Opinion
Court of Appeals No. A-9640.
March 3, 2010.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Ben Esch, Judge, Trial Court No. 2NO-03-821 CR.
Ralph B. Cushman, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Matthew C. Owens was convicted of murder in the first degree for killing Sonya Ivanoff and convicted for tampering with physical evidence. Owens appeals, arguing that there was insufficient evidence to support his convictions, that Superior Court Judge Ben Esch erred in not granting a new trial, and that Judge Esch erred in not changing venue from Kotzebue. For the reasons set forth in our following discussion, we affirm Owens's convictions.
AS 11.41.100(a)(1) AS 11.56.610(a)(2).
Factual and procedural background
Ivanoff w as a young woman who was working for the Norton Sound Health Corporation in Nome in the summer of 2003. She lived with her best friend, Timayre Towarak.
Ivanoff and Towarak visited friends the evening of August 10, 2003, and parted company after midnight. Ivanoff was wearing Towarak's Skechers shoes and a pair of jeans. She normally carried her identification, including her recreation center ID, and her apartment keys with her on a chain and wallet that attached to her arm by a metal band.
Sometime between 1:00 and 1:15 a.m., she was seen by Lam Ngo. Ngo was a janitor with a contract to clean the Tesoro in Nome. Ivanoff walked by Florence Habros and Dannita Malywotkuk, who were smoking on the porch of their mother's house near the Tesoro station. Habros and Ivanoff greeted each other. As Ivanoff walked past the house, Habros saw a Nome police vehicle slowly drive by and pull up behind Ivanoff. Ivanoff spoke for a moment with the driver and got into the vehicle. Habros could not see the police vehicle's driver. At that point, Habros asked her sister the time. It was 1:26 a.m.
There were two Nome police officers on duty that night: Stan Piscoya and Matthew Owens. The Nome Police Department used three Ford Expeditions as police vehicles. There were two older models: "Vehicle 321" and "Vehicle 322," so called because of their license plates. There was also a newer model: "Vehicle 983." The newer vehicle had running boards on the side, but the older ones did not. Vehicle 983 was also unique in that it had a 911 sticker on the back.
Habros later testified that the police car that picked up Ivanoff did not have running boards. (In an earlier statement to the police, Habros said that Ivanoff had gotten into the "new" car and described the 911 sticker.) On the evening of August 10, Piscoya was driving the newer car (Vehicle 983), and Owens was driving one of the older cars (Vehicle 322).
Rena Gologergen testified that she saw Ivanoff walking sometime after 1:00 a.m. Later, around 2:30 to 3:00 a.m., she saw Owens in his patrol car stopped at a stop sign. She testified that she saw Owens with another person in the police car. (In earlier interviews with investigators, Gologergen stated that she had been focused on Owens and did not look to see if there was another person in the car.) The Nome Police Department was unable to account for Owens's whereabouts from the time he responded to a domestic disturbance around 12:53 a.m. until he gave Piscoya a ride home around 2:50 a.m. Owens testified that Terry Calandrelli was in Owens's car for a ride along from 1:10 to 1:20 a.m. Owens testified he was downtown to supervise the bar closing from 1:30 to 2:00 a.m.
Towarak returned home in the early morning of August 11 and discovered that Ivanoff had not been there. She was unable to locate Ivanoff in spite of contacting mutual friends. Towarak contacted the police the morning of August 12 to find out if Ivanoff was in jail. However, she did not report Ivanoff missing. Ivanoff did not show up for work on August 12. At 5:16 p.m. on the 12th, Towarak went to the Nome Police Department and reported Ivanoff missing, about forty-one hours after Towarak had last seen Ivanoff.
At this time, Owens was married to Trinh Johnson. (They were getting divorced and were still engaged in a custody dispute over their son throughout Owens's trial.) Johnson testified that around 4:30 p.m. on August 12, Owens's birthday, Owens called to ask her to take their son early, as he needed to go to work because a girl was missing and "it didn't look good." He told Johnson that he did not want anyone to know that they had discussed this matter. This conversation took place about forty-five minutes before Towarak filed the missing person report. Owens testified that he did call Johnson to take their son early, but that it was on August 19, not the 12th, and that it was so that he could participate in an evidence search, not due to a missing girl.
