WELTON v. STATENo. 5703, Court of Appeals No. A-10237.

SUZETTE M. WELTON, Appellant,
v.
STATE OF ALASKA, Appellee.

Court of Appeals of Alaska.
May 25, 2011.
Beth G. L. Trimmer, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

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

MANNHEIMER, Judge.

Suzette M. Welton was convicted of one count of first-degree murder, one count of attempted murder, and one count of first-degree arson, based on evidence that she intentionally set fire to her house while her two teenage sons were asleep. One of Welton's sons awoke and escaped the fire, but the other son died. We affirmed Welton's convictions on direct appeal: Welton v. State, Alaska App. Memorandum Opinion No. 4911 (August 18, 2004); 2004 WL 1837692. The evidence against Welton is summarized in that earlier opinion.

A few months after we affirmed Welton's convictions, Welton filed a petition for post-conviction relief. For present purposes, Welton raised two primary claims in that petition.

First, Welton claimed that her two trial attorneys willfully failed to honor her right to testify in her own defense. According to Welton's affidavit, when she informed one of her attorneys that she wished to take the stand at her trial, the attorney told her "no", without giving any explanation. According to a supplemental affidavit filed by Welton's post-conviction relief attorney, Welton's two trial attorneys openly tried to dissuade her from testifying, and they incompetently failed to make any efforts to prepare her for taking the stand (such as outlining her anticipated testimony, or subjecting her to a mock direct and cross-examination).

Second, Welton claimed that her trial attorneys incompetently failed to cross-examine Welton's surviving son about his use of sleeping pills. At Welton's trial, the State alleged that Welton had surreptitiously administered sleeping pills to her sons (in their soft drinks) before she set the fire. In her petition for post-conviction relief, Welton asserted that her defense attorneys overlooked an avenue of cross-examination that would have suggested that Welton's son abused sleeping pills (and, thus, that he may have voluntarily ingested the sleeping pills himself).

Superior Court Judge Eric Smith held an evidentiary hearing on these two claims. Based on the evidence presented, Judge Smith found that neither claim had merit. He therefore denied Welton's petition for post-conviction relief.

Welton now appeals the superior court's decision. For the reasons explained here, we conclude that Judge Smith could justifiably find that Welton's claims lacked merit. We therefore affirm the judgement of the superior court.

Underlying facts: The differing testimony given at the evidentiary hearing regarding Welton's claim that her attorneys refused to let her testify at her trial, or that they refused to help Welton prepare to testify

At the evidentiary hearing, Welton testified that, both before her trial and during the trial itself, she repeatedly informed her two trial attorneys — Gregory Heath and George Davenport — that she wished to take the stand. According to Welton, her attorneys generally refused to respond to her; instead, they would change the subject. Welton also testified that, on one occasion, her attorneys actively told her that they would not discuss this matter with her until after they heard the State's case at trial.

Somewhat contradictorily, Welton also testified that, in at least one conversation before her trial, her attorneys expressly instructed her not to testify.

Welton conceded that her attorneys told her that she could testify, but she declared that her attorneys never explained to her that she had a constitutional right to testify. And Welton added that her attorneys made absolutely no effort to prepare her to testify.

Welton acknowledged that, at her trial, when the trial judge asked her personally if she wished to testify, Welton answered "no". Welton testified that she gave this answer because one of her attorneys, Gregory Heath, instructed her to say "no" in answer to the judge's inquiry. Welton testified that she had no idea that she had the right to say "yes" — i.e., the right to take the stand even though her attorneys were against it.

Various members of Welton's defense team testified at the evidentiary hearing and gave a differing account of this matter.

Bruce Johnson, who worked as an investigator for the Public Defender Agency at the time of Welton's trial, testified that he was the lead investigator for Welton's defense team.

According to Johnson, he participated in "numerous conversations" with Welton about whether she should testify at her trial. Johnson stated that Welton was informed of her legal right to testify, and he explained that he personally tells all of his clients that it is their decision whether to testify, regardless of what he or the defense attorneys might advise them.

Johnson declared Welton herself made the decision not to testify. He flatly denied that the defense attorneys had bullied or coerced Welton into making that decision.

