                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 45290

VANCE E. THUMM,                                     )
                                                    )
          Petitioner-Appellant,                     )   Boise, November 2018 Term
                                                    )
v.                                                  )   Opinion Filed: August 22, 2019
                                                    )
STATE OF IDAHO,                                     )   Karel A. Lehrman
                                                    )
        Respondent.                                 )   SUBSTITUTE OPINION. THE OPINION
_____________________________________               )   FILED ON FEBRUARY 22, 2019 IS
                                                        HEREBY WITHDRAWN.


       Appeal from the District Court of the Fourth Judicial District of the State
       of Idaho, Ada County. Samuel A. Hoagland, District Judge.

       The district court’s grant of summary disposition is affirmed.

       Silvey Law Offices Ltd., Boise, attorneys for appellant. Greg S. Silvey argued.

    Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for respondent.
    Mark W. Olson argued.
                           ________________________
BEVAN, Justice
                                    I. NATURE OF THE CASE
       In 2009, a jury convicted Vance Thumm of aggravated battery or aiding and abetting
aggravated battery and of being a persistent violator of the law. Thumm pursued a direct appeal,
but was unsuccessful. In 2013, through counsel, Thumm petitioned for post-conviction relief.
The State responded by filing a motion for summary disposition. The district court eventually
granted the State’s motion and dismissed the post-conviction petition. Thumm now appeals
alleging: (1) ineffective assistance of counsel at trial, sentencing, and on appeal; (2) a Brady
violation; (3) prosecutorial misconduct; and (4) cumulative error. We affirm the district court’s
grant of summary disposition.
                        II. FACTUAL AND PROCEDURAL BACKGROUND
       Vance Thumm, Paris Davis, Frankie Hughes, Jeremy Steinmetz, victim Deven Ohls, and
several other people attended an early morning party in a motel room rented by Thumm. At some
point during the party Ohls was attacked, allegedly by both Hughes and Thumm. Hughes later
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admitted to stabbing Ohls in the buttock. After the prolonged attack, Ohls suffered significant
bleeding, a concussion, two black eyes, a complex laceration to the lip, a fractured nose, and the
stab wound.
       The State charged Thumm with aggravated battery under Idaho Code section 18-907 and
with being a persistent violator under Idaho Code section 19-2514. Three others, including
Thumm’s girlfriend, Davis, were also charged in connection to the altercation. Davis was
charged with one count of solicitation or destruction, alteration or concealment of evidence under
Idaho Code section 18-2603, and one count of accessory to aggravated battery under Idaho Code
section 18-907. Following a motion by the State, Thumm’s case was joined with that of Hughes
and Davis, though Thumm was ultimately tried in a joint trial with only Davis.
       Thumm was originally represented by Nick Wollen, a public defender at the Ada County
Public Defender’s Office. In September 2009, Thumm became dissatisfied with Wollen and
retained a private attorney, Virginia Bond, less than two months before the trial. After a four-day
trial, the jury found Thumm guilty of aggravated battery and of being a persistent violator of the
law.
       Following trial, Thumm became dissatisfied with Bond as well, specifically for failing to
provide discovery, so Bond withdrew as counsel. The court then appointed Anthony Geddes as
Thumm’s conflict counsel. On March 10, 2010, the court sentenced Thumm to a unified term of
forty years, fifteen of which were determinate.
       Thumm timely appealed from the district court’s judgment of conviction and also filed a
motion for reconsideration of sentence, which was denied by the district court. On August 19,
2013, Thumm, through counsel, petitioned for post-conviction relief. More than three years later
the State filed an answer to the petition, a motion for summary disposition, and a motion to take
judicial notice of the jury trial and preliminary hearing transcripts and the jury instructions.
Thumm’s counsel then filed an amended post-conviction petition, to which the State responded.
Along with the response, the State also filed another motion for summary disposition, which was
granted by the district court on June 16, 2017. Thumm now appeals.
                                     III. ISSUES ON APPEAL
1.     Did the district court err in summarily dismissing Thumm’s ineffective assistance of
       counsel claims?
2.     Did the district court err in summarily dismissing Thumm’s Brady claim?

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3.     Did the district court err in summarily dismissing Thumm’s prosecutorial misconduct
       claims?
4.     Did Thumm demonstrate cumulative error?
                                    IV. STANDARD OF REVIEW
       A petition for post-conviction relief initiates a civil, rather than criminal, proceeding.
State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). Like the plaintiff in any civil
action, the applicant must prove, by a preponderance of the evidence, the allegations upon which
the request is based. State v. Abdullah, 158 Idaho 386, 417, 348 P.3d 1, 32 (2015) (citing I.C. §
19-4907). The application for post-conviction relief differs from a complaint in an ordinary civil
action in that it 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). Id. (citing Goodwin v. State,
138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002)). The application must present admissible
evidence supporting its allegations, or it will be subject to dismissal. I.C. § 19-4903.
       Idaho Code section 19-4906 authorizes summary dismissal of a post-conviction petition.
Summary dismissal of an application is the procedural equivalent of summary judgment under
Idaho Rule of Civil Procedure 56. “Summary dismissal is permissible only when the applicant’s
evidence has raised no genuine issue of material fact that, if resolved in the applicant’s favor,
would entitle the applicant to the relief requested.” Yakovac, 145 Idaho at 444, 180 P.3d at 483.
               On review of a dismissal of a post-conviction relief application without an
       evidentiary hearing, the Court must determine whether a genuine issue of fact
       exists based on the pleadings, depositions and admissions together with any
       affidavits on file.
Id. Inferences should be liberally construed in favor of the petitioner. Charboneau v. State, 140
Idaho 789, 792, 102 P.3d 1108, 1111 (2004). Constitutional issues are purely questions of law
over which this Court exercises free review. Abdullah, 158 Idaho at 417, 348 P.3d at 32.
“Essentially, the task of this Court ‘is to determine whether the appellant has alleged facts in his
petition that if true, would entitle him to relief.’” Charboneau, 140 Idaho at 792, 102 P.3d at
1111 (quoting Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283, 1285 (1990)).
                                            V. ANALYSIS
       One who has been convicted of, or sentenced for a crime may petition for post-conviction
relief if any one of several statutorily defined conditions is met. I.C. § 19-4901(a). Among those
conditions, and relevant here, are whether the conviction or sentence violated the United States
constitution or the Idaho constitution, or if the conviction or sentence is subject “to a collateral
                                                  3
attack upon any ground of alleged error heretofore available under any common law, statutory or
other writ, motion, petition, proceeding, or remedy . . . .” I.C. § 19-4901(a)(1), (a)(7).
               This remedy 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.
I.C. § 19-4901(b).

