Opinion
Court of Appeals No. A-12698 Court of Appeals No. A-12721 No. 6859
02-05-2020
RUSSELL JAMES SHEAKLEY, Appellant, v. STATE OF ALASKA, Appellee. CONRAD MARK CLAYE JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Bradly A. Carlson, Attorney at Law, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for Appellant Sheakley. Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for Appellant Claye. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-15-09417 CR Trial Court No. 3AN-15-09416 CR
MEMORANDUM OPINION
Appeals in File Nos. A-12698 & A-12721 from the Superior Court, Third Judicial District, Anchorage, Michael D. Corey, Judge. Appearances: Bradly A. Carlson, Attorney at Law, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for Appellant Sheakley. Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for Appellant Claye. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. Judge HARBISON.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Russell James Sheakley and Conrad Mark Claye Jr. were convicted of second-degree robbery for attacking Kevin Wieskamp and taking beer and groceries from him. Sheakley was also convicted of fourth-degree assault for beating up a different victim, Leonty Fratis, shortly before the attack on Wieskamp.
AS 11.41.510(a)(1).
AS 11.41.230(a)(1).
Sheakley and Claye were tried together, and they jointly raise two claims based on the conduct of that trial.
First, Sheakley and Claye argue that the trial court violated their Fourteenth Amendment right to equal protection when the court allowed the prosecutor to exercise a peremptory challenge of a juror over their Batson objections. For the reasons we explain in this opinion, we reject this claim and affirm the denial of Sheakley and Claye's Batson challenge.
Next, Sheakley and Claye argue that the trial court violated the hearsay rule, and also violated their Sixth Amendment right to confront the witnesses against them, when the trial court admitted certain out-of-court statements made by Fratis, who did not testify at the trial. For the reasons we explain in this opinion, we conclude that Fratis's out-of-court statements were not "testimonial" hearsay, and therefore the admission of these statements did not violate the Confrontation Clause. On the other hand, we agree with Sheakley and Claye that Fratis's statements were inadmissible hearsay. However, we conclude that the admission of these statements did not appreciably affect the jury's verdicts, and we therefore conclude that the admission of these statements was harmless error.
In addition to their two shared claims, Sheakley and Claye each raise individual claims of error. Sheakley argues that the evidence presented at his trial was legally insufficient to support his conviction for fourth-degree assault on Fratis, while Claye argues that his sentence is excessive. For the reasons explained in this opinion, we find no merit to either of these contentions.
Factual and procedural background
On October 18, 2015, Sheakley and Claye were reportedly involved in two separate altercations. The first altercation was reported via a 911 call. The caller, Michael Teichler, reported that several men were beating up someone. Teichler described two of the men involved in the attack: one man was wearing a black jacket, brown pants, and an "Indiana Jones"-style cowboy hat, while the second man was wearing a blue sweatshirt and carried a cane. According to Teichler, both of these men were Alaska Native. The victim of this attack was later identified as Leonty Fratis.
After Teichler made the 911 call, Teichler left the area — only to see the same two men involved in a second altercation a few blocks away. According to Teichler, the two men he had previously seen were now beating up an older man who had been walking down the street carrying beer and groceries.
The victim of this second altercation was Kevin Wieskamp. According to Wieskamp, he was approached by two men who told him to drop his beer and groceries. When Wieskamp complied, one of the men, later identified as Claye, threw him to the ground and kicked him in the head and ribs. Then, as the two men left, they grabbed the groceries and beer. Wieskamp called 911.
Officer Steven Czajkowski was dispatched to the scene of the first altercation. When Czajkowski arrived, he encountered Leonty Fratis, who had a torn shirt and blood on his face. Fratis stated that someone in a cowboy hat had assaulted him, and he told Czajkowski which direction the suspect had gone, although he also told Czajkowski that he did not want to press charges. When Czajkowski went in the direction indicated by Fratis, he encountered another person in the roadway who looked like he also had been assaulted. This person was identified as Kevin Wieskamp. Wieskamp told Czajkowski that he had been assaulted, and he also mentioned a cowboy hat. He then pointed Czajkowski in the direction the men had gone.
