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THE COURT OF APPEALS OF THE STATE OF ALASKA
GEORGE L. MILLER, )
) Court of Appeals No. A-3954
Appellant, ) Trial Court No. 3AN-S87-
8403CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1330 - January 7, 1994]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Mark C. Rowland,
Judge.
Appearances: Blair McCune, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Richard
W. Maki, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
George L. Miller was convicted, following a jury trial,
of first-degree robbery. Superior Court Judge Mark C. Rowland
sentenced Miller to fifteen years' imprisonment. Miller appeals,
claiming that the trial court erred in admitting evidence of
uncharged misconduct by Miller, in allowing the prosecutor to
comment improperly on this evidence during final argument, and in
instructing on the manner in which the evidence could be used by
the jury. Miller also claims that the trial court erred in
refusing to grant a mid-trial motion for a bill of particulars
and misinstructed the jury on accomplice liability. Finally,
Miller claims that his sentence is excessive. We affirm.
FACTS
In 1987, David and Mavis McClurg owned and operated a
gold mine in northwest Alaska, near Kotzebue. They lived in
Anchorage with their fifteen-year-old daughter Jackie and ran a
jewelry shop in their house.
On September 21, 1987, Jackie McClurg was staying at
the house while her parents were at the mine. In the evening,
she got a phone call from a man who said he needed to drop off
some papers for her father. Shortly after 10:00 p.m., a car
pulled into the McClurgs' driveway, and a man wearing a red hat
got out and came to the front door. As Jackie opened it, the man
grabbed her, turned her around, and told her that he had a gun
and this was a robbery. A second, shorter man followed the first
man into the McClurg home. The men forced Jackie to take them
downstairs to the jewelry shop, where they tied her up and began
taking jewelry.
Just then, Belinda Nix and Gary Greener, friends of the
McClurgs, drove up to the house. As Nix and Greener approached,
they saw an unfamiliar car with a man behind the wheel in the
driveway; the driver honked the horn and started to drive away.
Nix and Greener went into the house, where they saw the
second, shorter man heading out the back entrance near the shop.
Then the first, taller man pushed his way past Greener and went
out the front door. Nix and Greener heard Jackie call out and
found her tied up in the shop. They called the Alaska State
Troopers, who eventually determined that more than $50,000 in
gold and jewelry had been taken by the robbers.
Jackie McClurg identified the taller man as Dan
Finnigan, a former employee at the McClurg mine. Earlier that
day, Finnigan had come to the McClurgs' house and had tried
unsuccessfully to collect wages for his work at the mine.
Finnigan matched descriptions given the troopers by Nix and
Greener.
Several days later, on September 24, 1987, the troopers
arrested Finnigan for the robbery. They also arrested a friend
of Finnigan's, Randy Ringler, whom they suspected as the second,
shorter robber. Greener and Nix later identified Finnigan and
Ringler as the two men they had seen in the McClurg's house.
In October of 1987, the troopers received word that a
woman named Neva Johnson had been seen wearing a watch stolen
from the McClurgs' shop. On October 21, 1987, they contacted
Johnson, who said that her boyfriend, Michael Casalichhlio had
given her the watch. When contacted by the troopers,
Casalichhlio denied being involved in the robbery but turned over
several stolen items that he admitted receiving from George
Miller.
Casalichhlio eventually implicated Miller as the driver
of the getaway car in the robbery. Casalichhlio also revealed
that, soon after the robbery was committed, he accompanied Miller
on an airline trip to Florida, using tickets purchased with
robbery proceeds. The troopers also located two other friends of
Miller, Aaron and Sue Foltz, to whom Miller had admitted
participating in the robbery. Before the robbery, Aaron and Sue
Foltz had also heard Miller planning the crime.
