Opinion
Court of Appeals No. A-11381 No. 6156
03-18-2015
JAMES LOUIS COVEN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Elizabeth D. Friedman, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal 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. Trial Court No. 3AN-09-1986 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Elizabeth D. Friedman, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge KOSSLER.
James Louis Coven appeals his convictions for first-degree murder, first-degree robbery, evidence tampering, and attempted fourth-degree misconduct involving a controlled substance. Coven claims his convictions should be reversed because the State's firearms expert testified outside the scope of the State's expert witness notice. For the reasons explained here, we conclude that any error was harmless, so we affirm Coven's convictions.
Background
Coven's convictions arose from evidence that he approached a parked pick-up truck in which Christon Lee and Matthew Peterson were sitting. Lee was in the driver's seat and Peterson was in the front passenger seat. From his location on the driver's side of the truck, Coven fired an AK-47 rifle through the partially opened window, hitting Lee fourteen times and Peterson eleven times. Both men died of their wounds.
At Coven's trial, Anchorage Police Officer Derek Sitz testified about what he observed at Lee's autopsy. Without objection, Sitz explained that the whole left side of Lee's face was covered with "stippling." He described stippling as tiny red or darkened dots or abrasions "usually caused by gunshots at close range."
The State's firearms expert, forensic scientist Robert Shem, later testified that stippling refers to small red hemorrhages that result from particles of gunpowder striking a person when the person is "at relatively close range to a firearm when it's discharged." He explained that the presence of stippling typically indicates that the firearm was discharged at a distance of six to eighteen inches.
After Shem gave this testimony, Coven's attorney asked for a sidebar conference and objected to Shem's testimony on the ground that it exceeded the scope of the State's expert witness notice. In response, Superior Court Judge Michael L. Wolverton asked the prosecutor if he was "going to go any further on this?" The prosecutor replied no. When Shem's testimony resumed, the prosecutor asked no further questions in this area.
Analysis
On appeal, Coven claims that Judge Wolverton overruled his objection to Shem's testimony and restricted his counsel's opportunity to seek a remedy for it. Coven argues that Judge Wolverton's failure to take any corrective action with respect to the testimony, or to allow the defense to respond to it, deprived him of a fair trial.
The record does not support Coven's characterization. In response to the defense attorney's objection, Judge Wolverton questioned the prosecutor and determined that no more testimony would be offered on that topic. Coven's attorney did not request additional relief. Coven therefore has not preserved his current claim.
See Hilburn v. State, 765 P.2d 1382, 1388-89 (Alaska App. 1988) (holding that when defense counsel objected to the State's closing argument and the court took action in response to the objection, but defense counsel then did not ask for additional relief, defendant had not preserved claim that the court's actions were inadequate to cure prejudice from the closing argument).
In any case, any error was harmless because we conclude the challenged testimony did not appreciably affect the verdicts.
See Love v. State, 457 P.2d 622, 631-32 (Alaska 1969) (erroneous admission of evidence is harmless if the error did not appreciably affect the jury's verdict).
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As noted earlier, Shem was not the only witness to testify about stippling. Officer Sitz also testified that stippling covered the left side of Lee's face, and he explained that stippling is caused by a firearm discharged at close range. Coven claims that Shem's testimony went beyond Sitz's testimony because Shem told the jury that the stippling indicated a weapon's discharge at a range of six to eighteen inches. He argues that Shem's estimate placed Coven "essentially right on top of" Lee, thus undermining Coven's defense that he lacked the intent to kill necessary for first-degree murder.
But Coven's close proximity to Lee at the time of the shooting had already been established by both the witness testimony and the physical evidence in the case.
Among the witnesses to testify was one of the backseat occupants of the pick-up truck. When asked to describe Coven's location when he started shooting, she testified "he was just right there ... [j]ust like right by the window, like right there." A neighborhood resident who looked out his window after hearing the gunshots testified that he saw a man with a rifle standing close enough to the truck that he "could touch it. I mean, he was standing right next to it." And a second neighborhood resident who looked out his window after he heard gunshots testified that he saw a man who "looked like he was getting out of [the] truck."
The jury also heard testimony that the truck's driver's side door and window had no bullet holes, but that the passenger's side door had numerous bullet holes and its window was shattered. The jury heard that this pattern of bullet holes indicated that the AK-47 was fired from a fairly high position on the driver's side through the partially opened driver's side window. The jury heard that eight shell casings were found inside the truck (including the backseat), and that a shell casing ejects sideways out of an AK-47 when it is fired. This evidence circumstantially showed that the AK-47 was inside or immediately adjacent to the truck when those eight shots were fired.
In his closing argument, Coven's attorney conceded that "the shots were done at close range." But he argued that Coven lacked the culpable mental state for first-degree murder because he had reflexively reacted to movements by Peterson and Lee, a person who had threatened Coven in the past.
We conclude that Shem's challenged testimony did not appreciably affect the verdicts in this case.
Conclusion
We AFFIRM the superior court's judgment.
However, we note that the written judgment does not accurately reflect the specific convictions on which the superior court orally imposed sentence in Coven's case. That is, the written judgment should reflect only those convictions on which the superior court orally pronounced sentence, as well as the correct sentences on those convictions. We direct the superior court to correct these errors so that the written judgment accords with the court's oral pronouncements.