Opinion
Court of Appeals No. A-12103 No. 6851
01-22-2020
CYNTHIA ESTES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Andrew Steiner, Attorney at Law, Bend, Oregon (opening brief) and Jane Martinez, Law Office of Jane B. Martinez, LLC, Anchorage (reply brief), under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3PA-07-01883 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Appearances: Andrew Steiner, Attorney at Law, Bend, Oregon (opening brief) and Jane Martinez, Law Office of Jane B. Martinez, LLC, Anchorage (reply brief), under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge WOLLENBERG.
Following a jury trial, Cynthia Estes was convicted of first-degree murder and first-degree burglary for acting as an accomplice to her husband, Richard Deremer, in killing Estes's cousin and stealing his prescription medications. We affirmed Estes's convictions on direct appeal.
AS 11.41.100(a)(1)(A) and AS 11.46.300(a)(1), respectively.
Estes v. State, 249 P.3d 313, 320 (Alaska App. 2011).
Estes filed an application for post-conviction relief alleging that her trial attorney provided ineffective assistance of counsel. At trial, Estes's attorney had presented a specific-intent defense — i.e., that Estes did not intend for Deremer to shoot or kill her cousin and she therefore lacked the requisite mental state to be found guilty as an accomplice to first-degree murder. In her post-conviction relief application, Estes argued, among other things, that her attorney was incompetent for failing to adequately present this defense. After an evidentiary hearing, the superior court denied Estes's application for post-conviction relief.
Estes now appeals the denial of her application, renewing her argument that her trial attorney failed to adequately present a specific-intent defense to the jury. In particular, Estes argues that her attorney was ineffective for failing to present testimony from an expert in psychology who had personally evaluated Estes. Estes also argues her attorney failed to adequately explain to the jury in his closing argument how Estes's history of abuse related to the specific-intent requirement.
On appeal, Estes only challenges her murder conviction, not her burglary conviction.
For the reasons explained in this opinion, we reject Estes's arguments on appeal, and we affirm the superior court's denial of her post-conviction relief application.
Underlying facts and proceedings
Estes and her husband, Deremer, were suspected of killing Estes's cousin, David McKinney, and then taking medications from McKinney's home before setting it on fire. The facts surrounding these events are described in detail in our prior decision in Estes's direct appeal (as well as Deremer's appeals), and are briefly summarized here.
Estes, 249 P.3d at 314-16; see also Deremer v. State, 2015 WL 7201207, at *1-3 (Alaska App. Nov. 12, 2015) (unpublished); Deremer v. State, 2008 WL 612871, at *1-3 (Alaska App. Mar. 5, 2008) (unpublished).
In November 2003, McKinney had multiple prescriptions for narcotics and other drugs, including hydromorphone, methadone, and diazepam. He received a total of 840 pills, plus 15 Fentanyl patches, approximately every 28 days. Estes, who had a substantial drug problem, knew that McKinney kept these medications in a floor safe, with the combination to the safe on a slip of paper in his wallet. McKinney came to believe that Estes was stealing his medications, and he allegedly threatened Estes and her family.
In response, Estes drove Deremer to McKinney's residence so that Deremer could confront McKinney. Estes dropped Deremer off at McKinney's house and drove off; Estes and Deremer brought along two-way radios so that they could communicate. While inside alone, Deremer shot McKinney in the head.
When Estes returned to McKinney's house to pick up Deremer, she discovered McKinney's dead body inside. She then retrieved the slip of paper from McKinney's wallet that contained the combination to the safe where McKinney stored his medications, and she showed Deremer the location of the safe. Because they were unable to open the safe, Deremer later returned to the house with tools, retrieved the medications from the safe, and lit the house on fire with a torch before leaving.
The police obtained Glass warrants, and recorded separate conversations that Deremer and Estes each had with Deremer's cousin, Jason Chew. Deremer admitted to murder and arson, and he provided details of the crime that were consistent with the physical evidence.
During his conversation with Estes, Chew asserted that he had spoken with Deremer about the homicide and that Deremer had described how he had plotted with Estes to kill McKinney. Estes denied having any idea that Deremer intended to commit murder; she said she believed that Deremer was merely going to confront McKinney about the ongoing family dispute.
However, during a subsequent interview with two state troopers, Estes admitted that she knew Deremer intended to shoot McKinney when she drove him to the house — although she did not want to believe that he would really go through with it.
Estes was charged, as an accomplice to her husband, with multiple felony counts related to McKinney's death and the subsequent fire in his home. Estes and Deremer were tried separately.
Estes was charged with first-degree murder, first-degree arson, tampering with physical evidence, second-degree murder, and first-degree burglary. A second charge of second-degree murder under AS 11.41.110(a)(3) was dismissed by the prosecutor prior to trial.
