Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. John K. Butler, District Judge.
The opinion of the court was delivered by: Lansing, Judge
2012 Unpublished Opinion No. 565
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Judgment summarily dismissing petition for post-conviction relief, affirmed in part, reversed in part, and case remanded.
Alisha Ann Murphy appeals from the district court's order summarily dismissing her successive petition for post-conviction relief. She contends that the district court erred by denying her motion for appointed counsel and, alternatively, that the court erred in its determinations that her claims of ineffective assistance of trial counsel failed to establish deficient performance or prejudice.
This is Murphy's fourth appeal to this Court. The factual and procedural history is set forth in the second of those appeals,*fn1 Murphy v. State, 143 Idaho 139, 139 P.3d 741 (2006), as follows:
In the underlying criminal case, Murphy was convicted of first degree murder. The state's evidence indicated that on the night of December 18, 1995, Murphy entered the room of her children and began choking her seven-year-old son, Jimmy, with a belt. James, her husband, intervened and they began to argue. The argument continued in the kitchen, and Murphy knocked her husband unconscious with a cast-iron frying pan. Murphy then obtained a gun from a bedroom and returned to the kitchen. According to Jimmy's trial testimony, Jimmy observed his mother kneeling over his father's motionless body and placing a gun into James' hand. She appeared to be pointing the gun in the direction of his father's face. Jimmy ran back to his room and then he and his four-year-old sister, Olive, heard a loud noise. Murphy gathered the children and they walked through the kitchen where James' body was lying on the floor, exited the house and drove away.
It is undisputed that Murphy and her husband were involved in a turbulent relationship marked by excessive alcohol use and physical violence. Both were extremely intoxicated on the night in question. Murphy always maintained her innocence, claiming her husband committed suicide. According to Murphy, as the fight escalated she grabbed her two children and fled the house as she had done so many times before. This version of the events was corroborated by Jimmy's initial statements to the police that he saw his father waving to them from the doorway of the house as they drove away. Murphy also insisted that after she left, her husband recorded a telephone message on the answering machine of Norma Jo Robinson, Murphy's mother, proving that he was still alive. Finally, the autopsy report prepared at the time by pathologist, Dr. Kerry Patterson, listed the manner of death as indeterminate.
Several years later, Jimmy changed his story. Jimmy said that his mother had threatened to hurt him if he did not tell the police about seeing his father waving at the door. With this additional evidence, Murphy was charged with the murder of her husband. In December 1999, before the grand jury, the state's expert, Dr. Patterson, testified consistent with his autopsy report, that the manner of death was indeterminate.
Murphy's trial counsel advised her to use a "battered woman syndrome" defense, which she rejected because she refused to admit to committing the fatal act. Murphy also rejected her counsel's recommendation to accept a reduced voluntary manslaughter charge offered by the state. Then, on the eve of the trial--in September of 2000, more than four years after James' death--
Dr. Patterson, changed his opinion about the manner of death from "indeterminate" to "homicide" after examining for the first time the gun involved and the gunshot residue report. Dr. Patterson's position at trial regarding the manner of death was contrary to his autopsy report rendered three days after the death of James and contrary to his testimony before the grand jury. Defense counsel moved for a mistrial but did not request a continuance based on this change of position. At the conclusion of the trial, the jury returned a verdict of guilty. The district court imposed a life sentence with no possibility of parole. We affirmed Murphy's conviction and sentence. State v. Murphy, Docket No. 27853 (January 8, 2003) (unpublished).
Murphy subsequently filed a pro se application for post-conviction relief, raising numerous claims involving ineffective assistance of counsel, police misconduct, prosecutorial misconduct, and judicial misconduct, and incorporating a motion to amend the application upon completion of discovery. The district court appointed counsel and issued a notice of intent to dismiss Murphy's application. Post-conviction counsel responded to the court's notice by filing a memorandum and affidavits from Murphy and her trial counsel.
The court summarily dismissed all of Murphy's claims except an ineffective assistance of counsel claim relating to the testimony of Dr. Patterson and trial counsel's failure to obtain a forensic pathologist to aid the defense. The state filed a motion for summary dismissal, supported by another affidavit from Murphy's trial counsel. The court then vacated its prior summary dismissal order and directed Murphy to respond to the state's motion.
