Opinion
No. 5899
11-21-2012
DARCY TYONE, Appellant, v. STATE OF ALASKA, Appellee.
Hanley Rebecca Smith, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
Court of Appeals No. A-10799
Trial Court No. 3GL-09-222 Cr
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Glenallen, Daniel Schally, Judge.
Appearances: Hanley Rebecca Smith, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MANNHEIMER, Judge.
Darcy Tyone was convicted of third-degree criminal mischief, based on evidence that he went out one night in the village of Gulkana and slashed twenty-three tires on twelve different vehicles. He appeals his conviction on two grounds.
First, Tyone argues that the trial judge committed plain error by failing to instruct the jury on an essential element of the State's proof: that Tyone's individual acts of damaging the twenty-three tires were all part of a single course of conduct. By alleging that Tyone damaged the tires during a single course of conduct, the State was able to aggregate the value of the damage to reach the $500 threshold for third-degree criminal mischief; see AS 11.46.980(c). But the jury was never asked to find whether Tyone's acts of vandalism constituted a single course of conduct.
Second, Tyone argues that the State violated its duty of pre-trial disclosure under Alaska Criminal Rule 16. This issue arose when the State presented the testimony of the state trooper who followed footprints in the snow from the site of the vandalized vehicles back to the apartment where Tyone was staying. The trooper obtained a search warrant for this apartment, and he seized a pair of shoes whose soles appeared to be consistent with the footprints. When the trooper took the stand, he described his training and experience. During this portion of his testimony, the trooper mentioned that he had attended a tracking school. This aspect of the trooper's training and experience had not been previously disclosed to Tyone's attorney, and Tyone asserts that the failure to disclose this information earlier was a violation of Criminal Rule 16.
For the reasons explained in this opinion, we conclude that, given the way Tyone's case was litigated, the absence of a "single course of conduct" instruction was not plain error. We further conclude that, even assuming that the State violated Rule 16 by failing to give Tyone's attorney advance notice of the trooper's prior training at the tracking school, there is no likelihood that the jury's verdict was affected.
The absence of a "one course of conduct" jury instruction
To prove the offense of third-degree criminal mischief, the State had to prove that Tyone caused at least $500 worth of damage when he slashed the twenty-three tires.
See AS 11.46.482(a)(1).
None of the tires was worth $500 individually. And (with one arguable exception), even though individual vehicle owners suffered damage to more than one tire, none of the vehicle owners suffered damage of $500 or more. The State took Tyone to trial on a single consolidated count of third-degree criminal mischief, relying primarily on the theory that Tyone damaged all twenty-three tires during one course of conduct—and thus, pursuant to AS 11.46.980(c), Tyone could be convicted of third-degree criminal mischief based on the aggregate damage to the tires.
Both parties understood that the State was trying to prove that the tire slashings were committed during one course of conduct. Indeed, at the close of the State's case-in-chief, Tyone's attorney asked the superior court to grant Tyone a judgement of acquittal because (according to the defense attorney) the State had not presented "any evidence that this was a continuing act". But at the end of the trial, neither party asked the trial judge to instruct the jury on the "one course of conduct" requirement, and the final version of the jury instructions did not include any reference to this requirement.
On appeal, Tyone claims that the lack of such an instruction requires reversal of his conviction. But because Tyone's attorney did not object to the lack of a "one course of conduct" instruction, Tyone must now show plain error.
To establish plain error, Tyone must show (1) that the error would have been obvious to any competent judge, (2) that Tyone's attorney had no tactical reason for failing to object, and (3) that the lack of a "one course of conduct" instruction prejudiced the fundamental fairness of the proceedings. See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
The first aspect of the plain error test is met here. The State's proof of the $500 threshold for third-degree criminal mischief rested primarily on the premise that Tyone's individual acts of damaging the tires were part of one course of conduct. This was an essential element of the State's proof, if the State was to reach the $500 threshold by aggregating the individual damages. Thus, the lack of a "one course of conduct" instruction was an obvious error. (The State concedes this on appeal.)
However, there is a significant possibility that Tyone's attorney chose to withhold any objection to the lack of a "one course of conduct" instruction.
