Yon v. State, 20184

• Decision Date: 18 November 1993
• Docket Number: No. 20184,20184
• Citation: 124 Idaho 821,864 P.2d 659
• Parties: David W. YON, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 659

864 P.2d 659

124 Idaho 821

David W. YON, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 20184.

Court of Appeals of Idaho.

Nov. 18, 1993.

Petition for Review Denied Jan. 10, 1994.

Vrable & Jackson, Hayden, for petitioner-appellant. Michael J. Vrable, argued.

Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent. Michael A. Henderson, argued.

PERRY, Judge.

David W. Yon was found guilty by a jury of second degree murder and sentenced to an indeterminate term of twenty years. This Court affirmed the conviction and sentence in a direct appeal. State v. Yon, 115 Idaho 907, 771 P.2d 925 (Ct.App.1989). Yon filed an application for post-conviction relief, alleging ineffective assistance of counsel and that the jury instructions, when given in their entirety, constituted fundamental error. On the state's motion, the district court dismissed Yon's application. Yon appeals the dismissal of his application. For the reasons stated below, we affirm.

I.

We first note that an application for post-conviction relief under I.C. § 19-4901 is a special proceeding, civil in nature, and is an entirely new proceeding, distinct from the criminal action which led to the conviction. Paradis v. State, 110 Idaho 534, 536, 716 P.2d 1306, 1308 (1986); State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Nellsch v. State, 122 Idaho 426, 430, 835 P.2d 661, 665 (Ct.App.1992). In a post-conviction proceeding brought under this section, the burden is on the applicant to establish grounds for relief by a preponderance of the evidence. Odom v. State, 121 Idaho 625, 626, 826 P.2d 1337, 1338 (Ct.App.1992). When reviewing a summary disposition of an application for post-conviction relief, we independently review the record to determine whether a genuine question of material fact exists, and whether the moving party is entitled to judgment as a matter of law. Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct.App.1988).

Yon first challenges his conviction based on the claim that he was denied effective assistance of counsel at trial by reason of trial counsel's failure to object to certain instructions and to request other instructions. Challenges to jury instructions normally may be raised on direct appeal, even where the objection or request was not raised below. Therefore, the propriety of jury instructions is not ordinarily a matter that can be asserted in an application for post-conviction relief. I.C. § 19-4901(b). However, because the same attorney that represented Yon at trial also handled his direct appeal, the trial court properly allowed this issue to be considered in a post-conviction application.

Yon alleges that during the time of the trial and appeal, his attorney was ineffective due to the debilitating effects of terminal cancer and counsel's taking of various medications for his illness. Specifically, however, Yon alleges ineffective assistance based on his trial counsel's failure to seek an excusable homicide instruction, counsel's request that an involuntary manslaughter instruction not be given and counsel's failure to object to a general intent instruction.

In order to prove a claim of ineffective assistance of counsel, the petitioner must show that the attorney's conduct fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984); Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). There is a strong presumption that trial counsel's performance falls within the wide range of "professional assistance." Id. A petitioner must not only show incompetence, but must also show that the deficient conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992).

With respect to counsel's request that the involuntary manslaughter instruction not be given to the jury, a review of the record fails to reveal that this decision was based on any shortcoming in counsel's preparation or knowledge. It appears instead that this was a tactical decision designed to secure a full acquittal, instead of allowing the jury to find Yon guilty of a lesser included offense. Defense counsel's strategy is one that is available and is utilized in many criminal cases. We have held 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. Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct.App.1989). In his affidavit attached to his application for post-conviction relief, Yon presents no evidence that this decision was in any way the result of inadequate preparation or ignorance of the law. Therefore, we reject Yon's claim of ineffective assistance regarding counsel's request not to give this instruction.

The failure to request an excusable homicide instruction can also be viewed as a tactical or strategic decision by defense counsel. Assuming such failure was not a tactical decision, however, it cannot be said that it shows counsel was so deficient as to undermine the proper functioning of the adversarial process. Although an instruction on excusable homicide was not requested, the jury was instructed that in order to find the defendant guilty, the jury would have to find that the defendant intended to kill the victim. Likewise, the prosecutor remarked in closing argument that "If it was self-defense or an accident, he is not guilty." Under these circumstances, the jury was adequately apprised that if they accepted Yon's account that the killing was accidental or an accident in the course of self-defense, it was their duty to acquit Yon. Without some showing of prejudice, beyond the mere fact that the instruction was not given, this claim in the post-conviction application was properly dismissed.

The third item that Yon points to as evidence of the ineffective assistance of counsel is Instruction No. 4 which contains the definitional language on general intent. Yon claims that this instruction contradicted the other instructions given and would have confused the jury. The instruction in question reads as follows:

An essential element of the crime of which the Defendant is accused is intent, the law requiring that to...