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Burton v. State (4/18/2008) ap-2156

Burton v. State (4/18/2008) ap-2156

                             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:
               
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                      Fax:  (907) 264-0878
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         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ALAN R. BURTON, )
) Court of Appeals No. A-9686
Appellant, ) Trial Court No. 3KN-01-102 Civ
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2156 April 18, 2008
)
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Kenai, Charles  T.  Huguelet,
          Judge.

          Appearances:  James H. Cannon, Fairbanks, for
          the   Appellant.    Blair   M.   Christensen,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Over  a  decade  ago, Alan R. Burton was  convicted  of
first-degree  murder  for  shooting and killing  his  girlfriend,
Susan Overbeck.  This Court affirmed Burtons conviction on direct
appeal.  Burton v. State, Alaska App. Memorandum Opinion No. 4150
(November 17, 1999), 1999 WL 1260482.
          A  little  over one year later, Burton initiated  post-
conviction  relief  proceedings in the superior  court.   In  his
petition,  Burton  argued  that  his  trial  attorney  had   been
ineffective  in  various ways.  Superior Court Judge  Charles  T.
Huguelet  ultimately dismissed Burtons petition  for  failure  to
state  a  prima facie case for relief.  Judge Huguelet  concluded
that Burton had either failed to make a prima facie case for  his
attorneys  incompetence, or had failed to show how his  attorneys
alleged  incompetence  might  have prejudiced  him.   Burton  now
appeals the superior courts decision.

     The  relationship  of our decision  in  Burtons  direct
     appeal  to  the  resolution of his  current  claims  of
     ineffective assistance
     
               Before  we turn to Burtons individual  claims
     of   ineffective   assistance,  we   must   address   a
     preliminary issue.  Burton asserts that Judge  Huguelet
     committed legal error when the judge ruled that two  of
     Burtons  claims  of ineffective assistance  of  counsel
     were  precluded  by this Courts resolution  of  Burtons
     direct appeal.
               Burton  argued in his post-conviction  relief
     petition  that his trial attorney gave him  ineffective
     assistance of counsel because she failed to  object  to
     certain  portions  of  the  testimony  given   by   two
     witnesses,  Dorothy  Leach  and  Sheryl  Perry.   Judge
     Huguelet ruled that even if Burtons trial attorney  was
     conceivably incompetent for failing to object  to  this
     testimony,   Burton   could   not   prove   ineffective
     assistance  of counsel because this Court  (in  Burtons
     direct appeal) had already ruled that the admission  of
     this  testimony was harmless beyond a reasonable doubt.
     Burton,  Memorandum Opinion No. 4150 at 12-13, 1999  WL
     1260482 at *6.
          Similarly,  Burton  argued  that  his   trial
attorney  gave  him ineffective assistance  of  counsel
because, at Burtons murder trial, she failed to ask for
jury  instructions  on two lesser degrees  of  criminal
homicide   (manslaughter   and   criminally   negligent
homicide).  Judge Huguelet rejected his claim in  large
measure because this Court had already ruled (again, in
Burtons  direct appeal) that any error  in  failing  to
instruct  the  jury concerning [these] lesser  offenses
...  was  manifestly harmless  given that the jury  had
been   instructed   on  second-degree   murder   (i.e.,
unintentional  murder)  and had nevertheless  convicted
Burton   of   first-degree  murder  (i.e.,  intentional
murder).   Burton, Memorandum Opinion No. 4150  at  12,
1999 WL 1260482 at *6.
          In  the  current appeal, Burton asserts  that
Judge Huguelets analysis of these two claims was flawed
by  a  fundamental misunderstanding of the relationship
between  (1) an appellate courts resolution of a  claim
of  plain  error in a defendants direct  appeal  (i.e.,
resolution  of  a claim that was not preserved  in  the
trial  court  because the defense  attorney  failed  to
object),  and (2) a defendants ability to argue  later,
in   post-conviction  relief  litigation,  that   their
attorney was incompetent because the attorney failed to
object.
          Specifically,  Burton  asserts  that  it   is
possible  for  a defendant to prove (in post-conviction
relief   litigation)   that   their   attorney    acted
incompetently by failing to object to evidence,  or  by
failing  to  object  to  a  trial  judges  action   (or
inaction)  even though, on direct appeal, the appellate
court  concluded that the attorneys failure  to  object
was  not  plain  error.  And, based on this  assertion,
Burton  contends  that Judge Huguelet  committed  error
when  he  relied  on  this Courts decision  in  Burtons
direct   appeal   to  resolve  these  two   claims   of
ineffective assistance of counsel.
          Burton  is  partially correct.  In  order  to
explain this conclusion, we must review the definitions
of ineffective assistance of counsel and plain error.
          Under  Risher  v.  State1 and  Strickland  v.
Washington,2   a   defendant  who  claims   ineffective
assistance  of  counsel must prove two things:   first,
that their attorney acted incompetently (i.e., that the
attorney  failed  to meet the standard  of  performance
minimally required of criminal law practitioners);  and
second, that this attorney incompetence prejudiced  the
defendant  (i.e., that there is at least  a  reasonable
possibility  that  the result at the  defendants  trial
would   have  been  different  but  for  the  attorneys
incompetence).
          Under  Alaska  law,  an  error  to  which  no
objection was preserved in the trial court will qualify
as  plain  error only if (1) the error was  so  obvious
that it should have been noticed by the trial court sua
sponte3  (i.e., the error should have been apparent  to
any  competent  judge  or lawyer);4  (2)  the  attorney
representing  the  party who now claims  error  had  no
apparent  tactical reason for failing to  object;5  and
(3) the error was so prejudicial to the fairness of the
proceedings that failure to correct it would perpetuate
manifest injustice.6
          Given  these  definitions, it is  clear  that
Burton is correct when he asserts that a finding of  no
plain error on appeal will not necessarily rule out the
possibility    that   the   defense   attorney    acted
incompetently by failing to object.
          A  plain error is an act or omission that  is
manifestly wrong, so wrong that any competent judge  or
attorney should have recognized the error and corrected
it.7   For present purposes, the crucial aspect of  the
plain  error  doctrine is that it focuses on  what  the
judge should or should not have done.
          True, this Court has previously remarked that
plain  error and ineffective assistance of counsel  are
essentially two sides of the same coin:
     
