Opinion
Court of Appeals No. A-8941.
July 26, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Richard D. Savell, Judge. Trial Court No. 4FA-03-4324 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan G. Steiner, Public Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Kelly S. Frank was convicted, following a jury trial, of assault in the third degree and misconduct involving weapons in the third degree (felon in possession of a concealable firearm). On appeal, he argues that Superior Court Judge Richard D. Savell erred in refusing to dismiss the entire jury pool after a juror made a potentially inflammatory comment; in admitting into evidence photographs that purported to show a re-enactment of the crime; and in failing to give a jury instruction on "fleeting possession" of the firearm. He also argues that the evidence presented by the State was insufficient to support his conviction for assault in the third degree. We conclude that Judge Savell erred in admitting into evidence the photographs that purported to show a re-enactment of the crime. We accordingly reverse Frank's conviction for assault in the third degree. But we affirm his conviction for misconduct involving weapons in the third degree.
AS 11.41.220(a)(1)(A).
AS 11.61.200(a)(1).
A summary of the evidence presented at Frank's trial
Frank and the State stipulated that Frank had been previously convicted of a felony and was therefore prohibited from possessing a concealable firearm. Christine Sam, a resident of Northway, testified that on November 18, 2003, she had been working in her office, which was located approximately fifty feet from Herman Demit's residence. At around 3:00 p.m. she heard three gunshots come from the direction of Demit's residence. Romania John, another Northway resident, testified that a little after 3:00 p.m. on November 18, Keith Albert entered her office and called the state troopers. Albert appeared extremely intoxicated when he made the telephone call.
Keith Albert testified that Frank was a very close friend of his. On November 18, Albert and Frank had been drinking together early in the day and met at Demit's residence that afternoon; by this time, they were both highly intoxicated. The two drank together with Demit for some time, sitting at a table. At some point, Frank took out a gun and showed it to Albert; he told Albert "something like, `you know what this .44 can do'." Albert was looking out the window when the gun went off. This startled Albert, and he was scared, although he did not think that Frank would shoot him. Frank then went outside, leaving the gun. Albert emptied the remaining bullets from the gun.
Herman Demit testified that Frank and Albert were in his residence on the afternoon of November 18; both were intoxicated before they arrived. Demit did not see Frank carry anything into the house, but he heard a gun go off and then saw Frank put the gun on a table. Demit heard Frank say that he "[could] make anybody dance if [he] wanted to." Frank later picked up the gun, put it in a jacket pocket, and left. Demit saw Frank leave by snow machine.
Lily Albert, a Northway resident, testified that Frank came to her house during the afternoon of November 18 and left a gun on her front porch; he told her that someone would pick it up later.
One of the investigating officers, Alaska State Trooper Charles Miller, testified that he went to Lily Albert's residence because he had received information that Frank had left a pistol there. Lily Albert gave one of the troopers the gun. The troopers interviewed Keith Albert, who appeared "shaken," "upset," and "afraid." Albert accompanied the troopers to Demit's residence to show them what had happened. It appeared to Trooper Miller that both Albert and Demit had been drinking. Trooper Miller found the location of the bullet fired by Frank, which had struck the ceiling; Trooper Nasruk Nay took some pictures of the scene.
Trooper Nay testified that he went to Northway with Trooper Miller to investigate the incident. He retrieved the gun from Lily Albert. It had one spent cartridge inside it. Trooper Nay interviewed Albert, who appeared intoxicated, "shaken up," and afraid; Albert told him that he had been "scared shitless." Trooper Nay described how he and Trooper Miller went to Demit's house. They interviewed Demit and Albert. Trooper Nay took photographs in which Trooper Miller (acting as Frank) and Albert reenacted the incident where the gun discharged. Troopers Nay and Miller then went to Frank's house and saw Frank in the window; however, when they reached the house, Frank was not inside, and fresh tracks led from the back of the house into the woods.
Frank's counsel called Steve Frank (Frank's father), who testified that he owned a Smith and Wesson pistol (the same type used in the incident), that he kept in a backpack on his snow machine.
Kelly Frank (the defendant) testified that on the morning of November 18, he and Albert were drinking at his father's residence. Frank later followed Albert to Demit's residence on his father's snow machine. They continued drinking. At some point, Frank went outside and noticed a bag hanging on the snow machine. He noticed that the bag was heavy and discovered that it contained a handgun. Frank saw a couple of other people outside drinking, so he took the handgun into Demit's residence to prevent anyone from getting hurt. When he got inside he pulled the handgun out and it "just discharged." He claimed he had not pointed the gun at anybody and did not make any threatening statements. Frank "got scared," left the gun on the table, and went outside. He then went back inside and took the handgun because Albert and Demit had also been drinking. He did not think it would be safe to leave the handgun with them. He then took the snow machine to Lily Albert's residence and left the handgun there.
Frank therefore defended on the ground that he had originally taken the handgun into Demit's residence to keep it from getting stolen and misused and that he had taken the handgun from Demit's residence because Albert and Demit were intoxicated and he did not believe that it was safe to leave the gun at Demit's residence. He conceded that the gun had gone off and frightened Albert and Demit. But he argued that the gun had discharged accidentally and that he had not acted recklessly. The jury convicted Frank on both charges. Frank now appeals.
