Notice: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL ALEXANDER, )
) Court of Appeals No. A-2764
Appellant, ) Trial Court No. 4FA-S87-2137CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1242 - August 21, 1992]
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Jay Hodges, Judge.
Appearances: James M. Hackett, Fairbanks,
for Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Coats, Judge, Andrews and Wolverton,
Superior Court Judges.* [Bryner, Chief
Judge, and Mannheimer, Judge, not
participating.]
COATS, Judge.
A jury convicted Michael Alexander of first-degree
murder and kidnapping. AS 11.41.100(a)(1); AS 11.41.300(a)(1).
Superior Court Judge Jay Hodges sentenced Alexander to the
maximum ninety-nine-year sentence on each conviction, imposed
these sentences consecutively, and ordered that Alexander would
not be eligible for parole. Alexander appeals his conviction and
sentence. We affirm.
K.S., a West Valley High School student, left her
Fairbanks, Alaska home around 8:45 p.m. on March 23, 1987, to
return to nearby West Valley High to retrieve a book from her
locker. K.S. never returned home. K.S.'s parents found the
family automobile in the West Valley High parking lot with the
engine running and the keys in the ignition. The body of the
young girl was found on the outskirts of Fairbanks on March 24,
1987, around 11:30 p.m., lying in the snow on the side of
Springer Road.
After a much publicized police investigation which had
concentrated on several key suspects, Alaska State Troopers (AST)
arrested appellant Michael Alexander. At trial, the state relied
heavily on blood, hair, fiber, and glitter evidence to link
Alexander to K.S.'s body. Jeff Dayton testified that he found
the decedent's body at about 11:30 p.m. on March 24, 1987.
Trooper Richard Smith testified that he responded to the scene
after midnight and photographed tire marks and footprints.
Forensic pathologist Michael T. Propst estimated decedent's death
at about 2:00 a.m. on March 24, 1987. Based on lividity
patterns, Propst opined that the victim had been placed on her
back and then later moved and placed face down.
AST Investigator James McCann explained the importance
of trace evidence which is transferred to and from the crime
scene; testified that there was no evidence of a struggle at the
scene of the abduction; stated that, when he arrived at the
Springer Road location, decedent's body had not yet assumed the
temperature of the scene; noted that there was a fingerprint on
the victim's shoe that was never identified; and testified that
he observed glitter-like material on the decedent's body.
Through Investigator McCann, the state played recordings of
interviews in which Alexander told police that he had been
sitting in his car the night K.S. was abducted, that he had
witnessed some people put her into a red car as she screamed, and
that he then went to a Denny's restaurant without reporting the
incident to the police.
The state introduced evidence of stains found on dece
dent's underpants. FBI Serologist Mark Babyak testified that
semen stains on K.S.'s undergarments had the presence of both A
and H factors in two stains, consistent with a person having type
A blood and being a secretor; Agent Babyak testified that
Alexander was type A and a secretor. Babyak further stated that
he found dried stains with the H factor alone, consistent with a
person having type O blood and being a secretor. While he did
not know whether K.S. was a secretor, Agent Babyak testified that
she had type O blood. Babyak testified that in the five stains
with only H factors, the H factor came either from the victim or
from the semen of an O-type secretor. However, the agent also
stated that the stains with A-type factors had to have come from
someone with type A blood and could not have come from someone,
like the victim, with type O blood.
Several law enforcement officers testified regarding
seizures of hair, fiber, fabric, glitter, debris, and other trace
evidence from Alexander's car and two of his residences.
