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Newby v. State (11/13/98) ap-1610
NOTICE: The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention
of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: twhitman@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ALAN R. NEWBY, )
) Court of Appeals No. A-6692
Appellant, ) Trial Court No. 4FA-96-1491 Civ
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1610 - November 13, 1998]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Mary E. Greene, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Nancy R. Simel, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In 1993, Alan R. Newby was convicted of murdering a
Fairbanks man named Mark Lacy. Three years later, Newby petitioned
the superior court for post-conviction relief. In his petition,
Newby asserted that he received ineffective assistance from his
trial attorney, Dick Madson. Newby contended that Madson might have
defended him better in various ways, but Newby's primary allegation
was that Madson should not have represented him at all because
Madson had a conflict of interest.
Superior Court Judge Mary E. Greene found that Madson had
not had a conflict of interest, and she further found that Madson's
representation of Newby had been competent in all other respects.
Judge Greene therefore denied Newby's petition.
Newby now appeals the superior court's ruling. For the
reasons explained here, we affirm the superior court.
Facts of the case
In February 1991, Mark Lacy was discovered in his trailer
with a single gunshot wound to his head. There was no sign of a
forced entry and no evidence of a struggle. Moreover, most of
Lacy's belongings were undisturbed. The only items missing from the
trailer were Lacy's car, some firearms, and a telephone.
Newby was arrested after he was found in possession of
Lacy's car. The missing telephone was discovered at Newby's
residence. While he was in custody, Newby attempted to sell two
shotguns that were identified as similar to the ones taken from
Lacy's home.
In February 1992 (about a year after the homicide), Newby
told a fellow inmate that he had shot and killed a man. Several
weeks later, Newby told a different inmate that he had killed a man
in Fairbanks. Newby said that he had shot this man in the head
during an argument, and that he had stolen various items from the
residence a 9-mm. handgun (which Newby identified as a "Tech-9"),
a camera, and a car.
Newby was indicted for Lacy's murder and for the theft of
the property from Lacy's residence. He hired Dick Madson to
represent him.
Newby's claim that Madson had a conflict of interest.
Newby asserts that, when Madson was defending him, Madson
had a conflicting loyalty. According to Newby, this conflicting
loyalty stemmed from Madson's ties to another attorney, Kenneth
Covell, and Covell's ties to a man named Glen Wood.
(a) Madson's ties to Covell
Madson rented office space to Covell. The two attorneys
kept their files and their finances separate, but Covell would
sometimes stand in for Madson at court hearings when Madson was
unavailable. For this service, Covell received a credit ($30 per
hour) against his rent.
Covell in fact attended several hearings on Madson's
behalf in Newby's case: the omnibus hearing, a trial-setting
conference, and proceedings during Newby's first trial to discuss
certain communications from the jury. Nothing of substance occurred
at the omnibus hearing and the trial-setting conference. The jury
communications, on the other hand, ultimately led the court to
declare the jury hung and to declare a mistrial. Thus, Covell was
acting as Newby's legal representative when the superior court
issued the order that ended Newby's first trial. However, according
to Judge Greene's later findings, it was Newby who was "adamant that
the jury be declared hung and a mistrial occur".
In addition to Covell's willingness to appear in court for
Madson, the two attorneys would sometimes confer on legal issues or
tactics in their respective cases. Moreover, Covell would sometimes
voluntarily give Madson a portion of the fees he received in
particular cases.
(b) Covell's ties to Glen Wood, and Wood's ties to
the murder prosecution
At the same time that Madson was defending Newby in the
murder prosecution, Covell was pursuing a civil lawsuit against the
State of Alaska on behalf of a man named Glen Wood. This lawsuit
was peripherally connected to Mark Lacy's death.
