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Lindeman v. State (1/7/2011) ap-2292

Lindeman v. State (1/7/2011) ap-2292


        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 @


CHRISTOPHER LINDEMAN,                           ) 
                                                )         Court of Appeals No. A-10254/10283 
             Appellant/Cross-Appellee,          )            Trial Court No. 3AN-02-4751 CI 
             v.                                 ) 
                                                )                   O P I N I O N 
STATE OF ALASKA,                                ) 
             Appellee/Cross-Appellant.          ) 
                                                )              No. 2292 - January 7, 2011 

                Appeal     from    the  Superior    Court,   Third   Judicial   District, 
                Anchorage, Patrick J. McKay, Judge. 

                Appearances:      Colleen A. Libbey, Libbey Law Offices, LLC, 
                Anchorage, for the Appellant.       Diane L. Wendlandt, Assistant 
                Attorney General, Office of Special Prosecutions and Appeals, 
                Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, 
                for the Appellee. 

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

                BOLGER, Judge. 

                Both parties appeal from rulings on Christopher Lindeman's application for 

post-conviction relief from his conviction for second-degree murder.   The State argues 

that Superior Court Judge Patrick J. McKay failed to make sufficient findings to justify 

the conclusion that Lindeman received ineffective assistance   from the attorney who 

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

handled   the   appeal   from   Lindeman's   conviction.      We   conclude   that   the   court   made 

sufficient findings on this issue, and that there is a reasonable possibility that Lindeman 

would have prevailed on appeal if he had attacked the jury instruction on his duty to 

protect the victim. 

                Lindeman argues that his trial attorney was   ineffective for his delay in 

obtaining DNA testing, for his incomplete response to the State's request for this jury 

instruction, for his failure to   employ   a neuropathologist, and   for his conduct   at   the 

sentencing   hearing.     Lindeman   also   argues   that   new   results   from   DNA   testing   and 

evidence   of   juror   misconduct   require   a   new   trial.   We   agree   with   Judge   McKay's 

conclusion that Lindeman failed to raise material issues requiring a hearing on these 



                Lindeman was found calling for help in an internal stairwell outside his 

apartment; his roommate, Amos Gordon Rossman, was found beaten and dead in the 

bathroom.     Lindeman gave two statements in which he claimed innocence and alleged 

that   he   and   Rossman   had   been   on   an   extended   drinking   binge   and   were   beaten   by 

skinheads on   the way back to   Lindeman's apartment.                The coroner determined   that 

Rossman's blood alcohol level was .442%. 

                The trial jury convicted Lindeman of second-degree murder.                  Lindeman 
appealed his conviction and this court affirmed.1          In January 2002, Lindeman filed a pro 

se application for post-conviction relief, which was amended after he secured counsel. 

    1   Lindeman v. State, Mem. Op. & J. No. 4356, 2001 WL 219747, at *1, *6 (Alaska 

App. Mar. 7, 2001). 

                                                   2                                                2292 

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              In March 2007, Judge McKay granted the State's motion to dismiss the 

application.  But the judge later granted Lindeman's motion for reconsideration of his 

claim regarding ineffective assistance of appellate counsel.  After conducting a hearing 

on the claim, Judge McKay ruled that appellate counsel was ineffective and granted 

Lindeman a new merit appeal. 

              Lindeman appeals from Judge McKay's order granting the State's motion 

to dismiss Lindeman's remaining claims.        The judge relied on considerable material 

outside the application for post-conviction relief when he granted the State's motion, so 
we will review his ruling as an order granting summary judgment.2         A court may grant 

summary judgment on an application for post-conviction relief if "there is no genuine 
issue of material fact and the moving party is entitled to judgment as a matter of law."3 

We review this type of order de novo, viewing the evidence and all reasonable inferences 
in the light most favorable to the non-moving party.4 

              The    State  cross-appeals   Judge   McKay's     order  granting  Lindeman's 

application on the issue of ineffective assistance of appellate counsel.  On this issue, we 

accept the trial court's findings of fact unless they are clearly erroneous, and we review 
the trial court's conclusions of law de novo.5 

    2  See Phillips v. Gieringer, 108 P.3d 889, 892-93 (Alaska 2005) (holding under the 

similar provisions of Alaska Civil Rule 12(b) that if the court does not exclude materials 
outside of the pleadings when deciding a motion to dismiss, the motion is treated as a motion 
for summary judgment). 

