Opinion
A-13381 7087
01-17-2024
HECTOR ALVARENGA Appellant, v. STATE OF ALASKA, Appellee.
Susan Orlansky, Reeves Amodio LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Third Judicial District, Anchorage, Trial Court No. 3AN-14-06060 CI, Jack W. Smith, Judge.
Susan Orlansky, Reeves Amodio LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
TERRELL JUDGE.
Hector Alvarenga appeals the superior court's dismissal of his application for post-conviction relief for failure to state a prima facie claim. Alvarenga was convicted of two counts of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor for abusing his young stepdaughter, L.C. We affirmed his conviction on direct appeal.
Alvarenga v. State, 2013 WL 492864, at *1 (Alaska App. Feb. 6, 2013) (unpublished).
In Alvarenga's subsequent post-conviction relief application, he argued that his privately retained trial attorney provided ineffective assistance of counsel for two reasons. First, Alvarenga claimed that his trial attorney was ineffective because he failed to retain an expert witness on false confessions. Second, Alvarenga claimed that his trial attorney was ineffective for not withdrawing from the case after his motion for expert funding was denied so that Alvarenga could obtain public counsel from the Public Defender Agency, which, according to Alvarenga, could have provided funding for a false confessions expert.
The State moved to dismiss Alvarenga's application on the basis that it failed to establish a prima facie claim that all competent defense attorneys would have sought to retain a false confessions expert, given the questionable admissibility of expert testimony on false confessions both in Alaska and nationally when Alvarenga's case was tried in 2009. The superior court agreed and granted the motion to dismiss. For the reasons stated below, we affirm.
Background factual and procedural history
1. The underlying events and police investigation
In late 2007 Alvarenga's wife, Stacy, was tucking L.C. into bed when L.C. stated, "I'm tired of the way that Papi Hector is touching me." L.C. said that Alvarenga would put his hand inside her underwear "on purpose" when he carried her to bed.
L.C. repeated these allegations at a subsequent Child Advocacy Center interview with Anchorage Police Detective Dawn Neer. L.C. told Detective Neer that Alvarenga had been touching the inside of her vagina with his hand since she was seven years old, "too many times to count," and that the last time it had happened was the preceding weekend.
Detective Neer obtained a warrant to record a phone call from Stacy to Alvarenga. On the recorded phone call, Stacy told Alvarenga that she had heard from L.C.'s counselor that he had inappropriately touched L.C.; Alvarenga denied the accusation. Stacy repeated that she believed L.C., and that L.C. had no reason to make something like that up. Stacy repeatedly pressed Alvarenga to "tell [her] the truth." She stated that she needed to "get some answers" from Alvarenga, and that it was the only way they could maintain their relationship, heal the damage to their family, and that Alvarenga could obtain forgiveness. Stacy implied that their marriage would end if Alvarenga was not forthcoming. Alvarenga stated that he would "go to a counselor with you or whatever I need to do" and did not want their family to dissolve. Alvarenga repeatedly denied wrongfully touching L.C. Stacy told Alvarenga that she was not coming home until he was "willing to talk to [her] about this" - i.e., willing to concede that L.C. was telling the truth.
Half an hour after the call, Detective Neer and Anchorage Police Detective Brett Sarber arrived at Alvarenga's house and obtained his permission to enter. After preliminary questions, Detective Neer told Alvarenga that L.C.'s accusations appeared credible and that the only way that he could repair the damage to his family and obtain forgiveness was to admit the truth. Initially, Alvarenga denied that he intentionally touched L.C. inappropriately. Detective Neer then repeated that she believed L.C. and that Alvarenga could only obtain forgiveness, and allow L.C. to heal, by telling the truth. At that point, Alvarenga confessed to having touched L.C.'s vagina three times, once involving slight digital penetration and two times involving direct contact with her external genitalia. Alvarenga also confessed that he had touched L.C.'s vagina over her clothes up to thirty times from the time she was six years old until the present.
2. The criminal charges and trial
Alvarenga's case proceeded to trial on two counts of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor.
AS 11.41.434(a)(2) and AS 11.41.436(a)(3), respectively. Counts I and III concerned Alvarenga's actions on the weekend before L.C.'s disclosures. Counts II and IV focused on L.C.'s disclosure over a one-year period when the abuse began.
Ahead of trial, Alvarenga's privately retained attorney focused on attacking Alvarenga's confession. He moved to suppress the confession, arguing that the detectives should have read Alvarenga his Miranda rights. He also argued that Alvarenga's statements were involuntary because he was under the influence of Percocet and because the interview was coercive. The State opposed, arguing that Alvarenga was not in custody during the interview and that his confession was voluntary. After an evidentiary hearing, the court denied the suppression motion.
