Opinion No. 49
from the District Court of the Fifth Judicial District of the
State of Idaho, in and for Jerome County. Hon. Robert J.
Elgee, District Judge.
judgment of the district court is reversed.
Kenneth K. Jorgensen, Deputy Attorney General, Boise, argued
R. Lehtinen, Deputy State Appellate Public Defender, Boise,
argued for respondent.
an appeal out of Jerome County from a judgment in a
post-conviction proceeding granting the petitioner a new
trial in his criminal case. We reverse the judgment of the
Dean Charboneau murdered his ex-wife, Marilyn Arbaugh, on
July 1, 1984. Her two daughters, Tiffnie and Tira, were
present when he murdered their mother, and they both
testified during his trial. The facts surrounding the murder
were as follows:
On June 21, 1984, Jaimi went to the cafe where Marilyn
worked. They left in Marilyn's car. There is some dispute
whether Marilyn went with Jaimi voluntarily. The next day
Marilyn reported to the police that Jaimi had kidnapped and
raped her and had stolen her car. There is evidence that
Jaimi travelled to Nevada after June 21. The burned remains
of Marilyn's car were found in southern Idaho in late
June 1984. On June 25, 1984, Jaimi was charged in Jerome
County, Idaho with first degree kidnapping of Marilyn and
grand theft of her car.
On June 28, 1984, Jaimi purchased a .22 caliber rifle from a
hardware store in Gooding, Idaho. About mid-morning on
Sunday, July 1, 1984, Marilyn returned to her residence on a
ranch near Jerome, after being gone since the evening before.
Some time after 11:00 o'clock that morning Marilyn went
out to check some horses in a corral near her home. Shortly
after that Marilyn's daughter Tiffnie heard shots
outside, grabbed Marilyn's .22 pistol, and went to see
what had happened. She found her mother sitting on the ground
in the barn with blood on her. Jaimi was standing close to
Marilyn with a .22 caliber rifle pointed at Marilyn. Tiffnie
asked Jaimi to leave and told him she was going to call the
police. Jaimi told Tiffnie that he would take Marilyn to the
doctor. Both Marilyn and Jaimi told Tiffnie to leave.
At 11:38 that morning Tiffnie called the Jerome County
Sheriff's office and said that Jaimi had shot her mother.
Tiffnie then told her sister Tira about the shooting, and
they both got dressed. They heard more shots and ran outside
where they hid behind a sheep wagon and called to their
mother. Tiffnie had her mother's .22 caliber pistol with
her, and it accidentally discharged behind her. She ran into
the house, hid the gun, returned to the sheep wagon, and then
ran to the barn. Tira followed close behind. Marilyn was
lying on her back with her arms over her head. The girls ran
back to call for an ambulance. At 11:42 a.m. Tira telephoned
for assistance and reached the Jerome County Sheriff's
office. She told them to get an ambulance and that her mother
was dying. When the sheriff's deputies arrived at the
scene, they found Marilyn's body in the barn and located
Jaimi in a field near the barn with a .22 caliber rifle lying
nearby. Jaimi was arrested and charged with first degree
murder. At the time of his arrest, Jaimi acknowledged that he
had shot Marilyn, although he stated that he did so because
she was going to shoot him.
State v. Charboneau, 116 Idaho 129, 133, 774 P.2d
299, 303 (1989).
15, 2011, Charboneau filed his fifth petition for
post-conviction relief, contending that on March 18, 2011, he
learned of evidence of a Brady violation and an
ineffective assistance of counsel claim. In his supporting
affidavit, he contended that on March 18, 2011, a
correctional officer where Charboneau was incarcerated
brought him a large envelope containing various documents
upon which this post-conviction petition is based. The
significant documents are described below.
letter and envelope.
large envelope contained a photocopy of a letter written by
Tira to Judge Becker ("Tira Letter"), who presided
over Charboneau's criminal trial, and a photocopy of the
envelope in which it was allegedly mailed to Judge Becker. In
the letter, she claimed that she had been pressured by the
prosecutor and a detective to testify falsely at
Charboneau's trial and that it was Tiffnie, not
Charboneau, who fired the fatal shot killing their mother.
Tiffnie apparently could not be located with respect to these
proceedings. The envelope bore a postmark from Bruneau,
Idaho, dated September 7, 1989, and a return address of 622
Highland Rd., Jerome, Idaho.
the letter and envelope were photocopies, not the originals.
Who made the photocopies is unknown, and is it not known when
those photocopies were made or who provided them.
