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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN HURN, III, )
) Court of Appeals No. A-3601
Appellant, ) Trial Court Nos. 3KN-90-617
Civ.
) and 3KN-89-96 Cr.
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1340 - April 8, 1994]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Charles K. Cranston and
J. Justin Ripley, Judges.
Appearances: Ben Esch, Anchorage, for Appel
lant. John A. Scukanec, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Coats and Mannheimer, Judges, and
Wolverton, District Court Judge.* [Bryner,
Chief Judge, not participating.]
MANNHEIMER, Judge.
John Hurn, III, appeals his convictions and the
sentences he received for second-degree murder, AS 11.41.110(a),
and first-degree assault, AS 11.41.200(a). He also appeals the
superior court's denial of his petition for post-conviction
relief. We affirm.
Randy Joe Sipes, Thomas Krutsch, and the Steger
brothers, Kevin and Scott, arrived at Millie's Moose River Inn in
Sterling, Alaska, around 8:00 p.m. on January 26, 1989. During
the evening, the men drank beer and played pool. Hurn, who lived
across the street from Millie's, arrived at some point in the
evening and played pool with the group. Hurn asked Kevin Steger
if he would plow Hurn's driveway, and Kevin agreed. Hurn and
Kevin Steger left the bar together and returned sometime later.
Hurn left the bar later in the evening, but he returned
after a short time, reporting that he had run out of gas.
Following his return, Hurn and Kevin Steger got into an argument,
apparently because Hurn offered Kevin psychedelic mushrooms if
Kevin would tow Hurn's car. Kevin, who was evidently against the
use of drugs, was angered by Hurn's offer and loudly informed
Hurn that he did not take drugs.
Shortly after this exchange of words, Hurn left the
bar. Kevin, still angry at Hurn, followed him out. The other
three men (Sipes, Krutsch, and Scott Steger) followed close
behind. Within five minutes, a shooting occurred in the parking
lot that left Kevin Steger dead and Scott Steger seriously
wounded.
Although the testimony is somewhat conflicting, it
appears that Hurn and Kevin continued their argument while the
remaining three men tried to find their car keys. Sipes
testified that he saw Hurn turn away from Kevin Steger, but that
Kevin grabbed Hurn by the shoulder and spun him around. The two
men started to fall to the ground. As they fell, Hurn produced a
handgun and started shooting. Upon hearing the gunfire, Scott
Steger ran toward Hurn and his brother, then jumped on Hurn in an
effort to subdue him.
Kevin Steger was shot twice in the upper chest. Scott
Steger was shot three times, twice in the abdomen and once in the
right leg. Another bullet also tore through Sipes's coat, but
Sipes later concluded that this had been a stray shot rather than
a deliberate attack.
Sipes and Krutsch ran into the bar and told the bartend
er, Arthur Hirth, to call the police and an ambulance. Hurn
followed them into the bar, handed his gun to Hirth, and told
him, "Call the police. I shot two people." Hurn then turned to
Mildred Hirth, the owner of the bar, and said, "I'm sorry Millie,
I'm sorry Millie. I didn't mean to do it; I didn't mean to do
it. They made me do it." Hurn also said that he needed to
contact his father, because he would need to hire a lawyer.
Mildred Hirth called the police, and Hurn was later
arrested. The state troopers recovered nine spent shell casings
from the parking lot.
Hurn's Attacks on His Indictment
Hurn's first point on appeal concerns the validity of
his indictment. Hurn asked the superior court to dismiss the
indictment because the prosecutor failed to present evidence of
statements Hurn made to Mildred Hirth and to two police officers,
Officer Don Fritz and Trooper Diana Roop, concerning the reason
for the shooting. Mildred Hirth stated that Hurn entered the bar
after the shooting and told Hirth that he had shot someone, that
he had not wanted to do it, and that the other men had ganged up
on him. Trooper Roop apparently would have testified that Hurn
told her that he had not meant to hurt anybody and that the last
thing he remembered was the other men coming after him. Officer
Fritz apparently would have testified that Hurn told him that he
had been trying to go home when four men jumped him.1
A prosecutor has a duty to present exculpatory evidence
to the grand jury under Alaska Criminal Rule 6(q). Frink v.
