LEXAPRO & ALCOHOL & MEDICAL MARIJUANA: Murder: Woman Stabs Man To Death: CA

Paragraph eleven reads:  “During the interview, Rothwell
at times explained she was really drunk during the incident. However, she also
denied feeling “buzzed,” explaining she could “see straight” and was not falling
down drunk. She also admitted she drinks “a little bit” and takes medical
marijuana everyday. Rothwell said she takes Lexapro for anxiety and
depression and that she had taken her medication the night of the
incident.
Rothwell told police she has anger problems and when her
father died two years ago it “kinda pushed” her over the edge. She admitted to

stabbing a friend Alex Montes in the arm approximately a year and one-half
before when they were drunk and playing around. Rothwell explained she was not
mad at Montes, but he had said  ‘you won’t [stab me],’  so she did.
Rothwell agreed there were similarities about the two incidents with Rivas and
Montes because each man had dared her to stab him.”

SSRI Stories
Note:  The Physicians Desk Reference states that
antidepressants can cause a craving for alcohol and can cause

alcohol abuse. Also, the liver cannot metabolize the antidepressant and
the alcohol simultaneously, thus leading to higher levels of both alcohol and
the antidepressant
in the human body.

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PEOPLE v. ROTHWELL

THE PEOPLE, Plaintiff and
Respondent,
v.
SAMANTHA ELIZABETH ROTHWELL, Defendant and
Appellant.

No. G040557.

Court of Appeals of California, Fourth
District, Division Three.

Filed April 22, 2010.

Christine Vento,
under appointment by the Court of Appeal, for Defendant and
Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General,
Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for
Plaintiff and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

OPINION

O’LEARY, Acting P.
J.

Samantha Elizabeth Rothwell appeals from a judgment after a jury
convicted her of second degree murder and found true she personally used a
deadly or dangerous weapon, a knife, in the commission of the crime. Rothwell
argues her federal constitutional rights were violated when the trial court
refused to instruct the jury to consider evidence of her intoxication in
determining whether she acted with conscious disregard for human life. We
disagree and affirm the judgment.

FACTS[ 1 ]

One afternoon, a group of 10 to 15
friends rented a room at the Hotel Huntington Beach to celebrate Nicole Alcala’s
birthday. Rothwell, one of the invitees, and her friend, Kristina Torres,
arrived around 8:30 p.m. Marc Bellatiere and his girlfriend, Jennifer Mulcahy,
were at the party when Rothwell and Torres arrived. Mulcahy also invited her
brother Ryan Soto. Eighteen-year-old Walter Rivas was also at the
party.

Sometime in the evening, the group went to the beach to meet with
friends. Rothwell chose to stay at the hotel. When the group returned sometime
after midnight, Soto recalled that Rothwell “didn’t seem like herself.” While
some people started getting ready for bed, Bellatiere went outside to the fifth
floor stairwell landing to smoke a cigarette. Mulcahy, Torres, Rothwell, and
Rivas joined him. For the first five to 10 minutes, the mood was fine. However,
the atmosphere changed when Rivas began talking about seeing God the last time
he was in Huntington Beach. Rothwell became upset and ordered Rivas to not “talk
about God. I don’t like hearing about that stuff.” Rivas was taken aback by
Rothwell’s response and asked her why. She replied, “It’s because I’m the
devil,” and demanded Rivas “stop talking about it.” Rivas responded, “I’ll talk
about whatever I want.” Rothwell threatened, “If you don’t stop talking, shut
up, I’ll stab you.” No one in the group took Rothwell’s threat seriously. Rivas
said jokingly, “If you are going to do it, do it,” and continued to talk about
God. Rivas was not threatening, did not make any aggressive moves toward
Rothwell, and made no physical contact with her.

Rothwell walked to the
hotel room and flung the door open. Mulcahy followed and tried to calm her down.
Rivas stayed on the landing talking with Torres. When Rothwell and Mulcahy
entered the hotel room, it was dark and everyone was sleeping. Rothwell went to

the side of the bed where her belongings were located and began digging through
her purse while saying, “@#$% this guy . . . he can’t be talking to me like
this.” Mulcahy tried to grab Rothwell and calm her down, but Rothwell pulled
away and left the room.

Rothwell returned to the stairwell and headed
straight for Rivas. Rothwell swung her closed fist toward Rivas’s neck. Rivas
was substantially taller than Rothwell and struggled against her, but she
stabbed him in the jugular vein and in the back. When Rothwell took her arm
away, Rivas was bleeding profusely and said, “That @#$% fucking stabbed me.
That @#$% fucking stabbed me.” Bellatiere and Torres walked Rivas back to the
hotel room where they had him lay on the bathroom floor.

Rothwell
returned to the room and quickly gathered her things to leave. Soto asked, “Why
did you do it? What happened?” and Rothwell responded, “It wasn’t a big fucking
deal, get over it,” or “Get the @#$% over it. @#$% you,” and left the room
passing a bloody Rivas. Rothwell left bloody fingerprints on the stairwell
railing as she left. Someone called 911.

