Hall v. State

• Decision Date: 02 December 2013
• Docket Number: Nos. 38704,38528.,s. 38704
• Citation: 155 Idaho 610,315 P.3d 798
• Court: Idaho Supreme Court
• Parties: Erick Virgil HALL, Petitioner, v. STATE of Idaho, Respondent.

155 Idaho 610

315 P.3d 798

Erick Virgil HALL, Petitioner,

v.STATE of Idaho, Respondent.

Nos. 38704

38528.

Supreme Court of Idaho, Boise, August 2013 Term.

Dec. 2, 2013.

Sara B. Thomas, State Appellate Public Defender, Boise, for petitioner. Ian Hall Thomson argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. LaMont Anderson argued.

HORTON, Justice.

This is a permissive appeal arising from two interlocutory orders entered by the district court in Erik Virgil Hall's case seeking post-conviction relief from his death sentence for the murder of Cheryl Hanlon, in which Hall alleges ineffective assistance of trial counsel.

I. FACTUAL AND PROCEDURAL BACKGROUND

Hall has been convicted and sentenced to death twice. First, for kidnapping, murdering, and raping Lynn Henneman (Hall I) and, second, for the rape and murder of Cheryl Hanlon (Hall II). At the time Hall's petition for post-conviction relief was pending in Hall I, his trial in Hall II was underway. During the overlap of Hall I and Hall II, there were numerous communications between Hall's trial attorneys, Rob Chastain and Deborah Kristal, representing him in Hall II, and Mark Ackley and Paula Swensen from the State Appellate Public Defender's (SAPD) office, handling Hall's post-conviction proceedings in Hall I. It is the communications between Ackley, Swensen, and Hall's trial counsel that forms the basis for a potential conflict of interest in this case, given that Hall alleges ineffective assistance of trial counsel in his second petition for post-conviction relief.¹

On February 14, 2008, Hall filed a petition for post-conviction relief under I.C. §§ 19–2719 and 19–4901 in connection with his Hall II conviction. On June 29, 2010, the SAPD, Hall's post-conviction counsel, filed an Ex Parte Notice of Possible Conflict of Interest with the district court.

The Ex Parte Notice stated that the SAPD had "cooperated with trial counsel in Hall II by sharing testing and expert information obtained in Hall I." Additionally, the Ex Parte Notice stated "[a]fter an internal review, it was determined that independent counsel should be hired to independently evaluate the conflict. Dennis Benjamin has been contacted and has agreed to evaluate the conflict and advise Mr. Hall whether or not the conflict should be waived."

With no knowledge of the SAPD's Ex Parte Notice, the State filed a Motion for Inquiry into Possible SAPD Conflict on July 30, 2010. The district court heard oral argument on the State's Motion on August 26, 2010. At the hearing, the court requested that the SAPD supplement its original Ex Parte Notice to include a more detailed factual basis of the SAPD's possible conflict. In response, the SAPD filed an amended Ex Parte Notice on August 30, 2010.

The Affidavit of Dennis Benjamin was filed with the district court on August 30, 2010. Benjamin's affidavit provides, "I have been hired by the [SAPD] to determine whether they have a conflict of interest in representing Erick Hall and to advise Mr. Hall of my findings. In this matter, my client is Mr. Hall." Benjamin concluded that the contacts between the SAPD and Hall's trial counsel did not create a conflict of interest. Benjamin stated, "While it is clear that the lawyers communicated with one another about Mr. Hall and shared case related information, all four lawyers and investigators state that the SAPD did not give trial counsel advice on how to proceed in Hall II."

Although Benjamin conducted an extensive inquiry into whether the SAPD was conflicted, the district court did not question Benjamin about his findings. Rather, the court believed that Benjamin was too closely aligned with the SAPD to be truly independent, stating that "[a]lthough the court holds Mr. Benjamin in high regard, he is not the Court's choice of independent counsel and would not have been this Court's choice of independent counsel had the SAPD consulted with the Court before choosing him."²

On December 27, 2010, the district court issued its Memorandum Decision and Order Appointing Keith Roark as Independent Counsel (First Memorandum Decision). The court's First Memorandum Decision provides:

This Court's first duty is to determine whether a conflict exists, and the Court is presently lacking enough facts to make that determination. Having considered a number of ways to structure the inquiry, and being mindful of the attorney-client privilege issues in this case, the Court hereby appoints R. Keith Roark as independent conflict counsel.... Mr. Roark will represent the Petitioner and shall conduct an inquiry into whether a conflict exists. As part of this appointment, the Court authorizes Mr. Roark to conduct a thorough and searching review of the SAPD's pre-trial, trial and pre-sentence involvement in the trial of Hall II up to its appointment to represent the Petitioner in this Hall II post-conviction and appeal.

The district court also held that "the cost of independent conflict counsel appointed by the Court shall be borne by the SAPD."

