Opinion
Court of Appeals No. A-9671.
August 15, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge, Trial Court Nos. 4FA-04-1151 CI, 4FA-97-3002 CR.
David K. Allen, Assistant Public Advocate, Fairbanks, and Joshua Fink, Public Advocate, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Mark E. Copeland was convicted, following a jury trial, of nine counts of sexual abuse of a minor in the second degree and one count of contributing to the delinquency of a minor. We affirmed Copeland's conviction. Copeland then filed an application for post-conviction relief in which he argued he received ineffective assistance of counsel from his appellate attorney. Superior Court Judge Niesje J. Steinkruger dismissed the application. Copeland appeals that decision. We affirm.
AS 11.41.436(a)(1) and AS 11.51.130(a).
Copeland v. State, 70 P.3d 1118, 1120 (Alaska App. 2003).
In his initial appeal, Copeland argued that Superior Court Judge pro tem Sigurd Murphy erred in refusing to grant his motion for a mistrial. At Copeland's trial, the prosecutor called Eddie Gray as a witness. Gray had rented an apartment in Fairbanks on behalf of Copeland. The State asserted that Copeland had used this apartment to pursue his relationship with J.S., a girl under the age of 16. After answering a few questions, Gray invoked his Fifth Amendment rights and refused to answer further questions.
Id. at 1126.
Id. at 1120, 1125.
On appeal, Copeland argued that Judge Murphy erred in refusing to grant a mistrial after Gray refused to answer questions by invoking his Fifth Amendment rights. In rejecting Copeland's claim, this Court stated that "Copeland never actually asked for a mistrial." Consequently, we analyzed the issue under a "plain error" standard.
Id. at 1125-26.
Id. at 1126.
Id.
In his post-conviction relief application, Copeland filed an affidavit from the attorney who represented him at trial and on appeal. The attorney acknowledges that, on appeal, the State's brief asserted that Copeland had not moved for a mistrial but the attorney alleges that this was a misrepresentation of the trial record. Copeland's attorney stated that he made a mistake in not pointing out this error in his reply brief.
In her decision dismissing Copeland's application for post-conviction relief, Judge Steinkruger assumed that Copeland's attorney had been ineffective in failing to address the State's claim that he had not moved for a mistrial. But she concluded that there was no reasonable possibility that this Court would have reversed Copeland's convictions even if Copeland had pointed out that he had actually made a motion for a mistrial.
We agree with Judge Steinkruger's analysis. Because we were under the impression that Copeland had not moved for a mistrial, we reviewed the issue only for plain error. Had we been aware that Copeland had moved for a mistrial, we would have reviewed his claim under an abuse of discretion standard. But in our decision, we pointed out that Copeland had not advanced any credible claim that he had been prejudiced by Gray's testimony, which was confirmed by our review of the record:
Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
In light of this governing law, even if Copeland had adequately briefed the issue of prejudice, we would find no plain error. Copeland never disputed that he knew Gray, or that Gray had given him a key to the apartment rented on behalf of "Ray Enoch", or that he (Copeland) was the one paying the rent on the apartment. Thus, the question that Gray refused to answer did not concern a contested subject. Not only did this reduce the danger of prejudice from Gray's assertion of the Fifth Amendment, but it also made it more likely that the jury would follow Judge Murphy's cautionary instruction and disregard Gray's assertion of privilege.
In sum, there was no manifest necessity for a mistrial.
Copeland, 70 P.3d at 1127.
It is clear from our resolution of the mistrial issue in Copeland that we w ould have rejected the claim even if we had been aware that Copeland had preserved the issue in the trial court. We accordingly conclude that Judge Steinkruger correctly determined that Copeland was not prejudiced by his attorney's error in failing to point out that he had made a motion for a mistrial in the trial court.
The judgment of the superior court is AFFIRMED.