PUNGUK v. STATE, A-8625 (Alaska App. 10-27-2004)
Court of Appeals No. A-8625.Court of Appeals of Alaska.
October 27, 2004.
Appeal from the Superior Court, Second Judicial District, Nome, Ben J. Esch, Judge, Trial Court No. 2NO-02-046 Civ.
Dan S. Bair, Anchorage, for the Appellant.
Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
MANN HEIMER, Judge.
In 1999, Edwin Punguk was convicted of attempted first-degree sexual assault. (We affirmed his conviction in Punguk v. State, Alaska App. Memorandum Opinion No. 4348 (February 7, 2001).) In 2002, Punguk filed a petition for post-conviction relief, alleging that he had received ineffective assistance from his trial attorney. The superior court ultimately dismissed Punguk’s petition, concluding that Punguk had failed to plead a prima facie case.
Punguk now appeals the superior court’s dismissal of his petition. He asserts that he presented a prima facie case that his trial attorney incompetently failed to object to four different aspects of the State’s evidence. For the reasons explained here, we agree with the superior court that none of these four failures to object presented a prima facie case of attorney incompetence.
The four failures to object
Punguk was indicted for attempting to rape a seventeen-year-old girl, S.D. The State alleged that the assault occurred at Punguk’s mother’s house in Golovin, where Punguk was hosting an illegal drinking party. (Golovin is a dry village.)
The party originally included five people: Punguk and S.D., plus Punguk’s cousin Walter and two other young women (both under-age). The two other young women left around one o’clock in the morning, and Punguk’s cousin passed out on the couch — leaving only Punguk and S.D. still present and conscious. At this point, Punguk attacked S.D.
According to S.D., she and Punguk were together on the porch, and then Punguk grabbed her by the neck and dragged her inside the house. Punguk dragged S.D. into his mother’s bedroom, put S.D. on the bed, and then climbed on top of her. S.D. attempted to push Punguk off, but she failed. (S.D. was 5’2″ tall and weighed 111 pounds, while Punguk was 5’11” tall and weighed 280 pounds.)
Punguk then started to remove S.D.’s pants and shirt. S.D. reasoned that if she started unbuttoning her pants herself, Punguk might get off of her. She was right. When Punguk stood up to let S.D. undress, S.D. kicked him twice, then fought off his attempt to grab her again. She escaped into the living room, where she telephoned a friend to come get her.
At his trial, Punguk conceded that he had grabbed and choked S.D., but he contended that he had not been trying to sexually assault her. Rather, Punguk contended that he had used force against S.D. because S.D. went into his mother’s room and started kicking boxes and throwing things onto the floor. Punguk told S.D. to stop, but she just kept knocking more things to the floor. At this point, according to Punguk, he grabbed S.D. and restrained her, and told her that she would have to leave. S.D. managed to elude Punguk’s grasp, and then she bit him, scratched him, and kicked him in the stomach. Punguk managed to put S.D. in a choke hold, with his arm around her neck, and she eventually calmed down. At this point, Punguk agreed to let her go; she went into the living room and used the telephone.
Later, S.D. described what had happened to various people. Among these people were two of her friends, Gary Amarok and Maude Moses, and her mother, M.D. All three of these people testified at Punguk’s trial. Punguk’s challenges to his trial attorney’s performance stem from the trial attorney’s failure to object to certain aspects of these three witnesses’ testimony.
The testimony of Gary Amarok
Just after S.D. escaped from Punguk’s assault, she telephoned a friend, Gary Amarok, to come get her. However, S.D. did not wait in Punguk’s mother’s house for Amarok to arrive; rather, she left the house and met Amarok as he was on his way. Amarok testified that, when he encountered S.D., she was crying. She said that Punguk had choked her and had climbed on top of her, until S.D. kicked him off.
However, during his initial testimony, Amarok did not say that S.D. had described the assault as having a sexual component. The prosecutor tried to get Amarok to fill this gap, but the prosecutor was unsuccessful:
Prosecutor: Did [S.D.] tell you what [Punguk] was trying to do?
Amarok: No. She just told me what happened.
Prosecutor: Did she tell you how she was able to get away from him? [i.e., by pretending to voluntarily undress herself] Amarok: She said — I for[get].
In his petition for post-conviction relief, Punguk asserted that his trial attorney was incompetent for failing to object to Amarok’s testimony that S.D. told him that Punguk choked her. But, as we explained earlier in this opinion, Punguk conceded that he had choked S.D. The issue at trial was whether Punguk had choked S.D. as part of an attempted sexual assault, or whether Punguk had choked S.D. to restrain her from tearing up the house. On this disputed issue, Punguk’s trial attorney could reasonably have viewed Amarok’s testimony as favorable to Punguk’s defense — because, if Amarok’s testimony was true, S.D. failed to mention any sexual component to the choking when she spoke to Amarok only minutes after the event.