          If   an  error  is  so  obvious  and  so
     prejudicial  that an appellate  court  should
     recognize it as plain error on appeal, [then]
     experienced,  competent trial counsel  should
     recognize it and seek its correction  in  the
     trial court by a timely objection.  A finding
     of  plain  error is therefore  virtually  the
     equivalent   of  a  finding  of   ineffective
     assistance of counsel.  Rarely will one exist
     in the absence of the other.
     
     Potts  v.  State, 712 P.2d  385,  394  n.  11
     (Alaska App. 1985).
               But  although  a finding  of  plain
     error  may be virtually the equivalent  of  a
     finding of ineffective assistance of counsel,
     the  converse  is not true.  There  are  many
     instances where, although an attorney may  be
     acting     incompetently,    the    attorneys
     incompetence (and any accompanying injustice)
     will  not be obvious to the trial judge   and
     thus there will be no plain error.
          This  is the underlying premise  of
our    decision   in   Barry    v.    State,8
  where  we  held  that  claims  of  ineffect
ive assistance of counsel must ordinarily  be
litigated    in    post-conviction     relief
proceedings rather than raised as  claims  of
plain  error on direct appeal.  In Barry,  we
observed   that  the  record  of  the   trial
proceedings    will    seldom    conclusively
establish incompetent representation, because
that   record   will   rarely   provide    an
explanation for the attorneys conduct that is
challenged as deficient.9  We addressed  this
issue  again  in  Sharp v.  State,  where  we
explained   that   [c]laims  of   ineffective
assistance can rarely be determined from  the
trial   record  alone  [because  a   defense]
attorneys  trial  decisions  including  which
potential  defenses  to  pursue,  whether  to
object   to  the  evidence  offered  by   the
government,  how to cross-examine  government
witnesses, and whether and how to  present  a
defense     case     generally    rest     on
considerations of strategy and trial  tactics
that  are  not  directly  addressed  in  open
court.10
          In  other words, even when a partys
claim   of  plain  error  is  based  on   the
assertion  that their attorney  incompetently
allowed something to happen at trial, or that
the  attorney incompetently failed to request
something  different, the question on  appeal
          is normally not whether the attorney acted
incompetently.   Instead,  the  question   is
whether, based on what the trial judge  knew,
the  judges failure to recognize the  problem
and  take  corrective action sua  sponte  was
unreasonable or incompetent.
          Thus, there will be instances where
a  defense  attorney  may  have  been  acting
incompetently,  but the trial  judge  had  no
reason to know this, and for this reason  the
appellate court will conclude that  there  is
no  plain error.  In these circumstances, the
appellate  courts finding of no  plain  error
will   not  preclude  the  defendants   later
attempt  to  demonstrate the trial  attorneys
incompetence   in   post-conviction    relief
litigation.
          But the situation is different when
an  appellate court rejects a claim of  plain
error, not on the basis that the trial  judge
had no reason to be aware of the problem, but
rather  on the basis that the error, although
plain  (in  the  sense of obvious),  did  not
prejudice the defendant.
          For  instance, in Kenison v. State,
107  P.3d  335,  349 (Alaska App.  2005),  we
acknowledged   that   the   superior   courts
instruction  to  the jury on the  meaning  of
fear  was  obviously wrong,  but  we  further
concluded  that the error in the  instruction
actually  favored  the  defendant,  and  thus
there  was  no  plain  error   because,  with
regard  to  the  defendant,  this  error  was
