IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE

xxxxxxxxxxx )

nee xxxxxxxxx, )

Applicant, )

)

vs. )

)

STATE OF ALASKA, )

Respondent. )

___________________________)

Superior Court No. xxxxxxxxxxxxxx

(Underlying Superior Court No. xxxxxxxxxxxxx)

TRIAL MEMORANDUM

In Support Of

APPLICATION FOR POST-CONVICTION RELIEF

CERTIFICATE

I certify that this document and its attachments do not contain(1) the name of a victim of a sexual offense listed in AS 12.61.140 or (2) a residence or business address or telephone number of a victim of or witness to any offense unless it is an address used to identify the place of the crime or it is an address or telephone number in a transcript of a court proceeding and disclosure of the information was ordered by the court.

Applicant, by her counsel, respectfully submits the following facts, points, and authorities in support of her previously filed Application for Post-Conviction Relief. Evidence on the Application will be taken beginning January 5, 1997.

TABLE OF CONTENTS

INTRODUCTION ................................................ 5

I. LEGAL STANDARDS ......................................... 7

A. Statutory and Rule 35.1 Provisions ................. 7

B. Ineffectiveness Standards .......................... 7

1. U.S. Constitution ............................. 7

2. Alaska Constitution ........................... 8

3. "Tactical" justifications ..................... 9

II. INSTANCES OF UNJUSTIFIABLE INEFFECTIVENESS ............. 10

A. Incompetent to Handle "Paper" Case ................. 10

B. Failure to Communicate with Client Prior to Trial .. 12

C. Failure to Conduct Factual Investigation ........... 15

D. Failure to Learn the Facts of the Case ............. 17

E. Ineffective Opening Statement ...................... 19

F. Failure to Present Exculpatory Evidence:

Julie Matsko & John Karasti ........................ 21

G. Failure to Present Evidence of Only Motive Theory .. 23

H. Failure to Move for Severance of Defendants ........ 26

1. Conflicting defenses .......................... 28

2. Prejudicial evidence admissible only

against co-defendant .......................... 29

3. Technical evidence admissible only against co-defendant .......................... 30

4. Risk of guilt by association .................. 32

I. Failure to Obtain Limiting Instructions ............ 33

J. Failure to Obtain No-Blame Agreement ............... 34

K. Failure to Cross-Examine and Accuse Co-defendant ... 34

L. Neither Undercut Impact of State's Documentary Evidence, Nor Introduced Exculpatory Documents ..... 37

L-1.Incompetent and/or Inadequate Confrontation ........ 39

M. Failure to Object to Admission of Extensive,Inadmissible, Prejudicial Evidence ................. 41

N. Neither Prepared Client for, Nor Effectively Presented, Her Testimony at Trial .................. 44

O. Failure to Present Corroborating Witnesses ......... 47

P. Failure to Make MJOA on Count III: Insufficient as a Matter of Law ................................. 49

1. Relevant Facts ................................ 49

2. Accurately recording actual transactions does not violate the statute .................. 50

Q. Failure to Request Unanimity Instruction: Count II 53

1. Principles of law ............................. 53

2. Application of law to facts ................... 54

R. Failure to Request Unanimity Instruction: Count III 58

1. Principles of law ............................. 58

2. Application of law to facts ................... 58

S. Failure to Request Instruction on Essential Element of Aggregation re Count II ................. 59

T. Ineffective Closing Argument ....................... 60

III. PREJUDICE CAUSED BY UNJUSTIFIABLE INEFFECTIVENESS ..... 62

A. Incompetent to Handle "Paper" Case ................. 62

B. Failure to Communicate with Client Prior to Trial .. 62

C. Failure to Conduct Factual Investigation ........... 63

D. Failure to Learn the Facts of the Case ............. 63

E. Ineffective Opening Statement ...................... 64

F. Failure to Present Exculpatory Evidence:

Julie Matsko & John Karasti......................... 65

G. Failure to Present Evidence of Only Motive Theory .. 66

H. Failure to Move for Severance of Defendants ........ 68

I. Failure to Obtain Limiting Instructions ............ 69

J. Failure to Obtain No-Blame Agreement ............... 70

K. Failure to Cross-Examine and Accuse Co-defendant ... 71

L. Neither Undercut Impact of State's Documentary

Evidence, Nor Introduced Exculpatory Documents ..... 72

L-1.Incompetent and/or Inadequate Confrontation ........ 73

M. Failure to Object to Admission of Extensive, Inadmissible, Prejudicial Evidence ................. 74

N. Neither Prepared Client for, Nor Effectively Presented, Her Testimony at Trial .................. 75

O. Failure to Present Corroborating Witnesses ......... 76

P. Failure to Make MJOA on Count III: Insufficient as a Matter of Law ................................. 77

Q. Failure to Request Unanimity Instruction: Count II 79

R. Failure to Request Unanimity Instruction: Count III 81

S. Failure to Request Instruction on Essential Element of Aggregation re Count II ................. 82

T. Ineffective Closing Argument ....................... 84

CONCLUSION .................................................. 85

INTRODUCTION

Applicant was originally charged with scheme to defraud, second-degree theft, and falsifying business records. Also charged was applicant's mother,  The state's theory was that applicant, as receptionist, and Ms. Poff, as office manager, steadily embezzled cash payments made by patients to their employer, the Turnagin Dental Center, in 1994. Applicant consistently denied that she was involved in such activity. This Court granted a motion for judgment of acquittal as to the scheme to defraud count, and submitted the other counts to the jury for decision. (TR-Tr. 1907) ⁽¹⁾ Applicant was convicted of both offenses. She was sentenced to serve one year in prison and 5 years on probation, and to pay over $36,000.00 in restitution.

Applicant timely filed a notice of appeal. She is free on bail pending appeal.

Applicant filed this Application for post-conviction relief in the superior court, due to the ineffective assistance provided to her by her appointed trial counsel. Attorney Michael N. White, who will be testifying for applicant as an expert witness at the hearing on her Application, concludes that she was denied effective assistance of counsel prior to, and at every stage of, trial proceedings in this case.

Ms. xxxxxxxx not only received less than effective assistance of counsel, in my opinion she received no assistance of counsel at all. The trial that Ms. xxxxxx had was tantamount to an extended plea of guilty, produced by an ineffective defense attorney, and forced from a defendant who always asserted her innocence, and who clearly wanted, and was entitled to, the effective assistance of counsel in defending herself. Instead of help in preparing and presenting a defense, she was functionally abandoned by an attorney who conducted no investigation, possessed no experience in the type of case she faced, interviewed no witnesses, and in essence did no more than appear at trial and ask a few aimless, sometimes counterproductive, questions.

Considered together or separately, the failures of defense counsel fall far below the standard of practice of the average Alaskan criminal defense attorney, a standard which I have observed for the last 18 years as a prosecutor, judge, and defense attorney.

Considered together or separately, the failures of defense counsel repeatedly and greatly prejudiced the defendant, creating numerous reasonable doubts that, but for his ineffectiveness, the result of Ms. xxxxxx's trial would have been different.

[Affidavit of Michael N. White, previously filed, ¶¶ 11-13] ⁽²⁾

Significantly, having provided this non-representation, and caused applicant's convictions by the jury, trial counsel advised her not event to file an appeal, but just to go ahead and serve her time in prison. [Burger Depostion, 134]

I.

LEGAL STANDARDS

A. Statutory and Rule 35.1 Provisions.

Applicant is entitled to post-conviction relief if she proves that her convictions were obtained "in violation of the constitution of the United States or the constitution or laws of Alaska." Alaska Criminal Rule 35.1(a)(1); AS § 12.72.010(1). The "laws of Alaska" include Criminal Rules promulgated by the Supreme Court, as well as the Alaska Constitution and statutes. Price v. State, 647 P.2d 611 (Alaska App. 1982).

The burden of proving ineffective assistance is on applicant. State v. Jones, 759 P.2d 558, 569 (Alaska App. 1980). Applicant bears the burden of proving all factual assertions by clear and convincing evidence. Rule 35.1(g); AS § 12.72.040. On the other hand, the essential elements of ineffectiveness -- incompetence and prejudice -- need only be proved by a preponderance of the evidence. Arnold v. State, 685 P.2d 1261, 1264 (Alaska App. 1984). ⁽³⁾

B. Ineffectiveness Standards.

1. U. S. Constitution.

The Sixth Amendment to the United States Constitution guarantees that the accused in a criminal case shall receive the effective assistance of counsel. Powell v. Alabama, 308 U.S. 444 (1940). This Sixth Amendment guarantee applies to the states through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963).

An attorney is ineffective when he performs "below an objective standard of reasonableness;" if that deficiency creates a "reasonable probability" that, but for his errors, the outcome of the trial would have been different, a new trial is required. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Accord Thompson v. Calderon, 120 F.3d 1045 (9^th Cir.) (en banc), cert. denied, 118 S.Ct. 14 (1997); Johnson v. Baldwin, 114 F.3d 835 (9^th Cir. 1997); Baylor v. Estelle, 94 F.3d 1321 (9^th Cir. 1996); Sager v. Maass, 907 F.Supp. 1412 (D. Or.), aff'd, 84 F.3d 1212 (9^th Cir. 1996); Griffin v. McVicar, 84 F.3d 880 (7^th Cir. 1996); U.S. v. Span, 75 F.3d 1383 (9^th Cir. 1996); Byrd v. U.S., 614 A.2d 25 (D.C.Ct.App. 1992); Nichols v. Butler, 953 F.2d 1550 (11^th Cir. 1992) (en banc); Harris v. Reed, 894 F.2d 871 (7^th Cir. 1990); U.S. v. Swanson, 943 F.2d 1070 (9^th Cir. 1991).

2. Alaska Constitution.

Art. I, § 11, Alaska Constitution, also guarantees the effective assistance of counsel to one accused of crime. Indeed, the state constitutional right has been expanded to include circumstances in which the Sixth Amendment would offer no protection. Compare Roberts v. State, 458 P.2d 340, 342-45 (Alaska 1969)(right to counsel when handwriting exemplars taken) with Gilbert v. California, 388 U.S. 263 (1967)(Sixth Amendment inapplicable); compare Blue v. State, 558 P.2d 636, 640-43 (Alaska 1977) (right to counsel at pre-indictment line-up) with

Kirby v. Illinois, 406 U.S. 682 (1972) (Sixth Amendment inapplicable).

The state right to counsel is denied whenever the trial attorney (1) fails to perform "at least as well as a lawyer of ordinary training and skill in criminal law," and (2) there is at least a reasonable doubt that such ineffectiveness contributed to the conviction. Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974). Accord State v. Simpson, ___ P.2d ___, slip op. No. 1550 (Alaska App. September 26, 1997).

3. "Tactical" justifications.

In both state and federal courts, competence of counsel is presumed, and a further presumption is made that an attorney's actions were "motivated by sound tactical considerations." Jones, 759 P.2d, 569. Generally speaking, the presence of a legitimate tactical justification precludes success on the first prong of ineffectiveness analysis. Id.

There are, however, two important exceptions to the "tactical" justification rule. First, "a mistake made out of ignorance rather than from strategy cannot later be validated as being tactically defensible." Jones, 759 P.2d, 569 (emphasis added); Arnold, 685 P.2d 1265-67; U.S. v. Span, 75 F.3d 1383, 1390 (9^th Cir. 1996). Second, if the purported "tactic" is objectively unreasonable -- that is, one which "no reasonably competent attorney would have adopted under the circumstances" -- ineffectiveness will be found. Jones, 759 P.2d, 569-70.

II.

INSTANCES OF UNJUSTIFIABLE INEFFECTIVENESS

A. Incompetent to Handle a "Paper" Case.

Because applicant was adamant in her statements of innocence, trial counsel realized "early on" this case would be going to trial. [CH-Tr. 8] ⁽⁴⁾ He also realized his "office has problems representing a case of this complexity... It's a very complex case." [Id., 91-92] Although contested by applicant, trial counsel claims he tried to refer her to private counsel, who would be better able to defend her type of case. [Id.] He had never tried a "paper" case before, since he always plead them out; his last "paper" case plea was 3-4 years before he represented applicant. [Id., 5-6]

Trial counsel admitted that no one in his office was expert at defending "paper" cases, particularly a "complicated" one like applicant's. [CH-Tr. 80] Although he had the case for at least six months prior to trial, trial counsel testified that he did not organize it the way he should have. [Id.] He could not devote all of his time to the case, because he had a first-degree murder case trailing applicant's trial. [Id. 155]

Despite his admitted deficiencies, trial counsel did virtually nothing to educate himself in the defense of embezzlement cases. He read the statutes, and asserted he read the Alaska case-law pertaining to them. [CH-Tr. 6] However, a review of the scant Alaska case-law reveals little, if anything, even arguably relevant to the defense of the charges against applicant. [Affidavit of S. Cline, and Attachments] Of course, an hour on WESTLAW would have produced important, on-point authority from other courts construing similar statutes. See Sections II.P., Q., R. & S., infra.

But trial counsel did no such research; he read no treatises on defense of white collar cases; he even failed to consult with other attorneys who were experienced in such cases; and he cannot explain why he failed to do so. [CH-Tr. 7, 92] Although he was faced with more than 2,000 pages of "paper" discovery, trial counsel never even considered retaining an expert to help him organize, understand, and analyze them. [CH-Tr. 18]

Trial counsel plainly violated the first rule of ethical and effective representation --

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Alaska Rule of Professional Conduct, Rule 1.1(a).

In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.

Comment to Alaska Rule of Professional Conduct, Rule 1.1(a).

Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence.

Comment to Alaska Rule of Professional Conduct, Rule 1.1(a).

B. Failure to Communicate with Client Prior to Trial.

Applicant recalls no substantive communications about the facts and possible defenses with her counsel prior to trial, and reports great difficulty in communicating with him. [Affidavit of Mindi Robuck] She received many promises from counsel about the in-depth investigation he would conduct and the hours they would spend together preparing the case before trial [CH-Tr. 8-9, 18], all of which were broken. [Affidavit of Mindi Robuck]

Trial counsel claims there was more communication prior to trial, but he has no specifics to offer. He neither logs telephone calls, nor keeps a personal calendar. [CH-Tr. 157-58] His case file contains only two single line entries regarding meeting applicant pre-trial on two occasions many months after he received the case. [CH-Tr. 9-14, 157-58 & CH Deposition Ex. 2] His larger claims are refuted by the fact that there is not a single note or memorialization by him of any factual information he purportedly elicited from his client prior to trial.

