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Christian v. State (4/27/2012) ap-2353

Christian v. State (4/27/2012) ap-2353


        The text of this opinion can be corrected before the opinion is published in the 

        Pacific Reporter.   Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts: 

                              303 K Street, Anchorage, Alaska  99501

                                        Fax:   (907) 264-0878

                        E-mail:   corrections @


                                            )              Court of Appeals No. A-10561 
                               Appellant,   )             Trial Court No. 3AN-06-4632 Cr 
                        v.		    )	 
                                            )                     O  P  I  N  I  O  N 
                               Appellee.    )              No. 2353     -   April 27, 2012 

                Appeal     from   the  Superior   Court,   Third   Judicial   District, 

                Anchorage, Philip R. Volland, Judge. 

                Appearances:   Dan S. Bair, Assistant Public Advocate, Appeals 

                and   Statewide   Defense   Section,   and   Rachel   Levitt   (opening 

                brief)   and  Richard    Allen   (reply  brief),  Public   Advocates, 

                Anchorage,     and   Ronald    K.  Christian,  in  propria    persona, 

                Tallahassee, Florida, for the Appellant.       Diane L. Wendlandt, 

                Assistant Attorney General, Office of Special Prosecutions and 

                Appeals,   Anchorage,   and   John   J.   Burns,   Attorney   General, 

                Juneau, for the Appellee. 

                Before:     Coats,   Chief   Judge,   and   Mannheimer   and   Bolger, 


                MANNHEIMER, Judge. 

                Ronald K. Christian appeals his conviction for first-degree murder, as well 

as   the   106-year    composite     sentence    that  he  received    for  this  murder,    for   two 

----------------------- Page 2-----------------------

accompanying acts of evidence tampering, and for various acts of theft that Christian 

committed by using the murder victim's debit and credit cards. 

              Through counsel, Christian argues (1) that his pre-sentence report should 

have been amended by striking the analysis of the offense offered by the State's medical 

examiner, Dr. Frank Fallico, and (2) that the trial judge should have allowed Christian 

to personally deliver the defense opening statement. The State concedes error on the first 

issue - the question of the pre-sentence report.     With regard to the second issue, we 

conclude that the trial judge acted reasonably when he refused to allow Christian to 

deliver the opening statement. 

              Christian raises other issues in propria persona.    He argues that the trial 

judge committed error by allowing the State to introduce evidence tending to show that 

Christian and another man, Charles Greenlee, attempted to commit a robbery that was 

not directly related to the homicide in this case.     He also argues that the trial judge 

violated his right of confrontation by allowing the State to introduce evidence of various 

out-of-court statements made by Greenlee, when Greenlee did not testify at Christian's 

trial.  Finally, Christian argues that his sentence is excessive, to the extent that his 

sentences for evidence tampering and theft (a total of 7 years, 2 months' imprisonment) 

were imposed consecutively to his 99-year murder sentence.   For the reasons explained 

in this opinion, we conclude that the challenged evidence was properlyadmitted, and that 

Christian's composite sentence is not clearly mistaken. 

       Overview of the State's case against Christian 

              On January 28, 2006, Christian met up with Christopher Lindstrom and 

offered to assist Lindstrom in obtaining some crack cocaine; the two men went off in 

search of crack cocaine in Lindstrom's truck. Christian arranged a cocaine purchase for 

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Lindstrom, but during the course of this transaction Christian decided to kill Lindstrom. 

Christian also stole Lindstrom's wallet, which contained credit and debit cards. 

                Later, Christian met up with a friend of his, Charles Greenlee, and the two 

of them used Lindstrom's credit and debit cards to make numerous purchases. 

                Two days later, on January 30, 2006, Christian was arrested near the scene 

of an attempted robbery of a credit union. Greenlee was later apprehended for this same 

attempted robbery, after his car was connected to the crime. 

                Federal agents impounded Greenlee's car, and they interviewed Greenlee. 

During this interview, Greenlee passed a note to the agents.   This note read:   "I know of 

a murder that Ron [Christian] did[,] and I know where the vehicle is and the body." 

                The     Anchorage       police    were    already     investigating     Lindstrom's 

disappearance, and they considered Christian a person of interest in their investigation, 

so they contacted the FBI after Christian was arrested for the attempted bank robbery. 

Because   of   this   contact,   the   federal   agents   informed   the   Anchorage   police   about 

Greenlee's note.      The police obtained a warrant to search Greenlee's car.            During this 

search, the police discovered Lindstrom's wallet and a piece of paper containing the PIN 

numbers for Lindstrom's bank accounts.              They also found a pair of gloves that had 

Lindstrom's blood on the outside and someone else's DNA on the inside.  (According 

to the testimony, Christian could not be excluded as a source of this DNA, but Lindstrom 

was definitely excluded as the source of the DNA.) 

