Opinion
A-13605 7066
08-16-2023
CHRISTOPHER E. CLEVELAND, Appellant, v. STATE OF ALASKA, Appellee.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Second Judicial District, Trial Court No. 2KB-15-00419 CR Kotzebue, Angela Greene and Eric B. Smith, Judges.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG. JUDGE
Following a jury trial, Christopher E. Cleveland was convicted of one count of first-degree murder, four counts of attempted first-degree murder, and multiple counts of third-degree assault after he shot at numerous people with a rifle from his porch in Selawik, killing one of them.
AS 11.41.100(a)(1)(A), AS 11.41.100(a)(1)(A) & AS 11.31.100(a), and AS 11.41.220(a)(1)(A) & (B), respectively. Cleveland was also convicted of second-degree misconduct involving weapons, second-degree burglary, manufacturing or selling alcohol without a license in a local option community, and two counts of furnishing alcohol to a minor. AS 11.61.195(a)(3)(B), AS 11.46.310, AS 04.16.200(b), and AS 04.16.051(d)(3), respectively.
On appeal, Cleveland argues that, during the testimony of one of the State's witnesses, the trial judge made remarks that inappropriately complimented the character and performance of the witness, a thirteen-year-old child. While there was no objection to the comments at the time, we agree that the comments went too far. But given the other evidence that was presented at trial and the strength of the State's case against Cleveland, we conclude that this error did not prejudice the jury.
Cleveland also argues that the trial judge erred when she did not disclose to the jury the full extent of her conversation with another one of the State's witnesses as to whether the witness could receive a sentence reduction in exchange for his testimony. (The witness had previously been convicted of unrelated crimes, and outside the presence of the jury - but in front of the parties - the witness asked the judge whether he could receive a sentence reduction in exchange for his testimony.) Cleveland also did not object on this point in the superior court. For the reasons set out in this decision, we conclude that the judge did not plainly err.
Finally, Cleveland notes that his judgment does not accurately reflect the merger of three of the jury's verdicts for third-degree assault into Cleveland's other convictions. The State concedes error. We agree with the parties that the judgment is incorrect in this limited respect, and we remand this case to the superior court for the purpose of amending the judgment to correct the error.
Factual and procedural background
One evening in the summer of 2015, Christopher Cleveland, his girlfriend Jenny Okpeaha, and several other people were drinking at Cleveland's house. At some point, Cleveland and Okpeaha got into an argument and Cleveland retrieved his rifle. Okpeaha later testified that Cleveland hit her in the head twice with the butt of the rifle, and then told her that he was going to get bullets from his room and shoot her. Okpeaha fled Cleveland's house, and, as she was running away, she heard gunshots.
McKayla Ticket and Wade Cleveland were also at Cleveland's house during this incident. According to Ticket's testimony, she and Wade fell asleep in one of the bedrooms and awoke to Cleveland "hollering" about going to get his gun. Cleveland then came into the bedroom and told Ticket and Wade to "get out of his house before he shoot[s] [them]." The two left Cleveland's house and began walking toward a nearby bridge when Ticket heard Cleveland come outside his home and begin yelling. Ticket testified that she could see Cleveland point his gun toward Wade and then she heard gunshots - causing her to flee into someone else's house.
For clarity, we will refer to Wade Cleveland as "Wade" in this opinion.
Maynard Foster, Cleveland's nephew, was at a nearby house on the night of the shooting. Foster testified that he went outside when he heard gunshots and saw "Wade running, and then . . . stop, then fall, after [Cleveland] shoot [sic]." Foster testified that Wade was near the bridge when he dropped to the ground.
The village police officer, Brent Norton, testified he was on patrol on his four-wheeler on the night of the shooting. Norton did not see Cleveland shoot Wade, but he testified that he first saw Wade walking from Cleveland's house toward the bridge, and then minutes later observed Wade "laid out on the boardwalks." Norton testified that he went to rouse Wade, but Cleveland came out of his house, threatened to shoot Norton, and then fired shots at him.
Norton retreated, and later returned with two other individuals - Garrett Kelly and Elvina Pete - to try and get to Wade. Cleveland again began shooting, and Norton and Pete testified that they could hear bullets hitting the bridge behind them. Norton, Pete, and Kelly were not injured in the shooting, and they were eventually able to retrieve Wade's body. Wade was pronounced dead, and the medical examiner later determined that he died from a gunshot wound to his torso.
