110 P.3d 986 (Alaska App. 2005), A-8399, Osborne v. State

Docket Nº:A-8399.
Citation:110 P.3d 986
Opinion Judge:COATS, Chief Judge.
Party Name:William G. OSBORNE, Appellant, v. STATE of Alaska, Appellee.
Attorney:Randall S. Cavanaugh, Kalamarides & Lambert, Anchorage, for Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Judge Panel:Before : COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
Case Date:April 15, 2005
Court:Court of Appeals of Alaska
 
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Page 986

110 P.3d 986 (Alaska App. 2005)

William G. OSBORNE, Appellant,

v.

STATE of Alaska, Appellee.

No. A-8399.

Court of Appeals of Alaska.

April 15, 2005.

Page 987

Randall S. Cavanaugh, Kalamarides & Lambert, Anchorage, for Appellant.

Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.

Before : COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

OPINION

COATS, Chief Judge.

A jury convicted William G. Osborne of kidnapping, first-degree assault, and two counts of first-degree sexual assault. 1 Osborne appealed his convictions, and this court affirmed. 2 Osborne then filed an application for post-conviction relief on the ground that his trial counsel provided him ineffective assistance because she decided not to seek more advanced DNA testing on some of the physical evidence that connected Osborne to the crime. Superior Court Judge Sharon Gleason denied Osborne's application on the ground that he failed to establish a prima facie case that he received ineffective assistance from his attorney. Osborne appeals. We affirm Judge Gleason's decision that Osborne did not establish a prima facie case of ineffective assistance. Osborne also argues that he has a due process right to further

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DNA testing of the evidence. We remand to allow Judge Gleason to reconsider her decision whether to allow Osborne the opportunity to have further DNA tests performed.

Factual and procedural background

The underlying factual and procedural history of Osborne's case was previously explained in Osborne v. State. 3

On March 22, 1993, Dexter C. Jackson and Osborne invited K.G. into Jackson's car with the promise that they would pay her $100 for oral sex. Jackson and Osborne took K.G. to a secluded spot at the west end of Northern Lights Boulevard, ignoring her request that they park along Spenard Road. During the ride along Northern Lights Boulevard, Jackson and Osborne asked K.G. if she was armed, and when she told them that she had a Swiss army knife, they asked if they could look at the knife. They took the knife and placed it on the car's dashboard when she surrendered it.

When the three stopped at the end of the street, the men asked K.G. to perform fellatio on each of them with the understanding that she would be paid afterward. When K.G. told Osborne and Jackson that she would not perform without first being paid, Osborne pointed a gun at her and told her, "I think you will."

Jackson and Osborne took what little money K.G. had, made K.G. strip, and then had sex with her. K.G. performed oral sex on Jackson while Osborne penetrated K.G. vaginally with his finger and his penis. Afterward, Osborne ordered K.G. to "get out of the car, bitch, and lay down in the snow, face down."

When K.G. stayed in the car and began pleading for her life, Jackson hit K.G. in the head with the gun and Osborne choked her after being urged to do so by Jackson. In her extreme fear, K.G. defecated on the front passenger seat of Jackson's car. Osborne scooped up some of the excrement and rubbed it in K.G.'s face, hair, and clothing. When she was able to do so, K.G. grabbed some of her clothes and fled a short distance from the car where she began to dress.

The two men took a piece of wood, probably an ax handle, from the back of the car and began to strike K.G. in the back of her head and in her ribs. When K.G. tried to run, Osborne battered her knees repeatedly, telling her, "go down, bitch, go down." Jackson and Osborne hit and kicked K.G. until she fell down. Jackson continued to pound K.G. in the area of her pubic bone with the stick even after she had fallen. At one point, Osborne allowed K.G. to stand up, but then hit her in the head with the ax handle.

K.G. decided to pretend that she was dead, and curled into a fetal position in the snow. At trial, K.G. recounted how she had heard the gun discharge and felt the bullet graze her head. K.G. believed, based on glimpses of her assailants' feet and of Osborne's sweatsuit, that it was Osborne who had shot her. The State produced expert testimony at trial showing that one of K.G.'s head injuries was a "shallow gouge" injury consistent with a close scrape with a bullet. Jackson and Osborne then buried K.G. in the snow, believing that she was either dead or dying.

