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Thumm v. State

Supreme Court of Idaho

February 22, 2019

VANCE E. THUMM, Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent.

          Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Samuel A. Hoagland, District Judge.

         The district court's grant of summary disposition is affirmed.

          Silvey Law Offices Ltd., Boise, attorneys for appellant. Greg S. Silvey argued.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for respondent. Mark W. Olson argued.

          BEVAN, JUSTICE

         I. Nature of the Case

         In 2009, a jury convicted Vance Thumm of aggravated battery or aiding and abetting aggravated battery and of being a persistent violator of the law. Thumm pursued a direct appeal, but was unsuccessful. In 2013, through counsel, Thumm petitioned for post-conviction relief to which the State responded by filing a motion for summary disposition. The district court eventually granted the State's motion and dismissed the post-conviction petition. Thumm now appeals alleging: (1) ineffective assistance of counsel at trial, sentencing, and on appeal; (2) a Brady violation; (3) prosecutorial misconduct; and (4) cumulative error. We affirm the district court's grant of summary disposition.

         II. Factual and Procedural Background

         Vance Thumm, Paris Davis, Frankie Hughes, Jeremy Steinmetz, victim Deven Ohls, and several other people attended an early morning party in a motel room rented by Thumm. At some point during the party Ohls was attacked, allegedly by both Hughes and Thumm. Hughes later admitted to stabbing Ohls in the buttock. After the prolonged attack, Ohls suffered significant bleeding, a concussion, two black eyes, a complex laceration to the lip, a fractured nose, and the stab wound.

         The State charged Thumm with aggravated battery under Idaho Code section 18-907 and with being a persistent violator under Idaho Code section 19-2514. Three others, including Thumm's girlfriend, Davis, were also charged in connection to the altercation. Davis was charged with one count of solicitation or destruction, alteration or concealment of evidence under Idaho Code section 18-2603, and one count of accessory to aggravated battery under Idaho Code section 18-907. Following a motion by the State, Thumm's case was joined with that of Hughes and Davis, though Thumm was ultimately tried in a joint trial with only Davis.

         Thumm was originally represented by Nick Wollen, a public defender at the Ada County Public Defender's Office. In September 2009, Thumm became dissatisfied with Wollen and retained a private attorney, Virginia Bond, less than two months before the trial. After a four-day trial, the jury found Thumm guilty of aggravated battery and of being a persistent violator of the law.

         Following trial, Thumm became dissatisfied with Bond as well, specifically for failing to provide discovery, so Bond withdrew as counsel. The court then appointed Anthony Geddes as Thumm's conflict counsel. On March 10, 2010, the court sentenced Thumm to a unified term of forty years, fifteen of which were determinate.

         Thumm timely appealed from the district court's judgment of conviction and also filed a motion for reconsideration of sentence, which was denied by the district court. On August 19, 2013, Thumm, through counsel, petitioned for post-conviction relief. More than three years later the State filed an answer to the petition, a motion for summary disposition, and a motion to take judicial notice of the jury trial and preliminary hearing transcripts and the jury instructions. Thumm's counsel then filed an amended post-conviction petition, to which the State responded. Along with the response, the State also filed another motion for summary disposition, which was granted by the district court on June 16, 2017. Thumm now appeals.

         III. Issues on Appeal

         1. Did the district court err in summarily dismissing Thumm's ineffective assistance of counsel claims?

         2. Did the district court err in summarily dismissing Thumm's Brady claim?

         3. Did the district court err in summarily dismissing Thumm's prosecutorial misconduct claims?

         4. Did Thumm demonstrate cumulative error?

         IV. Standard of Review

         A petition for post-conviction relief initiates a civil, rather than criminal, proceeding. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). Like the plaintiff in any civil action, the applicant must prove, by a preponderance of the evidence, the allegations upon which the request is based. State v. Abdullah, 158 Idaho 386, 417, 348 P.3d 1, 32 (2015) (citing I.C. § 19-4907). The application for post-conviction relief differs from a complaint in an ordinary civil action in that it must contain much 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). Id. (citing Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002)). The application must present admissible evidence supporting its allegations, or it will be subject to dismissal. I.C. § 19-4903.

