Opinion
Court of Appeals No. A-10996 Trial Court No. 3AN-09-11268 CRNo. 5946
05-01-2013
CYNTHIA MARIE WASHINGTON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Nancy Driscoll Stroup, Palmer, for the Appellant. Terisia K. Chleborad, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith and Philip R. Volland, Judges.
Appearances: Nancy Driscoll Stroup, Palmer, for the Appellant. Terisia K. Chleborad, 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 Coats, Senior Judge .
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge MANNHEIMER.
Cynthia Marie Washington appeals her convictions for second-degree forgery and second-degree theft, based on the fact that she presented a stolen and forged check for deposit into an account at a credit union. Washington contends that the evidence presented at her trial was legally insufficient to establish that she knew the check was forged, or that she intended by her actions to appropriate funds to the benefit of someone other than the legitimate account-holder. Washington also claims that the trial court should have issued an order calling for dismissal of the charges unless the State granted immunity to two other people allegedly involved in the check forgery scheme.
For the reasons explained in this opinion, we conclude that the evidence is sufficient to support Washington's convictions, and we further conclude that Washington has failed to establish that the State undermined the fundamental fairness of her trial when the State refused to immunize her alleged co-conspirators.
Underlying facts
In May 2009, someone stole Stephanie Bahner-Hall's checkbook. Bahner-Hall remained unaware of this theft until later that summer. During the interval, multiple checks totaling $3,800 were written on Bahner-Hall's account. Each check bore her forged signature.
Some of these checks were written for small purchases, but several checks were written for large amounts of money, and this money was deposited into the credit union account of someone named Silvannia Waters. Within hours of each deposit, Waters would withdraw the newly deposited money from her account. Apart from the deposits attributable to these forged checks, Waters's account had a balance of five dollars.
The theft of the checks, and the theft of Bahner-Hall's money, came to light later that summer, when Bahner-Hall tried to make a purchase with a debit card tied to her checking account. The debit card was declined, so Bahner-Hall contacted her credit union — only to discover that there was no money left in her account.
By examining the records of Silvannia Waters's account (i.e., the dates and times of the deposits), and by examining its video surveillance recordings, the credit union was able to retrieve video images of various people who brought the stolen checks to the credit union for deposit into Silvannia Waters's account. One of these people was Cynthia Washington.
Washington was identified after the Anchorage Daily News published a "crime stoppers" notice, asking for the public's help in identifying two women who visited the credit union on July 17, 2009 — one of whom was recorded in the act of presenting a check for $843, stolen from Bahner-Hall's account, and depositing this check into Waters's account.
In response to this crime stoppers notice, tipsters identified Washington as the woman who presented the check and made the deposit into Waters's account. The other woman was an acquaintance of Washington's, Tia Mikes.
It turned out that Washington and Mikes had not gone to the credit union together. Rather, by coincidence, they arrived at the credit union at the same time. While in the credit union, Washington and Mikes talked, and they continued their conversation in the parking lot, where Mikes's fiancé and baby were waiting for her.
During the two days following the publication of the crime stoppers notice, Washington sent a series of text messages to Mikes, all of them concerning the crime stoppers notice. At the end of the first day, Mikes sent Washington a reply text message in which she said that she remembered Washington's having cashed a check at the credit union.
Washington responded by sending a text message to Mikes in which she denied cashing a check at the credit union. In this text message, Washington declared, "I was not cashing a check. I was inquiring about an old account". Washington asserted that "[she was] innocent", and she told Mikes that she intended to start "suing their asses".
A couple days later, Washington spoke to Anchorage Police Detective Joseph Barth. Washington acknowledged that she had been at the credit union on the day in question, but she told Barth that she visited the credit union to inquire about her account. The police later found out that Washington's account at this credit union had been closed almost two years earlier, for insufficient funds.
The State charged Washington with theft of an access device (i.e., receiving the stolen check, with reckless disregard that it was stolen property). The State also charged Washington with forgery (i.e., knowingly uttering the forged check). In essence, the State alleged that Washington received the check knowing that it was stolen, and that she negotiated the check with knowledge that the signature was fraudulent.
The State also indicted Silvannia Waters and another woman, Kira Lamb, who allegedly deposited other forged checks into Waters's account. The charges against Waters and Lamb were ultimately severed from the charges against Washington, and Washington went to trial alone.
