Giddings v. Kirkegard
| Decision Date | 28 October 2021 |
| Docket Number | CV 16-26-H-DLC-JTJ |
| Parties | JOSHUA DAVID GIDDINGS, Petitioner, v. LEROY KIRKEGARD, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents. |
| Court | U.S. District Court — District of Montana |
FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Petitioner Joshua David Giddings's application for writ of habeas corpus under 28 U.S.C. § 2254. Giddings is a state prisoner proceeding pro se.
Shortly after 500 p.m. on Friday, July 22, 2005, in Helena, Montana Randy Vook Vook arrived home from work to find the body of his daughter, Amy Rolfe Amy, brutally murdered and obscured under a pile of laundry.[1] Vook and his wife shared the home with Amy, Amy's boyfriend, Mike Mix, and Amy's three young sons.
At 5:30 that evening, Joshua Giddings appeared across town at the home of John Foster.[2] Giddings was wet, nervous, jittery, and appeared to be under the influence of methamphetamine. Giddings advised Foster, “Mike Mix just killed his girlfriend” and described the event in lurid detail.[3] Foster loaned Giddings some clothes to change into and provided Giddings a plastic bag upon his request. Giddings went outside and placed items into the bag. Foster and his girlfriend, Jennifer Casman, gave Giddings a ride to Donald Duff's (Duff) residence. Giddings placed the plastic bag, which was now full of items, in the trunk of the vehicle. Both Foster and Casman noticed an odor of gasoline or some other flammable liquid coming from the trunk. Upon arrival at Duff's trailer, Giddings removed the items from the back of the trunk and attempted to give Foster a carpenter's level. Foster refused the item. Giddings also asked Foster for a ride to the mountains so he could burn the contents of the items from the trunk; Foster again refused.
Giddings attempted to bring the plastic bag into Duff's residence; Duff would not allow it inside. Giddings began to explain that he had witnessed the aftermath of Mix murdering Amy and had fled from the scene. After Casman and Foster dropped Giddings off, they drove immediately to the Helena Police Department and reported what had just happened. Officers proceeded to Duff's residence and arrested Giddings.
In a shed outside Duff's trailer, the officers recovered the plastic bag, the carpenter's level, and some cardboard boxes. Amy's purse, cell phone, clothing items, and sneakers were found in the plastic bag, along with other items taken from the Vook residence. The carpenter's level, which subsequent testing revealed contained Giddings's left index fingerprint, had been removed from the Vook kitchen.
Giddings was charged on July 27, 2005, in the First Judicial District Court, Lewis and Clark County, with: Deliberate Homicide, Tampering with Evidence, Solicitation (Tampering with Witnesses or Informants), and Criminal Possession of Dangerous Drugs (methamphetamine).
Prior to Giddings's jury trial, his defense team filed a petition for a writ of supervisory control with the Montana Supreme Court, seeking to stay the trial and/or requesting the Supreme Court either overrule the trial court's denial of Giddings motions to dismiss or continue the trial based upon purported discovery violations. The trial began as scheduled on January 8, 2007 but was stayed during voir dire while the parties awaited a decision on the writ. The Montana Supreme Court denied the writ and determined direct appeal would provide Giddings an adequate remedy for his claimed pretrial violations. See, Giddings v. First Judicial District Court, OP 07-0012, Or. (Mont. Jan. 11, 2007).[4]
The trial proceeded and Giddings was ultimately convicted of Deliberate Homicide, Tampering With/Fabrication of Evidence, and Criminal Possession of Dangerous Drugs. See, (Doc. 1 at 2, ¶ 3). Giddings was acquitted of Solicitation/Tampering with Witnesses. (Doc. 19-24 at 2). Giddings received a sentence of life without the possibility of parole for Deliberate Homicide. On the Tampering and Criminal Possession charges, the trial court found Giddings met the statutory definition of being a Persistent Felony Offender (“PFO”) and sentenced Giddings to 50 years for Tampering and 50 years for Criminal Possession. The sentences were ordered to run consecutively to one another and consecutively to the deliberate homicide conviction. (Doc. 1 at 2 at ⁋4; Doc. 19-24 at 3-4). Judgment was entered on April 6, 2007. See, (Doc. 19-1 at 31, Doc. Seq. 448).
