Opinion
Court of Appeals No. A-9377 / 9397.
November 19, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Stephanie E. Joannides and Philip R. Volland, Judges, Trial Court No. 3AN-03-10999 CR.
Allan Beiswenger, Anchorage, for the Appellant. Nancy R. Simel, 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.
MEMORANDUM OPINION AND JUDGMENT
Megan Maxwell was found stabbed to death in a stairwell inside her apartment building. A jury convicted Earl L. Voyles of second-degree murder and tampering with evidence as a result of this homicide. The superior court imposed the maximum 99-year term for second-degree murder and ordered that Voyles would not be eligible for discretionary parole until he had served 80 years of imprisonment.
AS 11.41.110 and AS 11.56.610, respectively.
Voyles appeals the superior court's pre-trial rulings on motions to suppress, trial rulings regarding the admissibility of evidence, courtroom management, discovery, final argument, jury instructions, the sufficiency of the evidence, and the court's process of responding to jury questions. We reject all of Voyles's arguments. Voyles also attacks his sentence. Because we conclude that Voyle's sentence and parole restriction are not clearly mistaken, we affirm the sentence. The State also cross-appeals the superior court's decision not to instruct the jury on accomplice liability as requested by the State. We do not address this issue because it is moot.
Background and proceedings
Maxwell lived in a unit on the third floor of an apartment building complex in Anchorage. On October 3, 2003, Maxwell went out for the evening with friends. Karen Freeman, one of Maxwell's friends, drove Maxwell's roommate home in Maxwell's car. Maxwell and Christina Raber, another of Maxwell's friend's, stayed out later. Maxwell and Raber met two brothers, Ousman and Alkali Ceesay, and after awhile, Alkali Ceesay offered to have his brother drive Maxwell and Raber home.
After a stop for fast food, they drove to Maxwell's apartment, arriving about 3:30 a.m. Alkali Ceesay got out of the car, and after talking with Maxwell, watched her enter the outer door of the apartment building, go through the security doors, and then wave to him. Ceesay saw a tall Native man with short, black hair, and a mustache who was wearing shorts and a short-sleeved shirt descend the stairway inside the security door after Maxwell had entered. The man stopped and spoke with Maxwell. Ceesay returned to his brother's car and they left with Raber.
Maxwell's roommate, Amy Patterson, had buzzed Maxwell through the security door and unlocked the door to their apartment. Patterson then went back to bed. Patterson heard some commotion in the hallway and a male voice, but she thought it was an intoxicated person from an adjacent apartment.
Around 4:15 a.m. that morning another resident of the building found Maxwell lying dead in the bottom floor landing of the east stairwell and called 911. Maxwell had been strangled and stabbed once in the mouth and four times in the chest.
The police found blood on the carpet underneath Maxwell on the east stairs and on the landing of the center stairs between the second and third floors. There was no blood in the hallways connecting the east and center stairwells of the building. Detective Harold Strahle testified based on the amount and location of the blood at the scene that Maxwell was stabbed in the mouth in the center stairwell and in the chest in the east stairwell where her body was found.
The police contacted tenants of the apartment building, including James Voyles (Voyles's brother), who was sleeping, intoxicated and uncooperative. In later interviews, James Voyles told police that his brother Earl had visited his apartment the night Maxwell was killed. James's girlfriend, Melanie Ritter, and a minor were also in the apartment. All four were drinking beer, smoking marijuana, and using crack cocaine. James said that Earl became emotional while talking about his estranged wife, Stacey Richards, and his attempts to contact her. Voyles handled a knife in such a way that James was concerned Voyles was going to cut himself. After James went to bed, he heard Voyles come and go from the apartment. James recalled that Voyles was wearing a tank top, shorts, and tennis shoes. On October 6, a neighbor found a purse near the apartment complex and called the police. The neighbor showed the police the location where she found the purse, and the police found a knife and a sheath in the same general area. James Voyles and the minor identified the knife as the same knife that Voyles handled on the night Maxwell was stabbed. The purse contained Maxwell's identification. No fingerprints were found on the knife, the purse, or the contents of the purse, but DNA from the blood on the knife statistically matched Maxwell's blood.
In the area near the purse, the police also found a size 10½ Fila shoe that had a reddish-brown stain. Detective Mark Thomas screened the shoe for the presence of blood; the test was positive. Detective Kristie Ratcliff checked the shoe into evidence and brought it to the crime lab for further testing.
The police then contacted Voyles and he went to the station for an interview. Voyles denied any knowledge of Maxwell's death. During the interview, Detectives Mark Huelskoetter and Ratcliff noticed what appeared to be blood on Voyles's shoes. Ratcliff obtained a search warrant for the shoes and DNA testing showed that the blood on Voyles's shoes statistically matched Maxwell's blood.
The grand jury indicted Voyles for first-degree murder, three counts of second-degree murder (based on different theories), and tampering with physical evidence. Voyles's loss of evidence claim
AS 11.41.100(a)(1)(A).
AS 11.41.110(a)(1), (a)(2), (a)(3).
AS 11.56.610(a)(1).
Voyles claims that the superior court should have dismissed his case because the police violated due process by failing to preserve exculpatory evidence.
See Putnam v. State, 629 P.2d 35, 43-45 (Alaska 1981).
Voyles's argument has two parts. First, Voyles claims that the police disposed of exculpatory evidence when the officer who screened the Fila shoe found near Maxwell's purse disposed of the preliminary testing material.
Detective Ratcliff took a paper bag containing the shoe to Detective Thomas for a screening test for blood. Thomas tested five or six different stains on the shoe using a separate hemastick for each stain. He obtained positive results on two of the stains. According to Thomas, when a hemastick indicates a "positive" result, it means "there's a very good chance that it is blood, but there are other substances that will give it the same . . . reading." Because a positive reading from the hemastick does not definitively indicate the presence of blood, Thomas explained that further testing needed to be done by the state crime laboratory.
Thomas testified that he threw out the hemasticks when he was done testing the stains on the shoe. He explained that hemasticks are not normally preserved as an item of evidence because they continue to change color over time. Thomas returned the shoe to Ratcliff, telling her that the shoe had tested positive for the presence of blood. Ratcliff then sent the shoe to the state crime laboratory where John Giacalone, a criminalist at the laboratory, tested the shoe stains for blood using a phenolphthalein test. He did not obtain any positive presumptive results for blood. Because there were no positive results, Giacalone did not send the shoe to the lab's DNA section for further testing.
Janet Hanniman, an expert for the defense, later tested the shoe for blood with an o-toluidine screening test and obtained "weak positive" results on several areas of the shoe. She also tested the shoe for DNA, but did not detect any DNA in the stains she checked.
In his motion to dismiss the indictment, Voyles argued that the police intentionally destroyed evidence when Detective Thomas threw away the hemasticks. Voyles maintained that there might have been sufficient material on a hemastick for DNA testing. Superior Court Judge Stephanie E. Joannides heard the evidence the parties presented on this issue. The judge rejected Voyles's argument that the State destroyed exculpatory evidence. Judge Joannides found that there was no evidence to suggest that Voyles could have obtained DNA evidence from the hemasticks.
Based on these findings, Judge Joannides ruled that Voyles failed to show that the destruction of the hemasticks was likely to change the outcome of his case. She therefore concluded that no sanction was warranted regarding the disposal of the hemasticks. Judge Joannides's factual findings are supported by the record and, based on those findings, she properly ruled that no sanction was warranted.
