Opinion
A-13828 7105
05-15-2024
COLTEN EVAN ZAUKAR, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Barber Legal Services, Boston, Massachusetts, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
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, although it may be cited for whatever persuasive value it may have. See McCoy v. State, 80 P.3d 757, 764 (Alaska App. 2002).
Appeal from the Superior Court, Fourth Judicial District, Bethel, Nathaniel Peters, Judge. Trial Court No. 4BE-17-00106 CI
Michael L. Barber, Barber Legal Services, Boston, Massachusetts, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG JUDGE
Colten Evan Zaukar was convicted, following a jury trial, of second-degree robbery and first-degree burglary after he broke into a woman's home and held her to the ground while demanding money. This Court affirmed his convictions on direct appeal. Zaukar then filed an application for post-conviction relief, arguing that his trial attorney provided ineffective assistance of counsel. After appointed counsel amended the application, the superior court dismissed the application for failure to state a prima facie case for relief.
AS 11.41.510 and AS 11.46.300(a)(1), respectively.
See Zaukar v. State, 2015 WL 6110294, at *1 (Alaska App. Oct. 14, 2015) (unpublished).
Zaukar now challenges the superior court's dismissal, raising two claims. First, Zaukar argues that his trial attorney was ineffective when he abandoned a specific third-party perpetrator defense in favor of a more general defense. Second, Zaukar argues that his attorney's failure to properly advise him or otherwise prepare him to testify amounted to ineffective assistance of counsel. For the reasons set out in this decision, we reject Zaukar's claims and affirm the order of the superior court dismissing Zaukar's application for post-conviction relief.
Facts and proceedings
One night in August 2011, Amanda Chief was alone in the house she shared with her boyfriend, who was out of town that night. Around midnight, Zaukar called Chief's house multiple times and asked if her boyfriend was home. Although Zaukar did not identify himself on the phone, Chief recognized both his displayed phone number and his voice. Chief told Zaukar that her boyfriend was out of town, and then fell asleep in her living room.
Early that morning, Chief awoke to discover the front door to the house open. As Chief walked around the house looking for an intruder, a man she later identified as Zaukar appeared and pushed her to the floor. Zaukar held his hand over Chief's mouth, pressed his knee against her chest, and demanded that she give him money. Chief pleaded with him to leave, and after roughly fifteen minutes, Zaukar let Chief up. When he did so, his sweatshirt fell away from his face, giving Chief a view of the intruder. Zaukar then left the house.
Chief called 911 to report the attack. She told the operator that the intruder was wearing a gray hooded sweatshirt and glasses, and that he had facial hair. Although Chief recognized the intruder as the son of her boyfriend's friend, she could not remember his name until she spoke with her boyfriend. Chief called 911 a second time and provided Zaukar's name.
Shortly after Chief's initial 911 call, Bethel Police Officer Amy Davis located Zaukar less than two blocks from Chief's house and stopped him because he matched the description given by Chief. A second person, Philip Simeon, was walking alongside Zaukar at the time of the stop. Officer Davis arrested Zaukar for a probation violation and, based on Chief's report to the police and her identification of Zaukar, the State subsequently charged him with second-degree robbery and first-degree burglary.
Prior to trial, Zaukar provided notice that he intended to rely on a third-party perpetrator defense, specifically arguing that Simeon was the one who committed the crimes against Chief. Zaukar's attorney explained that he expected there to be evidence that Simeon was in fact the one wearing a gray hooded sweatshirt at the time of Zaukar's arrest, and that Simeon also had facial hair at the time of the incident, matching Chief's description of her attacker. The superior court found that, while the proposed evidence was "weak," the court would allow Zaukar to present this evidence at trial if he laid a sufficient foundation.
Zaukar's case proceeded to a jury trial. During cross-examination of Officer Davis, defense counsel attempted to elicit evidence that Simeon matched the description provided by Chief, but he was unable to do so. Instead, Officer Davis testified that it was Zaukar, and not Simeon, who was carrying a gray hooded sweatshirt at the time of the arrest, directly contradicting the attorney's attempts to implicate Simeon as the perpetrator.
