Opinion
Court of Appeals No. A-8801.
March 22, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge. Trial Court No. 3AN-02-4342 CR.
Margi A. Mock, Assistant Public Defender, and Barbara K. Brink and Quinlan Steiner, Public Defenders, Anchorage, for the Appellant.
Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Isaiah L. Wallner stabbed to death his wife, Brenda Wallner. A grand jury indicted him on charges of murder in the first and second degree and tampering with evidence. Wallner moved to suppress numerous incriminating statements made in a custodial police interview. Wallner also moved to dismiss the grand jury indictment because the State had introduced evidence of his confession. Superior Court Judge Larry D. Card granted Wallner's motion to suppress his confession. But he denied Wallner's motion to dismiss the indictment, concluding that, given the strength of the other evidence which the State presented in the grand jury proceeding, that evidence was legally sufficient to support the indictment and admission of the improper evidence at the grand jury proceeding did not unduly prejudice the grand jury's decision. A trial jury convicted Wallner on all counts. On appeal, Wallner contends that Judge Card erred in refusing to dismiss the indictment. We affirm.
Factual and procedural background
On the morning of May 22, 2002, Isaiah L. Wallner stabbed to death his wife, Brenda Wallner. Before she died, Mrs. Wallner managed to walk to a driveway near the intersection of Ingra and 15th Avenue in Anchorage. Mrs. Wallner identified her husband as the person who had stabbed her to persons rendering her aid. When investigating officers converged upon Wallner's apartment they found him with a kitchen knife to his throat, begging the police to shoot him and indicating he wanted to die. In the process of attempting to calm Wallner down, officers asked him what had happened. Wallner stated that he and his wife had been fighting and that he had been contemplating killing her. He said his wife got upset about that and was going to call the police. Wallner also stated that he did not want to go to jail. After repeated efforts to calm down Wallner failed, police used a non-deadly method of disarming him, consisting of shooting him four times with rubber bullets. Wallner dropped the knife. The police arrested him and took him to the police station. At the police station, Wallner made a lengthy confession.
The State charged Wallner with alternative counts of first- and second-degree murder and one count of tampering with physical evidence. At the grand jury proceedings three witnesses testified: Karen Larkin, Dr. Frank G. Fallico, and Anchorage Police Department Detective Pam Perrenoud. Karen Larkin testified that on her way to work she witnessed a woman lying in a driveway "full of blood" and stopped to administer aid. Ms. Larkin testified as follows: "And I asked her who had done it to her, and she said, my husband did. And I said, where did he stab you. She said, all over." When asked what Mrs. Wallner looked like when she first arrived on the scene Ms. Larkin replied, "She was just — it was just a bloody mess from her head to her toe. You know, just — it was everywhere. Her arms, her clothes, her hair, her face." Ms. Larkin testified that when the police asked Mrs. Wallner whether she had been stabbed, she heard Mrs. Wallner reply "yes" and that her husband had done it. Ms. Larkin also testified as to the location of Mrs. Wallner and her demeanor.
The next witness to testify was Dr. Frank G. Fallico, a forensic pathologist and the acting chief medical examiner for the State of Alaska. Dr. Fallico performed an autopsy on Mrs. Wallner on May 23, 2002. According to Dr. Fallico, Mrs. Wallner died after sustaining forty-three stab wounds to her body. Dr. Fallico described the most serious wounds in terms of location, shape, resulting injury, and the effect of the injury. The most serious wounds were located on the front of the chest and on the back, resulting in the puncture of both lungs and the heart. Dr. Fallico described these wounds as "major stab wounds," and "consistent with lethality over a very short period of — short period of time. There were other wounds on her body, many other wounds, and they could be lethal too, but they would be lethal over a longer period of time." Dr. Fallico also described defensive wounds found on Ms. Wallner's body, including nineteen different wounds to both her hands and arms. The other wounds were located in varying spots on Mrs. Wallner's neck, shoulder, head, arms, and chest.
The final witness to testify before the grand jury was Detective Pam Perrenoud. Detective Perrenoud testified that the police initially received two 911 calls concerning the assault of Brenda Wallner. She explained the beginnings of the police investigation.
Detective Perrenoud recounted Wallner's statements to the police when they first made contact with him at his apartment. She testified that when police officers entered the apartment Wallner held a kitchen knife to his throat and said, "just shoot me, I want to die" and things of that nature. While trying to calm him down, the officers asked Wallner what had happened and whether he had been fighting with his wife. Detective Perrenoud testified that Wallner replied that he and his wife had been fighting, that "he had been contemplating killing her, and that she got upset about that and was going to call the police." In addition, Detective Perrenoud testified that Wallner made statements that he did not want to go to jail. Detective Perrenoud then described how the police were able to disarm Wallner without seriously injuring him.
