Summary
declaring defendant could only prevail in post-conviction relief action against appellate counsel if he could show that he would have won his appeal if an issue on appeal had been argued differently
Summary of this case from Lindoff v. StateOpinion
Court of Appeals No. A-8738.
March 30, 2005.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Richard D. Savell, Judge. Trial Court No. 4FA-03-288 Civ.
Steve L. Elliott, Hall and Elliott, Fairbanks, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
In mid-1999, Samuel K. Carter was indicted for fourth-degree controlled substance misconduct after the police found cocaine hidden in a gun case on the floor of Carter's vehicle. Carter asked the superior court to suppress the cocaine, arguing that the police obtained this evidence illegally. The superior court denied Carter's suppression motion. Carter then entered a Cooksey plea to the drug charge, preserving his right to challenge the superior court's ruling on the suppression motion. He also obtained a new attorney to handle his appeal.
Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
In Carter v. State, Alaska App. Memorandum Opinion No. 4496 (November 21, 2001), 2001 WL 1477920, we analyzed the facts of the encounter between Carter and the police, and we concluded that the police acted lawfully when they entered Carter's vehicle, searched the gun case, and discovered the cocaine.
Following our affirmance of Carter's conviction, Carter (now represented by a third attorney) filed a petition for post-conviction relief. In this petition, Carter argued that his original appellate attorney failed to competently argue the suppression issues to this Court. Carter's petition was supported by the affidavit of his original appellate attorney, who declared (1) that he had not perceived all of Carter's potential arguments for suppression of the cocaine until he read this Court's opinion, and (2) that he now believed that he had incompetently argued the suppression claim.
Superior Court Judge Richard D. Savell concluded that, despite this attorney affidavit, Carter's petition for post-conviction relief failed to state a prima facie claim of ineffective assistance of counsel. Judge Savell therefore dismissed Carter's petition, and Carter now appeals that decision. As we explain in more detail in this opinion, we conclude that Carter's petition is inadequate in two crucial respects.
First, despite Carter's attorney's current misgivings about his handling of the appeal, Carter's petition does not set forth a prima facie case that his attorney's performance fell below the minimum level of competence expected of attorneys skilled in the criminal law.
Second, whatever might be said about the attorney's handling of the appeal, Carter must show that he was prejudiced by his attorney's purported incompetence. In the context of the current litigation, Carter's burden of demonstrating prejudice means that Carter must convince us that our decision of his appeal would have been different if we had been presented with the arguments that Carter now claims his original appellate attorney should have made. But we have examined Carter's new arguments, and we are not convinced that our original decision was wrong.
Synopsis of the underlying facts
On July 11, 1999, at the start of his shift, Fairbanks Police Sergeant Eric Jewkes was briefed on a report involving Carter. According to this report, Carter was a major cocaine distributor in the Fairbanks area. The report mentioned that Carter drove a black Jaguar, and the report identified the license plate number of this car. The report further stated that Carter was known to carry several types of weapons, including knives, handguns, assault rifles, and hand grenades. Sergeant Jewkes was also aware that Carter was a convicted felon.
About 1:45 a.m., Jewkes spotted a black Jaguar in the rear parking lot of the Elbow Room, a Fairbanks bar. The car was not running and its lights were off. Because Jaguars are not common in Fairbanks, Sergeant Jewkes suspected that this was Carter's car. Jewkes parked his patrol car and approached the Jaguar on foot.
From midway across the parking lot, Jewkes turned his flashlight on for about two seconds to see if anyone was in the Jaguar; he saw that someone was inside the vehicle.
As Jewkes approached the rear bumper of the Jaguar, he again turned on his flashlight to determine who was in the car, and what this person was doing. Jewkes saw that the driver was manipulating an object in his hands. When Jewkes got to the side of the Jaguar, he could see that the driver — Carter — had something between his legs, and that he was holding onto this object with his hands. Apparently, Carter did not realize that Jewkes was there until Jewkes knocked on the car window. At this point, Carter put the object down between his legs and onto the floorboard in front of him.
