Tappin v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47013
MICHAEL WILLIAM TAPPIN, )
) Filed: October 5, 2020
Petitioner-Respondent, )
) 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) THIS IS AN UNPUBLISHED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. Deborah A. Bail, District Judge.
Judgment dismissing petition for post-conviction relief, affirmed.
Michael William Tappin, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
BRAILSFORD, Judge
Michael William Tappin appeals from the district court’s judgment dismissing his
petition for post-conviction relief following an evidentiary hearing on his claim of ineffective
assistance of trial counsel. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
After the district court summarily dismissed Tappin’s petition for post-conviction relief,
he appealed. In addressing that appeal, this Court provided the following background related to
Tappin’s petition:
As determined in the underlying criminal case, an undercover officer met
with Tappin’s associate to complete a drug transaction. Tappin’s associate could
not complete the transaction because he did not have his digital scale. Tappin’s
associate went to Tappin’s house to retrieve the scale from “Mikey.” Surveillance
officers followed Tappin’s associate to Tappin’s house. Tappin’s associate left
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the house with the scale and completed the drug transaction with the undercover
officer at a nearby location. The surveillance officers continued to observe the
house. After Tappin’s associate left the house, a vehicle made an illegal U-turn
without signaling and parked near the house. Tappin exited the house and got
into the passenger seat of the vehicle. The surveillance officers stopped the
vehicle. Tappin reached toward his waistband area. The surveillance officers
removed Tappin and asked for consent to search him. Tappin consented to a
search, and the surveillance officers found ten grams of heroin in his pocket.
The State charged Tappin with conspiracy to traffic in heroin, Idaho
Code §§ 37-2732B(a)(6)(C), 18-1701, 37-2732(b), and 19-304; trafficking in
heroin, I.C. §§ 37-2732B(a)(6) and 18-204; and possession of drug paraphernalia,
I.C. § 37-2734A. Tappin moved to suppress the evidence, arguing the
surveillance officers did not have reasonable suspicion to initiate the stop. The
district court denied the motion and Tappin pled guilty, reserving the right to
appeal the denial of his motion to suppress. Tappin appealed, arguing the
surveillance officers did not have reasonable suspicion to extend the scope of the
stop. We affirmed the district court, noting that Tappin had not challenged the
scope of the stop in the district court. State v. Tappin, Docket No. 40377 (Ct.
App. Feb. 10, 2014) (unpublished).
Tappin filed a pro se petition for post-conviction relief and affidavit in
support, alleging his trial counsel was ineffective for failing to call him as a
witness at the hearing on his motion to suppress [to] challenge his consent and the
scope of the stop. Tappin also filed a motion for appointment of counsel. The
district court denied Tappin’s motion for appointment of counsel. The district
court noticed its intent to dismiss Tappin’s petition. In its notice of intent to
dismiss, the court stated that arguments by trial counsel challenging Tappin’s
consent and the scope of the stop would have failed because the surveillance
officers had reasonable suspicion for a drug investigation that independently
justified both the search and scope of the stop. Tappin did not timely respond,
and the court summarily dismissed his petition. Tappin filed a motion for
reconsideration. The court denied Tappin’s motion for reconsideration. Tappin
appeals.
Tappin v. State, Docket No. 43197 (Ct. App. Mar. 15, 2017) (unpublished). In resolving
Tappin’s appeal, this Court held that the district court erred by denying his request for counsel,
vacated the court’s summary dismissal order, and remanded the case.
On remand, the district court appointed counsel for Tappin and held an evidentiary
hearing. Tappin proceeded to this hearing on his original petition, which alleged that his trial
counsel was ineffective for failing to call Tappin as a witness at the suppression hearing to
challenge the State’s assertion that he had consented to being searched and also that his appellate
counsel was ineffective. During the hearing, both Tappin and his trial counsel testified. At the
conclusion of the hearing, however, the prosecutor stated that “there has been no evidence
presented today regarding appellate counsel’s performance. That issue has, in fact, not been
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argued or touched whatsoever by counsel today.” Tappin’s post-conviction counsel responded,
“I stipulate to that, Your Honor.”1
Following the hearing, the district court issued a written order denying Tappin’s
remaining claim for ineffective assistance of trial counsel. Based on its findings, the court
concluded Tappin failed to meet his burden of showing his trial counsel’s performance was
deficient and dismissed Tappin’s petition. Proceeding pro se, Tappin timely appeals.
