Bakke v. State ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48659
DAVID ROY BAKKE, )
) Filed: May 10, 2022
Petitioner-Appellant, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
STATE OF IDAHO, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. Benjamin J. Cluff, District Judge.
Judgment dismissing petition for post-conviction relief, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
General, Boise, for respondent.
__________________________________________________________________
HUSKEY, Judge
David Roy Bakke appeals from the district court’s judgment dismissing his petition for
post-conviction relief. Bakke was convicted in the underlying criminal case of grand theft for
retaining a rental vehicle without paying for it. Bakke alleges the district court abused its discretion
when it denied Bakke’s discovery motion related to his claim of ineffective assistance of trial
counsel for failing to obtain phone and vehicle rental history records. Bakke argues that because
the district court erred in denying the discovery request, it erred in subsequently dismissing the
above claims of ineffective assistance of counsel and his petition. Discovery in a post-conviction
action is not required unless it is necessary to protect a petitioner’s substantial rights. Neither the
phone nor the vehicle history records are necessary to protect one of Bakke’s substantial rights,
and the district court did not abuse its discretion by denying Bakke’s discovery motion. Bakke
failed to allege a genuine issue of material fact regarding his claim of ineffective assistance of trial
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counsel; consequently, the district court did not err in dismissing the claim, specifically, or the
petition, generally. The judgment dismissing Bakke’s petition for post-conviction relief is
affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A jury found Bakke guilty of grand theft for retaining a rental vehicle for approximately
four months without paying for it despite repeated contact with, and requests from, the rental
company to return the vehicle. State v. Bakke, 168 Idaho 226, 228, 481 P.3d 1197, 1199 (Ct. App.
2020). Bakke filed an Idaho Criminal Rule 35 motion, which was denied. Bakke appealed, and
this Court affirmed the district court’s order of restitution and denial of Bakke’s Rule 35 motion.
Id. at 233, 481 P.3d at 1204.
Bakke filed a petition for post-conviction relief raising various claims, and the district court
appointed Bakke counsel. Bakke filed an amended petition for post-conviction relief alleging, in
part, ineffective assistance of counsel for failing to obtain phone records that would show frequent
communication between Bakke and Avis during the time period Bakke retained the vehicle;
financial records that would show Bakke made payments to Avis during that time period; and
rental records that would show the course of dealings between the parties and that Bakke had a
history with Avis of full payment upon returning vehicles.1 Bakke filed a motion for discovery to
subpoena the phone, financial, and rental history records to support his post-conviction claims.
After a hearing, the district court granted Bakke leave to subpoena his financial records for the
relevant time period but found Bakke’s other discovery requests were irrelevant and/or speculative,
and the court denied the remainder of the motion to subpoena the phone and rental history records.
The district court held an evidentiary hearing on Bakke’s petition for post-conviction relief
at which Bakke and the two attorneys, Rodriquez and Essma,2 who represented Bakke during his
underlying criminal proceeding testified. The district court made factual findings regarding the
actions of each of Bakke’s trial attorneys. Although there was conflicting testimony about the
phone and rental history records, the district court found that “despite whatever records Petitioner
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Bakke made other allegations in his post-conviction petition, none of which are at issue in
this appeal.
2
Rodriguez represented Bakke prior to trial, and Essma appeared shortly before trial and
represented Bakke during the trial.
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communicated to Essma that he wanted to obtain prior to trial” and despite Essma explaining that
a continuance of the trial was necessary to obtain and adequately analyze these records, Bakke did
not want to continue the trial and chose to go to trial without the documents.
First, the district court held Bakke did not allege a genuine issue of material fact regarding
his claims to establish ineffective assistance of counsel for failure to obtain his phone records. The
district court found neither Rodriquez nor Essma acted deficiently in not obtaining the phone
records because they were not put on notice of facts that would give rise to a need to investigate
these records. Further, the district court found even if counsel were put on notice of the importance
of the phone records, Bakke told Essma not to seek the records because it would have required a
continuance of the trial; consequently, Bakke could not establish trial counsel acted unreasonably
in pursuing that trial strategy.3 Finally, the district court held Bakke could not establish prejudice
even if counsel acted deficiently, because the records would merely indicate the number of calls
made or attempted between the parties, not the substance of the calls. Bakke also did not show
how the records would have a reasonable probability of disproving an element of grand theft.
Thus, the district court found any assertion that the phone records would have changed the outcome
of the case would be speculative.
