Opinion
Court of Appeals No. A-9338.
November 19, 2008.
Appeal from the Superior Court, Third Judicial District, Valdez, Donald D. Hopwood, Judge, Trial Court No. 3VA-03-240 CR.
Kathleen Murphy and Douglas Moody, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Daniel Lee Nichols killed his mother by strangling her. The grand jury charged Nichols with first-degree murder, two counts of second-degree murder, manslaughter, and two counts of third-degree misconduct involving weapons. Nichols pleaded no contest to the weapons charges, and the jury convicted Nichols of first-degree murder.
AS 11.41.100(a)(1)(A).
AS 11.41.110(a)(1).
AS 11.41.120(a)(1).
AS 11.61.200(a)(1) (a)(10).
Nichols argues that the superior court erroneously admitted evidence that he strangled a correctional officer a few years before the homicide. We conclude that the superior court did not abuse its discretion when it admitted this evidence.
Nichols also appeals the superior court's restriction on his parole eligibility. We conclude that the superior court's findings justify the parole restriction. Accordingly, we affirm Nichols's conviction and sentence.
Background facts and proceedings
On October 15, 2003, in Valdez, Nichols strangled his mother to death. A few hours later, Nichols agreed to go to the police station to talk with the police. For more than five hours, Nichols spoke with Daniel Mott, an officer with the Valdez Police Department, about his background and about the homicide. The interview was recorded. During the interview, Nichols showed Mott the stranglehold he used to choke his mother. Nichols also handwrote an account of the day's events:
At approximately 2 o'clock [on Wednesday, October 15, 2003], I placed a cell phone call to my mother and asked to be picked up. I waited and was picked up. I asked to drive and drove to the Valdez campground. While parked, I attempted to convince my mother to loan me a hundred dollars so that I could buy some food. She would not let me have any money because she had given me $200 on Monday. I begged and pleaded with her, but she would not be swayed. I got so frustrated that I stepped from the vehicle to smoke a cigarette and calm down. She then got out of the vehicle with my brother's dog to walk him, she said. She came around and stood in front of me demanding a hug. When I refused, she backed me against the van and hugged me anyway telling me that she loved me over and over. I could not believe that she would tell me that after all [that] has led up [to] this point. I could not bear it anymore, and I closed my eyes and squeezed my arms. All I remember saying over and over was no, you don't, no, you don't. I cried and locked up. We both fell to the ground, and I was completely clenched. I couldn't open my eyes. I lay there for approx[imately] 10 to 12 minutes. When I could finally let go, I stumbled down the road crying and made my way through the woods back to AJ's house where I had been staying. At approx[imately] 3:30 pm, I walked to my home and got my Ford pickup and drove to Mike's Palace and ate a cheeseburger. Then [I] returned my pickup to my home. I walked to AJ's house and remained there until contacted by [the Valdez Police Department].
Before trial, the State filed notice of its intent to offer prior bad act evidence under Evidence Rule 404(b)(1). The State identified an assault from 1999 when Nichols was in custody at the Cook Inlet Pretrial facility. Nichols was convicted of fourth-degree assault for grabbing Corrections Officer David Doucet from behind and strangling him. Doucet broke Nichols's hold by lifting Nichols off the ground and throwing him to the floor. As a result of the struggle, Doucet was scratched on the left side of his neck and his left forearm and had abrasions and bruising on the left side of his cheek. Nichols was bruised on his face. Nichols told investigators that he did not remember assaulting Doucet.
Nichols responded to the State's notice, asserting that the State had not demonstrated that the prior bad act evidence was relevant for a non-propensity purpose, and that even if the evidence was relevant, the relevance was far outweighed by its potential for unfair prejudice. The State replied that the assault on Doucet was relevant to prove Nichols's intent, preparation, know ledge, and the absence of mistake or accident. On the eve of trial, the State asked the trial court to rule on the admissibility of Nichols's assault conviction. The State repeated its earlier arguments, and added that the evidence would also be admissible to rebut any claim of self-defense. Nichols continued to argue that the evidence was irrelevant and extremely prejudicial, but he acknowledged that the evidence might at a later point in the trial be appropriately admitted as rebuttal evidence. Superior Court Judge Donald D. Hopwood decided he needed to hear the evidence before he ruled on the admissibility of the prior assault.