    3  Alaska R. Crim. P. 35.1(f)(3). 

    4  Beilgard v. State, 896 P.2d 230, 233 (Alaska 1995). 

    5  See Tucker v. State, 892 P.2d 832, 834 (Alaska App. 1995). 

                                              3                                          2292

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        The DNA Evidence 

                Performance of trial counsel 

                Lindeman argues that his trial counsel was ineffective for failing to obtain 

DNA testing of the blood evidence from the crime scene.              The trial attorney did obtain 

favorable test results of a towel and a t-shirt just prior to trial and a favorable test result 

of the alleged murder weapon during trial.            According to Lindeman, however, these 

efforts were untimely. 

                The State's case was largely based on blood found throughout Lindeman's 

apartment. Rossman was found dead in Lindeman's bathroom in a pool of blood. Blood 

stains   were   found   throughout   the   apartment   and   on   the   alleged   murder   weapon,   a 

seventeen-pound dumbbell.          Blood was also found on Lindeman's t-shirt and a towel, 

which were in a washing machine.   There were cast-off stains on the ceiling.  The State 

argued that this evidence suggested that Lindeman struck Rossman with the dumbbell 

in the living room and then dragged him to the bathroom to make it look like he fell and 

struck his head. 

                Lindeman maintained his innocence throughout the investigation and trial. 

In two statements given to police, he alleged that he and Rossman had been beaten by 

skinheads on their way back to Lindeman's apartment.               Lindeman alleged that he had 

suffered a nosebleed in the fight.        He also said that Rossman had been sitting in the 

recliner, but that he then assisted him to the bathroom.  He later heard Rossman fall and 

found him lying on the floor. Lindeman stated that he (Lindeman) was blacking out after 

they returned to his apartment. 

                Lindeman's trial attorney received discovery information indicating that a 

detective put in a lab request for DNA testing of the evidence in October 1997.  In June 

1998, the trial attorney wrote to the State to inquire about the testing, but received no 

                                                   4                                             2292

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

reply. On July 17, the prosecutor notified Lindeman's trial attorney that the State was 

not going to conduct blood testing.    The trial attorney then decided to test some of the 

items most likely to contain Lindeman's blood. A few days before trial, the trial attorney 

received results indicating that Lindeman's own blood was on his t-shirt and a towel 

found in the apartment.   The trial attorney then made a motion for a continuance so that 

he could test the dumbbell and several other items he felt should have been tested. 

              At the hearing on the motion for a continuance, the trial attorney argued 

that he would not be able to provide effective assistance if he proceeded to trial without 

the DNA evidence.     The trial court denied his motion.   But the attorney did secure and 

present DNA testing showing that the blood on the dumbbell was Lindeman's blood. 

              In his application for post-conviction relief, Lindeman argued that the trial 

attorney   had   been ineffective for failing to obtain the DNA evidence.    According to 

Lindeman, his trial attorney failed to seek testing in a timely matter:  he did not follow 

up on the tests ordered in October 1997 until June 1998, did not receive an answer until 

July 1998, and then waited an additional month before seeking testing. 

              In his affidavit, Lindeman's trial attorney explained that, through discovery, 

he received a police request for the blood testing, and that he "certainly wanted to know 

how the blood testing came out before trial."  When prompted by a retained crime scene 

technician, he asked the State about the results.  And when the State informed him that 

it would not be conducting the tests, he was left with a tactical choice:  do nothing and 

argue the deficiency of the State's case, or do the testing.     After mulling it over, he 

decided to approach the matter conservatively and test the two items most   likely to 

contain Lindeman's blood.     When those results confirmed that Lindeman had been an 

active source of bleeding, he made the motion for a continuance to test the dumbbell and 

                                             5                                         2292

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

other items.     The trial attorney concluded that he had been ineffective for his failure to 

order a more timely and comprehensive DNA identification of the blood samples. 

