Thomas v. State

• Decision Date: 28 February 2008
• Docket Number: No. 33356.,33356.
• Citation: 145 Idaho 765,185 P.3d 921
• Parties: Steven E. THOMAS, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

185 P.3d 921

145 Idaho 765

Steven E. THOMAS, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 33356.

Court of Appeals of Idaho.

February 28, 2008.

Review Denied June 5, 2008.

Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Robyn A. Fyffe argued.

Hon. Lawrence G. Wasden, Attorney General; Daniel W. Bower, Deputy Attorney General, Boise, for respondent. Daniel W. Bower argued.

PERRY, Judge.

Steven E. Thomas appeals from the district court's order dismissing his application for post-conviction relief following an evidentiary hearing. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

In early February 2002, a fire destroyed the interior of Thomas's mobile home. Thomas, who called 911, told investigators that he lit candles upon arriving home from a bar, smoked a cigarette in bed, and later awoke and went to the store to buy more cigarettes. Thomas stated that, when he returned from the store, his home was in flames. A local fire investigator who arrived at the scene that day concluded in his report that the cause of the fire was undetermined.

The day after the fire, a woman from an escort service called the police to inform them that Thomas had admitted to her that he burned his home for insurance proceeds. The escort told the police that, prior to the fire, Thomas had stated that he was going to burn his home to collect insurance proceeds and that Thomas called the day after the fire to tell her that he had gone through with his plan. The escort allowed the police to set up surveillance in her apartment and she invited Thomas over. While at the escort's apartment, Thomas confessed to the escort that he had lit his bedding on fire with candles in order to collect the proceeds from his recently-purchased renter's insurance.

Thomas was charged with first degree arson. I.C. § 18-802. At trial, the escort testified concerning Thomas's confession, and the video from the escort's apartment containing Thomas's confession was played for the jury. The jury found Thomas guilty. Thomas appealed and this Court affirmed his judgment of conviction and sentence. State v. Thomas, 140 Idaho 632, 97 P.3d 1021 (Ct.App.2004).

Thomas filed a pro se application for post-conviction relief and a motion for the appointment of counsel. Thomas's motion for post-conviction counsel was granted, and Thomas filed an amended application for post-conviction relief. Thomas's post-conviction applications contained claims of ineffective assistance of both trial and appellate counsel. After an evidentiary hearing at which Thomas and his trial attorney testified, the district court dismissed Thomas's post-conviction application. Thomas appeals.

II. STANDARD OF REVIEW

In order to prevail in a post-conviction proceeding, the applicant must prove the allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 801 P.2d 1216 (1990). When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 794 P.2d 654 (Ct.App.1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct.App.1988). We exercise free review of the district court's application of the relevant law to the facts. Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct.App.1992).

III. ANALYSIS

A claim of ineffective assistance of counsel may properly be brought under the post-conviction procedure act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct.App.1992). To prevail on an ineffective assistance of counsel claim, the defendant must show that the attorney's performance was deficient and that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674, 693-94 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995). To establish a deficiency, the applicant has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the applicant must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177. This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct.App.1994).

A. Ineffective Assistance of Trial Counsel

1. Failure to communicate

Thomas argues his trial counsel was ineffective for failing to communicate with him. At oral argument before this Court, Thomas asserted that the overarching claim in his application for post-conviction relief was a failure by his trial counsel to communicate with him. Thomas asserts that he mailed three letters to his attorney during three consecutive months and never received a response. Thomas's letters requested discovery from his attorney and asked his attorney to file various motions on his behalf. The state asserts that, because Thomas's amended petition does not contain a claim of ineffective assistance of trial counsel for failure to communicate and because that claim is not addressed in the district court's opinion, Thomas is precluded from raising it before this court. Fox v. State, 125 Idaho 672, 676-77, 873 P.2d 926, 930-31 (Ct.App.1994) (holding that issues not raised before the district court cannot be raised for the first time before this Court).

For the purpose of this opinion, we will assume that Thomas properly preserved this claim by arguing it before the district court. The Idaho appellate courts have recognized the claim of ineffective assistance of counsel for counsel's failure to communicate. See, e.g., Parrott v. State, 117 Idaho 272, 275, 787 P.2d 258, 261 (1990) (holding that summary disposition was appropriate without some indication in the record as to how further consultation might have affected the results at trial); Jones v. State, 125 Idaho 294, 297, 870 P.2d 1, 4 (Ct.App.1994) (holding that Jones's application was insufficient because it did not indicate how communication with counsel would have affected trial or how he would have proceeded differently).

Thomas argues that his trial attorney's failure to communicate with him was inconsistent with the standards articulated in both the American Bar Association Criminal Justice Standards and the Idaho Rules of Professional Conduct. However, under the Strickland test for ineffective assistance of counsel, even if we assume without deciding that counsel's performance was deficient, Thomas must still demonstrate that this failure to communicate prejudiced his case. Essentially, Thomas's claim is that, if his trial attorney would have communicated with him, the attorney would have interviewed various witnesses, more aggressively cross-examined the escort, hired an investigator, and filed Thomas's motions. Therefore, in order to determine whether counsel's failure to communicate with Thomas prejudiced him, we must evaluate the validity of Thomas's other claims and determine whether they are meritorious.

2. Failure to adequately prepare for trial

Thomas argues that he received ineffective assistance of trial counsel based on his attorney's failure to adequately prepare for trial and investigate his case. The state counters by arguing that the district court's order is supported by substantial evidence and not based on a misapplication of law, and Thomas has failed to demonstrate otherwise.

Determining whether an attorney's pretrial preparation falls below a level of reasonable performance constitutes a question of law, but is essentially premised upon the circumstances surrounding the attorney's investigation. Gee v. State, 117 Idaho 107, 110, 785 P.2d 671, 674 (Ct.App.1990). To prevail on a claim that counsel's performance was deficient in failing to interview witnesses, a defendant must establish that the inadequacies complained of would have made a difference in the outcome. Id. at 111, 785 P.2d at 675. It is not sufficient merely to allege that counsel may have discovered a weakness in the state's case. Id. We will not second-guess trial counsel in the particularities of trial preparation. Id.

In this case, Thomas asserts that he received ineffective assistance of counsel because his trial attorney failed to investigate the escort's motivation for testifying against him and failed to aggressively cross-examine the escort. At his post-conviction hearing, the following exchange between Thomas and his post-conviction attorney occurred:

Q. How do you think—your perceived failure of [trial counsel's] examination of [the escort], how do you think a different approach might have changed the outcome of your trial?

A. I think if he would have been aggressive, that it would have been brought out that she did have a motive.

Q. And what did you believe that motive was?

A. That she had been previously busted for prostitution and tried to make the very best deal possible to keep herself out of trouble.

Q. How did you know that she had been previously busted?

A. It was just a suspicion that I had.

The record demonstrates that Thomas's trial counsel did extensively cross-examine the escort. Thomas's brief contends that "there is a reasonable probability that the result of the trial would have been different if Mr. Thomas had been allowed to review the discovery and if there had been...