Dunlap v. State

CourtUnited States State Supreme Court of Idaho
Decision Date05 January 2022
Docket Number47179
PartiesTIMOTHY ALAN DUNLAP, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.

TIMOTHY ALAN DUNLAP, Petitioner-Appellant,

STATE OF IDAHO, Respondent.

No. 47179

Supreme Court of Idaho, Boise

January 5, 2022

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Caribou County. Mitchell W. Brown, District Judge.

The judgment of the district court is affirmed.

Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant Timothy Alan Dunlap. Shannon N. Romero argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent State of Idaho. L. LaMont Anderson argued.


This is an appeal from an order dismissing a petition for post-conviction relief. Timothy Dunlap was sentenced to death by a Caribou County jury in 2006. In 2008, Dunlap filed a petition for post-conviction relief, alleging that numerous errors had occurred at his 2006 sentencing hearing. The district court dismissed the petition in its entirety. Dunlap appealed to this Court. In State v. Dunlap, 155 Idaho 345, 313 P.3d 1 (2013) ("Dunlap V"), this Court affirmed the dismissal of all but two of Dunlap's claims. These were: (1) multiple claims of prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83 (1963) and Napue v. Illinois, 360 U.S. 264 (1959); and (2) ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).

Upon remand, the district court held two evidentiary hearings, one involving each of Dunlap's remaining claims. The district court found that Dunlap had failed to establish either claim and denied Dunlap's request for post-conviction relief. Dunlap timely appealed. For the reasons discussed below, we affirm the decisions of the district court.


I. Factual and Procedural Background

In 1991, Dunlap pleaded guilty to the first-degree murder of Tonya Crane, a bank teller in Soda Springs. The plea agreement allowed the State to seek the death penalty, which it did. Dunlap was sentenced to death by the district court in 1992.

After this Court affirmed Dunlap's conviction and sentence on direct appeal, State v. Dunlap, 125 Idaho 530, 873 P.2d 784 (1993) ("Dunlap I"), Dunlap filed a petition for post-conviction relief, challenging both his conviction and sentence. This Court once more affirmed his conviction. Dunlap v. State, 141 Idaho 50, 106 P.3d 376 (2004) ("Dunlap II"). The State, however, conceded that an error had occurred in the original sentencing hearing and agreed that Dunlap should be resentenced. Because the United States Supreme Court had decided Ring v. Arizona, 536 U.S. 584 (2002), in the interim, which held that the Sixth Amendment right to a jury trial extended to imposition of the death penalty, this Court remanded the case for resentencing by a jury instead of a judge. Id.

The State again sought the death penalty. This time, the Idaho Attorney General's office was appointed as a special prosecutor. Three Deputy Attorneys General ("DAGs") in the Prosecutorial Assistance Unit of the Attorney General's office were assigned to prosecute Dunlap at his resentencing hearing: Kenneth Robins (lead counsel), Justin Whatcott, and Scott Smith.

Dunlap was represented by two attorneys at the resentencing hearing: David Parmenter and James Archibald. Parmenter was lead counsel and Archibald was co-counsel. The defense team also retained an investigator, Roseanne Dapsauski, as a mitigation specialist.

District Judge Don Harding presided over the resentencing hearing, which took place on seven separate days in February 2006. The State presented testimony from fourteen witnesses: Mary Goodenough, a bank teller who was working the day Tonya Crane was shot; Margo May, a bank employee who was also working the day Tonya Crane was shot; Claude Mendenhall, a bank patron who was present outside the bank the day Tonya Crane was shot; Steve Somsen, a deputy sheriff with the Caribou County Sheriff's Department; William Long, an FBI agent; Sheriff Ray Van Vleet, the Caribou County Sheriff; Dr. John Obray, a surgeon who had attempted to treat Tonya Crane after she was shot (Obray's deposition was read to jury as he did not testify live); Jerry Bavaro, a Soda Springs police officer; Dorothy Schugt, the owner of the motel where Dunlap stayed while in Soda Springs; Blynn Wilcox, the Soda Springs Chief of Police; Dr. Kerry Patterson, the pathologist who performed the autopsy of Tonya Crane; Don Wyckoff, the lab


manager for the State Crime Lab; Dwight Van Horn, an Idaho State Police firearms inspector; and Marilyn Young, an Indiana newspaper reporter Dunlap had contacted to discuss his prior crime in Indiana as well as Tonya Crane's murder.

