Opinion
A-13219 A-13225 7086
01-03-2024
WILSON BEAVER, Appellant, v. STATE OF ALASKA, Appellee. CARL KONIG, Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency and Samantha Cherot, Public Defender, Anchorage, for Appellant Beaver. Marilyn J. Kamm, Attorney at Law, Anchorage, and Margot Knuth, Attorney at Law, La Conner, Washington, under contract with the Office of Public Advocacy, for Appellant Konig. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Trial Court Nos. 4BE-17-00586 CR, 4BE-17-00587 CR Bethel, Dwayne W. McConnell, Judge.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency and Samantha Cherot, Public Defender, Anchorage, for Appellant Beaver.
Marilyn J. Kamm, Attorney at Law, Anchorage, and Margot Knuth, Attorney at Law, La Conner, Washington, under contract with the Office of Public Advocacy, for Appellant Konig. Michal Stryszak, Assistant
Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
HARBISON, JUDGE
Wilson Beaver and Carl Konig were convicted, following a jury trial, of second-degree escape. The convictions were based on an incident at the Yukon Kuskokwim Correctional Center (YKCC), where the two men were held in presentencing detention (Beaver) and pretrial detention (Konig). During a routine prisoner count, YKCC correctional officers discovered that Beaver and Konig were missing from the facility. The following day, the men were located a short distance from the facility and arrested for escape. They were indicted as co-defendants and the matter proceeded to a jury trial. The jury found both men guilty of second-degree escape.
AS 11.56.310(a)(1)(B).
On appeal, Beaver and Konig both contend that the prosecutor's closing argument misstated the law, requiring reversal of their convictions. Because they are raising the same plain error argument, we have consolidated their cases for decision. Beaver also raises an additional contention - that the State relied on two separate theories of prosecution - and he raises two claims of error relating to this contention: that there was insufficient evidence of one of the theories, and that the trial court erred when it failed to instruct the jury that it must be unanimous as to the specific conduct constituting the offense.
For the reasons explained here, we reject these claims.
Factual and procedural background
At trial, the State argued that Konig and Beaver executed a planned escape from YKCC. According to the State, the men accessed a narrow utility passage that began behind a urinal in one of the facility's bathrooms and led to the basement. From the basement, they exited the building through a storm grate and then crawled under the perimeter fence.
In support of this theory, the State had several correctional officers testify about the night of the incident at YKCC. After the 2:00 a.m. institutional count indicated that two people were unaccounted for, a facility-wide search and a review of security camera footage ensued. During the search, officers discovered the utility passage behind the urinal and broken hinges on the storm grate. The review of security camera footage showed that around 11:30 p.m., six to eight people walked to the bathroom area, but two fewer people returned from the bathroom. After conducting another institutional count with photographs, the officers were able to ascertain that the two people unaccounted for were Beaver and Konig. The State also introduced photographs of the storm grate and its damaged hinges, evidence of tools used to navigate the utility passage, and a photo of a bent piece of steel, allegedly used to get the nuts and bolts off of the urinal to remove it from the wall.
Additionally, a person formerly incarcerated at YKCC testified that he had been employed there as a maintenance worker and had done plumbing work around the urinal suspected of being the entry point for the escape route. This witness testified that he had some familiarity with the layout of the dorm in which Konig and Beaver were housed. According to the witness, during a telephone conversation he had with Beaver while Beaver was incarcerated at YKCC, Beaver asked him for information about what was behind the urinals. The jury also heard that Beaver wrote a letter while he was in custody referring to his "escape" from YKCC.
Beaver and Konig did not testify at trial. In their defense, however, their attorneys argued that the State's theory of escape was overly complicated and improbable. The attorneys argued that the jury should reject this improbable version of events in favor of a simpler explanation: that YKCC, which was disorganized and in a state of disrepair, had accidentally released the two men based on a booking error.
In support of their accidental release theory, the defense attorneys elicited testimony from various correctional officers that people were sometimes mistakenly released from custody. The defense attorneys also elicited testimony that Beaver and Konig were wearing street clothes when they were apprehended.
On appeal, Konig's appellate attorney asserts that the men were in the same clothes they were wearing when they were booked into YKCC. But there is nothing in the record to support this assertion, and nobody argued this was true at trial. What was discussed at trial was the fact that the men's personal belongings were missing from booking. The State's witnesses testified that the belongings may have been accidentally destroyed as abandoned property.
