Opinion
Court of Appeals No. A-9620.
July 5, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-05-3752 CR.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Anthony Peralta was convicted of second-degree robbery, first-degree vehicle theft, and first-degree eluding a peace officer after taking Carmen Ducasse's SUV and leading police on a lengthy vehicle chase through the Mat-Su Valley. At trial, Peralta conceded that he was guilty of the theft and eluding charges. But he argued that he had not used or threatened force in taking the SUV and was therefore not guilty of robbery. The jury rejected Peralta's defense and convicted him of all three charges.
On appeal, Peralta argues that Superior Court Judge Philip R. Volland erred in allowing the State to present evidence that the police were attempting to contact Peralta because Peralta was a suspect in a shooting which had taken place at the Dimond Center a few days earlier. We affirm Judge Volland's ruling that the evidence was admissible to show Peralta's state of mind and potential motive to forcibly seize Ducasse's vehicle.
Peralta also argues that Judge Volland abused his discretion in allowing the prosecutor to exceed the scope of cross-examination by asking a reluctant witness about statements Peralta had made to her prior to trial in order to influence the witness's testimony. We conclude that Judge Volland did not abuse his discretion by allowing the State to exceed the scope of cross-examination and that the evidence about the incriminating statements was admissible.
Peralta also argues that Judge Volland erred in denying his motion for judgment of acquittal on the robbery charge. Peralta argues that the State presented no evidence that Peralta used the force necessary to establish robbery. But we conclude that a reasonable jury could have found Peralta guilty of the robbery charge and affirm Judge Volland's ruling.
Factual and procedural background
A shooting at the Dimond Center shopping mall in Anchorage on March 1, 2005, left one person dead. Anchorage Police quickly identified Anthony Peralta as one of the suspects in the shooting. Police spent the next few days attempting to locate Peralta and several other people they wanted to talk to about the shooting. However, police were only able to find one of these individuals in Anchorage. Police then received information that Peralta and the other people they wanted to question were possibly in either one of two locations in Wasilla. One of these places was Carmen Ducasse's home. Acting on this information, Alaska Fugitive Task Force members Alaska State Trooper Victor Aye and Deputy United States Marshal Kevin Guinn interviewed Ducasse's neighbors, who recognized photos of Peralta and the other individuals. They indicated that they had seen them at Ducasse's house.
Based on the discussion with the neighbors, Trooper Aye and Marshal Guinn believed that, since it was mid-week, Ducasse was outside the home working, and her children were at school; consequently, they did not expect anyone to be inside the house. However, as Trooper Aye and Marshal Guinn began to back Marshal Guinn's unmarked vehicle out of the neighbor's driveway, Trooper Aye noticed that there was movement behind the lace curtains drawn across the windows of Ducasse's home. As Trooper Aye and Marshal Guinn drove by Ducasse's home, Trooper Aye observed more movement indicating that someone was perhaps shutting doors inside the home.
Trooper Aye and Marshal Guinn notified the other members of the Task Force — who had been at another location in Wasilla searching for Peralta — of what they had seen. Within a few minutes, the other team, consisting of Anchorage Police Officer Paul Morino and Deputy United States Marshal John Olson, pulled up to the residence next to the Ducasse home. All of the Task Force members were wearing civilian clothing so that they would not call attention to themselves and would fit in with the surroundings. (However, prior to approaching Ducasse's house, Marshal Olson donned a heavy jacket with blaze orange "police" markings; Marshal Guinn put on a vest marked "police" and "U.S. Marshal.") At this point, Trooper Aye and Marshal Guinn retrieved an AR-15 assault rifle and a shotgun and walked up to the side of the Ducasse residence. Trooper Aye posted himself at the corner near the front of the garage, while Marshal Guinn watched the back of the house. Officer Morino stayed near the vehicles and radioed for marked units to respond to the Ducasse residence. The officers planned to wait outside the house until the marked police vehicles arrived.
Trooper Aye and Marshal Guinn then heard "hurried movements" inside the home. Trooper Aye heard people running around, slamming doors, and making other noise inside the house. Marshal Olson then came toward the house to provide back-up for Trooper Aye and Marshal Guinn. As Marshal Olson walked toward them, Trooper Aye heard a door open inside the garage, and heard people talking. Trooper Aye then heard a car start and saw the garage door open. Because Trooper Aye was close to the garage door, he immediately saw two cars inside the garage: a dark sedan and a black Lincoln Navigator SUV with tinted windows. The SUV started backing out of the garage. The officers began yelling repeatedly, identifying themselves as police and commanding the unidentified driver of the vehicle to stop. Trooper Aye — wearing a police badge around his neck — pointed his AR-15 rifle at the SUV and told the driver to stop the car and get out. In the meantime, Marshal Olson banged repeatedly on the rear passenger-side window with his hand. The SUV then stopped, and the driver's side door opened.
