Opinion
Court of Appeals No. A-11414 No. 6417
12-21-2016
JEREMY C. NELSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Schwaiger, 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-11-170 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly Cutler, Judge. Appearances: Michael Schwaiger, 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).
Jeremy C. Nelson was convicted of first-degree murder and attempted first-degree murder after he shot two of his neighbors at their cabin in Trapper Creek. On appeal, Nelson argues that the superior court impermissibly limited his cross-examination of two of the State's witnesses, by ruling that his attorney had to let the witnesses review the recordings of their prior statements before they were cross-examined in front of the jury about those statements.
AS 11.41.100(a)(1)(A).
AS 11.41.100 & AS 11.31.100.
Nelson was also convicted of first-degree assault, AS 11.41.200(a)(1), and second-degree assault, AS 11.41.210(a)(1), but those assault counts were merged with the attempted murder conviction at sentencing.
Although we agree that the trial judge's procedural ruling does not accurately reflect the law governing cross-examination of a witness with extrinsic evidence of a prior inconsistent statement, we disagree with Nelson's claim that the statements he sought to introduce qualified as "prior inconsistent statements" for purposes of Alaska Evidence Rules 801(d)(1)(A) and 613(b). We therefore conclude that the trial judge's handling of this matter does not constitute reversible error.
Nelson also separately argues that the superior court erred by allowing the State to call Nelson's girlfriend as a rebuttal witness after she listened to the testimony of other rebuttal witnesses — which Nelson asserts was in violation of a court order excluding witnesses from the courtroom. For the reasons explained here, we conclude that the superior court did not abuse its discretion by allowing this witness to testify.
Facts and proceedings
On January 22, 2011, Verna and Robert Carey were living in a cabin in Trapper Creek. Around 10:00 p.m. that evening, the lights in their cabin went out. When the Careys went outside to investigate, they saw a neighbor, Jeremy Nelson, standing by their cabin's generator. According to Verna Carey, Nelson was wearing camouflage clothing and snowshoes. He was holding a shotgun and a pistol.
Nelson told the Careys he was looking for someone. Robert Carey responded that Nelson was on private property and that he had to leave. After repeating that he was looking for someone, Nelson leveled the shotgun and shot Robert Carey in the chest, killing him.
Verna Carey turned and ran inside the cabin. She made it through the cabin's mud room, but Nelson shot her in the shoulder. Verna lay on the cabin floor and played dead. After Nelson left, she called 911 and told the operator that Nelson had shot her and Robert. She said that the police would "end up having to kill Jeremy, Jeremy won't go down otherwise, he'll kill whoever he can."
The troopers eventually located Nelson in the covered bed of a pickup truck parked on the nearby property of Rudy Gestl. According to Gestl, Nelson came to his cabin shortly after 11:00 p.m. and told him that he had killed Robert and Verna Carey. Nelson told Gestl he unplugged the Careys' generator and shot and killed them after they came outside to investigate.
The State charged Nelson with first-degree murder for killing Robert Carey and with attempted first-degree murder, first-degree assault, and second-degree assault for shooting Verna Carey.
At Nelson's trial, Verna Carey identified Nelson as the shooter and Gestl testified to Nelson's confession. The State also presented physical and circumstantial evidence of Nelson's guilt. A trooper testified that he observed snowshoe tracks leading from Nelson's cabin to the Careys' cabin and back. The tracks matched snowshoes found in Nelson's cabin, and Nelson's girlfriend Kerry Cook identified the snowshoes as belonging to Nelson. A bloodstain was found on one of the snowshoes and DNA testing did not exclude Robert Carey as a source of the blood.
In addition, the State's ballistics expert identified a .45 caliber pistol found in Nelson's cabin as the gun that fired a bullet found lodged in the wall inside of the Careys' cabin. The expert also determined that a shotgun shell found in the entryway of the Careys' cabin was fired from a 12-gauge shotgun that was found in Nelson's cabin, and the 12-gauge slugs discovered in Nelson's cabin matched the slug recovered from Robert Carey.
To suggest a motive for the shooting, the State presented evidence that Nelson had told an employee of a local bank that Freddie Carey — the son of Verna and Robert — had been after his girlfriend Kerry Cook, and that if Freddie ever came near Cook, he would kill him. In closing argument, the State suggested that Nelson might have gone to the Careys' cabin looking for Freddie.
The State also presented evidence that the troopers found Nelson hiding in a truck outside Gestl's cabin and that Nelson refused to come out for two hours. Lastly, the State introduced evidence that Nelson told various witnesses, including his girlfriend, an entirely different version of events from the one he related to Gestl — a version even Nelson's attorney conceded in closing argument was "total BS." The State pointed to this other, fabricated story as additional circumstantial evidence of Nelson's guilt.
