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2013 Opinion No. 64
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Darla S. Williamson, District Judge.
Judgment denying petition for post-conviction relief, affirmed.
Dennis Benjamin of Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant. Dennis Benjamin argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
GUTIERREZ, Chief Judge. Judge GRATTON CONCURS. Judge LANSING, CONCURRING IN PART AND DISSENTING IN PART.
[156 Idaho 402] GUTIERREZ, Chief Judge
Edward John Stevens appeals from the district court's judgment denying his petition for post-conviction relief. Specifically, he contends the district court erred by summarily dismissing his claim that his appellate counsel was ineffective for failing to appeal the appointment of a Supreme Court justice to hear his new trial motion. He also contends the district court erred by denying his claims, following an evidentiary hearing, that the prosecution committed a Brady  violation by failing to disclose evidence that the deceased child's eyes were removed after embalming and that defense counsel were ineffective for failing to discover and present evidence regarding when the child's eyes were removed, the possible side effects of medication the child was taking, and the length and the timing of the skull fracture suffered by the child. Finally, he contends the alleged instances of deficient performance of defense counsel amounted to cumulative error. For the reasons set forth below, we affirm.
FACTS AND PROCEDURE
On the afternoon of December 27, 1996, an eleven-month-old boy (child) sustained a serious head injury while in the care of Stevens, the child's mother's boyfriend. The child died the next day after he was declared brain dead and removed from life support. Stevens claimed the head injury was the result of an accidental fall down the stairs, but the State contended the head injury occurred after Stevens violently shook the child and slammed the child's head onto the edge of a bathtub. Stevens was charged with murder in the first degree for killing the child during the course of committing an aggravated battery, Idaho Code § § 18-4001, 18-4002, 18-4003(d).
[156 Idaho 403] At trial, both the State and the defense agreed the child died as a result of his head injury. However, Stevens argued the cause of the injury was accidental, asserting he fell asleep and awoke approximately twenty minutes later to the sound of " thumps or a thud" and discovered the child lying at the bottom of the stairs not moving. After attempting to rouse the child and administer cardiopulmonary resuscitation (CPR), Stevens called 911 approximately five minutes later.
The State contended Stevens had been physically abusing the child since July, and on December 27, he was in the bathroom with the child, got frustrated with the child, violently shook the child, and then slammed the child's head against the side of the bathtub. The State further contended that Stevens then waited over half an hour to call 911. The State relied on essentially four components to prove this theory: (1) evidence that Stevens gave inconsistent accounts of what happened on December 27; (2) evidence that the child had been abused over the prior six months; (3) evidence that a child could not receive as severe a skull fracture as suffered by the child from a fall down stairs; and (4) evidence that the child had been shaken on December 27. In regard to the issue of how the child sustained the head injury, the State presented the testimony of five experts who testified the child could not have received the type of fracture he sustained from a fall down the stairs, while Stevens called three experts who testified the child could have. To support the State's assertion that the child had been shaken, a critical allegation that formed the aggravated battery portion of the first degree murder charge, the State presented various experts who testified to the brain and eye injuries sustained by the child and their opinions, to varying degrees, as to whether these injuries were caused by shaking. One expert in particular, Dr. Brooks Crawford, who examined the child's eyes after they were removed from his body, testified the constellation of injuries he found were highly specific to shaken baby syndrome. Stevens countered by offering the expert testimony of two doctors who stated that several of the injuries were consistent with a fall down the stairs and " science still does not fully understand the significance of these eye findings." The jury found Stevens guilty as charged.
Stevens appealed his conviction to the Idaho Supreme Court, but prior to oral argument, he moved for a new trial based on newly discovered evidence. His appeal was suspended pending the district court's decision on that motion. Stevens alleged he was entitled to a new trial based on newly discovered evidence consisting of, among other things, evidence that the child's eyes may have been damaged during embalming, including affidavits by experts contending the damage occurred after death and a mortuary report indicating the child was embalmed prior to his eyes being removed for examination, and information that Propulsid, a reflux drug being taken by the child, had been linked to instances of cardiac arrest (which Stevens claimed offered a possible alternate cause of death and/or reason the child would have fallen down the stairs). The Idaho Supreme Court appointed Justice Daniel Eismann, who had presided over the trial and sentencing as a district court judge before being elected to the Supreme Court, to hear the new trial motion. Stevens objected to the appointment, filing motions in both the Supreme Court and district court, but they were denied. Following a hearing, Justice Eismann denied the new trial motion, finding that the evidence indicating the eye damage occurred after death, including the mortuary report and the evidence relied upon by the experts in their affidavits, was not newly discovered evidence because counsel could have discovered it with due diligence and that evidence about the possible side effects of Propulsid would probably not have produced an acquittal. The Supreme Court affirmed the denial of the new trial motion on appeal. State v. Stevens, 146 Idaho 139, 144, 191 P.3d 217, 222 (2008).
