1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 46798

DAXX E. DIAZ ,
Petitioner

- Appellant ,

v.

STATE OF IDAHO ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: May 11, 2020
Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Melissa Moody , District Judge.
Judgment dismissing petition for post

- conviction relief, affirmed

. Riggins Law, PA ; Paul E. Riggins , Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans , Deputy Attorney General, Boise, for respondent.

________________________________________________ HUSKEY, Chief Judge Daxx E. Diaz appeals from the district court’s judgment dismissing his petit ion for post

conviction relief. Diaz argues the court erred because he established ineffective assistance of
counsel for failure to utilize an ex pert during his criminal trial. Because Diaz’s trial counsel’s strategic decision not to utilize an expert was not the prod uct of inadequate preparation, ign orance of the relevant law, or other criteria capable of objective evaluation, Diaz failed to
establish deficient performance as required for an ineffective assistance of counsel claim. Accordingly, the district court’s judgment dismissing Diaz’s petition for post

- conviction relief is
affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
After pleading guilty to driving without privileges and posse ssion of a controlled substance, both misdemeanors, a jury found Diaz guilty of felony driving under the influence. Diaz entered a guilty plea to be ing a persistent violator . For felony driving under the influence,2 the district court sentenced Diaz to thirteen years, with eight years determinate
, and retained jurisdiction. Subsequently, the court relinquished jurisdiction and sua sponte reduced the determinate term of the sentence to five years, and this Court affirmed the sentence and judgment
of conviction. State v. Diaz , Docket No. 44298 (Ct. App. May 23, 2017) (unpublished)

. Diaz filed a pe tition for post

- conviction relief alleging, among other claims, ineffective
assistance of trial counsel for failure to consult and utilize a toxicologist during his criminal trial

. Diaz reasoned if his counsel had consulted and utilized an expert to count er the testimony of the State’s expert witnesses, there was a reasonable p ossibility the jury would ha ve acquitted him of
the driving under the influence charg e. After the district court appointed counsel, Diaz filed an amended petition, which again alleg ed trial counsel’s failure to consult with or retain an expert witness to testify in Di az’s defense.
The State filed a motion for summary disposition
, and the district court issued a notice of
intent to dismiss Diaz’s amended petition for post

- conviction relief. Diaz responded and provided an affidavit from a toxicologist that detailed his professional disagreements with the trial testimony of the State’s experts

. Subsequently, the district court ordered an evidentiary hearing on Dia z’s ineffective assistance o f counsel claim for failure to utilize a toxicologist. The
court dismissed all other claims raised in the petit ion for post

- conviction relief.
At the evidentiary hearing , Diaz ’s trial counsel testified that he met with Diaz w ell over a
dozen times in prepa ration of Diaz’s criminal trial and thought critically about the ways in which he could best pr esent a compelling case

. Trial counsel believed the best trial strategy for Diaz’s
defense was to make the simplest case to the j ury. Instead of relying on toxicologists or pharmacists to tell the jury if Diaz was impaired, counsel believed it would be most effective to show the jury that Diaz did not appear impaired through the use of body camera footage a t the
time of the traffic stop. Although witnesses reported that Diaz was driving erratically, b ecause Diaz appeared sober and compliant in the video footage
, counsel viewed this evidence as the “biggest strength in the case ”

-- the jury would not have to speculate on whether Diaz was impaired, “ [ t ] hey can see it for themselves.” Although trial counsel acknowledged it was possible to retain an expert in Diaz’s case, he
testified he did not believe utilizing an expert would be beneficial at the time. Counsel testified that using an exp ert came with risk, particularly risk the jury would be confused by the testimony:3 I’m not sure I felt at the time that having our own expert would have necessarily advanced the ball down the field, if you will, to where we wante d to go in an effect ive manner. That is, I’m not sure it would have done much more than possibly confuse the jurors. Additionally, counsel testified that much of the expert testimony was not in dispute; although the report indicated that Diaz had alcohol and at least one d epressant in his system,
Diaz admitted that he consumed alcohol and at least one prescription drug earlier in the day

