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Pease v. State (9/27/2002) ap-1830
Pease v. State (9/27/2002) ap-1830
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
KEVIN W. PEASE, )
) Court of Appeals No. A-
7635
Appellant, )
Trial Court No. 4FA-S97-3164 CR
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
MARVIN L. ROBERTS, )
) Court of Appeals
No. A-7638
Appellant, )
Trial Court No. 4FA-S97-3163 CR
)
v. ) O P I N
I O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1830 - September 27, 2002]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Ben J. Esch, Judge.
Appearances: Lori M. Bodwell, Law Office of
Lori M. Bodwell, and Dick L. Madson, Law
Office of Dick L. Madson, Fairbanks, for
Appellant. W. H. Hawley, Jr., 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.
COATS, Chief Judge.
The state charged Marvin L. Roberts, Kevin W. Pease,
Eugene G. Vent, and George C. Frese with the assault and robbery
of Franklin Dayton and the robbery, sexual assault, and murder of
a fifteen-year-old juvenile, J.H. These crimes occurred during
the early morning hours of October 11, 1997. Pease and Roberts
were tried together. A jury convicted both defendants of second-
degree assault of Dayton and of first-degree robbery and second-
degree murder of J.H. Frese and Vent were convicted in separate
trials and their appeals are pending before this court.1
Superior Court Judge Ben J. Esch sentenced Pease to a
total term of seventy-five years with fifteen years suspended.
He sentenced Roberts to a total term of forty-two years with ten
years suspended. Pease and Roberts raise several issues in their
appeal to this court. We affirm their convictions but remand a
portion of their sentences for reconsideration.
Factual Background
The assault and robbery of Franklin
Dayton
Arlo Olson testified that he witnessed the assault of
Franklin Dayton. Olson attended a wedding reception, which began
on the night of October 10, 1997, at the Eagles Hall in
Fairbanks. According to Olsons testimony, he was standing on the
front steps of the Eagles Hall between 12:30 and 1:00 a.m. on
October 11, 1997, when Roberts, Pease, Vent, and Frese drove up
in Robertss blue, two-door car. Frese asked Olson if he wanted
to get high. Olson declined, and the four drove away.
Dayton also attended the wedding celebration. According
to Daytons testimony, at about 1 a.m. on October 11, after having
several drinks, he left the reception and walked toward Tommys
Elbow Room. As Dayton was walking, a car stopped behind him.
Someone from the car tripped Dayton, pushed him down, stepped on
his hand, kicked him in the ribs, and took his money. Someone
told Dayton not to look back; Dayton did not recognize the voice.
Dayton thought the robbers said something about having a gun but
was not sure. He heard two doors slam after the attackers took
his money and left. He thought about four people robbed him and
they drove a tan car. He did not recognize any of them.
Dayton returned to the Eagles Hall. He told his
sisters, Katherine Quirk and Vaughn Reitan, that the four robbers
had put a gun to his head and threatened that he wasnt going to
be the only one. He told them he was thrown face-down and could
not identify any of the four assailants. Daytons sister-in-law,
Susan Paskvan, called 911 at 1:35 a.m., and his two sisters took
him to the hospital.
Olson testified that about half an hour after he talked
with Vent, Frese, Roberts, and Pease, he watched the four assault
Dayton down the street from the front steps of the Eagles Hall.
He saw Pease push Dayton to the ground. Frese, Pease, Vent, and
Roberts then all kicked Dayton. One of the four men yelled, Give
me your fucking money, bitch, and Dayton handed something to one
of the four. Olson watched the four men run to and enter
Robertss car.
The accuracy of Olsons testimony was seriously disputed
at trial. Olson admitted that he had drunk a considerable amount
on the evening in question and had smoked marijuana earlier in
the day. He testified that the fight only lasted about thirty
seconds, that the assailants had their backs to him half the
time, and that he really only got a look at them while they were
running back to their car. He estimated that the assault
occurred about 400 feet away from him. The defense presented
evidence that the distance was greater than that.
