*1 challenges al appeal.9 on direct IV. CONCLUSION Appellant’s counsel did render not inef- point, Aragon related contends that trial, sentencing, fective assistance at or the district court erred in dismissing many appeal. Appellant direct has failed to arguments post-convic- raised in his carry prejudiced his that he burden was petition tion by granting summary judg- representation, or his that counsel’s ment to state on the basis of judi- res conduct contributed to his conviction. Nor Specifically, cata. Aragon asserts that the grant- erroneously district court incorrectly based his decision ed on judicata. the basis of res Accord- on amended version I.C. ingly, judgment and order of the dis- 19-4901(b),10which was not in § effect at trict court is AFFIRMED. post-conviction time of his hearing.11 However, the record does not establish that SHEPARD, C.J., BAKES judge granted district summary judg- HUNTLEY, JJ., McQUADE, J., ment on the basis of I.C. 19-4901. Rath- § tern, pro concur. er, the record summary shows judg- that granted ment was on judi- of res previously,
cata. As discussed our Kraft requires
decision that in actions between parties upon claim,
the same the same adjudication (here, former appeal) direct parties every concludes not mat- CLARKE, Plaintiff-Appellant, Vicki offered, ter “but to every also as matter might or litigated should have been M.D., PRENGER, Thomas F. Jane suit.” 100 Idaho at first wife; Prenger, Doe husband and (emphasis P.2d at 1007 added in Kraft) M.D., Rena A. and John Doe (quoting Joyce v. Murphy Land Etc. wife, Yonkosky, husband and Defend- 549, 553, (1922)). 35 Idaho 208 P. ants-Respondents. Thus, amended version of I.C. No. 17003. 19-4901(b) and our decision have § Kraft the same effect applied post-con- Supreme Court of Idaho. viction proceedings. put otherwise, Or Aug. 25, 1988. 19-4901(b) version of amended I.C. mere- § ly the pre-existing codified case law. Con-
sequently, we find no in the error district judicata ruling.12
court’s res 9. We note that Aragon reliability finding guilt necessarily pre- is not about the not, making diligence, arguments cluded in the exercise due from constitutional have corpus been earlier. proceedings. in federal habeas If he can that claim is so "constitutional nov- 11. The amended version of I.C. 19-4901(b), § legal el that its basis” available was not to his language quoted preced- which added I, appellate Aragon counsel at the time note, approved by legislature claim will entertained in a federal habeas 1, 1986, Aragon April filed until after the time Ross, 1, 16, proceeding. Reed v. 468 U.S. post-conviction January petition on relief 2901, 2910, S.Ct. 82 L.Ed.2d 5, 1985. 10. 19-4901(b) provides Code now § issues, however, barred Not all are res part: pertinent judicata post-conviction proceedings for fail- Any issue which could have been raised on argue appeal. For ure to them on direct exam- not, appeal, direct but was is forfeited and ple, is a ineffective assistance of counsel matter may post pro- not be considered in conviction Kraft, supra. post-conviction for Also, relief. See court, ceedings, unless it post-conviction barred where relief is not discovered, showing by basis of substantial factual affi- new evidence or where later case davit, otherwise, suggests or the assert- law a conviction is unlawful. See I.C. § ed basis relief raises substantial doubt 19-4901. *2 Prenger
necessary. Defendant is a board- Silverton, family practitioner in certified Idaho, request upon he inserted Shortly plaintiff Clarke. there- IUD into Prenger unable to after Clarke and were IUD, preg- locate the and Clarke became failed to lo- nant. Continued examinations Plaintiff delivered the child cate the IUD. Subsequent- not located. IUD was ly, experienced pelvic disease and Clarke Yonkosky, referred to defendant who general surgeon. is a board-certified considerable Thereafter Clarke received treatment, including surgery, and ultimate- pelvic region. ly the IUD was located in her alleging filed instant action vio- Clarke by