Stuart v. State , 118 Idaho 865 ( 1990 )

ON DENIAL OF PETITION FOR REHEARING

1990 Opinion No. 35, issued March 12, 1990, is hereby withdrawn and this opinion is substituted therefor.

BAKES, Chief Justice.

The appellant, Gene Francis Stuart, appeals the district court’s denial of his petition for post conviction relief. Stuart was convicted of first degree murder by torture of three-year-old Robert Miller, committed on September 19, 1981. He was sentenced to death. His conviction and sentence were affirmed by this Court on direct appeal. See State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985). In June, 1986, Stuart filed a petition for post conviction relief with the district court. The petition claimed twelve separate grounds for relief.

In December of 1986, the district court issued an opinion rejecting the petition and gave Stuart notice that the court intended to dismiss the petition pursuant to I.C. § 19-4906. The opinion rejected the vast bulk of Stuart’s grounds for relief because those issues had been decided on direct appeal, no petition for rehearing had been filed, and thus they were res judicata. The district court went on to find that three other grounds, while not res judicata, did not raise any legal issue or questions of fact which would entitle Stuart to either a hearing or any legal relief.

Stuart filed a reply to the district court’s notice of intent to dismiss which included the affidavits of his counsel, a hospital employee David Simmons, Lynn Matteoni and her daughter Katrina. Each of these four affidavits alleged factual matters relating to evidence which had not been previously presented and which Stuart felt was sufficient to warrant an evidentiary hearing.

The affidavit of David Simmons, an acquaintance of Stuart, related that Stuart had sought advice from him concerning the discipline and upbringing of the victim. The trial court concluded that Simmons’ lay opinion given to Stuart, whom he knew only casually, did not constitute newly discovered evidence such as would require a hearing.

The other affidavits were related. The affidavits of Ms. Lynn Matteoni and her daughter Katrina purported to contradict testimony given at trial by the State’s witnesses which had portrayed Stuart as a person who abused and misused women and children. The Matteonis’ affidavits alleged that their experience with Stuart indicated that he was a gentle, loving and caring person. Ms. Matteoni’s affidavit declared that in 1975-76, while she was separated from her husband, she spent considerable time with Stuart in an informal relationship. She stated that her two young daughters also spent time with Stuart and that they were extremely fond of Stuart. The affidavit further stated that Stuart cared for both of the children while Ms. Matteoni worked and that he was against spanking children for discipline. She further states that the “allegations of abuse made by Vicki Nelson [against Stuart] have been related to me in part by Gene’s attorney. From my experience with Gene Stuart, he showed no signs whatsoever of any type of abusive behavior toward me or my children, very much in contrast to the testimony of Vicki Nelson as the same was related to me.” Finally, Ms. Matteoni explains that she was unaware of the charges and trial and was therefore unable to come forward and testify at that time. Ms. Matteoni’s daughter Katrina’s affidavit stated that she was 5 years of age when Stuart was dating her mother. She stated that he took care of them, did not punish them and that she was willing to testify in greater detail to her recollections of Stuart.

Stuart’s attorney filed an affidavit which attempted to set out a foundation as to the circumstances which precluded the Matteonis from testifying during the original proceeding. The affidavit indicated that (1) Stuart was denied sufficient investigative assistance prior to trial, and (2) due to the insufficient assistance he was unable to contact the Matteonis until a considerable time after the trial. The attorney’s affidavit described his attempts to contact Lynn Matteoni which were “all to no avail.” The affidavit goes on to point out that he finally was put in contact with Ms. Matteoni by her mother in October of 1986 and that he was able to contact Ms. Matteoni in January of 1987. Additionally, Stuart’s attorney’s affidavit set forth certain background facts regarding Stuart’s allegation that certain plea bargaining negotiations resulted in the sentencing being arbitrary.

