Opinion
Court of Appeals No. A-10970 Trial Court No. 4FA-09-4847 CR No. 6054
05-07-2014
DUSTIN SHAWN REED, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Joe P. Josephson, Anchorage, for the Appellant. Terisia Chleborad, 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, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge.
Appearances: Joe P. Josephson, Anchorage, for the Appellant. Terisia Chleborad, 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 Hanley, District Court Judge.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge MANNHEIMER.
Dustin Shawn Reed was found guilty of committing several criminal offenses against his ex-girlfriend, K.B.. These offenses were: stalking, burglary, theft, criminal mischief, assault, and violation of a protective order.
In this appeal, Reed argues that the trial judge committed error by allowing the State to introduce evidence that, some four years before, a domestic violence protective order (involving K.B.) had been entered against Reed. This claim is meritless: in fact, the State was not allowed to apprise the jury of the earlier protective order.
The State was, however, allowed to introduce evidence of Reed's assault on K.B. that led to this earlier protective order. We therefore will construe Reed's argument as a challenge to the trial court's decision to admit this evidence. And, for the reasons explained here, we conclude that the trial court did not abuse its discretion when it allowed the State to introduce this evidence.
Reed also claims that the fairness of his trial was fatally prejudiced by a combination of events. According to Reed, this cumulative prejudice arose because (1) twice during the trial, the prosecutor referred to K.B. as a "victim"; (2) K.B. repeatedly "embellished" her testimony by giving answers that went beyond simple, direct answers to the prosecutor's questions; and (3) the State was allowed to introduce evidence of a telephone call that Reed made to K.B. five days after their primary confrontation; in this phone call, Reed initially identified himself with a false name, and then he made more threats against K.B..
For the reasons explained here, we conclude that, to the extent any of this actually constituted error, it does not require reversal of Reed's convictions.
Underlying facts
Reed and K.B. were involved in a long-term relationship, and they had two children together. This relationship was not always smooth. In 2005, while K.B. was still a minor, Reed assaulted her. This prompted K.B.'s guardian to go to court and obtain a domestic violence protective order against Reed (apparently, against K.B.'s wishes). Reed was later convicted of violating that protective order, but he and K.B. continued their relationship.
Reed and K.B. finally broke up in the fall of 2009. On November 30, 2009 (shortly after the break-up), K.B. left her car running in front of her apartment complex while she went inside to pick up her two children from her babysitter's nearby apartment. K.B. left her backpack, her purse, and her laptop computer in her car. When she returned to the car with her children, K.B. noticed that her keys and computer were gone. She then saw Reed coming out of her apartment.
Reed came jogging toward K.B., and he asked her, "How could you do this to me?" As he spoke, Reed pulled K.B.'s mobile phone out of his pocket and pointed to text messages between K.B. and her new boyfriend. Reed then informed K.B. that he had taken her computer, and that he had entered her apartment and broken her television.
K.B. saw her key chain hanging from Reed's pocket, so she reached for it. Reed moved to prevent K.B. from grabbing the keys, and he scratched K.B.'s hand in the process. When K.B. warned Reed that she was going to call the police, Reed left.
Later that evening, Reed made fifty-five telephone calls to K.B. over the course of six hours (from 7:00 in the evening until 1:00 in the morning). K.B. returned some of these calls in order to ask Reed where her stolen belongings were, and K.B. recorded Reed's side of these telephone conversations.
During these phone calls, Reed told K.B. that he had destroyed her computer. He also warned K.B. that even if she went to court to get a protective order, that protective order would not be "bulletproof", and it would not stop him "from coming anywhere near" her.
The next day (i.e., on December 1, 2009), K.B. went to court and obtained a protective order against Reed. Five days later, on December 6th, Reed violated that protective order by calling K.B. again and threatening her.
On December 18th, a grand jury indicted Reed for first-degree burglary (burglary of a residence), second-degree theft, third-degree criminal mischief, and third-degree assault. The district attorney also filed an information adding three misdemeanor counts: fourth-degree assault, violation of the December 1st protective order, and second-degree stalking. With respect to this stalking charge, the State went back to the grand jury in mid-February and obtained an indictment on the greater charge of first-degree stalking (because Reed had previously been convicted in 2005 of violating a domestic violence protective order).
AS 11.41.260(a)(5).
The trial court's ruling and the ensuing evidence concerning Reed's 2005 threat to kill K.B.
Just before Reed's trial, the prosecutor asked the court for permission to introduce Reed's 2005 conviction for violating the domestic violence protective order. The prosecutor argued that Reed's conviction for this offense showed that Reed had "a propensity to commit acts of ... violence against [K.B.]", and also showed the reasonableness of K.B.'s fear of Reed.
