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Adams v. State (2/17/2017) ap-2540

Adams v. State (2/17/2017) ap-2540

                                                                                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@ akcourts.us  



                              IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



FRANK  LEWIS  ADAMS,  

                                                                                                                                                  

                                                                                                        Court of Appeals No. A-10549  

                                                                                                                                                                

                                                      Appellant,                                     Trial Court No. 3PA-07-2037 CR  



                                         v.  

                                                                                                                     O   P   I   N   I   O   N  

STATE  OF  ALASKA,  



                                                      Appellee.                                         No.  2540  -  February   17,  2017  



                           A                                                                                                            

                              ppeal from the Superior Court, Third Judicial District, Palmer,  

                                                                 

                           Beverly W. Cutler, Judge.  



                                                                                                                                                       

                           Appearances:  Andrew Steiner, Bend, Oregon, for the Appellant.  

                                                                                                                                                  

                           Kenneth M. Rosenstein, Assistant Attorney General, Office of  

                                                                                                                                                  

                           Special Prosecutions and Appeals, Anchorage, and Michael C.  

                                                                                                                                                

                           Geraghty and Craig W. Richards, Attorneys General, Juneau, for  

                                                       

                           the Appellee.  



                                                                                                                                          

                           Before:   Mannheimer, Chief Judge, Allard,  Judge, and Coats,  

                                                      *  

                                                         

                           Senior Judge. 



                                        

                           Judge MANNHEIMER.  



       *  

              Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   11   of   the   Alaska  

Constitution and Administrative Rule 23(a).                              


----------------------- Page 2-----------------------

                                                                                       Frank Lewis                                                                             Adams was convicted of murdering his girlfriend,                                                                                                                                                                                                                                                                                                    Stacey  



Johnston, and tampering with evidence to cover up the homicide.                                                                                                                                                                                                                                                                                                                                                                    In this appeal, Adams                                                                           



contends that various statements he made to the police following his arrest were obtained                                                                                                                                                                                                                                                                                                                                                                                                                                



in violation of the                                                                                               Miranda  rule and should have been suppressed.                                                                                                                                                                                                                                                                                



                                                                                       In a separate argument, Adams contends that the superior court should have                                                                                                                                                                                                                                                                                                                                                                                  



granted his motion for a new trial.                                                                                                                                                                                     Adams's request for a new trial was based on a claim                                                                                                                                                                                                                                                          



of ineffective assistance of counsel - in particular, his trial attorney's failure to raise a                                                                                                                                                                                                                                                                                                                                                                                                                                                                           



confrontation clause objection to the State's expert testimony concerning the cause of                                                                                                                                                                                                                                                                                                                                                                                                                                                                           



Johnston's death.                                                                                                   The testimony in question was given by Dr. Robert Whitmore, the                                                                                                                                                                                                                                                                                                                                                                       



 state medical examiner.                                                                                                                                    Dr. Whitmore did not personally perform the autopsy; rather,                                                                                                                                                                                                                                                                                                             



the autopsy was performed by another doctor -a                                                                                                                                                                                                                                                                           doctor who died before Adams's trial.                                                                                                                                                                                                                     



In Dr. Whitmore's testimony regarding the cause of death, he relied on observations                                                                                                                                                                                                                                                                                                                                                                                                    



made by the other doctor.                                                                                                                                                 Adams now claims that, because Dr. Whitmore relied on the                                                                                                                                                                                                                                                                                                                         



other doctor's observations, Whitmore's testimony violated the confrontation clause.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



                                                                                       Finally, Adams argues that his sentence is excessive in one respect.                                                                                                                                                                                                                                                                                                                                                                                    The  



 superior court sentenced Adams to serve a total of 102 years in prison, and the court                                                                                                                                                                                                                                                                                                                                                                                                                                                       



 further ordered that Adams not be eligible                                                                                                                                                                                                                                            for discretionary parole release during this                                                                                                                                                                                                                     



term of imprisonment.                                                                                                                               Adams contends that the superior court lacked justification for                                                                                                                                                                                                                                                                                                                                          



imposing this parole restriction.                                                                                                                                                                           



                                                                                       For the reasons explained in this opinion, we reject Adams's claims of error                                                                                                                                                                                                                                                                                                                                                                              



and we affirm the superior court's judgement.                                                                                                                                                                                                                                                               



                                           Facts relating to Adams's arrest and the first police interview                                                                                                                                                                                                                                                                                          



                                                                                       In the early morning hours of July 28,                                                                                                                                                                                                                               2007,   a gas station attendant                                                                                                                                                                        in  



Palmer called the police to report that a recent customer - a man driving a small red car                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                                           -  2 -                                                                                                                                                                                                                                                                    2540
  


----------------------- Page 3-----------------------

-  was probably drunk.                                                                                                                 According to the attendant, the man was driving south on the                                                                                                                                                                                                                                                                        



 Glenn Highway (                                                                         i.e., toward Anchorage).                                                



                                                                          A Palmer police officer located the vehicle and attempted to conduct a                                                                                                                                                                                                                                                                                                                                      



traffic   stop,   but   the   driver   would   not   stop.     Because   the   car   was   headed   toward  



Anchorage, the Palmer police contacted the Alaska State Troopers and the Anchorage                                                                                                                                                                                                                                                                                                                                               



police, asking them to deploy spike strips on the highway.                                                                                                                                                                                                                                                                  The Anchorage police placed                                                                                                   



 spike strips on the highway near Peters Creek, and they were able to stop the car.                                                                                                                                                                                                                                                                                                                                                                                  



                                                                           The car came to rest in a ditch alongside the highway.                                                                                                                                                                                                                                            The driver - Frank                                                               



Adams - was initially slumped over the steering wheel, but as the police approached                                                                                                                                                                                                                                                                                                                                         



the vehicle, Adams roused himself and picked up a tire iron.                                                                                                                                                                                                                                                                                Adams told the police that                                                                                                  



he had crashed his small plane, and that his wife was dead.                                                                                                                                                                                                                                                                            



                                                                          When   Adams   refused   to   comply   with   police   commands,   the   officers  



 sprayed him with pepper spray and shot him twice with                                                                                                                                                                                                                                                                      a   Taser.    After Adams was                                                                                                             



 subdued,   the police looked inside his car and saw what appeared to be a                                                                                                                                                                                                                                                                                                                                                          bundle of   



 clothes.     Upon   closer   inspection,   this   bundle   turned   out   to   be   the   body   of   Stacey  



Johnston.   



                                                                           Officers initially transported Adams to the police station, and then they took                                                                                                                                                                                                                                                                                                             



him to a hospital.                                                                               While Adams was at the hospital, a police officer overheard Adams                                                                                                                                                                                                                                                                                    



telling one of the hospital staff that he wanted a lawyer.                                                                                                                                                                                                                                                          



                                                                          After Adams was released from the hospital, the police brought him back                                                                                                                                                                                                                                                                                                                 



to the station.                                                              One of the officers who transported Adams back to the station told State                                                                                                                                                                                                                                                                                                            



 Trooper Sergeant Leonard Wallner (one of the lead investigators in the case) that Adams                                                                                                                                                                                                                                                                                                                                                               



had said he wanted an attorney.                                                                                                                                                   



                                                                          Apparently, Sgt. Wallner inferred that Adams had said this directly to the                                                                                                                                                                                                                                                                                                                        



transporting officer - because later, when Adams's suppression motion was litigated,                                                                                                                                                                                                                                                                                                                                                           



Wallner testified that "the information ... I was given was that Mr. Adams had invoked                                                                                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                                                                   -  3 -                                                                                                                                                                                                                             2540
  


----------------------- Page 4-----------------------

his rights, his constitutional rights as far as legal counsel", and that this invocation of                                                                                                                                                                                                      



rights "had been conveyed to patrol officers that were with him."                                                                                                                                                                 



                                              (Based on Wallner's testimony, the superior court premised its decision on                                                                                                                                                                         



the purported fact that Adams had told the officers who transported him from the hospital                                                                                                                                                                                      



to the station that he wanted an attorney.)                                                                                                       



                                              When Adams was returned to the station,                                                                                                               Sgt.   Wallner and Anchorage                                    



Police Detective Glenn Klinkhart (the other lead investigator in the case) decided to                                                                                                                                                                                                             



speak to Adams and ascertain for themselves whether Adams wished to invoke his right                                                                                                                                                                                                      



to counsel.                            