harmless.
          Similarly, in Norris v. State,  857
P.2d   349,   355  (Alaska  App.  1993),   we
concluded   that   even   though   the   jury
instruction  on  second-degree   murder   was
flawed,  the  error  in the  instruction  was
cured   by  the  explanation  of  this  point
contained  in the summations of the  parties,
and  thus  the  error did not  prejudice  the
defendant.
          More  recently, we have  repeatedly
held that, in felony sentencings governed  by
Alaskas  presumptive sentencing law, a  trial
judges   failure   to   submit   a   proposed
aggravating  factor  to  the  jury  did   not
constitute  plain  error  under  Blakely   v.
Washington11   when  the  evidence   on   the
aggravator  was  not  subject  to  reasonable
dispute   in other words, when there  was  no
reasonable possibility that a jury would have
found  in  the defendants favor even  if  the
issue  had  been submitted to a  jury.   See,
          e.g., Active v. State, 153 P.3d 355, 367
(Alaska App. 2007); Milligrock v. State,  118
P.3d 11, 17 (Alaska App. 2005).
          In  such circumstances  i.e.,  when
an appellate courts finding of no plain error
is based on the conclusion that the error did
not  harm the defendant  the appellate courts
decision  is  relevant  to,  and  potentially
decisive  of, any later claim of  ineffective
assistance  of  counsel.   If,  indeed,   the
defendant suffered no harm on account of  the
error,  then even if the defendant can  prove
that  the  error was the result  of  attorney
incompetence, the defendant will not be  able
to  prove  the  second prong of  the  Risher-
Strickland test (the prejudice prong).
          We   acknowledge  that,   when   an
appellate court decides a direct appeal,  the
appellate  court will often use  a  test  for
reversible  error  (e.g., whether  the  error
appreciably affected the jurys verdict)  that
is  less  strict than the test for  prejudice
under  the Risher-Strickland standard  (i.e.,
whether  there  is  a reasonable  possibility
that  the  error affected the  outcome).   In
such  cases,  if  a  defendant  proves  their
attorneys  incompetence in a  post-conviction
relief  action, the defendant would  then  be
entitled  to argue that the appellate  courts
conclusion  of no harm should be re-evaluated
under  the harmless beyond a reasonable doubt
standard specified in Risher and Strickland.
          Moreover,  even when  an  appellate
court  uses  a  harmless beyond a  reasonable
doubt  test for reversible error (as it  must
when  the proved error is a deprivation of  a
constitutional   right),  a   post-conviction
relief  litigant might still be able to  show
that  there  is  good cause to re-assess  the
appellate courts conclusion that there was no
reasonable possibility that the error  harmed
the  defendant  for example, by showing  that
any  competent  defense attorney  would  have
chosen   a   different   overall   litigation
strategy at the defendants trial.
          But    in   many   instances,   the
pleadings  and  proof  in  a  post-conviction
relief  case will provide no reason to  doubt
the  appellate courts earlier conclusion that
any  error  was harmless.  In such instances,
even  if  the defendant shows that the  error
can   be   attributed  to   their   attorneys
incompetence,  the superior court  may  still
validly   rely   on   the  appellate   courts
conclusion  of harmlessness as  a  basis  for
denying the requested relief.
          Burton argues that recent decisions
of   the  Missouri  courts  show  that   this
reasoning is flawed.  We disagree.  In  fact,
our  research discloses that Missouri follows
the  rule  that we have just explained.   See
Shifkowski v. State, 136 S.W.3d 588 (Mo. App.
2004).

The  superior  courts rejection of  Burtons  claim
regarding  the  testimony  of  Dorothy  Leach  and
Sheryl Perry

