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Grove v. State

Court of Appeals of Idaho

February 2, 2017

STACEY LEWIS GROVE, Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent.

         2017 Opinion No. 8

         Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Carl B. Kerrick, District Judge.

         Judgment dismissing, in part and denying in part, petition for post-conviction relief, affirmed.

          Nevin, Benjamin, McKay & Bartlett, LLP; Dennis Benjamin and Deborah Whipple, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

          GRATTON, Chief Judge.

         Stacey Lewis Grove appeals from the district court's judgment dismissing, in part and denying in part, Grove's petition for post-conviction relief. We affirm.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         This Court made the following summarization of the facts of this case in State v. Grove, 151 Idaho 483, 485, 259 P.3d 629, 631 (Ct. App. 2011):

Stacey Grove was indicted for the first degree felony murder of K.M., his girlfriend's twenty-three-month-old son, who was beaten and died as a result of his injuries on July 11, 2006.
K.M. was the son of Lisa N. ("Lisa") and Todd M. ("Todd"). Todd and Lisa had a turbulent relationship and engaged in a custody battle over K.M. In approximately April 2006, Todd was granted overnight visits with K.M. At some point in 2006, Lisa and Grove became romantically involved and Grove moved into the house Lisa shared with K.M. and her young daughter in Lewiston.
On July 7, 2006, it was observed that K.M. was not acting normally and that he appeared lethargic and "puny." Lisa's mother took him to the doctor, but nothing of significance was found. That evening, Lisa brought K.M. home, but Grove was absent from the house overnight and was never around K.M. The next morning, Todd's wife picked up K.M. for an overnight visitation. Lisa and Grove went on a recreational outing and Lisa's daughter was with a relative in Oregon.
At approximately 4 p.m. on July 8, Todd and his wife decided it was necessary to take K.M. to the emergency room, where they expressed concerns about a sore on K.M.'s nose and several bruises on his jaw and one under his armpit and requested that Child Protection Services (CPS) be called. A doctor examined K.M. and called CPS who consulted with the family. K.M. left the hospital with his father and stepmother at approximately 7:10 p.m.
On July 9, Todd returned K.M. to Lisa who proceeded to bathe K.M. She testified that K.M. was continuing to act ill and wanted to be held for a prolonged period, which was unusual. When K.M.'s older sister arrived home, K.M. was excited to see her and briefly acted more lively. He opened a gift from his sister and the two played with a balloon. At dinner K.M. exhibited a normal appetite, but after dinner he acted tired and declined to color in a book his sister had provided to him. Lisa put him to bed an hour early.
The next morning, Monday, July 10, Lisa awoke at approximately 5:15 a.m. and checked on K.M. She found him awake, laying on his back with his eyes open, and noticed there was dry vomit in the bed. Lisa put K.M. in the bathtub and noticed that he was "very, very pale" and, unlike his usual behavior, did not enjoy his bath. K.M. was placed on Lisa and Grove's bed where he watched cartoons and, according to Grove, again attempted to throw up and his lips turned purple. Because she was the only one who could open the building, Lisa left K.M. with Grove and took her daughter with her to work, planning to come home as soon as she could.
After arriving at work, Lisa noticed that Grove had called and she returned his call at approximately 7:54 a.m. Grove told her that K.M. was worse than when she had left, he was worried about K.M., and he wanted Lisa to come home. Lisa spoke to her son and told him she loved him to which he responded "I too." Lisa testified that K.M. sounded "droopy" on the phone.
At around 8:20 a.m., a hysterical Grove called Lisa and demanded that she come home immediately. He told her that K.M. was not breathing right and that he was getting him ready to take him to the doctor. Lisa arrived home approximately ten minutes later. When she entered, K.M. was laying on the floor on a blanket, struggling to breathe. He appeared to be having convulsions and his eyes were rolling back into his head. Lisa called 911 at 8:54 a.m.
