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noting that trial court, inter alia, permitted the defendant to introduce expert testimony with respect to the weapon focus effect
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Court of Appeals Nos. A-8586 A-9108.
August 2, 2006
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge. Trial Court Nos. 4FA-02-894 Cr 4FA-03-1952 Ci.
Susan M. Carney, Assistant Public Advocate, Fairbanks, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Lee A. Brown has two appeals pending before this Court. In File No. A-8586, Brown is appealing his convictions for robbery and theft. (Brown was also convicted of driving while intoxicated, but he has not appealed that conviction.) In File No. A-9108, Brown is appealing the superior court's denial of his petition for post-conviction relief arising from the same criminal prosecution.
Because Brown's two appeals involve interrelated facts, we have chosen to resolve both appeals in a single decision. For the reasons explained here, we affirm Brown's convictions and we also affirm the superior court's denial of Brown's petition for post-conviction relief.
The first group of issues on appeal involves a multi-pronged suppression motion that Brown filed in the superior court. The superior court granted certain portions of Brown's motion but denied other portions. On appeal, Brown argues that the superior court should have suppressed more of the evidence against him.
Underlying facts pertinent to the suppression issues
On March 26, 2002, a man robbed one of the Fairbanks branches of First National Bank Alaska. The man — who was later described as a black male, about 5' 9" tall, wearing oval wire-frame eyeglasses — walked up to teller Zinaida Gilbert and placed a note on the counter in front of her. This note read: "Stay calm. I have a gun. Give me the money." When Gilbert did not immediately respond to this note, the robber spoke to her: he reiterated that she should stay calm, and that he had a gun. The robber then lifted his outer shirt, displaying under his t-shirt the outline of an object which Gilbert believed to be a gun.
Gilbert removed the money from two drawers at her station and gave this money to the robber. This money included a special packet of fifteen $2 bills, as well as a packet of "bait money": a group of ten specially marked $20 bills, with a transmitter hidden among the bills. All told, the robber left the bank with over $7000 in stolen money.
Once the robber had left the bank, Gilbert alerted her co-workers that a robbery had just occurred, and the police were summoned. Within minutes, the police found the discarded bank transmitter (the one that had been bundled with the "bait money") about fourteen blocks from the bank. The robber escaped.
(a) The traffic stop, the discovery of a large amount of cash on Brown's person, and Brown's statements about this money
Two days later, on March 28th, Lee Brown was pulled over by two Alaska State Troopers because his vehicle did not have a front license plate. During this traffic stop, the troopers observed signs that Brown was intoxicated, and they arrested him for driving while intoxicated. However, they did not give Brown Miranda warnings at this time.
When one of the troopers, Ramin Dunford, conducted a pat-down search of Brown (preparatory to placing Brown in the troopers' patrol vehicle), he discovered that Brown was carrying a large amount of cash. This cash was located in various pockets in Brown's clothing. Trooper Dunford did not count this cash, but he estimated that Brown was carrying about $5000. Dunford commented aloud that Brown was carrying "an awful lot" of cash, but the troopers had no information about the bank robbery, and they put all the money back into one of Brown's pockets.
A little later, apparently after Brown was placed in the patrol car, Brown asked Trooper Dunford if he (Dunford) played pool. Dunford answered that he did not, and then he asked Brown, "Are you good at it? It looks like you're good at it." Brown responded, "I won [that money] from the king pin."
The troopers took Brown to the trooper headquarters to administer a breath test. Brown's blood alcohol level tested at .120 percent — substantially over the legal limit. Following the breath test, the troopers read Brown his Miranda rights for the first time, and then they drove him to the Fairbanks Correctional Center for booking on the charge of misdemeanor driving while intoxicated.
(b) The unlawful search at the jail, the discovery of the crack pipe on Brown's person, the initial suspicion that Brown was the bank robber, and the decision to charge Brown with a drug offense to prevent him from bailing out of jail
At the time of Brown's arrest, the pre-established bail for misdemeanor DWI was $500. As we have just explained, Brown clearly had enough cash on his person to post this bail.
In Zehrung v. State, 569 P.2d 189 (Alaska 1977), as modified on rehearing, 573 P.2d 858 (1978), the Alaska Supreme Court ruled that when a person is brought to jail under arrest for a bailable misdemeanor offense, it is illegal for corrections officers to conduct an inventory search of the person's possessions until it is clear that the person will be unable to post bail and, as a consequence, will be placed among the general jail population.
Two years ago, in Anderson v. State, 91 P.3d 984 (Alaska App. 2004), this Court noted that the Department of Corrections apparently violates the Zehrung rule on a routine basis. Brown's case provides yet another example of this routine illegality.
Anderson, 91 P.3d at 989 (Mannheimer, J., concurring).
Before asking Brown whether he could post bail, corrections officers subjected Brown to a thorough search for "weapons or drugs". As part of this search, the officers emptied everything from Brown's pockets.
During the evidentiary hearing in the superior court, Corrections Officer Michael Stricklin described this search as "standard procedure". The superior court (in its findings of fact) noted that both Stricklin and another corrections officer, James Kinnel, gave consistent and repeated testimony (over the course of two days) "that the search process at the jail was the same, bail or no bail, and that everyone was subject[ed] to a full search and inventory". In other words, the Department of Corrections consistently and routinely violates the constitutional rights of arrestees as interpreted in Zehrung.
While conducting this illegal search of Brown's person, the corrections officers found a crack pipe hidden under Brown's money — an item that the troopers had failed to discover during the earlier pat-down search. The corrections officers turned this crack pipe over to Trooper Dunford, who was still present at the jail.
Officer Stricklin asked Brown where he had gotten all of his money, and Brown repeated what he had told the troopers — that "he won it playing pool". At this point, the corrections officers asked Brown whether he intended to post the $500 bail for driving while intoxicated, and Brown stated that he did. The corrections officers then began preparing the necessary bail paperwork.
In the meantime, Corrections Officer Daniel Colang was making his rounds at the jail. He knew about the bank robbery and he was familiar with the description of the robber that witnesses had provided to the police. Colang saw Brown being booked, and he thought to himself that Brown matched the description of the robber.
Colang then approached the corrections officers who were processing Brown. He looked at the remand sheet and noted that Brown had been arrested for DWI. Colang quietly informed officers Stricklin and Kinnel of his suspicions that Brown was the culprit in a bank robbery. Somewhat surprisingly, neither of the two officers told Colang that Brown was carrying an uncommonly large amount of cash. However, the officers did tell Colang the names of the two troopers who had arrested Brown, so Colang called the troopers (who were still on duty) to communicate his suspicion.
