Capone v. State ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49437
CHARLES ANTHONY CAPONE, )
) Filed: April 21, 2023
Petitioner-Appellant, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
STATE OF IDAHO, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent. )
)
Appeal from the District Court of the Second Judicial District, State of Idaho, Latah
County. Hon. Carl B. Kerrick, District Judge.
Judgment summarily dismissing third amended petition for post-conviction relief,
affirmed.
Silvey Law Office Ltd; Greg S. Silvey, Boise, for appellant. Greg S. Silvey argued.
Hon. Raúl R. Labrador, Attorney General; Kale D. Gans, Deputy Attorney General,
Boise, for respondent. Kale D. Gans argued.
________________________________________________
HUSKEY, Judge
Charles Anthony Capone alleges the district court erred by summarily dismissing his third
amended petition for post-conviction relief. Capone’s third amended petition raised various
constitutional challenges to his criminal conviction, including prosecutorial misconduct and
ineffective assistance of counsel claims. Capone argues all his claims were properly brought in
his post-conviction case and alleged a genuine issue of material fact such that they should not have
been summarily dismissed. All of Capone’s prosecutorial misconduct claims are forfeited
pursuant to Idaho Code § 19-4901(b) because they could have been raised on direct appeal and
they do not fall within the exception to this general rule provided by the statute. Alternatively,
none of the prosecutorial misconduct claims allege a genuine issue of material fact. Capone’s
claim of ineffective assistance of trial counsel is disproved by the record and, therefore, fails to
1
allege a genuine issue of material fact. The district court did not err, and the judgment summarily
dismissing Capone’s third amended petition for post-conviction relief is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the Idaho Supreme Court’s opinion for Capone’s appeal
in his underlying criminal case:
Capone and Anderson were married in September of 2009. The two
separated that December and Anderson filed for divorce. Anderson began
receiving harassing phone calls following the separation and her car was vandalized
multiple times. At the time, Capone owned Palouse Multiple Services, a repair
shop in Moscow, Idaho. Capone repaired Anderson’s car after it was vandalized.
Capone was working on Anderson’s car on Friday, April 16, 2010. At the time,
Anderson was driving a white Yukon that belonged to a friend of Capone.
Anderson drove the Yukon to Capone’s shop to pick up her car. Anderson
became upset when she learned her car was not ready. Anderson went to run some
errands while Capone continued to work on the car.
Anderson bought some beer with Capone’s debit card and then, according
to Capone, ran off with a man named Vince. No one saw or heard from Anderson
after her visit with Capone. Anderson was reported missing after she failed to show
up for work the following Monday.
On April 20, 2010, Capone was interviewed by the police. During this
interview, Capone admitted that he had made the harassing phone calls to
Anderson’s phone. The following day, the Anderson family’s search for her led to
their discovery of the Yukon in Lewiston. Anderson’s purse was inside the vehicle.
On May 6, 2010, Capone was arrested for a federal firearm violation
unrelated to Anderson’s disappearance. While incarcerated on this charge, Capone
made several incriminating statements to cellmates Brent Glass and Joshua Voss
about his role in Anderson’s disappearance.
After an investigation that lasted for three years, on May 1, 2013, Capone
and David Stone were charged with first degree murder and related crimes in
connection with Anderson’s disappearance. Following a preliminary hearing
where both Capone and Stone were bound over on all charges, Stone entered into a
plea agreement with the State in which he agreed to testify against Capone in
exchange for dismissal of the murder charge against him.
Before trial, the State filed a motion in limine regarding several evidentiary
issues. The State sought to prevent Capone from introducing evidence of prior
felony convictions to impeach the testimony of Glass and Voss. Pursuant to Idaho
Rule of Evidence 404(b), the State also gave notice of its intent to use evidence of
a past strangulation attempt and federal firearm crimes by Capone. After hearing
argument, the [trial] court ruled that Glass and Voss’s prior felony convictions for
burglary were not relevant to their credibility and reserved its ruling on the
admissibility of the 404(b) evidence until trial.
2
At trial, the State relied heavily on Stone’s testimony. Stone testified that
he was at Capone’s shop on April 16, 2010. Capone went outside to talk with
Anderson. Stone heard a noise and went outside to find Capone strangling
Anderson. Anderson was still moving and Stone asked Capone what he was doing.
Capone instructed Stone to get a tarp. Stone went inside and searched for a tarp.
When he came back out, Anderson was dead. Stone testified that he and Capone
wrapped Anderson’s body in the tarp and a chain and drove to Lewiston, where
they threw her body into the river from a bridge.
The jury found Capone guilty of all charges. Following the verdict, Capone
learned of a statement Stone made to Tyler Byers while the two were cellmates in
July of 2013. Stone told Byers that they would not find Anderson’s body in the
river because she was not in the river. Capone filed a motion for a new trial based
on this newly discovered information. After hearing the motion, the [trial] court
found that the new evidence did not merit a new trial as it was merely impeachment
evidence and likely would not produce an acquittal. Capone timely appealed his
conviction and the denial of his motion for a new trial.
State v. Capone, 164 Idaho 118, 121-22, 426 P.3d 469, 472-73 (2018).
On appeal, Capone argued the trial court made several errors, including denying his motion
to impeach Glass and Voss with their previous felony burglary convictions and denying his motion
for a new trial. Id. at 123, 426 P.3d at 474. The Idaho Supreme Court held that while Glass’s and
Voss’s previous felony convictions were relevant to their credibility, any error in the exclusion of
that evidence was harmless because:
[b]oth Glass and Voss testified that they were incarcerated at the time Capone made
incriminating statements to them. In light of the jury’s awareness of their
incarceration and Stone’s testimony that he saw Capone commit the murder, we are
convinced beyond a reasonable doubt that the error did not contribute to the
verdicts.
Id. at 127, 426 P.3d at 478. The Court additionally found the trial court did not err in concluding
that Capone failed to demonstrate the new evidence probably would have produced an acquittal,
since:
Capone spent a full day impeaching Stone with inconsistent statements he had made
to police before November of 2013. At trial, Stone repeatedly stated that he had
been living a lie and consistently lied to others about Anderson’s disappearance
before November 2013 when he decided to tell the police the truth. Stone’s
statement to Byer was made during the time in which Stone admitted to having lied
about what happened to Anderson.
Id. at 128, 426 P.3d at 479. The Court affirmed Capone’s judgment of conviction and the trial
court’s order denying Capone’s motion for a new trial. Id.3
Capone filed a petition for post-conviction relief and the district court appointed post-
conviction counsel. With the assistance of counsel, Capone filed a second and then a third
amended petition for post-conviction relief. The third amended petition included claims of
prosecutorial misconduct and ineffective assistance of trial counsel for failing to seek additional
records of dives in the Snake River by officials to find Anderson’s body. Capone provided two
personal affidavits and an affidavit from his post-conviction counsel as support for his claims.
The State moved for summary dismissal of Capone’s third amended petition for post-
conviction relief. The State argued that Capone’s prosecutorial misconduct claims were forfeited
pursuant to I.C. § 19-4901(b) because he could have raised the claims on direct appeal in his
underlying criminal proceeding and did not show why the claims raised a substantial doubt about
his guilt and, in the exercise of due diligence, why he could not raise the claims sooner.