After considering Stuart’s response to the court’s December 23, 1986, order, the district court issued a second opinion in May of 1987. That opinion again reviewed two of Stuart’s grounds for post conviction relief covered in the first opinion and additionally dealt with the claim of newly discovered evidence set out in the affidavits. In this second opinion, the district court held (1) that the use of preliminary hearing testimony at the sentencing was lawful and that, therefore, the petitioner’s allegation was legally insufficient and required no hearing; (2) that Stuart’s sentence was not imposed in an arbitrary manner; and (3) that the allegation that newly discovered evidence was proffered by the affidavits did not meet the standard set in Drapeau v. State, 103 Idaho 612, 651 P.2d 546 (Ct.App.1982), in that it failed to raise a substantial question of fact which would probably change the conviction or sentence, thus requiring an evidentiary hearing.

Stuart appealed to this Court, and on March 10, 1989, we issued our opinion affirming the district court’s denial of Stuart’s petition for post conviction relief. Stuart petitioned for rehearing, which petition was granted on June 12, 1989. After additional briefing and reargument, we conclude that the district court did not err in denying Stuart’s petition for post conviction relief, and affirm the district court’s judgment dismissing Stuart’s petition for post conviction relief. Our March 10,1989, opinion is withdrawn, and this opinion is substituted therefor.

I

In this appeal from the trial court’s dismissal of the petition for post conviction relief, Stuart argues that the trial court erred in summarily dismissing his petition without conducting an evidentiary hearing on the issues. The district court’s decision to dismiss Stuart’s petition without an evidentiary hearing was based on I.C. § 19-4906(b), which reads:

19-4906. Pleadings and judgment on pleadings.— ...

(b) When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to post-conviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for so doing. The applicant shall be given an opportunity to reply within 20 days to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application, or direct that the proceedings otherwise continue. Disposition on the pleadings and record is not proper if there exists a material issue of fact.

This Court has held that it is appropriate to dismiss an application for post conviction relief without affording an evidentiary hearing, under this statute, if the allegations, though uncontroverted, do not entitle the applicant to relief. Clark v. State, 92 Idaho 827, 452 P.2d 54 (1969). In this case, the district court’s two memorandum decisions are complete and well reasoned. In the first opinion the district court correctly observed that substantially all of Stuart’s claims had been raised in the direct appeal, State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985), and thus were res judicata. Of those issues remaining, the trial court found that they were legally insufficient. Specifically regarding the claim of newly discovered evidence, the district court stated that “[cjonsidered as a whole, this new evidence does not raise material questions of fact, especially when viewed against the backdrop of the overwhelming evidence produced at trial. To be sure, this evidence would probably not have affected the conviction or the sentence.” We have reviewed the record to determine whether a genuine question of material fact existed and we conclude that the district court did not err in dismissing Stuart’s petition for post conviction relief. We review each of Stuart’s contentions separately below.

II

Stuart argues that three separate grounds existed for the district court to grant a hearing on his petition for post conviction relief. Those grounds are (A) the use of preliminary hearing testimony for purposes of sentencing; (B) Stuart’s claim that his rights were violated by plea bargaining negotiations; and (C) newly discovered evidence which was raised by the four affidavits submitted to the district court. In the rehearing granted by this Court on June 12, 1989, Stuart raises for the first time the issue of whether or not there was a proper weighing of the mitigating circumstances against each of the aggravating circumstances as required in our April 4, 1989, opinion in State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). We will deal with each of these in turn.

A.

Use of Preliminary Hearing Testimony

Stuart argues that the trial court erred by considering preliminary hearing testimony at the sentencing hearing. This issue was not raised by Stuart in his direct appeal, State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985). Nonetheless, Stuart alleges that the error is “fundamental” and can be raised at any time.