Alvarenga moved for reconsideration of his motion to suppress. He also moved to continue the trial date because he wished to have a former FBI agent who was an expert on false confessions appointed to review his statements to the detectives, and because he was out of funds to pay for an expert. The court issued a written order setting a trial date and denied Alvarenga's motion for reconsideration.
Twelve days before trial was set to begin, Alvarenga moved to have a former FBI Agent appointed as an expert witness, at public expense, to testify regarding false confessions. The motion also sought to have Alvarenga's privately retained attorney appointed at public expense, noting that Alvarenga was out of funds. The superior court ordered that the case be put on for trial call, rather than go forward on the scheduled trial date. The court also denied Alvarenga's motion for funding for an expert witness, stating that Alaska Criminal Rule 39 only applied where the defendant had publicly appointed counsel.
Alvarenga then filed a petition for review, seeking reversal of the order denying his motion for expert funding. This Court denied Alvarenga's petition for review, and the superior court set a trial date.
At trial, Alvarenga's attorney did not call an expert on false confessions. Rather, in his opening statement, he argued that Alvarenga's confession was false because the detectives pressured Alvarenga and manipulated his desire to maintain his relationship with Stacy, and because Alvarenga experienced mental confusion from having taken Percocet before the interview. He also told the jury that Detective Sarber would verify that false confessions are known to happen. Alvarenga's attorney relied on the recordings of the phone call between Alvarenga and Stacy and his interview with the detectives to support the defense theory that Alvarenga falsely confessed to save his relationship with Stacy. He also relied on the detectives' testimony, which brought out key details in support of the claim that his confession was involuntary.
These details include the following: (1) the confession followed on the heels of his phone call from Stacy, where she told him the only way they could save their relationship was for him to tell the truth, (2) the detectives repeatedly played on his desire to save the relationship and his religious beliefs in urging him to confess, (3) they made false statements (that a doctor had found microscopic tears in L.C.'s vagina), and (4) they made it seem like conviction was certain. In response to questions from defense counsel, both detectives conceded that they were aware that false confessions sometimes occur.
During the defense case, Alvarenga's attorney called two of Alvarenga's friends to testify regarding his relationship with Stacy. Both testified that Stacy was "controlling" and that Alvarenga would do "anything to please her."
Alvarenga testified that Stacy's phone call had a devastating effect on him. He stated that he was in a state of shock when the detectives showed up, and was so desirous of maintaining his relationship with Stacy that he falsely told them that he had engaged in sexual touching with L.C.
The jury convicted Alvarenga on all four counts. Alvarenga appealed to this Court, and we affirmed his conviction.
Alvarenga, 2013 WL 492864.
3. The post-conviction relief litigation
Alvarenga filed a timely pro se application for post-conviction relief in 2014. Alvarenga then filed an amended post-conviction relief application, with the assistance of counsel, asserting that Alvarenga's trial attorney was incompetent for "failing to properly attack the false confession by hiring an expert or withdrawing so that Alvarenga could hire an expert through court-appointed counsel." The amended application further asserted that his attorney's incompetence prejudiced the outcome of his trial. The amended application noted that Alvarenga was unable to obtain an affidavit from his trial attorney because he died in 2013.
Alvarenga's amended application was accompanied by two expert reports. First, Jeffrey Robinson, a criminal defense attorney, wrote that Alvarenga's trial attorney breached the standard for defense attorney competence. Robinson's report asserted that Alvarenga's trial attorney was incompetent because he waited until just days before trial was scheduled to start seeking a false confessions expert. Robinson also asserted that Alvarenga's trial attorney was incompetent in how he went about seeking public funding for a false confessions expert. He argued that Alaska Criminal Rules 39 and 39.1 only applied to defendants represented by public defense counsel and did not authorize the court to appoint an expert witness for a client represented by private counsel. Robinson claimed that the trial attorney acted incompetently by not moving to withdraw as counsel after the superior court denied his motion for funding for a false confessions expert, so that the Public Defender Agency could be appointed and hire a false confessions expert at public expense. Robinson asserted that a false confessions expert could have more effectively attacked the reliability of Alvarenga's confession than Alvarenga's trial attorney, who relied on common sense reasons to support the claim that Alvarenga falsely confessed to save his relationship with his wife.
The second expert report was from Dr. Deborah Davis, a psychologist and false confessions expert. Dr. Davis's report discussed at length the general factors regarding why suspects sometimes falsely confess. At the conclusion of the report, she discussed the reasons why Alvarenga's confession could be viewed as false.
