Opinion
Court of Appeals No. A-8983.
February 22, 2006.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Ben J. Esch, Judge. Trial Court No. 2KB-98-060 CI.
Dan S. Bair, Anchorage, and Chad W. Holt, Assistant Public Advocate, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
William A. Howarth Sr. appeals the superior court's third dismissal of his application for post-conviction relief. The last time this case was before this court, we affirmed the superior court's dismissal of the application with the exception of a potential claim of newly discovered evidence. Because we concluded that Howarth might be entitled to post-conviction relief based on that claim, we remanded to the superior court for additional litigation.
Howarth v. State, Alaska App. Memorandum Opinion No. 4704 (May 7, 2003), 2003 WL 21019413.
The superior court considered and rejected Howarth's remaining claim and dismissed the application. Because we conclude that the superior court properly dismissed Howarth's remaining claim, we affirm the superior court's decision.
Background and history of the case
The grand jury indicted Howarth for first-degree murder for killing Mary Olanna. A jury convicted Howarth of second-degree murder. On direct appeal, we affirmed Howarth's conviction and 99-year sentence.
AS 11.41.110(a).
Howarth v. State, Alaska App. Memorandum Opinion and Judgment No. 3724 (Dec. 17, 1997), 1997 WL 775566.
In September 1997, while the direct appeal was still pending, Howarth filed a pro se application for post-conviction relief. The superior court ultimately dismissed Howarth's application, but in Howarth v. State, we reversed the dismissal and remanded the case for further litigation on Howarth's application.
Howarth v. State, 13 P.3d 754 (Alaska App. 2000).
Id. at 757.
On remand, the superior court appointed attorney Greg Parvin to represent Howarth. After investigating the case, Parvin filed pleadings with the court asserting that Howarth's application contained no colorable claim for post-conviction relief and could not be amended to state a colorable claim for relief. Again, the superior court dismissed Howarth's application.
See Alaska Criminal Rule 35.1(e)(2)(B).
On appeal, we affirmed the dismissal of the application, except that we remanded the case to the superior court to consider a potential newly discovered evidence claim — a claim that a potential witness named Richard Gallahorn Jr. had material information relating to the whereabouts and activities of Victor Norton on the night of the homicide. Howarth contended that Norton was an alternative potential suspect in Olanna's murder.
See Howarth, Memorandum Opinion No. 4704 at 24, 2003 WL 21019413 at *14.
In that same decision, we considered Howarth's claim that his trial attorney was incompetent for failing to pursue certain leads that implicated Norton, who was apparently Olanna's boyfriend. We upheld the superior court's rejection of those claims for two reasons. First, Howarth's application did not state a prima facie case because it was not supported by either an affidavit from his trial attorney addressing the claims of incompetence or an explanation why an affidavit could not be obtained. Second, Howarth's ineffectiveness claim relied on an assertion that his trial attorney had incompetently accused another potential suspect in the homicide, Darlene Snyder, rather than Norton, when there was arguably reason to suspect each of them. The record supported the trial attorney's choice to identify Snyder as another suspect. For example, evidence suggested that Snyder had a motive (jealousy) and the opportunity to commit the homicide (Snyder admitted to being at the scene).
Id. at 6-9, 2003 WL 21019413 at *2-4.
Id. at 7-8, 2003 WL 21019413 at *3-4.
See, e.g., Peterson v. State, 988 P.2d 109, 113-14 (Alaska App. 1999).
In State v. Jones, we stated that "if it appears that counsel's [investigative] actions were undertaken for tactical or strategic reasons, they will be virtually immune from subsequent challenge." The trial attorney's analysis of the case identified both Norton and Snyder as other potential suspects, but ultimately, the attorney focused the accusation on Snyder.
759 P.2d 558 (Alaska App. 1988).
Id. at 569.
The superior court found that the trial attorney's choice to accuse Snyder was a sound tactical decision. Given the evidence that supported the tactical choice, we agreed with the superior court that the trial attorney did not act incompetently when she focused Howarth's defense on Snyder. Therefore, we upheld the superior court's finding. Howarth's remaining claim
See Howarth, Memorandum Opinion No. 4704 at 7-9, 2003 WL 21019413 at *4.
Id. at 9, 2003 WL 21019413 at *4.
To support the newly-discovered evidence claim, Howarth filed an affidavit with the superior court describing a conversation he had with Gallahorn while they were both in jail. Howarth asserted that Gallahorn told him Gallahorn met Norton the night of Olanna's murder while Gallahorn was working the night shift at a detox/homeless shelter. According to Howarth's affidavit, Norton asked Gallahorn to wake up a resident of the shelter to accompany him to Howarth's house to see if Olanna was there. Gallahorn refused to wake the resident up, as it was between two and three o'clock in the morning and the shelter was closed. Howarth stated that his trial attorney knew about this encounter but did not investigate further.
Superior Court Judge Ben Esch ruled that Gallahorn's conversation with Howarth was inadmissible hearsay because Gallahorn was no longer available as a witness. (Gallahorn committed suicide in March 1996). Howarth did not specify a theory of admissibility in the superior court.
