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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4122
Appellant, ) Trial Court No. 4FA-S83-3761CR
)
v. ) O P I N I O N
)
RONALD K. LARABY, )
) [No. 1263 - December 4, 1992]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Jay Hodges, Judge.
Appearances: Nancy R. Simel, Assistant
Attorney General, Office of Special Prosecu-
tions and Appeals, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for
Appellant. Carol Greenburg, Office of Public
Advocacy, Fairbanks, and Brant McGee, Public
Advocate, Anchorage, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Ronald K. Laraby was convicted by a jury of attempted
kidnapping and assault in the fourth degree. We affirmed
Laraby's conviction in Laraby v. State, 710 P.2d 427 (Alaska App.
1985) (Laraby I). Laraby separately sought post-conviction
relief, alleging ineffective assistance of counsel. The superior
court rejected his claim; on appeal we remanded for additional
proceedings. Laraby v. State, Memorandum Opinion and Judgment
No. 1319 (Alaska App., February 4, 1987) (Laraby II). The
superior court again found that Laraby had failed to establish
his claim; we affirmed without prejudice to Laraby's right to
seek post-conviction relief on a modified theory of ineffective
assistance of counsel. Laraby v. State, Memorandum Opinion and
Judgment No. 1747 (Alaska App., February 22, 1989)(Laraby III).
Laraby subsequently filed a supplemental post-conviction relief
application, alleging the new theory. Following an evidentiary
hearing, Superior Court Judge Jay Hodges granted the application
and ordered Laraby's attempted kidnapping conviction vacated.
The state appeals. We affirm.
FACTS AND PROCEDURAL BACKGROUND
The facts underlying Laraby's conviction are not in
dispute: Laraby accosted J.P. while she was walking along a path
near the University of Alaska in Fairbanks. Laraby grabbed J.P.
and instructed her to move into some nearby bushes. When J.P.
refused, Laraby jabbed something in her back, told her not to
yell, and repeated his demand. J.P. saw someone walking towards
them; she began screaming and hit Laraby. Laraby released her
and fled. Laraby I, 710 P.2d at 427-28.
Laraby was charged with attempted kidnapping and
attempted sexual assault. At trial, the attorney who then
represented him submitted proposed instructions on fourth-degree
assault as a lesser-included offense of both attempted kidnapping
and attempted sexual assault. The trial judge, Superior Court
Judge Warren W. Taylor, instructed the jury that fourth-degree
assault was a lesser-included offense of attempted sexual assault
but, for reasons not disclosed in the record, omitted the
proposed lesser-included offense instruction as to attempted
kidnapping. Laraby's counsel voiced no objection to the
omission. The jury convicted of attempted kidnapping but
acquitted of attempted sexual assault, finding Laraby guilty of
fourth-degree assault, the lesser-included offense.
On appeal, new counsel undertook Laraby's
representation; the state was also represented by a different
attorney. Neither party was aware that Laraby's trial counsel
had originally proposed a lesser-included offense instruction on
fourth-degree assault as to the attempted kidnapping charge. In
his direct appeal, Laraby argued, among other things, that the
trial court's failure to instruct sua sponte on this lesser
offense amounted to plain error. The state conceded that fourth-
degree assault would have been a lesser-included offense of
kidnapping but maintained that the trial court's failure to
instruct sua sponte on the offense did not amount to plain error.
In affirming Laraby's conviction, we adopted the state's view on
the plain error issue. Laraby I, 710 P.2d at 429 n.3.
Laraby's first application for post-conviction relief
alleged that his trial counsel acted ineffectively in failing to
request a lesser-included offense instruction on fourth-degree
assault as to the attempted kidnapping charge. The superior
court rejected Laraby's claim without deciding whether his trial
counsel acted ineffectively, concluding that Laraby had failed to
show any reasonable possibility of prejudice. On appeal, this
court found the trial court's decision mistaken in this regard,
concluding that Laraby had made an adequate showing of potential
prejudice. We remanded for a decision as to whether trial
counsel's failure to request a lesser-included offense
instruction on the attempted kidnapping charge amounted to
incompetence. Specifically, we indicated that the record was
unclear as to whether trial counsel had tactical reasons for
failing to request a lesser-included offense instruction. Laraby
II at 4-5.
On remand, the parties discovered, for the first time
since Laraby was convicted, that his trial counsel had in fact
proposed a lesser-included offense instruction on fourth-degree
assault as to both attempted sexual assault and attempted
kidnapping.
