Opinion
Court of Appeals No. A-11324 No. 6194
06-17-2015
FRANKLIN MOSES TEGOSEAK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Brook Berens, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-10-6392 CI t/w 3AN-05-5489 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Brook Berens, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
After a jury trial, Franklin Moses Tegoseak was convicted of felony driving while under the influence and driving with a suspended license. Tegoseak appealed, and this Court affirmed his convictions on direct appeal.
Tegoseak v. State, 221 P.3d 345 (Alaska App. 2009).
Tegoseak then filed an application for post-conviction relief, asserting that he was deprived of the effective assistance of counsel because his trial attorney failed to cross-examine the eyewitnesses in Tegoseak's case about the accuracy of their description of Tegoseak's pants. The eyewitnesses described Tegoseak as wearing "blue jeans" although he was actually wearing black pants or black jeans.
The superior court dismissed Tegoseak's application as meritless, finding that the attorney's failure to cross-examine the eyewitnesses on this minor discrepancy did not fall below the minimum standard of competency and that there was no reasonable possibility that testimony about this minor discrepancy would have altered the outcome of Tegoseak's case.
Tegoseak now appeals. For the reasons explained here, we affirm the superior court's dismissal of Tegoseak's case.
Relevant factual background and prior proceedings
The critical issue at Tegoseak's trial was whether he was driving. The State presented two eyewitnesses who testified that they observed a Ford Bronco being driven erratically and that they called the police to report this possible drunk driver. The eyewitnesses then followed the Ford Bronco to a nearby parking lot, where they saw the driver (who they testified was wearing a black shirt and blue jeans) switch places with the front seat passenger (who was wearing a white shirt and blue jeans). The car then drove off again.
Shortly after this, the Ford Bronco was stopped by the police. At the traffic stop, the driver (Edgar Henry) was wearing a white shirt and Tegoseak was wearing a black shirt. Anchorage Police Officer Gerard Asselin testified that Henry told him that he had just switched places with Tegoseak because he was afraid that Tegoseak's bad driving was going to kill them. Officer Asselin also testified that Tegoseak affirmatively nodded when asked if he had been driving earlier.
Tegoseak's defense at trial was that he had not been driving the car and that he had not switched places with Henry. Tegoseak's attorney argued that the eyewitnesses were mistaken about the men switching places and that Henry's statement to the police was a lie. Henry testified for the defense at trial and recanted his prior statement. He claimed that he was driving the entire time and that he was initially wearing a black sweatshirt with a white shirt underneath and that he took the black sweatshirt off sometime before the traffic stop.
At trial, Tegoseak wanted his attorney to cross-examine the eyewitnesses about the fact that he was wearing black pants or black jeans, not blue jeans as they had testified. Tegoseak's trial attorney did not cross-examine any of the eyewitnesses about this discrepancy in their description of Tegoseak. Nor did she otherwise point out this discrepancy to the jury.
After Tegoseak's convictions were affirmed on direct appeal, Tegoseak filed an application for post-conviction relief in the superior court, asserting that his trial attorney had rendered ineffective assistance of counsel by failing to elicit evidence of this discrepancy at trial.
In her responding affidavit, Tegoseak's trial attorney stated that she had made a tactical decision not to cross-examine the eyewitnesses on this discrepancy because she did not think that the difference between blue jeans and black jeans/black pants was particularly relevant or particularly impeaching. She noted that the two eyewitnesses had mainly observed the driver and front seat passenger from the waist up, and the main difference that was described between the two men had been the color of their shirts, not their pants. The attorney stated that she decided not to question the eyewitnesses about the discrepancy because "[r]egardless of whether [the vehicle's occupants'] pants were blue or black, [the witnesses] clearly saw the black and white shirts." She added, "I don't think the jurors would have been more persuaded of Mr. Tegoseak's innocence based on this small inconsistency."
Based on this affidavit, Superior Court Judge Michael L. Wolverton dismissed Tegoseak's application for post-conviction relief as meritless. The court ruled that the attorney's failure to cross-examine the eyewitnesses on this minor discrepancy did not fall below the minimum standard of competency, and also found that, even if this decision was incompetent, Tegoseak had failed to show any prejudice.
This appeal followed.
Why we affirm the superior court's ruling
To prevail on a post-conviction claim of ineffective assistance of counsel, a defendant must show that (1) his attorney's performance fell below the standard of competency; and (2) there is a reasonable possibility that, but for that incompetency, the outcome of the trial would have been different.
Billy v. State, 5 P.3d 888, 889 (Alaska App. 2000) (citing Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974)).
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On appeal, Tegoseak argues that his attorney's actions were incompetent. He points out that the credibility and reliability of the eyewitness testimony was critical to the State's case, and he asserts that a competent attorney would have made sure that the jury was aware that the eyewitnesses' descriptions of Tegoseak's pants were not accurate. He argues that his attorney's claim that she made a "tactical decision" not to cross-examine on this issue was false; instead, he argues, it appeared that she had made a mistake and failed to recognize the relevancy of this evidence as proper impeachment.
We conclude that we do not need to decide whether Tegoseak's attorney's decision to forgo cross-examination on this discrepancy was a decision that no competent defense attorney would have made. We reach this conclusion because we agree with the superior court that there is no reasonable possibility that the outcome of Tegoseak's case would have been different even if this cross-examination had occurred.
Both eyewitnesses testified that they saw the driver (who was wearing a black shirt) switch places with the front seat passenger (who was wearing a white shirt) shortly before the traffic stop. This description of the two men and the color of their shirts was directly corroborated by Officer Asselin, who identified the man in the black shirt as Tegoseak and the man in the white shirt (now sitting in the driver's seat) as Henry. Moreover, although Henry later recanted his statement to the police that he had just switched places with Tegoseak, he did not dispute that the obvious difference between them was the color of their shirts; instead he claimed that he had also been wearing a black sweatshirt which he had taken off sometime prior to the traffic stop.
Given this record, we agree with the superior court that even if the jury had been informed that the eyewitnesses had mistakenly described Tegoseak's black pants or black jeans as "blue jeans," the outcome of Tegoseak's trial would not have been any different.
Conclusion
The judgment of the superior court is AFFIRMED.