Second, the district court found that Bakke did not establish ineffective assistance of
counsel for the failure to obtain his past rental history. Again, because Bakke instructed Essma to
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The district court’s factual findings are unchallenged by either party, and the court found
that Bakke did not inform Rodriguez or Essma of any exculpatory evidence in his phone or rental
history records and Bakke specifically instructed Essma to proceed to trial without subpoenaing
any records. When evaluating a claim for ineffective assistance of counsel, “this Court
does not second-guess strategic and tactical decisions . . . unless the decision is shown to have
resulted from inadequate preparation, ignorance of the relevant law or other shortcomings capable
of objective review.” State v. Yakovac, 145 Idaho 437, 444, 180 P.3d 476, 483 (2007). There is a
strong presumption that counsel’s performance was within the range of acceptability, particularly
as to things like defense counsel’s choice of witnesses, manner of cross-examination, and lack of
objections to testimony, which are generally considered to fall within the realm of tactical
or strategic decisions. Giles v. State, 125 Idaho 921, 924, 877 P.2d 365, 368 (1994). Trial
counsel’s failure to obtain documents was done after consultation with Bakke and in accordance
with Bakke’s wishes, and thus, was a reasonable trial strategy. As such, Bakke cannot establish
deficient performance and his claims of ineffective assistance of counsel fail on the merits.
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proceed to trial without the records, Bakke could not establish deficient performance. Even if
Bakke had established counsel acted deficiently by failing to obtain the rental history records, the
district court found Bakke was not prejudiced by the deficiency because, despite any flexible
relationship between Bakke and Avis in the past, the evidence of Avis’s contacts with Bakke
“overwhelmingly disprove[d]” the existence of permission to retain the car in the underlying
criminal case. The district court found Bakke did not allege any genuine issue of material fact as
to the claims of ineffective assistance of counsel and entered a judgment dismissing Bakke’s
petition. Bakke timely appeals.
II.
STANDARD OF REVIEW
Whether to authorize discovery is a matter directed to the discretion of the court.
Raudebaugh v. State, 135 Idaho 602, 605, 21 P.3d 924, 927 (2001). When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to
determine whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted
within the boundaries of such discretion; (3) acted consistently with any legal standards applicable
to the specific choices before it; and (4) reached its decision by an exercise of reason. Lunneborg
v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).
On appeal from an order of summary dismissal, we apply the same standards utilized by
the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if
true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929
(2010); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (2008). Over questions of law,
we exercise free review. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009);
Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).
III.
ANALYSIS
On appeal, Bakke alleges the district court abused its discretion when it denied his
discovery motion for his phone and rental history records; therefore, the dismissal of his claims of
ineffective assistance of counsel relating to these records, and the ultimate dismissal of the petition,
was in error. In response, the State alleges the district court did not err by denying Bakke’s
discovery motion for his phone and rental history records and dismissing his petition for post-
conviction relief.
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When a petitioner believes discovery is necessary for acquisition of evidence to support a
claim for post-conviction relief, the petitioner must obtain authorization from the district court to
conduct discovery. I.C.R. 57(b); Raudebaugh, 135 Idaho at 605, 21 P.3d at 927. Discovery in a
post-conviction action is not required unless necessary to protect a petitioner’s substantial rights.
Murphy v. State, 143 Idaho 139, 148, 139 P.3d 741, 750 (Ct. App. 2006); Griffith v. State, 121
Idaho 371, 375, 825 P.2d 94, 98 (Ct. App. 1992). Discovery may be denied where the petitioner’s
claims are nothing more than speculation, unsupported by any evidence. Raudebaugh, 135 Idaho
at 605, 21 P.3d at 927. Indeed, discovery may not be used to engage in fishing expeditions, as
post-conviction actions provide a forum for known grievances, not an opportunity to search for
them. Murphy, 143 Idaho at 148, 139 P.3d at 750. Accordingly, before any post-conviction
petitioner will be permitted to conduct discovery, he must identify the specific subject matter(s)
where discovery is requested and why discovery as to the matter(s) is necessary to his petition.
State v. Dunlap, 155 Idaho 345, 390, 313 P.3d 1, 46 (2013).
