Dunlap v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 47179
TIMOTHY ALAN DUNLAP, ) Boise, September 2021 Term
)
Petitioner-Appellant, ) Opinion Filed: August 30, 2022
)
v. ) Melanie Gagnepain, Clerk
)
STATE OF IDAHO, ) SUBSTITUTE OPINION. THE
) COURT’S PRIOR OPINION
Respondent. ) DATED JANUARY 5, 2022 IS
) HEREBY WITHDRAWN.
Appeal from the District Court of the Sixth Judicial District, State of Idaho, Caribou
County. Mitchell W. Brown, District Judge.
The judgment of the district court is affirmed.
Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant
Timothy Alan Dunlap. Shannon N. Romero argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent State of
Idaho. L. LaMont Anderson argued.
_____________________
STEGNER, Justice.
This is an appeal from an order dismissing a petition for post-conviction relief. Timothy
Dunlap was sentenced to death by a Caribou County jury in 2006. In 2008, Dunlap filed a petition
for post-conviction relief, alleging that numerous errors had occurred at his 2006 sentencing
hearing. The district court dismissed the petition in its entirety. Dunlap appealed to this Court. In
State v. Dunlap, 155 Idaho 345, 313 P.3d 1 (2013) (“Dunlap V”), this Court affirmed the dismissal
of all but two of Dunlap’s claims. These were: (1) multiple claims of prosecutorial misconduct
under Brady v. Maryland, 373 U.S. 83 (1963) and Napue v. Illinois, 360 U.S. 264 (1959); and (2)
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).
Upon remand, the district court held two evidentiary hearings, one involving each of
Dunlap’s remaining claims. The district court found that Dunlap had failed to establish either claim
and denied Dunlap’s request for post-conviction relief. Dunlap timely appealed. For the reasons
discussed below, we affirm the decisions of the district court.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1991, Dunlap pleaded guilty to the first-degree murder of Tonya Crane, a bank teller in
Soda Springs. The plea agreement allowed the State to seek the death penalty, which it did. Dunlap
was sentenced to death by the district court in 1992.
After this Court affirmed Dunlap’s conviction and sentence on direct appeal, State v.
Dunlap, 125 Idaho 530, 873 P.2d 784 (1993) (“Dunlap I”), Dunlap filed a petition for post-
conviction relief, challenging both his conviction and sentence. This Court once more affirmed his
conviction. Dunlap v. State, 141 Idaho 50, 106 P.3d 376 (2004) (“Dunlap II”). The State, however,
conceded that an error had occurred in the original sentencing hearing and agreed that Dunlap
should be resentenced. Because the United States Supreme Court had decided Ring v. Arizona,
536 U.S. 584 (2002), in the interim, which held that the Sixth Amendment right to a jury trial
extended to imposition of the death penalty, this Court remanded the case for resentencing by a
jury instead of a judge. Id.The State again sought the death penalty. This time, the Idaho Attorney General’s office
was appointed as a special prosecutor. Three Deputy Attorneys General (“DAGs”) in the
Prosecutorial Assistance Unit of the Attorney General’s office were assigned to prosecute Dunlap
at his resentencing hearing: Kenneth Robins (lead counsel), Justin Whatcott, and Scott Smith.
Dunlap was represented by two attorneys at the resentencing hearing: David Parmenter and
James Archibald. Parmenter was lead counsel and Archibald was co-counsel. The defense team
also retained an investigator, Roseanne Dapsauski, as a mitigation specialist.
District Judge Don Harding presided over the resentencing hearing, which took place on
seven separate days in February 2006. The State presented testimony from fourteen witnesses:
Mary Goodenough, a bank teller who was working the day Tonya Crane was shot; Margo May, a
bank employee who was also working the day Tonya Crane was shot; Claude Mendenhall, a bank
patron who was present outside the bank the day Tonya Crane was shot; Steve Somsen, a deputy
sheriff with the Caribou County Sheriff’s Department; William Long, an FBI agent; Sheriff Ray
Van Vleet, the Caribou County Sheriff; Dr. John Obray, a surgeon who had attempted to treat
Tonya Crane after she was shot (Obray’s deposition was read to jury as he did not testify live);
Jerry Bavaro, a Soda Springs police officer; Dorothy Schugt, the owner of the motel where Dunlap
stayed while in Soda Springs; Blynn Wilcox, the Soda Springs Chief of Police; Dr. Kerry
Patterson, the pathologist who performed the autopsy of Tonya Crane; Don Wyckoff, the lab
2
manager for the State Crime Lab; Dwight Van Horn, an Idaho State Police firearms inspector; and
Marilyn Young, an Indiana newspaper reporter Dunlap had contacted to discuss his prior crime in
Indiana as well as Tonya Crane’s murder.
Dunlap then presented testimony from seven witnesses: Terry Clem, Dunlap’s first-grade
teacher; Dr. Mark Cunningham, an expert clinical and forensic psychologist; Judge Richard
Striegel, a judge in Indiana who had prior dealings with Dunlap; Mark Dunlap, Dunlap’s younger
brother; Suzanne Nelson, Dunlap’s younger sister; Patricia Henderson, Dunlap’s mother; and Dr.
Craig Beaver, an expert neuropsychologist. Video depositions of Clem and Striegel were played
for the jury, and Cunningham’s testimony from a prior post-conviction proceeding was read to the
jury; only Dunlap’s family members and Beaver testified live.
In rebuttal, the State presented testimony from Daryl Matthews, M.D., a forensic
psychiatrist. Dunlap presented no other witnesses in response to Matthews’ testimony. The State
then read several victim impact statements to the jury and Dunlap made a statement in allocution.
Both the State and Dunlap presented closing arguments.
After the close of evidence,
[t]he jury found that the State proved three statutory aggravating factors beyond a
reasonable doubt, specifically: (1) by the murder, or circumstances surrounding its
commission, the defendant exhibited utter disregard for human life (I.C. § 19–
2515(9)(f)) (the utter disregard aggravator); (2) the murder was committed in the
perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, kidnapping
or mayhem and the defendant had the specific intent to cause the death of a human
being (I.C. § 19–2515(9)(g)) (the specific intent aggravator); and (3) the defendant,
by prior conduct or conduct in the commission of the murder at hand, has exhibited
a propensity to commit murder which will probably constitute a continuing threat
to society (I.C. § 19–2515(9)(h))1 (the propensity aggravator). The jury further
found that all the mitigating evidence, weighed against each aggravator, was not
sufficiently compelling to make imposition of the death penalty unjust.
Dunlap V, 155 Idaho at 358, 313 P.3d at 15 (footnotes omitted). Then, “[i]n accordance with the
verdict, the district court entered a judgment sentencing Dunlap to death.” Id.
Dunlap filed a petition for post-conviction relief with the district court on May 27, 2008,
alleging that numerous reversible errors had occurred at his 2006 resentencing hearing which
entitled him to a new sentencing hearing. On November 24, 2009, the district court granted the
State’s motion for summary dismissal of the petition. Dunlap appealed to this Court, which
affirmed the district court’s dismissal of all but two of Dunlap’s claims: (1) prosecutorial
3
misconduct under Brady and Napue; and (2) ineffective assistance of counsel under Strickland.
We remanded the case, instructing the district court to hold an evidentiary hearing on those issues.
Upon remand, and at the request of the parties, the district court bifurcated the two claims,
holding a separate evidentiary hearing for each. At the first evidentiary hearing, held August 26,
27, and 28, 2014, the parties presented evidence on the prosecutorial misconduct claim. On July
29, 2015, the district court denied Dunlap relief under both Brady and Napue and entered a partial
judgment of dismissal as to Dunlap’s prosecutorial misconduct claim. Dunlap petitioned this Court
for permission to appeal this initial determination, which this Court denied on September 21, 2015.
Dunlap also moved the district court for reconsideration of the dismissal, which the district court
denied on September 30, 2015.
The second evidentiary hearing was held in April 2016, and consisted of ten days of
testimony. The parties presented evidence regarding Dunlap’s ineffective assistance of counsel
claims. After granting multiple extensions of time for both parties, the district court denied relief
and entered a final judgment dismissing Dunlap’s petition for post-conviction relief in its entirety
on May 28, 2019. Dunlap moved for reconsideration of the district court’s dismissal of his post-
conviction relief claims, which the district court denied on December 3, 2019.
Dunlap timely appealed.
II. STANDARD OF REVIEW
“Post-conviction proceedings are civil in nature and therefore the applicant must prove the
allegations by a preponderance of the evidence.” Dunlap II, 141 Idaho at 56, 106 P.3d at 382.
“Upon review of a district court’s denial of a petition for post-conviction relief when an evidentiary
hearing has occurred, this Court will not disturb the district court’s factual findings unless they are
clearly erroneous.” McKinney v. State, 133 Idaho 695, 700, 992 P.2d 144, 149 (1999). “A factual
finding is clearly erroneous only if it is not supported by ‘substantial and competent evidence in
the record.’ ” Stuart v. State, 127 Idaho 806, 813, 907 P.2d 783, 790 (1995) (quoting Pace v.
Hymas, 111 Idaho 581, 589, 726 P.2d 693, 701 (1986)).
“This Court exercises free review of the district court’s application of the relevant law to
the facts.” Dunlap II, 141 Idaho at 56, 106 P.3d at 382. However, the “ ‘duty to search for
constitutional error with painstaking care is never more exacting than it is in a capital case.’ ” Kyles
v. Whitley, 514 U.S. 419, 422 (1995) (quoting Burger v. Kemp, 483 U.S. 776, 785 (1987)). This is
because
4
the penalty of death is qualitatively different from a sentence of imprisonment,
however long. Death, in its finality, differs more from life imprisonment than a 100-
year prison term differs from one of only a year or two. Because of that qualitative
difference, there is a corresponding difference in the need for reliability in the
determination that death is the appropriate punishment in a specific case.
Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion).
III. ANALYSIS
Dunlap makes two prosecutorial misconduct claims on appeal: first, that the prosecution
suppressed favorable and material evidence regarding Dunlap’s mental health in contravention of
Brady; and second, that the prosecution either elicited or failed to correct false testimony in
contravention of Napue. Dunlap also asserts several ineffective assistance of counsel claims
pursuant to Strickland. Each will be discussed in turn.
