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Stavenjord v. State (3/28/2003) ap-1863
Stavenjord v. State (3/28/2003) ap-1863
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
PAUL T. STAVENJORD, )
) Court of Appeals No.
A-7418
Appellant, )
Trial Court No. 3PA-S97-1196 CR
)
v. ) O P I
N I O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1863 March 28, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Margi A. Mock, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. John A.
Scukanec, 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.
STEWART, Judge.
A jury selected for a trial in Palmer found Paul T.
Stavenjord guilty of two counts of first-degree murder1 for
shooting Carl H. Beery and D.R. near Chulitna, a small, off-road
community in the Matanuska-Susitna Borough. Because this case
generated substantial publicity, Stavenjord argues that the
superior court erred when it denied his motion to change venue.
But we have examined the record and conclude that the superior
court did not abuse its discretion when it kept the trial in
Palmer after conducting jury voir dire.
Stavenjord also argues that the superior court
erroneously denied his motion to suppress evidence seized when
the police executed several search warrants. Stavenjord renews
his claim that the police intentionally or recklessly misstated
material facts and intentionally or recklessly withheld material
facts when applying for the search warrants. Because we conclude
that the superior court did not abuse its discretion, we reject
Stavenjords argument. Accordingly, we affirm Stavenjords
convictions.
Background facts
Beery and D.R. had a cabin in the Chulitna area of the
Mat-Su Borough. The Chulitna area is not on the road system but
is accessible by foot or off-road vehicles. Beery and D.R.
planned to spend the Memorial Day weekend of 1997 at their cabin.
When D.R. did not return to work the following Tuesday, May 27,
D.R.s brother, Donald Tidwell, Jr., borrowed a four-wheeler and
drove along the railroad tracks into the cabin. Tidwell found the
couples dogs at the cabin but no other sign of the couple.
Tidwell stopped at Stavenjords nearby cabin to ask
about D.R. and Beery. Stavenjord said that he and Beery had had a
falling out and that he had not seen or talked to the couple in
about a year. Nonetheless, he offered to help Tidwell look for
them. By the next day, Wednesday, May 28, the troopers had been
notified of the missing couple. Tidwell went to Pass Creek
(about two miles north of Chulitna) when he heard that a green
four-wheeler had been stuck in the creek since the previous
Saturday. He recognized it as belonging to D.R.
The next day, Thursday, May 29, Beerys body was
recovered from Pass Creek near the stuck four-wheeler. D.R.s
body was located a week later hidden in the bushes less than 150
feet away. Forensic examination found semen consistent with
Stavenjords DNA on D.R.s body. Each victim was killed by a
gunshot to the head with a small caliber weapon: Beery was shot
with a .22 caliber bullet; D.R. was likely shot with a .22
caliber bullet. Ultimately, the grand jury indicted Stavenjord
on two counts of first-degree murder, one count of first-degree
sexual assault,2 and two counts of second-degree theft.3
At trial, Stavenjord claimed that he shot Beery in self-
defense after Beery discovered that he was having consensual sex
with D.R. and opened fire at Stavenjord. Stavenjord asserted
that D.R. was accidently shot by Beery during the gunfight. The
jury convicted Stavenjord of the two counts of first-degree
murder and acquitted him of the other charges. Superior Court
Judge Eric Smith imposed consecutive 99-year terms.
Did the superior court properly uphold the challenged
search warrants?
As Judge Smith noted, the parties filed a plethora of
motions that he resolved before trial. In this appeal,
Stavenjord challenges the superior courts resolution of one of
those motions: Stavenjords claim that the testimony in support
of several search warrants included intentional or reckless
misstatements of fact and intentional or reckless omission of
material facts such that the evidence seized when the warrants
were executed must be suppressed.
