. Maestas argues that the Exemption Statute is unconstitutional because (1) it violates the Sixth Amendment by allowing the trial court, rather than a jury, to determine whether a defendant is mentally retarded, and (2) it violates the Eighth Amendment and the Due Process Clause by requiring the defendant to prove by a preponderance of the evidence that he is mentally retarded, rather than placing the burden on the State to prove beyond a reasonable doubt that the defendant is not mentally retarded.
1208 Mr. Maestas offers two main arguments in support of his claims. First, he asserts that the holding in Atkins makes the absence of mental retardation an element necessary to impose death and that the State therefore has a duty to prove the absence of
$209 "To establish that the error should have been obvious to the trial court, [a defendant] must show that the law governing the error was clear at the time the alleged error was made.
1210 First, we note that neither we nor the U.S. Supreme Court have directly considered whether the Sixth Amendment requires a jury to determine whether a defendant is mentally retarded for purposes of death penalty eligibility. We have also not considered whether the Eighth Amendment and the Due Process Clause require the State to bear the burden of proving that a defendant is not mentally retarded before the death penalty can be imposed. Thus, there is no governing law in this jurisdiction that would support Mr. Maestas's claim that the trial court committed an obvious error in applying the provisions of the Exemption Statute that he challenges. Further, in other jurisdictions, some courts have ruled that it does not violate a defendant's constitutional rights for a judge to determine whether a defendant is mentally retarded for purposes of death penalty eligibility.
{211 Second, Mr. Maestas's arguments that the absence of mental retardation is analogous to an element of a crime or an aggravating factor do not comport with the law governing these issues. The absence of mental retardation is unlike an element of a crime, such as intent, that must be proven to the jury before a defendant can be convicted. Indeed, mental retardation has nothing to do with a defendant's conviction; it relates solely to the sentence that the defendant is eligible to receive.
€ 212 Further, in Atkins, the Court did not define mental retardation as an element that must be proven to a jury; instead, Atkins analogized mental retardation to an affirmative defense.
1213 Indeed, in Atkins, the Court recognized that "mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes.
[ 214 Similarly, the absence of mental retardation is not an aggravating cireumstance in capital sentencing. Indeed, in Atkins, the Court stated that, although "[those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes,"
[ 215 Indeed, when a defendant is conviet-ed of a crime that provides for the death penalty as a possible sentence, "an increase in a defendant's sentence is not predicated on the outcome of the mental retardation determination; only a decrease."
1 216 Third, we note that practical considerations and procedural protections support our conclusion that it was not an obvious error for the trial court to take the role of determining whether Mr. Maestas was mentally retarded and to have Mr. Maestas bear the burden of proof on this matter. The court is well equipped by experience and training to evaluate and weigh complex evidence and expert testimony about a defendant's mental functioning. And although "[the difficulties a mentally retarded person may have in testifying, communicating, and expressing remorse may negatively influence the jury,"
1217 Further, Utah's death penalty scheme has other procedural safeguards to ensure that there is a high degree of confidence that the death penalty is appropriate. Indeed, even though the court determined whether Mr. Maestas qualified as mentally retarded under the Exemption Statute, the State was required to prove to the jury that the aggravating cireumstances outweighed the mitigating circumstances beyond a reasonable doubt and that death was the appropriate penalty.
1 218 In sum, because Mr. Maestas failed to prove by a preponderance of the evidence that he had the requisite intellectual deficits, we uphold the trial court's conclusion that he did not qualify as mentally retarded under the Exemption Statute. And, because we uphold the court's finding that Mr. Maestas lacked significant subaverage general intellectual functioning, it is unnecessary for us to consider whether the Exemption Statute requires that a defendant's intellectual deficits have a causal relationship to his deficits in adaptive functioning. Finally, we conclude that the trial court did not commit an obvious error in applying the provisions of the Exemption Statute that allow the court to determine whether a defendant is mentally retarded and require the defendant to bear the burden of proof regarding mental retardation.
IV. PENALTY PHASE
{219 The Utah Code provides that "[when a defendant has pled guilty to or been found guilty of a capital felony, there shall be further proceedings before the court or jury on the issue of sentence."
1220 Mr. Maestas challenges certain evidence presented in the penalty phase of his trial. Specifically, he asserts that he is entitled to a new penalty phase because the trial court erred (A) in granting his request to waive the right to present mitigating evidence, (B) in denying his motion to present the jury with evidence regarding the execution process and prison conditions, and (C) in allowing the State to present certain evidence as aggravating cireumstances. We reject each of these claims.
A. The Trial Court Did Not Err in Granting Mr. Maestas's Request to Waive the Right to Present Mitigating Evidence
1221 Mr. Maestas argues that he is entitled to a new penalty phase because the trial court erred in granting his request to waive the right to present mitigating evidence. Before addressing his claim, we set forth the circumstances of Mr. Maestas's waiver.
1 222 Following the State's presentation of aggravating cireumstances, the defense began to present evidence of mitigating cireum-stances. -Its first witness was a police officer who testified about the poverty and difficult living conditions in Mr. Maestas's childhood hometown. The officer also testified about responding to a homicide at the Maestas home involving the stabbing of Mr. Maestas's sister by her boyfriend. The court recessed after this testimony.
1223 The next morning, before the jury entered the courtroom, Mr. Maestas presented a letter to the court objecting to certain mitigating evidence that defense counsel intended to present.
1225 At that point, the court reminded defense counsel that a defendant has the right to direct his defense. The court also expressed concern over defense counsel's unwillingness to compromise and their determination to present evidence in violation of Mr. Maestas's wishes. The court then asked, "In light of what I've just stated is there any hope, are you willing to accommodate his desires?" Defense counsel responded, "From our point of view it's not negotiable." Counsel added that they would "not simply . follow Mr. Maestas's wishes on this" unless the court ordered them "not to present evidence that ... contravenes Mr. Maes-tas's wishes."
« 226 In considering Mr. Maestas's request to dismiss his counsel because they insisted on presenting mitigating evidence to which he objected, the court concluded that waiver of counsel "at this point[,] under the ciream-stances{,] cannot be voluntary," because defense counsel's insistence on presenting evidence that contravened Mr. Maestas's wishes placed him in a position where he felt he had to waive counsel in order to prevent the evidence to which he objected from coming forward. Accordingly, the court ordered defense counsel "to advise Mr. Maestas of mitigation,] [ilts purpose, its effect, its reasons, what it's intended to show, what [it] is intended to demonstrate[,] [and] the reasons why defense counsel thinks it's appropriate." It further ordered counsel "to consult with Mr. Maestas as to what changes, if any, to that testimony [there] will be. And then abide by Mr. Maestas's wishes regarding mitigation presentation. If that means no mitigation will be presented, so be it."
1227 After providing defense counsel the opportunity to talk with Mr. Maestas, the court met again with Mr. Maestas, defense counsel, and the prosecution. Defense counsel reported what they had explained to Mr. Maestas concerning the purpose and importance of mitigating evidence, and they proffered to the court the mitigating evidence that they were planning to present.
11 228 The court again asked Mr. Maestas if he understood that it was in his best interest to present the evidence, and Mr. Maestas responded in the affirmative. Likewise, the court asked if Mr. Maestas had fully considered defense counsel's advice not to waive the right to present mitigating evidence, as well as the potential consequences of not presenting the mitigating evidence. Mr.
1 229 In addition, the court asked whether anyone was forcing Mr. Maestas to waive the right to present mitigating evidence, whether any promises had been made to get him to make this decision, and whether he had received any information from any source to convince him to waive the right to present mitigating evidence. Mr. Maestas responded in the negative to each question. He informed the court that he made the decision "from [his] own free will." Regarding his request to dismiss his counsel, Mr. Maestas reported to the court that he had decided to retain his counsel because he felt that the attorneys would be better able to handle the closing argument. Following this discussion, defense counsel objected at length to Mr. Maestas's request to waive the right to present mitigating evidence, arguing that counsel had a constitutional duty to both investigate and present mitigating evidence on a defendant's behalf.
€ 230 At that point, the court held another recess. Upon returning, the court again reiterated that Mr. Maestas had been advised by his attorneys and the court that it was in his best interest to present mitigating evidence. The court then asked Mr. Maestas, "[GJiven my advice, [and] your attorneys' advice to continue as intended with mitigation evidence, do you wish to change and follow that advice, or are you going to insist on going forward without the mitigation evidence?" Mr. Maestas responded, "I insist on going forward without the mitigation evidence." After further discussion, the court said, "I'm going to give you one last opportunity to change your mind if that's what you would like at this point." Mr. Maestas responded, "I won't change my mind, your Honor." The court then explained that, if Mr. Maestas insisted on waiving the presentation of mitigating evidence, this decision would be irrevocable. Mr. Maestas responded that he understood. The court then stated that it found Mr. Maestas "knowingly, voluntarily and intelligently ... waived [the] right to present additional mitigation evidence in this trial." Accordingly, the court ordered defense counsel not to present further mitigating evidence.
1 231 In accordance with the court order, defense counsel did not present any other mitigating evidence. Instead, Mr. Maestas briefly addressed the jury prior to closing arguments. While addressing the jury, he said, "My attorneys wanted to put on evidence ... which was kind of important. And it kind of covered my background a little bit, and it had something to do with my family." But he explained, "I didn't want my family to become involved in this case so I asked them not to put on any evidence." Mr. Maestas went on to state, "I accept your verdict. I feel bad about Ms. Bott. I feel bad about Ms. Chamberlain. And I feel bad about everybody." He concluded by saying, "From the beginning I said I wasn't guilty of this crime. And today, again, I'm going to tell everybody I didn't kill Ms. Bott. I hope you understand because I didn't. And I'm sorry. Thank you for listening-listening to my case."
1232 During closing arguments, defense counsel explained to the jury that certain mitigating evidence had not been presented at Mr. Maestas's request "because it was so terrible, and so horrifying, and so upsetting to him and his family, that he would rather face a death sentence than have you hear what kind of life and background he came from." Defense counsel then reiterated testimony given by the police officer regarding the fatal stabbing of Mr. Maestas's sister and the "damaging environment" of Mr. Maes-tas's early childhood home. Counsel also highlighted the testimony given by a witness for the prosecution that Mr. Maestas's behavior in prison had improved over time and that he had gone long periods of time without any discipline.
233 On appeal, Mr. Maestas argues that the trial court violated his Sixth Amendment right to counsel when it ordered defense counsel not to present further mitigating evidence,
1. The Trial Court Did Not Violate the Sixth Amendment by Granting Mr. Maestas's Request to Waive the Right to Present Mitigating Evidence
1234 The Sixth Amendment provides that "[iJn all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."
1235 But the U.S. Supreme Court has held that the Sixth Amendment "implies a right in the defendant to conduct his own defense, with assistance at what, after all, is his, not counsel's trial
1237 Like other decisions that a represented defendant has the right to make, such as the decision to plead guilty to an offense or testify in the proceedings,
©2838 Although Mr. Maestas argues that our decision in Arguelles addressed only the right of unrepresented defendants to waive the right to present mitigating evidence, there is nothing in our reasoning to limit our holding to unrepresented defendants. Our conclusion was based on a defendant's right to "control the course of proceedings,"
1 240 Similarly, in State v. Wood, we recognized that defendants do not lose the right to direct their defense by virtue of having retained representation.
1 241 We also note that, although the U.S. Supreme Court has not directly addressed this issue, it has indicated that a represented defendant may waive the right to present mitigating evidence. For example, in Blystone v. Pennsylvania, the Court noted that, "contrary [to] advice from his counsel," the defendant "decided not to present any proof of mitigating evidence during his sentencing proceedings."
242 Thus, because the Sixth Amendment is meant to protect the control a defendant has over his or her own case, we decline to interpret the amendment as limiting a defendant's "right to control the nature of his or her defense"
1243 In this case, after Mr. Maestas informed the court that he wished to dismiss defense counsel and proceed as his own counsel, the trial court stated that he could not knowingly and voluntarily waive the right to counsel. The court concluded that, because of "intransigence on the part of defense counsel," Mr. Maestas was essentially placed in a position where he felt forced to dismiss his counsel in order to prevent the presentation of the evidence to which he objected. "To avoid forcing a defendant to resort to self-representation,"
$244 Accordingly, rather than granting Mr. Maestas's request to proceed as his own counsel, the court instructed defense counsel to discuss with Mr. Maestas the role of mitigating evidence and the evidence that they planned to present, and then to reach a compromise with Mr. Maestas regarding the presentation of mitigating evidence. After this discussion, defense counsel reported that Mr. Maestas did not want any negative information about his family to be presented. But instead of reaching a compromise with Mr. Maestas, as instructed by the court, counsel insisted on presenting all the mitigating evidence that they had planned. After further discussion between Mr. Maestas, the court, and counsel, Mr. Maestas agreed to retain defense counsel but maintained that he wanted to waive the presentation of all mitigating evidence. Under these circumstances, accepting Mr. Maestas's waiver was appropriate in light of both his right to counsel and right to direct his case because it allowed Mr. Maestas a say in his defense while enabling him to remain represented by defense counsel.
11 245 Further, we note that the trial court conducted a lengthy and searching inquiry before concluding that Mr. Maestas had knowingly and voluntarily waived his right to present mitigating evidence. Indeed, before making its determination, the court gave counsel multiple opportunities to speak with Mr. Maestas, and it specifically required counsel "to advise Mr. Maestas of mitigation{, ilts purposes, its effects, its reasons, what it's intended to show, what [it] is intended to demonstrate[, and] the reasons why defense counsel thinks it's appropriate." In addition to privately meeting with Mr. Maestas, defense counsel proffered to the court, in Mr. Maestas's presence, a summary of the mitigating evidence that they planned to present. Both counsel and the court repeatedly reiterated to Mr. Maestas the importance of presenting mitigating evidence. Following this extensive discussion, the court asked Mr. Maestas several questions to make sure he was knowingly and voluntarily waiving the presentation of mitigating evidence, and Mr. Maestas responded appropriately to each question.
1246 Nonetheless, Mr. Maestas contends that, because he suffers from some degree of intellectual impairment, this inquiry was not sufficient to determine if he had knowingly and voluntarily waived his right to present mitigating evidence. But we have "recognized a competent defendant's right to exert control over his or her defense."
1247 In this case, Mr. Maestas's competency was never challenged. Although he has put forth evidence regarding intellectual impairments, this evidence does not call his competency into question.
1248 For the foregoing reasons, we conclude that the trial court's acceptance of Mr. Maestas's waiver and its order that counsel not present further mitigating evidence did not violate Mr. Maestas's Sixth Amendment right to counsel.
2. Mr. Maestas's Waiver of the Right to Present Mitigating Evidence Did Not Violate the Eighth Amendment by Rendering His Death Sentence Unreliable
1249 Mr. Maestas also contends that the lack of mitigating evidence presented during the penalty phase resulted in an unreliable sentence in violation of the Eighth Amendment. We disagree.
1250 The U.S. Supreme Court has held that the Eighth Amendment requires that a "capital defendant generally must be allowed to introduce any relevant mitigating evidence regarding his character or record and any of the circumstances of the offense."
{251 Additionally, in State v. Arguelles, we explained that a defendant's decision to waive the presentation of mitigating evidence did not affect the reliability of his death sentence because other procedural safeguards ensured that his sentence satisfied the requirements of the Eighth Amendments
1252 These three procedural safeguards also ensured the reliability of Mr. Maestas's death sentence in spite of his decision to waive the presentation of further mitigating evidence. First, the jury found Mr. Maestas guilty beyond a reasonable doubt of committing aggravated murder, which is a death-eligible offense.
1258 Second, the jury was properly instructed regarding the standard for imposing the death penalty. The jury was instructed that it could return a sentence of death only if it was persuaded beyond a reasonable doubt that the State had established both that "the totality of aggravating cireum-stances outweighs the totality of mitigating circumstances ... in terms of their respective substance and persuasiveness," and "that the imposition of the death penalty is justified and appropriate in this case." The jury was further instructed, "[EJven if you determine that the totality of aggravating cireum-stances outweighs the totality of mitigating
{254 Further, in determining whether the imposition of the death penalty was appropriate in this case, the jury was informed that it could consider factors "including, but not limited to," (1) "[the nature and cireamstances of the crime"; (2) Mr. Maestas's "character, background, history, mental and physical condition"; (8) the "impact of the crime on the victim's family and community"; and (4) "any other facts in aggravation or mitigation of the penalty." Similarly, the jury was instructed that, "in determining whether aggravating or mitigating cireumstances exist, you may consider all of the evidence produced either by the State or the defendant in this hearing and during the guilt phase of the trial, including testimony and exhibits admitted and presented to you during either proceeding."
(255 Third, Mr. Maestas's sentence withstands our appellate review. As discussed, both defense counsel and the trial court thoroughly reviewed the purpose and importance of mitigating evidence with Mr. Maestas, as well as the potential consequences of waiving the presentation of such evidence. The court conducted a rigorous inquiry into the cireum-stances of Mr. Maestas's waiver to ensure that Mr. Maestas fully understood the potential consequences of his decision to proceed without mitigating evidence and that his waiver was knowing and voluntary. Following this inquiry, Mr. Maestas was given the opportunity to address the jury, and, in closing arguments, defense counsel directed the Jury to the mitigating evidence that had been presented prior to Mr. Maestas's waiver, as well as other evidence favorable to Mr. Maes-tas. In addition, the jury was properly instructed regarding the weighing of aggravating and mitigating evidence, as well as the standard for returning a sentence of death. In light of these procedural safeguards, we conclude that Mr. Maestas's waiver of the right to present mitigating evidence did not violate the Eighth Amendment by rendering his death sentence unreliable.
11 256 Finally, we note that Mr. Maestas, as required by the Eighth Amendment,
Mr. Maestas's Waiver of the Right to Present Mitigating Evidence Did Not Violate Article I, Section 9 of the Utah Constitution
$257 Finally, we conclude that Mr. Maestas's waiver of the right to present mitigating evidence did not violate the "unnecessary rigor" clause of article I, section 9 of the Utah Constitution. That clause states that "[plersons arrested or imprisoned shall not be treated with unnecessary rigor."
[ 258 Despite the fact that article I, section 9 is focused on a defendant's confinement, Mr. Maestas argues that the provision applies to the penalty phase of a capital trial. Specifically, he contends that "[clarrying out a death sentence is part of the nature of the process and conditions of confinement." He argues that "article I, section 9 requires at the very least that death sentences be imposed in a reliable manner, that sentences be individualized, and that the jury consider all relevant mitigating evidence."
