Opinion
Court of Appeals No. A-10163.
December 15, 2010.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-05-4542 Cr.
Dan S. Bair, Assistant Public Advocate, Appeals Statewide Defense Section, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
On September 5, 1995, a robbery took place at the Discount Truck Stop, a convenience store in Fairbanks. The clerk on duty, Trisha Warren, was shot and killed. This crime remained unsolved for a decade. During those years, the police investigated seventeen potential suspects. Finally, in late 2005, Marvin L. Wright was indicted for the murder and robbery. Following a three-week trial in the summer of 2007, Wright was found guilty.
In this appeal, Wright challenges his convictions on several grounds.
Two of Wright's arguments involve the unsolved murder of a clerk at another Fairbanks convenience store — the Garden Island — in late May 1994 ( i.e., about fifteen months before the murder and robbery in the present case). Although the Garden Island murder remained unsolved at the time of Wright's trial (July 2007), Wright's attorney wished to argue that one or more of the three suspects in the Garden Island case were probably the same people who committed the murder and robbery at the Discount Truck Stop. Wright was in jail at the time of the Garden Island murder — which meant that, if the same person committed both crimes, that person could not have been Wright.
To try to establish the identity of the person(s) who committed the Garden Island homicide, Wright's attorney repeatedly asked the superior court to order the State to disclose its entire investigative file (comprising several thousand pages) concerning that still-unsolved murder. Although the superior court ordered the State to disclose portions of its Garden Island investigative file, the superior court rejected the defense attorney's repeated requests for complete disclosure of the file.
Wright also made a related request to introduce "other suspect" evidence pertaining to the suspects in the Garden Island homicide — i.e., evidence whose sole or primary relevance to Wright's case was that it tended to suggest that some other specified person(s) committed the crimes with which Wright was charged. However, Wright's request differed from a normal request to introduce "other suspect" evidence — because the evidence that Wright intended to introduce was not evidence that linked a third person to the crimes for which Wright was charged. Rather, Wright proposed to introduce evidence that would potentially link a third person to a different crime — the Garden Island homicide — under the theory that whoever committed that earlier murder was also likely to have committed the Discount Truck Stop murder. The superior court denied Wright's request to introduce this "other suspect" evidence.
See Smithart v. State, 946 P.2d 1264, 1275-79 (Alaska App. 1997) (reversed on other grounds in Smithart v. State, 988 P.2d 583 (Alaska 1999).
In this appeal, Wright argues that the superior court's rulings on these two related issues constituted an abuse of discretion. In addition, Wright argues that the fairness of his trial was compromised when the jury heard evidence concerning the significance of a teardrop tattoo that Wright had on his face. Wright also argues that the superior court should have allowed him to introduce evidence that one of the other potential suspects in the case, Tony Baker, admitted to his drug treatment counselor that he had trouble controlling his violent behavior. Finally, Wright argues that the superior court committed error when it overruled the defense attorney's objection to comments made by the prosecutor during final argument.
For the reasons explained here, we conclude that none of Wright's claims has merit, and we therefore affirm his convictions.
Basic description of the State's case
On the evening of September 4-5, 1995, Marvin Wright and three of his friends — Shannon Boyle, Frederick "Tony" Baker, and Matthew Taplet — were smoking crack cocaine and partying. At some point during the evening, they ran out of baking soda — an ingredient that they needed to "cook" the cocaine. They went out shopping for baking soda, and they eventually came to the Discount Truck Stop.
At Wright's trial, Shannon Boyle and Tony Baker took the stand and described the robbery. Boyle testified that Wright was standing at the counter and then he raised his hand — whereupon she heard a "pop" which she recognized as a gunshot. Baker testified that he remembered seeing Wright "going over the counter". After the shooting, the four people (Wright, Boyle, Baker, and Taplet) got back into the car and drove to Boyle's apartment. Boyle testified that Wright was upset and paced around the apartment; he later left the apartment with Taplet. (Baker testified that Wright and Taplet did not come into the apartment at all, but instead dropped Boyle and Baker off and then drove away.)
