Opinion
Court of Appeals No. A-11987 No. 6443
03-29-2017
WARREN T. BARCLAY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Myron Angstman, Angstman Law Office, Bethel, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. Trial Court No. 4SM-13-065 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Charles W. Ray Jr., Judge. Appearances: Myron Angstman, Angstman Law Office, Bethel, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Warren T. Barclay appeals his convictions on three counts of assault, all stemming from an incident where Barclay assaulted his girlfriend and then assaulted one of the police officers who responded to the scene.
Barclay raises many claims on appeal. As we explain in this opinion, we conclude that, with one exception, none of Barclay's claims have merit. The one exception (which the State concedes) is that Barclay's convictions for second- and third-degree assault should merge, because these two convictions are based on Barclay's same act of assaulting the police officer. With this exception, we affirm the superior court's judgement.
Underlying facts
Barclay's girlfriend, Jolene Kokrine, called the police to report that she had just had an altercation with Barclay. During this call, Kokrine told Village Police Officer Jeremiah Sheppard that Barclay had been drinking and that he had thrown her onto the bed on her stomach. (Kokrine was pregnant at the time.)
Officer Sheppard and his partner, Village Police Officer Kenneth Hunter, arrived a short time later. They first checked on Kokrine and then, after Kokrine told them that Barclay had headed off into the woods, the officers split up and went searching for Barclay. Sheppard found Barclay first. When Sheppard ordered Barclay to stop, Barclay complied.
Sheppard patted Barclay down for weapons and then, holding one of Barclay's arms behind his back, Sheppard started to walk Barclay back toward his (Sheppard's) vehicle. According to the later testimony, as the two men were making their way toward the vehicle, Barclay suddenly hit Sheppard in the back of the head. Sheppard fell to the ground, and Barclay then jumped on top of him. Barclay pinned Sheppard to the ground, put Sheppard in a headlock, and then thrust his thumb into Sheppard's left eye, trying to gouge it out.
Sheppard fought back and, at some point during this scuffle, Sheppard bit Barclay's finger. Sheppard testified that he had no specific memory of biting Barclay's finger, and that this must have happened while Barclay was attacking him. Barclay, on the other hand, claimed that Sheppard began attacking him first, that Sheppard bit his finger as part of this attack, and that he (Barclay) stuck his thumb into Sheppard's eye as an act of self-defense.
Officer Hunter saw the altercation between Barclay and Sheppard, and he intervened: he pulled Barclay off of Sheppard, and he sprayed him with pepper spray.
Barclay was indicted for second-degree assault for gouging Sheppard's eye, and third-degree assault for recklessly causing injury to Sheppard by hitting him in the back of the head. The State also charged Barclay with fourth-degree assault for the earlier assault on Kokrine.
Barclay's claims that the prosecutor failed to present exculpatory evidence to the grand jury, and that the prosecutor improperly failed to instruct the grand jury on self-defense
Before trial, Barclay moved to dismiss his indictment on the ground that the prosecutor failed to present exculpatory evidence to the grand jury. The superior court denied this motion, ruling that the evidence in question was not "exculpatory" for this purpose. Barclay now renews his argument on appeal.
The State has a duty to present exculpatory evidence to the grand jury. Frink v. State, 597 P.2d 154, 165-66 (Alaska 1979). But this obligation "extends only to evidence that tends, in and of itself, to negate the defendant's guilt." Cathey v. State, 60 P.3d 192, 195 (Alaska App. 2002). A prosecutor is not required "to develop evidence for the defendant [or] present every lead possibly favorable to the defendant." Frink, 597 P.2d at 166. And a prosecutor is not required to present evidence of affirmative defenses to the grand jury unless this evidence would "almost surely" have led the grand jury not to issue an indictment. Grant v. State, 621 P.2d 1338, 1340-41 (Alaska 1981).
On appeal, Barclay points to three pieces of evidence that he claims were so exculpatory that the prosecutor should have presented them to the grand jury. These three pieces of evidence were: a photograph of Barclay's finger showing a bite mark, an audio recording of the encounter between Sheppard and Barclay, and Barclay's own post-arrest statement. However, when Barclay litigated this issue in the superior court, he did not rely on the photograph or the audio recording. He only argued that the indictment should be dismissed because the State failed to apprise the grand jury of the contents of his post-arrest statement. Barclay thus waived his claims regarding the photograph and the audio recording.
See Alaska Criminal Rule 12(b) and (e).
Turning to the contents of Barclay's post-arrest statement, Barclay claims that this statement established that he was acting in self-defense when he stuck his thumb into Officer Sheppard's eye. According to the police report, after Barclay was arrested, he declared that "Sheppard tried to bite his finger off". But given the circumstances (i.e., given Sheppard's testimony that Barclay attacked him and was trying to gouge out Sheppard's eye with his thumb), this was not the type of evidence that "almost surely" would have led the grand jury to refuse to indict Barclay.
We therefore uphold the superior court's decision denying Barclay's exculpatory evidence claim.
For much the same reasons, we reject Barclay's separate claim that the prosecutor who presented his case to the grand jury should have instructed the grand jurors on the law of self-defense.