A grand jury indicted Cleveland on twenty-four charges, including one count of first-degree murder, six counts of attempted first-degree murder, and eight counts of third-degree assault.
Cleveland's case proceeded to a jury trial, with Superior Court Judge Angela Greene presiding. Following trial, the jury found Cleveland guilty of the following counts: (1) one count of first-degree murder; (2) four counts of attempted first-degree murder; (3) eight counts of third-degree assault; (4) second-degree misconduct involving weapons; (5) second-degree burglary; (6) manufacturing or selling alcohol without a license in a local option community; (7) and two counts of furnishing alcohol to a minor in a local option community. The jury acquitted Cleveland of two counts of attempted murder. The court also dismissed several other charges and merged three of the third-degree assault verdicts with other convictions.
AS 11.41.100(a)(1)(A), AS 11.41.100(a)(1)(A) & AS 11.31.100(a), AS 11.41.220(a)(1)(A) & (B), AS 11.61.195(a)(3)(B), AS 11.46.310, AS 04.16.200(b), and AS 04.16.051(d)(3), respectively.
This appeal followed.
Cleveland's claim that the trial judge erred by commenting before the jury on the character and performance of one of the State's witnesses
At trial, the State called Maynard Foster as a witness. Foster was twelve years old at the time of the shooting, and thirteen years old at the time of his testimony.
Throughout his testimony, Foster had trouble remembering key details and repeatedly gave short, one-word answers to the prosecutor's questions. The prosecutor therefore sought to play a recording of Foster's interview with a trooper to refresh his memory. While the prosecutor prepared the recording, the trial judge asked Foster a series of questions, all while the jury was present in the courtroom:
Judge: What grade are you in?
Foster: Eighth.
Judge: What's your favorite subject?
Foster: Math.
Judge: Yeah? Are you good at it?
Foster: Yeah.
Judge: You do algebra yet?
Foster: No.
Judge: Oh, well, you'll probably do pretty well. You add up lots of numbers?
Foster: Yeah.
Judge: Okay. Well, that's good. You're pretty smart then, huh? Mr. Foster? You're pretty smart? Maybe? You play basketball?
Foster: Yeah.
Judge: For Selawik?
Foster: Yeah. Judge: What position do you play?
Foster: I don't know.
Judge: Whatever they need?
Foster: Whatever they need, yeah.
Judge: Okay. How long you been doing that?
Foster: Since last year.
Judge: Yeah? Do you like it?
Foster: Yeah.
Judge: Well, good. How does Selawik do when it plays other schools?
Foster: Good.
Judge: Yeah? You win a lot - you win some of the games?
Foster: Yeah.
Judge: Well, that's great. That's great. What do you guys do when you win? Do they give you, like, pizzas or anything like that?
Foster: No.
Judge: No? What do you - anything special, or -
Foster: Can't give us anything when we win.
Judge: What's that? Foster: Can't give us anything when we win.
Judge: Why?
Foster: I don't know.
Judge: Oh. All right. What else do you like about school?
Foster: I don't know.
Judge: Okay. Eighth grade, you're getting into high school next year, huh?
Foster: Yep. Judge: That's a big step. You nervous about that?
Foster: Unh-unh (negative).
Judge: No? You got that covered? Foster: Yeah.
Judge: All right. Well, I'm glad to hear that. Because you're a smart guy like that, and you do sports, you'll do really well in high school, right?
Foster: Yeah.
Judge: Yeah, you will. I'm sure of it. Okay. Looks like they might be ready to find the recording there on that computer. So, I'll let you turn to [the prosecutor] now. She'll ask you questions about this stuff. Okay?
Foster: Yeah.
The State then played the interview Foster gave to the trooper after the shooting, and Foster resumed his testimony. At the end of his direct examination, the trial judge again addressed Foster in front of the jury:
Judge: - we'll be back, and then like I said, there's more water up there if you want it, and you're doing great. Okay?
Foster: Yeah.
