Opinion
A-13237
06-08-2022
CHRISTOPHER D. STRAWN, Appellant, v. STATE OF ALASKA, Appellee.
Christopher D. Strawn, in propria persona, Seward, Appellant. Eric A. Ringsmuth, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, First Judicial District Trial Court No. 1JU-15-01125 CR, Juneau, Philip M. Pallenberg and David V. George, Judges.
Christopher D. Strawn, in propria persona, Seward, Appellant.
Eric A. Ringsmuth, 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
ALLARD JUDGE
Christopher D. Strawn was convicted, following a jury trial, of first-degree murder for killing Brandon Cook with a shotgun. Strawn was also convicted of third-degree assault for placing another person, Tiffany Albertson, in fear of imminent serious physical injury by means of a dangerous instrument. Strawn's first trial (in which he was represented by appointed counsel) ended in a mistrial. Strawn then waived his right to counsel and represented himself in his second trial, at which he was convicted. Still representing himself, Strawn now appeals his convictions.
AS 11.41.100(a)(1)(A).
AS 11.41.220(a)(1)(A).
The court appointed Nicholas Polasky to serve as standby counsel.
On appeal, Strawn raises several claims. First, Strawn challenges the court's denial of his motion to suppress evidence collected by the police pursuant to multiple search warrants. Strawn argues that the trial court's failure to make a complete recording of the search warrant hearing required suppression of the evidence seized pursuant to the warrants.
Second, Strawn contends that he did not receive a fair trial because the superior court: (1) did not ensure that Strawn had proper clothing (he was wearing state-issued footwear during his trial); (2) denied Strawn's motion to disqualify his trial judge for cause because the judge had presided over Strawn's prior child custody case; (3) denied Strawn's two motions to dismiss the indictment - one alleging that the grand jury proceeding was unfair, and a second alleging that by asking the grand jury to deliberate on a "felon in possession of a concealable firearm" charge, the prosecutor improperly informed the grand jurors that Strawn had a prior felony conviction; (4) refused to grant a continuance Strawn requested to locate additional defense witnesses; (5) used an unfair jury questionnaire and a flawed voir dire process when selecting the jury; (6) refused to poll the jurors during trial to determine if they had been exposed to the media coverage of the trial proceedings; and (7) abridged Strawn's right to cross-examine the police officer who had signed the complaint in this case.
For the reasons explained here, we find no grounds for reversal. We therefore affirm the judgment of the superior court.
Factual Background
On October 20, 2015, Tiffany Albertson and her friend, Brandon Cook, were cleaning and working on Albertson's newly purchased home, a trailer. They were assisted by Strawn, whom Albertson had hired to help with the work.
Late in the evening, Strawn shot Cook in the back of the head with a shotgun at close range, killing him instantly. Prior to the shooting, Strawn was acting strangely. Among other things, he was talking about God and was asking both Albertson and Cook whether they believed in God. Strawn left the trailer a couple of times that evening, and when he returned after the second time, Albertson had an uneasy feeling about the way he was acting.
Strawn killed Cook in Albertson's presence, but because she was painting a wall and was facing away from Cook, she did not witness the shooting; instead, she only heard it. Before Strawn shot Cook, Albertson heard Strawn say, "[F]uck it, there is no God, sorry I have to do this." The sound of the shotgun startled Albertson, but at first, she thought it was fireworks. As she turned her head, she saw Cook fall backward to the floor. Albertson then addressed Strawn, screaming, "[W]hat did you do[?]" She saw "a ton of blood pouring out of [Cook]." When she looked again at Strawn, she saw that he was holding a shotgun. Strawn asked her, "[W]hat did [I] do?"
As Albertson stood there, Strawn looked at her and said, "[D]on't worry, I don't have to kill you, too." Strawn then ran out of the room. Albertson quickly got her phone, called 911, and reported that Strawn had just shot Cook with a shotgun.
