Opinion
Court of Appeals No. A-11520 No. 6311
04-20-2016
FREDERICK WILLIAM DAMER III, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Elizabeth W. Fleming, Attorney at Law, Kodiak, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. 1PE-09-50 CI
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Petersburg, Trevor Stephens, Judge. Appearances: Elizabeth W. Fleming, Attorney at Law, Kodiak, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Frederick William Damer III appeals the superior court's order dismissing his application for post-conviction relief. Because we find that Damer's application failed to state a prima facie case for relief, we affirm the superior court's decision.
Facts and proceedings through trial and appeal
Early in the morning of January 1, 2009, Lisa Garrison went to the Petersburg police station to report that she had been attacked by her boyfriend, Frederick Damer, in the home they shared. Garrison initially told Petersburg Police Officer Steve Scherrer that Damer had punched her, threatened her with scissors, and ripped clumps of hair from her head. A short time later, she added that Damer had also strangled her. When she attempted to call police for help, Damer destroyed her cell phone. At the time of this incident, Damer was awaiting trial on a previous charge of assaulting Garrison, and he was on bail release.
Officer Scherrer observed bruises beginning to form on the bridge of Garrison's nose, on both arms near her wrists, and near her left clavicle. She had "raccoon eye" bruising under both eyes, but no bruising on her neck. Her left eye was bloodshot and swollen. Several clumps of hair came off when she combed her hair with her hands. She declined medical treatment for her injuries.
Damer was charged with two counts of third-degree assault (one count for threatening Garrison with scissors and one count for threatening her with strangulation). He was also charged with fourth-degree criminal mischief for destroying her cell phone and with violation of the conditions of his release, interference with a report of a crime of domestic violence, and fourth-degree assault. The superior court joined for trial two additional counts of fourth-degree assault against Garrison pending from the earlier incident.
AS 11.41.220(a)(1)(A), AS 11.46.484(a)(1), AS 11.56.757, AS 11.56.745, and AS 11.41.230(a)(1), respectively.
During the trial, Garrison testified that Damer pinned her on the couch and strangled her to the point where she could not breath or swallow, and that she feared for her life. Garrison said that Damer alternated between strangling her and punching her with closed fists. Damer later testified, denying that he had hit Garrison, strangled her, or held scissors to her face.
During final argument, Damer's attorney pointed out that Garrison failed to mention strangulation when she first went to the police station, and only did so when she accompanied the officer to her house shortly thereafter. The attorney argued that the absence of bruising to Garrison's neck rendered her accusation of strangulation implausible:
[T]here's no dispute that he's as big as he is and he's got fists the size of my head. There's no dispute about that. There's just testimony about this. All these pictures, right away, later that day, three or five days later, however many it was, not a single photo of a bruise on the neck.
. . . .
The burden rests with the State. And to prove the choking they've brought in inconsistent testimony about how the choking happened and they haven't brought you a single photo of any bruising on her neck. Despite how big he is and despite all these bruises that they want to show you, they're not showing you evidence of what's charged.
The jury acquitted Damer of assaulting Garrison with scissors, of interfering with a report of domestic violence, and of assaulting Garrison on the earlier occasion. The jury convicted him of third-degree assault for threatening to strangle Garrison, a contemporaneous fourth-degree assault, criminal mischief, and violating the conditions of his release. Damer appealed his conviction for third-degree assault, and we affirmed that conviction.
Damer v. State, 2011 WL 2449189 (Alaska App. June 15, 2011) (unpublished).
Damer's claim for post-conviction relief
Prior to trial, Damer had written to his attorney and directed him to retain "any expert witnesses that [the attorney] may need to disprove [Garrison's] injuries and/or her mental capacity." But the defense attorney ultimately decided this was unnecessary.
Following his direct appeal, Damer filed an application for post-conviction relief, claiming that his trial attorney's decision not to hire a medical expert constituted ineffective assistance of counsel. Damer provided a report by Carol Klamser, a medical-legal expert. Klamser opined that if Garrison had been strangled for five to ten minutes (as Klamser understood Garrison's testimony), her neck would have been visibly bruised — a point Damer's attorney had made during his final argument to the jury.
Damer also provided an affidavit from his attorney averring that, prior to trial, the defense attorney had concluded that expert testimony was unnecessary. Discounting Damer's directive to retain an expert, the attorney decided that "the inconsistencies [in Garrison's statements] could be enough to acquit Mr. Damer of both fear assaults." The attorney further averred that the expense of retaining an expert was a factor in his decision.