On June 10, Alaska State Troopers Michael Brandenburger
and Martin Patterson sought search warrants for Stavenjords
person, cabin, and vehicles. The troopers focused on Stavenjord
as a potential suspect after they decided that a camper, who had
been camping close to the area where D.R.s four-wheeler and the
bodies were found, was not a prime suspect. Both troopers
testified in support of the warrant applications before
Magistrate David L. Zwink and the court issued the search
warrants. When the troopers executed the warrants, they
seized evidence including two .22 caliber rifles, three .22
caliber bullets found in a log near Stavenjords cabin, writings
by Stavenjord (which included an assertion of his whereabouts and
activities on Memorial Day weekend), and hair samples and tissue
swabs from Stavenjords person. In State v. Malkin,4 the
Alaska Supreme Court established the framework for evaluating a
defendants claim that an application for a search warrant
included material misstatements or omissions.5
[O]nce a misstatement or omission is
established, the burden of proving that it
was neither reckless nor intentional shifts
to the state. A failure to meet this burden
will vitiate the warrant if the misstatement
or omission is material, that is, if deletion
of the misstated information from or
inclusion of the omitted information in the
original affidavit would have precluded a
finding of probable cause. A non-material
omission or misstatement -- one on which
probable cause does not hinge -- requires
suppression only when the court finds a
deliberate attempt to mislead [the
magistrate].[6]
The parties presented testimony at an evidentiary hearing before
Judge Smith. Judge Smith entered findings and denied Stavenjords
motion.
Stavenjords motion rested on two main pillars. First,
Stavenjord claimed that the troopers deliberately misled
Magistrate Zwink by misstating and omitting information that
implicated the camper whom the troopers first suspected but had
ruled out as a prime suspect before they sought the Stavenjord
warrants. Second, Stavenjord claimed that the troopers misstated
or omitted information that would have corroborated Stavenjords
statements about his whereabouts on May 23 and May 24.
The State argues that we should reject Stavenjords
arguments and uphold the search warrants based on evidence
presented at the trial.7 As the State points out, Stavenjord
admitted at trial that he was involved in the homicides. And
Stavenjord admitted that his statements to the troopers about his
whereabouts on May 23 and 24 were not true. Thus, Stavenjords
case at trial affirmatively supported the magistrates decision to
issue the search warrants. Basically, the troopers told the
magistrate that their investigation had turned from the camper as
a prime suspect to Stavenjord when they discovered that several
of Stavenjords statements about his whereabouts around the time
of the homicides were false. But we need not uphold the warrants
by considering the trial testimony because Judge Smith directly
rejected Stavenjords claims and we conclude that Judge Smith did
not abuse his discretion when he denied this motion.8
Stavenjord could prevail on this claim only if the
purported misstatements or omissions were intentional or were
reckless and material to the issuance of the warrant.9 During
the evidentiary hearing that lasted several days, the parties
litigated what information the troopers learned and when they
learned that information. Judge Smith had a transcript of the
testimony in support of the application for the search warrants.
Judge Smith also observed Troopers Brandenburger and Patterson
testify at the evidentiary hearing and, thus, was able to judge
their credibility. After receiving all this testimony and
evidence, Judge Smith found that the troopers had not sought to
deliberately mislead the magistrate. From our review of the
record, we conclude the finding is not clearly erroneous.10
Because the troopers did not intentionally mislead the
magistrate, Stavenjord would have to show that the troopers
misstatements or omissions were reckless and were material to a
finding of probable cause.11
Of all the claimed misstatements and omissions, Judge
Smith mentioned only two areas that might have risen to the level
of a reckless misstatement or omission. First, the troopers did
not tell the magistrate that Stavenjords ex-wife had been
interviewed and supported Stavenjords claim about his whereabouts
on the Sunday of Memorial Day weekend, May 25. But Judge Smith
concluded these omissions were not material to the issuance of
the warrant. The record supports Judge Smiths analysis. The
thrust of the evidence the troopers presented to the magistrate
to undercut Stavenjords story of his whereabouts focused on
Stavenjords description of his movements on Friday, May 23, and
Saturday, May 24. We agree with Judge Smith that these
potentially reckless omissions were not material to a finding of
probable cause because Stavenjords whereabouts on Sunday were not
particularly relevant.
Judge Smith also found that the troopers failure to
inform the magistrate that they had not seen evidence of a .22
caliber weapon when visiting Stavenjords residence on June 1
might have been reckless, but not material. We agree. Trooper
Patterson testified that he went to Stavenjords cabin on June 1
to interview him and had not looked for anything in particular
when he was there. Testimony that no evidence of a .22 caliber
weapon was seen in Stavenjords home on June 1 would not have
undercut the other evidence supporting probable cause.
