Inmate executed for woman’s killing in 1984

PatriotLedger.com

June 13, 2012

BOISE, IDAHO — The six correctional officers, wearing surgical masks and stationed three to a side like pallbearers, lifted the inmate off the gurney and strapped him to the execution table inside the Idaho state prison on Tuesday. Others attached intravenous lines to Richard Leavitt’s arms and electrodes to the convicted killer’s chest and stomach to measure his breathing and heart rate.

A week ago, no one aside from the prison officials would have seen the state’s lethal injection process in its entirety. But a federal judge ordered it open, siding with more than a dozen Idaho news groups, including The Associated Press, who sued in federal court for access. Those first steps – including the insertion of the IV lines that deliver the lethal chemicals – have become increasingly controversial in recent years as opponents question the efficacy of the lethal drug cocktail and the training of the execution team. Proponents counter that lethal injection is a painless and efficient way to put someone to death.

Four media witnesses watched as the 53-year-old Leavitt was wheeled, strapped to a backboard on a gurney, into the death chamber. They watched as Leavitt was moved to the table and as three members of a medical team inserted IVs into his arms. The inmate spoke with them, though witnesses could not hear the exchanges.

They used a blood pressure cuff to enlarge the veins in his elbows, starting with the right, then the left. They cleaned his arms repeatedly with alcohol wipes to prevent infection – in case the execution was called off at the last minute. A member of the team prodded the inside of Leavitt’s arm, feeling for veins. After a moment, he slipped in the needle, sliding the thin plastic catheter that would deliver the lethal chemicals. The process was repeated on the other side. The team leader placed a hand over the inside of his own elbow, and bent his arm back and forth, to let the executioners watching from another room that Leavitt was ready for the fatal dose of pentobarbital.

Leavitt declined to make a final statement and did not ask to see a spiritual adviser before his execution. He was pronounced dead at 10:25 a.m.

Media groups had argued that Idaho’s practice of hiding this first half of lethal injection executions from view violated the First Amendment rights of the public. Brent Reinke, the state’s prisons chief, said his agency and its execution team made adjustments to comply with the federal court order to open the process. “I am happy with how this turned out today,” said Brent Reinke, the state’s prisons chief, during a press conference. “I am grateful that we have four media witnesses here to tell you what they saw. Our goal was to make this as professional as possible with dignity and respect, and I believe we met that mark.”

Leavitt was convicted in 1985 for stabbing and mutilating 31-year-old Danette Elg. Prosecutors said Leavitt stabbed her repeatedly with exceptional force, and then cut out her sexual organs.

The U.S. Supreme Court rejected his last-minute request to stay the execution, which cleared the way for Idaho to put to death its second inmate in 17 years. In November, Paul Ezra Rhoades died by lethal injection for his role in the slaying of three people in eastern Idaho. Leavitt had maintained his innocence, but former U.S. Attorney Tom Moss noted that several judges examined Leavitt’s case during multiple appeals and none found a reason to justify overturning his death sentence.

“Justice was done today,” said Moss, who prosecuted the case when he served as Bingham County attorney.

Execution: Family's Closure Comes 28 Years Later

By Sadie Babits, Adam Cotterell and Scott Ki - BoiseStatePublicRadio.org

June 13, 2012

Death row inmate Richard Leavitt became the second prisoner in seven months to be executed. He died Tuesday morning at 10:25 by lethal injection. He received sedatives throughout the night and at one point said he was "resolved" as to what was happening. Fellow inmates did not give him a card as they did before Paul Ezra Rhoades was executed in November.

Leavitt was convicted in 1985 for the brutal murder of Blackfoot resident Danette Elg. Her mutilated body was found a year earlier with multiple stab wounds.

Four reporters watched Tuesday’s execution. They noted how quiet it was in the witness room but they also commented afterward about how respectful and professional the execution team was. This was the first execution by lethal injection where witnesses could watch the entire procedure. The Ninth Circuit Court of Appeals ruled Friday that witnesses, including select media, should be allowed to watch the entire process beginning when the inmate is brought into the room. This part of the execution took place behind a curtain in November. The Idaho Department of Correction quickly changed how it handles executions to adapt to the court’s decision. Director Brent Reinke says it was worth legally challenging the media’s request. “In my opinion, it was,” he said. “I think we’ve learned a lot in this process and we took the necessary steps to make sure we had a court order before we proceeded.” Reinke said the department practiced the procedure twice before Tuesday’s execution and took extra measures to conceal the identity of the medical team.

Rebecca Boone is a reporter for the Associated Press and witnessed Leavitt’s execution. “We saw him (Leavitt) being brought in by the escort team,” she recalled. “It was almost like they were pallbearers. There were six carrying the backboard.” Boone says the execution team strapped Leavitt to a table and three members of the medical team inserted IVs into his veins. She says those examples of human interaction between the condemned and his executioners struck her. Boone also noted that the medical team’s faces were concealed behind head gear similar to a burka.

John Funk, a reporter for Nampa’s Idaho Press Tribune also witnessed the execution. Funk says in addition to the reporters and state officials, Elg’s sister Valynn Mathie was there. “While we were waiting for the coroner to come in, after the execution had been carried out, she was kind of nodding silently,” Funk told reporters after the execution. “I mean I don’t know what she was thinking but I kind of interpreted that as kind of a solemn approval for what was going on.”

Mathie and her family issued the following statement after the execution: “We want to express thanks to everyone who has labored faithfully to uphold the laws of Idaho so that justice and retribution may be served. Closure is now possible for those of us who have lived with the horror of Danette's murder constantly overshadowing the joyful memories of her life. As family and friends of Danette we never have to think of Richard Leavitt again. Our memories can now focus on the brief time she was here sharing our lives and the joy of loving her.”

Anti-death-penalty protestors gathered throughout the morning at the state prison complex south of Boise as the execution team carried out the execution order. At the time of Leavitt’s death, about thirty people had gathered outside to read from prayer books and to hold up signs. Many of the protestors said they were Catholic and cited religious and moral reasons for opposing capital punishment.

Jeff Allen was among the protestors. He says his Catholic faith teaches him it’s wrong to kill. But he says when he was young he favored the death penalty. “In my youth I thought ‘an eye for an eye,’ I had that mentality,” Allen said. “That, slowly over time as I grew deeper in my faith, has changed. It all boils down to: all life is precious. And the way I live out my faith is doing everything I can to protect it.”

Idaho’s Department of Correction released Richard Leavitt’s body to Boise’s Aclesa Funeral Home for cremation Tuesday afternoon. Leavitt’s mother will collect his ashes Wednesday morning. Now attention turns to when Idaho might conduct another execution. IDOC Director Brent Reinke put it this way. “I would anticipate in the first quarter of next year that may be possible,” he said. “But that would be a good question for Attorney General Wasden.”

Lawrence Wasden isn’t about to guess when that next execution might happen. “It’s not really fair or appropriate for the victims’ families or for the defendants themselves for us to speculate when that may occur,” he said. “There are twelve people currently on death row.” Thomas Creech, Gerald Pizzuto, and Gene Stuart are three of those death row inmates. They were convicted for first degree murder about thirty years ago and appear near the end of their court appeals.

Murderer executed: Leavitt put to death for vicious killing of Danette Elg

IdahoStateJournal.com

Jun 13, 2012

The witnesses heard only silence when Richard Albert Leavitt entered the execution chamber on a gurney, accompanied by five corrections officers in surgical masks and black baseball caps. A few stood at attention while the others secured Leavitt to the table he would die on. He spoke to the officers as they worked, the words inaudible behind the soundproof glass, and they nodded in reply.

Leavitt was convicted in 1985 for stabbing and mutilating 31-year-old Danette Elg of Blackfoot in 1984.

A faint antiseptic, medical scent permeated the room. Leavitt’s fingers and feet fidgeted as though he was nervous, but his face appeared relaxed. Warden Randy Blades and Idaho Department of Corrections Director Brent Reinke stood stony-faced in the chamber, dressed in black suits, supervising without words. The execution team had rehearsed twice over the weekend. They didn’t need step-by-step instructions The silence continued as all but one of the officers left the room with military precision, and a medical team entered the chamber from the opposite side. All three wore royal blue scrubs, full head coverings, surgical masks and safety glasses. Two wore black medical caps, one wore blue. It took several minutes to attach the blood pressure monitor, EKG sensors and IV tubes — all strung through two small holes in the wall opposite the observation room — and then they too turned on their heels and left the room with military poise.

Only then did the silence finally break. Blades asked Leavitt if he’d like to make a final statement, but Leavitt merely shook his head. When Blades asked if he’d like his face covered, Leavitt simply said “no.” That was the only time the witnesses heard him speak. Blades read the death warrant aloud, and Reinke called Attorney Attorney General Lawrence Wasden from the chamber telephone to confirm there was no legal reason to stop the procedure. Wasden wasn’t far away — he entered the observation room and joined the witnesses immediately after Reinke hung up. “Commence the execution, and administer the chemical,” Blades said. Leavitt visibly swallowed and adjusted his head on the table. Over the next several seconds, his breathing became increasingly shallow, then stopped altogether. Then, silence.

For 20 minutes, witnesses, officers and staff waited as Leavitt’s motionless face and hands turned gradually but noticeably gray. Finally, Ada County Coroner Erwin Sonnenburg entered the chamber. He placed a stethoscope on Leavitt’s abdomen, then examined his face with a flashlight. “Warden, I pronounce him at 10:25,” Sonnenburg said. Seconds later, corrections officers escorted the witnesses to the facility’s administration building.

It was the second execution in less than a year witnessed by Post-Register reporter Ruth Brown, and the first she saw from beginning to end. It was a different experience, she said, and an important one. When she watched the execution of Paul Ezra Rhoades last November, the condemned man was already secured to the table when she entered, the IVs already inserted. “I think it’s beneficial to see the medical staff come in and hook him up to IVs,” Brown said after the media debriefing. “People ask me a lot what it’s like to see an execution, because human beings in general are curious, and I use the word ‘clinical’ a lot. It’s not dramatic.”

For KBOI-TV2’s reporter Scott Logan, it was a first. He’s seen violence, he said, when working as a reporter in South America. But never before had he seen death so carefully-planned and orchestrated. The emotional charge was palpable, he said, but the staff’s professionalism throughout left him impressed. Leavitt’s quiet passing, he added, was perhaps a stark contrast to the violent, likely noisy death of Leavitt’s victim Danette Elg. “I was struck by the military precision with which the escort team brought him into this chamber,” Logan said. “And with the way it was carried out. I didn’t see anything to suggest any problems.”

Idaho inmate Leavitt executed; Elg’s family wants tragedy in past

IdahoStatesman.com

June 13, 2012

Despite his previous claims of innocence, Richard “Rick” Leavitt offered no last words to the people who watched his execution Tuesday morning. Leavitt was put to death for brutally stabbing Danette Elg of Blackfoot nearly three decades ago, as witnesses watched Idaho’s entire lethal injection process for the first time.

Idaho Maximum Security Institution Warden Randy Blades led the execution. When Blades asked Leavitt, “Would you like to make a final statement?” Leavitt made no eye contact and said nothing. He simply shook his head twice. Prior to the lethal-drug injection, Blades asked Leavitt if he wanted his eyes covered. “No,” Leavitt said. It was the only word witnesses heard him speak in the execution chamber.

Leavitt’s family visited with him Monday but did not attend the execution at his request. Elg’s sister, VaLynn Mathie, kissed Elg’s stepfather, Richard Bross, on the cheek and held his hand in the witness room of the execution chamber. The pair remained silent and shed no tears. In a statement, the family said they are ready to put the horror and tragedy in the past. Family members say they can now focus their memories on Elg’s life after years of living with the fact her murder overshadowed so much else.

KBOI-TV2 reporter Scott Logan has seen violence, he said, when working as a reporter in South America. But never before had he seen death so carefully planned and orchestrated. The emotional charge was palpable, he said, but the staff’s professionalism throughout left him impressed. Leavitt’s quiet passing, he added, was perhaps a stark contrast to the violent death of Leavitt's victim. “I was struck by the military precision with which the escort team brought him into this chamber,” Logan said.

In contrast to the Nov. 18 execution of serial killer Paul Ezra Rhoades, no last-minute appeals were made or denied the day of Leavitt’s execution. “Justice has been served,” said Tom Moss, a former U.S. attorney in Idaho who prosecuted Leavitt as Bingham County attorney.

