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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DONALD L. BAKER, )
) Court of Appeals No. A-5408
Appellant, ) Trial Court No. 4FA-93-2079 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1444 - October 20, 1995]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Jay Hodges, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
William H. Hawley, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Donald L. Baker was convicted of second-degree robbery,
AS 11.41.510(a), following a jury trial in the Fairbanks superior
court. He appeals both his conviction and the sentence he received.
We affirm.
According to the government's evidence, Baker and two
friends, John Stanfill and Jason Frazier, decided to get some free
pizzas by telephoning a Pizza Hut restaurant, ordering pizzas for
home delivery, and then robbing the delivery person when he came to
deliver their order. Baker's first attack on his conviction
concerns the issue of whether he acted as a principal or an
accessory in this robbery. Baker's second attack on his conviction
concerns the issue of whether the State presented sufficient
independent evidence to corroborate the testimony of Baker's
accomplices.
Stanfill, testifying under a grant of immunity, admitted
taking part in the robbery. He described the planning of the
robbery and the role each person played in the crime. Stanfill
testified that he phoned in the pizza order and that he told the
restaurant to deliver the pizzas to a neighboring apartment
building. The three friends then stationed themselves near the
entrance to this neighboring building. Stanfill waited on the
stairs, Frazier near the door, and Baker in the hallway. Stanfill
and Frazier had bandannas over their faces for concealment; Baker
wore a dark blue ski mask.
The delivery person, James Seymour, arrived with the
pizzas but was unable to find the person who had placed the order.
As Seymour turned to leave the building, the three robbers made
their move. Seymour testified he was struck by a man who emerged
from beneath a set of stairs. He described his assailant as a
light-complexioned black male wearing a one-holed dark blue ski mask
and dark gloves.
Upon being struck, Seymour fell to the ground, dropping
the pizzas. The man continued to hit Seymour. After the third
blow, Seymour shouted to his assailant that he could take the
pizzas. In a blur, Seymour saw someone kneel down, take the pizzas,
and flee the building. Seymour was never able to positively
identify the person who hit him.
Seymour's testimony that he was struck by a man who
emerged from underneath the stairs, in combination with Stanfill's
description of where each of the three men waited (Stanfill on the
stairs, Frazier near the door, and Baker in the hallway), tended to
identify Baker as the robber who struck Seymour þ the robber whom
Seymour saw emerge from "beneath ... the stairs". Moreover, when
Stanfill was asked, "What happened right when the robbery took
place?", Stanfill replied that he "saw the pizzas fall to the
ground" and that he and Frazier grabbed the pizzas and ran. This
response again raised the inference that Baker had been the one who
physically accosted Seymour. However, Stanfill was never asked
directly whether Baker was the one who hit Seymour.
Stanfill described how, after the robbery, the three men
brought the pizzas back to Stanfill's apartment. There the robbers
began to eat the pizzas, aided by Stanfill's younger sister and her
girlfriend. However, their meal was interrupted when Stanfill's
mother returned to the apartment. She had been visiting neighbors
in an adjacent building when she heard that a pizza delivery person
had been robbed. Suspecting that her son might be involved, she
returned home. When she found Stanfill and his friends eating
pizzas, she angrily told Stanfill, Frazier, and Baker to leave.
Frazier, who testified in exchange for favorable plea
bargains in various cases pending against him, also admitted taking
part in the robbery. He recounted that it was Baker who first
proposed the robbery and that it was Stanfill who left the apartment
and placed the call to Pizza Hut. Frazier corroborated Stanfill's
description of each man's location as they waited for the pizza
delivery person to arrive. Like Stanfill, Frazier never directly
testified that it was Baker who struck Seymour. Frazier did say
that, as Seymour turned to leave the building with the undelivered
pizzas, Frazier and Stanfill "grabbed the pizza, and we ran. Then
all three of us ran back to [Stanfill's] apartment." Frazier stated
that the three men (along with Stanfill's sister and her friend) set
about eating the pizzas until Stanfill's mother returned home and
told the men to leave.
Baker did not testify at trial. Through cross-examination
of Seymour, Stanfill, and Frazier, and in final argument, Baker's
attorney suggested that Baker had not participated in the robbery.
In particular, the defense attorney argued that Stanfill and Frazier
might be lying about Baker's involvement in order to shield an
unidentified friend and in order to obtain favorable treatment from
the State for their own crimes (by appearing to aid the government's
efforts to bring the third robber to justice).
The Propriety of Instructing the Jury on Accomplice
Liability (EN1)
Proceedings in the Trial Court
Toward the end of Baker's trial, as the court and the
parties discussed potential jury instructions, the question arose
whether the jury should be instructed on accomplice liability.
Included among the packet of proposed jury instructions was a two-
page instruction numbered "9". The first page of this instruction
described the law relating to accomplice liability (that is, the
circumstances under which a person can be held criminally account
able for the conduct of another). In the second page of the
instruction, the jurors were told that, if they found that one or
more of the witnesses at Baker's trial were accomplices to the crime
under consideration, then they should view the testimony of these
witnesses with distrust.
Here is the discussion that took place regarding
Instruction No. 9:
THE COURT: What about [Instruction]
Number 9? I mean, the State hasn't alleged an
accomplice theory, right?
PROSECUTOR: Well, ... Your Honor, for the
State's position, we're committed to the
proposition that Mr. Baker is guilty as a
principal.
