Opinion
Court of Appeals No. A-10656 Trial Court No. 1KE-09-726 CR No. 5815
03-14-2012
LEWIS L. ARMEY JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, for the Appellant. Nicholas A. Polasky, Assistant District Attorney, Ketchikan, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the District Court, First Judicial District, Ketchikan, Kevin G. Miller, Judge.
Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, for the Appellant. Nicholas A. Polasky, Assistant District Attorney, Ketchikan, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
Lewis L. Armey Jr. was convicted of third-degree theft, unlawful operation of shrimp gear, and failure to register a powerboat after he pulled several shrimp pots and a buoy out of the waters near Ketchikan and put the gear on his boat. Armey argues that the district court should have instructed the jury on his theory of the case — that he did not have the culpable mental states required to convict him of theft and unlawful operation of shrimp gear because he believed the shrimp pots had been abandoned. We conclude that the court's instructions adequately conveyed the State's burden to prove that Armey had the culpable mental states required to commit these offenses, and that a more particularized instruction on Armey's theory of the case was not required.
Armey also argues that the court committed plain error by not reprimanding the prosecutor for calling him a "jerk" during rebuttal argument. Armey has not shown that the prosecutor's use of this term in passing in the course of otherwise legitimate argument undermined the fundamental fairness of his trial. We therefore find no plain error, and affirm Armey's convictions.
Facts and proceedings
On March 15, 2009, Glen Michael Mood went to check his shrimp pots and found that they had disappeared. When he returned to the marina in Knudson Cove, he saw his pots on the deck of another person's boat. He called the state troopers.
Trooper Clyde Campbell met Mood at the boat and allowed him to retrieve his gear. Campbell then left a business card on the boat. The next day, Campbell got a telephone call from the boat's owner, Lewis Armey. Armey was eventually charged with third-degree theft, unlawful operation of shrimp gear, and failure to register a powerboat.
AS 11.46.140(a)(1).
AS 05.25.055(a).
At trial, Armey argued that he reasonably believed the shrimp pots had been abandoned. He also testified that he left the shrimp pots in plain view on his boat so the owner could claim them. The jury rejected these defenses and convicted Armey of third-degree theft and unlawful operation of shrimp gear. District Court Judge Kevin G. Miller convicted Armey of failure to register a powerboat, a violation. Armey appeals his misdemeanor convictions.
AS 05.25.090(b)(2).
Why we reject Armey's claim that the court should have instructed the jury on his theory that he reasonably believed the pots had been abandoned
During discussion of jury instructions, both Armey and the State offered instructions on Armey's theory that he was not guilty of theft or tampering with shrimp gear because he reasonably believed the shrimp pots had been abandoned. Judge Miller decided not to give either instruction, concluding that an instruction was unnecessary and would confuse the jury. The judge explained that if the jury was persuaded by the evidence that Armey reasonably believed the shrimp pots had been abandoned, the jury could not find "the necessary mens rea element."
Armey argues that the court erred by not giving an instruction on his theory of the case. He concedes that the instruction he offered was "inartful," and that the first sentence — which required the State to prove that Armey "knew or should have known that the property ... was not abandoned" — suggested that the State was required to prove an element beyond those required by statute. But he argues that, even if his proposed instruction misstated the law, the court had a duty to provide some instruction to support his defense.
The decision whether to give a particularized instruction in support of the defendant's theory of the case is "committed to the sound discretion of the trial court." As long as the court's instructions adequately set forth the applicable law, "a more elaborate explanation of the defendant's theory of the case will be required only when it would substantially aid the jury in arriving at a just verdict."
Lee v. State, 760 P.2d 1039, 1041 (Alaska App. 1988).
Id.; see also Wortham v. State, 689 P.2d 1133, 1143 (Alaska App. 1984) ("We do not believe that the trial court should be required to draft up or approve a unique instruction tailor-made for each case which encompasses the defendant's theory unless the unique instruction will substantially aid the jury in arriving at a just verdict.").
The Alaska Supreme Court held in Howard v. State, a case involving the theft of scrap copper, that the trial court was not required to instruct the jury on the defendant's claim that he believed the copper had been abandoned. In Howard, the defendant asked the court to instruct the jury that it must find that he lacked the specific intent to commit larceny if it found that he subjectively believed the copper had been abandoned. The supreme court held that the trial court did not abuse its discretion by refusing to give this instruction. The court concluded that the subject of intent was adequately covered by the instruction informing the jury that a necessary element of larceny was the specific intent to deprive the owner of property.
583 P.2d 827, 834 (Alaska 1978).
Id.
Id.