In his defense, Nelson argued that the State's investigation was inadequate and that there were several other potential suspects who might have framed Nelson — including Verna Carey and Rudy Gestl. Nelson also argued that Verna Carey's testimony was so implausible that the jury could not be certain of Nelson's guilt.
The jury found Nelson guilty of all charges. He now appeals.
Nelson's claim that the superior court improperly limited his ability to impeach Verna Carey and Rudy Gestl with extrinsic evidence of their prior statements
Nelson claims that the superior court prevented him from effectively cross-examining two of the State's witnesses, Verna Carey and Rudy Gestl, and he argues that he is entitled to a new trial as a result.
Nelson's first claim of error involves Verna Carey's statements to the 911 operator on the night of the shooting. When Nelson's attorney cross-examined Carey, he asked her if she told the 911 operator that "[the police are] going to end up having to kill Jeremy, Jeremy won't go down otherwise, he'll kill whoever he can." Carey responded that she might have made this statement, but she did not remember making it. The attorney then asked Carey if she remembered telling the 911 operator that "[the police] shouldn't even hesitate, he'll shoot anybody." Carey answered "no" — in other words, no she did not remember making that statement.
Nelson's attorney then suggested that listening to the 911 recording might refresh Carey's recollection as to whether she made these prior statements. The trial judge interrupted and told the attorney, in a bench conference, that if he wanted to play Carey's recorded statement, he had to first give her a chance to review the statement outside the presence of the jury.
See Alaska R. Evid. 612(a) (permitting a witness's recollection to be refreshed by any item, but the material used to refresh the witness's recollection cannot be shown to the jury except at the request of opposing counsel).
At that point, the attorney insisted that he was not offering the recorded statement to refresh the witness's recollection; instead, he was purportedly offering it as evidence of a "prior inconsistent statement." The attorney pointed out that Alaska Evidence Rule 613 permitted impeachment of a witness with extrinsic evidence of their prior inconsistent statement without requiring the proponent of the evidence to first play the recorded statement for the witness outside the presence of the jury.
See Alaska Evid. R. 613(b)(2) ("[I]n examining a witness concerning a prior [inconsistent] statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time.").
The judge maintained that, even so, the attorney still had to allow Carey to review the statement outside the presence of the jury before it was introduced. The judge then excused the jury and Nelson's attorney played the audio recording for Carey, who indicated that she now remembered making the prior statements. The jury was then recalled, Carey testified that she made the statements at issue, and Nelson's attorney then played the recording of the 911 call for the jury.
The superior court made a similar procedural ruling during Nelson's attorney's cross-examination of Rudy Gestl. The attorney asked Gestl if he remembered telling the troopers on the night of the shooting that Nelson was high on drugs. Gestl said he did not remember telling the troopers that. The attorney then argued that he was entitled to play the recording of Gestl's statement to the jury. The judge disagreed, and again ruled that the attorney could not play the recording of Gestl's statement for the jury unless Gestl was first given the opportunity to hear the recording outside the presence of the jury.
Following this ruling, Nelson's attorney elected not to cross-examine Gestl about his prior statement. Instead, the attorney called a trooper to testify that, on the night of the shooting, Gestl told him Nelson had been drinking and smoking marijuana.
On appeal, Nelson argues that he should have been allowed to play Verna Carey's and Gestl's prior recorded statements to the police in front of the jury without giving them the opportunity to hear the statements.
Although we agree with Nelson that the judge appears to have been mistaken about the procedure for impeaching a witness with extrinsic evidence of a prior inconsistent statement under Alaska Evidence Rule 613(b), we disagree with Nelson's underlying assumption that these statements qualified as prior inconsistent statements as that term is defined under Alaska Evidence Rule 801(d)(1)(A).
Impeachment with a prior inconsistent statement under Evidence Rule 613 does not require presenting the prior statement to the witness outside the presence of the jury
It appears from the record that the trial court was in error regarding the law that governs impeachment by extrinsic evidence of a prior inconsistent statement. Although the common law used to require the proponent of such evidence to show the written statement to the witness outside the presence of the jury, that common-law doctrine was abrogated by Evidence Rule 613(b).
See, e.g., Active v. State, 153 P.3d 355, 362 (Alaska App. 2007).