At the ensuing evidentiary hearing, trial counsel was
questioned about the proposed instruction and testified that he
had no independent recollection of submitting it. Counsel did
not remember discussing jury instructions with the court, either
on or off the record, and he did not recall why the trial court
had not given his proposed lesser-included instruction on the
attempted kidnapping charge. Trial counsel was similarly unable
to recall ever discussing lesser-included offenses with Laraby,
although he testified that this was his normal practice.
When questioned about Laraby's trial, counsel stated he
had been surprised by the verdicts acquitting Laraby of attempted
sexual assault but convicting him of attempted kidnapping.
Counsel remembered that, after hearing the verdicts, he thought
to himself "why didn't I ask for the lesser included or attempted
-- of assault four as to the attempted kidnapping . . . ." Along
this same line, counsel testified: "There's no doubt in my mind
. . . that this wasn't tactical."
At the conclusion of the evidentiary hearing, the
superior court found that Laraby's trial attorney had represented
Laraby competently in requesting the instruction. Because the
sole claim raised in Laraby's post-conviction relief application
was that trial counsel had been ineffective in failing to request
the disputed instruction, the superior court denied relief. In
view of the limited scope of the remand order from this court the
superior court expressed reluctance to inquire into the reasons
why the proposed instruction was never given.
On appeal, this court affirmed the superior court's
ruling as to the narrow issue that had been before it:
ineffective assistance of counsel in failing to request a lesser-
included offense instruction as to attempted kidnapping. We also
found that the superior court did not err in declining to expand
the proceedings to consider the circumstances surrounding the
trial court's failure to give the proposed instruction. We
nevertheless emphasized that Laraby was not precluded from filing
a supplemental application alleging that his trial counsel was
ineffective in failing to make an appropriate objection, on the
record, to the trial court's failure to give the proposed lesser-
included offense instruction. Laraby III at 2-3.
While this court had Laraby III under advisement, the
superior court conducted a supplemental evidentiary hearing,
apparently to preserve a record as to the circumstances
surrounding the trial court's failure to give the proposed lesser-
included offense instruction and trial counsel's failure to
object to the proposed instruction's omission. Judge Taylor (the
trial judge), trial counsel, and Laraby testified.
Judge Taylor testified that, in accordance with his
usual procedure, jury instructions were discussed in chambers,
off the record, with arguments and objections in court, on the
record. Judge Taylor could not recall whether defense counsel had
withdrawn any proposed instructions, and the judge could not
explain why the lesser-included offense for attempted kidnapping
had not been given.
Laraby testified that he did not remember any
discussions with his trial counsel about omitting the lesser-
included offense instruction for attempted kidnapping; indeed,
Laraby recalled no discussions with either his trial attorney or
the court about any instructions. Laraby thought it was strange
that a lesser-included offense instruction was given for one
charge, but not the other.
Laraby's trial counsel testified that he had no
recollection about off-the-record discussions of jury
instructions, no recollection of withdrawing his proposed lesser
instruction, and no recollection of any tactical reason for
failing to object to the omission.
On cross-examination, the state attempted to suggest
that trial counsel might have had tactical reasons to withdraw
the instruction. The state asked counsel if he agreed with Judge
Taylor that a denial of any proposed instruction would normally
have been put on the record. Counsel responded:
Well, I mean -- apparently the record shows
that I requested it, but didn't preserve it
and it wasn't given. All I can conclude is
that I'm not sure whether I might have
forgotten that I'd requested it or that at
some point I didn't think it was worth
arguing about. I mean those are two
possibilities. I don't remember any
discussions off the record that may have led
to one or the other.
Next, the prosecutor asked trial counsel how likely it
was that he would have failed to put an objection on the record
or that he would have "no recollection whatsoever" if he had
actually wanted the lesser-included offense instruction given as
to both of Laraby's charges. Counsel replied:
If I thought that -- I can't imagine why
I -- you know, having asked for it I had --
didn't object to it not being given. I
wouldn't argue something that I couldn't get,
so if the judge had . . . given a set of
final instructions for the two misdemeanors .
. . I'm sure I would have argued for them. .
. . Why I didn't -- if I remember requesting
it why -- why I didn't object to it not being
given. I can't comment now. It certainly
would have been my practice to -- on any
instruction I would have remembered giving to
have objected to it not being given. I -- I
certainly have no recollection that there was
any tactical reason that I wouldn't have . .