In response, the prosecutor elicited testimony from the correctional officers who would have been in charge of releasing Beaver and Konig if the accidental release theory were true. The correctional officers were adamant that YKCC had only one secure exit through which a person could be released and that there was no record of Beaver or Konig being released that night. Additionally, the prosecutor elicited testimony that the two men appeared to be hiding in the bushes when they were apprehended outside the prison, and that Beaver tried to flee when the police arrived - actions that were inconsistent with Beaver and Konig's theory of accidental release.
Prior to closing arguments, the prosecutor moved for a protective order seeking to prohibit the defendants from arguing that they were not guilty of escape if they were accidentally released. The trial court denied this request, ruling that the question of whether a defendant who is accidentally released is guilty of escape depends on whether the defendant "recklessly disregarded whether they were without lawful authority to remove themselves from the correctional facility."
(We note that neither this Court nor the Alaska Supreme Court have directly addressed the circumstances under which an accidental release could constitute an escape, but several other jurisdictions have held, as did the trial court in this case, that a defendant may be guilty of escape after being released accidentally if the defendant knows the release is unlawful. On appeal, the defendants do not challenge the trial court's ruling that, depending on their mens rea, a defendant who is accidentally released could still be guilty of escape, and we therefore need not resolve the parameters of the defense in this decision.)
See, e.g., People v. Weiseman, 21 N.E.2d 362, 365 (N.Y. 1939) (holding that if the defendant knew that the officials had released him after mistaking him for another prisoner who the facility intended to release, the defendant was guilty of escape, but if the defendant did not know this, he was entitled to assume that the officials who discharged him did so legitimately); Bridges v. State, 568 S.E.2d 574, 576-77 (Ga.App. 2002) (holding that criminal intent to escape could be inferred, despite accidental release, because defendant had just begun an 8-year sentence, and he provided bondsmen with "inaccurate information" about his anticipated residence and employment).
During closing argument, both defense attorneys argued that the men were not guilty of escape because they had been accidentally released. Konig's attorney made the following remarks:
Because YKCC accidentally released [Beaver] and [Konig], they did not escape. They did not remove themselves from official detention, and they did not recklessly disregard whether they were without lawful authority to leave YKCC. Given the fact that they did not remove themselves from YKCC because they were accidentally released - something that you heard happens. This isn't some sort of joke, this does happen. You heard the testimony that people are accidentally released. Because they were accidentally released, they did not escape. Therefore, I'm confident you'll find [Konig] and [Beaver] not guilty of escape.
Similarly, Beaver's attorney stated the following during his closing argument:
You may feel that somebody accidentally released ought to raise their hand and say, no, no, don't let me out of the jail.
But if instead they hang around outside the jail, that may be all kinds of wrong, but it ain't no escape. Remember the fish? You put the fish back in the hole, it has not escaped.
Ladies and gentlemen, after you look at this evidence, consider these many, many photographs of the facility, listen to and hear whatever you want and say your piece, in the end, I am confident you will find [Beaver] and [Konig] not guilty of escape.
In response, the prosecutor began his rebuttal argument as follows:
Let's first be really clear, because what [Beaver's attorney] just used as an example is actually clearly escape. If you know that you're being held in jail lawfully - and this is not how the state theorized that this case happened, but if you know that you're being held in the jail lawfully, even if a [corrections officer] opens the door and says go on out, that is still escape. That's still an escape under the law because you are removing yourself. You're supposed to be in official detention for a felony, and you're recklessly disregarding whether you're in detention for that felony. So let's just be really clear now, that's still escape. Accidental release is not, it's not a legally valid defense to escape.Neither defense attorney objected to the prosecutor's statements.
The prosecutor then went on to catalogue all the evidence that supported the State's theory of escape, contrasting it with the lack of evidence for any accidental release theory:
With no evidence, they're asking you to believe that somebody unlock[ed] that door - remember, everything's written down, you can look at how thorough those logs are - that somehow these six correctional officers that were working at the prison, they all worked together and they conspired to say, oh, we're not going to report this accidental release. ....
It's unreasonable for you to think that this is accidental release from a secure correctional facility because it wasn't. The evidence shows that they went into that utility corridor,
they knocked all of the debris loose, they lit a fire with the pencil and the tissue, they got an apple, used it as a candle in that cup, and they crawled their way out of YKCC. At the end of the day, that is the only explanation and you will not have any reasonable doubt that Mr. Konig and Mr. Beaver are guilty of escape in the second degree.
Following deliberations, the jury convicted both men of second-degree escape.
This appeal followed.
Why we conclude that the prosecutor's closing argument does not require reversal of the convictions in this case
On appeal, Beaver and Konig both contend that the prosecutor's statement that "accidental release is not . . . a legally valid defense" was a misstatement of law that was tantamount to an assertion that escape is a strict liability crime.