Bakke contends he needed his phone and rental history records to provide the factual
support for his claims of ineffective assistance of trial counsel; thus, the records were necessary to
protect his right to assistance of counsel. Although the right to assistance of counsel is a substantial
right, a petitioner is not entitled to discovery simply by asserting that it would aid his ineffective
assistance of counsel claim; as with all grounds for post-conviction relief, the discovery must be
necessary to protect his right to assistance of counsel. Leytham v. State, 160 Idaho 764, 768, 379
P.3d 354, 358 (Ct. App. 2016) (“While the right to assistance of counsel is a substantial right,
discovery was not necessary to protect that right in this case.”). Thus, the threshold issue is
whether discovery of Bakke’s phone and rental history records was necessary to protect Bakke’s
right to assistance of trial counsel.
In support of his argument that his phone and rental history records were necessary to
protect his right to assistance of counsel, Bakke relies on the decisions in Baldwin v. State, 145
Idaho 148, 177 P.3d 362 (2008) and Murphy. In Baldwin, Baldwin and officers had significantly
different descriptions of the course of events leading up to Baldwin’s charge of, and ultimate
conviction for, possession of a controlled substance. Baldwin, 145 Idaho at 151, 177 P.3d at 365.
Baldwin filed a petition for post-conviction relief alleging various claims of ineffective assistance
of counsel, including a claim that trial counsel acted unreasonably in failing to file a motion to
suppress. Id. Through appointed counsel, Baldwin filed a discovery motion requesting, in part,
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an officer’s audio tape of his interaction with Baldwin, which Baldwin believed would support his
version of events, and as a result, provide factual support for his claim of ineffective assistance of
counsel. Id. at 154-55, 177 P.3d at 368-69. Baldwin argued he needed a discovery order because
absent such order, he had no independent means of obtaining the officer’s audio recording. Id. at
154, 157, 177 P.3d at 368, 371. The district court never ruled on Baldwin’s discovery motion and
summarily dismissed Baldwin’s petition for post-conviction relief. Id. at 152, 177 P.3d at 366.
Baldwin appealed. Id.On appeal, Baldwin alleged, among other claims, that the district court abused its discretion
by failing to rule on, and grant, Baldwin’s discovery motion. Id. at 157, 177 P.3d at 371. The
Supreme Court reversed the district court’s summary dismissal of the petition and remanded the
case, holding there was a genuine issue of material fact regarding Baldwin’s claim of ineffective
assistance of counsel for failing to file a motion to suppress. Id. The Court did not engage in any
substantive analysis of Baldwin’s discovery claim and provided only the following conclusion:
As guidance on remand, it does appear that [Baldwin] should be provided the
opportunity to learn whether an audiotape does exist and what Officer Johnson may
have to say regarding the interaction with Baldwin. This opportunity need not take
the form demanded by Baldwin but, rather, should be determined in the sound
discretion of the trial court.
Id.In contrast, in Murphy this Court conducted an analysis of whether civil discovery was
necessary to protect Murphy’s substantial rights. There, in the underlying criminal case, Murphy
was charged with the first degree murder of her husband. Murphy, 143 Idaho at 143, 139 P.3d at
745. An autopsy report prepared three days after Murphy’s death stated the cause of death was
indeterminate, indicating that suicide was a possibility. Id. at 144, 448, 139 P.3d at 746, 750. The
pathologist who prepared the report testified at the grand jury proceeding and his testimony was
consistent with his autopsy report that the manner of death was indeterminate. Id. at 143, 139 P.3d
at 745. Murphy maintained her innocence throughout the criminal proceedings, claiming that her
husband died by suicide. Id. On the eve of trial, more than four years after Murphy’s husband’s
death, the pathologist changed his opinion about the manner of death to “homicide” after
examining the gun involved and the gunshot residue report for the first time. Id. at 144, 139 P.3d
at 746. The pathologist testified that this conclusion was based on a number of factors, including
the angle of the wound and evidence that Murphy’s husband was unconscious, despite these facts
remaining unchanged in the four-year period since he rendered his autopsy report and gave his
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grand jury testimony. Id. at 149, 139 P.3d at 751. Defense counsel moved for a mistrial, but did
not request a continuance based on this change of position. Id. at 144, 139 P.3d at 746. At the
conclusion of the trial, the jury found Murphy guilty. Id.