Around 8:30 p.m. on August 12, volunteer Jon Larson discovered Ivanoff's body in some bushes about five feet from the side of Dredge Road 5, a little-used road about three to five minutes outside of Nome. Ivanoff's body was stripped of clothing, except for a sock on her left foot.
Chief Medical Examiner Franc Fallico performed an autopsy on Ivanoff on August 15. The autopsy revealed that Ivanoff died from a .22 bullet wound to the back of her head, fired from very close range. There was no indication of sexual assault. There was no trace physical evidence, such as skin scrapings under her fingernails, hairs, fingerprints, fibers, or DNA evidence on her body. There was also no trace evidence on the .22 casing or magazines that were eventually found.
Trooper William Gifford testified that the absence of trace evidence and the removal of Ivanoff's clothing indicated an attempt to prevent the police from gathering incriminating evidence. He concluded that Ivanoff's killer had "evidence awareness," such as a police officer would have.
The bullet that killed Ivanoff had a rare pattern of lands and grooves, indicating the gun used in the murder had rare rifling. There was a Jennings .22 pistol with a similar rifling pattern kept in the police station evidence room. Owens had access to the evidence room.
The State presented evidence that Owens had gone to Coffee Creek, about seventy-five miles from Nome, after Ivanoff was murdered. Owens had burned some items in the Coffee Creek fire pit. On November 5, after Owens was arrested, the troopers searched the fire pit. They found grommets from a pair of Tilt jeans, eyelets from a pair of Skechers shoes, underwire and other metal parts from a bra, four keys on a ring, and zippers. On the night she disappeared, Ivanoff was wearing Skechers shoes and a pair of jeans. Towarak testified that Ivanoff owned Tilt jeans. One of the keys which the troopers found was similar to the key from Ivanoff's apartment. A replica made from the burnt key fit the lock but did not open it, possibly because of heat damage. One of the keys the troopers found belonged to Michael Owens, Matthew Owens's uncle.
At 12:46 a.m. on September 23, a Nome police officer noticed that Vehicle 321 was missing. (The police vehicles were typically left with a key in the ignition and a key in the shotgun lock, but the doors themselves were locked with an electronic keypad.) A search began for the missing car.
At 2:50 a.m., Owens reported by radio that he had found Vehicle 321 in an old gravel pit about three to five minutes from town. Two minutes later, he reported that he was being shot at. Backup officers quickly arrived.
The Nome Police Department set up a perimeter around the gravel pit but did not find anyone. Vehicle 321 was towed to a garage. An Alaska State Trooper opened an envelope on the seat of the car and discovered it contained Ivanoff's ID card and a note. The note read:
Pigs. I hate cops. I hate everyone of you. Sonya was just a person in the wrong place at the wrong time. I do not know her. As you can see it was easy for me to take your pig car keys right there. It was not her fault. She thought I was a pig and shit just happened. She was just a person. And I just wanted to see if I could that night. Everyone of you should be more careful. I watch every move you make. You leave me alone and I will leave you alone. I will also shoot you in the head if you get close.
On the evening of August 23, Owens told his wife that the troopers had found a note that would help clear him. Analysis of the paper and printing of the note showed that it could have come from a printer that Owens had access to. There were no fingerprints, DNA, or other trace evidence on the note or the envelope.
Dealy Blackshear testified to a conversation he had with Charlotte Calandrelli, who was Owens's landlord and friend. Blackshear testified that Calandrelli told him she had seen Ivanoff's ID card and wallet in Owens's living area. Owens told her that it was evidence that he was going to turn in. Calandrelli denied having this conversation with Blackshear.
The State contended that Owens had staged the theft of the police car and planted Ivanoff's identification and the note in an attempt to thwart the police investigation. This was the evidence supporting the State's tampering with physical evidence charge against Owens.
A grand jury indicted Owens for murder in the first degree and tampering with physical evidence. Owens moved to change venue from Nome to Anchorage or Fairbanks based upon the pretrial publicity and the jury panel's familiarity with the witnesses. Judge Esch denied the motion. Owens was tried in Nome. The jury was unable to reach a verdict, and Judge Esch declared a mistrial.