Bellatiere, Mulcahy, and Soto
left the hotel scared and panicked while Alcala and Torres tended to Rivas. The
group drove down the street and parked. Bellatiere left because he was the only
one in the group who was over 21 years old and had brought alcohol for the
party, which included underage party guests. Bellatiere, Mulcahy, and Soto
called Mulchay’s mother and asked what they should do. As a result of that
conversation, about one hour later, Bellatiere, Mulcahy, and Soto returned to

the hotel. Bellatiere and Mulcahy spoke to police who were at the
hotel.

Rivas died at the hospital. An autopsy determined he bled to death
as a result of an L-shaped stab wound in the left jugular vein of the neck.
Rivas had a blood alcohol level of .09% before his death. He would have needed
four and one-half to five drinks to reach that level.

Police officers
arrested Rothwell the next day at her apartment in Valencia. Officer Michael
Reilly executed a search warrant and found her purse and backpack. In a small
pocket of her backpack, he found a folding knife with dried blood on it. Dried
blood was also found on her backpack, tennis shoes, and pants. Inside Rothwell’s
purse, Reilly found a McDonald’s receipt from earlier that morning at 2:39 a.m.
for a double cheeseburger and chicken nuggets.

Later that day, officers
interviewed Rothwell at the Huntington Beach Police Department. After waiving
her Miranda[ 2 ] rights, Rothwell told police she consumed
three beers and two or three shots of alcohol and vomited while the others were
at the beach. Rothwell explained that while having a cigarette on the fire
escape, she had a conversation with Mulcahy about how she used to cut herself,
which sparked an argument with Rivas. She recalled Rivas said he “found God in
Huntington Beach,” but said it did not make her upset and she was joking when
she said the devil visited her. She explained Rivas had been drinking and yelled
at her to stab him. In response, she walked back to the hotel room and got her
knife. She denied saying she was going to stab Rivas. When she went back to the
stairwell, Rothwell alleged Rivas was taunting her to “stab me like that.”
Rothwell explained the two were wrestling and she was trying to get away when
she swung three times at his stomach and back and inadvertently stabbed him in
the neck. Rothwell explained Torres was screaming at her to stop, but she was
“drunk” and “pissed off” because Rivas had yelled at her and was grabbing her by
the arms. She told police that after she stabbed Rivas, he said, “You got me,”
and “[She] killed him.” Rothwell admitted seeing Rivas laying on the floor
bleeding profusely but gathered her belongings and left the hotel room because
she was terrified and realized he might die. Rothwell recalled saying, “tell
everybody to go to hell” to Mulcahy’s friend Marshall who had followed her down
the stairs. Rothwell explained that when she left the hotel she drove to

McDonald’s and purchased a double cheeseburger and chicken nuggets. Rothwell
explained she then went home and waited for the police to come and arrest
her.

During the interview, Rothwell at times explained she was really
drunk during the incident. However, she also denied feeling “buzzed,” explaining
she could “see straight” and was not falling down drunk. She also admitted she
drinks “a little bit” and takes medical marijuana everyday. Rothwell said she
takes Lexapro for anxiety and depression and that she had taken her medication
the night of the incident. Rothwell told police she has anger problems and when
her father died two years ago it “kinda pushed” her over the edge. She admitted
to stabbing a friend Alex Montes in the arm approximately a year and one-half
before when they were drunk and playing around. Rothwell explained she was not
mad at Montes, but he had said “you won’t [stab me],” so she did. Rothwell
agreed there were similarities about the two incidents with Rivas and Montes
because each man had dared her to stab him.

Rothwell cried while she told
police she did not mean to kill Rivas. When she heard about Rivas’s death she
“felt sick” and felt bad for his family. Rothwell did not know what made her do
it and admitted she is “not right.”

An indictment charged Rothwell with

murder in violation of Penal Code section 187, subdivision (a).[ 3 ]
The indictment alleged she personally used a knife, a dangerous and deadly
weapon, in the commission of the crime, pursuant to section 12022, subdivision
(b)(1).

At trial, the prosecutor offered Montes’s testimony. Montes
testified he was a good friend of Rothwell, had known her for three years, and
would see her everyday. Montes explained a conversation he had with Rothwell in
which she told him that she did not believe in God because her father told her
to say her prayers and when Rothwell woke up in the morning, her father was
dead. He testified Rothwell would get upset and very emotional if the topic of
God was discussed. He recalled she would say, “Don’t ever bring God up in my
house again. I don’t believe it.” Despite her anger about any discussion of God,
he never saw Rothwell pick up a weapon or heard her say she would stab someone
for talking about God. Montes recalled a night when he and Rothwell were
“playing around” and Rothwell said, “if you make me mad enough I’ll stab you.”
Not taking Rothwell seriously, Montes explained he said jokingly, “you won’t
stab me” and stuck his arm out. In response, she pushed the knife into his arm,
drawing blood. She apologized the next day, and Montes still considers her a
close friend.

Mulcahy also testified for the prosecution. Mulcahy was a
friend of Rothwell from high school and stayed in touch weekly. Mulcahy
testified Rothwell appeared to be fine when she entered the party. She explained
it was the first time Rivas and Rothwell had met. She believed Rothwell was not
religious but was also not an atheist. She also knew Rothwell carried a knife
for protection and could get very angry. Mulcahy testified everyone drank
throughout the night.

