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Gilbert v. State

Court of Appeals of Alaska
Mar 23, 2022
No. A-13274 (Alaska Ct. App. Mar. 23, 2022)

Opinion

A-13274

03-23-2022

MARK D. GILBERT, Appellant, v. STATE OF ALASKA, Appellee.

Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Ann B. Black, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Trial Court No. 3AN-12-08226 CI Anchorage, Dani Crosby, Judge.

Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.

Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Harbison and Terrell, Judges.

SUMMARY DISPOSITION

Mark D. Gilbert was convicted, following a jury trial, of felony driving under the influence and driving with a revoked license. This Court affirmed Gilbert's convictions on direct appeal. Gilbert then filed an application for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. After holding an evidentiary hearing, the superior court denied Gilbert's application. Gilbert now appeals.

Former AS 28.35.O3O(n) (2011) and former AS 28.15.291(a)(1) (2011), respectively.

Gilbert v. State, 2015 WL 4064678, at * 1 (Alaska App. July 1, 2015) (unpublished).

Gilbert initially also alleged that he received ineffective assistance of counsel during pretrial plea negotiations, but this claim was dismissed before the evidentiary hearing. Gilbert does not challenge this dismissal on appeal.

To succeed on a claim of ineffective assistance of counsel, an applicant must demonstrate that their attorney was incompetent and that this incompetence caused them prejudice.

Risher v. State, 523 P.2d 421, 425 (Alaska 1974).

Gilbert's claim of ineffective assistance of counsel centered around the arresting officer's testimony, on two separate occasions, about hearsay statements made by passengers in Gilbert's vehicle.

First, during direct examination of the officer who arrested Gilbert, the prosecutor asked, "Why did [your investigation] switch to Mr. Gilbert?" The officer responded with multiple reasons, including that the passengers had told him that Gilbert had been driving. (Gilbert's defense at trial was that he was not the driver of the vehicle.) Gilbert's attorney immediately objected, and the trial court instructed the jury to ignore the officer's answer. In his application for post-conviction relief, Gilbert claimed that his attorney was ineffective for failing to object to the question before the officer had the opportunity to answer.

The superior court rejected this claim, concluding that Gilbert's attorney was not incompetent because the prosecutor's question did not obviously call for a hearsay response. We have reviewed the record and we agree with the superior court that Gilbert's attorney was not incompetent.

Second, during cross-examination of the arresting officer, Gilbert's attorney asked, "[Y]ou made the decision to arrest Mr. Gilbert based upon him... sitting behind the [wheel] without any keys in the ignition, correct?" The officer responded, "No, I made the decision based upon the other people in the car stating he drove." Gilbert's attorney again objected on hearsay grounds, and the trial court instructed the jury that it could consider the passenger's hearsay statements only for their effect on the officer, not for the truth of the matter asserted.

In his application for post-conviction relief, Gilbert argued that his attorney was incompetent for asking a question that was likely to elicit a hearsay response. At the evidentiary hearing on Gilbert's application, however, his attorney testified that he had a tactical reason for asking this question. Specifically, he stated that he wanted to highlight to the jury the lack of evidence suggesting that Gilbert had been the driver, and that he assumed, given the previous objection to the hearsay statements of the passengers, that the officer would not repeat them. The superior court credited defense counsel's testimony, and therefore concluded that he had a valid tactical reason for asking the question that elicited the hearsay response. We have reviewed the record, and we see no error in the superior court's ruling.

See State v. Jones, 759 P.2d 558, 569-70 (Alaska App. 1988) (holding that an attorney is not incompetent if she made a choice based on a reasonable tactical decision).

Finally, we agree with the superior court that in addition to failing to show that his attorney acted incompetently, Gilbert also failed to show that his attorney's conduct caused him prejudice. We note that in Gilbert's direct appeal, he argued that the trial court erroneously denied a motion for a mistrial that was based on the admission of the same hearsay statements at issue here. We rejected that argument, holding that the trial court reasonably concluded that the court's limiting instructions were sufficient to cure any prejudice caused by the admission of the passenger's hearsay statements. In denying Gilbert's post-conviction relief application, the superior court also noted the effect of the limiting instructions in concluding that Gilbert had not shown prejudice with respect to his attorney's failure to object to the prosecutor's question to the arresting officer on direct examination. The court's conclusion is supported by the record.

Gilbert, 2015 WL 406467, at *3.

The claimed errors of counsel were also not prejudicial in light of the strength of the other evidence identifying Gilbert as the driver. The State's primary witness, a man who was forced off the road in order to avoid a head-on collision, subsequently followed the vehicle while calling 911, and identified Gilbert as the driver and as the person who exited from the driver's door when the arresting officer arrived. That officer also identified Gilbert as the person who got out of the driver's side door upon contact.

The judgment of the superior court is AFFIRMED.


Summaries of

Gilbert v. State

Court of Appeals of Alaska
Mar 23, 2022
No. A-13274 (Alaska Ct. App. Mar. 23, 2022)
Case details for

Gilbert v. State

Case Details

Full title:MARK D. GILBERT, Appellant, v. STATE OF ALASKA, Appellee.

Court:Court of Appeals of Alaska

Date published: Mar 23, 2022

Citations

No. A-13274 (Alaska Ct. App. Mar. 23, 2022)