As we have explained, the defense attorney was clearly aware that this was an essential element of the State's case: he asked for a judgement of acquittal on this basis. When the trial judge denied this defense motion, the judge pointed out that there was significant evidence tending to show that Tyone engaged in one course of conduct: According to the State's evidence, all of the tire-slashing took place within a few hours, and within the confines of a small village. (According to the 2010 census, Gulkana had 119 inhabitants.)
After the judge denied the defense attorney's motion for a judgement of acquittal, the defense attorney never mentioned the "one course of conduct" requirement again. More specifically, when the defense attorney argued the case to the jury, he never suggested that the State had failed to prove the $500 threshold for damage. Instead, the sole focus of the defense attorney's summation was his contention that the State had failed to prove, beyond a reasonable doubt, that Tyone was the one who slashed the tires.
Given this litigation strategy, there is a distinct possibility that the defense attorney refrained from objecting to the jury instructions because (1) the lack of a "one course of conduct" instruction would have no effect on the issue he wished to litigate (i.e., the identity of the offender), and (2) the lack of a "one course of conduct" instruction would provide a point on appeal if the jury convicted Tyone.
Moreover, we conclude that the lack of such an instruction did not prejudice the fundamental fairness of Tyone's trial. Even if the jury had been expressly asked to decide whether the tire-slashings were part of one course of conduct, there is no reasonable possibility that the jury would have decided this issue in Tyone's favor. Thus, the absence of such an instruction was harmless beyond a reasonable doubt.
Accordingly, Tyone has failed to show that the absence of a "one course of conduct" instruction constituted plain error.
The fact that the trooper had received formal training in tracking
The investigating officer in this case, Trooper Phillip Duce, testified that he found similar-looking footprints near many of the vandalized vehicles. He photographed some of these footprints (after coloring them with Kool-Aid®), and he followed these footprints to an apartment. Duce applied for a warrant to search this apartment.
It turned out that Tyone was staying in the apartment. Duce asked Tyone to show him all of his shoes, and Tyone showed Duce several pairs of shoes, but none of these shoes matched the footprints that Duce had observed in the snow. After Duce arrested Tyone and took him to the trooper post, Duce returned to the apartment and continued to search it. He ultimately found another pair of shoes hidden behind a duffel bag, underneath a desk. Duce examined this pair of shoes and compared the soles of the shoes to the footprints in the snow; he concluded that they matched.
The issue that Tyone raises on appeal arose from the introductory questions that the prosecutor asked Duce when he first took the stand. The prosecutor asked Duce how long he had served as a state trooper, and what training he had received. Duce initially answered that he had received a lot of training, but that he could not recall the specific areas of training. The prosecutor then prompted Duce:
Prosecutor: Have you gone to any training about — on your own, like, involving tracking?
Duce: Yeah. ... Not associated with the Troopers, but, yes, I've gone to a wilderness survival school that [focuses on] tracking. Everything that they do in that school revolves around tracking. ... It's the Tom Brown, Jr. Tracker School, and ... I've done about seven weeks of that school. ... [The curriculum includes] all sorts of wilderness survival techniques: ... starting fires, building shelters, finding food, water, purifying water, [and] the natural sense of wilderness survival. ...
Prosecutor: [Do] they have any specialized training in tracking?
Duce: They do. They have one course that revolves specifically around tracking ... , and the title of that [course] was "Advanced Awareness in Tracking".
Prosecutor: What kind of things did you learn about [in that course]?
Duce: ... What to look ... for in a track, ... what it means ...
At this point, Tyone's defense attorney objected that the State had not identified Trooper Duce as an anticipated expert witness when the State made its pre-trial disclosure under Criminal Rule 16. The defense attorney told the trial judge that he had not had the opportunity to investigate Duce's training, or to investigate whether Duce truly was qualified to give an opinion "as to whether a track matched" — in other words, whether the footprints in the snow at the site of the vandalized vehicles could be matched to a particular pair of shoes.
For this reason, the defense attorney asked the trial judge to prohibit Trooper Duce from "mak[ing] any assertion that these tracks matched". The trial judge denied this request and allowed Duce to continue his testimony.
