Opinion
Court of Appeals No. A-9418.
December 26, 2007.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-04-948 CR.
Kathleen Murphy, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, 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.
MANNHEIMER, Judge, concurring.
MEMORANDUM OPINION AND JUDGMENT
Bruce W. Tice was convicted of two felonies in a jury trial: manslaughter and assault in the first degree. The charges arose out of a single-car accident that killed a five-year-old child and injured a three-year-old child who were passengers in the car. Tice's case was joined for trial with that of Shelly D. Maddux, who was charged with hindering prosecution in the first degree for telling police at the scene of the accident that she, and not Tice, was driving at the time of the accident. Both Tice and Maddux were convicted as charged. Superior Court Judge Eric Smith sentenced Tice to a composite sentence of 25 years of imprisonment. On appeal, Tice argues that Judge Smith erred in refusing to grant Tice's motion to sever his case from Maddux's case for trial, and that Judge Smith imposed an excessive sentence. We conclude that Judge Smith did not err in denying Tice's motion to sever the cases for trial. But we remand for resentencing because we conclude that Judge Smith erred in finding an aggravating factor for sentencing based on an erroneous conclusion that Tice conceded the aggravating factor.
Factual and procedural background
The charges against Tice and Maddux arose out of a single-car accident on February 28, 2003, that killed five-year-old passenger K.M. and injured three-year-old C.M. Shelly Maddux is the children's mother. The roll-over accident occurred on a road approximately one-quarter of a mile from the Maddux residence (where Tice also lived). Neither child was wearing a seat belt at the time of the accident. The police investigation of the accident took approximately one year, in part because the police could not initially prove whether Tice or Maddux was driving the car at the time of the accident. The State ultimately charged Tice with manslaughter, criminally negligent homicide, assault in the first degree, two counts of reckless endangerment, reckless driving, and driving while under the influence. The State charged Maddux with hindering prosecution in the first degree for knowingly rendering assistance to Tice on the day of the accident with the intent to hinder the apprehension, prosecution, conviction, or punishment of Tice. Tice's charges were joined in the indictment with Maddux's charge of hindering prosecution. The charges were set for a joint trial.
AS 11.41.120(a)(1).
AS 11.41.130.
AS 11.41.200(a)(1).
AS 11.41.250.
Former AS 28.35.040 (renumbered as AS 28.35.400).
AS 28.35.030(a)(1), (2).
AS 11.56.770(a)(1).
Prior to trial, Tice filed a motion to sever his case from Maddux's case. Judge Smith held a hearing prior to trial to hear counsels' arguments regarding the issue of severance. Judge Smith denied the motion to sever.
At trial, several Alaska State Troopers testified that both Tice and Maddux initially asserted that Maddux had been the driver of the car at the time of the accident. The troopers, however, had doubts that Maddux was the driver of the car because the steering wheel was damaged and bent, yet Maddux did not sustain any bodily injuries (whereas Tice did sustain bodily injuries). Their doubts were confirmed when the prosecution obtained transcripts from a series of eight conversations between Tice and Maddux (legally recorded because Tice was in jail). During the conversations, Maddux expressed concern about continuing to lie for Tice, and anger at Tice for not slowing down the car and for killing her daughter. Tice did not testify in his own defense.
Maddux testified at trial and raised the defense of duress. She asserted that she had been in an abusive relationship with Tice, and that was why she had lied to the police about who was driving the car.
The jury found Tice guilty of manslaughter, assault in the first degree, two counts of reckless endangerment, reckless driving, and driving while under the influence. Additionally, the jury found Maddux guilty of hindering prosecution in the first degree. Judge Smith sentenced Tice to a composite sentence of 25 years of imprisonment.
Why we conclude that Judge Smith did not err in denying Tice's motion for severance
Tice initially brought a pro se motion to sever his trial from Maddux's trial under Alaska Rule of Criminal Procedure 8(b). In response to the State's opposition memorandum, Tice's attorney argued that severance was required under Criminal Rule 14 because joinder "would clearly and [unfairly] prejudice" Tice.
It seems clear that Tice's and Maddux's cases were properly joined under Criminal Rule 8(b). Both cases arose out of the single-car accident. Tice was charged with manslaughter, assault in the first degree, and other charges arising out of the accident. Maddux was charged with hindering prosecution for falsely claiming that she was the driver. Tice's arguments both in the trial court and on appeal indicate that Tice's real claim was not that the cases were improperly joined, but that Judge Smith erred in refusing to grant severance under Criminal Rule 14.
