                   IN THE SUPREME COURT OF THE STATE OF IDAHO

                                         Docket No. 46252

KATHERINE LEA STANFIELD,                              )
                                                      )
     Petitioner-Appellant,                            )
                                                               Boise, June 2019 Term
                                                      )
v.                                                    )
                                                               Opinion Filed: December 3, 2019
                                                      )
STATE OF IDAHO,                                       )
                                                               Karel A. Lehrman, Clerk
                                                      )
     Respondent.                                      )
                                                      )

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
         County. Jason D. Scott, District Judge.
         The judgment of the district court is vacated in part and affirmed in part. The case
         is remanded for further proceedings.
         Ferguson Durham, PLLC, Boise, for appellant Katherine Lea Stanfield. Craig H.
         Durham argued.

         Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent State of
         Idaho. Kenneth K. Jorgensen argued.
                                     _____________________

STEGNER, Justice.
         Katherine Lea Stanfield appeals from the district court’s judgment summarily dismissing
her petition for post-conviction relief. Stanfield was a daycare provider with decades of
experience caring for young children. On December 11, 2009, she was caring for her two
grandsons and W.F., the two-year-old son of her daughter’s boyfriend. W.F. collapsed while in
Stanfield’s care and was rushed to a hospital emergency room. Two days later, he was taken off
life support and died. In 2012, a jury found Stanfield guilty of first-degree murder committed
through the aggravated battery and death of a child under twelve years old.
         Stanfield’s direct appeal to this Court was unsuccessful. State v. Stanfield, 158 Idaho 327,
347 P.3d 175 (2015). She subsequently filed a petition for post-conviction relief based on
allegations of ineffective assistance of trial counsel and violations of her due process rights.
During the trial, several witnesses testified that W.F. had suffered serial abuse, the implication
being that Stanfield had been the perpetrator of the abuse.


                                                  1
       Stanfield’s daughter had personally observed W.F.’s father commit acts of abuse on W.F.
She informed Stanfield’s lawyers of her observations. In addition, W.F.’s mother informed a
police investigator that she had also witnessed W.F.’s father abuse him and implored the
authorities to investigate him. However, Stanfield’s attorneys never elicited this evidence at trial.
Stanfield maintains her lawyers were ineffective in their failure to present this potentially
exculpatory evidence.
       The State moved for summary dismissal of her petition, which the district court granted.
On appeal, Stanfield argues that the district court erred in not granting her an evidentiary hearing
on four of her claims. Because there are genuine issues of material fact presented in Stanfield’s
petition, we vacate the district court’s summary dismissal and remand so that Stanfield may be
afforded an evidentiary hearing to determine whether her lawyers at trial were ineffective.

                          I.   FACTUAL AND PROCEDURAL BACKGROUND
       Stanfield was convicted of first-degree murder of W.F. by aggravated battery on a child
under twelve years old. In December 2009, Stanfield provided daycare primarily for her two
grandsons and W.F., the son of her daughter’s boyfriend. Stanfield had been caring for W.F.
most weekdays during the previous four months.
       On December 11, 2009, Stanfield called the Ada County Sheriff’s dispatch service to
report W.F. had fallen and was unresponsive. W.F. was transported to St. Luke’s medical facility
where he underwent a number of tests, including two CT scans, which indicated severe head
trauma. W.F. never regained consciousness and died two days later when taken off life support.
An autopsy revealed axonal injury to the brain. The pathologist who performed the autopsy
concluded the injury could have been caused by either hypoxia or trauma. The pathologist
suggested further studies by a neuropathologist. The neuropathologist’s report concluded that
W.F.’s death had been caused by non-accidental trauma.
       Police questioned Stanfield and her two grandsons, C.D. (aged 8) and J.D. (aged 5), about
the incident immediately after W.F. was transported to the hospital and multiple times following
W.F.’s death. Ultimately, in September 2010, Stanfield was charged with first-degree murder by
aggravated battery on a child under twelve years old. Stanfield maintained that W.F. was not
pushed or shaken but had fallen down while she was in the kitchen. C.D. and J.D. both
corroborated Stanfield’s version of events. Multiple experts concluded that W.F.’s injuries were
inconsistent with this scenario. Stanfield pleaded not guilty and went to trial in May 2012. A jury


