|
You can of the Alaska Court of Appeals opinions.
|
|
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
CHRISTOPHER LINDEMAN, )
) Court of Appeals No. A-10254/10283
Appellant/Cross-Appellee, ) Trial Court No. 3AN-02-4751 CI
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee/Cross-Appellant. )
) No. 2292 - January 7, 2011
Appeal from the Superior Court, Third Judicial District,
Anchorage, Patrick J. McKay, Judge.
Appearances: Colleen A. Libbey, Libbey Law Offices, LLC,
Anchorage, for the Appellant. Diane L. Wendlandt, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Daniel S. Sullivan, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
BOLGER, Judge.
Both parties appeal from rulings on Christopher Lindeman's application for
post-conviction relief from his conviction for second-degree murder. The State argues
that Superior Court Judge Patrick J. McKay failed to make sufficient findings to justify
the conclusion that Lindeman received ineffective assistance from the attorney who
----------------------- Page 2-----------------------
handled the appeal from Lindeman's conviction. We conclude that the court made
sufficient findings on this issue, and that there is a reasonable possibility that Lindeman
would have prevailed on appeal if he had attacked the jury instruction on his duty to
protect the victim.
Lindeman argues that his trial attorney was ineffective for his delay in
obtaining DNA testing, for his incomplete response to the State's request for this jury
instruction, for his failure to employ a neuropathologist, and for his conduct at the
sentencing hearing. Lindeman also argues that new results from DNA testing and
evidence of juror misconduct require a new trial. We agree with Judge McKay's
conclusion that Lindeman failed to raise material issues requiring a hearing on these
claims.
Background
Lindeman was found calling for help in an internal stairwell outside his
apartment; his roommate, Amos Gordon Rossman, was found beaten and dead in the
bathroom. Lindeman gave two statements in which he claimed innocence and alleged
that he and Rossman had been on an extended drinking binge and were beaten by
skinheads on the way back to Lindeman's apartment. The coroner determined that
Rossman's blood alcohol level was .442%.
The trial jury convicted Lindeman of second-degree murder. Lindeman
appealed his conviction and this court affirmed.1 In January 2002, Lindeman filed a pro
se application for post-conviction relief, which was amended after he secured counsel.
1 Lindeman v. State, Mem. Op. & J. No. 4356, 2001 WL 219747, at *1, *6 (Alaska
App. Mar. 7, 2001).
2 2292
----------------------- Page 3-----------------------
In March 2007, Judge McKay granted the State's motion to dismiss the
application. But the judge later granted Lindeman's motion for reconsideration of his
claim regarding ineffective assistance of appellate counsel. After conducting a hearing
on the claim, Judge McKay ruled that appellate counsel was ineffective and granted
Lindeman a new merit appeal.
Lindeman appeals from Judge McKay's order granting the State's motion
to dismiss Lindeman's remaining claims. The judge relied on considerable material
outside the application for post-conviction relief when he granted the State's motion, so
we will review his ruling as an order granting summary judgment.2 A court may grant
summary judgment on an application for post-conviction relief if "there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law."3
We review this type of order de novo, viewing the evidence and all reasonable inferences
in the light most favorable to the non-moving party.4
The State cross-appeals Judge McKay's order granting Lindeman's
application on the issue of ineffective assistance of appellate counsel. On this issue, we
accept the trial court's findings of fact unless they are clearly erroneous, and we review
the trial court's conclusions of law de novo.5
2 See Phillips v. Gieringer, 108 P.3d 889, 892-93 (Alaska 2005) (holding under the
similar provisions of Alaska Civil Rule 12(b) that if the court does not exclude materials
outside of the pleadings when deciding a motion to dismiss, the motion is treated as a motion
for summary judgment).