From the text of the prosecutor's motion, it is clear that the prosecutor's main purpose was not to prove that Reed was convicted of violating a protective order in 2005, but rather to prove Reed's underlying conduct of assaulting K.B. in 2005. Offered for this purpose, Reed's judgement of conviction was not admissible. See Jones v. State, 215 P.3d 1091, 1099 (Alaska App. 2009), where we explained that "evidence of a criminal conviction is inadmissible hearsay under Alaska law if it is offered to prove that the defendant actually engaged in the conduct that would justify that conviction".
Quoting Douglas v. State, 166 P.3d 61, 85 (Alaska App. 2007).
However, the prosecutor could properly introduce evidence of the 2005 assault through K.B.'s testimony — which, as we are about to explain, is ultimately what happened.
When this motion was argued in court, the prosecutor noted that the fact of Reed's 2005 conviction was admissible in any event, because that prior conviction was a necessary element of the State's case regarding the stalking charge — because Reed was charged with first-degree stalking under AS 11.41.260(a)(5) (i.e., stalking committed by a person who had previously been convicted of violating a protective order). This prompted Reed to ask the superior court to bifurcate his trial on the stalking charge. Reed proposed having the jury decide whether he committed stalking during the current episode, and then (if the jury found Reed guilty) having the trial judge decide whether he had been convicted of violating the 2005 protective order. The court granted Reed's request for a bifurcated trial on this charge.
After more discussion, the trial judge denied the State's request to introduce Reed's 2005 judgement of conviction. The prosecutor then asked the judge to let the State introduce evidence that Reed had threatened to kill K.B. in 2005.
The trial judge correctly perceived the distinction between (1) evidence that Reed had been convicted of violating a protective order in 2005 and (2) evidence that Reed had assaulted K.B. in 2005 by threatening to kill her — and the judge ruled that evidence of the 2005 assault could be introduced through the testimony of K.B.:
The Court: [Based on] Evidence Rule 404(b)(1) and (4), and then finally Evidence Rule 403, I am going to allow [K.B.] to testify [about] prior crimes of domestic violence that she has experienced at the hand of Mr. Reed. ... Those are ... relevant. And, using the balancing [test] under Bingaman [v. State], [I conclude that the evidence is] incredibly probative and it is not unfair for ... [K.B.'s]Following this ruling, Reed's attorney asked the court for permission to introduce rebutting testimony to bring out certain mitigating or ameliorating circumstances surrounding Reed's 2005 threat to kill K.B.. The trial court gave Reed permission to introduce this evidence.
experience as a victim, over time, to be presented as context for this one.
At trial, after K.B. described the events of November - December 2009, the prosecutor asked K.B. a single question about the events of 2005: whether Reed had threatened to kill her in 2005. K.B. answered "yes", and that was the end of the prosecutor's direct examination.
Reed's attorney began his cross-examination of K.B. by immediately asking her about the circumstances of Reed's 2005 threat. After the defense attorney asked several questions on this subject, the prosecutor objected on relevance grounds, but the trial judge overruled the prosecutor's objection — declaring that, because the prosecutor had "opened the door" to this topic, Reed's attorney should be allowed to "flesh out this 2005 threat". Reed's counsel then asked K.B. about Reed's hitting her with a telephone:
Defense Attorney: [Reed] had ... a cordless phone in his hand, correct?
. . .
K.B.: No. ... He took the phone out of my hand.
. . .
Defense Counsel: [T]hat same incident, [when] he was angry about his car being repossessed, did you suffer an injury to your lip?
K.B.: Yes, I did — to my lip and my face.
Defense Counsel: And this happened — the physical mechanism by which this happened — was that you were struck by a phone?
K.B.: Correct.
. . .
Defense Counsel: And that is the incident [when] you say he threatened to kill you ... , is that correct?
K.B.: I said I don't recall if [it was] that incident or the incident that followed that [one].
On redirect, the prosecutor returned to the events of 2005 — in particular, the incident where Reed hit K.B. with the telephone. In response to the prosecutor's questions, K.B. explained that Reed was "belligerently drunk" at the time, and he was upset about his car getting repossessed. K.B. told him that she was going to call the police if he did not calm down — at which point Reed "got pissed off and grabbed the phone and hit [her] with it," leaving her with a bruise and a bleeding lip.
On appeal, Reed argues that the trial judge committed procedural error when the judge ruled on the admissibility of this evidence. Specifically, Reed argues that the trial judge failed to conduct the kind of extensive analysis of probative value versus potential for unfair prejudice that this Court described in Bingaman v. State, 76 P.3d 398, 415-16 (Alaska App. 2003).
We reject Reed's argument for two reasons.