The State moved to dismiss Alvarenga's amended application. The State argued that, given the unclear state of the admissibility of expert testimony on false confessions in Alaska (and nationally) in 2009, as evidenced by this Court's decisions in Vent v. State and McMillian v. State, Alvarenga had failed to show that all minimally competent criminal defense attorneys would have hired an expert on false confessions to testify at trial. The State argued that for this same reason, competent defense counsel could have opted to stay in the case after the motion for expert funding was denied. The State noted that it was far from certain that public defense counsel, if appointed, would have sought to hire a false confessions expert, been successful in that effort, and been successful in getting such testimony admitted at trial.
Vent v. State, 67 P.3d 661, 668-69 (Alaska App. 2003) (noting that other jurisdictions were split on the admissibility of expert testimony on false confessions); McMillian v. State, 2004 WL 759017, at *3-4 (Alaska App. Apr. 7, 2004) (unpublished).
In his opposition to the State's motion to dismiss, Alvarenga clarified that he was not asserting that all minimally competent defense attorneys would retain a false confessions expert in any case involving a purportedly false confession. Rather, he was asserting that all minimally competent attorneys would have done so under the circumstances of his case. Alvarenga argued that his attorney's incompetence in not withdrawing in favor of the Public Defender Agency was apparent from our statement in his direct appeal that the "obvious" next step was for his attorney to withdraw if he wanted public funding for an expert. Alvarenga argued that Vent and McMillian showed that expert testimony on false confessions was not categorically inadmissible in Alaska, but rather, that it was admissible under an "abuse of discretion" standard. Therefore, he claimed, a competent defense attorney would have tried to utilize a false confessions expert at trial where such testimony was vital to his defense.
Alvarenga, 2013 WL 492864, at *4.
The State's reply pointed out that our statement in Alvarenga's direct appeal - that the "obvious" next step was for his trial attorney to withdraw - did not mean that the attorney was ineffective for not having done so, or that all minimally competent attorneys would have withdrawn in the same situation. The State asserted that "[g]iven the uncertainty of the admissibility of false confession experts at the time under Alaska law, it certainly would not have been obvious to [Alvarenga's trial attorney] that all minimally competent attorneys would have withdrawn from the case in order to obtain expert testimony."
The superior court granted the motion to dismiss "for the reasons stated in the State's filings." This appeal followed.
Why we affirm the superior court's dismissal of Alvarenga's postconviction relief application
To present a prima facie case of ineffective assistance of counsel, a defendant must allege facts that, if proven true, show that the attorney's performance fell below the standard of the minimal competence expected of an attorney with ordinary training and skill in the criminal law. The actions of a trial attorney are presumed to be competent. In order to rebut this presumption, an applicant for postconviction relief must not only show that a proposed alternative course of action was superior to the course chosen by the trial attorney, but also that "no competent attorney would have done things as badly as [their] trial counsel did."
Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
Newby v. State, 967 P.2d 1008, 1016 (Alaska App. 1998).
Tucker v. State, 892 P.2d 832, 835 (Alaska App. 1995).
Whether to call an expert witness with respect to a particular issue at trial is a tactical decision reserved to defense counsel. Alvarenga acknowledges that in general, a reasonably competent defense attorney could have made a valid tactical decision that his case could have been defended without an expert on false confessions. Alvarenga also acknowledges that if his trial attorney had decided from the outset to forego expert testimony on false confessions and instead sought to discredit the confession as being coerced, such a decision would be a reasonable tactical decision. But Alvarenga argues that his trial attorney provided ineffective assistance of counsel because his decision to not present expert testimony on false confessions was the result of his inept handling of the motion seeking public funding for a false confessions expert, and his failure to withdraw from the case.
See Dunn v. Reeves, 141 S.Ct. 2405, 2410 (2021); Hinton v. Alabama, 571 U.S. 263, 275 (2014); Tucker, 892 P.2d at 835 n.4.
We agree with Alvarenga that the record supports the view that his trial attorney's preference was to call an expert witness in false confessions. But we disagree that this rendered his trial attorney's decision not to withdraw from the case incompetent. The question, properly framed, is whether all competent defense attorneys would have withdrawn so that Alvarenga could obtain publicly appointed counsel once it became clear that it would not be possible for Alvarenga's trial attorney to call an expert witness in Alvarenga's defense.
As we have just explained, Alvarenga concedes that a competent defense attorney could make a valid tactical decision that his case could be defended without an expert on false confessions. It therefore cannot be the case that all competent defense attorneys in his attorney's position would have elected to withdraw from the case, rather than continue to represent Alvarenga and go to trial without an expert witness.
In 2008-09, when Alvarenga's trial attorney was preparing for and then trying his case, there were no reported Alaska appellate decisions stating that expert testimony on the use of police interrogation tactics to induce false confessions was admissible. Existing Alaska authority tended to favor its exclusion on the basis that many of the salient points derived by scholars in this new field restated concepts that were common sense to a lay person and thus would not meaningfully assist a jury.Further, courts nationally remained split as to the admissibility of expert testimony on false confessions.
