Summary
reiterating that while a "romantic relationship" or "emotional attachment" between a witness and a party is relevant as a source of bias, "trial judges could properly regulate the presentation of this evidence to minimize possible prejudicial impact"
Summary of this case from Leviege v. StateOpinion
Court of Appeals No. A-8532.
October 27, 2004.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar and Charles R. Pengilly, Judges. Trial Court No. 4FA-01-2572 CR.
Marlin D. Smith, Law Office of Marlin D. Smith, Wellsboro, Pennsylvania, for Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted David L. Westfall of first-degree robbery, failure to stop at the direction of a peace officer, and driving with a suspended license. Westfall appeals his convictions on the grounds that the trial court: (1) improperly restricted Westfall's cross-examination of two witnesses; (2) violated Criminal Rule 25 by allowing a judge who had not presided over the trial to respond to jury questions; and (3) abused its discretion by denying his motions for a new trial based on newly discovered evidence. We affirm Westfall's convictions.
AS 11.41.500 (a).
AS 28.35.182 (b).
AS 28.15.291 (a)(1).
Factual and procedural background
In the early morning hours of August 20, 2001, Westfall and Donald L. Baker encountered Brenda Cleveland in the hallway outside of Cleveland's apartment. Cleveland had just left her apartment with Bryce Crow and Danny Lewis. According to Cleveland, Westfall approached Cleveland, pointed a shotgun at her, and told her "to drop everything on the floor and give me the money." Westfall then allegedly told Cleveland to empty her pockets and threatened to shoot her foot off and kill her. Westfall picked up Cleveland's keys, which had fallen on the floor, took an undetermined amount of money from Cleveland, and ran away.
During the course of this altercation, Conten to Farren, Cleveland's roommate and girlfriend, heard Cleveland screaming and ran into the hallway to intervene. Baker hit Farren in the face, resulting in a concussion. Cleveland then saw Baker knock Lewis to the ground while Crow ran off during the fight.
Farren's recollection of the incident mirrored Cleveland's. Farren identified Westfall, saw something "long and pointed" under his jacket, and heard him threaten to kill Cleveland Crow similarly testified that he saw Westfall demand money from Cleveland while holding an eighteen-inch-long object that appeared to be a shotgun under his jacket. Jesse McEnerney, who lived in the apartment next to Cleveland, also saw Westfall pointing what looked to be a short double-barreled shotgun at Cleveland, while threatening to kill her or shoot her legs if he did not get his $200.
Fairbanks Police Sergeant Douglas Whorton responded to the incident. Sergeant Whorton saw Westfall's truck accelerating away from the apartment complex. Sergeant Whorton activated his siren, overhead lights, and spotlight, but Westfall continued driving away. After making various turns, Westfall slowed his truck, jumped out of the vehicle, and attempted to run from the police. Fairbanks police officers eventually caught up with Westfall and arrested him.
A grand jury indicted Westfall and Baker for first-degree robbery and failure to stop at the direction of a peace officer. The State also charged Westfall with driving with a suspended license.
Westfall and Baker were tried together. Baker did not testify. At trial, Westfall testified that Cleveland owed him $200 on an outstanding loan. Westfall saw Cleveland in the apartment complex, asked her for his money, and the two engaged in a heated argument. Westfall denied threatening Cleveland and stated that he did not have a shotgun with him. Westfall claimed that he ran from the police because he did not want to get in trouble knowing he had been drinking that night and that he had a suspended license.
A jury convicted Westfall of all the charges. Westfall appeals his convictions.
Westfall's cross-examination of Cleveland
Westfall sought permission from the court to question Cleveland about the fact that she was having a sexual relationship with Farren. He contended that this information about Cleveland's relationship with Farren would tend to establish the depth of Cleveland's hostility toward Westfall, who had hit Farren. He also argued that this evidence was relevant to show why Farren might lie to support Cleveland Acting Superior Court Judge Jane F. Kauvar pointed out that Cleveland had already made clear the nature of her close relationship with Farren. She ruled that Westfall could establish that Cleveland cared a great deal about Farren and repeatedly referred to Farren as "her girl." But Judge Kauvar concluded that it was unnecessary to discuss Cleveland's "sexual preferences." Westfall argues that this ruling was error.