Alternatively, the State argued that even if Capone had not forfeited his prosecutorial misconduct
claims, they were properly dismissed because each claim was conclusory, unsupported by any
admissible evidence, and failed to allege a genuine issue of material fact. Finally, the State alleged
that Capone’s ineffective assistance of counsel claim was clearly disproven by the record because
trial counsel’s decision not to pursue additional dive records was a reasonable trial strategy. The
State moved the district court to take judicial notice of the record in the underlying criminal case
and attached some documents from the criminal appellate record to the motion.1
Capone opposed the State’s motion for summary dismissal, arguing generally that his
claims were not barred by I.C. § 19-4901(b) and raised genuine issues of material fact. Capone
did not specifically address the State’s arguments that the claims were forfeited because they could
have been brought on direct appeal or could have been raised in earlier proceedings. The State
filed a reply, reiterating many of its previous arguments, and included affidavits from both of
Capone’s trial counsel. In one of the affidavits, Capone’s trial counsel attested that it was a
strategic decision not to seek out additional dive records or request additional searches of the Snake
River because such actions had the potential to turn a positive fact (the lack of evidence
1
The district court did not enter an order granting the State’s motion to take judicial notice.
However, the district court’s dismissal order plainly quoted and relied on the documents provided
by the State, and specifically cited the State’s motion to take judicial notice. Capone did not object
to the motion or the district court’s reliance on any documents from the record in the district court
or on appeal.
4
corroborating Stone’s testimony about where Anderson’s body had been) into discovery of
inculpatory evidence.
The district court held a summary dismissal hearing. During the hearing, Capone did not
address the applicability of I.C. § 19-4901(b). The district court found Capone’s prosecutorial
misconduct claims were forfeited pursuant to I.C. § 19-4901(b) because they could have been
raised on direct appeal. The district court further held that Capone did not qualify for the exception
to forfeiture set forth in the statute because the claims did not raise a substantial doubt about
Capone’s guilt and Capone did not explain why he did not raise the claims earlier. The district
court further found that even if Capone’s prosecutorial misconduct claims were properly raised in
the post-conviction action, Capone failed to provide admissible evidence to support his otherwise
conclusory allegations of error or allege a genuine issue of material fact that the alleged errors
would have had any impact on the outcome of the underlying criminal case. The district court
similarly found Capone’s ineffective assistance of counsel claim did not allege a genuine issue of
material fact because the record showed that his trial counsel made the strategic decision not to
seek additional dive records or request additional searches of the Snake River. Accordingly, the
district court entered a judgment summarily dismissing Capone’s third amended petition for post-
conviction relief. Capone appeals.
II.
STANDARD OF REVIEW
On appeal from an order of summary dismissal, we apply the same standards utilized by
the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if
true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929
(2010); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). Over questions
of law, we exercise free review. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069
(2009); Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).
III.
ANALYSIS
Capone argues the district court erred by summarily dismissing his third amended petition
for post-conviction relief because his prosecutorial misconduct claims were not forfeited pursuant
to I.C. § 19-4901(b) and raised genuine issues of material fact. Additionally, Capone argues the
5
district court erred by summarily dismissing his ineffective assistance of trial counsel claim
because he alleged a genuine issue of material fact. The State asserts the district court did not err.
A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C. § 19-
4907; Rhoades, 148 Idaho at 249, 220 P.3d at 1068; State v. Bearshield, 104 Idaho 676, 678, 662
P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992).
Like a plaintiff in a civil action, the petitioner must prove by a preponderance of evidence the
allegations upon which the request for post-conviction relief is based. Goodwin v. State, 138 Idaho
269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a
complaint in an ordinary civil action. Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004).
A petition must contain much more than a short and plain statement of the claim that would suffice
for a complaint under Idaho Rule of Civil Procedure 8(a)(1). Rather, a petition for post-conviction
relief must be verified with respect to facts within the personal knowledge of the petitioner, and
affidavits, records, or other evidence supporting its allegations must be attached or the petition
must state why such supporting evidence is not included with the petition. I.C. § 19-4903. In
other words, the petition must present or be accompanied by admissible evidence supporting its
allegations or the petition will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d
1169, 1172 (Ct. App. 2011).
Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction
relief, either pursuant to a motion by a party or upon the court’s own initiative, if it appears from
the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact,
together with any affidavits submitted, that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. When considering summary dismissal,
the district court must construe disputed facts in the petitioner’s favor, but the court is not required
to accept either the petitioner’s mere conclusory allegations, unsupported by admissible evidence,
or the petitioner’s conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.
App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App. 1986).
Moreover, the district court, as the trier of fact, is not constrained to draw inferences in favor of
the party opposing the motion for summary dismissal; rather, the district court is free to arrive at
the most probable inferences to be drawn from uncontroverted evidence. Hayes v. State, 146 Idaho
353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if
the uncontroverted evidence is sufficient to justify them. Id.6
Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven by
the record of the criminal proceedings, if the petitioner has not presented evidence making a prima
facie case as to each essential element of the claims, or if the petitioner’s allegations do not justify
relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); DeRushé
v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim
for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the
petitioner is not entitled to relief even with all disputed facts construed in the petitioner’s favor.
For this reason, summary dismissal of a post-conviction petition may be appropriate even when
the State does not controvert the petitioner’s evidence. See Roman, 125 Idaho at 647, 873 P.2d at
901.
Conversely, if the petition, affidavits, and other evidence supporting the petition allege
facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be
summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004);
Sheahan, 146 Idaho 104, 190 P.3d 923. If a genuine issue of material fact is presented, an
evidentiary hearing must be conducted to resolve the factual issues. Goodwin, 138 Idaho at 272,
61 P.3d at 629.
A. The District Court Did Not Err by Finding Capone Forfeited His Prosecutorial
Misconduct Claims
Relevant to this appeal, Capone alleged five prosecutorial misconduct claims. Capone
argues the State committed prosecutorial misconduct by: (1) eliciting testimony from Stone which
the State knew was false and failing to correct it pursuant to Napue v. Illinois, 360 U.S. 264 (1959);
and (2) failing to correct Detective Hally’s misconduct, which Stone asserted included witness
intimidation and destroying and falsifying evidence. Capone also brought three claims of
prosecutorial misconduct based on assertions that the State violated Brady v. Maryland, 373 U.S.
83 (1963) by: (1) withholding information that Voss was working as a confidential informant at
the time he testified at trial; (2) withholding information that Glass was facing a “third strike”
prosecution in Washington; and (3) failing to disclose additional dive records of the Snake River
searches for physical evidence of the crime.
The scope of post-conviction relief is limited. Knutsen v. State, 144 Idaho 433, 438, 163
P.3d 222, 227 (Ct. App. 2007). Idaho Code § 19-4901(b) provides, in relevant part, that the remedy
provided by the Uniform Post-Conviction Procedures Act:
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is not a substitute for nor does it affect any remedy incident to the proceedings in
the trial court, or of an appeal from the sentence or conviction. Any issue which
could have been raised on direct appeal, but was not, is forfeited and may not be
considered in post-conviction proceedings, unless it appears to the court, on the
basis of a substantial factual showing by affidavit, deposition or otherwise, that the
asserted basis for relief raises a substantial doubt about the reliability of the finding
of guilt and could not, in the exercise of due diligence, have been presented earlier.
Because “the language of I.C. § 19-4901(b) merely requires that the petitioner could have raised
the claim on direct appeal in the underlying criminal case and failed to do so,” it is not necessary
for a petitioner to have been aware that he could have raised a claim on direct appeal to forfeit the
opportunity to raise the claim in a post-conviction proceeding. Black v. State, 165 Idaho 100, 105,
439 P.3d 1272, 1277 (Ct. App. 2019) (emphasis added).
Idaho appellate courts have repeatedly held petitioners forfeited constitutional claims in
post-conviction actions when the claims could have been raised on direct appeal from the
underlying criminal conviction. In Baldwin v. State, 145 Idaho 148, 177 P.3d 362 (2008), the
Idaho Supreme Court held that Baldwin forfeited his constitutional claim by not raising it on direct
appeal even when the appellate record on direct appeal was meager. Id. at 152 n.4, 177 P.3d at366 n.4. The Supreme Court noted that the meagerness or insufficiency of an appellate record is
generally a result of trial counsel’s inactions and, as a result, the claim was more properly brought
as a claim of ineffective assistance of trial counsel, rather than a substantive constitutional
challenge. See id.; see also Grove v. State, 161 Idaho 840, 850-51, 392 P.3d 18, 28-29 (Ct. App.