                                              When Wallner and Klinkhart entered the interview room, Adams appeared                                                                                                                                                        



to be sleeping.                                   (It was now 5:40 a.m.)                                                          After the officers awakened Adams, he told them,                                                                                                    



"I think I need an attorney."                                                                      The following exchange then took place:                                                                                                        



                                                

                                                                     Det. Klinkhart                                     :    Well, I wanted to just - I wanted to                                                                                    

                                              clarify that.   



                                                                    Adams :    [Well], I'm clarifying that.                                                                  

                                                

                                                                     Klinkhart : All right.  So you - you don't want to talk  

                                                                                                                                                                                                                                               

                                              to  me.                        You  don't  want  to  make  any  statements  or  say  

                                                                                                                                                                                                                                              

                                              anything?  Okay.   You've already been at the hospital.   Do  

                                                                                                                                                                                                                                              

                                              you need anything else before we continue what we need to  

                                                                                                                                                                                                                                                     

                                              do?  Okay.  

                                                             

                                                

                                                                    Adams :  This just isn't happening.  

                                                                                                                                                                                            



                                                                     Klinkhart :  Okay.  All right.  Well, ...  

                                                                                                                                                                                                       



                                                                      [The  video  recording  shows  that,                                                                                                  at   this  point,  

                                                                                                                                                                                                                                     

                                              Klinkhart and Wallner began to leave the room, but Adams  

                                                                                                                                                                                                                                   

                                              indicated - both verbally and with a gesture of his head -  

                                                                                                                                                                                                                                                   

                                              that he wished to speak to Sgt. Wallner.]  

                                                                                                                                                         



                                                                                                                                             -  4 -                                                                                                                                       2540
  


----------------------- Page 5-----------------------

            Wallner:    You want to talk to me?                         



           Adams :    Yep.    



            Wallner:   Well, we can talk.                     But I'm going to have to               

-  you know, because you've already said [that you] want an                                         

attorney ...   

  

           Adams :  Sir; yes, sir; no, sir.  

                                                              



            Wallner:  But I got to ...  

                                                       



           Adams : I want an attorney, but I'd like [to] talk to you  

                                                                                                  

[referring only to Wallner,  not Klinkhart]  just a couple of  

                                                                                                    

minutes.  

                 



           Klinkhart :  You want - would you like me to leave,  

                                                                                              

Mr. Adams?  

                        



           Adams :  Yes, sir.  

                                           

  

             Klinkhart :  Okay.   [The video recording shows that  

                                                                                                 

Klinkhart immediately walked out of the room.]  

                                                                                    



            Wallner:   Okay.                Well,  what  I'm  going to do,  I'm  

                                                                                                  

going to read you your Miranda  [rights] here, okay.  ...  

                                                                                                 



            [Wallner then advised Adams of his Miranda  rights.  

                                                                                                         

Adams acknowledged that he understood these rights, and he  

                                                                                                    

told Wallner that he had no questions concerning them.]  

                                                                                      



            Wallner:  Now, you said you want a - okay.  

                                                                                            



           Adams :  I just want to talk to you for just a minute.  

                                                                                        



                                                -  5 -                                                                2540
  


----------------------- Page 6-----------------------

                                                                                        Wallner: Okay, that's fine.                                                                                          I - just go ahead; I'll just                                                                    

                                                          listen.    



                                                          At this point, Adams commenced a narrative description of the events of                                                                                                                                                                                                                                            



the preceding several hours.                                                                                                 Wallner's contribution to the                                                                                                        conversation consisted of                                                                                 



numerous "okays" and occasional questions.                                                                                                                                                         



                                                          Adams told Wallner that Stacey Johnston was his girlfriend, and that they                                                                                                                                                                                                                                



lived together in a cabin in Chickaloon.                                                                                                                                  Adams was absent from the cabin for a while,                                                                                                                                 



and when he returned, he found Johnston "beat up" and dead.                                                                                                                                                                                                                 Adams told Wallner that                                                                   



he tried unsuccessfully to revive Johnston with CPR.                                                                                                                                                                                            When this was unsuccessful,                                               



Adams left the cabin and went                                                                                                               looking for the person who he suspected had killed                                                                                                                                                                



Johnston.   Adams could not find this person, so he eventually returned to the cabin, put                                                                                                                                                                                                                                                                               



Johnston's body in his car, and started driving her "to town" (                                                                                                                                                                                                         i.e., to Anchorage).                                                                      



                                                          Adams told Wallner that he and Johnston had recently tried to buy drugs                                                                                                                                                                                                                             



from   some   people,   and   the   transaction   had   ended   badly   -   with   the   drug dealers   



threatening   to   kill   them.     Adams   suspected   that   these   drug   dealers   had   murdered  



Johnston.    



                                                          A little later in the interview, Wallner asked Adams if he would allow the                                                                                                                                                                                                                                    



police to search his cabin.                                                                                      The following colloquy ensued:                                                                            



                                                            

                                                                                      Adams :    Sir, without sounding bad or anything ...                                                                                                                                                                   



                                                                                        Wallner:    Uh-huh.   



                                                                                      Adams :    I don't know what to do ...                                                                                                                        



                                                                                        Wallner:    Okay.    Okay.   



                                                                                      Adams :    ... right now.                                                                         I need an attorney.                          



                                                                                                                                                                                  -  6 -                                                                                                                                                                           2540
  


----------------------- Page 7-----------------------

                                                                                                   Wallner:    Okay.    Okay, I understand.                                                                                                                                             



                                                                                                Adams :    Okay.   



                                                                                                   Wallner: That's right; you just said that.                                                                                                                                                  Okay.   Okay.  



                                                                                                Adams :    (sighs) I just - I'm just telling you who ...                                                                                                                                                                                              

                                                                 you can go look at [                                                                        i.e., investigate] for this.                                                                                                



                                                                                                   Wallner:    Okay.    Okay.    Okay.    Okay.   Okay.   Uh, ...                                                                                                                                                                                                    



                                                                                                Adams :    Everything that you'll find, when you do go                                                                                                                                                                                               

                                                                 to that cabin, ...                                                            



                                                                                                   Wallner:    Uh-huh.   



                                                                                                Adams : You look, everything is me and her, who love                                                                                                                                                                                          

                                                                 each other; and we wrote it down constantly.                                                                                                                                                                           ...   It's all over                                

                                                                 the place - from pictures, notes, in our Bible.                                                                                                                                                                                    



                                                                 After Adams finished this description of things the police would find inside                                                                                                                                                                                                                                                          



the cabin,                                        Wallner asked Adams to describe the condition of Johnston's body when                                                                                                                                                                                                                                                                               



Adams found her, and the interview continued.                                                                                                                                                                                         



                                                                 A little later, toward the end of the interview, Wallner asked Adams, "Is                                                                                                                                                                                                                                                                         



there anything else I didn't ask you [that] you think is important?"                                                                                                                                                                                                                                                              Adams responded,   



"I need an attorney, but I [also] need to talk to narcotics officers".                                                                                                                                                                                                                                                 Wallner asked Adams                                                      



 several questions about why he needed to speak to narcotics officers, and the interview                                                                                                                                                                                                                                                                                             



ended shortly after that.                                                                                            



                                                                                                                                                                                                       -  7 -                                                                                                                                                                                                2540
  


----------------------- Page 8-----------------------

                 Did the officers violate Adams's Fifth Amendment right to counsel during                                                                                              

                 the first interview?     



                                  As we             explained in the preceding section, the superior court found that                                                                                         



Adams told his transporting officers that he wanted a lawyer.                                                                                                Sgt. Wallner and Det.                           



Klinkhart   were   informed   that   Adams   had   invoked   his   right   to   counsel,   but   they  



nevertheless decided to speak to Adams - to ascertain for themselves whether he indeed                                                                                                                  



wanted to invoke his right to counsel.                                                         



                                  Adams argues that Wallner and Klinkhart violated the rule of                                                                                             Edwards v.   



                                                                                                      1  

Arizona  when they initiated this contact.                                                                



                                 Edwards holds that when an arrested suspect "express[es] his desire to deal  

                                                                                                                                                                                                              



with the police only through counsel", the suspect "[must not be] subject[ed] to further  

                                                                                                                                                                                                       



interrogation by the authorities until counsel has been made available to him, unless the  

                                                                                                                                                                                                                



 [suspect] himself initiates further communication, exchanges, or conversations with the  

                                                                                                                                                                                                                 



police."  451 U.S. at 484-85, 101 S.Ct. at 1885.  