About 25 protesters gathered at the Idaho State Correctional Institution, holding signs like “Execute Justice Not People” and reciting prayers. The protesters said they hoped to convey a message that while Leavitt’s 1984 murder of Elg was terrible, the state’s killing of Leavitt should not be tolerated. “This isn’t policy. These are real human beings being killed,” said Mia Crosthwaite, a member of Idahoans Against the Death Penalty. “And these are real human beings doing the killing.” Only one demonstrator came to show support of the death penalty, prison officials said. ’

“The men and women of the Department of Correction who are involved in this process have been preparing for this day since the execution of Paul Ezra Rhoades in November,” Department Director Brent Reinke told reporters. “They are dedicated public servants who must carry out a difficult assignment by meeting the highest standards of professionalism, respect and dignity for all involved. They take no joy in this duty.” Leavitt spent much of the night with his attorneys and requested sedatives several times, according to state prison officials, but made no final statement. “I would say that his mood was one of resolve,” Reinke said.

Which one of the 13 Idaho death row prisoners is next? Officials say it’s impossible to tell. Four inmates have been on death row since the 1980s: Gene Stuart (1982), Thomas Creech (1983), Gerald Pizzuto Jr. (1986) and David Card (1989). All four have an appeal pending in federal courts. LaMont Anderson, a senior deputy with the Idaho attorney general’s office who is the lead counsel on death penalty cases, told the Statesman previously that any judicial ruling on those cases can radically change the timeline. Recently, the 9th Circuit Court of Appeals ruled that new evidence found in Pizzuto’s case isn’t enough to give him another chance at overturning his 1986 murder conviction. Anderson pointed out it took the 9th Circuit Court of Appeals about a year to issue that decision. Attorneys for Pizzuto are still appealing his conviction in U.S. District Court. They say Pizzuto’s conviction and sentence should be dismissed because his low IQ disqualifies him from the death penalty.

Idaho’s longest tenured death row inmate, Lacey Sivak, will be resentenced in Ada County next year for the 1981 murder of Dixie Wilson. The hearing — which in this case is more like a trial — is expected to last at least a month because prosecutors need to re-create a 30-year-old crime for a 2013 jury. The guilt of Sivak is not in question. What the Ada County jury will decide is whether the murder was heinous enough to warrant putting him to death. The 9th Circuit Court of Appeals said the outcome of his 1981 sentencing hearing might have been different if prosecutors hadn’t knowingly presented testimony from one inmate who lied about why he was testifying, and another who admitted that he was a habitual liar. Sivak was briefly scheduled to die by firing squad on Jan. 31, 1984, but the Idaho Supreme Court granted a stay.

Washington state doesn’t have any immediate plans to change its execution policy after a federal appeals court ruled that witnesses should have full viewing access to the process. The ruling struck down a portion of Idaho’s regulations that prevented witnesses, including reporters, from watching executions until after catheters have been inserted into the veins of death row inmates. It could affect execution policies in three other Western states: Arizona, Montana and Washington.

Ruth Brown, Post-Register; Nate Green, Idaho Press-Tribune; John Funk, Idaho Press-Tribune; The Associated Press; and Patrick Orr, Idaho Statesman.

Devastating death scene left by Richard Leavitt in 1984

Former Blackfoot officials remember a murder that caused many nightmares

By Ruth Brown -IdahoStatesman.com

June 10, 2012

If all goes as scheduled, Richard “Rick” Leavitt’s heart will stop beating around 10 a.m. Tuesday. Barring the chance that he wins a last-minute appeal, Leavitt will die by lethal injection for the 1984 murder of Danette Elg, 31, of Blackfoot. After more than a quarter-century, law enforcement, attorneys and family members vividly remember the trial, the victim and the man convicted of killing her. As the execution approaches, they say the events of 1984 and ’85 resonate almost daily.

FINDING DANETTE

When Dennis Hall, a former Blackfoot police officer and coroner, arrived at Elg’s split-level home, he said he found the most devastating killing site he had ever encountered. Her naked body lay caked in blood on the deflated waterbed in her west-facing bedroom. The sun bore down on her, blistering her decomposing body. She had been dead for three days. An inch of water, spilled from the punctured waterbed, covered the floor. Oppressive heat and a nauseating smell filled the North University Avenue home, Hall said. The odor that “burned your mouth” forced some officers to wear fire department masks to muffle the smell while gathering evidence, Hall said Elg had been stabbed 15 times. Her reproductive and sex organs, as well as her rectum, had been cut out of her body. In miserable conditions, Hall and other officers gathered hundreds of blood samples and mounds of evidence. The scene left Hall with nightmares.

ABOUT DANETTE

Her close family and friends called her “Nettie,” according to court records. She worked at the Idaho National Engineering Laboratory, now known as Idaho National Laboratory. She was “generally a likable, friendly, shy person” who would “help anyone with a problem,” according to witness statements. Elg graduated from Blackfoot High School in 1971 and Idaho State University in 1983. She enjoyed skiing, jogging, swimming, camping, hiking and photography. “Danette was a carefree, adventurous and to some degree restless (person),” according to police records. She was a dedicated worker, according to former employers, and enjoyed odd jobs that included chimney sweeping and “fixing up” the houses she lived in. “Danette didn’t want to get married and have children,” according to police records. “She didn’t want the stereotype life.” Members of Elg’s family declined to comment.

TERRORIZING BLACKFOOT

Elg’s murder was Stuart Robinson’s first high-profile case, one he remembers clearly. “We all knew Rick and (knew) what kind of person he was,” said Robinson, the lead investigator on the case. Robinson said Leavitt was a suspect in two or three potential rape cases. But after he threatened the women, they never reported him, Robinson said. “He’s actually a very violent person,” Robinson said. Prior to the murder, Leavitt had a history of strange, violent behavior. Tom Moss served as Bingham County prosecutor for 25 years. During the trial, Moss said Leavitt’s actions were not uncontrolled or acts of impulse. He had strangled small animals for no reason. He had been charged in Custer County with killing two cows with a bow and arrow, according to previous reports.

Leavitt himself reported Elg missing, Robinson said. Leavitt told police that he was concerned for Elg’s safety. Robinson believes that Leavitt could not stand to have his crime go undiscovered and craved the “sensationalism” of the attack. Robinson said the police “pretty well knew” that it was Leavitt who killed Elg, but they waited to arrest him as they built their case. It was a 2,000-hour investigation, according to previous reports, five months that terrorized Blackfoot. “The thing that bothered me the most, as a person, was having to deal with the people of Blackfoot every night when they’d hear a noise,” Hall said. “She was killed and mutilated, and they knew this person’s still out there.”

THE TRIAL

Leavitt’s case is one of four Moss prosecuted in which a judge sentenced the defendant to death. “There’s no doubt in my mind that he is guilty and the judge felt the evidence was convincing enough,” Moss said. The main thing that tied Leavitt to the scene was that his blood type was found on Elg’s shorts, Hall said. Police said Leavitt cut himself while stabbing Elg, whom Moss called a “very athletic woman.” He said that if Leavitt were to attempt to stab her, “he’d have a fight on his hands.” After the murder, Leavitt went to the emergency room to have a cut on his hand stitched. Leavitt said he cut it on a fan, but police later determined that the fan would not make that kind of cut, Moss said. Moss also said Elg had reported to police that a male she thought to be Leavitt had tried to break into her home. She was killed the next day.

Testimony presented a stark portrait of Leavitt. His ex-wife, Kelly Schofield, testified that she sometimes accompanied him on hunting trips. She discussed one occasion in which he shot a doe and dragged it back to the vehicle where she sat. She said he was unaware of her presence. “He was sticking the knife in (the doe’s) genitalia, pulling and pushing and turning it,” Schofield said. When Leavitt became aware of her, Schofield testified, he told her that he wanted to see how the reproductive organs worked. Prosecutors also said that within days of the murder, Leavitt contacted Jess Montague, an ambulance attendant, and asked how long it would take for a body to start smelling. Psychologist David Groberg testified that Leavitt could not be rehabilitated and “is liable to commit the same acts he committed before.” Leavitt was found guilty on Sept. 25, 1985, and then-7th District Judge H. Reynold George sentenced him to death on Dec. 19, 1985. “Atrocious and heinous are not strong enough words to describe the depravity of the crime,” George said at the time. “... It is the solemn judgment of this court that you, Richard Leavitt, shall be sentenced to death.”

LEAVITT’S APPEALS

For nearly 28 years, Leavitt, 53, has maintained his innocence. He has made several appeals. Each time, his death sentence and conviction were eventually upheld. In 1989, the Idaho Supreme Court affirmed Leavitt’s conviction but sent the case back to district court for resentencing. On Jan. 25, 1990, Judge George again sentenced him to death. The Supreme Court affirmed that sentence in 1991. Leavitt filed an appeal to the U.S. Supreme Court this year, but on May 14 the court declined to hear it. In a May 25 plea for a clemency hearing, Leavitt wrote: “I did not murder Danette Elg. I am deeply sorry that she is dead, that she died a violent death, and that her family and friends have also had to suffer her loss. “But I recently took and passed a polygraph test which found that I was being truthful when I said I did not stab her or mutilate her body, and that I was not present when someone else did.” Polygraphs cannot be accepted into evidence in Idaho. The Commission of Pardons and Parole denied Leavitt’s request for a commutation or a clemency hearing. He has an appeal pending with the 9th Circuit Court of Appeals.

LEAVITT’S MOTHER

Marjorie Leavitt believes her son is not guilty. The polygraph test proves it, she said. She fears that Idaho officials will find out “five years down the road” that “oh, gosh, we made a mistake.” She speaks with her son on the phone every day, sometimes several times. “Losing a child is the worst thing in the world,” she said. “We’ve lived with it for 27 years, expecting it at any time. I sympathize with (Elg’s family) so much.” Marjorie Leavitt said her son asked his family not to attend the execution.

COMING TO AN END

Those who put together the case against Leavitt won’t lose any sleep over his death. “Leavitt is an evil person,” said Hall. “I have a heavy heart for the type of death (Elg) had and the terror that went through her mind.” Said Moss: “The thing that stands out most about her is the brutality of the crime. She was a very beautiful young lady who lived by herself and was the victim of a very ugly crime.” Robinson said that without a doubt, Leavitt “would have killed again.” “The Elg family were really good people,” he said. “I remember the fact that Danette’s dad wanted to see her and I wouldn’t let him. I didn’t want him to have that image of his daughter as the last time he saw her.”

State v. Leavitt, 116 Idaho 285, 775 P.2d 599 (Idaho 1989). (Direct Appeal)

Defendant was convicted of first-degree murder by the District Court, Seventh Judicial District, Bingham County, H. Reynold George, J., by jury verdict, and subsequently sentenced to death. Defendant appealed. The Supreme Court, Shepard, J., held that: (1) extensive pretrial publicity did not deny defendant right to fair trial; (2) color photographs of victim's corpse in advanced state of decomposition were admissible; (3) marital privilege did not preclude admission of letter, which defendant allegedly wrote to wife while he was in county jail; and (4) remand was required by the District Court's failure to demonstrate adequate weighing of mitigating circumstances against aggravating factors and failure to adequately consider long-term penal confinement as adequate protection to society. Affirmed in part and reversed in part. Johnson, J., concurred specially and filed opinion. Bistline, J., concurred in part, dissented in part and filed opinion.

SHEPARD, Justice.

This is an appeal from a conviction of first degree murder and a subsequent death sentence. We affirm the conviction of first degree murder, but reverse and remand for further consideration the imposition of the death penalty.

Sometime about July 18, 1984, the victim was brutally attacked in her bed. She suffered up to fifteen separate slash and stab wounds, some of which proved fatal. Her body had been further brutalized by the slashing removal of her sexual organs. The body of the victim was not discovered until three or four days following the killing. It is clear that the killing took place on the victim's waterbed which was punctured and torn by the attacker's knife. The combination of the body decomposition, together with the mixture of body fluids and the waterbed liquid, made impossible any determination of rape as a motive for the killing. The defendant and the victim were both residents of the city of Blackfoot and knew each other. The victim had reported a prowling incident on the night of July 16, 1984, in which she advised the police that the prowler, thought to be the defendant, had tried to enter her home. During the incident the intruder had cut a window screen on the victim's home.

During the interim between the murder and its discovery, the defendant had contacted friends of the victim and also the police, expressing curiosity as to the victim's whereabouts. He claimed that co-workers and the employer of the victim had called him after she failed to appear at work. No such callers were ever located. After the murder and before the body was discovered, the Blackfoot police received two telephone calls stating facts thought to be capable of being only known to the murderer. The caller gave the name “Mike Jenkins” but no person by the name has ever been located. The prosecution asserts that logically the defendant was the only person who could have made the calls because of his detailed knowledge. On July 21 the defendant obtained permission from the victim's parents to enter the home which had been locked and apparently unattended. With the help of the Blackfoot police, entry was made into the house and the body discovered.