2017) (holding petitioner forfeited constitutional claim by not raising it on direct appeal even when
relief was unlikely to be granted under applicable fundamental error review because of insufficient
appellate record). Thus, the appellate courts have expressed that the proper way to challenge
unpreserved, constitutional trial error is through a claim of fundamental error on direct appeal in
the criminal case or through an ineffective assistance of trial counsel claim in a post-conviction
action, not through a substantive constitutional claim in a petition for post-conviction relief. Black,
165 Idaho at 106, 439 P.3d at 1278; see Grove, 161 Idaho at 850-51, 392 P.3d at 28-29.
The Idaho Supreme Court reiterated this standard in Thumm v. State, 165 Idaho 405, 447
P.3d 853 (2019). Thumm raised six claims of prosecutorial misconduct in his post-conviction
petition, including a claim related to the prosecutor’s statements during closing argument in his
underlying criminal case. Id. at 424, 447 P.3d at 872. The prosecutor’s closing argument
referenced a description of the crime scene and alleged Thumm used beer bottles as weapons
8
during the underlying altercation. Id. at 425, 447 P.3d at 873. Thumm argued the State’s
comments constituted prosecutorial misconduct because the State knew the statements were
contrary to the evidence contained in a fingerprint report of the bottles, which was not admitted at
trial and was the only evidence by which Thumm could rebut the prosecutor’s statements. Id. The
report was not admitted at trial because Thumm’s trial counsel objected to the admission of the
report based on the late disclosure of the report.2 Id. at 424, 447 P.3d at 872.
The district court summarily dismissed Thumm’s petition and Thumm appealed. Id. at
411, 447 P.3d at 859. On appeal, Thumm argued the State’s references to his use of the beer
bottles constituted prosecutorial misconduct because Thumm could not rebut the State’s references
without the fingerprint report. Id. at 425, 447 P.3d at 873. He further argued the claim was
properly brought in his post-conviction case rather than on direct appeal from his criminal
conviction because without the fingerprint report in the direct appeal record, the record was
necessarily insufficient to allow a merits review of the claim. Id. The Supreme Court rejected
Thumm’s argument, holding that:
There were no objections at trial to the closing argument referencing the use
of bottles as weapons. As the district court noted, even without [trial counsel’s]
contemporaneous objections to the prosecutor’s misconduct at trial, appellate
counsel could have raised the issue on appeal. In his brief, Thumm presented no
evidence that the issue could not, in the exercise of due diligence, have been
presented earlier. Instead, [Thumm] conclusively states, in a footnote, that the
prosecutorial misconduct claim could not have been raised on appeal because the
fingerprint report was not part of the record. However improper the statement may
have been, Thumm could have raised this issue on direct appeal, based on the very
exclusion of the fingerprint report.
Id. at 426, 447 P.3d at 874. The Court held Thumm forfeited this claim in the post-conviction
proceeding. Id.Taking the statutory and case law into account, if Capone’s prosecutorial misconduct
claims could have been raised on direct appeal, the claims are forfeited pursuant to I.C. § 19-
4901(b) unless Capone can show by substantial facts that the asserted basis for relief raises a
substantial doubt about the reliability of the finding of guilt and could not, in the exercise of due
2
It is not clear whether the trial court granted the motion or whether the State simply agreed
not to use the fingerprint report in its case-in-chief. See Thumm v. State, 165 Idaho 405, 424, 447
P.3d 853, 872 (2019). If the trial court did not grant the motion because the State agreed not to
use the report in its case-in-chief, then there was no ruling precluding Thumm’s counsel from
admitting the report on cross-examination or in the motion for a new trial.
9
diligence, have been presented earlier. A review of the record in this case shows that Capone could
have raised each of his prosecutorial misconduct claims on direct appeal because the factual
support for each of Capone’s claims is drawn from the record in the criminal case. Capone does
not cite to or articulate what, if any, relevant evidence he learned of or obtained post-trial and,
therefore, was unavailable during his direct appeal. Capone also failed to preserve a challenge to
the district court’s findings that the statutory exception to forfeiture provided by I.C. § 19-4901(b)
did not apply, but even if the issue was preserved, Capone fails to show by way of substantial
factual support that the claim casts substantial doubt about the finding of guilt and that the claim
could not have been raised earlier. Each claim will be addressed in turn.
1. Capone’s claim of prosecutorial misconduct based on an alleged Napue
violation
In his third amended petition, Capone alleged the prosecutor committed misconduct
pursuant to Napue when the prosecutor elicited testimony from Stone that the prosecutor knew
was false and then failed to correct the alleged false testimony. Specifically, Capone asserted that
Stone lied about: (1) the number of times he was at Capone’s shop; (2) the shop’s contents (that
there were metal garbage cans, garbage bags, a bleach-based cleaner, and nylon ropes present);
(3) the placement of the Yukon Anderson was driving; (4) that he was able to see Anderson in the
Yukon despite the car having darkly tinted windows; (5) that he attempted to retrieve a chain from
his home; and (6) whether he received a deal for cooperating with the investigation. Capone also
argued the State should have known this testimony was false because of Stone’s unreliability, and
Capone concluded that “by using an inherently unreliable witness, the State violated [his] due
process right to a fair trial.” The district court held this claim was forfeited pursuant to I.C. § 19-
4901(b) because it could have been raised on direct appeal and did not meet the statutory exception
for forfeiture. On appeal, Capone argues the district court erred.
In order to assess whether the district court correctly concluded the claim could have been
raised on direct appeal, we must address the nature of the claim. “A defendant establishes a Napue
violation upon showing: (1) the testimony was false; (2) the prosecutor knew or should have
known it was false; and (3) the testimony was material.” State v. Wheeler, 149 Idaho 364, 368, 233
P.3d 1286, 1290 (Ct. App. 2010). For the purposes of a Napue claim, testimony is material when there
is any reasonable likelihood that the false testimony could have affected the judgment of the jury.
State v. Lankford, 162 Idaho 477, 505-06, 399 P.3d 804, 832-33 (2017).
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The crux of Capone’s claim of prosecutorial misconduct pursuant to Napue is that Stone
was the State’s primary witness but was so unreliable that Stone’s falsity could have affected the
outcome of the jury. Challenges to Stone’s lack of credibility could have been raised on direct
appeal because the evidence on which Capone relies is all drawn from the underlying criminal
record. Capone’s affidavit cites only to documents from the underlying criminal case as factual
support for his claim. Because the facts on which Capone relies are drawn from the underlying
criminal record, the information was available to criminal trial and appellate counsel and, thus, the
claim could have been raised on direct appeal. Moreover, a review of the trial transcript, which
the district court judicially noticed, further indicates the factual support for the claim was available
to criminal trial and appellate counsel and, thus, the claim could have been raised on direct appeal.
For example, during the criminal trial, Capone’s counsel spent a day cross-examining
Stone about the inconsistent statements he made. Capone’s counsel also questioned witnesses
about whether Capone’s shop had metal garbage cans or large garbage can liners and questioned
Stone about whether he was offered an immunity deal for cooperation in the investigation. During
closing argument, Capone’s trial counsel thoroughly discussed Stone’s lack of credibility and that
Stone’s testimony about the placement of the Yukon, the ability to see Anderson through the
Yukon’s tinted windows, and the use of bleach in Capone’s shop had no evidentiary support.
Capone’s trial counsel also reiterated that Stone had been offered an immunity agreement.
