Drapeau v. State

Decision Date13 September 1982
Docket NumberNo. 13833,13833
PartiesEddie Lee DRAPEAU, Petitioner-Appellant, v. STATE of Idaho, Respondent.
CourtIdaho Court of Appeals

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.

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 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 that he, Drapeau had returned to Wallace, Idaho (near Silverton), between 12:30 a. m. and 1:30 a. m. on the morning of January 24, 1974.

With this background, we will address the issue raised on appeal, i.e., the allegation that Drapeau had been denied effective assistance of counsel, keeping in mind that it is improper to dispose of an application for post-conviction relief on the pleadings and the record, if there exists a material issue of fact. I.C. § 19-4906(b).

Drapeau first complains that his trial counsel (a) conferred with him only infrequently and did not work closely with him; and (b) did not engage in pretrial discovery.

In contravention of these assertions, the state presented the answers of Drapeau's trial counsel to interrogatories. Counsel stated that he conferred with Drapeau and members of Drapeau's family on numerous occasions before trial. He stated that he interviewed numerous witnesses, including members of the sheriff's office. He discussed the case with the prosecutor. He inspected the vehicle allegedly used in the crime. He interviewed other witnesses who had knowledge concerning the crime. He visited and observed the scene of the crime. He stated that the need for performance of any scientific tests was not indicated.

Although Drapeau was given the opportunity before final dismissal of his application, to reply by raising material issues concerning the claims of infrequency of conference and lack of pretrial discovery, he chose instead basically to attack counsel's activities regarding the interview of alibi witnesses. Bare allegations--when uncontroverted by the state--must be accepted as true. Tramel v. State, 92 Idaho 643, 448 P.2d 649 (1968). However, the allegations here are controverted. Bald and unsupported allegations regarding conferences with counsel and pretrial discovery, unsubstantiated by any proffered facts, are insufficient to entitle Drapeau to an evidentiary hearing on his post-conviction application. See Pulver v. State, 93 Idaho 687, 471 P.2d 74 (1970). Moreover, relief cannot be granted upon allegedly inadequate assistance of competent counsel where there is no evidence of prejudice resulting from the activity, or lack of activity, of counsel. Kraft v. State, 100 Idaho 671, 603 P.2d 1005 (1979). There has been no factual showing that he was prejudiced either by the alleged infrequency of consultation with his counsel or by counsel's activities regarding pretrial discovery. We conclude that no material issues of fact existed which would warrant an evidentiary hearing regarding frequency of conferences between Drapeau and his counsel, or the extent and nature of counsel's pretrial discovery.

Drapeau next contends (c) that he was denied assistance of counsel by failure of his attorney to inform the jury about Drapeau's unfamiliarity with the firearm used in the crimes. The state entered a denial of that allegation, but did not offer any factual basis for controverting that contention. The trial record confirms that no information was presented to show that Drapeau was unfamiliar with the type of handgun used.

The district court held that informing the jury of Drapeau's unfamiliarity with the weapon would not have changed the verdict in the case, in view of the "overwhelming eyewitness" evidence against Drapeau. In essence the district court held that Drapeau's allegation did not create a material issue of prejudice. We agree with the district court. Contrary to Drapeau's claim, informing the jury of his unfamiliarity with handguns likely would have hurt, rather than have helped, his case. The victim identified Drapeau as her assailant. Drapeau admitted in his written statement made with his cellmates, that he held the pistol with which she was shot. The circumstances of the shooting--including one wounding shot, two misfires, and a point blank shot at the head of the victim while she was prone on the ground, eleven or twelve feet from the assailant, which final shot did not strike her where it could kill her--arguably shows a lack of familiarity by the assailant with the weapon. But for the assailant's unfamiliarity with the weapon--it could be argued--the victim would have died. To say that the jury should have been advised of Drapeau's unfamiliarity with the weapon in light of the circumstances of the shooting and of Drapeau's alibi defense (which was not accepted by the jury) strains credulity. We conclude that the failure to inform the jury of Drapeau's alleged unfamiliarity with the weapon did not create a material issue of fact concerning effective assistance of counsel.

Drapeau next asserts (d) that his attorney did not interview and call as witnesses Drapeau's wife, the two daughters of his aunt and uncle, his grandfather, someone from the Coeur d'Alene police department, and a state highway patrolman. We will discuss each of these witnesses, and, where pertinent, the substance of their alleged testimony.

Drapeau represents that his wife, now deceased, would have corroborated his testimony as to his whereabouts on the evening of January 23 and the morning of January 24. In his answers to interrogatories, submitted in the...

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