II.
STANDARD OF REVIEW
In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865,
869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct.
App. 2010). When reviewing a decision denying post-conviction relief after an evidentiary
hearing, an appellate court will not disturb the lower court’s factual findings unless they are
clearly erroneous. I.R.C.P. 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004);
Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the
witnesses, the weight to be given to their testimony, and the inferences to be drawn from the
evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56,
106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We
exercise free review of the district court’s application of the relevant law to the facts. Baxter,
149 Idaho at 862, 243 P.3d at 678.
1
Despite this exchange, Tappin challenges the district court for not addressing the merits
of his claim for ineffective assistance of appellate counsel. The district court, however, did not
rule on this claim because Tappin did not pursue the claim at the evidentiary hearing. As a
result, Tappin failed to obtain an adverse ruling on the claim and may not raise the claim for the
first time on appeal. See, e.g., State v. Huntsman, 146 Idaho 580, 585, 199 P.3d 155, 160 (Ct.
App. 2008) (requiring appellate record reveal adverse ruling forming basis of assignment for
appeal); State v. Amerson, 129 Idaho 395, 401, 925 P.2d 399, 405 (Ct. App. 1996) (same); State
v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992) (ruling issues not raised below may not
be considered for first time on appeal).
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III.
ANALYSIS
A. Ineffective Assistance of Trial Counsel
On appeal, Tappin challenges the district court’s dismissal of his claim for ineffective
assistance of his trial counsel. A claim of ineffective assistance of counsel may properly be
brought under the Uniform Post-Conviction Procedure Act. 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).
Tappin generally asserts on appeal that the district court’s factual findings are “in direct
conflict with the record.” The only specific findings he challenges, however, are that his
purported “body movements” when he allegedly denied consent to being searched were
“peculiar” and “threatening.” These findings relate to the court’s analysis of whether Tappin’s
trial counsel was ineffective for not calling him as a witness at the suppression hearing to testify
about Tappin’s purported lack of consent to the search. Regarding this issue the court found,
among other things, that: (1) the information the State produced in discovery indicated at least
two officers reported Tappin had consented to being searched; (2) Tappin’s trial counsel was
aware Tappin disputed this information; and (3) his trial counsel concluded Tappin’s “testimony
would not withstand cross-examination,” “would damage [Tappin’s] position at sentencing,” and
would subject him “to possible perjury charges.”
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The district court further found Tappin’s trial counsel’s “skepticism about [Tappin’s]
veracity was warranted.” The court premised this conclusion on its finding that Tappin’s
testimony about how he allegedly denied consent to be searched was “far-fetched” and lacked
credibility. About his alleged refusal to consent to being searched, Tappin testified at the
suppression hearing as follows:
[T]here was several officers at the scene surrounding.
And I said, “I don’t consent to a search. I’m not going to resist.” And I
was kind of turning around so that the other officers that were present could hear
me. I said, “I’m not going to resist, but in no way consent to the search.
....
. . . I didn’t turn around in a complete 360, but I was craning pretty well
and making sure that the officers that were making contact with the driver--any
officers that usually record things. And so I wanted it to be loud so it could be
audible that I didn’t consent to the search.
The district court specifically found that this testimony was not credible:
[A]ccording to [Tappin], as he was refusing consent, he turned so that his voice
would carry to the other officers--to make sure the other officers heard that he was
refusing to consent. Peculiar body movements of that type would have been
unusual and possibly viewed as threatening. It is not credible that such a
grandiose and unusual act would have not been noticed by at least one officer
present at the scene and made it into the reports.
(Emphasis added.)
Based on Tappin’s testimony, the district court’s factual findings that his “body
movements” were “peculiar” and “threatening” are not clearly erroneous. Further, to the extent
Tappin’s challenge to the court’s findings urge this Court to address credibility issues, we
decline to do so. The rule that credibility findings are solely within the trial court’s province is
well-established. See, e.g., Dunlap, 141 Idaho at 56, 106 P.3d at 382 (stating credibility findings
are solely within district court’s province).
