Opinion
No. 5848
05-23-2012
JOHN SHERWOOD, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Shelley K. Chaffin, Law Office of Shelley K. Chaffin, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
Court of Appeals No. A-10349
Trial Court No. 1KE-06-173 CI
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, First Judicial District, Ketchikan, Michael A. Thompson, Judge.
Appearances: Shelley K. Chaffin, Law Office of Shelley K. Chaffin, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
John Sherwood appeals from a superior court order dismissing his application for post-conviction relief. Sherwood's application alleged that his trial attorney was ineffective for failing to file pretrial motions to dismiss the indictment and to sever the two charges that were joined for trial. Sherwood also challenged his trial attorney's failure to object to the testimony of the alleged victim, the testimony of the arresting police officer, and the final argument by the prosecutor. We conclude on some of these issues that Sherwood failed to make adequate allegations ruling out the possibility that his trial attorney made reasonable tactical decisions. For the remaining issues, he failed to adequately allege any resulting prejudice.
Background
Family friends found Sherwood's wife, L.S., at home, crying and hyperventilating. L.S. told them that Sherwood had choked her. L.S. was taken to the hospital, where she informed a nurse that Sherwood had grabbed her from behind and strangled her.
The following day, Ketchikan Police Officer Carlos Rojas and his partner conducted an interview with L.S. In that interview, L.S. said that Sherwood hit her in the face several times, choked her, and caused her to lose consciousness.
Sherwood was indicted on one count of second-degree assault. He was also charged with violating the conditions of his release on prior charges. When L.S. testified at trial, she denied that Sherwood caused her injuries. But the jury convicted Sherwood of both charges.
Sherwood filed an application for post-conviction relief asserting that his trial attorney provided ineffective assistance of counsel. On the State's motion, Superior Court Judge Michael A. Thompson dismissed the application for failure to state a prima facie claim, and Sherwood now appeals.
Discussion
An application for post-conviction relief that alleges ineffective assistance of counsel must contain specific allegations to show that the applicant can present a prima facie case. The application must allege that the attorney failed to perform at least as well as a lawyer with ordinary training and skill in the criminal law. The application must also allege that the applicant has been prejudiced by the attorney's incompetence.And an applicant must present an affidavit from his trial counsel in order to establish the reasons for the attorney's actions and to rule out the possibility that the conduct was based on a sound tactical choice.
Tall v. State, 25 P.3d 704, 708 (Alaska App. 2001); Parker v. State, 779 P.2d 1245, 1247-48 (Alaska App. 1989).
Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).
Lott v. State, 836 P.2d 371, 376 (Alaska App. 1992).
Id. at 375.
Sherwood failed to adequately allege any prejudice from his
attorney's failure to file a motion to dismiss.
Sherwood alleged in his application for post-conviction relief that his trial attorney provided ineffective assistance by not moving to dismiss the indictment. Sherwood alleged that the prosecutor had failed to give an adequate instruction to the grand jury to comply with Konrad v. State. Konrad requires that, when the State alleges that a hand or foot was used as a dangerous instrument, the grand jury be instructed that it must find that "the defendant used [the] instrument in a manner that actually created a substantial risk of death or serious physical injury."
763 P.2d 1369 (Alaska App. 1988).
Id. at 1375.
The trial court record reflects that the prosecutor did instruct the grand jury that the State was required to prove that Sherwood injured L.S. "by means of a dangerous instrument." The prosecutor explained that "virtually anything can become a dangerous instrument as long as the manner in which it is being used by the person, by the defendant, is capable of causing death or serious physical injury." He provided several examples of what could be considered a dangerous instrument. The prosecutor then stated that Sherwood had used his hands and his arm to choke L.S. until she lost consciousness, so that his hands should be considered a dangerous instrument.
Sherwood supported his post-conviction application with an affidavit of an expert attorney who stated that Sherwood's trial attorney was ineffective for failing to file a motion on this issue. In response, Sherwood's trial attorney stated in his affidavit that he did not challenge the Konrad instruction because he believed that the prosecutor's instructions "appeared to satisfy the requirements of Konrad."
In summary, Sherwood's trial attorney made a tactical decision not to file a motion to dismiss the indictment. Even though Sherwood's application alleges that this decision was unreasonable, the grand jury record suggests that the attorney acted competently. Moreover, even if Sherwood's trial attorney made a poor decision, Sherwood has not suffered any resulting prejudice. Sherwood was convicted after a trial, where the jury was properly instructed on the use of the hands as a dangerous instrument. The trial jury found that the element of dangerous instrument was established beyond a reasonable doubt, a standard of proof that is higher than the standard required to support a grand jury indictment. Sherwood's conviction thus establishes that, even if his attorney had successfully pursued a motion to dismiss, Sherwood would have been reindicted by a properly instructed grand jury. We conclude that Sherwood has suffered no prejudice from his attorney's failure to file such a motion.
