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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37107
STATE OF IDAHO,                                                                                      )   2011 Opinion No. 18
)
Plaintiff-Respondent,                                                                                )   Filed: April 8, 2011
)
v.                                                                                                   )   Stephen W. Kenyon, Clerk
)
COREY SKII REID,                                                                                     )
)
Defendant-Appellant.                                                                                 )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Shoshone County.  Hon. Fred M. Gibler, District Judge.
Judgment of conviction and sentences for aiding and abetting in two first degree
murders, affirmed.
Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant.    Dennis A.
Benjamin argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.  Kenneth K. Jorgensen argued.
GRATTON, Chief Judge
Corey S. Reid appeals his judgment of conviction rendered upon a jury verdict for aiding
and abetting in two first degree murders, Idaho Code §§ 18-4001, 18-4003(a), and 18-204.   We
affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On August  4,  2008, Reid, Jon Kienholz, Hiram Wilson, Neil Howard, and Cynthia
Bewick were at a campground at Dobson Pass outside of Wallace, Idaho.   Kienholz shot and
killed Howard and Bewick.    Reid was charged with aiding and abetting in both murders.
Kienholz and Wilson testified against Reid at trial.
According to Kienholz’s testimony, he developed a plan to drive to Bolivia and earn a
living there selling illegal substances.  Reid wanted to go with him because of an upcoming legal
proceeding.   Howard and Bewick, who were dating, also wanted to go because they thought they
had outstanding warrants for their arrest.   The group planned to drive Howard’s vehicle.   On the
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morning of the murders, Kienholz called a friend and arranged to trade marijuana for a pistol.
Reid was in the car and overheard Kienholz’s conversation.   Kienholz dropped off Reid, bought
a .22 caliber pistol, and then returned for Reid.   Reid observed the pistol.   They then picked up
Reid’s girlfriend, Kristen Purtill, and drove to the house where Howard and Bewick were
staying.   It was there that Howard and Bewick told Kienholz that they thought Purtill was going
to turn them in on their warrants.   Kienholz told Reid about this accusation and both Reid and
Purtill became angry.   Kienholz obtained a full box of .22 ammunition.   The group of five drove
to Dobson Pass and stopped at a campsite, almost a mile off of the road, where they started a fire.
Kienholz and Reid decided to take a short trip to town, leaving Purtill, Howard, and Bewick at
the campsite.   However, when Howard got his pocket knife out of the car, Purtill refused to stay.
Kienholz, Reid, and Purtill then left in Howard’s vehicle.   As the three drove away from the
campsite, Reid became angry that Howard retrieved his knife and told Kienholz “We have to kill
them.”  They dropped off Purtill in town and picked up Reid’s cousin, Wilson.  Reid told Wilson
that they were going to kill Howard and Bewick.   The three then returned to Dobson Pass and
parked on the main road.   Wilson retrieved the pistol and Reid retrieved the .22 shells to give to
Kienholz.   The three then walked to the campground and talked about how they would commit
the  murders.    With  the  pistol  hidden  below  Kienholz’s  shirt,  the  three  walked  into  the
campground.   Kienholz talked to Howard while glancing at Reid.   Reid was silently mouthing
the words to Kienholz “Come on, do it.”   Kienholz shot Howard in the head, and then shot
Bewick.   Kienholz and Wilson then dumped the bodies down a hill.  As the three headed back to
the car, Reid removed a number of .22 shells from his pocket and discarded them.   The three
then picked up Purtill and drove to Boise.
According to Wilson’s testimony, when Wilson got in the vehicle with Kienholz and
Reid, Reid told Wilson that they needed to kill Howard and Bewick.   On the drive to Dobson
Pass, Kienholz and Reid talked about how they were going to commit the murders.   When the
vehicle stopped, Reid got the shells out of the glove box, handed Kienholz six shells, and kept a
number in his own pocket in case Kienholz missed.   As the three were waiting outside the
campsite, Reid told Kienholz to just walk into the campsite and shoot them.   The three then
walked into the campsite, and Kienholz talked to Howard.   Wilson did not see Reid mouth any
words to Kienholz.   Kienholz shot Howard once, kicked Bewick, shot her four times, and then
shot Howard again.   Wilson and Kienholz then disposed of the bodies.   On the walk back, Reid
discarded the shells from his pocket.   The group traveled to Boise, where Reid assured Kienholz
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that it had to be done because Howard was going to kill Purtill.   After running out of money,
Wilson returned home and turned himself in to the police.
