Opinion
Court of Appeals No. A-10040.
December 2, 2009.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-05-1308 Cr.
Dan S. Bair, Assistant Public Advocate, Appeals Statewide Defense Section, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Blair M. Christensen, 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
Mario Page appeals his convictions for kidnapping and second-degree murder. He contends that his trial was rendered unfair when a witness referred to the fact that Page was in custody. Page also appeals the sentence that he received. He asserts that his term of imprisonment for the murder (50 years to serve) is excessive, and he also asserts that the sentencing judge had an insufficient basis for restricting Page's eligibility for discretionary parole.
AS 11.41.300(a) and AS 11.41.110(a)(1), respectively.
For the reasons explained here, we reject Page's attacks on his conviction and the length of his sentence, but we agree that the sentencing judge made insufficient findings to justify the restriction on Page's eligibility to apply for discretionary parole, and we therefore direct the superior court to reconsider that aspect of Page's sentence.
Underlying facts of the case
In April 2005, Page was in California buying illicit drugs. While he was gone, Page's girlfriend, Kira Gray, took a large bag of cocaine out of Page's car and gave it to Terrell Hounges. Hounges took nine ounces of the cocaine, and then he returned the bag to Gray. Hounges sold some of this cocaine, and he gave some of it away.
When Page learned of this incident, he became quite angry. He made it clear to Gray that he expected her to take curative action regarding the missing cocaine. To placate Page, Gray telephoned Hounges and falsely told him that Page had assaulted her; she also told Hounges that she knew where Page kept more drugs, and she suggested that she and Hounges could go steal these drugs. All of this was a pretext to lure Hounges to a remote location in the Matanuska-Susitna Valley.
Using Page's car, Gray picked up Hounges and drove him out to the Mat-Su Valley. Page and three accomplices (Tommie Patterson, Fredrick Johnson, and Jack Derr) drove to the same spot in a different car, a white Kia. When Gray arrived at the agreed-upon location with Hounges, she drove past the place where Page and his three accomplices were waiting in a wooded area. Page and the others then followed Gray.
Page and his friends confronted Hounges and then, at gunpoint, they forced Hounges into the trunk of the Kia. They ultimately drove Hounges to another remote spot, on a dirt road.
After they parked the car, Page pulled Hounges out of the trunk and confronted him about the stolen cocaine. Gray then shot Hounges in the leg. When Hounges began screaming in pain and jumping around, Page told Gray to "shut [Hounges] up". In response, Gray shot Hounges four times in the head. Tommie Patterson then shot Hounges several times while Hounges lay on the ground.
Following this murder, Page and his friends drove to a nearby lake and threw their guns into the lake. They then dropped off the Kia, retrieved Page's car, and drove back to Anchorage. A little over a week later, Page, Patterson, and Johnson poured gas on the Kia and set it on fire, destroying the vehicle.
Based on this incident, a jury convicted Page of second-degree murder and kidnapping. For the murder, Superior Court Judge Eric Smith sentenced Page to 70 years' imprisonment with 20 years suspended ( i.e., 50 years to serve). For the kidnapping, Judge Smith imposed a consecutive 20 years with 5 years suspended ( i.e., 15 years to serve). Thus, Page's composite sentence is 65 years to serve. Judge Smith ordered that Page not be eligible to apply for discretionary parole until he served 30 years of this sentence.
Page's claim that he was entitled to a mistrial because a witness referred to the fact that he was in custody
One of the witnesses who testified at Page's trial was James Freitas, a friend of Page who accompanied him on his trip to California in April 2005 to buy drugs. During his testimony, Freitas explained that Page did not return to Alaska with the rest of the group because Page was arrested and incarcerated in California.
Page did not object to this testimony, other than to argue that the State should not be allowed to explore the reason for Page's incarceration in California. However, Page's attorney later elicited this information himself during his cross-examination of Freitas: according to Freitas, Page was jailed in California because he engaged in "exhibitionist speed in front of a police officer".
