Summary
upholding judge’s decision to deny a mistrial where the prosecutor stated in opening that a witness would testify, but the witness later became unavailable, and noting that while convictions have been reversed on that ground, such cases are the exception to the normal presumption that jurors will obey the cautionary and limiting instructions of the trial judge (citing Lau v. State , 175 P.3d 659, 663 (Alaska App. 2008) ; Dailey v. State , 65 P.3d 891, 897 (Alaska App. 2003) )
Summary of this case from Farmer v. StateOpinion
Court of Appeals No. A-10859 Trial Court No. 3AN-08-10649 CR No. 5948
05-08-2013
NICHOLAS R. WORLEY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Anchorage, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, David C. Stewart, Judge.
Appearances: Jane B. Martinez, Anchorage, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge MANNHEIMER.
Nicholas R. Worley was convicted of first-degree assault under AS 11.41.200(a)(1) (reckless infliction of serious physical injury by means of a dangerous instrument) and 200(a)(3) (inflicting serious physical injury on another person under circumstances manifesting extreme indifference to the value of human life). Worley's conviction was based on evidence that he and a friend, Adam Cornelison, jointly attacked a man in an alley in downtown Anchorage. The victim of this attack suffered multiple jaw fractures that required weeks of medical treatment.
Before Worley's trial began, the State reached a plea agreement with Worley's co-defendant, Cornelison. The prosecutor, thinking that Cornelison would testify at Worley's trial, described Cornelison's anticipated testimony during his opening statement. But when Cornelison was called to testify, he invoked his privilege against self-incrimination (and the superior court upheld his invocation of privilege). Thus, Cornelison did not testify at Worley's trial.
After it became clear that Cornelison would not testify, Worley asked the superior court to order a mistrial, but the superior court denied this request. On appeal, Worley argues that the superior court committed error when the court declined to order a mistrial; he contends that the fairness of his trial was fatally prejudiced after the jury heard the prosecutor's description of Cornelison's anticipated testimony.
Worley additionally argues that the evidence presented at his trial was insufficient to establish that he, as opposed to Cornelison, was the one who administered the blows that led to the victim's serious physical injury (the multiple jaw fractures).
For the reasons explained in this opinion, we conclude that neither of Worley's claims has merit, and we therefore affirm his conviction.
Underlying facts relating to the crime, and to the identification of Worley and Cornelison as the perpetrators
On the night of September 21, 2008, several people witnessed a man being beaten by two other men in an alley behind the Avenue Bar in downtown Anchorage. Witnesses described one of the attackers as tall and slim, while the other attacker was described as shorter and "beefy" or "stocky".
The State alleged that Worley was the taller, more slender attacker, and that his co-defendant, Cornelison, was the shorter, stockier attacker.
According to witnesses, the two men beat the victim until he fell to the ground, and then the attackers continued to kick and stomp him. One witness testified, in particular, that it was the taller attacker who kicked or stomped the victim as he was lying on the ground. Another witness testified that, although the two men jointly attacked the victim, it was the taller attacker who was standing closer to the victim's head — and it was the taller attacker who continued the assault after the shorter attacker had stopped.
Some of the witnesses shouted at the two men to stop. Then, as more people arrived on the scene, the two men fled. One of the witnesses followed the two men out of the alley and into the Avenue Bar. Inside the bar, this witness saw the two men making their way to the back door of the bar, and the witness shouted to the bartender to follow them.
The bartender and the doorman followed the two men out the back door. Some of the witnesses to the assault were still standing in the alley, within sight of the back door, and they recognized the two men as they emerged through the back door. One of these witnesses, accompanied by the Avenue Bar's doorman, followed the two men until they spotted a police officer and were able to enlist the officer's assistance. At this point, the witness identified the two men to the officer, and the officer placed the two men — Worley and Cornelison — in custody.
The police held a series of show-ups soon after, and several of the people who had witnessed the beating in the alley identified Worley and Cornelison as the perpetrators of this crime.
When the victim of the beating, Corey Czechowski, was brought to the hospital emergency room, he was unable to remember what had happened to him. He did not testify at Worley's trial.
Both Worley and Cornelison were indicted for first-degree assault. Before Worley's trial began, Cornelison reached a plea agreement with the State: he pleaded guilty to the lesser offense of second-degree assault.
Underlying facts relating to Worley's request for a mistrial, based on the content of the prosecutor's opening statement
Before Worley's trial, during a discussion of the State's plea agreement with Cornelison, the prosecutor announced that he intended to describe Cornelison's anticipated testimony during his opening statement. The prosecutor said that he wanted to give advance notice of this because he did not want to "step[] out of bounds". Worley's attorney did not object to the prosecutor's intention to discuss Cornelison's anticipated testimony in his opening statement.
Later, at Worley's trial, when the prosecutor delivered his opening statement to the jury, he devoted the greater part of his statement to describing the anticipated testimony of the half-dozen witnesses who either observed the fight in the alley or who followed the attackers as they fled the scene. Toward the end of his opening statement, the prosecutor summarized Cornelison's anticipated testimony, based on Cornelison's statements to the police at the time of his arrest.
