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State v. Savo (03/11/2005) ap-1975
State v. Savo (03/11/2005) ap-1975
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
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No.
A-8583
Appellant, )
Trial Court No. 3DI-00-162 Civ
)
v. )
) O P I N
I O N
ALLEN SAVO, )
)
Appellee. )
[No. 1975 March 11, 2005]
)
Appeal from the Superior Court, Third Judi
cial District, Dillingham, Fred J. Torrisi,
Judge.
Appearances: Michael Sean McLaughlin,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellant. J. Adam Bartlett,
Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Four years ago, Allen Savo was convicted of first-
degree sexual assault for raping his former girlfriend, S.W..
Following his conviction, Savo filed a petition for post-
conviction relief, alleging that he had received ineffective
assistance of counsel from his trial attorney, Assistant Public
Defender Steven Wells.
Savos petition went to trial. Based on the evidence
presented, Superior Court Judge Fred J. Torrisi concluded that
Savo had indeed received ineffective assistance from Wells; the
judge accordingly granted Savo a new trial. The State now
appeals this ruling. For the reasons explained here, we conclude
that even when the evidence is viewed in the light most favorable
to Savo, the evidence fails to establish Savos claim of
ineffective assistance of counsel. We therefore reverse the
superior courts ruling and reinstate Savos conviction.
Underlying facts: the evidence and the defense theory
of the case at Savos criminal trial
Savo was in a romantic relationship with S.W.
during 1997-99, but their relationship was not always
harmonious. In May 1999, Savo was charged with
assaulting S.W.; the assault was apparently
precipitated when S.W. expressed dissatisfaction with
the relationship. (During the assault, Savo told S.W.,
If you leave, I will kill myself.)
As a condition of his bail release, Savo was
prohibited from contacting S.W.. But despite this no-
contact order, Savo and S.W. continued to see each
other (and to have sexual relations) until mid-July
1999.
On July 23, 1999, S.W. was at a social
gathering at her mothers house. S.W. testified that
Savo called the house early on the morning of the 24th
and asked S.W.s mother what [S.W.] was doing [and] who
she was with. Savo eventually talked to S.W., and S.W.
agreed to meet him at his mothers house. S.W. left for
Savos mothers house between 3:00 and 4:00 in the
morning on July 24th.
According to S.W.s testimony at Savos
criminal trial, when she arrived at the house, Savo
grabbed her and threw her to the floor, and then he
began assaulting her and verbally abusing her. S.W.
attempted to escape by going into a bedroom, locking
the door, and then trying to climb through a window,
but Savo thwarted this attempt. Savo pushed S.W. into
his mothers bedroom and took her clothes off. There,
despite S.W.s pleas, Savo proceeded to rape her.
S.W. did not leave the house for some seven
hours after the assault. She testified that she stayed
with Savo because, every time she tried to leave, Savo
would awaken. S.W. also testified that she did not
telephone the police because the phone lines had been
ripped from the wall.
S.W. eventually left Savos mothers house
around noon. She went to her friend Leah Timmermans
residence. Timmerman testified that S.W. was upset
when she arrived, and that S.W. reported that Savo had
raped her. A little later, S.W. returned to her own
mothers house, and from there she called the police.
S.W.s testimony at Savos criminal trial
differed in several respects from her pre-trial
accounts of the rape. For example, S.W. initially told
the police that Savo had pulled her off the street and
into the house, although she testified at trial that
she had entered the house voluntarily. S.W.s trial
testimony was also inconsistent with the physical
evidence. The bedroom door that she said she locked
(during her escape attempt) did not lock from the
inside. And the telephone that she said had been
pulled out of the wall was functional (according to
Savos mothers testimony). Moreover, during the medical
examination that was administered to S.W. following her
report of sexual assault, the nurse noted multiple
bruises over S.W.s body, and bite marks on her arm, but
the nurse did not observe any lesions on S.W.s
genitalia (a common sign of forced sexual intercourse).
The medical examination did, however, appear
to confirm S.W.s claim that Savo had had sex with her.
S.W.s vagina contained motile sperm, and a genetic
sample collected from S.W.s vagina was consistent with
Savos DNA. An expert testified that, among the Yupik
population, the chance that another person would have
those same DNA characteristics was 1 in 2,700.
There were other inconsistencies or
weaknesses in S.W.s account of these events. S.W.
testified that, when she agreed to meet Savo at his
mothers house on the morning of July 24th, she believed
that Savos mother would be home. But Savos mother
testified that she had told S.W. that she would be out
of town. Further, S.W. testified that, during the
assault, Savo grabb[ed] her and push[ed] [her] around;
S.W. claimed that even though she fought [and] tried
[her] hardest, Savo was just overpowering. Yet S.W.
was a considerably larger person than Savo: she
weighed 235 pounds compared to Savos 132 pounds.
S.W. testified that, during the assault,
someone came to the door of Savos mothers house,
prompting S.W. to call out for help. But this person
never contacted the police and, in fact, his identity
remained unknown to the authorities at the time of
Savos trial. S.W. also testified that, when she fled
the house, she left some clothes behind, but these
clothes never materialized.