Police officers responded and found Cook's body in the kitchen with a gunshot wound in the back of his head. Although Strawn had left the residence, his vehicle was still parked outside Albertson's home.
In response to police questioning, Albertson described Strawn's physical appearance, details about his dog (which had occasionally been present in her home while they worked), and the general location of Strawn's residence. The police located Strawn the next day in his nearby residence and arrested him. Albertson's description of Strawn's physical appearance, his dog, and the location of his residence matched what officers observed when they found and arrested Strawn.
The grand jury indicted Strawn on charges of first-degree murder, second-degree murder, manslaughter, criminally negligent homicide, third-degree assault, and misconduct involving a weapon. (The weapons misconduct charge was dismissed prior to the first trial.) Strawn was represented by appointed counsel in his first trial, which ended in a mistrial. Strawn then waived his right to counsel and represented himself at his second trial. At the second trial, Strawn was convicted of first-degree murder and third-degree assault. Strawn now appeals.
AS 11.41.100(a)(1)(A); AS 11.41.110(a)(1) and (2); AS 11.41.120(a)(1); AS 11.41.130; AS 11.41.220(a)(1)(A); and AS 11.61.200, respectively.
Strawn was also found guilty of second-degree murder, manslaughter, and criminally negligent homicide, but these counts merged with the first-degree murder conviction.
Strawn's challenge to the search warrant proceedings
In the early morning hours of October 21, 2015, shortly after Albertson reported Cook's murder, the police sought search warrants for Albertson's residence, Strawn's residence, Strawn's vehicle, and Strawn's person. Prior to his first trial, Strawn moved to suppress the evidence seized pursuant to these search warrants, arguing that the court system failed to make a proper record of the search warrant proceedings. The State opposed.
The police had applied for the warrants telephonically, calling District Court Judge Keith Levy at approximately 2:00 a.m. After taking testimony from Juneau Police Sergeant Dominic Branson and Juneau Police Detective Shawn Phelps, Judge Levy authorized all four search warrants, which the police executed. However, parts of the telephonic recording of the search warrant proceeding were not clear. In particular, while the judge's voice was clear in the audio recording, the information provided by the police was indiscernible.
Strawn contended that the evidence obtained pursuant to the search warrants should be suppressed because there was no official record as required by Alaska Criminal Rule 37 and Alaska Administrative Rule 35. According to Strawn, there was no official record because the audio recording failed to capture the police testimony supporting the request for the warrants. For its part, the State responded that under Nelson v. State, the record was adequate because the judge had taken contemporaneous notes of the police testimony.
Nelson v. State, 628 P.2d 884 (Alaska 1981).
Criminal Rule 37(a)(1) provides that a "search warrant authorized by law shall issue only on affidavit sworn to before a judge or magistrate judge or any person authorized to take oaths under the law of the state, or sworn testimony taken on the record and establishing the grounds for issuing the warrant." Administrative Rule 35(a) requires that all official court proceedings be electronically recorded and that these recordings "constitute the official court record."
In Nelson v. State, the Alaska Supreme Court addressed a situation in which a portion of an ex parte search warrant hearing was not recorded. The court held that the failure to record the hearing was not fatal to the search warrant because the clerk took log notes of the hearing and the accuracy of the log notes was supported by the testimony of the clerk and the police officer.
Id. at 891-93.
Id. at 893.
In the current case, the superior court held an evidentiary hearing in which both Judge Levy and Sergeant Branson testified. Judge Levy explained that when he was called after business hours or otherwise late at night, he would use a digital recorder to record the telephonic proceeding of police seeking a search warrant. After setting up his recording device, he administered the oath to the two officers - Branson and Phelps - and took their testimony regarding the warrants. Unfortunately, although the recording device recorded Judge Levy's statements and questions, the device did not adequately record the police officers' testimony. Judge Levy testified that the officers' testimony was clear and understandable to him (even though it was indiscernible on the recording). He further testified that he took detailed contemporaneous notes of the officers' testimony and, about four days later, wrote a memo explaining exactly what had happened.
