Memorandum decisions of this Court do not create legal precedent.
Judge SUDDOCK.
James Howard Wease was convicted of second-degree murder and two counts of tampering with evidence after he killed his wife and then concealed evidence of the crime.
On appeal, Wease argues that the trial court erred by: (1) not suppressing evidence obtained pursuant to two search warrants; (2) not disqualifying a witness as unreliable; (3) not finding a fatal variance between his conviction for second-degree murder and the first-degree murder theory presented to the grand jury; (4) not giving a unanimity instruction as to second-degree murder; (5) not instructing the jury on self-defense, heat of passion, and lesser-included offenses; and (6) not granting his post-trial motion for dismissal of the indictment, for a judgment of acquittal, and for a new trial.
For the reasons explained below, we reject these claims and affirm Wease's convictions.
In November 2007, James Wease worked an alternating-week schedule at the Beluga Power Plant. When not at work, he lived in a condo in midtown Anchorage with his wife, Dana Wease.
When Wease and Dana met in 2006, Dana suffered from drug and alcohol addiction and sometimes resorted to prostitution to fund her drug habit. She then spent a year in a rehabilitation program and became mostly sober. But on November 13, 2007, Dana relapsed. She drank alcohol and pawned her mother's wedding ring to purchase drugs. Wease returned home from work the next morning to find Dana in bed on sick leave from her job, with the condo in disarray.
Wease left the condo to run errands with a friend, Richard Chiaro. Chiaro noted that Wease sounded irritated with Dana, when Wease twice spoke with Dana on his phone that morning. Then, around 1:00 p.m., Wease purchased a forty-five gallon garbage can at Home Depot. Dana was never heard from again.
Early the next morning, Wease visited an Anchorage carpet store. He asked for carpet to match the condo's existing carpet and requested that it be installed the next day. Informed that this carpet had to be special ordered, he instead chose a stock carpet that could be installed immediately.
The next day Wease requested Dana's paycheck from her employer. Dana's co-workers refused to turn over Dana's paycheck to Wease. After he departed, a co-worker (Dana's sister-in-law) reported her missing.
Police officers went to Wease's home that evening. The officers observed that the condo's carpet, but not its underlying pad, was missing. Wease told the officers that he had ordered new carpet as a Christmas present for Dana. Wease also said that he planned to take Dana to a resort in Homer while the carpet was being installed. But when the officers later contacted the resort, they learned that Wease had cancelled his reservation the same day Dana went missing.
On November 30, a trapper discovered Dana's body at the bottom of an embankment at mile 75 of the Seward Highway. A medical examiner concluded that she had suffered multiple stab wounds to her back.
Officers obtained and executed a warrant to search Wease's vehicle, apartment, and person. They found that a new carpet had been installed in Wease's condo. The officers also discovered cleaning supplies and a stain removal guide. They noticed several dark spots on the wall in the bedroom that tested presumptively positive for blood, but they did not take samples of these spots during this first search.
On December 11, the officers obtained and executed a second warrant to search Wease's home. They found that the area where they had previously observed drops of blood on the wall had been repainted. The officers pulled back the carpet and discovered blood stains on the carpet pad below. Through DNA testing, the officers confirmed that the blood was Dana's.
The officers also learned that Wease had borrowed a friend's Ford Escape a few days after Dana's disappearance. In the back of this vehicle, they discovered evidence of blood that also matched Dana's. Wease's cell phone records revealed that he drove south on the Seward Highway the same day he borrowed the Escape.
Based on this evidence, a grand jury indicted Wease for first-degree murder, second-degree murder, and three counts of tampering with physical evidence.
Wease argues that the trial court erred in finding that the warrant issued on November 30 was supported by probable cause. According to Wease, the warrant application was based on uncorroborated hearsay statements. Wease thus claims that all evidence seized pursuant to the warrant should have been suppressed.
The search warrant application included evidence of the following: Wease was the last known person to see Dana alive; Wease told the police that he and Dana had argued on the day of her disappearance; and Wease's friend Richard Chiaro had told officers that Wease was annoyed with Dana during phone conversations Chiaro overheard that day.
