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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


FRANK LEWIS ADAMS,
                                                      Court of Appeals No. A-10549
                            Appellant,               Trial Court No. 3PA-07-2037 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                  No. 2540 — February 17, 2017


              Appeal from the Superior Court, Third Judicial District, Palmer,
              Beverly W. Cutler, Judge.

              Appearances: Andrew Steiner, Bend, Oregon, for the Appellant.
              Kenneth M. Rosenstein, Assistant Attorney General, Office of
              Special Prosecutions and Appeals, Anchorage, and Michael C.
              Geraghty and Craig W. Richards, Attorneys General, Juneau, for
              the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,
              Senior Judge. *

              Judge MANNHEIMER.




   *
       Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
              Frank Lewis Adams was convicted of murdering his girlfriend, Stacey
Johnston, and tampering with evidence to cover up the homicide. In this appeal, Adams
contends that various statements he made to the police following his arrest were obtained
in violation of the Miranda rule and should have been suppressed.
              In a separate argument, Adams contends that the superior court should have
granted his motion for a new trial. Adams’s request for a new trial was based on a claim
of ineffective assistance of counsel — in particular, his trial attorney’s failure to raise a
confrontation clause objection to the State’s expert testimony concerning the cause of
Johnston’s death. The testimony in question was given by Dr. Robert Whitmore, the
state medical examiner. Dr. Whitmore did not personally perform the autopsy; rather,
the autopsy was performed by another doctor — a doctor who died before Adams’s trial.
In Dr. Whitmore’s testimony regarding the cause of death, he relied on observations
made by the other doctor. Adams now claims that, because Dr. Whitmore relied on the
other doctor’s observations, Whitmore’s testimony violated the confrontation clause.
              Finally, Adams argues that his sentence is excessive in one respect. The
superior court sentenced Adams to serve a total of 102 years in prison, and the court
further ordered that Adams not be eligible for discretionary parole release during this
term of imprisonment. Adams contends that the superior court lacked justification for
imposing this parole restriction.
              For the reasons explained in this opinion, we reject Adams’s claims of error
and we affirm the superior court’s judgement.


       Facts relating to Adams’s arrest and the first police interview


              In the early morning hours of July 28, 2007, a gas station attendant in
Palmer called the police to report that a recent customer — a man driving a small red car

                                            –2–                                         2540

— was probably drunk. According to the attendant, the man was driving south on the
Glenn Highway (i.e., toward Anchorage).
              A Palmer police officer located the vehicle and attempted to conduct a
traffic stop, but the driver would not stop. Because the car was headed toward
Anchorage, the Palmer police contacted the Alaska State Troopers and the Anchorage
police, asking them to deploy spike strips on the highway. The Anchorage police placed
spike strips on the highway near Peters Creek, and they were able to stop the car.
              The car came to rest in a ditch alongside the highway. The driver — Frank
Adams — was initially slumped over the steering wheel, but as the police approached
the vehicle, Adams roused himself and picked up a tire iron. Adams told the police that
he had crashed his small plane, and that his wife was dead.
              When Adams refused to comply with police commands, the officers
sprayed him with pepper spray and shot him twice with a Taser. After Adams was
subdued, the police looked inside his car and saw what appeared to be a bundle of
clothes. Upon closer inspection, this bundle turned out to be the body of Stacey
Johnston.
              Officers initially transported Adams to the police station, and then they took
him to a hospital. While Adams was at the hospital, a police officer overheard Adams
telling one of the hospital staff that he wanted a lawyer.
              After Adams was released from the hospital, the police brought him back
to the station. One of the officers who transported Adams back to the station told State
Trooper Sergeant Leonard Wallner (one of the lead investigators in the case) that Adams
had said he wanted an attorney.
              Apparently, Sgt. Wallner inferred that Adams had said this directly to the
transporting officer — because later, when Adams’s suppression motion was litigated,
Wallner testified that “the information ... I was given was that Mr. Adams had invoked

                                           –3–                                         2540

his rights, his constitutional rights as far as legal counsel”, and that this invocation of
rights “had been conveyed to patrol officers that were with him.”
              (Based on Wallner’s testimony, the superior court premised its decision on
the purported fact that Adams had told the officers who transported him from the hospital
to the station that he wanted an attorney.)
              When Adams was returned to the station, Sgt. Wallner and Anchorage
Police Detective Glenn Klinkhart (the other lead investigator in the case) decided to
speak to Adams and ascertain for themselves whether Adams wished to invoke his right
to counsel.
              When Wallner and Klinkhart entered the interview room, Adams appeared
to be sleeping. (It was now 5:40 a.m.) After the officers awakened Adams, he told them,
“I think I need an attorney.” The following exchange then took place:

                      Det. Klinkhart: Well, I wanted to just — I wanted to
              clarify that.

                     Adams: [Well], I’m clarifying that.

