Opinion
Court of Appeals No. A-10870 Trial Court No. 3AN-06-11374 CRNo. 6008
12-11-2013
MICHAEL L. WAGNER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Margi Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W. H. Hawley, 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.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge.
Appearances: Margi Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Senior Judge COATS.
Michael L. Wagner was convicted of murder in the first degree for shooting Steven Key in the head and killing him. At trial, there was no dispute that Wagner fired the shot that killed Key. The only issue was his mental state when he did so; Wagner claimed the shooting was an accident.
Wagner argues that there was insufficient evidence for the jury to find that he intended to kill Key. We conclude based on our review of the record that the State presented sufficient evidence to support the conviction.
Wagner also argues that the court erred in ruling that the State could use statements he made to the police shortly after the homicide to cross-examine him if he took the stand and testified at trial. We conclude that Wagner did not preserve this claim because he did not testify.
There was sufficient evidence for the jury to find beyond a reasonable doubt that Wagner committed murder in the first degree
A person commits murder in the first degree if, "with intent to cause the death of another person, the person causes the death of any person." AS 11.41.100-(a)(1)(A). Wagner's defense was that the shooting was an accident — that he did not intend to kill Key.
Wagner argues that there was insufficient evidence for the jury to convict him of this offense. When we review the sufficiency of the evidence to support a jury's verdict, the test is whether the evidence and the inferences to be drawn from that evidence, when viewed in the light most favorable to the verdict, are sufficient to support a conclusion by a fair-minded juror that the State proved the defendant's guilt beyond a reasonable doubt.
Hoekzema v. State, 193 P.3d 765, 767 (Alaska App. 2008); Hewitt v. State, 188 P.3d 697, 698 (Alaska App. 2008).
Viewed in that light, reasonable jurors could conclude that Wagner had a motive to kill Key. Wagner was living in Key's guest house. There was evidence that Wagner was infatuated with Key's wife, Denise, and that Wagner thought Key was drugging her and contributing to her poor health. Wagner told a friend, Harry Beeson, that he planned to call the police to have them check on Denise's welfare. Wagner also told Beeson that, if it became necessary, he would do an "intervention" on behalf of Denise.
There was other evidence that Key was not killed by accident. The day before the shooting, Wagner bought the semi-automatic pistol he used to kill Key, and a box of ammunition. He went to the shooting range that same day, and it is a fair inference that he familiarized himself with the weapon at the range.
Wagner showed his new pistol to Beeson. When he did so, he carefully unloaded the weapon and made sure it was empty. According to Beeson, Wagner turned toward the outside of the garage, removed the gun's magazine, and opened the chamber to see if there was a bullet in it, then double-checked, then handed the gun to Beeson to take by the handle. The gun was never pointed at Beeson. There was also evidence that Wagner owned several guns, that he frequently carried a small handgun, and that he was familiar with guns similar to the gun he used to kill Key.
The State's firearm expert testified that the pistol had many safety features. The expert testified that, to fire the weapon, the manual safety must be in the firing position; the grip safety must be depressed; the hammer must be cocked; there must be a cartridge in the chamber; and between six-and-one-half to seven pounds of pressure must be applied to the trigger.
The events immediately preceding the homicide also support the jury's conclusion that Wagner intended to kill Key. The evening of the homicide, at 6:57 p.m., Wagner telephoned Key. Wagner said that he smelled gas in the guesthouse. Key went to check. When Key came back he told Denise that he did not smell gas but smelled something that he could not identify. About 7:30 p.m., Wagner called the police, anonymously reporting that the Keys had been screaming and yelling for five days. Wagner requested a welfare check and also stated that the Keys were growing marijuana. When the police responded, minutes after the call, the house was silent. The Keys allowed the police to look around the house and treated the officers like neighbors who had dropped by. The officers did not detect any odor of marijuana, and they left after a few minutes. Wagner again called the police at 8:06 p.m. and reported that the Keys were screaming and yelling, that Key had a machine gun, and that the Keys had many marijuana plants in their basement. When the police operator expressed skepticism, Wagner apparently hung up.
At about 8:12 p.m., Wagner called Key again. Denise testified that she did not hear the substance of the telephone call, but at the end of the conversation Key threw the phone down and, without putting any shoes on, "went running out the door as if the man's life was in danger."
