Opinion
Court of Appeals No. A-9478.
July 18, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge., Trial Court No. 3AN-99-6928 CIF.
Dan Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Smile, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Late in the evening of April 16, 1993, Brian F. Hall and some of his friends became involved in a heated argument with two other young men at a bonfire party in the Stuck again Heights neighborhood of Anchorage. Hall was armed with a .44 caliber handgun. Toward the end of the argument, the two other young men got into their car and drove slowly toward the car that Hall and his friends were occupying. One of the young men extended his arm out of the car window, holding a bottle of beer. The young man said, "We aren't got any beef with you. Do you want some of this?" Hall later testified that he thought that the young man was holding a gun. Hall pulled his .44 out of his pocket and fired three shots into the car — killing both men.
At trial, Hall argued that he had acted in self-defense (and defense of others) — i.e., that he had mistakenly but reasonably believed that he and his friends were about to be attacked with deadly force. The jury rejected this claim and convicted Hall of one count of first-degree murder and one count of second-degree murder. This Court affirmed Hall's convictions in Hall v. State, Alaska App. Memorandum Opinion No. 3768 (March 4, 1998), 1998 WL 90885.
About one year later, Hall filed a petition for post-conviction relief. In this petition, Hall argued that his trial attorney had incompetently failed to ask the trial judge to instruct the jury on heat of passion — a partial defense which, if proved, would have reduced the unlawful homicides to manslaughter (rather than murder).
At the hearing on this petition, Hall offered the testimony of three attorneys: his trial attorney, Sidney Billings's lea, as well as two expert witnesses: attorneys James Gilmore and Cynthia Stout, both of whom are experienced criminal law practitioners. All three attorneys testified that Billings's lea had acted incompetently when she failed to argue heat of passion, and when she allowed Hall's case to go to the jury without a heat of passion instruction.
Despite the assertions of these three attorneys, Superior Court Judge Michael L. Wolverton concluded that a competent criminal defense attorney could reasonably have decided that Hall's case should be defended solely on a claim of self-defense — a claim which, if successful, would result in Hall's complete exoneration. Judge Wolverton therefore denied Hall's petition for post-conviction relief.
Hall now appeals the superior court's decision. For the reasons explained here, we affirm the superior court's resolution of Hall's case.
A more detailed look at the evidence presented to the superior court
The evidence showed that Billingslea did not overlook the potential defense of heat of passion; rather, she chose not to pursue it.
Early in the trial proceedings, the prosecutor submitted a proposed heat of passion instruction. However, after listening to Hall's testimony (the claim of self-defense described above), the prosecutor withdrew the State's request for a heat of passion instruction. The prosecutor told the judge that Hall's testimony did not appear to raise any issue of heat of passion. When the trial judge asked Billingslea if she objected to the State's decision to withdraw heat of passion as an issue in the case, Billingslea answered that she did not object.
(Hall's jury was, in fact, instructed on the lesser offense of manslaughter at the request of the defense, but not on a heat of passion theory.)
In the affidavit that Billingslea initially submitted in support of Hall's petition for post-conviction relief, Billingslea suggested that she had been distracted when this issue arose, and that she had not been sufficiently attentive when she told the trial judge that she did not object to the State's withdrawal of its proposed heat of passion instruction. Billingslea asserted that she had not acted "thoughtfully" when she decided to allow Hall's case to go to the jury without a heat of passion instruction.
But Billingslea's later testimony at the evidentiary hearing differed significantly from what she said in her affidavit.
In her testimony at the hearing, Billingslea declared that she was familiar with the defense of heat of passion and the elements of that defense. She further stated that she did not propose a heat of passion instruction in Hall's case because she did not believe that this defense was applicable to the facts of the case.
Based on her pre-trial interviews with Hall, Billingslea concluded that Hall felt "a heightened sense of insecurity" at the time of the homicides because he believed that the other two young men were acting aggressively, and because he thought that they had a gun in their car. Hall never told Billingslea that he fired the shots at the other car out of a sense of anger or rage. Rather, Hall consistently maintained that he fired the shots because he honestly (but mistakenly) believed that the beer bottle in the young man's hand was a gun.
Based on this information from her client and her other knowledge of the case, Billingslea decided to pursue a defense of self-defense — and heat of passion never entered her mind.
