Jose Santana appeals from his conviction and sentence for first degree murder and use of a deadly weapon. We affirm.
I.
FACTS AND PROCEDURE
On October 16,1994, at approximately 9:40 p.m., Jose Hernandez was shot in his abdomen with a rifle. A white car and a white van were observed speeding away from the scene. The white van had a “Camionetas Santana” business emblem on its side. 1
Officer Troy Evans of the Nampa Police Department arrived on the scene to find Hernandez still alive. Officer Evans asked Hernandez if he had been shot, to which Hernandez replied, “Yes.” Hernandez was asked what his own name was and he replied, “Santana.” Hernandez was asked who shot him and he said, “Santana.” Hernandez was transported to a local hospital, but died from internal bleeding and organ damage during attempts to save his life. An autopsy of Hernandez revealed that he had cocaine and methamphetamine in his system.
The driver of the white car, Jose Coloca, eventually came forward to tell police that he wаs the driver and that Hernandez had been his passenger. He stated that on that night, they were followed by a white van that flashed its headlights until they stopped. Santana got out of the driver’s side of the van, approached Coloca’s car, engaged Hernandez in a conversation and requested that Hernandez step out of the car. Coloca testified that Santana was wearing a long brown coat, cowboy boots and a cowboy hat. Santana had medium length hair and a moustache. *62 Through his reаr view mirror, Coloca observed Santana and Hernandez engaged in, what appeared to be, a friendly conversation until he heard arguing. Coloca saw Santana reach into the passenger’s side door of the van and pull out what looked like a rifle. Coloca heard a gunshot and Hernandez cry out; he immediately drove away, but watched through his rear view mirror as Santana’s van drove away in the opposite direction.
Michael Krause, a resident of the vicinity of the shooting, heard the gunshot as he was watching television in his home. As Krause ran to the back door, he saw a white van speeding away. Upon exiting through the door, Krause almost ran into a Hispanic man who was wearing a dark colored, medium-length jacket and looked “fearful.” Krause saw the man holding something that was long and rigid close to his body, under his coat. Before trial, Krause picked Santana’s picture out of a valid photo line-up.
Santana was later apprehended in Las Vegas, Nevada. The state thereafter charged Santana with first degree murder, I.C. §§ 18-4001-4003, and use of a deadly weapon, I.C. § 19-2520. Santana entered a plea of not guilty and a jury trial was scheduled to begin on June 17, 1996. On that day, after jury selection had been completed, counsel for both parties met in chambers with presiding Judge Gutierrez to discuss some concerns with the previously conducted voir dire.
During voir dire, potential jurors were asked, “Have any of you, or any members of your immediate family ever been charged with a felony crime?” Juror S.O. did not raise her hand and was eventually passed for cause by the state. Neither party used a peremptory challenge and she was seated on the jury. The jury was sworn. Thereafter, Judge Gutierrez learned that S.O. had not revealed during voir dire that her husband was currently being prosecuted by the state for a felony offense. The state moved to disqualify S.O. for implied bias and the defense objected. The court denied the state’s motion, but reopened voir dire — presumably to allow inquiry into the existence of аctual bias.
The court allowed the parties to further voir dire S.O., who admitted that she knew her husband was being charged with a crime, but did not know what type. She stated that shé was currently separated from him, but admitted that they still lived together with their children. She stated that she did not have any knowledge of the crime itself and that she did not respond to the court’s inquiry the day before because she thought the charge against her husband was not a felony. The court refused to strike S.O. for cause, finding that she could remain impartial. Howevеr, Judge Gutierrez subsequently disqualified himself because of familiarity with members of the victim’s family and the ease was reassigned to Judge Weston.
The state renewed its objection to S.O. based upon implied bias. Santana objected because (1) Judge Gutierrez had already ruled on that motion; (2) S.O. was one of only two Hispanic persons on the jury; and (3) the third Hispanic panel member had already been peremptorily stricken by the state. Judge Weston granted the state’s motion without reviewing S.O.’s prior voir dire testimony stating:
I don’t need additional testimony. I think the fact that you’ve got a juror whose husband at this moment is being prosecuted by the State, I think that’s sufficient and I’m going to excuse her. I am satisfied that this is not an effort to try to put her off because she is Hispanic or has a Hispanic surname. I’m satisfied that the State’s motion not only is based on a prejudice but it’s [sic] a well-taken motion.
The court then seated the sworn alternate juror, selected two more alternates and re-swore the jury panel.