The evidence pointing to the defendant as the murderer was largely circumstantial in nature. The defendant sustained a serious incise wound to his left index finger, and on the night of July 18, 1984, he was treated for that wound at the emergency room of the Bingham Memorial Hospital. Blood samples were gathered from the scene of the crime, and serology tests showed that two distinct blood types were present. The victim's blood was type A, and tests of the blood samples from the crime scene reveal that type O blood had been deposited contemporaneously with that of the victim's type A blood. The blood of sixteen suspects was tested and it was the serologist's opinion that the defendant was the only likely source of the type O blood. The defendant initially denied that his blood could be in the victim's bedroom, but later changed his story to admit he had been in the victim's bedroom and suffered a nosebleed, but contended the incident had happened one week prior to the murder. No explanation could be offered as to how his blood became mixed with that of the victim. The defendant asserted that he had cut his finger while in his own home attempting to upright a toppled fan. Laboratory tests of the Leavitt fan concluded that it lacked any blood residue or any indication it had been recently cleaned, and furthermore tests conducted with the fan were unable to duplicate the type of wound on Leavitt's finger. That “fan explanation” was abandoned by the defendant for the first time at trial wherein he admitted that he and his wife had perjured themselves and stated that the injury in fact had been sustained while he was attempting to prevent his wife from attempting suicide.

While confined in jail, the defendant wrote a letter to his wife containing specific instructions involving her future testimony. That letter was discovered and confiscated during a routine inspection of the jail. At trial the court ruled that the letter had been properly seized and it was used for impeachment purposes during the testimony of the defendant's wife, and further used to impeach defendant's testimony as inconsistent statements. At trial two witnesses testified to events offered to show the defendant's alleged morbid sexual curiosity, and his frequent possession and use of knives. The defendant's former wife testified that Leavitt had been observed excising and then playing with the female sexual organs of a deer. It was noted that the killer of the victim here had similarly mutilated the body by removing sexual organs from it during the fatal attack. The former mistress of the defendant testified that the defendant displayed a hunting knife prior to their engaging in sexual intercourse, which testimony suggested that the defendant used knives to increase his satisfaction during sexual intercourse.

Since the instant case involves a conviction of first degree murder and the imposition of the death penalty, we have carefully reviewed the record for any indication of prejudicial error occurring at trial, regardless of whether or not error has been specifically asserted by the defendant.

It is first asserted that the defendant was denied his right to a fair trial because of the extensive pretrial publicity given to the murder. We agree that Blackfoot is a relatively small community in which there would be wide knowledge of such a brutal murder, and that the crime in fact was widely reported. The defendant broadly asserts that a change in venue must be granted whenever there is widespread publicity regarding a crime. We disagree. The applicable rule has been outlined by this Court in State v. Needs, 99 Idaho 883, 890, 591 P.2d 130 (1979): Among the factors which this Court will consider in determining whether the criminal defendant actually received a fair trial are affidavits indicating prejudice or an absence of prejudice in the community where the defendant was tried, testimony of the jurors at voir dire as to whether they had formed an opinion of the defendant's guilt or innocence based upon adverse pretrial publicity, whether the defendant challenged for cause any of the jurors finally selected, and the nature and content of the pretrial publicity, and the amount of time elapsed from the time of the pretrial publicity to the trial itself. (citation omitted). Publicity by itself does not require a change of venue. 99 Idaho at 890, 591 P.2d 130.

We have examined the trial court record and conclude therefrom that the pretrial publicity had little if any effect on the potential jurors, and find no indication that potential jurors would prejudge the case. We further note that the record indicates that the defendant failed to object to the jury panel actually seated at trial.

The defendant asserts that his right to a fair trial may have been compromised by the presence of one member of the jury. Late in the trial defendant's counsel moved to reopen jury voir dire to examine an individual juror with regard to alleged statements by the juror prior to trial. The motion was denied. Defendant does not assert there was any evidence that the juror had formed an opinion as to defendant's guilt or innocence. During voir dire that juror had been examined and specifically stated, “anything that I have heard can be put off.” Defendant's assertions are vague and uncertain, and we conclude that the trial court did not abuse its discretion in denying defendant's motion for additional voir dire following the seating of the juror. State v. Sanger, 108 Idaho 910, 702 P.2d 1370 (Ct.App.1985). This Court in State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979), stated, “[i]t was not incumbent upon the trial judge to find jurors who were totally ignorant of the facts and issues involved in this case.” We find no indication in the record of any prejudice.

The defendant next asserts that alleged exculpatory evidence was not disclosed to the defendant. That “exculpatory” evidence related to a Blackfoot police dispatcher who had received the “Mike Jenkins” telephone calls. Following voice comparison tests the telephone dispatcher was unable to clearly identify Leavitt as the Mike Jenkins caller. The defendant argues that his rights to a fair trial and due process were prejudiced because the prosecution failed to disclose the inability of the police dispatcher to identify the voice of the caller. Defense counsel moved to reopen defendant's case-in-chief to require the dispatcher to testify as to her alleged opinion of the voice comparisons. The trial court denied defendant's motion on the grounds that the alleged testimony would be a subject for expert testimony. Prior to trial the police dispatcher had made a voice comparison of the “Mike Jenkins” calls, and the defendant's voice as observed during his confinement. The dispatcher had prior to trial given the opinion that she thought the defendant and Mike Jenkins were one and the same person, but that she could not be sure. Therefore, the prosecution did not solicit her opinion at the time of trial. We cannot conclude that the testimony, if required, could be other than inculpatory of the defendant, and the prosecution did not fail to disclose exculpatory evidence. We do not necessarily agree with the trial court if its ruling was based on a perception that only expert witnesses are competent to identify the voices of telephone callers. See State v. Fenley, 103 Idaho 199, 646 P.2d 441 (Ct.App.1982); I.R.E. 701. Nevertheless, we view the error, if any, to be harmless since the purported identity of the caller was not placed before the jury, and the testimony of the telephone dispatcher could only have been prejudicial to some extent to the defendant's case.

The defendant next asserts that the prosecution failed to preserve or disclose certain evidence and hence the defendant's right to due process was violated. It is also asserted that the trial court erred when it denied defendant's motion to exclude the prosecution's evidence of blood sample tests. Defendant argues that had additional blood samples been preserved, tests could have shown that the samples of his blood found in the victim's bedroom were in fact deposited at an earlier time than the victim's blood was deposited. In addition, he asserts that evidence tended to show that the body of the victim may have been mutilated by the cat of the victim. In all, defendant argues that he was denied the opportunity to perform various tests on the corpse of the victim prior to the time it was cremated. Those assertions of the defendant must be considered in the light of other evidence presented at trial. An expert serologist testified that tests showed convincingly that the blood samples had been mixed, thus supporting the conclusion that the two types of blood had been deposited contemporaneously. The pathologist testified extensively regarding the condition of the corpse at the time of the exami nation. There is no doubt as to the cause of death, and the nature of the victim's injuries. We do not accept the bare assertion of the defendant that additional blood samples may somehow have been exculpatory. It is incumbent upon a defendant to demonstrate such exculpatory value. United States v. Scott, 789 F.2d 795 (9th Cir.1986). As to the preservation of the corpse, there is no showing of any evidence to be gained therefrom, and the State has no duty to preserve such. California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). The appellant next argues that the trial court erred in refusing to suppress the testimony of State witness Wycoff. It is argued that the testimony of Wycoff had not been disclosed to the defense prior to trial. The Wycoff testimony involved his experiment to determine whether a particular type of knife may have been used in the slashing of the waterbed sheet found in the victim's home. It is asserted that defendant's preparation for trial was prejudiced by the non-disclosure of the Wycoff testimony prior to trial. The record is clear that the experiment conducted by witness Wycoff did not take place until the course of the trial, and hence no disclosure of that testimony prior to trial was possible. Hence, the pretrial disclosure rules are not applicable. State v. Mosley, 119 Ariz. 393, 581 P.2d 238 (1978); see also State v. Gerdau, 96 Idaho 516, 531 P.2d 1161 (1975). Additionally, even assuming that pretrial disclosure rules somehow do apply, there must be a showing that the late disclosure denied a defendant a fair trial. State v. Smoot, 99 Idaho 855, 590 P.2d 1001 (1978). Here defendant has made no such showing.

The defendant next asserts that the trial court erred in three evidentiary rulings. The defendant first asserts that error was committed when certain color photographs of the victim's corpse in an advanced state of decomposition, were admitted in evidence. Defendant cites State v. Martinez, 92 Idaho 183, 439 P.2d 691 (1968) as authority for his assertion of error. Therein the Court dealt with the need to balance the probative value and relevance of such evidence against resulting prejudice to the defendant. We agree with the Martinez balancing rule. However, in the instant case, although the photographs were admittedly gruesome in nature, clearly they were necessary to show the nature of the crime and the type of wounds inflicted upon the body. The jury is entitled to have an accurate picture of all the circumstances, and although such information may be gruesome in nature it is necessary to make an intelligent fact finding decision. State v. Izatt, 96 Idaho 667, 534 P.2d 1107 (1975). Since the photographic evidence is relevant, there is no objection on the basis that it could be presented in a somehow less graphic form. The State is not obligated to present evidence which has a lesser impact. State v. Rollo, 221 Or. 428, 351 P.2d 422 (1960).

The defendant next contends that the court erred in permitting certain testimony by the defendant's former wife. The trial court permitted that witness to testify to defendant's activities while on hunting trips in removing the sexual organs of game animals. That testimony was admitted on the basis that it was relevant because of the mutilation and removal of the sexual organs of the victim. Defendant argues that I.R.E. 403 required exclusion of that evidence because its probative value is greatly outweighed by its prejudice and tendency to inflame the jury. We disagree. The fact that certain evidence is horrifying and gruesome, is not in and of itself sufficient reason for exclusion. In the instant case the corpse of the victim had been brutalized by the removal of her sexual organs by a person who clearly had certain anatomical knowledge. That evidence tended to indicate that the defendant had a morbid and sadistic interest in sexual organs, had a knowledge of anatomy, a possible motive for the crime, and a modus operandi which tended to identify the defendant as the killer. Certainly that evidence was prejudicial to the defendant, however, almost all evidence in a criminal trial is demonstrably admitted to prove the case of the state, and thus results in prejudice to a defendant. The evidence was probative and the trial court did not err in its ruling as to its admissibility.

It is next asserted that the trial court, in the face of a marital privilege objection, erred in admitting a document obtained from the defendant while he was housed in the county jail. We find no circumstances demonstrating any relevance to marital privilege. Leavitt denied that the document constituted a letter to his wife, and denied any intent to deliver the document to his wife. Rule 405(b) only addresses compelled testimony from a spouse of a privileged communication. Hence, no marital privilege is applicable. Likewise, we find no work product privilege. The document was confiscated during a routinely conducted protective search of jailhouse inmates entering and exiting the facility. Lastly, it is argued that no proper foundation was laid for the admissibility of the document. The State argued admissibility on the basis that the document contained an account of the facts conflicting with that attested to by the defendant under oath. Accordingly, the document was admissible for impeachment purposes. If the facts stated in the document were correct, then clearly the defendant had perjured himself during his testimony. Thus, the document was admissible to impeach the defendant's testimony.

Following trial and conviction, defendant filed his motion for a new trial on the basis that newly discovered evidence indicated a possible mental disease of the defendant. Defendant asserts that such possible mental disease or deficiency may show his inability to premeditate and form any intent to commit murder. A motion for a new trial is directed to the sound discretion of the trial court, and its decision thereon will not be disturbed absent an abuse of discretion. A motion for a new trial based on newly discovered evidence must satisfy the following test: 1) that the evidence is newly discovered and unknown to the defendant at the time of trial; 2) that the evidence is material and not merely cumulative or impeaching; 3) that it will probably produce an acquittal; and 4) that failure to learn of the evidence was due to no lack of diligence on the part of the defendant. State v. Ames, 112 Idaho 144, 730 P.2d 1064 (Ct.App.1986).

The motion for a new trial was denied by the trial court on the basis that the asserted newly discovered evidence was not material. We agree. During all of the original trial proceedings the defendant denied involvement with the killing of the victim. That is a completely different defense than one now asserted which admits the criminal act, but denies culpability on the ground of inability to form the requisite intent. Further, the proffered psychological tests [which were considered by the trial court] indicate that the defendant purportedly suffers from anti-social personality disorder and an intermittent explosive disorder. There is no indication in the proffered evidence that either of those illnesses would have prevented the defendant from forming the requisite intent to murder.

