Opinion
Court of Appeals No. A-10414.
June 8, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Patrick J. McKay, Judge, Trial Court No. 3AN-07-3689 CR.
G. Blair McCune, Attorney at Law, Wasilla, for the Appellant. Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Douglas Q. McClain appeals from his convictions for kidnapping, third-degree assault, third-degree misconduct involving weapons, and two counts of fourth-degree assault. He raises four arguments: (1) the trial court erred in denying his motion to cross-examine a complaining witness regarding a pending municipal prostitution charge; (2) the trial court erred in not disclosing the mental health records of another complaining witness; (3) his assault convictions should have merged with his kidnapping conviction; and (4) his sentence was excessive. For the reasons that follow, we affirm McClain's judgment in all respects.
Background
M.J. was a prostitute who had recently relocated to Anchorage from Kansas City. M.J. went to a motel to purchase crack from Annie Shinault, one of McClain's co-defendants in this case. Shinault introduced M.J. to Douglas McClain and asked whether M.J. would prostitute herself to McClain for drugs or money.
See Shinault v. State, ___ P.3d ___, Op. No. 2308, 2011 WL 2084136 (Alaska App. May 27, 2011).
In April 2007, Shinault took M.J. to McClain's trailer in Muldoon, where M.J. performed a strip dance, smoked crack, and allowed McClain to perform oral sex on her for about $150 or $175. M.J. asked McClain to take her home, but he refused and made a number of derogatory comments. Angered by McClain's behavior, M.J. called a friend to come pick her up. But before leaving the trailer, M.J. stole two ounces of crack, a pistol, a cell phone, and McClain's car keys.
M.J. told people that McClain likely had more money at his trailer. Some of these acquaintances then robbed McClain, stealing about $8,000 from him.
A few days later, on April 8, 2007, M.J. was walking home when Shinault pulled up in a truck. Believing it would be futile to run, M.J. got in the truck. Shinault picked up Brenda Cleveland (the third co-defendant in this case) and the three proceeded to McClain's trailer.
When they arrived at McClain's trailer, McClain immediately struck M.J. in the face, demanding to know what became of his money and drugs. M.J. fell to the ground and all three of her abductors began kicking her. This was the start of a series of assaults and tortures that lasted for about three days. McClain whipped M.J. with a belt and forced her to take off her clothes. At various times, McLain threatened M.J. with a handgun and threatened to kill her.
At some point during this abuse, V.B. — an acquaintance of both Cleveland and Shinault — arrived to help clean up the trailer in exchange for drugs. V.B. took McClain's crack pipe while he slept, scraped it clean, and smoked the residue. She then disassembled the pipe and hid it in various locations around the trailer. She also stole some rolls of quarters from one of the bedrooms. When McClain eventually realized that V.B. had stolen these items, he — along with Shinault and Cleveland — subjected V.B. to some of the same treatment as M.J. They beat her with a belt, threatened her with a bat, struck her in the face, and strip-searched her. She was forced to squat over a mirror and inspect her own vagina to show that she had not hidden crack inside. Shinault pointed a gun at her and said she was going to shoot her.
Eventually McClain fell asleep, and Cleveland and Shinault apparently left the trailer. V.B. escaped to a nearby gas station, where she called the police.
A jury found McClain guilty of kidnapping M.J., third-degree assault on M.J., third-degree misconduct involving weapons, and two counts of fourth-degree assault against both V.B. and M.J., respectively. Superior Court Judge Patrick J. McKay imposed a composite sentence of twenty-five years and 180 days' imprisonment. Discussion The limitation on the cross-examination of M.J. was harmless beyond a reasonable doubt.
AS 11.41.300(a)(1)(C); AS 11.61.110.
AS 11.41.220(a)(1)(A).
AS 11.61.200(a)(1).
AS 11.41.230(a)(1).
M.J. was arrested in September 2007 (about five months after her assault at McClain's trailer) for a prostitution charge prosecuted by the Municipality of Anchorage. However, before she appeared in court, she returned to Kansas City, and a bench warrant issued for her arrest in the prostitution case. She nonetheless worked with the State to prepare as a witness in this case and returned to Alaska for trial in June 2008. Despite the State's knowledge of M.J.'s outstanding warrant, she was not arrested upon arrival.
