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Cook v State (10/26/2001) ap-1770
Cook v State (10/26/2001) ap-1770
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DONDI J. COOK, )
) Court of Appeals No. A-7565
Appellant, ) Trial Court No. 4FA-98-4023 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1770 October 26, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Richard D. Savell, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Nancy R. Simel, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Dondi J. Cook appeals his conviction for first-degree
stalking (stalking committed by acts that violated a domestic
violence protective order). [Fn. 1] He argues that the case against
him should be dismissed with prejudice because he was not brought
to trial within the time limits of Alaska Criminal Rule 45. In the
alternative, Cook argues that he should receive a new trial because
his trial judge was biased against him, or created a reasonable
appearance of being biased against him, and thus should have been
removed from the case.
In addition, Cook argues that his trial was flawed because
(1) the judge gave the jury a misleading instruction on the elements
of stalking, (2) the judge failed to require the jury to reach
unanimous agreement on what exactly Cook did to merit a stalking
conviction, (3) the judge improperly required the defense attorney
to apprise the jury of a clause in a restraining order that was less
favorable to Cook's position than another portion that the defense
attorney had just read, (4) the judge violated Alaska Evidence Rule
404(b) by allowing the State to introduce evidence of Cook's other
wrongful acts when this evidence had no relevance other than to show
Cook's bad character, and (5) the judge allowed the prosecutor to
engage in improper argument during summation.
Finally, Cook argues that we should modify the Austin rule
(a rule limiting the sentences that first felony offenders may
ordinarily receive for class B and class C felonies). The Austin
rule currently focuses primarily on the amount of jail time that a
defendant is required to serve (as opposed to jail time that is
suspended). Cook contends that we should expand the rule so that
a defendant's suspended jail sentence is also taken into account,
particularly when the defendant receives a substantial amount of
time to serve.
For the reasons explained here, we reject each of Cook's
claims and we affirm his conviction.
Synopsis of the facts
Dondi Cook had a romantic relationship with K.A.B., but
this relationship soured and K.A.B. broke off the relationship.
Despite the fact that their romantic connection had ended, K.A.B.
and her three minor children continued to live with Cook in Fox
during the summer of 1998. As the summer progressed, Cook began to
display moods and conduct that frightened K.A.B.; she feared not
only for her own safety, but also for the safety of her children.
In the fall of 1998, Cook's mood swings became
progressively worse, so K.A.B. made plans to move out of the house.
According to K.A.B., Cook became suicidal and threatened to kill
both himself and his dog. In fact, on one occasion he asked
K.A.B.'s oldest daughter, K.B., to pull the trigger of his shotgun
while the barrel of the weapon was in his mouth.
Later that evening, after Cook had calmed down, K.A.B.
agreed to go into Fairbanks with him. They visited several of the
downtown bars. Although Cook had previously agreed that they would
call a cab if they consumed too much alcohol, Cook became upset when
K.A.B. insisted that they call a cab. He assaulted K.A.B. while
they were arguing over this matter. When K.A.B. ran inside one of
the bars to call a cab, Cook followed her. He threatened to report
her to the Division of Family and Youth Services (i.e., to report
that she was neglecting her children, so that DFYS would take them).
After K.A.B. called a cab, she telephoned her children and told them
that she and they were moving to a women's shelter, so they should
get ready to go.
When K.A.B. returned to the house that she shared with
Cook, he threatened her and tried to block her from leaving. As
K.A.B. and her children were leaving in the cab, Cook tried to stop
the cab from departing. He jumped on the hood of the vehicle, held
onto the windshield wipers, and smashed the windshield with a rock.
On the day after K.A.B. arrived at the shelter, she
obtained an ex parte twenty-day domestic violence protective order
against Cook. This order prohibited Cook from having any contact
with K.A.B. except through the courts, an attorney, or by mail.
Twelve days later, on October 27, 1998, K.A.B. obtained a six-month
protective order against Cook. (Cook was present at this hearing.)
The October 27th order contained the same restrictions as the
earlier one, and it additionally forbade Cook from approaching
within 100 feet of K.A.B. or
[from] telephon[ing], contact[ing], or
otherwise communicat[ing] directly or indirectly with [K.A.B.]
except: through an attorney or by U.S. mail.
As will be explained later in this opinion, this clause became the
subject of dispute at Cook's trial.
Cook began staying with Danny Ore, who was a friend of
both Cook's and K.A.B.'s. Cook convinced Ore to act as a "go-
between" to tell K.A.B. that Cook wanted to talk to her and get
back together. In late November, Ore brought K.A.B. a stack of mail
that he had been collecting for her. Along with the mail, Ore
delivered an envelope that contained Cook's ponytail, a box
containing jewelry that Cook had purchased for K.A.B., and a letter
from Cook. (This letter did not contain a postmark; it apparently
had never been sent through the mail.) In his letter, Cook asked
K.A.B. to come back to him, and he asked her to marry him.
In December, K.A.B. and her children were visiting Ore
when one of K.A.B.'s children discovered a letter that Cook had
written to K.A.B.; this letter was hidden in a box of Legos that was
being stored at Ore's house. In this letter, dated October 27, 1998
(the day on which the six-month protective order was issued), Cook
told K.A.B. that he still loved her.
K.A.B. subsequently moved into an apartment and obtained
an unpublished phone number. Just before Christmas, Ore told K.A.B.
that Cook wanted to spend the holidays with her and her children,
and that Cook wanted to speak to her. Beginning at 2:00 a.m. the
following day, Cook left a series of seven telephone messages for
K.A.B.; some of these were also directed toward K.A.B.'s younger
daughter. K.A.B., accompanied by Ore, went to the police station
the next morning to report these calls. Cook called again while
K.A.B. was at the police station.
On December 22nd, the police arrested Cook for violating
the October 27th protective order. Following his arrest, Cook again
violated the protective order by calling K.A.B. from jail.
Cook was charged with first-degree stalking, AS
11.41.260(a), for his non-consensual contacts with K.A.B. and her
children between October 27th and December 22nd i.e., the contacts
that occurred after the issuance of the six-month domestic violence
protective order. On February 22, 1999, while he was still in jail
on this charge, Cook violated the protective order again by sending
K.A.B. a letter in which he once more protested his love for her and
his desire to reconcile with her.
In early April 1999, Cook and the State informed Fairbanks
Superior Court Judge Richard D. Savell that they had reached a plea
and sentence agreement. Cook pleaded no contest in the expectation
that he would receive a sentence of 1 year's imprisonment, all
suspended except the time he had served. But seven weeks later, on
May 21st, Judge Savell rejected the proposed sentencing agreement
because he believed that it was too lenient. On June 4th, Cook
decided to withdraw his plea and go to trial. Cook's trial
commenced on August 2nd. The jury found Cook guilty. Judge Savell
sentenced Cook to 2 years and 8 months' imprisonment with 1 year and
4 months suspended (i.e., 1 year and 4 months to serve).
1. Cook was brought to trial within the time limits of
Criminal Rule 45
Under Alaska Criminal Rule 11(e)(1), when the parties
reach a plea bargain that limits the court's sentencing discretion,
the parties must disclose the agreement to the court. The judge may
then ratify the plea agreement, reject the plea agreement, or pursue
a third option: conditionally accept the defendant's plea pending
receipt of a pre-sentence report. Under this last alternative,
after the judge has read the pre-sentence report, the judge either
ratifies the plea bargain (in which case the defendant's plea
becomes final) or rejects the plea bargain. [Fn. 2] If the judge
rejects the bargain because it is too lenient, the defendant must
be given the opportunity to withdraw the plea. [Fn. 3]
In Cook's case, Judge Savell pursued the third option:
he conditionally accepted Cook's no contest plea pending receipt of
the pre-sentence report. Ultimately, Judge Savell rejected the
proposed sentence agreement. Cook's appeal presents the question
of how to calculate the time limit for bringing a defendant to trial
under Alaska Criminal Rule 45 when, in such circumstances, the
defendant chooses to withdraw a Rule 11 plea and go to trial.