Information given to the troopers by Casalichhlio and
the Foltzes also indicated that, prior to the robbery, Miller and
Casalichhlio had engaged in a joint venture trafficking cocaine
that Casalichhlio had obtained through a burglary involving a
cocaine dealer. Casalichhlio evidently furnished the drugs to
Miller, who was responsible for selling them; he would then share
the proceeds with Casalichhlio. Finnigan, and to a lesser extent
Ringler, had worked for Miller as runners, delivering cocaine and
collecting money. Miller and Casalichhlio had planned to use
profits from their cocaine sales to finance a trip to Florida,
where they intended to buy two additional kilograms of cocaine
for resale in Alaska. Miller, however, had begun to use cocaine
heavily himself and had failed to collect enough money in sales
to keep current on his payments to Casalichhlio. Prior to the
McClurg robbery, he had become indebted to Casalichhlio for
between $4,000 and $4,500. Finnigan, in turn owed a substantial
sum of money to Miller. When it became apparent that there would
be insufficient funds to finance the trip to Florida for
additional cocaine, Miller hit upon the idea of the McClurg
robbery as an alternative means to finance the Florida trip.
Based on the foregoing information, the state secured
indictments charging Miller, Finnigan, and Ringler with the
McClurg robbery and Casalichhlio with theft for receiving
property stolen in the robbery. When the indictments were
issued, Miller, who had never returned to Alaska from his trip to
Florida, remained at large. Finnigan, Ringler, and Casalichhlio
were tried and convicted.
Soon after the trial ended, however, Ringler wrote
Finnigan a letter in which he (Ringler) acknowledged his own
participation in the McClurg robbery but proclaimed Finnigan's
innocence. Ringler identified himself as the second, shorter man
in the robbery and claimed that the first, taller man had been
Miller, not Finnigan. According to Ringler's letter, the driver
of the getaway car had been someone named "Bill," whose last name
he did not know.
As a result of Ringler's letter, Finnigan was awarded a
new trial. Before the second trial, Miller, who had been
arrested in Texas on a fugitive warrant, was extradited to
Alaska. His trial was consolidated with Finnigan's second trial.
At trial, the state relied primarily on its original theory of
the case -- that Finnigan had been the taller of the two robbers
who entered the McClurg home and that Miller had been the getaway
driver and had masterminded the robbery. Finnigan, relying on
Ringler, defended on the theory that Miller had been the taller
robber and that another, unknown man had driven the getaway car.
Although Miller did not testify or present witnesses, he
attempted to establish that none of the state's evidence against
him was sufficiently credible to prove his participation in the
robbery.
EVIDENCE OF PRIOR MISCONDUCT
Over Miller's objection, the trial court allowed the
state to present evidence at trial that Miller, Casalichhlio,
Finnigan, and Ringler trafficked in and used cocaine. The judge
admitted the evidence because "[i]t defined the relationship
between the parties at the time. It dealt with motive, plan,
completed the history of the crime." Miller challenges this
ruling on appeal, arguing that the evidence was inadmissible
under Alaska Rules of Evidence 404(b) and 403.
Alaska Rule of Evidence 404(b) governs the
admissibility of evidence of prior misconduct. A.R.E. 404(b)(1)
states:
Evidence of other crimes, wrongs, or
acts is not admissible if the sole purpose
for offering the evidence is to prove the
character of a person in order to show that
the person acted in conformity therewith. It
is, however, admissible for other purposes,
including, but not limited to, proof of
motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake or accident.1
Under this rule, evidence of prior bad acts is
categorically barred if it has no relevance apart from its
tendency to establish the accused's propensity to engage in
misconduct. If evidence of prior bad acts does have relevance to
a material issue other than propensity, then it may be admitted,
provided that its probative value outweighs its potential for
prejudice. A.R.E. 403. See Martin v. State, 797 P.2d 1209, 1215
(Alaska App. 1990).
Miller argues first that evidence of his cocaine
dealing had no relevance apart from its tendency to establish
criminal propensity. But this view is plainly incorrect. As the
trial court properly determined, the evidence of Miller's cocaine
use and dealing had a direct and obvious bearing on his motive to
participate in the alleged robbery. Miller, however, cites cases
that have disapproved the admission of evidence showing the
accused's addiction to drugs as proof of motive. See, e.g.,
Gould v. State, 579 P.2d 535, 538 (Alaska 1978) and Eubanks v.