THE COURT: True. So, you don't need
Number 9, right?
PROSECUTOR: ... I don't, but apparently
-- I don't know if the court would desire to
give it in relation to ...
THE COURT: Well, I'm going to deal with
that. Let me -- we don't need Number 9 in
terms of the State's theory of the case,
correct?
PROSECUTOR: I believe that's correct.
DEFENSE COUNSEL: Judge, I guess I'm just
concerned about the second to the last para-
graph. Then give it. And that's my only ...
THE COURT: Okay. But ...
DEFENSE COUNSEL: As far as [the] remain
der of the instruction ...
THE COURT: You don't care one way or the
other.
DEFENSE COUNSEL: No. Just -- you know,
once a crime has been committed, concealment of
one's knowledge does not make for an accom-
plice. A mere presence at the scene.
THE COURT: So, you don't care if I give
Number 9, if we take out that paragraph.
DEFENSE COUNSEL: Well, I want that
[paragraph] in, actually[.] That's the only
one I want in. The rest of it I don't care
about. If that makes sense.
THE COURT: Oh. Well, I'll just give 9
the way it is, then.
UNIDENTIFIED SPEAKER: All right.
THE COURT: [Turning to the next page of
the packet] The next one doesn't have a number
on it. Oh, wait a minute. That might be part
of Number 9. Anyway, it doesn't have a number
on it. That's basically (indiscernible) the
cautionary instruction concerning accomplices.
What do counsel want to do about it?
PROSECUTOR: I don't have any objection to
it.
THE COURT: The ... unnumbered one.
DEFENSE COUNSEL: The unnumbered one?
That's fine.
As can be seen from this quoted portion of the proceed-
ings, Baker's attorney voiced no objection when the trial judge
declared his intention to give the jury this accomplice liability
instruction. Nevertheless, Baker now argues on appeal that the
jury's receipt of this instruction prejudiced the fairness of his
trial.
Baker points out that the accomplice liability instruction
could be expected to play two roles during jury deliberations.
First, the instruction informed the jury of the circumstances under
which Stanfill and Frazier should be considered "accomplices", thus
obliging the jury to view their testimony with distrust. Second,
the instruction informed the jury of the circumstances under which
Baker could be held accountable for Stanfill's and Frazier's
conduct. To the extent that Instruction 9 filled the first of these
roles, Baker contends that it was unnecessary. And, to the extent
that Instruction 9 filled the second of these roles, Baker contends
that it deprived him of a fair trial.
Baker concedes that, because Stanfill and Frazier were
self-admitted accomplices to the robbery, Baker wished the jury to
be told that their testimony should be viewed with distrust.
However, Baker contends that this could have been done without
informing the jury of all the rules regarding accomplice liability.
Baker suggests that, since the two men's complicity was undisputed,
the trial judge could simply have instructed the jury that, as a
matter of law, Stanfill and Frazier were accomplices. See Mahle v.
State, 371 P.2d 21, 25 (Alaska 1962), as later clarified in Flores
v. State, 443 P.2d 73, 78-79 (Alaska 1968).
Standing by itself, this objection to the instruction is
meritless. Both Stanfill and Frazier confessed on the stand to
participating in the robbery. Regardless of whether the trial judge
might have instructed the jury that Stanfill and Frazier were
accomplices as a matter of law, the jurors clearly reached the same
conclusion when they applied the test set forth in Instruction 9.
Baker's main objection to Instruction 9 is that it allowed
the jury to convict him of robbery under a complicity theory even
after the prosecutor announced that the State viewed Baker as a
"principal", not an "accomplice". (EN2) Baker points out that, in
the portion of the proceedings quoted above, the prosecutor assured
the trial judge that an accomplice liability instruction was not
necessary under the State's theory of the case.
Based on this exchange between the prosecutor and the
court, Baker argues that the accomplice liability instruction was
intended solely to inform the jury that Stanfill's and Frazier's
testimony should be distrusted, and that the instruction was not
intended to flesh out the law relating to Baker's criminal liability
for the robbery. Baker asserts that both his attorney and the trial
judge failed to perceive that Instruction 9 supplemented the jury's
instructions concerning the scope of Baker's criminal liability.
Baker further asserts that the fairness of his trial was prejudiced
when the prosecutor, during final argument, suggested to the jury
that Baker could be convicted of robbery even if the State failed
to prove that Baker was the man who struck Seymour, so long as the
State proved that Baker was one of the three robbers.
The prosecutor's main theory during final argument was
that Baker had been the robber who struck Seymour. However, the
prosecutor also suggested a fall-back position:
[W]hen you plan a robbery, when you talk
about it and you go with your cohorts, and
either by your presence or [by] what you do you
help them out -- if you encourage, and aid and
abet, in any way, the people who participate --
they're all just as guilty. In this case, the
question is, ... who [was] the one that did the
punching? Let's presume ... that you believe
that Don Baker was there, and he wasn't the one
who did the hitting, but he [was] just the one
that did the grabbing of the pizza. We submit
that's not the case. But if you choose to
believe that it was Jason Frazier who did the
hitting, [if] you believe that Don Baker was
there and ... all he did was grab pizza and
run, he's just as guilty. He's just as guilty.
And he must be found guilty, if that's what you
find. We [nevertheless] submit to you that
what he did, in his participation, was to wear
that ski mask and punch James Seymour. That
was his part.
