MORENO v. STATE (2013)

Order

Jorge Moreno has filed a petition for rehearing from this court's memorandum opinion dated January 9, 2013. Moreno argues that the opinion improperly requires him to prove that his counsel did not make a tactical decision to withhold an objection to Sergeant Sundai's testimony.

We believe that this argument misconceives the nature of plain error analysis. If an attorney makes a conscious decision not to object to inadmissible evidence in order to gain a tactical advantage, then the attorney is unlikely to make this decision a matter of record. And, as noted in Moreno's petition, the decision whether counsel actually overlooked an obvious trial court error is a decision that would ordinarily require an evidentiary hearing. See Barry v. State, 675 P.2d 1292, 1295–96 (Alaska App.1984) (recognizing that claims of plain error through ineffective assistance of counsel will ordinarily require a hearing).

But when a litigant pursues a claim of plain error, we focus on whether there is a serious potential for tactical inaction:

[W]hen a defendant presents a claim of plain error, the defendant must negate the possibility that their attorney's failure to make a timely objection in the trial court was the product of a tactical decision․ Moreover, when the record is silent or ambiguous on this point, we apply a presumption that the defense attorney's ․ inaction ․ was tactical.

Borchgrevink v. State, 239 P.3d 410, 421 (Alaska App.2010); see also Henry v. State, 861 P.2d 582, 589 (Alaska App.1993) (an appellate court will not entertain a claim of plain error when it appears that the litigant had a tactical reason to withhold an objection); Robison v. State, 763 P.2d 1357, 1358 n. 1 (Alaska App.1988) (if a litigant had strategic reasons for refraining from seeking a remedy, this precludes a finding of plain error).

Moreover, as noted in the memorandum opinion, the admission of Sergeant Sundai's testimony was harmless beyond a reasonable doubt.

IT IS THEREFORE ORDERED that the petition for rehearing is DENIED.