PETER v. STATE, A-9672 (Alaska App. 12-5-2007)

MANNHEIMER, Judge.

William J. Peter was convicted of first-degree murder in 2002 for shooting a man while under the influence of alcohol. We affirmed Peter's conviction on direct appeal: see Peter v. State, Alaska App. Memorandum Opinion No. 4877 (June 9, 2004), 2004 WL 1254089. Following our affirmance of his conviction, Peter filed a petition for post- conviction relief in which he argued that his trial attorney was ineffective because she failed to present the testimony of an expert witness on the effects of intoxication.

Responding to Peter's allegation, his trial attorney (Assistant Public Defender Marcia E. Holland) filed an affidavit explaining (1) the manner in which she chose to handle the issue of Peter's intoxication, and (2) why she decided that it would not be worthwhile to call an expert witness on this issue. Based on this affidavit, and given the absence of a countervailing offer of proof, the superior court concluded that Peter's petition failed to establish a prima facie case of attorney incompetence, and the court therefore dismissed the petition. Peter now appeals the superior court's decision.

The facts of Peter's underlying criminal case show that, on the day of the murder, Peter was socializing in his home with a friend, Ken Madros. After about twelve hours of drinking, Peter decided to go to sleep and became angry when Madros refused to leave his home. Peter then fired a shotgun at Madros, killing him.

Peter v. State, Memorandum Opinion No. 4877 at pp. 1-2; 2004 WL 1254089 at *1.

According to Holland's affidavit, she actively considered the ways in which evidence of Peter's intoxication might benefit Peter's defense to the murder charge. She eventually settled on the theory that Peter had intended to fire a warning shot with his shotgun (to get Madros to leave the house) — but, because of intoxication, Peter's aim had been bad, and he had accidentally hit his friend.

Holland explained that she had considered other potential uses of the intoxication evidence — in particular, the potential theory that Peter had been so intoxicated at the time of the shooting that he was incapable of forming an intent to kill (one of the elements of first-degree murder as defined in AS 11.41.100(a)(1)(B)). However, she rejected this approach for three reasons.

First, the evidence concerning Peter's precise level of intoxication was conflicting. There was no direct evidence of Peter's level of intoxication ( i.e., no breath or blood test). Rather, the only evidence of Peter's level of intoxication came from the observations of various witnesses who saw Peter around the time of the shooting. According to Holland's affidavit, the observations of these witnesses "ranged from those who described Mr. Peter as being very intoxicated . . . to others who described him as being able to walk, talk, perform normal tasks, and ask and answer questions."

Second, Holland hired two firearms experts to examine and evaluate the shotgun that Peter used in the homicide. These experts agreed that Peter's shotgun "could not have been accidentally fired" — "that it did not have an especially light trigger pull or any other defect that could have made it fire accidentally". In fact, because the shotgun was old and in disrepair, the weapon was difficult to fire unless "a person [was] familiar with the gun [and] understood [its] idiosyncracies". Because of these idiosyncracies, "it took more work [than normal] to prepare the gun for firing" — "a person had to go through more steps than usual to get the gun . . . ready . . . [to] be fired".

Based on the reports of these experts, Holland concluded that it would be very difficult to convince a jury that, even though Peter had sufficient mental awareness and coordination to fire the shotgun, he nevertheless was too intoxicated to form an intent to kill. According to her affidavit, Holland anticipated that the prosecutor would argue that if the act of firing the shotgun required Peter to perform a series of discrete steps, each entailing conscious thought and physical coordination, then the fact that Peter was able to fire the shotgun demonstrated that he had sufficient mental capacity to form an intent to kill.

Third, Holland was concerned that if Peter took the stand and testified that he was too intoxicated to form an intent to kill, the trial judge would allow the State to counter this testimony with evidence of a past episode in which Peter sat on his porch and took shots at people passing by, as well as evidence of another incident in which Peter threatened to shoot a visitor to his house. When Holland discussed this problem with Peter, both of them agreed that it would be better if Peter did not take the stand.

Based on these considerations, Holland decided not to argue that Peter had been too intoxicated to form an intent to kill. Rather, she decided to argue that Peter had intended to fire a warning shot, either toward the ceiling or the door — and that, because Peter was so intoxicated, he either misgauged or lost control over the direction of the barrel, so that the blast struck Madros.