Another witness, Christopher Huizenga, who roomed with Wright at the Northstar Center (a halfway house in Fairbanks), stated that Wright told him that he murdered the clerk at the Discount Truck Stop because she would have been able to identify him, and that he later got rid of the gun after the shooting. Another witness, Ivan Bolden, who was imprisoned with Wright at the Fairbanks Correctional Center, testified that Wright discussed the Discount Truck Stop incident with him. Other witnesses, including Russell Foyle and Amanda Williams, also testified about incriminatory statements that Wright made in the months following the shooting.
The superior court's refusal to order the State to disclose its entire investigative file concerning the 1994 Garden Island homicide, and the superior court's denial of Wright's request to introduce "other suspect" evidence relating to the Garden Island homicide
In late May 1994 (that is, about fifteen months before the robbery and murder in the present case), the male clerk at another Fairbanks convenience store, the Garden Island, was murdered. Both the Garden Island clerk and the victim in the present case, Trisha Warren, were shot twice in the head, but the firearms used in the two shootings were of different calibers, and the two stores were in different parts of town.
The police suspected three men — two brothers, David and Jeremy Brennan, and their friend Ernest Beile — of having committed the Garden Island murder. A fingerprint, which the police identified as David Brennan's, was found on the beer cooler at the Garden Island. However, the police could never develop a prosecutable case against any of these three men.
Nor could the police establish a link between the Garden Island murder and the robbery and murder that occurred at the Discount Truck Stop the following year. None of the fingerprints found at the Discount Truck Stop matched the fingerprints of the Brennan brothers or Beile.
The police did receive one tip suggesting that Jeremy Brennan and Ernest Beile had committed both crimes. This tip apparently came from Edwin Beile — the brother of Ernest Beile. According to Edwin, he saw a story on his brother Ernest's computer; this story, which allegedly was written by Jeremy Brennan, described the shooting of a woman during a convenience store robbery. However, a follow-up investigation conducted by the police turned up no further evidence of Jeremy Brennan's or Ernest Beile's involvement in the Discount Truck Stop homicide.
The judge assigned to Wright's trial, Superior Court Judge Mark I. Wood, examined the Garden Island investigative file and ordered the State to reveal certain portions of that file to Wright's attorney: the names of identified suspects, the description of the vehicle tentatively linked to that crime, the criminal records of the Brennan brothers, the pre-sentence report generated in connection with a 1997 criminal prosecution against Jeremy Brennan, and the audio tapes of the police interviews with the Brennan brothers. Judge Wood also ordered the State to disclose all Crime Stoppers reports regarding the Discount Truck Stop murder.
In addition, the State produced six or seven police reports (apparently involving the Brennans, either directly or peripherally) which Wright's defense attorney identified by case number. These police reports were given to Judge Wood for in camera examination, and the judge gave the defense attorney anything that appeared to have relevance to Wright's defense.
However, despite repeated requests by Wright's attorney, Judge Wood would not order the State to disclose its entire investigative file relating to the Garden Island homicide. (According to Judge Wood, this file contained some two thousand pages.)
In his brief to this Court, Wright argues that disclosure of the complete Garden Island investigative file was necessary so that Wright's defense attorney could develop further evidence concerning the identity of the person or persons who committed the Garden Island homicide. Wright argues that the identity of the person(s) who committed the Garden Island homicide was relevant to Wright's trial because this information would have tended to prove that someone besides Wright committed the Discount Truck Stop robbery and murder.
On a related point, Wright contends that Judge Wood should have allowed Wright's attorney to introduce "other suspect" evidence pertaining to the Garden Island homicide. In other words, Wright argues that his attorney should have been allowed to actively litigate the question of which person(s) committed the Garden Island homicide — and that, for this purpose, his attorney should have been allowed to introduce evidence whose sole relevance to Wright's case was that it tended to suggest that someone other than Wright committed the Garden Island homicide.
Wright relies on the fact that both murders occurred at convenience stores, both clerks were killed with gunshots to the head, and both murders occurred during holiday weekends (the Garden Island homicide occurred on Memorial Day, 1994, while the Discount Truck Stop homicide occurred during the early morning hours of Labor Day, 1995). Based on these circumstances, Wright argues that the two homicides are so similar that there is a good chance that the same person committed both crimes.