Following Lacy's death, while Lacy's house was cordoned
off for investigative purposes, Wood contacted the State Troopers
and informed them that a safe was hidden beneath the floorboards of
Lacy's house. Wood told the troopers that the safe was his and that
it contained $10,000. Wood explained that he had been storing the
safe in Lacy's house, and he asserted that only four people knew
about the safe: Wood himself, Wood's girlfriend, Wood's ex-wife,
and Lacy.
Alerted by Wood, the troopers located and retrieved the
safe. However, the safe was locked, and Wood refused to help the
troopers open it; the troopers therefore procured the services of
a locksmith. When the troopers opened the safe, they found
approximately $11,000 in cash. They also found plastic bags with
trace amounts of cocaine. The State refused to relinquish the money
to Wood, claiming that the money was subject to forfeiture because
it represented proceeds from the illegal sale of drugs.
Wood hired Covell as his lawyer and sued the State to
obtain the money. As noted above, Wood's lawsuit was pending at the
same time that the State was prosecuting Newby for Lacy's murder.
Covell did all the work in Wood's case, but Covell conferred with
Madson about the case because Madson had another, unrelated case
that raised similar issues.
In addition to his lawsuit against the State, Wood had a
separate, more direct link to the murder prosecution: he was the
owner of one of the firearms stolen from Lacy's residence at the
time of the murder. As noted above, Newby told a fellow inmate that
he had shot a man in the head during an argument, and that he had
stolen a 9-mm. handgun (which Newby identified as a "Tech-9") from
the man's residence. Wood had lent a "Tech-9" to Lacy. For this
reason, the government called Wood as a witness at grand jury and
at both of Newby's murder trials. However, Wood did not testify
concerning the safe at either of Newby's trials, nor was any other
evidence about the safe introduced at those trials.
(c) Newby's allegations in the petition for post-
conviction relief
In his petition for post-conviction relief, Newby asserted
that Madson was incapable of giving his full loyalty to Newby
because Covell was representing Wood in the civil suit against the
State, and because Wood was a government witness in the murder
prosecution. According to Newby, Madson's conflicting loyalty arose
either (1) from Madson's on-going relationship with Covell (which
Newby analogized to a partnership), or (2) from Madson's expectation
of financial gain from any successful conclusion of Wood's lawsuit
against the State.
Newby further asserted that Madson's conduct of the murder
defense had been tainted by this conflicting loyalty. Newby first
argued that, because Madson's "partner" (Covell) was representing
an adverse witness (Wood), Madson was obliged to disclose this fact
and obtain Newby's consent. Newby next contended that there was
plausible evidence linking Wood to Lacy's murder, but that Madson
declined to raise this defense because any suggestion that Wood was
the murderer would harm Covell's chances for a successful conclusion
of Wood's lawsuit to recover the $11,000. Newby also argued that
there was plausible evidence that Lacy was a cocaine dealer, thus
raising the possibility that some unknown person had murdered Lacy
during a cocaine deal that went bad. Again, Newby asserted that
Madson declined to investigate or present this defense because such
a defense would tend to jeopardize Wood's civil lawsuit. (That is,
evidence that Lacy was a cocaine dealer would tend to support the
government's position that the $11,000 recovered from the safe was
in fact money derived from the illegal sale of drugs.)
(d) Judge Greene's findings
After an evidentiary hearing, Superior Court Judge Mary
E. Greene concluded that Newby had failed to show that Madson's
representation of Newby was affected by any conflicting loyalty.
She issued a written order in which she made the following findings:
When Newby and Madson discussed trial strategy, Newby
urged Madson to advance the defense that (1) Lacy was a cocaine user
and possibly a cocaine dealer, and (2) Lacy had been murdered during
a drug sale (by someone other than Newby). Madson investigated this
defense, but he found no credible evidence to support it. Later,
in Newby's petition for post-conviction relief, Newby listed the
names of various people who (he asserted) could testify that Lacy
either used or sold cocaine. However, Newby never told Madson about
these potential witnesses.