Charboneau's expert testified that "all photocopies
can be manipulated in some fashion." The expert was not
asked whether the letter and envelope were the
first-generation photocopies of the originals, but she
testified that the forged Orville Balzer statement discussed
below was about a tenth-generation photocopy.
had married Charboneau's half-brother on October 13,
1988, when she was eighteen years of age, and she had passed
away on September 24, 1998. The letter stated, "I am in
Bruneau Idaho for a cowboy benefit street dance where the
Pinto Bennetts band is providing the music" and "I
will be back in Jerome early next week." The street
dance did not occur until ten days after the date of the
letter. Tira's husband testified that in September of
1989 he and Tira were living on a ranch in Wells, Nevada;
that he was working on the ranch and she usually worked with
him; that they did not have a car; that he had never been to
a street dance in Bruneau; that during their marriage he and
Tira had never spent the night apart except for one week
during Christmas of 1989; that she signed the letter with her
maiden name, which she had not used as long as he had known
her; and that by September 1989 they had a child. The
district court wrote, "For a variety of reasons, the
Court does not accept (and in fact rejects) his testimony,
" but the court did not state what those reasons were.
statements in the Tira Letter contradict Charboneau's
testimony in key respects, and the forensic evidence
contradicts both of their versions.
was fourteen years of age when her mother was killed, and her
sister Tiffnie was sixteen years of age. At Charboneau's
criminal trial, Tira testified that on the day of her murder,
Marilyn had taken a bath and gone out to make a telephone
call to her mother and father. They did not have a telephone
in their house. The telephone was in the nearby shop that was
used by the man who farmed the land. Tiffnie was on her bed
reading, and Tira was going to bathe after her mother. As
Tira was running the bath water, her mother came back into
the house and asked Tira if she had put the horses in a
different corral. Tira stated that she had not, and her
mother went back outside. The water was still running, Tira
heard a yell, and then heard Tiffnie jump off her bed onto
the floor. Tira continued bathing, and a short while later
Tiffnie came into the bathroom and said really fast in a
scared, shaky tone of voice: "Tira, Jaimi's outside
and he shot Mom. Get out of the bathtub and hurry up."
ran into her room and hurriedly put a pair of pants and a
shirt, which were too big for her because they belonged to
Tiffnie's boyfriend, Bart, who lived with them. She then
put on his boots that were also too big. She testified that
Tiffnie grabbed their mother's .22 caliber pistol while
Tira was dressing, although she did not actually see Tiffnie
grab the pistol. Tira stated that the pistol was kept behind
the radio on their mother's bedstead and that she had
seen it there the night before.
A. Well, we ran out behind the sheep wagon. Tiffy told me not
to go past it, and we were yelling but-
Q. What were you yelling?
A. We were just-well, I just-we couldn't really hear
anything or nothing. And Tiffy was kind of in front of me,
and I was off to the side. My dog was sitting right next to
me, and Tiffy was shaking really bad and she fired a shot,
scared me, and it just went, almost hit my dog. And I heard
the gravel hit the side of the barn and everything and Tiffy
was really nervous, so we went back into the house. We went
back into the house.
Q. Let me interrupt you. Before you went back into the house,
what were you yelling as you were standing out by the sheep
A. We were just yelling to Mom. We were kind of being quiet,
but we was yelling to mom. We was, you know, but we
wasn't getting any reply, you know. We wasn't getting
Q. No reply?
cross-examination, Tira gave more information regarding the
shot fired by Tiffnie:
Q. And did Tiffy have the pistol in her possession at that
time [when they went outside the first time]?
Q. What did she do with it?
A. She just carried it out there.
Q. And is that when the shot went off the first time you when
[sic] [went] to the sheep wagon?
A. Yes. We was behind the sheep wagon. Her hands were behind
her back and she shot once.
Q. They you went back into the house?
A. Yes. We was scared. So we went back into the house.
they went back into the house, Tira changed into her own
clothing. She testified that while doing so, she heard more
Q. Okay. Did anything else happen while you were in the house
A. Well, yes. Right when I was putting my leg in my pants we
heard several more shots, about five or so, five.
Q. You would say it's about five shots?
Q. It would have been more or less?
Q. Are you certain, you're not certain of the number?
A. No. I was too scared to be counting them.
testified that she and Tiffnie ran back out of the house to
the alleyway in the horse barn, where they found their mother
lying on the ground. Tira was behind Tiffnie, so Tiffnie was
the first one into the barn. Tira testified what she saw as
Q. Where was Tiffy?
A. Tiffy had my mom in her arms, and Tiffy pulled up her
shirt or something, and we could see a lot of blood and stuff
on her chest. And I just brushed my hand across her ...