Opinion
Court of Appeals No. A-11092 No. 6153
03-04-2015
SHAWN A. JUSTICE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Marjorie Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and 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. 4FA-10-791 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael P. McConahy, Judge. Appearances: Marjorie Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury convicted Shawn A. Justice of eight counts of second-degree sexual abuse of a minor. During his trial, a juror told the superior court that a security guard in the courthouse had made improper comments to him, urging him to find Justice guilty. Justice argues that the superior court committed plain error by failing, in the absence of any defense request, to determine whether other jurors had been tainted by the guard's comments. We find no plain error.
Justice also argues that the superior court abused its discretion by denying his motion for a mistrial after one of the State's witnesses referenced possible uncharged sexual misconduct by Justice that the court had not admitted. We conclude that the court did not abuse its discretion by denying Justice's motion for a mistrial on this basis.
We affirm Justice's convictions.
Facts and proceedings
Justice was a pastor at a church in Fairbanks that fourteen-year-old M.P. and her family attended. Justice and M.P. began communicating with each other outside of church through e-mail and text messages, and Justice began asking M.P. questions that were sexual in nature. M.P. eventually sneaked out of her house early in the morning on numerous occasions and rode her bike to Justice's house, where she and Justice engaged in sexual activity. Based on this conduct, the State charged Justice with twelve counts of sexual abuse of a minor in the second degree.
On the fourth day of Justice's trial, a juror asked to speak with the court. Superior Court Judge Michael P. McConahy summoned the juror into the courtroom, where the juror told the court and the parties that on the previous trial day a security guard in the courthouse had approached him in the lobby and told him to "send the guy to jail." The juror told the guard that he could not talk about the case; the guard responded by saying "anybody that uses the excuse 'well I didn't know she was fourteen' ... they're guilty on my part."
The court asked the juror if anything the guard said would influence him. The juror replied that the comments would "absolutely not" influence him and that he thought the guard's behavior was inappropriate and unprofessional. The court then asked the parties for input on how to address the guard's contact with the juror. The State told the court that the juror "did everything right" and that the contact had not caused any bias. Justice's attorney agreed that "the way the juror handled it was excellent." The defense attorney told the court that it "just need[ed] to use its administrative powers" to prevent further improper contact. The judge told the parties that he would contact the appropriate authorities to ensure "there's no more incident[s] like this ever."
Justice then told the court that a guard had been making comments to him as well. Justice described the guard, and the judge left to address the issue. When he returned, the judge stated that a court administrator would contact security and report back to him later that day. The judge stated that the conduct was "just not acceptable and [he would] deal with it." The parties did not mention the issue again.
The jury convicted Justice of eight counts of second-degree sexual abuse of a minor, acquitted him of one count, and was unable to reach verdicts on the remaining three counts. Justice appeals his convictions.
The trial court's response to the security guard's improper contact with the juror was not plain error
Justice argues that the superior court erred when it failed to determine whether other jurors had learned of the security guard's improper comments or whether the security guard had made comments to other members of the jury.
Because the jury had not reached a verdict — in fact deliberations had not begun — the trial court had the authority to ask the jurors whether they learned about the comments made by the guard, and, if they had, how the comments might have affected them. Moreover, under Alaska Evidence Rule 606(b), even after a jury reaches a verdict, a trial court may "question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror."
See Larson v. State, 79 P.3d 650, 653 (Alaska App. 2003) (noting that Alaska Evidence Rule 606(b) "does not apply when the issue of potential jury misconduct is litigated before the jury returns its verdict").
In the proceedings below, the parties agreed that the juror acted appropriately by reporting the security guard's improper comments to the court, and neither party challenged the juror's fitness to remain on the jury. On appeal, Justice claims that the court should have taken additional steps to ascertain whether the juror communicated the security guard's comments to any other jurors, or whether the security guard had similar improper contact with other jurors. But Justice's attorney never asked the trial court to conduct such an inquiry. Nor did the attorney ask the trial court to grant a mistrial or to take any action other than to prevent further contact by the security guard. Therefore, to prevail on appeal, Justice must establish that the trial court's failure to take these additional steps was plain error.