But the state presented evidence that Olson was able to
identify the defendants. Not only had he seen them earlier in
the evening, but Olson and Vent had been friends since Olsons
junior year in high school. Olson met Frese in the summer of
1997, had been to his house, had talked to him frequently, and
considered him a friend. Olson also identified Roberts, Pease,
and Robertss car at trial.
The murder and robbery of J.H.
J.H., age fifteen, met his mother at her job during the
afternoon of October 10, borrowed some money, and put it in his
wallet. He spent the evening of October 10 with Chris Stone at a
Fairbanks residence where a third friend was babysitting. The
boys took some prescription drugs during the evening to get high.
After consuming some of the pills, J.H. fell out of a chair and
had a seizure. J.H. and Stone left the babysitting residence
after midnight. At about 1:15 a.m., J.H. and Stone parted company
near downtown Fairbanks, and J.H. started walking home alone.
At 1:28 a.m. on October 11, Melanie Durham, a resident
of the Fairbanks WICCA shelter, who had been watching TV, stepped
outside to have a cigarette. Minutes later, Durham heard a
really horrendous [loud] smack, smack. The smacks were followed
by someone calling, Help me, help me, who then was quieted by
more smacks. She heard a highly intoxicated, slurred, deep voice
with a Native accent growl something indistinguishable. Durham
then heard more
smacks, really just it was horrendous. . . .
[T]he way it sounded was like whatever was
hitting this kid, . . . it was wrapping
around, thats how bad it sounded. And then,
I heard some more, then a[n] angry voice, and
I realized it was really bad, and that
whoever was getting hit wasnt saying
anything.
The sounds were coming from the intersection of Ninth and
Barnett, half a block from the shelter, but Durhams view of the
intersection was obstructed.
Sometime before 2:00 a.m., Stone used a phone at Carrs
Foodland. While Stone was using the phone, Pease, standing
nearby, stared at him to the point that Stone felt uncomfortable.
Stone saw a car parked nearby that looked like Robertss car. No
one was sitting in the drivers seat, but the car was otherwise
full.
At about 2:45 a.m., citizens driving on Barnette Street
spotted J.H. lying partly on the street and partly on the
sidewalk at Ninth and Barnette. J.H. was badly beaten, his pants
were down around his knees, and his personal effects were
scattered in the street. One of the citizens called 911, and
paramedics responded and took J.H. to the hospital.
The width and distance between tire marks observed at
the scene were similar to the width and distance between the
tires on Robertss car.
A sexual-assault nurse-examiner, Diane Hill, examined
J.H. at the hospital. Hill observed that J.H.s anal verge was
swollen and red, and she saw minute tears all around his anal
verge. Hill also observed a large, deep, long tear on J.H.s
anus. Using an anoscope, she found two abrasions on the wall of
the rectum three or four inches inside the anal verge.
About noon, that day, October 11, Frese sought
treatment for an injured foot at the Fairbanks Memorial Hospital
emergency room. Frese said that he had injured his foot by
kicking someone during a fight downtown the night before. The
police obtained the hiking boots Frese was wearing during the
fight. Fairbanks Police Lieutenant David Kendrick and Julie
Klaker, a nurse, compared the tread of Freses shoe with the
injury on the left side of J.H.s head. Kendrick found the
similarity between the lug pattern on the shoe and the lug
imprints on J.H.s face striking. Klaker said the print on the
bottom of the shoe matched up to the print on J.H.s face.
J.H. died on October 12. Dr. Franc Fallico performed
the autopsy. During the external examination, Dr. Fallico
observed multiple separate injuries on J.H.s head and body.
During the internal examination, Dr. Fallico found blood and
blood clots on the surface of the brain and hemorrhages in the
mid-brain; he attributed J.H.s death to blunt-force trauma to his
head. He found two scratches inside J.H.s colon about four
inches from his anus. Dr. Fallico found similarities between the
tread pattern on Freses shoes and the pattern on J.H.s head. At
trial, however, the defense presented an expert, Dr. John
Thornton, who concluded that the shoes the police seized from
Frese did not make the prints on J.H.s face.