                    Klinkhart: All right. So you — you don’t want to talk
              to me. You don’t want to make any statements or say
              anything? Okay. You’ve already been at the hospital. Do
              you need anything else before we continue what we need to
              do? Okay.

                     Adams: This just isn’t happening.

                     Klinkhart: Okay. All right. Well, ...

                     [The video recording shows that, at this point,
              Klinkhart and Wallner began to leave the room, but Adams
              indicated — both verbally and with a gesture of his head —
              that he wished to speak to Sgt. Wallner.]
                                           –4–                                        2540

       Wallner: You want to talk to me?

       Adams: Yep.

       Wallner: Well, we can talk. But I’m going to have to
— you know, because you’ve already said [that you] want an
attorney ...

       Adams: Sir; yes, sir; no, sir.

       Wallner: But I got to ...

       Adams: I want an attorney, but I’d like [to] talk to you
[referring only to Wallner, not Klinkhart] just a couple of
minutes.

     Klinkhart: You want — would you like me to leave,
Mr. Adams?

       Adams: Yes, sir.

       Klinkhart: Okay. [The video recording shows that
Klinkhart immediately walked out of the room.]

       Wallner: Okay. Well, what I’m going to do, I’m
going to read you your Miranda [rights] here, okay. ...

      [Wallner then advised Adams of his Miranda rights.
Adams acknowledged that he understood these rights, and he
told Wallner that he had no questions concerning them.]

       Wallner: Now, you said you want a — okay.

       Adams: I just want to talk to you for just a minute.


                             –5–                                  2540

                       Wallner: Okay, that’s fine. I — just go ahead; I’ll just
             listen.

             At this point, Adams commenced a narrative description of the events of
the preceding several hours. Wallner’s contribution to the conversation consisted of
numerous “okays” and occasional questions.
             Adams told Wallner that Stacey Johnston was his girlfriend, and that they
lived together in a cabin in Chickaloon. Adams was absent from the cabin for a while,
and when he returned, he found Johnston “beat up” and dead. Adams told Wallner that
he tried unsuccessfully to revive Johnston with CPR. When this was unsuccessful,
Adams left the cabin and went looking for the person who he suspected had killed
Johnston. Adams could not find this person, so he eventually returned to the cabin, put
Johnston’s body in his car, and started driving her “to town” (i.e., to Anchorage).
             Adams told Wallner that he and Johnston had recently tried to buy drugs
from some people, and the transaction had ended badly — with the drug dealers
threatening to kill them. Adams suspected that these drug dealers had murdered
Johnston.
             A little later in the interview, Wallner asked Adams if he would allow the
police to search his cabin. The following colloquy ensued:

                       Adams: Sir, without sounding bad or anything ...

                       Wallner: Uh-huh.

                       Adams: I don’t know what to do ...

                       Wallner: Okay. Okay.

                       Adams: ... right now. I need an attorney.


                                             –6–                                      2540

                     Wallner: Okay. Okay, I understand.

                     Adams: Okay.

                     Wallner: That’s right; you just said that. Okay. Okay.

                    Adams: (sighs) I just — I’m just telling you who ...
              you can go look at [i.e., investigate] for this.

                     Wallner: Okay. Okay. Okay. Okay. Okay. Uh, ...

                     Adams: Everything that you’ll find, when you do go
              to that cabin, ...

                     Wallner: Uh-huh.

                     Adams: You look, everything is me and her, who love
              each other; and we wrote it down constantly. ... It’s all over
              the place — from pictures, notes, in our Bible.

              After Adams finished this description of things the police would find inside
the cabin, Wallner asked Adams to describe the condition of Johnston’s body when
Adams found her, and the interview continued.
              A little later, toward the end of the interview, Wallner asked Adams, “Is
there anything else I didn’t ask you [that] you think is important?” Adams responded,
“I need an attorney, but I [also] need to talk to narcotics officers”. Wallner asked Adams
several questions about why he needed to speak to narcotics officers, and the interview
ended shortly after that.




                                          –7–                                        2540

       Did the officers violate Adams’s Fifth Amendment right to counsel during
       the first interview?


             As we explained in the preceding section, the superior court found that
Adams told his transporting officers that he wanted a lawyer. Sgt. Wallner and Det.
Klinkhart were informed that Adams had invoked his right to counsel, but they
nevertheless decided to speak to Adams — to ascertain for themselves whether he indeed
wanted to invoke his right to counsel.
             Adams argues that Wallner and Klinkhart violated the rule of Edwards v.
Arizona when they initiated this contact. 1
             Edwards holds that when an arrested suspect “express[es] his desire to deal
with the police only through counsel”, the suspect “[must not be] subject[ed] to further
interrogation by the authorities until counsel has been made available to him, unless the
[suspect] himself initiates further communication, exchanges, or conversations with the
police.” 451 U.S. at 484-85, 101 S.Ct. at 1885.
             For purposes of Adams’s case, the crucial aspect of the Edwards rule is
that, once a suspect in custody invokes their right to counsel, any later conversation
between the suspect and the police must be suppressed unless the conversation is
initiated by the suspect. It is not sufficient for the government to show that the suspect
later waived their rights and voluntarily responded to police questioning. Ibid.
             Here, Wallner and Klinkhart initiated the contact with Adams. Thus, their
action seemingly violated the Edwards rule. The State argues, however, that the
circumstances surrounding Adams’s request for an attorney were unclear, and therefore
Wallner and Klinkhart were entitled to seek clarification of Adams’s wishes.