In response, the State asserts that, in context, it is clear the prosecutor was not claiming that accidental release is never a defense to escape but rather was arguing (consistent with the trial court's ruling on the protective order) that accidental release is not a defense to escape when the defendant knows that there has been a mistake and knows that the release is not lawful.
We agree that the prosecutor's statement must be viewed in context. But we are nevertheless troubled by the seemingly categorical nature of the statement "accidental release is not . . . a legally valid defense." We caution prosecutors to be mindful of their statements in closing argument, particularly their statements in rebuttal, and to avoid suggesting in any manner that the defendant's defense is not a legally valid one. To the extent a prosecutor believes the defense being raised is not a legally valid defense, the prosecutor should litigate the issue openly through a motion for a protective order so the court can rule on what constitutes a legal defense in that case (as the prosecutor did here). Courts should also take care to ensure that the legal framework for the parties' closing arguments is clear and the parties are not arguing competing interpretations of the law.
See Kinmon v. State, 451 P.3d 392, 399 (Alaska App. 2019) (explaining that the district court had a duty to resolve questions of statutory interpretation rather than allowing the parties to argue their opposing views of the law).
That said, we do not believe that reversal is necessary here. Although the statement "accidental release is not . . . a legally valid defense" could be understood out of context as suggesting that accidental release is never a legal defense to escape charges, the defense attorneys apparently did not view the statement that way because neither defense attorney objected to the statement. Further evidence that the prosecutor did not mean accidental release is never a defense (and that it is unlikely the jury would have viewed him as saying so) is provided by the remainder of the prosecutor's rebuttal argument, which was dedicated to cataloguing all the evidence that supported the State's tunnel theory of escape and pointing out the complete lack of evidence that supported the defendants' accidental release theory. Given this larger context, there is little reason to believe that the jury would have viewed the prosecutor as categorically declaring that accidental release was not a defense. Instead, it seems likely that the jury understood the prosecutor as acknowledging that accidental release could be a defense under certain circumstances, but that there was no evidentiary support for the defendants' theory of accidental release in this case.
Because neither Beaver nor Konig objected to the prosecutor's closing argument, they are entitled to relief only if they can show plain error on appeal. An error is considered plain error only if it "(1) was not the result of intelligent waiver or a tactical decision not to object, (2) was obvious, (3) affected substantial rights, and (4) was prejudicial." Thus, to obtain relief, Beaver and Konig must show that the trial court's failure to sua sponte intervene to clarify the prosecutor's alleged misstatement of the law was obvious error that impacted the outcome of the trial.
Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
Id. at 772 ("One of the underlying principles of the plain error doctrine is that the error must have been so obvious that the trial court should have noticed it despite the absence of any objection.").
Because the prosecutor's challenged statement, in context, was consistent with the trial court's prior ruling that accidental release was a defense under certain circumstances and because the challenged statement was only a brief part of an otherwise unobjectionable closing argument, we conclude that Beaver and Konig have failed to establish that the challenged statement was obvious error that impacted the outcome of the trial.
Why we reject Beaver's remaining claims
Beaver raises two other claims of error. Both claims are based on his contention that the State relied on what Beaver calls "two independent (and mutually exclusive)" theories of prosecution. According to Beaver, the State's theories of prosecution were (1) that the men escaped through the utility passage behind the urinal and (2) that the men walked away after being accidentally released.
Relying on this contention, Beaver first argues that his conviction should be reversed because there was insufficient evidence presented at trial to support the prosecution's second theory of accidental release. But the record is clear that the State never relied on this theory. To the contrary, the State actively disputed the defense's theory of accidental release and repeatedly pointed out that no evidence supported that theory. Contrary to Beaver's contention on appeal, the State was not required to prove beyond a reasonable doubt an independent theory of guilt that it did not rely upon and on which it presented no evidence.
Beaver also argues that his conviction should be reversed because the trial court failed to instruct the jury that it had to be unanimous as to the specific conduct constituting the offense. But, as already explained, the record shows that the State charged Beaver with escape under the theory that he surreptitiously left YKCC by traveling through the utility passage behind the urinal. Although Beaver disputed the prosecution's theory of the case by offering an alternate version of events, the prosecutor repeatedly stated during his closing argument that he was not positing that the two men were accidentally released, and that such an inference from the evidence would be "unreasonable." Thus, even assuming that a factual unanimity instruction is needed in a case where the person is prosecuted for escape under two different theories (an issue we need not decide), there was no need for such an instruction in this case.
Conclusion
For the reasons explained here, the judgments of the superior court are AFFIRMED.