VANCE E. THUMM, Petitioner-Appellant,
STATE OF IDAHO, Respondent.
OPINION. THE OPINION FILED ON FEBRUARY 22, 2019 IS HEREBY
from the District Court of the Fourth Judicial District of
the State of Idaho, Ada County. Samuel A. Hoagland, District
district court's grant of summary disposition is
Law Offices Ltd., Boise, attorneys for appellant. Greg S.
Lawrence G. Wasden, Idaho Attorney General, Boise, attorney
for respondent. Mark W. Olson argued.
Nature of the Case
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. 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.
Factual and Procedural Background
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.
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.
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.
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.
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.
Issues on Appeal
Did the district court err in summarily dismissing
Thumm's ineffective assistance of counsel claims?
Did the district court err in summarily dismissing
Thumm's Brady claim?
Did the district court err in summarily dismissing
Thumm's prosecutorial misconduct claims?
Did Thumm demonstrate cumulative error?
Standard of Review
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.
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)).
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).
Ineffective Assistance of Counsel
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.
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,
Improper Joinder Claims.
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).
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
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).
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)).
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
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
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.
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.
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
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 excited?
Q: Okay. Did she appear ...