At trial, Santana testified on his own behalf and said that he was at the scene of the shooting on the night in question, but that it was his passenger, Frederico Ponce, who shot Hernandez. Santana testified that he did not approach Coloea’s car; Ponce ran away after he shot Hernandez; and he himself drove away in the van.
During trial, Santana sought to admit the coroner’s report as a public record showing that Hernandez had methamphetamine and cocaine in his system at the time of the *63 shooting, but this evidence was excluded by the district judgе who stated: “I find no [hearsay] exception that would allow it.” During its closing, the state relied on Hernandez’s dying declaration by arguing: “It was Santana who fired the shot ... and we know that because of Mr. Hernandez’s dying declaration.” The state also pursued this point by offering the following line of argument to the jury:
Ms. Cassidy (Santana’s co-counsel) said in her closing argument that Santana didn’t know Hernandez and Mr. Santana himself testified to that. If they didn’t know each other, what did Hernandez do? Just make up a name? Now think about that. He said Santanа shot me and he said it more than once. Santana, Santana. If they don’t know each other, then why would he use the name Santana. What possible explanation is there? And think hard. There isn’t one. There’s no explanation.
The jury subsequently found Santana guilty of first degree murder and use of a deadly weapon. The district court sentenced Santana to an indeterminate life sentence for the first degree murder conviction, as required by I.C. § 18-4004, with twenty-five years fixed, enhanced by a ten-year indeterminate sentencе for the use of a deadly weapon. Santana appeals.
II.
THE DISTRICT COURT ERRED BY STRIKING S.O. FOR IMPLIED BIAS, BUT SUCH ERROR WAS HARMLESS AND DID NOT SUBJECT SANTANA TO DOUBLE JEOPARDY
A. Standard of Review
Where the construction and application of a statute presents pure questions of law, we exercise free review.
Boman v. State,
B. Removing S.O. For Implied Bias and Resulting Harm
Both parties passed S.O. for cause during the jury selection process after initial voir dirе. The empanelled jury was sworn. It then came to the state’s and Judge Gutierrez’s attention that S.O. failed to disclose at voir dire that her husband was currently being prosecuted in Canyon County for a felony, punishable by life in prison, after the panel was specifically asked about such matters. The state, with no peremptory challenges left to exercise, moved that S.O. be removed from the sworn jury panel for implied bias. The judge denied the state’s motion after reviewing I.C. § 19-2020 and finding none of the listed grounds to be aрplicable. Judge Gutierrez, however, allowed the parties to reopen voir dire to further question S.O. to facilitate analysis of any potential actual bias under I.C. § 19-2019(2).
After the parties were allowed to re-question S.O., Judge Gutierrez determined that no actual bias existed and S.O. could remain fair and impartial. This decision was within the sound discretion of the trial court. I.C. § 19-2019;
State v. Hedger,
*64
This error on the part of the trial court, however, was harmless because Santana’s due process rights were not affected. In
Ross v. Oklahoma,
Furthermore, S.O. was only sworn and seated on the jury panel because she failed to adequately respond to the state’s voir dire. The state, not knowing that S.O.’s husband was currently being charged with a felony punishable by life imprisonment, passed her for cause and she was subsequently sworn as part of the seated jury. However, this Court is without doubt that had S.O. properly answered the state’s voir dire question concerning whether any members of her immediate family had ever been charged with a felony crime, the state would have exercised one of its peremptory challenges to remove her from consideration. Moreover, Judge Weston could have exercised his discretion in finding actual bias under I.C. § 19-2019(2) had the issue been properly raised.
Accordingly, evеn though Judge Weston erred by striking S.O. based on implied bias, this did not cause Santana to receive a biased jury. There was no harm to Santana.
C. Double Jeopardy
It is a basic tenet of law that jeopardy attaches at the time the jury is sworn.
State v. Pugsley,
The original jeopardy, which attached to Santana after the jury was first sworn, did not terminate when S.O. was removed, an alternate was seated, new alternates were selected and the new panel was re-sworn. None of these events was of sufficient constitutional significance to terminate the attached jeopardy; Santana was not subjected to double jeopardy.
III.
THE DISTRICT COURT ERRED BY EXCLUDING EVIDENCE OF THE PRESENCE OF COCAINE AND METHAMPHETAMINE IN HERNANDEZ’S SYSTEM AT THE TIME OF HIS DEATH, BUT SUCH ERROR WAS HARMLESS
A. Standard of Review
Decisions concerning the relevancy of evidence are reviewed de novo, but
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other questions concerning the admission of evidence are reviewed for an abuse of discretion.
