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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: email@example.com IN THE COURT OF APPEALS OF THE STATE OF ALASKA
|EVERETT E. BRYANT,||)|
|) Court of Appeals No. A-8375|
|Appellant,||) Trial Court No. 1KE-96-249 CR|
|) O P I N I O N|
|STATE OF ALASKA,||)|
|Appellee.||) No. 2044 April 14, 2006|
Appeal from the Superior Court, First Judi cial District, Ketchikan, Larry C. Zervos, Judge. Appearances: Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant. Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. M rquez, Attorney General, Juneau, for the Appellee. Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges. STEWART, Judge. We remanded this case to the superior court for additional findings on two issues relating to Bryants claim of ineffective assistance of counsel. Bryant raised these issues in his motion for a new trial that followed his conviction on one count of sexual abuse of a minor.1 We have reviewed the superior courts additional findings and affirm the superior courts denial of Bryants motion for a new trial. Therefore, we affirm Bryants conviction. We discussed the factual and procedural history of the case in an earlier opinion2 and will not repeat the facts summarized there. The first issue we address is Bryants claim that his trial attorney was ineffective because he did not call Jim Lewis to testify as a witness. Bryant claimed that Lewis could testify to two pieces of information that were pivotal to his defense (1) that the victims mother reported Bryant was sexually abusing the victim one month before the allegations were reported to state troopers, and (2) that the victims mother had told Lewis she intended to take [Bryant] for everything he had. Bryants trial attorney did not recall that Lewis would offer this testimony if called. On remand, Superior Court Judge Larry C. Zervos considered the credibility of the witnesses on this disputed issue and found that Bryant had not met his burden of proof on the issue of whether Bryants trial attorney knew, or reasonably should have known, of the potential testimony that Lewis might provide. Judge Zervoss findings are not clearly erroneous.3 Because Bryant did not meet his burden of proof on this issue, this claim fails. Next, we address Bryants remaining claim that his trial attorneys failure to offer into evidence a certificate Bryant received in 1969 for completing a course during Navy SEAL4 training about nuclear weapons was ineffective. Bryant testified at trial. During Bryants direct examination, Bryants attorney asked Bryant about his military service. Bryant testified that he had served in the Navy for a few years in the late 1960s and obtained a top secret clearance for working with nuclear weapons. He added that the military gave me my own private nuclear bomb. During cross-examination, the prosecutor asked Bryant what he meant when you said that they gave [a nuclear bomb] to you? Bryant said that they didnt actually give it to me to have, and later, that they didnt give it to me to keep. There was no further testimony about nuclear bombs. During final argument, the subject of nuclear weapons was not mentioned by either party. The prosecutor said nothing about Bryants military service. For his part, Bryants attorney asked the jury to consider Bryants Navy service with the SEALs and his security clearance when evaluating his credibility. The prosecutor did not challenge this request because, in rebuttal closing argument, the prosecutor again said nothing about Bryants Navy service or security clearance. Bryant argues that it was incompetent for his trial attorney not to offer the Navy certificate into evidence in an attempt to rehabilitate his credibility. On remand, Judge Zervos concluded that the certificate would not have been admissible because it was hearsay. Thus, it could not have been incompetent to fail to offer it. We need not decide whether Judge Zervoss conclusion on the admissibility of the certificate is correct because we agree with his conclusion that Bryant was not prejudiced by the failure of his attorney to offer the certificate into evidence. The prosecutors questioning did not imply that Bryant did not serve in the Navy nor as a SEAL. Nor did the prosecutor question whether Bryant had a security clearance. Instead, the prosecutor challenged Bryants assertion that Bryant had his own private nuclear bomb. Under cross-examination, Bryant qualified his claim of outright possession, and the prosecutor left the issue there. The certificate, if admitted, would have shed no light on Bryants bomb-possession claim because it merely memorialized Bryants attendance at a one-week course on nuclear weapons and said nothing about whether the military issued a bomb to Bryant. The certificate confirmed that Bryant was in the Navy and did attend a one-week course at the Nuclear Weapons Training Center in Norfolk, Virginia. But the prosecutor did not challenge Bryants service in the Navy or his attendance at any Navy course. As we pointed out above, the prosecutor never argued that Bryants credibility was suspect because of his bomb- possession claim. Instead, the prosecutor attacked Bryants credibility for reasons entirely unrelated to Bryants Navy service. We conclude that, even if the certificate had been introduced, there is no reasonable possibility that Bryants jury would have reached a different result. Thus, even assuming that Bryants attorney offered the exhibit and it would have been admitted, Bryant has not shown that he was prejudiced by the failure to offer the certificate.5 Therefore, Bryant did not establish a claim of ineffective assistance of counsel warranting a new trial. Conclusion The judgment of the superior court is AFFIRMED. _______________________________ 1 AS 11.41.434(a)(1). 2 See Bryant v. State, 115 P.3d 1249 (Alaska App. 2005). 3 See Tucker v. State, 892 P.2d 832, 834 (Alaska App. 1995). 4 SEAL is an acronym for Sea, Air, and Land. 5 See Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
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