Opinion
Court of Appeals No. A-12302 No. 6750
01-02-2019
DENNI ROSE STARR, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jason A. Weiner, Gazewood & Weiner, P.C., Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Kenneth M. Rosenstein, under contract with the Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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. 1SI-07-195 CI
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Sitka, David V. George, Judge. Appearances: Jason A. Weiner, Gazewood & Weiner, P.C., Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Kenneth M. Rosenstein, under contract with the Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
In July 2003, Denni Rose Starr had an argument with her longtime boyfriend, Richard "Buddy" George Jr. During this argument, Starr stabbed George in the back. At the time, George was holding their eighteen-month-old daughter in his arms. The blade of the knife punctured George's lung, and George quickly died.
Starr was charged with two counts of second-degree murder (based on alternative theories) and one count of reckless endangerment for engaging in conduct that created a substantial risk of serious physical injury to her baby daughter.
Before trial, Starr was initially represented by Darrel Gardner with the Office of Public Advocacy (OPA) (following a very brief period of representation by a different attorney). Gardner met with Starr once and had several phone conversations with her, but otherwise did not significantly investigate her case before deciding to leave OPA. In early 2004, following Gardner's departure from OPA, Starr's case was reassigned to attorney Steven Wells. About six months later, the case proceeded to trial.
Wells based his defense of Starr on the theory that the stabbing was a mixture of self-defense, heat of passion, and accident. After the close of the State's case, Wells advised the court that he had just obtained information that Starr had been diagnosed with a concussion following the stabbing. Wells suggested that Starr may have received the concussion prior to the stabbing and argued that the information was relevant to Starr's defense. Wells moved for a new trial, or, in the alternative, a continuance. The court denied Wells's motions.
The jury found Starr guilty of second-degree murder and reckless endangerment. We affirmed Starr's conviction on appeal, upholding the superior court's denial of Starr's motion for a continuance during trial and Starr's motion for a new trial.
Starr v. State, 2007 WL 293072, at *5-6 (Alaska App. Jan. 31, 2007) (unpublished).
Following her direct appeal, Starr applied for post-conviction relief. In a subsequently filed amended application, Starr argued that her pretrial attorney, Darrel Gardner, was ineffective for failing to investigate the possibility that Starr had suffered a concussion before she stabbed George. (Starr also made a similar claim of ineffective assistance against Wells, but she failed to further pursue this claim after the court dismissed it for failing to state a prima facie case, and she does not renew this claim on appeal.)
Starr's claim against Gardner was primarily based on her assertion that she told Gardner that she had suffered a concussion. At an evidentiary hearing to address her claim, Starr testified that she had been diagnosed with a concussion at the Lemon Creek Correctional Center after her arrest. Starr stated that she told Gardner about this diagnosis, but that Gardner told her that the information was "not going to be very helpful."
Gardner testified that, during the few months he was representing Starr, he had only an introductory meeting with her and that the case was still in the discovery phase when he left OPA. Gardner did not have any recollection of being told, or otherwise learning, that Starr had sustained a head injury.
Wells also testified at the hearing. Wells testified that he first learned about Starr's concussion during the middle of trial when he was preparing one of Starr's family members to testify. Wells stated that Starr never told him directly about a possible head injury, nor did she ever suggest that she did not know what she had done.
The superior court denied Starr's application for post-conviction relief. The court concluded that Starr had not established by clear and convincing evidence that she told Gardner about the purported concussion. The court found that Starr's testimony was not credible — that she had fabricated facts and had told different stories about the event over time. The court also expressed skepticism about Starr's claim that Gardner, an experienced trial attorney, had dismissed her report of a concussion out of hand. Finally, the court found it "unreasonable" that Starr would have told Gardner about the concussion, but not Wells or his investigator — people with whom she had a more established relationship.
The superior court additionally addressed a related issue that arose for the first time at the evidentiary hearing, during the testimony of Marcelle McDannel. McDannel was an attorney with OPA who testified for Starr as an expert in the preparation of homicide cases for trial. McDannel opined that Starr's six-year-old daughter Kendra's statements to the police — which suggested that Starr may have suffered a head injury during her argument with George — provided sufficient notice that additional investigation needed to be done and that, at the very least, Kendra should have been re-interviewed.
