651 P.2d 546 (Idaho App. 1982), 13833, Drapeau v. State

Docket Nº:13833.
Citation:651 P.2d 546, 103 Idaho 612
Opinion Judge:WALTERS,
Party Name:Eddie Lee DRAPEAU, Petitioner-Appellant, v. STATE of Idaho, Respondent.
Attorney:Barry E. Watson, Wallace, for petitioner-appellant., David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A. I. Stahman, Deputy Atty. Gen., Boise, for respondent.
Judge Panel:BURNETT and SWANSTROM, JJ., concur.
Case Date:September 13, 1982
Court:Court of Appeals of Idaho

Page 546

651 P.2d 546 (Idaho App. 1982)

103 Idaho 612

Eddie Lee DRAPEAU, Petitioner-Appellant,


STATE of Idaho, Respondent.

No. 13833.

Court of Appeals of Idaho.

September 13, 1982

Page 547

[103 Idaho 613] Barry E. Watson, Wallace, for petitioner-appellant.

[103 Idaho 614]

Page 548

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A. I. Stahman, Deputy Atty. Gen., Boise, for respondent.

WALTERS, Chief Judge.

Eddie Lee Drapeau appeals the dismissal of his application for post-conviction relief. 1 In his application, he alleged he had been denied effective assistance of counsel at trial. 2 On appeal he raises the sole issue of whether the district court erred in summarily dismissing the application without holding an evidentiary hearing.

Drapeau contended that he was denied assistance of counsel in several respects. He complains that his counsel (a) conferred with him only infrequently and did not work closely with him; (b) did not engage in pretrial discovery; (c) did not inform the jury of Drapeau's unfamiliarity with the type of handgun used in the crimes; (d) failed to locate and interview certain people who could have corroborated his defense of alibi, had they been called as witnesses at his trial; and (e) should have interviewed, prior to trial, two of Drapeau's former cellmates to whom Drapeau had given a written statement concerning the crimes, which statement was subsequently introduced in evidence during trial.

The state responded to Drapeau's application by submitting answers to written interrogatories propounded to Drapeau's trial counsel. These answers concerned counsel's activities on behalf of Drapeau. Following the state's response, the district court entered an order under I.C. § 19-4906(b), tentatively dismissing the application, but granting Drapeau twenty days to reply to the proposed dismissal. Drapeau filed a reply, accompanied by affidavits from his brother, an aunt and uncle, and their two daughters. These affidavits asserted testimony that could have been presented at trial, had Drapeau's counsel contacted certain potential witnesses.

After considering the pleadings, the transcript of the trial testimony, the affidavits and the answers to the interrogatories, the district court entered a final order denying the application. The court determined that the evidence submitted with the application did not show that Drapeau was denied the "reasonable, competent assistance" of counsel, and that Drapeau had failed to make a showing that the conduct of his counsel contributed to the conviction or to the sentences imposed. See State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975). Although the decision of the district court does not expressly so state, both sides on this appeal recognize that, in essence, the district judge concluded that no material issues of fact existed that would warrant further proceedings on the application. I.C. § 19-4906(b).

Relevant to disposition of this appeal is the following testimony given at Drapeau's trial. The victim of the crimes testified that Drapeau was her assailant. She testified that the crimes occurred at approximately 2:30 a. m. on the morning of January 24, 1974, near Silverton, Idaho, and that the entire incident took place within fifteen to twenty minutes.

Drapeau raised the defense of alibi. He testified that he and his wife were in Coeur d'Alene, Idaho, some forty miles from Silverton, at either his grandfather's home or his cousin's home, from 5:00 p. m. to 10:30 p. m. on the evening of January 23. He testified that he left Coeur d'Alene shortly before 11:00 p. m. and drove with his aunt [103 Idaho 615]

Page 549

to the aunt's home, approximately ten miles away in Rathdrum, Idaho, arriving there at 11:00 p. m. He said he remained there until 3:00 a. m. on the morning of January 24. He related that he then returned to his grandfather's home in Coeur d'Alene where he spent the rest of the night.

During cross-examination of Drapeau at trial, the state introduced a statement given by Drapeau to two cellmates after his arrest. The statement was written by Drapeau and the cellmates. It contradicted Drapeau's alibi that he was not in the area at the time and date the offenses occurred. See State v. Drapeau, supra n.1, 97 Idaho at 687, 551 P.2d at 974. Drapeau testified at trial as to the circumstances under which the document was prepared.

The uncle testified at trial that when he arrived home from work shortly after midnight on the early morning of January 24, his wife (the aunt), Drapeau, and Drapeau's wife, were at the home. They conversed and visited together. He testified that at 3:00 a. m. he happened to look at a clock, noticed the time, mentioned it to the others, and told the Drapeaus that they should leave. 3

On rebuttal--after Drapeau, his aunt, and his uncle had testified--a deputy sheriff testified that Drapeau had admitted to him...

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