State, 597 P.2d 154, 164 (Alaska 1979). However, "the
prosecutor's obligation to present exculpatory evidence to the
grand jury does not turn the prosecutor into a defense attorney;
the prosecutor does not have to develop evidence for the
defendant and present every lead possibly favorable to the
defendant." Id. at 166. Moreover, Rule 6(q) does not require
the prosecutor to present any and all potentially exculpatory
evidence. Rather, the prosecutor is required only to present
evidence "substantially favorable" to the defendant. Lipscomb v.
State, 700 P.2d 1298, 1302 (Alaska App. 1985).
At least with respect to Hurn's statements to the two
officers, it does not appear that this evidence was "substantial
ly favorable" to Hurn's defense. The record contains neither
transcriptions nor summaries of Hurn's full conversations with
the two officers. However, it is clear that the particular state
ments Hurn claims should have been presented to the grand jury
were but portions of Hurn's conversations with the officers.
Rather than seeking admission of these statements at trial, Hurn
unsuccessfully asked the trial judge to suppress his conversa
tions with the two officers. This strongly suggests that Hurn's
grand jury motion relied on lifting portions of his conversations
with the officers out of context, and that the conversations,
viewed as a whole, were not "substantially favorable" to Hurn.
We note that Hurn's statements to the officers were not excited
or spontaneous exclamations; rather, Hurn made these statements
when the officers arrived in response to a telephone summons to
investigate the shooting, after Hurn had already announced that
he thought he needed an attorney.
Moreover, a prosecutor's duty to present exculpatory
evidence is satisfied if the omitted evidence would be cumula
tive. For example, in Doisher v. State, 632 P.2d 242, 251
(Alaska App. 1981), rev'd on other grounds, 658 P.2d 119 (Alaska
1983), this court found no prejudice when the prosecutor omitted
several of the defendant's denials because one of the defendant's
statements of denial was presented to the grand jury. Similarly,
in Dyer v. State, 666 P.2d 438, 445 (Alaska App. 1983), this
court found that the prosecutor's failure to present evidence
that a witness had lied was not cause for invalidating an
indictment when the grand jury was already aware that the witness
was an admitted perjurer.
In the present case, Hurn's protestations that he acted
in self-defense were likewise cumulative. During the
presentation of Hurn's case to the grand jury, the prosecutor
played a tape of Hurn's conversation with the 911 operator.
During the exchange between Hurn and the 911 operator, Hurn said,
"The men were attacking me. I shot them in the body: that was
the closest thing to shoot." Hurn went on to tell the operator,
"My state of mind ... right now [is that] I'm worried about my
life ... I want you guys out here now." For these
reasons, the superior court did not abuse its discretion when
the court denied Hurn's motion to dismiss the indictment for
failure to present exculpatory evidence.
Hurn raises one more attack on the indictment. He
argues that the prosecutor violated Criminal Rule 6(k) by
improperly interrupting the grand jury's deliberations and
redirecting their discussion of the case. Hurn's claim is based
on the fact that, after the grand jury began deliberating, the
prosecutor interrupted their deliberations to inform the jurors
that their voices could be heard outside the room:2
Mr. Foreman, ... I thought I would let you
know that the construction of this room is
such that if people [inside the room] are
very loud, people standing out in the lobby
of the courthouse can hear [them]. ... [I
just wanted] to let you know that. ...
[P]eople are [not] trying to listen, but it's
hard not to hear you sometimes, [even] when
[we are] out in the lobby area, even some dis
tance away. So I just wanted to [inform] you
of that.
The prosecutor then took the opportunity to remind the grand jury
of their task under Criminal Rule 6(q):
The other thing I thought, I hadn't said it
at the end of the case, and I thought it
might be helpful to remind you again, ...
sometimes my experience with past grand
jurors [is that they] sometimes tend to
forget ... [this] part of [their] function.
And that is one of the things that the court
told you at the beginning ... but it
sometimes helps to be reminded now and then,
is simply that you don't determine the
ultimate guilt or innocence of anybody. That
is, the grand jury's function is to decide
[whether] somebody [should] be required to
stand trial, and if so, on what charges. So
the question is, ... would the evidence be
enough to require that they stand trial,
could a trial jury convict them, find them
guilty beyond a reasonable doubt, if the
evidence is unexplained or uncontradicted.
