Opinion
A-14074
12-04-2024
AIRJETIS ESPINAL, a/k/a Airjelis Espinal, Appellant, v. STATE OF ALASKA, Appellee.
Howard W. Anderson III, Truluck Thomason LLC, Greenville, South Carolina, for the Appellant. Seneca Theno Freitag, 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UNPUBLISHED See Alaska Appellate Rule 214(d).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-15-04774 CI, Herman G. Walker Jr., Judge.
Howard W. Anderson III, Truluck Thomason LLC, Greenville, South Carolina, for the Appellant.
Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Harbison and Terrell, Judges, and Bolger, Senior Supreme Court Justice. [*]
MEMORANDUM DECISION
HARBISON, Judge
Airjetis Espinal appeals the superior court's denial of his application for post-conviction relief alleging that his trial attorney provided ineffective assistance of counsel. For the reasons we explain in this opinion, the superior court did not err in determining that Espinal's attorney's performance fell below the standard of competence. However, because the superior court provided irreconcilable findings on the question of whether the attorney's incompetence prejudiced Espinal, we remand this case to the superior court for clarification.
Background facts and proceedings
In January 2007, Espinal picked up four female strangers in his car over the course of one night - M.T., K.T., J.L., and P.M. Once in his car, Espinal threatened each woman with violence, and engaged or attempted to engage each woman in sexual penetration. For this conduct, Espinal was charged with six counts of first-degree sexual assault (of M.T., K.T., and P.M.), one count of attempted first-degree sexual assault (of J.L.), one count of attempted first-degree murder (of J.L.), and four counts of third-degree assault (of M.T., K.T., J.L., and P.M.).
AS 11.41.410(a)(1), AS 11.41.410 & AS 11.31.100(a), AS 11.41.100 & AS 11.31.100(a), and AS 11.41.220(a)(1)(A), respectively.
Espinal's case proceeded to a jury trial. The State called M.T., K.T., J.L., and P.M. to testify, and each woman testified that Espinal threatened them with a gun and sexually assaulted them.
The jury reached a verdict on nine counts. It found Espinal guilty of four counts of third-degree assault but acquitted him of five counts of first-degree sexual assault. The jury failed to reach a verdict on the remaining three counts - attempted first-degree sexual assault of J.L., attempted first-degree murder of J.L., and one count of first-degree sexual assault of P.M. Accordingly, the court declared a partial mistrial.
The State elected to retry Espinal on the counts that resulted in a mistrial. At trial, the State called J.L., P.M., and M.T. to testify. The State elicited evidence that Espinal sexually assaulted P.M., and that he physically assaulted J.L. and attempted to sexually assault her. Additionally, the State elicited evidence that Espinal engaged in nonconsensual sexual conduct for which he had been acquitted during the first trial. This included evidence of three acts of sexual assault of P.M as well as one act of sexual assault of M.T.
In response, the defense attorney introduced evidence that Espinal had been acquitted of the sexual assault of M.T. However, the defense attorney did not introduce evidence that Espinal had been acquitted of three acts of sexual assault of P.M. Instead, after the defense rested its case, Espinal's attorney requested a jury instruction that Espinal had been acquitted of those three offenses. The superior court rejected this proposed instruction.
The second jury found Espinal guilty of first-degree sexual assault of P.M. and attempted first-degree sexual assault of J.L. The jury also found Espinal guilty of third-degree assault of J.L. (a lesser included offense of the charged offense of attempted first-degree murder).
Espinal filed a direct appeal raising several challenges to these three convictions. On appeal, we affirmed the trial court's refusal to give the requested jury instruction, holding that the jury instruction requested contravened Alaska Rule of Evidence 203(c) and would have been procedurally unfair to the State. However, we ultimately found merit to other arguments made by Espinal and reversed his conviction for the first-degree sexual assault of P.M. We affirmed his convictions for the attempted first-degree assault and third-degree assault of J.L.
Espinal v. State, 2013 WL 6576734, at *6-7 (Alaska App. Dec. 11, 2013) (unpublished); see Hess v. State, 20 P.3d 1121, 1126-27 (Alaska 2001) (holding that when the State offers evidence that the defendant committed another crime or wrong, the defense may respond by introducing evidence that the defendant was previously brought to trial and acquitted of that wrongful conduct, or by asking the trial judge to take judicial notice of this fact).
Espinal, 2013 WL 6576734, at *1-2, *9.
Espinal then filed an application for post-conviction relief. In his application, Espinal alleged, inter alia, that his trial attorney had provided ineffective assistance of counsel by failing to introduce evidence that a first jury had acquitted him of three acts of first-degree sexual assault against P.M. Following an evidentiary hearing, the superior court found that the attorney's performance fell below the standard of competence by failing to introduce evidence of these acquittals.
The court issued a written order explaining this ruling. In its order, the superior court found that the defense attorney had recognized the importance of introducing evidence that Espinal was acquitted of the three counts of sexual assault against P.M., but had not followed the correct procedure to do so. The court also found that the attorney's decision to request a jury instruction after the close of evidence was an oversight, rather than a sound tactical decision. The court thus found that the attorney's failure to admit evidence of Espinal's acquittals was incompetent.
Next, the superior court considered whether Espinal had been prejudiced by his attorney's subpar performance. In its analysis of the performance prong, the court made contradictory rulings. In adjacent sentences, the court stated that evidence of Espinal's acquittals "may have" caused the jury to doubt Espinal's guilt, and also that the jury's ability to issue a fair and impartial verdict "was not" impacted by not admitting evidence of the acquittals:
Having made a finding that trial counsel was ineffective, this court must find that counsel's lack of competency contributed to the outcome of Mr. Espinal's case. It is clear that there is a reasonable probability that evidence of Mr. Espinal's prior acquittals involving P.M. may have placed the factfinder in reasonable doubt as to his guilt. However, the factfinder's ability to issue a fair and impartial
verdict was not impacted by trial counsel's failure to introduce evidence of Mr. Espinal's acquittals.(Emphasis added.) Despite these contradictory findings, the court denied Espinal's application for post-conviction relief.
