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Bryant v. State (07/01/2005) ap-1990
Bryant v. State (07/01/2005) ap-1990
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: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
EVERETT E. BRYANT, )
) Court of Appeals No.A-8375
Appellant, ) Trial Court No. 1KE-96-249 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1990 June 24, 2005]
)
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Thomas M. Jahnke
and Larry C. Zervos, Judges.
Appearances: Sharon Barr, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
James L. Hanley, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
Everett E. Bryant was convicted of one count of first-
degree sexual abuse of a minor.1 After the jury returned its
verdict, Bryant moved for a new trial on several grounds,
including claims that he had received ineffective assistance of
counsel. The superior court denied Bryants motion. Bryant
appeals the ruling on the motion for a new trial and several
evidentiary rulings during trial.
We uphold the courts evidentiary rulings. We must
remand the case to the superior court for additional findings
regarding Bryants claim of ineffective assistance.
Background Facts and Proceedings
Bryants first trial ended in a mistrial because the
jury failed to reach a verdict. The jury at Bryants retrial
found Bryant guilty of first-degree sexual abuse of A.M., a five-
year-old girl whose family had resided with Bryant. After the
verdict, Bryant obtained another attorney, and the new attorney
moved for a new trial on several grounds, including claims that
Bryants trial counsel had provided ineffective assistance.
Superior Court Judge Thomas M. Jahnke dismissed several of
Bryants claims of ineffective assistance on the pleadings, but
ruled that an evidentiary hearing was necessary to resolve the
remaining claims.
Judge Jahnke retired before the evidentiary hearing and
Superior Court Judge Larry C. Zervos was assigned to the case.
Judge Zervos declined to reconsider most of the claims that Judge
Jahnke had already dismissed. Judge Zervos rejected Bryants
remaining claims and denied the motion for a new trial.
Did the superior court err in denying Bryants motion to
present evidence that the victims mother had previously
made false claims of sexual abuse?
Before the first trial, Bryant moved to admit character
evidence under Alaska Evidence Rule 404(a)(2). Specifically,
Bryant offered testimony that A.M.s mother, Nancy Wickline, had
previously accused other men of sexually abusing the victim.
Judge Jahnke took Bryants motion under advisement
awaiting proof of the alleged false reports to be presented
outside the jurys presence. Judge Jahnke returned to the issue
several times awaiting Bryants presentation. At one of these
hearings during Bryants first trial, Judge Jahnke advised Bryant
that he had offered only ... some still relatively vague
descriptions of the evidence and that Bryant needed to make a
more specific presentation before Judge Jahnke could rule on the
issue.
The next time the court considered the issue during the
first trial, Bryant explained that he wanted to explore several
allegations at trial: (1) that A.M.s sister, C.W., had accused
her stepfather of sexually abusing her; (2) that Wickline had
once accused a former boyfriends two sons of abusing A.M.; and
(3) that Wickline had told C.W.s stepfather that men in
Virginia, Alabama, and Arkansas had abused C.W. Bryant claimed
that the stepfather would testify that he had not abused C.W. and
that Wickline had recanted her allegations that her former
boyfriends sons had abused A.M. Bryant also stated that he would
like to call Wicklines former boyfriend, but that he could not
locate him.
However, Bryant did not present any testimony from
either the stepfather or Wicklines former boyfriend in support of
his request. Bryant stated that the stepfather was out of state
fishing and could not be contacted. Bryant also stated that the
stepfather had not signed and returned an affidavit that had been
sent to him several weeks previously. Wicklines former boyfriend
had also refused to sign an affidavit that had been sent to him
at a previous address.
Judge Jahnke observed that Bryant had not met his
burden for several reasons. First, Judge Jahnke pointed out that
the evidence would be offered to impeach the credibility of the
victims mother, not the victim. Second, he stated that the
connection between the accusations against Bryant and the earlier
accusations was not readily apparent. Finally, he ruled that the
reports of abuse that Bryant sought to use at trial had not been
proven false in a manner that was more or less unequivocal.
Before the retrial that began over three months after
the mistrial, Judge Jahnke told the parties that unless there was
additional evidence or additional authority he should consider,
the rulings from the first trial would apply. Bryant did not
present additional evidence or offer additional authority
regarding his request to admit evidence of false claims.
