Opinion
Court of Appeals No. A-12170 No. 6883
07-08-2020
WILLIAM D. GROSSMAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Galen Paine, Law Office of Julie Willoughby, Juneau, under contract with the Office of Public Advocacy, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-05-06329 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Galen Paine, Law Office of Julie Willoughby, Juneau, under contract with the Office of Public Advocacy, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg, Judge, and Mannheimer, Senior Judge. Judge WOLLENBERG.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Following a jury trial, William "Donnie" Grossman was convicted of second-degree murder and fourth-degree assault. We affirmed Grossman's convictions on direct appeal. Grossman now appeals the denial of his post-conviction relief application.
For the reasons we explain in this opinion, we affirm the superior court's judgment.
Background facts
We previously set out the underlying facts of Grossman's case in our decision in Grossman's direct appeal. We briefly restate these facts here.
Grossman v. State, 120 P.3d 1085 (Alaska App. 2005).
In August 2001, Grossman and Erick David were drinking alcohol in an empty Anchorage lot with three other people — Larry Brown, Kevin Vanderway, and Kathy Tugatuk. At some point during the evening, both Brown and Vanderway were assaulted. Vanderway suffered only minor injuries — a "shiner" and "a few scratches" — and did not require medical treatment. Brown, however, was badly beaten.
When the police arrived, they found Brown near a fence on one side of the lot. He was lying partially on a bicycle, covered in blood, and unable to communicate. Brown was transported to the hospital, and he later died from his injuries.
Following the assaults, Grossman left the scene, but the other people remained. When the police questioned Vanderway about what had happened, he said that "somebody else popped us both." Upon further questioning, Vanderway said that the assailant had "taken off," and he identified the assailant as "Donnie."
Tugatuk was too intoxicated to coherently respond to police questioning. Later testing confirmed that all four individuals who had remained at the scene were highly intoxicated. Vanderway's breath alcohol content was .284 percent, and Tugatuk's was .325 percent.
Three residents in apartments overlooking the empty lot witnessed the assaults. Each of these witnesses reported seeing two men violently beating a third man in the middle of the field. The witnesses provided similar descriptions of the two assailants: they described one man as having a tattoo on his arm and wearing a vest (matching Grossman's description) and the second assailant as a taller, Native man (matching David's description). All of the witnesses described the man in the vest as the primary aggressor.
The police contacted Grossman's long-time friend, James Morgan, who reported that he had seen Grossman on the morning after the assault. A police officer later testified that, according to Morgan, Grossman told Morgan that he had beaten an "old man." Morgan told Grossman that he needed to "get out of Dodge." (At trial, Morgan denied stating that Grossman referred to the person he beat up as the "old man.") Morgan gave the police a denim vest that Grossman left at his house. This vest matched witnesses' descriptions of the vest seen on one of the two assailants.
When the police finally contacted Grossman, about two days after the attack, he admitted to being present at the lot with "the old man, Kevin, Kathy, and Erick." He acknowledged that a "beating" had occurred, but he did not provide any details.
Trial proceedings
The State charged Grossman and David, as principals or accomplices, with second-degree murder for the death of Brown. The State also charged Grossman with the assault on Vanderway.
Grossman initially proceeded to a jury trial represented by an attorney from the Public Defender Agency. After several days of trial, however, Grossman's attorney discovered that the Public Defender Agency had a conflict of interest in representing Grossman. The trial judge declared a mistrial and appointed the Office of Public Advocacy (OPA) to represent Grossman. Under contract with OPA, a private attorney represented Grossman at his renewed trial several months later.
As we noted earlier, three eyewitnesses testified to seeing an assault in the middle of the field, and the witnesses' descriptions linked Grossman and David to this assault. The key question at trial was whether the victim of this assault was Brown (the man who died) or Vanderway (the man who suffered only minor injuries). Brown and Vanderway looked alike: they both had red or strawberry-blond hair and beards. (Indeed, at trial, Vanderway had difficulty distinguishing photographs of himself from photographs of Brown.) The State argued that the victim of the assault in the field was Brown, while Grossman argued that the victim was Vanderway.
Both Vanderway and Tugatuk testified that they had no memory of what happened because they had been heavily drinking. As a result, neither of them directly implicated Grossman in the assault on Brown.
Vanderway testified that he did not remember telling the police that "Donnie" had "popped" us, and he could not say for sure who had "popped" Brown. He testified that he had stolen a bottle of liquor from Grossman a few weeks earlier, and he suggested that Grossman may have hit him in retaliation, and that Brown may have intervened in order to stick up for him (Vanderway). But Vanderway did not directly accuse Grossman of attacking Brown, and he repeatedly said that the last thing he could remember, before being taken to a sleep-off center, was sitting in the field and drinking with the others.
Tugatuk also could not recall what had happened, and she did not accuse Grossman of attacking Brown.
Given the uncertainties in Vanderway's and Tugatuk's testimony, the State relied heavily on the testimony of the three eyewitnesses from the surrounding apartments.
One of these witnesses, Nana Lewis, testified that she was certain that the victim who was assaulted in the middle of the field was the same person she later saw taken away in the ambulance, and she assumed that he had moved to the fence at some point after the assault. She also expressed certainty that Grossman, whom she described as having a tattoo on his arm and wearing a blue denim vest, had assaulted this victim (Brown) by pounding on the victim's head and body, punching and kicking him. She testified that she had seen Grossman one week earlier, wearing the same clothing, arguing with a woman in the alley. She testified that there was also a second assailant in the field — a taller, Native man.
Lewis's boyfriend, Ryan Sjostrom, viewed the assault from the same vantage point as Lewis. Sjostrom testified that he saw two men badly beating a victim in the middle of the field, and he stated that the more violent of these attackers was a man wearing a vest, with a tattoo on his left arm. Sjostrom described this tattooed assailant as punching, kicking, and stomping the victim.
