Opinion
Court of Appeals No. A-10499.
October 19, 2011.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge, Trial Court No. 3DI-03-064 Civ.
Leslie A. Hiebert, Anchorage, for the Appellant. Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
In 2001, Saul Lockuk Sr. had an argument with his son, Ephraim. During this argument, Ephraim challenged Lockuk to shoot him. Lockuk left the house, retrieved a handgun, and then returned. By this time, Ephraim was hiding on the back porch, and Lockuk could not find him. Lockuk then pointed the gun at his nephew, Phil Bavilla, and declared, "I should start with you." Bavilla convinced Lockuk to holster his gun and go outside with him to smoke a cigarette. When they got outside, Bavilla said that he had forgotten his cigarettes inside the house. When Bavilla got back inside the house, he fled through the back door.
Lockuk was convicted of third-degree assault for pointing the handgun at Bavilla. We affirmed Lockuk's conviction on direct appeal: Lockuk v. State, Alaska App. Memorandum Opinion No. 4926 (September 15, 2004), 2004 WL 2049732.
The current litigation arises from the superior court's denial of Lockuk's application for post-conviction relief. Lockuk raised ten claims for post-conviction relief, but at the evidentiary hearing in the superior court, Lockuk presented evidence on only one of his claims: a claim that the trial prosecutor improperly threatened three witnesses to induce them to give testimony favorable to the government at Lockuk's underlying criminal trial.
The superior court issued a written decision rejecting this claim of prosecutorial misconduct. The superior court did not explicitly address Lockuk's other nine claims, but (by its wording) the court's written decision was a final order denying Lockuk's petition for post-conviction relief.
In this appeal, Lockuk argues that the superior court improperly allowed the State to rely on inadmissible evidence at the evidentiary hearing, and he also argues that the court's findings of fact relating to the claim of prosecutorial misconduct are clearly erroneous. In addition, Lockuk argues that the superior court committed error by implicitly rejecting Lockuk's other nine claims without any explanation.
For the reasons explained in this opinion, we affirm the superior court's evidentiary rulings and the court's findings of fact relating to the claim of prosecutorial misconduct. We also conclude that the superior court was not required to issue findings of fact on Lockuk's other nine claims for post-conviction relief, since Lockuk did not pursue these claims at the evidentiary hearing. Underlying facts
While Lockuk's direct appeal of his conviction was still pending in this Court, Lockuk filed a petition for post-conviction relief in the superior court. This petition alleged numerous errors in the underlying criminal proceedings.
In response, the State filed a motion to dismiss Lockuk's petition for failure to state a prima facie case for relief. This motion to dismiss was still pending when Lockuk asked the superior court to stay the proceedings in the post-conviction relief litigation until his appellate litigation was concluded. The superior court granted this request.
After Lockuk's appellate litigation was completed and the post-conviction relief litigation relief resumed, Lockuk's attorney filed an opposition to the State's motion to dismiss. The superior court denied the State's motion — thus allowing the post-conviction relief litigation to proceed to discovery and trial.
As ultimately supplemented, Lockuk's petition for post-conviction relief listed ten different claims. However, when the superior court held its evidentiary hearing on Lockuk's petition, Lockuk presented evidence on only one of these claims. This was the claim that the trial prosecutor improperly threatened three trial witnesses: Ephraim Lockuk, Phil Bavilla, and Jesse Lockuk (another of Lockuk's sons).
It was undisputed that the prosecutor held a pre-trial meeting with these three witnesses at their hotel. Lockuk contended that, at this meeting, the prosecutor told the three young men that they would be charged with perjury unless their trial testimony favored the State.
At the evidentiary hearing, all three young men testified that the prosecutor threatened them at this pre-trial meeting. Each of the three claimed that they had no relevant memory or knowledge of the events that led to the criminal charge against Saul Lockuk — but when they told the prosecutor this, the prosecutor told them that they would go to jail unless their testimony conformed to their police statements or their grand jury testimony.
To rebut this claim, the State called the trial prosecutor to the stand. The prosecutor testified that, during the pre-trial interview, all three witnesses said they did not want to testify at Lockuk's trial. The prosecutor suspected that the three witnesses were reluctant to testify because they "were all fairly scared of Saul".
According to the prosecutor, he told the three witnesses that they should testify truthfully — and that if they truthfully did not remember the events in question, they should say so. The prosecutor denied telling the witnesses that they would be charged with perjury unless they testified in a particular manner. However, the prosecutor acknowledged that the subject of perjury was mentioned during the interview. The issue arose when the three witnesses asked the prosecutor what would happen if they took the stand and "[simply said] this didn't happen". The prosecutor responded, "You need to be aware that if you lie, that can be considered . . . perjury."
After hearing this conflicting testimony, Superior Court Judge Fred Torrisi concluded that the prosecutor's testimony was credible and that "nothing improper took place". Judge Torrisi found that the three witnesses did not want to testify at Lockuk's trial because they were members of Lockuk's family. The judge further found that the prosecutor "no doubt spoke[] to [the witnesses] forcefully [concerning] their obligation to testify" and "reminded [them] of their previous statements", but the prosecutor did not coerce or intimidate these witnesses.