Despite Savos and S.W.s long-term romantic
relationship, Savos defense attorney, Assistant Public
Defender Steven Wells, decided not to argue consent
i.e., decided not to argue that an act of sexual
intercourse had occurred between Savo and S.W. on the
morning of July 24th, but that S.W. had consented to
this act of intercourse. Instead, Wells argued that
S.W. had woven the tale of rape from whole cloth
because she was angry at Savo for breaking off their
relationship.
(When Wells testified at the post-conviction
relief evidentiary hearing, he explained that, based on
his early interviews with Savo, he initially was going
to pursue a defense of consent. But Wells ultimately
decided (based on Savos demeanor and attitude) that
Savo would make a poor witness and that therefore, if
possible, it would be better to pursue a defense that
did not require Savo to take the stand. According to
Wellss post-conviction relief affidavit, he tested his
defense theory (that S.W. had invented the claim of
rape) by presenting a summary of his intended case to a
mock jury. The mock jury acquitted Savo finding that
Wells had presented convincing attacks on the
credibility of S.W.s account of the rape, and that S.W.
was lying.)
At Savos trial, Wells suggested to the jury
that Hell hath no fury like a woman scorned, and Wells
presented testimony that, earlier in the summer, S.W.
had said to Savo, Ill put you in jail so [that] you
cant go running ... to your [new] little girlfriends.
Focusing on the inconsistencies and weaknesses in S.W.s
story, as well as potential flaws and incompleteness
in the police investigation, Wells argued that the
State had failed to prove (beyond a reasonable doubt)
that Savo and S.W. had had any sexual encounter on the
morning of July 24th.
Despite the arguable weaknesses in the States
case, the jury found Savo guilty. This Court affirmed
Savos conviction on direct appeal.1
Underlying facts: Savos petition for post-conviction
relief, and Judge Torrisis ruling
Following his conviction (and while his
direct appeal was pending), Savo filed a petition for
post-conviction relief in which he criticized Wellss
performance in a number of respects. Savo alleged that
Wells had been ineffective in his pre-trial
investigation of the case, in his failure to object to
various portions of the governments evidence, and in
his cross-examination of key government witnesses (in
particular, S.W.).
Wells submitted an affidavit addressing many
of these points. Wells also was called as a witness at
the evidentiary hearing. Finally, Savo presented the
deposition of an experienced criminal trial attorney,
William F. Dewey, who criticized certain aspects of
Wellss performance. Based on this evidence, Judge
Torrisi concluded that Wells had been ineffective in
his cross-examination of S.W., and he granted Savos
petition on this basis. The judge either expressly
rejected or failed to address all of Savos other
allegations.
Savos argument that the State is procedurally barred
from challenging Judge Torrisis ruling
On December 26, 2002, Judge Torrisi initially
issued a Memorandum in which he rejected certain of
Savos claims of ineffective assistance of counsel but
declined to rule on others. Instead, the judge engaged
in a conversational treatment of these alleged errors,
noting various arguable strengths or weaknesses in
Savos claims.
Although the judge described his memorandum
as a tentative decision of Savos claims, and although
the judge stated that his purpose in writing the
memorandum was to give the attorneys a chance to see
where [he was] headed, the memorandum did not come to
any conclusions. That is, Judge Torrisi did not
announce that he intended to rule either for or against
Savo on any given claim unless he was later convinced
differently. Rather, the judge stated that [he was]
not wholly comfortable ruling [on Savos claims] at this
point. He told the parties that he would allow them to
supplement their final arguments but not the evidence
in the case with additional memoranda not to exceed
ten pages in length.
Almost two months later (on February 24,
2003), Savo filed a supplemental memorandum in which he
renewed various arguments concerning the purported
incompetence of Wellss efforts. The State, for its
part, chose not to supplement its final argument with a
new memorandum.
Two days after Savo filed his supplemental
memorandum, Judge Torrisi issued his final order. In
this order, the judge declared (without further
explanation) that the deficiencies [in Wellss cross-
examination of S.W.] noted at pages 12-18 of [my]
December memorandum[, taken] together[,] constitute
ineffective assistance of counsel.
Based on this procedural history, Savo now
argues that the State is estopped from appealing Judge
Torrisis ruling. He relies on the principle that an
appellant can not rely on arguments that were not
raised in the trial court.2 But the State did contest
Savos claims of ineffective assistance, both by arguing
that Savo had failed to show that Wells acted
incompetently and by arguing that Savo had failed to
show prejudice from the alleged attorney errors. The
fact that the State failed to respond to Judge Torrisis
invitation for a memorandum restating or supplementing
these arguments does not constitute a waiver of
arguments presented before.
Moreover, this Court has previously indicated
that a court should not grant relief to a defendant
simply because of the governments procedural default.