                                                 2
returned a verdict of guilty on June 4, 2012. She was sentenced to an indeterminate life sentence
with a mandatory minimum sentence of ten years.
       Stanfield brought a direct appeal of her conviction. In affirming the district court, this
Court wrote: “The primary issue at trial was what—or who—caused the injuries that resulted in
W.F.’s death. The State contended that W.F. died from non-accidental head trauma resulting
from Stanfield abusing him.” Stanfield, 158 Idaho at 330, 347 P.3d at 178.
       Stanfield filed a post-conviction relief action following her unsuccessful appeal to the
United States Supreme Court. Stanfield v. Idaho, 136 S. Ct. 794 (2016) (mem). She contends that
her trial lawyers were ineffective for: (1) failing to adequately prepare, investigate, or present
evidence that W.F.’s father had abused W.F.; (2) failing to present expert testimony regarding
Stanfield’s lack of emotional response to W.F.’s injuries; (3) unreasonably failing to object to a
statement by the prosecutor that shifted the burden of proof to Stanfield; and (4) unreasonably
waiving jury instructions on all lesser-included offenses.
       In particular, Stanfield maintains that her lawyers were ineffective in failing to combat
the State’s insinuation that Stanfield was W.F.’s abuser. The district court’s decision
acknowledged that the State attempted at trial to portray Stanfield as W.F.’s abuser:
              Stanfield claims her counsel rendered ineffective assistance by not
       meeting the prosecution’s evidence and argument that W.F. was an abused child
       with evidence that the abuser was W.F.’s father, Lance Fesler. Without that
       evidence, she says the jury might have convicted her of W.F.’s murder because it
       “had only Mrs. Stanfield to blame for the ‘indicators’ of child abuse.”
               During closing arguments, the prosecutor indeed argued that W.F.’s
       various injuries “are indicators of a child being abused. [Witnesses] also told you
       that you can look at the child’s behavior, [there are] emotional or behavioral
       indicators that a child is being abused . . . . [Y]ou will see that they are all present
       in this case.” It doesn’t appear that the prosecutor explicitly argued that Stanfield
       had abused W.F. in the past. But because the State repeatedly mentioned W.F.’s
       old bruises, as well as the behavioral signs that he had been abused, and didn’t
       present evidence of who the past abuser was, the jury could have inferred that
       Stanfield was responsible for the past abuse the prosecutor contended had
       occurred. This opens the possibility that the jury convicted her on propensity
       grounds.
       In addition, Stanfield had admissible evidence to present that W.F. had been abused by
someone other than Stanfield: W.F.’s biological father. Both W.F.’s mother and Stanfield’s
daughter, who was cohabitating with W.F.’s father for the four months prior to W.F.’s death,
claimed that they had witnessed W.F.’s father abuse W.F. Stanfield’s daughter advised


                                                  3
Stanfield’s lawyers that she had witnessed W.F.’s father abuse W.F. However, this evidence was
not elicited at trial. The district court rejected Stanfield’s claims of ineffective assistance of
counsel because of the strong presumption afforded counsel in the realm of tactics and denied
Stanfield the opportunity to introduce evidence that her lawyers had been ineffective. For the
reasons set forth in this opinion, we hold the district court erred in summarily dismissing
Stanfield’s petition without affording her an opportunity to have an evidentiary hearing.
                                    II. STANDARD OF REVIEW
       A petition for post-conviction relief initiates a civil proceeding, even though it is a
continuation of an underlying criminal proceeding. Like most civil actions, the burden is on the
petitioner to “prove the allegations in the request for relief by a preponderance of the evidence.”
State v. Dunlap, 155 Idaho 345, 361, 313 P.3d 1, 17 (2013) (citation omitted). 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 the Idaho Rule of Civil Procedure 8(a)(1). State v. Abdullah, 158 Idaho 386,
417, 348 P.3d 1, 32 (2015) (citation omitted). “The application must present or be accompanied
by admissible evidence supporting its allegations, or the application will be subject to dismissal.”
State v. Yakovac, 145 Idaho 437, 444, 180 P.3d 476, 483 (2008) (citing I.C. § 19–4903).
               Idaho Code § 19-4906 authorizes summary dismissal of an application for
       post-conviction relief, either pursuant to motion of a party or upon the trial court’s
       own initiative. Summary dismissal of an application is the procedural equivalent
       of summary judgment under I.R.C.P. 56. . . . [W]hen reviewing a district court’s
       order of summary dismissal in a post-conviction relief proceeding, we apply the
       same standard as that applied by the district court. Thus, when reviewing such a
       dismissal, this Court must determine whether a genuine issue of fact exists based
       on the pleadings, depositions and admissions together with any affidavits on file.
Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010) (internal citations and quotation
marks omitted).
       “On review of a dismissal of a post-conviction relief application without an
       evidentiary hearing, this Court will determine whether a genuine issue of fact
       exists based on the pleadings, depositions and admissions together with any
       affidavits on file.” Workman v. State, 144 Idaho 518, 523, 164 P.3d 798, 803
       (2007) (citing Gilpin-Grubb v. State, 138 Idaho 76, 80, 57 P.3d 787, 791 (2002)).
       A claim for post-conviction relief may only be summarily dismissed if it does not
       present a genuine issue of material fact. I.C. § 19-4906(b); Baldwin v. State, 145
       Idaho 148, 153, 177 P.3d 362, 367 (2008). A genuine issue of material fact exists
       when “the appellant has alleged facts in his petition that if true, would entitle him



