Carter v. State

• Decision Date: 20 June 1985
• Docket Number: No. 15435,15435
• Parties: Joseph Alexander CARTER, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Supreme Court

Page 826

702 P.2d 826

108 Idaho 788

Joseph Alexander CARTER, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 15435.

Supreme Court of Idaho.

June 20, 1985.

David Z. Nevin, of Seiniger & Nevin, Boise, for petitioner-appellant.

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

DONALDSON, Chief Justice.

On September 4, 1977, Larry Tolley was shot to death near the town of Rigby, Idaho. The events leading up to the shooting are set out in State v. Carter, 103 Idaho 917, 655 P.2d 434 (1982). Appellant, Joseph Carter was charged with voluntary manslaughter in connection with the death of Tolley and was bound over to stand trial in the district court. After various pretrial motions, which did not include a motion to suppress, trial was commenced on April 19, 1978. The jury found Carter guilty as charged.

Carter moved for a new trial. The district court denied the motion and imposed an indeterminate six-year sentence. Carter filed timely notice of appeal, and his motions for stay of execution of sentence and for bail pending appeal were granted. Throughout the proceedings which followed, except for a 16-day period in early 1983, Carter remained free on $1,000 bail. After hearing and re-hearing, this Court affirmed the conviction.

Thereafter, on March 14, 1983, Carter filed his petition for post-conviction relief which is the basis of the present appeal. The district court continued Carter's release on bond pending disposition. On April 12, 1983, the State filed a motion to dismiss. The State's motion was apparently denied and on September 30, 1983, the first of two evidentiary hearings was held. Carter testified in his own behalf along with his wife and parents, and also offered the testimony of one of his two trial attorneys, John Radin. (Lead trial counsel had since died.) Among other evidence, the State offered the testimony of the then-Jefferson County Prosecutor, Blair Grover. After oral argument on October 25, 1983, the district court ordered a second evidentiary hearing, and on January 3, 1984, ten of the twelve trial jurors were questioned under oath by counsel for both sides. (One of the twelve had since died, and one was not located.)

On January 9, 1984, the court filed an order denying Carter's petition for post-conviction relief, and thereafter, on February 27, 1984, ordered that Carter commence serving his sentence. On March 7, 1984, the court filed an "Addendum" to its earlier order, further explaining its rationale for denying the petition.

Carter appeals from the denial of his petition for postconviction relief. He asserts that his conviction should be vacated because he was denied reasonable assistance of counsel at trial.

At trial, the jury was presented with inconsistent versions of the shooting. Carter's testimony can be summarized as follows: Tolley arrived at Carter's home intoxicated and began threatening Carter and Carter's wife and infant son with a handgun. Tolley aimed the gun at Carter's wife and stated that he was going to "get" her. Carter ran into his house, grabbed an antique shotgun, loaded it, and shot Tolley. Tolley retreated to his pickup. Tolley then raised his gun out the window of the truck as if to fire, and Carter shot him a second time. Carter reloaded the shotgun and approached the truck to get Tolley's gun and to see how badly Tolley was injured. As Carter neared the truck, Tolley again raised up. Carter shot him a third and final time. Carter then opened the door of the truck and took the gun away from Tolley. Carter's wife screamed at Carter that he was getting fingerprints on the gun and he dropped it on the front yard where it was later found by the investigating officers. Carter then summoned the police. Under this version of the incident Carter claims that his use of deadly force was justified by self-defense.

Deputy Sheriff Johnson, however, testified at trial that Carter stated during the custodial interrogation that Tolley had dropped his gun on the lawn after the first shot was fired. Under this version of the incident, Tolley was unarmed when Carter fired the final shots and Carter's subsequent use of deadly force could not be justified by the doctrine of self-defense.

Carter asserts that trial counsels' failure to object to Deputy Johnson's testimony amounted to a denial of his constitutional right to the effective assistance of counsel. ¹ Before we reach the merits of Carter's ineffective assistance of counsel claim, we will first address the State's two threshold arguments.

I.