A. The district court did not err in denying relief on Dunlap’s prosecutorial misconduct
claims.
1. The district court did not err in denying Dunlap relief under Brady.
Around the same time as his 2006 resentencing hearing, Dunlap and the Attorney General’s
office were engaged in a separate lawsuit. On May 7, 2004, Dunlap filed a pro se complaint in the
U.S. District Court for the District of Idaho, alleging he was being housed inappropriately at the
Idaho Maximum Security Institution (IMSI) in violation of his civil rights because he was housed
in Tier 2 of “C-block” rather than in the general population (the “federal housing case”). Dunlap
named Warden Greg Fisher as a defendant.
William Loomis, a DAG with the Idaho Department of Correction (IDOC) Unit of the
Attorney General’s office, was assigned to represent Fisher in Dunlap’s federal housing case. On
January 31, 2005, Loomis emailed both the Chief Psychologist at IDOC, Dr. Chad Sombke, and
Fisher, asking Sombke to provide a “brief explanation of why Dunlap is in [T]ier 2 and why he
cannot be moved into the general population.” Sombke responded that “C-block Tier 2 is for the
stable mentally ill and Mr. Dunlap would fit that category.” (Italics added.) Sombke noted that, in
his opinion, Dunlap would be “cleared psychologically to be moved to [the] general population.”
Sombke also told Loomis that, while Dunlap “is functional enough to be” in the general population,
it was Sombke’s opinion that Dunlap would not do well there. 1 Fisher also responded to Loomis’
email, stating that he “always defer[red] to the decision of Dr. Sombke as to whether or not
1
Sombke apparently feared for Dunlap’s safety if he were to be housed in the general population. Dunlap is of slight
stature, which could put him at risk of predation by other inmates.
5
[inmates with mental health issues] should be considered for other housing, be it restrictive or
general population.”
On January 9, 2006, about a month before the resentencing hearing, Loomis called Robins.
Loomis planned to seek a stay in Dunlap’s federal housing case pending the results of the
resentencing hearing, and he asked Robins to provide an affidavit. Robins agreed to do so, and
Loomis filed Robins’ affidavit with the federal district court. The subject of Dunlap’s mental health
was apparently never broached at any point during the telephone conversation between Robins and
Loomis.
In this appeal, Dunlap argues that, in violation of Brady, the State suppressed the 2005
opinions of Sombke and Fisher that Dunlap was mentally ill and housed accordingly. “ ‘There are
three components of a true Brady violation: The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ ” State
v. Hall, 163 Idaho 744, 830, 419 P.3d 1042, 1129 (2018) (quoting Strickler v. Greene, 527 U.S.
263, 281–82 (1999)). The district court found that the prosecution had not suppressed any alleged
Brady evidence, the second prong of the test, and denied relief. Because the district court
concluded Dunlap had failed to establish that the State suppressed any potential Brady evidence,
it did not consider whether the evidence was favorable to Dunlap or resulted in prejudice.
To support his contention that the 2005 opinions of Fisher and Sombke were suppressed
by the State, Dunlap presents two main arguments: first, “the district court erroneously concluded
knowledge of [Dunlap]’s mental health was not imputed from [D]AGs and state agents who
assisted the State in defending against [Dunlap]’s federal lawsuit[] to [D]AGs prosecuting
[Dunlap]’s capital sentencing.” The crux of Dunlap’s first argument is that Robins, who was
employed in the Prosecutorial Assistance Unit of the Attorney General’s office, and Loomis, who
worked for the IDOC Unit of the Attorney General’s office, are within the same “prosecutor’s
office” for purposes of Brady. Dunlap argues that, given Robins’ assistance to Loomis in Dunlap’s
federal housing case, Robins had a duty to inquire of Loomis regarding any potential Brady
material. Dunlap urges Loomis’ knowledge of Sombke’s and Fisher’s 2005 opinions should be
imputed to Robins.
Second, Dunlap argues the district court improperly shifted the burden to defense counsel
to uncover exculpatory evidence known by the State. Dunlap argues that the district court
6
erroneously adopted the “diligent defender” standard set forth in United States v. Hicks, 848 F.2d
1 (1st Cir. 1988), and impermissibly shifted the burden the State owed Dunlap under Brady.
Dunlap further contends this Court rejected the “diligent defender” standard when it decided Grube
v. State, 134 Idaho 24, 995 P.2d 794 (2000).
We conclude there was no suppression by the State because Dunlap’s defense team was
apprised of the purportedly suppressed evidence. At the second evidentiary hearing, the district
court admitted Parmenter’s notes regarding a meeting he had with Dunlap on August 24, 2005.
Next to Sombke’s name, Parmenter had written “also thinks Tim’s crazy.” 2 In the note, “crazy” is
underlined. Also admitted were notes written by Dapsauski regarding a meeting she had with
Dunlap approximately two months later, on October 21, 2005, which state that Dunlap “got off
[death] row in 2002 and then he was sent to C Block, Tier II because that is where Sombke said
he should be housed.” Dapsauski further noted that Sombke “thinks Tim is crazy and should be on
Tier [2] the rest of his life.” Dapsauski testified at the second evidentiary hearing that this note was
“provided to counsel.”
It is clear from the record that not only was Dunlap’s defense team aware that Sombke
believed Dunlap was mentally ill, but the defense team was also aware that Sombke believed
Dunlap was appropriately housed due to his mental health issues. “[W]hen a defendant possesses
‘the salient facts regarding the existence of the [evidence] that he claims [was] withheld,’ ” there
is no Brady violation. Hall, 163 Idaho at 831, 419 P.3d at 1129 (quoting Raley v. Ylst, 444 F.3d
1085, 1095 (9th Cir. 2006)). If “a defendant has enough information to be able to ascertain the
supposed Brady material on his own, there is no suppression by the government.” Id. at 831–32,
419 P.3d at 1129–30 (quoting United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991)). Because
Dunlap’s counsel were aware of the “salient facts,” we conclude that there was no suppression by
the State. This defeats Dunlap’s Brady claim, and we need not address the other two prongs of the
Brady analysis.
Therefore, we hold the district court did not err when it denied Dunlap relief under Brady.
2. The district court did not err in denying Dunlap relief under Napue.
At the resentencing hearing, the State attempted to portray Dunlap as mentally competent
and as a malingerer seeking to avoid execution. To support these theories, the State relied on
2
We recognize that use of the word “crazy” to describe someone with a mental illness is both archaic and offensive.
However, because Dunlap’s mental illness is the subject of the dispute here, we find it necessary to quote certain
witnesses and evidence verbatim for the sake of clarity and accuracy.
7
Exhibit 39, a small excerpt of Dunlap’s mental health records comprising four pages of medical
chart notes from 2002. The notes discussed instances in which Dunlap had admitted to IMSI mental
health professionals that he had concocted stories of delusions, which supported the State’s
malingering theory. For example, one note, written by Sombke, stated that Dunlap “continued to
say that his past behavior was all purposeful and due to him being on death row” and quoted
Dunlap as saying “ ‘I’ve always said this was all due to my sentence and once I got off, I’d
change.’ ” Another note, written by IMSI clinician Royce Creswell, stated Dunlap, “by his own
admission, was faking mental illness and was [] adept at the scam.” Creswell’s note continued:
“Wow – This man had me fooled!! He is on no meds of any kind and he is completely clear.” It is
undisputed that Exhibit 39 did not contain the bulk of Dunlap’s chart notes or consist of anything
more than a small snippet of Dunlap’s records.
Robins used Exhibit 39 to question both Beaver and Matthews about Dunlap’s mental
health. Robins asked Beaver whether Exhibit 39 was “part of the records that [he] had evaluated”
and elicited testimony from Beaver regarding what was contained in those notes. Robins also
elicited testimony from Matthews that the notes within Exhibit 39 were “some of the most
important documents in the record” and that “[t]he jury should give them powerful weight
[because] what you have got here, basically, are a bunch of seasoned mental health professionals
who admit that [] Dunlap pulled the wool over their eyes.” 3
Robins also questioned Matthews about the medical notes of Dr. Kenneth Khatain, a mental
health professional who treated Dunlap at IMSI and concluded Dunlap was mentally ill. Matthews
testified that “[o]ne of the remarkable things about those notes is that it looked like that doctor
didn’t even think about the possibility of malingering. . . . I couldn’t even find the record where
there was a complete evaluation done by this doctor.” When asked on cross-examination by
Archibald whether Khatain had met with Dunlap on a monthly basis, Matthews responded that
Khatain
may [have]. I didn’t see a month-by-month record from this doctor. I saw about
five notes over the course of about five years. So how often he actually met with
him and what the frequency of his meetings were, I don’t actually know. I do know
there were times that he would not meet with them because Mr. Dunlap didn’t want
[t]o meet with them. So I just don’t know the answer to that.
3
In Dunlap V, this Court found this exchange regarding the weight the jury should give a particular piece of evidence
to be harmless error. 155 Idaho at 370–71, 313 P.3d 26–27.
8
On appeal, Dunlap argues that Exhibit 39 is false because of its “gross omissions,”
rendering any testimony regarding Exhibit 39 from Beaver and Matthews “false testimony” within
the meaning of Napue. Additionally, Dunlap contends Matthews falsely testified about Khatain’s
treatment of Dunlap.
“[T]o establish a Napue 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) (quoting State v. Wheeler, 149 Idaho 364,
368, 233 P.3d 1286, 1290 (Ct. App. 2010)). The district court found that the prosecution did not
knowingly present false testimony or allow unsolicited false testimony to go uncorrected and
denied Dunlap relief on his Napue claim. Because the district court concluded Dunlap had failed
to establish that the State presented Napue evidence, it did not consider whether the presentation
of allegedly false evidence was material.