By the time of trial, Nana Lewis and her boyfriend had married, and she had changed her name to Nana Sjostrom.
Both Lewis and Sjostrom acknowledged that they could not see the area by the fence where the police ultimately found Brown. Lewis also acknowledged that she walked away from the window several times, in part because the assault was so upsetting to her.
The third eyewitness, Cassia Northbird, lived in a nearby apartment in a different building. She, too, testified that she saw two men assaulting a third man in the field. Northbird's description of the shorter assailant matched Sjostrom's and Lewis's description of Grossman. Northbird testified that this shorter assailant, who was the primary aggressor, was on top of the victim, punching and kicking him, and that the second assailant, a Native man, was punching and kicking the victim.
In contrast to Lewis, however, Northbird testified that the man who was taken away in the ambulance was not the same man she saw being beaten in the open field. Northbird also testified that she overheard the woman in the field (Tugatuk) calling the assault victim "Kevin." Northbird then identified several photographs of Vanderway as "Kevin."
However, another portion of Northbird's testimony was inconsistent regarding the identity of the victim. When Northbird was shown a picture of Vanderway from the day of the assault, and she was asked whether the jacket that Vanderway was wearing in the photo was the same jacket she saw on the person being attacked in the field, Northbird said no. Northbird also testified that, although she had a clear line of sight to the area where Brown was found, she did not see anything occur there.
The prosecutor's theory of the case was that Grossman and David had beaten Brown in the open field and then, before the police arrived, Brown had crawled or otherwise moved to the place near the fence where he was found. The prosecutor argued that only Brown had injuries that were consistent with the severity of the assault that the three eyewitnesses had observed in the open field, and she emphasized that these witnesses described a person matching Grossman as the primary assailant.
In contrast, Grossman's attorney argued that the witnesses had actually seen Grossman assaulting Vanderway, rather than Brown, in the open field, and that David alone had beaten Brown to death by the fence, out of the view of these witnesses. To support this argument, the defense attorney presented the testimony of a DNA expert who asserted that the blood on Grossman's vest tested positive for Vanderway's blood, and that Brown was excluded as a major contributor of this blood.
A small portion of the blood sample on Grossman's vest was too degraded to say definitively whether Brown was a contributor to the sample.
The defense attorney also argued that the observations by Lewis and Sjostrom were unreliable. The attorney emphasized that there was no forensic evidence linking Grossman to Brown, and she noted the absence of any blood in the middle of the field or any trail of blood from the field to the fence. The defense attorney suggested that the spattered and cast-off blood found on the fence, as well as the scratches on David's wrists, demonstrated that David was holding onto the fence while he assaulted Brown. She pointed out that Brown's blood was found on David's shoes and socks.
The jury ultimately convicted both Grossman and David of second-degree murder for Brown's death. Grossman was also convicted of fourth-degree assault for causing Vanderway's injuries.
AS 11.41.110(a)(1) and/or (a)(2).
AS 11.41.230(a)(1).
On direct appeal, we affirmed Grossman's convictions and sentence.
Overview of post-conviction relief proceedings
Grossman subsequently pursued post-conviction relief. In his post-conviction relief application (as amended by counsel), Grossman raised two overarching arguments: first, that his trial attorney provided ineffective assistance of counsel in several ways, and second, that three newly discovered witnesses would testify that both Kevin Vanderway and Kathy Tugatuk had later denied that Grossman had any involvement in Brown's death. The superior court held several evidentiary hearings on these claims.
See AS 12.72.010(4) & (9).
In a written order, Superior Court Judge Kevin M. Saxby addressed and rejected each of Grossman's claims. He therefore denied Grossman's application for post-conviction relief. As to Grossman's claims of ineffective assistance of counsel, Judge Saxby found that Grossman's trial attorney had tactical reasons for her decisions or had otherwise performed competently, and that in any event, any deficiency in the attorney's representation had not affected the outcome of Grossman's trial.
Grossman now appeals, challenging the court's denial of his ineffective assistance of counsel and new evidence claims. Grossman also raises a threshold due process challenge to the superior court's order.
A preliminary claim: Grossman's due process argument
On appeal, Grossman argues that Judge Saxby did not independently evaluate Grossman's claims, but rather improperly deferred to preliminary findings and conclusions made by the judge who was previously assigned to the case, denying him due process. To properly address this issue, we must provide additional background on the procedural history of Grossman's post-conviction relief proceedings.
Initially, Grossman's application was assigned to pro tempore Superior Court Judge Peter G. Ashman. Judge Ashman presided over all of the evidentiary hearings on Grossman's application. Following these hearings, Judge Ashman notified the parties that he would be leaving the state and that his judicial appointment would soon end. Prior to his departure, Judge Ashman issued a 112-page decision detailing his findings and conclusions based on the evidence (although he declined to make a final ruling because Grossman's written reply to the State's final argument was still pending).
Grossman objected to Judge Ashman's findings and conclusions, and he asked Judge Saxby to strike these findings because they were issued before Grossman had an opportunity to file his reply. Judge Saxby denied this motion, but he indicated that he would treat Judge Ashman's findings as merely proposed findings.
The parties subsequently agreed that additional live testimony would likely be unnecessary, and that Judge Saxby should simply review the testimony and documents presented during the post-conviction relief evidentiary hearings. Several months later, Judge Saxby issued an order notifying the parties that he had read all the documents previously submitted and had listened to the audio of "every hearing and trial day" for both the underlying criminal case and the post-conviction relief proceedings. The judge agreed that additional live testimony was probably unnecessary, but he invited the parties to object if they disagreed with the court's assessment or thought the court should review additional materials. Neither party objected.
The following month, Judge Saxby issued a 110-page order denying Grossman's application. In that order, Judge Saxby adopted and used much of the language from Judge Ashman's proposed findings. On appeal, Grossman relies on this fact to argue that Judge Saxby improperly deferred to Judge Ashman's assessment of the case rather than conducting his own independent evaluation of the claims.