Murphy subsequently filed a pro se application for post-conviction relief, raising numerous
grounds for relief, including an ineffective assistance of counsel claim related to the pathologist’s
testimony. Id. Murphy was appointed post-conviction counsel who filed a motion for funds to
retain an independent forensic pathologist to fully review the reports in the underlying criminal
matter including, but not limited to, the autopsy report, gunshot residue report, pathology reports,
and all other relevant evidence and related trial testimony. Id. The district court denied Murphy’s
request for funds to retain a pathologist and granted the State’s motion for summary dismissal. Id.
Murphy appealed, contending, in part, that the district court erred by denying her funding request.
Id. This Court held the record raised serious questions on the reliability of the pathologist’s
opinion concerning the manner of Murphy’s husband’s death and that those questions “can only
be addressed by an expert interpreting all the relevant facts and reports produced on this question.”
Id. at 149, 139 P.3d at 751. Thus, the record established that retaining an expert pathologist was
necessary to protect Murphy’s right to assistance of counsel. Id. at 147, 139 P.3d at 750.
Discovery of Bakke’s phone records was not necessary to protect Bakke’s right to
assistance of counsel. First, unlike Baldwin and Murphy, there was evidence of the phone contact
between Bakke and Avis admitted through State’s Trial Exhibit 2. The district court took judicial
notice of the exhibits admitted at the underlying criminal trial, one of which was State’s Exhibit 2,
the contact log between Avis and Bakke. That exhibit is not in the appellate record. It is the
responsibility of the appellant to provide a sufficient record to substantiate his or her claims on
appeal. State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985). Portions of the
record missing on appeal are presumed to support the actions of the district court. State v. Repici,
122 Idaho 538, 541, 835 P.2d 1349, 1352 (Ct. App. 1992). As such, the district court’s finding
that State’s Trial Exhibit 2 was a log of contacts between Bakke and Avis is uncontested and
supports the district court’s conclusion that discovery was not necessary to protect Bakke’s
substantial right to assistance of counsel.
Second, Bakke does not challenge the district court’s factual finding that while the phone
records may show that Bakke placed or received phone calls from Avis or his bank during the time
period at issue, the records would not show the substance of those calls. Bakke similarly does not
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challenge the district court’s finding that “it would be truly speculative to conclude that the number
of phone contacts [as opposed to the content of those contacts] would change the outcome of
Petitioner’s case.” As such, the phone records were not necessary to protect Bakke’s substantial
right to assistance of counsel.4
Similarly, discovery of Bakke’s rental history records with Avis are not necessary to
protect his right to assistance of counsel. While Bakke asserts that his rental history records are
necessary “to show that he had a course of dealing with the rental company of extending his rentals
and squaring up with the company afterward,” he cannot show those records are relevant to his
underlying criminal conviction. The issue in Bakke’s underlying criminal case was whether, in
that particular instance, Bakke retained a rental vehicle without Avis’s permission or payment.
Bakke does not challenge the district court’s factual finding that the evidence admitted in both the
underlying criminal case and the post-conviction case “overwhelmingly disprove[d] the existence
of permission from the rental company” for Bakke to retain the vehicle. Thus, Avis did not give
Bakke permission to retain the vehicle and, as such, any documentation showing that for prior
rentals Bakke returned and paid for the vehicles would not be relevant. Consequently, Bakke’s
rental history records were not necessary to protect Bakke’s substantial right to assistance of
counsel.
Bakke’s argument that the district court erred in dismissing his claims of ineffective
assistance of counsel, and subsequently, the petition for post-conviction relief, rests solely on his
assertion that the court erred in failing to grant discovery for Bakke’s phone and rental history
records. Because neither Bakke’s phone nor rental history records were necessary to protect
Bakke’s right to assistance of counsel, the district court did not abuse its discretion in denying
Bakke’s discovery motion for these records. Accordingly, the district court did not err in
dismissing the claims of ineffective assistance of counsel or the petition.
4
Although Bakke argued the phone records were necessary to demonstrate evidence of an
increase in Bakke’s credit line, the phone records were cumulative as to this claim. The district
court granted Bakke discovery of his bank records, which were admitted at the evidentiary hearing
and demonstrated an increase in Bakke’s credit line.
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IV.
CONCLUSION
The district court did not abuse its discretion by denying Bakke’s discovery request for his
phone and rental history records because neither affected Bakke’s substantial right to assistance of
counsel. Accordingly, the district court did not err in dismissing his claims of ineffective
assistance of counsel in his petition for post-conviction relief, and the judgment dismissing
Bakke’s petition is affirmed.
Judge GRATTON and Judge BRAILSFORD CONCUR.
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