Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are requested to bring
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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-5942
Appellant, ) Trial Court No. 3AN-S92-6343CI
)
v. )
) O P I N I O N
MICHAEL P. SIMPSON, )
)
Appellee. )
______________________________)
MICHAEL P. SIMPSON, )
) Court of Appeals No. A-5952
Appellant, ) Trial Court No. 3AN-S87-3870CR
)
v. )
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1551 - October 10, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Joan M. Woodward, Judge.
Appearances: W. H. Hawley, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellant in A-5942
and Appellee in A-5952. Cynthia L. Strout, Law Office of Cynthia
L. Strout, Anchorage, for Appellee in A-5942 and Appellant in A-
5952.
Before: Coats, Chief Judge, Rabinowitz,
Senior Supreme Court Justice, and Joannides, District Court Judge.
[Mannheimer, Judge, not participating.]
COATS, Chief Judge.
A jury convicted Michael P. Simpson of one count of
sexual abuse of a minor in the first degree, three counts of sexual
abuse of a minor in the second degree, and three counts of
contributing to the delinquency of a minor. AS 11.41.434(a)(2); AS
11.41.436(a)(3); AS 11.51.130(a)(1); AS 04.16.050. Superior Court
Judge Karl S. Johnstone sentenced Simpson to a composite sentence
of ten years' imprisonment with two years suspended. This court
affirmed the convictions in Simpson v. State, 796 P.2d 840 (Alaska
App. 1990). Simpson then filed an application for post-conviction
relief, alleging that his due process rights under the Alaska
Constitution were violated, that newly discovered evidence
warranted vacation of his conviction, and that his conviction
should be set aside because he received ineffective assistance of
counsel at trial. Superior Court Judge Joan M. Woodward denied
relief based on the due process and newly discovered evidence
claims, but granted a new trial based on the ineffective assistance
of counsel claim. Simpson appeals Judge Woodward's decisions on
the issues in which she denied post-conviction relief. The state
appeals on the issue in which she granted post-conviction relief.
The charges against Simpson arose from accusations of
several juvenile males who Simpson met either through his work at
Alaska Children's Services Emergency Shelter or as a foster parent.
Simpson was convicted of sexual assault in the first degree based
upon allegations that he had performed fellatio on V.Q. He was
convicted of sexual abuse of a minor in the second degree based
upon allegations that he had sexual contact with V.Q., J.N., and
M.S. He was convicted of contributing to the delinquency of a
minor based upon allegations that he had furnished liquor to V.Q.,
J.N. and R.S. [Fn. 1]
An investigator with the Anchorage Police Department
investigated the allegations against Simpson and sat at the
prosecuting attorney's table as the chief investigating officer
during Simpson's trial. Following Simpson's conviction, Simpson
learned the investigator was under investigation himself for
misconduct with juvenile males, including some of the juveniles who
testified against Simpson. The state prosecuted the investigator
for official misconduct; he was acquitted following a jury trial.
J.N., one of Simpson's alleged victims, was also an
alleged victim in the investigator's prosecution. According to
Judge Woodward's findings entered at the conclusion of the post-
conviction relief hearing, the investigator "also engaged in sexual
contact with victim M.S. prior to the time that M.S. made his
allegations against [Simpson]. It is unclear whether [the
investigator] was abusing M.S. [at the time of Simpson's] trial."
In his post-conviction relief application, Simpson argued that the
facts surrounding the investigation of the charges against him
showed that the investigation was so deficient that it violated his
right to due process of law. He also contended that the
information which he received about the investigation entitled him
to a new trial based upon newly discovered evidence. Judge
Woodward rejected these claims. Although she stated that the
investigator's conduct was "abhorrent," she found that the juvenile
witnesses who testified against Simpson continued to reaffirm their
trial testimony against Simpson. She found that there was no
evidence to support Simpson's theory that the investigator had
influenced the juvenile witnesses to testify falsely against
Simpson. She also concluded that although "better police practices
could have been employed" in the Simpson investigation, the
deficiencies in the investigation did not rise to the level of due
process violations.
In his application for post-conviction relief Simpson
also contended that his trial counsel's representation constituted
ineffective assistance of counsel. Judge Woodward rejected several
of Simpson's contentions but concluded that Simpson's counsel's
representation had been ineffective in that he failed to move for
a severance of the charges against Simpson and had failed to
utilize information which was available from the alleged victims'
juvenile and medical records and correspondence which would have
cast doubts about their credibility with the jury.
The state appeals from Judge Woodward's findings and
conclusion that Simpson was afforded ineffective assistance of
counsel. The standard for reviewing claims of ineffective
assistance of counsel is set forth in Risher v. State, 523 P.2d 421
(Alaska 1974). In Tucker v. State, 892 P.2d 832, 834 (Alaska App.
1995), we discussed the Risher standard as follows:
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[.]" [Risher v. State, 523 P.2d 421
(Alaska 1974)] 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, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (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, 104 S.Ct. at 2068.
Whether an attorney's performance constitutes ineffective
assistance of counsel is a mixed question of fact and law. State
v. Laraby, 842 P.2d 1275, 1280 (Alaska App. 1992).