of care applicable lation of the standard physicians. the defendant taking depositions of Following the Clarke, de- Prenger, and summary judgment. for fendants moved plaintiff filed affidavits response thereto obstetrician-gynecolo- of a board-certified Washington. Among gist from the state affidavits, contained other matters stated: professional stan- I am familiar with Hannon, Associates, Jenkins & Coeur physicians care to the dard of d’Alene, Hemovich, Oreskovich, Nappi & Yonkosky engaged in the Prenger and Spokane, Wash., plaintiff-appellant. Clarke in Shoshone treatment Vickie argued. Carl J. Oreskovich I have County, Idaho. reviewed Quane, Smith, Hull, Boise, Howard & of Mrs. medical records and treatment defendants-respondents. Jeremiah A. Prenger Yonkosky by doctors Clarke Quane argued. opinion that doctors and am of the both Yonkosky Prenger and have breached SHEPARD, Chief Justice. of care the standard physicians engaged the treatment of summary judg- This is an from a cases such as Vickie Clarke’s Sho- physicians ment favor of defendant in a County, Idaho. shone malpractice medical action. The sole issue presented summary judgment is whether supplemented That affidavit was a let- correctly issued on the basis that the set forth in de- ter attached thereto which plaintiff’s expert witness were affidavits opinion tail the reasons for familiarity insufficient to demonstrate with Prenger Yonkosky had breached care, standard of and whether the local applicable standard of care. witness, being plaintiff’s expert board- aforesaid, judge granted As the district specialties certified in the same as were the the motion for defendants, express qualified was not that Dr. had not demonstrat- opinion as to the of care incum- standard ed of care upon physicians. bent the defendant circumstances, applicable in the and that reverse. Rattray was not “in same shown practice Since the so nar- of medical as either of row, only a of the facts is defendant truncated version the two doctors.” express We take this cy, process occasion to if indeed no had en- been
disapproval
grow
of what
be a
gaged
standard,
toin
determine such
ing practice among the trial courts of this
deficiencies
have been established
dismissing
malpractice
state
medical
taking
the witness.
*3
point
the summary judgment
on the Nevertheless,
the
affidavits establish
plaintiffs’ expert
basis that
witnesses are
pos-
statements that the witness
sufficiently
not
familiar
the standard
knowledge
sessed
local
care to
expected
defendant-phy
of
be
from
care,
standard of
and the
care
standard of
law,
sicians. Our rules and our decisional
upon
incumbent
each
in their
defendant
175,
State,
then v.
96
525 P.2d
Wor
Idaho
specialties. Hence,
board-certified
hold
we
(1974);
957
Bank v.
Tri-State Nat.
West
that the statements
in
contained
the affida-
543,
Gateway
ern
92
Storage
Idaho
vits, together
legitimate
with all the
infer-
(1968);
56(e),
with
sum-
cases did not involve
the above-cited
required.
sician is
The witness must
testi-
mary judgment, but rather involved
knowledge acquired from
demonstrate a
trial where there
mony of witnesses at
study
of
experience or
of the standards
be,
was,
development of
a full
and
specialty
physician
of the defendant
knowledge of the
expertise and
give
expert
him
sufficient to enable
to
an
cialty
physicians.
the defendant
conformity of the de-
opinion as to the
is-
summary judgment and orders
particular
conduct
to those
fendant’s
by the district court are reversed
sued
standards,
and not to the standards
proceed-
for further
the cause is remanded
particular specialty if it dif-
the witness’s
appellant.
ings. Costs to
is
fers from that of the
It
defendant.
knowledge and
scope
of the witness’s
BISTLINE,
HUNTLEY
by
classification
title
not the artificial
JOHNSON, JJ., concur.
govern
ques-
that should
the threshold
in
admissibility.
the decisions
tion of
Of
BAKES, Justice, dissenting:
jurisdictions
other
discussed
which have
very
v.
is
similar to Pearson
This case
issue,
the decided
this
to be
334,
757
114
view,
omitted).