On appeal, Bryant argues that Judge Jahnke applied the
wrong standard in ruling that Bryant could not introduce evidence
relating to Wicklines alleged history of falsely reporting that
A.M. had been sexually abused. Specifically, Bryant claims that
Judge Jahnke should have applied the preponderance of the
evidence standard to determine whether Bryant could present
evidence that Wickline had made prior false allegations of abuse.
We review a trial courts evidentiary rulings for an
abuse of discretion.2 A trial court abuses its discretion only
when its decision is clearly untenable or unreasonable.3
In Covington v. State,4 we ruled that a defendant in a
sexual assault case may introduce evidence that the alleged
victim has made prior false accusations if the defendant
establishes the falsity of the prior accusations.5 In Morgan v.
State,6 we clarified Covington by holding that a defendant must
prove the falsity of a prior false accusation of sexual assault
by the preponderance of the evidence.7
Here, Bryants argument fails for several reasons.
First, although Morgan permits a trial judge to admit evidence of
prior false accusations made by an alleged victim in a sexual
assault case, Bryant did not offer prior false accusations by the
victim. Instead, Bryant wanted the court to admit purportedly
false accusations made by the victims mother, Wickline.
We have noted that in a sexual assault prosecution an
alleged sexual assault victims prior false accusation of sexual
assault has a special relevance. This relevance removes such
evidence from the normal ban on attacking a witnesss general
character for honesty through the use of specific instances of
dishonesty.8 But we have not ruled that the same special
relevance applies to prior false accusations of a witness other
than the alleged victim, and Bryant has not cited any authority
for this proposition.
More importantly, even if evidence of Wicklines alleged
prior false reports were admissible, Bryant presented no evidence
supporting his request even though Judge Jahnke clearly indicated
his willingness to hear such evidence out of the jurys presence.
Moreover, Bryant could not actually present the witnesses he
claimed would testify that Wickline had made prior false
accusations. These witnesses were apparently unwilling to
testify voluntarily or impossible to locate and serve with a
subpoena. Therefore, the only support Bryant offered was Bryants
attorneys offer of proof. That is insufficient to satisfy
Bryants burden of establishing, by the preponderance of the
evidence, that Wickline had made prior false allegations of
abuse. Accordingly, we reject Bryants argument.
Did the superior court err in admitting rebuttal
evidence of Bryants character?
Bryant testified at his retrial that he was very
concerned with child welfare, and that the idea of sexually
abusing A.M. was beyond [his] scope. After Bryant had testified,
the State sought to introduce evidence that Bryant had made
inappropriate sexual comments about female children.
Specifically, the State offered testimony that C.W. heard Bryant
comment about her breasts when she was fourteen years old. The
State also wanted to present testimony from Cody Hughes, a former
boyfriend of Wickline, that when Hughes and Bryant drove past
several ten- or twelve-year-old girls, Bryant asked wouldnt you
like to throw your worm out there? The State also offered C.W.s
testimony that Bryant had touched her several times on her
breasts and buttocks. The State argued that this evidence was
relevant to rebut Bryants claim that he would never think about
sexually abusing a child.
Judge Jahnke ruled that the State could present
evidence of the comments Bryant had made about C.W. and the
school-aged girls, but he rejected the States request to present
the testimony that Bryant had touched C.W. Judge Jahnke reasoned
that evidence of the comments was appropriate to rebut the image
... painted in [Bryants] testimony with a very broad brush of
someone ... who is very concerned about the welfare of
children[.] But Judge Jahnke reasoned that evidence of the
touching was less probative because it involved a post-pubescent
female rather than a young girl, and that its probative value was
therefore outweighed by the potential for prejudice. On
appeal, Bryant argues that Judge Jahnke erred in determining that
the evidence was appropriate rebuttal evidence. Specifically,
Bryant claims that he was being charged with molesting a five-
year-old girl, and that he did not discuss any of his feelings
toward pre-teen or teenage girls in his testimony. Bryant argues
that evidence of his sexual comments about ten- to fourteen-year-
old girls was irrelevant.
