Opinion
Court of Appeals No. A-8853.
August 16, 2006.
Appeal from the Superior Court, Third Judicial District, Kenai, Harold M. Brown, Judge. Trial Court No. 3KN-99-296 CI.
Dan S. Bair, Assistant Public Advocate, and Joshua Fink, Public Advocate, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Edward L. Britton of first-degree sexual assault and first-degree sexual abuse of a minor. We affirmed Britton's conviction on direct appeal.
AS 11.41.410(a)(1) AS 11.41.434(a)(1), respectively.
See Britton v. State, Alaska App. Memorandum Opinion and Judgment No. 3964 (Jan. 13, 1999), 1999 WL 11173.
Britton filed an application for post-conviction relief, claiming that he had received ineffective assistance of counsel. Superior Court Judge Harold M. Brown heard the evidence presented at a hearing on Britton's application. Judge Brown concluded that Britton was not entitled to relief and denied his application. Because Judge Brown did not err, we affirm.
Background facts and proceedings
In June 1993, J.B., who was then twelve years old, visited Alaska with her father. While staying near Kasilof, J.B. visited Britton's horseback riding operation. Britton allowed J.B. to ride the horses for free in exchange for her help around the horse camp.
On June 7, 1993, shortly before J.B. was scheduled to leave the state, J.B. asked her father if she could spend the night with Britton and his wife, Maria. J.B.'s father agreed. That night, Maria took J.B. to play bingo. When they returned to the horse camp around midnight, Britton was already in the tent. Maria told J.B. to go in the tent and change her clothes. Maria assured J.B. that Britton would be asleep. But when J.B. started to undress, Britton grabbed J.B., pinned her to the ground, and engaged in sexual intercourse with her.
When Britton finished, J.B. left the tent and slept next to one of the horses. The next morning, both Brittons instructed J.B. not to tell anyone about what had happened. When J.B.'s father arrived, he found J.B. looking disheveled and acting quieter than usual. The next day, J.B.'s family departed for California and never returned to the Brittons's horse camp.
In November 1994, J.B.'s father admitted her to a psychiatric hospital for observation. While there, J.B. told Dr. Purshotam Kataria and Nurse Dan Massey that Britton sexually assaulted her while she was in Alaska. Massey contacted the authorities to report the alleged assault.
Trooper Ron Belden, the Alaska State Trooper assigned to investigate the assault, interviewed Massey about Massey's conversations with J.B. Trooper Belden also contacted Wyatt McElvain, a police officer in California, and asked him to interview J.B. on Beldon's behalf.
Following the investigation, Britton and his wife Maria were each charged with one count of first-degree sexual abuse of a minor and one count of first-degree sexual assault. Maria reached a plea agreement with the State that called for her to plead no contest to a misdemeanor and receive a 90-day jail sentence with all but time served suspended, in exchange for her testimony against Britton.
Included in the discovery obtained by Britton's lawyer were copies of the notes and reports that described J.B.'s out-of-court statements about the assault. Britton's attorney filed a motion in limine stating, in part, that Britton intended to use records from the medical facility where J.B. was treated to impeach J.B. with inconsistent statements.
Dr. Kataria wrote in a report at the medical facility that J.B. "reported having sex two years ago with some guy who was 29 years old at the time in Alaska and reported that she was forced to have sex with him and stated that her parents do not know about it and reported that she spent a night with this guy in his house and he told her that he will pay her not to tell anybody."
According to Trooper Belden's report, Massey told him that J.B. said "the fondling began in the car while Eddie's wife was present;" Britton warned J.B. that a lot of people get lost in the woods and are eaten by bears; and J.B. knew another girl who was sexually assaulted by Britton and may have received up to $200 for the sex act.