. Therefore, i nstead of relying on an additional expert, counsel testified he believed he could sufficiently address the scientific eviden ce presented by the State’s experts through effective

cross examination and subsequently focus the defense’s argument upon the video evid ence, which counsel believed to be the strongest as pect of the case. At the close of the evidentiary hearing
, the dis trict court found Diaz had not presented
evidence to show his trial counsel’s performance was deficient , as required for an ineffective
assistance of counsel claim. After reading the law regarding deficient performance into the record, the court found:
I know that I have listened to a lot of testimony this morning, but the case is very straightforward to me. I do not have any evidence, I do not have any evidence that [trial counsel’s] decision not to consult with an expert was deficient performance. I h ave argument that it was deficient performance. I have argument that the Court can infer on its own tha t it was deficient performance. But I do not have any evidence that it was deficient performance. Indeed, [trial counsel] testified that he intentiona lly did not consult. Now, that’s my word. He did no t use the word “intentionally.” But I’m characterizing it that way based upon the entirety of his testimony. He made a decision. He prepared the case. He spoke with the petitioner, h e testified
, at least 12 times. Th is was not lack of preparation. Thi s was not ignorance of the law. There’s no evidence in the record to the contrary. So I will make the finding the petitioner has not met his burden with respect to the first prong of Strickland

. 1 Additionally , the district c ourt found Diaz failed to establish a reasonable probability that he was prejudiced by his attorney’s performance under the second prong of S trickland

. Therefore, the court dismissed Diaz’s claim for post

- conviction relief

. Diaz t imely appeals

.

1 Strickland v. Washington , 466 U.S. 668 (1984)

.4 II.
STANDARD OF REVIEW 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. I.R.C.P. 52(a); Dunlap v. State , 141 Idaho 50, 56, 106 P.3d 376, 382 (2004);
Russell v. State , 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight t o 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, 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.
III.
ANALYSIS
D iaz alleges the district court erred in dismissing his petition for post

- conviction relief
because he established that his trial counsel’s failure to consult an expert co nstituted deficient performance and had the defense utilized the expert, there w as a reasonable possibility the jury would have acquitted Diaz of the charge. In response, the State ar gues the district court did not
err because Diaz did not meet his burden to establish ineffective assistance of counsel or prejudice

. The State reasons Diaz did not show deficient performance because his trial counsel made a strategic decision not to util ize an expert and Diaz did not establish prejudice because the State presented overwhelming evidence of his guilt. 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 r easonableness.5 Aragon v. State , 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Knutsen v. State , 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007). To establish prejudice, the petitioner must show a reasonable probability that, but for the attorney’ s deficient performance, the outcome of the trial
would have been different. Aragon , 114 Idaho at 761, 760 P.2d at 1177; Knutsen , 144 Idaho at 442, 163 P.3d at 231. This Court has long adhered to the proposition that tactical or strategic
decisions of tr ial counsel will not be second

- guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective
evaluation. Gonzales v. State , 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011). Because of the distorting effect of hindsight in reconstructing the circumstances of trial counsel’s challenged conduct, t o establish deficient performance a petitioner must overcome “a strong presumption that trial counsel was competent and that t rial tactics were based on sound legal strategy.” State v. Dunlap , 155 Idaho 345, 383

- 84, 313 P.3d 1, 39

- 40 (2013)

. Thus, trial
counsel’s strategic decisions made after a thorough investigation of the relevant law and facts a re virtually unchallengeable. Strickland , 466 U.S. at 690