After arriving at the home, paramedics immediately transported K.M. to the hospital where Dr. Jay Hunter quickly diagnosed him as having a severe head injury, which he characterized as "shaken baby syndrome" that occurred in the last twenty-four hours. After Dr. Hunter determined that K.M. needed more specialized care than the hospital could provide, he was taken by helicopter to a hospital in Spokane. At approximately 3 p.m., doctors informed Lisa that K.M. was not going to survive. He was declared brain dead on July 11 at 9:20 a.m., the date on which his death certificate indicates was his date of death. Cardiac death occurred on the morning of July 12 when the organ donation procedure was performed.
The night of July 12, Grove and Lisa stayed at Grove's father's house during which time Grove tearfully told Lisa that something had happened to K.M. while he had been watching him on July 10. Lisa loudly asked Grove what had happened, causing Grove's father and stepmother to enter the room. Grove told them that he had placed K.M. on the counter, left him there to go get a brush, and K.M. had fallen off.
Approximately six months later, a grand jury indicted Grove for first degree felony murder, Idaho Code §§ 18-4001, 18-4002, 18-4003(d) . . . .
At trial, both the state and the defense presented the testimony of several medical experts. The emergency room doctor, Dr. Hunter, testified that his opinions regarding K.M.'s condition had changed after reviewing the autopsy report. He first testified that he did not believe that K.M. had "simple" shaken baby syndrome and testified that his injuries were consistent with either being ejected from an automobile or being beaten very severely. Dr. Hunter also testified that based on the autopsy report, it was his opinion that K.M. would have been immediately symptomatic after being beaten--including having a severe headache and confusion--and would have been close to unconsciousness. Thus, Dr. Hunter opined, K.M. could not have been fatally injured prior to the morning of July 10.
Dr. Marco Ross was employed as the county's medical examiner at the time of K.M.'s death and performed the autopsy of K.M.'s body. Dr. Ross testified at trial as the state's forensic pathologist. He stated that, in performing the autopsy, he noted bruising on the body, several hemorrhages in K.M.'s brain and eyes and in other parts of his body, and internal bruising. Dr. Ross indicated that he removed K.M.'s brain, and consistent with his office's procedure, sent it to Dr. Ross Reichard, a neuropathologist at the University of New Mexico. He testified that Dr. Reichard performed an autopsy of the brain and sent a report of his findings and conclusions to Dr. Ross. Dr. Ross summarized Dr. Reichard's report, which indicated that K.M.'s brain showed a bilateral subdural hemorrhage, bilateral subarachnoid hemorrhage, and several other injuries as well as a laceration in the corpus callosum "which is a part of the brain that connects the two separate hemispheres of the brain[.]" Dr. Ross then testified that:
[T]he laceration itself would sever some nerve bundles that travel between each side of the brain. And actually that injury, in and of itself, per se, may or may not have a lot of recognizable changes in a person who survives such as that.
But what's more significant is the fact that--that a tear did occur is indicative of a degree of force that was impacted upon the head that an individual who sustained a laceration of the corpus callosum as a result of blunt force impact, you know, probably would have been rendered unconscious or nearly unconscious at the time of the impact.
