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Patterson v. State

Court of Appeals of Alaska
Jun 22, 2011
Court of Appeals No. A-10220 (Alaska Ct. App. Jun. 22, 2011)

Opinion

Court of Appeals No. A-10220.

June 22, 2011.

Appeal from the Superior Court, Third Judicial District, Anchorage, Eric Smith, Judge, Trial Court No. 3PA-05-1357 Cr.

Marjorie Allard, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.


MEMORANDUM OPINION


In early 2005, Terrell Houngues stole nine ounces of cocaine from an Anchorage drug dealer, Mario Page. Page organized a plot to kidnap Houngues, take him to a remote location, and kill him. One of the participants in this plot was Tommie Patterson, who worked as Page's right-hand man and enforcer. Another of the participants was Page's girlfriend, Kira Gray.

Page, Gray, and Patterson were ultimately convicted (in separate trials) of this murder and kidnapping. In this appeal, Patterson contends that his convictions were tainted by two evidentiary errors. First, Patterson argues that the trial judge committed plain error by allowing a state trooper to testify that he believed another State's witness was truthful. Second, Patterson argues that the trial judge committed plain error by allowing another witness to testify that Patterson was "crazy" and that Patterson was a "[bad] influence".

For the reasons explained here, we reject both of these claims of plain error, and we affirm Patterson's convictions.

The evidence presented at Patterson's trial

The following description of Patterson's case is drawn from the evidence presented at his trial, viewed in the light most favorable to the jury's verdicts. Patterson did not present any evidence to affirmatively contradict this view of events, but during the cross-examination of the State's witnesses, Patterson's attorney brought up several potential reasons why these witnesses might be doubted.

As we mentioned at the beginning of this opinion, Terrell Houngues stole nine ounces of Page's cocaine in early 2005. Page and Patterson were in California at the time, trying to establish a relationship with a new supplier. Page had left his supply of drugs in the possession and care of his girlfriend, Kira Gray. Houngues knew Gray (and was able to obtain access to the cocaine) because he was living with Gray's sister.

When Page found out about the theft of his cocaine, he blamed Gray. Gray offered to "make [things] right" by enticing Houngues to accompany her to a remote location, so that Page and Patterson could exact revenge on Houngues.

Patterson was Page's "muscle" or enforcer. He habitually carried a .40 caliber Springfield Armory XD 40 semi-automatic pistol. According to one of Patterson's friends, this pistol was Patterson's "pride and joy".

On the morning of May 8, 2005, Gray met with Page, Patterson, and another friend named Frederick Sherman Johnson. Pursuant to the plan, Gray telephoned Houngues: she told him that Page had just beaten her. Gray also told Houngues that she knew where Page kept his drugs, and she implied that she planned to get even with Page. When Gray invited Houngues to accompany her, Houngues accepted.

Gray took Mario Page's car — a red Cadillac — and went to pick up Houngues; then they drove to the Matanuska-Susitna Valley, past Wasilla and on toward Houston. Unbeknownst to Houngues (but known to Gray), Page, Patterson, and Johnson were following them at a distance in a white Kia that had been loaned to them by Sherman Johnson.

(This white Kia was owned by Kanika Jackson. Jackson was the girlfriend of James Hendrickson, who was a friend of Sherman Johnson's.)

During the drive, Gray kept in contact with the men in the Kia by cell phone: Gray used the cell phone that belonged to her and Page, while the men in the Kia used Patterson's cell phone.

By pre-arrangement, Gray drove to a spot where the men in the Kia would be waiting for them. Page and Patterson, who were armed with handguns, forced Houngues into the trunk of the Kia, and then Page drove the Kia down a dirt road, away from the Parks highway. Patterson was in the front passenger seat, next to Page. Johnson was sitting in the back seat with Gray. Gray also had a handgun.