                                                                                                                           



                                  For purposes of Adams's case, the crucial aspect of the Edwards rule is  

                                                                                                                                                                                                                    



that, once a suspect in custody  invokes their right to counsel, any later conversation  

                                                                                                                                                                                        



between  the  suspect  and  the  police  must  be  suppressed  unless  the  conversation  is  

                                                                                                                                                                                                                   



 initiated by the suspect.  It is not sufficient for the government to show that the suspect  

                                                                                                                                                                                                      



 later waived their rights and voluntarily responded to police questioning.  Ibid.  

                                                                                                                                                                                     



                                  Here, Wallner and Klinkhart initiated the contact with Adams.  Thus, their  

                                                                                                                                                                                                             



 action  seemingly  violated  the  Edwards  rule.                                                                         The  State  argues,  however,  that  the  

                                                                                                                                                                                                               



 circumstances surrounding Adams's request for an attorney were unclear, and therefore  

                                                                                                                                                                                                  



Wallner and Klinkhart were entitled to seek clarification of Adams's wishes.  

                                                                                                                                                                                                 



         1  

                 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).                                                                               



                                                                                                       -  8 -                                                                                                2540
  


----------------------- Page 9-----------------------

                                                Wallner testified that his purpose in contacting Adams was to ascertain for                                                                                                                                                                              



himself whether Adams indeed wished to invoke his right to counsel - because Wallner                                                                                                                                                                                                   



had not personally heard Adams's request for an attorney, but rather had learned about                                                                                                                                                                                                         



the request second-hand from one of the patrol officers.                                                                                                                                                 



                                                On appeal, the State points out that, according to                                                                                                                                 the patrol officer who                                          



actually heard Adams request an attorney, Adams was                                                                                                                                                    not   being interrogated by the                                                                 



police (or even speaking to the police) when he made this request.                                                                                                                                                                         Rather, Adams was                                         



being asked questions by a member of the hospital staff (a records keeper).                                                                                                                                                                                                  



                                                In its brief to this Court, the State relies on case law holding that suspects                                                                                                                                                       



are not allowed to invoke their                                                                             Miranda  rights in                                              anticipation  that the police may try to                                                                                        



interrogate them - that a suspect's request for counsel (or a suspect's announcement of                                                                                                                                                                                                                    



their intention to remain silent) constitutes                                                                                                            an   invocation of                                               Miranda  rights only if it                                                         



                                                                                                                                                                                                                   2  

occurs at the initiation of, or during, custodial interrogation.                                                                                                                                                       



                                                In essence, the State is arguing that when the superior court found  that  

                                                                                                                                                                                                                                                                                                    



Adams had invoked his right  to  counsel,  the court's finding was either based on a  

                                                                                                                                                                                                                                                                                                              



mistaken understanding of the facts (i.e., that Adams made this statement in response to  

                                                                                                                                                                                                                                                                                                           



police questioning, rather than to a hospital employee), or a mistaken understanding of  

                                                                                                                                                                                                                                                                                                           



the law (i.e., that a suspect can invoke their Miranda rights before the police make any  

                                                                                                                                                                                                                                                                                                      



effort to conduct a custodial interrogation).  

                                                                                                                                                           



                                                But when the superior court made its finding - that Adams was speaking  

                                                                                                                                                                                                                                                                                    



to a patrol officer when he made his statement about wanting a lawyer  - the only  

                                                                                                                                                                                                                                                                                                  



testimony that the court had heard on this issue was the testimony given by Sgt. Wallner  

                                                                                                                                                                                                                                                                                       



            2  

                        See McNeil v. Wisconsin                                                               ,   501   U.S. 171, 182 n. 3; 111 S.Ct. 2204, 2211 n. 3; 115                                                                                                                           

L.Ed.2d 1158 (1991);                                                       Wilson v. Commonwealth                                                                  , 199 S.W.3d 175, 179 (Ky. 2006);                                                                                      People  

v.   Villalobos, 737 N.E.2d 639, 645 (Ill. 2000);                                                                                                               State v. Mata                                  , 668 N.W.2d 448, 468 (Neb.                                                      

2003).   



                                                                                                                                                  -  9 -                                                                                                                                           2540
  


----------------------- Page 10-----------------------

 at a pre-trial hearing.                                                                                                                At that hearing,                                                                                              Wallner told the court that "Mr.                                                                                                                                                                                    Adams had   



 invoked his ... constitutional right[] [to] legal counsel", and that this invocation of rights                                                                                                                                                                                                                                                                                                                                                                                                                 



 "had been conveyed to patrol officers that were with him."                                                                                                                                                                                                                                                                                                                 



                                                                                   The patrol officer (the one who actually heard Adams's statement about                                                                                                                                                                                                                                                                                                                                                       



wanting an                                                              attorney) did not testify until two weeks later,                                                                                                                                                                                                                                                             when he was called as a                                                                                                                              



witness at Adams's trial.                                                                                                                                  It is true that the patrol officer's testimony casts a different                                                                                                                                                                                                                                                         



 light on Adams's statement:                                                                                                                                                   according to the patrol officer, Adams was speaking to a                                                                                                                                                                                                                                                                                                    



hospital employee when he made the statement about wanting an attorney.                                                                                                                                                                                                                                                                                                                                                                                          But the State                                      



 did not ask the court to resolve the discrepancy between Wallner's testimony and the                                                                                                                                                                                                                                                                                                                                                                                                                                         



testimony given by the patrol officer, nor did the State ask the court to reconsider its                                                                                                                                                                                                                                                                                                                                                                                                                                           



 finding that Adams had invoked his right to counsel while speaking directly to the police.                                                                                                                                                                                                                                                                                                                                                                                                                                                           



                                                                                   Thus, even though there may be reason to doubt the superior court's finding                                                                                                                                                                                                                                                                                                                                            



 of fact, we must proceed under the assumption that the court's finding was correct.                                                                                                                                                                                                                                                                                                                                                                                                                                              



                                                                                   The next question is whether Wallner and Klinkhart violated the                                                                                                                                                                                                                                                                                                                                         Edwards  



rule when they asked Adams to confirm his earlier statement about wanting a lawyer.                                                                                                                                                                                                                                                                                                                                                                                                                                                          



                                                                                   We initially note that, from a constitutional standpoint, it may make little                                                                                                                                                                                                                                                                                                                                                         



 difference whether Adams was talking to the hospital employee or to                                                                                                                                                                                                                                                                                                                                                                               a   patrol officer   



when he made his statement about wanting an attorney.                                                                                                                                                                                                                                                                                            Under either version of events,                                                                                                                       



Adams's statement about wanting a lawyer was not made during custodial interrogation                                                                                                                                                                                                                                                                                                                                                                                  



-   and many courts have concluded that                                                                                                                                                                                                                               Edwards   is only triggered when                                                                                                                                                                                 a   person  



 invokes   their   right   to   counsel during a                                                                                                                                                                                                         custodial interrogation.                                                                                                                                   Thus,   Wallner   and  



Klinkhart might have been permitted to ask Adams to clarify his                                                                                                                                                                                                                                                                                                                                                      position before they                                                                              



 commenced the first custodial interrogation.                                                                                                                                                                                                                              See the discussion of these issues in Wayne                                                                                                                                                                                  



R.  LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr,                                                                                                                                                                                                                                                                                                                        Criminal Procedure                                                                                                                (4th  



 ed. 2015),  6.9(g), Vol. 2, p. 976, and the cases collected in footnote 36.                                                                                                                                                                                                                                                                                                                                                                                         



                                                                                                                                                                                                                                                         -   10 -                                                                                                                                                                                                                                                       2540
  


----------------------- Page 11-----------------------

                                                                We need not decide this question because, even assuming that Wallner and                                                                                                                                                                                                                                                                     



Klinkhart violated                                                                   Edwards  when they asked Adams to confirm that he wanted a lawyer,                                                                                                                                                                                                                              



we   are   convinced   that   this   violation   did   not   taint   Wallner's   ensuing interview                                                                                                                                                                                                                                                                                                     with  



Adams.    The record - in particular,                                                                                                                                                    the video recording of the interaction between                                                                                                                                             



