Opinion
Court of Appeals No. A-11185 No. 6077
08-06-2014
JONATHAN L. ANDERSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Marcelle K. McDannel, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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. 3AN-04-13602 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael R. Spaan, Judge. Appearances: Marcelle K. McDannel, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Jonathan L. Anderson appeals the superior court's dismissal of his petition for post-conviction relief. Anderson alleged that he received ineffective assistance from two attorneys who represented him during the proceedings in his underlying criminal case. (One of these attorneys represented him during pre-trial proceedings, and the other represented him at trial.) The superior court dismissed Anderson's petition because the court concluded that, with respect to each of these attorneys, Anderson's petition failed to set forth a prima facie case of ineffective assistance of counsel.
For the reasons explained in this opinion, we agree with the superior court, and we therefore affirm the superior court's dismissal of Anderson's petition for post-conviction relief.
Basic description of the underlying criminal case against Anderson
The facts of Anderson's underlying criminal offenses are described in this Court's opinion resolving Anderson's direct appeal: Anderson v. State, 123 P.3d 1110, 1111-12 (Alaska App. 2005).
In the early morning hours of July 19, 2001, Jonathan Anderson and Angela Engstrom broke into the house of Raymond Ward. Ward and his girlfriend came out of their bedroom to investigate, but Anderson forced them back into the bedroom at gunpoint. In the bedroom, Anderson put a gun to Ward's head and demanded money. Ward told Anderson he did not have any money, but he offered to write Anderson a check. Anderson responded by shooting Ward in the neck.
Despite being shot, Ward managed to walk to his kitchen, where he retrieved $140 in cash. After Ward gave Anderson this cash, Anderson and Engstrom left the house and drove off in a brown car. Ward's girlfriend then called 911.
The police responded, located the brown car, and started chasing it. During this chase, Anderson tossed various articles out of the car: the handgun that was used in the shooting, a magazine for this handgun, and a box of matching ammunition. The police were eventually able to stop the car, and they arrested Anderson and Engstrom. Ward's girlfriend was brought to the scene, and she identified Anderson as the man who had broken into the house and shot Ward.
Anderson was indicted on charges of first-degree robbery, first-degree assault, third-degree assault, first-degree burglary, and third-degree weapons misconduct (because he carried a concealable firearm, and he had previous felony convictions).
Anderson's claim against the attorney who represented him during pre-trial proceedings
During pre-trial proceedings, Anderson was represented by attorney Matthew Claman. In his petition for post-conviction relief, Anderson asserted that Claman was incompetent for failing to investigate and pursue a potential challenge for cause against the assigned trial judge, Superior Court Judge Larry D. Card.
To support this claim, Anderson relied on the events of a bail hearing that took place before Judge Card on May 28, 2002. At this hearing, Judge Card announced on the record that he knew the victim, Raymond Ward:
The Court: I'm personally acquainted with Mr. Ward; I've known him for years, [although] we haven't seen each other for years, either[.] So — but I know who Mr. Ward is.Nothing else was said about this matter.
Mr. Ward: It's good to see you, Your Honor.
At a subsequent bail hearing in early August, Claman asked the court to reduce Anderson's bail from $50,000 with a third-party custodian to $5000 if Anderson agreed to live in a community residential center. Ward (because he was the victim of the crime) participated telephonically at this hearing.
Ward adamantly opposed any reduction of Anderson's bail. Ward also expressed great displeasure over what he perceived to be the unjustifiably lenient treatment given to Anderson's co-defendant, Angela Engstrom — lenient treatment that Ward attributed to the fact that Engstrom was white and that he (Ward) was African-American. (Both Judge Card and Anderson are also African-American.)
At the end of his impassioned statement, Ward told the court, "I'm sorry to vent my frustration, Your Honor. You're an honorable and respectable man, and you're my friend. I'm sorry, but that's how I feel, sir." Judge Card responded as follows:
The Court: Thank you for expressing your thoughts, sir. [But] I have to follow the law, and I'm going to follow the law. I appreciate your thoughts; and people who become judges have to have thick skin. So, I respect your point of view, but I must follow the law at all times.
At the close of the bail hearing, Judge Card rejected Mr. Claman's request to reduce the monetary component of Anderson's bail to $5000. However, the judge told Claman that he should come back to court with a revised bail proposal. Specifically, the judge told Claman: "[Some] reduction is appropriate, but not to $5000. ... There is a reasonable bail that could be set, but $5000 is not enough." The judge suggested that Claman consult with Anderson's family and with the district attorney's office, and then make a renewed bail application.
In Anderson's petition for post-conviction relief, he asserted that Claman was incompetent for failing to challenge Judge Card's participation in the criminal case, given the judge's friendship with Raymond Ward. But Claman filed an affidavit in which he explained that he had thought about challenging Judge Card, but he concluded that Anderson would be better off with Judge Card than with any potential replacement judge (who presumably could not be challenged):
I decided[,] both because Mr. Anderson and Judge Card are African American and because other judges who might be assigned to the case might be less receptive to Mr. Anderson than Judge Card[,] that I would not seek to recuse Judge Card.
Anderson did not offer any other evidence concerning the relationship between Ward and Judge Card, nor did Anderson offer anything to contradict Mr. Claman's statement that he made a conscious tactical decision not to challenge Judge Card. That being so, the sole question before the superior court was whether the record of the two court hearings (recited above) raised a litigable issue as to whether Claman's tactical decision was incompetent — i.e., was so unreasonable that no competent criminal defense attorney would make that decision.