Alexander's estranged wife, Darla, testified that she surrendered
several bottles of glitter to police which had been in the family
residence for use by the children during the time Alexander lived
there. Toni Harris described furniture and chattels she had
helped Alexander move from his family residence to another
apartment. FBI Agent Robert Webb testified as a polymer
expert that glitter particles found on the decedent's body and
clothing, and the medical examiner's sheets, were "identical" or
"consistent" with the glitter samples surrendered by Darla
Alexander. FBI Agent Chester Blythe testified as a hair and
fiber expert that two head hairs and a pubic hair found on the
decedent's clothing were "consistent with having come from
[Alexander]." He testified that it was rare, but not impossible
for a person to have head hair which matched another person and
also to have pubic hairs which matched the same person. Blythe
testified that he found fibers on the decedent which were "the
same," "identical," or were consistent with samples taken from
Alexander's car and his couch. Blythe also found hair fragments
on the victim, too small for comparison, consistent with African-
American hair types. Alexander is African-American.
Thomas Wickham, the manager of the Mom & Pop's grocery
store near the school and Alexander's employer, testified that
Alexander's time card showed that Alexander did not clock in on
March 23 (the day K.S. disappeared) and that Alexander had worked
from 1:30 to 2:30 p.m. on March 24 (the day the body was found).
The defense strategy at trial was to establish or
suggest a nearly complete alibi, that the physical evidence was
inconclusive, and that someone else -- possibly another suspect
such as Robert M. or Bob H. -- had committed the crimes but the
police had accused Alexander in a rush to close the case.
Two defense witnesses stated that they drove down
Springer Road at 7:30 and 9:30 p.m., respectively, on the evening
of March 24, and saw no body on the roadside. Two additional
witnesses testified that between 10:00 p.m. and midnight on
March 24 they saw a Caucasian man along the side of Springer Road
in the area where the body was later found. Burbie Robar
testified that, at some time after 9:00 p.m. on the night of
March 24, she had to swerve to avoid hitting a Caucasian man who
was alongside a dark car parked on the shoulder of Springer Road
in the area where the body was discovered. She stated that the
man was carrying something that appeared to be a large, red, wet
bundle -- possibly something wrapped in a blanket or sleeping
bag. Trooper Carol Solomon testified for the defense that she
had seen the vehicle of another suspect in the case, Robert M.,
in the area at around 11:00 - 11:30 p.m. that same night. Robar
was unable to identify Robert M., a Caucasian, as the man she had
seen alongside Springer Road.
Alexander called witnesses to establish his whereabouts
on the night of March 23 and 24. Gilbert Somers testified that
he had seen Alexander at the Mom & Pop's on March 23 between 7:00
and 8:00 p.m. and believed that he recalled Alexander saying
something about meeting someone later at a Denny's restaurant.
Arthur Fournier, an employee of Mom & Pop's and a classmate of
the victim, testified that Alexander was in the store between
7:00 and 8:00 p.m. on March 23 and that it was not unusual for
Alexander to be around when he was not scheduled to work. On
March 24, according to Fournier, Alexander was working at
Connie's Music Studio at about 10:00 - 11:00 p.m. Fournier
stated he talked to Alexander from approximately 11:00 p.m. until
midnight. Tonya Brownlie testified that Alexander helped her
lockup her salon, located next to Mom & Pop's, at about 10:00
p.m. on March 24.
Pastor Robert Eason testified that he saw Alexander at
Mom & Pop's during the evening of March 23 and at noon on March
24. He further testified that, on the night of March 24,
Alexander came to his wife's shop, Connie's Music Studio, and
helped paint. Pastor Eason testified that Alexander was with him
at the studio from about 9:00 - 10:00 p.m. until 3:30 - 3:45 a.m.
the next day. Eason's wife also testified that she had seen
Alexander at the studio at about 10:00 or 11:00 p.m. on March 24.
Pastor Eason testified that when the police arrested Alexander he
was present, and, when they interviewed Eason and he related
being with Alexander on March 24, the police called him a liar
and "got real upset."
The defense called AST Investigator Paul Bartlett.
Bartlett testified that, although he made tire and footprint
impressions at the West Valley High parking lot and the Springer
Road location, he was unable to link any impressions to
Alexander. He also stated that he had, at one point, concen
trated the investigation on Robert M. and accused Robert M. of
murdering the victim.
Robert M. and Bob H. were called by the defense. Both
men described being accused by the police of involvement in the
murder and having been subject to intense police scrutiny.