                 "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 ... criminal law.'"6                We apply "a strong 

presumption   of   competence"   and   a   "presumption             that   trial   counsel's   actions   were 
motivated by sound tactical considerations."7 

                 "In the absence of evidence ruling out the possibility of a tactical reason to 

explain   counsel's   conduct,   the   presumption   of   competence   remains   unrebutted   and 
operates to preclude a finding of ineffective assistance."8              That is, "[i]f the record does 

not adequately reveal the basis for the attorney's decision, then the accused has failed to 
establish a case for post-conviction relief."9 

                 In his order dismissing Lindeman's post-conviction relief petition, Judge 

McKay concluded that the trial attorney's decisions were tactical.                     He explained that 

although the State's delay may have inconvenienced Lindeman, there was no evidence 

that the trial attorney acted incompetently:  the trial attorney acted once his theory was 

formed      and   his  decision    to  wait   until   that  juncture   to  seek   further   testing    was   a 

reasonable tactical decision.         According to Judge McKay, the trial attorney's actions 

    6   Smith v. State, 185 P.3d 767, 768 (Alaska App. 2008) (quoting State v. Jones, 759 

P.2d 558, 567 (Alaska App. 1988)). 

    7   Jones, 759 P.2d at 569. 

    8   Id . 

    9   Smith, 185 P.3d at 768. 

                                                      6                                                 2292

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were "within the range of reasonable actions which might have been taken by an attorney 
skilled in criminal law."10 

                 We reviewed a similar tactical decision in Osborne v. State (Osborne I ).11 

In  Osborne, the State used DNA testing on a condom at the scene of a rape.12                           The 

State's testing was imprecise, showing only that approximately sixteen percent of the 
African-American   population   matched   the   DNA               from   this   sample.13    The   defense 

attorney chose not to seek more precise testing in order to avoid a test result that could 
confirm her client's guilt.14      We held that the defense attorney made a legitimate tactical 

decision to avoid a more precise DNA test.15 

                 Here,   the   only   contested   issue   is   whether   the   trial   attorney's   delay   in 

obtaining   DNA testing was tactical.            The trial court found the decision was tactical 

because the trial attorney initially waited until he could review the results of the State's 

testing.   Once the State informed the trial attorney it was not going to test the blood, he 

made the tactical decision to test the two items most likely to contain Lindeman's blood. 

Then after the trial attorney received results showing Lindeman's blood on these two 

    10  See generally Risher v. State, 523 P.2d 421, 425 (Alaska 1974) (holding that, if a 

defendant proves that their attorney failed to act with the minimum level of competence 
expected of criminal law practitioners, the defendant is entitled to relief if the defendant can 
additionally demonstrate "a reasonable doubt that the [attorney's] incompetence contributed 
to the outcome"). 

    11   110 P.3d 986 (Alaska App. 2005). 

    12  Id. at 989. 

    13  Id. 

    14  Id. at 991-92. 

    15  Id. at 992. 

                                                      7                                                 2292

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items, he made another tactical decision to test the alleged murder weapon. We conclude 

that Lindeman failed to raise any material issues suggesting that the trial attorney's 

decisions regarding the DNA testing were ineffective. 

                Newly discovered evidence claim 

                Lindeman also argues that he is entitled to a new trial under Criminal Rule 

35.1 because of new evidence in the form of additional DNA tests performed after his 

trial. An applicant who seeks post-conviction relief based on newly discovered evidence 

must meet the same burden as a defendant who brings a motion for a new trial on the 
same   ground.16     The   applicant   must   show   that   the   proposed   new   evidence   is   newly 

discovered and would probably produce an acquittal.17 

                Lindeman alleges that he has new DNA tests of blood from the crime scene 

indicating that Lindeman's blood was found throughout the apartment, which refutes the 

State's   theory   that   it   was   all   Rossman's   blood. But   these   DNA   tests   are   not   "new 
evidence" because they were based on evidence available at trial.18                  Lindeman is not 

entitled to a new trial because the evidence is not "new evidence" that would entitle 

Lindeman to post-conviction relief. 

                Request for additional testing 

                Lindeman also argues that he is entitled to additional DNA testing.  On 

appeal, Lindeman does not identify what additional tests he wishes performed, but in his 

    16  Lewis v. State, 901 P.2d 449-50 (Alaska App. 1995). 

    17  Id. at 450. 

    18  Osborne v. State (Osborne II), 163 P.3d 973, 984 (Alaska App. 2007). 

                                                    8                                                2292 

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

post-conviction relief application he requested supplemental testing of certain ceiling 

stains, floor stains, and various objects at the crime scene.             Lindeman argues that the 

testing should be granted under this court's opinion in Osborne I. 