Cook was charged with first-degree stalking in late
December 1998. A little over three months later, on April 2, 1999,
Cook and the State announced to the superior court that they had
reached a plea bargain to resolve the case. Cook would plead no
contest, and the State would accept a sentencing cap of 1 year's
imprisonment, with all of that year suspended except the time that
Cook would have served by the date of his sentencing. Cook, for his
part, would agree to a two-year term of probation and would further
agree to seek mental health treatment.
Judge Savell chose the third option offered by Rule 11(e):
he told the parties that he would reserve judgement on the plea
bargain until he had seen the pre-sentence report. Judge Savell
then advised Cook of his rights pursuant to Criminal Rule 11(c), and
Cook pleaded no contest to stalking.
Seven weeks later, at a hearing on May 21st, Judge Savell
told the parties that he believed the proposed sentence was too
lenient. The judge noted that Cook perceived himself as the victim
in the case, that Cook had become more angry since the charges were
filed, and that Cook was unwilling to take medication to control his
behavior. Judge Savell declared that these factors caused him to
have "serious doubts" as to whether the proposed sentence cap would
be sufficient to deter Cook from future misconduct. He therefore
rejected the plea agreement.
The judge gave Cook two weeks to decide whether to
withdraw his no contest plea or to persist in the plea, knowing that
his sentence would probably exceed the proposed cap. On June 4th,
Cook announced that he would withdraw his plea and go to trial.
Cook's trial began fifty-nine days later, on August 2nd.
In Mustafoski v. State, 954 P.2d 1042 (Alaska App. 1998),
this court concluded that the time for bringing a defendant to trial
under Criminal Rule 45 restarts at Day 1 whenever a defendant
announces the intention to plead guilty or no contest, then changes
their mind and renews their demand for a trial. [Fn. 4] Last year,
the supreme court amended Rule 45(c) to codify the Mustafoski
decision. [Fn. 5] Rule 45(c)(5) now reads:
Withdrawal of Plea, or Notice That
Defendant No Longer Intends to Enter a Plea of
Guilty or Nolo Contendere. When a defendant
withdraws a plea of guilty or nolo contendere,
the time for trial shall run from the date of
the order permitting the withdrawal. When a
defendant who previously informed the court of
an intention to plead guilty or nolo contendere
notifies the court that the defendant now
intends to proceed to trial, the time for trial
shall run from the date of that notification.
Cook announced on June 4th that he wished to withdraw his
no contest plea and go to trial. Accordingly, it appears that the
State had 120 days from June 4th to bring Cook to trial. But Cook
argues that neither clause of Rule 45(c)(5) governs his case.
Cook asserts that the first clause of Rule 45(c)(5)
which speaks of plea withdrawal is implicitly limited to pleas
that are offered unconditionally. Cook contends that this clause
does not apply to pleas that are offered subject to the court's
approval of a sentencing bargain under Criminal Rule 11(e).
Likewise, Cook asserts that the second clause of Rule 45(c)(5)
dealing with renunciations of a previously announced intention to
plead guilty does not govern his case either. According to Cook,
this clause also is implicitly limited to a defendant's announced
intention to plead guilty unconditionally.
We are unpersuaded by Cook's argument. Both Mustafoski
and Criminal Rule 45(c)(5) are premised on the concept that a
defendant's right to a speedy trial under Criminal Rule 45 is
satisfied when the defendant announces the intention of pleading
guilty at a future time. That is, the State's obligation to bring
the defendant to trial within the time limit specified in Rule 45
is met when the defendant announces a willingness to forego the
right to a trial. As we said in Mustafoski,
When Mustafoski told the court ... that he
intended to change his plea, Rule 45 was satisfied. For Rule 45
purposes, Mustafoski's announcement that he intended to change his
plea had the same effect as an entry of plea. [Citations omitted]
That is, the running of Rule 45 was terminated on [the day of
Mustafoski's announcement].
Mustafoski, 954 P.2d at 1044. This is why Rule 45 restarts (begins
running at Day 1) when a defendant later renounces their intention
to plead guilty and re-asserts their right to a trial.
If Rule 45 is satisfied when a defendant announces that
they intend to plead guilty in the future, it makes little sense to
have a different rule when a defendant enters a plea under Criminal
Rule 11(e). Under Rule 11(e), not only does the defendant offer an
immediate plea of guilty, but the court goes through the formal
procedure of having the defendant waive the rights to jury trial,
to confrontation of the government's witnesses, to presentation of
evidence in their own behalf, and so on. These formalities are
required because, if the judge accepts the proposed sentencing
agreement, the defendant is bound by the plea.
True, the defendant's plea is conditional in the sense
that the defendant has a right to withdraw the plea if the judge
ultimately rejects the proposed sentencing agreement. But we take
judicial notice that, in the great majority of cases, the court
accepts the proposed sentencing agreement (or accepts it with
modifications to which the parties agree). As Cook acknowledges in
his opening brief to this court, "[r]ejection of a Rule 11 agreement
is not a normal occurrence."
Even leaving this aside, the fact remains that a
defendant's informal announcement of an intention to plead guilty
at some future time is at least as conditional as a defendant's
entry of plea under Criminal Rule 11(e). For instance, in
Mustafoski, the defendant told the court that he intended to change
his plea, but he wanted to delay entering the plea until he could
find out whether a conviction would affect his immigration status.
[Fn. 6] The following month, the defendant told the court that he
and the State were still negotiating the resolution of the case.
[Fn. 7] After another two months, Mustafoski finally announced that
there would be no plea bargain and that the case would go to trial.
If this type of conditional intention to plead guilty in the future
is enough to satisfy Rule 45 (and Mustafoski holds that it is), then
a defendant's formal entry of a guilty plea under Rule 11(e) is
enough to satisfy Rule 45.
For these reasons, we hold that Rule 45 was satisfied on
April 2, 1999, when Cook pleaded no contest under Rule 11(e).
Because the rule was satisfied by the entry of Cook's plea, Rule 45
restarted at Day 1 after Cook announced on June 4th that he intended
to withdraw his plea and go to trial. Cook's trial began eight
weeks later, on August 2nd. Thus, Cook was brought to trial within
the time specified by Rule 45.
2. There was no plain error in the jury instruction
defining the crime of first-degree stalking
A defendant commits the crime of stalking as defined in
AS 11.41.270 if the defendant (1) knowingly engages in repeated acts
of non-consensual contact with the victim or members of the victim's
family, (2) acting recklessly with regard to the possibility that
these repeated contacts would cause the victim to fear that they or
a family member would suffer death or physical injury, and if (3)
the defendant's conduct in fact caused the victim to have this fear.
The State alleged that Cook's conduct constituted first-degree
stalking under AS 11.41.260(a)(1) because his acts of non-consensual
contact violated a domestic violence restraining order.
(The State also alleged that Cook's conduct constituted
first-degree stalking under AS 11.41.260(a)(2) contact in
violation of a condition of bail or probation. Cook was charged
with domestic assault under Fairbanks Ordinance 6.307(a)(1) based
on his assault on K.A.B. outside the bar. He was also charged with
third-degree criminal mischief, AS 11.46.484(a)(1), based on his
damage to the cab. As a condition of his bail in these cases and,
later, as a condition of his probation in the domestic assault case
Cook was ordered to comply with the terms of the domestic violence
protective order. However, even under this alternative theory of
prosecution, the underlying question remained whether Cook's conduct
violated the protective order.)
