Opinion
Docket No. 24886.
Filed: July 12, 2000. The decision of the district court dismissing the second amended petition for post-conviction relief is affirmed. See Raudenbaugh v. State, ___ Idaho ___, No. 26946, April 2, 2001.
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. James F. Judd, District Judge.
Order denying request for production of physical evidence vacated; order summarily dismissing application for post-conviction relief affirmed in part and vacated in part, and case remanded.
Ronaldo A. Coulter, State Appellate Public Defender; Molly J. Huskey, Deputy Appellate Public Defender, Boise, for appellant. Molly J. Huskey argued.
Hon. Alan G. Lance, Attorney General; T. Paul Krueger II, Deputy Attorney General, Boise, for respondent. T. Paul Krueger II argued.
Thomas Dale Raudebaugh was convicted of second degree murder following a jury trial. In an application for post-conviction relief he alleged, among other things, that his defense attorney was ineffective for failure to have the murder weapon, a knife, independently examined for fingerprints after the State's expert found no prints on it. In the post-conviction action, the district court denied a discovery motion by Raudebaugh to compel the State to make the knife and Raudebaugh's fingerprint exemplar available for an independent fingerprint examination. The district court thereafter summarily dismissed Raudebaugh's post-conviction action. On appeal, this Court is required to determine what showing must be made by a post-conviction applicant in order to compel production of evidence by the State where the evidence is sought to substantiate a claim that the criminal defense attorney provided ineffective assistance by failing to have the evidence examined or tested in the criminal proceedings.
FACTS AND PROCEDURAL HISTORY
Raudebaugh was found guilty by a jury of second degree murder and use of a deadly weapon in the commission of the crime. An appeal was taken from the conviction, which was affirmed in State v. Raudebaugh, 124 Idaho 758, 760, 864 P.2d 596, 598 (1993). The factual background of the case was set out by the Idaho Supreme Court in its opinion as follows:
Thomas D. Raudebaugh and his girlfriend, Barbara Winkler, went to William David Gibbs's residence to collect a debt from Gibbs. Gibbs was not at home, but Kevin Aaseby, an acquaintance of Gibbs, told Raudebaugh that Gibbs would return later. Winkler and Raudebaugh returned to Gibbs's residence later that evening. Gibbs and Raudebaugh had an argument that started in the back bedroom where Gibbs and Raudebaugh were alone, but later moved to the living room where Winkler and Gibbs's roommate, Scott Gill, were present. Raudebaugh admits that he took an iron pipe away from Gibbs and struck Gibbs with it.
After Raudebaugh and Winkler left Gibbs's residence, Gill called for emergency help. When the authorities arrived, Gibbs was dead. The police found a knife underneath Gibbs's body and an autopsy revealed that Gibbs's [sic] died from a deep stab wound in the back of his neck.
When the police arrived, Gill and Aaseby were present. Gill and Aaseby initially told the police that they did not see any of the events leading to Gibbs's death. Later at the police station, Gill and Aaseby each changed their statements to indicate they had seen at least part of the altercation between Raudebaugh and Gibbs.
The state charged Raudebaugh with first-degree murder. At trial, Winkler and Gill each testified that they saw the portion of the fight that took place in the living room, but did not see Raudebaugh stab Gibbs with a knife. Aaseby testified that he was doing his laundry at Gibbs's residence and saw a portion of the fight from the doorway between the laundry area and the kitchen, but that he also did not see Raudebaugh stab Gibbs.
The state introduced blood spatter evidence through officer Greensides, the investigating officer, and Dr. Lindholm, a forensic pathologist. This evidence indicated that Gibbs was stabbed before he was beaten with the pipe. This evidence contradicted Raudebaugh and Winkler's testimony that Gibbs was not visually bleeding when they left the residence. There was also testimony at trial that Raudebaugh and Winkler were involved in illegal drug transactions. Over objection, Aaseby testified that when Raudebaugh first arrived at Gibbs's residence Raudebaugh told him that he was there to collect $75.00 which Gibbs owed for drugs. Gill testified that Winkler had sold him drugs on prior occasions.
Id. at 760, 864 P.2d at 598.