Pease told the police that he had not seen Roberts,
Frese, or Vent on the night of October 10-11, claiming he had
been with his girlfriend, Jessica Lundeen. But Lundeen denied
having seen Pease at any time during the evening and night of
October 10-11. Pease presented an alibi defense based on several
witnesses who testified he had been at two parties on the evening
in question.
The state also presented evidence from two people who
were in jail with Pease prior to trial. According to Angela
Harman, she asked Pease why he had murdered J.H. In response,
Pease stated that, [I] did it for the punks money. A second
inmate, John Heffle, asked Pease if he had committed the murder.
Pease responded, I was fucked up, and it was bad.
Roberts also presented an alibi defense at trial.
Several witnesses testified that he was at the Eagles Hall at the
time the assaults occurred.
The jury convicted Pease and Roberts of second-degree
assault of Dayton and first-degree robbery and second-degree
murder of J.H. This appeal followed.
Whether Judge Steinkruger erred in failing to
sever for trial the charges relating to the
assault of Dayton from the charges relating
to the robbery and murder of J.H.
Frese filed a motion to sever the charges relating to
the assault on Dayton from the charges relating to the robbery
and murder of J.H. He argued that the jury might improperly use
the evidence of the Dayton assault to convict him of the robbery
and murder of J.H. The state opposed the motion, and Superior
Court Judge Niesje J. Steinkruger denied the motion to sever
without discussion. After Judge Steinkruger denied the motion,
Pease moved without opposition to join Freses motion. The record
does not reflect that Judge Steinkruger took any action on Peases
application to join the severance motion.
Pease and Roberts concede that it was permissible under
the Alaska Criminal Rules to join the Dayton and J.H. charges,
but they argue that the evidence against them in the Dayton case
was much stronger than in the J.H. case. They claim that the
evidence in the Dayton case improperly bolstered the J.H. case.
The state argues that Roberts waived the severance
issue by not moving to sever before trial. Roberts contends that
an objection made by one codefendant is deemed to have been made
by all codefendants absent an objection. But generally, a
defendant may not rely on a codefendants motion or objection
absent a special agreement with the trial court.2 And we have
not found an agreement on the record that would allow Roberts to
rely on Peases motion. But we need not resolve this issue
because, as we explain below, we conclude that Judge Steinkruger
did not err in denying the motion for severance.
The state argues that Pease waived his severance claim
because he did not renew it at trial. But we stated in Mathis v.
State3 that a defendant does not need to renew a motion for
severance at trial if the trial court clearly and unequivocally
rules on the claim before trial.4 Of course, if circumstances
arise during trial that undermine the judges earlier decision
denying severance, the defendant has a duty to renew the motion
for severance during trial to allow the trial judge to consider
the actual circumstances as they arise at trial.5 Because Judge
Steinkruger decided the motion before trial and the motion was
not renewed, we conclude that we should review the defendants
claim of prejudice based on the information presented to Judge
Steinkruger before trial.
Once joined, a motion to sever offenses encompasses two
separate inquiries.6 First, the trial court must determine
whether the charged offenses are so related as to make joinder
proper.7 Second, the court must determine whether joinder of the
offenses for trial would unduly prejudice the defendant.8
Because the defendants have conceded proper joinder, the only
issue before us is whether Judge Steinkrugers decision unduly
prejudiced the defendants.
This court will only overturn a trial courts denial of
a motion to sever if the defendant can show both an abuse of
discretion and actual prejudice.9 The first step in deciding
whether Judge Steinkruger erred in denying the motion to sever is
to determine whether Judge Steinkruger could conclude that the
evidence of the crimes would be cross-admissible if tried
separately.10 If the evidence would be cross-admissible if tried
separately, the defendant is hard-pressed to show actual
prejudice from the failure to sever, since the evidence would
have been admitted even if the judge had granted separate trials.
If the trial court determines the evidence is not cross-
admissible, the second step is to decide whether Judge
Steinkruger abused her discretion when she found the defendants
would not suffer actual prejudice from having this otherwise
inadmissible evidence admitted at the joint trial.