The prosecutor also offered the testimony of a
forensic scientist, Annette McCall. McCall testified blood samples gathered from
the scene compared with known samples of Rivas’s DNA revealed Rivas could “not
be eliminated as a source.” She also testified blood samples gathered from
Rothwell’s backpack and knife compared with known samples of Rivas’s DNA
revealed Rivas could “not be eliminated as a source.”

Rothwell offered
Torres’s testimony. Torres explained she and Rothwell were best friends. Torres
said they “probably smoked marijuana” before going to the hotel and she saw
Rothwell smoking marijuana throughout the night. Torres described Rivas as
always having a smile on his face. According to Torres, Rivas and Rothwell were
talking about religion on the landing and Rivas said he saw God on the beach.
Rothwell said, “I’m the devil.” Torres explained Rivas was calm and Rothwell was
yelling and then left briefly. Torres recalled that when Rothwell returned, it
appeared as though she was dancing with Rivas. She eventually realized it looked
confrontational and Rivas was trying to push Rothwell away. Torres testified she
never saw a knife. She saw the blood pouring from Rivas’s neck but did not think
he would die. Torres helped Rivas until the paramedics arrived. She remembered
Rivas saying, “Tell my mother I love her.” She stated Rothwell gathered her
belongings and left the hotel room. Torres thought she heard Rothwell say upon
her departure, “It’s no big deal, fucking deal with it.” Torres said Rivas had
not been confrontational or argumentative with Rothwell that night or in the
past. However, Torres explained Rothwell becomes confrontational whenever the
subject of God comes up. Torres also explained that if someone tells Rothwell
not to do something, she will do it. Furthermore, if someone dares Rothwell to

do something, she will. Torres testified she witnessed the stabbing of Montes by
Rothwell, which was the result of a dare. Torres also testified “`[Rothwell]
goes from zero to maniac . . . if you push her button.'”

Torres admitted
lying to the police to protect Rothwell. She tried to protect Rothwell because
she knew what Rothwell did was wrong and it was no accident. Torres explained
she called Christian Robinson, Rothwell’s boyfriend, and told him that Rothwell
had stabbed someone. Two days later, Torres felt she could no longer protect
Rothwell and typed a statement to police that she both faxed and hand delivered.
In the statement, she explained Rothwell had stabbed Rivas. She also reported
Rothwell said to Rivas, “Oh yeah, oh, you don’t think I won’t. You think I
won’t.”

The trial court instructed the jury on first degree murder and
second degree murder­both on the implied malice and no premeditation
theories­and involuntary manslaughter. Rothwell’s counsel requested CALCRIM
No. 3426, the voluntary intoxication instruction. The prosecutor objected based
on Rothwell’s statement she was not buzzed. The trial court expressed a
preference for CALCRIM No. 625, a voluntary intoxication instruction that
pertains directly to homicide. Defense counsel requested CALCRIM No. 625 be
modified to add malice aforethought, which includes implied malice. The
requested instruction (the Special Instruction) provided: “You may consider
evidence, if any, of the defendant’s voluntary intoxication only in a limited
way. You may consider that evidence only in deciding whether the defendant acted
with an intent to kill, or the defendant acted with deliberation and
premeditation, or acted with malice aforethought. [¶] A person is

voluntarily intoxicated if he or she becomes intoxicated by willingly
using any intoxicating drug, drink, or other substance knowing that it could
produce an intoxicating effect, or willingly assuming the risk of that effect.
[¶] You may not consider evidence of voluntary intoxication for any other
purpose.” The court declined to instruct the jury with the Special Instruction.
Instead, the court instructed the jury with CALCRIM No. 625 without the “or
acted with malice aforethought” language.

The jury convicted Rothwell of
second degree murder and found true the allegations she personally used a deadly
or dangerous weapon, a knife. The trial court sentenced her to prison for a
total term of 16 years to life.

DISCUSSION

Due Process and Fair Trial

Rothwell contends her federal constitutional rights to due process and a
fair trial were violated when the trial court, relying on section 22, refused to
instruct the jury it may consider her voluntary intoxication to negate implied
malice. Specifically, she argues section 22, subdivision (b), is
unconstitutional because it was designed to keep out relevant, exculpatory
evidence and is not a redefinition of the mental state element of the offense.
We disagree.

Section 22, most recently amended in 1995, provides: “(a) No
act committed by a person while in a state of voluntary intoxication is less
criminal by reason of his or her having been in that condition. Evidence of
voluntary intoxication shall not be admitted to negate the capacity to form any
mental states for the crimes charged, including, but not limited to, purpose,
intent, knowledge, premeditation, deliberation, or malice aforethought, with
which the accused committed the act. [¶] (b) Evidence of voluntary intoxication
is admissible solely on the issue of whether or not the defendant actually
formed a required specific intent, or, when charged with murder, whether the
defendant premeditated, deliberated, or harbored express malice
aforethought. [¶] (c) Voluntary intoxication includes the voluntary ingestion,
injection, or taking by any other means of any intoxicating liquor, drug, or
other substance.” (Italics added.)

