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Hesch v. State

COURT OF APPEALS OF THE STATE OF ALASKA
Jan 13, 2016
Court of Appeals No. A-11491 (Alaska Ct. App. Jan. 13, 2016)

Opinion

Court of Appeals No. A-11491 No. 6266

01-13-2016

DAVID SUN DO HESCH, Appellant, v. STATE OF ALASKA, Appellee.

Appearances: Marcelle K. McDannel, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. 4FA-10-3138 CI

MEMORANDUM OPINION

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge. Appearances: Marcelle K. McDannel, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.

Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d). --------

David Sun Do Hesch was convicted of assaulting and kidnapping a woman named Polly Andrews. According to the State's evidence, Hesch assaulted and kidnapped Andrews because he mistakenly thought that she had contacted state social workers to report that a friend of Hesch's, Turhan Ray, was using cocaine.

We affirmed Hesch's convictions on direct appeal: Hesch v. State, unpublished, 2010 WL 1838597 (Alaska App. 2010).

After we affirmed Hesch's convictions, he filed a petition for post-conviction relief in which he asserted that his trial attorney had represented him incompetently in various respects. The superior court dismissed Hesch's petition for failing to state a prima facie claim for relief, and Hesch now appeals two aspects of the superior court's decision.

Both of Hesch's claims are based on the fact that his friend, Turhan Ray, was originally going to testify as a defense witness at Hesch's trial, but then he claimed his Fifth Amendment privilege and refused to take the stand.

Ray was apparently going to testify that he was with Hesch and Andrews for a period of time during the incident in question, and that Andrews was not acting like a person who was being held against her will. When Hesch's attorney gave his opening statement at the beginning of the trial, the attorney told the jurors that Ray would give this exculpatory testimony.

But after the trial began (and before Ray was to take the stand), Ray's attorney unexpectedly announced that Ray was going to invoke his Fifth Amendment privilege and refuse to testify. We say "unexpectedly" because the record of the post-conviction relief proceedings shows (1) that Hesch's trial attorney met with Ray twice before trial to discuss Ray's anticipated testimony, (2) that Ray's attorney was aware of the second of these meetings (and was informed of the subjects that Hesch's attorney would be discussing with Ray), and (3) that neither Ray nor his attorney indicated that Ray would refuse to testify.

In Hesch's petition for post-conviction relief, he asserted that his trial attorney was incompetent for choosing to describe Ray's anticipated testimony in his opening statement, when it was still possible that Ray might claim a privilege and refuse to testify.

But as we have explained, Hesch's attorney held two pre-trial meetings with Ray — one with the consent of Ray's attorney — and neither Ray nor his attorney suggested that Ray would refuse to take the stand. Under these circumstances, it was not incompetent for Hesch's trial attorney to include a description of Ray's anticipated exculpatory testimony when he delivered his opening statement.

Hesch's second post-conviction relief claim was that, after Ray invoked his Fifth Amendment privilege and did not take the stand, Hesch's trial attorney incompetently failed to ask the trial judge to instruct the jury, pursuant to Alaska Evidence Rule 512(c), that the jurors were to draw no inference—whether favorable or unfavorable to Hesch — from Ray's assertion of his privilege.

But as we explained when we resolved Hesch's direct appeal, it is not clear whether Evidence Rule 512(c) even applies to the circumstances of Hesch's case. Some jurisdictions with analogous evidence rules have concluded that this rule only applies to cases where the witness's claim of privilege occurs in the jury's presence (or where the jury is otherwise apprised that the witness is not testifying because of a claim of privilege). Hesch, 2010 WL 1838597 at *3.

We also indicated in Hesch that, given the jury instructions as a whole, Hesch had not shown that he suffered any prejudice from the lack of a jury instruction specifically addressed to Ray's claim of privilege:

[Even if] the jurors had improperly speculated that the [trial] judge had excluded Ray's testimony, ... they were told not to let that speculation affect their verdict: "You may not speculate as to why ... evidence was excluded[,] or what [that excluded evidence] may have been." And the judge [also] instructed the jury that they must determine the facts "by relying solely upon the evidence received in this trial."
Hesch, 2010 WL 1838597 at *4.

For these same reasons, we conclude that the superior court properly dismissed Hesch's related post-conviction relief claim.

The judgement of the superior court is AFFIRMED.


Summaries of

Hesch v. State

COURT OF APPEALS OF THE STATE OF ALASKA
Jan 13, 2016
Court of Appeals No. A-11491 (Alaska Ct. App. Jan. 13, 2016)
Case details for

Hesch v. State

Case Details

Full title:DAVID SUN DO HESCH, Appellant, v. STATE OF ALASKA, Appellee.

Court:COURT OF APPEALS OF THE STATE OF ALASKA

Date published: Jan 13, 2016

Citations

Court of Appeals No. A-11491 (Alaska Ct. App. Jan. 13, 2016)