Prior to trial, a hearing was held on Reid’s motion in limine to exclude photographs of
the victims’ bodies.   The district court excluded photographs taken at the morgue and allowed
some of the photographs taken at the crime scene.   At a second hearing, the State asserted it
possessed 126 photos of the crime scene and the number of photos to be used at trial had already
been reduced.  The State made an offer of proof through the testimony of Detective Morgan as to
each remaining photograph.   Reid objected, claiming the photographs lacked relevance, were
cumulative, and unfairly prejudicial.   The district court excluded a number of the photographs
and at trial the State presented thirty-one photographs from the crime scene.
The jury convicted Reid of aiding and abetting in the first degree murders of Howard and
Bewick.   For sentencing purposes, the State submitted a transcript of a conversation between
Detective Morgan and Ronald Rollins, a prior cellmate of Reid’s, in which Rollins described
conversations with Reid regarding the murders.   The district court imposed concurrent unified
sentences of life with thirty years determinate on each count.  Reid appeals.
II.
DISCUSSION
Reid asserts that his conviction should be overturned because of:                                     (1) erroneous jury
instructions on the elements for aiding and abetting first degree murder; and  (2) erroneous
admission into evidence of graphic photographs of the victims, Exhibits 17, 22, and 27.   Reid
contends that if his conviction is upheld, he should be resentenced because the district court
violated his due process rights  by considering at sentencing the transcript of the Rollins’
interview.
A.                                                                                                    Jury Instructions
Reid argues that the jury instructions given, defining the elements of aiding and abetting
first degree murder, omitted the requirement that Reid share the mental state of premeditation
with Kienholz.   Reid did not object to the instruction below.   Generally, issues not raised below
may not be considered for the first time on appeal.  State v. Fodge, 121 Idaho 192, 195, 824 P.2d
123, 126 (1992).   A narrow exception exists for those issues that rise to the level of fundamental
error.  State v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980 (2010):
If the alleged error was not followed by a contemporaneous objection, it
shall only be reviewed by an appellate court under Idaho’s fundamental error
doctrine.   Such review includes a three-prong inquiry wherein the defendant bears
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the burden of persuading the appellate court that the alleged error:                                    (1) violates
one or more of the defendant’s unwaived constitutional rights; (2) plainly exists
(without the need for any additional information not contained in the appellate
record, including information as to whether the failure to object was a tactical
decision); and (3) was not harmless.   If the defendant persuades the appellate
court that the complained of error satisfies this three-prong inquiry, then the
appellate court shall vacate and remand.
Reid must demonstrate that the alleged jury instruction errors rose to the level of fundamental
error.  As we find the plain-error prong dispositive we need not address the other Perry prongs.
Reid argues the error in the instruction--omission of the element of premeditation--
plainly exists from criminal statutes, jury instructions, and applicable law.   Reid also contends
that the record demonstrates his failure to object was not a tactical decision.   The State contends
that  there  was  no  error,  much  less  plain  error.    The  State  argues  that  whether  or  not
premeditation, as asserted by Reid, is required to convict on aiding and abetting, the jury
instructions were correct.
For an error to plainly exist there must, of course, be a demonstration of error.  Requiring
error to be “plain” is “synonymous with ‘clear’ or, equivalently, ‘obvious.’”  Id. at 225, 245 P.3d
at 977 (quoting United States v. Olano, 507 U.S. 725, 734 (1993)).   It must be shown “the error
is clear under the current law,” id., or as stated by the Ninth Circuit Court of Appeals, whether
the “available authorities provide a clear answer to the question.”  United States v. Thompson, 82
F.3d 849, 855 (9th Cir. 1996).   In addition, there must be no need for additional information
outside the appellate record.   Perry, 150 Idaho at 228, 245 P.3d at 980.   Further, for the error to
be plain there must not be a question as to whether the failure to object was a tactical decision.
Id.  Reid cannot meet this burden of demonstrating plain error.
When  reviewing  jury  instructions,  the  appellate  court  must  determine  whether  the
instructions, as a whole, fairly and adequately present the issues and state the law.   State v.