Owens's second trial was scheduled for October 17, 2005. Owens again moved to change venue from Nome to Anchorage or Fairbanks. Judge Esch changed venue to Kotzebue. Following the Kotzebue jury voir dire, Owens again moved to transfer venue. Judge Esch denied the motion. The jury ultimately convicted Owens.
There was sufficient evidence to convict Owens of murder and tampering with physical evidence
In determining whether there was sufficient evidence to support a conviction, we view the evidence in the light most favorable to upholding the jury's verdict and inquire "whether reasonable jurors could conclude that the accused's guilt was established beyond a reasonable doubt."
Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
Looking at the evidence in the light most favorable to upholding the jury's verdict, a reasonable jury could have accepted the eyewitness testimony that the killer, who was driving a Nome police car, picked Ivanoff up in the early morning hours of August 11. The killer drove Ivanoff out to Dredge Road 5, shot her, and stripped her body there.
Only two Nome police officers were driving police vehicles that evening, Owens and Officer Stan Piscoya. The jury could have credited the testimony of Florence Habros, who testified that the Nome police car that picked Ivanoff up did not have running boards. Habros's testimony, if believed, described the car Owens was driving and distinguished it from the car Piscoya was driving. Although we recognize that Habros had earlier made a statement which was inconsistent with her testimony at trial in which she described the police car that picked up Ivanoff, we are to look at the evidence in the light most favorable to upholding the jury's verdict.
The Nome Police Department was unable to account for Owens's whereabouts from 12:53 a.m. until he gave Piscoya a ride home around 2:50 a.m. This would have given Owens the opportunity to murder Ivanoff during that time.
Owens told his estranged wife that a girl was missing and "it didn't look good" even before Ivanoff was actually reported missing.
The State presented testimony at trial that there was a remarkable absence of physical evidence at the murder scene as well as at the scene of Vehicle 321. Trooper Gifford testified that this absence of evidence indicated the killer knew how to prevent police from gathering incriminating evidence. He concluded that the killer had the same kind of "evidence awareness" that a police officer would have.
In addition, the State presented evidence that the bullet that killed Ivanoff had a rare pattern of rifling — the same rifling pattern as a Jennings .22 pistol that Owens would have had access to in the police evidence room. The State also presented evidence that Charlotte Calandrelli, Owens's landlord and friend, stated that she saw Owens in possession of Ivanoff's ID card and wallet in Owens's living area.
The State also presented evidence suggesting that Owens had stolen Vehicle 321 and planted Ivanoff's ID card and a note in the car in an attempt to throw the police off his trail. The evidence connecting Owens to Ivanoff's ID card, his access to Vehicle 321, the note that had been placed on the seat of the car before the window was broken, and the lack of trace evidence all pointed to Owens. In addition, the evidence that Owens was the person who had killed Ivanoff supported his connection to the theft of the police car for the purpose of thwarting the police investigation, just as the evidence that he had taken actions to thwart the police investigation supported the inference that he was the person who killed Ivanoff.
The State presented evidence Owens had burned evidence connecting him to the crime in the Coffee Creek fire pit.
When we look at the evidence in the light most favorable to upholding the jury's verdict, we conclude that a reasonable jury could have found Owens guilty of both murder in the first degree and tampering with physical evidence.
Owens is not entitled to a new trial
Owens argues that, in the event that we find there was sufficient evidence to support his conviction, we should hold that he is entitled to a new trial because the verdict went against the weight of the evidence. When a defendant makes a motion for a new trial on the ground that the verdict is against the weight of the evidence, the trial judge sits "as a thirteenth juror." The judge is required to weigh the competing evidence presented at trial, to independently evaluate the credibility of the witnesses, and to grant a new trial "only in exceptional cases in which the evidence preponderates heavily against the verdict."
See Alaska Criminal Rules 29(b), 33.
Dorman v. State, 622 P.2d 448, 454 (Alaska 1981) (quoting 2 Charles Alan Wright, Federal Practice and Procedure § 553, at 487 (1969).