At trial, the State's evidence indicated that the cause of Gibbs's death was the stab wound, not blows from the iron pipe. A fingerprint expert called by the State testified that he had identified Raudebaugh's fingerprints on the pipe but was unable to find any fingerprints on the knife due to the copious amount of blood on the instrument. Raudebaugh testified and acknowledged that he had hit Gibbs with the pipe, but denied having stabbed him. The jury found Raudebaugh guilty of second degree murder and use of a deadly weapon in the commission of a crime.
Raudebaugh, with the assistance of appointed counsel, initially filed an application for post-conviction relief on December 22, 1994, and shortly thereafter filed an amended application. The amended application alleged claims of prosecutorial misconduct and claims of ineffective assistance by Raudebaugh's criminal defense attorney, including the attorney's failure to employ necessary experts. The State filed a motion for summary dismissal, and Raudebaugh filed a motion for discovery. Due to a series of delays not relevant to the merits of this appeal, no definitive action was taken on those motions for a period of years. Meanwhile, Raudebaugh's counsel expressed an intent to again amend the application for post-conviction relief after accumulating all the necessary evidence.
On November 12, 1997, Raudebaugh filed a motion for the production of evidence, including the knife that was used to kill David Gibbs. At the hearing on this motion, Raudebaugh's attorney explained that he wished to have the knife, the pipe and Raudebaugh's fingerprint exemplar, which were in the possession of the State, examined by an independent expert to determine whether additional prints could be found that were not discovered by the State's expert. Raudebaugh's attorney acknowledged that he could not factually support a claim that Raudebaugh was prejudiced by his trial attorney's failure to obtain such an independent examination without first being able to conduct the discovery and investigation necessary to determine what such an independent examination would show. At the hearing on Raudebaugh's motion, the district court expressed reluctance to order production of the items without Raudebaugh having shown either that the examination by the State's expert had been inadequate or unreliable or that new technology, which was unavailable at the time of Raudebaugh's trial, might disclose fingerprint evidence that was not seen by the State's expert. The court suggested that Raudebaugh should first file the amended application for post-conviction relief that he had been preparing and that the parties and the court could then better address Raudebaugh's request for release of the knife, pipe and fingerprint exemplars in the context of all of his claims. The district court thereafter issued an order denying Raudebaugh's motion "without prejudice, subject to review at a future time."
Raudebaugh subsequently filed his second amended application. It alleged prosecutorial misconduct and various instances of ineffective assistance by his defense counsel. The second amended application was supported by several affidavits, including that of the attorney who had represented Raudebaugh in the criminal trial. That attorney attested that, during his representation of Raudebaugh, funds had not been available in the budget of the Kootenai County public defender for employment of expert witnesses, but that he "could have and should have" attempted to obtain, through a motion to the court, experts to assist him in Raudebaugh's defense. The affidavit of another experienced criminal defense attorney stated that, in the attorney's opinion, the performance of Raudebaugh's defense counsel was deficient based upon, among other things, the lawyer's failure to retain experts as consultants. The State answered the second amended application and again moved for summary disposition. In acting on the State's motion, the district court held that there were factual issues as to whether Raudebaugh's defense counsel had been deficient in several respects. The court went on to hold, however, that Raudebaugh had not made any showing that the attorney's deficiencies prejudiced Raudebaugh's defense, and therefore summary dismissal was appropriate. Raudebaugh's claims of prosecutorial misconduct were also summarily dismissed on the ground that those issues could have been raised in Raudebaugh's direct appeal from the judgment of conviction.
On appeal, Raudebaugh challenges the denial of his request for the production and examination of evidence which, he maintains, was essential before he could allege and factually support a claim for ineffective assistance of counsel regarding the fingerprint evidence. He also challenges the dismissal of his claims of prosecutorial misconduct.
ANALYSIS
A. Motion for Release and Re-testing of the Knife and Pipe
Raudebaugh contends that it was error for the district court to dismiss his post-conviction action without having allowed him to conduct the discovery and expert analysis necessary for development of an ineffective assistance of counsel claim based upon his defense attorney's omission to obtain an independent fingerprint examination of the knife and pipe. He argues that the inability to examine the evidence, and discover possible exculpatory fingerprints, made it impossible for him to show prejudice resulting from trial counsel's deficient performance. This Court is thus presented with the narrow issue of what showing a post-conviction applicant must make in order to obtain possession of physical evidence for scientific testing or analysis where the underlying claim or potential claim is one of ineffective assistance for defense counsel's failure to have obtained such testing or analysis during the criminal proceedings.
