Opinion
Court of Appeals No. A-12262 No. 6660
07-25-2018
BRANDON RUSSELL-DURANT, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Maureen E. Dey, Gazewood & Weiner, P.C., Fairbanks, for the Appellant. Kenneth M. Rosenstein, 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. Trial Court No. 4BE-12-511 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Charles W. Ray Jr., Judge. Appearances: Maureen E. Dey, Gazewood & Weiner, P.C., Fairbanks, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Brandon Russell-Durant was convicted at trial of second-degree sexual assault after he had sexual intercourse with a sixteen-year-old girl who was intoxicated to the point of unconsciousness.
After this Court denied his direct appeal, Russell-Durant filed an application for post-conviction relief. The State moved to dismiss Russell-Durant's application for failure to plead a prima facie case, and the judge did so. For the reasons explained in this opinion, we affirm the superior court's ruling.
Russell-Durant v. State, 2012 WL 1232612, at *1 (Alaska App. Apr. 11, 2012) (unpublished).
Background facts
Russell-Durant provided whiskey that he had obtained from a bootlegger to M.W., a teenage girl living in Bethel. Around 3:00 in the morning, M.W. lost consciousness from drinking too much. Russell-Durant then had sexual intercourse with her.
Nine hours later, Russell-Durant deposited the still unconscious M.W. on the ramp outside the Bethel hospital's emergency room and drove away. A subsequent blood test at the hospital revealed that her blood alcohol level was .377 percent. M.W. had consumed no additional alcohol after her loss of consciousness.
Following a jury trial, Russell-Durant was convicted of second-degree sexual assault for having sexual intercourse with M.W. while she was incapacitated. We affirmed his conviction on direct appeal.
Id.
Russell-Durant subsequently filed an application for post-conviction relief, alleging that his trial attorney had provided him with ineffective assistance of counsel in two ways. First, he alleged that his trial attorney should have lodged a foundational objection to the admission of the hospital laboratory's blood test result. Second, Russell-Durant alleged that his trial attorney should have moved for an evidentiary hearing under Daubert and Coon to challenge the scientific validity of an extrapolation by the State's expert witness determining M.W.'s blood alcohol level at the time of the crime from her blood-alcohol level at the time of her hospital admission.
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); State v. Coon, 974 P.2d 386 (Alaska 1999).
Superior Court Judge Charles W. Ray Jr. granted the State's motion to dismiss Russell-Durant's application for failure to state a prima facie case. This appeal ensued.
Why we conclude that Russell-Durant failed to state a prima facie case
An applicant for post-conviction relief bears the initial burden of pleading a prima facie case of ineffective assistance of counsel. When the State asks a court to dismiss an application based on the pleadings alone (that is, without pretrial discovery, and without a hearing or a trial), the trial court must examine all of the well-pleaded assertions of fact in the applicant's petition and decide whether these assertions of fact (if ultimately proved) would entitle the applicant to post-conviction relief.
State v. Jones, 759 P.2d 558, 570 (Alaska App. 1988).
Steffensen v. State, 837 P.2d 1123, 1125-26 (Alaska App. 1992); see Jones, 759 P.2d at 565-66 (explaining the three stages of post-conviction relief litigation).
As explained in Risher v. State, the test for ineffective assistance of counsel in criminal cases is whether the attorney's conduct fell below the range of competence required of an attorney who has "ordinary training and skill in the criminal law." When, as in the present case, an applicant claims that his attorney made incompetent decisions, the applicant must show that the attorney's choice of strategy or tactics was so bad that no competent criminal law practitioner would have handled these issues the same way.
Risher v. State, 523 P.2d 421, 424 (Alaska 1974).
LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007).
The law "presumes that an attorney has acted competently, and that the attorney's decisions were prompted by sound tactical considerations. To prevail in a post-conviction relief action based on [an] ineffective assistance of counsel claim, the defendant must rebut this presumption."
Newby v. State, 967 P.2d 1008, 1016 (Alaska App. 1998) (citing Jones, 759 P.2d at 569).
Moreover, as this Court explained in Steffensen v. State, when an ineffective assistance of counsel claim is based on an attorney's failure to file a suppression motion, the applicant must show that the motion, if filed, would have been granted and that there is a reasonable possibility that the case would have had a different outcome if the evidence had been suppressed. It follows from the Steffensen decision that an attorney is not incompetent for failing to file a meritless motion or to make a meritless objection.
Steffensen, 902 P.2d at 342.
Russell-Durant alleged that his trial attorney should have lodged a foundational objection to the admission of M.W.'s blood alcohol test result. Specifically, Russell-Durant argued that his attorney should have asked the judge to require the State to lay a foundation that the hospital collected M.W.'s blood sample without contaminating it during the collection process.
But Russell-Durant was required to offer evidence that his trial counsel had a basis for objecting to this evidence, and also that the objection would have succeeded. Crucially, Russell-Durant alleged no facts suggesting that the hospital's staff mishandled M.W.'s blood or otherwise incompetently allowed M.W.'s blood to become contaminated. Because Russell-Durant failed to show how a foundational objection would have succeeded in keeping M.W.'s blood test result from the jury, his claim was properly dismissed.
Russell-Durant's second ground for relief fares no better. He alleged that, upon learning that the State would present expert testimony about the rate at which alcohol is metabolized, thus yielding an estimate of M.W.'s blood alcohol level when Russell-Durant had sex with her (a calculation termed "retrograde extrapolation"), his trial attorney should have objected to the testimony and moved for an evidentiary hearing on the scientific validity of the expert's methodology.
But Russell-Durant offered no evidence to cast doubt on the scientific validity of retrograde extrapolation, much less any evidence to demonstrate that all minimally competent attorneys would have moved for a Daubert/Coon hearing under the circumstances or that there was a reason to believe that a Daubert/Coon objection would have succeeded.
Moreover, as we explained in our opinion on direct appeal, M.W.'s blood test result at the hospital was so high that the exact quantum of her blood alcohol level at the time of the sexual assault was essentially irrelevant. Russell-Durant failed to offer a reason to believe that there was any reasonable possibility that the exclusion of the retrograde extrapolation testimony would have altered the jury's verdict.
Russell-Durant, 2012 WL 1232612, at *3 ("In driving while intoxicated cases, the defendant's exact blood alcohol level at a particular time could be critical evidence. But in Russell-Durant's case, M.W.'s precise alcohol level at 3:00 a.m. was relatively unimportant.").
See Jones, 759 P.2d at 567-68. --------
Accordingly, Russell-Durant failed to plead a prima facie case of ineffective assistance of counsel.
Conclusion
We AFFIRM the judgment of the superior court.