On appeal, Tappin also generally asserts the district court failed to address issues “that
might garner [him] relief.” Tappin identifies these issues as including that his trial counsel:
(1) “acknowledge[d] his own deficient performance” at the evidentiary hearing on Tappin’s
petition; (2) was ignorant of the “relevant law” and should have cited Simmons v. United States,
390 U.S. 377 (1968); State v. Lee, 162 Idaho 642, 402 P.3d 1095 (2017); and State v. Bishop,
146 Idaho 804, 203 P.3d 1203 (2009), in support of Tappin’s motion to suppress; and (3) should
have submitted an affidavit or called Tappin’s co-defendant to testify about his lack of consent to
be searched.
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None of these assertions has merit. First, we disagree that Tappin’s counsel
acknowledged his performance was deficient during the evidentiary hearing. In support of this
assertion, Tappin cites to his trial counsel’s testimony that: (1) he read the grand jury transcript;
(2) he did not recall two particular cases off the “top of [his] head”; and (3) Tappin’s motion to
suppress challenged the lack of reasonable suspicion for the stop and not Tappin’s alleged lack
of consent. These citations neither individually nor collectively support Tappin’s assertion that
his trial counsel admitted his performance was deficient. Second, Tappin has not previously
asserted that his trial counsel should have submitted an affidavit about Tappin’s lack of consent
or called his co-defendant to testify at the suppression hearing, and he may not raise these
challenges for the first time on appeal. See, e.g., State v. Fodge, 121 Idaho 192, 195, 824 P.2d
123, 126 (1992) (ruling issues not raised below may not be considered for first time on appeal).
Moreover, these assertions--as well as Tappin’s assertion that his trial counsel should
have cited Bishop, Lee, and Simmons2 in support of his motion to suppress--all relate to Tappin’s
claim that his trial counsel was ineffective for failing to challenge the voluntariness of his
consent to a search. The district court, however, properly concluded Tappin’s trial counsel’s
decision not to raise this issue was a strategic decision based on trial counsel’s legitimate
concern about the veracity of Tappin’s description of the events. We agree that Tappin’s trial
counsel’s decision not to raise the issue of consent was strategic, was based on Tappin’s lack of
veracity, and was not based on inadequate preparation, ignorance of the relevant law, or any
other shortcoming. See Gonzales, 151 Idaho at 172, 254 P.3d at 73 (ruling strategic decision of
trial counsel will not be second-guessed unless based on inadequate preparation, ignorance of
relevant law, or other shortcomings capable of objective evaluation). Accordingly, Tappin failed
to prove that his trial counsel’s performance was deficient. See Strickland, 466 U.S. at 687-88
(requiring petitioner to prove deficient performance and prejudice).
B. Judicial Misconduct
Tappin’s other challenges relate to his contention that the district judge exhibited “a
pattern of judicial misconduct” when addressing his claims. On appeal, Tappin provides
numerous purported examples of such conduct. He did not, however, file a motion to disqualify
2
See Simmons, 390 U.S. at 389-90 (ruling defendant’s testimony in support of motion to
suppress inadmissible against him at trial); Lee, 162 Idaho at 647, 402 P.3d at 1100 (addressing
whether frisk was unlawful); Bishop, 146 Idaho at 818, 203 P.3d at 1217 (same).
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the district judge. As a result, Tappin failed to preserve the issue for appeal, and this Court
declines to consider the issue. See, e.g., Zylstra v. State, 157 Idaho 457, 468, 337 P.3d 616, 627
(2014) (“In the absence of a motion for disqualification, this Court will not review this issue on
appeal.”).
IV.
CONCLUSION
Tappin did not preserve for appeal his claims of judicial bias and ineffective assistance of
appellate counsel. Further, Tappin failed to prove his trial counsel’s performance was deficient.
Accordingly, we affirm the district court’s judgment dismissing Tappin’s petition for post-
conviction relief.
Chief Judge HUSKEY and Judge GRATTON CONCUR.
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