(citations
majority
my
to
concur-
Reference is made
plaintiff’s
It is obvious from the
exten-
in-depth
for an
discus-
ring opinion therein
proof
Goldenberg met
sive offer of
junc-
At this
law.
sion
requisites
more than the minimal
of fa-
however,
in
ture,
repeating
bears
miliarity with the standards of an obste-
proceedings I.R.C.P.
trician-gynecologist
diagnosis
that,
oppos-
56(e)requires
“Supporting and
him
lumps
qualify
and care of
breast
personal
on
ing
shall be made
affidavits
expert opinion.
pre-
an
It is
render
knowledge,
forth such facts as
shall set
cisely such a circumstance that reveals
evidence,
in
and shall
would be admissible
by
the distinction
title as artificial
is
affirmatively that
show
affiant
formal, ignoring
exper-
the substantive
testify
to the matters stated
tise of the witness.
”
added.)
(Emphasis
therein.
agree
analysis
with the
of the Connecti
plain-
I dissent because the affidavits
Harold,
cut court.
also Radman v.
See
witness,
Rattray, failed to
expert
tiff's
(1977) (internal
279 Md.
367 A.2d
qualifications
that he has the
demonstrate
specialist
necessary
held
medicine
to have
necessary
testify
expert
as an
in this
express opinion as to the
qualifications to
not laid
adequate
An
foundation was
case.
gynecologist-sur
alleged negligence of
conclusory
by the mere inclusion
Schulte,
geon);
v.
441 So.2d
Wright
statement,
generally
“I
familiar
e.g.,
am
(board-certified pathologist
(Fla.App.1983)
expect-
the standards of medical care
with
gynecolo
in
experience
obstetrics
ed____” Rather,
adequate
an
foundation
alleged
as to the
gy
qualified
held
only
initially
an affidavit
sets out
laid
surgeon
performing
in
negligence of a
Arnesen,
necessary
the facts
for a court to rule on
hysterectory);
381 N.W.
Riewe
expert
qualifications. Casey
affiant’s
(Minn.App.1986), review denied
2d 448
Idaho-505, 508,
(non-surgeon
qualified
Highlands
internist held
to tes-
Ins.
(1979)(“Where
Silverton, Idaho,
removed,
an affidavit
and is far
place,
merely
Rattray’s
does not set
both time and
from Dr.
states conclusions and
Pullman,
facts,
training
experience
supporting
is inad-
Wash-
out
affidavit
ington, in 1974.
genuine
missible to show the absence
fact.”).
of material
issue
analysis propounded
I also dissent to the
First,
768, 760
ante majority.
multiple
reasons for the inade-
There are
First,
majority
P.2d at
asserts that once
quacy
of Dr.
affidavits.
rendered
an affidavit is
sufficient
different than the defend-
his
ants’,
regarding
affiant’s
statement
may
expert
and a medical
one field
standards,
knowledge
then it is
local
testify against
a medical
in an-
up to the defendant to establish deficien-
other field unless he
that he
demonstrates
plaintiff’s
by taking
case
special- cies
the standards of the other
knows
plaintiff’s
witness. How-
ty.1
statement in the affidavits
ever,
contrary
requir-
this runs
to the rule
suggest
which would even
that Dr. Rat-
plaintiff
initially
tray,
obstetrician-gynecologist, knows
case
Prenger,
with admissible evidence.
the standards
to Dr.
family practitioner,
certified
and Dr.
board
Secondly,
majority approvingly cites
*5
general
a board certified
sur-
Ante
jurisdictions.
four cases from other
geon,
Rattray’s
conclusory
is Dr.
own
768-769,
at
1184-1185.