In Grant v. State, 621 P.2d 1338, 1340-41 (Alaska 1981), the Alaska Supreme Court drew a distinction between cases where the evidence merely showed that an affirmative defense was a potentially "viable and arguable issue", as opposed to cases where the evidence so clearly supported the defense that, if the grand jurors had been instructed on the defense, this "would almost surely have resulted in a failure to indict."
Barclay's case does not fall within this latter category. We accordingly reject Barclay's claim that the prosecutor was required to instruct the grand jury on self-defense.
The evidence presented at Barclay's trial was sufficient to establish that Barclay used his thumb as a "dangerous instrument"
Barclay was convicted of second-degree assault under AS 11.41.210(a)(1) — i.e., under the theory that he caused physical injury to Officer Sheppard by means of a dangerous instrument when he stuck his thumb into Sheppard's eye. On appeal, Barclay contends that the evidence presented at his trial was not legally sufficient to support this conviction. More specifically, Barclay argues that the State's evidence failed to establish that he used his thumb in a manner that made his thumb a "dangerous instrument" within the meaning of AS 11.81.900(b)(15).
According to AS 11.81.900(b)(15), the term "dangerous instrument" includes "anything that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing ... serious physical injury." The term "serious physical injury" is defined in AS 11.81.900(b)(57) as including "[any] physical injury that causes serious and protracted disfigurement, protracted impairment of health, [or] protracted loss or impairment of the function of a body member or organ."
The loss of an eye qualifies as a "serious physical injury" under AS 11.81.-900(b)(57). Thus, if Barclay used his thumb, or attempted to use his thumb, in a manner that rendered it capable of gouging out Sheppard's eye, Barclay's thumb would qualify as a "dangerous instrument" under AS 11.81.900(b)(15).
As this Court has explained, the question of whether something is capable of causing serious physical injury is not answered retrospectively (i.e., not answered by looking at the results of the defendant's actions). Rather, it is answered prospectively, by "examining the consequences that were reasonably likely to ensue from the defendant's actions, given the type of object that the defendant used, and given the manner and circumstances in which the object was used." Olson v. State, 264 P.3d 600, 604 (Alaska App. 2011).
In Barclay's case, when the evidence and the reasonable inferences to be drawn from the evidence are viewed in the light most favorable to the jury's verdict, the evidence was clearly sufficient to warrant reasonable jurors in concluding that the State had met its burden of proving that Barclay used his thumb in a manner that made it a "dangerous instrument". We therefore reject Barclay's contention that the evidence was insufficient to support his conviction for second-degree assault.
See Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
The evidence presented at Barclay's trial was sufficient to support the jury's conclusion that the State disproved Barclay's claim of self-defense beyond a reasonable doubt
As we have already noted, Barclay defended the assault charges involving Officer Sheppard by asserting that he acted in self-defense. Under AS 11.81.900(b)(19), once some evidence was introduced to support Barclay's assertion of self-defense, it was the State's burden to disprove Barclay's assertion beyond a reasonable doubt.
On appeal, Barclay argues that, given the evidence presented at his trial, no reasonable jury could have concluded that the State had rebutted his claim of self-defense beyond a reasonable doubt. But, again, we must view the evidence in the light most favorable to the jury's verdict — and, viewing the evidence in that light, we conclude that reasonable jurors could have concluded that the State had disproved Barclay's claim of self-defense.
The evidence presented at Barclay's trial was sufficient to support the conclusion that Barclay placed Jolene Kokrine in fear of imminent physical injury
Barclay was convicted of fourth-degree assault under AS 11.41.230(a)(3) — i.e., under the theory that he placed his girlfriend, Jolene Kokrine, in fear of imminent physical injury. Barclay notes that the State was required to prove, not just that a reasonable person in Kokrine's situation might have reasonably feared imminent physical injury, but that Kokrine herself actually apprehended a danger of imminent physical injury. Barclay argues that the evidence presented at his trial was insufficient to establish that his actions actually caused Kokrine to fear imminent injury.
As this Court explained in Hughes v. State, 56 P.3d 1088, 1090 (Alaska App. 2002), when the assault statutes require proof that a person was placed in "fear" that a particular result was about to occur (for example, physical injury), the State need not prove that the victim experienced "fear" in the sense of fright, but only that the victim reasonably perceived a threat that the specified result was about to occur.
Kokrine did not testify at Barclay's trial, but the State introduced the recording of Kokrine's 911 call to the police. As the prosecutor noted in summation to the jury, Kokrine sounded scared and distraught during this 911 call, and she seemed to be crying. Based on Kokrine's statements during this call, Kokrine knew that Barclay had consumed a significant quantity of alcohol — about a gallon of homebrew. She stated that Barclay was "being ugly" toward her, and that Barclay had taken her cell phone, thus preventing her from immediately calling for help. Kokrine also stated that she was pregnant, and that Barclay had thrown her face-down on the bed, and had put his hand over her mouth.
Viewing this evidence in the light most favorable to the jury's verdict, reasonable jurors could have concluded that the State had proved that Barclay's actions caused Kokrine to apprehend a danger of imminent physical injury. We therefore conclude that the evidence was sufficient to support Barclay's conviction for fourth-degree assault.