Without pertinent objection from Cook's attorney, Judge
Savell gave the jury the following instruction defining the elements
of first-degree stalking:
First, that the event in question occurred
at or near Fairbanks, in the Fourth Judicial District, State of
Alaska, and on or about October 27, 1998, through on or about
December 22, 1998;
Second, that Dondi J. Cook knowingly
engaged in a course of conduct;
[Another instruction informed the jury
that "course of conduct" meant "repeated acts of nonconsensual contact
involving the victim or a family member".]
Third, that the course of conduct
recklessly placed another person, K.A.B., in fear of death or
physical injury to herself or a family member;
Fourth, that the defendant recklessly
violated a Protective Order issued under AS 18.16.100 - AS 18.16.180
or a condition of probation, release before trial, release after
conviction, or parole.
Cook now claims that this instruction constituted plain error in two
different ways.
First, Cook asserts that the four listed elements are
phrased in such a disjointed manner that there is no obvious
connection between the "event" referred to in element one and the
"course of conduct" referred to in elements two and three.
Similarly, Cook asserts, there is no obvious connection between the
"course of conduct" referred to in elements two and three and the
violation of the protective order and conditions of bail and
probation referred to in element four.
Second, Cook asserts that the wording of element three
failed to communicate the concept that the State was obliged to
prove that Cook acted recklessly with regard to whether his conduct
might cause the victim to fear death or physical injury. As noted
above, element three required the jury to find that "[Cook's] course
of conduct recklessly placed another person, K.A.B., in fear of
death or physical injury to herself or a family member". Cook points
out (correctly) that a "course of conduct" does not act recklessly;
rather, it is people who act recklessly. Thus, if element three had
been worded more precisely, it would have required the jury to find
that Cook acted recklessly with regard to the possibility that his
course of conduct would place the victim in fear of death or
physical injury to herself or a family member.
But whatever the rhetorical flaws in the jury instruction,
the record of Cook's trial clearly shows that these flaws did not
affect the jury's deliberations. As we have repeatedly held,
potential mistakes (or even acknowledged mistakes) in jury
instructions can be cured by the arguments of the parties. [Fn. 8]
In Cook's case, the defense attorney told the jurors that there was
really only one issue to be decided: whether Cook acted with
reckless disregard of the possibility that his conduct might cause
the victim to fear for her safety or the safety of her children.
And both the prosecutor and the defense attorney informed the jury
of the correct legal test for determining whether Cook acted
recklessly.
Early in her opening summation, the prosecutor told the
jury that any criminal charge requires proof of a culpable mental
state: "The law [specifies] some mental state that has to be in the
defendant's mind when he commits [the] crime." In Cook's case, the
prosecutor told the jury, the State had to prove that Cook "knew what
he was doing" when he engaged in his non-consensual contacts with
the victim, and that Cook "was reckless in his disregard for the fact
that [his conduct] would cause someone fear".
The prosecutor told the jury that the question was two-
fold: was the victim's fear reasonable, and did Cook recklessly
disregard the effect that his conduct would have on the victim?
Prosecutor: [When the victim was] in the
middle of [the] situation, and she [didn't] know where it [was]
going, was it reasonable for her to be fearful? And was it reckless
for Mr. Cook to disregard the fact that anybody would be fearful
under those circumstances?
The prosecutor then recited various acts committed by Cook that
"would have been [frightening] to anybody under the same
circumstances". The prosecutor argued that Cook's conduct made the
victim "reasonably fearful" and placed her "reasonably in fear".
During Cook's summation, the defense attorney did not
dispute that Cook engaged in the conduct alleged by the State, or
that this conduct violated the restraining order (and thus Cook's
bail and probation conditions):
Defense Attorney: [The prosecutor] has
done a pretty good job here of laying things out. The [conduct]
that the State has charged [as] stalking [are] the incident of the
letter, ponytail, and jewelry; ... the note in the [box of] Legos
... ; the phone messages ... right before he was arrested; ... [and
the] call ... to [K.A.B.'s home], inquiring about where she was.
... Those are the acts [charged].
. . .
As to these things, there really isn't
much dispute that those things were actually in violation of a
restraining order. Whether Mr. Cook was aware of that or not, I'd
submit that [that is] up to you.
The defense attorney asked the jury to focus on Cook's
mental state and the reasonableness of the victim's fear:
Defense Attorney: The questions that I
would ask you to be concerned with [are]: Was [Cook's] course of
conduct the kind of conduct that recklessly placed [the victim] in
fear of death or physical injury [to] herself or a family member?
And did those actions recklessly violate a protective order or the
conditions of [Cook's] release ... ?
During the second half of her summation, Cook's attorney
again conceded that Cook had violated the restraining order. The
defense attorney hinged her defense solely on the assertion that the
State had failed to prove Cook's recklessness. "[W]hat's really
important," she argued, "is that nothing [Cook] did ... would have
[made him] aware [that he] would ... cause[] her the kind of fear
that would bring him before the court today for stalking".
Defense Attorney: [L]ove letters, a
ponytail [clipping] trying to show love, a note in [her child's box
of] Legos apologizing for his behavior, saying he wants to get back
together with her "Please forgive me, I love you all and hope for
a chance to prove it." and the phone calls on December 22nd, again
apologizing, saying that he loves and misses them, things like that.
Those things are not things that he would have ... had any idea
would have caused her fear.
Misguided? Sure. A lot of things ...
you've heard show that he's acted in an emotionally unstable way ...
. But ... he cannot be charged with having had a clue [that] she
would be afraid that he was going to hurt her or [any idea that he
would] cause her fear.
. . .
He [was] attempting to get back with her,
and that may have been a violation of [the] restraining order, and
we may not like it. But it wasn't anything that would [foreseeably]
have caused her fear.
. . .
There's nothing ... that the State [has]
pointed to that can make us think that Mr. Cook would have known
about her fear. So we'd submit to you that he was not reckless.
He did not recklessly disregard the fact that she might have been
afraid. And the definition of "recklessly" is that a person is aware
of and consciously disregards a substantial and unjustifiable risk.
He wasn't aware of it. He didn't know.
In rebuttal, the prosecutor agreed that the State had to
prove Cook's recklessness, but she argued that the evidence proved
this element:
Prosecutor: "Recklessly" ... [is] when a
person is aware of [and] consciously disregards a substantial and
unjustifiable risk that the result will occur ... . And in this
case, the risk would be that [the victim] would be in fear. The
risk must be of such a nature and degree that disregard of it
constitutes a gross deviation from the standard of conduct that a
reasonable person would observe in the situation.
Would a reasonable person in this
situation, knowing what [Cook] knew from what he had experienced
with her, and what she had communicated to him by telling him to
stay away, running away and hiding from him, going to court, filling
out paperwork [] which says, "I want you to stay away from me" can
you conclude, after that, that [Cook was] aware of the risk and then
... hold him accountable for disregarding that risk? That's what
we're asking you to do.
Thus, by the end of the parties' summations, the jury was
well aware of the required connection between Cook's conduct, the
creation of K.A.B.'s fear, and the violation of the protective
order. In addition, the jury had been told repeatedly that the
State was obliged to prove (1) that K.A.B.'s fear of death or
physical injury was reasonable under the circumstances, and (2) that
Cook was aware of and consciously disregarded a substantial and
unjustifiable risk that his conduct would engender this kind of fear
in K.A.B..
We therefore conclude that, despite the arguable flaws in
the jury instruction, these flaws did not affect the jury's
deliberations, and thus there was no plain error.