In opening statement, Nichols claimed that the State could not prove that he intended to kill his mother, and could not prove that he did not act in self-defense.
During the State's case, Judge Hopwood returned to the issue of the prior bad act evidence. The State repeated its arguments that the assault was relevant to: (1) rebut Nichols's claim of self-defense; (2) show that Dixie Nichols's death was not an accident; (3) prove Nichols's knowledge of strangulation; (4) show Nichols's plan to kill his mother; (5) show absence of mistake; (6) show preparation; (7) show that Nichols was physically capable of strangling a person; and (8) show lack of provocation.
Nichols argued that the prior assault was irrelevant to intent because the circumstances of the four-year-old assault and the current charge that he murdered his mother were very different: (1) Nichols was incarcerated when he attacked Doucet; (2) the assault on Doucet happened almost five years earlier and Doucet's recollection might be faulty; (3) the results of Nichols's strangling of Doucet and Nichols's strangling of his mother were "drastically different", and (4) there was no evidence that the methods of strangulation used on Doucet and Nichols's mother were the same — the assault on Doucet started with a sneak attack from behind while, according to Nichols's admissions, the assault on his mother escalated from a face-to-face verbal disagreement to a physical altercation. Nichols also asserted that whatever probative value the evidence had was outweighed by the unfairly prejudicial effect on the jury of hearing that Nichols had assaulted a correctional guard while he was in custody. Nichols pointed out that Doucet believed that Nichols intended to kill him and that he would have succeeded but for Doucet's size and training.
Judge Hopwood ruled that the assault on Doucet was relevant to prove Nichols's intent and the absence of mistake or accident. But because of the potential for prejudice from this evidence, Judge Hopwood deferred his decision under Rule 403 until the State had presented all of its evidence (except for Doucet's testimony).
The State called Chief Medical Examiner Franc G. Fallico, who had supervised Dixie Nichols's autopsy. Dr. Fallico testified that he could not say with any certainty how Dixie Nichols was strangled, only that she died of asphyxiation at the hands of another. Fallico testified that it is "very easy" to accidentally kill a person by misapplying a neck compression designed to make a person pass out. And with respect to the amount of force it would take to strangle someone, he said that "everybody's different in terms of injuries showing up and amounts of force." But Dr. Fallico testified that Dixie Nichols's death was not an accident. Her death was the result of "a determined conscious knowledgeable [effort] by a person, a purposeful [effort] . . . of a reasonable person, one in contact with his or her surroundings. . . ."
Near the close of the State's case, Nichols again argued that admitting the prior assault would "lead the jury down the lane of propensity" rather than assist the jury in a proper mens rea analysis. But Judge Hopwood found that Nichols's attack on Doucet "seem[ed] to be similar" to the manner in which Nichols strangled his mother:
Here we have — here and there we have the defendant's use of a large amount of force, both instances, how the pressure was applied, and the particular pressure points, that is areas of the neck, an unwillingness to release the hold with that prior, and from the officer's description in the materials given to me and the defendant's description on that video that was given to me to review, the relative positions of the defendant and the other person were very similar. Also, the — the acts and the force that were required to break each of these holds seem to have been similar.
It seems to me that from — from simply 404(b)(1) analysis, not addressing 403 and the balancing, that because of these similarities, the significance in this case of the prior assault on the corrections officer, is that if the defendant had been through this before, then — and it — and it's substantial evidence that he knew of the possible consequences of this type of behavior, then it would be relevant and probative of particular states of mind that are [at] issue here. That is, state of mind involving the intent to kill on the murder charge, knowledge that this conduct w as substantially certain to cause serious physical injury or death. . . .
