Storm v. State

• Decision Date: 08 April 1987
• Docket Number: No. 16098,16098
• Citation: 112 Idaho 718,735 P.2d 1029
• Parties: Rick STORM, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Supreme Court

Page 1029

735 P.2d 1029

112 Idaho 718

Rick STORM, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 16098.

Supreme Court of Idaho.

April 8, 1987.

Stewart A. Morris, Boise, for petitioner-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., and David R. Minert, Deputy Atty. Gen. (argued), Boise, for respondent.

PER CURIAM.

Rick Storm appeals from the district court's decision and order denying his petition for post-conviction relief as provided for in I.C. § 19-4901 et seq. Storm previously had been found guilty of rape. Storm alleges he did not receive effective assistance of counsel at trial. We affirm the decision of the district court.

I. BACKGROUND

The facts as enumerated by Storm and agreed to by the state are as follows. Storm was convicted of committing a rape on June 2, 1981. The victim notified the authorities shortly after the alleged attack. Storm was arrested while walking home from the victim's residence at between 4:00 and 4:30 a.m. Initially, he was arrested and taken into custody pursuant to two outstanding traffic court warrants for failure to pay traffic court fines.

At the Ada County jail, the authorities advised Storm that he was a suspect in an alleged rape and questioned him regarding the incident. Storm initially denied having had sexual contact with the victim, but later admitted to such contact, claiming it was consensual. He then was released following arraignment on the traffic matters.

At approximately 1:30 p.m. on the same day, Storm was formally arrested at his home on the charge of rape. The arresting officers asked Storm to talk to them outside. The arresting officers had no warrant for Storm's arrest; they also testified that no exigency required that they arrest Storm prior to obtaining a warrant. An Ada County prosecuting attorney had authorized a "probable cause" arrest.

Authorities again transported Storm to the Ada County jail where he was interrogated a second time. After being advised of his constitutional rights, Storm asked for an attorney. Officer Sprague testified that Storm subsequently made some spontaneous admissions. Storm claims that the questioning continued after his request for an attorney.

A preliminary hearing was held on June 16 and trial started on July 22. During the five-week period between the preliminary hearing and the trial, counsel for Storm made no pretrial motions to suppress the statements he made to police officers.

In his deposition, Storm's trial counsel stated that he conducted no investigation into the alleged victim's character and reputation for chastity and veracity. At trial, the victim testified that Storm forcibly raped her; he testified that she consented to sexual intercourse. Storm's trial counsel further testified that "I didn't investigate the victim's background, and in hindsight that would have been a good idea."

At trial, the interrogating police officers testified regarding the inconsistent statements Storm had made at the time of his arrest and interrogations. The state used these inconsistent statements to impeach Storm. Counsel for Storm made no objection to the use of these statements.

Storm's counsel believed that Storm needed to testify in his own defense. In his deposition, Storm's counsel noted that Storm was a "terrible witness." As a consequence of his testifying, it was revealed that Storm was on a felony probation. Trial counsel previously had believed Storm to have a "winnable" case.

Storm's counsel admitted no evidence on the victim's previous sexual conduct. His motion in limine to cross-examine the victim and offer other evidence on her previous sexual conduct was denied by the court.

At his deposition, trial counsel testified that the sentence Storm received was far too severe.

After Storm's conviction, his counsel filed no appeal. In his deposition, Storm testified that he asked his counsel to file an appeal, but his counsel indicated that there were no grounds for an appeal. Storm's counsel testified that when such defendants requested appeals they were routinely filed, that he could not recall a conversation with Storm about an appeal, and that he had believed there to be no grounds for an appeal on Storm's behalf.

On appeal, Storm argues his constitutional rights to effective assistance of counsel were violated by his trial counsel's alleged failures (1) to investigate the victim's character and reputation and to present impeaching evidence, (2) to file a motion to suppress or challenge the admissibility of Storm's statements made during custodial interrogations, (3) to object to allegedly prejudicial and inadmissible testimony offered by the state, and (4) to file an appeal. After briefly discussing the appropriate standard for review, we will address these arguments in turn.

II. STANDARD FOR REVIEW

In the recent companion cases of Paradis v. State, 110 Idaho 534, 536, 716 P.2d 1306, 1308 (1986), and Gibson v. State, 110 Idaho 631, 634-35, 718 P.2d 283, 286-87 (1986), we discussed the standard for review both for petitions for post-conviction relief in general and for such petitions alleging ineffective assistance of counsel. We incorporate those discussions by reference, with the following additional comments.