Following the State's case-in-chief, Zaukar's attorney informed the court that he intended to call four witnesses. When the court inquired whether Zaukar intended to testify, Zaukar personally informed the court that he would not testify.
Shortly after this inquiry, however, two of Zaukar's witnesses became unavailable to testify. Eugene Morgan, Zaukar's half-brother, was recovering from an appendectomy. And Vernon Zaukar, Zaukar's father who had previously invoked his Fifth Amendment privilege against self-incrimination, was not granted immunity by the State.
Zaukar's attorney requested some time to discuss these witness issues with Zaukar, but he did not ask for a continuance of the trial. Following a short recess, Zaukar's attorney informed the court that Zaukar had changed his mind and decided to testify. The court then engaged Zaukar in the following colloquy:
Court: Mr. Zaukar, we went through this early on, before the State started its case. Then probably an hour and a half or so ago, I questioned you under what's called 27.1. That's just the rule number, and you said you did not want to testify. So you have changed your mind, I understand?
Zaukar: Yes.
Court: Okay. And you've done that with advice of counsel?
Zaukar: Yes.
Court: All right. So it's your decision, though?
Zaukar: Yes.
Court: All right, sir. All right.
Zaukar then testified in his own defense. He asserted that he did not have a gray hooded sweatshirt or his cell phone with him at the time of his arrest. He testified that when he was arrested, he handed his hat, wallet, keys, and cigarettes to his brother, Eugene, but that he did not hand over a sweatshirt or a cell phone.
Following Zaukar's testimony, the defense rested, and the State recalled Officer Davis in rebuttal. Officer Davis testified that Zaukar, Simeon, and a second officer were the only people present at the time of the stop; Eugene was not there. Officer Davis also stated that Zaukar's property was handed to Simeon, and that the property included Zaukar's cell phone, which she had discovered in his pocket. The State then played the audio recording of the arrest, in which Zaukar told Officer Davis to "give his phone to his cousin," the term he had used for Simeon. Finally, Officer Davis testified that while Zaukar was wearing only a black tank top, he was holding a gray hooded sweatshirt at the time of the arrest.
Following the close of evidence, Zaukar's attorney withdrew his request for a specific third-party defense instruction, explaining that he had "no basis for it." In his closing argument, the attorney acknowledged that someone had committed this "despicable crime," but attempted to raise doubt as to whether Zaukar was the perpetrator. Rather than accuse Simeon specifically, the attorney argued that the perpetrator must have been someone who looked like Zaukar.
The jury found Zaukar guilty of both charges.
Zaukar appealed to this Court, and we affirmed his convictions. Zaukar then filed an application for post-conviction relief, and the superior court appointed an attorney to assist Zaukar. The attorney filed an amended application which alleged that Zaukar's trial attorney was ineffective when he (1) abandoned the specific third-party defense despite having received a favorable pretrial ruling on the issue, (2) failed to prepare Zaukar to testify, and (3) failed to call witnesses to testify in Zaukar's defense.
Id.
On appeal, Zaukar does not renew this third claim - that his trial attorney was ineffective because he failed to call witnesses to testify in Zaukar's defense.
Zaukar's application was supported by a brief personal affidavit in which Zaukar stated, "I truthfully told the court I did not wish to testify. Shortly after announcing that decision, my attorney told me to testify, but we never prepared for my testimony, nor was I aware of what I would be asked on cross examination[.]" He also asserted that he "thought that [his] attorney was calling witnesses in [his] defense." Because Zaukar's trial attorney had passed away, the application did not include an affidavit from the attorney.
The State moved to dismiss Zaukar's application for failure to state a prima facie case for relief. The superior court agreed and dismissed Zaukar's application.
This appeal followed.