Even when the government fails to respond to the
defendants contentions, a court should grant relief to
a defendant only when the defendant proves entitlement
to relief: A person seeking court action must plead
facts that demonstrate his or her legal entitlement to
the requested action; this is true whether or not an
opposing party files a response. Willie v. State, 829
P.2d 310, 312 (Alaska App. 1992).
Federal courts follow the rule that a court
should not award default judgement against the
government in a proceeding for post-conviction relief.3
We adhere to this same rule.
We therefore turn to the merits of Judge
Torrisis decision, to determine whether the record
supports his findings of ineffective assistance of
counsel.
Judge Torrisis ruling that Wellss cross-examination of
S.W. was incompetent
Judge Torrisi found that Wellss cross-
examination of S.W. was incompetent in several
respects.
(a) Wellss failure to cross-examine S.W.
concerning the precise date and time of her last
consensual sexual intercourse with Savo
First, Judge Torrisi ruled that Wells was
incompetent because he failed to pin down S.W.
concerning the precise date and time when she and Savo
last had consensual sex. As explained above, motile
sperm were found in S.W.s vagina during the sexual
assault examination on the afternoon of July 24th.
According to the expert testimony presented at Savos
criminal trial, the fact that the sperm were still
motile meant that the act of intercourse had most
likely occurred within 48 hours of the examination.
The expert stated that this act of intercourse could
not have occurred four days prior.
If Savos attorney had adopted a defense of
consent, then the presence of the sperm would not have
been an issue. But, as explained above, Wells chose to
argue that S.W. was lying when she reported that she
and Savo had engaged in an act of sexual intercourse on
the morning of July 24th. As Judge Torrisi correctly
noted, one of the problems of adopting this defense was
how to explain the presence of the matching sperm in
S.W.s body.
At Savos trial, S.W. testified that she and
Savo had broken off their relationship in the days just
prior to the sexual assault. S.W. stated that the
relationship ended a couple of days prior to July 24,
1999 and that she and Savo continued to have
consensual sexual relations until a day or two prior to
this break-up. Thus, viewing the evidence in the light
most favorable to the State, S.W. and Savos last act of
consensual intercourse was approximately four days
before July 24th too early to explain the presence of
the sperm in S.W.s body on the afternoon of July 24th.
Wells did not cross-examine S.W. on this
point. Rather, during his summation to the jury, he
expressly argued that S.W. and Savo had had sexual
intercourse within a couple of days of July 24th.
Regarding S.W.s statements that their last act of
consensual intercourse had been earlier than that,
Wells pointed to the various factors indicating S.W.s
general lack of credibility, and then he asked the
jurors, Do you think shes telling the truth about how
frequently they had sex [and] about when was the last
time they had sex? Wells suggested that S.W. and Savo
had consensual sex on the afternoon of July 23rd i.e.,
on the afternoon before the alleged rape and that this
would explain the presence of motile sperm on the
afternoon of July 24th.
In his decision, Judge Torrisi faulted Wells
for failing to impeach S.W. with her grand jury
testimony and her statements during the sexual assault
examination on the afternoon of July 24th. According
to Judge Torrisi, this evidence indicated that S.W. and
Savo had last had consensual sex a day or two before
she was raped. However, Judge Torrisi overstated this
evidence. At grand jury, S.W. testified that her last
consensual sexual intercourse with Savo occurred a
couple of days or so before the evening of July 23rd-
24th. And during the sexual assault exam, S.W. told
the interviewing officer (Officer Dennis Varner) that
she had broken up with Savo a couple days before the
assault, and that their last act of consensual
intercourse had occurred [the] day before we broke up.
In other words, S.W.s grand jury testimony and her
statements during the sexual assault interview were not
strikingly at odds with her trial testimony. Even
taken at face value, her accounts did not establish
that the couples last act of consensual intercourse
occurred within the 48 hours immediately preceding
S.W.s medical examination on the afternoon of July
24th.
Judge Torrisi noted that, according to Wellss
testimony at the post-conviction relief evidentiary
hearing, Savo told Wells (in advance of trial) that he
and S.W. had consensual sex within eighteen hours of
the time S.W. reported that she was raped. In other
words, Savo told Wells that this consensual sex
occurred sometime on the evening of July 23rd or on the
morning of July 24th.
However, Wells decided that it would be a bad
idea to have Savo take the stand, and Judge Torrisi did
not find that decision to be incompetent. Given that
Savo was not going to testify, and in the absence of
any other admissible evidence to establish the truth of
Savos assertion, it arguably would have been improper
for Wells to cross-examine S.W. in such a manner as to
suggest that there was evidence firmly pinpointing her
last consensual sexual intercourse with Savo as having
occurred on the evening of July 23rd or the morning of
July 24th.4
But more important, as Judge Torrisi himself
conceded in his memorandum, Savo never asked Wells to
explain his handling of this issue. In post-conviction
relief litigation involving a claim of ineffective
assistance of counsel, one of the petitioners duties is
to confront their trial attorney with the acts or
omissions that purportedly demonstrate the attorneys
incompetence, and ask the attorney to respond.