K.G. heard Jackson's car drive away. She continued to lie under the snow for some time to make sure that her attackers had left the area, then got up. After walking toward town for a short while, K.G. was able to flag down a passing automobile. K.G. told the car's driver and passenger what had happened to her; she also described the men who had attacked her and the car that they had driven. K.G. asked to be taken home because she wished to avoid the police. The driver and passenger of the car complied with her request.

The next day, the incident was reported to the police by a neighbor of one of the occupants of the car that had taken K.G. home. When she was contacted by the police, K.G. was initially uncooperative, but was persuaded to describe what had happened to her and to turn over the clothes that she had been wearing. The clothes were soiled with feces. A presumptive test indicated that semen was present on one piece of clothing, but no semen was recovered. K.G. also underwent

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a physical examination and most of her injuries were photographed.

On March 28, 1993, at about 12:30 a.m., military police stopped Jackson's car on Fort Richardson. The military police were aware that the Anchorage Police Department had circulated composite drawings of a car and two black males, and further noted that Jackson, his passenger (who was not Osborne), and the car resembled the drawings. The police testified at trial that they had initially stopped Jackson because he had been flashing his headlights at a pickup driving in front of him. When Jackson opened his glove compartment in order to retrieve the title to his car, an officer saw a gun case. The case contained Jackson's .380 caliber automatic pistol.

When the military police searched the car, they found a box of ammunition for the gun under the passenger seat. During a search of Jackson, the military police found K.G.'s Swiss army knife in his pocket. (The knife was uniquely marked and dented and K.G. was able to readily identify it.) The officers arrested Jackson and the passenger and took them to the military police station.

The military police turned over the car and items seized to the Anchorage Police Department. Anchorage police officers found additional ammunition in a subsequent search of the car. The municipal police also detected blood in the car. Subsequent DNA testing of this blood, using a PCR (polymerase chain reaction) analysis of the DQ-alpha locus (a particular region of the DNA molecule), showed that the genetic makeup of the blood matched K.G.'s genetic makeup--a match that could be expected in 4.4 to 4.8% of white females. Fibers matching the carpeting were found on one of the sweaters K.G. had been wearing that night.

K.G. later identified both Jackson and Osborne in photographic lineups. She also identified Jackson's car.

An investigation of the scene of the assault, conducted on the evening of March 23, revealed an area of disturbed and bloody snow. The police also discovered two pairs of K.G.'s bloody gray stretch pants, a used blue condom, and an expended round of .380 ammunition that was later determined to have come from Jackson's gun. Tire tracks on the scene matched those made by Jackson's car.

A pubic hair taken from the blue condom and another found on the sweater K.G. had worn on the night of the assault had the same characteristics as Osborne's pubic hair. Another Negroid hair found on K.G.'s sweater did not match any of the suspects investigated by police. Sperm in the condom matched Osborne's DNA (based on PCR testing of his DQ-alpha locus). Osborne's DNA type is shared by between 14.7% and 16% of the African-American population.

An ax handle was later found 114 feet from the crime scene. Osborne used similar ax handles in his work and one was found during a search of his room. Jackson was also known to keep a similar kind of stick in the back seat of his car.

Jackson and Osborne were tried jointly Before a jury. Superior Court Judge Milton M. Souter presided over the trial. Jackson was convicted of kidnapping, 4 first-degree sexual assault, 5 first-degree assault, 6 and third-degree assault. 7 Osborne was convicted of kidnapping, first-degree assault, and two counts of first-degree sexual assault. Judge Souter sentenced Jackson to a composite sentence of 27 years with 5 years suspended. He sentenced Osborne to 26 years with 5 years suspended. Osborne appealed his convictions and this court affirmed. 8

Osborne then filed an application for post-conviction relief on the ground that his trial counsel, Sidney K. Billingslea, provided him ineffective assistance because she decided not to seek more discriminating DNA tests. Osborne alleged that Billingslea was ineffective

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because, among other things, she did not seek more specific genetic testing of the physical evidence (i.e., the condom with semen, a pubic hair, and hair on the sweater). At the time of Osborne's trial, a substantially more discriminating genetic test was available than the DQ-alpha PCR DNA test that was done by the State. In support of his application, Osborne requested the court order the physical evidence against him retested using the more discriminating DNA test to determine if Osborne was prejudiced by his trial counsel's failure to seek the more precise testing. Osborne argued that he is innocent, that he...

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