When they arrived at a suitably remote place, Page, Patterson, and Gray got out of the car and removed Houngues from the trunk. Johnson, who now realized that Houngues was about to be killed, decided that he would stay in the car — because he "really didn't want no part of what was about to happen."

Page, Patterson, and Gray all began asking Houngues questions — primarily, asking him what had happened to the nine ounces of cocaine. Houngues protested that he had had nothing to do with the theft of the cocaine. At this point, Gray shot him in the leg. When Houngues began jumping around in pain, Page told Gray to "get him to shut up". Gray then shot Houngues several more times. Houngues was prostrate on the ground, but he was still "twitching a little bit" according to Johnson, so Patterson stood over Houngues's body and emptied his gun into Houngues.

When this murder was completed, Page, Patterson, and Gray got back into the car, and they started driving back to Anchorage. However, Page decided to make a stop so that they could get rid of the two guns that were used in the shooting: Gray's .38 caliber Lady Smith revolver, and Patterson's .40 caliber semi-automatic Springfield Armory XD 40.

Page drove to Bear Paw Lake. (He was familiar with this lake because he had previously lived in a residence located by the lake.) When they got to the lake, Patterson took the two guns (the .38 revolver and his own .40 caliber semi-automatic) and wiped them down with his shirt. Patterson then threw these guns into the lake. Before Patterson threw his .40 caliber pistol into the lake, he removed the ammunition clip from the gun and threw the clip into the lake separately.

(Page was carrying a third gun — a .45 caliber "Desert Eagle" — but that gun was not used in the shooting, so it was not thrown into the lake.)

When they got back to Anchorage, they went to the home of James Freitas. Freitas was Page's main drug courier; he would bring large quantities of drugs to Alaska so that Page could sell the drugs. Page and Frietas were quite close: Freitas testified that he loved Page like a son, and that Page would call him "Dad".

Freitas could tell from their demeanor that something had happened. Patterson told Freitas that he "emptied a clip in a guy" after Gray shot the man first.

Later that morning, Johnson and Patterson took the Kia to a car wash, and then they returned the Kia to James Hendrickson. Hendrickson, in turn, brought the car back to its owner — his girlfriend, Kanika Jackson.

When Jackson got the Kia back, she noticed that the car had been washed and the interior of the car had been "cleaned out" — or, at least, it had apparently been cleaned out. But when Jackson was driving the car, she dropped her cell phone onto the floorboard, and when she reached down to pick up her cell phone, she discovered a bag of bullets and some empty shell casings on the floorboard. Jackson identified the empty shell casings as .40 caliber.

Following this discovery, Jackson called her boyfriend, Hendrickson, to ask him about these items. A little later, Tommie Patterson arrived to retrieve the bullets and the casings from Jackson.

Several days later, Mario Page decided that they should burn the Kia — because this car could conceivably provide physical evidence to link them to the scene of the murder. Page, Patterson, and Johnson assembled to perform this job. Johnson helped to pour gasoline on the exterior of the car, and Patterson broke one of the Kia's windows and threw gasoline inside the car. Then Patterson set the car on fire. Unbeknownst to the three men, this act of arson was witnessed by Timothy Hoffman, a man who lived in a nearby apartment.

Later, Johnson and Patterson burned the articles of clothing they had been wearing when they set fire to the Kia.

Several months after these events, the state troopers' investigation into the murder began to bear fruit. In particular, the troopers identified Sherman Johnson as one of the participants, and they interviewed him. Initially, Johnson told the troopers that he had not witnessed Houngues's death, and that he knew nothing about any plan concocted by Page, Gray, and Patterson. But Johnson ultimately decided to cooperate with the State in exchange for the State's promise not to prosecute him as an accomplice to the kidnapping and murder.

Based on Johnson's description of how the two handguns used in the murder had been thrown into the lake, the troopers searched Bear Paw Lake in May 2006 ( i.e., about a year after the murder). They recovered the .38 caliber Lady Smith revolver and the .40 caliber Springfield Armory semi-automatic.