Later at Punguk’s trial, the prosecutor again called Amarok to the stand to try to get him to testify that S.D. had described the assault as having a sexual component. The prosecutor reminded Amarok that he had earlier testified that he could not remember what S.D. had said about her efforts to get away from Punguk. The prosecutor then confronted Amarok with a statement that he had made to a state trooper investigator:
Prosecutor: Do you remember . . . telling [the trooper] that when you encountered [S.D.] on the road, . . . she told you that Edwin Punguk had choked her, and that the situation had kind of ended when she had unbuttoned her pants and unzipped them, and when Edwin eased up, she kicked him and got away?
Amarok: Yeah.
Prosecutor: Okay. Did you tell the trooper that?
Amarok: Yeah.
Prosecutor: Okay. And is that what [S.D.] told you?
Amarok: That’s what [S.D.] told me.
In this appeal, Punguk asserts that his trial attorney was incompetent for failing to object to this renewed testimony from Amarok. But the record shows that Punguk’s trial attorney did
object to this testimony. The defense attorney strenuously argued that the prosecutor should not be allowed to call Amarok to the stand a second time to testify on this issue — that the prosecutor had already “had his opportunity to examine [Amarok]”. The defense attorney contended that it was unfair for the prosecutor to have a second opportunity to question Amarok on this point because, presumably, the prosecutor had known (the first time) what information he needed to elicit from Amarok, and because the prosecutor was aware of the proper procedures for impeaching or refreshing the recollection of a witness.
Moreover, even when Amarok testified this second time, he did not say that S.D. claimed that Punguk tried to rape her. Rather, according to Amarok, S.D. said that Punguk had “choked” her — an act that Punguk conceded.
For these reasons, we conclude that Punguk failed to establish a prima facie case (1) that his trial attorney failed to object to the challenged testimony or, to the extent that the trial attorney failed to object, (2) that the trial attorney’s failure to object suggested incompetence.
The testimony of Maude Moses concerning what she heard S.D. say to Punguk
Maude Moses, a friend of S.D.’s, was one of the other two young women who were present at Punguk’s house during the early part of the drinking party, but who left around one o’clock in the morning (before Punguk assaulted S.D.).
At Punguk’s trial, the prosecutor asked Moses to describe the interaction between Punguk and S.D. during the early evening (i.e., before Moses left Punguk’s house). In particular, the prosecutor asked Moses if Punguk had demonstrated any sexual interest in S.D.:
Prosecutor: [Did you ever get] the impression while you were at [Punguk’s mother’s] house that night that [Punguk] was hitting on [S.D.], or expressing any interest in her?
Moses: I don’t know. Boys like to bug [you] and, you know, they like to . . .
Prosecutor: Was [Punguk] bugging you?
Moses: No.
Prosecutor: Okay. Was he bugging [the other young woman who was there]?
Moses: No.
Prosecutor: Was he bugging [S.D.]?
Moses: Yeah.
The prosecutor then asked Moses to explain what she meant by “bugging”:
Prosecutor: What are you talking about when you say “bugging her”?
Moses: I don’t know. Just like you’re teasing. I don’t know. [Boys] do different things, you know.
Prosecutor: Is that [some] kind of flirting, or . . .?
Moses: Some do like that, yeah.
Prosecutor: I mean, is that what you’re talking about?
Moses: Yeah.
Prosecutor: Did you have the impression that that was what was going on?
Moses: Sort of, but I can’t say for sure.
The prosecutor then asked Moses to describe S.D.’s reaction to Punguk’s attentions:
Prosecutor: And how was [S.D.] responding to these attentions?
Moses: She was saying, “Don’t — don’t bug me.” “Don’t bug me” or “Don’t bother me”.
Prosecutor: She was saying that?
Moses: I — maybe not exactly [those words], but that’s the way that I took it.
In this appeal, Punguk argues that his trial attorney was incompetent for failing to raise a hearsay objection to Moses’s testimony that S.D. told Punguk not to “bug” her, or not to bother her. But this testimony was not hearsay.
The hearsay rule generally bars evidence concerning an out-of-court statement if the evidence is being offered to prove the truth of a matter asserted in that out-of-court statement. Here, the crucial aspect of the hearsay rule is that the rule does not apply to all out-of-court utterances, but only to out-of-court “statements”. An utterance is a “statement” only if it is an assertion of fact. See Alaska Evidence Rule 801(a) and the Commentary to Alaska Evidence Rule 801(a).[fn1] S.D.’s words to Punguk — “Don’t bug me” or “Don’t bother me” — were not an assertion of fact; they were a command or a request.