Assuming the attorney is available, if the petitioner
fails to confront the attorney with the allegations of
error, these unexamined allegations can not form the
basis for post-conviction relief.5
Thus, regardless of the facts, Judge Torrisi
committed an error of law when he ruled in Savos favor
on this claim.
(b) Wellss failure to cross-examine S.W.
concerning the identity of the person who
allegedly came to Savos door during the assault
(and who, presumably, would have heard S.W.
yelling)
During the sexual assault examination, S.W.
told the nurse and the investigating officer that
someone had come to the door while Savo was assaulting
her:
Nurse: And no one else was there in the
house with you [during the assault]?
S.W.: Mm-hmm. A friend ... stopped by,
and I screamed for him to ask him to help me,
but [Savo] kind of pushed him out, and shut
the door and locked it. No one ever came
over. ...
Officer Varner: Do you think anybody
may have heard your screaming and hollering?
S.W.: I have no clue, but I was
screaming at the top of my lungs.
The police were not able to
identify this person during their
investigation of Savos case. Wells, too,
recognized the importance of trying to
identify and locate this person. Clearly, if
this person could testify that they stood in
the doorway of the house and heard no
screaming, this would be a substantial blow
to S.W.s credibility. Wells and his
investigator spoke to several people, trying
to identify the person who came to the door
of Savos mothers house. However, each person
they spoke to denied knowing anything about
the incident.
Despite his lack of success in
locating the person who came to the door,
Wells perceived that the absence of this
mysterious person posed a problem for the
State: the prosecutor would be forced to
explain how it could be that someone came to
the door of Savos mothers house, heard a
woman screaming for help, and did nothing.
During Wellss cross-examination of
S.W., Wells made sure that S.W. committed
herself to the story of the visitor at the
door:
Defense Attorney: You said [that] you
were screaming your lungs out?
S.W.: Yes.
Defense Attorney: Trying to get
somebody to come to your help?
S.W.: Yes.
Defense Attorney: And during this
incident, in fact, somebody did come to the
front door.
S.W.: Uhm-hm. [yes]
Defense Attorney: Somebody knocked on
the door, right? ... And you were
screaming. And [Savo] went to the front
door, didnt he?
S.W.: Yep.
Defense Attorney: And [Savo] pushed
[this person] out?
S.W.: Uhm-hm. [yes]
Defense Attorney: Okay. And [Savo] was
... doing [all] he could do to make sure that
this person could not come into the house,
correct?
S.W.: [No audible response]
Defense Attorney: At that point, you
were still screaming, right?
S.W.: [No audible response]
. . .
Defense Attorney: But nobody came?
S.W.: Nope.
Defense Attorney: This person who got
pushed out [the door] did not call the
police?
S.W.: Nope.
Later, when Wells presented his
summation to the jury, he relied on this
portion of S.W.s cross-examination. Wells
reminded the jurors of S.W.s account, and
then he suggested that it simply did not make
sense. Wells argued that if someone had come
to the door, and if S.W. was screaming at the
top of her lungs (as she testified), then
this person surely would have heard S.W.
screaming and would have called the police
rather than simply walking off into the
night. Wells also suggested that S.W.s
account did not make sense in another way:
if Savo had been obliged to leave S.W. in
order to go to the door and prevent this
person from coming into the house, what
prevented S.W. from either coming to the door
herself, or from calling the police?
During the litigation of Savos
petition for post-conviction relief, it was
revealed that, following the conclusion of
Savos trial, a man named Vaughn Clark came
forward and identified himself as the person
who came to the door of Savos mothers house.
Clark was, in fact, one of the people
interviewed by the defense team during the
preparation of Savos defense. At that time,
when the defense team asked Clark whether he
was the person who came to the door, he
denied it. Clark now claimed that his new
version of events was the truth and that he
had decided to tell the truth because he felt
bad that Savo had been convicted.
(Strangely enough, even after Clark
identified himself as the person at the door,
Savos post-conviction relief attorney never
presented any evidence concerning (1) what
S.W. would have said if someone suggested to
her that Clark was the person who came to the
door; and (2) what Clark would have said if
he were called to testify about what he saw
and heard when he came to Savos mothers house
on the morning of July 24th. There is
nothing in the record to indicate what S.W.s
or Clarks answers to these questions would
be. It may be that Savos post-conviction
relief attorney recognized that this was a
moot issue, since it was undisputed that
Wells or his investigator had interviewed
Clark before Savos trial, and Clark had told
them that he was not the person they were
seeking.)
In his post-conviction relief
ruling, Judge Torrisi acknowledged that Wells
had apparently not known (until Savos trial
was over) that Clark was (or claimed to be)
the person who came to the door. (In fact,
even now it is unclear whether Clark was
telling the truth when he identified himself
as the person at the door; this issue has
never been litigated.) Judge Torrisi further
acknowledged that, even at the close of the
post-conviction relief evidentiary hearing,
it remained unclear what, if anything,
Mr. [Clark] could tell us about the night in
question. Nevertheless, Judge Torrisi
concluded that Wells had demonstrated
incompetence when, during his cross-examina
tion of S.W., Wells failed to press S.W. to
reveal the identity of the person who came to
the door, and failed to ask S.W. why she had
declined to provide this persons name to the
police who were investigating the rape.