Wright further notes that one of the Brennan brothers, David, was a prime suspect in the Garden Island homicide (a fingerprint, thought to belong to David Brennan, was found on the beer cooler), and a Crime Stoppers tip (the one we described earlier in this opinion) potentially linked the other Brennan brother, Jeremy, to the Discount Truck Stop murder.
As Judge Wood perceived when he made his rulings on this issue, Wright's argument in favor of disclosure of the Garden Island investigative file, and Wright's related request to introduce "other suspect" evidence, hinged on two propositions. The first proposition was that, if Wright's attorney was given access to the entire Garden Island investigative file, he might be able to prove that one or both of the Brennan brothers, and/or their friend Ernest Beile, committed the Garden Island homicide. The second proposition was that the Garden Island homicide was so similar to the Discount Truck Stop homicide that it was likely that whoever was guilty of the Garden Island murder was also guilty of the Discount Truck Stop murder.
Judge Wood concluded that neither of these propositions was true. The judge found that Wright had failed to offer any good reason to believe that the remaining, undisclosed portions of the Garden Island investigative file would provide proof that the Brennan brothers or Ernest Beile had committed that crime. Moreover, Judge Wood concluded that even if Wright unearthed additional information linking the Brennan brothers or Ernest Beile to the Garden Island murder, the Garden Island murder was not significantly similar to the Discount Truck Stop murder. In other words, there was no good reason to believe that these two crimes must have been committed by the same people.
Judge Wood's conclusions are supported by the record. Under these circumstances, Judge Wood could reasonably conclude that the proposed disclosure of the complete Garden Island investigative file would not lead to any relevant evidence, much less evidence that would cast significant doubt on Wright's guilt. Additionally, Judge Wood could reasonably conclude that even if the person(s) who committed the Garden Island homicide could be identified, this information would have only speculative relevance to the charges against Wright — since there was no significant reason to believe that the person(s) who committed the Garden Island homicide also committed the Discount Truck Stop robbery and murder fifteen months later.
For these reasons, we uphold Judge Wood's decision not to order disclosure of the complete Garden Island investigative file, and we also uphold Judge Wood's ruling that barred Wright's attorney from actively litigating whether the Brennan brothers and/or Ernest Beile committed the Garden Island homicide.
The evidence pertaining to Wright's teardrop tattoo
One of the State's witnesses was Christopher Huizenga. For six months, Huizenga was Wright's roommate at the Northstar Center in Fairbanks. Before arriving at Northstar, Huizenga had heard rumors that Wright was involved in the Discount Truck Stop homicide. And while Huizenga was rooming with Wright, he noticed that Wright had a teardrop tattoo on his face, under his eye. Huizenga understood the tattoo to be a reference to Wright's having killed someone.
One day, Huizenga asked Wright if the teardrop tattoo was related to the Discount Truck Stop murder. Wright answered no — that the tattoo was connected to another murder that Wright had committed in California. Wright then asked Huizenga how he knew about the Discount Truck Stop murder. After Huizenga explained that he had heard rumors that Wright committed that crime, Wright admitted that he committed the robbery at the Discount Truck Stop because he needed money, and that he shot the clerk because she would have been able to identify him.
Before trial, Wright's attorney filed a motion in limine seeking to exclude all references to Wright's teardrop tattoo, since it tended to prove that Wright had committed another homicide. At a pre-trial hearing, Judge Wood prohibited the introduction of all evidence pertaining to the California homicide (or any of Wright's other criminal convictions). However, Judge Wood ruled that Huizenga would be allowed to mention Wright's tattoo insofar as that tattoo provided the context of Huizenga's conversation with Wright:
The Court: [Wright's tattoo] gives context to the conversation. So Huizenga can be examined [about] the context of having a conversation about this tattoo. . . . And [there are] ways of doing it without talking about the California [homicide] unless [the defense attorney elicits] all the details . . . in cross-examination. But the prosecution is precluded from bringing up anything that references the prior alleged California killing.
