Stuart v. State

• Decision Date: 21 February 1995
• Docket Number: No. 20060,20060
• Citation: 127 Idaho 806,907 P.2d 783
• Parties: Gene Francis STUART, Petitioner-Appellant, v. STATE of Idaho, Respondent. . Boise, January 1994 Term
• Court: Idaho Supreme Court

Page 783

907 P.2d 783

127 Idaho 806

Gene Francis STUART, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 20060.

Supreme Court of Idaho.

Boise, January 1994 Term.

Feb. 21, 1995.

Rehearing Denied Jan. 8, 1996.

[127 Idaho 808] Robert E. Kinney, Orofino, for appellant.

Larry EchoHawk, Atty. Gen., and Lynn E. Thomas, Deputy Atty. Gen., Boise, for respondent. Lynn E. Thomas argued.

BISTLINE, Justice. ¹

This is an appeal by Gene Francis Stuart (Stuart) from the denial of his second petition for post conviction relief in which he alleged that his telephone calls from the Clearwater County Jail to his attorney(s) had been impermissibly monitored or taped. After an evidentiary hearing, the district court denied Stuart's petition, concluding that Stuart had failed to carry his burden of proof. Because we hold that there is not substantial and competent evidence to support the district court's finding that the intentional destruction of portions of the relevant telephone logs was not attributable to the state, such that a spoliation inference should be applied in Stuart's favor, we reverse.

PRIOR PROCEEDINGS

In 1982, Stuart was convicted of First Degree Murder By Torture for the beating death of a three-year-old child, Robert Miller. Stuart was sentenced to death. The conviction and sentence were upheld on direct review in State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985).

Stuart's first petition for post-conviction relief was denied by the district court and this Court affirmed the denial (in a subsequently withdrawn opinion). The Court denied Stuart's petition for rehearing and issued a substituted opinion in Stuart v. State, 118 Idaho 865, 801 P.2d 1216 (1990).

Stuart then filed this second petition for post-conviction relief, alleging that the Clearwater County Sheriff's Department had intruded upon his confidential conversations by taping and/or monitoring his attorney-client phone calls. The district court summarily dismissed Stuart's second petition. On appeal, this Court reversed and remanded, holding that summary judgment on the second petition was inappropriate because there were disputed issues of material fact. Stuart v. State, 118 Idaho 932, 801 P.2d 1283 (1990). We requested that the district court determine: (1) whether there was recording of attorney-client conversations by the Sheriff's department; and (2) whether Stuart's constitutional rights were violated. The Court

[127 Idaho 809] stated that if the district court found that Stuart's attorney-client conversations had been recorded, the State must show that the evidence at trial had an origin independent of the eavesdropping. Stuart, 118 Idaho at 935, 801 P.2d at 1286.

THE DISTRICT COURT'S RULING

In conducting the proceedings on remand, the district court bifurcated the inquiries that this Court ordered. The district court directed the parties to first present evidence relevant to the question of whether any of Stuart's phone calls to or from his attorney(s) were monitored or tape recorded, indicating that the question of whether Stuart's constitutional rights had been violated would only be reached if Stuart satisfied his initial burden of proving that recording or monitoring of these calls had occurred. Because the district court ultimately concluded that Stuart had not satisfied his burden of proof, the evidence presented was limited to the threshold question of whether or not taping or monitoring of attorney-client communications had occurred.

In remanding the case to the district court, we held "that there is a triable issue of fact as to whether the conduct of [Stuart] and Mr. Matson [an attorney in Washington who had represented Stuart in past] established an attorney-client relationship." The district court began its analysis with that question and found that in fact an attorney-client relationship existed during the period immediately after Stuart was arrested on September 19, 1981. On the basis of Matson's testimony, the district court found that during that time, Stuart made and received several calls from Matson. The district court found that Stuart discussed the death of Robert Miller and the issue of sadistic pre-disposition as an element of the murder by torture charge the state was filing against Stuart. Matson expressed concern that the state would attempt to contact two women with whom Stuart had past relationships, Teresa Jacobsen and Vicki Owens. Stuart told Matson that although he knew where they were, the state would not be able to locate them. The state did ultimately locate these two women and they subsequently testified against Stuart at trial. On appeal, neither party takes issue with the district court's findings relevant to the existence or scope of the attorney-client relationship or attorney-client communications between Stuart and Matson.