A.     Ineffective Assistance of Counsel
       A majority of Thumm’s claims involve allegations of ineffective assistance of counsel.
Claims for ineffective assistance of counsel are properly raised in a post-conviction setting. See
Matthews v. State, 122 Idaho 801, 806, 839 P.2d 1215, 1220 (1992). The right to counsel in
criminal actions is guaranteed by the Sixth Amendment to the United States Constitution and
Article 1, Section 13 of the Idaho Constitution. Abdullah, 158 Idaho at 417, 348 P.3d at 33
(citing Murray v. State, 156 Idaho 159, 164, 321 P.3d 709, 714 (2014)). This Court employs the
Strickland two-prong test to determine whether a defendant in a criminal case received effective
assistance of counsel. Mitchell v. State, 132 Idaho 274, 277, 971 P.2d 727, 730 (1998)
(referencing Strickland v. Washington, 466 U.S. 668 (1984)). Under Strickland, an applicant for
post-conviction relief must demonstrate: (1) counsel’s performance fell below an objective
standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s errors,
the outcome would have been different. Strickland, 466 U.S. at 669. These prongs are known
more precisely as (1) deficient performance and (2) resulting prejudice. Id. at 687.
       When evaluating a claim for ineffective assistance of counsel, “this Court does not
second-guess strategic and tactical decisions . . . unless the decision is shown to have resulted
from inadequate preparation, ignorance of the relevant law or other shortcomings capable of
objective review.” Yakovac, 145 Idaho at 444, 180 P.3d at 483 (citing Pratt v. State, 134 Idaho
581, 584, 6 P.3d 831, 834 (2000)). There is a strong presumption that counsel’s performance was
within the range of acceptability, particularly as to things like defense counsel’s choice of
witnesses, manner of cross-examination, and lack of objections to testimony, which are generally


                                                  4
considered to fall within the realm of tactical or strategic decisions. Giles v. State, 125 Idaho 921,
924, 877 P.2d 365, 368 (1994).
       1.      Improper Joinder Claims.
       Thumm argues that his trial counsel were ineffective for failing to oppose the State’s
motion for joinder of Thumm’s and Davis’s cases (claim as to Wollen), or, alternatively, for
failing to move to sever the cases (claim as to Bond). Thumm maintains that had counsel done
so, either the objection or the motion would have been successful, since joinder with Davis’s
case violated the rule set forth in Bruton v. United States, 391 U.S. 123 (1970).
       Joinder of two or more defendants is proper if “they are alleged to have participated in
the same act or transaction or in the same series of acts or transactions constituting an offense or
offenses.” I.C.R. 8(b). Actions properly joined under Idaho Criminal Rule 8(b) may be severed
under Idaho Criminal Rule 14, if conducting a joint trial would be prejudicial. State v. Gamble,
146 Idaho 331, 337, 193 P.3d 878, 884 (Ct. App. 2008); I.C.R. 14. As provided by Idaho
Criminal Rule 14, a “court may order the state to elect between counts, grant separate trials of
counts, grant severance of defendants, or provide whatever other relief justice requires.”
        The district court found that both Thumm and Davis participated in the same series of
acts constituting the offenses charged: Thumm committed a battery and Davis encouraged
Thumm to conceal the evidence by destroying bloody clothing. These findings are supported by
the record. Thus, Thumm’s charges were related enough to Davis’s charges to warrant joinder.
See States v. Estes, 111 Idaho 423, 427, 725 P.2d 128, 132 (1986) (holding that joinder of
offenses was proper because they were part of one continuing action—the individual offenses
were not committed at different times, in different places, nor with different actors or
circumstances).
       A criminal defendant bears the burden to show prejudice in making a motion to sever
under Idaho Criminal Rule 14. State v. Caudill, 109 Idaho 222, 226, 706 P.2d 456, 460 (1985).
Such motions are committed to the sound discretion of the trial court. Id.; I.C.R. 14. “When
considering whether an attorney’s failure to file a motion . . . constitutes deficient performance,
the Court examines the probability of success of such a motion in order to determine whether
counsel’s decision was within the wide range of permissible discretion and trial strategy.”
Estrada v. State, 143 Idaho 558, 561, 149 P.3d 833, 836 (2006) (internal citation omitted); see
also State v. Porter, 130 Idaho 772, 794, 948 P.2d 127, 149 (1997); State v. Dunlap, 155 Idaho

