Opinion
Court of Appeals No. A-9870.
December 24, 2008.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge, Trial Court No. 3KN-03-00555 CR.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Kenneth M . Rosen stein, Assistant Attorney G eneral, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Barry J. McCormack Sr. was convicted by a jury of murder in the first degree for intentionally killing Opal Fairchild. The State's theory was that McCormack intentionally killed Fairchild during the course of a robbery. On appeal, McCormack contends that Superior Court Judge Charles T. Huguelet erred in allowing the prosecution to introduce evidence of two other robberies that McCormack allegedly committed to prove that McCormack was the person who killed Fairchild and that he intended to kill her. McCormack contends that Judge Huguelet erred by admitting this evidence without making a threshold finding that he committed the prior robberies. He also argues that Judge Huguelet should have excluded this evidence because it was unfairly prejudicial. We conclude that the court did not err in admitting this evidence.
AS 11.41.100(a)(1)(A). McCormack was also found guilty of second-degree murder under AS 11.41.110(a)(3), but this conviction merged with the first-degree murder conviction.
McCormack raises two additional claims. First, he argues that Judge Huguelet erred by not granting him a continuance after the State provided late notice of several witnesses. But McCormack did not ask Judge Huguelet for a continuance, so he did not preserve this issue for appeal. Second, McCormack argues that his Sixth Amendment right to jury trial was violated because Judge Huguelet, rather than the jury, found that he was a "worst offender". We have previously held that a defendant's Sixth Amendment right to jury trial is not violated when a worst offender finding is made by a judge not a jury. For these reasons, we affirm McCormack's conviction and sentence.
Factual and procedural background
On March 20, 1985, Opal Fairchild's body was discovered in her home. An autopsy revealed that Fairchild died from a gunshot wound to the head. The police recovered a bullet jacket from her bedroom floor, which was later identified as being in the .38 caliber class, which includes both .38 Special and .357 Magnum ammunition. Latent fingerprints were found on a newspaper on the bedroom floor and on a page of phone numbers and addresses found among the contents of Fairchild's purse that had been emptied onto the dining room table.
During the initial investigation in 1985, the authorities were unable to identify the latent fingerprints. The investigation evolved into a cold case. But in 2000, the latent fingerprints were resubmitted to the crime lab for identification. Both of these prints matched McCormack's fingerprint exemplar on record.
The police started contacting members of McCormack's family. Ultimately, McCormack's brother-in-law, Daniel VinZant, told the police that several years previously McCormack said he had killed Opal Fairchild and that he and Thomas VinZant, Daniel VinZant's brother, had committed a robbery at Safeway. The police then questioned Thomas VinZant, who eventually admitted that he and McCormack committed the Safeway robbery. According to Thomas VinZant's testimony at trial, McCormack asked him to help him rob a Safeway store where Thomas VinZant had previously worked. He stated that McCormack's initial plan was to go into the Safeway store when the employees were counting money and to shoot the employees if necessary. Thomas VinZant alternatively described McCormack as planning to shoot the employees so that there would not be any witnesses. According to Thomas VinZant, he ultimately agreed to help McCormack after McCormack agreed to Thomas VinZant's alternate plan, which was to take the money from the store manager in the Safeway parking lot, and to not kill anyone. The robbery took place on March 29, 1985. The robbers beat the store manager and took approximately $10,000.
The State charged McCormack with both first-and second-degree murder for the killing of Opal Fairchild. Before trial, the State gave notice of its intent to present evidence of McCormack's other robberies. At a pretrial hearing, the State argued that all the robberies, including the one in which Opal Fairchild was killed, occurred during a short period of time when McCormack was facing serious financial difficulties. The State argued that the evidence showed that McCormack had gone on a crime spree to solve these financial difficulties. Judge Huguelet ultimately allowed the State to present evidence of two of those robberies.
The first robbery, a robbery of Peninsula Woodstoves, took place on March 8, 1985. The owner of the business, Anderson, was shot in the head and initially survived his wound. A fragment of a bullet jacket removed from Anderson's head came from .38 caliber-class ammunition. McCormack's fingerprint was found on the underside of the cash register drawer.
The second robbery was the Safeway robbery, which took place on March 29, 1985. The murder of Opal Fairchild took place on or about March 20, 1985.
Judge Huguelet concluded that the evidence that McCormack had committed these two other robberies was admissible. He noted that all the robberies, including the robbery of Opal Fairchild, had occurred during a three-week period in 1985. He concluded that the robberies were admissible to show McCormack's identity as the person who killed Opal Fairchild, as well as his motive and intent in entering Fairchild's home and shooting her. He also found that the evidence tended to show that all the robberies were part of the same general scheme over a few weeks to obtain money and to eliminate witnesses to the crimes.
