Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Thomas Neville, District Judge.
The opinion of the court was delivered by: Burdick, Justice
Darrell Payne appeals his conviction of first-degree murder, first-degree kidnapping, robbery and rape, and his sentence of death for first-degree murder. He also appeals the summary dismissal of all but one of his claims for post-conviction relief. The State cross-appeals the district court's order setting aside Payne's death sentence on post-conviction relief. We affirm Payne's conviction, but vacate his sentence on post-conviction and remand to the district court for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
The district court sentenced Payne to death for the murder of Samantha Maher after a jury found him guilty of kidnapping, raping, robbing and murdering Maher.
On July 6, 2000, Payne abducted Maher from Julia Davis Park in Boise. That morning, he left his home as if to go to work, even kissing his wife goodbye, but instead drove to the park. Payne had with him a loaded .22 Ruger and several recent purchases: handcuffs, latex gloves, detailed maps and atlases of Oregon, and camping gear. Payne approached Maher around 10:15 that morning as she was arriving for her class at Boise State University. Carrying the handgun, Payne forced Maher into the front seat of her car. He then handcuffed her wrists and drove her car to an unknown location. After sexually assaulting her, Payne raped Maher, leaving bruises, cuts and scrapes on her face, back and buttocks. After the rape, Payne placed the handgun at the back of Maher's head and shot her. Payne then placed Maher's body in the back seat of her car and drove to his rented home, a former dairy farm, near Nampa. He disposed of her body by dumping it in a concrete drainage tank containing water and debris near one of the barns on the property. He went into his home, ate some left-over pizza and left a note under a bed pillow for his wife. He took Maher's keys and purse containing her credit cards and drove to the Oregon coast and then on to Eugene, Oregon the next day.
When Maher did not return to work after her class, her father began searching for her. When the search for her or her car was unsuccessful, he reported her missing to the Ada County Sheriff's Office. Also on July 6, Payne's boss called Payne's wife, Teresa, to report that Payne was not at work. Teresa's mother then began searching for Payne. When Teresa returned home that evening, she noticed things were out of order and called the Canyon County Sheriff's Office; she was advised that she would have to wait to make the missing person's report.
The search for Maher continued until July 8, 2000. That morning, a Canyon County Sheriff's Deputy arrived at the Payne home to take a missing person's report from Teresa. While the deputy was taking the report, Payne called Teresa. Without Payne's knowledge, Teresa reported parts of their conversation to the deputy. Payne told his wife that he was at a Motel 6 in Eugene, Oregon and that he had overdosed on aspirin in order to kill himself. The deputy then contacted the Eugene police department and asked them to look for Maher and her car and to complete a welfare check on Payne at the motel.
Payne surrendered to the Eugene police after they made telephone contact with him; he crawled out of his room and an officer handcuffed him outside of his second-story motel room. Because the officers had knowledge that Payne had overdosed on aspirin, paramedics responded. After their initial assessment, Payne walked downstairs to the ambulance and was transported to Sacred Heart Hospital. While en route, Payne was advised of and acknowledged his Miranda rights.*fn1 At Sacred Heart, Detective Matthew Herbert advised Payne of his Miranda rights again, and after Payne stated that he understood his rights, Herbert began questioning Payne. Payne told Herbert that Maher was no longer alive and that her body was in an open concrete tank behind the barn at his home. When questioned about the blood in the back of Maher's car, Payne told the officer that he must have hurt her; he had a gun and must have shot her. He also explained that he took an overdose of aspirin because he felt badly about what happened to Maher and wanted to "save everybody the hassle." After being released from the hospital, Payne was taken to a holding cell.
Initially, an officer visually searched the motel room, looking for Maher, and saw the handgun and several sheets of paper on the bed; he also found a set of keys. Later, after obtaining a search warrant, the Eugene police searched the room again. They found two letters written by Payne: a "black letter" addressed to Teresa and a "red letter." In both letters, Payne referenced killing Maher; in the "red letter" he referred to committing three other rapes. The search of the motel also turned up the keys to Maher's car; a subsequent search of the vehicle revealed a large amount of blood in the back seat, Maher's credit cards and notebook, .22 caliber bullets, handcuffs, hair dye, latex gloves, men's underwear, men's pants in Payne's size, an atlas, hydrogen peroxide and a sponge, and numerous other items.
Back in Idaho, police officers located Payne's car in Julia Davis Park. They obtained a search warrant and found a leather holster, a box for a set of handcuffs and other items during the search of the car. Officers also visited the Payne residence. Teresa showed them the location of the tank. Inside, Maher was floating face down with a plastic bag over her head. Her pants and underwear were on in an appropriate fashion, but her shirt and bra were pulled above her breasts.