The second part of Voyles's argument with respect to evidence preservation is that the State switched shoes during the investigation. To support this claim, Voyles observes that the Fila shoe was described as blue-and-white at one point and black-and-white at another. But Judge Joannides heard the evidence on this issue and examined images taken when the shoe was discovered near Maxwell's apartment, when the shoe was examined at the crime lab, and when the shoe was examined by the defense expert. She found that those images showed the same shoe and that the police had not switched shoes. Because the record supports the court's finding that the police did not switch shoes, Judge Joannides properly rejected this claim. Voyles's attack on the search warrant
Voyles moved to suppress evidence obtained by the police through a search warrant. Relying on State v. Malkin, Voyles argued that Detective Ratcliff made material misstatements and omissions of fact in the search warrant application, and that the State failed to establish that these misstatements were not intentional or reckless. He argued that Ratcliff stated that Alkali Ceesay described the man in the entryway as being "very tall[ and] thin[,] with dark hair," wearing "a white t-shirt with uh, dark or blue shorts." Voyles pointed out that when Ceesay was interviewed by the police he said he did not have a good recollection of the man he saw in the entryway of Maxwell's apartment building, and that he was unsure of whether the man had facial hair or what his hair looked like. Voyles asserted that Detective Ratcliff omitted Ceesay's uncertainty when he described the man's physical characteristics. He also pointed out that Ceesay described what the man was wearing but not the color of his clothing. (Voyles conceded that James Voyles had described the color of clothing, and that Detective Ratcliff had combined information from various sources when she made this misstatement.) Finally, Voyles argued that Detective Ratcliff failed to tell the magistrate about the Fila shoe found near Maxwell's building that had tested positive for the presence of blood.
722 P.2d 943 (Alaska 1986).
Judge Joannides denied the motion, finding that the misstatements were not intentional or reckless. She also found that the omissions of Ceesay's uncertainty and the discovery of the Fila shoe were not material. Voyles renews his arguments on appeal.
If a defendant identifies a misstatement or an omission in the application for a search warrant, the burden shifts to the State to show that the misstatement or omission was not intentional or reckless, or that the misstatement or omission was not material to the issuance of the warrant. Judge Joannides heard the testimony of the police officers and the other witnesses and was able to evaluate their credibility. She found that the flaws identified by Voyles were neither reckless nor intentional misstatements or omissions and, moreover, were not material to the issuance of the warrant.
Lewis v. State, 862 P.2d 181, 186 (Alaska App. 1993) (citing Malkin, 722 P.2d at 946).
Voyles has not convinced us that Judge Joannides's findings are clearly erroneous. Based on those findings, Judge Joannides properly rejected Voyles's Malkin claim.
Voyles's prejudice claim based on spectators wearing buttons that displayed images of Maxwell
After the jury was selected, but before opening statements, Voyles complained to Judge Volland that spectators in the courtroom were wearing buttons, approximately 3½ by 4 inches, that displayed an image of Maxwell. Voyles's attorney argued that the buttons were a communication to the jury and that the jury might feel "pressured" by such communication. The prosecutor thought that restrictions on the buttons were not necessary and submitted that spectators wearing the buttons would not be "unduly inflammatory." And the prosecutor pointed out that the issue in the case was the identity of the perpetrator, not Maxwell's death.
Superior Court Judge Phillip R. Volland did not bar spectators from wearing the buttons or grant a mistrial because he did not find the buttons to be "unduly disruptive." Instead, he gave the jurors a cautionary instruction and ordered that, when any witness was called to the stand to testify, that witness could not wear one of the buttons. The button issue was not raised again during the trial.
Voyles argues that Judge Volland should have barred all of the buttons from the courtroom because they were "inherently prejudicial."
The United States Supreme Court addressed similar facts in Carey v. Musladin. In that case, members of the victim's family wore buttons displaying an image of the victim and sat in the front row of the courtoom's public area during Musladin's murder trial. Musladin objected, arguing that the buttons were prejudicial. The trial court denied the motion. After exhausting the state appellate process, Musladin sought a writ of habeas corpus in federal court, arguing that the buttons were inherently prejudicial and that the state appellate court erred when it held that the buttons did not deprive him of a fair trial. The federal district court denied relief but granted a certificate of appealability on the button issue.
549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006).
Id. at 651.
Id. at 651-52.
Id. at 652.
Id.
Id.
The Ninth Circuit Court of Appeals reversed the district court and remanded for issuance of the writ, finding that the state court's decision "was contrary to . . . clearly established Federal law" as determined by Estelle v. Williams and Holbrook v. Flynn. In Williams, the defendant was required to wear prison clothes during his trial, and in Flynn, the State seated four uniformed police officers immediately behind the defendant during trial.
Id. at 652 (quoting 28 U.S.C. § 2254(d)(1) (2000)).
425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976).
475 U.S. 560, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986).
Musladin, 127 S. Ct. at 653.
In Musladin, the Supreme Court concluded that it was an open question whether it was inherently prejudicial to a fair trial for spectators to wear buttons. The Court ruled that none of its prior holdings required the state courts to apply Williams and Flynn to private-spectator conduct and, therefore, the state court's decision was not contrary to, or an unreasonable application of, clearly established federal law. The Court vacated the judgment of the Ninth Circuit.
Id.
Id. at 654.
Id.
We addressed potentially prejudicial spectator conduct in Phillips v. State. In that case, several uniformed police officers sat in the courtroom as spectators while Phillips was on trial for murdering a state trooper. We recognized the potential prejudice arising from a large contingent of uniformed officers in the courtroom, but held that the superior court's remedial measures minimized the risk of prejudice.
70 P.3d 1128 (Alaska App. 2003).
Id. at 1137.
Id. at 1138.
Other jurisdictions have held that case-relevant button-wearing may prejudice a defendant's right to a fair trial. In State v. Franklin, the court ruled that spectators wearing "Mothers Against Drunk Driving" buttons during a motor vehicle homicide trial arising from intoxicated driving were prejudicial to the defendant. And in Norris v. Risley, the court held that spectators wearing buttons that stated "Women Against Rape" at a sexual assault trial prejudiced the defendant's right to a fair trial.
327 S.E.2d 449 (W.Va. 1985).
Id. at 454-45.
918 F.2d 828 (9th Cir. 1990).
Id. at 830-34.
Here, we have only a limited physical description of the button in the record. Apparently, the button displayed only an image of the victim, with no additional message. The record is silent on the number of spectators wearing the buttons or the number of days the spectators were present in the courtroom. When Judge Volland addressed the issue, he observed the buttons and found that they were not "unduly disruptive." The judge gave the jury a cautionary instruction and ensured that no witness taking the stand would display the button. After Judge Volland took those steps, Voyles never raised the issue again. On this record, Voyles has not convinced us that Judge Volland abused his discretion.
The testimony from Voyles's ex-wife
Before trial, the State filed a notice that it intended to offer evidence that Voyles assaulted his ex-wife, Stacey Richards, on several occasions. The State argued that this evidence was relevant to Voyles's motive and admissible under Evidence Rule 404(b)(1). The State identified several incidents in which Voyles assaulted and choked his ex-wife. The State contended that this evidence tied in with the evidence that, on the night Maxwell was murdered, Voyles became progressively more upset while in his brother's apartment about his wife leaving him. The State also contended that Maxwell resembled Richards and that, because of this resemblance, it was a fair inference that Voyles had attacked Maxwell.