The prosecutor told the jurors that Cornelison was going to say that the victim, Czechowski, was the first aggressor — that Czechowski pulled a knife or a gun, "something shiny", on Cornelison. In response, Cornelison tried to hit Czechowski, but he missed and he (Cornelison) fell to the ground. Cornelison claimed that it was another person on the scene — a "bum" named "Bill" — who then started attacking Czechowski. Cornelison told the police that it must have been "Bill the bum" who inflicted Czechowski's injuries.
According to Cornelison's narrative, Worley was present at the scene, but (to Cornelison's knowledge) Worley never struck Czechowski.
The night before the prosecutor planned to call Cornelison to the stand, the prosecutor learned that Cornelison intended to invoke his privilege against self-incrimination and refuse to testify. When court convened the next day, the trial judge — Superior Court Judge pro tempore David C. Stewart — held a hearing to ascertain the basis of Cornelison's claim of privilege. After hearing an ex parte presentation from Cornelison, Judge Stewart ruled that Cornelison had a valid claim of privilege, and that he could properly refuse to testify.
When Judge Stewart announced his ruling, Worley's attorney moved for a mistrial. The defense attorney argued that the trial had just become unfair, because the prosecutor had described Cornelison's anticipated testimony to the jury in some detail, but now the defense attorney was unable to cross-examine Cornelison regarding these matters.
Judge Stewart recognized that this issue was complicated, and he told the parties that he needed to do some research before making a ruling. The judge therefore took the mistrial request under advisement. When the jury returned to the courtroom, Judge Stewart informed the jurors that, even though they had earlier been told that Cornelison would be called as a witness, the court had just ruled that Cornelison was unavailable to testify. Judge Stewart also told the jurors that they should not speculate as to why Cornelison was not available.
The next day, Judge Stewart returned to Worley's pending motion for a mistrial. He asked the attorneys if they had anything more to say concerning that issue, but both attorneys said that they had nothing to add. Judge Stewart then announced that he had decided not to declare a mistrial.
In explaining this ruling, Judge Stewart stated that he recalled most of the prosecutor's opening statement, and how it was presented. The judge said that he thought it was clear, in context, that the prosecutor's description of Cornelison's post-arrest statement to the police was not evidence. Judge Stewart also noted that he had explicitly instructed the jurors (before the attorneys delivered their opening statements) that what the attorneys said in opening statements was not evidence.
Judge Stewart acknowledged that "there have been [cases where] opening statements have been found to be so prejudicial that they can require a mistrial." But the judge concluded that the problem raised in Worley's case "[did not] reach ... that level".
Should the superior court have granted Worley's motion for a mistrial?
Worley contends that, because the prosecutor described Cornelison's anticipated testimony during his opening statement, Worley was essentially put in the position of having Cornelison testify against him with no opportunity for cross-examination. Worley notes, in particular, that the prosecutor's description of Cornelison's post-arrest statement placed Worley at the scene of the attack, and also suggested that Worley might have taken a swing at Czechowski.
Worley's defense at trial was that he had not participated in the attack on Czechowski — that the witnesses were mistaken when they identified Worley as being one of the attackers. Worley argues that once the jury heard the prosecutor describe Cornelison's anticipated testimony, the jurors would have been unable to set aside what they had heard — thus making Worley's trial so unfair that Judge Stewart abused his discretion when he declined to order a mistrial.
As Judge Stewart noted in his ruling, there are cases where convictions have been reversed because the prosecutor's opening statement contained crucial factual assertions that were never supported by testimony. See, for example, State v. Walden, 851 A.2d 758, 763-64 (N.J. App. 2004), where the prosecutor's opening statement included a recitation of a co-defendant's statement implicating the defendant as the shooter. The New Jersey court ordered a new trial because the co-defendant did not take the stand, and because this information was "critical and crucial". Id. at 764, 766. See also Hicks v. Straub, 239 F.Supp.2d 697, 709, 714 (E.D. Mich. 2003), where a conviction was reversed because, during the government's opening statement, the prosecutor described anticipated testimony concerning the defendant's purported confession.
However, such cases are exceptions to the normal presumption that jurors can, and will, obey the cautionary and limiting instructions of the trial judge.
See, e.g., Lau v. State, 175 P.3d 659, 663 (Alaska App. 2008); Dailey v. State, 65 P.3d 891, 897 (Alaska App. 2003).
The United States Supreme Court's decision in Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), provides an instructive point of comparison.
In Frazier, the prosecutor expected a co-defendant to testify at trial. Based on this expectation, the prosecutor included a summary of the co- defendant's anticipated testimony in his opening statement. Later, when the co-defendant was called as a witness, he asserted his privilege against self-incrimination. On appeal, Frazier claimed that his right to confrontation was violated because the prosecutor had given the jury a summary of the co-defendant's anticipated testimony — a summary that "may well have been the equivalent in the jury's mind of testimony" that Frazier was not able to cross-examine.