Murphy's post-conviction counsel responded by filing a motion seeking funds to retain an independent forensic pathologist to fully review the reports in the underlying criminal matter, including but not limited to James' autopsy report, the gunshot residue report, Dr. Patterson's pathology reports, and all other relevant evidence and related trial testimony. The district court denied Murphy's request for funds to retain a pathologist and granted the state's motion for summary dismissal.
Id. at 143-44, 139 P.3d at 745-46 (footnote omitted).
This Court affirmed in part, reversed in part, and remanded the post-conviction case to the district court for further proceedings. Id. at 151, 139 P.3d at 753. Of relevance to the present appeal, in Murphy's first post-conviction appeal we affirmed the summary dismissal of Murphy's claim of ineffective assistance of counsel regarding counsel's failure to call Norma Jo Robinson, Murphy's mother, to testify at trial about a telephone message allegedly left by James on Robinson's answering machine on the night that he was killed, but we reversed the summary dismissal of her claim that defense counsel was ineffective for failing to hire a forensic pathologist to aid the defense. We remanded the case with instructions for the district court to authorize funding for a forensic pathologist to review Murphy's claim. Id. at 145-51, 139 P.3d at 747-53. Also of relevance to this appeal, because notice of grounds for dismissal had not been given to Murphy by the district court, we reversed the dismissal of several other claims, including claim number "12" alleging that her trial counsel was ineffective for failing to obtain telephone records that allegedly would show a call from James's cell phone or the Murphy home's landline telephone to Robinson's telephone after the time that Murphy and her children had left the house, which would support an alibi defense. Id. at 150-51, 139 P.3d at 752-53.
On remand, after authorizing Murphy to hire an independent forensic pathologist at public expense, the district court ultimately granted Murphy an evidentiary hearing to address her remaining claims of ineffective assistance of counsel for defense counsel's failure to (1) retain a forensic pathologist; (2) retain a gunshot residue expert; (3) retain a blood spatter expert; (4) investigate telephone records; and (5) identify an alleged "potential juror" who purportedly discussed the case with another potential juror in the hallway during juror selection. At the evidentiary hearing, counsel for Murphy, without explaining why, waived all claims except the claim relating to her trial counsel's failure to retain a forensic pathologist.*fn2 No evidence was presented to the district court in the form of testimony. Rather, both parties stipulated that the court could consider the reports of Dr. Patterson and Murphy's forensic pathologist, Dr. Todd Cameron Grey, as well as the grand jury and trial testimony from the underlying criminal case. Dr. Grey's initial report challenged Dr. Patterson's credentials and methodology, and the degree of certainty with which Dr. Patterson had expressed his opinion that James Murphy was the victim of a homicide. Dr. Grey's first report took issue with Dr. Patterson's opinion testimony that James did not shoot himself because a lab report stated that gunshot residue was found on the palms of both of James's hands but not on the back of either hand. Citing this testimony, in his first report Dr. Grey stated:
Dr. Patterson's claim that the GSR results prove this was a homicide is nonsense. Even if one accepts the validity of the sampling and testing, the results only indicate the decedent's hands were exposed to gun smoke. Any number of interpretations of the meaning of that finding can be legitimately offered.
Dr. Patterson produced a rebuttal report addressing Dr. Grey's concerns and maintaining his opinion that James Murphy had not committed suicide. Dr. Patterson's rebuttal report stated: In this case, the GSR was found only on the right and left palms of the decedent. This is not a pattern typically seen in suicides caused by self-inflicted gunshot wounds to the head. In suicides, GSR is typically found on the back of the hand holding the weapon and, in many cases, on the trigger finger. . . . The GSR pattern in this case is more consistent with the hand of the decedent being held or cupped around the grips of the gun by the assailant when the weapon was fired.
Dr. Grey then produced a second report in which he stated:
I agree that if one accepts that the sampling, evidence handling and testing for GSR was performed appropriately and according to standards, if residue was present only on the right and left palms, it would be atypical for suicide and that the more likely pattern is residue on the back of at least one hand.
The district court denied relief on Murphy's claim that she had received ineffective assistance of counsel because her defense attorney had not hired a forensic pathologist. The district court found Dr. Grey's concession that the lack of GSR on the back of James's hands was "atypical" of suicide to be very significant because if the gun had been discharged by James one would expect to find GSR on the back of at least one hand. Therefore, the district court found that Murphy had not shown that she was ...