A firearms expert at the State Crime Laboratory concluded that the .40 caliber bullets recovered from Houngues's body and from the crime scene were fired from Patterson's Springfield Armory pistol. (With regard to the .38 caliber bullets, the firearms expert could say only that they could have been fired from the .38 caliber Lady Smith revolver recovered from the lake. These bullets had the same pattern of lands and grooves as the revolver, but they did not have sufficient individual identifying characteristics to allow the firearms analyst to say that they were definitely fired from this particular gun.)

After Patterson was arrested, he made statements about the murder to two men.

The first of these men was Scottie Ramsey, who was an acquaintance of Page and Patterson. Patterson told Ramsey that he had participated in a murder that was committed "over stolen drugs". Patterson explained that "they" all drove out to the Mat-Su Valley, that Kira Gray shot the victim first, and then he (Patterson) shot him after that. Patterson also told Ramsey that Gray used a revolver, while he used a .40 caliber pistol. Patterson also mentioned that they had burned the car afterwards.

According to Ramsey, Patterson was upset with Page and Gray because he found out that they had been talking about the homicide. Patterson declared that "the one mistake he made was . . . leaving [only] one body and not four."

Patterson also described the shooting to James Hendrickson, a long-time friend of his. According to Hendrickson's statement to the state troopers, Patterson told Hendrickson that he was the one who shot Houngues — that first "the girl" shot Houngues, but Houngues was still moving or twitching, and this bothered Patterson, so he walked over and shot Houngues some more.

Patterson's claim that the trial judge committed plain error by allowing a state trooper to testify that he believed Sherman Johnson was being truthful

Although this may arguably be an over-simplification of the State's evidence, the State's case against Patterson can be thought of as consisting of two main parts: (1) the testimony of Sherman Johnson, who witnessed the kidnapping and murder, and (2) all the rest of the State's evidence, whose function was to verify or at least corroborate Johnson's account. In other words, if the State was to obtain a conviction, it was crucial that the jury believe the main points of Johnson's testimony.

This brings us to Patterson's first claim of error: that a state trooper was allowed to testify that he believed Johnson was telling the truth. The trooper's testimony was given in response to a question posed by the jury.

Superior Court Judge Eric Smith, who was the judge presiding over Patterson's trial, allowed the jurors to submit questions (in writing) at the close of each witness's testimony. These questions were distributed to the attorneys, and then the judge and the attorneys screened out or amended any objectionable questions. After this screening process, Judge Smith posed the remaining questions to the witness. And after the judge completed this questioning, the two attorneys were then offered the chance to engage in an additional cross-examination of the witness, based on the witness's answers to the jury's questions.

In Landt v. State, 87 P.3d 73, 76-80 (Alaska App. 2004), this Court rejected a due process challenge to a similar procedure in which the trial jurors participated in the questioning of witnesses.

The two main investigators assigned to the Houngues murder were State Troopers Timothy Hunyor and Michael Burkmire. Both investigators testified at Patterson's trial. During both men's testimony, the prosecutor attempted to show that the troopers had not assumed the truth of Sherman Johnson's account of events; instead, the troopers repeatedly attempted to verify or corroborate Johnson's story through independent evidence.

Thus, during Investigator Hunyor's testimony, Hunyor described how he purposefully withheld some crucial information about the homicide when he interviewed Johnson — information that only the people involved in the homicide would know. Hunyor explained that, by adopting this approach, the troopers could see whether Johnson's account matched the information that the troopers had derived from the crime scene and from other witness interviews.

For example, the bullets retrieved from Houngues's body during the autopsy verified Johnson's description of the firearms that were used in the murder, and the location of the spent casings found at the scene of the murder corroborated Johnson's account of where Patterson was standing when he emptied his pistol into Houngues.

Hunyor's explanation of this investigative approach led to the following colloquy:

Prosecutor: So [in] these interviews with Sherm [Johnson], you're not taking everything he tells the investigators as the gospel truth?

