Opinion
Court of Appeals No. A-9638.
August 19, 2009.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-05-00460 CR.
Douglas Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, 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 Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Glen Ogletree was convicted after a jury trial of five counts of sexual abuse of a minor in the first degree, one count of unlawful exploitation of a minor, one count of burglary in the first degree, one count of violation of a protective order, one count of distribution of child pornography, and one count of possession of child pornography.
AS 11.41.434(a)(1); AS 11.41.434(a)(3)(A).
AS 11.41.455(a)(6).
AS 11.46.300(a)(1).
AS 11.56.740(a)(1).
AS 11.61.125(a).
AS 11.61.127(a).
On appeal, Ogletree asserts three claims of error. First, Ogletree argues that Superior Court Judge Eric Smith erred when he denied his motion to sever the sexual abuse of a minor charges from the child pornography charges. But we conclude that Judge Smith did not abuse his discretion in refusing to sever the charges for trial because the charges constituted acts which were "connected together" under Alaska Criminal Rule 8(a)(3). Second, Ogletree argues that Judge Smith erred when he ordered Ogletree shackled for the majority of the trial. We conclude that Judge Smith erred in failing to consider less restrictive means of controlling Ogletree's behavior before ordering Ogletree shackled. But the error might have been harmless if the jury did not observe the shackling. Because we are unable to determine whether the error was harmless from the current record, we remand this issue to the superior court. Finally, Ogletree argues that Judge Smith committed plain error when he failed to merge Ogletree's conviction for possession of child pornography with his conviction for distribution of child pornography. We conclude that the State did not sufficiently differentiate the evidence at trial such that the convictions for possession of child pornography and distribution of child pornography were based upon separate acts. We accordingly conclude that these convictions should merge.
Factual and procedural background
Ogletree moved in with his girlfriend, Teresa Beaver, and her two children, K.J. and Tommy, sometime in late 1997, when K.J. was eight years old. Ogletree and Beaver's relationship deteriorated, and because of their incompatible sleep cycles, Ogletree began sleeping in the basement of Beaver's home sometime in 2002. According to K.J., Ogletree began touching her "like on [her] butt and stuff" when she was eight years old. K.J. testified that Ogletree first had sexual intercourse with her when she was nine years old. K.J. also testified that Ogletree had sex with her weekly from the time she was ten years old until she was thirteen years old. K.J. testified that Ogletree continued to have sex with her until she was fifteen years old. Ogletree also took photographs of K.J. naked, displaying her genitals, and touching his penis. Ogletree made K.J. take a picture of him with "his mouth to [her] vagina." (Tommy later found a collage of these pictures in the garage and turned them in to the police.)
Beaver found child pornography on Ogletree's computer a couple of times in 2003. Her son, Tommy, also reported that he found Ogletree and K.J. alone together in the shed and it looked like they were "making out." Beaver did not want to believe that Ogletree was sexually abusing her daughter because she trusted him, but she eventually began to suspect Ogletree. The relationships in the household also deteriorated over the years, and Beaver testified that Ogletree became aggressive toward her and Tommy. Beaver eventually applied for a protective order to get Ogletree out of the house.
After Ogletree was forced to leave the home by the protective order in February of 2005, K.J. told her mother everything that Ogletree had been doing to her. Beaver reported the sexual abuse to the police on February 11, 2005. The conduct described above supported the charges for sexual abuse of a minor and exploitation of a minor in counts I through V and VII of the indictment.
Immediately after the protective order was issued, Ogletree entered Beaver's home and broke into the shed. He left a note of apology for Beaver. He also left a note for K.J. which read "[K.J.], [i]f I have gotten into the shed, then there are no worries. I got everything. 3333. They were wrong for what they did and why they did it. 33333. My sister will know where I am. . . . Glen" K.J. explained at trial that the note meant that if Ogletree had gotten into the shed, he had removed "like everything bad that he had . . . like CDs. . . . [B]ecause I thought that he put the pictures of me . . . onto the CD, and I didn't want no one to see those." K.J. also indicated that the number "3" was a "sign language thing for I love you." This conduct of Ogletree's supported the charges for burglary and violation of a protective order in counts VI and VIII of the indictment.
