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Cathey v. State (12/13/2002) ap-1845
Cathey v. State (12/13/2002) ap-1845
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:
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WYNTER JAI CATHEY, )
) Court of Appeals No.
A-8092
Appellant, )
Trial Court No. 3AN-99-4497 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1845 December 13, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card, and
Milton M. Souter, Judges.
Appearances: Gayle Brown, Anchorage, for
Appellant. James L. Hanley, 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.
Wynter Jai Cathey and an accomplice, Faatafa Afusia,
broke into an apartment and robbed the two residents at gunpoint.
Based on this conduct, Cathey was convicted of first-degree
burglary, first-degree robbery, and two counts of third-degree
assault.1 He now appeals his convictions.
Cathey attacks his indictment by asserting that the
prosecutor knowingly used perjured testimony to obtain the
indictment, failed to present evidence suggesting that no gun was
used in the robbery, and misinstructed the grand jury regarding
the standard of proof required for an indictment. Cathey also
contends that the evidence presented to the grand jury was
insufficient to support his indictment for assault because the
evidence suggested that at least one of the victims was not
afraid of the robbers.
Finally, Cathey contends that he was entitled to a new
trial based on newly discovered evidence: the testimony of a
witness who (Cathey asserts) provided him with an alibi.
For the reasons explained here, we conclude that none
of Catheys arguments has legal merit, and we therefore affirm his
convictions.
Underlying facts
Justin Heinzeroth and Kimberlee Johnson were
napping in their apartment on Memorial Day afternoon
when two men kicked the front door open. Heinzeroth
was asleep in the front room, so the robbers saw him
first. One of the men (Cathey) pointed a large-caliber
revolver at Heinzeroth and demanded money.
Johnson was in the bedroom; she was awakened
by the crash of the door and Heinzeroths screams.
Johnson peeked into the front room and saw one of the
intruders pointing a gun at Heinzeroth. She then went
to the bedroom telephone and called 911 to report the
robbery-in-progress. While Johnson was on the phone,
the other robber (Afusia) entered the bedroom and
ripped the cord out of the telephone.
A few moments later, Cathey came into the
bedroom, threatened Johnson with the revolver, and
demanded to know if she had any jewelry. Johnson
handed Cathey a heart-shaped ring, but then she tried
to escape with $300 rent money that was stored in her
jewelry box. Afusia stopped her before she could run
from the apartment. Afusia subdued Johnson by holding
her to the floor with his foot on her head. Cathey was
then able to pry the $300 from Johnsons grasp. After
watching this, Heinzeroth handed over another $490 to
Cathey.
But Johnsons 911 call had not been in vain.
While all of this was occurring, the police were
already on their way to the apartment. At the sound of
approaching sirens, Cathey and Afusia fled the
apartment; they climbed into a getaway car driven by a
third accomplice and drove away. The robbers car was
barely out of sight when the police arrived. The
officers quickly obtained a description of the robbers
and their car, and then they set off in pursuit.
Within six minutes, the police spotted the
robbers car. After a short chase, the three robbers
abandoned their vehicle and tried to escape on foot.
All of them were quickly arrested. Afusia had the $300
that was stolen from Johnson. However, the police
never found the revolver or the $490 that Heinzeroth
said he surrendered to the robbers.
The police then brought the suspects back to
the apartment to see if Heinzeroth and Johnson could
identify any of them. Although Heinzeroth and Johnson
could not identify the getaway driver, Heinzeroth
unhesitatingly identified Cathey and Afusia as the two
men who entered the apartment and committed the
robbery.
Afusia had a distinctive physique: he stood
six foot six and weighed more than 300 pounds. Cathey
also had a distinctive appearance: his hair was in a
ponytail, and he was wearing a black-and-red jersey and
black pants. In addition, Heinzeroth explained that
you dont quickly forget the face of a person [who is]
pointing a large-caliber pistol at you. Heinzeroths
identification of Cathey was corroborated by the
contents of Catheys pants pocket: the pocket contained
the heart-shaped ring that Johnson had surrendered
during the robbery.
Catheys attacks on his indictment
Cathey claims that his indictment is flawed
because, during the presentation of the case to the
grand jury, the prosecutor failed to play the tape of
Johnsons 911 call. Cathey asserts that the tape of the
911 call was exculpatory evidence i.e., evidence that
the prosecutor was obliged to present under the rule
announced in Frink v. State2 because Johnson never
expressly told the 911 dispatcher that the robbers were
armed.