                                                  5
345, 385, 313 P.3d 1, 41 (2013). However, “’[w]here 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.’” Dunlap, 155 Idaho
at 385, 313 P.3d at 41 (2013) (quoting State v. Payne, 146 Idaho 548, 562, 199 P.3d 123, 137
(2008)).
       Two witnesses at trial, Jeremy Steinmetz and another witness involved in the fight,
Frankie Hughes, testified that directly after the attack in the hotel room, co-defendant Davis told
Thumm he was “going to prison.” Steinmetz also testified that a few minutes later, Davis was
“still freaking out” and told both Hughes and Thumm to burn the clothing they were wearing
because it could be used as evidence against them. Based on our analysis below, we conclude
that a motion to sever would not have been granted, and Bond was therefore not ineffective as to
this issue. For similar reasons, Wollen was not ineffective either.
       The district court dismissed Thumm’s petition as to the joinder issue on two separate
grounds. First, the court found that Davis’s statements were not hearsay and therefore the
statements would have been admitted against Thumm in a separate trial. As such, Thumm
suffered no prejudice having those statements admitted in a joint trial. Second, the court found
that there was no violation of the principles announced in Bruton, since Davis’s statements were
non-testimonial.
       Addressing the hearsay question first, we hold that the district court was correct. The
testimony Hughes and Steinmetz presented regarding Davis’s statements would have been
admissible at a separate trial based on exceptions to the hearsay rule. Thus, there is no
compelling evidence of a prejudicial result or that Thumm was denied a fair trial. Thumm’s trial
counsel was not ineffective for failing to object to joinder or for failing to move for severance.
       Steinmetz and Hughes both testified that after the altercation in the hotel room, Davis
told Thumm he was “going to prison.” This testimony was admitted to prove that Thumm’s co-
defendant, Davis, had knowledge that Thumm committed a felony, a necessary element of her
charge of accessory to the commission of a felony. Hughes also testified that Davis told Thumm
and Hughes, directly after the attack, that they should burn their clothes, presumably because of
the blood on them.
       Thumm argues that Hughes and Steinmetz’s testimony constituted hearsay, and had the
court not held that joinder was proper, the testimony would have been inadmissible. Thumm
                                                  6
claims that neither statement would have been admissible as excited utterances in a separate trial,
because witnesses testified that Davis was not excited when she made the statements. Thumm
cites first to the testimony of Steinmetz in the trial transcript to show that Davis was not excited:
       Q: How do you know that the individuals in the backseat heard [Davis’s]
       statement?
       A: She was speaking kind of loud.
       Q: Okay. She excited?
       A: Not excited. Freaked out about it.
Thumm then cites to Hughes’ testimony to suggest Davis was not excited:
       Q: Did [Davis] appear excited?
       A: No.
       Q: Okay. Did she appear animated?
       A: What’s that?
       Q: Was she speaking loudly?
       A: Yes.
       Thumm argues that since Bond did not object during either witness’s testimony, no
inquiry was made into the distinctions between being excited, animated, or “freaking out.” He
argues that Davis was logical and calculated when she made her statements, so these statements
would not have been admitted as excited utterances had an objection been made.
       Hearsay is a statement, other than one made by the declarant while testifying at trial,
offered to prove the truth of the matter asserted. I.R.E. 801(c). Hearsay is inadmissible except in
those circumstances provided by the Idaho Rules of Evidence. I.R.E. 802. An excited utterance is
an exception to the hearsay rule and is defined as “[a] statement relating to a startling event or
condition, made while the declarant was under the stress of excitement that it caused.” I.R.E.
803(2). There are two requirements of an excited utterance:
       “(1) an occurrence or event sufficiently startling to render inoperative the normal
       reflective thought process of an observer; and (2) the statement of the declarant
       must have been a spontaneous reaction to the occurrence or event and not the
       result of reflective thought.”
State v. Thorngren, 149 Idaho 729, 732, 240 P.3d 575, 578 (2010) (quoting State v. Field, 144
Idaho 559, 568, 165 P.3d 273, 282 (2007)).
       It is critical to our inquiry regarding the allegedly offending statements that Davis was
speaking very loudly, and was laboring under the effects of witnessing the melee when she made
                                               7
her statements. Hughes and Steinmetz both testified that Davis was animated and crying when
she told Thumm he was going to prison and needed to burn his clothes.
       It is not disputed that Steinmetz and Hughes’ testimony about Davis’s statements qualify
as hearsay statements. Yet despite Thumm’s contention that witnesses were unable to identify
Davis as being “excited,” the statements she made fall under the excited utterance exception. As
noted by the district court, both Steinmetz and Hughes testified that Davis was speaking in a
stressed or animated state when in the car. Just before Davis made the statement about prison and
burning clothes, she had witnessed a severe beating, an event sufficiently startling to “render
inoperative the normal reflective thought process.” She made the allegedly offending statements
almost immediately following the altercation, with little time to reflect on what had just
happened. The testimony Thumm highlights shows only that the witnesses misunderstood the
word “excited” as referring only to positive states of emotion.
       The focus of our inquiry is not whether a witness’ reaction fits neatly within the lexicon
of the word “excited.” The focus must be whether the criteria of Rule 803(2) are established: (1)
witnessing a startling event, coupled with (2) a spontaneous statement made under the stress of
the moment without taking time for reflective thought. Weighed against this standard, we hold
that Davis’s statements qualify as excited utterances.
       Since the statements were properly admitted in the joint trial, Thumm cannot rely on the
premise that had the trials been separate, the statements would not have been admissible against
him. The district court correctly found that the statements would have been admissible in a
separate trial and as such, Bond’s failure to move to sever Thumm’s case for trial cannot be said
to have prejudiced Thumm, even if failing to make such a motion was ineffective.
       Thumm also argues that the court erred in concluding that Hughes’s testimony about
Davis’s statement to burn the clothes was also admissible as a statement against interest, as it
inculpated Hughes. Thumm concedes that the statement about burning the clothes implicated
Hughes, but maintains it cannot be considered a statement against interest since Thumm is not
the declarant of the statement. The district court found that the statement about burning the
clothes also qualified as a statement against interest, but only for Hughes. We will not address
the merits of this issue. Since the trial court did not err in admitting the statements as excited
utterances, the fact that they may or may not have been statements against interest is


                                                 8
inconsequential. See State v. Flores, 162 Idaho 298, 302 n. 2, 396 P.3d 1180, 1184 n.2 (2017)
(“Because we affirm on [one] basis, we need not reach [the second] argument.…”).
       Thumm also argues that Bruton should have barred the joinder or required severance in
his case. The State counters that Crawford v. Washington, 541 U.S. 36 (2004) has abrogated the
Bruton rule in cases where non-testimonial statements are admitted against a defendant. The
district court agreed with the State’s argument, relying upon several non-Idaho cases in finding
that Bruton does not preclude the admission of non-testimonial hearsay statements by a co-
defendant. See U.S. v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013); U.S. v. Clark, 717 F.3d 790,
816 (10th Cir. 2013); State v. Gurule, 303 P.3d 838, 849 (N.M. 2013).
       Even though we have yet-to-rule on the efficacy of the Bruton rule after Crawford, we
decline to reach this issue on the record presented in this post-conviction case. We have affirmed
the district court based on the hearsay analysis set forth above. We will leave for another day
whether Crawford v. Washington, 541 U.S. 36 (2004) and its Confrontation Clause analysis
affects the Bruton rule in Idaho.
       Finally, Thumm argues that he suffered prejudice by having to split peremptory
challenges with Davis. This claim is unsupported by the record. Thumm has failed to address this
claim in detail and thus he failed to establish any prejudice under Strickland’s second prong
regarding the make-up of the jury. This claim therefore fails.

       2.      Additional alleged errors by trial counsel
       a. Lack of preparation.
       Several lack of preparation claims were alleged in the original petition for post-
conviction relief summarily dismissed by the district court: (a) failing to timely disclose an
expert witness who could have provided exculpatory evidence; (b) missing the deadline to
submit redacted tapes; (c) failing timely to file a motion to suppress lineups; (d) failing to meet,
communicate, prepare, or provide discovery to Thumm; and (e) failing to prepare adequately for
Helen Fischer’s testimony. Even with this litany of claims stated, Thumm noted:

              Given the number of claims and length of the materials and rulings,
       [Thumm] will focus on the most important claims. However, [Thumm] is
       expressly appealing the dismissal of the entire petition and all claims.

       In his Appellant’s Brief, Thumm raised only the issues of failure to provide discovery
and failure to timely move to suppress lineups, so only these issues will be considered here. See
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Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1132, 1138 (2010) (“[I]f the issue is only
mentioned in passing and not supported by any cogent argument or authority, it cannot be
considered by this Court.”).
        Thumm argues in his appellate briefs that both Wollen and Bond provided ineffective
assistance of counsel in two ways: (1) by failing to provide discovery to Thumm and (2) by
failing to timely move to suppress lineups. Each of these claims will be discussed in turn.
              i.    Failure to provide discovery.
        While Thumm’s criminal case was pending, the State and Bond stipulated to a protective
order that precluded Bond from sharing certain discovery with Thumm. Thumm claims that
Bond’s actions were not a strategic decision, because her stipulation prevented anyone from
disclosing names of witnesses or physically transferring reports to Thumm. This amounted to
ineffective assistance because it created a lack of preparation on Bond’s part. Thumm contends
that had he received a tardily disclosed fingerprint report through discovery, he would have
noticed its exculpatory nature and created a defense strategy based on it.
        We first note that Thumm does not address whether the fingerprint report was among the
discovery Bond stipulated to not provide to him because of fear that he might retaliate against
potential witnesses; however, since the report includes no names of potential witnesses, it is
assumed for purposes of our analysis that it was not among the discovery the court precluded
Thumm from receiving. In other words, we are assuming that there was nothing to prevent Bond
from giving the report to Thumm. This assumption favors Bond and means that Bond’s decision
to enter into the stipulation is inconsequential to our further analysis of this issue.
        This Court must liberally construe Thumm’s factual allegations in his favor for purposes
of this appeal, and the fingerprint report showed that Thumm’s fingerprints were not on some
bottles collected at the scene and ostensibly used as weapons. See a more detailed discussion
regarding the report infra, section B. Thus, the argument that Bond’s decision not to provide a
physical copy of the report to Thumm constituted deficient performance has some merit. Counsel
likely should have shared the report with her client.
        Even so, Thumm has failed to show that the outcome of his case would have been
different had he received this one report, especially given the strength of other evidence against
him. As discussed at the hearing on the motion for summary dismissal of the post-conviction
petition, the beer bottles were not part of the charging information; Thumm was charged with
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“stomping, punching, hitting. . .or in the alternative, aiding and abetting the other two that were
doing it,” and thus had Bond presented testimony that Thumm’s fingerprints were not on the
bottles it would not have changed the outcome of the case. In order to establish sufficient
prejudice to reverse the district court Thumm must establish a reasonable probability that, had
Bond provided the report to Thumm, and then acted upon the report in some unspecified fashion,
the result would have been different. “A reasonable probability of a different result is
accordingly shown when the government’s evidentiary suppression ‘undermines confidence in
the outcome of the trial.’” Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting United States v.
Bagley, 473 U.S. 667, 678 (1985)). Thumm has failed to establish that reasonable probability
here and his claim thus fails on that basis.
             ii.   Failure to move to suppress lineups.