Indeed, the only memorialized communications between counsel and client consist of notes written by applicant to counsel, trying to explain the case and possible defenses, which were passed during trial! [CH-Tr. 151-71] As to these, trial counsel appears to have felt put upon by his client's final efforts to tell him things it was his duty to have learned from her long before trial. [CH-Tr. 154]

Although counsel was unfamiliar with this "paper" case, his client worked in the office for years, and could have greatly assisted his understanding of the records and preparation of defenses. Yet trial counsel never provided her with copies of, nor requested her reactions to, discovery. [CH-Tr. 14-15] Indeed, the first time he showed her most of the records purporting to document the crimes charged against her was as she sat on the witness stand, testifying at her trial. [Id., 17-18]

"A lawyer shall keep a client reasonably informed about the status of a matter undertaken on the client's behalf and promptly comply with reasonable requests for information. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Alaska Code of Professional Conduct, Rule 1.4(a)&(b).

As soon as practicable, defense counsel should seek to determine all relevant facts known to the accused. In doing so, defense counsel should probe all legally relevant information without seeking to influence the direction of the client's responses.

ABA Standards: The Defense Function, § 4-3.2(a) (3d ed. 1993).

The defense attorney's obligation to communicate with his client, before and during trial, lies at the core of the constitutional right to effective assistance of counsel. See Powell v. Alabama, 287 U.S. 45, 69 (1932) (accused entitled to "guiding hand of counsel" in preparing for, and at, every stage of trial); Geders v. U.S., 425 U.S. 80 (1976) (court cannot preclude accused's consultation with counsel during overnight recess). Trial counsel wholly abdicated this responsibility.

Moreover, the client is often the seminal source of factual information necessary to understanding the charges, directing investigation, and/or preparing defenses.

The client is usually the lawyer's primary source of information for an effective defense. An adequate defense cannot be framed if the lawyer does not know what is likely to develop at trial... In criminal litigation, as in other matters, information is the key guide to decisions and action. The lawyer who is ignorant of the facts of the case cannot serve the client effectively.

Commentary to § 4-3.2, ABA Standards: The Defense Function, 152 (3d ed. 1993).

There can be no "tactical" justification for failing ever to conduct a comprehensive interview of one's client as part of the pre-trial preparation of a case. Any such purported "tactic" is objectively unreasonable -- that is, one which "no reasonably competent attorney would have adopted under the circumstances." Jones, 759 P.2d, 569-70. For his part, trial counsel does not claim such an excuse.

C. Failure to Conduct Factual Investigation.

The American Bar Association has long recognized a criminal defense attorney's duty to investigate the case.

Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.

ABA Standards for Criminal Justice: Prosecution and Defense Function, Standard 4-4.1(a) (3d ed. 1993). Investigation is crucial, because "[f]acts form the basis of effective representation. Effective representation consists of much more than the advocate's courtroom function per se." Commentary to Standard 4-4.1, 181.

There is, of course, an intimate connection between the thoroughness of an attorney's pretrial investigation and the effectiveness of his advocacy at trial.

Effective investigation by the lawyer has an important bearing on competent representation at trial, for without adequate investigation the lawyer is not in a position to make the best use of such mechanisms as cross-examination or impeachment of adverse witnesses at trial. The lawyer needs to know as much as possible about the character and background of witnesses to take advantage of impeachment. The effectiveness of advocacy is not to be measured solely by what the lawyer does at the trial; without careful preparation, the lawyer cannot fulfill the advocate's role. Failure to make adequate pretrial investigation and preparation may also be grounds for finding ineffective assistance of counsel.

Commentary to Standard 4-4.1, 183.

Alaska law is in accord. "Ideally, a thorough pretrial investigation should be conducted by the defense in all criminal cases." State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988). Defense counsel's failure promptly to investigate and thoroughly to prepare will often deny the accused his constitutional right to the effective assistance of counsel. See Powell v. Alabama, 287 U.S. 45 (1932) (reversed); Arnold v. State, 685 P.2d 1261, 1265-67 (Alaska App. 1984) (reversed). See also Jackson v. State, 750 P.2d 821,825-27 (Alaska App. 1988) ("clearly inadequate" investigation held harmless).

Even under the more forgiving federal standard, the "adversarial testing process" "generally will not function properly unless defense counsel has done some investigation into the prosecution's case and into various defense strategies. '[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (holding counsel ineffective), quoting Strickland v. Washington, 466 U.S., 691. Accord Thompson v. Calderon, 120 F.3d 1045, 1053-56 (9^th Cir.) (en banc), cert. denied, 118 S.Ct. 14 (1997); Johnson v. Baldwin, 114 F.3d 835, 838-40 (9^th Cir. 1997); Baylor v. Estelle, 94 F.3d 1321, 1323-25 (9^th Cir. 1996); Harris v. Reed, 894 F.2d 871, 877-78 (7^th Cir. 1990).

Trial counsel admitted that he conducted no investigation in this case -- he interviewed no prosecution witnesses, no potential defense witnesses, and consulted no experts. [CH-Tr. 11-12, 21] The Commentary to ABA Standard 4-4.1, 182, explains that defense counsel must locate witnesses, secure their cooperation, and interview them, sometimes more than once. By contrast, here trial counsel never even tried to interview any prosecution or potential defense witness. Arnold, 685 P.2d, 1266 (no witnesses interviewed).

Although investigative resources were available at his office, trial counsel decided they would be better applied to other, unidentified cases. [CH-Tr. 11-12] However, he identified no particular investigations that he considered and rejected, and gave no specific reasons for his circular conclusion that no investigation at all was necessary. Here, there is no tactical claim or excuse. The real reason trial counsel conducted no investigation was that he had failed so completely to familiarize himself with the case, that he didn't know what to investigate.

D. Failure to Learn the Facts of the Case.

Of course, one of the purposes of communicating with one's client and conducting a pretrial investigation is to learn the facts of the case. These facts are the building blocks of defense theory and trial strategy. Alaska appellate courts have held that trial counsel's failure sufficiently to familiarize himself with the facts of felony cases constitutes ineffective assistance. Arnold, 685 P.2d, 1266-67 ("minimal knowledge of the facts"); Jackson, 750 P.2d, 824-26.

Trial counsel's deposition reflects his focus was on a murder case scheduled to start after applicant's trial. [CH-Tr. 155] By his own admission, he had not even selected a general defense theory prior to opening statement [id., 27], nor had he figured out how he would combat the purported "smoking gun" Arbuckle transactions. [Id., 71] As he admitted at the end of the trial, he was unaware of just which documents his client was supposed to have falsified for Count III [TR-Tr. 1896; CH-Tr.30-31], yet he never sought a Bill of Particulars prior to trial. He did not understand the most obvious bias/motive theory relevant to the complainant's testimony, even as he ineffectively attempted to raise it at trial. [CH-Tr. 109-13]

There can be no conceivable "tactical" justification for beginning and conducting a felony trial without even some ability to identify, and a rudimentary understanding of, the fundamental "facts" of the case. Such a claim -- although not made here -- is objectively unreasonable -- that is, one which "no reasonably competent attorney would have adopted under the circumstances." Jones, 759 P.2d, 569-70.

As for his failure to request a Bill of Particulars on Count III, trial counsel told this Court no such procedure was available in Alaska state courts. [TR-Tr. 1898] Wrong. See Alaska Criminal Rule 7(f). "[A] mistake made out of ignorance rather than from strategy cannot later be validated as being tactically defensible." Jones, 759 P.2d, 569; Arnold, 685 P.2d 1265-67; Span, 75 F.3d, 1390. Plainly such a motion, if made here, would have been granted, in light of vast breadth of the indictment's language and the dozens of documents to which it could potentially apply. On deposition, trial counsel admitted his error, and offered no "tactical" excuse. [CH-Tr. 31-32]

E. Ineffective Opening Statement.

Because he failed to interview his client, failed to investigate the case, and failed to learn the facts, trial counsel was left with little of substance to say in his opening statement. [TR-Tr. 422-31] See Johnson v. Baldwin, 114 F.3d 835, 838-40 (9^th Cir. 1997). Although his client would testify, trial counsel failed to present the defense case theory -- because it was still "evolving." [CH-Tr. 27] This evolution, however, was necessitated solely by his failure to prepare, not due to any case-specific need to maximize flexibility.

Trial counsel failed even to hint that the defense would ultimately blame the complainant, Dr. Ingrim, as the real embezzler, although he knew at some point in trial he would have to do so. [CH-Tr. 28-29] There was no tactical reason for this omission. [CH-Tr. 29]

Similarly, he failed to proffer evidence of the complainant's motive falsely to accuse applicant due to her threat to bring a wage claim for unpaid overtime. Trial counsel failed to proffer this evidence because, as he sat in trial, he failed to understand its factual basis and its importance to the case. [CH-Tr. 109-13] Incredibly, he non-opposed a pretrial protective order excluding this critical defense evidence. [CH-Tr. 64-65]

Additionally, trial counsel had developed no strategy at all for dealing with the "smoking gun" Arbuckle transactions. [CH-Tr. 71] Accordingly, during his opening, trial counsel wholly ignored this potentially determinative evidence [id.], although the prosecutor led off his opening statement by detailing it. [TR-Tr. 399-401] Of course, had counsel worked with his client prior to trial, he would have been able to proffer a direct defense to the Arbuckle allegations. [CH-Tr. 142-43]

The importance of an effective defense opening statement cannot be overestimated.

The primary purpose[s] of the opening statement for the defense [are] to provide a persuasive interpretation of the evidence and to convince the trier of fact of the defendant's innocence. Any defense attorney who views the opening statement as a neutral recitation of the facts might as well pack up the client's bags and say "goodbye." The opening is a chance to attack the government's theory and climb out of the hole created by the government's opening statement. It also provides a real opportunity to put the government on the defensive, and to take an early lead in the case by removing the sting and casting the testimony of the witnesses in a favorable light.

II Criminal Practice Institute Trial Manual, 24.5 (D.C. Bar Assn., Young Lawyers Section 1992).

Learned treatises and empirical studies uniformly conclude that the opening statement is often the determinative event in a trial. See A. Julien, Opening Statements, § 1.01, 1-2 (Callaghan & Co. 1980-86) ("An opening statement can win the trial of a lawsuit... Jurymen... have been prone to say that once the opening statements were made there was nothing left to the case."); T. Mauet, Fundamentals Of Trial Techniques, 56 (1^st ed. 1980); Marshall, The Telling Opening Statement, Prac. Law., 26-27, Oct. 1973; Jossen, Opening Statements: Win It In Opening, The Docket, Vol. 10, No.2, at 1, 6 (NITA Spring 1986) (studies show 80% of jurors ultimately decide the case the same way they would if asked to do so immediately after opening statements).

The Court of Appeals has recognized that deficiency in defense counsel's opening statement may contribute to a conclusion of ineffectiveness. Gorz v. State, 749 P.2d 1349, 1351-52 (Alaska App. 1988). Here, unlike in Gorz, the defense has shown both that no legitimate "strategy" supported trial counsel's failure to give a substantive and effective opening, and that this failure contributed to applicant's conviction. See Section III.E., infra; People v. Lee, 541 N.E.2d 747, 761-62 (Ill.App. 5 Dist. 1989) (ineffectiveness, including deficient opening statement, requires new trial).

F. Failure to Present Exculpatory Evidence:

Julie Matsko & John Karasti.

At some point during trial, defense counsel realized he would have to lay the blame for the missing money on the complainant, Dr. Ingrim. Discovery had provided highly exculpatory evidence in support of this claim. A recorded statement from Julie Matsko, herself related to an Alaska State Trooper, reported that she had been fired by Dr. Ingrim the year before the alleged thefts, after she had expressed concerns to him about how cash receipts were accounted for in the office. Her statement further revealed that the IRS had assigned an Investigator from its Criminal Division to look into possible tax fraud by the complainant in the way cash was accounted for in his business. Finally, the statement revealed that, a year later during the xxxxxx/Poff investigation, the IRS investigator was again looking into Dr. Ingrim's business practices. See Burger Deposition Ex. 7 (Statement of Julie Matsko).

Trial counsel did nothing to pursue these subjects, made no effort to find Julie Matsko and prepare or present her testimony, and made no inquiries nor issued subpoenas relative to the IRS investigation of the complainant.

Trial counsel offered no excuse for this neglect of potentially critical exculpatory evidence. Instead, he testified that he did not know why he failed to pursue these subjects. [CH-Tr. 164]

Similarly, John Karasti is the patient who made the single biggest cash payment in 1994 -- $1,300.00. The complainant denied receiving this money, and claimed he had never taken more than $400 in cash from the business on any occasion. [TR-Tr. 1026-28, 1081-85] Applicant, by contrast, testified that she specifically recalled seeing Mr. Karasti hand $1,300.00 in cash directly to the complainant, after which she recorded the payment in the patient chart. [TR-Tr. 1669-72]

On deposition, trial counsel admitted that he made no effort to locate John Karasti, although the witness could have seriously impeached the complainant and corroborated applicant as to who got the cash from the largest cash transaction in the relevant time period. [CH-Tr. 145] Trial counsel further conceded that he had no reason for this failure, and that he was not claiming any "tactic" justified his neglect. [CH-Tr. 146]

Where, as here, trial counsel fails to present exculpatory and/or corroborating testimony from witnesses other than his client, ineffectiveness is frequently found, even under the more stringent federal standard. See, e.g., State v. Simpson, ___ P.2d ___, slip op. No. 1550 (Alaska App. 1997); Thompson v. Calderon, 120 F.3d 1045 (9^th Cir.) (en banc), cert. denied, 118 S.Ct. 14 (1997); Baylor v. Estelle, 94 F.3d 1321 (9^th Cir. 1996); Byrd v. U.S., 614 A.2d 25 (D.C.Ct.App. 1992); Harris v. Reed, 894 F.2d 871 (7^th Cir. 1990).

G. Failure to Present Evidence of Only Motive Theory.

Before the complainant ever alleged that applicant had been embezzling, he fired her over what amounted to a personality conflict between his then-fiancee and applicant and her mother. At the time she was fired, applicant informed the complainant she would bring a wage-and-hour claim against him for unpaid overtime. [TR-Tr. 1717] This intention was followed up by a letter from a law firm consulting with applicant, which demanded disclosure of applicant's and her mother's timesheets for 1994. Burger Deposition, Ex. 18. Subsequent to the complainant's receipt of this letter, he first made a report to the police, alleging that applicant and her mother had been embezzling money from him.