First, the trial judge admitted the evidence of Reed's earlier threat to kill K.B. under both Evidence Rule 404(b)(1) and Evidence Rule 404(b)(4). The Bingaman analysis is designed to ensure that character evidence admitted under Evidence Rule 404(b)(4) is truly relevant and sufficiently probative in comparison to its potential for unfair prejudice, given the facts of the individual case. But the Bingaman analysis does not apply to evidence admitted under Evidence Rule 404(b)(1) — because Evidence Rule 404(b)(1) expressly requires the proponent of the evidence to identify a valid non-character purpose for admitting the evidence. See Bingaman, 76 P.3d at 411.
Because Reed does not challenge the trial judge's ruling that the evidence of Reed's 2005 threat to kill K.B. was admissible under Rule 404(b)(1), it is a moot issue whether the trial judge conducted a proper analysis of the character aspects of this evidence under Bingaman. See Kenison v. State, 107 P.3d 335, 344 (Alaska App. 2005).
Second, even if a Bingaman analysis was required, we find that Bingaman was satisfied. The record shows that the trial judge explicitly weighed the probative value of the evidence against its potential for unfair prejudice.
It is true that the judge did not explicitly ask all the questions, or mention all the factors, that this Court spoke about in Bingaman. But the answer to most of these questions was obvious in Reed's case. The challenged evidence involved the same victim, K.B., and it involved the same type of conduct that Reed was charged with committing in late 2009: threatening to kill K.B., and physically assaulting her. The relevance of this evidence was plain — both to prove that Reed had again threatened K.B.'s life in 2009, and to prove that K.B. had good reason to take this threat seriously.
For all of these reasons, we uphold the trial judge's decision.
The prosecutor's references to K.B. as the "victim"
Once during the prosecutor's opening statement, and at two places during his summation to the jury at the end of the trial, the prosecutor referred to K.B. as the "victim". Reed's attorney did not object to these references at the time, but on appeal Reed contends that the prosecutor's use of this term prejudiced the fairness of his trial.
We have examined the portions of the record that Reed complains of. Viewing the prosecutor's remarks in context, there is no indication that the prosecutor was attempting to stir up the jury's sympathy for K.B., or that he was inviting the jury to decide the case without holding the State to its full burden of proof. Rather, it appears that the prosecutor was using the term "victim" as the equivalent of "complainant" — just as he repeatedly referred to Reed as the "defendant". Moreover, it could hardly have been a surprise to the jurors that the prosecutor thought the evidence established Reed's guilt.
We conclude that the prosecutor's references to K.B. as a "victim" do not constitute plain error.
Reed's claim that the prosecutor improperly introduced evidence of Reed's pre-trial plea of no contest to Count VII
As we explained earlier in this opinion, following K.B.'s encounter with Reed in the parking lot, and after Reed then made fifty-five telephone calls to K.B. over the course of six hours on the night of November 30 - December 1, 2009, K.B. went to court on December 1, 2009 and obtained a protective order against Reed.
Five days later, on December 6th, Reed violated that protective order by calling K.B. again and threatening her. He was separately charged with this crime in Count VII.
Just before his trial began, Reed pleaded no contest to this count. Thus, the jury was not asked to decide whether Reed's conduct on December 6th violated the December 1st protective order.
In his brief to this Court, Reed contends that the trial judge acted improperly by allowing the State to introduce evidence of Reed's no contest plea to Count VII during Reed's ensuing trial on the remaining charges.
But in the portion of the transcript that Reed refers to in his brief, the trial judge did not rule that the State could introduce evidence of Reed's no contest plea to Count VII. Rather, the trial judge ruled that the State could introduce evidence of Reed's conduct on December 6th (presumably, through the testimony of K.B.) because that conduct was relevant to some of the remaining charges — specifically, the stalking charge. (We also note that, because of the recency of K.B.'s breakup with Reed, and because of Reed's ongoing emotional entanglement with K.B., Reed's conduct on December 6th was seemingly relevant to the issue of Reed's state of mind a few days earlier, on November 30th - December 1st.)
We have diligently searched the transcript of Reed's trial for all later references to the word "plea", the word "judgment", and the phrase "no contest". The record contains no suggestion that the prosecutor ever introduced evidence of Reed's no contest plea to Count VII.
We therefore conclude that Reed's claim has no merit.
K.B.'s "embellishments" in her answers to two of the prosecutor's questions during direct examination
Reed argues that the fairness of his trial was prejudiced because, in two instances, K.B. purportedly gave narrative and non-responsive answers to questions posed by the prosecutor during direct examination.
The first instance that Reed complains of occurred when the prosecutor was asking K.B. about the laptop computer that Reed stole from K.B.'s car:
Prosecutor: How did you come to own this laptop?
K.B.: ... [Reed] purchased the laptop and gave it to me. He purchased it ... for me [to use at] school.
Prosecutor: Okay. And ... did he say anything when he gave it to you, about his intentions?
K.B.: Well, ... before that, I had a laptop that was broken when we had broken up ...