When the door opened, Trooper Aye observed a woman (later identified as Carmen Ducasse) come out of the SUV "really rapidly, really fast." Trooper Aye and Marshal Guinn thought she was pushed out of the vehicle, because she came out head and shoulders first. Ducasse had a "frightened" look on her face. Ducasse wobbled as she got out of the SUV, and Trooper Aye — standing in approximately the same spot that Ducasse landed after she exited the vehicle — attempted to help her regain her balance. As Trooper Aye, who had let his rifle drop to his side, helped Ducasse regain her balance, he heard yelling from inside the SUV, and saw Peralta leave the back seat and climb into the front seat.
Trooper Aye reached for the car door in order to keep it open, while Peralta attempted to close it. Due to his concern for Ducasse's safety, Trooper Aye decided to abandon his efforts to grab the door; as he did so, he saw that Peralta was putting the vehicle into reverse. While the officers yelled for him to stop the vehicle, Peralta backed the SUV — with the tires squealing — out of the driveway on to Bideford Street, at which point the SUV turned west. Trooper Aye, Marshal Guinn, and Officer Morino initially chased the SUV on foot, but quickly gave up. Officer Morino and Marshal Guinn then jumped into Officer Morino's truck and started pursuing the SUV. The officers put out an announcement on the police radio that the SUV was fleeing. Officer Morino and Marshal Guinn quickly lost sight of the SUV.
Numerous state troopers responded to the dispatch report. One of the responding troopers, Marc Hendrickson, encountered the SUV traveling northbound on the Glenn Highway, going about 45 miles per hour. When Trooper Hendrickson turned around to get the SUV's license plate number, it sped up to about 90 miles per hour and started passing vehicles in the oncoming lane in no-passing zones. Numerous vehicles had to take evasive action in order to avoid getting hit. Trooper Hendrickson pursued the SUV through Palmer, and eventually out onto the Old Glenn Highway. Trooper Phillip Duce joined the chase at this point, and Trooper Duce and Trooper Hendrickson followed the SUV until it passed in between two vehicles crossing the Matanuska River bridge, at which point the pursuit was called off for safety reasons.
Although the pursuit was temporarily called off, Troopers Duce and Hendrickson continued down the Old Glenn Highway without their lights and sirens activated. A few miles later, Trooper Hendrickson saw the SUV again, with Trooper Josh Heinbaugh in pursuit. Troopers Duce and Hendrickson reactivated their lights and sirens, and joined the chase. In the meantime, Wasilla police department units had deployed two sets of spike or "stinger" strips across the highway ahead of Trooper Hendrickson and the other troopers, in order to deflate the SUV's tires when it passed over them. The SUV hit both sets of spike strips traveling about 90 miles per hour. After hitting the spike strips, the SUV continued onto the southbound on-ramp to the Glenn Highway, gradually slowing down as the tires shredded off the rims. The SUV continued down the highway for about another quarter of a mile before it finally came to a stop after the tires shredded to the rim. The troopers ordered everyone out of the vehicle. In all, seven people were inside the SUV: six adults and one infant. Trooper Hendrickson had pursued the SUV for approximately twenty-one miles before the chase ended.
Peralta was indicted on one count of robbery in the second degree, one count of vehicle theft in the first degree, and one count of eluding a peace officer in the first degree.
AS 11.41.510(a).
AS 11.46.360(a)(1).
AS 28.35.182(a)(1). This statute makes reckless driving, AS 28.35.400, an element of first-degree failure to stop at the direction of a peace officer.
Peralta's eight-day jury trial began on October 24, 2005. During opening statements, Peralta's attorney told the jury to convict Peralta on the eluding and theft charges. Peralta only contested the robbery charge. The jury found Peralta guilty of all three charges.