3 Alaska R. Crim. P. 35.1(f)(3).
4 Beilgard v. State, 896 P.2d 230, 233 (Alaska 1995).
5 See Tucker v. State, 892 P.2d 832, 834 (Alaska App. 1995).
3 2292
----------------------- Page 4-----------------------
The DNA Evidence
Performance of trial counsel
Lindeman argues that his trial counsel was ineffective for failing to obtain
DNA testing of the blood evidence from the crime scene. The trial attorney did obtain
favorable test results of a towel and a t-shirt just prior to trial and a favorable test result
of the alleged murder weapon during trial. According to Lindeman, however, these
efforts were untimely.
The State's case was largely based on blood found throughout Lindeman's
apartment. Rossman was found dead in Lindeman's bathroom in a pool of blood. Blood
stains were found throughout the apartment and on the alleged murder weapon, a
seventeen-pound dumbbell. Blood was also found on Lindeman's t-shirt and a towel,
which were in a washing machine. There were cast-off stains on the ceiling. The State
argued that this evidence suggested that Lindeman struck Rossman with the dumbbell
in the living room and then dragged him to the bathroom to make it look like he fell and
struck his head.
Lindeman maintained his innocence throughout the investigation and trial.
In two statements given to police, he alleged that he and Rossman had been beaten by
skinheads on their way back to Lindeman's apartment. Lindeman alleged that he had
suffered a nosebleed in the fight. He also said that Rossman had been sitting in the
recliner, but that he then assisted him to the bathroom. He later heard Rossman fall and
found him lying on the floor. Lindeman stated that he (Lindeman) was blacking out after
they returned to his apartment.
Lindeman's trial attorney received discovery information indicating that a
detective put in a lab request for DNA testing of the evidence in October 1997. In June
1998, the trial attorney wrote to the State to inquire about the testing, but received no
4 2292
----------------------- Page 5-----------------------
reply. On July 17, the prosecutor notified Lindeman's trial attorney that the State was
not going to conduct blood testing. The trial attorney then decided to test some of the
items most likely to contain Lindeman's blood. A few days before trial, the trial attorney
received results indicating that Lindeman's own blood was on his t-shirt and a towel
found in the apartment. The trial attorney then made a motion for a continuance so that
he could test the dumbbell and several other items he felt should have been tested.
At the hearing on the motion for a continuance, the trial attorney argued
that he would not be able to provide effective assistance if he proceeded to trial without
the DNA evidence. The trial court denied his motion. But the attorney did secure and
present DNA testing showing that the blood on the dumbbell was Lindeman's blood.
In his application for post-conviction relief, Lindeman argued that the trial
attorney had been ineffective for failing to obtain the DNA evidence. According to
Lindeman, his trial attorney failed to seek testing in a timely matter: he did not follow
up on the tests ordered in October 1997 until June 1998, did not receive an answer until
July 1998, and then waited an additional month before seeking testing.
In his affidavit, Lindeman's trial attorney explained that, through discovery,
he received a police request for the blood testing, and that he "certainly wanted to know
how the blood testing came out before trial." When prompted by a retained crime scene
technician, he asked the State about the results. And when the State informed him that
it would not be conducting the tests, he was left with a tactical choice: do nothing and
argue the deficiency of the State's case, or do the testing. After mulling it over, he
decided to approach the matter conservatively and test the two items most likely to
contain Lindeman's blood. When those results confirmed that Lindeman had been an
active source of bleeding, he made the motion for a continuance to test the dumbbell and
5 2292
----------------------- Page 6-----------------------
other items. The trial attorney concluded that he had been ineffective for his failure to
order a more timely and comprehensive DNA identification of the blood samples.