A short while later, Czajkowski saw two men, who were later determined to be Sheakley and Claye. Czajkowski detained the two men to see whether Wieskamp could identify them as the men who had robbed him. Wieskamp identified both men. He stated that Claye was the man who had beaten him up. According to Wieskamp, Sheakley, who was wearing a cowboy hat, had also threatened him and helped Claye carry away the groceries and beer. Wieskamp later testified that he suffered significant injuries from the attack, including broken ribs.
Officer Czajkowski noticed that Claye had a bloody hand, but both Claye and Sheakley denied that they had been fighting with anyone. At one point, Sheakley led another officer, Officer Curtis Simmons, to a location where he said the beer would be, but the beer was not there.
Sheakley and Claye were charged with second-degree robbery for the attack on Wieskamp. Both men were also charged with fourth-degree assault for the earlier attack on Fratis, but the State dismissed the assault charge against Claye prior to trial.
As we have mentioned, Sheakley and Claye were tried together. Fratis did not testify at the trial. Instead, most of the evidence about the assault on Fratis came from the testimony of Michael Teichler, the man who witnessed the assault and called 911. In his 911 call, Teichler described an altercation between a large man wearing a cowboy hat and a much smaller Native man. Teichler explained to the jury that the much bigger man punched the smaller man, throwing him to the ground a couple of times. Teichler stated that each time the smaller man was knocked down, he got up in an attempt to walk away. Teichler also stated that, once the assault was over, the victim was standing in front of the Carrs grocery store.
The State additionally elicited testimony from Officer Czajkowski about the assault on Fratis. Czajkowski told the jury that he responded to Teichler's 911 call, and that when he arrived he found Fratis in front of the Carrs grocery store. Czajkowski observed that Fratis was bloody and that his clothing was torn. Czajkowski explained that when he contacted Sheakley and Claye a short time later, Sheakley was wearing a cowboy hat.
Czajkowski also testified about the statements made to him by Fratis at the scene. Czajkowski told the jury that when he contacted Fratis in front of the grocery store, Fratis told him that somebody in a cowboy hat had "kicked his ass." Czajkowski also said that Fratis pointed him in the direction the man had gone. Both defense attorneys objected to this testimony on Confrontation Clause and hearsay grounds, but the trial court overruled their objections. The trial court found that Fratis's statements fell within the "present sense impression" exception to the hearsay rule, and it also found that admission of the statements into evidence did not violate the Confrontation Clause because the statements were "non-testimonial."
The jury ultimately found both of the defendants guilty of robbing Wieskamp, and the jury found Sheakley guilty of assaulting Fratis. This appeal followed.
Why we conclude that the prosecutor's peremptory challenge of a juror over the defendants' Batson objection did not violate their Fourteenth Amendment right to equal protection of the law
The first claim of error raised by both Sheakley and Claye involves the jury selection process. During voir dire, the prosecutor exercised peremptory challenges of seven prospective jurors, including two who were Alaska Native. When the prosecutor challenged the second Alaska Native juror, the defense attorneys raised a Batson objection, asserting that the prosecutor's decision to remove that juror was improperly motivated by the fact that the juror was Alaska Native. The prosecutor disagreed and advanced a race-neutral explanation for her peremptory challenge. The trial court found that the prosecutor had presented a legitimate, race-neutral reason to challenge the juror, and the court therefore overruled the Batson objection.
On appeal, Sheakley and Claye renew their claim that the trial court violated their Fourteenth Amendment right to equal protection when it allowed the prosecutor to challenge the second juror. Specifically, they argue that the trial judge never expressly ruled on the veracity of the prosecutor's explanation for challenging the juror.
In Batson v. Kentucky, the United States Supreme Court held that the Equal Protection Clause of the United States Constitution prohibits attorneys from using peremptory challenges to exclude jurors based on race. In Batson, the Supreme Court set out a three-part analysis for evaluating an attorney's use of a peremptory challenge to strike a member of a racial group from a jury panel. Only one part of this analysis is at issue in the present appeal: whether the prosecutor exercised the peremptory challenge with the aim of purposeful racial discrimination.
Batson v. Kentucky, 476 U.S. 79, 89 (1986).
Id. at 94-98.
See id. at 98.