This appeal followed.
Why we uphold the superior court's finding that the defense attorney's performance fell below the objective standard of competence
Espinal appeals the superior court's denial of his application for postconviction relief. Espinal does not challenge the superior court's favorable ruling that his attorney's performance was deficient, but he does challenge the court's unfavorable ruling that his attorney's deficient performance did not contribute to his convictions.
On appeal, the State argues that Espinal failed to prove either the performance or the prejudice prongs under Risher v. State.
Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
In Risher, the Alaska Supreme Court adopted a two-pronged test for evaluating ineffective assistance of counsel claims that is similar to the federal standard set out in Strickland v. Washington. The first prong, the performance prong, requires the defendant to prove that their attorney performed below an objective standard of minimum competence. Under Alaska law, the defendant must show that the attorney's performance fell outside that of "a lawyer with ordinary training and skill in the criminal law," and under federal law, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." There is a strong legal presumption that trial counsel was competent, and that their actions were motivated by sound tactical considerations.
Compare Risher, 523 P.2d at 425 (holding that counsel is ineffective when the attorney performs below the standard of competence and there is a reasonable possibility the attorney's deficient performance prejudiced the outcome), with Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) (holding that counsel is ineffective when the attorney's performance was deficient and there is a reasonable probability that, but for the attorney's deficient performance, the outcome would have been different).
See Risher, 523 P.2d at 425.
Id. at 424.
Strickland, 466 U.S. at 687-88.
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
The second prong, the prejudice prong, requires a showing that the attorney's performance likely affected the defendant's case. Under Alaska law, the defendant must show a reasonable possibility that "the lack of competency contributed to the conviction," and under federal law, the defendant must show a "reasonable probability" that but-for counsel's deficient performance, "the result of the proceeding would have been different."
Risher, 523 P.2d at 424-25.
Id. at 425; State v. Steffensen, 902 P.2d 340, 342 (Alaska App. 1995).
Strickland, 466 U.S. at 694.
Espinal argues that his attorney's performance during his second trial was legally deficient. As we have explained, during Espinal's second trial, the State introduced evidence that Espinal engaged in nonconsensual vaginal sex with M.T. and three acts of nonconsensual sex with P.M. - conduct that Espinal was acquitted of at his first trial. In response to M.T.'s testimony, Espinal's defense attorney introduced evidence that Espinal had been acquitted of sexually assaulting M.T. However, the attorney did not introduce evidence that Espinal was acquitted of the three counts of sexual assault against P.M. Instead, after the evidence had closed, Espinal's attorney requested a jury instruction that would inform the jury of these acquittals involving P.M.
The superior court declined to issue this jury instruction and we affirmed this decision on appeal. Espinal then filed an application for post-conviction relief. Espinal argued, inter alia, that his attorney was ineffective for not making a timely request to admit the acquittals involving P.M.
The superior court ruled that Espinal presented sufficient evidence to rebut both the presumption of competence and the related presumption that his attorney's decision to forego admitting evidence of the acquittals was tactical. The court noted that Espinal's defense attorney testified at the evidentiary hearing that she intended to introduce evidence of the acquittals involving P.M., and that she did not recall having any tactical reason for failing to do so. The superior court also pointed out that the attorney had used the correct procedure for admitting evidence of the acquittal involving M.T., and that this same procedure could have been used to admit evidence of the acquittals involving P.M. Furthermore, during the evidentiary hearing, Espinal's defense attorney and his appellate attorney both testified about the importance of placing evidence of the acquittals before Espinal's jury.
In Hess v. State, the Alaska Supreme Court explained that, even though the defendant's acquittal does not prove that they are innocent of the prior act, a jury may reasonably infer a greater probability of innocence from the fact of the acquittal. Hess v. State, 20 P.3d 1121, 1125 (Alaska 2001).
We conclude that the record provides ample support for the superior court's findings. We agree with the superior court that a minimally competent attorney would have made a timely request to introduce evidence that Espinal had been acquitted of three counts of first-degree sexual assault of P.M.
Why we conclude that the superior court must clarify its prejudice findings on remand
After finding that Espinal's trial attorney failed to perform at the minimum standard of competency, the superior court briefly considered whether this incompetence prejudiced Espinal. The court found that "there is a reasonable probability that evidence of Mr. Espinal's prior acquittals involving P.M. may have placed the factfinder in reasonable doubt as to his guilt." However, almost immediately after entering this finding, the court confusingly found that Espinal had "fail[ed] to demonstrate that [evidence of] P.M.'s acquittal[s] would lead to reasonable doubt."
On appeal, Espinal relies on the superior court's first statement and contends that it was a finding that was sufficient to grant him relief from his conviction. By contrast, the State urges us to interpret the first statement as "articulating what the court's next action should be" rather than as a finding that Espinal had satisfied the prejudice prong of the test for ineffective assistance of counsel.
We decline to speculate about what alternative meaning the court's statements may have. On their face, the findings are in direct conflict with one another and cannot be reconciled. Thus, a limited remand to obtain clarification of the findings from the superior court is necessary.
Conclusion
We REMAND this case to the superior court to clarify its findings with regard to whether there was a reasonable possibility that the defense attorney's substandard performance contributed to Espinal's convictions. The superior court shall issue its clarified findings within 60 days of the date of this opinion. We retain jurisdiction.
[*] Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).