The Legislature’s 1995 amendment to

section 22 inserted the word “express” before the word “malice” in subdivision
(b). The 1995 amendment was in direct response to People v. Whitfield
(1994) 7 Cal.4th 437 (Whitfield). In Whitfield, the California
Supreme Court held evidence of a defendant’s voluntary intoxication was
admissible to negate implied as well as express malice. (Id. at
451.)

The history of the 1995 amendment to section 22 was most recently
addressed in People v. Turk (2008) 164 Cal.App.4th 1361 (Turk). In

Turk, the court concluded, “The legislative history of the amendment
unequivocally indicates that the Legislature intended to legislatively supersede
Whitfield, and make voluntary intoxication inadmissible to negate implied
malice in cases in which a defendant is charged with murder.” (Turk,
supra,
164 Cal.App.4th at pp. 1374-1375.)

Rothwell argues section 22
is unconstitutional after the 1995 amendment because “it created a rule that
keeps out relevant exculpatory evidence by in effect precluding the jury from
considering evidence that could disprove the `conscious disregard for human
life’ element of implied malice second degree murder.” Rothwell relies on

Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff), and Justice
Ginsburg’s concurring opinion, to support her contention.

In
Egelhoff, a plurality of the court upheld the constitutionality of a
Montana statute providing voluntary intoxication “`may not be taken into
consideration in determining the existence of a mental state which is an element
of [the] offense.'” (Egelhoff, supra, 518 U.S. at p. 57.) The plurality
found no due process violation because the right to have a jury consider
intoxication evidence was not a “fundamental principle of justice.” In
concurrence, Justice Ginsberg drew a distinction between rules designed to keep
out relevant, exculpatory evidence that might negate an essential element of a
crime and violate due process, and rules that redefine the mental state element
of the offense. (Ibid.) Justice Ginsburg viewed the Montana statute as a
redefinition of the offense’s required mental state and therefore excluding
evidence of voluntary intoxication was constitutional. (Id. at pp.
57-59.)

“When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, `the holding of the
Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds . . . .'” (Marks v. United States

(1977) 430 U.S. 188, 193.) Assuming Justice Ginsburg’s concurrence controls, as
Rothwell urges this court to do, we nonetheless conclude section 22 does not
violate due process.

In People v. Timms (2007) 151 Cal.App.4th
1292, 1300-1301 (Timms ), the court addressed the identical issue we have
here. The court explained section 22 did not violate a defendant’s due process
rights because section 22, subdivision (b), did not belong to the “prohibited
category of evidentiary rules designed to exclude relevant exculpatory
evidence.” (Timms, supra, 151 Cal.App.4th at p. 1300.) The court
reasoned, “The absence of implied malice from the exceptions listed in
subdivision (b) is itself a policy statement that murder under an implied malice
theory comes within the general rule of subdivision (a) such that voluntary
intoxication can serve no defensive purpose. In other words, section 22,
subdivision (b)[,] is not `merely an evidentiary prescription’; rather, it
`embodies a legislative judgment regarding the circumstances under which
individuals may be held criminally responsible for their actions.’ [Citation.]
In short, voluntary intoxication is irrelevant to proof of the mental state of
implied malice or conscious disregard. Therefore, it does not lessen the
prosecution’s burden of proof or prevent a defendant from presenting all
relevant defensive evidence.” (Id. at pp. 1300-1301)

The

Timms court found illuminating the fact section 22 does not appear in the
Evidence Code, it appears in the Penal Code. (Timms, supra, 151
Cal.App.4th at p. 1300.) Additionally, the court acknowledged the California
Supreme Court’s holding in People v. Atkins (2001) 25 Cal.4th 76, which
rejected a due process challenge to section 22 in the context of the general
intent crime of arson. (Timms, supra, 151 Cal.App.4th at p.
1300.)

With respect to Justice Ginsburg’s concurrence, the court stated
that assuming the concurrence controls, “Justice Ginsberg also stated: `Defining

mens rea to eliminate the exculpatory value of voluntary intoxication
does not offend a “fundamental principle of justice,” given the lengthy
common-law tradition, and the adherence of a significant minority of the States
to that position today. [Citations.]’ [Citation.] Under this rational, the 1995
amendment permissibly could preclude consideration of voluntary intoxication to
negate implied malice and the notion of conscious disregard. Like the Montana
statute, the California Legislature could also exclude evidence of voluntary
intoxication in determination of the requisite mental state.” (Timms,
supra,
151 Cal.App.4th p. 1300.) Therefore, the court concluded section 22
did not infringe defendant’s constitutional rights.

Rothwell also argues
the trial court’s application of section 22 violated her constitutional right to

due process and a fair trial because, “[t]he level of a defendant’s intoxication
is undeniably relevant evidence on the issue of whether he or she consciously
disregarded a risk to human life.” We find People v. Martin (2000) 78
Cal.App.4th 1107 (Martin), instructive.