Why we conclude that Judge Savell did not abuse his discretion in refusing to dismiss the jury panel
At the beginning of jury selection, Judge Savell asked the prospective jurors if they recognized the names of any witnesses. During this discussion, juror Ted Potter told the judge that two years before, he had been threatened and assaulted by a person who looked "an awful lot" like Frank. He stated that the assailant had never been caught. Judge Savell immediately told the rest of the jurors, "All right, now I don't want anyone in here to assume that was Mr. Frank." He then questioned Potter about his ability to serve as a juror. Potter stated that he would not be able to put this knowledge aside.
Frank's counsel asked Judge Savell to dismiss the entire jury pool because of Potter's comment. Judge Savell pointed out that he had immediately cautioned the jury and declined to dismiss the jury panel. Judge Savell excused Potter. He later addressed the jury panel, cautioning them to disregard Potter's comment. (Judge Savell also excused Potter's wife, who was in the same jury pool.)
Frank argues that Judge Savell erred in refusing to dismiss the jury panel. But we are to reverse a trial judge's denial of a request to discharge a panel of prospective jurors only if the judge has abused his discretion. Judge Savell was present when Potter made the remark and, therefore, in a much better position than we are to evaluate the risk that Potter's remark would prejudice the jury panel. We note that Potter did not say that Frank was the person who had assaulted him. Rather, Potter stated that the person who had threatened and assaulted him looked "an awful lot" like Frank. Under the circumstances, Judge Savell could properly conclude that the other prospective jurors would not have difficulty in excluding Potter's comments. In addition, Judge Savell immediately gave the jury a cautionary instruction, telling them to disregard Potter's comment. We generally presume that jurors will follow instructions that the trial judge gives them. We conclude that Judge Savell did not abuse his discretion in refusing to dismiss the entire panel of prospective jurors.
See Nelson v. State, 68 P.3d 402, 405-06 (Alaska App. 2003).
Whiteaker v. State, 808 P.2d 270, 277 (Alaska App. 1991) (citations omitted).
We conclude that Judge Savell erred in allowing the State to introduce photographs in which the troopers and Albert reenacted the incident where the handgun discharged
At Frank's trial, the State introduced into evidence photographs that purported to represent a re-enactment of the incident in which the handgun discharged. The photographs show Keith Albert seated on the arm of a couch looking out a window. According to Trooper Miller's testimony, one of the photos shows the trooper "sitting in a chair where Keith Albert had advised that Frank had been sitting." According to Trooper Miller, the photograph shows "a picture of Keith Albert where he said he was sitting at the time of the incident."
Trooper Nay later testified that he took the photographs in Demit's house. According to Trooper Nay the pictures depict Trooper Miller acting in the role of Frank and show Keith Albert sitting where Albert had been sitting when the shooting took place. Trooper Nay testified that it was a re-enactment that was based upon statements that Albert and Demit made to the troopers in which they described where Albert was sitting, where Frank was sitting, and how Frank was holding the firearm. Trooper Nay testified that the photographs depicted Frank "pointing the gun past Keith Albert's head[.]" In the photograph, Trooper Miller has his arm outstretched, as though he was holding a handgun and pointing the gun just over Albert's head. (Trooper Miller appears to be pointing his hand, as though holding a handgun, toward the place where the troopers found the bullet that was discharged in the incident.)
Frank's attorney objected to the admission of the photographs. He argued that the troopers had not laid an adequate foundation to admit the photographs and that the re-enactment was based upon out-of-court statements from witnesses and therefore rested entirely on hearsay. Judge Savell overruled Frank's objection and admitted the photographs into evidence.
Judge Savell erred in admitting the photographs. According to the troopers' testimony, the re-enactment shown in the photographs was based upon statements from Keith Albert and Demit. But the troopers never explained what those statements were. And although Demit and Albert testified at trial, neither witness was shown the photographs or was asked to confirm that photographs were accurate re-enactments or depictions of what he observed.
According to Demit's testimony at trial, he did not see Frank fire the handgun. He heard the gun discharge and then saw the gun on a table. According to Keith Albert's testimony at trial, he saw Frank bring out a gun when Frank sat down. Albert said the gun went off when he (Albert) was looking out the window. It appears from Albert's testimony that Albert did not see what Frank was doing when the handgun discharged. Therefore, the State never established an adequate foundation for admitting the photographs, and the re-enactment appears to have been based upon inadmissible hearsay statements or speculation.
The State argues that admission of the photographs, if error, was harmless. It is true that the State did not argue to the jury that the photographs showed how Albert committed the assault. And it is possible that the jurors, having heard Albert's and Demit's testimony, would conclude that neither man saw Frank actually fire the handgun. The jurors might therefore not have relied on the re-enactment as shown in the photographs. But the jurors could also have concluded, from the photographs and evidence presented at trial, that Demit and Albert had given the troopers a more accurate account of what Frank did during the shooting incident. Keith Albert testified that he thought he was related to Frank and stated Frank was "like a brother." Demit testified that Frank was his nephew. It was certainly reasonable for the jury to infer from their testimony that neither Demit nor Albert wanted to testify against Frank. The jurors might have concluded that Demit and Albert were more candid with the troopers immediately after the incident when they were both intoxicated and frightened by what happened.