Dr. Ross explained that according to Dr. Reichard's report, K.M.'s brain injuries showed a lack of inflammation and therefore would have been inflicted shortly before death. He also testified that applying the force necessary to lacerate the corpus callosum would likely have caused K.M. to become unconscious at the time of impact. He testified that based on his examination, all of the injuries, with the exception of a few bruises on K.M.'s lower back and jaw, were caused at approximately the same time--which was less than three to four days before K.M.'s cardiac death on July 11, and more likely one to two days before. He indicated that K.M.'s abdominal injuries would have immediately caused him debilitating pain and that his brain injuries would have rendered him almost immediately unconscious or nearly so. On this basis, he opined that K.M. could not have suffered such an injury prior to going to bed the night before based on the testimony from Lisa and others about K.M.'s physical activity that night and on Monday morning as those activities would have been impossible had K.M. already suffered the beating which eventually caused his death. Dr. Ross specifically noted that K.M. would not have been able to speak on the phone with his mother.
On cross-examination, Dr. Ross testified that he had not performed any independent testing on K.M.'s brain. He testified that he would have generally been able to identify several of the hemorrhages, but not other injuries including a corpus callosum laceration which can only be identified through microscopic examination. Dr. Ross indicated that while it would be possible to review Dr. Reichard's findings by viewing the "recuts" with a microscope, he had not done so. He further testified that he did not recall if photographs had been taken of the tissues viewed by Dr. Reichard or whether he had reviewed any such photographs.
Based on his observations and the injuries described in Dr. Reichard's written report, Dr. Ross testified that it was his expert opinion that K.M.'s death was caused by homicide, specifically due to blunt impact injuries to his head which caused a subdural hemorrhage and secondary brain swelling. Again relying on Dr. Reichard's report, Dr. Ross concluded that the hemorrhages in K.M.'s brain were "acute, " meaning that the injury likely occurred "sometime immediately before death or within a day or two prior to death." Because it was determined that K.M. was brain dead at 9:20 a.m. on July 11, Dr. Ross opined that Grove had been alone with K.M. during the window in which K.M.'s head injuries likely occurred--from around 7 a.m. to approximately 8:45 a.m. on July 10.
The state also called Dr. Deborah Harper, a Spokane pediatrician with special training in child physical and sexual abuse and neglect who had been called to the hospital to examine K.M. before he died. After first describing her own observations of K.M.'s injuries when she saw him, examining his records, and speaking to his mother, Dr. Harper testified that she had relied on the autopsy reports of Dr. Ross and Dr. Reichard (without specifically telling the jury what those reports contained) and the surgery notes from the organ harvest procedure to come to a conclusion about the cause of K.M.'s death and his physical manifestations of injury prior to his death. Regarding K.M.'s injuries, she opined that
[K.M.] died as a result of two fatal injuries. The one that actually killed him first was the extremely serious brain injury that caused enormous brain swelling to the point that his brain pressure--the swelling was so great that the blood pumping from his heart could not get into the brain to feed the brain cells.
In addition to that, the pressure on the brain was pushing down through the big hole at the base here where your spinal cord goes, so he had a herniation in midbrain, which is really important for breath, and other things [were] being squished down through that.
In addition, he had really quite awful abdominal injuries. At the time of his organ harvest, the surgeon noted that he had bruising in his colon so the big--that's the large bowel. He had bruising there and bruising in his small intestine as well.
And even more than that, the--the root--that's called the mesentery. But the root that holds your intestines in place, and it's a very strong tissue. It's like--it's like really strong material, like canvas. And it's important because it holds the intestines where they belong so they don't get twisted up, and it--the blood vessels and nerves come through it. That had a rip in it. And that's just enormous force, and that was--we always suspect when children have a bad brain injury, they may have abdominal trauma. I was quite surprised myself at the extent of that major, major abdominal trauma that [K.M.] suffered.