Deremer was convicted of all charges. We affirmed Deremer's convictions on direct appeal, and we later affirmed the denial of his application for post-conviction relief. See Deremer, 2015 WL 7201207, at *5; Deremer, 2008 WL 612871, at *6.
In order to establish Estes's guilt as an accomplice to first-degree murder, the State first had to show that one or more persons committed each element of the offense. The State alleged that Deremer shot McKinney, with the intent to kill him.
AS 11.16.100.
Next, to establish Estes's legal accountability for Deremer's conduct, the State had to show (1) that Estes aided or abetted Deremer in planning or committing the murder, (2) that she did so with the intent to promote or facilitate Deremer's conduct, and (3) that she, too, possessed the culpable mental state for first-degree murder — i.e., that she specifically intended McKinney's death.
See AS 11.16.110(2)(B); Spencer v. State, 164 P.3d 649, 655 (Alaska App. 2007); Grossman v. State, 120 P.3d 1085, 1087-88 (Alaska App. 2005) (discussing Riley v. State, 60 P.3d 204, 221 (Alaska App. 2002)).
At trial, Estes's attorney argued that Estes did not know that Deremer was going to kill McKinney, and that she did not intend for Deremer to shoot or kill McKinney. The attorney argued that Estes instead thought that Deremer was simply going to confront McKinney in an effort to put an end to McKinney's threats.
In support of this argument, Estes's attorney presented evidence that Estes was a victim of domestic violence by Deremer. The attorney called two witnesses to show that Estes had been abused by Deremer: Jamie Estes, Estes's daughter, who described Deremer's violent actions toward Estes, and Judy Gette, a Family Violence Intervention Program manager with Alaska Family Services who had a master's degree in counseling psychology. Gette testified about the cycle of domestic violence generally, and her expert opinion that Estes was a victim of domestic abuse. Gette did not meet personally with Estes prior to testifying or forming her opinion.
A jury convicted Estes of first-degree murder and first-degree burglary, acquitting her of the remaining charges. This Court upheld her convictions on direct appeal.
Litigation of Estes's application for post-conviction relief
Estes filed an application for post-conviction relief, raising several claims that her trial attorney had provided ineffective assistance of counsel. Estes renews only a single claim on appeal — that her trial attorney failed to adequately present the defense that Estes lacked the specific intent that Deremer kill McKinney.
The superior court held an evidentiary hearing on Estes's application, and six witnesses testified.
First, the court heard from Melinda Glass, a certified expert in clinical psychology, who performed a psychological evaluation of Estes as part of the post-conviction proceedings. Dr. Glass diagnosed Estes with post-traumatic stress disorder and a significant history of drug and alcohol dependence, and she also noted that Estes had a history of sexual abuse and domestic violence. Dr. Glass discussed the violence and control that Deremer had exhibited over Estes and opined that Estes was still "connected to [Deremer] on some deep level." However, she stated that, based on the information she was given, she could not offer an opinion as to Estes's intent when she drove Deremer to McKinney's house.
Next, the court heard from Estes's trial attorney, who explained that he had presented a specific-intent defense at trial — i.e., that Estes did not intend for her husband to commit murder. The attorney explained that he had counseled Estes not to testify at her trial because he did not believe that she could provide satisfactory answers for many of the prosecutor's anticipated questions, and that her "tough" and "stoic" demeanor would not have presented well to the jury. When asked why he did not obtain a psychological evaluation of Estes, the attorney could not give a specific answer, but he described his impression that Estes would not speak out against Deremer. He stated that, "given my recollection [that] she was a very loyal wife to her husband, I mean I don't know whether it would have even done any good."
A paralegal who worked with Estes's attorney also testified. The paralegal explained that she was a criminal investigator in the attorney's firm at the time of Estes's trial and that she had performed both investigative and paralegal duties, including personally meeting with Estes. The paralegal testified that Estes did not want to testify against her husband, and that Estes was adamant that she was not a victim of domestic violence.
Additionally, Estes presented the testimony of two expert criminal defense attorneys. These attorneys opined that Gette's testimony was insufficient, because she did not personally examine Estes, and Dr. Glass's testimony would have been helpful to the jury to explain Estes's behavior.
The superior court denied Estes's application for post-conviction relief. The court divided Estes's claim regarding the adequacy of her attorney's defense into four parts: (1) the attorney would not let Estes testify on her own behalf, (2) the attorney did not obtain a psychological evaluation of Estes, (3) the attorney used an unqualified expert witness to testify about Estes's psychological state, and (4) the attorney did not call certain defense witnesses who could have confirmed the extent to which Estes had been abused. The court found as to each claim that Estes had failed to meet her burden of proving that her attorney was incompetent and that she was prejudiced by his actions. (On appeal, Estes does not challenge the court's rulings as to her attorney's advice that she should not testify, or the attorney's decision not to call additional witnesses to testify regarding Deremer's abuse of Estes.)