       Thumm also argues that Bond was ineffective for failing to timely file a motion to
suppress lineups. Bond actually filed a motion to suppress what Thumm alleges were unduly
suggestive lineups – but the motion was filed late in the process – which is no surprise given
Bond’s late arrival to the case. Thumm asserts that Bond should have argued more strenuously
than she did that the lineups should have been suppressed. This claim fails because Bond did
raise the issue and argued the matter, which the trial court overruled. Therefore, we conclude that
Thumm has presented no convincing evidence that Bond was ineffective in this regard or that he
might not have been convicted but for what he characterizes as this mistake.
       On the first day of trial, Bond acknowledged she filed a late motion to suppress the photo
lineups; however, the court had already informed counsel that she could make an objection when
the evidence was presented at trial. When the issue arose, Bond objected and the court overruled
her objection. That the trial court considered the merits of the motion to suppress and denied it
establishes that Bond was aware of this issue and took appropriate procedural steps to address it.
Thumm has failed to establish that Bond was ineffective as to suppressing the lineups.
       Moreover, the objection itself is evidence that Bond was aware of the legal implications
of the lineups, although her motion to suppress was untimely. Assuming that a timely motion to
suppress would have resulted in a different outcome than the trial court’s ruling during trial,
Thumm fails to establish that the lack of photographic lineup would have changed the result. The
district court correctly denied this ineffective assistance of counsel claim.


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        b. Failure to renew objection about 404(b) evidence.
        Thumm argues that Bond was ineffective for failing to renew an objection that was raised
on the first day of trial, after the prosecutor sought to introduce evidence, pursuant to Idaho Rule
of Evidence 404(b), that four days after the fight, Thumm and Davis arrived at Steinmetz’s
residence and Thumm stated to Steinmetz, “Don’t say nothing.” Bond objected during trial,
claiming the statement was prejudicial to Thumm, but the trial court deferred ruling on the issue
until a more appropriate time by stating, “At first blush, it would appear to be overly prejudicial.
But I can’t do a balancing test unless I know all the facts.” The prosecutor later advised the court
that the State intended to admit the testimony Bond had previously objected to. The State argued
that the evidence was “clearly relevant to the charges” and to Thumm’s consciousness of guilt
and the court declared the statement was admissible. Thumm argues that Bond should have
renewed the prior objection about the admission of the statement and that failure to do so
prejudiced him at trial.
        Bond preserved her objection about the nature of the evidence by stating her objection at
the outset of trial. Failing to reassert the objection could be ineffective, for failing to remind the
court of the prior objection, but it could also have simply been a matter of strategy. Given the
highly deferential nature of our review of counsel’s decisions and conduct of the trial, we find no
deficiencies in Bond’s performance as to this evidence. When analyzing a claim for ineffective
assistance of counsel, counsel’s manner of cross-examination and objections to testimony (or
lack thereof) are strongly presumed acceptable and within the realm of tactical decisions. See
Giles, 125 Idaho at 924, 877 P.2d at 368. Thumm provides no evidence that Bond’s decision to
not object repeatedly to Steinmetz’s testimony that Thumm told him, “Don’t say nothing,” was
deficient.
        c. Failure to impeach Steinmetz’s testimony.
        Thumm also alleges that Bond was ineffective for failing to impeach Steinmetz during
trial with evidence about conflicting testimony that Steinmetz gave about his reason(s) for not
identifying Thumm in a photo lineup. During trial, Steinmetz testified that he declined to identify
Thumm during a police photo lineup because he was afraid of Thumm. Thumm claims that Bond
should have been more aggressive in her cross-examination of Steinmetz with his conflicting
testimony in the preliminary hearing, where Steinmetz testified that he chose not to identify
Thumm during the lineup because he was trying to protect Thumm, not because of fear of
                                                 12
retaliation. Thumm alleges that this failure also allowed the prosecutor to comment, in his
closing argument, that Steinmetz was afraid of Thumm, also prejudicing Thumm in the eyes of
the jurors.
        The State argues that Bond’s decision to not delve into specifics about Steinmetz’s fear of
Thumm on cross-examination was tactical and made sense because of the uncertainty of
Steinmetz’s response. Since Bond later cross-examined Steinmetz on a different topic, based on
the preliminary hearing transcript, the State argues her decision not to impeach Steinmetz based
on his potential fear of Thumm was not based on an objective shortcoming, such as not having
reviewed the transcript at all. It is possible that had Bond sought to impeach Steinmetz,
Steinmetz would have renewed his earlier claim that he was too afraid of Thumm to identify him
previously. Given that this Court will not second-guess strategic decisions, we hold that this
claim of ineffective assistance of counsel also fails.
        d. Failure to impeach Frankie Hughes.
        Thumm alleges that Bond was ineffective because she failed to impeach witness Hughes
based on the long prison sentence he was facing for his role in the attack (maximum of thirty
years), thus motivating him to provide “biased testimony against [Thumm].” Thumm argues that
his co-counsel’s questioning of Hughes about Hughes’s cooperation with the police, potentially
getting him a sentence of probation is insufficient and the jury should have been alerted that
Hughes was facing thirty years in prison, which would motivate him to lie.
        The State notes that Bond cross-examined Hughes on: (1) his interview with police in
which officers told him they would speak to the prosecutor about Hughes getting probation; and
(2) the fact that, despite Hughes’s testimony that he was not involved in the attack on the victim,
he was charged with two counts of aggravated battery, both of which had been bound over by a
magistrate judge. The State also refers to Bond’s closing argument, where she specifically
mentioned the battery charges against Hughes, arguing that Hughes had a lot to gain by “pointing
the finger” at Thumm.
        This claim is thus disproven by the record. While it is true that Bond did not specifically
ask about a 30-year sentence, the jury was aware of the potential for prison Hughes faced and
that he had a strong motivation to shift blame to Thumm for the incident. Davis’s attorney
elicited the following testimony at trial:


