Cooper v. State
| Citation | 96 Idaho 542,531 P.2d 1187 |
| Decision Date | 18 February 1975 |
| Docket Number | No. 11522,11522 |
| Parties | Guy Donovan COOPER, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent. |
| Court | United States State Supreme Court of Idaho |
William Becker, Pocatello, for plaintiff-appellant.
W. Anthony Park, Atty. Gen., James P. Kaufman, Asst. Atty Gen., Boise, for defendant-respondent.
This is an appeal from an order of the district court dismissing an application for post-conviction relief. The appellant petitioned the district court to review and set aside his two judgments of conviction for robbery. Those judgments had been entered on December 6, 1971, following the district court's entry of appellant's guilty pleas. The State, through the prosecuting attorney of Bannock County, moved to dismiss the application for post-conviction relief.
The robberies in question occurred on September 25 and 28, 1971, in Pocatello. On September 29, 1971, appellant signed a police consent form and appeared in a lineup. At that lineup he was identified by three witnesses. As a result of those identifications appellant was charged with the two robberies and with statutory rape. The rape charge was later dismissed.
On November 8, 1971, appellant pleaded not guilty to both robbery charges. At the request of defense counsel, appellant received a psychological evaluation sometime during the month of November 1971. On December 3, 1971, after consultation with defense counsel, appellant completed a court-prescribed questionnaire that inquired into his understanding of the charges and the voluntariness of his proposed changed pleas. On December 6, 1971, appellant withdrew his pleas of not guilty and pleaded guilty to both charges. Before accepting his guilty pleas, the district court examined appellant concerning his understanding of the charges, the voluntariness of his pleas and his recognition that by pleading guilty he was waiving several constitutional rights. The district court based its interrogation on the December 3rd pre-pleading questionnaire. Appellant waived any additional time prior to sentencing as well as a pre-sentence investigation. The district court sentenced appellant to two concurrent indeterminate terms of fifteen years.
In June 1972, appellant filed his application for post-conviction relief. He asked that the robbery convictions be set aside, claiming that the September 29, 1971 lineup had violated his constitutional rights and that his guilty pleas had been coerced. Cooper claimed he voluntarily appeared in the lineup in regard to only one of the robberies (it is unclear for which robbery appellant supposedly consented to appear). He claimed that since he was the only subject with a black eye, the lineup was unfairly suggestive. He maintained that he was entitled to representation by counsel during the lineup. Cooper also argued that he pleaded guilty for the following reasons: (1) To get out of the county jail; (2) because counsel told him not to seek a jury trial due to excessive costs; and (3) because counsel advised him that if he went to trial he would receive a much more severe sentence.
The prosecuting attorney moved to dismiss the application arguing that it failed to set forth facts or information upon which post-conviction relief could be granted. Attached to the State's motion were copies of the pre-pleading questionnaire, the reporter's transcript of the proceedings on December 6, 1971, wherein appellant changed his pleas to guilty, and appellant's signed consent form to participate in the lineup of September 29, 1971. Appellant's counsel moved to amend the original application for post-conviction relief by adding to it additional grounds for relief. The amendment restated some of Cooper's earlier allegations and also alleged that he had been suffering severe mental difficulties during the criminal proceedings. Cooper maintained that he was 'forced' to plead guilty because of these mental problems and the tainted identification made during the lineup.
The State moved to dismiss as to the original petition and the amendment. Attached to the State's motion was an affidavit of the Bannock County Public Defender that he had attended the lineup at the request of the district court and was appointed to represent appellant on the day following the lineup. Also attached thereto was a copy of the mental evaluation of appellant made during November 1971.
Following a hearing on the motions, the trial court gave notice of its intention to dismiss the application for post-conviction relief. The order of dismissal was entered on December 20, 1973, wherein the trial court found:
'* * * as a matter of fact, that at the time the movant entered a plea of guilty to the offense as charged, he was aware of the nature of the offense and the consequences of his plea.
