MANNHEIMER, Judge.
Daniel R. Neal was convicted of first-degree assault and first-degree sexual assault, stemming from an attack on his wife, D.N., in November 1999. This Court affirmed Neal's convictions on direct appeal: Neal v. State, Alaska App. Memorandum Opinion No. 4731 (July 2, 2003), 2003 WL 21508844. Neal then filed a petition for post-conviction relief, alleging that he received ineffective assistance from the attorney who represented him during the trial proceedings. Following an evidentiary hearing, Superior Court Judge Larry R. Weeks denied Neal's petition for post-conviction relief, and Neal now appeals Judge Weeks's decision.
Having reviewed the post-conviction relief proceedings and the appellate arguments of the parties, we conclude that the record supports Judge Weeks's decision to deny Neal's application for post-conviction relief. To explain why we reach this conclusion, we will first summarize the pertinent aspects of the underlying criminal proceedings, and then we will address each of Neal's post-conviction relief claims.
There were two grand jury indictments against Neal, one for first-degree assault and another for first-degree sexual assault. The grand jury indicted Neal for first-degree assault based upon testimony that we described in our previous opinion:
Neal, 2003 WL 21508844 at *1. One week after this first indictment was issued, D.N. told the authorities that Neal had also sexually penetrated her during this attack. This led to a second grand jury indictment, this one charging Neal with first-degree sexual assault. Id. at *1-2.
Neal defended these charges by asserting that he had done nothing wrong. He claimed that his wife was the aggressor — that she had attacked him while she was drunk and under the influence of drugs. Neal asserted that all of D.N.'s injuries were either self-inflicted (i.e., injuries sustained when D.N. fell down or collided with various heavy objects and obstacles during her drunken attack) or were the result of Neal's justified efforts to defend himself from his wife's attack.
While Neal's case was awaiting trial, D.N. had a change of heart: she decided to recant her accusations. Judge Weeks described D.N.'s recantation in his written decision denying Neal's application for post-conviction relief:
Judge Weeks explained that, in her trial testimony, D.N. offered an explanation of her injuries that dovetailed with the defense version of events:
Confronted with this situation (i.e., with D.N. actively supporting the defense case), the State called Dr. Rosemary Piper to the stand after D.N. testified. Dr. Piper was an expert in the field of domestic violence. Although she disclaimed knowledge of the details of Neal's and D.N.'s relationship, or the events of the night in question, Piper offered background information about the dynamics of domestic violence in general, why a victim might choose to stay in a violent relationship, and why some victims might recant after they report the abuse to the authorities. (In our earlier decision, we held that the admission of Piper's testimony was not plain error. Neal, 2003 WL 21508844 at *8-9.)
The jury rejected the exculpatory version of events offered by Neal and his wife; instead, the jury convicted Neal of both first-degree assault and first-degree sexual assault. Judge Weeks (who was the trial judge) sentenced Neal to a composite term of 23 years' imprisonment with 13 years suspended — i.e., 10 years to serve.
In his petition for post-conviction relief, Neal asserted that his trial attorney, Patrick Conheady, failed to tell him that the State had offered to settle the case with a relatively lenient plea agreement: Neal would plead guilty to a lesser degree of assault, with a sentence of 5 years to serve, and the State would drop the sexual assault charge. In support of this claim, Neal submitted an affidavit in which he declared that he only found out about the State's offer after his trial was over, and after he obtained a new attorney. Neal further declared that, before trial, he had asked Conheady about the possibility of a plea agreement; according to Neal, Conheady told him that the prosecutor was unwilling to bargain the case.
Conheady responded to Neal's assertions in a video deposition, and his description of events differed substantially from Neal's. (Conheady's video deposition was later admitted as evidence at Neal's post-conviction relief trial: post-conviction relief actions are governed by the rules of civil procedure, and Conheady died before the trial was held. See Alaska Civil Rule 32(a)(3)(A).)