During his conversation with the troopers, Colang asked what kind of vehicle Brown had been driving. When the troopers answered that Brown had been driving a Ford Bronco II, Colang informed them that this vehicle matched the description of the robber's vehicle.
Colang then told the troopers that Brown was in the process of bailing out of jail, and that the corrections officers could not hold Brown unless he was charged with another crime. After consulting the district attorney's office, the troopers charged Brown with fourth-degree controlled substance misconduct, based on the discovery of the crack pipe. This offense is a class C felony, and there was no pre-established bail for this offense. In other words, the new charge meant that Brown would have to stay in jail until bail was set for him at his initial court appearance.
See AS 11.71.040(d).
(c) The interview at the jail
Once Brown was securely in jail without immediate possibility of bailing out, corrections officers called the Fairbanks police to inform them that they were holding a potential suspect in the bank robbery. Later that morning, three law enforcement officers assembled a photo lineup (containing a photograph of Brown) and showed it to several bank employees. The teller who was robbed (Zinaida Gilbert) identified Brown as the man who had robbed the bank two days earlier.
Based on this identification and the other circumstances described above, the police obtained a warrant to search Brown's possessions at the jail. During this search, the police found a set of oval wire-frame eyeglasses and a little less than $5000 in cash. This cash found included fifteen $2 bills (the exact number of $2 bills taken from the bank), as well as eight of the ten specially marked $20 bills that comprised the "bait money".
Fairbanks Police Detective Randall Coffey and FBI Special Agent Mark Terra interviewed Brown at the jail that same day. After Brown was advised of his Miranda rights, he waived his rights and chose to answer the questions posed to him.
When the officers asked Brown about the money he had been carrying, Brown answered that he had won this money "hustling" pool and selling drugs. Brown denied any part in the bank robbery — even after the officers falsely told him that he had been identified from a bank surveillance videotape.
(d) Brown's pre-trial suppression motions, and the superior court's rulings on these motions
Following his indictment for robbery and theft, Brown filed a motion seeking seeking suppression of all the statements he made to the authorities — i.e., his statements to the troopers during the traffic stop and the ensuing arrest, his statements to the corrections officers during the inventory of his possessions at the jail, and his statements to the police detective and the FBI agent during the later interview at the jail.
Brown argued that his statements to the troopers following his arrest for DWI should be suppressed because he was in custody and he was not advised of his Miranda rights. Brown then argued that, although he received Miranda warnings before he made the remainder of his statements, all of his ensuing statements were the tainted fruit of the initial Miranda violation by the troopers.
Superior Court Judge Niesje J. Steinkruger agreed that Brown should have received Miranda warnings when the troopers arrested him for DWI. However, Judge Steinkruger concluded that Brown's statements to the troopers ( i.e., his remarks about where he had gotten the money) were not the product of custodial interrogation. Rather, Judge Steinkruger concluded, these statements were volunteered by Brown. Alternatively, Judge Steinkruger concluded that even if Brown's statement about having won the money playing pool could be attributed to Trooper Dunford's earlier remark about the large amount of cash that Brown was carrying, Dunford's remark was not the functional equivalent of interrogation under Rhode Island v. Innis because, at the time Dunford made his remark, he did not know that a bank robbery had occurred. In other words, Dunford had no reason to think that his remark about the cash in Brown's pockets would elicit self-incriminating statements.
446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In Innis, the United States Supreme Court held that, for purposes of applying the Miranda rule, "interrogation" includes not only direct questioning but also "any [other] words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response". Id., 446 U.S. at 301, 100 S.Ct. at 1689.
Because Judge Steinkruger rejected Brown's claim that his statements to the troopers were obtained in violation of Miranda, she likewise rejected his assertion that all of his ensuing statements to the authorities should be suppressed as the tainted fruit of this purported Miranda violation.
Nevertheless, Judge Steinkruger suppressed the statements that Brown made to the corrections officers during their inventory search of Brown's possessions — because this inventory search violated Zehrung, and because Brown's statements to the corrections officers were the tainted fruit of this unlawful search.
With regard to suppression of the physical evidence, Brown argued that even though the initial traffic stop of his vehicle and his ensuing arrest for DWI might have been justified, the troopers' discovery of the cash in his pockets was outside the bounds of a proper search incident to arrest. Brown pointed out that, in Alaska, a search incident to arrest is limited to a search for (a) weapons and (b) concealable evidence of the crime for which the person has been arrested. Brown argued that the removal of the cash from his pockets could not be justified as a search for weapons or for evidence of the crime of driving while intoxicated.
See State v. Joubert, 20 P.3d 1115, 1119 (Alaska 2001); Dollison v. State, 5 P.3d 244, 246 (Alaska App. 2000).
Judge Steinkruger agreed with Brown that the troopers' removal of the cash from Brown's pockets was unlawful, and she therefore suppressed the troopers' discovery of this cash.
Brown also argued that the inventory search of his possessions by the corrections officers at the jail violated his rights under the Zehrung decision. As we explained above, Judge Steinkruger agreed with Brown, and she suppressed the corrections officers' discovery of the cash as well as the crack pipe.
Two issues remained: the validity of the search warrant for Brown's possessions that was served at the jail, and the admissibility of Brown's statements to the Fairbanks police detective and the FBI agent who interviewed him at the jail after the search warrant was served.
In the superior court, Brown raised nine attacks on the sufficiency of the affidavit supporting the search warrant. Three of those attacks are pertinent to this appeal:
Brown argued that the search warrant affidavit impermissibly relied on information about the large amount of cash that had been found on Brown's person (first by the troopers, and then by the corrections officers). Brown next argued that the search warrant affidavit impermissibly relied on information about the crack pipe that was discovered during the illegal inventory search at the jail. And finally, Brown argued that the search warrant affidavit impermissibly relied on the fact that Brown had been identified in the photo lineup. Brown contended that the police decision to include Brown's photograph in this photo lineup was tainted by their knowledge that a large amount of cash was found on his person.
Judge Steinkruger agreed that the information about the cash and the crack pipe found on Brown's person had to be deleted from the search warrant affidavit. However, she concluded that the photo lineup was not tainted by the fact that a large amount of cash had been discovered on Brown's person. Rather, she concluded that the decision to include Brown's photograph in the photo lineup stemmed from the fact that Brown matched witness descriptions of the robber, and that Brown's vehicle matched witness descriptions of the robber's vehicle. Judge Steinkruger noted that Corrections Officer Colang did not yet know about the cash found in Brown's pockets when he called the troopers to report his suspicion that Brown was the robber.
