Opinion
Court of Appeals No. A-10413 Trial Court No. 3PA-06-1185 CI No. 5860
07-18-2012
JOHN V. MORKAL, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David K. Allen, Attorney at Law, Sechelt, British Columbia, Canada, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 Superior Court, Third Judicial District, Palmer, Eric Smith, Judge.
Appearances: David K. Allen, Attorney at Law, Sechelt, British Columbia, Canada, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
John Morkal attended a University of Alaska Anchorage fraternity party in Big Lake. After guests at the party asked Morkal to leave, Morkal threw at least two rocks and damaged the windows of two vehicles. Morkal represented himself at trial and was ultimately convicted of second- and third-degree criminal mischief. Morkal filed an application for post-conviction relief, alleging that his original attorney was ineffective for failing to turn over photographs depicting the damage to the vehicles. Superior Court Judge Eric Smith concluded that Morkal failed to show prejudice and denied his application for post-conviction relief. We affirm Judge Smith's decision.
Background
In April 1998, Morkal attended a fraternity party in Big Lake. Several females at the party rejected Morkal's advances and asked him to leave. Morkal drove his car a short distance, then got out and began throwing rocks. The rocks broke the back window and dented the trunk lid of a Plymouth sedan. The rocks also broke the back window and put a star-shaped crack in the front windshield of a Mazda hatchback. Morkal drove away after throwing the rocks.
The car owners informed the state troopers in Palmer about the damage to their vehicles. During the investigation, a trooper photographed the two vehicles. Morkal was indicted on one count of second-degree criminal mischief for the damage to the Mazda and one count of third-degree criminal mischief for the damage to the Plymouth.
Morkal and his appointed attorney, Robert Herz, disagreed on what defense theory to pursue at trial. Herz was prepared to defend Morkal at trial by attacking the credibility of the State's witnesses. He wanted to argue that it was impossible for Morkal to have damaged the Mazda's front window in the manner described by some of the witnesses — specifically, one rock could not have broken both the front and back window. But Morkal insisted that he did not cause any of the damage and that the witnesses against him were involved in a conspiracy to falsely convict him. Prior to trial, Morkal asked to proceed pro se because of this "fundamental conflict" over how to handle the case. Superior Court Judge Eric Smith granted Morkal's request to proceed pro se and allowed Herz to withdraw from the case.
At trial, Morkal testified that individuals at the university conspired against him because they knew about his time in prison. Morkal also claimed that the record of the university's investigation into the incident was improperly altered.
Despite Morkal's testimony, the trial jury found Morkal guilty of second-and third-degree criminal mischief. This court affirmed Morkal's conviction in his direct appeal.
Morkal v. State, Mem. Op. & J. No. 4975, 2005 WL 712230 (Alaska App. Mar. 30, 2005).
Morkal later filed an application for post-conviction relief. Morkal alleged that Herz was ineffective when he withdrew from the case because he failed to provide Morkal with photographs of the damage to the vehicles.
At the evidentiary hearing on his application, Morkal argued that the photographs supported his conspiracy theory. Morkal testified that he did not believe Herz's defense theory was viable and stated that all it would take to destroy Herz's defense theory was for witnesses to state that Morkal threw more than two rocks at the cars. At one point, Morkal admitted that he and Herz had discussed the photographs prior to trial.
In his written decision, Judge Smith found that Herz was under an obligation to turn over the photographs, but failed to include the photographs when the case file was transmitted to Morkal. The judge concluded that competent counsel would have provided the photographs to Morkal when he took over the case.
Turning to the question of prejudice, the judge found that Morkal knew about the photographs prior to trial, but failed to request them. The judge concluded that the photographs were "tangential" to Morkal's conspiracy theory and "would not have contributed very much to that case." The photographs were not necessary to prove the inconsistency of the witnesses' testimony or to show their lack of credibility. The judge concluded that Morkal did not show by clear and convincing evidence that the lack of photographs contributed to the outcome of the case. Judge Smith therefore denied Morkal's application for post-conviction relief.
Discussion
In order to establish prejudice from ineffective assistance of counsel, a post-conviction applicant must show "that counsel's incompetence had some actual, adverse impact on the case - that is, the accused must prove 'some effect of [the] challenged conduct on the reliability of the trial process.'"
State v. Jones, 759 P.2d 558, 573 (Alaska App. 1988) (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)) (alteration in original).
In this appeal, Morkal argues that, if he had received the photographs from Herz, then he would have dropped his conspiracy theory and adopted Herz's approach to the defense. But this is not the theory that Morkal advocated at the post-conviction relief hearing. At the post-conviction relief hearing, Morkal testified that Herz's theory was wrong, and that the photographs would have aided his conspiracy theory.
We have previously stated that, "when a defendant appeals an adverse decision in post-conviction relief litigation, ... the defendant must be confined to the claims that were presented to the trial court (and ruled on) in that post-conviction relief proceeding." In this case, Morkal did not argue to Judge Smith that he would have dropped his conspiracy theory if Herz had provided him with the photographs. Judge Smith did not err when he failed to consider this argument.
Peters v. State, Mem. Op. & J. No. 5248, 2007 WL 2216610, at *2 (Alaska App. Aug. 1, 2007).
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Moreover, it is difficult to understand how the photographs in question would have advanced Morkal's trial defense under either theory. Judge Smith found that Morkal was aware of the photographs and that he chose to go to trial without them. Based on this record, Judge Smith reasonably concluded that Morkal had not established any prejudice.
Conclusion
We AFFIRM the superior court's order denying the application for post-conviction relief.