When conducting a Batson analysis, "the ultimate question for the trial judge is not whether the party's reasons for the challenge are objectively reasonable; rather, the question is whether the articulated [race-neutral] reasons are the attorney's true reasons for the challenge or whether they are 'an invention to mask the attorney's discriminatory intent.'" Accordingly, under Batson, a trial judge must determine not only whether the attorney's proffered explanation for the peremptory challenge is race-neutral, but also whether the attorney is being honest when the attorney offers this explanation.
Brown v. State, 2004 WL 2452806, at *1 (Alaska App. Nov. 3, 2004) (unpublished) (quoting Gottschalk v. State, 36 P.3d 49, 55 (Alaska App. 2001)).
See Gottschalk, 36 P.3d at 55.
In this case, the prosecutor explained that her peremptory challenge was based on the juror's stated reluctance to report certain crimes to the police. Based on this, the trial court concluded that the prosecutor had offered a legitimate race-neutral explanation for the peremptory challenge. Although the trial court did not make a specific finding regarding the prosecutor's credibility, the court's comments imply a finding that the prosecutor's explanation was honest.
See Lampley, 159 P.3d at 520.
A majority of the federal courts of appeals have affirmed Batson rulings on appeal in cases where a trial court failed to make an express credibility finding, but the finding was nevertheless implicit in the court's ruling. And this Court similarly has upheld Batson rulings against the claim that the trial judge failed to explicitly find that the prosecutor's explanation was genuine and not pretextual.
See United States v. Thompson, 735 F.3d 291, 301 (5th Cir. 2013); United States v. Moore, 651 F.3d 30, 41 (D.C. Cir. 2011), aff'd in part on other grounds sub nom, Smith v. United States, 568 U.S. 106 (2013); Smulls v. Roper, 535 F.3d 853, 860-61(8th Cir. 2008); Messiah v. Duncan, 435 F.3d 186, 198 (2d Cir. 2006); Hightower v. Terry, 459 F.3d 1067, 1072 n.9 (11th Cir. 2006); United States v. Castorena-Jaime, 285 F.3d 916, 929 (10th Cir. 2002); Evans v. Smith, 220 F.3d 306, 314 (4th Cir. 2000); United States v. Perez, 35 F.3d 632, 636 (1st Cir. 1994). But see United States v. McAllister, 693 F.3d 572, 581 (6th Cir. 2012) (concluding that "the district court 'improperly truncated' the Batson analysis and failed to explicitly delineate each step"); Riley v. Taylor, 277 F.3d 261, 286-87 (3d Cir. 2001) (concluding that the lower court was not entitled to deference because it had made no findings).
See Wolverton v. State, 2018 WL 3933516, at *2 (Alaska App. Aug. 15, 2018) (unpublished); Saleem v. State, 2013 WL 3895703, at *2-3 (Alaska App. July 24, 2013) (unpublished); Lampley v. Anchorage, 159 P.3d 515, 520 (Alaska App. 2007).
Express credibility findings significantly aid effective appellate review when a trial court finds that the objecting party failed to establish that the peremptory challenge was based on purposeful discrimination. But based on the record in this case, we conclude that the trial judge was not clearly erroneous in finding that the prosecutor's explanation was an honest one, and that the prosecutor did not engage in purposeful discrimination. We therefore uphold the trial court's denial of the defendants' Batson challenge.
See Wolverton, 2018 WL 3933516, at *2 (reminding trial courts of the need for a clear record on Batson challenges); Rock v. State, 2001 WL 219878, at *4-5 (Alaska App. Mar. 7, 2001) (unpublished) (finding that the record consisted of "indiscernible" whisperings and was inadequate for appellate review of the trial court's credibility findings).
Why we conclude that the admission of Fratis's statements did not violate the Confrontation Clause
Sheakley and Claye's second claim on appeal is that the trial court violated their confrontation rights when it permitted the State to introduce Fratis's hearsay statements that a man in a cowboy hat had beaten him up.
In Crawford v. Washington, the Supreme Court held that the Confrontation Clause of the Sixth Amendment generally bars the admission of "testimonial" hearsay statements made by a person who does not testify at trial. Sheakley and Claye argue that Fratis's out-of-court statements were testimonial hearsay, and that the admission of these statements therefore violated the Confrontation Clause.
Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
But in Davis v. Washington, the Supreme Court held that hearsay statements are not "testimonial" if they are made in the course of police questioning that is aimed at enabling the police to meet an ongoing emergency, in contrast to questioning whose purpose is to establish or clarify events relevant to a later criminal prosecution.
Davis v. Washington, 547 U.S. 813, 822 (2006).
Here, Sheakley and Claye argue that Officer Czajkowski's primary purpose in questioning Fratis was to elicit evidence of past events in order to bolster a later criminal prosecution, and that accordingly Fratis's statements must be considered testimonial. The State disagrees, arguing that the primary purpose of Czajkowski's brief contact with Fratis was to determine whether there was an ongoing need for police assistance and to locate suspects who were still at large.
The Supreme Court has explained that the initial inquiries made by police officers who are responding to an emergency often result in non-testimonial answers because these inquiries are intended to help the police assess the situation, and to determine whether there may be ongoing threats to their own safety or to the safety of the victim or others. As a result, statements made in response to these initial inquiries usually constitute non-testimonial statements.
Id. at 828-32.
Id. at 828.
In Michigan v. Bryant, the Supreme Court elaborated on the types of situations in which police questioning would have the primary purpose of enabling the police to react to an ongoing emergency. The Supreme Court acknowledged that both victims and police officers are likely to have mixed motives when responding to an emergency, because they are likely to want both to end the emergency and also to eventually prosecute the perpetrator. As a result, in order to determine the "primary purpose" of the questioning, courts must objectively evaluate the circumstances of the encounter between the individual and the police. The relevant inquiry is not to identify the officer's subjective purpose in conducting the police questioning, but rather to identify the purpose that reasonable participants in the conversation would have, as determined by the parties' statements and actions.
Michigan v. Bryant, 562 U.S. 344, 361-70 (2011).
Id. at 368.
Id. at 377-78 (quoting Davis, 547 U.S. at 822).
Id. at 367-69.
In the present case, Czajkowski's questions to Fratis, and Fratis's responses, objectively reflect the existence of an ongoing emergency of the type described in Davis and Bryant. When Czajkowski encountered Fratis, he was responding to a report that someone had just been assaulted and that the assailants were still at large. Czajkowski observed that Fratis was bloody and his shirt was torn. Czajkowski's encounter with Fratis lasted only ten to fifteen seconds, and Fratis's statements were needed so that Czajkowski could locate and identify the assailants.
Based on the circumstances of Czajkowski's brief questioning of Fratis, we conclude that the objective purpose of Fratis's statements was to allow Czajkowski to respond to the exigencies of an unfolding situation. We accordingly conclude that Fratis's hearsay statements were not testimonial, and we reject Sheakley and Claye's claim that the admission of these statements violated the Confrontation Clause.
Why we conclude that Fratis's statements were inadmissible hearsay, but that the trial court's error in admitting these statements was harmless
Under Alaska Rule of Evidence 803(1), an out-of-court statement is exempt from the rule against hearsay if the statement: (1) describes or explains an event or condition, and (2) was made while the declarant was perceiving the event or immediately thereafter. Here, the trial court found that Fratis's statements to Czajkowski fell within this exception to the hearsay rule.
This ruling was error. Fratis's statements to Czajkowski were not made contemporaneously with the attack; they were made several minutes after the attack ended. And Fratis made these statements after he had a chance to reflect on the situation and determine that he did not intend to press charges. We therefore reject the trial court's characterization of Fratis's statements as statements of "present sense impression."
But because we have determined that these statements were not "testimonial" hearsay, and that the admission of these statements did not violate the Confrontation Clause, the error in admitting the statements was not constitutional in nature, and thus the error will not require reversal of Sheakley and Claye's convictions unless the error appreciably affected the jury's verdicts.
Adams v. State, 261 P.3d 758, 773 (Alaska 2011) ("An error that is not constitutional in nature will be prejudicial if the defendant proves that there is a reasonable probability that it affected the outcome of the proceeding.").
In this case, the primary evidence of the attack on Fratis was the testimony of Michael Teichler, an eyewitness who called 911. Teichler testified about the assault and about the assailants in great detail. According to Teichler, one assailant was wearing a black jacket, brown pants, and a cowboy hat, and the other was wearing a blue sweatshirt and carried a cane. He told the jury that the man in the cowboy hat punched the victim and threw him to the ground.