Judge Steinkruger then ruled that, even excising the information about the cash and the crack pipe found on Brown's person, the search warrant affidavit still supported the issuance of the warrant. She therefore denied Brown's motion to suppress the evidence obtained during the execution of this warrant.
The last issue was the admissibility of the statements that Brown made to the police detective and the FBI agent during the interview at the jail after the execution of the search warrant. Judge Steinkruger found that these statements were not tainted by Brown's earlier (and now suppressed) statements to the corrections officers.
The judge noted that Brown had said essentially the same thing to the troopers when he was arrested for DWI. (As explained above, Judge Steinkruger ruled that Brown's statements to the troopers were admissible.) The judge further noted that Brown received Miranda warnings at the trooper station (before he was taken to the jail), and that the police detective repeated the Miranda warnings to Brown at the beginning of the jail interview. Third, the judge noted that the police detective had not been present when Brown made the suppressed statements to the corrections officers. Finally, Judge Steinkruger found that a "significant amount of time" passed between Brown's statements to the corrections officers during the inventory search and his statements to the police detective and the FBI agent during the jail interview. Judge Steinkruger concluded that these circumstances were "sufficient . . . to remove any taint" from Brown's unlawfully obtained statements to the corrections officers.
Brown's challenges on direct appeal to Judge Steinkruger's suppression rulings
In his direct appeal (File No. A-8586), Brown argues that Judge Steinkruger should have suppressed his statements to the troopers following his arrest for DWI. However, instead of renewing his argument that these statements were obtained in violation of Miranda (the argument that he advanced in the superior court), Brown now argues that his statements to the troopers should have been suppressed because they were the fruit of the unlawful discovery of the cash in his pockets. Brown then argues that, because his statements to the troopers should have been suppressed, Judge Steinkruger was wrong when she concluded that Brown's later statements during the jail interview were admissible.
Brown concedes that Judge Steinkruger was correct when she found that Brown volunteered his statements to the troopers about winning the money playing pool, and Brown further concedes that "such volunteered statements are not suppressible [under] Miranda". But Brown asserts that Judge Steinkruger "overlooked the taint of the illegal search that triggered the discussion about the money".
If Judge Steinkruger "overlooked" the possibility that Brown's statements to the troopers might be the fruit of a Fourth Amendment violation, it was because Brown did not make this argument to Judge Steinkruger. The only rationale that Brown advanced for suppressing his statements to the troopers was that these statements were obtained in violation of Miranda. Judge Steinkruger rejected this argument, and Brown now concedes that the judge's ruling was correct.
In Moreau v. State, 588 P.2d 275, 280 (Alaska 1978), the Alaska Supreme Court held that, absent exceptional circumstances, a defendant can not raise a new Fourth Amendment argument on appeal. Accordingly, we affirm Judge Steinkruger's rulings (1) that Brown's statements to the troopers were admissible, and (2) that Brown's statements to the police detective and the FBI agent were admissible.
Brown also challenges Judge Steinkruger's ruling that the physical evidence seized under the authority of the search warrant — basically, the cash that had been in Brown's pockets — was admissible. Brown does not dispute Judge Steinkruger's conclusion that the search warrant affidavit, stripped of its improper information, still supported the issuance of the warrant. But Brown argues that, even though the warrant was properly issued, the search still rested on an illegality.
Brown points out that he would have been able to bail himself out of jail if he had not been charged with the felony drug offense, and he further points out that the evidence of that drug offense — the crack pipe — was discovered and seized during an inventory search that was conducted in violation of Zehrung. Brown argues that the illegal discovery of the crack pipe led to the filing of the felony drug charge, and that this felony drug charge was the only reason that Brown's personal possessions were still present at the jail when the officers arrived with the search warrant. Thus, Brown argues, the money discovered and seized under the search warrant is the tainted fruit of the Zehrung violation.
This argument was not presented in Brown's suppression motion. In that motion, Brown argued that the evidence should be suppressed because the search warrant was invalid — because the search warrant affidavit relied on illegally seized evidence. The relevant portion of Brown's suppression motion ends with these two sentences:
Mr. Brown submits that[,] once the court excises the information regarding the amount of cash [found] on his person, the fact that he had a [crack] pipe on his person, and the information that he was [identified in] a photographic lineup, the remaining evidence presented to the magistrate is insufficient to establish probable cause for [the] issuance of the warrant. Therefore, all items seized pursuant to the warrant must be suppressed. . . .
As we explained above, these are the contentions that Judge Steinkruger addressed in her ruling. The judge agreed with Brown that the information regarding the cash and the crack pipe should be deleted from the search warrant affidavit. She rejected Brown's contention that the information regarding the photo lineup should be deleted from the search warrant affidavit, because she concluded that the police decision to include Brown's photograph in the photo lineup was not tainted by the discovery of the cash and the crack pipe. And, finally, she concluded that even when the information regarding the cash and the crack pipe was deleted from the search warrant affidavit, the affidavit still established probable cause to issue the warrant.
In her ruling, Judge Steinkruger did not address Brown's current argument: the argument that the money would not have been present in the jail, available to be seized, but for the authorities' discovery of the crack pipe and the subsequent filing of the felony drug charge. As we noted above, this argument was not presented in Brown's written suppression motion.
We acknowledge, however, that this contention was mentioned in passing, at the end of a two-day evidentiary hearing, at the very end of the defense attorney's lengthy argument that the search warrant affidavit was based on illegally seized evidence. At the conclusion of the defense attorney's argument (which covers seventeen pages of transcript), the defense attorney finally articulated Brown's current theory for suppressing the money found during the execution of the search warrant:
Defense Attorney: The things [in] the warrant [affidavit] — basically, none of it is reliable. I mean, there's just really nothing left in this warrant [affidavit], once you look at the problems with it. . . . [It is] certainly far from probable cause, and there's not even a reasonable suspicion [to be gleaned from this affidavit]. Most of what's in the warrant [affidavit] that would establish probable cause, really, is the fact that there is a large amount of money found on Mr. Brown. And, again, this is fruit [of] the poisonous tree. Mr. Brown was unlawfully arrested after the [crack] pipe was found, and had he not been held, he and the money would have been out the door. [The money] would not have been there for the police to seize it. So the whole thing just is fruit [of] the poisonous tree — from the finding of the money, the finding of the pipe, the arrest of Mr. Brown on the [drug] charge. There just isn't probable cause [for] this warrant, and we believe [that Brown's situation] is pretty similar to the . . . case that I cited. Okay. Thanks, Your Honor.
But even if we assume that these italicized sentences were sufficient to alert Judge Steinkruger that Brown had just articulated a new rationale for suppressing the evidence obtained under the search warrant, it is clear that Judge Steinkruger did not address this argument when she issued her ruling, and it is also clear that Brown's attorney never complained that Judge Steinkruger had failed to address this argument.
