Opinion
Court of Appeals No. A-11855 No. 6419
01-11-2017
JASON CODAY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. June Stein, 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-10-1030 CI
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge. Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. June Stein, 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).
In 2006, Jason Coday shot and killed a complete stranger, Simone Kim, outside the Fred Meyer store in Juneau. At trial, Coday's attorney argued that Coday was innocent and that the eyewitnesses who testified had been mistaken in their identification of Coday as the shooter. The jury rejected this defense, convicting Coday of first-degree murder and third-degree weapons misconduct. At sentencing, Coday received a composite term of 101 years to serve. Coday's convictions were later affirmed on direct appeal to this Court.
Coday v. State, 2009 WL 1259352, at *1 (Alaska App. May 6, 2009) (unpublished).
AS 11.41.100(a)(1)(A) & AS 11.61.200(a)(3).
See Coday, 2009 WL 1259352, at *3-4.
Following the resolution of his direct appeal, Coday filed an application for post-conviction relief. In the application, Coday asserted that his trial attorney had been ineffective for failing to adequately investigate and raise a mental disease or defect defense and that his attorney was also ineffective for failing to raise concerns prior to the trial about Coday's competency to stand trial. Coday also argued that his attorney had been ineffective for failing to seek a psychiatric examination in aid of sentencing.
The State filed a motion to dismiss Coday's application, contending that it failed to state a prima facie case of ineffective assistance of counsel. The superior court ultimately granted the State's motion and dismissed Coday's post-conviction claims on the pleadings, concluding that they failed to allege facts which, if proved, would show that the defense attorney's strategic decisions were incompetent under the circumstances.
Coday appeals the dismissal of his post-conviction relief application. For the reasons explained here, we affirm the judgment of the superior court.
Background facts
On August 4, 2006, Jason Coday approached Simone Kim outside the Juneau Fred Meyer store and shot him several times with a rifle. Coday and Kim were strangers, and the attack was unprovoked. At trial, two witnesses testified that Coday walked up to Kim, a painter, raised a sawed-off rifle, and then shot Kim in the head and upper torso. Other witnesses testified to seeing Coday take a rifle from a gun shop the previous day.
Id. at *1.
Id.
Id.
Id.
Prior to trial, Coday's defense attorney retained a private forensic neuropsychologist, Dr. Fred Wise, to evaluate Coday for purposes of determining whether to raise a mental disease or defect defense. Although Dr. Wise did not produce a formal report, the attorney recalled discussing Coday's history of mental health issues and past methamphetamine abuse with Dr. Wise and also recalled discussing the possibility that, at the time of the shooting, Coday might have been suffering from methamphetamine-induced psychosis and/or damage to the frontal lobe of his brain caused by methamphetamine abuse. After evaluating Coday, Dr. Wise was of the opinion that Coday did not have any viable mental disease or defect defenses under Alaska law. Coday's attorney did not seek any additional neurological or psychiatric evaluations and instead made the decision to pursue a mistaken-identity defense at trial — which was the defense that Coday himself insisted upon because Coday claimed he was innocent.
As already noted, the jury rejected the mistaken-identity defense at trial and convicted Coday of first-degree murder and third-degree weapons misconduct.
At sentencing, Coday did not present any evidence concerning his mental health, although his attorney referenced possible mental health and substance abuse issues in his arguments in favor of rehabilitation. The author of Coday's presentence report suggested that Coday's conduct "warrant[ed] a psychological evaluation," and the report included some information from the Department of Corrections mental health clinicians and personnel regarding Coday's odd behavior while incarcerated. But no psychological evaluation was requested, and therefore none was ordered by the judge.
At sentencing, the judge imposed 99 years on the first-degree murder conviction and 2 consecutive years on the third-degree weapons misconduct conviction, for a composite sentence of 101 years to serve. The judge did not order any restrictions on Coday's eligibility for discretionary parole.
See former AS 12.55.115 (2014), later amended by ch. 36, § 85, SLA 2016.
Coday appealed his convictions to this Court, and we affirmed his convictions.
Coday, 2009 WL 1259352, at *3-4.
