Opinion
Court of Appeals No. A-11074 Trial Court No. 3AN-09-10600 CI Trial Court No. 3AN-08-10621 CR No. 5858
06-27-2012
HOWARD L. HUGHES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David E. George, Anchorage, for the Appellant. Jason Gist, Assistant District Attorney, Anchorage, and Richard Svobodny, Acting 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the District Court, Third Judicial District, Anchorage, Stephanie Rhoades, Judge.
Appearances: David E. George, Anchorage, for the Appellant. Jason Gist, Assistant District Attorney, Anchorage, and Richard Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Howard L. Hughes was convicted of fourth-degree assault. He argues that he is entitled to relief from that conviction because his trial attorney provided ineffective assistance at his trial. Hughes claims that his trial attorney was incompetent because he did not call Melvin Gage, the person he claimed instigated the assault, as a witness, or seek to admit evidence of Gage's propensity for violence. He also claims that his attorney did not effectively cross-examine the victim and another witness, who was the victim's friend. Finally, Hughes claims that his attorney was incompetent because he did not present evidence that Hughes acted in self-defense when confronted by an angry mob. For the reasons explained here, we affirm the district court's judgment.
Background
Hughes was convicted of fourth-degree assault following a jury trial. He appealed, claiming that there was insufficient evidence to support his conviction. We affirmed his conviction.
AS 11.41.230(a)(1).
Hughes v. State, Mem. Op. & J. No. 5607, 2010 WL 2431803 (Alaska App. June 16, 2010).
Id. at *2.
As we set out in our previous decision, at Hughes's criminal trial the State presented evidence that, in September 2008, Nicole Johnson and four friends were walking from the Woodshed Lounge to the Kodiak Bar in downtown Anchorage. Three of the friends, including Melvin Gage, were walking in front, and Johnson and another woman were walking together behind the group of three.
Id. at *1.
Howard Hughes was sitting with a woman on a bench nearby. As the first three walkers passed by, Hughes and Gage exchanged words. Hughes yelled as they continued past him, but they kept on walking. When Johnson passed Hughes, Hughes approached her and yelled, "Do you want some?" Johnson continued to walk toward the Kodiak Bar; Hughes followed and continued to yell. Johnson yelled at Hughes to leave her and her friend alone. Hughes knocked Johnson's purse out of her hand, and then he kicked the purse away. Then Hughes punched Johnson in the face, knocking her to the ground. David Tatman, a bystander who observed the incident, called 911.
As a result of this incident, the State charged Hughes with fourth-degree assault. At trial, Hughes claimed self-defense. He testified that he had been talking with the woman sitting next to him on the bench when someone approached him and told him to leave the woman alone. Soon four or five people were gathered around him, exchanging rough words. Hughes claimed that Gage punched him in the chin, and that one of the women in the group slapped him, so he slapped her back.
After Hughes was convicted, he filed for post-conviction relief. His appointed post-conviction attorney deposed Hughes's trial attorney and filed an amended application.
In the amended application, Hughes asserted that he was represented in his criminal trial by an inexperienced attorney who was trying his first case as "lead counsel." Hughes alleged that his trial attorney failed to use the recording of Tatman's 911 call to establish that "Hughes was confronted by an angry racist mob that included a convicted robber"; failed to use the recording to cross-examine the victim for bias; failed to cross-examine the victim's friend — a witness to the assault — for bias; and failed "to seek leave to admit Gage's prior criminal history."
The State moved to dismiss the application for failure to plead a prima facie case. District Court Judge Stephanie Rhoades granted the motion, and Hughes now appeals.
Discussion
Hughes did not allege a prima facie case that his trial attorney's tactical decisions regarding Melvin Gage amounted to ineffective assistance of counsel.
Under Risher v. State, to obtain relief based on a claim that an attorney was incompetent, an applicant must plead and prove that the attorney's performance was so deficient that no competent attorney would have done the same, and that the applicant was prejudiced by this incompetence. The attorney's performance is judged in light of the circumstances at the time, not in hindsight. There is a strong presumption that an attorney was competent, and that the attorney's actions were motivated by sound tactical considerations. Reasonable tactical decisions are "virtually immune from subsequent challenge even if, in hindsight, better approaches could have been taken."
523 P.2d 421, 425 (Alaska 1974).
Id. at 424.
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
Alexander v. State, 838 P.2d 269, 273 (Alaska App. 1992).
Hughes asserts that his trial attorney was ineffective because he did not call Melvin Gage to testify. But the trial attorney testified at his deposition that he considered calling Gage, and subpoenaed him, but ultimately decided not to use him at trial. The trial attorney testified that in light of what Gage told the police about the incident, it was not wise to have Gage testify. The trial attorney said that he "elected not to [call Gage as a witness] because [he] felt that it would be worse for [the] case." He believed that Gage "would basically testify to what he told the officer in the police report, which was consistent with the testimony of all of the other witnesses and would add credibility to the State's version of events."
This record shows that the trial attorney made a tactical decision not to call Gage. It was reasonably predictable that Gage would testify consistently with the version of events he gave the police on the night of the incident, and that this testimony would corroborate other witnesses' accounts of what happened. As already noted, reasonable tactical decisions are "virtually immune from subsequent challenge even if, in hindsight, better approaches could have been taken."
Id. at 273.
