STEADMAN v. STATE, A-9745 (Alaska App. 7-2-2008)

BERNARD STEADMAN, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9745.Court of Appeals of Alaska.
July 2, 2008.Page 1

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-05-917 Cr.

Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Blair M. Christensen, 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
MANNHEIMER, Judge.

Bernard Steadman appeals his convictions for two different burglary / thefts, plus three other charges that stemmed from his arrest: resisting arrest,Page 2
fifth-degree weapons misconduct,[fn1] and fourth-degree controlled substance misconduct. The issue raised on appeal is whether it was proper to litigate all these charges in a single trial.

As we explain in this opinion, we conclude that these crimes were sufficiently related to authorize joinder of the charges under Alaska Criminal Rule 8(a). We further conclude that Steadman has failed to show that the superior court abused its discretion when the court denied Steadman’s request for severance of the charges under Alaska Criminal Rule 14. Accordingly, we affirm Steadman’s convictions.

Underlying facts

In mid-March 2005, a Fairbanks homeowner, Melvin Lindquist, noticed that a man had come into the arctic entry of his home and was peering into his home through the small window in the inner door. When this man saw that Lindquist had observed him, the man started knocking on the inner door. Lindquist thought the man’s behavior was odd because visitors to his home usually knocked on the outer door of the arctic entry rather than entering and knocking on the inner door.

When Lindquist answered the door, the man asked Lindquist if he needed any snow shoveled. Lindquist replied that he did not need the man’s services, and the man left. (Later, at Steadman’s trial, Lindquist identified Steadman as the man in his arctic entry.)

About one week later, on March 20, 2005, the Lindquist home was burglarized. The burglar(s) stole jewelry, portions of a coin collection, and a book of blank checks. There was one peculiar aspect to the theft of these checks: the book ofPage 3
checks had been in a box with several other books of checks, and the stolen book had been removed from the bottom of this box.

The following day (March 21st), another Fairbanks home was burglarized. The burglar(s) stole jewelry, foreign currency, a Crown Royal bag containing money, and a book of blank checks. This book of checks was taken from the middle of a box of checks.

That same afternoon, a woman named Mary Soplu cashed one of checks that was stolen during this second burglary. The check was for six hundred dollars, and the signature of the homeowner had been forged. When bank employees noticed that the number on the check was out of sequence with the homeowner’s recently negotiated checks and that the signature on the check did not match the account-holder’s signature that they had on file, they notified the homeowner, and she promptly closed the account.

The following day (March 22nd), a man named Kevin Stowell attempted to cash another of the checks that was stolen during the second burglary. This time, the check was for eight hundred dollars. Stowell was accompanied by Bernard Steadman.

When the bank teller attempted to complete the transaction, she discovered that the account had been closed the day before. When bank staff informed Stowell of this, he and Steadman left the bank. A few minutes later, Stowell returned to the bank, but he left again after bank employees reiterated that the account was closed.

After Stowell left the second time, the bank manager called the homeowner who held the account. The homeowner told the bank manager that the check had been stolen. Following this phone conversation, the bank manager observed Stowell and Steadman get into a taxi cab together. The bank manager noted the cab number of this vehicle, and then she called the police.

Fairbanks Police Officer Christopher DeLeon responded to the call. DeLeon located the cab described by the bank manager, and he activated his overheadPage 4
lights, intending to pull the cab over. As the cab driver slowed down, DeLeon saw Steadman look over his shoulder at the patrol car. Steadman put a stocking cap over his head, and then he opened the door and got out of the cab before it came to a stop. Once outside the cab, Steadman began running.

DeLeon notified his dispatcher that the suspect was running. DeLeon then got out of his patrol car and began chasing Steadman on foot. As he chased Steadman through the streets, DeLeon identified himself as a police officer and informed Steadman that he was under arrest. DeLeon then attempted to use his taser on Steadman from a distance, but Steadman’s jacket deflected the taser.

When DeLeon finally got closer to Steadman, Steadman turned to face the officer and attempted to hit him. DeLeon dodged Steadman’s blow and applied the taser once more. Again, the taser did not seem to affect Steadman; he was able to continue fleeing.

DeLeon then saw Steadman pause and reach into his pocket. Thinking that Steadman might be reaching for a weapon, DeLeon drew his sidearm and pointed it at Steadman. He ordered Steadman not to take anything out of his pocket. Steadman turned and began running again, but this time DeLeon was at last able to effectively use his taser on Steadman, and Steadman was knocked to the ground.

While lying on the ground, Steadman reached towards his calf as if to grab something. DeLeon used his taser again, and Steadman ceased resistance.