Id.; see also Maloney v. State, 667 P.2d 1258, 1267-68 (Alaska App. 1983).
The State points out that Owens did not make a motion for a new trial in the trial court. Under these circumstances, we may refuse to review the issue or we may, in our discretion, review the evidence to determine whether the verdict "amount[s] to a miscarriage of justice."
See Murray v. Feight, 741 P.2d 1148, 1160 (Alaska 1987); Heacock v. Town, 419 P.2d 622, 624 (Alaska 1966).
We have previously set out the evidence against Owens and why we conclude that the evidence was sufficient to support the jury's verdict. Based on that discussion, we also conclude the guilty verdicts did not amount to a miscarriage of justice.
Judge Esch did not err in denying Owens's motion to change venue from Kotzebue.
After the grand jury indicted Owens, he moved to transfer venue from Nome to Anchorage or Fairbanks. Judge Esch denied Owens's motion, and Owens was tried in Nome. Owens's first trial ended with a hung jury. Owens again moved to transfer venue to Anchorage or Fairbanks. Judge Esch concluded that the combination of the initial pretrial publicity in Nome, coupled with the publicity from the first trial, created a substantial risk that Owens would not receive a fair trial if the case were retried in Nome. However he concluded that, rather than change venue to Anchorage or Fairbanks, he would change venue to Kotzebue. He pointed out that Kotzebue was in the same judicial district as Nome. Judge Esch reasoned that a jury from Kotzebue would be drawn from a community which was similar to the community in Nome where the crime occurred. He stated that he was familiar with both communities and was aware that neither the Nome newspaper nor the Nome radio stations were primary sources of news in Kotzebue. He concluded that he could rely on jury voir dire to measure any possible prejudice in Kotzebue.
Following jury voir dire in Kotzebue, Owens again moved to transfer venue. Judge Esch denied this motion. He concluded that the extensive voir dire gave the parties a substantial opportunity to identify any potential jurors who might not be impartial. He concluded that the seated jurors had very little specific information about the case, and that the jury selection process had resulted in a jury which could give Owens a fair and impartial trial.
On appeal, Owens contends that Judge Esch erred in not allowing him to individually question each juror out of the presence of the other jurors. Individual voir dire can be useful in cases where there is significant pretrial publicity. But in this case Judge Esch approached the problem in a different way. Judge Esch had each juror fill out an extensive questionnaire that allowed the parties to obtain substantial information about the prospective jurors before voir dire. This questionnaire gave the jurors the opportunity to bring up sensitive issues without revealing them publicly and served to alert the parties to possible areas of questioning. In addition, Judge Esch permitted Owens to conduct individualized questioning of eighty-five of the potential jurors outside the presence of the other potential jurors. He also gave Owens six extra peremptory challenges. Owens has not pointed to anywhere in the record where he might have been prejudiced by the procedure Judge Esch adopted. We conclude that Judge Esch did not abuse his discretion in conducting the jury voir dire in the way that he did.
See Mallott v. State, 608 P.2d 737, 748 n. 26 (Alaska 1980).
Owens's major contention is his claim that Judge Esch's denial of his motion to change venue from Kotzebue deprived him of his right to an impartial jury. The right to an impartial jury is guaranteed by the sixth amendment of the United States Constitution and article 1, section 11 of the Alaska Constitution. In addition, AS 22.15.080(1) authorizes the trial court to change venue when "there is reason to believe that an impartial trial cannot be had . . ."
We are to overturn the denial of a motion to change venue only if the trial court has abused its discretion. The normal rule is that a defendant who wishes to change venue because of pretrial publicity must show that there was actual prejudice. But if a case generates extensive pretrial publicity, this standard is relaxed. Under the test adopted by the Alaska Supreme Court in Mallot, when a substantial number of jurors appear to have been prejudiced, "the probability that similar prejudices are shared by, but have not been extracted from, impaneled jurors, dilutes the reliability of the voir dire process and renders unrealistic the burden requiring the defendant to show actual prejudice." Under this relaxed standard, "a motion for change of venue . . . shall be granted whenever it is determined that, because of the dissemination of potentially prejudicial material, there is a substantial likelihood that, in the absences of such relief, a fair trial by an impartial jury cannot be had." But even under the relaxed standard, "the question is not how many biased prospective jurors were identified and excused; rather, the question is whether there is substantial reason to doubt the impartiality of the jurors who remained after the selection process was complete." To do this, the trial court must "determine the likelihood that, despite voir dire, the jury panel `harbor[s] unrevealed prejudices as a result of the publicity.'" A juror who is aware of the basic facts of the case need not be excused for cause.