Alaska Evidence Rule 404(a) provides that evidence of a
persons character or a trait of character is not [generally]
admissible for the purpose of proving that the person acted in
conformity therewith on a particular occasion[.] Alaska Evidence
Rule 404(b)(1) extends this prohibition to evidence of a persons
other crimes, wrongs, or acts [that are solely offered] to prove
the character of a person in order to show that the person acted
in conformity therewith. Therefore, evidence of a persons prior
bad acts, like other forms of character evidence, is not
generally admissible in court if it is offered as illustrative
evidence of the persons character.
But if a defendant introduces evidence of his or her
good character, the prosecution may rebut the evidence of good
character by offering evidence of specific incidents that tend to
rebut the defendants evidence of good character.9
In Bryants case, the State offered evidence that Bryant
had made sexual statements about young girls to rebut Bryants
testimony about his benevolent non-sexual attitude about
children. Bryant testified that he had previously been employed
as a counselor to teenagers who had been victims of sexual abuse.
He also testified that he had volunteered for a number of local
charitable organizations, and that he regularly donated food and
supplies to child care centers. When he was questioned about his
attitude toward children, Bryant stated that children had no
reason not to trust him, and that the idea of sexually touching
A.M. was beyond [his] scope.
In other words, Bryant testified that he was concerned
for and involved with children of all ages (including teens), and
that children in general had no reason to distrust him. Judge
Jahnke ruled that Bryants prior comments about young females were
admissible to rebut Bryants broad claims about his concern for
children. Given Bryants statements about his attitudes toward
children, Judge Jahnke was justified in concluding that the
evidence that Bryant had previously made sexual comments about
ten- to fourteen-year-old girls was admissible as rebuttal
evidence. His decision to admit the evidence did not constitute
an abuse of discretion.
Bryant next argues that the superior court erred
because the evidence was more prejudicial than probative and thus
should have been excluded under Evidence Rule 403. Specifically,
Bryant argues that the evidence had limited probative value
because it related to comments he had made toward teenage and
preteen girls rather than toward girls A.M.s age. Bryant then
argues that the evidence was extremely prejudicial, because it
portrayed him as a sexually obsessed sleazy man.
The record indicates that Judge Jahnke carefully
considered the potential for prejudice associated with the
challenged evidence before he allowed it to be admitted. Judge
Jahnke ruled that the evidence of the comments that Bryant had
made was probative because it rebutted the general image that was
created ... by testimony about Mr. Bryants beliefs about kids ...
an image that was created of everybodys Uncle Everett. Judge
Jahnke also specifically concluded that the probative nature of
the challenged evidence outweighed the potential for prejudice
associated with that evidence. Bryant has failed to demonstrate
that Judge Jahnkes determinations were clearly untenable or
unreasonable.10 We conclude that Judge Jahnkes ruling that the
evidence was admissible was not an abuse of discretion.
Finally, Bryant argues that Judge Jahnke erred in
failing to give the jury a limiting instruction to ameliorate the
effects of the evidence relating to his prior statements. Bryant
claims that this courts decision in Bingaman v. State11 dictates
that such an instruction must be given whenever prior bad acts
evidence is offered against a defendant.
We addressed a similar argument in Inga v. State.12 In
Inga, the defendant argued that the trial court had erred in
failing to issue a limiting instruction after prior bad acts
evidence had been introduced at his trial.13 Noting that Bingaman
had been decided after Ingas trial, and that Inga had failed to
request a limiting instruction from the trial court, this court
ruled that the trial judge had not erred in failing to issue a
limiting instruction at Ingas trial.14
Both of these considerations are also present in
Bryants case. Bryants trial, like Ingas, had been held before
this court issued its opinion in Bingaman. And Bryant, like
Inga, did not request a limiting instruction at trial. We
conclude that Judge Jahnke did not err in failing to issue a
limiting instruction at Bryants trial.
The ineffectiveness claim relating to the failure to
challenge Juror Fulk
During jury selection at the second trial, the parties
conducted voir dire of potential juror Steven Fulk outside the
presence of the panel. Fulk disclosed that he was a good friend
of Trooper Robert Cox, who investigated the case and was one of
the States trial witnesses. Fulk testified that Trooper Cox had
stayed with Fulk and his family while Cox was in Ketchikan for
Bryants first trial and that Trooper Cox was again staying at
Fulks home during Bryants second trial. Fulk also revealed that
he had personal experience in his family with a case of sexual
abuse that appeared to be similar to Bryants, and was cognizant
of the difficulty such cases present. Under questioning from
Bryant, Fulk stated that he would not give extra weight to
Trooper Coxs testimony.