Finally, Officers McElvain described his interview with J.B. in a police report. According to the report, J.B. said that she and Maria returned from bingo at about 11 p.m., and Maria went into the tent to talk to Britton before sending J.B. in to go to bed. When J.B. entered the tent, Britton was under a sleeping bag on one side of the tent, and J.B. went and laid down on a mattress on the opposite side of the tent with all of her clothing on. Less than a minute later, Britton grabbed J.B., rolled her over onto her back, and tried to pull J.B.'s pants down. When Britton could not get J.B.'s pants down, he pulled her top and bra up and fondled her breasts. When J.B. became fatigued and gave up, Britton pulled J.B.'s pants to her ankles and engaged in intercourse with her. The next morning, Maria told J.B. not to say anything and offered to give her $200, a horse, and a three-wheeler if she kept quiet. J.B. also said she knew another girl who had been raped by the Brittons and who told J.B. that Maria would trick young girls into staying with her and her husband so Britton could have sex with them.
Britton's attorney sought to secure the attendance of the out-of-state witnesses, Dr. Kataria, Massey, and McElvain. The attorney was not able to reach Massey and McElvain by telephone. There is no indication that Massey and McElvain were served with a subpoena. Dr. Kataria was served with a subpoena in November 1996. Dr. Kataria complained to the attorney about the inconvenience of the in-court proceeding for the service of the subpoena. According to the attorney, Dr. Kataria declined to discuss J.B.'s case and wanted compensation for his time away from work.
See AS 12.50.010-080.
At trial, Britton's attorney asked J.B. to explain her purported statements to Dr. Kataria, Massey, and McElvain. In response, J.B. denied making these statements. She asserted that, if these people attributed these statements to her, they must have misunderstood what she told them.
Britton's attorney did not present the out-of-state witnesses. She did present the testimony of an expert witness, Dr. David Raskin, a psychologist with expertise in human learning and memory.
Britton's attorney intended to have Dr. Raskin express his view of the significance of J.B.'s inconsistent statements to Dr. Kataria, Massey, and McElvain. Based on Dr. Kataria's, Massey's, and McElvains's reports of their conversations with J.B., as well as J.B.'s testimony to the grand jury, Dr. Raskin identified four inconsistent statements that he considered significant variations in J.B.'s report of the sexual assault. Dr. Raskin was prepared to testify that, because of these purported inconsistencies, J.B.'s testimony should be distrusted.
Before trial, the State filed an in limine motion asking the superior court to prevent Dr. Raskin from testifying about any of J.B.'s purported inconsistent statements unless evidence was introduced that she actually made those statements. Britton's attorney responded that Dr. Raskin himself should be able to testify about the purported inconsistent statements, first, because the statements were not being introduced to prove the truth of the matters asserted, and second, because these statements may have been prior inconsistent statements.
See A.R.E. 703(b).
Judge Brown ultimately ruled that Dr. Raskin would not be allowed to testify that J.B. had in fact made the purported inconsistent statements. Judge Brown did allow Dr. Raskin to testify that, theoretically, if a witness had made statements that contained such inconsistencies, this would be a reason to distrust the witness's testimony.
Britton's attorney also tried to introduce Massey's and McElvain's information regarding J.B.'s purported inconsistent statements by calling Trooper Belden and asking him to testify about his conversations with Massey and McElvain. Once again, Britton's attorney argued that Trooper Belden's testimony was not hearsay because it was not offered as proof of the matter asserted. But Judge Brown ruled that Belden could not be questioned about his conversations with Massey and McElvain unless the defense introduced direct evidence that J.B. had in fact made the statements attributed to her.
The jury convicted Britton of first-degree sexual abuse of a minor and first-degree sexual assault. Judge Brown sentenced Britton to two concurrent 8-year presumptive sentences.
Shortly after the verdict, Britton's attorney filed a motion for a new trial, claiming that she provided ineffective assistance because she failed to object to Britton's wife's testimony on the basis of marital communications privilege. This court found that Britton's attorney was not ineffective on this ground.
