McKinney v. State

• Decision Date: 19 December 2006
• Docket Number: No. 29411.,29411.
• Parties: Randy Lynn McKINNEY, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Supreme Court

Page 283

150 P.3d 283

143 Idaho 590

Randy Lynn McKINNEY, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 29411.

Supreme Court of Idaho, Boise, December 2006 Term.

December 19, 2006.

Federal Defenders of Eastern Washington and Idaho, Moscow, for appellant. Joan M. Fisher argued.

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

EISMANN, Justice.

This is an appeal from a successive petition for post-conviction relief alleging prosecutorial misconduct during the defendant's trial. The district court denied relief, and we affirm.

I. FACTS AND PROCEDURAL HISTORY

Randy McKinney was convicted of murder in the first degree, conspiracy to commit murder, robbery, and conspiracy to commit robbery, and he was sentenced to death. This Court affirmed his convictions and sentence in State v. McKinney, 107 Idaho 180, 687 P.2d 570 (1984). He subsequently filed two petitions for post-conviction relief, both of which the district court denied. We affirmed the district court in both cases. McKinney v. State, 115 Idaho 1125, 772 P.2d 1219 (1989); McKinney v. State, 133 Idaho 695, 992 P.2d 144 (1999). On June 30, 2001, McKinney filed a third petition for post-conviction relief. The denial of that petition is the subject of this appeal.

It is not necessary to recount the overwhelming evidence of McKinney's guilt presented at the trial. In McKinney's appeal from his conviction and sentence, this Court summarized what occurred, "In no other case have we seen such a cold-blooded, callous and wanton plan to murder a relative stranger for the sole motive of monetary gain, coupled with the method of killing, i.e., enticement of the victim to a remote area, shots to the body, and then a deliberate and calculated placing of, execution fashion, shots to the back of the victim's head." State v. McKinney, 107 Idaho 180, 186, 687 P.2d 570, 576 (1984).

McKinney's third petition for post-conviction relief is based upon the allegation that one of the prosecuting attorneys tampered with McKinney's revolver by increasing its double-action trigger pull in order to cast doubt upon McKinney's claim that he accidentally shot his victim. At his trial, McKinney testified as follows: He rode with the victim out into the country to do some target practice with McKinney's .22-caliber, double-action revolver. As McKinney stood five or ten feet from the car, the victim walked to two fence posts and placed a soda bottle on each of them to be used as targets. A Pomeranian dog belonging to McKinney's female companion was also there. It began tugging at McKinney's pant leg in a playful manner as the victim was walking back toward the car. McKinney was holding the revolver straight out from his shoulder in the direction of the bottles, and as he looked down at the dog he accidentally pulled the trigger, hitting the victim in the torso. The victim fell to the ground, and McKinney immediately put the dog back into the car, got in the driver's seat, and drove back to the bar where McKinney's companion and her sister were waiting. After the two women were in the car, the sister asked where the victim was, and McKinney said he had accidentally shot him. The two women expressed disbelief, so he drove them back to the scene, where the victim was still lying on the ground. McKinney got out of the car, leaving the revolver wedged between the console and the driver's seat. McKinney's companion was riding on the console, and she also got out, taking the revolver with her. The female companion walked over to the victim and shot him multiple times in the head. McKinney had no idea she was going to do that, and he ran over and grabbed the revolver away from her.

McKinney testified that he accidentally fired the revolver in double-action mode. When asked at trial to demonstrate how he could have accidentally shot the victim in the manner he claimed, McKinney refused to do so.

The shot that McKinney admitted firing hit the victim in the chest, but it was not a fatal wound. It may have incapacitated him because it lodged in the tenth thoracic vertebrae. Although it did not damage the spinal cord, it may have sent shock waves through the spinal cord when it hit the vertebrae. The effect of these shock waves on the spinal cord may have incapacitated the victim. As the victim was lying on the ground, he was shot four times in the back of the head. These four bullets all did massive destruction to his brain and brain stem, killing him.

After McKinney testified, the State called a firearms expert who testified that the double-action trigger pull of McKinney's revolver was twenty-one pounds. The trigger pull is an expression in pounds of how much force must be applied to the trigger in order for it to cock the hammer, rotate the cylinder, and fire the shot. McKinney's revolver was an inexpensive, cheaply made handgun of the type often called a "Saturday night special." Unfortunately, the current location of the revolver is unknown.