The search warrant application also recited that the same day Dana disappeared, Wease removed the carpet in their bedroom, even though he had not yet purchased a replacement. By multiple accounts, the carpet was relatively new and in good condition. The following day, Wease told an employee of a carpet store that he was "tired of the carpet and wanted a change." But Wease provided a different explanation for the carpet removal to the police — that the new carpet was a Christmas present for Dana. When asked how he knew Dana would approve of the chosen carpet, Wease became evasive, stating that Dana had seen the carpet in a friend's home. Wease later told his friend Chiaro that he was upset that the officers had visited his home before he was able to replace the carpet.
Lastly, the search warrant affidavit reported that, more than two weeks after her initial disappearance, Dana's body was discovered off the Seward Highway.
We view the evidence offered in support of a search warrant in the light most favorable to upholding the warrant.
Wease argues that the first search warrant affidavit was insufficient to establish probable cause because some of the evidence was derived from uncorroborated hearsay statements. We disagree. Because this evidence was provided by "citizen informants," it was only necessary that officers verified "some of the details of the information."
As previously mentioned, during the first search of Wease's home, officers discovered droplets of blood on a bedroom wall but did not take a sample. The police later relied on evidence seized during the first search to request a second warrant to search Wease's home for "evidence of blood, or areas of cleaned blood on the walls."
A magistrate issued the second warrant authorizing officers to search for "[b]lood both visible and microscopic." Officers attempted to collect samples of the previously observed blood droplets, but the wall had been cleaned and repainted. They did, however, discover blood in the carpet padding near the repainted area.
On appeal, Wease argues that evidence of blood from the carpet padding should have been suppressed because the warrant application only sought authority to search for blood "on the walls." But this ignores the warrant's plain language, which authorized a search for blood — either "visible" or "microscopic" — throughout Wease's condo. We thus reject Wease's claim that the officers exceeded the scope of the warrant by searching for blood on the carpet pad.
We also disagree with Wease's narrow reading of the officer's request. As noted above, the officer sought to "search for evidence of blood, or areas of cleaned blood on the walls." Wease interprets "on the walls" as limiting both requests, but the magistrate reasonably attributed a broader reading to the application — i.e., a search for (1) evidence of blood and (2) areas of cleaned blood on the walls. That is, the phrase "on the walls" applied only to "areas of cleaned blood." (Emphases added.)
Lastly, Wease contends that the language of the warrant violated the constitutional requirement that a warrant describe with particularity the places to be searched and items to be seized. But because Wease did not present this argument to the trial court, it is waived.
Samantha Delay-Wilson was the State's key witness at Wease's trial. Delay-Wilson testified that Wease visited her three days after Dana went missing. Wease told her that he and Dana had argued about the disarray in the condo and Dana's relapse, and that Dana attacked him. Wease strangled Dana and, at some point, she got "pierced" or "stuck." Wease then covered her body with a bedspread. According to Delay-Wilson, when Wease explained Dana's injury, he "just kept grabbing his chest."
At the time of Wease's trial, Delay-Wilson was facing unrelated state and federal charges. As part of a plea agreement with the State, Delay-Wilson's sentence would be mitigated if she cooperated in Wease's trial.
Wease moved to preclude Delay-Wilson from testifying, arguing that the plea agreement amounted to bribery because it provided Delay-Wilson with an incentive to inculpate Wease. Wease also asked the court to exclude her testimony as unfairly prejudicial under Alaska Evidence Rule 403.
The trial court denied Wease's motion but permitted him to cross-examine Delay-Wilson extensively regarding her criminal charges and her plea bargain, and to present argument to the jury regarding these matters.
In his opening statement, Wease's attorney asserted that Delay-Wilson's testimony would be unreliable and even perjurious because of her plea agreement. The defense attorney returned to this theme during his cross-examination of Delay-Wilson, questioning her extensively about her criminal charges. And during closing argument, Wease's attorney repeatedly referred to Delay-Wilson as a "liar," "perjurer," "fraud artist," and "con artist." The defense attorney implied that she might have been involved in Dana's murder.
