Johnson v. State

• Decision Date: 18 February 2014
• Docket Number: No. 38769.,38769.
• Citation: 156 Idaho 7,319 P.3d 491
• Court: Idaho Supreme Court
• Parties: Sarah M. JOHNSON, Petitioner–Appellant, v. STATE of Idaho, Respondent.

156 Idaho 7

319 P.3d 491

Sarah M. JOHNSON, Petitioner–Appellant,

v.STATE of Idaho, Respondent.

No. 38769.

Supreme Court of Idaho, Boise, December 2013 Term.

Feb. 18, 2014.

Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Dennis Benjamin argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Jessica Lorello, Deputy Attorney General argued.

BURDICK, Chief Justice.

Sarah Johnson appealed from the district court's order dismissing her petition for post-conviction relief following convictions on two counts of first degree murder. We affirm the district court's order.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 2, 2003, Alan and Diane Johnson (the Johnsons) were shot and killed in their home. The Johnsons' sixteen-year-old daughter, Sarah Johnson (Johnson), was home at the time of the shooting. She consistently denied any involvement, but gave several different accounts of what she was doing, what she saw, and what she heard prior to and after the murders. Johnson variously stated that she was awoken by the first shot and fled immediately after, that she was awake and could hear arguing before any shots were fired, and that after hearing the first shot, she went to her parents' bedroom before fleeing at the sound of the second shot. After fleeing the house, she knocked on several neighbors' doors until one answered and the police were called. Johnson was ultimately charged with both murders and was represented by Robert Pangburn and Mark Rader.

Police found a leather glove from a pair usually kept in Diane Johnson's SUV, Johnson's keys including a key to the guesthouse, the magazine of a nine-millimeter handgun wrapped in a bandana, and two .264 caliber magnum shells in Johnson's bedroom. In a garbage can outside of the residence the police also found a latex glove, a leather glove matching the one found in Johnson's bedroom but for the opposite hand, and a pink robe covered in blood that belonged to Johnson and had .25 automatic pistol ammunition in the pocket. Testing revealed that Johnson's DNA was present inside of the latex glove and that paint chips found inside of the robe matched paint on the shirt Johnson was wearing the morning of the murders.

The murder weapon, a .264 rifle, belonged to Mel Speegle, who was renting the Johnsons' guesthouse, but was out of town at the time of the murders. Fingerprints located on the stock of the rifle, the scope from the rifle, and two boxes of .264 shells did not match Speegle's and were unidentified at the time of trial. There were no prints on the rifle, scope, or ammunition that matched Johnson's. Speegle testified at trial that he kept the rifle in his closet, which was unlocked, and that he was not aware how many people had touched the rifle, but that his wife and friend had helped him move into the guesthouse in 2002. Speegle also testified at trial that Johnson had access to the guesthouse, knew he would be gone the weekend before the murders, and knew that the rifle along with his other guns and ammunition were located in the closet. Johnson had a key to the guesthouse and had been in there several times including the days immediately preceding the murders.

After a lengthy trial, a jury found Johnson guilty of first-degree murder of both Alan and Diane Johnson. The district court sentenced Johnson to concurrent life sentences, plus fifteen years under I.C. § 19–2520 for a firearm enhancement.

Johnson's first appeal of her conviction was dismissed because her attorneys failed to file a timely notice of appeal. Thereafter, Johnson filed a petition for post-conviction relief raising claims of ineffective assistance of counsel and denial of due process. The district court found ineffective assistance of counsel in the failure to file a timely notice of appeal and re-entered the judgment of conviction allowing time for the direct appeal to begin anew. Johnson immediately filed a timely notice of appeal, and the district court stayed proceedings on the remaining post-conviction claims. Johnson then filed a Second Amended Petition for Post–Conviction Relief, which raised numerous claims, including allegations that (1) her trial counsel was ineffective for failing to elicit testimony from Robert Kerchusky, the defense's fingerprint expert; (2) the unidentified prints on the murder weapon, its scope, and an insert from the box of ammunition were fresh; and (3) newly discovered evidence warranted a new trial. The newly discovered evidence claim was based on the discovery that Christopher Hill's fingerprints matched the previously unidentified prints on the murder weapon, its scope, and the ammunition.