                Greenleesubsequently tookthepolicetoLindstrom'sbody, which had been 

shoved into the pit of an outhouse in a secluded area near Butte, and he told the police 

that Lindstrom's truck had been left in Girdwood. 

                A subsequent autopsy revealed that Lindstrom had been severely beaten, 

suffering multiple blows from at least two different weapons, and that Lindstrom had 

been shot in the head twice. 

                                                - 3 -                                           2353

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                Other witnesses saw Christian in possession of Lindstrom's truck.   One of 

them overheard Christian speaking on the phone about the need to "get rid of a gun and 

dump the truck". Another witness helped Christian gather approximately $2000 in cash 

from inside the truck.  While doing this, the witness observed a puddle of blood in the 

truck.   Christian told this witness that he had beaten someone, and that he had shot this 

person in the head. 

                In addition to the foregoing evidence, the State also had recordings of 

telephone calls that Christian made to Greenlee following Christian's arrest for the 

attempted bank robbery.         In these conversations, Greenlee informed Christian that the 

authorities had seized his (Greenlee's) car, and that the police had a search warrant for 

the car.    Christian perceived that this was a problem, because he had put Lindstrom's 

wallet in Greenlee's car.       Christian apologized to Greenlee for leaving the wallet and 

other   incriminating   articles   in   Greenlee's   car.   With   regard   to   Lindstrom's   wallet, 

Christian at one point suggested that Greenlee could say that it belonged to a hitchhiker, 

and that the hitchhiker had inadvertently left it in the car.            Ultimately, Christian told 

Greenlee to deny any knowledge of these articles - to simply   tell the police that 

Christian had left "a bunch of stuff" in his car. Christian assured Greenlee that he would 

handle it from there. 

                During these recorded conversations, Christian expressed confusion as to 

how the police could have found Lindstrom's body, and he remarked that his hands were 

healing - apparently, healing from the injuries he sustained while he was beating 


                                                - 4 -                                            2353

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        The issue concerning the content of the pre-sentence report 

                At Christian's sentencing, the State contended that Christian's offense was 

aggravated because he had essentially tortured Lindstrom before he finally killed him. 

To support this assertion of torture, the State relied in large part upon the autopsy report 

and the grand jury testimony of Dr. Frank Fallico, who was the State Medical Examiner 

at the time of the homicide. 

                Dr. Fallico's autopsy report stated that Lindstrom had suffered five sharp- 

force wounds and ten blunt-force wounds, and that it took a "significant period of time" 

for Lindstrom to die, given the large amount of bruising on Lindstrom's body.                     (Dr. 

Fallico explained that bruising is caused by blood leakage, and that this leakage normally 

will not occur absent the blood pressure generated by a beating heart.)   Dr. Fallico also 

noted that Lindstromhad several stab wounds around his face - wounds serious enough 

to cause pain, but not serious enough to kill, and he concluded that it must have taken 

Lindstrom's assailant "a fairly long time to inflict these wounds".  Dr. Fallico testified 

that, given the location of Lindstrom's wounds, and the mechanical force that must have 

been applied to Lindstrom's body, one could say that Lindstrom had been subjected to 


                But Dr. Fallico died before Christian was brought to trial, so his successor 

as   medical   examiner,   Dr.   Robert   Whitmore,   testified   at   the   trial.  Dr.   Whitmore's 

testimony did not provide the same level of support for the State's assertion of torture, 

because Dr. Whitmore disagreed with, or at least was hesitant to endorse, several aspects 

of Dr. Fallico's analysis. 

                The   pre-sentence   report   prepared   by   the   Department   of   Corrections 

contained a summary of Dr. Fallico's analysis and conclusions, and the author of the 

                                                - 5 -                                            2353

----------------------- Page 6-----------------------

report expressly   cited   Dr. Fallico's findings as the author's basis for asserting that 

Christian tortured Lindstrom. 

                Christian's attorney objected to this portion of the pre-sentence report. The 

defense attorney pointed out that Christian had never had the opportunity to cross- 

examine Dr. Fallico, and that Dr. Whitmore's analysis and conclusions differed from 

Dr.   Fallico's   on   several   key   points.   The   defense   attorney   argued   that,   because 

Dr. Whitmore's testimony was the product of an adversarial process, it should supersede 

the pre-sentence report's hearsay account of Dr. Fallico's analysis and conclusions - 

and, therefore, Dr. Fallico's analysis and conclusions should be deleted from the pre- 

sentence report to the extent that they were inconsistent with Dr. Whitmore's testimony. 