Judge Jahnke asked both parties if either wished to
challenge Fulk for cause. Bryants attorney said that the defense
did not wish to challenge Fulk for cause and the record shows
that Bryant did not exercise a peremptory challenge for Fulk.
The record shows that Bryant and his attorney had
conflicting factual claims on what transpired between them on
whether to challenge Fulk. The attorney indicated that he gave
his clients the final decision on every juror. Consistent with
this practice, the trial attorney maintained that he had given
Bryant the option of whether to challenge Fulk because the
attorney was impressed with Fulks voir dire answers. Bryant
contended that he had told his attorney that he did not want Fulk
to serve on the jury.
In either circumstance, whether the trial attorney
chose not to challenge Fulk or followed Bryants election to not
challenge Fulk, the decision represented a tactical choice on the
part of the trial attorney. To prevail on the claim, Bryant
would have to overcome the strong presumption of competence that
attaches to an attorneys tactical choice.15
Judge Jahnke dismissed Bryants claim that his trial
attorney was ineffective for not removing juror Fulk without
reaching the issue of the attorneys tactical choice. Judge
Jahnke ruled that it was not per se ineffective assistance of
counsel to allow ... a person to serve as a juror who is a friend
and temporary lodging host of the investigating officer of the
case. He continued, [a]t the very least, before a court will
call into question the validity of a conviction by the jury,
there must be a relatively detailed allegation of prejudice.
Judge Jahnke concluded that Bryants motion did not plead any
prejudice, so he dismissed this issue. Bryant asked Judge Zervos
to reconsider Judge Jahnkes ruling, but Judge Zervos refused.
Bryant argues that Judge Jahnke erred in dismissing the
claim that his trial attorney was ineffective for failing to
discharge juror Fulk. Bryant claims that the decision not to
remove Fulk from the jury was incompetent and that no
particularized showing of prejudice is required.
As we noted in Billy v. State,16 a defendant who alleges
ineffective assistance of counsel must do more than present a
mere conclusory or speculative allegation of harm.17 A mere
statement that an attorneys mistakes must have affected the
result is insufficient to meet this burden.18 Here, Bryants only
allegation of prejudice was a statement that [the attorneys
errors] contributed to [his] conviction. Bryant did not allege
how his trial attorneys decision not to challenge Fulk prejudiced
him.
On appeal, Bryant argues that Fulk was obviously biased
because he knew Trooper Cox, and that such bias would necessarily
have prejudiced Bryant. However, we have ruled that a defendant
claiming juror bias must present evidence demonstrating bias. In
Young v. State,19 a defendant asked that a potential juror be
removed for cause because the juror was acquainted with the
investigating officer and had initially expressed doubts about
his ability to view the officers testimony impartially.20 After
questioning by the court, however, the juror stated that he could
take [the officers] testimony and treat it without [consideration
of his] previous contact with [the officer].21 The trial court
refused to excuse the juror for cause. On appeal, Young claimed
the trial court erred by refusing to excuse the juror. We
understood Young to argue that if the trial record contained any
indication of a jurors potential bias, it was an abuse of
discretion to allow the juror to remain unless the record
contained an unequivocal assurance of the jurors impartiality.22
But we rejected Youngs claim, noting that the Alaska Supreme
Court had expressly declined that standard.23
Here, the record shows that juror Fulk testified that
he could be impartial. During voir dire, when asked whether he
would be able to analyze Trooper Coxs testimony fairly, Fulk
stated that he would not give Trooper Coxs testimony any more
weight than that of the other witnesses. Furthermore, Judge
Jahnke admonished both Fulk and Trooper Cox that they were not to
discuss the case. Trooper Cox later stated in a sworn affidavit
that he and Fulk did not discuss the case with one another during
the trial. Bryant did not plead any facts to rebut this
evidence.
As stated above, an ineffective assistance of counsel
claim must include an allegation of prejudice, an allegation that
counsels mistake contributed to the defendants conviction.24
Bryant did not plead any prejudice. Various pleadings filed by
the State over the course of the years that Bryants motion was
pending pointed out the requirement that an ineffective
assistance of counsel claim include an allegation of prejudice.