Before trial, Simpson's trial attorney was given access
to in camera documents which potentially could have been used to
impeach the credibility of the victims who testified against
Simpson. Judge Woodward summarized these materials as follows:
The useful documentary evidence included, but
was not limited to, psychological evaluations of victim M.S. which
referred to him as being brain-damaged, possibly having an
antisocial personality disorder and/or Tourette's Syndrome, and
being a chronic liar and manipulator; notations of prescriptions
for antipsychotic medication that M.S. was taking at the time of
trial; records revealing M.S.'s prior claims of physical abuse
which had been investigated but never substantiated; documentation
of V.Q.'s history of lying; a letter from V.Q.'s grandmother
describing his fabrication of stories to leave placements other
than Simpson's home; records regarding V.Q.'s psychiatric state;
and documentation referencing J.N.'s history as a sexual abuse
victim and perpetrator and his credibility problems.
She also noted that Simpson's attorney failed to contact M.S.'s
parents about testifying after Simpson informed him that the
parents had significant information regarding M.S.'s mental status,
truthfulness, and alleged sexual contacts with the chief investi-
gating officer. Judge Woodward concluded that "[t]here is no
question that much of the above evidence would have been admissible
in one form or another. (Records custodians, prescribing doctors,
and/or an expert psychologist or psychiatrist, etc. might have been
required to lay appropriate foundation.)" She also concluded that
Simpson's trial attorney did not make a tactical decision to not
use this information, but "completely failed to perceive the worth
of a veritable gold mine of information. No reasonably competent
attorney would have overlooked the value of this evidence. Counsel
did not strategize. He committed error." Judge Woodward concluded
that counsel's failure to utilize the extensive information which
potentially cast doubt on the credibility of Simpson's alleged
victims raised a reasonable doubt concerning whether a jury would
have convicted Simpson.
We believe that Judge Woodward's findings and conclusion
that Simpson received ineffective assistance of counsel are
supported by the record. Cf. Arnold v. State, 685 P.2d 1261
(Alaska App. 1984) (attorney rendered ineffective assistance of
counsel when he advised defendant regarding changing his plea,
without adequately informing himself regarding relevant facts and
law, and defendant relied upon attorney's advice). James McComas,
an experienced criminal defense attorney, testified at the post-
conviction relief hearing that there was a wealth of information
that was extremely useful to attack the credibility of the
witnesses against Simpson. He testified that much of the
information was admissible and that the failure to utilize these
materials constituted ineffective assistance of counsel. He gave
specific examples of how these materials should have been used. He
concluded that the failure to make effective use of these materials
could have influenced the outcome of Simpson's case. He pointed
out that this case was a credibility contest where impeachment of
the juvenile witnesses was critical. Judge Woodward could properly
have relied on this testimony, as well as her own evaluation of the
materials and their admissibility, to conclude that Simpson's trial
counsel was ineffective in failing to use the materials in question
and that this failure contributed to Simpson's conviction. [Fn. 2]
The convictions are REVERSED.
FOOTNOTES
Footnote 1:
The jury acquitted Simpson of three counts of sexual abuse of
a minor. The three counts of which Simpson was acquitted involved
M.S., J.N., and R.S.
Footnote 2:
Our conclusion that Simpson's convictions must be reversed
based upon ineffective assistance of counsel makes it unnecessary
for us to address the other issues which the parties raise in this
appeal. However, there are some additional issues which we will
address summarily. The state contended that the trial court erred
in failing to dismiss Simpson's amended application for post-
conviction relief for failure to establish a prima facie case.
However, the state has not shown that it ever moved to dismiss
Simpson's amended application. Furthermore, the state has not
shown how it was prejudiced by any deficiency in Simpson's amended
application.
Simpson's contention that the police investigation
violated his due process rights is worthy of some comment. When
the government violates a defendant's due process rights, dismissal
of the case against the defendant with prejudice is a potential
remedy. See Vaden v. State, 768 P.2d 1102, 1107-08 (Alaska 1989).
However, in order to obtain dismissal by showing a due process
violation, "illegal conduct of the government is not a per se bar
to prosecution; the test is whether the government's conduct is
outrageous enough to warrant dismissal of the charges." Id. at
1107 (citations omitted). As a general premise, to be outrageous
enough to bar prosecution "the government must have 'engineered and
directed the criminal enterprise from start to finish.'" Id. at
1108 (footnote and citations omitted). In Vaden, the supreme court
appeared to approve the concept that when police violate the law
the correct remedy is generally to prosecute the police rather than
to free the defendant. Id. at 1108. In the instant case, although
Judge Woodward termed the investigator's conduct "abhorrent," she
found no connection between his investigation and the charges
against Simpson. After reviewing the witnesses' statements she
concluded that the juvenile witnesses who testified against
Simpson had not recanted their testimony. She found that there was
"certainly no evidence to support [Simpson's] theory that [the
investigator] planted the Simpson sexual assault concept in the
minds of these victims in order to satisfy either [the
investigator's] own deviant needs or to deflect attention away from
the investigation against him then under way at A.P.D." She found
that although "better police practices could have been employed in
some respects," the deficiencies in the police investigation did
not constitute due process violations. Judge Woodward's findings
and conclusions are supported by the record. Although the facts
which were presented to Judge Woodward might be sufficient to
entitle Simpson to a new trial based upon newly discovered
evidence, they were not sufficient to establish a due process
violation. Since we have already concluded that Simpson's
convictions must be reversed, we do not need to decide whether
Simpson would be entitled to a new trial based upon newly
discovered evidence.