As to Estes's challenges to her attorney's decision not to obtain a psychological evaluation, the court found that in order to prove incompetence on this claim, Estes had to demonstrate that testimony by an expert like Dr. Glass was in some way qualitatively different from Gette's testimony at trial.
The court initially noted that it was not clear whether the defense attorney would have been able to present much of Dr. Glass's testimony without having Estes testify. At most, the court found, an expert like Dr. Glass could have "discussed Ms. Estes' psychological makeup in general terms, based on what he or she was told."
The court further concluded that, although credible, Dr. Glass's testimony "did not differ in any fundamental way from the general characteristics of a victim of domestic violence that were discussed by Ms. Gette." The court further found that, because Dr. Glass could not offer an opinion as to Estes's state of mind on the night of the murder, there was no clear correlation between Dr. Glass's conclusions regarding Estes's mindset and ability to function, and what Estes did or thought on the night of the murder. The judge found that this was "telling with respect to the probative value of Dr. Glass' overall evaluation[.]"
The court also concluded that even if Dr. Glass did have an opinion on Estes's state of mind, she would not have been able to testify as to whether Estes formed a specific intent to commit murder, as this ultimate issue was a decision for the jury. Because Estes argues that Dr. Glass's opinion would have been helpful to the jury even absent an opinion on the "ultimate issue," and because Dr. Glass was unable, as a factual matter, to offer an opinion on the ultimate issue in any event, Estes does not directly contest this portion of the judge's order. We express no opinion on it. Compare Alaska R. Evid. 704 ("Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."); Wilson v. State, 669 P.2d 1292, 1296-97 (Alaska 1983) (applying Evidence Rule 704), with Kodiak v. Samaniego, 83 P.3d 1077, 1088-89 (Alaska 2004) (noting that an expert should not be allowed to state their own conclusions on points that the jury is equally capable of determining for themselves) (discussing Spenard Action Comm. v. Lot 3, 902 P.2d 766, 780-81 (Alaska 1995)).
Accordingly, the court found that, "[g]iven the relatively limited additional value that testimony from a psychologist would have provided, Ms. Estes has not demonstrated by clear and convincing evidence either that [her attorney] was incompetent or that she was prejudiced because he did not obtain a psychological evaluation or hire a psychologist as an expert witness in this case."
It is from this ruling that Estes appeals.
Our resolution of Estes's claims on appeal
On appeal, Estes argues that her attorney's decision not to present expert testimony from a psychologist who had personally examined her was incompetent, and that this failure was prejudicial. Estes contends that the expert's testimony would have been admissible at trial, helpful to the defense case, and substantively different from the more general testimony that was presented through Gette.
In Alaska, a criminal defendant who alleges ineffective assistance of counsel must prove both that the attorney's conduct fell below that of a minimally competent criminal law practitioner, and that there is a reasonable possibility that the deficient performance contributed to the defendant's conviction. This Court reviews a judge's ruling on a claim of ineffective assistance of counsel as a mixed question of law and fact. Accordingly, the court's findings of historical fact are reviewed for clear error, while its conclusions of law related to incompetence and prejudice are reviewed de novo. However, this Court has also recognized that a superior court's findings regarding prejudice are entitled to "considerable deference" where the post-conviction relief judge also served as the trial judge — as is the case here.
Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974); Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008).
Jackson v. State, 750 P.2d 821, 825 (Alaska App. 1988).
Lindeman v. State, 244 P.3d 1151, 1154 (Alaska App. 2011); State v. Laraby, 842 P.2d 1275, 1280 (Alaska App. 1992).
Jackson, 750 P.2d at 825.
After reviewing the record, we are not persuaded that the court erred in rejecting Estes's claim that her attorney was ineffective for relying on Gette's testimony rather than a psychologist who had performed an evaluation of Estes.
As the superior court discussed in its ruling, Estes's trial attorney presented expert testimony regarding domestic violence and factual reports of the abusive relationship between Estes and Deremer. Although Gette, the defense expert, did not personally examine Estes, she provided general testimony about the cycles of domestic violence and how these cycles impact an individual's behavior, and her expert opinion that Estes was a victim of domestic abuse. Estes's daughter also testified about Deremer's violent actions towards Estes. Thus, even without testimony from an expert psychologist who examined Estes, the jury heard about the dynamic between Estes and her husband, and how this could have affected her mental state at the time of the alleged incidents.