Before trial, Judge Volland ruled that Voyles's separation from Richards, and his reaction to that separation, might be relevant evidence of motive, especially because the two women resembled one another. However, Judge Volland ruled that evidence of the assaults Voyles committed against Richards was not admissible.
Before jury selection, Voyles asked Judge Volland to clarify his ruling. Judge Volland explained that the State could call Richards to testify that she and Voyles had a bad relationship, that they had separated, and that Voyles was angry with Richards. Judge Volland later explained that he would allow Richards to testify that she was in hiding and that she feared Voyles. Voyles argued that Richard's fear was not relevant to the State's theory of transferred intent — that is, the State's theory that Voyles was angry at his ex-wife and stabbed Maxwell because she looked like her. Judge Volland disagreed, stating that Voyles may have been angry that his wife left him and was hiding from him. The judge ruled that evidence of Voyles's anger was relevant to the transferred intent theory, and that the evidence was not unduly prejudicial.
Judge Volland previewed Richard's testimony before he allowed her to testify. During the preview, Richards testified that she had separated and was hiding from Voyles, she was afraid of him, and when she tried to separate from him, he became angry and threatened to kill her and her daughter. After the preview, Voyles's attorney again objected that the evidence was irrelevant and prejudicial. Judge Volland ruled that all the testimony was admissible, except for Richards's testimony that Voyles had threatened to kill her and her daughter, because of the potential for undue prejudice.
Richards testified before the jury that she was hiding from Voyles and that he was volatile and had reacted with "extreme rage" when she tried to leave him before. Voyles objected to this testimony and moved for a mistrial. Voyles argued that the word "rage" went beyond the scope of what the court had allowed. Judge Volland denied the motion and offered to give the jury a limiting instruction, which Voyles rejected. Judge Volland stated that, after hearing more about Voyles's potential state of mind on the evening of the murder — that Voyles was despondent, self-destructive, drinking, and using cocaine — he found that the jury could find that those emotions, when combined with anger or rage, could cause Voyles to be in "a murderous state of mind." He therefore found that Richards's testimony was relevant and not unduly prejudicial.
On appeal, Voyles argues that Richards's testimony that he reacted to their separation with extreme rage was prohibited by Evidence Rule 404(b)(1) because it tended to show that Voyles acted in "conformity" with extreme rage in killing Maxwell.
Case law allows the admission of evidence that tends to show a defendant's state of mind around the time of an alleged homicide. In Lerchenstein v. State, we upheld the introduction of evidence that Lerchenstein had been "angry and combative . . . immediately prior to the [homicide]." Similarly, in Hoffman v. State, we upheld the admission of evidence that Hoffman violently assaulted a woman a few hours before he attacked and sexually assaulted another. We reasoned that Hoffman's earlier violent assault supported an inference that Hoffman "was in the same emotional state during both encounters."
697 P.2d 312 (Alaska App. 1985).
Id. at 319.
950 P.2d 141 (Alaska App. 1997).
Id. at 147.
Id.
In Voyles's case, other evidence established that Voyles was very distraught about his ex-wife when he was in his brother's apartment the night Maxwell was killed. The testimony from Richards provided the jury with additional information to evaluate Voyles's state of mind on the night of the homicide. We conclude that Judge Volland did not abuse his discretion when he ruled that the challenged evidence was relevant and that its probative value outweighed any unfair prejudice. Because the evidence was admissible, Judge Volland did not abuse his discretion when he denied Voyles's motion for a mistrial. Voyles's objections to opinion testimony of a police detective
See Walker v. State, 652 P.2d 88, 92 (Alaska 1982).
Before Detective Harold Strahle was called as a witness, Voyles objected to Strahle testifying as an expert because the State had not provided formal notice under Alaska Rule of Criminal Procedure 16(b)(1)(B) that Strahle would be an expert witness. The prosecutor argued that Detective Strahle was not being called as an expert but as the crime-scene team leader. She indicated that she planned to ask Strahle to explain, based on his training, his inferences about how the homicide occurred. The prosecutor told the judge that Strahle had prepared a report describing his conclusions about this evidence and that the report had been delivered to the defense in April 2004.
Voyles's trial attorney conceded that the State provided the report to the defense in April 2004 but explained that he was not personally aware of the report because Voyles had a different attorney at the time. Voyles's attorney told the judge he did not see the report until February 2005 — the month before trial. Voyles's attorney said that he forwarded the report to a criminalist, but because the State did not give formal notice regarding an expert witness, he decided not to call a defense expert to rebut the testimony. Voyles's attorney said he met with almost every other expert witness the prosecution identified and that if he had received notice that Strahle was going to testify as an expert he would have met with him as well.
Judge Volland thought it was questionable whether the formal notice of intent to call an expert witness required in Criminal Rule 16(b)(1)(B) applied to investigating police officers testifying about their conclusions from their personal observations. Judge Volland found that the State disclosed the substance of Strahle's testimony in the report. Judge Volland also found that, because Voyles's attorney received the report outlining the detective's testimony, it was a tactical decision by Voyles's attorney whether to call an expert. He ruled that Strahle could give his opinion on the inferences to be drawn from his observations of the blood. Judge Volland later clarified that Strahle's testimony would have to be based on his own observations and not on reports written by other people.
See Collins v. State, 977 P.2d 741, 745 (Alaska App. 1999).
Voyles requested a continuance in order to call an expert criminalist. He explained that the continuance would be at least two weeks so that the expert could fly to Alaska and examine the crime scene and evidence before testifying. Judge Volland denied the request, stating that he did not find sufficient surprise to defense counsel to warrant a continuance of that length or a mistrial.
Strahle testified that he had investigated crime scenes for twenty years and had attended and taught many classes related to crime-scene investigations, including a class on blood evidence. He was the crime-scene leader during the investigation of Maxwell's homicide and had examined the crime scene, Voyles's shoes, and the knife that was recovered from the lot near the apartment complex. Strahle testified that based on his investigation of the crime scene and the evidence collected in the case, he was able to draw certain conclusions about the crime. He testified about his analysis of the homicide and gave his opinion on the direction from which Maxwell's blood fell onto Voyles's shoes.
Voyles's attorney moved to strike Strahle's testimony, arguing that there was no way to determine whether it was based on his own personal observations or reports he had read. Judge Volland denied the motion, stating that the detective's testimony was within the range of his background and experience. Judge Volland also reminded Voyles's attorney that he had notice of Strahle's testimony, and that the attorney made the decision not to call his own expert.
During cross-examination, Strahle acknowledged that he had read the lab and autopsy reports before testifying and that this information aided his opinions on direct. Voyles's attorney again moved to strike his testimony, arguing that relying on reports written by other people in his testimony would make the detective an expert witness. The jury was excused and the prosecutor questioned the detective about the source of his testimony. The detective answered that he had read the crime lab and autopsy reports, but explained that all of his testimony was based on his own training, experience, and observations. Judge Volland denied the motion to strike and likened the detective's testimony to that of a treating physician testifying about a person's condition based on his training, experience, and personal observations. Judge Volland remarked that had it been requested, he would have qualified Strahle as an expert in blood spatter and crime-scene analysis. He also found that the State had substantially complied with the notice requirements by providing a detailed report to the defense.