Hunyor: No, sir.

Prosecutor: And how are you corroborating what he's telling you, then?

Hunyor: We're corroborating [his statements with] what we found at the scene, [and] other interviews we have . . . conducted throughout the case.

Prosecutor: And so you're able to say, . . . to some degree of certainty, whether or not he's telling you the truth . . . about certain things that you know from looking at the physical scene?

Hunyor: Yes. When we put it together at the scene, we . . . don't always listen to what [people tell us] — just like, say, in this instance, what Sherm was telling us. We're looking at other things, too. We're taking into [account] the statements that people make to other witnesses.

The defense attorney did not object to this testimony at the time, nor does Patterson challenge this testimony on appeal.

The State's next witness was Investigator Burkmire. Burkmire testified that Sherman Johnson was the one who told the troopers the make and model of the car used in the murder ( i.e., the Kia) — and that this information led the troopers to Kanika Jackson. (As we explained above, Jackson was the owner of the vehicle, and she found the bullets and the shell casings on the floorboard of her car after it was returned to her, following the homicide.)

Burkmire also explained that Sherman Johnson was the one who told the troopers about the burning of the Kia, and the troopers were able to verify — through the Anchorage Fire Department, and through interviewing witness Timothy Hoffman — the location where the Kia was burned, and also the fact that the fire was an act of arson.

And Burkmire testified about the cell phone records for the various cell phones belonging to the main participants in this case — records which corroborated Johnson's account of how Kira Gray enticed Houngues to go with her, and how Page, Patterson, and Johnson traveled in another car to intercept them in the Mat-Su Valley.

Burkmire admitted, however, that the troopers had not been able to verify or corroborate all portions of Johnson's account. For instance, Johnson told the troopers that he and Patterson burned the clothes that they had worn when they set fire to the Kia, but the troopers were unable to verify this — because Johnson said that this was done at a park in the Hillside area of Anchorage, but he could not remember which one.

Also, Johnson told the troopers that when Patterson threw the two handguns into the lake, he also got rid of the spent shell casings by throwing them into a wooded area next to the boat launch at the lake. The troopers were never able to verify this aspect of Johnson's story either. Burkmire told the jurors that the troopers conducted several searches of that area, but they were never able to find any shell casings there.

After Investigator Burkmire had been examined by both attorneys, Judge Smith and the two attorneys held a bench conference to screen the jurors' proposed questions for Burkmire.

Patterson's counsel objected to a couple of the proposed questions on the ground that they called for speculation, or for legal conclusions. Judge Smith apparently agreed. He said, "I am inclined, given a couple of [the jury's] questions, to tell the jury that [the trooper] can only answer questions about what he knows, and not . . . questions about how the case fits together. . . . There are a few questions here that really are questions the jury has to answer."

Following this remark by Judge Smith, the judge and the attorneys continued screening the jurors' proposed questions. The defense attorney noted that the judge's objection applied to the next two proposed questions, and Judge Smith agreed. After the defense attorney objected to a couple more questions, the following colloquy took place:

Defense Attorney: I don't think I have any problems with those [remaining questions].

The Court: You don't have any issue with any of these?

Defense Attorney: Yeah, [I have no objection,] as long as [Trooper Burkmire] doesn't bring up a bunch of hearsay. I mean, if [the trooper] wants to talk about [Sherman Johnson's] demeanor[, that's fine]. But I don't want [Burkmire] reciting things that [Johnson] said that he wasn't — [that Johnson] didn't testify to.

The Court: Okay.

Following this exchange with the defense attorney, Judge Smith began asking Investigator Burkmire the jury questions that had survived the screening.

Although neither the defense attorney nor the judge quoted the jury questions that they were discussing in the above-quoted colloquy, it appears that the defense attorney was referring to the jury question that Judge Smith later posed to Investigator Burkmire — the one that Patterson now challenges on appeal: "In your experience, would you be of the opinion that Sherm Johnson was straightforward, credible, in his conversations with you and Investigator Hunyor?"

