Opinion
Court of Appeals No. A-9049.
May 23, 2007.
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge., Trial Court No. 1JU-03-577 Civ.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, 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
Frederick Paul Johnson was convicted of second-degree sexual abuse of a minor for engaging in sexual contact with T.W., the pre-adolescent daughter of his girlfriend. This Court affirmed Johnson's convictions on appeal. See Johnson v. State, Alaska App. Memorandum Opinion No. 4676 (March 12, 2003), 2003 WL 1070324.
Approximately four months after this Court affirmed Johnson's convictions, he filed a petition for post-conviction relief, alleging that he had received ineffective assistance of counsel from his trial attorney. Superior Court Judge Patricia A. Collins held a hearing into Johnson's claims of attorney incompetence. Based on the evidence presented at that hearing, as well as the contents of certain affidavits that the parties agreed the judge could consider, Judge Collins concluded that Johnson had failed to prove that he received ineffective assistance from his trial attorney. She therefore denied Johnson's petition for post-conviction relief.
Johnson now appeals this decision. For the reasons explained here, we conclude that the record supports Judge Collins's conclusions regarding Johnson's various claims of attorney incompetence. We therefore affirm the judgement of the superior court.
Underlying facts of Johnson's criminal case
As described on pages 3-4 of our previous opinion in Johnson's case, Johnson lived with Roberta W. and her daughter, T.W.. Johnson and Roberta W. were also the parents of twin baby girls (T.W.'s half-sisters).
Roberta W. worked at a restaurant. According to the State's evidence, she often worked late into the evening, and Johnson would usually care for T.W. while her mother was at work. Sometime during the winter of 1996-97 (September 1996 to March 1997), when T.W. was six or seven years old, Johnson called T.W. to the living room couch, unzipped her pants, touched her between her legs, and rubbed his penis against her buttocks.
T.W. reported the sexual abuse, both to her mother and to her father and his new wife. However, none of these three adults alerted the authorities — although T.W.'s mother did put her daughter in counseling. Finally, in September 1999, T.W. told her counselor about the sexual abuse, and the counselor informed the police.
Juneau Police Officer David Wrightson received the report of harm to a minor from the Division of Family and Youth Services on September 20, 1999. Six days later, he interviewed Johnson regarding T.W.'s allegation. During this interview, Johnson denied that he had ever touched T.W. inappropriately or, indeed, that he had ever been alone with T.W..
Johnson declared that he made a conscious effort never to be alone with T.W. "because her sexual activity [was] so high". Johnson further explained that his reluctance to be alone with T.W. stemmed from the fact that C.B., the daughter of a former girlfriend, had also falsely accused him of sexual abuse. Johnson suggested that, like C.B. before her, T.W. was motivated to falsely accuse him of sexual abuse because T.W.'s mother and Johnson fought a great deal. Johnson declared that, on one occasion, he almost went to jail when T.W. reported that he hit her mother — when, in fact, according to Johnson, T.W.'s mother was the aggressor.
Based on Johnson's statements during the interview, Officer Wrightson researched Johnson's criminal history. He found that Johnson had been convicted three times of domestic assault upon T.W.'s mother, as well as one conviction for disorderly conduct (involving domestic violence) while living with T.W.'s mother. Wrightson also confirmed that C.B. had accused Johnson of sexually abusing her.
Johnson was indicted and ultimately convicted on two counts of second-degree sexual abuse of a minor. Johnson's claim of attorney incompetence
In his petition for post-conviction relief, Johnson claimed that his trial attorney, Phillip Pallenberg, incompetently failed to develop and present an alibi defense.
In particular, Johnson asserted (1) that Pallenberg should have presented evidence that, because of a conviction for domestic violence against Roberta W., Johnson was in jail or was residing in a half-way house for two months of the period covered by the indictment; (2) that Pallenberg should have introduced records from Johnson's place of employment, which allegedly would have shown that Johnson worked long hours and was not home often in the afternoons ( i.e., when Roberta W. was not there); (3) that Pallenberg should have introduced records from Roberta W.'s place of employment, which allegedly would have shown that Roberta W. rarely worked in the evenings ( i.e., when Johnson might be alone with T.W.); and (4) that Pallenberg should have presented the testimony of two women, Mich Hosni and Alicia Fallis, who allegedly babysat T.W. (thus tending to rebut the State's assertion that Johnson was often T.W.'s babysitter).
Pallenberg filed an affidavit responding to these claims of attorney incompetence. In this affidavit, Pallenberg acknowledged that, during the preparation of the case, Johnson had repeatedly asserted that he had an alibi. However, after investigating the facts of the case, Pallenberg discovered that Johnson had only a partial alibi.
In particular, Pallenberg investigated Johnson's employment records and discovered that these records did not corroborate Johnson's assertion that he had worked long hours and was not home often during the day. Instead, Johnson's employment records showed significant periods of time when he was not working. In addition, the records showed that when Johnson was working, he was often free in the afternoons.
Because the indictment covered several months (the winter of 1996-97), Pallenberg concluded that it would not be fruitful to spend a lot of effort developing alibi evidence that still left many opportunities for Johnson to commit the offenses — especially when proof of this partial alibi would entail informing the jury that Johnson had been in jail for a significant period of time.