The trial court in this case considered testimony from the transcript of the preliminary hearing, relying upon our decision in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981), which upheld the use of preliminary hearing testimony in sentencing in a death penalty case. The Court in Osborn based its decision on our earlier decision in State v. Coutts, 101 Idaho 110, 113, 609 P.2d 642, 645 (1980), which held that “in the absence of an explicit request for the formal hearing contemplated by I.C. § 19-2516, the court may reach its sentencing decision by receiving the unsworn formal statements presented by both sides, together with the presentence report and arguments of the respective counsel.” The district court noted that Stuart did not make any explicit request for a formal hearing contemplated by I.C. § 19-2516, and that Stuart himself “intend[ed] to rely on trial testimony and argument, and was not demanding strict compliance with the live testimony formality of I.C. § 19-2516.” We conclude that under State v. Osborn and State v. Coutts, the use of a preliminary hearing transcript at the sentencing/ aggravation/mitigation hearing was not error where no formal sentencing hearing as provided in I.C. § 19-2516 had been requested.¹

B.

Plea Bargain

Next, Stuart has contended that the State offered not to recommend the death penalty if Stuart pleaded guilty to first degree murder by torture. Stuart rejected the offer. According to Stuart it follows that, by exercising his right to a jury trial, the death penalty was imposed arbitrarily, and in violation of the appellant’s rights under the fifth and fourteenth amendments to the United States Constitution, and art. I, §§ 7 and 13, of the Idaho Constitution. The district court rejected this contention, pointing out that it was petitioner who first offered to plead guilty to manslaughter which was rejected by the State. The State, on the other hand, offered to withdraw the request for a death penalty for a guilty plea to first degree murder, which was rejected by Stuart. Thus, while negotiations were entered into, no arrangement was ever made. The trial court noted the provision in I.C.R. 11(d) which expressly permits the prosecuting attorney and the defendant to “engage in discussions with a view toward reaching an agreement that upon the entering of a plea of guilty to a charged offense ... the prosecuting attorney will ... make a recommendation ... for a particular sentence____” The trial court further noted that I.C.R. 11(d)(2) and (4) make it clear that the sentencing court is not bound to accept any such sentencing arrangement. Thus, the court concluded that there was no merit to the petitioner’s contention that, by entering into negotiations, his constitutional right to a jury trial had been violated. We agree with the district court’s analysis of I.C.R. 11. Stuart cites no relevant contrary authority.

C.

New Evidence

Finally, Stuart argues that newly discovered evidence, not available to him at the time of trial, has created a material issue of fact which would affect the conviction and/or the sentence imposed on him. The new evidence was contained in the four affidavits, summarized above, which were submitted to the district court. In rejecting Stuart’s claim the district court relied on Drapeau v. State, 103 Idaho 612, 651 P.2d 546 (Ct.App.1982), stating the rule as follows: “In analyzing the evidence produced at trial with this new evidence, this court must determine whether a substantial question of fact exists which would probably change the conviction or sentence, thus, requiring an evidentiary hearing.” The district court’s opinion goes on to review the evidence produced at trial in detail and holds that “as a whole, this new evidence does not raise material questions of fact ... and would not have ... affected the conviction or sentence.” We agree.

The petitioner in a post conviction relief proceeding has the burden of proving, by a preponderance of the evidence, the allegations which he contends entitle him to relief. Estes v. State, 111 Idaho 430, 725 P.2d 135 (1986). In analyzing a petition for post conviction relief, to determine whether or not a hearing is required, the standard which a district court must follow was set out in Cooper v. State, 96 Idaho 542, 531 P.2d 1187 (1975):

When the alleged facts, even if true, would not entitle the applicant to relief, the trial court may dismiss the application without holding an evidentiary hearing. ... Allegations contained in the application are insufficient for the granting of relief when [1] they are clearly disproved by the record of the original proceedings, or [2] do not justify relief as a matter of law.

96 Idaho at 545, 531 P.2d at 1190 (emphasis added). The requirements for obtaining a new trial based upon newly discovered evidence were set out in State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976), where this Court, quoting from 2 C. Wright, Federal Practice & Procedure: Criminal § 557 (1969), stated:

Accordingly, rather exacting standards have been developed by the courts for motions of this kind. A motion based on newly discovered evidence must disclose (1) that the evidence is newly discovered and was unknown to the defendant at the time of trial; (2) that the evidence is material, not merely cumulative or impeaching; (3) that it will probably produce an acquittal; and (4) that failure to learn of the evidence was due to no lack of diligence on the part of the defendant.