At her trial, Washington asserted that she had acted innocently. She now acknowledged that she had deposited a check at the credit union on July 17th, but she testified that her niece, Iriel Washington, gave her this check and asked her to take the check to the credit union and deposit it, as a favor to her. Washington claimed to have no knowledge that the check was forged or that any money was being stolen.
The jury rejected this defense and found Washington guilty of second-degree theft and second-degree forgery.
AS 11.46.130(a)(7) and AS 11.46.505(a)(1), respectively.
Washington's argument that the evidence was legally insufficient to support her convictions
Washington claims that the evidence presented at her trial was insufficient, as a matter of law, to support her convictions for forgery and theft. But Washington's argument in support of this claim rests on viewing the evidence in the light most favorable to herself. When an appellate court assesses the sufficiency of the evidence to support a conviction, we must view the evidence, and the reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the jury's verdict. Applying this standard to the evidence presented at Washington's trial, we conclude that the evidence is sufficient to support her convictions.
Cleveland v. State, 258 P.3d 878, 885 (Alaska App. 2011).
Washington's argument that the superior court should have ordered the State to grant immunity to two people who Washington claimed were involved in the fraudulent check scheme
Washington argues that her convictions should be reversed because the superior court refused to order the State to grant immunity to two proposed defense witnesses, Kiara Victorian and T.F. (or face dismissal of the charges if it failed to do so).
According to Washington, both of these people were involved in the fraudulent check scheme. (T.F. was, in fact, prosecuted as a juvenile for involvement in the scheme.)
Before her trial began, Washington asked the superior court to order the State to grant immunity to these witnesses, or to order dismissal of the charges if the State did not. Washington asserted that, if Victorian and T.F. were forced to testify, Washington "expected" these two witnesses to say that Washington's niece Iriel, or perhaps "others" (i.e., other unidentified people), "were responsible for the [forged] checks". Washington further asserted that if these two witnesses were forced to fully explain their own involvement in the fraudulent check scheme, their testimony would constitute "critical evidence regarding [Washington's] guilt or innocence".
Washington described this "critical evidence" as follows:
The defense wants Kiara Victorian and [T.F.] to admit that Cynthia Washington was not the stealer or [the] drafter of the checks. Further, [the defense wants T.F. to admit] that he received [other stolen] checks ... from Iriel Washington (which supports Ms. Cynthia Washington's position that she was an unknowing shill for Ms. Iriel Washington). Further[,] that Iriel Washington used [T.F.] to prevent herself from being caught. Clearly [all of] this is relevant and exculpatory to ... the charge that Ms. Cynthia Washington was the stealer, drafter[,] or utterer of the checks.
But the State never alleged that Washington was the one who initially stole Bahner-Hall's checks, or that Washington personally received any of the proceeds from the forged checks. Rather, as we have already explained, Washington was charged with second-degree theft because the State alleged that she knowingly received a stolen "access device" — i.e., the stolen check — recklessly disregarding the fact that it was stolen. The State alternatively alleged that Washington committed theft by negotiating the check with the intent of depriving the true owner of the $843 in funds represented by the check.
With respect to the forgery charge, the State did not allege that Washington personally forged Ms. Bahner-Hall's signature on the check that she deposited into Silvannia Waters's account at the credit union. Rather, the State charged Washington with forgery under the theory that she "uttered" the forged check — i.e., presented it for deposit at the credit union — knowing that it was forged.
See AS 11.46.580(b)(2) (defining the term "utter" for purposes of the forgery statutes).
Thus, even if the testimony of the two proposed witnesses conformed to Washington's offer of proof, this would not prove that Washington was innocent. The possibility that Victorian and T.F. were co-conspirators in the fraudulent check scheme, and that Victorian and T.F. might name Washington's niece, Iriel, as a ringleader of the scheme, would not prove that Washington acted innocently when she went to the credit union and deposited the stolen and forged check into Silvannia Waters's account.
When Washington raised this issue before trial, the superior court denied Washington's request, but the court invited Washington to renew the immunity motion "if and when" the two witnesses (Victorian and T.F.) were actually called to testify at Washington's trial.
Washington never renewed her immunity motion with respect to Kiara Victorian. However, five months later (and about two months before trial began), Washington filed a renewed motion seeking immunity for T.F. — or, in the alternative, dismissal of the case. This renewed motion was essentially a verbatim rehashing of the arguments presented in the original motion.