Adams and the two officers - shows that it was Adams's idea to talk with Wallner, and                                                                                                                                                                                                                                                                                                                       



that Adams's conversation with Wallner took place at Adams's initiative.                                                                                                                                                                                                                                                                                      



                                                                 Shortly after Wallner and Klinkhart entered the room and woke Adams,                                                                                                                                                                                                                                                   



Adams re-affirmed that he wanted a lawyer.                                                                                                                                                                                        Wallner and Klinkhart did not try to                                                                                                                                             



dissuade Adams.                                                                   Rather, the two officers were in the process of leaving the room when                                                                                                                                                                                                                                             



Adams affirmatively asked Wallner                                                                                                                                               to   stay   behind and talk with him.                                                                                                                                            Adams told   



Wallner, "I want an attorney, but I'd like [to] talk to you just a couple of minutes."                                                                                                                                                                                                                                                                                                                          



                                                                The video recording shows that Adams                                                                                                                                                                 was addressing Wallner,                                                                                                    to the   



exclusion of Klinkhart.                                                                                           Klinkhart understood this - because Klinkhart immediately                                                                                                                                                                                       



asked Adams if Adams wanted him to leave the room.                                                                                                                                                                                                                 When Adams told Klinkhart that                                                                                                           



this was, indeed, what he wanted, Klinkhart left the room without further delay.                                                                                                                                                                                                                                                                                                                



                                                                At   this   point,   Wallner   remained   in   the   room   with   Adams   at   Adams's  



express request.                                                              Wallner advised Adams of his                                                                                                                      Miranda  rights (including Adams's right                                                                                                                                



to have an attorney present during any questioning).                                                                                                                                                                                                                  After Adams affirmed that he                                                                                                               



understood these rights, he again                                                                                                                                   told   Wallner, "I just want to talk to you for just a                                                                                                                                                                                            



minute."   



                                                                  Even when the police have violated                                                                                                                                                   Edwards,   a defendant's                                                                                                     resulting  



 statements   are   still admissible                                                                                                                 if   the   government   shows   that   those   statements   were  



 (1)   initiated by the defendant and (2) not tainted by the preceding                                                                                                                                                                                                                                                          Edwards  violation.   



See Dorsey v. United States                                                                                                            , 60 A.3d 1171, 1195-96 (D.C. App. 2013).                                                                                                                                                                           



                                                                 Given the facts of Adams's case, we conclude that the State has met that                                                                                                                                                                                                                                                                  



burden here.                                                   



                                                                                                                                                                                                 -   11 -                                                                                                                                                                                                2540
  


----------------------- Page 12-----------------------

                                                         Adams   alternatively   argues   that   even   if   there   was   no   violation   of   his  



Miranda   rights at the beginning of the interview,                                                                                                                                                                      Sgt.   Wallner violated his                                                                                    Miranda  



rights in the middle of the interview - when,                                                                                                                                                                    in response to Wallner's request for                                                                                                              



permission to search the cabin, Adams replied, "Sir, without sounding bad or anything,                                                                                                                                                                                                                                                   



 I don't know what to do right now.                                                                                                                     I need an attorney."                                                                        



                                                         According   to   Wallner's   later   testimony   at   the   evidentiary   hearing,   he  



understood   Adams   to   mean   that   he   wanted   to   consult   an   attorney   before   deciding  



whether to consent to a search of the cabin.                                                                                                                                          The superior court also interpreted Adams's                                                                                                          



remark in this fashion.                                                                           Here is the court's ruling on this issue:                                                                                                                               



                                                           

                                                                                       The Court                                   :    After all the discussion between [Adams]                                                                                                   

                                                          and Investigator Wallner,                                                                                        when Investigator Wallner says,                                                                                        

                                                          "Okay, given everything you've told us, I guess ... we ought                                                                                                                                                                          

                                                         to go search the cabin ... , and will you give us permission to                                                                                                                                                                                        

                                                          search the cabin?",                                                                  the defendant then says,                                                                                         "Oops,   well,  

                                                          I   hate   to   -   you   know,   I   hate   to   do   this   to   you,   I'm  

                                                          apologizing,   but   if   that's   going   to   happen,   I   do   want   a  

                                                          lawyer".     ...     And   so   Investigator   Wallner    apparently  

                                                          abandons   the   issue of trying to get consent to search the                                                                                                                                                                                   

                                                          cabin.    [And then] other things are talked about - again,                                                                                                                                                                         

                                                          completely   of   the   defendant's   own   choosing.     ...     [T]he  

                                                          investigator is [not] playing games with the defendant to get                                                                                                                                                                                    

                                                         him   to   say   some   more   things   instead   of   [getting   him]   a  

                                                          lawyer.   



                                                          This Court has reviewed both the transcript and the video recording of the                                                                                                                                                                                                                                



 interview,   and   these   materials   support   the   superior   court's   conclusion   that   Adams  



 invoked his right to consult an attorney with respect to the proposed search of the cabin,                                                                                                                                                                                                                                                            



 and not with respect to continuing his conversation with Wallner.                                                                                                                                                                                                                    



                                                          In sum, we conclude that, even assuming Wallner and Klinkhart violated                                                                                                                                                                                                                



Adams's  Miranda  rights (as interpreted in                                                                                                                                            Edwards) by initiating contact with Adams,                                                                                                               



                                                                                                                                                                             -   12 -                                                                                                                                                                         2540
  


----------------------- Page 13-----------------------

this   violation   did   not   taint   Adams's   ensuing interview                                                                                                                                                                                                                                                                                                  with   Wallner.     Wallner   and  



Klinkhart were leaving the room when Adams expressly asked Wallner to stay behind                                                                                                                                                                                                                                                                                                                                                                                                                               



 so that Adams could talk to him.                                                                                                                                                                                       We   further conclude that Adams's mid-interview                                                                                                                                                                                          



reference   to   needing   an   attorney   was   Adams's   answer   to   Wallner's   request   for  



permission to search the cabin, not a more general invocation of Adams's right to consult                                                                                                                                                                                                                                                                                                                                                                                                                     



 an attorney before continuing the interview with Wallner.                                                                                                                                                                                                                                                                                                             



                                         Did the officers violate Adams's Sixth Amendment right to counsel during                                                                                                                                                                                                                                                                                                                                                      

                                          the first interview?                               



                                                                                    When Wallner and Klinkhart interviewed Adams, Adams had already been                                                                                                                                                                                                                                                                                                                                                                      



 arraigned   on   several charges                                                                                                                                                                 arising from                                                                        the   chase   down   the   highway,   and   from  



Adams's resistance to the police when they were finally successful in stopping his car.                                                                                                                                                                                                                                                                                                                                                                                                                                                                       



                                                                                    Those charges - reckless driving, driving under the influence, failure to                                                                                                                                                                                                                                                                                                                                                                                



 stop at the direction of a law enforcement officer, and resisting arrest - were filed in a                                                                                                                                                                                                                                                                                                                                                                                                                                                        



 separate case in the Anchorage district court (File No. 3AN-07-8263 CR).                                                                                                                                                                                                                                                                                                                                                                                                   At Adams's   



 arraignment, the district court appointed an attorney to represent him in that Anchorage                                                                                                                                                                                                                                                                                                                                                                                               



 case.    



