This appeal stems from the denial of post-conviction relief requested by Anthony G. Cootz, in relation to his 1982 conviction for robbery, aggravated battery, and possession of a firearm during the commission of these crimes. The district court summarily dismissed the application, and Cootz appeals. We affirm.
I.
BACKGROUND
The facts of the crimes are as follows:
On the evening of August 26, 1982, the Boisean Motel was robbed at gunpoint. Cash, including a $100 bill, was taken and the robber fled on foot. Just before the robbery, the manager of the motel observed a white sedan parked around back at a spot not normally used by the public or motel patrons. This car was gone shortly after the robbery. Gary Fost, an intem-offieer candidate with the Boise Police Department, was on routine patrol in the vicinity. He observed a white sedan speed past him in the opposite direction. Fost turned around and followed, intending to cite the driver for speeding. The white sedan led Fost into a residential area where it came to a stop. The driver fled on foot. Fost gave chase. The suspect went over a fence. When Fost peered over the fence he was hit in the face by bird-shot fired from a pistol. The suspect returned to his car and drove away.
The next morning, Jim Davis, Cootz’s father-in-law, contacted the authorities. He told investigators that Cootz came to the Davis residence on the evening of the robbery, appeared excited and wanted to talk to his wife, who was then living with her parents. Davis said he and his wife overheard Cootz tell their daughter he was in trouble and had shot a policeman. Cootz finally left; but not before trying to give his wife some money and giving her and Mrs. Davis guns, ammunition, clothing and makeup to hide.
State v. Cootz,
Pursuant to an order of the Idaho Supreme Court temporarily suspending the appeal, Cootz was allowed to file a second amended application for post-conviction relief in the district court, which was prepared by newly appointed counsel. The state submitted a response to the application, and a summary dismissal hearing was held. On November 1, 1994, the district court issued its memorandum decision and order denying relief on the post-conviction application, except to grant credit for time served. This order reiterated all of the district court’s rulings and rationales of the earlier dismissal orders in the post-conviction proceedings. Cootz’s appeal, therefore, is from the order of the district court denying his second amended application for post-conviction relief without an evidentiary hearing.
II.
STANDARD OF REVIEW
An application for post-conviction relief initiates a proceeding which is civil in nature.
State v. Bearshield,
Idaho Code Section 19-4906 authorizes summary disposition of an application for post-conviction relief, either pursuant to motion of a party or upon the court’s own initiative. Summary dismissal is permissible only when the applicant’s evidence has raised no genuine issue of material fact which, if resolved in the applicant’s favor, would entitle the applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted.
Gonzales v. State,
On review of a dismissal of a post-conviction application without an evidentiary hearing, we will determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file; moreover, the court will liberally construe the facts and reasonable inferences in favor of the non-moving party.
Ricca v. State,
III.
DISCUSSION
A. Denial of Due Process
Cootz first contends that he suffered a denial of his due process rights because the
Also with regard to Count III of the information, Cootz argues that his counsel rendered ineffective assistance by failing to recognize the penalty enhancement issue and seek clarification as to which crime the enhancement would be applied. Cootz alleges that counsel failed to challenge the sufficiency of the pleading and, as a result, was unprepared to offer testimony from Cootz that a different gun was used in each of the two alleged crimes and that only one gun was operable.
Count I of the information charged Cootz with robbery with the use of a pistol. Count II charged Cootz with aggravated battery with the use of a deadly weapon. Count III of the information read as follows:
That the said defendant, Gerald RA. Cootz, on or about the 26th day of August, 1980, in the County of Ada, State of Idaho, did carry and use a firearm, to wit: a pistol, during the commission of the crimes alleged in Count I and Count II.
Idaho Code Section 19-2520 provides for an extended sentence for the use of a firearm or deadly weapon in the commission of certain enumerated crimes, including robbery and aggravated battery. The statute does not define a separate substantive offense, but is merely a sentence-enhancing statute that comes into play after a defendant is convicted of one of the enumerated offenses.