"When a defendant claims that he has been prejudiced by ineffective
assistance of counsel, the defendant must show that his counsel did not perform 'as well
as a lawyer with ordinary training and skill in ... criminal law.'"6 We apply "a strong
presumption of competence" and a "presumption that trial counsel's actions were
motivated by sound tactical considerations."7
"In the absence of evidence ruling out the possibility of a tactical reason to
explain counsel's conduct, the presumption of competence remains unrebutted and
operates to preclude a finding of ineffective assistance."8 That is, "[i]f the record does
not adequately reveal the basis for the attorney's decision, then the accused has failed to
establish a case for post-conviction relief."9
In his order dismissing Lindeman's post-conviction relief petition, Judge
McKay concluded that the trial attorney's decisions were tactical. He explained that
although the State's delay may have inconvenienced Lindeman, there was no evidence
that the trial attorney acted incompetently: the trial attorney acted once his theory was
formed and his decision to wait until that juncture to seek further testing was a
reasonable tactical decision. According to Judge McKay, the trial attorney's actions
6 Smith v. State, 185 P.3d 767, 768 (Alaska App. 2008) (quoting State v. Jones, 759
P.2d 558, 567 (Alaska App. 1988)).
7 Jones, 759 P.2d at 569.
8 Id .
9 Smith, 185 P.3d at 768.
6 2292
----------------------- Page 7-----------------------
were "within the range of reasonable actions which might have been taken by an attorney
skilled in criminal law."10
We reviewed a similar tactical decision in Osborne v. State (Osborne I ).11
In Osborne, the State used DNA testing on a condom at the scene of a rape.12 The
State's testing was imprecise, showing only that approximately sixteen percent of the
African-American population matched the DNA from this sample.13 The defense
attorney chose not to seek more precise testing in order to avoid a test result that could
confirm her client's guilt.14 We held that the defense attorney made a legitimate tactical
decision to avoid a more precise DNA test.15
Here, the only contested issue is whether the trial attorney's delay in
obtaining DNA testing was tactical. The trial court found the decision was tactical
because the trial attorney initially waited until he could review the results of the State's
testing. Once the State informed the trial attorney it was not going to test the blood, he
made the tactical decision to test the two items most likely to contain Lindeman's blood.
Then after the trial attorney received results showing Lindeman's blood on these two
10 See generally Risher v. State, 523 P.2d 421, 425 (Alaska 1974) (holding that, if a
defendant proves that their attorney failed to act with the minimum level of competence
expected of criminal law practitioners, the defendant is entitled to relief if the defendant can
additionally demonstrate "a reasonable doubt that the [attorney's] incompetence contributed
to the outcome").
11 110 P.3d 986 (Alaska App. 2005).
12 Id. at 989.
13 Id.
14 Id. at 991-92.
15 Id. at 992.
7 2292
----------------------- Page 8-----------------------
items, he made another tactical decision to test the alleged murder weapon. We conclude
that Lindeman failed to raise any material issues suggesting that the trial attorney's
decisions regarding the DNA testing were ineffective.
Newly discovered evidence claim
Lindeman also argues that he is entitled to a new trial under Criminal Rule
35.1 because of new evidence in the form of additional DNA tests performed after his
trial. An applicant who seeks post-conviction relief based on newly discovered evidence
must meet the same burden as a defendant who brings a motion for a new trial on the
same ground.16 The applicant must show that the proposed new evidence is newly
discovered and would probably produce an acquittal.17
Lindeman alleges that he has new DNA tests of blood from the crime scene
indicating that Lindeman's blood was found throughout the apartment, which refutes the
State's theory that it was all Rossman's blood. But these DNA tests are not "new
evidence" because they were based on evidence available at trial.18 Lindeman is not
entitled to a new trial because the evidence is not "new evidence" that would entitle
Lindeman to post-conviction relief.
Request for additional testing
Lindeman also argues that he is entitled to additional DNA testing. On
appeal, Lindeman does not identify what additional tests he wishes performed, but in his
16 Lewis v. State, 901 P.2d 449-50 (Alaska App. 1995).
17 Id. at 450.
18 Osborne v. State (Osborne II), 163 P.3d 973, 984 (Alaska App. 2007).
8 2292
----------------------- Page 9-----------------------
post-conviction relief application he requested supplemental testing of certain ceiling
stains, floor stains, and various objects at the crime scene. Lindeman argues that the
testing should be granted under this court's opinion in Osborne I.