A similar issue arose in Getchell v. Lodge, a personal injury civil case arising out of a motor vehicle collision that was investigated by a state trooper. B e fore trial, Getchell objected to the trooper's proposed testimony about causation and fault. She argued that the trooper should not be able to offer expert testimony because Lodge had listed him as a fact witness and not as an expert witness. Getchell argued that because the trooper was a fact witness and did not personally see the accident, his testimony was improper lay opinion evidence under Alaska Rule of Evidence 701.
65 P.3d 50 (Alaska 2003).
Id. at 52.
Id. at 55.
When the trooper testified, he relied on the report he prepared when he arrived at the accident and he provided his opinion on causation and fault. The supreme court described the trooper as a hybrid witness, and approved the trooper's opinion testimony:
Id.
Trooper Leichliter's testimony incorporated both his observations as a percipient witness investigating the scene and his conclusions about causation based on over twenty-two years as a state trooper investigating accidents. Thus, we find that the label "expert" or "fact" witness lacks significance in this situation because Trooper Leichliter provided hybrid testimony. . . . Trooper Leichliter, the investigating officer, was "intimately involved in the underlying facts giving rise to the litigation and . . . would reasonably be expected to form an opinion through that involvement." Thus, despite Lodge's choice to list Trooper Leichliter as a fact witness, it was not error to permit him to base his opinions on his expertise. Moreover, Getchell was fully aware of the content of Trooper Leichliter's proposed testimony. She was able to depose Trooper Leichliter and thus suffered no prejudice from Lodge's decision to list him as a fact witness.
Id. at 56 (quoting Wakeford v. Rodehouse Restaurants of Mo., Inc., 610 N.E.2d 77, 80 (Ill. 1993).
Similar considerations faced Judge Volland in this case. The State identified Strahle as a witness early in the case. Strahle prepared a detailed report describing his findings and conclusions about the homicide, which was provided to the defense. Voyles's trial attorney admitted that he personally reviewed the report the month before trial. Strahle had decades of experience investigating crime scenes and examining blood evidence and any reasonable attorney would conclude that Strahle had formed opinions based on his experience that would be helpful to the jury in understanding the evidence in the case.
Judge Volland could reasonably conclude that, by disclosing Strahle as a witness, and by disclosing his report to the defense nearly a year before trial, the State provided the defense with the all the information Criminal Rule 16(b)(1)(B) requires for an expert witness. Judge Volland could thus understandably view Voyles's claim that he needed a continuance with skepticism. Judge Volland found that the defense attorney had not demonstrated sufficient surprise to warrant a continuance to secure the attendance of an expert witness. We conclude that Judge Volland did not abuse his discretion when he denied Voyles's attempt to bar Strahle's testimony and Voyles's motion for a continuance.
See Collins, 977 P.2d at 745.
Voyles's motion for a judgment of acquittal
After the State rested its case-in-chief, Voyles moved for a judgment of acquittal. Judge Volland denied the motion, stating that although some of the evidence was circumstantial and some of the witnesses' credibility had been challenged, reasonable jurors could differ as to whether there was reasonable doubt that Voyles committed the charged offenses. Voyles argues that Judge Volland erred when he denied this motion.
When we review a trial court's denial of a motion for judgment of acquittal, we view the evidence presented at trial and the reasonable inferences from that evidence in the light most favorable to the State. Viewing the evidence in that light, we determine whether fair-minded jurors exercising reasonable judgment could find the defendant guilty beyond a reasonable doubt.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Roussel v. State, 115 P.3d 581, 586 (Alaska App. 2005).
Dorman, 622 P.2d at 453.
On the night Maxwell was killed, Voyles was distressed, self-destructive, and extremely angry over his wife leaving him. Voyles handled the knife that was used to murder Maxwell. Alkali Ceesay described a man similar in appearance to Voyles as the man in the hallway of the apartment when Maxwell entered, and Maxwell, who resembled Voyles's wife, was killed shortly thereafter. The knife Voyles handled was found in a wooded lot near the apartment complex with Maxwell's blood on it. Maxwell's blood was found on Voyles's shoes. This evidence was sufficient to uphold the jury's verdicts.
Voyles's attack on the prosecutor's final argument
Voyles contends that several of the prosecutor's comments during the rebuttal portion of closing arguments were improper and warrant a new trial. The first comment Voyles challenges is the following:
Prosecutor: What else do we know about the murderer? [The murderer] would have no alibi. No one could back up his story, no one could place him somewhere else, no one could verify . . . his whereabouts at the time of the murder.
Voyles did not object to this portion of the prosecutor's argument at trial. Voyles also challenges the following comment:
Prosecutor: And ladies and gentlemen, there is no evidence of contamination whatsoever in this case. The defense has given you mere speculation.
Voyles objected to this comment, contending it shifted the burden of proof, but Judge Volland overruled the objection. Finally, Voyles challenged the prosecutor's reference to Richards's testimony:
Prosecutor: She was in hiding from the defendant the night of October 4th. She had been in hiding from him for some time. . . . She testified that he acts with extreme rage, or has acted with extreme rage in the past.
Voyles objected, contending that Richards's testimony about Voyles's "extreme rage" was struck from the record. But Judge Volland reminded Voyles that he had not struck this testimony because Voyles told the judge not to instruct the jury to disregard the statement.
After the conclusion of the final arguments, Voyles moved for a mistrial. Judge Volland denied the motion. Judge Volland found that the comment that drew Voyles's first objection (the second comment above) was not objectionable or prejudicial. Regarding the third comment, Judge Volland reminded Voyles that he chose not to have the court strike the comment made by Richards.
Because Voyles failed to object to the first comment he identifies on appeal, he must show plain error. A plain error is an error so obvious that it would be apparent to a competent judge or a competent lawyer even without an objection, and so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice. Voyles has not demonstrated error, much less plain error. The prosecutor's comment only identified what the evidence did not show: There was no testimony accounting for Voyles's whereabouts from the time after Maxwell entered the security door of the apartment until her body was found in the stairwell. This was not an improper argument.
See Garroutte v. State, 508 P.2d 1190, 1191 (Alaska 1973); Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).
Potts, 712 P.2d at 390.
The second comment above was the prosecutor's response to Voyles's argument that the State's evidence was contaminated because of the quality of the evidence collection. In the context of this case, the prosecutor's response was an appropriate retort to the defense's challenge.
Finally, the third comment referencing Richards's testimony about Voyles's rage was permissible because a party is entitled to comment on evidence admitted at trial. We reject Voyles's contention that the prosecutor's final argument was improper.
See, e.g., Gunnerud v. State, 611 P.2d 69, 74 (Alaska 1980); Darling v. State, 520 P.2d 793, 794 (Alaska 1974).
Voyles's claim that he was not present at an important stage of trial
On the day before final arguments, Voyles's attorney informed the court that Voyles "did not feel the necessity" to be present during the upcoming discussion of jury instructions. Voyles waived his presence and the court recessed. When the court went back on the record and discussed jury instructions, Voyles was absent.