                In  Osborne I, we adopted a three-part test to determine whether a court 

should   order   additional   DNA   testing:      "(1)   that   the   conviction   rested   primarily   on 

eyewitness identification evidence, (2) that there was a demonstrable doubt concerning 

the defendant's identification as the perpetrator, and (3) that scientific testing would 
likely be conclusive on this issue."19 

                The first requirement for additional testing under  Osborne I is that the 
conviction rested primarily on eyewitness identification.20               Lindeman recognizes that 

eyewitness identification is not at issue in his case, but he argues that he should be 

granted     additional    testing   because     the  case   against    him   was    based    entirely   on 

circumstantial evidence. However, Lindeman provides no support for his argument that 

the rule should be expanded to include convictions other than those based on eyewitness 


                The second requirement is that there was a demonstrable doubt about the 
defendant's identification as the perpetrator.21         Although Lindeman argued that both he 

and Rossman were attacked by skinheads on their way home, his case does not satisfy 

this requirement.      There is no contention that there were any other individuals in the 

apartment   other   than   Rossman   and   Lindeman.          The   only   question   about   the   DNA 

evidence in the apartment is whether the various blood stains in the apartment belonged 

    19  110 P.3d at 995. 

    20  Id. 

    21  Id. 

                                                    9                                                 2292 

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

to Rossman or Lindeman.           Lindeman does not argue that DNA testing would identify 

some other perpetrator. 

                 The   third   requirement   is   that   the   additional   testing   must   conclusively 
establish whether the defendant was the perpetrator.22               Although favorable test results 

may   significantly   buttress   Lindeman's   case,   they   would   not   be   conclusive.           Even 

assuming that testing all of the blood stains yielded only Lindeman's DNA, there would 

remain substantial circumstantial evidence of Lindeman's guilt. 

                 Lindeman's request for additional DNA testing fails on all three prongs of 

the Osborne I test. 

         The Special Duty Jury Instruction 

                 At grand jury, the State relied on the theory that Lindeman killed Rossman 

by bludgeoning him with a dumbbell.   However, well into trial, Lindeman received and 

presented DNA test results indicating that the blood on the dumbbell was Lindeman's 

and not Rossman's. 

                 During deliberations, the jury asked the trial court if it could "consider the 

possibility that other objects observed in the photographic evidence could have been 

used as assault weapons."  The trial court answered in the affirmative.  Six days later, the 

jury reported that it was "unable to   reach   a unanimous decision on the charge[s] of 

murder   in   the   first   degree   [and]   ...   tampering   with   physical   evidence."    The   court 

summoned the jury, discussed the problem, and then sent the jurors back to clarify their 

status.    The   jury   then   sent   a   note   requesting   the   "procedure   for   considering   lesser 

charges," and the judge reread the appropriate instruction. 

    22  Id. 

                                                     10                                                 2292 

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

                Later the jury asked, "Does the phrase 'knowingly engaged in conduct' in 

... instruction #17 include failing to take action?"   Instruction 17 provided the elements 
for   second-degree      extreme-indifference     murder.23    The    judge   then   gave   the  jury 

Supplemental Instruction #1: 

                       "Conduct"       means     an   act   or  omission     and    its 
                accompanying mental state. 
                       For    purposes    of  "knowingly     engaging    in  conduct 
               under circumstances manifesting extreme indifference to the 
               value     of  human    life"  the  law   requires    that  a  criminal 
                defendant knowingly perform an act and that the defendant 
               be    reckless  as  to  the  surrounding    circumstances     ("under 
                circumstances manifesting extreme indifference to the value 
                of human life") and the result (the death of another).  The 
                definitions   of   knowingly   and   recklessly   are   contained   in 
                [your] prior instructions. 
                       In general, the law imposes no affirmative duty on a 
                defendant to protect a victim from danger.        Thus, the failure 
               to take action generally cannot give rise to criminal liability. 
               However, if a defendant performs an act or acts that endanger 
                a person or create a situation of danger to another person, you 
               may consider a defendant's "failure to take action" to prevent 
               harm to the victim in determining whether the defendant's 
                conduct gives rise to criminal liability. 

The jury then acquitted Lindeman of first-degree murder and convicted him of second- 

degree murder. 

