Tapp v. State, Docket No. 35536 (Idaho App. 3/31/2010)
| Decision Date | 31 March 2010 |
| Docket Number | Docket No. 35536. |
| Parties | CHRISTOPHER CONLEY TAPP, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Joel E. Tingey, District Judge.
Order summarily dismissing a petition for post conviction relief, affirmed in part, reversed in part, and remanded.
Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Dennis A. Benjamin argued.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. Jessica M. Lorello argued.
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Christopher Conley Tapp appeals from the district court's summary dismissal of his application for post-conviction relief. We affirm in part, reverse in part, and remand.
The basic facts of this case were summarized in this Court's previous opinion in State v. Tapp, 136 Idaho 354, 33 P.3d 828 (Ct. App. 2001), as follows:
Early in the morning of June 13, 1996, Angie Dodge was raped and stabbed to death in her apartment in Idaho Falls. On January 7, 1997, twenty-year-old Christopher Tapp voluntarily submitted to police questioning about this crime at the Law Enforcement Building (LEB) in Idaho Falls. Tapp again voluntarily went to the LEB for questioning on January 10. After this interview, Tapp's parents retained private counsel for their son. When Tapp did not appear at the LEB for another scheduled interview on January 11, police officers went to his home to find him. They were informed by Tapp's mother that an attorney had been retained and that Tapp would appear on January 13, with counsel, to answer more questions. Approximately an hour later, the Idaho Falls chief of police arrived at the Tapp home and attempted to convince Tapp's mother to change her mind about her son's refusal to be interviewed without assistance of counsel. She refused. Rather than waiting for a voluntary interview on January 13, law enforcement officials obtained a warrant to arrest Tapp on a charge of accessory to a felony, Idaho Code §§ 18-205, -206, and he was arrested on January 11.
After making the arrest, an officer put Tapp in an interview room and called Tapp's attorney. Before the attorney's arrival, the officer initiated a discussion with Tapp about the type of information the police wanted to obtain from him.1 On January 13, another attorney joined in Tapp's representation as co-counsel. Thereafter, Tapp was interviewed, while under arrest and in police custody, on January 15 and 17. During all interviews at the LEB from January 15 forward, Tapp was separated from his attorneys. The attorneys were placed in a nearby office in the LEB where they were allowed to observe the interviews on a closed-circuit television. Tapp's only contact with his attorneys was during breaks in the interviews. His attorneys apparently made no objection to this arrangement.
In the first few interviews Tapp denied having any knowledge of the crime, then claimed that Ben Hobbs had confessed to killing Dodge and had asked Tapp to help him with an alibi. Tapp denied having ever been at the crime scene. By January 15 and 17, however, Tapp's story was changing, and he admitted that he had accompanied Hobbs to Dodge's apartment on the night of the murder. Tapp told police that Hobbs wanted to confront Dodge because Hobbs believed that she had convinced Hobbs's wife to leave him. Tapp claimed that Hobbs and Dodge started fighting and that Hobbs punched Dodge and then stabbed her twice. Tapp asserted that he ran from the apartment at that point. He admitted that he returned later and found Dodge dead and no one else present. Tapp also implicated a man named Jeremy Sargis in the crime. Tapp said he believed that the murder weapon belonged to Sargis, but he initially claimed that Sargis was not in the apartment that night. Eventually, however, Tapp accused Sargis of helping to rape and murder Dodge.
On January 15, Tapp and the State entered into a "limited use immunity" agreement, and on January 17 they entered into a "cooperation and settlement agreement." These agreements (hereinafter referred to collectively as the "immunity agreements") required Tapp to cooperate with the police investigation of Dodge's death and to provide the police with truthful information about the crime. Tapp also agreed to plead guilty to aiding and abetting an aggravated battery, a felony, I.C. §§ 18-903, -907, and the State agreed not to file any other charge against Tapp related to Dodge's death. The State also promised to recommend at the sentencing hearing that the district court retain jurisdiction for a limited period pursuant to I.C. § 19-2601(4), and to allow withdrawal of the guilty plea if the judge did not follow the recommendation. The State also agreed not to use any of Tapp's statements against him except for impeachment purposes. As a consequence of the immunity agreements, the pending charge against Tapp for accessory to a felony was dismissed on January 17 and he was released from custody.