Capone’s motion for a new trial similarly addressed Stone’s unreliability, and the denial of that
motion was addressed on direct appeal. Capone, 164 Idaho at 128, 426 P.3d at 479. Moreover,
Capone challenged Stone’s credibility in his motion for a new trial and appealed from the denial
of that motion, demonstrating that the claim could have been raised on direct appeal. Thus,
because the factual basis for the claim was available to both trial and appellate counsel, the district
court did not err in finding the issue could have been raised on direct appeal and was forfeited
pursuant to I.C. § 19-4901(b) unless Capone established the statutory exception to forfeiture
applies to his Napue claim.
In order to argue on appeal that the statutory exception to forfeiture applied to his case,
Capone must have raised the issue in the district court. He must have shown by substantial facts
that: (1) the asserted basis raises a substantial doubt about the reliability of the finding of guilt;
and (2) in the exercise of due diligence, the claim could not have been raised earlier. The district
11
court found Capone failed to make the requisite showing on either prong. The district court did
not err.
In the district court, Capone failed to provide any argument or evidence explaining why
his Napue claim, and for that matter, any of his other prosecutorial misconduct claims, could not,
in the exercise of due diligence, have been presented earlier. In the State’s motion for summary
dismissal, the State explicitly argued that all of Capone’s prosecutorial misconduct claims were
forfeited pursuant to I.C. § 19-4901 because the claims could have been raised on direct appeal
and Capone did not show the statutory exception to forfeiture applied. Although Capone filed a
response, he did not specifically address or provide substantial factual support, argument, or
authority explaining why he could not have brought his Napue or any other of his prosecutorial
misconduct claims earlier.
Similarly, at the summary dismissal hearing, the State again argued that the prosecutorial
misconduct claims could have been raised on direct appeal and that Capone did not show why the
claims could not have been raised earlier. Capone again did not address the State’s arguments.
Generally, issues not raised below may not be considered for the first time on appeal. Sanchez v.
Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Both the issue and the party’s position
on the issue must be raised before the trial court for it to be properly preserved for appeal. State
v. Gonzalez, 165 Idaho 95, 99, 439 P.3d 1267, 1271 (2019). By not addressing why his
prosecutorial misconduct claims could not have been raised earlier, Capone fails to preserve a
challenge to the district court’s finding that he did not show that the I.C. § 19-4901 exception for
forfeiture applied to his Napue claim or any of his other claims of prosecutorial misconduct.
Additionally, the district court can be affirmed on the unchallenged ground. See State v. Goodwin,
131 Idaho 364, 366, 956 P.2d 1311, 1313 (Ct. App. 1998) (upholding denial of motion to suppress
based on trial court’s alternative ruling that was unchallenged on appeal).
Because the district court found the Napue claim of prosecutorial misconduct could have
been raised on direct appeal and Capone failed to preserve a challenge to the district court’s finding
that he did not meet the statutory exception to forfeiture, Capone’s Napue claim of prosecutorial
misconduct was forfeited for purposes of post-conviction.
Even if Capone had preserved a challenge to the district court’s conclusion that he did not
show his Napue claim met the statutory exception for forfeiture, his claim fails because Capone
did not show by way of substantial factual support that the claim raises a substantial doubt about
12
the reliability of his guilt3 and could not have been raised earlier. First, Capone fails to make even
a prima facie showing, let alone a substantial factual showing, that his Napue claim raises a
substantial doubt about this reliability of his guilt. The documents on which Capone relies to
support his Napue claim were not attached to or part of his third amended post-conviction petition,
rendering the assertions in his affidavit bare, conclusory, and unsupported. Capone acknowledges
the documents on which he relies for this claim were not in or attached to his post-conviction
petition, stating: “While the discovery is not attached, this again is just a summary proceeding.
The relevant pages of discovery would come in at the evidentiary hearing with Mr. Capone
explaining their relevance.” However, a petitioner must provide sufficient factual support for the
claim in or attached to his post-conviction petition or state why the supporting evidence is not
included. Wolf, 152 Idaho at 66-67, 266 P.3d at 1171-72. Because he did neither, Capone has
failed to support his Napue claim with sufficient admissible evidence.
This Court is not required to accept the petitioner’s mere conclusory allegations,
unsupported by admissible evidence, or the petitioner’s conclusions of law. Roman, 125 Idaho at
647, 873 P.2d at 901; Baruth, 110 Idaho at 159, 715 P.2d at 372. If the petitioner has not presented
evidence making a prima facie case as to each essential element of the claims, then the claim may
be summarily dismissed. Kelly, 149 Idaho at 521, 236 P.3d at 1281; DeRushé, 146 Idaho at 603,
200 P.3d at 1152. Capone’s failure to establish a prima facie showing for the claim means he has
similarly failed to support his claim with substantial evidence.
But even if we were to overlook that procedural flaw, a review of Capone’s claim fails to
cast substantial doubt on his guilt. Stone’s credibility was addressed extensively at trial through a
lengthy cross-examination about Stone’s inconsistent statements that included at least some of the
categories of testimony Capone now alleges affected Stone’s credibility. Capone fails to show
3
Capone asserts that as it relates to his claim regarding Stone’s credibility, the district court
applied an incorrect standard when it held, “Capone has failed to establish there is a reasonable
likelihood that the alleged false testimony could have affected the jury’s finding of guilt,” as
opposed to the correct standard of “any reasonable likelihood.” (Emphasis added.) However,
Capone has not provided the Court with any legal authority supporting the proposition that “a” is
different than “any” in this context or that reversal of a summary dismissal in its entirety is
appropriate where a court is alleged to misapply the appropriate legal standard to one or more
claims within the petition. Consequently, he has waived this issue on appeal. State v. Zichko, 129
Idaho 259, 263, 923 P.2d 966, 970 (1996) (“A party waives an issue cited on appeal if either
authority or argument is lacking.”).
13
how the remaining minor discrepancies in Stone’s testimony impeached his credibility to the extent
that there is a substantial doubt about the finding of Capone’s guilt. As a result, Capone’s Napue
claim fails to cast a substantial doubt about his guilt as required under the first prong of the
forfeiture exception.
As to the second prong of the exception, for the first time on appeal, Capone argues the
claim could not have been raised on direct appeal because his post-conviction affidavit was not
part of the appellate record. While true, the absence of Capone’s affidavit in the appellate record
in his underlying criminal case did not affect his opportunity to raise the Napue prosecutorial
misconduct claim on direct appeal. First, as noted above, Capone’s affidavit on this issue relies in
large part on evidence not in or attached to his third amended petition, rendering the statements in
his affidavit bare, conclusory, and unsupported by admissible evidence. As a result, the affidavit
provides no additional evidence that was otherwise unavailable to trial or appellate counsel.
Second, to the extent it is the content of the affidavit that is relevant, the content of the affidavit is
the citations to the record in the underlying criminal case and the comparisons between various
pieces of evidence and Stone’s trial testimony. Stone’s affidavit does not include any factual
information explaining why trial counsel or appellate counsel could not make the same
comparisons earlier in the proceedings. Nothing in Capone’s affidavit or third amended petition
show by substantial evidence why the claim could not have been raised earlier in the proceeding
as required under the second prong of the forfeiture exception.
Based on the above, the district court did not err when it found Capone’s Napue claim of
prosecutorial misconduct was forfeited for purposes of post-conviction proceedings.
2. Capone’s claim of prosecutorial misconduct based on Det. Hally’s statements
Capone next asserted in his third amended petition that the State committed prosecutorial
misconduct when it failed to address what Capone characterized as Det. Hally’s misconduct.
Specifically, Capone asserts Det. Hally lied when he stated that Capone admitted to stalking
Anderson and sending harassing messages to her phone and email, and “[a]t a minimum,
Mr. Capone knows what he told to Det. Hally, and it is at odds with what Det. Hally testified to.”
The district court held this claim was forfeited pursuant to I.C. § 19-4901(b) because it could have
been raised on direct appeal and did not meet the statutory exception for forfeiture. The district
court did not err.