Giddings filed his notice of appeal on May 29, 2007 and his opening brief on February 5, 2008. The Montana Supreme Court affirmed Giddings's convictions on all grounds. State v. Giddings, 2009 MT 61, 349 Mont. 347, 208 P.3d 363; cert. denied, Giddings v. Montana, 558 U.S. 892 (Oct. 5, 2009).
As discussed above, Giddings relied upon the defense of third person culpability at trial: Giddings claimed Richard Alan King (King) killed Amy and that he was only involved in assisting King remove items from the crime scene after Amy's death. Giddings's underlying criminal case involved extensive motion practice.
On December 8, 2006, a hearing was held on Giddings's first motion to dismiss. There, Giddings argued the State intentionally destroyed exculpatory evidence and failed to provide discovery. In particular, Giddings focused on notes Detective Mark Ekola (Ekola) took during his four interviews with King, which were subsequently destroyed after Ekola wrote his formal reports.[5] A second hearing was held on January 2, 2007. Giddings challenged the state's failure to disclose court ordered discovery and objected to the state's efforts to endorse additional jailhouse informants after indicating only one such informant would testify.[6] While the defense was aware jailhouse informant Shannon Rawlins would likely testify at trial, they subsequently learned of the state's intent to call additional jailhouse witnesses, including John Gillette (Gillette). The district court ultimately denied Giddings's motion.
Prior to trial the district court entered an order in limine which excluded “any testimony or other evidence concerning whether [Amy] Rolfe disliked or was afraid of Giddings, ”[7] due to the highly prejudicial nature of such testimony. During trial, Candice Vook (Candice), Amy's mother, testified that Giddings called their home on July 22, 2005. Candice asked Giddings not to call anymore and hung up the phone. The following exchange occurred during trial:
Outside the presence of the jury, the defense requested the prosecution be admonished not to violate the order in limine again.[8] During Detective Ekola's testimony, the prosecution elicited similar testimony that King would have been afraid of Giddings. Giddings's defense team, outside the presence of the jury, again objected.[9]
Finally, during King's testimony, the prosecution elicited testimony that Giddings was not allowed at Amy's ex-husband's residence because she did not want him there. The defense moved for a mistrial.[10] The district court denied the motion for a mistrial, but admonished the prosecution not to make any further inquiries of King.[11] The defense motioned the court to lift restrictions that had been placed upon the cross-examination of King as a sanction for the prosecution's refusal to abide by the court's order.[12] The district court denied the request.[13]
Prior to King's testimony, the parties conferred in chambers to discuss potential limitations on the cross-examination.[14] Defense counsel believed they should be afforded wide latitude to discuss information pertaining to King's credibility and conduct, potential impeachment information, and also argued evidence showing that King killed Amy and, thus, exculpated Giddings, should be admissible. Defense counsel argued anything having to do with King being a violent man should be admitted as relevant. The prosecution objected asserting King's prior crimes were irrelevant, that Giddings could not use specific instances of misconduct to impeach King, that what King did after the incident was not relevant to King's state of mind, and that evidence of King's assault on a former girlfriend was based solely on hearsay and was inadmissible.[15]
The district court ruled while an accused may introduce evidence tending to prove another person may have committed the crime, such evidence may also be excluded when it does not sufficiently connect the third-party to the crime.[16]Giddings was allowed to question King about his drug activity during the week of July 18, 2005, his arrest on drug charges in September of 2005, and the statements he made to Mix about bad drug deals, but the other lines of questioning were excluded.
During trial an edited video of an interview of Giddings was played for the jury and the jurors were provided a transcript. The state argued the videotape should be allowed in the jury room; Giddings contended it should not because it was cumulative and would place undue emphasis on Giddings's statements.[17] The court determined the video was not testimonial. Because Giddings did not testify at trial, the court determined the videotape constituted a statement that was voluntarily given.
The following issues were raised on direct appeal:
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