         Idaho Code section 19-4906 authorizes summary dismissal of a post-conviction petition. Summary dismissal of an application is the procedural equivalent of summary judgment under Idaho Rule of Civil Procedure 56. "Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact that, if resolved in the applicant's favor, would entitle the applicant to the relief requested." Yakovac, 145 Idaho at 444, 180 P.3d at 483.

On review of a dismissal of a post-conviction relief application without an evidentiary hearing, the Court must determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file.

Id. Inferences should be liberally construed in favor of the petitioner. Charboneau v. State, 140

         Idaho 789, 792, 102 P.3d 1108, 1111 (2004). Constitutional issues are purely questions of law over which this Court exercises free review. Abdullah, 158 Idaho at 417, 348 P.3d at 32. "Essentially, the task of this Court 'is to determine whether the appellant has alleged facts in his petition that if true, would entitle him to relief.'" Charboneau, 140 Idaho at 792, 102 P.3d at 1111 (quoting Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283, 1285 (1990)).

         V. Analysis

         One who has been convicted of, or sentenced for a crime may petition for post-conviction relief if any one of several statutorily defined conditions is met. I.C. § 19-4901(a). Among those conditions, and relevant here, are whether the conviction or sentence violated the United States constitution or the Idaho constitution, or if the conviction or sentence is subject "to a collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy . . . ." I.C. § 19-4901(a)(1), (a)(7).

This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of an appeal from the sentence or conviction. Any issue which could have been raised on direct appeal, but was not, is forfeited and may not be considered in post-conviction proceedings, unless it appears to the court, on the basis of a substantial factual showing by affidavit, deposition or otherwise, that the asserted basis for relief raises a substantial doubt about the reliability of the finding of guilt and could not, in the exercise of due diligence, have been presented earlier.

I.C. § 19-4901(b).

         A. Ineffective Assistance of Counsel

         A majority of Thumm's claims involve allegations of ineffective assistance of counsel. Claims for ineffective assistance of counsel are properly raised in a post-conviction setting. See Matthews v. State, 122 Idaho 801, 806, 839 P.2d 1215, 1220 (1992). The right to counsel in criminal actions is guaranteed by the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Idaho Constitution. Abdullah, 158 Idaho at 417, 348 P.3d at 33 (citing Murray v. State, 156 Idaho 159, 164, 321 P.3d 709, 714 (2014)). This Court employs the Strickland two-prong test to determine whether a defendant in a criminal case received effective assistance of counsel. Mitchell v. State, 132 Idaho 274, 277, 971 P.2d 727, 730 (1998) (referencing Strickland v. Washington, 466 U.S. 668 (1984)). Under Strickland, an applicant for post-conviction relief must demonstrate: (1) counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the outcome would have been different. Strickland, 466 U.S. at 669. These prongs are known more precisely as (1) deficient performance and (2) resulting prejudice. Id. at 687.

         When evaluating a claim for ineffective assistance of counsel, "this Court does not second-guess strategic and tactical decisions . . . unless the decision is shown to have resulted from inadequate preparation, ignorance of the relevant law or other shortcomings capable of objective review." Yakovac, 145 Idaho at 444, 180 P.3d at 483 (citing Pratt v. State, 134 Idaho 581, 584, 6 P.3d 831, 834 (2000)). There is a strong presumption that counsel's performance was within the range of acceptability, particularly as to things like defense counsel's choice of witnesses, manner of cross-examination, and lack of objections to testimony, which are generally considered to fall within the realm of tactical or strategic decisions. Giles v. State, 125 Idaho 921, 924, 877 P.2d 365, 368 (1994).

         1. Improper Joinder Claims.

         Thumm argues that his trial counsel were ineffective for failing to oppose the State's motion for joinder of Thumm's and Davis's cases (claim as to Wollen), or, alternatively, for failing to move to sever the cases (claim as to Bond). Thumm maintains that had counsel done so, either the objection or the motion would have been successful, since joinder with Davis's case violated the rule set forth in Bruton v. United States, 391 U.S. 123 (1970).

         Joinder of two or more defendants is proper if "they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." I.C.R. 8(b). Actions properly joined under Idaho Criminal Rule 8(b) may be severed under Idaho Criminal Rule 14, if conducting a joint trial would be prejudicial. State v. Gamble, 146 Idaho 331, 337, 193 P.3d 878, 884 (Ct. App. 2008); I.C.R. 14. As provided by Idaho Criminal Rule 14, a "court may order the state to elect between counts, grant separate trials of counts, grant severance of defendants, or provide whatever other relief justice requires."