Just before Huizenga took the stand at Wright's trial, Wright's attorney asked Judge Wood to revisit the pre-trial ruling regarding Wright's tattoo. Although the defense attorney's argument is a little hard to follow, it appears that he asked Judge Wood to bar any reference to the tattoo, on the theory that any discussion of the tattoo would alert the jurors that a teardrop tattoo was a sign that the person wearing the tattoo had committed a murder. The prosecutor responded that Huizenga had been instructed not to mention the California homicide (or any of Wright's other crimes), but the prosecutor argued that Huizenga would have to make some minimal reference to Wright's tattoo in order to explain the context of his conversation with Wright, and to explain the circumstances in which Wright confessed to the robbery and murder. Nevertheless, the prosecutor assured Judge Wood and the defense attorney that Huizenga would not offer any opinion or explanation concerning the significance of the tattoo.
A few minutes later, Huizenga took the stand. After preliminary testimony about Huizenga's incarceration with Wright at the Northstar Center, the prosecutor asked Huizenga to relate his conversation with Wright about the Discount Truck Stop robbery and murder:
Prosecutor: At some point during the time [that] you were housed at Northstar Center with Mr. Wright, did a conversation transpire about . . . a murder at the Discount Truck Stop?
Huizenga: Yes, it did.
Prosecutor: And can you tell the jurors how that conversation came about?
Huizenga: I initiated it. . . . I asked [Wright] about a tattoo that he has . . . right below the eye — a teardrop.
. . .
Prosecutor: What did you ask him about that tattoo?
Huizenga: I asked him . . . what was it for.
. . .
Prosecutor: [D]id you ask Mr. Wright if he had gotten that tattoo for something that happened at . . . the Discount Truck Stop? . . .
Huizenga: Basically, yes.
Prosecutor: Did Mr. Wright tell you "no"?
Huizenga: Yes. [ i.e., Wright said that the tattoo was not for anything that happened at the Discount Truck Stop]
. . .
Prosecutor: What led you to ask Mr. Wright about this?
Huizenga: Two things. One was back in [19]97 or `96, while I was at [the Fairbanks Correctional Center]. I was laying down on my bunk, and somebody — I heard somebody talking about . . .
Defense Attorney: Objection; hearsay.
The Court: Sustained. You can't . . .
Defense Attorney: Can we be heard [outside the presence of the jury], Judge?
At this point, Judge Wood called an anteroom conference. Wright's attorney immediately asked for a mistrial. However, as the discussion progressed, the defense attorney told Judge Wood that he "just [wanted the prosecutor to] move on", so that Huizenga would not make any reference to rumors that he might have heard in jail. The defense attorney also indicated that he wanted Judge Wood to instruct the jurors "at some point" that they were not to speculate as to why Wright had a teardrop tattoo. The anteroom conference ended, and Huizenga resumed his testimony without further discussion of this issue.
The issue of the teardrop tattoo surfaced again later at trial, during the testimony of Amanda Williams. Williams was Wright's girlfriend at the time of the Discount Truck Stop homicide. When the police interviewed her, Williams said that she had spoken with Wright about the Discount Truck Stop robbery and murder, and that Wright had confessed to her that he committed these crimes. However, when Williams took the stand at Wright's trial, she claimed to have little independent memory of her conversation with Wright or what she told the police about that conversation. The prosecutor decided to play the audio recording of Williams's police interview in order to refresh her memory.
The prosecutor played a two-minute portion of Williams's police interview. Toward the end of that portion, Williams described Wright as saying, "The cops up here in Alaska are too dumb to fucking catch me. What do you think that this teardrop under my eye is for?"
A few moments after this portion of Williams's police interview was played, Wright's attorney asked for an anteroom conference. During that anteroom conference, the defense attorney objected to the renewed reference to Wright's teardrop tattoo. Responding to the defense attorney's concerns, Judge Wood asked the prosecutor if there was "any reason why [Williams had] to talk about the [tattoo] at all". The prosecutor responded "no", and he added that he had talked to Williams before (apparently, about this subject).
The prosecutor then offered to stipulate that Wright's teardrop tattoo predated the 1995 robbery and murder at the Discount Truck Stop (thus negating any potential inference that Wright got the tattoo to commemorate that crime). Judge Wood declared that he would "accept [the State's] stipulation that the teardrop was preexisting", and that he would further "instruct the jury that no one should speculate as to the meaning of the teardrop". Wright's attorney responded, "Fine."
