Fairchild v. State

• Decision Date: 13 February 1996
• Docket Number: No. 21294,21294
• Citation: 128 Idaho 311,912 P.2d 679
• Parties: Roger Kim FAIRCHILD, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 679

912 P.2d 679

128 Idaho 311

Roger Kim FAIRCHILD, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 21294.

Court of Appeals of Idaho.

Feb. 13, 1996.

Petition for Review Denied March 25, 1996.

[128 Idaho 314] Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine County; J. William Hart, District Judge.

Order summarily dismissing application for postconviction relief, affirmed.

Lynn, Scott, Hackney & Jackson, Boise, for appellant. John C. Lynn argued.

Alan G. Lance, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.

PERRY, Judge.

In this case we are asked to review the summary dismissal of an application for postconviction relief. After reviewing the record and applicable law, we affirm.

I. FACTS AND PROCEDURE

Based on information from confidential informants and an ongoing drug investigation, a Ketchum police officer obtained a search warrant for a mobile home and two vehicles which belonged to Roger Kim Fairchild. As a result of the search, Fairchild was charged with possession of cocaine with intent to deliver and possession of marijuana in excess of three ounces. I.C. §§ 37-2732(a)(1)(A), -2732(e). In response to defense counsel's request for an independent drug test, the prosecutor inadvertently delivered the wrong bindle of cocaine to Fairchild's expert witness. When this was revealed during the first trial on these charges, the trial court declared a mistrial upon Fairchild's motion. Fairchild then sought dismissal of the case on double jeopardy grounds. The trial court denied Fairchild's motion to dismiss and scheduled a new trial date. The jury at his second trial found Fairchild guilty of both charges. Fairchild appealed to this Court on several issues. This Court affirmed the judgments of conviction and sentences imposed. State v. Fairchild, 121 Idaho 960, 829 P.2d 550 (Ct.App.1992).

Fairchild filed a post-conviction relief application in March 1993 in which he alleged thirteen errors by his counsel and the trial court. The state filed a motion for dismissal of the application or, in the alternative, for summary judgment. Fairchild filed a partial motion for summary judgment, requesting relief on three claims in his post-conviction application. The district court heard oral argument on the motions and summarily dismissed the application pursuant to Idaho Code Section 19-4906(c). Fairchild now appeals, and we affirm.

II. ANALYSIS

An application for post-conviction relief initiates a proceeding which is civil in 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 a petition 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); Hays v. State, 113 Idaho 736, 739, 747 P.2d 758, 761 (Ct.App.1987); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct.App.1986).

[128 Idaho 315] 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 toIdaho 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 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 petition. 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 application without an evidentiary hearing, we will determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file; moreover, the court will liberally construe the facts and reasonable inferences in favor of the non-moving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993).

Fairchild raised thirteen grounds for relief in his post-conviction application. The district court summarily dismissed the application in its entirety. On appeal, Fairchild raises the following issues: (1) whether the trial court erred in failing to conduct an in-camera hearing regarding the informants and in failing to order full identification of the police officer involved in the surveillance of the confidential informant; (2) whether Fairchild's counsel was ineffective in failing to request an in-camera interview of the confidential informants and in failing to appeal the denial of trial counsel's request to examine the police officers; (3) whether Fairchild's counsel erred by failing to properly argue the double jeopardy claim during the trial and the direct appeal; (4) whether the district court erred in granting summary dismissal of the application in light of a genuine issue of fact regarding the violation of Fairchild's Miranda rights; and (5) whether the district court erred in granting summary judgment without permitting pretrial discovery.

Fairchild claims that the trial court erred by not ordering disclosure of the identities of the confidential informants and in not conducting an in-camera interview. ¹ The The state did not call confidential informant # 539 at any time during the proceedings. The only matter to which the confidential informant's testimony may have been relevant was the validity of the search warrant. During Fairchild's direct appeal, this Court specifically addressed the validity of the search warrant and the trial court's refusal to order disclosure of the identity of both confidential informants and found no error. Further, we held:

                [128 Idaho 316] government's privilege to withhold from disclosure the identity of confidential informers, which was first recognized in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), is embodied in I.R.E. 509 and I.C.R. 16.  As this Court stated in Fairchild's direct appeal, the extent of the I.R.E. 509 privilege is left to the discretion of the trial court.  Fairchild, 121 Idaho at 965, 829 P.2d at 555.   Idaho  Rule of Evidence 509(c)(3) provides that in a criminal trial where the state invokes the privilege, if it appears "that an informer may be able to give testimony relevant to any issue in a criminal case ... the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer, can, in fact, supply that testimony."
                

The delivery of the cocaine to the informant, who was searched before and after going into the trailer, was uncontroverted, and the communications between Fairchild and the informant were recorded and monitored by the officer. On this information which was supplied by the officer to the magistrate in support of the search warrant, the reliability of the informant was established.

Fairchild, 121 Idaho at 965-66, 829 P.2d at 555-56 (emphasis added).

Fairchild challenged the validity of the search warrant and the nondisclosure of the informant's identity on his direct appeal. To the extent that Fairchild raises a new argument specifically regarding the lack of an in-camera hearing, we find that it is so related to issues addressed on direct appeal that it was, or should have been, settled during that appeal. Therefore, we will not now address it. An application for post-conviction relief does not require the courts to consider again issues which were raised and decided on direct appeal. Brandt v. State, 118 Idaho 350, 352, 796 P.2d 1023, 1025 (1990). Neither are we required to examine new arguments in post-conviction proceedings which address the same issues raised and decided on appeal. Id.

Similarly, Fairchild argues that the trial court erred in failing to require an in-camera examination of certain police officers involved in a surveillance of confidential informant # 539. This issue was specifically raised by Fairchild in his appellate brief in his direct appeal. To the extent that he was unsatisfied with the disposition of this issue through the direct appeal, Fairchild had the opportunity to petition to the Idaho Supreme Court for review of this issue. Fairchild petitioned for review on several other issues, but did not address the in-camera examination. Fairchild waived his argument in this regard. The district court did not err in summarily dismissing...