State, 516 P.2d 726, 729 (Alaska 1973). These cases recognize
that, since the desire for money is virtually universal and
motivates most property crimes, it is a motive that can readily
be understood by jurors, even in the absence of specific proof.
For this reason, evidence that the accused needed money for a
particularly reprehensible purpose such as the use of drugs,
while potentially highly prejudicial, will add little on the
issue of motive, at least unless the evidence establishes a
particularized connection, or affirmative link, between the drug
use and the charged offense.
Here, we think the evidence below plainly established
an affirmative link between Miller's prior drug dealing and the
McClurg robbery, since it supported the conclusion that Miller's
drug dealings and the robbery were an integral part of a common
scheme or plan. Indeed, under A.R.E. 404(b), the existence of a
common scheme or plan amounts to an independent basis for
admission of the disputed evidence.
The evidence of Miller's drug dealing tended to
establish how the idea of the McClurg robbery was conceived and
why the robbery was executed. Specifically, the evidence
indicated that Miller's failed drug dealings, his debt to
Casalichhlio, and Finnigan's debt to him, led directly to the
McClurg robbery. Beyond this, the evidence also depicted both
the drug dealing and the robbery as part of a more comprehensive
plan to buy cocaine in Florida for resale in Alaska.
Miller correctly notes that the plan to rob the
McClurgs was not even hatched until much of the cocaine dealing
and use had already occurred. Miller contends that, for this
reason, the robbery and cocaine trafficking cannot properly be
characterized as part of a common scheme or plan. See, e.g.,
Oswald v. State, 715 P.2d 276, 280 n.2 (Alaska App. 1986) ("To be
properly admissible under Rule 404(b) it is not enough to show
that each crime was `planned' in the same way; rather, there must
be some overall scheme of which each of the crimes is but a
part."), overruled on other grounds, Yearty v. State, 805 P.2d
987, 995 n.3 (Alaska App. 1991).
Here, however, as we have already observed, the
evidence tended to show that the robbery originated in Miller's
failure to generate sufficient funds through his drug dealings to
carry through with his planned trip to buy greater quantities of
drugs in Florida. The fact that the robbery had its source in
the failed drug trafficking and that both the robbery and the
drug trafficking were aimed at a common goal -- to bankroll a
larger drug enterprise -- gave the disputed evidence legitimate
relevance as proof of a common scheme or plan. See, e.g., United
States v. Hopkinson, 492 F.2d 1041, 1043 (1st Cir. 1974). See
also Edward J. Imwinkelried, Uncharged Misconduct Evidence 3:21
at 54, 3.22 at 57 (1984) ("[T]he specific crime the defendant is
charged with need not have been contemplated originally." "Even
if the crimes are not predicated on each other, there may be a
strong inference of a connected chain of crimes.").
The issue of motive and the existence of a common
scheme or plan were not formal elements of the offense with which
Miller was charged. Under the circumstances of this case,
however, proof of motive and common scheme or plan were crucial
and legitimate components of the prosecution's case. The
disputed evidence bore directly on the primary issue in dispute
at trial -- Miller's identity as a participant in the robbery.
The state had a strong need for this evidence. Miller had not
been identified by any of the witnesses to the robbery. The
state's efforts to establish his connection to the crime depended
in large measure on its ability to show the robbery as an
integral part of an overarching plan in which his participation
was more clearly established.2
Because the disputed evidence had direct and obvious
bearing on an actively disputed issue and was actually necessary
to the state's case, we conclude that the trial court did not
abuse its discretion in finding the evidence more probative than
prejudicial under A.R.E. 403 and in allowing its admission.
PROSECUTION'S CLOSING ARGUMENT
Miller next contends that the prosecution made
numerous improper references to his prior drug dealings during
its closing argument to the jury. To a large extent, however,
Miller's argument is premised on a notion we have already
rejected: that evidence of Miller's drug use was of dubious
relevance and should not have been admitted in the first place.
