Opinion No. 8
from the District Court of the Second Judicial District,
State of Idaho, Nez Perce County. Hon. Carl B. Kerrick,
dismissing, in part and denying in part, petition for
post-conviction relief, affirmed.
Benjamin, McKay & Bartlett, LLP; Dennis Benjamin and
Deborah Whipple, Boise, for appellant.
Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen,
Deputy Attorney General, Boise, for respondent.
GRATTON, Chief Judge.
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.
AND PROCEDURAL BACKGROUND
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,
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
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
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
[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
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
[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
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.
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
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.
jury found Grove guilty of first degree felony murder.
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.
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.
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.
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.
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 ...