Opinion
Court of Appeals No. A-10516.
August 18, 2010.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge, Trial Court No. 4FA-86-2644 CR.
Carl Thompson, Hudson, Colorado, Appellant pro se. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Carl K. Thompson was convicted of murder in the first degree for killing his former wife, Dixie Thompson, and tampering with physical evidence. The facts of this case were previously discussed in Thompson v. State:
AS 11.41.100.
AS 11.56.610.
At trial, Thompson defended on the ground that he initially stabbed Dixie Thompson in self-defense. Thompson [claimed] that he then lost control and killed Dixie in the heat of passion. Thompson asked the jury to convict him of the lesser-included offense of manslaughter. The jury ultimately convicted Thompson of murder in the first degree.
Thompson v. State, 768 P.2d 127, 129 (Alaska App. 1989).
Thompson appealed his conviction on several grounds. One of those grounds was that a statement which he made to the police was not voluntary. In his appeal, Thompson argued that the troopers "played on his sympathies, minimized his guilt, and placed much of the blame for the homicide on the victim." The troopers told Thompson "that if he did not say anything, the district attorney might conclude that Thompson had committed murder in the first degree." The troopers "suggested that if Thompson gave his side of the story, it was possible that Thompson might only be guilty of a lesser charge, such as negligent homicide, and would be facing a minimal sentence such as 2 to 5 years." In rejecting Thompson's argument on appeal, we concluded that Thompson's statements to the police were voluntary and that the statements the troopers made to Thompson to encourage him to talk to them were similar to inducements which we had previously held were not improper.
Id.
Id. at 131-34.
Id. at 131.
Id.
Id. at 132.
During Thompson's trial, the State played a portion of Thompson's statement where he admitted killing his former wife. Thompson asked to have the entire statement played to the jury. We upheld the trial court's decision to not play the statement in its entirety. We affirmed Thompson's conviction.
Id.
Id. at 132-34.
Id. at 134.
Thompson has continued to litigate the admissibility of the statement he made to the state troopers in numerous applications in both state and federal court. The history of this litigation is set out in subsequent memorandum opinion Thompson v. State.
Memorandum Opinion and Judgment No. 5265, (Alaska App., Oct. 24, 2007), 2007 WL 3121599 at *1.
In the instant appeal, Thompson again attacks the voluntariness of his statement to the troopers. His current claim is based on Beavers v. State, in which the Alaska Supreme Court held that when law enforcement officers obtain a statement from a defendant by the use of threats, any resulting statement is presumptively involuntary unless the State can show affirmatively that the defendant's will was not overcome by the threats and the defendant's statement was voluntarily made. Thompson argues that Beavers constitutes a change in the law and that, if the Beavers standard had been applied to his statements, his statements would have been suppressed. He contends that the troopers used threats to obtain his statement and therefore his statement was involuntary.
998 P.2d 1040 (Alaska 2000).
Id. at 1048.
Thompson brought this most recent claim in a request for relief from his judgment of conviction, based on Alaska Civil Rule 60(b)(6). This rule authorizes a court to grant relief from a final judgment in a civil case. Civil Rule 60(b) does not apply to the review of a criminaljudgment. Superior Court Judge Paul R. Lyle correctly ruled that Rule 60(b)(6) did not apply to Thompson's claim.
McLaughlin v. State, 214 P.3d 386, 386-87 (Alaska App. 2009).
However, Judge Lyle also recognized that Thompson could be trying to assert a claim under Alaska Criminal Rule 35.1(a)(7), which authorizes a defendant to attack a conviction if there has been a significant change in the law. The rule states that the defendant may attack a conviction 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.
Judge Lyle recognized that Criminal Rule 35.1(a)(7) was subject to the limitations set forth in AS 12.72.020. He ruled that Thompson's claim was barred because it was untimely because Thompson's claim had been previously decided and because Thompson had filed a previous application for post-conviction relief.
AS 12.72.020(a)(3), (5), and (6).
Thompson also contends that even if his claim was barred by AS 12.72.020, he had a right to bring his claim under the due process clause of the Alaska Constitution. H e relies on Grinols v. State, w here we stated that there might be situation s where strict application of AS 12.72.020 "may lead to fundamental unfairness."
10 P.3d 600 (Alaska App. 2000), aff'd, 74 P.3d 889 (Alaska 2003).
Id. at 616.
Judge Lyle made several observations in rejecting Thompson's due process claim. He pointed out that Thompson had not shown how, even if Beavers applied retroactively to his case, the application of Beavers would have resulted in the suppression of his statement. Furthermore, at trial, Thompson's defense was that although he killed his former wife, he had acted in the heat of passion and therefore had committed manslaughter, not first-degree murder. Judge Lyle concluded that Thompson did not show how admission of his statement to the police prejudiced this defense.
Judge Lyle also concluded that Thompson did not show that he had been diligent in presenting his claim. He pointed out that Beavers was decided in 2000. Yet Thompson did not raise his Beavers argument until 2008. Although Thompson argued that he was unaware of Beavers because he did not have access to the Pacific Reporter, Judge Lyle noted that this court had rejected a claim that the defendant did not have access to legal materials as an excuse for delay in Flanigan v. State. (In addition, Thompson cited Beavers in both his opening and reply briefs in a prior application. )
3 P.3d 372, 376 (Alaska App. 2000).
Brief for Appellant at 22, Reply Brief for Appellant at 9, Thompson, 2007 WL 3121599.
We affirm Judge Lyle's order denying Thompson's petition. A s Judge Lyle recognized, Thompson has litigated the voluntariness of his confession on numerous occasions. His current petition is barred on several grounds by AS 12.72.020. And Thompson has not established any basis for concluding that the application of AS 12.72.020 to his petition would violate due process.
The judgment of the superior court is AFFIRMED.