In Beagel v. State, 813 P.2d 699, 707-08 (Alaska App. 1991), we held that the trial court erred in excluding expert testimony on why the defendant's confession was false. However, the expert testimony was not regarding the effect of police interrogation tactics. Rather, it involved the defendant's amnesia and other specific mental attributes that caused the purportedly false confession, matters not ordinarily within the expertise of a lay person. By contrast, in Vent v. State, 67 P.3d 661, 667-70 (Alaska App. 2003) and McMillian v. State, 2004 WL 759017, at *3-4 (Alaska App. Apr. 4, 2004) (unpublished), this Court upheld trial court decisions to exclude such testimony and expressed skepticism of such testimony. On the day Alvarenga's trial started, we issued a third decision upholding a trial court's exclusion of such testimony, with a concurrence setting forth the view that such testimony was flatly inadmissible. See Smith v. State, 2009 WL 792800, at *4 (Alaska App. Mar. 25, 2009) (unpublished) and id. at *8-9 (Mannheimer, J., concurring).
See Barros v. State, 180 A.3d 823, 832-33 (R.I. 2018).
In such circumstances, we agree with the Rhode Island Supreme Court's resolution of this same issue in Barros v. State. Barros's confession was used against him at his 2008 murder trial. He later moved for post-conviction relief, asserting that his trial attorney was ineffective for not presenting an expert on false confessions. His trial attorney testified at an evidentiary hearing that he did not think of that possibility, and averred that his failure to do so was questionable since he had been to a seminar on false confessions several years prior to the trial. The superior court rejected the defendant's claim that this constituted ineffective assistance, and the Rhode Island Supreme Court affirmed. The court noted that "at the time of trial, courts around the country were divided on the admissibility of such evidence and remain divided on its admissibility." The court further noted that it had "never ruled on the admissibility vel non of such expert testimony." The supreme court concluded:
Id.
Id. at 826-27.
Id. at 830.
Id. at 832 (citing David A. Perez, The (In)Admissibility of False Confession Expert Testimony, 26 Touro L. Rev. 23, 24-25 (2010), then citing David A. Perez, Admissibility of Expert Testimony Regarding False Confessions, 11 A.L.R. 7th, §§ 13-27 (2016)).
Id. "Vel non" means "or not." Black's Law Dictionary (8th ed. 2004).
In view of these circumstances, it would strain rationality to rule that an attorney was constitutionally ineffective for not introducing expert testimony on false confessions. Certainly under an objective standard of reasonableness, trial counsel need not have produced expert testimony that this state has never held to be admissible - and when courts around the country are divided as to its admissibility.
Id.
We find this reasoning persuasive. Here, a competent defense attorney could think that a recording of the detectives questioning Alvarenga provided a sufficient basis to show the jury how the detectives' techniques overbore Alvarenga's will and caused him to falsely confess. Moreover, a competent defense attorney could think that Alvarenga's friends' testimony was sufficient to explain the dynamic of Alvarenga and Stacy's relationship. And when Alvarenga's trial attorney was preparing for trial, he was also aware that he could get Detective Sarber to admit that false confessions do occur, as he testified at a pretrial evidentiary hearing.
For these reasons, we conclude that a competent criminal defense attorney practicing at the time of Alvarenga's trial could have decided to defend Alvarenga's case without retaining a false confessions expert. Therefore, a competent defense attorney, upon learning that they would not be able to obtain funding for such an expert, could reasonably decide not to withdraw from the case.
Our conclusion is bolstered by the existence of numerous other Alaska cases, both before and after that time period, where defense attorneys have not used a false confessions expert and have opted to attack a purportedly false confession by either (1) drawing out through questioning the facts that support the claim that the defendant falsely confessed, and linking them together in closing argument, (2) having the defendant explain why they falsely confessed, or (3) using both methods. See Rogers v. State, 280 P.3d 582, 585 (Alaska App. 2012); Charliaga v. State, 157 P.3d 1053, 1054 (Alaska App. 2007); Closson v. State, 784 P.2d 661, 668 (Alaska App. 1989); Johnson v. State, 2016 WL 3220953, at *1 (Alaska App. June 8, 2016) (unpublished); Deremer v. State, 2015 WL 7201207, at *2 (Alaska App. Nov. 12, 2015) (unpublished); George v. State, 2014 WL 2937874, at *1 (Alaska App. June 25, 2014) (unpublished); White v. State, 2013 WL 2295429, at *6 (Alaska App. May 22, 2013) (unpublished); Carr v. State, 2007 WL 1228948, at *3 (Alaska App. Apr. 25, 2007) (unpublished).
Conclusion
The judgment of the superior court dismissing Alvarenga's amended postconviction relief application is AFFIRMED.