To support his claim that the State knowingly elicited or failed to correct false testimony,
Dunlap points to what Exhibit 39 did not contain: Sombke’s 2005 opinion that Dunlap was
mentally ill and housed correctly and Creswell’s 2003 opinion that Dunlap was mentally ill and
needed antipsychotic medication. Dunlap contends that “[t]his testimony and evidence left the
impression that [Dunlap] was faking it and everyone at IMSI agreed” even though “Robins knew
Exhibit 39 falsely represented Sombke’s and Creswell’s opinions regarding [Dunlap]’s mental
illness.” Dunlap additionally contends that Matthews’ testimony about only seeing five notes
“intentionally impl[ied] Khatain saw [Dunlap] only five times in five years,” which was
demonstrably false.
During the cross-examination of Beaver, Robins asked if the mental health records
contained in Exhibit 39 were “part of the records that [Beaver] evaluated.” (Italics added.) Beaver
answered affirmatively. Additionally, during the direct examination of Matthews, Robins refers to
Exhibit 39 as “a series of records dealing with situations where it was asserted that [] Dunlap
admitted that he actually – that it was all an act or that he made up or malingered mental illness.”
Robins then asked Matthews, “[i]n these particular situations, how should that affect the diagnosis
of Mr. Dunlap? What weight should the jury give it?” (Italics added.) Neither Robins, Beaver, nor
Matthews ever characterized the opinions in Exhibit 39 as being the only mental health opinions
in the record.
9
As to the testimony regarding Khatain, when asked on cross-examination by Archibald
whether Khatain met with Dunlap on a monthly basis, Matthews responded that Khatain “may
have” but that he had not seen a “month-by-month record.” Dunlap contends that “[h]ow many
notes Matthews ‘saw’ is irrelevant,” but it appears that Matthews was simply testifying to his own
recollection as to what he reviewed in the IDOC records. Additionally, as pointed out by the State,
Matthews’ testimony was “couched in uncertainty”: Matthews explicitly stated that he “just
[didn’t] know the answer” and that Khatain “may have” met with Dunlap on a monthly basis.
Because Dunlap has failed to show the existence of false testimony, we hold the district
court did not err when it denied Dunlap relief under Napue. As such, we need not address the other
two prongs of the Napue analysis.
B. The district court did not err in denying relief on Dunlap’s ineffective assistance of
counsel claims.
Dunlap makes three primary ineffective assistance of counsel claims on appeal: first, that
the district court applied an improper, heightened standard to the ineffective assistance of counsel
claims; second, that Dunlap’s defense team was ineffective in failing to investigate and present
certain mitigating evidence; and third, that the district court improperly considered the alleged
instances of ineffectiveness in isolation, rather than collectively, when determining their
prejudicial effect.
In determining whether a defendant received effective assistance from his counsel, this
Court looks to the United States Supreme Court’s two prong test set forth in Strickland:
A convicted defendant’s claim that counsel’s assistance was so defective as
to require reversal of a conviction or death sentence has two components. First, the
defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable.
466 U.S. at 687.
To establish deficient performance, this Court requires a defendant to show that “counsel’s
representation fell below an objective standard of reasonableness.” State v. Abdullah, 158 Idaho
386, 417, 348 P.3d 1, 32 (2015) (quoting Strickland, 466 U.S. at 687). As this Court set forth in
Dunlap V:
10
Trial counsel has a duty to conduct a thorough investigation in preparation for the
penalty phase of a capital case. See, e.g., Porter v. McCollum, 558 U.S. 30, 38–41
(2009). Presentation of some mitigating evidence, even if strong, is insufficient if
other mitigating evidence is available upon reasonable investigation. Rompilla v.
Beard, 545 U.S. 374, 387–93 (2005). However, no relief is mandated where
counsel’s investigation is not as thorough as it could have been because the courts
“address not what is prudent or appropriate, but only what is constitutionally
compelled.” Burger v. Kemp, 483 U.S. 776, 794 (1987). This Court held, in State
v. Row, that counsel is not required to investigate a defendant’s “entire life in order
to objectively present . . . mitigation evidence” and that decisions regarding mental
health and allocution statements are “strictly strategic and shall not be second-
guessed by this Court.” 131 Idaho 303, 313, 955 P.2d 1082, 1092 (1998).
155 Idaho at 388, 313 P.3d at 44. “While there is no duty to sort through the defendant’s ‘entire
life,’ easily available mitigation evidence cannot be ignored.” Id.
There is a “strong presumption” that defense counsel “made all significant decisions in the
exercise of reasonable professional judgment.” Abdullah, 158 Idaho at 418, 348 P.3d at 33
(citing Cullen v. Pinholster, 563 U.S. 170, 195 (2011)).
A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged
action “might be considered sound trial strategy.” See Michel v. Louisiana, [350
U.S. 91, 101 (1955)]. There are countless ways to provide effective assistance in
any given case. Even the best criminal defense attorneys would not defend a
particular client in the same way.
Strickland, 466 U.S. at 689. “Tactical decisions made by counsel will not be second-guessed on
post-conviction relief, unless made upon the basis of inadequate preparation, ignorance of relevant
law, or other shortcomings capable of objective evaluation.” Abdullah, 158 Idaho at 505, 348 P.3d
at 120.
To establish prejudice, a defendant must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 418, 348 P.3d at 33 (quoting Strickland, 466 U.S. at 698). A “reasonable probability” is “a
probability sufficient to undermine confidence in the outcome,” creating a substantial likelihood
that the outcome would have been different, as opposed to a conceivable
likelihood. Id. (citing Harrington v. Richter, 562 U.S. 86, 112 (2011)).
11
1. The district court applied the correct legal standard when analyzing Dunlap’s
ineffective assistance claim.
Dunlap contends that, rather than applying the correct two-prong analysis under Strickland,
the district court erroneously applied a “doubly deferential standard” as set out in Harrington v.
Richter, 562 U.S. 86 (2005). Dunlap argues that the Harrington standard only applies to federal
habeas proceedings in which federal courts are reviewing state habeas proceedings, not to the state
habeas proceedings themselves, and that both this Court and the United States Supreme Court have
misread Strickland:
Though even this Court has cited this incorrect standard with attribution to
Harrington v. Richter, Strickland makes clear that “[t]he result of the proceeding
can be rendered unreliable, and hence the proceeding itself unfair, even if the errors
cannot be shown by a preponderance of the evidence to have determined the
outcome.” In fact, Harrington cites Strickland for the principle that “[t]he
likelihood of a different result must be substantial, not just conceivable,” even
though this principle is nowhere to be found in Strickland.
Harrington involved a federal habeas petition that was subject to the requirements of the
Antiterrorism and Effective Death Penalty Act (AEDPA). 562 U.S. at 91. In Harrington, the
defendant first filed a petition for a writ of habeas corpus in state court, alleging ineffective
assistance of counsel under Strickland. Id. at 96. The California Supreme Court denied relief,
prompting the defendant to file a subsequent habeas petition in federal court alleging the same
claim. Id. at 97. The federal district court denied relief, as did a three-judge panel of the Ninth
Circuit. Id. However, an en banc panel of the Ninth Circuit reversed the three-judge panel’s
decision, determining that the California Supreme Court’s denial of relief on the defendant’s
ineffective assistance of counsel claim was “unreasonable.” Id.The Supreme Court then reversed the en banc panel of the Ninth Circuit. Id. at 91. When
evaluating ineffective assistance of counsel claims that are subject to AEDPA, a federal court may
only grant habeas relief in three limited situations: first, if “it is shown that the earlier state court’s
decision ‘was contrary to’ federal law then clearly established in the holdings of [the Supreme]
Court”; second, if “it ‘involved an unreasonable application of’ such law”; or third, if “it ‘was
based on an unreasonable determination of the facts’ in light of the record before the state court.”
Id. at 100 (quoting 28 U.S.C. § 2254(d)). Because the Ninth Circuit relied on the second of these
scenarios to grant habeas relief, the Supreme Court explained that “[t]he pivotal question is
whether the state court’s application of the Strickland standard was unreasonable.” Id. at 101.
12
This is different from asking whether defense counsel’s performance fell below
Strickland’s standard. Were that the inquiry, the analysis would be no different than
if, for example, this Court were adjudicating a Strickland claim on direct review of
a criminal conviction in a United States district court. Under AEDPA, though, it is
a necessary premise that the two questions are different.
Id. The Harrington Court further stated that “[e]stablishing that a state court’s application of
Strickland was unreasonable under [AEDPA] is all the more difficult. The standards created by
Strickland and [AEDPA] are both highly deferential, and when the two apply in tandem, review is
doubly so.” Id. at 106 (internal quotations and citations omitted).
Before answering “[t]he pivotal question” of “whether the state court’s application of the
Strickland standard was unreasonable,” the Court laid out the standard for Strickland’s second
prong:
In assessing prejudice under Strickland, the question is not whether a court can be
certain counsel’s performance had no effect on the outcome or whether it is possible
a reasonable doubt might have been established if counsel acted differently. Instead,
Strickland asks whether it is “reasonably likely” the result would have been
different. This does not require a showing that counsel’s actions “more likely than
not altered the outcome,” but the difference between Strickland’s prejudice
standard and a more-probable-than-not standard is slight and matters “only in the
rarest case.” The likelihood of a different result must be substantial, not just
conceivable.
Id. at 111–12 (quoting Strickland, 466 U.S. at 696, 693, 697). The Court found that “[i]t would not
have been unreasonable for the California Supreme Court to conclude [the defendant’s] evidence
of prejudice fell short of this standard.” Id. at 112 (italics added).
Contrary to Dunlap’s argument, when the Supreme Court stated “[t]he likelihood of a
different result must be substantial, not just conceivable,” it was not setting out a “doubly
deferential” test under both Strickland and AEDPA. Instead, the Supreme Court was simply
explaining the second prong of the Strickland analysis. The “doubly deferential” standard comes
into play only when a federal court is tasked with determining whether a state court applied
Strickland unreasonably; it is the unreasonableness inquiry that is the “doubly deferential”
standard, not that “[t]he likelihood of a different result must be substantial, not just conceivable.”
Therefore, we conclude that the district court applied the correct standard to analyze
Dunlap’s Strickland claims that Dunlap’s defense team was ineffective in failing to investigate and
present certain mitigating evidence.