Hughes also claims that his trial attorney was ineffective because he did not attempt to introduce evidence that Gage was convicted of robbery in 1999. He argues that Gage's prior conviction could have been used to show that Johnson, the victim, had a motive to fabricate when she testified that Hughes, not Gage, instigated the assault. Hughes contends that Johnson, Gage's life-long friend, must have known that Gage was on probation or parole as a result of the robbery conviction, and must have lied about Gage's role in the incident so as not to get Gage in trouble.
But Hughes does not identify any evidence in the record showing that Gage was on probation or parole for the 1999 robbery at the time Hughes assaulted Johnson, nor does he point to any evidence that Johnson believed Gage was on probation or parole. At his deposition, Hughes's trial attorney testified that he checked Gage's criminal history and discovered that Gage was not on probation or parole for the robbery at the time of the 2008 assault. Because Gage was no longer on probation or parole when the assault occurred, Hughes's trial attorney could reasonably conclude that questioning Johnson about Gage's criminal past would not significantly undermine her testimony.
Hughes also claims that his trial attorney should have at least attempted to convince the trial court to admit evidence of the robbery conviction because "[e]ffective use of Gage's violent criminal history and probationary status [sic] would have been materially effective to bolster Hughes's version of the events"— that is, Hughes's claim that he acted in self-defense because Gage attacked him first. But Hughes has not shown that this evidence was admissible. If the evidence was not admissible, Hughes cannot show he was prejudiced by his attorney's failure to introduce it.
See generally Arnett v. State, 938 P.2d 1079, 1081 (Alaska App. 1997).
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Hughes did not adequately allege that his trial attorney was ineffective in cross-examination.
Hughes also claims that his trial attorney was ineffective because he could have done a better job impeaching the victim, Johnson, and her friend, Cara Shreckenghost, who both testified at Hughes's trial. He argues that his trial attorney did not adequately develop the argument that Johnson's friendship with Gage gave her a motive to testify falsely to protect Gage, and that Shreckenghost's friendship with Johnson gave her a motive to testify falsely to support Johnson's testimony.
But Hughes's attorney established at trial that Hughes claimed that Gage started the incident by punching him, and that Johnson testified that Gage and she were life-long friends. The trial attorney emphasized to the jury that this life-long relationship gave Johnson "a reason to lie on [Gage's] behalf." He reminded the jury that even though he had subpoenaed Gage, Gage had not appeared to testify. He told the jury that the fact that Gage failed to appear might mean that "he has something to hide." In other words, the trial attorney made the jury aware that Johnson might have been biased with regard to Gage. Hughes has not shown that his trial attorney's cross-examination of Johnson amounted to ineffective assistance.
As for the assertion that his trial attorney did not adequately impeach Shreckenghost about her friendship with Johnson, it is true that Hughes's attorney did little to remind the jury of Shreckenghost's testimony that she had known Johnson's family "since [she] was a little kid." But this testimony made the jury aware of the long-time relationship, and the jury was instructed that when determining the credibility of a witness, the jury should consider, among other things, "[a]ny motive of the witness not to tell the truth," "[a]ny interest that the witness has in the outcome of the case," and "[a]ny bias of the witness."
Furthermore, Shreckenghost's testimony was corroborated in great detail by a third — and unrelated — bystander, David Tatman. Tatman did not know any of the people involved in the incident, but he was present and watched the incident unfold. Tatman called 911 when he saw that the incident was getting physical. Hughes has never asserted that Tatman had any bias or motive to fabricate. At trial, Hughes's attorney could have reasonably decided that there was little to be gained by trying to undermine Shreckenghost's credibility based on her friendship with Johnson when a complete stranger had testified to the same course of events.
Hughes also complains that his attorney failed to impeach Johnson with the statement in her citizen's arrest form that Hughes made "sexual references" when he assaulted her. But the record shows that Hughes's attorney made a reasonable tactical decision not to ask Johnson about these "sexual references." When Hughes deposed his attorney, he asked about the apparent discrepancy between Johnson's statement in the arrest form and her trial testimony that she could not recall what Hughes said to her that evening. The attorney explained that because Johnson's testimony was not really inconsistent with her prior statement, and because the State had not raised the issue, he made a tactical decision that bringing up Johnson's earlier allegations "would do more damage than good." Hughes has not shown that this was an unreasonable tactical decision.
Hughes did not show that his trial attorney was ineffective for his failure to use the 911 recording and the police contact recordings at trial.
Hughes also asserts that his trial attorney was ineffective because he failed to use audio recordings of the 911 call and the police contact, which he claims "reflected the use of racial slurs." Hughes contends that these audio recordings would have shown that he was confronted by a racist mob. Apparently there were two 911 calls made that night, and there were two "contact tapes" made when police interviewed witnesses at the scene.
At his deposition, the trial attorney said he was aware that a 911 tape indicated that someone shouted a racial slur during the incident. But he pointed out that the slur was shouted by one of the two witnesses who were not with Johnson and her friends. The State played this 911 tape at Hughes's criminal trial, and it was clear that the racist remark was made by a person who was not with Johnson's group, and that the remark was made after Hughes struck Johnson.
With regard to the police contact tapes, the trial attorney testified that he had listened to the tapes and that they did not contain any racist language. Hughes has not directed us to any place in the record that contradicts his trial attorney's testimony.
Hughes has not shown how his trial attorney could have used these audio recordings to make a convincing argument to the jury that Hughes was surrounded by a "racist mob." The record thus suggests that his trial attorney could have made a rational tactical decision not to attempt to do so.
Conclusion
The judgment of the district court is AFFIRMED.