See Sheldon v. State, 796 P.2d 831, 837 (Alaska App. 1990).
See generally Worden v. State, 213 P.3d 144, 146 (Alaska App. 2009); Gaona v. State, 630 P.2d 534, 537-38 (Alaska App. 1981).
Sherwood did not adequately allege that his attorney was
ineffective for failing to file a motion to sever.
As noted above, Sherwood was charged with second-degree assault and violation of conditions of release. In his application for post-conviction relief, Sherwood argued that his trial counsel was ineffective for failing to move to sever the two charges for trial. In his affidavit, Sherwood's trial attorney stated that he did not consider filing a motion to sever.
The trial court record reflects that, before the trial began, the judge asked the parties whether he should inform the jury about both charges. The judge stated that he would be required to inform the jury that the State alleged that Sherwood was on release for pending charges, but he would not reveal specific information about the pending charges. Sherwood's trial attorney stated that he would object to any evidence of the charges that formed the basis for Sherwood's conditions of release.
When Judge Thompson dismissed Sherwood's post-conviction application, he concluded that Sherwood's trial attorney made a reasonable, tactical decision not to file a motion to sever. The judge reasoned that the jury would inevitably learn that Sherwood was on bail release because Sherwood told the police that he did not take L.S. to the hospital because of the curfew imposed by his conditions of release. The judge concluded that this statement would be part of the evidence in the assault trial, and that it was, therefore, very unlikely that severance would have been granted simply to avoid the evidence that Sherwood had been released on prior charges.
We agree that Sherwood's trial attorney could have made a reasonable decision not to move for severance. Based on the trial attorney's pretrial objection, the judge ruled that the jury would not learn any of the details of Sherwood's pending charges. Sherwood has failed to make specific allegations that his trial attorney's tactic was one that no reasonable attorney would have adopted under the circumstances.
Sherwood also failed to show any prejudice. These two charges were properly joined because they were based on the same transaction. Sherwood's allegation that some of the evidence related to one charge would not be admissible at a separate trial for the other offense is not the type of prejudice that would support an order for severance. And the trial judge mitigated any prejudice from the joinder by ruling that the jury would not be informed about the details of the cases underlying the charge of violation of conditions of release.
Sherwood's attorney made a reasonable tactical decision not
to object to L.S.'s testimony that she was angry because
Sherwood had given her a venereal disease.
In his application for post-conviction relief, Sherwood alleged that his trial attorney was ineffective for failing to object to a question the prosecutor asked L.S. about Sherwood giving L.S. a venereal disease. Sherwood also alleged that his trial attorney was ineffective for failing to object to L.S.'s testimony that she had never been in contact with the legal system until she met Sherwood.
This issue first arose at trial, during the cross-examination of L.S. by Sherwood's trial attorney. L.S. admitted that she had falsely accused Sherwood of choking her during a previous incident, after she had actually attacked Sherwood. L.S. admitted that she was eventually convicted of assault for this incident. On redirect examination by the prosecutor, L.S. explained that she had been angry with Sherwood because he had given her a venereal disease.
L.S. went on to state that she had "never been charged with anything before." The prosecutor then asked, "You've never been in trouble with the legal system until you met Mr. Sherwood, have you?" L.S. repeated that she had not.
In the post-conviction relief case, Sherwood's trial attorney acknowledged in his affidavit that he did not to object to the prosecutor's question about Sherwood giving L.S. a venereal disease. The attorney stated that he did not believe the reference to L.S.'s criminal history was a basis for an objection.
When Judge Thompson considered Sherwood's post-conviction relief application, he noted that L.S.'s testimony provided support for Sherwood's defense: the evidence suggested L.S. was so angry at Sherwood that she falsely accused him of a crime. Based on this evidence, the defense could argue that if L.S. had this bias against Sherwood, but still testified that he was innocent, then she should be believed. The judge ultimately concluded that Sherwood's trial attorney had made a reasonable tactical decision that was entitled to a presumption of competence.
We agree that Sherwood's application failed to rule out the possibility that his trial attorney had a strong tactical reason for introducing the evidence surrounding L.S.'s prior conviction: The evidence demonstrated that L.S. falsely accused Sherwood of strangling her on a prior occasion and provided direct support for the defense theory that L.S. falsely accused Sherwood in the present case. A reasonably competent attorney could conclude that the State was entitled on redirect to test L.S.'s statements and to explore the circumstances behind the accusation — including the fact that L.S. had a distinct reason for fabricating her claims against Sherwood in the prior case. Sherwood's allegations thus failed to show that his attorney's tactical decision was one that no reasonably competent attorney would have adopted under the circumstances.
