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finding that the explicit acquiescence by two defense lawyers to several questions to be posed by the judge to the defendant was tactical and precluded a finding of plain error
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Court of Appeals No. A-11490 No. 6348
06-08-2016
LENARD LOUIS JOHNSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. 3PA-11-3290 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge. Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Lenard Louis Johnson was convicted of eight counts of first-degree sexual abuse of a minor for sexually abusing his stepdaughter and his granddaughter. On appeal, Johnson claims that the trial court erred in allowing four of the questions the jury posed to him at the close of his testimony. He contends that the questions were improper and deprived him of a fair trial. But as we explain below, Johnson's express waiver of an objection precludes a finding of plain error in this case.
Johnson also challenges his sentence of 60 years' imprisonment with 10 years suspended (50 years to serve), arguing that the trial court was not justified in imposing a composite term in excess of the maximum term for his most serious offense. The State points out that the trial court imposed an illegal sentence on one count. We agree with the State but otherwise find no error in the sentence.
Finally, Johnson challenges twelve of his probation conditions. For the reasons explained below, we vacate Johnson's probation conditions and remand for further proceedings.
Factual background
Johnson was indicted on twelve counts of first-degree sexual abuse of a minor and ten counts of second-degree sexual abuse of a minor based on allegations that he sexually abused three girls—his two stepdaughters, and the elder stepdaughter's seven-year-old daughter. The allegations came to light in June 2011 when the seven-year old told the owner of her daycare that she had sex with her grandfather, Johnson.
AS 11.41.434(a).
AS 11.41.436(a).
During a subsequent investigation by law enforcement, the two adult stepdaughters came forward with allegations that Johnson had also sexually abused them between 1998 and 2001, when they were teenagers. The elder of the two agreed to participate in a surreptitiously recorded conversation with Johnson pursuant to a Glass warrant.
See State v. Glass, 583 P.2d 872 (Alaska 1978).
During this conversation, the stepdaughter detailed one instance of abuse that occurred while she was watching bats fly outside their window. Johnson corrected her and explained that the abuse had instead occurred while they watched a movie. Johnson admitted to abusing her and her daughter, but he denied abusing her sister.
Before trial, Johnson successfully moved for dismissal of the four counts of sexual abuse related to his younger stepdaughter on speedy trial grounds. Johnson proceeded to trial on the remaining counts and testified at his trial. He admitted that he occasionally had his elder stepdaughter lie on top of him and that he had once accidentally touched her breasts while they were watching a movie. But he denied sexually abusing all three victims. Johnson explained that he had falsely confessed during his recorded conversation with the elder stepdaughter because he believed it would help her and her daughter feel better.
At the close of Johnson's testimony, Superior Court Judge Kari Kristiansen allowed the jury to submit additional questions for Johnson — a practice she followed with each testifying witness. The judge then held a bench conference to permit the parties to object to the form or content of the jury's proposed questions. Although they agreed with one of the prosecutor's objections, Johnson's defense attorneys did not object to any of the questions. The judge then read some of the questions to Johnson. After Johnson answered these questions, the judge provided both parties an opportunity to further examine him.
The jury acquitted Johnson of two counts of first-degree sexual abuse of a minor, but it found him guilty of the remaining sixteen counts. Judge Kristiansen merged the eight second-degree sexual abuse convictions into the first-degree sexual abuse convictions and imposed a composite sentence of 60 years' incarceration with 10 years suspended (50 years to serve). This appeal followed.
Why we affirm Johnson's convictions
On appeal, Johnson challenges four of the questions submitted by the jury, arguing that they sought irrelevant information and that they broadcast to the jury that at least one juror had reached conclusions about Johnson's guilt. Specifically, Johnson challenges the following questions:
Do you really believe it was healthier for [the stepdaughter's daughter] to believe you molested her than for her to get help if she was just making things up?
Do you find it to be normal to have little girls lay on top of you while you are laying?
Do you find it odd to be laying that close to a teen while watching TV to where your hand can be on her breast?
If and when you apologized to [the elder stepdaughter] you were just agreeing with her to make her feel better, why did you correct her about the circumstances saying that the two of you were not watching bats, you were watching a movie when you molested her?