One might easily infer, from the fact that S.D. uttered these words, that she found Punguk’s behavior to be bothersome or offensive. But this was only an inference to be drawn from what she said. S.D.’s words were not an assertion of this fact. Thus, S.D.’s words did not constitute a “statement” for purposes of the hearsay rule — which means that Moses was not giving hearsay testimony when she related what S.D. had said to Punguk.
It follows that Punguk’s attorney could competently decide not to challenge Moses’s testimony on hearsay grounds.
The testimony of Maude Moses concerning what S.D. told her later about what happened after Moses left the house
Sometime after the assault, Moses talked to S.D. about what Punguk had done after Moses left the house. At Punguk’s trial, Moses testified that she encountered S.D. “the next day” or “some time after”, and she observed that S.D.’s eyeballs were hemorrhaging. Moses said that, initially, S.D. was reluctant to tell her what had happened:
Prosecutor: Did you have to pry it out of her?
Moses: Uh-huh. [yes]
Prosecutor: What did she tell you?
Moses: She said that [Punguk] tried to choke her.
Prosecutor: Did she tell you what else had happened?
Moses: Yeah, she said [that] he tried to rape her.
In this appeal, Punguk contends that his trial attorney was incompetent for failing to object to this testimony. For purposes of our analysis, we divide Moses’s testimony into two parts: (1) her assertion that S.D. told her that Punguk had choked her, and (2) her assertion that S.D. told her that Punguk had tried to rape her.
As we have already explained (in the section of the opinion dealing with Amarok’s testimony), Punguk conceded that he had choked S.D. Thus, there was no compelling reason for Punguk’s trial attorney to object to this aspect of Moses’s testimony.
With regard to Moses’s assertion that S.D. reported that Punguk tried to rape her, this testimony was admissible as a first complaint of sexual assault.[fn2] One could argue that, as a strict matter of chronology, S.D. first mentioned the attempted rape to Amarok. But even when Amarok took the stand the second time, he did not say that S.D. had reported an attempted rape. Rather (as we described in detail above), Amarok merely confirmed that S.D. had told him that Punguk “choked” her, and that “the situation . . . ended” when S.D. undid her pants, causing Punguk to “ease up”, so that S.D. was able to kick Punguk and get away.
One might infer from this testimony that there was a sexual component to Punguk’s act of choking S.D., but Amarok did not assert this, nor did he say that S.D. had asserted this. Thus, S.D.’s statement to Moses was apparently the first time that S.D. directly asserted to anyone that Punguk had assaulted her sexually. Because of this, Moses’s testimony on this point was admissible as a hearsay report of S.D.’s first complaint of (attempted) rape.
Moreover, even if Moses’s testimony on this point was objectionable hearsay, the testimony was short and unelaborated. Given that S.D. herself testified about the sexual assault, and was cross-examined at length about the various conflicting accounts she had given of what happened to her at Punguk’s house, Punguk has failed to establish a prima facie case that his trial attorney had a compelling need to object to Moses’s answer.
The testimony of M.D. (S.D.’s mother) concerning what S.D. said to the village health aide about how her eyes came to be injured
M.D., the mother of S.D., was the State’s first witness at Punguk’s trial. She testified that, on the night of Punguk’s party, S.D. stayed out all night. M.D. did not see her daughter until lunch the next day. At that time, M.D. observed that S.D.’s eyeballs were hemorrhaging.
When M.D. asked her daughter what had happened, S.D. “wouldn’t tell [her] anything”. M.D. urged S.D. to seek medical treatment for her eyes at the village clinic, but S.D. was not anxious to do this. It took M.D. a couple of days to convince S.D. to go with her to the clinic.
The prosecutor then questioned M.D. about what happened during their visit to the clinic:
Prosecutor: Did you stay with [S.D.] while she talked to [the health aide]?
M.D.: Yes, I did.
Prosecutor: . . . I assume that one of the two of you asked [S.D.] what happened [to her]?
M.D.: [The health aide] asked her.
Prosecutor: And did [S.D.] tell her?
M.D.: She didn’t exactly tell her the truth, I don’t think.
Prosecutor: What did she tell her?
M.D.: She was — she told her [that] she got boxed or slugged.
Prosecutor: Did she tell you who did that [to her]?
M.D.: I can’t exactly recall.
In this appeal, Punguk argues that his trial attorney was incompetent for failing to object to M.D.’s statement: “[S.D.] didn’t exactly tell [the health aide] the truth, I don’t think”. He contends that, by giving this answer, M.D. was improperly vouching for the credibility of S.D.’s later assertions that Punguk had tried to rape her. Punguk further contends that any competent defense attorney would have asked the trial judge to strike M.D.’s answer.