The grand jury foreman replied that the jury had been
taking the nature of their function into account. The foreman
then volunteered that the grand jurors were presently discussing
"intent". The prosecutor responded that he did not want "to get
involved with [their] deliberations".
The grand jury foreman then changed the subject: "We
want -- while you're here ... I would like to have something
clarified, and that is the legal use of ... deadly force.
Explain that again." A discussion on the use of deadly force and
the definition of serious bodily injury ensued. The jurors asked
for copies of relevant statutes and the prosecutor left to
procure copies. By the time the prosecutor returned with
photocopies of the requested statutes, the grand jury had already
reached their decision. According to Hurn, the grand jury
reached their decision nine minutes after the prosecutor finished
his discussion with the grand jury.
Alaska Criminal Rule 6(k) provides, in pertinent part,
"No persons other than the jurors shall be present while the
grand jury is deliberating or voting." Rule 6(k) is modeled on
Federal Criminal Rule 6(d), which has been given a very strict
application by the federal courts. Soper v. State, 731 P.2d 587,
591 (Alaska App. 1987). However, Alaska has not adopted the
strict federal rule. In Alaska, an indictment will not be
dismissed for a violation of Rule 6(k) unless the defendant shows
that the violation prejudiced the fairness of the grand jury
proceedings. Soper, 731 P.2d at 591-92; Boggess v. State, 783
P.2d 1173, 1176 (Alaska App. 1989). Generally, to establish
prejudice, the defendant must show that the policies behind the
rule of grand jury secrecy have been undermined, or that the
grand jury or a witness appearing before them has been unduly
influenced by the irregularity. Soper, 731 P.2d at 591-92.
In Hurn's case, the prosecutor's interruption of the
grand jury's deliberations appears motivated by a desire, not to
compromise the secrecy of the proceedings, but rather to insure
that secrecy. The prosecutor informed the grand jurors that, if
they raised their voices, their deliberations could be overheard
by people in the lobby outside the grand jury room.
When, following this announcement, the grand jury
foreman began (unsolicited) to describe the grand jury's
deliberations, the prosecutor promptly informed the foreman that
he did not wish to know the content of the grand jury's
discussions. When, again unprompted, the grand jury foreman then
requested clarification of the law of self-defense, a proper
discussion on this topic ensued. The transcript of this
discussion does not support Hurn's assertion that the prosecutor
exerted undue influence over the grand jury.
Having examined the record, we conclude that the
superior court did not abuse its discretion when it denied Hurn's
motion to dismiss the indictment for this alleged violation of
Rule 6(k).
Hurn's Application for Post-Conviction Relief
Following his convictions for murder and assault, Hurn
filed a petition for post-conviction relief. Hurn claimed that
he had been denied his right to testify on his own behalf because
his trial attorney had directed him not to take the stand,
without telling Hurn that this decision was ultimately one that
Hurn must make personally. See LaVigne v. State, 812 P.2d 217,
222 (Alaska 1991); see also Rule 1.2(a) of the Alaska Rules of
Professional Conduct.
The record of Hurn's trial indicates that the decision
whether Hurn should take the stand was made at the very end of
the defense case, just before the defense rested. On the
afternoon of Monday, February 26, 1990, the defense presented the
testimony of an expert witness who was apparently the last
witness on the defense list. Following the completion of this
expert's testimony, the trial judge indicated that it was time
for the defense to disclose whether Hurn himself would testify.
Hurn's attorney told the court that the defense still wished to
present one other witness, Hurn's mother. Hurn's attorney
outlined the testimony that the defense expected to elicit from
Hurn's mother, and then he indicated that the defense might rest
after her testimony. Specifically, Hurn's trial attorney stated:
We will be resting after [Hurn's mother testi
fies], I believe. I will need to talk to my
client briefly, but I would anticipate that
we will rest after that. ... If Your Honor
wishes, ... we can come back [after the court
takes care of some scheduled arraignments
and] tell the court as soon as we come back
whether or not [Hurn] will testify.
The trial court took a 40-minute recess after Hurn's
mother testified. When court reconvened, Hurn's attorney told
the trial judge (in the absence of the jury) that, "[d]ue to the
weakness of the State's case, Mr. Hurn will not be testifying".
Later, after the jury had returned to the courtroom, the defense
attorney formally announced that Hurn had elected not to testify
and that the defense was resting. Hurn made no objection to any
of his attorney's statements.