Judge Smith found no other claimed misstatement or
omission to be reckless. And negligent omissions or
misstatements are not included or excised from the warrant
application.12 But Stavenjord argues that the other
misstatements and omissions were reckless.13
A finding that a trooper recklessly omitted or
misstated facts contains both subjective and objective components
because a person who acts recklessly disregards a substantial and
unjustifiable risk despite the subjective awareness of the
risk.14 Judge Smith observed the testimony of both troopers who
appeared before the magistrate and was in a position to evaluate
their credibility when deciding whether either trooper was
subjectively aware of the risk of a purported misstatement or
omission. Except for the specific instances discussed above,
Judge Smith made no such finding regarding the other areas
advanced by Stavenjord.
We have examined the record to evaluate Stavenjords
remaining claims. Judge Smith found in some instances that the
troopers did not misstate or omit information or, by implication,
that the misstatement or omission was negligent. Based on our
review, the record supports Judge Smiths findings. Accordingly,
we conclude that Judge Smith did not abuse his discretion when he
denied the motion to suppress that was based on Stavenjords
Malkin claim.
In the superior court, Stavenjord also argued that the
troopers judge shopped when they applied for the search warrants
before Magistrate Zwink and not District Court Judge Peter
Ashman, the judge who had considered and issued all warrants in
the case before June 10. But Judge Smith made no specific
findings on this claim. Because Stavenjord did not press the
court for a ruling on this issue, this claim is not preserved.15
We express no opinion on whether the police had a duty to seek
all search warrants from Judge Ashman.
Did the superior court properly deny Stavenjords motion
to change venue?
The media serving the Mat-Su area, consisting of
newspapers in Anchorage and the Mat-Su Valley, Anchorage
television stations, and those radio stations in the region which
provide local news, provided intense coverage of the case
following the discovery of Beerys body. The coverage included
favorable descriptions of D.R. and Beery, portraying them as
happily-married and well-liked. On Saturday, June 14, the day
after the district court issued a warrant for Stavenjords arrest,
the troopers announced the beginning of their search for
Stavenjord as a suspect. A manhunt ensued and lasted until
Stavenjord turned himself in on July 13. Over fifty stories
broadcast on television and over a dozen published newspaper
stories, often on the front page, reported the manhunt. The
publicity receded after Stavenjord surrendered in July, but
coverage returned in October during pre-trial hearings.
Stavenjord moved to change venue on the basis of the publicity
the case generated. Judge Smith denied the motion but indicated
that Stavenjord could renew the motion during jury selection or
after it was complete.
In Mallott v. State,16 the Alaska Supreme Court adopted
the recommendation of the American Bar Association on the
standards to apply when considering a motion to change venue in a
case that has had substantial pre-trial publicity:
A motion for change of venue or
continuance shall be granted whenever it is
determined that, because of the dissemination
of potentially prejudicial material, there is
a substantial likelihood that, in the absence
of such relief, a fair trial by an impartial
jury cannot be had. ... A showing of actual
prejudice shall not be required.[17]
This standard effectively relieves a party from the burden of
demonstrating actual prejudice in the panel.18
The Mallott court also adopted the ABA standards for
the acceptability of a juror who has been exposed to pre-trial
publicity:
[a] prospective juror who has been exposed to
and remembers reports of highly significant
information, such as the existence or
contents of a confession, or other
incriminating matters that may be
inadmissible in evidence, or substantial
amounts of inflammatory material, shall be
subject to challenge for cause without regard
to the prospective jurors testimony as to
state of mind.[19]
Under this standard, a juror who claims not to be
unable to set aside preconceptions developed about the case must
be excused.20 Also, a juror who has been exposed to material
that is highly inflammatory or highly incriminating must be
excused even if the juror claims impartiality because such a
claim is considered suspect.21 On the other hand, jurors are not
automatically disqualified if they have some knowledge of the
facts of the case or an opinion on the case that is not based on
exposure to inadmissible evidence or other highly inflammatory
material. Instead, the trial court must base its decision on the
credibility of the juror if the juror claims impartiality.22
The vast majority of the coverage throughout the
history of the case focused on the underlying facts. However,
some coverage discussed information that was facially
inadmissible. The information included: (1) that Stavenjord had
been expelled from school for calling African-Americans coons,
(2) that as a juvenile he had been arrested five times once for
armed robbery of a liquor store and had been incarcerated for
two years, (3) that he had threatened to kill himself with a gun,
(4) that he had escaped from juvenile prison and led police on a
high speed car chase, (5) that he had committed an armed bank
robbery in Seward in 1971, (6) that after the Seward robbery, he
fled into the mountains but was caught two days later, and (7)
that he had attempted to rob the bank in order to support his
drug habit. However, an article that described all this
information also had a large section entitled A Changed Man which
chronicled Stavenjords life from 1976 forward. The section
portrayed Stavenjord as a reformed man, a craftsman living in the
Bush.