State v. Galaviz,
The district court concluded that Count III gave adequate notice to Cootz that an enhancement of the sentence would be sought upon a verdict of guilty on one or both counts. We agree that, as a matter of law, the notice met the pre-1983 pleading standards of I.C. § 19-2520 and satisfied due process concerns. In light of our conclusion that there was no error with the notice provided by Count III, we cannot find that counsel was ineffective for not requesting more specifics about the enhancement allegation in the information.
To the extent that Cootz claims ineffectiveness of counsel in his counsel’s failure to challenge the penalty enhancement charge in Count III, Cootz must show that his attorney’s performance was deficient and that he was prejudiced by the deficiency.
Strickland v. Washington,
Cootz argues that counsel’s failure to realize that the state was seeking an enhancement for the use of a firearm in the commission of both of the crimes charged precluded the presentation of testimony about the operability of the guns in question. Cootz contends that counsel could have shown that the gun used in the robbery was inoperable and could not therefore have supported an enhancement under I.C. § 19-2520. That statute requires that the use of “any deadly weapon capable of ejecting or propelling one or more projectiles ... [including] unloaded firearms and firearms which are inoperable but which can readily be rendered operable.” Cootz argues that, with his testimony about the guns, only one enhancement could have been proven.
To show that only one of the two guns was inoperable and could not be rendered operable, Cootz proposed that he should have been allowed to testify. However, for Cootz to testify about his knowledge of the operability of the guns used in the commission of the crimes charged would have contradicted his plea of not guilty and his claim of innocence. Such testimony at trial would necessarily have implicated Cootz in the crimes. Under the circumstances, for counsel to fail to put Cootz on the stand solely to testify that one of the two guns used in the commission of the crimes was inoperable cannot be held to be ineffective.
Finally, trial counsel, in his affidavit in support of Cootz’s post-conviction application, attested that he did challenge the application of two penalty enhancements at the time of sentencing. No additional facts have been presented and, without more, we decline to hold that counsel’s performance in this regard was unreasonable and altered the outcome of the case.
See Strickland,
B. Newly Discovered Evidence
Cootz argues that he is entitled to post-conviction relief on the grounds of newly discovered evidence. He supported the allegations in his application by an affidavit of his wife, Joy Davis, which was prepared in 1993, and also an affidavit of Dixie Davis, which was prepared in 1994. In the affidavit of Dixie Davis, she recants her trial testimony. The new evidence therefore consists of affidavits asserting the falsity of parts of the trial testimony of both Dixie Davis and Jim Davis, the parents of Joy Davis. Cootz claims these assertions raise a factual dispute as to whether there was false testimony which led to his conviction.
The Uniform Post-Conviction Procedure Act provides relief from a conviction where there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice. I.C. § 19-4901(a)(4). To justify an evidentiary hearing in a post-conviction relief proceeding, it is incumbent upon the applicant to tender a factual showing based upon evidence that would be admissible at the hearing. The application must be supported by written statements from witnesses who are able to give testimony themselves as to facts within their knowledge, or must be based upon otherwise verifiable information, in order to raise material issues of fact and to justify an evidentiary hearing.
Paradis v. State,
1. Joy Davis’s affidavit
Joy Davis stated in her affidavit that at the time of trial her father was trying to have her mother committed for psychiatric care and was enlisting Joy’s participation in this effort. As a result, Joy alleges that Dixie Davis was being influenced by pressure from Jim Davis and by the use of psychiatric medications affecting Dixie’s state of mind. Dixie’s emotional and psychological state at
The district court considered this new evidence that testimony at the trial was perjured and applied the test for obtaining a new trial based on newly discovered evidence set forth in
State v. Drapeau,
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 the 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.
Id.
at 691,
Assuming, without deciding, that Joy’s statement would be admissible at an evidentiary hearing in the post-conviction proceeding for the purpose of impeachment, the new evidence set forth in Joy’s affidavit, even if deemed sufficient to impeach Jim’s testimony, would not refute what this Court in Cootz’s direct appeal described as overwhelming evidence of guilt.