   1
       451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
                                          –8–                                        2540

              Wallner testified that his purpose in contacting Adams was to ascertain for
himself whether Adams indeed wished to invoke his right to counsel — because Wallner
had not personally heard Adams’s request for an attorney, but rather had learned about
the request second-hand from one of the patrol officers.
              On appeal, the State points out that, according to the patrol officer who
actually heard Adams request an attorney, Adams was not being interrogated by the
police (or even speaking to the police) when he made this request. Rather, Adams was
being asked questions by a member of the hospital staff (a records keeper).
              In its brief to this Court, the State relies on case law holding that suspects
are not allowed to invoke their Miranda rights in anticipation that the police may try to
interrogate them — that a suspect’s request for counsel (or a suspect’s announcement of
their intention to remain silent) constitutes an invocation of Miranda rights only if it
occurs at the initiation of, or during, custodial interrogation. 2
              In essence, the State is arguing that when the superior court found that
Adams had invoked his right to counsel, the court’s finding was either based on a
mistaken understanding of the facts (i.e., that Adams made this statement in response to
police questioning, rather than to a hospital employee), or a mistaken understanding of
the law (i.e., that a suspect can invoke their Miranda rights before the police make any
effort to conduct a custodial interrogation).
              But when the superior court made its finding — that Adams was speaking
to a patrol officer when he made his statement about wanting a lawyer — the only
testimony that the court had heard on this issue was the testimony given by Sgt. Wallner


   2
        See McNeil v. Wisconsin, 501 U.S. 171, 182 n. 3; 111 S.Ct. 2204, 2211 n. 3; 115
L.Ed.2d 1158 (1991); Wilson v. Commonwealth, 199 S.W.3d 175, 179 (Ky. 2006); People
v. Villalobos, 737 N.E.2d 639, 645 (Ill. 2000); State v. Mata, 668 N.W.2d 448, 468 (Neb.
2003).

                                             –9–                                       2540

at a pre-trial hearing. At that hearing, Wallner told the court that “Mr. Adams had
invoked his ... constitutional right[] [to] legal counsel”, and that this invocation of rights
“had been conveyed to patrol officers that were with him.”
              The patrol officer (the one who actually heard Adams’s statement about
wanting an attorney) did not testify until two weeks later, when he was called as a
witness at Adams’s trial. It is true that the patrol officer’s testimony casts a different
light on Adams’s statement: according to the patrol officer, Adams was speaking to a
hospital employee when he made the statement about wanting an attorney. But the State
did not ask the court to resolve the discrepancy between Wallner’s testimony and the
testimony given by the patrol officer, nor did the State ask the court to reconsider its
finding that Adams had invoked his right to counsel while speaking directly to the police.
              Thus, even though there may be reason to doubt the superior court’s finding
of fact, we must proceed under the assumption that the court’s finding was correct.
              The next question is whether Wallner and Klinkhart violated the Edwards
rule when they asked Adams to confirm his earlier statement about wanting a lawyer.
              We initially note that, from a constitutional standpoint, it may make little
difference whether Adams was talking to the hospital employee or to a patrol officer
when he made his statement about wanting an attorney. Under either version of events,
Adams’s statement about wanting a lawyer was not made during custodial interrogation
— and many courts have concluded that Edwards is only triggered when a person
invokes their right to counsel during a custodial interrogation. Thus, Wallner and
Klinkhart might have been permitted to ask Adams to clarify his position before they
commenced the first custodial interrogation. See the discussion of these issues in Wayne
R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, Criminal Procedure (4th
ed. 2015), § 6.9(g), Vol. 2, p. 976, and the cases collected in footnote 36.



