Stevens v. State

• Citation: 156 Idaho 396,327 P.3d 372
• Decision Date: 10 December 2013
• Docket Number: No. 39218.,39218.
• Court: Idaho Court of Appeals
• Parties: Edward John STEVENS, Petitioner–Appellant, v. STATE of Idaho, Respondent.

156 Idaho 396

327 P.3d 372

Edward John STEVENS, Petitioner–Appellant,

v.STATE of Idaho, Respondent.

No. 39218.

Court of Appeals of Idaho.

Dec. 10, 2013.

Review Denied July 1, 2014.

Dennis Benjamin of Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant. Dennis Benjamin argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

GUTIERREZ, Chief Judge.

Edward John Stevens appeals from the district court's judgment denying his petition for post-conviction relief. Specifically, he contends the district court erred by summarily dismissing his claim that his appellate counsel was ineffective for failing to appeal the appointment of a Supreme Court justice to hear his new trial motion. He also contends the district court erred by denying his claims, following an evidentiary hearing, that the prosecution committed a Brady¹ violation by failing to disclose evidence that the deceased child's eyes were removed after embalming and that defense counsel were ineffective for failing to discover and present evidence regarding when the child's eyes were removed, the possible side effects of medication the child was taking, and the length and the timing of the skull fracture

suffered by the child. Finally, he contends the alleged instances of deficient performance of defense counsel amounted to cumulative error. For the reasons set forth below, we affirm.

I.FACTS AND PROCEDURE

On the afternoon of December 27, 1996, an eleven-month-old boy (child) sustained a serious head injury

while in the care of Stevens, the child's mother's boyfriend. The child died the next day after he was declared brain dead and removed from life support. Stevens claimed the head injury was the result of an accidental fall down the stairs, but the State contended the head injury occurred after Stevens violently shook the child and slammed the child's head onto the edge of a bathtub. Stevens was charged with murder in the first degree for killing the child during the course of committing an aggravated battery, Idaho Code §§ 18–4001, 18–4002, 18–4003(d).

At trial,² both the State and the defense agreed the child died as a result of his head injury

. However, Stevens argued the cause of the injury was accidental, asserting he fell asleep and awoke approximately twenty minutes later to the sound of "thumps or a thud" and discovered the child lying at the bottom of the stairs not moving. After attempting to rouse the child and administer cardiopulmonary resuscitation (CPR), Stevens called 911 approximately five minutes later.

The State contended Stevens had been physically abusing the child since July, and on December 27, he was in the bathroom with the child, got frustrated with the child, violently shook the child, and then slammed the child's head against the side of the bathtub. The State further contended that Stevens then waited over half an hour to call 911. The State relied on essentially four components to prove this theory: (1) evidence that Stevens gave inconsistent accounts of what happened on December 27; (2) evidence that the child had been abused over the prior six months; (3) evidence that a child could not receive as severe a skull fracture

as suffered by the child from a fall down stairs; and (4) evidence that the child had been shaken on December 27. In regard to the issue of how the child sustained the head injury, the State presented the testimony of five experts who testified the child could not have received the type of fracture he sustained from a fall down the stairs, while Stevens called three experts who testified the child could have. To support the State's assertion that the child had been shaken, a critical allegation that formed the aggravated battery portion of the first degree murder charge, the State presented various experts who testified to the brain and eye injuries sustained by the child and their opinions, to varying degrees, as to whether these injuries were caused by shaking. One expert in particular, Dr. Brooks Crawford, who examined the child's eyes after they were removed from his body, testified the constellation of injuries he found were highly specific to shaken baby syndrome. Stevens countered by offering the expert testimony of two doctors who stated that several of the injuries were consistent with a fall down the stairs and "science still does not fully understand the significance of these eye findings." The jury found Stevens guilty as charged.

Stevens appealed his conviction to the Idaho Supreme Court, but prior to oral argument, he moved for a new trial based on newly discovered evidence. His appeal was suspended pending the district court's decision on that motion. Stevens alleged he was entitled to a new trial based on newly discovered evidence consisting of, among other things, evidence that the child's eyes may have been damaged during embalming, including affidavits by experts contending the damage occurred after death and a mortuary report indicating the child was embalmed prior to his eyes being removed for examination, and information that Propulsid

, a reflux drug being taken by the child, had been linked to instances of cardiac arrest (which Stevens claimed offered a possible alternate cause of death and/or reason the child would have fallen down the stairs). The Idaho Supreme Court appointed Justice Daniel Eismann, who had presided over the trial and sentencing as a district court judge before being elected to the Supreme Court, to hear the new trial motion. Stevens objected to the appointment, filing motions in both the Supreme Court and district court, but they were denied. Following a hearing, Justice Eismann denied the new trial motion, finding that the evidence indicating the eye damage occurred after death, including the mortuary report and the evidence relied upon by the experts in their affidavits, was not newly discovered evidence because counsel could have discovered it with due diligence and that evidence about the possible side effects of Propulsid would probably not have produced an acquittal. The Supreme Court affirmed the denial of the new trial motion on appeal. State v. Stevens, 146 Idaho 139, 144, 191 P.3d 217, 222 (2008).

In 2009, Stevens filed a petition for post-conviction relief claiming, in relevant part, that his appellate counsel was ineffective for failing to appeal the denial of his challenge to the appointment of Justice Eismann; that he was denied due process because the State failed to turn over exculpatory evidence indicating the eyes were removed post-embalming, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; and that his appointed defense counsel³ were ineffective for failing to discover and/or present exculpatory evidence, specifically the mortuary report, that the child was embalmed before his eyes were removed for examination and failing to discover and/or present evidence regarding the possible side effects of Propulsid and the length and timing of the child's skull fracture

. Stevens also alleged the cumulative effect of defense counsel's deficient performance resulted in prejudice and denied him the effective assistance of counsel. The district court summarily dismissed the ineffective assistance of appellate counsel claim and denied the remaining claims following an extensive evidentiary hearing. Stevens now appeals the denial of his petition for post-conviction relief.

II.ANALYSIS

A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like plaintiffs in other civil actions, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990) ; Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct.App.2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action, however, in that it must contain 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). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008) ; Goodwin, 138 Idaho at 271, 61 P.3d at 628. The petition must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records or other evidence supporting its allegations must be attached, or the petition must state why such supporting evidence is not included. I.C. § 19–4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct.App.2011) ; Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994).

Idaho Code § 19–4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative, if "it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of facts, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." I.C. § 19–4906(c). When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Payne, 146 Idaho at 561, 199 P.3d at 136 ; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district court is not constrained to draw...