                                                 4
       to relief.” Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004)
       (internal citations omitted).

               Because the analysis of that question requires the courts to evaluate the
       petitioner’s claim “if true,” the courts must liberally construe the facts and draw
       reasonable inferences in favor of the petitioner. Id. Additionally, it means that “[a]
       court is required to accept the petitioner’s unrebutted allegations as true....”
       Baldwin, 145 Idaho at 153, 177 P.3d at 367; Saykhamchone v. State, 127 Idaho
       319, 321, 900 P.2d 795, 797 (1995).

Wheeler v. State, 162 Idaho 357, 359, 396 P.3d 1239, 1241 (2017).

                                          III. ANALYSIS
A.     Ineffective assistance of counsel.
       On appeal, all of Stanfield’s claims involve allegations of ineffective assistance of
counsel. This Court employs the Strickland v. Washington, 466 U.S. 668, 687–88 (1984) two-
prong test to evaluate whether a criminal defendant received ineffective assistance of counsel.
Dunlap v. State, 141 Idaho 50, 59, 106 P.3d 376, 385 (2004). Under Strickland, “[a] defendant
must prove both that (1) counsel’s performance was deficient and (2) the deficiency prejudiced
the defense.” Adamcik v. State, 163 Idaho 114, 123, 408 P.3d 474, 483 (2017), cert. denied, 138
S. Ct. 1607 (2018); see also Strickland, 466 U.S. at 687.
       For the deficient-performance prong, “[a]n appellant must demonstrate ‘that the
attorney’s representation fell below an objective standard of reasonableness[.]’” Adamcik, 163
Idaho at 123, 408 P.3d at 483 (quoting Gilpin-Grubb v. State, 138 Idaho 76, 81, 57 P.3d 787, 792
(2002)). The appellant must overcome “a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance[.]” Strickland, 466 U.S. at 689. In addition,
“strategic and tactical decisions will not be second guessed or serve as a basis for post-conviction
relief under a claim of ineffective assistance of counsel unless the decision is shown to have
resulted from inadequate preparation, ignorance of the relevant law or other shortcomings
capable of objective review.” Pratt v. State, 134 Idaho 581, 584, 6 P.3d 831, 834 (2000) (citation
omitted).
       In order to prove the prejudice prong, “the appellant must show a reasonable probability
that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. A
reasonable probability is a probability sufficient to undermine confidence in the outcome. The




