Opinion
Court of Appeals No. A-10130.
May 5, 2010.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Leonard Devaney, Judge, Trial Court No. 4BE-05-369 CI.
Doug Miller, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.
Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Stanley Mute filed an application for post-conviction relief, asking the superior court to apply the case of Crawford v. Washington, to certain hearsay admitted at his 1996 trial. Superior Court Judge Leonard Devaney held that Mute's application was barred because he had filed two previous applications for post-conviction relief. In the alternative, Judge Devaney held that Crawford should not be applied retroactively under the terms of the post-conviction relief statute, AS 12.72.010(7). We decline to reach the constitutional issues Mute raises because he waived his confrontation objection when he made a tactical decision not to raise the objection at his underlying criminal trial.
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Background The hearsay testimony at Mute's trial
Mute lived with his companion M.E. and her family in a village outside of Bethel. One night, when Mute was drinking vodka with M.E. and her brother Herman Esoak, Mute accused M.E. of infidelity and began to fight with her. Esoak tried to protect M.E., but Mute shoved him into the wall and broke his arm. Esoak left to get assistance from Alice and Harry Williams in order to remove the children from the house. M.E. was basically uninjured when Esoak left the home.
Harry Williams went to M.E.'s house some time later to get some baby supplies. When Williams arrived, M.E. was hysterical and badly beaten. Her face and shirt were bloody, and she told Williams that Mute had torn her bottom. M.E. asked Williams to take Mute to jail, but Williams told Mute to go turn himself in, and Mute left the residence.
Williams and other villagers reported this assault to Village Police Officer Robert Larson. Larson found M.E. curled up on the sofa in her house in serious pain. He made arrangements for M.E. to be taken to the village clinic, where she was examined by health aide Elena Alexie.
M.E. told Alexie that her boyfriend had forced her to have anal sex. Alexie confirmed that M.E.'s sphincter was torn and bloody and that blood from her anal area was spread all over her socks and pants. Alexie contacted the hospital in Bethel and made arrangements for M.E. to be transported there.
When M.E. arrived at the hospital in Bethel she had multiple bruises, facial swelling, and extreme injuries to her anal and vaginal area. She told the emergency room physician, Dr. Muna ar-Rushdie, that she had sex with her boyfriend, and then he had gotten violent and forced her to engage in anal sex. Dr. ar-Rushdie testified that she had never seen worse injuries from a sexual assault.
Larson interviewed M.E. before she was transported to Bethel. M.E. told Larson that after she went to bed, she had felt a sharp pain in her vaginal area where Mute was using his hand.
Alaska State Trooper Charles Tressler also interviewed M.E. at the Bethel Hospital. M.E. told Tressler that after Esoak left the residence, Mute began to hit her on the head and body. Then Mute forced her to have sex. She testified that at one point Mute began to insert his fingers or hand inside her vagina. After the injury, she confronted Mute; he replied that he was glad he did it because it was payment for what she had done to him.
M.E. was eventually transported to Anchorage for surgery. The surgeon, Dr. Neil Murphy, also documented severe injuries to M.E.'s rectum and vagina. Like Dr. ar-Rushdie, Dr. Murphy opined that he had never seen injuries in a sexual assault case which were as severe as the injuries to M.E.
At Mute's trial, the State presented M.E.'s hearsay statements to Williams, health aide Alexie, Officer Larson, Dr. ar-Rushdie, and Trooper Tressler, as summarized above, without any objection from Mute's attorney. M.E.'s refusal to testify
On the second day of trial, which was held in Bethel, the prosecutor advised the court that he had received a telephone call from the Bethel hospital stating that M.E. had accompanied her child to Anchorage for treatment for a medical emergency. In response, Mute's attorney stated that he wanted to confront M.E. and that he was entitled to do so.
Superior Court Judge Mary E. Greene apparently telephoned M.E. in Anchorage, and then M.E. returned to Bethel to testify. On the morning when M.E. appeared, Mute asked to personally address the court. He objected to his attorney's request to force M.E. to testify. He characterized the request as misrepresentation and asked the court to declare a mistrial.
Judge Greene denied the mistrial request and M.E. took the stand. But she immediately invoked the Fifth Amendment before the attorneys could begin to question her. The trial judge tried to explain that the Fifth Amendment privilege did not apply, but Mute interrupted to advise M.E. that she did not have to talk if she did not want to.
After this exchange, the prosecutor indicated that defense counsel had insisted that the State call M.E. as a witness, but that the State would rest if the defense abandoned its request. The judge asked defense counsel directly if he wanted M.E. to be held in contempt for refusing to testify, and counsel asked if he could have a private conversation with Mute.
Judge Greene also appointed an attorney to represent M.E. After M.E.'s attorney had the chance to talk with her, he did not assert any grounds to support a Fifth Amendment privilege. He instead claimed that M.E. needed a psychologist because she was under considerable stress. The judge then asked both parties to state their positions on M.E.'s refusal to testify.