Johnson explained that it was the "general consensus" that Welton should not take the stand, because there was "a lot of ... information ... floating out there ... that she'd have a hard time explaining". In particular, the State was prepared to present evidence of two other fires that occurred at Welton's residence on the Kenai Peninsula, as well as an unexplained fire that broke out at her boyfriend's house.

Johnson's assistant investigator, Michelle Lutz, also testified. Lutz testified that she had frequent discussions with Welton as the defense team prepared for trial — "at the minimum, three or four times a month". Lutz also stated that the defense team (i.e., the two attorneys and the two investigators) had repeated conversations with Welton about whether she would take the stand. Lutz denied that the two defense attorneys "bullied" Welton into not testifying. Rather, Welton knew that she had the right to testify, and she went back and forth on this issue during the months leading up to her trial. Welton finally acceded to her attorneys' advice and decided not to testify.

George Davenport, one of Welton's two trial attorneys, stated that he had no specific recollection of advising Welton of her right to testify, but Davenport also stated that he knew he would have done so "as a matter of practice".

Davenport conceded that he had no specific recollection of drawing up a list of questions that Welton might be asked if she took the stand, or of subjecting Welton to a mock direct or cross-examination. However, Davenport explained that the process of preparing a criminal case for trial normally includes "giv[ing] [the defendant] a picture of what's going to happen at trial" — by "talk[ing] about the different witnesses and the different evidence", and then asking the defendant how they would respond to the State's evidence. According to Davenport, this type of trial preparation "is a way of practicing with [the defendant] the kind of questions that would come up if [they] were to testify."

Davenport stated that Welton made the decision not to testify. Davenport acknowledged that, in his opinion, it would have been "horrendous" for Welton to testify — but he declared that "that was up to her".

Gregory Heath, who was the other defense attorney assigned to Welton's case, testified that he spoke with Welton constantly ("hundreds" of times) about her case. In particular, Heath said that he spoke to Welton about her right to testify at trial. Heath could not remember the content of their particular conversations on this issue, but Heath was sure that Welton understood she had a right to take the stand. Heath stated that the defense team talked with Welton about whether she should take the stand, and they discussed the related possibility that her testimony might open the door to evidence of other wrongful acts under Alaska Evidence Rule 404(b) — specifically, evidence that fires had occurred at Welton's previous residences.

Heath testified that he "probably" advised Welton concerning the types of questions that she could expect the prosecutor to ask on cross-examination if she took the stand. Heath also stated that, although he advised Welton not to take the stand, it was Welton who made the decision not to testify.

Heath denied that he had bullied or coerced Welton into making this decision, and Heath also stated that, to his knowledge, his co-counsel Davenport had not engaged in any bullying or coercion either.

Because Welton decided not to testify, Heath and the other members of the defense team did not prepare her for direct examination. But Heath added that, if Welton had changed her mind in the middle of trial, he would have sought a recess or a continuance of the trial so that the defense team could "spen[d] some time developing her testimony".

In addition to the foregoing testimony, Judge Smith also had access to the record of Welton's criminal trial — and, in particular, the trial judge's two explanations of Welton's right to testify.

Prior to the opening statements at Welton's trial, the trial judge engaged in a lengthy recitation to Welton concerning her right to testify. The trial judge made it clear that Welton had the right to decide whether she wanted to testify, and that no one could force her to decide either way. The trial judge expressly advised Welton that, "throughout this trial, that's one of the things you ought to [keep in mind]: `Should I testify? Should I not?' And you should discuss that thoroughly with your lawyers before you make your final decision." At that time, Welton indicated to the trial judge that she understood what he had told her, and that she did not have any questions about her right to testify.

