Opinion
Court of Appeals No. A-11021 Trial Court No. 3AN-06-13806 CI No. 5861
07-25-2012
MICHAEL J. DAVIS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Olena Kalytiak Davis, Attorney at Law, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Fred Torrisi, Judge.
Appearances: Olena Kalytiak Davis, Attorney at Law, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Michael J. Davis was convicted of driving under the influence and driving with a suspended license after police found him slumped over his steering wheel at the scene of an accident. Davis filed an application for post-conviction relief, alleging that his trial attorney was ineffective for failing to ask whether the prospective trial jurors knew Davis, for failing to call a witness who claimed that she was driving the vehicle, and for failing to obtain independent testing of blood samples collected from the vehicle. Superior Court Judge Fred Torrisi dismissed Davis's application.
Davis repeats his allegations on appeal, but we affirm. We conclude that Davis's application did not rule out the likelihood that his trial attorney made a reasonable, tactical decision not to call the witness in question. And Davis failed to support his application with evidence establishing that he suffered prejudice related to any of his three claims.
Background
Early one summer morning, Davis and an acquaintance, Cassandra Harris, left a party hosted at the home of Felicia Steward. Steward saw Harris enter the driver's side of Davis's vehicle and Davis enter the passenger's side. At some point after leaving the party, Davis's vehicle smashed into a tree near Boniface Parkway and DeBarr Road in Anchorage. When police arrived, Davis was in the driver's seat of the vehicle and was slumped over the steering wheel. Davis had a laceration to his chin and appeared to be disoriented. Davis's blood alcohol level was .275. Davis was ultimately convicted of felony driving under the influence and driving with a suspended license.
AS 28.35.030(a)(2),(n).
AS 28.15.291(a)(1).
After the jury was discharged, Davis filed a motion for a new trial. Davis argued that a juror withheld material information during jury selection. Davis explained that one of the jurors, Stephen Manuel, was his pastor from Bethel Chapel in Anchorage. Davis stated that he did not recognize Manuel during jury selection because Davis was not wearing his glasses. Davis also asserted that he did not notice that Manuel was on the jury until after the verdict.
The trial court denied Davis's motion for a new trial, and Davis appealed. On appeal, we noted that the parties had not asked the jurors whether they knew Davis. We accordingly concluded that Davis failed to show that Manuel consciously withheld material information.
Davis v. State, Mem. Op. & J. No. 5564, 2010 WL 487432, at *2 (Alaska App. Feb. 10, 2010).
Id. at *1-3.
Davis filed a petition for writ of habeas corpus that was converted into an application for post-conviction relief. Judge Torrisi granted the State's motion to dismiss Davis's application, and Davis now appeals.
Discussion
When we review an order dismissing an application for post-conviction relief, we accept as true the well-pleaded allegations in the application and determine whether those facts, if proven, would entitle the applicant to relief. In order to adequately allege ineffective assistance of trial counsel, the application must show that counsel failed to perform at least as well as any lawyer with ordinary training and skill in criminal law. The applicant is also "required to show prejudice by creating a reasonable doubt that counsel's incompetence contributed to the outcome."
DeJesus v. State, 897 P.2d 608, 617 (Alaska App. 1995).
Risher v. State, 523 P.2d 421, 424 (Alaska 1974).
Lott v. State, 836 P.2d 371, 376 (Alaska App. 1992) (discussing Risher, 523 P.2d at 424-25).
However, it is not sufficient for an applicant to allege these elements in conclusory terms. The application must include "[a]ffidavits, records, or other evidence supporting [the] allegations or ... recite why they are not attached."
LaBrake v. State, 152 P.3d 474, 481 (Alaska App. 2007).
Davis failed to adequately allege that his trial attorney provided ineffective assistance when questioning Pastor Manuel.
Davis's application alleged that his trial attorney provided ineffective assistance of counsel during jury selection by failing to ask Pastor Manuel whether he knew Davis. According to Davis, he had extensive contacts with Manuel: Manuel participated in Davis's wedding ceremony, Manuel baptized Davis and his ex-wife, and Manuel knew that Davis and his wife were divorced. Davis alleged that his attorney's failure to question Manuel during voir dire "could have tainted the outcome of Mr. Davis's trial."
Davis filed an affidavit from his trial attorney, who explained that he was unable to remember why he did not ask whether any of the prospective jurors knew Davis. Davis also filed an affidavit from Pastor Manuel, who explained that he recognized Davis during voir dire. However, Manuel stated that he did not believe that his acquaintance with Davis impaired his ability to consider the evidence and render a fair verdict.
In a similar case, a defendant named Bryant argued that his attorney was ineffective for failing to challenge a juror during voir dire. The juror disclosed during voir dire that he was a good friend of the investigating trooper, who was a witness in the case. But the juror also stated that he would not give extra weight to the trooper's testimony and that he was impartial. Bryant's attorney did not challenge the juror for cause and did not exercise a peremptory challenge.