According to Conheady, he spoke with Neal (early in the case) about the possibility that the State would offer to drop the sexual assault charge in exchange for a guilty plea to the physical assault charge. Conheady further testified that, after he received the State's offer, he communicated the proposed plea bargain to Neal, and Neal rejected the offer. Conheady could not recall the details of his conversations with Neal, but Conheady's video deposition was held six years after Neal's trial, and Conheady was unable to review his trial file because one of Neal's later attorneys had lost the file.
Based on these competing versions of events, Judge Weeks conducted a trial on Neal's claim. However, at the trial, Neal declined to take the stand and offer testimony to support his claim.
Neal did present the testimony of an expert witness, attorney Sidney Billingslea, who offered the opinion that Conheady acted incompetently when he failed to communicate the State's offer to Neal, or when he failed to meaningfully discuss that offer with Neal. But the factual underpinnings of Billingslea's opinion all rested on the out-of-court assertions contained in Neal's affidavit, and Neal did not take the stand to reiterate those assertions.
Because Neal declined to take the stand at the post-conviction relief trial, Judge Weeks declared that he would completely ignore the assertions of fact contained in Neal's pre-trial affidavit. Judge Weeks ruled that "[t]here is no trial by affidavit in post-conviction relief proceedings", and that Neal's affidavit was entitled to no weight whatsoever.
Neal does not challenge this ruling on appeal.
Because Neal bore the burden of proof on these matters, his failure to take the stand or to offer the testimony of any other participant in these conversations is fatal to his claim.
Moreover, based on the testimony that was presented at the post-conviction relief trial, Judge Weeks concluded that Conheady truthfully described his dealings with Neal concerning the proposed plea bargain. Judge Weeks was the original trial judge, and he observed Neal throughout the underlying criminal proceedings. Based on his observations, Judge Weeks found that "Mr. Neal [was] adamant and unrepentant":
Judge Weeks concluded that Conheady's account of the plea bargain discussions was credible: the judge found that Conheady did tell Neal about the State's offer, but because Neal adamantly insisted that he was completely innocent, Neal was "unresponsive to offers to settle [the case on] reasonable terms". And, because a lawyer must accede to a client's wishes regarding whether to accept a proposed settlement (see Alaska Professional Conduct Rule 1.2(a)), Judge Weeks found that Conheady had no choice but to go to trial.
The record supports Judge Weeks's conclusion that Conheady offered the more credible version of events. Thus, for both of the reasons explained here — Neal's failure to offer affirmative evidence in support of his allegations, and Judge Weeks's conclusion that Conheady's description of events was credible — we uphold Judge Weeks's decision to reject Neal's claim relating to the State's proposed plea bargain.
In his application for post-conviction relief, Neal asserted that Conheady was incompetent for failing to seek jury instructions on lesser degrees of physical assault and sexual assault. At the post-conviction relief trial, Neal's expert (attorney Billingslea) testified that it was incompetent not to give the jury the option of returning verdicts on lesser offenses. But Judge Weeks disagreed: he concluded that, given the circumstances of Neal's case, Conheady could competently choose to confront the jury with an "all or nothing" decision.
As explained above, Neal took the position (and testified at trial) that he had done nothing wrong — that his wife was intoxicated and out of control, that she attacked him, that he was not to blame for her injuries, and that no sexual assault occurred. As also explained above, Neal's wife took the stand and corroborated this version of events. Given these circumstances, Conheady could reasonably conclude that if he asked for jury instructions on lesser offenses, and if he argued to the jury that convictions on lesser offenses might be appropriate, the jurors might view this as tantamount to an acknowledgement on Conheady's part that Neal and his wife could be lying about what happened. As Judge Weeks noted in his written decision, "lesser included offenses ... could have detracted from the credibility of [Neal's] `I didn't do anything wrong' defense."
Accordingly, we agree with Judge Weeks that Conheady could competently decide not to ask for jury instructions on lesser included offenses.
In his application for post-conviction relief, Neal asserted that Conheady was incompetent for failing to challenge the testimony Dr. Rosemary Piper, the expert witness who testified for the State concerning the dynamics of physically abusive relationships, why an abused spouse might stay in such a relationship, and why an abused spouse might recant earlier descriptions of the abuse.