The judge then admonished Foster not to discuss his testimony with anyone before the end of trial. When Foster indicated that he understood, the judge responded:
Judge: All right. I can tell you're very mature, and you're smart, and you're doing a very adult thing here today, and the Court appreciates it. And I'll be back in about 15 minutes.
Foster: Yeah.And later, when Foster was done testifying, the trial judge stated:
Judge: All right. Mr. Foster, you did good, and you're free to go. You can go ahead and leave, and I thank you for coming in, and for handling yourself with such respect. Okay?
Foster: Yeah.
Judge: Tell your mom you're a good kid.
On appeal, Cleveland argues that the trial judge's praise of Foster - calling him a "smart guy," "very mature," and a "good kid" - and complimentary comments regarding his testimony - that he "did good" and "handl[ed] himself with such respect" - were improper and prejudicial. Cleveland's attorney never objected to any of the judge's comments regarding Foster's character or performance on the stand, and he must therefore show plain error.
See Adams v. State, 261 P.3d 758, 773 (Alaska 2011).
While judges have the authority to ask their own questions of a party's witness, we have cautioned that judges should nevertheless be "guarded so as not to constitute an implied comment" on the merits of the case. Indeed, as another state court has observed, a judge's "participation by questioning or comment must be scrupulously limited, lest the [judge], consciously or unconsciously, indicate to the jury [their] opinion on the evidence or on the credibility of a witness." And specifically in the context of testimony by children, other jurisdictions have held that a trial judge "must not, either by her words or acts, give the jury the impression that the judge finds the child's testimony credible," even where the judge intended "only to relax a frightened minor witness."
Cook v. State, 36 P.3d 710, 725 (Alaska App. 2001) (quoting Alaska R. Evid. 614(b) cmt.).
State v. Cepec, 75 N.E.3d 1185, 1204 (Ohio 2016) (citations omitted); see also Romero v. State, 785 P.2d 904, 906 (Alaska App. 1990) (explaining that "[t]rial judge participation in the examination of the testifying defendant is acutely objectionable where there is any suggestion that the judge has an opinion regarding the credibility of the defendant or the plausibility of the events related by the defendant" (internal quotations and citation omitted)).
People v. Rush, 620 N.E.2d 1262, 1266 (Ill.App. 1993) (citing State v. Suttles, 767 S.W.2d 403, 406-07 (Tenn. 1989), and State v. Zamorsky, 387 A.2d 1227, 1230-31 (N.J.Super. App. Div. 1978)); see also State v. Chappell, 987 P.2d 1114, 1117-18 (Kan. App. 1999) (holding that the judge erred by stating, after a preliminary voir dire of a child witness for competency, that "she has answered all the questions truthfully ... and is capable to testify here as a witness"); People v. Rogers, 800 P.2d 1327, 1328 (Colo.App. 1990) (holding that the judge erred by escorting the child witness to the stand); State v. Cook, 485 So.2d 606, 609 (La.App. 1986) (holding that the judge erred by "reward[ing] the child witness with candy in the presence of the jury").
In this case, the State acknowledges that the trial judge "may have gone too far when she complimented Foster on his intelligence and maturity and said that he had done well and was a 'good kid.'" We agree. The judge's comments commending the witness's performance and complimenting his character went beyond the neutral questioning courts are permitted and carried the risk of influencing the jury's evaluation of Foster's credibility.
See United States v. Marquez-Perez, 835 F.3d 153, 158 (1st Cir. 2016) (stating that judges cannot "favor[] one party or appear[] partial" and "[t]hey should be most cautious in front of the jury, which may be vulnerable to judges' 'lightest word or intimation'" (citations omitted)).
We acknowledge that the judge's comments were likely well-intentioned, and we do not question the "appropriateness of the motivation of the trial judge."Indeed, Cleveland's attorney apparently viewed the comments in that context as he did not raise any concerns with the judge at that time. But the laudatory questioning was unrelated to the merits of the case at hand and seemingly designed solely to put the child at ease - conduct that was outside the judge's role and could have been perceived by the jury as an endorsement of the child's credibility.
Rogers, 800 P.2d at 1329.
Id. at 1328-29 (explaining that a judge must "avoid any statement or action that could be construed by a juror as an endorsement of the child[] [witness's] credibility").