     As  we  explained  in our  opinion  resolving
Burtons  direct appeal, evidence was presented  at
Burtons  trial  that he assaulted his  girlfriend,
Susan  Overbeck, by kicking her in  the  head  and
stomach  and that, following this assault, one  of
Overbecks  friends took her to  the  residence  of
Sheryl Perry.
     Perry observed the bruises on Overbecks  face
and  back,  and  she spoke to Overbeck  about  her
injuries.  According to Perry, Overbeck  told  her
that Burton had caused these bruises, and Overbeck
further  stated  that she was afraid  that  Burton
might kill her.
     In  Burtons  direct appeal, he asserted  that
Perrys   testimony  about  Overbecks  out-of-court
statements  was inadmissible hearsay.   We  upheld
the  admission of Overbecks statement  attributing
her  injuries to an assault by Burton (because  it
was  an  excited  utterance), but we  agreed  with
Burton  that  the  trial  judge  should  not  have
allowed Perry to relate Overbecks statement  about
her fear that Burton might kill her in the future.
          Nevertheless, we concluded that any error  in
admitting  this  statement was harmless  because  [t]he
danger  of admitting Overbecks ... expression  of  fear
i.e.,  the  danger  that  the  jury  might  be  led  to
speculate  that Burton had done things to  arouse  this
fear   was  alleviated by the fact that the jury  heard
admissible  evidence of Burtons [repeated] assaults  on
Overbeck.   Indeed,  at  the end  of  our  opinion,  we
addressed  the cumulative effect of all the  improperly
admitted  hearsay at  Burtons trial,  and  we  declared
that this testimony (even considered all together)  was
harmless beyond a reasonable doubt.
          The  State  also presented the  testimony  of
Dorothy  Leach.   Leach lived near Overbecks  place  of
work, and Overbeck would often come to Leachs house  to
use  the  telephone.   After one such  telephone  call,
Overbeck  showed  Leach some bruises on  her  back  and
chest.  She told Leach that Burton had beaten her.  She
also  stated that Burton was so jealous [that] one  day
he [would] kill [her].
          On   appeal,  Burton  contended   that   this
testimony was inadmissible hearsay.  We found no  plain
error because the defense attorney had not objected  to
this  testimony,  and  because  hearsay  is  admissible
unless there is an objection.
          In   his   post-conviction  relief  petition,
Burton   asserted   that  his  trial   attorney   acted
incompetently  by failing to make proper objections  to
Perrys  and  Leachs  testimony about Overbecks  out-of-
court statements expressing fear that Burton would kill
her.  He further asserted that he was prejudiced by the
cumulative effect of these two statements.
          When  Judge Huguelet rejected this claim,  he
noted  that this Court had found that Perrys  testimony
on this subject was harmless beyond a reasonable doubt.
Judge  Huguelet pointed out (correctly) that this Court
had  not directly addressed the question of whether the
combined effect of Perrys and Leachs testimony on  this
subject   might  have  created  a  greater  degree   of
prejudice.   However, Judge Huguelet also  pointed  out
that  we  had  explained our basis for concluding  that
Burton  was  not  prejudiced by Perrys  testimony,  and
Judge Huguelet then declared that there [was] no reason
why  the  same  reasoning would  not  apply  to  Leachs
testimony.
          In   other  words,  Judge  Huguelet  rejected
Burtons claim of ineffective assistance, not because he
believed   that   our  discussion  of   prejudice   was
conclusive  on  this issue, but rather  because  Burton
failed  to present any reason to re-assess our  earlier
conclusion  of harmlessness (which, strictly  speaking,
applied  only to Perrys testimony), nor any  reason  to
believe  that the testimony of Perry and Leach on  this
issue,   even  taken  in  combination,  was  any   more
prejudicial than Perrys testimony alone.
          In  his  current appeal to this Court, Burton
contends that Judge Huguelet was wrong to dismiss  this
claim,  but  most  of his argument is  devoted  to  the
proposition that his trial attorney was incompetent for
failing to object to the hearsay presented by Perry and
Leach.   This issue is moot; Judge Huguelets  dismissal
of  this  claim was not premised on Burtons failure  to
plead a prima facie case of attorney incompetence,  but
rather on Burtons failure to show any reason to believe
that this alleged incompetence prejudiced him.
          On  the  issue of prejudice, Burtons argument
consists  of  a  single conclusory  sentence:   Burtons
allegation  of ineffectiveness on this issue  was  well
pled  and  should  not  have  been  dismissed  on   the
pleadings  before  he had a chance to  depose  his  ...
trial counsel.
          But  Burton offers no explanation of  why  he
believes  that  his  attorneys  deposition  might  have
advanced  his  contention that  he  was  prejudiced  by
Perrys  and Leachs challenged testimony.  Moreover,  as
we  recently explained in LaBrake v. State,12   Burtons
allegation  of prejudice was not well pled   at  least,
not  in  the  sense that Judge Huguelet was obliged  to
assume the truth of this allegation.
          Burtons only assertion that he was prejudiced
by  his  trial  attorneys failure  to  object  to  this
testimony  is  contained in a single  sentence  of  the
affidavit  that  Burton submitted  in  support  of  his
application for post-conviction relief.  That  sentence
reads,  I  believe  [that my trial attorneys]  failures
regarding the hearsay allowed at trial were the  direct
cause   of  my  conviction,  and  constituted  flagrant
ineffective assistance of counsel.
          This  was not enough to survive a motion  for
judgement  on  the  pleadings or a motion  for  summary
judgement.   We  held in LaBrake that even  though  the
superior  court must, at this stage, presume the  truth
of  all well-pleaded assertions of fact in a defendants
petition  for post-conviction relief, this  presumption
does  not apply to [a defendants] assertions concerning
the  legal  effect or categorization of the  underlying
occurrences ... , nor does the presumption apply to  [a
defendants]   conclusory  assertions   concerning   the
ultimate facts to be decided.  152 P.3d at 480-81.
          In  sum,  Judge  Huguelet properly  concluded
that  Burton failed to present even a prima facie  case
that  the  admission of this challenged testimony  made
any  possible  difference to  the  outcome  of  Burtons
trial.