               Performance of trial counsel 

                Lindeman argues that his trial attorney was ineffective for failing to raise 

additional objections to this supplemental jury instruction.  However, Lindeman did not 

    23  See AS 11.41.110(a)(2). 

                                                 11                                              2292 

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

advance the theory that his trial attorney was ineffective for this reason until his motion 

for   reconsideration   of   the   dismissal   of   the   application.   Ordinarily,   a   court   has   "no 
obligation to consider an issue raised for the first time in a motion for reconsideration."24 

                 Moreover, Lindeman's pleadings in the trial court are inconsistent with this 

claim.  He initially praised his trial attorney's objections to the instruction and his efforts 

to contain the   resulting prejudice.        And when he responded to the State's motion to 

dismiss, Lindeman did not note the existence of this claim.  Lindeman did not present a 

prima facie case of ineffectiveness on this issue because it was not presented to the trial 

court in a timely manner. 

                Performance of appellate counsel 

                 In his amended application for post-conviction relief, Lindeman alleged that 

his appellate counsel was ineffective for failing to argue that the supplemental instruction 

was   erroneous.      Following   a   hearing   on   that   claim,   Judge   McKay   concluded   that 

appellate counsel had been ineffective.            In its cross-appeal, the State argues that Judge 

McKay's findings did not support his grant of post-conviction relief and that an appeal 

of the instruction would not have been successful. 

                 In order "[t]o establish a prima facie case that an appellate counsel's choice 

of issues was incompetent, the defendant must establish (1) that the proposed additional 

issue is significantly stronger than the issues that were raised in the appeal; (2) that the 

appellate attorney had no valid tactical reason for failing to include this particular issue; 

and (3) that, if the proposed issue had been included, there is a reasonable possibility that 

    24  J.L.P. v. V.L.A.,   30   P.3d   590, 597 n.28 (Alaska 2001); see also DeNardo v. GCI 

Commc'n Corp., 983 P.2d 1288, 1290 (Alaska 1999) ("Issues raised for the first time in a 
motion for reconsideration are untimely."). 

                                                    12                                                 2292 

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

the outcome of the appeal would have been different."25             On appeal, the State challenges 

the third factor, specifically arguing that Judge McKay failed to make a sufficient finding 

that there was a reasonable possibility that the appeal would have been successful had 

appellate counsel challenged this instruction. 

                But    Judge    McKay's      written   order   stated   that  "there   is  a  reasonable 

possibility that the outcome of the appeal would [have been] different" if Lindeman's 

attorney   had   raised   this   issue   on   appeal.  The   judge   also   found   that   "[t]here   is   a 

reasonable argument that the timing of the instruction created a fatal variance [from] the 

grand jury indictment," and that "[e]ven if viewed as a 'mere variance' [from] the grand 

jury indictment, it is arguable that the supplemental instruction sufficiently prejudiced 

[Lindeman] such that it constitutes reversible error."            We conclude that Judge McKay 

did   make   sufficiently   clear   findings   that   there   was   a   reasonable   possibility   that   the 

argument on this supplemental instruction would have succeeded if it was raised on 


                We also conclude that Judge McKay's conclusions regarding this issue 

were correct.      There is a reasonably promising argument that the supplemental jury 

instruction   constituted   a   constructive   amendment   of   Lindeman's   murder   charge.          A 

constructive amendment occurs when the defendant is convicted of a charge based on 

evidence   that is materially different than the evidence that supported the grand jury 

                In Michael v. State, the defendant was charged with assault in the first 

degree under an extreme indifference theory:             the indictment alleged that Michael had 

    25  Coffman v. State, 172 P.3d 804, 813 (Alaska App. 2007).

    26  See Michael v. State (Michael II), 805 P.2d 371, 373 (Alaska 1991) (quoting 2 Wayne

R. LaFave & Jerold H. Israel, Criminal Procedure  19.2(h), at 469-70 (1984)). 

                                                    13                                               2292 

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

caused serious physical injury to his daughter under circumstances manifesting extreme 
indifference to the value of human life, by fracturing her bones.27                 But the trial judge 

found Michael guilty under the theory that Michael had, through inaction, violated his 

special   duty   as   a   parent   to   take   affirmative   action   to   protect   his   child   from   assaults 
committed by his wife.28       The supreme court held that this constituted a fatal amendment 

from the original indictment, requiring Michael's conviction to be reversed.29 

                 In   this  case,   Lindeman      was   charged     with   first-degree    murder    in  an 

indictment alleging that Lindeman assaulted Rossman intending to cause his death.  The 

trial jury was instructed that they could find Lindeman guilty of the   lesser included 

offense of second-degree murder on an extreme indifference theory if the State proved 

that   Lindeman      caused    Rossman's      death    under   circumstances      manifesting     extreme 

indifference to the value of human life. 