During the course of their investigation of Ogletree, the police found hundreds of images and videos of child pornography. These formed the basis of the charges for possession and distribution of child pornography in counts IX and X.
After the grand jury indicted him, Ogletree moved to sever the charges against him into three groups: (1) the sexual abuse of a minor and exploitation of a minor charges (counts I, II, III, IV, V, and VII); (2) the charges of burglary and violation of a protective order (counts VI and VIII); and (3) the charges related to possession and distribution of child pornography (counts IX and X). The State opposed Ogletree's motion to sever the charges. Judge Smith found that all of the counts against Ogletree could be properly joined in one trial, and that Ogletree would not be unfairly prejudiced by the joinder.
Also before trial, the State moved to have Ogletree restrained in leg shackles throughout the trial. Ogletree opposed the motion. After a hearing, Judge Smith determined that Ogletree should be restrained, but left open the possibility that he would remove the shackles if Ogletree testified. (There was skirting around three-fourths of the defense table to hide the shackling. The shackles were removed during Ogletree's testimony.)
At trial, Ogletree admitted having sex with K.J. from the time she was thirteen years old. Although Ogletree also admitted having sexual thoughts about K.J. from when she was nine years old, he denied having sex with K.J. before she was thirteen. Ogletree also denied being in a position of authority over K.J. after she was ten years old. Ogletree admitted taking lewd photographs of K.J., but denied inducing her to pose for them. Finally, Ogletree admitted possessing child pornography, but argued that he did not intend to distribute it. The jury convicted Ogletree of all of the charges.
Judge Smith did not err in refusing to sever the charges for trial
On appeal, Ogletree argues that Judge Smith erred when he refused to sever the sexual abuse of a minor charges from the child pornography charges. He contends that the charges were improperly joined under Alaska Criminal Rule 8(a) and that, even if the charges were properly joined, he was entitled to severance under Alaska Criminal Rule 14 because he was unfairly prejudiced by the joinder.
We first review whether joinder was proper under Criminal Rule 8(a). Criminal Rule 8(a)(3) provides that two or more offenses may be joined for trial if they "are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Under the facts of this case, Judge Smith could properly determine that the sexual abuse of a minor charges and the child pornography charges were "acts or transactions [that were] connected together."
Nell v. State, 642 P.2d 1361, 1363 (Alaska App. 1982).
K.J. testified that Ogletree took pornographic pictures of her and also that he showed her images of child pornography often. She testified that she thought he did it to arouse her. K.J. also testified that Ogletree told her that people made money from child pornography and encouraged her to make child pornography with him. Therefore Judge Smith could properly determine that the sexual abuse of a minor charges and the child pornography charges were connected together.
Alaska Criminal Rule 14 provides that a court may order separate trials of counts "[i]f it appears that a defendant . . . [would be] unfairly prejudiced by a joinder of offenses." But the rule also provides that a "showing that evidence of one offense would not be admissible during a separate trial of a joined offense . . . does not constitute prejudice that warrants relief under this rule." Conversely, where evidence of an offense or set of offenses would be cross-admissible at separate trials, the trial court's decision to join the offenses will rarely be found to be prejudicial. Under the facts of this case, Judge Smith could properly determine that evidence of the sexual abuse of a minor charges would be admissible at a separate trial for possession and distribution of child pornography, and vice versa. He therefore did not abuse his discretion in refusing to sever the charges for trial.
Alaska R. Crim. P. 14.
See Pease v. State, 54 P.3d 316, 322 (Alaska App. 2002) (noting that in such cases "the defendant is hard-pressed to show actual prejudice . . ., since the evidence would have been admitted even if the judge had granted separate trials"); see also Stevens v. State, 582 P.2d 621, 628-29 (Alaska 1978).
Why we conclude that Judge Smith erred in ordering Ogletree shackled for trial
On November 20, 2005, the day before Ogletree's trial began, the State raised the issue of how Ogletree would be restrained during the trial. The State went on to say:
I'm assuming it's going to be the standard leg shackles under the table since he's charged with unclassified felonies and . . . in reviewing the file I noticed some notes from some of the prosecutors handling the case about his somewhat aggressive and intimidating behavior on the record in the past, so I wanted to address that with the court, and I'd ask the court to ask Judicial Services for their preference.