Hickman, 146 Idaho 178, 181, 191 P.3d 1098, 1101 (2008).   Reid was accused of aiding and
abetting murder, I.C.  §§  18-4001,  18-4003(a), and  18-204.    Idaho Code  §  18-4001 defines
murder as “the unlawful killing of a human being . . . with malice aforethought . . .                   .”   Idaho
Code § 18-4003(a) states:   “All murder . . . which is perpetrated by any kind of willful, deliberate
and premeditated killing is murder of the first degree.”   Idaho Code § 18-204 defines who may
be sentenced as a principal for a crime:
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All persons concerned in the   commission of a crime, whether it be felony
or misdemeanor, and whether they directly commit the act constituting the offense
or aid and  abet in  its commission, or, not being present, have advised and
encouraged its commission, or who, by fraud, contrivance, or force, occasion the
intoxication of another for the purpose of causing him to commit any crime, or
who, by threats, menaces, command or coercion, compel another to commit any
crime, are principals in any crime so committed.
In this case, the following instructions were given that relate to Reid’s claim on appeal.
Instruction 17 stated:
In order for the defendant to be guilty of Count I, Aiding and Abetting
First Degree Murder, the state must prove each of the following:
1.  On or about the 4th day of August, 2008;
2.  In the State of Idaho;
3.  Jon Allen Kienholz, Jr., did without justification or excuse,
4.  Willfully, unlawfully, deliberately, and
5.  With malice aforethought and premeditation,
6.  Kill Neil Howard,1 a human being, and
7.  The Defendant, COREY SKII REID, aided and abetted in the
commission of the crime.
If the State has failed to prove any of the above, then you must find the
defendant not guilty of murder.   If you find that all the above have been proven
beyond a reasonable doubt then you must find the defendant guilty of murder and
decide if the defendant is guilty of first degree murder.
Instruction 23 stated:
All  persons  who  participate  in  a  crime  either  before  or  during  its
commission,  by  intentionally  aiding,  abetting,  advising,  hiring,  counseling,
procuring   another to commit the crime with intent to promote or assist in its
commission  are  guilty  of  the  crime.    All  such  participants  are  considered
principals in the commission of the crime.   The participation of each defendant in
the crime must be proved beyond a reasonable doubt.
Instruction 24 stated:
To be an aider and abettor, one must share the criminal intent of the
principal; there must be a community of purpose in the unlawful undertaking.”2
1                                                                                              Instruction 18 was identical to instruction 17 with Cynthia Bewick as the victim.
2                                                                                              “To be an aider and abettor one must share the criminal intent of the principal; there must
be a community of purpose in the unlawful undertaking.”   State v. Scroggins, 110 Idaho 380,
386, 716 P.2d 1152, 1158 (1985) (quoting State v. Duran, 86 N.M. 594, 526 P.2d 188, 189
(N.M. 1974)).
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Instruction 25 stated:
The law makes no distinction between a person who directly participates
in the acts constituting a crime and a person who, either before or during its
commission,  intentionally  aids,  assists,  facilitates,  promotes,  encourages,
counsels, solicits, invites, helps or hires another to commit a crime with intent to
promote or assist in its commission.  Both can be found guilty of the crime.  Mere
presence at, knowledge of, acquiescence in, or silent consent to, the planning or
commission of a crime is not sufficient to make one an accomplice.
Instruction 26 stated:
If  you  unanimously agree  beyond  a  reasonable  doubt  that  Jon  Allen
Kienholz is guilt of murder and you unanimously agree beyond a reasonable
doubt that the state has proven that the murder was willful, deliberate, and
premeditated, and you unanimously agree beyond a reasonable doubt that the
defendant, COREY SKII REID, aided and abetted in the commission of the
willful,  deliberate,  and  premeditated  murder,  you  must  find  the  defendant,
COREY SKII REID, guilty of Aiding and Abetting First Degree Murder.
If  you  unanimously agree  beyond  a  reasonable  doubt  that  Jon  Allen
Kienholz is guilty of murder but you unanimously agree beyond a reasonable
doubt that the state has not proven that the murder was willful, deliberate, and
premeditated, and you unanimously agree beyond a reasonable doubt that the
defendant, COREY SKII REID, aided and abetted in the commission of the
murder, you must find the defendant, COREY SKII REID, guilty of Aiding of
Abetting Second Degree Murder.
Instruction 24 and Instruction 25 are taken from Idaho Criminal Jury Instructions 312 and
311, respectively.  This Court has stated:
The pattern ICJI instructions are presumptively correct.   State v. Cuevas-
Hernandez, 140 Idaho 373, 376, 93 P.2d 704, 707 (Ct. App. 2004).   The Idaho
Supreme Court approved the pattern jury instructions and has recommended that
the trial courts use the instructions unless a different instruction would more
adequately, accurately, or clearly state the law.  Id.