This question, in turn, really raises two issues: (1) Do the facts recited in Anderson's petition for post-conviction relief establish a reasonable basis for believing that there was, indeed, a valid ground for disqualifying Judge Card? And if so, (2) do the facts recited in Anderson's petition establish a reasonable basis for concluding that Claman acted incompetently when he chose not to pursue this disqualification?
Turning to the first issue, we conclude that the facts recited in Anderson's petition do not establish a reasonable basis for believing that there was a valid ground to challenge Judge Card.
The two court hearings that Anderson relies on show that Judge Card had been acquainted with Ward for a long time, and that Ward referred to the judge as "my friend". But Judge Card also stated that he had not seen Ward in years. And, at the August bail hearing, Judge Card stated that he was ready to reduce Anderson's bail to some degree, even though it was clear that Ward adamantly opposed any reduction.
As this Court explained in Phillips v. State, 271 P.3d 457 (Alaska App. 2012), the fact that a judge is acquainted with the alleged victim of the crime generally does not require the judge's disqualification:
There are many levels or degrees of friendship in our society. Thus, when a question arises as to whether a judge's acquaintance or friendship with a particular person requires the judge's disqualification, the answer must ultimately turn on the specific facts of the case — in particular, the precise nature of the judge's relationship with that person, and the way in which that person is connected to the litigation.Phillips, 271 P.3d at 469-470.
. . .
But even though each case must turn on its facts, the literature on this subject provides guidelines for assessing this issue. In Richard E. Flamm's treatise, Judicial Disquali-fication: Recusal and Disqualification of Judges (2nd ed. 2007), he notes that judges "[are not] expected to withdraw from society", id. at 194, and he then states:
Id. at 195 (collecting cases).
[I]t is generally agreed that the mere fact that a judge maintains an ordinary social relationship ... either with [one or more] parties to the proceeding or with the attorneys ... does not provide a valid basis for disqualifying that judge from presiding over proceedings involving [these] persons.
This same guideline applies to situations where the judge is socially acquainted with the alleged victim in a criminal case. According to the treatise, "the fact that the judge may [be] acquainted with [the alleged] victim of the crime [the] defendant [is] accused of committing is generally deemed to be insufficient to mandate [the judge's] disqualification". Id. at 206.
In Anderson's case, the content of his petition for post-conviction relief gives no reason to think that Judge Card's relationship to Raymond Ward was of such a nature as to require the judge's disqualification, either for actual bias or for the appearance of bias.
(As this Court explained in Phillips, Alaska appellate decisions are in conflict as to whether a judge can be removed from a case, over their objection, based solely on a reasonable appearance of bias (as opposed to actual bias). 271 P.3d at 463-67. We did not resolve this legal conflict in Phillips. Rather, we decided Phillips under the assumption that a judge could be removed from a case based solely on the appearance of bias. We do the same thing here in Anderson's case.)
Because the facts recited in Anderson's petition for post-conviction relief do not establish a reasonable basis for believing that there was a valid ground for disqualifying Judge Card, Anderson's petition fails to set forth a prima facie case that Claman acted incompetently.
Anderson's claim against the attorney who represented him at trial
Anderson was represented at trial by another attorney, Sidney Billingslea. At the beginning of the trial, Ms. Billingslea reserved her opening statement. Later, after the prosecutor concluded the State's case-in-chief, Billingslea asked Judge Card to address Anderson personally and ascertain whether he wished to testify. When Anderson announced that he intended to testify, Billingslea proceeded directly to the presentation of the defense case, without giving an opening statement.
In his petition for post-conviction relief, Anderson alleged that Billingslea was incompetent for failing to give an opening statement.
In response to Anderson's allegation of incompetence, Billingslea filed an affidavit in which she explained that she did not give an opening statement because Anderson refused to tell her whether he would testify, or what he might say if he took the stand. Throughout the trial, Anderson refused to discuss the details of the case with Billingslea. Even though Billingslea repeatedly asked Anderson to tell her whether he intended to testify, and (if so) what his testimony was going to be, Anderson would only reply, "All would be revealed."
Thus, when the State rested its case-in-chief, Billingslea had no defense witnesses (other than, potentially, Anderson) — and she still did not know whether Anderson intended to take the stand, or what he intended to say if he did take the stand. Given the situation, Billingslea asked Judge Card to address Anderson personally and find out whether he wished to take the stand. But when Anderson announced that he would testify, Billingslea still did not know what he was going to say. So she gave no opening statement; she simply called Anderson to the stand so that he could begin his testimony.
This was not incompetent.
In his brief to this Court, Anderson argues that even though Billingslea did not know what he intended to say when he took the stand, Billingslea still might have used an opening statement to point out weaknesses in the State's case. But a competent defense attorney could reasonably decide that this was more properly the function of the defense summation.
Moreover, given the fact that Anderson would not divulge what he intended to say when he took the stand, a competent defense attorney could reasonably decide that it was better to refrain from giving an opening statement rather than risk saying things that might contradict or undercut the testimony that Anderson was about to give.
For these reasons, Anderson's petition fails to set forth a prima facie case that Billingslea acted incompetently.
Conclusion
The judgement of the superior court is AFFIRMED.