Opinion
A-13477
03-16-2022
JUSTIN A. STARKWEATHER, Appellant, v. STATE OF ALASKA, Appellee.
Jason A. Weiner, Jason Weiner & Associates, P.C., Fairbanks, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court No. 3KN-12-00092 CI, Third Judicial District, Kenai, Jason M. Gist, Judge.
Jason A. Weiner, Jason Weiner & Associates, P.C., Fairbanks, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Following a jury trial, Justin A. Starkweather was convicted of attempted first-degree murder, first-degree sexual assault, first-degree assault, first-degree burglary, and fourth-degree theft. On direct appeal, this Court merged the first-degree assault and attempted murder counts into a single conviction but otherwise affirmed Starkweather's convictions. Starkweather subsequently filed an application for post-conviction relief, raising two claims.
See AS 11.41.100(a)(1)(A) & AS 11.31.100(a), AS ll.4l.4lO(a)(1)-(2), AS ll.4l.2OO(a)(1)-(3), AS 11.46.300(a)(1), (2)(B), and AS 11.46.150(a), respectively.
See Starkweather v. State, 244 P.3d 522, 535 (Alaska App. 2010); see also Starkweather v. State, 2009 WL 2568545, at *l-2 (Alaska App. Aug. 19, 2009) (unpublished).
First, Starkweather alleged that he had received ineffective assistance of counsel because his trial attorney did not move for a mistrial after the State provided late notice of a jailhouse informant that it intended to call as a witness. Second, Starkweather argued that the State violated its Brady obligation by failing to disclose that an alternate suspect told the prosecutor that he would invoke his privilege against self-incrimination if he were called as a witness at trial. Starkweather asserted that this failure to provide exculpatory evidence entitled him to a new trial.
Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that all "favorable" evidence possessed by the prosecutor that is "material either to guilt or to punishment" must be disclosed to the defendant).
The superior court dismissed both claims for failure to state aprima facie case for relief, and Starkweather now appeals the superior court's decision.
Whether a post-conviction relief application sets forth a prima facie case for relief is a question of law that we review de novo. To establish a prima facie case of ineffective assistance of counsel, a defendant must allege facts that, if proven true, show that the attorney was incompetent and that the attorney's incompetent performance caused the defendant prejudice.
Burton v. State, 180 P.3d 964, 974 (Alaska App. 2008).
Risher v. State, 523 P.2d 421, 425 (Alaska 1974); see also Strickland v. Washington, 466 U.S. 668, 687(1984).
Having reviewed the pleadings in this case, we agree with the superior court that Starkweather failed to establish aprimafacie case for relief as to either of his claims.
With regard to Starkweather's first claim that it was incompetent for his trial attorney not to move for a mistrial when the State called a jailhouse informant as a witness, we agree with the superior court that the record establishes that Starkweather's trial attorney made a reasonable tactical decision not to move for a mistrial. As the attorney explained in her affidavit, she decided not to move for a mistrial because the trial "had actually gone fairly well" for Starkweather, and the evidence from the informant "was fairly suspect and subject to impeachment." The attorney also had concerns about the family's limited financial resources and their ability to fund a retrial.
State v. Jones, 759 P.2d 558, 569-70 (Alaska App. 1988) ("[W]hen a tactical choice has in fact been made, . . . the choice will be subject to challenge only if the tactic itself is shown to be unreasonable - that is, a tactic that no reasonably competent attorney would have adopted under the circumstances.").
On appeal, Starkweather argues that the attorney's concerns about the family's financial resources were improper because he could have received public counsel on a retrial. But the record is clear that the attorney's tactical decision was based on much more than concern about resources. The decision instead involved the attorney's professional assessment of how the trial was going, the weaknesses of the informant's testimony, and the relative benefits and harm that a mistrial might bring. The record also shows that the attorney took other action in response to the State's late-disclosed witness. The attorney filed a motion to preclude the informant's testimony, which was denied. And the attorney received a continuance to prepare for the informant's testimony. Because the record demonstrates that the attorney made a reasonable tactical decision not to move for a mistrial, we affirm the superior court's dismissal of this claim for failure to state a prima facie case.
Starkweather's second claim is that the State violated its Brady obligation by failing to disclose that an alternate suspect told the prosecutor that he would invoke his privilege against self-incrimination if he were called as a witness at trial. But, as the superior court found, Starkweather's pleadings do not establish that the alternate suspect, Fred Bahr, ever told the prosecutor that he would have invoked the Fifth Amendment if required to testify at trial. In a post-trial interview with a defense investigator, Bahr stated that he did not want to testify against Starkweather at trial, not for Fifth Amendment reasons, but rather because he had a personal "code of honor" that you "[d]on't rat. You don't talk."
Accordingly, we agree with the superior court's conclusion that Starkweather's pleadings failed to support the underlying factual predicate for his Brady claim - i.e., his claim that Bahr had told the prosecutor that he intended to invoke the Fifth Amendment if called to testify.
We also note that we share the superior court's confusion over how Starkweather would have a viable Brady claim even if the factual predicate was met. In his brief, Starkweather seems to suggest that he would have been able to argue to the jury that Bahr invoked his Fifth Amendment right because Bahr was the true culprit. But Starkweather would be precluded from making such arguments as a matter of law because it is well settled that "no inference is to be drawn from the fact that a person has claimed the benefit of a privilege not to testify."
David v. State, 28 P.3d 309, 314 (Alaska App. 2001); see Alaska R. Evid. 512(a) (declaring that the "claim of privilege ... is not a proper subject of comment by judge or counsel"); see also Alaska R. Evid. 512(b) & cmt. para. 1 (directing courts to avoid the "[destruction of the privilege by innuendo" by conducting trials so that, "to the extent practicable," no one has to assert this privilege in front of the jury).
The judgment of the superior court is therefore AFFIRMED.