Dunlap then presented testimony from seven witnesses: Terry Clem, Dunlap's first-grade teacher; Dr. Mark Cunningham, an expert clinical and forensic psychologist; Judge Richard Striegel, a judge in Indiana who had prior dealings with Dunlap; Mark Dunlap, Dunlap's younger brother; Suzanne Nelson, Dunlap's younger sister; Patricia Henderson, Dunlap's mother; and Dr. Craig Beaver, an expert neuropsychologist. Video depositions of Clem and Striegel were played for the jury, and Cunningham's testimony from a prior post-conviction proceeding was read to the jury; only Dunlap's family members and Beaver testified live.

In rebuttal, the State presented testimony from Daryl Matthews, M.D., a forensic psychiatrist. Dunlap presented no other witnesses in response to Matthews' testimony. The State then read several victim impact statements to the jury and Dunlap made a statement in allocution. Both the State and Dunlap presented closing arguments.

After the close of evidence,

[t]he jury found that the State proved three statutory aggravating factors beyond a reasonable doubt, specifically (1) by the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life (I.C. § 19- 2515(9)(f)) (the utter disregard aggravator); (2) the murder was committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, kidnapping or mayhem and the defendant had the specific intent to cause the death of a human being (I.C. § 19-2515(9)(g)) (the specific intent aggravator); and (3) the defendant, by prior conduct or conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society (I.C. § 19-2515(9)(h))1 (the propensity aggravator). The jury further found that all the mitigating evidence, weighed against each aggravator, was not sufficiently compelling to make imposition of the death penalty unjust.

Dunlap V, 155 Idaho at 358, 313 P.3d at 15 (footnotes omitted). Then, "[i]n accordance with the verdict, the district court entered a judgment sentencing Dunlap to death." Id.

Dunlap filed a petition for post-conviction relief with the district court on May 27, 2008, alleging that numerous reversible errors had occurred at his 2006 resentencing hearing which entitled him to a new sentencing hearing. On November 24, 2009, the district court granted the State's motion for summary dismissal of the petition. Dunlap appealed to this Court, which affirmed the district court's dismissal of all but two of Dunlap's claims: (1) prosecutorial


misconduct under Brady and Napue; and (2) ineffective assistance of counsel under Strickland. We remanded the case, instructing the district court to hold an evidentiary hearing on those issues.

Upon remand, and at the request of the parties, the district court bifurcated the two claims, holding a separate evidentiary hearing for each. At the first evidentiary hearing, held August 26, 27, and 28, 2014, the parties presented evidence on the prosecutorial misconduct claim. On July 29, 2015, the district court denied Dunlap relief under both Brady and Napue and entered a partial judgment of dismissal as to Dunlap's prosecutorial misconduct claim. Dunlap petitioned this Court for permission to appeal this initial determination, which this Court denied on September 21, 2015. Dunlap also moved the district court for reconsideration of the dismissal, which the district court denied on September 30, 2015.

The second evidentiary hearing was held in April 2016, and consisted of ten days of testimony. The parties presented evidence regarding Dunlap's ineffective assistance of counsel claims. After granting multiple extensions of time for both parties, the district court denied relief and entered a final judgment dismissing Dunlap's petition for post-conviction relief in its entirety on May 28, 2019. Dunlap moved for reconsideration of the district court's dismissal of his postconviction relief claims, which the district court denied on December 3, 2019.

Dunlap timely appealed.

II. Standard of Review

"Post-conviction proceedings are civil in nature and therefore the applicant must prove the allegations by a preponderance of the evidence." Dunlap II, 141 Idaho at 56, 106 P.3d at 382. "Upon review of a district court's denial of a petition for post-conviction relief when an evidentiary hearing has occurred, this Court will not disturb the district court's factual findings unless they are clearly erroneous." McKinney v. State, 133 Idaho 695, 700, 992 P.2d 144, 149 (1999). "A factual finding is clearly erroneous only if it is not supported by 'substantial and competent evidence in the record.'" Stuart v. State, 127 Idaho 806, 813, 907 P.2d 783, 790 (1995) (quoting Pace v. Hymas, 111 Idaho 581, 589, 726 P.2d 693, 701 (1986)).

"This Court exercises free review of the district court's application of the relevant law to the facts." Dunlap II, 141 Idaho at 56, 106 P.3d at 382. However, the "'duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.'" Kyles v. Whitley, 514 U.S. 419, 422 (1995) (quoting Burger v. Kemp, 483 U.S. 776, 785 (1987)). This is because

the penalty of death is

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