Milburn v. State

• Citation: 23 P.3d 775,135 Idaho 701
• Decision Date: 27 September 2000
• Docket Number: No. 24923.,24923.
• Parties: Darin Jay MILBURN, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Court of Appeals of Idaho

23 P.3d 775

135 Idaho 701

Darin Jay MILBURN, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 24923.

Court of Appeals of Idaho.

September 27, 2000.

Rehearing Denied April 12, 2001.

Petition for Review Denied May 29, 2001.

Kirk J. Anderson, Boise, for appellant.

Alan G. Lance, Attorney General; Kenneth M. Robins, Deputy Attorney General, Boise, for respondent. Kenneth M. Robins argued.

LANSING, J.

This is an appeal from the district court's judgment denying Darin Milburn's application for post-conviction relief. Milburn's action was based upon alleged ineffective assistance of counsel in a criminal action that resulted in Milburn's conviction for second degree murder. Following an evidentiary hearing, the district court found that Milburn had not proven that the legal service provided by his defense attorneys fell below an objective standard of reasonableness, and on that basis the district court rendered judgment against Milburn. For reasons discussed below, we affirm.

FACTS AND PROCEDURAL HISTORY

Milburn was convicted of second degree murder in 1993 following a jury trial. The background of the case was outlined by this Court in an earlier appeal in this post-conviction action, Milburn v. State, 130 Idaho 649, 946 P.2d 71 (Ct.App.1997) (Milburn I):

The investigation that ultimately led to Milburn's conviction began on April 11, 1992, when a body was discovered in a recently burned irrigation ditch near the town of Middleton. The body, which was later identified as that of twenty-two-year old Carey Lynn Shaddy, was charred and had three gunshot wounds. Police estimated that the murder occurred sometime prior to April 2, 1992. This determination was based in part on evidence suggesting that the body was in the irrigation ditch when the ditch was burned. The farmer who had burned the weeds in the ditch said the fire was set on April 2, which was confirmed by rental records showing that on that date the farmer had returned rented equipment used to clear the ditch. The date of death was also substantiated by the report of an entomologist who rendered an opinion, based on the growth of fly larvae found on the corpse, that the death had occurred on or before April 2.

The Canyon County Sheriff's Department conducted an extensive investigation involving more than one hundred interviews. Ultimately, Darin Milburn was arrested for the killing and was charged with first degree murder, I.C. §§ 18-4001, 4003(a).

....

In January 1993, a jury trial was conducted. The prosecutor's case against Milburn was built on three components: (1) evidence that Milburn was the last person to be seen with Shaddy prior to the asserted date of Shaddy's death; (2) ballistics tests that identified Milburn's .44 caliber hand gun as the murder weapon; and (3) testimony that Milburn had told an acquaintance, Christopher Pickering, that he had killed someone in Middleton. Milburn's attorneys did not present any evidence following the State's case-in-chief, but tendered a defense through cross-examination of the State's witnesses.

....

To show that Milburn was the last person to see Carey Shaddy alive, the prosecution offered the testimony of a bartender who worked at the Chaparral Bar in Middleton. She testified that Milburn and Shaddy left the bar together at about 11:30 p.m. on March 31, 1992, after Milburn had offered to give Shaddy a ride home. The bartender also testified that she watched the two men get into Milburn's vehicle before she finally looked away. It was the State's theory that Milburn killed Shaddy shortly after leaving the bar.

Milburn, however, always maintained that he refused to give Shaddy a ride that night. The jury heard Milburn's account through an officer who testified about Milburn's statements to the police. Milburn contended that once the two men left the bar, Shaddy told Milburn that he wanted a ride to Caldwell, a town several miles away. Milburn said that he was not willing to drive Shaddy that far because he was afraid of getting stopped for driving under the influence of alcohol. Milburn told police that he left Shaddy in the parking lot, and that the last time Milburn saw him, Shaddy was walking down the street away from the bar.

Id. at 653, 946 P.2d at 75. The jury returned a verdict finding Milburn guilty of second degree murder, Idaho Code §§ 18-4001, — 4003(g).