In 2009, Stevens filed a petition for post-conviction relief claiming, in relevant part, that his appellate counsel was ineffective for
[156 Idaho 404] failing to appeal the denial of his challenge to the appointment of Justice Eismann; that he was denied due process because the State failed to turn over exculpatory evidence indicating the eyes were removed post-embalming, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and that his appointed defense counsel were ineffective for failing to discover and/or present exculpatory evidence, specifically the mortuary report, that the child was embalmed before his eyes were removed for examination and failing to discover and/or present evidence regarding the possible side effects of Propulsid and the length and timing of the child's skull fracture. Stevens also alleged the cumulative effect of defense counsel's deficient performance resulted in prejudice and denied him the effective assistance of counsel. The district court summarily dismissed the ineffective assistance of appellate counsel claim and denied the remaining claims following an extensive evidentiary hearing. Stevens now appeals the denial of his petition for post-conviction relief.
A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like plaintiffs in other civil actions, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action, however, in that it must contain more than " a short and plain statement of the claim" that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 Idaho at 271, 61 P.3d at 628. The petition must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records or other evidence supporting its allegations must be attached, or the petition must state why such supporting evidence is not included. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative, if " it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of facts, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." I.C. § 19-4906(c). When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district court is not constrained to draw inferences in the petitioner's favor, but is free to arrive at the most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at 483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036, 1042 (2008); Hayes, 146 Idaho at 355, 195 P.3d at 714; Farnsworth v.
[156 Idaho 405] Dairymen's Creamery Ass'n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).
Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner's allegations do not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State, 143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924 P.2d 622, 630 (Ct. App. 1996). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, the petitioner is not entitled to relief even with all disputed facts construed in the petitioner's favor. For this reason, summary dismissal of a post-conviction petition may be appropriate even when the State does not controvert the petitioner's evidence. See Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901.
On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner's admissible evidence asserts facts that, if true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman, 125 Idaho at 647, 873 P.2d at 901. Over questions of law, we exercise free review. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001); Martinez v. State, 130 Idaho 530, 532, 944 P.2d 127, 129 (Ct. App. 1997).
Conversely, if the petition, affidavits and other evidence supporting the petition allege facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004); Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart, 118 Idaho at 924, 801 P.2d at 1275; Sheahan, 146 Idaho at 104, 190 P.3d at 923; Roman, 125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. Kelly, 149 Idaho at 521, 236 P.3d at 1281; Payne, 146 Idaho at 561, 199 P.3d at 136; Goodwin, 138 Idaho at 272, 61 P.3d at 629. As stated above, in order to prevail in a post-conviction proceeding, the petitioner must prove the allegations by a preponderance of the evidence. Stuart, 118 Idaho at 869, 801 P.2d at 1220; Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct. App. 2010). When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56, 106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review of the district court's application of the relevant law to the facts. Baxter, 149 Idaho at 862, 243 P.3d at 678.
A. Brady Violation
Stevens contends his Fourteenth Amendment right to due process was violated by the State's failure to disclose exculpatory evidence prior to trial as required by Brady, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Specifically, he contends the State committed a Brady violation by failing to disclose that the child's eyes were removed post-embalming, a fact he argues indicates the child had not been shaken because it was the embalming process that likely caused the damage to the eyes that the State's experts at trial had testified were indicative of shaken baby syndrome. He contends at least one of the
[156 Idaho 406] prosecutors knew this information, or even if the prosecutor did not know, members of the investigative team knew.
