Opinion
Court of Appeals No. A-9894.
July 23, 2008.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge, Trial Court No. 3DI-06-047 CI t/w 3DI-01-215 CR.
George J. Dozier Jr., Office of Public Advocacy Contract Attorney, Eagle River, 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.
MANNHEIMER, Judge, concurring.
MEMORANDUM OPINION AND JUDGMENT
Evan C. Sergie was convicted of attempted sexual assault in the first degree, resisting arrest, interfering with the report of a domestic violence crime, and two counts of assault in the fourth degree. We affirmed Sergie's convictions in Sergie v. State, 105 P.3d 1150 (Alaska App. 2005). Sergie then filed an application for post-conviction relief in which he argued his trial attorney was ineffective. Superior Court Judge Fred Torrisi (who was also the judge who presided over Sergie's trial) dismissed Sergie's application. Sergie appeals. We affirm.
AS 11.41.410(a)(1) and AS 11.31.100(a).
AS 11.56.700(a)(1).
AS 11.56.745(a).
AS 11.41.230(a)(1).
Sergie first contends his trial attorney was ineffective because the attorney did not raise the proper objection to the instruction Judge Torrisi gave describing the elements of attempted sexual assault in the first degree. At trial, Sergie's attorney proposed an instruction that would have required the jury to find that Sergie intended to engage in sexual penetration of S.S. and "intended the sexual penetration to be non-consensual." We discussed this issue extensively in deciding Sergie's direct appeal:
Sergie v. State, 105 P.3d 1150, 1153 (Alaska App. 2005).
[Judge Torrisi] ruled that "recklessly," not "intentionally," was the culpable mental state that applied to this element of the crime (the circumstance that the sexual penetration occurred without the victim's consent). Judge Torrisi therefore rejected Sergie's proposed jury instruction and instead gave an instruction modeled on the pattern jury instruction for attempted first-degree sexual assault. That instruction told the jurors that to convict Sergie they had to find that he "intended to engage in sexual penetration with another person without regard to that person's lack of consent."
Id.
In Sergie, we rejected Sergie's argument that the State was required to prove "that Sergie intended the circumstance that the penetration be without S.S.'s consent." We concluded that Judge Torrisi did not err in rejecting Sergie's proposed instruction.
Id. at 1155.
We then turned to Sergie's argument that the instruction Judge Torrisi gave "was flawed because it did not explicitly specify `recklessly' as the culpable mental state for the disregard of the victim's lack of consent." We pointed out that Sergie had not objected to the instruction on this ground. We therefore analyzed the instruction under a "plain error" standard. In concluding that Sergie had not established plain error, we acknowledged the "instruction might have been clearer if the court had specified that the culpable mental state applicable to this circumstance was `recklessly.'"
Id.
Id.
Id.
We stated:
We believe that reasonable people, reading the pattern jury instruction as a whole, would interpret the phrase "without regard to that person's lack of consent" as requiring the State to prove that Sergie intended to engage in sexual penetration with S.S. whether she consented or not. Moreover, the wording of the instruction allowed Sergie's attorney to argue that Sergie should be found not guilty because he had no indication that S.S. was not consenting to his sexual advance.
Id.
We also found that the instruction was not plain error because Sergie never argued that he was unaware of S.S.'s lack of consent. . . . The defense attorney presented only two arguments: that Sergie had been too intoxicated to form the intent to sexually penetrate S.S., and that even if Sergie had formed this intent, he promptly renounced it when S.S. indicated her unwillingness to engage in sexual relations.
Id.
We concluded "that the arguable imprecision in the pattern jury instruction had no effect on the litigation or decision of Sergie's case. Therefore Sergie has failed to show plain error."
Id. at 1155-56.
The State argues this court's holding that the jury instruction was not plain error is dispositive of Sergie's claim. But it is not. On direct appeal, we have before us only the trial record. In an application for post-conviction relief, the applicant has the opportunity to supplement that record. The record, as supplemented, may establish grounds for relief where the trial record did not.
But the record here, as supplemented, does not advance Sergie's claim. Sergie obtained an affidavit from his trial attorney. In that affidavit, the trial attorney gave a tactical reason for not asking for an instruction setting out that Sergie had to be reckless concerning whether S.S. consented. He stated that he thought the instruction given by the court was "more favorable than an instruction that gave reckless as the requisite mens rea." He concluded the court's instruction might have allowed "the jury to think that Mr. Sergie had to intend that his penetration be against her consent."
