Opinion
Court of Appeals No. A-11038 No. 6094
09-17-2014
RICKEY C. GOTTARDI, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Rickey C. Gottardi, pro se, Juneau, and Whitney G. Glover, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Michael S. McLaughlin, Assistant Attorney General, Office of Special Prosecutions and 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. 1JU-08-399 CI t/w 1JU-04-1329 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge. Appearances: Rickey C. Gottardi, pro se, Juneau, and Whitney G. Glover, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Michael S. McLaughlin, Assistant Attorney General, Office of Special Prosecutions and 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 Rickey C. Gottardi of first-degree arson, first-degree criminal mischief, and oil pollution. This Court affirmed Gottardi's convictions on direct appeal. Gottardi then applied for post-conviction relief, asserting that his trial counsel was ineffective for (1) failing to properly cross-examine one of the State's witnesses regarding his inconsistent statements, and (2) failing to challenge the search warrant used to obtain incriminating evidence from Gottardi's boat. Following an evidentiary hearing, the superior court denied these claims on their merits. Gottardi now appeals that denial. For the reasons explained below, we affirm the superior court's judgment.
Background facts and procedural history
Gottardi's convictions stem from a fire that started at the marina at the Auke Bay Harbor in Juneau early in the morning on September 21, 2004. The fire started when someone cut fuel lines leading to a dock — spilling about 1,600 gallons of fuel into the water — and then set the fuel on fire.
Gottardi v. State, 2007 WL 2143012, at *1 (Alaska App. Jul. 25, 2007) (unpublished).
Id.
Fire Marshal Richard Etheridge was called to the fire around 4:20 a.m. In the area of the marina where the fire had started, Etheridge observed that both diesel and gasoline hoses had been cut through at sharp angles. Nearby, he also found a green, handheld disposable propane canister with a torch attachment.
The same day, a man named Dan Rasmussen contacted Etheridge and said that he was hiding someone on his boat who had witnessed the fire but was afraid to come forward. Rasmussen told Etheridge that the person hiding on his boat was named Christopher Baker. (As explained below, Christopher Baker's real name was James Maher.) Rasmussen told Etheridge that he lived on a boat that was docked next to the boat shared by Maher/Baker and Rickey Gottardi. He stated that the three had been drinking and getting "rowdy" the night before. Rasmussen also said he saw Gottardi return to his boat around 4 a.m., just before Rasmussen saw the fire.
Etheridge met with Maher/Baker, who told Etheridge that he was an eyewitness to the arson and that he wanted to work out a deal on a shoplifting charge. Etheridge told Maher that he could not make any promises or deals; Maher agreed to share his information anyway. He told Etheridge that he and Gottardi were roommates on a boat in the marina and that the two of them had been drinking the night before. Around 2:00 a.m., Gottardi left the boat with a small, green, handheld torch device and a knife, after telling Maher that he was going to burn down the harbor. (Maher's description of the green, handheld torch device matched the green, handheld disposable propane canister with a torch attachment that Etheridge had found near the fire.) Gottardi then came back to the boat and said the torch would not light. He asked Maher to get him another torch. Maher refused, and Gottardi retrieved another torch device from the boat. Gottardi later returned with a torch device and a knife and told Maher to look at the fire.
Etheridge went to the magistrate to obtain an arrest warrant for Gottardi and a search warrant for his boat based on the information from Rasmussen and Maher (who Etheridge believed was named "Christopher Baker"). The magistrate found that both Rasmussen and "Christopher Baker" were "citizen informants," and further found that there was probable cause to issue the warrants.
Later that evening, Etheridge and Officer Paul Hatch of the Juneau Police Department went to the marina to execute the search warrant and arrest Gottardi. During the search of the boat, they found several green, handheld propane canisters that looked similar to that attached to the device found near the fire.
Officer Hatch interviewed Gottardi, who made several inconsistent statements about his movements the night of the fire. Hatch observed that Gottardi's hands were blackened. The officer who booked Gottardi into jail noticed that Gottardi (or his clothes) smelled like diesel fuel.
The next day, Hatch and Etheridge went back to the marina to re-interview Gottardi's roommate, who they believed was named Christopher Baker. It was then that they discovered that Baker's real name was James Maher.
Gottardi was charged with first-degree arson, third-degree criminal mischief, and oil pollution. Gottardi's first trial resulted in a hung jury; at his second trial he was convicted on all counts. Gottardi was represented by the same attorney at both trials.
AS 11.46.400.
AS 11.46.482(a)(1).