Due process requires all material exculpatory evidence known to the State or in its possession be disclosed to the defendant. Id. at 87; Dunlap, 141 Idaho at 64, 106 P.3d at 390. See also I.C.R. 16(a). There are three essential components of a true Brady violation. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Dunlap, 141 Idaho at 64, 106 P.3d at 390. First, the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching. Dunlap, 141 Idaho at 64, 106 P.3d at 390; Queen v. State, 146 Idaho 502, 504, 198 P.3d 731, 733 (Ct. App. 2008). Evidence is exculpatory if it " tends to clear an accused of alleged guilt, excuses the actions of the accused, or tends to reduce punishment." State v. Gardner, 126 Idaho 428, 433, 885 P.2d 1144, 1149 (Ct. App. 1994) (quoting State v. Johnson, 120 Idaho 408, 411, 816 P.2d 364, 367 (Ct. App. 1991)). Next, the evidence must have been suppressed by the state, either willfully or inadvertently. Dunlap, 141 Idaho at 64, 106 P.3d at 390; Queen, 146 Idaho at 504, 198 P.3d at 733. Finally, prejudice must have ensued. Dunlap, 141 Idaho at 64, 106 P.3d at 390; Queen, 146 Idaho at 504, 198 P.3d at 733. Prejudice occurs if there is a reasonable probability that, had the withheld evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). A " reasonable probability" of a different result is shown when the government's suppression of evidence undermines confidence in the outcome of the trial. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Gardner, 126 Idaho at 436, 885 P.2d at 1152.
The duty of disclosure enunciated in Brady is an obligation of not just the individual prosecutor assigned to the case, but of all the government agents having a significant role in investigating and prosecuting the offense. State v. Avelar, 132 Idaho 775, 781, 979 P.2d 648, 654 (1999); Queen, 146 Idaho at 504, 198 P.3d at 733. However, a prosecutor is not required to disclose evidence the prosecutor does not possess or evidence of which the prosecutor could not reasonably be deemed to have imputed knowledge or control. Avelar, 132 Idaho at 781, 979 P.2d at 654; Queen, 146 Idaho at 504, 198 P.3d at 733.
As noted above, testimony regarding the condition of the child's eyes was significant at trial because it formed the basis of the State's theory that Stevens battered the child prior to striking the final blow that caused a skull fracture and eventual death. At trial, Dr. Gregory Kent, an ophthalmologist who took photographs of the child's eyes while the child was still in the hospital, testified he did not observe any macular or retinal folding in those photographs. Nor did he visualize any damage to the maculae when examining the eyes while the child was still alive. However, Dr. Crawford, an ophthalmologist specializing in eye pathology who examined the child's eyes after their removal, testified at trial that he observed such folds and other injuries that combined to indicate shaken baby syndrome. As set forth by Justice Eismann in his order denying Stevens' motion for a new trial, Dr. Crawford testified to the following significant findings at trial:
(a) The existence of a perimacular fold. He testified that it was very highly specific of shaken baby syndrome because it takes a rotational force (like a whiplash injury), not a translational force, to cause a perimacular fold. He testified that a perimacular fold was not pathognomonic (a medical certainty) of shaken baby syndrome.
(b) The existence of hemorrhages involving more than 20-30% of the retina. He testified that hemorrhages involving more than 20-30% of the retina is highly suggestive of shaken baby syndrome and that both of [the child's] eyes had hemorrhages involving more than 30% of the retina.
(c) A lack of hemorrhages in the equatorial area of the eyes. He testified that there was a wide distribution of hemorrhages in [the child's] eyes, but a paucity of hemorrhages in the equatorial area. He
[156 Idaho 407] testified he has never seen this distribution of hemorrhages other than in shaken baby syndrome.
(d) A hemorrhage in the dura next to the attachment of the optic nerve to the eye. He testified that such condition was extremely significant because it is something you see in most cases of shaken baby syndrome and [is] rarely seen in any other condition.
(e) The existence of bilateral retinal hemorrhages. He testified that many, if not most, cases of shaken baby syndrome will show retinal hemorrhages in both eyes, whereas with trauma there is usually just one eye involved.
Dr. Crawford concluded, " I can think of no other way to explain the findings, this constellation of findings that we have here, except for violent shaking. There's no other way to explain it." Additional expert witnesses for the State at trial agreed that the combination of macular folding, perineural hemorrhages, and the severity, frequency, and locations ...