In Osborne I, we adopted a three-part test to determine whether a court
should order additional DNA testing: "(1) that the conviction rested primarily on
eyewitness identification evidence, (2) that there was a demonstrable doubt concerning
the defendant's identification as the perpetrator, and (3) that scientific testing would
likely be conclusive on this issue."19
The first requirement for additional testing under Osborne I is that the
conviction rested primarily on eyewitness identification.20 Lindeman recognizes that
eyewitness identification is not at issue in his case, but he argues that he should be
granted additional testing because the case against him was based entirely on
circumstantial evidence. However, Lindeman provides no support for his argument that
the rule should be expanded to include convictions other than those based on eyewitness
testimony.
The second requirement is that there was a demonstrable doubt about the
defendant's identification as the perpetrator.21 Although Lindeman argued that both he
and Rossman were attacked by skinheads on their way home, his case does not satisfy
this requirement. There is no contention that there were any other individuals in the
apartment other than Rossman and Lindeman. The only question about the DNA
evidence in the apartment is whether the various blood stains in the apartment belonged
19 110 P.3d at 995.
20 Id.
21 Id.
9 2292
----------------------- Page 10-----------------------
to Rossman or Lindeman. Lindeman does not argue that DNA testing would identify
some other perpetrator.
The third requirement is that the additional testing must conclusively
establish whether the defendant was the perpetrator.22 Although favorable test results
may significantly buttress Lindeman's case, they would not be conclusive. Even
assuming that testing all of the blood stains yielded only Lindeman's DNA, there would
remain substantial circumstantial evidence of Lindeman's guilt.
Lindeman's request for additional DNA testing fails on all three prongs of
the Osborne I test.
The Special Duty Jury Instruction
At grand jury, the State relied on the theory that Lindeman killed Rossman
by bludgeoning him with a dumbbell. However, well into trial, Lindeman received and
presented DNA test results indicating that the blood on the dumbbell was Lindeman's
and not Rossman's.
During deliberations, the jury asked the trial court if it could "consider the
possibility that other objects observed in the photographic evidence could have been
used as assault weapons." The trial court answered in the affirmative. Six days later, the
jury reported that it was "unable to reach a unanimous decision on the charge[s] of
murder in the first degree [and] ... tampering with physical evidence." The court
summoned the jury, discussed the problem, and then sent the jurors back to clarify their
status. The jury then sent a note requesting the "procedure for considering lesser
charges," and the judge reread the appropriate instruction.
22 Id.
10 2292
----------------------- Page 11-----------------------
Later the jury asked, "Does the phrase 'knowingly engaged in conduct' in
... instruction #17 include failing to take action?" Instruction 17 provided the elements
for second-degree extreme-indifference murder.23 The judge then gave the jury
Supplemental Instruction #1:
"Conduct" means an act or omission and its
accompanying mental state.
For purposes of "knowingly engaging in conduct
under circumstances manifesting extreme indifference to the
value of human life" the law requires that a criminal
defendant knowingly perform an act and that the defendant
be reckless as to the surrounding circumstances ("under
circumstances manifesting extreme indifference to the value
of human life") and the result (the death of another). The
definitions of knowingly and recklessly are contained in
[your] prior instructions.
In general, the law imposes no affirmative duty on a
defendant to protect a victim from danger. Thus, the failure
to take action generally cannot give rise to criminal liability.
However, if a defendant performs an act or acts that endanger
a person or create a situation of danger to another person, you
may consider a defendant's "failure to take action" to prevent
harm to the victim in determining whether the defendant's
conduct gives rise to criminal liability.
The jury then acquitted Lindeman of first-degree murder and convicted him of second-
degree murder.
