Opinion
Court of Appeals No. A-11066 Trial Court No. 3PA-09-2586 CI No. 6000
12-11-2013
JASON M. THOMPSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David K. Allen, Sechelt, British Columbia, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath, Judge.
Appearances: David K. Allen, Sechelt, British Columbia, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge .
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge MANNHEIMER.
In 2006, Jason M. Thompson (who was eighteen years old at the time) engaged in consensual sexual penetration with a thirteen-year-old girl. Based on this conduct, Thompson was convicted of second-degree sexual abuse of a minor. This Court affirmed Thompson's conviction on direct appeal: see Thompson v. State, 210 P.3d 1233 (Alaska App. 2009).
AS 11.41.436(a)(1).
After this Court affirmed Thompson's conviction, Thompson filed a petition for post-conviction relief. In his petition, Thompson alleged that the assistant district attorney who prosecuted him was, at the time of the litigation, engaged in a sexual relationship with the state trooper who was the lead investigator in Thompson's case. (The State does not dispute this.)
Because this sexual relationship between the prosecutor and the state trooper was not disclosed to Thompson's defense attorney, and because this sexual relationship was potentially important to assessing the trooper's bias, Thompson argued that his attorney's ignorance of this sexual relationship rendered the attorney "involuntarily" ineffective.
In the alternative, Thompson argued that the prosecutor or the prosecutor's supervisors were required to disclose the existence of this sexual relationship to the defense attorney, because it potentially constituted important impeachment of the state trooper. See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Thus, Thompson asserted, the government's failure to disclose this relationship was a violation of Thompson's right to due process of law.
The superior court concluded that Thompson's petition for post-conviction relief failed to set forth a prima facie case for relief, and the court therefore dismissed the petition. Thompson now appeals the superior court's decision. For the reasons explained here, we affirm the judgement of the superior court.
The superior court's resolution of Thompson's petition for post-conviction relief
As we have explained, Thompson argued that the State's failure to disclose the sexual relationship between the prosecutor and the state trooper entitled him to postconviction relief under two legal theories.
Thompson's first theory was that his defense attorney was rendered "involuntarily" ineffective because the attorney did not know about the sexual relationship between the prosecutor and the trooper. The superior court rejected this theory because the court rejected Thompson's underlying legal premise — the premise that, even when there is no proof that a competent attorney would have discovered the information, a defense attorney's ignorance of information pertaining to the case can render that attorney "ineffective" or "incompetent" as a matter of law.
Thompson's second theory was that the government's failure to disclose this sexual relationship violated his right to due process of law. The superior court rejected Thompson's due process claim because the superior court concluded that the new information about the sexual relationship was immaterial — i.e., that this information would not have undermined the State's case in any significant way, and that it would not have altered the jury's verdict.
The superior court declared that the case against Thompson was "overwhelming", and the court noted that Thompson had presented no evidence to suggest that the trooper conducted the investigation improperly, or gave false testimony, or manipulated or altered the evidence in the case.
Thompson's argument that the State's failure to disclose the sexual relationship rendered his trial attorney "involuntarily" ineffective
On appeal, Thompson renews his contention that a defense attorney can be rendered "involuntarily" ineffective or incompetent when the government withholds information pertinent to the case. Thompson does not claim that his attorney should have known about the sexual relationship between the prosecutor and the state trooper. Instead, he argues that his attorney's ignorance of this relationship (even if that ignorance was completely justified) is itself a form of attorney incompetence.
Thompson analogizes his situation to the facts of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), where the Supreme Court reaffirmed the principle that the government must provide reasonable funding to indigent criminal defendants — not just to pay for an attorney, but also to pay for "the basic tools of an adequate defense" (such as access to a competent psychiatrist). Id., 470 U.S. at 77, 105 S.Ct. at 1093.
Thompson argues that, in his case, knowledge of the sexual relationship between the prosecutor and the state trooper was among the needed "tools [for] an adequate defense". But Thompson's suggested analogy to Ake v. Oklahoma is unconvincing. Thompson's case is not an instance where the government refused to provide an indigent defendant with crucial investigative services or a crucial expert witness. Instead, the government hid a potentially damaging fact about the relationship between its prosecutor and its lead investigator.
More importantly, the Ake decision was not grounded on the theory that the defendant was denied the effective assistance of counsel when the government declined to pay for his psychiatric expert. Rather, the decision in Ake was based on the principle that indigent defendants should have fair access to justice — a principle grounded on notions of due process and equal protection. See id., 470 U.S. at 76-77 & n.3 and 86-87; 105 S.Ct. at 1092-93 & n.3 and 1098.
For these reasons, we reject Thompson's argument that his trial attorney was rendered "involuntarily" ineffective by the government's failure to disclose the sexual relationship between the prosecutor and the state trooper.
