Opinion
A-13278
01-12-2022
JEREMY LEE CASEY, Appellant, v. STATE OF ALASKA, Appellee.
Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Ryan T. Bravo, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, No. 4FA-18-00247 CR, Michael P. McConahy, Judge.
Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Ryan T. Bravo, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG JUDGE.
Jeremy Lee Casey was convicted, following a jury trial, of first-degree vehicle theft and misuse of license plates. The court sentenced Casey to the maximum term of imprisonment of 5 years for first-degree vehicle theft and to a consecutive 30-day term for improper use of license plates - a composite sentence of 5 years and 30 days to serve.
AS 11.46.360(a)(1) and AS 28.10.481, respectively.
On appeal, Casey challenges both his convictions and sentence. For the reasons explained in this opinion, we reject Casey's claims and affirm the judgment of the superior court.
Casey's challenge to the superior court's handling of evidence of an eyewitness show-up identification
Casey first argues that the superior court plainly erred in failing to suppress evidence of, and instruct the jury regarding, an eyewitness show-up identification. Because Casey did not raise these issues in the superior court, and the court therefore did not hold an evidentiary hearing on his suppression claim, we will describe the trial testimony in some detail.
At trial, Tim Clark testified that he was sitting in his parked car at the Polar Ice Arena in North Pole when he noticed a Toyota Tacoma that had no license plates drive up and park about two cars down from him, near another Toyota truck. A man got out of the Tacoma and went back and forth between the Tacoma and the other truck in a way that caused Clark to suspect that the man was removing the other truck's license plate. Clark called the Alaska State Troopers to report his observations, and a trooper arrived about ten minutes later.
Shortly thereafter, a different trooper observed the Tacoma driving northbound on the Richardson Highway. The troopers ultimately located the truck in a parking lot in Fairbanks. The truck was identified as having been stolen from a Fairbanks Fred Meyer store the day before. The rear license plate on the truck was not the proper plate for the truck, and the troopers found the correct plates in the bed of the truck. In the cab of the truck, the troopers found a cordless drill and four screws of the type that would be used to affix license plates.
Casey was the sole occupant of the truck, and he admitted to driving the vehicle. When questioned by the troopers, however, Casey denied being at the Polar Ice Arena earlier that day.
According to the responding troopers, Casey's clothing matched the description that Clark had given to the troopers - a Carhartt jacket and a hat with white lettering on it - although Casey's height and weight did not match Clark's estimate for the height and weight of the man he had observed.
Less than an hour after locating Casey, the troopers asked Clark to come to the station and make an identification. The troopers showed Clark the room where Casey was being held; Casey was the only person in the room. Clark identified Casey as the person he had seen earlier. He later testified that there was no doubt in his mind about the accuracy of his identification.
At trial, the owner of the Toyota Tacoma testified that he had reported his truck stolen from Fred Meyer the day before it was found, and that he did not know Casey and had not given him permission to drive his truck. Casey testified and denied stealing the truck or knowing it was stolen. He stated that he had borrowed it from a friend that day.
On appeal, Casey acknowledges that he never moved to suppress evidence of Clark's eyewitness identification. He argues, however, that the superior court should have sua sponte suppressed evidence of the identification. Noting that show-up procedures are disfavored in Alaska, he argues that it was obvious that the show-up identification in his case was unnecessary and improperly suggestive.
A "show-up" identification is a "procedure in which a witness is presented with a single suspect and asked if the suspect is the person who committed the crime." In Young v. State, the Alaska Supreme Court expressed concern with the use of show-up identifications and described the risks associated with them:
Young v. State, 374 P.3d 395, 420-21 (Alaska 2016) (citing Anderson v. State, 123 P.3d 1110, 1112 (Alaska App. 2005)).
Alaska courts have long restricted the use of showups as an identification procedure to where it is necessary under the circumstances. The problems with showups are apparent: in contrast to lineups and photo arrays, which allow a witness with a faulty memory to pick someone other than the suspect, every positive identification in a showup implicates the suspect. Showups seemingly provide little protection against witnesses who are inclined to guess, as witnesses participating in showups tend to base their identifications on clothing. Research shows that an innocent suspect who resembles the actual perpetrator is more likely to be incorrectly identified in a showup than in a lineup.