But the record before us indicates that Judge Saxby did independently evaluate Grossman's claims. In his written order, Judge Saxby noted that both parties had agreed that he should re-listen to the testimony and review the materials filed, and he reiterated that he had "listened to all of the original trial recordings, including pre-trial hearings, [and] all of the PCR hearings, and ha[d] reviewed all documents and exhibits in the court's files[.]" The judge then stated that his decision was based on his consideration of "all of this evidence" as well as "Grossman's detailed objections to Judge Ashman's findings."
Grossman's argument — that Judge Saxby simply deferred to Judge Ashman's proposed findings — is therefore no more than speculation. We note that judges regularly adopt findings proposed by the parties, and that doing so does not mean that the judge failed to independently evaluate the evidence.
See Harris v. Ahtna, Inc., 193 P.3d 300, 306 (Alaska 2008) ("A trial court is . . . entitled to adopt findings and conclusions prepared by counsel, so long as they reflect the court's independent view of the weight of the evidence." (quoting Indus. Indem. Co. v. Wick Constr. Co., 680 P.2d 1100, 1108 (Alaska 1984)).
We therefore reject this claim.
Grossman's claims of ineffective assistance of counsel
Under Risher v. State, a criminal defendant who alleges ineffective assistance of counsel must prove both that their attorney's conduct fell below the minimal level of competency of a criminal law practitioner — i.e., that the attorney took an action or made an omission that no reasonably competent attorney would have taken or made — and that there is a reasonable possibility that this deficient performance contributed to the defendant's conviction. "The law presumes that an attorney has acted competently, and that the attorney's decisions were prompted by sound tactical considerations." Accordingly, to prevail in a post-conviction relief action, a post-conviction applicant bears the burden of rebutting this presumption.
Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).
Newby v. State, 967 P.2d 1008, 1016 (Alaska App. 1998) (citing State v. Jones, 759 P.2d 558, 569 (Alaska App. 1984)).
Newby, 967 P.2d at 1016; Jones, 759 P.2d at 569.
Grossman's primary claims against his trial attorney can be grouped into five main categories:
(1) failing to hire and present a crime scene reconstruction expert;We address each of these claims in turn. We then address several additional issues raised by Grossman in connection with his ineffective assistance of counsel claims.
(2) failing to test blood found on the fence where Brown was found;
(3) failing to contact and present a memory expert, Dr. Geoffrey Loftus, to challenge the State's eyewitness testimony;
(4) failing to adequately impeach Nana Lewis; and
(5) failing to use, during cross-examination of Lewis, photos taken by the Public Defender Agency's investigator instead of photos taken by the police.
1. Failure to present the testimony of a crime scene reconstruction expert
In the superior court, Grossman argued that his trial attorney was ineffective for failing to hire a crime scene reconstruction expert to interpret the crime scene, explain the physical evidence, and challenge the forensic support for the State's theory of the case. To support his claim, Grossman presented the testimony of Thomas Bevel, an expert in bloodstain pattern analysis and crime scene reconstruction. Bevel testified about his analysis of the scene: He described blood staining on the fence (where Brown was found) which, according to Bevel, suggested that Brown was assaulted there. And he described the horizontal blood staining on Brown's face which, according to Bevel, indicated that Brown was never again vertical after his face began to bleed significantly. Bevel also testified about the lack of physical evidence to support the State's theory that Brown was assaulted in the middle of the field.
The superior court found that, even without this kind of expert testimony, Grossman's trial attorney was effectively able to use the trial evidence to argue most of the points that Bevel described. The court noted that the "primary and potentially strongest attack on the State's theory of the case was the absence of blood in the open area of the field and the absence of a blood trail to the fence." The court found that the absence of blood in these areas was established at trial, and that it was "not clear how a crime scene investigator could have made the absence of this evidence any more obvious." We have reviewed the record, and we agree.
"Representation is constitutionally deficient only when it falls 'outside the wide range of professionally competent assistance.'" Thus, to prevail on his claim of ineffective assistance of counsel, Grossman "was required to do more than arrive at the post-conviction relief hearing with a better idea than the one his trial counsel originally thought of." Rather, Grossman was required to prove, "not that his trial counsel could have done things better, but that no competent attorney would have done things as badly as his trial counsel did."
Jones, 759 P.2d at 568 (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)).
Tucker v. State, 892 P.2d 832, 835 (Alaska App. 1995).
Id.
Here, Grossman failed to establish that his attorney's decision to rely on the evidence presented by the State's witnesses, and on her own DNA expert, in lieu of presenting a crime scene reconstruction expert, fell outside the broad range of professionally competent representation. While an expert may have added nuance to the physical evidence (or lack thereof), Grossman's trial attorney was able to develop and argue much of the most critical forensic evidence that Grossman now contends required a crime scene reconstruction expert.
See Harrington v. Richter, 562 U.S. 86, 106-11 (2011) (rejecting an ineffective assistance of counsel claim, where the defense attorney failed to call a blood expert, because there were risks in calling a defense expert and the defense attorney effectively cross-examined the State's expert).
For instance, the State's crime scene investigator acknowledged on cross-examination that there was no blood found on the trampled portion of the grass in the middle of the field (the spot where the State contended the assault of Brown occurred). And although defense counsel did not expressly ask the State's investigator about the absence of a blood trail from the middle of the field to the fence, this point was never contested.
Indeed, in closing argument, Grossman's attorney emphasized the absence of any blood in the middle of the field, as well as the absence of any blood trail from the middle of the field to the fence. The attorney argued that these facts showed that Brown could not have been the person assaulted in the middle of the field.