Based upon the foregoing findings, the court concludes that the petition of the movant is without foundation and the same should be dismissed.'
In early January 1973, appellant wrote a letter to this Court which we accepted as notice of appeal.
The appellant makes one assignment of error, i. e., the district court erred in dismissing his application for post-conviction relief without holding an evidentiary hearing to fully explore the contentions raised by the application. He maintains the district court should have investigated through the medium of an evidentiary hearing his application wherein he raised questions as to: (1) the unfair suggestiveness of the lineup; (2) the lack of counsel at the lineup; (3) pleas induced by false statements of counsel; and (4) appellant's mental capacity during the criminal proceedings.
We reaffirm several rules relevant to post-conviction relief. In proceedings under the Uniform Post-Conviction Procedure Act the applicant has the burden of proving the allegations which he contends entitle him to relief by a preponderance of the evidence. Tramel v. State. 1 With certain exceptions stated hereafter, until the allegations contained in a verified application for post-conviction relief are controverted by the State, they must be deemed to be true for the purpose of determining if an evidentiary hearing is to be held. Smith v. State. 2 A motion to dismiss, unsupported by affidavits, depositions or other materials, does not controvert the allegations in the petition. When the alleged facts, even if true, would not entitle the applicant to relief, the trial court may dismiss the application without holding an evidentiary hearing. Id. Allegations contained in the application are insufficient for the granting of relief when they are clearly disproved by the record of the original proceedings, or do not justify relief as a matter of law. Pulver v. State. 3 The trial court may summarily dispose of an application for post-conviction relief '* * * when it appears from the pleadings and the record that there is no genuine issue of material fact and the moving part is entitled to judgment as a matter of law.' Larsen v. May. 4
On this appeal the appellant contends the lineup of September 29, 1971, was unfairly suggestive because he was the only participant in the confromtation with a black eye. He alleges this was a distinguishing characteristic which tainted his identification by three witnesses viewing the lineup. He maintains the lineup and witness identification violated his constitutional rights and had an impermissibly coercive effect during plea negotiations, thus his guilty pleas subject to collateral attack and are invalid.
In State v. Sadler, 5 this Court cited the effect of recent United States Supreme Court cases l on pre-trial identification procedures. We recognized that Kirby v. Illinois has elevated the due process test used in Stovall v. Denno '* * * to controlling stature in determining whether a confrontation prior to the commencement of formal judicial criminal proceedings is improper.' 7 The Stovall test is twofold: (1) Was the identification confrontation so unnecessarily suggestive and conductive to irreparable mistaken identification that the defendant was denied due process of law? (2) A claimed violation of due process depends on the totality of the circumstances suppounding the lineup. 8
Appellant appeared in the lineup on the day following the second robbery. In his affidavit, appellant's attorney stated: (1) At the request of the district court, he (the attorney) was present during the lineup when appellant was positively identified by at least three witnesses; (2) Appellant had a black eye during the lineup; (3) Counsel conducted an extensive cross-examination of the victim of the September 28, 1971, robbery during a preliminary hearing, at which time the victim positively identified the appellant; (4) That victim testified appellant did not have a black eye at the time of the robbery; (5) Counsel advised appellant there existed legal questions he could raise concerning the lineup; and (6) counsel was never permitted to raise the question of the black eye or other issues because appellant decided to plead guilty.
Judged in the totality of the circumstances surrounding the lineup, we conclude that confrontation was not so unnecessarily suggestive as to deny appellant due process of the law. The existence of the black eye at the time of the lineup was not an identifiable characteristic of the perpetrator of the robbery, and does not elevate the lineup to the requisite level of suggestiveness. 9
Appellant claims the lineup was defective because he was denied the assistance of counsel. This contention cannot be sustained by current authority. 10 Appellant's attorney adequately performed the duties of advocacy intended by having counsel present at an identification confrontation. He was present at the lineup, albeit at the request of the district court. He extensively cross-examined one of the identifying witnesses at a preliminary hearing. He advised appellant that several legal issues existed concerning the lineup and...
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