                                                 5
likelihood of a different result must be substantial, not just conceivable.” Adamcik, 163 Idaho at
123, 408 P.3d at 483 (internal citations and quotation marks omitted).
B.     The district court erred by summarily dismissing three of Stanfield’s claims.
       1. There is a genuine issue of material fact as to whether Stanfield’s lawyers were
          deficient by not presenting evidence that someone other than Stanfield abused W.F.
       During Stanfield’s trial, the State introduced substantial evidence that W.F. had suffered
abuse prior to December 11, 2009, the date Stanfield called for emergency help. During his
closing argument, the prosecutor spent significant time detailing W.F.’s injuries, both old and
new, including bruises, head injuries, hemorrhages, and damage to the abdomen. In addition, the
prosecution described W.F.’s behavior as that of an abused child. Specifically, W.F., a two year
old, was pulling out his eyelashes and pinching himself hard enough to self-inflict pain. His
weight had also declined. Although the State never explicitly mentioned that Stanfield was the
perpetrator, it clearly implied that she was. Without evidence that someone else inflicted the
abuse, the jury was left to infer that Stanfield was the person responsible for the abuse of W.F.
       Stanfield alleges that her trial lawyers were ineffective for failing to present an alternate
explanation for W.F.’s abuse, even though they had evidence that W.F.’s father had abused W.F.
prior to his death. She argues that without this evidence, the jury was left to infer that Stanfield
had abused W.F. and, therefore, that it was more likely that she had abused him on the day in
question, ultimately causing his death. In support of her petition, Stanfield filed: (1) an affidavit
from Stacie Duval, Stanfield’s daughter; (2) a police report containing an interview of W.F.’s
biological mother; and (3) her own sworn declaration. Each of these documents raise an issue of
fact by suggesting that W.F.’s father had previously abused W.F. Further, because Stanfield’s
daughter had discussed her observations with Stanfield’s lawyers, the documents demonstrated
that Stanfield’s attorneys were aware of these allegations. However, for reasons that remain
unexplained, Stanfield’s lawyers never attempted to rebut the State’s implication that Stanfield
had abused W.F.
       Stanfield does not argue that her lawyers should have objected to the State’s evidence
regarding the prior abuse. Rather, she contends that her lawyers should have presented evidence
that someone else committed the abuse. The district court stated that a failure to present such
evidence is similar to a situation in which “the defense fails to object under I.R.E. 404(b) to
evidence of a defendant’s prior bad acts.” Stanfield’s contention is that the failure to introduce



                                                 6
evidence that someone else abused W.F. allowed the jury to convict her on propensity grounds.
The district court’s comparison to an I.R.E. 404(b) issue is warranted. However, the district court
summarily dismissed Stanfield’s claim because it found that decisions regarding the presentation
of evidence were tactical decisions.
         The documents submitted by Stanfield created a genuine issue of material fact as to
whether her trial lawyers were deficient. The district court focused on the lack of an affidavit
from Stanfield’s trial lawyers regarding whether the decision was strategic. However, the
documents submitted, if true, were enough to create a genuine question as to whether Stanfield’s
trial lawyers were ineffective. Consequently, an evidentiary hearing should have been conducted.
         Stanfield submitted evidence to the district court from two sources that W.F.’s father had
abused W.F. on prior occasions. There was a police report 1 detailing a conversation with W.F.’s
mother, Valerie Thorpe, in which she stated W.F.’s father had abused W.F. in the past. Thorpe
also provided the police with a hand-written note imploring them to investigate W.F.’s father as
a possible perpetrator because of his violent tendencies and previous abuse of W.F. There was
also an affidavit from Stanfield’s daughter, Stacie Duval, that stated she had witnessed W.F.’s
father abuse W.F. on multiple occasions. Additionally, Duval’s affidavit indicated she had
advised Stanfield’s lawyers of the abuse and provided evidence that the lawyers’ decision to
forego the testimony implicating W.F.’s father of abusing W.F. was not a strategic decision.
First, Duval stated Stanfield’s attorneys told her “the defense would not be able to present
evidence of Lance’s record at the trial.” Next, she stated, “[w]hen I tried to tell [Stanfield’s]
attorneys about some of the particular incidents of abuse that Lance directed toward [W.F.], they
told me it was too late for them to bring it in the case.” Assuming these statements to be true as
1
  The Uniform Post-Conviction Procedure Act requires that the petitioner attach “[a]ffidavits, records, or other
evidence supporting [her] allegations” to the petition for post-conviction relief. I.C. § 19-4903. Here, the police
report is “other evidence supporting” Stanfield’s allegation. In essence, Stanfield’s allegation is that her attorneys
were ineffective for failing to introduce evidence that W.F.’s father abused W.F., which is detailed in the police
report. We recognize that our case law states that the petition must include “admissible” evidence supporting the
allegations. See, e.g., Thumm v. State, 165 Idaho 405, 412, 447 P.3d 853, 860 (2019). However, our case law has
been ambiguous as to what constitutes “admissible evidence” in the context of post-conviction cases. See Severson
v. State, 159 Idaho 517, 520, 363 P.3d 358, 361 (2015) (recognizing that post-conviction relief cases are civil in
nature despite the underlying criminal conviction). In this case, the gravamen of Stanfield’s allegation is that her
attorneys failed to introduce certain exculpatory evidence; accordingly, any evidence supporting that claim only
needed to be admissible at her criminal trial to support the allegation that Stanfield’s attorneys were ineffective. It is
therefore not necessary that the evidence be admissible at the continuing civil proceeding for post-conviction relief
to constitute “evidence supporting [her] allegations.” Here, the police report would have been admissible at
Stanfield’s criminal trial. See I.R.E. 803(8) (allowing the admission of a police report by an accused in a criminal
case). As a result, the police report substantiates Stanfield’s claim that her attorneys were ineffective. Notably, this is
a narrow exception and does not necessarily apply to all evidence submitted with a post-conviction petition.