Frazier, 394 U.S. at 733 & 736, 89 S.Ct. at 1421-22 & 1423.
Id., 394 U.S. at 734, 89 S.Ct. at 1422.
Ibid.
Although the Supreme Court acknowledged that the issue was "not an easy one", the Court ultimately concluded that, under the circumstances of Frazier's case, the jury could reasonably be expected to follow the trial judge's admonition "to limit its consideration to the evidence introduced during trial", and to set aside information presented during opening statements that did not conform to the evidence.
Id., 394 U.S. at 736, 89 S.Ct. at 1423.
The Supreme Court noted that the information concerning Frazier's co-defendant's anticipated testimony did not come into the trial through another witness's testimony, but only in the prosecutor's opening statement. The jury was instructed that the statements of counsel were not evidence. Moreover, the prosecutor's description was "no more than an objective summary of evidence which the prosecutor reasonably expected to produce", and it "[was] not touted to the jury as a crucial part of the prosecution's case". Rather, the prosecutor's description "took only a few minutes to recite", and it was "sandwiched" between major portions of the opening statement.
Id., 394 U.S. at 734, 89 S.Ct. at 1422.
Id., 394 U.S. at 736, 89 S.Ct. at 1423.
Ibid.
Id., 394 U.S. at 733, 89 S.Ct. at 1422.
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We conclude that the facts of Worley's case lead to the same result as in Frazier. Here, as in Frazier, the prosecutor's description of the co-defendant's anticipated testimony was only a small part of the prosecutor's opening statement. It was "sandwiched" between the prosecutor's lengthy description of the testimony to be given by the half-dozen eye-witnesses, and the prosecutor's description of Worley's behavior (and his interaction with Cornelison) at their initial appearance before a magistrate.
It is true that, in view of Worley's trial defense of alibi, Cornelison's description of events was inculpatory of Worley in two respects: Cornelison placed Worley at the scene of the fight, and Cornelison suggested that Worley might have tried to come to his defense by taking a swing at Czechowski.
But the State's case against Worley did not hinge on Cornelison's anticipated testimony. Rather, the State presented several witnesses for the purpose of placing Worley at the scene of the fight in the alley, and of identifying Worley as one of Czechowski's two attackers.
When we view the proceedings at Worley's trial as a whole, we are convinced that Judge Stewart could reasonably conclude that the jurors would understand and follow his cautionary instruction that the opening statements of the attorneys were not evidence, and that the jurors' verdict had to be based on the evidence presented in court.
Accordingly, we uphold Judge Stewart's decision to deny Worley's request for a mistrial.
The sufficiency of the evidence to support Worley's conviction for first-degree assault
Worley concedes that the State's evidence was legally sufficient to prove that he participated in the attack on Czechowski. However, Worley argues that the State's evidence was not sufficient to prove that Worley, as opposed to Cornelison, was the one who inflicted the severe injury to Czechowski's jaw. Thus, Worley contends, the State's evidence was insufficient to establish Worley's guilt of first-degree assault (an offense that requires the State to prove that the defendant inflicted "serious physical injury" on another person).
As a legal matter, under the definition of complicity codified in AS 11.16.110(2), if the State proved that Worley aided or abetted Cornelison with the intent of promoting or facilitating the attack on Czechowski, it was not necessary for the State to prove which of the two attackers inflicted the injuries to Czechowski's jaw. Under AS 11.16.100, both men would be criminally responsible for those injuries. See our discussion of this point of law in Andrew v. State, 237 P.3d 1027, 1032-1041 (Alaska App. 2010).
The problem in Worley's case is that the trial prosecutor never pursued a complicity theory, the jury was never instructed on the law of complicity, and the jurors made no finding on the issue of whether Worley could be held accountable for Cornelison's actions under the complicity statute, AS 11.16.110(2). Rather, the jury instructions asked the jurors to decide whether the State had proved that Worley personally inflicted the serious physical injury in this case.
Nevertheless, we conclude that the State's evidence was sufficient to support the jury's verdict, even under this artificially narrow view of the law.
Worley points out that some of the witnesses to the assault did not meaningfully differentiate between the actions of the two assailants. But Worley's argument minimizes the testimony of two witnesses.
One witness, Joshua Samardick, testified that the victim, Czechowski, was lying on the ground with his head toward the east. Samardick further testified that the taller assailant (i.e., Worley) was standing toward the east (i.e., toward Czechowski's head), while the shorter assailant (i.e., Cornelison) was standing to the west, further away from Czechowski's head. The other witness, Tristan Fackler, testified that she saw the taller man kicking or stomping on Czechowski's head when the shorter man had stepped back, away from the victim.
From the testimony of these witnesses, the jury could reasonably infer that it was Worley who inflicted the injuries to Czechowski's jaw. Accordingly, there was sufficient evidence to support Worley's conviction for first-degree assault, even under the assumption that the State had to prove that Worley personally inflicted the injuries.
Conclusion
The judgement of the superior court is AFFIRMED.