                 The supplemental instruction explaining the second-degree murder charge 

made a change in this extreme-indifference charge that was similar to the change that 

supported the verdict in theMichael case. The supplemental instruction told the jury that 

they   could   find   Lindeman   guilty   under   a   theory   that   through   inaction   he   violated   a 

special duty owed to Rossman - the duty requiring a person who places another person 
in danger to take affirmative action to protect the other person from harm.30  Lindeman 

    27  Id. at 372.

    28  Michael v. State  (Michael I), 767 P.2d 193, 196-97 (Alaska App. 1988), rev'd, 805

P.2d 371 (Alaska 1991). 

    29  Michael II, 805 P.2d at 374. 

    30  See 1 Wayne R. LaFave, Substantive Criminal Law   6.2(a)(5), at 441-42 (2d ed. 


                                                     14                                               2292

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

has a reasonable argument that this variance was the same type of fatal variance that 

required a reversal in Michael. 

                 We also agree with Judge McKay that there is a reasonable argument that 

the timing of the supplemental instruction caused Lindeman unfair prejudice.  Lindeman 

was entitled to make his arguments   to   the jury based on the intentional first-degree 

murder charge that the State had pursued during the trial and the lesser charges that were 
necessarily included.31      There is a reasonable argument that it was unfairly prejudicial to 

give   the   jury   an   instruction   on   a   new   theory   of   the   case   during   deliberations,   after 
Lindeman had lost the opportunity to present any evidence or arguments on that theory.32 

In other words, Lindeman had another argument with a reasonable possibility of success: 

the argument that he was unfairly prejudiced by the supplemental instruction because he 

did not have a fair opportunity to argue against the charge that he failed to render aid. 

                 We agree with Judge McKay's decision that Lindeman is entitled to reopen 

the   appeal   from   his   conviction   based   on   the   ineffective   assistance   of   his   appellate 


    31  See generally Rollins v. State, 757 P.2d 601, 602-03 (Alaska App. 1988) (indicating 

the defendant was entitled to "make his jury argument on the assumption that the lesser- 
included offense would not be submitted to the jury"). 

    32  See generally Bowers v. State, 2 P.3d 1215, 1219-21 (Alaska 2000) (concluding the 

decision to give the jury an instruction on a new   theory of the case during deliberations 
"created a strong likelihood of prejudice"). 

                                                     15                                               2292

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

        Other Issues 

                Juror misconduct 

                Lindeman also argues that he is entitled to a new trial because of juror 

misconduct.  Lindeman argues that juror Evan Phillips failed to disclose his relationship 

to   an   individual   on   the   witness   list   and   that   his   failure   to   disclose   the   relationship 

prejudiced   his   case.    The   State   responds   that   the   trial   court   correctly   rejected   the 

argument because Lindeman failed to show that he would have challenged the juror had 

the juror disclosed the relationship, the alleged misconduct did not involve material 

matters, and Lindeman did not establish prejudice. 

                At the start of voir dire, Judge Card had the assistant district attorney read 

the names of the anticipated witnesses to the jury.           Scott Weeks's name was read from 

the list.   Judge Card asked the prospective jurors if they were related to or knew any of 

the parties or witnesses involved in the case, and Phillips did not respond that he knew 

Weeks.  On individual voir dire, Phillips did disclose that he was a recovering alcoholic, 

but he was not questioned about his involvement in recovery programs. 

                Lindeman's   claim   is   based   on   information   he   obtained   after   the   trial. 

Lindeman submitted an affidavit of Galen Huntsman, an acquaintance of Lindeman's, 

in which Huntsman stated that he was present in court for one day during Lindeman's 

trial   and   that   he   recognized   Evan   Phillips,   one   of   the   jurors. Huntsman   talked   to 

Lindeman after the trial and informed him that Huntsman "knew positively that Evan 

Phillips knew Scott Weeks," an individual listed on the witness list.  Huntsman alleged 

that he, Phillips, and Weeks were involved in the same alcohol recovery programs.  In 

his affidavit in support of this claim, Lindeman stated he "would certainly not have 

accepted [Phillips] as a juror if [he] had known [Phillips] was acquainted with some of 

the people [he] was accusing." 