Our prior cases have approved of the practice of allowing jurors to submit questions to a witness, so long as certain procedural safeguards are followed. But we have also explained that a judge may not allow questions that signal to the jury that one juror has rejected the defendant's version of the offense and formed the opinion that the defendant is guilty. Johnson argues that the four questions transgressed that standard.
See Landt v. State, 87 P.3d 73, 78-79 (Alaska App. 2004).
Barr v. State, 320 P.3d 816, 819 (Alaska App. 2014).
But because Johnson's attorneys stated that they had no objection to the questions, Johnson must establish that the court committed plain error. The standard for plain error is:
(1) there must be error, and the error must not have been the result of an intelligent waiver or a tactical decision not to object; (2) the error must be obvious, meaning that it should have been apparent to any competent judge or lawyer; (3) the error must affect substantial rights, meaning that it must pertain to the fundamental fairness of the proceeding; and (4) the error must be prejudicial.Johnson must show that the error involved "such egregious conduct as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice."
Adams v. State, 261 P.3d 758, 773 (Alaska 2011).
Charles v. State, 326 P.3d 978, 987 (Alaska 2014) (quoting Adams, 261 P.3d at 764).
The State argues that Johnson is foreclosed from asserting plain error because he made a tactical decision not to object. According to the State, when determining whether an error was the result of a tactical decision, a distinction may be drawn between an attorney's inaction, for which no presumption of tactics is appropriate, and an attorney's action. The State asserts that this case involves the defense attorneys' affirmative action — the attorneys' announcement that they did not object to the proposed questions — and, therefore, a tactical decision.
In recent years, our supreme court has issued two opinions clarifying the tactical decision prong of the plain error analysis. First, in Moreno v. State, the court explained that a conclusion that counsel's failure to object to an error was tactical must not be inferred lightly on a silent or ambiguous record. The court concluded that a tactical decision must not be inferred "[w]ithout an affirmative act by counsel indicating his awareness of the existence of a known right and some indication in the record of a conscious failure to preserve the issue."
Moreno v. State, 341 P.3d 1134, 1145-46 (Alaska 2015).
Id. at 1144.
And in Goldsbury v. State, the supreme court reiterated that "[w]hether [a] defendant made a tactical decision not to object or intelligently waived an opportunity to object must be plainly obvious from the face of the record, not presumed in the face of a silent or ambiguous record." The court also explained that the appellant does not bear the burden of demonstrating that his failure to object below was not tactical.
Goldsbury v. State, 342 P.3d 834, 838 (Alaska 2015) (quoting Moreno, 341 P.3d at 1146).
Id.
With this guidance in mind, we turn to the present case. On the specific facts presented here, we conclude that the State has met its burden of demonstrating that Johnson's attorneys made an affirmative tactical decision not to object, thus precluding Johnson from establishing plain error.
As noted above, at the close of Johnson's testimony, the judge allowed the jury to submit proposed questions in writing. The judge then held a bench conference in which the parties were provided an opportunity to discuss the propriety of the questions.
The prosecutor objected to two questions (it is unclear from the record whether either of these questions is at issue in this appeal). In response, defense counsel affirmatively argued that the questions were permissible. Over the prosecutor's objection, the judge allowed the questions.
The court then asked the parties if they had any objections to the other questions. One of Johnson's attorneys responded, "I don't think so." Johnson's second attorney responded, "No ... I think they were all fine." The prosecutor objected to a third question, and defense counsel agreed. The court concluded that the question was impermissible and declined to read it.
Judge Kristiansen then read ten jury questions to Johnson, including the four at issue in this appeal. The judge asked the parties if they wished to ask Johnson any follow-up questions, but both parties declined.
On these facts, we find the State has met its burden of demonstrating that the actions of the defense attorneys preclude a finding of plain error. Counsel were provided an opportunity to object to the questions. Both defense attorneys explicitly acquiesced to the ruling now at issue in this appeal. The record thus demonstrates that Johnson's attorneys made a tactical decision to let Johnson respond to the jury's questions. We accordingly conclude that the trial court did not commit plain error.
See Moreno, 341 P.3d at 1143.
