Pizzuto v. State, 24802.

• Decision Date: 06 September 2000
• Docket Number: No. 24802.,24802.
• Citation: 134 Idaho 793,10 P.3d 742
• Parties: Gerald Ross PIZZUTO, Jr., Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Supreme Court

10 P.3d 742

134 Idaho 793

Gerald Ross PIZZUTO, Jr., Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 24802.

Supreme Court of Idaho, Moscow, April 2000 Term.

September 6, 2000.

Rehearing Denied October 16, 2000.

Joan M. Fisher, Moscow; Robert Gombiner, Tacoma, Washington, for appellant. Robert Gombiner argued.

Hon. Alan G. Lance, Attorney General; L. LaMont Anderson, Deputy Attorney General, Boise, for respondent. L. LaMont Anderson argued.

SILAK, Justice.

This is an appeal from the district court's summary dismissal of a third amended petition for post-conviction relief filed by appellant Gerald Ross Pizzuto, Jr. (Pizzuto). We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

A. Facts

Pizzuto was sentenced to death on May 23, 1986, after a jury found him guilty of two counts of first-degree murder. Prior to bringing an appeal to this court, Pizzuto filed his first petition for post-conviction relief, as required by section 19-2719 of the Idaho Code. In the first petition for post-conviction relief, Pizzuto raised fourteen issues, including the constitutionality of Idaho's death penalty statute, and whether the Honorable George Reinhardt, the district judge who presided over Pizzuto's trial, should have been disqualified for cause. Pizzuto argued that Judge Reinhardt should have been disqualified because of his exposure to extraneous information regarding the murders during the trials of Pizzuto's co-defendants James Rice (Rice) and William Odom (Odom). The first petition for post-conviction relief was denied, and Pizzuto's conviction and sentence were affirmed by this Court in State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991) (Pizzuto I).

Pizzuto filed a second petition for post-conviction relief in 1994. In the second petition, Pizzuto claimed he had been denied the effective assistance of counsel because, among other reasons, his trial counsel had failed to request an investigator to interview and investigate the witnesses until 2 days before trial, which

resulted in the failure of the defense to uncover significant evidence, including, but not limited to, information that one of the key witnesses to the trial, William Odom, had been a police informant in California; information regarding the circumstances of the armed robbery committed by James Rice, one of the other key witnesses in the case; [and] information about Rice and Odoms' [sic] criminal histories and work records....

Further, Pizzuto argued that trial counsel's failure to obtain transcripts of the sentencing hearings of Rice and Odom, both of which occurred prior to Pizzuto's sentencing, constitutes ineffective assistance of counsel because, but for the error, trial counsel would have developed and presented the concept of lingering doubt based largely on the testimony of Rice and Odom.

The Idaho Supreme Court affirmed the dismissal of the second petition in Pizzuto v. State, 127 Idaho 469, 903 P.2d 58 (1995) (Pizzuto II).

B. Procedural Background

On April 13, 1998, Pizzuto filed an amended third petition for post-conviction relief, alleging that the prosecution had wrongfully withheld material exculpatory evidence, entitling him to a new trial under the rule set forth by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Pizzuto also requested that Judge Reinhardt disqualify himself, alleging that Judge Reinhardt was prejudiced against him. Judge Reinhardt declined to disqualify himself, and summarily dismissed Pizzuto's petition for post-conviction relief on May 26, 1998. Judge Reinhardt ruled that dismissal for lack of jurisdiction was required by I.C. § 19-2719(5) because Pizzuto had failed to show that he could not have raised the issues in his earlier petitions for post-conviction relief. Pizzuto appealed.

II. ISSUES ON APPEAL

The appellant raises the following issues on appeal:

A. Whether the district court erred in summarily dismissing Pizzuto's third amended petition for post-conviction relief.

B. Whether Judge Reinhardt erred in not disqualifying himself for cause.

III. STANDARD OF REVIEW

Section 19-2719 of the Idaho Code states that a defendant is deemed to have waived any claims if he or she fails to apply for relief within the statutory time limits, and that "the courts of Idaho" shall have no power to consider any such claims for relief as have been so waived ...." I.C. § 19-2719(5). Whether a successive petition for post-conviction relief was properly dismissed pursuant to I.C. § 19-2719 is a question of law. This Court reviews questions of law de novo. See State, Dept. of Finance v. Resource Service, Co., 130 Idaho 877, 880, 950 P.2d 249, 252 (1997)

. The decision of a district judge not to disqualify himself is discretionary, and will not be overturned absent an abuse of discretion. See State v. Wood, 132 Idaho 88, 107, 967 P.2d 702, 721 (1998).

