Opinion
Court of Appeals No. A-11789 No. 6402
12-07-2016
ALEXANDER K. BEARDEN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Olena Kalytiak Davis, Attorney at Law, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 1JU-10-855 CI MEMORANDUM OPINION Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge. Appearances: Olena Kalytiak Davis, Attorney at Law, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Following a jury trial, Alexander K. Bearden was found guilty of third-degree misconduct involving a controlled substance for selling methamphetamine to a police informant. Bearden was also convicted of second-degree weapons misconduct for buying a gun in a gun-for-drugs exchange with the same informant, and third-degree weapons misconduct for being a felon in possession of a concealable firearm. This Court affirmed Bearden's convictions on direct appeal.
See AS 11.71.030(a)(1).
See AS 11.61.195(a)(1) and AS 11.61.200(a)(1), respectively.
See Bearden v. State, 2013 WL 1558160, *1 (Alaska App. Apr. 10, 2013) (unpublished).
After his convictions were affirmed on direct appeal, Bearden filed an application for post-conviction relief alleging that he had received ineffective assistance of counsel from his trial attorney. Specifically, Bearden alleged that his trial attorney was ineffective for (1) failing to file a pretrial motion to suppress under State v. Malkin based on what Bearden alleged were material misrepresentations in the original search warrant application; (2) failing to seek pretrial discovery of various text messages that Bearden claimed were exculpatory; and (3) failing to seek a proper remedy for the alleged spoilation of these text messages.
See AS 12.72.010(9); Alaska R. Crim. P. 35.1.
722 P.2d 943 (Alaska 1986).
The State moved to dismiss Bearden's post-conviction relief application for failure to state a prima facie case of ineffective assistance of counsel. The superior court ultimately granted this motion, dismissing Bearden's application on the pleadings. This appeal then followed.
Whether a defendant's post-conviction relief application establishes a prima facie case of ineffective assistance of counsel is a question of law that we review de novo. For the reasons explained here, we conclude that Bearden's application failed to state a prima facie case of ineffective assistance of counsel on any of his claims. We therefore affirm the superior court's decision to dismiss Bearden's case.
See State v. Jones, 759 P.2d 558, 565 (Alaska App. 1988).
Bearden's claim that his trial attorney was ineffective for failing to file a Malkin motion based on what Bearden alleges were material misstatements in the original search warrant application
Prior to Bearden's trial, Bearden's trial attorney filed various motions to suppress challenging the multiple search warrants issued in Bearden's case for lack of probable cause. These motions resulted in the invalidation of all but the original Glass warrant issued in Bearden's case. The Glass warrant authorized the police to record the controlled buys between Bearden and the confidential informant — including the controlled buy where Bearden bought a gun from the informant in a gun-for-drugs exchange.
Bearden v. State, 2013 WL 1558160, *1-2 (Alaska App. Apr. 10, 2013) (unpublished).
See State v. Glass, 583 P.2d 872 (Alaska 1978) (holding that, under the Alaska Constitution, the police must obtain a warrant before electronically monitoring or recording a private conversation, even when one or more participants to the conversation consent to the police surveillance).
In his application for post-conviction relief, Bearden asserted that he told his attorney that he also wanted him to challenge the Glass warrant under State v. Malkin based on what Bearden believed were material misstatements in the original search warrant application. When the attorney refused to file such a motion because he believed that there was no merit to such a challenge, Bearden prepared his own pro se Malkin motion. But the trial court would not accept the pro se pleading because Bearden was represented by counsel.
Under the Alaska Supreme Court's decision in State v. Malkin, 722 P.2d 943, 946 (Alaska 1986); a reckless misstatement or omission in a search warrant application will invalidate the ensuing search warrant if the misstatement or omission is found to be material to the underlying probable cause determination. See also Lewis v. State, 862 P.2d 181, 186 (Alaska App. 1993). Misstatements or omissions that are found to be immaterial to the finding of probable can still vitiate the warrant if the court finds that the misstatements or omissions were made intentionally — that is, made in a "deliberate attempt to mislead" the magistrate who issued the warrant. Malkin, 722 P.2d at 946 n.6.
See, e.g., Ortberg v. State, 751 P.2d 1368, 1375-76 (Alaska App. 1988) (pro se pleadings are properly rejected by the court when a defendant is represented by counsel).