Of course, evidence of the complainant's bias or motive to fabricate is admissible. ARE 613. "The bias of a witness toward a party is always relevant to the jury's consideration of the case; it is never collateral." McIntyre v. State, 934 P.2d 770, 773 (Alaska App. 1997)(witness involved in same-sex romance with accused's wife). "The trial court must be particularly solicitous toward cross-examination that is intended to reveal bias, prejudice, or motive to testify falsely." Wood v. State, 837 P.2d 743, 745 (Alaska App. 1992). Accord Kameroff v. State, 926 P.2d 1174, 1179-80 (Alaska App. 1996)(witness on probation).

The accused's right to examine on, and to introduce evidence of, bias and motive is of constitutional dimension. See, e.g., Davis v. Alaska, 415 U.S. 308 (1974); Chambers v. Mississippi, 410 U.S. 284 (1973); Wood, 837 P.2d, 745-46.

Trial counsel acknowledges that this was the only specific motive-to-lie theory that he offered the jury. [CH-Tr. 164-65] Yet, he failed to introduce the letter at trial. [Id., 171-74] He never even contacted the labor law attorney his client had consulted, nor called him as a witness. [Affidavit of Thomas Daniel, Esq.]

Had he done so, trial counsel would have learned, and could have proven, applicant and her mother had meritorious claims totaling approximately $17,000.00 against the complainant. [Affidavit of Thomas Daniel, Esq.] He would have learned, and could have proven, that the substance of the claim was that Dr. Ingrim had paid for overtime hours at regular wage rates, instead of at the statutorily required time and one-half rate. [Id.] He would have learned, and could have proven, that, notwithstanding his claims that applicant and her mother had removed all kinds of business records when they left employment, the complainant's attorney was able to locate and produce the 1994 timesheets for applicant and co-defendant Poff on demand. [Id.]

Trial counsel admitted he had no tactical reason for failing to secure and present this available, admissible, exculpatory evidence at trial. [CH-Tr. 153-56, 173, 175] Trial counsel also acknowledged that his failures on this issue enabled the prosecutor and complainant to turn the overtime issue around, making it appear like a frivolous and fabricated effort to shift blame. [CH-Tr. 174]

When a trial court precludes such examination or evidence, patent reversible error occurs. McIntyre, 934 P.2d, 773-74; Kameroff, 926 P.2d, 1179-80; Wood, 837 P.2d, 746-47. A fortiori, defense counsel's failure even to attempt to present bias/motive evidence is ineffective. This aspect of the case is controlled by the recent opinion in State v. Simpson, ___ P.2d ___, slip op. No. 1550 (Alaska App. 1997), which held an attorney's failure to master and present exculpatory impeachment material at trial to constitute ineffective assistance. Accord Thompson v. Calderon, 120 F.3d 1045 (9^th Cir.) (en banc), cert. denied, 118 S.Ct. 14 (1997) (failure to present testimony of biases of two jailhouse snitches).

H. Failure to Move for Severance of Defendants.

Trial counsel admits that the single worst thing going against his client's chances of acquittal was the fact that she was jointly tried with her mother -- this was the "paramount problem" for the defense. [CH-Tr. 36-37] Trial counsel further agrees that this joint trial resulted in unfair prejudice to applicant. [CH-Tr. 53-54, 60] Yet, trial counsel never even requested severance of defendants from the Court; neither prior to, nor during, trial.

Trial counsel now admits that he erred by failing to move for severance during trial, particularly as it became clearer and clearer that co-defendant's counsel was affirmatively arguing applicant's guilt. [CH-Tr. 63, 104-05] This concession is well-taken, and any competent attorney would have requested such relief. Trial counsel did not, and offers no "tactical" excuse for this failure.

On the other hand, trial counsel claims he failed to seek severance prior to trial, because, despite supposedly devoting hours to research on multiple days, he could find no legal basis for such a request. [CH-Tr. 53] The veracity of this after-the-fact rationalization is doubtful for at least four reasons.

First, trial counsel gave a completely different explanation to applicant, her fiancee, and her father prior to, during, and after trial. Trial counsel told them, falsely, that he had filed a motion to sever, which the state opposed, and that the judge had denied the motion. [Affidavits of Mindi Robuck, David Robuck, and Mick xxxxxx]

Second, trial counsel's file contains not a single scrap of paper, nor even a single case citation, regarding severance of defendants. [CH-Tr. 53-54]

Third, trial counsel did file a facially frivolous pleading in the case. He filed a motion to dismiss, due to purportedly insufficient evidence in the grand jury. As he admitted, it was a routine motion, and all he had to do was change the client name and the charges; he was unable to explain how, in light of the Arbuckle testimony, the indictment was based on insufficient evidence. [CH-Tr. 89-90, 141-42] Plainly the severance motion had much more merit; but it also would have required several hours of research and writing.

Fourth, there were abundant legal grounds for requesting severance, which would have been discovered by counsel if he had made even a slight research effort. Alaska Criminal Rule 14 itself explicitly empowers trial courts to grant separate trials to defendants "[i]f it appears that a defendant... is unfairly prejudiced... by a joinder of... defendants... for trial together." Remarkably, trial counsel asserts that unfair prejudice is not a sufficient legal basis for severance. [CH-Tr. 53-54]

The United States Supreme Court recently held that severance under Fed.R.Crim.Proc. 14 (comparable to Alaska Criminal Rule 14) should be granted where "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. U.S., 506 U.S. ___, 113 S.Ct. 933, 938 (1993)(emphasis added). Trial counsel asserts his "research" never led him to discover this recent, helpful Supreme Court precedent. [CH-Tr. 57]

Under Zafiro, the defense need not prove that a specific trial right will be hurt or an unreliable verdict will result. The standard is "serious risk" of either impermissible consequence. Prosecutorial efforts to apply a post-trial requirement of "manifest," "clear," "fair trial den[ying]" prejudice must fail in light of the dictate of Zafiro.

Moreover, appellate case-law refusing to reverse denials of severance is a function of the huge discretion delegated to trial judges. The decided cases do not determine when severance should, or could, be granted -- they simply identify the abuse of discretion line. [CH-Tr. 56, 62] By contrast, the trial judge must exercise his broad discretion in balancing "the advantage and economy of a joint trial to the administration of justice against possible prejudice to a defendant." U.S. v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971). Circumstances in which severance is appropriate fall into a number of different categories, which will be discussed below.

1. Conflicting defenses.

In Zafiro, 113 S.Ct., 938-39, the U.S. Supreme Court held that the presentation of conflicting, mutually exclusive defenses by co-defendants does not alone require severance. Alaska law, settled at the time of applicant's trial, is to the contrary. Abdulbaqui v. State, 728 P.2d 1211, 1219 (Alaska App. 1986) (severance required where defenses are mutually exclusive); Miller v. State, 778 P.2d 593 (Alaska App. 1989) (same).

Trial counsel realized, well before trial, that the interests of his client and the co-defendant would be "divergent." [TR-Tr. 25-26] This prophecy was realized at trial, and, unlike in Abdulbaqui and Miller, applicant's co-defendant testified, introduced evidence implicating applicant, and specifically argued her guilt in closing argument. Compare Abdulbaqui, 728 P.2d, 1219 & n.1; Miller, 778 P.2d, 595-96.

Had trial counsel himself told the jury in closing argument that there was no reasonable doubt about applicant's guilt, then ineffective assistance and a denial of due process would be plainly established. U.S. v. Swanson, 943 F.2d 1070 (9^th Cir. 1991). Here, it was co-defendant's counsel who made the claim, and trial counsel who grievously failed to prevent or to cure it by requesting and obtaining severance of defendants.

2. Prejudicial evidence admissible only against co-defendant.

Where evidence concerning one or more defendants would not be admissible in a separate trial of the moving defendant, and when a lack of cross-admissibility creates an appreciable risk of actual prejudice from joinder, severance is warranted. The Zafiro Court came to the same conclusion, describing, as an example of the "serious risk" which could necessitate severance, cases "when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant." Zafiro, 113 S.Ct., 938. Accord U.S. v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971) (severance required); U.S. v. Sampol, 636 F.2d 621, 643-48 (D.C. Cir. 1980) (severance required); U.S. v. Satterfield, 548 F.2d 1341, 1346 (9th Cir. 1977) (severance required). Compare Miller, 778 P.2d, 596-97 (no severance when co-defendant's bad acts would be admissible against defendant in separate trial).

Simply stated, "a codefendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty." Zafiro, 113 S.Ct., 938. That risk is at its gravest where special circumstances -- e.g., family, business or social bonds -- connect the codefendants. See Sampol, 636 F.2d 621, 643-45.

In this case, joinder resulted in introduction of evidence -- admissible only against co-defendant Poff -- that Poff, by her own admission, owed the complainant $500, beyond the sums alleged in the indictment, and that, although she had known about this for a year, she had still not repaid him. This hugely damaging testimony got worse when the co-defendant offered to write a check on the witness stand to cover the debt! [TR-Tr. 1532, 1588-89] Similarly, the severe impeachment of co-defendant Poff with her prior inconsistent statements to the police cast a shadow of dishonesty and guilt across everyone associated with her, including the accused. By the end of the evidence, co-defendant Poff appeared as a nearly compulsive liar, and a bad one at that. See Section II.H.2., infra.

3. Technical evidence admissible only against co-defendant.

Additionally, "[e]vidence that is probative of a defendant's guilt but technically admissible only against a codefendant also might present a risk of prejudice." Zafiro, 113 S.Ct., 938. This is the case when a co-defendant's post-offense statements are introduced in a joint trial. If the co-defendant/declarant fails to testify, the admission of her statements constitutes constitutional error. Bruton v. U.S., 391 U.S. 123 (1968). If, as here, the co-defendant takes the stand, the Confrontation Clause is satisfied, but her out-of-court utterances remain inadmissible hearsay as to the joined defendant, and their introduction thus raises a risk of prejudice.

An enormous amount of testimony concerning the co-defendant's statements to other lay witnesses -- none of which was admissible against applicant -- was admitted in this case. [TR-Tr. 621, 623-24, 631-32, 638-41, 698, 700, 790-93, 1180, 1203-04] ⁽⁵⁾ Even more damaging hearsay -- none of which was admissible against applicant -- came in when co-defendant Poff was impeached with statements she had previously made to authorities. [TR-Tr. 1487-88, 1516-17, 1544-49, 1550-51, 1557-63 (testimony of Poff); 1862-76 (rebuttal testimony of Det. Elkins)]

Here, counsel should have moved for severance due to the predictable, then realized, introduction of a vast amount of inadmissible and prejudicial hearsay against the co-defendant. Compare Middleton v. State, 577 P.2d 1050, 1052 (Alaska 1978)(no severance required where court excluded testifying co-defendant's statement).

4. Risk of guilt by association.

The Zafiro court also acknowledged that the risk of unfair and unacceptable prejudice is heightened when defendants, who have markedly different degrees of culpability, are tried together. Zafiro, 113 S.Ct., 938. Accord Sampol, 636 F.2d, 645-48; U.S. v. Brady, 579 F.2d 1121, 1128 (9th Cir. 1978); U.S. v. Satterfield, 548 F.2d 1341, 1346 (9th Cir. 1977); Donaway, 447 F.2d, 943. "Ultimately, the question is whether the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants in the light of its volume and limited admissibility." Brady, 579 F.2d, at 1128.

In the present case, there was a huge risk that applicant would be convicted, at least in part, on an improper inference of guilt by association with her co-defendant. [CH-Tr. 36-37, 54-55, 60] This risk was exacerbated by the familial relationship between the two.

Because he did not know, and did not competently research, the law on severance, trial counsel made no pretrial motion to sever defendants. "[A] mistake made out of ignorance rather than from strategy cannot later be validated as being tactically defensible." Jones, 759 P.2d, 569; Arnold, 685 P.2d 1265-67; Span, 75 F.3d, 1390.

Trial counsel's failure to move for severance prior to, and/or during, trial constitutes serious ineffectiveness. See State v. Simpson, ___ P.2d ___, slip op. No. 1550, at 4 (Alaska App. September 26, 1997).

I. Failure to Obtain Limiting Instructions.

Not only did trial counsel fail to move for severance, but, having decided to acquiesce in an unfairly prejudicial joint trial, he did nothing to try to limit the prejudicial impact of evidence offered against the co-defendant, which was inadmissible as to applicant. Any minimally competent lawyer would have sought, and received, limiting instructions during the trial in response to Ms. Poff's hearsay statements and the other unfairly prejudicial evidence admitted against her.

Trial counsel was legally entitled to such instructions. ARE 105. Courts have recognized the efficacy of such instructions in reducing unfair prejudice in joint trials. See, e.g., Zafiro v. U.S., 506 U.S. ___, 113 S.Ct. 933, 939 (1993); U.S. v. Gee, 695 F.2d 1165, 1170 (9^th Cir. 1983); Larson v. State, 566 P.2d 1019, 1022 (Alaska 1977)(mid-trial limiting instructions and seven different instructions in final charge "which drew the distinction between the two defendants").

Trial counsel never sought any such instructions. On deposition, he admitted that he had no tactical reason for this failure, and that he should have obtained instructions limiting the jury's use of this unfairly prejudicial evidence. [CH-Tr. 71-72, 72-74, 98-99]

J. Failure to Obtain No-Blame Agreement.

Having decided to acquiesce in an unfairly prejudicial joint trial, trial counsel was obligated to obtain an agreement from co-defendant's counsel that neither defense would accuse the other. However, trial counsel neither obtained nor enforced an agreement with Ms. Poff's counsel that neither side would accuse the other of guilt. [CH-Tr. 37-38]

Co-defendant's counsel began pointing the finger of guilt at applicant in his cross-examination of the very first witness at trial. [TR-Tr. 541-42] Moreover, he seriously undercut applicant's defense effort to suggest Dr. Ingrim took the missing money by his examination of Dr. Ingrim in the state's rebuttal case. [TR-Tr. 1847-59] Although this examination was way beyond the scope of the direct, and caused a huge conflict between the defendants' defenses, applicant's counsel neither objected, nor moved for severance. In closing argument, co-defendant's counsel went even farther, and specifically argued that the state had proven applicant's guilt beyond a reasonable doubt. [CH-Tr. 127-28] Still trial counsel did nothing.