Backup officers soon arrived, and they placed Steadman in restraints. During a search incident to this arrest, the officers discovered a military-style survival knife in a sheath strapped to Steadman’s calf (i.e., where Steadman had been reaching during the final stage of his encounter with DeLeon). Steadman was also carrying jewelry and foreign and rare currency. In addition, Steadman possessed blank checks from both of the residences that had been burglarized.Page 5

Steadman was transported to the police station. Later that day, while Steadman was in a holding cell, officers observed Steadman engaged in a peculiar activity: he was tearing off his clothes with his teeth. The officers then searched Steadman again. This time, they found a marijuana pipe, a baggie containing a white powder, and some more foreign currency. The white powder field-tested positive for cocaine.

Based on these events, Steadman was charged with two counts of first-degree b urglary and two cou nts of second-degree theft (i.e., the tw o residential bu rglaries and the thefts from those two residences), as well as a trio of charges stemming from his arrest: resisting arrest, fifth-degree weapons misconduct (failing to alert Officer DeLeon that he was carrying a concealed deadly weapon), and fourth-degree controlled substance misconduct (possession of cocaine).

Were the various charges against Steadman properly joined under AlaskaCriminal Rule 8(a)?

On appeal, Steadman argues that the two burglary / thefts should not have been tried together. Steadman also argues that, even if the two burglary / thefts were properly joined for trial, the cocaine possession charge was entirely separate and should have not have been tried with the other charges.

Under subsection (1) of Alaska Criminal Rule 8(a), two or more offenses charged against the same defendant can be joined in a single charging document if they “are of the same or similar character” and if “it is likely that evidence of one . . . offense would be admissible to prove another”. Steadman concedes that the two burglary / thefts were “of the same or similar character”, but he argues that, if these offenses had beenPage 6
tried separately, evidence of one burglary / theft would not have been admissible at the trial of the other.

We disagree. As described above, stolen property from both burglary / thefts was found in Steadman’s possession when he was arrested. Given this fact, Steadman conceded that he was guilty of theft by receiving, but he claimed not to have participated in the burglaries. Thus, the major problem that the State faced at Steadman’s trial was to prove that he committed the burglaries.

Here, the State’s evidence showed that the two residential burglary / thefts were committed on consecutive days. One week before, Steadman was discovered inside the arctic entry of one of these residences, peering through the window without announcing his presence until he saw that the homeowner had observed him. Moreover, each of the thefts bore a striking similarity: a single book of checks was stolen from a box of checks in such a way that the theft would not be immediately obvious —i.e., the book was taken from the bottom or middle of the box. And finally, when Steadman was arrested, he was found in possession of checks from both of the homes. The superior court could properly conclude that evidence of these burglary / thefts would be admissible at the separate trial of the other to prove Steadman’s participation in each burglary — and, thus, the charges were properly joined for trial.[fn2]

This leaves the question of whether the remaining three charges were properly joined for trial.

Steadman does not contest the joinder of the resisting arrest and weapons misconduct charges — and our prior decisions in this area clearly support the joinder of these charges under subsection (3) of Rule 8(a), which authorize the joinder of two orPage 7
more charges if they “are based on two or more acts or transactions [that are] connected together”.[fn3]

However, Steadman argues that the cocaine possession charge should not have been joined with the other charges — because it was of a different nature from the other charges, and because the criminal activities alleged in the other charges had all ended by the time the police discovered that Steadman had cocaine in his possession.

It is true that cocaine possession is a different type of crime from burglary, theft, resisting arrest, or failure to announce to police officers that one is armed with a concealed deadly weapon. However, as noted above, subparagraph (3) of Rule 8(a) allows the State to join dissimilar charges if those charges “are based on two or more acts or transactions [that are] connected together”.

In Steadman’s case, an uninterrupted series of events on March 22, 2005 (beginning with the attempt to cash a check for $800 on the closed account) led to the traffic stop of the cab, Steadman’s flight, Steadman’s resistance, Steadman’s eventual arrest, and two searches of his person. The first search (contemporaneous with the arrest) yielded physical evidence of Steadman’s participation in the two burglary / thefts. The second search, which took place a little later in the holding cell at the police station, yielded more evidence of Steadman’s participation in the burglary / thefts, as well as the cocaine.

