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Smith v. State (6/6/2008) ap-2171

Smith v. State (6/6/2008) ap-2171

     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
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) Court of Appeals No. A-9763
Appellant, ) Trial Court No. 3KN-03-236 CI
v. )
) O P I N I O N
Appellee. ) No. 2171 June 6, 2008
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Kenai, Charles  T.  Huguelet,

          Appearances:  Glenda Kerry, Assistant  Public
          Advocate,   and   Joshua  P.   Fink,   Public
          Advocate,   Anchorage,  for  the   Appellant.
          Kenneth  M.  Rosenstein,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.
          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.
          Ruple Marx Smith was convicted of kidnapping and raping
a  fourteen-year-old girl.1  A key part of the  evidence  against
Smith  at  trial was incriminating admissions that he made  to  a
state  trooper.   Smith  appealed to this court  raising  several
          issues, including a contention that the admissions he made to the
state  trooper  had been obtained in violation  of  his  Miranda2
rights.  In a split decision, this court concluded that Smith was
in  custody  when  the  state trooper questioned  him  about  the
kidnapping and sexual assault and that, because the state trooper
had  not  warned Smith of his Miranda rights during the custodial
interrogation,  the  State  had  obtained  Smiths   incriminating
admissions in violation of Miranda.3  We therefore concluded that
Smiths admissions had to be suppressed.4  We remanded the case to
the  trial  court to determine what other evidence needed  to  be
suppressed  as a fruit of the interview.5  The trial  court  then
needed to decide whether Smith was entitled to a new trial.6
          On  remand,  the trial court found that  the  error  in
admitting  Smiths  statements was  not  harmless.   We  therefore
reversed  Smiths convictions.7  The State petitioned for hearing.
The Alaska Supreme Court granted the petition.  The supreme court
concluded  that  Smith  was  not in  custody  when  he  made  the
incriminating  admissions  to  the  state  trooper.8   The  court
therefore  held that Smiths statements had not been  obtained  in
violation of his Miranda rights.  The court reversed our decision
and reinstated Smiths convictions.9
          Smith  then  filed  an application for  post-conviction
relief.   In that application Smith argued that, when  the  State
filed its petition for hearing in the Alaska Supreme Court on the
Miranda  issue,  Smiths appellate attorney  provided  ineffective
assistance  of  counsel.  Specifically,  Smith  argued  that  his
appellate  attorney was ineffective by failing to file  a  cross-
petition  for hearing seeking discretionary review by the  Alaska
Supreme  Court of another legal issue that this court had decided
against Smith in his direct appeal:  our affirmance of the  trial
courts rejection of Smiths contention that the photo lineups that
the  police  presented to the victim were unduly  suggestive  and
tainted her identification of him.10
          When a defendant claims that he has been prejudiced  by
ineffective assistance of counsel, the defendant must  show  that
his  counsel  did not perform as well as a lawyer  with  ordinary
training  and  skill in the criminal law.11  In evaluating  trial
counsels  conduct, the court must apply a strong  presumption  of
competence.12   Further, the court must apply a presumption  that
trial   counsels   actions  were  motivated  by  sound   tactical
          In  the  absence of evidence ruling  out  the
          possibility of a tactical reason  to  explain
          counsels   conduct,   the   presumption    of
          competence remains unrebutted and operates to
          preclude    a    finding    of    ineffective

If  the  record  does not adequately reveal  the  basis  for  the
attorneys  decision, then the accused has failed to  establish  a
case for post-conviction relief.15
          In  his  affidavit,  Smiths appellate  attorney  stated
that, due to the passage of time, he could not recall whether  he
discussed  the  possibility  of a cross-petition  with  Smith  or
whether he had purposely failed to file a cross-petition with the
          Alaska Supreme Court.  The superior court dismissed the
application  finding, in part, that Smith ha[d]  failed  to  show
that [his appellate attorneys] decision was not tactical.
          Assuming  that the decision whether or not  to  take  a
cross-petition for a hearing to the supreme court was a  decision
for  the  attorney  to  make, the superior  courts  decision  was
correct.   Smith  did  not  overcome  the  presumption  that  the
attorneys  decision  was not tactical.  But  some  decisions  are
committed to the client.16
          In  1993,  the  Alaska  Supreme Court  promulgated  the
Alaska   Rules  of  Professional  Conduct.17   Alaska   Rule   of
Professional Conduct 1.2(a) provides that:
          In a criminal case, the lawyer shall abide by
          the clients decision, after consultation with
          the  lawyer,  as  to a plea  to  be  entered,
          whether  to  waive  jury trial,  whether  the
          client  will testify, and whether to take  an