                The   sentencing   judge   -   Superior   Court   Judge   Philip   R.   Volland   - 

acknowledged the disparities between Dr. Fallico's conclusions and Dr. Whitmore's 

conclusions, and he further acknowledged that Dr. Fallico's conclusions had never been 

tested by cross-examination.   However, Judge Volland declined to remove the descrip- 

tions of Dr. Fallico's conclusions from the pre-sentence report.                Instead,   the judge 

declared that he would give more weight to Dr. Whitmore's testimony. 

                On appeal, Christian argues that Alaska Criminal Rule 32.1(f)(5) required 

Judge Volland to delete the contested portions of the pre-sentence report - because 

Christian relied on Dr. Whitmore's testimony to challenge those portions of the pre- 

sentence report, because the State offered no witnesses to contradict Dr. Whitmore's 

testimony, and becausetheStateessentiallyconceded that Dr.Whitmore'stestimony was 

more accurate.  See Cragg v. State, 957 P.2d 1365, 1367-68 (Alaska App. 1998). 

                On appeal, the State acknowledges that, under Criminal Rule 32.1(f)(5) as 

construed in Cragg, Judge Volland had a duty to delete unproved factual allegations 

from the pre-sentence report, even if the judge was personally ready to disregard those 

allegations when he sentenced Christian.   The State further concedes that Dr. Fallico's 

                                               - 6 -                                           2353

----------------------- Page 7-----------------------

conclusions, as recited in the pre-sentence report, are inaccurate. We therefore direct the 

superior court to correct the pre-sentence report. 

        Judge Volland's refusal to let Christian personally deliver the defense 

        opening statement 

                During jury selection, Christian's attorney notified Judge Volland that 

Christian wished to function as co-counsel during the trial - and that, in particular, he 

wished to personally deliver the defense opening statement, and he wished to personally 

cross-examine four of the State's witnesses.          The defense attorney told Judge Volland 

that Christian had already written out the opening statement that he intended to give, and 

the defense attorney indicated that she had screened Christian's statement to make sure 

that it posed no problems. 

                In   response   to   a   question   from   Judge   Volland,   the   defense   attorney 

acknowledged that Christian had already decided that he would not take the stand at trial, 

thus raising the possibility that Christian would use the opening statement as a means of 

personally communicating his view of the case to the jury without submitting to cross- 

examination.       But   the   defense   attorney   told   Judge   Volland   that   she   had   checked 

Christian's proposed opening statement, and she assured the judge that "none of the 

statements [Christian intended to make] would be testimonial in nature".  The defense 

attorney offered to have Judge Volland examine Christian's proposed opening statement 

if the judge had any questions or reservations. 

                Judge   Volland   personally   questioned   Christian   about   his   educational 

background and training, and he warned Christian that he might be taking a risk by not 

entrusting the entire defense effort to his attorney.   The judge also explained that he was 

having his law clerk research the question of having a defendant assume co-counsel 

                                                - 7 -                                           2353

----------------------- Page 8-----------------------

status at trial, and he intended to make a decision on Christian's request as soon as he 


                The next day, shortly before the parties presented their opening statements 

to the jury, Judge Volland announced his decision regarding Christian's request to 

function as co-counsel. 

                Judge Volland told the parties that he had read a number of this Court's 

decisions   in   this   area,   and   that   those   cases   made   it   clear   that   a   defendant   has   no 

constitutional right to assume co-counsel status and receive "hybrid" representation. 

This is correct.   As we explained in Ortberg v. State, 751 P.2d 1368, 1375 (Alaska App. 


                Although the right to counsel and the right to self-represen- 

                tation are constitutionally protected, the right to participate as 

                co-counsel or have hybrid representation is not.               The trial 

                court has broad discretion to deny hybrid representation or 

                co-counsel   status.     Annas    [v.   State],   726   P.2d   [552,]   557 

                [(Alaska App. 1986)]; Cano v. Anchorage, 627 P.2d 660, 664 

                (Alaska App. 1981). 

                Judge Volland also noted that in Garrison v. State, 762 P.2d 465 (Alaska 

App.   1988),   this   Court   drew   a   distinction   between pro   se    defendants   seeking   the 

guidance or input of stand-by counsel, and (on the other hand) defendants like Christian, 

who are represented by counsel and who seek to act as a substitute for their attorney 

during portions of the case.   In Garrison, we held that defendants in this latter situation 

have a significantly lesser need for hybrid representation - and that this is a factor that 

a trial judge can properly consider when ruling on the defendant's request.                  Garrison, 

762 P.2d at 467.  Garrison also acknowledged that a defendant's co-participation in the 

trial process was potentially disruptive to the proceedings.  Ibid. 

