Murphy v. State
Decision Date | 26 July 2012 |
Docket Number | 2012 Unpublished Opinion No. 565,Docket No. 37254 |
Parties | ALISHA ANN MURPHY, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
Falls County. Hon. John K. Butler, District Judge.
Judgment summarily dismissing petition for post-conviction relief, affirmed in
part, reversed in part, and case remanded.
Sara B. Thomas, State Appellate Public Defender; Erik R. Lehtinen, Chief,
Appellate Unit, Boise, for appellant. Erik R. Lehtinen argued.
General, Boise, for respondent. Lori A. Fleming argued.
Alisha Ann Murphy appeals from the district court's order summarily dismissing her successive petition for post-conviction relief. She contends that the district court erred by denying her motion for appointed counsel and, alternatively, that the court erred in its determinations that her claims of ineffective assistance of trial counsel failed to establish deficient performance or prejudice.
This is Murphy's fourth appeal to this Court. The factual and procedural history is set forth in the second of those appeals,1 Murphy v. State, 143 Idaho 139, 139 P.3d 741 (2006), as follows:
Id. at 143-44, 139 P.3d at 745-46 (footnote omitted).
This Court affirmed in part, reversed in part, and remanded the post-conviction case to the district court for further proceedings. Id. at 151, 139 P.3d at 753. Of relevance to the present appeal, in Murphy's first post-conviction appeal we affirmed the summary dismissal of Murphy's claim of ineffective assistance of counsel regarding counsel's failure to call Norma Jo Robinson, Murphy's mother, to testify at trial about a telephone message allegedly left by James on Robinson's answering machine on the night that he was killed, but we reversed the summarydismissal of her claim that defense counsel was ineffective for failing to hire a forensic pathologist to aid the defense. We remanded the case with instructions for the district court to authorize funding for a forensic pathologist to review Murphy's claim. Id. at 145-51, 139 P.3d at 747-53. Also of relevance to this appeal, because notice of grounds for dismissal had not been given to Murphy by the district court, we reversed the dismissal of several other claims, including claim number "12" alleging that her trial counsel was ineffective for failing to obtain telephone records that allegedly would show a call from James's cell phone or the Murphy home's landline telephone to Robinson's telephone after the time that Murphy and her children had left the house, which would support an alibi defense. Id. at 150-51, 139 P.3d at 752-53.
On remand, after authorizing Murphy to hire an independent forensic pathologist at public expense, the district court ultimately granted Murphy an evidentiary hearing to address her remaining claims of ineffective assistance of counsel for defense counsel's failure to (1) retain a forensic pathologist; (2) retain a gunshot residue expert; (3) retain a blood spatter expert; (4) investigate telephone records; and (5) identify an alleged "potential juror" who purportedly discussed the case with another potential juror in the hallway during juror selection. At the evidentiary hearing, counsel for Murphy, without explaining why, waived all claims except the claim relating to her trial counsel's failure to retain a forensic pathologist.2 No evidence was presented to the district court in the form of testimony. Rather, both parties stipulated that the court could consider the reports of Dr. Patterson and Murphy's forensic pathologist, Dr. Todd Cameron Grey, as well as the grand jury and trial testimony from the underlying criminal case. Dr. Grey's initial report challenged Dr. Patterson's credentials and methodology, and the degree of certainty with which Dr. Patterson had expressed his opinion that James Murphy was the victim of a homicide. Dr. Grey's first report took issue with Dr. Patterson's opinion testimony that James did not shoot himself because a lab report stated that gunshot residue was found on the palms of both of James's hands but not on the back of either hand. Citing this testimony, in his first report Dr. Grey stated:
Dr. Patterson's claim that the GSR results prove this was a homicide is nonsense. Even if one accepts the validity of the sampling and testing, the results only indicate the decedent's hands were exposed to gun smoke. Any number of interpretations of the meaning of that finding can be legitimately offered.
Dr. Patterson produced a rebuttal report addressing Dr. Grey's concerns and maintaining his opinion that James Murphy had not committed suicide. Dr. Patterson's rebuttal report stated:
In this case, the GSR was found only on the right and left palms of the decedent. This is not a pattern typically seen in suicides caused by self-inflicted gunshot wounds to the head. In suicides, GSR is typically found on the back of the hand holding the...
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