The judge conceded that [t]here is
some risk when you ask a question in the dark
like this, but the judge concluded that it
was unlikely that [S.W.] would name some
[person] who would then come [to court] and
say, You know, youre right, I did hear a lot
of screaming that night. The judge
therefore concluded that it was a mistake
[for Wells] not to have inquired further
even though the judge acknowledged that he
had no idea [how] [S.W.] [might] have
responded if she had been asked such
questions.
Judge Torrisis ruling is based on a
series of speculative inferences that find
little or no support in the record and that
are, as a legal matter, insufficient to
establish ineffective assistance of counsel.
First, Judge Torrisi appears to
have assumed (based on S.W.s use of the word
friend) that S.W. knew the identity of the
person who came to the door. But S.W.s use
of this word was arguably ambiguous. From
the wording of her statement, S.W. might have
been referring to someone who was an
acquaintance of hers, but she might instead
have been referring to someone whom she
recognized as an acquaintance of Savos or,
alternatively, someone whom she inferred was
an acquaintance of Savos (based on the fact
that this person came to the door, and that
Savo conversed with this person).
At any rate, if as Judge Torrisi
apparently believed S.W.s knowledge of the
identity of the visitor at the door was
central to Savos claim of ineffective
assistance of counsel, it was Savos burden
(as the petitioner for post-conviction
relief) to prove this fact by clear and
convincing evidence.6 To the extent that
Judge Torrisis ruling implies that he found
that Savo had proved this fact by clear and
convincing evidence, the judges finding is
clearly mistaken.
Next, Judge Torrisi concluded that
Wells was incompetent for failing to question
S.W. about the identity of the visitor at the
door even though the judge had no idea what
S.W.s answers would have been. Judge Torrisi
declared that it was unlikely that S.W. would
have identified a person who would then come
to court and corroborate her story. But this
is complete speculation. There are famous
instances in our judicial history of people
who heard crime victims screaming for help,
yet turned away and did nothing because they
did not wish to get involved.7 This may have
been true in Savos case. There is no way of
knowing because the record contains no basis
for drawing a conclusion one way or the
other.
Judge Torrisi did not know what
S.W.s answers would have been, or what
further evidence those answers might have led
to, because Savo failed to present evidence
on these points thus failing to meet his
burden to prove his claim for post-conviction
relief. See State v. Jones, 759 P.2d 558,
573-74 (Alaska App. 1988), where this Court
held that when a petitioner for post-
conviction relief criticizes their trial
attorneys failure to pursue avenues of
investigation or cross-examination, it is the
petitioners burden to produce evidence to
show that independent testing would likely
have yielded exculpatory evidence, [or] that
potential witnesses would actually have given
favorable testimony, or that additional cross-
examination would have weakened the states
case.
In addition, Judge Torrisis ruling
appears to constitute an improper second-
guessing of Wellss litigation strategy. As
explained above, Wells understood the
importance of trying to identify the person
who came to Savos mothers door. But when he
could not find the person (despite diligent
effort), Wells concluded that he could
present Savos defense without knowing this
persons identity because (as explained
above) Wells could argue that the States
failure to identify this person showed that
S.W.s story could not be true. Thus, Wells
adopted a litigation strategy that did not
require him to further investigate the
identity of the visitor at the door and that
did not require him to press S.W. to reveal
whatever she knew about this person.
Judge Torrisi did not find that
this litigation strategy was incompetent
and, to the extent that his ruling implies
such a finding, we conclude that the finding
would be clearly erroneous. While a
different attorney might have chosen to
litigate Savos case differently, Wellss
approach to this issue was well within the
acceptable range of competence.
(c) Wellss failure to cross-examine S.W.
concerning the discrepancy in body size between
herself and Savo, and concerning her statement to
the grand jury that Savo had thrown her around
like a rag doll
As explained above, when S.W. testified at
Savos criminal trial, she claimed that Savo had thrown
her around and had overpowered her. Indeed, when S.W.
testified at grand jury, she described herself as being
thrown around like a rag doll. However, as also
explained above, S.W. was a considerably larger person
than Savo; she outweighed him by 100 pounds. (S.W.
weighed 235 pounds compared to Savos 132 pounds.)
When Wells cross-examined S.W., he did not
expressly question her concerning this discrepancy in
body sizes, nor did he confront her with the rag doll
statement from her grand jury testimony. Judge Torrisi
indicated that he believed that Wells made a mistake
(either of tactics or omission) by failing to ask such
questions.
We do not agree. The jury was able to
observe both S.W. and Savo. The hundred-pound
discrepancy in their weights must have been obvious to
the jurors, and it was reasonable for Wells to assume
that, even without express cross-examination on this
point, the jurors would perceive that this difference
in body size was a relevant factor in assessing the
credibility of S.W.s testimony that Savo had thrown her
around and had overpowered her. Indeed, when Wells
presented his summation to the jury, he pointed to the
discrepancy in S.W.s and Savos body size, and he
suggested that it was implausible that Savo could have
overpowered S.W..