Baker's attorney did not object to this argument. In
fact, during his own ensuing argument to the jury, Baker's attorney
reminded the jury of the prosecutor's argument and suggested that
the prosecutor, by raising accomplice liability, was "doing a little
backing and filling" because the State had a "very, very weak case".
Defense counsel's main contention was that Baker had not
participated in the robbery at all. However, the defense attorney
also addressed Instruction No. 9 and accomplice liability in his
closing argument:
Lest I forget -- and this instruction is
given to you primarily as a way of dealing with
the testimony of ... of Mr. Frazier and Mr.
Stanfill. But, this is important, because of
recent attempts at backing and filling, as
detected from [the prosecutor's] opening
comments here today. Instruction Number 9.
Mere foreknowledge ... of the criminal plans of
others, and concealment of that knowledge,
alone will not suffice for accomplice liabili-
ty, will not suffice to make somebody guilty of
a crime. The instruction goes on to say that
once a crime has been committed, concealment of
one's knowledge of the crime does not make one
an accomplice. Mere presence at the scene of
the crime is not, in itself, enough to make one
an accomplice. This may be of some signifi-
cance to you in arriving at a verdict in this
case, because of a potential attempt on the
part of [the prosecutor] to deviate from what
he has announced quite clearly as his theory of
this case, in terms of what he says -- what he
said he was going to prove that my client did.
On appeal, Baker contends that even though his trial
attorney failed to object to the wording of Instruction 9 and failed
to object to the prosecutor's argument concerning accomplice
liability, it was nonetheless plain error to allow the jury to
consider Baker's guilt under a complicity theory after the State had
announced that it viewed Baker solely as a principal.
When the issue is whether the government's proof at trial
varied from the theory presented at grand jury, many courts hold
that a defendant who fails to object at trial to the purported
variance will be deemed to have waived any such claim. See United
States v. Garguilo, 554 F.2d 59, 63 (2nd Cir. 1977); Harrison v.
Commonwealth, 559 S.W.2d 744, 745 (Ky. App. 1977). We need not
decide whether to adopt such a rule in this case because, even
evaluating Baker's claim under a plain error standard, Baker has
failed to show plain error.
The Distinction Between Principals and Accessories at Common
Law, and the Alaska Law Abolishing this Distinction
The common-law distinction between principals and
accessories was abrogated in Alaska almost 100 years ago. On March
3, 1899, the United States Congress enacted "An Act to punish crimes
in the District of Alaska and to provide a code of criminal
procedure for said district". Ch. 429 Laws 1899. Section 58 of
that earliest Alaska criminal code provided þ in fact, mandated þ
that "all persons concerned in the commission of a felony ... be
indicted [and] tried ... as principals":
That the distinction between an accessory
before the fact and a principal, and between
principals in the first and second degree in
cases of felony, is abrogated, and all persons
concerned in the commission of a felony,
whether they directly commit the act consti-
tuting the crime or aid and abet in its com-
mission, though not present, must be indicted,
tried, and punished as principals, as in the
case of a misdemeanor.
Thomas H. Carter, Laws of Alaska (1900), Code of Criminal Procedure,
Section 58. With no change in language, this provision was
recodified in  2167 Compiled Laws of Alaska 1913, and again in
 5228 Compiled Laws of Alaska 1933, and again in  66-9-23 Alaska
Compiled Laws Annotated 1949. Following statehood, this provision
was carried forward (with a slight modification of its wording) as
AS 12.15.010. (The text of former AS 12.15.010 is quoted in Ransom
v. State, 460 P.2d 170, 172 n.5 (Alaska 1969).)
To understand what this statute was designed to do, we
must briefly review the common law defining the parties to a crime.
At common law, a person who personally committed the actus reus of
the crime was a "principal in the first degree". Any person who was
present at the commission of the crime and who aided or abetted the
commission of the crime was a "principal in the second degree".
Anyone who aided or abetted the crime before it was committed and
who was not present at the commission of the crime was an "accessory
before the fact". R. Perkins & R. Boyce, Criminal Law (3rd ed.
1982), pp. 735-748.
At common law, "the distinction between principals in the
first degree and those in the second degree [was] one of fact rather
than of legal consequence". Perkins & Boyce, p. 738. A defendant
who was indicted as a principal in the first degree could be
convicted even though the proof established that he acted as a
principal in the second degree, and vice-versa.
It [was] not necessary for the [indictment] to
disclose whether the defendant [was] a princi
pal in one degree or the other. A principal in
the second degree [could] be charged in the
indictment either as having committed the
felony or as having been present aiding and
abetting another in the commission thereof, and
if the indictment specifically charge[d] one as
the perpetrator and the other as the abettor,
both [could] be convicted although the proof
establishe[d] that the one charged as abettor
was in fact the perpetrator, while the other
was present aiding and abetting him.
Perkins & Boyce, p. 752.
However, the common law required that an indictment
clearly specify whether a defendant acted as a principal or an
accessory. A defendant might escape criminal liability altogether
by creating a reasonable doubt as to whether he had been a principal
or an accessory (i.e., whether he had been present at the commission
of the crime or not). Id., pp. 754-55. The statutory abrogation
of the distinction between principals and accessories was intended
to change this rule of pleading and to avoid this potential result.