Zaukar's claim regarding the specific third-party perpetrator defense
Zaukar first argues that the superior court erred in dismissing his claim that his trial attorney was ineffective when he abandoned a specific third-party perpetrator defense. Specifically, Zaukar argues that the attorney was ineffective when he did not accuse Simeon directly, and instead argued more broadly that someone else committed the crime, despite a favorable pretrial ruling from the trial court that Zaukar could rely on this defense.
Whether a defendant's application for post-conviction relief sets forth a prima facie case for relief is a question of law that we review de novo. To establish a prima facie case of ineffective assistance of counsel, Zaukar was required to plead facts which, if true, would establish (1) that his attorney acted incompetently when he chose to only argue a more general third-party perpetrator defense; and (2) that there is a reasonable possibility that, but for the attorney's incompetence, the outcome of Zaukar's case would have been different.
See David v. State, 372 P.3d 265, 269 (Alaska App. 2016).
See Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974); State v. Carlson, 440 P.3d 364, 389 (Alaska App. 2019).
As we have repeatedly recognized, "The law presumes that an attorney has acted competently, and that the attorney's decisions were prompted by sound tactical considerations." To overcome this presumption and succeed on his claim, Zaukar needed to demonstrate that the tactic employed by his trial attorney was one that "no reasonably competent attorney would have adopted under the circumstances."
Newby v. State, 967 P.2d 1008, 1016 (Alaska App. 1998) (citing State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988)).
Jones, 759 P.2d at 570.
But Zaukar's amended application set forth only a few conclusory sentences as to this issue. Here is Zaukar's entire argument on this issue:
[T]rial counsel had a favorable ruling allowing other suspect evidence to be presented. The opening statement professed the idea that Mr. Zaukar was not the culprit. However, the entire idea was abandoned. There was no coherent defense of why Mr. Zaukar was not the culprit, other than his disastrous testimony.
Contrary to these assertions, Zaukar's attorney did not entirely abandon the theory that Zaukar "was not the culprit." Although the record shows that the attorney abandoned his targeted third-party defense, the attorney still argued that the crime was perpetrated by someone else.
Moreover, the attorney only abandoned his plan to argue that Simeon committed the offenses when the evidence that the attorney had hoped to elicit in support of this defense did not materialize. Officer Davis testified that Zaukar, not Simeon, was carrying a gray hooded sweatshirt, and Zaukar was unable to call his anticipated witnesses. The attorney's decision was grounded in the evidence presented, and Zaukar has not shown that this decision was one that no reasonable attorney would have made. Critically, Zaukar does not point to any additional evidence that his attorney should have presented that would have further supported his alternative suspect theory, nor did he provide any indication of what his witnesses would have testified to.
We note that the Alaska Supreme Court's decision in Smithart v. State, 988 P.2d 583 (Alaska 1999), only governs the introduction of independent evidence to support a defendant's alternative suspect claim, and does not limit the defendant's ability to argue reasonable inferences from the evidence. See Myomick v. State, 2011 WL 3369272, at *3 (Alaska App. Aug. 3, 2011) (unpublished). Nonetheless, Zaukar failed to present a prima facie case that his attorney's decision to forgo a specific third-party perpetrator defense in light of the evidence actually elicited at trial was an unreasonable one, or that there is a reasonable possibility that accusing Simeon specifically would have resulted in a different outcome, given the evidence. Cf. Condon v. State, 498 P.2d 276, 284-86 (Alaska 1972) (noting that "the cases generally are in agreement that an attorney's choice of defense theory ordinarily will not be subject to a claim of denial of effective assistance of counsel," and holding, in that case, that the decision to forgo alternative defenses was reasonable in light of the facts of the case).
Indeed, Zaukar's personal affidavit does not discuss the third-party perpetrator defense at all - and instead focuses solely on his own testimony. As the superior court pointed out, Zaukar's affidavit thus provided "no personal knowledge of why the defense was not more strenuously argued," nor "how he had been prejudiced by trial counsel failing to mention a [specific] third-party perpetrator."