Moreover, Miller objected to the prosecution's closing argument
at only one juncture:
We're in here searching for the
truth. You are. And you are going to be the
ultimate determiners of what happened to the
facts. But don't hold it against the State
because we gave immunity. Because, listen,
Ladies and Gentlemen, people like Dan
Finnigan and George Miller don't confess to
crimes to people like yourselves.
The only people that they confess to
crimes to and talk about their involvement in
these type of things is people of their ilk,
drug dealers, drug users.
At this point Miller's attorney objected:
Well, I have to object. I think that is
drawing an improper witness statement as to
improper inferences of guilt by association.
That evidence wasn't admitted for that
purpose.
THE COURT: Overruled. Overruled. I don't
think it does that to begin with. And I
think the argument was proper. You may
continue.
As the trial transcript makes clear, the basis of
Miller's objection was not that the prosecutor was improperly
commenting on evidence of Miller's prior misconduct, but rather
that the prosecution was raising "improper inferences of guilt by
association," evidently by implying that Miller should be
convicted for associating with "drug dealers, drug users."
However, this does not appear to be what the prosecutor
was attempting to do. The prosecutor's argument was evidently
aimed at convincing the jury that its own witnesses --
Casalichhlio and the Foltzes -- were credible in attributing
admissions to Miller, despite the fact that they had themselves
been shown to be "drug dealers, drug users" who had demanded
immunity from prosecution in return for their testimony at trial.
The point of the prosecutor's remarks, as we understand it, was
essentially that, given the nature of the relationship between
Miller, Finnigan, Casalichhlio, and the Foltzes, it was natural
for Miller to have made the types of admissions Casalichhlio and
the Foltzes attributed to him, and it would have been unnatural
for him to make such admissions to anyone else.
Because it does not appear that the prosection's
argument raised "improper inferences of guilt by association," we
find no error in the trial court's decision to overrule Miller's
objection. Nor do we find plain error in the remaining portions
of the prosecution's final argument, to which Miller raised no
contemporaneous objection.
INSTRUCTION ON PRIOR MISCONDUCT EVIDENCE
At the conclusion of the trial, the court gave the jury
the following instruction concerning the manner in which it could
consider the evidence of Miller's prior cocaine dealings:
The jury, in the course of taking
evidence, has heard evidence suggesting that
the defendants used and distributed illegal
substances. Mr. Miller and Mr. Finnigan are
not on trial for drug offenses. This
evidence should not be considered by you as
evidence that the defendants are bad people
and are, therefore, more likely to have
committed the offenses with which they are
charged. This evidence may only be
considered by you as it may aid in
determining whether or not the State has
proven beyond a reasonable doubt the
defendants' guilt of the crime with which
they are charged.
On appeal, Miller challenges this instruction,
contending that its final sentence was vague, allowing the jury
to consider the evidence of prior misconduct as proof of Miller's
propensity to commit crimes. Miller points out that the
instruction does not conform to Alaska Pattern Jury Instruction
1.43, which specifically informs the jury how to consider
evidence of a prior crime. In particular, Miller emphasizes the
concluding language of Pattern Instruction 1.43:
For the limited purpose for which you
may consider such evidence, you must weigh it
in the same manner as you do all other
evidence in the case.
You are not permitted to consider such
evidence for any other purpose.
Miller contends that this language should have been
given to his jury. Miller's position, however, is curiously
inconsistent with the position he took below. Miller objected at
trial to an instruction proposed by the state that tracked
Pattern Instruction 1.43 and specifically included the language
Miller now claims should have been given. In response to
Miller's objection, the trial court drafted the instruction
Miller now finds objectionable; yet Miller failed to object to
that instruction below.
During final argument to the jury, the prosecution
repeated the reasons for the introduction of prior misconduct
evidence, correctly informing the jury that it had been admitted
only for purposes of showing motive, plan, and Miller's
relationship to Casalichhlio, Finnigan, and Ringler. Also,
Miller's trial counsel expressly cautioned the jury against
misusing the prior misconduct evidence. While the challenged
instruction was perhaps less than exemplary, we conclude that it
did not amount to plain error.