The superior court denied Washington's renewed motion to force the State to grant immunity to T.F.. In its written order, the court concluded that "[a] denial of ... immunity ... to [T.F.] would not undermine the fundamental fairness of [Washington's] trial" because "[it did] not appear that [T.F.'s] testimony [had] clear exculpatory value, or that his testimony would lead to [Washington's] acquittal."
On appeal, Washington argues that she was denied the right to compulsory process, and the right to present a defense, because the superior court refused to order the State to grant immunity to Victorian and T.F..
Washington's argument with respect to Victorian is not preserved. As we have explained, the superior court directed Washington to renew her immunity request if and when the two witnesses were ever called to testify at trial. Victorian did, in fact, testify at Washington's trial. She was called as a defense witness, and Washington's attorney made a tactical decision to limit the scope of the examination so that Victorian did not assert her privilege against self-incrimination. Washington did not renew the immunity motion with respect to her.
With respect to T.F., our review of the record convinces us that the superior court did not abuse its discretion when the court concluded that T.F.'s proposed testimony did not have "clear exculpatory value", and when the court concluded that T.F.'s testimony "would [not] lead to [Washington's] acquittal."
In State v. Echols, 793 P.2d 1066, 1072-75 (Alaska App. 1990), this Court recognized that there are certain extreme circumstances in which a trial judge can properly dismiss a criminal prosecution in the furtherance of justice under Alaska Criminal Rule 43(c) if the State refuses to immunize a witness who has crucial exculpatory evidence to offer.
But as this Court explained in Cogdill v. State, 101 P.3d 632, 634-35 (Alaska App. 2004), the actual holding in Echols is not contained in the lead opinion (which had the adherence of only one member of the Court). Rather, the Echols holding is contained in the concurrence jointly authored by the other two members of the Court, Judges Bryner and Singleton.
In their concurrence, Judges Bryner and Singleton stated that "[t]he simple and exclusive basis" for the dismissal of the prosecution in Echols was that, "under the unique circumstances of the [Echols]case, it would have been fundamentally unfair to subject [the defendant] to the possibility of conviction on the disputed charges [in] the absence of [the witness's] exculpatory testimony". Echols, 793 P.2d at 1076.
According to these two concurring judges, the fundamental unfairness in Echols arose because of a combination of two factors: (1) the absent witness's testimony was shown to have "crucial exculpatory value", and (2) the district attorney's office "was inextricably involved in the circumstances that led [this witness] to invoke her privilege not to testify". Id at 1077. "Indeed", the two concurring judges declared,
the record establishes that the [State] did everything in its power to avail itself of [this witness's] testimony when it appeared likely [that the testimony would] be favorable [to the State,] and [did everything in its power] to assure that the testimony would not be heard when it appeared likely [that the testimony would] be unfavorable [to the State].Echols, 793 P.2d at 1077 (concurring opinion of Judges Bryner and Singleton).
In other words, as our decision in Cogdill explains, Echols holds that a judge can dismiss a criminal case if the State refuses to grant immunity to a prospective defense witness when the State has engaged in unfair manipulation of the evidentiary process — "threatening prosecution of a crucial defense witness when the State's sole motive for this threat was to deter the witness from testifying for the defense." Cogdill, 101 P.3d at 635.
Accordingly, even when the State refuses to confer immunity on a potential defense witness, it is improper for a trial judge to order dismissal of the case under Criminal Rule 43(c) if "[it is] not manifest that [the witness's] testimony would [lead] to [the defendant's] acquittal", or if the State has a valid reason for declining to extend immunity to the witness.
Cogdill, 101 P.3d at 635, quoting Blair v. State, 42 P.3d 1152, 1155 (Alaska App. 2002).
Cogdill, 101 P.3d at 635-36, quoting Blair, 42 P.3d at 1155-56.
In the present case, Washington asked the superior court to order the State to confer immunity on T.F. under the theory that T.F. was a co-conspirator in the fraudulent check scheme, and that he would (if forced to testify) identify Washington's niece, Iriel, as a ringleader of the scheme. Nothing in this proposed testimony would manifestly lead to Washington's acquittal. From the beginning, the State alleged that several people were involved in the fraudulent check scheme. And to the extent that T.F. might identify Washington's niece as a ringleader of the scheme, the jury might view this as further proof of Washington's knowing participation in the scheme.
For these reasons, we uphold the superior court's ruling on this issue.
Conclusion
The judgement of the superior court is AFFIRMED.