That said, we ultimately conclude that, in the context of this case, the trial judge's comments were not so prejudicial as to deny Cleveland a fair trial and warrant reversal of his convictions.
See Romero, 785 P.2d at 906 (examining whether judge's improper questioning was "so prejudicial as to deny the defendant a fair trial").
At trial, Cleveland did not deny shooting Wade or shooting his rifle in the general direction of others; rather, he argued that he lacked the requisite intent for first-degree murder. That is, he argued that he did not intend to shoot and kill Wade.
On appeal, Cleveland argues that Foster's testimony was crucial for the State's case because he was the only witness who actually saw Wade when he was shot, and the troopers used Foster's interview to establish the distance between Cleveland and Wade when Wade was shot (thereby allowing the State to argue that, because Cleveland was close to Wade, he intended to shoot him).
But the record reflects that there was ample other evidence demonstrating the distance between Cleveland and Wade during the shooting. One witness, Brent Norton, testified that he found Wade's body about 100 yards from Cleveland's house, "pretty close" to the bridge. McKayla Ticket testified multiple times that she saw Cleveland aim his rifle at Wade; she also testified that Cleveland was shooting from the stairs just outside his home. An investigating trooper corroborated Ticket's testimony, testifying that he found spent bullet casings "just left of the stairs" outside of Cleveland's house. And multiple witnesses testified that they observed Wade's body close to the bridge after he was shot.
Although there was no direct testimony regarding the exact distance from the bridge to Cleveland's home, a photograph admitted into evidence shows that the bridge was relatively close to Cleveland's home.
Moreover, Cleveland made an extraordinary number of statements declaring his intent to shoot at people on the night of the incident. Cleveland called 911 twelve separate times over the course of the night, and repeatedly made statements such as, "I got a fucking .22 in my hands and I'm going to shoot anybody I see," "[W]hoever I fucking see, I am going to fucking kill," and "[T]here's going to be a lot of bodies to bury in Selawik." Testimony established that Cleveland called 911 for the first time at around the same time, if not immediately after, shooting Wade. During this first 911 call, Cleveland stated that he did not "give a flying fuck who" he shot, and that he was going to "aim at people and . . . fucking shoot."
In an interview with the troopers following his arrest, when asked whether he remembered shooting Wade, Cleveland responded, "I shoot [sic] at a lot of people." Cleveland also told the police that he saw people crossing the bridge near his house and that he shot at them. And several other witnesses at trial testified that Cleveland told them he was going to shoot them, and that he did, in fact, shoot at them.
Cleveland's girlfriend at the time, Jenny Okpeaha, testified that Cleveland told her that he was going to get bullets from his room and that he "was going to shoot us." Ticket also testified that she heard Cleveland say he was going to get a gun, and that he told her and Wade that they should "get out of his house before he shoot[s] us." Willie Mitchell - who was also at Cleveland's house on the night of the incident - corroborated Ticket's testimony by testifying that Cleveland said he was going to shoot somebody, grabbed his rifle, and started shooting. Mitchell also testified that as he was fleeing Cleveland's house, Cleveland shot toward him.
Thus, there was strong evidence presented that Cleveland had the specific intent to shoot and kill people throughout the night. There was also testimony, in addition to Foster's, to establish where Wade was located in relationship to Cleveland when he was shot, and that Cleveland aimed his rifle at Wade. For these reasons, we conclude that the trial judge's improper comments on Foster's character and performance during his testimony did not deny Cleveland a fair trial.
Cleveland argues that the court's improper comments violated his constitutional right to a fair trial and that the State is required to prove that the error is harmless beyond a reasonable doubt. See Adams v. State, 261 P.3d 758, 773 (Alaska 2011). We need not decide whether the error is constitutional in nature, and thus requires that higher standard of prejudice, or whether the error is not constitutional and therefore is prejudicial only if Cleveland "proves that there is a reasonable probability that [the error] affected the outcome of the proceeding." Id. We conclude that the improper comments were not prejudicial under either standard.