1
See State v.
2. Dixie Davis’s affidavit
Dixie’s affidavit cast doubt on her mental capacity as a witness at the trial due to psychological pressures and medications she was taking. She indicated that her trial testimony was the result of the manipulating influence of her then-husband, Jim, and she pointed out misrepresentations and falsehoods in her testimony which closely paralleled Jim’s testimony. Dixie asserted that her trial testimony was not totally true as to the same points raised by Joy’s affidavit vis a vis Jim’s testimony. Dixie recanted the portion of her testimony where she stated that she had overheard a conversation between Joy and Cootz where Cootz admitted that he had shot a police officer and that Dixie had taken the bag and its contents and the gun from Cootz to hide them.
To award a new trial based upon recanted testimony, the questions that must be answered are: (1) whether the testimony given by a material witness was false; (2) whether without that testimony the jury might have reached a different conclusion; and (3) whether the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it, or, did not know it was false until after the trial.
Bean v. State,
In our judgment, even if the new version by the recanter (Dixie) is true, it would not undermine Cootz’s conviction. There was sufficient testimony tying the physical evidence to Cootz without Cootz’s admission of having committed a crime. Although Dixie’s testimony further strengthened the state’s case at trial, even without it, there was still sufficient evidence of Cootz’s guilt that we are convinced, beyond a reasonable doubt, that the jury’s finding of guilt would not change.
We agree with the district court that the essential evidence supporting the judgment of conviction was not contradicted by the affidavits submitted by Cootz. The district court correctly held that Cootz failed to make the required showing to entitle Cootz to a new trial on the basis of Dixie’s recanted testimony. We have reviewed the record to determine whether a material fact existed, and we conclude that the district court did not err in dismissing Cootz’s application for post-conviction relief. We affirm the denial of relief in the form of a new trial on grounds of newly discovered evidence and recanted testimony.
C. Failure to Disclose Evidence
Cootz claims that he is entitled to post-conviction relief because the state denied his constitutional rights at trial by failing to disclose evidence in its possession that was favorable to Cootz. Cootz asserts that the state denied him exculpatory information from a witness, with whom police had spoken shortly after the robbery. Reportedly, the witness had given a description of the robber
Any issue which could have been raised on direct appeal, but was not, is forfeited, unless it appears on the basis of a substantial factual showing that the asserted basis for relief raises a substantial doubt about the reliability of the finding of guilt. I.C. § 19-4901(b). Based on Cootz’s assertion that he had only learned of this witness years after the trial and was, until then, unaware that the state had evidence in its possession substantiating that Cootz was not the robber, the district court considered his claim. The district court found that the name of the witness and a copy of her brief statement to the police had been provided by the state in response to a discovery request from Cootz’s counsel. The district court, however, was unwilling to speculate as to the exculpatory nature of any testimony that this witness might have given and denied the claim for relief.
From our reading of the record, we conclude that Cootz was given the name of the witness and the witness’s brief statement which was part of the police report. Not only do we view Cootz’s interpretation of the statement
3
as being exculpatory to be mistaken, but we also conclude that no information about this witness was withheld from Cootz. Allegations are insufficient for the granting of relief when they are clearly disproved by the record or do not justify relief as a matter of law.
Cooper v. State,
In light of our conclusion that the state provided to Cootz all known information about this witness, we decline to find ineffective assistance in counsel’s failure to compel discovery of this evidence. We uphold the district court’s denial of relief premised upon the claimed non-disclosure of exculpatory evidence.
D. Waiver of Right to Testify
Cootz’s next assignment of error is the district court’s failure to hold an evidentiary hearing on his post-conviction application to determine whether Cootz voluntarily waived his right to testify at trial. Cootz claims that his conviction should be overturned because he was deprived of his constitutional right to testify on his own behalf. Drawing a parallel between his case and
State v. Hoffman,
In
Hoffman,
this Court reversed the district court’s finding of waiver based upon Hoffman’s acquiescence in his counsel’s insistence that Hoffman not testify. We concluded that there was no evidence in the record to support the district court’s finding that Hoffman knew of, or that his counsel had advised him of, his ultimate right to testify.