Thompson's argument that the State's failure to disclose the sexual relationship violated his right to due process of law
Thompson alternatively argues that the government's failure to disclose the sexual relationship between the prosecutor and the state trooper violated his right to due process of law.
United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), holds that when a defendant raises a due process claim based on the prosecution's failure to disclose exculpatory or impeaching evidence, the defendant must establish the materiality of that evidence in order to be entitled to a remedy. Id., 473 U.S. at 682-84, 105 S.Ct. at 3383-85. In this context, evidence is "material" when "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id., 473 U.S. at 682, 105 S.Ct. at 3383-84.
Thompson's defense to the charge of sexual abuse of a minor was that he acted under a reasonable mistake concerning the victim's age. (Under AS 11.41.445(b)(1), Thompson's reasonable belief that the victim was sixteen years of age or older was an affirmative defense to the charge against him.) However, the State presented substantial evidence that Thompson was aware of the girl's true age, at least toward the end of their relationship.
The victim testified at trial that she informed Thompson of her true age early in their relationship — sometime in August 2006. The girl's mother testified that she repeatedly informed Thompson of her daughter's true age (in August, in September, and in October). However, as we described in our earlier opinion in this case, Thompson v. State, 210 P.3d 1233 (Alaska App. 2009), the key evidence that Thompson was aware of the girl's true age — at least toward the end of their relationship — came from Thompson's own words, recorded during his telephone conversations with the girl's mother in mid-October.
The victim's mother was aware that her daughter was dating Thompson, and she suspected that Thompson and her daughter were having sexual relations. The mother therefore spoke to both Thompson and her daughter about the nature of their relationship: she told Thompson that her daughter was only thirteen years old, and she expressed her view that their relationship was inappropriate, given the difference in their ages. However, despite the mother's misgivings, Thompson and the young girl continued their sexual relationship.
Thompson, 210 P.3d at 1234.
Ibid.
Concerned for her daughter, the girl's mother contacted the Alaska State Troopers. In mid-October 2006, a trooper investigator spoke with the girl's mother and then obtained a Glass warrant that authorized the recording of conversations between the mother and Thompson. Under the authority of this warrant, the trooper furnished recording equipment to the girl's mother, showed her how to use this equipment to record telephone conversations, and directed her to try to engage Thompson in telephone conversations about his relationship with her daughter.
See State v. Glass, 583 P.2d 872 (Alaska 1978) (holding that, under the Alaska Constitution, the police must obtain a warrant before electronically monitoring or recording a private conversation, even when one or more participants to the conversation consent to the police surveillance).
Thompson, 210 P.3d at 1234.
Two weeks later, the girl's mother gave the trooper an audio tape that contained two recorded conversations between herself and Thompson. In these taped conversations, Thompson admitted that he had had sexual intercourse with the girl, and Thompson also admitted that he knew she was only thirteen years old.
Ibid.
In his direct appeal, Thompson contended that it was improper for the trooper to allow the mother to record these two conversations without the trooper's direct supervision. Thompson argued that when the police use a civilian to perform electronic recording under a Glass warrant, one or more officers must directly supervise or monitor the civilian's actions. We rejected this contention, holding that Alaska law does not require this direct supervision or monitoring.
Id. at 1236.
Id. at 1237.
Thompson also argued that the State failed to satisfactorily establish the authenticity of the two recordings — i.e., failed to establish that the recordings accurately portrayed the conversations between Thompson and the girl's mother. We rejected this contention as well:
Id. at 1237-38.
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[The girl's] mother testified that she had reviewed the transcripts of the two recordings, and that these transcripts reflected the two conversations she recorded.Thompson, 210 P.3d at 1239.
... Moreover, Thompson offered nothing to affirmatively rebut the State's evidence on this issue. Thompson never challenged the fact that it was his voice on the recordings, nor did Thompson challenge the fact that he had engaged in conversations with [the girl's] mother concerning his relationship with [the girl], nor did Thompson present any evidence tending to show that the recordings offered by the State inaccurately portrayed the content of his conversations with [the girl's] mother.
In Thompson's post-conviction relief litigation, the superior court concluded, based on this record, that the newly discovered information about the sexual relationship between the prosecutor and the state trooper was not material under the Bagley test because this information would not have altered the jury's verdict.
On appeal, Thompson argues that knowledge of the trooper's sexual relationship with the prosecutor might have been quite important to the jury when it evaluated the trooper's potential bias and his credibility as a witness. But the disputed issue at trial was whether Thompson reasonably believed that the girl was old enough to validly consent to the sexual activity. The State's evidence on this issue did not come from the trooper, nor did it rest on his credibility.
In Thompson's petition for post-conviction relief, he had to explain how, under the facts of his case, there was a reasonable possibility that the jury's verdict would have been different if the jurors had been apprised of the sexual relationship between the prosecutor and the state trooper. We agree with the superior court that Thompson's petition was deficient on this point — and, thus, subject to dismissal.
Conclusion
The judgement of the superior court is AFFIRMED.