Opinion
Court of Appeals No. A-10425 Trial Court No. 4FA-08-939 CR No. 5857
06-27-2012
THOMAS P. HALE JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Christine S. Schleuss, Law Office of Christine Schleuss, Anchorage, for the Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, 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 Superior Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge.
Appearances: Christine S. Schleuss, Law Office of Christine Schleuss, Anchorage, for the Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
On August 21, 2007, Thomas P. Hale Jr. and three other men went to the residence of James Steward to ask him about some property, including around thirty guns, which had been stolen from a storage locker. During the encounter, Hale and Steward were involved in a physical altercation. Hale stabbed Steward, who died of his wound.
The State charged Hale with murder in the second degree for killing Steward. The State also charged Hale with tampering with evidence for disposing of the knife he had used to stab Steward. In a jury trial conducted by Superior Court Judge Michael A. MacDonald, Steward was convicted of manslaughter, a lesser included offense, and of tampering with evidence. Judge MacDonald sentenced Hale to a composite sentence of seventeen years with two years suspended.
Hale appeals, arguing several evidentiary issues and contending that Judge MacDonald erred in rejecting his proposed mitigating factors at sentencing. We affirm.
Factual and procedural background
John McKelvey was renting a storage locker in Fairbanks. He estimated that the property he had in the locker had a value of roughly $20,000 to $25,000 and included about thirty guns. In August of 2007, McKelvey discovered that his storage unit had been broken into and that property was missing.
McKelvey discussed his loss with several of his friends, including Thomas Hale Jr., Doug Morris, Gerald Girl, and Ron Tribble. On the evening of August 21, 2007, three of these men (McKelvey, Hale, and Morris) drove to the shop of their acquaintance, Darren Albrecht. They knew that Albrecht had recently purchased some guns. They wanted to find out whether any of the firearms that Albrecht purchased were firearms that had been stolen from McKelvey. Albrecht testified that, when the three men visited him, he felt very intimidated.
After the three men left Albrecht's shop, Hale, Morris, Girl, and Tribble went to the home of James Steward, who they believed might have information about McKelvey's stolen guns. After the four men arrived at Steward's house, words were exchanged, and a violent physical altercation between Hale and Steward soon ensued. The fight involved weapons — a knife and a baton.
After the altercation, Hale, Morris, Girl, and Tribble left. These men later testified that Steward did not seem to be seriously injured when they left his home.
Steward's body was found in his garage the following day. According to an autopsy performed on the body, Steward had died from a seven-inch deep stab wound from a knife blade which entered his back below his left scapula. The wound had penetrated Steward's left lung. Steward also had abrasions on his face, a tear on his ear, and four lacerations on his neck.
In April 2008, a grand jury indicted Hale for murder in the second degree and tampering with physical evidence. In a jury trial conducted by Judge MacDonald, Hale testified that he acted in self-defense, stabbing Steward because Steward had tried to split Hale's head open with a baton. The jury ultimately convicted Hale of the lesser included offense of manslaughter, along with tampering with evidence for disposing of the knife. Hale does not challenge the tampering conviction on appeal.
Judge MacDonald did not abuse his discretion in denying Hale's motion for a mistrial
Hale argues that Judge MacDonald erred in denying his motion for a mistrial, which Hale made in response to the following italicized remarks from the prosecutor's opening statement:
The purpose of a summary of expected testimony is to give you an idea of the witnesses who will be called and generally what they're going to say, what the proof is going to show. The proof is going to show in this case that you're going to
see a side of Fairbanks that most of you have never seen. It's about killing James Steward at his place about a year ago on August 21, 2007.
....
There's another individual sitting on the right side [of a swing on Steward's porch]. That's John McKelvey, Wild Bill.
....
Here's the way it happened and what the proof is going to show. John McKelvey, Wild Bill, had some guns stolen.
....
I'm not permitted to go into the details of the selling and so forth, and that's not the purposes [sic] of this trial. We're not here to try what kind of guns and whose guns are they really and where are they going to go and so forth. The point of the issue is that John McKelvey will say that he had some guns stolen from a storage unit, and he wanted to know who did it.
From the transcript, it appears that Hale's counsel was concerned about speculation that Hale might have been associated with the Hell's Angels and that there might be some connection between the guns and the Hell's Angels. The court had previously entered a protective order that there would be no mention of the Hell's Angels unless there had been prior approval from the court.
When Hale made his motion for a mistrial, Judge MacDonald concluded that the prosecutor had not violated the protective order and had not done anything improper by briefly stating that there were some issues which were not relevant to the jury's decision. He pointed out that the jury had already been instructed that the evidence in the case would be limited to facts that were material to the case. He denied the mistrial motion.
In reviewing a trial judge's denial of a motion for a mistrial, we give substantial deference to the judge's ruling due to the fact that the trial judge is in a much better position than we are to weigh the possible prejudicial effect of a particular argument or statement on the jury. Judge MacDonald found that the prosecutor had not made improper statements and that Hale had not been prejudiced. We conclude that Judge MacDonald's findings are supported by the record and that he did not abuse his discretion in denying Hale's motion for a mistrial.
Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005).
Judge MacDonald did not commit plain error by failing to intervene in the State's closing argument
In his final argument, the prosecutor made the following italicized statements to which Hale objects on appeal. Hale, however, did not object to these statements in the trial court.
We informed you at the very beginning of this trial that we're going to show you a seamy side of Fairbanks, some that most of you haven't seen before and hopefully will never see.
....
I submit to you, ladies and gentleman, it was four goons who came to do what they came to do.
....
Mr. Tribble says [he's] known Thomas Hale for quite a few years. He's a friend ... . And he knows [Hale] doesn't back down. Well, you can't be an enforcer in a shakedown if
you're going to back down, can you? And there was no backing down here, ladies and gentlemen, there was none.