Based on these findings, Judge Torrisi denied Lockuk's petition for post-conviction relief. Lockuk now appeals the superior court's decision. Lockuk's assertions of error relating to his claim of prosecutorial misconduct
Lockuk argues that Judge Torrisi committed procedural error during the evidentiary hearing by allowing the prosecutor, during his testimony, to refer to Phil Bavilla's prior police statement and grand jury testimony. When the prosecutor began speaking of these materials, Lockuk's attorney objected, arguing that the materials were hearsay.
But as Judge Torrisi noted in his written decision, the prosecutor did not rely on Bavilla's prior statement and grand jury testimony for the truth of the factual assertions made by Bavilla at these earlier times. Rather, the prosecutor relied on this material for two propositions: (1) to show that Bavilla was reluctant to testify against Lockuk; and (2) to show that, despite Bavilla's hesitancy to testify, Bavilla's testimony at Lockuk's criminal trial was consistent with his previous statements — thus implicitly rebutting Lockuk's assertion that Bavilla altered his version of events in response to the prosecutor's alleged threats.
Given the purposes for which this material was used, the prosecutor's reference to Bavilla's prior statement and grand jury testimony did not violate the hearsay rule.
Lockuk also argues that Judge Torrisi committed error when he allowed the prosecutor to refer to unspecified "records" within the district attorney's office which purportedly showed that Lockuk was "abusive" toward his sons. Again, Lockuk's attorney objected on hearsay grounds. But as Judge Torrisi noted, this material was not being offered for a hearsay purpose. That is, the prosecutor was not relying on these records to prove that Lockuk had actually abused his sons. Rather, the prosecutor referred to this information to explain the approach that he took when he conducted his pre-trial interview with Ephraim and Jesse Lockuk. Again, given the purpose for which this material was used, the prosecutor's reference to these unspecified reports did not violate the hearsay rule.
Lockuk also argues that the prosecutor's reference to Bavilla's prior statement, Bavilla's grand jury testimony, and the unspecified reports in the district attorney's office violated the Sixth Amendment right to confrontation as interpreted in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We reject this argument for three reasons.
First, the Sixth Amendment, by its wording, guarantees a right of confrontation to "the accused" in "criminal prosecutions". Lockuk offers no authority to support the proposition that the Sixth Amendment right of confrontation applies to post-conviction relief litigation, which is a civil lawsuit brought by an already-convicted criminal defendant who seeks to have their conviction overturned.
Second, as we have already explained, the evidence in question was not offered for a hearsay purpose. The Sixth Amendment's confrontation clause applies only to evidence that is both "testimonial" and "hearsay"; it does not bar testimonial evidence if that evidence is not hearsay: "The [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. at 1369.
And third, under Crawford, testimonial hearsay is admissible against a defendant if the declarant — that is, the person who made the hearsay statements — testifies at the trial. Id., 541 U.S. at 59, 124 S.Ct. at 1369. In Lockuk's case, the declarant who made the out-of-court statements — Phil Bavilla — was called as a witness at the evidentiary hearing on Lockuk's petition for post-conviction relief. Thus, Lockuk had the opportunity to examine Bavilla concerning these out-of-court statements.
As an alternative argument, Lockuk contends that the trial prosecutor violated his duty of pre-trial disclosure under Alaska Criminal Rule 16(b) by failing to tell Lockuk's trial attorney that, in this pre-trial interview, the three witnesses claimed to have no memory or knowledge of the relevant events underlying the criminal charge against Lockuk. This argument is not preserved for appeal. Lockuk did not present this claim to the superior court when he litigated his petition for post-conviction relief, and the superior court made no ruling or findings of fact relating to this claim.
Finally, Lockuk suggests that Judge Torrisi's findings of fact are clearly erroneous. In so many words, Lockuk argues that Judge Torrisi committed clear error when he concluded that the testimony of the trial prosecutor at the evidentiary hearing was more credible than the testimony offered by the three witnesses. We have reviewed the transcript of the evidentiary hearing, and the record amply supports Judge Torrisi's conclusions.
The superior court's failure to make explicit findings regarding Lockuk's other nine claims
At the evidentiary hearing in the superior court, Lockuk litigated only one claim: his claim that the prosecutor improperly threatened the three witnesses. Lockuk did not present any testimony or other evidence pertaining to his other nine claims. Likewise, when Judge Torrisi issued his written decision denying Lockuk's petition for post-conviction relief, the judge only discussed the prosecutorial misconduct claim; he did not address Lockuk's remaining nine claims.
Even though Judge Torrisi did not discuss Lockuk's other nine claims, Lockuk did not file a motion for reconsideration (or similar pleading) suggesting that Judge Torrisi had overlooked these other claims. Instead, Lockuk proceeded to file the present appeal.
