Opinion
Court of Appeals No. A-8831.
November 22, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, John E. Reese, Judge, Trial Court Nos. 3AN-93-7782 CR 3AN-94-3093 CR 3AN-99-6220 CI.
Dan S. Bair, Assistant Public Advocate, and Chad W. Holt, Section Supervising Attorney, Office of Public Advocacy, Anchorage, for the Appellant.
W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Leonard J. Hoffman appeals the dismissal of his post-conviction relief application. In his application, Hoffman argues that the attorney who represented him at his trial and on appeal provided ineffective assistance of counsel. We conclude that Hoffman did not present a prima facie case of ineffective assistance of counsel and therefore affirm the trial court's dismissal.
Factual and procedural background
A jury convicted Leonard J. Hoffman of four counts of tampering with a witness in the first degree, four counts of interference with an official proceeding, one count of arson in the first degree, one count of assault in the third degree, and four counts of sexual assault in the first degree. This Court summarized the facts underlying these offenses in Hoffman v. State as follows:
AS 11.56.540(a)(1) or (2) AS 11.16.110(2)(A) or (B).
AS 11.56.510(a)(1)(A) or (D) AS 11.16.110(2)(A) or (B).
AS 11.46.400(a) AS 11.16.110(2)(A) or (B).
AS 11.41.220(a)(1).
AS 11.41.410(a)(1).
950 P.2d 141 (Alaska App. 1997).
At around midnight on October 12, 1993, Hoffman knocked on the door of the residence of M.B.M.B. had known Hoffman for about five years and had engaged in acts of prostitution with him on previous occasions. When M.B. answered the door she was wearing only a negligee and a pair of satin underwear. Since M.B. was acquainted with Hoffman, she let him inside. Once inside, Hoffman asked M.B. if anyone else was present; after M.B. answered "no" Hoffman put one hand over M.B.'s mouth and wielded a knife with the other hand. A struggle ensued during which Hoffman shoved M.B.'s face into a couch and told her that he was going to "stick" her. During this struggle, M.B. scratched Hoffman's face. Hoffman then ripped M.B.'s underwear off and tried to tie the underwear around her head and then tried to stuff it in her mouth. After he was unsuccessful in stuffing M.B.'s underwear in her mouth, Hoffman ceased the attack and began talking to M.B.
After the attack, Hoffman told M.B. that he always paid before and that he had never done anything like this before. He also told M.B. that he had just killed a couple of black people and that they beat him up with a baseball bat. M.B. then asked Hoffman to leave. In response, Hoffman asked for M.B.'s car keys. After M.B. gave Hoffman her keys, Hoffman told M.B. that he would leave her car at the Carrs Aurora Center, and M.B. agreed not to call the police. After Hoffman left with her car, M.B. walked to the Carrs Aurora Center. When M.B. did not find her car at the center, she called the police and reported the assault, identifying Hoffman as her attacker.
Later in the early morning of October 13, 1993, K.V. was awakened by a knock on the door of her residence. K.V. looked out the window and saw Hoffman standing outside. K.V. knew Hoffman because he had dated K.V.'s sister. Hoffman "looked like he'd been in a fight" and asked K.V. to let him in to use her phone. Hoffman stated, "Help me, open the door, is your sister home, some niggers beat me up, I think my arm is broken." K.V. then opened the door and let Hoffman in.
Once inside K.V.'s trailer, Hoffman asked K.V. to get him some hydrogen peroxide and an Ace bandage; K.V. retrieved these items while Hoffman used the phone. K.V. noticed that Hoffman had a scratch under his eye and appeared to have a hurt wrist. While K.V. wrapped Hoffman's wrist with the bandage, Hoffman was saying "those f-ing niggers, those f-ing niggers." Hoffman was upset, dripping with sweat, and pacing back and forth. K.V. talked with Hoffman and tried to calm him down. Hoffman then asked K.V. if he could use the bathroom. Because K.V. had become leery of Hoffman, she told him that he shouldn't use the bathroom because her boyfriend was in the back room. However, Hoffman disregarded K.V.'s instructions and walked to the back room. After seeing that no one else was in the trailer, Hoffman indicated to K.V. that he was upset that she had lied to him. K.V. responded by asking Hoffman to leave; Hoffman agreed and began to walk out of the trailer.
As K.V. followed Hoffman out of the trailer, Hoffman turned around, grabbed K.V. with his hand over her mouth, threw her onto the daybed and got on top of her. Hoffman then ripped off K.V.'s clothes and took a knife out of his back pocket. After he bound K.V.'s wrists Hoffman picked K.V. up and pushed her into another room. While holding the knife, Hoffman then forced K.V. to perform fellatio on him. Subsequently, Hoffman forcibly penetrated K.V.'s rectum and vagina with his fingers, attempted to penetrate her rectum with his penis, and forcibly penetrated her vagina with his penis. Throughout this attack Hoffman hit and slapped K.V., pinched and twisted her breasts, and ran the knife back and forth across her naked body.
