State v. Lovelace

Decision Date23 July 2003
Docket Number No. 26927., No. 24373
Citation90 P.3d 278,140 Idaho 53
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Faron E. LOVELACE, Defendant-Appellant. Faron Earl Lovelace, Petitioner-Appellant, v. State of Idaho, Respondent.
CourtIdaho Supreme Court

Molly J. Huskey, State Appellate Public Defender; Mark James Ackley, Deputy State Appellate Public Defender, Boise, for appellant. Mark James Ackley, argued.

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

WALTERS, Justice.

This is a consolidated appeal from Lovelace's conviction for first-degree murder and first-degree kidnapping, for which he was given the death penalty, and from the order summarily dismissing his application for post-conviction relief. We remand for resentencing.


Faron Lovelace, a convicted felon and federal fugitive, was arrested by the United States Marshal Service in Bonner County in August of 1996 on federal firearms violations. While being held in the Bonner County jail after his arrest, Lovelace disclosed to law enforcement that he had murdered Jeremy Scott approximately a year earlier, after confronting him at gunpoint, holding him at Scott's cabin site in northern Bonner County, then shooting him in the back of the head as part of a preconceived plan. Lovelace agreed to lead police to where he had hidden the body. The disclosure was part of Lovelace's plan to confess to Scott's murder, in exchange for a guarantee from Bonner County detectives that they would guarantee him the death penalty and not pursue any charges against his common law wife.

Lovelace was charged with first-degree murder, first-degree kidnapping, and aggravated assault, the last of which was subsequently dropped. Counsel was appointed to represent Lovelace, who had indicated to the court at his initial appearance that he wished to receive the death penalty. In light of Lovelace's expressed desire for the death penalty, defense counsel requested that the court order a competency evaluation.

The prosecution moved to have defense counsel, Philip Robinson, disqualified on the basis that he was campaigning for election to the position of Bonner County Prosecutor. The State withdrew its motion, and Lovelace consented to have Robinson continue to represent him, waiving any potential conflict of interest from Robinson's pursuit of the elective position.

Lovelace then filed his first motion to the court to be allowed to proceed pro se. Lovelace waived his preliminary hearing, and he was bound over to the district court. Lovelace then filed a motion to dismiss Robinson as counsel due to a possible future conflict of interest; however, the court refused to appoint new counsel at that time. The arraignment was continued, and the district court then entered a not-guilty plea for Lovelace. New counsel was appointed to represent Lovelace, once Robinson was sworn in as Bonner County Prosecutor.

Newly appointed defense counsel asked the court for a second competency evaluation of Lovelace. Dr. Stephen Poffel prepared a second competency evaluation with respect to his April 1997 evaluation of Lovelace, reaffirming his original conclusion that Lovelace was "able to think normally" and was competent to stand trial. Dr. Michael Urban prepared a report dated February 28, 1997, in which he found Lovelace competent to stand trial and to waive his right to counsel.

Lovelace again sought to represent himself. On August 6, 1997, one month before the scheduled trial, the district court issued an order allowing Lovelace to proceed pro se and to be assisted, if needed, by attorney Roger Williams. The court's order recited that after a "detailed inquiry of the defendant relating to his understanding of the criminal process, his competency to waive his right to counsel, and his ability to understand the nature of the proceedings ... the court hereby concludes that the defendant knowingly, freely and voluntarily has waived his right to be represented by attorneys at public expense. The court further concludes that the defendant is competent to waive counsel."

Lovelace gave an opening statement at trial, called two witnesses and testified himself. At the conclusion of the trial, the jury found Lovelace guilty of first-degree murder and first-degree kidnapping.

Prior to sentencing, a presentence report was prepared and provided to Lovelace and his attorney assistant. Lovelace represented himself at sentencing. On December 17, 1997, the trial court sentenced Lovelace to death. Lovelace filed a timely notice of appeal.