                                                            7
required by the procedural posture of this matter, there is a genuine issue of material fact as to
whether Stanfield’s lawyers made a strategic decision to not present the evidence of an alternate
perpetrator, or whether such strategy was based on “inadequate preparation, ignorance of the
relevant law or other shortcomings capable of objective review.” 2 Pratt, 134 Idaho at 584, 6 P.3d
at 834 (citation omitted).
         Additionally, the district court relied on Ramsey v. State, 159 Idaho 887, 891, 367 P.3d
711, 715 (Ct. App. 2015) when it should have relied on Bias v. State, 159 Idaho 696, 365 P.3d
1050 (Ct. App. 2015). In both cases, the inadmissible evidence concerned past allegations of rape
against each of the defendants and counsel failed to object to the testimony. Ramsey, 159 Idaho
at 891, 367 P.3d at 715; Bias, 159 Idaho at 704, 365 P.3d at 1058. However, the cases arrived at
opposite conclusions with no discussion as to why. In Ramsey, the Court of Appeals held that
Ramsey had not created a genuine issue of material fact regarding deficient performance due to
his failure to present evidence of inadequate preparation, ignorance of the law, or other
shortcomings capable of objective evaluation. Ramsey, 159 Idaho at 891, 367 P.3d at 715. In
comparison, in Bias, the court held that an evidentiary hearing was required when the petitioner
had alleged that his trial counsel had been deficient because of a failure to object to the evidence,
and the evidence would likely have been excluded if Bias’s attorney had objected to it. Bias, 159
Idaho at 704, 365 P.3d at 1058. While no explanation is apparent as to why the Court of Appeals
arrived at different outcomes in substantially similar cases, we hold that the outcome in Bias is
more appropriate because of the relative burdens on a motion for summary dismissal. To hold
otherwise would place an impermissibly high hurdle for a petitioner to overcome when seeking
an evidentiary hearing.
         Next, there is an issue of material fact regarding prejudice. Here, the district court wrote,
         But because the State repeatedly mentioned W.F.’s old bruises, as well as the
         behavioral signs that he had been abused, and didn’t present evidence of who the
         past abuser was, the jury could have inferred that Stanfield was responsible for the


2
  The district court was critical of Stanfield’s post-conviction lawyers because the record did not include an affidavit
from Stanfield’s trial lawyers: “One way or another—by obtaining an affidavit, or by seeking permission to conduct
a deposition—she could’ve obtained and presented evidence of her [trial] counsel’s [sic] reasoning.” However,
while discovery disclosing trial counsels’ tactical decision-making would normally be helpful, it was unnecessary
under the circumstances. If trial counsel provided an affidavit indicating the decision to forego this evidence was
tactical, Duval’s affidavit would impeach that testimony. If trial counsel testified that the decision was not tactical,
then Duval’s testimony would corroborate trial counsels’ testimony. Either way there is a genuine issue of fact to be
resolved at an evidentiary hearing.


                                                           8
         past abuse the prosecutor contended had occurred. This opens the possibility that
         the jury convicted her on propensity grounds.