Madson also considered and rejected the theory that Lacy
had been murdered by someone (perhaps Glen Wood) who had wanted to
steal the money from the safe. Madson in fact interviewed Wood
during his investigation of this potential defense. However, Madson
learned that Wood had been out of town when Lacy was killed.
Moreover, Madson was unable to find any evidence that anyone else
knew of the safe's existence (anyone other than Wood, Lacy, and the
two other people that Wood named). Additionally, Lacy's house was
left undisturbed indicating that no one had actively searched for
the safe.
In sum, Madson recognized the potential relevance of the
safe, the money, and the trace amount of cocaine, but (for the
reasons detailed above) he ultimately chose not to introduce
evidence concerning the safe and its contents. Judge Greene
concluded that Madson's decision was "based on tactical reasons
unconnected with Covell's representation of Wood" in the civil suit.
Judge Greene did not decide whether Madson's office-
sharing arrangement with Covell constituted the equivalent of a law
firm or partnership. Instead, she concluded that even if Madson's
arrangement with Covell should be deemed a "firm" for conflict of
interest purposes, no active conflict of interest had been shown.
Judge Greene found that Madson had no conflict of interest
with regard to Wood and his civil suit against the State. Madson
never spoke with Wood about the suit, and all of the legal work was
handled by Covell. Madson received no money from the settlement of
this lawsuit.
Judge Greene recognized that Covell had a potential
conflict of interest when he substituted for Madson and appeared on
behalf of Newby at the omnibus hearing, the scheduling hearing, and
the jury-communication hearings that ultimately resulted in the
declaration of a mistrial at Newby's first trial. However, Judge
Greene found that Covell's loyalty to Wood did not affect Covell's
actions or decisions on behalf of Newby at these hearings. Thus,
Judge Greene concluded, the actions and decisions taken by Madson
and Covell on behalf of Newby were not influenced by Covell's
representation of Wood.
(e) Allegations of conflict of interest: what must
be proved, and who bears the burden of proof?
Before we review the merits of Judge Greene's ruling, we
must resolve a preliminary question: which party Newby or the
State bore the burden of proof in the superior court? Newby
asserts that Judge Greene's findings are flawed because she
improperly placed the burden of proof on Newby.
Newby's underlying claim is that he received ineffective
assistance of counsel because his attorney had a conflict of
interest. Logically, such a claim potentially comprises three
elements:
1) that the attorney had a loyalty to someone else or,
alternatively, some personal interest at stake in the case;
2) that the attorney's loyalty to someone else (or the
attorney's self-interest) actively conflicted with the attorney's
loyalty to the defendant, in the sense that this outside loyalty or
self-interest actually affected the attorney's preparation or
presentation of the defendant's case; and
3) that if the attorney had not allowed this conflicting
loyalty or self-interest to affect his or her representation of the
defendant, then the outcome of the case would have been different.
Despite the fact that, logically, a conflict-of-interest
claim comprises these three elements, the United States Supreme
Court held in Cuyler v. Sullivan [Fn. 1] that, as a matter of
federal constitutional law, defendants should not be forced to prove
the third element. If a defendant proves that their attorney
labored under a conflicting interest, and if the defendant also
proves that this conflicting interest actually affected the
attorney's actions or decisions in the defendant's case, then the
defendant is entitled to relief regardless of whether the defendant
can show "prejudice" can show that the outcome of the case was
affected by the attorney's tainted actions or decisions. [Fn. 2]
However, Sullivan also held that when a defendant does not
raise a conflict-of-interest claim until after trial, the defendant
bears the burden of proving elements 1 and 2 proving that the
attorney had a conflicting loyalty and that this conflicting loyalty
actually affected the attorney's actions or decisions. [Fn. 3]
Alaska law is somewhat different.