State v. Ruel, 141 Idaho 600, 602, 114 P.3d 158, 160 (Ct. App. 2005).
Reid claims there was error because the jury was not instructed that it was required to
find that Reid shared the mental state of premeditation with Kienholz.   Reid acknowledges that
the jury instructions required Kienholz to have “acted with premeditation.”  The jury instructions
also required Reid to have the  “intent to promote or assist in  [the crime’s] commission,”
(Instruction 25), and to share Kienholz’s criminal intent.   However, he argues that requiring the
jury to find that he acted with intent to promote or assist in the crime and to share Kienholz’s
criminal intent does not include and falls short of requiring a finding that Reid also share
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Kienholz’s premeditation.  Consequently, Reid asserts that the instructions did not require him to
have “acted with the mental state of premeditation,” which he contends was error.
As  the  State  contends,  the  jury  instructions  were  appropriate  under  Scroggins  and
consistent with the Idaho Criminal Jury Instructions, which are presumptively correct statements
of the law.   Whether required or not, the jury was, in fact, told in Instruction 24 that the State
must prove that Reid shared Kienholz’s mental state by requiring Reid to have “shar[ed] the
criminal intent” of Kienholz such that Reid and Kienholz had a “community of purpose in the
unlawful undertaking.”   The referenced criminal intent and community of purpose are identified
in Instruction 26 requiring the jury to find that Kienholz “willfully, unlawfully, deliberately, and
with malice aforethought and premeditation kill[ed]” the victims.
Reid’s attempt to parse premeditation from criminal intent, and, particular to the aider
and abettor context, community of purpose in the unlawful undertaking, is without merit.   The
jury instruction stating that Kienholz must have “willfully, unlawfully, deliberately, and with
malice aforethought and premeditation kill[ed]” the victims embodies the articulation of criminal
intent under the applicable law.   The jury was instructed that “[t]o be an aider and abettor, one
must share the criminal intent of the principal.”   In addition, the jury was instructed that there
must have been a  “community of purpose in the unlawful undertaking” between Reid and
Kienholz.  Further defining this intent and purpose, the jury was admonished that “mere presence
at, knowledge of, acquiescence in, or silent consent to, the planning or commission” of the crime
was not enough.    Only if he  “intentionally aids, assists, facilitates, promotes, encourages,
counsels, solicits, invites, helps or hires another to commit a crime with intent to promote or
assist in its commission,” could Reid be guilty.   The jury instructions were not erroneous, let
alone plainly so.
B.                                                                                                     Photographs
Reid  contends  the  trial  court  erred  in  admitting  three  photographs  of  the  victims,
Exhibits 17, 22, and 27.   He argues that any probative value which they had was substantially
outweighed by inflammatory effect.   Reid asserts that he offered to stipulate to all facts upon
which the photographs may bear and, consequently, any potential relevance was eliminated.
Reid further claims that the district court abused its discretion, under I.R.E. 403, in determining
that the probative value of the photographs was not outweighed by their prejudicial effect.
We review questions of relevance de novo.   State v. Raudebaugh, 124 Idaho 758, 764,
864 P.2d 596, 602 (1993).   A lower court’s determination under I.R.E. 403 will not be disturbed
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on appeal unless it is shown to be an abuse of discretion.  State v. Enno, 119 Idaho 392, 406, 807
P.2d 610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct. App. 1989).
Prior to trial, in an effort to undercut any relevance of the photographs, Reid offered to
stipulate:                                                                                            (1) that on or about the 4th day of August 2008; (2) in Shoshone County, Idaho;
(3) Jon Allen Kienholz, Jr., willfully, unlawfully, deliberately, and with premeditation and with
malice; (4) killed and murdered Neil Howard and Cynthia Bewick.   He argued that because he
was only contesting whether he had the intent to aid Kienholz in the murders, the photographs of
their bodies had no relevance.  The State objected and the trial court rejected Reid’s offer.