Applying these common-law definitions to Baker's case, if
Baker was one of the three men who waited in ambush for the pizza
delivery person, then he was a principal in the robbery. If Baker
either struck the delivery person or helped to carry away the
pizzas, he was a principal in the first degree þ since the actus
reus of robbery requires both an assault and the taking (or
attempted taking) of property. See AS 11.41.510(a). If Baker was
present but only provided aid or encouragement to the enterprise,
then he was a principal in the second degree.
As just explained, the common law saw no legal distinction
here. A common-law indictment would not have needed to specify
which of these roles Baker played. And at trial, as long as the
State established that Baker was present at the commission of the
robbery and either personally performed some part of the actus reus
or aided or abetted those who did, Baker could be convicted of the
robbery.
The result would have been the same under Alaska's former
statutes abrogating the distinctions between principals and
accessories. In Scharver v. State, 561 P.2d 300 (Alaska 1977), the
defendant was indicted for burglary; the State's theory was that
Scharver, along with two cohorts, had broken into a warehouse.
Scharver, who was captured as he fled from the scene of the crime,
asserted that he was innocent. Scharver admitted that his two
friends had spoken about burglarizing the warehouse, and Scharver
also admitted that he accompanied his two friends to the warehouse.
However, Scharver insisted that he did not go inside and that he did
not assist his companions in their criminal endeavor. Id. at 301.
As recited in the supreme court's opinion, "the indictment
charged Scharver as a principal" in the burglary. Id. at 302.
Apparently, the judge at Scharver's trial allowed the case to go to
the jury under the alternative theory that, even if Scharver did not
enter the warehouse, he might still be an accessory to the burglary.
This led Scharver's attorney to call for dismissal of the indict-
ment:
Defense counsel maintained that, if ...
Scharver was merely an accessory, [then] the
prosecution's failure to give notice as to the
theory under which it intended to try Scharver
was reversible error.
Scharver, 561 P.2d at 302. (EN3) Scharver's attorney also asked
the superior court to enter a protective order barring the
government from introducing evidence "at variance with the
indictment" þ i.e., evidence that Scharver aided or abetted the
burglary. Id. at 302 n.10. The supreme court rejected Scharver's
argument:
Alaska's statutory law as well as our
prior decisions in this area require rejection
of appellant's assertion of error. AS 12.-
15.010 [abrogates] ...
[t]he distinction between an accesso-
ry before the fact and a principal,
and between principals in the first
and second degree[;] and all persons
concerned in the commission of a
crime, whether they directly commit
the act constituting the crime or ...
aid and abet in its commission, shall
be prosecuted, tried, and punished as
principals.
Scharver's counsel maintains that the abroga-
tion of the distinction between accessories and
principals ... applies only to punishment. We
think this position is untenable[,] and we
agree with the state's contention that to
"prosecute" one as a principal includes charg
ing him as a principal. ... [W]e have previ-
ously held that an accused who is indicted as
a principal is subject to conviction upon
evidence which shows that he only aided and
abetted. [See] Ransom v. State, 460 P.2d 170,
172 (Alaska 1969)[.]
Scharver, 561 P.2d 302. The supreme court reaffirmed this principle
of law in Morris v. State, 630 P.2d 13, 15-16 (Alaska 1981):
[Even though the defendant understood the
indictment to charge him as a principal, not an
accessory] there is no distinction between
princip[al]s and accomplices under Alaska law.
... The indictment, therefore, was sufficient
to put Morris on notice that he could be found
liable under evidence showing that he was a
principal or under evidence showing that he
only acted as an accomplice. See Scharver v.
State, 561 P.2d 300, 302 (Alaska 1977). Morris
does not contend that he was misled as to what
facts the state intended to prove, only that he
thought those facts were going to be used under
instructions which would omit mention of
accomplice liability. Thus, we conclude that
there was no error.
Thus, for almost a century, Alaska law has recognized no
distinction between principals and accessories þ no distinction in
the manner they are charged, tried, or punished. Both this court
and the Alaska Supreme Court have repeatedly declared "that a
defendant charged as a principal may be convicted as an [accessory,
and] the converse is also true." Miller v. State, 866 P.2d 130, 137
(Alaska App. 1994), citing Scharver v. State, 561 P.2d at 302. See
Totemoff v. State, 866 P.2d 125, 129 (Alaska App. 1993) (the jury
need not unanimously agree on whether the defendant participated in
the crime as a principal or an accessory), reversed on other
grounds, ___ P.2d ___, Opinion No. 4236 (Alaska, August 7, 1995).
Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law
(1986),  6.6(d)(2), Vol. 2, p. 131. (EN4)
When the Alaska Legislature revised the criminal code in
1980, it abandoned the labels "principal" and "accessory" in favor
of a more straightforward approach. Former AS 12.15.010, the
statute abrogating the distinction between principals and accesso
ries, was repealed. See  21, ch. 166 SLA 1978. In its place,
AS 11.16.100 states the general rule of criminal liability without
reference to the terms "principal" and "accessory":
A person is guilty of an offense if it is
committed by the person's own conduct[,] or by
the conduct of another for which the person is
legally accountable under AS 11.16.110, or by
both.
The legislative commentary to this statute explains:
AS 11.16.100 restates the basic principle
of criminal law that criminal liability is
based upon conduct. When liability exists, it
is immaterial whether the elements of the crime
are satisfied by the defendant's own behavior,
or by the behavior of another person for which
he is accountable[,] or by both.
