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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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