Timothy Gilbert testified that police told him that they had
"good evidence" against Robert M., that he wore a wire to record
conversations with Robert M., and that Robert M. asked him to
fabricate an alibi for him for the night of March 23. Both
Robert M. and Bob H. denied any involvement in the crimes.
Defense investigator Robert Nearing testified that it
took 35 minutes to travel 28 miles, one way, from Alexander's
residence to the Springer Road location. He further testified
that the 32.8 miles from the high school to the Springer Road
site took 45 minutes to drive at the speed limit.
Benjamin Smith, a West Valley High student, testified
that he left the parking lot area (where the victim's car was
later found) at 9:30 p.m. on March 23 but that K.S.'s car was not
in the lot at that time. The state called Amy Voigt, as a
rebuttal witness, to testify that she saw K.S.'s car in the lot
at about 8:50 p.m. on March 23 when she picked her sisters up at
West Valley High.
The defense argued that, in their rush to close the
case, the police had accused the wrong person and that, based on
the testimony of the witnesses who testified that Alexander was
with Eason the night of March 24, it was impossible for Alexander
to have dumped K.S.'s body on Springer Road.
The jury rejected the defense theory and convicted
Alexander of kidnapping and first-degree murder.
Alexander first contends that Judge Hodges erred in
denying his motion for a change of venue from Fairbanks. The
state concedes that Fairbanks' media covered the K.S murder and
investigation extensively. Local newspaper articles commented on
the purported strength of the case against Alexander, reported
the existence of forensic evidence, and discussed Alexander's
prior criminal record. Alexander claims that Judge Hodges erred
in not allowing him the opportunity to show, in a pretrial
hearing, that there was a substantial likelihood that he could
not receive a fair trial in Fairbanks.
The right to an impartial jury is guaranteed by the
sixth amendment to the U.S. Constitution and article 1, 11 of
the Alaska Constitution. Alaska Statute 22.15.080(1) permits the
trial court to change the venue of a trial when "there is reason
to believe that an impartial trial cannot be had."
In Wylie v. State, we stated:
Generally, criminal trials should be
held where the alleged offense occurred.
Nevertheless, the trial court has discretion
to change venue where necessary to ensure a
fair trial. The general rule is that jury
selection should be commenced in the venue of
the crime and then moved only if voir dire
reveals that an impartial jury cannot be
obtained.
797 P.2d 651, 656 (Alaska App. 1990) (citations omitted). In
Chase v. State, we stated that: "[A] trial judge will seldom be
found to have abused his discretion in denying a motion for
change of venue prior to jury voir dire." 678 P.2d 1347, 1350
(Alaska App. 1984). The Chase decision quoted from Mallott v.
State:
Whether pretrial publicity is so prejudicial
and so pervasive that no such jury could be
selected to try a particular case in a
particular locale is a determination that is
exceedingly difficult to make prior to the
questioning of potential jurors. Therefore
almost without exception trial courts have
been permitted the discretion to rely on voir
dire rather than their own speculation as to
the impact of pretrial publicity.
608 P.2d 737, 746 (Alaska 1980). It is therefore clear that
Judge Hodges did not abuse his discretion in conducting a voir
dire examination to attempt to select an impartial jury in
Fairbanks. From the record, it does not appear that
there is any reason to conclude that the jury which tried
Alexander was other than impartial. In the instant case, of the
thirty-one people the attorneys questioned, Alexander challenged
only one prospective juror for cause related to pretrial
publicity; the challenge was granted. The parties agreed to
release another person due to his exposure to the case and his
feelings about it. Alexander did not challenge any of the
selected jurors for cause,1 and did not request additional
peremptory challenges. Alexander individually and privately
questioned each prospective juror extensively about what they
might know about the case, the victim, the defendant, and the
witnesses. The selected jurors all stated that they had only
heard or read basic background and rumor about the case and were
not acquainted with the specifics of the case or the details of
the accusations.
