Opinion
Court of Appeals No. A-11415 No. 6254
11-12-2015
RICHARD BARTON DEREMER III, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Shelley K. Chaffin, Law Office of Shelley K. Chaffin, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Criminal 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. 3PA-08-2432 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Appearances: Shelley K. Chaffin, Law Office of Shelley K. Chaffin, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
In 2006, Richard Barton Deremer III was convicted of first-degree murder, first-degree arson, and other related felonies for killing his neighbor in Big Lake and then setting the neighbor's house on fire. Deremer's convictions were affirmed by this Court on direct appeal. In 2008, Deremer filed an application for post-conviction relief, asserting that he was entitled to a new trial based on newly discovered evidence. The superior court ultimately dismissed Deremer's application on the pleadings, finding that Deremer had failed to show that the evidence qualified as "newly discovered" or that the new evidence was such that it would probably produce an acquittal at a new trial. The superior court also found that Deremer had failed to produce any non-hearsay evidence to support his claims.
Deremer now appeals the dismissal of his application for post-conviction relief, asserting that there were material facts still in dispute that required an evidentiary hearing to resolve. For the reasons explained here, we conclude that an evidentiary hearing was not required because we agree with the superior court's assessment that, even assuming the truth and admissibility of Deremer's newly discovered evidence, this is not the type of evidence that would probably produce an acquittal on retrial, given the nature and strength of the State's case against Deremer.
Our description of the underlying criminal case and trial are taken from Deremer's direct appeal. See Deremer v. State, 2008 WL 612871 (Alaska App. Mar. 5, 2008) (unpublished).
In November 2003, firefighters and state troopers responded to a residential fire in Big Lake. After the fire was under control, firefighters discovered a dead body on the couch. The medical examiner determined that the victim, David G. McKinney, died before the fire started and that he was shot in the head at close range with number 8 birdshot from a 12 gauge shotgun. The victim's skull also had a zippertooth embedded inside it.
During the initial investigation, troopers interviewed Deremer and his wife, Cynthia Estes, who was McKinney's cousin. Deremer told the troopers about a recent confrontation with McKinney. Deremer said that McKinney had come to their house and accused Estes of stealing McKinney's prescription medications, and that Deremer had used a baseball bat to force McKinney out.
Several months later, Deremer's cousin (Jason Chew), and his wife (Jamie Chew), and Deremer's former coworker (Aron Niles) contacted the police to report that Deremer had confessed to Jamie Chew and Niles that he had killed McKinney. The police obtained a Glass warrant and recorded a conversation between Deremer and his cousin, Jason Chew.
In this recorded conversation, Deremer readily admitted the murder and arson, and he provided details of the crimes that were consistent with the physical evidence. Deremer told Chew that he and his wife had formed their plan together and that they had communicated with hand-held radios while at McKinney's house. Deremer also told Chew that he shot McKinney in the head with birdshot, that he and his wife then broke into the safe, and that he (Deremer) lit a blow torch and set it against the door frame before leaving the residence.
After obtaining a search warrant, the police searched Deremer's house and found several items that Deremer mentioned in his recorded confession to Jason Chew, including the hand-held radios that Deremer claimed to have used during the crime and the blue duffel bag that he said he used to carry the shotgun.
Deremer was arrested and charged with first-degree murder, first-degree arson, first-degree burglary, and tampering with physical evidence.
AS 11.41.100(a)(1)(A).
AS 11.46.400.
AS 11.46.300(a)(1).
AS 11.56.610(a)(1).
Following Deremer's arrest, the troopers discovered that Deremer had borrowed a 12 gauge shotgun and a box of shells with number 8 birdshot from a friend (i.e., the type of gun and ammunition used in the murder). The troopers also discovered that Deremer had called the friend from whom he had borrowed the gun and told him to deny that he had lent Deremer anything.
At Deremer's trial, the State focused its case on Deremer's confessions and the corroborating physical evidence. Jason Chew, Jamie Chew, and Aron Niles testified for the State and Deremer's recorded confession to Jason Chew was also played for the jury.
Deremer was represented by attorney John Murtagh at trial. Murtagh argued that Deremer's confessions were false and that Deremer had been foolishly making outrageous, provocative, and untrue statements to his family and friends. Murtagh also argued that the true perpetrator was a man named Terry Sudbury, who had been identified as a potential suspect early in the police investigation.