                                                                                    Adams acknowledges that the Sixth Amendment right to counsel is case-                                                                                                                                                                                                                                                                                                                                                                



 specific - and that the appointment of counsel in one criminal case does not extend to                                                                                                                                                                                                                                                                                                                                                                                                                                                       



 a defendant's other uncharged criminal matters that are factually and legally unrelated.                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



See Carr v. State                                                                                         , 840 P.2d 1000, 1005 (Alaska App. 1992).                                                                                                                                                                                                                                  But Adams argues that the                                                                                                                         



 driving and resisting arrest charges in his Anchorage case are so closely related to the                                                                                                                                                                                                                                                                                                                                                                                                                                             



Palmer murder charge that the police could not interview Adams without obtaining the                                                                                                                                                                                                                                                                                                                                                                                                                                                  



 consent of his attorney in the Anchorage case.                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                            -   13 -                                                                                                                                                                                                                                                            2540
  


----------------------- Page 14-----------------------

                                  It is true that Adams's driving offenses led to the discovery of Johnston's                                                                                    



body in his trunk.                            But that was the only connection between the Anchorage charges and                                                                                                  



the later murder charge.                                          The   Anchorage charges relied on different facts from the                                                                                       



murder charge, and the elements of these charges did not overlap.                                                                                                          We therefore hold                    



that, even though an attorney had been appointed to represent Adams in the Anchorage                                                                                                            



case, Wallner and Klinkhart could interview Adams about the murder without obtaining                                                                                                                 



this attorney's consent.                                     



                                                                                                                                                                                                   

                 Adams's claim that his waiver of Miranda rights at the beginning of the  

                                                                                                                

                first interview was not knowing and intelligent  



                                                                                                                                                                                                                  

                                  In addition to the arguments addressed in the preceding section of this  



                                                                                                                                                                                                                 

opinion, Adams also argues that his waiver of Miranda rights at the beginning of the first  



                                                                                                                                                                                                                     

interview was not knowing or intelligent.  Adams points out that he was drunk when he  



                                                                                                                                                                                                        

was arrested, that he was injured when his car crashed (after Adams ran  the  vehicle  



                                                                                                                                                                                                         

across the spike strips on the highway), and that the police subdued him with pepper  



                                                                                                                                                                                                  

spray and a Taser.                                    Adams contends that,  given these circumstances,  his ostensible  



                                                                                                                                                                                                               

waiver of his  Miranda  rights at the beginning of the interview could not have been  



                                                              

knowing and intelligent.  



                                                                                                                                                                                                     

                                  But Adams did not raise this claim in the superior court.  Adams concedes  



                                                                                                                                                                                                              

that he never raised this claim as a ground of suppression, but he asserts that the State  



                                                                                                                                                                                                        

raised this issue when the State pointed out to the superior court that Adams was advised  



                                                                                                                                                                                                         

of his Miranda rights at the beginning of the interview, and that he waived them.  Adams  



                                                                                                                                                                                                                

argues  that,  "[b]ecause  the  State  raised  the  [issue]  of  waiver,  the  trial  court  was  



                                                                                                                                                                                                                

necessarily  [required  to]  determin[e]  whether  [Adams's]  waiver  was  intelligent  and  



                                                                           

knowing."  We do not agree.  



                                                                                                      -   14 -                                                                                                 2540
  


----------------------- Page 15-----------------------

                                                              A defendant who seeks suppression of statements made to the police must                                                                                                                                                                                                                                                  



inform the trial court of the grounds for suppression.                                                                                                                                                                                              The fact that the parties mention                                                                                   



a   Miranda   waiver   in   their   trial   court   pleadings,   or   even   the   fact   that   the   State  



affirmatively relies on a                                                                               Miranda  waiver when it responds to a defense motion seeking                                                                                                                                                                                                       



 suppression of statements made during custodial interrogation,                                                                                                                                                                                                                                         does not put the trial                                                            



court on notice that the defendant is attacking the validity of the                                                                                                                                                                                                                                  Miranda  waiver.    



                                                              This type of suppression claim is waived if it is not raised in the trial court.                                                                                                                                                                                                                                                                  



See  Alaska Criminal Rule 12(b) and (e);                                                                                                                                                Snyder v. Division of Motor Vehicles                                                                                                                                         , 43 P.3d         



 157, 161 n. 9 (Alaska 2002).                                                                                                          We therefore conclude that Adams has waived any claim                                                                                                                                                                                        



that his                          Miranda  waiver was invalid.                                                                                                            



                              Adams's   claim   that   his   statements   during   this   first   interview   were  

                               involuntary  



                                                              Adams    argues    that    his    statements    during    this    first    interview    were  



involuntary.   In support of this argument, Adams relies on the same facts described in the                                                                                                                                                                                                                                                                                                    



preceding section of this opinion:                                                                                                                      that he was drunk when he was arrested, that he was                                                                                                                                                                                



injured when his car crashed, and that the police subdued him with pepper spray and a                                                                                                                                                                                                                                                                                                                  



Taser.   Adams asserts that, given these circumstances, the statements he made during the                                                                                                                                                                                                                                                                                                      



 first police interview must have been involuntary.                                                                                                                                                                                  



                                                              But as this Court noted in                                                                                           Edwards v. State                                                               , 842 P.2d 1281, 1285 (Alaska                                                                           



App. 1992), and again in                                                                                        State v. Garrison                                                                  , 128 P.3d 741, 750 (Alaska App. 2006), the                                                                                                                                                 



determination   of   whether   a   statement   is   involuntary   "rests   in   large   measure   on   the  



 subjective effect of the police conduct on the suspect's will."                                                                                                                                                                                                                          



                                                              Statements may be involuntary if police officers, through threats or other                                                                                                                                                                                                                                             



coercive measures,                                                                         "undermine a suspect's will to resist and elicit a confession                                                                                                                                                                                                                                 that  



                                                                                                                                                                                          -   15 -                                                                                                                                                                                       2540
  


----------------------- Page 16-----------------------

would otherwise not be freely given."                                                 Malloy v. State                    , 1 P.3d 1266, 1276 (Alaska App.                                  



2000);   Edwards ,   842 P.2d at 1285.                                                     But even when the record reveals potentially                                       



coercive circumstances, a suspect's statements will be voluntary so long as the suspect's                                                                                        



will has not been overborne.                                        



                               For example, in                    Edwards, the defendant argued that his statement to police                                                             



officers was involuntary because the officers threatened him with immediate arrest on                                                                                                           

                                                                                                       3    We found  that, despite this threat, the  

a murder charge if he failed to talk to them.                                                                                                                                                 



defendant's statements were voluntary:  "The main impediment to ... a finding [that the  

                                                                                                                                                                                               



statements were involuntary] is that Edwards, despite police pressure to talk, said nothing  

                                                                                                                                                                                     



                                                                                                      4  

to directly inculpate himself in [the crime]."                                                             Likewise, in Malloy, we found that the  

                                                                                                                                                                                              



defendant's statements were voluntary,  despite police threats,  primarily because the  

                                                                                                                                                                                              



                                                                                                                     5  

defendant said nothing to directly inculpate herself.  

                                                                                                    



                               The facts of Adams's case lead to the same conclusion.  Adams spoke at  

                                                                                                                                                                                                  



length to Sgt. Wallner, but he consistently maintained his own innocence and repeatedly  

                                                                                                                                                                              



asserted  that  Stacey  Johnston  had  been  murdered  by  drug dealers.                                                                                               We  therefore  

                                                                                                                                                                                



conclude that Adams's statements were voluntary.  

                                                                                                                     



               Adams's second and third police interviews  

                                                                                             



                               Adams also sought suppression of his second and third police interviews,  

                                                                                                                                                                             



but  solely  on  the  ground  that  these  later  interviews  were  tainted  by  the  allegedly  

                                                                                                                                                                                 



improper  first  interview.                                       Because  we  have  rejected  Adams's  attacks  on  the  first  

                                                                                                                                                                                            



        3  

               Edwards , 842 P.2d at 1285.                                    



        4  

                           

               Ibid.  



        5  

                                                                     

               Malloy , 1 P.3d at 1276.  



                                                                                                        

                                                                                            -  16 -                                                                                        2540
  


----------------------- Page 17-----------------------

interview,   we   conclude   that   there   is   no   reason   to   suppress   the   second   and   third  



interviews.     