Following resolution of his direct appeal, Coday filed an application for post-conviction relief in the superior court, alleging, inter alia, that he had received ineffective assistance of counsel from his trial attorney. In his affidavit accompanying the application, Coday claimed that he was suffering from a mental illness (methamphetamine-induced psychosis) at the time of the shooting, and he argued that his attorney was ineffective for failing to investigate and raise a defense based on this purported mental illness. Coday also argued that his attorney was ineffective for failing to raise concerns about Coday's competency to stand trial, and for failing to obtain a psychiatric examination in aid of sentencing after Coday's trial was over.
See AS 12.47.010(a) (providing for affirmative defense of insanity); AS 12.47.020 (describing procedural requirements for cases where the defendant claims that mental disease or defect negates the culpable mental state).
See AS 12.47.100(a) ("A defendant who, as a result of mental disease or defect, is incompetent ... may not be tried, convicted, or sentenced for the commission of a crime so long as the incompetency exists.").
See, e.g., Adams v. State, 521 P.2d 516, 518-19 (Alaska 1974) (noting that psychological evaluations are helpful, but not indispensable, for imposing sentence).
In response to Coday's allegations, Coday's trial attorney submitted his own affidavit in which he acknowledged that he was aware of Coday's past mental health issues and his methamphetamine abuse, which is why he retained Dr. Wise to evaluate Coday. The attorney stated that he relied on Dr. Wise's expert opinion when he made his decision to forgo a mental disease or defect defense in favor of the mistaken-identity defense that Coday insisted on pursuing. The attorney also stated that, despite Coday's known mental health issues and his sometimes odd behavior, he did not have any concerns about Coday's competency to stand trial.
In his post-conviction relief application, Coday did not dispute his trial attorney's version of events; nor did he offer any competing expert opinion to rebut Dr. Wise's conclusions. Instead, he simply continued to argue that his attorney should have done more to investigate the possibility of methamphetamine-induced psychosis. Coday also argued that, given his mental health issues, his attorney was incompetent for giving any consideration to Coday's desire to pursue a mistaken-identity defense.
The State moved to dismiss Coday's post-conviction relief application for failure to state a prima facie case that his attorney's decisions were incompetent. The superior court agreed with the State and dismissed the application.
This appeal followed.
Relevant law and standard of review
To present a prima facie case of ineffective assistance of counsel, a defendant must plead facts that, if true, would be sufficient to establish that (1) his or her attorney's performance fell below the objective standard of minimal competence in criminal law; and (2) there is a reasonable possibility that the incompetent performance contributed to the outcome. Because the law presumes that an attorney's actions are competent and that an attorney's actions and decisions are based on sound tactical considerations, the applicant bears the burden of affirmatively rebutting this presumption through the specific facts alleged in their pleadings. In the absence of specific factual assertions or evidence that, if proved, would rebut the possibility of a reasonable tactical explanation for counsel's conduct, the presumption of competence remains unrebutted, and there is no prima facie case of ineffective assistance.
See State v. Jones, 759 P.2d 558, 567-68 (Alaska App. 1988); see also Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).
See Steffensen v. State, 837 P.2d 1123, 1127 (Alaska App. 1992); Jones, 759 P.2d at 569-70.
Jones, 759 P.2d at 569-70.
Whether an application for post-conviction relief sets forth a prima facie case of ineffective assistance of counsel is a question of law that this Court reviews de novo.
David v. State, 372 P.3d 265, 269 (Alaska App. 2016).
Coday's claim that his attorney was ineffective for failing to pursue a mental disease or defect defense at trial
To present a prima facie case of ineffective assistance of counsel with regard to his attorney's failure to raise a mental disease or defect defense, Coday needed to assert specific facts that, if proved, were sufficient to establish that (1) no competent attorney would have failed to pursue a mental disease or defect defense under these circumstances; and (2) there is a reasonable possibility that, if a mental disease or defect defense had been pursued, the jury's verdict would have been different.
See Risher, 523 P.2d at 424-25.
We note at the outset that this is not a case where the attorney ignored evidence of mental health issues or where the attorney never investigated the possibility of a mental disease or defect defense. To the contrary, the record is clear that the defense attorney hired an expert neuropsychologist to evaluate Coday specifically for the purpose of determining if he had a viable mental disease or defect defense. The attorney then relied on the expert's medical opinion that no such defenses were available.