Harmon v. State, 193 P.3d 1184, 1200 (Alaska App. 2008).
Mallott, 608 P.2d at 748 (quoting Murphy v. Florida, 421 U.S. 794, 800, 95 S. Ct. 2031 (1975)); Newcomb v. State, 800 P.2d 935, 937-38 (Alaska App. 1990).
Mallot, 608 P.2d at 748.
Newcomb, 800 P.2d at 938 (quoting Mallott, 608 P.2d at 748).
Id.
Cheely v. State, 861 P.2d 1168, 1175 (Alaska App. 1993).
Id. (quoting Mallott, 608 P.2d at 748).
Newcomb, 800 P.2d at 938.
Owens's case generated substantial pretrial publicity. Judge Esch therefore applied the Mallott standard. Newcomb discusses factors to consider in evaluating whether pretrial publicity likely resulted in unrevealed jury prejudice. In Newcomb we pointed out that it was not merely publicity about a case that was a cause for concern, but that the significant factor was the nature of the pretrial publicity. Of particular concern are reports of confessions or other evidence that has been suppressed or is otherwise inadmissible. In addition, reports of information that the defendant will actively dispute at trial or information about a defendant's prior criminal history could cause significant prejudice. In the present case, although many of the potential jurors in Kotzebue had been exposed to reports about the case, Judge Esch could reasonably conclude from the jury voir dire that few of the jurors had been exposed to prejudicial information. Judge Esch found that there were no reports of confessions or admissions by Owens, no reports about evidence that had been suppressed or of any criminal record of Owens. Little other information appeared in the articles that was not ultimately revealed at trial. Although there were some articles that stated that Owens had a pattern of picking up women while on patrol and having sex with them, and this evidence was not admitted at trial, these articles were not extensive. Judge Esch could reasonably conclude from the results of the jury voir dire that there was little risk that this information had prejudiced the jury pool.
W. at 939-40.
W. at 939.
Id.
Newcomb also emphasizes that a court should look at the nature of the community in which the trial is conducted and the jury panel's familiarity with the trial participants. In general, this factor has been significant when "crimes occur and are tried in small communities, where many prospective jurors have personal knowledge of the circumstances surrounding the offense or are acquainted with the defendant, the victim, or the principal witnesses." It seems clear that this would have been more of a factor in Nome, where the crime occurred and many people would know the victim, the defendant, and the witnesses. The record does show that some of the potential jurors in Kotzebue were familiar with witnesses in the case. But, it appears that from the jury voir dire in Kotzebue, Judge Esch could properly conclude that the jury ultimately selected was impartial.
Id.
Id.
Under Newcomb, a significant factor to evaluate in determining whether the defendant was tried by an impartial jury is to examine the jurors who actually served. Fourteen of the fifteen jurors who ultimately served had been exposed to media coverage about Owens's case. However, none of the jurors who were seated remembered many details of the case, and none reported hearing or remembering any inherently prejudicial information. One juror was acquainted with Sonya Ivanoff. She indicated that she had played basketball against her. This juror indicated that she had never socialized with Ivanoff and just said hello to her when she saw her. None of the seated jurors knew Owens. Of the fifteen seated jurors, eight did not know Ivanoff or any of the witnesses. Five jurors were familiar with one or two witnesses out of the over eighty witnesses who testified at trial. Two jurors knew Ivanoff's family. Under these circumstances we conclude that Judge Esch did not abuse his discretion in denying Owens's motion to change venue. He could properly conclude that the jury which tried Owens was impartial.
Id. at 940.
The judgment of the superior court is AFFIRMED.
