Opinion
A-13607 7106
05-15-2024
THE ESTATE OF DAVID CHRISTOPHER NORDLUND, Appellant, v. STATE OF ALASKA, Appellee.
Nathan M.F. Charles (briefing), Attorney at Law, Potomac, Maryland, for David Christopher Nordlund (deceased); Renee McFarland, Assistant Public Defender, and Terrance Haas, Public Defender, Anchorage, for the Appellant (Estate). Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
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, although it may be cited for whatever persuasive value it may have. See McCoy v. State, 80 P.3d 757, 764 (Alaska App. 2002).
Appeal from the Superior Court, Third Judicial District, Anchorage, Andrew Peterson, Judge. Trial Court No. 3AN-19-04232 CR
Nathan M.F. Charles (briefing), Attorney at Law, Potomac, Maryland, for David Christopher Nordlund (deceased); Renee McFarland, Assistant Public Defender, and Terrance Haas, Public Defender, Anchorage, for the Appellant (Estate). Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
ALLARD JUDGE.
David Christopher Nordlund was convicted, following a jury trial, of third-degree criminal mischief for breaking multiple windows at an Anchorage hotel, causing more than $750 in damage. Nordlund appeals his conviction, raising three claims.
During the appellate proceedings, Nordlund passed away. His estate, through a personal representative, was substituted as the appellant. See State v. Carlin, 249 P.3d 752 (Alaska 2011) (holding that if a criminal defendant dies after filing an appeal, the defendant's estate may elect to continue the appeal).
See AS 11.46.482(a)(1).
First, Nordlund argues that the State committed a Brady violation when it allegedly failed to produce evidence that his attorney had requested. For the reasons explained here, we conclude that the current record does not support reversal of Nordlund's conviction on this ground.
Second, Nordlund argues that the trial court violated his state and federal constitutional speedy trial rights. But the record shows that Nordlund went to trial 147 days after his arrest, a time period that both federal and state constitutional law recognize as presumptively not prejudicial, and Nordlund has not otherwise established prejudice. Accordingly, we find no merit to this claim.
Third, Nordlund argues that the trial court violated his right to due process when it allegedly "forced" Nordlund to choose between "either declaring his readiness for trial or waiving his right to speedy trial before the State produced discovery requested by defense counsel." Because the current record does not support the claim that Nordlund was forced to choose between these two rights, we reject this claim.
Factual background
On April 29, 2019, at around 4:30 a.m., an employee of the Travel Inn in Anchorage called 911 to report that a man was on the property smashing windows. The man was later identified as Nordlund. The owner of the Travel Inn testified at trial that Nordlund broke eleven windows, which cost $5,500 to replace.
Nordlund was arrested and charged with third-degree criminal mischief. Under AS 11.46.482(a)(1), "A person commits the crime of criminal mischief in the third degree if, having no right to do so, or any reasonable ground to believe the person has such a right, . . . with intent to damage the property of another, the person damages property of another in an amount of $750 or more[.]"
At trial, Nordlund's defense was that he was panicked and terrified that night because people were trying to harm him and the police were not responding to his 911 calls. According to Nordlund, when he was unable to get assistance from the Travel Inn desk clerk, he did what he could - screaming and banging on the hotel's windows and doors - to try to get people's attention so that the police would be called and he could be safe.
Nordlund testified to this version of events at trial. According to Nordlund's testimony, he began the night at the residence of a woman that he met through an acquaintance. The woman told him he could stay, but he became scared because the woman's boyfriend started to "accost" him. Nordlund testified that the boyfriend left and then returned, and Nordlund overheard him arguing with his girlfriend about how "they had thought that [Nordlund] was somebody or did something in the past." According to Nordlund's testimony, the boyfriend then left again "to go get some other friends, three or four other guys to do [Nordlund] harm." Nordlund called 911 and left the line open, hoping that the police would be able to track his phone. Nordlund then jumped out of the window and ran to the Travel Inn where a friend of his worked as a desk clerk.
However, a different desk clerk was on duty that night. Nordlund testified that he was "turned away from using the telephone and getting help at the front desk." Nordlund then knocked on his friend's door, but when no one answered, he began "banging on the doors, banging on the windows, screaming for help" and screaming for someone to "call 911" because "[s]omeone is trying to hurt [him]." Nordlund also testified that he was screaming "fire" to get attention because he believed that he was "still in danger."