As Judge Torrisi recognized in dismissing Sergie's application for post-conviction relief, Sergie's trial counsel gave a tactical reason for not raising further objections. Courts presume that an attorney's tactical decisions are competent. In order to overcome that presumption, an applicant for post-conviction relief must show that the tactic was unreasonable — that is, a tactic that no competent attorney would have used. Judge Torrisi concluded Sergie had not set out a prima facie case that his trial attorney was ineffective for failing to further object to the instruction. We conclude that Judge Torrisi did not err in reaching this conclusion.
State v. Jones, 759 P.2d 558, 569-70 (Alaska App. 1988).
Sergie next argues his trial attorney was ineffective for failing to raise the proper objection when the State sought to present evidence of Sergie's 1991 conviction for sexual assault. The State sought to admit the prior conviction under Evidence Rule 404(b)(3). That rule provides that, in a prosecution for an attempted sexual assault, "evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible." Sergie objected, arguing the rule was unconstitutional. Judge Torrisi overruled the objection, and the evidence was admitted at Sergie's trial. Sergie argues that his trial attorney was ineffective for failing to object under Evidence Rule 403, which excludes evidence if its probative value is exceeded by the danger of unfair prejudice.
In his affidavit, Sergie's trial attorney states that he did not have a tactical reason for his failure to object under Evidence Rule 403. He stated, "I figured that [the prior conviction for sexual assault] would most likely come in and in the heat of trial [I] did not get around to objecting on 403 grounds and preserving the record."
With regard to Sergie's post-conviction relief application, Judge Torrisi made several observations in a tenative ruling that gave Sergie a chance to respond to the court's concerns. He observed that, at the time of Sergie's trial, defense attorneys were arguing that Evidence Rule 404(b)(3) was unconstitutional. He observed that two years after Sergie's trial, in Bingaman v. State, we rejected this argument and held that courts should examine any evidence offered under Evidence Rule 404(b)(3) and apply Evidence Rule 403 to limit the danger of unfair prejudice. Judge Torrisi stated it was unlikely that an objection based on Evidence Rule 403 would have resulted in a ruling excluding Sergie's prior conviction. He observed that it might have been possible for counsel to have obtained a jury instruction limiting the jury's consideration of the prior conviction. But he noted that, at the time of Sergie's trial, defense counsel were not asking for this instruction.
76 P.3d 398 (Alaska App. 2003).
After the State and Sergie responded to his tentative order, Judge Torrisi entered his final order dismissing the case. In that order, Judge Torrisi acknowledged that Sergie pointed out Judge Torrisi had actually given a limiting instruction to the jury about Sergie's prior conviction. (He acknowledged that Sergie thought that the instruction he gave should have been better.) He concluded that Sergie's trial counsel had made the appropriate objection in the trial court and that Sergie had not demonstrated that reciting Evidence Rule 403 would have changed the ruling. He therefore concluded Sergie had not established a prima facie case that his attorney had been ineffective.
Although Sergie's trial attorney stated he "did not really have a tactical reason" for not objecting on grounds that admitting evidence of Sergie's prior conviction would be unduly prejudicial, he actually did give a tactical reason: he did not think the objection would be successful. This is a valid tactic. Defense counsel does not have to raise every possible issue to be competent. In fact, attorneys who raise numerous objections, particularly objections of questionable merit, may undermine their credibility with the court. As Judge Torrisi pointed out, Sergie did not present any evidence that any competent counsel would raise such an objection, that such an objection would have been successful, and that it might have influenced the outcome of the case. In his tentative order, Judge Torrisi pointed out that Sergie's trial counsel objected to admitting evidence of the prior conviction and the record reflected that "a de facto discussion of the probative value and danger of prejudice took place."
On appeal, Sergie acknowledges this. But Sergie puts a different spin on the record — he points out that even though the court specifically mentioned Evidence Rule 403, Sergie's trial attorney never made an objection on that ground. The record shows that, during the discussion on the admissibility of Sergie's prior conviction, Judge Torrisi specifically mentioned that Evidence Rule 403 applied. The fact that Judge Torrisi specifically mentioned Evidence Rule 403 arguably supports the State's argument that Sergie's trial attorney considered Evidence Rule 403 but decided not to object on that ground. And it arguably indicates Judge Torrisi would not have reached a different decision had it been raised. We accordingly conclude that Judge Torrisi did not err in dismissing Sergie's application for post-conviction relief.