Why we conclude Judge Volland did not abuse his discretion in admitting evidence that Peralta was a suspect in the Dimond Center shooting
Peralta first contends that Judge Volland erred in allowing the jury to hear testimony from Anchorage Police Officer Timothy Landeis that Peralta was a suspect in the Dimond Center shooting. Peralta argues that evidence of his alleged involvement in the shooting was improper evidence of other crimes under Alaska Evidence Rule 404(b). Peralta also argues that, even if the evidence might have provided a motive for Peralta to have eluded the police, he conceded his guilt to that charge. He argues that the evidence that he was a suspect in the Dimond Center shooting was not relevant to establish the robbery charge. But the evidence was proper under Rule 404(b) because it was relevant to show Peralta's state of mind and his potential motive to seize Ducasse's vehicle at the time he attempted to elude the police. And all of Peralta's actions in attempting to get away from the police, including his taking of the SUV, were inextricably intertwined.
The record shows that Judge Volland took reasonable steps to limit any prejudice which would flow from the shooting evidence. In his pre-trial ruling, Judge Volland determined that potential jurors who had concerns or had been unduly exposed to stories about the Dimond Center shooting would be excluded from the jury. Apparently this was done, as Peralta has not provided a transcript of the jury voir dire on appeal and has not claimed that the voir dire showed any jurors would be unduly prejudiced by information concerning the shooting at the Dimond Center. Judge Volland also gave an instruction that explained to the jury that the Dimond Center shooting evidence could not be considered as character evidence, and could only be considered "for the limited purpose of deciding if it tends to show he had a motive for committing any of the crimes charged in this case."
See Bertilson v. State, 64 P.3d 180, 185 (Alaska App. 2003) (holding that an appellant waives a contention on appeal if a transcript of the relevant trial proceeding is not designated for review).
We conclude that Judge Volland did not abuse his discretion in concluding that the probative value of the evidence that the police were looking for Peralta in order to question him as a suspect in the Dimond Center shooting outweighed the danger of unfair prejudice. Judge Volland could properly conclude that the evidence was important to show the strength of Peralta's motive to attempt to avoid contact with the police, including the use of force upon Ducasse. The record shows that Judge Volland attempted to reduce the danger of prejudice to Peralta by limiting the evidence that the State was permitted to introduce.
Peralta also argues that, even if the evidence about Peralta's possible involvement in the Dimond Center shooting was admissible, the prosecutor improperly argued the evidence. In his closing argument, Peralta argued that his taking of the car and the police response were the result of panic. In response, the prosecutor argued "You mean, he panicked when he came to Wasilla? He panicked when he and his five friends were hiding out in Wasilla?" Judge Volland overruled Peralta's objection to the prosecutor's statement.
Judge Volland could properly determine that the prosecutor's argument was a permissible inference from the evidence. The evidence presented at trial supported an inference that Peralta and his companions had gone to Wasilla for several days to avoid police questioning about the shooting at the Dimond Center, and that Peralta's crimes were motivated by his desire to avoid the police.
Why we conclude that Judge Volland did not abuse his discretion in allowing the prosecutor to exceed the scope of cross-examination by questioning Ducasse about Peralta's attempts to influence her testimony
On direct examination, Carmen Ducasse testified that she had been pushed out of her SUV by the person who ended up driving it. But she claimed that she did not know who this person was. On cross-examination, she again stated that she did not know who pushed her out of the car. On re-direct examination of Ducasse, the State sought to introduce evidence that Peralta had asked Ducasse to tell his lawyer that she did not know who pushed her out of the car. Peralta objected on the ground that the evidence was an inadmissible prior bad act and that the proposed testimony was beyond the scope of Ducasse's testimony on cross-examination. Judge Volland allowed the testimony.
During the re-direct examination, the State asked Ducasse whether she recalled telling Detective Rodney Ryan that Peralta told her to say that she did not know who pushed her from her car. Ducasse repeated that she did not see who pushed her. But Ducasse conceded that she did remember responding to Peralta's request by telling him that she could not testify as he wished because other people had seen her pushed from the car. Later, the State called Detective Ryan, who testified about his interview with Ducasse. According to Detective Ryan, Ducasse stated that Peralta had asked her to say that he was not the one who pushed her out of the SUV, and that Ducasse told Peralta that she could not say that because other people had seen him push her.