According to Nordlund, the police officers who showed up did not identify themselves as police officers, and Nordlund initially ran from them because he did not realize they were police officers. Nordlund was subsequently arrested and sustained injuries during the arrest. Nordlund testified that he was injured when the police "tased [him] in the face" and he "fell two stories."
Nordlund's testimony at trial did not make clear whether all the injuries he had sustained the night of April 29, 2019, resulted from his interaction with the police or whether some of the injuries resulted from interaction with "the people trying to hurt [him] that night." The complaint filed by the police states that Nordlund "was given a taser warning [when] he jumped off the second story balcony. [Nordlund] was then tased after hitting the ground and was taken into custody. With the injuries he sustained from the fall, he was taken to the hospital[.]"
Nordlund further testified that he intended on taking "full responsibility" for the damage that he caused and he had tried to address the matter civilly. He testified that he was in fear for his life that night. He told the jury:
I had to save my life. Did I feel I had a right to break any windows? No. But I had a right to live. I had a right to save my life. I had a right to get help from 911. I had a right to have someone come to my rescue to save me from being killed.
On cross-examination, Nordlund testified that he did not know the name of the boyfriend who he alleged was trying to hurt him and that "nobody goes by their real name." He also testified that the people trying to harm him chased him to the Travel Inn (even though the desk clerk's testimony suggests that no one other than Nordlund had arrived at the Travel Inn that night).
According to Nordlund, he did not intend to break the windows, he was just trying to get attention. As he told the jury: "I do not find it necessary or intentional that I broke any of the windows there. I did find it necessary to get the attention of all the occupants available in the apartment complex or that hotel to have their eyes on me and to be calling 911." Nordlund also questioned whether he was responsible for all the broken windows because there was only surveillance footage of him breaking one window.
In closing argument, the defense attorney relied on Nordlund's testimony to argue that the State had failed to prove beyond a reasonable doubt that Nordlund had no "reasonable ground" for his actions and the defense attorney argued that the State had also failed to prove that Nordlund "intended" to cause damage that night. The defense attorney pointed to facts that corroborated Nordlund's account of that night - namely, the multiple 911 calls Nordlund had made, even though none of the calls lasted very long or provided any information.
The prosecutor argued in closing that the State had proved beyond a reasonable doubt that Nordlund had intentionally damaged the windows without any reasonable ground for believing that he had the right to do so. The prosecutor also emphasized that Nordlund himself admitted that he had "no right" to break the windows and that his actions were "intentional."
Following deliberations, the jury convicted Nordlund of third-degree criminal mischief. Because it was Nordlund's third felony offense, he faced a presumptive sentencing range of 2 to 5 years for this conviction. At sentencing, the court imposed a sentence of 4 years with 2 years suspended (2 years to serve), as well as restitution in the amount of $5,500.
Former AS 12.55.125(e)(3) (2018).
This appeal followed.
Nordlund's claim that the State violated Brady v. Maryland when it allegedly failed to produce discovery that the defense attorney had requested and the trial court had ordered
Prior to trial, Nordlund's attorney asked the State to produce police reports and audio recordings related to an interaction between Nordlund and the police on April 17, 2019 - twelve days before the incident that gave rise to the criminal mischief charge. The defense attorney explained that these materials were relevant to Nordlund's necessity defense - i.e., to Nordlund's claim that his actions were an attempt to get people to call the police so that he could be protected from the people who were trying to harm him. According to the defense attorney's email to the prosecutor,
We note that, although "necessity" is usually an affirmative defense that the defendant must prove by a preponderance of the evidence, this is not the case in a criminal mischief case in which the State must prove beyond a reasonable doubt that the defendant had no right and no reasonable ground to believe that they had the right to damage the property of another. See McGee v. State, 162 P.3d 1251, 1260-61 (Alaska 2007).
Mr. Nordlund was arrested on 4/17 not far from the Travel Inn. An officer arresting him loudly talked about his prior [sexual abuse of a minor] conviction while others were within earshot. It was these people who he thought were trying to kill him on 4/29 and was telling officers and staff at the motel about.