Because no objection was made to M.D.’s answer, it is hard to know whether this answer constituted an improper vouching for the credibility of S.D.’s ensuing complaint of attempted rape. M.D. may indeed have been asserting that she now believed her daughter’s later assertions of attempted rape. However, it is also possible that M.D. was describing, in “shorthand”, her perception of her daughter’s non-verbal behavior during the interview with the health aide. If, for instance, M.D. had observed that her daughter’s tone of voice was peculiar, or that her daughter was inexplicably pale or was refusing to make eye contact with the health aide, these observations would arguably have been a proper basis for M.D. to testify that she suspected that her daughter was offering a false or incomplete explanation of how her eyes came to be injured.
Alternatively, M.D. may simply have been saying that her daughter’s explanation for her injured eyes didn’t make sense to her. This last interpretation of M.D.’s remark is bolstered by testimony that M.D. gave later, when she was cross-examined by Punguk’s attorney. The following exchange deals with S.D.’s later visit to a doctor’s office in Nome:
Defense Attorney: Again, at the doctor, [S.D.] said this same [thing] — that she was hit in the eyes, right? Somebody punched her?
M.D.: Yes, . . . and I pulled her aside and told her [that] she’s got to start telling the truth.
M.D.’s answer during cross-examination does not suffer from the same ambiguity as her answer during direct examination. It is true that M.D.’s answer to the prosecutor’s question could be interpreted as being based on M.D.’s after-the-fact conclusion that S.D. had not offered a truthful explanation to the health aide. But M.D.’s answer to the defense attorney’s question unambiguously refers to M.D.’s contemporaneous skepticism at thetime that S.D. was offering the explanation. That is, even before M.D. had received any information suggesting that S.D. had been sexually assaulted, she nevertheless was suspicious of S.D.’s explanation for the injury to her eyes.
Interpreted in this light, M.D.’s testimony would not amount to improper vouching for the truth of her daughter’s later assertions that she had been sexually assaulted. Rather, M.D.’s testimony would simply reflect her skepticism of S.D.’s original explanation for her injuries.
Moreover, a competent defense attorney would not necessarily object to this testimony. First, it must be remembered that, even under Punguk’s version of events, S.D.’s explanation to the health aide was false. S.D. told the health aide that her eyes had been injured when someone punched her. But by the time of Punguk’s trial, both the State and Punguk agreed that Punguk had not punched S.D., but rather had choked her — although the two parties offered radically different explanations of why Punguk had done this.
Second, as is obvious from the above-quoted excerpts from M.D.’s testimony, the jury at Punguk’s trial was aware that S.D. had given conflicting accounts of what had happened to her. In particular, when S.D. visited her local health clinic and then the doctor’s office in Nome during the days immediately following the party at Punguk’s house, she did not claim that Punguk had assaulted her in a sexual manner. Against this backdrop, a competent defense attorney could reasonably conclude that M.D.’s answers might be useful for the defense. These answers could be used to support the argument that S.D. initially failed to report a sexual assault because, in truth, there had been no sexual assault, and that S.D. later claimed that she had been sexually assaulted only because of pressure exerted by her mother and others.
For all of these reasons, we conclude that Punguk failed to present a prima facie case that his trial attorney was incompetent for failing to ask the trial judge to strike M.D.’s answer to the prosecutor’s question.
Punguk’s argument concerning the cumulative impact of his trial attorney’s failures to object
Finally, Punguk argues that even if none of his trial attorney’s individual failures to object is sufficient (standing alone) to establish that he was prejudiced by his attorney’s incompetence, the four failures to object (taken together) do establish a prima facie case of prejudice.
The doctrine of “[c]umulative error requires reversal when the [cumulative] impact of errors at trial was so prejudicial that the defendant was deprived of a fair trial”.[fn3] Thus, if Punguk had shown four instances of attorney incompetence, and the remaining question was whether he had been prejudiced by this incompetence, we would need to examine the issue of cumulative error if we concluded that no single act of attorney incompetence, standing alone, required reversal of Punguk’s conviction.
But the doctrine of “cumulative error” comes into play only after an appellant has demonstrated that two or more errors occurred. There is no “cumulative error” when a party’s underlying claims of error have no merit.[fn4] Because we have rejected Punguk’s four underlying assertions of attorney incompetence, we accordingly reject his assertion of cumulative error.
Conclusion
The judgement of the superior court is AFFIRMED.
[fn1] Alaska Evidence Rule 801(a) defines “statement” as “an oral or written assertion or . . . nonverbal conduct of a person, if it is intended by the person as an assertion”. [fn2] See Greenway v. State, 626 P.2d 1060 (Alaska 1980). [fn3] Drumbarger v. State, 716 P.2d 6, 16 (Alaska App. 1986). [fn4] See MacDonald v. State, 872 P.2d 627, 659 (Alaska App. 1994).