                                           – 10 –                                        2540

               We need not decide this question because, even assuming that Wallner and
Klinkhart violated Edwards when they asked Adams to confirm that he wanted a lawyer,
we are convinced that this violation did not taint Wallner’s ensuing interview with
Adams. The record — in particular, the video recording of the interaction between
Adams and the two officers — shows that it was Adams’s idea to talk with Wallner, and
that Adams’s conversation with Wallner took place at Adams’s initiative.
               Shortly after Wallner and Klinkhart entered the room and woke Adams,
Adams re-affirmed that he wanted a lawyer. Wallner and Klinkhart did not try to
dissuade Adams. Rather, the two officers were in the process of leaving the room when
Adams affirmatively asked Wallner to stay behind and talk with him. Adams told
Wallner, “I want an attorney, but I’d like [to] talk to you just a couple of minutes.”
               The video recording shows that Adams was addressing Wallner, to the
exclusion of Klinkhart. Klinkhart understood this — because Klinkhart immediately
asked Adams if Adams wanted him to leave the room. When Adams told Klinkhart that
this was, indeed, what he wanted, Klinkhart left the room without further delay.
               At this point, Wallner remained in the room with Adams at Adams’s
express request. Wallner advised Adams of his Miranda rights (including Adams’s right
to have an attorney present during any questioning). After Adams affirmed that he
understood these rights, he again told Wallner, “I just want to talk to you for just a
minute.”
               Even when the police have violated Edwards, a defendant’s resulting
statements are still admissible if the government shows that those statements were
(1) initiated by the defendant and (2) not tainted by the preceding Edwards violation.
See Dorsey v. United States, 60 A.3d 1171, 1195-96 (D.C. App. 2013).
               Given the facts of Adams’s case, we conclude that the State has met that
burden here.

                                         – 11 –                                     2540

              Adams alternatively argues that even if there was no violation of his
Miranda rights at the beginning of the interview, Sgt. Wallner violated his Miranda
rights in the middle of the interview — when, in response to Wallner’s request for
permission to search the cabin, Adams replied, “Sir, without sounding bad or anything,
I don’t know what to do right now. I need an attorney.”
              According to Wallner’s later testimony at the evidentiary hearing, he
understood Adams to mean that he wanted to consult an attorney before deciding
whether to consent to a search of the cabin. The superior court also interpreted Adams’s
remark in this fashion. Here is the court’s ruling on this issue:

                     The Court: After all the discussion between [Adams]
              and Investigator Wallner, when Investigator Wallner says,
              “Okay, given everything you’ve told us, I guess ... we ought
              to go search the cabin ... , and will you give us permission to
              search the cabin?”, the defendant then says, “Oops, well,
              I hate to — you know, I hate to do this to you, I’m
              apologizing, but if that’s going to happen, I do want a
              lawyer”. ... And so Investigator Wallner apparently
              abandons the issue of trying to get consent to search the
              cabin. [And then] other things are talked about — again,
              completely of the defendant’s own choosing. ... [T]he
              investigator is [not] playing games with the defendant to get
              him to say some more things instead of [getting him] a
              lawyer.

              This Court has reviewed both the transcript and the video recording of the
interview, and these materials support the superior court’s conclusion that Adams
invoked his right to consult an attorney with respect to the proposed search of the cabin,
and not with respect to continuing his conversation with Wallner.
              In sum, we conclude that, even assuming Wallner and Klinkhart violated
Adams’s Miranda rights (as interpreted in Edwards) by initiating contact with Adams,

                                          – 12 –                                     2540

this violation did not taint Adams’s ensuing interview with Wallner. Wallner and
Klinkhart were leaving the room when Adams expressly asked Wallner to stay behind
so that Adams could talk to him. We further conclude that Adams’s mid-interview
reference to needing an attorney was Adams’s answer to Wallner’s request for
permission to search the cabin, not a more general invocation of Adams’s right to consult
an attorney before continuing the interview with Wallner.


        Did the officers violate Adams’s Sixth Amendment right to counsel during
        the first interview?


              When Wallner and Klinkhart interviewed Adams, Adams had already been
arraigned on several charges arising from the chase down the highway, and from
Adams’s resistance to the police when they were finally successful in stopping his car.
              Those charges — reckless driving, driving under the influence, failure to
stop at the direction of a law enforcement officer, and resisting arrest — were filed in a
separate case in the Anchorage district court (File No. 3AN-07-8263 CR). At Adams’s
arraignment, the district court appointed an attorney to represent him in that Anchorage
case.
              Adams acknowledges that the Sixth Amendment right to counsel is case-
specific — and that the appointment of counsel in one criminal case does not extend to
a defendant’s other uncharged criminal matters that are factually and legally unrelated.
See Carr v. State, 840 P.2d 1000, 1005 (Alaska App. 1992). But Adams argues that the
driving and resisting arrest charges in his Anchorage case are so closely related to the
Palmer murder charge that the police could not interview Adams without obtaining the
consent of his attorney in the Anchorage case.




                                          – 13 –                                     2540

             It is true that Adams’s driving offenses led to the discovery of Johnston’s
body in his trunk. But that was the only connection between the Anchorage charges and
the later murder charge. The Anchorage charges relied on different facts from the
murder charge, and the elements of these charges did not overlap. We therefore hold
that, even though an attorney had been appointed to represent Adams in the Anchorage
case, Wallner and Klinkhart could interview Adams about the murder without obtaining
this attorney’s consent.