I write separately to address the issue of whether Owens is entitled to ask this Court to grant him a new trial, under the rationale that the jury's verdict is against the weight of the evidence, when Owens did not raise this matter to the trial judge.
The majority opinion acknowledges that Owens never asked the trial judge to grant him a new trial on the basis that the jury's verdict was purportedly against the weight of the evidence. However, citing the supreme court's decision in Murray v. Feight, 741 P.2d 1148 (Alaska 1987), my colleagues assert that this Court "may, in our discretion," independently review the evidence presented at Owens's trial and order a new trial if we believe that a new trial is necessary to prevent a "miscarriage of justice". See Murray, 741 P.2d at 1160.
The Murray decision does, in fact, declare that even when a litigant fails to ask the trial judge to order a new trial on the basis that the jury's verdict is against the weight of the evidence, an appellate court retains the discretion to independently evaluate the evidence and order a new trial if the appellate court concludes that the jury's verdict constitutes a miscarriage of justice. But Murray is not the supreme court's sole word on this issue. In fact, the Alaska Supreme Court has issued four decisions on this issue (including Murray), and two of these decisions are irreconcilably in conflict with the other two.
In Murray and in the earlier case of Bolden v. Kodiak, 439 P.2d 796 (Alaska 1968), the supreme court stated that, even though the appellant did not make any motion in the superior court for a new trial or for an entry of judgement notwithstanding the verdict, the supreme court would nevertheless examine the record to see whether the verdict was against the clear weight of the evidence. But in Jakoski v. Holland, 520 P.2d 569 (Alaska 1974), and Fairbanks v. Smith, 525 P.2d 1095 (Alaska 1974), the supreme court held that a litigant could not ask an appellate court to evaluate, in the first instance, whether a jury's verdict was against the weight of the evidence — and that, therefore, a litigant who fails to seek a ruling from the trial judge on this issue is barred from pursuing this issue on appeal.
I believe that the latter two decisions ( Jakoski and Smith) are better-reasoned, and that they constitute the correct resolution of this issue. Here is why:
In its earliest decision on this issue, Bolden v. Kodiak, the supreme court held that, even though the appellant did not make any motion in the superior court for a new trial or for an entry of judgement notwithstanding the verdict, the supreme court would nevertheless examine the record to see whether the verdict was against the clear weight of the evidence. 439 P.2d at 801. But the supreme court's explanation of why it was adopting this approach makes little sense.
The supreme court noted that "a motion for new trial on the ground that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial court." In other words, this type of decision must be made by the trial judge — the judicial officer who actually observed the trial proceedings and was in a position to meaningfully evaluate the credibility of the witnesses and the weight or convincing power of their testimony. The supreme court further noted that, because Bolden failed to raise this issue in the superior court, "there is nothing for us to review". But despite these procedural impediments, the supreme court stated that it had "reviewed the record to ascertain whether a new trial should be granted on the ground that the verdict is contrary to the clear weight of the evidence." The court declared that, "despite [Bolden's] failure to move for a new trial on this ground", it was proper for an appellate court "to review these questions in order to ascertain whether or not there has been a miscarriage of justice".
Id. at 800.
Id.
Id. at 801.
Id.
The underlying problem with the supreme court's decision in Bolden is that it calls on appellate courts to perform an impossible task — a task that is inconsistent with the role of appellate courts.
When a losing litigant makes a motion for a new trial on the ground that the jury's verdict is against the weight of the evidence, our law requires the trial judge to sit "as a thirteenth juror". When deciding this motion, the trial judge is required to weigh the competing evidence presented at trial — and, in doing so, the judge is authorized to independently assess the credibility of the witnesses.
Dorman v. State, 622 P.2d 448, 454 (Alaska 1981) (quoting Charles Alan Wright, Federal Practice and Procedure (Criminal), (1st ed. 1969), § 553, Vol. 2, p. 487).