14
Capone could have raised his prosecutorial misconduct claim related to Det. Hally’s
statements on direct appeal because the evidence on which Capone relies is drawn from the
underlying criminal record. Det. Hally testified about Capone’s stalking and harassment of
Anderson during the criminal trial. However, defense counsel did not object to those statements
and instead, questioned Det. Hally about his testimony and the underlying conversation between
Det. Hally and Capone. Det. Hally’s statements regarding Capone’s stalking and harassment of
Anderson were also included as part of the presentence investigation report. During the sentencing
hearing, Capone’s counsel objected to these statements being included in the presentence
investigation report. Capone argued these statements should not be relied on at sentencing:
The Defendant also objects to statements made in the section entitled,
Investigations, Comments and Analysis of Defendant’s Condition, which makes
reference to the statements Mr. Capone allegedly made to Hally. Th[ese are] the
same statements that were suppressed at trial . . . .
Defendant objected to the statement in the official version at Page 4 that
attributes a statement to Mr. Capone that he stated that he was the one who was
stalking and harassing Rachel Anderson. Mr. Capone denies that he ever told Hally
that he was stalking Rachel Anderson. There is no report wherein [Mr. Capone]
told anyone that he was stalking Rachel Anderson.
The defendant objects to the statement in the official version that states that
he sent numerous messages and emails to scare her. Mr. Capone denies that he ever
said he was trying to scare Rachel Anderson, and no evidence of such a statement
was produced.
(Emphasis added.)
Because the factual basis for the claim was available to both criminal trial and appellate
counsel, the district court did not err in finding the issue could have been raised on direct appeal
and was forfeited pursuant to I.C. § 19-4901(b) unless Capone established the statutory exception
to forfeiture applies to this claim. As discussed above, Capone failed to preserve any challenge to
the district court’s finding that he did not show the statutory exception for forfeiture applied to this
claim.
However, even when the claim is reviewed on the merits, Capone’s claim fails because he
did not show that this claim raises a substantial doubt about his guilt and it could not have been
raised earlier, as required to qualify for the forfeiture exception. First, in his third amended
petition, Capone alleged that Det. Hally fabricated evidence and intimidated witnesses and this
misconduct “constitute[d] police abuse of citizens, in such a fashion that [led] to the complete
perversion[] of the judicial process.” Capone neither identifies nor supports the legal theory
15
underlying this claim. It is well established that a party waives an issue on appeal if either authority
or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). Second,
Capone fails to allege how the statements that were admitted at trial cast substantial doubt upon
the reliability of the jury’s finding of guilt, particularly since those statements were subject to
cross-examination. Third, Capone provided no admissible evidence to the district court that
Det. Hally fabricated Capone’s statements because Capone failed to include in, or attach to, his
third amended petition the records upon which he relies. Capone also failed to include any
affidavits from any party Det. Hally allegedly harassed. Fourth, Capone’s assertion that
Det. Hally’s statements in the police report are not accurate does not constitute admissible
evidence that those statements are false. Thus, Capone failed to show by substantial factual
support that Det. Hally’s statements or actions cast substantial doubt about the finding of guilt.
Capone similarly fails to explain by way of substantial facts, why the claims could not have
been raised in earlier proceedings. The transcript indicates that trial counsel cross-examined
Det. Hally about his statements at trial and Capone’s trial counsel objected to the admission of the
statements during the sentencing hearing and indicated that additional similar statements had
actually been suppressed at trial. Because Capone objected, the claim was preserved for direct
appeal and Capone has failed to show why the claim could not have been raised sooner. Because
the claim could have been raised on direct appeal, but was not, and Capone did not establish by
way of substantial facts that he met the statutory exception to forfeiture, the district court did not
err in finding the claim is forfeited pursuant to I.C. § 19-4901(b) for purposes of post-conviction.
3. Capone’s claims of prosecutorial misconduct based on alleged Brady violations
Next, we turn to Capone’s post-conviction claims of prosecutorial misconduct based on
alleged Brady violations. Capone raised the following Brady claims in his third amended petition:
(1) the State failed to disclose that Voss was working as a confidential informant at the time he
testified against Capone at trial; (2) the State failed to disclose that Glass was subject to a “third
strike” sentencing enhancement based on his criminal record; and (3) the State failed to disclose
additional dive records related to the search of the Snake River for evidence of Anderson’s body
or other evidence of the crime. On appeal, Capone argues the district court erred in finding the
claims were forfeited pursuant to I.C. § 19-4901(b). The State argues the district court correctly
concluded Capone forfeited these claims.
16
Pursuant to Brady, due process requires all material exculpatory evidence known to the
State or in its possession be disclosed to the defendant. Brady, 373 U.S. at 87; Grube v. State, 134
Idaho 24, 27, 995 P.2d 794, 797 (2000). Establishing a Brady violation requires a three-part
showing: (1) the evidence at issue must be favorable to the accused because it is exculpatory or
impeaching; (2) the State must have suppressed that evidence, either willfully or inadvertently;
and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). For a
Brady claim, evidence is material “if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 682 (1985). A petitioner establishes a “reasonable probability” of a different
result when the evidence withheld undermines confidence in the outcome of the trial. Lankford,
162 Idaho at 505-06, 399 P.3d at 832-33. Thus, evidence that is material is also likely to establish
prejudice.
Generally, allegations of prosecutorial misconduct based on a Brady violation can be
brought in post-conviction actions, Thumm, 165 Idaho at 422, 447 P.3d at 870, because the factual
underpinnings of the Brady claim are not discovered until after the direct appeal is concluded.
However, Brady claims are derived from prosecutorial misconduct claims. Lankford, 162 Idaho
at 503, 399 P.3d at 830. Prosecutorial misconduct claims are regularly reviewed on direct appeal
to determine whether the judgment should be vacated and a new trial granted. Id. at 493-94, 399
P.3d at 820-21 (holding although prosecutorial misconduct is not basis for granting motion for
new trial, claims of prosecutorial misconduct could be reviewed on direct appeal where such
claims are regularly reviewed). As such, an allegation of prosecutorial misconduct for a Brady
violation is subject to the same limitations of I.C. § 19-4901(b) as any other prosecutorial
misconduct claim.
The holding in Thumm supports this reasoning. Thumm alleged the State committed
prosecutorial misconduct by violating Brady for its late disclosure of a fingerprint report. Thumm,
165 Idaho at 422, 447 P.3d at 870. The State disclosed the fingerprint report to Thumm’s trial
counsel approximately one week before trial. Id. at 424, 447 P.3d at 872. However, Thumm’s
trial counsel and the State previously stipulated to a protective order that precluded trial counsel
from disclosing names of witnesses or physically transferring reports to Thumm. Id. at 416, 447
P.3d at 864. In his post-conviction petition, Thumm asserted he had not received a copy of the
17
fingerprint report before or during trial.4 Id. The fingerprint report was not admitted during the
trial and, thus, was not part of the appellate record. Id. at 426, 447 P.3d at 874. In Thumm’s post-
conviction case, the Supreme Court addressed the claim on the merits and affirmed the summary
dismissal of the claim, reasoning that the fingerprint report was not willfully suppressed because
it was ultimately disclosed and trial counsel had sufficient opportunity to review the report and
objected to its admission. Id. at 424, 447 P.3d at 872. The Court further concluded that after
reviewing the entire record, the exclusion of the report did not undermine its confidence in the
verdict. Id.The Supreme Court recognized that Thumm’s prosecutorial misconduct claim based on an
alleged Brady violation for the State’s late disclosure of the fingerprint report had no factual
support in the record. Without any evidence of the content of the report or Thumm’s knowledge
of the fingerprint report in the appellate record, there was no basis upon which Thumm could make
a Brady claim on direct appeal. Thus, the claim was properly brought for the first time in post-
conviction. That is not the case here. The factual underpinnings of each of Capone’s Brady claims
were known during his criminal trial, had factual support in the underlying criminal record, and as
a result, each claim could have been raised on direct appeal as a claim of prosecutorial misconduct.
a. Capone’s Brady claim based on Voss’s status as a confidential
informant
Capone’s first Brady claim alleged the State did not disclose that Voss was a confidential
informant at the time he testified at trial. Capone asserts that had Voss’s status as a confidential
informant and his motivation been known at trial, it would have been “useful for impeachment.”