Nor does Johnson's case present an instance where his attorneys' choice was so clearly incompetent that we would be compelled to intervene, even though the defense attorneys made a tactical decision to allow Johnson to answer the jurors' questions. Johnson's defense hinged on the jury crediting his trial testimony (his explanations of his interactions with the victims, and his explanations of his statements during the taped conversation). Although the jurors' questions expressed skepticism of Johnson's explanations, his attorneys could reasonably have concluded that it made sense for Johnson to try to answer those questions — thus giving him one more opportunity to address the skeptical jurors and perhaps to convince them that his account raised a reasonable doubt as to his guilt.
For these reasons, we reject Johnson's claim of error.
Why we reject Johnson's challenge to his sentence
Johnson also challenges his sentence (60 years with 10 years suspended) arguing that the trial court erred in imposing a composite sentence in excess of the maximum presumptive sentence for his most serious offense. (The presumptive range for a first conviction for first-degree sexual abuse of a minor is 25 to 30 years, see AS 12.55.125(i)(1)(A)(i).) Johnson's argument is derived from this Court's holding in Farmer v. State, where we explained that
Johnson's sexual abuse of his elder stepdaughter pre-dated the 2005 criminal code revision; his abuse of the seven-year old post-dated it. This configuration actually gave rise to a mandatory minimum composite sentence of slightly more than 32.5 years.
[w]hen an offender is convicted of multiple crimes, the presumptive term for the most serious crime remains an important benchmark — a benchmark that is not to be exceeded without good reason. ... [T]he appropriate focus is no longer on the narrow issue of public danger, but rather on whether a composite sentence exceeding the presumptive term is warranted under the totality of the circumstances.It is unclear whether this Farmer benchmark applies to post-2005 sentences. But even assuming Farmer applies, we conclude that Johnson's sentence of 60 years' incarceration with 10 years suspended was justifiable.
Farmer v. State, 746 P.2d 1300, 1301-02 (Alaska App. 1987).
See Kosbruk v. State, 2011 WL 1330805, at *3 (Alaska App. Apr. 6, 2011) (unpublished).
Johnson stipulated to statutory aggravator AS 12.55.155(c)(18)(E)—that he was "10 or more years older than the victim." We have previously held that the presence of a statutory aggravator provides sufficient "good reason" for a sentence in excess of the Farmer benchmark. We have also explained that a sentencing judge may find good reason to impose a sentence in excess of the Farmer benchmark when a defendant is convicted of multiple counts involving discrete criminal episodes — a second factor present in this case. We accordingly conclude that the trial court did not err in imposing a composite sentence in excess of the Farmer benchmark.
See Smith v. State, 187 P.3d 511, 528 (Alaska App. 2008) (citing Randall v. State, 44 P.3d 984, 985 (Alaska App. 2002)).
See id.
But the State points out a separate problem with Johnson's sentence. The judge imposed a sentence of 25 years' imprisonment with 5 years suspended for Johnson's conviction on Count 20 for first-degree sexual abuse of a minor. This sentence fell below the presumptive range of 25 to 35 years and is therefore illegal, because Johnson did not prove any mitigating factors.
AS 12.55.125(i)(1)(A)(i).
We accordingly vacate Johnson's sentence on Count 20 and direct the sentencing judge to impose a legal sentence on that count that does not increase Johnson's existing composite sentence.
See Twogood v. State, 196 P.3d 1109, 1114 (Alaska App. 2008). --------
Why we direct the superior court to reconsider Johnson's probation conditions
Johnson also challenges a number of his probation conditions, arguing that they are not reasonably related to his rehabilitation and are impermissibly overbroad or vague. At the time of Johnson's sentencing, the trial court did not have the benefit of our recent opinions in Beasley v. State, 364 P.3d 1130 (Alaska App. 2015), Smith v. State, 349 P.3d 1087 (Alaska App. 2015), and Diorec v. State, 295 P.3d 409 (Alaska App. 2013). We therefore vacate and remand Johnson's probation conditions for reconsideration consistent with those opinions.
Conclusion
We AFFIRM Johnson's convictions. We AFFIRM Johnson's composite sentence of 60 years' imprisonment with 10 years suspended, but we VACATE his sentence on Count 20 and REMAND for resentencing consistent with this opinion. We also VACATE Johnson's probation conditions and direct the superior court to reconsider them within sixty days. If Johnson then objects to any imposed condition, he may file a supplemental brief within thirty days of the judge's order regarding the conditions of probation, and the State may respond thirty days thereafter. We retain jurisdiction of this case.