We addressed the importance of allowing evidence of a sexual relationship to establish bias in McIntyre v. State. The State charged McIntyre with committing fourth-degree assault against his wife, L.M., outside of a friend's house. The main witnesses at trial were L.M. and also S.D., a mutual female friend of both McIntyre and L.M. L.M. testified that she was assaulted by McIntyre. S.D. corroborated L.M.'s version of the events, stating she witnessed the assault while looking out the window of her house. (McIntyre defended the charge on the ground that he acted in self defense after L.M. had punched him.)
934 P.2d 770 (Alaska App. 1997).
Id. at 771.
Id. at 771-72.
Id. at 772.
Id.
Id.
McIntyre sought permission to inquire into S.D.'s potential bias as he claimed that L.M. and S.D. were involved in a romantic relationship and this bias towards L.M. would cast doubt on S.D.'s corroborating account of the assault. The district court denied McIntyre's motion, concluding that any romantic relationship between L.M. and S.D. was minimally probative and presented a high potential of prejudice given the community's attitudes toward same-sex relationships.
Id.
Id.
On appeal, we concluded that the trial judge "abused his discretion by precluding all inquiry into S.D.'s possible bias in favor of L.M. The evidence of S.D.'s bias had significant probative value." We concluded that while the trial judge could properly have found that the evidence of a sexual relationship between L.M. and S.D. could have prejudiced the jury against them, the probative value of the evidence outweighed the prejudice. We stated:
Id. at 773.
The bias of a witness toward a party is always relevant to the jury's consideration of the case; it is never a collateral issue. If a witness has a romantic relationship with a party, or any other emotional attachment to a party, that fact is clearly a source of potential bias; the jury should be aware of such evidence in order to fully evaluate the witness's testimony. This is true regardless of whether the witness and the party are of the same sex or of opposite sexes.
Id. at 773 (citation omitted).
We cautioned that trial judges could properly regulate the presentation of this evidence to minimize possible prejudicial impact. We also cautioned that a party must establish a good faith basis before embarking into asking about the possible existence of a romantic relationship. But we concluded that "when evidence of a romantic relationship tends to establish a witness's potential bias, and no other evidence is available to establish the same bias, a court may not wholly exclude inquiry into the relationship."
Id. at 774.
Id. at 773 (footnote omitted).
Applying these standards, we conclude that Judge Kauvar may well have erred in preventing Westfall from establishing that Cleveland had a sexual relationship with Farren. However, our review of the record convinces us that any error was harmless beyond a reasonable doubt. During the course of her testimony, Cleveland established the nature of her relationship with Farren. Cleveland and Farren were roommates and Cleveland repeatedly referred to Farren as "my girl." Cleveland also referred to Farren as her "significant other." Defense counsel explicitly referred to Farren as Cleveland's "girlfriend" and "your girl" when questioning Cleveland Under the circumstances, we conclude that the jury was aware of the nature of Cleveland's relationship with Farren and that Westfall was able to point out Cleveland's potential bias based on the nature of that relationship.
Westfall also moved to cross-examine Cleveland about her prior police contacts and her familiarity with and membership in "the Fairbanks cocaine culture." Westfall contended that this information was relevant to establish Cleveland's motive to fabricate her robbery accusation against Westfall in order to deflect the police from looking into her drug activities. He also contended that the evidence would show that Cleveland was sophisticated about the criminal justice system and might have used this expertise to falsely accuse Westfall of robbery in order to remove him from her life.
Judge Kauvar tentatively ruled that the probative value of the evidence was outweighed by the potential for unfair prejudice. She concluded that Westfall had not demonstrated how the fact that Cleveland may have been a drug user or dealer was relevant. She also reasoned that a person did not have to be sophisticated in order to understand that charging a person with a serious crime might be an effective way to eliminate them from your life. But Judge Kauvar specifically left open the possibility that Westfall might be able to establish the relevance of this evidence later in the case. Westfall never reapplied to introduce this evidence.