In Martin, supra,
78 Cal.App.4th at page 1113, the court rejected this constitutional challenge to
section 22. The court explained, “Section 22 states the basic principle of law
recognized in California that a criminal act is not rendered less criminal
because it is committed by a person in a state of voluntary intoxication.” The
court stated section 22 “is closely analogous to [the Legislature’s] abrogation
of the defense of diminished capacity . . . . The 1995 amendment to section 22
results from a legislative determination that, for reasons of public policy,
evidence of voluntary intoxication to negate culpability shall be strictly
limited. We find nothing in the enactment that deprives a defendant of the
ability to present a defense or relieves the People of their burden to prove
every element of the crime charged beyond a reasonable doubt.” (Martin,
supra,
78 Cal.App.4th at p. 1117.)

We find the courts’ reasoning in

Timms, supra, 151 Cal.App.4th 1292, and Martin, supra, 78
Cal.App.4th 1107, persuasive. Thus, we conclude the trial court’s refusal to
instruct the jury with Rothwell’s Special Instruction did not violate her
constitutional rights. The trial court properly instructed the jury with CALCRIM
No. 625.

Equal Protection

In its respondent’s brief,
the Attorney General suggests Rothwell may be asserting an equal protection
claim. In her reply brief, Rothwell raises the equal protection argument for the
first time. We need not consider this argument, because it was made for the
first time in reply without any showing of good cause for failing to raise it in
the opening brief. (Shade Foods, Inc. v. Innovative Products Sales &

Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10.) Additionally,
to the extent Rothwell attempts to raise an equal protection claim, her failure
to properly raise the issue and support it with adequate argument and citation
to authority waived the issues on appeal. (See, e.g., California Dept. of
Corrections v. State Personnel Bd.
(2004) 121 Cal.App.4th 1601, 1619.) In
any event, her claim fails on the merits. (Timms, supra, 151 Cal.App.4th
at pp. 1302-1303.)

DISPOSITION

The judgment is
affirmed.

WE CONCUR.

MOORE, J.

IKOLA, J.
1. `In accord
with the usual rules of appellate review, we state the facts in the light most
favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199,
1206.)
2. Miranda v. Arizona (1966) 384 U.S. 436.
3. All further
statutory references are to the Penal Code

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ZOLOFT Withdrawal: Murder: Idaho

Paragraph one reads: “On May 28, 2002, Briggs pleaded guilty to one count
of murder in the first degree, Idaho Code § 18-4003(a), and two counts of
aggravated battery, I.C. §§ 18-903, 18-907(b). After being sentenced to a
unified term of life imprisonment with twenty-five years determinate for the
murder conviction and several lesser concurrent sentences for the battery
convictions, he appealed the sentences as excessive. On May 15, 2003, this
Court affirmed the sentences in an unpublished opinion. State v. Briggs,
Docket No. 28867 (Ct. App. May 15, 2003). A remittitur issued on June 6,
2003.”

Paragraph three reads: “Briggs appealed the summary dismissal of his
petition in regard to two grounds­that counsel was ineffective for failing
to investigate and subpoena seven possible witnesses for the sentencing
hearing and that counsel was ineffective for failing to investigate and
present evidence on the effects of Briggs’s alleged withdrawal from Zoloft (a
prescription medication) at the time of the underlying crime. In an
unpublished opinion, this Court affirmed the district court’s summary dismissal,
Briggs v. State, Docket No. 32502 (Ct. App. Feb. 28, 2007), holding that Briggs
had failed to present evidence of what the testimony of the seven
individuals would have been or how that testimony would have mitigated his
sentence, and failed to present evidence of what facts would have been uncovered as
a result of further investigation into Briggs’s withdrawal from Zoloft or
how those facts would affect a sentencing hearing. A remittitur issued on
March 22, 2007.”

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BRIGGS v. STATE

TODD ROBERT BRIGGS, Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent.

Docket No. 35530.

Court of Appeals of Idaho.

Filed April 14, 2010.

Todd R. Briggs, Boise, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
GUTIERREZ, Judge.

Todd Robert Briggs appeals from the district court’s summary dismissal of
his successive petition for post-conviction relief. We affirm.

I.

FACTS AND PROCEDURE
On May 28, 2002, Briggs pleaded guilty to one count of murder in the first
degree, Idaho Code § 18-4003(a), and two counts of aggravated battery,
I.C. §§ 18-903, 18-907(b). After being sentenced to a unified term of life
imprisonment with twenty-five years determinate for the murder conviction and
several lesser concurrent sentences for the battery convictions, he appealed
the sentences as excessive. On May 15, 2003, this Court affirmed the
sentences in an unpublished opinion. State v. Briggs, Docket No. 28867 (Ct. App.
May 15, 2003). A remittitur issued on June 6, 2003.

Briggs filed a pro se petition for post-conviction relief on April 30,
2004, asserting several constitutional violations as well as multiple claims
of ineffective assistance of counsel. The sole evidence submitted in support
was an affidavit executed by Briggs on April 13, 2004. Counsel was
subsequently appointed and on August 16, 2005, Briggs­through
counsel­filed an amended petition for post-conviction relief asserting six instances of
ineffective assistance of trial counsel. Again, the only evidence filed in
support of the petition was an affidavit executed by Briggs on August 16,
2005. The state filed a motion for summary dismissal and after the parties
agreed to forego argument on the motion, the district court issued a
memorandum decision and order granting the motion on October 25, 2005, finding
that Briggs had failed to state specifically how his counsel’s performance
was deficient or how the alleged deficient performance was prejudicial to him.

Briggs appealed the summary dismissal of his petition in regard to two
grounds­that counsel was ineffective for failing to investigate and
subpoena seven possible witnesses for the sentencing hearing and that counsel was
ineffective for failing to investigate and present evidence on the effects
of Briggs’s alleged withdrawal from Zoloft (a prescription medication) at
the time of the underlying crime. In an unpublished opinion, this Court
affirmed the district court’s summary dismissal, Briggs v. State, Docket No.
32502 (Ct. App. Feb. 28, 2007), holding that Briggs had failed to present
evidence of what the testimony of the seven individuals would have been or how
that testimony would have mitigated his sentence, and failed to present
evidence of what facts would have been uncovered as a result of further
investigation into Briggs’s withdrawal from Zoloft or how those facts would
affect a sentencing hearing. A remittitur issued on March 22, 2007.

Briggs filed a second pro se petition for post-conviction relief on
December 10, 2007, asserting that his post-conviction counsel was ineffective for
failing to prove that his trial counsel’s ineffective assistance had
prejudiced him, for failing to assert certain due process violations, for
failing to assert that he had been denied his right to confront witnesses, and
for failing to present oral argument on the state’s motion for summary
dismissal. In support, he filed an affidavit executed by him. The state filed a
motion for summary dismissal, contending, among other things, that such a su
ccessive petition is not allowed and that Briggs failed to provide any
evidentiary basis to support his claims. After a hearing, the district court
granted the motion. Briggs now appeals.

II.

ANALYSIS
Briggs contends that the district court erred in summarily dismissing his
successive petition for post-conviction relief. All grounds for relief
available to an applicant under the Uniform Post-Conviction Procedure Act must
be raised in an applicant’s original, supplemental, or amended application.
I.C. § 19-4908. The language of Section 19-4908 prohibits successive
applications in those cases where the applicant “knowingly, voluntarily and
intelligently” waived the grounds for relief sought in the successive
application or offers no “sufficient reason” for omitting those grounds in the
original application. Baker v. State, 142 Idaho 411, 420, 128 P.3d 948, 957 (Ct.
App. 2005) (citing Palmer v. Dermitt, 102 Idaho 591, 593, 635 P.2d 955,
957 (1981)). However, Section 19-4908 allows an applicant to raise a ground
for relief, which was addressed in a former application, if he or she can
demonstrate sufficient reason why that ground was inadequately raised or
presented in the initial post-conviction action. Baker, 142 Idaho at 420, 128
P.3d at 957; Hernandez v. State, 133 Idaho 794, 798, 992 P.2d 789, 793 (Ct.
App. 1999). A showing that a claim was not adequately presented in the
first post-conviction action due to the ineffective assistance of prior
post-conviction counsel provides sufficient reason for permitting issues that were
inadequately presented to be presented in a subsequent application for
post-conviction relief. Id. A petitioner has the burden of providing the
district court with factual reasons upon which the court could conclude there
was a “sufficient reason” why the grounds for relief asserted in his second
petition were “not asserted or were inadequately raised in the original,
supplemental or amended application.” Hooper v. State, 127 Idaho 945, 948, 908
P.2d 1252, 1255 (Ct. App. 1995) (citing I.C. § 19-4908).

On appeal, Briggs contends that post-conviction counsel inadequately
presented his contentions of ineffective assistance of his trial counsel in his
first post-conviction petition. Specifically, he contends that his
post-conviction counsel failed to comply with the second Strickland prong[ 1 ] to
show prejudice stemming from trial counsel’s alleged ineffectiveness where
trial counsel was operating under an alleged conflict of interest and was
not death-penalty certified, where trial counsel did not utilize
court-allocated funds to investigate possible defenses including the possibility that
Briggs’s withdrawal from Zoloft may have been the source of his violent
behavior, and where trial counsel did not “confront” several sentencing hearing
witnesses.

In Wolfe v. State, 113 Idaho 337, 743 P.2d 990 (Ct. App. 1987), this Court
noted that in examining a successive petition, while I.C. § 19-4908
permits an inquiry into why the applicant’s attorney on the first application did
not fully present his client’s grounds for relief, the ultimate focus of
the proceeding would remain on whether the second application has raised not
merely a question of counsel’s performance but substantive grounds for
relief from the conviction and sentence. Id. at 339, 743 P.2d at 992 (emphasis
added). Thus, adopting the approach followed in Wolfe, we examine the
claims raised by Briggs to determine whether he has set forth any “ground for
relief . . . which for sufficient reason was not asserted or was
inadequately raised in the original . . . application.” I.C. § 19-4908. See also
Nguyen v. State, 126 Idaho 494, 887 P.2d 39 (Ct. App. 1994).

An application for post-conviction relief initiates a proceeding that is
civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550
(1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v.
State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a
plaintiff in a civil action, the applicant must prove by a preponderance of
evidence the allegations upon which the request for post-conviction relief is
based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654,
656 (Ct. App. 1990). An application for post-conviction relief differs from
a complaint in an ordinary civil action. An application must contain much
more than “a short and plain statement of the claim” that would suffice for
a complaint under I.R.C.P. 8(a)(1). Rather, an application for
post-conviction relief must be verified with respect to facts within the personal
knowledge of the applicant, and affidavits, records or other evidence supporting
its allegations must be attached, or the application must state why such
supporting evidence is not included with the application. I.C. § 19-4903. In
other words, the application must present or be accompanied by admissible
evidence supporting its allegations, or the application will be subject to
dismissal.

Idaho Code Section 19-4906 authorizes summary disposition of an
application for post-conviction relief, either pursuant to motion of a party or upon
the court’s own initiative. Summary dismissal of an application pursuant to
I.C. § 19-4906 is the procedural equivalent of summary judgment under
I.R.C.P. 56. Summary dismissal is permissible only when the applicant’s
evidence has raised no genuine issue of material fact which, if resolved in the
applicant’s favor, would entitle the applicant to the requested relief. If
such a factual issue is presented, an evidentiary hearing must be conducted.
Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct. App. 1991);
Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct. App. 1988);
Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct. App. 1987).
Summary dismissal of an application for post-conviction relief may be
appropriate, however, even where the state does not controvert the applicant’s
evidence because the court is not required to accept either the applicant’s mere
conclusory allegations, unsupported by admissible evidence, or the
applicant’s conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898,
901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372
(Ct. App. 1986).

On review of a dismissal of a post-conviction relief application without
an evidentiary hearing, we determine whether a genuine issue of fact exists
based on the pleadings, depositions, and admissions together with any
affidavits on file. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.
App. 1993). In post-conviction actions, the district court, as the trier of
fact, is not constrained to draw inferences in favor of the party opposing
the motion for summary disposition; rather the district court is free to
arrive at the most probable inferences to be drawn from uncontroverted
evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008).
It is also the rule that a conclusory allegation, unsubstantiated by any
fact, is insufficient to entitle a petitioner to an evidentiary hearing. Smith
v. State, 94 Idaho 469, 473, 491 P.2d 733, 737 (1971) (overruled on other
grounds); Nguyen, 126 Idaho at 497, 887 P.2d at 42; King v. State, 114
Idaho 442, 446, 757 P.2d 705, 709 (Ct. App. 1988); Drapeau v. State, 103 Idaho
612, 615, 651 P.2d 546, 549 (Ct. App. 1982). Idaho Code § 19-4903 states
that “[a]ffidavits, records, or other evidence supporting its allegations sha
ll be attached to the application or the application shall recite why they
are not attached.”

Here, a review of Briggs’s successive petition reveals that he did not
present sufficient evidence of any facts beyond what was asserted by his
initial post-conviction counsel in regard to his allegations of ineffective
assistance of trial counsel. His successive petition and affidavit in support
merely state (in various ways) his contention that post-conviction counsel
failed to show prejudice in regard to his ineffective assistance of trial
counsel claims. He failed to cite to authority for his proposition that he
should be allowed to file a successive petition due to his post-conviction
counsel’s inadequacy. In his response to the state’s motion for summary
dimissal,[ 2 ] Briggs attached several pages of the “Petitioner’s Response and
Opposition to Motion for Summary Dismissal” filed by his initial
post-conviction counsel in response to the state’s motion for summary dismissal of his
initial post-conviction petition. Presumably as his argument to avoid
summary dismissal of his successive petition, Briggs made handwritten notations
on the excerpted pages, emphasizing and attempting to elucidate some
points. Finally, in his response he stated:
For the foregoing reasons [presumably in reference to the excerpted
response], and for the potential, in all likelihood, for discovering more
evidence in his favor by way of testimony from expert witnesses regarding the
effects of the Zoloft withdrawal, more witnesses regarding Mr. Briggs’ bizarre
behavior the week of 10/21-10/28 2001 [sic] (including Dori Lott, TSI
employees, Camilla Vanderlinden, Bowlero employees, Garcias [sic] personnel,
Jackson’s employees and video, Deralee Beck, Jared, Mays, Ameritel Inn clerk,
Texas Rhodehouse [sic] bartender, the dentist, and others), the list of
evidence found in petitioner’s car, new evidence showing a history of
depression dating back to at least 1999 with accompanying medical records, hearsay
of Deana Higgins/B. Park, new PSI evidence re: Toni Castaneda, and overall
what the investigation would have revealed in mitigating evidence to impact
the sentencing, if not to have made a trial initially possible­that
this matter proceed to evidentiary hearing [sic].