To address this issue, we begin with an overview of a post-conviction applicant's burden of proof on a claim of ineffective assistance of counsel. In order to prevail on such a claim, an applicant must demonstrate both that his attorney's performance was deficient, and that he was thereby prejudiced in the defense of the criminal charge. Strickland v. Washington, 466 U.S. 668, 687 (1984); Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App. 1995); Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct. App. 1989). To show deficient performance, a defendant must overcome the strong presumption that counsel's performance was adequate by demonstrating "that counsel's representation did not meet objective standards of competence." Roman v. State, 125 Idaho 644, 648-49, 873 P.2d 898, 902-03 (Ct.App. 1994). See also Vick v. State, 131 Idaho 121, 124, 952 P.2d 1257, 1260 (Ct.App. 1998). If a defendant succeeds in establishing that counsel's performance was deficient, he must also prove the prejudice element by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. When an applicant claims errors by counsel in the development of evidence for trial, the query is "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. The benchmark for judging a claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Id. at 686.
When an applicant believes that discovery is necessary for acquisition of evidence to support a claim for post-conviction relief, the applicant must obtain authorization from the court to conduct discovery. Idaho Criminal Rule 57(b) specifies that "the provisions for discovery in the Idaho Rules of Civil Procedure shall not apply to the [post-conviction] proceedings unless and only to the extent ordered by the trial court." Whether to authorize discovery is a matter directed to the discretion of the trial court. Aeschliman v. State, 132 Idaho 397, 402, 973 P.2d 749, 754 (Ct.App. 1999); Fairchild v. State, 128 Idaho 311, 319, 912 P.2d 679, 687 (Ct.App. 1996). The district court is not required to order discovery "unless necessary to protect an applicant's substantial rights." Griffith v. State, 121 Idaho 371, 375, 825 P.2d 94, 98 (Ct.App. 1992). However, "reasonable discovery may be permitted subject to supervision and firm control by the trial court to prevent abuses." Merrifield v. Arave, 128 Idaho 306, 310, 912 P.2d 674, 678 (Ct.App. 1996).
In Aeschliman, we observed that the trial court should require the applicant to identify the specific subject matter of the requested discovery and explain why the discovery was necessary. 132 Idaho at 403, 973 P.2d at 755. Raudebaugh complied with this requirement. His discovery request was specific and narrow, limited to a request for production of the knife, pipe and fingerprint exemplar. Raudebaugh's counsel explained his need for the discovery in order to be able to demonstrate prejudice from the criminal defense attorney's omission to have the items examined. However, neither Aeschliman nor any other decision of the Idaho appellate courts has outlined the type of showing that would justify the allowance of discovery where, as here, the discovery is directed to a claim that a defense attorney's omission to obtain expert analysis of physical evidence constituted a deprivation of effective assistance of counsel.
We emphasize that our analysis here does not apply where the underlying claim is not ineffective assistance but some other basis for post-conviction relief such as newly discovered evidence giving cause to doubt the reliability of expert testimony presented at trial, nor does it apply where the discovery request is based upon technological advances, such as DNA analysis, that may make possible more accurate tests or the revelation of new information that could not have been derived at the time of the criminal trial.
In Raudebaugh's case, the district court declined to allow the requested discovery in the absence of reasons to distrust the State's expert or a showing that new technology, developed since the criminal trial, might lead to fingerprint findings different from those reached by the State's expert. The district court feared that without requiring such a showing, the discovery request would be a "pure fishing expedition to show that the State didn't do a competent job." Raudebaugh argues that the district court's approach unduly limited his ability to procure evidence to prove the prejudice prong of a claim of ineffective assistance.