On January 10, 2011, the SAPD filed a Motion to Reconsider Memorandum Decision. The district court denied the motion and issued its Memorandum Decision and Order Denying the Motion to Reconsider; and Supplementing the Original Decision and Order (Second Memorandum Decision) on February 23, 2011.

On February 11, 2011, Hall filed a motion for permission to appeal the district court's First Memorandum Decision under I.A.R. 12. The district court denied Hall's motion seeking permissive appeal. However, on March 23, 2011, this Court granted Hall's motion seeking permissive appeal under I.A.R. 12.

Subsequently, on March 29, 2011, Hall requested permission to appeal the district court's Second Memorandum Decision, which this Court also granted. On April 20, 2011, this Court consolidated both of Hall's permissive appeals.

II. STANDARD OF REVIEW

"Constitutional issues and the construction and application of legislative acts are pure questions of law over which this Court exercises free review." State v. Statton, 136 Idaho 135, 136, 30 P.3d 290, 291 (2001). The adequacy of the inquiry into a conflict of interest is a constitutional issue over which this Court exercises free review. Id. Additionally, this Court exercises "free review over matters of statutory interpretation." KGF Dev., LLC v. City of Ketchum, 149 Idaho 524, 527, 236 P.3d 1284, 1287 (2010). Furthermore, due to the "unusual posture" of cases heard on permissive appeal, this Court "is constrained to rule narrowly" and address only the precise questions that were framed by the motion seeking permissive appeal and granted by the Court. Aardema v. U.S. Dairy Sys., Inc., 147 Idaho 785, 789, 215 P.3d 505, 509 (2009) (quoting Winn v. Frasher, 116 Idaho 500, 501, 777 P.2d 722, 723 (1989) ).

III. ANALYSIS

A. Petitioners seeking post-conviction relief from a death sentence have a statutory right to conflict-free counsel.

An issue of first impression is presented in this case; whether a petitioner sentenced to death has a statutory right to conflict free counsel.

In the district court's First Memorandum Decision the court stated:

Every defendant has the right to be represented by conflict-free counsel. Wood v. Georgia, 450 U.S. 261, 272–73 [101 S.Ct. 1097, 1103–04, 67 L.Ed.2d 220, 230–31] [(1981)]. In order to ensure that a defendant receives conflict-free counsel, a trial court has an affirmative duty to inquire into a potential conflict whenever it "knows or reasonably should know that a particular conflict may exist." State v. Lovelace, 140 Idaho 53, 60, 90 P.3d 278, 285 (2003).

By citing the standards from Wood and Lovelace, the district court implicitly applied the Sixth Amendment's guarantee of conflict-free counsel to Hall's post-conviction proceeding. However, petitioners seeking post-conviction relief do not have a constitutional right to conflict free counsel. Recognizing this, on appeal, both the State and Hall argue that this Court should extend a statutory right to conflict-free counsel, premised on this Court's Six Amendment framework of analysis, for petitioners seeking post-conviction relief from a death sentence. We agree.

"In all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defence." U.S. Const. amend. VI. "The right to counsel guaranteed by the Sixth Amendment is a fundamental right." Cuyler v. Sullivan, 446 U.S. 335, 343, 100 S.Ct. 1708, 1715–16, 64 L.Ed.2d 333, 343 (1980). The Sixth Amendment has been incorporated through the Due Process Clause of the Fourteenth Amendment to apply to the states. See Powell v. Alabama, 287 U.S. 45, 73, 53 S.Ct. 55, 65–66, 77 L.Ed. 158, 172–73 (1932). Idaho law also guarantees a criminal defendant's right to counsel in all criminal prosecutions. Idaho Const. art. I, § 13 ; State v. Severson, 147 Idaho 694, 703, 215 P.3d 414, 423 n. 7 (2009).

The Sixth Amendment "has been interpreted to include the right to be represented by conflict-free counsel." Id. (citing Wood, 450 U.S. at 271, 101 S.Ct. at 1103, 67 L.Ed.2d at 230); see also Rethinking the Boundaries of the Sixth Amendment Right to Choice of Counsel, 124 Harv. L.Rev. 1550, 1552 (2011) ("The Sixth Amendment right to counsel has been interpreted as a right to conflict-free counsel."). "In order to ensure that a defendant receives conflict-free counsel, a trial court has an affirmative duty to inquire into a potential conflict whenever it knows or ‘reasonably should know that a particular conflict may exist.’ " Severson, 147 Idaho at 703, 215 P.3d at 423 (quoting State v. Lovelace, 140 Idaho 53, 60, 90 P.3d 278, 285 (2003) ).

However, "[t]he right to counsel in post-conviction proceedings is not a constitutional right." Lovelace, 140 Idaho at 71, 90 P.3d at 296; Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993–94, 95 L.Ed.2d 539, 545–46 (1987) ("We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions ......