Stacey Lewis Grove v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43537

STACEY LEWIS GROVE, ) 2017 Opinion No. 8
)
Petitioner-Appellant, ) Filed: February 2, 2017
)
v. ) Stephen W. Kenyon, Clerk
)
STATE OF IDAHO, )
)
Respondent. )
)

Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
Perce County. Hon. Carl B. Kerrick, District Judge.

Judgment dismissing, in part and denying in part, petition for post-conviction
relief, affirmed.

Nevin, Benjamin, McKay & Bartlett, LLP; Dennis Benjamin and Deborah
Whipple, Boise, for appellant.

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

GRATTON, Chief Judge
Stacey Lewis Grove appeals from the district court’s judgment dismissing, in part and
denying in part, Grove’s petition for post-conviction relief. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This Court made the following summarization of the facts of this case in State v. Grove,
151 Idaho 483, 485, 259 P.3d 629, 631 (Ct. App. 2011):
Stacey Grove was indicted for the first degree felony murder of K.M., his
girlfriend’s twenty-three-month-old son, who was beaten and died as a result of
his injuries on July 11, 2006.
K.M. was the son of Lisa N. (“Lisa”) and Todd M. (“Todd”). Todd and
Lisa had a turbulent relationship and engaged in a custody battle over K.M. In
approximately April 2006, Todd was granted overnight visits with K.M. At some

1
point in 2006, Lisa and Grove became romantically involved and Grove moved
into the house Lisa shared with K.M. and her young daughter in Lewiston.
On July 7, 2006, it was observed that K.M. was not acting normally and
that he appeared lethargic and “puny.” Lisa’s mother took him to the doctor, but
nothing of significance was found. That evening, Lisa brought K.M. home, but
Grove was absent from the house overnight and was never around K.M. The next
morning, Todd’s wife picked up K.M. for an overnight visitation. Lisa and Grove
went on a recreational outing and Lisa’s daughter was with a relative in Oregon.
At approximately 4 p.m. on July 8, Todd and his wife decided it was
necessary to take K.M. to the emergency room, where they expressed concerns
about a sore on K.M.’s nose and several bruises on his jaw and one under his
armpit and requested that Child Protection Services (CPS) be called. A doctor
examined K.M. and called CPS who consulted with the family. K.M. left the
hospital with his father and stepmother at approximately 7:10 p.m.
On July 9, Todd returned K.M. to Lisa who proceeded to bathe K.M. She
testified that K.M. was continuing to act ill and wanted to be held for a prolonged
period, which was unusual. When K.M.’s older sister arrived home, K.M. was
excited to see her and briefly acted more lively. He opened a gift from his sister
and the two played with a balloon. At dinner K.M. exhibited a normal appetite,
but after dinner he acted tired and declined to color in a book his sister had
provided to him. Lisa put him to bed an hour early.
The next morning, Monday, July 10, Lisa awoke at approximately
5:15 a.m. and checked on K.M. She found him awake, laying on his back with
his eyes open, and noticed there was dry vomit in the bed. Lisa put K.M. in the
bathtub and noticed that he was “very, very pale” and, unlike his usual behavior,
did not enjoy his bath. K.M. was placed on Lisa and Grove’s bed where he
watched cartoons and, according to Grove, again attempted to throw up and his
lips turned purple. Because she was the only one who could open the building,
Lisa left K.M. with Grove and took her daughter with her to work, planning to
come home as soon as she could.
After arriving at work, Lisa noticed that Grove had called and she returned
his call at approximately 7:54 a.m. Grove told her that K.M. was worse than
when she had left, he was worried about K.M., and he wanted Lisa to come home.
Lisa spoke to her son and told him she loved him to which he responded “I too.”
Lisa testified that K.M. sounded “droopy” on the phone.
At around 8:20 a.m., a hysterical Grove called Lisa and demanded that she
come home immediately. He told her that K.M. was not breathing right and that
he was getting him ready to take him to the doctor. Lisa arrived home
approximately ten minutes later. When she entered, K.M. was laying on the floor
on a blanket, struggling to breathe. He appeared to be having convulsions and his
eyes were rolling back into his head. Lisa called 911 at 8:54 a.m.
After arriving at the home, paramedics immediately transported K.M. to
the hospital where Dr. Jay Hunter quickly diagnosed him as having a severe head
injury, which he characterized as “shaken baby syndrome“ that occurred in the
last twenty-four hours. After Dr. Hunter determined that K.M. needed more
specialized care than the hospital could provide, he was taken by helicopter to a

2
hospital in Spokane. At approximately 3 p.m., doctors informed Lisa that K.M.
was not going to survive. He was declared brain dead on July 11 at 9:20 a.m., the
date on which his death certificate indicates was his date of death. Cardiac death
occurred on the morning of July 12 when the organ donation procedure was
performed.
The night of July 12, Grove and Lisa stayed at Grove’s father’s house
during which time Grove tearfully told Lisa that something had happened to K.M.
while he had been watching him on July 10. Lisa loudly asked Grove what had
happened, causing Grove’s father and stepmother to enter the room. Grove told
them that he had placed K.M. on the counter, left him there to go get a brush, and
K.M. had fallen off.
Approximately six months later, a grand jury indicted Grove for first
degree felony murder, Idaho Code §§ 18-4001, 18-4002, 18-4003(d) . . . .
At trial, both the state and the defense presented the testimony of several
medical experts. The emergency room doctor, Dr. Hunter, testified that his
opinions regarding K.M.’s condition had changed after reviewing the autopsy
report. He first testified that he did not believe that K.M. had “simple” shaken
baby syndrome and testified that his injuries were consistent with either being
ejected from an automobile or being beaten very severely. Dr. Hunter also
testified that based on the autopsy report, it was his opinion that K.M. would have
been immediately symptomatic after being beaten--including having a severe
headache and confusion--and would have been close to unconsciousness. Thus,
Dr. Hunter opined, K.M. could not have been fatally injured prior to the morning
of July 10.
Dr. Marco Ross was employed as the county’s medical examiner at the
time of K.M.’s death and performed the autopsy of K.M.’s body. Dr. Ross
testified at trial as the state’s forensic pathologist. He stated that, in performing
the autopsy, he noted bruising on the body, several hemorrhages in K.M.’s brain
and eyes and in other parts of his body, and internal bruising. Dr. Ross indicated
that he removed K.M.’s brain, and consistent with his office’s procedure, sent it to
Dr. Ross Reichard, a neuropathologist at the University of New Mexico. He
testified that Dr. Reichard performed an autopsy of the brain and sent a report of
his findings and conclusions to Dr. Ross. Dr. Ross summarized Dr. Reichard’s
report, which indicated that K.M.’s brain showed a bilateral subdural hemorrhage,
bilateral subarachnoid hemorrhage, and several other injuries as well as a
laceration in the corpus callosum “which is a part of the brain that connects the
two separate hemispheres of the brain[.]” Dr. Ross then testified that:
[T]he laceration itself would sever some nerve bundles that travel between
each side of the brain. And actually that injury, in and of itself, per se,
may or may not have a lot of recognizable changes in a person who
survives such as that.
But what’s more significant is the fact that--that a tear did occur is
indicative of a degree of force that was impacted upon the head that an
individual who sustained a laceration of the corpus callosum as a result of
blunt force impact, you know, probably would have been rendered
unconscious or nearly unconscious at the time of the impact.

3
Dr. Ross explained that according to Dr. Reichard’s report, K.M.’s brain
injuries showed a lack of inflammation and therefore would have been inflicted
shortly before death. He also testified that applying the force necessary to
lacerate the corpus callosum would likely have caused K.M. to become
unconscious at the time of impact. He testified that based on his examination, all
of the injuries, with the exception of a few bruises on K.M.’s lower back and jaw,
were caused at approximately the same time--which was less than three to four
days before K.M.’s cardiac death on July 11, and more likely one to two days
before. He indicated that K.M.’s abdominal injuries would have immediately
caused him debilitating pain and that his brain injuries would have rendered him
almost immediately unconscious or nearly so. On this basis, he opined that K.M.
could not have suffered such an injury prior to going to bed the night before based
on the testimony from Lisa and others about K.M.’s physical activity that night
and on Monday morning as those activities would have been impossible had K.M.
already suffered the beating which eventually caused his death. Dr. Ross
specifically noted that K.M. would not have been able to speak on the phone with
his mother.
On cross-examination, Dr. Ross testified that he had not performed any
independent testing on K.M.’s brain. He testified that he would have generally
been able to identify several of the hemorrhages, but not other injuries including a
corpus callosum laceration which can only be identified through microscopic
examination. Dr. Ross indicated that while it would be possible to review
Dr. Reichard’s findings by viewing the “recuts” with a microscope, he had not
done so. He further testified that he did not recall if photographs had been taken
of the tissues viewed by Dr. Reichard or whether he had reviewed any such
photographs.
Based on his observations and the injuries described in Dr. Reichard’s
written report, Dr. Ross testified that it was his expert opinion that K.M.’s death
was caused by homicide, specifically due to blunt impact injuries to his head
which caused a subdural hemorrhage and secondary brain swelling. Again relying
on Dr. Reichard’s report, Dr. Ross concluded that the hemorrhages in K.M.’s
brain were “acute,” meaning that the injury likely occurred “sometime
immediately before death or within a day or two prior to death.” Because it was
determined that K.M. was brain dead at 9:20 a.m. on July 11, Dr. Ross opined that
Grove had been alone with K.M. during the window in which K.M.’s head
injuries likely occurred--from around 7 a.m. to approximately 8:45 a.m. on
July 10.
The state also called Dr. Deborah Harper, a Spokane pediatrician with
special training in child physical and sexual abuse and neglect who had been
called to the hospital to examine K.M. before he died. After first describing her
own observations of K.M.’s injuries when she saw him, examining his records,
and speaking to his mother, Dr. Harper testified that she had relied on the autopsy
reports of Dr. Ross and Dr. Reichard (without specifically telling the jury what
those reports contained) and the surgery notes from the organ harvest procedure to
come to a conclusion about the cause of K.M.’s death and his physical

4
manifestations of injury prior to his death. Regarding K.M.’s injuries, she opined
that
[K.M.] died as a result of two fatal injuries. The one that actually
killed him first was the extremely serious brain injury that caused
enormous brain swelling to the point that his brain pressure--the swelling
was so great that the blood pumping from his heart could not get into the
brain to feed the brain cells.
In addition to that, the pressure on the brain was pushing down
through the big hole at the base here where your spinal cord goes, so he
had a herniation in midbrain, which is really important for breath, and
other things [were] being squished down through that.
In addition, he had really quite awful abdominal injuries. At the
time of his organ harvest, the surgeon noted that he had bruising in his
colon so the big--that’s the large bowel. He had bruising there and
bruising in his small intestine as well.
And even more than that, the--the root--that’s called the mesentery.
But the root that holds your intestines in place, and it’s a very strong
tissue. It’s like--it’s like really strong material, like canvas. And it’s
important because it holds the intestines where they belong so they don’t
get twisted up, and it--the blood vessels and nerves come through it. That
had a rip in it. And that’s just enormous force, and that was--we always
suspect when children have a bad brain injury, they may have abdominal
trauma. I was quite surprised myself at the extent of that major, major
abdominal trauma that [K.M.] suffered.
When asked about her opinion as to when the injuries that caused his
death occurred, she stated:
When these injuries occurred, he immediately looked awful. He
would have been unconscious or semi-conscious, limp, not--probably not
breathing well, perhaps still breathing at that time. But he would have
immediately--on the blows that dealt these injuries, would have been
obviously critically ill.
She also indicated her opinion that his behavior on the morning of July 10,
as testified to by his mother and sister, was not consistent with having already
received the injuries that would eventually kill him. She also opined that falling
off the counter would not have caused the catastrophic injuries K.M. sustained,
nor could such a fall have exacerbated an existing injury and caused it to become
fatal because the type of injury that actually killed K.M. was a single injury that
caused immediate swelling of the brain. Dr. Harper then addressed whether K.M.
could have had a delayed response to the injuries to his brain--for example, a slow
bleeding in his brain that would not have produced physical symptoms for a few
days after the injury. When asked by the defense attorney whether she was aware
that there are studies and reports in various medical journals indicating that there
can be a delayed response to subdural hematomas, Dr. Harper answered:
There can be a delayed response to subdural hematomas. In
[K.M.’s] case, he [had] subdural hematomas, which are interesting that

5
they’re there, but that wasn’t his main brain injury. His main brain injury
was actually to the physical solid part of his brain.
Grove called Dr. Jonathan Arden, a forensic pathologist based in Virginia,
to testify as an expert. Dr. Arden testified that he had reviewed, among other
things, the autopsy report, including the brain examination report prepared by
Dr. Reichard, recuts of the microscopic slides of tissue from K.M.’s body and
brain that had been used by Dr. Reichard and Dr. Ross in conducting the autopsy,
and autopsy photographs. He testified that based on his review of these materials,
he agreed with Dr. Ross that K.M.’s death was the result of homicide and caused
by blunt impact injuries to his head--specifically referencing a subdural
hemorrhage and brain swelling, but disagreed with Drs. Ross and Harper as to the
timing of the injuries, stating that he believed that the significant injuries to
K.M.’s head and abdomen had been inflicted at least three days prior to his
death--on either July 8 or 9. He testified that his opinion on this matter had come
largely from microscopic examination of relevant tissues and his observations as
certain body processes which are used to date injuries.
Dr. Arden also testified that he disagreed with Dr. Reichard’s conclusion
that there was a laceration of the corpus callosum, rather he believed that what
Dr. Reichard had perceived as a laceration was merely something that occurred
during the processing of K.M.’s brain after his death. He testified that the
existence of a laceration would have significant impact on whether a person
would be rendered immediately unconscious or not. He testified that it was his
opinion that K.M. could have engaged in all of the activities testified to--
including, among other things, playing with his sister when she returned from her
trip and sitting in his high chair and eating dinner--having already sustained the
head injuries that would lead to his death.
Dr. Arden also opined that K.M. having thrown up in bed, being pale, and
dry-heaving on the morning of July 10 are all possible symptoms of the type of
head injury and abdominal injuries that Dr. Arden believed that K.M. had
sustained and that it was reasonable that having sustained these injuries, K.M.
would not have immediately shown symptoms and that his symptoms could have
waxed and waned over a period of time. He did admit that if he assumed that the
injuries had occurred on Monday morning (which he did not agree with due to his
dating of the injuries through viewing the microscopic slides), it would have been
consistent with his injuries for K.M. to become immediately unconscious.
Dr. Arden further indicated his opinion that many of K.M.’s abdominal injuries
were older and therefore there was no reason to conclude that K.M. would have
been showing signs of being in excruciating pain from those injuries on July 8 or
9.
The jury found Grove guilty of first degree felony murder.
This Court affirmed Grove’s conviction on direct appeal. Relevant to the present appeal,
we held that trial counsel’s failure to object on confrontation grounds to evidence from Dr. Ross
which relied on Dr. Reichard’s report did not constitute fundamental error. Grove, 151 Idaho at
492-93, 259 P.3d 638-39.

6
Grove filed a petition for post-conviction relief alleging: (1) violation of his
constitutional rights; (2) prosecutorial misconduct at trial; (3) a violation of due process because
jurors were sleeping during the presentation of evidence; (4) ineffective assistance of counsel for
failing to object to the prosecutorial misconduct alleged in the second cause of action; and
(5) ineffective assistance of counsel for failing to take thirty-three different actions at trial that
Grove concluded should have been taken. The parties filed cross-motions for summary
disposition. The district court denied Grove’s motion and granted the State’s motion in part and
denied it in part. The case proceeded to an evidentiary hearing, after which the district court
denied the remaining claims. Grove filed a timely appeal from the final judgment denying his
petition.
II.
ANALYSIS
On appeal, Grove claims: (1) the district court erred in dismissing the Confrontation
Clause claim; (2) the district court erred in dismissing the prosecutorial misconduct claim; (3) the
district court erred in summarily dismissing certain ineffective assistance of trial counsel claims;
(4) the district court erred in denying the claims of ineffective assistance of counsel after an
evidentiary hearing with respect to Grove’s testimony, Dr. Arden’s testimony as an expert
witness for the defense, and deficient closing and rebuttal arguments; and (5) the cumulative
effect of the totality of the deficient performance was prejudicial. We will first address the issue
of raising constitutional violations in an action for post-conviction relief. Second, we will
address those claims summarily dismissed by the district court. Finally, we will address those
claims denied after the evidentiary hearing.
A. Constitutional Claims
In his petition, Grove pled the Confrontation Clause violation claim and claims of
prosecutorial misconduct as direct, stand-alone constitutional claims. The district court
determined that the claims were not properly brought in post-conviction proceedings. We will
address each in turn.
1. Confrontation Clause
In his petition for post-conviction relief, Grove asserted that his right to confront
witnesses was violated in the criminal trial when witnesses called by the State testified about
neuropathology tests and examination results which were relied upon and incorporated into the

7
autopsy report for purposes of determining the cause and manner of K.M.’s death. Grove
contended that the State’s medical witnesses relied on the results of the neuropathology testing
but had neither performed nor had personal knowledge of the neuropathology testing or
examination. Grove asserted that his right to confront witnesses was, thus, violated when the
neuropathologist who did perform the tests, Dr. Reichard, was not a witness at the trial.
The district court ruled that because there was no objection at trial to the autopsy report
or testimony referencing Dr. Reichard’s findings, there could not be a Confrontation Clause
violation. The district court also referenced this Court’s decision on direct appeal in stating that
trial counsel’s decision not to object to testimony referencing Dr. Reichard’s findings may have
been a tactical decision. The district court indicated that this issue would be addressed in the
context of the ineffective assistance of counsel claim. Grove argues that a constitutional claim
alleging a violation of the Confrontation Clause can be raised in a post-conviction proceeding.
Grove points to I.C. § 19-4901 in support of his contention that a contemporaneous
objection is not required to proceed under the Uniform Post-Conviction Procedure Act. Further,
Grove argues that barring him from raising the Confrontation Clause claim in post-conviction
proceedings eliminates any forum to raise his claim. The State argues that Grove forfeited his
Confrontation Clause claim by failing to object at trial. The State contends that it would invite
“sandbagging” if defense counsel could choose not to object at trial because the objection could
always be raised for the first time in post-conviction, bypassing the fundamental error rule
applicable on direct appeal. The State also points out that the Confrontation Clause issue can
also be raised in the context of ineffective assistance of counsel.
The scope of post-conviction relief is limited. Knutsen v. State, 144 Idaho 433, 438, 163
P.3d 222, 227 (Ct. App. 2007). Idaho Code Section 19-4901(a) states: “Any person who has
been convicted of, or sentenced for, a crime, and who claims . . . [t]hat the conviction or the
sentence was in violation of the constitution of the United States . . . may institute . . . a
proceeding under this act to secure relief.” However, a petition for post-conviction relief is not a
substitute for an appeal. I.C. § 19-4901(b). A claim or issue that was or could have been raised
on appeal may not be considered in post-conviction proceedings. Id.; Mendiola v. State, 150
Idaho 345, 348-49, 247 P.3d 210, 213-14 (Ct. App. 2010).
It is undisputed that trial counsel did not object to the admission of Dr. Ross’s autopsy
report, which incorporated Dr. Reichard’s findings from the brain autopsy, nor did defense

8
counsel object when medical experts testified regarding Dr. Reichard’s findings. Grove raised
the Confrontation Clause issue for the first time on direct appeal. This Court reviewed the claim
under the fundamental error doctrine outlined in State v. Perry, 150 Idaho 209, 245 P.3d 961
(2010). 1 We determined that although the State did not dispute that an unwaived constitutional
right was implicated, Grove was not able to meet the clear or obvious error prong of the analysis.
This Court stated that “the record simply does not eliminate the possibility that the failure to
object was strategic.” Grove, 151 Idaho at 492, 259 P.3d at 638. 2 The deposition of trial
counsel, taken after we issued our decision on direct appeal, reinforced this proposition. Trial
counsel testified that the autopsy report contained bad facts for his theory of the case and he
thought it would have been better to exclude it. However, he felt that the expert testifying for the
defense, Dr. Arden, would “poke enough holes . . . to make . . . reliance on that report
misplaced.” Counsel’s choice of witnesses, manner of cross-examination, and lack of objections

1
In Perry, the Supreme Court summarized the analysis which applies in cases of
unobjected-to error:
(1) the defendant must demonstrate that one or more of the defendant’s unwaived
constitutional rights were violated; (2) the error must be clear or obvious, 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) the defendant must demonstrate that the error affected the defendant’s
substantial rights, meaning (in most instances) that it must have affected the
outcome of the trial proceedings.
State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010) (footnote omitted).
2
More particularly, we stated:
In assessing whether to object in this instance, defense counsel would have not
only had to weigh the best case scenario that the testimony would be excluded,
but also the more likely possibility that a timely objection would have prompted
the state to subpoena Dr. Reichard to “defend” his findings and conclusions. Had
that occurred, anything short of the unlikely circumstance of Dr. Reichard
admitting that he erred in his methods and/or findings would have resulted in
diminishing the ability for Grove to argue that Dr. Reichard’s findings were
“faulty” and thus question the reliability of the testimony of each doctor that
relied on the brain autopsy to come to the conclusion that the injuries must have
been inflicted during the time that Grove was alone with K.M.--as he did at trial
both through cross-examination of Dr. Ross and through the testimony of
Dr. Arden. To refrain from objecting and instead attack Dr. Reichard’s report in
absentia is certainly a viable trial strategy, and thus we cannot say that it would
not be reasonable for either the court or defense counsel to allow the testimony.
State v. Grove, 151 Idaho 483, 492, 259 P.3d 629, 638 (Ct. App. 2011).
9
to testimony are considered tactical or strategic decisions. Giles v. State, 125 Idaho 921, 924,
877 P.2d 365, 368 (1994). Thus, Grove was provided the avenue of asserting the Confrontation
Clause issue as fundamental error. However, he failed to establish the Perry requirements.
In Mintun v. State, 144 Idaho 656, 661, 168 P.3d 40, 45 (Ct. App. 2007), the petitioner
challenged, through post-conviction proceedings, that his appellate counsel was ineffective for
not raising certain issues on appeal. Id. at 662, 168 P.3d at 46. In affirming the district court’s
denial of that claim, we held that the proper way for a defendant to challenge an unpreserved trial
error is to assert ineffective assistance of trial counsel in a post-conviction proceeding. Id. The
Court of Appeals has not held, “even tangentially, that an unpreserved trial error itself can be
raised in a post-conviction proceeding.” Bias v. State, 159 Idaho 696, 703, 365 P.3d 1050, 1057
(Ct. App. 2015) (upholding dismissal of claims of prosecutorial misconduct asserted for the first
time in post-conviction).
The alleged constitutional violation raised by Grove in post-conviction points to
counsel’s actions at trial and the repercussions of those actions, the same actions that will be
analyzed under the ineffective assistance of counsel claim in this case. It was trial counsel’s
failings, not just in failing to object at trial but also in failing to make a proper record as to
Dr. Reichard’s report, which resulted in insufficient proof as to the second prong of the
fundamental error analysis. It is incongruous for this Court to consider, in the same post-
conviction proceeding, a constitutional confrontation violation claim which places the prejudice
burden on the State on one hand, and on the other hand an ineffective assistance of counsel claim
which places the prejudice burden on the petitioner, both grounded upon the alleged failing of
counsel. Grove’s potential remedy is not in raising a claim of constitutional violation in post-
conviction proceedings; he already utilized that opportunity on direct appeal. Rather, Grove’s
potential remedy is in demonstrating that the forfeitures of claims of errors in the trial court were
the result of ineffective assistance of counsel, which will be addressed later in this opinion. Bias,
159 Idaho at 703, 365 P.3d at 1057 (citing Mintun, 144 Idaho at 662, 168 P.3d at 46). Grove has
failed to show error in the summary dismissal of the constitutional violation claim.
2. Prosecutorial misconduct
Grove argues that the district court erred in determining that his claim of prosecutorial
misconduct was waived because it was not raised on appeal. As mentioned above, a claim or
issue that was or could have been raised on appeal may not be considered in post-conviction

10
proceedings. I.C. § 19-4901(b); Mendiola, 150 Idaho at 348-49, 247 P.3d at 213-14. To be
granted post-conviction relief on an issue that could have been raised on direct appeal, but was
not, a petitioner must show, 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); Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct. App. 1991).
Grove challenges several instances of the prosecutor’s trial conduct that he contends were
a gross violation of a prosecutor’s duty to ensure fairness in every stage of the trial. Grove
asserts that the prosecutor: (1) projected family photos and autopsy photos of K.M. on a screen
when jurors were entering the courtroom; (2) elicited testimony from K.M.’s sister, a young
child, that was outside the scope of what the court had agreed to; (3) admitted photographs of the
crime scene which showed sympathy cards for K.M.’s mother in the background and were
inadmissible; (4) raised issues that were irrelevant and unfairly prejudicial when cross-examining
Grove; (5) presented inadmissible impeachment evidence when cross-examining Dr. Arden and
suggested Dr. Arden was on mission to support the defense; and (6) made various statements
during closing argument that were prejudicial.
There were no objections at trial to the events underlying these assertions. As noted by
the district court, even without trial counsel’s contemporaneous objection to the prosecutor’s
conduct, Grove’s appellate counsel could have raised the issue on appeal. In his petition, Grove
did not present the district court with any evidence that the issue could not, in the exercise of due
diligence, have been presented earlier. Rather, citing Perry, 150 Idaho at 226, 245 P.3d at 978,
he conclusively states that the unobjected-to prosecutorial misconduct could not have been raised
on appeal. However, the Court provided in Perry:
Where prosecutorial misconduct was not objected to at trial, Idaho
appellate courts may only order a reversal when the defendant demonstrates that
the violation in question qualifies as fundamental error . . . . If the defendant fails
to meet his burden then an appellate court may not reverse under the fundamental
error doctrine.
Id. at 227, 245 P.3d at 979.
The Court further noted that “the defendant 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. n.7.

11
Because Grove did not present evidence as to why the issue could not have been
presented on direct appeal, he has waived the issue. Again, Grove still has the opportunity to
assert ineffective assistance of counsel. The district court properly summarily dismissed the
stand-alone prosecutorial misconduct claim.
B. Ineffective Assistance of Counsel Claims Summarily Dismissed
In his petition, Grove alleged several instances of ineffective assistance of counsel. The
district court addressed some of these allegations after holding an evidentiary hearing. The
remaining allegations were summarily dismissed prior to the hearing. A petition for post-
conviction relief initiates a proceeding that is civil in nature. I.C. § 19-4907; Rhoades v. State,
148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 104 Idaho 676, 678, 662
P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App.
1992). Like a plaintiff in a civil action, the petitioner must prove by a preponderance of
evidence the allegations upon which the request for post-conviction relief is based. Goodwin v.
State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction
relief differs from a complaint in an ordinary civil action. Dunlap v. State, 141 Idaho 50, 56, 106
P.3d 376, 382 (2004). A petition must contain much more than a short and plain statement of the
claim that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). Rather, a
petition for post-conviction relief must be verified with respect to facts within the personal
knowledge of the petitioner, and affidavits, records, or other evidence supporting its allegations
must be attached or the petition must state why such supporting evidence is not included with the
petition. I.C. § 19-4903. In other words, the petition must present or be accompanied by
admissible evidence supporting its allegations or the petition will be subject to dismissal. Wolf v.
State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).
Idaho Code Section 19-4906 authorizes summary dismissal of a petition for post-
conviction relief, either pursuant to a motion by a party or upon the court’s own initiative, if it
appears from the pleadings, depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted, that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. When considering
summary dismissal, the district court must construe disputed facts in the petitioner’s favor, but
the court is not required to accept either the petitioner’s mere conclusory allegations,
unsupported by admissible evidence, or the petitioner’s conclusions of law. Roman v. State, 125

12
Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715
P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained
to draw inferences in favor of the party opposing the motion for summary 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). Such
inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify
them. Id.
Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven
by the record of the criminal proceedings, if the petitioner has not presented evidence making a
prima facie case as to each essential element of the claims, or if the petitioner’s allegations do
not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281
(2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary
dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a
matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in
the petitioner’s favor. For this reason, summary dismissal of a post-conviction petition may be
appropriate even when the state does not controvert the petitioner’s evidence. See Roman, 125
Idaho at 647, 873 P.2d at 901.
Conversely, if the petition, affidavits, and other evidence supporting the petition allege
facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be
summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004);
Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of
material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues.
Goodwin, 138 Idaho at 272, 61 P.3d at 629.
On appeal from an order of summary dismissal, we apply the same standards utilized by
the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if
true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925,
929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free
review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
Grove contends each of the following ineffective assistance of counsel claims were
erroneously dismissed: (1) deficiency in not asserting Grove’s state and federal constitutional

13
rights to confrontation and in failing to make evidentiary objections; (2) deficiency in not
objecting to Lisa’s testimony about the autopsy report; (3) deficiency in not objecting to the
paramedic’s testimony that Grove was too calm when he arrived; (4) deficiency in not cross-
examining Dr. Chin’s testimony that he could not have missed the injuries described in the
autopsy; (5) deficiency in not objecting to Dr. Chin’s testimony that “this autopsy report is the
most brutal case” he had ever seen; (6) deficiency in not objecting to Dr. Hunter’s testimony that
subarachnoid hemorrhage has immediate symptoms; (7) deficiency in not objecting to
Dr. Hunter’s testimony that K.M. was either “ejected from an automobile” or “was beaten very
severely”; (8) deficiency in not objecting to Dr. Hunter’s testimony that a short fall “is rarely,
rarely likely to produce any kind of significant head injury or bleeding” and then failing to
impeach; (9) deficiency in not objecting to Dr. Ross’s testimony that he was told about
hemorrhages in the psoas and retroperitoneal by the transplant surgeon; (10) deficiency in not
objecting to the foundation for Dr. Ross’s testimony regarding the head and alleged brain injuries
because he never viewed any of the slides or recuts himself; (11) deficiency in not objecting to
Dr. Ross’s testimony that Dr. Reichard’s observation of a tear in the corpus callosum showed “a
very significant force” applied, comparable to “a very high fall” of “a couple of stories or so,” or
“a motor vehicle accident, or inflicted blunt force trauma”; (12) deficiency in failing to object or
move to strike when Dr. Harper testified that Dr. Ross “is a super clinician”; (13) deficiency in
failing to object to the admission of photographs which included approximately thirty sympathy
cards; and (14) deficiency in failing to point out the differences between Dr. Reichard’s report
and the State witnesses’ conclusions drawn from it.
A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show
that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578,
580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a deficiency, the petitioner has the burden
of showing that the attorney’s representation fell below an objective standard of reasonableness.
Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Knutsen, 144 Idaho at 442,
163 P.3d at 231. To establish prejudice, the petitioner must show a reasonable probability that,
but for the attorney’s deficient performance, the outcome of the trial would have been different.

14
Aragon, 114 Idaho at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at 442, 163 P.3d at 231. This
Court has long adhered to the proposition that tactical or strategic decisions of trial counsel will
not be second-guessed on appeal unless those decisions are based on inadequate preparation,
ignorance of relevant law, or other shortcomings capable of objective evaluation. Gonzales v.
State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
1. Constitutional violation
Grove argues that the district court erroneously dismissed his ineffective assistance of
counsel claim as to his rights under the Confrontation Clause. After an extensive examination of
Confrontation Clause jurisprudence, the district court found that the autopsy report was not
testimonial and any objection to the testimony referring to the report would have been
overruled. 3 The district court also determined that trial counsel’s lack of objection may have
been tactical, noting this Court’s opinion in the direct appeal. Further, that because there was no
violation of the Confrontation Clause, trial counsel could not be deficient for failing to object to
testimony referencing Dr. Reichard’s findings. Therefore, the district court held that it was not
necessary to address the ineffective assistance of counsel claims as they related to Dr. Reichard’s
findings and summarily dismissed the claim.
Grove argues that the evidence referencing Dr. Reichard’s findings was testimonial and a
confrontation objection would have been sustained. Grove asserts that even if trial counsel’s
failure to object was due to a strategy, it was unreasonable. Grove avers that the failure to object
was prejudicial as the exclusion of evidence as to the timing and nature of the injuries would
have furthered the defense’s case. Finally, Grove argues that the district court did not rule on his
claim that trial counsel should have objected because the evidence relating to Dr. Reichard’s
findings was inadmissible under Idaho Rule of Evidence 703. The State argues that based on the
law as it stood at the time of trial, a confrontation objection would not have been meritorious.
Further, even if the objection had been meritorious, this alone does not support a prima facie
claim of ineffective assistance of counsel. Finally, there is no evidence that trial counsel’s lack
of objection was based on any objective shortcoming, but rather was a tactical decision based on
trial counsel’s belief that the defense’s expert witness could reveal weaknesses in the State’s
case.

3
Because the issue of a direct constitutional violation is not properly before us, we need
not determine whether the autopsy report was testimonial.
15
We agree that trial counsel’s decision not to object to the evidence referencing
Dr. Reichard’s findings was a strategic one. As mentioned above, counsel’s choice of witnesses,
manner of cross-examination, and lack of objections to testimony are considered tactical or
strategic decisions. Giles, 125 Idaho at 924, 877 P.2d at 368. This Court has long adhered to the
proposition that tactical or strategic decisions of trial counsel will not be second-guessed on
appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or
other shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880
P.2d 261, 263 (Ct. App. 1994); Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct.
App. 1989). Dr. Reichard’s findings are the crux of the central issues in this case--when the
injuries that ultimately caused K.M.’s death occurred and whether it was likely that K.M. would
have lost consciousness and/or shown severe symptoms immediately after the injuries were
inflicted. To that end, trial counsel was reasonably leery of Dr. Reichard being called to testify
and being a strong witness for the State. Further, Grove does not identify what trial counsel
could have achieved if Dr. Reichard had been required to testify as opposed to using the
defense’s own expert, Dr. Arden, to “poke holes” in Dr. Reichard’s findings. Grove has not
demonstrated that the cross-examination of Dr. Reichard would have been a more effective
strategy when, in fact, it is possible that Dr. Reichard’s testimony may have undermined
Dr. Arden’s testimony.
Grove has failed to demonstrate that trial counsel’s decision was the product of
inadequate preparation, ignorance of the law, or other objective shortcomings. Accordingly, we
will not second-guess this decision on appeal. As a result, the district court did not err in
summarily dismissing Grove’s claim for ineffective assistance of counsel in not asserting
Grove’s state and federal constitutional rights to confrontation and in failing to make related
evidentiary objections.
2. Lisa’s testimony
Grove argues that the district court erroneously dismissed his ineffective assistance of
counsel claim as to trial counsel’s failure to make a hearsay objection when Lisa testified that she
was told that K.M. “had blood in his brain” and “there was nothing they could do.” The district
court dismissed this claim concluding that a hearsay objection would not have been sustained
because Lisa “was not testifying as to the truth of the matter asserted, but rather explaining her

16
understanding of the events of the day.” Further, the district court determined that there was no
evidence of prejudice.
Grove avers that because the State argued for dismissal on the basis of strategy, the
district court failed to give sufficient notice before dismissing on the ground that the statement
was not hearsay. 4 However, Grove does not challenge the district court’s determination that
there was no evidence of prejudice. Therefore, we affirm the district court’s conclusion. State v.
Goodwin, 131 Idaho 364, 366-67, 956 P.2d 1311, 1313-14 (Ct. App. 1998) (appellate court will
not reverse where trial court’s ruling is based on an unchallenged “independent, alterative
basis”).
3. Paramedic’s testimony
Grove argues that the district court erroneously dismissed his ineffective assistance of
counsel claim as to trial counsel’s failure to object to the paramedic’s testimony that Grove
appeared “too calm.” The paramedic talked with Grove to obtain K.M.’s medical history as
other paramedics carried K.M. to the ambulance. Grove avers that the paramedic’s opinion was
not relevant nor did it fall within the scope of admissible opinion testimony by a lay witness
because it involved specialized knowledge. The district court dismissed the claim finding that
the testimony was admissible as a lay opinion, that Grove had not raised an issue of material fact
that counsel was deficient for failing to object, and that Grove also failed to establish a material
issue of fact as to prejudice. 5
The paramedic testified, in part:
Q. Describe, if you can, his demeanor while you were talking to him.
A. It was calm, very calm. Too calm, in my opinion.
Q. By saying “too calm,” you didn’t know him before, did you?
A. Huh-uh.
Q. And you don’t know how he reacts to--
A. Not at all.

4
Where the State has filed a motion for summary disposition, but the court dismisses the
petition on grounds different from those asserted in the State’s motion, it does so on its own
initiative and the court must provide twenty days’ notice. Saykhamchone v. State, 127 Idaho
319, 322, 900 P.2d 795, 798 (1995).
5
Grove contends that the district court dismissed on grounds not raised by the State. We
disagree. When a district court summarily dismisses a post-conviction claim relying in part on
the same grounds presented by the State in its motion for summary dismissal, the notice
requirement has been met. Kelly, 149 Idaho at 523, 236 P.3d at 1283.
17
Q. But when you say “too calm,” is that based on your experience with other
people in similar situations?
A. Yes. Parents are usually excitable when their child is very sick.
The Idaho Rules of Evidence provide that a lay witness may give testimony containing an
opinion or inference if the testimony is “limited to those opinions or inferences which are
(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of
the testimony of the witness or the determination of a fact in issue, and (c) not based on
scientific, technical or other specialized knowledge . . . .” I.R.E. 701. The Idaho Supreme Court
has held that the “perception of the witness” requirement in Rule 701(a) requires opinions and
inferences to be based upon “the witness’s personal knowledge of events or facts . . . .” State v.
Raudebaugh, 124 Idaho 758, 767, 864 P.2d 596, 605 (1993). This requires “the same personal
knowledge of events as required by I.R.E. 602,” which provides that “a witness may not testify
to a matter unless evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter.” Id. (quoting I.R.E. 602). Therefore, “a lay witness may give
an opinion or inference if doing so helps to explain the witness’s testimony or to determine a
disputed fact and the opinion or inference is based upon the witness’s personal knowledge as
demonstrated by evidence.” State v. Joy, 155 Idaho 1, 16, 304 P.3d 276, 291 (2013).
The paramedic’s testimony was rationally based on his own perceptions, it was helpful to
the jury, and the basis for the opinion did not rely on scientific, technical, or other specialized
knowledge. The paramedic’s testimony established that he had personal knowledge of the matter
on which he was rendering an opinion. He testified that he had been a paramedic for fourteen
years. The witness was testifying based on Grove’s demeanor during their conversation. With
respect to Grove’s assertion that the paramedic’s opinion was based on the false assumption that
Grove was K.M.’s father, the paramedic also testified that Grove had told him that K.M. had
been ill when he returned from visiting his father. Regardless, Grove himself testified that he
thought of K.M. as his son. We conclude that the district court did not err in summarily
dismissing Grove’s ineffective assistance of counsel claim pertaining to the paramedic’s
testimony.
4. Dr. Harper’s testimony
Grove argues that the district court erroneously dismissed his ineffective assistance of
counsel claim as to trial counsel’s failure to object or move to strike when Dr. Harper testified

