Estes v. State

• Decision Date: 31 July 1986
• Docket Number: 15932,Nos. 15931,s. 15931
• Citation: 725 P.2d 135,111 Idaho 430
• Parties: Kenneth ESTES, Petitioner-Appellant, v. STATE of Idaho, Respondent. STATE of Idaho, Plaintiff-Respondent, v. Kenneth ESTES, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 135

725 P.2d 135

111 Idaho 430

Kenneth ESTES, Petitioner-Appellant, v. STATE of Idaho, Respondent.

STATE of Idaho, Plaintiff-Respondent, v. Kenneth ESTES, Defendant-Appellant.

Nos. 15931, 15932.

Supreme Court of Idaho.

July 31, 1986.

Rehearing Denied Sept. 19, 1986.

John C. Hover, McCall, for petitioner-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., D. Marc Haws, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BAKES, Justice.

Kenneth Estes appeals from the district court's denial of his petition for post conviction relief and his motion for a new trial. Because we find no merit in Estes' many allegations of error, we affirm the trial court.

Although the facts of this case were extensively set out in State v. Estes, 111 Idaho 423, 725 P.2d 128 (1986), Estes' direct appeal from his conviction, a full statement of the facts is helpful to resolution of the issues raised here. In the early morning hours of May 18, 1979, at approximately 2:00 a.m., Julie Ann Somerton, an 18 year old who was working in Cascade, Idaho, and staying at the Cascade Hotel, was raped. Immediately after the rape, Ms. Somerton told the bartender that Estes was her assailant. Ms. Somerton was readily able to identify Estes because the evening before Estes had offered to buy her a drink at the bar, which she had declined.

Later that same night Estes was arrested while he slept in his car along a road outside of McCall, Idaho. He was charged with assault with the intent to commit rape, and rape. Charles Nicholas was appointed to defend him. Prior to trial, Estes was released on $35,000 bond. After Estes expressly waived his right to a speedy trial, trial was set for November 29, 1979.

At trial, Julie Somerton testified as a witness for the state. She testified that Estes had entered her room and forcibly raped her four times. She also testified that Estes had accomplished this by holding a knife to her throat and threatening to kill her. She further testified that after Estes left she screamed for help.

Many parts of Julie Somerton's story were corroborated by testimony from Mr. Kirtland Kitchen, the bartender at the Cascade Hotel. Kitchen testified that Estes had offered to buy Julie a glass of wine. Kitchen also testified that Estes later inquired as to Julie's room number, and had purchased a bottle of Julie's favorite wine. He stated that after hearing Julie's screams he heard someone running down the stairs and an automobile leaving. He stated that he later noticed that Estes' car, which had previously been parked in front of the hotel, was gone. Kitchen also testified that at approximately 1:00 a.m., a short hour before the rape, Estes had rented a room for the night and had been given a room four or five doors from Julie's apartment.

Estes, testifying on his own behalf, completely denied any involvement with the victim. While admitting that he had considered going to Julie's room, he stated that he had thought better of it and ultimately decided to leave the hotel. He testified that although he had just paid for a room, at 2:00 a.m. he decided to drive the 30 miles to McCall because he wanted to submit an application for employment at the Shore Lodge. Estes claimed that he had merely decided not to use the room. At the time he was apprehended in the early morning hours, while sleeping in his car outside McCall, Estes was in possession of a pocket knife like the one used in the rape of Julie Somerton. He also admitted that at the time of his arrest he had only $9.91 in his possession.

At his first trial, Estes called two witnesses on his behalf. The first witness, a friend of Estes, admitted on cross examination that he could recall none of the events of the evening of May 17, 1979, or the early morning hours of May 18, 1979. The second witness testified that Estes was not the man that the witness had seen outside Julie Somerton's room the night of the rape. However, on cross examination, the witness admitted that the light had been poor, that he had been drinking and was groggy, and that he had not been wearing his glasses. The testimony which this witness presented at trial differed substantially from the information the witness had given to the police the night of the rape.

After a three-day trial, the jury returned a verdict finding Estes guilty of rape. Estes remained free on bond pending sentencing. On January 7, 1980, District Judge Walters sentenced Estes to a ten year indeterminate sentence in the Idaho Penitentiary.

After the sentencing hearing, James Schoenhut was appointed to represent Estes on appeal. An appeal was filed and ten days later, on January 17, 1980, Estes was again released on bond pending his appeal. Subsequently it was determined that only part of the transcript could be located. The portion of the transcript containing the testimony of seven of the state's witnesses could not be located. ¹ Accordingly, this Court vacated the district court's judgment and remanded the cause for a new trial. Meanwhile, Estes remained free on bond.

A new trial was set for January 31, 1983. At this trial Estes was represented by Schoenhut, his counsel in the earlier appeal. The record contains an affidavit from Schoenhut stating that the partial transcript of the first trial was available to Schoenhut and that Schoenhut extensively studied that transcript. That transcript included the testimony of the victim, Julie Somerton.

At the second trial, Julie Somerton again testified for the state, with Kitchen corroborating her story. The state similarly re-introduced expert testimony seeking to link Estes to the rape. Estes also testified on his own behalf again. However, the two witnesses who had formerly testified for Estes did not testify at this second trial.

On February 2, 1983, a jury again returned a verdict of guilty as to the crime of rape. It was at this time that Estes was actually taken into custody. Then, on March 4, 1983, Estes was again sentenced, receiving a seven year indeterminate sentence.

On March 16, 1983, Schoenhut filed a notice of appeal on Estes' behalf. On June 10, 1983, Estes filed a pro se motion for post conviction relief alleging, inter alia, inadequacy of counsel. Subsequently, John Hover, Estes' present counsel, was appointed. Hover represented Estes both on the second appeal and in this post conviction proceeding.

On July 9, 1984, the district court denied Estes' motion for post conviction relief on several grounds but left open, pending an evidentiary hearing, the question of whether Estes had effective assistance of counsel. On November 14, 1984, Estes filed a motion for a new trial pursuant to Idaho Criminal Rule 34. After an evidentiary hearing the district court, on February 20, 1985, denied Estes' motion for a new trial as well as Estes' motion for post conviction relief. Estes' direct appeal from his conviction was considered by this Court in State v. Estes, 111 Idaho 423, 725 P.2d 128- (1986). In this consolidated appeal, Supreme Court Nos. 15931-15932, we address the issues raised in Estes' appeal from the district court's denial of his petition for post conviction relief and denial of his motion for new trial.

I

Estes alleges that he received ineffective assistance of counsel at trial. In support of this argument, he points to what he alleges are several "glaring" deficiencies, the "cumulative effect" of which, he alleges, "reflect a reasonable probability that appellant was damaged through ineffective assistance of counsel." We disagree.

The United States Supreme Court has enunciated the standards to be used in determining whether a defendant received effective assistance of counsel at trial. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court stated:

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." 466 U.S. at 687, 104 S.Ct. at 2064.

As the Court further stated:

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-34, 102 S.Ct. 1558, 1574-75, 71 L.Ed.2d 783 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' See Michel v. Louisiana, 350 U.S. at 101, 76 S.Ct. at 164 ." Id. 104 S.Ct. at 2065-66.

While declining to furnish specific guidelines, the Court noted:

"The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the...