Under Alaska Evidence Rule 801(c), an out-of-court statement offered to prove the truth of the matter asserted is hearsay. Howarth does not dispute that Gallahorn's statement is hearsay, but he argues on appeal that the evidence is admissible under the "residual" hearsay exception codified in Evidence Rule 804(b)(5).
As this Court explained in Ryan v. State, Evidence Rule 804(b)(5) authorizes a court to admit hearsay that is otherwise inadmissible if the proponent of the evidence proves: (1) that the person who made the statement is unavailable as a witness; (2) that the out-of-court statement has "circumstantial guarantees of trustworthiness" equivalent to the trustworthiness of the out-of-court statements admissible under other recognized hearsay exceptions; (3) that the hearsay evidence is related to an important disputed fact; (4) that the hearsay evidence is more probative on the disputed point than any other evidence the proponent could procure through reasonable efforts; and (5) that the general purposes of the evidence rules and the interests of justice would be best served by admission of the hearsay.
899 P.2d 1371 (Alaska App. 1995).
Id. at 1374-75.
With regard to the requirement of "circumstantial guarantees of trustworthiness," this Court has held that the circumstances surrounding the hearsay statement must indicate that the statement is "so inherently trustworthy, so free from possible doubt, that cross-examination of [the declarant] concerning [the statement] would yield negligible benefit" to an opposing party. Furthermore, the required guarantees of trustworthiness "must be established solely from the circumstances of the statement and the mental state of the declarant" — "the nature and character of the statement, the relationship of the declarant to the other parties, the probable motivation of the declarant in making the statement, and the circumstances under which the statement was made."
Id. at 1382.
Id. at 1375, 1379 (internal quotations omitted).
According to the record, Gallahorn made his statement to Howarth while both men were in custody together, discussing Howarth's case. There is nothing to indicate that these circumstances, or Gallahorn's mental state at the time, established circumstantial guarantees of trustworthiness sufficient to meet the standard of Evidence Rule 804(b)(5). Gallahorn's statement was not so obviously trustworthy that "adversary testing would add little to its reliability." Thus, Judge Esch could reasonably conclude that the offered hearsay evidence was inadmissible. This, in itself, would be a sufficient reason to deny Howarth's claim for post-conviction relief.
Id. 1375 (quoting Idaho v. Wright, 497 U.S. 805, 821, 110 S. Ct. 3139, 3149, 111 L. Ed. 2d 638 (1990)).
Moreover, even if we assumed that hearsay testimony concerning Gallahorn's out-of-court statement would be admissible, Howarth's claim would be subject to dismissal because he did not show that Gallahorn's statement was newly discovered evidence.
When a defendant seeks post-conviction relief based on newly discovered evidence, the defendant must meet the same test that governs motions for new trials based on newly discovered evidence. In Salinas v. State, the Alaska Supreme Court specified that a motion for new trial based on newly discovered evidence must establish the following elements:
Tazruk v. State, 67 P.3d 687, 689 n. 2 (Alaska App. 2003) (citing Lewis v. State, 901 P.2d 448, 450 (Alaska App. 1995)).
373 P.2d 512 (Alaska 1962).
(1) . . . [t]hat the evidence relied on is, in fact, newly discovered, i.e., discovered after the trial; (2) [the party seeking the new trial acted with] diligence . . .; (3) the evidence relied on [is] not . . . merely cumulative or impeaching; (4) [the new evidence is] material to the issues involved; and (5) [the new evidence, if presented at] a new trial, would probably produce an acquittal.
Id. at 514.
In Howarth's case, Judge Esch found that Gallahorn's out-of-court statement to Howarth was merely cumulative of other evidence presented at Howarth's trial. The record supports the judge's finding.
Howarth asserts that Gallahorn's statement establishes that Norton was near the scene of the crime at approximately the time of the crime, that Norton had inquired about Olanna, and that Norton believed Olanna was at Howarth's house. But these points were already established by other evidence. One witness, Paula Smalley, told an investigator (before the trial) that Norton had been looking for Olanna near the time of the murder and had inquired about her. Darlene Snyder testified at trial that someone had seen Norton leaving Howarth's house near the time of the murder. Furthermore, Norton himself testified at Howarth's trial, and Norton's own testimony as to his whereabouts at the time of his encounter with Gallahorn would be equally, if not more, probative on the disputed point than Gallahorn's statement.
We note, in particular, that Norton testified at Howarth's trial that he had "nothing to do with" Olanna's murder, and that Howarth's defense attorney directly challenged Norton on this point, confronting him with Snyder's testimony suggesting that Norton was involved in Olanna's murder.
Because the information in Gallahorn's out-of-court statement was available from other sources at the time of Howarth's trial, Judge Esch did not abuse his discretion when he found that Gallahorn's statement was cumulative.
See Charles v. State, 780 P.2d 377, 383-84 (Alaska App. 1989) (finding that new evidence containing information already presented at trial was cumulative).
We conclude, on two separate bases, that Judge Esch properly dismissed Howarth's application for post-conviction relief. First, testimony concerning Gallahorn's out-of-court statement was not admissible under any exception to the hearsay rule. Second, even if testimony concerning Gallahorn's statement had been admissible, this evidence was cumulative, and it, therefore, would not justify a new trial.
Conclusion
The judgment of the superior court is AFFIRMED.