Bearden argues that his attorney's refusal to file the Malkin motion and his attorney's refusal to support his pro se motion constituted ineffective assistance of counsel because there was nothing to be gained by not filing the motion. But as we explained in State v. Steffensen,
It is evident that the number of colorable suppression motions (those that have some possibility of success) is greater than the number of winning ones. Many colorable motions are ultimately denied because, under the law and the facts of the case, they turn out to be meritless. If criminal convictions were overturned based merely on a showing that the defense attorney inexcusably failed to file a colorable (but ultimately meritless) motion, many convictions would be overturned for no good reason. That is, a defendant is not prejudiced by a defense attorney's failure to file a suppression motion if, after the motion is fully heard, the court finds that the motion should be denied.
902 P.2d 340, 341-42 (Alaska App. 1995).
Thus, to present a prima facie case of ineffective assistance of counsel, Bearden had to offer facts which, if proved, would show: (1) that his attorney had no valid reason for failing to pursue the Malkin motion; and (2) that this motion would have been granted. Bearden's pleadings failed to make this showing.
Id. We note that Bearden would also have to show that there was a reasonable possibility that the outcome of his trial would have been different if the motion was granted. Id. We agree with Bearden, however, that this prejudice prong is clearly met in his case.
Bearden based his Malkin claim primarily on what he considered to be an outdated and inaccurate APSIN report that was submitted to the magistrate as part of the search warrant application. The seven-month-old APSIN report showed that Bearden's mother lived at the address where the controlled buy took place and also showed that Bearden had vehicles registered to that address. Bearden argued that this information was partially outdated and misleading because, according to Bearden, he had since moved from his mother's residence and had leased a separate apartment.
But, although Bearden provided a copy of his new lease to show that he had moved, he pointed to no evidence to suggest that the trooper was aware that Bearden had moved from his mother's residence or that the APSIN report was inaccurate. Bearden's claim also fails to recognize the limited role that the APSIN report played in the search warrant application. Contrary to Bearden's characterization, the APSIN report was not presented as proof that Bearden lived at that particular address. Instead, it was presented at the request of the magistrate as additional corroboration of the informant's credibility for purposes of the Aguilar-Spinelli test — that is, as evidence that there was at least "some connection" between Bearden and the residence where the confidential informant conducted the controlled buys. Thus, even assuming that Bearden had moved from his mother's residence and that parts of the APSIN report were no longer accurate, the APSIN report still did what it needed to do for purposes of the magistrate's probable cause finding — which was to establish a clear connection between Bearden and the residence where the controlled buy took place.
See Moore v. State, 372 P.3d 922, 924 n.1 (Alaska App. 2016).
Bearden's proposed Malkin claim was also based on the trooper's apparent misstatement about the amount of drugs involved in a prior controlled buy. The record shows that the search warrant application correctly stated that the two baggies of methamphetamine involved in the transaction weighed a combined total of .9 grams. During the later questioning by the magistrate, however, the trooper failed to correct the magistrate's misunderstanding of the amount of drugs involved and the magistrate was therefore left with the impression that each baggie weighed .9 grams, for a total of just under 2 grams. Bearden argued that the trooper's failure to correct the magistrate's misimpression concerning the amount of drugs involved was evidence of a "deliberate attempt to mislead" the magistrate into issuing a search warrant for which probable cause did not otherwise exist.
Malkin, 722 P.2d at 946 n.6; see also Lewis, 862 P.2d at 186.
But the record of the exchange between the trooper and the magistrate demonstrates that the lack of clarity regarding the amount of drugs was the result of a simple miscommunication between the trooper and the magistrate. Indeed, the trooper did try, at least initially, to correct the magistrate's misimpression about the amount of drugs. Moreover, there was no reason for the trooper to try to mislead the magistrate about the amount of drugs. Probable cause for the warrant existed regardless of whether the actual weight of the drugs was .9 grams or 1.8 grams. As the superior court correctly observed in its order dismissing this claim, "[t]he offense being investigated [did] not depend upon the quantity of the drugs delivered. ... [T]he actual weight of the drugs recovered ... [was] not material to the question of probable cause."
Thus, contrary to Bearden's assertions in his post-conviction relief application, a motion under Malkin would not have been successful and his attorney was therefore not ineffective for failing to file such a motion.