3. Judge Savell did not commit plain error by failing
to require the jury to unanimously agree on precisely what acts Cook
committed, or precisely which of these acts violated the protective
order, or precisely which of those acts caused K.A.B. to fear for
her safety
Cook argues that the jury's verdict is fatally flawed
because the jurors were never instructed to reach unanimous
agreement on what specific acts of non-consensual contact Cook
committed. Cook argues that this error was compounded because, even
assuming that the jurors unanimously agreed on what exactly Cook
did, the jurors were never instructed to reach unanimous agreement
concerning (1) which of Cook's acts of non-consensual contact
violated the provisions of the protective order (and thus the
conditions of Cook's probation and bail release), or (2) which of
Cook's acts of non-consensual contact caused K.A.B. to fear for her
safety.
Cook never asked for a jury instruction on these issues,
so he must now show plain error. We find no plain error here.
First, as we explained in the preceding section, the
defense did not actively dispute the State's allegations of what
Cook did, nor did the defense actively contest the State's assertion
that Cook's actions violated the protective order. Cook's defense
attorney pursued one primary theme: that Cook could not reasonably
have anticipated that his actions would cause K.A.B. to fear for her
safety or the safety of her children. Because there was no dispute
concerning the contours of Cook's conduct, or whether that conduct
violated the protective order, we find no plain error in failing to
require the jury to specify the exact basis of its conclusion that
Cook committed the actus reus of first-degree stalking (repeated
acts of non-consensual contact in violation of a court order).
This conclusion is, in some respects, foreshadowed by our
decision in State v. Covington, 711 P.2d 1183 (Alaska App. 1985).
Covington involved a prosecution for repeated acts of sexual abuse
of a minor. The victim "was not able to differentiate between
various incidents. She testified that she shared a bed with her
father during the totality of the time in question, and that they
engaged in sexual intercourse almost every night." [Fn.
9] Covington, for his part, "conceded sharing the bed [with his
daughter], but denied that he ever had intercourse with [her]." [Fn.
10]
The issue in Covington was whether the trial judge
committed plain error by not explicitly requiring the jury to
unanimously agree on specific acts of sexual abuse. This court
acknowledged that when "discrete incidents of sexual abuse are
charged together in a single count, and impeaching and contrary
evidence of differing weight is offered to rebut the several
incidents", an instruction on jury unanimity will be necessary for
a fair trial because "a real possibility exists that individual
jurors will reject some incidents, based upon an evaluation of the
impeaching and contrary evidence, but accept other incidents as
proven." Thus, even though "[all] twelve jurors may agree that the
defendant committed at least one of the incidents, [the jury may]
be in general disagreement as to which incident that was." [Fn. 11]
Nevertheless, we found no plain error in Covington because
the alleged acts of sexual abuse were undifferentiated: "no
impeaching or contrary evidence was more applicable to one incident
than another." [Fn. 12] Rather, the jurors were "faced with a
straight question of credibility. Did [they] believe the victim ...
or, based on Covington's testimony and the impeachment and
contradiction of the victim, did [they] have a reasonable doubt as
to the accuracy of the victim's testimony?" [Fn. 13] Under these
circumstances, we concluded, "the record unequivocally establishe[d]
that the trial court's error in not requiring the state to elect
among incidents, or alternatively, in failing to provide a
[unanimity] instruction, did not appreciably affect any verdict
against Covington." [Fn. 14]
On one level, Cook's case resembles Covington: The State
alleged that Cook engaged in several acts of non-consensual contact
with K.A.B.; none of these individual allegations was subject to
more impeaching or contradictory evidence than the others; and
Cook's theory of defense (lack of recklessness) did not require the
jurors to distinguish among the individual allegations. This alone
would support the conclusion that the lack of a unanimity
instruction did not constitute plain error.
But Cook's case is also different from Covington in one
key respect. In Covington, each of the defendant's individual acts
of sexual abuse would have supported a separate charge and
conviction; that is, each act was a separate crime. In contrast,
the actus reus of the crime of stalking is defined as a series of
acts. The stalking statute requires the State to prove that the
defendant engaged in a "course of conduct" comprising "repeated acts
of nonconsensual contact". [Fn. 15] It is the defendant's course
of conduct, not the defendant's individual acts, that must engender
the requisite fear in the victim. Moreover, in a stalking
prosecution, the individual acts committed by the defendant are not
necessarily criminal in themselves; rather, they become criminal
because they are committed in series.
In prosecutions for this type of crime, courts have not
required jury unanimity regarding the precise acts that the
defendant committed. For example, in Washington v. United States,
760 A.2d 187 (D.C. App. 2000), the defendant was charged with
stalking his victim for over two years. On appeal, the defendant
claimed that the trial judge committed plain error by not requiring
the jury to reach unanimous agreement concerning the particular acts
of contact that comprised his offense. The Court of Appeals for the
District of Columbia rejected this argument because the actus reus
of stalking is defined as a series of acts:
Stalking ... is defined as a series of
incidents that are part of a course of conduct
extending over a period of time. As the
government says in its brief, "it is the
continuing course of conduct which constitutes
the offense, not the individual discrete
actions making up the course of conduct." ...
[W]hen a single count is charged and the facts
show a continuing course of conduct, rather
than a succession of clearly detached
incidents, a special unanimity instruction is
unnecessary, absent some factor that
differentiates the facts on legal grounds. No
such factor is present here.
. . .
Although the [defendant's acts] occurred
at different times, the statute specifically
requires that the behavior be "on more than one
occasion" and must occur "repeatedly." D.C. Code
sec. 22-504(b). The charge set forth in the
information encompassed a period of almost two
and a half years, from August 1994 to January
1997. Thus we cannot say as a matter of law
(as we must in order to find plain error) that
the acts committed by appellant before the
brief reconciliation were "separate criminal
acts" from those committed after the
reconciliation. Nor did [the defendant]
present separate defenses to these acts;
rather, he offered only a limited defense
concerning the encounter at the school, and no
defense as to anything else.
. . .
We hold that [the defendant's] behavior
was a continuing course of conduct from the
middle of 1994 until his arrest in January
1997, that it constituted a single offense
... , and that he was therefore not entitled to
a special unanimity instruction ... .
Id. at 198-99 (citations omitted).
Similarly, in State v. Johnson, 627 N.W.2d 455 (Wis.
2001), the defendant was convicted of engaging in "repeated [acts
of] sexual assault [on] the same child", an offense requiring proof
of at least three acts of sexual assault within a specified period
of time. [Fn. 16] The Wisconsin Supreme Court ruled that the jury
was not required to reach unanimous agreement concerning the
particular predicate acts that comprised the required three. [Fn.
17]
Other courts have reached similar results when dealing
with offenses that, although not necessarily defined as a series of
acts, are often committed through a series of acts. For example,
in State v. Marko, 27 P.3d 228 (Wash. App. 2001), the defendant was
convicted of intimidating a witness by making several threats during
the course of a 90-minute confrontation. The court held that "[j]ury
unanimity [regarding the defendant's specific threatening
utterances] is not required where the defendant's acts form a
continuing course of criminal conduct". [Fn. 18] Likewise, in State
v. Garman, 984 P.2d 453 (Wash. App. 1999), the Washington Court of
Appeals held that a unanimity instruction is not required when a
defendant is charged with one count of a higher degree of theft
based on the aggregation of numerous small thefts committed pursuant
to a common scheme, under a Washington statute similar to
AS 11.46.980(c). [Fn. 19] Finally, in Commonwealth v. Lewis, 720
N.E.2d 818 (Mass. App. 1999), the court held that no unanimity
instruction is required when the charged theft comprises successive
takings motivated by a "single, continuing, criminal impulse or
intent ... pursuant to the execution of a general larcenous scheme".