Later, at the end of the defense case, when it appeared that Welton was not going to take the stand, the trial judge complied with the LaVigne rule1 by engaging in a lengthy inquiry to determine whether Welton had personally made the decision not to testify, and that this decision was made knowingly and voluntarily:

The Trial Judge: Ms. Welton, as I told you at the start of the trial, you have the right to make your own decision whether or not to testify as a witness in this case. Your lawyer advised me at the bench ... when he came up here a couple of minutes ago that ... he didn't have any more witnesses to call on your behalf, and that you did not wish to testify. Welton: Yes, Your Honor, that is true. The Trial Judge: Okay. I want to remind you that you are the one to make that decision. You have the absolute right to testify if you personally wish to, you understand? Welton: Yes. The Trial Judge: No one can force you not to testify, if that's what you want to do. Has anyone — well, first of all, have you discussed this decision not to testify thoroughly with your lawyers? Welton: Yes, [with] Mr. Heath. The Trial Judge: Has anybody put any pressure on you not to testify? Welton: No, sir. The Trial Judge: Has anybody made any promises to you to persuade you not to testify? Welton: No, sir. The Trial Judge: Is the decision not to testify solely your own personal voluntary decision? Welton: It is mine, sir. . . . The Trial Judge: Okay. Do you have any questions about your right to testify, or not to? Or your right, for that matter, to be the one that makes the decision about testifying? Welton: No, sir. The Trial Judge: [And] this is what you want? You don't want to testify? Welton: I do not, sir. The Trial Judge: Okay. I'll accept the defendant's decision not to testify as free and voluntary, and after full consultation with counsel. She's obviously made the decision herself; it's written all over her face. No one's forced her.

During the argument on Welton's petition for post-conviction relief, Judge Smith discussed the above-quoted LaVigne inquiry. During that discussion, Judge Smith noted that the trial judge conducted a "pretty thorough LaVigne inquiry", and that Welton's answers to the trial judge's inquiry appeared to undercut Welton's testimony at the post-conviction relief evidentiary hearing. Welton's post-conviction relief attorney conceded that Judge Smith's characterization of the trial court record was accurate:

The Court: [The trial judge's] questions [to Ms. Welton] were predicated on the fact that she had [the] right [to testify]. That's what [the trial judge] said to her. He said, "You realize ... " — I mean, we can ... do a reading, but he essentially said to her, ... Welton's post-conviction relief attorney: No, thank you. The Court: ... "You have the right to testify. It's your right." [The trial judge] did tell her that. And [he also] told her that [same thing] when the trial started. ... It may be that [Ms. Welton] heard it differently, through a filter or some-thing, but I think [it would] be hard to say — I mean, ... it was [the trial judge's] responsibility to make sure she knew what she was giving up [if she did not take the stand]. And, you know, he did a pretty thorough LaVigne inquiry. So I'm having some trouble with [Ms. Welton's testimony that], "I was told to say `no', so I said `no' " — because those weren't the questions she was being asked [by the trial judge]. [The trial judge's questions] were much more detailed than that. Welton's post-conviction relief attorney: I'm not going to argue with what the transcript says. ... My point [of] focus [is] on what Ms. Welton gleaned from [her] conversations [with her attorneys]. And [what she gleaned] was that her attorneys did not want her to testify, and it was no longer — if her attorneys felt so strongly, [then] it was no longer her right. ... She relied on the advice of her attorneys, and ... her belief that she had the right to testify diminished as she relied on the advice of her attorneys. The Court: I understand your argument. Okay.

Judge Smith's ruling on Welton's petition for post-conviction relief

Based on the evidence described in the preceding section of this opinion, Judge Smith concluded that the testimony of the four members of the defense team (Heath, Davenport, Johnson, and Lutz) was "utterly credible", and that Welton's testimony was not. The judge found that the defense team did, indeed, inform Welton that she had a constitutional right to testify, and that it was her decision whether to exercise this right. The judge further found that Welton made this decision herself, after talking with her attorneys.

As Judge Smith explained:

It strains credulity that such experienced and competent attorneys and investigators would fail to mention such a basic right to their client, particularly one charged with murder [in the first degree]. It also is virtually impossible to believe either that they would refuse to talk to Ms. Welton about the matter or that they would fail to go into some detail about the issue, particularly if she was as insistent about testifying as she claims. . . . This conclusion ... is buttressed by [the fact that Welton's trial judge] specifically and extensively discussed Ms. Welton's right to testify with her ..., both at the beginning of the trial and [later] when he was informed that she had decided not to testify. . . . [Finally,] with all due respect to Ms. Welton, the court found her testimony utterly not credible. This finding is based [in part] on her demeanor, which was not conducive to a finding of truthful or at least accurate testimony, [and also in part on] the utter incredibility of her assertion that no attorney talked to her about such a fundamental matter ... .