                                                 13
       Q: Mr. Hughes, you have said that when you talked with the police in May, they
       indicated to you that if you cooperated they would put in a good word with the
       prosecutor, maybe get you probation[;] correct?
       A: Yes.
       Q: They told you that if you cooperated, gave them information that they were
       seeking, that they might seek to get your bond lowered; correct?
       A: They said they would say—like they said they can take that into consideration.
       They didn’t say it was going to happen or nothing.
       Q: So, despite the fact that you tell us today that you weren’t involved in the
       aggravated battery on [Ohls], a Magistrate Judge heard the evidence earlier on in
       the case and found probable cause to believe that you were involved in the
       aggravated battery that took place on [Ohls]; isn’t that true?
       A: Yes.
Based on the jury’s awareness that Hughes had motivation to lie, Thumm has not offered enough
evidence to show that Bond’s decision not to impeach Hughes over his potential sentence was
anything but tactical. The district court found that Bond’s decisions in this regard were strategic
and not based on any shortcomings capable of objective review. At a minimum, the court found,
there is no genuine issue of material fact over the prejudice prong of Strickland. We agree that
this claim for ineffective assistance of counsel fails.

       e. Failure to renew objection of Davis’s use of “prison”.
       Thumm alleges ineffective assistance of counsel because Bond objected during the
preliminary hearing to Davis’s statement, “Vance you are going to prison,” but did not renew her
objection during the trial. Thumm claims that Bond’s initial objection proves that she was aware
the statement was an improper legal conclusion which would prejudice Thumm to the jury, so
her failure to renew the objection was deficient performance. Thumm maintains that he was
prejudiced by the jurors hearing the word “prison,” because another witness admitted to the jury
that one cannot go to prison for a misdemeanor.
       The State argues that Bond objected to the statement, before the start of trial, because
Davis is not a legal expert, thus her opinion or understanding of whether Thumm was going to
prison was not relevant. Despite Bond’s objection, the district court ruled Davis’s statement was
admissible.
       Despite Thumm’s contention on appeal, counsel objected to this statement and the court
tried to mitigate the risk of its admission being too prejudicial by ensuring the statement did not

                                                  14
get misconstrued as, “you’re going back to prison.” This brief reference to “prison” was not
prejudicial enough to overwhelm all the admissible evidence and it cannot be said to have
contributed to the verdict in any meaningful way. There is no evidence that had the objection
been made, it would have been sustained, since as discussed above, the statement was admissible
as an excited utterance. As a result, Thumm fails to show that Bond’s performance was deficient
or that he was prejudiced thereby.
       f. Failure to oppose proposed impeachment of witnesses by gang membership under
           Abel.
       The trial court ruled that evidence showing that Davis, Thumm, and another associate are
either members or associates of the Severely Violent Criminal prison street gang, would be
admissible under United States v. Abel. 469 U.S. 45 (1984). However, the court noted the
evidence would only be admissible to impeach on credibility and the possibility that it could
show a common scheme, plan, or identity for the reason the attack may have ensued. Bond did
not object to this ruling and conceded that the evidence could be used for impeachment purposes.
Thumm claims that Bond should have challenged this ruling as a violation of his Fifth, Sixth, and
Fourteenth Amendment rights to testify and present a complete defense. Thumm cites Rock v.
Arkansas, 483 U.S. 44 (1987), to support this contention.
       Thumm argues that Bond should have argued that Abel did not apply to potential
witnesses Ariel Carpenter and Chris Smith. Based solely on police reports, Thumm claims that
Carpenter was interviewed during investigation and told detectives that when the fight broke out,
she, Thumm, and Davis all ran from the room. Thumm argues that Bond’s failure to object to the
Abel ruling prevented Carpenter from being able to testify about her version of the events, which
prevented Thumm from being able to present a complete defense by choosing his own witnesses,
thus affecting the outcome of the trial.
       Thumm also maintains that impeachment of Smith under Abel would not have been
allowed because the State would not have been able to establish that both Thumm and Smith
shared membership in the same gang, as required by the Abel ruling. Thumm claims Smith
would have told the court that Thumm was the wrong suspect, which could have been
corroborated by a previous police report.
       Thumm acknowledges that the Court of Appeals already dealt with the Abel claim and
ruled against him; however, he maintains that if counsel had made some argument at trial on the
                                               15
prejudicial effect of the gang membership evidence, there is a reasonable probability the ruling
would have gone the other way and Carpenter and Smith would have been allowed to testify on
his behalf. He also claims that the court’s ruling only addresses the matter with regard to
evidentiary issues, but ignores the constitutional ramifications, i.e., violation of Thumm’s right to
present a complete defense and to choose his witnesses.
       In Abel, the United States Supreme Court held that
       [a] witness’ and a party’s common membership in an organization, even without
       proof that the witness or party has personally adopted its tenets, is certainly
       probative of bias.
469 U.S. at 52. In that case, the Court determined that the lower court had not abused its
discretion in admitting a witness’s description of the gang and its tenets since “the type of
organization in which a witness and a party share membership may be relevant to show bias.” Id.
at 54 (emphasis in original). The Court reasoned that if the organization is loosely knit, then the
inference of bias arising from the common membership might be small or nonexistent and thus
less probative, but specifically noted the wide discretion a district court has in determining the
admissibility of evidence. Id.
       Here, as the district court noted, there are several reasons this claim fails. First, the Court
of Appeals was already presented with the identical issue on direct appeal and found that the trial
court properly determined that the State could impeach witnesses who were in any gang with
evidence of their membership. State v. Thumm, 153 Idaho 533, 540, 285 P.3d 348, 355 (2012).
Second, Thumm did not provide affidavits from Smith or Carpenter to show that either witness
would have testified in accordance with the exculpatory statements. Thumm points only to the
police report. In relying solely on third-hand reports, Thumm has failed to present the proof
necessary to establish this claim. See Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct.
App. 2011) (“A claim for post-conviction relief will be subject to summary dismissal if the
applicant has not presented evidence making a prima facie case as to each essential element of
the claims upon which the appellant bears the burden of proof.”) Finally, Thumm has failed to
demonstrate that testimony from the desired witnesses would have affected the outcome of his
trial, which alone is fatal to a claim for ineffective assistance of counsel. The district court found
that at a minimum, the prejudice prong of Strickland is not satisfied here. We agree. This claim
for ineffective assistance of counsel fails.
       g. Failure to impeach detectives with report of photo lineup.
                                              16
       Thumm’s arguments over the testimony of the detectives involved in the case are
threefold. First, Thumm contends that he was denied effective assistance by Bond because she
failed to recall Detective Leavitt to discuss testimony about a photo lineup after Leavitt claimed
he could not recall, without refreshing his memory with a written report, whether Detective
Holland had shown Ohls and his girlfriend (another witness to the attack) a photo lineup. Rather
than showing him the report at that time, Bond stated, “[t]hat’s kind of important, so I will retain
you . . . on your subpoena and let you come back, so we can talk about that later.” Thumm
alleges this amounted to ineffective assistance of counsel because Leavitt was never recalled and
the lineup was never reconsidered.
       Second, Thumm alleges that Bond had another opportunity to discuss the lineup when
Holland testified, but failed to re-examine whether a lineup was shown to a witness a second
time. Thumm claims discussion of the lineup was critical and the report should have been used to
refresh both detectives, since a lineup was, in fact, presented to Ohls and his girlfriend, Everhart
and both failed to identify Thumm.
       Third, Thumm argues that Bond was ineffective for failing to impeach Holland about
lying to Hughes about the fingerprints on the bottles used as weapons. During recross-
examination, Bond asked Leavitt:
       Isn’t it true that in your interview on 5/1 of 2009 you told Frankie Hughes that
       you had fingerprints and DNA on a bottle that could connect him with hitting [ ]
       Everhart?
Leavitt testified that he did not recall making that statement and the court sustained a hearsay
objection on whether Holland may have so stated. Thumm alleges that Bond’s failure to ask
Holland the same question, during his later testimony, coupled with Bond’s possession of the
police report from the interview in question, amounted to deficient performance. Thumm claims
that Bond should have impeached Holland about the comment to Hughes, as the fingerprint
results had not yet been reported, making it impossible for Holland to know whose fingerprints
were on the weaponized bottles.
       We agree with the district court’s conclusion on this claim as well. Thumm fails to
identify how Bond was deficient for failing to “follow-up.” A lawyer’s choices of whom to call
as a witness and the manner of questioning to be performed fall within the presumptively
strategic decisions of counsel. Rather than provide evidence that the outcome of the trial might
have been different had Bond delved deeper into the potentially deceptive tactics of the
                                         17
detectives, he makes one conclusory statement that retained counsel forwent “even more chances
to show the jury that the state’s witnesses lie, even the police.” Again, at a minimum, Thumm
has failed to show that the prejudice prong of Strickland was met and cannot overcome the
strong presumption of effective assistance this Court must apply.
       h. Sentencing Counsel.
       Thumm makes no argument about sentencing counsel’s specific deficiencies, other than a
passing statement in a heading in his brief. Thus, we will not address this claim. Bach v. Bagley,
148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010).
       3.      Appellate Counsel
       Thumm claims that appellate counsel provided ineffective assistance on appeal by failing
to raise the Bruton, Abel, and Brady issues, in addition to several instances of prosecutorial
misconduct.
               To demonstrate deficient performance of appellate counsel for failure to
       raise a claim on appeal, the defendant must show that counsel made an objectively
       unreasonable decision to omit the claim. Courts have recognized that appellate
       counsel may fail to raise an issue on appeal because counsel “foresees little or no
       likelihood of success on that issue; indeed, the weeding out of weaker issues is
       widely recognized as one of the hallmarks of effective appellate advocacy.”
       Appellate counsel is not deficient for using reasonable professional judgment in
       deciding the most promising issues for appellate review and counsel is not
       required to raise issues which are reasonable considered to be meritless. Indeed,
       “appellate counsel who files a merits brief need not (and should not) raise every
       nonfrivolous claim, but rather may select from among them in order to maximize
       the likelihood of success on appeal.”
Dunlap v. State, 159 Idaho 280, 296–97, 360 P.3d 289, 305–06 (2015) (internal citations
omitted). The United States Supreme Court has stated that when an ineffective assistance claim
is based on failure to raise an issue on appeal, that only “when ignored issues are clearly stronger
than those presented, will the presumption of effective assistance of counsel be overcome.”
Smith v. Robbins, 528 U.S. 259, 288 (2000) (citation omitted). The question for this Court is
“whether, but for appellate counsel’s errors, a reasonable probability exists that the defendant
would have prevailed on appeal.” Dunlap, 159 Idaho at 297, 360 P.3d at 306.
       Here, had appellate counsel raised Bruton, Brady, Abel, or prosecutorial misconduct
claims on appeal, there is no evidence that any would have been successful and Thumm provides
no adequate argument otherwise. As the district court held, even if Thumm were able to