Several months later, after he had filed his
application for post-conviction relief and had obtained a new
attorney, Hurn was deposed. He testified that he and his trial
attorney had several discussions about defense strategy and,
particularly, the question of whether Hurn would take the stand
at trial. Hurn stated that his trial attorney initially told him
that he would be testifying; however, about half-way through the
trial, Hurn's attorney advised him not to take the stand. Hurn
testified that he challenged his attorney's advice:
Question: [W]hen do you think [you had]
your first discussion with [your trial attor
ney] ... about whether or not you would
personally get on the witness stand?
HURN: Towards the beginning of the
trial, ... the first couple days.
Question: ... [W]hat do you remember
of [that] conversation[?]
HURN: [The subject] was just mentioned.
I don't believe that there was any conversa
tion on the subject.
Question: Well, when you say "it was
just mentioned", by whom? Who mentioned it?
HURN: I believe [my attorney] did.
Question: And what do you recall him
mentioning?
HURN: That I would probably be testify
ing.
Question: Now, when is it ... that
[your attorney] indicated to you that you
probably wouldn't be testifying?
HURN: About half-way through the trial.
Question: Do you recall whether the
State's case was done or not[?]
HURN: I believe it was.
Question: ... Did [your attorney]
explain or say anything to you about why he
might not put you on as a witness?
HURN: He said he didn't feel it was
necessary.
Question: And what did you say when he
told you he didn't feel it was necessary?
HURN: I told him I didn't see how we
were going to prove self-defense without my
testimony.
Question: Did he say anything to that?
HURN: He said that he had already
proved reasonable doubt.
Question: What did you say when [your
attorney] advised you that you shouldn't
testify?
HURN: I told him [that], the way I
understood it, ... it was imperative for a
self-defense defendant to testify in order to
prove the subjective [component] of [a] self-
defense [claim].
Question: And ... where did you get
that idea?
HURN: From talking to [the defense
investigator] and from talking to -- I was
aware of the subjective and the objective
[prongs of self-defense] from talking to [my
trial attorney] himself. And I didn't see
how you [were] going to prove the subjective
without [my] subjective testimony.
However, Hurn conceded that the issue remained undecided until
Monday, February 26, the last day of the defense case. Moreover,
Hurn conceded that he had never directly confronted his trial
attorney over the decision to withhold Hurn's testimony:
Question: At the start of that Monday,
the day Mr. Haag testified, ... did you at
that point think you were going to be a wit
ness or not?
HURN: I didn't know. [My attorney]
didn't appear to know what he was going to do
until he did it.
Question: So, on that Monday, you
thought there was still a possibility that
you would be a witness?
HURN: Yes.
...
Question: Okay. After Mr. Haag testi
fied, ... did you have any discussion with
[your attorney] about whether you should be a
witness ... ?
HURN: [Yes.] At the same recess [when]
he told my mom she was going to testify, he
told me that I probably would not.
Question: Okay, and what did you say to
him?
HURN: I told him I thought it was impor
tant, that even though the thought of testify
ing was scary, that I felt that it was neces
sary for my case that I testified, that I
still had -- there [were] still questions
unanswered.
Question: And what did he say to that?
HURN: That he had proved reasonable
doubt.
Question: ... Now, do you recall that
there was a recess before [your attorney]
came back into court and told the court that
... you would not testify? Do you recall
there being a recess?
HURN: Yes.
Question: During that recess, ... did
you discuss ... the question of whether you
would be a witness?
HURN: Yes. That's when he told me for
sure that I would not be testifying.
Question: And what did you say when he
told you for sure you would not be
testifying?
HURN: I told him I still thought it was
important.
Question: And what did he say?
HURN: He said that he had proved reason
able doubt.
Question: What did you say [then?]
HURN: I didn't argue it any farther.
We had already covered this ground.
Question: Did you feel at that point
[that] he was advising [you] that it was in
your best interests not to testify?
HURN: I felt that he had just told me
not to testify, that I wasn't going to testi
fy. I don't recall it being in the form of
advice.
Question: Did you think at that time
that he was your attorney and knew best?
HURN: (Laughs) I never thought [my
attorney] knew best. I thought that he was
all I had, since I couldn't get rid of him
when I didn't feel he was doing an adequate
job. When he said that I couldn't -- [that]
I wasn't going to testify, I thought that was
all there was to it.
