Small v. State
| Decision Date | 13 August 1998 |
| Docket Number | No. 23113,23113 |
| Parties | Dovey SMALL, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
| Court | Idaho Court of Appeals |
Scott E. Axline, Blackfoot, for appellant.
Hon. Alan G. Lance, Attorney General; L. LaMont Anderson, Deputy Attorney General, Boise, for respondent.
Dovey Small appeals from the district court's order which summarily dismissed her application for post-conviction relief. We affirm.
In 1982, Small and her boyfriend, Randy McKinney, were charged with murder in the first degree, conspiracy to commit murder, robbery and conspiracy to commit robbery. Testimony at Small's trial revealed that Small and McKinney were traveling through Idaho to visit Small's sisters who lived near Arco. Small and McKinney were nearly out of money. According to the offered testimony, Small and McKinney conspired, while A jury found Small guilty of all counts, and the district court sentenced her to fixed life terms for murder and robbery and indeterminate thirty-year terms for the conspiracy charges. 1 Small appealed, and the Idaho Supreme Court affirmed Small's judgments of conviction and sentences. State v. Small, 107 Idaho 504, 690 P.2d 1336 (1984).
sitting at a kitchen table in the presence of others, to kill Robert Bishop, take his money and use his car to flee the state. McKinney then killed Bishop in the desert, while Small was playing pool at a bar in town, and McKinney reported the crime to Small. McKinney and Small, along with one of Small's sisters, visited the crime scene and witnessed Bishop's dead body. Small and McKinney were arrested later that day.
Small filed an application for post-conviction relief in 1989. The state answered claiming the application failed to allege facts that, even if true, would entitle Small to post-conviction relief. Argument was held and the district court orally dismissed most of Small's claims. Subsequently, in 1995, 2 the district court issued a memorandum decision disposing of the remaining two issues--(1) the allowance of McKinney's claim of his Fifth Amendment privilege at Small's trial; and (2) McKinney's new-found willingness to testify on Small's behalf. The district court summarily dismissed Small's application. Small filed a motion for reconsideration and the district court issued another memorandum decision denying the motion. Small appealed.
Small raises numerous issues on appeal, most of which were either not raised in her application below or are not supported by argument or authority. Small claims on appeal that: (1) her equal protection rights were violated; (2) her fixed life sentences violate the cruel and unusual punishment clause of the Eighth Amendment; (3) the Uniform Post-Conviction Procedure Act (UPCPA) is unconstitutional; (4) her right to be free from double jeopardy was violated; (5) the district court erred in allowing McKinney's blanket assertion of his Fifth Amendment privilege during Small's trial; (6) her counsel's assistance was ineffective both at trial and on her direct appeal; and (7) a new trial should have been granted in light of newly discovered evidence which McKinney is now willing to offer. Upon review, we have concluded that we will disregard the first five issues because they were not raised in the application below. We address some of the ineffective assistance of counsel issues, but disregard others because they were not raised below. Finally, we address Small's claim that she deserves a new trial because McKinney now avers that Small had nothing to do with Bishop's murder.
An application for post-conviction relief initiates a proceeding which is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App.1992). Summary dismissal of an application pursuant to Idaho Code Section 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Like a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). An application for post-conviction relief differs from a complaint in an ordinary civil action, however, for an application must contain much more than "a short and plain statement Idaho Code Section 19-4906 authorizes summary disposition of an application for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact which, if resolved in the applicant's favor, would entitle the applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct.App.1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct.App.1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). Summary dismissal of an application for post-conviction relief may be appropriate, however, even where the state does not controvert the applicant's evidence because the court is not required to accept either the applicant's mere conclusory allegations, unsupported by admissible evidence, or the applicant's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct.App.1986).
of the claim" that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, an application for post-conviction relief must be verified with respect to facts within the personal knowledge of the applicant, and affidavits, records or other evidence supporting its allegations must be attached, or the application must state why such supporting evidence is not included with the application. I.C. § 19-4903. In other words, the application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.
On review of a dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file; moreover, the court liberally construes the facts and reasonable inferences in favor of the nonmoving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993).
Small asserted the following issues in her application below, on page two at paragraph seven:
7. State concisely all the grounds on which you base your application for postconviction relief:
(a) Ineffective Assistance of Counsel at Trial
(b) Trial Error
(c) Appeal Error
(d) Ineffective Assistance of Counsel on Appeal accessible [sic]
(e) Denial of Right to Counsel and/or access to courts on appeal
(f) New evidence
(g) Prosecutorial misconduct
These are the only grounds asserted before the district court. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). But see State v. Raudebaugh, 124 Idaho 758, 762, 864 P.2d 596, 600 (1993). Therefore, Small's claims that her equal protection rights were violated, that her fixed life sentences violate the cruel and unusual punishment clause of the Eighth Amendment, that the UPCPA is unconstitutional, that her right to be free from double jeopardy was violated, and that McKinney's blanket assertion of his Fifth Amendment privilege during Small's trial was improper will not be considered for the first time on appeal. Thus, the only claims Small properly raises before this Court are that counsel was ineffective and that she should receive a new trial because of newly discovered evidence.
On appeal, Small claims that counsel's assistance was ineffective because counsel: (a) was inexperienced, (b) handled the case as a sole practitioner, (c) made no objection to the presiding trial judge, (d) repeatedly failed to object to the introduction of evidence, (e) failed to file a Rule 35 motion, (f) failed to request a Holder 3 instruction, and (g) Small was under the influence of prescriptive drugs which inhibited her ability to communicate with counsel. Small claims that the cumulative effect of these errors constituted ineffective assistance of counsel. Additionally, Small argues that her appellate ...
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