                                                    16                                              2292

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

                 Generally, a "verdict should stand unless the evidence clearly establishes 
a serious violation of the juror's duty and deprives a party of a fair trial."33            A party may 

show a serious violation of a juror's duty by establishing serious misconduct such as 
fraud, bribery, or forcible coercion.34        A party may show that such a violation deprives 

them of a fair trial by addressing three factors:          (1) whether the juror would have been 

challenged for cause had the juror disclosed the relevant information; (2) whether the 

misconduct went to a collateral or material issue; and (3) whether the probable effect of 
the misconduct was prejudicial.35 

                 Judge McKay found that none of the three prejudice factors were present: 

the trial attorney did not state in his affidavit that he would have challenged Phillips had 

he known that he was acquainted with Weeks; there was no evidence that Phillips made 

any improper comments on any material issue; and there was no evidence that Lindeman 

was denied a fair trial. 

                 We agree with Judge McKay's conclusions.                 In particular, we note that 

Lindeman's allegations indicated that the references to Weeks during Lindeman's trial 

were insignificant.      Although Weeks was on the prosecution's witness list, he never 

testified at the trial.  The only references to Weeks were in Lindeman's interviews with 

the   police.   Lindeman   alleged   that   in   his   first   interview,   he   identified   Weeks   as   a 

"skinhead" who knew some of Rossman's "skinhead" assailants. Lindeman also alleged 

that   he   stated   that   Weeks   might   know   where   Rossman's   assailants   lived.        Even   if 

    33   West v. State, 409 P.2d 847, 852 (Alaska 1966); see also Swain v. State, 817 P.2d 927, 

930-31 (Alaska App. 1991); Fickes v. Petrolane-Alaska Gas Serv., Inc., 628 P.2d 908, 910 
(Alaska 1981). 

    34  Swain, 817 P.2d at 930 (quoting Fickes, 628 P.2d at 910). 

    35  Id . at 931. 

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Lindeman       had   established     that  juror  Phillips   knew     Weeks,     these   references    were 

insufficient to suggest that Lindeman suffered any prejudice at his trial. 

                 Medical expert 

                 Lindeman argues that his trial attorney was ineffective for failing to obtain 

additional expert services.        He argues that because the medical issues in his case were 

complex,   trial   counsel   should   have   called   a   neuropathologist   to   counter   the   State's 

experts. Lindeman claims that although Rossman's cause of death (cerebral edema) was 

consistent with either his extreme intoxication or a traumatic injury, further technical 

analysis   by   a   neuropathologist   could   have   ruled   out   trauma   as   the   cause   of   death. 

Lindeman's claim is based on a post-trial report he obtained from a neuropathologist, Dr. 

Jan Leestma. 

                 We   reject   this   claim   for   several   reasons.    First,   the   trial   court   never 

addressed this issue in its decision, and it is unclear if the court was aware that Lindeman 

was   alleging     this  claim   in   his   petition. The   first   time   the   issue   appeared   was   in 

Lindeman's response to the State's motion to dismiss his petition for post-conviction 


                 Second,   a   petitioner   must   submit   an   affidavit   from   counsel   addressing 
claims of ineffectiveness.36       Here, Lindeman has submitted two affidavits from his trial 

attorney, but neither mentions additional experts or the neuropathologist's report. 

                 Third, there is no evidence that the trial attorney's choice in experts was not 
a tactical decision.37    This is largely because the attorney's affidavits do not address his 

    36  Allen v. State , 153 P.3d 1019, 1021-22 (Alaska App. 2007). 

    37  See State v. Steffensen, 902 P.2d 340, 341 (Alaska App. 1995) (explaining that to 

show ineffective assistance, a defendant must show that there was no valid tactical reason 

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choice of experts. The trial attorney retained a forensic pathologist, Dr. Janice Ophoven, 

who examined the medical evidence and testified at trial.              It is not clear why the trial 

attorney chose one expert over another.          Even assuming the claim was properly raised, 

Lindeman       presented     insufficient    evidence     to  establish    a  prima    facie   case   of 


                Lindeman also argues that he is entitled to a new trial under Criminal Rule 

35.1  based   on   Dr.   Leestma's   report.    Dr.   Leestma's   report   contradicted   the   State's 

witness and indicated that Rossman had sustained numerous injuries many hours before 

his death, which arguably supports Lindeman's claim that he and Rossman were attacked 

outside of the apartment.       The report was composed from Dr. Leestma's review of the 

autopsy report, records from the medical examiner's office, transcripts of the medical 

examiner's testimony at grand jury and trial, transcripts of Dr. Ophoven's testimony, 

transcripts of Lindeman's statements, photographs of the death scene and of Rossman's 

body, and Anchorage police documents and reports. 