About two minutes later, at 8:14 p.m., Wagner called 911. He reported that there had been an accident, that he had been showing someone a pistol, and that it had gone off. Wagner stayed on the line until the police arrived.
The State's medical examiner testified that Key died from a bullet that entered near his right ear and exited at the back left side of his head.
After this evidence was presented to the jury, Wagner moved for a judgment of acquittal, arguing that there was insufficient evidence to show that he intended to kill Key. The trial court denied the motion, noting that Key was shot through the head with a gun that had numerous safety features and was "relatively hard to fire by accident."
We agree with the trial court that there was sufficient evidence for the jury to find beyond a reasonable doubt that Wagner committed murder in the first degree. The jury heard evidence that Wagner was infatuated with Key's wife and planned to do an "intervention." Wagner had purchased a new gun, and his activities shortly before the homicide — particularly his strange activities on the night of the homicide — suggest that he was carrying out this "intervention." Given the evidence of Wagner's familiarity with handguns, the safety features of the gun used to shoot Key, and Wagner's care in handling the gun when he showed it to Beeson, a reasonable jury could reject Wagner's claim that the shooting was an accident and conclude that Wagner intentionally killed Key.
Wagner has not preserved his claim that the superior court erred in finding that the statement that Wagner made to the police following the homicide could be used for impeachment purposes
After Wagner was charged with Key's murder, he moved to suppress statements he had made to the police shortly after the homicide. The superior court granted the motion to suppress, finding that the police had violated Wagner's Miranda rights by not honoring his request for an attorney. The State was therefore precluded from using Wagner's statements in its case-in-chief.
However, the superior court ruled that the State could use the suppressed statements to impeach Wagner if he took the stand and testified in his defense. The superior court relied on State v. Batts, where this Court held that it was constitutionally permissible for the State to impeach a testifying defendant with statements obtained in violation of Miranda if those violations were neither intentional nor egregious.
195 P.3d 144 (Alaska App. 2008).
Id. at 158.
Wagner did not testify at his trial. He now contends that he did not testify because the court ruled that the State could cross-examine him with his illegally obtained statements. We conclude that Wagner has not preserved this claim because he never took the stand at trial, and was never impeached with his statements.
In Luce v. United States, the United States Supreme Court held (as a matter of federal procedural law) that a defendant must testify if the defendant wishes to preserve a claim that the trial court erred when ruling on the government's permissible scope of cross-examination or impeachment. (In Luce, the question was whether the government would be able to introduce evidence of the defendant's prior conviction if he took the stand.) The Supreme Court reasoned that, unless there was a record of the "precise nature of the defendant's testimony," an appellate court would not have an adequate basis to review the trial court's evidentiary ruling, or to determine whether any error in the trial court's ruling was harmless.
469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984).
Id. at 43, 105 S. Ct. at 464.
Id. at 41-42, 105 S. Ct. at 463-64.
The Alaska Supreme Court adopted the Luce rule in State v. Wickham. Our supreme court reasoned that "the factual vacuum caused by the absence of the defendant's testimony creates an unacceptable level of speculation when making the harmless error determination."
796 P.2d 1354, 1357 (Alaska 1990).
Id. at 1358.
Wickham argued that his case should not be governed by the Luce rule because he had made an offer of proof in the trial court, detailing the testimony he proposed to give. But the supreme court held that this was not enough to cure the procedural problem. The supreme court observed that, even though the record contained Wickham's offer of proof, an appellate court would still be required to make a number of speculative assumptions to resolve Wickham's claim of error: that Wickham would indeed have testified if the trial court had not ruled that the impeachment evidence was admissible; that Wickham's testimony would have mirrored his offer of proof; that the State would actually have introduced evidence of his prior convictions; and that no other evidence damaging to Wickham would have come in during his cross-examination or in rebuttal to his testimony.
Id.
Id.