These pleadings also pointed out that Bryant had not alleged any
prejudice regarding Fulks presence on the jury. Nevertheless,
Bryant did not discuss the States point in any of his pleadings,
or cite any contrary authority.
Now, on appeal, Bryant asserts that [a]llowing a biased
juror to remain on the jury panel violated Mr. Bryants
constitutional rights to an impartial jury. Bryant cites Dyer v.
Calderon25 as support for this assertion. But the majority
opinion in that case concluded that a juror at Dyers trial had
lied when initially answering voir dire questions to ensure that
she was selected for the jury, and again lied when questions
about her impartiality were raised before the penalty phase of
her trial to ensure that she remained on the jury.26 Because this
juror lied repeatedly about matters relating to her
qualifications to serve, the majority presumed that the juror was
biased.27
Bryant did not claim that Fulk lied during voir dire or
concealed any pertinent information about his qualification to
serve. Instead, Bryant argues that Fulks voir dire established
that Fulk was a biased juror. But viewed as a whole, Fulks voir
dire testimony does not establish a record that permits an
appellate court to presume that Fulk was a biased juror.
Bryant also cites Hughes v. United States.28 In Hughes,
the appellant claimed he had received ineffective assistance of
counsel because his attorney did not ask any follow-up questions
or challenge a prospective juror for cause after the juror
testified during voir dire that she did not think that she could
be a fair juror.29 Because the record showed that the juror said
she could not be fair, the majority of the Hughes court presumed
that the juror was biased and found that counsel was objectively
unreasonable for not asking the juror any follow-up questions.30
The majority also concluded that there was a complete lapse by
the trial court ... in carrying out its obligation on voir dire.31
Bryants case contrasts with the record in Hughes.
Bryants attorney, the prosecutor, and Judge Jahnke all questioned
Fulk. Bryants attorney questioned Fulk about his contact with
Trooper Cox and whether he would give Coxs testimony more weight
than other witnesses. After receiving Fulks assurances that he
would not give Coxs testimony any more weight than other
witnesses, and after Fulk had testified that he would decide the
case based on the evidence presented at trial, Bryants attorney
waived any challenge for cause against Fulk.
Finally, Bryant relies on a quote from State v. Miller:32
Actual bias can be shown either by a jurors
own admission or by proof of specific facts
which show the juror has such a prejudice or
connection with the parties at trial that
bias is presumed.[33]
But this quote from Miller is contained in a discussion of what
factors a trial judge must consider when a party challenges a
juror for cause. As we have noted several times already, Bryant
did not challenge Fulk for cause.
Furthermore, Bryants claim begs the question of whether
Fulk was a biased juror. During voir dire, Fulk explained his
connection to Trooper Cox, and the parties and the court explored
his ability to serve on the jury. Under Criminal Rule 24(c), a
party can challenge a prospective juror for any of the enumerated
reasons in Rule 24 including (c)(2), that the juror is biased for
or against a party or attorney. But Bryant did not challenge
Fulk, so the superior court never ruled that Fulk was biased.
Moreover, Bryant alleged no facts to show that Fulk was
a biased juror while litigating the motion for a new trial, nor
did he allege any facts to show that Fulks service on the jury
resulted in an unfair trial. In a separate claim, Bryant did
allege that Fulk had committed misconduct by discussing the case
with Trooper Cox in a courthouse elevator during the trial, but
Judge Zervos rejected that claim after the evidentiary hearing,
finding that the alleged misconduct had never happened. Bryant
has not challenged this ruling. Other than that one misconduct
allegation, Bryant did not claim that Fulk violated any of Judge
Jahnkes admonishments or in any other way engaged in misconduct
during his service as a juror.
Finally, as we just noted, Bryant did not show or
attempt to show that Fulk was unfair or that some other juror
was unfair as a result of Fulks presence on the jury.34 Nor did
Bryant claim that any violation of a jurors duty led to an unfair
trial.35
Bryant has not established that he was prejudiced by
his trial attorneys decision not to challenge Fulk. Therefore,
Judge Jahnke did not err in dismissing Bryants claim that he was
entitled to a new trial because his trial attorney did not
attempt to discharge juror Fulk.