Pallenberg recalled that Johnson wanted him to focus on two main areas in presenting the defense: the partial alibi just described, and Johnson's assertion that he carefully avoided being alone with seven-year-old T.W. because she "was sexually precocious" and Johnson "fear[ed] what she might do". Pallenberg concluded that "[n]either of these . . . defenses . . . would be helpful to Mr. Johnson at trial".
Instead, Pallenberg decided to focus on "attempt[ing] to show that [Johnson's and Roberta W.'s] home environment was tumultuous and violent at times" — and that, as a result of the conflict between Johnson and Roberta W., "[both] mother and child had a motive to fabricate allegations of sexual abuse in order to get Mr. Johnson out of the house[, and] to gain [an] advantage in the pending child custody proceedings involving the younger children" ( i.e., the twin girls).
At the ensuing evidentiary hearing, Johnson presented the testimony of his former work supervisor, George Wright, concerning Johnson's work schedule in the winter of 1996-97. Johnson also took the stand himself. Johnson testified that he was incarcerated (either in jail or in a half-way house) from November 30, 1996 to January 28, 1997. Johnson also testified that he studiously avoided being alone with T.W. because, four years earlier, he had been accused of sexually abusing the daughter of another girlfriend. Johnson testified that, because he would not babysit T.W., Roberta W. arranged for two women — Mich Hosni and Alicia Fallis — to babysit T.W.. The superior court's decision
After hearing this testimony, and after reviewing the entire transcript of Johnson's trial, and after considering the arguments of the attorneys, Judge Collins issued a written decision in which she concluded that Johnson had failed to prove his claim of ineffective assistance of counsel.
In her decision, Judge Collins noted that some of the testimony presented at Johnson's trial undercut his assertion that he never babysat T.W.. In particular, Judge Collins noted the trial testimony of Karen Baysinger. Baysinger testified that she lived a few doors away from Johnson and Roberta W., and that their children played together. According to Baysinger's testimony, she sometimes observed Johnson babysitting T.W. while Roberta W. was at work — and that, on one occasion, she talked to Johnson while he was babysitting T.W.. In addition, Baysinger testified that there were occasions when Johnson would come to her residence, looking for T.W. — from which she inferred that Johnson was babysitting T.W. while Roberta W. was at work.
Based on this conflicting testimony, and based on the fact that Johnson's indictment covered a period of several months, Judge Collins concluded that Johnson had failed to prove that Pallenberg acted incompetently when he failed to press the alibi defense that Johnson advocated. Judge Collins wrote:
[Pallenberg's] failure to present a partial alibi defense . . . was [not] an unreasonable trial decision. Mr. Johnson's [sexual] abuse of the child . . . occurred during a brief period on one evening somewhere between [September] 1996 and [March] 1997. Given the [fact that the jurors heard the] testimony of another child victim, C.B., that Mr. Johnson had sexually abused her repeatedly some years earlier, the [proposed] partial alibi theory might have had a negative impact on the [defense's] case.
Judge Collins explained that if Pallenberg had chosen to advance Johnson's proposed partial alibi defense, Pallenberg would have had to directly challenge Baysinger's testimony. Moreover, even if Pallenberg had convinced the jurors that Johnson had few opportunities to be alone with T.W., the testimony concerning Johnson's previous, repeated sexual abuse of another child might have led the jurors to conclude that "[t]he somewhat infrequent times [when] Mr. Johnson was alone with [T.W.] might [only] explain why there was a single incident of abuse, as opposed to the regular pattern of abuse alleged by the earlier victim, C.B.".
Judge Collins concluded that the record supported Pallenberg's decision not to directly challenge Baysinger's testimony, and to forego Johnson's proposed partial alibi defense, in favor of the theory "that [T.W.] was lying due to the poor relationship between Mr. Johnson and the child's mother". In fact, Judge Collins concluded that, under the circumstances, this was the "best defense theory" available to Pallenberg.
Moreover, Judge Collins concluded that, "given the testimony of [the] two child victims of abuse [ i.e., C.B. and T.W.], each of whom testified to similar sexual abuse by Mr. Johnson, it is not likely that the jury would have reached a different conclusion [if Pallenberg had chosen to present Johnson's proposed] partial alibi theory ."
Why we affirm the superior court's decision
The gist of Judge Collins's decision is that, even if Pallenberg had developed and presented all of the alibi evidence that Johnson referred to during the post-conviction relief proceedings, (1) Pallenberg still would have had to confront and discredit Baysinger's testimony that Johnson babysat T.W. from time to time; and even if Pallenberg had somehow succeeded in this task, (2) the partial alibi would not have eliminated all of Johnson's opportunities to be alone with T.W. and to sexually abuse her.
The primary issue at Johnson's trial was the credibility of T.W. and C.B. (the girl who testified that Johnson had repeatedly sexually abused her years before). As Judge Collins remarked in her decision, if the jurors believed C.B.'s testimony, then the fact that Johnson may have had few opportunities to be alone with T.W. might only explain why T.W. was not abused more frequently.
Given these circumstances, we agree with Judge Collins that Pallenberg made a reasonable and competent decision not to make Johnson's defense hinge on a claim of partial alibi, but rather to attack T.W.'s credibility by showing that she and her mother had reasons to falsely accuse Johnson of sexual abuse.
Conclusion
The judgement of the superior court is AFFIRMED.