Court of Appeals No. A-9759.
June 18, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-05-10402 Cr.
Brian T. Duffy, Assistant Public Advocate, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
Ronnie M. Smith Jr. appeals his convictions for first-degree robbery and second-degree theft. Smith asserts that his trial was unfair because the State failed to give him proper notice that it intended to introduce evidence of another criminal incident that Smith participated in earlier the same day. Smith does not argue that evidence of this other incident was barred by Alaska Evidence Rule 404(b). Rather, he argues only that he did not receive fair warning that the State intended to rely on this evidence.
As we explain in more detail below, the State gave Smith pre-trial notice that it intended to rely on this incident, but the State's pre-trial notice characterized this earlier incident as an "assault". Later, during Smith's trial, the State realized that the victim of the assault had given a statement to the police in which he asserted that, during the assault, one of Smith's companions had demanded (unsuccessfully) that the victim surrender his wallet — thus converting the assault into a robbery. (Under Alaska law, even an attempt to take property from the person of another by force or by the threat of immediate force is a completed robbery.)
Smith concedes that he had proper pre-trial notice of the evidence describing the assault. And, as noted above, Smith does not argue that Evidence Rule 404(b) barred the admission of the State's evidence, even with the victim's added assertion that the encounter was a robbery rather than merely an assault. However, Smith contends that he was prejudiced by the State's mid-trial change in its description of the incident — or, phrased another way, prejudiced by the State's mid-trial disclosure that the victim had given a statement describing the incident as a robbery.
For the reasons explained here, we uphold the trial judge's decision to allow the State to introduce this evidence, and we therefore affirm Smith's convictions.
The State indicted Smith and three companions for robbing a man named Timothy Tall in the Penland Park trailer court in Anchorage on November 3, 2005.
At Smith's trial, the State presented evidence that, two hours before the robbery of Tall, Smith and his three companions were driving around the Penland Park trailer court when they accosted a man named Jos É Castro. According to the State's evidence, one of Smith's companions (the driver of the vehicle, Harry Stotts) struck Castro and then demanded his wallet. Smith and his companions attempted to surround Castro, but Castro was able to run away.
The State gave Smith notice in early March 2006 ( i.e., approximately three months before Smith's trial) of its intention to rely on evidence regarding Smith's encounter with Castro.
One month later, in April, the Anchorage police re-interviewed Castro about this incident. In this interview, Castro stated (apparently for the first time) that the driver of the vehicle ( i.e., Stotts) had demanded his wallet during the encounter. The State's attorney immediately disclosed the police detective's written report of this interview to Smith's attorney.
On June 19th, at the beginning of Smith's trial (following jury selection, and just before the jury was sworn), the superior court held a hearing on the issue of whether the State should be allowed to introduce evidence concerning the Castro incident. During that hearing, Castro took the stand. In his testimony, Castro again asserted that the driver of the car had asked for his wallet as Castro was running away. (Castro told the court that he "didn't say [any]thing about getting robbed" when he was first interviewed by the police because "[he] wasn't robbed"; he was only "threatened to get robbed".)
When Castro finished his testimony at the hearing, Smith's attorney did not claim that Castro's testimony on this point was a surprise. Rather, the defense attorney argued that Castro's testimony about the demand for his wallet should not be believed — because "he never mention[ed] it in November [2005 when he was first interviewed]; he doesn't mention it until April ." The defense attorney argued that the encounter with Castro had little or no relevance to the robbery charge against Smith. Rather, the encounter with Castro "was a fight that was alcohol-fueled, and nothing more than that."
The trial judge, Superior Court Judge Michael L. Wolverton, concluded that Castro's testimony had only limited relevance because "there [was] no indication, from what Mr. Castro has just told us, that the other occupants of the car [ i.e., Smith and the two others] were around when [Stotts] asked for [Castro's] wallet. And there's no indication . . . that the intention of this group was to initiate contact [with Castro] in order to take his wallet, or that [Stotts's intention to rob Castro] could be attributed to Mr. Smith."
For these reasons, Judge Wolverton ruled that the State could introduce evidence of the encounter between Smith and his three companions and Castro, as well as evidence that, during this encounter, Smith and his companions got out of their car and attempted to surround Castro. But the judge precluded the State from presenting evidence that Stotts had asked for Castro's wallet, and the judge further precluded the State from presenting evidence of Smith's statement to the police that he had shoved Castro during this encounter.