                                                18
demonstrate that counsel were deficient in this regard, Thumm was not prejudiced. The issues
raised likely would have failed on appeal for the same reasons that they fail here.
       As we have noted, the Court of Appeals addressed the Abel issue on direct appeal and
that determination shows that appellate counsel raised the issue already. As to the Brady claim,
post-conviction petitions are an appropriate time to raise such a claim, so failure to do so in
Thumm’s direct appeal did not prejudice Thumm in any way; the claim is being considered on
appeal now, as it was in the district court below.
       As to the prosecutorial misconduct issues, Appellate counsel raised three issues in that
regard: (1) improperly appealing to the jury’s passions and prejudices; (2) misstating the
reasonable doubt standard; and (3) using Thumm’s pre-Miranda silence to imply Thumm’s guilt.
Brief of Appellant, State v. Thumm, 153 Idaho 533, 285 P.3d 348 (2012). Counsel’s choice to
raise these instances, and not the instances alleged in the post-conviction petition, demonstrates a
tactical or strategic decision to winnow what may have appeared to be weaker issues. These
types of decisions suggest effective appellate advocacy, especially given the presumption of
effectiveness. Even if appellate counsel were deficient in any of the above regards, we agree with
the district court and find that Thumm was not prejudiced. This claim for ineffective assistance
of appellate counsel also fails.

B.     Brady Fingerprint Report
       Thumm asserts that the state violated Brady here by its late disclosure of the fingerprint
report. As background, it is important that we reiterate the law in Idaho for establishing a viable
Brady claim.
       The State has a duty to disclose exculpatory evidence to a defendant. Brady v.
       Maryland, 373 U.S. 83, 87 (1963). Specifically, “the suppression by the
       prosecution of evidence favorable to an accused upon request violates due process
       where the evidence is material either to guilt or to punishment, irrespective of the
       good faith or bad faith of the prosecution.” Id. Further, “a conviction obtained
       through use of false evidence, known to be such by representatives of the State,”
       violates the Fourteenth Amendment, as do convictions obtained in proceedings
       where “the State, although not soliciting false evidence, allows it to go
       uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 269 (1959).