Bryant v. State, 115 P.3d 1249, 1254-55 (Alaska App. 2005).
Id. at 1255.
Id. at 1255-56.
Id.
On appeal, Bryant's only allegation of prejudice was his assertion that his attorney's error contributed to his conviction. We noted that a defendant claiming juror bias must attach evidence supporting such a claim. We concluded that the evidence of the juror's familiarity with the trooper was not sufficient to require the trial court to presume that the juror was biased.
Id. at 1255.
Id.
Id. at 1256.
In Davis's affidavit, he admitted that his trial attorney gave him the jury list to review prior to trial. Davis asserted that Pastor Manuel was biased against him, but he offered no convincing basis for this speculation. In response, Manuel filed an affidavit swearing that he was impartial and that his acquaintance with Davis did not affect his decision. We conclude that Davis failed to make a prima facie showing that his trial attorney's performance during voir dire contributed to the verdict. The superior court did not err when it summarily dismissed this claim.
Davis failed to show that he had a prima facie case that his trial attorney rendered ineffective assistance of counsel by failing to call Harris as a witness.
Davis also alleged that his trial attorney was ineffective for failing to call Cassandra Harris as a witness at trial. Harris was the woman who left Steward's home with Davis. Davis asserted that Harris's testimony would have corroborated his claim that Harris was the driver of the vehicle at the time of the accident.
In his affidavit, Davis's trial attorney explained that he originally intended to call Harris as a witness because she claimed that she was the driver of the vehicle at the time of the accident. But the trial attorney later discovered that Harris told a police officer that she was not driving the vehicle at the time of the accident. The trial attorney understood that the State was prepared to call the police officer as a witness to rebut Harris's testimony. The trial attorney therefore decided not to call Harris because he did not want to risk endorsing Harris's potential perjury.
As a threshold matter, Davis's claim appears to be deficient because he did not submit an affidavit from Harris in support of this part of his application. When a defendant claims that their trial attorney failed to present important evidence because of incompetent trial tactics, "the defendant must furnish the court with affidavits, depositions, or reports of the witnesses who stand ready to provide this evidence — or, failing this, the defendant must explain to the court why the witnesses' statements are unobtainable." Davis's claim is deficient because he did not present an affidavit from Harris to establish the content of her testimony or explain why he was unable to obtain such an affidavit.
Allen v. State, 153 P.3d 1019, 1025 (Alaska App. 2007).
Moreover, even if Davis had adequately documented Harris's proposed testimony, he failed to adequately allege that his trial attorney's tactical decision not to call her was unreasonable. When challenging an attorney's tactical choice, the defendant must demonstrate that the tactic was unreasonable — meaning, it is a tactic that no competent attorney would adopt under the circumstances. We have previously recognized that a trial counsel may make a reasonable tactical decision not to call a defense witness due to counsel's concerns about the witness's lack of credibility.
Simeon v. State, 90 P.3d 181, 184-85 (Alaska App. 2004).
See Brown v. State, 803 P.2d 887, 890 (Alaska App. 1990).
In the present case, the trial attorney's affidavit indicated that he made a tactical decision not to call Harris to the stand because of her conflicting statements and his concern that she would perjure herself. The attorney's assertion is consistent with the fact that another witness testified that Harris was driving when she left the party with Davis. We conclude that the superior court properly dismissed this claim because Davis failed to show a prima facie case.
Davis failed to show that he had a prima facie case relating to blood spatter evidence.
Davis also alleged that his trial attorney was ineffective for failing to hire a forensic expert to evaluate whether blood stains in the vehicle belonged to more than one person. Davis claimed that, if the blood stains belonged to more than one person, this evidence might have supported his claim that there was more than one person in the car at the time of the accident. In his affidavit, Davis's trial attorney explained that he was unable to recall why he did not retain a forensic expert.
When an applicant for post-conviction relief challenges their "trial attorney's failure to pursue avenues of investigation or cross-examination, it is the petitioner's burden to produce evidence 'to show that independent testing would likely have yielded exculpatory evidence, [or] that potential witnesses would actually have given favorable testimony, or that additional cross-examination would have weakened the state's case'." Mere conclusory or speculative allegations of harm will not suffice to show incompetence or actual prejudice.
State v. Savo, 108 P.3d 903, 911-12 (Alaska App. 2005) (quoting State v. Jones, 759 P.2d 558, 573-74 (Alaska App. 1988)) (alteration in original).
Jones, 759 P.2d at 573.
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In this case, Davis failed to provide any evidence to show that an expert would have provided favorable testimony or that independent testing would have yielded exculpatory evidence. We conclude that Davis failed to make an adequately supported allegation of ineffective assistance of counsel on this claim.
Conclusion
We AFFIRM the superior court's order dismissing the application for post-conviction relief.