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Morrow v. State (11/21/2003) ap-1907
Morrow v. State (11/21/2003) ap-1907
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
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ERIC MORROW, )
) Court of Appeals Nos. A-
8396/8405
Appellant/Cross-Appellee, ) Trial
Court No. 1SI-01-00260 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee/Cross-Appellant. ) [No.
1907 - November 21, 2003]
)
Appeal from the Superior Court, First Judi
cial District, Sitka, Larry C. Zervos, Judge.
Appearances: Michael Jude Pate, Office of
Public Advocacy, Sitka, and Brant McGee,
Public Advocate, Office of Public Advocacy,
Anchorage, for Appellant/Cross-Appellee.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for Appellee/Cross-
Appellant.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Eric Morrow appeals his conviction for failing to
appear at his felony sentencing.1 Morrow contends on appeal that
Superior Court Judge Larry C. Zervos abused his discretion in (1)
denying his motion to dismiss the indictment, (2) denying his
motion to bifurcate his trial, and (3) admitting evidence of two
prior incidents where Morrow had failed to appear. We conclude
that Judge Zervos did not abuse his discretion.
The State cross-appeals, arguing that Judge Zervos
erred in instructing the jury on the culpable mental state for
failure to appear. We conclude that this issue is moot in light
of Morrows conviction.
Factual background
On May 2, 2001, Morrow pleaded guilty to felony assault
in Sitka Superior Court. Both Morrow and his attorney were
present at this change of plea hearing. The court set July 12,
2001, as the sentencing date. Morrow failed to appear at the
July 12th hearing. The court issued a warrant for Morrows arrest
for failure to appear. Morrow was arrested on July 24, 2001, in
Sitka.
A grand jury indicted Morrow on one count of failure to
appear. At trial, Morrow testified that he had mistakenly
written down the sentencing date as August 12, 2001, rather than
July 12, 2001. A jury convicted Morrow of failure to appear.
Morrow appeals.
Morrows motion to dismiss the indictment
Susan Roberson, the in-court clerk for the Sitka
superior court, was the only witness called to testify before the
grand jury. She testified that she was acting as the in-court
clerk on the day that Morrow pleaded guilty to the assault
charge. She also testified that, at this hearing, the court
informed Morrow of the time and date of his sentencing.
Roberson further testified that she was the in-court
clerk at the scheduled July 12th sentencing hearing. She
testified that although the hearing started on time, Morrow was
not present; however, his defense attorney was. The defense
attorney offered no explanation for Morrows absence, and the
court issued a warrant for Morrows arrest.
At one point during the grand jury hearing, the
prosecutor offered the grand jury a certified copy of the
conditions of release form which the court gave to Morrow prior
to the change of plea hearing. This document did not say
anything about the sentencing hearing date which the court later
set after Morrow had changed his plea. The prosecutor apparently
introduced the form to show the grand jury that the court had
informed Morrow of his duty to appear at all scheduled court
proceedings. A grand juror then asked how they could know that
Morrow understood when his next court date was. The prosecutor
responded as follows:
Prosecutor: I think youre getting into
deliberations. The state has presented the
evidence that Im going to rely on in this
case. And again, its your decision whether
all of that evidence taken together,
unexplained or uncontradicted, would warrant
a trial jury to return a verdict of guilty.
The following exchange then ensued regarding the conditions of
release form:
Grand Juror: I have one more question on
this. The exhibit that you gave me, theres a
section down here called agreement by
defendant. I have reviewed the above order.
I promise to appear at all court hearings and
comply with all other conditions set. And
its not signed.
Prosecutor: I can tell you that its not the
practice of this jurisdiction that those be
signed, the copies of those. I think it
indicates on the bottom the copies are
distributed. Basically as copies are
distributed. That is true. That its not
signed. If you want further testimony on
that I can recall Ms. Roberson. It is not
the practice to have those signed in this
jurisdiction.
The prosecutor later reviewed all of the elements of
failure to appear under AS 12.30.060. The prosecutor
told the grand jury that it needed to decide if Morrow
acted knowingly when he failed to appear for his
sentencing. The grand jury returned a true bill
indicting Morrow for failure to appear.
Morrow moved to dismiss the indictment, arguing that
the prosecutors statement that the practice in the
jurisdiction was not to have defendants sign the form
amounted to improper testimony. Although witnesses
testified that the court often did not require
defendants to sign the form, the State conceded that
the prosecutors statement about local practice was
improper because it amounted to testimony by the
prosecutor. But the State argued that Morrow had not
been prejudiced by this error.