Defense Attorney: Objection, Your Honor. Can we be heard outside the presence of the jury?
Outside the presence of the jury, Reed's attorney objected that K.B.'s answer was not responsive to the prosecutor's question, and that it looked like K.B. was about to assert that Reed was at fault for breaking the previous computer. In response to the defense attorney's concerns, the trial judge cautioned K.B. to "pay particular attention to exactly the question [posed to her]", and to "answer only that [question], without explaining".
But then (still outside the presence of the jury), the prosecutor explained that he did intend to have K.B. testify that Reed was at fault in breaking the previous computer — which is why Reed was motivated to buy K.B. a new one.
The prosecutor did, however, agree with the trial judge that K.B.'s testimony on this issue was not intended to imply that "there was anything vicious or cruel or mean in the breaking" — only that Reed was responsible for the damage, so he replaced the computer.
In other words, the record shows that the defense attorney was wrong when he objected that K.B.'s answer had been non-responsive to the prosecutor's question. K.B. was, in fact, giving the answer that the prosecutor expected.
The bench conference then ended, and K.B. resumed the stand in the jury's presence. Without objection, the prosecutor elicited K.B.'s testimony that Reed purchased the laptop as a replacement for an earlier laptop which broke "when it was under [Reed's] care."
For these reasons, we reject Reed's contention on appeal that K.B. answered the prosecutor's question with a non-responsive "embellishment".
The second instance that Reed complains of occurred a little later in the prosecutor's direct examination of K.B.. The prosecutor was asking K.B. a series of questions designed to explain to the jury that Reed still had a key to K.B.'s apartment even though they had broken up. The prosecutor then asked K.B. if there came a time when she asked Reed to give this key back to her:
Prosecutor: And at some point, did you ask for the key back from the defendant?
K.B.: I did.
Prosecutor: Why did you ask for the key back?
K.B.: I asked for the key back because he would show up at my house when I was at work, and go there without my knowledge, go there without my permission. And towards the end, when I really was adamant about getting it back, like asking him every day, hey, you need to give my key back, because he was coming into my house at, you know, all hours of the night when I have two children there, drunk, being very, you know, verbally abusive, physically abusive, stuff like that.
Prosecutor: Okay. So were ...
Defense Counsel: Your Honor, could we have a hearing outside the presence of the jury, shortly?
Here, K.B. clearly was giving a narrative answer that exceeded the scope of the information called for in the prosecutor's question. And in the ensuing bench conference, the defense attorney properly complained that K.B. was "running on" in her answer, and that she was "making claims of physical abuse without [the State's having made] a 404(b) application". Having made this objection, the defense attorney then asked for a mistrial — but he offered no further explanation of why a mistrial was required.
In response, the prosecutor apologized for the challenged testimony. He told the judge that he thought K.B. "would say something else" in response to his question. However, the prosecutor pointed out that the jury was going to hear testimony that Reed had threatened to kill K.B. — and that, in context, K.B.'s brief mention of physical abuse was not the kind of error that required a mistrial.
The trial judge decided that K.B.'s answer did not require a mistrial, but when the bench conference ended, the judge admonished the jurors "to disregard that portion of the answer that [K.B.] gave a few moments ago ... about Mr. Reed coming [over] intoxicated or doing anything else."
On appeal, Reed asserts that this admonition was not adequate to cure the prejudice of K.B.'s answer. But the decision as to whether a particular occurrence requires a mistrial is entrusted to the trial judge's discretion, and we can reverse the judge's decision only if we are convinced that the judge acted unreasonably and abused that discretion.
See, e.g., Hewitt v. State, 188 P.3d 697, 699 (Alaska App. 2008).
--------
Given the nature of the State's case against Reed, and given the evidentiary record as a whole, we find that the trial judge could reasonably conclude that K.B.'s brief mention of unspecified physical abuse did not require a mistrial. We therefore uphold the judge's ruling on Reed's request for a mistrial.
Reed's claim of cumulative error
Reed argues that even if no single one of the errors raised in his brief caused sufficient prejudice to warrant reversal of his convictions by itself, the cumulative impact of all these purported errors was so damaging that Reed should receive a new trial.
But as we explained in State v. Savo, 108 P.3d 903 (Alaska App. 2005), "the doctrine of cumulative error is really a doctrine of cumulative prejudice. It applies only when real errors have been identified and the remaining question is whether these errors, in combination, were so prejudicial as to undermine the trustworthiness of the underlying judgement (even though each error, taken individually, might not require reversal)." Id. at 916.
As we have explained in the preceding sections of this opinion, Reed has failed to demonstrate that the trial judge committed any error. When, as in Reed's case, all of an appellant's allegations of error are shown to be unfounded, there is no "cumulative error". Ibid.
Conclusion
The judgement of the superior court is AFFIRMED.