After selecting a jury, Alexander did not renew his
motion for a change of venue. When a defendant does not renew
his motion to change venue after jury voir dire, the failure to
renew the motion is considered to be an "apparently deliberate
waiver" of the motion to change venue. Mallott, 608 P.2d at 748;
Wylie, 797 P.2d at 656. We note that although Alexander has
contended that his attorney did not adequately represent him in
other respects, he has not alleged that his trial attorney erred
in failing to renew the motion for change of venue. Indeed, from
the record before us, it appears that Alexander and his attorney
could well have failed to renew the motion to change venue
because Alexander and he were satisfied that the jury was
impartial. We accordingly find no merit to Alexander's
contention that Judge Hodges erred in denying his motion to
change venue.
Alexander next raises several contentions that he
received ineffective assistance from his trial counsel. Our
supreme court has established a two-pronged test to determine
whether a defendant is entitled to a new trial based on claims of
ineffective assistance of counsel. Risher v. State, 523 P.2d 421
(Alaska 1974). Risher provides that the defendant must initially
show that his attorney's conduct fell below the minimal range of
competence required of a counselor "with ordinary training and
skill in the criminal law." Id. at 424. The attorney's
reasonable tactical decisions are virtually immune from
subsequent challenge even if, in hindsight, better approaches
could have been taken. State v. Jones, 759 P.2d 558, 569-70
(Alaska App. 1988). The second prong is satisfied by a showing,
by the defendant, of prejudice. Id. at 572. The defendant must
establish that a reasonable doubt exists that his attorney's
incompetence contributed to the verdict. Jackson v. State, 750
P.2d 821, 824 (Alaska App.), cert. den'd, 488 U.S. 828 (1988).
The United States Supreme Court has held that the sixth
amendment requires that a defendant be afforded a new trial if
"[t]he defendant [can] show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland
v. Washington, 466 U.S. 668, 694 (1984). "A reasonable
probability is a probability sufficient to undermine confidence
in the outcome." Id.
Alexander extensively discusses the standard which
courts in Alaska should apply to ineffective assistance of
counsel claims and contends that Judge Hodges did not apply a
correct test in evaluating his claims. Alexander apparently
agrees with the trial court's interpretation of the first part of
the Risher test: that the defendant must initially show that his
attorney's conduct fell below the minimum range of competence
required of a counselor "with ordinary training and skill in the
criminal law." 523 P.2d at 424. However, Alexander quarrels
with the trial court's interpretation of the prejudice prong of
the Risher test. We believe that Jones, 759 P.2d at 572-73
presents a thorough discussion of what the defendant must show to
establish prejudice under the Risher standard. In Jones, we
stated:
Although Risher's prejudice prong is
significantly less demanding than
Strickland's, the state and federal standards
are nevertheless similar in one important
feature: both impose upon the accused the
affirmative burden of proving
prejudice. . . .
. . . .
Because Risher and Strickland alike
require the accused to prove both
incompetence and actual prejudice, it follows
that a mere conclusory or speculative
allegation of harm will not suffice. The
accused must do more than present
"abstractions without context." Once the
performance prong of the Risher standard has
been established, the accused must, in
addition, make a specific factual showing
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[.]"
. . . .
. . . Once the accused demonstrates that
trial counsel's incompetence actually had an
adverse effect on the case, the court, under
Risher, need only find a reasonable doubt
that the incompetence contributed to the
conviction.
When, on the other hand, the accused
fails to allege or show that counsel's
incompetence resulted in any actual adverse
impact and relies instead on the fleshless
allegation that prejudice in some imaginable
but unsubstantiated form was reasonably
possible, the burden of proving prejudice is
not satisfied.
Id. (alterations in original)(citations omitted).
After an extensive evidentiary hearing, Judge Hodges
made oral findings. As we have previously stated, Alexander made
numerous claims that his attorney did not adequately represent
him in trial. As to most of these claims, Judge Hodges found
that Alexander's trial attorney provided adequate representation.
