Opinion
A-13473
09-21-2022
JESSE DEAN PAYNE, Appellant, v. STATE OF ALASKA, Appellee.
Courtney Lewis (opening brief), and Renee McFarland (reply brief), Assistant Public Defenders, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3AN-17-06153 CR Anchorage, Erin B. Marston, Judge.
Courtney Lewis (opening brief), and Renee McFarland (reply brief), Assistant Public Defenders, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
HARBISON JUDGE
Jesse Dean Payne was convicted, following a jury trial, of one count of third-degree assault for recklessly injuring his girlfriend after having been previously convicted of assault two or more times in the preceding ten years. He was also convicted of two counts of unlawful contact based on phone calls he made from the jail.
AS 11.41.220(a)(5).
AS 11.56.750(a)(1)(A).
Payne raises two issues on appeal. First, he argues that the superior court erred when it allowed the State to present evidence of his previous assaults against another domestic partner when this evidence did not conform to the State's original proffer. Second, he claims that the prosecutor made improper statements during closing argument.
Payne failed to raise either of these issues in the superior court, so he must show plain error. For the reasons explained in this decision, we reject Payne's claims of error and affirm the judgment of the superior court.
Background facts
In August 2017, Jesse Payne and his girlfriend, Nyeta Higgins, were living in a house they shared with Shep Woodley. One day, Woodley came home to find Payne visibly angry and mumbling to himself. Higgins was upstairs taking a shower. Payne went upstairs to the bathroom, kicked the door open, and went inside. Woodley heard Higgins cry, "I didn't do it, Jesse. I didn't do it. I didn't do nothing." Woodley then heard a "pop upside the head," like someone being hit on the side of the face.
Payne ran out of the bathroom yelling "call the police" and fled out the front door of the house. Higgins came out of the bathroom after Payne. Higgins was crying, her lip was swollen, and she had blood all over her face. Woodley called the police.
Based on this incident, and Payne's prior assault convictions, the State charged Payne with one count of recidivist third-degree assault. When Payne subsequently attempted to, and eventually did, make contact with Higgins while he was being held in pretrial detention, the State charged him with two counts of unlawful contact in violation of a court order.
Higgins did not testify at trial, so the State relied on the testimony of Woodley and the responding officers, as well as photographs of Higgins's injuries taken shortly after the assault. A jury found Payne guilty of all three charges.
Payne now appeals.
Payne's argument that the court erred when it allowed the State to present evidence of his prior assaults
Prior to trial, the State filed amotion seeking to introduce evidence of prior assaults Payne committed against his former girlfriend, Jessica Rambeau, that were motivated by jealousy. The superior court ruled that this evidence was admissible under Alaska Evidence Rules 404(b)(4) and 403, but noted that the State should not mention certain aspects of the assaults, including that children were present during one of them.
See Bingaman v. State, 76 P.3d 398, 415 (Alaska App. 2003) (setting out six factors for courts to consider in evaluating whether the prejudicial effect of evidence admissible under Evidence Rule 404(b)(4) outweighs the evidence's probative value).
On appeal, Payne argues that the evidence ultimately presented did not conform to the State's original proffer or the superior court's preliminary ruling because: (1) an officer who testified about one of the prior assaults mentioned Rambeau's children; and (2) the State did not introduce evidence establishing that Payne was motivated by jealousy during the prior assaults.
Payne did not object to any of this testimony at the time, and he therefore must show plain error. He has failed to do so.