The   superior   courts  rejection  of  Burtons   claim
regarding his trial attorneys failure to ask  for  jury
instructions  on  the lesser offenses of   manslaughter
and criminally negligent homicide

          Burton  was indicted for first-degree  (i.e.,
intentional) murder.  At Burtons trial, the State  took
the  position  that  Burton bludgeoned  Overbeck,  then
stabbed  her, and then finally shot her with a shotgun,
with the intention of killing her.
          Burton  took the stand and asserted  that  he
had  been  attempting to save Overbecks life, not  kill
her.   Burton  testified that Overbeck  was  distraught
and  was threatening to commit suicide with the shotgun
so  Burton  intervened and tried to wrest  the  shotgun
from  her  control.  Burton asserted that,  during  the
struggle  for  control  of  the  shotgun,  the   weapon
accidentally discharged and mortally wounded Overbeck.
          To  support Burtons contention that Overbecks
death was an accident, the defense attorney relied  not
only  on  Burtons  testimony but  also  on  the  States
forensic evidence, which the defense attorney contended
was  equally consistent with Burtons innocence as  with
his guilt.  The defense attorney also relied on Burtons
conduct and reactions following the shooting.   It  was
          Burton who called 911 to summon police and medical
assistance.   And,  as shown by the  911  tape,  Burton
urged  Overbeck  who was still alive  to hang on  until
help  arrived.  Burton also stated that  he  wanted  to
kill himself.  Finally, the defense attorney relied  on
the  fact  that,  even  though  Overbeck  survived  for
approximately 40 minutes after the shooting, she  never
accused Burton of shooting her.
          When  the  parties  initially  discussed  the
possibility  of  jury instructions on  lesser  included
offenses,  the prosecutor asked the superior  court  to
instruct  the  jury  on  all three  lesser  degrees  of
criminal homicide:  second-degree murder, manslaughter,
and  negligent homicide.  Burtons attorney opposed  any
instructions  on these lesser offenses;  she  contended
that Burton was either guilty of first-degree murder or
he was guilty of nothing, and the jury should be put to
this choice.
          After hearing these competing positions,  the
trial  judge  ruled  that  the evidence  supported  one
reasonable alternative between first-degree murder  and
acquittal:  the conclusion that Burton  was  guilty  of
second-degree  murder.   The  trial  judge  essentially
agreed  with  the defense attorneys position  that  the
evidence   allowed  only  two  reasonable  conclusions:
either  (1) Burton intentionally shot Overbeck, or  (2)
the shooting was an accident that occurred while Burton
was  trying to save Overbeck, and there was  no  crime.
However,  the judge apparently concluded that the  jury
could   reasonably  find  that,  even   though   Burton
intentionally shot Overbeck, he did not do so with  the
intent of killing her.  (When a homicide results from a
purposeful  attack, intent to kill is the element  that
generally distinguishes first-degree murder from second-
degree  murder.  Compare AS 11.41.100(a)(1)(A) with  AS
11.41.110(a)(1)-(2).)
          Thus,  the jury was instructed on both first-
degree  (intentional) and second-degree (unintentional)
murder.  The jurors found Burton guilty of first-degree
murder;  that  is,  they found  that  Burton  not  only
purposely shot Overbeck, but that he acted with  intent
to kill.
          In  his direct appeal, Burton argued that the
trial   judge  should  have  instructed  the  jury   on
manslaughter  and  criminally negligent  homicide.   We
rejected that argument for two reasons.
          First,  the  defense attorney conceded  (when
questioned by the trial judge) that, given the evidence
in  the case,  there was no version of facts that would
realistically support a verdict of either  manslaughter
or  criminally negligent homicide.  Thus, this claim of
error was not preserved.
          Second, we concluded that any potential error
was  harmless  since the jury was given the opportunity
to  find that Burton acted without intent to kill,  and
they  rejected that conclusion.  (This was demonstrated
by the jurys decision to convict Burton of first-degree
murder  rather than second-degree murder.)   Given  the
evidence  in  Burtons  case, the  jurys  decision  that
Burton  acted  with the intent to kill meant  that  the
jury  could  not reasonably have found  him  guilty  of
either manslaughter or criminally negligent homicide.
          (The  evidence in Burtons case gave no reason
to  believe  that  he committed voluntary  manslaughter
i.e.,  no  reason to believe that Burton  intentionally
killed  Overbeck  after she subjected  him  to  serious
provocation that prompted him to kill her in  the  heat
of passion.)13
          In  his  petition for post-conviction relief,
Burton asserted that his trial attorney was incompetent
for  deciding to litigate Burtons case in this  fashion
i.e., for allowing the case to go to the jury with only
three  verdict  choices:  first-degree murder,  second-
degree  murder, or acquittal.  Burton asserted that  no
reasonably competent defense counsel would have adopted
[this]  position, and that  [t]he risk of a  conviction
for  murder  [was] far too great to warrant an  all-or-
nothing gamble with a clients life.
          To  support  this assertion of  incompetence,
Burtons   post-conviction  relief  attorney   presented
affidavits  from  two  experienced  defense  attorneys,
Geoffry  Wildridge and Michael Dieni.   Both  of  these
attorneys  stated  that,  in  any  case  involving  the
accidental discharge of a firearm, they would  ask  for
jury   instructions  on  manslaughter  and   criminally
negligent homicide.
          Mr.  Wildridges affidavit is worded in a  way
that  does not directly assert that any other  approach
would  be incompetent.  Rather, Wildridge merely stated
that  his  personal approach is to err on the  side  of
caution  and ask for jury instructions on any potential
lesser  offenses.  Mr. Dieni, on the other  hand,  made