2. The district court did not err when it concluded that Dunlap’s defense team was not
ineffective in investigating and presenting mitigating evidence.
13
a. The district court correctly concluded that Dunlap’s defense team was not
ineffective in presenting evidence of Dunlap’s family life and background.
Dunlap next argues that his defense team was ineffective because more evidence of his
family life and background should have been presented. At the second evidentiary hearing, Dunlap
presented testimony from: his brother, Mark Dunlap; his sister, Suzanne Nelson; and his mother,
Patricia Henderson; each of whom also testified at the 2006 resentencing hearing. Dunlap also
presented testimony from several witnesses who did not testify at the 2006 resentencing hearing.
Roy Prince, a teacher at Dunlap’s high school, testified that, though he did not know Dunlap well
and had never actually taught him, he thought Dunlap was “out there” and “didn’t fit in” except
“with the theater people.” Prince further testified that “it looked . . . like a lot of the kids at the
high school were afraid of” Dunlap. Mark Baize, a high school friend of Dunlap, testified that he
was good friends with Dunlap, but that Dunlap was “shunned [by] a lot” of the other students.
Baize further testified that he had never been contacted by anyone on Dunlap’s defense team prior
to the resentencing hearing but that, if he had, he would have been willing to testify. Paul Locket,
Dunlap’s high school math teacher, testified that Dunlap had low grades in school and had
attempted to “form an army.” Jennifer Davidson, Dunlap’s ex-wife, testified about her relationship
with Dunlap and its eventual decline. She recounted disturbing stories she learned from Dunlap’s
parents about Dunlap growing up involving potential arson and animal cruelty, and the mental
health issues experienced by the son she shares with Dunlap. Davidson further testified that she
had never been contacted by anyone on Dunlap’s defense team prior to the resentencing hearing
but that, if she had, she would have been willing to testify. After considering the testimony of each
witness, the district court found that Dunlap had failed to satisfy either prong of Strickland.
On appeal, Dunlap first argues that the testimony presented at the resentencing hearing—
that of his brother, sister, and mother—was presented ineffectively, contending that defense
counsel “did little to guide” his mother’s testimony. Dunlap also argues that defense counsel
should have presented the testimony of additional witnesses, such as Dunlap’s teachers and
childhood friends. Particularly, Dunlap contends that the defense team should have presented
testimony from his ex-wife at the resentencing hearing, as she could have attested to both his odd
behavior during their marriage and subsequent divorce, as well as to the mental health issues
experienced by their son.
“ ‘[C]ounsel’s choice of witnesses, manner of cross-examination, and lack of objection to
testimony fall within the area of tactical, or strategic, decisions, as does counsel’s presentation of
14
medical evidence.’ ” Abdullah, 158 Idaho at 500, 348 P.3d at 115 (quoting Giles v. State, 125 Idaho
921, 924, 877 P.2d 365, 368 (1994)). “For additional mitigation evidence to demonstrate prejudice
in a post-conviction proceeding, it simply cannot be cumulative of evidence presented at
sentencing, but rather must create a substantial likelihood of a different sentence.” Id. at 495, 348
P.3d at 110.
In Abdullah, this Court held that defense counsel was not ineffective in failing to present
additional mitigation evidence from the defendant’s family members. Id. at 492, 348 P.3d at 107.
The evidence in question included traumatic events witnessed or experienced by the defendant. Id.
This Court held that, although the proffered evidence was “undoubtedly heartfelt, emotional, vivid,
and moving,” it was cumulative of other evidence presented by counsel. Id. “The decision to
present a fewer number of witnesses than [the defendant] would now prefer on appeal is a
conceivable tactical decision. Under the deferential Strickland standard, this decision is ‘strongly
presumed’ to be reasonable.” Id. As such, this Court held that the defendant’s counsel was not
deficient in its presentation of mitigation evidence on the defendant’s background and family life.
Id. at 493, 348 P.3d at 108.
Here, Dunlap’s defense team presented an array of mitigating evidence from Dunlap’s
immediate family, as well as from his first-grade teacher. The defense team’s choices regarding
which witnesses to call is generally a strategic decision afforded deference under Strickland. See
Dunlap V, 155 Idaho at 387, 313 P.3d at 43. Dunlap cannot simply assert on appeal that defense
counsel should have put on more witnesses, especially when the additional witnesses would have
offered similar testimony to that already presented. See Abdullah, 158 Idaho at 492, 348 P.3d at
107.
Also, even though Baize testified at the second evidentiary hearing that he would have been
willing to testify at the resentencing hearing in 2006, the district court noted that Dunlap’s defense
team was aware that Baize was a potential witness. Baize, however, had apparently been contacted
by an investigator for Dunlap’s original sentencing in 1992 and, according to the investigator’s
notes, told the investigator “if your [sic] looking for somebody to say nice things about [Dunlap]
you came to the wrong place.” The investigator described Baize as “angry” at Dunlap “almost to
the point of being vindictive.” Whether or not the investigator’s notes reflect the truth of Baize’s
feelings about Dunlap in 1992, the notes are reflective of the information Dunlap’s resentencing
15
defense team had when making the decision whether to investigate Baize. Given this background,
we cannot say that refusing to further investigate Baize was not objectively reasonable.
Furthermore, the evidence Dunlap argues should have been presented includes evidence of
the genetic component of his mental illness and additional “humanizing” evidence of Dunlap’s
good character. However, as found by the district court, Beaver’s expert psychological testimony
acknowledged that Dunlap’s son’s mental illness supported a genetic component to Dunlap’s own
mental illness. Additionally, Cunningham testified that there is a genetic predisposition to the
mental disorders suffered by Dunlap. Thus, any additional testimony offered by Dunlap’s mother
or ex-wife regarding the mental health issues of family members would have been cumulative.
The humanizing evidence Dunlap alleges should have been introduced would also have
been cumulative. Dunlap’s mother, brother, and sister each testified to positive qualities possessed
by Dunlap, as well as his progression of mental health issues. Both Dunlap’s first-grade teacher
and the judge who committed Dunlap to a mental health hospital testified to the progression of
Dunlap’s struggle with mental illness. As such, additional anecdotes of Dunlap’s character and
mental illness would have been cumulative and unlikely to have changed the outcome.
We conclude Dunlap’s defense team was not deficient in choosing to limit its mitigation
witnesses to certain family and friends of Dunlap. Therefore, we hold that the district court did not
err when it concluded that Dunlap’s defense team was not ineffective in presenting evidence of
Dunlap’s family life and background.
b. The district court correctly concluded that Dunlap’s defense team was not
ineffective in presenting evidence of the connection between Dunlap’s
mental illness, medication, and behavior at IMSI.
Dunlap next alleges his defense team should have presented evidence of the connection
between his mental illness, medication (or lack thereof), and behavior while incarcerated at IMSI.
The district court concluded that the defense team was not ineffective in failing to do so. The
district court first found that Judge Harding had employed rigid timing and funding restraints on
the defense team. The district court also found that Dapsauski had provided Beaver with a timeline
on which he could base his testimony and to help him prepare his testimony. Further, the district
court acknowledged that even though the materials provided to Beaver “were not organized in a
manner perhaps accustomed to by Dr. Beaver” that did not mean that counsel were deficient,
particularly because both Beaver and Cunningham were able to provide testimony “addressing the
16
connection between Dunlap’s mental illness, medication, and behavior during his confinement at
IMSI.” The district court continued:
Finally, the Dunlap Defense Team’s determination to rely solely upon Dr.
Beaver not only to testify concerning his testing, evaluation and opinions, but to
narrate a summary of Dunlap’s medical and mental health records, including those
maintained at IMSI was a tactical decision and arrived at by the Dunlap Defense
Team after consideration, discussion and an exercise of professional judgment.
Therefore, the district court found that Dunlap did not establish deficient performance or prejudice
to warrant post-conviction relief.
On appeal, Dunlap argues that
[c]ounsel’s failures to link [Dunlap]’s disciplinary and behavioral issues with the
absence of antipsychotics, and their failure to link [Dunlap]’s good behavior to his
receipt of proper psychiatric medication, resulted from their failure to review,
analyze, and understand [Dunlap]’s IMSI records. If they had, they would have
discovered every DOR [Disciplinary Offense Report] occurred when [Dunlap] was
unmedicated, but when properly medicated, [Dunlap] is neither violent nor
dangerous and does not get DORs. The district court’s contrary conclusion, [sic] is
erroneous and not supported by substantial evidence.
Dunlap focuses on a “timeline” that, under prevailing professional norms, should have been used
to assist the jury in understanding the connection between Dunlap’s mental illness symptoms and
whether he was taking any medication for those symptoms.
In response, the State argues that Beaver presented the connection between Dunlap’s
mental health and whether he was taking any medications. Broadly, the State asserts that Dunlap’s
chief complaint is that counsel chose to rely on Beaver as its primary expert witness, instead of
relying on multiple witnesses, which the State notes is in direct contravention of Judge Harding’s
ruling that only one expert would be appointed to the defense. In short, the State argues that Dunlap
did not receive ineffective assistance because only Beaver testified about Dunlap’s mental health.
In reply, Dunlap contends that “the State’s arguments excusing counsel’s shortcomings by
pointing to resource limits, imposed by yet another state actor, the district court judge, is
inappropriate.” Dunlap argues that, at the evidentiary hearing, the defense team “never said their
investigation, analysis, argument[,] or presentation of mitigating evidence, or their rebuttal of the
State’s aggravation case, was curtailed by time or resource limits imposed by the district court”
but “was based on just [their] own decision.”
Once again, this Court has maintained a deferential standard when reviewing defense
counsel’s tactical choices: “ ‘counsel’s choice of witnesses, manner of cross-examination, and lack
17
of objection to testimony fall within the area of tactical, or strategic, decisions, as does counsel’s
presentation of medical evidence.’ ” Abdullah, 158 Idaho at 500, 348 P.3d at 115 (quoting Giles,
125 Idaho at 924, 877 P.2d at 368) (italics added).
Dunlap has failed to meet his burden in establishing deficient performance. At the
evidentiary hearing, Archibald testified that, in his experience, most jurors tended not to trust
mental health experts anyway:
My personal experience about mental health evidence is juries don’t believe a lot
of it anyway, whether it’s for you or against you. I’ve never had a jury say wow,
we really hung on every word that psychologist said. I’ve never had a jury member
say that. Most jury members have said we didn’t really pay much attention to the
expert.