18
that Dr. Ross “is a super clinician.” Grove further argues that trial counsel failed to object to
irrelevant and unfairly prejudicial testimony regarding the force needed to inflict K.M.’s injuries.
During trial Dr. Harper was asked, “Are you familiar with Dr. Marco Ross?” She
answered: “I am. Dr. Ross, I’m sorry to say, is no longer our--in our Medical Examiner’s
Office, because he is a super clinician. But he had another opportunity and has moved on. But
yes, I am familiar with Dr. Ross.” She also testified that the kind of force necessary to inflict
injuries similar to those in K.M.’s abdomen was comparable to being dragged by a horse, being
stepped on by a horse, or being an unrestrained passenger in a car accident, and that she likely
lacked the upper-body strength to inflict such injuries absent kicking, stomping, or using a bat.
Grove has failed to demonstrate deficient performance or prejudice. There is no evidence
in the record of any objective failing of counsel, such as inadequate preparation or ignorance of
the law. Moreover, there is no evidence to rebut the presumption of a proper tactical choice in
declining to object to Dr. Harper’s characterization of Dr. Ross. Likewise, there is no evidence
that additional foundation for the testimony regarding force could not have been laid as to her
testimony regarding force and, therefore, no evidence either that the lack of objection was not a
proper tactic or that Grove was prejudiced. We conclude that the district court did not err in
summarily dismissing Grove’s ineffective assistance of counsel claim pertaining to Dr. Harper’s
testimony.
5. Photographs of sympathy cards
Grove argues that the district court erroneously dismissed his ineffective assistance of
counsel claim as to trial counsel’s failure to object to the admission of photographs taken at
K.M.’s home which showed in the background approximately thirty sympathy cards sent to Lisa
after K.M.’s death. The district court determined that Grove failed to “establish how sympathy
cards sent to [Lisa] were inflammatory or unduly prejudicial” and therefore failed to establish
either element of a Strickland claim.
Evidence may be excluded if its potential for “unfair prejudice” substantially outweighs
its probative value. I.R.E. 403. “Unfair prejudice” is the tendency to suggest a decision on an
improper basis. State v. Ruiz, 150 Idaho 469, 471, 248 P.3d 720, 722 (2010). Grove has not
articulated how evidence of expressions of sympathy for loss of a child unfairly prejudiced him.
Further, a review of the testimony establishes that sympathy cards were never mentioned.
Expressions of sympathy for the loss of a child would have been made to K.M.’s mother

19
regardless of the circumstances surrounding his death. There is nothing prejudicial in the jury
being aware that friends and family expressed sympathy for K.M.’s death. “Where the alleged
deficiency is counsel’s failure to file a motion, a conclusion that the motion, if pursued, would
not have been granted by the trial court, is generally determinative of both prongs of the
[Strickland ] test.” State v. Payne, 146 Idaho 548, 562, 199 P.3d 123, 137 (2008) (quoting
Sanchez v. State, 127 Idaho 709, 713, 905 P.2d 642, 646 (Ct. App. 1995)). Grove has failed to
show either deficient performance or prejudice. We conclude that the district court did not err in
summarily dismissing Grove’s ineffective assistance of counsel claim pertaining to the
photographs.
6. Remaining ineffective assistance of counsel claims summarily dismissed
Grove argues that the district court erroneously dismissed the following ineffective
assistance of counsel claims, asserting that the court did not expressly dismiss or address the
claims: deficiencies in not properly cross-examining Dr. Chin’s testimony; not objecting to
Dr. Chin’s characterization of the autopsy report; not objecting Dr. Hunter’s testimony regarding
subarachnoid hemorrhage; not objecting to Dr. Hunter’s testimony regarding the cause of K.M.’s
injuries; not objecting to Dr. Hunter’s testimony as to injuries resulting from a fall and then
failing to impeach; not objecting to Dr. Ross’s testimony pertaining to hemorrhages; not
objecting to the foundation for Dr. Ross’s testimony regarding the head and brain injuries; not
objecting to Dr. Ross’s testimony regarding the tear in the corpus callosum; and failing to point
out differences between Dr. Reichard’s report and the conclusions drawn from it by the State’s
witnesses.
Grove relied upon Dawson v. Cheyovich Family Trust, 149 Idaho 375, 234 P.3d 699
(2010). In that case, the district court dismissed the plaintiff’s claims for failure to prosecute and
granted summary judgment on the defendant’s counter-claims. Id. at 378, 234 P.3d at 702. The
plaintiff moved both for reconsideration and to set aside the judgment under I.R.C.P. 60(b)(6).
Dawson, 149 Idaho at 378-79, 234 P.3d at 702-03. The district court denied the reconsideration
but did not issue a ruling on the 60(b)(6) motion. Id. at 379, 234 P.3d at 703. The Idaho
Supreme Court held that the district court “erred by failing to issue a ruling on Dawson’s Rule
60(b)(6) motion.” Id. at 380, 234 P.3d at 704. In the present case, the district court did not fail
to rule on the State’s motion for summary disposition. Rather, the district court held as follows:

20
Based upon the foregoing analysis, there are issues of material fact with
regard to whether the Petitioner received ineffective assistance of counsel during
the trial in this case. Thus, an evidentiary hearing will be held on these issues,
limited to those four claims as set forth above. The State’s motion for summary
disposition is denied with respect to these limited issues. However, the State’s
motion is granted as to the remaining issues, consistent with the foregoing
analysis.
The record establishes that the district court did rule on the State’s motion, granting it as
to all but four claims. That the district court did not set forth its analysis as to some of those
claims was not error. “Summary disposition of a post-conviction relief application under
I.C. § 19-4906(c) is the procedural equivalent of summary judgment under I.R.C.P. 56.” Roman,
125 Idaho at 647, 873 P.2d at 901. “[F]indings of fact are not necessary to support decisions of
summary judgment motions under I.R.C.P. 56, or to support a decision relating to any other
motion, except with respect to motions for involuntary dismissal under I.R.C.P. 41(b).” Bank of
Idaho v. Nesseth, 104 Idaho 842, 846, 664 P.2d 270, 274 (1983) (citing I.R.C.P. 52(a)). See also
Gibson v. Ada Cty., 142 Idaho 746, 759, 133 P.3d 1211, 1224 (2006) (“findings of fact are
unnecessary” in summary judgment motions); Keesee v. Fetzek, 111 Idaho 360, 361, 723 P.2d
904, 905 (Ct. App. 1986). Grove has failed to show that the district court erred in summarily
dismissing these claims.
C. Ineffective Assistance of Counsel Claims Denied After Evidentiary Hearing
Grove asserts trial counsel’s performance was ineffective with respect to: (1) direct and
cross-examination of Grove at trial; (2) direct and cross-examination of Dr. Arden; and
(3) closing argument. Following an evidentiary hearing, the district court issued a written order
denying Grove’s claim of ineffective assistance of counsel as it pertained to each of these claims.
In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865,
869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct.
App. 2010). When reviewing a decision denying post-conviction relief after an evidentiary
hearing, an appellate court will not disturb the lower court’s factual findings unless they are
clearly erroneous. Idaho Rule of Civil Procedure 52(a); Dunlap, 141 Idaho at 56, 106 P.3d at
382; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the
witnesses, the weight to be given to their testimony, and the inferences to be drawn from the
evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56,