On appeal, Wease renews his argument that, because Delay-Wilson testified pursuant to a plea agreement, she was effectively bribed to provide inculpatory testimony and should have been excluded as a witness on this basis. Federal courts have uniformly rejected this argument.
Wease also argues that the admission of Delay-Wilson's testimony violated his right to due process because Delay-Wilson was an "admitted perjurer." But Wease has presented no evidence that Delay-Wilson committed perjury during his trial — only that she had previously been untruthful in unrelated proceedings involving her own criminal charges.
Lastly, Wease argues that the trial judge should have excluded Delay-Wilson's testimony under Evidence Rule 403 because Delay-Wilson was an "admitted perjurer and con artist" whose testimony was unreliable. Evidence Rule 403 provides that a judge may exclude otherwise relevant evidence if its "probative value is outweighed by the danger of unfair prejudice." But questions of witness credibility are for the jury.
A variance occurs when a jury returns a conviction for an offense different than the one charged in the indictment.
Here, the State's medical examiner testified to the grand jury that Dana was stabbed intentionally. Wease argues that the State was therefore limited to a first-degree murder theory at trial, and that a variance occurred when the jury returned a conviction for second-degree murder. But contrary to Wease's interpretation of the grand jury testimony, the medical examiner did not offer an opinion as to whether Dana's assailant intended to kill her — only that the stabbing was intentional.
Moreover, Wease's argument ignores the fact that the grand jury indicted him for both first- and second-degree murder. Wease was thus not convicted of an offense different than the crime charged; rather, he was convicted of one of two indicted murder charges. We accordingly reject Wease's variance claim.
The jury was instructed on three theories of second-degree murder: (1) that Wease caused Dana's death while intending to cause her serious physical injury; (2) that Wease caused Dana's death while knowing that his conduct was substantially certain to cause death or serious physical injury; and (3) that Wease caused Dana's death while knowingly engaged in conduct performed under circumstances manifesting an extreme indifference to the value of human life.
But in State v. James, the Alaska Supreme Court explained that only when a jury is instructed disjunctively on alternate methods by which the defendant committed a crime must the jury "unanimously agree on just what the defendant did."
The facts of Wease's case fall within this latter category: the jurors were required to agree that Wease committed a single act — i.e., that he engaged in conduct that caused Dana's death — but they were not required to agree on Wease's mental state at the time of that act. We thus conclude that the trial court did not err in failing to instruct the jury on unanimity concerning the three theories of second-degree murder.
Wease argues that the trial court erred because it did not instruct the jury on self-defense, heat of passion, and the lesser-included offenses of manslaughter and negligent homicide. But under Alaska Criminal Rule 30(a), "[n]o party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objections."
As the State points out, Wease's attorney declined multiple opportunities to request these instructions; indeed, he repeatedly objected to any instructions on lesser-included offenses. By the time Wease's attorney finally requested these instructions, the jury had entered its second day of deliberations. Thus, Wease's request was untimely under Criminal Rule 30(a). As a practical matter, Wease was asking the trial judge to halt jury deliberations, reopen closing arguments, and give the jury additional instructions.
Wease contends that he in fact had requested these jury instructions. First, he argues that a footnote in his pretrial motion to dismiss the second-degree murder charge suggested that the court would be required to instruct on self-defense and heat of passion if it denied his motion to dismiss. This footnote in a pretrial pleading was not an adequate substitute for the express request that is required by Criminal Rule 30(a).
Wease also argues that he effectively requested these jury instructions when his attorney asked for inclusion of the word "unlawful" in the jury instructions on first- and second-degree murder — that is, because his attorney argued Wease could only be convicted of murder if the killing was "unlawful," the court should have been on notice that Wease wanted instructions on self-defense, heat of passion, manslaughter, and negligent homicide. We reject the argument that Wease adequately signaled his desire for these instructions by his argument for inclusion of the word "unlawful" in the judge's murder instructions.
Wease also argues that the trial court had a duty to instruct the jury sua sponte on lesser-included offenses. But we have previously held that "a trial judge need not instruct a jury on a lesser-included offense unless one or both parties request it."
