Opinion
Court of Appeals No. A-11344 Trial Court No. 3AN-10-8702 CI No. 5985
11-20-2013
TRISTAN CURRY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Wallace Tetlow, Tetlow Christie, LLC, Anchorage, and Andrew Steiner, Bend, Oregon, for the Appellant. Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, John Suddock, Judge.
Appearances: Wallace Tetlow, Tetlow Christie, LLC, Anchorage, and Andrew Steiner, Bend, Oregon, for the Appellant. Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
COATS, Senior Judge.
Tristan Curry was convicted of nine counts of sexual abuse of a minor in the second degree. On appeal, we affirmed Curry's convictions. Curry filed an application for post-conviction relief, claiming that his trial attorney was ineffective. The superior court denied Curry's application. Curry appeals. We affirm.
AS 11.41.436(a)(5)(B).
Curry v. State, Mem. Op. & J. No. 5482, 2009 WL 1424452 (Alaska App. May 20, 2009).
Tristan Curry and his then-wife Jodi Curry provided care for children of parents who worked at night. The Currys cared for As.L. from 1996 or 1997 to June 2005 — from age 5 or so until she was 13. They also cared for her older sister, Am.L., from age 6 or so until she was 15. And they cared for another girl, C.W., in the fall of 1998, when she was 8 years old.
In 1998, C.W. reported to her mother that Curry had "humped" her the previous evening. This matter was reported to the police, who conducted a videotaped interview of C.W. But when Curry's wife, Jodi, was questioned by the police, she explained that her 5-year-old son had been sleeping next to C.W., that the boy had probably snuggled next to C.W., and that this was probably the cause of C.W.'s report. In other words, C.W. was simply mistaken about what had happened. The police concluded that the case was not strong enough to merit prosecution.
Six years later, in June 2005, the father of As.L. and Am.L. reported to the police that As.L. had just reported to him that Curry had been sexually assaulting her frequently over an 8-year time period. As.L., now 13, alleged that Curry had been touching her breasts, genitals, and buttocks, under and over her clothing, starting in 1998. Her sister, Am.L., stated that she, herself, had not been abused. But she stated that she had repeatedly heard As.L. demanding to be left alone. The police then went back to C.W., who was now 15 years old, and asked her about her abuse by Curry in 1998. C.W. repeated her earlier allegations.
The police telephoned Curry and confronted him with the accusations. Curry initially denied any wrongdoing, but two days later he telephoned the police and informed a detective that there was "some truth" to As.L.'s accusations. He told the detective that he would come in that same afternoon to talk with the police. But he did not appear.
A grand jury indicted Curry on eight counts of sexual abuse in the second degree of As.L. — one count for each calendar year from 1998 through 2005. The grand jury also charged Curry with one count of sexual abuse of a minor for abusing C.W. in 1998.
At trial, Curry's defense to the charge involving C.W. was the same one that his wife presented to the police in 1999: that the Currys' young son had been sleeping next to C.W., and that C.W. had mistaken the boy's nighttime snuggling for improper sexual touching by Curry. With respect to the charges involving As.L., the defense attorney argued that As.L. and her sister Am.L. were lying about the abuse. The defense attorney pointed out that the two girls had been in the care of Curry and his wife for years — and that, during these years, the girls cheerfully returned again and again to the Currys' house and behaved like happy members of the Curry family.
The jury rejected these defenses and convicted Curry of all the charges. After Curry's convictions were affirmed on appeal, he filed an application for post-conviction relief, arguing that his trial attorney provided ineffective assistance of counsel.
Superior Court Judge John Suddock conducted an evidentiary hearing. Curry's trial attorney testified at the hearing and conceded that he had been ineffective in representing Curry. Another attorney, who was presented by Curry as an expert witness on criminal defense, also testified that Curry's trial attorney had been ineffective. But, Judge Suddock concluded that Curry had failed to establish that he had received ineffective assistance of counsel, and the judge therefore denied Curry's application for post-conviction relief.
In his written decision, Judge Suddock acknowledged that Curry had presented a plausible alternative way in which his case might have been defended. But Judge Suddock also explained in great detail why he concluded that this alternative defense strategy was not markedly superior to the one that Curry's trial attorney pursued. The judge noted that the three girls had been very strong witnesses and that, taken as a whole, the State's case was "overwhelming." The judge further noted that Curry's proposed alternative defense hinged on the jury's viewing important contested facts in the light most favorable to Curry, and on the jury's willingness to draw inferences from the evidence in the manner most favorable to Curry's claim of innocence. And the judge concluded that even if Curry's attorney had pursued this proposed alternative defense, the State's evidence would have been essentially the same. Based on all this, Judge Suddock concluded that Curry had failed to prove that his trial attorney was incompetent.
When a defendant raises a claim of ineffective assistance of counsel, the defendant must prove that their attorney did not perform as well as a lawyer with ordinary training and skill in the criminal law. There is a presumption that a lawyer has acted competently and that he acted (or failed to act) for good and sufficient tactical reasons. A lawyer's tactical decisions will be deemed competent unless the lawyer's tactic is shown to be unreasonable — "a tactic that no reasonably competent attorney would have adopted under the circumstances." And even when a defendant has shown that the trial attorney failed to act competently in one or more respects, the defendant must also demonstrate that there is a reasonable possibility that the attorney's lapses affected the verdict.
State v. Jones, 759 P.2d 558, 569-70 (Alaska App. 1988).
Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
On appeal, in determining whether an attorney has rendered ineffective assistance of counsel, we defer to the trial court's findings on factual issues unless those findings are clearly erroneous. In particular, where the application for post-conviction relief has actually gone to trial, and the court has heard the witnesses testify, we defer to the court's assessment of the credibility and weight of that testimony.
Moreover, when (as in this case) the judge who hears the post-conviction relief application is the same judge who presided over the underlying criminal trial, we defer to the judge's factual observations of how that underlying trial was conducted — e.g., the tenor of the evidence, how the witnesses presented themselves to the jury, and how the trial attorneys litigated the case.
But with respect to the ultimate question of whether, given the facts, the trial attorney's handling of the litigation was incompetent in one or more respects, we do not defer to the trial court's assessment. Rather, this is a legal question that we decide independently.
Jackson v. State, 750 P.2d 821, 825 (Alaska App.1988).
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We have reviewed the record of this case, and we conclude that the record supports Judge Suddock's findings of fact — specifically, the judge's analysis of the strength of the State's case and his assessment of the potential weaknesses of Curry's proposed alternative defense. Based on those findings, we agree with Judge Suddock that this proposed alternative defense was not markedly superior to the defense that Curry's trial attorney pursued at trial.
We acknowledge that Curry has identified various points in the trial where his defense attorney seemingly showed ineptitude or lack of experience in the handling of procedural and evidentiary matters. But Curry has not shown that there is a reasonable possibility that these lapses affected the jury's verdicts. Curry's primary contention is that his attorney overlooked, or failed to pursue, an alternative and markedly superior defense strategy. And as we have explained, the record does not support this contention.
The judgment of the superior court is AFFIRMED.