Moreover, even assuming that Dr. Glass could offer additional insights about Estes at the time of the post-conviction relief hearing in 2014, it is unclear whether a psychological evaluation of Estes eight years earlier, prior to Estes's trial, would have resulted in testimony significantly more favorable than Gette's testimony. Both Estes's attorney and his paralegal testified that, in the run-up to trial, Estes was unwilling to testify or speak out against her husband and that Estes "was adamant that she was not a victim of domestic violence." Estes's attorney also testified that Estes had a "tough" and "stoic" demeanor that would not have presented well to the jury.
Given this testimony, Estes presented little reason to think that an interview or psychological assessment at the time of trial would have gone well, or that testimony from a psychological expert who had personally interviewed Estes would have provided the jury with greater insight above and beyond what was presented at trial. Indeed, one of Estes's own attorney experts at the post-conviction relief hearing acknowledged that presenting a "battered woman defense" would be difficult if the victim of the domestic violence denied the abuse.
Additionally, as the State notes, presenting an expert who examined Estes would have opened the door to cross-examination of the expert about Estes's long-term drug addiction. This questioning would have supported the State's theory regarding Estes's motive — i.e., that Deremer and Estes killed McKinney so that they could access the narcotics in McKinney's safe.
Finally, as the superior court recognized, there are questions about how much of Dr. Glass's testimony would have been admissible at trial. Under Alaska Evidence Rule 703, an expert witness may rely on facts or data that are otherwise inadmissible if the facts or data are the type of information that an expert in a particular field would rely on in forming their opinions. But when an expert testifies under the authority of Rule 703 about the underlying data on which the expert relied, "the expert's testimony about the factors underlying their opinion is not introduced for the truth of the matters asserted." Accordingly, Evidence Rule 705(c) directs the trial judge to prohibit the expert from testifying about underlying data or facts that are not otherwise admissible "if the danger that the expert's testimony concerning these matters will be used for an improper purpose outweighs their value as support for the expert's opinion."
Vann v. State, 229 P.3d 197, 208-09 (Alaska App. 2010).
Id. at 209 (internal quotations and alterations omitted).
Consistent with this rule, in Evans v. State, the Alaska Supreme Court affirmed the trial court's exclusion of the defendant's statements to his expert psychiatrist that he could not recall the shooting and that he had been unable to recall other acts of violence he committed when he was intoxicated. The supreme court held that the trial court could have reasonably concluded that the hearsay statements would have been used for an improper purpose — i.e., to prove the truth of what was said — and were therefore inadmissible under Alaska Evidence Rule 705(c).
Evans v. State, 645 P.2d 155, 161-62 (Alaska 1982).
Id.
In this case, some of Dr. Glass's opinions may have admissible even if based on inadmissible hearsay statements. But Estes did not testify at trial, and her attorney acknowledged that he firmly counseled her not to do so — a decision that the court found to be competent. It was not unreasonable for the court to conclude that, without Estes's testimony at trial, much of what most distinguished Dr. Glass's testimony from Gette's — namely, the underlying information she learned from Estes directly — may have been excluded because of the danger that Estes's hearsay statements would be used for an improper purpose.
We therefore conclude that the superior court did not err when it found that Estes failed to meet her burden of proving that her attorney's decision not to present expert psychological testimony was incompetent and prejudicial.
As part of her larger claim that her attorney failed to adequately present a specific-intent defense, Estes briefly touched in her post-conviction relief application on the alleged deficiency of her attorney's closing argument. She argued that her attorney failed to sufficiently explain to the jury that, because of her abusive history with Deremer, Estes may have acquiesced to driving Deremer out of fear, even though she knew (but did not share) Deremer's intent to kill. At the evidentiary hearing, Estes's attorney testified that this "domestic violence" defense was secondary to his primary, fact-based defense regarding Estes's intent, and that he feared jurors would view the two defenses as inconsistent.
The United States Supreme Court has held that the right to the effective assistance extends to closing arguments. At the same time, deference to counsel's tactical decisions in closing argument is particularly important because of the broad range of legitimate defense strategies at that stage of a case. We need not decide whether the approach that Estes's attorney took was reasonable, because the judge never addressed or issued a ruling on this claim. Thus, to the extent Estes is raising this as an independent claim of ineffective assistance of counsel, the claim is not preserved for appeal.
Yarborough v. Gentry, 540 U.S. 1, 5 (2003).
Id. at 5-6.
See Bryant v. State, 115 P.3d 1249, 1258 (Alaska App. 2005) ("Normally, an appellant may only appeal issues on which he has obtained an adverse ruling from the trial court.") (citing Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002)). --------
Conclusion
For the reasons explained in this opinion, we AFFIRM the superior court's denial of Estes's post-conviction relief application.