Last, Detective Perrenoud testified as to the interview conducted at the police station with Wallner that contained numerous incriminating statements. She recounted Wallner's statements, where he described how he had sat in his bedroom on the edge of the bed while his wife was sleeping from 1:45 till around 5:00 in the morning, contemplating killing her during that time. Detective Perrenoud further testified that Wallner made statements that he had told his wife about his thoughts of killing her, that this made her angry, and that she responded by attempting to leave to call the police (there was no phone in the apartment). Detective Perrenoud testified that Wallner then described that it was at this point when he decided to stab his wife. He stated that he began looking for a vantage point to stab her, and stabbed her in the back; they then struggled, Mrs. Wallner fell onto her back and he ended up on top of her and stabbed her in the chest, at which point Mrs. Wallner told him that she was going to die. Detective Perrenoud further testified that, when asked why he stabbed his wife, Wallner replied that she called him names, that she was always complaining, that she was going to leave him, and that he didn't want to lose his child. Finally, in response to a juror's question, Detective Perrenoud testified that Mrs. Wallner's eight-year-old son made statements that when he came downstairs, he saw Wallner stab his mother in the chest.
Wallner filed a motion to suppress the statements that he made to the police during the custodial interview at the police station. He also made a motion to dismiss the indictment. Judge Card granted Wallner's motion to suppress the statements that he made during his custodial interview with the officers. Judge Card found that the statements were illegally obtained. Judge Card denied Wallner's motion to dismiss the indictment, finding that there was sufficient evidence, absent the illegally obtained statements, to support the grand jury's indictment, and that the illegally obtained statements were not the decisive factor in the grand jury's decision to indict.
A jury convicted Wallner on all three counts in the indictment. Wallner now appeals, arguing that Judge Card erred in denying his motion to suppress the indictment.
Why we conclude that Judge Card did not err in denying Wallner's motion to dismiss the indictment
Judge Card suppressed Wallner's incriminating statements made at the police station. The State does not contest this ruling. Therefore, the grand jury heard inadmissible evidence, Wallner's confession. Where the grand jury has heard improper evidence, and the defendant moves to dismiss the indictment, the court engages in a two-part analysis:
First, the court must remove the improper evidence from the case heard by the grand jury and decide whether the evidence that remains is legally sufficient to support the indictment. If the indictment survives the first step of the analysis, the court must then examine the degree to which the improper evidence might have unfairly influenced the grand jury's decision. The question becomes whether "the probative force of [the] admissible evidence was so weak and the unfair prejudice engendered by the improper evidence was so strong that it appears likely that the improper evidence was the decisive factor in the grand jury's decision to indict."
Morrow v. State, 80 P.3d 262, 264-65 (Alaska App. 2003) (quoting Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992) (citing Oxereok v. State, 611 P.2d 913, 916 (Alaska 1980); Panther v. State, 780 P.2d 386, 393-94 (Alaska App. 1989); Newman v. State, 655 P.2d 1302, 1306 (Alaska App. 1982))).
Judge Card denied Wallner's motion to dismiss the indictment on the ground that the State presented strong admissible evidence that supported the indictment. He concluded that the improper admission of Wallner's confession was not the decisive factor in the grand jury's decision to indict.
The question before this court is whether Judge Card abused his discretion in concluding that the admission of Wallner's confession at the police station did not unduly influence the grand jury's decision to indict. Wallner contends that the evidence presented to the grand jury was not sufficient to support a charge of murder in the first degree. Murder in the first degree is defined under AS 11.41.100(a)(1)(A): "A person commits the crime of murder in the first degree if[,] with intent to cause the death of another person, the person . . . causes the death of any person[.]" Wallner contends that the State did not present sufficient evidence that he intended to kill his wife. But Brenda Wallner's injuries alone were sufficient to support an inference that Wallner intended to kill her. Wallner stabbed her forty-three times, and Dr. Fallico and other witnesses testified to the extent of her injuries. Furthermore, Wallner's statements at the scene supported a finding of an intent to kill.
See Gray v. State, 463 P.2d 897, 903 (Alaska 1970) (use of deadly weapons, if unexplained, is one circumstance that tends to prove intent to kill).
Wallner argues that, in reviewing whether the State presented sufficient evidence to the grand jury, we should consider the fact that Detective Perrenoud's grand jury testimony contained inadmissible hearsay statements from other police officers and Wallner's son. But Wallner raises these arguments for the first time on appeal. Wallner waived these issues by failing to raise them in the trial court. Furthermore, it appears that the statements of which Wallner complains were not inadmissible hearsay; at least, the admission of the statements did not constitute plain error.
Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988); Burford v. State, 515 P.2d 382, 383 (Alaska 1973) (failure to raise point at trial court level or include it in statements of points to be raised on appeal generally will foreclose appeal of an alleged error).
Certainly the admission of an inadmissible confession at grand jury could be highly prejudicial. But the evidence that the State presented at the grand jury, without considering Wallner's confession at the police station, was extremely strong. We therefore uphold Judge Card's decision that the improper evidence was not the decisive factor in the grand jury's decision to indict.
The judgment of the superior court is AFFIRMED.