In Moreau v. State [Fn. 4], the Alaska Supreme Court held
that, whenever two or more co-defendants are represented by the same
attorney, the trial judge has a duty to advise these defendants of
the risks of joint representation and to inquire if, being advised
of these risks, the defendants still wish to be represented by the
same attorney. If the trial judge fails to conduct this inquiry (or
if the appropriate waivers are not obtained from the affected
defendants), then if one of these defendants later claims that their
attorney's representation was affected by a conflict of interest,
it is the State that bears the burden of disproving element 2 beyond
a reasonable doubt. That is, the State must prove beyond a
reasonable doubt that the attorney's multiple loyalties did not
affect the attorney's representation of the complaining defendant.
(In such cases, element 1 is obviously a foregone conclusion.)
In State v. Celikoski [Fn. 5], this court applied the
Moreau rule to a slightly different situation. Celikoski involved
two defendants who were ostensibly represented by two different
attorneys, one from Alaska and the other from out of state.
However, the Alaska rules of court require an out-of-state attorney
to associate with an Alaska attorney. [Fn. 6] Unbeknownst to
Celikoski, Celikoski's own attorney was acting as the Alaska
associate of his co-defendant's out-of-state attorney. In that
capacity, Celikoski's attorney consulted with the out-of-state
attorney about the co-defendant's case. [Fn. 7] We held that, under
such circumstances, Moreau supplied the governing rule: the State
bore the burden of proving that this conflict of interest had not
affected the representation Celikoski received from his attorney.
[I]n order to qualify for post-conviction
relief, Celikoski need[ed] only [to] establish that [his attorney]
had undertaken the dual representation and that the trial judge did
not "personally advise [Celikoski] of [the] potential dangers
inherent in dual representation." Moreau, at 284. Once Celikoski
proved this, ... "the burden {then shifted} to the state to prove
beyond a reasonable doubt that a prejudicial conflict did not
exist." Id.
Celikoski, 866 P.2d at 142. [Fn. 8]
On one level, it may seem surprising to apply the Moreau
rule to the situation presented in Celikoski. The Moreau rule was
created for cases in which two or more defendants appear in court
represented by the same attorney. This circumstance puts both the
judge and the State on notice that there is a potential problem, and
the trial judge is motivated to conduct the mandated inquiry
because, if the trial judge fails to do so, any ensuing conviction
is much more subject to collateral attack. But requiring a trial
judge to advise defendants of the dangers of joint representation,
and requiring a trial judge to obtain waivers from the affected
defendants, seemingly makes sense only if the trial judge is on
notice that there is a problem. In Celikoski, the trial judge was
unaware that Celikoski and his co-defendant were represented by the
same attorney; indeed, Celikoski was likewise unaware of his peril.
And so, of course, the judge made no inquiry.
On another level, however, there is good reason to make
the government shoulder the burden of proof in cases like Celikoski.
The defendant in Celikoski was obviously in much more need of
protection than the defendants in Moreau because, unlike the
defendants in Moreau, Celikoski did not know that his attorney was
simultaneously representing a co-defendant. Such a conflict
potentially infects every major aspect of the representation:
planning the defense strategy, investigating the case, deciding
whether to seek or accept a negotiated settlement, deciding how to
present and argue the case, and (if the client is convicted)
deciding how to approach sentencing. [Fn. 9] When a defense
attorney operates under such a fundamental and pervasive conflict
of interest, the effectiveness of the representation and the
fairness of the defendant's trial are placed in grave doubt. In
these circumstances, we could properly require the highest degree
of proof that the defendant suffered no adverse affect before we set
our judicial imprimatur on the defendant's conviction.