Question: Did you tell him that you
wanted to testify at that time?
HURN: I told him I thought it was neces
sary.
Question: All right, and then he told
you that he thought he'd already proved self-
defense. Did you tell him then that you
wanted to testify at that time?
HURN: No, I didn't put it in those
words. I thought I'd already made myself
clear.
Question: You thought it was important
that you testify, you've said that before.
Did you tell him at that time that you wanted
to testify?
HURN: No.
Question: When [your trial attorney]
went back into court with you and told the
court that you wouldn't testify -- do you
remember what he told the court?
HURN: No.
Question: Do you remember him telling
the court that, because the State's case was
so weak, you wouldn't be a witness?
HURN: That sounds about right. ...
...
Question: Did you ever have any discus
sions with [your attorney] about wanting to
reopen the defense case and be a witness
yourself?
HURN: No. I didn't know you could
reopen a case that had been rested. I also
didn't know that it was my decision. I was
going on the assumption that when [my
attorney] said I wasn't going to testify,
that that's all there was to it.
At the subsequent hearing on Hurn's petition for post-
conviction relief, Hurn reiterated that he had wished to testify
but that his trial attorney had told him not to. Hurn also
stated that no one had ever told him he could ultimately make the
decision whether to take the stand, regardless of the wishes of
his attorney.
Hurn's trial attorney's version of events and his
conversations with Hurn differed significantly from Hurn's
testimony. At a pre-hearing deposition, the attorney testified
that, even before trial began, he and Hurn had conversations
concerning whether Hurn would testify. According to Hurn's trial
attorney, no firm decision was reached at these early
discussions, but he and Hurn anticipated that Hurn would, in
fact, testify. The attorney and Hurn reviewed this decision
approximately every other day during the two-week trial.3
Hurn's attorney testified that Hurn preferred not to
take the stand if he could avoid it:
[TRIAL ATTORNEY]: Mr. Hurn said that he
did not want to testify because it made him
nervous, but he was willing to testify.
Question: Do you recall him saying ...
anything other than that ... on the subject
of [his] being a possible witness?
[TRIAL ATTORNEY]: I don't think so. I
think that [this position] was his -- what he
expressed to me throughout the trial.
Question: ... That he did not want to
testify because it made him nervous, but he
was willing to testify if you so advised him?
[TRIAL ATTORNEY]: Right. Again, those
aren't exact words, but that's -- The other
thing I should clarify [is that] it's not
fair to just say [that] he didn't want to
testify because he was nervous. I mean,
that's making it [overly] simple; there's a
lot more to it than that. But the bottom
line is, he was willing to testify if I
advised him it was necessary, or I thought it
was necessary. I think that's more accurate.
But he also was not gung-ho; [he was not
saying,] "Let me up on the stand and, by
golly, I'm going to tell these folks a thing
or two."
By Friday afternoon, February 23, near the end of the
defense case, Hurn's trial attorney was "strongly leaning" toward
the position that Hurn should not testify:
[TRIAL ATTORNEY]: I thought the State's
case had some problems. I thought that [the]
cross-examination of the State's [three main]
witnesses ... had showed that they were not
being truthful. I had confidence ... that
the jury would ... look at all the evidence.
And I thought that it would be possible for
Mr. Hurn to hurt his case more than help it
if he testified.
Question: Did you convey any of those
thoughts to Mr. Hurn that afternoon?
[TRIAL ATTORNEY]: I believe I did. I
believe that those are the matters we
discussed Friday afternoon.
Hurn's attorney testified that he reached his final conclusion
about whether Hurn should testify during the recess that was
called following the testimony of the expert witness on Monday,
February 26:
[TRIAL ATTORNEY]: I believe that I
didn't make up my mind until -- I thought we
took a break before coming back and
announcing that we rested, and I believe it
was during that break.
Question: And did you, during that
break, discuss the issue with Mr. Hurn?
[TRIAL ATTORNEY]: I believe I did. ...
I told Mr. Hurn that I didn't think it was
necessary for him to testify, and that I
didn't think he should testify. Now, I can't
say [that] those [were] my exact words, but
that was ... the message I conveyed.
Question: ... [W]hat, if any, response
[did Mr. Hurn make] to those admonitions ...