Tapp was again questioned on January 18 and 29. Before the January 29 interview began, the prosecutor informed Tapp and his attorney that the prosecutor considered the immunity agreements with Tapp to be void because Tapp had not been truthful in describing the crime. The prosecutor explained that Tapp's contention that Hobbs and Sargis were the rapists was contradicted by DNA tests showing that semen found on Dodge's body and clothing did not come from either of those men (or from Tapp). Despite this declaration from the prosecutor, Tapp and one of his attorneys continued with the January 29 interview. On that date, Tapp was given a polygraph test, during which he asked to be taken to the apartment where the murder occurred. Tapp's attorney agreed that the police could take Tapp to the crime scene for further questioning, but the attorney declined to accompany Tapp and the officers. Once at the crime scene, Tapp made statements implicating himself in the crimes. At the crime scene and later the same day at the LEB, Tapp admitted that he had held Dodge's arms and shoulders down throughout the rape and stabbing. In his new account of the events, Jeremy Sargis was replaced by a different male whose name Tapp could not remember. Some details of his story about how Dodge was raped and details of other events of that night changed during this and two subsequent interviews.
Tapp was rearrested after the January 29 interview. The next day, he was again charged with being an accessory to a felony. Tapp was further interviewed on January 30 and 31. On February 3, 1997, charges of rape, I.C. § 18-6101(3), (4), and first degree murder, I.C. §§ 18-4001, -4002, -4003(a), replaced the accessory charge.
Tapp, 136 Idaho at 357-58, 33 P.3d at 831-32. Tapp was found guilty by a jury. Id. at 358, 33 P.3d at 832.
On appeal, this Court ruled that the January 15, 17, 30, and 31 interviews violated Tapp's right to counsel and should have been suppressed. Id. at 362, 33 P.3d at 836. However, this Court held that the statements made on January 7, 10, 18, and 29 were not subject to suppression, specifically upholding the district court's finding that the statements were not the product of coercion or involuntary and that Tapp's Miranda2 rights were not violated on January 29 because he was not in custody at the time the of the January 29 statements. Tapp, 136 Idaho at 362-365, 33 P.3d at 836-839. Tapp's conviction was affirmed because this Court held, beyond a reasonable doubt, that the verdict would have been the same in light of his detailed confession on January 29. Id. at 366, 33 P.3d at 840.
The issues on appeal from Tapp's post-conviction application are, essentially, responsive to this Court's prior opinion. Tapp contends that: (1) had his defense counsel presented additional facts regarding the circumstances surrounding the confession made on January 29, he would have demonstrated that Tapp was in custody at the time, and that the confession was obtained in violation of Tapp's Miranda rights, (2) had counsel presented information as to Tapp's mental health he would have demonstrated involuntariness of his confession, and (3) had counsel called Tapp to testify at trial he would have explained how his confession was coerced. Tapp also asserts that appellate counsel was ineffective for failing to anticipate that this Court would find certain statements suppressible and argue from that determination that the statements made on January 29 were fruit of the poisonous tree. The State made a motion for summary dismissal of Tapp's application, which the district court initially granted in part and denied in part. After the State's motion to reconsider, the district court summarily dismissed all of Tapp's claims. Tapp appeals.
Tapp appeals the summary dismissal of his application for post-conviction relief. Tapp alleges the district court erred in failing to grant an evidentiary hearing on his claims of ineffective assistance of counsel.
On review of dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of material fact exists based on the pleadings, depositions, and admissions together with any affidavits on file. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). However, "while the underlying facts must be regarded as true, the petitioner's conclusions need not be so accepted." Rhoades, 148 Idaho at 250, 220 P.3d at 1069 (quoting Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985)); see also Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). As the trial court, rather than a jury, will be the trier of fact in the event of an evidentiary hearing, summary...
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