In Phillips v. State, 70 P.3d 1128, 1133-34 (Alaska App. 2003), this Court upheld the joinder under Criminal Rule 8(a)(3) of a series of crimes committed over the course of several hours. The defendant inPhillips had committed an armed robbery andPage 8
an assault in Anchorage shortly after being released from prison. He then enticed a cab driver to drive him from Anchorage to Palmer. Rather than pay for this ride, Phillips stole the cab once they got to Palmer. Phillips then drove the stolen vehicle toward Glennallen. Just before Phillips reached Glennallen, he was apprehended by a state trooper. To avoid being returned to Anchorage, Phillips committed the crimes of escape and murder. We concluded that all of these crimes were properly joined for trial under Rule 8(a)(3) because “[t]he superior court could properly conclude that the Anchorage robbery and assault, the Palmer vehicle theft, and the Glennallen escape and murder constituted `acts or transactions [that were] connected together’.” Id. at 1133.

Here, as in Phillips, all of the charges against Steadman arose from a series of connected events. Even though Steadman’s act of tearing off his clothes with his teeth and the ensuing discovery of the cocaine were among the last of these events, they were still part of the ongoing series, and it would have been difficult to present these events to a jury without mentioning what had gone on before. Accordingly, we conclude that the cocaine possession charge was properly joined with the others.

Should the various charges have been severed under Alaska CriminalRule 14?

Steadman’s final argument is that, even if all the charges were properly joined for trial under Criminal Rule 8(a), the superior court nevertheless should have granted Steadman’s motion for severance of the two burglary / theft charges from each other, and his motion for severance of the cocaine charge from all others, under Criminal Rule 14.

Criminal Rule 14 authorizes a trial court to grant relief from the joinder of charges if the defendant would be prejudiced by a joint trial. However, in cases wherePage 9
a defendant seeks severance of charges under Rule 14, “the [trial] court must weigh [the] prejudice to the defendant caused by the joinder against the obviously important considerations of economy and expedition in judicial administration.” Stevens v. State, 582 P.2d 621, 627-28
(Alaska 1978).

To be entitled to severance under Criminal Rule 14, a defendant must show that the joinder of the charges will actually prejudice the jury’s ability to fairly consider the case.[fn4] The fact that evidence pertaining to some of the charges would not have been cross-admissible in separate trials is not sufficient, by itself, to require severance — because the lack of cross-admissibility does not inevitably result in prejudice.[fn5] Nor is it enough for the defendant to argue that a joint trial of several charges will tend to suggest to the jury that the defendant has a criminal disposition.[fn6] Rather, to establish actual prejudice, a defendant must show “that the jury’s ability to fairly decide the individual charges will be substantially impaired if the jury hears evidence relating to other charges at the same time.”[fn7]

Steadman asserts that, even though the State had strong evidence that Steadman was guilty of theft (in fact, Steadman conceded this), the State’s evidence was weaker on the issue of whether Steadman committed the burglaries. Steadman contends that the joinder of the two burglary charges prejudiced him because the jury might not have convicted him but for the cumulative effect of hearing the evidence concerning both burglaries at once.Page 10

But this argument hinges on the premise that evidence of each burglary should not have been admissible at the separate trial of the other. We have already explained why we conclude that the superior court could properly rule that the evidence of the two burglaries was cross-admissible. Thus, Steadman was not “prejudiced” for purposes of Criminal Rule 14 by the fact that one jury heard evidence of both burglaries. To the extent that the jury considered the evidence pertaining to both burglaries when deciding whether Steadman was guilty, this was proper.

Steadman points out that, in an unpublished decision, this Court affirmed a trial judge’s decision to grant severance under similar circumstances: Vaska v. State, Alaska App. Memorandum Opinion No. 4326 (January 10, 2001), 2001 WL 21196. In Vaska, the evidence of the two different charges against the defendant qualified for cross-admission under Alaska Evidence Rule 404(b)(2). Nevertheless, the trial judge granted the defendant’s motion for severance. Id., Memorandum Opinion at 7, 2001 WL 21196 at *3.

The trial judge in Vaska based his ruling on Alaska Evidence Rule 403, which authorizes a judge to exclude evidence that would otherwise be admissible if the evidence’s potential to create unfair prejudice outweighs its probative value. Id. The judge concluded that severance should be granted because, if each of the two charges had been tried separately, the judge would have excluded the evidence of the other charge under Evidence Rule 403. The judge believed that the State’s case on each separate charge was relatively weak, and he concluded that there was a substantial danger that a jury, after hearing two relatively weak cases, might wrongly weigh the evidence. Id.

Even if Vaska had been a published decision, it would not compel a ruling in Steadman’s favor here. Questions of the admissibility or exclusion of evidence under Evidence Rule 403, as well as questions of the joinder or severance of charges under Criminal Rule 14, are entrusted to the discretion of the trial judge. In Vaska, the trialPage 11
judge exercised that discretion in the defendant’s favor, and we upheld the trial judge’s decision because we concluded that, under the circumstances, the judge’s decision was not an abuse of discretion.