To preserve an issue for appeal, an appellant must obtain an adverse ruling. "We have consistently held that a defendant who chooses to proceed without demanding a ruling from the trial court waives the potential claim of error." Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002). Accordingly, we conclude that Brown failed to preserve his current suppression argument regarding the evidence seized pursuant to the search warrant. And, because Brown does not challenge any other aspect of Judge Steinkruger's ruling regarding the validity of the search warrant, we affirm the judge's ruling that the evidence seized under the search warrant was admissible.
See also Marino v. State, 934 P.2d 1321, 1327 (Alaska App. 1997) (the defendant proceeded to trial without demanding a ruling on his discovery request and, therefore, waived the issue for appeal); Erickson v. State, 824 P.2d 725, 733 (Alaska App. 1991) (because the defendant failed to press the trial judge for a ruling on his motion to suppress his statements to the police, he did not properly preserve the issue for appeal); Jonas v. State, 773 P.2d 960, 963 (Alaska App. 1989) (the defendant proceeded to trial without demanding a ruling on his motion for psychiatric evaluations of the complaining witnesses and, therefore, forfeited this motion).
(We express no opinion as to whether Brown's argument, if it had been properly preserved, would have been meritorious. We note, however, that the argument appears to rest on an assertion of "but for" causation: the assertion that the money should be deemed the fruit of the prior illegal search because Brown and his money would no longer have been at the jail but for the prior discovery of the crack pipe and the filing of the felony drug charge. As we explained in McBath v. State, 108 P.3d 241, 248 (Alaska App. 2005), and Halberg v. State, 903 P.2d 1090, 1097 (Alaska App. 1995), courts do not apply a "but for" test when deciding whether evidence is tainted by prior police misconduct.)
See Hutto v. Ross, 429 U.S. 28, 30; 97 S.Ct. 202, 203; 50 L.Ed.2d 194 (1976); Brown v. Illinois, 422 U.S. 590, 603; 95 S.Ct. 2254, 2261; 45 L.Ed.2d 416 (1975).
Brown's post-conviction attack on the competence of his trial attorney's litigation of the suppression motion
As we noted at the beginning of this opinion, Brown not only filed a direct appeal of his conviction, but he also filed a petition for post-conviction relief. In his post-conviction relief petition, Brown alleged that his trial attorney represented him incompetently in two specific ways. Both of these allegations of incompetence involve the defense attorney's litigation of Brown's suppression motions.
As we explained in the preceding section of this opinion, Judge Steinkruger suppressed the fact that the troopers had discovered cash in Brown's pockets during the DWI arrest — because she concluded that the troopers discovered this money during an improperly intrusive search incident to arrest. However, Judge Steinkruger did not suppress the cash itself, or its connection to Brown — because she concluded that the authorities lawfully came into possession of this cash when they served the search warrant at the jail and found the cash among Brown's possessions.
In addition, Judge Steinkruger did not suppress Brown's statements to the troopers about this cash. The judge concluded that these statements were volunteered. Alternatively, the judge concluded that Brown's statements were not the product of custodial interrogation — because, when Trooper Dunford remarked that Brown was carrying a lot of money, he was unaware of the bank robbery and had no reason to believe that his remark about the cash in Brown's pockets would elicit self-incriminating statements.
In his petition for post-conviction relief, Brown contended that his trial attorney incompetently framed and litigated Brown's suppression motions relating to the statements that Brown made to the troopers during his arrest for DWI. Brown asserts that his trial attorney acted incompetently when she confined her suppression argument to a claim that these statements were obtained in violation of Brown's Miranda rights.
As just explained, Judge Steinkruger concluded that the troopers exceeded the proper scope of a search incident to arrest when they discovered the cash in Brown's pockets. Brown argues that a competent defense attorney would have realized that this Fourth Amendment violation provided a separate and arguably more convincing rationale for seeking suppression of Brown's statements to the troopers. That is, Brown asserts that, once Judge Steinkruger ruled in Brown's favor on the question of whether the troopers violated Brown's Fourth Amendment rights during the DWI arrest, any competent attorney would have argued that Brown's ensuing statements to the troopers should be deemed the tainted fruit of this Fourth Amendment violation.
Because the superior court dismissed Brown's petition without a hearing, the question in this appeal is whether Brown's petition presented at least a prima facie case that no competent criminal defense attorney would have acted in the way that Brown's trial attorney did. See Bryant v. State, 115 P.3d 1249, 1258 (Alaska App. 2005); State v. Jones, 759 P.2d 558, 568 (Alaska App. 1988).
We conclude that the superior court's dismissal of this ground for post-conviction relief was proper, even assuming that Brown's proposed Fourth Amendment attack would have succeeded and that Brown's statements to the troopers could have been suppressed on this ground. Even given the existence of a winnable Fourth Amendment suppression argument, the question remains whether there is reason to believe that Brown's trial attorney was incompetent for failing to pursue this argument.
At first blush, it might seem that Brown's attorney would have little to gain from pursuing this Fourth Amendment claim. First, even though Judge Steinkruger suppressed the troopers' discovery of the cash during the DWI arrest, the judge ruled at the same time that the cash itself was admissible against Brown — because the cash was seized during the execution of the search warrant at the jail, and Judge Steinkruger upheld the validity of that search warrant. Second, when Brown was interviewed at the jail following the execution of the search warrant, he gave the same explanation for his possession of the money; that is, he asserted that he won the money playing pool. Brown's statements on this later occasion were also admissible against him — because Judge Steinkruger rejected Brown's attack on this interview.
Moreover, Brown's statements to the troopers were exculpatory; they provided an innocent explanation for Brown's possession of the "bait money" and the distinctive $2 bills that were taken during the bank robbery. Indeed, at Brown's trial, he took the stand and offered essentially the same explanation for his possession of the money: Brown testified that he got the money by selling drugs, shooting pool, and gambling.
An attorney representing Brown might reasonably conclude that, regardless of whether Brown's statements to the troopers were theoretically suppressible, it would help Brown's case if those statements were introduced at Brown's trial — because this would show that Brown had offered a consistent, exculpatory explanation for his possession of the money, even before the authorities realized that Brown fit the description of the bank robber or that the money in his pockets was connected to the robbery.
But in his petition for post-conviction relief, Brown argues that there was more at stake than simply the suppression of his statements to the troopers during his arrest. Brown contends that suppression of his statements to the troopers would also have led to suppression of his statements to the police detective and FBI agent who later interviewed Brown at the jail.
