Hayes v. State ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49951
MICHAEL THERON HAYES, )
) Filed: June 28, 2023
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) THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
County. Hon. Samuel A. Hoagland, District Judge.
Order striking exhibits and portions of the affidavit, affirmed; judgment summarily
dismissing petition for post-conviction relief, affirmed.
Ferguson Durham, PLLC; Craig H. Durham, Boise, for appellant.
Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney
General, Boise, for respondent.
________________________________________________
GRATTON, Judge
Michael Theron Hayes was convicted of battery on a correctional officer. Hayes filed a
petition for post-conviction relief claiming prosecutorial misconduct and ineffective assistance of
trial counsel for failing to provide evidence and call witnesses to establish that there was blood in
his urine. The State filed a motion to strike exhibits and portions of Hayes’ affidavit. The district
court partially granted the State’s motion to strike and ultimately granted the State’s motion for
summary dismissal. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Hayes was charged with battery on a correctional officer. Idaho Code § 18-915. During
the jury trial, three correctional officers testified that during an infraction hearing Hayes became
aggressive and non-compliant, kicking one of the officers in the shin and grabbing another officer’s
groin. Hayes testified he was the victim of the altercation, he had been battered by the correctional
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officers without provocation, and he did not batter the correctional officers in return. Hayes
testified he sustained injuries to his back, shoulder, wrists, and hip area, causing him to urinate
blood for over a month. He also testified he provided urine samples containing blood for analysis.
Nurse Rich, a registered nurse contracted to work at the prison, testified he examined Hayes within
a half hour of the altercation and was unable to see or feel any injury on Hayes’ back, but noticed
slight lacerations on Hayes’ wrists from the handcuffs he wore during the infraction hearing. The
nurse testified that he never conducted an analysis of Hayes’ urine.
Hayes filed a request for subpoenas for two witnesses, Dr. Dawson and Nurse Kaae, to
provide testimony that Hayes was injured by the correctional officers’ use of force, specifically
that there was blood in Hayes’ urine following the altercation. The district court denied the request
for subpoenas, finding the testimony would not be relevant to the question of whether Hayes
committed battery upon the two correctional officers and that his motion was untimely. The jury
convicted Hayes of one count of battery, the battery committed by kicking an officer’s shin. The
Idaho Supreme Court affirmed the judgment of conviction. State v. Hayes, 166 Idaho 646, 652,
462 P.3d 1110, 1116 (2020).
Hayes filed a pro se petition for post-conviction relief claiming prosecutorial misconduct
and ineffective assistance of trial counsel. Hayes claimed his attorney was ineffective for not
introducing accurate and corroborating medical evidence related to Hayes’ injuries, particularly
that there was blood in his urine following the altercation. Hayes also claimed the prosecuting
attorney committed misconduct when she presented Nurse Rich’s inaccurate testimony at trial
because the prosecuting attorney was aware that the medical evidence supported Hayes’ claims.
Hayes attached numerous exhibits to his petition. Hayes filed a separate affidavit in support of his
petition. The district court appointed counsel to represent Hayes. The State filed an answer,
motion for summary disposition, and an objection and motion to strike exhibits and portions of
Hayes’ affidavit. The district court granted, in part, the State’s motion to strike and granted the
State’s motion for summary disposition. The district court concluded Hayes had not alleged or
supported a prima facie case of either prosecutorial misconduct or ineffective assistance of
counsel. Hayes timely appeals.
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II.
STANDARD OF REVIEW
A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C. § 19-
4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 104
Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323,
1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove by a
preponderance of evidence the allegations upon which the request for post-conviction relief is
based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for
post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State, 141
Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much 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). Rather, a petition for post-conviction relief 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 with the petition. I.C. § 19-4903. In other words, the petition must present or be
accompanied by admissible evidence supporting its allegations, or the petition will be subject to
dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).
Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction
relief, either pursuant to a motion by 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. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.
App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App. 1986).
Moreover, the district court, as the trier of fact, is not constrained to draw inferences in favor of
the party opposing the motion for summary disposition; rather, the district court is free to arrive at
the most probable inferences to be drawn from uncontroverted evidence. 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. Id.3
Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven by
the record of the criminal proceedings, if the petitioner has not presented evidence making a prima
facie case as to each essential element of the claims, or if the petitioner’s allegations do not justify
relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); DeRushé
v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim
for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the
petitioner is not entitled to relief even with all disputed facts construed in the petitioner’s favor.