The State first argues that Carter's appeal should be dismissed as untimely. The trial court's order denying Carter's petition for post-conviction relief was filed January 9, 1984. Carter filed his Notice of Appeal from that order on February 27, 1984, 49 days later. The State contends that a petition for post-conviction relief is governed by the 42-day time limit imposed under I.A.R. 14 and, therefore, that Carter's appeal was untimely. Carter contends, however, that the time for review of a final judgment under the Uniform Post-Conviction Act is governed by I.C. § 19-4909, which provides for an appeal within 60 days from the entry of judgment.

When the appellate rules were adopted, statutory amendments were submitted to the legislature in an attempt to resolve any conflicts. Apparently, I.C. § 19-4909 was simply overlooked. The legislature has since acted to eliminate the conflict. Effective July 1, 1985, I.C. § 19-4909 has been amended to provide that the time for appeal in a post-conviction relief action is governed by the rules of this Court. Thus, as of July 1, 1985, the time for appeal is 42 days rather than 60. 1985 Idaho Sess.Laws ch. 75, p. 150. However, when Carter filed this appeal the statute provided that he had 60 days in which to do so. His appeal, filed 49 days after the entry of judgment, was timely under the statute. In view of this conflict and in the interest of justice, we decline the State's request to dismiss Carter's appeal. We note, however, that our ruling is limited to the specific and unique circumstances of this case. We recognize that in matters of procedure and appellate practice this Court derives its power from the constitution rather than the legislature.

The State next argues that the issue of ineffective assistance of counsel is res judicata. The State contends that because the issue of trial counsel's competence was raised before this Court on direct appeal, appellant is precluded from raising it again in a post-conviction proceeding.

As Justice Bakes observed in his concurrence in State v. Kraft, 96 Idaho 901, 906, 539 P.2d 254, 259 (1975), "The question of competency of counsel is an extremely complex factual determination which, in all but the most unusual cases, requires an evidentiary hearing for determination. (Citation omitted.) The resolution of those factual issues for the first time upon appeal, based upon a trial record in which competence of counsel was not at issue, is at best conjectural." Justice Bistline, concurring in State v. Ruth, 98 Idaho 879, 881, 574 P.2d 1357, 1359 (1978), outlined the quandry facing an appellant with an ineffective assistance of counsel claim:

"If, on appeal, counsel prematurely raises the competency of counsel issue, and gains an adverse determination in this Court, he may very well subject himself to like charges of incompetency--keeping in mind the threat of res judicata should the client later seek to have his claim of incompetence of trial counsel heard at a post-conviction proceeding. On the other hand, there is an equal threat of later being told that competency of counsel should have been raised on direct appeal whenever appellant counsel is other than trial counsel."

As one of several issues on direct appeal, Carter asserted that he was denied the effective assistance of counsel at trial. He set forth several alleged deficiencies in support of his claim, including the "failure to request the suppression of certain evidence;" the same deficiency now before us. See State v. Carter, 103 Idaho at 923, 655 P.2d at 440.

In disposing of Carter's ineffective assistance claim on direct appeal, we simply stated that the alleged deficiencies fell into the area of strategic and tactical choices and that the record was "devoid of any indication that such choices were a result of inadequate preparation or ignorance of counsel." Id. "Absent such evidence," we held "it must be presumed that defense counsel's actions were not due to inadequate preparation or ignorance, and that defendant's representation by counsel was competently carried out." Id. However, and of crucial importance to the present proceeding, we went on to state that, "If evidence to the contrary is available outside the record, it may be presented only by way of a petition for post-conviction relief...." Id. n. 4. This is precisely what appellant has done in the present case. Thus, it would be anomalous for us to hold, after directing appellant that the proper way to pursue his claim was through a petition for post-conviction relief, that post-conviction relief is now barred by res judicata.

II.

Having disposed of the State's threshold arguments, we now turn to the merits of Carter's ineffective assistance of counsel claim. The gravamen of that claim lies in trial counsel's failure to move to suppress the statements Carter made to Deputy Sheriff Johnson and prosecutor Blair Grover during custodial interrogation. Carter asserts that those statements were obtained in violation of his fifth and sixth amendment rights and that trial counsel's failure to move for their suppression constituted the kind of objectively verifiable attorney error which requires that any resulting conviction be vacated.

The sixth amendment to the United States Constitution provides that an accused person shall "have the assistance of counsel for his defense." This right is made obligatory on the states through the due...