Judge McKay ruled that McClain could inquire "as to the existence of the bench warrant that wasn't executed and as to a phone call [that the prosecutor made to urge the Office of] Victim[s'] Rights [to help M.J. get the warrant quashed]." But the judge ruled that the defendants could not ask "what the underlying crime was."
M.J. also received immunity from prosecution for any crimes she committed in the course of her interactions with McClain in exchange for her testimony against McClain, Shinault, and Cleveland. McClain cross-examined M.J. extensively regarding this immunity agreement. He asked her about nine different crimes she committed and their respective penalties, including several drug offenses, robbery, burglary, assault, and conspiracy to commit robbery. He established that she did not want to go to prison. And he asked, "Committing nine serious felonies is a good motivation to try to get out of [going to prison], isn't it? . . . And do whatever it takes to not have to spend any time there?" M.J. answered in the affirmative and admitted that "she got a huge break" from the State in this case.
McClain also cross-examined M.J. about the outstanding warrant for her arrest and the fact that she had not been arrested upon her arrival in Alaska. M.J. admitted that the District Attorney's Office and the Office of Victims' Rights worked with her to get her warrant quashed and that knowing she would not be arrested was a "strong motivator."
On appeal, McClain now argues that Judge McKay erred in denying him the constitutional right to cross-examine M.J. "concerning her bias and motive to fabricate on account of the pending Municipality of Anchorage prostitution charges."
A trial court must be "particularly solicitous toward cross-examination that is intended to reveal bias, prejudice, or motive to testify falsely." But "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness'[s] safety, or interrogation that is repetitive or only marginally relevant."
Wood v. State, 837 P.2d 743, 745 (Alaska App. 1992) (collecting cases).
Id. at 746-47 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
We generally review a trial court's ruling regarding limitations on cross-examination for abuse of discretion. If the trial court abused its discretion and made a constitutional error, then the State bears the burden of proving that the error was harmless beyond a reasonable doubt.
See Wyatt v. State, 981 P.2d 109, 112 (Alaska 1999) (citing Colt Indus. Operating Corp., Quincy Compressor Div. v. Frank W. Murphy Mfr., Inc., 822 P.2d 925, 932 (Alaska 1991)).
Id. (citing Wamser v. State, 652 P.2d 98, 103 (Alaska 1982)).
McClain was permitted to cross-examine M.J. extensively on her bias; the only restriction the court placed was that McClain could not inquire into the crime (prostitution) that formed the basis for her outstanding warrant. Judge McKay ruled that McClain could inquire into "[t]he fact that there's a warrant out there and that the State and the Municipality, law enforcement officers aren't arresting her." However, he ruled that inquiring into the underlying charge of prostitution would be irrelevant.
We conclude that, if there was any error in the judge's ruling about the prostitution charge, then the error was harmless beyond a reasonable doubt. The name of the charge that M.J. was facing was not particularly relevant to her bias. And the fact that the prostitution charge was being prosecuted by the Municipality weakened the inference that the State prosecutor would be able to control the disposition of that charge. In addition, McClain thoroughly cross-examined M.J. regarding the felony charges covered by the State's immunity agreement. These felony charges carried much more serious penalties than the misdemeanor prostitution charge. And the jury already knew that M.J. was a prostitute and smoked crack. There is no reasonable possibility that additional examination regarding the pending prostitution charge would have altered the jury's verdicts.
AS 11.66.100(b); Anchorage Municipal Code 8.65.010-.020.
The court was not required to disclose V.B.'s mental health records.
McClain filed a motion for in camera review of mental health and substance abuse treatment records for both M.J. and V.B. Specifically, McClain was interested in whether the records "contain 404(b) evidence relating to the complaining witnesses['] mental health and drug and alcohol usage. This information may also relate to the complaining witnesses['] ability to perceive and recall." The State filed a notice under seal that V.B. had received treatment from Fairbanks Community Mental Health Center.
Judge McKay ordered the mental health center to provide all of V.B.'s records to the court. He then reviewed the records in camera "for issues concerning V.B.'s ability to perceive and accurately report events." He found "that in the context of the claims in this case, no documents are material and relevant to the defense." The records were therefore not released to the defense.
On appeal, McClain asks this court to review the records and determine whether Judge McKay erred in concluding that they were not relevant or material to the defense. We have reviewed all of the records. These mental health records do not suggest that V.B.'s ability to recall or perceive events was affected by substance abuse or any mental illness at the time of the events in question. There is also no relevant evidence of V.B.'s prior acts or character that could have been used by McClain at trial. We conclude Judge McKay was not required to release these records to McClain.