The record is unclear as to whether Johnson
told the 911 dispatcher that the robbers were armed.
According to the dispatcher, Johnson was hysterical and
some of what she said was hard to understand.
Moreover, regardless of Johnsons precise words, the
dispatcher evidently concluded that Johnson was
reporting an armed robbery in progress as shown by the
fact that twelve police officers were sent to the
apartment, and by the fact two of these officers stated
in their reports that they had been dispatched to an
armed robbery.
We further note that the 911 tape was played
for the jury at Catheys trial and, afterwards, Catheys
trial attorney did not argue that Johnson failed to
mention a gun.
But regardless of whether Johnson explicitly
told the 911 dispatcher that the robbers were armed,
the tape of Johnsons conversation with the dispatcher
did not constitute exculpatory evidence for purposes of
the Frink rule.
A prosecutors duty to apprise the grand jury
of exculpatory evidence extends only to evidence that
tends, in and of itself, to negate the defendants
guilt.3 Both Heinzeroth and Johnson testified at grand
jury that one of the robbers was armed with a revolver.
Even assuming that Johnson did not explicitly tell the
911 dispatcher that the robbers were armed, this
omission would not in and of itself demonstrate that
Heinzeroths and Johnsons grand jury testimony on this
point was false or mistaken. As our supreme court has
stated,
The mere fact of inconsistency does not
automatically convert ... evidence into
exculpatory material. If we were to adopt
[such a] broad reading of the exculpatory
evidence rule, [our] action would go a long
way toward turning [grand jury] proceedings
into a mini-trial. It is our intention to
avoid such a result ... .
Preston v. State, 615 P.2d 594, 602 (Alaska 1980). We therefore
conclude that even if Johnson did not expressly tell the 911
dispatcher that the robbers were armed, this would not
constitute exculpatory evidence for grand jury purposes.
In a related argument, Cathey asserts that the
prosecutor knowingly presented perjured testimony to the
grand jury. According to Cathey, the perjury occurred when
Johnson testified that she was robbed at gunpoint. Cathey
contends that the 911 call (specifically, Johnsons purported
failure to expressly say that the robbers were armed)
demonstrates that her grand jury testimony on this subject
was perjured. Cathey further contends that, because the
prosecutor had possession of the 911 tape, he must have
knowingly condon[ed] the introduction of [Johnsons] perjured
testimony.
As we have already explained, Johnsons exact words
during the 911 call are not clear. But even assuming that
Johnson failed to tell the 911 dispatcher that the robbers were
armed, this omission does not, in and of itself, affirmatively
prove that Cathey was unarmed, nor does it prove that Johnson
committed perjury when she testified that Cathey was armed. Even
less does it prove that the prosecutor knowingly condoned perjury
when he presented Johnsons testimony to the grand jury.
Next, Cathey argues that the prosecutor knowingly gave
the grand jurors a false instruction concerning the level of
proof required to support an indictment. Alaska Criminal Rule
6(q) states:
The grand jury shall find an indictment when
all the evidence taken together, if
unexplained or uncontradicted, would warrant
a conviction of the defendant.
This language has engendered litigation in the past, and one
could argue that its precise meaning remains unsettled to this
day. However, in Sheldon v. State, 796 P.2d 831 (Alaska App.
1990), this Court rejected the argument that the phrase evidence
... [that] would warrant a conviction of the defendant referred
to proof beyond a reasonable doubt. Instead, we interpreted
Criminal Rule 6(q) to mean that a grand jury should return an
indictment when convinced of the probability of the defendants
guilt.4
Cathey claims that the prosecutor in his case knowingly
misstated this standard to the grand jurors and that, in doing
so, the prosecutor was taking advantage of [his] position [as
grand jury advisor] to ... actively deceive the Grand Jury.
Cathey bases this claim on remarks that the prosecutor made just
before the grand jury began its deliberations. The prosecutor
told the grand jurors:
Prosecutor: [The] grand jury ... [is]
not expected to be a mini-trial where the
State produces all of the evidence that the
State has against the defendants. Your job
is to determine whether or not there is
enough evidence to show that [the alleged
crimes] probably happened ... . [Y]our job
as a grand juror is to take the evidence ...
and determine whether, if unexplained or
uncontradicted at trial, it supports the
charges and, basically, whether or not there
is a probability that this happened.
