Marsalis v. State
| Decision Date | 30 May 2019 |
| Docket Number | Docket No. 45583 |
| Parties | JEFFREY MARSALIS, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Karel A. Lehrman, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine County. Hon. Jonathan Brody, District Judge.
Judgment dismissing petition for post-conviction relief, affirmed in part, reversed in part, and case remanded.
Greg S. Silvey, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
____________________
Jeffrey Marsalis appeals the district court's summary dismissal of his petition for post-conviction relief. He asserts the district court erred in denying his claim of ineffective assistance of counsel for failing to seek exclusion of the State's expert witness, for failing to present a defense expert witness, for failing to advise him regarding his speedy trial right, and for failing to present a favorable fact witness. As discussed below, we affirm in part, reverse in part, and remand.
Marsalis was a security guard at K.G.'s place of employment in Sun Valley. K.G. went with Marsalis to a bar in Ketchum. After drinking a couple of beers, Marsalis ordered a shot of liquor for each of them and refused to tell K.G. what was in it. She testified that the drink had a slightly bitter or salty taste and that there was a grainy substance left in the bottom of the glass. The two continued drinking, and sometime after K.G had a few beers, her recollection began to fade. The bartender testified that Marsalis ordered (on a bar tab) twenty beers and four shots for K.G. and himself and that K.G. also ordered and paid for beers for herself.
Following several hours of drinking, Marsalis and K.G. took a cab back to Marsalis' condominium. The cab driver testified K.G. appeared to be very intoxicated; during the ride, she curled up with her eyes closed; and Marsalis had a difficult time rousing her and getting her out of the cab once they reached Marsalis' condominium. Another individual likewise testified K.G. exhibited signs of being very intoxicated. However, a third individual, John, rode in the same cab as Marsalis and K.G. but did not notice K.G.'s intoxication. John told an investigator that he was familiar with Marsalis from previously meeting him at a local coffee shop; he had been at the same bar as Marsalis and K.G.; he rode with them in the same cab after leaving the bar; he sat in front of them in the cab and was not paying attention to them; and he did not notice any arguments or struggles between them. John did not testify at trial.
K.G. testified she had no recollection of how she left the bar or came to find herself at Marsalis' condominium, where she woke up the next morning. Upon waking, she did not know where she was and saw Marsalis in bed next to her. She was sick and vomited several times that morning, felt pain when urinating, and felt like her vagina was "bruised." She also noticed she was wearing her clothes in a different order than she remembered wearing them. After feeling sick all day, K.G. reported that night to Ketchum police officers she thought Marsalis had raped her. She then went to a hospital where a rape kit was administered. A DNA analysis showed the presence of Marsalis' semen in K.G.'s vagina.
Eventually, Marsalis was indicted and arrested for raping K.G. In the interim, Marsalis was also charged with separate, unrelated offenses in Pennsylvania. As a result, Marsalis was imprisoned in Pennsylvania. For purposes of transferring Marsalis from Pennsylvania to Idaho for a trial on the rape charge, the Idaho prosecutor filed a request for temporary custody of Marsalis in Idaho under the Interstate Agreement on Detainers (IAD), Idaho Code § 19-5001, et. seq. Marsalis arrived in Idaho in August 2008, and per counsels' stipulation for a continuance, the case proceeded in April 2009 to a jury trial.
At trial, the prosecution presented an expert witness, Marc LeBeau, a unit chief for the Federal Bureau of Investigation in Quantico, Virginia. The State offered Dr. LeBeau as anexpert in forensic toxicology and pharmacology of drugs used in drug-facilitated sexual assaults. Dr. LeBeau testified about several topics including, as it relates to this appeal: (1) the Widmark formula used to estimate an individual's blood alcohol concentration (BAC) based on certain variables; and (2) the Dubowski chart, which identifies categories of intoxication based on BAC ranges and the signs and symptoms associated with each category.
Using a method called retrograde extrapolation, Dr. LeBeau opined about the level of intoxication of both Marsalis and K.G. after their night of drinking. Dr. LeBeau made various assumptions based on K.G.'s physical attributes, what she ate before drinking, the number of drinks the bartender testified K.G. had, and the witness's testimony about K.G.'s intoxication symptoms. Relying on these assumptions, Dr. LeBeau opined K.G.'s BAC peaked between 1:30 a.m. and 2:30 a.m. to reach a BAC of .28. Further, Dr. LeBeau testified that a BAC of .28 categorized K.G. on the Dubowski chart as in a "stupor," meaning she was semiconscious or in and out of consciousness. Making similar assumptions about Marsalis, Dr. LeBeau opined his BAC peaked between 1:30 a.m. and 3:30 a.m. at .16, which categorized him on the Dubowski chart as in a state of "excitement."
Although Marsalis' counsel cross-examined Dr. LeBeau, Marsalis' counsel neither objected to Dr. LeBeau's qualifications as an expert nor challenged his methodology. Further, Marsalis' counsel did not present an opposing expert witness on Marsalis' behalf. The jury found Marsalis guilty of rape, and he received a unified life sentence with fifteen years determinate.
Marsalis filed a direct appeal of his conviction, and this Court affirmed. See State v. Marsalis, 151 Idaho 872, 264 P.3d 979 (Ct. App. 2011). Thereafter, Marsalis filed a petition for post-conviction relief and ultimately, after a long procedural delay, a second amended petition for post-conviction relief (petition). In support of this petition, Marsalis submitted (among other things) a transcript of an investigator's interview of John; an affidavit of Dr. Timothy Anstine, a chemist; and an affidavit of Dr. Kim Fromme, a clinical psychologist. After oral argument, the district court entered a written order summarily dismissing Marsalis' claims for post-conviction relief. Marsalis timely appeals.
Idaho Code Section 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to a motion by a party or upon the court's own initiative, if it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App. 1986).
Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner's allegations do not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in the petitioner's favor.
Conversely, if the petition, affidavits, and other evidence supporting the petition allege facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. Goodwin v. State, 138 Idaho 269, 272, 61 P.3d 626, 629 (Ct. App. 2002).
On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner's admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise freereview. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).
Marsalis challenges the district court's summary dismissal of his claim that his counsel was ineffective for failing to challenge the admissibility of Dr. LeBeau's testimony under Idaho Rule of Evidence 702. On appeal, Marsalis argues that, although the district court acknowledged his Rule 702 argument, the district court neither addressed his argument nor the supporting expert affidavits of Drs. Anstine and Fromme. We agree the district court failed to address these affidavits, which raise genuine issues of material fact whether Dr. LeBeau's scientific methodology would have survived a motion in limine under Rule 702. See, e.g., Lint v. Stat...
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