         The district court found that both Thumm and Davis participated in the same series of acts constituting the offenses charged: Thumm committed a battery and Davis encouraged Thumm to conceal the evidence by destroying bloody clothing. These findings are supported by the record. Thus, Thumm's charges were related enough to Davis's charges to warrant joinder. See States v. Estes, 111 Idaho 423, 427, 725 P.2d 128, 132 (1986) (holding that joinder of offenses was proper because they were part of one continuing action-the individual offenses were not committed at different times, in different places, nor with different actors or circumstances).

         A criminal defendant bears the burden to show prejudice in making a motion to sever under Idaho Criminal Rule 14. State v. Caudill, 109 Idaho 222, 226, 706 P.2d 456, 460 (1985). Such motions are committed to the sound discretion of the trial court. Id.; I.C.R. 14. "When considering whether an attorney's failure to file a motion . . . constitutes deficient performance, the Court examines the probability of success of such a motion in order to determine whether counsel's decision was within the wide range of permissible discretion and trial strategy." Estrada v. State, 143 Idaho 558, 561, 149 P.3d 833, 836 (2006) (internal citation omitted); see also State v. Porter, 130 Idaho 772, 794, 948 P.2d 127, 149 (1997); State v. Dunlap, 155 Idaho 345, 385, 313 P.3d 1, 41 (2013). However, "'[w]here the alleged deficiency is counsel's failure to file a motion, a conclusion that the motion, if pursued, would not have been granted by the trial court, is generally determinative of both prongs of the [Strickland] test.'" Dunlap, 155 Idaho at 385, 313 P.3d at 41 (2013) (quoting State v. Payne, 146 Idaho 548, 562, 199 P.3d 123, 137 (2008)).

         Two witnesses at trial, Jeremy Steinmetz and another witness involved in the fight, Frankie Hughes, testified that directly after the attack in the hotel room, co-defendant Davis told Thumm he was "going to prison." Steinmetz also testified that a few minutes later, Davis was "still freaking out" and told both Hughes and Thumm to burn the clothing they were wearing because it could be used as evidence against them. Based on our analysis below, we conclude that a motion to sever would not have been granted, and Bond was therefore not ineffective as to this issue. For similar reasons, Wollen was not ineffective either.

         The district court dismissed Thumm's petition as to the joinder issue on two separate grounds. First, the court found that Davis's statements were not hearsay and therefore the statements would have been admitted against Thumm in a separate trial. As such, Thumm suffered no prejudice having those statements admitted in a joint trial. Second, the court found that there was no violation of the principles announced in Bruton, since Davis's statements were non-testimonial.

         Addressing the hearsay question first, we hold that the district court was correct. The testimony Hughes and Steinmetz presented regarding Davis's statements would have been admissible at a separate trial based on exceptions to the hearsay rule. Thus, there is no compelling evidence of a prejudicial result or that Thumm was denied a fair trial. Thumm's trial counsel was not ineffective for failing to object to joinder or for failing to move for severance.

         Steinmetz and Hughes both testified that after the altercation in the hotel room, Davis told Thumm he was "going to prison." This testimony was admitted to prove that Thumm's co-defendant, Davis, had knowledge that Thumm committed a felony, a necessary element of her charge of accessory to the commission of a felony. Hughes also testified that Davis told Thumm and Hughes, directly after the attack, that they should burn their clothes, presumably because of the blood on them.

         Thumm argues that Hughes and Steinmetz's testimony constituted hearsay, and had the court not held that joinder was proper, the testimony would have been inadmissible. Thumm claims that neither statement would have been admissible as excited utterances in a separate trial, because witnesses testified that Davis was not excited when she made the statements. Thumm cites first to the testimony of Steinmetz in the trial transcript to show that Davis was not excited:

Q: How do you know that the individuals in the backseat heard [Davis's] statement?
A: She was speaking kind of loud.
Q: Okay. She excited?
A: Not excited. Freaked out about it.

         Thumm then cites to Hughes' testimony to suggest Davis was not excited:

Q: Did [Davis] appear ...

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