The defense attorney then suggested that the reference to the teardrop tattoo be excised from the audio recording of Williams's police interview. But when Judge Wood suggested that this would not be necessary, given the State's stipulation that the tattoo pre-dated the Discount Truck Stop homicide, and given the cautionary instruction that the jurors would receive (not to speculate about the significance of this tattoo), Wright's attorney responded, "Okay."
The anteroom conference then ended and the prosecutor resumed his direct examination of Williams. The prosecutor did not ask Williams any questions about Wright's tattoo, nor did the prosecutor play any audio that referred to the tattoo. (During the remaining portion of Williams's direct examination, the prosecutor played only one 18-second snippet of Williams's police interview — the portion of the interview in which Williams confirmed that Wright confessed his guilt of the Discount Truck Stop homicide.)
The only other time that Wright's teardrop tattoo was mentioned during Williams's testimony occurred the following day, during the defense attorney's cross-examination of Williams. Wright's attorney was questioning Williams about the specifics of her post-crime conversation with Wright, as reflected in the transcript of her police interview, and the defense attorney specifically asked Williams to comment on Wright's tattoo:
Defense Attorney: And then you [describe Wright as saying], "You know the cops up here in Alaska are too dumb to fucking catch me. What do you think that this teardrop under my eye is for?" . . . You knew that Mr. Wright had a teardrop tattoo . . .
Williams: Right.
Defense Attorney: . . . long before 1995 . . .
Williams: Right.
Defense Attorney: . . . correct? Okay.
On appeal, Wright argues that the jury should never have heard any mention of his teardrop tattoo. He argues that this evidence was very prejudicial because the jurors would have surmised that the tattoo was intended to symbolize a criminal act. Wright further argues that the tattoo had no probative value — that there was no need for Christopher Huizenga to mention the tattoo during his testimony, nor was there any need for the prosecutor to bring this matter up again during the direct examination of Amanda Williams.
We disagree. Judge Wood could reasonably conclude that it was necessary for Huizenga to refer to Wright's tattoo in order to describe the context of his conversation with Wright at the Northstar Center. We note that Judge Wood prohibited Huizenga from explaining anything about the purported significance of the tattoo, or from referring to any crimes that Williams might have committed in California.
We further note that later, during Williams's testimony, after the State stipulated that Wright's tattoo pre-dated the Discount Truck Stop homicide, and after Judge Wood announced that he would instruct the jurors not to speculate as to the significance of Wright's tattoo, Wright's attorney announced that he was satisfied with these measures, and that he would not pursue his request to have the reference to the tattoo excised from the audio recording of Williams's police interview.
For these reasons, we conclude that Judge Wood did not abuse his discretion when he allowed these limited references to Wright's tattoo.
The prosecutor's remarks during final argument
Wright's next argument concerns certain remarks that the prosecutor made during the State's rebuttal summation to the jury.
During Wright's summation to the jury, Wright's attorney repeatedly commented on the witnesses that the State had failed to call. In one instance, the defense attorney told the jurors that the prosecution had not called several witnesses because "[the prosecution] didn't want you to know what [these witnesses] really had to say." In another instance, the defense attorney told the jurors that "[they were allowed to] infer, when [the State does not] present a witness, that that witness doesn't have anything that will support the prosecution's case."
(This is probably a misstatement of Alaska law, at least when the witness is not aligned with the prosecution or would not reasonably be expected to favor the prosecution. See Clum v. State, 893 P.2d 1277, 1279-1280 (Alaska App. 1995); Lewis v. State, 862 P.2d 181, 190-91 (Alaska App. 1993); McCurry v. State, 538 P.2d 100, 104 (Alaska 1975). A criminal defendant can always argue that the State's failure to present additional witnesses (or additional evidence of any kind) leaves a reasonable doubt as to the defendant's guilt. It is a different matter, however, for a defendant to assert that the State's failure to present additional witnesses means that the jurors can infer that these witnesses' testimony would have been unfavorable to the State's case.)