In the present case, the pretrial motion claimed that
the evidence of the assault on Dayton would prejudice the
defendants by influencing the jury in deciding whether the
defendants robbed and murdered J.H. But if evidence of the
assault on Dayton would have been admitted in a separate trial
involving whether the defendants robbed and murdered J.H., then
the defendants did not suffer any prejudice by its admission at
the joint trial. As we explain below, we conclude that Judge
Steinkruger did not err in determining that the evidence of the
earlier assault on Dayton would have been admissible in a
separate trial on the charges that the defendants robbed and
murdered J.H.
The facts alleged in the severance pleadings
established that the assault on Dayton and the robbery and murder
of J.H. occurred within forty-five minutes of each other. Olson
saw Roberts, Pease, Vent, and Frese assault Dayton. Dayton was
attacked by several people who beat and robbed him while he was
walking alone in downtown Fairbanks. The evidence suggested that
J.H. had undergone a similar, but more vicious, attack.
We have previously approved the admission of evidence
that a defendant committed a related offense within a short
period of time of another offense. In Hoffman v. State,11 in
defense of a sexual assault charge, Hoffman argued consent.12
This court approved admission of evidence that Hoffman had
violently sexually assaulted a different woman just prior to his
charged assault. We reasoned that the prior assault was relevant
to the charged offense because it could be inferred that Hoffman
was in the same emotional state during both encounters.13 In
Hoffman, we relied on Lerchenstein v. State,14 where we held that
Evidence Rule 404(b) allowed the introduction of evidence that a
murder defendant had been angry and combative . . . immediately
prior to the [homicide].15
In Miller v. State,16 we held that Millers robbery and
burglary at a near-by trailer less than an hour before the
charged murder were directly relevant to establish Millers state
of mind at the time of the murder, to show that he was acting in
concert with [his codefendant], and to prove his capacity to form
the specific intent required for murder.17 Likewise, in Ciervo
v. State,18 we approved the states evidence of a confrontation
between Ciervo and another individual five hours prior to the
charged shooting.19
Hoffman, Ciervo, and Miller support the admissibility
of the evidence of the Dayton incident at a separate trial on the
J.H. charges.20 Because the crimes were committed within a close
temporal and physical proximity to each other, apparently
involved the same perpetrators, and consisted of similar attacks
on the victims, the evidence of each crime would have been cross-
admissible under Rule 404(b)(1) to prove state of mind and
sequence of events.
The defendants argue that even though the evidence of
the Dayton offense would have been admissible under Evidence Rule
404(b), Rule 403 would have prevented it from being introduced at
a separate trial because the case against the defendants on the
robbery and murder of J.H. was weak. They argue that they were
prejudiced by admission of the stronger Dayton assault evidence,
and the jury might have improperly used that evidence to convict
them of the robbery and murder of J.H. In our view, Judge
Steinkruger properly could determine that the evidence that the
defendants were together during the assault and robbery of Dayton
was substantial evidence that the defendants had, only a short
time later, committed a similar assault on J.H. that ultimately
led to his death. The superior court properly could determine
that admission of this evidence was not unduly prejudicial.21
Because the evidence of the Dayton incident would have
been admissible at a separate trial on the J.H. incident, Judge
Steinkruger did not err under Criminal Rule 14 in denying the
motion to sever the charges.
Whether Pease and Roberts should be granted a
new trial based upon Judge Eschs ex parte
interview of a juror
During trial, Judge Esch informed the parties that a
juror had approached him, wanting to talk privately. He told the
parties he would meet with the juror on the record to see what he
wanted and then talk to the parties.
He met with the juror, Rhett Buchanan, who said he was
concerned about the defense attorneys conduct. Buchanan
mentioned Peases attorney, Lori Bodwell, but primarily cited two
incidents involving Robertss attorney, Dick Madson, where the
juror thought Madsons conduct had been inappropriate. Judge Esch
told Buchanan he would talk to the attorneys and ask them to act
more professionally. Buchanan said that would be fine, and the
conversation ended.
When the court reconvened after the weekend, Judge Esch
informed the parties that his conversation with Buchanan had not
been picked up by the tape and therefore there was no record of
the conversation. He told the attorneys that Buchanan was
concerned with Madsons conduct and gave the specific examples.
