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Pizzuto v. State

March 19, 2010


Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Patrick H. Owen, District Judge.

The opinion of the court was delivered by: W. Jones, Justice

2010 Opinion No. 33

The decision of the district court is affirmed.


Gerald Ross Pizzuto, Jr. was convicted of grant theft, robbery, two counts of murder in the first degree, and two counts of felony murder for the deaths of Berta and Delbert Herndon. Pizzuto received a fixed sentence of fourteen years for grand theft, a life sentence for robbery, and a sentence of death for the murders. Pizzuto v. State, 146 Idaho 720, 722, 202 P.3d 642, 645 (2008). Pizzuto filed a direct appeal, and this Court affirmed his convictions and sentences except for the robbery conviction, which was dismissed because this Court found it to be a lesser included offense of felony murder. State v. Pizzuto, 119 Idaho 742, 757--58, 810 P.2d 680, 695-- 96 (1991). Pizzuto had simultaneously filed his first petition for post-conviction relief with the direct appeal; the court dismissed his petition, and this Court affirmed the dismissal. Id.

Pizzuto filed a second petition for post-conviction relief in 1994 wherein he asserted a number of claims that had not been included in his first petition. Pizzuto v. State, 127 Idaho 469, 903 P.2d 58 (1995). The district court denied the petition on the ground that Pizzuto failed to make a prima facie showing that the claims were not known or reasonably could not have been known when Pizzuto filed his first post-conviction petition, and consequently, the claims were barred under I.C. § 19-2719. Id. at 470, 903 P.2d at 69. This Court affirmed the district court‟s dismissal. Id. at 471--72, 903 P.2d at 60--61.

On April 13, 1998, Pizzuto filed an amended third petition for post-conviction relief requesting that Judge Reinhardt recuse himself due to his prejudice against the petitioner. Pizzuto also claimed that he was entitled to a new trial because the prosecution wrongfully withheld exculpatory evidence. Pizzuto v. State, 134 Idaho 793, 795--98, 10 P.3d 742, 744--748 (2000). Judge Reinhardt declined to recuse himself, and he summarily dismissed Pizzuto‟s petition under I.C. § 19-2719 finding that Pizzuto knew or reasonably could have known about the withheld information when he filed his first petition for post-conviction relief. Id. This Court affirmed the rulings of the district court. Id.

Pizzuto filed his fourth petition for post-conviction relief in 2002. In his petition, Pizzuto argued that under Ring v. Arizona, 536 U.S. 584, (2002), his sentence was illegal because a judge, instead of a jury, had made the factual findings upon which imposition of the death penalty was based. The district court dismissed Pizzuto‟s petition, and this Court affirmed the dismissal, holding that Ring did not apply retroactively.

On June 19, 2003, Pizzuto filed a fifth petition for post-conviction relief wherein he argued that under Atkins v. Virginia, 536 U.S. 304 (2002), it would be unconstitutional to execute him because he is mentally retarded. Pizzuto, 146 Idaho at 723, 202 P.3d at 645. Judge Reinhardt dismissed the petition on the grounds that he had failed to raise a genuine issue of material fact to support his claim of mental retardation and that the petition had not been filed within forty-two days after Atkins was released. Id. at 724--25, 202 P.3d at 645--46. Pizzuto had also filed a motion to disqualify Judge Reinhardt without cause under Idaho R. Civ. P. 40(d)(1) or, in the alternative, to disqualify him for cause because of his alleged bias against Pizzuto. Id. at 725, 202 P.3d at 646. Judge Reinhardt denied the motion, and on appeal, this Court affirmed the decision. Id. at 724-28, 202 P.3d at 656--50. This Court held that Pizzuto was not required to file his petition for post-conviction relief within forty-two days of the publication of the opinion. Id. at 727, 202 P.3d at 649. This Court, however, affirmed the dismissal of Pizzuto‟s petition on the ground that the Eighth Amendment does not prohibit the imposition of the death penalty on a petitioner who alleges mental retardation unless an expert provided an opinion showing that the petitioner had an IQ of seventy or below at the time of the murders and prior to his eighteenth birthday. Id. at 728--734, 202 P.3d at 650--656.

On November 25, 2005, Pizzuto filed his sixth petition for post-conviction relief and filed an amended petition on May 4, 2006. In his amended petition, Pizzuto asserted several claims:

(1) violation of his rights under the Fifth, Eighth, and Fourteenth Amendments because the prosecutor allegedly withheld exculpatory information; (2) prosecutorial misconduct in violation of his rights under the Sixth Amendment and Brady v. Maryland, 373 U.S. 83 (1963), for allegedly withholding exculpatory information; (3) judicial misconduct in violation of his right to a trial before an impartial judge; (4) denial of impartial post-conviction review; (5) cumulative error; and (6) actual innocence. On May 4, 2006, Pizzuto also filed a motion for leave to file additional affidavits and simultaneously filed a motion for leave to conduct discovery.

Four of Pizzuto‟s claims were dismissed by Judge Williamson on June 1, 2006, and the remaining issues were dismissed by Judge Owen on October 31, 2007. Judge Williamson, in her June 1, 2006, order, struck several affidavits Pizzuto sought to file with his petition. The district court, through a number of orders, also severely limited Pizzuto‟s ability to conduct discovery. Pizzuto filed a timely notice of appeal on December 12, 2007.