INSTRUCTIONS ON ACCOMPLICE LIABILITY
Miller next contends that the trial court's
instructions on accomplice liability were deficient. Miller was
evidently indicted on the theory that he was the getaway driver
in the robbery. At trial, an element of confusion as to Miller's
role arose when Ringler testified that Miller and Ringler had
entered the McClurg house together, that a third man named "Bill"
had driven the getaway car, and that Finnigan was entirely
innocent of the alleged crime.
In an attempt to address this problem, the state sought
jury instructions allowing Miller to be convicted as either an
accomplice (for being the driver) or as a principal (for being
one of the two men who had entered the house). The trial court,
while initially receptive, ultimately decided that, since Miller
had been indicted as an accomplice for driving the getaway car,
he could be convicted only on that theory. The court fashioned
its jury instructions accordingly, instructing the jury as
follows:
The defendant, George Miller, is charged
in Count I of the Indictment with robbery in
the first degree. A person commits the crime
of robbery in the first degree if the offense
is committed by the conduct of another person
for whom he is legally accountable.
A person is legally accountable for the
conduct of another person constituting an
offense if, with intent to promote or
facilitate the commission of an offense, he
aids or abets the other person in planning or
committing the offense.
In order to establish that the defendant
is legally accountable in this case the State
must prove the following beyond a reasonable
doubt:
First, that the event in question
occurred on or about September 21, 1987, and
at or near Anchorage, in the Third Judicial
District;
Second, that the defendant, George
Miller, acted knowingly and with the intent
to promote or facilitate commission of the
crime of robbery in the first degree;
Third, that the defendant aided or
abetted another person in planning or
committing the crime of robbery in the first
degree; and
Fourth, that the person, who the
defendant aided or abetted, in the course of
taking or attempting to take property from
the immediate presence and control of
another, used or threatened the immediate use
of force upon any person with the intent to
prevent or overcome resistance to taking the
property or retention of the property after
taking, or to compel any person to deliver
the property or engage in other conduct which
might aid in the taking of the property and
in the course of the taking or the immediate
flight after the taking, the person, who the
defendant aided or abetted, or another
participant was armed with a deadly weapon or
represented by words or conduct that any of
the participants was so armed.
If you find from your consideration of
all the evidence that each of these
propositions has been proven beyond a
reasonable doubt, then you shall find the
defendant guilty.
If, on the other hand, you find from
your consideration of all the evidence that
any of these propositions has not been proven
beyond a reasonable doubt, then you shall
find the defendant not guilty.
Although Miller concedes on appeal that this
instruction conforms with Alaska Pattern Jury Instruction 16.100
- .110(2), and although he acknowledges that he failed to object
to it, he claims plain error, arguing that the instruction was so
vague that it allowed his conviction as a principal.
We find this argument meritless. Miller in effect
posits that the jury might have convicted him as an accomplice
for being a principal: he reasons that, under the challenged
instruction, the jury might have found that he was one of the men
who entered the McClurg house, might have concluded that the two
robbers aided and abetted each other, and so might have convicted
him as an accomplice.
This theory proceeds from a strained interpretation of
the evidence and an attenuated reading of the challenged
instruction. Moreover, the theory is premised on a fundamentally
flawed view of accomplice liability, for it mistakenly assumes
that a defendant indicted as an accomplice must be convicted as
an accomplice and that it would therefore have been error to
allow the jury to convict him as a principal.
However, the legal distinction between principals and
accomplices has long been abrogated in Alaska. See AS 11.16.110.
See also Morris v. State, 630 P.2d 13, 15-16 (Alaska 1981);
Machado v. State, 797 P.2d 677, 685-86 (Alaska App. 1990). It is
well-settled that a defendant charged as a principal may be
convicted as an accomplice; the converse is also true.3 Scharver
v. State, 561 P.2d 300, 302 (Alaska 1977); Totemoff v. State, ___
P.2d ___, Op. No. 1328 (Alaska App., December 23, 1993). See
generally 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive
Criminal Law, 6.6(d)(2) at 131 (1986).