1 259 Given our explicit language that article I, section 9 is focused on the "process and conditions of confinement,"
1260 In sum, Mr. Maestas's decision to waive the presentation of mitigating evidence did not violate the Sixth Amendment, the Eighth Amendment, or article I, section 9 of the Utah Constitution. Accordingly, we conclude that the trial court did not err in granting Mr. Maestas's request to waive the presentation of mitigating evidence and we decline to grant him a new penalty phase on this basis.
B. The Trial Court Did Not Err in Denying Mr. Maestas's Motion to Allow the Jury to View the Manner of Execution or Incarceration
1261 During the penalty phase of the trial, Mr. Maestas filed motions to allow the jury to view both the manner in which he would be executed, should he receive a sentence of death, and the manner in which he would be imprisoned, should he receive a sentence of life without parole. In the alternative, his motions requested that he be allowed to introduce evidence regarding the manner of execution and imprisonment. The trial court denied these motions, reasoning that such information was not proper mitigating evidence. On appeal, Mr. Maestas argues that the trial court's decision violated his rights under the Eighth Amendment of the U.S. Constitution because that constitutional provision allows him to present any evidence that might cause the jury to decline to impose a sentence of death. We are not persuaded by Mr. Maestas's argument.
1262 We recognize that the Eighth Amendment "establishes two separate prerequisites to a valid death sentence."
1263 Although the Eighth Amendment allows for the presentation of evidence related to the defendant's character, the defendant's history, or the circumstances of the crime, it does not require a court to allow any other evidence that might cause the jury to decline to impose a sentence of death.
«[ 264 In this case, because information regarding the execution process and conditions of imprisonment does not relate to Mr. Maes-tas's personal culpability, we reject his claim that such information is constitutionally required. Indeed, information regarding the manner of execution and imprisonment was not related to Mr. Maestas's character, his background, or the cireumstances of his offense. Further, other jurisdictions agree that "evidence regarding the conditions of prison life in a maximum security prison is not proper mitigating evidence"
C. The Trial Court Did Not Commit Any Prejudicial Error in Admitting Certain Evidence of Aggravating Circumstances
1265 In a penalty phase proceeding, the jury is presented with evidence to determine whether the totality of the aggravating circumstances outweighs the totality of the mitigating cireumstances beyond a reasonable doubt.
1266 Concerning the aggravating cireum-stances, the jury may hear evidence on the statutory aggravating factors that raise the crime from criminal homicide to the charge of aggravated murder.
267 With this understanding, we turn to Mr. Maestas's arguments on appeal. Mr. Maestas claims that the trial court erred in allowing the jury to consider (1) as statutory aggravating factors that the murder was committed in an especially heinous or cruel manner and in the course of an attempt to commit forcible sexual abuse, (2) evidence that two of his prior convictions involved crimes greater than those to which he pled guilty, (8) victim impact evidence regarding his prior crimes and the aggravated murder of Ms. Bott, and (4) other evidence of aggravating cireumstances. We reject each of Mr. Maestas's claims and we affirm his sentence.
1. Mr. Maestas Was Not Prejudiced When the Jury Concluded that His Crime Satisfied Two Statutory Aggravating Factors
1268 As discussed above, in the penalty phase of a capital trial, a jury may consider the statutory aggravating factors that elevate the crime to aggravated murder.
1269 In the guilt phase of this case, the jury was presented with evidence supporting four statutory aggravating factors: the homicide was committed (1) in the course of an aggravated robbery;
270 In the penalty phase, the State, during its presentation of aggravating cireum-stances, included the four statutory aggravating factors that the jury had found during the guilt phase. In addition, the trial court instructed the jury that it could consider all four statutory aggravating factors, among other cireumstances, when it considered whether the totality of the aggravating circumstances outweighed the totality of the mitigating cireumstances. After weighing the aggravating and mitigating cireum-stances, the jury decided that the totality of the aggravating cireumstances outweighed the totality of the mitigating cireumstances
T271 On appeal, Mr. Maestas alleges that he is entitled to a new penalty phase because there was insufficient evidence for the jury to find the statutory aggravating factors of heinousness and attempt to commit forcible sexual abuse.
T 272 As an initial matter, we note that "we will not automatically set aside a death sentence if one [statutory] aggravating factor is [later found to be} invalid."
1273 In this case, there is considerable evidence supporting the conclusion that the jury did not err in finding that the murder was especially heinous or eruel
1274 First, under Utah's death penalty scheme, the jury is not limited to considering only the statutory aggravating factors that it found during the guilt phase.
1275 Second, even if the two statutory aggravating factors were removed from the jury's calculus, the overall aggravating circumstances would still outweigh the mitigating circumstances beyond a reasonable doubt. Indeed, Mr. Maestas recognizes that the jury found two other statutory aggravating factors that it could properly consider in determining the appropriate penalty.
276 For these reasons, we conclude that any alleged error in the jury's consideration of the two statutory aggravating factors was harmless, and that the imposition of the death penalty was therefore justified and appropriate.
2. The Trial Court Did Not Commit Prejudicial Error in Allowing the State to Present Evidence that Mr. Maestas Committed Greater Crimes than Those to Which He Pled Guilty
277 Mr. Maestas raises several claims of error concerning the introduction of evidence that he committed greater crimes than those to which he pled guilty. Before addressing his specific claims, however, we provide a brief overview of the law concerning the
1278 As discussed above, Utah's death penalty scheme provides that, during the penalty phase of a capital trial, the jury may consider, among other things, evidence relating to "the defendant's character, background, [and] history."
T279 In this case, the State sought to prove beyond a reasonable doubt that Mr. Maestas had committed two other aggravated burglaries in the past. Specifically, the State proffered evidence that Mr. Maestas had committed the aggravated burglary of Alinda McClean's home in the 1970s and the aggravated burglary of Leone Nelson's home in the 1980s.
1280 Regarding the aggravated burglary of Ms. McClean's home, the State introduced testimony of the police officer who investigated the crime. The officer testified that, in 1976, an intruder broke into the home of seventy-nine-year-old Ms. McClean, stole her television and other personal property, and severely beat her. As a result of the assault, Ms. McClean had severe bruising on her face, chest, head, feet, and legs. In addition, Ms. McClean's right eye had to be removed. The officer also testified that Ms. McClean had blood and skin under her fingernails, leading the police to conclude that she had fought her attacker. At the time of the incident, Ms. McClean gave police a description of the assailant and the description matched Mr. Maestas. The officer also stated that, one day after the attack, Mr. Maes-tas was in possession of the television and other personal property that had been stolen from Ms. McClean's home. Further, the officer testified that Mr. Maestas had scratches on his body and that he gave police a false alibi for the night of the incident.
281 The State also introduced the testimony of Ms. McClean's granddaughter, who described her grandmother's injuries.
1282 Regarding the aggravated burglary of Ms. Nelson's home, the State introduced the testimony of Ms. Nelson. Ms. Nelson stated that, in 1989, a man attacked her in her home and tried to rob her. In describing the attack, Ms. Nelson testified that she was hit repeatedly on her face and back, choked until she almost passed out, stomped on, and had her clothes ripped off her body. Ms.
$283 At the conclusion of the penalty phase, the jury was instructed regarding the elements of aggravated burglary. The jury was also informed that, if it found beyond a reasonable doubt that Mr. Maestas had committed the aggravated burglary of Ms. McClean's home or of Ms. Nelson's home, it could consider this evidence as an aggravating cireamstance. In addition, the jury was instructed that, even if it found that Mr. Maestas had committed the aggravated burglaries, it could also consider his convictions for theft and theft by receiving, which resulted from these same incidents, as additional aggravating circumstances. After its deliberation, the jury concluded beyond a reasonable doubt that Mr. Maestas had committed both aggravated burglaries.
11 284 On appeal, Mr. Maestas asserts that he is entitled to a new penalty phase proceeding for three reasons: (a) the trial court erred in allowing the State to introduce evidence that his prior convictions involved greater crimes than those to which he pled guilty, (b) the trial court committed plain error in admitting the parole revocation doe-uments into evidence, and (c) the jury's finding was erroneous because there was insufficient evidence to conclude beyond a reasonable doubt that he had committed the two prior crimes. We disagree.
a. The Trial Court Did Not Err in Allow ing the State to Introduce Evidence that Mr. Maestas Had Committed Two Other Aggravated Burglaries in the Past
1285 Although Mr. Maestas recognizes that our holding in Lafferty I allows the State to present evidence of criminal conduct that did not result in a conviction, he argues that the trial court erred in allowing evidence of these aggravated burglaries for four reasons. First, he claims that it was unduly prejudicial for the jury to be "tainted by the inflammatory nature" of the two other aggravated robberies because the crimes would "remind the jurors of the underlying capital homicide." Second, he contends that our holding in Lafferty I is inapplicable here. He argues that Lofferty I permits only evidence of conduct for which the defendant was mot convicted, and, by pleading guilty to the lesser offenses of theft and theft by receiving, he was convicted for the incidents involving Ms. McClean and Ms. Nelson. Third, he asserts that the trial court violated his constitutional protection against double jeopardy by allowing the jury to consider his convie-tions for the lesser offenses as well as the greater crimes that the State sought to prove during the penalty phase of the trial. Finally, he contends that he was prejudiced by the trial court's decision to allow the State to present evidence of his convictions and evidence of the aggravated burglaries because that decision led the jury to impermissibly count the same aggravating circumstance twice. We reject each of these claims.
1286 First, we conclude that Mr. Maestas has not satisfied his burden of showing that the evidence was unduly prejudicial.
T 287 Second, although our holding in Loaf forty I refers to the State presenting "evidence of violent crimes which have not yet resulted in convictions,"
1288 This same rationale applies to all evidence of a defendant's prior criminal acts. Indeed, evidence of a defendant's past criminal conduct, even conduct exceeding that to which he pled guilty, provides the jury with important information about the defendant's violent propensities And it presents the jury with an accurate picture of the defendant's background, history, and character. Because it is consistent with our rationale in Lofferty I, we hold that evidence of crimes beyond those for which the defendant has been convicted may be admitted, so long as the jury is instructed on the elements of the crime and finds that each element has been proven beyond a reasonable doubt.
1289 Consistent with the rule announced in Lofferty I, the jury in this case was instructed on the elements of aggravated burglary and told that it could consider the evidence as an aggravating cireumstance only if it found beyond a reasonable doubt that Mr. Maestas had committed the crime against Ms,. McClean or Ms. Nelson. Because the evidence was relevant to Mr. Maes-tas's history, character, and background, and because the jury was properly informed and instructed in accordance with our rule in Lafferty I, the trial court did not err in allowing the State to present evidence that Mr. Maestas committed the two aggravated burglaries, even though he had pled guilty to lesser offenses. Accordingly, we decline to grant Mr. Maestas a new penalty phase on this basis.
1290 Third, we reject Mr. Maes-tas's assertion that this evidence violated the constitutional protection against double jeopardy. It is well settled that the Double Jeopardy Clause of the U.S. Constitution protects a defendant from a second prosecution for the same offense after conviction and against multiple punishments for the same offense.
1291 In this case, the protections against double jeopardy were not violated when the State presented the evidence regarding Mr. Maestas's convictions and the aggravated burglaries of Ms. MceClean's home and Ms. Nelson's home. This evidence was presented so the jury could consider it when determining the appropriate sentence for the capital homicide. Because the jury was determining the appropriate penalty for a subsequent crime, the introduction of evidence concerning Mr. Maestas's past criminal behavior did not constitute a second prosecution for that past behavior and did not result in multiple punishments for the same offense. Thus, the protections against double jeopardy were not violated, and we decline to grant Mr. Maes-tas a new penalty phase on this basis.
$292 Finally, we reject the argument that the jury impermissibly double counted the same aggravating cireumstance. As an initial matter, we note that Mr. Maes-tas has not pointed to any evidence that the jury double counted the same aggravating cireamstance when determining whether the totality of the aggravating cireumstances outweighed the totality of the mitigating circumstances. Indeed, it was the underlying conduct that created the aggravating cireum-stances, and there was no indication that the jury mistakenly believed that the convictions and the aggravated burglaries arose from different underlying conduct In other words, there is no indication that the jury thought that the convictions and aggravated burglaries arose out of four separate incidents instead of the two occasions that created the aggravating cireumstances. Further, Mr. Maestas has not shown that it would have been erroneous for the jury to have considered, as separate aggravating cireum-stances, the aggravated burglaries and his convictions for the lesser offenses arising from those incidents.
1298 But even were we to find that the jury did double count the aggravated burglaries and the convictions, and that this double counting was erroneous, any such error would have been harmless. Indeed, even if we remove the evidence of the aggravated
1294 For the foregoing reasons, we conclude that the trial court did not commit prejudicial error in allowing the State to introduce evidence that Mr. Maestas's prior convictions involved greater crimes than those to which he pled guilty.
b. The Trial Court Did Not Commit Plain Error in Admitting the Parole Revocation Documents Into Evidence
1295 Mr. Maestas next argues that the trial court erred in admitting the parole revocation documents concerning the aggravated burglary of Ms. McClean. Specifically, he contends that the parole revocation doeu-ments "contained inflammatory, unduly prejudicial, unreliable, and irrelevant information" that violated the rules of evidence and the constitution. Because Mr. Maestas did not raise this argument in the trial court, we review his claim for plain error, meaning that the error must be both obvious and harmful.
1296 As an initial matter, we note that different rules governing the admissibility of evidence apply to the penalty phase of a trial. "[Elvidence may be admissible during the penalty phase, even if excluded by the rules of evidence during the guilt phase."
1297 Concerning constitutional principles, we note that, under the principles of due process, the evidence presented in the penalty phase must be relevant and reliable.
1298 In this case, because a court may admit "[alny evidence" in the penalty phase that it "considers to have probative force,"
18300 For the foregoing reasons, we conclude that any error that the trial court may have committed in admitting the parole revocation documents was harmless. According ly, we decline to grant Mr. Maestas a new penalty phase on this basis.
c. There Was Sufficient Evidence for the Jury to Conclude that Mr. Maestas Committed the Two Other Aggravated Burglaries
1301 Mr. Maestas's final claim is that there was insufficient evidence for the jury to conclude beyond a reasonable doubt that he had committed the aggravated burglary of Ms. McClean's home and the aggravated burglary of Ms. Nelson's home. Although he does not dispute that Ms. McClean and Ms. Nelson were attacked during the course of the burglaries, he contends that the evidence was insufficient to identify him as the perpetrator of those crimes.
€302 As an initial matter, we note that, "[in considering an insufficiency of the evidence claim, we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury."
€3038 Regarding the aggravated burglary of Ms. McClean's home, the jury heard the investigative police officer's testimony that Mr. Maestas matched the description of the assailant; that Ms. McClean had blood and skin under her fingernails, and Mr. Maestas had seratches on his face and arms; that Mr. Maestas gave a false alibi for the night of the incident; and that he was in possession of the television and other personal property that was stolen from Ms. MceClean's home. In addition, the jury was presented with evidence that Mr. Maestas had pled guilty in this matter to the offense of theft by receiving. And regarding the aggravated burglary of Ms. Nelson's home, the jury heard Ms. Nelson testify that Mr. Maestas was the perpetrator. Further, the jury was presented with evidence that Mr. Maestas had pled guilty in this matter to the offense of theft.
T304 We conclude that, when viewed in the light most favorable to the jury's verdict, the foregoing evidence was sufficient to identify Mr. Maestas as the perpetrator in both aggravated burglaries. Nothing about this evidence was inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that Mr. Maestas committed the crimes. Accordingly, we reject Mr. Maestas's challenge to the jury's verdict, and we decline to grant him a new penalty phase on this basis.
1305 For the foregoing reasons, we conclude that the trial court did not commit prejudicial error in allowing the State to present evidence that Mr. Maestas committed greater crimes than those to which he pled guilty.
306 Mr. Maestas also claims that certain testimony in the penalty phase of his trial constituted unconstitutional victim impact evidence. Specifically, he asserts that the court committed reversible error by admitting prejudicial victim impact evidence from two witnesses who testified about Mr. Maes-tas's prior erimes,
1307 We note that, during the penalty phase of a capital case, section 76-8-207(2)(a)(iii) of the Utah Code (Victim Impact Provision) expressly allows the introduction of evidence pertaining to "the victim and the impact of the crime on the victim's family and community without comparison to other persons or victims." Nonprejudicial evidence regarding the victim and the impact of the crime on the victim's family has been upheld under the Eighth Amendment of the U.S. Constitution.
1308 Ultimately, however, we need not decide what limitations, if any, the state constitution places on the use of victim impact evidence. "Before treating the constitutional issue on its merits, we determine whether the victim impact evidence in this case was prejudicial. If this potential error is not prejudicial, we need not reach the constitutional questions."
T309 With that in mind, we now turn to the question of whether Mr. Maestas was prejudiced by (a) the alleged victim impact evidence concerning Mr. Maestas's past crimes or (b) the victim impact evidence concerning Ms. Bott's death.
a. The Alleged Victim Impact Evidence Regarding Mr. Maestas's Prior Crimes Was Not Prejudicial
1310 We first address the alleged victim impact evidence concerning Mr. Maes-tas's prior crimes. While introducing evidence that Mr. Maestas committed the aggravated burglary of Ms. McClean's home in the 1970s, the State presented the testimony of Ms. McClean's granddaughter.
1 311 Next, when the State sought to prove that Mr. Maestas committed the aggravated burglary of Ms. Nelson's home in the 1980s, Ms. Nelson testified about the incident. After describing the burglary and subsequent assault, she stated that the hospital staff treated her poorly when she sought treatment for her injuries. On cross examination, defense counsel asked Ms. Nelson whether she had given "some interviews to the press" concerning her assault, and Ms. Nelson responded that she had. But defense counsel interrupted her when she began to state her reason for the interviews. On redirect, Ms. Nelson explained that she gave the interviews after seeing the press coverage about
1312 In analyzing Mr. Maestas's claims, we note that the Victim Impact Provision does not expressly provide for the introduction of victim impact evidence concerning a defendant's prior erimes.