During this hearing, Judge Volland explained to Voyles's attorney that his preferred procedure on written questions from the jury was to summon the parties only if it was obvious that the question needed to be discussed in the courtroom. If the questions were simple and could be addressed quickly, Judge Volland preferred to do a conference call rather than have everyone return to the courtroom. Voyles's attorney stated that this procedure was acceptable, but he said he would discuss the procedure with Voyles and get back to the court. Voyles's attorney asked if Voyles would be kept at the courthouse during deliberations and Judge Volland stated he would. Judge Volland told Voyles's attorney that if Voyles wanted to be there for questions, the court would make arrangements to bring him to the courtroom. Voyles's attorney stated he would explain this to Voyles.
The next day, after closing arguments, Judge Volland asked the parties for their preferences on playbacks. Voyles's attorney stated that Voyles had left the decision up to him, and he said he did not wish to be present for playbacks. Judge Volland also asked about the procedure for conference calls for jury questions, and the attorney informed the court that the conference-call procedure was acceptable.
Voyles argues that while he waived his right to be present during requests from the jury for playbacks of testimony, he did not waive his right to be present for jury questions. Voyles argues that he could have assisted his attorney in responding to the jury questions. Voyles argues that the telephonic discussion of jury questions without his presence violated his right to be present at all stages of the proceedings. The State argues that Voyles waived any objection to the jury question procedure outlined by Judge Volland.
A defendant's right to be present is constitutionally based, and is implemented by the provisions of Criminal Rule 38, which generally requires a defendant's presence at all trial proceedings.
See State v. Hannagan, 559 P.2d 1059, 1063 (Alaska 1977).
Obviously, an express in-court waiver of the right to be present establishes a clearer record that a defendant waived his or her right to be present. But reviewing the transcript of the trial court proceedings on this issue leads us to conclude that Voyles waived his right to be present. Voyles's attorney informed the court that he would discuss the proposed procedure for playbacks and jury questions with Voyles and report back to the court. When the court raised these issues, Voyles's attorney told Judge Volland that he had discussed the playback procedure with Voyles. The attorney told Judge Volland that Voyles would accept the attorney's decision, and the attorney then said he would not attend playbacks. Judge Volland immediately turned to the proposed jury question procedure, and Voyles's attorney agreed to the procedure. Voyles, who had been granted limited co-counsel status in the case, was personally present for this discussion and did not object to the plan regarding playbacks and jury questions at this or any later time. Because we conclude that Voyles waived his presence, we need not consider the State's argument that Voyles's absence during the court's discussion of jury questions was harmless beyond a reasonable doubt. Voyles's attack on jury instructions provided during deliberations
See, e.g., Dolchok v. State, 639 P.2d 277, 284 (Alaska 1982).
During his opening statement, Voyles announced that someone else killed Maxwell. Voyles contended that his brother, James Voyles, or someone else could be the murderer. In final argument, Voyles again suggested that the evidence pointed to James Voyles as the culprit.
When the parties discussed jury instructions before their final arguments, the prosecutor proposed an instruction on proximate cause. Voyles objected to the instruction, contending that no evidence had been presented that Maxwell was killed by anything other than a stabbing. The prosecutor responded that it was hard to anticipate what the jury might think during deliberations. She stated that it was possible for the jury to infer that Voyles had help in committing the murder.
Judge Volland declined the suggestion. He thought a proximate cause instruction implied that there may have been another contributing factor in the homicide. The judge stated that if the jurors asked a question about cause, it might be appropriate to give them such an instruction at that time.
During deliberations, the jury asked questions suggesting that the jury inferred that more than one person was responsible for the homicide. The first question was as follows:
On Counts I and II if there was more than one person present and one of those people committed the murder, are all of the parties who were present guilty?
Count I of the indictment charged first-degree murder. Count II charged second-degree murder under subsection (a)(1) of the statute. The prosecutor argued that the proper response was to instruct the jury on the definition of "cause" as she had originally proposed. Voyles argued that since it appeared that the question involved accomplice liability and not causation, the proper answer to the question was "no." Voyles objected to an instruction on accomplice liability, arguing that the indictment did not explicitly charge accomplice liability.
Judge Volland understood that the question raised issues of accomplice liability and not causation. He gave the following answer:
Only the defendant has been charged in Counts I and II. Please refer to instructions No[s]. 11, 12, and 13. Please advise the court if your question was about the word "caused" as used in instructions No[s]. 11 and 12.
The jury wrote back stating that their question was about "cause" and asked:
If he participated but did not stab her does that show intent on his part to "cause" the death of or "cause" serious injury to [Maxwell]?
Judge Volland determined that an appropriate response would be to partially instruct the jury on proximate cause. Voyles again objected, arguing that such an instruction would cause the jury to speculate about accomplice liability. He asked the court to instruct the jury that it "cannot find him guilty for the acts of others." Voyles also asked the court to instruct the jury that it could not convict Voyles unless it found that he was the person who committed the acts that caused Maxwell's death. Judge Volland denied the requests and sent the following answer to the jury:
A criminal defendant can be held responsible only for injuries that result from his or her conduct. But the defendant's conduct need not be the sole factor in producing the result. Rather, the test is whether the defendant's conduct was a substantial factor in bringing about the result. The law does not hold a defendant responsible if the injury or death, while perhaps linked to the defendant's conduct, is primarily the result of conduct on the part of a third person.
The jury then asked another question about felony murder:
In the act of a robbery that resulted in a death[,] is "conduct" the act of the robbery or the act that caused the death or both[?]
Voyles contended that the jury was asking about accomplice liability. Judge Volland disagreed, stating that it was dangerous to read too much into a jury question because the jury may not have reached any conclusions about a particular theory or fact.
Judge Volland answered the jury's question by responding:
"It can be both if death is conduct which aided in the taking of the property."
The jury next asked:
"Does he have to be the person wielding the knife to find [him] guilty on Count I?"
The prosecutor suggested that the answer was "no," citing AS 11.16.100. Voyles argued that the answer to the question was "yes", and that the jury should be instructed that it must find that Voyles was the person wielding the knife in order to find him guilty on Counts I through IV.
Judge Volland understood that AS 11.16.100 and .110, the accomplice liability statutes, did not require the State to indict a defendant on accomplice liability for him to be found guilty of that crime. But Judge Volland was concerned that Voyles would be prejudiced if accomplice liability instructions were given to the jury in the middle of deliberations, especially since accomplice liability was not argued by the prosecution or the defense. Judge Volland than gave the following instruction:
If you find that the knife was the cause of death, then you must find beyond a reasonable doubt, that defendant wielded the knife to find him guilty on Count I.
The jury then sent a note stating that it could not reach a unanimous decision on Count I, but had reached a unanimous decision on the other counts. The parties and the judge agreed to send the jury back for additional deliberations. The jury was unable to reach a unanimous decision on Count I. Voyles argued that to avoid inconsistent verdicts, the judge should instruct the jurors that they needed to find that Voyles was the person who performed the acts constituting the offense. Judge Volland rejected Voyles's request, noting that the elements of first-degree and second-degree murder were different, and explaining that he did not read as much into the jury notes as Voyles did. As noted above, the jury found Voyles guilty under each subsection of second-degree murder charged.
Voyles argues that, because of the questions from the jury and the answers the court provided, the jury must have found him guilty under an accomplice liability theory. Voyles submits that he was prejudiced because the only theory the State relied on was that he was solely responsible for the homicide.