As we explained earlier in this opinion, Brown filed a pre-trial motion seeking suppression of this interview at the jail. Brown conceded that he had received Miranda warnings and that he had waived his rights before the officers began to question him, but he argued that his decision to waive his rights was tainted by the statements that he made earlier to the corrections officers while they were performing their illegal inventory of his belongings.
In Alaska, when a defendant asserts that a waiver of Miranda rights is tainted by a prior illegality, courts apply the test that we announced Halberg v. State, 903 P.2d 1090 (Alaska App. 1995). The ultimate question is whether the defendant's waiver of rights is "sufficiently an act of free will to purge . . . the taint" of the prior illegality. Id. at 1097, quoting Brown v. Illinois, 422 U.S. 590, 602; 95 S.Ct. 2254, 2261; 45 L.Ed.2d 416 (1975).
In Brown's petition for post-conviction relief, he noted that when Judge Steinkruger ruled that Brown's waiver of rights had not been tainted by the prior illegal actions of the corrections officers, one of the circumstances that she relied on was the fact that Brown had said essentially the same thing to the troopers when he was arrested. Brown argued that if his statements to the troopers had been suppressed as well, then Judge Steinkruger would have reached the opposite conclusion when she applied the Halberg test to judge the validity of Brown's waiver of his Miranda rights at the beginning of the jail interview.
This is not self-evident. The troopers who initially arrested Brown for driving while intoxicated gave him Miranda warnings while Brown was at the trooper station. And, as we explained above, Judge Steinkruger relied on several factors in her Halberg analysis — not just the fact that Brown had made similar statements at the time of his arrest, but also the fact that the police detective gave fresh Miranda warnings to Brown before interviewing him at the jail, the fact that a significant amount of time had passed between Brown's statements to the corrections officers during the inventory search and his statements to the police detective and the FBI agent during the jail interview, and the fact that the detective and the FBI agent who interviewed Brown at the jail were not involved in the earlier tainted questioning by the corrections officers. Judge Steinkruger concluded that these circumstances, in combination, were "sufficient . . . to remove any taint" from Brown's unlawfully obtained statements to the corrections officers. To this, we would add the fact that Brown's prior statements were exculpatory, not inculpatory. See Halberg, 903 P.2d at 1099.
Brown's petition for post-conviction relief contains only a cursory and conclusory argument on this point. Brown's petition contains no renewed Halberg analysis of the circumstances surrounding his interview at the jail. Instead, he simply declares that if this one circumstance had been different ( i.e., if his statements to the troopers at the scene of his arrest were suppressed), then the superior court would have ruled that his waiver of Miranda rights at the jail was tainted.
But as we explained above, Judge Steinkruger upheld the search warrant and the seizure of the cash from Brown's possessions at the jail. Thus, even if the superior court had suppressed Brown's statements to the troopers at the time of his arrest, and even if the court had then suppressed Brown's statements to the police detective and the FBI agent at the jail, Brown would still have faced the problem of explaining his possession of the stolen money. A competent defense attorney could conclude that it would help Brown's defense if the jury heard that Brown repeatedly offered the same exculpatory explanation for his possession of the money.
For these reasons, we agree with the superior court that Brown failed to present a prima facie case that his trial attorney acted incompetently in failing to pursue a Fourth Amendment challenge to the admissibility of Brown's statements to the troopers at the scene of his arrest.
In his brief to this Court, Brown also argues that suppression of his statements to the troopers would have invalidated the search warrant — and, thus, the authorities would never lawfully have taken possession of the cash that was seized from Brown's possessions at the jail.
This argument was never presented to the superior court. It is therefore waived.
The mistrial issues
At one point during Brown's trial, Brown's attorney unsuccessfully asked the superior court to declare a mistrial. On direct appeal, Brown argues that Judge Steinkruger should have granted the mistrial. And in his petition for post-conviction relief, Brown argues that his trial attorney incompetently failed to make this motion for a mistrial a little earlier; Brown asserts that the superior court would have granted the mistrial if only his attorney had objected sooner.
(a) Underlying facts
As explained above, Judge Steinkruger suppressed the fact that the troopers had discovered the cash on Brown's person, but she did not suppress Brown's statements to the troopers about how he got this money. So, before the prosecutor called Trooper Dunford to the stand, he asked Judge Steinkruger to establish the rules that would govern his questioning of the trooper. The following colloquy ensued between the parties and Judge Steinkruger:
Prosecutor: I don't want to run afoul of the court's [suppression] order. . . . [But] the [court] also [ruled] that the defendant's statements to [the troopers] are admissible as volunteered statements, and those statements mention [the] money and shooting pool. . . . I [am asking] if this court's ruling prevents [the troopers] from stating that, as part of this contact [surrounding the DWI arrest], the defendant said that he won this large amount of money playing pool — and that the [context of the defendant's remark] is that the [trooper] saw some money in the [defendant's] pocket[s].
. . .
And my understanding . . . of [the court's] ruling is that [the trooper cannot testify about] pulling the money out, and going through it, and fanning it, et cetera, but [the trooper can testify] that [he], as a result of a pat[-down search], noticed a large amount of money. We don't go any further than that. . . .
. . .
The Court: I find that what [the prosecutor has said] is an accurate [interpretation of my ruling]. . . .
. . .
Defense Attorney: I guess I don't understand the ruling now.
The Court: The ruling is that . . . Dunford may [give] testimony, not about where he [discovered] the money, . . . but that [Brown] had money on him. . . .
Defense Attorney: But I thought the fact that he had the money on him is suppressed. . . . I don't think that the State can [present testimony] that he had money on him at the DWI stop, because that's been suppressed.
The Court: The Court finds that the questions that [the prosecutor] just referred to, and the statements that [he] just referred to, [are] admissible. . . .
Based on this discussion, one might argue that Judge Steinkruger did not really "clarify" her earlier ruling; rather, she changed it. But if Judge Steinkruger did indeed alter her ruling, the altered ruling made sense.
True, the judge had earlier ruled that the troopers could not testify about finding the money in Brown's pockets during the DWI arrest. But that information was going to be presented to the jury anyway.
As we have explained, Judge Steinkruger did not suppress the items that were seized at the jail pursuant to the search warrant — including the cash. Thus, the State was authorized to present testimony that thousands of dollars in cash was found among Brown's possessions at the jail. Given the fact that Brown had no opportunity to obtain this cash between the time that the troopers arrested him for DWI and the time that the search warrant was served, the inference was inescapable that Brown had this money on his person when the troopers arrested him.