?
[TRIAL ATTORNEY]: I don't recall his
response. ... The only thing I can recall, I
believe that he simply accepted my advice.
... I don't recall any protest. But I don't
recall any [statement like] "Gee, that's
great," ... either.
Hurn's attorney testified that he knew that, under the
division of authority between attorney and client, a defendant
has the final say on whether to testify at trial. However,
Hurn's attorney admitted that he never explicitly told Hurn that
Hurn had the final say on this matter:
Question: Do you recall having a specif
ic conversation with Mr. Hurn in which ...
you explained to him that he had a right to
testify as a witness in his own behalf, but
that he could not be forced to testify?
[TRIAL ATTORNEY]: No, ... I don't
recall a conversation where I set it out like
that.
Question: Do you ... recall [ever]
informing Mr. Hurn that there were specific
... [strategic decisions] that you would be
responsible for making ... as far as how the
case was presented: what witnesses to call,
whether to pre-empt a judge, in what order to
present witnesses, what exhibits to offer,
things like that?
[TRIAL ATTORNEY]: I don't recall any
[such] conversation. I'm not saying it
happened or it didn't happen. I [just] don't
recall any conversation where I sat down with
Mr. Hurn and said, "Here's how we divide up
what we do."
Question: Do you understand that there
is, indeed, a division between those items
which are yours [to decide] ... and those
which the defendant is responsible for [decid
ing]?
[TRIAL ATTORNEY]: Yes.
Question: Which ones are those, in your
opinion?
[TRIAL ATTORNEY]: Well, I think the
defendant has the absolute right to [make
the] call on bumping the judge ... , waiver
of Rule 45, testifying -- whether the
defendant testifies or not; and I think I
would leave to the client whether we had a
jury or not. Those are the ones that ...
come to mind.
Question: Now, do you recall ever
informing [Mr. Hurn] that, if he wished to
testify and you advised against it, he would
be allowed to testify regardless?
[TRIAL ATTORNEY]: I don't recall having
a conversation like that, where I spelled it
out.
Hurn's attorney conceded this same point at the later evidentiary
hearing:
Question: Do you recall Mr. Hurn making
any statement, any specific statement [that]
he agreed with your opinion with regard to
whether he should testify?
[TRIAL ATTORNEY]: No, I don't.
Question: Do you specifically recall
advising him that, regardless of your
opinion, the decision to testify as a witness
was his and his alone?
[TRIAL ATTORNEY]: No. ... I don't
recall, specifically, the conversation that
Mr. Hurn and I had about his right to testify
and whose decision that was. [However, as]
of the minute before and [at the time] of
announcing that we rested, [that] the defense
was resting, I did think that Mr. Hurn agreed
with my advice that he not testify.
Upon this evidence, Superior Court Judge Charles K.
Cranston denied Hurn's application for post-conviction relief.
Judge Cranston ruled that, even though Hurn's trial attorney may
not have explicitly told Hurn that he could make the final
decision concerning whether to testify, this omission had not
affected Hurn's decision -- because Hurn had, in fact, concurred
with his trial attorney that he should not take the stand:
After the recess, the Court was told[,]
in Mr. Hurn's presence, that the testimony of
the defendant would not be presented. Half
an hour later, this decision was repeated to
the jury. The Court finds that the defendant
had adequate opportunity during this time to
notify his attorney, if not the Court, of any
disagreement he may have had with the
decision. There is no evidence that he did
so.
[Weighing] the defendant's evidence ...
of the absence of a knowing waiver ... [,]
balanced against [the trial attorney's]
statement that he thought that he had
complied with the ABA requirement, and Mr.
Hurn's [failure to avail himself of the]
opportunity to express his desire to testify
after [his attorney's] statement to the
contrary before the Court, the preponderance
of the evidence does not show that the
defendant's failure to testify was the result
of his attorney's decision, and not his own.