[Fn. 20]
Returning to Cook's case, Cook alleges that Judge Savell
committed plain error by failing to require the jury to reach
unanimous agreement on Cook's individual acts of non-consensual
contact, and whether each of those individual acts violated the
terms of the protective order. But based on the cases we have just
discussed, there was no obvious requirement of jury unanimity on
these issues. To establish plain error, Cook must show that the
purported error would have been obvious to any competent judge or
attorney. [Fn. 21] If reasonable judges could disagree as to
whether error was committed, then the purported error is not "plain".
[Fn. 22] Cook has therefore failed to show plain error.
4. Judge Savell did not commit plain error by failing
to instruct the jury on potential lesser included offenses
Cook argues that the jury should have been instructed on
the lesser offense of second-degree stalking defined in AS 11.41.270
(i.e., stalking in which the acts of non-consensual contact do not
violate a court order and do involve a victim younger than 16, and
in which the defendant did not carry a deadly weapon). [Fn. 23]
He also argues that the jury should have been instructed on the
lesser offense of violating a protective order, AS 11.56.740.
But Cook's attorney expressly told Judge Savell that Cook
did not wish to have the jury instructed on any lesser offenses.
We recently held that when the parties do not request jury
instructions on lesser offenses, a trial judge does not commit plain
error by failing to instruct the jury, sua sponte, on potential
lesser included offenses. See Heaps v. State, 30 P.3d 109, 114-16
(Alaska App. 2001). For these reasons, there was no error in Cook's
case.
5. Judge Savell did not violate Evidence Rule 404(b)
when he allowed the State to introduce evidence of Cook's statements
and actions in late 1998 and early 1999
At Cook's trial, Judge Savell allowed the State to present
the testimony of court clerk Brenda Mew concerning events that
occurred in October 1998. Mew testified that she worked in the
court's Domestic Violence Unit, and she remembered K.A.B. coming to
her office to file a petition for a restraining order. Later, Cook
came to her office. According to Mew, Cook "seemed distracted. He
was very sweaty. He was kind of scattered ... [and his statements
were] a little inappropriate and out of control."
Mew also testified that Cook telephoned her office on
another occasion to ask whether K.A.B. had moved. She stated that
Cook "was insistent on finding out whether or not [K.A.B.] had
moved." A few days later, Mew mentioned this incident to K.A.B.,
who had in fact moved and had come to the clerk's office to notify
the court of her change of address.
Finally, Mew testified that Cook filed a document on
October 8, 1998, requesting a modification of the protective order
so that he would be allowed to contact K.A.B. by telephone. Cook
said that he was requesting this modification because he wanted "to
get [past] this ... nightmare and hopefully someday reconcile with
my best friend and love of my life".
On appeal, Cook argues that Mew's testimony was irrelevant
and was prejudicial because it tended to portray Cook as "a little
nuts". We disagree. One of the major elements of the State's case
was proof that Cook was fixated on K.A.B. that he knowingly and
repeatedly engaged in contact with her after being alerted that she
did not consent to this contact. Mew's testimony was relevant to
show that Cook actively sought to maintain contact with K.A.B.
despite the protective order. It also tended to show that Cook was
upset by K.A.B.'s attempts to break off their relationship. Cook's
state of mind at this time (early to mid-October 1998) was relevant
to show his state of mind between October 27th and December 22nd,
when Cook committed the acts of non-consensual contact with which
he was charged.
Moreover, Mew's testimony did not create any appreciable
danger of unfair prejudice. The statements and conduct that Mew
testified about were not criminal or immoral in themselves. To the
extent that these actions and utterances portrayed Cook in a bad
light, this was because they were relevant to the charge of
stalking.
Cook next claims that Judge Savell erred in allowing the
State to present evidence of a letter that Cook wrote to K.A.B. from
jail in February 1999. Cook argues that "[t]he only impact [of] this
letter ... was to suggest to the jury that Mr. Cook had a propensity
to engage in unwanted contact [with K.A.B.] by attempting to contact
[K.A.B.], even from jail [where Cook was sent for his earlier
violations of the protective order]." This is precisely why the
letter was relevant and properly admitted. It tended to show Cook's
continuing attitude toward K.A.B., his attitude toward the
protective order, and his continuing perception of his relationship
with K.A.B. thus tending to prove Cook's state of mind from late
October to late December 1998, when he committed the acts of non-
consensual contact with which he was charged.
For much the same reasons, we uphold Judge Savell's
decision to allow the State to introduce evidence of Cook's
telephone call from jail in which he said, "This [is] war."
6. Judge Savell did not commit reversible error when he
directed the defense attorney to read aloud a clause of Cook's
restraining order that was less favorable to Cook's position than
another portion that the attorney had just read
During the defense attorney's cross-examination of K.A.B.,
the defense attorney asked K.A.B. about one of the clauses of the
six-month domestic violence protective order issued against Cook on
October 27, 1998. The defense attorney directed K.A.B.'s attention
to page 2 of the protective order, where Cook was ordered not to
contact or communicate with K.A.B. "except ... through an attorney
or by U.S. mail". By directing the jury's attention to this
exception for communications by mail, the defense attorney was
trying to establish that Cook did not violate the protective order
when he sent the letter to K.A.B. from jail on February 22nd.
(The indictment against Cook covered his actions during
the period from October 27, 1998, through December 22, 1998. Thus,
Cook's February 22nd letter to K.A.B. was not a component of the
actus reus charged in the indictment. Instead, as explained above,
Cook's act of sending this letter was relevant because it tended to
show Cook's attitude toward the protective order and his perception
of his relationship with K.A.B. thus tending to prove Cook's state
of mind during the earlier period covered by the indictment.)
Immediately after the defense attorney directed K.A.B.'s
attention to the exception for communications by mail, Judge Savell
ordered the defense attorney to read, "for purposes of clarity and
wholeness", another clause found on the next page of the protective
order. This second clause stated that Cook was not to "have any
contact with [K.A.B.] or her minor children". The defense attorney
read this clause aloud, and then she asked K.A.B. about the two
clauses. K.A.B. conceded that these two clauses were apparently
contradictory, and she readily admitted that the protective order
was "confusing" on this point.
A little later in the trial, Cook's attorney asked for a
mistrial based on the judge's intervention during the cross-
examination of K.A.B.. The defense attorney asserted that when
Judge Savell directed her to read the second clause of the
protective order, the judge in effect "introduced [his] own evidence
in favor of the State". Judge Savell denied the mistrial; he
declared that when a witness is being questioned about the contents
of a document, a trial judge has the discretion to apprise the jury
of the totality of the document when "fairness calls [for it]".
Approximately two months later, after Cook had been found
guilty, the defense filed a motion to disqualify Judge Savell from
participating in Cook's sentencing (and any further proceedings in
Cook's case). Like the earlier motion for mistrial, this motion for
disqualification was based on Judge Savell's intervention during the
defense attorney's cross-examination of K.A.B.. Cook asserted that
Judge Savell's action demonstrated that the judge could not be
impartial, for he had "crossed the line from neutral arbiter to
advocate". At the hearing on this motion, Judge Savell conceded that
he had acted precipitously that "in retrospect, ... [his] decision
was ill-advised". Nevertheless, he rejected Cook's contention that
this action showed that he was biased in favor of the State.
On appeal, Cook again argues that Judge Savell's
intervention in the cross-examination of K.A.B. required a mistrial.
Cook asserts that Judge Savell's action effectively "communicated
to the jury that the judge [thought] that Mr. Cook's attorney was
not being fair in [her presentation of] evidence", and that it was
therefore necessary for the judge "to step in and do the prosecutor's
job [of] eliciting information ... helpful to the state and harmful
to Mr. Cook."
We agree with Cook that a trial judge must be careful to
avoid taking actions that the jury would reasonably construe as
partisanship. Canon 2(A) of the Code of Judicial Conduct states
that a judge must always "act in a manner that promotes public
confidence in the integrity and impartiality of the judiciary".