Billingslea also testified that, prior to Hall's trial, she consulted four other defense attorneys about Hall's case (including Cynthia Strout, one of the expert witnesses at the post-conviction relief hearing). None of these other attorneys advised her to pursue a heat of passion defense. In fact, Billingslea had no recollection of any of these attorneys even mentioning heat of passion as a plausible defense.
Based on all of the foregoing, Billingslea concluded that "self-defense was the most appropriate defense in [Hall's] case".
Billingslea acknowledged that she read the State's proposed heat of passion instruction, and that she probably discussed that instruction with Hall, before she acquiesced in the State's withdrawal of its proposed instruction — thus allowing Hall's case go to the jury without a heat of passion theory. Billingslea explained that, as a general matter, she did not favor running "combination" defenses — for example, arguing self-defense but offering the jury a fall-back position of heat of passion.
Billingslea testified that, once, she had litigated a criminal case in which she adopted a strategy of "let's try everything and see if something works". But she believed that, in most instances, it was better to choose a single defense theory and stick to it. She agreed, in particular, that asking a jury to convict a defendant of a lesser degree of homicide was, "at some level, intellectually inconsistent with [a claim of] self-defense".
Finally, Billingslea repeatedly asserted that she had, in fact, provided constitutionally adequate representation to Hall — that her decision to forego a potential heat of passion defense was within the range of competency required under Risher v. State. Why we agree with the superior court that Billingslea's representation of Hall was competent
523 P.2d 421 (Alaska 1974).
Hall argues that Billingslea's decision to allow the case to go to the jury without a heat of passion instruction was not "tactical". This contention is clearly contrary to the evidence.
The evidence unequivocally establishes that Billingslea consciously chose not to object when the prosecutor withdrew the State's request for a heat of passion instruction. The trial judge asked her directly whether she objected to having the issue of heat of passion withdrawn from the case, and she answered "no". Billingslea may have later regretted her decision, and she may have later concluded that she did not give sufficient thought to this issue, but her decision was clearly tactical; that is, it was a conscious decision to litigate Hall's case in a particular way.
The remaining question is whether Billingslea's decision fell outside the range of competency that should be expected of criminal law practitioners.
Risher, 523 P.2d at 424.
At the evidentiary hearing, Hall presented the testimony of two experienced criminal law practitioners, attorneys James Gilmore and Cynthia Strout. Both Gilmore and Strout testified that it was incompetent of Billingslea to litigate Hall's case without offering a heat of passion defense as an alternative to Billingslea's primary claim of self-defense.
However, Strout agreed that Billingslea had consulted her about Hall's case before trial. In fact, Strout testified that she participated in a mock cross-examination of Hall at the jail, and that she filed some of the defense motions in limine. And, while acknowledging her involvement in the preparation of Hall's defense, Strout never disputed Billingslea's testimony that she (Strout) never urged, or even suggested, that Billingslea advance a heat of passion defense. Instead, it was Strout's opinion that Hall had a good self-defense case and a "higher-than-ordinary chance of outright acquittal".
(According to Strout, her first discussion of heat of passion as a possible defense in Hall's case occurred after the trial, when Billingslea was expressing regret that she had not offered heat of passion as a defense theory.)
Turning to Gilmore's testimony (that Billingslea was incompetent for failing to present heat of passion as an alternative defense), it appears that Gilmore's assessment was based, in large measure, on his understanding that Billingslea never made a conscious decision to forego heat of passion and focus on self-defense instead. But this understanding was mistaken. As described above, Billingslea explained at length (in her testimony at the hearing) why she did not consider heat of passion to be a plausible defense, and why (even if it had been a plausible defense) she concluded that it was better to offer the jury the single theory of self-defense.
Gilmore also conceded, on cross-examination, that he had personally litigated three homicide cases in which he pursued a claim of self-defense and decided not to seek or offer heat of passion as a back-up defense.
Given this testimony, and given Billingslea's own explanation of her decision, Judge Wolverton could properly conclude that Hall had failed to prove that Billingslea acted incompetently when she decided to pursue a claim of self-defense and not to pursue a back-up claim of heat of passion.
Conclusion
The judgement of the superior court is AFFIRMED.