Welton's claim that the superior court violated her privilege against self-incrimination when the court directed her to answer the prosecutor's questions about what her trial testimony would have been

As we have already noted, Welton took the stand at the post-conviction relief evidentiary hearing. She declared that she had wanted to testify at her criminal trial, but she had not understood that she had a constitutional right to testify. Welton also stated that her two defense attorneys refused to discuss this matter with her — except to instruct her not to testify, and to tell the trial judge (during the mid-trial LaVigne inquiry) that she did not wish to testify.

When the prosecutor cross-examined Welton, he asked Welton to describe the testimony she would have given, had she taken the stand at her trial. Welton's post-conviction relief attorney objected to the prosecutor's questions, arguing that it was irrelevant what Welton's trial testimony would have been. The prosecutor responded that it was Welton's burden, in the post-conviction relief litigation, to prove not only that her rights had been violated (here, the alleged violation of her right to testify in her own behalf), but also that she was prejudiced by this violation of rights.

Judge Smith tentatively ruled that, if Welton was wrongfully deprived of her right to testify, this would be "structural" error, and Welton would automatically be entitled to a new trial, regardless of whether she suffered identifiable prejudice from not being able to testify. Thus, Judge Smith agreed with Welton's attorney that the content of Welton's proposed trial testimony was irrelevant.

However, Judge Smith had doubts as to whether this was the correct legal ruling. So, to avoid a later appellate remand and a new evidentiary hearing, the judge decided to let the prosecutor ask the questions (and to make Welton answer those questions) "in the event that [he was] wrong on the law".

Welton then described the testimony she would have given, had she taken the stand at her criminal trial. Specifically, Welton stated that she would have testified that she was at work on September 12, 2000, and that therefore she could not have been the person who purchased the "Sleepinal" (the sleeping agent) and the gasoline can on that date. Welton also offered potential answers to questions that might have been posed to her on cross-examination, had she taken the stand at her trial.

In this appeal, Welton claims that Judge Smith violated her right against self-incrimination under the federal and state constitutions when he directed her to answer the prosecutor's questions regarding what her trial testimony would have been, had she taken the stand at her trial.

This claim is not preserved for appeal. Welton's attorney made no such objection in the superior court. Rather, as we have described, Welton's attorney objected on the ground that Welton's answers to the prosecutor's questions would be irrelevant — under the theory that Welton did not have to demonstrate prejudice, once she proved that she was wrongfully denied her right to take the stand at her trial.

As we have explained, Judge Smith adopted this "structural error" theory, and he therefore concluded that Welton's answers to the prosecutor's questions would indeed be irrelevant. However, Judge Smith was sufficiently uncertain about this legal conclusion that he ordered Welton to answer the questions, just in case he was wrong.

Judge Smith was indeed wrong on this point. When a defendant claims that they were not apprised of, or were wrongfully denied, their constitutional right to testify, the defendant must show that they "would have offered relevant testimony had [they] been allowed to testify at [their] trial." LaVigne v. State, 812 P.2d 217, 221 (Alaska 1991); Weist v. Anchorage, 929 P.2d 668, 669 (Alaska App. 1996); Knix v. State, 922 P.2d 913, 919 n. 8 (Alaska App. 1996).

It was therefore proper for the prosecutor to inquire as to what testimony Welton would have given, had she taken the stand. Unless Welton showed that she had relevant testimony to offer, her claim for post-conviction relief would fail as a matter of law.

We are not saying that Welton had no ability to assert the privilege against self-incrimination when she was confronted with the prosecutor's questions. But if she had asserted the privilege and had refused to answer, her claim for post-conviction relief would have lacked this crucial element.

Moreover, Welton did not assert her privilege against self-incrimination. There is no violation of the privilege when a witness, confronted with questions in open court, fails to assert the privilege and instead answers the questions. Minnesota v. Murphy, 465 U.S. 420, 429; 104 S.Ct. 1136, 1143; 79 L.Ed.2d 409 (1984); State v. Rivers, 146 P.3d 999, 1003 (Alaska App. 2006).

For these reasons, we reject Welton's claim that the superior court violated her privilege against self-incrimination.