Moreover, Canon 3(E), requires judges to disqualify themselves
whenever "[their] impartiality might reasonably be questioned" unless
the ground of disqualification is affirmatively waived by all
parties under the procedure set forth in Canon 3(F).
But these precepts do not prohibit a judge from taking a
role in the presentation of evidence at trial. Indeed, Evidence
Rule 614 explicitly recognizes trial judges' authority to "call
witnesses on [their] own motion" and to "examine any witness" called
by the parties.
The commentary to Rule 614 declares that "the court is not
entirely a prisoner of the parties' approach to the case"; rather,
"it is proper for the court to ask questions [of witnesses] in order
to clear up confusion created by the parties". [Fn. 24]
Nevertheless, the commentary cautions that, in jury trials, a
judge's questioning "should be ... guarded so as not to constitute
an implied comment" on the merits of the case. [Fn. 25]
Obviously, competing policies and values govern this
aspect of the law. As the commentary to Rule 614(b) acknowledges,
"the manner in which [judicial] interrogation should be conducted
and the proper extent of its exercise are not susceptible of
formulation in a rule". [Fn. 26] The commentary suggests that when
a trial judge's action is challenged, an appellate court must simply
review the facts of the particular case and decide whether the
judge's intervention constituted an abuse of discretion. [Fn. 27]
Turning to the facts of Cook's case, we conclude that
Judge Savell could properly take steps to apprise the jury of the
second clause of the protective order (the clause that prohibited
Cook from all contact with K.A.B. and her children). This clause
was clearly relevant to the defense attorney's implication that Cook
did not violate the protective order when he sent K.A.B. a letter
from jail on February 22nd.
Evidence Rule 106 states that when one party introduces
a part of a writing, adverse parties "may require the introduction
at that time of any other part [of the writing] which ought in
fairness to be considered contemporaneously". The commentary to Rule
106 explains that, at common law, adverse parties always had the
right to introduce the remaining relevant portions of the document,
and that the crucial language in Rule 106 is the phrase "at that
time":
[When a substantial amount of] time
elapses between the offer of part of a statement and the offer of
the remainder, the jury may become confused or find it difficult to
reassess [the] evidence that it ... heard earlier in light of [the]
subsequent material. Rule 106 creates a right to require immediate
admission of ... all relevant portions. It is designed to enable
one party to correct immediately any misleading impression created
by another party who offers part of a statement out of context.
Commentary to Alaska Evidence Rule 106, second paragraph.
We presume that Evidence Rule 614(b) authorizes a trial
judge to invoke Rule 106, even though the judge is not an "adverse
party". Nevertheless, one might argue that Judge Savell should not
have stepped in so quickly that he should have waited to see if
the prosecutor would point out (or even feel the need to point out)
the discrepancy between the two clauses of the protective order.
Indeed, Judge Savell appears to have acknowledged the force of this
argument when, three months later, he conceded that his action had
been "ill-advised".
But even assuming that Judge Savell should have abstained
from comment at that particular time, we do not believe that this
isolated incident gave the jury the impression that Judge Savell
sided with the State or that he believed that Cook's attorney was
acting unethically. We note that Judge Savell made no further
comment when, a few moments later, the defense attorney got K.A.B.
to acknowledge that the protective order was "confusing" and that
a person reading the order might not understand it to prohibit
communication by letter.
Nor do we believe that Judge Savell prejudiced the
fairness of the trial by directing the defense attorney to read the
second clause to the witness, rather than reading this clause to the
witness himself as he would have been authorized to do under
Evidence Rules 614(b) and 106. We acknowledge that Judge Savell's
action created a potential procedural disadvantage for the defense:
Had Judge Savell directed the question to K.A.B. himself, Evidence
Rule 614 would have guaranteed the defense attorney the right to
object to the judge's question and the right to cross-examine K.A.B.
on the point raised by the judge. [Fn. 28] For this reason, we do
not endorse Judge Savell decision to make the defense attorney read
the second clause. Nevertheless, there is no dispute that the
protective order contained both clauses, and at that point, the
entire document had already been admitted into evidence. After the
defense attorney was directed to read the second clause of the order
to K.A.B., the defense attorney was allowed to ask questions about
this second clause that, in effect, constituted cross-examination
on the point raised by Judge Savell. Moreover, as we noted above,
the defense attorney got K.A.B. to admit that the two clauses of the
order were contradictory and that the order was confusing.
For these reasons, we conclude (1) that Judge Savell did
not abuse his discretion when he raised the issue of the second
clause of the order, and (2) even if Judge Savell abused his
discretion by requiring the defense attorney to point out the
contradictory portion of the protective order rather than pointing
it out himself, that error was harmless under these particular
facts.
7. Judge Savell's intervention in the defense
attorney's cross-examination of K.A.B. did not demonstrate bias, nor
did it create a reasonable appearance of bias
After Judge Savell denied Cook's motion for mistrial
(discussed in the preceding section), Cook asked the judge to recuse
himself from the case. Cook argued that Judge Savell had, in
effect, taken sides in the litigation and that, through his action,
he had discredited both the defense attorney and the defense case
in the eyes of the jury. Cook asserted that the judge's action
demonstrated an actual bias against Cook or, alternatively, that the
judge's action created a reasonable appearance of bias.
Judge Savell denied the motion for his disqualification.
In accordance with AS 12.22.020(c), Judge Savell's decision was
immediately reviewed by another judge Superior Court Judge Ralph
R. Beistline. Judge Beistline affirmed Judge Savell's decision.
On appeal, Cook renews his contention that Judge Savell's
intervention during the cross-examination of K.A.B. either
demonstrated true bias or created a reasonable appearance of bias.
For the reasons discussed in the preceding section, we affirm Judge
Beistline's decision that Judge Savell's action neither proved bias
nor created a reasonable appearance of bias.
In his brief, Cook asks us to broaden the scope of our
inquiry by examining all of Judge Savell's actions in the case
before, during, and after trial. According to Cook, Judge Savell
"engaged in a continuing course of conduct that demonstrated an
apparent bias against Mr. Cook and/or his court-appointed
attorneys[, beginning] at the first hearing at which Mr. Cook had
any contact with Judge Savell". This argument was not preserved for
appeal. In the trial court, Cook's motion for disqualification was
based solely on Judge Savell's intervention during the cross-
examination of K.A.B..
8. Judge Savell did not conceal his issuance of an ex
parte domestic violence restraining order against Cook
In addition to the disqualification motion discussed in
the preceding section, Cook filed a later motion to disqualify Judge
Savell. This second disqualification motion was based on events
that occurred the preceding May, when Judge Savell was considering
whether to accept the plea agreement described in section 1 of this
opinion.
To briefly recapitulate, Cook and the State announced on
April 2, 1999 that they had reached a plea bargain to resolve the
case: Cook would plead no contest and would be sentenced to time
served, with the remainder of a year suspended. Judge Savell
accepted Cook's plea, but he reserved his final decision on the plea
agreement until after he read the pre-sentence report. Seven weeks
later, at a hearing on the afternoon of May 21st, Judge Savell told
the parties that the proposed sentence was too lenient and he was
therefore rejecting the plea agreement. Two weeks after that, Cook
notified the court that he wished to withdraw his plea and go to
trial. Cook's trial was held in early August.
On October 29, 1999 (i.e., almost three months after the
trial, and two weeks before Cook's scheduled sentencing), Cook filed
his second motion to disqualify Judge Savell. This motion was based
on the fact that, just prior to the hearing of May 21st at which
Judge Savell rejected the proposed plea agreement, Judge Savell had
granted K.A.B.'s petition for a new 20-day restraining order against
Cook.