We also reject Bearden's separate claim that his attorney should have simply followed Bearden's wishes and supported the filing of his pro se Malkin motion, regardless of the underlying merit of the motion. The law is clear that the decision whether to file a motion to suppress evidence is entrusted to the defense attorney, not the defendant. An attorney's refusal to file a motion that he or she reasonably (and correctly) believes to be meritless is not a sign of incompetence.
Simeon v. State, 90 P.3d 181, 184 (Alaska App. 2004) (concluding that, outside of four litigation decisions that the client controls — what plea to enter, whether to waive a jury trial, whether to testify, or whether to appeal — the client's attorney "has the ultimate authority to make other decisions governing trial tactics").
See Steffensen, 902 P.2d at 342.
Bearden's claim that his trial attorney was ineffective for failing to request pretrial discovery of the missing text messages and for failing to seek a proper remedy once it was clear the text messages were not recoverable
According to the confidential informant, at some point in time Bearden and the confidential informant began exchanging text messages regarding the confidential informant's next drug purchase. The confidential informant asserted that, during this exchange of text messages, it was Bearden who first suggested the idea of exchanging drugs for a gun. According to Bearden, however, it was the confidential informant who first introduced the idea of this exchange.
Shortly before Bearden's trial, it became clear that the State's investigators were unable to retrieve these text messages from the confidential informant's phone (which was a disposable TracFone). Therefore, the only evidence the State had with regard to the content of these text messages was the testimony of the confidential informant and the testimony of the trooper who viewed the text messages when they first were sent. (The trooper corroborated the confidential informant's version of events.)
Bearden's defense attorney objected to any testimony about the text messages, raising lack of foundation and hearsay grounds. The trial judge overruled these objections.
In his application for post-conviction relief, Bearden asserted that his trial attorney should have done more to try to secure the production of these text messages—messages that Bearden claimed were exculpatory. Specifically, Bearden claimed that his attorney was incompetent for failing to file a motion to compel production of these text messages during the pretrial proceedings. But nothing in Bearden's pleadings indicated that such a motion would have been successful, or even that the text messages ever existed in a retrievable form on the confidential informant's phone.
Bearden also faults his attorney for not making a "spoliation" argument once it became clear that the text messages were not retrievable. But it appears that such a spoliation argument would have been unsuccessful, given the court's related finding that there did not appear to be any bad faith involved in the loss of the text messages.
Bearden also failed to demonstrate a reasonable possibility that the missing text messages were exculpatory. Bearden claims that these text messages were important because they represented the "sole evidence of entrapment" in his case. But even if the text messages had been produced and even if they had shown, as Bearden asserts, that it was the confidential informant, not Bearden, who first suggested exchanging the gun for drugs, this would not demonstrate that Bearden was entrapped.
To establish the affirmative defense of entrapment under Alaska law, a defendant must establish that (1) a public law enforcement official engaged in activities that directly induced the defendant to commit crimes he would not have otherwise committed, and (2) that "police conduct fell below an acceptable standard for the fair and honorable administration of justice." Alaska Statute 11.81.450, Alaska's entrapment statute, further states that the persuasion or inducement employed by the police must be of a type that "would be effective to persuade an average person, other than one who is ready and willing, to commit the offense." The statute adds that an "[i]nducement or persuasion which would induce only a person engaged in an habitual course of unlawful conduct for gain or profit does not constitute entrapment."
Pascu v. State, 577 P.2d 1064, 1066-67 (Alaska 1978); accord Grossman v. State, 457 P.2d 226, 226 (Alaska 1969).
Here, regardless of whether it was Bearden or the informant who first introduced the idea of the gun-for-drugs exchange, it is clear from the actual exchange itself (which was recorded pursuant to the Glass warrant) that Bearden was a "ready and willing" participant in the exchange. We note that Bearden had already participated in two controlled buys with this confidential informant prior to the gun-for-drugs exchange in question. Given these circumstances, there is no reasonable possibility that the missing text messages would have established the defense of entrapment, even assuming that any recovered text messages would actually support Bearden's version of events. We also note that, contrary to the assumptions that underlie Bearden's arguments about the text messages on appeal, entrapment is not a defense that is argued to the jury; instead, it is a defense that is argued and decided by the trial judge.
State v. Yi, 85 P.3d 469, 472 (Alaska App. 2004).
We therefore agree with the superior court that Bearden's pleadings failed to set forth a prima facie case that his trial attorney's handling of the issues raised by the missing text messages constituted ineffective assistance of counsel.
See Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974). --------
Conclusion
The judgment of the superior court is AFFIRMED.