The defendant next contends that he was denied his sixth amendment constitutional right to effective assistance of counsel. All of defendant's asserted deficiencies of counsel deal with disagreements with strategic judgments of his trial counsel. We held in Estes v. State, 111 Idaho 430, 725 P.2d 135 (1986), that such judgments of trial counsel will not be disturbed unless found to be objectively unsound. See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We have reviewed the record as a whole, and it is clear that in the exercise of trial strategy, defense counsel did not always follow defendant's requests. We find no error. Indeed, as acknowledged in defendant's brief on this appeal, trial counsel refused to call two police officers as witnesses for the defense, but only because of counsel's knowledge that their testimony would have been prejudicial to the defendant, and would have made a poor impression on the jury. Even if some of counsel's decisions at trial were erroneous, they must have been so serious as to deprive the defendant of a fair trial. Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986). We hold defendant was not denied effective assistance of counsel.

The defendant next asserts prosecutorial misconduct at trial, arguing that the closing argument of the prosecution was improper. We first note that since no objection was made thereto during the course of final argument, such assertion will ordinarily not be considered on appeal. Nevertheless, we have considered defendant's assertion and examined the record. We note that the trial court excluded the charge of rape from the charges to be read to the jury. Further, we note that it is not misconduct to argue rape as a motive for murder, even though a charge of rape may not be before the jury. State v. Izatt, 96 Idaho 667, 534 P.2d 1107 (1975), wherein the Court noted a jury is entitled to have a full picture of the criminal offense even though uncharged crimes may be mentioned. The ultimate question is whether the prosecutor misrepresented the record, and we hold that there was no such misrepresentation. Finally, we turn to the propriety of the imposition of the death sentence. We begin our inquiry by examining I.C. § 18-4003 which prescribes the degrees of murder. We may immediately eliminate certain subsections of that statute which define first degree murder, i.e., a murder of a peace officer, etc., a murder committed by a person under a sentence for murder, a murder committed by a person incarcerated in a penal institution, and a murder while attempting escape from a penal institution. Likewise, under the record in this case, because of the unusual circumstances, the prosecution was unable to prove, the trial court was unable to find, and this Court is unable to conclude, that the murder fell within the constraints of subsection (d), as committed in the perpetration of arson, rape, robbery, burglary, kidnapping or mayhem. While the record here may be viewed as pointing toward one committed in the course of rape, the record indicates no proof of such beyond a reasonable doubt.

However, there is no doubt that the crime in question here falls within the provisions of I.C. § 18-4003(a), which provides: (a) All murder which is perpetrated by means of poison, or lying in wait, or torture, when torture is inflicted with the intent to cause suffering, to execute vengence, to extort something from the victim, or to satisfy some sadistic inclination, or which is perpetrated by any kind of wilful, deliberate and premeditated killing is murder of the first degree.

Here the record is clear that the murder in question was “perpetrated” with the intent to cause suffering or to satisfy some sadistic inclination. I.C. § 19-2515 sets forth the requirements as to findings constituting mitigating or aggravating circumstances, and defines “statutory aggravating circumstances.” Said statute in subsection (g) thereof defines statutory aggravating circumstances, and requires that “at least one (1) of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed.” We deem that certain of the subsections of (g) may be immediately eliminated as applicable “statutory aggravating circumstances” in the case at bar, i.e.: 1. The defendant was previously convicted of another murder. 2. At the time the murder was committed, the defendant also committed another murder at the same time. 3. The defendant knowingly created a great risk of death to many persons. 4. The murder was committed for remuneration. .... 7. The murder ... was ... one defined by I.C. § 18-4003(b), (c), (d), (e), or (f) ... .... 9. The murder was committed against a former or present peace officer.... 10. The murder was committed against a witness or potential witness....

Hence, we hold that statutory aggravating circumstances, at least one of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed, must be found within the strictures of I.C. § 19-2515(g)(5) or (6), i.e., that the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity, or that the murder exhibited utter disregard for human life. The findings of the trial court in its pronouncement of sentence, as well supported by the record, indicate that the murder was especially heinous, atrocious and cruel, and manifested exceptional depravity. Hence, we hold that at least one of the “statutory aggravating circumstances” was found to exist beyond a reasonable doubt, and that finding of the trial court is supported by the record herein.

I.C. § 19-2515(d) requires that in all cases in which the death penalty may be imposed, the sentencing court shall, after conviction, obtain a presentence investigation and convene a presentencing hearing. Subsection (e) provides that after said investigations and hearings, the court shall make written findings setting forth any statutory aggravating circumstance and set forth in writing any mitigating factors considered. Thereafter, the statute requires that “if the court finds that mitigating circumstances outweigh the gravity of any aggravating circumstance found so as to make unjust the imposition of the death penalty, the court shall detail in writing its reasons for so finding.” As above noted, the record clearly supports the finding of the trial court that the murder was “especially heinous, atrocious or cruel, manifesting exceptional depravity,” within the strictures of I.C. § 19-2515(g)(5). However, we deem it equally clear that while the court made adequate written findings setting forth the statutory aggravating circumstances, the record fails to detail any adequate consideration of the “mitigating factors” considered, and whether or not the “mitigating circumstances” outweigh the gravity of any “aggravating circumstance” so as to make unjust the imposition of the death penalty.

Here the trial court, with adequate factual basis therefore, found that the murder herein was especially heinous, atrocious, cruel and manifested exceptional depravity. The trial court proceeded to consider prior events testified to by another woman, and stated, “who knows, taking the psychological makeup of this defendant, that another life may have been snuffed out. The court makes reference to this to help substantiate the conclusion that there is a propensity to commit murder constituting a continuing threat to society.” Therein the trial court made reference to an event which did not happen, and utilized that speculation to arrive at a conclusion that the defendant herein had a propensity to commit murder, and would constitute a continuing threat to society. We disapprove such a line of reasoning. As indicated above, we do not disagree with the conclusion of the trial court that the instant murder was cruel, inhuman, and depraved. However, such a finding does not discharge the statutory duty imposed upon a sentencing court to consider mitigating factors. Although the “mitigating” factors concerning this defendant were set forth by the trial court, the trial court stated: “It is only that they are as feathers on the scale when balanced against the grossly inhumane act of murder that went beyond all human decency.”

It is clear that the trial court, while detailing the so called “mitigating” circumstances, clearly failed to adequately consider them and weigh them as against any “aggravating” circumstance. We deem the “mitigating” circumstances as set forth by the trial court to be a demonstration that the instant case presents a defendant who is atypical to any that this Court has viewed in the context of a death penalty case. As stated by the sentencing court, the defendant comes from “a law abiding family, and he is presently married; has a child and was steadily employed prior to his arrest. He is a son, a husband, a father who has conducted himself much of the time within the norms of society.” Such a recitation gives us pause. We note that such recitation of the trial court gives the defendant herein considerable benefit of the doubt. The record demonstrates that the defendant shows no remorse or excuse for his acts, but nevertheless at all times has, and continues to maintain complete innocence. The criminal record of the defendant is lengthy, but as noted, he has never prior to the instant circumstances been convicted of a felony. Nevertheless, the presentence report demonstrates the probability that defendant has committed felonious acts of rape and arson. Hence, we surmise the trial court accepted for the sake of argument, a reasonably decent character of the defendant prior to the instant offense.

We view the record before this Court as demonstrating that the trial court considered “and all of these [mitigating factors] would be important mitigating circumstances if the consideration was toward rehabilitation and possible probation.” (Emphasis added.) We do not disagree with the findings of the trial court that the defendant herein is possessed of an “intermittent explosive disorder.” Nor do we disagree with the trial court's characterization of the instant crime as being demonstrably cruel, heinous and depraved. Nor do we disagree with the trial court's conclusion that the defendant has shown no remorse, but indeed has continued to deny any participation and to attempt to manipulate other witnesses or evidence. Nevertheless, we disagree with what we perceive to be the trial court's misperception of the alternatives available to him as a sentencing court. While the defendant's personality and psychological makeup may make the possibility of “rehabilitation and possible probation” non-existent, nevertheless the trial court failed to give adequate consideration of the alternatives which exist between the distant poles of “rehabilitation and possible probation,” or the death penalty. Clearly, alternatives were and are available to a sentencing court, such as a fixed life sentence.

We venture no opinion as to the desirability of the imposition of a penalty less than a death sentence in the instant case. It is sufficient to say that such alternatives do exist in the instant case, and are within the discretion of the sentencing court. On the other hand, it is clear in the instant case, given the circumstances of the crime, that it was especially heinous, atrocious and cruel, and such circumstances may outweigh any mitigating circumstances. Nevertheless, on the present record we hold that the decision of the trial court does not demonstrate an adequate weighing of mitigating circumstances against the aggravating factors. Neither does the record demonstrate that the trial court adequately considered long-term penal confinement as an adequate protection of society, as contrasted with the imposition of the death penalty.

Pursuant to I.C. § 19-2827, we determine that the sentence herein was not imposed under the influence of passion, prejudice or other arbitrary factors; that the evidence supports the finding of a statutory aggravating circumstance (I.C. § 19-2515); and that the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases. For all of the above considerations, we affirm the judgment of conviction of first degree murder, but we reverse the trial court's imposition of the death penalty and remand to the trial court for further consideration in light of this opinion. The trial court is, in its discretion, authorized to convene additional hearings and obtain additional information and/or testimony.

Affirmed in part, reversed in part. BAKES, C.J., and HUNTLEY and JOHNSON, JJ., concur.

JOHNSON, Justice, concurring specially.

I concur with the opinion of Justice Shepard and write only to point out that the trial court appears to have weighed the mitigating circumstances against two aggravating circumstances, collectively instead of separately, contrary to our holding in State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). In its “Pronouncement of Sentence” the trial court found that the murder was “especially heinous, atrocious or cruel, manifesting exceptional depravity” and that Leavitt “exhibited utter disregard for human life.” These are two of the aggravating circumstances listed in I.C. § 19-2515(g). In pronouncing the sentence of death on Leavitt, the trial court stated: “The laws of the sovereign State of Idaho give clear direction to the Court that unless the mitigating circumstances outweigh the gravity of the aggravating circumstances, the defendant shall be sentenced to death.” (Emphasis added.) In Charboneau we held that “the trial court may sentence the defendant to death, only if the trial court finds that all the mitigating circumstances do not outweigh the gravity of each of the aggravating circumstances found and make imposition of death unjust.” 116 Idaho at 153, 774 P.2d at 323. On remand, the trial court should weigh all the mitigating circumstances against each of the aggravating circumstances found, separately, rather than weighing all the mitigating circumstances against all aggravating circumstances found, collectively.

BISTLINE, Justice, concurring and dissenting.

Accepting that there are insufficient votes to reverse and remand for a new trial, then I concur only in the result of the majority opinion which sends this case back for proper resentencing. I agree with Justice Johnson's statement that upon resentencing the trial judge must apply principles enunciated in our recent State v. Charboneau. Otherwise I generally cannot agree with the majority opinion's pronouncements on the following issues: (1) the admission of the photographs of the decomposed body of the victim; and (2) the admission of the testimony of the defendant's former wife regarding the defendant's field-dressing of game animals. A glance at some of the exhibits that the jury had with them during their deliberations and a very quick delving into the transcript of this case makes it all too clear that this was a trial rife with evidence unduly prejudicial to the defendant. Photographs of the victim's decomposed body are the best example of this proposition. At the outset it should be noted that the majority opinion places undeserved reliance upon the brief of the solicitor general in making the following statement: Since the photographic evidence is relevant, there is no objection on the basis that it could be presented in a somehow less graphic form. The State is not obligated to present evidence which has a lesser impact. State v. Rollo [221 Or. 428], 351 P.2d 422 (Ore.1960). Majority Opinion, p. 290, 775 P.2d p. 604.

The State's brief provided us with this statement: When photographic evidence is relevant, it is not a ground for objection that it could be presented in less graphic form. The State is not obligated to rely on evidence having the least impact. See, State v. Rollo [221 Or. 428], 351 P.2d 442 [422] (Ore.1960). This state of affairs would not be objectionable if reliance on the Oregon case was justified-but it is not. A reading of the underlying Rollo opinion reveals no such proposition which the majority opinion, following the solicitor general's lead, has drawn from it.