Cook argued that Judge Savell should have been
disqualified from ruling on the proposed plea agreement (or,
alternatively, certainly should not have rejected it) after the
judge had granted an ex parte petition for a restraining order
against Cook a petition brought by the same woman who was the
alleged victim in the pending stalking prosecution. Cook contended
that Judge Savell's decision to issue the restraining order would
cause reasonable people to conclude that he could not fairly
evaluate the sentencing provisions of the proposed plea agreement.
In the alternative, Cook argued that Judge Savell should not have
ruled on the proposed plea agreement until he had at least notified
the parties about his decision to grant the ex parte petition for
a restraining order against Cook. Cook asserted that he and his
attorney would reasonably have viewed the judge's issuance of the
restraining order as a potentially disqualifying circumstance.
It is helpful to unravel the various strands of this
argument. Cook's first claim is that Judge Savell should have had
no further dealings with Cook's criminal case after the judge
granted K.A.B.'s ex parte petition for a new restraining order
against Cook.
Normally, Judicial Canon 3(B)(7) prohibits a judge from
receiving ex parte communications about the merits of a case. (The
term "ex parte" refers to a proceeding in which a judge hears from
only one litigant or one allied group of litigants, while other
litigants with adverse interests are not allowed to participate.
[Fn. 29]) The policy of this rule is obvious: no party should be
able to take the decision-maker aside and privately influence them.
However, Judicial Canon 3(B)(7)(a) allows a judge to
receive ex parte communications when the judge is "expressly
authorized by law to do so". In situations involving domestic
violence, AS 18.66.110(a) authorizes judges to hear ex parte
applications for temporary restraining orders. Thus, it would
appear that Judge Savell did not violate Canon 3(B)(7) when he heard
K.A.B.'s ex parte petition for a 20-day restraining order.
Nevertheless, under the particular circumstances of Cook's
case, Judge Savell ran a risk when he presided over the ex parte
application for a restraining order. Cook was charged with stalking
K.A.B. between October and December 1998, and Judge Savell was
assigned to that criminal case. There was a possibility that,
during the ex parte hearing, Judge Savell might hear things from
K.A.B. or from some other witness that might influence his decision
to accept or reject Cook's proposed plea agreement. Or, if for some
reason the plea agreement fell apart and Cook went to trial, this
same information might influence the judge's sentencing decision if
Cook was convicted.
We faced an analogous problem in Taylor v. State, 977 P.2d
123 (Alaska App. 1999). In Taylor, the judge presiding over a bench
trial was asked to hear a witness's ex parte explanation of why she
was asserting the privilege against self-incrimination. The
complication was that the witness was the defendant's wife, and it
was at least conceivable that "when [she] explained how her proposed
testimony might incriminate her, ... [she might admit] that she had
engaged in criminal conduct jointly with Taylor." [Fn. 30] Taylor
argued that if the trial judge heard his wife's explanation ex
parte, the judge "[might be] exposed to prejudicial information about
Taylor ... [that would affect] the judge's deliberations when he
rendered his verdicts at the end of Taylor's bench trials." [Fn. 31]
In Taylor, we ultimately concluded that we did not have
to resolve this problem because we examined the record of the ex
parte hearing and found that the potential prejudice had not
occurred: Taylor's wife's attorneys "gave only a vague description
of her potential criminal liability; ... provided no details of her
conduct, and ... made no assertions about Taylor." [Fn. 32]
Cook's case is the same. In his written decision denying
Cook's motion for disqualification, Judge Savell declared that he
"had no contact with [K.A.B.]" and obtained no information from her
when he heard and granted her ex parte petition for a restraining
order. K.A.B.'s petition alleged simply that Cook had "assaulted
and stalked" her. Judge Savell assumed that he could accept these
assertions as true because six weeks before, in early April, Cook
had pleaded no contest to the stalking charge.
In his brief to this court, Cook hints that we should not
believe Judge Savell's statements on this point. But those
statements are the only record we have. Presumably, Cook and his
attorney had access to the pleadings that K.A.B. filed, and access
to the recording of any hearing that occurred in connection with
K.A.B.'s petition for the restraining order. Moreover, if Cook's
attorney believed that the matter warranted an evidentiary hearing,
she could have asked for one. Instead, Cook chose to leave Judge
Savell's statements unchallenged.
This brings us to Cook's last argument. Cook asserts that
even if Judge Savell was not exposed to any new evidence at the ex
parte hearing, the judge still should have notified Cook and his
attorney that he had issued the restraining order. Cook argues that
the judge's decision to issue the restraining order was itself
relevant because it tended to show that the judge could not
impartially evaluate the proposed plea agreement. Thus, Cook
asserts, Judge Savell was obliged to bring this matter to the
attention of the parties before he proceeded to rule on the
acceptability of the proposed plea agreement.
We do not see how Judge Savell's decision to issue the
restraining order showed him to be incapable of fairly evaluating
the proposed plea agreement. As just explained, Judge Savell was
not exposed to any new information during the ex parte proceeding.
He simply ruled that, given Cook's no contest plea to the stalking
charge, K.A.B. was entitled to the new restraining order. Our
supreme court has stated that "a judge may not be disqualified on
the mere basis of previous rulings, opinions, or exercises of
judicial discretion". [Fn. 33] Cook has not suggested that K.A.B.
was not entitled to the restraining order. Because Cook has
provided no reason to believe that K.A.B. was not entitled to the
order she sought, Cook has failed to convince us that Judge Savell's
decision manifested anything other than a willingness to grant
K.A.B. her legal due.
Moreover, the record does not support Cook's assertion
that he and his attorney were ignorant of Judge Savell's action.
In Judge Savell's written decision denying the motion for
disqualification, the judge declared that Cook was served with a
copy of the newly-issued restraining order shortly before Cook came
to court for the hearing on the plea agreement. According to Judge
Savell, Cook "had [the order] in his hand" and was "discuss[ing] it
with his [attorney]" at the hearing. The restraining order plainly
identifies "Richard D. Savell" as the judicial officer who issued
it. Thus, Judge Savell concluded, there was no need to "[formally]
disclose that such an order had been issued by [him]."
In his brief to this court, Cook argues that "[o]ther than
Judge Savell's assertion, there is nothing in the record" to support
the conclusion that Cook and his attorney were aware that Judge
Savell had just issued the restraining order. Cook contends that
Judge Savell engaged in mere "conjecture" when he stated that he
observed Cook and his attorney discussing the restraining order in
court. "[T]here is no objective basis," Cook asserts, "[for] Judge
Savell's conjecture as to what Mr. Cook and his attorney might have
been discussing or [might have been] looking at [while sitting at]
counsel table across the courtroom from [the judge]."
But again, Judge Savell's statements are the only record
we have. If Cook or his attorney believed that Judge Savell had
misrepresented the facts or was mistaken in his observations, they
could have sought reconsideration of the judge's decision under
Criminal Rule 42(k). Instead, Cook again chose to leave Judge
Savell's statements unchallenged.
Given this record, we uphold the superior court's
conclusion that Cook and his attorney knew, before the plea
agreement hearing began on the afternoon of May 21st, that Judge
Savell had just issued a new restraining order against Cook. And
because Judge Savell was aware that Cook and his attorney knew this,
the judge's failure to formally announce this fact on the record is
not a ground for questioning his impartiality.
In short, we uphold the superior court's denial of Cook's
second motion to disqualify Judge Savell.
9. Judge Savell did not commit plain error by failing
to declare a mistrial sua sponte because of remarks made by the
prosecutor during summation
Cook argues that the prosecutor engaged in four types of
improper argument during her summation to the jury: arguing facts
not supported by the evidence, expressing a personal belief in the
State's case, intentionally appealing to the jury's passions, and
asking the jury to speculate on what further harm Cook might have
inflicted if he had not been stopped. Cook did not object to the
prosecutor's remarks at that time, so Cook must show that Judge
Savell committed plain error by failing to step in and declare a
mistrial even though none had been requested.
