Opinion
Court of Appeals No. A-10930 Trial Court No. 3AN-09-1588 CR No. 6050
04-30-2014
ANDREW ALLEN AMAROK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John Page, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge.
Appearances: John Page, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge ALLARD.
Andrew Allen Amarok was convicted of first-degree murder for killing his stepfather, Dennis Kane. Amarok appeals, arguing that he was deprived of his due process right to present a defense when the superior court ruled prior to trial that if he introduced a portion of another person's confession, the entire confession (including the portion directly implicating Amarok) would be admitted. For the reasons explained below, we conclude that Amarok's due process argument is without merit.
Amarok also argues that the superior court erred in refusing to grant a mistrial after a witness briefly mentioned that Amarok had spent time in jail. We conclude that the superior court's ruling was not an abuse of discretion. We therefore affirm Amarok's conviction.
Factual background
In January 2003, Dennis Kane was found murdered in his Anchorage home. In 2009, his stepson Andrew Allen Amarok was indicted for first-degree murder for Kane's death.
AS 11.41.100(a)(1)(A).
Kane died from multiple stab wounds and blunt force injuries. His body was found handcuffed, and lying in a pool of blood. His blood was also spread throughout the house. At trial, the State argued that a bloodstain on the bottom of the bathtub resembled the letter "A" and was an attempt by Kane to identify his killer.
Amarok's mother had died several years before the murder, and since that time the relationship between Amarok and his stepfather had become increasingly fractured. Amarok was upset that Kane had inherited money from Amarok's mother and that Kane refused to give Amarok money. According to a family member who testified at trial, Kane was unwilling to give money to Amarok because he believed Amarok was "in bad shape" and took "too [many] drugs."
Shortly before the murder, Amarok and Kane had been drinking alcohol together at Kane's house. A friend saw them get into an argument, during which Kane swung at Amarok and chased him out of the house.
At this time, Amarok was living in a nearby trailer with a friend, Derek Ludington, and the owner of the trailer, James Steele. Ludington had recently been released from prison, and was known to wear a pair of handcuffs on his belt. Another friend of Amarok's, Billy Norton, also spent time at the trailer and was known to have a serious drug problem.
At some point during the murder investigation, Amarok's former girlfriend, Sonya Baldwin, came forward claiming that Amarok had confessed to killing Kane with Derek Ludington. Amarok told her that he and Kane had been drinking and "things had gotten out of hand." Amarok also told her that before he killed Kane, he told Kane he was killing him because of the way Kane treated his mother.
The State called Baldwin as a witness at trial. On cross-examination, she admitted that she had originally told the police about Amarok's confession in exchange for dismissal of forgery charges against her.
Ludington's alleged confession to Steele and Amarok's request to use a modified version of this confession as part of his defense
During the initial police investigation of Kane's murder, James Steele told the police that Ludington had confessed to him that he and Amarok killed Kane. (The details of this purported confession remain unknown because there was no offer of proof regarding the contents of the confession. However, Amarok and the State agree on the general nature of what Steele told the police.)
Apparently, Steele told the police that Ludington told him that he and Amarok killed Kane. Ludington evidently told Steele that he had handcuffed Kane, thinking that they were roughing up a drug dealer. However, once he realized (from what Amarok and Kane said to each other) that Kane was Amarok's stepfather, he left the house and "Amarok did the rest of the deed."
Ludington was unavailable to testify at trial because he invoked his Fifth Amendment privilege against self-incrimination. However, Steele was available as a witness.
Prior to trial, Amarok notified the trial court that he intended to argue that Derek Ludington and Billy Norton (as opposed to Ludington and Amarok) had killed Kane, and that, as part of that defense, he intended to call Steele as a witness and introduce a portion of Ludington's alleged confession to Steele. Amarok argued that the parts of Ludington's confession where he admitted to his own involvement in the murder qualified as statements against penal interest and were therefore admissible under Alaska Evidence Rule 804(b)(3). But he asserted that the rest of the confession (including Ludington's identification of Amarok as the other participant) remained inadmissible hearsay and that admission of those portions would violate the confrontation clause.
The prosecutor objected to Amarok's plan to introduce only parts of Ludington's alleged confession. The prosecutor indicated that he did not intend to introduce the alleged confession in the State's own case-in-chief out of concern that the confession might qualify as testimonial under the confrontation clause. But he argued that the entire confession was admissible as a statement against penal interest. The prosecutor also argued that Amarok's proposed abridgement of the confession was highly misleading, and that if Amarok wanted to introduce parts of the confession, the entire confession should come in.
The superior court agreed with the State that Amarok's proposed use of the abridged confession would be misleading to the jury. The court therefore ruled that if Amarok introduced the parts of Ludington's confession that he wanted, the State would be allowed to introduce the remainder. The court also ruled that the entire confession was admissible as a statement against penal interest under Evidence Rule 804(b)(3), and that it did not believe that this type of confession to a friend would qualify as testimonial under the confrontation clause.
After the trial court made its rulings, neither party sought to introduce any part of the confession at trial. Steele took the stand, but he testified only regarding other matters, and the jury did not hear any testimony regarding Ludington's alleged confession.
The jury subsequently convicted Amarok of first-degree murder, and the superior court sentenced him to 99 years to serve. Amarok now appeals.
Why we reject Amarok's contention that his due process right to present a defense was violated by the superior court's pretrial rulings
On appeal, Amarok argues that the trial court erroneously ruled that the entire confession was admissible under Evidence Rule 804(b)(3) and the confrontation clause, and that these erroneous rulings forced him to abandon an important piece of evidence in his defense.
