Opinion
Court of Appeals No. A-11247 No. 6222
07-29-2015
MIKE ETUCKMELRA, JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Brooke V. Berens, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, 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. 3DI-07-187 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge. Appearances: Brooke V. Berens, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury convicted Mike Etuckmelra, Jr., of felony driving under the influence, refusal to submit to a chemical test, and driving while license revoked based on conduct that took place in June 2005. At trial, Etuckmelra's defense was that he was not driving. His attorney did not argue that he was not intoxicated, nor did he directly challenge the State's evidence of intoxication.
Etuckmelra did not appeal his conviction. Instead, he filed an application for post-conviction relief under Alaska Criminal Rule 35.1, arguing that his trial attorney provided ineffective assistance of counsel by not pursuing a not-intoxicated defense in addition to, or instead of, the not-driving defense. Etuckmelra's application was denied following an evidentiary hearing. After hearing testimony from Etuckmelra's trial attorney and an expert criminal defense attorney, the superior court ruled that the trial attorney's decision to pursue only a not-driving defense was a reasonable tactical decision that a competent attorney could make given the circumstances of Etuckmelra's case.
Etuckmelra appeals that decision. For the reasons explained here, we affirm the superior court's denial of Etuckmelra's application for post-conviction relief.
Factual background and prior proceedings
On June 8, 2005, Herb Fassler called the Dillingham Police Department to report a possible drunk driver after he saw what he characterized as a "pretty drunk" Etuckmelra driving himself and several passengers.
Dillingham Police Officer Derrick Westlake responded to the call and found Etuckmelra sitting in the driver's seat of his truck at the Dillingham boat harbor with the keys in the ignition. Officer Westlake later testified that when he approached the truck, Etuckmelra "automatically said that he wasn't the driver."
Etuckmelra appeared intoxicated and told the officer that he had drunk "too many" drinks. Officer Westlake noticed that Etuckmelra's speech was loud and heavily slurred, and that Etuckmelra's head was swaying. When Etuckmelra got out of his vehicle, he had to lean on his truck to keep his balance, and Officer Westlake immediately smelled alcohol.
Etuckmelra refused to take field sobriety tests. He was arrested for driving under the influence. He also later refused to submit to a breath test at the station.
Etuckmelra was subsequently charged with felony DUI, felony refusal, driving while license revoked, and seven counts of reckless endangerment (one count for each passenger in his truck).
AS 28.35.030(a); former AS 28.35.030(n) (pre-October 2005).
AS 28.35.032(a); former AS 28.35.032(p) (pre-October 2005).
AS 28.15.291(a)(1).
AS 11.41.250(a).
At trial, all seven passengers testified that Etuckmelra was driving, but only one was asked whether Etuckmelra's driving was impaired. That passenger, Marcus Toyukak, testified that although Etuckmelra was drinking, Etuckmelra "was okay for a minute. He was driving okay." But he added that he decided to get out of the truck because Etuckmelra had been drinking, and he thought the situation was "messed up."
Fassler, the man who called the police to report Etuckmelra, testified that he had approached Etuckmelra's truck and spoken to a "pretty drunk" Etuckmelra. But Fassler also said that Etuckmelra was wearing a seafoam green shirt and had hair that stuck out over his ears — testimony that conflicted with Officer Westlake's description of Etuckmelra and contemporaneous photographic evidence that showed Etuckmelra wearing a white t-shirt with hair too short to stick out over the ears.
During closing arguments, Etuckmelra's attorney emphasized the discrepancy between Fassler's description of the drunk driver's appearance and Etuckmelra's appearance. The defense attorney also argued that the passengers had been too drunk or sleepy to accurately know who was driving and suggested that one of the passengers, Gus Johnson, might actually have been the driver.
The jury convicted Etuckmelra of felony DUI, felony refusal, and driving while license revoked. The jury was unable to reach a verdict on the reckless endangerment charges, and these charges were later dismissed.
Following his convictions, Etuckmelra filed an application for post-conviction relief, alleging that his attorney had provided ineffective assistance of counsel by failing to argue that Etuckmelra was not impaired and by failing to present evidence from the passengers that Etuckmelra had driven normally. Etuckmelra also submitted an affidavit from an experienced criminal defense attorney asserting that no competent attorney would have neglected to pursue a not-intoxicated defense under the circumstances of Etuckmelra's case.
Superior Court Judge Fred Torrisi held an evidentiary hearing regarding Etuckmelra's post-conviction relief application. Several of the passengers testified that they remembered Etuckmelra driving "good" or "okay". These passengers also questioned whether Fassler had actually approached the truck or only seen Etuckmelra from a distance.
Etuckmelra's trial attorney testified that he had presented a not-driving defense and had not pursued a not-intoxicated defense because it was consistent with what Etuckmelra initially claimed, and continued to claim, was the truth. Etuckmelra had admitted to the officer that he had "too many drinks" and had told the officer that he had not been driving. And Etuckmelra continued to maintain, in conversations with his attorney, that he had not been driving, but that he had been drunk. The attorney was therefore concerned that if Etucklmelra chose to testify, he was likely to undermine any defense other than a not-driving defense.
Etuckmelra's trial attorney also stated that he did not believe a not-intoxicated defense would be credible in Etuckmelra's case given the evidence of intoxication, which included the officer's observations of Etucklmelra and the recording of the interaction with the officer in which the jury would hear Etuckmelra's slurred speech.