Terry Sudbury had come to the police's attention as a potential suspect shortly after the murder occurred. Sudbury, who was awaiting trial on charges of robbing a pharmacy, told the police that he had "information" about a fire and murder in Big Lake. In response, the police obtained a Glass warrant to record Sudbury's conversations about the fire and the murder with his cellmate.
But after recording and reviewing Sudbury's conversations with his cell-mate, the police concluded that the conversations were "scripted" and that the details about the murder and arson were derived from public information available in news reports. The police therefore concluded that Sudbury had no personal knowledge and was not involved in the crimes.
At trial, Deremer was allowed to introduce the recorded conversations between Sudbury and his cellmate. Deremer's attorney then argued that these conversations demonstrated inside knowledge of the murder/arson, and the police had wrongly and prematurely ended their investigation of Sudbury, who was the true perpetrator of these crimes.
In rebuttal, the State called Sudbury as a witness. Sudbury testified that he knew nothing about McKinney's murder and that his conversations with his cellmate were scripted and an attempt to pretend that he knew something of value so that he could get a better deal on his pending charges.
The jury convicted Deremer on all charges. Deremer was sentenced to a composite term of 134 years to serve.
Deremer appealed his case to this Court, which affirmed both the convictions and the sentence.
Deremer, 2008 WL 612871, at *1. We note that Deremer's wife was also convicted of murder and her conviction was upheld on appeal. See Estes v. State, 249 P.3d 313 (Alaska App. 2011).
Deremer's initial pro se application for post-conviction relief and his post-conviction attorney's no merit certificate
Deremer subsequently filed a pro se application for post-conviction relief, raising numerous claims for relief including ineffective assistance of counsel and newly discovered evidence. With regard to the newly discovered evidence claim, Deremer alleged that he had been approached after trial by two different inmates who told him that Sudbury was well-known for loading his shotgun with unusual items such as zipperteeth. Deremer argued that this new evidence directly implicated Sudbury in the murder and entitled him to a new trial.
The superior court appointed a contract attorney from the Office of Public Advocacy to represent Deremer in his post-conviction case. Following her appointment, the attorney, Janella Kamai (Combs), filed a "no merit certificate" with the superior court, asserting that Deremer had no arguable claims for post-conviction relief. Based in part on this certificate of no merit, the superior court dismissed Deremer's pro se application for failure to state a prima facie case.
See Alaska R. Crim. Pro. 35.1(e)(2)(C); see also Griffin v. State, 18 P.3d 71, 76 (Alaska App. 2001).
See Griffin, 18 P.3d at 76 (holding that a trial court has a duty to review a no merit certificate and independently assess whether the applicant has any colorable claims).
Deremer appealed the dismissal of his post-conviction application in a pro se pleading to this Court. However, Kamai remained the attorney of record in the case.
On appeal, both the State and Kamai agreed that the "no merit certificate" was deficient on its face and that a remand for further proceedings was therefore necessary. This Court therefore vacated the superior court's dismissal of Deremer's application and remanded the case to the superior court for further proceedings. The question of whether Kamai should remain as Deremer's post-conviction attorney was not addressed in this Court's remand order.
On remand, Kamai continued as Deremer's attorney and conducted further investigation of Deremer's claims. She ultimately filed additional pleadings supple-menting Deremer's original pro se application for post-conviction relief.
As we discuss later, the current record does not indicate whether Deremer objected to his attorney's continued representation or whether he was ever given an opportunity to object. The record also does not indicate whether Deremer subsequently waived any prior objection to her continued representation after she began actively litigating his case.
The amended application for post-conviction relief
As part of the supplemental pleadings filed in support of Deremer's newly discovered evidence claim, Deremer's attorney submitted affidavits from Deremer, John Murtagh (Deremer's trial attorney), and Michele White (the investigator hired for Deremer's post-conviction case).
Deremer's affidavit stated that "two different inmates, on two separate occasions," initiated a conversation with Deremer in which they separately informed him that "Mr. Sudbury [sic] loaded his ammunition with random materials including zipperheads[.]"
Murtagh's affidavit stated that he learned from Deremer that "someone else" loaded his guns with zipperheads and that he (Murtagh) thought that he learned this before trial.