The prosecutor refused to produce the requested police reports and recordings without an order from the trial court compelling their discovery.
Nordlund's attorney therefore filed an expedited motion to compel under Alaska Criminal Rule 16, requesting an order compelling the State to produce the requested reports and recordings from April 17, 2019. The motion argued that the materials were "mandatory discovery under Rule 16" because they were related to Nordlund's necessity defense. The motion explained the relevancy of these materials as follows:
On April 29, the day of the charged incident, Mr. Nordlund believed he was being pursued by people who had witnessed
or overheard an interaction he had had with police on April 17 in which officers loudly spoke of Mr. Nordlund's prior criminal history. Awareness of the nature of his prior conviction led these others to seek to harm him. His actions on April 29 were done out of necessity to attract attention of law enforcement for his own protection from these people. The police record, and recordings of their interactions with Mr. Nordlund on April 17, are critical evidence of why a mob of people was coming after him on April 29, which necessitated him taking the actions for which he is charged.
The trial court granted the motion to compel, giving the State two days to produce the requested materials.
On September 20, the trial court held a pretrial status hearing. Nordlund's attorney told the court that he had originally requested the hearing "because of an outstanding discovery issue that's since been complied with." The following exchange then took place:
Court: You've gotten what you'd requested though?
Defense Attorney: I got it. It was the calls that Mr. Nordlund - for the Court's information because we had talked about it - the calls Mr. Nordlund made to 911 on the date of the offense. It does bother me that I got it two days ago when the Court had ordered it disclosed over two weeks before. I don't know why it would take so long but -
Court: Well, I'm not sure why but fortunately you have it.
On appeal, the State asserts that the above exchange demonstrates that Nordlund's attorney received the April 17 documents that the court had ordered produced. But, as Nordlund points out, the exchange only refers to the 911 calls from April 29; it does not mention the April 17 documents.
The record indicates that Nordlund's attorney may have entirely abandoned the request for the April 17 police records at an August 29, 2019, status hearing. At this hearing, Nordlund's attorney informed the court that he had amended his request and was now seeking police records from April 29 instead of police records from April 17.
In his pleadings before this Court, Nordlund has consistently maintained that the April 17 discovery was never produced. He has also requested a remand to the superior court so that his trial attorney can testify under oath that he never received this court-ordered discovery, and the trial court can again order the State to produce this discovery. We conclude that such a remand is unnecessary because we can simply assume, for purposes of this appeal, that the State did not produce the April 17 discovery.
However, even assuming arguendo that the State did not produce the April 17 documents, Nordlund's purported "Brady claim" has a separate problem - his attorney never informed the trial court that he had not received the April 17 documents, or requested that the court take any further action. In other words, there is nothing in the record to suggest that the trial court was ever aware that the discovery request was still outstanding and the trial court therefore cannot be faulted for failing to take further action.
Ultimately, only one of two conclusions can be drawn from this record. Either the defense attorney received the April 17 documents (as the State asserts) and the defense attorney made a strategic decision not to use them, or the defense attorney never received the April 17 documents (as Nordlund asserts) but the defense attorney made a strategic decision not to pursue them. In either case, Nordlund must challenge the attorney's strategic decision that the documents were not actually necessary for the defense. Such a challenge would require supplementing the record with evidence regarding the attorney's decision making and therefore can only be raised, under Alaska law, in an application for post-conviction relief.
See Burton v. State, 180 P.3d 964, 968-69 (Alaska App. 2008) (citing Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984) (explaining that ineffective assistance of counsel claims must "ordinarily be litigated in post-conviction relief proceedings rather than raised as claims of plain error on direct appeal" because "the record of the trial proceedings will seldom conclusively establish incompetent representation")); see also AS 12.72.010(9); Alaska R. Crim. P. 35.1.
Lastly, we note that Nordlund's appellate attorney repeatedly refers to the April 17 documents as "Brady material." Brady requires the State to provide a defendant with evidence that is "material either to guilt or punishment." Evidence is "material" under a Brady analysis "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."
Brady v. Maryland, 373 U.S. 83, 87 (1963).