Thus, Judge Hopwood concluded that Rule 404(b)(1) was satisfied: The prior assault was relevant to Nichols's intent or absence of mistake and accident.
Balancing the prejudicial effect of this evidence against the probative value under Evidence Rule 403, Judge Hopwood ruled that the evidence was admissible. Judge Hopwood declared that the danger of unfair prejudice would be curtailed by his ruling that the State could not point out to the jury the similarities between the two stranglings. The State could only ask Doucet about the type of hold Nichols used, how the pressure was applied, the amount of force used, Nichols's unwillingness to release his hold, the relative positions of Doucet and Nichols, the force and acts required to break Nichols's hold, Doucet's injuries, and what would have happened if Doucet had been a smaller person. "With those kinds of restrictions and the tailoring of what the jury may hear about this [prior bad act], then I conclude that [the] probative value exceeds the unfair prejudice." Judge Hopwood also decided to instruct the jury that the evidence should not be used for a propensity purpose, and he required the State to submit the questions it planned to ask of Officer Doucet for review by the court.
Officer Doucet testified that while he was on duty as a correctional officer in the summer of 1999, Nichols snuck up behind him, grabbed him around the neck, and strangled him. Doucet then lifted Nichols off of him and they "tussled." According to Doucet, if he had been a smaller or weaker person, he might not have been able to break free. Doucet received some bruising and a sore throat as a result of the attack. Consistent with Judge Hopwood's restrictions, the prosecutor did not ask Doucet whether he believed Nichols intended to kill him, and Doucet did not volunteer testimony on this issue.
In the defense case, Nichols testified that when his mother went to restrain him after he got out of the vehicle, he struggled to get free and the two fell to the ground. Nichols explained that, when his mother reached out to restrain him, she was calling him a demon and declaring that a demon had possessed him. Nichols also claimed that his mother had previously performed exorcisms on him to remove this demon. After he freed himself, Nichols said that his mother kicked him as he stood up and walked away. He testified that he was not sure whether she was injured or not, but he fully expected that she would call the police and report that he assaulted her. Nichols also said that the demonstration with Officer Mott of how he choked his mother was not an accurate portrayal of the struggle because the officer was just standing there and not fighting back, whereas his mother made the first move during their struggle.
In closing argument, the prosecutor did not mention Doucet's testimony or the prior assault conviction.
The jury convicted Nichols of first-degree murder. Judge Hopwood imposed a 99-year term for this crime and also limited his eligibility for discretionary parole until he had served 50 years. Nichols appeals. The superior court properly admitted the prior bad act evidence
For the admission of other crimes or bad acts evidence, Rule 404(b)(1) contains three basic requirements: (1) the evidence must be introduced for a proper purpose; (2) the offered evidence must be relevant to an issue in the case; and (3) the evidence must satisfy the balancing test from Evidence Rule 403. Evidence Rule 404(b)(1) reads:
Other Crimes, Wrongs, or Acts. (1) Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In this case, the prior bad act evidence was offered to prove intent and absence of mistake or accident.
The result of Nichols's conduct was not in dispute; Dixie Nichols died at the hands of her son. The case turned on whether Dixie Nichols's death was accidental or intentional and, if intentional, whether Nichols acted in self-defense. Nichols testified to a version of the incident that was an amalgam of accident and self-defense. Thus, the jury had to consider whether Nichols choked his mother because he believed doing so was necessary to protect himself and, if he did so believe, whether that belief was reasonable. The jury also had to decide whether Nichols intended to kill his mother when he strangled her. With respect to the legal issue raised, Nichols's case is similar to Brown v. Anchorage. Brown was tried for shooting a dog, and he claimed self-defense at trial. The district court admitted evidence of an earlier incident in which Brown, based on his wife's report that she had been attacked by the neighbor's dog, armed himself and went to the neighbor's house and shot the dog. Brown later reported that he shot the dog after it charged him. We agreed with the district court that this prior shooting was highly probative of Brown's state of mind and intent when he shot the second dog: "[The prior shooting was probative to show] the implausibility of Brown's claim that the dog lunged at him and to establish that his fears, if they existed at all, were unreasonable."