Sherwood also challenges his attorney's failure to object to the prosecutor's question about L.S. not being "in trouble with the legal system until [she] met Mr. Sherwood." In his affidavit, Sherwood's trial attorney stated that he did not believe the prosecutor's reference to L.S.'s lack of any criminal history was a ground for objection. We conclude that Sherwood failed to adequately allege that his trial attorney's tactical decision was one that no reasonably competent attorney would have adopted under the circumstances.
Sherwood is not entitled to raise his argument about Officer
Rojas's testimony for the first time on appeal.
At Sherwood's criminal trial, Officer Rojas testified about his interview with Sherwood on the night of the incident at issue in this case. Sherwood claimed that L.S. got in a fight with another girl the previous evening, but he said he did not know who the girl was, what time the fight occurred, or where the fight took place. Rojas explained why he did not believe Sherwood:
I would base it on his nonverbal communication with me, the — he never had any eye contact with me. When he was informed of the allegations, he was — he remained very calm. Usually, when you place somebody in restraints for something they didn't do and you accuse them of doing something they didn't do, they have a different response. They don't just stand there and look down and be very passive. Usually, that person will get very agitated, the firstSherwood's trial attorney did not object to this testimony or question Rojas about his interrogation of Sherwood.
thing they tell you is, I didn't do that, what are you talking about, why are you putting me in handcuffs, I didn't do nothing. Mr. Sherwood didn't do any of those things that — that are indicators that, you know, he's not guilty of — of the incident.
Sherwood alleged in his application for post-conviction relief that his trial attorney was ineffective for failing to object to Rojas's testimony. Sherwood alleged that Rojas was not qualified to present expert testimony on Sherwood's demeanor and that Rojas provided improper lay opinion testimony. The affidavit from Sherwood's trial attorney stated that his trial strategy was to maintain jury good will by not objecting to evidence that would not make a difference to the basic defense theory that Sherwood did not commit this assault.
Sherwood argues a different theory on appeal; he argues that Sherwood's trial attorney was ineffective for failing to object on the ground that Rojas should not have been allowed to discuss the credibility of another witness.
We conclude that Sherwood has waived this claim by his failure to allege it in his application for post-conviction relief. In a direct appeal of a criminal conviction, we allow a defendant to raise a plain error claim that was not preserved during the litigation of the criminal case. But "when a defendant appeals an adverse decision in post-conviction relief litigation, it would appear that the defendant must be confined to the claims that were presented to the trial court (and ruled on) in that post-conviction relief proceeding."
See Lindeman v. State, 244 P.3d 1151, 1158 (Alaska App. 2011).
See Alaska R. Crim. P. 47(b); Horton v. State, 758 P.2d 628, 631 (Alaska App.1988).
Peters v. State, Mem. Op. & J. No. 5248, 2007 WL 2216610, at *2 (Alaska App. Aug. 1, 2007).
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Even assuming Sherwood is entitled to pursue this claim, he has failed to show plain error. Sherwood's trial attorney stated in his affidavit that he limited his objections when the prosecutor posed questions that did not make a difference to his basic defense because he wanted to engender good will with the jury. Sherwood's trial attorney could have legitimately decided to avoid calling attention to Rojas's testimony. Thus the application fails to rule out the possibility that the trial attorney's actions were undertaken for a reasonable tactical reason.
Sherwood did not present a prima facie case of ineffective
assistance of counsel by showing his attorney did not object
to the prosecutor's closing argument.
At the criminal trial, a portion of the prosecutor's rebuttal argument replied to the defense argument about the seriousness of L.S.'s injuries:
You're told that her injuries aren't severe enough. ... Well, folks, here's the deal. When someone is being strangled, they panic until they can't breathe anymore. And then when they can't breathe anymore, they stop. And sometimes, when they stop breathing, they die. You are being presented with a case that is as close to a homicide case as we can get without you having to go through autopsy photos in the deliberation room.Sherwood's trial attorney did not object to this argument.
Sherwood alleged in his post-conviction application that the prosecutor's argument was improper and that Sherwood's trial attorney provided ineffective assistance of counsel by failing to object. In Sherwood's trial attorney's affidavit, he explained why he decided not to object: "[The prosecutor's] wont is overstatements and excessive theatrics, which juries often find offensive. When juries find [the prosecutor's] conduct offensive, they are more likely to be particularly critical of his arguments and discount them." Sherwood's trial attorney indicated that his "[s]trategy at closing was to allow [the prosecutor] to make his exaggerations in the anticipation that the jury would discount them."
Again, Sherwood's trial attorney had a reasonable tactical reason for not objecting to the prosecutor's closing argument. We conclude that Sherwood has failed to adequately allege a claim for ineffective assistance of counsel.
Conclusion
We AFFIRM the superior court's order dismissing the application for post-conviction relief.