On deposition, trial counsel claimed no tactical reason for his neglect, and admitted he should have taken action. [CH-Tr. 128]

K. Failure To Cross-Examine and Accuse Co-Defendant.

Having decided to acquiesce in an unfairly prejudicial joint trial, and having totally failed to prevent co-defendant's counsel from attacking applicant, trial counsel had no choice but to contend, and try to prove, that the co-defendant -- who was, after all the office manager and in charge of all the books -- may well have been embezzling funds, with or without the complicity of the complainant. Indeed, this was applicant's best defense, according to trial counsel. [CH-Tr. 21, 100-04]

Trial counsel testified that he could have destroyed the co-defendant on cross-examination, to the improvement of his client's case, and that "any defense attorney worth his salt" would have done so. [CH-Tr. 100-01, 103] Such examination would have supported the theory which at least recognized the possibility that the co-defendant/office manager was involved, alone or with the doctor, in the thefts. Yet, he failed to pursue such a theory, and passed Ms. Poff at trial without asking a single question. [CH-Tr. 100]

Significantly, trial counsel offered no tactical justification for these failures. Indeed, he was quite clear that sound tactical judgment required that the co-defendant-was-involved defense, and cross-examination of her, be pursued. [CH-Tr. 100-04] Yet, he failed to do so.

Trial counsel attempted to explain his failure as based upon applicant's purported desire that nothing be done to harm her mother. [CH-Tr. 100-01, 103-04] Applicant strongly contests this claim, asserting that no such discussions occurred, and that she wanted the best defense pursued, even if it might suggest her mother's involvement. [Affidavit of Mindi Robuck] Obviously, the Court will have to resolve this factual dispute after a hearing.

Irrespective of his client's preferences, it was incompetent of trial counsel not to pursue the best defense, and not to cross-examine a critical witness, when those actions were necessary in his professional judgment.

The constitutional requirement is not satisfied upon a perfunctory appearance by counsel who does nothing whatever before or during trial to advise a client or to protect his rights except to acquiesce with the client's wishes. Perfunctory or hand-holding representation is simply not consistent with the right to counsel.

McLaughlin v. Royster, 346 F.Supp. 297, 300-01 (E.D. Va. 1972) (emphasis added), adopted by Arnold v. State, 685 P.2d 1261, 1266 n.2 (Alaska App. 1984).

The choice of defense, and decision whether to question witnesses other than the accused, belong to the attorney. Except for instances of ineffectiveness, "the client must accept the consequences of the lawyer's decision to forgo cross-examination [and/or] to decide not to put certain witnesses on the stand." Taylor v. Illinois, 484 U.S. 400, 418 (1988). Trial counsel's admitted failure to do for his client what "any defense attorney worth his salt" would have done is plainly ineffective.

In Griffin v. McVicar, 84 F.3d 880 (7^th Cir. 1996), the Court held the accused had been denied effective assistance in violation of the Sixth Amendment. A single attorney represented two co-defendants in a joint trial. A "hopeless" joint alibi defense was the only defense available for one accused, but the other had a somewhat better, if "unpromising," innocent bystander / shift blame to co-defendant defense. The Seventh Circuit held trial counsel's selection of the joint alibi defense violated the second defendant's right to effective assistance of counsel. 84 F.3d, 887-90. Similarly, here, applicant's best defense was that she was an unwitting and innocent bystander to crimes committed by her co-defendant and/or the complainant. Trial counsel was obliged to present the best defense, regardless of its impact on the co-defendant.

L. Neither Undercut Impact of State's Documentary

Evidence, Nor Introduced Exculpatory Documents.

The heart of the state's case is trial Ex. 65, purporting to list some 153 instances in which cash was "missing" from the business. [CH-Tr. 38-39] On deposition, Mr. Burger admitted that he did no analysis of this key exhibit, personally or with expert help, in an effort to diminish its impact. [CH-Tr. 18, 43-46] He devised no strategy for countering it. [CH-Tr. 40] Indeed, he apparently did not even know, prior to trial testimony, whether the dates on Ex. 65 were payment, service, or posting dates. [CH-Tr. 41]

Trial counsel admitted he failed to do even the simplest calculations, which would have greatly complicated the state's inference that applicant took the "missing" money. [CH-Tr. 42-45] Incredibly, trial counsel had no tactical reason for this failure to analyze the core evidence against his client.

Obviously, proof of applicant's absence from work on the dates of such alleged embezzlements would have been helpful to the defense. However, trial counsel admitted that he never bothered to obtain Ms. xxxxxx's 1994 work records, and thus had no way of proving whether she was or was not working on the relevant dates. [CH-Tr. 47] Trial counsel apparently perceived the relevance of this inquiry, as he challenged a state witness's failure to have obtained the same information [CH-Tr. 49-50], but, since he had also been incompetent, trial counsel was unable to confront the witness with specific instances in which cash "disappeared" when his client was not at work. Trial counsel admitted there was no "tactical" justification for this neglect. [CH-Tr. 48]

A paradigmatic demonstration of trial counsel's lack of preparation and comprehension of the case occurred during his effort to cross-examine the state's first witness, Beth Welty, complainant's new office manager. Initially, he requested a recess so that he could "reorganize" a pile of documents concerning the "missing money" transactions. [TR-Tr. 581]

When trial resumed, trial counsel presented the witness with two stacks of documents. [TR-Tr. 583] He then attempted to question Ms. Welty about the records pertaining to patient Michelle Bisner. This "examination" clearly revealed that trial counsel did not understand the content and meaning of the documents upon which the state's case was built. [TR-Tr. 583-88] Once his lack of comprehension was painfully demonstrated, trial counsel dropped any effort to question on the remaining stacks of records, stating, "Actually, having looked at these, I don't think I'm going to have any questions on these documents, so I think we can put those back." [TR-Tr. 588-89]

Trial counsel denied an inability to understand the records, maintaining that "I understood 'em as best I could." [CH-Tr. 80] Nonetheless, he conceded no one in his office was an expert in such cases, the case was complicated, he couldn't devote all his time to the case, and he couldn't organize the case the way it probably should have been organized. [Id.] Asked why he failed to continue his examination of Ms. Welty on the core records, trial counsel testified he did not know. [CH-Tr. 81]

Counsel's conduct and inaction clearly constitute ineffectiveness. See State v. Simpson, ___ P.2d ___, slip op. No. 1550 (Alaska App. 1997) (failure to introduce evidence undercutting complainant's credibility; new trial ordered); Thompson v. Calderon, 120 F.3d 1045, 1053-56 (9^th Cir.) (en banc), cert. denied, 118 S.Ct. 14 (1997); Baylor v. Estelle, 94 F.3d 1321, 1323-24 (9^th Cir. 1996); Byrd v. U.S., 614 A.2d 25, 30-31 (D.C.Ct.App. 1992); Harris v. Reed, 894 F.2d 871, 878 (7^th Cir. 1990).

L-1. Incompetent and/or Inadequate Confrontation.

Whether or not one agrees with Professor Wigmore -- that cross-examination is the greatest engine ever devised for the discovery of the truth -- it is certain that the constitutional right to confront and cross-examine is fundamental to the American criminal justice system.

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.

Davis v. Alaska, 415 U.S. 308, 316 (1974). Accord Ohio v. Roberts, 448 U.S. 56 (1980); Wood v. State, 837 P.2d 743 (Alaska App. 1992).

In this case, trial counsel denied applicant's enjoyment of this right when it mattered most. He utterly failed to confront the co-defendant, passing her without a question. See Section II.K. supra.

Similarly, although Sherrie and David Arbuckle were "important" witnesses, who provided the "smoking gun" against his client, trial counsel passed them without cross-examination. [TR-Tr. 1191, 1199, CH-Tr. 94] ⁽⁶⁾ Trial counsel initially tried to explain away this startling failure on the ground that the facts the Arbuckles related were not in dispute. [CH-Tr. 95] When he was confronted with damaging facts the Arbuckles asserted -- like Sherrie's claim a woman from the dental office emphasized to him in a phone call to be sure to bring cash with him to his appointment [TR-Tr. 1190], and David's claim Mindi asked him to pay before treatment so she could go to the bank [TR-Tr. 1197] -- trial counsel acknowledged that the defense contested those claims after all. [CH-Tr.96]

Obviously, the Arbuckles were passed not for any tactical reason, but because trial counsel did not understand his case will enough to question the witnesses. Any competent attorney would at least have cross-examined to emphasize the Arbuckles' inability to identify who supposedly told them over the phone to bring cash [TR-Tr. 1190 (Sherrie); 1198 (David)], and David's inability to attest to who ended up with the cash payment after he handed it to applicant. Since Dr. Ingrim admitted receiving the initial $80.00 Arbuckle payment, although applicant signed the receipt, counsel could have suggested a similar scenario with the subsequent, larger payments. [CH-Tr. 142-43]

Trial counsel conducted no such examinations. He did, however, manage to exacerbate his failures, by suggesting to another witness, who was not present at the time, that David Arbuckle may have misidentified Lorraine Mayfield as applicant, and that Mayfield may have actually received the money. [TR-Tr. 1368-72; CH-Tr. 93] Of course, David Arbuckle is the one who had to be asked about his identification, and never was. [CH-Tr. 93-94] Even worse, applicant had signed all of the recipts for the Arbuckle payments, rendering ludicrous trial counsel's suggestion that someone else received the money from the patient. [TR-Tr. 94] When confronted with the absurdity of this effort, trial counsel conceded that he didn't know what he was doing by asking these questions. [Id.]

M. Failure to Object to Admission of Extensive, Inadmissible, Prejudicial Evidence.

Inexplicably, trial counsel sat silently as the prosecution

elicited inadmissible and highly prejudicial testimony from witness after witness. On deposition, Mr. Burger admitted the absence of any tactical justification for his failure to prevent such unfair prejudice to his client. [CH-Tr. 69, 78, 81, 113-14] His observation that he doesn't object much is a sad comment on his practice and advocacy [id., 78], but does not constitute a "tactical" excuse for any of the specific instances of ineffectiveness. Any suggestion that such a rationale is "tactical" is objectively unreasonable -- no competent attorney would fail to object to specific highly prejudicial testimony out of regard for some generalized laissez-faire principle. Jones, 759 P.2d, 569-70.

Some of the many examples of improper testimony which were admitted without objection include:

a) Dr. Ingrim testifying "I'm a victim," observing that white collar crime is not taken sufficiently seriously, and delivering a public policy argument that people need to take a stand in favor of conviction. ⁽⁷⁾ [TR-Tr. 1109-10; CH-Tr. 77-78]

b) The case agent, Det. Elkins, setting forth his personal opinion of the defendants' guilt, asserting that "I think all this money was taken by them, or we wouldn't be sitting here," and that this is a case of "embezzlement at Turnagin Dental." [TR-Tr. 1360, 1375; CH-Tr. 78]

c) A series of wholly argumentative and improper questions by the prosecutor, directing applicant to comment on the credibility of other witnesses, misstating her prior testimony, and improperly bolstering the complainant. [TR-Tr. 1753-54, 1758-59, 1777-78 (credibility comment); 1773-74 (misstating); 1789-90 (bolstering); CH-Tr. 113-14]

d) Trial counsel failed to move for a protective order against, and never objected to, admission of testimony concerning deposits applicant made into the Turnagin business bank account in 1992-93. [Ch-Tr. 67-69] There was no evidence, claim, or charge of embezzlement before 1994. There were no deposits by applicant into the account in 1994. In short, the evidence was irrelevant, too speculative, and violative of A.R.E. 403 & 404(b).

Although he promised applicant he could keep this evidence out [Affidavit of Mindi Robuck], trial counsel never tried to do so. Instead, he attempted to meet this inadmissible evidence by having applicant testify to her need for money in 1992-93, her borrowing $5,000.00 from the complainant, and her use of the services of an apparent loanshark to repay her boss. [TR-Tr. 1684-99] What this had to do with the issues on trial does not readily appear. That it ultimately helped the prosecution prove applicant guilty is conceded even by trial counsel. [CH-Tr. 68-69, 70]

e) Trial counsel deliberately elicited from the complainant, for the first time on cross-examination, that applicant's parting words to him were, "You fucking prick, you'll be out of business in three months." [TR-Tr. 982-83; CH-Tr. 81]

f) Trial counsel allowed the complainant, without objection, explicitly to vouch for the credibility of various state witnesses, and to opine that applicant is dishonest and a liar. [TR-Tr. 972-78; CH-Tr. 82-84]

These are only a few examples of numerous instances in which Mr. Burger failed to object to damaging, irrelevant, and/or improper material. See also Sections II.H.2. & 3., supra. Allowing such improper prejudice to infect his client's felony trial constitutes ineffectiveness. Sager v. Maass, 907 F.Supp. 1412 (D. Or.), aff'd, 84 F.3d 1212 (9^th Cir. 1996) (failing to object to police officer testifying to prosecution theory and to prejudicial portions of 911 tape, and admission of unredacted victim impact statement at trial is ineffective).

N. Neither Prepared Client for, Nor Effectively Presented, Her Testimony At Trial.

In a criminal case, the accused's testimony is often critical to the outcome. "The most important witness for the defense in many criminal cases is the defendant [her]self." Rock v. Arkansas, 483 U.S. 44, 52 (1987). Where, as here, "the very point of a trial is to determine whether an individual was involved in criminal activity, the testimony of the individual himself must be considered of prime importance." U.S. v. Walker, 772 F.2d 1172, 1179 (5^th Cir. 1985). The Alaska Supreme Court has recognized that the "constitutional right to testify is both personal to the criminal defendant and fundamental to the dignity and fairness of the judicial process." LaVigne v. State, 812 P.2d 217, 219 (Alaska 1991).

The United States Supreme Court has emphasized the importance of counsel's assistance of the accused in preparing and presenting her trial testimony. See, e.g., Geders v. U.S., 425 U.S. 80 (1976) (court cannot preclude accused's consultation with counsel during overnight recess); Brooks v. Tennessee, 406 U.S. 605, 611 (1972) (client and attorney entitled to present other defense witnesses before deciding whether accused will testify); Ferguson v. Georgia, 365 U.S. 570 (1961) (state statute precluding counsel from eliciting accused's unsworn statement by questioning him unconstitutional); Powell v. Alabama, 287 U.S. 45, 69 (1932) (accused entitled to "guiding hand of counsel" at every stage of trial).

Although he had decided before trial applicant would need to testify [CH-Tr. 137 & Ex.2], trial counsel spent virtually no time with her preparing her to testify on direct examination. [Affidavit of Mindi Robuck] Incredibly, Mr. Burger did not go over with her, before she testified, many, if any, of the documents he was going to use during his direct examination of her. [CH-Tr. 17-18; Affidavit of Mindi Robuck] Ms. xxxxxx saw most, perhaps all, of these exhibits for the first time when she was on the witness stand. [Id.]