The prosecutor again indicated that if M.E. was refusing to testify, then the State was prepared to rest its case without calling her as a witness. Defense counsel did not ask the court to hold M.E. in contempt, or otherwise force her to testify, nor did defense counsel seek a mistrial. Instead he suggested that the court should find that M.E. was unavailable as a witness, and that the trial should continue.
M .E. then confirmed that she was refusing to testify. The court did not hold her in contempt or otherwise force her to testify. The parties both rested without offering any further evidence. The jury convicted Mute of first-degree sexual assault and second-degree assault and a separate count of second-degree assault for breaking Esoak's arm.
AS 11.41.410(a)(1).
AS 11.41.210(a)(2).
Post-trial proceedings
Mute appealed his convictions in 1998, but he did not object to any of M.E.'s out-of-court statements or raise any hearsay or Confrontation Clause issues in his appeal.
Mute v. State, 954 P.2d 1384, 1385-88 (Alaska App. 1998).
During the pendency of his direct appeal, Mute filed his first application for post-conviction relief, alleging ineffective assistance of trial counsel. Among other claims, Mute alleged that his trial attorney was ineffective because he failed to object to the hearsay statements that were admitted at trial. On this issue, Judge Greene concluded that Mute's attorney made a tactical choice not to object. Mute appealed the denial of post-conviction relief, but he did not challenge Judge Greene's ruling regarding his attorney's tactical decision not to object to the hearsay statements that he now disputes.
Mute v. State, Memorandum Opinion and Judgment No. 4338 (Alaska App. Jan.10, 2001), 2001 WL 21218, *1.
Id. at *1-4.
Mute then filed a second application for post-conviction relief, alleging that his attorney on his first application had rendered ineffective assistance. Mute did not raise any new hearsay objections or Confrontation Clause arguments. Judge Devaney dismissed Mute's second application, and this court affirmed the superior court's order.
See Grinols v. State, 74 P.3d 889, 896 (Alaska 2003) ("Because a defendant has a constitutional right to effective counsel in a first application for post-conviction relief, that defendant must be given the opportunity to challenge the effectiveness of counsel in a second petition for post-conviction relief.").
Mute v. State, Memorandum Opinion and Judgment No. 5282 (Alaska App. Dec. 12, 2007), 2007 WL 4323004, *4.
While Mute's second application was pending, the United States Supreme Court decided Crawford v. Washington. So Mute filed a third application for post-conviction relief, contending that his conviction "rested upon illegal and inadmissible hearsay testimony in violation of the Sixth Amendment." Mute argued that Crawford was a "watershed decision . . . held to be retroactive by the Ninth Circuit." The State requested dismissal of Mute's third application, noting that Mute's application was apparently barred by AS 12.72.020(a)(6) because he had filed two prior applications for post-conviction relief.
541 U.S. at 53-54, 124 S. Ct. at 1365-66 (holding that the Sixth Amendment bars admission of testimonial statements of a witness who did not appear at trial unless that witness was unavailable to testify, and the defendant had had a prior opportunity for cross-examination).
See Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005), rev `d, Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007).
AS 12.72.020(a)(6) bars a claim under AS 12.72.010 or the Alaska Rules of Criminal Procedure if "a previous application for post-conviction relief has been filed under this chapter or under the Alaska Rules of Criminal Procedure."
Judge Devaney granted the State's request to dismiss Mute's third application for post-conviction relief. He concluded that AS 12.72.020(a)(6) prevented Mute from filing a successive application for post-conviction relief and that the statute did not violate Mute's right to due process or equal protection or the doctrine of separation of powers. In the alternative, Devaney concluded that a claim for retroactive application of Crawford to Mute's case could not satisfy Alaska Criminal Rule 35.1(a)(7), primarily because the application of Crawford would not have raised a reasonable doubt about Mute's guilt. Mute now appeals from Judge Devaney's decision dismissing his third application for post-conviction relief. Discussion
Under Alaska Criminal Rule 35.1(a)(7), a person may bring a proceeding for post-conviction relief if:
(A) there has been a significant change in law, whether substantive or procedural, applied in the process leading to the applicant's conviction or sentence;
(B) the change in law was not reasonably foreseeable by a judge or a competent attorney;
(C) it is appropriate to retroactively apply the change in law because the change in law requires observance of procedures without which the likelihood of an accurate and fair conviction is seriously diminished; and
(D) the failure to retroactively apply the change in law would result in a fundamental miscarriage of justice, which is established by demonstrating that, had the change in law been in effect at the time of the applicant's trial, a reasonable trier of fact would have a reasonable doubt as to the guilt of the applicant. . . .
Mute contends that AS 12.72.020(a)(6) should not be read to prevent a successive application for post-conviction relief when the applicant requests the retroactive application of a constitutionally required rule of criminal procedure. He argues that the ban on successive applications would be unconstitutional if it is read to prevent an applicant from taking advantage of a change in law that is retroactive. He also argues that the limitations on retroactivity stated in Criminal Rule 35.1(a)(7) are unconstitutional, and that we should apply the Judd test to assess the retroactivity of Crawford in Alaska.