It is generally accepted that a prosecutor need not accept a defendant’s stipulation to
elements of a crime.  State v. Hokenson, 96 Idaho 283, 286, 527 P.2d 487, 490 (1974); California
v. Scheid, 939 P.2d 748, 756 (Calif. 1997); see also Old Chief v. United States, 519 U.S. 172,
189 (1997).  Although Old Chief held that a prosecutor must accept a stipulation to a defendant’s
status as a convicted felon, the Court recognized the general rule that prosecutors need not accept
stipulations and stated:
Evidence . . . has force beyond any linear scheme of reasoning, and as its pieces
come together a narrative gains momentum, with power not only to support
conclusions  but  to  sustain  the  willingness  of  jurors  to  draw  the  inferences,
whatever they may be, necessary to reach an honest verdict.
Old Chief, 519 U.S. at 187.  Our Supreme Court stated:
the state must be allowed to offer any relevant evidence in the showing of its case
that  does  not  expose  the  defendant  to  unnecessary  prejudice.  The  offer  of
stipulation by the appellant is merely an offer and need not be accepted. To decide
otherwise would allow the defendant the option of directing the state's case
through the use of timely stipulation.
Hokenson, 96 Idaho at 286, 527 P.2d at 490.
The State and the trial court were not required to accept Reid’s stipulation.   Thus, the
State was entitled to present relevant evidence that Kienholz murdered the two victims and
dumped their bodies.   Requiring a prosecutor to accept a defendant’s stipulation would replace
persuasive, concrete evidence with a neutral statement from the court.   The trial court did not
abuse its discretion in refusing the stipulation and the fact of the offer to stipulate does not
change the analysis of the relevance of the photographs.
The photographs were relevant to issues which the State was required to prove at trial.
While Reid complains that the photographs are minimally relevant to his defense issues, the
photographs were relevant to the manner in which the victims died, the time of death, and
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corroboration of the co-conspirators’ testimony.   In a murder trial where the defendant appealed
the admission of photographs that depicted the victim with her throat cut, the Idaho Supreme
Court stated:
The trial court has the discretion to admit into evidence photographs of the victim
in a homicide case as an aid to the jury in arriving at a fair understanding of the
evidence, as proof of the corpus delecti, the extent of the injury, the condition of
the body, and for their bearing on the question of the degree and atrociousness of
the crime.   The fact that the photographs depict the actual body of the victim and
the wounds inflicted on her and may tend to excite the emotions of the jury is not
a basis for excluding them.
State v. Beam, 109 Idaho 616, 620-21, 710 P.2d 526, 530-31 (1985).   The Idaho Supreme Court
has observed “the time has come when it should be presumed that a person capable of serving as
a juror in a murder case can, without losing his head, bear the sight of a photograph showing the
body of the decedent in the condition or place in which found.”  State v. Enno, 119 Idaho at 406-
07, 807 P.2d at 624-25 (internal cites and quotes omitted).   The Enno Court recounted numerous
Idaho murder cases where the admission of graphic photographic evidence was upheld.   There,
Enno complained that a photograph of the victim at the crime scene and three other photographs
used by the pathologist to explain the extent of the victim’s injuries were not necessary because
the testimony of the pathologist was sufficient to explain why the victim had died.   The Court
recognized that the trial court had only allowed four out of the ten photographs offered by the
State and the trial court conducted the required balancing of the probative value with the
prejudicial effect.   The Court held the trial court did not abuse its discretion in admitting the
photographs.  Id. at 407, 807 P.2d at 625.
Reid claims Exhibits 17, 22, and 27 were admitted in error under I.R.E. 403 because the
unfair prejudice significantly outweighed their probative value.  Reid contends that the only issue
of relevance for trial was whether Reid shared Kienholz’s mental state and, unless a picture
could shed light on Reid’s state of mind, it would have little or no probative value, but strong
inflammatory effect.   Exhibit 17 showed the upper half of Howard’s body, on its back, with the
arms outstretched, and a bloody head tilted to the side.   Reid suggests that the picture is similar
to the depiction of Christ on the cross and that it, together with Detective Morgan’s testimony,
which described Howard’s body lying in a cross position, injected into the trial “deeply seated
religious emotions.”  Exhibit 22 is a close-up of Howard’s head, which showed the bullet hole at
his temple, blood across his face, and fly larvae.   Exhibit 27 is a close-up of Bewick’s head,
which shows her head caked in dry blood and her mouth covered in fly larvae.   Reid contends
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that the photos of Howard’s and Bewick’s faces being eaten by insects evoke powerful emotions
that would cause an inflammatory effect and outweigh any probative value.