Accordingly, because the jury could have convicted Stanfield on propensity grounds, the failure
to introduce evidence of the prior abuse by W.F.’s father undermines the confidence in the
outcome of the trial. There is a material question of fact as to whether the outcome would have
been different had evidence been presented that someone other than Stanfield had committed the
abuse. While there were suggestions and innuendo suggesting that Stanfield abused W.F., there
was no direct evidence. There was direct evidence that the perpetrator of the prior abuse of W.F.
was W.F.’s father. However, for reasons that remain unexplained, Stanfield’s lawyers did not
present this potentially compelling evidence. An evidentiary hearing is the best mechanism for
Stanfield’s lawyers to explain their trial tactics, be they strategic or otherwise.
         Therefore, because there is a genuine issue of material fact as to (1) whether Stanfield’s
trial lawyers were deficient, and (2) whether there is a substantial likelihood of a different result
had they elicited the testimony that was available, the district court erred in summarily
dismissing Stanfield’s claim.
         2. There is a genuine issue of material fact as to whether Stanfield’s lawyers were
            deficient in not offering evidence of her emotional state.
         During Stanfield’s trial, witnesses testified that when they arrived at Stanfield’s home
following the 911 call, Stanfield was unemotional, indifferent, or not normal. Additionally, the
prosecutor argued in closing arguments that Stanfield had not expressed emotion surrounding
W.F.’s fall and eventual death. The prosecutor also emphasized that Stanfield’s actions were
“inconsistent with innocence.” In response, the defense put on lay witnesses to explain
Stanfield’s typical demeanor; however, despite having disclosed a mental health expert regarding
this issue, no expert was called at trial.
         Stanfield alleges that her trial lawyers were ineffective due to a failure to present expert
testimony from Dr. Craig W. Beaver to explain her lack of emotion after W.F.’s injury. In her
petition, Stanfield included a letter from Beaver that explained that due to multiple traumatic
incidents in her life, 3 “it is not unusual that she could appear unemotional, disorganized and
compulsive.” Stanfield argues that without this testimony the jury was able to infer a
consciousness of guilt due to her lack of emotion.
3
 According to Beaver’s letter, Stanfield had suffered from sexual abuse as a child, the death of an adult son, and the
killing of a daughter by the police.


                                                          9
        The district court summarily dismissed Stanfield’s claim because it found that decisions
regarding the presentation of evidence are tactical decisions. For reasons similar to those noted
above, the district court erred in dismissing Stanfield’s claim.
        Here, trial counsel had performed all the necessary pretrial work to be able to call Beaver
at trial, including listing him as a witness. Stanfield has alleged that it was unreasonable not to
call a witness who would have been helpful in explaining Stanfield’s flat affect or lack of
emotion. It is hard to understand what was strategically gained by not calling Beaver. Thus, it is
possible that her lawyers’ conduct fell below the objective standard of reasonableness.
Accordingly, there is a material question of fact as to whether the decision not to call Beaver was
based on “inadequate preparation, ignorance of the law or other shortcomings capable of
objective review.” Pratt, 134 Idaho at 584, 6 P.3d at 834 (citation omitted).
        Further, there is a genuine issue of material fact regarding the probability of a different
outcome. The outcome of the trial largely depended on Stanfield’s credibility and account of the
events at her house at the time W.F. was injured. Her emotional response could go to the jury’s
assessment of her credibility. Further, the State heavily implied that her lack of an emotional
response constituted consciousness of guilt. Therefore, there is a genuine issue of material fact
regarding the likelihood of a different outcome, especially when considered as part of the total
accumulation of errors.
        3. There is a genuine issue of material fact regarding whether Stanfield’s trial lawyers
           were deficient by not objecting to improper statements made by the prosecutor.
        During his rebuttal argument, the prosecutor discussed events and circumstances that
Stanfield had characterized as “mere coincidences.” The particular language that Stanfield now
objects to is as follows:
               Ladies and gentlemen, I just want to talk to you one last thing [sic] about
        coincidences.
                This defendant wants you to accept a number of things as mere
        coincidences. In order for her to be not guilty of this crime, she wants you to
        accept that the following are coincidences.
(Italics added.)
        Stanfield alleges that her lawyers were ineffective by not objecting to the prosecutor’s
statement as shifting the burden of proof to her. Stanfield argues that had trial counsel objected,