Newby argues that, because he was unaware of Madson's
potential conflicting loyalty to Wood, his case should be governed
by the same rule we applied in Celikoski. According to Newby, once
he showed that Madson had a potentially conflicting loyalty to Wood,
then it was the State's burden to prove beyond a reasonable doubt
that Madson's loyalty to Wood had no effect on Madson's actions and
decisions in Newby's case. The State responds that Celikoski has
been "overruled" by the enactment of AS 12.72.040, which declares
that "[a] person applying for post-conviction relief must prove all
factual assertions by clear and convincing evidence." [Fn. 10]
We conclude that we need not decide whether the holding
in Celikoski has been superseded by statute. Even if Celikoski has
survived the enactment of AS 12.72.040, Celikoski does not govern
Newby's case. Instead, Newby's case is governed by our decision in
LaPierre v. State. [Fn. 11]
In LaPierre, different attorneys in the Public Defender
Agency were representing LaPierre and another man named David
Simmons. LaPierre's and Simmons's cases were unrelated, but the
Agency nevertheless asked the trial court for permission to withdraw
from LaPierre's case. LaPierre's assistant public defender asserted
that the Agency faced a conflict of interest because LaPierre might
be called as a witness in Simmons's case. The trial court denied
this motion and ordered the Agency to continue representing both
men. [Fn. 12]
On appeal, LaPierre asserted that he had received
ineffective assistance of counsel because his attorney (or, rather,
his attorney's law firm, the Public Defender Agency) had a
conflicting loyalty to Simmons. Apparently analogizing his case to
Moreau, LaPierre argued that it was the State's burden to prove
beyond a reasonable doubt that LaPierre's legal representation had
not been affected by this alleged conflict of interest. This court
rejected LaPierre's argument and instead held that it was LaPierre's
burden to prove that the Public Defender Agency's loyalty to Simmons
actually affected the Agency's representation of LaPierre.
Even assuming [that LaPierre established]
an actual conflict of interest ... , he is incorrect in maintaining
that a per se rule of reversal applies. We decline to find that
reversal automatically follows upon a bare showing of conflict of
interest. Our view reflects the position adopted recently by the
United States Supreme Court in Cuyler v. Sullivan [citation omitted]
and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
. . .
In this case, LaPierre has, at most,
demonstrated the existence of a conflict in the abstract. He has
neither alleged nor demonstrated that his counsel "actively
represented conflicting interests" or that the purported conflict
"adversely affected his lawyer's performance." ... To the
contrary, it appears that LaPierre was never actually called as a
witness or required to testify at Simmons' trial. LaPierre has
failed to make an adequate showing to justify a presumption of
prejudice under the Cuyler [sic: Sullivan] and Strickland standard.
LaPierre, 734 P.2d at 1003-04. In other words, when the alleged
conflict of interest involved the potentially conflicting interests
of clients in unrelated cases, then even though the potential
conflict was explicitly brought to the trial judge's attention, we
concluded that Moreau no longer provided the governing rule.
Instead, we followed Sullivan and placed the burden of proof on
LaPierre.
As explained above, LaPierre was a case in which the
alleged conflict of interest arose from the fact that (1) two
attorneys within the same law firm (2) were representing different
clients in different cases, and (3) these clients had potentially
conflicting interests. Newby's case is similar: Newby asserted
that there was a substantial link between his attorney (Madson) and
another attorney (Covell), and that this other attorney had a client
(Wood) who potentially could be called as a witness at Newby's
trial. The one significant difference between Newby's case and
LaPierre is that Newby faced an additional legal hurdle: the State
did not concede that Madson and Covell were so closely affiliated
that a conflicting interest of one should be imputed to the other.
If LaPierre governs Newby's case, then Newby bore the
burden of proving (1) that Madson had a conflicting loyalty to Wood
(through Covell), and (2) that this conflicting loyalty actually
affected Madson's representation of Newby. Seeking to avoid this
result, Newby argues that he is entitled to application of the
Moreau rule (under which the State bears the burden of proof)
because, like the defendant in Celikoski, Newby remained ignorant
of his attorney's potential conflict. We conclude, however, that
Newby's lack of awareness is not the deciding factor.
The difference between Moreau and Celikoski, on the one
hand, and LaPierre, on the other, is the type of conflict presented.
Moreau and Celikoski involved a particularly egregious type of
conflicting interest: an attorney who owed simultaneous and equal
loyalty to two defendants in the same criminal litigation.