The jury convicted McCormack of murder in the first and second degree. Judge Huguelet merged these two convictions. He sentenced McCormick to 99 years of imprisonment and restricted his eligibility for discretionary parole. McCormack appeals.
Why we conclude that Judge Huguelet did not err in allowing the State to present evidence of McCormack's other robberies
Alaska Rule of Evidence 404(b)(1) prohibits the admission of a defendant's other bad acts if the sole purpose for offering the evidence is to prove the defendant's propensity to commit criminal acts. But the rule allows the State to introduce evidence of the defendant's bad acts for other purposes, such as the defendant's "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In other words, "evidence of a [defendan t]'s prior misconduct is inadmissible unless it is probative of some disputed fact other than the [defendant]'s general propensity to engage in similar misconduct."
Jordan v. State, 895 P.2d 994, 999 (Alaska App. 1995).
Even if evidence is admissible under Rule 404(b), Evidence Rule 403 directs a trial court judge to exclude relevant evidence "if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
McCormack asserts that Judge Huguelet erred in failing to make a threshold determination that McCormack actually committed the other robberies alleged by the State. McCormack argues that, before the State is allowed to present evidence of a defendant's other acts, a trial judge should be required to make a finding, by clear and convincing evidence, that the defendant committed the other acts. He cites several cases in support of that position.
See, e.g., State v. Prion, 52 P.3d 189, 195 (Ariz. 2002) (en banc) ("For other act evidence to be admissible, it must be shown by the clear and convincing standard that the act was committed and that the defendant committed it." (citation omitted)); Capano v. State, 781 A.2d 556, 635 (Del. 2001) (defendant's prior bad acts must be proved by clear and convincing evidence); McLean v. State, 934 So. 2d 1248, 1262 (Fla. 2006) (same); Ayala v. State, 923 A.2d 952, 958 (Md.Spec.App. 2007) (same); State v. Ross, 732 N.W.2d 274, 283 (Minn. 2007) (same).
McCormack acknowledges that he never asked Judge Huguelet to make such a finding. But he argues that we should construe his trial counsel's assertion that there was very little evidence tying McCormack to the Peninsula Woodstoves robbery as preserving this objection. We disagree with this assertion. The rule of law that McCormack now proposes was never brought to Judge Huguelet's attention. Therefore, McCormack must show plain error.
See Alaska R. Crim. P. 47(b); Garroutte v. State, 508 P.2d 1190, 1191 (Alaska 1973); Adams v. State, 27 P.2d 751, 756 (Alaska App. 1996).
The law is divided on the question of whether a trial judge must separately find, before admitting evidence of a defendant's other bad acts, that the defendant actually committed the bad acts. The cases on this issue are collected in Ayagarak v. State, an unpublished decision. Because reasonable judges could differ on this point, McCormack has not shown plain error.
Alaska App. Memorandum Opinion and Judgment No. 4695 at 11 nn. 22-24 (Apr. 23, 2003), 2003 WL 1922623 at *5 nn. 22-24.
See id. at 8, 2003 WL 1922623 at *4 ("We are not convinced by the authority Ayagarak cites that we should impose a requirement of clear and convincing evidence before relevant prior bad acts are admitted."); see also Lockuk v. State, 153 P.3d 1012, 1016 (Alaska App. 2007) ("when reasonable judges could differ as to what the law requires, there is no plain error").
We agree, however, with McCormack's contention that admission of the evidence that he committed two other robberies carried a high danger of unfair prejudice. And we agree that the State should not have been allowed to introduce evidence of these other robberies unless the probative value of this evidence outweighed the danger of unfair prejudice. To overcome the potentially highly prejudicial effect of this evidence, Judge Huguelet had to find that there was substantial evidence McCormack committed the robberies, and that the evidence that McCormack committed the robberies was necessary to establish important disputed facts in this case
We conclude that the State met this standard. The evidence that McCormack committed the other robberies was strong. Opal Fairchild's body was found on March 20, 1985. During the same time period, on March 8, 1985, Mel Anderson, the owner of Peninsula Woodstoves, was also robbed. The robber shot Anderson in the head. Anderson was shot with a .38 caliber-class weapon. McCormack's fingerprint was found on the underside of the cash register drawer. The State presented a firearms expert who testified that the bullet that killed Opal Fairchild came from the same weapon that shot Mel Anderson. (Another expert testified that although he had a "gut feeling" that the two bullets came from the same gun, "from a scientific standpoint, [he couldn't rule] out the possibility that a second gun was used to fire the other bullet.")