Performance of trial counsel
Lindeman argues that his trial attorney was ineffective for failing to raise
additional objections to this supplemental jury instruction. However, Lindeman did not
23 See AS 11.41.110(a)(2).
11 2292
----------------------- Page 12-----------------------
advance the theory that his trial attorney was ineffective for this reason until his motion
for reconsideration of the dismissal of the application. Ordinarily, a court has "no
obligation to consider an issue raised for the first time in a motion for reconsideration."24
Moreover, Lindeman's pleadings in the trial court are inconsistent with this
claim. He initially praised his trial attorney's objections to the instruction and his efforts
to contain the resulting prejudice. And when he responded to the State's motion to
dismiss, Lindeman did not note the existence of this claim. Lindeman did not present a
prima facie case of ineffectiveness on this issue because it was not presented to the trial
court in a timely manner.
Performance of appellate counsel
In his amended application for post-conviction relief, Lindeman alleged that
his appellate counsel was ineffective for failing to argue that the supplemental instruction
was erroneous. Following a hearing on that claim, Judge McKay concluded that
appellate counsel had been ineffective. In its cross-appeal, the State argues that Judge
McKay's findings did not support his grant of post-conviction relief and that an appeal
of the instruction would not have been successful.
In order "[t]o establish a prima facie case that an appellate counsel's choice
of issues was incompetent, the defendant must establish (1) that the proposed additional
issue is significantly stronger than the issues that were raised in the appeal; (2) that the
appellate attorney had no valid tactical reason for failing to include this particular issue;
and (3) that, if the proposed issue had been included, there is a reasonable possibility that
24 J.L.P. v. V.L.A., 30 P.3d 590, 597 n.28 (Alaska 2001); see also DeNardo v. GCI
Commc'n Corp., 983 P.2d 1288, 1290 (Alaska 1999) ("Issues raised for the first time in a
motion for reconsideration are untimely.").
12 2292
----------------------- Page 13-----------------------
the outcome of the appeal would have been different."25 On appeal, the State challenges
the third factor, specifically arguing that Judge McKay failed to make a sufficient finding
that there was a reasonable possibility that the appeal would have been successful had
appellate counsel challenged this instruction.
But Judge McKay's written order stated that "there is a reasonable
possibility that the outcome of the appeal would [have been] different" if Lindeman's
attorney had raised this issue on appeal. The judge also found that "[t]here is a
reasonable argument that the timing of the instruction created a fatal variance [from] the
grand jury indictment," and that "[e]ven if viewed as a 'mere variance' [from] the grand
jury indictment, it is arguable that the supplemental instruction sufficiently prejudiced
[Lindeman] such that it constitutes reversible error." We conclude that Judge McKay
did make sufficiently clear findings that there was a reasonable possibility that the
argument on this supplemental instruction would have succeeded if it was raised on
appeal.
We also conclude that Judge McKay's conclusions regarding this issue
were correct. There is a reasonably promising argument that the supplemental jury
instruction constituted a constructive amendment of Lindeman's murder charge. A
constructive amendment occurs when the defendant is convicted of a charge based on
evidence that is materially different than the evidence that supported the grand jury
indictment.26
In Michael v. State, the defendant was charged with assault in the first
degree under an extreme indifference theory: the indictment alleged that Michael had
25 Coffman v. State, 172 P.3d 804, 813 (Alaska App. 2007).
26 See Michael v. State (Michael II), 805 P.2d 371, 373 (Alaska 1991) (quoting 2 Wayne
R. LaFave & Jerold H. Israel, Criminal Procedure § 19.2(h), at 469-70 (1984)).
13 2292
----------------------- Page 14-----------------------
caused serious physical injury to his daughter under circumstances manifesting extreme
indifference to the value of human life, by fracturing her bones.27 But the trial judge
found Michael guilty under the theory that Michael had, through inaction, violated his
special duty as a parent to take affirmative action to protect his child from assaults
committed by his wife.28 The supreme court held that this constituted a fatal amendment
from the original indictment, requiring Michael's conviction to be reversed.29
In this case, Lindeman was charged with first-degree murder in an
indictment alleging that Lindeman assaulted Rossman intending to cause his death. The
trial jury was instructed that they could find Lindeman guilty of the lesser included
offense of second-degree murder on an extreme indifference theory if the State proved
that Lindeman caused Rossman's death under circumstances manifesting extreme
indifference to the value of human life.