1313 Indeed, the comments Mr. Maestas challenges were moderate in tone and did not express an opinion about his character or the appropriate sentence. In addition, any allegedly improper statements were not pervasive. For example, Ms. McClean's granddaughter made one comment about seeing her grandmother's injuries. This comment came after a police officer had provided the jury with extensive details about Ms. McCle-an's injuries, including her severe bruising, swollen face, and the fact that her right eye had to be removed as a result of the attack. Similarly, Ms. Nelson's statements about her own hospital visit and being "upset" by Mr. Maestas's release constituted only two sentences in thirteen pages of her testimony describing the attack and the injuries that she sustained.
1314 Given the nature of the contested evidence, and considering the other evidence that had been presented, there is not a reasonable probability that, but for the admission of these statements, Mr. Maestas would have received a more favorable sentence. We therefore conclude that these comments were not prejfudicial.
b. The Victim Impact Evidence Regarding Ms. Bott's Death Was Not Prejudicial
1315 We next address Mr. Maes-tas's claim that the State presented prejudicial victim impact evidence about Ms. Bott's death. The State introduced victim impact testimony from Ms. Bott's granddaughter in accordance with the Victim Impact Provision. As part of this testimony, Ms. Bott's granddaughter stated that, after the homicide, she cleaned Ms. Bott's house and personally "cleaned up the blood on the floor." In addition, the granddaughter read the following exeerpt from her personal blog:
What shame I felt when I finally found myself knee deep in sorting through [my grandmother's] old things and serubbing her bloodstained floor with the tears pouring from my eyes. A seene that echoed that of my mother's not long before. Just before I heard the news of my grandmother's brutal rape and murder I had talked with her again on the phone.
I cried to her about how much I missed my mother and proclaimed my guilt in hopes of changing the past. Her last message to me was this: You just need to live your life happy-go-lucky. Just live. Just be happy.*979 The next day it occurred to me that I had very little knowledge of my mother or her mother's youth.
There were no stories I could recall and few pictures I could find [of my mother's or grandmother's youth]. So I wrote [my grandmother] my final letter requesting anything her memory could divulge. I included the happiest go lucky picture I had of myself. I found that picture by her bedside splattered with red. Never had time to reply.... Gone is my last link to the past, or knowledge, and of motherly love.
[ 316 We conclude that this testimony was not prejudicial because it was moderate in tone, provided only a description of the loss that the granddaughter felt as a result of Ms. Bott's death, and did not convey an opinion of Mr. Maestas's character or the appropriate sentence. Although the granddaughter's statements provided vivid images of her grief, such descriptive accountings are not necessarily prejudicial
817 Because the evidence Mr. Maestas challenges was not prejudicial, "we decline to reverse the result of the penalty phase and do not need to address the constitutional questions"
4. The Other Evidence of Aggravating Circumstances Was Not Improper
818 Mr. Maestas raises four other arguments concerning the evidence introduced in the penalty phase of his trial. Specifically, he claims that he is entitled to a new penalty phase because (a) the trial court impermissi-bly admitted a certified copy of his conviction for burglary and witness testimony about the incident, (b) testimony about his past erimi-nal behavior warranted a mistrial, (c) testimony that he did not show remorse for the aggravated murder violated his right against self-incrimination, and (d) testimony about his behavior in prison was improper. We disagree.
a. The Trial Court Did Not Err in Admitting Both a Certified Copy of Mr. Maestas's Prior Conviction for Burglary and Witness Testimony About the Incident
1319 Mr. Maestas asserts that he is entitled to a new penalty phase because the trial court erred in admitting a certified copy of his prior conviction for burglary as well as witness testimony concerning the circumstances of that offense. Specifically, he challenges the State's introduction of a certified copy of his 1990 conviction for the burglary of Phyllis Demetropolos's home. The State also called Ms. Demetropolos to testify about the cireumstances surrounding that burglary. Although Mr. Maestas did not object to this evidence in the trial court, on appeal, he alleges that the court committed plain error in admitting his prior conviction as well as the testimony concerning the offense. Notably, Mr. Maestas does not assert that Ms. Demetropolos's testimony contained ingceu-rate information or constituted victim impact evidence. Instead, he contends only that, by admitting the conviction and the testimony, it created a risk that the jury would double count this aggravating cireumstance. We are unpersuaded by Mr. Maestas's argument for two reasons.
1320 First, the trial court did not err in admitting the certified conviction and the testimony about the circumstances of the crime. Indeed, as discussed above, we have recognized that accurate information about a defendant's past criminal conduct provides the sentencing body with important informa
321 Second, there is no evidence that the jury impermissibly double counted this aggravating cireumstance. But even if the jury did so, any such error would have been harmless.
b. The Trial Court Did Not Abuse Its Discretion in Denying Mr. Maestas's Motion for a Mistrial
1322 Next, Mr. Maestas asserts that the trial court abused its discretion in denying his motion for a mistrial after the State elicited improper testimony from an agent with Adult Probation and Parole (AP&P). During the penalty phase, the AP&P agent testified about Mr. Maestas's criminal history and parole revocations. As part of that testimony, he read a presentence investigation report completed by AP&P after Mr. Maestas's 1990 conviction for the burglary of Ms. Demetropolos's home. The report summarized Mr. Maestas's criminal and parole history and stated as follows:
It is obvious to this agent ... [that] Mr. Maestas has no intention of ever complying with the conditions ... the Board of Pardons imposed and, in fact, shows his only plans in life are to be a career eriminal. This behavior now resulted in Mr. Maestas being charged and convicted for the offenses of a career criminal.
323 At the close of the agent's testimony, defense counsel expressed concern about the AP&P agent's statement that Mr. Maestas was "convicted for the offenses of a career criminal." The prosecution agreed to remedy any potential error with this statement and to clarify that Mr. Maestas's convictions were for burglaries, not for being a "career criminal." At that point, the prosecution asked the AP&P agent to clarify for the jury that Mr. Maestas's convictions were for burglaries. The AP&P agent provided this clarification.
[ $24 The next day, however, Mr. Maestas moved for a mistrial based on the AP&P agent's testimony.
1325 As an initial matter, we note that trial courts have discretion in granting or denying a motion for a mistrial.
1326 In this case, Mr. Maestas has failed to show that the trial court abused its discretion in refusing to grant a mistrial. Indeed, the AP&P agent's brief reference to Mr. Maestas's "career criminal" conviction was not of the type that "so likely influenced the jury that the defendant cannot be said to have had a fair trial."
c. The Testimony Concerning Mr. Maces-tas's Remorse and Responsibility Did Not Violate His Right Against Self-Incrimination and Was Not Harmful
1327 Mr. Maestas also argues that the trial court erred in admitting witness testimony that he had not shown remorse or taken responsibility for the murder of Ms. Bott. In the penalty phase, the State introduced the testimony of Mr. Maestas's ex-wife. On direct examination, the following exchange took place between the prosecution and Mr. Maestas's ex-wife:
Question: Has [Mr. Maestas] ever admitted responsibility for this crime?
Answer: No. He told me he would never do anything like that.
[[Image here]]
Question: So it's fair to say he's never shown any remorse?
Answer: No, I think, you know, when I asked him, you know, he wasn't going to admit to me but he looked like he was remorseful.
1 328 Although Mr. Maestas did not object to the prosecution's questioning in the trial court, on appeal, he argues that the court committed plain error in allowing his ex-wife's testimony. Specifically, he claims that his ex-wife's comment on his lack of remorse or failure to take responsibility violated his constitutional right against self-incrimination and that this violation was prejudicial. We reject this argument.
1329 As an initial matter, we note that there is nothing per se unconstitutional about considering a defendant's lack of remorse as an aggravating circumstance.
§830 Finally, Mr. Maestas challenges witness testimony regarding his behavior while in prison. During the penalty phase, the State introduced the testimony of a caseworker with the Department of Corrections. The caseworker stated that he had supervised Mr. Maestas during "the last four months of [Mr. Maestas's] last incarceration" and was familiar with his prison file The prison file contained chronological notes, reports, and progress updates compiled over the thirty years Mr. Maestas has been in and out of prison. When asked to give an opinion about Mr. Maestas's behavior in prison, the caseworker stated as follows:
Mr. Maestas is ... very manipulative and uses violence in an effort to get the things that he wants out of life.... There are some things that he has done that are very positive. However, those all seem to cycle through. If he doesn't get things through positive behavior, he does things that are manipulative and violent to get the things he wants.... I am sure [he is a danger to individuals at the prison]. That danger may be diminishing because of his age, but early on it wasn't the case.
4 831 On cross-examination, defense counsel questioned the caseworker about Mr. Maestas's prison file and emphasized reports in that file indicating that Mr. Maestas had not received disciplinary referrals from 1976-T9 or 1998-94. In closing arguments, defense counsel highlighted the caseworker's assessment that Mr. Maestas's behavior continued to improve as he got older. Defense counsel then encouraged the jury to consider this evidence as a mitigating circumstance.
1 332 Although Mr. Maestas did not object to this testimony at trial, and in fact referred to it in his closing argument, on appeal, he contends that the trial court committed plain error in admitting the caseworker's statements. Specifically, he asserts that the testimony improperly relied upon Mr. Maestas's prison file and that the file was inadmissible hearsay under the rules of evidence and the Confrontation Clause of the U.S. Constitution. Because Mr. Maestas did not raise this argument in the trial court, we review his claim for plain error.
833 As discussed above, we again note that, under Utah's death penalty scheme, evidence "may be admissible during, the penalty phase, even if excluded by the rules of evidence during the guilt phase."
13834 In this case, there is considerable evidence supporting the conclusion that the caseworker's testimony was not erroneously admitted. But, regardless, any potential error was harmless. The caseworker's statements about Mr. Maestas's behavior in prison is probative of his character and future dangerousness. As such, it may be used as evidence. Indeed, both the prosecution and defense counsel used the caseworker's testimony to highlight different portions of Mr. Maestas's prison record. In fact, defense counsel highlighted Mr. Maestas's diminishing violent behavior and lack of disciplinary actions for periods of his incarceration during closing arguments and defense counsel argued that the jury could consider this evi-denee as a mitigating cireumstance. Because defense counsel used the caseworker's testimony to introduce favorable evidence, and relied on this testimony, and because the testimony was probative of Mr. Maestas's behavior, character, and conduct, we conclude that the overall testimony was not harmful. Accordingly, we decline to grant Mr. Maestas a new penalty phase on this basis.
v. OTHER CONSTITUTIONAL ISSUES
1336 Mr. Maestas raises five other constitutional challenges. He contends that; (A) the trial court violated the Due Process Clause and the Eighth Amendment of the U.S. Constitution by denying his motion to argue last in the penalty phase hearing; (B) the process of death qualification violates the Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution and article I, see-tions 7, 10, and 12 of the Utah Constitution because it results in juries that are more prone to convict and impose death sentences; (C) Utah's current death penalty scheme violates the Eighth and Fourteenth Amendments of the U.S. Constitution, as well as "state due process" and article I, section 9 of the Utah Constitution because recent amendments have resulted in a statute that imper-missibly fails to narrow the class of death-eligible offenses; (D) under a proportionality review, his death sentence is disproportionate in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution; and (E) research purporting to find that capital jurors do not abide by constitutional principles in decision making supports an inference that both Utah's death penalty scheme and his death sentence violate the Eighth Amendment of the U.S. Constitution and article I, section 9 of the Utah Constitution.
337 All five constitutional challenges are questions of law that we review for correctness.
A. The Trial Court Did Not Violate the Due Process Clouse or the Eighth Amendment of the U.S. Constitution by Denying Mr. Maestas's Motion to Argue Last
1388 During the penalty phase hearing, Mr. Maestas filed a motion to argue last, which the trial court denied. He argues that, by denying his motion to argue last in the penalty phase, the court allowed the jury to sentence him based on information that he did not have the opportunity to deny or explain. He contends that this resulted in the jury imposing an unreliable sentence in violation of the Due Process Clause and the Eighth Amendment. We reject his argument.
1339 First, we note that the order of procedure and argument for criminal trials is outlined in rule 17(g) of the Utah Rules of Criminal Procedure. Specifically, rule 17(g)(7) provides that when the parties argue before the jury, "the prosecution shall open the argument, the defense shall follow and the prosecution may close by responding to the defense argument." And we have previously held that rule 17(g)(7) "applies to the penalty phase of [a] defendant's trial."
11 340 Second, the U.S. Supreme Court has noted that the principles of due process are violated when a death sentence is imposed "on the basis of information which [the defendant] had no opportunity to deny or explain."
{341 Mr. Maestas does not claim that the prosecution exceeded the seope of an appropriate rebuttal. Indeed, he fails to point to any information in the prosecution's closing argument that he was prevented from explaining or denying over the course of the proceedings. Thus, because rule 17 appropriately limits the seope of the prosecution's closing argument "to only those matters argued by the defense,"
1342 Additionally, while Mr. Maes-tas argues that the denial of the motion resulted in an unreliable sentence in violation of the Eighth Amendment, he offers no case law to support this claim.
1 343 For the foregoing reasons, we reject Mr. Maestas's argument that denying his motion to argue last resulted in an unreliable sentence in violation of the Due Process Clause and the Eighth Amendment. Aceord-ingly, we hold that the trial court did not err in denying Mr. Maestas's motion.
B. The Process of Death Qualification Does Not Violate the U.S. Constitution or the Utah Constitution
$344 Mr. Maestas argues that death-qualified juries are more prone to con-viet and impose death sentences, which he contends violates defendants' right to trial by an impartial jury. Accordingly, he argues that the process of death qualification violates the Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution and article I, sections 7, 10, and 12 of the Utah Constitution. We reject his arguments.
1 345 As an initial matter, "death qualification" concerns the removal of jurors whose "views on capital punishment would prevent or substantially impair the performance of the juror's duties as a juror in accordance
1346 In State v. Alvares and State v. Young, we considered the argument that death qualification unconstitutionally "creates a conviction-prone jury."
T 347 In this appeal, Mr. Maestas raises no new argument to cause us to reach a different result than the U.S. Supreme Court reached in Lockhart v. McCree or that we reached in Alvarez or Young.
C. Utah's Sentencing Scheme Does Not Insufficiently Narrow the Class of Death-Eligible Offenses
€348 Mr. Maestas argues that Utah's death penalty scheme violates the Eighth and Fourteenth Amendments of the U.S. Constitution because recent amendments to Utah's death penalty scheme have expanded the offenses eligible for the death penalty and broadened the permissible aggravating factors. As a result, he claims that the death penalty scheme fails to sufficiently narrow the class of death-eligible offenses, which allows the arbitrary and capricious imposition of death sentences. We reject his argument.
349 The U.S. Constitution requires that death penalty schemes "genuinely narrow the class of persons eligible for the death penalty" and "justify the imposition of a more severe sentence.
1] 351 As a result, we are not persuaded to depart from our precedent on this issue. We therefore reject Mr. Maestas's claim that Utah's death penalty scheme is unconstitutional for failing to sufficiently narrow the class of death-eligible offenses.
D. Mr. Maestas's Death Sentence Was Not Disproportionate
1352 Mr. Maestas argues that, under a proportionality review, his death sentence violated the Eighth Amendment and article I, section 9, of the Utah Constitution. Specifically, he asserts that his sentence was disproportionate because of his low level of intellectual functioning, the lack of mitigating evidence presented, and because "the nature of [his crime] suggests homicide was not the primary motivation." We reject his arguments.
1358 Neither the U.S. Constitution nor the Utah Constitution requires capital sentences to be reviewed for proportionali-ty
1855 Second, Mr. Maestas's sentence was not disproportionate to his level of culpability. In reviewing the proportionality of a death sentence, we do not attempt to determine whether the defendant was "extremely culpable or just somewhat culpable."
1356 Third, Mr. Maestas's sentence was not disproportionate in comparison to the general sentencing pattern in our state. Mr. Maestas argues that "the homicide was committed as part of a beating; beatings of this sort do not always result in death and the nature of this homicide suggests homicide was not the primary motivation." But Mr. Maestas was convicted of aggravated murder for punching, stomping, strangling, and stabbing an elderly woman to death, which means that the jury determined that he "intentionally or knowingly cause[d] the death" of the victim under aggravating cirenmstances.
E. National Research Purporting to Show that Capital Jurors Violate Constitutional Principles Does Not Support an Inference that Hither Utah's Death Penalty Scheme Is Unconstitutional or that Mr. Maestas's Death Sentence Was Unconstitutional
1357 Finally, Mr. Maestas argues that Utah's death penalty scheme violates the Fifth, Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution based on research purporting to show that capital jurors do not always make decisions consistent with constitutional principles. Based on this research, Mr. Maestas contends that we should conclude that Utah's death penalty scheme is unconstitutional or infer that his jury violated constitutional principles in imposing the death sentence.
1358 In McCleskey v. Kemp, the U.S. Supreme Court considered whether a statis
1 359 The Court noted that, "[blecause discretion is essential to the criminal justice process, [it] would demand exceptionally clear proof before [it] would infer that the discretion has been abused."
360 These same concerns apply to Mr. Maestas's argument that the research he proffers compels a conclusion that Utah's death penalty scheme, and his conviction under that scheme, violate constitutional principles. We agree that "discretion is essential to the criminal justice process," and, accordingly, like the U.S. Supreme Court, we require "exceptionally clear proof" before finding that such "discretion has been abused."
In sum, we reject all five of Mr. Maestas's constitutional challenges and affirm his death sentence.
1362 Lastly, Mr. Maestas argues that he should be granted both a new guilt phase and a new penalty phase because of the cumulative effect of errors made over the course of the proceedings. He argues that the "errors worked together ... to create an unfair and unreliable outcome." We disagree.
1363 "Under the cumulative error doctrine, we will reverse [a jury verdict or sentence] only if the cumulative effect of the several errors undermines our confidence ... that a fair trial was had."
1364 In this case, for each of Mr. Maes-tas's claims of error, we have found that either no substantial error was committed or that any error was harmless beyond a reasonable doubt. Because Mr. Maestas was not harmed by any substantial errors over the course of the proceedings, our confidence in the fairness of his guilty verdict and his sentence of death is not undermined. Thus, the cumulative error doctrine does not apply, and we do not grant Mr. Maestas a new guilt or penalty phase on this basis.
CONCLUSION
(865 We reject each of Mr. Macstas's challenges to his convictions for aggravated robbery and aggravated murder and to his sentence under Utah's death penalty scheme. Accordingly, we affirm his conviction and death sentence.