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                Nevertheless, echoing what this Court said in Cano v. Anchorage, 627 P.2d 

at 664 ("[T]he accused has a substantial and legitimate interest in the manner in which 

[the] trial is conducted ... an interest which ought not to be taken lightly."), Judge 

Volland acknowledged that Christian had "a significant interest in how the management 

of   his  trial  proceeds",    and  that  he   (Judge   Volland)    was    required   "to  give   due 

consideration to Mr. Christian's request". 

                The   judge   found   that   Christian   had   more   education,   intelligence,   and 

training than most criminal defendants; he noted that Christian was currently enrolled in 

a paralegal training program.   The judge also found that Christian fully understood the 

risks of conducting part of the defense himself.  In addition, Judge Volland found that 

Christian would probably be able to conduct himself within the bounds of courtroom 

decorum, and that Christian had a good working relationship with his attorney. 

                (See Ortberg, 751 P.2d at 1375: "[C]o-counsel [status] or hybrid represen- 

tation should only be allowed if counsel and the defendant can work together and present 

a coherent defense.") 

                Nevertheless, Judge Volland was worried that, because of the lateness of 

Christian's request, he might not be able to fully research and consider the ramifications 

of letting Christian participate as co-counsel.   (Christian did not inform the judge of the 

details of his request for co-counsel participation until the day beforetheparties' opening 

statements.) Judge Volland noted that in Garrison, this Court discussed the tardiness of 

a defendant's request for co-counsel status as a factor that a trial judge could properly 

consider in denying the request.       Garrison, 762 P.2d at 467 n. 1. 

                Additionally, Judge Volland noted that allowing Christian to personally 

deliver the defense opening statement potentially raised significantly greater problems 

than allowing Christian to cross-examine some of the State's witnesses.  Christian and 

his attorney had already announced that Christian did not intend to take the stand at trial. 

                                                - 9 -                                           2353

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Thus, if Christian were allowed to deliver the opening statement, this would potentially 

permit him to make statements about the case, free from cross-examination. 

                (See Garrison, 762 P.2d at 466, and Lonis v. State, 998 P.2d 441, 446-47 

(Alaska App. 2000), where we noted the potential for unfairness if a defendant were 

allowed to personally address the jury concerning the merits of the case without being 

subject to cross-examination.) 

                After considering these various aspects of the situation, Judge Volland 

granted part of Christian's motion.   He allowed Christian to cross-examine a few of the 

State's witnesses (the ones that the defense attorney had earlier identified), but he denied 

Christian's request to personally deliver the opening statement. Here is Judge Volland's 

explanation of that latter ruling: 

                         The Court:      It is hard ... for me to imagine how [Mr. 

                Christian's] giving an opening statement is not, in essence, a 

                personal   statement   [to   the   jury].    I   don't   know   what   the 

                defense in this case is going to be.          But [whether] it's [that] 

                the State can't prove a certain mental intent, or it's a specific 

                enumerated   defense   -   no   matter   how   the   statement   is 

                phrased,   it   comes   across   nonetheless   as   Mr.   Christian's 

                personal statement and belief about his innocence.               I mean, 

                that's what the [defense] opening statement ought to be:   an 

                assertion [as to] why there ought not to be a guilty verdict 

                rendered. And in my mind, that allows [Mr. Christian] to 

                 [personally] assert his innocence, albeit indirectly, and not be 


                On   appeal,   Christian   notes   that   his   attorney   offered   to   provide   Judge 

Volland with a written draft of the defense opening statement, so that the judge could see 

for himself whether it contained any assertions that might be viewed as testimonial, but 

Judge Volland declined this offer.   Christian now argues that Judge Volland abused his 

                                                  -  10 -                                            2353

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discretion when he issued his ruling on this point without examining the draft opening 


                Christian did not preserve his draft opening statement as part of the record 

in this case.   We therefore do not know precisely what Christian intended to say, or why 

his attorney believed that none of the statements Christian intended to make to the jury 

were "testimonial". 

                Since we do not know the precise text of the draft opening statement that 

Christian's attorney offered to Judge Volland, we must presume that this draft statement 

embraced basically the same assertions as theopening statementthatChristian'sattorney 

delivered to the jury a short time after Judge Volland made his ruling.   And the content 

of the defense attorney's opening statement confirms Judge Volland's conclusion that 

it would have been unfair to have Christian deliver this statement personally. 