The defense team’s decision to present the medical evidence through Beaver’s testimony was
strategic and thus, their performance does not fall below an “objectively reasonable” standard.
Additionally, Dunlap has failed to establish prejudice. For example, Matthews testified at
the resentencing hearing about the tenuous link between a medication and a diagnosis:
I do know that a combination of Thorazine and Haldol which was the kind of
combination which was mostly used when I was in medical school, that there is no
rational reason for combining those two medicines. That it has been suggested to
you that he must be very sick because he is taking Haldol and Thorazine[—]by no
means is that true. What it means is he has been on an inappropriate combination
of medicine that has no indication in psychiatry. So I will encourage the jury not to
draw any conclusions from the fact he is taking medication. You don’t conclude
that someone has a particular sickness because they are taking medicines that might
be prescribed for that sickness.
Matthews was then asked, “What if the clinician starts a patient on this particular medicine and
concludes that he seems to be doing okay with that particular medicine[, i]s that reflective of an
actual diagnosis of whether it is schizo-affective disorder or any other disorder for that matter?”
Matthews responded:
You cannot use response to treatment alone as an indicator that a person has a
particular illness, and why not? Well, for a bunch of reasons. One is that he may be
faking the illness to begin with. That is probably what the situation is for Mr.
Dunlap, but also maybe the medicine treats other conditions than the one that
you’ve diagnosed. So you can’t say that just because he seems okay on the medicine
that he has, that particular illness which you think the medicine should be used for.
(Italics added.) Thus, had the defense team provided the jury with the timeline now suggested by
Dunlap, there is every possibility that the jury could have used that timeline to corroborate
Matthews’ testimony that Dunlap was feigning mental illness. The jury could have reasonably
18
concluded that the reason Dunlap was well behaved when he was on medication was all an act to
convince others he was mentally ill. We cannot say that, but for counsel’s failure to provide the
jury with a “timeline,” there is a reasonable probability that Dunlap would have received a sentence
other than death.
Furthermore, Dunlap’s argument that timing and budgeting issues were caused by the
district court is precluded by his own admission that his defense team “never said their
investigation, analysis, argument[,] or presentation of mitigating evidence, or their rebuttal of the
State’s aggravation case, was curtailed by time or resource limits imposed by the district court”
but “was based on just [their] own decision.” While Dunlap’s argument is unavailing under these
particular facts, we do not condone the practice of the same judge overseeing both a capital trial
and sentencing proceedings as well as making financial decisions related to the funding of defense
experts. In our view, the best practice is to, pursuant to Idaho Criminal Rule 12.2(d), utilize a
second, disinterested “resource judge” to make decisions relating to the defense budget, including
the number of expert witnesses that may be retained. See I.C.R. 12.2(d).
Nevertheless, under the particular facts of this case, we hold that the district court did not
err when it concluded that Dunlap’s defense team was not ineffective in presenting evidence of the
connection between Dunlap’s mental illness, medication, and behavior at IMSI.
c. The district court correctly concluded that Dunlap was not prejudiced by
his defense team’s deficient performance in failing to present evidence from
Caribou County Jail personnel and inmates.
Dunlap next contends that his defense team was ineffective because it failed to adequately
investigate, interview, and call witnesses who had interacted with Dunlap during the time he was
incarcerated in the Caribou County Jail. Prior to the evidentiary hearing, Dunlap produced
affidavits from several individuals who were either employed by or incarcerated at that jail,
including Sheriff’s deputies and Dunlap’s cellmates. Most of these witnesses did not testify at the
second evidentiary hearing; however, Dunlap submitted their affidavits. One witness did testify:
James Clark, a former inmate at the Caribou County Jail who shared a cell with Dunlap. Clark’s
testimony described Dunlap’s behaviors relating to his mental health and other interactions he had
with Dunlap. Clark further testified that “he was never contacted or asked to testify at Dunlap’s
resentencing trial by the Dunlap Defense Team.”
The district court stated it “ha[d] considered Clark’s testimony and ha[d] reviewed the
Affidavits of those Caribou County Jail Personnel who submitted affidavits.” The district court
19
then concluded that Dunlap’s defense team was deficient in failing to investigate or interview any
individuals from the jail:
it appears to this [c]ourt that the Dunlap Defense Team would want to develop and
present testimony to the jury concerning Dunlap’s mental well-being and state
which was as current as possible. . . . [T]o not investigate, interview, and call
someone to verify Dunlap’s mental condition and ongoing symptoms consistent
with Dr. Beaver’s diagnosis appears to this [c]ourt to be deficient under the first
Strickland prong.
The district court next found that although the defense team was deficient, this deficiency
did not “undermine the [c]ourt’s confidence in the outcome of the resentencing hearing.” The
district court found that the disputed testimony was “much the same” as other testimony offered
by Dunlap’s friends, family, and mental health professionals.
On appeal, Dunlap contends that the jail personnel and inmate evidence was not cumulative
of any other evidence before Dunlap’s jury. Dunlap asserts that there was no evidence of Dunlap’s
behavior while he was incarcerated in the jail, and such evidence would have “cast doubt” on
Dunlap’s “continuing threat to society and risk of future danger.” (Citing Skipper v. South
Carolina, 476 U.S. 1, 4–5 (1986).) Dunlap asserts that this evidence was “independently
mitigating,” and its absence caused prejudice to Dunlap because there was a likelihood that at least
one juror would have rejected a sentence of death had it been presented.
In response, the State first challenges the district court’s finding of deficiency, arguing that
the defense team “arguably” knew of the potential witnesses from the jail and chose not to present
their testimony as part of its strategy. The State also contends that the district court properly
considered all the evidence when concluding that Dunlap suffered no prejudice.
In reply, Dunlap first asserts that the State has not properly challenged the district court’s
finding of deficiency on appeal. Dunlap continues that the deficiency finding is supported by the
evidence, but that failing to include this evidence was prejudicial. Dunlap alleges that evidence of
his behavior while in the jail demonstrated Dunlap’s ability to “live peaceably with multiple people
in a congregate setting.” This evidence, Dunlap argues, was “crucial to dispelling the State’s claim
that [Dunlap] constitutes a continuing threat to society.”
Because we conclude Dunlap has failed to establish prejudice, we need not decide whether
the State has properly challenged the district court’s deficiency finding. “To prove that counsel’s
deficient performance prejudiced the defendant, ‘[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
20
would have been different.’ ” Dunlap v. State, 159 Idaho 280, 297, 360 P.3d 289, 306 (2015)
(“Dunlap VI”) (quoting Strickland, 466 U.S. at 688). “A reasonable probability is defined as a
probability sufficient to undermine confidence in the outcome. The likelihood of a different result
must be substantial, not just conceivable.” Abdullah, 158 Idaho at 418, 348 P.3d at 33 (citations
and quotations omitted).
Here, Cunningham’s original testimony was read to the jury. Cunningham testified at
length about Dunlap’s potential for future dangerousness, specifically within the prison system.
While the testimony of Clark may have presented a more recent picture of Dunlap’s dangerousness
in a prison setting, we find the district court did not err in concluding there was not a reasonable
probability that the omitted evidence would have resulted in a different verdict.
Additionally, Dunlap’s reliance on Skipper is inapposite. In Skipper, the defendant had
spent seven and a half months in jail awaiting his capital sentencing hearing. 476 U.S. at 3. Both
the defendant (Skipper) and his ex-wife testified that he had behaved well during his stint in jail.
Id. The defendant also “sought to introduce testimony of two jailers and one ‘regular visitor’ to
the jail to the effect that [the defendant] had ‘made a good adjustment’ during his time spent in
jail.” Id. The trial court, finding the proffered testimony to be irrelevant, precluded the defendant
from calling any of the three witnesses. Id. The Supreme Court reversed, stating that “evidence
that the defendant would not pose a danger if spared (but incarcerated) must be considered
potentially mitigating.” Id. at 5. The Supreme Court continued,
the State seems to suggest that exclusion of the proffered testimony was proper
because the testimony was merely cumulative of the testimony of petitioner and his
former wife that petitioner’s behavior in jail awaiting trial was satisfactory, and of
petitioner’s testimony that, if sentenced to prison rather than to death, he would
attempt to use his time productively and would not cause trouble. We think,
however, that characterizing the excluded evidence as cumulative and its exclusion
as harmless is implausible on the facts before us. The evidence petitioner was
allowed to present on the issue of his conduct in jail was the sort of evidence that a
jury naturally would tend to discount as self-serving. The testimony of more
disinterested witnesses—and, in particular, of jailers who would have had no
particular reason to be favorably predisposed toward one of their charges—would
quite naturally be given much greater weight by the jury. Nor can we confidently
conclude that credible evidence that petitioner was a good prisoner would have had
no effect upon the jury’s deliberations. The prosecutor himself, in closing
argument, made much of the dangers petitioner would pose if sentenced to prison,
and went so far as to assert that petitioner could be expected to rape other inmates.
Under these circumstances, it appears reasonably likely that the exclusion of
evidence bearing upon petitioner’s behavior in jail (and hence, upon his likely
21
future behavior in prison) may have affected the jury’s decision to impose the death
sentence. Thus, under any standard, the exclusion of the evidence was sufficiently
prejudicial to constitute reversible error.
Id. at 7–8.
Clearly, the facts here do not align with those in Skipper. At the resentencing hearing, the
prosecutor focused his closing arguments on the facts of the crime itself. While the prosecutor did
briefly comment on Dunlap’s future dangerousness, the comment was aimed at convincing the
jury to consider Dunlap’s future dangerousness to society, not in prison, when considering the
propensity aggravator. Unlike in Skipper, the prosecutor did not state that Dunlap would be a
danger to other inmates or prison staff. Additionally, Dunlap had a “disinterested witness,”
Cunningham, describe Dunlap as lacking the potential for future dangerousness within the prison
system. The additional evidence Dunlap now argues should have been presented at the
resentencing hearing comes much closer to “cumulative” than the additional evidence in Skipper.