The main evidence that McCormack committed the Safeway robbery was the testimony of McCormack's alleged accomplice, his brother-in-law Thomas VinZant. This allegation was supported by Daniel VinZant's testimony that McCormack admitted his participation in the Safeway robbery.
The evidence that McCormack committed the Peninsula Woodstoves and Safeway robberies was therefore strong. In the Peninsula Woodstoves robbery, not only was McCormack's fingerprint found on the underside of the cash register drawer, which certainly suggested that he was involved in the robbery, but there was also testimony that the same gun was used in the Peninsula Woodstoves robbery as was used in the robbery and murder of Opal Fairchild. In addition, the robber shot both Opal Fairchild and Mel Anderson in the head. This evidence ties in with Thomas VanZint's testimony that McCormack's original plan for the Safeway robbery was to eliminate all the witnesses.
The evidence of the two robberies was strongly probative of important disputed facts. Although the evidence that McCormack's fingerprints were present on a newspaper and on an address book that had been taken from Opal Fairchild's purse was certainly evidence that McCormack had robbed and killed her, the State had the burden of proving this beyond a reasonable doubt. This fingerprint identification, even if accurate, only established that McCormack had touched the newspaper and the address book. He could have touched these items well before or after Fairchild was killed. To establish murder in the first or second degree under a felony murder theory, the State had to show not only that McCormack killed Fairchild, but that he intended to kill her, or that he killed her during the course of the robbery. The evidence that McCormack committed the other robberies, and the evidence of the manner in which he committed them, tended to show important facts that were disputed at trial: that McCormack was the person who robbed Fairchild and that he intended to kill her to eliminate her as a possible witness. We accordingly conclude that Judge Huguelet did not abuse his discretion in admitting this evidence. Judge Huguelet did not err in failing to grant McCormack a continuance
McCormack also contends that Judge Huguelet erred in refusing to grant him a continuance because McCormack received late notice of some of the witnesses the State intended to call. Two of the witnesses were correctional officers with the Department of Corrections. Their testimony was necessary to establish that McCormack's 2003 fingerprint exemplar was actually of a print known to have been provided by McCormack. Another witness was an expert who compared McCormack's 1991 and 2003 fingerprint exemplars. She concluded that the prints were made by the same person, which established the authenticity of the 1991 exemplar. Another witness was a doctor who performed the surgery to remove bullet fragments from Mel Anderson's head following the Peninsula Woodstoves robbery. The purpose of this testimony was to show that the bullet fragments had been taken from Anderson.
McCormack objected to the above evidence on the grounds that he received late notice of the witnesses and that the testimony would be cumulative. Judge Huguelet found that the evidence was admissible. He observed that the State should have provided discovery at an earlier time, but he concluded that a mistrial would not be appropriate. He also stated that he did not see that a continuance would be helpful or necessary.
The problem with McCormack's argument that Judge Huguelet erred in refusing to grant a continuance is that McCormack's attorney never asked for one. At oral argument in this case, McCormack's appellate attorney contended that, given what Judge Huguelet stated in denying the motion for a mistrial, moving for a continuance would have been futile. But we will not make that assumption from this record. Judge Huguelet's comment about the continuance appears to be just that: a comment rather than a ruling. If McCormack's trial attorney wanted a continuance, she needed to ask for one. On this record, we have no idea whether McCormack's attorney truly wanted a continuance, what the purpose of a continuance might have been, or how McCormack might have been prejudiced if the court had denied a continuance. Under these circumstances, we conclude that this issue was not preserved for appeal. Judge Huguelet did not err in finding that McCormack was a "worst offender"
See Marino v. State, 934 P.2d 1321, 1327 (Alaska App. 1997) (holding that defendant could not raise issue on appeal because he "chose to proceed without seeking a ruling on his . . . motion").
As previously explained, Judge Huguelet imposed a maximum sentence of 99 years of imprisonment without the possibility of discretionary parole. In imposing a maximum sentence, Judge Huguelet found that McCormack was a "worst offender". In general, to impose a maximum sentence a sentencing judge must find that the defendant was a "worst offender". McCormack, relying on Blakely v. Washington, and Cunningham v. California, argues that the decision whether he was a worst offender could not be decided by the judge but had to be submitted to the jury. But we previously rejected this contention in Baker v. State. We adhere to that decision.
Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971).
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007).
182 P.3d 655, 658-59 (Alaska App. 2008) ("We hold now that a defendant is not entitled to a jury trial on the issue of whether he or she is a worst offender.").
The judgment of the superior court is AFFIRMED.