The next witness was Robin Freitas, James's wife. During his direct examination of Robin Freitas, the prosecutor attempted to clarify the length of time that Ms. Freitas had known Page. In response, Ms. Freitas referred to the fact that Page had been incarcerated for some time:
Prosecutor: I want to just clarify something. You said you've known [Page for] two and a half, three years.
Freitas: Maybe. It was right — [I'm] not exactly sure.
Prosecutor: Okay.
Freitas: I mean, counting . . .
Prosecutor: Well, . . .
Freitas: . . . the time he's been in jail, which I think is almost two years now. I mean, I still know him.
Following this testimony, Page's attorney moved for a mistrial, arguing that Ms. Freitas's comment about Page's being in jail for two years undercut the presumption of innocence and thus prejudiced the fairness of the trial. However, the defense attorney asked Judge Smith to reserve ruling on this issue until the attorney had a chance to submit a written motion and supporting memorandum.
Judge Smith then instructed the prosecutor to lead Ms. Freitas in further questions on this topic, so as to avoid having Ms. Freitas make any further references to Page having been incarcerated. The judge noted, as an aside, that both James and Robin Freitas appeared to be difficult witnesses to control. This remark proved to be accurate — for, when the prosecutor resumed his questioning of Robin Freitas, she immediately once more volunteered the information that Page had been incarcerated:
Prosecutor: And your husband said, [he] testified that he had known [Page] three or four or maybe as much as six months prior to the end of May, when you testified before the grand jury. Okay?
Freitas: Okay.
Prosecutor: Okay. Do you have any reason to dispute that time frame that your husband put out there?
Freitas: No. I was actually adding the time that [Page] was in jail.
Page's attorney again objected, and a largely indiscernible exchange followed.
Later, during a break in the testimony, the jury submitted a note to the court which asked, "Can we know what [Page] had been in jail for?" Given the jury's use of the past perfect tense, Judge Smith concluded that the jury was asking about Page's incarceration in California. However, the judge decided to give the jurors an answer to the broader issue. He told the jurors, "You are to draw no inference from any reference to the defendant being incarcerated for any reason on any occasion."
Later, when Page's attorney filed the written motion for a mistrial, he argued that Robin Freitas's two references to Page's incarceration were too prejudicial to allow the trial to continue. The State responded that Ms. Freitas's passing references were not prejudicial to Page, given the fact that Freitas's husband James had already testified (without objection) that Page had been jailed in California. The State also noted that Ms. Freitas had volunteered this information when it was not called for by the prosecutor's questions.
Judge Smith denied Page's motion for a mistrial. The judge noted that Robin Freitas's two references to Page's being in jail were "off-hand references" that were "unspecific as to time". The judge also noted that Ms. Freitas's references to Page's incarceration were volunteered "not long after [her husband made] reference to Mr. Page being arrested and going to jail in California" — "testimony that was not objected to".
Having reviewed the transcript of Smith's trial, we note that, before James and Robin Freitas took the stand, an earlier witness — Richard Howard — had already informed the jury that Page had been jailed.
Richard Howard was married to the daughter of James and Robin Freitas, and he was acquainted with Page. Toward the beginning of Howard's testimony, the prosecutor asked him how he was acquainted with Page. The following exchange occurred:
Prosecutor: You've identified Mr. Page and said that you know him. How do you know him?
Howard: He was staying at the house.
Prosecutor: Which house?
Howard: My parents-in-laws' [house].
Prosecutor: Okay, James and Robin Freitas' house?
Howard: Yes.
Prosecutor: And when did you meet him, would you say? Or how long have you known him?
Howard: I knew him for about three months before he got locked up.
Howard's remark drew no objection or other comment.
A few minutes later, the prosecutor asked Howard whether he was familiar with one of the vehicles used in the kidnapping / murder, a 2002 maroon Cadillac. During this exchange, the prosecutor adverted to the fact that Page had been jailed. Again, there was no objection or other comment:
Prosecutor: Do you recognize this car, sir?