Once court proceedings began, television and newspapers
reported on the pre-trial motions, the amount of his bond,
whether he would wear leg restraints in the courtroom, and the
jury selection process.
Jury selection began on March 20, 1998. Prospective
jurors were given written questionnaires to complete. After
completing the questionnaires, the court allowed individual voir
dire of each prospective juror (outside the presence of the other
potential jurors), primarily about each persons knowledge of the
case. Out of the 184 potential jurors questioned in this initial
phase, 60 potential jurors were passed for cause, 47 were excused
for case-related reasons, and the balance were excused for
reasons unrelated to the case.
The court then proceeded with additional questioning of
those passed in the initial phase. No juror was challenged for
cause related to publicity during this phase of jury selection.
Stavenjord challenged two jurors for cause unrelated to
publicity, but the court denied those challenges and Stavenjord
excused them with peremptory challenges. By the end of jury
selection, Stavenjord exercised his normal ten peremptory
challenges, four additional peremptory challenges granted him by
the court, and four peremptory challenges as to alternate jurors.
Jury selection lasted through ten court days; the transcript for
those ten days is over two thousand pages. Jury selection ended
on April 7.
The record shows that twenty-six jurors were excused
for cause because of exposure to pre-trial publicity. Another
ten jurors were excused for cause because they were familiar with
Beery, D.R., Stavenjord, or members of their families. Eleven
jurors were excused for cause because of exposure to publicity
and other factors including personal hardship. Sixteen jurors
were eventually selected twelve plus four alternates. During
trial, three jurors were excused: two for personal reasons
unrelated to the case, and one after the juror notified the
court that she recalled reading or hearing something about
Stavenjords robbery conviction. The remaining alternate was
excused before the jury deliberated.
At the end of jury selection, Stavenjord renewed his
change of venue motion. Because of the number of jurors who were
excused based on exposure to publicity or knowledge of the
families involved in the case, Judge Smith reasoned that he had
to apply the substantial likelihood test set out in Mallott.
Judge Smith denied the motion after analyzing the nature and
timing of the publicity, including the inadmissible evidence
published, the size and character of the community, the venires
ties to the parties involved, and the responses of those who were
actually chosen to serve on the panel.
The question facing a court when there is intensive pre-
trial publicity is whether there is substantial reason to doubt
the impartiality of the jurors who remained after the selection
process was complete,23 or stated another way, what is the
likelihood that, despite voir dire, the jury panel harbor[s]
unrevealed prejudices as a result of the publicity.24
In Stavenjords case, the attorneys and Judge Smith
recognized the issues raised by the pre-trial publicity. Before
individual voir dire, the court had each potential juror answer a
long questionnaire that included several questions about media
exposure, what the juror learned about the case (whether through
the media or personal contacts), and whether the juror knew any
of about 200 people who might be mentioned in the case or called
as a witness. The court then allowed individual voir dire of
each juror.
The jury panel of twelve and the four alternates
selected included ten who remembered only the bare allegations of
the States case, four who knew details about the participants in
the case, had interests in the location of the homicides, or had
heard about Stavenjords disappearance, and two who had not heard
about the case. But all these jurors expressed confidence that
they could be impartial. None of the selected jurors personally
knew any of the parties involved in the trial, and at the end of
jury selection, none recalled any of the inadmissible evidence
about Stavenjord. The trial began April 13, 1998, more than
eight months after the end of the manhunt and continued into the
first week of June. However, during trial, one of the jurors
remembered Stavenjords involvement in a robbery. The juror
notified Judge Smith and she was excused from service.
In summary, most jurors knew only the bare details of
the crimes the State alleged. Of those who remembered more
detailed information, none of the information recalled was of an
inflammatory or prejudicial nature. And many other potential
jurors who did not serve on Stavenjords jury did not recall more
than the fact of the homicides and Stavenjords disappearance.