1978 Senate Journal, Supplement No. 47 (June 12), p. 1.
Thus, while Alaska law no longer uses the terms "princi
pal" and "accessory" to describe the theories under which a person
may be held responsible for a crime, we readily conclude that the
revised criminal code was not intended to reintroduce the distinc
tions between principals and accessories before the fact. Under
Alaska's current criminal code, just as under Alaska's former
criminal law, when an indictment alleges that the defendant
personally committed the acts constituting the crime, the defendant
is on notice that he or she may also be convicted under a theory of
accomplice liability if the State establishes that the defendant is
responsible for the acts of others under AS 11.16.110.
Baker nevertheless argues that once the prosecutor
announced his theory of the case (that Baker was the one who struck
the robbery victim), Baker was entitled to have his case submitted
to the jury without reference to any theory of accomplice liability.
Baker relies on the Alaska Supreme Court's decision in Michael v.
State, 805 P.2d 371 (Alaska 1991).
In Michael, the defendant and his wife were indicted for
assaulting their child. Because it was unclear which spouse
actually attacked the child, Michael was indicted both as a
principal and, alternatively, as an accessory. At trial, the State
relied on yet another theory of culpability: that even though
Michael did not strike the child and even though he neither aided
nor abetted his wife's abuse of the child, Michael could neverthe
less be convicted of assault for failing to perform his parental
duty to protect the child from the assaults of others (that is, for
failing to take action when he knew that another person was
assaulting the child). Michael objected that this theory of
liability varied materially from the theories considered by the
grand jury. The superior court overruled Michael's objection and,
ultimately, convicted him under this theory.
This court upheld Michael's conviction. See Michael v.
State, 767 P.2d 193, 201-03 (Alaska App. 1988). This court assumed,
for purposes of argument, "that it was necessary for the state to
present [this breach-of-duty theory of liability] to the grand
jury". Nevertheless, this court concluded that the evidence before
the grand jury had supported this theory of prosecution and that the
prosecutor had mentioned a parent's duty to protect a child. Thus,
this court concluded, Michael had been on notice that he might be
convicted under this alternative theory. Id. at 202.
The supreme court disagreed. The court ruled that, even
though "Michael's failure to carry out his parental duty was clear
from the [grand jury] evidence", and even though "the district
attorney handling the case ... told the grand jury that one in
Michael's position could be guilty of assault for failing to protect
his child", "[t]he fact remains ... that the grand jury made no such
charge in the indictment". Michael, 805 P.2d at 374.
Michael is distinguishable from Baker's case. The legal
question presented in Michael was whether an indictment charging a
parent with participating in an assault on his or her child (either
as a principal or an accessory) should be construed to include the
alternative theory that the parent was guilty for failing to protect
the child from someone else's assault. This theory of parental
liability had never been expressly recognized in Alaska until this
court's decision in Michael. The supreme court held, based on the
grand jury record in Michael's case, that Michael's indictment could
not be construed to include this theory.
Baker's case, however, presents no issue outside
traditional notions of accomplice liability. Under either of the
State's theories of this case þ that is, whether Baker personally
struck the pizza delivery man or was present only to help carry away
the pizzas þ Baker was a "principal" in the commission of the
robbery. Even at common law (before the statutory abrogation of the
distinction between principals and accessories), Baker would have
no variance claim. He certainly has none now. We reject Baker's
argument that the indictment failed to put him on notice that he
might be convicted under the rules of accomplice liability codified
in AS 11.16.110(2).
As a fall-back position, Baker asserts that even if the
indictment put him on notice that he might be convicted under an
accomplice liability theory, he was nevertheless misled when the
prosecutor announced at trial that the State viewed Baker as a
principal, not an "accomplice". (EN5) There are two major problems
with this argument.
First, Baker's trial attorney never suggested that he was
surprised or prejudiced when the jury was asked to consider Baker's
accomplice liability. As noted above, the defense attorney did not
object to Instruction 9 (which described the rules governing a
defendant's vicarious liability for the acts of others). Baker
suggests that his attorney viewed Instruction 9 as simply a way for
the jury to understand that Stanfill's and Frazier's testimony had
to be viewed with distrust; Baker asserts that his attorney failed
to perceive that Instruction 9 might also be used to determine
Baker's guilt. The record belies this claim. It is clear that
Baker's attorney perceived that accomplice liability was an issue
in the case, because he himself proposed a jury instruction on
Baker's guilt under a complicity theory. (EN6) Moreover, the
defense attorney did not object when the prosecutor explicitly
argued accomplice liability to the jury. In fact, the defense
attorney took advantage of the prosecutor's argument by asserting
that the prosecutor was now "backing and filling" in an attempt to
salvage a weak case.
Second, regardless of what the prosecutor said, it was
clear from the State's theory of the crime that the jury would have
to receive an instruction describing accomplice liability. Under
AS 11.41.510(a), the crime of robbery requires (1) an act of assault
and (2) a taking of property or an attempt to take property. Even
under the State's primary theory of the crime (that Baker struck the
pizza delivery person), it was Stanfill and Frazier who grabbed the
pizzas and ran off with them. Thus, to evaluate Baker's guilt, the
jury would necessarily have to receive instruction on the rules
governing Baker's liability for Stanfill's and Frazier's acts of
taking the property.
Alaska Criminal Rule 30(b) declares that a trial judge
"shall instruct the jury on all matters of law which it considers
necessary for the jury's information in giving their verdict".
Under this rule, and under the facts of this case, it was obvious
that the jury would have to receive instruction on accomplice
liability (despite the prosecutor's announcement that he felt no
such instruction was needed).