Judge Esch told the parties that Buchanan had indicated he would
not hold his concerns against Roberts. The parties did not raise
any objections about Judge Eschs meeting with Buchanan or ask
Judge Esch to take any additional action. Contrary to Judge
Eschs understanding, his conversation with Buchanan was
successfully recorded.
Roberts and Pease first contend that Judge Esch
violated their right to be present by resolving Buchanans
concerns without consulting them. They also assert that before
talking to Buchanan, Judge Esch told them only that he was going
to listen to Buchanans concerns. They argue that they were
misled because Judge Esch actually had a conversation with
Buchanan. Furthermore, having reviewed the tape recording, they
contend that Judge Esch made significant omissions in what
Buchanan said. In the first place, Judge Esch never mentioned
that Buchanan indicated he had some concerns about Bodwell,
Peases attorney. Second, Buchanan never said that he would not
hold Madsons behavior against Roberts. They point out that,
because Judge Esch informed them that the conversation with
Buchanan had not been recorded successfully, they had no
opportunity to review the courts actions or object until after
the transcript revealed the full conversation.
In general, criminal defendants have the right to be
present at every stage of the proceedings following their
indictment.22 The right to be present is rooted in the
defendants constitutional right to confront the witnesses against
him.23 And, it is protected by the guarantee of due process in
some situations where the defendant is not actually confronting
witnesses or evidence against him.24
The defendants right to be present extends
not only to those proceedings in which the
defendant confronts adverse witnesses or
evidence but also to any trial-related
proceeding at which defendants presence has a
reasonably substantial relation to defendants
ability to defend against the criminal charge
that is, to any stage of the criminal
proceeding that is critical to its outcome if
[the defendants] presence would contribute to
the fairness of the procedure.25
If a defendant has a constitutional right to be present
at a proceeding, the defendant must personally waive his right to
be present or expressly consent to allow the proceeding to occur
outside his presence.26
While a defendant has the right to be present at every
stage of the trial where his presence could have an impact on the
decision process, at least under federal law, he does not have an
absolute right to be present at every communication between a
judge and juror.27 [T]he mere occurrence of an ex parte
conversation between a trial judge and a juror does not
constitute a deprivation of any constitutional right.28 For
instance, in United States v. Olano,29 the Ninth Circuit held the
trial court did not violate the United States Constitution by
meeting with a juror outside of the presence of the defendants.30
There, midtrial, a juror informed the trial judge of a possible
conflict that might reflect on the jurors ability to be
impartial. The judge consulted the parties about whether they
wanted her to speak with the juror alone in chambers.31 Counsel
for one codefendant and the prosecutor consented; the other
attorneys did not object.32 The circuit court held the right to
be present had been waived.
Alaska case law prohibits ex parte communication between the
judge and jury about evidence once deliberations have begun.33
Additionally, it is error for a judge to receive the verdict
outside the presence of the defendant (even if counsel is
present).
_______________________________
1 See Frese v. State, Court of Appeals File No. A-7640; Vent
v. State, Court of Appeals File No. A-7647.
2 See, e.g., State v. Carriker, 238 S.E.2d 678 (S.C. 1977);
People v. Lopez, 158 A.D.2d 623, 623 (N.Y. App. Div. 1990) (The
objections made by the codefendants did not preserve the
allegations of error for this defendant.); Martinez v. State, 833
S.W.2d 188, 191 (Tex. App. 1992) (defendant may not rely on the
objection of his codefendant to preserve error unless defendant
has adopted the objection on the record); see also Owens-Corning
Fiberglas Corp. v. Malone, 916 S.W.2d 551, 556 (Tex. App. 1996)
(defendant in multi-defendant products liability action could
rely on evidentiary objections made by codefendants counsel where
trial court apparently required and defendants agreed that
objection made by one defendant would be considered as having
been made on behalf of all defendants and plaintiffs did not
object to such arrangement).
3 778 P.2d 1161 (Alaska App. 1989).