AS 46.03.740.
Gottardi, 2007 WL 2143012, at *1.
This Court affirmed Gottardi's convictions and sentence on direct appeal.
Id.
Gottardi then filed an application for post-conviction relief, asserting that his trial attorney had been ineffective. Superior Court Judge Patricia A. Collins held an evidentiary hearing on two claims: (1) whether Gottardi's trial attorney was ineffective for failing to cross-examine Maher on all of his inconsistent statements; and (2) whether Gottardi's trial attorney was ineffective for failing to challenge the search warrant application. Following the evidentiary hearing, the court denied these claims on their merits, finding that Gottardi had failed to meet his burden of proving either claim.
This appeal followed.
Why we affirm the superior court's denial of Gottardi's claim that his trial lawyer was ineffective because he failed to cross-examine Maher on certain inconsistencies in his prior statements
To prove ineffective assistance of counsel on post-conviction relief under Alaska law, a defendant must prove by clear and convincing evidence that (1) his attorney's performance fell below the objective standard of minimal competence; and (2) there is a reasonable possibility that the attorney's incompetent performance contributed to the outcome of the trial.
We note that Gottardi also separately argues that his attorney was ineffective under federal law. There is no need for us to address this claim separately, however, because the Alaska constitutional standard for ineffective assistance of counsel is less stringent than the federal constitutional standard. Therefore, a claim that fails under the Alaska standard will necessarily fail under the federal standard. See State v. Jones, 759 P.2d 558, 572 (Alaska App. 1988).
See Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).
Gottardi asserts that his trial attorney was ineffective for failing to cross-examine Maher regarding certain inconsistencies in his prior statements. The trial court ruled below that Gottardi had failed to meet his burden of showing that his attorney's cross-examination was below the standard of competence. We agree with this ruling. Indeed, the record reflects that the attorney's cross-examination of Maher at both trials was comprehensive and highly competent.
As the trial court found, Gottardi's trial attorney spent significant time at both trials cross-examining Maher on a variety of issues, including inconsistencies in his prior statements, the fact that Maher had originally given a false name to the investigators, and the fact that he had tried to negotiate a plea deal for a shoplifting charge. The trial attorney also directly impeached Maher's credibility with his prior crimes of dishonesty and with the fact that he was drinking heavily that night and was on a methadone program.
We note that, after the first trial, the trial attorney asked members of the hung jury what they thought of his defense. They told him that they thought his cross-examination of Maher was very effective and they were not persuaded by Maher's testimony. Instead, what the jurors found most persuasive was "the testimony of various law enforcement officials and the results of their investigation." Based on this feedback, the trial attorney decided to conduct his cross-examination of Maher at the second trial in substantially the same way.
Gottardi argues that since Maher was asked to identify a canister/torch in the second trial, his trial attorney should have cross-examined Maher regarding various inconsistencies in his prior statements about exactly when Maher saw Gottardi with the green canister/torch and how many green canisters/torches he saw Gottardi carrying. But, as the superior court pointed out in its order, cross-examination on this issue was unlikely to be particularly exculpatory or helpful to Gottardi:
[b]alanced against the limited value of this cross-examination are its dangers. Even assuming some inconsistency, it is minor in comparison to the damaging and consistent testimony that was given by Maher, which certainly would have been repeated in cross-examination and re-direct examination on this subject.Given the potential dangers of Gottardi's proposed cross-examination, the trial court concluded that Gottardi had failed to show by clear and convincing evidence "that no reasonably competent attorney would have made a similar decision under the circumstances." We agree with this conclusion and find that it is well supported by the record.
Maher, although a self-proclaimed alcoholic who was drunk on the night in question, was consistent throughout all interviews and trial that: (1) Gottardi was drunk and stated that he was going to go set a fire; (2) Gottardi then left the
boat about 3:00 a.m.; (3) Gottardi shortly thereafter returned to the boat, saying that he could not get the fire going; (4) Gottardi then took a green torch and left the boat again; (5) Gottardi later returned to the boat and told Maher to look at the fire; and (6) Gottardi had a green ... torch and knife with him when he returned to the boat the second time.
Why we affirm the superior court's denial of Gottardi's claim that his trial attorney was ineffective for failing to file a motion to suppress the evidence collected during the execution of the arrest and search warrants
Cf. State v. Simpson, 946 P.2d 890, 893 (Alaska App. 1997) (trial attorney's failure to cross-examine State's witness on a "veritable gold mine" of impeachment information fell below objective standard of competent attorney).