Payne argues that he preserved his objection by raising this issue in a motion for a new trial. But a post-trial motion is not an adequate substitute for a contemporaneous objection. See Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985) ("Given Potts' failure to object at trial... no abuse of discretion will be found in the denial of his post-trial motion, absent plain error."). Payne also argues that he preserved this issue because the arguments he made when discussing the admissibility of Payne's prior assaults "established his concern that the circumstances surrounding the prior assaults were critical to their admissibility." But we have previously rejected the notion that merely raising a "concern" is sufficient to preserve an issue for appeal. Pierce v. State, 261 P.3d 428,432 (Alaska App. 2011). We instead have required litigants to demonstrate that they gave the trial judge reasonable notice of their objection, and gave the judge a reasonable opportunity to respond to the objection. Id. at 433. We also have recognized that a court's pretrial decision to admit prior-act evidence is distinct from a ruling on the nature and scope of the evidence that may be admitted. For this reason, the defendant bears the burden of separately challenging the scope of the evidence and any improper use of the evidence. See Kasgnoc v. State, 448 P.3d 883, 889 (Alaska App. 2019) (citing Conley v. Alaska Commc 'ns Sys. Holdings Inc., 323 P.3d 1131, 1138-39 (Alaska 2014) (recognizing that a decision to admit prior-act evidence does not necessarily mean that the use of the evidence at trial is unfettered)).
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011) ("Plain error is an error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial").
First, Payne argues that the jury should not have heard that Rambeau's children were present at the time of the assault. But the jury did not hear evidence of this fact. Rather, the officer testified that Rambeau had gathered her children after the assault, that they were in the car with her when he interviewed her, and that the argument between Payne and Rambeau had been about the children. The officer never testified that the children were present when the assault occurred. Thus, the factual predicate for Payne's argument is not supported by the record.
Second, Payne argues that it was error to admit the evidence of his prior assaults against Rambeau absent testimony that those assaults were motivated by jealousy. Payne's argument on this point is based on the fact that, according to Payne, the superior court ruled at the beginning of trial that evidence of the prior assaults was only admissible if accompanied by evidence that Payne was motivated by jealousy.
Payne's reading of the superior court's initial ruling is questionable. Although the superior court's original determination - that the assaults against Rambeau were "very similar" to the assault against Higgins - was based in part on the fact that both were motivated by jealousy, the superior court never indicated that it would refuse to admit evidence of the prior assaults absent evidence of Payne's motive.
But even if the superior court had originally made such a ruling, the record shows that the superior court ultimately concluded, after hearing all of the evidence, that the prior assaults were admissible even without evidence of Payne's motive. After the jury returned its verdict, Payne filed a motion for a new trial raising the argument he now raises on appeal - that it was error to introduce the prior assaults absent evidence of Payne's motivation. The superior court rejected that argument, concluding that the prior bad acts evidence, as introduced at trial, conformed with Evidence Rules 403 and 404(b)(4). We see no abuse of discretion in that ruling - indeed, Payne does not actually challenge that ruling on appeal, instead focusing exclusively on the court's pretrial, preliminary ruling. We therefore reject Payne's challenge to the admission of evidence of his prior assaults against Rambeau.
Payne's argument that the prosecutor's improper closing statements require reversal
Payne also argues that certain statements made by the prosecutor during closing argument were improper and require us to reverse his conviction. Because Payne did not object to these statements at the time, he must show plain error. Here is the relevant portion of the prosecutor's closing argument:
Payne argues that he preserved his obj ection by raising this issue in a motion for a new trial. But as we have previously explained, a post-trial motion is not an adequate substitute for a contemporaneous objection. See Potts, 712 P.2d at 390.
[T]he State has an obligation and a duty to protect this community. I'm asking you to review the evidence. I don't want you to speculate. I want you to review the evidence and realize that, beyond a reasonable doubt, this assault occurred. And I'm asking you to send a message to Mr. Payne that we don't condone intimate partner violence and that Mr. Payne can't get away with it. He can't get away with hitting another woman. And that's why I'm asking you to return the verdict that the truth requires and that justice demands. And that's guilty on all counts.
Payne takes issue with two portions of this statement: (1) the prosecutor's request that the jury "send a message to Mr. Payne that we don't condone intimate partner violence"; and (2) the prosecutor's statement that the jury cannot let Payne "get away with hitting another woman." We agree with Payne that both statements were improper, but we conclude that they do not rise to the level of plain error.
Alaska case law and the American Bar Association's Standards for Criminal Justice restrict a prosecutor's closing argument to "the evidence presented at trial and the inferences that may fairly be drawn therefrom." Prosecutors are prohibited from "expressing a personal belief as to the evidence, from making appeals calculated to inflame passions and prejudices of the jury, and from advancing arguments based on the consequences of the verdict or on issues other than the guilt or innocence of the accused." "The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law."