The trial court was not required to merge McClain's assault and kidnapping convictions.
As described above, McClain was found guilty of kidnapping M.J., third-degree assault on M.J., third-degree misconduct involving weapons, and two counts of fourth-degree assault — one against V.B. and one against M.J. McClain argued that his kidnapping and assault convictions involving M.J. should merge.
Judge McKay merged the third-degree and fourth-degree assault convictions for the crimes committed against M.J. But the judge declined to merge these consolidated assault convictions into the kidnapping conviction. He sentenced McClain to twenty years for the kidnapping, three years for the assaults against M.J., two years for the weapons misconduct, and 180 days for the assault against V.B. All sentences were to run consecutively, for a composite sentence of twenty-five years and 180 days of imprisonment.
On appeal, McClain argues that the kidnapping conviction established that McClain restrained M.J. with the intent to inflict physical injury upon her. Therefore McClain argues that the force McClain used to restrain M.J. in the kidnapping was the same force McClain used to assault M.J.
The test for analyzing whether double jeopardy requires convictions for two different crimes to be merged is whether differences in intent or conduct between the statutory offenses are substantial in relation to the basic social interests protected or vindicated by the statutes.
Whitton v. State, 479 P.2d 302, 312 (Alaska 1970).
We conclude that there were significant differences in intent and conduct distinguishing the assaults that McClain committed against M.J. from the restraint that comprised the kidnapping offense. McClain accomplished the assaults by threatening to kill M.J. with a handgun and by forcing her to endure three days of torturous abuse, including beating and whipping her with a belt. These assaults clearly went beyond the conduct essential to the kidnapping. We agree with the trial court's conclusion that these assaults did not merge with the kidnapping conviction.
McClain's sentence was not excessive.
McClain argues that his twenty-five-year composite sentence is excessive. McClain discusses Williams v. State ( Williams I), in which we observed that "[f]irst offenders who have kidnapped and raped their victims have typically received composite sentences of twenty years or less." He argues that his sentence should be lower because he was not convicted of sexual assault. But the use of our observation as a benchmark was rejected in a later opinion in the same case, following a remand from the Alaska Supreme Court. And McClain is not a first offender; he has a prior felony conviction for fourth-degree misconduct involving a controlled substance.
800 P.2d 955, 958 (Alaska App. 1990), modified on reconsideration, 809 P.2d 931 (Alaska App. 1991).
Williams v. State ( Williams II), 809 P.2d 931, 932-33 (Alaska App. 1991).
McClain also argues that we have affirmed a sentence of fifteen years of imprisonment with seven years suspended for kidnapping and assault, when ruling on the defendant's claim that the sentence was excessive. But even if the cases had involved similar circumstances, the fact that we did not reverse a lower sentence does not logically establish that a greater sentence would be excessive.
Dancer v. State, Mem. Op. J. No. 5084, 2006 WL 1720099, at *5, *7 (Alaska App. June 21, 2006).
See Pusich v. State, 907 P.2d 29, 35 (Alaska App. 1995).
In this case, McClain's sentence was on the low end of the indeterminate sentencing range of five to ninety-nine years' imprisonment for kidnapping. Judge McKay carefully considered the length of time that should be imposed and chose a sentence of twenty years on the kidnapping conviction to emphasize the goals of isolating McClain from society and deterring others from committing similar offenses.
AS 12.55.125(b).
The State correctly points out that "[w]hen this court reviews a composite sentence imposed for two or more criminal convictions, we assess whether the combined sentence is clearly mistaken, given the whole of the defendant's conduct and history." And because we look at the defendant's conduct as a whole, "we do not require that each specific sentence imposed for a particular count or offense be individually justifiable as if that one crime were considered in isolation."
Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000).
Id.
In this case, McClain kidnapped M.J. and held her against her will for about three days. He beat her, whipped her, threatened to kill her, and watched while Cleveland committed a degrading sexual assault on her. Judge McKay found that, while McClain may not have committed some of the most egregious violations against M.J., he was the "initiator" of this entire retaliation. When we consider McClain's conduct as a whole, we conclude that the sentence imposed by the trial court was not clearly mistaken. Conclusion
See generally McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (adopting the clearly mistaken test as the standard of review in sentence appeals).
We AFFIRM the superior court's judgment.