Howard: Yes.
Prosecutor: Is that the car that you're the registered owner of?
Howard: Yes.
Prosecutor: Okay. When was it purchased, sir?
Howard: I don't recall the exact month.
Prosecutor: Okay. You said that you met Mario [Page] within two to three months before he wound up in jail?
Howard: Correct.
Prosecutor: Okay. Was it during that period of time?
Howard: Yes.
During the continuation of Howard's testimony, the jury heard again — for a third time — that Page had been jailed. Howard was explaining that he purchased the Cadillac at Page's instigation, and that even though the vehicle was registered in Howard's name, Page provided all of the purchase money and Page had primary use of the vehicle. The prosecutor then asked Howard to pin down the exact time when this happened:
Prosecutor: Was this all happening within the time that you were talking about you knowing Mr. Page — that three months?
Howard: Correct.
Prosecutor: And this was in `05 when you were involved in buying the car?
. . .
Howard: It was either `05 or `06. I mean, it was in . . .
Prosecutor: Well, let's think about it for a second. It's January right now, of `07.
Howard: Yeah. I'd say `05, then.
Prosecutor: Okay. Not last spring?
Howard: No.
Prosecutor: Okay. Do you recall when you drove [Page] to the airport — whether it was in the middle of those three months or [th]ereabouts [?] [Do you recall] what month it was when you drove him to the airport?
Howard: It was around the end of the time I knew him. Right before he ended up going to jail.
Prosecutor: Okay.
Howard: Maybe a couple of weeks before.
Again, Howard's answers drew no objection or other comment.
Later, when Judge Smith and the parties were discussing Page's motion for a mistrial based on Robin Freitas's testimony, neither the judge nor the parties discussed the fact that Howard's earlier testimony contained these repeated references to Page's incarceration. Indeed, even on appeal, neither of the parties mention this fact in their briefs to this Court. We do, however, take judicial notice of the content of Howard's testimony as further support for Judge Smith's conclusion that Page had not been substantially prejudiced by Robin Freitas's references to his incarceration.
In addition to concluding that Page had not been substantially prejudiced by Robin Freitas's two brief references to his incarceration, Judge Smith also concluded that there had been no prosecutorial misconduct — because, both times, Ms. Freitas was not directly responding to the question put to her, but rather volunteered the information. To this last observation, we would add our own: that when Ms. Freitas volunteered information about Page's incarceration the second time, she had just listened to Page's attorney seek a mistrial on this ground, and she had just heard Judge Smith instruct the prosecutor to frame his questions so as to avoid any further reference to this information. In other words, Judge Smith might better have directed his admonition to the witness rather than the prosecutor.
The decision as to whether particular events require a mistrial is entrusted to the trial judge's discretion, and an appellate court will reverse the trial judge's decision only if convinced that this discretion has been abused.
See, e.g., Hamilton v. State, 59 P.3d 760, 769 (Alaska App. 2002).
In particular, in cases like Page's, where the trial judge responds to potentially prejudicial testimony or a potentially prejudicial event by giving a curative instruction to the jury rather than declaring a mistrial, an appellate court will normally defer to the trial judge's decision — because the trial judge hears the testimony or observes the event first-hand, and thus is in a better position to gauge whether or to what degree it has affected the jury.
Allen v. State, 51 P.3d 949, 954-55 (Alaska App. 2002).
Thus, the ultimate issue in Page's case is whether it was clearly unreasonable for Judge Smith to have concluded that a curative instruction was a sufficient remedy for Robin Freitas's two references to the fact that Page had been in jail.
In Allen v. State, 51 P.3d 949 (Alaska App. 2002), this Court considered whether the trial court abused its discretion when it denied a murder defendant's motion for a mistrial after two witnesses testified, in violation of a protective order, about the defendant's being in jail. 51 P.3d at 953-54. As was true in Page's case, the witnesses volunteered the challenged testimony; the witnesses were not directly responding to the questions put to them. Id.