Cathey argues that the prosecutors remarks were a
conscious misstatement of the law. Cathey concedes
that the appellate courts of this state have never
expressly clarified the meaning of Sheldons phrase,
probability of guilt. Nevertheless, in six pages of
briefing, Cathey argues that this phrase must mean that
the grand jurys task is to decide whether, based on the
evidence presented at grand jury, a trial jury would
probably find the governments case proved beyond a
reasonable doubt. And, based on this proposed analysis
of Alaska appellate law, Catheys appellate attorney
asserts that the prosecutor actively deceive[d] the
grand jurors when he told them that the test was
whether Catheys alleged crimes probably happened.
We reject Catheys proposed interpretation of Sheldon
because it would have the grand jurors undertake a
meaningless exercise. Cathey suggests that the grand
jurys task is to decide whether, more likely than not,
the trial jury will find that the evidence presented to
the grand jury establishes the defendants guilt beyond
a reasonable doubt. But a trial jury does not hear the
same type of evidentiary presentation that a grand jury
hears.
Even assuming that the State presents exactly the same
evidence at trial as it did at grand jury (which, in itself, is
an unlikely event), the point of the trial is to allow the
defendant to confront the States witnesses through cross-
examination and impeachment, to present defense witnesses, and to
argue other possible interpretations of the States evidence. In
other words, a trial jury rarely hears the governments evidence
without explanation or contradiction. The trial jurys task is to
evaluate the governments evidence in light of potential
contradictions and exculpatory explanations. It therefore makes
little sense to ask the grand jurors to predict whether a trial
jury would convict the defendant if the trial jury were to hear
only the States side of the case.
Instead, we conclude that the prosecutors remarks to
Catheys grand jury satisfactorily convey Sheldons probability of
guilt test. Lawyers and judges might still reasonably debate
whether Criminal Rule 6(q) establishes a probable cause standard
or a more probable than not standard or whether these two
standards differ in any material way in a grand jury context.
But regardless of Sheldons precise meaning, Sheldon establishes
that the grand jury standard of proof is no more than a
preponderance of the evidence i.e., more probable than not.
Accordingly, we conclude that the prosecutor at Catheys grand
jury adequately conveyed the proper test when he told the grand
jurors that [their] job [was] to determine whether or not ...
[the alleged crimes] probably happened.
(We acknowledge that a grand jury must not only
determine whether a crime occurred but also whether the defendant
is legally accountable for that crime. However, Cathey does not
attack the prosecutors remarks on this ground. Moreover, given
the grand jury evidence in particular, Catheys arrest just
minutes after the robbery, the victims identification of Cathey,
and the discovery of the stolen ring in Catheys pocket there was
essentially no chance that the grand jury would fail to find that
Cathey was one of the men who broke into the apartment.)
We need to address one further point. Even if Catheys
proposed interpretation of Sheldon had been correct, this would
offer no support for Catheys accusation that the prosecutor
actively deceived the grand jurors. Catheys appellate attorney
spends six pages of her brief explaining why Sheldon should be
interpreted in the way she proposes. This fact inevitably leads
to one conclusion: regardless of the proper interpretation of
Sheldon, the issue was obviously debatable, and Catheys proposed
interpretation was only one potential resolution of this point of
law. Thus, there is no basis for Catheys attorneys accusation
that, when the prosecutor interpreted Sheldon differently, he was
actively trying to deceive the grand jurors by knowingly giving
them false instructions of law.
We take this opportunity to remind Catheys appellate
attorney, and all other litigators, of the reprimand that the
Alaska Supreme Court issued to one of the attorneys in Gregoire
v. National Bank of Alaska:
[Appellate counsel] has employed abusive
and intemperate language in his brief and has
accused the trial court and opposing counsel
of unethical and underhanded conduct. ...
[We reprimand counsel] and admonish[] him to
be governed in the future by the rules of
court and professional courtesy in his
representations to the court and in his
references to opposing counsel.
