Opinion
Court of Appeals No. A-11504 No. 6256
11-25-2015
ANTHONY ARNOLD HAUBE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David E. George, Attorney at Law, Anchorage, for the Appellant. Diane L. Wendlandt, 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. Trial Court No. 1PE-10-60 CI
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Petersburg, William B. Carey, Judge. Appearances: David E. George, Attorney at Law, Anchorage, for the Appellant. Diane L. Wendlandt, 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 Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Anthony Arnold Haube was convicted of second-degree murder, and this Court affirmed his conviction on direct appeal. Haube then filed an application for post-conviction relief, arguing that his trial attorney was ineffective in his use of an expert witness concerning alcohol-related memory issues. He also argued that his trial attorney was ineffective for failing to seek to suppress evidence of five knives that the State introduced at trial. Superior Court Judge William B. Carey dismissed Haube's application, ruling that it failed to state a prima facie claim for relief. On appeal, Haube argues that the trial court erred in dismissing his case. Because Haube failed to state a prima facie case, we affirm the dismissal of his application for post-conviction relief.
Haube v. State, 2010 WL 2871078 (Alaska App. July 21, 2010) (unpublished).
Procedural history
In our prior decision affirming Haube's conviction, we described the evidence presented at Haube's trial. We now summarize the evidence that is relevant to Haube's post-conviction relief claim.
On April 1, 2005, Haube, Thomas Lyons, Thomas Evenson, Tom Hixon, and Michael Gerber were in a Petersburg apartment drinking and playing cards. Gerber was dating Charlene Hixon (Tom Hixon's sister), who had previously dated Haube. Haube had fought with Gerber in the past, and a few days before the murder, Haube told Charlene Hixon that he was going to "shank" Gerber.
At some point during the April 1 gathering, a fight broke out. Tom Hixon testified that Lyons, Evenson, and Haube severely beat Gerber, and that Haube threw Gerber out of a second-story window into an alley. Haube and Lyons left the apartment and returned about fifteen minutes later, covered in blood. The next day, Charlene Hixon found Gerber's body in the alley. He had been cut over seventy times.
Haube, Lyons, and Evenson were indicted for first- and second-degree murder. Lyons entered a plea agreement with the State. Haube and Evenson were tried separately. The State brought Evenson to trial twice, and the juries were unable to reach a verdict. After Haube's trial, Evenson entered a plea agreement with the State and pleaded no contest to second-degree assault.
Lyons and Tom Hixon testified at Haube's trial. Both men stated that they were chronic alcoholics and were drunk at the time of the homicide, and that their memories of the events surrounding the homicide were poor. Haube's trial attorney called Dr. Aron Wolf, a forensic psychiatrist, as an expert witness to explain the effect of alcohol consumption on a person's memory. The jury convicted Haube of second-degree murder. Haube appealed his conviction and sentence, and we affirmed.
Id. at *7.
Haube then filed an application for post-conviction relief. He ultimately raised two main claims of ineffective assistance of counsel. First, he argued that his attorney was ineffective in how he used the testimony of Dr. Wolf to address the inability of various witnesses to recall events surrounding the homicide. Second, he claimed that his attorney was ineffective for failing to seek suppression of the five knives involved in the case. Haube submitted an affidavit from his trial attorney in which the attorney explained the choices he had made.
The State moved to dismiss Haube's post-conviction relief application for failure to state a prima facie case. Over Haube's opposition, Judge Carey granted the State's motion. Judge Carey concluded that Haube had failed to establish a prima facie case that his trial attorney was ineffective.
Haube appeals this dismissal. On appeal, Haube renews his claims that his trial attorney was ineffective in his use of Dr. Wolf as an expert witness and for failing to seek suppression of the five knives involved in the case.
Haube failed to state a prima facie case that his attorney was ineffective in using the expert witness to address alcohol-related memory impairment
To prove a claim of ineffective assistance of counsel, an applicant must show that his trial attorney failed to "perform at least as well as a lawyer with ordinary training and skill in the criminal law." In other words, the applicant must show that his attorney demonstrated "a level of performance that no reasonably competent attorney would provide." The applicant must prove "not that his trial counsel could have done things better, but that no competent attorney would have done things as badly as his trial counsel did." If the applicant meets this first burden, he must then establish "a reasonable doubt that the [attorney's] incompetence contributed to the outcome."