However, more important is the substantive law relating to the admission of photographic evidence, and the way in which this photographic evidence was handled. The majority opinion on page 290, 775 P.2d on page 604 claims that the photographs were necessary to show the nature of the crime and the type of wounds inflicted upon the victim's body. However, defendant's counsel was prepared to stipulate that the victim was murdered by knife wounds and to every other fact regarding the state of the victim's body when it was discovered. Tr., Vol. 2, p. 314. Thus, where none of the information conveyed by the photographs was at issue, the photographs were not material, but were irrelevant and cumulative. This same information could have been provided by a coroner's testimony.

If the photographs were not relevant because they did not provide evidence of facts at issue, they should have not been admitted. That the photographs are highly inflammatory renders them even less admissible. These photographs were 8 inch by 12 inch color photos of the victim's body in a shocking state of mutilation and decomposition. State's Exhibit No. 23 was a close up view of the victim's rectal area through which the sexual organs had been removed. Others were close up views of neck wounds which allowed partial views of the victim's face. Interestingly, State's Exhibits 4 and 5 were photos of the victim in life. Exhibit No. 4 was a close up full face portrait of the victim; Exhibit No. 5 was a photo of the victim with family members. All of these photos were in the jury room with the jury during their deliberations. It requires no great leap of imagination to picture what must have gone through the jurors' minds as they compared the photos of the victim in happy days with her family members in life as against the horrifying photos of her body in death. Since defendant's counsel was willing to stipulate to any information which the photos could convey, the district court should have recognized that it would be an abuse of discretion to admit these incendiary photos into evidence. It must be remembered that at the time these photographs were admitted in evidence the defendant was an accused person presumed to be innocent. This leads to the question: Was this a fair trial where such inflammatory pictorial evidence was admitted in a trial where there was no question but that murder had been committed, and the issue to be resolved was whether the accused was the perpetrator? This is especially so here, where as the majority itself has noted, the State's case rests on circumstantial evidence.

In passing on the admissibility of the photographs, Justice Shepard properly acknowledges State v. Martinez, 92 Idaho 183, 439 P.2d 691, relied upon by the defendant: “Therein the Court dealt with the need to balance the probative value and relevance of such evidence against resulting prejudice to the defendant. We agree with the Martinez balancing rule.” The next sentence, however, after conceding that “the photographs were admittedly gruesome in nature,” asserts-without explaining why or how-that the photographs “were necessary to show the nature of all the circumstances, and although such information may be gruesome in nature it is necessary to make an intelligent fact finding decision.” Maj. Op., at p. 290, 775 P.2d at p. 604. The statement that the photographs were necessary is sheer ipse dixit which does not include therein any balancing of prejudice versus probative value, which was said to be the rule of Martinez. Moreover, if Martinez included any issue of gruesome photographs having been admitted at trial I am uninformed by reading it. “Martinez was charged with the second degree murder of one Michael Anthony Calborn, a two-year ten-month old infant” who died as a result “of injuries alleged inflicted by (defendant's) repeated kicking and striking the deceased's body.” 92 Idaho at 184, 439 P.2d 691.FN1 On appeal of Martinez's conviction, Justice Spear in authoring the Court's unanimous opinion, noted as to a contention that the photographs were inadmissible, that “they were admitted for the stated purposes of identification, as an aid to the jury in understanding the nature and extent of the injuries, and as probative of implied malice, i.e., that appellant had acted with an abandoned and malignant heart ... The record shows that the trial court carefully considered objections ... for the state's purposes hereinbefore mentioned.” 92 Idaho at 192-193, 439 P.2d 695-696.

FN1. It is of interest to note that a similar infant homicide, State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1986), resulted in a charge of torture murder, a conviction, and a death sentence. Justice Shepard, for a majority, says only as to the admission of the photographs, “that although such information may be gruesome in nature it is necessary to make an intelligent fact-finding decision” (Maj. Op., at p. 290, 775 P.2d at p. 604.) citing State v. Izatt, 96 Idaho 667, 534 P.2d 1107, for the quoted proposition. Izatt in an interesting case, but on four or five readings of it, I marvel at it being cited by the majority for the proposition it is said to support, which is the more remarkable because Justice Bakes who today joins Justice Shepard's opinion, authored Izatt. Neither Izatt nor Rollo substantiate the propositions for which they are offered.

Along the same lines of unnecessary prejudice was the admission of the testimony of the defendant's former wife regarding the defendant's activities while field-dressing game animals. While it may have contained some kernel of relevance concerning the specific type of mutilation of the victim's body in this case, for certain the testimony was highly prejudicial. It allowed the prosecution to portray the defendant as a grotesque deviant, which in the mind of the average juror would lead to the conclusion that defendant was a bad person, and therefore he likely was the person who committed the murder. The majority's statement that the prejudicial effect of this evidence was inconsequential because almost all evidence in a criminal trial is prejudicial to a defendant misses the point. Evidence to obtain a conviction is and is intended to be prejudicial. That is a given. But it should be evidence relating to the crime committed.

As one delves into the record it becomes apparent that the district court was overly kind in allowing the prosecutor to have admitted virtually any evidence which it presented. The defendant's wife was allowed to testify as to the defendant's obsession with knives. Actual knives were allowed to be introduced into evidence, not withstanding that there was no contention that such were murder weapons. These were knives which the defendant happened to own. These knives had absolutely no relevance to the case. Other evidence, on a par with photographs of the victim admitted into evidence included photographs of an anatomically correct life-sized female doll which was graphically altered to demonstrate the victim's wounds. The jury entered upon its deliberation in a jury room reeking of the unfair prejudice from evidence which the prosecution did not need to show that the victim had been murdered, and the defendant may have been the perpetrator.

State v. Leavitt, 121 Idaho 4, 822 P.2d 523 (Idaho 1991). (Direct Appeal After Remand)

Defendant was convicted by jury in the Seventh Judicial District Court, Bingham County, H. Reynold George, J., of first-degree murder and was sentenced to death. Defendant appealed. The Supreme Court, 116 Idaho 285, 775 P.2d 599, affirmed in part, reversed in part, and remanded. On remand, the trial court again imposed death penalty. On appeal, the Supreme Court, Boyle, J., held that: (1) “exceptional depravity” language in aggravating circumstance that murder be “especially heinous, atrocious or cruel, manifesting exceptional depravity” was not unconstitutionally vague; (2) trial court properly weighed all mitigating circumstances against that single aggravating circumstance; (3) death penalty was not excessive or disproportionate to penalty imposed in similar cases; and (4) sentence of death was not imposed under influence of passion, prejudice, or any other arbitrary factor. Affirmed. Johnson, J., concurred and concurred specially and filed opinion. Bistline, J., dissented and filed opinion.

BOYLE, Justice.

In this criminal case we are called upon to determine whether the death penalty was properly imposed upon Richard A. Leavitt. In 1985, Leavitt was convicted of the first degree murder of Danette Elg in Blackfoot, Idaho, and the district court imposed the death penalty. In State v. Leavitt, 116 Idaho 285, 775 P.2d 599 (1989) ( Leavitt I ), this Court affirmed the conviction, the finding of a statutorily defined aggravating circumstance, and that the sentence was not disproportionate or excessive. However, the death penalty sentence was reversed because the district court had failed to adequately weigh the cumulative mitigating circumstances against each aggravating circumstance and, because of circumstances unique to this case, failed to consider alternative sentences. Id., 116 Idaho 285, 294, 775 P.2d 599, 608 (1989).

In Leavitt I, we held: Pursuant to I.C. § 19-2827, we determine that the sentence herein was not imposed under the influence of passion, prejudice or other arbitrary factors; that the evidence supports the finding of a statutory aggravating circumstance (I.C. § 19-2515); and that the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases. For all of the above considerations, we affirm the judgment of conviction of first degree murder, but we reverse the trial court's imposition of the death penalty and remand to the trial court for further consideration in light of this opinion. The trial court is, in its discretion, authorized to convene additional hearings and obtain additional information and/or testimony. Affirmed in part, reversed in part. 116 Idaho at 294, 775 P.2d at 608 (emphasis original).

Upon remand, the district court conducted a sentencing hearing wherein additional evidence was presented. Following the hearing, the district court weighed all the mitigating factors against the single I.C. § 19-2515(g)(5) aggravating circumstance,FN1 contemplated alternative sentencing possibilities and, for a second time, sentenced Leavitt to death. After thoroughly considering the record, we affirm. FN1. I.C. § 19-2515(g)(5) provides “[t]he murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.”

I.

Leavitt argues that the aggravating circumstance set forth in I.C. § 19-2515(g)(5), and found to exist by the district court and by this Court in Leavitt I, is unconstitutionally vague and violates his Eighth Amendment rights. Specifically, Leavitt asserts the language “exceptional depravity” does not provide sufficient direction to the sentencing court as required by Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). We disagree. An Eighth Amendment claim based upon vagueness examines whether the challenged aggravating circumstance, together with any limiting instruction, adequately channels the discretion of the sentencing body in order to prevent the imposition of an arbitrary and capricious sentence. See Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). This Court has previously addressed and upheld the constitutionality of I.C. § 19-2515(g)(5), including the Eighth Amendment vagueness claim presently asserted by Leavitt. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991); State v. Lankford, 116 Idaho 860, 781 P.2d 197 (1989); State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989); State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981). In Osborn, we adopted and applied limiting language applicable to the “exceptional depravity” language in I.C. § 19-2515(g)(5) to ensure this particular aggravating circumstance would be “sufficiently definite and limited to guide the sentencing court's discretion in imposing the death penalty.” 102 Idaho at 418, 631 P.2d at 200.FN2 This language was thereafter upheld as constitutional in Charboneau, 116 Idaho at 152, 774 P.2d at 322, and Pizzuto, 119 Idaho at 771, 810 P.2d at 709.

FN2. In Osborn, we adopted the language set forth by the Nebraska Supreme Court in State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977) cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158, reh. denied, 434 U.S. 961, 98 S.Ct. 496, 54 L.Ed.2d 322 (1977). The court stated: In interpreting this portion of the statute, the key word is “exceptional.” It might be argued that every murder involves depravity. The use of the word “exceptional,” however, confines it only to those situations where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence. Id., 197 Neb. at 566, 250 N.W.2d at 891. In addition, given the Idaho legislature's statutory directive that a defendant be sentenced by a district judge rather than by a jury, Leavitt's reliance upon Godfrey and Maynard is misplaced. In addressing a similar claim, the United States Supreme Court in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511, (1990), recently stated:

Maynard v. Cartwright and Godfrey v. Georgia, however, are distinguishable in two constitutionally significant respects. First, in both Maynard and Godfrey the defendant was sentenced by a jury and the jury either was instructed only in the bare terms of the relevant statute or in terms nearly as vague. Neither jury was given a constitutional limiting definition of the challenged aggravating factor. Second, in neither case did the State appellate court, in reviewing the propriety of the death sentence, purport to affirm the death sentence by applying a limiting definition of the aggravating circumstances to the facts presented.... When a jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process. It is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face. That is the import of our holdings in Maynard and Godfrey. But the logic of those cases has no place in the context of sentencing by a trial judge. Trial judges are presumed to know the law and to apply it in making their decisions. If the Arizona Supreme Court has narrowed the definition of the ... aggravating circumstance, we presume that Arizona trial judges are applying the narrower definition. 497 U.S. at ----, 110 S.Ct. at 3057 (emphasis added) (citations omitted).

In Idaho a defendant in a capital case is sentenced by a district judge presumed to know the law. Therefore, Leavitt's reliance on Godfrey and Maynard is misplaced. We reaffirm our prior decisions and hold that the language of the aggravating circumstance in I.C. § 19-2515(g)(5) is not unconstitutionally vague. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991); State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989); State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981).

II.

Our decision in State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989), and as recently reaffirmed in State v. Rhoades (Baldwin), 120 Idaho 795, 820 P.2d 665 (1991), and State v. Card, S.Ct. No. 18313, slip op. # 130, 1991 WL 183162 (filed Sept. 20, 1991), explain the procedure whereby the sentencing judge must weigh the mitigating factors against each individual aggravating circumstance as required by I.C. § 19-2515. In Charboneau we concluded that a plain reading of I.C. § 19-2515 requires that all mitigating circumstances be weighed against each individual aggravating circumstance and held that a “trial court may sentence the defendant to death, only if the trial court finds that all the mitigating circumstances do not outweigh the gravity of each of the aggravating circumstances found and make imposition of death unjust.” 116 Idaho at 153, 774 P.2d at 323; see also State v. Rhoades (Baldwin), 120 Idaho at 810, 820 P.2d at 680.