Criminal Rule 14 "comes into play only if joinder was initially proper under Rule 8 but a joint trial would prejudice one or more defendants." In other words, "Rule 14 presupposes proper joinder, but seeks severance based upon prejudice." "A trial court's decision to deny severance can be overturned only for abuse of discretion, and only where there has been a showing of prejudice."
United States v. Lloyd, 10 F.3d 1197, 1215 (6th Cir. 1993).
Mathis v. State, 778 P.2d 1161, 1167 (Alaska App. 1989).
Abdulbaqui v. State, 728 P.2d 1211, 1219 (Alaska App. 1986) (internal citations omitted).
In the hearing before Judge Smith on the motion to sever, Tice's attorney stated that her concern was that Maddux would present a defense that Tice had coerced her into taking the blame for driving the car, and that Tice would be prejudiced if he could not cross-examine Maddux. Tice's attorney represented that Tice would defend on the ground that the State could not prove (1) that he was the person who drove the car; (2) that he caused the accident; or (3) that he was under the influence of alcohol.
Maddux's attorney opposed severance. Maddux's attorney represented that he would have to admit some evidence in order to get a duress instruction, and therefore Maddux would probably have to testify. Maddux's attorney reasoned that Tice would be able to cross-examine any witness who testified about the duress defense. Therefore, severance was not required. Judge Smith concluded that Tice had not shown sufficient prejudice to justify severing the cases. Tice has not indicated that he attempted to renew the motion to sever during trial.
Under the circumstances, we conclude that Judge Smith did not err in denying Tice's motion for severance. Tice's express concern was that Maddux would raise a defense of duress, and that he would not be able to cross-examine Maddux. But Maddux's counsel indicated that Maddux would, in all probability, testify. And Maddux did testify. Tice never claimed in the hearing on the motion to sever that his defense was inconsistent with Maddux's defense. He merely asserted a general denial that the State would be unable to prove the charges.
Why we must remand the case for resentencing
Tice was convicted under the pre-March 2005 sentencing provisions. His two felony offenses, manslaughter and assault in the first degree, are class A felonies. The maximum term of imprisonment for a class A felony is 20 years. Tice was a third felony offender for purposes of presumptive sentencing. Under the pre-March 2005 sentencing provisions, as a third felony offender, Tice faced a presumptive term of 15 years of imprisonment on each felony offense. In addition, Judge Smith found that Tice had conceded one aggravating factor: that Tice knew or should have known that the victim of the offense was particularly vulnerable because of extreme youth. The presence of the aggravating factor authorized Judge Smith to increase the 15-year presumptive term up to the maximum sentence of 20 years of imprisonment. Judge Smith sentenced Tice to the maximum term of 20 years of imprisonment on each of the felony offenses. But he imposed 15 years on the conviction for assault in the first degree concurrently and 5 years consecutively. Judge Smith sentenced Tice to concurrent terms on the misdemeanor convictions. Therefore, Tice's composite term of imprisonment was 25 years.
Former AS 12.55.125(c)(4).
AS 12.55.155(c)(5).
AS 12.55.155(a)(2) (pre-March 2005 version).
Tice contends that he did not stipulate to the aggravating factor. The record bears out Tice's contention. After the jury found Tice guilty, Judge Smith began to instruct the jury on the aggravating factor. But Tice's attorney requested a bench conference. At the bench conference, Tice's attorney indicated that Tice would waive his right to a jury trial and elect to have the court decide whether the aggravating factor existed. It is clear from the record that, at sentencing, Judge Smith did not remember this conversation and mistakenly believed that Tice had stipulated to the existence of the aggravating factor. Judge Smith therefore relied on the aggravating factor at sentencing to increase the 15-year presumptive term to the 20-year maximum term. But it is clear from the trial transcript that Tice waived only his right to a jury trial on the aggravating factor. He did not concede it.
We therefore conclude that we must remand the case to Judge Smith for resentencing. Judge Smith relied on an aggravating factor that Tice did not concede and the court never found.