The trial attorney's affidavit included his post-trial memorandum to the file in which he discussed his decision not to retain an expert:
[Damer] thinks I should have filed a motion for a new trial because an expert would have shown that [Garrison's] lack of injuries would have proved it was impossible that she was choked the way she testified. It's a fear assault though, and her testimony was so inconsistent that an expert couldn't have done anything.The memorandum also noted that the attorney had explained to Damer that "we couldn't get an expert for every single case, that the [Public Defender Agency] didn't have those kind of resources."
But after setting forth these facts tending to justify his trial strategy, the defense lawyer added a passage to his affidavit second-guessing his tactical decision to forego an expert:
After reading the report of the forensic expert hired in this case, I can see that if a forensic expert analyzed the case and testified, then that expert could impart conclusions similar to mine regarding the credibility of [Garrison's] testimony. In particular, the expert's scientific, technical, or other specialized knowledge could have assisted the jury to understand exactly how [Garrison's] inconsistencies undermined the State's allegation that Mr. Damer placed [her] in fear of imminent serious physical injury by means of a dangerous instrument.The defense lawyer concluded: "Presented with the same case again, with appropriate resources, I would absolutely pursue an expert evaluation."
The State filed a motion to dismiss, which Superior Court Judge Trevor Stephens granted. He found:
Damer has not shown that there are genuine issues of material fact with regards to whether [trial counsel] made a tactical decision not to present such expert testimony. The undisputed evidence in the record ... demonstrates that he made the tactical decision not to present the type of expert testimony now at issue.
[Additionally], Mr. Damer has not shown that there are genuine issues of material fact with respect to whether no competent criminal defense attorney would have made this decision. ... The only evidence presented is [trial counsel's] affidavit. [He] avers, in part, that he now believes that Dr. Klamser's testimony could have been helpful and that he now
believes that the sound approach is to consult with an expert before deciding whether or not to retain an expert. Such self-reproaching after-the-fact assessments by his trial counsel [are] not sufficient to create a genuine issue of material fact on the issue of whether no competent criminal defense attorney would have made the tactical decision in Mr. Damer's case to proceed without expert testimony.
Damer now appeals the superior court's dismissal of his petition for post-conviction relief.
Why we uphold Judge Stephens's dismissal of Damer's petition
To avoid dismissal of his petition, Damer had to plead a prima facie case of ineffective assistance of counsel. First, he had to offer some non-conclusory evidence that his lawyer's performance fell below "the range of competence displayed by [a lawyer] of ordinary training and skill in the criminal law." And second, he had to offer evidence tending to "create a reasonable doubt that the incompetence contributed to the outcome." "[T]he standard for ineffective representation is one of minimal competence," and "the law presumes that an attorney has acted competently and that the attorney's tactical decisions were sound."
Risher v. State, 523 P.2d 421, 424 (Alaska 1974).
Id. at 425.
State v. Jones, 759 P.2d 558, 568 (Alaska App. 1988).
Simeon v. State, 90 P.3d 181, 184 (Alaska App. 2004).
The question posed by the State's motion to dismiss was whether Damer's petition set forth a basis to conclude that foregoing an expert was so patently unreasonable that no competent attorney would have gone to trial without one. Here the record reveals that Damer's attorney made an affirmative tactical choice to point out the lack of bruising to Garrison's neck during his cross-examination of her and during his final argument and to forego making the identical point through expert testimony. Thus, Damer bore the burden at the pleading stage to do more than to simply propose a purportedly superior trial strategy; he was required to make a showing that his lawyer's chosen course fell below minimally acceptable standards:
To prevail on his claim of ineffective assistance of counsel, [a petitioner is] required to do more than arrive at the post-conviction relief hearing with a better idea than the one his trial counsel originally thought of. [A petitioner is] obligated to prove, not that his trial counsel could have done things better, but that no competent attorney would have done things as badly as his trial counsel did.
Tucker v. State, 892 P.2d 832, 835 (Alaska App. 1995). --------
Damer's petition does not reveal how he intended to meet this standard. The trial attorney affied that he had considered hiring an expert for trial, but that he later rejected that approach for tactical reasons. The attorney added that, after he reviewed the expert report presented in the post-conviction relief action, he concluded that expert testimony would have been helpful at trial. But nothing in Damer's petition revealed how Damer intended to prove, by clear and convincing evidence, that his trial attorney had fallen below the level of minimal competence.
The State pointed out this deficiency in its motion to dismiss. Rather than amending his petition, Damer argued that the trial attorney's affidavit amounted to a concession of malpractice — a claim the affidavit did not fairly support. The trial attorney merely affied that he had changed his mind and concluded that retaining an expert would have been a better course. But he stopped well short of conceding that no reasonable attorney would have followed his chosen trial strategy.
We conclude that the superior court did not err in dismissing the petition for failing to state a prima facie case.
Conclusion
We AFFIRM the superior court's dismissal of Damer's application for post-conviction relief.