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Marr v. State

Supreme Court of Idaho

December 20, 2017

JOHN JOSEPH MARR, Petitioner-Respondent,
v.
STATE OF IDAHO, Respondent-Appellant.

         2017 Opinion No. 126

         Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John R. Stegner, District Judge.

         District court order granting petition for post-conviction relief, affirmed.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for appellant. Kenneth K. Jorgensen, Deputy Attorney General argued.

          Ferguson Durham, PLLC, Boise, for respondent. Craig H. Durham argued.

          BURDICK, CHIEF JUSTICE.

         The State of Idaho appeals the district court's order granting John Joseph Marr's petition for post-conviction relief based on ineffective assistance of counsel at trial. Marr was arrested and charged with felony attempted strangulation and domestic battery with a traumatic injury. A jury found Marr not guilty as to the attempted strangulation but guilty of domestic battery with a traumatic injury. Marr's direct appeal was unsuccessful and he filed a petition for post-conviction relief based on ineffective assistance of counsel at both trial and at sentencing. After a post-conviction evidentiary hearing, the district court found Marr's attorney was ineffective at trial for failing to discover and admit evidence of the victim's reputation for belligerence and aggression when intoxicated and for failing to elicit testimony from the victim about whether she had consumed alcohol before testifying. The district court granted Marr's petition for post-conviction relief as to trial, vacating Marr's conviction. The district court denied Marr's petition for post-conviction relief as to sentencing. The Court of Appeals reversed the district court's grant of post-conviction relief. We granted Marr's petition for review, and we affirm the district court's order granting Marr's petition for post-conviction relief.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This case involves a physical altercation between John Joseph Marr (Marr) and his wife of one week, Marci Jones (Jones) that took place during the hours between September 24, 2011, and September 25, 2011. Following the altercation, Marr called the police. Officer Alexander of the Coeur d'Alene Police Department interviewed Jones and noticed she had a swollen lip and face, bruises on her neck, chest, and arm, and bloodshot eyes. Jones admitted she had been drinking alcohol all day. Jones told Officer Alexander that she and Marr had been arguing because Jones stated she wanted to leave the house, and Marr responded by grabbing her neck and throwing her on the bed. Jones stated Marr then choked her until she passed out and that she bit Marr until he let go of her. Later, Jones again stated she wanted to leave, and Marr responded by showing Jones a closed fist, asking if she "wanted one of these." Jones stated Marr then punched her in the face, after which she told Marr to call the police and he did.

         When Officer Alexander interviewed Marr, he heard a different version of what had happened. Marr stated Jones had been drinking alcohol all day, which was common, and that Jones had become belligerent. Marr asked Jones to turn down the music which sent Jones into a rage. In an attempt to restrain Jones and protect himself, Marr grabbed Jones by the wrist and pulled her onto the bed with him. Marr held Jones down in a modified choke hold to restrain her, until she bit Marr's arm. Marr then held Jones down so she could not hit him. At some point, Marr called Jones's daughter and then the police. Marr denied punching Jones and claimed both his and Jones's injuries occurred while he was restraining her and protecting himself.

         Marr was arrested and charged with attempted strangulation and domestic battery with a traumatic injury. A preliminary hearing was held on October 6, 2011, with Jones serving as the State's only witness. Jones testified to a different version of events than she had told police. Jones did not recall arguing with Marr or Marr asking her to turn down the music. Jones stated Marr choked her off and on for a couple hours, and his watch caused her bruising. Jones never mentioned Marr punching her in the face. Linda Chesebro, who represented Marr at the hearing, asked Jones about the inconsistencies between what she told officers and what she testified to. Jones stated she did not have a good memory, but what she told officers would have been the truth. When Ms. Chesebro continued to press Jones, Jones changed her story multiple times. Jones stated she did not recall Marr asking if she "wanted one of these" while displaying a closed fist. Jones also stated she did not ask Marr to call the cops; rather, Marr had stated he called the cops because Jones bit him.

         At the conclusion of the preliminary hearing, the judge bound Marr over to face the two felony charges in district court. Sarah Sears of the Kootenai County Public Defender's Office was appointed to represent Marr. At trial, Jones's testimony was similar to her story at the preliminary hearing, though there were slight changes. Additionally, Jones mumbled and appeared shaky on the stand, and Marr told Ms. Sears that Jones appeared to be intoxicated. However, Ms. Sears failed to get a response from Jones about whether Jones had been drinking alcohol before testifying. Judge Hosack instructed the jury to consider self-defense as a potential defense to the charges. The jury found Marr not guilty of attempted strangulation, but guilty of domestic battery with a traumatic injury.

         Judge John T. Mitchell sentenced Marr to the maximum ten years in prison with eight years fixed. Marr appealed, arguing his sentence was excessive and that his counsel was ineffective. The Idaho Court of Appeals upheld the sentence and did not address Marr's claim of ineffective assistance of counsel, stating he should pursue it through a petition for post-conviction relief. State v. Marr, No. 39918, 2013 WL 6497834, at *2-3 (Idaho Ct. App. Dec. 9, 2013).

         Marr then filed for post-conviction relief in district court, claiming his counsel was ineffective at trial and at sentencing for several reasons, including failing to discover and admit evidence relevant to Marr's claim of self-defense and failing to cross-examine Jones about whether she had consumed alcohol before testifying. At a post-conviction evidentiary hearing, Marr's attorney, Craig Durham, questioned Ms. Sears about her representation of Marr at trial, specifically asking if she had investigated Jones's reputation for aggressiveness and belligerence when intoxicated. Ms. Sears stated she was aware of Jones's criminal history, but did not interview any witnesses concerning Jones's reputation for being belligerent or aggressive when intoxicated. Ms. Sears stated, "I can't say that I made a tactical decision to not include that evidence because I don't ...


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