Ogletree's defense attorney objected to any restraint.
Judge Smith asked Judicial Services Officer Pyles to explain why he thought it was necessary to shackle Ogletree. Pyles stated that Judicial Services was recommending that Ogletree be shackled "based on the charges and unclassifieds, and what I've been advised by the district attorney on prior behavior — I personally don't have any knowledge of that. We would recommend that the leg shackles be used, and that's standard for most of our trials." The State then argued that Ogletree should be shackled for trial because a different prosecutor who had handled Ogletree's April 28, 2005, hearings had made notes that Ogletree was glaring at him and at the victims, that "defendant cannot control his conduct in the courtroom," and that he "stormed out of the courtroom." The State also noted that Judicial Services "indicated they would need two JS officers to bring this defendant in and out of court," and that "based on this behavior they felt that . . . there was an escalation of aggressiveness on his part." The State noted that another prosecutor who handled Ogletree's April 21, 2005, hearing had also indicated in his notes that Ogletree made "aggressive eye contact." In arguing that Ogletree should be shackled for trial, the State also noted again that Ogletree was charged with numerous unclassified felonies and that "[i]t's been the norm here versus the exception [to shackle] people charged with unclassified felony offenses."
The State argued that there was a strong likelihood of conviction, that Ogletree was "looking at quite a bit of time," and that the case would bring up "a lot of issues and emotions." The State further noted that the victim's mother had reported some aggressive and "nutty" behavior by Ogletree in her application for a protective order before Ogletree was arrested, including an allegation that Ogletree had plugged up the furnace ventilation in what she thought was an attempt to suffocate the family. The State concluded, "I'm looking at this as a situation of weighing the harm versus the benefit. The harm would be that if one of the jurors somehow saw that he was in shackles . . . versus the benefit that everybody is going to feel secure in this courtroom, especially [the victim]."
Ogletree's attorney pointed out that Ogletree was currently conducting himself appropriately in court and that he had done so during his last two hearings when the victim's family was present. She pointed out that Ogletree did not have a record of discipline problems while he was in custody. She argued that the nature of the charges against Ogletree did not provide a basis for shackling. She pointed out that leg shackles would not prevent Ogletree from glaring, that there was a chance that the jurors might see the shackles, and that the shackles would restrict Ogletree's liberty and affect his state of mind during the trial.
Judge Smith concluded that, in order to protect the safety and the decorum of the courtroom and to maintain order, he would authorize the shackling. But he provided that the defense could move to have the shackles removed if Ogletree testified.
Later, Ogletree's attorney asked Judge Smith to reconsider his ruling. The attorney argued that Judge Smith was required to make a finding that there were no less restrictive means to achieve the court's goals, and that Judge Smith had not made any such finding. Judge Smith declined to reconsider his ruling, emphasizing that the shackles would not be seen by the jury. At this point, Ogletree's attorney asked if she could take pictures of the shackles from various positions in the courtroom. Judge Smith granted this request, and a defense investigator took several pictures of Ogletree's shackles from various observation points. After reviewing the pictures, (apparently on a small camera screen), Judge Smith concluded that the jury would not be able to observe the shackles. He therefore declined to revisit his decision to have Ogletree shackled. However, before Ogletree testified, Judge Smith agreed to have the shackles removed so that Ogletree could walk up to the witness stand and testify.
In Nason v. State, we set out the standards for shackling a defendant at trial. These standards direct trial courts to allow shackling only after the trial court determines that the shackling is necessary to maintain order and is the least intrusive method of achieving that result. "The United States Supreme Court has held that `shackling [a defendant in the presence of a jury] should be permitted only where justified by an essential state interest specific to each trial.'" We also quoted an Alaska Supreme Court case, Anthony v. State :
102 P.3d 966 (Alaska App. 2004).
Id. at 969 (quoting Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S. Ct. 1340, 1346, 89 L. Ed. 2d 525 (1986)).