In his application for post-conviction relief, Coday does not dispute that his attorney obtained the evaluation; nor does he dispute that the expert's opinion was unfavorable. Instead, he simply asserts that the trial attorney should have done more to investigate the possibility of a mental disease or defect defense based on methamphetamine-induced psychosis.
But Coday provides no reason to believe that the expert hired by his attorney was unqualified to render the opinion he gave. Nor does he provide his own forensic expert to counter Dr. Wise's expert opinion.
Instead, Coday's post-conviction relief application relies solely on: (1) his own affidavit, which states that he "believe[s] that at the time of the offense [he] was suffering from a mental illness"; (2) his past medical records (mainly from 2005), which showed that he had prior mental health issues related to his methamphetamine abuse; and (3) his more current medical records from the Department of Corrections, which indicate that he has a personality disorder with avoidant and schizoid features and that he may suffer from psychosis. Coday's application also includes documents from the Department of Corrections reporting that Coday had isolated episodes of behavior during his pretrial incarceration that seemed drug related and/or indicative of some form of psychosis.
The DOC records indicate that Coday has been diagnosed with a "rule out" Axis I diagnosis of "psychosis versus schizoptypal traits" and an Axis II diagnosis of a personality disorder not otherwise specified with avoidant and schizoid features.
These documents suggest that Coday may have been suffering from some mental health issues, possibly drug related, at the time of the shooting. But they do not, standing alone, show that his attorney was incompetent for concluding that he did not have a meritorious mental disease or defect defense that he could have raised at trial. Nor do they show that his attorney was incompetent for relying on the opinion of the forensic expert that he retained to evaluate Coday for this purpose — particularly given Coday's own insistence on pursuing a mistaken-identity defense.
We therefore agree with the superior court that Coday's post-conviction relief application failed to present a prima facie case of ineffectiveness, and that dismissal on the pleadings was therefore appropriate.
Coday also contends that his attorney acted incompetently when he considered Coday's desire to pursue a mistaken-identity defense as part of the calculus of how to proceed at trial. We disagree. Coday is correct that it is the attorney, not the defendant, who ultimately chooses the defense strategy. But this does not mean that a defendant's input is irrelevant to the strategic decisions that the defense attorney must make. As discussed in the next section, Coday's attorney was not concerned that Coday was incompetent to assist in his own defense, and Coday has not shown that he was incompetent to assist in his own defense when these decisions were being made. Given these circumstances, and given the attorney's reliance on an expert opinion that there was no viable mental disease or defect defense, we conclude that Coday has not established a prima facie case that his attorney was incompetent for considering Coday's own strongly stated wishes as part of the attorney's determination of what defenses to raise at trial.
See 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").
Coday's claim that his attorney was ineffective for failing to raise concerns about his competency
In his application for post-conviction relief, Coday also asserted that his attorney was ineffective for failing to raise concerns about Coday's competency to stand trial. But the record is clear that, despite Coday's known mental health issues and sometimes odd behavior, his attorney did not have any concerns that Coday was incompetent to stand trial.
See AS 12.47.100(a) (defining incompetency as the defendant's inability "to understand the proceedings against [him] or to assist in [his] own defense").
In support of his claim that he was incompetent to stand trial, Coday provided documentation from the Department of Corrections indicating that he exhibited isolated incidents of psychotic-like behavior while in pretrial detention. He also attached Department of Corrections' reports of those incidents. But Coday did not offer any evidence to suggest that his cognitive difficulties were so pervasive as to render him incapable of "understand[ing] the proceedings against [him] or assist[ing] in [his] own defense." There is also nothing in the record to suggest that the trial court had any concerns regarding Coday's competency despite his odd behavior and apparent mental health issues. As the Alaska Supreme Court has noted:
Id.
The presence of some degree of mental illness is not an invariable barrier to prosecution. There may be an impaired functioning of some aspects of the defendant's personality and yet he may still be minimally able to aid in his defense and to understand the nature of the proceedings against him.Thus, given the lack of any evidence to suggest that Coday's purported mental health issues made him incompetent to stand trial, we affirm the superior court's dismissal of this claim for failure to state a prima facie case.
See Schade v. State, 512 P.2d 907, 914 (Alaska 1973) (citing Wilson v. United States, 391 F.2d 460, 463 (D.C. Cir. 1968)).