. Throughout this opinion, we cite to the current version of the Utah Code because no substantive changes have been made to the relevant statutory provisions that would affect the resolution of the issues presented on appeal. See Stone Flood & Fire Restoration, Inc. v. Safeco Inc. Co. of Am., 2011 UT 83, ¶ 19, 268 P.3d 170.
. State v. Jeffs, 2010 UT 49, ¶ 3, 243 P.3d 1250 (internal quotation marks omitted).
. The Y-STR DNA analysis focuses specifically on the Y-chromosome, found in males and inherited through the male's paternal lineage. Because all males in the same paternal lineage have the same forensic markers, called alleles, on their Y chromosomes, the Y-STR DNA analysis indicates whether an individual and all of his paternal relatives can be excluded as possible contributors of the DNA sample. See, e.g., Powers v. State, 343 S.W.3d 36, 45 n. 13 (Tenn.2011) ("Y-STR testing permits DNA analysis on the Y-chromosome. Since the Y-chromosome is inherited paternally, all men in the same paternal lineage should have the same Y-chromosome STRs, or 'Y¥-STRs.'" (alteration omitted) (citations omitted) (internal quotation marks omitted)); State v. Bander, 150 Wash.App. 690, 208 P.3d 1242, 1246 (2009) ("Based on PCR-YSTR typing, a forensic analyst may determine whether a known source and all of his paternal relatives can be excluded as possible contributors to an unknown DNA sample.").
. 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
. Although we recognize that the phrases "mentally retarded" and "mental retardation" are now disfavored, because this language is used in the Atkins opinion and the Utah Code, we use these phrases in this opinion.
. Over the course of the proceedings, the court repeatedly admonished the jury, but failed to admonish the jury before breaks in the proceedings on nine occasions. See infra 151 & n. 33.
. State v. Honie, 2002 UT 4, ¶ 2, 57 P.3d 977 (internal quotation marks omitted).
. State v. Butterfield, 2001 UT 59, ¶ 28, 27 P.3d 1133 (alteration in original) (internal quotation marks omitted).
. State v. Levin, 2006 UT 50, ¶ 20, 144 P.3d 1096.
. 14.121.
. State v. Menzies (Menzies I), 845 P.2d 220, 224-25 (Utah 1992) (internal quotation marks omitted).
. State v. Casey, 2003 UT 55, ¶ 40, 82 P.3d 1106 (internal quotation marks omitted).
. Menzies I, 845 P.2d at 225.
. State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276.
. State v. Munguia, 2011 UT 5, ¶ 12, 253 P.3d 1082 (internal quotation marks omitted).
. State v. Lafferty (Lafferty II), 2001 UT 19, ¶ 58, 20 P.3d 342.
. State v. Wach, 2001 UT 35, ¶ 25, 24 P.3d 948.
. Id. 124 (internal quotation marks omitted).
. State v. Menzies (Menzies II), 889 P.2d 393, 398 (Utah 1994); accord Wach, 2001 UT 35, ¶ 24, 24 P.3d 948.
. Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) (emphasis added); accord State v. Kell, 2002 UT 106, ¶ 19, 61 P.3d 1019.
. Urax R.Crm. P. 18(e)(10) (allowing a for-cause challenge if "the juror's views on capital punishment would prevent or substantially impair the performance of the juror's duties").
. Id. 18(e)(14).
. State v. Bishop, 753 P.2d 439, 451 (Utah 1988) (plurality opinion), overruled on other grounds by Menzies II, 889 P.2d 393.
. Wach, 2001 UT 35, ¶ 27, 24 P.3d 948 (internal quotation marks omitted).
. See Uram Cope § 76-3-207(4)(d) (Mitigating circumstances include ... at the time of the homicide, the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirement of law was impaired as a result of a mental condition, intoxication, or influence of drugs. ...").
. Wach, 2001 UT 35, ¶ 27, 24 P.3d 948 (internal quotation marks omitted).
. Kell, 2002 UT 106, ¶ 19, 61 P.3d 1019 (internal quotation marks omitted).
. See Wach, 2001 UT 35, 133, 24 P.3d 948 (explaining that "[it is not enough if a juror believes that ... she can be impartial and fair" because such an expression of belief "loses much of its meaning in light of other testimony and facts which suggest a bias" (internal quotation marks omitted)).
. See id., 124; Menzies II, 889 P.2d at 400.
. Wach, 2001 UT 35, 136, 24 P.3d 948 (internal quotation marks omitted).
. 1999 UT 59, 155, 992 P.2d 951 (plurality opinion).
. There was no majority opinion in Saunders, so the "cumulative basis" language is not controlling. Additionally, in subsequent cases, we have required defendants to show prejudice by demonstrating that a biased juror was actually empaneled. See, e.g., Wach, 2001 UT 35, ¶¶ 36, 41, 24 P.3d 948. Further, the Saunders opinion based its finding of cumulative error on the court's "undue limitations on voir dire questions and the trial court's refusal to strike [a juror for cause}." 1999 UT 59, 155, 992 P.2d 951 (emphasis added). Because there were no such limitations on the voir dire questions in the case currently before us, Saunders has limited applicability.
. See Menzies I, 845 P.2d 220, 224-25 (Utah 1992).
. We note that rule 17(k) of the Utah Rules of Criminal Procedure states that [alt each recess of the court ... [the jurors] shall be admonished by the court that they may not "converse among themselves or ... converse with ... any other person on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them." The State argues that the failure to admonish cannot be an obvious error because we have not yet considered "whether the rule is mandatory or merely directory," and we have not "addressed the meaning of 'recess' under this rule." While "shall" may be directory in some instances, it is not directory here. Indeed, we have previously held that "on adjournment the jury must be admonished not to converse among themselves nor with anyone else on any subject connected with the trial." State v. Garcia, 11 Utah 2d 67, 355 P.2d 57, 59 (1960) (emphasis added). Accordingly, the rule clearly imposes a mandatory requirement on the court. But we recognize that we have not yet considered whether a break of very short length constitutes a recess, such that the failure to admonish the jury constitutes an obvious error under this rule. Because we conclude that Mr. Maestas did not suffer harm from the court's occasional failures to admonish the jury, we need not address that issue at this time.
. United States v. Nelson, 102 F.3d 1344, 1348 (4th Cir.1996).
. See, eg., United States v. Hart, 729 F.2d 662, 668 (10th Cir.1984).
. See infra Part 1.C.2.a.
. Mr. Maestas also claims that his rights under article I, section 12 of the Utah Constitution were violated when he was absent from certain court
. Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).
. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (emphasis added); see also United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam) ('[TJhe presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.") (alteration in original) (internal quotation marks omitted).
. Gagnon, 470 U.S. at 526, 105 S.Ct. 1482 (citation omitted) (internal quotation marks omitted).
. Stincer, 482 U.S. at 745, 107 S.Ct. 2658.
. Id. (internal quotation marks omitted).
. U.S. Const. amend. VI. ("In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.").
. Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct 1237, 152 L.Ed.2d 291 (2002) (internal quotation marks omitted); see also id. ("[Dle-fects in assistance that have no probable effect upon the trial's outcome do not establish a constitutional violation.").
. Id.
. See id. (emphases added); see also United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ("The [U.S. Supreme] Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding."). Unlike most constitutional errors, which are reviewed for harm, structural errors are subject to automatic reversal without a showing of harm because they are not "simply ... error[s] in the trial process itself," but instead are errors that affect the very "framework within which the trial proceeds." Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The Court has "found structural errors only in a very limited class of cases." Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).
. Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).
. United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
. See Menzies I, 845 P.2d at 224-25.
. Specifically, the judge asked whether they were citizens and residents of Salt Lake County; whether they were over the age of eighteen; whether they could read, write, and understand English; and whether they had any prior felonies.
. Because the judge asked the prospective jurors questions regarding their qualifications for jury service, Mr. Maestas argues that the meeting was not confined to ministerial matters, and that it was instead "the first day of voir dire." We disagree. These questions were merely part of the initial screening of the jurors' competency to serve. And all substantive questioning of the jurors took place at a following meeting with the parties present. Accordingly, this initial meeting was not the first day of voir dire, and it would not have been obvious to the court that Mr. Maestas and his counsel should have been present at this meeting.
. Bell, 535 U.S. at 695-96, 122 S.Ct. 1843.
. Stincer, 482 U.S. at 745, 107 S.Ct. 2658; see also Gagnon, 470 U.S. at 526, 105 S.Ct. 1482.
. Stincer, 482 U.S. at 745, 107 S.Ct. 2658.
. See State v. Pike, 712 P.2d 277, 280 (Utah 1985) ("[A) rebuttable presumption of prejudice arises from any unauthorized contact during a trial between witnesses, attorneys or court personnel and jurors which goes beyond a mere incidental, unintended, and brief contact."); see also State v. Erickson, 749 P.2d 620, 621 (Utah 1987) (explaining that the presumption arises when the contact goes beyond "a brief, incidental contact where only remarks of civility were exchanged"). In such cases, "the burden is on the prosecution to prove that the unauthorized contact did not influence the juror." Pike, 712 P.2d at 280.
. Gagnon, 470 U.S. at 526, 105 S.Ct. 1482 (internal quotation marks omitted).
. Rushen v. Spain, 464 U.S. 114, 118, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (internal quotation marks omitted).
. Id.
. See, e.g., United States v. U.S. Gypsum Co., 438 U.S. 422, 460, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) (finding prejudice when the judge met privately with the foreman of the jury and gave what amounted to a supplemental jury instruction}.
. Rushen, 464 U.S. at 117, 119, 104 S.Ct. 453 (explaining that the Court "emphatically disagree[d]" with the Ninth Circuit's conclusion that "unrecorded ex parte communication between trial judge and juror can never be harmless error").
. See, eg., U.S. Gypsum, 438 U.S. at 460-62, 98 S.Ct. 2864 ("Any ex parte meeting or communication between the judge and the foreman of a deliberating jury is pregnant with possibilities for error. This record amply demonstrates that even an experienced trial judge cannot be certain to avoid all the pitfalls inherent in such an enterprise."). In U.S. Gypsum, the judge met with the foreman of a deadlocked jury and the record suggests that the foreman carried away from the meeting an impression that "the judge wanted a verdict 'one way or the other.' " Id.
. See id.
. Menzies I, 845 P.2d at 224-25.
. See id.
. United States v. Brown, 571 F.2d 980, 987 (6th Cir.1978); accord Stincer, 482 U.S. at 745, 107 S.Ct. 2658 (holding that "a defendant is guaranteed the right to be present'' only at "any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure").
. See State v. Kozik, 688 P.2d 459, 460-61 (Utah 1984) (per curiam).
. Id. at 460.
. Id.
. Id.
. See id. at 461.
. Although he does raise allegations of juror misconduct concerning juror 8, those allegations involve juror 8's knowledge of the meaning of "life without parole" based on her studies in a criminology class. See infra Part LE.
. Stincer, 482 U.S. at 745, 107 S.Ct. 2658.
. Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. 2039; see also Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) ("[DJenial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice ...." (emphasis added)).
. Bell, 535 U.S. at 695-96, 122 S.Ct. 1843.
. See, eg., Caver v. Straub, 349 F.3d 340, 349 n. 6 (6th Cir.2003) (finding a critical stage when the jury was reinstructed "on certain elements of the offense after they had deliberated"); French v. Jones, 332 F.3d 430, 436, 438 (6th Cir.2003) (finding a critical stage when the judge gave a supplemental jury instruction that was not the standard deadlock instruction).
. Valentine v. United States, 488 F.3d 325, 335 (6th Cir.2007).
. Id. at 334; United States v. McMurry, 818 F.2d 24, 26-27 (10th Cir.1987).
. Valentine, 488 F.3d at 334. The judge's note read as follows:
Dear jury, there is no time limit nor is there any hurry in your deliberations. However, I must catch a plane today at 1:30. Therefore, if you do not have a verdict by 12:00, I will discharge you until Tuesday morning at 8:30, February the 15th, 2000.
Id.
. Id. at 335-36. Valentine, 488 F.3d at 335; McMurry, 818 F.2d at 26-27.
. 818 F.2d 24, 26 (10th Cir.1987).
. Id.
. Id.
. See Mickens, 535 U.S. at 166, 122 S.Ct. 1237 (recognizing that courts will presume prejudice only "where assistance of counsel has been denied entirely or during a critical stage of the proceeding").
. See State v. Dean, 2004 UT 63, ¶ 22, 95 P.3d 276.
. Valentine, 488 F.3d at 336 (internal quotation marks omitted).
. United States v. Green, 523 F.2d 229, 236 (2d Cir.1975).
. See, e.g., Mickens, 535 U.S. at 166, 122 S.Ct. 1237 (explaining that "a defendant alleging a Sixth Amendment violation must demonstrate a reasonable probability that ... the result of the proceeding would have been different" with the assistance of counsel, and stating that "defects in assistance that have no probable effect upon the trial's outcome do not establish a constitutional violation" (internal quotation marks omitted)); Stincer, 482 U.S. at 745, 107 S.Ct. 2658 (explaining that the "privilege of presence is not guaranteed when presence would be useless, or the benefit but a shadow" (internal quotation marks omitted)); see also Van Arsdall, 475 U.S. at 681, 106 S.Ct. 1431 ("[AJn otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.").
. See, eg., Caver, 349 F.3d at 349-50 ("[I)f Petitioner's trial counsel was, indeed, absent during the re-instruction, a structural error occurred in the trial court proceeding...."). But see United States v. Widgery, 778 F.2d 325, 329 (7th Cir. 1985) ("A judge's failure to show jurors' notes to counsel and allow them to comment before responding violates Fed.R.Crim.P. 43(a), not the constitution.").
. See, eg., United States v. Hillsman, 480 F.3d 333, 335-36 (5th Cir.2007) (holding that the trial court's response to a jury note without first informing counsel did not violate the defendant's right to counsel because the court's response simply refused to give the jury further instructions and therefore "was not a critical stage"); Hudson v. Jones, 351 F.3d 212, 217 (6th Cir.2003) ("[Rlereading of identical jury instructions is not a critical stage of a criminal trial."); Unit ed States v. Morrison, 946 F.2d 484, 503 (7th Cir.1991) ("[Rleading of the jury instructions ... [is not] a critical stage of the proceedings." (emphasis omitted)).
. See, eg., Mickens, 535 U.S. at 166, 122 S.Ct. 1237 (explaining that "a defendant alleging a Sixth Amendment violation must demonstrate a reasonable probability that ... the result of the proceeding would have been different" with the assistance of counsel, and stating that "defects in assistance that have no probable effect upon the trial's outcome do not establish a constitutional violation" (internal quotation marks omitted)); Stincer, 482 U.S. at 745, 107 S.Ct. 2658 (explaining that the "privilege of presence is not guaranteed when presence would be useless, or the benefit but a shadow" (internal quotation marks omitted)).
. See State v. Candedo, 2010 UT 32, ¶ 7, 232 P.3d 1008.
. Simmons v. South Carolina, 512 U.S. 154, 156, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality opinion) (emphasis added); see also Shafer v. South Carolina, 532 U.S. 36, 40, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001) (applying holding from Simmons); Kelly v. South Carolina, 534 U.S. 246, 248, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002) (same).
. Simmons, 512 U.S. at 168, 114 S.Ct 2187 (emphasis added); see also People v. Boyer, 38 Cal.4th 412, 42 Cal.Rptr.3d 677, 133 P.3d 581, 634 (2006) ("[The trial] court was not obliged to instruct further on the 'true meaning' of life without parole. Any instruction that such a sentence guaranteed defendant's incarceration until his death would be inaccurate, considering the Governor's commutation and pardon powers.").
. Simmons, 512 U.S. at 172, 114 S.Ct. 2187 (Souter, J., concurring).
. Id. at 157, 114 S.Ct. 2187 (plurality opinion}.
. Id. at 158-60, 114 S.Ct. 2187.
. Id. at 160, 114 S.Ct. 2187 (internal quotation marks omitted).
. Id. (internal quotation marks omitted).
. 1d.
. Id. at 158, 114 S.Ct. 2187; see also id. at 158 n. 2, 114 S.Ct. 2187 (" 'The board [of probation, parole, and pardons] must not grant parole nor is parole authorized to any prisoner serving a sentence for a second or subsequent conviction ...'" (quoting Ann § 24-21-640 (Supp.1993))).
. Id. at 162, 114 S.Ct. 2187; see also id. at 169, 114 S.Ct. 2187 ("'Because truthful information of parole ineligibility allows the defendant to 'deny or explain' the showing of future dangerousness, due process plainly requires that he be allowed to bring it to the jury's attention. ...").
. Id. at 161, 114 S.Ct. 2187.
. The parties dispute whether his future dangerousness outside of prison was at issue. But because Mr. Maestas's claim fails regardless of whether it was at issue, we need not address this question.
. Id. at 160, 114 S.Ct. 2187.
. See id. at 168, 114 S.Ct. 2187; see also People v. Arias, 13 Cal.4th 92, 51 Cal.Rptr.2d 770, 913 P.2d 980, 1032 (1996) ("Nor does Simmons suggest the jury must be instructed in a manner that affirmatively conceals the possibility of commutation or pardon.").
. Urax Cope § 77-27-9(6). We note that the instruction the jury received regarding life without parole actually misstated the law in Mr. Maestas's favor because it stated that a person sentenced to life without parole would never be eligible for parole.
. We note that Mr. Maestas has not preserved his claims that juror 8 failed to honestly answer material questions during voir dire, or that juror 18 introduced extraneous prejudicial information during jury deliberations. Because he makes these arguments for the first time on appeal, we review these claims for plain or manifest error. Menzies I, 845 P.2d at 224-25.
. Urax R.Crm P. 24(a).
. State v. Pinder, 2005 UT 15, ¶ 20, 114 P.3d 551.
. Id. (internal quotation marks omitted).
. 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984); accord State v. Evans, 2001 UT 22, ¶ 25, 20 P.3d 888; State v. Thomas, 830 P.2d 243, 245 (Utah 1992).
. Thomas, 830 P.2d at 245 (quoting McDonough, 464 U.S. at 556, 104 S.Ct. 845).
. State v. Shipp, 2005 UT 35, ¶ 19, 116 P.3d 317.