. used the lesser included fourth degree
assault because it was a significantly lower
penalty than attempted kidnapping. It, as I
remember the facts, would have been something
that I think the jury would have felt might
be a reasonably compromise verdict.
The prosecutor then pressed trial counsel on the issue
of his trial tactics, suggesting that counsel might have
withdrawn the proposed instruction in the belief that an
instruction on fourth-degree assault as to the attempted
kidnapping charge might have appeared to be a concession as to an
element of attempted kidnapping, thereby inviting the jury to
convict of the greater offense. To this, counsel answered: "I
don't remember thinking anything along those lines. I mean at
that -- I mean if you're trying to refresh for me a possible
tactical line, it doesn't sound familiar."
After this court decided Laraby III, Laraby filed a
supplemental application for post-conviction relief asserting the
modified theory mentioned in the decision: that his trial counsel
was ineffective in neglecting to object to the trial court's
omission of the proposed lesser-included offense instruction.
The matter was assigned to Superior Court Judge Jay Hodges, who
considered all of the evidence developed in connection with
Laraby's initial application. In addition, Judge Hodges held a
further hearing on the supplemental application. At the hearing,
Laraby again testified that he had no recollection of ever
discussing with his trial attorney proposed jury instructions,
the withdrawal of any proposed instructions, or the possibility
of not objecting to the failure to give an instruction on fourth-
degree assault as a lesser-included offense of attempted
kidnapping.
Fairbanks defense attorney Dick Madson also testified
as an expert witness for Laraby. He stated that the only sound
tactical reason he could think of for failing to object to the
omission of an instruction on the lesser-included offense for
attempted kidnapping was to create error. He also stated that he
initially thought it was possible that trial counsel had made a
conscious decision to "go for broke" on the attempted kidnapping
charge, but that his review of counsel's testimony convinced him
that this did not seem likely or reasonable. Madson also
expressed the opinion that trial counsel's failure to object on
the record was not reasonable.
Based on the totality of the evidence, Judge Hodges
found that trial counsel "did not act as a reasonably competent
counsel practicing criminal law when he did not object to the
failure to give the instruction." Judge Hodges went on to find
both a reasonable possibility and a reasonable probability that
the incompetence contributed to Laraby's attempted kidnapping
conviction. On this basis, the judge ordered the attempted
kidnapping conviction set aside.
ANALYSIS
On appeal, the state challenges Judge Hodges' ruling on
two grounds. First, the state argues that the evidence fails to
support the court's implicit finding that trial counsel's conduct
was not tactical. Second, the state asserts that, even if trial
counsel's failure to object to the omission of the disputed
instruction resulted from oversight or neglect, the failure was
not so serious as to amount to constitutionally deficient
representation.
In Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974),
the supreme court set out a two-pronged test to determine whether
a defendant is entitled to a new trial based on claims of
ineffective assistance of counsel. Risher provides that the
defendant must first show that trial counsel's conduct fell below
the minimal range of competence required of an attorney "with
ordinary training and skill in the criminal law." Id. at 424.
The second prong is satisfied by establishing a reasonable doubt
as to whether the incompetence contributed to the verdict.
Jackson v. State, 750 P.2d 821, 824 (Alaska App. 1988).
Both of the state's arguments address the first prong
of the Risher standard; the second, or prejudice, prong is not in
dispute. The state's first argument is a factual one. The state
notes that, as part of the burden of establishing attorney
incompetence, an applicant for post-conviction relief must prove
that trial counsel's actions did not result from sound tactical
choice. State v. Jones, 759 P.2d 558, 569 (Alaska 1988). The
state points out that, during its cross-examination of trial
counsel at the evidentiary hearing, the prosecution suggested a
potentially sound tactical reason to explain counsel's failure to
object to the omission of the disputed instruction: that the
lesser-included offense of fourth-degree assault might have
conflicted with counsel's theory of defense by effectively
inviting the jury to find one element of attempted kidnapping to
have been established. Relying on trial counsel's inability to
recall precisely why he had failed to object to the omission of
the disputed instruction, the state insists that "[t]he record in
this case does not eliminate the possibility that [trial counsel]
may have had a sound tactical reason for failing to object to the
omission. . . ."
In advancing this argument, however, the state seems to
assume that Laraby was required to adduce proof ruling out
virtually any possibility of tactical choice. Yet a post-
conviction relief action is a civil proceeding; as such, it is
subject to the normal rules governing civil cases. See Hensel v.
