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THE COURT OF APPEALS OF THE STATE OF ALASKA
SAMUEL J. TUCKER, JR., )
) Court of Appeals No. A-5106
Appellant, ) Trial Court No. 2NO-S90-266CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1404 - April 7, 1995]
Appellee. )
______________________________)
Appeal from the Superior Court, Second
Judicial District, Nome, Charles R. Tunley,
Judge.
Appearances: Amrit Kaur Khalsa,
Anchorage, for Appellant. W. H. Hawley,
Assistant Attorney General, Office of Special
Prosecu-tions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats,
Judge, and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Samuel J. Tucker, Jr., was convicted by a jury of
murder in the first degree, AS 11.41.100(a)(1), and murder in the
second degree, AS 11.41.110(a)(1). This court affirmed his
convictions. Tucker v. State, 721 P.2d 639, 645 (Alaska App.
1986).1 Tucker later filed an application for post-conviction
relief, in which he alleged ineffective assistance of counsel on
the part of his trial and appellate attorneys. Superior Court
Judge Charles R. Tunley conducted an evidentiary hearing on
Tucker's application and issued a written decision denying
relief. Tucker appeals, arguing that the superior court erred in
its denial of post-conviction relief.
Having reviewed the record, we find no merit to
Tucker's claims on appeal. In our view, the thorough decision
issued by the superior court fully addresses and correctly
resolves Tucker's contentions.
A trial court's denial of post-conviction relief is
reviewed by this court to determine whether an abuse of
discretion occurred. Brown v. State, 803 P.2d 887, 888 (Alaska
App. 1990). We must accept the trial court's findings of fact
unless they are clearly erroneous; we review the trial court's
conclusions of law de novo. Jackson v. State, 750 P.2d 821, 825
(Alaska App. 1988); Arnold v. State, 685 P.2d 1261, 1265-66
(Alaska App. 1984).
In reviewing the trial court's denial of Tucker's
ineffective assistance of counsel claims, we apply the now
familiar principles of Risher v. State, 523 P.2d 421 (Alaska
1974). Risher creates a two-prong standard for evaluating
ineffective assistance of counsel claims. Under the first prong,
the defendant must establish that trial counsel failed to
"perform at least as well as a lawyer with ordinary training and
skill in the criminal law[.]" Id. at 424 (quoting Beasley v.
United States, 491 F.2d 687, 696 (6th Cir. 1974)); see also
Strickland v. Washington, 466 U.S. 668, 687 (1984). The standard
for ineffective assistance is minimal competence; to establish
ineffective assistance, the defendant must show "a level of
performance that no reasonably competent attorney would provide."
State v. Jones, 759 P.2d 558, 568 (Alaska App. 1988)(citation
omitted). Under the second prong, the defendant must create a
reasonable doubt as to whether counsel's lack of competency
contributed to the conviction. Risher, 523 P.2d at 425; see also
Strickland, 466 U.S. at 694.
Tucker first maintains that his trial counsel was
ineffective in failing to move for suppression of the clothing
that was taken from him without a warrant. However, the record
supports Judge Tunley's finding that Tucker's counsel made a
reasoned and reasonable decision to forgo a motion to suppress
the clothing, since counsel thought that introduction of the
clothing would not be damaging to his case. This decision was
not incompetent. Moreover, Tucker has failed to establish that
the warrantless seizure of the clothing was unlawful, and Tucker
has similarly failed to create a reasonable doubt as to whether
suppression of the clothing would have altered the jury's
decision. Thus, Judge Tunley also properly determined that
Tucker failed to show prejudice under the Risher standard.
Tucker next claims that his trial counsel was
ineffective in failing to seek exclusion of the testimony of
Gerald Nashalook's testimony by characterizing Nashalook's
testimony as being based on "dream-refreshed" memory. Tucker
argues that his trial counsel should have called an expert
witness to testify that dream-refreshed memory is unreliable and
therefore inadmissible under the Frye2 standard.
The record, however, establishes that trial counsel
took a slightly different approach to attacking Nashalook's
testimony. Trial counsel's theory was that Nashalook had no
actual memory of the events he described, but had merely adopted
the substance of his dream as his memory. Trial counsel
diligently and effectively pursued this theory, first in seeking
to exclude Nashalook's testimony on the ground that Nashalook had
no actual knowledge of the events addressed in his testimony, and
subsequently in arguing Tucker's case to the jury. As explained
by trial counsel in an affidavit submitted to the superior court
during the post-conviction relief proceedings:
I spent a substantial amount of effort
trying to limit or discredit the testimony of
Gerald Nashalook. In my view the issue was
one of Gerald having some kind of dream,
whether accurate or not, that filled in some
gaps in his own memory. He adopted that dream
as his recollection. I thus viewed it as a
situation where he was not testifying from
his personal knowledge of the events, but
only from his knowledge of the dream. I
brought a motion to exclude his testimony
related to the dream and that issue was also
raised on appeal.