413 P.2d 27, 43-44 (Alaska 1966).
We also caution Catheys appellate attorney that, in
briefing cases to this Court, she is governed by Alaska
Professional Conduct Rule 8.2(a), which declares that a lawyer
shall not make a statement ... with reckless disregard as to its
truth or falsity concerning the ... integrity of a ... public
legal officer. In her briefing of this case, Catheys appellate
attorney has freely accused the grand jury prosecutor of
unethical and potentially criminal conduct. These charges are
not even colorably supported by the record. We urge her to
carefully consider before making similar unfounded charges in the
future. See In re Vollintine, 673 P.2d 755 (Alaska 1983), where
the supreme court publicly reprimanded an attorney who accused a
government official of perjury and who accused opposing counsel
of cheating and lying.5
Catheys final attacks on the indictment all concern the
sufficiency of the grand jury evidence to support particular
charges.
Cathey asserts that the evidence failed to support the
charge of third-degree assault on Kimberlee Johnson because the
evidence revealed that Johnson actively resisted the robbers and
attempted to escape with her rent money. According to Cathey,
Johnsons active resistance shows that she was not afraid of being
shot that she was in fact willing to risk being shot in order to
save the rent money and therefore the State failed to show that
Johnson was placed in fear of imminent serious physical injury as
required by the third-degree assault statute,
AS 11.41.220(a)(1)(A).
We recently rejected this same argument in Hughes v.
State, ___ P.3d ___, Alaska App. Opinion No. 1835 (October 17,
2002), 2002 WL 31355464. We explained that fear, as used in the
third-degree assault statute,
does not refer to fright, dread,
intimidation, panic, or terror. Rather, a
person is placed in fear of imminent injury
if the person reasonably perceives or
understands a threat of imminent injury. It
does not matter whether the victim of the
assault calmly confronts the danger or
quivers in terror. The question is whether
the victim perceives the threat.
Id., slip opinion at page 3.
Thus, the fact that Johnson had sufficient courage to
try to escape with the rent money, and then to struggle with the
robbers to retain possession of this money, does not disprove the
States allegation that she was placed in fear of imminent serious
physical injury. The grand jury evidence was sufficient to
support Catheys indictment on this charge.
Cathey next argues that the evidence was insufficient
to support Catheys indictment for armed robbery of Justin
Heinzeroth. The issue arises because the police never found the
$490 that Heinzeroth said he surrendered to the robbers. Thus,
it is arguable that Heinzeroth misstated the facts when he
claimed that, in addition to the $300 rent money that the robbers
pried from Johnsons hand, the robbers also made off with an
additional $490.
But, as the State points out, Cathey was not indicted
for two separate robberies committed on Johnson and Heinzeroth.
Rather, Cathey was indicted on one count of first-degree robbery.
This count, tracking the language of AS 11.41.510(a), charged
Cathey with using or threatening the immediate use of force to
take, or attempt to take, property from the immediate presence
and control of another. Thus, even if no money was taken from
Heinzeroth, Catheys use of force to take money from Johnson was
sufficient to support Catheys indictment for robbery.
Moreover, as we pointed out in McGrew v. State6,
[T]he crime of robbery is committed, not only
when a defendant uses force upon the person
who possesses the property, but whenever a
defendant uses force upon any person with the
intent to prevent or overcome anyones
resistance to the taking, or to compel any
person to engage in conduct that might
facilitate the taking. Thus, if [a
defendant] used force or threatened to use
force against [one person] with the intent of
preventing or overcoming resistance to the
taking of property from [another person],
[the defendant] committed robbery.
McGrew, 872 P.2d at 626.
The grand jury evidence showed that Cathey and Afusia
broke into the apartment, threatened Heinzeroth with a gun, and
demanded money. Even if the robbers only obtained money from
Johnson, the grand jury could justifiably conclude that the
robbers assault on Heinzeroth was intended to prevent or overcome
resistance to the taking of the property or the retention of the
property after taking.7 Thus, the grand jury evidence would
support Catheys indictment for robbery even if Cathey and his
accomplice got no money from Heinzeroth.
Finally, Cathey argues that the grand jury evidence was
insufficient to support Catheys indictment for armed robbery
(i.e., first-degree robbery) as opposed to unarmed robbery (i.e.,
second-degree robbery). But this argument is a replay of Catheys
claim regarding the 911 call i.e., his claim that Johnson failed
to expressly tell the 911 dispatcher that the robbers were armed.