97 Idaho at 691, 551 P.2d at 978. Based upon the foregoing standard, the district court did not err in denying Stuart’s claim to a hearing based upon his allegations of newly discovered evidence as set out in the affidavits.

1. The Simmons affidavit

The Simmons affidavit indicated that, before the killing of Robert Miller by Stuart, Simmons knew Stuart on a casual basis, beginning in 1981. They originally met in conjunction with Stuart’s body shop business in Orofino, Idaho, and later also visited in a local cafe. Simmons lived in Orofino, as did Stuart. Simmons was employed at the State Hospital North in Orofino.

Simmons stated in his affidavit that in late August or early September, 1981, less than one month before Stuart killed Robert Miller, and during one of their conversations at the Lumbermen’s Cafe, “Mr. Stuart requested my advice concerning discipline and upbringing of Robert Miller, a young child of Mr. Stuart’s girlfriend with whom he was residing.” Simmons further stated, “Stuart indicated he was having difficulty determining the extent to which he could discipline young Robert Miller without inflicting physical harm.” Simmons also indicated that Stuart had told him that he, Stuart, had been raised by an extremely strict and stern father who used alcohol and who inflicted physical abuse on Mr. Stuart and other members of his family-

The trial court did not err in refusing to grant a hearing based upon the Simmons affidavit. The affidavit on its face shows that the evidence contained therein was not newly discovered and that it could have been obtained before trial with reasonable diligence. Stuart himself was a party to these discussions, and presumably was well aware of what Simmons said and could have produced that evidence at trial had he thought it to be beneficial to his case. Simmons lived and worked in the same town, Orofino, as the defendant and his counsel and was easily accessible to them if they had felt his testimony would have been either admissible or beneficial. No showing was made in either the affidavit of Stuart’s counsel or in Simmons' affidavit why he was not contacted as a witness. Simmons states in his affidavit that he was aware that Stuart was charged with murder by torture, arising from the death of Robert Miller, and because no one requested his assistance as a witness he did not come forward. Aside from the serious problem of admissibility of the lay opinions and advice given by Simmons to Stuart, all of those conversations were known to Stuart since he personally participated in them, and the witness was at all times available to testify had the defendant and his counsel thought that the evidence might have been helpful. The trial court did not err in rejecting Stuart’s claim that the Simmons affidavit contained either newly discovered evidence or evidence which would probably have changed the conviction or sentence, thus requiring an evidentiary hearing. As this Court stated in State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976), quoting from 2 C. Wright, Federal Practice & Procedure: Criminal § 557 (1969):

Although defendants are tireless in seeking new trials on the ground of newly discovered evidence, motions on this ground are not favored by the courts and are viewed with great caution. No court wishes a defendant to remain in jail if he has discovered evidence showing that he is not guilty, but after a man has had his day in court, and has been fairly tried, there is a proper reluctance to give him a second trial.

97 Idaho at 691, 551 P.2d at 978. The matters contained in Simmons’ affidavit were not “unknown to the defendant at the time of trial,” and the trial court found that the evidence probably would not produce an acquittal or change the sentence. Accordingly, those allegations did not meet the test of this Court’s decision in Drapeau, and the trial court did not err in denying a hearing based upon the affidavit of David Simmons as supported by the affidavit of Stuart’s counsel.

