Opinion
No. 5809
02-29-2012
TREVOR JON STEFANO, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Cynthia Strout, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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.
Court of Appeals No. A-10547
Trial Court No. 3AN-06-8910 Cr
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: Cynthia Strout, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and John J.
Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
Trevor Jon Stefano appeals his conviction for second-degree murder. He makes three arguments on appeal.
Stefano's constitutional challenge to the statute that prohibits certain persons from relying on self-defense
In 2004 and again in 2006, the legislature amended the self-defense statute, AS 11.81.330(a). These amendments added three provisions — subsections (a)(4)(A), (B), and (C) — that prohibit certain persons from relying on self-defense:
See SLA 2004, ch. 124, § 17, as later amended by SLA 2006, ch. 68, § 2.
(a) A person is justified in using ... force upon another [person] when and to the extent the person reasonably believes it is necessary for self-defense against what the person reasonably believes to be the use of unlawful force by the other person, unless
. . .
(4) the [defensive] force used was the result of using a deadly weapon or dangerous instrument the person claiming self-defense possessed while
(A) acting alone or with others to further a felony criminal objective ... ; [or while]
(B) a participant in a felony transaction or purported transaction or in immediate flight from a felony transaction or purported transaction in violation of AS 11.71 [i.e., the controlled substances statutes]; or [while]
(C) acting alone or with others in revenge for, retaliation for, or response to actual or perceived conduct by a rival or perceived rival, or a member or perceived member of a rival group, if the person using deadly force, or the group on whose behalf the person is acting,
has a history or reputation for violence among civilians.
Two of these provisions — subsections (4)(A) and (4)(B) — potentially applied to Stefano's case, because the State alleged that Stefano committed murder while attempting to steal prescription drugs by force.
In the superior court, Stefano attacked the constitutionality of these two provisions. He argued that these provisions violated his right to due process (by depriving him of the fundamental right to defend himself), and he also argued that these provisions violated the guarantee of equal protection of the law (under the theory that the legislature had no reasonable basis for depriving certain law-breakers of the right of self-defense but at the same time allowing other law-breakers to rely on this defense). The superior court rejected these arguments and upheld the constitutionality of the two provisions, ruling that the legislature had a reasonable basis for prohibiting claims of self-defense in particular situations, and that the challenged statute bore a substantial relationship to this legitimate government interest.
In this appeal, Stefano abandons his due process and equal protection arguments. Instead, he raises a new attack on the constitutionality of the two provisions. Stefano now asserts that these provisions infringe the right to keep and bear arms guaranteed by Article I, Section 19 of the Alaska Constitution. But more specifically, Stefano argues that, because the right to bear arms is involved, the superior court employed the wrong legal test when deciding whether the challenged statute was constitutional. Stefano claims that no restriction on the right to bear arms is constitutional unless it is supported by a compelling state interest.
In Wilson v. State, 207 P.3d 565 (Alaska App. 2009), the defendant raised this same argument: the claim that, because the right to bear arms is constitutionally protected in Alaska, any restriction on this right must be analyzed under a "strict scrutiny" test — and that, to survive this scrutiny, the restriction must be supported by a "compelling state interest".
In Wilson, the present author found this argument convincing — but a majority of this Court did not. The majority ruled that restrictions on the right to bear arms need only be reasonable (i.e., substantially related to a legitimate government interest), and that these restrictions do not have to be based on a compelling state interest. Id. at 568 (Judge Coats's lead opinion) and at 569-570 (the concurring opinion of Judge Stewart). The present author dissented; id. at 570-593.
Now, in his briefs to this Court, Stefano relies upon the dissenting opinion in Wilson to argue that any and all restrictions on the right to bear arms must be supported by a compelling state interest — and that, therefore, the superior court used the wrong legal test when it evaluated Stefano's earlier attacks on the constitutionality of the statute.
The short answer to Stefano's argument is that dissenting opinions of this Court are not the law. The same "compelling state interest" argument was made to this Court in Wilson, and this Court rejected it. The vote may have been two to one, but that makes no difference.