Under Stern v. State, when a defendant proves that the
grand jury heard improper evidence, the superior court must
engage in a two-part analysis.2 First, the court must remove the
improper evidence from the case heard by the grand jury and
decide whether the evidence that remains is legally sufficient to
support the indictment.3 If the indictment survives the first
step of the analysis, the court must then examine the degree to
which the improper evidence might have unfairly influenced the
grand jurys decision.4 The question becomes whether the
probative force of [the] admissible evidence was so weak and the
unfair prejudice engendered by the improper evidence was so
strong that it appears likely that the improper evidence was the
decisive factor in the grand jurys decision to indict.5
Judge Zervos applied the Stern standard. He concluded
that, after striking the prosecutors improper comment, there was
sufficient evidence to support the grand jurys decision to
indict. He then weighed whether the prosecutors comment could
have prejudiced Morrow. He concluded that the prosecutor had
responded inappropriately and probably incorrectly ... about
local practices. But he concluded that the evidence which the
State presented about Morrows knowledge of the date of his
sentencing hearing was strong because Morrow was present when the
date was set. Judge Zervos concluded that [t]he prosecutors
statement was such a small part of the [g]rand [j]ury
presentation and on such a side issue that it could not have been
a decisive factor in the [g]rand [j]urys decision to indict.6
Our review of the record convinces us that Judge Zervos
correctly applied the Stern analysis and did not err in refusing
to dismiss the indictment. Morrow argues that the prosecutors
comments constituted prosecutorial misconduct and therefore
required dismissal of the indictment. But, as Judge Zervos
pointed out, although the supreme court has previously admonished
prosecutors for making improper statements to the grand jury, it
has not ordered indictments dismissed on this basis if the
impropriety did not affect the grand jurys decision.7 Judge
Zervos pointed out that the prosecutorial misconduct which Morrow
alleged in this case had only a minor effect on the grand jury
proceeding. He accordingly refused to dismiss the indictment
based on prosecutorial misconduct and applied the Stern standard.
We agree with Judge Zervoss analysis.
Morrows motion to bifurcate his trial
When a court releases a defendant following a criminal
charge or conviction, a defendant who knowingly fails to appear
in court as required in that case is guilty of the offense of
failure to appear.8 If the person is released in connection with
a misdemeanor charge, the failure to appear is a misdemeanor
offense.9 But if the failure to appear is in connection with a
felony charge, the failure to appear is a felony.10 Morrow
argued that the jury would be prejudiced against him if the State
introduced evidence that the court proceeding at which he failed
to appear was a felony sentencing. He therefore proposed a
bifurcated trial. In the first part of the trial, the jury would
determine whether Morrow had knowingly failed to appear at a
scheduled court proceeding. Only if the jury found Morrow guilty
in the first part of the trial would the jury decide whether
Morrows release was in connection with a felony offense. Judge
Zervos denied the motion to bifurcate the trial but cautioned the
jury not to be prejudiced by the fact that Morrow had been
released on a felony. Morrow argues that Judge Zervos abused his
discretion in refusing to bifurcate his trial.
Thirty years ago the Alaska Supreme Court first noted
that it was within the discretion of trial courts to order
bifurcation.11 We have considered the issue of whether to
bifurcate trials in several more recent cases.12 The most recent
case in which we discussed bifurcation is Ostlund v. State.13
The State charged Ostlund with felony driving while intoxicated
(DWI).14 In order to convict Ostlund of felony DWI, the State
needed to establish that Ostlund drove while intoxicated and that
he had two or more prior convictions for driving while
intoxicated within the previous five years.15 Ostlund moved for
a bifurcated trial.16 In the first part of the trial the jury
would determine whether Ostlund had committed his current driving
while intoxicated offense.17 If the jury found him guilty of
this offense, Ostlund agreed to stipulate to his two prior
driving while intoxicated convictions.18 The trial judge denied
Ostlunds motion for a bifurcated trial; he was convicted and
appealed.19
We reversed Ostlunds conviction.20 We pointed out that
under the facts of that case, Ostlunds prior offenses were only
relevant to establish that his driving while intoxicated offense
was a felony.21 Presenting the jury with evidence of Ostlunds
prior convictions unnecessarily risked prejudicing the jury:
The state never argued that Ostlunds prior
offenses were relevant for any purpose other
than to establish that his driving while
intoxicated offense was a felony. By holding
a unitary trial in which the state was
allowed to present evidence that Ostlund had
two prior convictions for DWI, the judge
unnecessarily presented the jurors with
information that could have unfairly
prejudiced their deliberations. Having heard
that Ostlund had committed DWI on two prior
occasions, the jury might have used this
information for the purpose prohibited by
Evidence Rule 404(b)(1): to infer that
Ostlund was a person who characteristically
drove while intoxicated, thus making it more
likely that he was guilty of the current DWI
charge.[22]
But Morrows case is different. The fact that Morrow
failed to appear for a felony sentencing was relevant for a
purpose other than to establish that he had committed a felony.