State v. MacDonald,
B. Discussion
Evidence admitted at trial showed that when Hernandez was asked what his name was, he responded, “Santana.” He responded similarly when asked who shot him. The оfficial coroner’s record showed that Hernandez had cocaine and methamphetamine in his system at the time of his death. When the report was offered by Santana as a public record, the state’s objections were that the report was irrelevant and that it was more prejudicial than probative. The trial court found that the document was relevant, but sua sponte determined that the document was hearsay and did not meet the requirements of any hearsay exception. The court refused to аdmit this evidence of the presence of drugs in Hernandez’s system. This was error for two reasons.
1. Public records
“Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports ... in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities” are not excluded as hearsay. I.R.E. 803(8). This includes “investigative reports by police and other law enforcement personnel” and “factual findings resulting from special investigation of a рarticular complaint, ease, or incident” when offered by an accused in a criminal case. Id.
The instant coroner’s report had the lab report attached, which set forth the State Department of Law Enforcement’s regularly conducted and recorded activity — testing samples submitted by other law enforcement agencies. The lab report was a data compilation made by the state laboratory in Pocatello and is part of the lab staffs duties and regularly recorded аctivities.
State v. Nez,
2. “Opening the door”
At trial, the state questioned the coroner about his investigation in the following manner:
Q: Did you take body fluids?
A: Yes, I did.
Q: What type?
A: Urine.
Q: And do you take possession of that?
A. Yes, I do.
Q: Do you maintain a chain of custody?
A: Yes, I do.
Q: Did you send it to somebody for testing?
A: I sent it to the State lab, forensic lab.
Q: Where would that be located?
A: Pocatello.
Q: Did you receive the sample back?
A: No.
Q: What did you request that the urine be screened for?
A: For alcohol and illegal drugs.
Q: And did Dr. Donnelinger make the actual determination of cause of death?
A: Yes, he did.
State’s Attorney: Thank you. I have no further questions.
The state asked the coroner if he had Hernandez’s urine screened and what it was *66 screened for, but specifically did not ask what the lab results indicated. Subsequently, when Santana sought to admit the result of the lab testing, which indicated that Hernandez had illegal drugs in his system at the time of his death, the state objected, claiming that the report was hearsay and irrelevant.
We conclude that the district court erred, in addition to the way described above, by not permitting the coroner’s report to be entered into evidence after the state led the jury to the edge of revealing the lab’s results. The net result may have induced the jury to impliedly conclude that Hernandez’s urine was free from illegal drugs and alcohol because neither party discussed the results. To borrow a рhrase from other realms of evidentiary procedure, the state “opened the door” and Santana should have been allowed to at least introduce the results of the state lab’s testing to challenge the weight and credibility of Hernandez’s dying declaration.
C. Harmless Error
The issue to be addressed is whether there is a reasonable possibility that exclusion of the lab report, indicating that Hernandez had methamphetamine and cocaine in his system, might have contributed to the conviction of Santana.
Harris,
While we recognize that the state relied on Hernandez’s dying declaration, identifying Santana as the shooter, we conclude that there was sufficient additional evidence supporting the conviction of Santana, such that the error described above was harmless. We further note that while the presence of illegal drugs in Hernandez’s system was relevant, that fact could only have been used to meaningfully impeach his dying declaration that Santana shot him, if Santana could have shown at trial that Hernandez was under the influence of those drugs at the time the declaration was made. However, the state lab’s test results were of no material use to Santana for this purpose because those results were not capable of determining the quantity of drugs in Hernandez’s system or the date of Hernandez’s consumption of the drugs. The report only demonstrated a detectable presence of methamphetamine and cocaine, nothing more. Furthermore, at trial, two of the state’s witnesses who witnеssed Hernandez near the time of his dying declaration, testified that Hernandez did not appear to be intoxicated or high and there was nothing unusual about his manner on the night of the shooting.
The evidence presented at trial supports the conclusion that Hernandez was sober when he made his dying declaration. Therefore, it is not reasonably possible that the exclusion of evidence indicating that drugs were present in Hernandez’s system at the time of his death contributed to Santana’s conviction.
IV.