In Leavitt I, this Court affirmed, as we do today, the district court's finding that the crime was “especially heinous, atrocious or cruel, manifesting exceptional depravity,” as described in I.C. § 19-2515(g)(5). 116 Idaho at 294, 775 P.2d at 608. At the sentencing hearing on remand, the district court relied solely on I.C. § 19-2515(g)(5) as the only aggravating circumstance in reliance on our holding in Leavitt I. The facts in support of the finding that the crime was “especially heinous, atrocious or cruel, manifesting exceptional depravity” were summarized by the district court in the original sentencing as follows: 1. There were multiple stab wounds inflicted upon the body of the victim, several of which could have been the cause of death. 2. There were multiple slashes which appeared to be wounds inflicted upon a person under attack attempting to ward off the thrust of the knife. 3. As part of the death dealing attack or as a grisly aftermath, there was an anal cutting and removal of certain sexual organs from the nude body of the victim. R., at 21.

At the sentencing hearing on remand, the district court heard additional evidence and considered the following as possible mitigating factors: 1) the State's case against Leavitt was circumstantial; 2) Leavitt suffered or suffers from an intermittent explosive disorder; 3) Leavitt comes from a law abiding family; 4) Leavitt is a father, a husband and a son; 5) Leavitt had been steadily employed; 6) Leavitt has no record of prior felony convictions; 7) there was evidence that Leavitt was a model prisoner; 8) Leavitt was using his time constructively while incarcerated by expressing himself through artistry and poetry. After examining each circumstance, the district court concluded:

The Court has weighed all of the evidence in mitigation of defendant's culpability or blameworthiness in this case and weighed it against the aggravating circumstance which exhibited a heinous, atrocious and cruel murder manifesting exceptional depravity. The mitigating circumstances combined do not outweigh the aggravating circumstance to make the imposition of death unjust. Leavitt asserts that the sentencing court improperly “whittled away” at the mitigating factors so as to render them insignificant and thus failed to properly weigh the mitigating factors and the sole aggravating circumstance. We disagree. As with any test that weighs and balances the merits of opposing considerations, it is paramount that the respective strengths and weaknesses be considered. Here, the record clearly demonstrates that the district court examined potential mitigating factors proffered by Leavitt and noted apparent weaknesses and inconsistencies. We find no error in this process and hold that the trial court properly applied the weighing test as required by our decisions in State v. Charboneau, State v. Rhoades (Baldwin), State v. Card, and I.C. § 19-2515(g)(5). Our review of the nineteen-page written sentencing memorandum filed in the instant case satisfies us that the trial court properly weighed all mitigating circumstances against the single I.C. § 19-2515(g)(5) aggravating circumstance.

III.

In Leavitt I, we directed the district court on remand to consider alternative sentences available to the sentencing court. 116 Idaho at 294, 775 P.2d at 608. Our directive that the district court consider alternative sentences was limited to the unique circumstances of this case only and does not represent an additional element to be considered by the district courts as part of the analysis in death penalty cases. On remand, the sentencing memorandum clearly demonstrates that the district court considered alternative sentences including lifetime confinement, and the sentencing objectives of society such as rehabilitation, protection of society and deterrence. Our review of the record satisfies us that in resentencing Leavitt the district court properly considered sentencing alternatives and did not err nor abuse its discretion in imposing the death penalty.

IV.

Idaho Code § 19-2827(c)(3) requires this Court to determine “whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” In Leavitt I, we previously made that determination and expressly held “the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases.” 116 Idaho at 294, 775 P.2d at 608. Although we reaffirm our prior holdings in Leavitt I, a new death penalty sentence has been imposed and we must examine anew the issue of proportionality on this appeal. In State v. Rhoades (Baldwin), 120 Idaho 795, 820 P.2d 665 (1991), the Court recently reviewed the purpose of the proportionality analysis required by I.C. § 19-2827(c)(3), and our responsibility in that process. Our perusal of the legislative history regarding the proportionality of sentences does not offer much guidance. The Statement of Purpose and the committee minutes for the bill that was eventually passed and codified as I.C. § 19-2827 expressed only a concern that the Idaho statute be updated to reflect recent ruling by the United States Supreme Court:

STATEMENT OF PURPOSE

Only a few years ago, the United States Supreme Court made new “rules” concerning imposition of the death penalty for serious crimes. So that we conformed with this U.S. Supreme Court interpretation of the federal Constitution, the Idaho Legislature enacted in 1973 our present death penalty Sections 18-4003 and 18-4004, Idaho Code . Then, last year, the United States Supreme Court again changed the rules relating to capital punishment-after many states, like Idaho, had acted in response to its previous decision. The Court, in five cases, set forth new, more definitive rules concerning sentencing where the death penalty was sought to be imposed. The purpose of this bill is to codify into Idaho law these present requirements imposed on the states by these most recent United States Supreme Court decisions on capital punishment so that we will conform with this latest expression of the law. There is no mention of proportionality, or any expression by the legislature that we are required to review the proportionality of sentences with a special standard or test. The requirement that the death sentence not be disproportionate to “the penalty imposed in similar cases,” is one of several considerations this Court must examine in each death penalty case. The legislature did not see fit to establish a separate standard for proportionality review of sentences when I.C. § 19-2827 was enacted.

This Court looked at the proportionality of death sentences in State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), and reviewed several cases in which the death penalty had been imposed or could have been imposed. The Court compared the facts of the crimes with the facts of the case they were reviewing to determine whether or not the sentence was disproportionate. This is the procedure that has been followed by this Court. We must do likewise. Rhoades (Baldwin), 120 Idaho at 812, 820 P.2d at 682.

In this case, Richard Leavitt killed Danette Elg by inflicting multiple knife wounds several of which could have been the cause of her death. In addition, there were multiple slashes on part of her body which the trial court found to be wounds inflicted while Elg was under attack attempting to ward off the thrust of Leavitt's knife. Finally, as part of the attack or following her death, Leavitt made an anal cutting and removed certain of her organs. In comparing this crime and this defendant to similar crimes by other similar defendants, the record in this case and the district court's findings and conclusions, we hold that the death sentence is not excessive or disproportionate. FN3. State v. Card, Idaho S.Ct. # 18313, slip op. # 130, 1991 WL 183162 (filed Sept. 20, 1991); State v. Rhoades (Baldwin), 120 Idaho 795, 820 P.2d 665 (1991); State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991); State v. Paz, 118 Idaho 542, 798 P.2d 1 (1990); State v. Lankford, 116 Idaho 860, 781 P.2d 197 (1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990); State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989); McKinney v. State, 115 Idaho 1125, 772 P.2d 1219 (1989); State v. Fetterly, 115 Idaho 231, 766 P.2d 701 (1988); State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985), cert. denied, 479 U.S. 964, 107 S.Ct. 463, 93 L.Ed.2d 408 (1986); State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985), cert. denied, 479 U.S. 989, 107 S.Ct. 582, 93 L.Ed.2d 585 (1986); State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985); State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986); State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985); State v. Bainbridge, 108 Idaho 273, 698 P.2d 335 (1985); State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984); State v. McKinney, 107 Idaho 180, 687 P.2d 570 (1984); State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984); State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984); State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984); State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983); State v. Major, 105 Idaho 4, 665 P.2d 703 (1983); State v. Mitchell, 104 Idaho 493, 660 P.2d 1336, cert. denied, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983); State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982); State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981); State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979); State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979).

V.

Leavitt asserts the weighing of the mitigating and aggravating circumstances was influenced by the passion and prejudice of the sentencing court. In support of this argument, Leavitt asserts the sentencing court improperly referred to photographs of the crime scene more than once, and that this repeated reference shows the sentencing judge was unable to properly balance the mitigating and aggravating circumstances. Leavitt does not argue that it was improper for the sentencing court to view the crime scene photographs. Rather, Leavitt claims the written sentencing decision made several references to the photographs and that this necessarily indicates impermissible passion and prejudice in the sentencing process. In effect, Leavitt claims the sentencing court weighed the mitigating factors with the photographs rather than the statutory aggravating circumstance. We disagree.

We have carefully reviewed the sentencing court's memorandum decision and are satisfied that the sentence imposed was not the product of passion and prejudice, nor was it arbitrarily imposed. The sentencing judge was the same judge who had presided over the trial and original sentencing hearing. He was familiar with the facts of the case which led him, and this Court in Leavitt I, to conclude that the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity. I.C. § 19-2515(g)(5). Although it is possible in some circumstances that graphic photographs could lead to prejudice and passion in the sentencing process, we find no such error in the instant case. The photographs were admitted into evidence at trial and their use at trial was upheld by this Court in Leavitt I, 116 Idaho at 290, 775 P.2d at 604. To make reference at sentencing to the evidence shown in the crime scene photographs and photographs of the victim's body was not error. We have reviewed the record and hold the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor.

VI.

We have independently reviewed the record and conclude an adequate basis for the imposition of the death penalty exists. The sentencing court considered alternative sentences and properly weighed the mitigating factors against the sole aggravating circumstance. The imposition of the death sentence was not influenced by passion, prejudice or other arbitrary consideration, and the sentence is not disproportionate or excessive when compared to similar cases. The imposition of the death sentence is affirmed. Upon issuance of the remittitur, the district court shall set a new execution date.

BAKES, C.J., and McDEVITT, J., concur. JOHNSON, J., concurs in parts I, II, III, V and VI, and specially concurs in part IV.

JOHNSON, Justice, concurring and concurring specially.

I concur in all of the Court's opinion. I write only to explain the basis for my concurrence in part IV, which concerns the proportionality of the death penalty. For reference I refer to the appendix to my opinion in State v. Card, No. 130 (Idaho filed Sept. 20, 1991), in which I summarized the cases I compared there pursuant to I.C. § 19-2827(c)(3) and the decisions of this Court, considering both the crime and the defendant. The cases I find most similar to this one so far as the crime is concerned are: 1. State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985), cert. denied, 479 U.S. 989, 107 S.Ct. 582, 93 L.Ed.2d 585 (1986) (death penalty overturned by this Court as disproportionate). 2. State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 (1986) and 489 U.S. 1073, 109 S.Ct. 1360, 103 L.Ed.2d 827 (1989) (death penalty imposed). 3. State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984) (death penalty imposed). 4. State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984) (death penalty imposed). 5. State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979) (life sentence imposed).

On the basis of this comparison of these cases in which the crime was similar to the murder in this case, I find the death sentence imposed on Leavitt was not excessive or disproportionate. The cases I find most similar to this one so far as the defendant is concerned are: 1. State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985) (death penalty imposed). 2. State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984) (death penalty imposed). On the basis of this comparison of these cases in which the characteristics of the defendant were similar, I find the death sentence imposed on Leavitt was not excessive or disproportionate.

BISTLINE, Justice, dissenting.

A jury convicted Leavitt of first degree murder in September 1985. In December of that year, following a sentencing hearing, the district court imposed the sentence of death. This Court affirmed the conviction. The sentence was vacated on the grounds that the district court failed to adequately weigh the mitigating factors and failed to consider long term confinement as a viable alternative to the death penalty. State v. Leavitt, 116 Idaho 285, 775 P.2d 599 (1989). On remand, the district court considered additional testimony presented by the defendant, his son, and prison guards familiar with the defendant's behavior in prison during a hearing held in December 1989. Thereafter, the district court issued its memorandum decision in January 1990. After reconsidering the mitigating circumstances against the single aggravating circumstance of a murder especially heinous, atrocious or cruel, manifesting exceptional depravity, the sentence of death was again imposed. Also considered, but rejected, was the alternative of incarceration. This Court properly would at this stage vacate the sentence and once again remand for resentencing of the defendant for the reasons detailed as follows:

I. THE PHRASE “EXCEPTIONAL DEPRAVITY” CONTAINED IN I.C. § 19-2515(g)(5) VIOLATES THE EIGHTH AMENDMENT.

Leavitt argues that the phrase “exceptional depravity,” part of the aggravating circumstance I.C. § 19-2515(g)(5), is unconstitutional because “exceptional depravity” does not limit the sentencing court's discretion in any meaningful manner. Leavitt asserts that the phrase “exceptional depravity” describes a mental state, particularly susceptible to subjective interpretation, thus making the decision to impose the death sentence in this case arbitrary. Leavitt argues that the sentencing court was not adequately guided by the aggravating factor, and in support Leavitt points to this sentence from the district court's sentencing decision: “The brand of atrociousness burns deeper and the depravity becomes exceptional.” As was recently stated by the Ninth Circuit Court of Appeals on reviewing an Idaho death sentence: Recently, the Supreme Court announced the process by which we review such a challenge. In Walton v. Arizona, 110 S.Ct. 3047, 3057, the court held: When a federal court is asked to review a state court's application of an individual statutory aggravating or mitigating circumstance in a particular case, it must first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer. If so, then the federal court must attempt to determine whether the state courts have further defined the vague terms and if they have done so, whether those definitions are constitutionally sufficient, i.e., whether they provide some guidance to the sentencer. Creech v. Arave, 947 F.2d 873, 882 (9th Cir.1991). In the course of the Creech opinion the Ninth Circuit court held that aggravating circumstance I.C. § 19-2515(g)(6) was unconstitutionally vague, even when the narrowing construction placed upon that aggravating circumstance by the Idaho Supreme Court was taken into consideration. There appears to be no reason not to follow the Walton example in addressing the constitutionality of (g)(5), so this Court should first determine whether the bare language of the aggravating circumstance is constitutionally firm. If it is not, we should then apply whatever limiting construction to the phrase “exceptional depravity” has been is provided by case law precedent. As the Creech opinion points out, The Supreme Court has found that aggravating circumstances must ‘channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance and that make rationally reviewable the process for imposing a sentence of death.’ Godfrey v. Georgia, 446 U.S. 420, 428 [100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398] (1980) (quotations and footnotes omitted). ‘[T]he channeling and limiting of the sentencer's discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action.’ Maynard v. Cartwright, 486 U.S. 356, 362, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988). Creech, 947 F.2d at 883 (emphasis added).