Although he claims to have perceived a risk that she would react defensively and with anger to the prosecutor's questions [CH-Tr. 107], Mr. Burger made no effort at all to prepare her for cross-examination. On deposition, Mr. Burger had no tactical reason for failing to prepare his most important -- and only substantive -- witness. [CH-Tr. 107-08] He simply observed that he never utilized decades-old preparation devices such as having a colleague conduct a mock cross-examination and/or videotaping such preparation so the client can see how she comes across. [CH-Tr. 106-08, 115-17] Apparently, he did not know how to prepare a client for testifying, since 95% of his trial clients never take the stand. [CH-Tr. 116]

At trial, counsel failed even to elicit that the data underlying prosecution Ex. 65 was all entered into the computer system by co-defendant Poff, not applicant. [CH-Tr. 108] Trial counsel could not explain how he came to miss this important fact. It was the prosecutor, not defense counsel, who finally elicited this exculpatory information. [Id.]

Trial counsel abandoned his client on cross-examination, permitting the prosecutor, without objection, to abuse her with a plethora of plainly improper, but effective, attacks. [TR-Tr. 1753-54, 1758-59, 1777-78 (credibility comment); 1773-74 (misstating); 1789-90 (bolstering); CH-Tr. 113-14]

Even worse, he allowed the prosecutor to misrepresent his client's overtime claim, making it look like she had falsely testified on direct to not having received some $6,000.00, which she did in fact receive. [CH-Tr. 174] See Sections II.G., supra, & III.G., infra. On deposition, trial counsel admitted he would have liked to have known the simple explanation which could have restored applicant, and hurt the prosecutor, on redirect. [CH-Tr. 111] Of course, he had that explanation in front of him in Burger Deposition Ex. 18. [CH-Tr. 172-73] Trial counsel cannot explain why he didn't understand and use this explanation to meet the state's devestating, but demonstrably inaccurate, cross-examination of his client. [CH-Tr. 173]

Nor did trial counsel rehabilitate Ms. xxxxxx on redirect examination with the wealth of her prior consistent statements at his disposal. [Affidavit of Angela Pedigo, Atts. A & B] Again, he admitted no tactical reasoning supported this neglect. [CH-Tr. 114] Effectively done, such redirect would have helped repair applicant's credibility, and also would have helped her distance herself from her co-defendant, who had been totally impeached with her prior inconsistent statements to the police.

The failure effectively to prepare and present the testimony of a client who chooses to testify constitutes ineffective assistance of counsel. See Nichols v. Butler, 953 F.2d 1550, 1553-54 (11^th Cir. 1992) (en banc). Ineffectiveness is easily established where trial counsel presents apparently false testimony from his client. Johnson v. Baldwin, 114 F.3d 835, 838-40 (9^th Cir. 1997).

O. Failure to Present Corroborating Witnesses.

There were several instances in which the credibility of Dr. Ingrim and his office staff was pitted directly against Ms. Robuck's credibility. For example, Dr. Ingrim and she disputed whether he owed her overtime. Similarly, she and other office staff disputed who had been opening Dr. Ingrim's engagement ring and showing it around behind his back. Witnesses were available to corroborate Ms. Robuck on both issues. [Affidavits of Thomas Daniel, Esquire; David Robuck] Moreover, David Robuck stood ready to testify that he paid the bulk of her living expenses, and that, during their nearly decade-old relationship, she had never been in financial need, thus countering the state's "motive" theory. [Id.]

Trial counsel called none of these available witnesses, and made no effort to corroborate his client's version of the events. There was no tactical reason for these omissions. [CH-Tr. 122] Rather, they stemmed from his failure ever to contact and interview Mr. Daniel and Mr. Robuck as potential witnesses, even though his client had provided him with their names and areas of knowledge. [CH-Tr. 120]

Additionally, the testimony of Julie Matsko and John Karasti would have strongly corroborated the "Dr.-did-it" theory, and supplemented available bias and motive theories. Trial counsel made no effort to produce or present this testimony. See Section II.F., supra.

The failure of trial counsel to present exculpatory and/or corroborating witness testimony regularly results in findings of ineffectiveness. State v. Simpson, ___ P.2d ___, slip op. No. 1550 (Alaska App. 1997); Thompson v. Calderon, 120 F.3d 1045, 1053-56 (9^th Cir.) (en banc), cert. denied, 118 S.Ct. 14 (1997);Baylor v. Estelle, 94 F.3d 1321, 1323-24 (9^th Cir. 1996); Byrd v. U.S., 614 A.2d 25 (D.C.Ct.App. 1992); Harris v. Reed, 894 F.2d 871, 878 (7^th Cir. 1990).

P. Failure to Move For MJOA on Count III: Insufficiency As A Matter of Law.

1. Relevant facts.

The falsification count alleges a blanket violation of AS §§ 11.46.630(a)(1)-(3) -- covering, without specification of date or transaction, the entire scope of prohibited conduct. No particular record is identified in the indictment as the subject of this count. Indeed, the state introduced dozens of pages of records of the dental business at trial.

In closing, the prosecutor focused on several particular documents to support conviction on the records count. First, were pre-printed bank deposit slips for the Turnagin Dental account, filled out by applicant, and dated March 8, 1994. These were falsified records, said the prosecutor, because applicant wrote "N/C" (no cash) instead of writing "$600" in cash, to reflect the $600 cash received in the office that day. [TR-Tr. 1941] Of course, the deposit slips, as written, accurately record the deposit that was actually made into the Turnagin Dental account on that day and at that time -- no cash was deposited.

Second, the prosecutor argued applicant's failure to record, on another bank deposit slip, the receipt in the office of $750.00 on September 12, 1994, similarly constitutes falsification of the slip. [TR-Tr. 1942] Of course, the deposit slip, as written, accurately records the deposit that was actually made into the Turnagin Dental account on that day and at that time -- $144 in cash was deposited.

Third, the prosecutor argued applicant aided and abetted her mother's failure to record on two other bank deposit slips the receipt in the office of $750.00 on August 24, 1994, constituting falsification of the slips. [TR-Tr. 1942-43] Of course, the deposit slips, as written, accurately record the deposit that was actually made into the Turnagin Dental account on that day and at that time -- no cash was deposited. ⁽⁸⁾

2. Accurately recording actual transactions does not violate the statute.

The prosecution's falsification claim rests primarily on the theory that, by failing to record cash received in the office on the deposit slip for that day, applicant somehow falsified that business record -- the deposit slip. Applicant's response is that the deposit slips accurately reflect the transactions -- the depositing of specified items in the business account -- between the dental office and the bank exactly as they occurred. As such, they cannot be "false". Simply put, the deposit slips tell what was deposited in the bank; they do not purport to be a receipt log for the business.

More than 100 years of precedent interpreting federal false entry statutes support applicant's position. In U.S. v. Coffin, 156 U.S. 432 (1895), the United States Supreme Court construed the federal statute criminalizing the making of false entries in bank records. The Court squarely held -- "[I]t is clear that the making of a false entry is a concrete offense, which is not committed where the transaction entered actually took place, and is entered exactly as it occurred." Coffin, 156 U.S., 463.

The core holding of Coffin has stood the test of time. For example, in U.S. v. Hardin, 841 F.2d 699 (6th Cir. 1988), certain convictions for false entries in bank records were reversed. The Court found insufficient evidence to support those counts pertaining to the accused's recording of a signed promissory note for, and renewal of, a loan which he knew to be a sham. Notwithstanding the fraudulent nature of the underlying loan, no false entry conviction could lie, because "an entry that records a transaction as it actually occurred is not a false entry..." Hardin, 841 F.2d, 708-09.

Many other cases have followed Coffin, and held evidence of alleged false entries insufficient as a matter of law. See, e.g., U.S. v. Erickson, 601 P.2d 296, 302 (7th Cir. 1979)(reversing six convictions; "an entry recording an actual transaction on a bank's books exactly as it occurred is not a false entry under the statute, even though it is part of a fraudulent or otherwise illegal scheme"); U.S. v. Manderson, 511 F.2d 179 (5th Cir. 1975) (convictions reversed; dismissal ordered).

To be sure, the federal false entry and Alaska falsification statutes contain differences in wording. The Alaska statute explicitly covers omissions, and extends to all business records. But, at bottom, the offense consists of making or causing the creation of an entry or omission rendering the resultant record false. Where, as here, the record accurately reflects what was put in the bank -- although that differs from what was received in the office -- the deposit slip was, and continues to be, an accurate statement of the office/bank transaction it memorializes. Such an accurate record of an actual transaction, reporting it exactly as it occurred, is not a legally sufficient basis for convicting appellant of falsifying records. U.S. v. Coffin, supra; U.S. v. Hardin, supra; U.S. v. Erickson, supra; U.S. v. Manderson, supra.

Trial counsel offered no purported "tactical" justification for failing to raise this issue. Instead, he admitted he did nothing more than review the statutes. He conducted no legal research on the elements of falsification. [CH-Tr. 34-36] Notwithstanding his admitted unfamiliarity with the defense of "paper" cases, trial counsel consulted neither defense attorneys experienced in the field nor any treatise or other relevant publication. [Id., 34-36, 91-92] At his deposition, trial counsel glibly stated he would not have perceived this sufficiency issue even if he conducted 100 trials of this same case. [CH-Tr. 129-30] Of course, he also acknowledged that, had he researched and found Coffin or its progeny, he would have discovered that the state's primary theory for Count III was legally invalid. [Id. 129-30] "[A] mistake made out of ignorance rather than from strategy cannot later be validated as being tactically defensible." Jones, 759 P.2d, 569; Arnold, 685 P.2d 1265-67; Span, 75 F.3d, 1390.

Q. Failure to Request Unanimity Instruction:

Count II (Theft-2).

1. Principles of law.

The legal basis for the constitutionally informed unanimity requirement is easily stated: The "jury convict[ing] [a defendant] of each count [must have] a specific incident in mind." Covington v. State, 703 P.2d 436, 440 (Alaska App.), error held harmless on rehearing, 711 P.2d 1183 (Alaska App. 1985). "...[W]hen two or more discrete acts, each potentially amounting to a crime, are encompassed in a single charge, the jury must be unanimous in deciding the act upon which it determines guilt." Totemoff v. State, 866 P.2d 125, 129 (Alaska App. 1993). To satisfy the constitutional unanimity requirement, the jury must agree on "just what the defendant did." State v. James, 698 P.2d 1161, 1167 (Alaska 1985).

Failure to instruct the jury upon request as to this unanimity requirement is reversible error. See, e.g., U.S. v. Beros, 833 F.2d 455, 460 (3d Cir. 1987); U.S. v. Mastelotto, 717 F.2d 1238 (9th Cir. 1983); U.S. v. Echeverry, 698 F.2d 375, modified, 719 F.2d 974 (9th Cir. 1983); State v. Seymour, 515 N.W.2d 874 (Wis. 1994); Hack v. U.S., 445 A.2d 634, 641 (D.C. 1982); Johnson v. U.S. 398 A.2d 354, 368-70 (D.C. 1979); People v. Thompson, 42 Cal.Rptr. 2d 798 (Cal.App. 3 Dist. 1995); People v. LaPort, 234 Cal.Rptr. 399 (Cal.App. 2 Dist. 1987); People v. Ferguson, 181 Cal.Rptr. 593 (Cal.App. 1 Dist. 1982); People v. Hatch, 109 P. 1097 (Cal.App. 1 Dist. 1910); State v. Kitchen, 756 P.2d 105 (Wash. 1988); State v. Brooks, 892 P.2d 1099 (Wash.App.Div. 3 1995).

Indeed, the law is so clear, and the risk of prejudice is so great, that courts will find plain error when the accused's constitutional right to an unanimous verdict is jeopardized. See, e.g., Castillo v. State, 821 P.2d 133, 136-37 (Alaska App. 1991); Strehl v. State, 722 P.2d 226, 228-29 (Alaska App. 1986). Accord U.S. v. Payseno, 782 F.2d 832, 837 (9th Cir. 1986); Davis v. U.S., 448 A.2d 242 (D.C. 1982); Hawkins v. U.S., 434 A.2d 446 (D.C. 1981).

2. Application of law to facts.

Just as a single count of sexual abuse may cover a continuing series of separate acts against the same victim, so too a single count of theft can encompass a series of separate thefts from the same complainant. The Covington doctrine applies directly, because theft, like sexual abuse, "is not a 'continuing offense.'" Covington v. State, 703 P.2d at 440. The "continuing offense" exception to the unanimity-as-to-act principle is limited to cases approaching status offenses, such as "failure to provide, child abuse, contributing to the delinquency of a minor, driving under the influence, and the like." People v. Thompson, 42 Cal.Rptr. 2d 798, 803 (Cal.App. 3 Dist. 1995). Covington establishes that the exception is even narrower in Alaska -- repeated similar acts of sexual abuse on the same child victim are not a "continuing offense," and, therefore, are subject to the unanimity-as-to-act requirement. Covington v. State, 703 P.2d at 440.

Many courts have recognized unanimity-as-to-act is required in theft cases, reversing convictions for theft-related offenses when the facts present a real risk of non-unanimous verdicts. See, e.g., U.S. v. Beros, 833 F.2d 455, 460 (3d Cir. 1987) (two embezzlement counts reversed); U.S. v. Mastelotto, 717 F.2d 1238 (9th Cir. 1983) (mail fraud convictions reversed); State v. Seymour, 515 N.W.2d 874 (Wis. 1994) (reversal of theft convictions affirmed); People v. Thompson, 42 Cal.Rptr. 2d 798 (Cal.App. 3 Dist. 1995) (diversion of construction funds convictions reversed); People v. LaPort, 234 Cal.Rptr. 399 (Cal.App. 2 Dist. 1987) (embezzlement/theft convictions reversed); People v. Ferguson, 181 Cal.Rptr. 593 (Cal.App. 1 Dist. 1982) (one count covering 35 bad checks reversed); People v. Hatch, 109 P. 1097 (Cal.App. 1 Dist. 1910) (embezzlements reversed); State v. Brooks, 892 P.2d 1099 (Wash.App.Div. 3 1995) (burglary reversed).

The state may try to suggest that the aggregation of value statute -- AS § 11.46.980(c) -- somehow dispenses with the constitutional requirement of unanimity in theft cases. Such a claim confuses the very narrow unanimity exception for a "continuing offense" discussed above with a valuation concept predicated on proof of "one course of conduct."

As its express language and legislative history make clear, the statute permits aggregation of the value taken in several smaller property offenses "committed under one course of conduct" for the purpose of "determining the degree or classification of a crime..." AS §11.46.980(c) (emphasis added). Nothing in its language or history suggests that this provision intends to permit non-unanimous jury verdicts on the units of offense which it aggregates.

