801 P.2d 1216 (Idaho 1990), 17014, Stuart v. State

Docket Nº:17014.
Citation:801 P.2d 1216, 118 Idaho 865
Opinion Judge:BAKES, Chief Justice. BISTLINE,
Party Name:Gene Francis STUART, Petitioner-Appellant, v. STATE of Idaho, Respondent.
Attorney:Robert E. Kinney, Orofino, for petitioner-appellant., Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen. (argued), Boise, for respondent., ON DENIAL OF PETITION FOR REHEARING Robert E. Kinney, Orofino, for petitioner-appellant. Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen. (argued), Boise, for ...
Judge Panel:BOYLE and McDEVITT, JJ., concur. JOHNSON, Justice, concurring and dissenting. BISTLINE, Justice, dissenting. SHEPARD, C.J., and HUNTLEY, J., concur. BISTLINE, Justice, dissenting.
Case Date:October 16, 1990
Court:Supreme Court of Idaho
 
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Page 1216

801 P.2d 1216 (Idaho 1990)

118 Idaho 865

Gene Francis STUART, Petitioner-Appellant,

v.

STATE of Idaho, Respondent.

No. 17014.

Supreme Court of Idaho.

October 16, 1990

Robert E. Kinney, Orofino, for petitioner-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen. (argued), Boise, for respondent.

ON DENIAL OF PETITION FOR REHEARING

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[118 Idaho 866] BAKES, Chief Justice.

The appellant, Gene Francis Stuart, appeals the district court's denial of his petition for post conviction relief. Stuart was convicted of first degree murder by torture of three-year-old Robert Miller, committed on September 19, 1981. He was sentenced to death. His conviction and sentence were affirmed by this Court on direct appeal. See State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985). In June, 1986, Stuart filed a petition for post conviction relief with the district court. The petition claimed twelve separate grounds for relief.

In December of 1986, the district court issued an opinion rejecting the petition and gave Stuart notice that the court intended to dismiss the petition pursuant to I.C. § 19-4906. The opinion rejected the vast bulk of Stuart's grounds for relief because those issues had been decided on direct appeal, no petition for rehearing had been filed, and thus they were res judicata. The district court went on to find that three other grounds, while not res judicata, did not raise any legal issue or questions of fact which would entitle Stuart to either a hearing or any legal relief.

Stuart filed a reply to the district court's notice of intent to dismiss which included the affidavits of his counsel, a hospital employee David Simmons, Lynn Matteoni and her daughter Katrina. Each of these four affidavits alleged factual matters relating to evidence which had not been previously presented and which Stuart felt was sufficient to warrant an evidentiary hearing.

The affidavit of David Simmons, an acquaintance of Stuart, related that Stuart had sought advice from him concerning the discipline and upbringing of the victim. The trial court concluded that Simmons' lay opinion given to Stuart, whom he knew only casually, did not constitute newly discovered evidence such as would require a hearing.

The other affidavits were related. The affidavits of Ms. Lynn Matteoni and her daughter Katrina purported to contradict testimony given at trial by the State's witnesses which had portrayed Stuart as a person who abused and misused women and children. The Matteonis' affidavits alleged that their experience with Stuart indicated that he was a gentle, loving and caring person. Ms. Matteoni's affidavit declared that in 1975-76, while she was separated from her husband, she spent considerable time with Stuart in an informal relationship. She stated that her two young daughters also spent time with Stuart and that they were extremely fond of Stuart. The affidavit further stated that Stuart cared for both of the children while Ms. Matteoni worked and that he was against spanking children for discipline. She further states that the "allegations of abuse made by Vicki Nelson [against Stuart] have been related to me in part by Gene's attorney. From my experience with Gene Stuart, he showed no signs whatsoever of any type of abusive behavior toward me or my children, very much in contrast to the testimony of Vicki Nelson as the same was related to me." Finally, Ms. Matteoni explains that she was unaware of the charges and trial and was therefore unable to come forward and testify at that time. Ms. Matteoni's daughter Katrina's affidavit stated that she was 5 years of age when Stuart was dating her mother. She stated that he took care of them, did not punish them and that she was willing to testify in greater detail to her recollections of Stuart.