Peralta first claims that Judge Volland abused his discretion in allowing the State to present evidence on re-direct examination that was beyond the scope of cross-examination. But, under Alaska Evidence Rule 611, a court has broad discretion to vary the order of proof. We fail to see how Peralta was prejudiced by the court allowing the State to open up a new area of inquiry during its examination of Ducasse. The court allowed Peralta the opportunity to fully cross-examine Ducasse after the State introduced this evidence on re-direct examination. Furthermore, the evidence that Peralta attempted to influence Ducasse's testimony was relevant to show his consciousness of guilt and Ducasse's bias — i.e., that she had been pressured to testify that she did not know who pushed her out of the car. Judge Volland did not abuse his discretion in finding that the evidence was relevant for the jury to evaluate Ducasse's testimony and was not unduly prejudicial.
See Garibay v. State, 658 P.2d 1350, 1356 (Alaska App. 1983) (stating that "[e]vidence of tampering with a witness is generally admissible to show guilt of the underlying crime, if the evidence directly connects the accused to the acts of tampering"); United States v. Collins, 90 F.3d 1420, 1428 (9th Cir. 1996) (holding that "attempts to induce witnesses to lie is indicative of consciousness of guilt and may be placed before the jury").
Why we conclude that Judge Volland did not err in denying Peralta's motion for a judgment of acquittal on the robbery charge
Under the Alaska statutes
A person commits the crime of robbery in the second degree if, in the course of taking or attempting to take property from the immediate presence and control of another, the person uses or threatens the immediate use of force upon any person with intent to prevent or overcome resistance to the taking of the property or the retention of the property after taking[.]
AS 11.41.510(a)(1).
Peralta argues that the facts of this case support a theft of Ducasse's vehicle, but not a robbery. Citing Butts v. State, Peralta analogizes the facts of this case to purse-snatching or other situations where the taking happens so quickly that the victim does not have the opportunity to resist the perpetrator. In Butts, this court cited with approval Professor LaFave's observation that
53 P.3d 609 (Alaska App. 2002), abrogated on other grounds by Timothy v. State, 90 P.3d 177 (Alaska App. 2004).
[t]he great weight of authority . . . supports the view that there is not sufficient force to constitute robbery [if] . . . the thief snatches property from the owner's grasp so suddenly that the owner cannot offer any resistance to the taking. On the other hand, when the owner, aware of an impending snatching, resists it, or when the thief's first attempt . . . to separate the owner from his property [is ineffective and] a struggle . . . is necessary before the thief can get possession [of the property], there is enough to make the taking a robbery.
Butts, 53 P.3d at 612 (quoting 2 Wayne R. LaFave Austin W. Scott Jr., Substantive Criminal Law § 8.11(d)(1) at 445 (1986)) (brackets in original).
But Peralta's taking of the vehicle cannot be neatly analogized to snatching a purse; clearly, a large vehicle cannot be "snatched" from the rightful owner who is sitting behind the steering wheel in the same way that a purse or similar possession can be taken from an unsuspecting victim walking down the street. To take a vehicle in this manner — i.e., taking control of the steering wheel against the wishes of the owner — some force must be used or threatened to take possession, or to prevent the rightful property owner from retaining possession, of the vehicle. And even if minimal force is used to accomplish this goal, that is enough to constitute robbery.
See McGrew v. State, 872 P.2d 625, 626 (Alaska App. 1994).
Put another way, the question is whether Ducasse "could . . . have prevented the taking . . . if [s]he had been free to try to interfere." Peralta's actions prevented Ducasse from interfering. The trial testimony, viewed in the light most favorable to the State, establishes that after Carmen Ducasse opened the driver's side door of the SUV, Peralta pushed or shoved her out of the vehicle in order to hasten her exit. Police witnesses testified that Ducasse exited the vehicle in a manner consistent with being pushed. Trooper Aye testified that Ducasse came out of the SUV "really rapidly, really fast," and that it "looked like she was being pushed out" because "she came out headfirst," rather than legs first. He also testified that her balance was "wobbly" after she came out of the car, and that he had to physically assist her to regain her balance. Trooper Aye further testified that right about the same time that Ducasse came out of the SUV, Peralta "got out from the back seat and climbed over the front seat" into the driver's seat.
LaFave, 3 Substantive Criminal Law § 20.3(c) at 180 (2nd ed. 2003).
Marshal Guinn testified that Ducasse "came out with the shoulders out first. Normally people that swing their legs out first, they don't go tumbling down on the pavement. She came out head and shoulders first, like she was shoved. And she came out very rapidly in that manner." Marshal Guinn testified on cross-examination that "people don't get out of the car the way she came out of the car," and that although he did not actually see her get pushed or shoved, he made an "educated guess" that she was pushed out, based on the way she exited.
