State v. Dunlap, s. 32773

CourtUnited States State Supreme Court of Idaho
Citation313 P.3d 1
Docket NumberNos. 32773,37270.,s. 32773
PartiesSTATE of Idaho, Plaintiff–Respondent, v. Timothy Alan DUNLAP, Defendant–Appellant. Timothy Alan Dunlap, Petitioner–Appellant, v. State of Idaho, Respondent.
Decision Date29 November 2013

313 P.3d 1

STATE of Idaho, Plaintiff–Respondent,
Timothy Alan DUNLAP, Defendant–Appellant.

Timothy Alan Dunlap, Petitioner–Appellant,
State of Idaho, Respondent.

Nos. 32773, 37270.

Supreme Court of Idaho,
Boise, November 2012 Term.

Aug. 27, 2013.
Rehearing Denied Nov. 29, 2013.

[313 P.3d 13]

Sara B. Thomas, State Appellate Public Defender, Boise, for appellant.
Shannon Romero argued.

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

HORTON, Justice.

This matter is a consolidated appeal from the sentence of death imposed upon Timothy A. Dunlap after he pled guilty to first-degree murder and from the district court's summary denial of his petition for post-conviction relief. Dunlap alleges numerous errors by the district court during the jury sentencing proceedings, and he advances several claims of ineffective assistance of counsel. Additionally, the parties ask this Court to determine whether the mandatory review of death sentences governed by Idaho Code § 19–2827 requires the Court to consider errors that were not preserved by objection at trial or whether a defendant must demonstrate fundamental error before those errors may be considered. Dunlap asks this Court to set aside his sentence and remand for resentencing or, in the alternative, to vacate the order summarily dismissing his petition for post-conviction relief and remand for an evidentiary hearing. We affirm the judgment imposing the death sentence. We affirm the district court's summary dismissal of Dunlap's petition for post-conviction relief in part, vacate in part, and remand for further post-conviction relief proceedings.


This appeal deals solely with issues related to Dunlap's sentencing. We set forth the factual and procedural background leading to the jury-imposed sentence in a previous appeal:

On October 16, 1991, Dunlap entered and robbed the Security State Bank in Soda Springs, Idaho. Dunlap entered the bank, stood within a few feet of bank teller Tonya Crane, and ordered her to give him all of her money. Without hesitation, Tonya Crane did so. Dunlap immediately and calmly pulled the trigger of his sawed-off shotgun, which was less than two feet from Tonya Crane's chest, literally blowing her out of her shoes. Police officers responded immediately. When the officers arrived at the bank, Tonya Crane had no pulse. When taken to the hospital she was pronounced dead on arrival.

Dunlap fled the scene, but subsequently surrendered to police. After being given his Miranda rights, Dunlap confessed to the murder and to a murder that occurred ten days before in Ohio. The following day, Dunlap again confessed and explained how he planned and completed both murders. Dunlap was charged with first-degree murder and robbery.

Within days of his arrest, Dunlap arranged to be interviewed by Marilyn Young, Associate Editor of the Albany New Tribune in Indiana. During the interviews Dunlap explained to Young how he murdered his girlfriend in Ohio with a crossbow and then traveled west where he subsequently planned to rob the Soda Springs' bank. Dunlap described the bank robbery and Tonya Crane's murder to the editor.

In Idaho on December 30, 1991, Dunlap pled guilty to first-degree murder for shooting Tonya Crane during the course of a robbery. “In the agreement, the State dropped the robbery and use of a firearm in the commission of a robbery charges, and Dunlap pled guilty to first degree murder and use of a firearm in the commission of a murder.” State v. Dunlap, 125 Idaho 530, 531, 873 P.2d 784, 785 (1993)( Dunlap I ). The plea agreement allowed the State to seek the death penalty. Id.


During the plea colloquy the court questioned Dunlap and his attorneys about Dunlap's mental history and whether it

[313 P.3d 14]

would have any impact on his ability to plead guilty. [The district court then reviewed medical records Dunlap provided related to his mental health.] ... The district court judge continued with the hearing, but informed the parties he would make his decision about accepting the plea after he had a chance to review the documents. After reviewing the records, the court accepted Dunlap's plea.


After the aggravation-mitigation hearing the district court imposed the death penalty. Dunlap appealed his conviction and sentence, but this Court affirmed both. Id.