We conclude that Judge Kauvar did not abuse her discretion in determining that Cleveland's purported familiarity with and membership in the Fairbanks drug culture had limited probative value and was substantially prejudicial. Judge Kauvar could properly conclude that Westfall had not shown how Cleveland's false report of a robbery might deflect the police from Cleveland's purported involvement with drugs. It appears that Cleveland's report of the robbery would intensify police scrutiny of her behavior. We also believe that Judge Kauvar could properly conclude that Cleveland's purported sophistication with the criminal justice system did not significantly enhance her knowledge that charging someone with a serious crime would tend to eliminate them as a threat or problem. We accordingly conclude that Judge Kauvar did not err in foreclosing this area of cross-examination absent a firmer showing of relevance.
Westfall's cross-examination of Bryce Crow
At the time he testified, Crow was in custody at the Fairbanks Youth Facility, charged as a juvenile. According to Crow, he was charged with burglary, breaking and entering, and resisting arrest. In a voir dire hearing, outside the presence of the jury, Westfall asked Crow whether he hoped or expected to get favorable treatment on these charges because he was testifying for the State. Crow stated that he did not think he was getting any favorable consideration. Westfall contended that he should be able to ask Crow this question in front of the jury so that the jurors could evaluate the truthfulness of his answer.
Judge Kauvar agreed that Westfall could ask Crow whether he had any charges pending and whether he expected to obtain favorable treatment on account of his testimony, but she ruled that Westfall could not elicit the specific charges that Crow faced. She then asked if there were any objections. The prosecutor responded, "No." The record shows no response by Westfall's attorney.
Before the jury, Westfall had Crow acknowledge that he currently had charges pending against him. He asked Crow whether Crow hoped he would get favorable treatment because of his testimony. Crow responded, "No."
On appeal, Westfall contends that Judge Kauvar erred in limiting his cross-examination of Crow. He argues that he was not allowed to effectively cross-examine Crow about his motivation to testify favorably for the State. He also argues that he should have been able to question Crow about the specific charges he faced. But the record shows that Westfall did not object to this limitation. If Westfall wished to cross-examine Crow more extensively on this issue, he had a duty to make it clear that he needed to conduct a more extensive cross-examination. Since he did not do this, he has not preserved this issue for appeal. The substitution of Judge Pengilly for Judge Kauvar
See Kvasnikoff v. State, 674 P.2d 302, 306 n. 7 (Alaska App. 1983).
Judge Kauvar presided over Westfall's trial. Just before noon on November 28, 2001, the jury began deliberating the case. Outside the presence of the jury, Judge Kauvar notified the parties that she would be presiding over another trial beginning the next day in Delta Junction. She hoped to be available for any questions, but if she was not available, another judge would handle the questions. Westfall did not object.
That afternoon, before Judge Kauvar departed for Delta Junction, the jury sent several notes to the court requesting to review testimony from various witnesses and asking a question regarding whether Baker could be convicted of a lesser-included offense. After consultation with the parties, Judge Kauvar answered all of these questions. The jury did not reach a verdict that night and Judge Kauvar left for Delta Junction.
The next morning, the jury sent the following note to the court: "If the jury cannot unanimously decide on a greater charge, can we go to a lesser charge? i.e., can we have a hung jury on a greater charge and then convict on a lesser charge?" Superior Court Judge Charles R. Pengilly was asked to address the question. After consultation with the parties, Judge Pengilly answered the jury's question: "No, you must come to a unanimous decision on the greater charge first. Please refer to Baker's Instruction No. 3 and Westfall's Instruction No. 36." Judge Pengilly answered the jury's questions. Ultimately the jury notified the court that it had reached a decision but was unable to reach a verdict on the charges against Baker. The jury returned a guilty verdict against Westfall on all counts but did not return a verdict on the charges against Baker.
On appeal, Westfall argues that Judge Pengilly violated Alaska Criminal Rule 25(b) by presiding over this stage of his trial. Alaska Criminal Rule 25(b) states:
If a judge holding superior court be prevented during a trial from continuing to preside therein, the presiding judge or the chief justice of the supreme court shall designate another judge of the superior court to sit in such court to complete such trial, as if such other judge had been present and presiding from the commencement of such trial, provided, however, that from the beginning of the taking of testimony at such trial a stenographic or electronic record of such trial shall have been made so that the judge so continuing may become familiar with the previous proceedings at such trial.