Morrow contended that he made a mistake about when his sentencing
was scheduled. Such a mistake is much more plausible if Morrow
had failed to appear for a relatively insignificant hearing on a
misdemeanor case. The fact that the hearing which Morrow missed
was for sentencing on a felony case tends to make his claim of
mistake less believable. Therefore, Judge Zervos could determine
that the fact that the hearing that Morrow missed was a felony
sentencing had probative value.
Another factor in favor of Judge Zervoss ruling is the
policy argument which we discussed in State v. McLaughlin.23 The
State charged McLaughlin with felon in possession (possession of
a concealable firearm by a previously convicted felon).24
McLaughlin offered to stipulate to his prior conviction and have
the jury decide only the issue of whether McLaughlin knowingly
possessed a concealable firearm.25 The trial judge agreed to
this procedure, and the State filed a petition for review.26 We
granted the petition and reversed the trial courts decision.27
We held that the government was entitled to show that the reason
McLaughlin could not legally possess a firearm was that he had a
prior felony conviction.28 We reasoned that because possession
of a concealable firearm was generally legal, the governments
prosecution would not make sense to the jury unless it could show
that McLaughlin was a convicted felon.29 We concluded that it was
important for the jury to understand the nature of McLaughlins
offense in order to properly fulfill its role in the criminal
justice system.30
Judge Zervos could properly have similar concerns in
Morrows case. In arguing that any juror would know that failure
to appear for a court appearance is unlawful, Morrow points out
that a prospective juror is informed that if the juror fails to
appear for jury duty after receiving a summons, the juror may be
found in contempt and punished. He concludes that the jury might
not sympathize with someone who failed to appear. He also argues
that the jury might assume that Morrow was being prosecuted for a
$25 traffic ticket and not take the matter seriously and convict
him. But Morrows argument illustrates a concern that Judge
Zervos could have legitimately had: the jury might be prejudiced
by the lack of information about the nature of the charge Morrow
faced. The jury might erroneously suspect that the State was
prosecuting Morrow for missing a much less significant
proceeding. Judge Zervos could have concluded that it would be
better to accurately inform the jury about the nature of the
States case against Morrow.
We emphasize that trial judges have discretion to
determine when prior bad act evidence, including evidence of
prior convictions, is admissible at trial. This is a balancing
which trial judges perform under Evidence Rule 404(b)(1) and
Evidence Rule 403.31 If the trial judge determines that the
prior crimes evidence is relevant, the trial judge is to consider
the danger that jurors will view a previously convicted defendant
as a person who commits criminal acts and will presume his guilt
from his prior criminal acts. The judge must weigh this possible
prejudice against the probative value of the evidence.
In the circumstances of this case, we conclude that
Judge Zervos did not abuse his discretion in deciding that
evidence of Morrows felony charge was relevant, and that Morrows
motion for a bifurcated trial should be denied. We note that
Judge Zervos gave the jury a cautionary instruction and the jury
was not informed of the nature of the felony charge for which
Morrow did not appear.
Admission of Morrows prior incidents when he
failed to appear
The present case was not Morrows first failure to
appear. In 1988, Morrow failed to report to his probation
officer for three months. The probation officer then filed a
petition to revoke Morrows probation. A court hearing was set,
and Morrow did not appear at the hearing. In 1989, Morrow was
arrested on a bench warrant for this failure to appear. An
adjudication date was set on a petition to revoke Morrows
probation. Morrow did not appear at this hearing. Morrow
absconded to Washington where he lived for several years. In
1992, while back in Alaska, he was arrested on the outstanding
warrant issued due to his failure to appear at the 1989 hearing.
Prior to trial, the prosecutor asked Judge Zervos to
rule that she could introduce evidence of these incidents in
order to prove Morrows knowledge of his obligation to make court
appearances and to show that Morrows current failure to appear
was not a mistake. Judge Zervos ruled that these incidents would
be admissible if Morrow claimed that he did not appear because he
made a mistake about the date of the sentencing hearing. He
ruled that only the fact that Morrow had previously failed to
appear would come before the jury, not the nature of Morrows
underlying offenses, in order to lessen the danger of unfair
prejudice. Morrow testified at trial that he failed to appear
because he made a mistake about the date when he was supposed to
appear. Judge Zervos then allowed the disputed evidence to come
before the jury. Morrow argues that this was error.