the more forceful assertion, It is difficult to imagine
an  accidental  discharge case  involving  a  defendant
handling  a  gun where the lesser-included  offense  of
negligent homicide would not be requested.
          However,   neither  Wildridges   nor   Dienis
affidavit  addresses the litigation  choices  facing  a
defense  attorney given the particular facts of Burtons
case.   Both Wildridge and Dieni focus their discussion
on  cases  where the defense claim is that the  firearm
discharged  accidentally because of a physical  defect,
or  because  the defendant was handling  it  carelessly
either  under the mistaken belief that the gun was  not
loaded, or because the defendant was too intoxicated to
handle  firearms safely, or because the  defendant  was
recklessly  and  unjustifiably  pointing  the  gun   at
another  person.   Neither of the attorneys  affidavits
addresses, or shows any awareness of, Burtons testimony
that  he  took hold of the weapon only because  he  was
          attempting to interrupt an active suicide attempt.
          In  Judge Huguelets decision dismissing  this
claim   of   ineffective  assistance,  he  noted   that
Wildridges affidavit did not assert that Burtons  trial
attorneys approach to the case was incompetent, and  he
further  noted that Dienis affidavit (which did contain
such  an  assertion) was addressed to cases  that  were
factually  dissimilar  to Burtons  case.   Thus,  Judge
Huguelet  concluded,  neither affidavit  provided  good
reason   to   believe  that  Burtons  trial   attorneys
litigation strategy was incompetent.
          But  Judge  Huguelet declared that  the  most
convincing[] reason for rejecting Burtons allegation of
ineffective  assistance was this Courts conclusion  (on
direct appeal) that any error was harmless (because the
jury  received an instruction on second-degree  murder,
but  the  jurors  nevertheless found Burton  guilty  of
intentional  murder).  Based on this Courts  conclusion
that  Burton had not been harmed by the absence of jury
instructions  on  manslaughter or criminally  negligent
homicide, Judge Huguelet concluded that even if Burtons
trial  attorney had conceivably acted incompetently  in
failing  to  pursue jury instructions on  these  lesser
offenses,  Burton had still failed to present  a  prima
facie   case  that  he  was  prejudiced  by  his  trial
attorneys decision.
          In  this  appeal, Burton argues that  it  was
error  for Judge Huguelet to base his decision on  this
Courts  finding  of no harm in Burtons  direct  appeal.
Burton is partially correct.  In this situation,  Judge
Huguelet   could  not  ignore  the  issue  of  attorney
incompetence  and  rely solely on this  Courts  earlier
conclusion of harmless error.  As we explained  in  the
first  section of this opinion, if Burton  presented  a
prima facie case that his trial attorneys overall trial
strategy  was incompetent  i.e., a prima facie  showing
that  all competent defense attorneys would have chosen
a  different  overall litigation  strategy   then  this
would  constitute good cause to re-assess  this  Courts
conclusion that Burton was not harmed by the absence of
the  jury  instructions on manslaughter and  criminally
negligent homicide.
          Thus,  the  true underlying issue is  whether
Burton  presented  a prima facie case  that  his  trial
attorney  was incompetent for choosing this  litigation
strategy.  We have examined the record, and we conclude
that  Burton failed to present a prima facie case  that
his    trial   attorneys   litigation   strategy    was
incompetent.   (The  adequacy of Burtons  petition  and
supporting documents to survive a motion for  judgement
on  the  pleadings is a question of law;  we  therefore
review it de novo.)14
          In  support  of  the assertion  that  Burtons
trial   attorney   chose   an  incompetent   litigation
strategy,   Burtons  post-conviction  relief   attorney
          submitted the two affidavits from attorneys Wildridge
and  Dieni.   But, as noted above, these two affidavits
do not address the facts of Burtons case, and the kinds
of  cases  that  Wildridge and  Dieni  do  discuss  are
substantially different from Burtons.
          In  addition to these two affidavits, Burtons
post-conviction relief attorney submitted a list of ten
proposed different ways of defending Burtons case  ways
that  at  least  conceivably would have warranted  jury
instructions   on   manslaughter   and/or    criminally
negligent   homicide.    But  these   ten   alternative
litigation  theories are all premised  on  one  of  two
assertions:    either   that  Burton   was   criminally
negligent  or  reckless  for  having  a  loaded  weapon
accessible  in his home when he had reason  to  believe
that   Overbeck  was  suicidal,  or  that  Burton   was
criminally  negligent or reckless for trying  to  wrest
control  of  this  weapon from  Overbeck  (rather  than
leaving  Overbeck  to  carry out  her  threat  to  kill
herself, or merely trying to talk her out of it).
          Some   of  these  ten  suggested  alternative
litigation  strategies are plausible  ways  of  arguing
Burtons  case.  But in light of Burtons trial testimony
(coupled  with  his arguably exculpatory actions  after
Overbeck  was shot, as described above), none of  these
ten  alternative strategies stands out as significantly
better than the litigation strategy that Burtons  trial
attorney pursued.
          Moreover,  the ultimate issue is not  whether
one  or  more  of  these  ten suggestions  is  arguably
better, or even significantly better, than the strategy
that Burtons trial attorney pursued.  Rather, the issue
is  whether the litigation strategy adopted by  Burtons
trial  attorney  is  so much worse  that  no  competent
defense attorney would have chosen it.
          Having  carefully examined the  pleadings  in
this case, we conclude that Burton failed to present  a
prima  facie  case that his trial attorneys  litigation
strategy   was   incompetent.   Judge  Huguelet   could
therefore   properly  dismiss  this  claim  for   post-
conviction relief.