The common law distinction between principals and accomplices was abrogated by statute in Alaska more than one hundred years ago. Alaska law recognizes no legal distinction between principals and accessories for indictment, trial, or sentencing. As we observed in Miller v. State, "It is well-settled that a defendant charged as a principal may be convicted as an accomplice; the converse is also true." Thus, under long established law, Voyles's indictment notified Voyles that he was subject to culpability as a principal or as an accomplice.
See Baker v. State, 905 P.2d 479, 484-86 (Alaska App. 1995).
See Scharver v. State, 561 P.2d 300, 302 (Alaska 1977); Miller v. State, 866 P.2d 130, 137 (Alaska App. 1994).
Id. at 137.
Even though a prosecutor may emphasize one theory of culpability for the crime charged, that emphasis does not preclude a jury from finding that the defendant is guilty under a different theory of culpability necessarily included in the indictment and not abandoned by the State.
Cheely v. State, 850 P.2d 653, 661-63 (Alaska App. 1993).
As the parties and the court recognized at trial, the notes from the jury indicated that the jury had questions about the potential for accomplice liability. Voyles argued that he would be prejudiced if the court instructed the jury on accomplice liability and Judge Volland accepted this argument. But even though instructions on accomplice liability might have affected Voyles's defense, in the circumstances of this case there was no legal prejudice. Although the superior court should have instructed the jury on accomplice liability, Voyles convinced Judge Volland not to give those instructions.
We conclude that any error was harmless. The jury found that Voyles was guilty of each of the three counts of second-degree murder charged in the indictment, and Judge Volland merged the counts into one conviction for sentencing. Count IV charged second-degree murder under a felony-murder theory, that is, that Maxwell was killed as a consequence of a robbery. Under the jury instructions for that count, the jury necessarily found that "in the course of or in furtherance of [the robbery], or in the immediate flight from [the robbery], any person caused the death of Maxwell[.]" Thus, under that count of second-degree murder, vicarious liability is included in the definition of the offense, so accomplice liability instructions were unnecessary. Because any failure to instruct on accomplice liability could not have affected the jury's verdict on the felony-murder count, Voyles's claim that the court erred in failing to instruct the jury on the other second-degree murder counts is moot.
We affirm Voyles's term of imprisonment and the restriction on his eligibility for discretionary parole
Finally, Voyles challenges his sentence and the parole restriction imposed by the superior court. Voyles argues that Judge Volland improperly relied upon uncharged criminal conduct when he found that Voyles was a worst offender and ordered that Voyles would not be eligible for discretionary parole until he served 80 years of his 99-year term of imprisonment for second-degree murder.
At sentencing, the State presented evidence linking Voyles to the uncharged sexual assault of W.G. in Washington in 1999, and evidence that Voyles's 1989 sexual assault of D.C. in Washington was more serious than reflected in his third-degree assault conviction. The prosecutor also called Richards to testify about her marriage to Voyles and his behavior during their relationship. Richards testified that Voyles drank excessively and used cocaine. Richards also testified that Voyles assaulted her by choking her and kicking her with steel-toed boots. When the prosecutor asked Richards if this was the only incident of assault during the relationship, Richards testified, "Not by a long shot."
Voyles testified and denied sexually assaulting W.G. in Washington in 1999, assaulting Richards in 2003, and destroying Richards's property. Voyles also denied sexually assaulting D.C. in Washington in 1989. Voyles conceded that he could not recall whether he had physically assaulted D.C., even though he pleaded no contest to third-degree sexual assault and admitted that he had engaged in sexual penetration with D.C. Voyles admitted that his criminal record included about six prior misdemeanor assault convictions.
Judge Volland found that several statutory aggravating factors from AS 12.55.155(c) applied by analogy. Judge Volland found that Voyles's vicious and brutal stabbing of Maxwell established that the offense manifested a deliberate cruelty to another person. Judge Volland also found it undisputed that a knife, which is a dangerous instrument, was used to commit the murder. Judge Volland further found that Voyles had a history of repeated or aggravated assaults. This finding was based on his six prior assault convictions and his Washington rape conviction. Judge Volland found that the assault on D.C. was a more serious offense than reflected in the conviction. Judge Volland also found that the State had established by clear and convincing evidence that Voyles had sexually assaulted W.G. The judge stated that W.G.'s testimony was convincing and that Voyles's denials were "completely unconvincing and not credible." Judge Volland stated that the similarities between the sexual assault on D.C. and W.G. were enough to establish a modus operandi.
See Gregory v. State, 689 P.2d 508, 509 (Alaska App. 1984).
See AS 12.55.155(c)(2).
See AS 12.55.155(c)(4).
See AS 12.55.155(c)(8).
Judge Volland also found that the State established by clear and convincing evidence that Voyles's marriage to Richards was an assaultive relationship — more assaultive than the single assault for which Voyles had been convicted. Judge Volland further found that the injuries Voyles inflicted on Richards were "much more serious" than described by Voyles. Judge Volland also found that there was "an association between assaultive behavior on his wife, particularly, strangulation or attempts at strangulation, and certain sexual dysfunction."
Judge Volland found by clear and convincing evidence that Voyles's conduct in Maxwell's murder was among the most serious conduct included in the definition of the offense. The judge found that the assault on Maxwell involved "unprovoked rage, violent in nature to a degree that shocks the conscience." Judge Volland found that Maxwell was brutally stabbed to death in her own apartment building in a way that reflected both uncommon and inexplicable rage. Judge Volland stated that Maxwell had no association whatsoever with Voyles and that there was "no possible explanation or reason for an attack of such a vicious nature."
See AS 12.55.155.(c)(10).
Judge Volland found by clear and convincing evidence that Voyles had an adjudication as a delinquent for conduct that would have been a felony if committed by an adult, because he committed a robbery as a juvenile. Judge Volland noted that in the robbery, Voyles used a large hunting knife and that this conduct was "eerily prescient" of what happened to Maxwell. Finally, Judge Volland found that Voyles had a history of repeated conduct similar to the offense for which he was convicted. This was based on Voyles's history or repeated instances of assaultive conduct involving strangulation, especially on women.
See AS 12.55.155(c)(19).
See AS 12.55.155(c)(21).
Based on these findings, Judge Volland found Voyles to have committed the worst kind of second-degree murder and found that he was a worst offender. The judge explained that Voyles's criminal history began at the age of seventeen and had not abated by age thirty-eight. Judge Volland stated that the troublesome and disturbing similarities of Voyles's unpredictable assaultive conduct against women reflected a pattern in his life. Judge Volland compared both Voyles's criminal history and the brutal nature of Voyles's offense with other second-degree murder cases where worst offender findings had been upheld.
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975) (holding that a maximum sentence should not be imposed without a foundation for characterizing a defendant as a worst offender and listing factors supporting such a characterization).
In sentencing Voyles, Judge Volland found that Voyles had poor prospects for rehabilitation, had committed a shocking offense, and had no remorse. Judge Volland imposed the maximum 99-year term for Voyles's second-degree murder conviction.
Voyles attacks Judge Volland's findings. But we have reviewed the sentencing record and the record supports all of Judge Volland's findings, including his finding that Voyles was a worst offender.