Admission of evidence of prior bad acts is governed by
Evidence Rule 404(b). Evidence Rule 404(b)(1) forbids admitting
prior bad acts for the sole purpose of showing a persons
propensity to commit criminal acts.32 But the rule does allow
admission of prior bad acts for other purposes such as the
absence of mistake or accident. If such evidence is relevant for
a proper purpose, the trial court must still examine the evidence
under Evidence Rule 403, which directs courts to exclude such
evidence if the danger of unfair prejudice outweighs the
probative value of the evidence.33 The State must show that the
defendants past criminal behavior bear[s] a relevant factual
similarity to the charged offense before these past acts can be
admitted ....34
Judge Zervos could properly determine that Morrows
prior incidents of failure to appear were relevant to rebut
Morrows claim of mistake. The only issue at trial was whether
Morrow had knowingly failed to appear for his sentencing. Morrow
defended on the ground that he had made a mistake about the date
of the sentencing. The fact that Morrow had, on two previous
occasions, failed to appear for a court hearing was relevant to
rebut his claim of mistake. Morrow points out that there was a
danger of unfair prejudice. He also points out that the prior
incidents of failure to appear were for the same type of incident
for which he was on trial. He argues that the jury might have
misused the incidents for forbidden propensity purposes. He also
argues that these incidents were of limited probative value
because they occurred over ten years prior to the incident which
resulted in the current charge.
But Judge Zervos reached a different conclusion. He
concluded that Morrows prior incidents of failure to appear were
highly relevant to rebut Morrows claim of mistake. He also
concluded that if the State was limited to showing only that
Morrow had failed to appear on these two occasions, without being
permitted to show any of the underlying offenses, the danger of
unfair prejudice was limited.
We conclude that Judge Zervos did not abuse his
discretion in admitting the evidence of Morrows prior failures to
appear. This evidence was relevant to Morrows claim of mistake.
Failure to appear in court does not appear to be the kind of
prior offense which would unfairly prejudice the jury against a
defendant. And Judge Zervos took steps to limit the evidence to
the fact that Morrow had failed to appear and prohibited the
State from introducing any surrounding circumstances that might
unnecessarily inform the jury of Morrows prior criminal history.
Judge Zervos also gave the jury a cautionary instruction. We
find no error.
The States cross appeal
The State cross appeals, arguing that Judge Zervos
erred in instructing the jury on the culpable mental state for
failure to appear. But the State has conceded that, if we affirm
Morrows conviction, it is unnecessary for us to resolve this
claim. We accordingly decline to address it.
Conclusion
We have addressed Morrows claims of error and found
that those claims have no merit. We accordingly affirm Morrows
conviction.
The conviction is AFFIRMED.
_______________________________
1 AS 12.30.060.
2 827 P.2d 442, 445 (Alaska App. 1992).
3 Id. at 445-46.
4 Id.
5 Id. at 446 (citing Oxereok v. State, 611 P.2d 913, 916
(Alaska 1980); Panther v. State, 780 P.2d 386, 393-94 (Alaska
App. 1989); Newman v. State, 655 P.2d 1302, 1306 (Alaska App.
1982)).
6 Quoting Stern, 827 P.2d at 446.
7 Coleman v. State, 553 P.2d 40, 50 (Alaska 1976).
8 AS 12.30.060.
9 AS 12.30.060(2).
10 AS 12.30.060(1).
11 Kinsman v. State, 512 P.2d 901, 903-04 (Alaska 1973)
(citing Holmes v. United States, 363 F.2d 281 (D.C. Cir. 1966)).
12 See, e.g., Ross v. State, 950 P.2d 587, 592 (Alaska
App. 1997); Tallent v. State, 951 P.2d 857, 865 (Alaska App.
1997).
13 51 P.3d 938 (Alaska App. 2002).
14 Id. at 939.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id.
20 Id. at 942.
21 Id. at 941.
22 Id.
23 860 P.2d 1270 (Alaska App. 1993).
24 Id. at 1271.
25 Id. at 1272.
26 Id.
27 Id. at 1272, 1278.
28 Id. at 1277-78.
29 Id. at 1274, 1277-78.
30 Id. at 1277-78.
31 A.R.E. 403; A.R.E. 404(b)(1); Ostlund, 51 P.3d at 943-
49 (Alaska App. 2002) (Mannheimer, J., concurring).
32 A.R.E. 404(b)(1).
33 A.R.E. 403; Calapp v. State, 959 P.2d 385, 387-88
(Alaska App. 1998).
34 Calapp, 959 P.2d at 388 (citing Adkinson v. State, 611
P.2d 528, 530-32 (Alaska 1980) (affirming admission of evidence
that defendant had twice previously pointed a shotgun at
trespassers to rebut defendants assertion that his shooting of a
trespasser was an accident); Allen v. State, 759 P.2d 541, 546-47
(Alaska App. 1988) (affirming the admission of a prior similar
incident to rebut a defendants good Samaritan defense to a
terroristic threatening charge); Sheakley v. State, 644 P.2d 864,
873-79 (Alaska App. 1982) (affirming admission of two prior
incidents where defendant had attempted to gouge out eyes where
current charge for mayhem was for intentionally gouging the
victims eyes)); see also Kelly v. State, 663 P.2d 967, 972
(Alaska App. 1983) (affirming admission of evidence of a series
of bad checks written by defendant when current charge was for
writing a single bad check).