. Thomas, 830 P.2d at 246 (reviewing voir dire answer to a question regarding whether a prospective juror "or a close relative [had] been a victim of a violent crime"); Shipp, 2005 UT 35, ¶ 21, 116 P.3d 317 (reviewing voir dire answer to a question regarding whether a prospective juror "knew or recognized the names of the State's witnesses" (alterations omitted)).
. State v. Hauptman, 2011 UT App 75, ¶ 6, 249 P.3d 1009; see also State v. Redding, 2007 UT App 350, ¶ 22, 172 P.3d 319 ('There is no evidence that the jury panel, at the time they responded to the trial court's questions relevant to their ability to obey the court's instructions to disregard the issue of punishment and extraneous evidence, intended to disregard those instructions.").
. Thomas, 830 P.2d at 246.
. See Ura R.Crim. P. 18(e) (listing potential challenges for cause).
. We note that, despite the disclosure of two incidents resulting in criminal charges against juror 18's son, defense counsel did not ask any follow-up questions regarding her son's criminal history. And where defense counsel fails to ask necessary follow-up questions, any claim of potential juror impropriety on the issue may be deemed waived. See State v. DeMille, 756 P.2d 81, 83 (Utah 1988).
. Urax R. Evip. 606(b) ("[A] juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indict»
. Turner v. Louisiana, 379 U.S. 466, 472, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (internal quotation marks omitted); see also Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) ("Due process means a jury capable and willing to decide the case solely on the evidence before it. ...").
. United States v. Benally, 546 F.3d 1230, 1233 (10th Cir.2008).
. See Uram R. Evin. 606(b); see also Fen. R. Evip. 606(b) (mirroring Utah rule 606(b)).
. Benally, 546 F.3d at 1234.
. Uran R. Evin. 606(b)(2)(A) (emphasis added); see also FEo.R.Evin. 606(b) (providing that "a juror may testify about whether ... extraneous prejudicial information was improperly brought to the jury's attention").
. Benally, 546 F.3d at 1236.
. See Gov't of Virgin Islands v. Gereau, 523 F.2d 140, 149 (3d Cir.1975).
. Benally, 546 F.3d at 1237.
. Gov't of Virgin Islands, 523 F.2d at 150.
. Benally, 546 F.3d at 1237; see also id. ("[Thhe inquiry is not whether the jurors became witnesses in the sense that they discussed any matters not of record, but whether they discussed specific extra-record facts relating to the defendant, and if they did, whether there was a
. See, eg., United States v. Straight, 42 M.J. 244, 250 (C.A.A.F.1995) ("Lay opinions about the possibility of parole, made as expressions of opinion or common knowledge, do not fall within the exceptions to [rule] 606(b)."); McWhorter v. State, - So.3d -, -, 2011 WL 4511231 (Ala.Crim.App.2011) (holding that juror's testimony regarding discussions of parole in jury deliberations was not considered extraneous information); Veasey v. State, 276 Ark. 457, 637 S.W.2d 545, 547 (1982) (discussing jury's consideration of parole and noting that rule 606(b) "states plainly that a juror may not testify as to the effect of anything upon his mind as influencing him to assent to the verdict"); Berrier v. Thrift, 107 N.C.App. 356, 420 S.E.2d 206, 211 (1992) (noting that "information about parole eligibility was general information rather than information dealing with this particular defendant" and so was barred by rule 606(b) (internal quotation marks omitted)); see also Erikson v. Rowland, No. 92-55371, 1993 WL 128865, *3 (9th Cir. Apr. 26, 1993) (holding rule 606(b) barred "declarations describ{ing] conversations between jurors and alternates, allegedly misinterpreting the significance of a life sentence without parole"). But see Harris v. Commonwealth, 13 Va.App. 47, 408 S.E.2d 599, 599-600 (1991) (remanding for a hearing on the influence of parole discussion where juror who "was associated in some fashion with the Department of Corrections . proceeded to explain to the jury how the parole system would come into play," but noting Virginia's rule allowing questioning of jurors in "exceptional cases where juror testimony might be admissible to impeach their verdict to prevent a miscarriage of justice" (internal quotation marks omitted)).
. See DeMille, 756 P.2d at 84 (holding that juror's statement during deliberations about her belief or opinion that she received a revelation confirming defendant's guilt was not extraneous prejudicial information); Marquez v. City of Albuquerque, 399 F.3d 1216, 1223 (10th Cir.2005) ("A juror's personal experience ... does not constitute 'extraneous prejudicial information.' "); see also 27 Cmarues Aran WaricHt Et aL, Feperal Practice anp ProcepurE Evipence § 6075 (2d ed. 2007) (stating that "the [606(b)] exception does not apply where jurors use general background facts or data having nothing specifically to do with the case .... [because] no juror can approach deliberations with an entirely clean cognitive slate").
. See Hines v. State, 3 S.W.3d 618, 623 (Tex.App.1999).
. See Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Ctr., 2010 UT 59, ¶¶ 9-10, 242 P.3d 762. Before rule 702 was amended in 2007, "the standard for determining the admissibility of technical or scientific expert testimony was that announced in State v. Rimmasch." Id. 110. The Rimmasch standard required the court to determine that (1) the scientific principles and techniques underlying the expert's testimony are inherently reliable, (2) the principles and techniques have been properly applied to the facts of the case by sufficiently qualified experts, and (3) the proffered evidence will be more probative than prejudicial as required by rule 403. Id. (citing State v. Rimmasch, 775 P.2d 388, 398 nn. 7-8, 403 (Utah 1989)). In amending rule 702, we intended "to clarify the requirements for admission" of expert testimony and subsume the Rimmasch standard into rule 702. Id. ¶ 11; State v. Clopten, 2009 UT 84, ¶ 38, 223 P.3d 1103. Although the rules were again amended after we heard oral argument in this case, because the changes were not substantive, we cite to the current version of the rules in this opinion.
. Urag R. Evin. 702(b).
. Id. 702(c).
. Id. 403.
. State v. Butterfield, 2001 UT 59, ¶ 28, 27 P.3d 1133.
. Id. 129 (internal quotation marks omitted); see also Urak R. Evip. 702(c).
. See Butterfield, 2001 UT 59, 134, 27 P.3d 1133 (noting that many other jurisdictions had concluded that PCR STR DNA testing was "scientifically valid"); see also id. 133 n. 5 ("[Alppel-late endorsement of a technique ends the need for case-by-case adjudication ...." (internal quotation marks omitted)).
. See Kofford v. Flora, 744 P.2d 1343, 1351 (Utah 1987).
. 2001 UT 59, 134, 27 P.3d 1133 (concluding that STR testing is scientifically valid); see also id. 1 35 (basing our conclusion on "the decisional law from other jurisdictions and the overwhelming endorsement by the relevant scientific and forensic literature").
. See, eg., Shabazz v. State, 265 Ga.App. 64, 592 S.E.2d 876, 879 (2004) (explaining that "testimony from the expert witnesses established that Y-STR DNA testing is merely one specific type of STR DNA testing" and that "this latter method of DNA testing has been accepted as valid") (internal quotation marks omitted).
. We are not confined to the record in determining whether a particular method of DNA testing is generally accepted in the scientific community. See Butterfield, 2001 UT 59, 133 n. 5, 27 P.3d 1133.
. See, eg., J.M. Butler, Recent Developments in ¥-Short Tandem Repeat and Y-Single Nucleotide Polymorphism Analysis, 15 Forensic Sct. Rev. 91, 107 (2003) ("Validation and interlaboratory studies have demonstrated that Y-STR typing is reliable."); P. Gill et al., DNA Commission of the International Society of Forensic Genetics: Recommendations on Forensic Analysis Using Y-chromosome STRs, 114 Int'u J. Lecar Men, 305, 305 (2001) ("The use of Y-chromosome STR polymorphisms has become commonplace in forensic laboratories."); L. Gusmao et al., DNA Commission of the International Society of Forensic Genetics (ISFG): An Update of the Recommendations on the Use of Y-STRs in Forensic Analysis, 157 Forensic Set. Int't 187, 187 (2006) ("Y chromosome-specific STR analysis is an important tool in the majority of laboratories working in forensic genetics.").
. See, eg., State v. Calleia, 414 N.J.Super. 125, 997 A.2d 1051, 1064 (N.J.Sup.Ct.App.Div.2010) ("[We are satisfied that there is a general acceptance of Y-STR DNA analysis in the scientific community."), rev'd on other grounds, 206 NJ. 274, 20 A.3d 402 (2011); Curtis v. State, 205 S.W.3d 656, 661 (Tex.Ct.App.2006) ("[Wle hold that the trial court did not abuse its discretion by determining that the YSTR evidence was reliable and relevant...."); State v. Bander, 150 Wash.App. 690, 208 P.3d 1242, 1254-55 (2009) (allowing admission of Y-STR DNA evidence and statistical analysis in part because both the U.S. Scientific Working Group on DNA Analysis Methods and the International Society of Forensic Genetics DNA Commission recognized the statistical analysis method as acceptable for interpreting Y-STR test results).
. See Kofford, 744 P.2d at 1356 (explaining that "[to satisfy rule 702, evidence must be produced that the particular tests relied upon in the case were conducted as specified by the [appropriate scientific} [standards or in an equally reliable manner").
. See id.
. Dr. Wrigley's credentials include a Bachelor of Science in cellular-molecular biology and over ten years of experience analyzing DNA for private laboratories and the Utah State Crime Lab.
. See State v. Whittey, 149 N.H. 463, 821 A.2d 1086, 1095 (2003) (admitting DNA evidence with RFU between 40 and 60); Bander, 208 P.3d at 1247 (admitting DNA evidence with RFU of 75).
. Erin Murphy, The Art in the Science of DNA: A Layperson's Guide to the Subjectivity Inherent in Forensic DNA Typing, 58 Emory LJ. 489, 50304 (2008) (noting that "[the makers of commercial equipment for DNA testing recommend a minimum of 150 RFU" but that "[olther laboratories allow thresholds as low as 50 RFU for inculpation").
. Even though the Y-STR analysis satisfied the threshold showing required by rule 702(b), Mr. Maestas was still free to argue that Sorenson Forensics's minimum threshold of 75 RFUs ren
. Urax R. Evin. 403.
. State v. Killpack, 2008 UT 49, ¶ 53, 191 P.3d 17 (third alteration in original) (internal quotation marks omitted).
. State v. Guzman, 2006 UT 12, ¶ 27, 133 P.3d 363.
. Ura R. Evin. 702(b).
. Id. 702(c).
. See Butterfield, 2001 UT 59, 135, 27 P.3d 1133.
. See, eg., State v. Quintana, 2004 UT App 418, ¶ 5, 103 P.3d 168 ("[We conclude that fingerprint identification is not novel scientific evidence."); United States v. Baines, 573 F.3d 979, 991 (10th Cir.2009) (noting that fingerprint analysis has received an "overwhelming acceptance" by the expert community); United States v. Crisp, 324 F.3d 261, 268 (4th Cir.2003) ("While the principles underlying fingerprint identification have not attained the status of scientific law, they nonetheless bear the imprimatur of a strong general acceptance, not only in the expert community, but in the courts as well."); United States v. Collins, 340 F.3d 672, 682 (8th Cir.2003) ("Fingerprint evidence and analysis is generally accepted.").
. See Simon A. Cole, More Than Zero: Accounting for Error in Latent Fingerprint Identification, 95 J.Crm. L. & Crimmorosy 985 (2005); Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint "Science" Is Revealed, 75 S. CaL. L. Rev. 605 (2002).
. See, eg., Baines, 573 F.3d at 987-88 (concluding that fingerprint identification is reliable despite defendant's citation to a law review article questioning the reliability of such evidence); Crisp, 324 F.3d at 267-68 (same). Indeed, even after these articles were published, courts have continued to hold that fingerprint identification is reliable. See, eg., United States v. Scott, 403 Fed.Appx. 392, 397 (11th Cir.2010) (per curium) ("'We previously have upheld the admission of expert fingerprint evidence...."); United States v. Pena, 586 F.3d 105, 110 (1st Cir.2009) ("Numerous courts have found expert testimony on fingerprint identification ... to be sufficiently reliable. ...").
. Epstein, supra 1143 n. 160, at 649-50. Although courts have been reluctant to accept challenges to fingerprint evidence, we do not foreclose the possibility that such challenges may be successful in the future. We merely conclude that, under the circumstances of this case, Mr. Maestas has not established that the trial court abused its discretion in admitting the fingerprint identification evidence.
. 2004 UT App 418, 103 P.3d 168.
. Mr. Maestas initially filed a motion for a hearing to determine whether fingerprint identification evidence is inherently reliable under State v. Rimmasch, 775 P.2d 388 (Utah 1989). At the time Mr. Maestas filed the motion, the holding in Rimmasch governed the analysis of whether expert scientific evidence is inherently reliable. See id. at 397-400. But by the time of the pretrial motion hearing, rule 702 of the Utah Rules of Evidence had been amended. See Urax R. Evip. 702. "Because the current version of rule 702 incorporates an updated reliability analysis for expert testimony, the Rimmasch test has been subsumed in the new rule." Clopten, 2009 UT 84, ¶ 38, 223 P.3d 1103.
. See Butterfield, 2001 UT 59, ¶ 28, 27 P.3d 1133.
. State v. Hamilton, 827 P.2d 232, 238 (Utah 1992).
. Id.
. State v. Robertson, 932 P.2d 1219, 1231 (Utah 1997), overruled on other grounds by State v. Weeks, 2002 UT 98, 61 P.3d 1000.
. Hamilton, 827 P.2d at 238 (internal quotation marks omitted).
. By contrast, under the criminal determination of homicide, the State must prove that the defendant had the intent to cause the death of another. See Ura Cope § 76-5-203(2)(a) ("Criminal homicide constitutes murder if ... the actor intentionally or knowingly causes the a death of another. ...").
. Butterfield, 2001 UT 59, 128, 27 P.3d 1133.
. Id. (alteration in original) (internal quotation marks omitted).
. Uran R. Evin. 704(b).
. See State v. Tucker, 2004 UT App 217, ¶ 9, 96 P.3d 368 (concluding that a medical examiner's testimony about the death being a homicide, meaning the "deliberate act of one individual leading to the death of another individual," did not violate rule 704 because it was clear that the medical examiner was not testifying as to the defendant's state of mind).
. Utag R. Evin 702(a).
. State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993) (internal quotation marks omitted).
. Id. at 1363 n. 12 ('We also note that an integral element of a rule 702 determination to admit expert evidence is a balancing of the pro-bativeness of the evidence against its potential for unfair prejudice.").
. State v. Menzies (Menzies I), 845 P.2d 220, 224-25 (Utah 1992).
. State v. Tillman, 750 P.2d 546, 555 (Utah 1987).
. State v. Bakalov, 1999 UT 45, ¶ 56, 979 P.2d 799.
. Tillman, 750 P.2d at 554.
. Id.
. Id. at 555; see also State v. Eaton, 569 P.2d 1114, 1116 (Utah 1977) ("[There should be no such reversal merely to criticize a prosecutor who, perhaps in the ardor of advocacy in the trial, oversteps the bounds of propriety, nor merely because error has been committed.").
. Tillman, 750 P.2d at 555 (internal quotation marks omitted).
. Id.
. During Dr. Wrigley's testimony, the prosecution asked if the lab had the DNA from Ms. Bott's fingernail scrapings "available for other testing .. so somebody else could test it if they wanted to [or] if they disagree[d]" with the Y-STR results. In closing arguments, the prosecution also stated that "the DNA evidence is still there ... [if you want to test it, if you think it's not his, test it again. It's all available for whatever kind of test, Y-STR, mitochondrial DNA, RFLP, whatever kind of testing you want to do, it's there."
. In re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see also State v. Swenson, 838 P.2d 1136, 1138 (Utah 1992) ("Both the United States Constitution and the Utah Constitution require that the burden of proving all elements of a crime is on the prosecution.").
. State v. Ross, 2007 UT 89, 155, 174 P.3d 628 (internal quotation marks omitted).
. Bakalov, 1999 UT 45, 156, 979 P.2d 799.
. See, eg., id. 160 (concluding that the prosecution's remark that the defendant "could have tested the [DNA]" if he wanted to did not qualify as misconduct because "the prosecutor spoke to counter both the argument that testing was maliciously withheld and defendant's repeated attacks on the prosecutor's integrity").
. The first instance of alleged misconduct came after a defense witness, Peter Rosenberg, testified that Mr. Irish made racist comments during the brief time the two shared a jail cell. On cross-examination, the prosecution asked Mr. Rosenberg why jail records did not show that the two men shared a cell. In response, Mr. Rosenberg stated that he shared a cell with Mr. Irish for only "an hour ... maybe an hour and a half." The second instance of alleged misconduct came on cross-examination of another defense witness, Troy Archuleta. Mr. Archuleta testified that Mr. Irish told him that he had "stolen somebody's car and left him at a store and then committed a crime." On cross-examination, the prosecution asked Mr. Archuleta whether he had told a State investigator to "f* * * off." Mr. Archuleta responded that he did not make this comment. The prosecution did not introduce jail records: or other documentation to support the two questions.
. State v. Young, 853 P.2d 327, 349 (Utah 1993).
. State v. Emmett, 839 P.2d 781, 786-87 (Utah 1992).
. Id. at 787.
. Id. at 787 n. 18 (internal quotation marks omitted).
. State v. Winward, 941 P.2d 627, 633 (Utah Ct.App.1997).
. Id.
. See Young, 853 P.2d at 349.
. Id.
. Id.
. "While we find no reversible error'" as a result of the statements made by the prosecution, we note that "the ends of justice are best served by prosecutors who confine their arguments in all criminal cases, and especially in death penalty cases, within the boundaries of scrupulous fairness." Tillman, 750 P.2d at 557. "The State's obligation is to assure that justice is done. That obligation does not include or authorize overreaching, exaggeration, or any form of personalizing by the prosecutor in the deliberation process." Id.
. State v. Honie, 2002 UT 4, ¶ 44, 57 P.3d 977.
. State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (internal quotation marks omitted).
. State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993).
. Uran Cope § 76-5-202(1).
. Id. § 76-2-103(1).
. Id. § 76-2-103(2).
. See State v. Casey, 2003 UT 55, ¶ 48, 82 P.3d 1106 ("It is well established that criminal intent is seldom proved by direct evidence but must be instead inferred from the circumstances of the given facts." (internal quotation marks omitted)); State v. James, 819 P.2d 781, 789 (Utah 1991) ("[UJnless a confession is made by the defendant concerning intent, or unless the court is somehow able to open the mind of the defendant to examine his motivations, intent is of necessity proven by circumstantial evidence.").