The supplemental instruction explaining the second-degree murder charge
made a change in this extreme-indifference charge that was similar to the change that
supported the verdict in theMichael case. The supplemental instruction told the jury that
they could find Lindeman guilty under a theory that through inaction he violated a
special duty owed to Rossman - the duty requiring a person who places another person
in danger to take affirmative action to protect the other person from harm.30 Lindeman
27 Id. at 372.
28 Michael v. State (Michael I), 767 P.2d 193, 196-97 (Alaska App. 1988), rev'd, 805
P.2d 371 (Alaska 1991).
29 Michael II, 805 P.2d at 374.
30 See 1 Wayne R. LaFave, Substantive Criminal Law § 6.2(a)(5), at 441-42 (2d ed.
2003).
14 2292
----------------------- Page 15-----------------------
has a reasonable argument that this variance was the same type of fatal variance that
required a reversal in Michael.
We also agree with Judge McKay that there is a reasonable argument that
the timing of the supplemental instruction caused Lindeman unfair prejudice. Lindeman
was entitled to make his arguments to the jury based on the intentional first-degree
murder charge that the State had pursued during the trial and the lesser charges that were
necessarily included.31 There is a reasonable argument that it was unfairly prejudicial to
give the jury an instruction on a new theory of the case during deliberations, after
Lindeman had lost the opportunity to present any evidence or arguments on that theory.32
In other words, Lindeman had another argument with a reasonable possibility of success:
the argument that he was unfairly prejudiced by the supplemental instruction because he
did not have a fair opportunity to argue against the charge that he failed to render aid.
We agree with Judge McKay's decision that Lindeman is entitled to reopen
the appeal from his conviction based on the ineffective assistance of his appellate
counsel.
31 See generally Rollins v. State, 757 P.2d 601, 602-03 (Alaska App. 1988) (indicating
the defendant was entitled to "make his jury argument on the assumption that the lesser-
included offense would not be submitted to the jury").
32 See generally Bowers v. State, 2 P.3d 1215, 1219-21 (Alaska 2000) (concluding the
decision to give the jury an instruction on a new theory of the case during deliberations
"created a strong likelihood of prejudice").
15 2292
----------------------- Page 16-----------------------
Other Issues
Juror misconduct
Lindeman also argues that he is entitled to a new trial because of juror
misconduct. Lindeman argues that juror Evan Phillips failed to disclose his relationship
to an individual on the witness list and that his failure to disclose the relationship
prejudiced his case. The State responds that the trial court correctly rejected the
argument because Lindeman failed to show that he would have challenged the juror had
the juror disclosed the relationship, the alleged misconduct did not involve material
matters, and Lindeman did not establish prejudice.
At the start of voir dire, Judge Card had the assistant district attorney read
the names of the anticipated witnesses to the jury. Scott Weeks's name was read from
the list. Judge Card asked the prospective jurors if they were related to or knew any of
the parties or witnesses involved in the case, and Phillips did not respond that he knew
Weeks. On individual voir dire, Phillips did disclose that he was a recovering alcoholic,
but he was not questioned about his involvement in recovery programs.
Lindeman's claim is based on information he obtained after the trial.
Lindeman submitted an affidavit of Galen Huntsman, an acquaintance of Lindeman's,
in which Huntsman stated that he was present in court for one day during Lindeman's
trial and that he recognized Evan Phillips, one of the jurors. Huntsman talked to
Lindeman after the trial and informed him that Huntsman "knew positively that Evan
Phillips knew Scott Weeks," an individual listed on the witness list. Huntsman alleged
that he, Phillips, and Weeks were involved in the same alcohol recovery programs. In
his affidavit in support of this claim, Lindeman stated he "would certainly not have
accepted [Phillips] as a juror if [he] had known [Phillips] was acquainted with some of
the people [he] was accusing."