The district court held this claim was forfeited pursuant to I.C. § 19-4901(b) because it could have
been raised on direct appeal and did not meet the statutory exception for forfeiture. The district
court did not err.
Capone’s affidavit cites to pretrial discovery in the underlying criminal case as support that
Voss worked as a confidential informant in other cases, was trying to get information from Capone,
and was trying to leverage that information to his advantage. This citation demonstrates that the
4
Thumm alleged an ineffective assistance of trial counsel claim for failing to provide the
fingerprint report to him. Thumm argued that had the report been provided to him, he would have
noticed the exculpatory nature of the report. In addressing the deficient performance prong of the
Strickland analysis, the Idaho Supreme Court noted that “counsel likely should have shared the
report with her client.” Thumm v. State, 165 Idaho 405, 416, 447 P.3d 853, 864 (2019).
18
factual basis for the claim was available to both criminal trial and appellate counsel, and thus, the
claim could have been raised on direct appeal. A further review of the criminal trial transcript, of
which the district court took judicial notice, similarly demonstrates that the factual basis for the
claim was available to trial and appellate counsel and, thus, the claim could have been raised in
direct appeal.
For example, Voss testified during the criminal trial that he had been working with the
investigators while he was incarcerated with Capone and was trying to get Capone to confess to
Anderson’s murder. Voss testified that Capone told him that Anderson “wouldn’t be coming back.
They wouldn’t find her.” Voss further testified that when he relayed Capone’s statements to a
detective, the detective asked Voss if he could get Capone to admit to the murder. Voss’s strategy
was to “catch [Capone] first thing in the morning when he’s not awake at all, hardly awake, you
know, not thinking right.” This testimony illustrates that the claim regarding Voss’s status as a
confidential informant at the time he elicited statements from Capone was addressed during the
underlying criminal proceeding.
Capone argues that Voss’s status as a confidential informant at the time of trial (rather than
pretrial) would have explained Voss’s motive to testify against Capone, thus, impeaching his
testimony, and it was this evidence that was not disclosed. However, Voss was cross-examined
on his motive to testify against Capone, and Capone’s trial counsel emphasized during closing
argument that Voss likely had an ulterior motive for working with law enforcement because he
wanted to be released from incarceration, making him an unreliable witness. Because Capone did
not provide evidence that was obtained post-trial and because Voss’s motive to testify and his lack
of credibility were addressed in the trial court, Capone failed to show the district court erred in
finding this claim could have been raised on direct appeal. Accordingly, the claim is forfeited for
purpose of post-conviction unless Capone can show he meets the statutory exception to forfeiture.
Capone failed to show by way of substantial facts that the statutory exception to forfeiture
applied to this claim. First, the claim does not raise a substantial doubt about the reliability of his
guilt because Capone provided no admissible evidence to support his assertion that at the time of
trial, Voss was working as a confidential informant for the Bonner County Sheriff’s Office or that
trial counsel was unaware of Voss’s status as an informant at the time of trial. Without that
evidence, he cannot establish the State withheld any information and, thus, cannot establish the
19
first prong his Brady claim by even a prima facie showing, let alone a substantial factual showing.
He similarly fails to establish any of the other elements of a Brady claim by admissible evidence.
Even if Capone can get past that procedural hurdle, he still fails to show this Brady claim
casts substantial doubt upon the finding of guilt because the jury was aware through Voss’s
testimony that he was working as an informant at law enforcement’s request. During closing
argument, Capone’s trial counsel highlighted that Voss may have an ulterior motive for working
with law enforcement to try to procure an incriminating statement from Capone, stating: “The
problem with Joshua Voss is that he really saw this as an opportunity to get out of jail and nothing
more.” In light of this testimony, and the lack of any substantial factual support for this claim,
Capone did not make even a prima facie showing that the State failed to disclose material,
exculpatory evidence related to Voss’s status as a confidential informant at the time Voss testified
against Capone. As a result, his claim does not cast substantial doubt upon the reliability of
Capone’s conviction.
As to the second prong required under the statutory exception to forfeiture, Capone’s
affidavit does not provide by way of substantial facts why the claim could not have been raised
earlier. As addressed in the Napue claim, Capone failed to address this issue in the trial court.
Because all of the cited factual support for this claim was available to criminal trial and appellate
counsel, the district court did not err in concluding the claim could have been raised on direct
appeal. Capone failed to show by substantial evidence the statutory exception to forfeiture applied;
as such, the district court did not err in finding this claim was forfeited for purposes of post-
conviction proceedings.
b. Capone’s Brady claim based on Glass’s criminal record
Capone’s second alleged Brady claim was that because of the number of Glass’s prior
felony convictions, Glass was subject to a “third strike” sentencing enhancement on pending
charges in Washington, which affected Glass’s motive in testifying against Capone. The district
court held this claim was forfeited pursuant to I.C. § 19-4901(b) because it could have been raised
on direct appeal and did not meet the statutory exception for forfeiture. The district court did not
err.
In his affidavit, Capone provided no admissible evidence on any of the elements of a Brady
claim. Moreover, a review of the trial transcript, of which the district court took judicial notice,
indicates that Capone was aware of the factual underpinnings of this claim during his criminal
20
trial. During trial, Capone’s counsel asked Glass if he was facing felony burglary and theft charges
at the time he informed on Capone. The State objected, arguing, “[t]hese have already been subject
to a prior ruling.” The State then clarified that it had filed a motion in limine to prohibit the defense
from mentioning or introducing evidence of Glass’s criminal history. The district court sustained
the objection and struck the questions and Glass’s answers. 5 Capone’s trial counsel argued to the
court that “the idea that [Glass] is facing charges and facing felony charges, and serious felony
charges in Asotin County, [Washington,] is very relevant.” The State noted that it had previously
filed a motion in limine prohibiting the defense from mentioning or introducing evidence of
Glass’s criminal history and the motion was granted. Defense counsel agreed he would not go
into Glass’s prior convictions. The district court permitted Capone’s trial counsel to cross-examine
Glass on whether Glass was facing charges; whether Glass had attempted to obtain consideration
on those charges in exchange for his testimony against Capone; and admitted Defendant’s Exhibit
R, which was a copy of Glass’s proposed plea agreement with the Asotin County prosecutor on a
pending felony charge.6
Glass repeatedly testified that he did not receive any consideration or benefit in exchange
for his testimony against Capone. In closing argument, Capone’s trial counsel highlighted issues
with Glass’s credibility, stating:
We also know that at the time Brent Glass made the statements to the police,
he was facing criminal charges. And we know that he desperately wanted to get
out of jail.
Remember, he testified that he, like most people, would be willing to lie to
get out of jail. And that’s exactly what he did.
Subsequently, on direct appeal in the criminal case, Capone argued the district court erred
in prohibiting him from impeaching Glass with one of Glass’s prior burglary convictions. As
support for his argument, Capone noted the State filed a motion in limine to preclude reference to
Glass’s prior record. Capone, 164 Idaho at 122, 426 P.3d at 473. As part of that motion, the State
disclosed Glass’s prior conviction for a felony burglary. Id. The Idaho Supreme Court agreed that
5
Capone has failed to provide a copy of the State’s motion in limine. The party appealing
a decision of the district court bears the burden of ensuring that this Court is provided a sufficient
record for review of the district court’s decision. Gibson v. Ada Cnty., 138 Idaho 787, 790, 69
P.3d 1048, 1051 (2003). “When a party appealing an issue presents an incomplete record, this
Court will presume that the absent portion supports the findings of the district court.” Id.6
Defendant’s Exhibit R is not in included in the Clerk’s Record.
