Opinion
Court of Appeals No. A-11471 No. 6259
12-16-2015
PHILLIP JACKSON BAILEY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3PA-11-2586 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath, Judge. Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury convicted Phillip Jackson Bailey of first-degree murder for shooting his neighbor, Dale Prater, rejecting his claim that he acted in self defense. Bailey appeals his conviction, raising three claims of error. He argues first that the trial court erred in limiting the testimony of his proposed self-defense expert. Bailey also argues that the court erred in allowing the State to introduce evidence of his marijuana dealing to establish a possible motive for the murder. Lastly, he argues that the court erred in denying his motion for a mistrial based on the admission of this evidence.
AS 11.41.100(a)(1)(A).
For the reasons explained here, we conclude that the trial court's limitations on the proposed expert testimony were not an abuse of discretion. We agree with Bailey, however, that it was error to allow the State to introduce evidence of his marijuana dealing because the State had not established any nexus between the marijuana dealing and the murder. We nevertheless conclude that the error was harmless given the manner in which the case was litigated and the nature of the State's evidence against Bailey. We also conclude that the trial court acted within its discretion when it denied the motion for mistrial. We therefore affirm Bailey's conviction for first-degree murder.
Background facts
Phillip Bailey and Dale Prater lived in the same apartment complex in Wasilla. The two were close acquaintances, and Prater often went to Bailey's apartment to smoke marijuana.
On October 1, 2011, several people were at Bailey's apartment, including Bailey's friend Stacy Stroud. Prater arrived at the apartment in the afternoon, and he sat in the kitchen with Bailey and Stroud as the men passed around a large Winchester knife that Bailey was sharpening for a friend. During the men's conversation about this knife, Prater demonstrated how to silently approach someone from behind and "slit his throat." Bailey later testified that he believed Prater's demonstration was a threat directed at him.
At some point, Prater left the apartment to buy cigarettes for Bailey. Bailey testified that Prater took the Winchester knife with him. Prater returned to Bailey's apartment approximately one hour later. Stroud testified that Prater approached Bailey, handed him cigarettes, and stated either "Take it off my tab" or "Add it to my tab." Prater then smiled and began to turn away from Bailey. Stroud testified that, as Prater turned away, Bailey said, "That's what I thought," and drew his gun and shot Prater in the back of the head. Bailey's guests immediately fled. Bailey called 911 and waited outside his apartment for the police to arrive.
That evening, Bailey was interviewed by Wasilla Police Officer Joel Smith. Smith testified that Bailey told him he did not believe that Prater was armed when he shot him, except for a pocketknife Prater usually carried. Smith also testified that Bailey told him that he decided to shoot Prater after Prater left to buy cigarettes. Smith said Bailey told him he felt threatened when Prater was handling the Winchester knife earlier, but Bailey did not describe any threats or behaviors in the moments before the shooting that made Bailey think Prater was going to attack him. Bailey instead told Smith he was concerned that Prater wanted to steal his guns and his permanent fund dividend, and that he was trying to undermine Bailey's parental relationship with his daughter. (Bailey had recently separated from his wife and had a seven-year-old daughter.)
At trial, Bailey testified in his own defense and provided a significantly different version of events than the one he related to Officer Smith. Bailey testified that as he, Stroud, and Prater discussed the Winchester knife, Prater said he could stab Bailey or cut his throat, and that he could "take" or torture Bailey's daughter while Bailey was "helpless." Bailey also testified that Prater told him it was his practice to smile immediately before killing someone with a knife — so his victim would not see the attack coming and he could later claim the attack was not premeditated. Bailey told the jury that he was aware that Prater had been convicted of second-degree murder and had served fifteen years in jail for the homicide. Prater had given Bailey detailed accounts regarding the circumstances of this homicide. Prater also told Bailey that he had stabbed a fellow inmate while he was in jail. Bailey testified that these stories were "pretty scary" and "pretty intimidating."
Bailey testified that after Prater threatened him with the Winchester knife, he was scared and he retrieved his gun. He said he tried to stop Prater from reentering the apartment, but that Prater forced his way in and cornered him in the kitchen. Bailey said that when he threatened to call the police, Prater said he would "cut his fucking throat." Bailey said Prater then handed him cigarettes, smiled, and started to turn as if to reach for Bailey's sword that was on the kitchen counter or for the Winchester knife that Bailey believed to be on Prater's person. Bailey testified that because he believed Prater's smile meant that he was about to stab him, and because he believed that Prater was still armed with the Winchester knife, he raised his gun and intentionally shot Prater in the back of the head.