LaPierre, on the other hand, involved an assertion of conflict that
could be made more frequently: the assertion that the defendant's
attorney was affiliated in some way with another attorney, and that
this other attorney had a client whose interests did not coincide
with the defendant's interests.
We held in LaPierre that, even though the defendant had
brought this potential conflict directly to the attention of the
trial judge, it was still the defendant's burden on appeal to prove
(1) that the alleged conflict of interest really existed, and
(2) that this conflicting interest actually affected the defense
attorney's representation of the defendant. We reach the same legal
conclusion in Newby's case. It was Newby's burden to prove that
Madson had a conflicting loyalty and that this conflicting loyalty
actually affected Madson's representation of Newby.
(f) Are Judge Greene's findings clearly erroneous?
As explained above, Judge Greene ruled that Newby had
failed to prove that Madson had a conflicting loyalty to Wood and
that this outside loyalty affected his representation of Newby.
Because (as explained in the preceding section) we agree with Judge
Greene that Newby bore the burden of proof on these questions, the
remaining issue is whether Judge Greene's findings are clearly
erroneous. [Fn. 13]
Newby renews his argument that the affiliation between
Madson and Covell constituted a "firm", so that any conflicting
loyalty that Covell owed to Wood should be imputed to Madson. Judge
Greene did not directly rule on this issue. However, given Judge
Greene's findings of fact concerning the relationship between Madson
and Covell, Alaska law suggests that these two lawyers did not
constitute a firm.
The commentary to Alaska Professional Conduct Rule 1.10
highlights certain hallmarks of a "firm": (1) lawyers who represent
themselves to the public as one professional entity, (2) lawyers who
have a formal agreement among themselves concerning the management
of their practice and the sharing of income, and (3) lawyers who
have mutual access to confidential information concerning each
other's clients. The commentary adds, "[T]wo practitioners who
share office space and occasionally consult or assist each other
ordinarily would not be regarded as constituting a firm." [Fn. 14]
Under these guidelines, it appears that Madson and Covell
did not constitute a "firm" for the purpose of imputing Covell's
client loyalties to Madson. However, like Judge Greene, we find it
unnecessary to decide this issue. Even assuming that Covell's
loyalty to Wood could somehow be imputed to Madson, Newby failed to
show that Madson's conduct of his defense was actually affected by
the potentially conflicting loyalty to Wood.
Judge Greene found that Madson had actively considered and
investigated the potential relevance of the safe hidden in Lacy's
house (and the money and traces of cocaine found in that safe). She
also found that Madson had concluded, for reasons unaffected by any
supposed loyalty to Wood, that it would not be fruitful to build
Newby's defense upon this evidence.
At Newby's urging, Madson investigated the possibility
that Lacy was a cocaine dealer who had been murdered in connection
with a drug deal. Madson found no credible evidence to support such
a defense. When Newby litigated his action for post-conviction
relief, he asserted that various witnesses were available who could
testify that Lacy was a cocaine dealer; however, Newby never
supplied this information to Madson.
Similarly, Madson considered the possibility that Wood had
killed Lacy to recover the money in the safe. However, Madson
discovered that Wood had been out of town when Lacy was murdered.
Moreover, if Madson were to argue that Wood killed Lacy to recover
the safe, Madson would have to explain why Wood left the safe in
Lacy's house and then called the State Troopers to ask their
assistance in recovering it.
Finally, Madson considered and investigated the
possibility that Lacy had been murdered by someone else (other than
Wood) who knew about the safe and the money. However, Madson was
unable to discover any evidence indicating that the presence of the
safe was known to anyone outside the four people mentioned by Wood:
Wood, his girlfriend, his ex-wife, and Lacy. And if Madson were to
argue that someone else had come to Lacy's house to steal the safe,
he would have to explain why Lacy's house was undisturbed.