Lovelace was appointed new counsel for the post-conviction proceedings. He filed a pro se application for post-conviction relief in January of 1998. Again, he requested that counsel be dismissed and that he be allowed to proceed pro se. The court granted the motion on August 10, 1998, subject to the appointment of the SAPD as standby counsel. The SAPD filed an amended application for relief on March 3, 1999. In September of 1999, Lovelace moved the court to dismiss the SAPD and to allow him to argue his January 28, 1998 application for post-conviction relief pro se. Pursuant to an order dated December 29, 1999, Lovelace again was allowed to represent himself, with Tom McCabe appointed as attorney advisor.

On March 23, 2000, Lovelace sent a letter to the court indicating that he was withdrawing his application and waiving any post-conviction relief. The district court gave notice of its intent to dismiss the application. By letter of July 16, 2000, Lovelace challenged some of the language used in the court's notice and referenced exhibits that he had provided to the court, supporting his earlier claims. Concluding that Lovelace had not substantively responded to the notice of intent to dismiss, the court entered an order summarily dismissing Lovelace's post-conviction relief application. A timely appeal was filed and the State Appellate Public Defender commenced representation of Lovelace.


1. Was Lovelace denied the right to effective assistance of counsel because of the lower courts' inadequate inquiries into the nature and extent of a conflict of interest or because of an actual conflict of interest that adversely affected defense counsel's performance?

2. Was Lovelace denied his right to due process by the trial court's failure to suspend the proceedings and conduct an appropriate hearing on the issue of his competence to stand trial?

3. Did the trial court err in finding Lovelace competent?

4. Did the trial court err in failing to insure that Lovelace's waiver of counsel was knowing, intelligent and voluntary?

5. Was it reversible error for the district court to fail to record all proceedings and to transcribe all recorded proceedings despite defendant's request in his notice of appeal?

6. Was Lovelace denied his Sixth, Eighth and Fourteenth Amendment rights when the district court denied his request for an investigator to assist him in preparing his defense?

7. Did the district court's "reasonable doubt" instruction depart from the instruction approved in Idaho, thereby lessening the state's burden of proof of the murder charge against Lovelace?

8. Did the district court improperly exclude prospective jurors for cause based on their responses that the death penalty could influence their decision-making ability, contrary to Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)?

9. Because Idaho's death penalty statute has been deemed unconstitutional for dispensing with jury fact-finding of aggravating circumstances under Ring v. Arizona, is resentencing barred by the Double Jeopardy Clause or ex post facto considerations?

10. Did the district court err in reviewing the victim impact statements that contained opinions espousing the death penalty for Lovelace?

11. Did the district court err in allowing Lovelace to represent himself during post-conviction proceedings and did the court err in denying him a continuance to present additional information on the issue of competence to waive post-conviction counsel?

12. Did the district court err in summarily dismissing Lovelace's application for post-conviction relief?

13. Does the accumulation of errors require reversal?

1. Conflict of interest

The right to conflict-free representation derives from the Sixth Amendment as applied to the states by the Due Process Clause of the Fourteenth Amendment. Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170 (1932). This right has been accorded "not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial." Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 1240, 152 L.Ed.2d 291, 300 (2002), citing United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). It follows from this that assistance which is ineffective in preserving fairness does not meet the constitutional mandate. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Whenever a trial court knows or reasonably should know that a particular conflict may exist, the trial court has a duty of inquiry. See Wood v. Georgia, 450 U.S. 261, 272-73, 101 S.Ct. 1097, 1104, 67 L.Ed.2d 220, 230-31 (1981); Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333, 346 (1980). The scope and nature of the affirmative duty of the trial judge to assure that criminal defendants are not deprived of the effective assistance of counsel by joint representation of conflicting interests is second only to the concern as to how strong a showing of conflict must be made before a court will conclude that the defendants have been deprived of their right to effective assistance. See Holloway v. Arkansas, 435 U.S. 475, 483, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426, 434 (1978). "In...

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    ...the trial judge to make the factual findings regarding the existence of aggravating circumstances. State v. Lovelace (Lovelace I), 140 Idaho 53, 66-67, 90 P.3d 278, 291-92 (2003). When reviewing a Ring error, this Court applies a structural error analysis. See State v. Lovelace (Lovelace II......
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