Jewkes gestured to Carter, making a circular motion with his hand in the manner of someone rolling down a manual window. Carter pushed a button on the center console between the seats and lowered the electric window. Jewkes asked Carter what he was doing. Carter replied that he was about to go into the Elbow Room. Jewkes asked Carter if he owned the car, and Carter answered that he was in the process of buying it. Carter handed Jewkes the registration for the car and his driver's license. Jewkes then asked Carter what he had put on the floorboard between his legs. Carter denied putting anything down there.
Because Jewkes knew that Carter was lying, and based on what Jewkes had been told about Carter's criminal activities and his reputation for being armed, Jewkes felt concerned for his own safety. He asked Carter to step out of the car. Carter got out of the car without objection, and he stood a few feet away from Jewkes, near the rear of the vehicle on the driver's side.
Jewkes, still standing at the driver's side door, looked inside the car and saw a small, black, soft-sided gun case lying on the floorboard below the driver's seat. Jewkes informed Carter that he had seen a gun case in the car, and that he wanted to make sure that it did not contain any weapons. Carter told Jewkes that this object was not a gun case, and that he had no weapons. Carter also stated that he would not let Jewkes look inside the car without a search warrant.
Despite Carter's protestation, Jewkes could see that the object on the floor of the Jaguar was obviously a gun case. He opened the car door and picked up the gun case. The back zipper of the case was torn away, and as soon as Jewkes picked up the case, he was able to see cocaine (but no gun) inside the case. Jewkes put the gun case back down on the floorboard, but he impounded the Jaguar so that he could obtain a search warrant for the car.
(During the ensuing execution of the search warrant for the car, the police obtained more evidence against Carter.)
Our decision of Carter's original appeal
In Carter's original appeal, he contended that Jewkes lacked the authority to order him out of the car and search his belongings. We agreed with Carter that "a police officer cannot, as a routine matter, approach a citizen who is lawfully parked in a car . . . and order that person out of the car to conduct a pat-down search". But we held that Jewkes's actions were justified in Carter's case, based on what the officer knew about Carter and based on Carter's false denial that he had placed anything on the floorboard. We concluded that "[u]nder these circumstances, and given the information that he had about Carter, Jewkes had specific, articulable, . . . objective reasons to conclude that Carter might have placed a weapon on the floorboard. . . . In response to this concern, Jewkes's actions [of ordering Carter out of the car and shining his flashlight into the car] appear limited and reasonable." We further concluded that "[o]nce [Jewkes] saw the gun case, . . . [he] could reasonably pick up the gun case to determine whether it contained a weapon."
Carter v. State, Alaska App. Memorandum Opinion No. 4496, p. 5, 2001 WL 1477920 at *3.
Id. at 6, 2001 WL 1477920 at *3.
Id.
(Our conclusion that Jewkes was authorized to examine the gun case led to the further conclusion that the cocaine was admissible — because the trial court found that, once Jewkes picked up the gun case, "he saw [the] cocaine in plain view".) Carter's claim for post-conviction relief
Id.
The encounter between Carter and Sergeant Jewkes might conceivably be divided into several stages: Jewkes approached Carter's vehicle; he motioned for Carter to roll down the window; he questioned Carter about the object that Carter had been handling as the officer walked up; he directed Carter to get out of the vehicle; he shined his flashlight into the interior of the now-vacant vehicle and observed the gun case; he reached into the vehicle and retrieved the gun case; and, finally, through the gap left by the torn-away zipper, he observed cocaine.
A defense attorney might potentially raise a Fourth Amendment objection to any of Jewkes's various actions during this encounter. Carter's original appellate attorney chose to focus on Jewkes's action of ordering Carter to get out of the vehicle. The attorney argued that Jewkes had had no authority to do this. The attorney further argued that if Carter had not been ordered out of the car, Jewkes never would have observed the gun case on the floorboard — the observation that gave Jewkes probable cause to believe that Carter, a convicted felon, was in possession of a concealable firearm.
In his petition for post-conviction relief, Carter argues that, notwithstanding any Fourth Amendment objection that might be made to Jewkes's ordering Carter out of the vehicle, his original appellate attorney should have focused on Jewkes's act of reaching into the vehicle and retrieving the gun case. This act, Carter now contends, was a clear violation of the Fourth Amendment. Carter further contends that any competent defense attorney would have perceived that the way to win the appeal was to challenge Jewkes's entry into the car and his retrieval of the gun case.