In particular, Neal's petition for post-conviction relief alleged that Conheady should have objected to Piper's testimony because there was no showing that D.N. engaged in any conduct that could reasonably be viewed as "inconsistent with [her being an] abused woman" — and thus Piper's testimony had no particular relevance. Neal's petition further alleged that Conheady incompetently failed to require the State to lay a foundation for Piper's testimony by showing that her testimony met the test for the admission of scientific evidence under Daubert v. Merrell Dow Pharmaceuticals and State v. Coon.
Neal's first allegation of incompetence is close to frivolous. As we have explained, D.N. took the stand at Neal's trial and recanted her earlier accusations that Neal had assaulted her. Instead, D.N. claimed that the incident was entirely her fault, and that Neal was not to blame for her injuries. A reasonable person could view D.N.'s trial testimony as inconsistent with the State's assertion that she was an abused woman. Thus, Piper's explanation of why battered spouses might later recant their accusations was relevant evidence in Neal's case.
With regard to Neal's second allegation of incompetence, Judge Weeks concluded that a Daubert / Coon challenge to Piper's testimony would have failed. The judge noted that, in Russell v. State, 934 P.2d 1335, 1343 (Alaska App. 1997), this Court upheld the admission of similar testimony under similar circumstances (i.e., to explain why the victim of violence would stay with her abuser).
We additionally note a second reason why a Daubert / Coon objection to Piper's testimony might have failed. In Marron v. Stromstad, 123 P.3d 992, 1006-08 (Alaska 2005), the Alaska Supreme Court rejected the rule of Kumho Tire Co. v. Carmichael,
On appeal, Neal abandons his Daubert / Coon argument completely. He now asserts that it is "irrelevant" whether Piper's testimony was admissible under the Daubert / Coon test. Instead, Neal advances a new argument: he asserts that Piper's testimony had so little relevance to the facts of Neal's case, and was couched in such inflammatory terms, that Conheady should have asked the trial judge to exclude the testimony under Alaska Evidence Rule 403 — that is, on the ground that its potential for unfair prejudice outweighed its probative value.
But as Judge Weeks noted in his decision, a substantial portion of Piper's testimony was admissible — as an explanation of why D.N. might be motivated to give exculpatory testimony at Neal's trial. See Russell v. State.
Judge Weeks concluded that, to the extent portions of Piper's testimony might have been objectionable, those portions did not affect the verdict. Thus, Judge Weeks reasoned, Conheady could reasonably conclude that it would not be worthwhile to repeatedly object to portions of Piper's testimony.
Judge Weeks also concluded that Conheady was "canny" in his cross-examination of Piper — getting her to acknowledge that there are real cases where women physically abuse their male partners, and raising questions about the statistics that Piper was relying on. This Court, too, noted in our previous decision that Conheady's cross-examination of Piper appeared to be pointed and effective: Conheady got Piper to concede that a purported victim of domestic violence might recant their accusation because the accusation was, in fact, false. Piper further conceded that a purported victim might recant because they actually had no clear recollection of what happened and "may have been [operating] under some sort of alcoholic haze". Neal, 2003 WL 21508844 at *8.
In short, Judge Weeks concluded that Conheady's handling of Dr. Piper's testimony was within the range of competence for criminal defense attorneys, and this conclusion finds considerable support in the record.
In his brief, Neal relies on the testimony of his expert witness, attorney Sidney Billingslea, who believed that Conheady acted incompetently when he failed to object to Piper's testimony. Neal notes that Ms. Billingslea characterized Piper's testimony as mostly irrelevant and inflammatory. However, Neal can not prevail in this appeal merely because Judge Weeks and Billingslea had different views of the record. Nor is it enough for Neal to show that reasonable people might reach differing views regarding Piper's testimony and Conheady's tactics in dealing with that testimony. Rather, to prove ineffective assistance of counsel, Neal had to show that no competent criminal defense attorney would have handled Piper's testimony the way Conheady chose to handle it.