For this reason, summary dismissal of a post-conviction petition may be appropriate even when
the state does not controvert the petitioner’s evidence. See Roman, 125 Idaho at 647, 873 P.2d at
901.
Conversely, if the petition, affidavits, and other evidence supporting the petition allege
facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be
summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004);
Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of
material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues.
Goodwin, 138 Idaho at 272, 61 P.3d at 629.
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, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free
review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
III.
ANALYSIS
Hayes argues the district court erred by striking portions of his affidavit and exhibits.
Hayes contends he established a genuine issue of material fact related to his claims of prosecutorial
misconduct and ineffective assistance of trial counsel, and the district court erred by summarily
dismissing his petition.
A. Striking Exhibits
Hayes asserts the district court erred in striking several exhibits that were attached to his
petition: (1) a lab report purporting to show Hayes had blood in his urine; (2) a letter that tended
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to show that trial counsel had Hayes’ medical records before trial; and (3) Hayes’ calendar that
indicated when he had been treated medically after the altercation. Hayes claims the rules of
evidence are relaxed in a post-conviction case because the legislature intended the Uniform Post-
Conviction Procedure Act (UPCPA) to be a simple, inexpensive, and speedy procedure that allows
district courts to do substantial justice. Hayes concedes appellate courts have interpreted I.C. § 19-
4903 as placing a burden on petitioners to support their claims with admissible evidence but
maintains the term “admissible” should be construed in light of the flexible structure and purpose
of the UPCPA. Hayes argues if the evidence supporting the petition could be presented in an
admissible form at an evidentiary hearing, the district court should consider it when deciding
whether a disputed issue of fact remains to be tried. Hayes relies on I.C. § 19-4906 to support his
assertion that the UPCPA instructs district courts when assessing whether to summarily dismiss a
petition to take account of substance, regardless of defects of form.1 Hayes contends the district
court departed from this intent and imposed an overly formalistic interpretation to strike various
exhibits. The State reasons this argument fails because “[t]he applicant for post-conviction relief
is required to make a prima facie case by presenting admissible evidence on each essential element
of his or her claims.” DeRushe, 146 Idaho at 601, 200 P.3d at 1150. We agree. Hayes is required
to provide admissible evidence in support of his petition. The district court correctly made this
determination before considering the State’s motion for summary dismissal.
Alternatively, Hayes argues the exhibits were admissible. An affidavit used to support or
oppose a motion must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated.
I.R.C.P. 56(c)(4). A trial court has broad discretion, within the bounds set by the Idaho Rules of
Evidence, with respect to questions regarding the admissibility of evidence. State v. Watkins, 148
Idaho 418, 421, 224 P.3d 485, 488 (2009). A trial court’s determination that evidence is supported
by a proper foundation is reviewed for an abuse of discretion. State v. Gilpin, 132 Idaho 643, 646,
977 P.2d 905, 908 (Ct. App. 1999). When a trial court’s discretionary decision is reviewed on
appeal, the appellate court conducts a multi-tiered inquiry to determine whether the trial court:
(1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such
1
Hayes confuses this proposition. A trial court should consider form over substance when
construing the intent and assertion of claims in a petition for post-conviction relief. As to evidence
to support such broadly construed claims, it must be admissible.
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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. State v. Herrera, 164 Idaho 261, 270, 429
P.3d 149, 158 (2018).
