Opinion
Court of Appeals No. A-12304 No. 6689
08-22-2018
RANDY E. McDANIEL JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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. 3AN-12-11885 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. PER CURIAM.
Randy E. McDaniel Jr. appeals the superior court's dismissal of his petition for post-conviction relief. The superior court dismissed McDaniel's petition on the ground that it failed to set forth a prima facie case for relief.
McDaniel was convicted of second-degree murder for his part in a shoot-out between the occupants of two motor vehicles. At trial, McDaniel testified that he could not say for sure whether he or the other man fired the first shot, but McDaniel declared that he acted in self-defense — i.e., that he only fired his weapon after he saw a gun pointed at him from a window of the other car. The jury rejected this claim and convicted McDaniel of murder.
As part of the State's case at McDaniel's trial, the prosecutor presented the testimony of a crime scene analyst who concluded that McDaniel had, in fact, fired the first shot.
McDaniel's trial attorney was told of this witness, and of his anticipated testimony, during pre-trial discovery. After learning about this witness, the defense attorney wrote a letter to McDaniel in which he stated that he intended to hire an expert of his own — an expert who hopefully would be able to rebut the conclusions offered by the State's witness. However, McDaniel's attorney never hired such an expert.
In McDaniel's petition for post-conviction relief, he contended that his trial attorney represented him incompetently with respect to the testimony offered by the State's crime scene analyst. First, McDaniel asserted that his trial attorney incompetently failed to challenge the admissibility of the expert's testimony under the Daubert/Coon rule that governs the admission of scientific testimony. And second, McDaniel asserted that his trial attorney incompetently failed to hire an expert of his own to rebut the conclusions offered by the State's expert.
But McDaniel's petition for post-conviction relief failed to offer a prima facie case with regard to either of these claims.
In response to McDaniel's claim that his trial attorney should have tried to exclude the State's expert's testimony by filing a Daubert motion, McDaniel's trial attorney filed an affidavit explaining that he did not believe that the expert's testimony was crucial to the case — since McDaniel's claim of self-defense did not hinge on who fired the first shot, as long as the jury accepted McDaniel's testimony that he fired in response to seeing a gun pointed at him from the other car. As stated in the trial attorney's affidavit,
I did not believe that [the expert's] testimony proved much one way or the other about whether [Mr. McDaniel] reasonably believed that he was under assault and therefore could fire in self-defense.McDaniel offered nothing to rebut his trial attorney's assertions or his trial attorney's analysis of this issue. Thus, McDaniel's petition failed to set forth a prima facie case that his attorney's decision was incompetent.
We also note that there is an additional reason why McDaniel's petition for post-conviction relief could properly be dismissed: McDaniel failed to offer any reason to believe that the proposed Daubert motion would have been successful — i.e., that if a Daubert objection had been litigated, the trial court would have ruled in McDaniel's favor and precluded the State's expert from offering his conclusion about who fired the first shot.
As we explained in State v. Steffensen, 902 P.2d 340, 342 (Alaska App. 1995), when a defendant claims that their attorney was incompetent for failing to file a motion to suppress evidence or to otherwise preclude testimony, the defendant must show that the proposed motion would indeed have been successful, and that there is a reasonable possibility that the outcome of the defendant's trial would have been different if the evidence had been excluded.
Turning to McDaniel's claim that his trial attorney was incompetent for failing to hire a defense expert to rebut the conclusions offered by the State's expert, we again note that McDaniel's trial attorney concluded that the expert's testimony was largely inconsequential, because McDaniel's claim of self-defense did not hinge on who fired their weapon first. McDaniel's petition for post-conviction relief offered no reason to think that the trial attorney's analysis of this question was incompetent.
Moreover, McDaniel's petition contained no offer of proof describing the anticipated testimony of an expert who would, in fact, controvert the State's expert's conclusions. As this Court explained in Allen v. State, 153 P.3d 1019, 1024 (Alaska App. 2007), when a defendant seeks post-conviction relief based on a claim that their trial attorney incompetently failed to present a witness who would allegedly have given testimony favorable to the defense, the defendant must make an offer of proof describing what the potential witness would have said — showing that the potential witness "would actually have given favorable testimony". Without such an offer of proof, McDaniel failed to set forth a prima facie case that his attorney's decision was incompetent.
For these reasons, we conclude that the superior court properly dismissed McDaniel's petition for post-conviction relief. The judgement of the superior court is AFFIRMED.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.2786, 125 L.Ed.2d469 (1993) (announcing the test for assessing the admissibility of scientific evidence under the Federal Rules of Evidence), and State v. Coon, 974 P.2d 386, 395-98 (Alaska 1999) (adopting the Daubert test under the Alaska Rules of Evidence).