As noted in Paradis, petitions for post-conviction relief are civil proceedings governed by the Idaho Rules of Civil Procedure. 110 Idaho at 536, 716 P.2d at 1308; I.C. 19-4907(a) (1979). The petitioner for post-conviction relief must prove by a preponderance of the evidence that he or she is entitled to relief. Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Holmes v. State, 104 Idaho 312, 313, 658 P.2d 983, 984 (Ct.App.1983).

Where the district court decides after an evidentiary hearing as provided in I.C. § 19-4907 (1979), rather than summarily as provided in I.C. § 19-4906 (1979), the evidence must be "viewed most favorably to the trial court's findings...." Estes v. State, 111 Idaho 430, 434, 725 P.2d 135, 139 (1986). Findings supported by competent and substantial evidence produced at the hearing will not be disturbed on appeal. Holmes, supra, 104 Idaho at 313, 658 P.2d at 984 (citing, inter alia, Lipps v. State, 94 Idaho 185, 484 P.2d 734 (1971)).

In this case, the district court held an evidentiary hearing on November 28, 1983. The record on appeal contains no transcript, minutes, or other document giving an account of this hearing. Thereafter, Storm moved for summary judgment, supporting his motion with transcripts, depositions, and affidavits. The state submitted counter affidavits. The parties stipulated to the record as constituted by the various documents. The district court then rendered its final decision denying Storm's petition, relying on the stipulated record. The district court's decision was made in accordance with the standard appropriate after a full evidentiary hearing and not a summary proceeding where disposition is appropriate only where there is "no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." I.C. § 19-4906(c) (1979). Storm does not appeal from the standards employed by the district court. In this circumstance, we must review the decision of the district court as one pursuant to I.C. § 19-4907 (1979). Deford v. State, 105 Idaho 865, 867, 673 P.2d 1059, 1061 (1983). Thus, the standards for review described above pertain.

III. FAILURE TO INVESTIGATE VICTIM'S BACKGROUND

Storm first argues that trial counsel's performance was defective in that he failed to adequately investigate the alleged victim's background related to veracity and prior sexual conduct--the latter receiving less emphasis. Because Storm claimed consent and the victim testified to the contrary, the victim's credibility and, assuming admissibility, past sexual conduct were potentially relevant and important to Storm's defense. At his deposition, trial counsel admitted, "Well, I didn't investigate the victim's background, and in hindsight I think that would have been a good idea." As we have consistently held, "[W]hen counsel's trial strategy decisions are made upon the basis of inadequate preparation, ignorance of the relevant law, or other shortcomings capable of objective evaluation, the defendant may well have been denied the competent assistance of counsel." Gibson, supra, 110 Idaho at 635, 718 P.2d at 287 (quoting State v. Tucker, 97 Idaho 4, 10, 539 P.2d 556, 562 (1975). Trial counsel's admission of inadequate preparation raises a serious question of effectiveness.

However, we agree with the district court that Storm has failed to prove by a preponderance of the evidence that the alleged incompetency deprived him of a fair trial. To establish a violation of the constitutional guarantee to effective assistance of counsel, the defendant must show both deficient performance and resulting prejudice. Id. at 634-35, 718 P.2d at 286-87 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and Tucker, supra, 97 Idaho at 12, 539 P.2d at 564).

Storm has failed to show admissible evidence or testimony which might have effectively cast doubt on the victim's credibility. To attack a witness's truthfulness with extrinsic evidence other than on cross-examination, I.R.E. 608(a) (Supp.1986) permits only opinion and reputation evidence as to untruthfulness, and not evidence of specific instances of conduct. ¹ None of the potential witnesses interviewed or deposed by Storm provided such testimony, but at best alluded to specific instances of untruthfulness.

Pastor Thomas J. Blackburn came the closest of any of the potential witnesses to providing reputation evidence for veracity. At one point during his deposition, Pastor Blackburn testified somewhat ambiguously as follows:

Q. Was there concern, then, in the community about [the victim's] reputation for truth, honesty and integrity?

A. Yes, sir. They were very concerned of the direction of her life because of her age...