To prevail on this claim, Carter must show that any minimally competent criminal defense attorney would have pursued the suppression issue using the theory that Carter now proposes. Or, stated another way, Carter must show that his attorney's failure to attack the search and seizure on this theory fell below the minimal level of competence expected of criminal law practitioners.
See Risher v. State, 523 P.2d 421, 424 (Alaska 1974); State v. Jones, 759 P.2d 558, 568 (Alaska App. 1988).
In addition, Carter must show that his attorney's purported incompetence actually prejudiced him. Here, Carter does not assert that his trial attorney failed to competently investigate the facts of the case, nor does Carter claim that previously unrevealed aspects of the encounter now demonstrate that Jewkes violated Carter's Fourth Amendment rights. Rather, Carter asserts that his appellate attorney incompetently handled his appeal — that this appellate attorney incompetently failed to perceive the legal significance of the undisputed facts. Carter contends that his appellate attorney should have analyzed the facts differently and should have presented a different argument as to why those facts revealed a Fourth Amendment violation.
This being so, Carter can meet his burden of showing prejudice only by convincing us that, had the suppression claim been argued on appeal as Carter now proposes, Carter would have won the appeal — i.e., that this Court would have reversed Carter's conviction.
See State v. Steffensen, 902 P.2d 340, 342 (Alaska App. 1995).
We turn first to the question of whether Carter's petition for post-conviction relief presents a prima facie case of attorney incompetence. Carter points to the affidavit submitted by his original appellate attorney — the affidavit in which that attorney declares that, after reading this Court's opinion, he would have argued Carter's appeal differently. Carter asserts that this affidavit is sufficient, standing alone, to establish a prima facie case of attorney incompetence.
But both this Court and the Alaska Supreme Court have held that a defense attorney's after-the-fact assertion of incompetence can not be taken at face value; rather, it must be evaluated in light of the facts of the case. We recently explained this point in Simeon v. State:
It is true that Simeon's attorney stated that she felt that her failure to request a lesser included offense instruction was a mistake. But this statement only tends to show that with hindsight, and an unfavorable verdict, the attorney wished that she would have requested a lesser included offense instruction. The attorney's statement does not tend to establish that her decision to refuse to request a lesser included offense instruction was an unreasonable tactic. Furthermore, as the supreme court pointed out in Dolchok v. State, [ 639 P.2d 277, 295 (Alaska 1982),] a defense counsel's negative evaluation of her own performance may be more a reflection of her dedication to her representation of the client, and remorse at a disappointing result, than it is an objective assessment of her representation. Accordingly, we conclude that . . . Simeon's application was deficient because he . . . presented [no] evidence that his attorney's tactic of refusing to request a lesser included offense instruction was unreasonable. [The superior court] therefore did not err in dismissing Simeon's application for post-conviction relief.
90 P.3d 181, 185 (Alaska App. 2004) (footnotes omitted).
For these same reasons, Carter was obliged to give the superior court more than simply his former appellate attorney's mea culpa. Carter was obliged to present a prima facie case that his former attorney had indeed overlooked a crucial aspect of the case — an aspect so obvious, and so obviously important, that any minimally competent criminal defense attorney would have seen it and pursued it.
In his present brief to this Court, Carter concedes that Sergeant Jewkes could lawfully order Carter to get out of his vehicle. Carter also apparently concedes that, once Carter got out of the vehicle and Jewkes saw the gun case lying on the floorboard where Carter had been sitting, Jewkes had probable cause to believe that the gun case did in fact contain a handgun — and, thus, the officer had probable cause to arrest Carter for being a felon in possession of a concealable firearm.
AS 11.61.200(a)(1) (third-degree weapons misconduct).
But Carter argues that, once matters reached this point, Jewkes could not enter or reach inside the vehicle to retrieve the gun case. Rather, according to Carter, Jewkes had only one lawful option with respect to the gun case: impound the vehicle and seek a warrant to authorize seizure of the case.