The State was required to prove that on or about August 4, 2008, in the State of Idaho,
Kienholz did without justification or excuse, willfully, unlawfully, deliberately, and with malice
aforethought  and  premeditation,  kill  the  two  victims,  and  Reid  aided  and  abetted  in  the
commission  of the crime.    Additionally,  under  I.C.  §  19-2117,  independent  evidence was
required to corroborate the testimony of Reid’s accomplices, Kienholz and Wilson.    These
photographs were used in conjunction with the testimony from Detective Morgan to describe the
crime scene, identity, manner of death, and time of death.  Detective Morgan testified that he had
training and  experience  in  estimating the time of death,  based  on the extent  a body had
decomposed or the insect activity on the body.   Based on the decomposition of the bodies and
insect activity as of August 8, 2008, as shown in Exhibits 22 and 27, Morgan estimated the
bodies had been there for a few days, not several weeks.   The photographs corroborated the
testimony of Kienholz and Wilson of the fatal injuries and how they attempted to dispose of the
bodies.  Further, the trial court exercised its discretion and excluded a number of the photographs
prior to trial.   The photographs are undoubtedly gruesome, but this was a gruesome murder trial.
Photographs of dead victims are inherently prejudicial.  But, before their admission is precluded,
they must be unfairly prejudicial.   Reid has failed to demonstrate the trial court abused its
discretion in admitting Exhibits 17, 22, and 27.
C.                                                                                                     Evidence at Sentencing
Reid claims that the district court violated Reid’s due process rights by considering, at
sentencing, a transcript of a conversation between Ronald Rollins, a cellmate with Reid, and
Detective Morgan.   In the interview, Rollins recounted conversations with Reid in which Reid
described the murders and demonstrated a lack of any remorse.   The State argues that Reid did
not raise this objection below and, therefore, Reid must demonstrate fundamental error which he
cannot do.   In response, Reid contends that he did object below and that, even if he did not, the
error was fundamental.
The threshold question here is whether Reid preserved his objection in the trial court.   At
sentencing, the district court began by telling the parties it had reviewed the PSI and the Rollins
transcript.   The State used the statements from Rollins to point out Reid’s culpability and lack of
remorse.  In regard to Rollins’ statements, Reid’s counsel argued:
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The  -- I don’t want to dwell on this Ronnie Rollins, but it’s  -- it’s
disgusting.    I think it’s very poor form to bring that up today.    I think it’s
inflammatory, and I think it’s insulting to the families here today.  Ronald Rollins
doesn’t have little credibility -- he has no credibility while giving the statement in
jail to get out of jail.    None of the things he said was corroborated by Jon
Kienholz or Hiram Wilson there.  None of it happened.  And I think it’s very poor
form to bring that up today.   It’s a complete lie and fabrication, inconsistent with
every statement of every witness that’s recorded in this case, including Mr. Reid’s
earliest statement.   And it was all for a plea arrangement with Mr. Rollins that
never materialized from the State.
The statements above do not constitute an objection, but instead are arguments regarding its
usefulness.   Therefore, we turn to fundamental error and because Reid has not demonstrated
error we need to go no further in the Perry analysis.
Reid  contends  that  consideration  at  sentencing  of  the  Rollins’  interview  was  a
constitutional due process violation because the information was not credible.   In State v. Dunn,
134 Idaho 165, 172, 997 P.2d 626, 633 (Ct. App. 2000), this Court stated:
A  judge  may  consider  a  broad  range  of  information  when  fashioning  an
appropriate sentence.    Williams v. New York,  337 U.S.  241  (1949); State v.
Morgan, 109 Idaho 1040, 1042, 712 P.2d 741, 743 (Ct. App. 1985).   A defendant
is denied due process when the sentencing judge relies upon information that is
materially untrue or when a judge makes materially false assumptions of fact.
State v. Gawron, 124 Idaho 625, 627, 862 P.2d 317, 319 (Ct. App. 1993).
In United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993), the court stated that due process
requires that hearsay bear some minimal indicia of reliability in order to be considered at
sentencing, and a defendant cannot be sentenced on materially incorrect information.  Id.