The jury rejected Bailey's claim of self-defense and convicted him of first-degree murder. At sentencing, the superior court imposed an 80-year sentence.
This appeal followed.
Bailey's argument that the trial court abused its discretion by limiting the testimony of his proposed defense expert
Prior to trial, Bailey provided notice that he intended to call retired Anchorage Police Officer Donald Mann as an expert on self defense.
Bailey offered Mann's expert testimony for several purposes. First, Mann would testify regarding the "time-lapse theory" in self-defense cases—that is, the theory that there may be a delay in time between a person's perception of a threat, the person's decision to take action, and the execution of that decision. As Mann explained during his pretrial voir dire, this delay makes it possible for a threatening person to change positions, and even turn around, in the time it takes a shooter to perceive the threat and react to it. In other words, the time-lapse theory explains how it is possible for a person to act in self-defense and still end up shooting a person in the back.
Second, Mann would explain "pre-attack cues"—that is, changes in body language, facial expression, or tone of voice that police officers are taught to identify and associate with impending aggression. Mann explained during the pretrial voir dire that most lay people identify these cues subconsciously, but they may struggle to articulate them without specific prompting.
Third, Mann would testify that Officer Smith did not, contrary to standard practice, ask Bailey whether he perceived pre-attack cues in the moments before the shooting, and that this failure explained the discrepancies between Bailey's trial testimony and his statements in the police interview.
The trial judge ruled that Mann could provide expert testimony about the deficiencies in Officer Smith's interviewing technique. But the judge precluded Mann from testifying about time-lapse theory and pre-attack cues. The judge concluded that the time-lapse theory was not relevant in Bailey's case because there was no claim that Prater charged Bailey and then abruptly turned away. The judge ruled that the concept of pre-attack cues did not require expert testimony because it was within the common knowledge of laypersons. Following these rulings, the defense did not call Mann as an expert.
On appeal, Bailey argues that the limitations the court imposed on his proposed expert testimony were an abuse of discretion that unfairly limited his ability to present a defense.
He asserts first that the jury should have been allowed to determine the relevancy of the time-lapse theory rather than the judge. We disagree. Under the Alaska Rules of Evidence, a trial judge has the duty to exclude irrelevant evidence. Here, Mann himself conceded that the time-lapse theory had no relevance to Bailey's case. And at trial Bailey directly testified that he knew he was shooting Prater in the back of the head. We therefore find no abuse of discretion in excluding this testimony.
See Alaska Evid. R. 402.
The trial judge's decision to preclude Mann's testimony on pre-attack cues presents a closer question. Bailey argues that this testimony was needed so that the jury could properly assess the reasonableness of Bailey's actions. But our review of the record confirms that expert testimony was not required on this subject. Bailey's attorney devoted much of her cross-examination of Officer Smith to his understanding of pre-attack cues — a concept the attorney expressly mentioned at several points — and the attorney pointedly stressed Officer Smith's failure to obtain a more specific account of the shooting.
Bailey also testified that he had witnessed various pre-attack cues before shooting Prater. He testified that Prater followed him into the kitchen, cornered him, said he would "cut [Bailey's] fucking throat" when Bailey threatened to call the police, smiled (consistent, Bailey asserted, with Prater's earlier statement that he always smiled before killing someone), and turned suddenly, as though reaching for a knife or the sword on the kitchen table. We agree with the trial judge that the jury would have been able to assess the significance of this testimony about pre-attack cues without the help of an expert.
Bailey also argues that Officer Mann's expert testimony would have helped the jury understand why Bailey's testimony at trial differed so sharply from his earlier statements to Officer Smith. But as the State points out, the trial judge specifically ruled that Officer Mann could provide expert testimony on the deficiencies of Officer Smith's interview technique, and it was Bailey's attorneys who made the decision to forgo this expert testimony and instead rely on the cross-examination of Smith. And, as previously noted, the record confirms that Bailey's attorney vigorously cross-examined Officer Smith regarding the flaws in his interview technique, including his failure to ask more specific questions about the threats Bailey may have perceived in the moments before he shot Prater.
Given this record, we conclude that the trial court's rulings limiting Mann's expert testimony were not an abuse of discretion and did not prevent Bailey from presenting his defense to the jury. We therefore reject this claim of error.
See, e.g., Vent v. State, 67 P.3d 661, 669 (Alaska App. 2003) (Mannheimer, J., concurring) (noting that a judge may exclude testimony if he determines it is based on "common sense rather than scientific expertise"); New v. State, 714 P.2d 378, 380 (Alaska App. 1986) (affirming exclusion of proposed expert witness testimony because the proposed testimony was "based on a common sense notion").