After the attack, K.V. asked Hoffman if he was hungry. Hoffman answered that he was hungry and K.V. followed him to the kitchen. K.V. then placed a TV dinner in the microwave. While Hoffman looked in the freezer for more food, K.V. ran out of her home to a neighbor's house where she called 911.
Shortly thereafter, the police arrived on the scene. After K.V. went to the hospital, she returned to her residence to obtain some clothing. While K.V. was gathering her clothes, she found two pair of panties which were not hers on her daybed. M.B. had purchased these items the previous day and had left them in her car. K.V. testified that she found Hoffman's jacket with M.B.'s car keys and house keys in the pocket. K.V. also testified that M.B.'s car was in K.V.'s driveway.
Hoffman was arrested on October 15, 1993, and remained incarcerated pending trial. While in jail, Hoffman called William Lopez and Gilbert Montiel and asked them to make threatening calls to K.V. in order to keep her from testifying. Per Hoffman's instructions, on November 22, 1993, Lopez made three threatening phone calls to K.V.
In late November 1993, Hoffman called Shannon Kennington and offered him a gram of heroin to shoot at M.B.'s trailer. Kennington accepted Hoffman's offer and in late November or early December, 1993, Kennington fired five or six shots into what he thought was M.B.'s trailer. However, Kennington fired the shots into the trailer next to M.B.'s trailer.
After the shooting, Hoffman continued to ask Kennington, Montiel and Lopez to intimidate K.V. and M.B. On December 11, 1993, M.B.'s neighbor found a burnt out Molotov cocktail in the driveway between his trailer and M.B.'s trailer. Two days later, M.B. found a partly burned Molotov cocktail in front of her trailer. On January 6, 1994, at Hoffman's request, Montiel and Lopez threw a Molotov cocktail through K.V.'s living room window. Finally, on April 11, 1994, Hoffman offered Kennington $1000 to firebomb M.B.'s trailer.
Id. at 142-43.
Pursuant to a Glass warrant, Kennington secretly recorded a conversation with Hoffman at the jail, wherein Hoffman again asked Kennington to firebomb M.B.'s trailer and said he would pay him $1000 for doing so.
See State v. Glass, 583 P.2d 872, 881 (Alaska 1978).
On October 26, 1993, the grand jury returned a seven-count indictment (3AN-S93-7782CR) against Hoffman. Counts I and II charged Hoffman with assault in the third degree and assault in the fourth degree; these charges arose from his assault on M.B. Count III charged Hoffman with assault in the third degree against K.V. and counts IV through VII charged him with sexual assault in the first degree against K.V.
On May 4, 1994, a grand jury returned a nine-count indictment against Hoffman. Counts I, II and III charged Hoffman with tampering with a witness in the first degree for attempting to influence the testimony of M.B. on three occasions in late 1993. Count IV charged Hoffman with tampering with a witness in the first degree for attempting to influence the testimony of K.V. on January 6, 1994. Counts V through VIII charged Hoffman with interference with official proceedings for attempting to influence the testimony of M.B. and K.V. on four occasions between November 1993 and January 6, 1994. Finally, Count IX charged Hoffman with arson in the first degree for the firebombing of K.V.'s residence on January 6, 1994.
Hoffman, 950 P.2d at 143.
The parties engaged in extensive litigation over how the different charges would be tried. Superior Court Judge Karen Hunt ultimately ruled that the jury would first decide the sexual assault and assault charges involving K.V. Following that trial, the same jury would consider the counts in the second indictment: tampering with a witness in the first degree for attempting to influence the testimony of M.B., tampering with a witness in the first degree for attempting to influence the testimony of K.V., interfering with official proceedings for attempting to influence the testimony of M.B. and K.V., and arson in the first degree for the firebombing of K.V.'s residence. Hoffman was convicted at the bifurcated trial and sentenced to consecutive terms totaling 30 years for the assault and sexual assaults of K.V. and 40 years for his witness intimidation conduct and arson activities. (The charges against Hoffman for the alleged assault on M.B. were dismissed two days before sentencing).
Id. at 143-44.
Id. at 144.
Id. at 143-44.
Hoffman filed a direct appeal with this Court, arguing first that Judge Hunt violated his right to be present when she responded to a note from the jury requesting a replay of testimony. This Court held that the error was harmless beyond a reasonable doubt. Hoffman's second argument was that Judge Hunt erred in admitting evidence of Hoffman's assault of M.B. in the trial of the assault and sexual assault of K.V., claiming that the M.B. assault evidence was not relevant for any purpose other than to show propensity to commit the assaults. This Court rejected Hoffman's argument. This Court pointed out that Hoffman's defense was that K.V. had consented to the sexual activity and agreed with Judge Hunt that M.B.'s testimony concerning Hoffman's violent behavior at her home, which had occurred just before the assault and sexual assaults on K.V., was relevant because the jury could infer that he was in the same emotional state during both encounters.
Id. at 144.
Id. at 146.
Id.
Id. at 147.
Id.