Welton's claim that the superior court committed error by ordering her to answer the prosecutor's questions, because her answers were irrelevant

Welton also argues that Judge Smith should not have ordered her to answer the prosecutor's questions because her answers were irrelevant — and that the judge later compounded this error by relying, in part, on Welton's answers when he assessed the credibility of Welton's testimony at the post-conviction relief hearing.

But as we explained in the preceding section of this opinion, Welton's answers to the prosecutor's questions were relevant. Indeed, if Welton was to succeed in her petition for post-conviction relief, it was essential for Welton to describe what her trial testimony would have been — because a defendant who claims LaVigne error must show that they "would have offered relevant testimony had [they] been allowed to testify at [their] trial." LaVigne, 812 P.2d at 221.

Welton's claim that Judge Smith committed error by relying on the testimony of the two defense investigators (Bruce Johnson and Michelle Lutz) that they apprised Welton of her right to testify at trial, and that they discussed with her the potential reasons why she might or might not wish to exercise this right

As we have explained, Welton sought post-conviction relief on the theory that she was denied the assistance of counsel because her attorneys refused to advise her about her constitutional right to testify in her own behalf, because her attorneys refused to listen to her when she told them that she did wish to testify at her trial, and because her attorneys refused to prepare her for testifying.

As we have also explained, when the superior court held the evidentiary hearing on this claim, four people offered testimony that generally contradicted Welton's position. These four people were the members of Welton's defense team: her two trial attorneys (Heath and Davenport), and the two investigators assisting them (Johnson and Lutz). In Judge Smith's findings of fact, he relied on the testimony of all four when he concluded that Welton had been informed of her constitutional right to testify, that Welton had been meaningfully counseled about whether she should exercise this right, and that Welton herself decided that she should not testify.

On appeal, Welton argues that it was error for Judge Smith to rely on the testimony of the two defense investigators. Welton argues that, because Johnson and Lutz were not licensed to practice law, and because her claim for post-conviction relief rested on an alleged denial of the assistance of counsel, it was irrelevant whether Welton had any conversations with Johnson or Lutz concerning her right to testify, and concerning the pros and cons of exercising that right.

According to Welton's brief, "any conversations Mr. Johnson [or Ms. Lutz] had with Ms. Welton regarding her right to testify do not amount to meaningful consultation with her counsel" — and, thus, Judge Smith committed error when he "[placed] reliance upon Mr. Johnson's [or Ms. Lutz's] conversations with Ms. Welton... to support the finding that Ms. Welton had meaningful consultation with counsel regarding her right to testify".

We reject this argument for several reasons.

First, this argument was not presented to the superior court. Welton's post-conviction relief attorney did not object to Johnson's and Lutz's testimony on these matters. Indeed, it was Welton's attorney who called Johnson to the stand and elicited his testimony. Welton's attorney never suggested that Johnson's (or Lutz's) testimony was irrelevant to Welton's claim for post-conviction relief, or that it would be error for Judge Smith to rely on this testimony when making his decision.

Second, Welton's appellate claim is significantly different from the claim she presented to the superior court.

In the superior court, even though Welton framed her argument in terms of "assistance of counsel" (or, more precisely, a lack of assistance of counsel), Welton's underlying contention was that no one explained that she had a constitutional right to take the stand at her trial, that no one listened to her repeated protestations that she wished to testify, and that no one advised her concerning the pros and cons of taking the stand. But now, on appeal, Welton is apparently arguing that even if all of these contentions are false — that is, even if Welton did understand that she had a constitutional right to testify, even if members of the defense team did listen to her when she stated that she wanted to testify, and even if members of the defense team did engage in substantive discussions with Welton about whether she should testify — Welton should still be granted post-conviction relief because two of the people who advised and assisted Welton were not licensed to practice law.

This appellate claim is materially different from Welton's trial court claim — so different that Welton should not be allowed to raise it for the first time on appeal.

Third, even if Johnson and Lutz played a significant role in apprising Welton of her right to testify, and in discussing the pros and cons of Welton's taking the stand, this would not (of itself) contravene or infringe Welton's right to the assistance of counsel. The testimony at the evidentiary hearing shows that Johnson and Lutz were not simply "investigators" in the sense that they interviewed people, unearthed facts, and reported to the two trial attorneys. Rather, Johnson and Lutz functioned in many ways as paralegals. They met with Welton on numerous occasions, they discussed the case with her, and they explained to Welton that she would have to decide whether to exercise her right to testify.