Id.
at 692,
The affidavit in Cootz’s case indicates that Cootz had repeatedly told his counsel of his desire to testify on his own behalf. However, he could not say counsel had told him that he could not testify. Neither could he say
Cootz’s counsel, in his affidavit, confirmed that Cootz had expressed a strong interest in testifying. He could not recall whether he had advised Cootz that the ultimate decision to testify belonged to Cootz. Counsel added, however, that Cootz did not testify as a result of counsel’s advice. From this record, therefore, the district court could not ascertain that Cootz knew of his ultimate right to testify — the prerequisite to finding that Cootz had waived his right to testify.
As in
Hoffman,
the next step is to apply a harmless error analysis, pursuant to
State v. Darbin,
Cootz’s affidavit indicated that he wanted to testify about his eye color, tattoos, injured toe, and his size, but he did not because he was not adequately advised that the decision whether to testify was his alone. The state responded to Cootz’s application and moved the district court for dismissal on the grounds that Cootz failed to show the specific prejudices he suffered as a result of counsel’s alleged inadequacies. Cootz filed a supplemental affidavit wherein he indicated that, had he been advised that he had the final decision whether to testify, his testimony would have addressed the following:
(a)The state presented evidence that Cootz tried to get Dixie Davis to take a $100 bill, which purportedly was stolen in the robbery. Cootz said he would have testified that the $100 bill came from his place of employment, i.e., he had just obtained it from the bank on behalf of a client for whom he handled funds.
(b) The state introduced evidence that the robber ran from the scene and vaulted a fence. Cootz said he wanted to testify that he had suffered an injury to his toe the morning of the robbery, which would have prevented him from walking, running, vaulting a fence, or driving his car at high speed, as was indicated in the police report.
(c) The state presented evidence that the robber had dark eyes, no identification marks on his face or hands, and was of medium build. Cootz said he wanted to testify that his eyes are blue and that he has clearly visible tattoos of a teardrop at the corner of his right eye, a little man (which is partially burned and scarred) on his left hand, and a time dot on his right hand. He also would have testified that he would not describe himself as being of medium build.
(d) The state offered the clothing worn by the robber into evidence. Cootz said he wanted to testify that the clothes did not fit him.
(e) Cootz also wanted to testify “about the facts and scenario surrounding the robbery and the shooting” to show that he was not the robber.
Cootz’s explanation of where he obtained the $100 bill would not be relevant to the jury’s finding of guilt. His appearance at the trial, including the tattoo on his face, was readily seen by the jury who had been told that the robber had disguised his appearance with the use of makeup. Again, any testimony contrasting Cootz’s facial characteristics and those of the robber would also have been apparent to the jury. Evidence of Cootz’s toe injury had already been testified to by Jim and Dixie Davis and would not have gained additional significance coming from Cootz. Finally, the facts of the robbery as Cootz knew them to be, had Cootz presented this evidence to the jury, would only serve to convince the jury that he was guilty by virtue of his knowledge of those facts. Weighed against the evidence of guilt, we conclude
As previously noted, to prevail on a claim of ineffective assistance of counsel, an applicant must demonstrate both that counsel’s performance was deficient and that the applicant was prejudiced by the deficiency.
See Strickland v. Washington,
There has been no factual showing that Cootz was prejudiced by the alleged failure of counsel to fully advise him of his right to testify. We necessarily conclude that no material issues of fact existed which would warrant an evidentiary hearing on that issue. The district court’s denial of an evidentiary hearing is therefore affirmed.
E. Remaining Ineffective Assistance of Counsel Claims
Cootz further argues that the district court erred in denying him an evidentiary hearing on his remaining claims that he was denied the effective assistance of counsel at trial. He asserts that counsel was ineffective in failing to adequately prepare for trial, call any of the witnesses Cootz requested, or obtain medical records of an injury to Cootz’s toe, thereby failing to put on any sort of reasonable defense. Cootz argues that summary dismissal of these claims was error.