Moreover, Judge Steinkruger had not suppressed Brown's statements to the troopers about where he got this money — and it was almost impossible for the troopers to meaningfully describe Brown's remarks about the money ( i.e., his assertion that he won it playing pool) without explaining the context in which Brown offered his remarks.
Thus, if Judge Steinkruger did in fact change her ruling during the above-quoted colloquy with the attorneys, it appears reasonable for her to do so. But regardless of whether Judge Steinkruger's remarks represented a clarification or an alteration of her earlier decision, Brown does not challenge the ruling that we have quoted here. In fact, Brown did not mention this ruling in his petition for post-conviction relief ( i.e., his pleadings in the superior court), nor does Brown discuss the judge's ruling in his briefs to this Court — neither in his direct appeal nor in his post-conviction relief appeal.
A few moments after Judge Steinkruger made her ruling concerning the testimony that the trooper could give about the discovery of the cash in Brown's pockets, the prosecutor commenced his direct examination of Trooper Dunford. During that direct examination, the prosecutor adhered to Judge Steinkruger's guidelines:
Prosecutor: [D]id you do any kind of a pat-down of the defendant as a result of arresting him for the DWI?
Dunford: Yes.
Prosecutor: And when you were patting him down, did you note anything unusual?
Dunford: Yes, I did. . . . [I] noted that there was a large amount of money on his person.
Prosecutor: And did you . . . make mention of that, just out loud?
Dunford: [Yes.] I was surprised. I . . . said that this was a lot of money.
Prosecutor: And did the defendant — did he offer or state anything to you in response to that . . . exclamation that you made?
Dunford: He asked if I played pool. . . . I said [that] I didn't.
Prosecutor: And did the conversation continue after you said [that]?
Dunford: Yes. Yes, he continued it. It ended, basically, that he won it playing pool.
The defense attorney did not object to this testimony, and the prosecutor moved on to other subjects.
Some minutes later, the defense attorney began her cross-examination of Trooper Dunford. During that cross-examination, the defense attorney returned to the subject of the money in Brown's pockets:
Defense Attorney: You testified on direct [examination] that you [did] some kind of pat-down search when you arrested Mr. Brown. And I believe you said [that] you . . . located some money that you asked him about. Is that true?
Dunford: Correct.
Defense Attorney: That money was in several different pockets, right?
Dunford: Let's back up a little bit. I didn't ask him about the money. I [just exclaimed], "Wow, this is a lot of money!"
Defense Attorney: Okay.
Dunford: I didn't ask him about it.
Defense Attorney: And that money was in several different pockets?
Dunford: Yes, [it was].
Defense Attorney: Approximately how many different pockets? . . . At least four or five?
Dunford: Sure.
The defense attorney then moved on to other subjects. However, she returned to this theme when she presented her closing argument to the jury. In her closing argument, the defense attorney asserted that the discovery of the cash in so many of Brown's pockets was significant corroboration of his story that he won the money playing pool, as opposed to obtaining the money in a bank robbery two days before.
During the prosecutor's re-direct examination of Dunford, he asked Dunford two more questions about the discovery of the cash in Brown's pockets. Dunford's answer to the second question prompted the defense attorney to ask for a mistrial:
Prosecutor: [The defense] attorney asked you about the large amount of money [on Brown's person]. You said it was dispersed through different pockets that the defendant had?
Dunford: Correct.
Prosecutor: And can you tell us, . . . when you felt [this money], was it evenly dispersed, or did one [pocket have] a lot more than [the] others, or . . .?
Dunford: One pocket had more money in it than the other pockets.
The prosecutor then dropped this subject and was beginning to ask Dunford about his training as a law enforcement officer, when the defense attorney asked for a bench conference. The defense attorney objected to the fact that Dunford had just testified that one of Brown's pockets contained more money than the others. Judge Steinkruger responded, "I was waiting for that" — apparently acknowledging that Dunford's last answer was at least arguably outside the guidelines she had set for Dunford's testimony.
But when Judge Steinkruger asked the defense attorney, "Is there anything you want me to do right now?", the defense attorney responded that she wanted a mistrial. Judge Steinkruger asked the defense attorney to explain why a mistrial was needed. The defense attorney answered that Dunford had violated the judge's order by mentioning "the fact that [the] money was found at the . . . scene [of the DWI arrest]".
Judge Steinkruger immediately denied this motion for mistrial without comment.
(b) Brown's argument that Judge Steinkruger should have granted the mistrial
On direct appeal, Brown argues that Judge Steinkruger should have granted his attorney's motion for a mistrial.
But as we just explained, the only ground offered by the defense attorney for the proposed mistrial was her assertion that Trooper Dunford had just violated a court order by mentioning the fact that a large amount of money was discovered on Brown's person during Brown's arrest for DWI. This ground was frivolous. Dunford's testimony about discovering the money during the pat-down was not a violation of Judge Steinkruger's order. To the contrary: Judge Steinkruger had just ruled that Dunford could give this testimony, to provide context for Brown's remarks about having won the money playing pool.
The part of Dunford's testimony that arguably violated Judge Steinkruger's guidelines was his last answer describing the manner in which the money was divided among Brown's pockets. But the defense attorney did not give this as a reason for seeking the mistrial. Instead, when asked to explain why a mistrial was needed, the defense attorney asserted that Dunford had violated the judge's order by mentioning "the fact that [the] money was found at the . . . scene [of the DWI arrest]". And, in any case, Judge Steinkruger could reasonably have concluded that the isolated reference to how the money was divided in Brown's pockets did not warrant a mistrial — especially when it could be argued that the prosecutor's question and the trooper's answer were simply responses to the defense attorney's questions during cross-examination.
(c) Brown's argument that his trial attorney was incompetent for failing to immediately request a mistrial when the prosecutor first elicited testimony from Trooper Dunford concerning the fact that a large amount of money had been found in Brown's pockets during the DWI arrest
We now turn to Brown's related argument in his petition for post-conviction relief.
Brown asserts that his trial attorney should have immediately sought a mistrial when the prosecutor first asked Dunford (during direct examination) about the discovery of the money on Brown's person during the DWI arrest. Brown argues that the prosecutor's questions, and Dunford's answers, were clear violations of Judge Steinkruger's suppression ruling.
But as we have just explained, this is not true. Before Dunford took the stand, the prosecutor asked Judge Steinkruger to clarify her ruling on this point. Responding to this request, the judge expressly authorized the prosecutor to question Dunford so as to elicit the fact that a large amount of money had been discovered on Brown's person. The prosecutor's questions on direct examination, and Dunford's answers to those questions, were all within the boundaries of Judge Steinkruger's ruling.