To further support the defense theory that David alone beat Brown by the fence, Grossman's attorney relied on several pieces of physical evidence developed through the State's witnesses: (1) the discovery of Brown's blood on David's shoes and socks — and not on Grossman's clothing — and (2) the combination of blood on the top of the fence, a partial palm print in the blood, and scratches on David's inner wrist, suggesting that David held onto the fence while kicking Brown.
The defense attorney also presented her own DNA expert to establish that Brown was excluded as the major contributor to the blood stains on Grossman's vest — and that the only identifiable DNA on Grossman's vest (other than his own) was Vanderway's.
Given the evidence that the defense attorney was able to elicit, we agree with the superior court that Grossman failed to demonstrate that any minimally competent attorney would necessarily have presented additional testimony from a crime scene reconstruction expert.
We note, as the superior court did, that certain aspects of Bevel's testimony might have actually undermined Grossman's defense theory. At the evidentiary hearing, Bevel conceded that one possible explanation for the presence of Brown's cast-off blood on David's shoes and socks was that David was standing in front of Brown's face as Brown was lying on his side, while a second assailant was kicking Brown in the back of the head. Bevel also acknowledged that the horizontal staining on Brown's face was consistent with the State's theory of the case — that Brown crawled from the site of the assault in the middle of the field before he began to bleed significantly, and that he did not bleed significantly until he got to the fence, where he was found in a pool of blood.
As we explained earlier, there was no blood evidence directly linking Grossman to Brown's beating. Accordingly, to the extent that Bevel's testimony supported a two-assailant theory, this could potentially have been harmful to Grossman. A competent defense attorney could therefore reasonably decline to present this expert.
2. Failure to test the blood collected from the fence
Grossman's initial attorney from the Public Defender Agency sent several items, including blood stains collected from Grossman's vest, to a laboratory for DNA testing. (As we explained earlier, this attorney represented Grossman at trial until the discovery of a conflict of interest at the Public Defender Agency necessitated the Agency's withdrawal and the declaration of a mistrial.) But neither that initial attorney, nor the attorney who later represented Grossman at his second trial, included the blood from the fence among the items to be tested for DNA. The State similarly did not test the blood on the fence.
In his post-conviction relief application, Grossman argued that the attorney who represented him at his second trial was ineffective for failing to test the blood collected from the fence. In support of this claim, Grossman again offered the testimony of forensics expert Bevel. According to Bevel, there were two different types of blood stains on the fence: (1) blood located low on the fence that resembled either an expectorated or a spattered stain (of the type one would expect to see expelled from a person being assaulted), and (2) cast-off blood located higher up on the fence.
DNA testing conducted during the post-conviction relief proceedings established that the blood on the upper part of the fence — the cast-off blood — belonged to Grossman's co-defendant, David. Bevel testified that this cast-off blood stain indicated that David was swinging his arm diagonally, throwing blood off in the process. He further indicated in his report that two scratches on David's inner right wrist were the likely source of this cast-off blood, and that the swinging motion was consistent with an assault.
At the post-conviction relief evidentiary hearing, Grossman's trial attorney confirmed that she had not subjected the blood on the fence to DNA testing. When confronted with the fact that later testing showed that the cast-off blood at the top of the fence was David's, the attorney acknowledged that this was "a good fact" for the defense, and she added that she had "suspected" that this would be the result. But despite this assertion, Grossman's post-conviction attorney never directly asked Grossman's trial attorney why she did not test the blood.
On cross-examination, Grossman's trial attorney gave some insight into her strategy. First, the attorney explained that the thrust of her argument at trial was that the State did not test the blood because the prosecutor knew that the results would not support the State's case — and she wanted the jury to hold this against the State. Second, the test results might not have been favorable for Grossman. The defense attorney acknowledged that the cast-off blood might have been Brown's — and if so, this fact would not have been helpful to Grossman, given its implication that Brown remained mobile and able to move from the middle of the field to the fence. Alternatively, the cast-off blood could have been Grossman's, which would also have been harmful to the defense.
The superior court found that Grossman's trial attorney made a tactical decision not to test the blood found on the fence. The court acknowledged that, in retrospect, this tactical decision was "probably wrong." But it is axiomatic that an attorney is not incompetent simply because a decision, evaluated later with the benefit of hindsight, turns out to have been mistaken.
See Risher v. State, 523 P.2d 421, 424 (Alaska 1974); see also Simeon v. State, 90 P.3d 181, 184 (Alaska App. 2004) (recognizing that an attorney's tactical decision is "virtually immune from subsequent challenge even if, in hindsight, better approaches could have been taken" (quoting Alexander v. State, 838 P.2d 269, 273 (Alaska App. 1992))).
On appeal, Grossman renews his claim that his attorney was ineffective for failing to subject the blood on the fence to DNA testing. (Grossman never presented a freestanding claim of newly discovered evidence based on the results of the DNA testing.)
As we discussed earlier, when evaluating a trial attorney's performance, a court must apply a "presumption of competence" — i.e., a presumption that "trial counsel's actions were motivated by sound tactical considerations." When an attorney has made a tactical decision, a post-conviction relief applicant must demonstrate that the tactic was unreasonable — that is, "a tactic no competent attorney would use."
Jones, 759 P.2d at 569; see also Newby v. State, 967 P.2d 1008, 1016 (Alaska App. 1998).
Simeon, 90 P.3d at 185.
Here, Grossman failed to rebut the presumption of competence. The superior court found that his attorney made a tactical decision not to test the blood; this is a factual finding to which we defer. Grossman does not discuss, or even acknowledge, the trial court's ruling on this point. Rather, Grossman simply argues that the existence of David's blood on the fence was strong and important evidence that would have countered the State's eyewitness testimony. But this argument is based on hindsight — i.e., based on the favorable results revealed by the post-trial testing. And the evidence showed that there were several reasons why a competent attorney might refrain from testing the cast-off blood at the top of the fence.