Conclusion
We conclude that Judge Smith did not err in denying Tice's motion for severance. We therefore uphold Tice's convictions. However, we conclude that we must remand this case to the superior court for resentencing. On remand, Judge Smith shall reimpose sentence within sixty days of this decision. After Judge Smith reimposes sentence, the parties may file memoranda addressing the sentence within thirty days. We retain jurisdiction.
I write separately to more fully explain my analysis of the severance issue.
As Judge Coats's lead opinion points out, Tice has never seriously challenged the fact that the charges against him were properly joined in the same indictment with the charges against his co-defendant, Maddux. Alaska Criminal Rule 8(b) authorizes the joinder of charges against two or more defendants if the defendants "are alleged to have participated in the same act or transaction . . . constituting [the] offense or offenses", or if the defendants "are parties to an express or tacit agreement to aid each other to commit an act or transaction constituting [an] offense". This language describes Tice's and Maddux's roles in their joint endeavor to cover up Tice's commission of manslaughter and assault by having Maddux falsely take the blame.
The fact that Tice was charged separately with several crimes (crimes that Maddux was not charged with) does not mean that joinder was improper — for, as Rule 8(b) states, the defendants who are properly joined under the rule stated in the preceding paragraph "may be charged in one or more counts together or separately[,] and all of the defendants need not be charged in each count". Moreover, in order for the State to explain Maddux's crime of hindering prosecution, it was (as a practical matter) necessary for the State to prove that Tice, and not Maddux, committed the driving offe nses.
See United States v. Corbin, 734 F.2d 643 (11th Cir. 1984), where the court upheld the joinder of eight defendants, some of whom were charged with drug offenses and others of whom were charged with perjury for giving false testimony regarding those offenses. Id. at 649-650. The court concluded that joinder was proper because the government's proof of the perjury necessarily required proof that the perjurors knew of the substantive drug offenses. Id. at 650. In this context, the "substantial identity of facts and participants" justified the joinder. Id.
Thus, the real issue is whether Tice presented a sufficient reason for the superior court to grant severance of the charges against him under Criminal Rule 14.
Tice made two arguments in favor of severance.
First, Tice suggested that he would face a Bruton problem because the State might try to prove its case against him by introducing Maddux's out-of-court statements ( i.e., her statements against interest, indicating that she had lied when she claimed responsibility for the motor vehicle accident), and Tice would be unable to cross-examine Maddux concerning these statements.
See Bruton v. United States, 391 U.S. 123, 126; 88 S.Ct. 1620, 1622; 20 L.Ed.2d 476 (1968).
But Maddux's attorney responded by declaring that Maddux would present a defense of duress ( i.e., she would claim that she lied about who was driving because she was afraid of what Tice would do if she told the truth). The attorney further stated that Maddux would most likely have to take the stand to establish this defense. Thus, there would be no Bruton problem. (Maddux did indeed take the stand at trial.)
Tice's second argument was that Maddux's defense of duress was inconsistent with his own defense. (Although my colleagues have concluded that this particular argument was not adequately preserved, I believe that it was.)
Tice's claim of inconsistent defenses fails on the facts. This was not a case where the only way for Tice to demonstrate his innocence was to show that Maddux was guilty. Nor did Maddux have to show that Tice was guilty in order to establish her own innocence.
True, Maddux's defense to hindering prosecution ( i.e., lying about who was the driver) was predicated on the assertion that Tice was driving the vehicle at the time of the accident. But to establish her defense of duress, Maddux did not have to prove that Tice engaged in dangerous driving, or that he was intoxicated, or that he had the culpable mental states needed to prove manslaughter or first-degree assault.
Moreover, Tice's attorney told the superior court that Tice did not intend to assert that Maddux was the driver. Rather, Tice proposed to defend the charges by arguing that the State's evidence was insufficient to prove Tice's guilt beyond a reasonable doubt.
In Abdulbaqui v. State, 728 P.2d 1211 (Alaska App. 1986), this Court explained that co-defendants' antagonistic defenses do not ordinarily require severance, and that severance should be granted only if the defenses are truly "irreconcilable" — in the sense of being "mutually exclusive to the extent that one must be disbelieved if the other is to be believed". Id. at 1219. Despite the tensions between Tice's and Maddux's defenses, Tice's argument in favor of severance did not meet this test.
For these reasons, I agree that this Court should affirm the superior court's denial of Tice's request for severance.