Because the approach relied on by trial counsel was fact-based
rather than science-based, counsel had no occasion to consider
calling an expert witness.
In applying for post-conviction relief, Tucker proposed
his newly conceived dream-refreshed memory approach as a better
approach than the one trial counsel relied on; Tucker faulted his
trial counsel for not conceiving of and pursuing the dream-
refreshed memory approach. To support this claim, Tucker
presented an expert witness who testified that there is no
substantial scientific evidence establishing the reliability of
dream-refreshed memory.
For present purposes -- although we believe that the
record leaves room for considerable doubt on the issue -- we
assume that a Frye-based dream-refreshed memory approach would
have been a more effective way of challenging Nashalook's
testimony and that it might have resulted in the testimony's
exclusion. We also assume that Nashalook's testimony itself was
significant.3 Even so, the record fails to support a finding of
incompetent representation.
To prevail on his claim of ineffective assistance of
counsel, Tucker was required to do more than arrive at the post-
conviction relief hearing with a better idea than the one his
trial counsel originally thought of. Tucker was obligated to
prove, not that his trial counsel could have done things better,
but that no competent attorney would have done things as badly as
his trial counsel did. As this court has noted, the
constitutional guarantee of effective assistance of counsel does
not assure "error-free representation." Jones, 759 P.2d at 569.
Even if trial counsel's actions in retrospect seem to be
"mistaken or unproductive[,]" they are "virtually immune from
subsequent challenge" if they were minimally competent. Id.
(citations omitted).
Here, Tucker offers no basis whatsoever for concluding
that all competent attorneys would have conceived of the dream-
refreshed memory theory Tucker currently proposes,4 and he
similarly offers no basis for concluding that all competent
attorneys, having conceived of this approach, would necessarily
have selected it as preferable to the approach taken by trial
counsel.5 Neither conclusion is self-evident.
The trial record and trial counsel's subsequent
explanation of his actions leave us with a firm impression that
trial counsel adopted a sensible approach to attacking
Nashalook's testimony and pursued that approach in a manner that
was diligent, highly skilled, and quite possibly effective.6
Trial counsel's performance appears to epitomize competent, not
incompetent, representation. In the face of seemingly competent
representation, Tucker's after-the-fact offer of a better idea is
of no constitutional significance.
Tucker lastly claims that he suffered from ineffective
representation because his counsel on appeal did not seek
appellate review of a superior court order denying Tucker's
motion to suppress the fruits of a search conducted pursuant to a
warrant that, according to Tucker, had not been issued by a
neutral and detached magistrate.
This court has never had occasion to pass on a claim of
ineffective assistance of counsel involving appellate
representation. The parties in this case assume the Risher
standard to be applicable; this is the standard Judge Tunley
applied below. Federal cases apply the same standard for gauging
ineffective assistance of counsel at both the trial and appellate
levels. See, e.g., United States v. Birtle, 792 F.2d 846, 847
(9th Cir. 1986). We conclude that the Risher standard applies to
Tucker's claim of appellate incompetence.
In denying Tucker's application for post-conviction
relief, Judge Tunley found that the two attorneys who framed
Tucker's appeal had sound tactical reasons for failing to raise
the disputed suppression issue; the judge alternatively concluded
that Tucker would not have prevailed had the issue been raised on
appeal. We agree with Judge Tunley's conclusion that Tucker's
suppression motion lacked legal merit. Tucker has failed to
establish that he would have prevailed on the merits had he
appealed. He has thus failed to show prejudice.
The record also fully supports Judge Tunley's
alternative finding that appellate counsel's failure to pursue
the suppression issue reflected a sound tactical choice: counsel
deemed other appellate issues more meritorious and did not want
to "clutter up the record" with an additional issue. Such
strategic choices fall squarely within the sphere of competent
representation.7 Tucker has thus failed to meet his burden of
rebutting the presumption of competence of appellate counsel.
The superior court's order denying post-conviction
relief is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Our opinion summarized the facts of Tucker's case as
follows:
Two officers from the Nome Police
Department, dispatched to the Tucker
residence in the early morning of February
10, 1984, found the bodies of Samuel Tucker,
Sr., and Joyce Tucker, the defendant's father
and mother. They had been dead for several
hours. Samuel, Sr., had been stabbed once in
the chest up to the hilt of the knife, and
Joyce had been stabbed 22 times on the face,
neck, and chest. There were also cuts on
Joyce's hands, which were apparently
inflicted when she attempted to ward off her
assailant.