521 P.2d 486 (Alaska 1974).
In the courtroom, guards should remain outside the observation of the jury, and should deliver the defendant to the counsel table before the jury's arrival if necessary; manacles, shackles and other physical restraints are, of course, to be avoided. Deviation from these standards is justified only to protect the safety and decorum of the court, to prevent a threatened escape, or to respond to some other manifest necessity. Such measures should be taken only after the defendant has been given an opportunity for a hearing, and the restraints imposed should be the least intrusive which will accomplish the desired result.[]
Nason, 102 P.3d at 969 (quoting Anthony, 521 P.2d at 496).
In Nason, we noted that the Alaska Supreme Court has "essentially adopted the ABA's Standards Relating to Trial by Jury" which states:
Defendants and witnesses should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, [the judge] should enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant or a witness occurs in the presence of jurors trying the case, the judge should instruct those jurors that such restraint is not to be considered in assessing the proof and determining guilt.[]
Id. at 970 (quoting Standards Relating to Trial by Jury § 4.1 (Approved Draft 1968) (alteration added)).
From the record it appears that, in Palmer, Judicial Services officers recommend leg shackles as a matter of standard procedure when the defendant is charged with a serious offense. Judge Smith emphasized that Ogletree would not be prejudiced by the shackling because the jury would not be able to observe the shackles. However, Judge Smith should have focused on whether it was necessary to shackle Ogletree, and whether there were other less restrictive measures available to maintain order. Judge Smith's findings are not sufficient to justify shackling Ogletree. Although Ogletree was charged with serious offenses, the nature of those offenses did not indicate any propensity toward violence. There were hearsay allegations that Ogletree had "stormed out of the courtroom" and there were reports of "aggressive behavior" and "aggressive eye contact." But apparently Ogletree had not had any disciplinary problems while in custody and had recently conducted himself appropriately in court.
As the Alaska Supreme Court stated in Anthony: "A defendant is presumed innocent throughout the trial, and he should be permitted to face the jury with the appearance and dignity of a free and innocent man." Judge Smith's findings are simply insufficient to justify shackling Ogletree during his trial.
Anthony, 521 P.2d at 495 (footnote omitted).
In our prior decisions discussing shackling, we "have focused on the danger that a judge's decision to shackle a defendant might implicitly communicate to the jury the notion that a defendant is dangerous and therefore more likely to be guilty. But if the jury does not know of the shackling, the defendant might not be prejudiced." We recognize that the photographs taken by the defense investigator from various vantage points in the courtroom give us some opportunity to determine whether Ogletree's shackling might have been visible to the jury. However, we have reviewed the photographs and conclude that the record before us is too limited to determine whether any juror actually saw the shackles, or might have been able to determine that Ogletree was shackled. For example, the photographs cannot depict whether, during the lengthy trial, the jury would have been able to observe Ogletree's shackles directly or would have been able to determine that he was shackled either because of his limited ability to move, or for some other reason. Therefore we cannot determine whether Ogletree was prejudiced; we must remand the case.
Nason, 102 P.3d at 970.
On remand, the parties must develop the record to ascertain whether the jurors would have been able to determine that Ogletree was shackled. After the trial court reconstructs the record, the trial court shall make findings as to whether and under what circumstances the jurors actually saw the shackles, and whether Ogletree was prejudiced by this or any other aspect of the shackling. On this point, we note that the United States Supreme Court has recently held that "shackling is `inherently prejudicial'," and that the defendant need not demonstrate actual prejudice "where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury." Thus, if Judge Smith finds on remand that the shackles were "seen by the jury," the State will have the burden of proving "beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.'"
Alaska Appellate R. 210(b)(8).
Deck v. Missouri, 544 U.S. 622, 635, 125 S. Ct. 2007, 2015, 161 L. Ed. 2d 953 (2005).
Id. (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 826, 17 L. Ed. 2d 705 (1967)).
If the trial court concludes that Ogletree was prejudiced, the trial court shall grant Ogletree a new trial. The trial court shall inform this court of the new trial, and we will close this appeal. In the event that the trial court determines that the jurors did not see the shackles, or that Ogletree was not prejudiced, the trial court shall forward its findings to this court. The trial court shall issue its findings, and the parties shall file memoranda addressing those findings, in accordance with the remand order issued by this court.