2. The Matteoni affidavits

The other affidavits from Lynn Matteoni and her teenage daughter Katrina Matteoni, supplemented by the affidavit of Stuart’s counsel, were directed toward Stuart’s efforts at trial to show the jury that he was not an abuser of women or their children. These affidavits, executed in February of 1987, concerned a relationship between Lynn Matteoni, her daughter Katrina, and Stuart twelve years earlier during the period August, 1975, through December, 1976. Matteoni and Stuart had become acquainted at their common place of employment. At that time Lynn Matteoni and her children were separated from her husband, and her affidavit states that during 1975 and 1976 she regularly stayed either at Stuart’s home, or he stayed at her home. After they commenced living together, Matteoni ceased employment where Stuart was employed and became employed as a bartender which required her to work until late in the evening. Matteoni’s affidavit describes how Stuart would pick up her daughters at Matteoni’s parents’ home, who were taking care of them during the day, and take them home until Lynn Matteoni got off work. The older of the two children at the time was 5 or 6 years of age and the younger approximately 1 year old.² The affidavit of Lynn Matteoni stated that she and her children felt a very strong bond toward Stuart, and at no time did he give her any indication whatsoever that he would strike or harm anyone. She further stated that he opposed spanking children and that “he would not allow me to spank the children in his presence, and often indicated that if a parent had to resort to spanking he or she had lost control of the situation.” Matteoni stated in her affidavit that in December of 1976 they separated because Stuart wanted to marry her but she refused. She stated that even though she had been abused both physically and mentally by her former husband she was unable to bring herself to commence divorce proceedings against her husband. She also stated that she was fearful that her relationship with Stuart would change if they were to marry. She stated her reticence was not caused by any conduct on the part of Stuart.

In concluding that the Matteoni affidavits did not contain newly discovered evidence that would probably produce an acquittal or change the sentence, the trial court stated:

Initially, this court takes exception to petitioner’s conclusion that conviction resulted almost totally from the testimonial evidence of ex-wives and girlfriends. On the contrary, this court is of the opinion that most of the evidence at trial surrounded the actual tortuous acts committed by petitioner on the victim. A sufficient review of this factual evidence is provided in the Supreme Court’s opinion, Stuart, 110 Idaho at 165-167 [715 P.2d 833], and does not merit repetition here. Suffice it to say that the victim, a toddler, was subject to some very depraved, brutal and demoralizing physical and mental abuses. Most of the evidence at trial centered upon the nature of the victim’s many injuries and the manner in which they were inflicted. This evidence focused on the main issues of torture and causation.

The testimony of ex-wives and girlfriends was offered on the issue of intent. The new evidence is offered to contradict that testimony. The state correctly points out that the evidence at trial indicated that petitioner’s pattern of abuse only began after he had complete control and domination of the woman or children he was with. It is evident that although Matteonis lived with petitioner, it was not under the same conditions of control as testified to at trial. Indeed, evidence was presented to the trial and sentencing court that petitioner had at least one relationship with a woman who he did not abuse. The Matteonis’ affidavits even tend to support the state’s theory of petitioner’s actions.

As the trial court noted in its opinion, not all of the evidence at trial was that petitioner abused every woman with whom he came in contact. There was evidence of others that he did not, and the Matteonis’ experience with Stuart would only have been cumulative of this other evidence. As this Court held in State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976), evidence, even though newly discovered, which is merely cumulative or impeaching, is not sufficient to justify granting a new trial. The trial court’s conclusion that the information contained in the Matteoni affidavit, which occurred five to six years before the killing, did not meet the required standard of probably producing an acquittal, is not erroneous considering the entire record in this case.

Regarding the issue of whether the Matteoni affidavits constituted “newly discovered” evidence, the affidavit of Stuart’s counsel states that he was only able to locate Lynn Matteoni as the result of an October 22, 1986, letter “written to me by Pearl Everson, the mother of Lynn Matteoni, requesting that I contact her.” However, the affidavit of Lynn Matteoni states that during the time in 1975-76 when they periodically were living together at one another’s homes, Stuart “would pick up my girls after work at my parents’ home and take them [to his house] on a daily basis until I got off work.” The affidavit demonstrates that Stuart was acquainted with Matteoni’s parents and the location of their residence in the Seattle area. Nothing in the affidavits describes what, if any, efforts were made to contact Matteoni through her parents. The only effort described in Stuart’s counsel’s affidavit regarding the location of Lynn Matteoni was that he “personally went to an address believed by us to be the location of her [Matteoni’s] residence, however was unable to locate her. I also attempted telephone contact, all to no avail. After several futile efforts while in Seattle, I presumed that Lynn Matteoni either could not or did not wish to assist us in the defense of this case.” Given the fact that Stuart had been to Matteoni’s parents’ home on a regular basis, and given the fact that it was Matteoni’s mother, Pearl Everson, who ultimately contacted Stuart’s counsel, there is an inadequate showing that the failure to contact the Matteonis was not due to a lack of diligence on the part of the defendant in advising his counsel regarding the names and addresses of Matteoni’s parents, the Eversons. 2 C. Wright, Federal Practice & Procedure: Criminal § 557 (1969); State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976).