State, 604 P.2d 222, 235 (Alaska 1979). An applicant for post-
conviction relief thus bears the burden of proof by a
preponderance of the evidence. Under this standard, Laraby's
duty to overcome the presumption of competence obligated him to
establish that his trial counsel's failure to object was probably
not the result of tactical choice; conversely put, Laraby had the
burden of proving that this failure was more likely than not the
result of error or omission. Laraby had no duty to present
conclusive proof on the issue or to rule out all possibility of
tactical choice; nor was Judge Hodges obligated to make his
finding on the basis of such proof.
The pertinent issue, then, is whether the evidence
below was sufficient to allow the trial court to find, by a
preponderance, that trial counsel's failure to object was not
tactical. Because the issue is a factual one, the trial court's
findings must be accepted unless clearly erroneous. Merrill v.
State, 457 P.2d 231, 233-34 (Alaska 1969), modified on other
grounds, Donnelly v. State, 516 P.2d 396, 399 n.6 (Alaska 1973).
And, as is normally the case, in the absence of express findings,
we must view the record in the light most favorable to the
prevailing party below, here Laraby. See Ahkivgak v. State, 730
P.2d 168, 171 (Alaska App. 1986). We believe that, when the
record is construed in the light most favorable to Laraby, there
was ample evidence to enable Judge Hodges to find that trial
counsel's failure to object to the omission of the disputed
instruction was more likely than not the result of error or
omission rather than of sound tactical choice. The trial court's
factual finding on this issue was not clearly erroneous.
The second argument advanced by the state is a legal
one. The state insists that even if trial counsel's failure to
object was due to error or oversight, this error was not
sufficiently significant to render counsel's performance
constitutionally deficient. The state emphasizes that the
constitutional standard for ineffective assistance of counsel is
one of minimal competence and that the constitution does not
guarantee error-free representation. According to the state,
trial counsel's failure to object was at most the type of mistake
that any trial court attorney might make. The state further
notes that, at the time of Laraby's trial, the issue of whether
fourth-degree assault is a lesser-included offense of attempted
kidnapping had not yet been resolved in Alaska. See Galbraith v.
State, 693 P.2d 880, 881 n.1 (Alaska App. 1985) (finding for the
first time that fourth-degree assault is a lesser-included
offense of attempted kidnapping).
The ultimate question of whether an attorney's perform-
ance falls below the minimal level of competent representation
presents a mixed question of fact and law as to which this court
independently reviews the trial court's conclusions. Jackson,
750 P.2d at 825.
The state correctly notes that the status of fourth-
degree assault as a lesser-included offense of attempted
kidnapping had not been definitively resolved at the time of
Laraby's trial. Yet this was not an issue on which conflicting
authority supported opposing conclusions. The basic analytical
framework for determining whether a lesser offense should be
deemed included in a greater was well-settled. No existing
authority suggested that, under this framework, fourth-degree
assault would not be considered a lesser-included of offense of
attempted kidnapping.
Moreover, even if the unresolved status of the case law
would have made it possible for competent counsel to miss the
issue, the inescapable fact in the present case is that Laraby's
counsel did not miss it. The precise question here is thus
whether trial counsel, having seen that fourth-degree assault was
properly a lesser-included offense of attempted kidnapping and
having affirmatively proposed an instruction, thereafter acted
incompetently in neglecting to object to the trial court's
omission of the proposed instruction.
Given the potential significance of a lesser-included
offense in a case such as this, the fundamental nature of an
attorney's duty to protect the rights of a client with respect to
such matters,1 and the straightforward manner in which that duty
could have been satisfied in the present case -- that is, by
simply noting an objection on the record -- we conclude that
counsel's omission cannot lightly be dismissed as the type of
mistake that falls within the norm of competent representation.
The superior court did not err in concluding that Laraby's trial
counsel breached his duty of competent representation.
The superior court's order vacating Laraby's conviction
of attempted kidnapping is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. In this regard, it is not insignificant that, under the
American Bar Association's Standards for Criminal Justice,
decisions as to lesser-included offenses are ranked among the
most important in a criminal case and are viewed comparable to
decisions as to the charges to which an accused should plead.
For this reason, the standards advise not only that defense
counsel should consult fully with the accused on issues involving
lesser-included offenses, but also that the accused should retain
the ultimate decision on such matters. I Standards for Criminal
Justice 4-5.2 and commentary at 4.68 (1982).