However, Judge Hodges found that trial counsel had not
effectively represented Alexander in some areas. He concluded
that trial counsel should have obtained work data from the FBI
which would have helped counsel to evaluate the FBI testing. He
found that trial counsel was ineffective in failing to have the
glitter and fiber evidence independently tested and in failing to
retain a forensic expert to assist him in cross-examination. He
also concluded that trial counsel was ineffective in not being
more familiar with Alexander's recorded statements, which were on
eleven hours of tape, to possibly present further statements from
the tape. However, Judge Hodges concluded that these alleged
errors by trial counsel did not prejudice Alexander. In making
this finding, Judge Hodges stated:
With respect to the second prong, the
defense must show . . . the trial counsel's
failure to perform as a competent counsel
would create a reasonable doubt that the
verdict had been effected. . . . [B]ased on
the evidence which the court has had an
opportunity to listen to throughout the
course of the trial as well as the evidence
which was presented at the time of the
evidentiary hearing, . . . even if the
evidence had been presented at trial the
verdict would not have been different.
It appears to us that Judge Hodges used the correct standard in
evaluating whether Alexander had established prejudice.
We have extensively reviewed the evidence which Judge
Hodges considered in rejecting Alexander's motion for a new trial
which was based on ineffective assistance of counsel. We
conclude that his findings are supported by the record. At the
evidentiary hearing on the ineffective assistance of counsel
issue, Alexander's main witness was Lucien Haag, an expert on
forensic evidence. He testified concerning the glitter, hair,
and fiber evidence which the state presented at Alexander's
trial. From our review of Haag's testimony, we believe that
Judge Hodges could properly find that an expert like Haag would
have been useful to Alexander's trial counsel for cross-
examination and to independently test glitter, hair, and fiber
evidence.2 However, Judge Hodges could properly conclude Haag's
testimony did not significantly undermine the testimony of the
FBI's experts.3 In particular, Haag conceded the importance of
the fact that Alexander's head and pubic hairs were comparable to
hairs which the police found on the victim's body. Basically,
Haag conceded that nothing which he found would exclude Alexander
as the murderer and that much of the evidence pointed toward
Alexander.
With respect to Alexander's argument that his trial
counsel should have been more familiar with the statements which
he made during his eleven hours of conversation with the police,
appellate counsel has not shown how admission of any additional
statements which Alexander made might have had an impact on his
case.4
After thoroughly reviewing the record, we believe that
Judge Hodges could properly find that in all other respects
Alexander's trial counsel was effective. We accordingly conclude
that Judge Hodges did not err in refusing to grant Alexander a
new trial based on ineffective assistance of counsel.
Alexander next contends that his sentence was
excessive. Judge Hodges sentenced Alexander to ninety-nine years
of imprisonment for murder in the first degree and to a
consecutive ninety-nine years of imprisonment for kidnapping.
Judge Hodges imposed these sentences consecutively, and ordered
that Alexander would be ineligible for parole for the maximum
period of time allowable by law. Alexander points to Thompson v.
State, where we stated:
We do not believe that a sentence in excess
of ninety-nine years can be justified except
where the trial court finds that in order to
protect the public the defendant must spend
the rest of his life in prison without any
possibility of parole.
768 P.2d 127, 133-34 (Alaska App. 1989). Alexander argues that
such a finding is inappropriate in his case.5
In the trial court and on appeal, Alexander pointed to
his good military record, his good work record, his family
support, and the progress which he had made in the community
following his release from probation in 1982. In sentencing
Alexander, Judge Hodges recognized these favorable qualities.
However, Judge Hodges concluded from Alexander's present offense
and his extensive prior record that Alexander had very poor
prospects for rehabilitation, that he was a very dangerous
offender, and that it was necessary to incarcerate Alexander for
the remainder of his life in order to protect the public.