See State v. Laraby, 842 P.2d 1275, 1279-80 (Alaska App. 1992).
See Jones v. State, 740 S.E.2d 147, 153 n.7 (Ga. 2013) (noting that, while an attorney's subjective thinking about a given decision may be relevant to assessing the reasonableness of the attorney's conduct, the determination of counsel's competency is ultimately an objective inquiry).
First, the blood results might not have been favorable to Grossman. Even if the attorney refrained from disclosing unfavorable test results, there was a risk that if the prosecutor learned that the testing had taken place, this might have caused the prosecutor to re-think her own decision not to test the blood.
Second, a reasonable attorney could conclude that the risks of testing the blood outweighed the potential benefits. In fact, the superior court found that, while the blood test result would have strengthened the State's case against David, it would not necessarily have undermined the State's case against Grossman since the assault could have begun in the middle of the field and continued at the fence. Given this view of the facts, which is supported by the record, we cannot say that all minimally competent attorneys would necessarily conclude that the benefits of testing the blood outweighed the risks.
See Osborne v. State, 110 P.3d 986, 991-92 (Alaska App. 2005), superseded by statute on other grounds, AS 12.73, as recognized in Lambert v. State, 435 P.3d 1011, 1018-19 (Alaska App. 2018).
Indeed, we note that Grossman's prior attorney from the Public Defender Agency, an experienced criminal practitioner, also did not test the blood found on the fence. This attorney represented Grossman through three days of trial before discovering a conflict of interest that necessitated a mistrial and the appointment of conflict counsel. Grossman did not call his first attorney to testify at the evidentiary hearing as to why he refrained from testing the blood on the fence. The absence of any evidence on this point undermines Grossman's assertion that no competent attorney would have failed to test the blood.
For these reasons, we affirm the superior court's rejection of Grossman's ineffectiveness claim regarding testing the blood on the fence.
3. Failure to present the testimony of memory expert Dr. Geoffrey Loftus
Grossman's initial attorney from the Public Defender Agency retained Dr. Geoffrey Loftus as an expert witness to testify at trial about the formation of human memories and the potential distorting influences on memory. However, after OPA contract counsel took over Grossman's case, the new attorney chose not to call Dr. Loftus to testify at Grossman's trial.
In one of her two affidavits, the OPA contract attorney stated that she was aware that the Public Defender Agency had retained an eyewitness identification expert, but she made "a strategic decision not to overwhelm the jury with experts" and to instead present only the testimony of a DNA expert (i.e., the expert who testified regarding the blood on Grossman's vest).
In Grossman's post-conviction relief application, he acknowledged that his trial attorney had made a strategic decision not to present Dr. Loftus as a witness, and he did not expressly challenge this decision. Rather, Grossman contended that his attorney's decision not to call Dr. Loftus as a witness meant that she was required to challenge the eyewitness testimony through other means (e.g., by impeaching Lewis's testimony), and that she failed to adequately do so.
Grossman took this same approach at the evidentiary hearing. Upon questioning by Grossman's post-conviction attorney, Grossman's trial attorney confirmed that she had "made the decision not to call Dr. Loftus," and she acknowledged the statement in her affidavit that she did not want to "overwhelm" the jury with experts. But Grossman's post-conviction attorney did not press the trial attorney about her strategic reasoning for not calling Dr. Loftus; rather, the attorney simply asked, "So this meant . . . that you needed to explain or counteract Ms. Lewis's and Mr. Sjostrom's testimony in another way?" The attorney then examined Grossman's trial attorney about her allegedly deficient performance as to these other courses of action.
Grossman's post-conviction attorney never asked any further questions about the trial attorney's thought process regarding Dr. Loftus, nor did she question the trial attorney as to why exactly she feared that presenting two defense experts rather than one would be detrimental to Grossman's case.
Following the hearing, Grossman argued, for the first time, that his trial attorney was ineffective for failing to present Dr. Loftus to challenge the testimony of the three eyewitnesses from the adjacent apartment buildings. The superior court rejected this claim, finding that the attorney had made "a calculated choice" not to call Dr. Loftus to testify.
On appeal, Grossman contends that his trial attorney's decision was incompetent because Dr. Loftus's testimony was critical to impeaching the testimony of the three eyewitnesses — in particular, Lewis's assertion that she was certain that Brown was the victim who was attacked by the two men in the middle of the field.
But it was Grossman's burden to show that his attorney's tactical decision was unreasonable. Here, Grossman did not question his trial attorney about her strategic reasoning. As a result, there is little explanation in the record for her decision.
As we said in State v. Jones:
when a tactical choice has in fact been made, even if it was made by an attorney who was not fully informed as to available options, the choice will be subject to challenge only if the tactic itself is shown to be unreasonable — that is, a tactic that no reasonably competent attorney would have adopted under the circumstances.Here, the superior court implicitly found that the attorney's decision was a reasonable tactical choice. The court found that while Dr. Loftus's general theoretical analysis of the potential flaws in eyewitness testimony would have been helpful to the defense, the court also found that Dr. Loftus's specific factual analysis in the context of this case was vulnerable to attack, and that this attack would likely have been helpful to the State.
Jones, 759 P.2d at 569-70.
We have reviewed Dr. Loftus's testimony at the evidentiary hearing, and it supports the court's assessment. On cross-examination, Dr. Loftus conceded that many of the eyewitnesses' observations were objectively accurate, despite the dim lighting conditions and the distance between the witnesses and the assault itself — two factors that Dr. Loftus identified as impacting the accuracy of eyewitness identification generally. In particular, the three eyewitnesses accurately identified a tattoo on Grossman's upper arm, the fact that Grossman was wearing a vest, the ethnicities of Grossman and David, and their relative heights and builds.