The district court was rightfully concerned that "fishing expedition" discovery should not be allowed. A post-conviction action is not a vehicle for unrestrained testing or retesting of physical evidence introduced at the criminal trial. On the other hand, there is merit in Raudebaugh's assertion that it is unduly restrictive to require an applicant presenting this type of claim to make a prima facie showing of prejudice from trial counsel's deficient performance as a condition to permitting discovery. Such a burden would place the applicant in a situation of needing to engage in discovery in order to acquire evidence of prejudice, but being required to show the prejudice in order to engage in discovery. Such a "catch-22" could prevent the coming to fruition of a valid post-conviction claim that an attorney's ineffectiveness prevented the acquisition and presentation of exculpatory scientific or technical evidence.
Reference is to the novel by Joseph Heller, Catch-22 (1961).
In our judgment, requiring that an applicant show a probability of different results from re-examination of physical evidence leaves too great a risk that a factually innocent defendant will be precluded from developing exonerating evidence in a post-conviction action for ineffective assistance of counsel. Consequently, we hold that if a post-conviction applicant makes a showing satisfactory to the trial court that the criminal defense attorney's failure to obtain independent examination or testing of physical evidence constituted deficient performance, i.e., did not meet objective standards of competence for a defense attorney in light of all the circumstances, including the seriousness of the criminal charge and the potential value of the physical evidence to exonerate the applicant, then discovery should be authorized in the post-conviction action to permit such scientific examination or testing without requiring that the post-conviction applicant also show, as a prerequisite to discovery, any probability that the independent examination will yield exculpatory evidence. The requirement of a threshold showing of deficient performance will prevent unwarranted and abusive discovery demands of the sort feared by the district court while allowing access to physical evidence in circumstances where the applicant can show that a competent defense attorney would have obtained expert examination of the evidence in the course of the criminal proceedings.
Because we have here adopted a standard for discovery in post-conviction actions not previously articulated by the Idaho appellate courts, we will remand this case to the district court for reconsideration of Raudebaugh's discovery request. On remand, both parties should be allowed an opportunity to present further evidence as to whether the decision of Raudebaugh's criminal defense attorney to not obtain an expert examination of the pipe or knife for fingerprints constituted deficient performance. If Raudebaugh shows such deficient performance to the satisfaction of the trial court, then his request for access to the physical evidence for re-examination by an expert should be granted.
B. Prosecutorial Misconduct
Raudebaugh next argues that the district court erred in summarily dismissing his post-conviction claims that the prosecutor engaged in misconduct in the criminal proceedings by failing to disclose certain documents to the defense. Summary dismissal of a post-conviction application is appropriate only if there exists no genuine issue of material fact which, if resolved in the applicant's favor, would entitle him to the requested relief. If a genuine factual issue is presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct.App. 1991); Hoover v. State, 114 Idaho 145, 754 P.2d 458 (Ct.App. 1988). Therefore, on review of a summary dismissal, we must examine the record to determine whether there are genuine issues of material fact and, if the material facts are undisputed, whether on those facts the State was entitled to judgment as a matter of law. Hoover, 114 Idaho at 146, 754 P.2d at 459. In making this assessment, we do not give evidentiary value to mere conclusory allegations that are unsupported by admissible evidence. Paradis v. State, 110 Idaho 534, 536, 716 P.2d 1306, 1308 (1986); Dunlap v. State, 126 Idaho 901, 894 P.2d 134 (Ct.App. 1995); Drapeau v. State, 103 Idaho 612, 617, 651 P.2d 546, 551 (Ct.App. 1982).
The district court summarily dismissed Raudebaugh's claims of prosecutorial misconduct on the ground that they should have been brought in Raudebaugh's direct appeal from the judgment of conviction and, having been omitted from that appeal, were waived. As the State concedes, the district court's rationale was incorrect. While it is true that a claim or issue that was or could have been raised on appeal may not be considered in post-conviction proceedings, I.C. §§ 19-4901(a)(4), 19-4901(b), 19-4908; Parsons v. State, 113 Idaho 421, 425, 745 P.2d 300, 304 (Ct.App. 1987); Henderson v. State, 123 Idaho 138, 139, 844 P.2d 1388, 1389 (Ct.App. 1992); Whitehawk v. State, 116 Idaho 831, 832-33, 780 P.2d 153, 154-55 (Ct.App. 1989), Raudebaugh's post-conviction claims do not fall within that category, for they are not based upon facts reflected in the record of the criminal case. "[P]ost-conviction proceedings do not preclude claims or issues based upon facts beyond the record presented on appeal, if those facts could not, or customarily would not, have been developed in the trial on criminal charges." Id. at 426, 745 P.2d at 305. According to Raudebaugh's allegations, he was unaware of the alleged discovery violations that underlie these prosecutorial misconduct claims until after his direct appeal. Consequently, the facts relating to these claims would not appear in the record of the criminal case, and Raudebaugh is not foreclosed from pursuing these claims in a post-conviction action.
