An attorney for David Leroy Santistevan alleges that her client did not receive a fair trial in 2004 when he was convicted of two counts of attempted murder for shooting two Bellevue teenagers.
Hailey attorney Cheri Hicks claims in a document filed in Blaine County 5th District Court that during the trial, Santistevan had ineffective legal counsel, that the Blaine County Prosecuting Attorney's Office engaged in prosecutorial misconduct, that one witness committed perjury and that a biased juror was allowed to be impaneled to consider the case.
The new document, an amended petition for post-conviction relief, was filed on Jan. 12 on behalf of Santistevan in his attempt to have his convictions overturned or to be granted a new trial.
Hicks alleges in the document that Santistevan's self-defense claim was not properly considered by the court, the jury or defense counsel and that his attorneys did not properly handle his appeal process.
Santistevan, now 52, is serving a 35-year prison sentence at the Idaho State Correctional Institution in Boise. According to Idaho Department of Correction records, he is not eligible for parole until March 30, 2026.
Santistevan 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 the commission of a crime for shooting teenagers John Marshall Hooten and Tyrel Peak 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 that he'd had previous hostile encounters with Hooten and Peak and that he shot them in self-defense.
Sentence was pronounced in April 2005 by 5th District Court Judge Robert J. Elgee.
Nelson, on behalf of Santistevan, appealed both the convictions and the sentence to the Idaho Court of Appeals. The court upheld the convictions in October 2006 and upheld the sentence in March 2007.
Santistevan filed his own petition for post-conviction relief in Blaine County in September 2007. He initially claimed only that he was "denied the effective assistance of counsel on appeal" but asked the court in the petition for appointment of a public defender. That job was assigned to Hicks in February 2009.
Hicks reviewed transcripts from the trial, police records and other relevant documents before filing the amended petition.
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She alleges in the document that the Blaine County Prosecuting Attorney's Office engaged in "prosecutorial misconduct" by "assisting in a witness committing perjury." Hicks claims that prosecutors coached Peak, one of the shooting victims, into providing testimony during trial that was "contrary to prior police reports."
She also alleges that Roark and Nelson were ineffective as legal counsel for not challenging the impaneling of a juror who made a "clear statement that she was biased against the defendant."
Hicks claims that Santistevan's self-defense claim was not proven false by prosecutors and that Santistevan was "illegally prosecuted" in violation of both state and federal self-defense statutes.
"Petitioner [Santistevan] claims that the state has the burden of proving the absence of self-defense and that the prosecution could not prove the absence of self-defense because the defendant/petitioner was able to prove at trial that he did act in self-defense," Hicks wrote in the amended petition.
Hicks also claims that Santistevan's trial attorneys did not address the self-defense claim, the allegation of prosecutorial misconduct or numerous other legal issues when the convictions were appealed. She further alleges that the attorneys failed to petition the Idaho Supreme Court for review of the Idaho Court of Appeals decision wherein that affirmed the conviction.
Hicks concludes in the document that Santistevan's constitutional rights were violated, that a "large number" of errors were committed in the prosecution of her client and that it is likely that Santistevan did not receive a fair trial.
Blaine County Prosecuting Attorney Jim Thomas has filed a motion to dismiss Santistevan's claims. A hearing on the motion is scheduled for March 9 before Judge Elgee.
Thomas could not be reached for comment regarding the amended petition.
"I encouraged David to do this," Nelson said Thursday. "The last thing I told David to do was to file a petition for post-conviction relief after the appeals process was exhausted.
"I have always encouraged my clients to get a second opinion. What they're trying to do here is to get Judge Elgee to render an opinion. If there's something we did incorrectly, the judge will rule on that, but I think that's unlikely.
"My opinion, was, is and remains that the sentence David got was excessive. Since I handled that case, I've handled several homicides where the defendant got a lesser sentence. I hope Cheri can get something done to get David a better deal."
Terry Smith: tsmith@mtexpress.com
David Santistevan, who is serving a 35-year prison sentence, wants his 2004 attempted murder convictions overturned