As this Court explained in Maloney v. State, 667 P.2d 1258, 1267-68 (Alaska App. 1983):
Unlike the situation with a motion for judgment of acquittal, when a [litigant makes a] motion for a new trial . . . on the basis that the jury's verdict is contrary to the weight of the evidence, the trial court may properly take into consideration the credibility of witnesses. On appeal, our review of a trial court's ruling on a motion for a new trial is limited to deciding whether the trial judge has abused [their] discretion. [Citations omitted] Particularly in cases where credibility of witnesses is significant, we must give broad deference to the trial judge's ability to observe the demeanor of witnesses, to form a firsthand impression of their credibility, and to decide the weight that should be given to their testimony.
A trial judge can make these types of assessments because the trial judge has sat through the trial and has personally observed the witnesses giving their testimony. In other words, the trial judge has observed the manner in which the witnesses gave their testimony — and this can be a crucial factor in assessing the credibility and weight of that testimony. As noted by Dean Wigmore in his treatise on the law of evidence:
The conduct of [a] witness . . . is . . . admissible [evidence] when [it is] exhibited in the courtroom and on the stand, even though no formal offer of [this evidence is] required. . . . [A] witness' demeanor . . . is always assumed to be in evidence.
John Henry Wigmore, Evidence in Trials at Common Law (Chadbourn rev'n, 1970), § 946, Vol. IIIA, p. 783.
An appellate court, on the other hand, is not in a position to assess the credibility or the relative convincing power of a witness's testimony. An appellate court can not see how witnesses presented themselves, nor can an appellate court evaluate the demeanor exhibited by various witnesses when they were confronted with difficulties or inconsistencies in their testimony. In other words, it is simply impossible for an appellate court to ascertain, from the cold transcript of a trial, whether the jury's verdict is so against the weight of the evidence as to constitute "a miscarriage of justice".
In fact, the supreme court adopted this very reasoning in Jakoski v. Holland and Fairbanks v. Smith, the two decisions that reach the opposite conclusion from Bolden. In both Jakoski and Smith, the supreme court held that a litigant could not ask an appellate court to evaluate, in the first instance, whether a jury's verdict was against the weight of the evidence.
In Jakoski, the appellants contended that the monetary award they received from the jury was "inadequate and contrary to the weight of the evidence". The supreme court noted that the appellants "[made] no objection to the amount of the award . . . before the trial judge", and that the appellants "[made] no motion for new trial or for an addition to the award." The supreme court then declared:
Id.
The question of whether damages are inadequate, or excessive, is in the first instance committed to the discretion of the trial judge and should be raised on a motion for a new trial. The reason for this is that the judge who presided at the trial and observed all the events that occurred there, and who heard the witnesses and observed their demeanor, is in a far better position than an appellate court to know whether in the light of all that transpired at the trial the damages awarded by the jury were so wholly inconsistent with, or so much less than the proof of damages as reflected by the evidence[,] as to be fairly called inadequate.
Jakoski, 520 P.2d at 575.
Quoting Heacock v. Tow n, 419 P .2d 622, 623-2 4 (Alaska 1966).
The supreme court agreed that it could review the record to ascertain "whether the evidence was legally sufficient to support the verdict", id., because that determination does not require any assessment of the credibility of witnesses or the relative weight of their testimony. But the supreme court declined to address the appellants' claim that the verdict was against the weight of the evidence.
In the footnote that accompanies this conclusion (footnote 11), the supreme court cited its earlier decision in Heacock v. Town, 419 P.2d 622, 623-24 (Alaska 1966), as support for this approach. The supreme court then added, " cf. Bolden v. City of Kodiak, 439 P.2d 796, 800 (Alaska 1968)".
Literally, the " cf." signal means "compare". According to the Harvard Bluebook, " cf." means that the court decision that follows the signal "supports a proposition different from the [court's] main proposition but sufficiently analogous to lend support [to that main proposition]". This is obviously not what our supreme court had in mind when they put " cf. Bolden v. City of Kodiak" in their footnote — because Bolden is not a related, supportive holding. Instead, Bolden is a contrary holding.
The Harvard Law Review Association, The Bluebook: A Uniform System of Citation (18th ed. 2005), p. 47.
The supreme court's cursory reference to Bolden in this footnote strikes me as a sub silentio abandonment of the approach taken in Bolden. This conclusion is corroborated by the supreme court's decision in Fairbanks v. Smith later that same year.