Litigants are, of course, entitled to argue that a previous decision of this Court was wrongly decided, and that it should be overruled. But under the doctrine of stare decisis, a litigant who wishes to attack a prior decision of an appellate court must demonstrate (1) that the decision was erroneous from its inception, or (2) that the decision is no longer sound because of changed conditions. In addition, the litigant must show that more good than harm would result from overruling the prior decision.
State v. Carlin, 249 P.3d 752, 757-58 (Alaska 2011).
Ibid.
Stefano makes no attempt to satisfy these requirements of the stare decisis doctrine. He simply claims that the views expressed in the dissenting opinion in Wilson are correct.
Accordingly, we conclude that the superior court acted properly when it resolved Stefano's challenge to the statute by asking whether the statute bore a substantial relationship to a legitimate government interest. And Stefano does not argue that the superior court reached the wrong conclusion under this "substantial relationship" test.
For these reasons, we reject Stefano's constitutional attack on the statute.
Whether the trial judge should have ordered the defense attorney to adopt a different trial strategy because of the State's discovery violation
The prosecutor began presenting the State's evidence at Stefano's trial on Monday, April 21, 2008. Toward the end of that day, the prosecutor ended his direct examination of the victim's wife, April Steik. Stefano's attorney asked for a recess of the trial, so that his cross-examination of Steik would begin the next day. The trial judge — Superior Court Judge Philip R. Volland — granted this request.
The next morning (Tuesday, April 22nd), the prosecutor informed the court that he had just learned that the State had failed to meet its pre-trial discovery obligations, in that many police recordings of witness interviews had not been provided to the defense. In response to this announcement, Stefano's attorney requested a one-day continuance of the trial so that he could review these newly disclosed recordings.
The defense attorney told Judge Volland that it was especially important for him to review the recordings before cross-examining Steik and another State's witness, Judy Jeter. However, the defense attorney told the judge that it was unlikely that the content of the recordings would alter the overall defense strategy — and that, for this reason, the defense attorney would not be requesting additional relief at that time (i.e., relief apart from the one day's continuance).
Judge Volland took this discovery violation seriously; he expressed surprise and disappointment at the extent of the non-disclosure. The judge told the defense attorney that he would delay the trial "[for] as long as [the defense] want[ed]", and he stated that he would be open to later requests for additional forms of relief, if the defense attorney believed that additional relief was needed.
When court reconvened the next morning (Wednesday, April 23rd), Judge Volland asked the defense attorney if he was prepared to go forward, or if he wished an additional continuance. The defense attorney told the judge that he had not yet listened to the newly disclosed recordings, but he also told the judge that he did not think he needed to review the recordings in order to cross-examine the three witnesses that the State intended to present that day.
(The prosecutor had previously announced that, because of the tardy disclosure of the recordings, he had decided to present three witnesses that day — two crime-scene investigators, and one of the victim's neighbors — whose testimony was not likely to raise any issues that would be affected by the content of the recordings).
The defense attorney informed the judge that he and Stefano were still discussing whether to seek a longer continuance of the trial, or some other form of relief, because of the tardy disclosure of the recordings. However, the defense attorney was prepared to go forward with that day's testimony.
In response, Judge Volland assured the defense attorney that "[e]ven if we go forward today ... , you haven't waived any remedies". Specifically, Judge Volland told the defense attorney that he would be allowed to seek further relief if he reviewed the recordings and concluded that they contained "surprises" that "dramatically affect[ed] the trial". Judge Volland also informed the defense attorney that, because of other scheduling problems, Stefano's trial would not resume again until Monday, April 28th — giving the defense attorney four more days (Thursday through Sunday) to listen to the recordings.
Following this discussion, Judge Volland gave the defense attorney time to discuss this matter with Stefano. When the parties returned to court, the defense attorney announced that he had discussed the issue "thoroughly" with his client, and that Stefano wanted the trial to proceed. Accordingly, the trial went forward. The defense attorney made no further request for relief on this matter.