Assume four jurors find thefts only in the month of April exceeding $500, four others reject the April evidence, but find thefts only in the month of June exceeding $500, and four others reject the April and June thefts, but find thefts in the month of August exceeding $500. According to the state, a valid Theft-2 conviction can lie, even though only four jurors agree on any specific acts, because the jurors would only have needed to be unanimous that the amount embezzled was $500 or more.

This position violates unanimity requirements because it permits conviction without requiring the jury to agree on "just what the defendant did." James, 698 P.2d, 1167. This is a case "in which jurors might have split over whether the defendant committed a single criminal act; in such a case it might well be necessary to require unanimity upon the actus reus element." Id. Plainly the more literal, reasonable, and constitutionally tolerable interpretation of the aggregation statute is that it permits the jury to aggregate amounts from a series of smaller thefts, each of which is found by a unanimous jury beyond a reasonable doubt. "Aggregation" means to collect different parts, not to reassemble them. Webster's New Encyclopedic Dictionary, p. 21 (1993). ⁽⁹⁾

Of course, trial counsel never requested a unanimity-as-to-act instruction for Count II. On deposition, he offered no tactical reason for this failure. He never saw the issue, even when the prosecutor argued that unanimity-as-to-act did not apply to the theft count. [CH-Tr. 147-50] He was not concerned about the risk of prejudice, because a few of the underlying transactions involved amounts large enough to meet the $500 minimum. [Id., 51-52] Of course, such mistakes, "made out of ignorance rather than from strategy cannot later be validated as being tactically defensible." Jones, 759 P.2d, 569; Arnold, 685 P.2d 1265-67.

The failure to request and obtain instructions which would provide a legal basis for acquittal is, of course, ineffective. U.S. v. Span, 75 F.3d 1383, 1387-90 (9^th Cir. 1996).

R. Failure to Request Unanimity Instruction:

Count III (Falsifying Records).

1. Principles of law.

See Section II.Q.1., supra.

2. Application of law to facts.

Obviously, for purposes of Count III, the jury had to be unanimous as to which, if any, business records were criminally falsified. Falsification of records -- even as part of an alleged on-going embezzlement scheme -- "is not a 'continuing offense.'" Covington v. State, 703 P.2d at 440. Therefore, it it is clear that the trial counsel's failure to insist on a Covington instruction on the falsification count was error.

Although defense counsel initially requested the court to give a unanimity-as-to-act charge on Count III [TR-Tr. 1897-90, 1907], he failed to obtain a ruling on it, to renew the request, and/or to object to the absence of such a charge at the conclusion of trial. [CH-Tr. 30-33]

Only ineffective counsel could have failed to grasp the serious likelihood that this record would invite a non-unanimous verdict, see Section III.R., infra, and thus failed to persist in seeking the instruction. No legitimate "tactic" can justify such inaction, and trial counsel admits there was none. [CH-Tr. 32-33]

The failure to request and obtain instructions which would provide a legal basis for acquittal is, of course, ineffective. U.S. v. Span, 75 F.3d 1383, 1387-90 (9^th Cir. 1996).

S. Failure to Request Instruction on Essential Element of Aggregation Re Count II.

By the close of the case, the indictment did not charge, and the jury was never instructed on, an essential element of Count II -- the factual predicate of the aggregation principle that the various thefts be committed "under one course of conduct." AS § 11.46.980(c). Indeed, the only "instruction" they received was the prosecutor's erroneous advice that unanimity-as-to-act was not required, because all of the alleged losses were "consolidated" and "all come[] in together" as a matter of law. [TR-Tr. 1939-41]

Trial counsel's failure to request a jury instruction on the essential element of aggregation constitutes obvious, prejudicial, and plain error.

Where, as here, the state relies, at least in part, on aggregation to make felony value, but the indictment fails to allege a single course of conduct element, subsequent convictions are reversed when proper objections are made. Miller v. State, 909 S.W.2d 586, 589 n.4 (Tex.Crim.App. 1995); Thomason v. State, 892 S.W.2d 8, 11 (Tex.Crim.App. 1994); Whitehead v. State, 745 S.W.2d 374, 376-77 (Tex.Crim.App. 1988).

Moreover, where, as here, aggregation is relied on by the prosecution, but counsel fails to request, and the court fails to give, an instruction on the essential elements of the aggregation principle, appellate courts regularly reverse the resulting convictions. See, e.g., State v. Desimone, ___ A.2d ___, 1997 WL 353183 (Conn. July 1, 1997) (theft convictions reversed); State v. Amsden, 300 N.W.2d 882, 886-87 (Iowa 1981) (Theft-1 conviction reversed); Turner v. State, 636 S.W.2d 189, 196 (Tex.Crim.App. 1980) (theft over $10,000 conviction reversed); State v. Scigliano, 583 P.2d 893, 896 (Arizona 1978) (felony receiving conviction reversed).

Of course, the failure to request and obtain instructions which would provide a legal basis for acquittal is ineffective. U.S. v. Span, 75 F.3d 1383, 1387-90 (9^th Cir. 1996) (failure to request instruction on affirmative defense; convictions reversed).

T. Ineffective Closing Argument.

Closing argument "is a most important aspect" of any trial. J. Stein, Closing Argument: The Art and the Law, §1, 4 (Callaghan & Co. 1969-85). "During closing argument, more so than at any other time of the trial, an attorney is placed in the role of advocate in the truest sense of the word." Id.

To be effective, "care must be exerted to use language which is comprehendable. There can be no stumbling over the recognition of what the [attorney] means. It must be crystal clear and self-evident, a well-tuned cymbal." A. Julien, Julien on Summation, § 7.2, 110 (John Wiley & Sons 1986).

Trial counsel's closing argument was appalling. [TR-Tr. 1981-2039] It featured a theme by analogy to a Japanese movie, which might have been relevant in a "misunderstanding" defense case, but which was wholly inapplicable to this who-stole/who's-lying case. [TR-Tr. 1981-84, 2035] On deposition, trial counsel acknowledged this point, was incapable of explaining what he meant, and essentially conceded that he just picked the Roshoman theme out of his stock of canned arguments. [CH-Tr. 130-31]

Most of the remainder of his argument consisted of pathetic, and transparent, efforts to ingratiate himself to the jury, and further irrelevancies. [TR-Tr. 1984-86 (why he's still a public defender); 1986 (he'll feel really badly if the jury convicts); 1986-87 (the D.A. is a "spin doctor"); 1988-89 (more on why he's still a public defender); 2010 (no coincidence there are 12 jurors and 12 apostles); 2036-37 (he likes the movie 12 Angry Men).

In place of constructive arguments tending towards reasonable doubt, trial counsel confessed having "gambled" twice during the trial. [TR-Tr. 2012, 2015] Instead of taking on the co-defendant, after her attorney explicitly asserted that she, unlike applicant, had not been proven guilty beyond a reasonable doubt, trial counsel explicitly refused to do so. [TR-Tr. 1987-88] Rather than distance applicant from the spillover prejudice he knew the joint trial would produce, trial counsel specifically told the jury that his client was "inextricably linked" with her mother." [TR-Tr. 2031]

Instead of giving this closing argument, trial counsel might as well have changed his client's plea to "guilty".

III.

PREJUDICE CAUSED BY UNJUSTIFIABLE INEFFECTIVENESS

A. Incompetent to Handle "Paper" Case.

Trial counsel's refusal to educate himself about the preparation and trial of "paper" (white collar) cases prejudiced applicant in myriad ways.

His failure to do appropriate legal research directly led to verdicts which are based on legally insufficient evidence of falsifying records, see Sections II.P. & III.P., on non-unanimous composite findings, see Sections II.Q. & R. and III.Q. & R., and on the absence of jury consideration and determination of an essential element of theft-2, see Section II.S. & III.S.

His failure to understand, identify, develop, and present areas of needed factual investigation and proof crippled applicant's ability to present her defense at trial. See Sections II.C., D., E., F., G., J., K., L., L-1., N., O. & T., and III. C., D., E., F., G., J., K., L., L-1., N., O. & T.

Accordingly, applicant is entitled to a new trial.

B. Failure to Communicate with Client Prior to Trial.

Because Mr. Burger never effectively communicated with his client, he was unable to learn and understand the facts necessary for him to pursue and fulfill the critical functions of defense counsel. See Sections II.C., D., E., F., G., J., K., L., L-1., N., O. & T., and III.C., D., E., F., G., J., K., L., L-1., N., O. & T.

Accordingly, applicant is entitled to a new trial.

C. Failure to Conduct Factual Investigation.

Because he conducted no investigation and interviewed no witnesses, trial counsel functionally forfeited his client's rights to prove the complainant's biases and motives, and to present affirmative evidence of her truthfulness and innocence. See, e.g., Sections II.F. & III.F. (Julie Matsko & John Karasti); II.G & III.G. (proof of motive); II.L., III.L. & Affidavit of Angela Pedigo (records analysis); II.N. & III.N. (ineffective presentation of applicant's own testimony); II.O. & III.O. (Thomas Daniel, Esq. & David Robuck).

Where, as here, failure to conduct an adequate investigation actually harms the defense at trial, the convictions must be vacated. Arnold v. State, 685 P.2d 1261, 1265-67 (Alaska App. 1984) (reversed). Accord Thompson v. Calderon, 120 F.3d 1045, 1053-56 (9^th Cir.) (en banc), cert. denied, 118 S.Ct. 14 (1997); Johnson v. Baldwin, 114 F.3d 835, 838-40 (9^th Cir. 1997); Baylor v. Estelle, 94 F.3d 1321, 1324-25 (9^th Cir. 1996); Harris v. Reed, 894 F.2d 871, 879 (7^th Cir. 1990).

D. Failure to Learn the Facts of the Case.

Because he had not even decided the general theory of defense before trial, trial counsel's opening statement was a disaster. See Sections II.E. & III.E.

He did not understand the overtime/motive theory, and so had acquiesced in the granting of a protective order excluding it. See Sections II.G. & III.G. Even worse, he failed to support it with available evidence, and then let it be misrepresented by the prosecutor to look like a lie by his client. Id.

Because he never attempted to analyze the exhibit presenting the heart of the case against his client, trial counsel did nothing to offset its acceptance by the jury. See Section II.L., III.L. & Affidavit of Angela Pedigo (records analysis).

Because he neither identified nor interviewed corroborating defense witnesses, none were called at trial. Sections II.F. & III.F. (Julie Matsko & John Karasti); II.G & III.G. (proof of motive); II.O. & III.O. (Thomas Daniel, Esq. & David Robuck).

Since he obtained no bill of particulars, defense counsel conducted trial without knowing what documents he had to show were not falsified. Accordingly, he missed legal defenses and constitutional implications when, at the time of closing argument, the state finally identified some of the papers it claimed were false. See Sections II.P. & R. and III.P. & R.

Because her lawyer failed to learn the most basic facts of her case, applicant is entitled to a new trial. Arnold, 685 P.2d 1266-67; see also Jackson, 750 P.2d, 824-26.

E. Ineffective Opening Statement.

In opening statement, trial counsel failed to present his basic defense -- the complainant pocketed his own cash -- and proffered no motive for the complainant to lie. Trial counsel made no effort to respond to the state's opening feature of the Arbuckle transaction evidence, although he viewed such evidence as a "smoking gun" against his client.

Thus, when the evidence began, the jury had only one lens through which to view it -- the coherent, persuasive, and unanswered scenario of guilt presented in the state's opening statement. [TR-Tr. 399-417]

The defense lost this case before it had even begun -- in the opening statements. "A reasonable juror would have concluded, after this opening, that the defense was simply blowing smoke. The accused was guilty, leaving the lawyer nothing meaningful to say." [Affidavit of Michael N. White, Esq., ¶ 22.B.]

This ineffective opening statement requires that a new trial be granted. People v. Lee, 541 N.E.2d 747, 761-62 (Ill.App. 5 Dist. 1989).

F. Failure to Present Exculpatory Evidence:

Julie Matsko & John Karasti.

As a result of trial counsel's failure to obtain and present the testimony of Julie Matsko, the defense lost an excellent, additional bias/motive theory, and a witness who could have laid an inferential basis for concluding that Dr. Ingrim was indeed "stealing" his own money and covering his own tracks. Evidence that Dr. Ingrim took money, or was investigated for taking undeclared income, provided him with a motive to blame others, including applicant, for any money "missing" from the business. "Any competent defense attorney would have followed through on this most critical evidence." [Affidavit of Michael N. White, Esq., ¶ 23]

Similarly, the failure to locate and obtain testimony from John Karasti denied applicant critical evidence which grossly impeached the comnplainant's claim never to have received more than $400.00 in cash at a time, and which corroborated her testimony that the single biggest cash payment in 1994 -- $1,300.00 -- had gone directly from the hand of the patient to the hand of the doctor.

The incompetent failure to present exculpatory and/or corroborating evidence frequently requires that convictions be vacated. See State v. Simpson, ___ P.2d ___, slip op. No. 1550 (Alaska App. 1997); Thompson v. Calderon, 120 F.3d 1045 (9^th Cir.) (en banc), cert. denied, 118 S.Ct. 14 (1997); Baylor v. Estelle, 94 F.3d 1321, 1324-25 (9^th Cir. 1996); Byrd v. U.S., 614 A.2d 25, 31-32 (D.C.Ct.App. 1992); Harris v. Reed, 894 F.2d 871, 879 (7^th Cir. 1990).

G. Failure to Present Evidence of Only Motive Theory.

Trial counsel's neglect of the overtime issue resulted in it going nowhere, and then backfiring on him, when he tried to raise it -- without understanding it and with no supporting evidence -- at trial.

Had trial counsel followed up on, and developed, this issue, he would have learned, and been able effectively to present to the jury, a clear motive for Dr. Ingrim falsely to accuse applicant -- a motive which preceded his criminal accusation against her. [Affidavit of Attorney Thomas Daniel] He could have proven applicant and her mother had meritorious claims totaling approximately $17,000.00 against the complainant. [Id.] He could have proven that the substance of the claim was that Dr. Ingrim had paid for overtime hours at regular wage rates, instead of time and one-half. [Id.] He could have proven that, notwithstanding his claims that applicant and her mother had removed all kinds of business records when they left employment, the complainant's attorney was able to locate and produce their 1994 timesheets when applicant's attorney demanded them. [Id.]