She further decided that she did not need the testimony of a medical expert to pursue or explain this theory of how Peter's intoxication could have contributed to the homicide.

After Holland filed this affidavit, the State asked the superior court to dismiss Peter's petition for failure to state a prima facie case. The State argued (1) that Holland had provided a plausible tactical basis for her decision not to hire a medical expert, (2) that an attorney's tactical decisions are presumed to be competent, and (3) that Peter had offered nothing to suggest that Holland's decision fell below the range of practice expected of criminal law practitioners.

Peter responded to the State's motion by arguing that, even though Holland might have chosen a reasonable theory of defense, it was nevertheless incompetent of her to fail to present expert testimony to support that defense — expert testimony "on whether a toxic level of alcohol in [Peter's] bloodstream might have affected his aim . . . [or] his hand-eye coordination".

Superior Court Judge Mark I. Wood agreed with the State that Peter had failed to present a prima facie case of attorney incompetence. The propriety of that decision is now before us on appeal.

As just explained, Peter does not dispute that Holland adopted a reasonable tactical approach to his case, in terms of the theory of defense that would be presented to the jury. He concedes that "it made some tactical sense to approach the facts of the case in the manner that [Holland] chose". However, Peter argues that expert medical testimony was needed to support this chosen theory of defense.

In his brief to this Court, Peter concedes that "it is within the sphere of common knowledge that hand-eye coordination would be affected [by intoxication] to some degree". However, he again argues (as he did in the superior court) that "the interrelationship between intoxication and specific loss of motor control could not be satisfactorily proven by lay testimony alone".

In order to establish ineffective assistance of counsel, a defendant must prove that their attorney's handling of the case was so deficient (in one or more respects) that no competent criminal law practitioner would have handled the case that way. Thus, if Peter was to survive a motion to dismiss his petition for failure to state a prima facie case, Peter was obliged to present some evidence to support the proposition that no competent defense attorney would have concluded (as Ms. Holland did) that Peter's defense could be satisfactorily presented without expert medical testimony concerning the effects of intoxication on motor control and eye-hand coordination.

See, e.g., Allen v. State, 153 P.3d 1019, 1027 (Alaska App. 2007); LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007).

In his pleadings to the superior court, Peter conclusorily asserted that this was true ( i.e., that no competent attorney would have failed to procure expert testimony to support this defense), but he offered no evidence to support this assertion. For example, Peter offered no affidavit or testimony from another criminal law practitioner asserting that Holland's decision was incompetent. Nor did Peter offer an affidavit or testimony from a medical expert stating it would be impossible for jurors to sufficiently appreciate the effect of intoxication on a person's motor control or eye-hand coordination unless the jurors heard expert testimony on this issue.

Rather than making offers of proof along these lines, Peter confined himself to conclusorily asserting that Holland's decision was incompetent. This was insufficient to satisfy his burden of presenting a prima facie case.

As this Court recently explained in LaBrake v. State, 152 P.3d 474 (Alaska App. 2007), when the superior court evaluates a petition for post-conviction relief to see if it presents a prima facie case for relief, the court is obliged to presume the truth of all of the petitioner's well-pleaded assertions of fact. But this presumption does not extend to the petitioner's assertions "concerning the law, or concerning mixed questions of law and fact ( e.g., . . . assertions concerning the legal effect or categorization of the underlying occurrences), nor does the presumption apply to [the petitioner's] conclusory assertions concerning the ultimate facts to be decided." LaBrake, 152 P.2d at 481.

In Peter's case, the superior court was not obliged to presume the truth of Peter's unsupported assertion that no competent criminal defense attorney would have presented Peter's case without calling an expert witness on the issue of intoxication. Rather, it was Peter's duty to offer some evidence on this question — some evidence which, if believed, would support the conclusion that Holland's handling of this matter fell below the minimum standard of practice required of criminal defense attorneys.

Because Peter failed to meet this burden of pleading, the superior court correctly granted the State's motion to dismiss Peter's petition for post-conviction relief. Accordingly, the judgement of the superior court is AFFIRMED.