The phrase “exceptional depravity” restricts the class of murders considered which fall within aggravating factor (g)(5), simply because not all especially heinous, atrocious or cruel murders satisfy the requirement of (g)(5): “The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.” I.C. § 19-2515(g)(5). Only those especially heinous, atrocious or cruel murders that manifest “exceptional depravity” will fall under this aggravating factor. In attempting to discern which especially heinous, atrocious or cruel murders manifest exceptional depravity, and which do not, this Court, the sentencing court or any other court is provided little or no guidance from the bare language of (g)(5). This Court in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981), recognized the inadequacy of (g)(5), and adopted a limiting construction. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies-the conscienceless or pitiless crime which is unnecessarily torturous to the victim. Osborn, 102 Idaho at 418, 631 P.2d at 200, quoting State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). Osborn further limited (g)(5) using a standard taken from the Nebraska court: In interpreting this portion of the statute, the key word is “exceptional.” It might be argued that every murder involves depravity. The use of the word ‘exceptional,’ however, confines it only to those situations where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence. Osborn, 102 Idaho at 418, 631 P.2d at 200, quoting State v. Simants, 197 Neb. 549, 250 N.W.2d 881, 891 (1977), cert. denied,434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158, reh. denied, 434 U.S. 961, 98 S.Ct. 496, 54 L.Ed.2d 322 (1977), overruled on other grounds, State v. Reeves, 234 Neb. 711, 453 N.W.2d 359, 377 (1990).

Thus, a sentencing court, constrained to follow this interpretation of I.C. § 19-2515(g)(5), is instructed that a murder is exceptionally depraved whenever it is found to be a “conscienceless or pitiless” crime which is “unnecessarily torturous to the victim” and also involves conduct which “obviously offend all standards of morality and intelligence.” However, it yet remains impossible to comprehend what unjustified homicides do not offend all standards of morality and intelligence. See State v. Bitt, 118 Idaho 584, 588, 798 P.2d 43, 47 (1990) (“if the statute or ordinance is broad enough to catch everyone, it has no core of circumstances to which it applies and is therefore unconstitutionally vague”). In the words of the federal court Creech opinion, “we fail to see how the aggravating circumstance ... permits ‘the sentencer to make a principled distinction between those who deserve the death penalty and those who do not.’ ” Creech, 947 F.2d at 883 (citation omitted). Because the test adopted from Simants is unconstitutionally vague and does not provide any guidance to the district courts, aggravating circumstance (g)(5) in its present form can no longer be relied upon as a sufficient reason to inflict the death penalty.

Assuming arguendo that the remaining portion of the Osborn limiting instruction (the portion adopted from Dixon ) sufficiently guides the court's in its decision, but see State v. Charboneau, 116 Idaho 129, 171-172, 774 P.2d 299, 341-42 (1989) (Bistline, J. dissenting), cert. denied, 493 U.S. 922, 110 S.Ct. 287, 107 L.Ed.2d 267 (1989) reh. denied 493 U.S. 923, 110 S.Ct. 290, 107 L.Ed.2d 270 (1989), its application to the facts of this case demonstrates that the State did not prove beyond a reasonable doubt that the offense was conscienceless, pitiless and unnecessarily torturous to the victim.FN4 The sentencing court pointed to three facts to support the finding of the aggravating circumstance. First, “[t]here were multiple stab wounds ... several of which could have been the cause of death.”

FN4. Although appellant did not challenge the sufficiency of the evidence as to the aggravating circumstance, the Court is directed by statute to determine “[w]hether the evidence supports the judge's finding of a statutory aggravating circumstance....” I.C. § 19-2827(c)(2). Taken in isolation, this finding does not show that the killing was unnecessarily torturous to the victim. Evidence of multiple stab wounds does not in and of itself set an offense apart from other capital offenses, unless it is shown that the wounds were unnecessary to accomplish the crime. That is, for example, the wounds were inflicted for the sake of inflicting torture itself, and not in the attempt to cause the victim to die. No such evidence of the sort was presented here. In fact, the trial court found that several of the many wounds inflicted could have been the cause of death. If the last of the stab wounds was the one that caused the death, or, if cumulatively the other stab wounds were inflicted with the intent to cause death, it cannot be said the multiple stab wounds were “unnecessarily torturous.”

That same analysis applies to the second fact found by the court that “[t]here were multiple slashes” which appeared to be defensive wounds. As the victim was struggling, the existence of multiple wounds, some of which defensive in nature, does not indicate that the crime was committed in an unnecessarily torturous manner. It does not prove that the force used was more than necessary to kill the victim. Plainly, more force will be required to accomplish the end result where the intended victim is struggling, but that in and of itself does not prove unnecessary force.

Examples of acts “unnecessarily torturous” might be where the victim is subjected to gratuitous physical, sexual, or psychological abuse before death. The fact that it has not been proved that more force was used than was needed to effectuate the criminal intent distinguishes this case from State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985), cert. denied,479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986), where the (g)(5) aggravating circumstance was used in a multiple stab wound murder. In that case, the multiple stab wounds were unnecessarily torturous because the victim's hands and feet were bound by duct tape and he was in no position to defend himself. There was no reason to stab the victim several times in that case. Compared to other (g)(5) cases where the death penalty has been upheld, this case is distinguishable. In State v. Fain, 116 Idaho 82, 774 P.2d 252 (1989), cert. denied, 493 U.S. 917, 110 S.Ct. 277, 107 L.Ed.2d 258 (1990), the defendant kidnapped and sexually abused a nine year old girl. Here, the victim was an adult and was not sexually abused or kidnapped. In State v. Mark Lankford, 116 Idaho 860, 781 P.2d 197 (1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990), the defendant, fully armed with lethal weapons, bludgeoned the victims' skulls in such a brutal manner that the skulls had to be reconstructed by an anthropologist before the cause of death could be determined. The amount of violence here does not begin to approach the gratuitous infliction of torture inflicted in the Mark Lankford case. In State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985), after several instances of abusing a three year old boy, the son of his live-in girlfriend, Stuart finally beat him to death. There was no evidence here that the murder was unnecessarily torturous because it was the end result of a pattern of physical abuse. In State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985) cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 (1986) reh. denied 489 U.S. 1073, 109 S.Ct. 1360, 103 L.Ed.2d 827 (1989), the defendant and a codefendant killed a thirteen year old girl by drowning her, but not until he hand cuffed and raped her. The victim had several, non-fatal, knife wounds including one where her panties had been cut off. Appellant's offense is distinguishable because there was no sexual assault, the victim was not a child and the knife wounds were not inflicted for the purpose of inflicting gratuitous pain as was the case in Beam. In State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984), the defendant beat to death an eight month old baby, the daughter of his female roommate. As in Stuart, the death was the end result of a pattern of abuse towards the child.

Here, the State failed to carry its burden of proving the crime was “unnecessarily torturous.” Absence of any proof that the injuries inflicted to cause the death were more than was necessary to kill the victim, that is, inflicted gratuitously, multiple stab wounds, in and of themselves, do not constitute the (g)(5) aggravating factor.

Finally, there is the finding that appellant “[a]s part of the death dealing attack, or as a grisly aftermath” sexually mutilated the victim. However, when one places aside the revulsion felt towards the act itself, the realization that the court did not find this act was part of the murder is inevitable. That is, the state did not prove that the sexual mutilation occurred as part of the murder. If it was, in fact, “a grisly aftermath,” it cannot be a aggravating circumstance under (g)(5) because “[t]he murder” was not “especially heinous, atrocious or cruel,” rather it was the grisly aftermath. If the legislature had intended that depraved acts occurring after the murder be considered an aggravating circumstance under (g)(5), it would have used the “murder or circumstances surrounding its commission” language found in (g)(6). It did not and we can only surmise the legislature did not intend this type of post-event depravity to be an aggravating circumstance.

In sum, that portion of the Osborn limiting construction taken from State v. Simants is unconstitutionally vague. And even if the remaining portion of the limiting instruction sufficiently guided the discretion of the district court, the aggravating factor so limited has not been proved beyond a reasonable doubt.

II. THE DISTRICT COURT WAS INFLUENCED BY PASSION AND PREJUDICE.

Leavitt's argument that the resentencing was influenced by passion, prejudice and arbitrary factors is based on the fact that the sentencing opinion refers more than one time to the graphic photographs of the victim's body in an advanced state of decomposition. Leavitt asserts that these photos are not the aggravating circumstance that must be weighed against all mitigating circumstances, and that the sentencing judge improperly allowed his reaction to the photos to guide his discretion instead of directing his consideration of the aggravating circumstance as weighed against the mitigating factors. In response, the State argues that merely conclusory allegations of bias are not sufficient to demonstrate that an appellant is entitled to relief on the ground of improper prejudice on the part of the judge. However, a careful review of the district court's decision is convincing that more than mere conclusory allegations are present here. The sentencing court made the following observations concerning the pictures of the deceased in the course of its decision to again impose the death penalty: It became the unpleasant duty of the Court to view the graphic photographs of Danette Elg, the deceased victim in this case. .... Considering the heinous nature of the crime, it is the Court's duty to collectively weigh the mitigating circumstances against the gruesome picture portrayed above to determine whether the mitigating elements make the death sentence unjust. .... It is difficult to conceive of any circumstances that would outweigh the picture presented to the Court of the crime scene. .... To attempt to view this scene leaves one with a disgusting sick feeling. .... Combining all of these weakened redeeming qualities with the defendant's artistic and poetic expression certainly creates a smoke screen around the murder scene, but the heinous and atrocious details can still be seen with some clarity through the smoky vapors. Findings, Conclusions and Order, pp. 21, 22, 31, 32.

It was not error for the court to have viewed the photographs, because the court may properly review all the admitted evidence in determining an appropriate sentence. However, the photographs obviously elicited a strong emotional response from the district court and conceivably may have resulted in an arbitrarily imposed sentence. Ordinarily, this Court is in no position to question the emotional involvement of a sentencing court. But ordinarily we do not see a portrayal of the emotional response such as that which the judge here endured and which is difficult to disregard. This Court is not at liberty to ignore the district court's inability in this instance to divorce subjective emotional responses from a rational and objective consideration of the evidence in mitigation and aggravation. The sentence of death should be vacated and the cause remanded for a resentencing.

State v. Leavitt, 141 Idaho 895, 120 P.3d 283 (Idaho 2001). (PCR)

Background: After defendant's murder conviction and the denial of his first petition for postconviction relief were affirmed, 116 Idaho 285, 775 P.2d 599, and his death sentence was affirmed following remand for resentencing, 121 Idaho 4, 822 P.2d 523, defendant filed motion to correct illegal sentence and second petition for postconviction relief. The District Court, Seventh Judicial District, Bingham County, James C. Herndon, J., denied the motion to correct illegal sentence and granted State's motion to dismiss the petition for postconviction relief. Defendant appealed.

Holdings: The Supreme Court, Eismann, J., held that: (1) statute governing legal challenges to death sentences, and not motion to correct illegal sentence, governed defendant's claim that death sentence violated requirement of Ring v. Arizona that jury, rather than judge, determine aggravating circumstances necessary for imposition of death penalty; (2) Ring did not apply retroactively to defendant's postconviction challenge to death sentence; and (3) doctrine of res judicata barred challenge to death sentence that was raised and rejected on direct appeal. Appeals dismissed.