More importantly, Dr. Loftus's testimony had the potential to undermine the testimony of the one eyewitness, Cassia Northbird, whose observations actually helped Grossman's case. Northbird testified that the victim of the assault was named "Kevin," and that the person she saw being placed in the ambulance was not the person she saw being beaten in the field.
At trial, Grossman's attorney argued that Northbird was the "best witness" — that her vantage point was the most reliable and that she had "the most accurate and complete set of descriptions." But on cross-examination at the evidentiary hearing, Dr. Loftus acknowledged that Northbird's recollection of the name "Kevin" could have been influenced by the acquisition of post-event information when she was shown photographs of Vanderway.
Ultimately, even without Dr. Loftus's testimony, Grossman's trial attorney was able to elicit concessions from both Lewis and Sjostrom as to the limits of their observations. During cross-examination of Lewis, the defense attorney established that Lewis became emotional while she was watching the assault, and that she stepped away from the window several times. Lewis and Sjostrom both admitted that they were unable to see the area where the police ultimately found Brown. In closing, the defense attorney argued that Lewis and Sjostrom simply assumed that Brown was the victim that they saw being beaten in the field when they learned of the extent of his injuries.
The superior court concluded that Grossman failed to establish that his trial attorney was incompetent for not presenting Dr. Loftus's testimony. For the reasons explained here, we affirm the court's rejection of this claim.
4. Failure to adequately impeach Nana Lewis
In the superior court, Grossman argued that his trial attorney failed to adequately investigate and cross-examine Nana Lewis. In particular, Grossman argued that his attorney was ineffective for (1) failing to impeach Lewis with a prior conviction for theft, (2) failing to obtain and listen to a recording of the sentencing hearing related to that theft conviction, at which (according to Grossman) issues related to Lewis's mental health were mentioned, and (3) failing to interview Lewis prior to trial and sufficiently investigate a statement that Lewis made to police about seeing Grossman a week before the assaults, wearing the same clothes and arguing with a woman she believed was Grossman's pregnant girlfriend.
These claims are not preserved. In its written order, the superior court noted that Grossman had presented little evidence about these claims. We have reviewed the record, and we agree. Although these claims are addressed in one of the trial attorneys's affidavits, Grossman's post-conviction attorney did not question the trial attorney about these matters at the evidentiary hearing. Grossman's post-conviction attorney also did not present any evidence as to what actually occurred at the sentencing hearing associated with Lewis's theft conviction, or the issues that were purportedly raised at that hearing. Nor did Grossman develop the evidentiary record as to how the circumstances of Lewis's observation of Grossman a week before the incident and her related statement to the police could have been used as an effective tool of impeachment.
On appeal, Grossman makes no more than conclusory assertions about these impeachment claims, simply declaring that his trial attorney could not have had a "reasonable tactic" for failing to pursue these avenues of investigation, and that "[a]ny attack on [Lewis's] credibility would have assisted the defense." Grossman's conclusory claims are insufficient to meet his burden of proving ineffective assistance of counsel.
See LaBrake v. State, 152 P.3d 474 (Alaska App. 2007).
5. Failure to use certain photographs when cross-examining Lewis
Grossman argues that his trial attorney provided ineffective assistance when, during her cross-examination of Lewis, she relied on photographs of the scene taken by the police rather than photographs taken by the Public Defender Agency's investigator. The photographs taken by the police showed the entire lot, while the defense investigator's photographs were taken from Lewis's apartment and thus reflected the limited view from that apartment — i.e., a view that did not include the area by the fence where Brown was found.
Grossman's trial attorney testified that her decision was tactical. Even though the police photographs showed the entire scene, they were taken at the time of the assaults, in August, when tall grass and brush obstructed the view of the ground. By contrast, the Public Defender Agency's photographs were taken later, during a season with no tall grass and brush, and thus showed a clear view of the ground. The defense attorney wanted to use the photographs that emphasized the obstructions to the witnesses' ability to observe the assault.
In addition, even though the defense attorney did not introduce the Public Defender Agency's photographs demonstrating Lewis's obstructed view, she was able to establish this fact through Lewis's own testimony. On cross-examination, Lewis acknowledged that, from her apartment, she could not see the fence area depicted in the State's photographs.
The superior court found that the defense attorney's decision to rely on the State's photographs was a "conscious and thoughtful one." Given this tactical choice, the court rejected Grossman's claim of ineffectiveness based on the attorney's failure to use the investigator's photographs. We agree with the superior court that Grossman failed to establish that his attorney's tactical decision was unreasonable, or that this decision fell below the minimum standard of attorney competence.
Grossman's additional challenges to the superior court's ruling and analysis
Grossman challenges his attorney's defense theory — specifically, her decision to argue that the State had failed to meet its burden of proof rather than developing additional exculpatory evidence through further expert testimony, physical evidence, and additional cross-examination. Although this generalized claim was not explicitly presented to the superior court, the court appears to have rejected it, finding that, in light of defense counsel's total decision-making and performance at trial, she "demonstrated a very high standard of knowledge, talent and ability."
We acknowledge, as Grossman's trial attorney did, that, in hindsight, she might have done some things differently. But the central inquiry in an ineffectiveness claim is not whether the attorney should have done things differently, or could have done things better; the question is whether the attorney's actions fell below a minimal level of competency.
Tucker v. State, 892 P.2d 832, 835 (Alaska App. 1995) (stating that a post-conviction relief applicant is "obligated to prove, not that his trial counsel could have done things better, but that no competent attorney would have done things as badly as his trial counsel did").
The superior court found that Grossman failed to show that his attorney's performance as a whole was so deficient as to fall below the standard of competence required of an attorney of ordinary training and skill in the criminal law. Given the trial court's findings, we agree. We also note that, while the defense attorney argued that the State had failed to prove its case, she also relied on the evidence presented by the State's own witnesses, as well as her own DNA expert, to support the defense theory that David alone had assaulted Brown. And ultimately, Grossman's claim of cumulative ineffectiveness rests on several of the assertions of error that we have already rejected.