Hearsay is defined as a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted. I.R.E. 801(c);
State v. Gomez, 126 Idaho 700, 704, 889 P.2d 729, 733 (Ct. App. 1994). Hearsay is inadmissible
unless otherwise provided by an exception in the Idaho Rules of Evidence or other rules of the
Idaho Supreme Court. I.R.E. 802. A trial court’s conclusion that an out-of-court statement
qualifies as hearsay under I.R.E. 801(c), when offered or admitted for the truth of the matter
asserted, is reviewed de novo. State v. Roman-Lopez, 171 Idaho 585, 591-92, 524 P.3d 864, 870-
71 (2023). If, however, an out-of-court statement is offered or admitted for a purpose other than
its truth, then the trial court’s decision whether to admit the statement is reviewed for an abuse of
discretion. Id.Hayes argues the district court erred in striking the lab report because it was not hearsay
and it should be admissible under the hearsay exception for medical or dental tests and test results
that are offered for diagnostic or treatment purposes, under I.R.E. 803(23).2 Hayes contends the
district court incorrectly found Hayes did not authenticate the lab report. Hayes maintains the
document was self-authenticating so long as it identified the person or entity who conducted or
interpreted the test, the name of the patient, the date of the test, and the opposing side was given
notice. The district court determined that the document did not have distinctive characteristics and
found there is no evidence of who took the sample, who ran the test, and who prepared the
2
Idaho Rule of Evidence 803(23) reads:
Medical or Dental Tests and Test Results for Diagnostic or Treatment
Purposes. A written, graphic, numerical, symbolic or pictorial representation of the
results of a medical or dental test performed for purposes of diagnosis or treatment
for which foundation has been established pursuant to Rule 904, unless the
opponent shows that the sources of information or other circumstances indicate a
lack of trustworthiness. This exception shall not apply to:
(a) psychological tests;
(b) reports generated pursuant to I.R.C.P. 35(a);
(c) medical or dental tests performed in anticipation of or for purposes of litigation;
or
(d) public records specifically excluded from the Rule 803(8) exception to the
hearsay rule.
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document. The district court found Hayes cannot provide personal knowledge or foundation as to
these facts. Further, the district court concluded the lab test is not a business, certified, or public
record, and does not meet the hearsay exception for statements made for medical diagnosis or
treatment, thus there is no indication that the exhibit carries the requisite trustworthiness for
admissibility. The district court also found the lab report is not relevant because absent expert
testimony explaining what the test result shows, the document does not suggest or show that Hayes
was beaten by correctional officers and sustained injuries that caused him to urinate blood twenty
days after the altercation. We agree. The lab report does not fall under a hearsay exception, and
it is being offered to prove the truth of the matter asserted, that Hayes had blood in his urine. Even
if the lab report did fall under I.R.E. 803(23), Hayes has failed to establish a foundation to prove
the trustworthiness of this document. Further, Hayes has not provided testimony explaining what
is shown by the test results or its relation to his claims.
Hayes asserts the district court erred in striking the letter from the legal assistant at the
Idaho Department of Correction to Hayes stating that the assistant received his disclosure form
and his trial counsel was sent a copy of his relevant medical records. Hayes concedes this was
hearsay. However, Hayes maintains the court erred in not considering this letter under the
substance over form rule and that the court should have granted an evidentiary hearing where he
could subpoena testimony on whether counsel received these records. The district court found that
Hayes could testify about receiving the letter but the statements within the letter are hearsay. We
agree. It is not enough to allege that a witness would have testified to certain events, or would
have rebutted certain statements made at trial without providing, through affidavit, nonhearsay
evidence of the substance of the witness’s testimony. Thomas v. State, 145 Idaho 765, 770, 185
P.3d 921, 926 (Ct. App. 2008). Here, Hayes has provided hearsay evidence because it is being
offered to prove that his trial counsel received a copy of his medical records to support Hayes’
claim of ineffective assistance of trial counsel. Hayes has provided only hearsay evidence to show
how his trial counsel or the custodian of the Idaho Department of Correction records would testify.
Further, as discussed above, a petition must be supported by admissible evidence and Hayes
incorrectly relies upon the substance over form rule. Thus, the district court correctly struck the
letter.
Hayes asserts the district court erred in excluding the pages from his medical calendar as
self-serving and conclusory and not based on personal knowledge. Hayes maintains he sent these
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documents to the State in response to a request for discovery while he was representing himself.
He claims the calendar was his own creation and based on his personal knowledge. Hayes argues
that whether this was self-serving and conclusory goes to the weight to be given those exhibits,
not their admissibility. Hayes avers “[t]he State was free to suggest at an evidentiary hearing that
Hayes lied about when he created the exhibit or something along those lines. But that is not a
reason to exclude it from considering whether to grant summary disposition.” The district court
found that the medical calendar plainly appears to have been created by Hayes, but he failed to set
forth any personal knowledge as to the creation and makes bare and conclusory claims that the
calendar definitively shows the dates of the five urinalysis tests. The district court determined the
medical calendar only shows Hayes’ belief as to when certain events took place, and absent
corroborating evidence, it is not trustworthy or demonstrative that the listed events even occurred.
The district court concluded that if Hayes provided foundation for the calendar, it is still not
relevant and carries little probative value. We agree. The district court did not err in determining
that Hayes could not provide foundation for the medical calendar. Further, the medical calendar
does not clearly support Hayes’ claims because Hayes has not provided corroborating evidence to
show the urinalysis tests occurred or what their results were. As a result, the district court correctly
struck the exhibit.
