Opinion
Court of Appeals No. A-10363.
September 1, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Patrick J. McKay, Judge, Trial Court No. 3AN-07-7314 CR.
Paul Malin, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Diane Pickens was convicted of three counts of second-degree forgery. Pickens appeals, arguing that the trial court erred in failing to grant her motion for a new trial. We affirm Pickens's conviction. Pickens also points out that the superior court erred in restricting her eligibility for discretionary parole in its written judgment. Pickens's judgment should be modified to match the oral imposition of judgment.
AS 11.46.505(a)(1).
Factual and procedural background
Superior Court Judge Patrick McKay presided over Pickens's trial. At trial, the State alleged that Pickens took three checks belonging to her former boyfriend, Juan Pena, and attempted to cash them. Pena was a key witness for the prosecution. He testified that he had not signed the checks at issue in the case and had not authorized anyone to sign his name. The checks were made out to Diane Pickens and purported to have Pena's signature on the bottom of the check.
In his trial testimony, Pena acknowledged that he had written a letter to the State attempting to stop the State from prosecuting Pickens. In that letter, he indicated that he was "recant[ing] my statement in the case of . . . Diane . . . Pickens." He offered to pay restitution to the bank. He testified that he wrote the letter because he had strong feelings for Pickens and her grandchildren. He indicated that he wrote the letter after Pickens had made repeated requests of him to write the letter and that she had promised to pay him back. He stated that Pickens told him that she was facing "an extraordinary amount of time and that she didn't deserve it." Pena acknowledged that, at the time of trial, Pickens was engaged to another man, and that he was unhappy about that fact. In addition, Pickens had obtained domestic violence protective orders against Pena.
In her defense case, Pickens argued that Pena's testimony was not credible. The defense argued that Pena wanted to prevent Pickens from marrying someone else, that he was biased because she had not kept her promises to him, and he was angry because she had obtained restraining orders against him. Pickens's attorney told the jury that her accuser, Pena, plotted "to put Diane Pickens in a cell for as long as possible. If he couldn't have her, then no one could."
The jury convicted Pickens on all three of the forgery charges. Pickens was a third felony offender and was subject to a presumptive term of 3 to 5 years of imprisonment on each conviction. At sentencing, Pena asked for leniency for Pickens. He stated that he had testified at Pickens's trial because he was under the impression from his conversation with the prosecutors that Pickens would not be treated severely. He stated, "If anybody had told me the amount of time that was involved in this, I would have never testified." Judge McKay sentenced Pickens to a composite sentence of 6 years of imprisonment.
Based on Pena's testimony at the sentencing hearing, Pickens moved for a new trial. She argued that if the prosecutors induced Pena to testify as a government witness by leading him to believe that the State would seek a lenient sentence for Pickens, this was exculpatory evidence that should have been disclosed under Brady v. Maryland. She claimed that the State had committed discovery violations by failing to disclose the conversations with prosecutors that Pena described, and also that Pena's statements at sentencing constituted grounds for a new trial based on newly discovered evidence under Alaska Criminal Rule 33.
373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 215 (1963).
Judge McKay conducted an evidentiary hearing. Pena and one of the prosecutors who met with Pena and helped to prosecute Pickens's case testified at the hearing. At the conclusion of the hearing, Judge McKay denied Pickens's motion. He concluded (1) that the State had not, in fact, promised Pena that they would seek a lenient sentence for Pickens; (2) that even if Pena erroneously believed that the State had committed itself to seeking a lenient sentence in the event that Pickens was convicted, this belief would not have motivated Pena to testify falsely or to misrepresent the facts of the case; and (3) that, in any event, the jury would not have reached a different verdict even if they had known that Pena mistakenly believed that the State would ask for a lenient sentence in the event that Pickens was convicted.
Pickens appeals, arguing that Judge McKay erred in concluding that there was no Brady violation and that Judge McKay abused his discretion in failing to grant a new trial. We affirm Judge McKay's decision.
Why we uphold Judge McKay's decision Brady requires the prosecution to disclose to the defendant information which tends to negate the defendant's guilt. Pickens contends that Pena's understanding from his conversations with the prosecutors that Pickens would receive leniency was critical information under Brady. She argues that because she did not have this information, she did not have a fair trial. She argues that it was important for the jury to hear that Pena's testimony was motivated, in part, by his expectation that the State would seek leniency for her at sentencing.
Brady v. Maryland, 373 U.S. at 87; see also Nicholson v. State, 570 P.2d 1058, 1060-61 (Alaska 1977) (citing Scott v. State, 519 P.2d 774, 778 (Alaska 1974)).