Moreover, Judge Jahnke dismissed Bryants claim on the
ground that Bryant had not pleaded how he was prejudiced by Fulks
jury service. In addition, the record shows that Bryants
attorney elected not to challenge Fulk. When an attorney makes a
tactical choice, a party claiming ineffective assistance of
counsel must plead facts that demonstrate that the tactic was
unreasonable, that is, that the tactic was one that no competent
attorney would use.36
The trial attorneys failure to subpoena Joe Schacher
Bryant next claims that Judge Zervos erred in finding
that his trial attorney had not been ineffective for failing to
subpoena Joe Schacher to testify at the second trial or, in the
alternative, after Schacher failed to appear at the second trial,
to offer Schachers testimony from Bryants first trial at the
second trial.
Judge Zervos found that Bryants trial attorney had not
been ineffective in failing to subpoena Schacher, Bryants great
nephew, to the second trial. Judge Zervos found that Schacher
had appeared to be cooperative with the defense before the second
trial, and that it had not been clear that his testimony would be
necessary. Judge Zervos also found that, once it became obvious
that Schacher might not voluntarily appear, Bryants trial
attorney took competent steps to secure his attendance by issuing
a subpoena and attempting to have it served on Schacher.
In Bryants trial attorneys deposition, the attorney
testified about his failure to subpoena Schacher to testify at
Bryants second trial. The attorney stated that Schacher had been
present to testify at the first trial, and that he had not
anticipated problems in obtaining Schachers testimony for the
second trial. Bryants trial attorney knew that Schacher and
Bryant were close and that Bryant had done several favors for
Schacher. In addition, the trial record indicates that Schacher
had actually been residing in Bryants home until the night before
he was scheduled to testify, and that Bryant had assured his
trial attorney that Schacher would be available for trial. The
trial record also indicates that when Bryants trial attorney
realized that Schacher would not appear for trial as scheduled,
the attorney asked for a continuance, obtained a subpoena, and
employed a process server to attempt to serve Schacher with the
subpoena.
In order to prove that Bryants trial attorney was
ineffective for failing to subpoena Schacher, Bryant must
demonstrate that no reasonably competent attorney would have
performed as his attorney did.37 The evidence indicates that the
attorney had reason to believe that Schacher would voluntarily
appear at trial and that when it became clear that this belief
was mistaken, the attorney attempted to compel Schacher to
testify by serving him with a subpoena. Bryant did not
demonstrate that no competent attorney would have acted as his
trial attorney did. Thus, Judge Zervos did not err when he found
that the trial attorney was not ineffective for failing to
subpoena Schacher to testify at Bryants second trial.
Judge Zervos did not issue a ruling on the second
component of Bryants claim that Bryants trial attorney was
ineffective for failing to offer Schachers testimony at the first
trial into evidence at the second trial. Normally, an appellant
may only appeal issues on which he has obtained an adverse ruling
from the trial court.38 The record reflects that Bryant failed to
request a ruling on the question of whether his trial attorneys
failure to offer Schachers testimony at the second trial
constituted ineffective assistance. Therefore, Bryant has waived
this issue for purposes of appeal.39
The trial attorneys decision not to call Jim Lewis to
testify
Bryant next claims that Judge Zervos erred in rejecting
his claim of ineffective assistance of counsel based on his trial
attorneys decision not to call Jim Lewis as a witness at Bryants
second trial. Bryant claims that Lewis could testify to two
pieces of information that were pivotal to his defense (1) that
Wickline had reported that A.M. alleged that Bryant was sexually
abusing her one month before the allegations were reported to
state troopers and (2) that Wickline had told Lewis that she
intended to take [Bryant] for everything he had.
This issue may turn on a factual dispute that Judge
Zervos did not resolve. Bryant claimed that his attorney knew
the substance of Lewiss testimony that Bryant argues his attorney
should have presented. However, the trial attorney contended in
his deposition that he considered calling Lewis for a limited
purpose, as a rebuttal witness in the event the State offered
evidence about a prior bad act that Bryant had purportedly
molested one of Lewiss daughters while camping. Because the
State did not offer evidence of that purported misconduct, the
trial attorney decided that there was no need to call Lewis. The
attorney did not recall interviewing Lewis about his claim that
Wickline had told him earlier about the abuse and expressed a
plan to ruin Bryant financially.