Having carefully reviewed the record, we conclude that the trial court was within its discretion in denying Wease's tardy request to halt jury deliberations, re-instruct the jury, and reopen closing arguments.
Following his trial, Wease filed a pleading that he characterized as a "renewal" of seventeen motions that he had made pretrial or during trial, and that also included post-trial motions for a judgment of acquittal or in the alternative for a new trial.
Wease now raises three claims of error regarding the trial court's denial of this omnibus motion. First, he argues that the trial court should have granted his post-trial motion for a judgment of acquittal. Second, he argues that the court should have granted his post-trial motion to dismiss the indictment. Third, he argues that the trial court inadequately addressed his motion for a new trial.
As to the first claim of error, denial of a judgment of acquittal, Wease argues that the court should have stricken the testimony of two witnesses: Delay-Wilson, because her plea bargain and her prior perjury allegedly undermined her credibility, and the physician who performed the autopsy on Dana, because he made a factual mistake during his testimony. We have already rejected Wease's arguments about Delay-Wilson's testimony.
As to the autopsy testimony, Wease is correct that the physician made a mistake during his testimony. The error occurred as follows: One pathologist performed an initial autopsy on Dana, but he later left the state. Dr. Stanton Keller performed a second autopsy. Dr. Keller testified before the grand jury, but he died before Wease's trial.
At trial, the parties stipulated that the State could introduce the audio recording of Dr. Keller's grand jury testimony. In that testimony, Dr. Keller described the wounds to Dana's body. He testified that there were areas of "notching" on several of Dana's ribs, as well as markings on Dana's scapula. Dr. Keller pointed to evidence that one of the knife blows had penetrated Dana's back and passed through her lungs, causing bleeding into her pleural cavity, and had then struck the inside of her front ribs. And he testified that one of the knife blows was strong enough to dislodge a piece of one of Dana's ribs.
But during the cross-examination of a police detective at Wease's trial, the detective revealed that the missing piece of Dana's rib had been removed by the first pathologist (the one who had left the state) for purposes of future investigation. In light of the detective's testimony, the prosecutor conceded during the State's summation that Dr. Keller had been mistaken when he told the grand jury that the knife struck with sufficient force to sever a piece of Dana's rib.
Wease now contends that Dr. Keller's erroneous conclusion as to why the rib fragment was missing should have led the trial court to strike all of his testimony regarding the cause of Dana's death. But Wease does not support this proposition with citation to case authority or with any supporting argument, and we reject it.
Since both of the premises underlying Wease's motion for judgment of acquittal lack merit, we uphold the judge's denial of that motion.
Wease's second claim based on denial of his omnibus motions is that the trial court should have dismissed the indictment because of Dr. Keller's mistaken testimony about how the fragment of Dana's rib came to be missing. Dismissal of an indictment is only required in these circumstances when the misstatement of fact "would substantially affect the grand jury's conclusion."
Wease's third claim of error arising from denial of his omnibus motion is that the judge denied his post-trial motion for a new trial without expressly assessing the credibility of Dr. Keller and Delay-Wilson.
Normally, a motion for a new trial on the ground that the jury's verdict is against the weight of the evidence invites a judge to weigh the strength of the government's case, including the credibility of the witnesses at trial, to determine if the jury's decision appears to be reasonable.
In his motion, Wease's attorney simply repackaged arguments he had already made. The trial judge had already rejected the defense attorney's contention that Dr. Keller's mistake about the cause of the missing piece of rib should have resulted in the striking of his entire testimony. Likewise, the trial judge had already rejected the defense attorney's contention that Delay-Wilson's testimony should have been stricken in its entirety because of her plea agreement with the State and her prior act of perjury.
The defense attorney offered no other reasons why the trial judge should conclude that the testimony given by Dr. Keller and Delay-Wilson was unbelievable, or that particular aspects of that testimony were clearly against the weight of the other evidence.
And the defense attorney's assertion to the trial judge that, without the testimony of Delay-Wilson and Dr. Keller, the State's case would collapse like a "house of cards" was mere conclusory rhetoric.
We therefore conclude that the trial judge did not err when he denied the motion for a new trial without making explicit findings.
We AFFIRM the judgment of the superior court.