We reached the same conclusion in Hettinger v. State, an unpublished case. In Hettinger, the defendant was convicted of third-degree theft for stealing snowboards. Relying on Howard, we found no error in the trial court's refusal to instruct the jury on the defendant's claim that he reasonably believed the snowboards had been abandoned. In reaching this conclusion, we noted that the jury had been instructed that intent to deprive another of property was a necessary element of third-degree theft, and that the defendant had been allowed to fully litigate his theory at trial.
Mem. Op. & J. No. 4357, 2001 WL 219856 (Alaska App. 2001).
Id. at *1.
Id. at *2-3.
Similarly in this case, the jury was instructed that, to convict Armey of third-degree theft, the State had to prove beyond a reasonable doubt that he "intended to deprive another of property or to appropriate the property of another to himself." The jury was also instructed that, to convict Armey of unlawful operation of shrimp gear, the State had to prove that he "knew or should have known that he was tampering with or retrieving another person's shellfish pot gear without prior permission of the owner of that pot gear." The court's instructions thus made clear that the jury could not find that Armey had the required culpable mental states to commit these offenses if it found that he reasonably believed the shrimp pots did not belong to anyone.
Moreover, the court allowed Armey to fully litigate his theory of the case. Armey's attorney told the jury that both offenses required proof that the property was "somebody else's property." He also asserted that if Armey reasonably believed the pots had been abandoned, the State had not proven the culpable mental states for either offense. And he emphasized that the burden was on the State to prove that Armey knew the property belonged to someone else. In rebuttal, the State disputed Armey's evidence that he reasonably believed the pots had been abandoned. But the State agreed with Armey that the "key of the case is ... whether or not it's property of another."
Because the court's instructions adequately conveyed the State's burden to prove that Armey had the mens rea required to commit the charged offenses, and because Armey was allowed to fully litigate his defense, we conclude that Judge Miller did not abuse his discretion by declining to give the jury a separate instruction on Armey's theory of the case.
Why we conclude the trial court did not commit plain error by not admonishing the prosecutor for calling Armey a jerk during rebuttal argument
Armey next argues that the court should have admonished the prosecutor for improperly commenting on his character by calling him a "jerk" during rebuttal argument. He concedes that his claim must be reviewed for plain error because he did not object to the prosecutor's remark at trial.
When a defendant argues as a matter of plain error that the prosecutor's statements during closing argument amounted to prosecutorial misconduct, this court considers "whether the prosecutor's statements, if in error, constituted such egregious conduct as to 'undermine the fundamental fairness of the trial.'"
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985) (citation omitted), superseded by statute on other grounds as stated in Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996).
In closing argument, Armey's attorney asserted that Armey took the shrimp pots because he believed it was the right thing to do, not because he was stealing:
He's passionate about this stuff. He really believes he needs to help protect the environment, so that's why he did it. ... He wasn't doing this [to] steal anything. He wasn't doing this to fool with somebody's pots. That was the direct evidence.The State challenged this version of the evidence in its rebuttal argument:
[T]he defense talked about how he's passionate. ... He believes strongly in all these things. No, that's not the case. Mr. Armey is not passionate about this. He's just — I'll be blunt — a jerk who doesn't think the law applies to him. That's what Mr. Armey does, and it's being sold as passion. It's not passion. It's just a person who thinks he can get away with this kind of stuff.
It seems beyond dispute that this would be proper argument if the prosecutor had said Armey was "someone who doesn't think the law applies to him." With that wording, the prosecutor would simply be inviting the jury to draw a different inference from the evidence about Armey's motive than the inference suggested by Armey's attorney. The question is whether the prosecutor undermined the fundamental fairness of Armey's trial by instead using the pejorative term "jerk."
We have previously adopted the United States Supreme Court's analysis of the dangers presented when a prosecutor expresses personal opinion in argument:
The prosecutor's vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.
Noel v. State, 754 P.2d 280, 283 (Alaska App. 1988) (citing United States v. Young, 470 U.S. 1, 18-19 (1985)).
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Neither of these dangers was present in this case. Nothing in the prosecutor's closing argument suggested that he based his statement that Armey was a "jerk" on evidence that was not before the jury. Furthermore, the context of the prosecutor's statement—the fact that it expressly rebutted the defense attorney's argument that Armey was motivated by his passion — made clear that the prosecutor was offering the jurors a different interpretation of the evidence rather than inviting them to adopt his personal opinion of Armey's character. In addition, the jurors were explicitly instructed that the arguments of counsel are not evidence, and they were told to ignore arguments of counsel that departed from the facts or the law. Although we agree that it was inappropriate for the prosecutor to call Armey a jerk, we do not believe Judge Miller committed plain error by failing to admonish the prosecutor in the absence of any objection by Armey's attorney.
Conclusion
We AFFIRM Armey's convictions.