21
106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We
exercise free review of the district court’s application of the relevant law to the facts. Baxter,
149 Idaho at 862, 243 P.3d at 678.
1. Grove’s testimony
Grove asserts trial counsel’s performance was ineffective during the direct and cross-
examination of Grove at trial. Specifically, Grove claims counsel was deficient because he
introduced evidence regarding Grove’s relationship with his own son and then failed to object
when the prosecuting attorney asked whether Grove was behind on child support payments.
Further, Grove asserts trial counsel was deficient for failing to object when the prosecuting
attorney questioned Grove regarding an Ativan prescription.
a. Grove’s son
Grove alleges deficiency because trial counsel introduced the following testimony about
his son:
It was a complicated situation with Alex. He’s ten years old. He’s a great
boy. It started off rough with the very first. Me and his mother, she basically was
gone. When she was pregnant with [K.M.] (sic), she started seeing some other
guy. And come to find out, she moved in with him. And, you know, it was a real
rocky relationship the whole way through.
And at the latter--the latter time when I was seeing him, there was a pull
with him. I could tell that they were telling him things, and he would ask me
questions that I didn’t think--and it was a hard situation. And at the time, it was
my decision that I didn’t want to stress him out with it, so I felt it would be best if
I removed myself from the situation until he was old enough to be able to--I could
talk with him about what was going on. And he wouldn’t--he wouldn’t have
these feelings, because I could tell he was being torn, and I didn’t want to see him
go through that. And I thought the best would be for what I did, and that was the
choice that I made.
Thereafter, the prosecuting attorney followed the questioning to reveal that Grove did not
maintain a relationship with his son nor did he make child support payments. At the evidentiary
hearing, trial counsel stated that he could not recall why he elicited this testimony and he
admitted that it was unfavorable to Grove. In fact, trial counsel had filed a motion in limine to
prohibit any mention of the relationship and/or child support. But, the record does not show a
ruling on this motion. Trial counsel further stated that he thought about objecting to the
prosecutor’s question pertaining to child support, but chose not to in order to not draw the jury’s
attention to the issue more than it already had been. An expert witness for Grove, attorney
Andrew Parnes, testified that there was no valid strategic purpose for Grove’s testimony.
22
Further, that the questioning regarding child support was objectionable because it was not
relevant, was the subject of a motion in limine, and was inadmissible under I.R.E. 403.
This Court has recognized that “counsel has broad discretion when formulating strategy
and tactics prior to and during trial.” State v. Roles, 122 Idaho 138, 148, 832 P.2d 311, 321 (Ct.
App. 1992). See also Ramsey v. State, 159 Idaho 887, 367 P.3d 711 (Ct. App. 2015). Thus, we
will not second-guess trial counsel’s decisions absent evidence of “inadequate preparation,
ignorance of the relevant law, or other shortcomings capable of objective evaluation.” Davis,
116 Idaho at 406, 775 P.2d at 1248. To satisfy the requirements of Strickland, Grove must show
that trial counsel’s performance was deficient and that prejudice resulted from the deficiency. It
is unreasonable to assume that the jury would make the leap from evidence of a father who has
had difficulties with involvement in his child’s life to one capable of committing a fatal battery
against a toddler. In other words, the evidence is so tangential to the issue of when and how the
injuries were inflicted that its admission does not undermine confidence in the outcome. The
district court did not err in finding that trial counsel’s representation did not fall below
reasonable professional standards with respect to Grove’s testimony or that the record lacks
evidence that prejudice resulted from any such deficiency.
b. Prosecuting attorney’s statement
Grove alleges deficiency in failing to move to strike the prosecutor’s comments after his
objection to a statement made by the prosecuting attorney was sustained. The prosecutor
characterized Grove’s testimony as “the story you’ve told,” which is “the story you need the jury
to believe” and then suggested that “some things . . . just don’t really seem to make sense.” Trial
counsel’s objection was sustained, but he did not ask that the comments be stricken or that the
jury be instructed to disregard the comments. At the evidentiary hearing, trial counsel did not
recall why he did not ask to strike. Mr. Parnes testified that counsel should have asked to strike
and that the comment was so egregious that a mistrial motion should have been considered.
The district court held that Grove had failed to establish that trial counsel’s failure to ask
for a motion to strike rises to the level of deficient performance. Further, there is nothing in the
record to establish that, but for the failure to request the district court strike the testimony, the
outcome of the case would have been different. We agree. Therefore, the district court did not
err in finding that Grove failed to meet his burden on this claim.

23
c. Grove’s medication
Grove alleges deficiency in failing to object to the prosecutor asking Grove during cross-
examination about his emotional state during trial. At trial, Grove was scheduled to testify on a
Friday; however, the case was delayed until Monday because Grove was unable to testify or aid
in his defense due to his emotional state on that day. The jury was informed that an unforeseen
medical situation had arisen which affected the court’s ability to proceed that day. During cross-
examination of Grove, the prosecuting attorney asked if Grove was currently taking any
medications, when the medication was prescribed, and whether it was prescribed due to Grove’s
emotional state on Friday. In his closing argument, Grove’s trial counsel argued that the
evidence of a breakdown on Friday was simply an ad hominem attack that had nothing to do with
the case. The prosecutor then argued in rebuttal:
So, [defense counsel] talked about, well, why bring up the emotional breakdown
of the defendant? Trying to attack the defendant. No, there’s a reason for it. The
reason for it is the State believes that he had an emotional breakdown, an
instantaneous fit of anger, that morning that resulted in these injuries . . . .
At the evidentiary hearing, trial counsel testified that he did not object because he was not sure
the testimony was objectionable. Mr. Parnes testified that in his opinion defense counsel should
have objected to the testimony as irrelevant and highly prejudicial.
On appeal, Grove cites to United States v. Wolf, 787 F.2d 1094, 1099 (7th Cir. 1986) to
support his contentions. However, in that case the court found defense counsel was deficient
because the attorney’s strategy of the case was to not object to any line of questioning by the
prosecutor. In this matter, there is no evidence in the record that defense counsel was operating
in a manner similar to the defense attorney in Wolf. The district court determined that trial
counsel’s lack of objection fell into tactical and strategic decision making, and thus, did not
establish counsel was ineffective. Grove has failed to establish that trial counsel was deficient
for failing to object to the questions regarding Ativan. Further, Grove has not shown that had the
testimony not been elicited, the outcome of the case would have been different. Therefore, the
district court did not err in dismissing this claim.
2. Dr. Arden’s testimony
Grove asserts trial counsel’s performance was deficient during the direct and cross-
examination of Dr. Arden at trial. Specifically, Grove claims counsel was deficient because he

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failed to: (1) provide iron stain slides to Dr. Arden prior to trial; and (2) object to the
impeachment of Dr. Arden and thereafter rehabilitate him.
a. Iron stains
Grove alleges deficiency in trial counsel’s failure to provide Dr. Arden with the iron stain
slides, even though Dr. Arden testified that he had asked counsel for them. Trial counsel
testified at the evidentiary hearing that he requested recuts for Dr. Arden’s review, but not
specifically iron stain slides. Mr. Parnes testified that the failure to provide an expert with all
relevant information is contrary to reasonable professional norms.
In preparing for the underlying criminal case, Dr. Arden requested a set of all the
microscopic slides that were done pursuant to the autopsy, including the brain examination and
slides that utilized special stains. At the time of trial, Dr. Arden had copies of all slides, except
iron stain slides that were reviewed by Dr. Ross when conducting the autopsy of the body. There
were no iron stain slides made of the brain.
Dr. Arden testified at trial as follows:
Q. Did you feel like there was any information that you needed in order to
form opinions about this that was not provided to you?
A. No sir. And, in fact, I will tell you that along the course of reviewing
materials, one of the things that I felt I needed was the recuts of the slides.
They didn’t come initially. And so, at that point, I requested them of you;
and you, you and the State arranged for them to be provided. So, what I
requested I was given.
Dr. Arden further testified that there were abdominal injuries that were forty-eight to
seventy-two hours of age and other injuries that were more than a week old. Dr. Arden did
review the iron stain slides of the abdomen in preparation for the post-conviction relief
evidentiary hearing. At the evidentiary hearing, Dr. Arden testified that examination of the iron
stain slides led to the discovery of evidence of additional healed injuries in one of the victim’s
eyes, his back, and the mesentery in his abdomen. However, Dr. Arden confirmed that his
opinion regarding the injuries that led to the victim’s death were the same as his opinion
presented at trial.
As the district court noted, the existence of injuries older than those which caused the
victim’s death does not call the verdict into question. Dr. Arden testified that he was adequately
prepared and Grove has not shown a reasonable probability that the result would have been
different had Dr. Arden reviewed the iron stain slides. Therefore, Grove was not prejudiced by