Stuart's attorney filed an affidavit which attempted to set out a foundation as to the circumstances which precluded the Matteonis from testifying during the original proceeding. The affidavit indicated that (1) Stuart was denied sufficient investigative assistance prior to trial, and (2) due to the insufficient assistance he was unable to contact the Matteonis until a considerable time after the trial. The attorney's affidavit described his attempts to contact Lynn Matteoni which were "all to no avail." The affidavit goes on to point out that he finally was put in contact with Ms. Matteoni by her mother in October of 1986 and that he was able to contact Ms. Matteoni in January of 1987. Additionally, Stuart's attorney's affidavit set forth certain background facts regarding Stuart's allegation

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[118 Idaho 867] that certain plea bargaining negotiations resulted in the sentencing being arbitrary.

After considering Stuart's response to the court's December 23, 1986, order, the district court issued a second opinion in May of 1987. That opinion again reviewed two of Stuart's grounds for post conviction relief covered in the first opinion and additionally dealt with the claim of newly discovered evidence set out in the affidavits. In this second opinion, the district court held (1) that the use of preliminary hearing testimony at the sentencing was lawful and that, therefore, the petitioner's allegation was legally insufficient and required no hearing; (2) that Stuart's sentence was not imposed in an arbitrary manner; and (3) that the allegation that newly discovered evidence was proffered by the affidavits did not meet the standard set in Drapeau v. State, 103 Idaho 612, 651 P.2d 546 (Ct.App.1982), in that it failed to raise a substantial question of fact which would probably change the conviction or sentence, thus requiring an evidentiary hearing.

Stuart appealed to this Court, and on March 10, 1989, we issued our opinion affirming the district court's denial of Stuart's petition for post conviction relief. Stuart petitioned for rehearing, which petition was granted on June 12, 1989. After additional briefing and reargument, we conclude that the district court did not err in denying Stuart's petition for post conviction relief, and affirm the district court's judgment dismissing Stuart's petition for post conviction relief. Our March 10, 1989, opinion is withdrawn, and this opinion is substituted therefor.

I

In this appeal from the trial court's dismissal of the petition for post conviction relief, Stuart argues that the trial court erred in summarily dismissing his petition without conducting an evidentiary hearing on the issues. The district court's decision to dismiss Stuart's petition without an evidentiary hearing was based on I.C. § 19-4906(b), which reads:

19-4906. Pleadings and judgment on pleadings.-- ...

(b) When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to post-conviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for so doing. The applicant shall be given an opportunity to reply within 20 days to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application, or direct that the proceedings otherwise continue. Disposition on the pleadings and record is not proper if there exists a material issue of fact.

This Court has held that it is appropriate to dismiss an application for post conviction relief without affording an evidentiary hearing, under this statute, if the allegations, though uncontroverted, do not entitle the applicant to relief. Clark v. State, 92 Idaho 827, 452 P.2d 54 (1969). In this case, the district court's two memorandum decisions are complete and well reasoned. In the first opinion the district court correctly observed that substantially all of Stuart's claims had been raised in the direct appeal, State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985), and thus were res judicata. Of those issues remaining, the trial court found that they were legally insufficient. Specifically regarding the claim of newly discovered evidence, the district court stated that "[c]onsidered as a whole, this new evidence does not raise material questions of fact, especially when viewed against the backdrop of the overwhelming evidence produced at trial. To be sure, this evidence would probably not have affected the conviction or the sentence." We have reviewed the record to determine whether a genuine question of material fact existed and we conclude that the district court did not err in dismissing Stuart's petition for post conviction relief. We review each of Stuart's contentions separately below.

II

Stuart argues that three separate grounds existed for the district court to

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[118 Idaho 868] grant a hearing on his petition for post conviction relief. Those grounds are (A) the use of preliminary hearing testimony for purposes of sentencing; (B) Stuart's claim that his rights were violated by plea bargaining negotiations; and (C) newly discovered evidence which was raised by the four affidavits submitted to the district court. In the rehearing granted by this Court on June 12, 1989, Stuart raises for the first time the issue of whether or not there was a proper weighing of the mitigating circumstances against each of the aggravating circumstances as required in our April 4, 1989, opinion in State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). We will deal with each of these in turn.

A.

Use of Preliminary Hearing Testimony

Stuart argues that the trial court erred by considering preliminary hearing testimony at the sentencing hearing. This issue was not raised by Stuart in his direct appeal, State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985). Nonetheless, Stuart alleges that the error is...

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