If this was, indeed, the proposed question that Judge Smith and the defense attorney were discussing, then (as we just explained) the defense attorney's position was that he had no objection to Burkmire's answering this question, as long as Burkmire refrained from disclosing any information gleaned from Johnson's out-of-court statements if Johnson had not already testified to that same information.

In other words, it appears that the defense attorney had no problem with the proposed question so long as Burkmire's answer resembled Investigator Hunyor's earlier testimony — i.e., so long as Burkmire discussed the aspects of Sherman Johnson's account that either had been or had not been corroborated by independent evidence, and so long as Burkmire did not attempt to inject new evidence into the trial.

A few minutes later, Judge Smith posed the jury's question to Burkmire, and Burkmire gave the following answer:

The Court [reading the jury's question]: In your experience, would you be of the opinion that Sherm Johnson was straightforward, credible, in his conversations with you and Investigator Hunyor?

Inv. Burkmire: From my experience with Mr. Johnson, he's like anyone else. He's a human being, and human beings who are involved in activities like this are going to minimize their particular part or their particular role. I do believe that Mr. Johnson did provide us with a lot of information that was very truthful and very credible, and we [made] every attempt to confirm [whether] what he was telling us was truthful or not.

We obtained video surveillance [from] the Holiday [gas station at Pittman Road], we obtained the guns from the lake where he told us we could find them. We . . . found the [corroborating] information about the Kia. There's a lot of things that were confirmed. There were a lot of things — and there were some things that were not confirmed. You know, he told us that they burnt the gas cans at this particular location; we never found any evidence of a gas can being burnt there. Not to say that it was or not, but there was nothing to corroborate or confirm that [what Johnson described] did take place there.

[Regarding Johnson's] involvement as far as, you know, what he saw when he was there, his participation in the . . . removal of Mr. Houngues . . . into the [trunk of the] Kia — did [Johnson] . . . participate in the forceful removal of Mr. Houngues, you know? I believe that every person [who was] there took an equal part in what . . . happened. And, yes, I think he's minimizing his role [in] the actual physical act at the scene. But the other things — as far as leading up to it, what actually took place — I believe he's being very truthful as to what happened.

The defense attorney made no objection to Burkmire's answer.

On appeal, Patterson argues that Judge Smith committed plain error when he allowed Burkmire to answer the jury's question. Patterson contends that even though his attorney made no objection to either the question or the answer, Judge Smith should have realized (even without an objection) that the jury's question was improper and that Burkmire's answer was inadmissible.

But under Alaska law, when a defendant presents a claim of plain error, the defendant must negate the possibility that their attorney's failure to make a timely objection in the trial court was the product of a tactical decision. In Patterson's case, the record of the trial court proceedings does not merely suggest a reasonable possibility that the defense attorney consciously chose not to object. Rather, the record unambiguously demonstrates that the defense attorney made a conscious decision not to object to the jury's question, or to Burkmire's answer.

Borchgrevink v. State, 239 P.3d 410, 421 (Alaska App. 2010); Vann v. State, 229 P.3d 197, 212 (Alaska App. 2010).

As we have explained, all of the jury's proposed questions were screened by the trial judge and the attorneys before Burkmire was confronted with these questions. Patterson's attorney knew exactly what question would be asked, and she expressly declared that she had no objection to the question (or to Burkmire's answering this question) "as long as [Burkmire did not] bring up a bunch of hearsay", and as long as he did not "[start] reciting things that [Sherman Johnson] didn't testify to."

Burkmire's answer stayed within these boundaries. Burkmire stated his belief that Johnson "did provide [the troopers] with a lot of information that was very truthful and very credible". But Burkmire explained that his conclusion was not based on his personal assessment of Johnson's credibility, but rather on the results of the troopers' attempts to "confirm [whether] what [Johnson] was telling [them] was truthful or not". Burkmire then listed several instances where independent investigation verified or corroborated Johnson's account of the events surrounding the kidnapping and murder.