During his cross-examination of Trooper Duce, the defendant questioned the trooper extensively concerning the trooper's assertion that Tyone's shoes matched the footprints in the snow. The defense attorney showed the jury some of Duce's photographs of the footprints, "so [that the jury could] determine for themselves if they think [the photograph] matches."
The prosecutor agreed that the jurors could form their own conclusion as to whether the shoes matched the footprints. The prosecutor declared that "[even] a lay person could ... see [the] patterns [on the soles of the shoes] and how they look like the photos in [Exhibits Number] 21 and 23."
During their summations to the jury, both the prosecutor and the defense attorney again urged the jurors to examine the shoes and the photographs, and to form their own conclusions about whether they matched. The prosecutor told the jurors:
Prosecutor: Trooper Duce did a good job of explaining to you ... how [footprints are formed] in the snow, and how he was able to identify the footprints. You can look at the footprints yourself, and ... some of them you can see
pretty well; some of them are harder to see. But the pattern is exactly the same ... as the shoe that you've seen. The pattern of that [sole], that oval in every single heel [print], is the same.
Tyone's defense attorney agreed that "a lot of [the footprints] are the same", but he pointed out that some of the footprints "don't line up quite as neat." He reminded the jurors that they had the opportunity to examine the photographs of the footprints, and he argued that "[the jurors could] see that they're not all the same."
The defense attorney conceded that many of the footprints did match Tyone's shoes, but he argued that most of those matching footprints were "right around Mr. Tyone's apartment". In other words, the defense attorney argued that the matching footprints were located in places where one would expect to find them, given the fact that Tyone was living in that apartment.
On appeal, Tyone does not contend that Duce should have been barred from offering testimony that he found footprints at the scene of the various vandalized vehicles, that he believed some of these footprints were made by the same pair of shoes, and that he followed these similar footprints to Tyone's apartment. However, Tyone argues that it was error for the trial judge to allow Duce to bolster his testimony with information about his specialized training in tracking.
Tyone asserts that, because the State did not disclose this information about Duce's training when the State made its discovery under Criminal Rule 16, Tyone was denied a fair opportunity to challenge that training. Tyone asserts that he was prejudiced by the evidence concerning Duce's specialized training because, when Duce later offered his opinion that the footprints at the various vehicles were similar, and that these footprints led to Tyone's apartment, his conclusions "appear[ed] more authoritative" to the jurors.
We agree with Tyone that some of Duce's testimony probably qualified as expert testimony, because Duce offered analyses that would be difficult for another person to evaluate if they did not share his specialized training. We are speaking, in particular, of Duce's explanations of how one might be able to tell whether a footprint was made by a person who was walking, or who was kneeling or crouching, or who had his arms up or down. We are also speaking of Duce's explanations of how snow conditions will affect the type of print that is left behind by a boot or shoe.
See Carter v. State, 235 P.3d 221, 225 (Alaska App. 2010), where this Court explained that "expert" testimony differs from "lay" testimony in that "the chain of inference that the [expert] has relied on ... when reaching [their conclusion] ... rests on specialized ... knowledge that is likely not shared by the trier of fact." In other words, this testimony is "expert" testimony because, in order for the jurors to understand or assess the expert's conclusion, "the jurors must be given background information about facts and principles that are generally known only to members of the [expert's] profession [or peer group]."
But these areas of expertise ultimately had little importance to the jury's decision, given the facts of Tyone's case and the way it was litigated. As we have explained, the jurors were given Duce's photographs of the footprints, and both attorneys actively urged the jurors to examine these photographs, compare them to Tyone's shoes, and form their own conclusions as to whether the sole pattern of the shoes matched the footprints.
Moreover, when Tyone's attorney delivered his summation, he conceded that many of the footprints found at the scene matched Tyone's shoes. The defense attorney adopted the strategy of arguing that the presence of these matching footprints did not prove Tyone's guilt — because Tyone lived nearby, and one would therefore expect to find his footprints in the area.
For these reasons, we conclude that even if the State should have given Tyone's attorney advance notice of Duce's specialized training in tracking, there is little reason to think that this error appreciably affected the outcome of Tyone's trial.
See Love v. State, 457 P.2d 622, 634 (Alaska 1969) (holding that the test for the harmlessness of non-constitutional error is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict").
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Conclusion
The judgement of the superior court is AFFIRMED.