We find no plain error. We note that after the juror reported the security guard's improper comments, the court, sua sponte, told the jurors that if any of them "[had] any problems, any comments, any feedback from the security [officers]" in the courthouse, they should notify the court. Also, several times throughout the trial, the court instructed the jurors not to discuss the case with anyone, and not to let anyone discuss the case in their presence. Given these circumstances, we conclude that the trial court did not commit plain error by failing to investigate this matter further.
The trial court did not abuse its discretion when it denied Justice's motion for a mistrial
Prior to trial, the State made an application to introduce evidence of Justice's 2003 misdemeanor conviction in Virginia for contributing to the delinquency of a minor — for having consensual sexual intercourse with a fifteen-year-old girl. Justice opposed the application. The superior court admitted the evidence under Alaska Evidence Rule 404(b)(2). Justice does not contest this ruling on appeal.
Alaska R. Evid. 404(b)(2) provides, in pertinent part: "In a prosecution for a crime involving ... sexual assault or abuse of a minor, evidence of other acts by the defendant toward the same or another child is admissible ... if the prior offenses ... are similar to the offense charged; and ... were committed upon persons similar to the prosecuting witness."
At Justice's trial, the minor in the Virginia case, V.L., testified that she met Justice at church and he began a sexual relationship with her when she was fifteen years old. V.L. said her relationship with Justice ended when she told her mother about it, who notified the police. The prosecutor asked V.L. why she told her mother, and V.L. stated "[b]ecause it was found that he may have had involvement with another girl."
Justice moved for a mistrial, asserting that V.L.'s reference to "another girl" went beyond what the court had allowed and was extremely prejudicial. The trial judge concluded that the prosecutor had not intentionally elicited the statement from V.L. and denied the motion, but he instructed the jury to disregard V.L.'s remark. The judge told the jury:
[D]isregard any reference, any suggestion, or any hint that there was or may have been an event involving another person other than [V.L.]. That's rumor, that's the exact type of thing that I told you earlier that the rules are designed to protect you from so that you're not going to decide the case on prejudice, passion, or speculation, but only on the facts here in court. So you're to disregard any reference that [V.L.] may have had regarding ... why she called her mother.
The trial court also instructed the prosecutor to speak to V.L. prior to resuming her testimony to ensure that she did not make any further references to Justice's conduct with anyone else. V.L. complied with the court's order. During its closing argument, the State did not reference V.L.'s statement about Justice possibly being involved with another girl.
On appeal, Justice argues that the superior court erred when it denied his motion for a mistrial. He contends that because V.L.'s comment suggested that Justice engaged in other uncharged sexual acts with minor girls, it was "incendiary" and highly prejudicial. Thus, he argues that the court's curative instruction was insufficient and that a mistrial was the only appropriate remedy.
"Whether to grant a mistrial is within the sound discretion of the trial court, and the trial court's decision will not be reversed on appeal absent an abuse of its discretion. For the court to have abused its discretion, its decision must have been clearly unreasonable." This Court has explained that the trial judge is in a better position than an appellate court to determine the extent of any prejudice because "[t]he trial judge has the opportunity to observe the tainted evidence in the context in which it is received by the jury." Generally, when a trial court gives a curative instruction to the jury, the law presumes that it will be sufficient to remove any prejudice from the improper evidence.
Noah v. State, 887 P.2d 981, 983 (Alaska App. 1995) (citing Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981)).
Roth, 626 P.2d at 585.
Hines v. State, 703 P.2d 1175, 1178 (Alaska App. 1985); Lau v. State, 175 P.3d 659, 663 (Alaska App. 2008).
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V.L.'s statement — that Justice "may have had involvement with another girl" — was improper to the extent that it suggested that Justice might have engaged in illegal sexual conduct with another minor. However, given that V.L. was already testifying about her own sexual relationship with Justice when she was a minor, the comment was not so shocking that the trial court abused its discretion when it concluded that the statement could be cured with an immediate instruction to the jury. This conclusion is supported by the strength of the State's evidence against Justice, including M.P.'s detailed testimony of her sexual activity with Justice, her detailed description of the interior of Justice's residence, incriminating text messages between Justice and M.P., and M.P.'s testimony about a distinct birth mark located just above Justice's penis.
Given the evidence presented at Justice's trial and V.L.'s limited comment, which was immediately followed by a curative instruction, we conclude that the superior court did not abuse its discretion when it denied Justice's motion for a mistrial.
Conclusion
The judgment of the superior court is AFFIRMED.