                               Adams's claim                                                                 that   his trial attorney incompetently failed to raise a                                                                                                                                                                                                              

                                confrontation   clause   objection   to   the   testimony   of   the   state   medical  

                                examiner  



                                                                Two days after Stacey Johnston's body was found in Adams's car, State                                                                                                                                                                                                                                                               



Medical Examiner Franc Fallico performed an                                                                                                                                                                                        autopsy.     Dr.   Fallico concluded that                                                                                                                             



Johnston's death was a homicide, and that her death was the result of multiple internal                                                                                                                                                                                                                                                                                                 



injuries caused by blunt-force trauma.                                                                                                                                                 



                                                                But by the time of Adams's trial, Dr. Fallico had died.                                                                                                                                                                                                       The State therefore                                



called Deputy Medical Examiner Robert Whitmore to testify about the autopsy results.                                                                                                                                                                                                                                                                                                                                           



                                                                The State did not attempt to introduce the report itself.                                                                                                                                                                                                        However, both the                                                           



prosecutor and Adams's defense attorney asked Dr. Whitmore to offer his analysis of the                                                                                                                                                                                                                                                                                                                      



physical observations and the laboratory test results recorded in the report.                                                                                                                                                                                                                                                                                        



                                                                Based on the information recorded in the autopsy report, Dr. Whitmore                                                                                                                                                                                                                                      



offered his opinion concerning the manner of Johnston's death (                                                                                                                                                                                                                                              i.e., homicide) and the                                                                         



mechanism of her death (injuries caused by blunt-force trauma).                                                                                                                                                                                                                                                     



                                                                After   Adams   was   found   guilty   of   murder   (but   before   his   sentencing),  



Adams's trial attorney, Scott Sterling, filed a motion                                                                                                                                                                                                             for a new trial.                                                             In this motion,                       



 Sterling   asserted   that   he   had   incompetently   failed   to   raise   a   confrontation   clause  



objection to Dr. Whitmore's testimony.                                                                                                                                                        



                                                                In his supporting affidavit, Sterling asserted that he should have objected                                                                                                                                                                                                                                        



to   Whitmore's testimony after it became clear that Whitmore had not performed the                                                                                                                                                                                                                                                                                                                         



autopsy himself, and that Whitmore would be relying on the photographs, laboratory test                                                                                                                                                                                                                                                                                                                    



results,   and   other   materials   that   accompanied   the   autopsy   report.     Sterling further   



                                                                                                                                                                                                 -   17 -                                                                                                                                                                                              2540
  


----------------------- Page 18-----------------------

declared that his failure to object was the result of ignorance - that "[he] did not realize                                                                                                                                                                                                             



nor understand in advance of the trial, nor during the trial, that there existed a credible                                                                                                                                                                                                     



legal argument ... to object to Dr. Whetmore's [                                                                                                                                  sic] testimony under the [decision in]                                                                                               



 Crawford v. Washington                                                                      and other [related] cases[.]"                                                                              



                                                  Sterling concluded that his failure to object to Dr. Whitmore's testimony                                                                                                                                                                  



constituted   ineffective   assistance   of   counsel,   and   that   his   incompetence   materially  



prejudiced Adams's interests.                                                                                  



                                                  The                     superior                              court                      concluded                                    that                  Sterling's                                affidavit                             (and                    the  



accompanying   memorandum   of   law   discussing   the   confrontation   clause)   failed   to  



establish a prima facie case of ineffective assistance of counsel.                                                                                                                                                                                The   court therefore   



denied Adams's motion for a new trial.                                                                                                              Now, on appeal, Adams renews his argument                                                                                                 



that Sterling was incompetent for failing to object to Dr. Whitmore's testimony.                                                                                                                                                                                                                          



                         How the confrontation clause limits the government's ability to present                                                                                                                                                                            

                         expert testimony when the expert's analysis relies on observations or data                                                                                                                                                                                      

                         generated by other people who do not testify at the defendant's trial                                                                                                                                                                                            



                                                  Sterling's request for a new trial was based on his assertion that, under                                                                                                                                                                                

                                                                                              6  and ensuing cases interpreting the confrontation clause of the  

 Crawford v. Washington                                                                                                                                                                                                                                                                                              



 Sixth Amendment,  there was  a  "credible argument" that Dr.  Whitmore's testimony  

                                                                                                                                                                                                                                                                                            



violated Adams's  right of confrontation.                                                                                                                           But the existence of a "credible" or non- 

                                                                                                                                                                                                                                                                                                               



frivolous argument is not enough to justify Adams's request for a new trial.  

                                                                                                                                                                                                                                                                                         



                                                  As we explained in State v. Steffensen, 902 P.2d 340, 341-42 (Alaska App.  

                                                                                                                                                                                                                                                                                                               



 1995), many "colorable" legal arguments turn out to have no merit.  Thus, when a claim  

                                                                                                                                                                                                                                                                                                          



of ineffective assistance of counsel is based on an attorney's failure to pursue a motion,  

                                                                                                                                                                                                                                                                                                



             6  

                         541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).                                                                                                                                              



                                                                                                                                                      -   18 -                                                                                                                                                  2540
  


----------------------- Page 19-----------------------

the defendant must show (1) that the proposed motion                                                                                                                                                                                                                                                                                           would ultimately have been                                                                                                                  



 successful, (2) that any competent attorney would have pursued the proposed motion,                                                                                                                                                                                                                                                                                                                                                                                       



 and (3) that there is reason to believe that the ultimate outcome of the proceedings would                                                                                                                                                                                                                                                                                                                                                                                          



have been different had the motion been granted.                                                                                                                                                                                                                                                  Steffensen, 902 P.2d at 342.                                                                                                                                                 



                                                                               In   Vann v. State                                                                             , 229 P.3d 197 (Alaska App. 2010) (a case decided a little                                                                                                                                                                                                                                                 



 over a year after Adams's trial), this Court addressed the question of how a defendant's                                                                                                                                                                                                                                                                                                                                                     



rights under the confrontation clause might limit the government's                                                                                                                                                                                                                                                                                                                                             ability to present                                            



 expert testimony when the expert's                                                                                                                                                                                       opinion is based on observations and/or testing                                                                                                                                                                                                         



performed by other people who do not testify.                                                                                                                                                                                                                                  We summarized the prevailing view this                                                                                                                                                                                



way:   



                                                                                

                                                                                                                      We have found several cases where courts concluded                                                                                                                                                                                                        

                                                                               that a defendant's right of confrontation was denied when the                                                                                                                                                                                                                                                                              

                                                                               live witness's testimony simply recapitulated (and sometimes                                                                                                                                                                                                                                   

                                                                               vouched for) the analysis performed by an absent witness. ...                                                                                                                                                                                                                                                                                                   



                                                                                                                      On the other hand, numerous courts have concluded                                                                                                                                                                                                        

                                                                               that a defendant's right of confrontation is satisfied when an                                                                                                                                                                                                                                                                                

                                                                               expert witness offers                                                                                                     their own                                                     analysis or conclusion, even                                                                                                             

                                                                              when   that   analysis   or   conclusion   is   based   on   test   results  

                                                                               derived from testing performed by someone else.                                                                                                                                                                                                                                                 

                                                                                                                       .   .   .  



                                                                                                                       [For example, in] cases where the                                                                                                                                                                           trier of fact must                                                         

                                                                               ascertain the cause of someone's death, courts have allowed                                                                                                                                                                                                                                                     

                                                                               medical examiners to give their opinion concerning the cause                                                                                                                                                                                                                                                                

                                                                               of death even though that opinion was based on the physical                                                                                                                                                                                                                                                  

                                                                               observations and laboratory results of an autopsy performed                                                                                                                                                                                                                                    

                                                                              by another person:                                                                                          see United States v. De La Cruz                                                                                                                                                          , 514 F.3d                    

                                                                                121, 132-34 (1st Cir. 2008);                                                                                                                                            People v. King                                                                                     , unpublished,   

                                                                               2010 WL 98693, *3-6 (Mich. App. 2010).                                                                                                                                                                                                                    



  Vann, 229 P.3d at 206-07 (some citations omitted).                                                                                                                                                                                                                                                           



                                                                                                                                                                                                                                             -   19 -                                                                                                                                                                                                                                           2540
  


----------------------- Page 20-----------------------

                                                                   In   Vann, we adopted the following test for analyzing these confrontation                                                                                                                                                                                                                           



clause   claims:    "[W]hen the government's expert is simply a conduit for an absent                                                                                                                                                                                                                                                                                                                     



witness's   analysis,   [there   is]   a   violation   of   the   confrontation   clause;   but   when   the  



government's expert offers their                                                                                                                                own  analysis, [even though] based in part on test data                                                                                                                                                                                               



obtained from other people, ... the confrontation clause is satisfied."                                                                                                                                                                                                                                                                          Id.  at 206.                                                



                                                                  We acknowledged the danger that the underlying test data might be tainted                                                                                                                                                                                                                                                                



by mistake, improper procedures, or even outright fraud.                                                                                                                                                                                                                                But we clarified that, standing                                                                           



 alone, the mere speculative possibility of error in the underlying testing does not create                                                                                                                                                                                                                                                                                                                  



 a confrontation clause issue.                                                                                                               Id.  at 210-11.                                                            



                                                                    Vann  did not deal with autopsy testimony, but the approach taken in                                                                                                                                                                                                                                                                         Vann  



reflects the majority approach among courts that have considered confrontation clause                                                                                                                                                                                                                                                                                                                       



objections to autopsy testimony.                                                                                                                                          This majority approach is exemplified by the New                                                                                                                                                                                       



Mexico Supreme Court's decision in                                                                                                                                                   State v. Navarette                                                                           , 294 P.3d 435 (N.M. 2013).                                                                                                                       



                                                                   The  Navarette  court drew a distinction between two different aspects of an                                                                                                                                                                                                                                                                                  



 autopsy report.                                                            On the one hand, an autopsy report will often record "objective markers                                                                                                                                                                                                                                                



that any third [person] can examine".                                                                                                                                                 Id.  at 443.                                           On the other hand, the report may also                                                                                                                                    



include   a   type   of   observation   that   really   qualifies   as   an   analysis   -   for   example,   a  



pathologist's unsupported assertion that they observed (or did not observe) gun-powder                                                                                                                                                                                                                                                                                          



 stippling on the deceased's skin.                                                                                                                               Ibid.   