Hill was Speegle's friend and the former caretaker of Speegle's ranch. Speegle and Hill both testified at the post-conviction evidentiary hearing. Hill testified that he had helped Speegle move from his ranch into the guesthouse in 2002. In explaining why his prints would be on Speegle's rifle, other than having possibly left them when he helped Speegle move, Hill testified that he "took [the rifle] out, tried to sight it," and shot it "six or seven times" using Speegle's ammunition in the spring of 2000 when he was caretaking at Speegle's ranch.

The State filed a motion for summary dismissal, which was granted in part, and denied in part. The court held an evidentiary hearing on six claims including Johnson's claims regarding counsel's alleged failure to inquire about the age or "freshness" of the unidentified prints and the newly discovered evidence claim. After the evidentiary hearing and submission of post-trial briefing, the district court denied relief on the remainder of Johnson's claims. Johnson filed a timely notice of appeal.

II. ANALYSIS

Johnson contends that the district erred in denying her post-conviction claims for both ineffective assistance of counsel and newly discovered evidence. A petition for post-conviction relief is a civil proceeding. State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008). As the petitioner, Johnson has the burden of proving by a preponderance of the evidence that her assertions are correct. Id. Where there is competent and substantial evidence to support a decision made after an evidentiary hearing in a post-conviction proceeding, that decision will not be disturbed on appeal. Estrada v. State, 143 Idaho 558, 561, 149 P.3d 833, 836 (2006). This Court, however, exercises free review of the district court's application of the law. Id.

A. Johnson received effective assistance of counsel.

Johnson contends that she was denied effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article 1, Section 13 of the Idaho Constitution. We analyze both Johnson's state and federal constitutional claims in terms of whether the conduct of Johnson's counsel fell below an "objective standard of reasonableness," as that test is defined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Shackelford, 150 Idaho 355, 382, 247 P.3d 582, 609 (2010). To prevail on an ineffective assistance of counsel claim, Johnson has the burden of establishing that her attorney's performance was deficient and that she was prejudiced by the deficiency. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. In assessing the reasonableness of attorney performance, this Court has cautioned that "judicial scrutiny must be highly deferential and every effort must ‘be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.’ " State v. Mathews, 133 Idaho 300, 306, 986 P.2d 323, 329 (1999) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694). Furthermore, tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on "inadequate preparation, ignorance of the relevant law, or other shortcomings capable of objective review." Shackelford, 150 Idaho at 382–83, 247 P.3d at 609–10. Even where the defendant carries her burden of establishing deficient performance, she must also show a reasonable probability that but for counsel's performance, the result of the trial would have been different. State v. Fields, 127 Idaho 904, 912, 908 P.2d 1211, 1219 (1995).

On appeal, Johnson argues that the failure of her trial attorney, Robert Pangburn, to elicit testimony from the defense's fingerprint expert, Robert Kerchusky, regarding the freshness of the fingerprints on the rifle, the scope, and the ammunition was not a strategic decision, but rather was due to lack of preparation. She contends that the answers to these unasked questions would have significantly furthered her defense strategy, and therefore, the omission is capable of objective review.

Johnson does not present convincing evidence that Pangburn was ineffective or that she might not have been convicted but for his mistakes. First, she provides no evidence to contradict the district court's factual finding that "Pangburn was prepared regarding the defense fingerprint theory and he exercised his judgment and skill in presenting those issues to the jury." Second, her argument that Pangburn's omission served no tactical or strategic purpose is misplaced. She argues that because further questioning of Kerchusky would have aided her case, the omission of such questioning could not be strategic. While Pangburn did not specifically ask Kerchusky if the fingerprints were "fresh," he did elicit testimony that prints do not last on a...