16 2292
----------------------- Page 17-----------------------
Generally, a "verdict should stand unless the evidence clearly establishes
a serious violation of the juror's duty and deprives a party of a fair trial."33 A party may
show a serious violation of a juror's duty by establishing serious misconduct such as
fraud, bribery, or forcible coercion.34 A party may show that such a violation deprives
them of a fair trial by addressing three factors: (1) whether the juror would have been
challenged for cause had the juror disclosed the relevant information; (2) whether the
misconduct went to a collateral or material issue; and (3) whether the probable effect of
the misconduct was prejudicial.35
Judge McKay found that none of the three prejudice factors were present:
the trial attorney did not state in his affidavit that he would have challenged Phillips had
he known that he was acquainted with Weeks; there was no evidence that Phillips made
any improper comments on any material issue; and there was no evidence that Lindeman
was denied a fair trial.
We agree with Judge McKay's conclusions. In particular, we note that
Lindeman's allegations indicated that the references to Weeks during Lindeman's trial
were insignificant. Although Weeks was on the prosecution's witness list, he never
testified at the trial. The only references to Weeks were in Lindeman's interviews with
the police. Lindeman alleged that in his first interview, he identified Weeks as a
"skinhead" who knew some of Rossman's "skinhead" assailants. Lindeman also alleged
that he stated that Weeks might know where Rossman's assailants lived. Even if
33 West v. State, 409 P.2d 847, 852 (Alaska 1966); see also Swain v. State, 817 P.2d 927,
930-31 (Alaska App. 1991); Fickes v. Petrolane-Alaska Gas Serv., Inc., 628 P.2d 908, 910
(Alaska 1981).
34 Swain, 817 P.2d at 930 (quoting Fickes, 628 P.2d at 910).
35 Id . at 931.
17 2292
----------------------- Page 18-----------------------
Lindeman had established that juror Phillips knew Weeks, these references were
insufficient to suggest that Lindeman suffered any prejudice at his trial.
Medical expert
Lindeman argues that his trial attorney was ineffective for failing to obtain
additional expert services. He argues that because the medical issues in his case were
complex, trial counsel should have called a neuropathologist to counter the State's
experts. Lindeman claims that although Rossman's cause of death (cerebral edema) was
consistent with either his extreme intoxication or a traumatic injury, further technical
analysis by a neuropathologist could have ruled out trauma as the cause of death.
Lindeman's claim is based on a post-trial report he obtained from a neuropathologist, Dr.
Jan Leestma.
We reject this claim for several reasons. First, the trial court never
addressed this issue in its decision, and it is unclear if the court was aware that Lindeman
was alleging this claim in his petition. The first time the issue appeared was in
Lindeman's response to the State's motion to dismiss his petition for post-conviction
relief.
Second, a petitioner must submit an affidavit from counsel addressing
claims of ineffectiveness.36 Here, Lindeman has submitted two affidavits from his trial
attorney, but neither mentions additional experts or the neuropathologist's report.
Third, there is no evidence that the trial attorney's choice in experts was not
a tactical decision.37 This is largely because the attorney's affidavits do not address his
36 Allen v. State , 153 P.3d 1019, 1021-22 (Alaska App. 2007).
37 See State v. Steffensen, 902 P.2d 340, 341 (Alaska App. 1995) (explaining that to
show ineffective assistance, a defendant must show that there was no valid tactical reason
18 2292
----------------------- Page 19-----------------------
choice of experts. The trial attorney retained a forensic pathologist, Dr. Janice Ophoven,
who examined the medical evidence and testified at trial. It is not clear why the trial
attorney chose one expert over another. Even assuming the claim was properly raised,
Lindeman presented insufficient evidence to establish a prima facie case of
ineffectiveness.