                                                                   The   difference,   the   New   Mexico   court   declared,   is   that   some   of   the  



observations   in   an   autopsy   report   "are   not   based   on   any   scientific   technique   that  



produces raw data, but [rather] depend entirely on the subjective interpretation of the                                                                                                                                                                                                                                                                                                                                    



observer".   Ibid.   These subjective observations are not admissible unless the defendant                                                                                                                                                                                                                                                                                                



has the opportunity to confront the witness who                                                                                                                                                                                                       made them.                                                      Ibid.    But the result is                                                                                  



different when the government's witness offers their own opinion, based on raw data                                                                                                                                                                                                                                                                                                                                  



collected during the autopsy:                                                                                                                  



                                                                                                                                                                                                        -  20 -                                                                                                                                                                                                       2540
  


----------------------- Page 21-----------------------

                       

                                                                                                             

                     [Not]   all  material  contained  within  an  autopsy  file   is  

                                                                                                 

                     testimonial and therefore inadmissible.   Without  attempting  

                                                                                                             

                     to catalogue all material in a file that could be admissible, we  

                                                                                              

                     note  that  an  expert  witness  may  express  an  independent  

                                                                                                          

                     opinion  regarding  his  or  her  interpretation  of  raw  data  

                                                                                                              

                     without offending the Confrontation Clause.  For example, [a  

                                                                                                         

                     pathologist who is] shown the autopsy photographs ... [may  

                                                                                                    

                     express] his own opinion about ...  entry and exit wounds,  

                                                                                                            

                     explaining the basis for his opinion[, as long as he does] not  

                                                                                                            

                     simply  parrot  the  opinion  or  subjective  statement  of  the  

                                                                                                           

                     pathologist   who   performed   the   autopsy   and   took   the  

                     photographs.  



                                                                          

Navarette, 294 P.3d at 443 (citations omitted).  



                                                                                                                                   

                     The West Virginia Supreme Court reached a similar conclusion in State v.  



                                                                                                                                

Kennedy,  735  S.E.2d  905  (W.Va.  2012).                            The  West  Virginia  court  held  that  the  



                                                                                                                 

confrontation clause bars the admission of an autopsy report prepared by a non-testifying  



                                                                                                                                

pathologist, and further bars the testimony of a pathologist who did not  perform  the  



                                                                                                                                

autopsy  if  this  pathologist  is  serving  as  a  "transmitter"  for  the  opinions  of  the  



                                                                                                                                 

non-testifying pathologist who performed the autopsy.  Id.  at  920-21.   However, the  



                                                                                                                             

court  ruled  that  the  confrontation  clause  does  not  bar  the  second  pathologist  from  



                                                                                                                        

testifying  about  their  own  opinions,  even  if  those  opinions  are  based  on  autopsy  



                                                                                                                      

photographs and physical evidence collected during the autopsy.  Id.  at 921.  



                                                                                                                            

                     See also United States v. Williams, 740 F.Supp.2d 4, 9 (D. D.C. 2010)  



                                                                                                                     

("[The government's witness] may testify as to his own independent opinion concerning  



                                                                                                                                 

the cause or manner of [the victim's] death, even if that opinion is based in part on the  



                                                                                                                           

inadmissible  autopsy  report.");   State  v.  Joseph,  283  P.3d  27,  29  (Ariz.  2012)  



                                                                                                                      

("[A] testifying medical examiner may offer an opinion based on an autopsy performed  



                                                                                                                                

by a non-testifying expert without violating the Confrontation Clause.   ...  Even if the  



                                                              -  21 -                                                         2540
  


----------------------- Page 22-----------------------

 autopsy report were itself 'testimonial,' [the witness] did not testify to any of [the earlier                                                                                                                                                                                                                                                                                                                                                                                                                                



pathologist's] conclusions.                                                                                                                                             ...   He testified instead to opinions he formed after reviewing                                                                                                                                                                                                                                                                 



 facts and photographs contained in the report.").                                                                                                                                                                                                     



                                                                                      We have examined the testimony that Dr. Whitmore gave at Adams's trial.                                                                                                                                                                                                                                                                                                                                                                                                             



Applying the legal test that we have just described,                                                                                                                                                                                                                                                                                               it appears that almost all of                                                                                                                                                             the  



 doctor's testimony would have been admissible even if Adams had raised a confrontation                                                                                                                                                                                                                                                                                                                                                                                   



 clause objection.                                                                                           



                                                                                      Much of Dr. Whitmore's testimony was devoted                                                                                                                                                                                                                                                                                  to   describing what an                                                                                                           



 autopsy is, what procedures normally take place before and during an autopsy, and what                                                                                                                                                                                                                                                                                                                                                                                                                                                



 a pathologist looks for.                                                                                                                          



                                                                                      Dr. Whitmore clarified that Dr. Fallico was the one who performed the                                                                                                                                                                                                                                                                                                                                                                                       



 autopsy of Stacey Johnston's body.                                                                                                                                                                                           Whitmore then referred at length to the photographs                                                                                                                                                                                                        



that were taken during the autopsy, to the results of toxicology testing that was done in                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



 connection with the autopsy,                                                                                                                                                                     and to the conclusions he (Whitmore) drew from this                                                                                                                                                                                                                                                                                       



 information.    Each time Dr. Whitmore offered opinions about what those photographs                                                                                                                                                                                                                                                                                                                                                                                                 



 and test results showed, and when he gave his ultimate opinion about the cause of Stacey                                                                                                                                                                                                                                                                                                                                                                                                                                   



Johnston's death, those opinions were based on his own analysis of the raw data.                                                                                                                                                                                                                                                                                                                                                                                                                                                       



                                                                                      It is true that, at six points in his lengthy testimony, Dr. Whitmore explicitly                                                                                                                                                                                                                                                                                                                                        



relied on Dr. Fallico's observations (as recorded in the autopsy report):                                                                                                                                                                                                                                                                                                                                                                                         that there were                                                      



no injuries to Johnston's                                                                                                                                          palms;   that Johnston was 67 inches tall and weighed 117                                                                                                                                                                                                                                                                                                                



pounds; that there were fractures on both sides of Johnston's ribs and multiple contusions                                                                                                                                                                                                                                                                                                                                                                                                         



between her ribs; that Johnston's body had older bruises that were healing; that there                                                                                                                                                                                                                                                                                                                                                                                                                                              



were injuries to Johnston's tongue; and that a cloudy pink liquid was present in her                                                                                                                                                                                                                                                                                                                                                                                                                                                           



 stomach.   



                                                                                      Conceivably, these particular answers might not have survived a confronta-                                                                                                                                                                                                                                                                                                                             



tion clause objection.                                                                                                                       But   given the wealth of information contained in the rest of                                                                                                                                                                                                                                                                                                                                            



                                                                                                                                                                                                                                                                  -  22 -                                                                                                                                                                                                                                                                  2540
  


----------------------- Page 23-----------------------

 Dr. Whitmore's testimony, a defense attorney would not be incompetent for failing to                                                                                                            



 object to these answers.                                Moreover, given the way Adams's case was litigated (                                                                      i.e., the   



prosecution and defense theories of the case), there is essentially no possibility that the                                                                                                    



 admission of these answers affected the verdict.                                                              



                               To   prevail in                  his   motion   for   a   new   trial,   Adams   had   to   show   that   no  



 competent criminal defense attorney would have failed to object to Dr.                                                                                                    Whitmore's  



 testimony on confrontation grounds, and also show that such an objection would have                                                                                                       

                                       7   But as we have just explained, the great majority of Dr. Whitmore's  

been successful.                                                                                                                                                           



 testimony  would  have  survived  a  confrontation  clause  objection  under  this  Court's  

                                                                                                                                                                                    



 decision in Vann, and under the similar tests adopted by several other courts from around  

                                                                                                                                                                                      



 the country.  