Judge Greene's findings of fact concerning Madson's
investigation and planning of Newby's defense support the judge's
ultimate conclusion that Madson's representation of Newby was not
affected by any supposed loyalty to Wood. Newby has not shown that
Judge Greene's findings of fact are clearly erroneous. We therefore
uphold Judge Greene's findings, and, like Judge Greene, we conclude
that Newby failed to prove that Madson's representation was affected
by any conflicting loyalty.
Newby's claims that Madson, apart from any conflict of
interest, represented him incompetently.
Apart from allegations of conflict of interest, Newby
asserts that Madson represented him incompetently when Madson
(1) failed to dispute the State's evidence concerning the time of
Lacy's death, (2) failed to adequately investigate the possibility
that Lacy's murder was a drug-related homicide, and (3) failed to
call certain witnesses on Newby's behalf. After hearing Newby's
allegations, Judge Greene concluded that Newby had failed to prove
that Madson's actions fell below the range of competency expected
of criminal law practitioners.
Under Risher v. State [Fn. 15], a defendant who alleges
ineffective assistance of counsel must demonstrate that their
attorney failed to "perform at least as well a lawyer with ordinary
training and skill in the criminal law". The law presumes that an
attorney has acted competently, and that the attorney's decisions
were prompted by sound tactical considerations. [Fn. 16] To prevail
in a post-conviction relief action based on ineffective assistance
of counsel claim, the defendant must rebut this presumption.
In the superior court, Newby did little other than argue
that Madson should have done more investigation and should have
pursued several of Newby's own defense theories (including the
theory that Lacy was killed by someone who was upset by a drug
transaction). In answer to Newby's claims, Madson explained that
he did not have any witnesses to corroborate Newby's theory that
Lacy had been a drug dealer, nor did he have credible witnesses to
support any of Newby's other theories regarding Lacy's death. The
record suggests that Madson, after investigating and rejecting these
theories, decided to focus on rebutting and discrediting the State's
evidence rather than trying to discover alternative killers.
The record shows that Madson considered Newby's theories
of the case, conducted a reasonable investigation of the case, and
then formulated a reasonable defense strategy. Like Judge Greene,
we conclude Newby failed to prove that he received ineffective
assistance of counsel.
Conclusion
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
Footnote 2:
Id., 446 U.S. at 349-350, 100 S.Ct. at 1719.
Footnote 3:
See id., 446 U.S. at 348-49, 100 S.Ct. at 1718.
Footnote 4:
588 P.2d 275, 284 (Alaska 1978).
Footnote 5:
866 P.2d 139 (Alaska App. 1994).
Footnote 6:
See Alaska Civil Rule 81(a)(2)(a)-(b).
Footnote 7:
Celikoski, 866 P.2d at 140.
Footnote 8:
Bracketed text indicates an editorial change by this court; the
text in braces appeared in brackets in the original.
Footnote 9:
See State v. Olsen, 258 N.W.2d 898, 905 (Minn. 1977) (cited in
Moreau, 588 P.2d at 283 n.26).
Footnote 10:
See also Alaska Criminal Rule 35.1(g), which provides (in
pertinent part): "Unless otherwise required by statute or
constitution, the applicant [for post-conviction relief] bears the
burden of proving all factual assertions by clear and convincing
evidence."
Footnote 11:
734 P.2d 997 (Alaska App. 1987).
Footnote 12:
Id. at 1003.
Footnote 13:
See Donnybrook Building Supply v. Interior City, 798 P.2d 1263,
1266 (Alaska 1990) (a trial court's findings concerning the
underlying facts will be upheld unless they are clearly erroneous).
See also Alaska Civil Rule 52(a): "Findings of fact shall not be
set aside unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge the credibility of
the witnesses."
Footnote 14:
Comment to Alaska Rule of Professional Conduct 1.10,
"Definition of 'Firm'", first paragraph.
Footnote 15:
523 P.2d 421, 424 (Alaska 1974).
Footnote 16:
See State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