Not only did trial counsel fail to present this evidence, but, as he admitted on deposition, his failure to do so enabled the prosecutor and complainant to turn the overtime issue around, making it appear like applicant was presenting a frivolous and fabricated effort to shift blame. [CH-Tr. 174; TR-Tr. 1736-40, 2047]

Properly presented, this evidence of bias and motive, alone, could have raised a reasonable doubt. As the Court of Appeals recently held, trial counsel's failure effectively to present available evidence, which could have seriously undercut the credibility of a key witness, provides sufficient grounds for ordering a new trial. State v. Simpson, ___ P.2d ___, slip op. No. 1550 (Alaska App. September 26, 1997). Accord Thompson v. Calderon, 120 F.3d 1045 (9^th Cir.) (en banc), cert. denied, 118 S.Ct. 14 (1997); Baylor v. Estelle, 94 F.3d 1321, 1324-25 (9^th Cir. 1996); Byrd v. U.S., 614 A.2d 25, 31-32 (D.C.Ct.App. 1992); Harris v. Reed, 894 F.2d 871, 879 (7^th Cir. 1990). See also McIntyre, 934 P.2d, 773-74 (reversible constitutional error for court to exclude evidence of motive/bias); Kameroff, 926 P.2d, 1179-80 (same); Wood, 837 P.2d, 746-47(same).

H. Failure to Move for Severance of Defendants.

Because he never asked, trial counsel never got a severance of defendants ruling. Such a ruling might well have resulted in the ultimate dismissal of charges against applicant, following trial of her mother. [CH-Tr. 55] At worst, applicant would have stood trial alone, and received the fair treatment to which she was entitled.

Instead, trial counsel's neglect resulted in a joint trial during which hearsay statements of, and prejudicial evidence against, Ms. Poff were admitted against applicant as well, in which Ms. Poff was proven to be repeatedly untruthful and/or totally unreliable, in which the destruction of Ms. Poff spilled-over onto applicant through the process of guilt by association, and at the conclusion of which Ms. Poff's attorney directly contended that Ms. xxxxxx was guilty beyond a reasonable doubt. See Sections II.G.1.-3., J. & III.J.

Trial counsel predicted, accurately, that applicant would be unfairly prejudiced by a joint trial. [CH-Tr. 53] He knew the single worst thing going against acquittal was this unfair joinder. [CH-Tr. 36-37] It is shocking that he never tried to do anything about it by moving, before and during trial, for severance.

The actual prejudice engendered by this unfair joinder requires that a new trial be ordered. See State v. Simpson, ___ P.2d ___, slip op. No. 1550 (Alaska App. 1997) (Superior Court found ineffectiveness in failure to file for severance of counts); Griffin v. McVicar, 84 F.3d 880 (7^th Cir. 1996) (joint defense prejudiced defendant who had marginally better, separate defense by accusing co-defendant); U.S. v. Swanson, 943 F.2d 1070 (9^th Cir. 1991) (defense attorney arguing absence of reasonable doubt).

I. Failure to Obtain Limiting Instructions.

Extensive, inadmissible hearsay evidence was admitted against applicant. [Poff's statements to lay witnesses: TR-Tr. 621, 623-24, 631-32, 638-41, 698, 700, 790-93, 1180, 1203-04; Poff's statements to authorities: TR-Tr. 1487-88, 1516-17, 1544-49, 1550-51, 1557-63 (testimony of Poff); 1862-76 (rebuttal testimony of Det. Elkins); hearsay statements by persons other than Poff: TR-Tr. 445, 535, 596-97, 606, 752, 897, 964-71, 1107, 1190]

Since trial counsel never objected, he at least had to have the jury instructed on the inadmissibility of such evidence as to his client. Courts have recognized the efficacy of such instructions in reducing unfair prejudice in joint trials. See, e.g., Zafiro v. U.S., 506 U.S. ___, 113 S.Ct. 933, 939 (1993); U.S. v. Gee, 695 F.2d 1165, 1170 (9^th Cir. 1983); Larson v. State, 566 P.2d 1019, 1022 (Alaska 1977)(mid-trial limiting instructions and seven different instructions in final charge "which drew the distinction between the two defendants").

Because her attorney failed to request even this minor relief, applicant was subjected to improper jury consideration of countless inadmissible and prejudicial out-of-court statements in finding her guilty. A new trial is therefore mandated. See Sager v. Maass, 907 F.Supp. 1412 (D. Or.), aff'd, 84 F.3d 1212 (9^th Cir. 1996).

J. Failure to Obtain No-Blame Agreement.

Because trial counsel obtained neither severance from the Court nor a no-blame agreement from co-defendant's counsel [CH-Tr. 37-38], applicant was at great risk of having not only the prosecutor, but also her co-defendant, striving to prove her guilt. And that is precisely what happened.

In his cross-examination of the very first witness, co-defendant's counsel elicited that applicant could have received and pocketed cash after co-defendant filled out the deposit slips, without co-defendant's knowledge. [TR-Tr. 541-42] Moreover, Ms. Poff's counsel seriously undercut applicant's suggestion that Dr. Ingrim took the missing money by his examination of Dr. Ingrim in the state's rebuttal case. [TR-Tr. 1847-59] Trial counsel admits this "probably" had a pretty bad impact on applicant's defense. [CH-Tr., 127-28] Finally, in closing argument, co-defendant's counsel specifically argued that the state had proven applicant's guilt beyond a reasonable doubt. [CH-Tr. 127-28]

The virtual impossibility of defending against two "prosecutors" at the same time is well known to every competent criminal defense attorney. This prejudice, alone, could well have made the difference between conviction and acquittal. See Griffin v. McVicar, 84 F.3d 880 (7^th Cir. 1996) (joint defense prejudiced defendant who had marginally better, separate defense by accusing co-defendant); U.S. v. Swanson, 943 F.2d 1070 (9^th Cir. 1991) (defense attorney arguing absence of reasonable doubt).

K. Failure to Cross-Examine and Accuse Co-defendant.

Having failed to seek severance, having made no objection to admission of a ton of inadmissible evidence, and having sought not a single limiting instruction, the least trial counsel could have done was try to distance applicant from her mother/co-defendant.Again he failed. And, again he exacerbated an already horrible situation. Trial counsel asked not a single question of co-defendant Poff, and made no comment on her obvious incredibility in his closing argument. Instead of establishing distance, he told the jury that his client was "inextricably linked" with her mother." [TR-Tr. 2031]

Because he failed to implicate and cross-examine Ms. Poff, trial counsel tacitly associated his client and her defense with Poff's defense. In this way he reinforced the very unfair joinder which was devastating his client. [Affidavit of Michael N. White, Esq., ¶ 42] See Griffin v. McVicar, 84 F.3d 880, 890-91 (7^th Cir. 1996) (joint defense prejudiced defendant who had marginally better, separate defense by accusing co-defendant).

L. Neither Undercut Impact of State's Documentary

Evidence Nor Introduced Exculpatory Documents.

As a result of his unwillingness to undertake even a little preparation, trial counsel failed to show that the payment date was known in only 45 of the 153 instances of alleged "missing" cash. [Affidavit of Angela Pedigo] Thus, in 108 instances (71% of the total), the state could not establish when the payment was actually made, and thus was unable to prove that applicant was working at the time of, and thus had access to, the payment.

Because trial counsel never bothered to obtain applicant's 1994 work records, he had no way of proving when she was or was not working. As a result of his inaction, counsel failed to establish that, of the 45 instances for which the payment date is known, his client was absent from work on 4 occasions (9%). Of the remaining 108 instances for which the payment date is unknown, applicant did not work on 23 of the occasions (21%) on which such payments were posted. Service dates were known in 47 cases. Applicant was not at work on 9 (19%) of those occasions. Of the 106 transactions for which service dates were not known, applicant did not work on 20 (19%) of the related posting dates. [Affidavit of Angela Pedigo]

This sort of analysis would have undercut the assumption which was never meaningfully challenged at applicant's trial -- that she participated in 153 cash thefts, over a one year period, totaling some $28,000.00. Even trial counsel concedes such demonstrations would have been "clearly" helpful to applicant's case. [CH-Tr. 49] In turn, such demonstrations to the jury of the need to be analytical, could have established the foundation for ultimate findings of reasonable doubt.

Moreover, mastery of the state's documentary evidence would have prevented defense counsel from demonstrating to the jury his lack of preparation and comprehension of critical evidence in his attempt to cross-examine the first state witness. Jurors often conclude, wrongly, that an attorney's lack of effort results from his knowledge of the client's guilt.

The incompetent failure to present exculpatory and/or corroborating evidence frequently requires that convictions be vacated. See State v. Simpson, ___ P.2d ___, slip op. No. 1550 (Alaska App. 1997); Thompson v. Calderon, 120 F.3d 1045 (9^th Cir.) (en banc), cert. denied, 118 S.Ct. 14 (1997); Baylor v. Estelle, 94 F.3d 1321, 1324-25 (9^th Cir. 1996); Byrd v. U.S., 614 A.2d 25, 31-32 (D.C.Ct.App. 1992); Harris v. Reed, 894 F.2d 871, 879 (7^th Cir. 1990).

L-1. Incompetent and/or Inadequate Confrontation.

Thanks to trial counsel's incompetence, the testimony of the three key witnesses in the case -- co-defendant Poff, Sherrie Arbuckle, and David Arbuckle -- went to the jury unchallenged by applicant.

Since co-defendant Poff was shown to be a liar and likely embezzler, trial counsel's failure vigorously to cross-examine her deprived applicant of a key opportunity to distance herself, and perhaps obtain severance, from Poff, while succeeding in associating applicant with Poff's lies and likely guilt. See Section III.K., supra.

Trial counsel's acceptance of the Arbuckle testimony, without challenge, elucidation, or comment, spoke volumes to the jury -- the defense still had no answer for what trial counsel saw as the "smoking gun" of his client's guilt. [CH-Tr. 15]

M. Failure to Object to Admission of Extensive,

Inadmissible, Prejudicial Evidence.

Without objection, trial counsel allowed the complainant explicitly to claim victim status and deliver a public policy argument that people need to take a stand in favor of conviction. [TR-Tr. 1109-10; CH-Tr. 77-78] He allowed the case agent, Det. Elkins, to state his personal opinion of the defendants' guilt. [TR-Tr. 1360, 1375; CH-Tr. 78] Again without complaint, trial counsel allowed the prosecutor to subject his testifying client to a series of wholly argumentative and improper questions, directing applicant to comment on the credibility of other witnesses, misstating her prior testimony, and improperly bolstering the complainant. [TR-Tr. 1753-54, 1758-59, 1777-78 (credibility comment); 1773-74 (misstating); 1789-90 (bolstering); CH-Tr. 113-14]

Trial counsel also failed to object to evidence regarding applicant's deposit of her own money in the business account in 1992-93, then "met" it with testimony applicant had borrowed $5,000.00 from the complainant, then repaid him by borrowing $9,000.00 from a loan-shark. [TR-Tr. 1684-99] Trial counsel admits this episode hurt applicant's case. [CH-Tr. 68-70]

He also insisted on eliciting from the complainant his version of the vulgarities and threats applicant allegedly made when he fired her. [TR-Tr. 982-83; CH-Tr. 81] Trial counsel also failed to object when the complainant vouched in his testimony for various state witnesses, and opined that applicant was dishonest and a liar. [TR-Tr. 972-78; CH-Tr. 82-84]

Because of trial counsel's lack of objection, the jury heard these highly emotional, persuasive, and inadmissible claims at strategically critical stages of the trial. Together, or individually, these claims create at least a reasonable doubt that the verdict was returned on improper grounds. [Affidavit of Michael N. White, Esq., ¶ 48]

Such incompetence necessitates that a new trial be granted. Sager v. Maass, 907 F.Supp. 1412, 1421 (D.Or. 1995), aff'd, 84 F.3d 1212 (9^th Cir. 1996).

N. Neither Prepared Client for, Nor Effectively Presented, Her Testimony at Trial.

As a result of counsel's lack of preparation, applicant did feel defensive and angry on the stand, to the detriment of her credibility. As trial counsel put it, she "hurt herself by testifying." [CH-Tr. 111-17] Additionally, counsel's failure to protect her on cross -- by objecting to the prosecutor's improper and argumentative grilling -- further diminished her credibility in the eyes of the jury. See Sections II.M. & N.; III.M.

Trial counsel's lack of preparation also resulted in his not knowing the easy explanation for the apparent conflict between applicant's testimonial claim on direct that she had not been paid any overtime and the prosecutor's calculation that she had received some $6,000.00 for overtime hours in 1994 alone. This exchange left a picture of applicant as a reckless liar, id., when, in truth, her wage dispute was, and had always been, that she had never been paid at the overtime rate (time and one-half) for her overtime hours. [Affidavit of Thomas Daniel, Esq.]

Finally, by ignoring, on redirect, applicant's many prior consistent statements, her attorney did nothing to try to improve her testimonial image, nor to distinguish and distance her from her co-defendant.

Applicant was the only substantive witness the defense called. She was the only defense witness capable of creating a favorable outcome, if believed, or believed enough to create a reasonable doubt. Trial counsel's failure effectively to prepare and present his client's testimony unquestionably affected the jury's decision to convict her. [Affidavit of Michael N. White, Esq., ¶ 51]

Accordingly, the convictions must be vacated. Johnson v. Baldwin, 114 F.3d 835 (9^th Cir. 1997); Nichols v. Butler, 953 F.2d 1550 (11^th Cir. 1992) (en banc).

O. Failure to Present Corroborating Witnesses.

Attorney Thomas Daniel would have corroborated applicant's testimony on the overtime/motive issue. [Affidavit of Thomas Daniel, Esq.] Her fiancee, David Robuck, would have corroborated applicant's version of the incident which resulted in her firing, as well as establishing her lack of financial motive. [Affidavit of David Robuck] Finally, the testimony of Julie Matsko and John Karasti would have strongly corroborated the "Dr.-did-it" theory, and supplemented available bias and motive theories.

Had these witnesses been called, they would have given direct testimony on issues bearing on the complainant's motives to fabricate, as well as promoting applicant's credibility by corroborating her testimony. Such motive and corroboration evidence would lend credence to applicant's testimony, and might well make the difference between its acceptance and its rejection. [Affidavit of Michael N. White, Esq., ¶ 53]

The incompetent failure to present exculpatory and/or corroborating evidence frequently requires that convictions be vacated. See State v. Simpson, ___ P.2d ___, slip op. No. 1550 (Alaska App. 1997); Thompson v. Calderon, 120 F.3d 1045 (9^th Cir.) (en banc), cert. denied, 118 S.Ct. 14 (1997); Baylor v. Estelle, 94 F.3d 1321, 1324-25 (9^th Cir. 1996); Byrd v. U.S., 614 A.2d 25, 31-32 (D.C.Ct.App. 1992); Harris v. Reed, 894 F.2d 871, 879 (7^th Cir. 1990).