Assessing the entirety of Briggs’s successive application and supporting
affidavit, and taking into account his response to the state’s motion to
dismiss, he has failed to allege facts, which, if true would entitle him to
relief.[ 3 ] Initially, we note that his successive petition and accompanying
affidavit merely included statements of the issues without including any
facts allowing the district court to conclude (1) that there was sufficient
reason why his claims had been inadequately pursued initially, and (2) that
there was a basis for post-conviction relief. And, as we noted above, bare
or conclusory allegations, unsubstantiated by any fact, are inadequate to
entitle an applicant to an evidentiary hearing. Nguyen, 126 Idaho at 497,
887 P.2d at 42; King, 114 Idaho 442, 757 P.2d 705. See also I.C. § 19-4903
(noting that an application for post-conviction relief must be verified with
respect to facts within the personal knowledge of the applicant, and
affidavits, records or other evidence supporting its allegations must be
attached, or the application must state why such supporting evidence is not
included with the application).

In addition, Briggs’s response to the state’s summary dismissal motion
failed to assert the necessary bases for the district court to find in
Briggs’s favor on the two issues above. In fact, reasserting what was advanced by
his initial post-conviction counsel belies his claim that there was
sufficient reason­namely his post-conviction counsel’s inadequate
performance­that he did not raise the claims he now asserts in a successive
petition. In addition, simply asserting the possibility of mitigating evidence
being discovered, and listing potential witnesses, is not sufficient to
entitle him to an evidentiary hearing­such assertions are bare and conclusory
and included no affidavits or other evidence showing the actual existence
of mitigating evidence that could have been discovered and presented by
Briggs’s defense counsel. In short, Briggs has presented nothing but
speculation. See Drapeau, 103 Idaho at 617, 651 P.2d at 551 (noting that allegations
asserted in a petition for post-conviction relief, without supporting
affidavits based upon otherwise verifiable information, cannot be a basis for
post-conviction relief). See also Hooper, 127 Idaho 945, 908 P.2d 1252
(holding that in his successive post-conviction petition, petitioner failed to
assert any basis on which the district court could conclude that there was
sufficient reason why the grounds for relief asserted in his second petition
had not been raised­ or were inadequately raised­in his initial
petition); Nguyen, 126 Idaho at 497, 887 P.2d at 42 (affirming summary
dismissal of a successive application where it contained only allegations,
without supporting affidavits based on otherwise verifiable information, and thus
contained no evidence regarding the merits of his underlying claims or
that his counsel was ineffective for failing to raise the issues in the first
post-conviction proceeding); King, 114 Idaho 442, 757 P.2d 705 (affirming
summary dismissal of successive petition where there were no affidavits,
records or other evidence offered in support of the petition other than an
affidavit by King outlining the factual circumstances of the underlying crime
and his dissatisfaction because of the lesser penalties meted out to
co-defendants on the charge, as well as because of King’s failure to provide a
sufficient reason why the grounds alleged in the successive application were
not raised in the first application). Compare Stuart v. State, 127 Idaho
806, 907 P.2d 783 (1995) (holding that successive petition set forth facts,
with accompanying affidavits, alleging newly discovered information not known
to the applicant at the time of the filing of his first petition).[ 4 ]

In sum, because Briggs did not present evidence of facts showing that
there was sufficient reason his claims were inadequately presented in his first
post-conviction petition or that there were substantive grounds for relief
in regard to his claims of ineffective assistance of trial counsel, we
affirm the district court’s summary dismissal of Briggs’s successive petition
for post-conviction relief.

Chief Judge LANSING and Judge MELANSON CONCUR.
1. To prevail on an ineffective assistance of counsel claim, the defendant
must show that the attorney’s performance was deficient and that the
defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S.
668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224
(Ct. App. 1995). Where, as here, the defendant was convicted upon a guilty
plea, to satisfy the prejudice element, the claimant must show that there is
a reasonable probability that, but for counsel’s errors, he or she would
not have pled guilty and would have insisted on going to trial. Plant v.
State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct. App. 2006).
2. This response was filed pro se, because, Briggs claims in the document,
he presumed that he was without counsel due to a potential conflict of
interest resulting in the “voluntary dismissal” of both attorneys appointed to
represent Briggs in regard to his successive petition. Subsequent to the
filing of this response, Briggs apparently moved to dismiss his
court-appointed counsel, a motion the district court denied. While counsel then
proceeded to represent Briggs at the summary dismissal hearing on his successive
petition, there is nothing in the record indicating that counsel filed any
substantive documents on Briggs’s behalf in regard to his successive
petition.
3. In his brief to this Court, Briggs alleges additional facts and
possible prejudice that he contends stemmed from his trial counsel’s ineffective
assistance of counsel. However, on appeal we review whether the successive
petition, as filed with the district court, was sufficient to survive summary
dismissal. Thus, contentions contained only in Briggs’s appellate brief
are irrelevant to our inquiry.
4. We also note, as the district court in this case pointed out, the mere
fact that the district court which adjudicated Briggs’s first petition
found there was no prejudice shown does not conclusively establish that
counsel’s performance was defective such that Briggs should have the opportunity
to file a successive petition. Just as likely, as the first district court
concluded, is that Briggs had not established prejudice not because
post-conviction counsel was ineffective, but because there were, in fact, no facts
establishing prejudice stemming from trial counsel’s alleged defective
representation.

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