21
the trial court erred in prohibiting a reference to Glass’s prior burglary conviction, but found the
error harmless. Id. at 127, 426 P.3d at 478. Capone was aware of Glass’s criminal history and
pending criminal charges during the underlying criminal proceeding and, therefore, this claim
could have been raised on direct appeal. Accordingly, the claim is forfeited for purpose of post-
conviction unless Capone can show he meets the statutory exception to forfeiture.
Capone failed to show by way of substantial facts that the statutory exception to forfeiture
applied to this claim. Capone provided no admissible evidence on any of the elements of the Brady
claim. Without that evidence, he did not make even a prima facie showing, let alone a substantial
factual showing, on any element of his Brady claim.
Moreover, even when reviewed on the merits, Capone failed to show Glass’s criminal
record casts substantial doubt about the reliability of the finding of guilt and that the claim could
not have been brought earlier. As the record in the criminal case demonstrates, Capone’s trial
counsel was aware of Glass’s criminal history and his pending felony charges in Washington.
Because Capone knew that Glass had prior felony convictions and was facing two new felony
charges, Capone had sufficient information to know Glass could face persistent violator sentencing
enhancements if he were convicted of any additional felonies. When a petitioner has enough
information to be able to ascertain the supposed Brady material on his own, there is no suppression
by the government and, therefore, can be no Brady violation. State v. Hall, 163 Idaho 744, 831,
419 P.3d 1042, 1129 (2018). Because Capone failed to provide any admissible evidence that the
State failed to disclose material, exculpatory evidence related to Glass’s pending “third strike”
prosecution in Washington and because Capone was aware of this information during his criminal
trial, his claim does not cast substantial doubt upon the reliability of Capone’s conviction.
As to the second prong of the forfeiture exception, Capone provided no statements in his
affidavit explaining why the claim could not have been raised sooner. As addressed in the Napue
claim, Capone failed to address this issue in the trial court. Because all of the information upon
which Capone relied was available to trial and appellate counsel, the district court did not err in
concluding the claim could have been raised on direct appeal. Because Capone failed to provide
any admissible evidence that the statutory exception to forfeiture applied to his claim, the district
court did not err in finding this claim was forfeited for purposes of post-conviction proceedings.
22
c. Capone’s Brady claim relating to the dive records
Capone’s final Brady claim relates to the State’s alleged failure to disclose additional dive
records from the search of the Snake River for evidence of Anderson’s murder. The district court
held this claim was forfeited pursuant to I.C. § 19-4901(b) because it could have been raised on
direct appeal and did not meet the statutory exception for forfeiture. The district court did not err.
Capone asserted in his post-conviction petition that additional dive records were not
provided to him. However, like the excluded fingerprint report in Thumm, the absence of the dive
records could have been the basis of a fundamental error claim on direct appeal. Thumm, 165
Idaho at 426, 447 P.3d at 874 (holding claim of prosecutorial misconduct that tangentially relied
on excluded fingerprint report could have been raised on direct appeal, based on very exclusion of
fingerprint report). Thus, because this claim could have been raised on direct appeal, unless
Capone meets the statutory exception, the district court did not err in concluding the claim was
forfeited for purposes of post-conviction.
Capone asserts that additional dive records would not have simply established, like the
disclosed records, that no physical evidence of Anderson’s murder was found. Instead, he argues
the additional dive records might have provided something even more exculpatory, like a statement
by investigators that, had Anderson been wrapped in tire chains and thrown in the river, they would
have found this evidence. A petitioner’s speculative conclusory assertions, unsupported by
admissible evidence, are not sufficient to create a genuine issue of material fact. See Roman, 125
Idaho at 647, 873 P.2d at 901. In this case, Capone’s petition and affidavit provided even less than
conclusory allegations; Capone provided only speculation as to what the additional dive records
might have stated. Capone’s speculative statements do not even meet a prima facie evidentiary
standard, let alone establish a substantial factual showing. To the extent additional dive records
would have shown, as did the disclosed dive records, no physical evidence of Anderson’s murder
in the Snake River, the evidence would have been merely cumulative. “When nondisclosed
evidence is merely cumulative of other evidence, no Brady violation occurs.” Grube, 134 Idaho
at 28, 995 P.2d at 798. Thus, Capone failed to show by way of substantial facts that the State
withheld material, exculpatory dive records such that the claim casts substantial doubt upon the
finding of his guilt.
As to the second prong of the forfeiture exemption, Capone provided no statements in his
affidavit explaining why the claim could not have been raised earlier. As a result, the district court
23
did not err in finding this claim could have been raised on direct appeal. Because Capone failed
to establish the statutory exception to forfeiture, the district court did not err in finding this claim
was forfeited for purposes of post-conviction proceedings.
B. Capone’s Argument Regarding Lack of Remedy
In his reply brief, Capone claims that a petitioner has no remedy to overcome an
unpreserved constitutional claim that requires development of the factual record because such a
claim cannot be effectively raised either on direct appeal or in post-conviction. This is so, argues
Capone, because the fundamental error test under State v. Perry, 150 Idaho 209, 226, 245 P.3d
961, 978 (2010) requires a showing that the error be clear from the record. He further argues that
the procedural bar set forth in I.C. § 19-4901(b) similarly precludes review:
Appellant argues that at this point, after Perry (now Miller et al), the fundamental
error avenue is blocked by the procedural threshold which now precludes appellate
review of constitutional claims on either direct appeal or in a post-conviction.
There is a difference between not being in an ideal procedural posture for direct
appellate review and being categorically precluded from having an appellate court
reach the merits of the claim because the procedural threshold cannot be met.
Capone’s argument has been regularly rejected by Idaho’s Supreme Court and Court of
Appeals. See Thumm, 165 Idaho at 426, 447 P.3d at 874; Baldwin, 145 Idaho at 153 n.4, 177 P.3d
at 367 n.4; Black, 165 Idaho at 104-05, 439 P.3d at 1276-77; Grove, 161 Idaho at 852, 392 P.3d at
30; Bias v. State, 159 Idaho 696, 702-03, 365 P.3d 1050, 1056-1057 (Ct. App. 2015). Capone
could have raised all of his unobjected to allegations of constitutional violations as fundamental
error on direct appeal. See Grove, 161 Idaho at 852, 392 P.3d at 30. Additionally, any of Capone’s
claims that were addressed in the underlying criminal case and were objected to, including
challenges to Stone’s credibility and issues surrounding Glass’s prior record, could have been or
were raised on direct appeal. Moreover, Capone could have raised all of his claims as claims of
ineffective assistance of trial counsel in his petition for post-conviction relief for his trial counsel’s
failure to object to the prosecutor’s conduct, see Bias, 159 Idaho at 703, 365 P.3d at 1057 (finding
“the proper way for a defendant to challenge an unpreserved trial error is to assert ineffective
assistance of trial counsel in a post-conviction proceeding”) or for his appellate counsel’s failure
to raise the claims as fundamental error on appeal. Mintun v. State, 144 Idaho 656, 661, 168 P.3d
40, 45 (Ct. App. 2007) (holding it possible to bring ineffective assistance of appellate counsel for
failure to raise particular claim in post-conviction proceeding). Finally, as set forth above, I.C.
§ 19-4901(b) provides an exception to the general forfeiture of claims that could have been raised
24
on direct appeal, but Capone failed to support his claims with substantial facts or present the district
court with any evidence or argument to explain why the claims could not have been raised earlier.
As a result, Capone has failed to show that any exception to the general forfeiture bar was
applicable to any of his claims.