Payne was charged with premeditated first-degree murder, or alternatively felony-murder, first-degree kidnapping, robbery and rape. Payne filed numerous pre-trial motions, including a motion to suppress, which was denied. Payne also filed a notice to rely on mental health evidence. Two expert witnesses for the State then examined Payne. His trial commenced on September 17, 2001; Payne did not present any witnesses, instead arguing that the State had failed to meet its burden. A jury found Payne guilty of first-degree murder, first-degree kidnapping, rape and robbery; the jury returned a special verdict form.
The district court proceeded to sentence Payne pursuant to Idaho's former death penalty statute, I.C. § 19-2515 (2001). The court held a three-day sentencing hearing, consisting of a full day of victim impact statements and two days of testimony. The district court issued its findings as to mitigating and aggravating factors and sentenced Payne to death for the murder of Maher.
Payne then filed for post-conviction relief and amended his petition twice. Payne filed his initial petition for post-conviction relief on July 10, 2002, filed an amended petition on January 13, 2004, and filed his second amended petition on March 26, 2004. After oral argument on this petition, the district court granted the State's motion for summary dismissal of Payne's claims as to all issues except his sentence. The district court granted Payne's petition as to his sentence, concluding that Payne's death sentence violated Ring v. Arizona, 536 U.S. 584 (2002). Payne filed a timely notice of appeal, and the State cross-appealed. Payne's direct appeal and his appeal of the dismissal of his post-conviction petition were consolidated.
This Court's standard of review in death penalty cases is dictated by I.C. § 19-2827. State v. Fain, 119 Idaho 670, 671, 809 P.2d 1149, 1150 (1991). Idaho Code § 19-2827 provides, in part:
(b) The Supreme Court of Idaho shall consider the punishment as well as any errors enumerated by way of appeal.
(c) With regard to the sentence the court shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and
(2) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance from among those enumerated in section 19-2515, Idaho Code.
(d) Both the defendant and the state shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court.
(e) In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
(1) Affirm the sentence of death; or
(2) Set the sentence aside and remand the case for resentencing by a jury or, if waived, the trial judge.
(f) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration.
Payne raises numerous issues in his brief, asserting errors during both the guilt and sentencing phases of his trial and asserting claims for post-conviction relief. Additionally, the State cross-appeals the district court's order setting aside Payne's death sentence. We will first address Payne's claims as to the guilt phase of his trial. We will then turn to the arguments presented regarding the sentencing phase and the State's cross-appeal.
We begin by addressing error at the trial level. Payne first asserts that the district court erred in denying his motion to suppress. Additionally, he asserts that the district court erred in summarily dismissing his petition for post-conviction relief based on errors his trial counsel committed during the guilt phase of his trial. Finally, Payne argues that the district court erred in summarily denying his petition for post-conviction relief as to his claims for prosecutorial misconduct, lack of a meaningful opportunity to develop his post-conviction arguments and the unconstitutionality of I.C. § 19-2719. We will turn first to Payne's only direct appeal argument-the motion to suppress-before turning to his post-conviction claims.
On appeal, Payne argues that the district court erred in denying his motion to suppress the statements he made to Officer Herbert at the hospital in Eugene because Payne invoked his right to remain silent, and in the alternative, any waiver of his right to remain silent was not made voluntarily, knowingly and intelligently. Finally, Payne argues that the district court's reliance on the public safety exception as an alternate ground to deny his motion was misplaced.
In reviewing an order granting or denying a motion to suppress evidence, this Court reviews the trial court's findings of fact for clear error; however, the Court freely reviews the application of constitutional requirements in light of the facts found. State v. Smith, 144 Idaho 482, __, 163 P.3d 1194, 1197 (2007). A district court's conclusion that a defendant made a knowing and voluntary waiver of his Miranda rights will only be disturbed on appeal if the conclusion is not supported by substantial and competent evidence. State v. Varie, 135 Idaho 848, 851, 26 P.3d 31, 34 (2001).
a.Invocation Prior to trial, Payne moved to suppress statements he made to Officer Herbert during his interrogation at the hospital in Eugene. The district court denied Payne's motion to suppress as to the statements he made to Herbert.
At the suppression hearing, Herbert testified that he initially met Payne at the Sacred Heart Hospital Emergency Room in Eugene, Oregon. Herbert began by introducing himself and identifying himself as a police officer. His first question to Payne was: "Is she still alive?" Payne answered, "I don't think I should answer that." Herbert also testified that after making this statement, Payne never expressed an unwillingness to answer questions and never asked for counsel.
