Andrus v. State
| Decision Date | 01 June 2021 |
| Docket Number | Docket No. 47805 |
| Parties | LAWRENCE SCOTT ANDRUS, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Melanie Gagnepain, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Eric J. Wildman, District Judge.
Judgment denying petition for post-conviction relief, affirmed.
Fyffe Law, Robyn A. Fyffe, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kacey L. Jones, Deputy Attorney General, Boise, for respondent.
____________________
Lawrence Scott Andrus appeals from the district court's judgment denying his petition for post-conviction relief. For the reasons set forth below, we affirm.
Andrus was charged with felony driving under the influence of alcohol (DUI). The charges arose after police officers were dispatched to a bridge based on a report that Andrus intended to end his own life. Andrus was transported to a hospital where he stated he was not suicidal and admitted being intoxicated. Concerned that Andrus had been drinking and driving, officers conducted field sobriety tests, which Andrus failed. Andrus provided breath samples which measured his blood alcohol content at .247/.248.
Andrus was initially charged with misdemeanor DUI. The State offered a plea deal, which was revoked two days later upon confirmation of additional DUI convictions. The Statethen amended the charge to a felony. Andrus was found guilty after a jury trial. Andrus appealed the denial of both an Idaho Criminal Rule 35 motion for reconsideration of his sentence and a petition for post-conviction relief, which were both affirmed by this Court. State v. Andrus, 2016 Docket No. 42878 (Ct. App. Jan. 14, 2016) (unpublished); Andrus v. State, Docket No. 44686 (Ct. App. Jan. 24, 2018) (unpublished).
While his post-conviction appeal was pending, Andrus filed a motion for relief from judgment under Idaho Rule of Civil Procedure 60(b)(6), which was denied by the district court. Andrus appealed, and this Court reversed the district court's denial and remanded the matter for further proceedings. Andrus v. State, 164 Idaho 565, 570, 433 P.3d 665, 670 (Ct. App. 2019). On remand, Andrus filed an amended Rule 60(b) motion and a motion to amend his petition for post-conviction relief, both of which the district court granted. Andrus filed an amended petition for post-conviction relief alleging various instances of ineffective assistance of trial counsel. After an evidentiary hearing and briefing by the parties, the district court denied the petition. Andrus timely appeals.
In order to prevail in a post-conviction proceeding, the petitioner must prove the allegations by a preponderance of the evidence. Idaho Code § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct. App. 2010). When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the district court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56, 106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review of the district court's application of the relevant law to the facts. Baxter, 149 Idaho at 862, 243 P.3d at 678.
Andrus argues that the district court erred by denying his petition for post-conviction relief. Specifically, Andrus argues that he proved his trial counsel provided ineffective assistance by failing to: (1) object to the prosecutor's remarks in closing arguments; (2) convey the State's plea offer before it was withdrawn; and (3) file motions to exclude the breath test results and expert testimony on the Widmark Equation. We address each of these contentions below.
A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show that the attorney's performance was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a deficiency, the petitioner has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Knutsen v. State, 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007). To establish prejudice, the petitioner must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at 442, 163 P.3d at 231. This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. Gonzales v. State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
Andrus argues that the district court erred in failing to find that counsel's failure to object to statements made by the prosecutor during closing arguments was objectively unreasonable and that he was prejudiced by the deficiency. At trial, Andrus testified that he began drinking after arriving at the bridge, and therefore did not drive while under the influence. The prosecutor argued that Andrus "hasn't told the truth to anyone, anyone, and his story changes whenever it is convenient for him." The prosecutor further argued that Andrus was dishonest and manipulative and stated:
Let's go over those stories. The defendant lied to Bishop Kear about his whereabouts. He lied to Kear, Swearingen, Moeller, Cahoon, Williams, and Nebeker about his suicidal, ideations, and he's saying that he was depressed that day, but you also heard what happened at the hospital. I'm not suicidal anymore. I just want help with my hip. He manipulated those people. He manipulated the sheriff's deputies and the dispatchers and the medical staff, and now he's trying to manipulate you. He's good at it. One of the best I've ever seen. He knows how to speak. He knows how to present, and he's so good he's won an Emmy. He also told you that what he really wanted that day was human contact, a friend. He wouldn't tell his friends where he was. He was manipulating them; now he's trying to manipulate you. Don't be manipulated. Please find the defendant guilty. Thank you.
(Emphasis added).
In the district court, Andrus stated the issue as "Petitioner argues that the prosecutor cannot refer to a defendant as a liar or assert that a defendant is attempting to manipulate a jury." Andrus equated the prosecutor stating that he was a manipulator to calling him a liar and relied on this Court's decision in State v. Kuhn, 139 Idaho 710, 85 P.3d 109 (Ct. App. 2003) to assert that such statements amounted to misconduct and were, therefore, objectionable. As to attempting to manipulate the jury, Andrus relied on cases from foreign jurisdictions to argue that the statement was improper and objectionable. On appeal, Andrus focuses primarily on an argument that the statement as an improper opinion from the prosecutor. However, as set forth above, that was not the issue raised to the district court and was not argued in either Andrus's initial or reply brief to the district court. In fact, in Andrus's post-trial briefing, he specifically identified the statements he argued were improper. Those statements are set out in bold and italics in the quote above. Andrus argued: "The bolded and italicized portions of this paragraph are blatant examples of impermissible prosecutorial misconduct." Not surprisingly, the district court did not specifically address whether any statement of the prosecutor constituted an improper expression of opinion. This matter was tried to the district court and Andrus was obligated to present his case and any basis for relief to the trier of fact. We, therefore, decline to separately address the opinion argument.
The district court distinguished the facts of this case from those in Kuhn. In Kuhn, the record contained various inconsistencies in the defendant's testimony. The State argued that lies could be inferred or deduced from these inconsistencies. This Court recognized the inconsistencies and noted that the prosecutor pointing out such inconsistencies was not improper. However, this Court held that the prosecutor committed prosecutorial misconduct by calling thedefendant a "liar and a thief" in closing argument and expressly accusing the defendant of committing perjury, an independent felony. Id. at 716, 85 P.3d at 1115. Here, the district court found that the record did not just contain inferences but, to the contrary, numerous examples of Andrus admitting that he lied and manipulated people on many occasions, including those mentioned by the prosecutor. The district court found that the prosecutor's statements were actually restatements of uncontested fact and held that "[The prosecutor] was pointing out a pattern of manipulative conduct and behavior on the part of the Petitioner that was supported by evidence in the record, including the Petitioner's own testimony."...
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