For these reasons, we conclude that Zaukar failed to state a prima facie case for relief and the superior court did not err in dismissing Zaukar's claim regarding his attorney's abandonment of the specific third-party perpetrator defense.
Zaukar's claim regarding his testimony at trial
On appeal, Zaukar also renews his argument that his trial attorney was ineffective because he failed to properly advise Zaukar regarding his decision to testify and failed to adequately prepare him to testify.
To succeed on this claim, Zaukar was required to plead sufficient facts to establish that his attorney's conduct fell below the minimal level of competency of a criminal law practitioner - i.e., that the attorney took an action or made an omission that no reasonably competent attorney would have taken or made. At this stage in the post-conviction proceedings, the superior court was obliged to treat all "well-pleaded assertions of fact" in Zaukar's petition as true, and then decide whether these assertions of fact, if ultimately proven, would entitle Zaukar to post-conviction relief. But the court "need not assume the truth of pro forma assertions of the ultimate facts to be proved when these assertions are not supported by specific details."
See Risher, 523 P.2d at 424-25.
LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007) (collecting cases).
Id. at 481.
The record shows that Zaukar initially told the court that he did not wish to testify in his own defense, but after various issues arose with respect to the witnesses that he had intended to call, his attorney asked for a brief recess to speak with Zaukar. Following this short discussion, Zaukar informed the court that he had changed his mind and had decided to testify. Zaukar's attorney did not ask for a continuance or for any additional time before Zaukar took the stand.
In the affidavit attached to his application for post-conviction relief, Zaukar asserted: "I truthfully told the court that I did not wish to testify. Shortly after announcing my decision, my attorney told me to testify, but we never prepared for my testimony, nor was I aware of what I would be asked on cross examination[.]"
It is not clear from the record why defense counsel did not ask for a continuance once the anticipated defense witnesses became unavailable and Zaukar - who had not planned to testify - decided that he would, in fact, testify. Zaukar's assertion that he was not prepared to testify is at least reasonably corroborated by the fact that he initially told the court he did not intend to testify - and only changed his mind once the planned witnesses did not materialize.
At the same time, Zaukar provided no detail in his affidavit regarding what advice his attorney gave him with respect to his testimony, both prior to trial itself and in light of the unforeseen witness issues that arose during trial, nor what the two discussed in the brief recess before Zaukar stated that he had changed his mind and decided to testify. Zaukar's limited statements in his affidavit are insufficient to rebut the assumption that his attorney acted competently in these circumstances.
On appeal, Zaukar emphasizes the fact that he stated in his affidavit that his attorney "told" him to testify. To the extent Zaukar is arguing that his attorney coerced him into testifying, he has failed to provide sufficient detail regarding what actions his attorney allegedly took to coerce him, and we have previously reiterated that the superior court is "not obliged to presume the truth of [a] conclusory assertion about the legal effect of [an attorney's] conduct on [the defendant's] state of mind." LaBrake, 152 P.3d at 481; see Alpiak v. State, 2019 WL 5061380, at *2 n.5 (Alaska App. Oct. 9, 2019) (unpublished) (collecting cases).
Moreover, even assuming that Zaukar established a prima facie case of attorney incompetence, we agree with the superior court that he failed to establish a prima facie case of prejudice. Zaukar did not explain how his testimony would have been different if he either had more time to prepare or more counseling from his attorney, nor did he explain how this alternative testimony would have altered the jury's verdict. We note that, even if Zaukar's testimony - some of which was directly contradicted by the trial evidence - was entirely eliminated, the State's remaining evidence in this case was quite strong: Chief personally identified Zaukar (someone she already knew) as her attacker, her description of the intruder's clothing matched the sweatshirt held by Zaukar, and an officer contacted Zaukar soon after Chief's first 911 call less than two blocks away from her house. We are therefore not convinced that, even if Zaukar had demonstrated that his attorney acted incompetently, Zaukar suffered prejudice as a result.
See Risher, 523 P.2d at 425.
Conclusion
The order of the superior court dismissing Zaukar's application for postconviction relief is AFFIRMED.