On the face of it, none of these activities defeated Welton's right to the assistance of counsel. As the State notes in its brief, the second paragraph of the Comment to Alaska Professional Conduct Rule 5.5 — the rule that addresses the unauthorized practice of law — expressly states that this rule "does not prohibit a lawyer from employing the services of paralegals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work."

It is true, as Welton notes in her reply brief, that paralegals are barred from independently giving legal advice to clients. See the American Bar Association's Ethics Opinion No. 316 (1967). The ABA's Model Guidelines for the Utilization of Paralegal Services (2004) echoes this theme, declaring that clients "are entitled to their lawyers' professional judgment and opinion." Id. at 6 (emphasis added). Nevertheless, the Model Guidelines declares that paralegals may properly "communicate a lawyer's legal advice to a client" (as long as they do not "interpret or expand on that advice"), and that paralegals may also properly participate in "preparing the lawyer's legal opinion" — that is, participate in the process of formulating the lawyer's legal advice, so long as the lawyer makes the final assessment of what that advice should be. Id. at 6-7.

(We note that the law clerks working for the trial courts and appellate courts of this State similarly participate in the formulation of court decisions, even though many of these law clerks are not authorized to practice law.)

The testimony at the evidentiary hearing strongly suggests that Johnson and Lutz functioned within these boundaries, and that they were always under the ultimate supervision of the two attorneys when they worked on Welton's case. Welton argues that the evidentiary hearing testimony might be interpreted to suggest that Johnson and Lutz exceeded their proper role, and that they gave independent legal advice to Welton. But Judge Smith was never asked to resolve this issue — because Welton never raised this objection during the superior court litigation.

Fourth, even assuming that Johnson and Lutz overstepped their proper role when advising Welton about whether she should testify, Judge Smith found that Welton's attorneys also advised and assisted Welton in these matters, and the record supports the judge's findings.

As we quoted earlier, Judge Smith declared that it "strain[ed] credulity that such experienced and competent attorneys and investigators would fail to mention such a basic right to their client, particularly one charged with murder [in the first degree]." Judge Smith also found it "virtually impossible to believe either that they would refuse to talk to Ms. Welton about the matter or that they would fail to go into some detail about the issue, particularly if she was as insistent about testifying as she claims."

The record supports these findings — in particular, the finding that Welton's trial attorneys, Davenport and Heath, informed her of her right to testify and her right to decide whether to testify. We have already described, in some detail, the testimony given by Davenport and Heath at the evidentiary hearing. Based on that testimony, Judge Smith could reasonably conclude that both the attorneys and the investigators advised Welton on these matters.

For all of these reasons, we reject Welton's argument that Judge Smith committed error by relying on the testimony given by Johnson and Lutz.

We further conclude that the superior court record supports Judge Smith's ultimate conclusions — that Welton understood her constitutional right to testify, that her attorneys engaged in substantive discussions with her about whether she should testify, and that Welton ultimately made an informed decision not to take the stand.

Welton's claim that her trial attorneys incompetently failed to cross-examine Welton's son Jeremiah about the possibility that he abused sleeping pills

As we explained early in this opinion, one of the State's primary assertions at Welton's criminal trial was that Welton surreptitiously administered sleeping pills to her sons (in their soft drinks) before she set fire to the residence.

In her petition for post-conviction relief, Welton asserted that when her defense attorneys cross-examined her surviving son, Jeremiah, the attorneys incompetently failed to cross-examine Jeremiah with a statement he made to a police officer during a pre-trial interview — a statement in which Jeremiah admitted using sleeping pills to help him sleep when he had soccer practice.

During the prosecutor's direct examination of Jeremiah, the prosecutor asked Jeremiah about his use of sleeping pills:

Prosecutor: Now, have you ever abused sleeping aids? Jeremiah: Nope. Prosecutor: Have you ever tried sleeping aids? Jeremiah: No. Prosecutor: Is it popular for kids — have you ever heard of kids using or abusing sleeping aids? Jeremiah: No, not at all. Prosecutor: Such as Sleepinal [or] Sominex? Jeremiah: No.