State v. Dunlap, 155 Idaho 345, 389, 313 P.3d 1, 45 (2013). Beyond a mere duty to disclose, the
State has an expanded “duty to include volunteering exculpatory evidence never requested, or


                                                 19
requested only in a general way.” State v. Shackelford, 150 Idaho 355, 380, 247 P.3d 582, 607
(2010) (citing United States v. Bagley, 473 U.S. 667, 682 (1985)).
       “Proving a Brady violation requires a three-part showing: [1] The evidence at issue must
be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that
evidence must have been suppressed by the State, either willfully or inadvertently; and [3]
prejudice must have ensued.” Dunlap, 155 Idaho at 389, 313 P.3d at 45 (citations omitted).
Prejudice is shown where the “favorable evidence is material, and constitutional error results
from its suppression by the government, ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceedings would have been
different.’” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). “A reasonable probability
of a different result is accordingly shown when the government’s evidentiary suppression
‘undermines confidence in the outcome of the trial.’” Id. at 434 (quoting United States v. Bagley,
473 U.S. 667, 678 (1985)). It requires a “substantial, not just conceivable, likelihood of a
different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011); see also Shackelford, 150 Idaho
at 380, 247 P.3d at 607 (quoting Kyles, 514 U.S. at 434). Thus, evidence is material for purposes
of a due process analysis if there is a reasonable probability that disclosure of the undisclosed
evidence would have produced a different outcome in the proceeding.
       There is no evidence here that the State’s prosecutors knowingly or even negligently
suppressed evidence from the defense. Indeed, the record shows that while the fingerprint report
was tendered to defense counsel about a week before trial, it was tendered at the same time the
State received the report from the State crime laboratory. Thus, there was no purposeful delay or
even negligent delay by the prosecutor leading to the late production of the evidence.
       Even so, Thumm, relying on a case from the First Circuit, contends that the late
disclosure amounted to a Brady violation for which his counsel could not adequately prepare.
See United States v. Ingraldi, 793 F.2d 408 (1st Cir. 1986). The fingerprint report showed that
Thumm was the source of the latent print found on a broken Jose Cuervo Tequila bottle, but that
Thumm was excluded as the source of latent prints recovered on a certain Budweiser bottle,
broken pieces of a Jose Cuervo Tequila bottle, and an unopened bottle of Olde English 800 Malt
Liquor. No latent prints were discovered on several other tested pieces of evidence. Thumm
asserts that this report was exculpatory because there was no evidence presented at trial that
anyone was struck with the Tequila bottle—the only beverage container upon which Thumm’s
                                                20
prints were found—and because Hughes testified at trial that Thumm struck the victim with an
Olde English 800 Malt Liquor bottle and a Budweiser bottle—bottles seemingly similar to those
on which Thumm was excluded as a source of recovered prints. Thumm maintains that this
report was the only physical evidence tying him to the altercation and it impeached the testimony
of the State’s primary witness, Hughes, who testified that Thumm used both the beer and malt
liquor bottle in the attack.
        We acknowledge and agree that late disclosure of evidence by the State may, in some
cases, amount to a Brady violation. As the court held in Ingraldi, when the Brady issue is one of
delayed disclosure, as opposed to nondisclosure, “the test is whether defendant’s counsel was
prevented by the delay from using the disclosed material effectively in preparing and presenting
the defendant’s case.” 793 F.2d at 411–12. The Tenth Circuit has recognized that “[i]t would
eviscerate the purpose of the Brady rule and encourage gamesmanship were we to allow the
government to postpone disclosures to the last minute, during trial.” United States v. Burke, 571
F.3d   1048,    1054     (10th   Cir.   2009).   “[T]he   belated   disclosure   of   impeachment
or exculpatory information favorable to the accused violates due process when an ‘earlier
disclosure would have created a reasonable doubt of guilt.’ ” Id. (quoting United States v. Young,
45 F.3d 1405, 1408 (10th Cir. 1955)). The court held further:

        Where the district court concludes that the government was dilatory in its
        compliance with Brady, to the prejudice of the defendant, the district court has
        discretion to determine an appropriate remedy, whether it be exclusion of the
        witness, limitations on the scope of permitted testimony, instructions to the jury,
        or even mistrial.

Id. We agree with the rationale of these persuasive cases. Thus, when the State is “dilatory in its
compliance with Brady,” the trial court is given discretion to determine the appropriate remedy
to address the State’s carelessness.
        With that said, “not every delay in disclosure of Brady material is necessarily prejudicial
to the defense.” Id. at 1056. “To justify imposition of a remedy, the defense must articulate to the
district court the reasons why the delay should be regarded as materially prejudicial.” Id. Courts
should, when assessing the materiality of such a late disclosure, consider the significance of the
late disclosure in light of the entire record. United States v. Gonzalez-Montoya, 161 F.3d 643,
650 (10th Cir. 1998). When assessing the materiality, “the question is whether the favorable
evidence could reasonably be taken to put the whole case in such a different light as to
                                          21
undermine confidence in the verdict.” Strickler v. Greene, 527 U.S. 263, 290 (1999) (internal
citations and quotations omitted).
         With these standards in mind, we hold that the district court did not err in dismissing
Thumm’s Brady claim. Thumm’s claim fails because the fingerprint report was ultimately
disclosed, even if only a week before trial. Bond had enough time to review the report and use its
conclusions if she sought to do so; however, she simply objected to the report’s admission based
on its untimely disclosure and its contents were not referenced again. Bond did not seek a
continuance or another “appropriate remedy,” as cataloged by the court in Burke. 1 The State then
agreed not to use the report in its case-in-chief.
         Under such circumstances, we cannot conclude, in light of the entire record, that an
argument about Thumm’s fingerprints appearing or not appearing on certain evidence would
have swung the tide in his favor in this multi-faceted case. Indeed, as we noted previously
regarding Bond’s actions related to the report, the bottles were not part of the State’s theory in
the case. The information charged Thumm with “stomping, punching, hitting. . .or in the
alternative, aiding and abetting the other two that were doing it.” While Hughes testified that
Thumm used bottles in his assaultive actions against the victim, there is no showing that a more-
timely disclosure of the report would have allowed Bond to cross-examine Hughes in such a way
to make a difference in the outcome. Even had she called the State crime laboratory analyst to
discuss the findings in the report, we conclude that such evidence cannot “reasonably be taken to
put the whole case in such a different light as to undermine confidence in the verdict.” Strickler,
527 U.S. at 290.
C.       Prosecutorial Misconduct in Closing Argument
         Thumm alleges that the prosecutor violated his due process rights to a fair trial in several
ways, six of which Thumm identifies here. Thumm argues that had Bond performed effectively,
she would have objected to each of the following instances of prosecutorial misconduct,
triggering harmless error review, instead of the requisite fundamental error review. He argues

