State v. Larkin

• Decision Date: 01 June 1981
• Docket Number: No. 13198,13198
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robert F. LARKIN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1065

628 P.2d 1065

102 Idaho 231

STATE of Idaho, Plaintiff-Respondent, v. Robert F. LARKIN, Defendant-Appellant.

No. 13198.

Supreme Court of Idaho.

June 1, 1981.

Peter D. McDermott, Pocatello, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, Garth Pincock, Sp. Deputy Atty. Gen., Pocatello, for plaintiff-respondent.

DONALDSON, Justice.

This is an appeal from an order of the district court dismissing an application for post-conviction relief of defendant-appellant Robert F. Larkin. The defendant-appellant petitioned the district court to review and set aside his sentence for a jury conviction of the second degree murder of Roger Ellsworth. The application was based on Larkin's allegation that he received ineffective assistance of counsel in preparation for and during his trial. Larkin also made a motion for his production as a witness at a post-conviction relief evidentiary hearing. The state made a motion for summary disposition of Larkin's application pursuant to I.C. § 19-4906(c) and filed an affidavit by Larkin's trial counsel.

Following a hearing on Larkin's motion for production and the state's motion for summary disposition, the district court denied Larkin an evidentiary hearing and gave notice that it intended to dismiss defendant's application pursuant to I.C. § 19-4906(b) on the grounds that the uncontroverted affidavit of trial counsel indicated that adequate assistance of counsel had been provided. Before the court filed its order, Larkin filed an affidavit and the state filed a second affidavit by Larkin's trial counsel. Based on the court's review which included Larkin's affidavit and both affidavits of his trial counsel, ¹ the court dismissed Larkin's application for post-conviction relief. Larkin appeals from the order denying his motion for an evidentiary hearing and dismissing his application.

Larkin contends in his application for post-conviction relief and affidavit that his trial counsel was inadequately prepared for trial as indicated by his failure to locate or timely subpoena several allegedly important witnesses. Along with the contentions raised by Larkin's affidavit, he states that he concluded it would not benefit his defense to present witness Hite to his trial counsel since his trial counsel had said that other eyewitnesses would not be helpful. Additionally, Larkin states that he was not aware of witness Gates' potential testimony until after his trial. His affidavit identifies several witnesses and what Larkin believed their testimony would have been. Besides Larkin's affidavit, the trial court reviewed two affidavits executed by his trial counsel. In the trial counsel's affidavits, he describes how he interviewed or attempted to locate the witnesses. Based on his interviews, he had concluded that those witnesses' testimony would be either irrelevant, not helpful, or damaging to Larkin's defense. Trial counsel also attached to his first affidavit a subpoena that was issued the day prior to trial for several of the witnesses in question. The trial counsel further states that he sought the subpoenas at the request of the defendant. He also states that he did not become aware of witnesses Hite and Gates until he read Larkin's application for post-conviction relief.

The standard by which the performance of trial counsel will be judged was set forth in State v. Tucker, 97 Idaho 4, 8, 539 P.2d 556, 560 (1975), wherein we adopted the language of United States v. DeCoster, 159 U.S.App.D.C. 326, 331, 487 F.2d 1197, 1202 (1973): "a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate." The American Bar Association's "Standards Relating to the Defense Function" (1971) were recognized as a starting point from which clearer guidelines as to the meaning of reasonably competent assistance of counsel could be developed.

The obligation of defense counsel is "to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty." American Bar Association's "Standards Relating to the Defense Function" § 4.1 (1971). However, this court has held in State v. Perez, 99 Idaho 181, 184, 579 P.2d 127, 130 (1978), that "the course of investigation will naturally be shaped by a defendant's disclosure to his counsel, by his mental condition, by counsel's preliminary knowledge of the evidence against the defendant and by a variety of factors, many peculiar to each given case."

In the case at bar, Larkin apparently decided to not inform his counsel of witness Hite. Larkin himself did not become aware of Gates potential testimony until after trial. We hold that no allegations are made regarding the defense counsel's investigation and failure to discover Gates or Hite that indicate that Larkin was denied reasonably competent assistance of counsel. The mere fact that a defendant comes up with names of potential witnesses that were not discovered before trial does not in and of itself raise a presumption that the defendant was denied reasonably competent assistance of counsel. This Court in State v. Elisondo, 97 Idaho 425, 426, 546 P.2d 380, 381 (1976), has held that "(w)e cannot presume the denial of competent assistance of counsel without a basis for objective analysis of counsel's performance."

State v. Tucker, supra at 10, 539 P.2d at 562, held:

"This court will not attempt 'to second guess strategic...