At the same time, Burkmire acknowledged that the troopers had been unable to verify or corroborate several other aspects of Johnson's account, and Burkmire told the jurors that he was unable to say whether those parts of Johnson's story were true or not.

Perhaps more important, Burkmire told the jurors that he actively distrusted Johnson's account to the extent that it minimized Johnson's own personal role in the kidnapping and murder. As we quoted earlier, Burkmire told the jurors that, even though Johnson claimed to have been a more or less passive observer of events, Burkmire believed that Johnson actually "took an equal part" in forcing Houngues into the trunk of the Kia, and that Johnson was "minimizing his role [in] the actual physical act at the scene".

Patterson's trial attorney did not object to Burkmire's answer — apparently because Burkmire stayed within the confines of what the defense attorney had defined as acceptable testimony. As we noted earlier in this opinion, Burkmire's partner, Investigator Hunyor, gave similar testimony earlier in the trial, and Patterson's attorney likewise had no objection to Hunyor's testimony.

We are not saying that the jury's question and Burkmire's answer were unobjectionable. This Court has repeatedly noted and applied the rule that witnesses should not be allowed to give their personal opinion regarding the truthfulness (or untruthfulness) of another person's testimony. Enforcement of this rule is especially important when a police officer is asked to comment on another witness's credibility, because the jurors "may surmise that the police are privy to more facts than have been presented in court", and because jurors "may be improperly swayed by the opinion of a witness who is presented as an experienced criminal investigator."

See Flynn v. State, 847 P.2d 1073, 1075-76 (Alaska App. 1993); Thompson v. State, 769 P.2d 997, 1003-04 (Alaska App. 1989) (citing cases); Cox v. State, 805 P.2d 374, 376-78 (Alaska App. 1991).

Sakeagak v. State, 952 P.2d 278, 282 (Alaska App. 1998).

But although a valid objection might have been made to the jury's question, the defense attorney explicitly informed Judge Smith that the question was acceptable to the defense. And although a valid objection might have been made to certain aspects of Burkmire's answer, the record strongly suggests that the defense attorney knowingly chose not to raise an objection. This precludes a claim of plain error on appeal.

Our conclusion that Patterson has failed to show plain error is also founded on a second, independent ground. Under Alaska law, a litigant who raises a claim of plain error must show that the error was so manifestly prejudicial to the fairness of the lower court proceedings that failure to correct the error would perpetuate manifest injustice. In Patterson's case, the improper aspects of Investigator Burkmire's answer to the jury's question were not manifestly prejudicial to the fairness of Patterson's trial.

Vann v. State, 229 P.3d 197, 213 (Alaska App. 2010); Hosier v. State, 1 P.3d 107, 112 (Alaska App. 2000); Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).

In his answer, Investigator Burkmire did not assert or even suggest that his evaluation of Sherman Johnson's credibility was based on information that had not been presented at Patterson's trial. Instead, Burkmire carefully explained that his assessment of Johnson's credibility was based on the fact that the troopers' investigation of the case had independently verified or corroborated significant portions of Johnson's account. The jurors had already heard the testimony about the independent investigative findings that Burkmire was referring to. Thus, the jurors could independently assess whether Burkmire's conclusion was justified.

In one portion of Burkmire's answer ( i.e., in one portion of his assessment of Johnson's credibility), Burkmire did stray from the evidence already presented at Patterson's trial. But this was the portion where Burkmire suggested that certain aspects of Johnson's account should not be trusted. Burkmire told the jurors that, based on human nature — and, at least implicitly, based on Burkmire's own experience as a criminal investigator — Burkmire believed that Johnson was probably misrepresenting the facts when he minimized his own personal involvement in the kidnapping and murder.