We have repeatedly declared that "trial judges must be
extremely cautious about granting a mistrial when the defendant has
not sought one." [Fn. 34] The reason for this caution is that,
"[u]nder the double jeopardy clause, if a judge declares a mistrial
sua sponte when there is no necessity for it, the charges against
the defendant must be dismissed." [Fn. 35]
We have examined the record. Cook is simply wrong in
asserting that the prosecutor mentioned facts not supported by the
evidence. As to the other challenged remarks, they are perhaps
susceptible of the interpretations urged by Cook if considered in
isolation. But we must evaluate the prosecutor's summation as a
whole. [Fn. 36] After studying the summation as a whole, we
conclude that any potential impropriety in the prosecutor's remarks
was not the type of egregious and gravely prejudicial misconduct
that would create a manifest necessity for declaring a mistrial
without the defendant's consent. Accordingly, we conclude that Cook
has not shown plain error.
10. Cook's sentence does not violate the Austin rule
Cook's offense, first-degree stalking, is a class C felony
punishable by up to 5 years' imprisonment. [Fn. 37] Cook was a
first felony offender. Under the sentencing rule that this court
established in Austin v. State [Fn. 38], a rule now codified in AS
12.55.125(k), Cook was entitled to receive a sentence more favorable
than the 2-year presumptive term that would apply to a second felony
offender convicted of the same offense unless the State proved
one or more aggravating factors under AS 12.55.155(c) or,
alternatively, proved extraordinary circumstances under AS
12.55.165. [Fn. 39]
Judge Savell sentenced Cook to 2 years, 8 months'
imprisonment, but he suspended 16 months (i.e., half) of this
sentence. Thus, Cook received 16 months to serve.
In 1982, shortly after we decided Austin, we clarified
that the Austin rule focuses primarily on a defendant's time to
serve: when a defendant receives less time to serve than the
presumptive term for a second felony offender, the defendant's
sentence complies with Austin even though the defendant's total
sentence (i.e., with the addition of the suspended jail time)
exceeds that presumptive term. See Tazruk v. State, 655 P.2d 788,
789 (Alaska App. 1982). We have adhered to this interpretation of
Austin for the past twenty years. Thus, under our current
sentencing law, Cook's sentence does not violate Austin: Cook's
sentence of 16 months to serve is more favorable than the 2-year
presumptive term for second felony offenders.
Cook asks us to reconsider and reverse the Tazruk
interpretation of the Austin rule. We are unpersuaded by his
arguments. Moreover, as we mentioned above, the legislature has now
codified the Austin rule and the Tazruk corollary in AS
12.55.125(k). This statute declares (with one exception that is not
pertinent to the present discussion) that when a first felony
offender is convicted of a felony that does not carry a presumptive
term, the defendant
may not be sentenced to a term of unsuspended
imprisonment that exceeds the presumptive term
for a second felony offender convicted of the
same crime unless the court finds by clear and
convincing evidence that an aggravating factor
under AS 12.55.155(c) is present, or that
circumstances exist that would warrant a
referral to the three-judge panel under
AS 12.55.165.
AS 12.55.125(k)(2) (emphasis added).
The whole point of our decision in Austin was to enforce
the legislature's policy of reasonable sentence uniformity [Fn. 40]
in felony cases not governed by presumptive sentencing i.e., cases
in which first felony offenders are sentenced for class B or class
C felonies. Now the legislature has codified Austin and Tazruk,
adopting them as the sentencing rule that governs these cases.
Given the legislature's enactment of AS 12.55.125(k), we would not
necessarily be free to alter the Tazruk rule even if we wished to
do so which we do not.
11. Cook's challenges to the two sentencing aggravating
factors found by Judge Savell are moot
At Cook's sentencing, Judge Savell found two aggravating
factors under AS 12.55.155(c). Cook argues that the judge erred in
finding these two aggravators, both because the evidence did not
support them and because the judge misconstrued the definitions of
the aggravators.
However, the sole legal significance of these aggravators
was that, having found them, Judge Savell was authorized to impose
a sentence that exceeded the normal Austin ceiling. He did not
exercise this authority. Thus, it makes no difference whether Judge
Savell was correct or incorrect in finding the aggravators. Cook's
arguments on this issue are moot. [Fn. 41]
Conclusion
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.260(a)(1).
Footnote 2:
See Criminal Rule 11(e)(2)-(3).
Footnote 3:
See Criminal Rule 11(e)(3).
Footnote 4:
See id. at 1044.
Footnote 5:
See Supreme Court Order No. 1383, effective April 15, 2000.
Footnote 6:
See id. at 1044.
Footnote 7:
See id.
Footnote 8:
See Braun v. State, 911 P.2d 1075, 1081 (Alaska App. 1996);
Norris v. State, 857 P.2d 349, 355 (Alaska App. 1993); O'Brannon v.
State, 812 P.2d 222, 229 (Alaska App. 1991).
Footnote 9:
Id. at 1185.
Footnote 10:
Id.
Footnote 11:
Id.
Footnote 12:
Id.
Footnote 13:
Id.
Footnote 14:
Id.
Footnote 15:
See AS 11.41.270(a) (b)(1).
Footnote 16:
See id. at 457.
Footnote 17:
See id. at 460-64.
Footnote 18:
Id. at 231.
Footnote 19:
See id. at 458.
Footnote 20:
Id. at 826.
Footnote 21:
See Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989);
Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983); Marrone v.
State, 653 P.2d 672, 675-76 (Alaska App. 1982).
Footnote 22:
See Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982).
Footnote 23:
Compare the basic definition of stalking, AS 11.41.270(a), with
the list of aggravating factors contained in AS 11.41.260(a) that
elevate the crime to first-degree stalking.
Footnote 24:
Commentary to Alaska Evidence Rule 614(a), second paragraph.
Footnote 25:
Commentary to Alaska Evidence Rule 614(b).
Footnote 26:
Id.
Footnote 27:
See id.
Footnote 28:
See Evidence Rule 614(a) and (c).
Footnote 29:
See Black's Law Dictionary (6th ed. 1990), p. 576.
Footnote 30:
Id. at 126.
Footnote 31:
Id.
Footnote 32:
Id.
Footnote 33:
State v. City of Anchorage, 513 P.2d 1104, 1112 & n.22 (Alaska
1973). See also Pride v. Harris, 882 P.2d 381, 385 (Alaska 1994)
(the fact that a judge has come to negative conclusions about a
defendant's character, based on prior experience in court, does not
necessarily indicate that the judge is biased).
Footnote 34:
Riney v. State, 935 P.2d 828, 838 (Alaska App. 1997).
Footnote 35:
Id. at 838-39 (citing Nelson v. State, 874 P.2d 298, 308
(Alaska App. 1994), and March v. State, 859 P.2d 714, 717 (Alaska
App. 1993)).
Footnote 36:
See generally Darling v. State, 520 P.2d 793, 794-95 (Alaska
1974); Tuckfield v. State, 805 P.2d 982, 987 (Alaska App. 1991).
Footnote 37:
See AS 11.41.260(c) and AS 12.55.125(e).
Footnote 38:
627 P.2d 657, 657-58 (Alaska App. 1981).
Footnote 39:
See Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App. 1983).
Footnote 40:
See AS 12.55.005.
Footnote 41:
See Krack v. State, 973 P.2d 100, 104 (Alaska App. 1999);
Nagasiak v. State, 890 P.2d 1134, 1135 (Alaska App. 1995) (when a
judge's authority to impose a particular sentence does not rest on
the judge's finding of contested aggravating factors, the challenge
to the judge's finding is moot).