Ducasse testified that as she opened the door to get out, "somebody c[a]me in the back" and "push[ed her] . . . in front to th[e] police." She testified that "they pushed me because they want[ed] to go wherever it is." While she initially testified that she did not know who pushed her, she admitted on re-direct examination that she had initially told police that she thought the driver — i.e., Peralta — had pushed her. In addition, as discussed above, Ducasse testified over the defense's objection that Peralta had asked her prior to trial to "say [she] didn't know who pushed [her] from the vehicle."
The only element of the robbery statute that Peralta challenges is the taking by force element. Whether or not Ducasse intended to get out of the vehicle under her own free will when she opened the door, the evidence, viewed in the light most favorable to the State, was sufficient to prove that Peralta pushed or shoved her with the intention of preventing Ducasse from contesting or impeding his seizure of the vehicle. Ducasse testified that, at the time she was pushed out of the car, she had not given anyone permission to take the car, and if someone in the vehicle had asked for permission to drive the vehicle, she would have said "no." Because, viewing the evidence in the light most favorable to the State, Peralta used physical force to prevent Ducasse from preventing or resisting his efforts to take her vehicle, Judge Volland did not err in denying Peralta's motion for judgment of acquittal on the robbery charge.
In addition, we have previously held that, "[u]nder [AS 11.41.510], the crime of robbery is committed, not only when a defendant uses force upon the person who possesses the property, but whenever a defendant uses force upon any person with the intent to prevent or overcome anyone's resistance to the taking, or to compel any person to engage in conduct that might facilitate the taking." The evidence presented at trial showed that Trooper Aye struggled with Peralta over the door of the SUV while Peralta was taking it. In addition, the evidence at trial showed that Peralta squealed the tires of the SUV while he backed the length of the driveway in order to prevent the police from apprehending him while taking the SUV. One of the officers testified that he had to move out of the way in order to avoid getting hit by the SUV as Peralta made his escape. This evidence supported the theory that Peralta committed robbery by using force against the police with the intent to prevent or overcome their resistance to his taking or retaining the car. We conclude that Judge Volland did not err in determining that the State presented sufficient evidence for a reasonable jury to find beyond a reasonable doubt that Peralta committed robbery in the second degree.
McGrew, 872 P.2d at 626 (emphasis in original).
Id.
The judgment of the superior court is AFFIRMED.
I write separately to address a single issue: Peralta's argument that the evidence presented at his trial was not legally sufficient to establish that he committed a robbery (as opposed to a theft) when he took Ducasse's vehicle.
Peralta contends that there was no evidence that Ducasse actively resisted Peralta's efforts to take control of her vehicle. Rather, according to Peralta, Ducasse was trying to get out of her vehicle as fast as possible, and she did not fight Peralta's efforts to seize control of it. Based on this premise, Peralta asserts that the evidence was insufficient to prove robbery, because there was no evidence that Peralta overcame Ducasse by force (or the threat of force).
This argument is based on a misunderstanding of the elements of robbery as defined in AS 11.41.510(a). Under this statute, a person commits robbery if they take or attempt to take property from the immediate presence and control of another person and, in the course of this taking or attempted taking, they use force or threaten the use of force "with the intent to (1) prevent or overcome resistance to the taking of the property or the retention of the property after taking; or [with the intent to] (2) compel any person to deliver the property or engage in other conduct which might aid in the taking of the property."
This statute does not require proof that the robbery victim actively resisted or tried to actively resist the taking. Rather, the statute requires proof that the culprit used force (or threatened the use of force) with one of the listed intents: the intent to prevent resistance to the taking or retention of the property, the intent to overcome resistance to the taking or retention of the property, or the intent to compel any person to deliver the property or otherwise perform an act that might aid in the taking of the property. Thus, for example, a robbery is committed when the culprit sneaks up on the victim, strikes the victim unconscious, and takes the victim's money, without the victim ever becoming aware that a robbery was occurring.
Turning to the facts of the present case, the State was not required to prove that Ducasse actively resisted Peralta and that Peralta employed force to overcome that resistance. Rather, the State was obliged to prove that Peralta used force during the taking of Ducasse's vehicle and that Peralta used this force with the intent to prevent Ducasse from offering resistance to his efforts to seize control of the car, or with the intent to overcome any resistance that Ducasse might offer. The evidence presented at Peralta's trial was clearly sufficient to support these findings.