Carter's brief to this Court does not contain any legal analysis to back up this assertion. Rather, Carter relies solely on the Fourth Amendment discussion contained in various pleadings presented to the superior court. This type of appellate briefing is legally inadequate; an appellate brief must stand on its own. The governing rule was explained in McCoy v. State:
[The defendant] points out that he did mention [this argument] in his trial court pleading, and that this pleading was included in his excerpt of record on appeal. But the fact that an argument may be mentioned in a defendant's trial court pleadings does not preserve the argument for appeal. A party's briefs must contain the factual and legal arguments that the party wishes the appellate court to consider. A party may not argue a point by incorporating trial court pleadings by reference.
80 P.3d 755, 756 (Alaska App. 2002), citing Anchorage Nissan, Inc. v. State, 941 P.2d 1229, 1240 (Alaska 1997).
Nevertheless, in the interest of justice, we have chosen to ignore this defect in Carter's brief, and we have examined the arguments contained in his trial court pleadings. In those trial court pleadings, Carter argued that Jewkes's act of reaching into the vehicle to retrieve the gun case was not justified under any exception to the warrant requirement — and, specifically, that it was not justifiable as a search incident to arrest, nor as a component of a frisk for weapons, nor as a search of a movable vehicle, nor as a pre-emptive seizure of readily destructible or concealable evidence.
We find the arguments in Carter's trial court pleadings unconvincing. Under Alaska law, when "[p]olice officers . . . make a legitimate investigative stop of an automobile", the officers "may conduct a limited search for weapons, for their own protection . . . if they have reasonable suspicion that occupants of the automobile are armed". And, even though the officers may have removed the suspect from the vehicle before conducting this search for weapons, the scope of the authorized search is determined by the location of the suspect at the time of the stop, not at the time of the search.
Dunbar v. State, 677 P.2d 1275, 1277 (Alaska App. 1984).
Id.
When the police conduct a search for weapons incident to an arrest, they may open a purse, or the pocket of a jacket, or any similar closed container "immediately associated with the person". However, with respect to closed containers of a type not "immediately associated with the person", the police may open the container to search for weapons "only if they have reason to believe that it contains a weapon".
Crawford v. State, 68 P.3d 1281, 1284 (Alaska App. 2003); Dunn v. State, 653 P.2d 1071, 1081-82 (Alaska App. 1982).
Crawford, 68 P.3d at 1284, citing Dunn, 653 P.2d at 1082.
Under these rules, if the retrieval of the gun case from Carter's vehicle had been a search incident to arrest, then Jewkes would have been authorized to open the gun case. This would be true regardless of whether the case was the type of container "immediately associated with the person" — because Jewkes observed the gun case lying on the floorboard where Carter had just been sitting, and Jewkes obviously had good reason to believe that the gun case contained a gun.
Moreover, Alaska law apparently calls for the same result even if Jewkes's act of reaching into the car was a component of a protective search for weapons. In Dunbar v. State, this Court indicated that the same rules governing the scope of searches incident to arrest should apply to weapons searches conducted during an investigative stop.
Dunbar, 677 P.2d at 1277.
We need not definitely resolve this issue in Carter's case. It is sufficient to point out that neither Carter's brief to this Court, nor his trial court pleadings, mention the case law we have just been discussing. Carter fails to present any reason to believe that these prior decisions are inapplicable to his case, or that these prior decisions might be distinguishable on their facts, or that these prior decisions were wrongly decided.
Accordingly, we agree with the superior court that Carter's petition for post-conviction relief failed to present a prima facie case that his original appeal was incompetently argued. Based on the case law we have just been discussing, a competent defense attorney could reasonably conclude that, once Sergeant Jewkes saw the gun case lying on the floorboard of the Jaguar, he could lawfully retrieve the gun case from the car — and that, therefore, the only way to win suppression of the evidence was to convince the court that Jewkes had not been empowered to order Carter to get out of the car (and then argue that Jewkes's observation of the gun case was the fruit of that illegal action).
For the same reason, Carter's petition fails to set forth a prima facie case that he was prejudiced by the manner in which his original appellate attorney argued Carter's appeal. Even after considering the legal arguments contained in Carter's post-conviction relief pleadings, we remain convinced that Alaska law supports our resolution of Carter's appeal.
Conclusion
The judgement of the superior court is AFFIRMED.