Britton filed a pro se application for post-conviction relief, arguing that his trial attorney was ineffective for failing to call the three out-of-state witnesses. In October 1999, Britton's appointed attorney filed an amended application, including an affidavit from Britton's trial attorney. In her affidavit, Britton's trial counsel stated that she "made a significant effort to secure subpoenas" for the three potential California witnesses. She also tried to contact these witnesses before trial but only succeeded in speaking with Dr. Kataria. She could not recall having a tactical reason for not interviewing Massey or McElvain or for failing to bring the witnesses to trial. The attorney speculated that she felt compelled to proceed without the out-of-state witnesses because of her hectic trial schedule. She also suggested that she may have believed that she could introduce J.B.'s out-of-court statements through Dr. Raskin.
At an evidentiary hearing, Britton presented two witnesses, Britton's trial attorney and James McComas, a lawyer retained by Britton as an expert witness. Britton's lawyer testified that she had identified inconsistencies between J.B.'s grand jury testimony and J.B.'s statements to the three California witnesses. She devoted a significant amount of time and effort to securing interstate subpoenas for the out-of-state witnesses, but only Dr. Kataria was subpoenaed. She could not think of any tactical reason for not having the witnesses at trial or failing to interview them before trial. In retrospect, she thought she might have chosen not to bring the witnesses to Alaska because it would have caused a delay, it would have been expensive, and she thought Britton's case was defensible without them. Although she conceded that not being able to reach a witness before trial could be a tactical reason for not calling a witness, she did not remember having made that decision in this case.
McComas testified that trial counsel was ineffective for failing to call the impeachment witnesses to prove the inconsistent out-of-court statements after J.B. denied making them. McComas also testified that, in his opinion, counsel's failure to call the impeachment witnesses was detrimental to the defense.
Judge Brown denied Britton's application for post-conviction relief. He reasoned that, "where percipient witnesses are only entitled to airfare and witness fees, it was not at all surprising that Defendant's counsel opted for a more practical alternative. She made a conscious choice not to dedicate limited resources to the time and effort to subpoena, transport and babysit out-of-state witnesses who would not appear voluntarily and who would not or did not confirm in advance that their testimony would be all that helpful." Judge Brown ruled that Britton's attorney had made a tactical decision not to bring the witnesses to trial because "she was not sure what they would say; the expense in terms of time and money was significant[;] and she had what she thought was a strong case for the defense." He concluded that Britton's attorney had "performed at least as well as a lawyer with ordinary skill and training in the criminal law." Because Judge Brown found that trial counsel's performance was not deficient, he did not address the prejudice prong of the test.
Discussion
In Risher v. State, the Alaska Supreme Court adopted a two-prong test for evaluating claims of ineffective assistance of counsel. First, a defendant must show that their trial attorney's performance fell below the "range of competence displayed by one of ordinary training and skill in the criminal law." Second, a defendant must show that this lack of competency had an adverse impact on the case that contributed to their conviction. A defendant seeking post-conviction relief has the burden of proving the facts underlying the claim by clear and convincing evidence. This includes the burden of rebutting the strong presumption that the trial attorney's actions stemmed from "sound tactical considerations."
523 P.2d 421 (Alaska 1974).
Id. at 424-25.
Id. at 424.
Id. at 424-25.
AS 12.72.040; Alaska R. Crim. P. 35.1(g).
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
Britton argues that Judge Brown erred when he found that Britton's trial attorney performed competently. In particular, he argues that his attorney's failure to bring the impeachment witnesses to trial was not motivated by tactical considerations, and if it was, it was unreasonable.
The constitutional guarantee of effective assistance of counsel does not require error-free representation. Instead, the standard for ineffective representation is one of minimal competence.
See id. at 568.
See id. at 568 (citing Coleman v. State, 621 P.2d 869, 879 (Alaska 1980)).