          In McLaughlin v. State,18 we interpreted Alaska Rule of
Professional   Conduct  1.2(a)  as  it  applies  to  pre-judgment
petitions for review.  We held that the decision whether to  seek
immediate appellate review of a trial courts non-appealable order
is  a  tactical  decision  that is entrusted  to  the  defendants
attorney  under  Alaska  law.19   Interpreting  Alaska  Rule   of
Professional Conduct 1.2(a), we reasoned that the Alaska  Supreme
Court  meant exactly what it said in stating that the client  had
the ultimate authority to decide whether to take an appeal.20
          We  also  noted  in  McLaughlin  that  this  court  had
previously concluded, in Simeon v. State,21 that Alaska  Rule  of
Professional  Conduct  1.2(a) left to the attorney  all  tactical
decisions that are not set out in the rule:
          [Alaska  Rule of Professional Conduct 1.2(a)]
          specifies clearly those decisions over  which
          the client has the ultimate authority.  Since
          the  rule  limits  the clients  authority  to
          those  decisions, it follows that the  lawyer
          has  the  ultimate authority  to  make  other
          decisions governing trial tactics.[22]

In reaching this decision, we pointed out that the decision
          [w]hether to petition for review is generally
          a complicated strategic and tactical decision
          that  is  best  left  to  the  attorney.   In
          general,  if  a  client  is  convicted,   the
          attorney  can then challenge any ruling  made
          by  the  trial court.  Allowing a  client  to
          independently  file  a  petition  for  review
          would  raise  the  distinct possibility  that
          such  a  procedure would cause the client  to
          undermine  his  counsels  trial  tactics  and
          would  cause an undue burden on his attorney,
          the courts, and the State.[23]

          The key issue in this case is whether, after the client
          has obtained a reversal of his conviction in the court of appeals
and  the  State  has filed a petition for hearing in  the  Alaska
Supreme  Court, the decision to file a cross-petition for hearing
on  behalf of the defendant is a decision for the attorney or for
the client.  We conclude that it is a decision for the attorney.
          The facts of this case illustrate the complexity of the
decision about whether to file a cross-petition for hearing  with
the Alaska Supreme Court.  At the time that counsel was making  a
decision  whether  to file a cross-petition,  Smith  had  already
obtained a reversal of his conviction.  Specifically, as a result
of  our  decision, Smith had obtained the suppression of possibly
the  most  critical evidence against him, his admissions.   Under
these  circumstances,  it  is reasonable  to  infer  that  Smiths
counsel  would  not  want the Alaska Supreme  Court  to  grant  a
petition  for hearing, thereby placing in jeopardy his  favorable
result in this court.  Counsel might well have reasoned that  his
best  course of action would be to suggest to the Alaska  Supreme
Court  that  the decision reached by this court was  correct  and
that  there  was no reason for the supreme court to exercise  its
discretionary  jurisdiction.  Counsel might  well  have  reasoned
that  urging  the  Alaska Supreme Court to  grant  review  on  an
additional  issue  in  which this court had ruled  against  Smith
would  make  it  more likely that the supreme court  might  grant
discretionary review.
          Furthermore,  Smiths counsel could well have  concluded
that the issue in which Smith argues that his counsel should have
filed a cross-petition  whether the victims identification of him
was  tainted by a series of suggestive photo lineups  was  not  a
strong  issue.   The trial court had determined  that  the  photo
lineup  procedure was not unduly suggestive, and  we  upheld  the
trial courts finding on appeal.24  Moreover, we noted that,  even
if  the  trial courts finding that the photo lineup had not  been
unduly  suggestive  was incorrect, the error did  not  taint  the
victims  identification of Smith because the victim had  observed
her assailant three times before the attack.25
            Counsel  could well have concluded that this  was  an
issue  upon  which he had little chance to prevail and  one  that
would  have detracted from his ability to argue the key issue  in
the  case   that Smiths admissions had been properly  suppressed.
If  the  Alaska Supreme Court granted review and held that Smiths
admissions were admissible, Smiths convictions would stand.   But
if  Smith prevailed in suppressing his admissions and obtained  a
new  trial, a trial attorney might want to introduce evidence  of
the  purportedly suggestive photo lineups to illustrate  why  the
victim might have been mistaken in her identification of Smith.
          The purpose of the prior discussion is not to speculate
about  the  actual  tactics of Smiths  appellate  attorney.   The
purpose is to show the complexity of these tactical decisions. It
illustrates why we conclude under the facts of this  case   i.e.,
in circumstances where the State has already filed a petition for
hearing  that the decision whether to file a cross-petition  with
the  Alaska Supreme Court is a decision committed to the  defense
attorney under Alaska law.
          This  decision seems consistent with decisions in which
courts  have held that, although the defendant has the  right  to
          determine whether or not to appeal, the tactical decision of what
arguments  to  raise on appeal are decisions for the  attorney.26
These decisions rest on the conclusion that the attorney is  best
suited  to make the tactical decision about what issues to raise,
and they recognize that experienced attorneys winnow[] out weaker
arguments  on  appeal.27   The  decision  that  Smiths  appellate
counsel  had  to decide in determining whether to file  a  cross-
petition  for hearing is remarkably similar to the decision  that
counsel  has to make in deciding which issues to raise on  appeal
would raising this additional issue help or hinder the client?
          We  accordingly conclude that the decision  whether  to
file  a cross-petition for hearing with the Alaska Supreme  Court
was  a  tactical decision for Smiths attorney to decide.  Because
Smith  did  not  show  that  his attorney  made  an  unreasonable
tactical decision, we conclude that the trial court did  not  err
in  dismissing Smiths application for post-conviction relief.  We
express no opinion on a defense attorneys duty to file a petition
for hearing at the defendants request in other cases.
          The judgment of the superior court is AFFIRMED.
     1    AS    11.41.300(a)(1)(C)   and   AS    11.41.410(a)(1),