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trial counsel failing to provide iron stain slides to Dr. Arden. The district court did not err in
dismissing this claim.
b. Impeachment of Dr. Arden
Grove alleges deficiency in trial counsel’s handling of information available for purposes
of impeaching Dr. Arden regarding alleged gross mismanagement when he was the Chief
Medical Examiner in Washington, D.C., and failing to rehabilitate Dr. Arden on redirect
examination. During cross-examination, the prosecuting attorney questioned Dr. Arden
regarding the issues surrounding his departure from employment as Chief Medical Examiner in
Washington, D.C. Trial counsel testified at the evidentiary hearing that he was aware of
potential impeachment issues with respect to Dr. Arden’s employment. Trial counsel stated that
he did not object to the prosecutor’s attempt to impeach because none of the issues went to
Dr. Arden’s opinion or his medical abilities. He further explained that he did not feel an
objection would make a difference to the opinions presented. Trial counsel testified that in
hindsight, it may have been better to present the issue in direct testimony to avoid the appearance
of trying to hide the information or file a motion in limine to exclude the evidence. Mr. Parnes
testified that trial counsel’s failure to object and failure to file a motion in limine were prejudicial
and deficient performance.
Trial counsel’s decisions on this issue are strategic matters. See Giles, 125 Idaho at 924,
877 P.2d at 368 (“[C]ounsel’s choice of witnesses, manner of cross-examination, and lack of
objection to testimony fall within the area of tactical, or strategic, decisions, as does counsel’s
presentation of medical evidence.”). “[S]trategic 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). Grove has presented no evidence suggesting that these
decisions were the product of inadequate preparation or another shortcoming capable of
objective review. On the contrary, trial counsel testified that he was aware of the allegations
made against Dr. Arden during the course of his prior employment through conversations with
Dr. Arden and his own research on Dr. Arden’s background. He also acknowledged that he
assumed the prosecuting attorney was aware of the allegations as well. Trial counsel determined
that the testimony was innocuous. Further, the evidence that Dr. Arden was forced to change

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career paths due to mismanagement was admissible for purposes of impeachment in this case; it
calls into question the witness’s credibility. Grove has not shown that the outcome of the case
would have been different but for the impeachment of Dr. Arden.
Finally, Grove asserts deficiency in trial counsel’s failing to object to the prosecuting
attorney’s question regarding whether Dr. Arden was on “a special mission” to help Grove. Trial
counsel testified at the evidentiary hearing that he could not recall why he did not object to the
State characterizing Dr. Arden as being on a special mission, but he was certain Dr. Arden was
not going to tell the jury he was on a mission. Mr. Parnes testified that the questioning was
objectionable.
It was neither deficient nor prejudicial for trial counsel to conclude that allowing
Dr. Arden to answer and affirmatively state that he had fully cooperated with the prosecutor’s
office was more effective than objecting. Because the central point of the question was valid and
the witness explained why the characterization was unfair, there was no prejudicial effect.
Therefore, the district court did not err in dismissing this claim.
3. Closing argument
Grove alleges deficiency by trial counsel not objecting to and moving for a mistrial based
on prosecutorial misconduct in closing and rebuttal argument. At the evidentiary hearing, trial
counsel testified that he did object once to statements made by the prosecutor during the closing
statement. Further, that when trial counsel made his closing statement, he responded to the
State’s theory of the case and explained where the State failed to meet its burden of proving the
evidence beyond a reasonable doubt. Mr. Parnes testified that in his opinion trial counsel should
have objected to the statements made by the prosecuting attorney. Mr. Parnes opined that
because trial counsel did not have an explanation as to why he did not object to the statements,
there was no tactical or strategic reasoning employed during the closing arguments. The district
court concluded that the decision to not object to certain argument was strategic, and there was
no prejudice from lack of an objection. The district court further concluded that none of the
allegedly objectionable arguments rose to the level of being sufficiently egregious that the
constitution required counsel to object.
Grove first contends that the district court erred when it did not find trial counsel
ineffective for not objecting when the prosecutor used the phrase “long-term” in characterizing
the defense’s position on when K.M.’s injuries occurred. In context, the prosecutor drew a

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distinction between the State’s evidence showing K.M. would have immediately suffered
debilitating pain and been unable to function after being injured while “the defense would have
you believe” that K.M.’s symptoms of not feeling well and vomiting the night before he was
rushed to the emergency room were the “result of some long-term brain injury.” In the context
of the evidence at trial, the jury was well aware of the timeframes of the injuries as advanced by
the defense being more remote from the victim’s death than as advanced by the State.
Grove next argues that it was objectionable when the prosecutor referenced other
incidents of children being killed by caretakers. During closing, trial counsel argued that the
State’s theory “makes no sense” because the State would
have to believe that between 7:54 and 8:30 that morning, this young man, who
loved this child, played with this child, treated him as his own, the child thought
of him as a father, no indication of any problems whatsoever at any time, decided
in that half hour, bang, I’m going to beat this kid.
The prosecutor responded to this argument in rebuttal by asserting that the State’s
position was not that Grove simply decided to beat K.M., but that he beat K.M. in a “fit of
[fury].” He agreed with trial counsel that “every crime like this is senseless,” but that “doesn’t
mean it doesn’t happen.” Relying on the jurors’ “life experiences,” “knowledge,” and “common
sense,” the prosecutor argued that parents and caretakers do kill children, citing examples that
had recently been in the news.
Grove also argues that trial counsel’s performance was deficient in not objecting to the
prosecutor’s comment in argument about Dr. Ross’s “unenviable task of taking [K.M.]’s body
apart piece by piece to determine, to the best of his ability, what had happened.” The challenged
statement was made in the context of pointing out that the State’s experts either treated K.M.
before his death or directly examined his body shortly thereafter.
Grove next claims the district court erred in relation to a comment in closing argument
about a murderer going free. To put the comment into context, during closing argument, trial
counsel argued that the beyond a reasonable doubt standard protected the jury from thinking they
might have convicted someone who is not guilty. The prosecutor responded by talking about the
standard and included the argument, “We do not want to convict an innocent man. But at the
same time, we don’t want to let a murderer go free.”
Finally, Grove argues that trial counsel was ineffective for not objecting to the
prosecutor’s rebuttal argument regarding Grove’s emotions. During closing argument, trial

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counsel argued that cross-examination of Grove “about having a breakdown last Friday” “has
nothing to do with anything, other than get at the man.” The prosecutor denied that he was
“[t]rying to attack the defendant,” and argued that the evidence showed two emotional
breakdowns, one at the time the defendant beat K.M. and the other when he was to testify about
what happened, and also an “emotional overload” when telling his family that K.M. was injured
in a fall from a countertop. Specifically, the prosecutor argued: “The reason for it is the State
believes that he had an emotional breakdown, an instantaneous fit of anger, that morning that
resulted in these injuries to . . . [K.M.].”
The right to effective assistance extends to closing arguments. See Bell v.
Cone, 535 U.S. 685, 701-02 [122 S. Ct. 1843, 1853-54, 152 L.Ed.2d 914, 931]
(2002); Herring v. New York, 422 U.S. 853, 865 [95 S. Ct. 2550, 2556–57, 45
L.Ed.2d 593, 602] (1975). Nonetheless, counsel has wide latitude in deciding
how best to represent a client, and deference to counsel’s tactical decisions in his
closing presentation is particularly important because of the broad range of
legitimate defense strategy at that stage. Closing arguments should “sharpen and
clarify the issues for resolution by the trier of fact,” Herring, 422 U.S. at 862 [95
S. Ct. at 2555, 45 L.Ed.2d at 600], but which issues to sharpen and how best to
clarify them are questions with many reasonable answers. Indeed, it might
sometimes make sense to forgo closing argument altogether. See Bell, 535 U.S. at
701-02 [122 S. Ct. at 1863-54, 152 L.Ed.2d at 931]. Judicial review of a defense
attorney’s summation is therefore highly deferential . . . . Yarborough v. Gentry,
540 U.S. 1, 5-6, 124 S. Ct. 1, 4, 157 L.Ed.2d 1, 7-8 (2003).
State v. Abdullah, 158 Idaho 386, 508, 348 P.3d 1, 123 (2014).
The district court did not err in finding that decisions made by trial counsel during
closing arguments “fell within the wide range of reasonable professional assistance,” and that
there was no prejudice. “[A]bsent egregious misstatements, the failure to object during closing
argument and opening statement is within the wide range of permissible professional legal
conduct.” Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013). The district court
correctly concluded that the prosecutor’s statements, taken in context, did not rise to the level of
egregious. Further, the district court correctly concluded that Grove failed to prove prejudice
and that there is no reasonable probability that the outcome of the case would have been different
had trial counsel objected. Therefore, the district court did not err in dismissing this claim.
4. Cumulative effect
Finally, the district court correctly rejected Grove’s argument that there was cumulative
prejudice.

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III.
CONCLUSION
The judgment dismissing, in part and denying in part, Grove’s petition for post-
conviction relief is affirmed.
Judge GUTIERREZ and Judge MELANSON CONCUR.

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