Risher v. State, 523 P.2d 421, 424 (Alaska 1974).
State v. Jones, 759 P.2d 558, 568 (Alaska App. 1988).
Tucker v. State, 892 P.2d 832, 835 (Alaska App. 1995).
Jones, 759 P.2d at 567-68 (quoting Risher, 523 P.2d at 425).
When a trial court dismisses an application for post-conviction relief for failure to state a prima facie case, this Court reviews the trial court's factual findings for an abuse of discretion, but it reviews the trial court's conclusions of law de novo.
Tucker, 892 P.2d at 834.
At trial, the defense called Dr. Wolf as an expert witness. Dr. Wolf testified about the general effects of alcohol consumption on memory. Haube claims that his attorney's decision to call Dr. Wolf appeared to be a last-minute decision, and that his attorney should have applied for a court order authorizing Dr. Wolf to examine three of the State's witnesses — Lyons, Tom Hixon, and Charlene Hixon — so that Dr. Wolf could then offer testimony as to whether these three witnesses were "clinically able to be credible."
Haube asserts that he could have used these mental health examinations to show that these three witnesses were incompetent to testify (thus precluding them from testifying as witnesses at his trial). Alternatively, Haube argues that he could at least have used the mental health examinations to directly attack the credibility of each of the three witnesses, rather than relying on Dr. Wolf's more generalized testimony regarding alcohol-related memory impairment. Haube also claims that if his attorney had properly utilized Dr. Wolf, Dr. Wolf could have provided a means of rebutting the testimony of the expert witness that the State offered on the subject of domestic violence and its potential effects on the relationship between Charlene Hixon and Haube.
In his order dismissing Haube's application, Judge Carey described the three witnesses' relevant testimony, the testimony of Dr. Wolf, and the general evidence corroborating Haube's participation in the homicide. Judge Carey then carefully analyzed Haube's post-conviction relief claim concerning how his attorney should have used Dr. Wolf in preparing and presenting the defense case.
Haube also points out that when his trial was less than sixty days away, his trial attorney had not yet given notice that Dr. Wolf would be called by the defense as an expert witness. According to Haube, this demonstrates that it was "obvious that [his trial attorney] was dilatory, unprepared, and, as a result, his use of Dr. Wolf was ineffectual."
In his order, Judge Carey noted that Criminal Rule 16(c)(4) requires a defendant to give the prosecuting attorney notice of an expert witness at least thirty days prior to trial, unless the court sets a different date. Judge Carey then concluded that when Haube's attorney did not provide the expert notice sixty days prior to trial — double the number of days required by the rule—it did not demonstrate that the attorney acted unreasonably.
On appeal, Haube does not point to any evidence establishing when his trial attorney hired Dr. Wolf or the amount of time the defense attorney spent working with Dr. Wolf in preparation for trial. Haube also does not explain how his trial attorney's failure to disclose Dr. Wolf earlier (i.e., earlier than required) demonstrated a lack of preparation rather than a strategic choice. In particular, Haube does not suggest that no competent attorney would wait until less than sixty days before trial to disclose an expert witness. Thus, the record does not provide any support for Haube's claim that his trial attorney's use of Dr. Wolf, and his trial attorney's failure to disclose Dr. Wolf's testimony earlier, demonstrated incompetence. Haube therefore has failed to state a prima facie case for relief on this issue.
Jones, 759 P.2d at 568-69.
Judge Carey next addressed Haube's contention that if Dr. Wolf had been properly prepared, he could have provided support for a motion to order mental health examinations of three of the State's witnesses. When confronted with Haube's theory of ineffectiveness on this issue, Haube's trial attorney responded that it had not occurred to him to request mental health examinations of the witnesses. The attorney explained that he called Dr. Wolf as a witness to educate the jury about blackouts, "greyouts," and confabulation so the jurors could apply these concepts to the testimony of the witnesses.