915 P.2d 654 (Alaska App. 1996).
Id. at 656.
Id.
Id.
Nichols's case is also similar to Adkinson v. State. Adkinson claimed that he accidentally shot a trespasser. The supreme court affirmed the superior court's admission of evidence that Adkinson had previously pointed his shotgun at people who approached his land and threatened to shoot them, evidence the State offered to rebut Adkinson's claim that the shooting was an accident.
611 P.2d 528 (Alaska 1980).
Id. at 532.
In Clark v. State, we recognized two prerequisites to the admission of evidence of a prior bad act to show intent: (1) intent must be seriously disputed, and (2) the prior bad act must be similar to the misconduct with which the accused is charged. The assault on Doucet satisfies both these requirements. Nichols claimed at trial that his mother's death was an accident, or was at least justified as self-defense. And Nichols's strangulation of Doucet was similar to Nichols's description to Officer Mott of how he strangled his mother.
953 P.2d 159 (Alaska App. 1998).
Id. at 162.
Here, the jury was required to resolve the contradiction between Nichols's testimony and argument at trial and his detailed admissions to the police shortly after he strangled his mother. Doucet's testimony — and the limitations Judge Hopwood placed on the use of that testimony — provided the jury with probative evidence to evaluate Nichols's state of mind when he struggled with his mother. We therefore conclude that Judge Hopwood did not abuse his discretion when he admitted the evidence of Nichols's assault on Doucet.
The superior court adequately justified the parole restriction
Before trial, Nichols pleaded no contest to two counts of third-degree misconduct involving weapons. At sentencing, Judge Hopwood imposed a 99-year sentence for first-degree murder. He also imposed 2 years for each count of weapons misconduct, concurrent with each other and consecutive to the murder sentence. Thus, Nichols received a composite term of 101 years to serve.
AS 11.61.200(a)(1) (a)(10).
Additionally, Judge Hopwood restricted Nichols's discretionary parole eligibility. Under AS 33.16.090(b)(1), Nichols normally would have been eligible for parole after serving one-third of his period of confinement. But under the authority of AS 12.55.115, Judge Hopwood ordered that Nichols would not be eligible for discretionary parole until he serves 50 years' imprisonment. Nichols argues that this restriction on his parole eligibility was clearly mistaken.
A judge exercising the authority to restrict a defendant's eligibility for discretionary parole must find that the defendant's normal parole eligibility is not sufficient to protect the public and ensure the defendant's reformation.15
Nichols's pre-sentence report shows ten prior convictions, including two felonies — forgery and vehicle theft — and two prior assaults: the fourth-degree assault against Officer Doucet and a 1992 assault of a sixteen-year-old that started as an argument and eventually escalated into an assault.
At the time he was arrested for killing his mother, Nichols was on release pending a petition to revoke his probation in the forgery case. The petition was based on Nichols's conduct of trespassing into an acquaintance's home and brandishing a medieval mace. Nichols told the acquaintance that he brought the mace to show to him, and then he left.
Judge Hopwood decided that Nichols should be incarcerated until he is no longer physically able to hurt people. He based this ruling on the need to protect the public and gave the greatest weight among the Chaney sentencing factors to the need to isolate Nichols from society. H e found that Nichols potential for rehabilitation was "nil." He based this finding on three factors: Nichols's criminal history, his "worsening thought processes," and his "lack of direction and focus." Judge Hopwood found that the public would not be adequately protected if Nichols were released when he would normally be eligible for discretionary parole without restriction: "If he's released while he's still ambulatory, he likely would be in good health and vigorous, and he could kill again. . . ." The record supports Judge Hopwood's findings and those findings justify Nichols's parole restriction. We therefore affirm Judge Hopwood's decision to restrict Nichols's discretionary parole eligibility until Nichols serves 50 years of imprisonment.
Conclusion
The judgment of the superior court is AFFIRMED.
Id. at 655.