The district court did not err in concluding that Capone’s prosecutorial misconduct claims
could have been brought in his underlying criminal case and do not fall within the statutory
exception to the general rule of forfeiture provided by I.C. § 19-4901(b). Accordingly, the district
court did not err by finding that Capone forfeited his prosecutorial misconduct claims.
C. The District Court Did Not Err in Summarily Dismissing Capone’s Claims on the
Merits
As an alternative basis to finding the prosecutorial misconduct claims were forfeited
pursuant to I.C. § 19-4901(b), the district court also found that each claim did not raise a genuine
issue of material fact. The district court also found that Capone’s ineffective assistance of counsel
claim did not raise a genuine issue of material fact and therefore all of Capone’s claims were
subject to summary dismissal. Capone contends that the district court erred because each of these
claims alleged a genuine issue of material fact such that they should not have been summarily
dismissed. The State argues the district court did not err in finding the claims did not allege a
genuine issue of material fact.
A petition for post-conviction relief must present or be accompanied by admissible
evidence supporting its allegations or the petition will be subject to dismissal. Wolf, 152 Idaho at
67, 266 P.3d at 1172. “In the context of post-conviction relief, the applicant bears the burden not
only to prove a constitutional violation, but also to demonstrate that he suffered some resulting
prejudice that would entitle him to relief.” Nelson v. State, 157 Idaho 847, 856, 340 P.3d 1163,
1172 (Ct. App. 2014).
1. Capone failed to allege a genuine issue of material fact on any of his claims of
prosecutorial misconduct
As discussed above, Capone fails to allege a genuine issue of material fact for any of his
prosecutorial misconduct claims. The statements in his affidavit were bare and conclusory because
they were not supported by admissible evidence. Each claim is discussed above and need not be
repeated here. For the reasons set forth above, Capone failed to allege a genuine issue of material
fact regarding any of his prosecutorial misconduct claims. He similarly fails to allege a genuine
issue of material fact that he suffered any prejudice. The district court did not err in finding that
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Capone failed to allege a genuine issue of material fact as to any of his prosecutorial misconduct
claims.
2. Capone failed to allege a genuine issue of material fact for his claim of
ineffective assistance of trial counsel
Capone asserts the district court erred in summarily dismissing his claim of ineffective
assistance of trial counsel for failing to seek additional dive records related to the searches of the
Snake River for Anderson’s body or other physical evidence of the crime. Capone argues he
alleged a genuine issue of material fact that trial counsel failed to adequately investigate the dive
records and these records would have provided information that would have disproved Stone’s
story about the disposal of Anderson’s body. In response, the State alleges the record conclusively
shows trial counsel made a strategic decision not to request additional dive records and, as such,
the district court did not err by summarily dismissing the claim.
A claim of ineffective assistance of counsel may properly be brought under the UPCPA.
Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App. 2009). To prevail on an
ineffective assistance of counsel claim, the petitioner must show that the attorney’s performance
was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007).
To establish a deficiency, the petitioner has the burden of showing that the attorney’s
representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758,
760, 760 P.2d 1174, 1176 (1988); Knutsen, 144 Idaho at 442, 163 P.3d at 231. To establish
prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient
performance, the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760
P.2d at 1177; Knutsen, 144 Idaho at 442, 163 P.3d at 231. A reasonable probability of a different
outcome is a probability sufficient to undermine confidence in the outcome. State v. Dunlap, 155
Idaho 345, 383, 313 P.3d 1, 39 (2013). This “requires a substantial, not just conceivable, likelihood
of a different result.” Id. (internal citations and quotations removed).
This Court has long adhered to the proposition that tactical or strategic decisions of trial
counsel will not be second-guessed on appeal unless those decisions are based on inadequate
preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation.
Gonzales v. State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011). Because “[a] fair
assessment of attorney performance requires that every effort be made to eliminate the distorting
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effects of hindsight,” a petitioner seeking post-conviction relief for a claim of ineffective assistance
of trial counsel must overcome the strong presumption that counsel made all significant decisions
in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689-90; see also State
v. Abdullah, 158 Idaho 386, 418, 348 P.3d 1, 33 (2015). “Strategic decisions are virtually
unchallengeable if made after a thorough investigation of law and facts relevant to plausible
options . . . [and] decisions made after less than complete investigation are still reasonable to the
extent reasonable professional judgments support the limitations on investigation.” Abdullah, 158
Idaho at 418, 348 P.3d at 22 (internal quotations and citations removed).
Capone failed to demonstrate his trial counsel’s decision was based on inadequate
preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation.
Capone’s trial counsel attested in his affidavit that: (1) “one of our strategies at trial in
Mr. Capone’s case was to highlight the State not being able to locate any evidence to corroborate
David Stone’s testimony from their dives in the Snake River, including a body or tire chains”;
(2) “the fact that the State did not locate any corroborating evidence in the river was positive to
our defense and we did not want to change a positive fact by requesting more dive records and/or
a hand-over-hand search of the river that might uncover inculpatory evidence”; and (3) “we further
did not want to risk opening the door to evidence of the State’s experiments with placing items in
the river.” Trial counsel’s attestations demonstrate that trial counsel was aware that there may
have been more dive records but did not wish to seek out those records in case they would be
detrimental to Capone’s case.
This reasoning demonstrates that Capone’s trial counsel’s decision to not seek additional
dive records was the result of a trial strategy reached after careful consideration. Capone’s
arguments are attempts to analyze his trial counsel’s performance with the benefits of both
hindsight (as to his analysis of the strategy given the trial’s ultimate outcome) and prognostication
(as to his assumption of what additional dive records might have shown). Given the record,
Capone cannot overcome the strong presumption that his trial counsel acted with reasonable
professional judgment and, as such, cannot establish deficient performance under the first prong
of an ineffective assistance of counsel claim.
Additionally, Capone did not raise a genuine issue of material fact that he was prejudiced
by his trial counsel’s decision not to seek additional dive records. Nowhere in Capone’s third
amended petition for post-conviction relief or accompanying affidavits does Capone allege with
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any specificity how he was prejudiced by his trial counsel’s failure to obtain additional dive
records. Capone speculates that the additional dive records might provide evidence that had
Anderson’s body been thrown in the river with sixty pound steel tire chains, the chains would have
been able to be recovered years later. Capone asserts trial counsel failed to investigate the dive
records and the failure was critical to the outcome of the trial. However, Capone provides no
evidence to support his assumption beyond his conclusory statements. Further, while Capone
argues on appeal that further records and investigation “could have been used effectively to
impeach Stone’s body disposal story,” he also acknowledges that it is unknown how material
further dive records would be. This is especially true as, at best, any additional dive records would
likely be cumulative evidence that no physical evidence of Anderson’s murder was found in the
Snake River. At worst, any additional dive records might have uncovered physical evidence of
the murder or opened the door to allow the State to introduce evidence of its experiment in
disposing of similarly weighted and wrapped evidence.
Without any evidence beyond Capone’s speculative and conclusory assertions about what
the additional dive records might have produced, Capone failed to allege a genuine issue of
material fact that there was a substantial likelihood that the outcome of the trial would have been
different. Because Capone cannot establish he was prejudiced by his counsel’s failure to seek
additional dive records, the district court did not err by finding Capone failed to allege a genuine
issue of material fact as to either the deficient performance or prejudice prong of Strickland.
IV.
CONCLUSION
Capone’s prosecutorial misconduct claims could have been raised on direct appeal and he
failed to show by way of substantial evidence that any of the claims met the statutory exception to
forfeiture. Even if reviewed on the merits, Capone failed to allege a genuine issue of material fact
regarding any of the elements of his claims. The district court did not err, and the judgment
summarily dismissing Capone’s third amended petition for post-conviction relief is affirmed.
Judge GRATTON and Judge BRAILSFORD CONCUR.
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