Pickens recognizes that most cases involving leniency assurances discoverable under Brady entail assurances made directly to the prosecution witness, not to a person the prosecution witness cares for. But Pickens argues that "[t]here is no meaningful distinction between leniency to the witness himself and to someone the government witness cares for." Pickens relies on United States v. Burroughs. In Burroughs, the key prosecution witness was subject to impeachment for bias because the government granted immunity to his wife on an unrelated charge. Burroughs supports the contention that a witness can be biased by government promises of lenient treatment for someone the witness cares about. In Burroughs, the witness was potentially motivated to testify falsely against the defendant (Burroughs) because, by giving testimony that favored the government, the witness presumably would ensure that the government honored its promise to grant immunity to the witness's wife.
830 F.2d 1574 (11th Cir. 1987).
Burroughs, 830 F.2d at 1578.
Id.
But Pena, the witness in this case, was in a substantially different position. His emotional attachment was not to a third party, but rather to the defendant herself. Even though Pena was the victim of Pickens's crimes, he still harbored strong feelings for Pickens. As we have described, and as Pena admitted on the stand at Pickens's trial, he tried to convince the State to drop its prosecution of Pickens by offering to pay restitution to the bank for the forged checks. In these circumstances, as Judge McKay found, it was implausible to suggest that Pena would falsely accuse Pickens, or knowingly shade his testimony in the government's favor, so that Pickens could receive a lenient sentence after being convicted. This supports Judge McKay's finding that any understanding Pena may have had that Pickens would receive leniency would not have motivated him to testify falsely.
In addition, Judge McKay found that the prosecutors had not promised Pena that they would seek leniency for Pickens. The judge recognized that Pena (because of his feelings for Pickens) may have subjectively thought that the prosecutors would seek a lenient sentence if Pickens was convicted. Thus, Judge McKay was required to determine whether Pena's subjective, false impression that the prosecutors would seek a lenient sentence if Pickens was convicted was the kind of information that had to be disclosed under Brady, and was significant enough to justify a new trial.
To establish that the State had committed a discovery violation, Pickens was required to show, not just that Pena may have subjectively believed that the prosecutors would seek leniency for Pickens, but that the prosecutors actively engaged in conduct which would engender this belief and thus create an objective inducement for Pena's testimony. Moreover, to obtain a new trial based on this evidence, Pickens was required to show that this evidence would probably produce an acquittal.
See Bell v. Bell, 512 F.3d 223, 233 (6th Cir. 2008) ("a witness's expectation of a future benefit is not determinative of the question of whether a tacit agreement subject to disclosure existed"); St. Clair v. Commonwealth, 140 S.W.3d 510, 541 (Ky. 2004) (finding no Brady violation in failure to disclose "an agreement, deal, or understanding that, from all indications, did not exist"); Gollehon v. State, 986 P.2d 395, 398 (Mont. 1999); Commonwealth v. Daughtry, 627 N.E.2d 928, 934 (Mass. 1994).
See Salinas v. State, 373 P.2d 512, 514 (Alaska 1962).
Based on the testimony produced at the evidentiary hearing, Judge McKay concluded that Pickens had failed to meet these tests. He concluded that there was, in fact, no agreement between the prosecutors and Pena concerning whether the State would seek lenient treatment for Pickens in the event that she was convicted. In particular, Judge McKay found:
Pena's . . . continued feelings for Pickens . . . illustrated the difficulty of his decision to testify against [her]. Pena's sympathy toward Pickens likely influenced him to hear what he wanted to hear [during his conversations with the prosecutors] regarding the State's intention [with respect to] the sentence it would seek following trial.
As we noted before, Judge McKay concluded that, regardless of how Pena may have perceived his conversation with the prosecutors, nothing that was said during this conversation motivated Pena to testify untruthfully. The judge declared that, even if Pena subjectively believed that the prosecutors would seek lenient treatment for Pickens in the event that she was convicted, this "does not undermine the State's case in any new or significant way" — and, thus, a new trial was not warranted.
Having reviewed the record, we conclude that it supports Judge McKay's findings of fact, and we further conclude (based on those findings) that Judge McKay properly denied Pickens's request for a new trial.
Pickens's written judgment should be modified to match the oral imposition of judgment
Pickens points out that Judge McKay made an error in entering the written judgment in this case. The judgment purports to restrict Pickens's eligibility for discretionary parole. The State agrees that this was a mistake because Judge McKay, in his sentencing remarks, did not restrict Pickens's eligibility for parole. When this case is returned to the superior court, the court should correct the judgment to eliminate the restriction on Pickens's eligibility for discretionary parole. Conclusion
Shagloak v. State, 582 P.2d 1034, 1037-38 (Alaska 1978) (extending the time for when the defendant is eligible for parole after a sentence has been meaningfully imposed violates double jeopardy); Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (appellate court must review State's confession of error).
The judgment of the superior court is AFFIRMED, with the exception that the written judgment must be amended as described in the preceding paragraph.