Although this aspect of Burkmire's answer was obviously based on his own surmise, one can easily understand why Patterson's attorney would not object to this portion of Burkmire's testimony: it favored the defense.

For these reasons, we conclude that even though certain aspects of Investigator Burkmire's answer were objectionable, this error did not manifestly prejudice the fairness of Patterson's trial — and, thus, the error did not constitute "plain error".

Patterson's claim that the trial judge committed plain error by allowing witness James Freitas to testify that Patterson was "crazy" or a bad influence

As explained earlier in this opinion, James Freitas was an associate of Mario Page and Tommie Patterson in the drug trade. Freitas brought large quantities of drugs into Alaska so that Page could sell the drugs.

Freitas was also a close friend of Page's. Freitas testified that he loved Page like a son, and that Page reciprocated this affection, calling Freitas "Dad". Freitas also had known Patterson for a long time. Because of his long association with Page and Patterson, Freitas did not want to testify against them; he intended to plead the Fifth Amendment. But apparently the State gave Freitas immunity against his wishes and forced him to testify.

During Freitas's testimony, the prosecutor asked him if he thought that Patterson "had an influence on [Page]". Freitas answered, "Oh, yeah. I mean, it was — I mean, . . . he's a crazy guy, bro."

(Freitas spoke a kind of drug culture patois; when he said "bro" — i.e., "brother" — he was referring to the prosecutor.)

The prosecutor followed up with the question, "[Patterson] is a crazy guy?" Freitas answered, "Yeah, yeah; he's crazy."

As shown by the following testimony, Freitas apparently had the same impression of Mario Page:

Freitas: Mario [Page] wasn't afraid of nobody. I mean, they — he was crazy, bro. He'd — I mean, you can ask him, bro. Crazy motherfu — crazy, bro.

Patterson's attorney did not object to any of this testimony.

Later on in Freitas's testimony, he described how Page, Patterson, and Gray came to his house after the murder. At that time, Patterson told Freitas that he had "emptied a clip in a guy".

Later in his testimony, Freitas then clarified that what Patterson had actually said was that he "emptied a clip" into a guy after Kira Gray had already shot him. When Freitas speculated that the man must have been dead before Patterson shot him, the prosecutor challenged that assumption. In the ensuing colloquy, Freitas again referred to Patterson as being "crazy":

Prosecutor: Did Tommie [Patterson] tell you that he shot someone?

Freitas: He said he emptied a clip in a guy after Kira shot him. So I — I'm assuming [this guy] was dead already.

Prosecutor: Okay. But you don't know [that]?

Freitas: I wasn't there. I wasn't there. I mean . . .

Prosecutor: Okay.

Freitas: . . . I don't know. I know I — dude, I know Tommie's crazy. I know, dude, — whatever.

Prosecutor: [Do you mean that] you know he's capable of that? That's what you think?

Freitas: Oh, yeah. I wouldn't even think. [ sic]

Again, Patterson's attorney did not object to this testimony.

After the two attorneys were done examining Freitas, Judge Smith held a bench conference to discuss the jurors' proposed questions for Freitas. During that screening conference, the following exchange occurred between Judge Smith and Patterson's attorney:

The Court: (Indiscernible) Okay. I assume you're pulling out the ones you have issues with?

Defense Attorney: I was looking for the one (indiscernible).

The Court: [reading the juror's question] "When you say [Patterson] was crazy, what prompts that scenario?" [ sic: "that description"]

Defense Attorney: [That question is] going to call for all kinds of [Evidence Rule] 404 stuff — all kinds of prior bad acts, so . . .

The Court: I agree.

Defense Attorney: I could've stopped [Freitas] . . . from saying he was "crazy" to begin with, but I didn't catch it in time, so. . . . [Apparently, at this point, the defense attorney stopped speaking.]

The Court: Okay. Others? [The discussion then moved to other proposed questions.]

Thus, Patterson's attorney successfully objected to the proposed jury question, but the defense attorney did not ask Judge Smith for any other remedy (such as striking the testimony that had already been given, or giving the jury a curative instruction).