Moreover, in the post-conviction relief
proceedings, Wells explained that he wished to minimize
his direct confrontation of S.W. so as to avoid the
appearance that he was browbeating the purported victim
of a sexual assault. Instead, Wells adopted the
strategy of using his cross-examination to get [S.W.]
to commit to [the] set of facts that she had described
[at] the grand jury and in [her] various [pre-trial]
statements, and then showing (through the testimony of
other witnesses) that this set of facts was
inconsistent with the physical evidence.
We conclude that Wellss approach to this
issue was within the range of competence required of
criminal law practitioners.
(d) Wellss purported failure to cross-
examine S.W. concerning her conflicting
accounts of how she arrived at Savos
mothers house on the night / morning of
the assault
S.W. gave conflicting accounts of how she
ended up at Savos mothers house on the night / morning
of the sexual assault.
S.W. consistently asserted that she had been
given a ride to the Dillingham HUD housing, where both
Savos mother and S.W.s friend, Leah Timmerman, resided.
During her sexual assault examination, and in her
initial police interview, S.W. stated that she had
asked the driver to drop her off up the street from
Timmermans apartment. (S.W. said that she wished to
walk a little, apparently because she was feeling sick
from drinking.) In these initial interviews, S.W.
claimed that, while she was walking Savo grabbed her
and took her inside his mothers house.
But at grand jury, S.W. gave a different
account. She testified that her destination that night
was Savos mothers house, because Savo called her up and
asked her to [come] over and see him. According to
S.W.s grand jury testimony, she went to Savos mothers
house and knocked on the door and it was then (when
Savo answered the door) that Savo grabbed her.
At trial, S.W. modified her account again,
combining aspects of her two earlier accounts. S.W.
testified that she spoke to Savo on the telephone
(while she was still at her mothers house), and then
she caught a ride to the HUD housing, where her initial
destination was Leah Timmermans house. S.W. testified
that, while she was at Timmermans house, Savo called
her and asked her to come over to his mothers house.
She then walked over to Savos mothers house to meet
Savo. She knocked on the door, Savo answered, and then
the assault commenced.
When Wells cross-examined S.W., he questioned
her about how she came to be at Savos mothers house,
and he confronted her with her initial account the
version in which Savo grabbed her from off the street
as she was walking to Leah Timmermans house. Moreover,
the nurse who was present during S.W.s sexual assault
examination was called as a witness at Savos trial, and
this nurse confirmed that S.W. had initially given this
inconsistent version of events (the one in which S.W.
claimed that Savo had grabbed her off the street).
In his summation to the jury, Wells reminded
the jury of S.W.s differing accounts of how she arrived
at Savos mothers house, and he used these
inconsistencies as one of his bases for arguing that
S.W.s assertion of rape was not credible.
When Judge Torrisi ruled on Savos petition
for post-conviction relief, he faulted Wells for
failing to explore[ ] the fact that S.W. contradicted
herself about where she was dropped off right before
going to Mr. Savos house. But, as we have just
explained, the record shows that Wells did in fact
point out these contradictions when he cross-examined
S.W., and Wells later used these contradictions when he
argued Savos case to the jury.
Judge Torrisi concluded that, by failing to
make additional efforts to pin down S.W. on the
sequence of events that led to her arrival at Savos
mothers house, Wells incompetently failed to elicit
evidence relevant to why [S.W.] may have gone to Mr.
Savos house and to [why] she sought to have him put in
jail because of what he had done to their relationship.
We do not see how the details under discussion here are
pertinent to these two issues, and Judge Torrisis
ruling contains no further explanation of why he
believed that Wellss handling of this point was
deficient.
We conclude that Wellss cross-examination of
S.W. on this point was within the range of competence
expected of criminal law practitioners.
(e) Wellss failure to cross-examine
S.W. concerning her assertion that she
did not know that Savos mother would not
be home
When S.W. testified at grand jury, the
prosecutor asked her if Savo was the only person
(besides S.W.) who was home at the time of the assault:
Prosecutor: Was [Savo] the only person
that was home at that time?
S.W.: Yeah, ... his mom was out
fishing, and his dad was somewhere in
Dillingham. I have no clue where [the dad]
was, or where his parents were. I know the
mom was fishing, so [Savo] was home alone.
But at Savos trial, S.W. testified that she
thought that other people would be present at
Savos mothers house that night. In
particular, S.W. testified that she believed
that Savos mother would be there.
When Wells cross-examined S.W. at
Savos trial, he did not confront her with her
grand jury testimony on this issue. However,
Wells presented the contradiction to the jury
in another manner: Wells elicited testimony
from Savos mother that she (the mother) had
told S.W. that she would be out of town.