Sergeant Branson testified that the judge's notes accurately recorded Branson's and Phelps's testimony when applying for the search warrants. He also confirmed that they were placed under oath before providing their testimony.
After the hearing, on the record, the superior court issued a lengthy oral ruling, finding that Judge Levy's contemporaneous and detailed notes provided an adequate record for review of the search warrant hearing. The court also found that the sworn testimony at the hearing established probable cause for the warrants. That is, the court found that there was probable cause that a crime had been committed, that Strawn had committed it, and that evidence would likely be found on Strawn's person, in his truck, and at his residence.
The superior court also ruled that Strawn had no standing to challenge a warrant issued for Albertson's residence - a ruling Strawn does not specifically challenge in this appeal.
On appeal, Strawn primarily argues that the superior court erred when it found that Judge Levy's personal notes, as opposed to log notes, were sufficient to establish an appropriate record under Nelson. Strawn contends that the difference between the log notes in Nelson and Judge Levy's personal notes is that the log notes reported both sides of the conversation. But here, as the superior court noted in its ruling, both sides of the conversation were recorded in some manner. That is, the audio recording properly recorded Judge Levy's questions, and his detailed and contemporaneous notes showed the officers' responses. Because the record supports the superior court's conclusion that there was an adequate record to review the search warrant hearing, we affirm the superior court's ruling.
Strawn's general claim that he did not receive a fair trial
Strawn argues that he did not receive a fair trial for a variety of reasons. We address each claim in turn.
Strawn's state-issued footwear
Strawn asserts that he was wearing state-issued footwear for most of his second trial and that this rendered his trial unfair. Strawn did not raise this issue until the tenth day of the eleven-day trial. When he did raise the issue, Strawn requested a mistrial, contending that the jury had been tainted because he had been wearing state-issued shoes for most of the trial. He admitted, however, that he was now wearing "proper shoes."
The superior court denied the motion for a mistrial because it was untimely and because the superior court did not remember the state-issued shoes as particularly looking like state-issued shoes; instead, they just looked like tennis shoes. The court made clear that Strawn could renew the motion if he submitted additional evidence by "bringing in the shoes, submitting photographs of the shoes that were worn," or sharing any other evidence he wanted to add. There is nothing in the record to suggest that Strawn took any additional action.
Given this record, we find no abuse of discretion in the trial court's denial of the motion for a mistrial.
Strawn's motion to disqualify the trial judge for cause
Prior to the first trial, Strawn's attorney filed a motion to disqualify the trial judge (Superior Court Judge Philip Pallenberg) from hearing Strawn's criminal case because the judge had previously presided over two domestic relations cases that involved child custody and allegations of domestic violence against Strawn. The motion argued that it would create an appearance of bias for Judge Pallenberg to preside over the criminal case; it did not allege any actual bias.
Judge Pallenberg denied the motion to disqualify, ruling that "the mere fact that [he] heard a prior case involving [Strawn], and made findings in that case, would not cause a reasonable person to question [his] impartiality." The judge also addressed the question of actual bias, even though it was not raised by the motion. Judge Pallenberg stated that he was not biased against Strawn, noting, "I do not believe, in any of the prior hearings, I expressed personal opinions about Mr. Strawn or did anything to suggest a generalized bias against him."
Pursuant to AS 22.20.020(c), Superior Court Judge David V. George reviewed Judge Pallenberg's denial of the motion to disqualify. Judge George affirmed the denial, noting that Strawn had failed to identify any aspect of Judge Pallenberg's conduct "from which a reasonable person might conclude the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." Strawn now appeals that ruling.