IV. ANALYSIS

A. The District Court Did Not Err In Summarily Dismissing Pizzuto's Third Amended Petition For Post-conviction Relief.

Pizzuto argues that the district court erred in summarily dismissing the petition for post-conviction relief because the prosecution withheld material exculpatory or impeaching evidence from Pizzuto's defense counsel. On appeal, Pizzuto argues that the confidence of his conviction is undermined by the alleged suppression of the following evidence:

1. Information that Rice was diagnosed with anti-social personality disorder, which obscured his ability "to stick with the historical truth," as well as" a life long pattern of attempting to tell people what he thinks they want to hear."

2. Information known to the prosecution that Rice was believed by his own attorneys to be incompetent and incapable of discerning "truth from reality" at the time he accused Pizzuto of the killings.

3. Information known to the prosecutor that Odom was an informant for the State of Idaho.

4. Information known to the state that Odom had worked for various law enforcement agencies, which was inconsistent with Odom's testimony at trial.

5. Information known by the state that Odom had threatened a witness at the time of his arrest.

6. Information that Odom fabricated incidents to his presentence investigator in 1980, including claiming to have been "stabbed and shot by Mexicans" as his reason for dropping out of school, and "fabricated other areas of his life" and had "an inability to deal with reality."

7. Information that Odom violated the conditions of a prior probation.

8. Information that Odom has tattoos reading "Grim Reaper" and "Desperado."

Pizzuto maintains that Rice and Odom's testimony against him could have been successfully impeached if the prosecution had not suppressed the above information.

The United States Supreme Court has held that a defendant's due process rights are violated when the prosecution withholds material exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218 (1963)

. The U.S. Supreme Court has also held that for Brady purposes, impeaching evidence should be treated in the same manner as exculpatory evidence. See Strickler v. Greene, 527 U.S. 263, 275, 119 S.Ct. 1936, 1945, 144 L.Ed.2d 286, 298 (1999); Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490, 505 (1995); United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985). The district court, however, did not address the issue of whether Pizzuto's rights were violated when the prosecution failed to disclose certain information. Instead, the district court ruled that the third petition must be dismissed pursuant to I.C. § 19-2719(5) because the violations of which Pizzuto complained could have been raised during the first petition for post-conviction relief and were therefore waived when Pizzuto failed to raise them.

a. Successive petitions for relief which present only impeaching issues are facially insufficient pursuant to I.C. § 19-2719(5)(b).

Section 19-2719 provides that the defendant must file any legal or factual challenge to the sentence or conviction that is "known or reasonably should be known" within forty-two days of the filing of the judgment imposing the death sentence. See I.C. § 19-2719(3). The statute further provides:

(5) If the defendant fails to apply for relief as provided in this section and within the time limits specified, he shall be deemed to have waived such claims for relief as were known, or reasonably should have been known. The courts of Idaho shall have no power to consider any such claims for relief as have been so waived or grant any such relief.

(a) An allegation that a successive post-conviction petition may be heard because of the applicability of the exception herein for issues that were not known or could not reasonably have been known shall not be considered unless the applicant shows the existence of such issues by (i) a precise statement of the issue or issues asserted together with (ii) material facts stated under oath or affirmation by credible persons with first hand knowledge that would support the issue or issues asserted. A pleading that fails to make a showing of excepted issues supported by material facts, or which is not credible, must be summarily dismissed.

(b) A successive post-conviction pleading asserting the exception shall be deemed facially insufficient to the extent it alleges matters that are cumulative or impeaching or would not, even if the allegations were true, cast doubt on the reliability of the conviction or sentence.

I.C. § 19-2719(5) (emphasis added). The elements of evidence which Pizzuto claims were wrongfully withheld are all of an impeaching nature. None of the "newly discovered" evidence tends to show that Pizzuto was not involved in the crime, but could have been used only to attack the reliability of the testimony given by Pizzuto's co-defendants. While the United States Supreme Court has held that impeaching evidence may be material...