For the reasons set out above, the trial court did not err in denying Stuart a hearing on his claim of newly discovered evidence. As the trial court found, that evidence was cumulative of evidence at trial and would probably not have produced an acquittal or change in sentencing, and further, there was an inadequate showing of due diligence in locating the Matteonis.

III

On rehearing Stuart now argues for the first time that the trial court erred by weighing the mitigating circumstances against the aggravating circumstances collectively, rather than separately, relying on the recent decision of this Court in State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). In Charboneau we held that I.C. § 19-2515(e) requires that the mitigating circumstances must be weighed against each aggravating circumstance separately, not against all aggravating circumstances collectively. While Stuart correctly recites our holding in Charboneau, we conclude that on the record in this case there was no improper weighing of the mitigating/aggravating circumstances.

In paragraph 4(G) of his findings, the district court held that:

The court could find nothing in mitigation and in fact analyzing this defendant in search for mitigation produces a negative history with respect to this defendant.

The court concluded in paragraph 5 that “as the court has indicated it could find nothing in mitigation which would outweigh the aggravating circumstances of this crime and this defendant.” Since the district court found “nothing in mitigation,” the case is unlike the situation in Charboneau, where the trial court found mitigating circumstances, but improperly weighed them against the aggravating circumstances collectively. In this case there was no weighing process performed because the trial court found “nothing in mitigation.” Consequently no issue under Ckarboneau and no violation of I.C. § 19-2515 has occurred in this case.

The judgment of the district court denying and dismissing the petition for post conviction relief is affirmed.

BOYLE and McDEVITT, JJ., concur.

1 . The trial court in its post conviction decision also denied Stuart’s claim, specifically pointing out that in Stuart’s original direct appeal to this Court, State v. Stuart, 110 Idaho 163, 176, 715 P.2d 833, 846 (1985), this Court had held that ”[i]t was stipulated at the sentencing hearing that when sentencing the defendant the court would consider evidence presented at the preliminary hearing and trial along with the presentence investigation report.” In Stuart I, the direct appeal, the validity of Stuart’s death sentence was considered by this Court, and no issue regarding the use of the preliminary hearing testimony in the sentencing proceeding was raised. Nor did Stuart file a petition for rehearing from our decision in Stuart I contesting our statement that ”[i]t was stipulated at the sentencing hearing that when sentencing the defendant the court would consider evidence presented at the preliminary hearing and trial along with the presentence investigation report." State v. Stuart, 110 Idaho at 176, 715 P.2d at 846. We need not decide whether it is now too late for Stuart to question the trial court’s post conviction finding that it was stipulated at the sentencing hearing that the court could consider evidence presented at the preliminary hearing. Under our prior decisions in State v. Osborn and State v. Coutts, the trial court did not err in considering the preliminary hearing testimony.

2 . The typed affidavit of Katrina Matteoni, executed February 21, 1987, states that she was then 17 years of age, in February of 1987, and was 5‘A years of age in August of 1975 when her mother first began dating the defendant Stuart. However, the affiant in handwriting corrected the affidavit both as to the spelling of her name, and also corrected her age to 16 years, rather than 17. That would have made her age at the time of her acquaintanceship with the defendant Stuart variously between 4'/> and 6 years. Since her affidavit was executed 12 years after the events, her young age and the lapse of time were relevant factors for the trial court to consider in deciding the weight to be given to that affidavit.