RONALD WYATT v. STATE OF ALASKA (2017)

PETITION FOR REHEARING

PETITION FOR REHEARING VRA CERTIFICATION

I certify that this document and its attachments do not contain (1) the name of a victim of a sexual offense listed in AS 12.62.240 or (2) a residence or business address or telephone number of a victim or a 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.

Petitioner, Ronald F. Wyatt, pro-se, petitions this court for a rehearing pursuant to Ak. App. R. 506. A petition for rehearing may be granted when the court has “overlooked or misconceived some material fact or proposition of law and/or a material question in the case.” Alas App R. 506 (a)(2), (3).

Issues that are approperately raised in a post-conviction petition include,(1) conviction was in violation of the Constitution of the U.S. and/or the Constitution or laws of Alaska; (4) that there exists evidence of material facts, not previously presented or heard, that require vacation of the conviction in the interest of justice; and (9) Applicant was not afforded effective assistance of counsel at trial or direct appeal. (Rule 35.1 (a) (1), (4), (9).

In the matter of prosecutorial misconduct, petitioner has asserted that his appointed direct appeal counsel, Ms. Mock, provided ineffective assistance by the failure to appeal this issue in favor of lesser ones. While appellate counsel is given latitude to make tactical choices, to disregard this severe pattern of prosecutorial abuse is beyond the pale of mere tactical choice. Counsel's decision to disregard the prosecutor's misconduct denied Mr. Wyatt's ability to raise this key due process issue in his direct appeal. It is appropriate for this court to examine this misconduct and the negative effect it would have on the jury's verdict, and to grant Mr. Wyatt a new trial that is free from such abuse. Alternately, Mr. Wyatt should be granted an evidentiary hearing in this matter. This misconduct is extensive and covers the majority of Mr. Wyatt's briefs.

Over 80 years ago, in reversing a conviction because of prosectutial misconduct, the U.S. Supreme Court articulated the paramount obligation of a prosecutor; “A prosecutor has the duty to refrain from all improper methods calculated to produce a wrongful conviction-he may strike hard blows but is not at liberty to strike foul ones.” Berger v. U.S. 295 U.S. 78, 88 (1935). There, the prosecutor had mistated the evidence, bullied witnesses, put words in the mouth of witnesses and intimated facts he knew were false.

In the petitioners case, the prosecutor did all these things, plus much more. The prosecutor testified falsely about key evidence, made false statements, misrepresented the evidence, solicited false testimony, argued flawed scientific evidence, vouched for key witnesses, made improper inference regarding evidence, made personal assertions as to petitioner's character (calling Wyatt a lier over 17 times -even misrepresenting witness testimony and calling Wyatt a lier when his statements were supported by that witness. There is much more!

This misconduct was persistant, from the indictment, to opening and closing statements an inbetween. It infected the trial with unfairness as to make the resulting conviction a denial of due process and a fair trial as guaranteed under the U.S. and Alaska constitutions. Petitioner's briefs addresses these issues, along with supporting authorities (op. br. pgs. 24-56, reply br. pgs. 1, 4-9, 13-15, 28-42) (Exhibit A, pgs. 1-8 reply brief).

Judge Weeks, in Wyatt's first PGR, addressed this issue of prosecutorial misconduct. Mr. Wyatt had raised similar issues in that court through his appointed PCR counsel. Judge Weeks stated:

“The court finds that even taken as true all the factual allegations made by Mr. Wyatt regarding statements made by the prosecuting attorney, nothing in the assemblege of statements approaches prosecutorial misconduct” Opinion of Judge Weeks Juneau Superior Court, filed 7-19-2002 in 1JU-00-00914 CI.

Thus, denying relief and a requested evidentiary hearing on this matter. Mr. Wyatt filed a Request for Reconsideration which was granted by Judge Weeks, which again raised substantial issues of prosecutorial misconduct. Again, this was denied without an evidentiary hearing. The state has never filed an answer to address this massive misconduct in this case which is in the trial record.

Petitioner has asserted that the failure to review the issues presented in his PCR would perpetuate a manifest injustice and a fundamental miscarriage of justice and should be reviewed in the interest of justice (op. br. pgs. 5, 27, 58, reply br. pgs. 11, 23, 28). Thus, further review is allowed (if not mandated) dispite and failure to follow procedural rules.

Mr. Wyatt has been “silenced” regarding his claim of prosecutorial misconduct.1)The state has never filed a response to this claim; 2) the trial court banned contemporaneous objections during closing arguments; 3) Wyatt's direct appeal counsel provided ineffective assistance for failure to argue this claim in direct appeal; 3) the trial court's finding that this massive misconduct well, supported by the trial record and U.S. and Alaska case law, was not misconduct, and without providing for a hearing. Wyatt's claim implicates the due process concerns of whether the trial court failed to observe the fundamental fairness essential to the very concept of justice. Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974). This court should not allow for this misconduct to be “swept under the carpet”. An evidentiary hearing into this matter, at a minimum, should be ordered.

Regarding the ineffective assistance claim, Ms. Mock failed to even make a meaningful review of the trial records. In the matter of the original opening statements of facts it appears she simply accepted the state's factual findings which are wrong. She stated Wyatt's vehicle was seen in the log sort yard, and area near where the body was recovered. This error lent support to the state's case. Only after the court's opinion, and much prodding from Mr. Wyatt, Ms. Mock corrected this in her Petition for Rehearing. Although she corrects this she still makes critical errors. She states the vehicle was 45-50 ft. from the main highway, whereas it was 10-15 ft. in a well lit area. She states that the vehicle was behind a gate leading to the sort yard. This gate was permanently locked, was yards away from the vehicle, and led to nowhere, it once led to a fish packing plant away from the sort yard.but had been removed and led to nowhere, and not passable. The actual facts support that Wyatt could not have disposed of the body there. (op. br. pgs. 36-40, reply br. pgs. 6, 34-35). Mr. Wyatt would have had to remove this “package” in plain view of the busy highway (130 lb. body, 2-anchors weighing 57 lbs., chain, tarp, netting, rope - total weight about 220-230 lbs. down a steep highway embankment, about 1000 ft. thru some extremely difficuly and hazardous terrain, then throw it 25-30 feet from the embankment into the water. The “package” was carried, not dragged, as there was no debris in the netting. You would also have to tranverse through thickets of alder trees. All with a broken wrist Wyatt suffered that morning in an unrelated incident. Other factors show that the state's web of circumstantial evidence was woven from flawed scientific evidence, falsification and misrepresentation of evidence, improper inferences and misconduct. The state's “statement of facts” is also flawed in a similar way. Nothing is based on the facts, just the false statements by the prosecutor. All the key elements of this case are flawed! (reply br. pgs. 29-40). The Innocence Project has found that in its first 74 exonerations, prosecutorial misconduct was a factor in 45% of those cases.

All issues in Mr. Wyatt's briefs implicate fundamental unfairness and the deprivation of due process and should be reviewed. The prosecutorial misconduct issue is the most extensive and egrevious.

Petitioner requests that his conviction be vacated, or at a minimum, remanded to the Superior court for an evidentiary hearing to address the issues presented, and to resolve the impact this improper activity had on the jury's verdict, and the fundamental unfairness of Mr. Wyatt's trial.