In order to demonstrate error, Reid must show that the Rollins’ interview information was
materially untrue and/or incredible.   The interview with Rollins occurred in January 2009, prior
to the jury trial in this case held in May 2009.   Rollins and Reid were held in the Shoshone
County Jail when Reid allegedly told Rollins about the murders.   The transcript is somewhat
lengthy, but as an example, Rollins stated:
Well when you tell a story, you know, like the girl  [Reid] discussed
kicking the girl, [Wilson] kicking the girl in the face and thought it was funny,
thought her jaw to the side and her crying and screaming whatever she was for
mercy and pulling her hair out was comical for some reason.   I don’t see any
humor in it, but he thinks it’s funny.   I mean he literally has a grin on his face and
he has that weird chuckle telling the whole story the whole time.   Every time I
hear that story he laughs like it’s the same thing.   And when he tells it, he thinks
in his mind he’s not getting anything. . .
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Later Rollins stated:
I don’t know if this is true, he said that the girl didn’t die from the gunshot wound
she actually bled to death from the mouth.   I don’t know if that’s true or not.   He
thought that was pretty hilarious that she wasn’t dead when they dropped the body
that she actually bled out he claims.
Detective Morgan specifically asked Rollins if Reid showed any remorse.
Morgan:                                                                                                 Did he ever show any remorse?
Rollins:                                                                                                Not one time.  That’s what sickened me.
Morgan:                                                                                                 He never said that he was sorry they were dead or . . .
Rollins:                                                                                                Nope.
Morgan:                                                                                                 . . . or wish it never happened?
Rollins:                                                                                                He pretty much says they’re punks.   He said that’s why they shot
em because they were punks and they, what was the word, uh
geeze, he used the words describing them for not giving them the
car. . .
Reid  claims  that  Rollins  lacked  any  credibility  as  evidenced  by  a  number  of
inconsistencies between Rollins’ story and the testimony later given by Kienholz and Wilson at
trial,  including:                                                                                      (1)  who  may  have  kicked  Bewick;  (2)  whether  her  jaw  was  displaced;
(3) whether she pulled her own hair; (4) prior attempts to get a gun; (5) motive to steal Howard’s
car and;  (6) planning of the murders two to three days ahead instead of on the day of the
murders.
In regard to the Rollins interview, the district court stated:
The State submitted documentation in support of sentencing consisting
primarily of the transcript of the interview of Ronald Rollins, Jr., that was taken in
jail.  And [defense counsel] quite properly has pointed out that we have nothing to
judge the credibility of Mr. Rollins.   He’s not here.   He’s not subject to cross-
examination.   And I recognize that and recognize that, without live testimony and
cross-examination, the statements should be taken with a grain of salt.
But  one  thing  that  occurred  to  me,  as  I  was  looking  through  the
statements, was that the statements were made prior to the trial or any real
discussion of the facts of the case.   And Mr. Rollins did have a good knowledge
of the facts of the case based upon what he stated that Mr. Reid had told him
while they were in jail together.   And so, recognizing that he was not subject to
cross-examination, there is some evidence just from the statements, themselves,
that they do have an element of credibility because he has details that would not
have been known to him except had they been given him by Mr. Reid as he stated.
And I’m referring there to elements that -- or details of the facts that came out
during the trial.
Although  there  are  some  inconsistencies,  there  are  also,  as  the  district  court  indicated,
consistencies between what Rollins knew and facts that came out at trial--months after the
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interview--including that Reid was planning to flee from his charges to Bolivia, that marijuana
was used to buy the .22 caliber pistol, that Reid instigated Kienholz to shoot the victims, that
Kienholz shot both victims in the head, the order of the shootings, and the location of the
disposed bodies.
The credibility of jailhouse informants, particularly those who are not subject to cross-
examination, is a serious issue, although more so at trial than sentencing.   The district court
recognized that Rollins’ credibility and the reliability of his story was an issue.  The district court
determined that although it could not assess Rollins’ credibility in general, the similarity of facts
recounted by Rollins and facts adduced months later at trial gave credibility to the information.
In addition, the district court expressed appropriate caution in the usefulness of the information.
While there were inconsistencies, Reid has not proven that the information was materially untrue
such as to rise to the level of a due process violation.  Thus, Reid has not demonstrated error.
III.
CONCLUSION
Reid has failed to demonstrate that the jury instructions were erroneous.   The district
court did not abuse its discretion in admitting photographs of the victims’ bodies over Reid’s
objection.   The district court did not violate Reid’s due process rights by considering the Rollins
transcript at sentencing.  Reid’s judgment of conviction and sentences are affirmed.
Judge LANSING and Judge GUTIERREZ CONCUR.
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Idaho Law