                In the defense attorney's opening statement, she conceded that Christian 

used Lindstrom's stolen credit and debit cards, and that he was therefore guilty of the 

multiple counts of theft charged in the indictment.   The defense attorney also conceded 

that Christian was guilty of the two counts of evidence tampering, because he dumped 

Lindstrom's body into the pit of an outhouse, and because he hid Lindstrom's vehicle in 


                With regard to the homicide, the defense attorney conceded that, prior to 

Lindstrom's death, Christian beat Lindstrom and cut him with a knife.                  Based on this 

conduct,   the   defense   attorney   suggested   that   Christian   should   be   found   guilty   of 

manslaughter.   But the defense attorney declared that Christian should not be convicted 

of murder -because there was a strong possibility that Charles Greenlee was the person 

who shot Lindstrom: 

                        Defense Attorney :      We're going to ask you to take a 

                very critical look at the State's evidence ... as it relates to who 

                                                -  11 -                                          2353

----------------------- Page 12-----------------------

                 actually shot Mr. Lindstrom, and whether or not the State's 

                 evidence establishe[s] that it was Ron Christian who shot 

                 Mr. Lindstrom. Because what you're going to hear, from the 

                witnesses   who   come   and   testify   here   in   this   case,   is   that 

                 another      individual      was     present      at   the    scene     of 

                 Mr.   Lindstrom's   death.       ...  That   guy's   name   is   Charles 

                 Greenlee.   ... 

                         Charles Greenlee is Mr. Christian's partner in crime, 

                 and I don't mean that in just a ... euphemistic way.                 He's 

                 actually Mr. Christian's partner in crime. You're going to 

                hear   that   he   ...   is   accused   of   robbing   a   bank   with   Mr. 

                 Christian. In fact, that's how this whole case [came] under 

                 investigation by [the Anchorage police]. 

                         You're going to hear from the State's witnesses, and 

                 ... cell phone records [will also] establish, that Mr. Greenlee 

                was there at the scene of the murder, and that Mr. Greenlee 

                 also   had    the  victim's    wallet    after  he   died.     And    that 

                 Mr. Greenlee also was benefiting from using the credit cards 

                 and the ATM cards from Mr. Christian [sic: Mr. Lindstrom]. 

                         Ladies     and   gentlemen,      we   will  ask   you    to  hold 

                 Mr. Christian accountable for those acts that the evidence 

                 actually establishe[s].  And all we ask from you in this case 

                 is that you take a very critical look at whether or not the 

                 State's evidence, one, establishes that Mr. Christian had the 

                 gun, and [two,] whether or not it establishes who actually 

                 shot Mr. Lindstrom. 

                 Essentially every occurrence mentioned in the defense attorney's opening 

statement was one that Christian personally participated in. Had Christian delivered this 

opening statement, he inevitably would have personally vouched for the truth of most of 

these assertions of fact - in particular, the many concessions of his guilt. This being so, 

                                                  -  12 -                                             2353

----------------------- Page 13-----------------------

the jury could reasonably have concluded that Christian was at least implicitly vouching 

for   the   truth   of   the   remaining   assertions   of   fact   - especially,   the   assertions   as   to 

Greenlee's participation in these crimes, and why it was reasonable to believe that 

Greenlee, not Christian, was the one who shot Lindstrom. 

                In other words, given Christian's decision not to take the stand at his trial, 

if Christian had personally delivered this opening statement, he essentially would have 

personally asserted his innocence without subjecting himself to cross-examination. 

                For these reasons, we conclude that even if Judge Volland should have 

accepted the defense attorney'soffer to reviewthe draft opening statement, any error was 

harmless.      The content of the defense opening statement (as it was delivered) fully 

supports Judge Volland's conclusion that it would be unfair to allow Christian to deliver 

the opening statement himself, because this would give Christian the opportunity to 

personally endorse a particular view of the facts without subjecting himself to cross- 


                Accordingly, Judge Volland did not abuse his discretion when he denied 

this portion of Christian's request to participate as co-counsel at the trial. 

        The evidence tending to prove that Christian was involved in the attempted 

        bank robbery 

                At trial, Christian's attorney asked Judge Volland to prohibit the State from 

introducing evidence that Christian was involved in the attempted robbery of the credit 


                The   defense   attorney   conceded   that   the   FBI's   questioning   of   Charles 

Greenlee concerning this attempted robbery "was the event that got the ball rolling" - 

because, during that interview, Greenlee passed a note to the federal agents in which 

                                                 -  13 -                                           2353

----------------------- Page 14-----------------------

Greenlee   offered   to   provide   information   regarding   the   homicide.         But   the   defense 

attorney argued that, once Greenlee gave the note to the federal agents, the homicide 

investigation "took on a life of its own". 