Stuart called many witnesses in an attempt to establish that his attorney-client telephone calls had been either monitored or tape recorded. The state called many witnesses to rebut that assertion. Most of the witnesses for both sides were employees, or former employees, of the Clearwater County Sheriff's Office or Orofino County.

Evidence was adduced during the proceeding concerning a concealed microphone in a false thermostat in one of the rooms of the Clearwater County Sheriff's Department. However, the district court found that the hidden microphone behind the thermostat in the interview room was not installed or in place during the time that Gene Francis Stuart was a prisoner in the Clearwater County Jail.

The district court found that it was undisputed that one of Stuart's telephone calls, made or received by him while housed in the Clearwater County Jail, was tape recorded. The recorded conversation was between Stuart and his sister.

Emery Ray Norton testified that he did radio work for the sheriff's office and set up the equipment for this recorded call. Norton testified that, pursuant to Sheriff Albers' request, he connected one of the telephone lines with a tape recorder. Norton further testified that he disconnected this system on that same evening and never reinstalled it.

Sheriff Albers testified that, for a period of time, some of Stuart's outgoing calls (he estimated three) were monitored. Albers believed that only he and Deputy Robert Harrelson monitored these calls. On the basis of Albers' testimony, the district court found that the calls were monitored by simply being close enough to Stuart to hear his side of the conversation. ² Albers believed that all of these calls involved conversations between Stuart and his family members. According Albers testified that he had ordered one incoming call of Stuart's to be recorded. Albers testified that, at the time Stuart was arrested, the sheriff's office did not have the capability of recording telephone conversations until Norton connected the phone line to a tape recorder. Albers specifically testified that no conversation between Stuart and Matson was monitored or recorded.

[127 Idaho 810] to Albers, no attorney-client calls were to be monitored.

Albers testified that no further telephone calls of Stuart were recorded, apparently based, to some extent, upon a conversation with the Clearwater County Prosecutor, Stephen Calhoun, who advised that such a practice could cause problems. Albers testified that the purpose for recording the telephone conversation of Stuart and of monitoring some of Stuart's calls was security, to protect Stuart from the public and to prevent an escape by Stuart.

Calhoun, who prosecuted Stuart, testified that Albers had informed him of the tape recorded call. His impression was that the tape recording had been made on the day that he was informed or perhaps the night before. Albers indicated to Calhoun that the purpose of the recording and monitoring was for security and discussed a pistol missing from the Stuart residence. ³ Calhoun's opinion expressed to Albers was that he did not want to interfere with security, but felt that Albers should not be monitoring or recording conversations and believed that no such activity took place after this conversation. Calhoun testified that he had no knowledge of any attorney-client conversations having been monitored or recorded.

Arvin E. Finley, a deputy for the Clearwater County Sheriff's office until his resignation in 1987, testified that he had knowledge of recordings made of Stuart's telephone calls. However, the district court found his direct knowledge was very limited. The district court pointed out that certain individuals, such as Finley, who testified at this evidentiary hearing and gave affidavits supportive of Stuart's Petition for Post-Conviction Relief, had positions somewhat antagonistic to the Clearwater County Sheriff's Office and specifically to Sheriff Albers. The district court explained that Deputy Finley was a candidate for Clearwater County Sheriff in 1988 opposing Sheriff Albers.

Finley testified that he had heard one recorded conversation, evidently the conversation between Stuart and his sister. He further testified that on one occasion, he was present in the Clearwater County Sheriff's Office when a dispatcher told him that Stuart was on the phone and that all of his conversations were being recorded. Finley testified that he did not recall who the dispatcher was, but he did recall that the jailer was Curtis Berry (an assertion that the district court pointed out was contradicted by the testimony of Curtis Berry). The district court found that other than these occasions, Finley's information admittedly came from what others had told him.

John E. Bryant was another witness called by Stuart who the district court found had a poor relationship with the Clearwater County Sheriff's Office. Bryant was displeased when Deputy Geidl was fired, subsequently quit himself, and brought a lawsuit against Clearwater County over a dispute in wages. The district court found that Bryant's testimony regarding...