This Court concluded that, because the witnesses' references to Allen's incarceration were non-specific references to Allen's being incarcerated at some prior time for an unknown reason, a cautionary instruction would have been sufficient to cure any prejudice. Id. at 955. And, because no such instruction was requested, this Court ruled that the trial court did not abuse its discretion when it denied the motion for a mistrial. Id.
Our decision in Allen is consistent with past Alaska decisions finding that isolated references to a defendant's incarceration do not require a mistrial. See Preston v. State, 615 P.2d 594, 603-04 (Alaska 1980); Malemute v. State, 791 P.2d 624, 625-26 (Alaska App. 1990); and Hines v. State, 703 P.2d 1175, 1178-79 (Alaska App. 1985).
See also Wheat v. State, Alaska App. Memorandum Opinion No. 2151 (January 23, 1991), 1991 WL 11650673 at *4 (declining to find plain error where a witness testified that they last saw the defendant when he was in jail); Peter v. State, Alaska App. Memorandum Opinion No. 1170 (April 30, 1986), 1986 WL 1160982 at *1-2 (declining to find an abuse of discretion when the trial judge denied the defendant's motion for a mistrial after a witness testified that the defendant had recently been released from jail); and Leonard v. State, Alaska App. Memorandum Opinion No. 311 (March 16, 1983), 1983 WL 807827 at *3 (finding that, even if the trial judge committed error by failing to declare a mistrial after a witness revealed that the defendant had been incarcerated, the error was harmless because the jury already knew that the defendant had prior convictions).
Given our decisions in these cases, and given the broad curative instruction that Judge Smith gave to the jury, we conclude that Judge Smith did not abuse his discretion when he concluded that a jury instruction was sufficient to cure the problem and that Page's motion for a mistrial should be denied.
We note one further matter connected to this claim of error.
On page 18 of his opening brief to this Court, Page's appellate attorney argues at length that the trial prosecutor acted intentionally, or at least recklessly, in eliciting Ms. Freitas's testimony about Page having been in jail. Specifically, Page's attorney asserts that when Freitas made her first reference to Page's incarceration, she was "directly answer[ing] a question posed by the prosecutor". Page's attorney further asserts that, after Freitas made this first reference to Page's incarceration, "the [prosecutor] took no steps . . . to insure that the witness did not repeat the improper testimony", but rather asked a follow-up question that "predictably [led] the witness [to repeat] the improper evidence". Page's appellate attorney then declares, "This is not a case where[] a witness, without solicitation, volunteered improper evidence."
As we have already noted, Judge Smith expressly found that Freitas's testimony was volunteered, that it was not directly responsive to the questions put to her, and that therefore the prosecutor had not committed any misconduct. If Page's appellate attorney wished to challenge these findings, it would have been more proper for the appellate attorney to concede that Judge Smith made these findings, and then openly argue that the findings were clearly erroneous.
Moreover, we note that when this matter was argued in the superior court, Page's defense attorney expressly declared that he was not contending that the prosecutor had committed misconduct — and then the defense attorney added, "I don't think that [such a contention] would be honest."
Given this record, Page's present contention on appeal — that the trial prosecutor committed misconduct by intentionally or recklessly eliciting Freitas's testimony — is both baseless and waived.
We caution appellate counsel that Alaska Professional Conduct Rule 8.2(a) prohibits a lawyer from making "a statement . . . with reckless disregard as to its truth or falsity concerning the . . . integrity of a judge [or] public legal officer". The term "public legal officer" includes prosecutors and public defenders. See the Comment to Rule 8.2.