We agree with Judge Cranston that, even though Hurn's
trial attorney never informed Hurn that the decision whether to
testify was ultimately Hurn's to make, the attorney's omission
makes no difference if Hurn agreed with his attorney's assessment
that he should not testify. As can be seen from the quoted
portions of Hurn's post-conviction relief testimony, Hurn asserts
that he strongly disagreed with his attorney's advice. Hurn
testified that he felt it was important for him to take the
stand, that he informed his attorney of this, and that he would
have pursued the matter further if he had known that the decision
rested with him. However, Hurn's attorney testified that Hurn
was hesitant to take the stand, even during the early stages of
the trial when the defense attorney was in favor of Hurn's
testifying. Moreover, Hurn's attorney testified that, during the
last day of the defense case, when the final decision was made,
Hurn did not express opposition to or disagreement with the
attorney's conclusion that Hurn should not take the stand.
Judge Cranston resolved this factual conflict against
Hurn. He found that Hurn had not expressed opposition to his
attorney's decision, and he inferred from this that Hurn had, in
fact, agreed with his attorney at the time. We must affirm Judge
Cranston's findings of fact unless we are convinced that they are
clearly erroneous. Anthony v. State, 521 P.2d 486, 492 (Alaska
1974); Long v. State, 772 P.2d 1099, 1101-02 (Alaska App. 1989).
Having examined the record, we can not say that Judge
Cranston's findings are clearly erroneous. We therefore affirm
Judge Cranston's finding that Hurn concurred in his attorney's
assessment that Hurn should not take the stand at his trial.
This being so, it does not matter that Hurn was never explicitly
told that he had the right to disregard or overrule his
attorney's advice.
In an alternative argument, Hurn asks us to declare
that the rule announced by the Alaska Supreme Court in LaVigne v.
State, 812 P.2d 217 (Alaska 1991), should be applied
retroactively. In LaVigne, the supreme court declared that
whenever a criminal defendant does not take the stand at trial,
the trial judge is under a duty to inquire, before the defense
case closes, whether the defendant knows that the decision to
testify or not rests with him or her, and to ascertain that the
defendant has personally chosen not to testify. LaVigne, 812
P.2d at 222. Hurn asks us to rule that this present-day require
ment applies to all cases tried before the LaVigne rule was
promulgated, thus effectively requiring reversal of the
conviction of any defendant whose trial judge failed to make the
now-required inquiry.
We decline to apply LaVigne retroactively. The
criteria informing our decision were listed by the supreme court
in Judd v. State, 482 P.2d 273, 277-78 (Alaska 1971), and
reiterated in its opinion on rehearing in State v. Glass, 596
P.2d 10 (Alaska 1979):
The constitution does not require that
... new rules of law be given retroactive
effect, Linkletter v. Walker, 381 U.S. 618,
629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601, 608
(1965); Judd v. State, 482 P.2d at 276, and a
court must make an independent decision in
each case. ... [T]he criteria guiding resolu
tion of the question of retroactivity [are]:
(a) the purpose to be served by the new
standards; (b) the extent of the
reliance by law enforcement authorities
on the old standards; and (c) the effect
on the administration of justice of a
retroactive application of the new
standards.
Glass, 596 P.2d at 13.
The rule announced in LaVigne was a new rule of prac
tice, designed to forestall post-trial litigation by requiring
the trial judge to make an on-record memorial of a decision that
is normally made in private discussions between attorney and
client. A failure to comply with the LaVigne rule is harmful,
not because that failure by itself proves that a defendant's
constitutional right was abridged, but because the failure makes
it harder to determine the facts underlying the defendant's claim
of constitutional violation. As the Supreme Court of Colorado
stated in People v. Curtis, 681 P.2d 504 (Colo. 1984), when it
rejected retroactive application of its own on-the-record inquiry
rule:
While a primary purpose of placing the ...
waiver on the record is to improve the accura
cy of verdicts, a silent record in a trial
[held] before our decision today does not in
and of itself raise serious doubts about the
accuracy of the guilty verdict. ... [W]e be
lieve it likely that retroactive application
would be a significant burden on the adminis
tration of justice.
People v. Curtis, 681 P.2d at 517.
The LaVigne rule has not been the favored rule in this
country. As this court noted in its opinion, LaVigne v. State,
788 P.2d 52, 54 (Alaska App. 1990), "Generally, courts seem
reluctant to require the trial judge to determine on the record
whether the defendant understands his right to testify and ...
has ... knowingly and intelligently waived [that right]." Our
supreme court departed from traditional jurisprudence on this
issue when it joined the ranks of states requiring an on-the-
record inquiry. Judges and attorneys can not be faulted for
failing to foresee the supreme court's decision, or for failing
to foresee the need to make a particularized inquiry into a
defendant's decision to refrain from testifying.