Under Rule 613(b), before extrinsic evidence of a prior inconsistent statement may be admitted, the examiner must "afford[] the witness the opportunity, while testifying, to explain or deny [the] prior statement" but the recorded statement "need not be shown nor its contents disclosed to the witness at that time." As the commentary to Rule 613(b) explains, the only foundation required to impeach a witness with extrinsic evidence of a prior inconsistent statement is to ask the witness "to identify the statement after being reminded of its substance and to whom it was made, and either to admit having made the statement and explain the circumstances, or to deny it."
Alaska Evid. R. 613(b)(2). We note, however, that opposing counsel is entitled to see the recorded statement outside the presence of the jury, if requested. Id.
See Alaska Evid. R. 613(b) cmt. para. 2; see also Alaska Evid. R. 801(d)(1)(A) cmt. para. 4.
Here, the superior court appeared to believe that Evidence Rule 801(d)(1)(A) required that the witness be given a chance to review the prior inconsistent statement outside the jury's presence. But the commentary to Evidence Rule 801(d)(1)(A) does not suggest that this is required; to the contrary, the commentary to Rule 801(d)(1)(A) directly references the foundational requirements under Evidence Rule 613.
Alaska Evid. R. 801 (d)(1)(A) cmt. para. 4 ("[C]ounsel should lay the foundation for an inconsistent statement while the witness ... is testifying, as under Rule 613.")
Thus, assuming that the prior statement qualifies for admission as a prior inconsistent statement under Evidence Rule 801(d)(1)(A), it would be error for a court to require the proponent of that evidence to lay a foundation greater than the one required under Evidence Rule 613(b).
In Nelson's case, however, the prior statements were not inconsistent with the two witnesses' prior testimony at trial. We therefore agree with the State that the court's apparent misunderstanding of the foundational requirements for introduction of extrinsic evidence of a prior inconsistent statement was harmless in the context of Nelson's case.
The statements did not qualify as prior inconsistent statements
Under Evidence Rule 801(d)(1)(A), a prior statement qualifies as a "prior inconsistent statement" if "the declarant testifies at the trial ... and the statement is inconsistent with the declarant's testimony" (emphasis added).
Here, neither Carey's nor Gestl's prior statements were inconsistent with their trial testimony. Rather, the prior statements concerned other matters — matters that they had yet to discuss in their trial testimony and about which they were being questioned for the first time. Moreover, the record is clear that Nelson's attorney was not trying to introduce the witnesses' prior statements for the truth of the matters asserted therein. Rather, he wanted to introduce those statements for the fact that they had been made by these witnesses. That is, the defense attorney wanted to argue (and ultimately did argue) that the statements about Nelson's purported dangerousness and his purported drug use were false and that Carey and Gestl made these statements in an effort to frame Nelson and to mislead the police into thinking that Nelson was so dangerous that he needed to be shot and killed before he would surrender.
Thus, because the prior statements to the police were not inconsistent with Carey's and Gestl's testimony at trial, the statements did not qualify as "prior inconsistent statements," and the procedures governing the admission of extrinsic evidence of prior inconsistent statements under Evidence Rule 801(d)(1)(A) and 613(b) did not apply.
The defense attorney was still entitled to introduce the prior statements for the fact that they were made — but to do this, the defense attorney had to affirmatively offer evidence that Carey and Gestl had, in fact, made these statements. We note that when Nelson's attorney attempted to establish the necessary foundation by asking Carey whether she made the prior statement, she answered that she did not remember making the statement. Under these circumstances, Carey's lack of memory did not automatically open the evidentiary door to admission of the prior statement. Rather, it left Nelson's attorney without the foundation he needed to introduce the statement because he still lacked affirmative evidence that she had indeed made the statement.
At that point, Nelson's attorney had a number of options. He could show the statement to Carey outside the presence of the jury in an attempt to refresh her recollection. Or he could call another person who could testify that Carey made this prior statement (as he chose to do later with Gestl's prior statement). Or he could lay the foundation for introducing the audio recording of the 911 call that contained Carey's prior statement. But none of these options involved subjecting either Carey or Gestl to the alleged "shock and embarrassment" of being immediately confronted on the stand with the recordings of their prior statements.
The superior court did not abuse its discretion by allowing Nelson's girlfriend to testify in the State's rebuttal case
Nelson next argues that the court erred in allowing the State to recall Kerry Cook, Nelson's girlfriend, as a rebuttal witness because Cook had been sitting in the courtroom listening to the testimony of other rebuttal witnesses.
Under Alaska Evidence Rule 615, if a party requests it, or on the court's own motion, a court may exclude witnesses from the courtroom. The purpose of this rule is to prevent the "fabrication, inaccuracy and collusion" that might result if a witness is exposed to another witness's testimony.