There was no arguable violation of Judge Steinkruger's ruling until the prosecutor, during re-direct, asked Dunford whether the cash had been distributed evenly or unevenly among Brown's pockets. That was when Brown's trial attorney moved for a mistrial. Before that, the prosecutor's questions and Dunford's answers provided no ground for seeking a mistrial.
For these reasons, we agree with the superior court that Brown failed to present a prima facie case that his trial attorney acted incompetently in failing to immediately seek a mistrial when the prosecutor asked the initial questions concerning the troopers' discovery of the money on Brown's person.
Underlying facts relating to Brown's presentation of the expert testimony of Dr. Geoffrey Loftus
Brown's defense at trial was that he was not involved in the bank robbery, and that he had been misidentified by the witnesses from the bank. To support this defense, Brown offered the testimony of Dr. Geoffrey Loftus, a psychologist who specializes in the study of human memory and perception.
When Brown first proposed having Dr. Loftus testify, the State questioned whether the proposed testimony would satisfy the Coon-Daubert test for the admission of scientific testimony. In response, Judge Steinkruger held a four-hour hearing at which Dr. Loftus submitted to questioning by both parties. Based on the testimony presented at this hearing, Judge Steinkruger ruled that Dr. Loftus's testimony was admissible in part.
See State v. Coon, 974 P.2d 386, 395 (Alaska 1999), adopting the test for the admissibility of scientific evidence announced by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Judge Steinkruger ruled that Dr. Loftus was qualified to offer expert testimony on the subjects of human memory and perception. And, applying the Coon-Daubert test and the provisions of Alaska Evidence Rule 702, Judge Steinkruger ruled that Dr. Loftus would be allowed to testify "regarding how memory works, when memory is accurate or inaccurate, what attention is and how it works, [the distinction between] actual duration and functional duration [of events], [the potential problems with] cross-racial identification, global and detailed processing [of stimula], . . . biased and unbiased lineup procedures, [the potential contamination of memory with] post-event information, and the relationship between [a person's level of] confidence [in their memory] and the [actual] accuracy of [their] memory".
Judge Steinkruger found that the testimony described in the preceding paragraph met the Coon-Daubert test because it "can be empirically tested, [it] has been subject[ed] to peer review, the potential error rate is acceptable, standard controls exist and are maintained[,] and the theory [underlying this testimony] has attained general acceptance". In addition, Judge Steinkruger concluded that Dr. Loftus's testimony on these matters would help the jury.
However, Judge Steinkruger ruled that Dr. Loftus would not be allowed to testify "regarding his opinions [on] the application of [the various concepts quoted two paragraphs ago] to the specifics of [Brown's] case". The judge explained that she was excluding this potential testimony because she concluded that any attempt to use general theories of human perception and memory to evaluate the accuracy of a particular identification made by a particular witness would not meet the Coon-Daubert test. Judge Steinkruger wrote:
[Dr. Loftus's] testimony regarding his conclusions [as to] how the theories [of human memory and perception] relate specifically to the testimony of [Paul] Bauer and [Zinaida] Gilbert [ i.e., the two witnesses from the bank who identified Brown as the robber] does not meet the Daubert and Coon tests. In addition, his opinion . . . that the lineups in this case were biased is not admissible.
This court finds that the testimony [described in the preceding paragraph] regarding [Dr. Loftus's] opinions [concerning] the application of the theories to the facts in this case will not assist the trier of fact under Evidence Rule 702[. In addition,] the facts and data which he has relied on [— i.e.,] the police report and [witness] statements [—] are not the type reasonably relied upon by experts[, see] Evidence Rule 703, and the prejudicial effect [of this proffered testimony] outweighs [its] probative value. [Further, t]his court finds that the testimony proffered regarding the specific facts of this case has not been empirically tested.
Judge Steinkruger then added that Brown's attorney would be allowed to argue and to suggest, through cross-examination, that Dr. Loftus's theories were relevant to the jury's decision and that, under the facts of Brown's case, the recognized flaws and biases in human perception and memory were sufficient to cast doubt on the accuracy of the two witnesses' identifications of Brown as the robber.
Brown's trial did not begin until two months later. Brown never sought reconsideration or further clarification of Judge Steinkruger's order.
Dr. Loftus gave extensive testimony at Brown's trial regarding how human memory and perception works, how various circumstances may interfere with, or pose problems for, the accuracy of memory, and how the circumstances of Brown's case suggested reasons to be cautious about the two witnesses' identifications of Brown.
In particular, Dr. Loftus testified that stress and sensory overload can interfere with a person's perception and memory. Dr. Loftus testified, for example, about the phenomenon of "weapon focus", which he explained was the phenomenon "that people tend to pay attention to a weapon when a weapon is [on] the scene, and [because of this, they] fail to pay attention to other aspects of the scene, such as the face of the person who is holding the weapon".
Brown's attorney then asked Dr. Loftus if this same problem would arise if the assailant merely stated that they had a weapon, as opposed to actually possessing one. At this point, the prosecutor objected that Dr. Loftus's testimony was getting so close to the facts of Brown's case that it amounted to an assessment of the actual identifications made by the two witnesses. Judge Steinkruger overruled this objection and allowed Dr. Loftus to answer the defense attorney's question. (In answer to the attorney's question, Dr. Loftus testified that the same "weapon focus" problem would arise under those circumstances.)
Dr. Loftus also testified that, generally speaking, it is harder for people to accurately remember an event of short duration and that, even for events that take a long time, it is important to know the "functional" duration of the event — that is, the period of time during which the witness's attention was actually focused on the pertinent aspects of the situation. Dr. Loftus also described the difficulties that many people experience in making "cross-racial" identifications — that is, identifying people who are of a different racial group from their own. (Brown is a black man, while the two witnesses from the bank are not black.)
Dr. Loftus then offered a critique of the photo lineup procedure employed in Brown's case. He testified that police detectives can unconsciously give witnesses subtle clues about which photograph portrays the person who is under suspicion, and that, for this reason, it is better police practice to use a "double blind" procedure for photo lineups — i.e., the lineup should be administered by a police officer who does not know which photograph is the suspect.
Dr. Loftus also testified that it is better practice to show individual photographs sequentially to the witnesses, rather than confronting the witnesses with a montage of a photographs simutaneously. He declared that the "simultaneous" method is "the less preferred procedure". He explained that studies had shown that the rate of false identification for photo lineups like that was between 63 and 65 percent.
In addition, Dr. Loftus explained how people can take information that they learn after an event, or that is suggested to them about the event, and then incorporate this new information into their memory of the event — so that it seems as if the new information was always part of their memory of the event.