Patterson v. State, 141 P.2d 535,538 (Alaska App. 1987) (citing ABA Standards for Criminal Justice § 3-5.8 (2d ed. 1982)); see also ABA Standards for CriminalJustice § 3-6.8 (4th ed. 2017).
Patterson, 141 P.2d at 538.
Noel v. State, 754 P.2d 280, 282 (Alaska App. 1988) (quoting ABA Standards for Criminal Justice § 3-5.8(d) (2d ed. 1982)).
With respect to the prosecutor's request that the jury convict Payne to "send a message . . . that we don't condone intimate partner violence," we wrote in Hess v. State that "[a] prosecutor should not . . . urge a jury to convict in order to 'send a message.'" Such statements are improper under the general rule that prosecutors are prohibited "from advancing arguments based on the consequences of the verdict or on issues other than the guilt or innocence of the accused," and they have been criticized by many courts.
Hess v. State, 382 P.3d 1183,1185 (Alaska App. 2016), rev'd on other grounds, 435 P.3d 876 (Alaska 2018).
Patterson, 747 P.2d at 538.
6 Wayne R. LaFave et al, Criminal Procedure § 24.7(e), at 609 n.97 (4th ed. 2015) (collecting cases); see also, e.g., United States v. Sanchez, 659 F.3d 1252, 1256 (9th Cir. 2011) (improper for prosecutor to ask in closing, "[W]hy don't we send a memo to all drug traffickers"); Hines v. State, 425 So.2d 589, 591 (Fla. Dist. App. 1982) (improper for prosecutor to urge the jury "to tell the community that you are not going to tolerate the violence that took place").
We nevertheless conclude that the prosecutor's language, while improper, was harmless beyond a reasonable doubt. The thrust of the prosecutor's argument was that the jury should send a message to Payne that he is guilty and that it does not condone his conduct, rather than that the jury should send a message to the community or to other potential criminals. We acknowledge that this type of argument is still improper; a jury should only convict a defendant because the State has proven every element of the crime beyond a reasonable doubt, not because it wants to send a message to the defendant, regardless of what that message is. However, a request that the jury send a message to the defendant that he is guilty - as opposed to a message to other potential criminals with the goal of deterring future conduct-is much less likely to cause the jury to decide the case on improper grounds, especially when, as was the case here, the prosecutor explicitly instructed the jury "to review the evidence and realize that, beyond a reasonable doubt, this assault occurred."
Payne argues that the prosecutor's remarks affected his constitutional right to a fair trial by asking the jury to decide the verdict on issues other than the evidence submitted. We need not decide whether the prosecutor's remarks rose to the level of constitutional error because we hold that the State has met the higher burden of showing that the error was harmless beyond a reasonable doubt. Adams v. State, 261 P.3d 758, 773 (Alaska 2011); see also Hess v. State, 435 P.3d 876, 882 n.34 (Alaska 2018) (declining to reach the question of whether a prosecutor's improper argument was a constitutional violation).
Payne also objects to the portion of the prosecutor's argument urging the jury to send a message that "he can't get away with hitting another woman." While this statement was also improper, we similarly conclude that the court's failure to intervene in the absence of an objection was harmless.
The prosecutor's statements were "brief and passing," and the prosecutor otherwise urged the jurors to review the evidence carefully and to only return a guilty verdict if they concluded that the State had proven every element of the offense beyond a reasonable doubt. And the evidence against Payne was strong. Although the victim did not testify at trial, the jury heard uncontroverted testimony from Payne's roommate that he heard Payne go upstairs, heard Higgins scream "I didn't do it," and then heard a "pop." Photographs of Higgins after the event showed considerable injuries. The jury also heard (properly, as we have held) that Payne had a history of physically abusing another domestic partner. We therefore conclude that the court's failure to sua sponte intervene in the prosecutor's closing argument did not rise to the level of plain error.
See/few, 435 P.3d at 882.
Conclusion
The judgment of the superior court is AFFIRMED.