For these reasons, we hold that it was not error for the
trial judge to instruct the jury on accomplice liability and it was
not error for the prosecutor to argue that theory of liability to
the jury.
In a related argument, Baker contends that the State
failed to prove beyond a reasonable doubt that Baker was the one who
struck the pizza delivery person. To the extent that Baker is
asserting that the State failed to adequately corroborate Stanfill's
and Frazier's testimony that Baker was the third robber, this
contention is addressed in the next section of this opinion. To the
extent that Baker is asserting that the evidence did not allow the
jury to resolve, beyond a reasonable doubt, whether Baker was the
one who struck the delivery person or was, instead, one of the other
two non-assaulting robbers, the answer to Baker's argument is that
it was not necessary for the jury to resolve this issue. Perkins
& Boyce, supra, p. 752; Totemoff v. State, 866 P.2d at 129. (EN7)
See also State v. James, 698 P.2d 1161 (Alaska 1985).
Baker next argues that, even if it was proper to instruct
the jury on accomplice liability, the particular instruction that
was given (Instruction 9) was flawed. Because Baker did not object
to this instruction at trial, he must prove plain error. Estate of
McCoy, 844 P.2d 1131, 1134 (Alaska 1993); Haskins v. Shelden, 558
P.2d 487, 492 (Alaska 1976); see Colgan v. State, 711 P.2d 533, 534
(Alaska App. 1985). The test for plain error in this context is
explained in McCoy:
Plain error will be found only when an erro-
neous instruction creates "a high likelihood
that the jury followed an erroneous theory[,]
resulting in a miscarriage of justice." Holiday
Inns of America, Inc. v. Peck, 520 P.2d 87, 91
(Alaska 1974). As this court more recently
stated, the þultimate determination in analyz-
ing plain error in jury instructions is simply
whether a correct instruction would have likely
altered the result. Conam Alaska v. Bell
Lavalin, 842 P.2d 148, 153 (Alaska 1992)
(citations omitted).
Estate of McCoy, 844 P.2d at 1134.
Baker contends that Instruction 9 gave the jury only "a
broad definition of accomplice liability", that this instruction
failed to focus the jury on "the elements of the offense of robbery
under an accomplice theory", and that this instruction "did not
instruct the jury that they must be unanimous as to all the elements
of the offense" and that the State "must prove all elements of the
offense under an accomplice theory beyond a reasonable doubt".
The elements of robbery remain the same whether the act
of robbery is committed personally by the defendant or by another
for whose conduct the defendant is accountable. If the State
intends to prove the defendant's guilt of robbery by relying on
AS 11.16.110(2) to establish the defendant's accountability for acts
performed by another person, the State must additionally prove the
elements listed in AS 11.16.110(2): that the defendant solicited
the other person to commit the offense, or aided or abetted the
other person in planning or committing the offense, or caused an
innocent person to engage in the proscribed conduct; and that the
defendant did so "with intent to promote or facilitate the
commission of the offense".
While Instruction 9 does not track the language of
AS 11.16.110(2), it adequately informed the jury of the elements of
complicity liability. The instruction told Baker's jury:
Responsibility for the crime of another
will attach only upon a showing that an indi-
vidual had knowledge of the criminal enterprise
and specifically intended by his/her conduct,
to aid, abet, assist, or participate in the
criminal enterprise. ... [I]t is necessary
that the person ... participate in [the ven-
ture] as ... something that he or she wishes to
bring about, and that the person seek by his or
her actions to make it succeed. An accomplice
shares the perpetrator's specific intent when
he or she knows the full extent of the perpetr-
ator's criminal purpose and gives aid or
encouragement with the intent or purpose of
facilitating the perpetrator's commission of
the offense.
This is essentially the same instruction that we held not to be
plain error in Hansen v. State, 845 P.2d 449, 459 (Alaska App.
1993). We adhere to our prior ruling; it was not plain error for
the trial judge to give Instruction 9 in Baker's case.
It is true, as Baker points out, that Instruction 9 does
not specifically state that these elements of complicity must be
proved beyond a reasonable doubt. However, jury instructions are
not to be viewed in isolation; instead, we must assess the group of
instructions as a whole. See Guertin v. State, 854 P.2d 1130, 1133
(Alaska App. 1993) (jury instructions are to be "read as a whole and
in a common-sense manner"); Coney v. State, 699 P.2d 899, 905
(Alaska App. 1985) (disapproving a specific instruction but finding
that the instructions, read as a whole, cured the error).
In Baker's case, Instruction 15 told the jury that they
had to be "satisfied beyond a reasonable doubt of the defendant's
guilt", and that "[t]he burden of proving the defendant guilty
beyond a reasonable doubt always rests upon the prosecution [and]
never shifts [during] the trial". Instruction 9 does not address
the burden of proof; it thus contains nothing to contradict the
mandate of Instruction 15. Regarding the requirement of unanimity,
Instruction No. 26 told the jury that their verdict must be
"unanimously agreed upon". We conclude that there was no plain
error in these jury instructions.
Did the State Adequately Corroborate the Testimony
of Accomplices Stanfill and Frazier?
In Alaska, a criminal defendant may not be convicted based
solely on the testimony of an accomplice to the crime. AS 12.45.020
declares:
A conviction shall not be had on the
testimony of an accomplice unless it is cor-
roborated by other evidence that tends to
connect the defendant with the commission of
the crime[.]