      Adams’s claim that his waiver of Miranda rights at the beginning of the
      first interview was not knowing and intelligent


             In addition to the arguments addressed in the preceding section of this
opinion, Adams also argues that his waiver of Miranda rights at the beginning of the first
interview was not knowing or intelligent. Adams points out that he was drunk when he
was arrested, that he was injured when his car crashed (after Adams ran the vehicle
across the spike strips on the highway), and that the police subdued him with pepper
spray and a Taser. Adams contends that, given these circumstances, his ostensible
waiver of his Miranda rights at the beginning of the interview could not have been
knowing and intelligent.
             But Adams did not raise this claim in the superior court. Adams concedes
that he never raised this claim as a ground of suppression, but he asserts that the State
raised this issue when the State pointed out to the superior court that Adams was advised
of his Miranda rights at the beginning of the interview, and that he waived them. Adams
argues that, “[b]ecause the State raised the [issue] of waiver, the trial court was
necessarily [required to] determin[e] whether [Adams’s] waiver was intelligent and
knowing.” We do not agree.


                                          – 14 –                                     2540

             A defendant who seeks suppression of statements made to the police must
inform the trial court of the grounds for suppression. The fact that the parties mention
a Miranda waiver in their trial court pleadings, or even the fact that the State
affirmatively relies on a Miranda waiver when it responds to a defense motion seeking
suppression of statements made during custodial interrogation, does not put the trial
court on notice that the defendant is attacking the validity of the Miranda waiver.
             This type of suppression claim is waived if it is not raised in the trial court.
See Alaska Criminal Rule 12(b) and (e); Snyder v. Division of Motor Vehicles, 43 P.3d
157, 161 n. 9 (Alaska 2002). We therefore conclude that Adams has waived any claim
that his Miranda waiver was invalid.


      Adams’s claim that his statements during this first interview were
      involuntary


             Adams argues that his statements during this first interview were
involuntary. In support of this argument, Adams relies on the same facts described in the
preceding section of this opinion: that he was drunk when he was arrested, that he was
injured when his car crashed, and that the police subdued him with pepper spray and a
Taser. Adams asserts that, given these circumstances, the statements he made during the
first police interview must have been involuntary.
             But as this Court noted in Edwards v. State, 842 P.2d 1281, 1285 (Alaska
App. 1992), and again in State v. Garrison, 128 P.3d 741, 750 (Alaska App. 2006), the
determination of whether a statement is involuntary “rests in large measure on the
subjective effect of the police conduct on the suspect’s will.”
             Statements may be involuntary if police officers, through threats or other
coercive measures, “undermine a suspect’s will to resist and elicit a confession that


                                          – 15 –                                        2540

would otherwise not be freely given.” Malloy v. State, 1 P.3d 1266, 1276 (Alaska App.
2000); Edwards, 842 P.2d at 1285. But even when the record reveals potentially
coercive circumstances, a suspect’s statements will be voluntary so long as the suspect’s
will has not been overborne.
               For example, in Edwards, the defendant argued that his statement to police
officers was involuntary because the officers threatened him with immediate arrest on
a murder charge if he failed to talk to them. 3 We found that, despite this threat, the
defendant’s statements were voluntary: “The main impediment to ... a finding [that the
statements were involuntary] is that Edwards, despite police pressure to talk, said nothing
to directly inculpate himself in [the crime].” 4 Likewise, in Malloy, we found that the
defendant’s statements were voluntary, despite police threats, primarily because the
defendant said nothing to directly inculpate herself. 5
               The facts of Adams’s case lead to the same conclusion. Adams spoke at
length to Sgt. Wallner, but he consistently maintained his own innocence and repeatedly
asserted that Stacey Johnston had been murdered by drug dealers. We therefore
conclude that Adams’s statements were voluntary.


       Adams’s second and third police interviews


               Adams also sought suppression of his second and third police interviews,
but solely on the ground that these later interviews were tainted by the allegedly
improper first interview. Because we have rejected Adams’s attacks on the first


   3
       Edwards, 842 P.2d at 1285.
   4
       Ibid.
   5
       Malloy, 1 P.3d at 1276.
                                          – 16 –                                      2540

interview, we conclude that there is no reason to suppress the second and third
interviews.


      Adams’s claim that his trial attorney incompetently failed to raise a
      confrontation clause objection to the testimony of the state medical
      examiner