Why we conclude that the marijuana evidence was not admissible as motive evidence but that the error was harmless, given the larger context of the case
Bailey argues that the trial court abused its discretion by granting the State's mid-trial application to introduce evidence that Bailey sold marijuana, evidence the State offered to establish a possible motive for killing Prater. Bailey argues that the court should have excluded this evidence because it was too speculative and there was no demonstrated nexus between the alleged marijuana sales and the shooting. Bailey argues in the alternative that, assuming this evidence was sufficiently relevant, the court nevertheless should have granted a mistrial because it was unfair to Bailey's defense to let the State present this new theory of motive in the middle of trial.
Before trial, Bailey filed a motion in limine seeking to exclude any evidence that he smoked marijuana regularly and that he was under the influence at the time of the shooting. The court granted this motion in part: it ruled that the State could only offer evidence that Bailey smoked marijuana on the day of the shooting, and that several witnesses came to his home that day to smoke. The State did not object to this ruling or ask to introduce evidence that Bailey was known to sell marijuana—even though Stacy Stroud had testified before the grand jury about Bailey's alleged marijuana sales.
During voir dire, the defense attorneys questioned potential jurors regarding their attitudes toward marijuana use. Likewise, during opening argument, both parties mentioned that Bailey and almost all of the witnesses were under the influence of marijuana at the time of the shooting.
Stroud was called as the State's first witness. In preparation for cross-examining Stroud, the defense provided the State with a recording of a defense investigator's interview of Stroud. In response, the State re-interviewed Stroud. During the course of this new interview, Stroud discussed Bailey's marijuana sales in more detail than he had before the grand jury. The State then filed a mid-trial motion to admit evidence of Bailey's marijuana sales under Evidence Rule 404(b)(1), asserting that the evidence was relevant to establish Bailey's potential financial motive for the shooting.
Bailey opposed, arguing that this evidence was more prejudicial than probative. Bailey also argued that if the court admitted this evidence, he would be entitled to a mistrial, because the defense had structured its jury voir dire and opening statement around the assumption that only marijuana use, not marijuana sales, would be at issue in the case.
The trial judge denied Bailey's motion for a mistrial and allowed the State to recall Stroud and question him about Bailey's marijuana sales. Stroud testified that he had never seen Prater buy marijuana from Bailey but that he assumed this relationship existed because Bailey sold marijuana and because Prater and Bailey often smoked together in Bailey's apartment. (Bailey later testified that he had sold Prater marijuana in the past.) Stroud also testified that, approximately three or four weeks before the shooting, Bailey had suspected someone of stealing approximately $40 worth of marijuana from him, although there was no indication that Bailey thought Prater had done so.
We agree with Bailey that the trial court erred by admitting this evidence of Bailey's marijuana sales, given its limited probative value and its potential for unfair prejudice. We note that if the trial court had required a full offer of proof from the State before ruling on the State's newly developed "financial motive" theory, the court would have discovered how tenuous the theory was and how little Stroud's testimony actually supported it.
Compare Gould v. State, 579 P.2d 535, 539 (Alaska 1978) (excluding evidence of drug use that is "too attenuated and possessing too many gaps to show motive"), with Brown v. State, 2001 WL 322199, at *5 (Alaska App. Apr. 4, 2001) (unpublished) (finding drug dealing relevant to motive for murder where the victim had stolen drugs and money from the defendant's safe, and drugs were integral to the relationship between the defendant and victim), and Kugzruk v. State, 436 P.2d 962, 967 (Alaska 1968) ("[I]ndependent-crime evidence is admissible when it tends to complete the picture or set the stage for the crime for which the defendant is being tried."). --------
We nevertheless conclude that the error was harmless. Although Bailey and Stroud were both questioned about the marijuana sales, their testimony on this issue received very little attention from either party. The defense attorney referred to it briefly during closing argument but the prosecutor did not; nor did the State incorporate this alleged "motive" evidence into its theory of the case. We also note that the testimony was limited to Bailey's sale of marijuana to his immediate neighbors; the State did not portray Bailey as a "drug dealer" or otherwise suggest that his marijuana sales established him as a person of bad character.
Given this record, we conclude that the evidence that Bailey sold marijuana to his neighbors, although admitted in error, did not appreciably affect the jury's verdict in this case. We similarly conclude that, given this lack of prejudice, the trial court's denial of Bailey's motion for mistrial was not an abuse of discretion.
Conclusion
We AFFIRM the judgment of the superior court.