B. Striking Paragraphs in Affidavit
The district court struck the reference to the lab urinalysis test report from paragraph 6
which stated there was a moderate amount of blood in Hayes’ urine. Hayes contends that the
district court erred for the same reason that the court erred in excluding the lab report as an exhibit.
Hayes argues this is his testimony and it is based on his personal knowledge about whether there
was blood in his urine and how many urinalysis tests he took. As noted, the district court correctly
found that the lab report is inadmissible because it is hearsay, fails to meet a hearsay exception, is
not relevant, and Hayes failed to lay a proper foundation. For the same reasons the district court
struck the exhibit, the district court correctly struck Hayes’ interpretation of the exhibit from his
affidavit.
The district court struck paragraph 8 in which Hayes states that the prosecutor’s office had
the relevant medical calendars and had full and complete knowledge of the five urinalysis tests.
Hayes argues the district court erred because this paragraph is simply based on Hayes’ personal
knowledge that he provided the prosecuting attorney’s office with that information and the
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allegation of the prosecutor’s full knowledge is an inference. The district court found Hayes can
testify he sent the calendars, but his statement that the prosecuting attorney had full and complete
knowledge is speculative, conclusory, and lacks personal knowledge. We agree. Hayes does not
have personal knowledge of what information the prosecuting attorney had, but merely speculates
as to what information could have been gained from the medical calendars Hayes provided.
The district court struck paragraphs 18 and 19 in which Hayes states his trial counsel told
him he disclosed Hayes’ medical records to the prosecuting attorney and he would send Hayes
copies of the records. Hayes insists these statements were offered at least in part not for their truth
but as probative of whether trial counsel had the records. Hayes argues whether trial counsel did
or did not send the records to the prosecuting attorney would be immaterial. The district court
determined these statements were inadmissible hearsay. We agree. The district court did not err
in determining these statements were inadmissible and were being offered for the truth of the
matter asserted, either trial counsel had the records as relevant to Hayes’ claim of ineffective
assistance of trial counsel or to Hayes’ claim that the prosecuting attorney had knowledge of the
blood in Hayes’ urine.
C. Ineffective Assistance of Trial Counsel
A claim of ineffective assistance of counsel may properly be brought under the UPCPA.
Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App. 2009). To prevail on an
ineffective assistance of counsel claim, the petitioner must show that the attorney’s performance
was deficient, and that the petitioner was prejudiced by the deficiency. Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007).
To establish a deficiency, the petitioner 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); Knutsen v. State, 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct.
App. 2007). To establish prejudice, the petitioner 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; Knutsen, 144 Idaho at 442, 163 P.3d at 231. 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. Gonzales v. State, 151
Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
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Hayes asserts the district court erred in summarily dismissing his claim of ineffective
assistance of trial counsel because Hayes alleged sufficient facts to have an opportunity to prove
his claim at an evidentiary hearing. While he was representing himself, Hayes filed a motion
seeking leave to subpoena both Dr. Dawson and Nurse Kaae. He stated Dr. Dawson ordered four
different urinalysis tests of his urine because there was so much blood. He claimed Dr. Dawson
also ordered an ultrasound to rule out the blood being caused by another reason. Hayes also
claimed Nurse Kaae would testify that he saw blood in Hayes’ urine. This motion was denied by
the district court concluding the proposed evidence was irrelevant and the motion was untimely.
The Idaho Supreme Court affirmed finding that the motion was untimely, but did not reach the
issue of whether this evidence would have been relevant. Hayes, 166 Idaho at 652, 462 P.3d at
1116. Once appointed, trial counsel did not subpoena these witnesses against Hayes’ request.
Hayes claims this evidence was relevant and trial counsel was ineffective in failing to develop the
medical evidence to support Hayes’ defense. Hayes further asserts it was objectively unreasonable
for counsel to subpoena his medical records but never use them or attempt to develop other medical
evidence. Hayes asserts any reasonable defense attorney facing these allegations, who knew that
the medical records existed and that associated testimony would support his client’s defense,
would present the evidence at trial. Hayes insists there cannot be any reasonable strategic basis
for counsel’s failure because this evidence would be consistent with the defense that trial counsel
pursued. Hayes contends he was prejudiced by this failure because the case was a “he said, she
said” type case and the jury, which acquitted him of one count of battery, would have taken little
to be swayed on the other count. Hayes argues there is at least a reasonable probability that, but
for counsel’s errors, the result of the trial would have been different.