              Two days after Stacey Johnston’s body was found in Adams’s car, State
Medical Examiner Franc Fallico performed an autopsy. Dr. Fallico concluded that
Johnston’s death was a homicide, and that her death was the result of multiple internal
injuries caused by blunt-force trauma.
              But by the time of Adams’s trial, Dr. Fallico had died. The State therefore
called Deputy Medical Examiner Robert Whitmore to testify about the autopsy results.
              The State did not attempt to introduce the report itself. However, both the
prosecutor and Adams’s defense attorney asked Dr. Whitmore to offer his analysis of the
physical observations and the laboratory test results recorded in the report.
              Based on the information recorded in the autopsy report, Dr. Whitmore
offered his opinion concerning the manner of Johnston’s death (i.e., homicide) and the
mechanism of her death (injuries caused by blunt-force trauma).
              After Adams was found guilty of murder (but before his sentencing),
Adams’s trial attorney, Scott Sterling, filed a motion for a new trial. In this motion,
Sterling asserted that he had incompetently failed to raise a confrontation clause
objection to Dr. Whitmore’s testimony.
              In his supporting affidavit, Sterling asserted that he should have objected
to Whitmore’s testimony after it became clear that Whitmore had not performed the
autopsy himself, and that Whitmore would be relying on the photographs, laboratory test
results, and other materials that accompanied the autopsy report. Sterling further

                                         – 17 –                                     2540

declared that his failure to object was the result of ignorance — that “[he] did not realize
nor understand in advance of the trial, nor during the trial, that there existed a credible
legal argument ... to object to Dr. Whetmore’s [sic] testimony under the [decision in]
Crawford v. Washington and other [related] cases[.]”
              Sterling concluded that his failure to object to Dr. Whitmore’s testimony
constituted ineffective assistance of counsel, and that his incompetence materially
prejudiced Adams’s interests.
              The superior court concluded that Sterling’s affidavit (and the
accompanying memorandum of law discussing the confrontation clause) failed to
establish a prima facie case of ineffective assistance of counsel. The court therefore
denied Adams’s motion for a new trial. Now, on appeal, Adams renews his argument
that Sterling was incompetent for failing to object to Dr. Whitmore’s testimony.


       How the confrontation clause limits the government’s ability to present
       expert testimony when the expert’s analysis relies on observations or data
       generated by other people who do not testify at the defendant’s trial


              Sterling’s request for a new trial was based on his assertion that, under
Crawford v. Washington 6 and ensuing cases interpreting the confrontation clause of the
Sixth Amendment, there was a “credible argument” that Dr. Whitmore’s testimony
violated Adams’s right of confrontation. But the existence of a “credible” or non-
frivolous argument is not enough to justify Adams’s request for a new trial.
              As we explained in State v. Steffensen, 902 P.2d 340, 341-42 (Alaska App.
1995), many “colorable” legal arguments turn out to have no merit. Thus, when a claim
of ineffective assistance of counsel is based on an attorney’s failure to pursue a motion,


   6
       541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
                                          – 18 –                                       2540

the defendant must show (1) that the proposed motion would ultimately have been
successful, (2) that any competent attorney would have pursued the proposed motion,
and (3) that there is reason to believe that the ultimate outcome of the proceedings would
have been different had the motion been granted. Steffensen, 902 P.2d at 342.
             In Vann v. State, 229 P.3d 197 (Alaska App. 2010) (a case decided a little
over a year after Adams’s trial), this Court addressed the question of how a defendant’s
rights under the confrontation clause might limit the government’s ability to present
expert testimony when the expert’s opinion is based on observations and/or testing
performed by other people who do not testify. We summarized the prevailing view this
way:

                     We have found several cases where courts concluded
             that a defendant’s right of confrontation was denied when the
             live witness’s testimony simply recapitulated (and sometimes
             vouched for) the analysis performed by an absent witness. ...

                    On the other hand, numerous courts have concluded
             that a defendant’s right of confrontation is satisfied when an
             expert witness offers their own analysis or conclusion, even
             when that analysis or conclusion is based on test results
             derived from testing performed by someone else.
                    . . .
                    [For example, in] cases where the trier of fact must
             ascertain the cause of someone’s death, courts have allowed
             medical examiners to give their opinion concerning the cause
             of death even though that opinion was based on the physical
             observations and laboratory results of an autopsy performed
             by another person: see United States v. De La Cruz, 514 F.3d
             121, 132-34 (1st Cir. 2008); People v. King, unpublished,
             2010 WL 98693, *3-6 (Mich. App. 2010).

Vann, 229 P.3d at 206-07 (some citations omitted).

                                          – 19 –                                     2540

             In Vann, we adopted the following test for analyzing these confrontation
clause claims: “[W]hen the government’s expert is simply a conduit for an absent
witness’s analysis, [there is] a violation of the confrontation clause; but when the
government’s expert offers their own analysis, [even though] based in part on test data
obtained from other people, ... the confrontation clause is satisfied.” Id. at 206.
             We acknowledged the danger that the underlying test data might be tainted
by mistake, improper procedures, or even outright fraud. But we clarified that, standing
alone, the mere speculative possibility of error in the underlying testing does not create
a confrontation clause issue. Id. at 210-11.
             Vann did not deal with autopsy testimony, but the approach taken in Vann
reflects the majority approach among courts that have considered confrontation clause
objections to autopsy testimony. This majority approach is exemplified by the New
Mexico Supreme Court’s decision in State v. Navarette, 294 P.3d 435 (N.M. 2013).
             The Navarette court drew a distinction between two different aspects of an
autopsy report. On the one hand, an autopsy report will often record “objective markers
that any third [person] can examine”. Id. at 443. On the other hand, the report may also
include a type of observation that really qualifies as an analysis — for example, a
pathologist’s unsupported assertion that they observed (or did not observe) gun-powder
stippling on the deceased’s skin. Ibid.
             The difference, the New Mexico court declared, is that some of the
observations in an autopsy report “are not based on any scientific technique that
produces raw data, but [rather] depend entirely on the subjective interpretation of the
observer”. Ibid. These subjective observations are not admissible unless the defendant
has the opportunity to confront the witness who made them. Ibid. But the result is
different when the government’s witness offers their own opinion, based on raw data
collected during the autopsy:

                                          – 20 –                                      2540

             [Not] all material contained within an autopsy file is
             testimonial and therefore inadmissible. Without attempting
             to catalogue all material in a file that could be admissible, we
             note that an expert witness may express an independent
             opinion regarding his or her interpretation of raw data
             without offending the Confrontation Clause. For example, [a
             pathologist who is] shown the autopsy photographs ... [may
             express] his own opinion about ... entry and exit wounds,
             explaining the basis for his opinion[, as long as he does] not
             simply parrot the opinion or subjective statement of the
             pathologist who performed the autopsy and took the
             photographs.

Navarette, 294 P.3d at 443 (citations omitted).
             The West Virginia Supreme Court reached a similar conclusion in State v.
Kennedy, 735 S.E.2d 905 (W.Va. 2012). The West Virginia court held that the
confrontation clause bars the admission of an autopsy report prepared by a non-testifying
pathologist, and further bars the testimony of a pathologist who did not perform the
autopsy if this pathologist is serving as a “transmitter” for the opinions of the
non-testifying pathologist who performed the autopsy. Id. at 920-21. However, the
court ruled that the confrontation clause does not bar the second pathologist from
testifying about their own opinions, even if those opinions are based on autopsy
photographs and physical evidence collected during the autopsy. Id. at 921.
             See also United States v. Williams, 740 F.Supp.2d 4, 9 (D. D.C. 2010)
(“[The government’s witness] may testify as to his own independent opinion concerning
the cause or manner of [the victim’s] death, even if that opinion is based in part on the
inadmissible autopsy report.”); State v. Joseph, 283 P.3d 27, 29 (Ariz. 2012)
(“[A] testifying medical examiner may offer an opinion based on an autopsy performed
by a non-testifying expert without violating the Confrontation Clause. ... Even if the

                                         – 21 –                                     2540

autopsy report were itself ‘testimonial,’ [the witness] did not testify to any of [the earlier
pathologist’s] conclusions. ... He testified instead to opinions he formed after reviewing
facts and photographs contained in the report.”).
              We have examined the testimony that Dr. Whitmore gave at Adams’s trial.
Applying the legal test that we have just described, it appears that almost all of the
doctor’s testimony would have been admissible even if Adams had raised a confrontation
clause objection.
              Much of Dr. Whitmore’s testimony was devoted to describing what an
autopsy is, what procedures normally take place before and during an autopsy, and what
a pathologist looks for.
              Dr. Whitmore clarified that Dr. Fallico was the one who performed the
autopsy of Stacey Johnston’s body. Whitmore then referred at length to the photographs
that were taken during the autopsy, to the results of toxicology testing that was done in
connection with the autopsy, and to the conclusions he (Whitmore) drew from this
information. Each time Dr. Whitmore offered opinions about what those photographs
and test results showed, and when he gave his ultimate opinion about the cause of Stacey
Johnston’s death, those opinions were based on his own analysis of the raw data.
              It is true that, at six points in his lengthy testimony, Dr. Whitmore explicitly
relied on Dr. Fallico’s observations (as recorded in the autopsy report): that there were
no injuries to Johnston’s palms; that Johnston was 67 inches tall and weighed 117
pounds; that there were fractures on both sides of Johnston’s ribs and multiple contusions
between her ribs; that Johnston’s body had older bruises that were healing; that there
were injuries to Johnston’s tongue; and that a cloudy pink liquid was present in her
stomach.
              Conceivably, these particular answers might not have survived a confronta­
tion clause objection. But given the wealth of information contained in the rest of