. See James, 819 P.2d at 791 ([Intent can be implied or inferred from the character of the act." (internal quotation marks omitted)).
. State v. Holgate, 2000 UT 74, ¶ 21, 10 P.3d 346 (internal quotation marks omitted).
. Urax Cope § 76-6-203(1).
. Id. § 76-6-202(1)(a)-(c).
. Id. § 76-6-203(1)(a).
. Although Ms. Chamberlain did not testify whether the perpetrator hit her, we consider this evidence because we view all the evidence in the light most favorable to the jury's verdict. See Honie, 2002 UT 4, % 44, 57 P.3d 977.
. State v. Watts, 675 P.2d 566, 568 (Utah 1983).
. State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288.
. Id ¶ 17.
. Id. 118.
. 536 U.S. 304, 122 S.Ct. 2242, 153 LEd.2d 335 (2002).
. As previously noted, we recognize that the phrases "mentally retarded" and "mental retardation" are now disfavored, because this language is used in the Atkins opinion and the Utah Code, we use these phrases in this opinion.
. Id. § 7i-15a-101(1) ("A defendant who is found by the court to be mentally retarded as defined in Section 77-15a-102 is not subject to the death penalty.").
. 536 U.S. at 321, 122 S.Ct. 2242 (internal quotation marks omitted).
. Id. at 317, 122 S.Ct. 2242.
. Id. (second alteration in original) (internal quotation marks omitted).
. Cope §§ 77-15a-101 to -106.
. Id.§ 77-15a-101(1).
. Id.§ 77-15a-102.
. Id. § Ti-15a-104(12)(a) ("[A] defendant is presumed to be not mentally retarded unless the court, by a preponderance of the evidence, finds the defendant to be mentally retarded.").
. Id. § 77-15a-104(11)(a) (explaining that "'the judge shall make the determination" of whether the defendant is exempt from the death penalty because of mental retardation).
, Id. § 77-15a-102(1); id. § 77-15a-104(11)(a); id. § 77-15a-104(12)(a).
. Id. § 77-15a-102(1).
. We do not consider Mr. Maestas's claim that the trial court erred in failing to find that he had SDAF in the area of reasoning because the Exemption Statute requires only that defendants demonstrate such deficits "in the areas of reasoning or impulse control." Id. (emphasis added). Thus, even if the court had erred in determining that he did not have the requisite deficits in the area of reasoning, such an error would have necessarily been harmless because it would not have affected the outcome of the Atkins hearing. See, e.g., State v. Arguelles, 2003 UT 1, ¶ 94, 63 P.3d 731 ("[Wle need not reverse ... if we find [an] error to be harmless beyond a reasonable doubt."); State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d 888 ("[HJarmless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.").
. State v. Levin, 2006 UT 50, ¶ 22, 144 P.3d 1096.
. Id. 124; see also id. M25 (explaining that the appropriate standard of review for a mixed question of fact and law is determined by considering "(1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court's application of the legal rule relies on facts observed by the trial judge, such as a witness's appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts; and (3) other policy reasons that weigh for or against granting discretion to trial courts" (internal quotation marks omitted)).
. See id. % 24.
. State v. Pena, 869 P.2d 932, 936 (Utah 1994,) holding modified by Levin, 2006 UT 50, 144 P.3d 1096.
. Urag Cope § 77-15a-102(1); id. § 77-15a-104(12)(a).
. Alliant Techsystems, Inc. v. Salt Lake Cnty. Bd. of Equalization, 2012 UT 4, ¶ 21, 270 P.3d 441 (internal quotation marks omitted).
. Id.
. Cope § 77-15a-102(1) (emphases added).
. Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (internal quotation marks omitted).
. Id. (third and fourth alterations in original).
. American PsycntatRic Association, Diagnostic anp Statisticar Manuar or Mentar Disorpers 41 (4th ed., 2000) (hereinafter DSM-IV-TR) ("General intellectual functioning is defined by the intelligence quotient (IQ or IQ equivalent) obtained by assessment with one or more of the standardized, individually administered intelligence tests...").
. Id. at 42 ("'The choice of testing instruments and interpretation of results should take into account factors that may limit test performance (e.g., the individual's sociocultural background, native language, and associated communicative, motor, and sensory handicaps).").
. 536 U.S. at 317 n. 22, 122 S.Ct. 2242. For example, much like our statute, the APA currently defines mental retardation as "characterized by significantly subaverage intellectual functioning (an IQ of approximately 70 or below) with onset before age 18 years and concurrent deficits or impairments in adaptive functioning." DSM-IV-TR, supra note 243, at 39.
. DSM-IV-TR, supra note 243, at 41 ("'It should be noted that there is a measurement error of approximately 5 points in assessing IQ, although this may vary from instrument to instrument....").
. For instance, the APA notes that the interpretation of test results "should take into account factors that may limit test performance." Id. at 42.
. See id. at 41-42 ("[It is possible to diagnose [mJental [retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive behavior. Conversely, [mlJental [rle-tardation would not be diagnosed in an individual with an IQ lower than 70 if there are no significant deficits or impairments in adaptive functioning.").
. Egbert & Jaynes v. R.C. Tolman Constr. Co., 680 P.2d 746, 748 (Utah 1984); see also, eg., Tucker v. Tucker, 910 P.2d 1209, 1216 (Utah 1996) ("[The trial court, as trier of fact,[is] entitled to weigh the evidence and reject all or part of any witness's testimony, even that of an expert." (citation omitted)).
. Urax Cope § 77-15a-102(1).
, Levin, 2006 UT 50, 1%¥24-25, 144 P.3d 1096 (explaining that, when considering mixed questions of fact and law, the trial court's "[dliscretion is broadest-and [our] standard of review is most deferential-when the application of a legal concept is highly fact dependant and variable").
. T-Mobile USA, Inc. v. Utah State Tax Comm'n, 2011 UT 28, ¶ 9, 254 P.3d 752 (first
. Glew v. Ohio Sav. Bank, 2007 UT 56, ¶ 18, 181 P.3d 791.
. Mr. Maestas contends that there may be an even higher margin of error when testing the bottom 2 percent of the population. But to support this position, he points only to one defense expert's statement that many individuals with borderline or mild mental retardation may have a low frustration tolerance that can cause variable or inconsistent effort on IQ tests. The trial court apparently did not consider the expert's testimony sufficient to establish a higher error of measurement for the bottom 2 percent of the population and Mr. Maestas offers no argument to cause us to reach a different conclusion.
. One defense expert testified at the Atkins hearing that the "Flynn effect" is the concept that "IQ scores in the population as a whole tend to rise over time." In his brief to this court, Mr. Maestas claims that individual IQ scores must be adjusted downward to account for the Flynn effect or risk overestimating a person's actual IQ, and he asserts that the trial court did not give proper consideration to the Flynn effect in its ruling. The court concluded that "application of the Flynn [elffect was not intended to require that each individual IQ test score must be adjusted downwards." But after hearing testimony about the reliability of Mr. Maestas's IQ tests and what those tests indicated about his actual IQ, the court nevertheless found that taking into account the defense's theory of the Flynn effect along with the standard error of measurement would still result in Mr. Maestas having an IQ score of at least seventy-six.
. Taking into account the standard error of measurement, an IQ score of seventy to seventy-five is in the upper end of the range provided for mental retardation. DSM-IV-TR, supra note 243, at 49 (defining mild mental retardation as an "IQ level 50-55 to approximately 70,") id. at 41 (noting that "there is a measurement error of approximately 5 points in assessing IQ," such that an IQ score of seventy may "represent a range of 65-75"). The prosecution's expert testified that data from a 2005 IQ test indicated that Mr. Maestas's IQ score was at least eighty-five and that his intellectual functioning fell in the "low average" range rather than the mentally retarded range. After weighing the various assessments of Mr. Maestas, the defense experts testified that Mr. Maestas's actual IQ was likely seventy to eighty. One defense expert testified that this would place Mr. Maestas in the bottom 2-6 percent of the population, but acknowledged that a person in the bottom 4-6 percent of the population would likely fall into the "borderline intellectual functioning" range, rather than the mentally retarded range.
. The prosecution's witness testified that the administrator had misscored some items on the test and had also failed to prompt or encourage Mr. Maestas at some points when such prompts would have been appropriate. One of the defense experts concurred that the administrator should have prompted or encouraged Mr. Maes-tas at some points when he did not. Accordingly, after conducting his review of the raw data from the 2005 test, the prosecution's expert testified that Mr. Maestas's IQ score would have been at least eighty-five if the administrator had adhered to proper procedures.
. At the ages of fifteen and seventeen, Mr. Maestas took two IQ tests that resulted in him being classified as, respectively, in the "low dull normal" range and the "dull normal" range. One of the defense experts testified that such classifications would indicate an IQ score of eighty to eighty-nine. A defense expert also concluded that Mr. Maestas's performance on the 2005 test seemed consistent with these IQ tests he had taken as a youth. Although Mr. Maestas had taken other IQ tests between those in his youth and the one in 2005, the court chose not to consider them because the instruments used were screening measures and therefore had "limited usefulness in terms of assessing [Mr. Maes-tas's] overall intellectual functioning," and because there were questions about the reliability and proper administration of these tests. In addition, the prosecution's expert administered an IQ test to Mr. Maestas in 2007 that resulted in a score of sixty-five. But in light of his other assessments of Mr. Maestas, the prosecution's expert testified that Mr. Maestas had not put forth a full effort and that the resulting score underestimated his intellectual functioning. The defense experts likewise acknowledged that the IQ score of sixty-five was "most likely an underestimate of his true ability, due in large part to the variability and inconsistency of his effort on the tests" and was therefore "not a full indication of how well [Mr. Maestas] could do if he tried his actual hardest."
. Mr. Maestas argues that the court should have given greater weight to the notation in his school records of "EMR," which he claims means "Educable Mentally Retarded." But the court considered the notation and found that it was not strong evidence of significant subaver-age general intellectual functioning because there was no indication of who made the notation or on what basis it was made. The prosecution's expert testified that the EMR notation was not accompanied by IQ scores or any explanation from a qualified evaluator, which would typically support an official diagnosis of mental retardation. As a result, the court determined that the notation was likely made by a teacher, rather than a qualified evaluator. Further, the court pointed out that the notation was made only in the 1969-70 school year for four subjects (bodybuilding, science, social studies, and health), while Mr. Maestas's school records for that time labeled him as "educable" in other subjects, including reading and arithmetic. Because of the ambiguities regarding the "EMR" notation, the court concluded that "insufficient background information was provided to allow the [clourt to make a reasonable assessment of this classification."
. In reaching this conclusion, the court also noted that its observations of Mr. Maestas during court proceedings and the letters Mr. Maestas sent to the court "suggest that, while he likely has cognitive deficits, his intellectual functioning is not significantly [sJubaverage." Mr. Maestas argues that it was inappropriate for the court to consider its own observations because it can be difficult for an untrained person to recognize mental retardation. Although we acknowledge that it would be inappropriate for the court to rely solely on its own observations of the defendant to the exclusion of the evidence presented by the parties, in this instance, we are not troubled by the court considering its observations of Mr. Maestas as merely one factor in its determination.
. Pena, 869 P.2d at 936 (explaining that there are circumstances in which the trial court is in "'the best position to assess the credibility of witnesses and to derive a sense of the proceeding as a whole").
. See Urau Cope § 77-15a-102(a).
. See Selvig v. Blockbuster Enters., LC, 2011 UT 39, ¶ 29 n. 4, 266 P.3d 691 (declining to address whether one party waived its election of remedies defense after determining that the election of remedies provision in the contract does not apply to the claims at issue); Summit Water Distrib. Co. v. Summit Cnty., 2005 UT 73, ¶ 50, 123 P.3d 437 ("Our settled policy is to avoid giving advisory opinions in regard to issues unnecessary to the resolution of the claims before us."); Provo City Corp. v. Thompson, 2004 UT 14, ¶ 22, 86 P.3d 735 ("We have observed on many occasions that this court is not inclined to issue mere advisory opinions." (internal quotation marks omitted)); Gallivan v. Walker, 2002 UT 89, ¶ 97, 54 P.3d 1069 (Durham, J., concurring) ("[Clourts should generally resolve cases on the narrowest applicable grounds unless specific reasons exist for offering broader guidance.").
. See Uran Cope § 77-15a-104(12)(a). Mr. Maestas also claims that the Exemption Statute is unconstitutional because "article I, section 9 require[s] that a death sentence be imposed only in those cases where there is a 'high degree of confidence that that penalty is appropriate.'" (quoting State v. Wood, 648 P.2d 71, 81 (Utah 1982)). But he does not offer any analysis of the text of article I, section 9 or any case law to support this argument. Although there is not "a formula of some kind for adequate framing and briefing of state constitutional issues ... before this court[,] .... [wle have ... frequently noted that mere mention of state [constitutional] provisions will not suffice." State v. Tiedemann, 2007 UT 49, ¶ 37, 162 P.3d 1106. Thus, because he has provided us with no argument to consider, we do not address this claim.
. Urax Cope § 76-1-501(1) ("A defendant in a criminal proceeding is presumed to be innocent until each element of the offense charged against him is proved beyond a reasonable doubt.").
. See Wood, 648 P.2d at 83 (explaining that "'the sentencing authority ... must be persuaded beyond a reasonable doubt that total aggravation outweighs total mitigation ... [and] that the imposition of the death penalty is justified and appropriate in the circumstances" (internal quotation marks omitted)).
. Id. at 81.
. Honie, 2002 UT 4, 15, 57 P.3d 977.
. State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276.
. Wood, 648 P.2d at 83.
. See, eg., Maldonado v. Thaler, 662 F.Supp.2d 684, 705-07 (S.D.Tex.2009) (rejecting the argument that Atkins made freedom from mental retardation an element of all capital crimes and that therefore a jury must determine mental retardation); State v. Grell, 212 Ariz. 516, 135 P.3d 696, 706 (2006) (rejecting the argument that a jury must find that a defendant is not mentally retarded because mental retardation is neither equivalent to an element of a crime nor a fact that increases the available penalty); Rodriguez v. State, 919 So.2d 1252, 1267 (Fla.2005) (rejecting the argument that a state statute is unconstitutional for permitting a judge to determine whether the defendant is mentally retarded); Pruitt v. State, 834 N.E.2d 90, 112-13 (Ind.2005) (rejecting the defendant's argument that mental retardation is a factual determination that may result in a sentence enhancement and therefore must be determined by a jury); Bowling v. Com
. See, eg., Grell, 135 P.3d at 702 (concluding that there is "no constitutional bar to imposing the burden of proving mental retardation on the defendant," and noting that only one state currently "place[d] the burden of disproving mental retardation on the state"); State v. Jimenez, 188 N.J. 390, 908 A.2d 181, 188-91 (2006) (concluding that it is appropriate for the defendant to bear the burden of proving mental retardation and noting that "[elvery state that has addressed the issue has found that the defendant should bear the burden of proof on an Atkins claim"), modified per curiam, 924 A.2d 5B (N.J.2007); State v. Lott, 97 Ohio St.3d 303, 779 N.E.2d 1011, 1016 (2002) (concluding that "[pllacing the burden of proof on" the defendant to prove mental retardation "does not violate constitutional principles").
. See Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (comparing proof of mental retardation to the affirmative defense of insanity); see also Grell, 135 P.3d at 702 ("'Proof of mental retardation is like proof of an affirmative defense. ...").
. See, eg., Martin v. Ohio, 480 U.S. 228, 236, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987) (upholding a state's requirement that a defendant must prove the affirmative defense of self defense); Ford v. Wainwright, 477 U.S. 399, 417, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (plurality opinion) (permitting states to place the burden of proof on the defendant to prove the affirmative defense of insanity); Patterson v. New York, 432 U.S. 197, 206-10, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (upholding a state's requirement that a defendant prove the affirmative defense of extreme emotional disturbance).
. See Atkins, 536 U.S. at 318, 122 S.Ct. 2242.
. Id. at 306, 122 S.Ct. 2242.
. Id. at 321, 122 S.Ct. 2242.
. Id. at 306, 122 S.Ct. 2242.
. Id. at 318, 122 S.Ct. 2242 (emphasis added).
. See id. at 321, 122 S.Ct. 2242 ("Construing and applying the Eighth Amendment in the light of our evolving standards of decency, we therefore conclude that such punishment is excessive and that the Constitution places a substantive restriction on the State's power to take the life of a mentally retarded offender." (internal quotation marks omitted)).
. Walker v. True, 399 F.3d 315, 326 (4th Cir. 2005) (internal quotation marks omitted) (discussing Virginia's exemption statute); see also In re Johnson, 334 F.3d 403, 405 (5th Cir.2003) (per curiam); Beckworth v. State, 946 So.2d 490, 509 n. 6 (Ala.Crim.App.2005); People v. Jackson, 45 Cal.4th 662, 88 Cal.Rptr.3d 558, 199 P.3d 1098, 1109 (2009); Nixon v. State, 2 So.3d 137, 145 (Fla.2009); Head v. Hill, 277 Ga. 255, 587 S.E.2d 613, 620 (2003); Pruiit, 834 N.E.2d at 101-03; Bowling, 163 S.W.3d at 379-80; State v. Williams, 831 So.2d 835, 860 n. 35 (La.2002), superseded by 2003 La. Acts 998, as recognized in State v. Anderson, 996 So.2d 973, 983-85 (La.2008); Russell v. State, 849 So.2d 95, 148 (Miss.2003); State v. Johnson, 244 S.W.3d 144, 151 (Mo.2008); Jimenez, 908 A.2d at 190 (N.J.2006); State v. Flores, 135 N.M. 759, 93 P.3d 1264, 1267 (2004); People v. Smith, 193 Misc.2d 462, 751 N.Y.S.2d 356, 357 (Sup.Ct.2002); State v. Hill, 177 Ohio App.3d 171, 894 N.E.2d 108, 120 (2008); Howell v. State, 138 P.3d 549, 561-62 (Okla.Crim.App.2006); State v. Laney, 367 S.C. 639, 627 S.E.2d 726, 731-32 (2006); Howell v. State, 151 S.W.3d 450, 465-67 (Tenn.2004); Ex parte Briseno, 135 S.W.3d 1, 9-10 (Tex.Crim.App.2004); Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21, 50-51 (2004).