Here, the trial court, evidently accepting Miller's
argument that a contrary result would be legally impermissible,
sought to limit the state to the original theory upon which it
indicted Miller: that Miller was guilty of robbery as an
accomplice for driving the getaway car. As a matter of law,
however, Miller was properly subject to conviction either as a
principal or as an accomplice. Hence, even if the jury
instructions did not succeed in narrowing the charge to
accomplice liability and allowed Miller to be convicted as a
principal, plain error could not be found.4
SENTENCING ISSUES
Miller contends that his sentence was improperly
imposed and is excessive. First-degree robbery is a class A
felony. AS 11.41.500(b). Miller had previously been convicted
of second-degree criminal mischief, a felony; as a second felony
offender, he was subject to a presumptive term of ten years'
imprisonment. AS 12.55.125(c)(3). Judge Rowland found three of
the aggravating factors specified in AS 12.55.155(c) applicable
to Miller's case: that Miller's conduct had created a risk of
imminent physical injury to three or more persons (factor
(c)(6)); that Miller had a history of repeated instances of
assaultive behavior (factor (c)(8)); and that Miller was on
felony probation when he committed the robbery (factor (c)(20)).
Based on these aggravating factors, Judge Rowland sentenced
Miller to an enhanced presumptive term of fifteen years.
In imposing sentence, Judge Rowland briefly summarized
Miller's extensive criminal history and, in the course of doing
so, mentioned Miller's previous involvement in a robbery for
which he had not been convicted.5 Judge Rowland's reference to
the prior robbery was evidently based on the presentence report,
which disclosed that in 1978 Miller had been an accomplice in an
armed robbery but had received immunity in exchange for his
testimony against other participants.6
Miller now asserts that he in all likelihood received
transactional immunity for his testimony concerning the prior
robbery and that, for this reason, Judge Rowland's consideration
of the prior robbery amounted to a violation of both the immunity
agreement and Miller's privilege against self-incrimination.
Miller never raised this issue at the sentencing
hearing. He did not move to strike the information concerning
the prior robbery from the presentence report, nor did he object
to Judge Rowland's mention of the incident. Furthermore, Miller
has presented nothing to establish the nature and terms of the
immunity agreement that he entered into with the state.
Without further information, it would be wholly
speculative for this court to conclude that Judge Rowland's
consideration of the prior robbery violated Miller's rights under
the agreement. Moreover, the prior incident was merely mentioned
by Judge Rowland as one of many acts of misconduct included in
Miller's lengthy criminal history. We decline to find that Judge
Rowland's passing reference to the prior robbery amounted to
plain error.
Miller further asserts that Judge Rowland erred in
finding aggravating factor (c)(6) applicable to his case: that
Miller's conduct created a risk of imminent physical injury to
three or more persons other than accomplices. According to
Miller, the evidence does not support the conclusion that Greener
and Cox -- who entered the McClurg house while the robbery was in
progress -- were placed at risk, since it was undisputed that
the robbers who were in the house left immediately upon Greener's
and Cox's arrival.
The evidence also indicated, however, that one of the
robbers was armed with a stun gun. He encountered Greener and
Cox while making his exit and pushed past both of them. In the
course of doing so, he grabbed Greener's head and shoved him out
of the way. In our view, this evidence was sufficient to allow
Judge Rowland to conclude that, even though Greener and Cox were
not actually injured, both were placed in imminent risk of
injury. The court's finding that factor (c)(6) applied is not
clearly erroneous.
Miller lastly asserts that his fifteen-year term is
excessive. He suggests that Judge Rowland's decision to enhance
the applicable ten-year presumptive term by five years was
"overzealous" and at odds with the "measured and restrained
approach toward adjustment of presumptive terms" that this court
counseled in Juneby v. State, 641 P.2d 823 (Alaska App. 1982),
modified on other grounds, 665 P.2d 30, 31-34 (Alaska App. 1983).