Further, Haube's trial attorney offered a tactical reason for not seeking to preclude Lyons' and Tom Hixon's testimony. At trial, Lyons testified that he saw Evenson kneeling over Gerber in the alley, cursing at him, and making an up and down sawing motion with his hand. Haube's trial attorney explained that he would not have wanted Lyons' testimony precluded unless he also was able to successfully preclude Tom Hixon's testimony. Had such a motion to preclude the witnesses been granted in part but not entirely, Haube could have been deprived of the potentially exculpatory testimony suggesting that Evenson killed Gerber.
In his order, Judge Carey concluded that Haube had failed to produce any evidence that every competent attorney would have filed a motion requesting mental health examinations of the three witnesses, that the motion would have been granted, or that Haube was prejudiced by the failure to file the motion.
Haube did not offer any legal or factual basis for concluding that no competent attorney would have failed to seek mental health examinations of the witnesses or that the court would have granted such a motion for compulsory examinations of the witnesses, given the facts of Haube's case. He did not offer any legal or factual basis for concluding that the court would preclude the testimony of the witnesses, or concluding that the expert would be able to offer testimony attacking the credibility of individual witnesses based on mental health examinations. Haube also did not offer any legal or factual basis for concluding that the expert would be able to rebut or give a basis for precluding the State's expert witness on domestic violence. Finally, he did not present any basis for the superior court to conclude that no competent attorney would have followed his trial attorney's strategy of impeaching the witnesses by presenting general expert testimony on alcohol-related memory impairment.
See Tucker, 892 P.2d at 835-36.
As we explained in LaBrake v. State, conclusory allegations of a trial attorney's ineffectiveness are insufficient to establish a prima facie case of ineffective assistance of counsel and insufficient to provide any grounds for post-conviction relief. These omissions in Haube's pleadings are fatal to his claims. Therefore, we agree with Judge Carey that Haube failed to establish a prima facie claim that his trial attorney was ineffective in his use of the expert witness.
152 P.3d 474 (Alaska App. 2007).
Id. at 481.
The knives
At trial, the State introduced five knives into evidence. During the police investigation of the murder, paint was sprayed onto one of the knives, apparently accidentally. Haube claims that any competent attorney would have filed a motion to suppress the knives or requested a Thorne instruction regarding the knife that had been painted. Although Haube acknowledged that his attorney made a tactical choice regarding the knives, he argued the tactic was one that no reasonable attorney would have chosen.
See Thorne v. State, Dep't of Public Safety, 774 P.2d 1326, 1331-32 (Alaska 1989) (providing that when the State loses or destroys evidence in its possession, a possible remedy is for the court to instruct the jury to presume that the evidence would have been favorable to the defendant). --------
Judge Carey concluded that Haube's second-guessing of his attorney's strategy was insufficient to make a prima facie showing of ineffective assistance of counsel. He cited the attorney's explanation for allowing the knives to be admitted:
The fact that the State [offered] certain knives as possible murder weapons when they clearly were not murder weapons was, in my estimation, damaging to the State's case and supported our position that the State's approach was to make assertions that were not only uncorroborated but also objectively wrong. Tactically ... I would much rather have the State introduce evidence, as opposed to not introduce, a
trinket "Pocket Ulu" knife that the State's medical examiner has previously endorsed as a possible murder weapon when I know that I can establish that it did not exist at the time of murder.Judge Carey then explained:
[Trial counsel] goes on to list all of the knives introduced or referenced by the State, pointing out that the ones associated with Haube were analyzed and found to have no blood on them. He also notes that the serrated knife found near the victim's body was not established as the murder weapon and was not "particularly associated with any defendant, and certainly not Mr. Haube." In fact, none of the knives presented by the State were ever forensically tied to the victim or any of the co-defendants in the case.Judge Carey concluded that Haube's attorney had chosen a competent tactic regarding the knives and that Haube did not offer a prima facie case that no competent attorney would have adopted this tactic.
We agree with Judge Carey that Haube failed to offer any basis to conclude that his trial attorney employed tactics that were incompetent.
Conclusion
We AFFIRM the judgment of the superior court.