Nevertheless, Judge Wolverton warned Smith's attorney that he would be willing to revisit this issue if Smith's defense at trial turned out to be that his companions were the ones responsible for the robbery of Timothy Tall, and that Smith was just a teenager who ended up in the wrong place at the wrong time.
Following this hearing, the jury was sworn and both parties delivered their opening statements. In the defense attorney's opening statement, she adopted the litigation strategy that Judge Wolverton had just adverted to: she conceded that Smith was present at the robbery of Timothy Tall, but she asserted that Smith did not participate in that robbery and therefore bore no responsibility for it.
The issue of the permitted scope of Castro's testimony came up again the next day, just before the prosecutor called Castro to the stand (to testify in front of the jury). The prosecutor noted that, on one crucial matter, Castro's testimony the previous day (during voir dire) was inconsistent with the statement that Castro gave to the Anchorage police in April.
In his voir dire testimony, Castro stated that Stotts's demand for his wallet occurred as Castro was running away; but according to the prosecutor, in Castro's April statement to the police, Castro said that the demand for his wallet had been made while all four young men (including Smith) were attempting to surround him. The prosecutor suggested that Castro's statement to the police should be admissible as a prior inconsistent statement if Castro took the stand and repeated the account that he had given during voir dire the day before.
Again, Smith's attorney did not respond with a claim of surprise or lack of pre-trial disclosure. Rather, she argued that the State should not be allowed to impeach Castro with the statement to the police because Castro's April interview with the police had not been recorded, and thus there was no way of knowing if the description in the police report "[was] an accurate reflection of what Mr. Castro actually said".
Hearing the defense attorney's objection, Judge Wolverton called a recess so that the prosecutor could investigate whether there was a recording of Castro's April 2006 police interview. It turned out that there was a recording — so the prosecutor asked the police to make two copies (one for himself and one for the defense attorney). Judge Wolverton decided to reserve his ruling on the prosecutor's request ( i.e., the request to impeach Castro with his prior inconsistent statement) until the recorded copies of the interview were in the parties' hands.
Later in the trial (outside the presence of the jury), the recording of the interview was played for Judge Wolverton and the parties.
Following the playing of the interview, the defense attorney renewed her argument that the State should be precluded from presenting any evidence of the encounter with Castro — that it was propensity evidence, and that it had little relevance to the issues being litigated at Smith's trial. Then, for the first time, the defense attorney argued that the State should be precluded from presenting this evidence because the State was guilty of "late discovery". Here is the defense attorney's complete argument on this point:
Defense Attorney: Second, this is late discovery. So I think it — none of this should come in, as a . . . sanction [against] the State for providing discovery mid-trial. I don't want . . . the record to go unreflected [ sic] on that [point].
In response to the defense attorney's claim of "late discovery", the prosecutor conceded that he had not previously provided the defense attorney with an audio recording of Castro's April interview with the police — because he himself had not previously had a copy. However, the prosecutor asserted that the State had made pre-trial disclosure of the pertinent underlying information — i.e., Castro's statement that the demand for his wallet had been made while the four men were attempting to surround him. In support of this assertion, the prosecutor read aloud from the third paragraph of the police detective's summary of the interview (which, as explained above, was disclosed to the defense before trial): "One of the males asked [Castro] where his wallet was as the others tried to surround him."
After hearing the arguments of the parties, Judge Wolverton again reserved ruling on the admissibility of Castro's statement about the demand for the wallet until after a further voir dire examination of Castro. In this second voir dire examination, the prosecutor confronted Castro with this previous statement to the police detective ( i.e., the statement that the demand for Castro's wallet was made while the four young men were trying to surround him). Castro admitted that this description of events could be correct — and that he might have been mistaken when, the day before, he testified that the demand for the wallet was made after he was already running away.
Following this second voir dire of Castro, the defense attorney renewed her argument that Castro's testimony would be "way [more] prejudicial than probative". But she did not renew her argument about late discovery.
Judge Wolverton still perceived the issue as close, but he now ruled that the prosecutor would be able to introduce the evidence concerning the demand for Castro's wallet — i.e., evidence tending to show that Smith's encounter with Castro became a robbery, not merely an assault.
The next day, Castro took the stand in front of the jury. He testified that Smith and his three companions got out of their car and approached him. The driver of the car (Stotts) punched him and, in an aggressive tone of voice, asked where Castro's wallet was. Castro testified that when Stotts demanded his wallet, Stotts was standing right in front of him (two feet away), and that Stotts's companions — i.e., Smith and the two other young men — were about five or six feet away.