Why we conclude that the trial judge did not commit plain error when the judge allowed the State to introduce the recording of Kokrine's 911 call
As we mentioned in the preceding section of this opinion, the State introduced an audio recording of Jolene Kokrine's 911 call at Barclay's trial. Barclay's trial attorney made no objection to the playing of the 911 call. But on appeal, Barclay argues that the admission of this 911 call constituted plain error — that it violated his rights under the confrontation clauses of the United States and Alaska constitutions.
We reject this claim of plain error on several grounds.
First, the confrontation clause only applies to out-of-court statements that are "testimonial". In Davis v. Washington, the United States Supreme Court held that a person's statements to a 911 operator are not "testimonial" if the circumstances indicate that the primary purpose of the 911 operator's questions was to enable the police "to meet an ongoing emergency" rather than "to establish or prove past events potentially relevant to later criminal prosecution". Davis, 547 U.S. at 822, 126 S.Ct. at 2273-74.
See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
In Barclay's case, Kokrine called 911 to report that she had just been assaulted by Barclay. Many of the questions which the police officer asked Kokrine during the 911 call were an attempt to ascertain how badly Kokrine was hurt, and whether Barclay still posed a danger to Kokrine or to others. For example, after Kokrine told the police officer that Barclay had been drinking, that he had assaulted her, and that he had taken her mobile phone, the police officer asked Kokrine to describe the nature of her injuries, and whether her unborn child had also been hurt. The officer also asked Kokrine whether there were any weapons in the house, and whether anyone else was there, and how much alcohol Barclay had consumed.
On this record, the trial judge had good reason to think that Kokrine's answers to these questions were "non-testimonial" statements under the Davis test. Indeed, this is how Barclay's trial attorney viewed Kokrine's statements too. Which brings us to our next point: Barclay's argument on appeal seems to be foreclosed by the doctrine of invited error.
Barclay's attorney did not simply fail to object to the playing of the 911 recording at trial. Rather, the defense attorney repeatedly assured the trial judge that Kokrine's statements during the 911 call were "non-testimonial" under Davis v. Washington — and that, for this reason, there was no confrontation problem.
On appeal, Barclay reverses course and argues that Kokrine's statements were barred by the confrontation clause. Given the way Barclay's trial attorney dealt with this issue, it would appear that Barclay's argument is foreclosed.
But even if we were to allow Barclay's appellate attorney to take a position on appeal that is directly contrary to the position that Barclay's trial attorney took in the superior court, we would still conclude that Barclay had waived this point of error — because Barclay's current claim suffers from the defect of inadequate briefing.
Barclay's opening brief asserts that the introduction of Kokrine's statements during the 911 call violated the confrontation clause, but his brief contains no meaningful analysis of this issue. In fact, Barclay's opening brief does not even mention the United States Supreme Court's decision in Davis v. Washington, or the landmark decision that Davis interpreted, Crawford v. Washington.
In his reply brief, Barclay for the first time discusses the Supreme Court's decision in Davis, and he argues — in complete contradiction to the defense position at trial — that Kokrine's statements during the 911 call were "testimonial" under Davis. But we do not allow litigants to raise a cursory and obviously deficient argument in their opening brief, and then offer the substance of their argument for the first time in their reply brief. See our discussion of this point in Berezyuk v. State, 282 P.3d 386, 398-99 (Alaska App. 2012). We therefore conclude that Barclay's confrontation clause argument is waived because of inadequate briefing.
Barclay's convictions for second- and third-degree assault upon Officer Sheppard must merge
Barclay argues that his two convictions for assaulting Officer Sheppard must merge because the two convictions are merely different theories of how the same assaultive conduct violated the law. The State concedes that Barclay is correct — but this Court has an independent duty to evaluate any concession of error by the government in a criminal case.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
Here, we agree with the parties that the two assault convictions must merge. Barclay's conviction for third-degree assault (Count VII) was based on the fact that Barclay hit Sheppard on the back of the head and knocked him to the ground. Barclay's conviction for second-degree assault (Count I) was based on the struggle that immediately ensued, during which Barclay used his thumb to try to gouge out Sheppard's eye.
In the superior court, the prosecutor stipulated that these two counts should merge, but the court nevertheless entered two separate convictions — although the court declined to impose sentence on the third-degree assault conviction. This was error. Our cases declare that when counts must be merged under the double jeopardy clause, the merger not only precludes the court from imposing separate sentences, but also from entering separate convictions. The proper course for the sentencing court is to enter one merged conviction (for the higher offense, if there is one) based on the jury's two verdicts.
See Hunter v.State, 182 P.3d 1146, 1154 (Alaska App. 2008); Hurd v. State,107 P.3d 314, 322 (Alaska App. 2005).
We accordingly accept the State's concession of error that these two convictions must merge.
Conclusion
The jury verdicts finding Barclay guilty of second- and third-degree assault must be merged into a single conviction for second-degree assault. With that exception, the judgement of the superior court is AFFIRMED.