Toward the end of the defense attorney's summation, he told the jurors:
Defense Attorney: Thank you, folks. It's been a long [trial], and I really appreciate your time. I'm through [now]. [The State's attorney is] going to have his closing remarks. It's going to be Mr. Gazewood; he's probably going to talk about what I've had to say.
. . .
[M]aybe he can answer, "Why didn't you bring [in] Larson?" "Why didn't you bring [in] Victoria [ i.e., Shannon Boyle's sister]?" "Why didn't you bring [in] Jay Nasty?" "Why didn't you bring [in] Jack Boyle?" [Because if] you're going to . . . make a big deal about Shannon Boyle saying, . . . "I told these people", then ante up. Bring these people in here.
In response (during rebuttal), the prosecutor asked the jurors to consider the fact that there was "a lot of corroboration" for the State's accusations against Wright.
Prosecutor: [The State's case against Wright has] a lot of different elements to it; and you've got to look at those . . . connections . . . and . . . ask yourself, "Why do these all exist?"
And . . . sure, [the defense attorney] w ants to say, "W ell, why weren't these [other] witnesses called? Why weren't they called?" There's all kinds of rules of evidence that preclude[] the State from calling witnesses. There's all kinds of different considerations that the State has to set. [ Sic] Sometimes, if someone could be charged with a crime, [they] might have a Fifth Amendment privilege. That might be one
The prosecutor's last comment drew an objection from Wright's attorney: "Judge, my objection is that he's citing the law (indiscernible)." Judge Wood responded, "Overruled, as to that argument."
After Judge Wood overruled the defense attorney's objection, the prosecutor continued:
Prosecutor: There's other reasons [why witnesses are not called]. People die. Sometimes you can't call them for that reason. I mean, there's a lot of reasons why you don't call people [to testify]. They could potentially be co-defendants. There's all kinds of reasons why you don't call people.
But then the prosecutor immediately added:
Prosecutor: [But you] can't speculate as to why people are called or not called [as witnesses]. What you have to do, as jurors, is look at the evidence that's presented, and evaluate it . . . on its own. [Because of a witness's] absence, you might say, "Yeah, that's [testimony] I want, and that might be something I'm interested in. But does that affect the rest of the evidence? Does that affect my evaluation of [the evidence presented in court]? Am I not convinced, based on the other stuff?"
Look at the stuff that's presented. If there's a doubt, [then] there's a doubt. But look at it.
On appeal, Wright argues that the prosecutor overstepped the bounds of proper argument when he suggested various reasons that might conceivably explain why several people mentioned in the testimony were not called as witnesses.
It is true that the prosecutor's suggested explanations have no basis in the record. There is nothing in the record to support the prosecutor's suggestions that any of the absent witnesses died before Wright's trial, or that they were unavailable because they exercised their privilege against self-incrimination. If the prosecutor believed that the defense attorney engaged in improper argument when he asked the jurors to draw inferences adverse to the State based on the fact that the State did not call these people as witnesses, it would have been better for the prosecutor to object to the defense attorney's argument.
However, the defense attorney did not object that the prosecutor was asking the jurors to consider or speculate upon matters outside the record. Rather, the defense attorney's sole objection to the prosecutor's comments was that the prosecutor was "citing the law". As we have explained, Judge Wood's response to this objection was "Overruled, as to that argument." That was a proper response to the particular objection raised by the defense attorney — and the defense attorney raised no other.
Moreover, even if the prosecutor's comments were improper, they were also harmless. As we explained above, the prosecutor concluded his comments on this topic by (1) admonishing the jurors not to speculate as to why certain people were not called as witnesses, and (2) asking the jurors to consider whether the absence of these witnesses was important — whether the absence of these witnesses created a reasonable doubt as to Wright's guilt, given the other evidence in the case.
For these reasons, we find no merit in Wright's claim of error.
The defense attorney's request to introduce evidence that Tony Baker (one of the people who accompanied Wright to the Discount Truck Stop on the night of the homicide) admitted to a drug counselor that he had "trouble controlling his violent behavior"
As we mentioned toward the beginning of this opinion, Fred "Tony" Baker was one of the people in the car with Wright when they went to the Discount Truck Stop on the evening of September 4-5, 1995. Baker testified as a witness for the State at Wright's trial.