In addition, Etuckmelra's attorney stated that the not-driving defense was the only "complete defense" available to Etuckmelra and a not-intoxicated defense would not have provided a defense to the felony refusal charge. The attorney noted that Etucklmera had previously refused a plea offer that would have allowed him to plead to either the felony refusal or the felony driving under the influence, suggesting that he was not interested in a trial where there was no defense to the refusal.
See Patterson v. Anchorage, 815 P.2d 390, 393 (Alaska App. 1991) (driving or operating is an element of refusal).
Etuckmelra's attorney also recalled that either he or his colleagues had contacted the passengers in the car prior to trial, and he testified that, although he did not remember which passengers he or his colleagues had contacted, he likely chose not to ask the passengers about Etuckmelra's level of intoxication based on their unfavorable answers during the pretrial interviews. The attorney conceded that if the passengers had been able to give "credible testimony" that Fassler did not approach the vehicle, that would have lessened the reliability of Fassler's opinion that Etuckmelra was drunk.
The defense expert testified that Etuckmelra's attorney had provided ineffective assistance of counsel because "any reasonably competent DUI defense attorney" would have pursued a not-intoxicated defense in a case like this — that is, a case without a breath test result or field sobriety tests, no evidence of erratic driving, and possible evidence of good driving. The defense expert stated that the remote possibility that Etuckmelra might take the stand and testify inconsistently with a not-intoxicated defense did not justify the attorney's failure to pursue the only viable defense Etuckmelra had.
The superior court denied Etuckmelra's application for post-conviction relief in a written order, finding that it was reasonable for Etuckmelra's attorney to pursue only a not-driving defense given (1) Etuckmelra's statements to the officer that he had consumed "too many"; (2) the strong evidence of intoxication presented at trial, including the police recording that documented Etuckmelra's slurred speech; (3) Etuckmelra's continued insistence to his attorney that he was not driving and the likelihood that he would continue with that claim if he chose to testify at trial; (4) Etuckmelra's decision not to accept the offered plea agreement; and (5) the fact that the only complete defense in Eutckmelra's case was a not-driving defense. The superior court further found that the passengers' testimony about the quality of Etuckmelra's driving and their testimony that Fassler might not have approached the truck was not particularly credible or significant given their own states of intoxication and given the State's strong evidence of intoxication which included Fassler's observations, the officer's own observations, the recording of the interaction between the officer and Etuckmelra, and Etuckmelra's own admission that he had had "too many".
The court therefore concluded that the trial attorney's decision to present only a not-driving defense was a "reasonable tactical decision" that a competent attorney could make under these circumstances.
This appeal followed.
Why we affirm the superior court's ruling
To succeed on a claim of ineffective assistance of counsel, a defendant must prove that his or her attorney's performance fell outside the "range of competence displayed by one of ordinary training and skill in the criminal law." Because this standard does not "condon[e] the second-guessing of trial counsel in making the myriad decisions encountered in a criminal trial," the presumption of attorney competence also includes "the further presumption that trial counsel's actions were motivated by sound tactical considerations."
Risher v. State, 523 P.2d 421, 424 (Alaska 1974).
Id.
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
Whether an attorney's performance constitutes ineffective assistance of counsel is a mixed question of fact and law. We review the lower court's factual findings for clear error, but we decide de novo whether the facts constitute ineffective assistance of counsel.
State v. Simpson, 946 P.2d 890, 892 (Alaska App. 1997).
See State v. Laraby, 842 P.2d 1275, 1280 (Alaska App. 1992).
Here, we agree with the superior court's conclusion that Etuckmelra failed to rebut the presumption of attorney competence in his case. Etuckmelra's contention that his attorney's choice of defense was incompetent rests primarily on his claim that the State's evidence of driving was strong. Although Etuckmelra is correct that the State's evidence of driving was strong, the record also demonstrates that the State's evidence of intoxication was also strong. Thus, contrary to Etuckmelra's characterization of his case, his trial attorney was not faced with a choice between a weak and a strong defense. Rather, the attorney was faced with a choice between two weak defenses. Under these circumstances, the attorney could competently decide that pursuing the weak not-driving defense was preferable to the weak not-intoxicated defense because it was at least consistent with Etuckmelra's statements at the time and Etuckmelra's likely testimony if he chose to testify. The attorney also reasonably considered Etuckmelra's rejection of the plea agreement in deciding which defense to pursue because the not-driving defense was the only complete defense to all of the charges Etuckmelra faced.
On appeal, Etuckmelra argues that, even if the attorney's choice of defense was not necessarily incompetent, the attorney's decision not to challenge the State's evidence of intoxication was incompetent. Etuckmelra argues that the two defenses were not mutually exclusive, and the trial attorney could have attacked the State's evidence of intoxication at the same time that he attacked the State's evidence of not-driving. We disagree that this decision was incompetent.
The passengers might have been able to testify that Etuckmelra's driving seemed "okay" to them. But eliciting this testimony and then emphasizing its reliability and credibility would have directly undermined Etuckmelra's not-driving defense. Instead, the defense strategy at trial was to focus on a unified and coherent not-driving defense and to argue that the passengers were too drunk to know who was driving. This decision was not unreasonable or incompetent, particularly in light of the superior court's later assessment of this proffered testimony.
We therefore agree with the superior court that Etuckmelra failed to prove that his attorney was incompetent. Accordingly, we conclude that the superior court properly denied Etucklmera's application for post-conviction relief.
Jones, 759 P.2d at 569-70. --------
Conclusion
We AFFIRM the superior court's judgment.