Thorngren v. State

• Decision Date: 31 October 2013
• Docket Number: 2013 Unpublished Opinion No. 735,Docket No. 39596
• Parties: DONNA KAY THORNGREN, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.
• Court: Idaho Court of Appeals

DONNA KAY THORNGREN, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.

Docket No. 39596

2013 Unpublished Opinion No. 735

COURT OF APPEALS OF THE STATE OF IDAHO

Filed: October 31, 2013

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Timothy Hansen, District Judge.

Judgment dismissing amended petition for post-conviction relief, affirmed.

Greg S. Silvey, Star, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

GUTIERREZ, Chief Judge

Donna Kay Thorngren appeals from the judgment dismissing her amended petition for post-conviction relief. On appeal, Thorngren argues the district court erred by granting summary dismissal of Thorngren's claim of ineffective assistance of defense counsel. For the reasons that follow, we affirm.

I.FACTS AND PROCEDURE

Underlying this post-conviction relief action is Thorngren's conviction of first degree murder. The facts of the first degree murder trial, as previously set forth by the Idaho Supreme Court, are as follows:

Donna Thorngren's husband, Curtis, was murdered on January 12, 2003. A grand jury indicted Donna for Curtis' murder and indicted her son, Austin, as an accessory to murder. Donna and Austin were to be tried in a joint proceeding. However, Donna filed a pretrial motion to sever her trial from Austin's, claiming a joint trial would violate her Confrontation Clause rights. Specifically, the State sought to introduce a statement Austin made to his friend, Adam Ketterling,tending to incriminate his mother in the murder. If admitted, the statement would arguably violate Donna's Confrontation Clause rights should Austin invoke his Fifth Amendment right not to testify. The statement occurred after a conversation between Donna and Austin in a shed outside Donna's mother's home on the day Curtis was murdered, but before his body was discovered. Ketterling entered the shed shortly after Donna left and found Austin visibly shaken. When Ketterling asked Austin what was wrong, he said "I think my mom did it." This statement is referred to as the "shed statement." Upon further questioning of Ketterling at the grand jury hearing, Ketterling testified he believed this statement meant "she [Donna] killed his dad [Curtis] that morning."

Donna's motion to sever was heard on April 19, 2007, and at the conclusion of the hearing the district court ruled that it would sever Austin's and Donna's trials. In the context of deciding the Confrontation Clause issue, the court stated the shed statement "would not be admissible as against Donna" as an excited utterance because it was in response to a question.

The shed statement also played a part in a motion Donna filed on March 30, 2007, to dismiss the first degree murder charge against her, based upon alleged irregularities in the grand jury proceedings. Donna contended that the indictment for the first degree murder charge was based upon inadmissible evidence (the shed statement) and, in the absence of such evidence, there was insufficient evidence presented before the grand jury to support a probable cause determination. One week before trial, the district court issued its written opinion denying the motion to dismiss and holding the shed statement would be admissible as an excited utterance. Donna filed a motion for continuance arguing the changed ruling impaired her trial strategy, specifically citing only the lack of preparation for Ketterling's impeachment as a basis for granting the motion. The district court denied the motion stating that such "generalized statements as to the difficulties that the defense might face" were insufficient grounds for granting the motion. The matter proceeded to trial and Donna was convicted of first degree murder.

State v. Thorngren, 149 Idaho 729, 730-31, 240 P.3d 575, 576-77 (2010) (alterations in original) (footnote omitted).

Thorngren appealed from the judgment of conviction, contending the trial court abused its discretion in concluding the shed statement was an excited utterance, the trial court violated Thorngren's right to due process by reversing an earlier ruling that the statement was inadmissible hearsay, and the trial court abused its discretion by refusing to grant a continuance. This Court affirmed the judgment of conviction in an unpublished opinion. State v. Thorngren, Docket No. 34806 (Ct. App. Jun. 24, 2009). The Idaho Supreme Court granted review of the case and also affirmed the judgment of conviction. Thorngren, 149 Idaho 729, 240 P.3d 575.

Following the Supreme Court's affirmance, Thorngren filed a pro se petition for post-conviction relief. In support of her petition, Thorngren included affidavits from Austin Thorngren and Amber Whitmore. The affidavits contained statements that seemingly contradicted Ketterling's trial testimony. The district court appointed counsel for Thorngren, and Thorngren filed an amended petition for post-conviction relief. In her amended petition, Thorngren argued her defense counsel provided ineffective assistance of counsel, claiming her counsel (1) failed to obtain evidence that would impeach the shed statement at trial or render the shed statement inadmissible at trial as a result of her defense counsel's reliance on the trial court's earlier pronouncement concerning the shed statement; (2) failed to properly articulate the need for additional time to investigate the shed statement in the motion for continuance; (3) failed to hire expert witnesses to review the State's evidence; (4) failed to hire an investigator for the case; and (5) failed to adequately interview fifteen witnesses. The State answered and moved for summary dismissal. After a hearing on the motion, the district court determined: (1) Thorngren could not show she was prejudiced by her defense counsel's reliance on the trial court's initial pronouncement concerning the shed statement; (2) Thorngren could not show additional arguments would have been meritorious in granting a continuance nor show the outcome of the trial would have been different had a continuance been granted; (3) Thorngren failed to identify what testimony an expert witness could have provided; (4) Thorngren failed to identify how hiring an investigator would likely have changed the outcome of the trial; and (5) Thorngren failed to articulate how the testimony of the majority of the witnesses would affect the outcome of trial, and as to Austin and Amber, failed to show prejudice. The district court granted the motion for summary dismissal and entered a judgment dismissing Thorngren's amended petition for post-conviction relief. Thorngren appeals.

II.STANDARD OF REVIEW

A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like plaintiffs in other civil actions, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Idaho Code § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Goodwin v. State, 138 Idaho269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action, however, in that it must contain more than "a short and plain statement of the claim" that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 Idaho at 271, 61 P.3d at 628. The petition must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records or other evidence supporting its allegations must be attached, or the petition must state why such supporting evidence is not included. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).

Idaho Code § 19-4906(c) authorizes summary dismissal of a petition for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative, if "it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district court is not constrained to draw inferences in the petitioner's favor, but is free to arrive at the most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at 483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036, 1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen's Creamery Ass'n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).

Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the...