2013 Unpublished Opinion No. 736
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Ronald J. Wilper, District Judge.
Judgment denying petition for post-conviction relief, affirmed.
Deborah Whipple of Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. Jessica M. Lorello argued.
GUTIERREZ, Chief Judge
Brandon Gould appeals from the judgment denying his petition for post-conviction relief. Specifically, Gould asserts the district court erred by applying incorrect legal standards to evaluate his ineffective assistance of counsel claims and, when evaluated under the correct standard, the district court erred by denying his post-conviction petition. For the reasons that follow, we affirm.
FACTS AND PROCEDURE
Following allegations by Gould's seven-year-old daughter that Gould had inappropriate sexual contact with her, a grand jury indicted Gould on one count of lewd conduct with a minor child under sixteen and one count of sexual abuse of a child under the age of sixteen years. At trial, the State largely based its case on the testimony of the daughter, her mother, and case workers who had interviewed the daughter. Defense counsel tried the case on the theory that the accusations were a fabrication by the mother and perpetuated by the daughter. Defense counsel attempted to highlight inconsistencies in the daughter's testimony and also presented witnesses who testified that the mother was known to be a liar, had made prior false allegations of sexual abuse of her two daughters against other individuals, and was hypersensitive about the possibility of sexual abuse of her daughters, overprotecting, and controlling. Defense counsel also moved for a mistrial on the basis that the prosecutor elicited testimony from the mother that misrepresented the state of Gould and the mother's marriage at the time the allegations surfaced. The mother testified that the marriage was fairly stable in that there had been no talk of divorce and that any problems mainly consisted of disagreements about finances. Defense counsel argued that there was evidence of other marital discord, but to introduce such evidence and impeach the mother would be highly prejudicial to Gould. The district court denied the motion. The district court also ruled that it would not limit the State's inquiry into impeachment evidence--if defense counsel chose to introduce it--under Idaho Rule of Evidence 403.
At the close of the trial, the jury found Gould guilty of lewd conduct with a minor under sixteen, Idaho Code § 18-1508, and was unable to reach a unanimous verdict on the second count. Defense counsel made a motion for a new trial pursuant to Idaho Code § 19-2406(5), made on the same basis as the motion for a mistrial previously sought and denied. The district court denied the motion and imposed a unified sentence of ten years, with three years determinate. Gould directly appealed, challenging only his sentence, and this Court affirmed in an unpublished opinion. Gould v. State, Docket No. 35797 (Ct. App. Oct. 27, 2009).
Thereafter, Gould timely filed a pro se petition for post-conviction relief. The State filed an answer and a motion for summary dismissal. Gould filed a motion for a stay of proceedings and sought leave to amend his petition, which the district court granted. After Gould filed an addendum to his petition, the State again answered and filed a motion for summary dismissal of the addendum. Gould raised three overarching claims in his petition and addendum: prosecutorial misconduct, ineffective assistance of defense counsel, and ineffective assistance of appellate counsel. In ruling on the motions for summary dismissal, the district court dismissed the claim of prosecutorial misconduct, finding that the claim could and should have been raised on direct appeal, but determined that Gould was entitled to an evidentiary hearing on the two claims of ineffective assistance of counsel.
At the evidentiary hearing, Gould presented evidence and argued that defense counsel was ineffective in several ways, including that defense counsel failed to obtain medical records of one of the daughters and failed to obtain records from the Idaho Department of Health and Welfare (IDHW). Gould argued that the medical records were pertinent to bolstering a defense witness's testimony that two years prior to trial, the mother brought the other daughter into the emergency room on suspicion of sexual abuse, which the emergency room physician deemed to be unsubstantiated. The records from the IDHW, Gould argued, would have indicated that the mother applied for state welfare benefits prior to the allegations by the daughter and would support the defense's theory that the accusations were part of some plan by mother to end the marriage rather than the impetus for the divorce. Gould also presented evidence and argued that his appellate counsel was ineffective for failing to appeal the denial of the motion for a mistrial and the district court's ruling that it would not limit the State's inquiry into impeachment evidence under Idaho Rule of Evidence 403. The district court denied the petition, and Gould timely appeals. He asserts the district court erred by applying incorrect legal standards to evaluate his ineffective assistance of counsel claims. Gould further asserts that, when evaluated under the correct standard, the district court erred by denying Gould's post-conviction petition.
STANDARD OF REVIEW