The jury also heard the testimony of Czajkowski, who found Fratis in the location of the assault, bloody and wearing a torn shirt. Under these circumstances, the statements made by Fratis — that somebody in a cowboy hat had "kicked his ass" — could not have appreciably affected the jury's decision. As a result, any error in admitting these statements was harmless.
Additionally, because Claye was neither tried for nor convicted of assaulting Fratis, Claye's claim of error regarding Fratis's statements is moot.
Why we conclude that the evidence was sufficient to support Sheakley's conviction for fourth-degree assault
Sheakley individually contends that the evidence was insufficient to support his conviction for fourth-degree assault because the State did not prove that Fratis was the person Sheakley assaulted, or that the fight was an assault as opposed to mutual combat or self-defense.
When a defendant challenges the sufficiency of the evidence to support a criminal conviction, this Court must view the evidence, and all reasonable inferences to be drawn from the evidence, in the light most favorable to upholding the verdict. In the present case, the jury heard detailed testimony from Michael Teichler, an eyewitness who observed the attack on Fratis. Teichler told the jury that a smaller man was punched and thrown to the ground by a bigger man who was wearing a black jacket and an "Indiana Jones"-style cowboy hat. Teichler reported that, after the assault was over, the victim was standing in front of the Carrs grocery store. A short time later, when Officer Czajkowski responded to the 911 call, he found Fratis standing in front of the Carrs grocery store wearing a torn shirt. Minutes later, Czajkowski located Sheakley, who matched Teichler's description of Fratis's assailant. And when Czajkowski confronted Sheakley, he admitted to Czajkowski that he "fought everyone."
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
Viewing this evidence in the light most favorable to upholding the verdict, we conclude that the evidence was sufficient to permit reasonable jurors to find beyond a reasonable doubt both that Fratis was the victim of the charged fourth-degree assault and that Sheakley was the perpetrator of the assault. We accordingly reject this claim of error.
Why we conclude that Claye's sentence was not clearly mistaken
Claye argues on appeal that the sentence he received for second-degree robbery — 4 years to serve — is excessive.
As a second felony offender convicted of a class B non-sexual felony, Claye was subject to a presumptive sentencing range of 2 to 5 years' imprisonment. However, the trial court found (indeed, Claye conceded) two aggravating factors that applied to Claye's case: first, that Claye's prior criminal history included aggravated or repeated instances of assaultive behavior (AS 12.55.155(c)(8)), and second, that Claye's criminal history included five or more convictions for class A misdemeanors (AS 12.55.155(c)(31)). As a result of these two aggravating factors, the trial court was authorized to exceed the presumptive range and impose a sentence of up to 10 years.
AS 11.41.510(a)(1); former AS 12.55.125(d)(3) (July 2016 version).
AS 12.55.125(d); AS 12.55.155(a)(1).
Claye bases his excessive sentence claim primarily on a comparison of his 4-year sentence to the 2.5-year sentence that his co-defendant Sheakley received for the same offense. But Claye and Sheakley did not play equally culpable roles in the robbery. Claye knocked Wieskamp to the ground and then stomped and kicked him, breaking his ribs. Sheakley, on the other hand, simply stood by and watched this assault, and then he helped carry away Wieskamp's groceries and beer. Claye's more severe sentence was justified by his more blameworthy role in the robbery.
Claye also argues that the trial court failed to adequately weigh the fact that the property taken from Wieskamp had a low monetary value. But although the monetary value of the items taken from Wieskamp was not high, the manner in which Claye took those items was extremely violent.
In determining whether a particular sentence is potentially excessive, this Court evaluates the defendant's sentence in light of the defendant's conduct and criminal history, the total range of sentences authorized by the legislature, and the Chaney sentencing criteria. We have independently reviewed the record, and we conclude that the trial court was not clearly mistaken in imposing a 4-year sentence under the facts of this case.
See State v. Wortham, 537 P.2d 1117, 1120-21 (Alaska 1975); State v. Hodari, 996 P.2d 1230, 1232-35 (Alaska 2000).
Conclusion
The judgment of the superior court is AFFIRMED.