Even though there was substantial pre-trial publicity, it is
apparent that in an area as physically large as the Mat-Su area,
considering the size of its population, many people were not
influenced by the media coverage.25
Because a trial judge is in the best position to
evaluate the conduct and results of jury selection, we affirm the
superior courts denial of the motion for change of venue unless
we are convinced, after our own independent review of the record,
that the superior court abused its discretion.26 Based on the
proceedings in this case, which we have summarized above, Judge
Smith could reasonably conclude that the pre-trial publicity
complicated jury selection, but that the jurors ultimately
selected did not conceal latent prejudices about the case that
threatened Stavenjords right to a fair trial. Therefore, we
conclude that Judge Smith did not abuse his discretion when he
denied Stavenjords motion to change venue.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.100(a)(1)(A).
2 AS 11.41.410(a)(1) & (2).
3 AS 11.46.130(a)(1) & (2).
4 722 P.2d 943 (Alaska 1986).
5 Id. at 946 (citing Delaware v. Franks, 438 U.S. 154, 155-
56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)).
6 Lewis v. State, 862 P.2d 181, 186 (Alaska App. 1993)
(quoting Malkin, 722 P.2d at 946 n.6) (footnotes omitted).
7 See Hubert v. State, 638 P.2d 677, 680 n.2 (Alaska App.
1981) (noting that the better reasoned state cases follow well-
settled federal law that evidence presented at trial may be
considered on appeal when resolving a suppression issue).
8 See State v. Bianchi, 761 P.2d 127, 130 (Alaska App.
1988).
9 See Malkin, 722 P.2d at 946.
10 See Blank v. State, 3 P.3d 359, 365 (Alaska App. 2000).
11 See Malkin, 722 P.2d at 946.
12 Id. at 946-47.
13 The argued misstatements and omissions comprise several
discrete areas: the campers observation of smoke coming from
Stavenjords cabin on May 23; the whereabouts of the camper in the
Chulitna area during the Memorial Day weekend; underwear seen
near the campers Pass Creek campsite; the campers background and
record and other areas that might direct suspicion on the camper;
gray fibers found near D.R.s body and the similarity of those
fibers to an article of the campers clothing; receipts obtained
from the Igloo, a business at which Stavenjord said he made some
purchases while he was away from Chulitna on Memorial Day
weekend; Stavenjords purported meal at the Perch, a restaurant in
the Denali Park area; Stavenjords whereabouts during the Memorial
Day weekend; Stavenjords use of a four-wheeler on May 24;
Stavenjords refusal to voluntarily provide hair and blood
samples; and bad blood between Stavenjord and Beery.
14 See AS 11.81.900(a)(3) (defining recklessly); Davis v.
State, 766 P.2d 41, 45 (Alaska App. 1988).
15 See Taylor v. Johnston, 985 P.2d 460, 467 (Alaska
1999); Russell v. State, 934 P.2d 1335, 1340-41 (Alaska App.
1997); Marino v. State, 934 P.2d 1321, 1327 (Alaska App. 1997);
Erickson v. State, 824 P.2d 725, 733 (Alaska App. 1991).
16 608 P.2d 737 (Alaska 1980).
17 Id. at 748.
18 See Sever v. Alaska Pulp Corp., 931 P.2d 354, 360
(Alaska 1996); Mallott, 608 P.2d at 748.
19 Id. at 749, citing ABA Standards Relating to the
Administration of Criminal Justice, Fair Trial and Free Press,
8-3.5(b) (Approved Draft 1978).
20 See Nelson v. State, 781 P.2d 994, 997 (Alaska App.
1989); Arnold v. State, 751 P.2d 494, 500 (Alaska App. 1988).
21 Id.
22 See Mallott, 608 P.2d at 749-50.
23 See Cheely v. State, 861 P.2d 1168, 1174 (Alaska App.
1993).
24 Mallot, 608 P.2d at 748.
25 According to the 2000 census, the Matanuska-Susitna
Borough is the third largest population area in the state.
Information for Alaska from the 2000 census is available on the
state website by accessing
http://www.library.state.ak.us/asp/statestatistics.html and
clicking on Census 2000 Data for Alaska or on the U.S. Census
Bureau website by accessing
http://quickfacts.census.gov/qfd/states/02000.html.
26 See Newcomb v. State, 800 P.2d 935, 937 (Alaska App.
1990).