The wording of LaVigne itself indicates that the
supreme court intended its newly-announced rule to be applied
prospectively only. The court stated that its rule was designed
"[t]o avoid future cases like LaVigne's". LaVigne, 812 P.2d at
222 (emphasis added). Moreover, there have been thousands of
criminal prosecutions in this state in which the defendant's
decision not to take the stand was not memorialized in this way.
Retroactive application of the LaVigne rule could entail re-
opening and potential reversal of a significant number of these
prosecutions.
For these reasons, we decline to apply LaVigne retroac
tively. The superior court did not commit procedural error when
it failed to address Hurn personally, on the record, to establish
that Hurn was knowingly waiving his right to testify. And,
because we have previously upheld the superior court's factual
determination that Hurn, in fact, concurred in the decision that
he should not take the stand at his trial, we therefore affirm
the superior court's denial of Hurn's petition for post-
conviction relief.
Hurn's final argument on appeal is that he received an
excessive sentence. Hurn was convicted of second-degree murder,
an unclassified felony with a penalty range of 5 to 99 years.
AS 11.41.110(b) and AS 12.55.125(b). He was additionally
convicted of first-degree assault, a class A felony with a
penalty range of 0 to 20 years, and with a presumptive term of 5
years' imprisonment for a first felony offender. AS 11.41.200(b)
and AS 12.55.125(c)(1). See Pruett v. State, 742 P.2d 257, 262-63
(Alaska App. 1987). Judge Cranston sentenced Hurn to 40 years'
imprisonment with 10 years suspended (30 years to serve) for
second-degree murder, and to a consecutive 5-year term for first-
degree assault.
Hurn challenges the sentence he received for second-
degree murder, asserting that it violates the benchmark
sentencing range this court established in Page v. State, 657
P.2d 850, 855 (Alaska App. 1983). Page established a benchmark
sentencing range of 20 to 30 years' imprisonment for second-
degree murder. However, when assessing a second-degree murder
sentence under Page, this court's emphasis is on a defendant's
time to serve. Jimmy v. State, 689 P.2d 504, 505 (Alaska App.
1984). Hurn received 30 years to serve, a sentence at the upper
end of the Page benchmark range. Thus, Hurn's sentence does not
violate Page.
Moreover, Judge Cranston found that Hurn's offense was
an aggravated one. He rejected Hurn's self-defense claim,
declaring that the facts of the case "clearly expressed" Hurn's
"disregard for Mr. Steger's life"; he also found that Hurn's
offense was made more serious by the fact that Hurn's actions
endangered people other than the two victims named in the
indictment.
Hurn relies on several sentencing decisions in which
lesser sentences were affirmed for second-degree murder.
However, as this court noted in Arenas v. State, 727 P.2d 313,
314 & n.1 (Alaska App. 1986), our affirmance of a sentence on
appeal means only that we conclude the sentence is not excessive;
it does not set a ceiling on sentences in similar cases, nor does
it necessarily mean that we would not have affirmed a greater
sentence in the appeal being litigated.
Arenas is also relevant to Hurn's sentence appeal
because of its facts. The defendant in Arenas had become
embroiled in a fist-fight with another man, then had pulled a gun
and shot him. The jury rejected Arenas's claim of self-defense
and convicted him of second-degree murder. This court upheld
Arenas's 25-year murder sentence. Arenas, 727 P.2d at 315.
Having examined the record in Hurn's case, we conclude
that 30 years to serve for Hurn's act of second-degree murder is
not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14
(Alaska 1974). We therefore uphold Hurn's sentence.
The judgement of the superior court is AFFIRMED.
_______________________________
* Sitting by assignment of the chief justice made pursuant
to Article IV, Section 16 of the Alaska Constitution.
1 Hurn's offer of proof with respect to the officers'
expected statements took the form of an affidavit from his
attorney. Neither Officer Fritz nor Trooper Roop gave testimony
or submitted an affidavit.
2 This statement and the ensuing conversation between the
prosecutor and the grand jury foreman all occurred on record.
3 The trial began on Monday, February 12, 1990. Opening
statements were given on Friday, February 16. The final defense
witness (Haag) testified on Monday, February 26.