United States v. Bagley, 473 U.S. 667, 682 (1985); see also Stacy v. State, 500 P.3d 1023, 1034 (Alaska App. 2021).
Here, it is not clear that the documents would qualify as Brady material or that their absence prejudiced Nordlund's defense. Nordlund's defense attorney argued a necessity defense at trial - that is, he argued that Nordlund broke the windows because he was (allegedly) being attacked and needed help from the police. Nordlund supported this defense with his own testimony, but the necessity defense was undermined by the fact that no other witnesses saw anyone attacking or pursuing Nordlund at the Travel Inn that night. The April 17 documents would not address this central problem in Nordlund's defense. The most that they could do was to provide the alleged reason for why Nordlund was being attacked - i.e., they could potentially establish that the people attacking Nordlund had overheard the police saying a few weeks earlier that Nordlund was a registered sex offender. But the defense attorney never elicited any evidence of Nordlund's sex offender status, seemingly eliminating the relevancy of the April 17 police encounter.
On appeal, Nordlund's appellate attorney argues that the defense attorney's decision not to inform the jury of Nordlund's sex offender status was itself the result of not having received the April 17 documents. But there is no reason to believe that is true. Nordlund could have testified to his status as a registered sex offender and to the interaction with the police on April 17 even without the April 17 discovery. The defense attorney therefore appears to have made a strategic decision to forgo informing the jury of Nordlund's sex offender status - a decision that was facially reasonable and that would explain why the defense attorney did not use the April 17 documents at trial (if he received them) or why the defense attorney did not object to having not received them (if the State did not produce this discovery).
See Alaska R. Evid. 602 (stating that a witness who has personal knowledge of a matter may testify as to the matter).
Accordingly, we conclude that the current record does not support Nordlund's claim that the State violated its Brady obligations and that Nordlund was thereby prejudiced such that his conviction should be reversed.
Nordlund's argument that his constitutional speedy trial rights were violated
A defendant in a criminal matter has a constitutional right to a speedy trial under the federal and state constitutions. A defendant also has a statutory right under Alaska Criminal Rule 45 to a trial within 120 days, subject to various exceptions.
U.S. Const. amend. VI; Alaska Const. art. I, § 11.
In the trial court proceedings, Nordlund attempted to raise various pro se arguments regarding his Rule 45 rights. On appeal, Nordlund concedes that Rule 45 was not violated in his case. Instead, he now argues that his federal and state constitutional right to a speedy trial was violated.
We find no merit to this claim. The record shows that Nordlund went to trial 147 days after his arrest. That is, he went to trial within five months of being arrested. This is too short a time period to trigger any presumption of prejudice under either the federal or state speedy trial jurisprudence, and Nordlund has not made any showing of actual prejudice.
See State v. Wright, 404 P.3d 166, 178 (Alaska 2017) (holding that a constitutional speedy trial claim requires a threshold showing that the period of pretrial delay was long enough to be "presumptively prejudicial" (citing Barker v. Wingo, 407 U.S. 514, 530 (1972))); see also State v. Mouser, 806 P.2d 330, 340 (Alaska App. 1991) (observing that unexplained delays of fourteen months or more are considered presumptively prejudicial); United States v. Patterson, 140 F.3d 767, 772 (8th Cir. 1998) (finding that an approximately five-month period between detention and trial "was not sufficiently long to be presumptively prejudicial").
We accordingly reject this claim.
Nordlund's argument that he was "forced" to choose between his right to discovery and his right to a speedy trial
Nordlund argues that the trial court forced him to choose between his right to discovery and his right to a speedy trial. Nordlund also attacks an order issued by the presiding judge of the Third Judicial District that he argues unfairly makes defendants choose between their speedy trial rights and their right to discovery. But, as just explained, Nordlund went to trial within 147 days of his arrest, and within the limitations set by Rule 45. Moreover, as also explained, Nordlund's defense attorney never claimed that he was missing discovery when the case went to trial and the record is silent as to whether discovery was complete. In any event, there is no suggestion in the record currently before us that any failure by the State to produce discovery was related to Nordlund's assertion of his speedy trial rights. Accordingly, we reject this claim of error.
Conclusion
The judgment of the superior court is AFFIRMED.