Having found that the claims are not procedurally barred, we must examine whether, on the evidence presented to the district court, the State was nonetheless entitled to judgment as a matter of law. A prosecutor's duty to disclose evidence to the defense is set forth in Idaho Criminal Rule 16(a), which requires that a prosecuting attorney "disclose to defense counsel any material or information within the prosecuting attorney's possession or control, or which thereafter comes into the prosecuting attorney's possession or control, which tends to negate the guilt of the accused as to the offense charged or which would tend to reduce the punishment therefore." In addition, the Due Process Clause of the United States Constitution imposes upon a prosecutor the affirmative duty to disclose exculpatory evidence that is material to either guilt or punishment. United States v. Bagley, 473 U.S. 667 (1985); California v. Trombetta, 467 U.S. 479, 485 (1984); Brady v. Maryland, 373 U.S. 83 (1963); State v. Dopp, 129 Idaho 597, 605-06, 930 P.2d 1039, 1047-48 (Ct.App. 1996). Evidence is material "if there is a reasonable probability that, had the evidence been available to the defense, the result of the proceeding would have been different." Id. See also Bagley, 473 U.S. at 682. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. In order to withstand a motion for summary dismissal of such a claim, a post-conviction applicant must present evidence sufficient to raise a genuine factual issue as to whether material exculpatory evidence was withheld. Milburn v. State, 130 Idaho 649, 660, 946 P.2d 71, 82 (Ct.App. 1997).
Raudebaugh bases his claims on three documents that allegedly were not disclosed to the defense during the criminal proceedings: a handwritten list of telephone numbers found at the crime scene, a report by Officer Greensides referring to a missed appointment with Scott Gill, and a letter written by the prosecutor to the State's fingerprint analyst. We conclude that Raudebaugh has not demonstrated how these items were in any way exculpatory or could have altered the outcome of the trial.
As to the first two documents, they are not exculpatory on their face, and Raudebaugh has given no explanation as to how these items could have been useful to the defense. With respect to the third item, Raudebaugh contends that the prosecutor's letter to the fingerprint expert shows that the prosecutor impermissibly coached the expert about what to include in a supplemental report. However, Raudebaugh's characterization of the prosecutor's behavior does not stand up to scrutiny. When the letter is examined together with the fingerprint expert's initial report, it is apparent that the prosecutor merely sought clarification of ambiguities in the first report and was not suggesting any alteration of the expert's findings or shading of the expert's testimony. The letter contains nothing favorable to the defense and does not meet the standard of materiality. Because Raudebaugh has not demonstrated how the nondisclosure of these facially insignificant documents could have altered the outcome of his trial, we affirm the district court's summary dismissal of Raudebaugh's claims of prosecutorial misconduct.
CONCLUSION
The order of summary dismissal is affirmed with respect to Raudebaugh's claims of prosecutorial misconduct. The summary dismissal order is vacated, however, with respect to Raudebaugh's claim of ineffective assistance of counsel and the case remanded for reconsideration of Raudebaugh's request for access to, and an independent examination of, the fingerprint evidence. If that discovery request is granted on remand, after the independent examination has been completed Raudebaugh shall be given an opportunity to amend his post-conviction application, should he elect to do so, to further allege a claim that his defense attorney was ineffective for failure to obtain an independent examination of the fingerprint evidence. The dismissal of all other claims of ineffective assistance, which are unrelated to the fingerprint evidence, was not challenged on this appeal and is therefore affirmed. This matter is remanded to the district court for further proceedings consistent with this opinion.
Judge SCHWARTZMAN and Judge Pro Tem McLAUGHLIN CONCUR.