See Judd v. State, 482 P.2d 273 (Alaska 1971).
We need not resolve Mute's arguments concerning the retroactivity of Crawford under Alaska law. Nor need we resolve Mute's argument that Alaska law impliedly contains an exception to the ban on successive petitions for post-conviction relief codified in AS 12.72.020(a)(6) in situations where a defendant seeks relief based on a new rule of law that is retroactive. All of these arguments are moot under the facts of Mute's case. Even if Crawford's ban on testimonial hearsay applied retroactively in Alaska, and even if Mute were entitled to seek post-conviction relief on that basis, the facts of Mute's case demonstrate that he would not be entitled to relief.
Under AS 12.72.020(a)(1), a petition for post-conviction relief cannot be based on a challenge to "the admission or exclusion of evidence at [the defendant's] trial." This provision would apparently bar Mute's petition for post-conviction relief, even if it had not been a successive petition. But even assuming that Mute's petition could go forward despite AS 12.72.020(a)(1), Mute did not raise a Confrontation Clause objection to the challenged hearsay testimony during his trial. This means that, to prevail in his petition for post-conviction relief, he must show that the trial court committed plain error in allowing the State to introduce the hearsay.
See Malutin v. State, 198 P.3d 1177, 1184 (Alaska App. 2009) (holding that even if the right to jury trial recognized in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), applied retroactively, the defendant was obliged to show that any violation of Blakely during his sentencing proceedings amounted to plain error because he did not demand a jury trial on aggravators during his original sentencing proceeding); Lockuk v. State, 153 P.3d 1012, 1017-18 (Alaska App. 2007) (same).
In order to establish plain error, Mute must show that his trial attorney had no tactical reason for failing to object to the hearsay admitted at his trial. In his first post-conviction relief application, Mute argued that his trial attorney had rendered ineffective assistance by failing to object to this same testimony.
See Simon v. State, 121 P.3d 815, 819 (Alaska App. 2005).
Judge Greene concluded that Mute's attorney made a tactical decision not to object because he expected M.E. to testify.
[The trial attorney's] failure to object to instances of M.E.'s out-of-court statements did not constitute ineffective assistance. . . . [T]he failure to object was tactical. [The trial attorney] explains in his affidavit that he made the conscious decision not to object based on his trial strategy. . . . That is a common strategy by competent counsel: recognizing that the evidence may be admitted in a more convincing form, counsel will elect not to call attention to objectionable evidence by objecting.
Mute did not contest this issue when he appealed to this court from Judge Greene's decision dismissing his first application for post-conviction relief. Therefore, Judge Greene's conclusion establishes that Mute's attorney made a tactical decision when he failed to object to the testimony about M.E.'s statements.
See Beal v. Beal, 209 P.3d 1012, 1016-17 (Alaska 2009) ("The law of the case doctrine . . . prohibits . . . reconsideration of issues which have been adjudicated in a previous appeal in the same case") (quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 873-74 (Alaska 2003)).
The State did not rely on Judge Greene's order when it requested dismissal in this case, so the order is not included in the record for this appeal. But when we review the trial transcript, we reach a conclusion fully consistent with Judge Greene's: Mute's attorney had a tactical reason for his failure to object to this testimonial hearsay.
Mute's trial attorney faced another confrontation issue later in the trial, when M.E. refused to testify. At this point, the record suggests that Mute's attorney made a tactical decision not to request an order declaring a mistrial or compelling M.E. to testify. When it first appeared that M.E. would not testify, Mute's attorney asserted that M.E.'s absence would infringe upon Mute's right of confrontation. Responding to these assertions, Judge Greene made it fairly clear that she would consider imprisoning M.E. in order to compel her to testify. She gave Mute's attorney at least two opportunities to request such an order.
Mute's trial attorney could have requested a mistrial or an order compelling M.E. to testify. He also could have asked the trial judge to strike the hearsay evidence that had been admitted earlier when the parties assumed that M.E. would be available for cross-examination. But if Mute's attorney had done so, then M.E. may have decided to testify to avoid imprisonment. Mute's attorney could have reasonably assumed that M.E.'s testimony would be more convincing than the hearsay accounts offered by the other witnesses. So Mute's attorney urged the trial judge to declare M.E. unavailable, and to let the trial go forward.
Regardless of his actual motivation, Mute's attorney deliberately chose not to ask for any further relief. There was a logical tactical reason for his decision not to demand M.E.'s testimony, just as there was a logical tactical reason for his failure to object to the hearsay statements in the first place. So the trial court did not commit plain error by admitting the hearsay testimony or continuing with the trial.
Conclusion
We AFFIRM the superior court's judgment dismissing Mute's third application for post-conviction relief.