During federal habeas corpus proceedings, McKinney obtained a hand-printed note from the files of the prosecuting attorneys. That note stated as follows:

Prepare:

-Trigger Pull Examination

-Handwriting

-Dr. Garrison

-Tighten gun cylinder

-Ask Darrel for transcript of McKinney Testimony

McKinney then deposed both prosecuting attorneys who participated in his trial. One of them stated that the note was in his handwriting and that he made it during the trial after McKinney had testified. The prosecutor testified that he had no expertise in guns, that he would not know how to tighten a gun's cylinder,¹ that he had no idea why he wrote "Tighten gun cylinder" or what it meant, and that to his knowledge the cylinder of McKinney's gun had not been tightened. The other prosecuting attorney knew nothing of the note, never discussed having the gun cylinder tightened, and was sure they would not have altered the revolver. McKinney contends that the note shows that the prosecuting attorney altered the revolver by tightening its cylinder, thereby increasing its trigger pull.

The State sought summary dismissal of McKinney's third petition on the grounds that McKinney failed to show that this claimed prosecutorial misconduct could not have reasonably been known when he filed his first two petitions for post-conviction relief and that the issues raised were not material, but merely impeachment. McKinney moved for summary judgment, asking the district court to find that there was prosecutorial misconduct that warranted a new trial or a new sentencing hearing. After hearing argument on the motions, the district court held that the memo was merely impeachment evidence and that evidence of the alleged prosecutorial misconduct, assuming it had occurred, would not have altered the outcome of the trial. McKinney then appealed.

II. ISSUES

1. Did the district court err in dismissing McKinney's petition for post-conviction relief?

2. Should this Court overrule Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004)?

III. ANALYSIS

A. Did the District Court Err in Dismissing McKinney's Petition for Post-Conviction Relief?

The district court dismissed McKinney's third petition for post-conviction relief on the ground that the prosecutor's handwritten memo was not material, was impeachment evidence, and would not result in a different outcome at trial. For three reasons, we affirm the judgment of the district court.

First, there is no evidence of prosecutorial misconduct. The State had the firearms expert examine McKinney's revolver about six months prior to trial in order to determine whether bullet fragments found in the victim's body were fired from McKinney's revolver. In connection with that examination, the expert worked the action twenty to thirty times and noticed that the double-action trigger pull was excessive. After McKinney had testified, the expert again examined the revolver using a trigger-pull gauge to measure the weight of its trigger pull. That is when he determined that the double-action trigger pull was twenty-one pounds. When asked whether the revolver had been tampered with or altered in any way since his first examination of it about six months earlier, he responded, "There are no indications of tampering whatsoever. The trigger, to the best of my recollection, appeared to be the same in its action." Thus even if the note indicated an intent by the prosecuting attorney to alter the revolver, there is absolutely no evidence that the prosecuting attorney acted upon that intent or that the trigger pull was altered. In fact, the uncontradicted evidence is to the contrary.

McKinney accuses the expert of lying to cover up the alteration of the revolver, but he offers absolutely no evidence to support that accusation. He simply speculates that the prosecuting attorney and the expert conspired to provide false testimony. A mere accusation supported solely by speculation is not a sufficient basis for granting post-conviction relief.

Second, McKinney's petition raising this issue is untimely. In a capital case, the petitioner filing a successive petition for post-conviction relief must make a prima facie showing that the issues raised were not known and could not reasonably have been known within forty-two days after entry of the judgment imposing the death sentence. McKinney v. State, 133 Idaho 695, 992 P.2d 144 (1999). "Even when the required prima facie showing is made, the issues must still be asserted `within a reasonable time' after they are known or reasonably could have been known." Id. at 701, 992 P.2d at 150.

If we assume, even in the absence of any evidence supporting the assumption, that the trigger pull of the revolver had been altered to make it heavier, McKinney would have known of that at his trial in November 1981. He admittedly fired the first shot that hit the victim, claiming he did it accidentally. If the revolver's double-action trigger pull was so...