                                                 10
the trial court would have stopped the argument, or Stanfield would have had a more favorable
appellate review.
       The district court dismissed this claim because it found that the prosecution was merely
commenting on the defense’s case, not implying that Stanfield had the burden of proof.
Therefore, any objection by trial counsel would have been unfounded and would have been
overruled. On appeal, Stanfield argues that the district court erred in its reasoning because the
statements made are “akin to saying that to acquit the defendant the jury must believe the
defendant and find that the State’s witnesses are not truthful.”
       “Closing argument ‘serves to sharpen and clarify the issues for resolution by the trier of
fact in a criminal case.’” State v. Herrera, 164 Idaho 261, 273, 429 P.3d 149, 161 (2018)
(quoting State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007)). Generally,
“both parties are given wide latitude in making their arguments to the jury and discussing the
evidence and inferences to be made therefrom.” State v. Ehrlick, 158 Idaho 900, 928, 354 P.3d
462, 490 (2015) (citing Dunlap, 155 Idaho at 368, 313 P.3d at 24). Prosecutorial arguments
implying that the defense bears the burden of proof are improper, but the prosecution may
comment on the defendant’s case if it is based solely on inferences from evidence presented at
trial. State v. Moses, 156 Idaho 855, 869, 332 P.3d 767, 781 (2014).
       A prosecutor commits misconduct when he diminishes or distorts the State’s burden to
prove the defendant’s guilt beyond a reasonable doubt. State v. Raudebaugh, 124 Idaho 758, 769,
864 P.2d 596, 607 (1993). In Adamcik, this Court held that “comments intended to highlight the
weaknesses of a defendant’s case do not shift the burden of proof to the defendant where the
prosecutor does not argue that a failure to explain them adequately requires a guilty verdict and
reiterates that the burden of proof is on the government.” State v. Adamcik, 152 Idaho 445, 482,
272 P.3d 417, 454 (2012) (citation omitted).
       Here, the prosecutor’s statements are more akin to the situation mentioned in Adamcik
where a prosecutor argues that a failure to explain a weakness requires a guilty verdict. Id. The
statement, “[i]n order for her to be not guilty of this crime” implies that she somehow lost the
presumption of innocence. This is not a mere comment on the defendant’s case. Stanfield is
correct that even if the jury did not believe Stanfield’s versions of the events, the State could still
have failed to meet its burden and the jury would have had to find her not guilty. Therefore, the
district court was incorrect that an objection would have been unfounded. Further, it is unlikely



                                                  11
that the failure to object was tactical or strategic, as it appears unlikely that having the prosecutor
imply that your client holds the burden of proof would ever be a reasonable tactical decision.
Therefore, there is a genuine issue of material fact as to whether Stanfield’s lawyers’
performance was deficient.
         Further, there is a genuine issue of material fact regarding whether the outcome would
have been different. The State implied that the only means to acquit Stanfield was to accept her
versions of the facts, which may have influenced the jury’s determination. However, a jury can
simply acquit because it does not find that the State has carried its burden of proof, regardless of
the version of the events told by the criminal defendant. Accordingly, Stanfield should be
entitled to present evidence at a hearing to establish whether the likelihood of a different
outcome is substantial.
C.       The district court did not err in dismissing Stanfield’s claim regarding lesser-
         included offense jury instructions because of the acquittal first rule.
         During the jury instruction conference at Stanfield’s trial, the State requested
confirmation that defense counsel did not intend to request any lesser-included instructions. One
of Stanfield’s lawyers confirmed and stated, “I don’t think there’s a factual scenario to have
[any] fit.” Accordingly, the jury was only instructed regarding first-degree murder and no other
lesser-included offenses.
         Stanfield alleges that her trial lawyers were ineffective by not requesting jury instructions
regarding the lesser-included offenses such as battery, aggravated battery, involuntary
manslaughter, and voluntary manslaughter. The district court dismissed Stanfield’s claim
because it failed to satisfy either the first or second prong of the Strickland analysis. We hold that
Stanfield cannot prove prejudice because of the acquittal first rule. Therefore, we do not address
whether there is a genuine issue of material fact regarding whether counsels’ performance was
deficient. 4




4
  This Court has concerns about the allegation that Stanfield’s lawyers failed to discuss the strategy of not requesting
lesser-included offense instructions with her. While it is true that determining whether to request instructions on
lesser-included instructions is strategic, it is the type of strategy that should always be discussed with one’s client.
The United States Supreme Court has stated that defense counsel has a duty to discuss potential strategies regarding
“important decisions” with the defendant. Florida v. Nixon, 543 U.S. 175, 187 (2004). It is impossible to conclude
that lesser-included offense jury instructions are inconsequential and that trial counsel does not need discuss this
strategic decision with the defendant. Failure to do so could constitute deficient performance.