A post-conviction application may be dismissed summarily where its allegations, even if true, would not entitle the applicant to relief.
Whitehawk v. State,
On review of a dismissal of a post-eonvietion application, without an evidentiary hearing, we will determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file; moreover, the court will liberally construe the facts and reasonable inferences in favor of the non-moving party.
Ricca v. State,
A post-conviction claim of ineffective assistance of counsel must sufficiently allege facts under both prongs of the
Strickland
test,
i.e.,
deficient performance and prejudice.
Roman v. State,
Cootz claims that counsel failed in a number of ways to adequately prepare for trial. Cootz asserts that counsel did not call any of the witnesses Cootz had identified to testify at trial, that counsel did not conduct pre-trial interviews with the state’s witnesses, that counsel did not hire an investigator, that counsel did not conduct independent tests on the tires of Cootz’s car, and that counsel did not obtain medical records about the treatment of Cootz’s broken toe nor did counsel seek to present expert testimony as to the limitations caused by the broken toe.
Cootz argues that counsel failed to present the testimony of any of the individuals Cootz wanted to call to testify. Assuming Cootz’s allegations to be true, there is nothing in the record to indicate how these witnesses might have testified and how their testimony might have affected the outcome of the trial. An application must be supported by written statements from witnesses who are able to give testimony themselves as to facts within
As to Cootz’s allegation that counsel should have conducted independent tests and hired an investigator, there is only speculation on Cootz’s part that such tests or investigation would have led to the discovery of evidence supportive of Cootz’s case. There is no indication how this information would have changed the outcome at trial. Similarly, as to Cootz’s complaint that counsel failed to obtain medical treatment records on his toe injury, or expert testimony as to the limitations caused by such an injury, Cootz has not shown that such evidence exists. Although we acknowledge that trial counsel’s affidavit in support of Cootz’s application seems to admit that his representation may have been somehow deficient, Cootz has failed to show that he was prejudiced by the ineffectiveness he assigned to his counsel.
See Parrott v. State,
IV.
CONCLUSION
In ruling on Cootz’s post-conviction claims, the district court found that Cootz failed to provide facts sufficient to raise a genuine issue of material fact sufficient to warrant an evidentiary hearing. With respect to the ineffective assistance of counsel claims, the district court found that Cootz failed to make a prima facie showing that, but for counsel’s deficient performance, the outcome at trial would have been different. We conclude that the district court did not commit reversible error in denying Cootz’s post-conviction application without an evidentiary hearing. We affirm the denial of post-conviction relief.
Notes
. The record contains abundant evidence, apart from the escape evidence, which supports Cootz’s conviction. His car matched the car described by witnesses. The skid marks, which disclosed that the car had both bias ply and radial tires, matched the tire stance and tire types found on Cootz's car. The robber wore a fake beard. Hair fibers which could be used in a fake beard were found at the scene of the shooting. Similar hair fibers were found in Cootz’s car. The clothing Cootz left at the Davis residence was similar to the clothing worn by the robber. Makeup was also found; the robber used makeup to disguise himself. Bird shot was used to shoot the police officer; Cootz’s mother-in-law gave police bird shot rounds given to her by Cootz the night of the shooting. The Davises testified to overhearing a conversation wherein Cootz implicated himself. Cootz’s co-workers testified that Cootz told them of details of the crime that were not included in the newspaper. Cootz was in possession of a large roll of money, including a $100 bill, when he was arrested.
State v. Cootz,
.
State
v.
Scroggins,
. In her statement to police investigators, the witness:
... advised that a few minutes prior to the robbery she observed a subject matching suspect description setting [sic] in the shadows on a grassy area on the northside of Villa Restaurant. This is located across Chalet St. just south of the motel office. She briefly spoke to suspect, small talk and exchanged first names. Suspect stated his name to be Peter.