Opinion
Court of Appeals No. A-10324.
May 18, 2011.
Appeal from the Superior Court, Second Judicial District, Nome, Ben Esch, Judge, Trial Court No. 2NO-07-216 Civ.
Julia D. Moudy, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, 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.
MEMORANDUM OPINION
Bernice Slwooko was convicted of second-degree murder, and this Court affirmed her conviction in Slwooko v. State, 139 P.3d 593 (Alaska App. 2006). Slwooko then filed a petition for post-conviction relief, attacking the competence of her appellate attorney ( i.e., the attorney who represented her in the direct appeal of her conviction). The superior court concluded that Slwooko failed to set forth a prima facie case that her appellate attorney was incompetent, and the superior court therefore dismissed Slwooko's petition. Slwooko now appeals that decision.
Slwooko's claim of attorney incompetence involves a point of evidence law, and the appellate attorney's failure to raise this point in a timely fashion.
As we explained in our earlier decision, both Slwooko and her boyfriend, Jacob Anagick, were charged with committing the murder in this case. Prior to Slwooko's trial, Anagick pleaded guilty to the murder, and he testified as a defense witness at Slwooko's trial. In his testimony on direct examination, Anagick claimed that he was solely responsible for the killing, and that Slwooko was not present and did not participate in the homicide — although Anagick acknowledged that Slwooko later helped him conceal or destroy evidence of the crime.
Slwooko, 139 P.3d at 604.
Ibid.
Following this testimony, during the State's rebuttal case, the prosecutor presented the testimony of a law enforcement officer who interviewed Anagick shortly after the murder was reported. According to this officer's testimony, Anagick made statements during this interview that were inconsistent with his trial testimony — statements in which Anagick acknowledged that Slwooko was present during the murder, and that she played an active role in killing the victim.
Id. at 604-05.
At the time, Slwooko's trial attorney objected to the officer's testimony on the basis that the prosecutor had failed to lay a proper foundation for this testimony under Alaska Evidence Rule 613. Specifically, the defense attorney argued that the prosecutor had failed to cross-examine Anagick about his purported inconsistent statements, so that Anagick would have an opportunity to either deny making these statements or explain the statements.
Id. at 605.
The trial judge overruled the defense attorney's objection, and we upheld that ruling on appeal. In our decision, we quoted a lengthy excerpt from the prosecutor's cross-examination of Anagick, and (based on this excerpt) we concluded that Anagick had, in fact, been fairly confronted with his inconsistent statements and given the opportunity to respond to them.
Id. at 605-06.
We then noted that Slwooko's reply brief contained a new objection to the officer's testimony:
In her reply brief, Slwooko no longer argues that [the] foundation [for the officer's testimony] was insufficient. Rather, she advances a new argument: that [Evidence] Rule 613 precludes testimony concerning a witness's prior inconsistent statement unless that testimony is corroborated by physical evidence — for example, a writing that incorporates the prior statement, or an electronic recording of the prior statement. Because this argument is presented for the first time in Slwooko's reply brief, we need address it no further.
Slwooko, 139 P.3d at 606.
At this point, we return to Slwooko's post-conviction relief litigation. In her petition for post-conviction relief (and now, on appeal) Slwooko claims that her appellate attorney represented her incompetently because he failed to argue this new interpretation of the evidence rules in his opening brief — because, if the argument had been raised in the opening brief, this Court would have been obliged to address it.
It is true that this Court would have had to address this argument if it had been presented in Slwooko's opening brief. But because Slwooko's trial attorney did not raise this issue in the trial court, Slwooko's appellate attorney would have had to pursue this argument as a claim of plain error, even if he had included it in the opening brief.
In other words, Slwooko's appellate attorney would have had to argue that, even though Slwooko's trial attorney raised no objection on this point, Slwooko's trial judge committed obvious error by allowing the officer to testify about Anagick's prior inconsistent statements when the prosecutor failed to show that those statements were either recorded or reduced to writing.
As a claim of plain error, this argument obviously fails.
Evidence Rule 801(d)(1)(A) and Evidence Rule 613 do not, on their face, require the proponent of the evidence to offer any special corroboration of the witness's purported inconsistent statements. Nevertheless, Slwooko argues that the scope of admissibility under these rules should be limited (as a matter of policy) to instances where the witness's prior inconsistent statement is corroborated by physical evidence ( e.g., a writing that incorporates the prior statement, or an electronic recording of the prior statement).
If Slwooko's appellate attorney had presented this argument in his opening brief as a claim of plain error, we would have rejected it. Slwooko's proposed interpretation (or, rather, reinterpretation) of Evidence Rules 801(d)(1)(A) and 613 is no more than debatable — and we have repeatedly held that when a point of law is debatable, when reasonable judges could differ as to what the law requires, there is no plain error.
Cooper v. State, 153 P.3d 371, 373 (Alaska App. 2007); Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005) ("To be `plain error', an error must be so obvious that any competent judge or attorney would have recognized it. If a claim of error is reasonably debatable — if reasonable judges could differ on what the law requires — then a claim of plain error fails.").
To prevail in her claim that she received ineffective assistance of counsel on appeal, Slwooko must show that her appellate attorney argued her case incompetently, and that there is a reasonable possibility that she was prejudiced by her attorney's incompetence. Here, Slwooko claims that evidence of a witness's inconsistent statements must be supported by some type of special corroboration — and that it was incompetent for her appellate attorney to fail to include this argument in his opening brief. But even if we assume that it was incompetent for Slwooko's appellate attorney to fail to include this argument in his opening brief, Slwooko has failed to demonstrate that she was prejudiced by her attorney's purported lapse ( i.e., prejudiced by the fact that her appellate attorney waited until his reply brief to raise this argument) — because, as a claim of error, this "special corroboration" argument has no merit.
Risher v. State, 523 P.2d 421, 425 (Alaska 1974); Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008).
The judgement of the superior court is AFFIRMED.