Again, while the additional testimony of Dunlap’s cellmate and others may have offered a more
recent picture of Dunlap’s dangerousness in a prison setting, we remain unconvinced it establishes
a reasonable probability that Dunlap would not have received a death sentence.
Accordingly, we conclude that the district court did not err when it concluded that Dunlap’s
defense team was not ineffective when they failed to present evidence from Caribou County Jail
personnel and inmates.
d. The district court correctly concluded that Dunlap was not prejudiced by
his defense team’s cross-examination and rebuttal of Matthews.
Dunlap next argues that his defense team failed to adequately cross-examine and rebut
Matthews’ testimony. The district court found that it was
an extremely close call concerning whether the Dunlap Defense Team’s
performance relative to the cross-examination of Dr. Matthews, their decision not
to call Dr. Beaver to rebut Dr. Matthews’ testimony[,] and their decision not to call
others affiliated with IMSI such as Dr. Khatain, Dr. Sombke, Creswell[,] and others
constituted deficient performance under the first Strickland prong. While the
[c]ourt recognizes that many of these determinations can be viewed as strategic and
professional judgment determinations, it also seems to this [c]ourt that some
additional effort should have been made to minimize Dr. Matthews’ testimony.
The district court further recognized that Matthews was a particularly damaging witness, noting
that
[w]hile this [c]ourt did not have the opportunity to see Dr. Matthews testify live,
the [c]ourt’s review of Dr. Matthews’ testimony established, at least in this [c]ourt’s
22
mind, that Dr. Matthews was a powerfully persuasive expert. He had a way of
expressing himself that was very confident, authoritative, and compelling, perhaps
even to a greater degree than other experts and/or mental health witnesses whose
testimony the [c]ourt reviewed from the resentencing or even observed live at the
evidentiary hearing.
However, the district court did not reach a finding as to whether Dunlap’s defense team performed
deficiently; “[r]ather,” the district court concluded, “regardless of how this [c]ourt may have come
down on the issue of deficient performance, Dunlap has failed to establish prejudice.”
On appeal, Dunlap makes several related arguments, but each comes down to the same
essential contention: that Archibald failed to adequately prepare for his cross-examination of
Matthews. Dunlap argues that the defense team failed to provide a DVD copy of Matthews’
interview of Dunlap to Beaver in time for Beaver to review the interview and thus prevented
Beaver from assisting the defense team in preparing them to cross-examine Matthews. Dunlap also
faults Archibald for failing to sit in on the interview or review the DVD himself.
Dunlap next argues that Archibald should have “ask[ed] Matthews to explain Khatain’s
numerous notes in [Dunlap]’s IMSI files,” in order to rebut Matthews’ testimony and prevent
Matthews from “undermining Beaver’s opinion.” Had Archibald asked Matthews about the notes,
Dunlap contends, it would have been obvious that Khatain had seen Dunlap on a regular basis and
made Beaver’s reliance on Khatain’s notes more credible.
Finally, Dunlap argues that the defense team thoroughly failed to rebut Matthews’
“damning” testimony by failing to adequately cross-examine Matthews or call witnesses—both
expert and fact—to rebut Matthews. Dunlap points to the defense team’s failure to call Beaver to
the stand again after Matthews had testified, claiming that Beaver could have “provide[d
sur]rebuttal testimony.” Dunlap also contends that the defense team could have called Khatain,
Sombke, or others to rebut Matthews’ testimony that Dunlap “convincingly faked his mental
illness and fooled IMSI mental health professionals into believing he was mentally ill, and they
only recognized he was faking it when he told them.” Dunlap also points to the district court’s
characterization of Matthews as a particularly persuasive witness and argues that “[w]here even
the district judge fell prey, any cursory review of Matthews’ testimony reveals how damaging it
was to [Dunlap]’s case left unchallenged,” thus establishing prejudice under Strickland.
The State contends that Archibald did prepare for the cross-examination of Matthews. The
State argues that the reason the defense team did not review the DVDs prior to Matthews’
testimony was “because of other priorities associated with the resentencing that had already
23
commenced.” Archibald’s performance was not deficient, the State claims, due to “the time
restraints that were imposed by Judge Harding for the resentencing, counsels’ need to focus upon
other tasks, and counsels’ reliance upon Dr. Beaver to review the tapes before he testified . . . .”
The State also points out that “Archibald attempted to attend the interview with Dunlap, but was
asked by Dr. Matthews not to be in the same room during the interview.”
The State next argues that Archibald made a strategic decision “to not highlight” Matthews’
testimony regarding Khatain’s notes “because twelve clinic visits as opposed to five clinic visits
over the course of five years is hardly a significant difference, particularly when Dr. Matthews
concluded his statement with ‘I don’t actually know [how many times Khatain examined
Dunlap].’ ” The State also contends that the defense team’s decision not to call Beaver back to the
stand to rebut Matthews was a “tactical decision.” The State maintains that “a plethora of expert
mental health evidence was presented to the jury by both the [prosecution] and Dunlap from the
time he was a child through the time of the resentencing” and any additional fact witnesses Dunlap
now argues the defense team should have called to the stand would simply have offered repetitive
evidence.
In reply, Dunlap argues that “the State’s challenge to the district court’s deficiency finding
is not before this Court.” However, like the district court below, we need not reach the question of
deficient performance because we conclude Dunlap has failed to establish prejudice.
“[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699–
700. Thus, “there is no reason for a court deciding an ineffective assistance claim
to approach the inquiry in the same order or even to address both components of
the inquiry if the defendant makes an insufficient showing on one.” Id. The United
States Supreme Court has stated: “If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.” Id.Dunlap VI, 159 Idaho at 297, 360 P.3d at 306.
Regarding the DVDs of Matthews’ interview, Dunlap has provided no facts to support that
the DVD could have been provided to Beaver sooner than it was. Dunlap admits that, once his
defense team possessed the interview DVDs, the DVDs “were overnighted to Beaver.” The only
way the defense team could have gotten more time to review the DVD was if the defense team had
moved for another continuance. However, the district court found that the defense team’s belief
that another continuance would not have been granted was reasonable: “[t]his opinion was a direct
24
product of previous statements made by the trial court.” Because the motion would almost certainly
not have been granted, Dunlap was not prejudiced by his defense team’s failure to move for a
continuance. See Abdullah, 158 Idaho at 487, 348 P.3d at 102.
As for Archibald’s failure to sit in on the interview, this Court has already found that this
was not deficient performance:
Dunlap argues that he was denied effective assistance of counsel by his attorneys’
decision not to attend Dunlap’s interview with Dr. Matthews . . . . Significantly,
however, the U.S. Supreme Court explicitly observed that [Estelle] did not address
the presence of counsel during the examination, noting that the Court of Appeals
had recognized that “an attorney present during the psychiatric interview could
contribute little and might seriously disrupt the examination.” Thus, [] counsel was
not constitutionally required to be present during Dr. Matthews’ interview . . . .
Dunlap V, 155 Idaho at 387–88, 313 P.3d at 43–44 (quoting Estelle, 451 U.S. at 471 n. 14).
Because this Court already found that Archibald “was not constitutionally required to be present
during Matthews’ interview,” Dunlap is precluded from arguing this “error” prejudiced him during
the instant appeal under the law of the case doctrine:
The law of the case doctrine, which is well settled in Idaho, requires that when an
appellate court, in “deciding a case presented states in its opinion a principle or rule
of law necessary to the decision, such pronouncement becomes the law of the case,
and must be adhered to throughout its subsequent progress, both in the trial court
and upon subsequent appeal[.]” “The underlying purpose of the doctrine is to
‘maintain consistency and avoid reconsideration of matters once decided during the
course of a single, continuing lawsuit . . . .’ ”
State v. Gorringe, ___ Idaho ___, ___, 481 P.3d 723, 727 (2021) (quoting Berrett v. Clark Cnty.
Sch. Dist. No. 161, 165 Idaho 913, 921–22, 454 P.3d 555, 563–64 (2019)). Therefore, Dunlap has
not established prejudice.
Dunlap’s next argument is that Archibald should have asked Matthews to explain Khatain’s
“numerous notes” during cross-examination. While Matthews’ testimony clearly painted Khatain
in an unfavorable light, Matthews was an experienced expert witness and continuously challenged
Archibald’s characterizations of Matthews’ previous testimony on cross-examination. Given this,
it is likely that, had Archibald attempted to ask Matthews more questions, it would have simply
given Matthews further opportunities to undermine Khatain’s treatment and evaluation of Dunlap.
As such, Dunlap has failed to establish prejudice.
We next address Dunlap’s argument that his defense team failed to rebut Matthews’
“damning” testimony by failing to call witnesses—both expert and fact—to rebut Matthews.
25
Dunlap argues specifically that the defense team should have re-called Beaver to the stand as an
expert witness and should have called Khatain and Sombke to the witness stand as “fact witnesses”
to dispute Matthews’ characterization. Given the amount of testimony regarding Dunlap’s mental
illness, from his family members as well as Cunningham and Beaver, we cannot say that the
additional testimony of one or even all three potential witnesses would have swayed the jury to
impose a sentence less than death. Weighing the evidence that could have been offered against
what was offered at the resentencing hearing, we conclude that Dunlap has not shown there is a
reasonable probability his sentence would have been different. Dunlap has failed to establish
prejudice.
Because our confidence in Dunlap’s death sentence is not undermined, we hold that the
district court did not err when it concluded that Dunlap was not prejudiced by his defense team’s
cross-examination and rebuttal of Matthews.
e. The district court correctly concluded that Dunlap was not prejudiced by
his defense team’s failure to object to Matthews’ improper bolstering
testimony.
Dunlap next alleges that his defense team was ineffective because they failed to object to
improper bolstering by Matthews. When addressing this claim, the district court stated
[t]he [c]ourt agrees with the assessment of the State that the issue of improper
bolstering relative to Dr. Matthews’ testimony and Dunlap’s Defense Team’s
failure to object, was certainly objectionable and potentially amounted to
ineffective assistance of counsel under the first Strickland prong. However, just as
the Idaho Supreme Court concluded that this was “harmless error” (See Dunlap V,
155 Idaho 345, 371, 313 P.3d 1, 27), this [c]ourt concludes that this failure did not
rise to the level of prejudice under a Strickland analysis.