Showups can be reliable when they are conducted immediately after a crime, when the witness's memory is freshest; but research shows that the likelihood of a misidentification increases significantly with showups as little as two hours after the event.
Id. at 421 (citations omitted).
This Court has also expressed concern about the "inherently suggestive" nature of show-up identifications.
Anderson, 123P.3dat 1117; see also Tegoseak v. State, 221 P.3d 345, 350-60 (Alaska App. 2009) (discussing in depth the issues that arise from eyewitness identifications).
Despite these concerns, however, neither the supreme court nor this Court has ever held that show-up identifications aiQ perse inadmissible, or even presumptively inadmissible. Instead, the supreme court in Young explained that the ultimate test is whether the identification was reliable under the totality of the circumstances. While a defendant need only present "some evidence of suggestiveness that could lead to a mistaken identification" in order to obtain a suppression hearing, "the defendant retains the burden of proving at that hearing a 'very substantial likelihood of irreparable misidentification.' "
See Young, 374 P.3d at 426-27 (declining to "adopt a rule of per se exclusion for eyewitness identifications that are ... subject to influence by the State," such as show-ups).
Id. at 427.
Id. (quoting State v. Henderson, 27 A.3d 872, 920 (N.J. 2011)).
Here, because Casey never moved to suppress Clark's eyewitness identification of Casey, no suppression hearing was held. As such, the State was not on notice that it needed to present evidence regarding the circumstances of the show-up for purposes of countering a suppression claim. The superior court was likewise not on notice that it needed to rule on the issue. As a result, our knowledge of the circumstances surrounding the identification is limited to what we can glean from the trial testimony. And as Casey expressly acknowledges on appeal, the record is often unclear as to these circumstances.
We addressed a similar situation in Pierce v. State In Pierce, the defendant filed a motion that included a generic request to suppress evidence of an eyewitness identification, along with a much more detailed request to sever the charged offenses. The trial court held an evidentiary hearing on the motion, but Pierce never mentioned the suppression issue at that hearing, and instead focused entirely on the issue of severance. Accordingly, the State did not discuss the suppression issue in its argument, and the judge never made findings of fact regarding the witness's identification. Under those circumstances, we held that Pierce had failed to preserve his suppression argument for appeal, and that he had also failed to establish plain error.
Pierce v. State, 261 P.3d 428 (Alaska App. 2011).
Id. at 429-30.
Id. at 430.
Id. at 433-34.
Id. at 434.
In this case, Casey did not even file a motion seeking to suppress the eyewitness identification or request an evidentiary hearing on the issue. As in Pierce, we would therefore be required to decide this issue "in a factual vacuum, or under hypothetical facts, or under 'facts' that are actually counter-factual."
Id. at 433 ("In many instances, proper resolution of a litigant's request or objection will require the trial judge to make findings regarding the weight, credibility, or accuracy of witnesses' testimony. . . . The preservation rule ensures that the trial judge has made the required findings, and/or exercised the required discretion, before the appellate court takes up the issue.").
For these reasons, we conclude that Casey has failed to preserve this issue for appeal. We similarly decline to find plain error. Given the lack of development of the evidence, we could find plain error only if there were a perse rule against show-up identifications - or perhaps if the record revealed singularly egregious conduct. But the record regarding the identification is limited and thus does not reflect singularly egregious conduct.
See Moreau v. State, 588 P.2d 275, 280 & n.13 (Alaska 1978) (holding that the suppression of illegally obtained evidence ordinarily cannot be raised for the first time on appeal, but recognizing that "singularly egregious violations" might be considered for the first time on appeal). Casey argues that the rule in Moreau should be limited to the suppression of physical evidence, and distinguishes eyewitness identifications on the grounds that they can compromise the reliability of the verdict. But even assuming that Moreau should not apply under the circumstances of this case, and that unpreserved suppression claims regarding identifications can be raised for the first time on appeal as a matter of plain error, the insufficient record precludes a finding of plain error in this case.