                               



                               Even if Dr. Whitmore's testimony would be excluded under some courts'  

                                                                                                                                                                                      



 interpretation  of  the  confrontation  clause,  this  would  merely  show  that  American  

                                                                                                                                                                               



jurisdictions disagree regarding the  admissibility of such testimony.                                                                                           The question is  

                                                                                                                                                                                                  



whether any competent criminal defense attorney practicing in Alaska would necessarily  

                                                                                                                                                                             



raise a confrontation clause objection to Dr. Whitmore's testimony.  The answer to this  

                                                                                                                                                                                              



 question is "no" - and this is true regardless of whether our decision in  Vann controls  

                                                                                                                                                                                    



 this issue or whether, instead,  Vann does not control and the law remains unsettled.  See  

                                                                                                                                                                                             



State v. Adams, 2012 WL 2308131, *3-5 (Ohio App. 2012), where the Ohio Court of  

                                                                                                                                                                                                 



 Appeals rejected a similar claim of ineffective assistance of counsel,  because of the  

                                                                                                                                                                                               



unsettled state of the law.  

                                                             



                               Thus, even though Adams's trial attorney was willing to accuse himself of  

                                                                                                                                                                                                  



 incompetence, Adams's motion for a new trial did not set forth a prima facie case of  

                                                                                                                                                                                                 



 attorney incompetence.  Accordingly, the superior court correctly denied that motion.  

                                                                                                                                                                                                    



        7  

                See State v. Steffensen                           , 902 P.2d at 341-42.                          



                                                                                            -  23 -                                                                                        2540
  


----------------------- Page 24-----------------------

              Was the superior court clearly mistaken when, at sentencing, it ordered                                                                

              that Adams would not be eligible for discretionary parole?                                                  



                            Adams was convicted                              of first-degree murder,                           and he therefore faced a                          



                                                                                      8  

sentence of 20 to 99 years' imprisonment.                                                                                                                                    

                                                                                          The superior court sentenced Adams to the  



                                                                                                                                                                         

maximum term - 99 years.   For the separate crime of evidence tampering, the court  



                                                                                                                                                                  

sentenced Adams to a consecutive term of 3 years.  Thus, Adams's composite sentence  



                                                                                                                                                              

was 102 years to serve.  In addition, the court exercised its power under AS 12.55.115  



                                                                                                                                                              

to eliminate Adams's eligibility for discretionary parole release during this composite  



                                                

term of imprisonment.  



                                                                                                                                                             

                            On appeal,  Adams argues that the superior court abused its sentencing  



                                                                                                                                                      

discretion when it restricted him from applying for discretionary parole.  



                                                                                                                                                                               

                            First, Adams argues that the superior court failed to adequately explain its  



                                                                                                                                                             

decision to eliminate his eligibility for discretionary parole.   But the State's sentencing  



                                                                                                                                                                               

memorandum contained a lengthy explanation of why the State was asking the court to  



                                                                                                                                                                           

impose this parole restriction, and the sentencing judge declared that her decision was  



                                                                                                                   

based on the factors listed in the State's memorandum:  



                              

                                                                                                                                     

                                          The Court:   Every sentence of the State's argument  

                                                                                                                                             

                            about           why           [Mr.          Adams]               should             be       ineligible             [for  

                                                                                                                                                

                            discretionary parole] ...  is [supported by] the proof  in this  

                                                                                                                                                    

                            case.  And ... almost all of the cases that [the State] refer[s] to  

                                                                                                                                                     

                            [in its pleading] are less serious than [Mr. Adams's] case.  



                                                                                                                                                                         

                            In the relevant portion of the State's sentencing memorandum, the State  



                                                                                                                                                              

asserted that Adams's killing of Johnston was an act of "gratuitous violence", committed  



       8  

              AS 12.55.125(a).                    



                                                                                   -  24 -                                                                               2540
  


----------------------- Page 25-----------------------

  for "no [apparent] reason".                                                                                                                                 The State noted that Adams "beat her with such force that                                                                                                                                                                                                                                                                  



 her face was not recognizable".                                                                                                                                                       



                                                                              The State also noted that Adams had an "extensive history of violence".                                                                                                                                                                                                                                                                                                                                                            



 Adams committed a brutal homicide when he was a teenager (see this Court's description                                                                                                                                                                                                                                                                                                                                                          



  of this crime in                                                                            Cassell   v.   State,   645 P.2d 219,                                                                                                                                                                     220 (Alaska App.                                                                                             1982)),   and he   



  committed other acts of violence against a former wife and a former girlfriend.                                                                                                                                                                                                                                                                                                                                                                                 



                                                                              Finally, the State contended that Adams's history within the justice system,                                                                                                                                                                                                                                                                                                         



  and his repeated criminal acts, showed that he had little prospect of rehabilitation.                                                                                                                                                                                                                                                                                                                                                                                           



                                                                              These assertions, expressly adopted by the sentencing judge, constitute a                                                                                                                                                                                                                                                                                                                                               



  sufficiently detailed explanation of the judge's decision to impose the parole restriction.                                                                                                                                                                                                                                                                                                                                                                                                                    



                                                                              Adams argues in the alternative that even if the judge gave a sufficiently                                                                                                                                                                                                                                                                              



  detailed explanation of her decision,                                                                                                                                                                              this explanation does                                                                                                             not adequately justify the                                                                                                         



judge's decision.                                                                                 We disagree.                                                                       



                                                                              As   the   sentencing judge                                                                                                                    noted   in   her   sentencing remarks,                                                                                                                                                                      Adams   had  



  committed a prior homicide, and he had two other felony convictions (one for assault,                                                                                                                                                                                                                                                                                                                                                                           



 the other for criminal mischief).                                                                                                                                                 Two of Adams's former domestic partners testified that                                                                                                                                                                                                                                               



 he committed acts of severe violence against them.                                                                                                                                                                                                                                                  The judge told Adams:                                                                      



                                                                               

                                                                                                                     The   Court:    [Y]ou really are an extreme danger                                                                                                                                                                                                                                             to  

                                                                              other persons.                                                                      ...    [F]or whatever reason, you just cannot                                                                                                                                                                           

                                                                              internalize and                                                                        act upon the requirement[s] of conforming                                                                                                                                                 

                                                                              your   conduct   to   the   law   [and]   respecting   other   people's  

                                                                             privacy and their right to life.                                                                                                                                        



                                                                              Adams does not directly challenge any of the judge's remarks, other than                                                                                                                                                                                                                                                                                                                              



 to argue that no one can know for certain whether he will continue to be dangerous                                                                                                                                                                                                                                                                                                                                                               



  34 years from now (                                                                                              i.e., when he would have been eligible to apply for discretionary                                                                                                                                                                                                                                               



 parole if the sentencing judge had not restricted his parole eligibility).                                                                                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                        -  25 -                                                                                                                                                                                                                                      2540
  


----------------------- Page 26-----------------------

                                                                But Adams was in his mid-forties when he committed the murder in this                                                                                                                                                                                                                                                                      



case, and (according to the pre-sentence report and the testimony at his trial) Adams has                                                                                                                                                                                                                                                                                                                    



committed a number of serious assaultive crimes since he was a teenager.                                                                                                                                                                                                                                                                                  In light of this                                  



record, the sentencing judge concluded that Adams's only prospect for rehabilitation was                                                                                                                                                                                                                                                                                                                   



"the faint hope that ... [someone] might actually turn out ... different than anticipated."                                                                                                                                                                                                                                                                                                                                    



                                                                The   judge's   finding on                                                                                          this   issue   is   supported   by   the   record,   and   we  



therefore conclude that the judge was not clearly mistaken when she denied parole                                                                                                                                                                                                                                                                                                             



eligibility to Adams.                                                                           



                                 Conclusion  



                                                                The judgement of the superior court is AFFIRMED.  

                                                                                                                                                                                                                                                                                                                            



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