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        This Court has adopted the “acquittal first” rule based on Idaho Code section 19-2132.
State v. Joy, 155 Idaho 1, 7, 304 P.3d 276, 282 (2013) (citation omitted). The relevant portion of
that statute states,
        [i]f a lesser included offense is submitted to the jury for consideration, the court
        shall instruct the jury that it may not consider the lesser included offense unless it
        has first considered each of the greater offenses within which it is included, and
        has concluded in its deliberations that the defendant is not guilty of each of such
        greater offenses.

I.C. § 19-2132(c) (italics added). Thus, under the acquittal first rule, any time a jury is instructed
on a lesser-included offense, it must also be instructed to decide the greater charge first. Joy, 155
Idaho at 7, 304 P.3d at 282. Only once the jury determines that the defendant is not guilty of the
greater charge, i.e., acquitted, may it then turn to a lesser-included offense. Id. Consequently,
“this leads to the conclusion that the jury would never consider the included offense instruction
because ‘there is no reason to believe under these circumstances, that the jury would have come
to any different conclusion concerning the greater charge.’” Id. (quoting State v. Curtis, 130
Idaho 525, 528, 944 P.2d 122, 125 (Ct. App. 1996), aff’d on other grounds, 130 Idaho 522, 944
P.2d 119 (1997)).
        In Stanfield’s case, a jury found her guilty of first-degree murder, the greater offense.
Having done so, the jury would have had no occasion to consider any of the lesser-included
offenses, even if the jury had been given instructions on those offenses. Therefore, Stanfield
cannot demonstrate that she was prejudiced by her trial lawyers’ decision not to request jury
instructions on lesser-included offenses.
        Tellingly, Stanfield concedes that under Idaho law, the district court’s analysis regarding
prejudice was correct. However, Stanfield argues that Idaho law violates due process under the
Fourteenth Amendment because it deprives a defendant of the right to have a jury consider the
full range of culpability. Stanfield cites Beck v. Alabama, 447 U.S. 625, 638 (1980) to support
her proposition. In that case, the United States Supreme Court held that a state statute that
prohibited judges from giving lesser-included offense instructions when the defendant was
charged with a capital crime violated due process. Id. Stanfield cites to this lone case and
provides almost no further legal analysis.
        This Court addressed the due process concerns of the acquittal first rule in State v.
Raudebaugh, 124 Idaho 758, 864 P.2d 596 (1993). In that case, this Court held that an acquittal



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first requirement did not violate the United States Constitution. Raudebaugh, 124 Idaho at 762–
63, 864 P.2d at 600–01 (citing Beck, 447 U.S. at 637). Similarly, other jurisdictions have held
that an acquittal first instruction does not violate due process. See Oregon v. Horsley, 8 P.3d
1021 (2000); Washington v. Labanowski, 816 P.2d 26, 36 (1991); United States v. Moccia, 681
F.2d 61, 64 (1st Cir. 1982) (the well-established rule of requiring unanimity on the greater
offense does not violate due process); Pharr v. Israel, 629 F.2d 1278, 1282 (7th Cir. 1980)
(“acquittal first” instruction does not violate either due process or the right to trial by jury);
Arizona v. Lee, 944 P.2d 1204, 1216 (1997) (“acquittal first” requirement does not violate the
United States or Arizona Constitutions).
       Accordingly, the district court did not err in summarily dismissing Stanfield’s claim
regarding the lesser-included jury instructions. Thus, we affirm that portion of the district court’s
decision.

                                         IV. CONCLUSION
       For the reasons set forth in this opinion, this Court vacates in part and affirms in part the
district court’s judgment summarily dismissing Stanfield’s petition for post-conviction relief.
The case is remanded to the district court to conduct an evidentiary hearing on Stanfield’s
remaining claims of ineffective assistance of counsel.
       Chief Justice BURDICK, Justices BRODY, BEVAN and MOELLER CONCUR.




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