Samuel Tucker, Jr., (hereinafter
Tucker) was implicated in the murders. A
bitemark found on Joyce's left forearm
matched impressions of Tucker's teeth, and a
strand of Tucker's hair was found clutched in
Joyce's left hand. A shirt Tucker wore
earlier in the evening was found stained with
Joyce's blood. An imprint of fabric on the
shirt was consistent with the fabric of
Joyce's sweater. Blood-stained pants were
seized from Tucker. The blood on the pants
was a mixture of Samuel, Sr.'s, and Joyce's
blood. Tucker's underwear was also found to
have Samuel, Sr.'s, blood on it.
Tucker had been drinking from 3:00
p.m. on February 9 to 1:00 a.m. on February
10. He was with his friend, Gerald
Nashalook, until 9:00 p.m. At that time,
Nashalook's mother asked Tucker to leave the
Nashalook house because he had gotten into a
fist fight with Nashalook. Tucker was seen
at various bars in Nome from 10:15 until 1:00
a.m., when he returned home and reported the
murders to the police.
At trial, Nashalook testified that,
later that night, Nashalook and Tucker met at
a bar, and Tucker said something about
Tucker's parents. Nashalook could not
remember what Tucker said, but he did recall
that he could not believe it. Nashalook also
testified that he and Tucker decided to go to
the Tucker residence. Once there, they
kicked down the door to enter. At trial,
Nashalook could not remember what he had seen
there, but he recalled that he realized that
what Tucker had told him earlier was true.
Nashalook also remembered throwing a bottle
against the shower stall and suggesting that
they leave and worry about it later. He
testified that they subsequently left and
parted company.
Tucker, 721 P.2d at 641.
2. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
3. In our earlier opinion affirming Tucker's conviction,
we characterized Nashalook's testimony as being "merely
cumulative of other evidence presented." Tucker, 721 P.2d at
643. On appeal, Tucker argues strongly that our opinion greatly
underestimated the potential value of Nashalook's testimony to
the state's case at trial. Although the superior court, in
assessing Tucker's post-conviction relief application, considered
itself bound by our determination that Nashalook's testimony was
cumulative, for purposes of deciding this appeal we assume that
the testimony deserves the significance Tucker attributes to it.
4. Cf. State v. Sammons, 749 P.2d 1372, 1377 (Ariz.
1988)(decision to call an expert witness is a matter of trial
strategy and will not be found ineffective unless counsel's
decision has no reasonable basis); State v. Hernandez, 846 P.2d
312, 323-24 (N.M. 1993)(trial counsel was not ineffective in fail-
ing to call experts where counsel was able to discredit the
testimony without an expert and defendant was unable to show that
calling an expert would have led to a different outcome).
5. Cf. Rodriquez v. State, 741 P.2d 1200, 1209 (Alaska
App. 1987)(trial counsel not ineffective in failing to interview
state's expert prior to testimony and in failing to call a
rebuttal expert where there was no indication another expert
could have helped combat testimony).
6. The fact that trial counsel did not succeed in keeping
Nashalook off the stand is not determinative of the
successfulness of his approach; trial counsel forcefully argued
to the jury that Nashalook had no actual recollection of events
and was not a credible witness. Given the evidence at trial, the
jury could well have convicted Tucker despite having rejected
Nashalook's testimony. Thus, the jury's verdict convicting
Tucker does not establish that counsel's attack on Nashalook was
unsuccessful.
7. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983)
(decision to winnow out weaker arguments on appeal is part of
effective appellate advocacy; appellate counsel is not required
to raise every colorable claim); Briones v. State, 848 P.2d 966,
978 (Haw. 1993) (counsel's informed decision on which issues to
raise on appeal will not ordinarily be second-guessed;
representation not required to be errorless); Williamson v.
State, 852 P.2d 167, 169 (Okla. Crim. 1993) ("It is the role of
appellate counsel to carefully select and develop the legal
issues to be presented to the court and not raise every non-
frivolous issue conceivable.").
Tucker points out that, because the suppression issue
was not raised on direct appeal, he will now be deprived of the
oppor-tunity to raise it as a habeas claim in federal court. See
Stone v. Powell, 428 U.S. 465, 494 n.37 (1976). Implicit in this
argu-ment is Tucker's assumption that the need to preserve an
issue for federal habeas review would automatically preclude any
competent appellate attorney from leaving a colorable fourth
amendment stone unturned. This curious assumption, however,
would make sense only if collateral federal litigation were
viewed as the ultimate objec-tive of direct appellate review in a
state tribunal. Although the desirability of preserving an issue
for potential federal review is certainly a factor to be
considered by counsel faced with a choice of issues to include on
appeal in a given case, this factor can hardly be deemed
decisive.