After a suspect has been advised of the right to remain silent and of the right to counsel pursuant to Miranda, police may not proceed with questioning if the suspect indicates a desire to remain silent. Miranda, 384 U.S. at 473-74; State v. Rhoades, 119 Idaho 594, 602, 809 P.2d 455, 463 (1991). An individual's right to cut off questioning is grounded in the Fifth Amendment and must be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 103 (1975). However, police officers are only required to cease questioning if the invocation of Miranda rights is clear and unequivocal. See Davis v. United States, 512 U.S. 452, 459-60 (1994); Varie, 135 Idaho at 853, 26 P.3d at 36. The United States Supreme Court held that in order to effectively invoke the right to counsel, a suspect must "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney . . . . If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Davis, 512 U.S. at 459-62. This "clear articulation" rule is also applicable to a defendant's assertion of his right to remain silent. State v. Law, 136 Idaho 721, 724-25, 39 P.3d 661, 664-65 (Ct. App. 2002) (citing United States v. Banks, 78 F.3d 1190, 1197 (7th Cir. 1996); United States v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995); Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994)); see also Arnold v. Runnels, 421 F.3d 859, 865 (9th Cir. 2005); State v. Whipple, 134 Idaho 498, 502-04, 5 P.3d 478, 482-484 (Ct. App. 2000). "Thus, a suspect's ambiguous or equivocal comment that does not plainly express a desire to remain silent or to terminate the interview will not obligate police to cease questioning." Law, 136 Idaho at 725, 39 P.3d at 665.
Here, Payne's statement, "I don't think I should answer that," is not sufficiently clear such that a reasonable officer in the circumstances would understand it as an invocation of the right to remain silent. The phrase, "I think," like the phrase "maybe I should" is equivocal. Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003). As Payne did not clearly invoke his right to remain silent, Herbert had no duty to discontinue his questioning of Payne. See Davis, 512 U.S. at 460-62.
b.Waiver However, that Payne did not unequivocally invoke his right to silence does not end our analysis. Payne's statements are only admissible if the waiver of his right to remain silent was made voluntarily, knowingly and intelligently. See, e.g., State v. Luke, 134 Idaho 294, 297, 1 P.3d 795, 798 (2000). "The trial court's conclusion that a defendant made a knowing and voluntary waiver of his Miranda rights will not be disturbed on appeal where it is supported by substantial and competent evidence." Id.
The district court found:
1. The defendant had been properly advised of his Miranda Rights twice before his interview by Detective Herbert (Once by Officer Vaira and once by Detective Herbert);
2. The defendant was mentally and emotionally capable of understanding and waiving his Miranda Rights;
3. The defendant understood his Miranda Rights and knowingly, voluntarily and intelligently waived them;
4. The defendant voluntarily responded to the questions asked and gave no involuntary responses or statements;
5. The defendant was not under the influence of alcohol at the time of his interview by Detective Herbert.
6. That while the defendant had ingested an undetermined amount of aspirin, it was not enough to require hospitalization and it did not result in anaphylactic shock. That while the defendant had an upset stomach and ringing in his ears, he was not incapacitated and his condition did not interfere with his ability to understand and waive his Miranda Rights. The defendant voluntarily chose to speak to Detective Herbert.
7. The defendant responded to all but approximately two or three questions asked [including Herbert's first question, "Is she still alive?"]
It then concluded, "[a]fter seeing the witnesses, hearing them testify and reviewing the exhibits, the [c]ourt finds by a preponderance of the evidence that under the totality of the circumstances test, the defendant had the capacity to understand, did understand, and properly waived his Miranda Rights."
These findings and the district court's conclusion are supported by substantial and competent evidence. First, Christian R. Brackett, a paramedic in Eugene who responded to the hotel, testified that Payne was oriented to person, place, time and situation. Brackett found Payne "to be aware of who he was. He told [Brackett] that he knew where he was, he knew what day it was and he understood-he seemed to understand the situation based on answering those questions accurately." Brackett also testified that Payne's speech was clear and accurate and that Payne was lucid and not confused, but that Payne appeared a little depressed. Additionally, Brackett testified that Payne was able to walk without assistance from the second floor of the motel and was able to support his own weight.
Next, Officer Arlin Vaira, the Eugene police officer who accompanied Payne in the ambulance, testified that he read Payne his Miranda rights en route to the hospital. He also noted that after each right, Payne responded that he understood that right. Vaira also testified that Payne gave Vaira, in response to a question, his name and birth date and spelled his name.
After Payne arrived at the hospital, Detective Herbert also read Payne his Miranda rights, and asked if he understood those rights. Herbert testified that Payne did not have any difficulty understanding Herbert's questions, and although he responded to them in a low speech volume, Payne's answers were logically responsive to the questions asked. Herbert also testified that Payne seemed oriented to the events around him and did not appear intoxicated.