2  Miranda  v.  Arizona, 384 U.S. 436, 86  S.  Ct.  1602,  16  L.
Ed. 2d 694 (1966).

     3  Smith  v.  State,  Alaska  App.  Memorandum  Opinion  and
Judgment  No.  4074  at  17  (lead  opinion),  25  (Coats,  C.J.,
concurring) (July 14, 1999), 1999 WL 494991 at *9 (lead opinion),
*13  (Coats, C.J., concurring), revd, 38 P.3d 1149, 1161  (Alaska

     4 Id.

     5 Id. at 24, 1999 WL 494991 at *12.

     6 Id.

     7 See Smith, 38 P.3d at 1152.

     8 Id. at 1161.

     9 Id.

     10    Smith, Memorandum Opinion and Judgment No. 4047 at 20-
21, 1999 WL 494991 at *11.

     11    State  v. Jones, 759 P.2d 558, 567 (Alaska App.  1988)
(quoting Risher v. State, 523 P.2d 421, 424 (Alaska 1974)).

     12    Id. at 569 (citing Strickland v. Washington, 466  U.S.
668,  689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984); United
States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046, 80 L.
Ed. 2d 657 (1984)).

     13   Id.

     14   Id.

     15    Steffensen v. State, 837 P.2d 1123, 1127 (Alaska  App.
1992) (citing Jones, 759 P.2d at 569).

16    See,  e.g., Faretta v. California, 422 U.S.  806,  807,  95
S.  Ct.  2525,  2527, 45 L. Ed. 2d 562 (1975);  Alaska  R.  Prof.
Conduct 1.2(a).

     17    Alaska  Supreme Court Order No. 1123  (eff.  July  15,

     18   173 P.3d 1014 (Alaska App. 2007).

     19   Id. at 1014.

     20   Id. at 1016.

     21   90 P.3d 181 (Alaska App. 2004).

     22    McLaughlin, 173 P.3d at 1015 (alteration in  original)
(quoting Simeon, 90 P.3d at 184).

     23   Id. at 1016-17.

24    Smith,  Memorandum Opinion and Judgment  No.  4074  at  20-
21, 1999 WL 494991 at *10-11.

     25   Id. at 21, 1999 WL 494991 at *11.

     26    See, e.g., Jones v. Barnes, 463 U.S. 745, 751-54,  103
S. Ct.  3308, 3312-14, 77 L. Ed. 2d 987 (1983); Coffman v. State,
172  P.3d 804, 812 (Alaska App. 2007); Tucker v. State, 892  P.2d
832, 836 (Alaska App. 1995) (citations omitted).

     27   Barnes, 463 U.S. at 751, 103 S. Ct. at 3313.

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