The majority of Pizzuto‟s claims in his petition revolve around an alleged secret plea deal between the prosecutor and James Rice, a co-defendant who eventually testified against Pizzuto at his trial. Pizzuto alleges that a meeting was held between Rice‟s attorney, the prosecutor, and Judge Reinhardt where the parties agreed Rice would plead guilty to two counts of second degree murder for his role in the deaths of Berta and Delbert Herndon. In exchange for his testimony against Pizzuto, Rice would receive a twenty year sentence, which with good time credits, would amount to fourteen years, eight months, and sixteen days behind bars. Pizzuto argues that the true nature of Rice‟s plea deal was not divulged in order to bolster his credibility while testifying at trial. Pizzuto has provided evidence in the form of a billing record, which states that Rice‟s attorney, on January 13, 1986, took part in "[s]erious consultations and negotiations for plea-bargaining . . . with the prosecutor . . . ." Pizzuto has also provided a copy of notes from Rice‟s attorney stating that on January 16, 1986, Rice‟s attorney, the prosecutor, and Judge Reinhardt "discussed negotiations for Rice to enter a plea to reduced charges."

Pizzuto alleges that at Rice‟s plea hearing, Rice and his attorney, the prosecutor, and Judge Reinhardt took steps to conceal the nature of his plea agreement. Pizzuto argues that Judge Reinhardt asked Rice if he had been promised a lenient sentence in exchange for his guilty plea and Rice said that he had not. Pizzuto argues that Judge Reinhardt emphasized the fact that Rice could receive a fixed life sentence for each of the second degree murder counts. Moreover, Pizzuto argues that at trial, Rice appeared more credible because the prosecution elicited testimony from Rice that he was facing up to life in prison and that the prosecutor emphasized this point in his closing argument.

Pizzuto also claims that while the prosecutor and Judge Reinhardt were allegedly encouraging Rice to plead guilty, the blood evidence underwent a mysterious transformation. Pizzuto argues that on July 29, 1985, the police examined the cabin where the murders supposedly occurred and did not see traces of blood. On August 7, 1985, Don Philips, a state criminalist, and on October 24, 1985, Ned Stuart, another state criminalist, examined the cabin, and both did not see traces of blood. In January of 1986, Ann Bradley, Pizzuto‟s own criminalist, indicated that it would be difficult to conduct an examination of the cabin during the winter and suggested that the trial be postponed to allow for an inspection once the snow had thawed. In response to her request, during the week of January 6, 1986, Judge Reinhardt contacted Randy Baldwin, the Idaho County Sheriff, to have the cabin heated. Pizzuto emphasizes this was around the time Rice began recounting the story that both murders had occurred in the cabin. Pizzuto argues that without blood in the cabin, a jury would not have believed Rice‟s story. On January 13, 1986, after a second conversation with Judge Reinhardt, Sheriff Baldwin and Deputy Travis Breckon set up two large heaters in the cabin. The following day, criminalists Ann Bradley and Ned Stuart, when inspecting the cabin, both immediately observed blood. Pizzuto has provided several affidavits that among other things, cast doubt on the trustworthiness of Sheriff Baldwin.

Pizzuto argues the evidence of blood on articles of clothing also underwent a transformation. Ann Bradley testified that she found possible blood on three articles of clothing including a shirt allegedly owned by Pizzuto and a pair of jeans allegedly owned by Rice. She did not find blood on a blue nylon jacket allegedly owned by Pizzuto. Pizzuto argues that Stuart, another criminalist, in his initial report, did not mention any test on the blue nylon windbreaker, but in his report a week later, one day before Rice pleaded guilty, Stuart claimed he found blood on the Pizzuto‟s windbreaker.


1. Whether Pizzuto‟s claims are barred by I.C. § 19-2719.

2. Whether this Court is precluded from considering the merits of Pizzuto‟s appeal because he did not comply with Idaho App. R. 35(a)(4).

3. Whether there is a genuine issue of material fact as to whether Judge Reinhardt was biased and committed acts of judicial misconduct.

4. Whether there is a genuine issue of material fact regarding Pizzuto‟s prosecutorial misconduct claim.

5. Whether there is a genuine issue of material fact regarding Pizzuto‟s actual innocence claim.

6. Whether Pizzuto has established a claim of cumulative error.

7. Whether Pizzuto is entitled to an evidentiary hearing.

8. Whether this Court should affirm the decision of the district court to strike affidavits. STANDARD OF REVIEW

"Petitions for post-conviction relief are civil proceedings governed by the Idaho Rules of Civil Procedure." Storm v. State, 112 Idaho 718, 720, 735 P.2d 1029, 1031 (1987). To prevail, a petitioner generally must prove by a preponderance of the evidence the allegations upon which the petition for relief is based. Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Idaho Ct. App.1990).

"Whether a successive petition for post-conviction relief was properly dismissed pursuant to I.C. § 19-2719 is a question of law," which this court reviews de novo. Pizzuto, 134 Idaho at 795, 10 P.3d at 744.

In Charboneau v. State, 140 Idaho 789, 793, 102 P.3d 1108, 1112 (2004) (quoting Saykhamchone v. State, 127 Idaho 319, 321, 900 P.2d 795, 797 (1995)), this Court reaffirmed the standard of review for post-conviction ...

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