- 91. However, counsel’s d ecisions made after a less than complete investigation are still reasonable if the limited investigation is supported by reasonable professional judgment. Id. Thus, t rial counsel is p ermitted to deve lop a strategy t hat was reasonable at the time and “balance limited resources in accord with effective trial tactics and strategies.” Dunlap , 155 Idaho at 384, 313 P.3d at 40. There is no requirement that trial counsel must present testimony from an exp ert witness during a criminal trial or else render deficient performance. See State v. Abdullah , 158 Idaho 386, 498

- 99, 348 P.3d 1, 113

- 14 (2015) ( decision of what witnesses to call i s area where we will
not second

- guess counsel without evidence of inadequate preparation, ignorance of relevant law, or other shortcomings c apable of objective evaluation )

. Instead, determinations concerning ineffective assistance of counsel for failure to present expert testimony must be addressed on an
individualized basis. See id. ( C ourt engaged in factual determination of whether trial counsel’s decision not to utilize expert witness was strategic

. ). Here, Diaz has failed to demonstrate that his trial counsel’s decision not to utilize an expert was based on inadeq uate preparation, ignorance of relevant law, or other shortcomings

c apable of objective evaluation. On the contrary, trial counsel testified that , after ext ensive preparation and consideration of the most effective and compelling way to present Diaz’s6 def ense, he believed the use of an expert would detract from Diaz’s strongest evidence, confuse the jury, and be unnecessary after an effective cross examination of the State’s experts. Additionally, Diaz’s c o unsel testified that based upon the evidence the State would likely present during trial, he believed having an expert testify for the defense would be unnecessary
because the evidence was either not in dispu te or the defense had other ways to challenge it . Fo r example, a lthough citizen witnesses reported that Diaz was driving erratically, the video
evidence showed Diaz appeared sober at the time of the traffic stop . Additionally
, although toxicology reports indicated Diaz had alcohol and at least one depressa nt in his system, Di az testified he consumed alcohol and at least one prescription drug earlier in the day. Therefore, presenting an expert toxicologist to argue about the results of Diaz’s urinalysis would not
contradict or affect Diaz’s own testimony

. F inally
, the defense did not need an expert to present
evidence that Diaz was not impaired by alcohol or cannabis because the State’ s evidence supported this conclusion; Diaz’s breathalyzer test indicated his blood alcohol content was below the legal limit and a toxicologist for the State reported that he did not believe Diaz was impaired by cannabis while driving. Therefore, because trial counsel testified that he made a decision not
to consult with or retain an expert based upon his tactical assessment o f the case and belief that an expert would be unnecessary , the district court’s finding that counsel made an intentional and strategic decision not to consult with an expert is supported by evidence in the record and will
not be disturbed. On appeal, D iaz did not establish this strategic decision was outside the wide range of reasonable, professional assistance that is sound trial strategy. Counsel testified that he could
have utilized an expert for Diaz’s defense but he made a reasonable, strategic decision not to. H e feared it would ultimately detract from the best evidence the defense had

. Further, he believed it to be unnecessary because, in light if Diaz’s admission to consuming alcohol and at least one prescription drug earlier in the day, the State’s theory rested more upon Diaz’s reported erratic driving pattern than it did upon a detailed examination of the toxicology reports. Instead of calling an expert to testify, Diaz’s counsel believed the reports of Diaz’s erratic driving could be more efficiently addressed through use of the video evidence. Because strategic decisions based
on a reasonable asse ssment and knowledge of the law are unreviewable, Diaz cannot establish deficient performance of his trial counse l as required for a successful ineffective assistance of
counsel claim.7 IV.
CONCLUSION Diaz did not present evidence that his trial counsel’s strategic decision not to utilize an expert was the pr oduct of inadequate preparation, ignorance of the relevan t law, or other shortcomings capable of objective evaluation. Therefore, Diaz did not e s tablish deficient performance. Accordingly, the district court did not err in finding Diaz failed to establish an
ineffecti ve assistance of couns el claim
, and t he jud gment dismissing Diaz’s petition for post

conviction relief is affirmed. Judge GRATTON and Judge BRAILSFORD CONCUR

.