Opinion
Court of Appeals No. A-8643.
March 30, 2005.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge. Trial Court No. 4FA-02-823 Civ.
Alex Koponen, Fairbanks, for the Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Henry T. Nicholia was convicted of burglary and first-degree sexual assault. This Court affirmed his convictions in Nicholia v. State, 34 P.3d 344 (Alaska App. 2001).
Nicholia then filed a petition for post-conviction relief, asserting that he had received ineffective assistance of counsel from his trial attorney.
(Nicholia's petition actually refers to two potential grounds for relief: attorney incompetence, and newly discovered evidence. However, as the superior court noted in its decision, none of Nicholia's claims for relief involved new evidence. Rather, all of Nicholia's arguments involved assertions that his trial attorney incompetently handled or failed to pursue the evidence already known to her.)
The State asked the superior court to dismiss Nicholia's petition because Nicholia had failed to include an affidavit from his trial attorney, addressing his various claims of incompetent representation. See State v. Jones, 759 P.2d 558, 570 (Alaska App. 1988), where we held that when a defendant seeks post-conviction relief based on a claim of incompetence of counsel, the defendant must normally confront their former attorney with the claims of incompetence and then elicit an affidavit from the attorney containing the attorney's responses or explanations.
After the State filed its motion to dismiss Nicholia's petition, Nicholia obtained an affidavit from his trial attorney. However, this affidavit addressed only one of Nicholia's claims — the claim that his trial attorney should have moved to dismiss the grand jury indictment because of purportedly misleading testimony concerning the genetic material (DNA) found in the rape victim's body. (We will explain this in more detail later.)
After Nicholia filed his trial attorney's affidavit, the State renewed its motion to dismiss Nicholia's petition, and the superior court granted the State's motion. The superior court concluded that, because the trial attorney's affidavit addressed only one of Nicholia's claims, all of his other claims should be dismissed. And the superior court further concluded that the trial attorney's affidavit adequately explained why she did not believe that the potential inaccuracies in the DNA evidence heard by the grand jury warranted an attack on the indictment.
Nicholia now appeals the superior court's dismissal of his petition.
In his brief to this Court, Nicholia's current attorney "argues" Nicholia's claims by merely restating them. Nicholia's brief does not acknowledge that the superior court dismissed all but one of Nicholia's claims because Nicholia failed to ask his trial attorney to respond to those claims. Nor does Nicholia's brief acknowledge that the superior court concluded, based on the trial attorney's affidavit, that the trial attorney had acted reasonably when she concluded that any potential inaccuracies in the DNA testimony heard by the grand jury did not warrant an attack on the indictment.
By filing a brief that contains only conclusory assertions of error, and that does not even acknowledge the bases of the superior court's two rulings, Nicholia waived his right to challenge those rulings. We accordingly affirm the superior court's order dismissing Nicholia's petition for post-conviction relief.
See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990).
Nevertheless, in the interest of justice, we do address the merits of the one assertion that Nicholia adequately preserved in the superior court: his claim that his trial attorney incompetently failed to attack the grand jury indictment based on purported inaccuracies in the DNA testimony presented to the grand jury.
Nicholia's claim centers on the grand jury testimony given by Hayne Hamilton, a forensic chemist employed by the State Crime Laboratory. Ms. Hamilton testified that she received and tested vaginal swabs taken from the rape victim, as well as a blood sample drawn from Nicholia. Hamilton found that the vaginal swabs contained spermatozoa, but the DNA in those sperm cells was "definitely a mixture of more than one person's DNA". She testified that Nicholia could not be excluded as the source of some of this DNA, but "[some of the] DNA present [in the victim's body] could not have come from either [Nicholia or the victim]". Ms. Hamilton told the grand jury that her findings were consistent with the victim's statement that she had had sex with her boyfriend 24 to 48 hours before the rape.
After Nicholia was indicted, his trial attorney arranged for retesting of these genetic samples by an independent laboratory, using a more discriminating genetic test. The new lab results affirmatively excluded Nicholia as the contributor of any of the DNA found in the victim's body.
In his petition for post-conviction relief, Nicholia claimed that his trial attorney was incompetent because, after she obtained the results of the retesting, she did not move to dismiss the indictment. Nicholia argued that if the grand jurors had been told that this new scientific testing excluded him as the source of any of the DNA in the victim's body, he would not have been indicted for sexual assault.
But, in her affidavit, the trial attorney explained why she had not attacked the indictment:
[T]he lack of [any] DNA [from Nicholia] did not establish that Mr. Nicholia was innocent[,] as there was no evidence as to whether he ejaculated during the assault. The victim admitted that she had consensual relations with her boyfriend prior to the assault. The victim knew Mr. Nicholia well, and was in fact related to him. She identified Mr. Nicholia as [her] assailant when interviewed by the police immediately after the assault. . . . In addition, the [rape] exam performed just after the report of the assault corroborated the victim's statement. Thus, . . . even without any DNA [evidence linking Nicholia to the rape], the state had enough evidence to procure [an] indictment.
Given these circumstances, a reasonable attorney could conclude that little would be accomplished by using the new laboratory test results to attack the indictment, and that it would be better to save the new test results for possible use at trial.
Moreover, it is unclear how Nicholia's trial attorney could have used the new testing to attack the indictment. This was not a case where the prosecutor or the State's expert witness knew about the other DNA testing and withheld this knowledge from the grand jury. Ms. Hamilton's testimony was an accurate description of what the authorities knew at the time.
After Nicholia was indicted, his trial attorney arranged for further testing of the genetic material, and this testing excluded Nicholia as a source of the genetic material. But Nicholia does not identify a legal theory that would have required or authorized the superior court to dismiss the indictment based on the new test results.
Finally, under Alaska law, when a defendant claims that their attorney was incompetent for failing to attack an indictment, the defendant must show not only that the attack on the indictment would have succeeded, but also that the State would have been unable to secure are-indictment. As Nicholia's trial attorney's affidavit indicates, there was every reason to expect that the State would be able to secure a second indictment even if Nicholia successfully challenged the first one.
See Shetters v. State, 751 P.2d 31, 36 (Alaska App. 1988); Wilson v. State, 711 P.2d 547, 550 n. 2 (Alaska App. 1985).
For these two reasons, the superior court correctly concluded that Nicholia failed to present a prima facie case of attorney incompetence on the issue of a potential attack on the indictment based on the DNA evidence.
Conclusion
The judgement of the superior court is AFFIRMED.