Opinion
A-13802
09-21-2022
GARY J. LORUSSO, Appellant, v. STATE OF ALASKA, Appellee.
Wallace Tetlow, Tetlow Christie, LLC, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District Trial Court No. 3PA-18-01240 CI, Palmer, John C. Cagle, Judge.
Wallace Tetlow, Tetlow Christie, LLC, Anchorage, for the Appellant.
Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Gary J. LoRusso appeals the denial of his application for post-conviction relief. LoRusso was convicted, following a jury trial, of third-degree sexual abuse of a minor for having sex with sixteen-year-old D.J. while in a position of authority over her.This Court affirmed LoRusso's conviction on direct appeal.
Former AS 11.41.438(a)(2) (2002).
LoRusso v. State, 2016 WL 2610662, at *4 (Alaska App. May 4,2016) (unpublished), aff'd on reh g, 2016 WL 5468244 (Alaska App. Aug. 23, 2016) (unpublished).
LoRusso filed an application for post-conviction relief, alleging ineffective assistance of counsel. LoRusso's claim was based on the fact that his trial attorney elicited testimony that LoRusso had previously been accused of having sex with other young girls and that he had previously cheated on his wife.
During direct examination, D.J.'s mother testified that she had confronted LoRusso with the allegations of abuse involving D.J., and that LoRusso never denied those allegations. On cross-examination, LoRusso's attorney asked D.J.'s mother to admit that LoRusso had, in fact, denied the allegations, including saying "Holy cow, no! No, none of that is true," and "I don't see how [D.J.] gets off saying all this stuff that's not true." The witness admitted LoRusso said these things, but she testified that this was only after she accused him of having sex with other young girls. This allegation - that LoRusso had had sex with other young girls - was brought up again when LoRusso testified in his own defense and his attorney asked him to explain the context of his denials. As part of this explanation, LoRusso testified that he had told D.J. he had cheated on his wife but that this was with someone his age.
In response to LoRusso's post-conviction relief application, his trial attorney submitted an affidavit explaining that he made a tactical decision to introduce the fact that LoRusso had denied D.J.'s allegations in order to avoid the appearance that LoRusso was denying the accusations for the first time at trial. He concluded that it was important for the jury to hear that LoRusso had previously denied the abuse, even if that meant the jury would also hear about the other allegations. The attorney emphasized that LoRusso faced an uphill battle at trial because, for the most part, he had not denied the allegations when confronted by D.J. and her mother.
The superior court denied LoRusso's application for post-conviction relief, concluding that the trial attorney made a reasonable tactical decision under the circumstances. LoRusso now appeals.
We agree with the superior court that LoRusso has failed to show that no reasonably competent attorney would have adopted the tactic under the circumstances.We also note that LoRusso testified in his own defense and that he was able to provide more context surrounding his denial and the other evidence that was introduced, thereby reducing its potential prejudice.
See Risher v. State, 523 P.2d 421, 425 (Alaska 1974) (holding that an attorney is ineffective only if the attorney's performance fell below the standard of minimal competence expected of an attorney experienced in criminal law); State v. Jones, 759 P.2d 558, 569-70 (Alaska App. 1988) (holding that, when an attorney has made a tactical choice, the defendant must show that the tactic itself was unreasonable - that is, that no reasonably competent attorney would have adopted the tactic under the circumstances).
The judgment of the superior court is AFFIRMED.