In Steadman’s case, on the other hand, the trial judge’s evidentiary ruling favored the State: the judge ruled (when he denied Steadman’s motion for severance) that if the two burglary / thefts were tried together, the cross-admission of this evidence would not unfairly prejudice Steadman. Applying the same “abuse of discretion” standard of review that we applied in Vaska, we likewise conclude that the judge’s decision in Steadman’s case was not an abuse of discretion.

Aside from his argument about the weakness of the State’s evidence, Steadman’s only other claim of prejudice is based on a statement that a police witness made at his trial.

At Steadman’s trial, Fairbanks Police Officer Pearl Holston testified concerning the course of the investigation of the two burglary / thefts following Steadman’s arrest. Toward the end of her testimony, the prosecutor asked Holston if, based on the items of stolen property recovered, she had pursued any further investigation. Holston replied that she had “recommended that an investigator apply for a couple of search warrants based on previous case involvement reference recovering stolen items.”

The trial judge, Superior Court Judge Mark I. Wood, was unsure whether Holston’s statement might have been a reference to other police investigations of Steadman, so he immediately cautioned Holston (outside the presence of the jury) that she was not to allude to previous contacts between Steadman and the police.

A few moments later, Steadman moved for a mistrial based on Holston’s statement — arguing that the jury was sure to convict him based on speculation about his prior record. Judge Wood denied this motion.Page 12

On appeal, Steadman does not argue that his motion for mistrial should have been granted. Instead, he frames the issue as one of prejudice resulting from joinder. He argues that even though Holston’s statement did not require a mistrial, the statement was particularly prejudicial because all of the charges against Steadman were joined in a single trial, and thus Holston’s statement could have affected the jury’s verdicts on all of the charges.

But when the issue of Holston’s statement arose at trial, and when Steadman’s attorney moved for a mistrial, the defense attorney never suggested that Judge Wood should revisit the question of severance. Thus, in the present appeal, Steadman is essentially arguing that Judge Wood committed plain error by failing to sever the charges suasponte once Holston made her challenged statement.

It is questionable whether Holston’s statement prejudiced Steadman at all. Although the meaning of Holston’s remark was unclear, her reference to “previous case involvement reference recovering stolen items” was not an express accusation against Steadman. Holston’s statement might reasonably be understood as a convoluted way of saying “my previous experience in investigating stolen property cases”.

But in any event, Steadman’s argument on appeal — that Holston’s remark was more prejudicial because all of the charges against Steadman were joined in a single trial — is simply one of the arguments that Steadman might reasonably have made when he asked for a mistrial. It is not pertinent to the issue of joinder and severance because any alleged prejudice stemming from Holston’s remark does not undermine Judge Wood’s earlier decision to allow the charges against Steadman to be litigated in a single trial.

Obviously, when the issue of joinder and severance was litigated and decided, no one knew or could foresee that Holston would make the challenged remark.Page 13
Thus, the fact that Holston later made the challenged remark does not demonstrate that Judge Wood’s earlier decision was wrong at the time.

Moreover, by the time the remark was made, jeopardy had already attached. Thus, it would have been impossible to grant a “severance” that did not involve a mistrial on the severed charges.

Judge Wood considered Steadman’s request for a mistrial, he denied it, and Steadman has not appealed that decision. This being so, Steadman can not attack the judge’s decision under the rubric of “severance”.

For all these reasons, we conclude that Steadman has failed to show that Judge Wood abused his discretion when he denied Steadman’s motion for severance.

Conclusion

The judgement of the superior court is AFFIRMED.

[fn1] The superior court’s judgement mistakenly refers to this conviction as fourth-degree weapons misconduct, although the judgement lists the correct statute: AS 11.61.220(a).

[fn2] See Yearty v. State, 805 P.2d 987, 991 (Alaska App. 1991).

[fn3] See Phillips v. State, 70 P.3d 1128, 1133-34 (Alaska App. 2003) (noting that “[s]everal Alaska cases have upheld joinder of charges when the defendant committed a crime and then assaulted the police officer(s) who attempted to confront or apprehend the defendant for this crime”).

[fn4] Newcomb v. State, 800 P.2d 935, 943 (Alaska App. 1990) (citingCleveland v. State, 538 P.2d 1006, 1008-09 (Alaska 1975)).

[fn5] Id.

[fn6] Stevens, 582 P.2d at 627-28.

[fn7] Sharp v. State, 837 P.2d 718, 725 (Alaska App. 1992).Page 1