                According       to  the   defense    attorney,   the   homicide     investigation    was 

completely separatefromtherobberyinvestigation. Thedefenseattorney acknowledged 

that the jury could properly be informed that Greenlee was a suspect in another criminal 

investigation - because this explained the origin of Greenlee's note.  But the defense 

attorney argued, once the police were in possession of Greenlee's note, the homicide 

investigation that followed had no relation to the attempted bank robbery - and, thus, 

there was no need to explain that Christian was a suspect in the attempted robbery. 

                Judge Volland ruled that the evidence was admissible because it helped to 

explain the relationship between Christian and Greenlee, and their joint connection to the 

homicide   and   its   aftermath   (the   tampering   with   evidence,   and   the   various   thefts 

committed with Lindstrom's credit and debit cards).   Judge Volland also noted that this 

evidence might explain Greenlee's motive for offering to assist the authorities in the 

homicide investigation. 

                (Christian had already been arrested for the attempted robbery when the 

FBI interviewed Greenlee. As Judge Volland explained, Greenlee "[might have wanted] 

to implicate Mr. Christian in the homicide [because Greenlee knew] that Mr. Christian 

[could] implicate [Greenlee] in the bank robbery - because they were joint participants 

in it.") 

                On appeal, Christian   renews his argument that his involvement in the 

attempted  bank robbery was irrelevant to the homicide, and that this evidence was 

unfairly prejudicial.  The State responds that this evidence was needed "to understand 

and evaluate the [homicide] investigation". 

                                                 -  14 -                                            2353

----------------------- Page 15-----------------------

                The fact that particular information may help to explain the origin or the 

progress of the police investigation in a criminal case does not necessarily mean that this 

information   should   be admitted at trial.         The   ultimate question being litigated   at a 

criminal trial is the defendant's guilt or innocence of the crime charged - not the 

reasonableness or competence of the police investigation. 

                Thus, for instance, the police may have seen the defendant committing a 

burglary because the defendant was a suspect in another serious crime and (for this 

reason) the police were keeping the defendant under surveillance. If the other crime has 

no particular relationship to the burglary, then the fact that the defendant was suspected 

of that other crime would normally be inadmissible. 

                True, the fact that the defendant was suspected of the other crime would 

explain why the police were keeping the defendant under surveillance.                      But in this 

hypothetical situation, unless the defendant asserted that the police never observed him 

committing the burglary, the reason for the police surveillance would have little or no 

relevance to the issues being litigated at the defendant's burglary trial - and, thus, any 

information   linking   the   defendant   to   an   unrelated   serious   crime   would   be   unfairly 


                In Christian's case, however, the evidence linking him to the attempted 

bank robbery was relevant to the jury's assessment of Christian's guilt or innocence of 

the charges being litigated. 

                The fact that Christian and Greenlee jointly participated in the attempted 

bank   robbery   helped   to   explain   the   relationship   between   the   two   men   -   and,   in 

particular, helped to explain why Christian might be willing to trust Greenlee by saying 

things to Greenlee, and by doing things in his presence, that incriminated Christian in the 

homicide and the ensuing crimes.            Additionally, the fact that Christian and Greenlee 

jointly participated in the attempted robbery, and that Greenlee's car was used in that 

                                                -  15 -                                           2353

----------------------- Page 16-----------------------

robbery attempt, helped to explain how Lindstrom's wallet ended up in Greenlee's car. 

Moreover,   as    Judge   Volland   noted,   the   fact  that  Christian  and   Greenlee   jointly 

participated in the attempted robbery provided a possible explanation of Greenlee's 

motive for offering to assist the authorities in the homicide investigation. 

               We also note, with regard to the potential unfair prejudice of this evidence, 

that several witnesses atChristian'strial testified (withoutobjection)thatChristian talked 

about, even bragged about, other robberies he had committed.            It is therefore unlikely 

that the information about this particular attempted robbery would have affected the 

jury's decision in an improper way. 

               For all of these reasons, we conclude that Judge Volland did not abuse his 

discretion when he allowed the State to introduce this evidence at Christian's trial. 

        The evidence of Christian's telephone calls to Greenlee from jail 

               On appeal, Christian argues that his right of confrontation was violated 

whentheState introduced the content of Christian'stelephonecalls to Greenleefromjail. 