It is not clear from Judge Zervoss decision whether he
implicitly found that the trial attorney knew of Lewiss testimony
that could potentially impeach Wickline. If Bryants attorney did
not know of Lewiss testimony, then this claim fails. (Bryant did
not allege that his attorney incompetently investigated the
case.)
Even so, Judge Zervos found that the trial attorney had
made a mistake in failing to offer Lewiss testimony because
Lewiss potential testimony would have supported the defense
theory. But it is not apparent from our review of Judge Zervoss
decision what type of mistake Bryants attorney made, because
effective assistance of counsel does not guarantee error-free
representation. In order to constitute ineffective assistance of
counsel, a trial attorneys performance must fall below the nadir
of the range of competence of attorneys of ordinary training and
skill in criminal law.40 This analysis requires a court
considering an incompetence claim to compare the performance of
the trial attorney with the standard of competence the range of
reasonable actions that might be taken by an attorney of ordinary
training and skill in criminal law.41 The findings must also
address how a trial attorney failed to meet that standard of
care, and must discuss the facts that rebut the presumption that
the trial attorneys decisions were grounded in sound tactical
considerations.42 If the defendant convinces the court that the
attorney failed to perform competently, the defendant must
additionally demonstrate that there is at least a reasonable
possibility that the attorneys lack of competency contributed to
the defendants conviction.43
Bryants attorney made the tactical choice not to call
Lewis. To prevail on his ineffective assistance claim, Bryant
must affirmatively rebut the strong presumption of competence
that attaches to an attorneys tactical choices.44 Thus, Bryant
was obliged to plead and to prove that no competent attorney
would have decided not to call Lewis.45
Judge Zervos did not enter specific findings on the
issues of the standard of competence of an attorney of ordinary
training and skill in criminal law and how Bryants attorneys
performance fell below the nadir of that range. Furthermore,
Judge Zervos did not enter findings on what evidence Bryant had
presented that overcame the presumption of competence that
attached to the attorneys decision not to call Lewis.
Although Judge Zervos concluded that it was not
reasonably possible that the trial attorneys failure to call
Lewis as a witness had contributed to Bryants conviction, we
must have Judge Zervoss findings on the first Risher prong to
consider Bryants claim properly. Therefore, we must remand the
case for the findings that we discussed above.
The failure to offer Bryants Navy SEAL Certificate into
evidence
Finally, we address Bryants claim that Judge Zervos
improperly rejected his claim that he had received ineffective
assistance because his trial attorney did not offer in evidence a
certificate indicating that Bryant had gone through Navy SEAL
training. On this issue, Judge Zervos also found that the trial
attorney had made a mistake in failing to offer the certificate.
Judge Zervos did not provide any findings comparing
Bryants trial attorneys performance with the standard of practice
of a competent attorney, nor specify what facts overcome the
presumption of competence that attaches to a trial attorneys
tactical choices.
Judge Zervos did rule that the trial attorneys failure
to offer the certificate had not prejudiced Bryant. Apparently
Judge Zervos thought that the certificate would likely have been
ruled inadmissible hearsay, and even if it had been admitted, the
certificate would have played a very small role in the trial.
Bryant, as the proponent of the certificate, had the
obligation to show that the certificate was admissible. If the
certificate was not admissible, then that resolves the issue,
because it is not ineffective assistance to fail to offer
inadmissible evidence. Because of these potential ambiguities in
Judge Zervoss decision, we must remand the case for additional
findings in order to properly consider Bryants claims.
Conclusion
We affirm the superior courts evidentiary rulings. We
remand the case to the superior court for additional findings on
the ineffective assistance claims we discussed above. The
superior court shall transmit its additional findings within 75
days. When the superior court transmits its findings, the
parties shall have 30 days to submit simultaneous memoranda
addressing those findings. We retain jurisdiction.
MANNHEIMER, Judge, concurring.
I write separately to explain the facts pertaining to
the issue of whether Bryants trial attorney should have
peremptorily challenged Juror Fulk.
As described in the lead opinion, the record shows that
Juror Steven Fulk was a good friend of the main investigating
officer in Bryants case, Trooper Robert Cox. In previous years,
when Cox lived in Ketchikan, the two men attended the same church
and went fishing together. By the time of Bryants trial, Trooper
Cox had been transferred away from Ketchikan, but Cox and Fulk
remained friends. Cox stayed with the Fulk family during Bryants
trial.