After receiving this verdict, Milburn obtained a different attorney. Through his new counsel, Milburn presented a motion for a new trial in the criminal case premised on a contention that his trial attorneys had provided ineffective assistance of counsel. After conducting an evidentiary hearing at which Milburn's two trial attorneys testified, the district court denied the motion for a new trial, concluding that Milburn had not shown ineffective assistance of counsel. Milburn thereafter filed an application for post-conviction relief, again alleging that his attorneys in the criminal case provided ineffective assistance by failing to conduct an adequate investigation and failing to make use of available exculpatory evidence.¹ The State moved for summary dismissal of the post-conviction application pursuant to I.C. § 19-4906(c). In response to that motion, Milburn relied upon the transcript of the evidentiary hearing that had been conducted on the motion for a new trial. The district court granted the State's motion and summarily dismissed the post-conviction action. The appeal from that summary dismissal gave rise to Milburn I, in which we held that Milburn's evidence was sufficient to raise genuine factual issues regarding the adequacy of his defense attorneys' performance which precluded summary dismissal. We therefore reversed the order of summary dismissal with respect to the ineffective assistance claims and remanded the case to the district court for an evidentiary hearing.

A three-day evidentiary hearing was conducted on remand in which testimony was taken from ten witnesses, including Milburn's two trial attorneys and David Johnson, an investigator who worked for the trial attorneys in preparing Milburn's defense. Evidence presented at the hearing also included transcripts of numerous witness interviews conducted by law enforcement officials during the investigation of Shaddy's murder and investigator Johnson's notes from his witness interviews. At the conclusion of the hearing, the district court again denied Milburn's claims, holding that Milburn's defense attorneys were not deficient in their performance.

Milburn again appeals, contending that the district court erred in refusing to exclude witnesses for the State who were not timely disclosed in compliance with a pretrial order and that the district court erred in its finding that Milburn's attorneys provided effective assistance of counsel in the criminal case. Specifically, Milburn argues that he met his burden to prove that his attorneys were deficient because they did not present available exculpatory evidence and did not adequately impeach a prosecution witness with his prior inconsistent statements.

ANALYSIS

A. Late Disclosure of the State's Witnesses

Following remand from Milburn I, the district court conducted a pretrial conference. At that conference, the court set the matter for evidentiary hearing and ordered the parties to disclose their witnesses and exhibits by a specified date. Milburn served a timely disclosure statement, but the State did not. Milburn therefore filed a motion to exclude the State's evidence for noncompliance with the court's order. The State ultimately served its disclosure statement nine days before the evidentiary hearing and produced an affidavit of another witness the day before the hearing. The district court excluded the affidavit presented by the State the day before trial as a sanction for the State's tardiness, but denied Milburn's motion to exclude the remainder of the State's witnesses and evidence. The court concluded that Milburn had not shown that he was unaware of the prospective testimony of the State's witnesses or was prejudiced by the late disclosure. On appeal, Milburn asserts that the district court erred in not sanctioning the State by precluding the State from presenting witnesses at the evidentiary hearing.

Proceedings brought under the Uniform Post-Conviction Act, I.C. § 19-4901, et seq., are civil actions and are governed, for the most part, by the Idaho Rules of Civil Procedure. I.C.R. 57(b); Pizzuto v. State, 127 Idaho 469, 470, 903 P.2d 58, 59 (1995); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969). Therefore, in examining Milburn's claim of error we look to I.R.C.P. 16(i), which provides that if a party disobeys a scheduling order or pretrial order, the court "may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D)." The referenced subsections of Rule 37(b) authorize the court to impose sanctions for discovery violations. The permissible sanctions include refusing to allow the disobedient party to support or oppose particular claims and prohibiting the party from introducing designated evidence. I.R.C.P. 37(b)(2)(B). The grant or denial of sanctions for discovery violations is committed to the discretion of the trial court and will be disturbed on appeal only for a manifest abuse of that discretion. Southern Idaho Production Credit Ass'n v. Astorquia, 113 Idaho 526, 528, 746 P.2d 985, 987 (1987); Fish Haven Resort, Inc. v. Arnold, 121 Idaho 118, 121, 822 P.2d 1015, 1018 (Ct.App.1991).

The sanction sought by Milburn, the exclusion of all of the State's evidence, would have been nearly equivalent to an order for judgment against the State. In Roe v. Doe, 129 Idaho 663, 931 P.2d 657 (Ct.App.1996), we considered a similar sanction, an order excluding one party's witnesses due to untimely responses to interrogatories. We there stated:

[S]ome balancing of the equities and some consideration of the efficacy of lesser

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