                Again, this report is not "new evidence" because it is based on evidence 
available at trial.38  Lindeman does not argue that Dr. Leestma's report used any models, 

techniques, or methodology not available at the time of trial.  Dr. Leestma's report was 

composed from trial evidence and testimony.              Lindeman is not entitled to a new trial 

because   the   evidence   is   not   "new   evidence"   that   would   entitle   Lindeman   to   post- 

conviction relief. 

underlying the attorney's decision). 

    38  Osborne II, 163 P.3d at 984. 

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                 Sentencing issues 

                 Next, Lindeman argues that his trial attorney was ineffective in the way he 

addressed certain sentencing issues.            He argues that his trial attorney failed to object to 
the sentence as an unwarranted departure from the Page benchmark.39                         He also argues 

that his trial attorney was ineffective for conceding certain facts and not objecting to the 
sentencing court's findings under Apprendi and Blakely.40 

                 The trial court did not rule on this issue.  Lindeman initially argued that his 

sentence violated Apprendi and Blakely, but the first time he presented any substantive 

argument that his trial attorney was ineffective at sentencing was in his response to the 

State's motion to dismiss. His trial attorney did not address this claim in either of his two 


                 Absent   a   statement   from   the   trial   attorney   to   the   contrary,   his   general 
arguments at sentencing appear to be the result of a tactical choice.41                  Although the trial 

attorney     conceded      that   Lindeman      had   a  role  in  Rossman's       death,    he  argued    that 

Lindeman was too drunk to form the intent to kill, that the evidence suggested mutual 

combat,   and   that   Lindeman   had   shown   great   remorse.           It   seems   likely   that   the   trial 

    39   See   Page    v.  State,   657   P.2d   850,   854-55    (Alaska    App.    1983)    (establishing    a 

benchmark range of 20 to 30 years for a "typical" second-degree murder). 

    40   See  Apprendi   v.   New   Jersey ,   530   U.S.   466,   490   (2000)   (requiring   that   facts   that 

increase the penalty for a crime beyond the prescribed statutory maximum, other than the fact 
of   a   prior   conviction,   must   be   found   by   a   jury   beyond   a   reasonable   doubt);  Blakely   v. 
Washington, 542 U.S. 296, 301 (2004) (applying Apprendi to presumptive sentencing). 

    41   See Jones, 759 P.2d at 569 ("In the absence of evidence ruling out the possibility of 

a   tactical   reason   to   explain   counsel's   conduct,   the   presumption   of   competence   remains 
unrebutted and operates to preclude a finding of ineffective assistance."); Steffensen, 902 
P.2d at 341. 

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attorney considered these arguments to be tactically superior to an argument that would 

run contrary to the jury's verdict. 

                In   particular,   Lindeman's   claim   about   the   application   of Apprendi   and 

Blakely are without merit.   Lindeman was convicted of second-degree murder, a charge 
that carries a sentencing range of up to ninety-nine years.42         The sentencing judge was 

not required to find any aggravating factors to impose a maximum sentence for this 

crime.    Therefore, Lindeman's sentencing hearing was not subject to the Apprendi and 

Blakely requirement of a jury trial for aggravating factors that may increase the sentence 
beyond the punishment authorized by the jury's verdict.43 


                We AFFIRM the superior court's judgment.             Lindeman is entitled to file 

an appeal on the issue of whether the supplemental jury instruction allowed the jury to 

convict   Lindeman   on   a   theory   not   encompassed   by   the   indictment.    The   opening 

appellate pleadings must be filed within 30 days, but the filing fee is waived. 

    42  Former AS 11.41.110(b) (1996); former AS 12.55.125(b) (1996). 

    43  Carlson v. State, 128 P.3d 197, 211(Alaska App. 2006) (concluding that a defendant 

convicted of second-degree murder has no right to a jury trial on the question of whether they 
should receive a sentence above the Page benchmark range). 

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