On May 12, 1994, Dunlap filed a petition for post-conviction relief. The district court dismissed the petition because it was not filed within forty-two days of entry of judgment. This Court reversed the district court's decision and remanded Dunlap's case for further proceedings. Dunlap v. State, 131 Idaho 576, 961 P.2d 1179 (1998)( Dunlap II ).

Prior to the commencement of the evidentiary hearing, the State conceded that error occurred during Dunlap's sentencing proceeding and he would have to be resentenced. On January 11, 2002, based on the State's concession, the district court ordered a new sentencing hearing be held, but denied Dunlap's guilt-phase post-conviction relief. Dunlap timely appealed from the denial of the post-conviction application.

Upon the State's motion the district court stayed Dunlap's resentencing. Dunlap did not file a notice of appeal challenging the stay.

Dunlap v. State, 141 Idaho 50, 55–56, 106 P.3d 376, 381–82 (2004)( Dunlap III ) (footnote omitted). In Dunlap III, this Court upheld the district court's denial of Dunlap's petition for post-conviction relief and the validity of his guilty plea. Id. at 66, 106 P.3d at 392. However, we also recognized that in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Supreme Court of the United States held that death sentences must be imposed by a jury, not a judge, and remanded the case for resentencing by a jury. Id.

The resentencing proceedings began with jury selection on February 6, 2006. The sentencing hearing before the jury was conducted between February 13 and February 22, 2006. Following the presentation of evidence, the jurors were sequestered until their verdict was returned. The jury found that the State proved three statutory aggravating factors beyond a reasonable doubt, specifically: (1) by the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life (I.C. § 19–2515(9)(f)) (the utter disregard aggravator); (2) the murder was committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, kidnapping or mayhem and the defendant had the specific intent to cause the death of a human being (I.C. § 19–2515(9)(g)) (the specific intent aggravator); and (3) the defendant, by prior conduct or conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society (I.C. § 19–2515(9)(h)) 1 (the propensity aggravator). The jury further found that all the mitigating evidence, weighed against each aggravator, was not sufficiently compelling to make imposition of the death penalty unjust. In accordance with the verdict, the district court entered a judgment sentencing Dunlap to death. On May 27, 2008, Dunlap filed his petition for post-conviction relief. Dunlap unsuccessfully moved to disqualify Judge Harding from the post-conviction case. The State moved for summary dismissal of the petition, which the district court granted on November 24, 2009. In this consolidated appeal, Dunlap challenges both the judgment and the summary dismissal of his claims for post-conviction relief.


After the parties' initial briefing was complete, this Court granted the State's request to submit supplemental briefing in response

[313 P.3d 15]

to Dunlap's Reply Brief, in which he argued that Idaho Code § 19–2827 requires this Court to review death sentences for error even if the claimed errors were not raised before the district court. This becomes a threshold issue because twelve of the sixteen sentencing-phase errors Dunlap now advances were not raised during the sentencing proceedings and this Court generally will not consider issues that were not raised at trial unless the defendant demonstrates fundamental error, i.e., “that one of his unwaived constitutional rights was plainly violated.” State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010). This issue is considered first because its resolution determines which of Dunlap's other claims will be considered.

Threshold issue: mandatory sentence review under Idaho Code § 19–2827

1. Whether Idaho Code § 19–2827 requires this Court to review every sentencing error alleged by a capital defendant, even if the error was not raised before the district court, without first applying the fundamental error standard this Court announced in Perry.

Direct appeal issues raised for the first time on appeal

1. Whether the district court erred by limiting individual voir dire of each potential juror to five minutes for each party.

2. Whether the jury instructions presented the issues and stated the applicable law fairly and adequately.

3. Whether some jurors' knowledge that Dunlap had previously been sentenced to death for Crane's murder violated Dunlap's due process and Eighth Amendment rights.

4. Whether the district court erred by not sequestering the jury until the case was submitted for deliberation.

5. Whether the district court erred by failing to ensure that all discussions with counsel during the sentencing proceedings were recorded and that Dunlap was present for those discussions.

6. Whether the State's actions in the voir dire examination, opening statement, presentation of evidence and closing argument constituted prosecutorial misconduct.

7. Whether the district court erred by failing to investigate alleged juror misconduct.

8. Whether the district court erred by granting the State's motion to introduce relevant and reliable evidence without applying the Idaho Rules of Evidence.

9. Whether the district...

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