. Grell, 135 P.3d at 707.
. See Wood, 648 P.2d at 83.
. See id. at 81.
. Uraxg Cop® § 76-3-207(1)(a).
. See State v. Lafferty (Lafferty II), 2001 UT 19, ¶ 128, 20 P.3d 342.
. Urag Cope § 76-3-207(5)(b).
. Id.
. Specifically, Mr. Maestas objected to defense counsel's plan to present a witness who would testify that she had observed Mr. Maestas having sex with his sister when he was a child.
. As a brief overview, defense counsel explained that they planned to present evidence regarding Mr. Maestas's neuro-psychology, his social history (including family background and issues of abuse), the interplay between Mr. Maes-tas's social history and the current offense, his institutional risk assessment, and his intelligence (including his IQ tests and the relationship between his intelligence and social history).
. See infra Part IV.C.4.d.
. Mr. Maestas also claims that the trial court violated his right to counsel under article I, section 12 of the Utah Constitution. He contends that this claim was preserved because counsel "argued below that [his] state and federal constitutional rights were violated and also submitted a motion indicating that all motions were being made under the state and federal constitutions." But "[wle have ... frequently noted that mere mention of state [constitutional] provisions will not suffice" to preserve a claim. State v. Tiedemann, 2007 UT 49, ¶ 37, 162 P.3d 1106; see also State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 ([MJere mention does not preserve [an] issue for appeal.... [An objection must at least be raised to a level of consciousness such that the trial [court] can consider it." (fourth alteration in original) (internal quotation marks omitted)). As Mr. Maestas never specifically argued below that the trial court violated article I, section 12 of the Utah Constitution by allowing him to waive the right to present mitigating evidence, this claim is not preserved. Accordingly, we review the claim for plain error. State v. Menzies (Menzies I), 845 P.2d 220, 224-25 (Utah 1992). To demonstrate obvious error, a party "must show that the law governing the error was clear at the time the alleged error was made." State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276. Because we have never ruled that article I, section 12 of the Utah Constitution requires that defense counsel present mitigating evidence over the objections of a defendant, the trial court did not commit an obvious error on this basis. Accordingly, we reject Mr. Maestas's article I, section 12 claim.
. See State v. Candedo, 2010 UT 32, ¶ 7, 232 P.3d 1008.
. U.S. Const amend. VI.
. McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).
. Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
. Id.; accord State v. Wood, 648 P.2d 71, 91 (Utah 1982) ("[Aln attorney acts as an assistant for his client, and not as a master.").
. Faretta, 422 U.S. at 819, 95 S.Ct. 2525.
. See State v. Arguelles, 2003 UT 1, ¶ 83, 63 P.3d 731 ("Although the United States Supreme Court has never decided whether a defendant may waive the presentation of mitigating evi
. Id. 182.
. Id.
. Id. 1% 82-83.
. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
. See Wood, 648 P.2d at 91 ("Trial tactics lie within the prerogative of counsel and may not be dictated by his client.").
. See Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) ("[Clertain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate.").
. Jones, 463 U.S. at 751, 103 S.Ct. 3308.
. State v. Woodland, 945 P.2d 665, 668 (Utah 1997).
. Arguelles, 2003 UT 1, % 82, 63 P.3d 731.
. See, eg., Wood, 648 P.2d at 91-92.
. See Arguelles, 2003 UT 1, ¶ 82, 63 P.3d 731; see also Singleton v. Lockhart, 962 F.2d 1315, 1322 (8th Cir.1992) (finding no ineffective assistance of counsel where counsel complied with client's demand to present no mitigating evidence); State v. Ashworth, 85 Ohio St.3d 56, 706 N.E.2d 1231, 1237-39 (1999) (upholding death verdict where defendant chose to present no mitigating evidence); Wallace v. State, 893 P.2d 504, 511-12 (Okla.Crim.App.1995) (upholding death verdict where a represented defendant openly sought death penalty and chose to present no mitigating evidence); Zagorski v. State, 983 S.W.2d 654, 659 (Tenn.1998) (finding no ineffective assistance of counsel where counsel complied with client's demand to present no mitigating evidence).
. Id. at 670-71.
. Id. at 668-69.
. See 648 P.2d at 91 (explaining that "(aln attorney who refuses to present such a basic claim as that of innocence acts outside the duties of an attorney, even if the claim of innocence detracts from other defenses presented by counsel").
. Wood, 648 P.2d at 92.
. Id.
. 494 U.S. 299, 306 n. 4, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990).
. Id. at 302-03, 306-08, 110 S.Ct. 1078 (upholding Pennsylvania's death penalty scheme in the face of a challenge to the requirement that the jury must return a sentence of death if it finds that the aggravating factors outweigh the mitigating factors).
. 550 U.S. 465, 471-73, 127 S.Ct. 1933, 167 LEd.2d 836 (2007).
. Id.
. See id. at 475, 479, 127 S.Ct. 1933.
. Id. at 479, 127 S.Ct. 1933.
. Id. at 475, 127 S.Ct. 1933.
. Woodland, 945 P.2d at 668.
. Arguelles, 2003 UT 1, 182, 63 P.3d 731.
. Wood, 648 P.2d at 92.
. Woodland, 945 P.2d at 670.
. Id.
. Arguelles, 2003 UT 1, 50 n. 11, 63 P.3d 731 (internal quotation marks omitted); see also Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) ("[Wle can conceive of no basis for demanding a higher level of
. Mr. Maestas contends that the U.S. Supreme Court's holding in Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), stands for the proposition that "a defendant's right to self-representation-or to direct the presentation of evidence-cannot be upheld if the defendant is not mentally capable of making the decision." But in Edwards, the Court stated only that "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial ... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Id. at 178, 128 S.Ct. 2379 (emphasis added). Thus, Edwards allows, but does not require, states to have heightened standards for determining competency to waive the right to counsel. The standard that we impose in Utah is that the defendant must (1) be competent and (2) "intelligently and knowingly waive the right to assistance of counsel." State v. Lafferty (Lafferty I), 749 P.2d 1239, 1248 (Utah 1988). We do not require that defendants show a heightened level of competence to waive the right to counsel. Further, Mr. Maestas did not waive his right to counsel in this case; he waived his right to present further mitigating evidence. And Ed wards deals solely with defendants' ability to waive the right to counsel rather than their ability to make other decisions regarding their defense. Accordingly, Edwards is not applicable and we are not persuaded that defendants must demonstrate a higher level of competence to waive the presentation of mitigating evidence than that required to stand trial.
. Urax Cope § 77-15-2 ("[A) person is incompetent to proceed if he is suffering from a mental disorder or mental retardation resulting either in: (1) his inability to have a rational and factual understanding of the proceedings against him or of the punishment specified for the offense charged; or (2) his inability to consult with his counsel and to participate in the proceedings against him with a reasonable degree of rational understanding." (emphasis added)); Lafferty I, 749 P.2d at 1243 ("[The relevant inquiry is whether [the defendant] had the ability to assist counsel, not whether he in fact chose to assist counsel or to comply with all of counsel's wishes.").
. California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (emphasis added) (internal quotation marks omitted); see also Skipper v. South Carolina, 476 U.S. 1, 8, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (explaining that a defendant must be "permitted to present any and all relevant mitigating evidence that is available" (emphasis added)).
. We note that the Court has held that defense counsel must make a reasonable investigation into mitigating circumstances on behalf of a defendant, even if the defendant is uncooperative. See, e.g., Rompilla v. Beard, 545 U.S. 374, 377, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (holding that, "even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial"); Burger v. Kemp, 483 U.S. 776, 788, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (considering whether counsel's "performance in evaluating the miti
. Arguelles, 2003 UT 1, 1 82, 63 P.3d 731.
. Id. 1 85 ("[We are not convinced that defendant's failure to offer all possible mitigating evidence undermined the reliability of the verdict. Even where a defendant seeks the death penalty, the death verdict will not stand without conformity with the procedural safeguards provided in our death penalty statutes."). In Arguelles, because the defendant was seeking the death penalty, he "indicated ... that he would present 'very little, if any' mitigation evidence." Id. 131. He presented "one witness, five documents containing medical and psychological information, and a handwritten sheet of mitigating factors for the judge to consider." Id. The defendant explained that he only presented this evidence because "[i}t was indicated to me that by law it may well be remanded back to the court if I didn't offer the court some sort of mitigation." Id. 1 34 (internal quotation marks omitted). On appeal, the court assistant (an attorney appointed to handle the mandatory appeal of the case as a result of the defendant's refusal to oppose his sentence) claimed "that the presentation of mitigating evidence by [the defendant] was merely a 'sham,' creating a breakdown in the adversarial system that necessarily draws into question the reliability of the death verdict." Id. €80. Nonetheless, we concluded that the lack of further mitigating evidence under these circumstances did not result in the defendant receiving an unreliable death sentence. Id. 1 85.
. Id. 185 (internal quotation marks omitted).
. Id.
. We note that, in affirming the defendant's death sentence in Blystone, the U.S. Supreme Court pointed out that although the defendant had "decided not to present any proof of mitigating evidence during his sentencing proceedings[,] . the jury was specifically instructed that it should consider any mitigating circumstances which [the defendant] had proved by a preponderance of the evidence, and ... any mitigating evidence presented at trial, including that presented by either side during the guilt phase of the proceedings." 494 U.S. at 306 n. 4, 110 S.Ct. 1078. The Court concluded that this was "sufficient to satisfy the dictates of the Eighth Amendment." Id. at 308, 110 S.Ct. 1078.
. See, eg., Brown, 479 U.S. at 541, 107 S.Ct. 837; Skipper, 476 U.S. at 8, 106 S.Ct. 1669.
. Ura Const. art. I, § 9.
. Dexter v. Bosko, 2008 UT 29, ¶ 17, 184 P.3d 592; see also id. ¶ 19, (holding that "[a] prisoner suffers from unnecessary rigor when subject to unreasonably harsh, strict, or severe treatment").
. Id. 117 (emphasis added).
. Brown, 479 U.S. at 541, 107 S.Ct. 837.
. Id.
. Id.
. Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (internal quotation marks omitted); see also id. (explaining that the Eighth Amendment is satisfied "when the jury can consider relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime" (emphases added)).
. Penry v. Lynaugh, 492 U.S. 302, 327-28, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); see also Saffle v. Parks, 494 U.S. 484, 492-93, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (noting that the Eighth Amendment requires "a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence" (internal quotation marks omitted)).
. See, eg., Lockett v. Ohio, 438 U.S. 586, 604 n. 12, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); see also State v. Kell, 2002 UT 106, ¶ 51, 61 P.3d 1019 (noting that the federal constitution does not require that the jury be presented with evidence "to make a purely emotional decision instead of a reasoned response") (internal quotation marks omitted).
. Lockett, 438 U.S. at 604 n. 12, 98 S.Ct. 2954 (emphases added).
. Burns v. Commonwealth, 261 Va. 307, 541 S.E.2d 872, 893 (2001).
. Cherrix v. Commonwealth, 257 Va. 292, 513 S.E.2d 642, 653 (1999).
. Lockett, 438 U.S. at 604 n. 12, 98 S.Ct. 2954.
. Uran Cope § 76-3-207(5)(b).
. Arguelles, 2003 UT 1, 1119, 63 P.3d 731.
. Id. (internal quotation marks omitted).
. Ura Cope § 76-3-207(3). These statutory aggravating factors include that "the homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner," id. § 76-5-202(1)(r), or in the course of an attempt to commit forcible sexual abuse, aggravated robbery, or aggravated burglary, id. § 76-5-202(1)(d).
. See State v. Menzies (Menzies II), 889 P.2d 393, 405 (Utah 1994) ("[The various facts of the crime that ... do not rise to the level of ... statutory [aggravating factors] could still have been considered.").
. Urau Cope § 76-3-207(2)(a).
. Id. § 76-3-207(3).
. See id. § 76-5-202(1) (noting that a conviction for aggravated murder requires the State to prove that the defendant caused the death under one of several statutory aggravating factors).
. See id. § 76-3-207(5)(b).
. See id. § 76-5-202(1)(d).
. See id.
. See id. § 76-5-202(1)(x).
. See id. § 76-5-202(1)(d).
. Mr. Maestas does not argue that the outcome of the guilt phase was affected by any insufficiency in the evidence regarding these two statutory aggravating factors. Indeed, Mr. Maestas acknowledges, and does not challenge, that the jury found that the homicide was committed in the course of an aggravated robbery and in the course of an aggravated burglary, both of which constitute statutory aggravating factors sufficient to support his conviction for aggravated murder.
. Arguelles, 2003 UT 1, 1104, 63 P.3d 731.
. Id.
. See State v. Archuleta, 850 P.2d 1232, 1248 (Utah 1993) (explaining that if a statutory aggravating factor has been improperly considered, "we will determine if ... we can still confidently conclude beyond a reasonable doubt that the remaining aggravating circumstances ... outweigh the mitigating [circumstances] and that the imposition of the death penalty was justified and appropriate.").
. To meet the statutory aggravating factor that the murder was committed in an especially heinous or cruel manner, "the State must prove not only serious physical abuse or serious bodily injury before death, but also that any such abuse or injury evidence a mental state materially more depraved or culpable than that of most other murders and the physical abuse or injury must be qualitatively and quantitatively different and more culpable than that necessary to accomplish the murder." Kell, 2002 UT 106, 156, 61 P.3d 1019 (alterations omitted) (internal quotation marks omitted). In this case, the jury heard testimony that Ms. Bott was a seventy-two-year-old woman who suffered a severe beating, choking, and a stab wound to her face. The evidence of Ms. Bott's profound internal injuries, external injuries, and her age supports the conclusion that the jury did not err in finding that the murder was especially heinous or cruel.
. To meet the statutory aggravating factor that the murder was committed in the course of an attempt to commit forcible sexual abuse, the State must prove that the defendant attempted to "touch[] the anus, buttocks, or any part of the genitals of another ... or otherwise take[ ] indecent liberties with another ... with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person, without the consent of the other." Uram Cope § 76-5-404(1). Although the Utah Code does not define what conduct qualifies as "tak[ing] indecent liberties with another," we have applied the doctrine of ejus-dem generis and interpreted this phrase to mean activities of the "same magnitude of gravity as that specifically described in the statute." State ex rel. J.L.S., 610 P.2d 1294, 1296 (Utah 1980). And, in considering whether conduct constitutes an indecent liberty, the Utah Court of Appeals has stated that, the fact finder "must consider the totality of the facts," including "the nature of the victim's participation," "the duration of the defendant's acts," "the defendant's willingness to terminate his conduct at the victim's request," ''the relationship between the victim and the defendant," and "the age of the victim." State v. Balfour, 2008 UT App 410, ¶ 15, 198 P.3d 471 (internal quotation marks omitted).
In this case, the jury heard testimony that Ms. Bott's underwear had been torn off her body, and that she had an abrasion on her hip. And the medical examiner testified that the abrasion could have been caused by the act of tearing her
. See Menzies II, 889 P.2d at 405 ("[The various facts of the crime that ... do not rise to the level of ... statutory [aggravating factors] could still have been considered.").
. Ura Cope § 76-3-207(2)(a)(D).
. Id. § 76-3-207(2)(b).
. Again, these aggravating factors are that the homicide was committed in the course of an aggravated robbery and in the course of an aggravated burglary. See id. § 76-5-202(1)(d).
. See infra Parts IV.C.2 & 4.
. See supra Part IV.A.
. See Arguelles, 2003 UT 1, € 104, 63 P.3d 731.
. Urax Cope § 76-3-207(2)(a)(ii).
. 749 P.2d at 1259.
. Id.
. Id. at 1260.
. Id.
. Id.
. The State presented Ms. McClean's granddaughter's testimony because Ms. McClean had passed away by the time of Mr. Maestas's penalty phase hearing.
. See State v. Dodge, 564 P.2d 312, 313 (Utah 1977) (noting that where a defendant challenges the introduction of evidence, he bears the burden to demonstrate that the evidence was prejudicial).
. To be inflammatory, evidence must stir the passions of the jury, such that their anger or indignation overcomes their ability to make a reasoned decision. See Boyle v. Christensen, 2011 UT 20, ¶ 18, 251 P.3d 810 ("[Clomments meant to inflame passion or prejudice in the jury would be improper because they divert the jury from its duty to base its verdict on the evidence presented.").
. As discussed in Part IV.C.2.c., however, we conclude that there was sufficient evidence for the jury to make these determinations.
. 749 P.2d at 1259.
. Id.
. Id. at 1260 ("[We hold that the sentencing body ... may not rely on other violent criminal activity as an aggravating [circumstance] supporting a death penalty unless it is first convinced beyond a reasonable doubt that the accused did commit the other crime.").
. See id. at 1259-60.
. Bernat v. Allphin, 2005 UT 1, ¶ 11, 106 P.3d 707.
. See Witte v. United States, 515 U.S. 389, 398, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995).
. Id. at 400, 115 S.Ct. 2199 (internal quotation marks omitted).
. Id. (internal quotation marks omitted).
. See, eg., id. at 398, 115 S.Ct. 2199 ("[Wle specifically have rejected the claim that double jeopardy principles bar a later prosecution or punishment for criminal activity where that activity has been considered at sentencing for a separate crime."); Poland v. Arizona, 476 U.S. 147, 156, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986) ("'Aggravating circumstances are not [considered] separate penalties or offenses [during the penalty phase of a capital trial], but are standards to guide the making of [the] choice between the alternative verdicts of death and life imprisonment." (third alteration in original) (internal quotation marks omitted)); Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948) (upholding a recidivism : statute against a double jeopardy challenge because the enhanced punishment imposed for the later offense "is not to be viewed as either a new jeopardy or an additional penalty for the earlier crimes," but instead as "a stiffened penalty for the latest crime").
. See, e.g., State v. Howell, 707 P.2d 115, 118-19 (Utah 1985) (concluding that it was appropriate for a sentencing judge to consider evidence that the defendants sexually abused their children, even though the defendants were convicted only on charges of physical child abuse); see also Witte, 515 U.S. at 397, 115 S.Ct. 2199 ('Traditionally, sentencing courts have not only taken into consideration a defendant's prior convictions, but have also considered a defendant's past criminal behavior, even if no conviction resulted from that behavior." (alteration omitted) (internal quotation marks omitted)).