About nine months after Lockuk filed this appeal, his appellate attorney (a different attorney from the one who represented Lockuk during the litigation in the superior court) asked this Court to remand this case to the superior court so that Judge Torrisi could rule on Lockuk's remaining claims. In this motion, Lockuk argued that Judge Torrisi must have overlooked these other claims, that these claims remained unresolved, and that Lockuk filed his appeal prematurely.
Based on our review of the superior court record, this Court concluded that Judge Torrisi's written decision was a final judgement denying all of Lockuk's claims, and we therefore denied Lockuk's motion for a remand.
See "Order" dated March 12, 2010 in this appeal.
In his briefs to this Court, Lockuk argues that if Judge Torrisi denied his remaining nine claims for post-conviction relief, then Judge Torrisi must have implicitly ruled that these nine claims did not state a prima facie case for relief. Lockuk argues that the judge's action makes no sense because, earlier in the superior court litigation, the State moved for judgement on the pleadings, and Judge Torrisi denied the State's motion. In other words, Judge Torrisi concluded that Lockuk's claims did state a prima facie case for relief.
Lockuk contends that it is impossible to reconcile the judge's two actions — i.e., the judge's earlier denial of the State's motion for judgement on the pleadings, and the judge's later denial of all of Lockuk's claims for post-conviction relief following the evidentiary hearing. According to Lockuk, what must have happened is that Judge Torrisi changed his mind about whether Lockuk's other nine claims were sufficient to survive a motion for judgement on the pleadings.
Based on this reading of the record, Lockuk argues that Judge Torrisi committed error by failing to notify Lockuk that he had changed his mind, and that he now concluded that Lockuk's other nine claims did not state a prima facie case for relief. Lockuk argues that if Judge Torrisi changed his mind about the sufficiency of Lockuk's other claims, then Lockuk should have been given an opportunity to supplement his petition to cure the perceived deficiencies.
Lockuk's argument is based on a misunderstanding of the relationship between (1) a judge's pre-trial denial of a dispositive motion (either a motion for judgement on the pleadings, or a motion for summary judgement) and (2) a judge's post-trial ruling on the merits of the defendant's claims for post-conviction relief.
When, in post-conviction relief litigation, a judge denies the State's motion for judgement on the pleadings or for summary judgement, the judge is simply saying that the case should proceed to a trial. The judge's denial of the State's motion represents a ruling that if the defendant ultimately succeeds in proving the assertions of fact contained in the defendant's petition, then the defendant would be entitled to relief.
But the judge's denial of the State's dispositive motion does not represent a conclusion about the ultimate merits of the defendant's claims. The judge must decide the merits of those claims later, based on the evidence presented at the trial or evidentiary hearing, and based on the legal principle that the defendant bears the burden of proving entitlement to post-conviction relief.
When Judge Torrisi denied the State's motion for judgement on the pleadings, the judge ruled that Lockuk was entitled to a trial or evidentiary hearing — i.e., an opportunity to present testimony or other evidence in support of his claims for post-conviction relief. But at this evidentiary hearing, Lockuk could not rely on the affidavits and other documents that he included with his petition for post-conviction relief, absent a stipulation between the parties, or absent some other provision of law relaxing the preference for live testimony. Rather, Lockuk had the burden of presenting evidence and argument to support his claims.
At the evidentiary hearing in the superior court, Lockuk's evidence related solely to his claim that the three witnesses had been subjected to improper prosecutorial threats. Lockuk made no attempt to present evidence relating to his other nine claims. And when Lockuk's attorney submitted his final argument to Judge Torrisi after the hearing was concluded, the attorney likewise argued only one claim: the claim of prosecutorial misconduct.
Given this record, Judge Torrisi was legally obliged to deny Lockuk's other claims — because Lockuk had presented no evidence or argument to support them, and because Lockuk bore the burden of proof.
The judge's action was wholly consistent with his earlier ruling that Lockuk's petition stated a prima facie case for relief with respect to these nine claims. That earlier ruling simply gave Lockuk an opportunity for an evidentiary hearing on his claims — an opportunity that he did not use.
In his reply brief, Lockuk argues (for the first time) that if his post-conviction relief attorney chose not to present evidence or argument relating to these remaining nine claims, then that choice was incompetent. We reject Lockuk's assertion for two reasons. First, this claim of ineffective assistance of counsel is raised for the first time in Lockuk's reply brief. Second, under Alaska law, unless the incompetence of an attorney is self-evident from the existing record, allegations of ineffective assistance of counsel must be litigated in the trial court before they are presented to this Court.
Sharp v. State, 837 P.2d 718, 722 (Alaska App. 1992); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
In Lockuk's case, it is far from self-evident that Lockuk's post-conviction relief attorney acted incompetently when he failed to present evidence in support of Lockuk's other nine claims for relief. We therefore give no further consideration to Lockuk's claim of attorney incompetence.
Conclusion
As we have explained here, none of Lockuk's appellate claims has merit. Accordingly, the judgement of the superior court is AFFIRMED.