760 P.2d at
statement
“I am
familiar with
proposition
though
Even
cited for the
professional
applicable
standard of care
Rattray
testify
re-
Dr.
physicians Prenger
Yonkosky____”
gardless
specialty,
it should
noted
be
absolutely
There is
no factual foundation
that,
exception, in each case cited
without
conclusion,
laid for Dr.
nor are
regard-
majority opinion
in the
a foundation
any
explaining
there
facts set out
he
how
expert’s qualifications
was laid be-
gained
with
respective experts were allowed to
fore the
family practitioners
standard of care for
alia,
inter
example,
testify
all. For
at
general surgeons. Accordingly,
his af-
Fitzmaurice
evidence was
estab-
fidavit is insufficient.
practicing surgeon,
lishing
as a
surgery. He
specializing in
cancer
breast
Particularly,
made no factu-
professor,
a lectur-
was also shown
showing
al
of how he became
of the
aware
textbooks,
consultant,
er,
an author of
local standard of care
to these
force,
cancer task
member of breast
specialties
defendants’
in the area serviced
investigator
Coopera-
principal
hospital,
the local
in this case the East
Study Group. Like-
Breast
tive
Cancer
serving
Hospital,
Shoshone
the Wal-
Fitz-
wise,
following
the cited cases
each of
lace/Kellogg
6-1013. Dr.
area.
I.C. §
maurice contains
a recital of the founda-
Rattray claims that he learned these de-
prior
expert’s
tion that was laid
fendants’
of care while he was
testimony.
majority
The
should follow the
training for his own different medical
cited cases.2
lead
its own
However,
again
cialty.
there are
no factu-
sum,
my
support
I
to adhere to
views
al statements to
continue
Parsons,
supra.
Furthermore,
Pearson
opinion
expressed
in his affidavit.
malpractice proceed-
early
Specifically,
1980’s
in medical
cause of action accrued
be,
was,
Clair,
develop-
a full
Idaho
dation for the doctor’s before
he is expert opinion. allowed to render his
Here, the affidavit Dr. does not
lay adequate Accordingly, foundation. opinion his affidavit is deficient and his Gibson, Stephen pro Gibson and Diana expressed therein is not admissible. I se. affirm the would district court. Jones, Atty.
Jim Gen. Lawrence G. Sirhall, Jr., Gen., Boise, Deputy Atty. plaintiff-respondent.
BURNETT, Judge. presented is whether the crime of to “make” income tax “return,” provided as the Idaho income code, tax includes failure “file” re- Idaho, Plaintiff-Respondent, STATE turn. We hold that does. began Stephen This case and Diane Gibson, Stephen and Diane GIBSON charged by Gibson were misdemeanor com- wife, husband plaint willfully failing to “make” a Defendants-Appellants. 63-3075(a). “return” income under I.C. § juryA magistrate trial was held No. *6 prosecu- division of the district court. Appeals of Idaho. Court proof tor that the Gibsons had a failed file tax return with the Idaho July Tax State Commission for 1983. At the Rehearing Denial of Addendum On case, Gibsons, conclusion of the state’s 2, 1988. Sept. representing propria themselves in perso- na, complaint moved to dismiss Petition for Review Denied ground the state had prove failed to a 9, 1988. Nov. failure to They “make” a return. contend-
ed that the state had shown a failure They to “file” a return. reasoned that the language 63-3075(a) of I.C. § —“make solely returns” —was directed to the acts of forms, completing dating tax them and signing urged them. Accordingly, they proof of failure “file” did not estab- lish the elements of the crime charged in this case.
Apparently, magistrate accepted event, reasoning. any some this In granted.1 motion dismiss was The state perfected appeal then to the district Nonetheless, magistrate expressed significant 1. The also a view I.C. we do a note distinction 63-3030A, permits which a § district court remedy between civil which enables the state filing compelling enter a writ of mandate to obtain a tax return and a criminal sanction return, delinquent was the state’s exclusive penalizes taxpayer to file. remedy taxpayer’s failure to file. The view, remedy preclude the civil does not judge disagreed reasoning. district with this No initiating prosecutions state from criminal party to has raised issue. Ac- against taxpayers. recalcitrant cordingly, length. we will not address it at