Smith's argument on appeal
As noted previously, Smith does not challenge the superior court's ultimate ruling concerning the scope of Castro's testimony. In other words, Smith does not argue that the superior court should have precluded Castro's testimony under Evidence Rule 404(b). Rather, Smith argues that he was denied the chance to fairly litigate this issue.
In particular, Smith contends that the State actively misled him concerning Castro's anticipated testimony, because the State's March 2006 pre-trial notice did not include any assertion about a demand for Castro's wallet. Smith also argues that the State violated applicable rules of procedure by failing to make timely pre-trial disclosure of the information about the demand for Castro's wallet after that information was elicited during Castro's police interview in April.
As can be seen from our recitation of the underlying facts, Smith failed to preserve either one of these claims of error.
When the superior court held its first voir dire examination of Castro (just before the jury was sworn), the demand for Castro's wallet was openly discussed, and the parties actively litigated the issue of whether the State would be able to elicit this particular information when Castro testified at trial. During this first discussion of this issue, Smith's attorney never asserted that she had been unaware of a demand for Castro's wallet, nor did she express surprise that the prosecutor would try to characterize Smith's encounter with Castro as a robbery. Instead, the defense attorney argued (1) that Castro's testimony about a demand for his wallet was not credible and, alternatively, (2) that even if Stotts did demand Castro's wallet, this demand did not occur in Smith's immediate presence, and there was no other evidence tending to show that Smith ever intended to commit a robbery (or intended to aid Stotts in committing a robbery).
The superior court next addressed this issue the following day, when the prosecutor suggested that if Castro took the stand and testified that the demand for his wallet occurred after he was already running away, Castro might properly be impeached by his statement to the police in April that the demand for his wallet had occurred while the four men were trying to surround him. Again, the defense attorney did not claim surprise, nor did she claim a lack of pre-trial disclosure. Rather, she argued that the State should not be allowed to impeach Castro with his April statement to the police because that interview had not been recorded, and thus there was no way of knowing if Castro had really said that to the police detective.
Only after the prosecutor contacted the Anchorage police and discovered that there was an audio recording of the April interview did the defense attorney — for the first and only time — assert that the prosecutor had committed a discovery violation.
As we explained above, as soon as the defense attorney made her complaint about "late discovery", the prosecutor responded that Castro's prior statement about the demand for his wallet had been disclosed to the defense before trial. The prosecutor then read aloud from the paragraph of the police report that accurately described Castro's statement. The defense attorney never responded to the prosecutor's remarks, and she never renewed her claim of late discovery.
One might reasonably infer that, after the defense attorney heard the prosecutor's answer, she concluded that the prosecutor was correct — i.e., that Castro's statement was disclosed to the defense soon after it was made.
But in any case, the defense attorney never asked Judge Wolverton for a ruling on her claim of late discovery — even after the judge re-evaluated his earlier ruling and decided to let the State introduce evidence of the demand for Castro's wallet. Thus, even assuming that the defense attorney did not implicitly withdraw her claim of late discovery after hearing the prosecutor's response, the defense attorney's failure to demand a ruling on this claim means that the claim is not preserved for appeal.
See Marino v. State, 934 P.2d 1321, 1327 (Alaska App. 1997) ("Marino chose to proceed without seeking a ruling on the merits of his discovery motion. He therefore can not raise this issue on appeal."); Erickson v. State, 824 P.2d 725, 733 (Alaska App. 1991) ("[I]n order to properly preserve this issue for appeal, it was [the defendant's] duty to insist that the trial court rule on his motion[.]"); Jonas v. State, 773 P.2d 960, 963 (Alaska App. 1989) (by failing to seek a ruling on his motion for a psychiatric evaluation of the complaining witness, the defendant forfeited his right to argue on appeal that the trial court should have granted the motion).
The fact that this claim is not properly preserved for appeal means that Smith must demonstrate plain error if he is to succeed on appeal. But the record does not establish plain error. If anything, it establishes that there was no error at all — for the record contains no rebuttal of the prosecutor's assertion that Castro's prior statement was disclosed in a timely fashion to the defense.
See Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008): "Under Alaska law, an error to which no objection was preserved in the trial court will qualify as `plain error' only if (1) the error was so obvious that it should have been noticed by the trial court sua sponte ( i.e., the error should have been apparent to any competent judge or lawyer); (2) the attorney representing the party who now claims error had no apparent tactical reason for failing to object; and (3) the error was so prejudicial to the fairness of the proceedings that failure to correct it would perpetuate manifest injustice."
The judgement of the superior court is AFFIRMED.