In his application for post-conviction relief Hoffman raised two issues which he contends Superior Court Judge John E. Reese erred in rejecting. The first issue concerned Judge Hunt's response, in Hoffman's absence, to the note from the jury requesting a replay of the trial testimony. Hoffman claimed that his trial attorney was ineffective in failing to move for a mistrial and, later, in failing to properly brief this issue on direct appeal. The second issue concerned Hoffman's claim that his trial attorney was ineffective for failing to object to the State's final argument in the second part of the trial. Judge Reese issued a written decision rejecting Hoffman's claims. But Judge Reese did not address Hoffman's claim that his counsel was ineffective for failing to object to the State's closing argument. When Hoffman brought this omission to Judge Reese's attention, Judge Reese denied the motion for reconsideration. Hoffman now appeals.
In his first claim, Hoffman contends that his trial attorney provided ineffective assistance of counsel when she did not move for a mistrial after she discovered that Judge Hunt had sent a note to the jury in violation of Hoffman's right to be present at every stage of the trial. He argues that his trial attorney should have moved for a mistrial and should have done a better job at presenting this issue on appeal. Hoffman's trial attorney represented him on appeal. In that appeal.
Hoffman's attorney raised the issue that Judge Hunt had communicated with the jury and did not inform Hoffman of this communication until after the jury had reached a verdict. In our decision in Hoffman, we concluded that Judge Hunt erred when she communicated with the jury without giving Hoffman an opportunity to participate. But we found that the error was harmless beyond a reasonable doubt. We therefore have previously decided this issue. Hoffman is barred by statute from raising the same issue that was previously rejected on appeal. Hoffman contends that his prior appellate attorney was ineffective for not raising certain additional arguments on this issue. We have examined Hoffman's arguments and see no reason to change our prior decision.
Id. at 145.
Id. at 146.
AS 12.72.020(a)(2) and (a)(5).
Hoffman's other contention in his application for post-conviction relief is that his trial attorney was ineffective for failing to object to the prosecutor's closing argument during the second part of the bifurcated trial. To recap, the subject of the first part of Hoffman's trial involved the charges that Hoffman assaulted and sexually assaulted K.V. During this first part of the trial, Judge Hunt allowed the State to present evidence of Hoffman's earlier assault on M.B. to show Hoffman's state of mind at the time of his assault on K.V. Following M.B.'s testimony, Judge Hunt instructed the jury to consider M.B.'s testimony for the limited purposes of testimonial completeness and to establish Hoffman's state of mind. The jury convicted Hoffman of the various assaults on K.V.
Hoffman, 950 P.2d at 144.
Id.
Id.
Following these verdicts, the second part of the trial began. This trial involved the various charges that Hoffman had attempted to intimidate K.V. and M.B. to prevent or influence their testimony. During the State's closing argument, the State referred to M.B.'s testimony that she was assaulted, and to the tape-recorded statements of Hoffman asking Shannon Kennington to firebomb M.B.'s trailer for $1000.
Id. at 143-44.
Hoffman asserts that Judge Hunt, in her previous orders, had precluded the State from relying on evidence that Hoffman assaulted M.B. Based on this assertion, Hoffman argues that his trial attorney was incompetent for failing to object when the prosecutor, in arguing that Hoffman had a motive to solicit Kennington to firebomb M.B.'s trailer, expressly relied on evidence of the assault on M.B.
Hoffman's argument about his attorney's alleged incompetence is based on a misunderstanding of Judge Hunt's evidentiary rulings.
It is true that Judge Hunt barred the State from relying on evidence of Hoffman's assault on K.V. to prove that Hoffman had earlier assaulted M.B. But Judge Hunt ruled that the State could rely on evidence of the assault on M.B. to prove that Hoffman assaulted K.V. later that same day — because this evidence was relevant to prove Hoffman's state of mind when he entered K.V.'s trailer.
Judge Hunt did not explicitly rule on whether the evidence of Hoffman's assault on M.B. would be admissible at Hoffman's trial for witness intimidation, but it is obvious that this evidence was relevant to prove that Hoffman had a motive to solicit Kennington to terrorize M.B. Indeed, an order precluding the State from relying on this evidence would make no sense. Hoffman was charged with committing various acts, including the attempted firebombing of M.B.'s home, in order to intimidate M.B. The fact that M.B. could provide a first-hand account of Hoffman's assault upon her was an obvious motive for Hoffman to engage in these acts of intimidation. Thus, M.B.'s testimony that Hoffman had earlier assaulted her was an integral part of the State's evidence.
It is also true that Judge Hunt precluded the State from relying on Hoffman's tape-recorded conversations with Kennington to prove that Hoffman had committed the assaults on M.B. and K.V. But Judge Hunt naturally ruled that this evidence would be admissible at Hoffman's trial for witness intimidation.
The challenged evidence was clearly admissible at Hoffman's trial for witness intimidation. The prosecutor was entitled to introduce this evidence and to argue this evidence to the jury. There is no merit to Hoffman's assertion that his trial attorney was incompetent for failing to object to the prosecutor's argument.
Conclusion
We conclude that the issues Hoffman raised in his application for post-conviction relief have no merit and that Judge Reese did not err in dismissing the application. The judgment of the superior court is AFFIRMED.