Britton claims that Judge Brown's finding that counsel believed Britton's case was strong was clearly erroneous. He argues that the attorney's actions during trial demonstrate that she "was highly aware of the weak aspects of [Britton's] case" and "recognized the serious need to impeach J.B." In particular, Britton points out that the attorney knew that the California witnesses might "provide significant impeachment statements from their reports," that the attorney retained Dr. Raskin to provide an opinion on the importance of the inconsistencies, that the attorney tried to contact McElvain and Massey several times, that the attorney obtained interstate certificates for all three out-of-state witnesses (Dr. Kataria was served), and that the attorney offered the hearsay evidence during trial.
But, as the State points out, the testimony from Britton's trial attorney supports Judge Brown's finding that, at the time of trial, the trial attorney believed Britton's case was strong even without the impeachment witnesses. The trial attorney testified at the evidentiary hearing that she thought the case was "very defensible" because there was no physical evidence, J.B. did not report the assault for a very long time, J.B. was a "troubled child," and Britton insisted he was innocent. The attorney said, in retrospect, that she was probably over-confident about Britton's trial prospects. Still, there is sufficient evidence in the record to uphold Judge Brown's finding.
Britton further argues that Judge Brown's finding that Britton's trial counsel made a tactical decision not to call the California witnesses because she was concerned about what they might say was clearly erroneous because it is not supported by trial counsel's testimony.
At the evidentiary hearing, the State sought to establish that Britton's attorney made a tactical decision not to call the witnesses because she was not sure what they would say on the stand. Although the attorney acknowledged that this might be a tactical reason for not calling a particular witness, she did not testify that this was her reason for failing to call the impeachment witnesses in this case. The attorney could not recall why she failed to call the out-of-state witnesses, but she did not believe she was concerned about what they would say on the stand. Instead, the attorney said she would not be deterred from calling a witness who had written a report or taken contemporaneous notes on the issue in question.
Britton argues that Judge Brown's finding is contrary to the trial attorney's unrebutted testimony. But as our supreme court pointed out in Dolchok v. State, a defense attorney's self-critical evaluation of her own performance may be more a reflection of the attorney's dedication to representing the client, and remorse at a disappointing result, than it is an objective assessment of her representation. Judge Brown was not compelled to accept the attorney's testimony but was authorized to consider the testimony in light of the history of the case and the other evidence presented. Viewing the record in the case, we are unable to say that Judge Brown's finding on the issue is clearly erroneous.
639 P.2d 277 (Alaska 1982).
Id. at 294-95.
Next, Britton argues that Judge Brown committed clear error when he found that trial counsel chose not to bring the witnesses to Alaska, in part, because the cost in time and money would be significant. He points out that the trial attorney did not testify that she declined to bring the witnesses to Alaska because of time and money issues or that the Office of Public Advocacy refused to provide funds to transport the witnesses. He further argues that there is no evidence that the cost of transporting the witnesses to Alaska was prohibitive.
See AS 12.50.020(b).
But Britton has the burden of rebutting the presumption that his attorney's actions were motivated by sound tactical considerations. And to rebut this presumption, Britton must rule out plausible explanations for his attorney's actions.
See Jones, 759 P.2d at 569.
See Parker v. State, 779 P.2d 1245, 1251 (Alaska App. 1989).
In this case, Britton's attorney testified that she may have decided not to call the witnesses because it would have been difficult to fund their travel to Alaska and because she felt pressured to try Britton's case as scheduled. Judge Brown heard her testimony and was able to analyze it in light of the record. Our review of the record confirms that there is substantial evidence and inferences from the evidence supporting Judge Brown's finding.
Britton also contends that the trial attorney's choice was unreasonable because the attorney could have admitted the various reports through records custodians. But the admissibility of the medical records is not above dispute. While the documents may contain information that satisfies the business records exception in Evidence Rule 803(6), any statements attributed to J.B. that are included in Dr. Kataria's report and Massey's report and contain the inconsistencies that Britton wished to point out go beyond statements that are admissible under Alaska Evidence Rule 803(4), the hearsay exception for statements made for medical diagnosis or treatment. J.B. identified her assailant, the location of the assault, and other information that was not necessary for her medical treatment.