         When asked about her opinion as to when the injuries that caused his death occurred, she stated:

When these injuries occurred, he immediately looked awful. He would have been unconscious or semi-conscious, limp, not--probably not breathing well, perhaps still breathing at that time. But he would have immediately--on the blows that dealt these injuries, would have been obviously critically ill.
She also indicated her opinion that his behavior on the morning of July 10, as testified to by his mother and sister, was not consistent with having already received the injuries that would eventually kill him. She also opined that falling off the counter would not have caused the catastrophic injuries K.M. sustained, nor could such a fall have exacerbated an existing injury and caused it to become fatal because the type of injury that actually killed K.M. was a single injury that caused immediate swelling of the brain. Dr. Harper then addressed whether K.M. could have had a delayed response to the injuries to his brain--for example, a slow bleeding in his brain that would not have produced physical symptoms for a few days after the injury. When asked by the defense attorney whether she was aware that there are studies and reports in various medical journals indicating that there can be a delayed response to subdural hematomas, Dr. Harper answered:
There can be a delayed response to subdural hematomas. In [K.M.'s] case, he [had] subdural hematomas, which are interesting that they're there, but that wasn't his main brain injury. His main brain injury was actually to the physical solid part of his brain.
Grove called Dr. Jonathan Arden, a forensic pathologist based in Virginia, to testify as an expert. Dr. Arden testified that he had reviewed, among other things, the autopsy report, including the brain examination report prepared by Dr. Reichard, recuts of the microscopic slides of tissue from K.M.'s body and brain that had been used by Dr. Reichard and Dr. Ross in conducting the autopsy, and autopsy photographs. He testified that based on his review of these materials, he agreed with Dr. Ross that K.M.'s death was the result of homicide and caused by blunt impact injuries to his head--specifically referencing a subdural hemorrhage and brain swelling, but disagreed with Drs. Ross and Harper as to the timing of the injuries, stating that he believed that the significant injuries to K.M.'s head and abdomen had been inflicted at least three days prior to his death--on either July 8 or 9. He testified that his opinion on this matter had come largely from microscopic examination of relevant tissues and his observations as certain body processes which are used to date injuries.
Dr. Arden also testified that he disagreed with Dr. Reichard's conclusion that there was a laceration of the corpus callosum, rather he believed that what Dr. Reichard had perceived as a laceration was merely something that occurred during the processing of K.M.'s brain after his death. He testified that the existence of a laceration would have significant impact on whether a person would be rendered immediately unconscious or not. He testified that it was his opinion that K.M. could have engaged in all of the activities testified to--including, among other things, playing with his sister when she returned from her trip and sitting in his high chair and eating dinner--having already sustained the head injuries that would lead to his death.
Dr. Arden also opined that K.M. having thrown up in bed, being pale, and dry-heaving on the morning of July 10 are all possible symptoms of the type of head injury and abdominal injuries that Dr. Arden believed that K.M. had sustained and that it was reasonable that having sustained these injuries, K.M. would not have immediately shown symptoms and that his symptoms could have waxed and waned over a period of time. He did admit that if he assumed that the injuries had occurred on Monday morning (which he did not agree with due to his dating of the injuries through viewing the microscopic slides), it would have been consistent with his injuries for K.M. to become immediately unconscious. Dr. Arden further indicated his opinion that many of K.M.'s abdominal injuries were older and therefore there was no reason to conclude that K.M. would have been showing signs of being in excruciating pain from those injuries on July 8 or 9.

         The jury found Grove guilty of first degree felony murder.

         This Court affirmed Grove's conviction on direct appeal. Relevant to the present appeal, we held that trial counsel's failure to object on confrontation grounds to evidence from Dr. Ross which relied on Dr. Reichard's report did not constitute fundamental error. Grove, 151 Idaho at 492-93, 259 P.3d 638-39.

         Grove filed a petition for post-conviction relief alleging: (1) violation of his constitutional rights; (2) prosecutorial misconduct at trial; (3) a violation of due process because jurors were sleeping during the presentation of evidence; (4) ineffective assistance of counsel for failing to object to the prosecutorial misconduct alleged in the second cause of action; and (5) ineffective assistance of counsel for failing to take thirty-three different actions at trial that Grove concluded should have been taken. The parties filed cross-motions for summary disposition. The district court denied Grove's motion and granted the State's motion in part and denied it in part. The case proceeded to an evidentiary hearing, after which the district court denied the remaining claims. Grove filed a timely appeal from the final judgment denying his petition.

         II.

         ANALYSIS

         On appeal, Grove claims: (1) the district court erred in dismissing the Confrontation Clause claim; (2) the district court erred in dismissing the prosecutorial misconduct claim; (3) the district court erred in summarily dismissing certain ineffective assistance of trial counsel claims; (4) the district court erred in denying the claims of ineffective assistance of counsel after an evidentiary hearing with respect to Grove's testimony, Dr. Arden's testimony as an expert witness for the defense, and deficient closing and rebuttal arguments; and (5) the cumulative effect of the totality of the deficient performance was prejudicial. We will first address the issue of raising constitutional violations in an action for post-conviction relief. Second, we will address those claims summarily dismissed by the district court. Finally, we will address those claims denied after the evidentiary hearing.

         A. Constitutional Claims

         In his petition, Grove pled the Confrontation Clause violation claim and claims of prosecutorial misconduct as direct, stand-alone constitutional claims. The district court determined that the claims were not properly brought in post-conviction proceedings. We will address each in turn.

         1. Confrontation Clause

         In his petition for post-conviction relief, Grove asserted that his right to confront witnesses was violated in the criminal trial when witnesses called by the State testified about neuropathology tests and examination results which were relied upon and incorporated into the autopsy report for purposes of determining the cause and manner of K.M.'s death. Grove contended that the State's medical witnesses relied on the results of the neuropathology testing but had neither performed nor had personal knowledge of the neuropathology testing or examination. Grove asserted ...


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