Clayton v. State

535 P.3d 909

Terry Anthony CLAYTON, Appellant,

v.STATE of Alaska, Appellee.

Court of Appeals No. A-13013

Court of Appeals of Alaska.

August 18, 2023

Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.

Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.

OPINION

Judge ALLARD.

In 1987, Terry Anthony Clayton was convicted of first-degree murder for the shooting death of Lisa Haverling. This Court affirmed Clayton's conviction on direct appeal in an unpublished memorandum decision.¹ In that decision, we referred to the evidence against Clayton as "overwhelming."²

In 2015, Clayton filed an application for post-conviction relief, claiming that the FBI hair and fiber analyst who testified at his trial had given erroneous testimony. The superior court dismissed the application as untimely on two independent grounds: (1) that it was not supported by "admissible" evidence, and (2) that it did not establish Clayton's "innocence" by clear and convincing evidence.

Clayton now appeals, arguing that the superior court erred in dismissing his application. We agree with Clayton that his application was supported by evidence in a form sufficient to survive a motion for summary dismissal. We also question whether the superior court may have applied an unduly stringent standard of "innocent" for purposes of AS 12.72.020(b)(2), the statutory exception to the statute of limitations for claims of newly discovered evidence. But for the reasons explained in this opinion, we conclude that — even applying the lower standard advocated by Clayton — Clayton has failed to establish a prima facie case of timeliness under the statutory exception.

We therefore affirm the superior court's order of dismissal.

Underlying facts and proceedings related to Clayton's trial

In 1987, following a jury trial, Clayton was convicted of the murder of Lisa Haverling and sentenced to a term of imprisonment of 99 years. We summarized the case against Clayton in his direct appeal, and we briefly restate the facts here.

Haverling's body was found in her apartment, face down with a rope around her legs and hands. She had been shot twice in the back of the head. She had a stab wound in her lower back, and her left wrist had been cut. Police found no signs of a forced entry or sexual assault, but Haverling was missing two rings, one of which was described by her friend as distinctive. The police found a .25 caliber shell casing underneath the bed.

The police subsequently received an anonymous tip that Terry Clayton had murdered Haverling. Eventually, the police contacted Henry Mason, a close friend of Clayton's. Mason told the police that his wife had provided the anonymous tip, and that he had been the source of her information. Mason agreed to cooperate with the police.

Mason reported that Clayton, who lived in an apartment building located adjacent to Haverling's, had previously spent an afternoon with Haverling and learned that she had money. According to Mason, Clayton said, "She's gone and she's mine." Clayton and Mason had previously committed burglaries together, and Mason told the police that he assumed Clayton intended to burglarize Haverling's apartment.

Mason later confronted Clayton about the murder. According to Mason, Clayton initially denied committing the murder but ultimately confessed to the killing. Mason said that Clayton told him that he had gone into Haverling's apartment and waited until she returned for lunch. He then surprised her and demanded that she write him two checks, one for $1,700 and one for $800. Mason testified that Clayton said he took Haverling upstairs, sexually assaulted her, and then tied her up. Clayton said he intended to leave at that point, but that he then decided to look more closely at Haverling's checkbook. He noticed that Haverling had written the checks out of sequence, in the middle of the checkbook. Clayton said that he became enraged and returned upstairs and shot Haverling.

After examining Haverling's checkbook, the police found that a check had been torn from the center of the book. At trial, the State introduced evidence that the check was written in Haverling's handwriting to Clayton for $800.

The police obtained a warrant to search Clayton's rented storage locker. In the locker, the police found both a .25 caliber pistol and a knife in a box with Clayton's fingerprints on it. FBI laboratory technicians testified that the bullets used to kill Haverling were discharged from this pistol, and that there were spots of human blood on both the knife and the pistol. (When interviewed, Clayton admitted that he owned a gun and knife similar to the ones found in his storage locker, but he stated that he had used the knife to cut steak.)