During the defense case, Wright's attorney called William Watson, Jr., who was a substance abuse counselor at the Fairbanks Correctional Center. Watson testified that, a month before his appearance at Wright's trial, he had evaluated Baker for potential release to a substance abuse program. The defense attorney then asked Watson if, during this evaluation, Baker had admitted committing an assault (an assault completely unrelated to the events of this case) while he was under the influence of alcohol or drugs. The prosecutor objected to this question on the ground that the requested answer would be irrelevant, and Judge Wood sustained the objection.
At this point, the defense attorney requested permission to ask Watson if, during the evaluation, Baker had "admitted to having trouble controlling [his] violent behavior". The prosecutor objected that this would be inadmissible character evidence, and Judge Wood agreed; he sustained the objection.
On appeal, Wright argues that he should have been allowed to elicit this information because it would have tended to prove that Baker was a participant in (and not simply an observer of) the robbery and murder that occurred at the Discount Truck Stop.
The disputed evidence may have been relevant on this issue, but only under the theory of relevance that is expressly prohibited by Alaska Evidence Rule 404(a). Evidence Rule 404(a) declares that, except as authorized by one of the subsections of that rule, evidence of a person's trait of character "is not admissible for the purpose of proving that the person acted in conformity [with that trait of character] on a particular occasion".
This is precisely how Wright's attorney proposed to use the challenged evidence: he wanted to use Baker's statement as evidence of Baker's underlying character for violence, and then to use that character for violence as circumstantial evidence that Baker acted true to character during the events at the Discount Truck Stop. This use of the evidence is prohibited, and Judge Wood correctly sustained the prosecutor's objection.
Wright's claim that he improperly received separate convictions and sentences for both the crime of first-degree murder and the crime of second-degree murder
When the State indicted Wright for the murder of Trisha Warren, the State charged him under two theories: first-degree murder ( i.e., the theory that the killing was intentional) and second-degree murder under a felony murder theory ( i.e., the theory that the killing was unintended, but that it occurred while Wright was committing a robbery). The jury convicted Wright under both theories.
At sentencing, Judge Wood correctly recognized that Wright should receive only one conviction and sentence for murder, so he ordered the merger of the two jury verdicts into one conviction for first-degree murder. The written judgement likewise reflects that "[Count] 001 ( i.e., the second-degree murder count) "merges with [Count] 004" ( i.e., the first-degree murder count), and that Wright received only a single murder sentence of 99 years to serve.
In his brief to this Court, Wright argues that even though the written judgement reflects the right result ( i.e., a single conviction for murder and a single sentence), Judge Wood mistakenly described this result when he addressed the issue of merger at Wright's sentencing.
Wright points out that Judge Wood stated, "[The] felony murder charge merges into the [first-degree] murder [charge] for the purposes of sentencing, so there won't be a separate sentence." Wright further points out that, technically, this description is mistaken: Alaska law requires not only that Wright receive a single sentence for the murder, but also that Wright receive a single conviction for murder. Wright argues that Judge Wood's remark could potentially be interpreted as a directive that Wright should receive two separate convictions (one for first-degree murder, and the other for second-degree murder), but only one merged sentence.
See Tuckfield v. State, 621 P.2d 1350, 1352-53 (A laska 1981); Hurd v. State, 107 P.3d 314, 322 (Alaska App. 2005).
Given the fact that Judge Wood correctly described the legal effect of the merger of the two verdicts in his written judgement, we believe it is very unlikely that Judge Wood originally intended the improper result described in the preceding paragraph. Rather, we believe that Judge Wood always intended the proper result, and simply failed to speak with complete technical precision when he described this result at Wright's sentencing.
Moreover, even if Wright's surmise were correct — that is, even if Judge Wood originally intended to enter separate convictions for first-degree and second-degree murder, and then realized his mistake before he issued the written judgement — it is unclear what Wright would have us do. We can not amend Judge Wood's oral remarks at sentencing. The only thing we could do is order an amendment of the written judgement so that it reflected a single murder conviction. But, as Wright concedes, the written judgement already reflects this.
Accordingly, if this claim is not frivolous, it is moot.
Conclusion
The judgement of the superior court is AFFIRMED.