We agree with the superior court's conclusion that the record does not give rise to any appearance of bias. As the Alaska Supreme Court has explained, "[A] judge has no obligation to order disqualification merely because he or she presided over a related proceeding or case." Trial judges are often called upon to compartmentalize their decisions and prior decisions do not create an appearance of impropriety "unless the judge hears something or does something so prejudicial that further participation would be unfair to the parties." We note that, on appeal, Strawn asserts (for the first time) that Judge Pallenberg's rulings in Strawn's prior civil cases indicate that the judge was actually biased against him. But Strawn did not previously make this argument; indeed, he did not even raise the question of actual bias in his motion to disqualify. And he does not create a record that would give rise to a concern about either an appearance of bias or actual bias. Given these circumstances, we find no error in the denial of the motion to disqualify.
See Jerry B. v. Sally B., 377 P.3d 916, 925 (Alaska 2016).
Id. (quoting Grace L. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 329 P.3d 980, 988-89 (Alaska 2014)).
Strawn's two motions to dismiss the indictment
On appeal, Strawn argues that the trial court erred when it denied Strawn's two motions to dismiss the indictment.
Strawn's first motion to dismiss alleged that the grand jury was biased because the prosecutor had not disqualified the grand jurors who knew Albertson or who knew the police and fire department personnel involved in the case. The superior court denied the motion, finding that the prosecutor had allowed these grand jurors to remain only after they stated that they could be fair and impartial despite this knowledge.
See State v. MacDonald, 872 P.2d 627, 638 (Alaska App. 1994) ("When a juror who has been exposed to information concerning a case or is acquainted with various trial participants nevertheless professes to be capable of rendering a fair and impartial decision based on the evidence presented, no prejudice is shown.").
On appeal, Strawn renews his argument that the prosecutor improperly retained a grand juror who knew Albertson, and he further argues that the prosecutor improperly removed a grand juror who said that he knew Strawn. But the record shows that the first grand juror testified that she could be fair and impartial despite her knowledge of Albertson, while the other grand juror said that knowing Strawn would make it difficult for the grand juror to be fair. Given these circumstances, we find no abuse of discretion in the superior court's denial of the first motion to dismiss the indictment. (We note, however, that the better practice would be to remove a grand juror who was familiar with the primary eyewitness in a murder case.)
See McDonald, 872 P.2d at 638 ("The decision to deny a motion to dismiss an indictment is committed to the trial judge's discretion and will not be overturned absent an abuse of discretion."); Sheldon v. State, 796 P.2d 831, 834 (Alaska App. 1990).
After the superior court denied the first motion to dismiss the indictment, Strawn filed a second motion to dismiss the indictment. In this motion, Strawn argued that there was insufficient evidence to support the felon-in-possession charge. He also argued that he had been prejudiced by this charge because it informed the grand jury that he had a prior felony conviction. Lastly, he argued that these errors, when combined with the State's failure to disqualify the grand jurors described in his first motion to dismiss the indictment, constituted cumulative error requiring dismissal of the indictment.
The superior court granted the second motion in part and denied it in part. The court dismissed the felon-in-possession charge, agreeing with Strawn that there was insufficient evidence presented to the grand jury that the shotgun was capable of being concealed. But the court did not find that the evidence from that dismissed charge, or the alleged cumulative effect of the other issues raised by Strawn, required dismissal of the other charges. We have reviewed the grand jury proceeding, and find no error in that ruling.
On appeal, Strawn also claims that the prosecutor failed to present exculpatory evidence to the grand jury because (according to Strawn) the prosecutor knew that the swabs of his hands to test for gun shot residue were negative, but did not tell the grand jury. This argument was not included in either motion to dismiss the indictment and is therefore not preserved. See Iyapana v. State, 284 P.3d 841, 845-46 (Alaska App. 2012).
Strawn's mid-trial request for a continuance to locate witnesses
The record shows that, on the tenth day of trial, Strawn requested a continuance for a variety of reasons, including so that he could locate some defense witnesses. The State opposed any continuance and argued that Strawn had not demonstrated diligence in attempting to secure the witnesses for trial.
On appeal, Strawn asserts that he requested the continuance on the first day of trial. But there is nothing in the record to support this assertion.