In Jeremiah's pre-trial police interview, he made a statement that was potentially inconsistent with the above-quoted testimony — a statement acknowledging that he used sleeping pills when he had soccer practice:

Officer: Do you know [of your mother] taking sleeping pills? Jeremiah: Nope. I don't know anything of it. She'd never take sleeping pills. She tells me and Sam — `cause I remember, I used to take sleeping pills when I had soccer practice or something like that, and she said it's bad, and she would never take sleeping pills.

In her petition for post-conviction relief, Welton asserted that it was crucial for her attorneys to cross-examination Jeremiah about this prior statement. Welton argued that this proposed cross-examination would have shown that Jeremiah was lying about his use of sleeping pills when he responded to the prosecutor's question during direct examination — thus suggesting that Jeremiah might have voluntarily ingested the sleeping pills himself on the night of the fire.

Welton concedes that her trial attorneys affirmatively tried to establish that Jeremiah used drugs recreationally, and that his denials of drug usage were not credible. Judge Smith, in his written decision resolving Welton's petition for post-conviction relief, noted that Welton's attorneys "went into Jeremiah's drug use in great detail on cross-examination", and that the defense attorneys "quoted extensively from [Jeremiah's] emails in which he said that he had taken a wide variety of other drugs, including PCP".

With respect to the particular issue of Jeremiah's use of sleeping pills, the defense attorneys did not cross-examine Jeremiah by confronting him with his statement to the police officer. But later, during the defense case, Welton's attorneys presented the testimony of one of Jeremiah's peers, Luke Dubber. Dubber testified that both Jeremiah and his brother Samuel used sleeping pills, and that he had personally seen Jeremiah take sleeping pills.

At the post-conviction relief evidentiary hearing, attorney Heath explained that Dubber was a "secret" witness — i.e., a witness who had not been interviewed by the State. Heath testified that he purposely chose not to cross-examine Jeremiah about his use of sleeping pills (as opposed to other drugs) because he did not want to flag this issue for the prosecutor before the defense presented its case.

As Judge Smith recognized, one might reasonably argue that it would be more powerful to present independent evidence of Jeremiah's use of sleeping pills, through the testimony of a live witness, than to cross-examine Jeremiah. For this reason, Judge Smith concluded that Welton's attorneys had a valid tactical reason not to cross-examine Jeremiah on this issue. Judge Smith further concluded that the defense attorneys presented a considerable amount of evidence that Jeremiah used drugs recreationally, including the many emails that contradicted his trial testimony. For these reasons, Judge Smith found that Welton had failed to meet her burden of proving that her attorneys' handling of this issue was incompetent.

In her brief on appeal, Welton points out that her trial attorneys testified that they did not recall knowing about Jeremiah's statement to the police officer. Judge Smith, in his written decision, concluded that "it [was] likely that [the defense team] simply overlooked [this prior statement] in the thousands of pages of discovery that had been provided [by the State]."

Based on the fact that her defense attorneys were apparently ignorant of the prior statement, Welton argues that her attorneys could not possibly have made a tactical decision not to confront Jeremiah with this statement. Rather, Welton asserts, this was a mistake made out of ignorance rather than strategy.

This argument misses the underlying point of attorney Heath's testimony on this matter. Heath testified that he did not wish to cross-examine Jeremiah about his use of sleeping pills because he (Heath) was keeping Dubber's testimony in reserve, and he did not want to alert the prosecutor to this issue. This was obviously a tactical decision. The real question is whether a competent attorney could have come to this decision, or kept to this decision, after being apprised of Jeremiah's prior statement to the police officer.

Judge Smith concluded that, despite the existence of this prior statement, Heath's approach to this issue remained competent. The record supports that conclusion.

Conclusion

For the reasons explained here, we uphold Judge Smith's resolution of Welton's claims for post-conviction relief. The judgement of the superior court is AFFIRMED.

FootNotes


1. Lavigne v. State, 812 P.2d 217, 222 (Alaska 1991) (holding that, before a trial judge allows the defense to rest in a criminal trial without calling the defendant to the stand, the judge must personally address the defendant and make sure the defendant understands that it is their right to personally decide whether to testify, regardless of what advice their attorney might give them on this matter).

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