"'A plain error is one that is (1) so obvious that it must have been apparent to a competent judge or a competent lawyer even without an objection, and (2) so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice.'" The prosecutor's statements about which Hale complains are at least arguably proper comments on the evidence introduced at trial. They therefore do not constitute plain error.
Adams v. State, 927 P.2d 751, 756 (Alaska App. 1996) (quoting Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985)).
In his brief, Hale also mentions questions which the prosecutor asked of Darren Albrecht and Hale which he also apparently contends constituted plain error. But Hale does not give any explanation as to why these questions were improper or prejudicial. We do not find plain error from either the State's questions at trial or its remarks in closing argument.
Judge MacDonald did not err in allowing the State to impeach John McKelvey with his prior testimony at grand jury
Hale argues that Judge MacDonald erred in allowing the State to cross-examine John McKelvey with prior statements which McKelvey made when he testified before the grand jury. The State contended that the statements that McKelvey made at grand jury were inconsistent with McKelvey's trial testimony.
Alaska Evidence Rule 613 permits a witness to be questioned about prior statements the witness made which are inconsistent with the witness's trial testimony. Generally, to lay a foundation to ask a witness about a prior inconsistent statement, the examiner should allow the witness the opportunity to explain the prior statement.
On the fourth day of trial, the State called McKelvey as a witness. McKelvey testified on direct about the events of August 21 that led to the death of James Steward. In particular, in his trial testimony McKelvey indicated that during Steward's confrontation with Hale, Steward had a weapon — a baton. The prosecutor confronted McKelvey with the testimony that McKelvey gave at grand jury in which McKelvey stated that he did not see Steward with a weapon. The prosecutor also confronted McKelvey with other statements which he made at grand jury which appeared to be inconsistent with McKelvey's trial testimony.
The day after McKelvey had been excused as a witness, the prosecutor asked to play the entire recording of McKelvey's grand jury testimony. Hale's attorney argued that the entirety of McKelvey's testimony would not be admissible as prior inconsistent statements. The attorney also argued that Hale's right to confrontation would be violated if McKelvey was not present when the State played the recording of McKelvey's grand jury testimony. Ultimately, it appears that Hale's attorney agreed that most portions of McKelvey's grand jury testimony could be played for the jury.
McKelvey was then recalled as a witness. He was questioned about his prior testimony, and portions of his grand jury testimony were played. Both sides questioned McKelvey, both after his testimony had been replayed on Friday and when court reconvened the following Monday.
Hale first argues that Judge MacDonald erred in allowing McKelvey to be impeached with his grand jury testimony about whether Steward was armed. He argues that McKelvey's grand jury testimony was not actually inconsistent with his trial testimony. But Hale did not object on this ground. He therefore must establish plain error.
Hale has not established plain error. McKelvey's testimony at grand jury appeared to suggest that Steward was not armed at the time of the confrontation. And McKelvey's testimony at trial was that Steward was armed with the baton. Although McKelvey attempted to explain the inconsistency, McKelvey's statements at grand jury were sufficiently inconsistent to allow the trial jury to evaluate them in determining McKelvey's credibility.
Hale also argues that Judge MacDonald erred in allowing the State to recall McKelvey after he was released following the first time he testified. But Hale's attorney had insisted that it would violate Hale's confrontation rights to play the recording of McKelvey's grand jury testimony for the jury unless McKelvey was present to be examined about or to explain any inconsistency between his grand jury testimony and his trial testimony. We conclude that Judge MacDonald did not err in allowing the State to recall McKelvey.
Hale also argues that Judge MacDonald erred in allowing the State to repeatedly impeach McKelvey with his prior inconsistent statements. But Hale never objected on this ground, and Hale has not explained why he was prejudiced by this cross-examination. We do not find plain error.
Judge MacDonald did not err in rejecting Hale's proposed mitigating factors
Hale argues that Judge MacDonald erred in rejecting two mitigating factors at sentencing: that Hale "committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected the defendant's conduct" and that "the victim [Steward] provoked the crime to a significant degree." In order to establish either mitigating factor, Hale was required to prove the factor by clear and convincing evidence.
AS 12.55.155(d)(3).
AS 12.55.155(d)(7).
AS 12.55.155(f)(1).
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Hale's argument that he established the mitigating factors is based upon a view of the testimony at trial in the light most favorable to himself. According to Hale, Steward initiated the attack. But Judge MacDonald, who observed the evidence presented at trial, viewed the evidence in a substantially different way. From the testimony of Darren Albrecht (whom Hale, McKelvey, and Morris had visited shortly before they contacted Steward), Judge MacDonald concluded that these men were very threatening and intimidating in the way they conducted their inquiry about the stolen guns. He concluded that when Hale, Morris, Girl, and Tribble went to the home of James Steward, they acted in a similarly coercive manner. He concluded that, even if Steward had done something, "his actions were a result of reacting to the coercive presence of these four men and their actions." He concluded that Hale had not shown by clear and convincing evidence that Steward had attacked Hale with a baton. He also concluded that, even if Steward had reacted aggressively to the coercion, Hale's actions were disproportionate to any provocation. He noted that Steward was surrounded by "four big, physical, healthy men" and there was "no need to kill ... Steward." He found that Hale could easily have retreated and that there was no necessity for killing Steward. He therefore rejected the proposed mitigating factors.
Judge MacDonald's factual findings are supported by the record and are not clearly erroneous. We conclude that these factual findings support his conclusion that Hale did not establish the mitigating factors by clear and convincing evidence.
Conclusion
The judgment of the superior court is AFFIRMED.