In Smith, the City of Fairbanks appealed a jury's monetary award to Smith on the ground that the award was excessive. The supreme court noted that "the City of Fairbanks did not move for a new trial in the superior court on the ground that the jury's award to Frederick Smith was excessive." The court then reiterated that trial judges should be the ones who determine whether an award of damages is excessive or inadequate — because they are the ones who observed the events of the trial and who heard the witnesses and observed their demeanor. 525 P.2d at 1097.
Based on this reasoning, the supreme court declared that, in any appeal arising from a trial "commenced after [the] publication of this opinion", the court "[would] not review claims of excessive or inadequate damages unless [these] questions are first raised in the trial court." Id.
As I explained earlier, my colleagues rely on the later case of Murray v. Feight for the proposition that even when a defendant fails to ask the trial judge to order a new trial on the ground that the verdict is against the weight of the evidence, an appellate court still has the discretion to review this issue and to order a new trial to prevent a "miscarriage of justice". 741 P.2d at 1160.
One troubling aspect of Murray is that the supreme court did not hold that a litigant has the right to seek a new trial for the first time on appeal if the litigant can demonstrate that the jury's verdict constitutes a miscarriage of justice. Rather, the supreme court declared that an appellate court had the discretion to listen to such a claim if the litigant can establish a miscarriage of justice. In other words, the supreme court appears to have treated this claim as a type of petition for review — with the appellate court having the discretion to grant relief if it saw fit, but also having the discretion to refuse to entertain the claim for any reason, or for no reason at all. Such a rule is unhealthy; it seemingly condones judicial caprice as an acceptable approach to correcting manifestly unjust verdicts.
A second troubling aspect of Murray is that the supreme court completely ignored its earlier, contrary decision in Smith v. Fairbanks.
Murray, like Smith, involved a claim that a jury's monetary award was excessive. Murray, 741 P.2d at 1160. In Murray, the supreme court asserted that it had the discretion to review this claim, even though the claim had never been presented to the trial judge. However, the court's opinion fails to mention, much less discuss, the court's earlier decision in Smith. In particular, the supreme court failed to mention that Smith expressly holds that a litigant will not be permitted to pursue this type of claim on appeal if the claim was not raised in the trial court.
Finally, and most important, the supreme court's opinion in Murray fails to address, much less refute, the legal analysis that underlies the court's own earlier decisions in Jakoski and Smith.
The supreme court's decisions in Jakoski and Smith are based on the recognition that an appellate court generally has little way of assessing whether a verdict is against the weight of the evidence — because the members of the appellate court have not personally observed the events of the trial, nor have they heard the witnesses or observed their demeanor while testifying. For this reason, the supreme court held in Jakoski and Smith that a litigant must present this type of claim to the trial judge in the first instance.
In Murray, the court declared that even when a litigant fails to ask the trial judge for relief, an appellate court still has the discretion to grant a new trial to prevent a "miscarriage of justice". But the analysis adopted by the supreme court in Jakoski and Smith strongly suggests that an appellate court has no meaningful way to determine whether a miscarriage of justice has occurred — because the appellate court has no meaningful way of assessing the weight of the evidence.
For these reasons, I conclude that a litigant should not be allowed to claim for the first time on appeal that a jury's verdict is against the weight of the evidence. Although the supreme court allowed this type of claim in Bolden and in Murray, the Bolden and Murray decisions are flawed — because appellate courts are in no position to meaningfully evaluate the credibility of witnesses and the relative convincing power of their testimony. The supreme court recognized this problem in Jakoski v. Holland and Fairbanks v. Smith, and the supreme court's decisions in Jakoski and Smith represent a more reasoned approach to this issue.
Accordingly, I disagree with my colleagues' decision to allow Owens to argue, for the first time on appeal, that the jury's verdict is against the weight of the evidence. I would hold (1) that an appellate court has no authority to decide this issue in the first instance, (2) that our sole authority is to review a trial judge's earlier resolution of this issue, and (3) that, as a consequence, when a defendant fails to present this claim to the trial judge, the defendant is barred from pursuing this claim on appeal.