In Savos petition for post-
conviction relief, he argued that Wells made
a critical error by not impeaching S.W. with
her grand jury testimony (i.e., her prior
testimony that she knew that Savos mother
would not be home). Savo argued that, from
the defense viewpoint, it was crucial to show
that S.W. knew that she would be alone with
Savo because this would rebut any
prosecution claim that S.W. would never have
agreed to go to the house unless she thought
that other people would be present to protect
her from Savo. (Recall that Savo was on bail
release at this time, charged with assaulting
S.W. in May.)
In his ruling, Judge Torrisi agreed
with Savo that this cross-examination would
have been relevant on the issue of why [S.W.]
may have gone to Mr. Savos house. But this
was not a disputed issue at Savos trial. The
prosecutor never suggested, during his
summation to the jury (either in opening or
in rebuttal), that S.W. agreed to go to Savos
mothers house only because she thought that
other people would be there to protect her.
In fact, during his rebuttal summation, the
prosecutor explicitly reminded the jurors of
S.W.s testimony that she had been secretly
meeting Savo throughout the summer, and that
she had been having sexual relations with
Savo (assumedly, in private) up until a few
days before the sexual assault even though
both S.W. and Savo knew that one of Savos
conditions of bail prohibited Savo from
having any contact with her.
Judge Torrisi did not explain why
he believed that the omitted cross-
examination had any effect on the outcome of
Savos trial. Even if we construe Judge
Torrisis remarks as an implicit finding that
Savo was prejudiced by Wellss failure to
cross-examine S.W. on this issue, the record
does not support that finding. For the
reasons we have just explained, even if we
assume that Wells made a mistake when he
failed to cross-examine S.W. on this
inconsistency, this mistake was insignificant
in the context of the issues litigated at
Savos trial.
(f) Wellss failure to cross-
examine S.W. concerning S.W.s
potential intoxication on the
night / morning of the sexual
assault
Another purported deficiency in
Wellss performance identified by Judge
Torrisi was Wellss failure to cross-examine
S.W. as to whether she was intoxicated on the
night / morning of the sexual assault. At
grand jury, S.W. testified that she was
feeling sick [around the time she went to
Savos mothers house] from having a couple of
drinks ... earlier that evening. S.W. also
told Officer Varner (the officer who
investigated S.W.s report of rape) that [she]
had partied at [her mothers] house prior to
going to meet Savo. Other witnesses at Savos
trial confirmed that there had been a party
at S.W.s mothers house.
In the post-conviction relief
litigation, Wells explained that he
deliberately chose not to highlight S.W.s
potential intoxication because, when he
presented the case to the mock jury, the
members of the mock jury suggested that [he]
not bring up the alcohol issue because it
would look like Mr. Savo took advantage of an
intoxicated woman.
In his ruling, Judge Torrisi did
not mention Wellss explanation for his
tactical choice, much less find that Wellss
tactical choice was incompetent. Judge
Torrisi merely noted that evidence of S.W.s
potential intoxication was relevant to why
[S.W.] may have gone to Mr. Savos [mothers]
house. But even if we accept Judge Torrisis
premise that the omitted cross-examination
would have been relevant to this issue, this
issue was not actively disputed at Savos
trial (as we explained in the last section of
this opinion).
Moreover, Wells explained that he
had a tactical reason for not raising the
issue of S.W.s potential intoxication. (As
noted earlier, when Wells presented Savos
case to the mock jury, the members of the
mock jury advised Wells not to bring up this
issue because it would look like Mr. Savo
took advantage of an intoxicated woman.)
An attorneys tactical choices are
presumed to be competent.8 In the absence of
affirmative proof that Wellss tactical choice
in this matter was incompetent, it is
irrelevant that Wells chose to forego cross-
examination on an issue that he had
(competently) decided not to raise.
(g) Wellss failure to cross-
examine S.W. concerning the
fact that S.W. had been kicked
out of her mothers house and
was staying with friends
At the time of (and prior to) the
sexual assault in this case, S.W. was living
with her friend Leah Timmerman because S.W.s
mother had kicked her out of the house. The
fact that S.W. was living with Timmerman, and
not with her mother, came out at Savos trial
(both through S.W.s testimony and through her
mothers testimony).
In the post-conviction relief
litigation, Savo claimed that Wells should
have suggested to the jury that this fact
provided a motive for S.W. to invent a tale
of rape. Savo asserted that Wells was
incompetent for failing to argue that S.W.
invented her story of sexual assault for the
purpose of winning the sympathy of family and
friends, so that S.W.s mother would allow her
to come home again, or so that some other
family member or friend would open their door
to S.W..
Wells answered that his strategy
was to suggest a different motive for S.W. to
lie a motive arising from the fact that Savo
was seeing other women. (As noted above,
Wells presented testimony at Savos trial
that, earlier in the summer, S.W. had said to
Savo, Ill put you in jail so [that] you cant
go running ... to your [new] little
girlfriends.)
Judge Torrisi apparently adopted
Savos position that Wells made an incompetent
choice of strategy that any competent
attorney would have argued the motive that
Savo now proposed (S.W.s desire to obtain a
place to live by playing on the sympathy of
family and friends) instead of the motive
that Wells chose to argue (S.W.s desire to
retaliate against Savo for being unfaithful
to her). However, Judge Torrisi did not
explain why he believed this to be so.