The judgment of the superior court is AFFIRMED.
I write separately to supplement the majority's discussion of Sergie's major point on appeal: his contention that his trial attorney incompetently failed to object to the jury instruction on the elements of attempted first-degree sexual assault.
At trial, Sergie's attorney proposed an instruction which would have informed the jury that the State was required to prove (1) that Sergie intended to engage in sexual penetration with the victim, and (2) that Sergie "intended th[is] sexual penetration to be non-consensual." As we explained when we decided Sergie's direct appeal, this latter culpable mental state was incorrect: the State was obliged to prove that Sergie acted recklessly (rather than intentionally) with regard to whether the intended sexual penetration would be non-consensual.
Sergie v. State, 105 P.3d 1150, 1153 (Alaska App. 2005).
Id. at 1155.
On direct appeal, Sergie presented the alternative argument that, if the applicable culpable mental state was "recklessly", the jury instructions failed to inform the jury of this. We rejected this claim of error because we concluded that the jury instructions did, in fact, communicate this concept.
The jurors in Sergie's case were told that, before Sergie could be convicted of attempted first-degree sexual assault, the State had to prove that Sergie "intended to engage in sexual penetration with [the victim] without regard to that person's lack of consent." We concluded that this language was sufficiently close to the legal definition of "recklessly" that Sergie was not prejudiced by the variant wording. We also noted that Sergie's attorney never asked for a more explicit jury instruction on this point, and that Sergie's defense to the charge did not hinge on whether he acted recklessly with regard to his victim's lack of consent. Instead, Sergie's defense at trial was Sergie had been too intoxicated to form an intent to sexually penetrate the victim — and that, even if he had formed this intent, he promptly renounced it when the victim indicated that she was unwilling to engage in sexual relations.
Id. at 1153.
Id. at 1155.
Id.
Based on all of the foregoing, we concluded that "the arguable imprecision in the . . . jury instruction had no effect on the litigation or decision of Sergie's case."
Id. at 1155-56.
In this post-conviction relief litigation, Sergie contended that his trial attorney was incompetent for failing to seek a jury instruction that explicitly required the jury to find that Sergie acted "recklessly" with regard to the victim's lack of consent to the act of sexual penetration. Sergie concedes that, when this Court decided his direct appeal, we concluded that he was not prejudiced by the wording of the jury instruction, given the way the case was litigated. But in the superior court, Sergie argued that his trial attorney's litigation strategy was flawed — that the attorney should have pursued a defense that rested explicitly on Sergie's lack of recklessness, and that, if such a trial strategy had been pursued, Sergie would then have been prejudiced by the failure of the jury instruction to explicitly identify "recklessly" as the governing culpable mental state.
Judge Torrisi correctly perceived that, even though Sergie framed his argument as a claim that his trial attorney was incompetent for failing to object to the wording of the jury instruction on the elements of attempted first-degree sexual assault, Sergie's true assertion of attorney incompetence was that his case should have been "argued in a wholly different manner". Thus, the true underlying issue was "whether no competent criminal law practitioner would have handled [Sergie's case] the same way".
See our recent decision in Burton v. State, 180 P.3d 964, 970 973-74 (Alaska App. 2008).
Judge Torrisi concluded that Sergie failed to present a prima facie case that his trial attorney's chosen trial strategy was incompetent, and I agree. It is true, as Sergie points out, that other defense attorneys might have chosen to focus on a defense of lack of recklessness concerning the victim's non-consent rather than a defense of lack of intent to engage in sexual penetration. But the issue is whether Sergie's trial attorney's choice of defense strategy was so lacking in merit that no reasonable criminal law practitioner would have approached Sergie's case that way. Under this test, Sergie offered no reason to doubt the competence of his trial attorney's approach.
In a related argument, Sergie contends that Judge Torrisi should not have decided this issue without giving Sergie the opportunity to present expert testimony at an evidentiary hearing. Sergie points to the fact that, in one of his superior court pleadings, he informed Judge Torrisi that he "intend[ed] to present expert testimony concerning [the] minimal standards for defense counsel".
However, in that same pleading, Sergie acknowledged that he "ha[d] not yet selected his expert witness." More importantly, Sergie made no offer of proof concerning the expected content of the expert's testimony. In other words, Sergie failed to assert that his as-yet-unselected expert would actually attack his trial attorney's handling of the case. Given Sergie's failure to make an offer of proof on this issue, Judge Torrisi was not obliged to hold an evidentiary hearing.