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opinion is published in the Pacific Reporter. Readers
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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. 2044 April 14, 2006 |
| ) | |
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Larry C. Zervos,
Judge.
Appearances: Sharon Barr, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Douglas H. Kossler, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and David W. M rquez,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
We remanded this case to the superior court for
additional findings on two issues relating to Bryants claim of
ineffective assistance of counsel. Bryant raised these issues in
his motion for a new trial that followed his conviction on one
count of sexual abuse of a minor.1
We have reviewed the superior courts additional
findings and affirm the superior courts denial of Bryants motion
for a new trial. Therefore, we affirm Bryants conviction.
We discussed the factual and procedural history of the
case in an earlier opinion2 and will not repeat the facts
summarized there.
The first issue we address is Bryants claim that his
trial attorney was ineffective because he did not call Jim Lewis
to testify as a witness. Bryant claimed that Lewis could testify
to two pieces of information that were pivotal to his defense
(1) that the victims mother reported Bryant was sexually abusing
the victim one month before the allegations were reported to
state troopers, and (2) that the victims mother had told Lewis
she intended to take [Bryant] for everything he had. Bryants
trial attorney did not recall that Lewis would offer this
testimony if called.
On remand, Superior Court Judge Larry C. Zervos
considered the credibility of the witnesses on this disputed
issue and found that Bryant had not met his burden of proof on
the issue of whether Bryants trial attorney knew, or reasonably
should have known, of the potential testimony that Lewis might
provide. Judge Zervoss findings are not clearly erroneous.3
Because Bryant did not meet his burden of proof on this issue,
this claim fails.
Next, we address Bryants remaining claim that his trial
attorneys failure to offer into evidence a certificate Bryant
received in 1969 for completing a course during Navy SEAL4
training about nuclear weapons was ineffective.
Bryant testified at trial. During Bryants direct
examination, Bryants attorney asked Bryant about his military
service. Bryant testified that he had served in the Navy for a
few years in the late 1960s and obtained a top secret clearance
for working with nuclear weapons. He added that the military
gave me my own private nuclear bomb. During cross-examination,
the prosecutor asked Bryant what he meant when you said that they
gave [a nuclear bomb] to you? Bryant said that they didnt
actually give it to me to have, and later, that they didnt give
it to me to keep. There was no further testimony about nuclear
bombs.
During final argument, the subject of nuclear weapons
was not mentioned by either party. The prosecutor said nothing
about Bryants military service. For his part, Bryants attorney
asked the jury to consider Bryants Navy service with the SEALs
and his security clearance when evaluating his credibility. The
prosecutor did not challenge this request because, in rebuttal
closing argument, the prosecutor again said nothing about Bryants
Navy service or security clearance.
Bryant argues that it was incompetent for his trial
attorney not to offer the Navy certificate into evidence in an
attempt to rehabilitate his credibility. On remand, Judge Zervos
concluded that the certificate would not have been admissible
because it was hearsay. Thus, it could not have been incompetent
to fail to offer it. We need not decide whether Judge Zervoss
conclusion on the admissibility of the certificate is correct
because we agree with his conclusion that Bryant was not
prejudiced by the failure of his attorney to offer the
certificate into evidence.
The prosecutors questioning did not imply that Bryant
did not serve in the Navy nor as a SEAL. Nor did the prosecutor
question whether Bryant had a security clearance. Instead, the
prosecutor challenged Bryants assertion that Bryant had his own
private nuclear bomb. Under cross-examination, Bryant qualified
his claim of outright possession, and the prosecutor left the
issue there.
The certificate, if admitted, would have shed no light
on Bryants bomb-possession claim because it merely memorialized
Bryants attendance at a one-week course on nuclear weapons and
said nothing about whether the military issued a bomb to Bryant.
The certificate confirmed that Bryant was in the Navy and did
attend a one-week course at the Nuclear Weapons Training Center
in Norfolk, Virginia. But the prosecutor did not challenge
Bryants service in the Navy or his attendance at any Navy course.
As we pointed out above, the prosecutor never argued
that Bryants credibility was suspect because of his bomb-
possession claim. Instead, the prosecutor attacked Bryants
credibility for reasons entirely unrelated to Bryants Navy
service. We conclude that, even if the certificate had been
introduced, there is no reasonable possibility that Bryants jury
would have reached a different result. Thus, even assuming that
Bryants attorney offered the exhibit and it would have been
admitted, Bryant has not shown that he was prejudiced by the
failure to offer the certificate.5 Therefore, Bryant did not
establish a claim of ineffective assistance of counsel warranting
a new trial.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.434(a)(1).
2 See Bryant v. State, 115 P.3d 1249 (Alaska App. 2005).
3 See Tucker v. State, 892 P.2d 832, 834 (Alaska App. 1995).
4 SEAL is an acronym for Sea, Air, and Land.
5 See Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
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