The district court found Hayes did not support his theory of being the victim of a battery
by law enforcement with more than bare and conclusory claims. We agree. While the testimony
of Dr. Dawson and Nurse Kaae may have been relevant at trial, Hayes failed to provide affidavits
in this post-conviction case from either Dr. Dawson or Nurse Kaae, or any witness stating that they
would testify that Hayes had urine tests, there was blood in his urine, and he was a victim of
battery. It is not enough to allege that a witness would have testified to certain events, or would
have rebutted certain statements made at trial without providing, through affidavit, nonhearsay
evidence of the substance of the witness’s testimony. Thomas, 145 Idaho at 770, 185 P.3d at 926.
Trial counsel’s choice of witnesses falls within the area of tactical, or strategic, decisions, as does
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counsel’s presentation of medical evidence. Giles v. State, 125 Idaho 921, 924, 877 P.2d 365, 368
(1994). Here, counsel’s choice of witnesses is not based on inadequate preparation, ignorance of
relevant law, or other shortcomings capable of objective evaluation. As a result, the district court
did not err in summarily dismissing Hayes’ claim of ineffective assistance of counsel.
D. Prosecutorial Misconduct
In order to present a prima facie case of prosecutorial misconduct by the presentation of
false evidence and establish a Napue3 violation a defendant must show: (1) the testimony was
false; (2) the prosecutor should have known it was false; and (3) the testimony was material. State
v. Lankford, 162 Idaho 477, 503, 399 P.3d 804, 830 (2017). Testimony is material when there is
any reasonable likelihood that the false testimony could have affected the jury’s judgment. Id.Hayes asserts the district court erred by summarily dismissing his claim of prosecutorial
misconduct because he demonstrated a reasonable likelihood that Nurse Rich’s testimony could
have affected the jury’s verdict. Hayes maintains the record shows that the prosecutor knew prison
medical professionals had found blood in Hayes’ urine, yet the prosecutor chose to present Nurse
Rich’s false testimony to give the opposite impression to the jury. Hayes contends he repeatedly
alleged and supported with records that urinalysis tests were completed and that blood was found.
Hayes claims he disclosed his medical calendar which showed various times of urinalysis and
other tests, including notes of when blood was found in his urine. Hayes asserts trial counsel also
sent his medical records to the prosecuting attorney. Hayes insists any reasonable prosecutor
would investigate the basis for a claim that a defendant was battered by officers, including seeking
medical records to confirm or dispel this theory.
The testimony presented by Nurse Rich, the State’s witness, was that he was working at
the prison for a health care contractor the day of the battery and his duties included dispensing
medications and responding to medical emergencies to assess a patient and determine if a doctor
was needed. He conducted a medical assessment on Hayes following the battery and did not see
any redness, bruising, or sensitivity to touch. He testified he did not personally take a urine sample
and he knew of no test where blood was found. On cross-examination, he testified that he did not
conduct a urinalysis test and did not remember hearing of one being done.
3
Napue v. Illinois, 360 U.S. 264 (1959).
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The district court found that Hayes failed to submit any evidence showing Nurse Rich’s
testimony was false or misleading. The district court further found that even if the testimony was
somehow false, Hayes failed to demonstrate that any alleged perjury affected the outcome of the
trial. The district court determined Hayes was not able to show the prosecutor knowingly elicited
testimony that was inaccurate and misleading.
As set forth above, Hayes only relies on inadmissible evidence to support his argument.
Nurse Rich’s testimony establishes what he observed when assessing Hayes directly following the
altercation. Hayes’ trial counsel clarified Nurse Rich’s testimony on cross-examination to show
that he did not know definitively whether urine samples were taken or blood was found. While
the testimony of this witness may have been material, Hayes has not established that the testimony
was false or that the prosecuting attorney had reason to believe it was false. We affirm the district
court’s summary dismissal of Hayes’ prosecutorial misconduct claim.
IV.
CONCLUSION
The district court did not err in striking the paragraphs from Hayes’ affidavit or the
exhibits. The district court did not err in summarily dismissing Hayes’ petition for post-conviction
relief. As a result, we affirm the district court’s judgment summarily dismissing Hayes’ petition
for post-conviction relief.
Judge HUSKEY and Judge Pro Tem MELANSON CONCUR.
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