Opinion
Court of Appeals No. A-10396.
December 7, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Patrick J. McKay, Judge, Trial Court No. 3AN-91-5453 CR.
David Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
John Carr appeals his conviction for felony failure to appear, which is based on his failure to show up at the third and last day of his 1991 trial for felony assault. Carr argues that his conviction in this case should be reversed because the trial judge improperly allowed the State to introduce evidence that he was convicted at the conclusion of the 1991 trial. Background
In 1991, Carr failed to appear for the third and final day of his trial for third-degree assault. A bench warrant was issued for Carr's arrest, and the trial continued in his absence, resulting in a conviction. In 2007, Carr was extradited from Pennsylvania, and in 2008, he was tried in Alaska for felony failure to appear.
See former AS 12.30.060 (1998).
At the 2008 trial, Carr testified that he did not know he was required to appear on the last day of his 1991 trial. He testified that after the second day of trial, he went to a doctor who told him he should not continue with the trial. He stated that he called the public defender's office twice to speak with his attorney, but did not reach him, and was told by the receptionist that the trial had been continued.
Darcy Hill, Carr's third-party custodian in 1991, also testified at Carr's 2008 trial. According to Hill, she and Carr went home after the second day of trial, and Carr knew he had to be in court the next morning. When Hill went to bed, she set her alarm for 7 a.m., but when she awoke the next morning, it was 8 a.m. and her alarm clock had been turned off. She ran to the living room to look for Carr, but he was gone. Hill did not see or hear from Carr again until she was called to testify at his 2008 trial.
Carr's attorney at the 1991 trial also testified at the 2008 trial. The attorney testified that, at the end of the second day of trial, the trial judge instructed everyone to return to the court at 8:15 the following morning to resume the trial. The attorney testified that after he and Carr left court that day he did not see or hear from Carr again.
As noted above, Carr's defense was that he believed that his trial was continued. Shortly before the 2008 trial began, Carr asked the court to bar the State from informing the jury that the underlying offense for which he failed to appear was a felony assault. The State objected, arguing that the felony nature of the underlying offense was relevant to establish Carr's motive for failing to appear. Superior Court Judge Patrick J. McKay ruled that the State could refer to the fact that the underlying offense was a felony, but could not disclose that the charge was a felony assault.
The next day, Carr raised the matter again, this time arguing that evidence of his conviction should be excluded. In response, the State argued that the evidence was relevant to Carr's motive for fleeing, and the trial judge issued a written order allowing the State to introduce the conviction.
During the 2008 trial, both Carr's attorney and the prosecutor from the 1991 trial testified that Carr was convicted of the underlying felony after he failed to appear for the last day of the trial. The State argued, during closing arguments, that Carr had seen "the writing on the wall" and decided to flee to avoid going to jail. The jury found Carr guilty of felony failure to appear.
Discussion
On appeal, Carr argues that his conviction at the 1991 trial was not relevant to his motive because, at the time he failed to appear, he could not have known that he would be convicted. Under Alaska Evidence Rule 404(b)(1), prior convictions may not be admitted for the purpose of showing a person's propensity to commit crimes, but the rule does not bar the evidence if admitted for other purposes, such as to prove motive, intent, or absence of mistake or accident. When the State identifies one of these purposes for admission of the evidence, the trial judge must weigh the danger that jurors will presume the defendant's guilt from these prior criminal acts against the probative value of the evidence.
See Alaska Evid. R. 403; Morrow v. State, 80 P.3d 262, 268 (Alaska App. 2003).
In Morrow v. State, the defendant failed to appear at a felony sentencing hearing and then, at his failure-to-appear trial, claimed he had mistakenly written down the wrong date. On appeal, this court held the evidence that Morrow failed to appear for a sentencing hearing in a felony matter was relevant for a purpose other than to establish that he had committed a felony. We noted that the fact that Morrow missed a felony sentencing — as opposed to an insignificant hearing in a misdemeanor case — tended to make his claim of mistake less believable. We held that the evidence that Morrow missed a felony sentencing was relevant not only to prove that Morrow was guilty of felony level failure to appear, but also to rebut his claim of mistake by establishing his motive to avoid the sentencing hearing.
Id. at 266-67.
Id. at 266.
Id.
In Carr's case, however, we conclude that the evidence that Carr was ultimately convicted had very little relevance to his state of mind when he left in the middle of the trial. Carr could not know for certain that he would be convicted the following day. The jury's verdict does not necessarily show the jury's evaluation of the strength of the case when Carr absconded. And the jury's opinion of the strength of the case was not necessarily the same as Carr's opinion. So the evidence of Carr's conviction had minimal relevance to his motive to flee.
But we also conclude that the prejudice from this evidence was minimal. The court properly allowed the State to present evidence that Carr was charged with a felony crime. Other courts considering failure-to-appear cases have allowed proof of the underlying crime and the possible punishment to show the strength of the defendant's motive to flee.
See id. at 266-67.
See, e.g., People v. Penrod, 892 P.2d 383, 385 (Colo. App. 1994); State v. Outlaw, 949 A.2d 544, 552 (Conn. App. 2008); State v. Candito, 493 A.2d 250, 254 (Conn. App. 1985); Hartness v. State, 738 P.2d 552, 553 (Okla. Crim. App. 1987).
Similarly, when a defendant flees during trial, the prosecution may be entitled to show the strength of the State's case at that time to establish the strength of the defendant's motive to flee. In this case, since the prosecution was entitled to show the nature of the charge and the strength of its case when Carr absconded, the additional evidence that he was later convicted was not especially prejudicial.
Moreover, the trial judge expressly instructed the jury to consider the evidence of Carr's conviction only for its relevance to Carr's motive or state of mind on the day of his flight, and for no other purpose. This instruction mitigated the potential that the jury would unfairly presume that Carr had a propensity for crime. Accordingly, we conclude that, if the trial court admitted this evidence in error, the error did not substantially affect the jury's verdict. Conclusion
See Alaska Evid. R. 103(a); Love v. State, 457 P.2d 622, 631-32 (Alaska 1969).
We AFFIRM the superior court's judgment.