On appeal, Stefano argues that his trial attorney's handling of this issue was obviously incompetent, and that Judge Volland therefore committed plain error by allowing the trial to continue on Wednesday, April 23rd, when the defense attorney openly acknowledged that he had not yet reviewed the newly disclosed recordings.
The record fails to disclose any error, much less plain error. As we have explained, the defense attorney told Judge Volland that he and his client were willing to go forward on Wednesday the 23rd because the content of the newly disclosed recordings was unlikely to affect the defense cross-examination of the three witnesses who would be presented that day. We note that, when the defense attorney chose to go forward on the 23rd, Judge Volland had already repeatedly assured the defense attorney that his decision to go forward on that one day would not constitute a waiver of Stefano's right to seek a later continuance, or to seek other forms of relief, based on the State's discovery violation. And Judge Volland had already promised the defense attorney that, following the conclusion of the proceedings on Wednesday the 23rd, Stefano's trial would not commence again until Monday the 28th — thus giving the defense attorney four more days to review the recordings.
Given this record, Judge Volland was under no obligation to order the defense attorney to adopt a different litigation strategy. Rather, the judge acted properly when he allowed the attorney to choose the defense response to this issue.
Whether the trial judge committed plain error by allowing the prosecutor to introduce evidence describing a song that Stefano had on a compact disc in his vehicle
As part of the investigation into the homicide, the police searched Stefano's truck. One of the items found in the truck was a compact disc. This compact disc had the words "Ridin' Dirty" written on it. At Stefano's trial, a police witness explained that "Ridin' Dirty" was the title of a song describing the life of a drug dealer, and how he evades the police.
(Although the song in question contains the refrain "catch me ridin' dirty", the title of the song is actually "Ridin' ". See the Wikipedia entry for "Chamillionaire".)
At Stefano's trial, the prosecutor argued that Stefano's possession of a compact disc containing this song was relevant because the song related to "drug use and drug dealing". The prosecutor's implicit assertion was that Stefano's possession of this music tended to show that Stefano was a person who engaged in drug use and/or drug dealing, or who at least approved of that lifestyle — and that, therefore, Stefano was more likely to have been involved in a scheme to obtain drugs through an act of violence. Because this was the purpose for which the evidence was offered, it was inadmissible character evidence — barred by Alaska Evidence Rule 404(b)(1).
Nevertheless, Stefano's attorney did not object to the evidence on this ground. The defense attorney's sole objection was that the officer's testimony describing the song constituted "hearsay". Judge Volland overruled that objection, and Stefano does not renew the hearsay argument on appeal. Instead, Stefano argues that Judge Volland should have sua sponte barred the prosecutor from introducing this evidence because it was so clearly inadmissible character evidence.
Although Evidence Rule 404(b)(1) bars this sort of evidence, it appears that this rule is not self-activating. Rather, as is the case with hearsay evidence, most courts hold that a party must contemporaneously object to inadmissible character evidence, or the potential Rule 404(b) objection is waived for purposes of appeal.
See People v. Thornton, 161 P.3d 3, 31 n. 6; 61 Cal.Rptr.3d 461, 494 n. 6 (Cal. 2007) (failure to object to the admission of character evidence constitutes a forfeiture of that claim on appeal); Krause v. State, 691 S.E.2d 211, 215 (Ga. 2010) (same); Smith v. State, 986 So.2d 290, 295 (Miss. 2008) (same); State v. Loza, 641 N.E.2d 1082, 1100 (Ohio 1994) (same). See in particular State v. Garcia, 144 P.3d 684, 696 (Kan. 2006), and Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993), both holding that a defendant's claim of improper character evidence was waived when the defendant objected to the evidence, but not on the ground that it was character evidence.
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Even assuming that Stefano is entitled to pursue this claim under the rubric of plain error, we find no plain error here. The police officer's description of the song was one small incident in a lengthy trial; there was no further reference to the song during the trial (either during the testimony or during final argument). This being so, even if we assume that it was error for Judge Volland to allow the officer to give this testimony (even when the defense attorney raised no Rule 404(b) objection), we are convinced that the introduction of this evidence did not affect the jury's verdict.
Conclusion
The judgement of the superior court is AFFIRMED.