In Brown v. State, 693 P.2d 324 (Alaska App. 1984), this court
explicated this legal rule:
[I]n determining the sufficiency of corrobo-
rating evidence, the evidence need not be
considered "by itself and without the aid of
the testimony of the accomplice." To meet the
statutory requirement, the state must show no
more than that the corroborating evidence
strengthens or confirms the testimony of the
accomplice; it must induce "in the mind of the
jurors a rational belief that the accomplice
was speaking the truth when he implicated the
defendant in the criminal event."
Brown, 693 P.2d at 329 (quoting Oxenburg v. State, 362 P.2d 893, 897
(Alaska 1961), cert. denied, 368 U.S. 56 (1961)).
Baker argues that, although the State may have proved that
a robbery occurred, the State failed to corroborate Stanfill's and
Frazier's testimony that the third participant in the robbery was
Baker. He points out that the victim of the robbery was unable to
identify the man who struck him, other than to assert that it was
a light-complexioned black man wearing a ski mask.
We assume, for purposes of deciding this case, that the
testimony of one accomplice can not be used to corroborate the
testimony of another. Nevertheless, we conclude that the State
presented sufficient corroborating evidence to support Baker's
conviction.
Although the victim of the robbery (James Seymour) could
not identify Baker, he did corroborate Stanfill's and Frazier's
testimony that there was a third robber who wore a ski mask.
Stanfill's sister testified that Stanfill, Frazier, and Baker were
together at the Stanfill apartment shortly before the robbery
occurred. She also stated that the three men returned to the
apartment together and at that time Stanfill and Frazier were
carrying four large pizzas. Stanfill's mother testified that, while
visiting a neighbor, she heard a report of the robbery and returned
home; there she found Stanfill, Frazier, and Baker, along with the
fresh remains of the pizzas.
Using the test set forth in Oxenburg and Brown, we
conclude that this evidence was sufficient to support a rational
belief that Stanfill and Frazier were speaking the truth when they
implicated Baker in the robbery. Non-accomplice testimony supported
the assertion that there was a third robber, it placed Baker in the
company of Stanfill and Frazier both shortly before and immediately
after the robbery, and it established that Baker accompanied
Stanfill and Frazier when the three men returned to the apartment
to enjoy the fruits of the robbery. See Gill v. State, 873 S.W.2d
45, 48-49 (Tex. Crim. App. 1994); Cockrum v. State, 758 S.W.2d 577,
581-82 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1072; Jackson
v. State, 451 So.2d 435, 437 (Ala. 1984).
Baker's Sentence Appeal
Baker challenges the sentence he received for the crime
of second-degree robbery. Second-degree robbery is a class B
felony. AS 11.41.510(b). Because Baker was a third-felony offender
for presumptive sentencing purposes, he faced a presumptive term of
6 years' imprisonment. AS 12.55.125(d)(2). The superior court
found two aggravating factors: that the victim of the robbery had
sustained physical injury, AS 12.55.155(c)(1), and that Baker was
on felony probation when he committed the robbery, AS 12.55.-
155(c)(20).
Just before he was sentenced in the present case, Baker
was sentenced to a composite term of 6 years, 10 months' imprison
ment in two unrelated cases. Because he had already received this
substantial term of imprisonment, Baker asked Superior Court Judge
Jay Hodges to make his robbery sentence concurrent with the
sentences for his other crimes. However, Judge Hodges sentenced
Baker to an additional 3 years to serve. Thus, Baker's total
sentence is 9 years, 10 months' imprisonment.
On appeal, Baker renews his argument that Judge Hodges
should have given him a completely concurrent sentence þ that it was
clearly mistaken to impose any portion of his robbery sentence
consecutively to his previous sentences for his other crimes. We
do not agree. Baker was on felony probation when he committed this
robbery. That probation had been repeatedly revoked, both for drug
use and for new crimes. Moreover, while Baker was on bail release
awaiting trial for this robbery, he committed yet another felony
(first-degree burglary). Judge Hodges found that Baker's potential
for rehabilitation was "guarded ... at best", and that Baker's role
in the robbery, his willingness to inflict injury on the victim, and
his history of felonies all supported the finding that Baker
constituted a "danger to the public". Judge Hodges concluded that
additional time to serve was required in order to deter Baker from
future crimes as well as to affirm societal norms.
Baker does not seriously contest Judge Hodges's findings.
Instead, he rests his case on the fact that his longest previous
sentence was 2« years' imprisonment. Baker argues that, before the
superior court could sentence him to a composite term of approxi-
mately 10 years' imprisonment, the court was obliged to first try
a lesser sentence þ in this case, 6 years, 10 months. Baker argues
that this lesser sentence would have adequately protected the
public.
Given Baker's record and Judge Hodges's findings, we
conclude that Judge Hodges was not clearly mistaken when he
sentenced Baker to an additional 3 years to serve for the robbery
in this case. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Conclusion
The judgement of the superior court is AFFIRMED.
ENDNOTES:
1. As explained in more detail later in this opinion, the common
law classified the parties to a crime into three categories:
"principals in the first degree" (persons who personally committed
the actus reus of the crime), "principals in the second degree"
(aiders or abettors who were present at the commission of the
crime) and "accessories before the fact" (aiders or abettors who
were not present at the commission of the crime). The term
"accomplice" was a broader term that referred to any person
punishable for the crime (that is, all principals and all
accessories before the fact). R. Perkins & R. Boyce, Criminal Law
(3rd ed. 1982), p. 727. Or, in the words of Alaska Pattern
Criminal Jury Instruction 1.20, an accomplice is "[any] person who
in some manner ... aids, abets, assists, or participates in a
criminal act" with the requisite culpable mental state(s).