1
  The district court acknowledged that the late disclosure was likely due to belated production of the report by the
State crime lab, because of a difficulty with “resources.” Given our conclusion that utilization of the report’s
findings would have made no difference in the outcome of the case, we make no comment at this time about whether
a delay attributable to a backlog at the State’s crime lab could implicate a Brady violation. Even so, counsel has the
ability to seek a continuance of the trial, if necessary, to allow time to prepare adequately to present or meet that
evidence. Where appropriate, we encourage trial courts to be liberal in the application of their discretion to such
situations.
                                                         22
that had this been the case, the outcome of his direct appeal would have been different. The six
instances of prosecutorial misconduct alleged in the post-conviction petition are: (1)
disparagement of defense counsel and the presented defense; (2) unsupported comments about
the victim’s fear of Thumm, including a statement that this fear suggested Thumm was guilty of
aggravated battery; (3) arguments to the jury claiming witness Steinmetz was afraid of Thumm;
(4) mischaracterization of evidence about a witness’s admission of participation in the attack; (5)
use of inflammatory words while arguing that Thumm would not “let a kill go without tasting
blood”; and (6) descriptions of the scene of the crime alleging Thumm used beer bottles as
weapons during the altercation. Although Thumm raised the over-arching issue of prosecutorial
misconduct on direct appeal, each of the six instances in the post-conviction petition are new and
different instances of the prosecutor’s alleged misconduct.
         Thumm has made no showing that the first five instances of misconduct were unknown
and could not have reasonably been known during the direct appeal, so these claims of
prosecutorial misconduct are waived for purposes of the post-conviction petition. 2 Raudebaugh
v. State, 135 Idaho 602, 606, 21 P.3d 924, 928 (2001) (“It is well established that applicants for
post-conviction relief are not allowed to raise issues in post-conviction proceedings that could
have been raised on direct appeal unless the issues were not known and could not reasonably
have been known during the direct appeal.”). But the sixth instance of prosecutorial misconduct
in closing argument, Thumm argues, could not be raised on direct appeal, as the fingerprint
report had been suppressed, and was thus not part of the record.
         The State responds to this contention by citing Greenfield v. Smith, “[i]t is the
responsibility of the appellant to provide a sufficient record to substantiate his or her claims on
appeal.” 162 Idaho 246, 253, 395 P.3d 1279, 1286 (2017).
         The sixth alleged error occurred in the prosecutor’s description of the crime during
closing argument. The prosecutor stated:


2
  Thumm raised three instances of prosecutorial misconduct on direct appeal about the prosecution’s closing
arguments: (1) the prosecutor improperly appealed to the jury’s passions and prejudices by asking the jury to picture
themselves as the victim, allegedly causing jurors to act upon their fears; (2) the prosecutor misstated the reasonable
doubt standard by equating it to a “gut feeling” and equating the standard with everyday decisions; and (3) the
prosecutor used Thumm’s pre-Miranda silence to imply guilt. See State v. Thumm, 153 Idaho 533, 542–544, 285
P.3d 348, 357–359 (Ct. App. 2012). Each instance was dealt with by the Court of Appeals. Id. Appellate counsel’s
reference to these claims, but not the others now raised here, supports our conclusion that the failure to raise these
claims was a tactical decision that cannot be second-guessed on appeal.
                                                         23
       Vance is getting tired. Hey, give me that bottle. He needs something else to finish
       the job. He is getting tired. He needs something else. Give me that bottle. Hits
       him in the head a couple times, the forty ounce bottle. Then a beer bottle.
Thumm argues that because of the district court’s suppression of the fingerprint report after its
late disclosure, the prosecutor’s reference to the physical evidence was improper. He also
contends that the prosecutor was alone in knowing that the physical evidence did not support that
Thumm had used any bottles as weapons, but chose to violate Thumm’s due process right to a
fair trial anyway, since the defense was unable to respond because of the court’s previous
warnings about references to the fingerprint report. (“I am going to advise the Defense, if you get
up there and make a statement to that jury that there was absolutely no fingerprint evidence
presented in this case, they didn’t check for fingerprints, I will stop the closing argument right
then, and I will allow the State to reopen and call its expert.”).
       The State responds by asserting that it was Thumm’s responsibility to provide a sufficient
record to support his claims on appeal and because he failed to demonstrate or argue that he
could not, in the exercise of due diligence, have included the fingerprint results on direct appeal,
this claim has been forfeited under Idaho Code section 19-4901(b).

              “Where a prosecutor attempts to secure a verdict on any factor other than
       the law as set forth in the jury instructions and the evidence admitted during trial,
       including reasonable inferences that may be drawn from that evidence, this
       impacts a defendant’s Fourteenth Amendment right to a fair trial.”
State v. Abdullah, 158 Idaho 386, 440, 348 P.3d 1, 55 (2015) (quoting State v. Perry, 150 Idaho
209, 227, 245 P.3d 961, 979 (2010)). In carrying out their duty as public officers, prosecutors
must ensure that defendants receive fair trials by “‘guard[ing] against anything that would
prejudice the minds of the jurors, and tend to hinder them from considering only the evidence
introduced.’” Id. (quoting State v. Irwin, 9 Idaho 35, 43–44, 71 P. 608, 610–11 (1903)).
       Since the alleged prosecutorial misconduct was not objected to at trial, Idaho appellate
courts may only order reversal if the defendant can demonstrate that the violation qualifies as
fundamental error. Perry, 150 Idaho at 227, 245 P.3d at 979. In Perry, this Court also noted that
the appellant may still file a “petition for post-conviction relief proceedings in order to ascertain
whether defense counsel’s failure to object to the alleged error constituted ineffective assistance
of counsel.” Id. at n.7. A review for fundamental error includes a three-prong inquiry with the
burden resting on the appellant to show that the alleged error:

                                                  24
          (1) Violates one or more of the defendant’s unwaived constitutional rights; (2)
          plainly exists (without the need for any additional information not contained in
          the appellate record, including information as to whether the failure to object was
          a tactical decision); and (3) was not harmless. If the defendant persuades the
          appellate court that the complained of error satisfies this three-prong inquiry, then
          the appellate court shall vacate and remand.
Id. at 228, 245 P.3d at 980.
          To be granted post-conviction relief on an issue that could have been raised on direct
appeal, but was not, the appellant must show, by substantial factual showing by affidavit,
deposition, or otherwise, that the asserted claim 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.” Stuart v. State, 118 Idaho 865, 889, 801 P.2d 1216, 1241 (1990).
          There were no objections at trial to the closing argument referencing the use of bottles as
weapons. As the district court noted, even without Bond’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, he conclusively states, in a footnote, that the prosecutorial
misconduct 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.
          Alternatively, even if this Court were to assume error, it can also conclude, beyond a
reasonable doubt, that without the comment by the prosecutor, the outcome of the trial would
have been the same. Even so, this claim has been waived for failure to raise the issue on direct
appeal.

D.        Cumulative Error
          Thumm appears to argue, by citing the cumulative error standard, that the accumulation
of errors during trial, in the aggregate, were enough to have warranted a new trial. The intent
may have been to argue that even if this Court were to determine that the errors listed above are
not fundamental and/or are harmless, they are still errors and must be considered under the
doctrine of cumulative error. (“[Thumm] raises many errors with the first two being the most
significant and the rest having a more cumulative effect.”). Except for the brief reference to the
doctrine in the “standard of review” section of his brief, Thumm failed to provide any specific

                                                   25
argument about how the errors, when viewed altogether, produced a prejudicial effect, entitling
him to relief. Thus, this argument can be summarily rejected.
       Even if we were to consider this argument under the doctrine of cumulative error, a
necessary predicate to a finding of cumulative error is a finding of more than one error. Perry,
150 Idaho at 230, 245 P.3d at 982. Thumm has failed to assert errors sufficient to invoke the
doctrine of cumulative error. Even if some of the alleged errors were found to have existed at
trial, these unobjected-to errors do not rise to the level of fundamental error.
                                         VI. CONCLUSION
       For all these reasons, we affirm the district court’s granting of summary disposition of all
of Thumm’s claims for post-conviction relief.
       Chief Justice BURDICK, Justices BRODY, STEGNER and HORTON, CONCUR.




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