4 Id. at 1167 n.2.
5 See Petersen v. State, 838 P.2d 812, 816 (Alaska App.
1992).
6 See Ashley v. State, 6 P.3d 738, 741 (Alaska App. 2000);
Alaska R. Crim. P. 8; Alaska R. Crim. P. 14.
7 See Ashley, 6 P.3d at 741; Alaska R. Crim. P. 8.
8 See Ashley, 6 P.3d at 741; Alaska R. Crim. P. 14.
9 See Catlett v. State, 585 P.2d 553, 556 (Alaska 1978);
Cleveland v. State, 538 P.2d 1006, 1008-09 (Alaska 1978).
10 See Mathis v. State, 778 P.2d 1161, 1167 (Alaska App.
1989).
11 950 P.2d 141 (Alaska App. 1997).
12 Id. at 147.
13 Id.
14 697 P.2d 312 (Alaska App. 1985), affirmed on appeal,
726 P.2d 546 (Alaska 1986).
15 Hoffman, 950 P.2d at 147 (quoting Lerchenstein, 697
P.2d at 319).
16 778 P.2d 593 (Alaska App. 1989).
17 Id. at 596-97.
18 756 P.2d 907 (Alaska App. 1988), overruled on other
grounds by Swain v. State, 817 P.2d 927, 931-34 (Alaska App.
1991).
19 Id. at 911.
20 See also Vessell v. State, 624 P.2d 275, 278 (Alaska
1978) (defendants conduct at a store minutes after the armed
robbery of another store for which he was accused was admissible
to show that he was the same man who robbed the first store);
Kelly v. State, 663 P.2d 967, 972 (Alaska App. 1983) (bad checks
written by defendant near time he wrote the bad check for which
he was prosecuted were admissible to prove intent and absence of
mistake); Davidson v. State, 642 P.2d 1383, 1390 n.8 (Alaska App.
1982) (upholding trial courts refusal to sever charge based on an
assault occurring six days before other charged murder because
defendants actions could be viewed as a continuing course of
conduct and since the assault charge would have been admissible
in the murder trial to prove criminal intent or motive or to show
a common scheme or plan even if the charges had been severed).
21 A.R.E. 403.
22 See Alaska R. Crim. P. 38(a); Faretta v. California,
422 U.S. 806, 820 n.15, 95 S.Ct. 2525, 2533 n.15, 45 L.Ed.2d 562
(1975) (A defendant has a constitutional right to be present at
all stages of the trial where his absence might frustrate the
fairness of the proceedings.).
23 See U.S. Const. amends. VI, XIV; Alaska Const. art. 1,
1, 7; Dixon v. State, 605 P.2d 882, 884 n.3 (Alaska 1980); Henry
v. State, 861 P.2d 582, 592 (Alaska App. 1993).
24 United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct.
1482, 1484, 84 L.E.2d 486 (1985).
25 Malloy v. State, 1 P.3d 1266, 1271 (Alaska App. 2000),
overruled on other grounds, 46 P.3d 949 (Alaska 2002) (citations
omitted).
26 See Dixon, 605 P.2d at 885 n.8 ([T]he constitution[]
mandate[s] that the right [to be present] be personally exercised
by the defendant or with his express consent.).
27 See Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484; Alaska
R. Crim. P. 38.
28 Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484 (quoting
Rushen v. Spain, 464 U.S. 114, 125-26, 104 S.Ct. 453, 459, 78
L.Ed.2d 267 (1983) (Stevens, J., concurring)).
29 62 F.3d 1180 (9th Cir. 1995).
30 Id. at 1190-91.
31 Id.
32 Id. at 1190.
33 See Cox v. State, 575 P.2d 297, 300 (Alaska 1978)
(holding judges ex parte communication through bailiff regarding
jurys playback request was constitutional error); Richardson v.
State, 579 P.2d at 1372, 1374 (Alaska 1978) (playback of
testimony without presence of parties or judge and without
notifying parties was error); State v. Hannagan, 559 P.2d 1059,
1065 (Alaska 1977) (error to permit playback of testimony in
defendants absence without express waiver by defendant).