Westfall's claim fails on numerous grounds. First, Westfall never objected to having Judge Pengilly answer the jury's questions. Clearly Westfall was not entitled to withhold his objection until he received an unfavorable jury verdict. Second, Westfall does not allege that Judge Pengilly erred in any of the answers he gave to the jury and Westfall does not argue that he was prejudiced by any action by Judge Pengilly. Third, although Westfall contends that Judge Pengilly violated Criminal Rule 25(b) by not reviewing the trial record, Criminal Rule 25(b) does not require a judge to automatically review the record and there is no indication that the questions which the jury presented to Judge Pengilly would have required him to review the trial record. Rather, these questions dealt with matters of procedure common to all jury trials.
Westfall's motion for a new trial based on newly-discovered evidence
Westfall filed a motion for a new trial based on newly-discovered evidence. The motion was based on the testimony of his co-defendant, Donald Baker, and the testimony of David R. Pfalmer. Baker did not testify at trial, but testified in support of Westfall's motion for a new trial. Baker testified that on the date of the alleged robbery, August 20, 2001, he saw Westfall and Cleveland arguing but he did not see a weapon. He testified that if Westfall had used a shotgun he was fairly sure he would have seen it. Pfalmer testified that he first met David Westfall at the Fairbanks Correctional Center. Pfalmer stated that he had a conviction for robbery. He testified that on August 20th, he was living in an apartment building which was approximately fifty feet away from the altercation between Westfall and Cleveland Pfalmer testified that he knew Brenda Cleveland at that time but did not know Westfall. According to Pfalmer, he saw Cleveland and Westfall yelling at each other. Then Cleveland threw something down, Westfall picked it up, got in his truck and left. Pfalmer testified that he did not see anything that looked like a robbery.
After hearing the testimony, Judge Kauvar concluded that Pfalmer and Baker merely corroborated the fact that Westfall and Cleveland had a confrontation, that Cleveland threw something down, and that Westfall picked it up and left in his truck. She concluded that the jury already had information that Westfall denied having a gun. She concluded that the critical evidence in the case was Westfall's behavior when he fled the scene, attempting to elude the police. She concluded that Westfall failed to establish that the presentation of the testimony in a new trial would probably produce an acquittal.
Judge Kauvar was the trial judge who presided over the presentation of the evidence at Westfall's trial. She also conducted the hearing at which Baker and Pfalmer testified. She therefore had the opportunity to weigh the credibility of the witnesses at the evidentiary hearing and to weigh the probable impact of that evidence in the context of the testimony presented at Westfall's trial.
State v. McDonald, 872 P.2d 627, 656 (Alaska App. 1994) (It is the trial judge's duty "to assess the credibility of the newly discovered evidence and to decide the probable impact of that evidence based on [the judge's] view of its credibility.") (quoting Gonzales v. State, 691 P.2d 285, 287 (Alaska App. 1984)).
Westfall does not address Judge Kauvar's decision, other than to argue that "[t]he evidence of David R. Pfalmer and Donald L. Baker presented by way of affidavits and testimony at evidentiary hearings meet all of the requirements [for a new trial based on newly-discovered evidence]." Westfall's brief does not provide any basis to find that Judge Kauvar erred in her ruling on the new trial motion. We also note that Baker's testimony does not appear to qualify as newly-discovered evidence. We have previously held that when a defendant who has not testified offers testimony to exculpate a co-defendant, that evidence is not considered to be newly-discovered evidence. Conclusion
See Alaska R. App. P. 212(c)(1)[I] ("The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on."); Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) ("[W]here a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal."); Petersen v. Mut. Life Ins. Co. of N.Y., 803 P.2d 406, 411 n. 8 (Alaska 1990) (mentioning that trial court refused to allow testimony is insufficient without "any legal argument as to why the court erred"); L.E. Spitzer Co., Inc. v. Barron, 581 P.2d 213, 218 (Alaska 1978) (concluding that party abandoned point on appeal because he provided "cursory treatment in his brief without the citation of any authority.").
Garoutte v. State, 683 P.2d 262, 268 (Alaska App. 1984).
We conclude that Westfall's contentions on appeal are not meritorious. The judgment of the superior court is AFFIRMED.