Taylor v. State

HANLEY

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, Anchorage, John Suddock, Judge.

Appearances: Whitney G. Glover, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, 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 Hanley, District Court Judge.

Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).

Judge HANLEY.

A jury convicted Jerry W. Taylor of eluding a police officer. Taylor filed an application for post-conviction relief, asserting that his trial attorney was ineffective for not obtaining an expert on eyewitness identification. The superior court dismissed Taylor's application for failing to state a prima facie case for relief. Taylor appeals this dismissal. We too conclude that Taylor failed to present a prima facie case for relief, so we affirm the dismissal.

AS 28.35.182(a).

Facts and proceedings

On September 22, 2005, at approximately 2:00 a.m., Anchorage Police Officer Kevin Armstrong was driving in his patrol car on the Seward Highway when a white Cadillac passed him at a speed of approximately ninety miles per hour. Officer Armstrong stopped the Cadillac and observed that the driver of the vehicle was an older black male wearing a baseball cap. Officer Armstrong asked the driver for his license and, after hesitating, the driver produced a license identifying the driver as Jerry Taylor. The officer confirmed that the photograph on the license matched the driver.

Armstrong took Taylor's license and walked back to his patrol car to perform a computer check. When Armstrong got back into his patrol car, Taylor fled. Armstrong pursued Taylor at a speed of about 100 miles per hour until a supervisor ordered him to stop the pursuit for safety reasons. Shortly thereafter, the police located the Cadillac at the address to which it was registered, but Taylor was not there.

The trial, and Taylor's initial appeal

The State charged Taylor with eluding a police officer in the first degree. Shortly before trial, Taylor's attorney moved to continue the trial in order to obtain an expert to testify about eyewitness identifications. The defense attorney stated that the issue of identification was crucial to Taylor's case, and that misidentification would be his sole defense. But the defense attorney told the court that his workload had prevented him from obtaining an expert. Superior Court Judge John Suddock denied the motion for a continuance, concluding that the attorney had made an insufficient showing to justify one.

AS 28.35.182(a).

At trial, Officer Armstrong testified that he was standing less than a foot away from Taylor when he identified him as the driver. He explained that, during his interaction with Taylor, he looked at the photograph on the driver's license that Taylor produced, he compared this photograph with the driver in front of him, and he confirmed that they were one and the same. Armstrong also identified Taylor in court: he testified that Taylor was "definitely" the person who drove away from the traffic stop. When the State presented Taylor's license to Armstrong, he testified that it was the same license Taylor had given him that night, and he identified Taylor again.

During cross-examination, Armstrong testified that he had worked a ten-hour shift and was tired when he stopped Taylor. He also acknowledged that he originally identified Taylor's vehicle as a Chrysler 300 rather than a Cadillac. And Armstrong described Taylor as having short hair in his police report, but Taylor was actually bald. Despite these discrepancies, the jury credited Armstrong's testimony and convicted Taylor.

After Taylor was convicted, he filed a direct appeal. In this appeal, Taylor argued that Judge Suddock committed error by declining to continue the trial so that the defense attorney could obtain an expert on eyewitness identification. However, this Court concluded that the judge had not abused his discretion in refusing to continue the trial because Taylor had failed to show that he would have been able to obtain an expert in a reasonable period of time, and that the expert would have aided Taylor's defense.

Taylor v. State, 2008 WL 3876585, at *1(Alaska App. Aug. 20, 2008) (unpublished).

Id. at *3.
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The post-conviction relief litigation

After Taylor's conviction was affirmed on direct appeal, Taylor filed an application for post-conviction relief, alleging that he was denied competent representation because his trial attorney failed to consult an expert on eyewitness identification. In support of his application, Taylor submitted a letter from his trial attorney in which the attorney indicated that his failure to call an expert on eyewitness identification was a mistake.

However, the trial attorney later submitted an affidavit in which he asserted that the evidence developed at trial obviated the need to obtain an expert. The defense attorney explained that Officer Armstrong was only a foot from Taylor when he compared the driver's license photograph to Taylor's face, that he got a clear look at both the license and Taylor, and that the officer was trained to compare license photographs to faces. In this context, the attorney explained, expert testimony on the potential flaws in eyewitness identification would not have helped.

The State filed a motion to dismiss Taylor's application on the ground that he failed to plead specific facts establishing a prima facie case. Specifically, the State argued that Taylor was required to provide an affidavit stating that an eyewitness expert would have given favorable testimony and that the testimony would have affected the outcome of the trial.

The trial court issued written notice that it intended to dismiss Taylor's application due to his failure to set forth a prima facie claim of ineffective assistance of counsel. In its order, the court pointed out that, given the analysis in the trial attorney's affidavit, the attorney's failure to consult with an expert on eyewitness testimony was "facially sensible." The court further noted that, based on the evidence presented at Taylor's trial, Taylor's case did not appear to be "the sort of case where eyewitness testimony about the inherent frailties of cross-racial identification would have been particularly useful."

The court notified Taylor that it intended to dismiss his application for post-conviction relief unless, within sixty days, Taylor offered affidavits or other evidence tending to show that expert testimony concerning eyewitness identification would have materially benefited his defense. When Taylor failed to supplement his application, the court dismissed it. Taylor now appeals this dismissal.

The current appeal

On appeal, Taylor argues that, even without supplementation, he presented a prima facie case that his trial attorney was ineffective because the attorney failed to obtain the testimony of an expert on eyewitness identification. But while Taylor may have presented the trial court with facts tending to show that his trial attorney was not diligent in contacting an expert witness before trial, these facts alone do not address the ultimate issue of whether Taylor set forth a claim that his trial attorney was incompetent. The fact that the defense attorney failed to actively pursue an expert does not indicate ineffective assistance unless it is also shown that an expert could have provided important exculpatory testimony — and, that by not calling an expert witness, the attorney failed to perform at least as well as a minimally competent attorney.

Taylor asserts that an expert on eyewitness identification could have provided testimony to undermine Officer Armstrong's identification of Taylor as the driver of the vehicle, by explaining to the jury various factors that potentially undermine the reliability of an eyewitness identification — factors such as unconscious racial bias in cross-racial identification, the short duration of a witness's contact with a suspect, the fact that the witness is under stress during the contact, and memory decay.

But Taylor failed to present the superior court with any evidence to support these assertions, even after the court notified Taylor that his application was deficient because it lacked any affidavit or other evidence explaining how expert testimony would have aided Taylor's case at trial. Thus, Taylor failed to present a prima facie case for relief.

Conclusion

The judgment of the superior court is AFFIRMED.