To succeed on an ineffective assistance of counsel claim based on an attorney's failure to file a motion to suppress, the applicant must prove that "the proposed suppression motion would have been granted and, additionally, that there is at least a reasonable possibility that the outcome of the trial court proceedings would have been different had the evidence been suppressed."
State v. Steffensen, 902 P.2d 340, 342 (Alaska App. 1995).
Gottardi claims the evidence collected during the execution of the search and arrest warrants would have been suppressed; he asserts the warrants were not based on probable cause because the information provided by Rasmussen and Maher was not sufficiently corroborated.
A warrant based on an informant's tip must be supported by information establishing (1) the informant's basis of knowledge and (2) the informant's credibility or veracity. To meet the credibility prong of this test, the facts provided by an informant from the "criminal milieu" must be independently corroborated. When Fire Marshal Etheridge applied for the warrants, the magistrate found that both Rasmussen and Maher were citizen informants.
State v. Jones, 706 P.2d 317, 320 (Alaska 1985); see also Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969).
See Erickson v. State, 507 P.2d 508, 517 (Alaska 1973); Ivanoff v. State, 9 P.3d 294, 298 (Alaska App. 2000).
In his post-conviction relief application, Gottardi argued that this was error and that both Rasmussen and Maher were informants from the criminal milieu. He argued that the information they provided was not sufficiently corroborated to support a finding of probable cause. He pointed out that Rasmussen was on probation and that Maher initially gave a false name and then tried to work out a deal with Etheridge for a pending criminal charge in exchange for his information.
The trial court disagreed with Gottardi that Rasmussen should have been viewed as a police informant simply because of his probationer status. The court noted that Rasmussen never requested or sought any type of deal in exchange for his information. The trial court agreed with Gottardi, however, that Maher should have been viewed as a police informant from the criminal milieu because Maher did try to obtain a deal (although he was unsuccessful). But the court concluded that this error did not prejudice Gottardi because there was sufficient independent corroboration of Maher's statements to establish his credibility, even if Maher had been viewed as a police informant.
We agree with the superior court's analysis of this issue. We note that Maher provided various facts about the crime — such as Gottardi's use of a knife and a green, handheld propane canister/torch device — that were corroborated by the fire marshal's independent investigation and not known to the general public. We therefore agree with the superior court's conclusion that even if Gottardi's attorney had filed a motion to suppress, it would not have been successful.
We also agree with the superior court's rejection of Gottardi's argument that his trial attorney should have moved to suppress the search warrant application because the fire marshal never returned to inform the magistrate that Gottardi's roommate, "Christopher Baker," was really James Maher. The record is clear that the fire marshal discovered this fact only after the warrants were executed. And there is no indication that either the fire marshal or the officers involved in the investigation were aware — or should have been aware — of the possibility that "Baker" was really Maher prior to that time.
We do not reach any of the claims raised by Gottardi in his capacity as co-counsel because none of these claims is properly before this Court
Gottardi requested co-counsel status on appeal, which was granted by this Court. In his request for co-counsel status, Gottardi claimed that he had been granted co-counsel status in the proceedings below, and that he therefore had an interest in appealing the claims he had raised below but his current appellate attorney was unwilling to argue in this appeal.
But contrary to Gottardi's claim, the trial court never granted him full co-counsel status. The court did allow Gottardi to file one supplemental pro se brief along with his counsel's amended application for post-conviction relief, identifying the claims that he thought his post-conviction attorney should raise. However, the court did not require the State to respond to Gottardi's claims, nor did it consider these claims when ruling on his application. Instead, the court allowed Gottardi's trial counsel the option of pursuing the claims that Gottardi had argued in his pro se filing. Gottardi's counsel declined to pursue any of Gottardi's claims and submitted a confidential and ex parte filing to the court explaining why he would not pursue them.
In his co-counsel appellate brief filed with this Court, Gottardi argues some of those claims and adds some new claims as well. For the most part, the claims relate to various allegations that the prosecution intentionally lost, withheld, or destroyed critical evidence. Gottardi also requests this Court conduct "an independent review" of all the discovery in the case.
Because the superior court did not consider any of these claims on their merits in the trial court proceedings below, these claims are not properly before this Court. If Gottardi still wishes to pursue these claims, he must argue in a new application for post-conviction relief, pursuant to Grinols v. State, that his appointed counsel was ineffective for failing to pursue them in his first post-conviction relief application.
10 P.3d 600, 618 (Alaska App. 2000).
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Conclusion
The judgment of the superior court is AFFIRMED.