Wednesday, March 10, 2010

Prosecutor defends Santistevan conviction

Thomas says defendant got a fair trial in 2004

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By TERRY SMITH
Express Staff Writer

David L. Santistevan

Blaine County Prosecuting Attorney Jim Thomas filed documents last week in 5th District Court rebutting claims by David Leroy Santistevan that he did not receive a fair trial in 2004 when convicted by a jury of two counts of attempted murder for shooting two Bellevue teenagers.

The documents were in response to claims made by Hailey attorney Cheri Hicks, who was appointed by the court to represent Santistevan in his bid for acquittal or a new trial.

In an amended petition for post-conviction relief filed Jan. 12, Hicks made an allegation of "prosecutorial misconduct," claiming the shooting victims committed perjury during the trial. Hicks claimed victim Tyrel Peak made statements contrary to prior police reports.

"This is patently false," Thomas wrote in his response. "There is no evidence that either witness lied or testified in a false manner. Clearly in a case such as this where an extraordinary amount of violence in a short time span occurred, witness's memories can be at times vague, inconsistent or even factually incorrect. These inconsistencies do not amount to perjury."

Santistevan, now 52, is serving a 35-year prison sentence and is not eligible for parole until 2026. He was convicted by a Blaine County jury in December 2004 of two counts of attempted second-degree murder and one count of use of a firearm in commission of a crime for shooting teenagers Peak and John Marshall Hooten with a 9mm handgun on March 29, 2004, in an alley behind the Silver Dollar Saloon in Bellevue.

Santistevan, represented at trial by Hailey attorneys Keith Roark and Douglas Nelson, claimed he'd had previous hostile encounters with the teens and that he shot them in self-defense.

Thomas also rebutted a claim by Hicks that Roark and Nelson were ineffective as legal counsel because they allowed impaneling of a juror who made a "clear statement that she was biased against the defendant."

Thomas wrote that the juror "initially stated that she could not act with impartiality" but later said she "probably could render a verdict solely on the evidence." Thomas wrote that on later questioning by Roark, the juror "unequivocally states she can be fair and impartial."

Thomas further rebutted a claim by Hicks that Santistevan was "illegally prosecuted" in violation of both federal and state statutes because the prosecution did not disprove Santistevan's claim of self-defense.

"The jury was free to reject his account and instead give consideration to evidence pointing to his use of a gun in a manner constituting attempted second-degree murder," Thomas wrote. "There was sufficient evidence to uphold the guilty verdicts in this case."

Thomas also rebutted Hicks' claim that Santistevan's trial attorneys failed to address numerous legal issues when his convictions and sentence were appealed to the Idaho Court of Appeals.

"Appellate counsel is not required to raise every conceivable issue on appeal, but is rather required only to make a conscientious examination of the case and file a brief in support of the best arguments to be made," Thomas wrote.

Thomas also wrote in the newly filed documents that Santistevan's latest claims were filed beyond the legal deadline.

Santistevan is seeking acquittal or a new trial through a post-conviction relief petition that he filed on his own on Oct. 23, 2007.

Thomas wrote that all of Santistevan's claims, including those made by Hicks in January, needed to be submitted to the court by March 22, 2008, one year after the Idaho Court of Appeals rejected overturning his sentence.

Terry Smith: tsmith@mtexpress.com

Motion to dismiss

Following a three-hour court hearing Tuesday in Blaine County 5th District Court, Judge Robert J. Elgee took under advisement a motion to dismiss David L. Santistevan's request for acquittal or a new trial. The motion was filed by Blaine County Prosecuting Attorney Jim Thomas, who contends that Santistevan's claims of an unfair trial in 2004 are without merit. It was not known when Elgee will release his decision on Thomas' motion.