The court concluded that Starr had not established by clear and convincing evidence that this evidence would cause a minimally competent attorney to recognize that Starr might have suffered a head injury. The court found that Kendra's statement "hardly compels inquiry into the possibility of a head injury" and noted that neither Wells nor his investigator felt the need to inquire into the possibility of a head injury based on this same information.
The court also emphasized that Gardner was not Starr's trial attorney — that he only represented her for a few months early in the case. The court found that Gardner had made a tactical decision not to undertake any investigation until he had reviewed all the discovery from the State and had conducted a detailed interview with Starr. The court further found that Gardner's decision was not incompetent. The court concluded, "If there was any failure to investigate in this case in advance of trial (which the court does not believe there was), it cannot be laid at Gardner's feet."
Why we uphold the superior court's denial of Starr's application for post-conviction relief
Starr argues that the superior court improperly denied her application for post-conviction relief, and specifically, that the court's factual finding that Starr did not tell Gardner about suffering a concussion was clearly erroneous. Starr notes that Gardner never testified that Starr did not tell him about a concussion, but only testified that he could not recall. But Starr fails to recognize that she bore the burden of proving all factual assertions by clear and convincing evidence.
See Lindeman v. State, 244 P.3d 1151, 1154 (Alaska App. 2011) (reviewing factual findings in a post-conviction relief proceeding for clear error).
AS 12.72.040; State v. Zeciri, 43 P.3d 169, 170 (Alaska App. 2002).
Starr also points to her own testimony at the evidentiary hearing, in which she stated that she affirmatively told Gardner about suffering a concussion. But the court found that Starr was not credible, and "[i]t is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence."
Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999); see also Alexie v. State, 402 P.3d 416, 418 (Alaska App. 2017) (noting that when material facts are contested in a post-conviction relief proceeding, the trial court must hear the evidence and determine which assertions of fact are more credible).
Based on our review of the record, we conclude that the superior court did not clearly err in finding that Starr failed to establish by clear and convincing evidence that she told Gardner about her concussion diagnosis.
See Ferguson v. State, 242 P.3d 1042, 1051 (Alaska App. 2010) (noting that a factual finding is "clearly erroneous" if the court is left with "a definite and firm conviction that a mistake has been made") (internal quotations omitted).
It is unclear from Starr's briefing whether she is separately raising a claim based on Kendra's statement. To the extent that Starr is arguing that the court erred in finding that Gardner was not on inquiry notice that Starr might have suffered a concussion based on Kendra's statements, we conclude that this argument is inadequately briefed. Starr's sole mention of this point is a restatement of McDannel's testimony from the hearing — i.e., McDannel's opinion that "there was sufficient information to place competent defense counsel on notice that Ms. Starr may have suffered a concussion prior to the stabbing of Buddy George." Starr does not discuss the contents of Kendra's statement or explain why an attorney who failed to interpret the statement as giving notice of a potential head injury would be obviously incompetent.
See Hagen v. Strobel, 353 P.3d 799, 805 (Alaska 2015) ("Where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal.") (internal quotations omitted).
We further note that Gardner only represented Starr for a few months when the case was still in the discovery phase. It was Wells who did the investigative work and represented Starr at trial. Notably, Wells reviewed these same police reports after he took over the case from Gardner, and Wells never recognized the possibility that Starr might have suffered a head injury before she stabbed George. Yet Starr did not pursue her ineffectiveness claim against Wells.
Starr does not challenge the superior court's ruling that Gardner could competently decide to defer investigation of the case until after reviewing all the discovery. Wells had at least six months to independently investigate Starr's case after he assumed responsibility for Starr's defense. We fail to see how Gardner's conduct alone could be the basis for relief on this second claim.
Conclusion
We AFFIRM the superior court's denial of Starr's post-conviction relief application.