See Sluka v. State, 717 P.2d 394, 398-99 (Alaska App. 1986).
Nor can the police report be admitted under the exception for public records provided in A.R.E. 803(8). Alaska Evidence Rule 803(8)(b)(i) specifies that "investigative reports by police" are not within the public-records exception to the hearsay rule. Britton maintains that the limitation on the admissibility of police reports generally bars the State from admitting a police report but not a defendant. But Britton does not provide authority for this position, and the argument is not supported by the commentary to the evidence rules, which states clearly that investigative police reports are excluded "because they are often unreliable."
Commentary to A.R.E. 803(8), second paragraph.
Regardless, Britton contends that J.B.'s statements at the medical facility would come in as a first complaint of sexual assault. But the first complaint exception does not allow a detailed description of the victim's allegations; instead, the exception permits evidence of the fact of a complaint and the circumstances under which it is made. Thus, the first complaint doctrine would not have permitted Britton to admit the portions of the reports that contained the identified inconsistent statements.
See Greenway v. State, 626 P.2d 1060, 1060-61 (Alaska 1980).
See Thompson v. State, 769 P.2d 997, 1001 (Alaska App. 1989).
In sum, the factual findings that Judge Brown relied on to deny the application for post-conviction relief are not clearly erroneous. We conclude that Judge Brown did not err when he denied Britton's application.
Conclusion
The judgment of the superior court is AFFIRMED.
I write separately to address the underlying questions of evidence law presented in this litigation.
When Britton's trial attorney attempted to have Dr. Raskin and Trooper Belden testify about the statements that J.B. purportedly made to the three witnesses in California, she faced an obvious hearsay problem.
At the time, Britton's attorney relied on two rationales for presenting this hearsay. First, she argued that because Dr. Raskin was presenting expert testimony, he could testify about the hearsay statements under Evidence Rule 703. Britton now concedes that this argument is meritless. See, for instance, the Alaska Supreme Court's decision in Estate of Arrowhead, 894 P.2d 642, 647-48 (Alaska 1995).
Britton's attorney also argued that there was no hearsay problem because she was not attempting to introduce the statements for the truth of what J.B. said in these statements, but rather to suggest that J.B. was not being truthful. But as Judge Brown correctly recognized, this was only a partial answer to Britton's hearsay dilemma — because Britton was still obliged to prove that the statements in question had actually been made.
On this issue — the issue of whether J.B. ever made the statements in question — Britton was attempting to introduce the out-of-court statements of Dr. Kataria, Nurse Massey, and Officer McElvain for the truth of the matter asserted: the assertion that J.B. had in fact made these purported statements in California. After the State raised a hearsay objection, Britton could not prove the making of these statements by relying on hearsay testimony. In other words, Britton's attorney could not prove this point by having Dr. Raskin or Trooper Belden testify, "Officer McElvain (or Doctor Kataria or Nurse Massey) says that J.B. made the following statement."
In the post-conviction litigation, Britton's new attorney argued that even if the three California witnesses were not available to testify, J.B.'s statements to Dr. Kataria and Nurse Massey could have been admitted if only the defense attorney had arranged to have the hospital records custodian come to Alaska to certify the notes that Kataria and Massey made of their conversations with J.B. That is, Britton's post-conviction relief attorney argued that Dr. Kataria's and Nurse Massey's notes of their conversations with J.B. would have been admissible under Alaska Evidence Rule 803(4) — the hearsay exception for statements made for purposes of medical diagnosis and treatment.
The problem with this theory is that the particular statements that Britton wanted to introduce were the statements in which J.B. purportedly described the details of the sexual assault — in particular, Maria Britton's statements to J.B. both preceding and after the assault, Britton's behavior during the assault, and certain other events and conversations surrounding this episode. While the fact that J.B. was sexually assaulted was clearly pertinent to the diagnosis and treatment of whatever mental difficulties she might have been suffering when she was admitted to the hospital in California, it is not clear how J.B.'s description of the particular details of the event was relevant for medical diagnosis or treatment purposes — and this was the part of the hospital notes that Britton wanted to introduce.