Page's argument that the superior court lacked sufficient reason for imposing a second-degree murder sentence that exceeds the benchmark sentencing range
In an unrelated case with the same name, Page v. State, 657 P.2d 850, 855 (Alaska App. 1983), this Court established a benchmark sentencing range of 20 to 30 years to serve for first felony offenders convicted of a typical second-degree murder. In the present case, Judge Smith sentenced Page to serve 50 years for second-degree murder (70 years with 20 years suspended). Page argues that Judge Smith lacked sufficient justification for imposing a sentence that exceeds the benchmark range.
In his sentencing remarks, Judge Smith declared that he was not going to second-guess the jury's verdict. In other words, Judge Smith accepted the jury's decision to acquit Page of first-degree murder, and the judge sentenced Page under the assumption that Page had not acted with the specific intent to kill Hounges.
Nevertheless, Judge Smith concluded that Page bore a large responsibility for Hounges's death: "[Page and his friends] took [Hounges] to a deserted spot, with loaded pistols, under high[ly] emotional [circumstances]", and "[Page] made it very clear to [his girlfriend, Gray] that she needed to `fix' what had happened" — i.e., inflict retribution for Hounges's theft of a large quantity of Page's cocaine. Judge Smith further found that Page was a large-scale drug dealer, and that Page was motivated by the desire "to make an example of someone who ripped [him] off".
Based on these factors, Judge Smith concluded that Page's second-degree murder sentence should exceed the benchmark range. We have independently reviewed the record in this case, and we conclude that Judge Smith's sentencing decision is not clearly mistaken. The restriction on Page's parole eligibility
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
After Judge Smith sentenced Page to a composite sentence of 65 years to serve (50 years for the murder, and a consecutive 15 years for the kidnapping), he exercised his authority under AS 12.55.115 and ordered that Page not be eligible to apply for discretionary parole until Page serves 30 years of this sentence.
(Under the normal rules for determining a prisoner's eligibility to apply for discretionary parole, Page would have been eligible to apply for parole after serving approximately 20 ½ years in prison — one-third of his 50-year sentence for second-degree murder (approximately 16 years 8 months) plus one-fourth of his consecutive 15-year sentence for kidnapping (approximately 3 years 9 months). See AS 33.16.090(b)(1) and (b)(7)(C).)
Under Alaska law, when a sentencing judge restricts a defendant's parole eligibility, the judge must "specifically address the issue of parole restriction [and must set] forth with particularity his or her reasons for concluding that the [normal] parole eligibility prescribed by [statute] is insufficient to protect the public and insure the defendant's reformation." Stern v. State, 827 P.2d 442, 450 (Alaska App. 1992).
Page argues that Judge Smith failed to provide sufficient reasons for restricting his parole eligibility. The State concedes that this is so — although the State argues that the record in Page's case (the facts of his present crimes, plus his previous history within the juvenile and adult justice systems, plus his institutional history) provides potential justification for the judge's decision.
We agree with Page that Judge Smith's remarks at sentencing are insufficient to meet the requirements set forth in the Stern decision. However, we also agree with the State that the record in Page's case potentially provides a justification for Judge Smith's decision. For these reasons, we remand Page's case to the superior court so that Judge Smith can reconsider the issue of the parole restriction.
Conclusion
The judgement of the superior court is AFFIRMED, with the exception of the restriction that the superior court placed on Page's eligibility to apply for discretionary parole. We direct the superior court to reconsider that issue, and we REMAND Page's case to the superior court for that purpose.
If, on reconsideration, Judge Smith concludes that Page's eligibility to apply for parole should not be restricted, Judge Smith should modify the judgement to reflect this, and he should notify this Court of his decision. We will then close this appeal.
If, on the other hand, Judge Smith again concludes that he should restrict Page's parole eligibility, Judge Smith should issue supplemental findings to support that decision, and he should forward a copy of those findings to this Court. In that event, the parties shall have 30 days to file simultaneous memoranda addressing Judge Smith's findings and discussing whether those findings justify the restriction on Page's parole eligibility. After this Court receives the parties' memoranda, we will resume our consideration of the parole restriction issue.