See, e.g., Harrington v. Richter, 562 U.S. 86, 109 (2011) ("To support a defense argument that the prosecution has not proved its case[,] it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates.").
Grossman also presents several general challenges to the superior court's analysis. First, Grossman contends that the superior court did not consider the possibility that, given a different defense strategy, Grossman might have been convicted of a lesser offense such as manslaughter. It is true that the court did not explicitly consider that possibility. But Grossman never argued this point in the superior court. In fact, Grossman's entire application (and trial) rested implicitly on the assertion that he had no part in assaulting Brown. This argument is therefore waived.
Second, Grossman contends that the court should have given more weight to the testimony of his criminal defense expert witness, attorney Marcelle McDannel. McDannel testified as to how she would have approached Grossman's case, and she opined that Grossman's trial attorney provided ineffective representation. The superior court acknowledged McDannel's opinion as an expert. But the court rejected the notion that the approach McDannel described represented the minimum standard of competence, or even the approach that most defense lawyers would take. Indeed, the court viewed McDannel's testimony as merely reflecting her personal opinions about what should have been done. Because these findings are not clearly erroneous, we have no basis for disturbing the weight the court ascribed to McDannel's testimony.
See Lindeman v. State, 244 P.3d 1151, 1154 (Alaska App. 2011) (explaining that, in reviewing a trial court's factual findings regarding an ineffective assistance of counsel claim, this Court overturns those factual findings only if they are clearly erroneous).
Finally, Grossman argues that the superior court applied an incorrect standard for assessing prejudice in an ineffective assistance of counsel claim. He notes that, at times, the court assessed whether, despite the attorney's alleged errors, the State nevertheless presented sufficient evidence to support the verdict.
In Risher v. State, the Alaska Supreme Court explained that, to establish prejudice from an attorney's incompetent representation, a post-conviction relief applicant must show that the attorney's "lack of competency contributed to the conviction." The question is not whether the remaining evidence was sufficient to support the jury's verdict, but rather whether the applicant has "create[d] a reasonable doubt that the [attorney's] incompetence contributed to the outcome."
Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
Id.
We agree with Grossman that, although the court correctly quoted the prejudice standard from Risher v. State, the court's various applications of that test suggested that it was incorrectly applying a "sufficiency of evidence" standard. However, because we have rejected Grossman's underlying claims of attorney incompetence, the superior court's assessment of prejudice is moot.
We note that Grossman's brief contains several other claims of ineffective assistance of counsel that were either not raised below or not ruled on by the superior court, and are only cursorily argued on appeal. To the extent Grossman intends to raise these arguments as independent claims of error, we conclude that they are not preserved for appeal, and we therefore do not address them further.
See Burton v. State, 180 P.3d 964, 975 (Alaska App. 2008) (finding unpreserved, and therefore forfeited, a substantive contention raised for the first time on appeal in a post-conviction relief case); Bryant v. State, 115 P.3d 1249, 1258 (Alaska App. 2005) ("Normally, an appellant may only appeal issues on which he has obtained an adverse ruling from the trial court." (citing Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002))); see also Peterson v. Mutual Life Ins. Co. of N.Y., 803 P.2d 406, 410 (Alaska 1990) ("Where a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal.").
Grossman's claim of newly discovered evidence
Grossman next claims that the testimony of three new witnesses constitutes newly discovered evidence that entitles him to a new trial. Under AS 12.72.010(4) and Alaska Criminal Rule 35.1(a)(4), a person may seek post-conviction relief if "there exists evidence of material facts, not previously presented and heard" by the court, "that requires vacation of the conviction . . . in the interest of justice."
At the evidentiary hearing, Grossman presented the testimony of the three new witnesses. Two of these witnesses — Joseph Salzer and Willard Biederman — testified that they had conversations with Vanderway (the surviving victim) several years after Grossman's trial. According to Salzer, Vanderway told him that Grossman was not involved in assaulting Brown — that David alone kicked and punched Brown by the fence. According to Biederman, Vanderway said that Grossman had received "a life sentence," and it "wasn't true."
The third witness, Tony Nicolai, testified to a conversation he had with Tugatuk several years after Grossman's trial. Nicolai testified that Tugatuk told him that Grossman "didn't do it, and that the other guy did it."
Salzer, Biederman, and Nicolai were each housed, at separate times, at Spring Creek Correctional Center with Grossman, and Grossman encouraged them to come forward. Grossman argued that if the testimony of these three witnesses was presented at a new trial, the outcome of this new trial would be different.
The State called Vanderway as a witness at the evidentiary hearing. On direct examination, Vanderway acknowledged knowing Biederman, but he denied ever talking with Biederman about Brown's murder. Vanderway testified that he did not know Salzer.
Vanderway also reaffirmed his trial testimony — that he had absolutely no recollection of the assaults because he was so drunk.
On cross-examination, Grossman's post-conviction attorney did not ask Vanderway about the specific statements attributed to him by Salzer and Biederman, nor did Grossman's attorney seek to establish that Vanderway even knew Salzer. And Grossman's attorney never called Tugatuk as a witness; accordingly, Tugatuk was never confronted with Nicolai's statements.
At the State's request, Tugatuk appeared at the evidentiary hearing, but she fell asleep in the hallway. Neither party called her to testify at that hearing or at any later hearing.
The superior court denied Grossman's new evidence claim. The court gave two main reasons for its ruling. First, the court ruled that the out-of-court statements attributed to Vanderway and Tugatuk would not necessarily be admissible at a retrial. The court found that, even if Vanderway and Tugatuk made these statements, the statements appeared to be Vanderway's and Tugatuk's "expressions of opinion rather than direct factual observations."