At the end of Patterson's trial, during the prosecutor's summation to the jury, he asserted that both Patterson and Freitas were "crazy":

Prosecutor: Tommie Patterson: What do we know about Tommie Patterson? Is he part of the group? Of course he is. He's a drug dealer. He's a thug. He's an enforcer. He carries guns; he's known to carry guns, he's known to wear a bullet proof vest. He's crazy.

. . .

James Freitas: He's crazy. Was he part of that group? Of course he was. He's part of that group. Where do you think that money came from? A legitimate job? No one testified that Mario Page or Tommie Patterson had a legitimate job. They didn't. They went to California to buy drugs to sell on the streets in Anchorage, and that's how they got that money. [James Freitas] is part of that. He's part of that group. The drug dealer with the money.

. . .

James Freitas knew that Mario was upset about the missing drugs, knew that Tommie went to California with them, was with them in California. Tommie admitted [that] he emptied a clip into Terrell [Houngues].

[Freitas] said that Tommie was a bad influence on Mario. It's kind of shocking that someone could be a bad influence on a drug dealer, but he said that Tommie Patterson was a bad influence on Mario. Tommie's crazy.

The defense attorney did not object to this argument.

On appeal, Patterson asserts that it was plain error for Judge Smith to allow James Freitas to give testimony in which he characterized Patterson as "crazy", and that it was also plain error for Judge Smith to let the prosecutor refer to Freitas's characterization of Patterson during the State's summation to the jury.

It is unclear whether the prosecutor purposely elicited Freitas's comment that Patterson was "crazy". Moreover, as we explained above, the defense attorney recognized that this testimony was inadmissible, and she had a clear opportunity to seek relief when this subject came up during the screening of the proposed jury questions for Freitas — but she did not.

Be that as it may, it is clear that, during the State's summation, the prosecutor used Freitas's testimony for the purpose forbidden by Alaska Evidence Rule 404(a). That is, the prosecutor urged the jurors to view Freitas's testimony as proof of Patterson's underlying character — i.e., proof that Patterson was indeed crazily violent — and he then urged the jurors to draw the inference that Patterson acted true to character during the episode being litigated.

The question is whether any of this constitutes plain error — an error so obvious and so egregious that Judge Smith should have taken it upon himself to intervene, even though the defense attorney made no objection and sought no relief.

While it may have been obvious that the prosecutor was attempting to use this evidence in contravention of Evidence Rule 404(a), Judge Smith also knew (from the screening conference on the proposed jury questions) that the defense attorney understood the ban on character evidence, and that the defense attorney was aware of the Evidence Rule 404 problem posed by Freitas's testimony that Patterson was "crazy". Given all this, a competent trial judge might reasonably decide to let the defense attorney try her own case, and to let matters proceed if the defense attorney did not choose to object.

Moreover, as we explained earlier, one of the elements of a claim of plain error is that the error must be so manifestly prejudicial to the fairness of the lower court proceedings that failure to correct the error would perpetuate manifest injustice. This simply is not the case here. The State's evidence against Patterson was lengthy, detailed, and strong. Freitas's challenged testimony and the prosecutor's challenged argument occupied mere moments of a six-day trial. We are not convinced that this error made any difference to the outcome of the case, much less that this error caused manifest injustice. Conclusion

The judgement of the superior court is AFFIRMED.


Summaries of

Patterson v. State

Court of Appeals of Alaska
Jun 22, 2011
Court of Appeals No. A-10220 (Alaska Ct. App. Jun. 22, 2011)
Case details for

Patterson v. State

Case Details

Full title:TOMMIE PATTERSON, Appellant, v. STATE OF ALASKA, Appellee

Court:Court of Appeals of Alaska

Date published: Jun 22, 2011

Citations

Court of Appeals No. A-10220 (Alaska Ct. App. Jun. 22, 2011)