In his testimony at trial, Frank testified that he was surprised to find the handgun in the bag on a snow machine that he had recently borrowed from his father, Steve Frank. He took the backpack into Demit's residence for safekeeping. He testified that as he was walking in, he "pulled the handgun out and it just discharged." The reenactment in the photographs appears to directly contradict Frank's version of the incident. In the photographs, Trooper Miller, arm outstretched, is pointing his hand, apparently simulating holding a handgun, directly over Keith Albert's head. If the jury believed the re-enactment shown in the photographs, the re-enactment would be very favorable to the State's version of the case. The photographs appear to show Trooper Miller, re-enacting Frank's actions, deliberately aiming the handgun and firing it just over Keith Albert's head. We are unable to conclude that admission of the photographs was harmless error. We accordingly reverse Frank's conviction for assault in the third degree. However, we conclude that admission of the photographs did not affect the jury's verdict convicting Frank of misconduct involving weapons in the third degree.
Judge Savell did not err in refusing to instruct the jury on "fleeting possession"
Frank argues that Judge Savell erred in refusing to instruct the jury on the doctrine of fleeting possession. Frank argues that he came into possession of the firearm involuntarily and that his temporary possession of a firearm was driven by circumstances that made his possession reasonable.
The doctrine of "fleeting possession" first arose in a drug case, Moreau v. State. In Moreau, the court held that a person who had only fleeting possession of narcotics could not be convicted of possession of those drugs when she was seized by the police "before she could exercise sufficient control over [the drugs] to constitute `possession' under the statute." Later, in Adams v. State we held that a defendant who came into possession of drugs involuntarily and terminated his possession as quickly as reasonably possible was not guilty of possession. In Jordan v. State the defendant was observed hiding a packet of cocaine in the wheel well of a parked car. We concluded that the evidence in the case supported the possibility that the defendant had possessed a packet of cocaine only for the purposes of disposing of it. Since the evidence could support this conclusion, we concluded that the trial court erred in not instructing the jury on a theory of "passing control." While we have applied the doctrine of "fleeting possession" or "passing control" in drug cases, we have not decided whether the doctrine could be extended to apply to weapons offenses.
588 P.2d 275, 286 (Alaska 1978).
706 P.2d 1183, 1187 (Alaska App. 1985).
819 P.2d 39, 40-41, 43 (Alaska App. 1991).
Id. at 43.
See Coleman v. State, Alaska App. Memorandum Opinion and Judgment No. 3723 at 19 (Dec. 17, 1997), 1997 WL 775567 at *10.
In any event, it seems clear that Frank had more than "passing control" over the handgun in this case. According to Frank's testimony, when he discovered the gun, he took it inside Demit's residence. He removed the gun from the bag. The gun discharged. He placed the gun on the table after it went off. And then he took the gun from Demit's residence to Lily Albert's house, where he left it. Under Frank's testimony, his possession of the firearm amounted to more than "passing control." We therefore conclude that Judge Savell did not err in refusing to instruct the jury on this issue.
The State presented sufficient evidence for a jury to convict Frank of assault in the third degree
Frank argues that the evidence supporting his conviction for assault in the third degree was insufficient to support the jury's verdict. He argues that the State did not present evidence that he placed Keith Albert in fear of imminent serious physical injury. Frank argues that, since Albert was looking out the window when the gun discharged, Albert simply was not aware of any threat of imminent serious physical injury.
Frank apparently relies on cases where a victim is unaware of the defendant's actions at the time of the assault. For instance, Professor LaFave uses as an example a case in which a victim was unaware that the defendant pointed an unloaded gun at him. The defendant was held not to have committed an assault. Professor LaFave states "[i]t is not enough, of course, to intend to scare the other without succeeding; if the other fails to notice the threatened battery, the threatener, not having succeeded in his plan, cannot be held guilty of assault."
2 Wayne R. LaFave, Substantive Criminal Law § 16.3(b) at 569 (2d ed. 2003).
Id.
Frank stretches this doctrine too far. Even though Albert did not see Frank discharge the weapon, he certainly heard the discharge. He testified that the sound of the gun discharging frightened him. It is uncontested that Albert was immediately aware that the gun had been fired near him. Under these facts, a jury could conclude that Frank committed assault in the third degree. To follow the logic of Frank's reasoning would lead to an absurd result. Any time a victim did not see a person shoot at him the State would be unable to convict the defendant of assault in the third degree. This is not a sensible construction of the statute, and we are confident that the legislature did not intend this result.
Conclusion
We AFFIRM Frank's conviction for misconduct involving a weapon in the third degree. But we REVERSE Frank's conviction for assault in the third degree.