See Sluka v. State, 717 P.2d 394, 398-99 (Alaska App. 1986). See also Williams v. Utility Equipment, Inc., 837 P.2d 1112, 1116 (Alaska 1992) (indicating that the portion of a patient's statement which "fix[es] fault or identif[ies] an assailant" does not fall within the hearsay exception codified in Evidence Rule 803(4)).
In Britton's appeal, this issue is raised in the context of a petition for post-conviction relief alleging the incompetence of Britton's trial attorney. Thus, the precise question presented is whether all competent defense attorneys would have known that this portion of Kataria's and Massey's hospital notes would be admissible under Evidence Rule 803(4). As I have just explained, it seems most likely that the disputed evidence was not admissible under Rule 803(4). Thus, Britton has failed to show that his trial attorney acted incompetently.
In a similar vein, Britton argues that because Trooper Belden interviewed Nurse Massey and Officer McElvain, and because J.B.'s purported statements to Massey and McElvain were included in Trooper Belden's report, these statements were admissible under Alaska Evidence Rule 803(6) — the hearsay exception for business records. Britton concedes that police reports are normally deemed to fall outside the business records exception, but he argues that this rule only applies when the government wants to rely on police reports, not when a defendant wants to rely on them.
This argument is rebutted by the Commentary to Alaska Evidence Rule 803(6). The Commentary explains that police reports and similar records are excluded from this hearsay exception, not from a desire to restrict the government's sources of proof at criminal trials, but rather because the source of the information in police reports does not carry the guarantees of trustworthiness that characterize normal business records.
As explained in the Commentary, the rationale of the business records exception is that these records can be trusted to be accurate because of "systematic checking, [the] regularity and continuity which produce habits of precision, [the] actual experience of [the] business in relying on them, or . . . [the] duty to make an accurate record as part of a continuing job or occupation". Commentary to Evidence Rule 803(6), second paragraph.
Normally, the person who actually observes the underlying data or events memorialized in a business record is "acting routinely, under a duty of accuracy, with employer reliance on the result". Commentary to Evidence Rule 803(6), third paragraph. That is, the trustworthiness of the record is assured because a similar business duty of accuracy motivates both the person whose job it is to make or keep the business record and the person who initially takes note of or reports the underlying events (so that these events can be memorialized in the records of the business). In other words, the people who have first-hand knowledge of the information recorded in business records — the people who personally observed the data or the events — are under a business duty to get it right.
As the Commentary to Evidence Rule 803(6) explains, the problem with police reports is that, although the officer making the report has a business duty to accurately report what other people say about the matter under investigation, the people who are supplying this information to the officer have no similar duty to be accurate or honest. This, according to the Commentary, is the crucial difference between a police report and the types of business records that are admissible under Evidence Rule 803(6):
If . . . the supplier of the information does not act in the regular course [of business], an essential link is broken; the assurance of accuracy [that presumedly applies to the recorder of the information] does not extend to the information itself, and the fact that [this information] may be recorded with scrupulous accuracy is of no avail. An illustration [of this principle] is the police report incorporating information obtained from a bystander: the officer qualifies as acting in the regular course [of business], but the [bystander] does not.
Commentary to Alaska Evidence Rule 803(6), third paragraph (emphasis added).
Thus, Britton is wrong when he asserts that a different rule applies when a criminal defendant (as opposed to the government) offers a police report under the business records exception. Accordingly, he has failed to show that his trial attorney was incompetent for failing to advance this argument.
(I note that police agencies, in addition to preparing investigative reports, also maintain various records that memorialize the internal operation of their agencies. These records can qualify for admission under the business records exception. See, e.g., Wilson v. State, 756 P.2d 307, 312-13 (Alaska App. 1988).)