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Bryant v. State (4/14/2006) ap-2044

Bryant v. State (4/14/2006) ap-2044

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878

) Court of Appeals No. A-8375
Appellant, ) Trial Court No. 1KE-96-249 CR
v. )
) O P I N I O N
Appellee. ) No. 2044 April 14, 2006
          Appeal  from the Superior Court,  First  Judi
          cial  District, Ketchikan, Larry  C.  Zervos,

          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
          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.

          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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