Although we believe that such findings and such a sentence are
appropriate only in rare circumstances, we believe that Judge
Hodges' findings and sentence are supported by the record in this
case. See Nukapigkak v. State, 663 P.2d 943, 946 (Alaska 1983);
Washington v. State, 828 P.2d 172, 175 (Alaska App. 1992); Stern
v. State, 827 P.2d 442, 450 (Alaska App. 1992); Weitz v. State,
794 P.2d 952, 958 (Alaska App. 1990); Hastings v. State, 736
P.2d 1157, 1160 (Alaska App. 1987); Krukoff v. State, 702 P.2d
664, 666 (Alaska App. 1985) (cases finding not clearly mistaken
sentences that required the defendant to spend the rest of his
life in prison without any possibility of parole).
In sentencing Alexander, Judge Hodges placed primary
emphasis on Alexander's extensive criminal background. Alexander
has several prior felony convictions. In 1969 he was convicted
in Austin, Texas for passing a forged U.S. Treasury check. In
1971 at Ft. Leavenworth, Kansas, he was convicted of possession
of heroin. In 1973 he was convicted of robbery in Anchorage,
Alaska; the robbery was committed with a firearm. In October
1973 Alexander was again convicted of robbery; again the robbery
was committed with the use of a firearm. In June 1976 Alexander
raped a sixteen-year-old woman at knifepoint and was convicted in
Anchorage of statutory rape and sentenced to seven and one-half
years of imprisonment. In addition to these felony convictions,
the state presented extensive evidence that Alexander had
committed other prior assaults, including sexual assaults. Judge
Hodges found this evidence to be credible and gave it weight in
sentencing. This background supports Judge Hodges' conclusion
that Alexander is a dangerous offender for whom there is little
hope for rehabilitation. This record leads to the conclusion
that Alexander's history of prior assaultive conduct,
particularly the sexually assaultive conduct, escalated to the
instant offense. This history provides every reason to believe
that Alexander would commit similar offenses if he were ever
released from imprisonment. We accordingly conclude that Judge
Hodges was not clearly mistaken in imposing a sentence which
requires Alexander to spend the rest of his life in prison
without any possibility of parole.
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Alexander was denied a challenge on S.F., an
alternate who did not participate in the verdict. The defense
was concerned that the alternate juror knew two of the witnesses.
2. According to Alexander's trial counsel, he
consulted with a forensic expert who reviewed the FBI's report.
Counsel stated that he researched glitter manufacturing, reviewed
a transcript from a similar forensic evidence case to aid in
trial preparation, and felt that he was adequately prepared to
cross-examine the FBI hair, fiber, and polymer experts in the
case without having the evidence independently tested or
retaining an expert to assist with cross-examination. A review
of the trial attorney's cross-examination of the state's experts
demonstrates this background.
3. We have considered the fact that counsel did not
obtain the FBI work data as subsumed within the failure of
counsel to obtain an independent expert to test the glitter,
hair, and fiber evidence and to aid counsel in cross-examination.
The parties and trial court treated this issue as subsumed.
4. At trial, Alexander's counsel argued that
Alexander's statements to the police had been made in the context
of eleven hours of questioning by police interrogators and that
the brief statement placing Alexander near the scene of the
abduction was "babble" which simply did not make sense.
Appellate counsel has not made any specific suggestions
concerning what other tactic would have been more effective to
place Alexander's statements in context.
5. In Stern v. State, we stated:
When a sentencing judge restricts parole
eligibility, the judge must specifically
address the issue of parole restriction,
setting forth with particularity his or her
reasons for concluding that the parole
eligibility prescribed by AS 33.16.090 and AS
33.16.100(c) - (d) is insufficient to protect
the public and insure the defendant's reforma-
tion. When the defendant's sentence is
lengthy, as in Stern's case, Alaska law
presumes that questions of discretionary
release are better left to the Parole Board,
since the Board evaluates the advisability of
parole release in light of the defendant's
tested response to Department of Corrections
rehabilitative measures. However, because
the Alaska legislature has affirmatively
given sentencing judges the power to restrict
or deny parole eligibility, this presumption
(that parole release of long-term prisoners
should normally be evaluated after the
defendant has established an institutional
history) must remain rebuttable.
827 P.2d 442, 450 (Alaska App. 1992) (citations omitted).