Cleveland's claim that the trial judge erred by failing to disclose to the jury the extent of the judge's conversation with another witness
Cleveland also argues that the court committed plain error in connection with an issue involving another witness at trial. After Brent Norton (the former village police officer in Selawik) testified for the State and the jury had exited the courtroom, Norton asked the judge whether he could receive a sentence reduction in exchange for his testimony. (Norton had been convicted of unrelated crimes and was serving his sentence at the time of his testimony.) The judge told him that the court had no authority to reduce his sentence, but she also told Norton that he could talk to the State about a possible reduction. The parties were present in the courtroom at the time of the judge's interaction with Norton.
The next day, defense counsel informed the court that he was planning to cross-examine Norton about Norton's question regarding a sentence reduction in order to show a possible source of bias to testify favorably for the State. Accordingly, the trial judge informed the jury of Norton's question regarding a sentence reduction:
See, e.g., Evans v. State, 550 P.2d 830, 839 (Alaska 1976) (recognizing that a defendant has "the right to explore those circumstances which might give rise to a [witness's] compulsion to curry special favor with the authorities").
Yesterday, after the jury was excused, Mr. Norton inquired of the Court - made an inquiry of the Court and - for purposes of the testimony here today, the Court has to disclose that to you. He asked if he could get a reduction in sentence or a deal based on his - or because he is testifying. The Court said "no." This Court has no power to just do that sua sponte anyway. I couldn't do anything like that.
The judge did not inform the jury that she had told Norton he could speak with the State regarding this request. Cleveland did not object to the content of the court's advisement to the jury. And, ultimately, Cleveland's attorney did not ask Norton any questions about his sentencing inquiry and any potential impact it had on his testimony.
On appeal, Cleveland argues that the court erred when it failed to inform the jury that it had advised Norton he could talk to the State about the possibility of a sentence reduction in exchange for his testimony. Because Cleveland did not object to the court's disclosure to the jury about this conversation at trial, he must now show plain error.
See Adams, 261 P.3d at 773.
We conclude that the trial judge did not commit plain error in this case for a number of reasons. First, the court properly explained to the jury that Norton had inquired into whether he could receive a reduction in his sentence based on his testimony, and that the court informed him that it did not have the authority to do so. During Norton's direct examination, the State elicited the fact that Norton had already been sentenced in another, unrelated case and that he did not have an agreement with the State that required him to testify in Cleveland's case. Cleveland's attorney declined to ask Norton any questions on cross-examination related to this source of potential bias, despite being unrestricted from doing so.
Second, even if the judge erred by failing to specifically inform the jury that she had told Norton he could ask the State about a potential sentence reduction, any error would be harmless in light of the strength of the State's case. As we have already explained, there were multiple witnesses who testified at trial regarding the events on the night of the shooting. Much of this testimony corroborated the account that Norton provided, and there is no indication that Norton's credibility, or his version of events, was ever particularly called into question during Cleveland's trial. Accordingly, Cleveland has not demonstrated that the trial judge committed plain error.
Cleveland's claim that the judgment contains an error
Finally, Cleveland contends that there is a clerical error in the judgment. In particular, Cleveland notes that the judgment fails to properly account for the fact that the sentencing judge merged three of the third-degree assault verdicts into three other convictions. Specifically, the court merged: (1) Count XI (third-degree assault against Wade Cleveland) into Count I (first-degree murder of Wade Cleveland); (2) Count XIII (third-degree assault against Elvina Pete) into Count V (attempted first-degree murder of Pete); and (3) Count XIV (third-degree assault against Brent Norton) into Count VI (attempted first-degree murder of Norton).
The State concedes that Cleveland's judgment should be corrected to properly reflect the merger of these counts. We have reviewed the record, and while the judgment accurately reflects these merged counts with respect to the sentences imposed, we agree that the judgment must be revised to reflect merger of the convictions themselves. Because the State's concession of error is well-founded, we remand this case to the superior court so that it may amend Cleveland's judgment.
See Nicklie v. State, 402 P.3d 424, 426 (Alaska App. 2017) (explaining that "when a defendant is found guilty of counts that must merge, the merger results in a single conviction of record (and thus a single sentence)").
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess whether a concession of error in a criminal case "is supported by the record on appeal and has legal foundation").
Conclusion
We REMAND this case to the superior court so that the court can amend the judgment in accordance with this opinion. We otherwise AFFIRM the judgment of the superior court.