In Sam v. State, this Court extended the Luce/Wickham rule to a situation beyond a defendant's impeachment by evidence of prior convictions. In Sam, the defendant gave notice of his intent to raise the defense of diminished capacity. He moved to preclude the State from calling a psychiatrist who had examined him and concluded that he was capable of forming specific intent to kill. Sam argued that the court should exclude this testimony because the psychiatrist had not made an audio recording of his psychiatric examination, which Sam argued was required under Houston v. State. The trial court ruled that the State could present the psychiatrist's testimony if Sam offered expert testimony in support of his diminished capacity defense. Sam then abandoned the defense, claiming he did so because of the court's unfavorable ruling.
842 P.2d 596 (Alaska App. 1992).
Id. at 598-99.
Id. at 598.
Id.
Id.; see Houston v. State, 602 P.2d 184, 196 (Alaska 1919).
Sam, 842 P.2d at 598.
Id.
We concluded that, under Wickham, Sam's decision to abandon his diminished capacity defense barred him from appealing the superior court's decision conditionally admitting the psychiatrist's testimony. We noted that Sam had not provided the trial court with a detailed offer of proof on his proposed defense of diminished capacity, that the record did not reveal the specific testimony the psychiatrist was likely to offer to impeach him, and that the prosecution never firmly committed to calling the psychiatrist as a rebuttal witness. We concluded that, given the record, "[a]ny attempt to divine the likely effect of the alleged error ... would amount to pure speculation."
Id. at 598-99.
Id. at 599.
In his opening brief, Wagner argues that the Luce/Wickham rule should not control his case because the statements which the superior court was prepared to admit for impeachment purposes were obtained in violation of his constitutional rights.
But the defendant in Sam raised a similar claim: Sam argued that Wickham was distinguishable because the Wickham decision involved an evidentiary question — whether evidence of prior convictions could be used to impeach the defendant — while Sam's case involved the use of impeachment evidence that implicated Sam's constitutional rights. We rejected that argument, observing that "Wickham addressed the inherent uncertainty and artificiality of applying a harmless error analysis in a purely hypothetical or abstract context, a problem that is largely unaffected by the applicable harmless error standard." We adhere to that decision here. The constitutional claim that Wagner raises is subject to harmless error review; consequently, the same obstacles to appellate review identified in Luce, Wickham, and Sam are also present in this case.
Id.
Id.
See Arizona v. Fulminante, 499 U.S. 279, 306-312, 111 S. Ct. 1246, 1263-66, 113 L. Ed. 2d 302 (1991).
In his reply brief, Wagner argues for the first time that appellate review of his case would be less speculative than in Wickham and Sam, because Wagner testified about the homicide at his sentencing hearing, and he was cross-examined by the prosecutor. Based on this testimony at the sentencing hearing, Wagner argues that this Court now knows what kind of testimony he would have given if he had testified during the trial, and what kind of cross-examination he would have faced.
We reject this argument for two reasons.
First, Wagner's argument that the rule of Wickham and Sam should not apply to defendants who testify at sentencing, after their trial is over, is raised for the first time in Wagner's reply brief. An appellant is not permitted to raise new arguments in a reply brief.
See Berezyuk v. State, 282 P.3d 386, 398 & n.1 (Alaska App. 2012).
Second, the factors that might influence a defendant's decision whether to testify at sentencing, after the jury has already delivered its verdict, are significantly different from the factors that might influence a defendant's decision whether to testify at sentencing. Likewise, a prosecutor's motivation to cross-examine the defendant is significantly different when the defendant testifies at sentencing, after the jury's verdict is already known, as opposed to when the defendant testifies at trial, when the issue of guilt or innocence has not yet been decided.
The jury had already found Wagner guilty of first-degree murder; that is, the jury had found that Wagner deliberately shot Keys, and that he did so with the intent to kill him. Nothing Wagner said at sentencing could alter that jury finding, so Wagner was free to say whatever he wanted — even if his version of events and his account of his own thinking at the time were not particularly plausible. For this reason, we cannot simply assume that Wagner's testimony at trial would have been the same as the testimony he offered at his sentencing hearing. Nor can we assume that the content of the prosecutor's cross-examination would have been the same if Wagner had offered this testimony at trial, when the issue of guilt or innocence remained undecided.
For these reasons, we conclude that the rule of Wickham and Sam applies to Wagner's case, and Wagner's failure to testify at trial means that he waived his right to challenge the trial judge's evidentiary ruling.
Conclusion
The judgment of the superior court is AFFIRMED.