Ogletree's conviction for possession of child pornography must merge with his conviction for distribution of child pornography
Ogletree argues that Judge Smith erred in failing to merge his convictions for possession of child pornography and distribution of child pornography. Because Ogletree never objected to the entry of separate convictions, he must establish plain error. We conclude that Ogletree has established plain error and that the convictions must merge.
At grand jury, the State presented the testimony of Ruthan Josten, an investigator with the Wasilla Police Department. She testified that, pursuant to a warrant, she turned over to a computer forensic examiner a package of compact discs given to her by Teresa Beaver. (Apparently Ogletree actually gave her one of the compact discs.) The compact discs taken from Ogletree's residence contained 416 images of child pornography, and the grand jury was shown a representative sample of the images and a list summarizing the contents of the compact discs. This was the sole testimony presented to the grand jury.
At trial, the State's theory that Ogletree distributed child pornography was based upon the theory that he had "hundreds of images of child pornography." The State relied on AS 11.61.125(c), which provides that possession of 100 or more items of child pornography "is prima facie evidence of distribution and intent to distribute" child pornography. The prosecutor did not differentiate the images of child pornography that supported the charge of possession of child pornography from the images that supported the charge of distribution of child pornography.
In Atkinson v. State, this court addressed a very similar situation where the defendant was charged with two counts: (1) possession of marijuana with intent to deliver, and (2) possession of marijuana. Because the State did not differentiate the marijuana at issue in the two counts, this court concluded that "the charge in each count was evidently based on the entirety of the marijuana seized." This court then held that double jeopardy barred the State from convicting Atkinson of two separate counts based on "a single act of possession involving the same marijuana." We held that, although it was possible that the jury could conceivably have convicted Atkinson on separate theories of guilt, "neither the jury instructions nor the state's argument at trial limited the jury to convicting based on the [alternate] theory." We concluded that, since the record was ambiguous, "the ambiguity [had to be] resolved in Atkinson's favor."
869 P.2d 486 (Alaska App. 1994).
Id. at 490.
Id. at 495.
Id.
Id. at 495 n. 6.
Id.
Similarly, in Ogletree's case, "the charge in each count was evidently based on the entirety of the [images] seized." The State did not argue separate theories of guilt at trial. The jury instructions similarly did not limit the jury — the jury instructions merely quoted the statutory language on the possession and distribution counts. Accordingly, we conclude that in the event that Ogletree's current convictions are ultimately upheld, Ogletree's convictions for possession of child pornography and distribution of child pornography must merge, and the superior court should impose a single sentence for these counts.
Id. at 495.
Conclusion
We REMAND the case for further proceedings on the shackling issue, and we direct the superior court to revise the judgment consistent with this decision. We retain jurisdiction.
I agree with my colleagues that Judge Smith's findings were not sufficient to justify his decision to shackle Ogletree during the trial. I write separately because I am concerned by the trial judge's approach to this issue.
As described in the lead opinion, much of the discussion in the superior court regarding the shackling issue focused not on whether the circumstances justified the shackling, but instead on whether the jurors would be able to see the shackles. Presumably, this question became the focus of attention because this Court has previously suggested that a trial judge's unjustified decision to shackle a defendant during a criminal trial will nevertheless be deemed harmless if the jurors remain unaware of the shackling. See Nason v. State, 102 P.3d 966, 970 (Alaska App. 2004).
Our decision in Nason is consonant with decisions from around the country. See Council v. State, 676 S.E.2d 411, 413 (Ga.App. 2009) (holding that it was unnecessary to decide whether the trial judge's shackling order was justified, since the jury was unaware of the shackling, and thus the defendant could not show prejudice); People v. Horn, 755 N.W.2d 212, 218 (Mich.App. 2008) (same); State v. Ninci, 936 P.2d 1364, 1386-87 (K an. 1997); People v. Anderson, 22 P.3d 347, 383 (Cal. 2001). See also Williams v. State, ___ S.E.2d ___, 2009 WL 943789, *2 (Ga.App. 2009) (a defendant who was forced to testify wearing shackles could not show prejudice because the trial was a bench trial rather than a jury trial).
Nevertheless, it would be a serious matter if trial judges focused primarily on the measures that might be employed to keep jurors ignorant of the shackling, and neglected their duty to ensure that the shackling was justified in the first place. I urge judges not to abdicate their responsibility in this manner.