The phrase "accomplice liability" refers to the rule that a
defendant, if he or she is found to have been an accomplice to a
crime, can be held vicariously responsible for the acts of any
other accomplice.
2. As explained in footnote 1, the common law used the term
"accomplice" to encompass any party to a crime, whether a principal
or an accessory. The prosecutor at Baker's trial apparently was
using "accomplice" to mean any person who did not personally commit
the actus reus þ in common-law terminology, either a "principal in
the second degree" or an "accessory before the fact". This same
use of the word "accomplice" is found in judicial decisions. For
example, in Morris v. State, 630 P.2d 13, 15-16 (Alaska 1981), the
Alaska Supreme Court stated that "there is no distinction between
princip[al]s and accomplices under Alaska law. ... The indictment,
therefore, was sufficient to put Morris on notice that he could be
found liable under evidence showing that he was a principal or
under evidence showing that he only acted as an accomplice."
3. The defense attorney's argument had no basis at common law.
Even if Scharver had not entered the warehouse but had merely stood
guard outside while his friends burglarized the premises, Scharver
would still be a principal (in the second degree), not an
accessory, because he was "present" at the commission of the crime:
In the words of Blackstone, often quoted
by the courts, "presence need not always be an
actual and immediate standing by, within sight
or hearing of the fact; but there may be also
a constructive presence, as when one commits a
robbery or murder, and another keeps watch or
guard at some convenient distance." ... The
typical example of constructive presence is
that of a "sentinel" stationed outside to
watch, while his associates enter a building
for the purpose of robbery or burglary.
Perkins & Boyce, p. 741.
As explained above, the rules of common-law pleading did not
require the government to specify whether a defendant was a
principal in the first or a principal in the second degree. Thus,
even at common law, Scharver had no variance claim.
4. See also United States v. Peterson, 768 F.2d 64 (2nd Cir.
1985), cert. denied 474 U.S. 923; Lampkins v. Gagnon, 539 F.Supp.
359 (E.D. Wis. 1982), aff'd 710 F.2d 374 (7th Cir. 1983), cert.
denied, 464 U.S. 1050 (1984); State v. Moriarty, 742 P.2d 704 (Ore.
App. 1987); State v. McInelly, 704 P.2d 291, 293 (Ariz. App. 1985);
State v. Wheeler, 711 P.2d 741 (Idaho App. 1985); State v. Wixon,
631 P.2d 1033 (Wash. App. 1981); People v. Naranjo, 612 P.2d 1106,
1109 (Colo. 1980); Bowen v. State, 606 P.2d 589 (Okla. Crim. 1980);
Holland v. State, 280 N.W.2d 288 (Wis. 1979), cert. denied 445 U.S.
931 (1980); Neilson v. State, 599 P.2d 1326 (Wyo. 1979), cert.
denied, 444 U.S. 1079 (1980); People v. Pepper, 568 P.2d 446, 449
(Colo. 1977); People v. Burgess, 240 N.W.2d 485 (Mich. App. 1976);
State v. Carothers, 514 P.2d 170 (Wash. App. 1973), aff'd 525 P.2d
731 (Wash. 1974), overruled on other grounds in State v. Harris,
685 P.2d 584 (Wash. 1984); People v. Ruscitti, 190 N.E.2d 314 (Ill.
1963).
5. As explained above, even if Baker did not strike the pizza
delivery man, he remained a "principal" (as that term was defined
at common law) so long as he was present at the commission of the
robbery and, acting with the requisite culpable mental state, he
aided or abetted that crime. It appears that when the prosecutor
stated that he viewed Baker as a "principal", he was not referring
to this common-law definition but rather was expressing his view
that Baker was the one who struck the delivery person. However, as
noted earlier in this opinion, robbery requires an assault and a
taking (or attempted taking) of property. Under the State's theory
of the case, no single defendant committed the entire robbery.
Rather, Baker struck the delivery person and Stanfill and Frazier
took the pizzas. Thus, they were all "principals in the first
degree": each of the three men personally committed a portion of
the actus reus.
6. Defendant's Proposed Instruction No. 6 read:
A person is legally accountable for the conduct of
another person constituting an offense if, with intent to
promote or facilitate the commission of the offense, the
person aids or abets the other person in planning or
committing the offense.
In order to establish that Don L. Baker is legally
accountable in this case, the State must prove beyond a
reasonable doubt the following:
First, that the event in question occurred at or
near Fairbanks and on or about February 22, 1993;
Second, that the defendant acted with intent to
promote or facilitate the commission of the offense; and
Third, that the defendant aided or abetted another
person in planning or committing the offense.
If you find from your consideration of all the
evidence that each of these propositions has been proved
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 proved beyond a reasonable
doubt, then you shall find the defendant not guilty.
7. See also United States v. Peterson, 768 F.2d 64; Lampkins v.
Gagnon, 539 F.Supp. 359; State v. Wixon, 631 P.2d 1033; Holland v.
State, 280 N.W.2d 288; People v. Burgess, 240 N.W.2d 485; State v.
Carothers, 525 P.2d 731.