But these particular rulings, even if erroneous, are largely irrelevant to Amarok's appeal. The confrontation clause prohibits testimonial evidence from being admitted at trial only when it is offered by the State against the defendant. Here, the State never introduced any part of the confession against Amarok at trial, and therefore the superior court's ruling, even if erroneous, could not have violated Amarok's confrontation rights. Likewise, because the jury never heard any part of Ludington's confession, the trial court's ruling that the entire confession was admissible under Evidence Rule 804(b)(3), even if error, could not have directly prejudiced Amarok's case.
See Clark v. State, 199 P.3d 1203, 1207 (Alaska App. 2009).
Amarok asserts that he was nevertheless indirectly prejudiced by the trial court's pretrial rulings because they led to his decision to forgo a critical part of his defense. But there are two problems with this argument:
First, without knowing exactly what the proposed evidence would have been, we cannot determine what effect, if any, it might have had on the jury. As we have previously held in Sam v. State and Wickham v. State, we cannot determine what prejudice might have resulted from evidence that was never presented, and will not do so when the result "would amount to pure speculation" on our part. Indeed, even on the inadequate record we have before us, Amarok's claim of prejudice does not appear particularly strong. We note that Ludington's confession — even when reduced to its redacted form — was not particularly exculpatory given the State's theory that Ludington and Amarok committed the murder together and Baldwin's corroborating testimony that Amarok had confessed to murdering Kane with Ludington.
842 P.2d 596 (Alaska App. 1992).
796 P.2d 1354 (Alaska App. 1990).
Sam, 842 P.2d at 599; see also Wickham, 796 P.2d at 1357 (citing Luce v. United States, 469 U.S. 38, 41-42 (1984)).
Second, contrary to the way Amarok has framed the issues on appeal, the heart of the superior court's pretrial ruling was not its analysis of Evidence Rule 804(b)(3) or the confrontation clause, but rather its determination that it would be affirmatively misleading to allow Amarok to present Ludington's confession in the abridged form he intended. We note that Amarok's proposed abridgement did far more than just redact the "blame-shifting" statements from Ludington's confession; it also redacted Ludington's identification of Amarok as the other person involved in the murder. The effect would have been to take Ludington's confession, which directly supported the State's theory that Ludington and Amarok killed Kane, and redact it in such a fashion that the confession seemed to support Amarok's defense theory that Ludington and Norton killed Kane. As the superior court correctly recognized, introducing Ludington's confession in this manner would have been highly misleading.
Although the trial court did not explicitly identify it as such, it is clear that the underlying basis for the trial court's ruling was the common-law rule of testimonial completeness. Under this rule, portions of a statement that might otherwise be inadmissible may nevertheless become admissible if their exclusion would directly mislead the jury about the overall "tenor and effect" of the testimony.
See Sipary v. State, 91 P.3d 296, 299 (Alaska App. 2004) (discussing the common-law rule of completeness and distinguishing it from the narrower evidentiary rule of completeness contained in Evidence Rule 106 which only applies to written or recorded statements).
Id. (quoting 7 J. Wigmore, Evidence in Trials at Common Law (Chadbourn rev. 1978), § 2113, p. 653).
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We conclude that the superior court properly ruled that Amarok could not redact Ludington's confession in the manner he intended. We likewise reject Amarok's contention that his due process right to present a defense includes the right to present evidence in an abridged and affirmatively misleading manner, while denying the State any opportunity to introduce clarifying or rebutting evidence. Finally, because Amarok's request to introduce Ludington's alleged confession was directly conditioned on his ability to keep Ludington's identification of Amarok away from the jury, we do not need to address whether there may have been parts of Ludington's confession that were inadmissible even under the rule of completeness.
Why we conclude that the superior court did not abuse its discretion when it denied Amarok's motion for a mistrial after a witness briefly mentioned that Amarok had previously been in jail
Amarok raises one other claim on appeal: he challenges the superior court's denial of his mid-trial motion for a mistrial.
During the prosecutor's examination of witness Sonya Baldwin, Baldwin testified that it was difficult to keep track of the exact time when particular events happened because she was using drugs at the time, her relationship with Amarok was "on and off," and she and Amarok were both in and out of jail.
Amarok objected to Baldwin's reference to the fact that he had been in jail in the past. In response, the trial judge offered to give the jury a cautionary instruction. Amarok declined the cautionary instruction and instead moved for a mistrial, arguing that the reference to Amarok's past jail time was so highly prejudicial that it could not be cured with a jury instruction.
The superior court denied Amarok's request for a mistrial. The court noted that Baldwin's reference to Amarok's having been in jail was "fleeting" and that her remark had not been solicited by the prosecutor. The court also noted that the jury was already aware that Amarok and Baldwin had abused drugs in the past. In this context, the trial judge concluded that Baldwin's brief mention of Amarok's previous time in jail did not warrant a mistrial.
On appeal, Amarok contends that Baldwin's remark bolstered the State's portrayal of him as a "bad person" and "a hard-core user of illegal drugs" who had "repeated periods of incarceration." But given the limited nature of Baldwin's comment and the trial judge's finding that Baldwin's comment was unsolicited and fleeting, we conclude that the trial judge did not abuse his discretion when he denied Amarok's request for a mistrial.
Conclusion
The superior court's judgment is AFFIRMED.