Christian points out that Greenlee did not testify at trial, and thus Christian never had an 

opportunity     to  confront   Greenlee    about   the  statements    he  made    during   these 


               But Greenlee's statements during these phone calls were not introduced for 

a hearsay purpose; that is, these statements were not introduced for the truth of the 

matters asserted by Greenlee. Rather,Greenlee'ssideofthoseconversations was offered 

for the non-hearsay purpose of providing the context for understanding  Christian's 

statements during those conversations. 1 

    1   See Estes v. State, 249 P.3d 313, 315-16 (Alaska App. 2011); Lipscomb v. State , 700 

P.2d 1298, 1304-05 (Alaska App. 1985); Linne v. State , 674 P.2d 1345, 1356 n. 8 (Alaska 

                                             -  16 -                                        2353 

----------------------- Page 17-----------------------

                BecausetheevidenceofGreenlee'sout-of-courtstatements was offered for 

a non-hearsay purpose, the introduction of that evidence did not implicate Christian's 

right of confrontation under the Sixth Amendment. As the United States Supreme Court 

explained in Crawford v. Washington, the Sixth Amendment's confrontation clause bars 

evidence if it is both "testimonial" and "hearsay", but it does not bar evidence if that 

evidence   is   not   hearsay:     "The   [Confrontation]   Clause   ...   does   not   bar   the   use   of 

testimonial   statements   for   purposes   other   than   establishing   the   truth   of   the   matter 

asserted." 2 

                As this Court recently noted in Estes v. State, 249 P.3d 313, 316 (Alaska 

App. 2011), in the years since the United States Supreme Court issued Crawford, the 

federal circuit courts of appeal have repeatedly held that when out-of-court statements 

are introduced, not for proof of the matters asserted, but for the purpose of providing the 

context   necessary   for   understanding   admissible   evidence,   the   admission   of   those 

out-of-court statements does not violate the confrontation clause. 3 

                For these reasons, we reject Christian's challenge to this evidence. 

App. 1983). 

    2   541 U.S. 36, 59 n. 9; 124 S.Ct. 1354, 1369 n. 9; 158 L.Ed.2d 177 (2004). 

    3   See United States v. Walter, 434 F.3d 30, 35 (1st Cir. 2006) ("Crawford ... does not 

call into question this Court's precedents holding that statements introduced solely to place 

a defendant's admissions into context are not hearsay, and as such, do not run afoul of the 

Confrontation Clause."); United States v. Domínguez, 280 Fed.Appx. 81, 84 (2nd Cir. 2008); 

United States v. Fleming, 287 Fed.Appx. 150, 153-54 (3rd   Cir.   2008);  United States v. 

Barraza, 365 Fed.Appx. 526, 530 (4th Cir. 2010); United States v. Ríos, 298 Fed.Appx. 312, 

314 (5th Cir. 2008); United States v. Grooms, 194 Fed.Appx. 355, 358-360 (6th Cir. 2006); 

United States v. Bermea-Boone, 563 F.3d 621, 626 (7th Cir. 2009); United States v. Spencer, 

592 F.3d 866, 879 (8th Cir. 2010); United States v. Moore, 365 Fed.Appx. 800, 802 (9th Cir. 

2010); United States v. Lopez-Medina, 596 F.3d 716, 734-36 (10th Cir. 2010); United States 

v. Valdes-Fiallo, 213 Fed.Appx. 957, 961 (11th Cir. 2007). 

                                                  -  17 -                                            2353

----------------------- Page 18-----------------------

        The note that Greenlee gave to the FBI 

               As we have explained, during Greenlee's interview with the FBI,he passed 

a note to the agents in which he declared that he knew about a homicide that Christian 

had committed, and that he knew the locations of the victim's body and the victim's 

vehicle.    At Christian's trial, this note was offered into evidence as a State's exhibit. 

Christian's attorney did not object.   But now, on appeal, Christian argues that this note 

was inadmissible hearsay, and that   the   admission of this note violated his right of 


               Hearsay evidence is admissible if there is no objection. 4        Thus, even if the 

note was offered for a hearsay purpose, it is too late for Christian to object   to the 

evidence on hearsay grounds. 

                This leaves Christian's confrontation clause argument.   Because Christian 

did not raise a confrontation clause objection in the superior court, he must now show 

that the admission of the note amounted to plain error. 

                It  is  true  that  Greenlee's   note   contains   the  assertion   that  Christian 

committed a murder, and (given the circumstances) this assertion was undoubtedly 

"testimonial" for confrontation clause purposes. But the record indicates that the State's 

primary purpose for introducing the note was to explain how Christian became the 

subject of the homicide investigation.   In other words, the State did not rely on the note 

as substantive proof of Christian's guilt, but instead offered it for a non-hearsay purpose. 