Second, the court found that, even if the testimony of Salzer, Biederman, and Nicolai was admitted at a new trial, the verdict would be the same because the statements attributed to Vanderway and Tugatuk did not establish a reasonable doubt as to Grossman's guilt. The court noted that neither Vanderway nor Tugatuk ever testified that Grossman had attacked Brown; instead, both of these witnesses testified that, as a result of their intoxication, they had no recollection of any attack. As a result, the court found that Grossman's conviction rested primarily on the testimony of the three "sober and unbiased" eyewitnesses who "consistently identified the tattooed, shorter man (Grossman) as the primary attacker." The court also noted that only Brown suffered injuries consistent with the eyewitnesses' report of a vicious assault.
In addition, the court expressed doubts about the credibility of Salzer's and Nicolai's testimony. As to Salzer, the court had difficulty distinguishing between what Vanderway told Salzer and what Grossman told Salzer. The court also found that Salzer's memories were "often confused or unclear," and that his testimony in general did not bear any indicia of trustworthiness.
As to Nicolai, the court similarly could not discern which portion of Nicolai's statement was his own recollection, and which portion was attributable to Grossman's suggestion and influence. The court found that Grossman "appears to have tried to influence Mr. Nicolai in a variety of ways and in an extremely persistent fashion," including attempting to bribe Nicolai. The court found that Nicolai's statement was untrustworthy and lacking in detail.
The court found Biederman's testimony credible, but it also found that Vanderway's statements to him were vague and did not rise to the level of a recantation. In short, the court found that it was unclear whether Biederman was alleging that Vanderway actually recalled that Grossman was not involved, or whether Vanderway was simply suggesting that, in retrospect, he did not believe that Grossman was involved.
(We note that Judge Ashman, who directly viewed the witnesses' testimony, made similar credibility findings.)
In contrast, the court expressly found that Vanderway was being truthful when he disclaimed any memory of the events and found that there was "no reason to believe [Vanderway] is withholding evidence." The court noted that Vanderway's testimony at the evidentiary hearing — that he was intoxicated on the night in question and could not recall the assaults — was consistent with his trial testimony. The court further noted that Grossman's post-conviction attorney made no "real attempt to impeach [Vanderway] with details of the alleged inconsistent statements." The superior court therefore found that the new witness statements — which the court found were either not credible or vague — would not have changed the outcome of the case.
Grossman now challenges this ruling on appeal.
In James v. State, the Alaska Supreme Court held that when a defendant requests a new trial based upon an alleged recantation, the trial court must assess not only the credibility of the recantation testimony but also the likely impact of that new evidence in light of the totality of the evidence to be presented at a new trial. Here, the court individually examined the witnesses' testimony as well as the likely impact of that testimony in the event of a retrial.
James v. State, 84 P.3d 404, 406-07 (Alaska 2004); see also Cathey v. State, 60 P.3d 192, 199 (Alaska App. 2002) (when evaluating a motion for a new trial based on newly discovered evidence,"the judge's task is to assess 'the credibility of the newly discovered evidence [as well as the] probable impact of that evidence'" (alteration in original) (quoting Gonzales v. State, 691 P.2d 285, 287 (Alaska App. 1984))); Mooney v. State, 167 P.3d 81, 91 (Alaska App. 2007) (discussing James, 84 P.3d at 407).
In his opening brief, Grossman does little more than recount the testimony of the three witnesses and then argue conclusorily, in a single paragraph, that this testimony entitles him to a new trial under Salinas v. State. He does not address the superior court's findings regarding this testimony, nor does he explain why the court's findings might be erroneous.
Salinas v. State, 373 P.2d 512, 514 (Alaska 1962) (articulating the standard for obtaining a new trial based on newly discovered evidence); see also Lewis v. State, 901 P.2d 448, 450 (Alaska App. 1995) (applying the Salinas standard to post-conviction newly discovered evidence claims).
In particular, as we noted earlier, the court found that the statements attributed to Vanderway and Tugatuk appeared to be "expressions of opinion" — formed after Grossman's trial — rather than "direct factual observations." Statements of Vanderway's or Tugatuk's opinion about what happened would not necessarily be inconsistent with their assertion that they had no personal recollection of what happened, and in any event, their statements of opinion would be subject to exclusion under Alaska Evidence Rule 701. But in his opening brief, Grossman neither cites to, nor challenges, the court's finding.
We have previously said that the failure to address a trial court's ruling, or argue why it is wrong in any more than a cursory way, constitutes inadequate briefing. We are inclined to conclude that Grossman's claim is inadequately briefed.
Vickers v. State, 175 P.3d 1280, 1287 (Alaska App. 2008); see Petersen, 803 P.2d at 410.
Nevertheless, we have examined the record, and we conclude that the superior court did not abuse its discretion in denying Grossman's claim of newly discovered evidence in light of its findings. We generally defer to a trial court's credibility determinations, as it is the function of the trial court, not this Court, to weigh witness credibility. Considering the superior court's findings regarding the credibility of Salzer's and Nicolai's testimony, and the lack of probative value of Biederman's testimony, and the court's overall assessment of whether this newly discovered evidence would result in a different verdict, we cannot say that the superior court abused its discretion in denying Grossman's request for post-conviction relief based on the purported newly discovered evidence.
See Hensel v. State, 604 P.2d 222, 235 & n.55 (Alaska 1979) (applying the abuse of discretion standard when reviewing a post-conviction request for a new trial based on newly discovered evidence); see also Gonzales v. State, 691 P.2d 285, 286-87 (Alaska App. 1984) (applying the abuse of discretion standard when reviewing a motion for a new trial based on newly discovered evidence).
Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999); see also Alexie v. State, 402 P.3d 416, 418 (Alaska App. 2017) (recognizing that, in a post-conviction relief proceeding, "[w]hen material facts are contested, the trial court must hear the evidence and determine which assertions of fact are more credible").
Conclusion
We AFFIRM the judgment of the superior court.