Casey also argues that the superior court plainly erred by failing to sua sponte instruct the jury on the factors to consider when evaluating the reliability of eyewitness identifications. We agree that Casey would have been entitled to such an instruction if he had requested one. As the Alaska Supreme Court held in Young, "If eyewitness identification is a significant issue in a case, the trial court should issue an appropriate jury instruction that sets out the relevant factors affecting reliability."
Young v. State, 374 P.3d 395, 428 (Alaska 2016).
But Casey never requested such an instruction, and he must therefore show plain error. We conclude that Casey has failed to establish plain error - in particular, he has not shown that the failure to give an eyewitness identification instruction was prejudicial.
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011) (recognizing that "[p]lain error is an error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial"). Casey argues that the failure to give the jury instruction amounted to a constitutional error and therefore should be subjected to the higher "harmless beyond a reasonable doubt" standard. See id. at 770-73. But given the corroborating evidence in this case, any error "was not of constitutional dimension." Young, 374 P.3d at 430 & n.233.
First, Clark's identification had significant corroboration: Casey was arrested after he was found in the stolen truck and admitted to driving it. The troopers testified that the truck Casey was driving and the clothes Casey was wearing matched Clark's descriptions. The truck had the wrong license plate, and the correct license plates were in the bed of the truck - a situation consistent with what Clark described. And a drill and four screws were in the cab of the truck, which was consistent with someone having swapped out the license plates.
Second, the jury was aware of the potential problems with Clark's identification. On cross-examination, the trooper who organized the show-up acknowledged that a double-blind identification or a photo lineup would have been more reliable than a show-up identification. And in closing argument, Casey's attorney stressed the unreliability of show-up procedures.
Under these circumstances, we conclude that the absence of an instruction on the factors affecting the reliability of eyewitness identifications did not constitute plain error.
Casey's challenge to his sentence
As a third felony offender, Casey faced a presumptive sentencing range of 2 to 5 years for his first-degree vehicle theft conviction. Casey was subject to a presumptive range of 0 to 30 days on the misuse of license plates conviction. Even though aggravating factors were not strictly necessary as to the felony conviction since the high end of the applicable presumptive range was the same as the statutory maximum sentence, the State proposed three aggravating factors under AS 12.55.155(c) based on Casey's criminal history - (c)(l5), that Casey had three or more prior felony convictions; (c)(2O), that Casey was on felony probation at the time of the offenses in this case; and (c)(31), that Casey had five or more convictions for class A misdemeanors. Casey did not object to these aggravators, and the court found that they were established. Ultimately, the court imposed a composite sentence of 5 years and 30 days to serve.
Former AS 12.55.125(e)(3) (2018).
Former AS 12.55.135(a)(2) (2018).
AS 12.55.125(e).
On appeal, Casey raises a single challenge to his sentence, arguing that his sentence violates the Neal-Mutschler rule. Under the Neal-Mutschler rule, before a sentencing judge imposes consecutive sentences that exceed the maximum term of imprisonment for the defendant's most serious offense, the judge must find that confinement for the composite term is necessary to protect the public or to satisfy another sentencing goal. But even when the judge has not made an explicit Neal-Mutschler finding, an appellate court may affirm the sentence if the finding is implicit in the sentencing record - i.e., "if the record contains ample evidence that [the defendant] presents a risk of continued criminal conduct which would seriously threaten public safety."
See Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977).
Neal, 628 P.2d at 21, as modified in Phelps v. State, 236 P.3d 381, 393 (Alaska App. 2010).
Waters v. State, 64 P.3d 169, 174 (Alaska App. 2003) (quoting Neal, 628 P.2d at 21).
In this case, the superior court did not make an explicit finding under Neal-Mutschler. But the superior court found that substantial jail time was necessary to prevent further criminal conduct by Casey and that Casey was a worst offender both because of the seriousness of the vehicle theft offense, which involved a "concerted, intelligent" effort to avoid detection after stealing the vehicle, and because of Casey's extensive criminal history, which included over twenty-five prior criminal convictions. The court also noted that Casey was on felony probation at the time of the offenses in this case, and that he had multiple prior probation violations.
Having reviewed the record, we conclude that the court provided sufficient reasons for imposing a composite sentence above the maximum term of imprisonment of 5 years for first-degree vehicle theft.
Conclusion
The judgment of the superior court is AFFIRMED.