In his petition for post-conviction relief, Neal alleged that Conheady incompetently failed to investigate D.N.'s drug use. According to Neal, his wife abused prescription drugs, and he argued that D.N.'s drug use was relevant to explain D.N.'s behavior on the night in question. At the evidentiary hearing, Neal's expert witness, Billingslea, also suggested that D.N. might have been mentally incompetent (by reason of her drug use) when she testified at the two grand jury hearings in this case.
But as Judge Weeks noted in his decision, D.N.'s drug and alcohol abuse "was an important part of [Neal's] defense from the very beginning". As we have already explained, D.N. testified at trial that she attacked Neal (rather than vice-versa). As Judge Weeks noted in his decision, D.N. supported this self-accusation by asserting that she was intoxicated on both alcohol and cocaine on the night in question, and that she was "completely out of control".
Judge Weeks further found that Conheady knew (before trial) that D.N. would testify in this fashion. Moreover, as the State points out in its brief, D.N.'s testimony was replete with admissions that she used both prescription drugs and illicit drugs. Neal took the stand and also described his wife's longtime drug and alcohol use. Because both Neal and D.N. agreed (in their testimony) that D.N. attacked Neal while in a state of intoxication and mental confusion, it is unclear how much a difference it would have made if Conheady had gathered and presented additional evidence on this issue.
Moreover, Judge Weeks was never presented with any indication that Conheady failed to uncover important evidence relating to D.N.'s drug use or medical condition. It is true that Neal alleged that there was much more evidence available to substantiate D.N.'s abuse of drugs and alcohol, as well as evidence to suggest that this substance abuse led to a weakening of D.N.'s overall physical condition — thus potentially offering an alternative explanation for the severity of D.N.'s injuries. But Neal failed to produce any such evidence during the ensuing post-conviction relief litigation.
As Judge Weeks noted in his decision, Neal failed to present any new materials relating to D.N.'s drug and alcohol use or her medical history. All of the evidence presented during the post-conviction relief litigation was cumulative of the evidence at Neal's earlier criminal trial. Thus, Judge Weeks concluded, Neal failed to show any possible prejudice from Conheady's failure to further investigate these matters: "[Neal] must show that the [previously undiscovered] evidence would have affected the verdict. No new evidence was produced here on this issue[,] and no showing was made that it would have affected the verdict."
In this appeal, when Neal prepared his excerpt of record, he included some medical and pharmacy records that purportedly represented the kind of evidence that Conheady should have gathered and presented at Neal's trial. But as the State points out in its brief, these materials were never presented to the superior court during the litigation of Neal's petition for post-conviction relief. Neal's reply brief contains no discussion of this issue — an implicit concession that the State has correctly characterized the record, and that these materials were not presented to the superior court. Thus, it is improper for Neal to rely on these materials to attack Judge Weeks's decision.
With regard to the related issue of whether D.N.'s grand jury testimony should have been thrown out because she was purportedly rendered incompetent by her drug use, it was undisputed that D.N. was in the hospital, and under medication, when she gave her testimony to the first grand jury. But as Judge Weeks found, this medication did not appear to have affected D.N.'s competency as a witness: "[D.N.] seemed very competent at [both] the first and second grand juries[,] according to the records of those proceedings. ... A motion to dismiss [based] on [D.N.'s alleged] lack of competence would have been near frivolous."
Moreover, as Judge Weeks noted in his decision, Neal can not prevail on this claim (i.e., the claim that Conheady should have attacked the indictments based on the allegation that D.N. was incompetent to be a witness) unless Neal can also show that (1) the attack would have resulted in the invalidation of the indictment and (2) the State would have been unable to secure a re-indictment — i.e., that the defect in the grand jury proceedings could not have been cured by convening another grand jury to hear the case again.
As Judge Weeks noted in his decision, even Neal's expert witness, Sidney Billingslea, "agreed that the first indictment would stand [even] without [D.N.'s] testimony." And even if both indictments had been thrown out based on D.N.'s alleged drug intoxication at the time she testified, there is no reason to believe that the State could not have secured a new indictment on the same charges.
For the reasons explained here, the record supports Judge Weeks's rejection of all of Neal's claims for post-conviction relief. Accordingly, the judgement of the superior court is AFFIRMED.