SANTANA WAS NOT DENIED A FAIR TRIAL BECAUSE OF THE CUMULATIVE EFFECT OF THE ABOVE HARMLESS ERRORS
An aсcumulation of irregularities, each of which in itself might be harmless, may in the aggregate show the absence of a fair trial.
State v. Campbell,
We have identified more than one error occurring at Santana’s trial and found each, standing alone, to be harmless. Based upon our analysis of the fundamentals of due process and аpplication of those principles to the specific facts and circumstances of this ease, we determine that those errors, individually harmless, did not, in the aggregate, deny Santana his constitutional right to a fair trial.
V.
SANTANA’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM IS DISMISSED WITHOUT PREJUDICE
A. Standard of Review
To prevail on a claim of ineffective assistance of counsel, the appellant must
*67
show that counsel’s representation was deficient and that the deficiency was prejudicial.
State v. Roles,
Initially, we note that this ineffective assistance of counsel claim is raised directly on appeal and not in a U.P.C.P.A. application.
Typically, ineffective assistance of counsel claims challenge the information communicated — or not communicated — between the defendant and his trial counsel, as well as other aspects of the attorney’s performance, theories and strategies prior to and during trial. Usually, the trial record does not encompass the facts surrounding such matters so as to allow adequate review of trial counsel’s performance based solely on the trial record. For this reason we hаve previously noted that ineffective assistance is an issue rarely appropriate to a direct appeal from a judgment of conviction; rather it is usually reserved to post-conviction relief proceedings, where a more complete evidentiary record can be developed.
State v. Allen,
We conclude that this appeal is not the proper vehicle to adjudicate Santаna’s claim of ineffective assistance of counsel, based upon the record before us. Accordingly, we decline to reach the issues raised by Santana and thereby risk res judicata effect under the U.P.C.P.A.
VI.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN SENTENCING SANTANA
Where a sentence is within the statutory limits, the appellant bears the burden of demonstrating that it is a clear abuse of discretion.
State v. Hedger,
[A] term of confinement is reasonable to the extent it appears nеcessary, at the time of sentencing, to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case. A sentence of confinement longer than necessary for these purposes is unreasonable.
Such determinations cannot be made with precision. In deference to the discretionary authority vested in Idaho’s trial courts, we will not substitute our view for that of a sentencing judge where reasonable minds might differ. An appellant must show that, under any reasonable view of the facts, his sentence was excessive in light of the foregoing criteria.
*68
Broadhead,
Where an appellant asserts that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record and focus upon the nature of the offense and the character of the offender.
State v. Hernandez,
the minimum period [of confinement] generally will be treated as the probable measure of confinement for the purpose of sentence review. By focusing on this period, we do not wholly disregard the aggregate length of the sentence, nor do we suggest that a prisoner will be entitled to parole when the minimum period has elapsed; but we do recognize that he will be eligible for parole at that time.
State v. Sanchez,
Under I.C. § 18-4004, the maximum penalty for first degree murder is death. Santana’s minimum period of confinement is twenty-five years. Accordingly, Santana must demonstrate that this twenty-five year period was an abuse of the district court’s discretion.
As stated above, Santana senselessly killed Hernandez by shooting him in his abdomen with a rifle and then fled the area. Since this incident, Santana has maintained his innocence and has shown no remorse for his crime. At the sentencing hearing, the court reviewed the goals of sentencing and found that Santana’s “utter disregard for human life” could not be tolerated and that a lengthy term of confinement wаs necessary.
Based upon our review of the complete record in this case, we are unable to say that the district court abused its discretion in sentencing Santana to a unified term of life imprisonment, with twenty-five years fixed, for his conviction of first degree murder and use of a deadly weapon.
VII.
CONCLUSION
The district court’s errors in striking juror S.O. for implied bias and excluding a public record demonstrating the presence of illegal drugs in Hernandez’s system at the time of his dying declaration were harmless. Santana was not subjeсted to double jeopardy and the cumulative effect of the above errors was also harmless. Santana’s conviction and sentence are affirmed. Santana’s ineffective assistance of counsel claim is dismissed without prejudice.
Notes
. Santana ran a business that transported legal Mexican immigrants from Mexico to Idaho and returned Mexican citizens, whether illegal or legal, to Mexico from Idaho.
. Notably, after filing his appeal, Santana filed a motion to augment the record with an affidavit from his trial counsel. The state objected and the motion was denied by the Idaho Supreme Court. This affidavit would likely be admissible in a U.P.C.P.A. proceeding.