Lindeman also argues that he is entitled to a new trial under Criminal Rule
35.1 based on Dr. Leestma's report. Dr. Leestma's report contradicted the State's
witness and indicated that Rossman had sustained numerous injuries many hours before
his death, which arguably supports Lindeman's claim that he and Rossman were attacked
outside of the apartment. The report was composed from Dr. Leestma's review of the
autopsy report, records from the medical examiner's office, transcripts of the medical
examiner's testimony at grand jury and trial, transcripts of Dr. Ophoven's testimony,
transcripts of Lindeman's statements, photographs of the death scene and of Rossman's
body, and Anchorage police documents and reports.
Again, this report is not "new evidence" because it is based on evidence
available at trial.38 Lindeman does not argue that Dr. Leestma's report used any models,
techniques, or methodology not available at the time of trial. Dr. Leestma's report was
composed from trial evidence and testimony. Lindeman is not entitled to a new trial
because the evidence is not "new evidence" that would entitle Lindeman to post-
conviction relief.
underlying the attorney's decision).
38 Osborne II, 163 P.3d at 984.
19 2292
----------------------- Page 20-----------------------
Sentencing issues
Next, Lindeman argues that his trial attorney was ineffective in the way he
addressed certain sentencing issues. He argues that his trial attorney failed to object to
the sentence as an unwarranted departure from the Page benchmark.39 He also argues
that his trial attorney was ineffective for conceding certain facts and not objecting to the
sentencing court's findings under Apprendi and Blakely.40
The trial court did not rule on this issue. Lindeman initially argued that his
sentence violated Apprendi and Blakely, but the first time he presented any substantive
argument that his trial attorney was ineffective at sentencing was in his response to the
State's motion to dismiss. His trial attorney did not address this claim in either of his two
affidavits.
Absent a statement from the trial attorney to the contrary, his general
arguments at sentencing appear to be the result of a tactical choice.41 Although the trial
attorney conceded that Lindeman had a role in Rossman's death, he argued that
Lindeman was too drunk to form the intent to kill, that the evidence suggested mutual
combat, and that Lindeman had shown great remorse. It seems likely that the trial
39 See Page v. State, 657 P.2d 850, 854-55 (Alaska App. 1983) (establishing a
benchmark range of 20 to 30 years for a "typical" second-degree murder).
40 See Apprendi v. New Jersey , 530 U.S. 466, 490 (2000) (requiring that facts that
increase the penalty for a crime beyond the prescribed statutory maximum, other than the fact
of a prior conviction, must be found by a jury beyond a reasonable doubt); Blakely v.
Washington, 542 U.S. 296, 301 (2004) (applying Apprendi to presumptive sentencing).
41 See Jones, 759 P.2d at 569 ("In the absence of evidence ruling out the possibility of
a tactical reason to explain counsel's conduct, the presumption of competence remains
unrebutted and operates to preclude a finding of ineffective assistance."); Steffensen, 902
P.2d at 341.
20 2292
----------------------- Page 21-----------------------
attorney considered these arguments to be tactically superior to an argument that would
run contrary to the jury's verdict.
In particular, Lindeman's claim about the application of Apprendi and
Blakely are without merit. Lindeman was convicted of second-degree murder, a charge
that carries a sentencing range of up to ninety-nine years.42 The sentencing judge was
not required to find any aggravating factors to impose a maximum sentence for this
crime. Therefore, Lindeman's sentencing hearing was not subject to the Apprendi and
Blakely requirement of a jury trial for aggravating factors that may increase the sentence
beyond the punishment authorized by the jury's verdict.43
Conclusion
We AFFIRM the superior court's judgment. Lindeman is entitled to file
an appeal on the issue of whether the supplemental jury instruction allowed the jury to
convict Lindeman on a theory not encompassed by the indictment. The opening
appellate pleadings must be filed within 30 days, but the filing fee is waived.
42 Former AS 11.41.110(b) (1996); former AS 12.55.125(b) (1996).
43 Carlson v. State, 128 P.3d 197, 211(Alaska App. 2006) (concluding that a defendant
convicted of second-degree murder has no right to a jury trial on the question of whether they
should receive a sentence above the Page benchmark range).
21 2292
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