However, Miller stood convicted of an armed robbery
that involved the theft of more than $50,000 in jewelry. The
robbery, which involved three persons, was carefully planned; the
evidence at trial suggested that Miller was primarily responsible
for planning it. The apparent purpose of the robbery was to fund
another criminal venture. In the course of the robbery, Jackie
McClurg was incapacitated and held captive. Although her
captivity was brief -- due to the fortuitous arrival of Greener
and Cox -- the situation obviously involved a significant risk of
injury.
Miller's criminal history is extensive, dating back to
his youth; it includes several convictions for assaultive
behavior. He has consistently failed at rehabilitation and was
on felony probation when he committed this offense. At
sentencing, Miller claimed innocence and insisted that he had
been framed.
Considering the totality of the sentencing record,
Judge Rowland could properly find that Miller was a dangerous
offender with poor prospects for rehabilitation. Judge Rowland
could also properly find that, under the circumstances, a
sentence emphasizing community condemnation and isolation was
appropriate. Having independently reviewed the entire sentencing
record, we conclude that the sentence imposed below is not
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
CONCLUSION
The conviction and sentence are AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1. As the state notes, Alaska Rule of Evidence 404(b)(1)
was amended by ch. 79, 4, SLA 1991. At the time of Miller's
trial, it lacked the phrase "if the sole purpose for offering the
evidence is."
2. The state's efforts also hinged on its ability to
convince the jury of the credibility of testimony given by
Casalichhlio and the Foltzes concerning various incriminatory
statements Miller made before and after the robbery. We agree
with the state that the credibility of these witnesses and the
meaning of the statements they attributed to Miller could not
have been fully established without revealing the relationship of
the various parties and the context in which they spoke with each
other. This, in turn would amount to another independent
justification for admission of the disputed evidence. See, e.g.,
Braham v. State, 571 P.2d 631, 640-41 (Alaska 1977); Dulier v.
State, 511 P.2d 1058, 1061 (Alaska 1973); McKee v. State, 488
P.2d 1039, 1041 (Alaska 1971); Ciervo v. State, 756 P.2d 907, 911
(Alaska App. 1988), overruled on other grounds, Swain v. State,
817 P.2d 927, 933 (Alaska App. 1991).
3. Miller's confusion on this score centers on Michael v.
State, 805 P.2d 371 (Alaska 1991), the sole case he relies on to
support his argument on this issue. Michael, however, is readily
distinguishable. There the supreme court found a fatal variance
between the indictment and the evidence at trial when an offender
was convicted of a crime that was not charged in the indictment,
based on a legal and factual theory that had not been presented
to the grand jury. No question of accomplice liability was
presented in that case.
4. Our resolution of this issue also disposes of Miller's
related claim that the trial court erred in denying his mid-trial
motion for a bill of particulars, which sought to narrow his
indictment to charge him as the driver of the getaway car. The
fact that the jury instructions pertaining to Miller ultimately
addressed only accomplice liability rendered Miller's motion for
a bill of particulars moot. As we have indicated, even if the
instructions did not succeed in limiting the jury to the original
accomplice liability theory, Miller was properly subject to
conviction either as a principal or as an accomplice. Thus, he
was not entitled to a bill of particulars narrowing the charge.
5. Judge Rowland said:
Before the court is George L. Miller who's
now 36 years old. He's here on his second
felony offense which figures a presumptive
sentencing scheme. The defendant has an
extensive criminal history going back many,
many years to his -- back to his juvenile
years in which -- during which time there
were serious crimes committed. There are as
I -- many convictions and it's apparent that
previously he was involved in a robbery,
although he was not convicted of that crime.
The defendant has a demonstrated capacity for
violence, cruelty and assaultive conduct, the
latest assault occurring as recently as
December 1988. The defendant has been
involved in narcotics as demonstrated by the
testimony in this case. I don't need to go
over that at this time.
6. The prior robbery is described (and Miller's immunity
mentioned) in Miller v. State, 629 P.2d 546 (Alaska App. 1981).