The superior court indicated that it was unwilling to grant a continuance unless Strawn was able to make an offer of proof as to the identity of the witnesses, their current location, their proposed testimony, and whether they could appear in court in a day or two.
Strawn then provided the names of several people that he wanted to call as witnesses. The first was a woman identified in the police report who had reported that Strawn had been working on the trailer across the street since October 13 (i.e., Albertson's trailer), that the white truck at the trailer belonged to Strawn, that she heard a truck loudly revving its engine at about 10:00 p.m. that night, and that she had seen people coming and going from the trailer that night. Strawn stated that he had not talked to the woman but that there were "all kind[s] of inferences" that could be drawn from her report of a truck revving up. Strawn also believed that the woman would likely say that she never saw him that night, which he said would be consistent with his claim that he was not there. Strawn thought the woman was now in Minnesota.
Strawn also identified two other potential defense witnesses - a husband and wife who volunteered with the Juneau Citizen Patrol and who had responded with the police to the murder scene. Strawn asserted that the husband and wife had reported seeing a person who fit the description of the suspect and that they had tried to follow the person but lost him in the area where Strawn lives. Strawn did not provide any information about the whereabouts of these potential witnesses or if they had ever been contacted or were available to testify.
Strawn also asserted that he wanted to call a person who had been at Strawn's residence that night and who could testify to Strawn's demeanor. But Strawn did not provide this person's name, nor did he provide any information concerning the person's whereabouts.
Lastly, Strawn asserted that there was one other witness he was unable to locate. However, he did not name the witness or explain where the witness might be, and he made no proffer as to the witness's expected testimony.
The superior court ultimately denied the continuance, finding that Strawn had failed to show that he would be able to secure any of these witnesses in a timely manner and had also failed to show that their testimony would be inconsistent with the State's witnesses or otherwise exculpatory.
In Salazar v. State, the Alaska Supreme Court held that a trial court is required to consider the following factors when ruling on a request for a continuance to secure testimony:
(1) whether the testimony is material to the case; (2) whether the testimony can be elicited from another source; (3) whether the testimony is cumulative; (4) probability of securing the absent witness in a reasonable time; (5) whether the requesting party was diligent and acting in good faith; (6) the inconvenience to the court and/or others; and (7) the likelihood that the testimony would have affected the jury's verdict.
Salazar v. State, 559 P.2d 66, 72 (Alaska 1976).
Here, the record shows that the superior court properly considered these factors. We conclude that the court's ruling weighing these factors and denying the requested continuance was not an abuse of discretion.
We note that, on appeal, Strawn blames his appointed standby counsel for failing to locate and procure Strawn's witnesses. But because Strawn did not raise this issue in the trial court, the claim is not preserved. There is also no record as to whether and when Strawn requested his standby counsel to start looking for these witnesses, what information Strawn provided the attorney, or what efforts the attorney made to locate the witnesses.
Strawn's voir dire claims
Strawn next contends that the superior court abused its discretion during the voir dire process. But Strawn did not have the jury selection transcribed. Strawn has therefore not preserved this issue for review. Moreover, the specific examples Strawn discusses in his brief all occurred during jury selection for the first trial. Any alleged errors that may have occurred during the voir dire process of the first trial could not have affected the second trial, which was in front of a different jury.
Strawn also argues that the superior court erred by allowing the prosecutor to omit key witnesses from the list of potential witnesses on the jury questionnaires. But Strawn does not show where he raised this issue in the trial court; nor does he identify any of the witnesses that he believed were "key" but not included on the questionnaire. Thus, even assuming that Strawn did raise this issue during jury selection for his second trial - and nothing in the log notes suggests that he did - he has waived the issue by failing to adequately brief it on appeal.
Berezyuk v. State, 282 P.3d 386, 392 (Alaska App. 2012); Petersen v. Mut. Life Ins. Co. of N.Y., 803 P.2d 406, 410 (Alaska 1990).