The   superior   courts  rejection  of  Burtons   claim
regarding   his   trial   attorneys   preparation   and
presentation  of  the testimony of  Thomas  Vogel,  the
defense firearms expert

          At  Burtons trial, his attorney presented the
testimony  of  a firearms expert, Thomas Vogel.   Vogel
examined  the shotgun shell retrieved from  the  weapon
that  killed Overbeck, and he noted that the impression
left  by the firing pin on this shotgun shell was  off-
center   which  suggested  to Vogel  that  a  deforming
pressure was being exerted on the breach block  of  the
weapon at the time it discharged.  Vogel told the  jury
that  he  tested a similar shotgun (i.e., a shotgun  of
the  same make and model) in his shop, and that he  was
able   to  reproduce  this  off-center  impression   by
exerting pressure on the breach block with his fingers.
In  other words, Vogels testimony supported the defense
contention that the shotgun had discharged by  accident
during a physical struggle for control of the weapon.
          In   Burtons   petition  for  post-conviction
relief,  he  asserted  that  his  trial  attorney   was
incompetent  in  her  preparation of  Vogels  testimony
because  she  failed to ask Vogel to  test  the  actual
weapon  that killed Susan Overbeck, and instead allowed
Vogel to perform his testing on another shotgun of  the
same make and model (i.e., another Mossberg 500).
          But  in  her responding affidavit, the  trial
attorney explained why she had Vogel testify as he did.
The   trial  attorney  explained  that  she  originally
discussed the case with another firearms expert, Lucien
C.  Haag,  who had been retained by the Public Defender
Agency  to  examine  the  weapon  [and]  ammunition  in
Burtons  case.   However,  after  Haag  conducted   his
analysis of this weapon and ammunition, he informed the
trial  attorney  that he would not  be  a  particularly
helpful  witness  because he could not provide forensic
corroboration of Burtons account of the shooting.
          After  Haag declared that he could  not  give
testimony   to  support  Burtons  account,  the   trial
attorney  turned to Vogel (who was the owner of  a  gun
shop) to see if he could corroborate Burtons contention
that  the  shotgun fired accidentally when it struck  a
bedpost  while Burton was trying to wrest the gun  from
Overbeck.   As it turned out, Vogel was also unable  to
corroborate  Burtons  account.  However,  as  explained
above, when Vogel tested a shotgun of the same make and
model,  the  result of his testing suggested  that  the
weapon  in  Burtons case had potentially been subjected
to  a  deforming pressure when it discharged   thus  at
least  partially corroborating Burtons  testimony  that
the shotgun had fired during a struggle for control  of
the weapon.
          Further, Vogel testified that it was possible
for  a  weapon  of  this make and  model  to  discharge
without an active pull on the trigger if it was  jarred
or hit hard enough.
          Given the trial attorneys explanation of this
matter,  Burtons  petition failed to  present  a  prima
facie case of attorney incompetence.
          Burton  also  argued that his trial  attorney
was  incompetent because, during Vogels testimony,  the
trial  attorney failed to ask Vogel to explicitly state
that  the result of his testing was at least consistent
with  Burtons testimony that the weapon had  discharged
during  a  struggle  for control of  the  weapon.   But
Burton  does  not explain how it would have appreciably
helped  the  defense  case  to  have  Vogel  make  this
assertion  in his testimony, as opposed to  having  the
trial attorney draw this obvious conclusion during  her
argument to the jury.
          On   appeal,  Burton  asserts  an  additional
complaint  about  his trial attorneys performance.   He
contends that his trial attorney should not have relied
on  Vogels  testimony  at all   because  (according  to
Burton)  the manner in which Vogel reproduced the  off-
center firing pin impression (by exerting pressure with
three  fingers on the breach block) was such an unusual
way to hold the weapon that Vogels conclusion failed to
lend  any  credence to Burtons defense theory.   Burton
did not raise this contention in the superior court; it
is  not  found  in  either his original  petition,  his
amended petition, or his supplement to these petitions.
Accordingly, this additional claim is not preserved for
appeal.