On appeal, Dunlap argues that “Matthews’ testimony bolstered reports of non-testifying
witnesses that supported his malingering opinion and repeatedly invaded the province of the jury.”
Dunlap concedes that Matthews’ bolstering testimony has already been considered by this Court
and found to be “harmless error” under the fundamental error doctrine; however, Dunlap contends
[n]evertheless, given the importance of Matthews’ testimony to support the State’s
“not mentally ill”/malingering theory—which went virtually unchallenged—it is
hard to imagine Matthews’ improper bolstering had no prejudicial impact on
[Dunlap]’s jury. This is particularly true in the sentencing phase of a capital trial
where only one juror needs to be persuaded to choose life over death. Not only did
counsel fail to present testimony from the IMSI professionals Matthews’ maligned
and who would have contradicted Matthews’ narrative of their incompetence,
counsel did not even bother to present IMSI records written by the same
professionals. These records would have undermined Matthews’ bolstering
26
testimony with evidence IMSI mental health professionals considered but rejected
the notion that [Dunlap] malingered mental illness, only after years of observing
and treating him. The district court’s finding that [Dunlap] was not prejudiced is
clearly erroneous.
The State essentially argues that this Court’s previous determination that the improper
bolstering testimony was harmless error should control the prejudice analysis here. While the State
has recognized that the prejudice standard in Strickland differs from the harmless error standard,
it urges this Court to follow the reasoning from Chapman v. California, 386 U.S. 18 (1967), and
conclude that “[t]here is little, if any difference between . . . whether there is a reasonable
possibility that the evidence complained of might have contributed to the conviction and requiring
the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained. ” Id. at 24. The State further argues that
“Dunlap has failed to establish deficient performance” because “the manner in which witnesses
are cross-examined is a tactical decision.”
Had Dunlap’s defense team timely objected to the bolstering testimony, the trial court
likely would have sustained the objection to such a “clear violation” of IRE 702. See Dunlap V,
155 Idaho at 370, 313 P.3d at 26. Thus, Dunlap has established deficient performance. See
Abdullah, 158 Idaho at 530, 348 P.3d at 145. In fact, this Court previously determined Matthews’
bolstering testimony to have been error. Dunlap V, 155 Idaho at 370, 313 P.3d at 26. It therefore
follows that Dunlap’s counsel was ineffective in not objecting to Matthews’ bolstering testimony.
However, this Court has already found that the admission of evidence through Matthews’ improper
bolstering was harmless. Id. at 371, 313 P.3d at 27 (“Although [Matthews’ bolstering] constituted
prosecutorial misconduct, we find the error to be harmless.”). Under this Court’s enunciation of
the “harmless error” test, “[h]armless error is ‘error unimportant in relation to everything else the
jury considered on the issue in question, as revealed in the record.’ ” State v. Garcia, 166 Idaho
661, 674, 462 P.3d 1125, 1138 (2020) (quoting Yates v. Evatt, 500 U.S. 391, 403 (1991)). “Proper
application of the Yates two-part test requires weighing the probative force of the record as a whole
while excluding the erroneous evidence and at the same time comparing it against the probative
force of the error.” Id. “When the effect of the error is minimal compared to the probative force of
the record establishing guilt ‘beyond a reasonable doubt’ without the error, it can be said that the
error did not contribute to the verdict rendered and is therefore harmless.” Id. (quoting Yates, 500
U.S. at 404–05).
27
Thus, a finding of harmless error required that this Court conclude that “the error did not
contribute to the verdict rendered . . . .” See id. (italics added). If an error did not contribute to the
imposition of the death sentence, it cannot be said “it is ‘reasonably likely’ the result would have
been different” without the error. See Harrington, 562 U.S. at 111 (quoting Strickland, 466 U.S.
at 696).
Therefore, we necessarily hold that the district court did not err when it concluded that
Dunlap’s defense team was not ineffective for failing to object to Matthews’ improper bolstering
testimony.
f. The district court correctly concluded that Dunlap’s defense team was not
ineffective in relying on Dunlap’s family’s testimony and Dunlap’s
allocution to show remorse.
Dunlap next contends his defense team should have introduced more evidence showing his
remorse. On the final day of Dunlap’s resentencing hearing, Dunlap presented his allocution
statement to the jury. Mark Dunlap, Dunlap’s brother, also testified at the resentencing to the
remorse felt by Dunlap and his family. Parmenter testified at the second evidentiary hearing that
Mark’s testimony was particularly moving and emotional and seemed to resonate with the jury
and “bring tears to their eyes.”
The district court found that the defense team had knowledge of a letter written by Dunlap
to Tonya Crane’s husband. Parmenter explained that the way the letter had been written, including
Dunlap’s discussion of his medications and issues with his ex-wife, “might have been part of the
reason . . . that we might not have submitted” it into evidence. Parmenter also acknowledged that
it was the defense team’s “call” on whether to call additional witnesses that could testify to
Dunlap’s remorse. The district court stated:
While this [c]ourt may well have used a combination of family testimony
concerning Dunlap’s remorse, Dunlap’s allocution, and some other collateral
witnesses to bolster this remorse testimony, the [c]ourt cannot say that the Dunlap
Defense Team’s exercise of professional judgment in determining to rely heavily,
if not exclusively, upon family testimony and Dunlap’s allocution, was deficient.
The district court then concluded that Dunlap had failed to show prejudice as well because it was
not substantially likely that the presentation of additional remorse evidence would have changed
the outcome.
On appeal, Dunlap argues that due to the crucial nature of remorse evidence, Dunlap’s
resentencing counsel should have presented additional evidence, including the letter Dunlap wrote
28
the victim’s husband. Dunlap also points out that counsel were aware that, at the time he gave his
allocution statements, Dunlap had a flat affect and was unable to express his true remorsefulness.
Dunlap argues that his counsel knew the allocution statement was strange and did not go over well
with the jury, and that counsel should have reevaluated what other remorse evidence they knew to
be in existence and could be presented to the jury. Finally, Dunlap argues that due to the powerful
nature of remorse evidence, counsel’s failure was prejudicial because at least one juror may have
struck the balance in favor of life over death.
In response, the State first contends that Dunlap improperly expanded his remorse claim
on appeal by arguing evidence in addition to the letter to the victim’s husband should have been
admitted. The State argues that the district court’s decision on this issue should be affirmed on this
basis alone. The State next asserts that there were strategic reasons defense counsel chose not to
submit the letter to the jury. The State also points to Parmenter’s statements that, while aware of
other potential witnesses that could have been called, the defense team chose not to because of
Mark’s compelling testimony and Dunlap’s allocution. The State contends that these decisions by
the defense team were purely strategic and tactical, and as such may not be second-guessed. (Citing
Abdullah, 158 Idaho at 500, 348 P.3d at 115.)
As a preliminary matter, we reject the State’s contention that Dunlap is raising new
arguments on appeal. Specifically, the State maintains that Dunlap’s Petition only claimed
deficient performance with respect to Dunlap’s letter to the victim’s husband. This is inaccurate.
At the close of the evidentiary hearing on the ineffective assistance of counsel claims, Dunlap
submitted proposed findings of fact and conclusions of law to the district court. Dunlap specifically
discussed and objected to counsel’s failure to present evidence of the letter, in addition to calls to
local radio stations expressing remorse and conversations Dunlap had with inmates at the Caribou
County Jail expressing remorse. Therefore, we conclude that Dunlap has properly preserved this
issue and may argue that remorse evidence outside of the letter to the victim’s husband should
have been introduced.
However, “strategic and tactical decisions will not be second guessed or serve as a basis
for post-conviction relief under a claim of ineffective assistance of counsel unless the decision is
shown to have resulted from inadequate preparation, ignorance of the relevant law or other
shortcomings capable of objective review.” Abdullah, 158 Idaho at 500, 348 P.3d at 115 (quoting
Pratt v. State, 134 Idaho 581, 584, 6 P.3d 831, 834 (2000)). “This Court held, in State v. Row, that
29
counsel is not required to investigate a defendant’s ‘entire life in order to objectively present . . .
mitigation evidence’ and that decisions regarding mental health and allocution statements are
‘strictly strategic and shall not be second-guessed by this Court.’ ” Dunlap V, 155 Idaho at 388,
313 P.3d at 44 (citing Row, 131 Idaho at 313, 955 P.2d at 1092).
Here, Parmenter noted that the letter Dunlap wrote to the victim’s husband could be
troubling to the jury: it contained references to Dunlap’s medications, as well as his refusal to be
taken to a mental hospital and issues he was having with his ex-wife. As found by the district court,
Parmenter’s decision not to submit the letter was a strategic or tactical decision made in order to
limit distractions from Dunlap’s family’s testimony and his allocution statement. Further, any
additional remorse evidence would not have created a substantial likelihood that the outcome
would have been different. Parmenter and Archibald both testified that they, as well as the jury,
were emotionally moved by Mark Dunlap’s testimony regarding Dunlap’s and his family’s
remorse.
Therefore, we hold that the district court did not err when it concluded that Dunlap’s
defense team was not ineffective in relying on Dunlap’s family’s testimony and Dunlap’s
allocution to show remorse.
g. The district court correctly concluded that Dunlap’s defense team was not
ineffective in arguing for admission of the 1995 note from Dr. Estess.
Dunlap next faults his defense team for not admitting the 1995 medical chart notes from
Dr. Michael Estess. At the resentencing hearing, Parmenter sought to introduce the medical chart
notes, which indicated Dunlap was mentally ill. Judge Harding declined to admit the notes. Estess
had purportedly rendered an opposite opinion in 1992 that Dunlap was not mentally ill which had
been admitted (in error) in Dunlap’s initial case. See Dunlap V, 155 Idaho at 379, 313 P.3d at 35.