. See infra 1334.
. Menzies I, 845 P.2d at 224-25.
. Lafferty II, 2001 UT 19, 1105, 20 P.3d 342.
. Cope § 76-3-207(2)(a)-(b) (emphasis added).
. See Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).
. Id.
. See State v. Johnson, 856 P.2d 1064, 1071 (Utah 1993), superseded on other grounds by Utan Cope § 76-5-406.5(1)(k), as recognized in State v. Hammond, 2001 UT 92, ¶ 20, 34 P.3d 773. In Johnson, we noted that the Due Process Clause "in both the United States and Utah Constitutions requires that a sentencing [body] act on reasonably reliable and relevant information in exercising discretion in fixing a sentence." Id. (internal quotation marks omitted).
. See People v. Banks, 237 Ill.2d 154, 343 IIl. Dec. 111, 934 N.E.2d 435, 461-62 (2010) (providing a list of cases holding that the Confrontation Clause of the U.S. Constitution does not apply to the penalty phase of a capital case and a list of cases holding that the Confrontation Clause does apply to such a case).
. Urtax Conr § 76-3-207(2)(b).
. Kell, 2002 UT 106, 152, 61 P.3d 1019 ("If [any] potential error is not prejudicial, we need not reach the constitutional questions.").
. See infra T1 301-02.
. State v. Brown, 948 P.2d 337, 343 (Utah 1997) (internal quotation marks omitted).
. Id. (alteration omitted) (internal quotation marks omitted).
. Mr. Maestas contends that certain portions of the witnesses' testimony constituted victim impact evidence because some of their statements went beyond a description of his past conduct. But because we conclude that the statements were not prejudicial, we need not decide whether they constituted victim impact evidence.
. See Kell, 2002 UT 106, 152, 61 P.3d 1019 (explaining that "if [a] potential error is not prejudicial, we need not reach the constitutional questions"). Although we need not consider the merits of Mr. Maestas's state constitutional challenges in this case, we do not foreclose the possibility of future challenges to the admissibility of victim impact evidence under the Utah Constitution. Indeed, we have yet to resolve the question of whether victim impact evidence is admissible under our state constitution.
. Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) ("A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated."). The holding in Payne overruled parts of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), which held that the Eighth Amendment barred victim impact evidence. Payne, 501 U.S. at 829-30 & n. 2, 111 S.Ct. 2597.
. See Urax Const. art. I, § 28.
. See, eg., State v. Ott, 2010 UT 1, ¶ 24 n. 3, 247 P.3d 344 (concluding that it was not necessary to address the state constitutional claims because the victim impact evidence at issue violated the federal constitution); Arguelles, 2003 UT 1, ¶ 123 n. 26, 63 P.3d 731 (declining to address the state constitutional claims because of inadequate briefing, but noting that "[wle would welcome an in-depth exploration of this issue in the future"); Kell, 2002 UT 106, ¶¶ 52, 54, 61 P.3d 1019 (declining to address the state constitutional claims because any error was not prejudicial); State v. Honie, 2002 UT 4, ¶ 61 n. 7, 57 P.3d 977 (declining to address the state constitutional claims because the issue was not adequately briefed).
. Kell, 2002 UT 106, ¶ 52, 61 P.3d 1019 (footnote omitted).
. See State v. Jeffs, 2010 UT 49, ¶ 37, 243 P.3d 1250.
. Id. (alteration omitted) (internal quotation marks omitted).
. See Payne, 501 U.S. at 830 n. 2, 111 S.Ct. 2597 {overruling the Court's prior holding in Booth, 482 U.S. at 505-07, 107 S.Ct. 2529, that victim impact evidence is inadmissible under the Eighth Amendment, but leaving intact the Court's holding in Booth that "the admission of a victim family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment").
. Kell, 2002 UT 106, ¶ 54, 61 P.3d 1019; cf. Ott, 2010 UT 1, ¶ 41, 247 P.3d 344 (concluding that the victim impact evidence was prejudicial because "there is a reasonable probability that but for the admission of the ... evidence that addressed [the defendant's] character and the victims' opinions of the appropriate sentence, [the defendant] would have received a more favorable sentence").
. See Kell, 2002 UT 106, % 52 n. 15, 54, 61 P.3d 1019 (holding that victim impact evidence was not prejudicial despite the family's descriptive account of "collaps[ing from grief] during the funeral and halving] to be carried out of the church") (internal quotation marks omitted); cf. Ott, 2010 UT 1, ¶ 44, 247 P.3d 344 (finding the victim impact evidence prejudicial because it "was angry in tone, inflammatory in content and contained messages that [the defendant] was beyond rehabilitation .... and comprised a large portion of the total evidence presented").
. Oft, 2010 UT 1, 140, 247 P.3d 344 (alteration omitted) (internal quotation marks omitted).
. Kell, 2002 UT 106, 115, 61 P.3d 1019 (explaining that, unless an error is structural, "if the reviewing court finds that a constitutional error was harmless beyond a reasonable doubt, it need not reverse").
. The State presented Ms. McClean's granddaughter's testimony because Ms. McClean had passed away by the time of Mr. Maestas's penalty phase hearing.
. The Victim Impact Provision provides for evidence in a capital case concerning "the victim and the impact of the crime on the victim's family." Urag Cope § 76-3-207(2)(a)(iii) (emphases added). Because the provision uses a definite article, allowing for evidence concerning "'the" capital offense, it does not expressly contemplate victim impact evidence for "any" of the defendant's prior crimes. Indeed, we note that other courts have determined that the introduction of victim impact evidence concerning a defendant's prior crimes violates the Eighth Amendment and the Due Process Clause. See, e.g., People v. Dunlap, 975 P.2d 723, 745 (Colo.1999) (en banc) ("Evidence regarding the impact of a capital defendant's prior crimes on the victims of those crimes ... is not admissible because it is not relevant to the actual harm caused by the defendant as a result of the homicide for which he is being sentenced."); People v. Hope, 184 IIl.2d 39, 234 IIl.Dec. 379, 702 N.E.2d 1282, 1288 (1998) ("Payne clearly contemplates that victim impact evidence will come only from a survivor of the murder for which the defendant is presently on trial, not from survivors of offenses collateral to the crime for which the defendant is being tried."); Cantu v. State, 939 S.W.2d 627, 637 (Tex.Crim.App.1997) (en bane) (noting that Payne does not contemplate admission of victim impact evidence from victims of collateral crimes).
. See Kell, 2002 UT 106, ¶ 52, 61 P.3d 1019.
. Mr. Maestas also asserts that the trial court abused its discretion in denying his motion for a mistrial based on Ms. Nelson's testimony. But because we conclude that Ms. Nelson's statements were not prejudicial, we also reject his argument that the trial court should have declared a mistrial on this basis.
. See Kell, 2002 UT 106, ¶¶ 52 n. 15, 54, 61 P.3d 1019 (holding that victim impact evidence was not prejudicial despite the family's descriptive account of "collaps[ing from grief] during the funeral and halving] to be carried out of the church").
. Id. 154.
. See supra 1286 ("[Elvidence of a defendant's past criminal conduct ... provides the jury with important information about the defendant's violent propensities. And it presents the jury with an accurate picture of the defendant's background, history, and character.").
. See supra 1291.
. At this point, Mr. Maestas also asserted that the testimony of Ms. Nelson was improper. But as we have discussed above, we conclude that any error regarding Ms. Nelson's testimony was not harmful. See supra 1312.
. State v. Wach, 2001 UT 35, ¶ 45, 24 P.3d 948.
. Id. (alteration omitted) (internal quotation marks omitted).
. Id. (internal quotation marks omitted).
. Id. (internal quotation marks omitted).
. See Zant v. Stephens, 462 U.S. 862, 886-87 & n. 22, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (citing with approval a Georgia case for the assertion that lack of remorse is an appropriate aggravating circumstance).
. See United States v. Caro, 597 F.3d 608, 627 (4th Cir.2010); id. at 630 (noting that U.S. Supreme Court case law suggests that "considering a defendant's silence" regarding the aggravating circumstance of lack of remorse "may well [be] prohibit{ed]" under the Fifth Amendment).
. See, e.g., id. at 630; United States v. Whitten, 610 F.3d 168, 200-02 (2d Cir.2010) (vacating the defendant's death sentence and remanding for a new sentencing phase because "[the prosecution cited two constitutional elections made by [the defendant]-to go to trial and not to testify-as reasons to reject two of Wilson's offered miti-gators: acceptance of responsibility and remorse," and "then cited the lack of remorse as evidence of an aggravating factor: [the defendant's] future dangerousness").
. Lafferty II, 2001 UT 19, 1105, 20 P.3d 342.
. Urax Cone § 76-3-207(2)(b).
. Johnson, 856 P.2d at 1071, superseded on other grounds by Uran Cove § 76-5-406.5(1)(k), as recognized in State v. Hammond, 2001 UT 92, ¶ 20, 34 P.3d 773.
. See State v. Candedo, 2010 UT 32, ¶ 7, 232 P.3d 1008.
. State v. Young, 853 P.2d 327, 362 (Utah 1993).
. Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion).
. State v. Rothlisberger, 2006 UT 49, ¶ 21, 147 P.3d 1176 ("[Wle interpret the rule to give meaning to all its parts, avoid construing the rule in a way that renders any portion of it superfluous, and interpret the rule so as to maintain its harmony with other court rules related to it." (footnote omitted)).
. State v. McClain, 706 P.2d 603, 607 (Utah 1985).
. Id.
. "We will not make or develop [a defendant's] arguments for him.... [A] reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research." State v. Gomez, 2002 UT 120, ¶ 20, 63 P.3d 72 (internal quotation marks omitted).
. The jury was instructed that, in determining whether to impose the death penalty, it could consider factors "including, but not limited to": (1) "[the nature and circumstances of the crime"; (2) Mr. Maestas's "character, background, history, mental and physical condition"; (3) the "impact of the crime on the victim's family and community"; and (4) "any other facts in aggravation or mitigation of the penalty." Similarly, the jury was instructed, "In determining whether aggravating or mitigating circumstances exist, you may consider all of the evidence produced either by the State or the defendant in this hearing and during the guilt phase of the trial, including testimony and exhibits admitted and presented to you during either proceeding." Further, the jury was instructed that it could return a sentence of death only if it was persuaded beyond a reasonable doubt that the State had established both that "the totality of aggravating circumstances outweighs the totality of mitigating circumstances . in terms of their respective substance and persuasiveness," and that "the imposition of the death penalty is justified and appropriate in this case.
. Ura R. Crim P. 18(e)(10).
. State v. Alvarez, 872 P.2d 450, 454 (Utah 1994) (plurality opinion) (second alteration in original) (citation omitted) (internal quotation marks omitted).
. Lockhart v. McCree, 476 U.S. 162, 173, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (holding that "the Constitution does not prohibit the States from 'death qualifying' juries in capital cases," even "assum{[ing] for purposes of this opinion that the studies [proffered by the defendant] are . adequate to establish that 'death qualification' in fact produces juries somewhat more 'conviction-prone' than 'non-death-qualified' juries").
. Alvarez, 872 P.2d at 455 (Utah 1994) (plurality opinion of Howe, J., joined by Hall, C.J.) (concluding that "[dleath qualifying the jury does not offend [the state] constitutional guarantee" of an impartial jury); id. at 462 (Zimmerman, J., concurring, joined by Stewart, J.) (concluding that, "absent clearer scientific evidence about the effects of death qualification," it is appropriate to "adhere to the result in Young and ... reject ... similar challenge[s]" (citation omitted)); Young, 853 P.2d at 342 (plurality opinion of Hall, C.J., joined by Howe, J.) (concluding that the death qualification process does not violate the Utah Constitution); id. at 414-17 (Zimmerman, J., concurring in part and dissenting in part) (concluding that the studies discussed by the dissent in Young were insufficient to support a conclusion that the death qualification process violates the Utah Constitution); id. at 418 (Stewart, J., concurring in part and dissenting in part) (acknowledging the studies discussed by Justice Durham's partial dissent in Young, but concluding that, with "a sensitive and searching voir dire, conviction-prone persons can be weeded out").
. Alvarez, 872 P.2d at 454 (plurality opinion) (internal quotation marks omitted); see also Young, 853 P.2d at 342.
. Alvarez, 872 P.2d at 454-55 (plurality opinion of Howe, J., joined by Hall, C.J.); id. at 462 (Zimmerman, J., concurring in part, joined by Stewart, J.).
. Id. at 455 (plurality opinion of Howe, J., joined by Hall, C.J.).
. Id. at 454 (quoting Young, 853 P.2d at 342).
. Id. at 455.
. Id. at 462 (Zimmerman, J., concurring in part, joined by Stewart, J.).
. Mr. Maestas also claims that death qualification violates the Eighth Amendment of the U.S. Constitution and article I, section 10 of the Utah Constitution. These constitutional provisions were not specifically referred to in Lockhart, Alvarez, or Young. But Mr. Maestas does not pro
. See Young, 853 P.2d at 386-95 (Durham, J., concurring in part and dissenting in part).
. Id. at 342 (plurality opinion of Hall, C.J., joined by Howe, J.) (concluding that the death qualification process does not violate the Utah Constitution); id. at 414-17 (Zimmerman, J., concurring in part and dissenting in part) (concluding that the studies discussed by the dissent in Young were insufficient to support a conclusion that the death qualification process violates the Utah Constitution); id. at 418 (Stewart, J., concurring in part and dissenting in part) (acknowledging the studies discussed by the dissent in Young, but concluding that, with "a sensitive and searching voir dire, conviction-prone persons can be weeded out").
. Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).
. Loving v. United States, 517 U.S. 748, 755, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996).
. Archuleta v. Galetka, 2011 UT 73, ¶ 60, 267 P.3d 232 ("The claim that Utah's death penalty scheme fails to narrow the class of murders eligible for the death penalty is not a new one .... [and we have] entertained and rejected that claim on multiple occasions."); see also, eg., State v. Arguelles, 2003 UT 1, ¶ 127, 63 P.3d 731; State v. Kell, 2002 UT 106, ¶¶ 58-59, 61 P.3d 1019; State v. Honie, 2002 UT 4, ¶¶ 17, 26-27, 57 P.3d 977; State v. Lafferty (Lafferty II), 2001 UT 19, ¶ 141, 20 P.3d 342; State v. Lovell, 1999 UT 40, ¶ 38, 984 P.2d 382; State v. Holland, 777 P.2d 1019, 1024 (Utah 1989).
. Kell, 2002 UT 106, ¶¶ 58-59, 61 P.3d 1019.
. Young, 853 P.2d at 336-38 (plurality opinion of Hall, C.J., joined by Howe, J.) (holding "that the death penalty under the Utah statutory scheme is constitutional" despite defendant's claim that it "failled) to narrow the class of offenders eligible for the death penalty"); id. at 411-14 (Zimmerman, J., concurring in part and dissenting in part) (concluding that the "Utah death penalty scheme is not invalid under either the state or the federal constitution" and explaining that it would be better for courts "to scrutinize ... statutory aggravating circumstances and their application on a case-by-case basis" than to strike the entire scheme); id. at 418 (Stewart, J., concurring in part and dissenting in part) (concluding that, although "a judicial narrowing of some ... aggravating circumstances may be constitutionally necessary," the death penalty scheme is not unconstitutional).
. See Arguelles, 2003 UT 1, ¶ 127, 63 P.3d 731; Kell, 2002 UT 106, ¶¶ 58-59, 61 P.3d 1019; Honie, 2002 UT 4, ¶¶ 17, 26-27, 57 P.3d 977; State v. Lafferty (Lafferty II), 2001 UT 19, ¶ 141, 20 P.3d 342; Lovell, 1999 UT 40, ¶ 38, 984 P.2d 382.
. Although Mr. Maestas contends that an increase in the number of statutory aggravating factors since Young compels a conclusion that the statute now insufficiently fails to narrow the class of death eligible offenses, he does not explain how the specific aggravating factors contained in the statute result in a death penalty scheme that fails to provide a "meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (White, J., concurring). Further, Mr. Maestas claims that this expanded list of statutory aggravating factors is particularly problematic given the fact that the statute allows "any other facts in aggravation ... that the court considers relevant" to be presented in the sentencing proceedings. See Urax Copz § 76-3-207(2)(a)(iv). We have held, .owever, that, "as the initial narrowing of death-eligible defendants occurs at the guilt phase in Utah's statutory scheme, any expanded consideration of factors at sentencing is constitutional." Honie, 2002 UT 4, 127, 57 P.3d 977.
. See Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Honie, 2002 UT 4, ¶ 37, 57 P.3d 977.
. Honie, 2002 UT 4, 137, 57 P.3d 977.
. Id. I 40.
. Id.
. See Utan Cope § 76-5-202(3)(a).
. Supra Part IIL
. Supra Part IV.A.
. See Urau Cop® § 76-5-202(1).
. Holland, 777 P.2d at 1026.
. Lafferty II, 2001 UT 19, 1121, 20 P.3d 342.
. Honie, 2002 UT 4, ¶ 42, 57 P.3d 977; see also Lafferty II, 2001 UT 19, ¶ 121, 20 P.3d 342.
. In support of this claim, Mr. Maestas also argues that the jury did not understand the meaning of LWOP. We reject this claim, supra Part LD.
. 481 U.S. 279, 291-97, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).
. Id. at 297, 107 S.Ct. 1756.
. Id.
. Id. at 294, 107 S.Ct. 1756.
. Id.
. Id. at 292-93, 107 S.Ct. 1756.
.56896 McCleskey, 481 U.S. at 297, 107 S.Ct.
. Because Mr. Maestas's jury decided to impose the death penalty after about three hours of deliberation, he argues that his jury must have violated constitutional principles in making its sentencing determination. But the fact that the jury deliberated for a relatively short period of time before returning a sentence does not compel an inference that it violated constitutional principles in its decision making. There are many reasons why the jury may have deliberated for that amount of time, including because they felt the aggravating circumstances in this case clearly outweighed the mitigating circumstances.
. See supra T 347 & n. 468.
. State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (second alteration in original) (internal quotation marks omitted).
. Id.
. State v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d 878; see also, e.g., State v. Ellis, 748 P.2d 188, 191 (Utah 1987) ("Because we hold that no substantial errors were committed, the concept of cumulative error does not apply.").