There is nothing in the record to
support Judge Torrisis ruling. On the face
of it, the motive that Wells advanced at
trial had much more force than Savos proposed
motive, and there was substantial evidence to
support Wellss argument that S.W. was a woman
scorned who wished to take revenge against
Savo. Judge Torrisis finding that Wellss
choice of tactics was incompetent is clearly
erroneous.
(h) Wellss failure to cross-
examine S.W. concerning the
details of her break-up with
Savo
The final purported flaw that Judge
Torrisi identified in Wellss performance was
Wellss failure to cross-examine S.W.
concerning the details of her break-up with
Savo. The judge concluded that these details
would have been relevant to prove motive to
prove that [S.W.] sought to have [Savo] put
in jail because of what he had done to their
relationship.
During the post-conviction relief
litigation, when Savo suggested that Wells
had been incompetent not to pursue this cross-
examination, Wells answered that [he] did not
bring up the details of the break-up [during
his cross-examination of S.W.] because
numerous witnesses would testify to the rocky
nature of their relationship.
And, in fact, several witnesses
(both for the State and for the defense)
testified that S.W. and Savo had a stormy
relationship. Georgette Wilson and Elizabeth
Morris testified about Savos assault on S.W.
in May 1999 (the assault that led to the no-
contact condition of bail release). Marlene
Beltrane testified to another assault that
occurred in June 1999. Officer Dennis Varner
testified that S.W. told him that, despite
these past assaults, she and Savo continued
to see each other and have sexual relations
until just before the sexual assault in this
case. However, Officer Varner further
testified that, during the sexual assault
examination and interview, S.W. had only one
question for him: How many years is [Savo]
going to get for what he did to us?
In his petition for post-conviction
relief, Savo did not explain what other
details of the relationship or the break-up
he believed Wells should have elicited. And
Judge Torrisi (in his ruling) was similarly
silent on the question of what details Wells
should have brought out during his cross-
examination of S.W.. Moreover, Judge Torrisi
failed to address the question of prejudice.
That is, Judge Torrisi offered no explanation
of how he believed these unspecified omitted
details would have significantly bolstered
Wellss assertion that S.W. was motivated by
revenge to invent a story of rape, or how
these unspecified omitted details could have
been expected to alter the jurys assessment
of Savos case.
In short, the record does not show
that Wellss handling of this issue departed
from the standard of competence expected of
criminal defense attorneys.
(i) The issue of cumulative
incompetence
In his final order in the post-
conviction relief litigation, Judge Torrisi
wrote that the various purported deficiencies
we have discussed here together constitute
ineffective assistance of counsel. The judge
further concluded that there was a reasonable
possibility that these deficiencies, in
combination, contributed to [Savos]
conviction.
But the doctrine of cumulative
error is really a doctrine of cumulative
prejudice. It applies only when real errors
have been identified and the remaining
question is whether these errors, in
combination, were so prejudicial as to
undermine the trustworthiness of the
underlying judgement (even though each error,
taken individually, might not require
reversal).9
When, as in Savos case, all of the
allegations of error or incompetence are
shown to be unfounded, there is no cumulative
error.10
Conclusion
The judgement of the superior court is
REVERSED. Savos conviction is reinstated.
_______________________________
1 Savo v. State, Alaska App. Memorandum Opinion No. 4588
(July 10, 2002), 2002 WL 1467430.
2 See, e.g., Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska
1988).
3 See Aziz v. LeFerve, 830 F.2d 184, 186 (11th Cir. 1987);
Bermudez v. Reid, 733 F.2d 18, 21 (2nd Cir. 1984).
4 See Alaska Professional Conduct Rule 3.4(e); David v.
State, 28 P.3d 309, 312-13 (Alaska App. 2001) (holding that
a prosecutor acted improperly by cross-examining a witness
concerning certain matters when the prosecutor had no
admissible evidence to support the factual predicates of
these questions).
5 Peterson v. State, 988 P.2d 109, 114 (Alaska App. 1999);
see also Steffensen v. State, 837 P.2d 1123, 1126-27 (Alaska
App. 1992).
6 AS 12.72.040.
7 For example, in the spring of 1964, a woman named
Catherine Genovese was murdered outside her home in
Queens (New York); thirty-eight witnesses heard her
cries and yet did nothing to summon help or to save
her. See Mark Gado, A Cry in the Night,
http://www.crimelibrary.com/serial_killers/predators/ki
tty_genovese/ (last visited January 24, 2005).
8 State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
9 See Sivertsen v. State, 963 P.2d 1069, 1073-74 (Alaska
App. 1998).
10Noey v. Bledsoe, 978 P.2d 1264, 1276 (Alaska 1999); State
v. McDonald, 872 P.2d 627, 659 (Alaska App. 1994);
Drumbarger v. State, 716 P.2d 6, 16 (Alaska App. 1986).