Alaska Evid. R. 615 cmt. para. 1.
Here, before the defense presented its case, the prosecutor asked the court to exclude all "civilian witnesses" (that is, non-law enforcement witnesses) from the courtroom under Evidence Rule 615. Nelson did not object, and the court ordered the witnesses to sit in the hallway.
After the defense rested its case, the State called several rebuttal witnesses, including Cook, who had testified earlier in the State's case-in-chief. Nelson's attorney objected to Cook's testimony, pointing out that she had been present in the courtroom that day while several witnesses testified — in violation, he argued, of the judge's exclusion order.
In response, the court pointed out that Nelson's attorney never moved to exclude the State's witnesses. Nelson's attorney did not dispute this, but he argued that he had concurred in and relied on the State's motion.
The superior court declined to exclude Cook as a witness. The judge said "I would feel differently if I thought there was some bad faith here and some advantage trying to be gained. But it seems to be an inadvertence and my ruling is [the] defense does not get the relief of having [Cook] excluded." The judge noted that Nelson's attorney could cross-examine Cook about her presence in the courtroom and whether it affected her testimony.
On appeal, Nelson argues that he was prejudiced by Cook's rebuttal testimony that she and Nelson were "still very much in love." He points out that the State relied on this testimony in closing argument to suggest that Cook was protecting Nelson when she testified that she had little memory of the night of the shooting.
Nelson contends that this testimony and the State's related closing argument undermined Cook's credibility with the jury. Even if this is true, Nelson has not established any nexus between Cook's testimony that she and Nelson were still in love and her exposure to the testimony of other witnesses. That is, Nelson has not shown, or even suggested, that Cook's testimony was influenced by her presence in the courtroom while other witnesses testified. Nor are we persuaded by Nelson's argument that the implication of bias from Cook's testimony that she loved Nelson was significantly greater because she had heard the testimony of other witnesses.
The record supports the superior court's findings that there was no bad faith on the prosecutor's part and that the failure to exclude Cook from the courtroom was based on inadvertence. The record also shows that Nelson did not propose any remedy less drastic than exclusion of Cook's testimony, such as a cautionary instruction to the jury. Given these circumstances, we conclude that the court did not abuse its discretion in permitting Cook to testify in the State's rebuttal case.
See Babcock v. State, 685 P.2d 721, 726-27 (Alaska App. 1984); Schroff v. State, 627 P.2d 653, 655-56 (Alaska App. 1981).
Conclusion
We AFFIRM the judgment of the superior court.
Order
Trial Court Case # 3PA-11-00170CR Before: Chief Judge Mannheimer, Judge Allard, and District Court Judge Hanley, pro tem .
Sitting by assignment made under article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Upon consideration of the petition for rehearing filed by the State of Alaska, IT IS ORDERED that the petition is GRANTED.
Court of Appeals Memorandum Opinion No. 6336 is withdrawn and is superseded by Court of Appeals Memorandum Opinion No. 6417, which will be issued on December 21, 2016.
Entered at the direction of the Court.
Clerk of the Appellate Courts
/s/_________
Marilyn May cc: Court of Appeals Judges
Judge Cutler
Central Staff
Publishers (MO&J No. 6417, 12/21/16) Distribution: Michael Schwaiger
Assistant Public Defender
900 W 5th Ave Ste 200
Anchorage AK 99501 Diane L Wendlandt
Office of Criminal Appeals
310 K St Ste 308
Anchorage AK 99501 Jeremy C Nelson
Goose Creek Correctional Center
PO Box 877790
Wasilla AK 99687
Order
Trial Court Case # 3PA-11-00170CR Before: Chief Judge Mannheimer, Judge Allard, and District Court Judge Hanley, pro tem .
Sitting by assignment made under article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d). --------
Upon consideration of the petition for rehearing filed by the State of Alaska, IT IS ORDERED that the petition is GRANTED.
Court of Appeals Memorandum Opinion No. 6336 is withdrawn and is superseded by Court of Appeals Memorandum Opinion No. 6417, which will be issued on December 21, 2016.
Entered at the direction of the Court.
Clerk of the Appellate Courts
/s/_________
Marilyn May cc: Court of Appeals Judges
Judge Cutler
Central Staff
Publishers (MO&J No. 6417, 12/21/16) Distribution: Michael Schwaiger
Assistant Public Defender
900 W 5th Ave Ste 200
Anchorage AK 99501 Diane L Wendlandt
Office of Criminal Appeals
310 K St Ste 308
Anchorage AK 99501 Jeremy C Nelson
Goose Creek Correctional Center
PO Box 877790
Wasilla AK 99687