Brown's attorney then asked Dr. Loftus if the fact that two people view a photo lineup and identify the same person as the culprit makes it any more likely that the identification is accurate. The prosecutor objected — again, apparently, on the ground that Dr. Loftus's answer would constitute a masked criticism of the identifications made by the two witnesses in this case. And, again, Judge Steinkruger overruled the objection.
Brown's attorney then had Dr. Loftus examine the six-person photo lineup that was shown to the witnesses in Brown's case. Dr. Loftus stated that, to his eye, the other five individuals depicted in the photo lineup were "noticeably younger" than Brown.
A few moments later, the defense attorney ended her direct examination of Dr. Loftus. Throughout this lengthy examination (which covers over 80 pages of transcript), the defense attorney gave no indication that she had other questions that she wanted to ask, but refrained from asking under the belief that these questions were precluded by the court's pre-trial ruling.
Brown's argument on appeal that the superior court improperly restricted the testimony of Dr. Loftus
In his direct appeal, Brown argues that Judge Steinkruger committed error when she ruled that Dr. Loftus would not be allowed to testify "regarding the application of the theories of perception and memory to the credibility of witnesses Bauer and Gilbert [under] the specifics of this case". Brown contends that Judge Steinkruger "refus[ed] to allow Dr. Loftus to apply his knowledge to the specifics of Mr. Brown's case", and "refus[ed] to allow Dr. Loftus to specifically point out, from a scientific perspective, how and why honest . . . witnesses could be mistaken in their identification of Mr. Brown".
But Judge Steinkruger did allow Dr. Loftus to explain (at length) how honest witnesses might be mistaken in their identifications of a criminal suspect. Moreover, Judge Steinkruger repeatedly — and sometimes over the prosecutor's objection — allowed the defense attorney to question Dr. Loftus about the significance of particular facts in Brown's case. As we explained above, Brown's attorney never complained that her examination of Dr. Loftus was being unfairly or improperly limited.
What Judge Steinkruger would not allow Dr. Loftus to do was to offer an opinion as to whether Bauer's and Gilbert's identifications of Brown as the robber were indeed accurate. As we noted earlier, Judge Steinkruger placed this limitation on Dr. Loftus's testimony because she concluded that any attempt to use general principles of human perception and memory to divine the accuracy of an individual identification in a particular case would not meet the Coon-Daubert test.
On appeal, Brown asserts, in a cursory and conclusory fashion, that if Loftus had been allowed to expressly state his conclusions regarding the reliability of the two witnesses' identifications, this testimony "would have put [Brown's] case in a different light". This may be true, but Judge Steinkruger ruled that Loftus's conclusions on this issue were inadmissible because this testimony would not satisfy the Coon-Daubert test. That is, Judge Steinkruger ruled that even if Loftus was willing to testify that he could tell whether the two witnesses' identifications were accurate or inaccurate, his conclusions would not be based on a scientifically valid methodology.
Brown's brief to this Court does not mention this aspect of Judge Steinkruger's ruling, much less offer any reason to believe that the judge's ruling constituted an abuse of discretion.
Moreover, the record of Brown's trial — in particular, the prosecutor's cross-examination of Dr. Loftus — fully supports Judge Steinkruger's resolution of this issue. On cross-examination, Dr. Loftus conceded that each person has different strengths and weaknesses in memory and perception, and that each occurrence is unique. Dr. Loftus further acknowledged that, even when the person being identified is of a different race, or even when the person was holding a gun at the time of the offense, that the witness's later identification is not necessarily inaccurate.
Dr. Loftus also conceded that witnesses can make accurate identifications even though they had a relatively short exposure to the person — or that, conversely, witnesses can make mistaken identifications even though they had a lengthy exposure to the person. Dr. Loftus declared that the accuracy of an identification "depends on a lot of things".
In other words, Dr. Loftus's testimony on cross-examination supports Judge Steinkruger's earlier ruling on this issue: if Dr. Loftus, instead of merely pointing out the perceptual flaws and biases that potentially influence witness identifications, had asserted the ability to discern the true accuracy or inaccuracy of a specific witness's identification, this testimony would not meet the Coon-Daubert requirements of scientific validity and testability.
For these reasons, we affirm Judge Steinkruger's ruling concerning the permissible scope of Dr. Loftus's testimony.
Brown's contention that the superior court should have found the proposed mitigating factor that Brown's offense was among the least serious within the definition of first-degree robbery
First-degree robbery is a class A felony, and Brown was subject to presumptive sentencing for this crime. In anticipation of his sentencing, Brown proposed mitigator AS 12.55.155(d)(9): that his conduct in committing the robbery was among the least serious within the definition of first-degree robbery.
AS 11.41.500(b).
Former AS 12.55.125(c).
Since the time of Brown's sentencing, this mitigator has been renumbered as (d)(8). See SLA 2005, ch. 2, § 19.
In support of this proposed mitigator, Brown argued that the robber had not actually brandished a gun during the robbery, but rather had merely represented that he was carrying a gun. Brown further pointed out that the robber was calm and polite, that no one was injured during the robbery, and that most of the bank's money had been recovered.
But when a defendant proposes a mitigating factor in a case governed by presumptive sentencing, the defendant bears the burden of proving the mitigator by clear and convincing evidence. AS 12.55.155(f). In Brown's case, Judge Steinkruger found that Brown had failed to prove the proposed mitigator. The judge said:
The Court: It's undisputed that the defendant verbally represented that he had a gun, and I find [that] it has not been established by clear and convincing evidence that there was not a gun, [or] that it was inoperable, [or] that it was a play gun, [or] that it was anything other than [an operational gun].
Brown has failed to show that Judge Steinkruger's resolution of this factual issue was clearly erroneous.
See Michael v. State, 115 P.3d 517, 519 (Alaska 2005); Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App. 1991).
And with regard to Brown's assertion that he injured no one during the robbery, we note that Brown's offense would have been aggravated under AS 12.55.155(c)(1) if he had injured someone. This suggests that the absence of injury does not necessarily prove that Brown's offense was among the least serious.
Cf. Woods v. State, 667 P.2d 184, 187-88 (Alaska 1983) (holding that, because sexual assault does not require proof of injury, the infliction of physical injury can be used as an aggravator).
See Russell v. State, 934 P.2d 1335, 1348 (Alaska App. 1997); Lepley v. State, 807 P.2d 1095, 1098 (Alaska App. 1991).
For these reasons, we uphold Judge Steinkruger's ruling that Brown failed to prove mitigator (d)(9).
Conclusion
The underlying criminal judgement of the superior court is AFFIRMED, and the superior court's dismissal of Brown's petition for post-conviction relief is likewise AFFIRMED.