The police also discovered that Clayton had pawned a distinctive ring three days after the murder; one of Haverling's co-workers identified the ring as Haverling's. (When questioned about the ring, Clayton told the police that he had pawned the ring, but claimed he had obtained it in a drug deal a month prior.)

A witness who lived across the street from Clayton later testified at trial that Clayton's car was in the parking lot of the apartment complex all morning on the day of the murder, and that he saw Clayton come out of his apartment around 1:15 p.m. — just past the lunch hour during which Haverling was murdered.

The State also introduced the testimony of FBI Special Agent Chester Blythe, who conducted hair and fiber analysis on hairs recovered from Haverling's body and Clayton's clothing.

For the most part, Agent Blythe was very moderate in his claims. Blythe testified that microscopic hair comparisons could not be used to identify a person to the exclusion of others because "[t]his is not a positive association like a fingerprint." He also acknowledged that there was "no reliable study or statistic available" that could provide a percentage likelihood that two hairs were from the same person.

In accordance with these recognized limits, Blythe testified that a hair recovered from the sweatpants Clayton was wearing during his arrest resembled a pubic hair and that the hair was "consistent" with Haverling's and "could have come from her." Blythe also testified that wool fibers found on Clayton's jacket and pants were "consistent with" wool fibers that were taken from Haverling's skirt — noting that they "exhibited the same characteristics" and were both from a black sheep whose wool remained black even after the dyes were eliminated from the fiber. Lastly, Blythe testified that there were hairs on Clayton's jacket that were "consistent with" hairs taken from Haverling's cats.

But despite acknowledging the limits of microscopic hair comparison analysis, Agent Blythe also made statements that seemed to suggest that a positive identification could be made to the exclusion of others and that a percentage could be assigned to the likelihood of a match. Blythe testified, for example, that it was "likely" that the pubic hair found on Clayton's clothes belonged to Haverling, and he put the percentage of that likelihood as "a lot higher" than fifty percent. The State relied on Blythe's testimony at closing, offering the hair and fiber evidence as proof that Clayton had been in Haverling's apartment.

Clayton's defense at trial was that Mason had framed Clayton for the murder and that Mason was Haverling's real killer. Clayton presented evidence that Mason had a key to his storage locker (although there was also testimony suggesting that it would have been very difficult for Mason to have gained access to the storage locker area without Clayton being present). Clayton attacked Mason's credibility and the fact that he had been granted immunity for multiple unrelated property and drug crimes in exchange for his testimony.

Clayton also relied on a part of Agent Blythe's hair and fiber testimony that was favorable to Clayton. At trial, Blythe testified that he recovered a foreign hair from Haverling's dead body that was "consistent with" hair taken from Henry Mason, although it was longer than Mason's current hair style. Clayton introduced evidence that Mason shaved his head after the murder occurred, and Clayton used Agent Blythe's testimony to support his defense that Mason had killed Haverling and then "set up" Clayton by planting other evidence that incriminated Clayton.

The jury rejected this defense and found Clayton guilty of first-degree murder.

Post-conviction relief proceedings

Around 2013, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers began reviewing testimony and lab reports by FBI examiners involving microscopic hair analysis. In particular, the FBI identified some FBI examiners who had given testimony that "exceeded the limits of science by overstating the conclusions that may appropriately be drawn from a positive association between evidentiary hair and a known hair sample." Clayton was notified of this review in 2015 because Agent Blythe, the FBI hair analyst who testified in his case, was one of the criticized examiners.

In response, Clayton filed a pro se application for post-conviction relief and was appointed an attorney to help him with the post-conviction relief process. Clayton's application was filed nineteen years after the statute of limitations had expired.³

In 2016, the FBI sent a letter to the State of Alaska stating that it had reviewed the testimony of Agent Blythe in Clayton's case, and that it had concluded that certain statements in Blythe's microscopic hair testimony "exceeded the limits of the science." The letter indicated that the Innocence Project and the National Association of Criminal Defense Lawyers had also independently reviewed Blythe's testimony and they agreed with the FBI's...