    4   Rusenstrom v. Rusenstrom, 981 P.2d 558, 560-61 (Alaska 1999); Bird v. Starkey, 914 

P.2d 1246, 1248 n. 1 (Alaska 1996); Savely v. State, 180 P.3d 961, 962 (Alaska App. 2008); 

Douglas v. State, 166 P.3d 61, 85 (Alaska App. 2007); Cassell v. State, 645 P.2d 219, 220-21 

(Alaska App. 1982). 

                                               -  18 -                                          2353 

----------------------- Page 19-----------------------

And as we have explained, out-of-court statements that are offered for a non-hearsay 

purpose do not violate the confrontation clause. 

               Moreover, there was plenty of witness testimony (testimony to which there 

was no objection) describing the content of the note, and describing how the note came 

into the possession of the authorities.   The introduction of the physical note itself added 

little or nothing to this testimony. 

               In addition, there was a plausible tactical reason for the defense attorney to 

withhold objection to the note (and the testimony describing it).       In summation to the 

jury, the defense attorney argued that Greenlee was much more involved in the homicide 

than he was willing to admit, and that Greenlee pointed the finger at Christian so that he 

might deflect suspicion from himself.   Greenlee's decision to write the note to the FBI 

while he was being interrogated provided support for the defense attorney's theory. 

Thus, there was a plausible reason why the defense attorney would choose not to object 

to the admission of the note. 

               For all of these reasons, the admission of the physical note as an exhibit at 

Christian's trial did not constitute plain error. 

        The photograph of Greenlee 

               Christian also argues that his right of confrontation was violated by the fact 

that a photograph of Greenlee was exhibited to the jurors during the trial.         However, 

Christian offers no explanation of how this photograph constituted testimonial hearsay. 

We therefore reject this confrontation clause argument as inadequately briefed. 

                                            -  19 -                                      2353

----------------------- Page 20-----------------------

       Whether Christian's composite sentence is excessive 

              As we explained toward the beginning of this opinion, Christian received 

a sentence   of 99 years' imprisonment for the crime of first-degree murder, and he 

received a total of 7 years, 2 months' consecutive imprisonment for his other crimes of 

evidence tampering and theft.      Thus, Christian's composite term of imprisonment is 

106 years, 2 months. 

              Christian does not challenge his 99-year sentence for murder, but he argues 

that Judge Volland was clearly mistaken when he imposed the consecutive 7 years, 

2 months. 

              Under Alaska law, a sentencing judge should not impose a composite term 

of imprisonment that exceeds the maximum term of imprisonment for the defendant's 

most serious offense unless the judge finds that the longer sentence is necessary to 

protect the public, or that the longer sentence is necessary to satisfy one or more of the 

other sentencing goals codified in AS 12.55.005. Phelps v. State, 236 P.3d 381, 393-94 

(Alaska App. 2010), construing Neal v. State, 628 P.2d 19, 21 (Alaska 1981). 

              In sentencing Christian, Judge Volland noted that Christian's criminal 

history stretched back to 1980, and that Christian was on felony probation at the time of 

the events in this case.   The judge found that Christian's conduct in the present case 

demonstrated "a degree of brutality not often seen in homicides".        And even though 

Judge Volland rejected the State's contention that Christian subjected Lindstrom to 

substantial torture, the judge found that Christian's actions demonstrated deliberate 

cruelty and a "callousness and depravity that ... shocks the ... conscience". 

              Based   on  Christian's conduct and his criminal history, Judge Volland 

concluded that Christian's previous probation and parole supervision had done nothing 

to deter Christian from engaging in further criminal conduct, and that similar measures 

                                          - 20 -                                      2353

----------------------- Page 21-----------------------

were unlikely to deter Christian in the future.      The   judge declared that Christian's 

likelihood of rehabilitation was "virtually nil". 

              Although Judge Volland never expressly referred to the Neal decision, and 

although the judge never expressly stated that Christian's composite term of 106 years, 

2 months was necessary to protect the public, one can readily infer from Judge Volland's 

sentencing remarks that he reached this conclusion. As the Neal decision recognizes, an 

appellate court may infer an appropriate Neal finding from the sentencing record if that 

record clearly establishes the sentencing judge's reasons for imposing the sentence. 

Neal, 628 P.2d at 21; see also Wheeler v. State, 863 P.2d 858, 860 (Alaska App. 1993); 

O'Brannon v. State, 812 P.2d 222, 232 (Alaska App. 1991). 

              For these reasons, we conclude that the Neal rule was satisfied, and that 

Christian's composite term of imprisonment is not clearly mistaken.  Accordingly, we 

affirm Christian's sentence. 


              With the exception that the superior court must amend the pre-sentence 

report, the judgement of the superior court is AFFIRMED. 

                                          - 21 -                                      2353

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