White's affidavit stated that she was hired to locate the inmates who told Deremer about Sudbury's gun-loading technique and that she was able to locate only one of the inmates. White recalled interviewing this inmate; he told her about "the many unusual items," including zipperheads, that Sudbury used to reload his gun. White did not explain why she failed to obtain an affidavit from the inmate.
See Allen v. State, 153 P.3d 1019, 1025-26 (Alaska App. 2007) (noting that post-conviction investigator's affidavit regarding a witnesses' statement to investigator should be accompanied by personal affidavit from witness or explanation of why a personal affidavit from witness could not be obtained).
The State moved to dismiss Deremer's application, asserting that Deremer had failed to show that the evidence was "newly discovered" or that it would have made any difference in the outcome of Deremer's trial. The attorney filed a response to the State's opposition to the petition for post-conviction relief.
The superior court subsequently notified the parties that, unless there were objections, the court intended to resolve this matter on the pleadings. Neither party objected.
The superior court then issued an order, ruling first that Deremer had failed to state a prima facie case for relief on any of his ineffectiveness claims (this ruling has not been challenged on appeal). The court also ruled that Deremer had failed to show that the "newly discovered" evidence about Sudbury's gun-loading technique was not known prior to trial, and that Deremer had also failed to support his claim with non-hearsay evidence. Lastly, the court ruled that, even assuming arguendo that Deremer was able to show that the evidence qualified as "newly discovered" and that Deremer could produce admissible evidence of Sudbury's loading techniques, Deremer's claim would still fail because it was not likely that a jury would acquit Deremer at a retrial based on this new evidence given the strength of the State's case against him — which included three "highly credible" confessions by Deremer to three different people. The judge also noted that he had been the trial court judge in Deremer's case. He had therefore heard the witnesses in the State's case (including Sudbury's testimony), and he had found the testimony of these witnesses to be credible.
See Salinas v. State, 373 P.2d 512, 514 (Alaska 1962); Lewis v. State, 901 P.2d 448, 449-50 (Alaska App. 1995).
Based on these rulings, the superior court dismissed Deremer's application for post-conviction relief. Deremer now appeals.
Why we affirm the superior court's dismissal of Deremer's application for post-conviction relief
On appeal, Deremer argues that the superior court erred in dismissing his application on the pleadings without holding an evidentiary hearing. Deremer asserts that there were material issues of fact still in dispute, including when exactly Deremer and his trial attorney learned about Sudbury's gun-loading technique and whether the other inmate could be located.
We conclude that the superior court was not required to hold an evidentiary hearing in this case because we agree with the superior court's ultimate conclusion that, even assuming the disputed facts were resolved in Deremer's favor, Deremer cannot show that this newly discovered evidence would probably produce an acquittal at retrial. As the superior court noted, the State's case against Deremer was strong and included three highly detailed and consistent confessions. Given the strength of this evidence (and the court's own assessment of the credibility of the State's witnesses at trial), we find that the superior court could reasonably conclude that there was no likelihood that the newly discovered evidence would produce a different result on retrial. We therefore affirm the dismissal of Deremer's application for post-conviction relief.
See Salinas, 373 P.2d at 514; Lewis, 901 P.2d at 449-50.
Deremer also separately argues that he is entitled to a remand because he claims that his post-conviction attorney was "clearly ineffective" in failing to request an evidentiary hearing and failing to properly plead his newly discovered evidence claim. The State argues that there is no need for a remand and that Deremer's claims of ineffectiveness against his post-conviction attorney can be raised through a separate application for post-conviction relief under Grinols v. State.
Grinols v. State, 74 P.3d 889, 896 (Alaska 2003). --------
We agree that any claims of ineffectiveness that Deremer may have against his post-conviction counsel cannot be litigated on the record currently before us. As we noted earlier, it remains unclear why Deremer continued to be represented by the same appointed attorney who earlier filed a no merit certificate in Deremer's case—a no merit certificate that the attorney herself acknowledged was deficient on its face. But we also note that Deremer's post-conviction appellate attorney has not claimed that Deremer was entitled to new counsel on this basis — suggesting that Deremer may have waived any objection to this continued representation.
Given the current record, we conclude that any claims of ineffectiveness of post-conviction counsel must be litigated in a separate second application for post-conviction relief, where these claims can be properly raised and the record fully developed, as necessary.
Conclusion
We AFFIRM the judgment of the superior court.