The   superior   courts  rejection  of  Burtons   claim
regarding  his  trial  attorneys  cross-examination  of
Robert Shem, the governments firearms expert

          At Burtons trial, firearms expert Robert Shem
testified  for  the prosecution.  Shem concluded,  from
the  physical evidence, that the muzzle of the  shotgun
was  at  least two feet, and perhaps three  feet,  from
Overbecks  body  when  the  weapon  discharged.   Shems
testimony  on  this  issue tended to  disprove  Burtons
account of how the shooting occurred.
          In  his  petition for post-conviction relief,
Burton  argued  his trial attorney was incompetent  for
failing  to  cross-examine Shem in such  a  way  as  to
impeach  this testimony.  In her responding  affidavit,
Burtons    trial    attorney    stated    that    [her]
cross[-]examination of ... Shem could have been better.
However,  the question is whether her cross-examination
of Shem was incompetent.
          The  record shows that Burtons trial attorney
did  cross-examine Shem about some of his  conclusions.
In  particular,  the trial attorney attempted  (through
her  cross-examination of Shem) to  develop  additional
support for Vogels theory about the significance of the
off-center firing pin impression.
          During her cross-examination of Shem, Burtons
trial  attorney  pointed out that when Shem  test-fired
the  shotgun in his laboratory, three out of five  test
firings  resulted  in  a normal,  centered  firing  pin
impression.  Moreover even though the other two  firing
pin impressions were a little bit off-center, they were
not  off-center  to the same extent as  the  impression
found  on  the  fatal shotgun shell.  Thus,  the  trial
attorneys  cross-examination  of  Shem  suggested  that
Vogel  was  correct when he attributed  the  off-center
impression  on  the  fatal shell to a  deforming  force
exerted on the weapon.
          In the current appeal, Burton argues that his
trial  attorney could have asked more questions (1)  to
conclusively  establish that the distance  between  the
muzzle and Overbecks body could not have exceeded three
feet,  and  (2)  to point out that, even  though  Shems
testing established the muzzle distance as between  two
and  three  feet,  Shem  could not  say  exactly  where
(within this range) the muzzle had been.
          These  suggestions do not constitute a  prima
facie case of attorney incompetence.

Conclusion

          For the reasons explained here, we AFFIRM the
superior courts dismissal of Burtons petition for post-
conviction relief.

_______________________________
1 523 P.2d 421, 425 (Alaska 1974).

2  466  U.S. 668, 687; 104 S.Ct. 2052, 2064; 80 L.Ed.2d  674
(1984).

3 Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983).

4  Russell v. State, 934 P.2d 1335, 1343 (Alaska App. 1997);
Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989).

5 Russell, 934 P.2d at 1344; Massey, 771 P.2d at 453; Potts v.
State,  712 P.2d 385, 394 n. 11 (Alaska App. 1985);  Wortham
v. State, 689 P.2d 1133, 1139 (Alaska App. 1984).

6  Woodbury v. State, 151 P.3d 528, 532 (Alaska App.  2007);
Baker  v. State, 22 P.3d 493, 498 (Alaska App. 2001); Hosier
v. State, 1 P.3d 107, 112 n. 11 (Alaska App. 2000).

7 Wolfe v. State, 24 P.3d 1252, 1256 (Alaska App. 2001); see
also  Allen  v. State, 51 P.3d 949, 958 (Alaska App.  2002);
Massey, 771 P.2d at 453; Carman v. State, 658 P.2d 131,  137
(Alaska  App. 1983); Marrone v. State, 653 P.2d 672,  675-76
(Alaska App. 1982).

8675 P.2d 1292 (Alaska App. 1984).

9Id. at 1295-96.  See also State v. Jones, 759 P.2d 558, 565
(Alaska App. 1988).

10  837 P.2d 718, 722 (Alaska App. 1992).

11  542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

12152 P.3d 474, 480 (Alaska App. 2007).

13See AS 11.41.115.

14See Greywolf v. Carroll, 151 P.3d 1234, 1240 (Alaska 2007)
([an  appellate court] review[s] a grant of summary judgment
de  novo);  Allstate Insurance Co. v. Teel, 100  P.3d  2,  4
(Alaska 2004) ([an appellate court] review[s] a grant  of  a
motion  for judgment on the pleadings de novo); Alakayak  v.
British  Columbia  Packers, Ltd., 48 P.3d 432,  448  (Alaska
2002) (explaining that appellate review of these matters  is
de novo because the appellate court is in virtually the same
position  as  the trial court in its ability to  assess  the
adequacy  of  the pleadings) (quoting Gamble  v.  Northstore
Partnership, 907 P.2d 477, 482 (Alaska 1995)).

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