We disagree, however, with part of the superior court's rationale for dismissing this claim. In its order dismissing Coday's post-conviction relief application, the superior court characterized the attorney's failure to raise competency as a valid "tactical decision." But there is nothing in the record to suggest that the attorney made "a tactical decision" to not raise concerns about Coday's competency. To the contrary, the record is clear that the attorney did not raise concerns about competency because he did not have any such concerns. As the attorney stated, "Mr. Coday made some decisions that did not seem to be in his best interests, including the decision to wear his bright red 'max' jumpsuit at trial ... and at times said some strange things. However, I did not believe [his behavior] rose to the level of legal incompetence under title 12."
On appeal, Coday challenges the superior court's assumption that an attorney can make a legitimate tactical decision not to alert the court to a defendant's apparent incompetency to stand trial. We too question the legitimacy of such a defense "tactic," given that the United States Supreme Court has held that it violates due process of law to try a defendant who is incompetent to stand trial. We note in this context that courts in other jurisdictions have held that the attorney-client privilege does not apply to an attorney's own observations of his client's incompetency precisely because of the constitutional rights implicated by proceeding to trial with an incompetent defendant.
Drope v. Missouri, 420 U.S. 162, 172 (1975); Pate v. Robinson, 383 U.S. 375, 378 (1966); see also Indiana v. Edwards, 554 U.S. 164, 170 (2008) ("[T]he Constitution does not permit trial of an individual who lacks 'mental competency.'").
Darrow v. Gunn, 594 F.2d 767, 774 (9th Cir. 1979); Clanton v. United States, 488 F.2d 1069, 1070-71 (5th Cir. 1974); Howell v. United States, 442 F.2d 265, 268-69 (7th Cir. 1971); United States v. Kendrick, 331 F.2d 110, 113-14 (4th Cir. 1964); Bishop v. Superior Court, 724 P.2d 23, 28-30 (Ariz. 1986); State v. Jensen, 174 N.W.2d 226, 230 (Minn. 1970); People v. Kinder, 512 N.Y.S.2d 597, 599-600 (N.Y. App. 1987); Manning v. State, 766 S.W.2d 551, 556-58 (Tex. App. 1989); see also McCormick on Evidence (5th ed. 1999), § 89 n.11, Vol. 1, pp. 356-360.
However, we need not reach the question of whether an attorney can make a valid "tactical" decision not to raise competency when his or her client is arguably incompetent. The record here is clear that Coday's attorney had no concerns about Coday's competency to stand trial, and Coday has presented no reason to think that he was incompetent to stand trial.
Coday's claim that his attorney was ineffective for failing to request that the court order a psychiatric examination in aid of sentencing
As noted above, the presentence report in Coday's case suggested that a psychiatric evaluation would be "warranted" in this case. Coday argues that his attorney's failure to request that the court order such an evaluation in aid of sentencing constituted ineffective assistance of counsel. According to Coday, a psychiatric examination would have verified Coday's self-diagnosis of methamphetamine-induced psychosis and would have resulted in a more lenient sentence than the 101 years that Coday received.
But as the superior court correctly noted, Coday had a Fifth Amendment right not to participate in a psychiatric examination in aid of sentencing, and he has not asserted that he would have been willing, at the time, to waive this right in order to participate in such an evaluation had one been ordered. Indeed, it is not clear from the record currently before us whether Coday was continuing to assert his innocence at sentencing.
See Estelle v. Smith, 451 U.S. 454, 466-69 (1981).
Coday has also failed to show that the information provided by such an evaluation would have materially changed the judge's view as to the appropriate sentence. Notably, Coday has not provided an expert evaluation that would be equivalent to an evaluation in aid of sentencing. Moreover, the presentence report already contained the summary of observations from a mental health clinician whom Coday had been seeing since his arrest.
Cf. Campbell v. State, 594 P.2d 65, 68 (Alaska 1979) (noting, in a pre-Estelle case, that psychiatric examinations are typically not "indispensable or necessary" at sentencing, although they may be helpful). --------
Given these circumstances, we agree with the superior court that Coday's pleadings fail to state a prima facie case of ineffective assistance of counsel on this claim.
Conclusion
We AFFIRM the judgment of the superior court.