Even though Juror Fulk declared that he could set aside
his friendship with Cox, and that he could fairly weigh Coxs
testimony along with the other evidence in the case, Fulks close
friendship with Cox would seemingly counsel any defense attorney
to get rid of Fulk. However, Fulks answers during voir dire also
revealed a reason why he might be considered a favorable juror
for the defense.
During voir dire, Fulk described in an incident in
which a close family member was suspected of sexually abusing
Fulks son. Fulk stated that he still was not sure whether
anything improper had happened, but no prosecution was ever
pursued, and he was still on speaking terms with this family
member. Fulk declared that, based on this incident, he had
learned the lesson that, while children might have a good reason
for complaining about an adults actions, the complaint might
arise from the childs misunderstanding of innocent conduct.
Fulks experience the fact that a member of his own
family had been suspected of sexual abuse, based on an apparent
misunderstanding was a good reason why a defense attorney might
want to keep Fulk on the jury in Bryants case. Thus, the
ultimate decision facing Bryants attorney to challenge Fulk, or
to leave him on the jury rested on weighing Fulks friendship
with Trooper Cox against Fulks prior experience with an unfounded
accusation of sexual abuse against a family member. Faced with
this quandary, a defense attorney could reasonably decide that
the potential benefit of leaving Fulk on the jury outweighed the
risk stemming from Fulks friendship with the trooper.
_______________________________
1 AS 11.41.434(a)(1).
2 See Hoffman v. State, 950 P.2d 141, 146 (Alaska App.
1997).
3 Heath v. State, 849 P.2d 786, 788 (Alaska App. 1993)
(citations omitted).
4 703 P.2d 436 (Alaska App. 1985).
5 Id. at 442.
6 54 P.3d 332 (Alaska App. 2002).
7 Id. at 339.
8 Id. at 336.
9 Salud v. State, 630 P.2d 1008, 1011 (Alaska App. 1981).
10 See Heath, 849 P.2d at 788.
11 76 P.3d 398, 416-17 (Alaska App. 2003).
12 Alaska App. Memorandum Opinion and Judgment No. 4846 at 6-
7 (Mar. 31, 2004), 2004 WL 719626 at *3-4.
13 Id. at 6, 2004 WL 719626 at *3.
14 Id. at 6-7, 2004 WL 719626 at *3-4.
15 See Tall v. State, 25 P.3d 704, 708 (Alaska App. 2001).
16 5 P.3d 888, 889 (Alaska App. 2000).
17 Id. at 889 (quotation omitted).
18 Id.
19 848 P.2d 267 (Alaska App. 1993).
20 Id. at 268-69.
21 Id. at 269.
22 Id. at 270.
23 Id., quoting Sirotiak v. H.C. Price Co., 758 P.2d 1271,
1277 (Alaska 1988).
24 State v. Jones, 759 P.2d 558, 572-73 (Alaska App. 1988).
25 151 F.3d 970 (9th Cir. 1998).
26 Id. at 979.
27 Id. at 983.
28 258 F.3d 453 (6th Cir. 2001).
29 Id. at 456-57.
30 Id. at 462.
31 Id. at 464.
32 476 S.E.2d 535 (W. Va. 1996).
33 Id. at 552.
34 See Hammock v. State, 52 P.3d 746, 750 (Alaska App.
2002); Minch v. State, 934 P.2d 764, 769 (Alaska App. 1997).
35 See West v. State, 409 P.2d 847, 852 (Alaska 1966).
36 See State v. Laraby, 842 P.2d 1275, 1279 (Alaska App.
1992).
37 See Jones, 759 P.2d 568.
38 See, e.g., Mahan v. State, 51 P.3d 962, 966 (Alaska App.
2002).
39 See id.
40 See Risher v. State, 523 P.2d 421, 424 (Alaska 1974).
41 See State v. Zeciri, 43 P.3d 169, 171 (Alaska App. 2002).
42 Id.
43 See Risher, 523 P.2d at 425.
44 See Jones, 759 P.2d at 569-70.
45 See Tucker v. State, 892 P.2d 832, 835 (Alaska App.
1995).