Finally, Dr. Charles Steuart, a medical doctor, reviewed Payne's medical records from Sacred Heart Hospital and testified that Payne's aspirin level did not require hospitalization. He also testified that Payne had not been given any medications which would interfere with his mental processes.
Although the State elicited additional testimony at the hearing supporting the district court's decision, the testimony discussed supra supports the district court's findings and conclusions. Therefore, since Payne did not invoke his right to remain silent and because the district court's decision that he knowingly, voluntarily and intelligently waived his Miranda rights is supported by substantial and competent evidence, we affirm the district court's order denying Payne's motion to suppress the statements to Herbert. Accordingly, we need not determine whether the public safety exception is an alternative ground supporting the district court's denial of Payne's motion to suppress.
2. Post-conviction issues
Payne raises a number of post-conviction issues dealing with his trial counsel's conduct during the guilt phase of his trial. He maintains that the district court erred in summarily dismissing his claims that his counsel was ineffective in failing to suppress an eyewitness identification, failing to suppress the admission of the letters found in the motel room and failing to object to the prosecution's closing arguments. He also maintains that the district court erred in dismissing his post-conviction claims based on prosecutorial misconduct, the lack of a meaningful opportunity to develop his post-conviction claims, and the constitutionality of I.C. § 19-2719. We will address each issue in turn, after setting out the standard of review.
a.Applicable legal standard A post-conviction relief petition initiates a civil, rather than criminal, proceeding. Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969). Like the plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990). "An application for post-conviction relief differs from a complaint in an ordinary civil action[.]" Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004) (alteration in original). The "application must contain much more than 'a short and plain statement of the claim' that would suffice for a complaint under I.R.C.P. 8(a)(1)." Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). The application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.
Idaho Code § 19-4906 authorizes summary dismissal of an application for post- conviction relief, either pursuant to motion of a party or upon the trial court's own initiative. Summary dismissal of an application is the procedural equivalent of summary judgment under I.R.C.P. 56. Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact that, if resolved in the applicant's favor, would entitle the applicant to the relief requested. If such a factual issue is presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct. App. 1991). However, summary dismissal may be appropriate even where the State does not controvert the applicant's evidence because the court is not required to accept either the applicant's mere conclusory allegations, unsupported by admissible evidence, or the applicant's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
On review of a dismissal of a post-conviction relief application without an evidentiary hearing, the Court must determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). "[W]here the evidentiary facts are not disputed and the trial court rather than a jury will be the trier of fact, summary judgment is appropriate, despite the possibility of conflicting inferences because the court alone will be responsible for resolving the conflict between those inferences." State v. Yakovac, 145 Idaho 437, ___, 180 P.3d 476, 482 (2008). "When an action is to be tried before the court without a jury, the judge is not constrained to draw inferences in favor of the party opposing a motion for summary judgment but rather the trial judge is free to arrive at the most probable inferences to be drawn from uncontroverted evidentiary facts." Id.
b.Ineffective assistance of counsel We review claims for ineffective assistance of counsel utilizing the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Mitchell v. State, 132 Idaho 274, 277, 971 P.2d 727, 730 (1998). To prevail on such a claim, the applicant for post-conviction relief must demonstrate (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 692; Mitchell, 132 Idaho at 277, 971 P.2d at 730. When evaluating an ineffective assistance of counsel claim, this Court does not second-guess strategic and tactical decisions, and such decisions cannot serve as a basis for post-conviction relief unless the decision is shown to have resulted from inadequate preparation, ignorance of the relevant law or other shortcomings capable of objective review. Pratt v. State, 134 Idaho 581, 584, 6 P.3d 831, 834 (2000). "There is a strong presumption that counsel's performance fell within the wide range of professional assistance." State v. Hairston, 133 Idaho 496, 511, 988 P.2d 1170, 1185 (1999) (internal quotations omitted) (quoting Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988)).
i. Eyewitness identification At trial, the prosecution mentioned an eyewitness, Megan Toole, during its opening argument, and Payne's counsel moved for a mistrial believing her testimony had been the subject of a pretrial motion. However, they had not made a motion to exclude her testimony and trial continued. During her testimony, Toole indicated that she observed Payne sitting in his parked car near the Greenbelt in Julia Davis Park the morning of Maher's kidnapping, rape and murder. She remembered him waving to her during her morning jog. Later, on July 13, 2000, after Payne was in custody and after she saw a picture of Payne on the news, Toole contacted police to let them know she had seen Payne on the morning of July 6. On July 14, after having her describe the details of the car she had seen, the officer showed ...