Voyles argues that his 99-year term for second-degree murder is clearly mistaken. Yet Voyles committed a brutal, unprovoked, fatal attack of inexplicable violence on a person with whom he had no known relationship. He had a decades-long record of assaults, with heavy alcohol and drug abuse, and no apparent inclination toward rehabilitation. Judge Volland also found that several statutory aggravating factors applied by analogy. After our review of the sentencing record, we are convinced that Judge Volland was not clearly mistaken in sentencing Voyles to a 99-year term.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to affirm a sentence unless the sentencing court's decision is clearly mistaken).
Under AS 33.16.090(b)(1), Voyles normally would have been eligible for discretionary parole after serving one-third of his sentence of imprisonment. But under the authority of AS 12.55.115, Judge Volland ordered that Voyles would not be eligible for discretionary parole until after he served 80 years of imprisonment.
A judge restricting a defendant's eligibility for discretionary parole must find that the defendant's normal parole eligibility is insufficient to protect the public and ensure the defendant's reformation. Judge Volland found that the restriction was necessary to protect the public from Voyles's assaultive behavior. Specifically, he found that he had to restrict Voyles's parole eligibility "until he is too old and too feeble to present a risk to society."
See Stern v. State, 827 P.2d 442, 450 (Alaska App. 1992).
The record supports Judge Volland's findings, and those findings justify the parole restriction. We affirm Judge Volland's decision to restrict Voyles's discretionary parole eligibility until Voyles serves 80 years of imprisonment.
Conclusion
The judgment of the superior court is AFFIRMED.
I write separately to more closely examine two issues raised in this appeal.
The asserted violation of Alaska Criminal Rule 16(b)(1)(B)
Voyles claims that the State violated Criminal Rule 16(b)(1)(B) by failing to provide Voyles with pre-trial notice that Detective Harold Strahle would testify as an "expert witness".
Strahle, who had twenty years' experience in criminal investigations, was the lead investigator at the crime scene. At Voyles's trial, Strahle testified concerning his personal observations at the scene, as well as his observations of Voyles's shoes and the knife that was recovered later across the street. Strahle also offered his analysis of what those observations indicated about the manner in which the crime occurred.
In particular, Strahle testified that the blood transferred to the wall of the stairway indicated that the victim, Megan Maxwell, was traveling down the stairs. Strahle further testified, based on the blood along the wall and the pool of blood at the top of the stairs, that Maxwell did not receive her chest wounds where her body was found, but rather was stabbed at the top of the stairs. Strahle testified that an arc of blood on the wall indicated that the blood was arterial blood that struck the wall under pressure. Strahle further concluded, based on the height of the blood stains on the wall, that Maxwell was standing when some of her wounds were inflicted. Regarding the absence of blood in the hallway connecting the two stairwells, Strahle testified that Maxwell's clothing or her hands might have intercepted the flow of blood from her body. Strahle also testified that many stab wounds do not immediately result in a large flow of blood away from the victim's body, because intervening tissue and clothing can intercept the blood. This, Strahle testified, could explain how a killer could inflict mortal stab wounds and yet leave the crime scene without being covered with blood.
Voyles claims that the superior court should have prevented Strahle from testifying about these matters because of a pre-trial disclosure violation. But Voyles is not claiming that the State failed to give him an advance description of Strahle's intended testimony. Rather, Voyles argues that he was misled because the State failed to designate Strahle as an "expert" witness under Criminal Rule 16(b)(1)(B).
In the discussion that follows, I use the term "expert witness" as shorthand for "witness who will give expert testimony" — because, in this context, the true underlying distinction is not between "expert witnesses" and "lay witnesses", but rather between "expert testimony" and "lay testimony".
The fact that a person may be an "expert" — in the sense that they have specialized training, education, or experience — does not necessarily mean that they will be giving expert testimony. For example, a nuclear physicist may be called as a witness in a tort lawsuit because they happened to witness a traffic accident.
The question for purposes of Criminal Rule 16(b)(1)(B) — as well as for Alaska Evidence Rules 702 through 705 — is whether the witness's proposed testimony is based on specialized training, education, or experience. As the authors of the Federal Rules of Evidence Manual explain,
[the distinction in the Evidence Rules] focuses on testimony, not witnesses. [If a] physician testifies that [a patient] was coughing and running a fever, this is lay witness testimony governed by Rule 701. However, if the physician also testifies that he diagnosed the patient as having Reactive Airways Dysfunction Syndrome caused by exposure to a toxic chemical, then this is testimony based on scientific, technical, or other specialized knowledge and must be qualified under Rule 702.
Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence Manual (9th ed. 2006), Vol. 3, p. 701-17.
The Alaska Supreme Court has recognized the principle that "experts" (in the broad sense of people with specialized training, education, or experience) will often give testimony that is partly based on their factual observations and partly based on their expert analysis — i.e., conclusions based on the witness's specialized training or experience. The supreme court uses the term "hybrid" witness to describe a person who presents this mixed type of testimony. See, e.g., Getchell v. Lodge, 65 P.3d 50, 56 (Alaska 2003).
But the true task is not to find a proper label for the witness. Rather, the task is to find the proper label for the witness's proposed testimony.
Voyles asserts that Detective Strahle presented expert testimony when he presented his conclusions about how the crime occurred. But this assertion is not self-evident; in fact, it appears to be dubious under Alaska law.
Our supreme court has acknowledged that testimony about cause and effect, or about conclusions drawn from observations, can be "lay" testimony even when it is presented by people with specialized training or experience. The test is whether the basis of the conclusion (once explained) can be readily understood and assessed by lay jurors.
See Choi v. Anvil, 32 P.3d 1, 3-4 (Alaska 2001), where the supreme court held that expert testimony was not required to establish a causal connection between two events unless "there is no reasonably apparent . . . causal relationship between the event demonstrated and the result sought to be proved." In Choi, the court upheld the admission of lay testimony that "described a situation easily understood by a jury: a rear-end automobile collision causing relatively common injuries [with] symptoms like pain, stiffness, and loss of strength". The court noted that, "[a]lthough a medical expert might have more precisely described the relationship between the impact and the effects described by the plaintiffs, the jury, using everyday experience, could readily find a causal relationship without this expert assistance."
Similarly, in Zok v. Collins, 18 P.3d 39, 42-43 (Alaska 2001), the court held that, even though expert testimony was typically required to establish a claim of legal malpractice ( i.e., an attorney's breach of the applicable duty of care or fidelity), the claim can be supported by the testimony of lay witnesses "where [the] negligence [would be] evident to lay people[,] or where the fault is so clear as to constitute negligence as a matter of law." In Zok, the court held that the evidence of the attorney's "general laxity in prosecuting Zok's [lawsuit was] so obviously a breach of an attorney's duty to his client that the average juror untrained in the law would be able to make a finding of negligence." Id. at 42.
The supreme court has applied this same rule in medical malpractice actions: see D.P. v. Wrangell General Hospital, 5 P.3d 225, 228 (Alaska 2000).
Returning to Voyles's case, most of Detective Strahle's conclusions about how the crime occurred rested on matters within a lay person's understanding — for instance, the flowing and pooling properties of blood, the absorptive properties of clothing, and the ways in which blood can be transferred to, and can stain, various surfaces. It is true that Strahle can be termed an "expert" in the sense that he is specially trained to look for and observe such matters. But, for the most part, his analysis of these matters — his conclusions drawn from observed circumstances — did not rest on technical science, study, or experimentation. Rather, most of his conclusions rested on knowledge of the world that was shared by the jurors.