                                           – 22 –                                        2540

Dr. Whitmore’s testimony, a defense attorney would not be incompetent for failing to
object to these answers. Moreover, given the way Adams’s case was litigated (i.e., the
prosecution and defense theories of the case), there is essentially no possibility that the
admission of these answers affected the verdict.
               To prevail in his motion for a new trial, Adams had to show that no
competent criminal defense attorney would have failed to object to Dr. Whitmore’s
testimony on confrontation grounds, and also show that such an objection would have
been successful. 7 But as we have just explained, the great majority of Dr. Whitmore’s
testimony would have survived a confrontation clause objection under this Court’s
decision in Vann, and under the similar tests adopted by several other courts from around
the country.
               Even if Dr. Whitmore’s testimony would be excluded under some courts’
interpretation of the confrontation clause, this would merely show that American
jurisdictions disagree regarding the admissibility of such testimony. The question is
whether any competent criminal defense attorney practicing in Alaska would necessarily
raise a confrontation clause objection to Dr. Whitmore’s testimony. The answer to this
question is “no” — and this is true regardless of whether our decision in Vann controls
this issue or whether, instead, Vann does not control and the law remains unsettled. See
State v. Adams, 2012 WL 2308131, *3-5 (Ohio App. 2012), where the Ohio Court of
Appeals rejected a similar claim of ineffective assistance of counsel, because of the
unsettled state of the law.
               Thus, even though Adams’s trial attorney was willing to accuse himself of
incompetence, Adams’s motion for a new trial did not set forth a prima facie case of
attorney incompetence. Accordingly, the superior court correctly denied that motion.


   7
       See State v. Steffensen, 902 P.2d at 341-42.
                                          – 23 –                                      2540

       Was the superior court clearly mistaken when, at sentencing, it ordered
       that Adams would not be eligible for discretionary parole?


             Adams was convicted of first-degree murder, and he therefore faced a
sentence of 20 to 99 years’ imprisonment. 8 The superior court sentenced Adams to the
maximum term — 99 years. For the separate crime of evidence tampering, the court
sentenced Adams to a consecutive term of 3 years. Thus, Adams’s composite sentence
was 102 years to serve. In addition, the court exercised its power under AS 12.55.115
to eliminate Adams’s eligibility for discretionary parole release during this composite
term of imprisonment.
             On appeal, Adams argues that the superior court abused its sentencing
discretion when it restricted him from applying for discretionary parole.
             First, Adams argues that the superior court failed to adequately explain its
decision to eliminate his eligibility for discretionary parole. But the State’s sentencing
memorandum contained a lengthy explanation of why the State was asking the court to
impose this parole restriction, and the sentencing judge declared that her decision was
based on the factors listed in the State’s memorandum:

                     The Court: Every sentence of the State’s argument
             about why [Mr. Adams] should be ineligible [for
             discretionary parole] ... is [supported by] the proof in this
             case. And ... almost all of the cases that [the State] refer[s] to
             [in its pleading] are less serious than [Mr. Adams’s] case.

             In the relevant portion of the State’s sentencing memorandum, the State
asserted that Adams’s killing of Johnston was an act of “gratuitous violence”, committed




   8
       AS 12.55.125(a).
                                          – 24 –                                     2540

for “no [apparent] reason”. The State noted that Adams “beat her with such force that
her face was not recognizable”.
              The State also noted that Adams had an “extensive history of violence”.
Adams committed a brutal homicide when he was a teenager (see this Court’s description
of this crime in Cassell v. State, 645 P.2d 219, 220 (Alaska App. 1982)), and he
committed other acts of violence against a former wife and a former girlfriend.
              Finally, the State contended that Adams’s history within the justice system,
and his repeated criminal acts, showed that he had little prospect of rehabilitation.
              These assertions, expressly adopted by the sentencing judge, constitute a
sufficiently detailed explanation of the judge’s decision to impose the parole restriction.
              Adams argues in the alternative that even if the judge gave a sufficiently
detailed explanation of her decision, this explanation does not adequately justify the
judge’s decision. We disagree.
              As the sentencing judge noted in her sentencing remarks, Adams had
committed a prior homicide, and he had two other felony convictions (one for assault,
the other for criminal mischief). Two of Adams’s former domestic partners testified that
he committed acts of severe violence against them. The judge told Adams:

                     The Court: [Y]ou really are an extreme danger to
              other persons. ... [F]or whatever reason, you just cannot
              internalize and act upon the requirement[s] of conforming
              your conduct to the law [and] respecting other people’s
              privacy and their right to life.

              Adams does not directly challenge any of the judge’s remarks, other than
to argue that no one can know for certain whether he will continue to be dangerous
34 years from now (i.e., when he would have been eligible to apply for discretionary
parole if the sentencing judge had not restricted his parole eligibility).

                                           – 25 –                                       2540

              But Adams was in his mid-forties when he committed the murder in this
case, and (according to the pre-sentence report and the testimony at his trial) Adams has
committed a number of serious assaultive crimes since he was a teenager. In light of this
record, the sentencing judge concluded that Adams’s only prospect for rehabilitation was
“the faint hope that ... [someone] might actually turn out ... different than anticipated.”
              The judge’s finding on this issue is supported by the record, and we
therefore conclude that the judge was not clearly mistaken when she denied parole
eligibility to Adams.


       Conclusion


              The judgement of the superior court is AFFIRMED.




                                          – 26 –                                      2540