Leavitt v. Arave, --- F.3d ----, 2012 WL 2086358 (9th Cir. 2012). (Habeas)

Background: After his state-court conviction and death sentence for first-degree murder was affirmed on appeal, 121 Idaho 4, 822 P.2d 523, petitioner sought federal habeas relief. The United States District Court for the District of Idaho, Lynn Winmill, Chief Judge, denied petition. Petitioner moved for relief from judgment. The District Court, Winmill, Chief Judge, 2012 WL 1995091, denied motion. Petitioner appealed.

Holdings: The Court of Appeals held that: (1) petitioner lacked substantial ineffective-assistance-of-trial-counsel claim, as would permit petitioner to pursue claim, despite procedural default, on ground that post-conviction counsel was ineffective in failing to raise claim regarding trial counsel, (2) petitioner lacked good cause for order compelling police department to submit for forensic testing blood samples taken from crime scene, in support of motion for relief from judgment. Affirmed. Reinhardt, Circuit Judge, filed concurring opinion.

PER CURIAM:

Richard Leavitt is a convicted murderer who was sentenced to death by the state of Idaho. We have dealt with his case on two prior occasions. See Leavitt v. Arave, 383 F.3d 809 (9th Cir.2004) ( Leavitt I ); Leavitt v. Arave, 646 F.3d 605 (9th Cir.2011) ( Leavitt II ). Subsequent to our last decision the Supreme Court denied certiorari, ending his habeas suit. Leavitt now seeks relief under Federal Rule of Civil Procedure 60(b), claiming that Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), renders him eligible to pursue ineffective assistance of counsel claims on which he had ostensibly defaulted. In a separate case, Leavitt petitions the district court to order the Blackfoot Police Department to send evidence related to his crime to a lab for forensic testing. The district court denied relief in both cases. Leavitt appeals.

1. 12–35450 ( Martinez Claim). In order to bring a successful Martinez claim, “a prisoner must ... demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one....” Martinez, 132 S.Ct. at 1319. Under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an ineffective assistance claim would require Leavitt to prove his trial attorneys' performance was both “deficient” and “prejudicial” to his defense. “There may be cases where the record is devoid of sufficient information necessary to evaluate whether [post-conviction relief] counsel was ineffective [in failing to raise such a claim] and, as a result, remand under Martinez would be necessary. However, ... that is not the case here.” Sexton v. Cozner, 679 F.3d 1150, 1161 (9th Cir.2012). Leavitt argues that his trial counsel was deficient in failing to object to prosecutorial misconduct at trial. We have previously addressed this claim on the merits and held that, even if one of the prosecutors' actions “deviat[ed] from propriety,” it was “not enough to make any difference in the result.” Leavitt I, 383 F.3d at 835. Therefore, even if trial counsel was ineffective in failing to challenge the prosecutor's actions, no prejudice resulted from such ineffectiveness.

Leavitt also claims his trial counsel should have objected to testimony from Leavitt's former girlfriend that he had once displayed a knife immediately before the two had sex. He admits, however, that we previously found this evidence standing alone to be “harmless.” See Leavitt I, 383 F.3d at 829. Therefore, even if Leavitt's trial counsel was deficient under Strickland when he failed to object, this did not prejudice Leavitt's case.

Leavitt further contends that his trial counsel was deficient when he acquiesced in six reasonable doubt and presumption of innocence instructions that misstated the law. However, we previously reviewed five of the six instructions on the merits and rejected Leavitt's challenges. Leavitt I, 383 F.3d at 821–22. An instruction identical to the only other instruction was found not to be a constitutional violation when read “in the context of the instructions [read in that case] overall.” Rhoades v. Henry, 638 F.3d 1027, 1044–45 (9th Cir.2011); see also Leavitt I, 383 F.3d at 820 (“[R]easonable jurists in 1989 [, the year the Idaho Supreme Court handed down its decision in Leavitt's state case,] would still not have felt compelled by [Ninth Circuit caselaw] to find that [the jury instruction] was constitutional error....”). Leavitt's counsel's failure to object was not deficient under Strickland.

Finally, Leavitt claims his trial attorneys erred by failing to have his expert witness testify that two of the blood samples found together at the scene of the crime had not mixed and thus were not deposited at the same time. “The choice of what type of expert to use is one of trial strategy and deserves a ‘heavy measure of deference.’ ” Turner v. Calderon, 281 F.3d 851, 876 (9th Cir.2002). Leavitt's trial attorneys apparently decided not to call Leavitt's expert to the stand because most of his testimony would have corroborated the government's. Regardless, the failure to introduce the testimony of Leavitt's expert witness doesn't rise to the level of Strickland prejudice, which requires a showing of a “reasonable probability ... [that] the result of the proceeding would have been different” if not for the attorney's errors. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. As the district court stated, “Leavitt has pointed to no other evidence tending to show that a significant amount of time must have elapsed between the deposit of the two blood types on the clothing.” Memorandum Decision and Order, Leavitt v. Arave, No. 1:93–cv–0024, 2012 WL 1995091 (D.Idaho June 1, 2012). And, the state produced other evidence that Leavitt had left his blood at the crime scene at the time of the killing. Id.

2. No. 12–35427 (Testing Claim). Leavitt also asks the district court to compel the Blackfoot Police Department to submit for forensic testing blood samples taken from the crime scene. He concedes that the testing motion “addresses primarily concerns with clemency proceedings.” He argues the district court has jurisdiction to provide discovery in support of his pending Rule 60(b) motion in his habeas case. He has not shown good cause for such a discovery request, however, as he has not explained how the testing that he seeks would substantiate his underlying claim that his trial counsel was ineffective in failing to obtain appropriate testimony from his serology expert.

As to clemency, Leavitt argues that the district court has jurisdiction to grant the testing motion under 18 U.S.C. § 3599(f), so he can use it in support of his state clemency petition. But, section 3599(f) provides for “nothing beyond ... funding power” and doesn't “empower the court to order third-party compliance” with Leavitt's attorneys' investigations. See Baze v. Parker, 632 F.3d 338, 342–43 (6th Cir.2011).

AFFIRMED.

REINHARDT, Circuit Judge, concurring. I am not free to do other than join fully in the court's per curiam opinion affirming the denial of Leavitt's motion for relief from the judgment under Rule 60(b) of the Federal Rules of Civil Procedure. I write separately only to explain my disagreement with the current state of the law which permits the execution of individuals, including Leavitt, on the basis of trials and sentencing proceedings that do not afford them the protections and process that the Constitution requires. In my opinion, it is not good enough that capital defendants are convicted on the basis of instructions that misstate the meaning of reasonable doubt or tell the jury, in violation of the Due Process Clause, that constitutional protections are intended for the benefit of the innocent only. Capital defendants do not, in my view, receive an adequate sentencing hearing when a lawyer fails to follow through on a medical expert's advice that the defendant receive a brain scan in order to determine whether he suffers from an injury or ailment that may fundamentally affect his judgment or his conduct. It is not good enough that we forfeit a capital defendant's legitimate constitutional claims because his lawyers failed to comply with the impenetrable procedural rules designed to make habeas relief unavailable to all but the most fortunate and even to deny such relief regardless of the merits of a defendant's claims if the state judges' erroneous interpretation of the Constitution could have been made by reasonable judges. We are far too willing in capital cases to accept the results of trials that are marked by errors on the assumption that those errors did not influence the jury. As long as we are willing to treat capital punishment as an acceptable form of administering justice in our society, the proper approach, under my view of the Constitution, would be to insist that, as the Supreme Court once said, “Death is different,” and not permit the execution of individuals by the state as a result of proceedings that fail to comply in all respects with the dictates of the Constitution. Error is simply not harmless, nor is it acceptable, when it is part of a process that leads to a state's putting its citizens to death.

The long procedural history of this case reads like a textbook account of the obstacles to justice erected by modern habeas doctrine. In 1996, the district court held that Leavitt's claims regarding the ineffectiveness of his trial and resentencing counsel were procedurally defaulted. In doing so, the district court relied on a rule—recently changed by the Supreme Court—that any ineffectiveness on the part of a petitioner's state post-conviction counsel could not excuse the procedural default of his claims. Four years later, the district court granted a writ of habeas corpus on the basis of an unlawful jury instruction. We reversed the grant of habeas relief on the ground that the jury instruction claim was barred by the non-retroactivity doctrine of Teague v. Lane. In a footnote, we noted that the district court had been wrong to dismiss as procedurally defaulted all of Leavitt's claims as to the ineffectiveness of his trial counsel, but—with almost no analysis—we held that the two non-defaulted claims failed on the merits. We also reversed the district court's ruling that Leavitt's claim concerning the ineffectiveness of his resentencing counsel was procedurally barred, and we remanded for that claim to be heard. On remand, the district court again granted a writ of habeas corpus on the basis that Leavitt's counsel had been constitutionally ineffective. Yet again, we reversed the grant of relief. Now we confront a motion for relief from the judgment that the rules prevent us from granting.

Nearly absent from this litany is any discussion of what ought to be the focus of federal habeas review—whether Leavitt received a fair trial and sentencing proceeding that respected his rights under the Federal Constitution. Instead, the case remained in the federal courts for nearly two decades as the result of a series of disagreements about whether various procedural requirements were or were not satisfied at each of various stages in the state and federal proceedings. Comity has value. The habeas jurisdiction of the federal courts is not unlimited. At some point, however, these uncontroversial premises have been transformed into a set of strictures that prevents all but the most unusual of petitioners—those whose counsel have managed to comply at every turn with the ceaselessly changing and ever expanding series of rules—from presenting the merits of their constitutional claims to any federal court. This harsh and mechanical process undermines the protection of the Great Writ.

Leavitt's trial and sentencing failed, at numerous points, to comply with the Constitution. As we recognized in our first opinion in this case, one of the instructions given to the jury—an instruction “that the presumption of innocence is not intended to aid the guilty-in-fact”—has for at least half a century been recognized by our court as erroneous. See Reynolds v. United States, 238 F.2d 460, 463 (9th Cir.1956). In Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), the Supreme Court held that an unlawful definition of reasonable doubt by a state court violates the Federal Constitution. Because Leavitt had the misfortune to be convicted before Cage was decided, however, his claim was barred by Teague—notwithstanding that by the time his case reached our court, Cage had been the law for a decade and a half. In other words, we told Leavitt, we know that your jury instruction violated the longstanding law of our Circuit, but you lose because the Supreme Court had not yet made clear by the time of your conviction that such a violation by a state court offends the Federal Constitution.

Then there were the multiple instances in which the trial violated Leavitt's rights in ways that we held were not quite bad enough to have changed the outcome. First, although a jury instruction “imposed the burden of proving an alibi on Leavitt, which is clearly wrong,” we found no reasonable likelihood “that this instruction ... caused Leavitt's jury to base his conviction on a degree of proof below that required by the Due Process Clause,” 383 F.3d at 822, or that any reasonable juror “would have bought his alibi,” id. at 833. Second, although it “was arguably improper” for the prosecutor “to comment upon [Leavitt's] exercise of his right to remain silent” at an “arguably ... judicial ... proceeding,” we held that “any error was harmless.” Id. at 828. Third, although any rationale for admitting evidence that Leavitt had displayed a knife during a previous sexual encounter “was pretty thin,” and the rationale for admitting other knives was “[t]hinner still,” we were unwilling to say that “the knife evidence ... had substantial and injurious effect or influence in determining the jury's verdict.” Id. at 829 (internal quotation marks omitted). Fourth, although the prosecutor committed serious misconduct by arguing to the jury that it was “a link in a chain of law enforcement which includes the police, the prosecutor, and the judge,” we did not conclude “that the trial was so infected with unfairness as to be a denial of due process” or that “this deviation from propriety was ... enough to make any difference in the result.” Id. at 834–35. The harmless error doctrine led us to look past numerous violations of the Constitution on the basis of our own judgment, not the jury's, that the evidence against Leavitt was strong.

Next, our second reversal of habeas relief constituted a legal error and worked a serious injustice. As I wrote in dissent from that decision, had Leavitt's counsel on resentencing “made a motion for the MRI examination of his brain that the court-appointed neurologist had recommended,” that “examination would have revealed Leavitt's organic neurological disorder—powerful mitigating evidence that could well have altered the sentencing decision of the trial court.” Leavitt v. Arave, 646 F.3d 605, 617 (9th Cir.2011) (Reinhardt, J., dissenting). That failure “necessarily undermines any reasonable jurist's confidence in the outcome of the sentencing proceeding,” and the majority decision to the contrary “disregard[ed] the controlling law and the compelling facts of this case.” Id. at 626.