Strawn's request to poll the jury based on a photograph in the paper
On the ninth day of trial, Strawn requested that the trial court poll the jury to determine if any of the jurors had seen a picture of Strawn that had appeared in the Juneau Empire. The photograph apparently showed Strawn in handcuffs. The trial court declined to do so in the absence of any indication that "the jurors had not been following their instructions about staying away from the media." The court emphasized that the jurors had been instructed to avoid the media and to report any media contact to the court, and the court noted that there had not been any reports.
Despite the court's suggestion, Strawn did not introduce the photograph into the record.
On appeal, Strawn argues that it was reversible error for the trial court to refuse to poll the jury about the photograph. But jurors are presumed to understand and follow their instructions. Here, Strawn provided no basis to conclude that any juror saw the photograph of him in the paper and then failed to follow the instruction to report this media contact to the trial court.
Coffin v. State, 425 P.3d 172, 175 (Alaska App. 2018) ("As a general matter, jurors are presumed to follow the instructions that they are given . . . ."); Lau v. State, 175 P.3d 659, 663 (Alaska App. 2008).
Because there was no basis for believing the jury had not followed its instructions, it was within the trial court's discretion to decline Strawn's request to poll the jury on this matter. Indeed, it was not unreasonable for the judge to fear that questioning the jurors about media coverage could cause jurors to speculate concerning what might be in the media, and that they might do so to Strawn's detriment.
Strawn's cross-examination of state witnesses
Strawn argues that the trial court unconstitutionally abridged his cross-examination of the police officers who obtained the search warrants. It appears that Strawn wanted to question the officers about how they responded to Judge Levy's questions during the search warrant hearing.
The State objected, arguing that Strawn was trying to relitigate the validity of the search warrants and that this testimony would be confusing to the jury which was not tasked with deciding this issue. The superior court sustained the objection on these grounds.
On appeal, Strawn asserts that he was not relitigating the search warrant issue, and he provides a list of questions that he intended to ask the officers:
(1) whether someone else was involved (2) did they move the body (3) do you know if someone is in Strawn's residence (at time of warrant app.) (4) what did the
eyewitness tell you in regards to their relationship (5) [d]id you ask for fingerprints in warrants.
But it does not appear that Strawn ever provided the trial court with this list of questions. Indeed, it appears likely that Strawn would have been permitted to ask these questions if he had been clearer about what he wanted to ask. We note that the trial court did give Strawn permission to ask one of the questions - whether the police knew if anyone was in Strawn's residence when they applied for the search warrants - when Strawn was clear about what he wanted to ask. But Strawn, for unknown reasons, did not ask that question.
In any event, Strawn has not shown that his questions would have produced new non-cumulative material evidence in his case. The record shows that the jury heard evidence that (1) except for the two victims and Strawn, no one else was present when Cook was killed or otherwise involved in the murder; (2) Cook's body had not been moved when police arrived; (3) the police did not know if anyone was in Strawn's residence when the warrants were served; (4) Albertson told the police that Cook was a good friend of hers and that she had known Strawn for a week; and (5) the police did not look for fingerprints at the crime scene.
In sum, the trial court did not abuse its discretion in ruling that Strawn would not be permitted to relitigate the validity of the search warrants at trial, and Strawn has failed to show that he was prejudiced by any alleged abridgment of his cross-examination of the police officers.
Strawn's other claims on appeal
We note that it is possible that Strawn intended to raise claims on appeal other than the ones we have identified and addressed in this decision. However, to the extent that this is so, these claims have been waived for inadequate briefing.
See Petersen, 803 P.2d at 410 ("Where a point is not given more than a cursory statement in the argument portion of the brief, the point will not be considered on appeal."); see also A.H. v. W.P., 896 P.2d 240, 243-44 (Alaska 1995) (explaining that the majority of the litigant's fifty-six arguments were waived for inadequate briefing).
Conclusion
For the reasons explained in this decision, the judgment of the superior court is AFFIRMED.