The district court concluded that Dunlap had “failed to establish what more Parmenter or the
Dunlap Defense Team could have done to prevail” in getting this evidence admitted. The district
court continued: “Judge Harding appeared to be very entrenched relative to his position on this
issue and his concern for error if this material was relied upon by Dr. Beaver.” The district court
concluded that Dunlap failed to establish deficiency or prejudice due to the defense team’s failure
to adequately argue for admission of the note.
Before the district court, Dunlap filed a motion to reconsider on the ineffective assistance
of counsel claims, arguing in part that the district court’s finding that Dunlap “failed to show what
arguments counsel could have made to admit [the note] is not supported by competent and
30
substantial evidence.” The thrust of Dunlap’s argument is that, had Parmenter argued to Judge
Harding the importance of the 1995 note for mitigation, the note would have significantly rebutted
the State’s malingering theory. Further, Dunlap asserted that Parmenter’s failure to raise these
arguments was “facially deficient and prejudicial.”
In the State’s response to Dunlap’s motion to reconsider, the State argued that Dunlap
raised the issue of Estess’ 1995 note for the first time. The State next pointed out that the district
court found that Parmenter made an “aggressive argument” in seeking to admit the note at the
resentencing hearing, and it is unlikely that any additional argument advanced by Parmenter would
have persuaded Judge Harding to admit it. The district court denied Dunlap’s motion to reconsider,
finding that Dunlap’s defense team could have done nothing more to convince Judge Harding to
admit the 1995 notes from Estess.
On appeal, Dunlap essentially reiterates his argument that counsel should have done more
to get Estess’ 1995 note admitted because it contained compelling mitigation evidence. Dunlap
argues that this evidence “would have enhanced the strength of [Dunlap’s] mental illness theme,
undermined Matthews’ credibility, and refuted the malingering theory.”
In response, the State again alleges that Dunlap has failed to preserve the issues regarding
Estess’ 1995 note because there was “no mention of the claim during the evidentiary hearing, [and]
there was [also] no mention of Dr. Estess.” Next, the State asserts that “it is difficult to understand
what more Parmenter could have done to convince [Judge Harding] to overrule the [S]tate’s
objection.” Further, the State argues that “merely because Parmenter might have made the
additional arguments advocated by Dunlap for the first time on appeal does not mean the district
court’s finding was clearly erroneous.”
As a preliminary matter, we conclude that Dunlap preserved his argument regarding the
1995 treatment note from Estess. Dunlap raised the issue in both his Petition and Closing
Argument. Furthermore, the district court fully decided the issue in its conclusions of law, holding
that counsel were neither deficient nor that prejudice had resulted. “To state an arguable claim on
appeal, ‘both the issue and the party’s position on the issue must be raised before the trial court for
it to be properly preserved . . .’ ” State v. Barr, 166 Idaho 783, 786, 463 P.3d 1286, 1289 (2020),
as amended (June 25, 2020) (quoting State v. Gonzalez, 165 Idaho 95, 99, 439 P.3d 1267, 1271
(2019)). “An exception to this rule, however, has been applied by this Court when the issue was
argued to or decided by the trial court.” State v. DuValt, 131 Idaho 550, 553, 961 P.2d 641, 644
31
(1998) (italics added). Not only did Dunlap raise the issue at multiple junctures below, but the
district court clearly decided the issue. The State even concedes in its Respondent’s Brief that
Dunlap’s Petition raised the issue, stating that “in his Petition, Dunlap contends counsel were
ineffective by failing to argue admission of Dr. Estess’ 1995 treatment notes.” Thus, the State’s
argument that Dunlap failed to preserve this claim is unavailing.
“A trial court has ‘broad discretion’ in determining whether to admit or exclude evidence,
‘and its judgment in the fact finding role will only be disturbed on appeal when there has been a
clear abuse of discretion.’ ” State v. Joy, 155 Idaho 1, 6, 304 P.3d 276, 281 (2013) (quoting State
v. Watkins, 148 Idaho 418, 421, 224 P.3d 485, 488 (2009)). “Where the alleged deficiency is
counsel’s failure to file a motion, a conclusion that the motion, if pursued, would not have been
granted by the trial court, is generally determinative of both prongs of the Strickland test.”
Abdullah, 158 Idaho at 487, 348 P.3d at 102 (quoting Payne, 146 Idaho at 562, 199 P.3d at 137)
(alterations omitted) (italics added).
Here, the district court’s conclusion that Parmenter could not have done anything more to
admit Estess’ 1995 note is supported by the evidence. First, the district court found that Parmenter
“aggressively argued” for the admission of the evidence. That finding of fact is acknowledged by
both parties. Additionally, the district court noted that Judge Harding was “entrenched” in his
belief that any evidence related to Estess should not be admitted. Thus, even if Parmenter would
have made the argument now presented by Dunlap on appeal, it “would not have been granted by
the trial court.” See Abdullah, 158 Idaho at 530, 348 P.3d at 145. As such, Dunlap has not
established that Parmenter’s argument was deficient. When a lawyer does all that can be done and
is unsuccessful, it cannot be said his representation was ineffective. See id.
We therefore hold that the district court did not err when it concluded that Dunlap’s defense
team was not ineffective in arguing for admission of the 1995 note from Estess.
3. The district court did not err when performing the prejudice analysis under
Strickland because it considered the totality of the evidence.
Finally, Dunlap argues that the district court considered counsel’s deficiencies in isolation
to determine that Dunlap had not been prejudiced, but that determining prejudice requires
consideration of all the evidence presented to the resentencing jury and in post-conviction
proceedings. Dunlap asserts that his defense team’s overall “deficiencies had a pervasive effect on
the inferences to be drawn from the evidence related to [Dunlap’s] mental illness, and dramatically
altered the evidentiary picture before the jury.”
32
In determining whether a defendant received ineffective assistance of counsel, the court
“must consider the totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 695.
Some of the factual findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in different ways. Some errors
will have had a pervasive effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, and some will have had an isolated, trivial
effect. Moreover, a verdict or conclusion only weakly supported by the record is
more likely to have been affected by errors than one with overwhelming record
support. Taking the unaffected findings as a given, and taking due account of the
effect of the errors on the remaining findings, a court making the prejudice inquiry
must ask if the defendant has met the burden of showing that the decision reached
would reasonably likely have been different absent the errors.
Id. at 695–96.
Here, the district court concluded that Dunlap’s defense team was not deficient under
Strickland’s first prong in: investigating and presenting mitigation evidence of Dunlap’s family
history and background; presenting evidence of the connection between Dunlap’s mental illness,
medication, and behavior at IMSI; relying on Dunlap’s allocution and family testimony for
remorse; and inability to admit Estess’ 1995 treatment note. Because we agree that these were not
“errors” under Strickland, we conclude the district court did not err in refusing to consider these
“errors” collectively.
The district court explicitly found that Dunlap’s defense team was deficient in their
investigation into Caribou County Jail personnel and inmates, and assumed without deciding that
the defense team performed deficiently in failing to adequately cross-examine and rebut Matthews
and failing to object to Matthews’ improper bolstering. Thus, under a collective approach, the
district court should have considered the cumulative effect of each of these “errors” in determining
whether Dunlap was prejudiced by the deficient performance.
The district court did so. In finding the defense team’s error in investigating the Caribou
County Jail personnel and inmates did not amount to prejudice, the district court explicitly stated
it “ha[d] reviewed the[] affidavits and considered [the] testimony coupled with the entirety of the
evidentiary hearing” as well as “the entirety of the Dunlap resentencing and upon doing so th[e
c]ourt [wa]s not convinced that the introduction of this evidence” “was of such importance as to
undermine the [c]ourt’s confidence in the outcome of the resentencing hearing.” (Italics added.)
The district court made the same type of statements when discussing the defense team’s failure to
adequately cross-examine and rebut Matthews: “The [c]ourt has had the benefit of reading and
33
considering the entire resentencing transcript. The [c]ourt has likewise had the benefit of reviewing
and considering the evidence propounded by Dunlap at the evidentiary hearing . . . .”
The district court did not make such statements when discussing the defense team’s failure
to object to Matthews’ bolstering statements; however, as discussed above, this Court already
determined Matthews’ improper bolstering was harmless and thus “did not contribute” to the
imposition of Dunlap’s death sentence. See Garcia, 166 Idaho at 674, 462 P.3d at 1138 (stating
that a finding of harmless error required that this Court find that “the error did not contribute to
the verdict rendered . . . .”) (Italics added.)
In sum, we hold that the district court did not err when conducting the prejudice analysis
under Strickland because it considered the impact the totality of the alleged ineffective acts by
counsel.
IV. CONCLUSION
For the reasons stated above, we affirm the district court’s dismissal of Dunlap’s petition
for post-conviction relief.
Chief Justice BEVAN, Justices BRODY, MOELLER, and SIMPSON, J. Pro Tem,
CONCUR.
DECISION ON REHEARING
STEGNER, Justice.
After we initially released this opinion, Dunlap petitioned this Court for rehearing on the
Brady issue, arguing that we should not have considered the defense team’s notes as the notes were
not before the district court until the second evidentiary hearing, after the district court had already
denied Dunlap’s Brady claim. We granted rehearing and allowed the parties the opportunity to
argue their respective positions. Having considered the issue, we decline to allow strategy to
prevail at the expense of truth. In doing so, we reject Dunlap’s claim that this Court should be
precluded from considering evidence that bears on the merit of the Brady claim now on appeal.
The parties agreed below to bifurcate the case into two evidentiary hearings: one for the
Brady/Napue claim and one for the ineffective assistance of counsel claim. The parties were not
required to do so, and defense counsel cannot now complain that their strategy did not yield the
result they sought. Further, if we were to remand the Brady issue to the district court, nothing
would prevent the district court from considering all the evidence it has already heard, including
evidence from the second evidentiary hearing which clearly shows Dunlap’s counsel were aware
34
of facts they claim were withheld by the prosecution. We decline to adopt a rule that would bar us
from considering—on de novo review—evidence which a district court could freely consider on
remand (which we could then consider on a subsequent appeal).
Chief Justice BEVAN, Justices BRODY, MOELLER, and SIMPSON, J. Pro Tem,
CONCUR.
35