We have already explained that, even assuming that Johnson failed
to expressly mention the gun to the 911 dispatcher, her omission
did not undermine the evidence (i.e., Johnsons and Heinzeroths
grand jury testimony) that Cathey was armed and that he
threatened both victims with the gun. This evidence was
sufficient to support Catheys indictment for armed robbery.
For all of these reasons, we uphold the indictment.
Catheys motion for a new trial
After Cathey was tried and convicted of all
the crimes alleged in the indictment, he filed a motion
for a new trial. In support of the requested new
trial, Cathey presented the testimony of Melanie
Blazka. Ms. Blazka testified that, on the afternoon of
the robbery, she saw Cathey standing next to the
vehicle that was later used by the robbers as their
getaway car. According to Blazka, Cathey was alone.
Based on Blazkas testimony, Cathey argued that he must
have been the getaway driver (rather than one of the
two men who broke into the apartment).
But there were reasons to distrust Blazkas
testimony. According to Blazka, she had met Cathey
some eight years before, when they were both living at
the McLaughlin Youth Center. Blazka testified that,
until the day of the robbery, she had not seen Cathey
since their days at McLaughlin, but she conceded that
she had renewed her acquaintance with Cathey after he
was arrested and jailed for the robbery, and that she
had spoken with him frequently since then.
Moreover, the evidence indicated that even if
Blazka did see Cathey standing beside the vehicle, this
was approximately two hours before the robbery was
committed. Based on the series of events that Blazka
described (leaving work, stopping at the grocery, and
then seeing Cathey on the street), Blazka saw Cathey at
about quarter to four in the afternoon. But Johnson
called 911 to report the robbery-in-progress at 5:27
p.m.. Given this discrepancy, it was quite possible
for Cathey to have been standing on the street as
Blazka described, and then later to have committed the
burglary and robbery as Johnson and Heinzeroth
testified.
After hearing Blazkas testimony, Superior
Court Judge Larry D. Card denied Catheys motion for a
new trial. First, Judge Card concluded that Blazka was
not a credible witness. Judge Card next found that,
even if Blazkas testimony was believed, it would not
support Catheys proposed alibi for the burglary and
robbery. The judge found that Blazkas observation of
Cathey on the street occurred some two hours before the
burglary and robbery. Moreover, the evidence was
strong that Cathey was one of the robbers. As Judge
Card noted, both victims described the robber with the
gun as having a ponytail and wearing distinctive
clothing descriptions that matched Catheys appearance
and Johnsons ring was found in Catheys pocket.
On appeal, Cathey argues that Judge Card was
wrong when he found that Blazka was not a credible
witness and when he found that, in any case, the timing
of Blazkas observation did not establish an alibi for
Cathey. In essence, Cathey claims that Judge Card
abused his discretion when he did not view the evidence
in the light most favorable to Cathey.
When a judge decides a motion for new trial
based on newly discovered evidence, the ultimate
question is whether the newly discovered evidence would
likely produce a different verdict.8 Assuming that the
defendant establishes diligence in discovering the new
evidence, the judges task is to assess the credibility
of the newly discovered evidence [as well as the]
probable impact of that evidence.9 Having reviewed the
record in this case, we conclude that Judge Cards
findings regarding the credibility and probative force
of Blazkas testimony are based on reasonable inferences
from the evidence. We therefore uphold Judge Cards
ultimate ruling that Blazkas testimony, if heard at a
new trial, either would not be believed or, if
believed, would not produce a different verdict.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 11.46.300(a)(1), AS 11.41.500(a)(1), and AS
11.41.220(a)(1)(A), respectively.
2 597 P.2d 154, 164-66 (Alaska 1979).
3 State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994).
4 Sheldon, 796 P.2d at 836-37.
5 Vollintine, 673 P.2d at 756.
6 872 P.2d 625 (Alaska App. 1994).
7 AS 11.41.510(a).
8 Salinas v. State, 373 P.2d 512, 514 (Alaska 1962); Lewis
v. State, 901 P.2d 448, 450 (Alaska App. 1995); Charles v.
State, 780 P.2d 377, 383 (Alaska App. 1989).
9 Gonzales v. State, 691 P.2d 285, 287 (Alaska App. 1984).