P. Failure to Make MJOA on Count III:

Insufficient as a Matter of Law.

According to the prosecutor, all but one of the documents identified to support conviction of appellant on the records count are deposit slips. [TR-Tr. 1941-43] Since, under Coffin and its progeny, the deposit slips do not constitute falsified records as a matter of law, the verdict on the records count is invalid and unconstitutional to the extent it rests on that theory. Shafer v. State, 456 P.2d 466 (Alaska 1969). Such a verdict violates due process, because the accused stands convicted on the basis of legally insufficient evidence. Id.; In re Winship, 397 U.S. 358 (1970).

The state may try to suggest that the jury totally disregarded the multiple instances of deposit-slip "falsification" emphasized by the prosecutor, and could have unanimously agreed on the isolated mislabeling of cash as "check." This would be rank speculation, because, of course, the verdict is a general one. ⁽¹⁰⁾

Where, as here, the jury is given both valid and invalid bases for conviction, the real risk of improper conviction invalidates resulting convictions. See, e.g., Hanna v. Riveland, 87 F.3d 1034 (9th Cir. 1996) (notwithstanding other abundant evidence of recklessness, possibility jury relied on legally insufficient permissive inference from speed alone requires that vehicular homicide and assault convictions be vacated); U.S. v. Lewis, 67 F.3d 225, 233 (9th Cir. 1995) ("When jurors 'have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error'"), quoting U.S. v. Barona, 56 F.3d 1087, 1097 (9th Cir. 1995). Accord U.S. v. Olano, 62 F.3d 1180, 1198 (9th Cir. 1995); U.S. v. Telink, 910 F.2d 598, 600-01 (9th Cir. 1990) (existence of some legally sufficient grounds for fraud finding insufficient to save convictions); U.S. v. Hilling, 891 F.2d 205, 209 (9th Cir. 1988) (jury need not have decided on legally valid basis in order to convict; reversed). Accordingly, appellant's conviction for falsifying business records must be vacated.

Q. Failure to Request Unanimity Instruction: Count II.

The risk that the theft conviction rests on an amalgam of non-unanimous pieces is particularly acute in this case, for three different reasons. First, the evidence invites such a result. Testimony and exhibits inundated the jury with claims of 153 "missing" cash payments, only 16 of which were individually large enough to meet the statutory minimum for theft-2.

Second, the prosecutor invited a non-unanimous result in argument, distinguishing the falsification count -- which required act unanimity -- from the theft -- which he asserted had no such requirement. This legally erroneous "instruction" that the jury need not be unanimous as to the acts of theft is fatal to that conviction. [TR-Tr. 1939-42].

Third, applicant offered a variety of defenses to the theft claims. She was able independently to recall some transactions, and she gave specific, exculpatory testimony about them. [TR-Tr. 1615, 1630, 1631, 1633-34, 1637-39, 1643-45, 1668-70] She was unable individually to recall others, and so relied upon more general testimony as to how she conducted office affairs and general denials of wrongdoing; but even as to these, she gave detailed explanations of the meaning of the documents on each particular patient. [TR-Tr. 1617, 1619-21, 1622-25, 1625-30, 1635, 1639, 1640-43, 1656-68] Where a variety of defenses -- as opposed to a blanket denial -- is interposed in response to evidence of a series of acts, the court's failure to instruct on unanimity-as-to-act is particularly prejudicial. See, e.g., People v. Thompson, 42 Cal.Rptr.2d 798, 803 (Cal.App. 3 Dist. 1995); People v. LaPort, 234 Cal.Rptr. 399, 400-01 (Cal.App. 2 Dist. 1987).

Where, as here, there is "substantial doubt" that the jury convicting appellant "had a specific incident in mind," the failure to give a special unanimity instruction results in constitutional error. Covington, 703 P.2d, 440-41; Strehl v. State, 722 P.2d 226, 228-29 (Alaska App. 1986). Here the error is grossly exacerbated by trial counsel's failure to obtain any explicit, meaningful unanimity instruction at all, and the prosecutor's conflicting, at least partially erroneous claims in argument. [TR-Tr. 1919, 1939-42]

Because unanimity is an issue of constitutional dimension, errors can only be excused if they are harmless beyond a reasonable doubt. See, e.g., Strehl, 722 P.2d, 228-29; State v. Kitchen, 756 P.2d 105 (Wash. 1988). These errors cannot meet that demanding standard. Accordingly, the theft conviction must be vacated. See Castillo v. State, supra (conviction reversed); Strehl v. State, supra (reversing some convictions). Accord U.S. v. Beros, 833 F.2d 455, 460 (3d Cir. 1987) (embezzlement reversed); U.S. v. Mastelotto, 717 F.2d 1238 (9th Cir. 1983) (mail fraud reversed); State v. Seymour, 515 N.W.2d 874 (Wis. 1994) (theft reversed); People v. Thompson, 42 Cal.Rptr. 2d 798 (Cal.App. 3 Dist. 1995) (diversion of funds reversed); People v. LaPort, 234 Cal.Rptr. 399 (Cal.App. 2 Dist. 1987) (embezzlement/theft reversed); People v. Ferguson, 181 Cal.Rptr. 593 (Cal.App. 1 Dist. 1982) (bad checks reversed); People v. Hatch, 109 P. 1097 (Cal.App. 1 Dist. 1910)(embezzlements reversed); State v. Brooks, 892 P.2d 1099 (Wash.App.Div. 3 1995) (burglary reversed).

Failure to obtain such an important instruction is ineffectiveness requiring a new trial on Count II. See U.S. v. Span, 75 F.3d 1383 (9^th Cir. 1996).

R. Failure to Request Unanimity Instruction: Count III.

Because unanimity is an issue of constitutional dimension, errors can only be excused if they are harmless beyond a reasonable doubt. See, e.g., Strehl, 722 P.2d, 228-29; State v. Kitchen, 756 P.2d 105 (Wash. 1988). These errors cannot meet that demanding standard. Accordingly, the business record convictions must be vacated. See Castillo v. State, supra (conviction reversed); Strehl v. State, supra (reversing some convictions). Accord U.S. v. Beros, 833 F.2d 455, 460 (3d Cir. 1987) (embezzlement reversed); U.S. v. Mastelotto, 717 F.2d 1238 (9th Cir. 1983) (mail fraud reversed); State v. Seymour, 515 N.W.2d 874 (Wis. 1994) (theft reversed); People v. Thompson, 42 Cal.Rptr. 2d 798 (Cal.App. 3 Dist. 1995) (diversion of funds reversed); People v. LaPort, 234 Cal.Rptr. 399 (Cal.App. 2 Dist. 1987) (embezzlement/theft reversed); People v. Ferguson, 181 Cal.Rptr. 593 (Cal.App. 1 Dist. 1982) (bad checks reversed); People v. Hatch, 109 P. 1097 (Cal.App. 1 Dist. 1910)(embezzlements reversed); State v. Brooks, 892 P.2d 1099 (Wash.App.Div. 3 1995) (burglary reversed).

Failure to obtain such an important instruction is ineffectiveness requiring a new trial on Count III. See U.S. v. Span, 75 F.3d 1383 (9^th Cir. 1996).

S. Failure to Request Instruction on Essential Element of

Aggregation re Count II.

In Section II.S., supra, applicant demonstrated that trial counsel was ineffective by failing to request a jury instruction on the principle of aggregation for purposes of the value element of Count II. This failure was of independent constitutional magnitude, because it effectively denied applicant's state and federal constitutional rights to due process and to have the jury pass on each essential element of the crime charged.

Where, as here, an essential element of an offense is never

submitted for jury determination, the error is "structural," and not subject to harmless error analysis; reversal is required per se. Harmon v. Marshall, 69 F.3d 963, 966 (9th Cir. 1995) (per curiam); State v. Smith, 930 P.2d 917, 920 (Wash. 1997) (En Banc); see Sullivan v. Louisiana, 508 U.S. 275 (1993)(constitutionally defective reasonable doubt instruction cannot be harmless error).

Recently, the Alaska Court of Appeals adopted the same principle, holding the failure of a trial judge to instruct on an essential element to constitute plain, reversible error, because the verdicts "do not represent the jury's determination of all of the necessary elements of the offense." Dawson v. State, 894 P.2d 672, 679 (Alaska App. 1995).

Even if traditional constitutional harmfulness analysis is employed, there is at least a reasonable doubt that the failure to instruct on aggregation affected the jury's decision to convict. Here, testimony and exhibits inundated the jury with claims of 153 "missing" cash payments, only 16 of which were individually large enough to meet the statutory minimum for theft-2. Moreover, the prosecutor's "instruction" on aggregation during argument failed to advise the jury of the necessity to find the "under one course of conduct" element. [TR-Tr. 1939-42] Finally, applicant offered a variety of defenses to the theft claims. She was able independently to recall some transactions, and she gave specific, exculpatory testimony about them. [Id. 1615, 1630, 1631, 1633-34, 1637-39, 1643-45, 1668-70] She was unable individually to recall others, and so relied upon more general testimony as to how she conducted office affairs and general denials of wrongdoing; but even as to these, she gave detailed explanations of the meaning of the documents on each particular patient. [Id. 1617, 1619-21, 1622-25, 1625-30, 1635, 1639, 1640-43, 1656-68]

Accordingly, it is highly likely that the jury utilized a general aggregation concept to meet the value element of Theft-2, without ever knowing, or finding, the factual predicate required by the statute. In such circumstances, the failure to instruct on that predicate is harmful, and requires that a new trial be granted. See, e.g., Miller v. State, 909 S.W.2d 586, 589 n.4 (Tex.Crim.App. 1995); Thomason v. State, 892 S.W.2d 8, 11 (Tex.Crim.App. 1994); Whitehead v. State, 745 S.W.2d 374, 376-77 (Tex.Crim.App. 1988); State v. Desimone, ___ A.2d ___, 1997 WL 353183 (Conn. July 1, 1997) (theft convictions reversed); State v. Amsden, 300 N.W.2d 882, 886-87 (Iowa 1981) (Theft-1 conviction reversed); Turner v. State, 636 S.W.2d 189, 196 (Tex.Crim.App. 1980) (theft over $10,000 conviction reversed); State v. Scigliano, 583 P.2d 893, 896 (Arizona 1978) (felony receiving conviction reversed).

Failure to obtain such an important instruction is ineffectiveness requiring a new trial on Count II. See U.S. v. Span, 75 F.3d 1383 (9^th Cir. 1996).

T. Ineffective Closing Argument.

Any reasonable juror would have concluded, after trial counsel's joke of a closing argument, that the defense was at a complete loss -- The accused was guilty, leaving the lawyer nothing meaningful to say. Any reasonable juror would conclude that counsel's pointless movie discussions, personal biography references, and focus on his own feelings were patently irrelevant, and must be designed to distract the jury from the unanswerable evidence of obvious guilt.

Such a closing argument constitutes an invitation for conviction, and there is at least a reasonable doubt that it was taken by the jury as being exactly that. [Affidavit of Michael N. White, Esq., ¶ 22.B.]

CONCLUSION

WHEREFORE Applicant asks the Court to grant her Application for Post-Conviction Relief.

Dated at Anchorage, Alaska, this ___ day of ______________, 1997.

Respectfully submitted,

MINDI ROBUCK, Applicant

JAMES H. McCOMAS,

Attorney at Law

_________________________

James H. McComas

1.

⁰ Citations to the trial record appear as "[TR-Tr. __]".

2.

⁰ All affidavits cited herein, and the transcript of trial counsel's deposition, were previously filed on August 14, 1997, as Attachments to applicant's Request for Holding Pre-Hearing Conference.

3. ⁰ Since the elements of ineffective assistance of counsel are mixed questions of fact and law, the statutory burden of proving "factual assertions" by clear and convincing evidence does not apply. See, e.g., State v. Simpson, ___ P.2d ___, slip op. No. 1550 (Alaska App. September 26, 1997); State v. Laraby, 842 P.2d 1275, 1280 (Alaska App. 1992).

4.

⁰ Citations to the transcript of trial counsel's deposition appear as "[CH-Tr.__]".

5.

⁰ Trial counsel also permitted the introduction, without objection, of substantial, damaging hearsay statements by persons other than co-defendant Poff. [TR-Tr. 445, 535, 596-97, 606, 752, 897, 964-71, 1107, 1190] On deposition, trial counsel claimed inability to recall the reason for his uniform failure ever to object to inadmissible hearsay statements against his client. [TR-Tr. 72-74]

6.

⁰Ironically, although he failed to cross-examine key witnesses against his client, trial counsel did examine state witnesses who testified solely against the co-defendant. [TR-Tr. 1176 (Kim Ramos); 1186 (Christopher Canfield)]

7.

⁰Trial counsel's "judgment" to let the complainant deliver this speech because he sounded "whiney" cannot be credited as a tactical reason for inaction on any objective ground. If he had had nearly $30,000 embezzled from him in a single year, jurors are invariably going to conclude he had good reason to "whine". Since trial counsel did virtually nothing to undercut his victim stance, there is every reason to believe his complaints found a sympathetic ear in the jury box.

8.

⁰The prosecutor also cited a notation in the patient chart of Lois Beyer/Susan Rodriguez of payment of $150 by check, when testimony indicated the payment was in cash. [TR-Tr. 1942] Review of dozens and dozens of patient records and more than 150 patient cash payments disclosed no pattern of mislabeling cash as checks or any other form of payment. [TR-Tr. 535, 597]

9. ⁰ But even if one were inclined to turn the aggregation statute into an exception to the unanimity requirement, one could not do so in this case. The indictment fails to charge the theft offense in such language, nor does it even include a statutory citation to the aggregation statute. When Count I fell to the defense motion for judgment of acquittal, the indictment was left without any allegation that the acts of theft were substantively and elementally connected. Additionally, the jury was never instructed by the court on the aggregation principle at all, let alone on the state's theft-amalgam theory. Accordingly, the jury was never required to find whether or not all the thefts occurred "under one course of conduct" -- a substantive condition precedent to aggregation under 11.46.980(c). Absent notice in the charging document and submission to the jury, the state cannot validly rest a theft conviction on its substantively re-tooled aggregation statute. State v. Brooks, 892 P.2d 1099, 1101 (Wash.App.Div. 3 1995) (burglary reversed).

10.

⁰If anything, it is much easier to speculate that the jury did not rely on an isolated incident of mislabeling, but instead decided to follow the deposit slip argument, which was stressed more by the prosecutor, and which appeared consistently in the documentary exhibits.