Accordingly, with a few arguable exceptions, Strahle's conclusions about how the crime probably occurred do not appear to be the type of testimony that required the State to list Strahle as an "expert" witness under Criminal Rule 16(b)(1)(B).
Moreover, for the reasons that follow, even if certain aspects of Strahle's testimony should be classified as "expert testimony", the State's failure to explicitly label Strahle as an "expert witness" appears to have little importance in Voyles's case.
Under federal law, the distinction between witnesses who will give lay testimony and witnesses who will give expert testimony has considerable potential importance to the litigation of a criminal case. Under Federal Criminal Rule 16(a)(1), the government need not disclose lay witnesses, and must only disclose expert witnesses. Moreover, under federal evidence law, all expert testimony must meet the Daubert standard for admissibility. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148; 119 S.Ct. 1167, 1174; 143 L.Ed.2d 238 (1999). Thus, the characterization of whether a witness will give "lay testimony" or "expert testimony" affects both the government's duty of pre-trial disclosure and the government's obligation to lay a Daubert foundation for the testimony.
On the other hand, under Alaska Criminal Rule 16(b)(1), the government must disclose all of its witnesses, not just those who will give expert testimony. And in Marron v. Stromstad, 123 P.3d 992, 1003-08 (Alaska 2005), the Alaska Supreme Court rejected the holding of Kumho Tire. Thus, under Alaska law, the requirement of a Daubert foundation applies only to "expert testimony based on scientific theory, as opposed to testimony based upon the expert's personal experience." Marron, 123 P.3d at 1004.
In the present case, Voyles does not dispute that he received advance notice of Strahle's intended testimony, nor does Voyles claim that the State failed to establish a proper foundation for Strahle's testimony. Rather, Voyles argues that he was misled by the fact that the State did not attach the label "expert" to Strahle. Voyles contends that, because the State did not label Strahle as an expert witness, his trial attorney assumed that the State would not ask Strahle to testify about all of the matters contained in his report, but rather would confine Strahle's testimony to matters that did not involve expertise.
As explained above, it appears that much of the testimony that Voyles now complains of was not, in fact, "expert testimony". Moreover, when Voyles's defense attorney presented this claim of surprise and prejudice to the trial judge, the judge rejected the attorney's claim that he had been misled. The judge instead found that the defense attorney, knowing of Strahle's intended testimony, hired a criminologist to evaluate Strahle's conclusions but then made a tactical choice not to bring this criminologist to Anchorage to observe the crime scene and/or testify at trial.
The question of whether the jury should have been instructed on accomplice liability
The State's theory of prosecution was that Voyles had acted alone when he attacked and killed Maxwell. The defense likewise argued that there had been one killer — but the defense suggested that this killer was Voyles's brother, James.
During jury deliberations, the jurors asked a series of questions which demonstrated that they were considering a third alternative: the possibility that Voyles and his brother had jointly attacked Maxwell. The trial judge and the attorneys recognized that this inquiry raised two legal issues: accomplice liability and proximate cause.
The trial judge was aware that, under Alaska law, people who are indicted for a crime are deemed to be on notice that they can be convicted either as a principal or an accomplice. However, because the State had not litigated Voyles's case on notions of complicity, the judge was concerned that Voyles would be unfairly prejudiced if the jury were to find Voyles guilty based on the theory that he was an accomplice to a crime committed by his brother.
Baker v. State, 905 P.2d 479, 487 (Alaska App. 1995).
But rather than directly telling the jurors that they could not convict Voyles under this theory, the judge decided to simply omit any discussion of complicity when answering the jury's questions. To achieve this goal, the judge had to give the jury instructions on "causation" that were legally wrong or incomplete.
Thus, the judge told the jurors that if they concluded that Maxwell died as a result of knife wounds, "then [they] must find, beyond a reasonable doubt, that [the] defendant wielded the knife to find him guilty on Count I [ i.e., the first-degree murder count]." In context, this instruction meant that if the jury believed that both Voyles brothers participated in the attack, but that James Voyles was the one who stabbed Maxwell to death, then the jury should acquit the defendant, Earl Voyles.
As a legal matter, this instruction was wrong: if Voyles acted as his brother's accomplice, then it would not make any difference which one of them stabbed Maxwell. This instruction only makes sense in the context of the trial judge's attempt to stop the jury from basing its verdict on a theory of accomplice liability.
After the jury announced that they were unable to reach a decision on Count I of the indictment ( i.e., the first-degree murder count), Voyles's attorney realized that the jury instruction quoted above only referred to "Count I" — thus raising the concern that the jurors, by negative implication, might believe that it was proper for them to rely on a theory of complicity to convict Voyles on Counts II through IV — i.e., the three theories of second-degree murder. For this reason, the defense attorney asked the trial judge to instruct the jury that, with respect to all counts of the indictment, Voyles could not be convicted unless the jurors concluded that he personally performed the conduct constituting the offense. The trial judge refused this request — thus creating an issue on appeal.
Voyles argues that the trial judge was correct when he concluded that it would be unfair to allow the jury to convict Voyles under a theory of complicity — and that this ruling should extend to the second-degree murder counts as well as the first-degree murder count. The State responds that it would have been proper for the jury to consider a theory of complicity with respect to all of the charges against Voyles, and that the only error was an error that ran in Voyles's favor: the error of implicitly telling the jurors that they could not rely on a theory of complicity to convict Voyles of first-degree murder.
It is difficult to tell whether the trial judge's underlying ruling was proper — the ruling that it would be unfair to allow the jury to convict Voyles under a complicity theory, after Voyles himself raised the possibility that the stabbing was committed by his brother. However, the real problem on appeal is that this underlying ruling was implemented by half measures.
If the trial judge truly believed that it would be unfair to convict Voyles of either first-or second-degree murder under the theory that Voyles participated as the accomplice of his brother James, the trial judge should simply have said so to the jury. Instead, the judge gave the jury an instruction that implicitly communicated this ruling with respect to the first-degree murder charge (Count I), but the judge gave the jury no comparable instruction with respect to the three theories of second-degree murder (Counts II through IV).
I agree with my colleagues that, given the jury's ultimate decision to find Voyles guilty on all three theories of second-degree murder, and given the trial judge's ensuing decision to merge these three guilty verdicts into one conviction for second-degree murder, any controversy regarding the trial judge's underlying ruling on complicity is now moot. This is true because, even if the jury should have been told that they could not rely on a theory of complicity to find Voyles guilty under the first two theories of second-degree murder ( i.e., the theories codified in AS 11.41.110(a)(1) and (a)(2)), Voyles was not entitled to such an instruction with respect to the third theory of second-degree murder: felony murder as defined in AS 11.41.110(a)(3).
The felony murder statute provides (in pertinent part) that a person commits second-degree murder if that person, "while acting either alone or with one or more [other] persons, . . . commits or attempts to commit . . . robbery in any degree . . . and, in the course of or in furtherance of that crime or in immediate flight from that crime, any person causes the death of a person other than one of the participants." (Emphasis added)
In other words, once the jury found that Voyles engaged in a robbery of Maxwell, and that Maxwell died as a result, Voyles was guilty of second-degree murder no matter whether Voyles acted alone or in concert with others, and no matter who killed Maxwell. The jury's guilty verdict on Count IV of the indictment does not rest on notions of vicarious liability based on complicity; rather, it stems from the definition of felony murder itself.